DRS

Confidential Draft Submitted to the Securities and Exchange Commission on March 25, 2016

As filed with the Securities and Exchange Commission on                     , 2016

Registration No.             

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM S-1

REGISTRATION STATEMENT

Under

the Securities Act of 1933

BLOOM ENERGY CORPORATION

(Exact name of Registrant as specified in its charter)

Delaware	3620	77-0565408
(State or other jurisdiction of incorporation or organization)	(Primary Standard Industrial Classification Code Number)	(I.R.S. Employer Identification Number)

1299 Orleans Drive

Sunnyvale, California 94089

(408) 543-1500

(Address, including zip code, and telephone number, including area code, of Registrant’s principal executive offices)

KR Sridhar

Chief Executive Officer

Bloom Energy Corporation

1299 Orleans Drive

Sunnyvale, California 94089

(408) 543-1500

(Name, address, including zip code, and telephone number, including area code, of agent for service)

Copies to:

Gordon K. Davidson, Esq. Sayre E. Stevick, Esq. Jeffrey R. Vetter, Esq. Fenwick & West LLP Silicon Valley Center 801 California Street Mountain View, California 94041 (650) 988-8500 Shawn M. Soderberg, Esq. Bloom Energy Corporation 1299 Orleans Drive Sunnyvale, California 94089 (408) 543-1500 Alan F. Denenberg, Esq. Davis Polk & Wardwell LLP 1600 El Camino Real Menlo Park, CA 94025 (650) 752-2000

Approximate date of commencement of proposed sale to the public: As soon as practicable after the effective date of this Registration Statement.

If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, check the following box.  ¨

If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.  ¨

If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.  ¨

If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.  ¨

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.

Large accelerated filer	¨	Accelerated filer	¨
Non-accelerated filer	þ  (Do not check if a smaller reporting company)	Smaller reporting company	¨

CALCULATION OF REGISTRATION FEE

Title of Each Class of Securities to be Registered	Proposed Maximum Aggregate Offering Price(1)(2)	Amount of Registration Fee
Common Stock, par value $0.0001 per share

(1) Estimated solely for the purpose of computing the amount of the registration fee pursuant to Rule 457(o) under the Securities Act of 1933, as amended.

(2) Includes the aggregate offering price of additional shares the underwriters have the right to purchase from the Registrant, if any.

The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the Registration Statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a) may determine.

The information in this preliminary prospectus is not complete and may be changed. We and the selling stockholders may not sell these securities until the registration statement filed with the Securities and Exchange Commission is effective. This preliminary prospectus is not an offer to sell nor does it seek an offer to buy these securities in any jurisdiction where the offer or sale is not permitted.

Subject to Completion, dated                     , 2016

Preliminary Prospectus

                SHARES

COMMON STOCK

This is an initial public offering of Bloom Energy Corporation’s shares of common stock. We are offering to sell                  shares in this offering. The selling stockholders identified in this prospectus are offering an additional              shares. We will not receive any of the proceeds from the sale of the shares being sold by the selling stockholders.

Prior to this offering, there has been no public market for the common stock. It is currently estimated that the initial public offering price per share will be between $              and $            .

We intend to list the common stock on the                  under the symbol “BE.”

We are an “emerging growth company” as defined under federal securities laws and, as such, will be subject to reduced public company reporting requirements. Investing in our common stock involves risks. See “Risk Factors” on page 15 to read about factors you should consider before buying shares of common stock.

	Per Share	Total
Initial public offering price	$	$
Underwriting discount (1)	$	$
Proceeds, before expenses, to us	$	$
Proceeds, before expenses, to the selling stockholders	$	$

⁽¹⁾  See “Underwriting” for a description of the compensation payable to the underwriters.

To the extent that the underwriters sell more than              shares of common stock, the underwriters have the option to purchase up to an additional              shares of common stock from us and the selling stockholders at the initial public offering price less the underwriting discount within 30 days from the date of this prospectus.

Neither the Securities and Exchange Commission nor any other regulatory body has approved or disapproved of these securities or passed upon the accuracy or adequacy of this prospectus. Any representation to the contrary is a criminal offense.

The underwriters expect to deliver the shares against payment in New York, New York on             , 2016.

J.P. Morgan	Morgan Stanley
Credit Suisse
BofA Merrill Lynch	Pacific Crest Securities a division of KeyBanc Capital Markets

Baird Cowen and Company              HSBC Raymond James               RBC Capital Markets

Prospectus dated             , 2016

TABLE OF CONTENTS

	Page
Prospectus summary		1
Risk factors		15
Special note regarding forward-looking statements		37
Industry and market data		38
Use of proceeds		39
Dividend policy		39
Capitalization		40
Dilution		42
Letter from our Chief Financial Officer		45
Selected consolidated financial data		48
Management’s discussion and analysis of financial condition and results of operations		54
Business		98
Management		114
Executive compensation		122
Related party transactions		130
Principal and selling stockholders		132
Description of capital stock		135
Shares eligible for future sale		142
Material U.S. federal income tax considerations for non-U.S. holders		145
Underwriting		150
Experts		160
Legal matters		160
Where you can find more information		160
Index to consolidated financial statements		F-1

We are responsible for the information contained in this prospectus and in any free writing prospectus filed with the Securities and Exchange Commission. We, the underwriters and the selling stockholders have not authorized anyone to provide you with additional information or information different from that contained in this prospectus or in any free writing prospectus filed with the Securities and Exchange Commission. We, the underwriters and the selling stockholders are offering to sell, and seeking offers to buy, shares of our common stock only in jurisdictions where offers and sales are permitted. The information in this prospectus is accurate only as of the date of this prospectus, regardless of the time of delivery of this prospectus or any sale of shares of our common stock.

Neither we, the selling stockholders, nor any of the underwriters have done anything that would permit this offering or possession or distribution of this prospectus in any jurisdiction where action for that purpose is required, other than in the United States. Persons outside the United States who obtain this prospectus must inform themselves about, and observe any restrictions relating to, the offering of the shares of common stock and the distribution of this prospectus outside of the United States.

Through and including                     , 2016 (the 25th day after the date of this prospectus), all dealers effecting transactions in these securities, whether or not participating in this offering, may be required to deliver a prospectus. This is in addition to a dealer’s obligation to deliver a prospectus when acting as an underwriter and with respect to an unsold allotment or subscription.

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PROSPECTUS SUMMARY

This summary highlights information contained elsewhere in this prospectus. This summary does not contain all of the information you should consider before buying shares in this offering. Therefore, you should read this entire prospectus carefully, including “Risk Factors,” “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” and our consolidated financial statements and the related notes contained elsewhere in this prospectus. Unless the context requires otherwise, the words “we,” “us,” “our” and “Bloom Energy” refer to Bloom Energy Corporation and its subsidiaries.

BLOOM ENERGY CORPORATION

Overview

Our mission is to make clean, reliable energy affordable for everyone in the world. To fulfill this mission, we have developed an advanced distributed electric power solution that is redefining the $2.5 trillion electric power market and transforming how power is generated and delivered, with the commercial and industrial segments as our initial focus. Our solution, the Bloom Energy Server, is an on-site stationary power generation platform, built for the digital age and capable of delivering uninterrupted, 24x7 base load power that is fault tolerant, resilient and clean. The Bloom Energy Server converts standard low-pressure natural gas or biogas into electricity through an electrochemical process without combustion, resulting in very high conversion efficiencies and lower greenhouse gas emissions than conventional fossil fuel generation such as coal or oil combustion. A typical configuration produces 250 kilowatts of power in a footprint roughly equivalent to that of half of a standard 30 foot shipping container, or approximately 125 times more space-efficient than solar power generation. Any number of these Energy Server systems can be clustered together in various configurations to form solutions from hundreds of kilowatts to many tens of megawatts. The cost of electricity delivered by our solution is often favorable compared to grid-supplied power in the areas where our Energy Servers are deployed. Most importantly, the electricity produced by our systems offers our customers a significant advantage in predictable economics compared to rising and unpredictable grid prices. As a result, our system has been adopted by some of the largest companies in the world, including 24 of the Fortune 100 companies as of December 31, 2015.

The traditional centralized electric grid infrastructure requires significant investment for its maintenance, upgrade and operation, which has been continually driving up the cost of grid power. The electric grid has inherent vulnerabilities and is susceptible to failures due to natural disasters as well as cyber-attacks and physical sabotage. The daisy-chain topology of the centralized grid has a tendency to cascade outages rather than to contain them. Because our on-site stationary power systems are located at the point of consumption, our Energy Servers, when configured with our uninterruptible power module (UPM), largely avoid the existing electric power grid’s inherent vulnerability to outages from weather events and other threats, as well as the additional losses of efficiency associated with the transmission of power over long distances. Our Energy Servers are modular, redundant, and can be “hot swapped,” or serviced without interruption, offering very high availability to our customers.

According to the United Nations Development Programme, 1.3 billion people worldwide live without electricity—more than one in five people around the globe. In emerging countries, where there tends to be an acute shortage of electricity, it is often not economically viable to construct a new centralized grid due to the significant upfront investment required. We believe there is a leap-frogging opportunity in emerging economies to bypass the development or expansion of a centralized electric grid with a network of micro-grids powered by distributed power generation.

The electric grid typically delivers power generated by sources with a high carbon footprint, and there is increasing pressure to reduce resulting carbon dioxide and other greenhouse gas emissions. There is a rising

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demand for uninterruptible, distributed, clean electricity solutions that overcome the challenges of the traditional grid, and can address the requirements of the digital economy by delivering 24x7 electric power, with very high availability, reliability and quality. Our Energy Servers operate on-site at very high efficiencies using natural gas or biogas, offering significant greenhouse gas reductions, and, unlike prevalent renewable technologies such as wind and solar, provide a viable alternative to base load electricity generated by a central power plant.

We designed our solution as an alternative to the electric grid, with our value proposition centered on reliability, resiliency and sustainability, combined with attractive and predictable economics. Our systems deliver 24x7, clean base load power customized for today’s digital world, with high predictability and certainty of value for our customers over the long term. We have invested over $1.5 billion into building our company and developing our solution, and have continuously innovated and evolved our technology over time. Our latest solution is significantly less expensive to produce than our first commercially deployed solution in 2008, allowing us to expand our target markets. Our team has decades of experience in the various specialized disciplines and systems engineering concepts unique to this technology. We had 147 issued patents in the United States and 60 issued patents internationally as of December 31, 2015.

Our solution is capable of addressing customer needs across a wide range of industry verticals, including big box retail and grocery stores, corporate campuses, telecommunications and advanced data centers. However, we believe that we are capturing only a small percentage of our largest customers’ total energy spend, which gives us a significant opportunity for growth, particularly as the price of grid power increases in areas where our customers have additional sites. As of the end of 2015, we had 187 megawatts in total deployed systems and an additional product sales backlog of 87.9 megawatts.

Industry Background

People around the world depend upon access to reliable and affordable electric power for a healthy, functioning economy and for delivery of essential services. According to Marketline, the market for electric power is one of the largest sectors of the global economy with an annual spend of $2.5 trillion in 2014, and is projected to grow at a compound annual growth rate of 7.6% to $3.6 trillion in 2019.

There are numerous challenges driving a transformation in how electricity is produced, delivered and consumed. We believe that this transformation will be similar to the seismic shifts seen in the computer and telecommunications industries, from centralized mainframe computing and landline telephone systems to ubiquitous and highly personalized distributed technologies.

Some of the key challenges facing the electric power market are:

Increasing costs to maintain and operate the existing electric grid

The U.S. Department of Energy has recently described the U.S. electricity grid as “aging, inefficient, congested, and incapable of meeting the future energy needs of the information economy,” while the American Society of Civil Engineers gave the U.S. energy infrastructure a grade of D+ in 2013. The electric power grid has suffered from insufficient investment in critical infrastructure. The Edison Electric Institute estimated that between 2015 and 2017, U.S. investor-owned electric utilities will need to make total capital expenditure investments of approximately $300 billion.

Inherent vulnerability of existing grid design

The existing electric grid architecture features centralized, monolithic power plants and mostly above-ground transmission and distribution wires. This design has numerous points of failure and limited redundancy,

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and the daisy-chain topology can cascade outages rather than contain them. For example, in 2003, an initial failure blamed on a tree branch in Ohio set off outages that cascaded across eight states and parts of Canada, cutting power for 50 million people.

Furthermore, the limits of this design, coupled with aging and underinvested infrastructure, leaves the grid vulnerable to natural disasters. The U.S. Council of Economic Advisers and the U.S. Department of Energy estimate that weather-related electricity outages cost the U.S. economy up to $335 billion between 2003 and 2012. Some of these natural disasters are increasing in frequency and severity, a trend expected to continue due to climate change and other factors, which will likely increase the cost of grid-supplied power to customers.

There is also increasing concern over the threat of cyber-attack and physical sabotage to the centralized grid infrastructure.

Lack of access to affordable and reliable electricity in developing countries

According to the United Nations Development Programme, 1.3 billion people worldwide live without electricity—more than one in five people around the globe. For developing countries to grow their economies, they must expand access to reliable and affordable electric power. Building a centralized grid system, in addition to its inherent limitations, can also be infeasible due to the lack of adequate capital for upfront investment. Moreover, in dense urban areas, the costs of building this infrastructure are compounded by a lack of urban planning. In rural areas, using the centralized model to transmit and distribute electricity to low-density populations is economically unviable. As a result, we believe these countries are likely to develop a hybrid solution consisting of both centralized and distributed electrical power infrastructure to accelerate availability of power.

Increasing concern over climate change

In response to rising concern over climate change, the 2015 Paris COP21 climate talks resulted in a global consensus that the rate of release of carbon dioxide and other greenhouse gases must be reduced with an increased sense of urgency. The electric power sector, which today produces more greenhouse gases than any other sector of the global economy, is under increasing pressure to do its part. Policy initiatives to reduce greenhouse gases from power generation are widespread, including renewable portfolio standards, or mandated targets for low- or zero-carbon power generation, and EPA directives limiting carbon emissions from power generation.

Intermittent generation sources negatively impacting grid stability

According to the Department of Energy’s Quadrennial Energy Review in 2015, electricity generation from wind grew over three-fold while solar grew over 20-fold between 2008 and 2014. While these renewable sources help to reduce greenhouse gas emissions, they provide only intermittent power to the grid, which compromises the grid’s ability to deliver 24x7 reliable electric power. As the penetration of these resources increases, balancing real-time supply and demand becomes more challenging and costly.

Due to these challenges, we need 24x7 electric power solutions that are reliable, clean and without the shortcomings of the existing grid infrastructure. This need is especially acute in the commercial and industrial (C&I) segments, representing 68% of global electricity consumption, according to Marketline, where cost and reliability have a direct impact on profitability and business sustainability.

Our Solution

Our Bloom Energy Server is an advanced distributed power generation system that delivers clean, always-on, primary base load power on-site.

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The Bloom Energy Server is based on our proprietary solid oxide fuel cell technology, which converts fuel into electricity through an electrochemical process without combustion. The only input to the system is standard low-pressure natural gas or biogas from municipal gas lines. The high-quality electrical output of the Energy Server is connected to the customer’s main electrical feed, capable of avoiding the transmission and distribution losses associated with the centralized grid system. Each Bloom Energy Server is modular and composed of independent 50 kilowatt power modules. A typical configuration includes multiple power modules in a single Energy Server, which produces 250 kilowatts of power in a footprint roughly equivalent to that of half a standard 30 foot shipping container, or approximately 125 times more space-efficient than solar power generation. Any number of these Energy Server systems can be clustered together in various configurations to form solutions from hundreds of kilowatts to many tens of megawatts. The Bloom Energy Server provides a single core technology platform that is easily customizable and upgradeable to add new features and capabilities. The Bloom Energy Server is easily integrated into corporate environments due to its aesthetically attractive design, compact space requirement, minimal noise profile and lack of harmful emissions.

Our Value Proposition

Our value proposition is supported by four key pillars: reliability, resiliency, sustainability and predictable economics. While the relative importance of these attributes can vary by customer, the combination of these four factors is a significant differentiator for us in the marketplace. We provide a complete, integrated “behind-the-meter” solution including installation, equipment, service, maintenance and, in some cases, bundled fuel. The four elements of our value proposition emphasize those areas where there is a strong customer need and where we believe we can deliver superior performance.

Reliability. Our Energy Servers deliver always-on, 24x7 base load power that can be used with or without complementary intermittent power sources. The output of our Energy Servers is designed to meet the requirements of the digital economy, with very high availability of power, mission-critical reliability and grid-independent capabilities. Bloom provides highly customizable power. The Bloom Energy Server can be configured to eliminate the need for traditional backup power equipment such as diesel generators, batteries or UPS systems.

Resiliency. Our Energy Servers avoid the vulnerabilities of conventional transmission and distribution lines by generating power on-site. The system operates at very high availability due to its modular and fault-tolerant design, which includes multiple independent power generation modules that are hot swappable. Importantly, our systems utilize the reliable and resilient natural gas infrastructure, which is a mesh network buried underground, unlike the daisy chain, above-ground electric grid architecture. A failure at one point in the natural gas system does not necessarily cause the same kind of cascading failure that can occur on the electrical grid.

Sustainability. Our Energy Servers are fuel-flexible, enabling our customers to choose the fuel source that best fits their needs based on availability, cost and carbon footprint. When running on natural gas, compared to average emissions across the U.S. grid, Bloom Energy Servers reduce carbon emissions by over 50%. Bloom Energy Servers can also utilize renewable biogas to generate carbon-neutral electricity. In both cases, our Energy Servers emit virtually no criteria air pollutants, including NOx or SOx.

Bloom Energy Servers use virtually no water in normal operation. On average, to produce one megawatt per hour for a year, thermoelectric power generation for the U.S. grid consumes approximately 156 million gallons of water more than Bloom Energy Servers.

Predictable economics. In contrast to the rising and unpredictable cost outlook for grid electricity, we offer our customers the ability to lock in cost for electric power over the long term. We provide customers with a solution that includes all of the fixed equipment and maintenance costs for the life of the contract. We also enable our customers to scale from a few hundred kilowatts to many megawatts on a “pay-as-you-grow” basis.

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Factors Driving Customer Adoption

Key factors that are driving the rapid adoption of our solution include:

Customers are driving a growing requirement for high-quality and reliable power in the increasingly pervasive digital economy. The proliferation of cloud services and big data, and the associated explosion in demand for computing power, is reshaping the type and quality of power demanded by the digital economy. For providers and users of cloud services, uninterruptible, high-quality power is essential—requirements that the legacy grid is struggling to meet. Our highly available and scalable solution can replace the current patchwork of solutions, which include surge protectors, UPS and back-up generators.

Customers are seeking an alternative to the unpredictable and rising price of grid power. Grid costs in the United States have been rising for decades and are expected to continue to rise over the long term. In the shorter term, grid prices can be volatile, driven by regulatory judgments, commodity prices and the impact of external events such as weather. In contrast, we offer a complete turn-key solution that can provide customers with a competitive and predictable cost for their electricity for periods of up to 20 years.

Our technology is proven with industry-leading customers. Our approach to innovation is evolutionary—every generation of our technology builds on a proven core and factors in lessons learned from our broadly deployed fleet. Our systems have been deployed with Fortune 500 customers since 2008 and have reached 187 megawatts in total. Our systems have operated without disruption through natural disasters such as Hurricane Sandy and the 6.0 Richter scale earthquake near Napa, California in 2014.

The natural gas revolution has provided an economically attractive means for achieving carbon reduction. Natural gas, an important bridge fuel to the lower-carbon future, is now in abundant supply at economically attractive prices. This abundance, coupled with new technologies such as our Energy Servers that convert this fuel into electricity at high efficiency, will play a major role in replacing high-carbon fuels such as coal and oil.

Our Growth Strategy

Our growth strategies include:

Maintain technology leadership and leverage first-mover advantage

Our technology leadership is considerable and we have a well-established track record of continuous improvement. Our priority is to continue to advance our technology and build on this leadership position.

Significant and sustained improvements in “power density.” We have continually added more generation capacity into the same footprint and expect to continue to do so with successive generations of our technology. Today’s Bloom Energy Servers are capable of delivering five times the power of our first-generation system only five years ago, while staying within approximately the same service footprint. It is also an increasingly powerful differentiator versus other solutions such as solar, which requires at least 125 times more space—which is often unavailable—to deliver the same amount of power as one Bloom Energy Server does today.

Continual increases in electrical efficiency. Efficiency is defined as the percentage of the energy in the fuel that is converted to electricity. The higher the efficiency, the less fuel used to generate a given unit of electric power output, resulting in lower fuel costs. Today our Energy Servers are significantly more efficient than the average of the U.S. grid. The latest generation of our Energy Servers, which began shipping in 2015, is capable of beginning-of-life efficiencies of 65%, and we expect to further improve the efficiency in succeeding generations.

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Expanded feature sets and sizing options to address new market opportunities. The Bloom Energy Server platform provides the hardware and software building blocks that can be deployed in different configurations to provide market-specific solutions. For example, we may provide smaller or custom solutions which could allow us to address additional markets, such as powering cell sites, franchise retail, multi-tenant housing and large industrial applications.

Grow wallet share with existing customers and acquire new customers

We employ a “land and expand” model, in which our strategy is to prove the value of Bloom solutions to our customers, establish incumbency and grow share of wallet as we create more value across more of our customers’ facilities over time. Approximately three quarters of our sales volume since 2011 has been derived from repeat customers. These repeat orders provide better visibility into our sales pipeline and also lower our cost of sales. We currently target primarily Fortune 500 customers with very significant electric power spend. Given our customers’ large total electric power spend, we view the current low penetration rate as a significant opportunity for growth. The successful adoption of our solution by industry leaders has also encouraged new customers of similar scale and electricity demand to follow suit. As a result, while volume has been driven by repeat customers, the majority of new sales contracts since 2011 are with new customers.

Drive production cost reductions to expand our market

Since our initial commercial deployments eight years ago, we have continually brought the production cost of our systems down. We expect technology innovation to drive further reductions as each successive generation of Bloom Energy Servers builds on the design and field experience of all previous generations. As our production costs continue to decrease this will enable us to expand into new markets. Furthermore, we expect that increased production volumes will lead to further cost reductions, enabling improved margins. On a per unit basis, which we measure in dollars-per-kilowatt, we have reduced our material costs by over 75% from the inception of our first generation Energy Server to our current generation Energy Server. Material costs per unit came down by more than 50% over the life of our first generation system and by over 40% over the life of our second generation system. With each successive new generation, we have been able to reduce the material costs compared to the prior generation’s material costs: Our second generation had material costs at the start of production that were approximately 60% lower per kilowatt than our first generation and our third generation had material costs at the start of production that were more than 35% lower per kilowatt than our second generation.

Expand into international markets and new fast-growing segments

International. Most of our current and target customers have global footprints, which we expect will be another avenue for growth while also lowering the cost and risk of new market entry. Today, we have installations in Japan and India.

We also target fast-growing segments where we believe we can deliver significant value including data centers and critical facilities such as distribution centers, which cannot suffer even a momentary disruption to power without significant negative consequences.

Data Centers. According to Technavio, a leading market research company, the global data center power market was valued at $9.9 billion in 2014 and is expected to reach $18.7 billion by 2019, growing at a compound annual growth rate of 14%. We are well positioned in the data center power market, with the capability to provide primary power for data centers with up to Tier III availability and reliability without reliance on traditional backup or power conditioning equipment.

Micro-Grids. To mitigate the risk of grid power outages, there is significant and growing interest in micro-grids, which combine distributed power generation and storage into a network that can be isolated from the larger grid. According to Technavio, the global micro-grid market was valued at $9.2 billion in 2014 and is expected to reach $21.8 billion by 2019, growing at a compound annual growth rate of 19%. We are well positioned to

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compete in this market by providing a field-customizable, on-site, always-on base load power generation system—a key requirement for a micro-grid solution.

Provide innovative financing options to our customers

We intend to continue to assist our customers by providing innovative financing options to purchase our solution and grow our market opportunity. Our customers can purchase our systems outright, with operations and maintenance services contracts, or purchase the electricity that our Energy Servers produce without any upfront costs, through various financing vehicles, including leases and power purchase agreements (PPAs).

Risk Factors

Our business is subject to many risks and uncertainties, as more fully described under “Risk Factors” and elsewhere in this prospectus. For example, you should be aware of the following before investing in our common stock:

• our limited operating history and our nascent industry makes evaluating our business and future prospects difficult;

• the distributed generation industry is an emerging market and distributed generation may not receive widespread market acceptance;

• we have incurred significant losses in the past and we do not expect to be profitable for the foreseeable future;

• our Energy Servers have significant upfront costs, and we will need to attract investors to help customers finance purchases;

• if our Energy Servers contain manufacturing defects, our business and financial results could be harmed;

• if our estimates of useful life for our Energy Servers are inaccurate or we do not meet service and performance warranties and guarantees, our business and financial results could be harmed;

• our business currently depends on the availability of rebates, tax credits and other financial incentives. The reduction, modification, or elimination of government economic incentives could cause our revenue to decline and harm our financial results;

• we rely on tax equity financing arrangements to realize the benefits provided by investment tax credits and accelerated tax depreciation;

• we derive a substantial portion of our revenue and backlog from a limited number of customers, and the loss of, or a significant reduction in orders from, a large customer could have a material adverse effect on our operating results and other key metrics;

• our products involve a lengthy sales and installation cycle, and if we fail to close sales on a regular and timely basis it could harm our business;

• our business is subject to risks associated with construction, cost overruns and delays, including those related to obtaining government permits, and other contingencies that may arise in the course of completing installations;

• the failure of our suppliers to continue to deliver necessary raw materials or other components of our Energy Servers in a timely manner could prevent us from delivering our products within required time frames, and could cause installation delays, cancellations, penalty payments and damage to our reputation;

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• our financial condition and results of operations and other key metrics are likely to fluctuate on a quarterly basis in future periods, which could cause our results for a particular period to fall below expectations, resulting in a severe decline in the price of our common stock;

• we must maintain customer confidence in our liquidity and long-term business prospects in order to grow our business; and

• a material decrease in the retail price of utility-generated electricity or an increase in the price of natural gas would affect demand for our Energy Servers.

Corporate Information

We were incorporated in the State of Delaware on January 18, 2001 as Ion America Corporation. On September 20, 2006, we changed our name to Bloom Energy Corporation. Our principal executive offices are located at 1299 Orleans Drive, Sunnyvale, California 94089, and our telephone number is (408) 543-1500. Our website address is www.bloomenergy.com. The information on, or that can be accessed through, our website is not part of this prospectus and the inclusion of our website address in this prospectus is an inactive textual reference only.

“Bloom Energy” is our registered trademark in the United States and is registered in Japan, India, Australia, the European Union and under the Madrid Protocol. Our other registered trademarks and service marks in the United States include: Energy Server, Bloom Electrons, Bloomconnect, Bloomenergy, Bloom Box and BE. This prospectus also contains trademarks, service marks and trade names of other companies. We do not intend for our use or display of other companies’ trade names, trademarks or service marks to imply a relationship with, or endorsement or sponsorship of, us by these other companies.

Implications of Being an Emerging Growth Company

As a company with less than $1.0 billion in revenue during our last completed fiscal year, we qualify as an “emerging growth company” as defined in the Jumpstart Our Business Startups Act of 2012, or the JOBS Act. An emerging growth company may take advantage of specified reduced reporting requirements that are otherwise applicable generally to public companies. These reduced reporting requirements include:

• an exemption from compliance with the auditor attestation requirement on the effectiveness of our internal control over financial reporting;

• an exemption from compliance with any requirement that the Public Company Accounting Oversight Board may adopt regarding mandatory audit firm rotation or a supplement to the auditor’s report providing additional information about the audit and the financial statements;

• reduced disclosure about our executive compensation arrangements;

• an exemption from the requirements to obtain a non-binding advisory vote on executive compensation or a stockholder approval of any golden parachute arrangements; and

• extended transition periods for complying with new or revised accounting standards.

We will remain an emerging growth company until the earliest to occur of: (1) the end of the first fiscal year in which our annual gross revenue is $1.0 billion or more; (2) the end of the first fiscal year in which we are deemed to be a “large accelerated filer,” as defined in the Securities Exchange Act of 1934, as amended, or the Exchange Act; (3) the date on which we have, during the previous three-year period, issued more than $1.0 billion in non-convertible debt securities; and (4) the end of the fiscal year during which the fifth anniversary of this offering occurs. We may choose to take advantage of some, but not all, of the available benefits under the

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JOBS Act. We are choosing to irrevocably “opt out” of the extended transition periods available under the JOBS Act for complying with new or revised accounting standards, but we currently intend to take advantage of the other exemptions discussed above. Accordingly, the information contained herein may be different than the information you receive from other public companies in which you hold stock.

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THE OFFERING

Common stock offered by us	shares
Common stock offered by the selling stockholders	shares
Total common stock offered	shares
Common stock outstanding after this offering	shares
Option to purchase additional shares of our common stock from us	shares
Option to purchase additional shares of our common stock from the selling stockholders	shares
Use of proceeds	We estimate that the net proceeds from the sale of shares of our common stock that we are selling in this offering will be approximately $        million, based on an assumed initial public offering price of $        per share, which is the midpoint of the price range set forth on the cover page of this prospectus, after deducting estimated underwriting discounts and commissions and estimated offering expenses payable by us. We will not receive any proceeds from the sale of shares of common stock by the selling stockholders.
	We intend to use the net proceeds from this offering for general corporate purposes, including research and development and sales and marketing activities, general and administrative matters and capital expenditures. See “Use of Proceeds.”
Proposed             symbol	“BE”
Risk factors	See “Risk Factors” and other information included in this prospectus for a discussion of factors you should carefully consider before deciding to invest in shares of our common stock.

The number of shares of our common stock to be outstanding after this offering is based on 131,314,076 shares of our common stock outstanding as of December 31, 2015, and excludes:

• 12,660,639 shares of our common stock issuable upon exercise of outstanding stock options as of December 31, 2015 with a weighted average exercise price of $14.38 per share under our 2002 Equity Incentive Plan and 2012 Equity Incentive Plan;

• 556,303 shares of our common stock issuable upon settlement of restricted stock units (RSUs) outstanding as of December 31, 2015 under our 2012 Equity Incentive Plan;

• 50,000 shares of our common stock issuable upon the exercise of outstanding warrants to purchase common stock as of December 31, 2015, with an exercise price of $25.76 per share;

• 1,554,445 shares of our common stock issuable upon the exercise of outstanding warrants to purchase Series F convertible preferred stock and Series G convertible preferred stock as of December 31, 2015, with a weighted average exercise price of $20.47 per share, which, if not exercised prior to the completion of this offering, shall convert in accordance with their terms into warrants to purchase common stock;

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• up to 400,000 shares of our common stock issuable to one of our customers on the occurrence of certain installation milestones;

• 200,000 shares of common stock issuable 180 days from the date of this prospectus. These shares will be issued as part of a dispute settlement with a securities placement agent as described in “Description of Capital Stock—Securities Acquisition Agreement”;

•              shares of our common stock issuable upon the conversion of our outstanding 5.0% Convertible Senior Secured PIK Notes due 2020 (5% Notes) as of December 31, 2015, based on an assumed initial public offering price of $        per share, which is the midpoint of the price range set forth on the cover page of this prospectus, which notes will be convertible at the option of the holders thereof following the completion of this offering (for each $1.00 increase or decrease in the public offering price per share, the number of shares issuable upon such conversion would increase or decrease, as applicable, by              shares); and

•              shares of common stock reserved for future issuance under our equity-based compensation plans, consisting of 1,419,954 shares of common stock reserved for issuance under our 2012 Equity Incentive Plan as of December 31, 2015,            shares of common stock reserved for issuance under our 2016 Equity Incentive Plan, and            shares of common stock reserved for issuance under our 2016 Employee Stock Purchase Plan, and excluding shares that become available under the 2016 Equity Incentive Plan and 2016 Employee Stock Purchase Plan pursuant to provisions of these plans that automatically increase the share reserves each year, as more fully described in “Executive Compensation—Employee Benefit Plans.”

Except as otherwise indicated, all information in this prospectus assumes:

• the automatic conversion of all outstanding shares of our convertible redeemable preferred stock into an aggregate of 107,425,783 shares of common stock, effective upon the closing of this offering;

• the automatic conversion of all of our outstanding 8% subordinated secured convertible promissory notes (8% Notes) into shares of our Series G convertible redeemable preferred stock at a per share price of $25.76 as of December 31, 2015, and the subsequent automatic conversion of such shares of Series G convertible redeemable preferred stock into an aggregate of 8,097,795 shares of common stock effective upon the closing of this offering;

• no issuance of shares upon the exercise or settlement of outstanding stock options, warrants or restricted stock units subsequent to December 31, 2015, except for an aggregate of 413,261 shares of common stock that we expect to issue upon the exercise of outstanding warrants exercisable for shares of our Series F convertible preferred stock, which warrants would otherwise expire immediately prior to the completion of this offering;

• the issuance and exercise of warrants to purchase 469,333 shares of our common stock at an exercise price of $0.01 per share to certain purchasers of our 5% Notes, as described in “Description of Capital Stock—5.0% Convertible Senior Secured PIK Notes due 2020,” which warrants will automatically be deemed exercised pursuant to their terms immediately prior to the completion of this offering;

• the filing of our amended and restated certificate of incorporation and adoption of our amended and restated bylaws immediately prior to the closing of this offering; and

• the underwriters will not exercise their option to purchase additional shares of common stock from us and the selling stockholders in this offering.

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SUMMARY CONSOLIDATED FINANCIAL AND OTHER DATA

You should read the summary consolidated financial data set forth below in conjunction with our consolidated financial statements, the notes to our consolidated financial statements and “Management’s Discussion and Analysis of Financial Condition and Results of Operations” contained elsewhere in this prospectus.

The summary consolidated statements of operations data for the years ended December 31, 2014 and 2015 and the consolidated balance sheet data as of December 31, 2015 are derived from our audited consolidated financial statements included elsewhere in this prospectus. You should read the following selected consolidated financial data below in conjunction with “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and the consolidated financial statements, related notes and other financial information included elsewhere in this prospectus. Our historical results are not necessarily indicative of the results to be expected in the future. The selected consolidated financial data in this section are not intended to replace the consolidated financial statements and are qualified in their entirety by the consolidated financial statements and related notes included elsewhere in this prospectus.

Please see the section titled “Management’s Discussion and Analysis of Financial Condition and Results of Operations—Key Operating Metrics” for information regarding how we define our system acceptances and total megawatts deployed, and the section titled “Management’s Discussion and Analysis of Financial Condition and Results of Operations—Non-GAAP Measures” for information regarding how we define non-GAAP total revenue, non-GAAP gross profit (loss) and non-GAAP loss from operations and the limitations of those measures.

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	Years Ended December 31,
	2014			2015
	(in thousands, except operating metrics and per share data)
Consolidated statements of operations data:
Revenue
Product	$	174,450		$	122,441
Service		26,437			36,944
Electricity		47,253			55,311
Subtotal		248,140			214,696
PPA I decommissioning		—			(41,807	)
Total revenue		248,140			172,889
Cost of revenue
Product		231,800			187,731
Service		105,657			135,470
Electricity		24,305			31,372
Total cost of revenue		361,762			354,573
Gross profit (loss)		(113,622	)		(181,684	)
Operating expenses
Research and development		53,001			43,933
Sales and marketing		16,434			19,543
General and administrative		50,573			58,976
Total operating expenses		120,008			122,452
Loss from operations		(233,630	)		(304,136	)
Interest expense		(21,606	)		(40,633	)
Other expense, net		(4,350	)		(2,891	)
Gain (loss) on revaluation of warrant liabilities		(1,825	)		2,686
Loss before income taxes		(261,411	)		(344,974	)
Income tax provision		574			707
Net loss		(261,985	)		(345,681	)
Net loss attributable to noncontrolling interest and redeemable noncontrolling interests		(44,369	)		(4,678	)
Net loss attributable to common stockholders	$	(217,616	)	$	(341,003	)
Net loss per share attributable to common stockholders, basic and diluted	$	(15.45	)	$	(23.34	)
Weighted average shares used to compute net loss per share attributable to common stockholders, basic and diluted		14,088			14,611
Pro forma net loss per share attributable to common stockholders, basic and diluted				$	(2.61	)
Pro forma weighted average shares used to compute pro forma net loss per share attributable to common stockholders, basic and diluted					130,554
Key operating metrics:
Acceptances during the period (in 100 kilowatt systems)		351			349
Total megawatts deployed as of the year ended		152			187

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Our consolidated balance sheet as of December 31, 2015 is presented on:

• an actual basis;

• a pro forma basis to give effect to (i) the automatic conversion of all outstanding shares of our preferred stock into 107,425,783 shares of common stock immediately prior to the closing of this offering, (ii) the automatic conversion of all outstanding 8% Notes to Series G convertible preferred stock at a per share price of $25.76, and the conversion of such Series G convertible preferred stock into 8,097,795 shares of common stock immediately prior to the completion of this offering, (iii) the issuance and exercise of warrants to purchase 469,333 shares of our common stock at an exercise price of $0.01 per share to certain purchasers of our 5% Notes, as described in “Description of Capital Stock—5.0% Convertible Senior Secured PIK Notes due 2020,” which warrants will automatically be deemed exercised pursuant to their terms immediately prior to the completion of this offering, and (iv) the effectiveness of our amended and restated certificate of incorporation immediately prior to the completion of this offering; and

• a pro forma as adjusted basis to give effect to (i) the pro forma adjustments set forth above, (ii) the issuance of 413,261 shares of common stock that we expect to issue upon the exercise of warrants that would expire if not exercised prior to the completion of this offering, and (iii) the sale and issuance of             shares of common stock by us in this offering at an assumed initial public offering price of $        per share, which is the midpoint of the price range on the cover of this prospectus, and after deducting estimated underwriting discounts and commissions and estimated offering expenses payable by us.

	As of December 31, 2015
	Actual			Pro Forma			Pro Forma As Adjusted(1)
	(in thousands)
Consolidated balance sheet data:
Cash and cash equivalents	$	135,030		$	135,035		$
Working capital		169,028			169,028
Total assets		944,501			944,501
Non-recourse PPA entity debt		330,403			330,403
Recourse debt		309,579			100,980
Total liabilities		1,038,652			830,048
Convertible redeemable preferred stock		1,459,506			—
Stockholders’ deficit		(1,686,784	)		(18,674	)

⁽¹⁾  Each $1.00 increase or decrease in the assumed initial public offering price of $        per share, the midpoint of the price range on the cover of this prospectus, would increase or decrease, as applicable, our cash and cash equivalents, working capital, total assets and stockholders’ deficit by approximately $        million, assuming that the number of shares we offer, as stated on the cover page of this prospectus, remains the same and after deducting the estimated underwriting discounts and commissions.

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RISK FACTORS

Investing in our common stock involves a high degree of risk. You should carefully consider these risk factors, together with all of the other information included in this prospectus, including the section titled “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and the consolidated financial statements and related notes, before you decide to purchase shares of our common stock. While we believe the risks and uncertainties described below include all material risks currently known by us, it is possible that these may not be the only ones we face. If any of the risks actually occur, our business, financial condition, operating results and prospects could be materially and adversely affected. In that event, the market price of our common stock could decline, and you could lose part or all of your investment.

Risks Relating to Our Business and Industry

Our limited operating history and our nascent industry makes evaluating our business and future prospects difficult.

From our inception in 2001 through 2008, we were focused principally on research and development activities relating to our Energy Server technology. We did not deploy our first Energy Server and did not recognize any revenue until 2008. As a result, we have a limited history operating our business at its current scale, and therefore a limited history upon which you can base an investment decision.

Our Energy Server is a new type of product in the nascent distributed energy industry. Predicting our future revenue and appropriately budgeting for our expenses is difficult, and we have limited insight into trends that may emerge and affect our business. If actual results differ from our estimates or we adjust our estimates in future periods, our operating results and financial position could be materially and adversely affected. You should consider our prospects in light of the risks and uncertainties emerging companies encounter when introducing a new product into a nascent industry.

The distributed generation industry is an emerging market and distributed generation may not receive widespread market acceptance.

The distributed generation industry is still relatively nascent, and we cannot be sure that potential customers will accept distributed generation more broadly, or our Energy Server products more specifically. Enterprises may be unwilling to adopt our solution over traditional or competing power sources for any number of reasons including the perception that our technology is unproven, lack of confidence in our business model and lack of awareness of our product. Because this is an emerging industry, broad acceptance of our products and service is subject to a high level of uncertainty and risk. If the market develops more slowly than we anticipate, our business will be harmed.

We have incurred significant losses in the past and we do not expect to be profitable for the foreseeable future.

Since our inception in 2001, we have incurred significant net losses and have used significant cash in our business. As of December 31, 2015, we had an accumulated deficit of $1.8 billion. We expect to continue to expand our operations, including by investing in manufacturing, sales and marketing, research and development, staffing systems and infrastructure to support our growth. We anticipate that we will incur net losses for the foreseeable future. Our ability to achieve profitability in the future will depend on a number of factors, including:

• growing our sales volume;

• increasing sales to existing customers and attracting new customers;

• attracting and retaining financing partners who are willing to provide financing for sales on a timely basis and with attractive terms;

• continuing to improve the useful life of our fuel cell technology and reducing our warranty servicing costs;

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• reducing the cost of producing our Energy Servers;

• improving the efficiency and predictability of our installation process;

• improving the effectiveness of our sales and marketing activities; and

• attracting and retaining key talent in a competitive marketplace.

Even if we do achieve profitability, we may be unable to sustain or increase our profitability in the future.

Our Energy Servers have significant upfront costs, and we will need to attract investors to help customers finance purchases.

Our Energy Servers have significant upfront costs. In order to assist our customers in obtaining financing for our products, we have leasing programs with two leasing partners who have prequalified our product and provide financing for customers both in the form of traditional leasing and in sale-leaseback sublease arrangements we refer to as managed services. In addition to the leasing model, we also offer power purchase agreements (PPAs) in which the cost of the Energy Server is funded by an investment entity which is financed by us and third-party investors (PPA entities).

We will need to grow committed financing capacity with existing partners, or attract additional partners to support our growth, and these partners may discontinue their relationship with us at any time. Our ability to attract third-party financing depends on many factors that are outside of our control, including the investors’ ability to utilize tax credits and other government incentives, our perceived creditworthiness and the condition of credit markets generally. Our leasing partners’ financing of customer purchases is subject to certain conditions, and if these conditions are not satisfied, we could experience cancellations and an adverse effect on our revenue in a particular period. We currently have committed funding from our PPA entities for new PPAs through December 31, 2016; however, such funding may not be adequate, and it is subject to certain conditions. If we are unable to help our customers arrange financing for our Energy Servers, our business will be harmed.

If our Energy Servers contain manufacturing defects, our business and financial results could be harmed.

Our Energy Servers are complex products, and they may contain undetected or latent errors or defects. In the past, we have experienced latent defects, only discovered once the Energy Server is deployed in the field. Field conditions such as the quality of the natural gas supply and utility processes which vary by region have affected the performance of our Energy Servers and are not always possible to predict until the system is in operation. Although we believe we have designed new generations of Energy Servers to better withstand the variety of field conditions we have encountered, as we move into new geographies, we may encounter new and unanticipated field conditions. Changes in our supply chain or the failure of our suppliers to otherwise provide us with components or materials that meet our specifications could also introduce defects into our products. In addition, as we grow our manufacturing volume, the chance of manufacturing defects could increase. Any manufacturing defects or other failures of our Energy Servers to perform as expected could cause us to incur significant re-engineering costs, divert the attention of our engineering personnel from product development efforts and significantly and adversely affect customer satisfaction, market acceptance and our business reputation.

If our estimates of useful life for our Energy Servers are inaccurate or we do not meet service and performance warranties and guarantees, our business and financial results could be harmed.

We generally offer our customers the opportunity to renew their operations and maintenance service agreements on an annual basis, for up to 20 years, at prices predetermined at the time of purchase of the Energy Server. Our pricing of these contracts and our reserves for warranty and replacement are based upon our estimates of the life of our Energy Servers and certain of their components. We also provide performance

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warranties and guarantees covering the efficiency and output performance of our Energy Servers. We do not have a long history with a large number of field deployments, and our estimates may prove to be incorrect. Failure to meet these performance warranties and guarantee levels may require us to replace the Energy Servers or refund their cost to the customer, or require us to make cash payments to the customer based on actual performance, as compared to expected performance, capped at a percentage of the relevant equipment purchase prices. Early generations of our Energy Server did not have the useful life and did not perform at an output and efficiency level that we expected. As further described in “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” we are implementing a fleet decommissioning program for our early generation Energy Servers, which resulted in a significant adjustment to revenue in the quarter ended December 31, 2015, as we would otherwise have failed to meet efficiency and output warranties. We accrue for product warranty costs and recognize losses on service or performance warranties based on our estimates of costs that may be incurred and historical experience; however, actual warranty expenses have in the past been and may in the future be greater than we have assumed in our estimates, the accuracy of which may be hindered due to our limited operating history operating at our current scale.

Our business currently depends on the availability of rebates, tax credits and other financial incentives. The reduction, modification, or elimination of government economic incentives could cause our revenue to decline and harm our financial results.

The U.S. federal government and certain state and local governments provide incentives to end users and purchasers of our Energy Servers in the form of rebates, tax credits and other financial incentives, such as system performance payments and payments for renewable energy credits associated with renewable energy generation. We rely on these governmental rebates, tax credits and other financial incentives to significantly lower the effective price of the Energy Servers to our customers in the United States, including by lowering the cost of capital to our customers, as our financing partners and PPA tax equity investors may take advantage of these financial incentives. However, these incentives may expire on a particular date, end when the allocated funding is exhausted, or be reduced or terminated as a matter of regulatory or legislative policy.

Currently, the U.S. federal government offers a 30% Investment Tax Credit under Section 48 of the Internal Revenue Code, or the federal business energy investment tax credit (ITC), for the installation of certain fuel cell properties. Without government action, this tax credit will terminate for fuel cells installed after December 31, 2016. The credit is equal to 30% of expenditures applied against system cost and installation, and the credit for fuel cells is capped at $1,500 per 0.5 kilowatt of capacity. In addition to the ITC, our Energy Servers have qualified for tax exemptions, incentives, or other customer incentives in many states including the states of New Jersey, Connecticut, New York and California. Some states have utility procurement programs and/or renewable portfolio standards for which our technology is eligible. Our Energy Servers are currently installed in 10 U.S. states, each of which may have its own enabling policy framework. There is no guarantee that these policies will continue to exist in their current form, or at all. For example, the California Self Generation Incentive Program (SGIP) is a program administered by the California Public Utilities Commission (CPUC) which provides incentives to investor-owned utility customers that install eligible distributed energy resources. The SGIP will expire on January 1, 2021. In November 2015, the Energy Division staff of the CPUC proposed to modify the SGIP in a manner that may exclude our Energy Servers from the program. A final decision by CPUC has not yet been made. We cannot predict the results of this proceeding and it is possible that CPUC will determine that technologies like ours should either receive a lower incentive or no longer qualify for the program. Such state programs may face increased opposition on the U.S. federal, state and local levels in the future. Changes in federal or state programs could reduce demand for our Energy Servers, impair sales financing and adversely impact our business results.

We rely on tax equity financing arrangements to realize the benefits provided by investment tax credits and accelerated tax depreciation.

If we continue to utilize our Bloom Electrons program, our PPA financing program, we expect that any PPA entities we create will receive capital from tax equity investors. Tax equity investors are generally entitled to substantially all of the project’s tax benefits, such as those provided by the ITC and Modified Accelerated Cost

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Recovery System (MACRS) depreciation, until these investors achieve their respective agreed rates of return. The number of and available capital from potential tax equity investors is limited, and we compete with other energy companies eligible for these tax benefits to access such investors. Concerns regarding our limited operating history and lack of profitability have made it difficult to attract investors in the past. Our ability to obtain additional financing in the future depends on the continued confidence of banks and other financing sources in our business model and the market for our Energy Servers. In addition, conditions in financial and credit markets generally may result in the contraction of available tax equity financing. If we are unable to enter into tax equity financing agreements with attractive pricing terms or at all, we may not be able to attract the capital needed to fund our Bloom Electrons program or use the tax benefits provided by the ITC and MACRS depreciation, which could make it more difficult for customers to finance the purchase of our Energy Servers and therefore harm our business, financial condition and results of operations.

We derive a substantial portion of our revenue and backlog from a limited number of customers, and the loss of, or a significant reduction in orders from, a large customer could have a material adverse effect on our operating results and other key metrics.

In any particular period, a substantial amount of our total revenue could come from a relatively small number of customers. As an example, for the year ended December 31, 2014, approximately 91% of our revenue came from our top 20 customers, with one customer accounting for approximately 27% of our total revenue. In 2015, our top 20 customers accounted for approximately 85% of our total revenue and two customers, that were not in our top 20 customers for 2014, accounted for approximately 22% of our total revenue. Since we recognize the product revenue for customer-financed purchases at the time that the Energy Server is accepted, rather than recognizing the product revenue ratably over the life of the contract, a customer that self-finances a purchase could have an outsize effect on revenue in the period in which that customer’s Energy Server is accepted.

In addition, two customers accounted for approximately two-thirds of our backlog as of December 31, 2015. The loss of any large customer order, or delays in installations of new Energy Servers with any large customer, could materially and adversely affect our business results.

Our products involve a lengthy sales and installation cycle, and if we fail to close sales on a regular and timely basis it could harm our business.

Our sales cycle is typically 12 to 18 months, but can vary considerably. In order to make a sale, we must typically provide a significant level of education to prospective customers regarding the use and benefits of our product and its technology. The period between initial discussions with a potential customer and the sale of even a single product typically depends on a number of factors, including the potential customer’s budget and decision as to the type of financing it chooses to use, as well as the arrangement of such financing. Prospective customers often undertake a significant evaluation process, which may further extend the sales cycle. Once a customer makes a formal decision to purchase our product, the fulfillment of the sales order by us requires a substantial amount of time. Currently, we believe the time between the entry into a sales contract with a customer and the installation of our Energy Servers can range from nine to twelve months or more. This lengthy sales and installation cycle is subject to a number of significant risks over which we have little or no control. Because of both the long sales and installation cycles, we may expend significant resources without having certainty of generating a sale.

These lengthy sales and installation cycles increase the risk that our customers fail to satisfy their payment obligations or cancel orders before the completion of the transaction or delay the planned date for installation. Generally, a customer can cancel an order prior to installation, although they will generally be charged for any installation and site preparations costs incurred prior to cancellation. Cancellation rates can be between 10% and 20% in any given period, due to such factors as an inability to install an Energy Server at the customer’s chosen location because of permitting or other regulatory issues or other reasons unique to each customer. Our operating expenses are based on anticipated sales levels, and many of our expenses are fixed. If we are unsuccessful in

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closing sales after expending significant resources or if we experience delays or cancellations, our business could be materially and adversely affected. Since we do not recognize revenue on the sales of our products until installation and acceptance, a small fluctuation in the timing of the completion of our sales transactions could cause operating results to vary materially from period to period.

Our business is subject to risks associated with construction, cost overruns and delays, including those related to obtaining government permits, and other contingencies that may arise in the course of completing installations.

Because we do not recognize revenue on the sales of our Energy Servers until installation and acceptance, our financial results are dependent, to a large extent, on the timeliness of the installation of our Energy Servers. Furthermore, in some cases, the installation of our Energy Servers may be on a fixed price basis, which subjects us to the risk of cost overruns or other unforeseen expenses in the installation process.

The construction, installation and operation of our Energy Servers at a particular site is generally subject to oversight and regulation in accordance with national, state and local laws and ordinances relating to building codes, safety, utility interconnection and metering, environmental protection and related matters, and typically requires various local and other governmental approvals and permits, including environmental approvals and permits, that vary by jurisdiction. In some cases, these approvals and permits require periodic renewal. It is difficult and costly to track the requirements of every individual authority having jurisdiction over our installations, to design our Energy Servers to comply with these varying standards, and to obtain all applicable approvals and permits. We cannot predict whether or when all permits required for a given project will be granted or whether the conditions associated with the permits will be achievable. The denial of a permit or utility connection essential to a project or the imposition of impractical conditions would impair our ability to develop the project. In addition, we cannot predict whether the permitting process will be lengthened due to complexities and appeals. Delay in the review and permitting process for a project can impair or delay our and our customers’ abilities to develop that project or increase the cost so substantially that the project is no longer attractive to us or our customers. Furthermore, unforeseen delays in the review and permitting process could delay the timing of the installation of our Energy Servers and could therefore adversely affect the timing of the recognition of revenue related to the installation, which could harm our operating results in a particular period.

In addition, the completion of many of our installations is dependent upon the availability of and timely connection to the natural gas grid and the local electric grid. In some jurisdictions, the local municipality has denied our request for connection. Any delays in our ability to connect with utilities, delays in the performance of installation-related services or poor performance of installation-related services by our general contractors or sub-contractors will have a material adverse effect on our results and could cause operating results to vary materially from period to period.

Furthermore, we rely on third party general contractors to install Energy Servers at our customers’ sites. We currently work with a limited number of general contractors, which has impacted and may continue to impact our ability to make installations as planned. Our work with contractors or their sub-contractors may have the effect of us being required to comply with additional rules (including rules unique to our customers), working conditions, site remediation and other union requirements, which can add costs and complexity to an installation project. The timeliness, thoroughness and quality of the installation-related services performed by our general contractors and their sub-contractors in the past have not always met our expectations or standards and in the future may not meet our expectations and standards.

The failure of our suppliers to continue to deliver necessary raw materials or other components of our Energy Servers in a timely manner could prevent us from delivering our products within required time frames, and could cause installation delays, cancellations, penalty payments and damage to our reputation.

We rely on a limited number of third-party suppliers for certain raw materials and components for our Energy Servers. We also conduct, either directly or indirectly through our extended supply chain, certain raw

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material operations in order to help ensure our access to such raw materials. If we fail to develop or maintain our relationships with our suppliers, or if there is otherwise a shortage or lack of availability of any required raw materials or components, we may be unable to manufacture our Energy Servers or our Energy Servers may be available only at a higher cost or after a long delay. Such delays could prevent us from delivering our Energy Servers to our customers within required timeframes and cause order cancellations. We have had to create our own supply chain for some of the components and materials utilized in our fuel cells. We have made significant expenditures in the past to develop our supply chain. In many cases we entered into contractual relationships with suppliers to jointly develop the components we needed. These activities were time and capital intensive. Accordingly, the number of suppliers we have for certain components and materials is limited and in some cases sole sourced. Some of our suppliers use proprietary processes to manufacture components. We may be unable to obtain comparable components from alternative suppliers without considerable delay, expense or at all, as replacing these suppliers could require us either to make significant investments to bring the capability in house or to invest in a new supplier partner. Some of our suppliers are smaller, private companies, heavily dependent on us as a customer. If our suppliers face difficulties obtaining the credit or capital necessary to expand their operations when needed, they could be unable to supply necessary raw materials and components needed to support our planned sales operations, which would negatively impact our sales volumes and cash flows.

Moreover, we may experience unanticipated disruptions to operations or other difficulties with our supply chain or internalized supply processes due to exchange rate fluctuations, volatility in regional markets from where materials are obtained, particularly China and Taiwan, changes in the general macroeconomic outlook, political instability, expropriation or nationalization of property, civil strife, strikes, insurrections, acts of terrorism, acts of war or natural disasters. The failure by us to obtain raw materials or components in a timely manner, or to obtain raw materials or components that meet our quantity and cost requirements, could impair our ability to manufacture our Energy Servers or increase their costs. If we cannot obtain substitute materials or components on a timely basis or on acceptable terms, we could be prevented from delivering our Energy Servers to our customers within required timeframes, which could result in sales and installation delays, cancellations, penalty payments, or damage to our reputation, any of which could have a material adverse effect on our business and results of operations. In addition, we rely on our suppliers to meet certain quality standards, and the failure of our suppliers to meet or exceed those quality standards could cause delays in the delivery of our products, unanticipated servicing costs and damage to our reputation.

Our financial condition and results of operations and other key metrics are likely to fluctuate on a quarterly basis in future periods, which could cause our results for a particular period to fall below expectations, resulting in a severe decline in the price of our common stock.

Our financial condition and results of operations and other key metrics have fluctuated significantly in the past and may continue to fluctuate in the future due to a variety of factors, many of which are beyond our control. For example, the amount of product revenue, particularly on a non-GAAP basis, we recognize in a given period is materially dependent on the volume of installations of our Energy Servers in that period, and the amount of GAAP product revenue that we recognize in a given period is materially dependent on the type of financing used by the customer. As an example, our total revenue on a GAAP basis was approximately $277.7 million, $248.1 million and $172.9 million in 2013, 2014 and 2015, respectively. This decrease was due in large part to decreases in sales that required revenue recognition up front, as well as sales in 2014 being affected by a lower average sales price as a result of a direct purchase for a large customer site with the installation managed by the customer.

In addition to the other risks described in this “Risk Factors” section, the following factors could also cause our financial condition and results of operations to fluctuate on a quarterly basis:

• the timing of installations, which may depend on many factors such as availability of inventory, product quality or performance issues, or local permitting requirements, utility requirements, environmental, health and safety requirements, weather and customer facility construction schedules;

• size of particular installations and number of sites involved in any particular quarter;

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• the mix in the type of purchase or financing options used by customers in a period;

• delays or cancellations of Energy Server installations;

• fluctuations in our service costs, particularly due to unaccrued costs of servicing and maintaining Energy Servers;

• weaker than anticipated demand for our Energy Servers due to changes in government incentives and policies;

• fluctuations in our research and development expense, including periodic increases associated with the pre-production qualification of additional tools as we expand our production capacity;

• interruptions in our supply chain;

• the length of the sales and installation cycle for a particular customer;

• the timing and level of additional purchases by existing customers; and

• unanticipated expenses or installation delays associated with changes in governmental regulations, permitting requirements by local authorities at particular sites, utility requirements and environmental, health and safety requirements.

Fluctuations in our operating results and cash flow could, among other things, give rise to short-term liquidity issues. In addition, our revenue, key operating metrics and other operating results in future quarters may fall short of the expectations of investors and financial analysts, which could have an adverse effect on the price of our common stock.

We must maintain customer confidence in our liquidity and long-term business prospects in order to grow our business.

Currently, we are the only provider able to fully support and maintain our Energy Servers. If potential customers believe we do not have sufficient capital or liquidity to operate our business over the long term or that we will be unable to maintain their Energy Servers and provide satisfactory support, customers may be less likely to purchase or lease our products, particularly in light of the significant financial commitment required. In addition, financing sources may be unwilling to provide financing on reasonable terms. Similarly, suppliers, financing partners and other third parties may be less likely to invest time and resources in developing business relationships with us if they have concerns about the success of our business.

Accordingly, in order to grow our business, we must maintain confidence among customers, suppliers, financing partners and other parties in our liquidity and long-term business prospects. This may be particularly complicated by factors such as:

• our limited operating history at a large scale;

• our lack of profitability;

• unfamiliarity with or uncertainty about our Energy Servers and the overall perception of the distributed generation market;

• prices for electricity or natural gas in particular markets;

• competition from alternate sources of energy;

• warranty or unanticipated service issues we may experience;

• the environmental consciousness and perceived value of environmental programs to our customers;

• the size of our expansion plans in comparison to our existing capital base and the scope and history of operations;

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• the availability and amount of tax incentives, credits, subsidies or other programs; and

• the other factors set forth in this section.

Several of these factors are largely outside our control, and any negative perceptions about our liquidity or long-term business prospects, even if unfounded, would likely harm our business.

A material decrease in the retail price of utility-generated electricity or an increase in the price of natural gas would affect demand for our Energy Servers.

We believe that a customer’s decision to purchase our Energy Servers is significantly influenced by the price, and price predictability of electricity generated by our Energy Servers in comparison to the retail price and future price outlook of electricity from the local utility grid and other renewable energy sources. In certain states and countries, the current cost of grid electricity, even together with available subsidies, does not render our product economically attractive. Furthermore, if the retail prices of grid electricity do not increase over time at the rate that we or our customers expect, it could reduce demand for our Energy Servers and harm our business. Several factors could lead to a reduction in the price or future price outlook for grid electricity, including the impact of energy conservation initiatives that reduce electricity consumption, construction of additional power generation plants (including nuclear, coal or natural gas) and technological developments by others in the electric power industry which could result in electricity being available at costs lower than those that can be achieved from our Energy Servers.

Furthermore a very significant increase in the price of natural gas or curtailment of availability could make our Energy Servers less economically attractive to potential customers and reduce demand.

We currently face and will continue to face significant competition.

We compete for customers, financing partners and incentive dollars with other electric power providers. Many providers of grid electricity, such as traditional utilities, have longer operating histories, customer incumbency advantages, access to and influence with local and state governments, and more capital resources than we do. Significant developments in alternative technologies, such as energy storage, wind, solar or hydro power generation, or improvements in the efficiency or cost of traditional energy sources including coal, oil, natural gas used in combustion, or nuclear power, may materially and adversely affect our business and prospects in ways we cannot anticipate. We may also face new competitors who are not currently in the market. If we fail to adapt to changing market conditions and to compete successfully with grid electricity or new competitors, we will limit our growth and adversely affect our business results.

Our future success depends in part on our ability to increase our production capacity and we may not be able to do so in a cost-effective manner.

To the extent we are successful in growing our business, we may need to increase our production capacity. Our ability to plan, construct and equip additional manufacturing facilities is subject to significant risks and uncertainties, including the following:

• The expansion or construction of any manufacturing facilities will be subject to the risks inherent in the development and construction of new facilities, including risks of delays and cost overruns as a result of factors outside our control, such as delays in government approvals, burdensome permitting conditions, and delays in the delivery of manufacturing equipment and subsystems that we manufacture or obtain from suppliers.

• It may be difficult to expand our business internationally without additional manufacturing facilities located outside the United States. Adding manufacturing capacity in any international location will subject us to new laws and regulations including those pertaining to labor and employment, environmental and export import. In addition, it brings with it the risk of managing larger scale foreign operations.

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• We may be unable to achieve the production throughput necessary to achieve our target annualized production run rate at our current and future manufacturing facilities.

• Manufacturing equipment may take longer and cost more to engineer and build than expected, and may not operate as required to meet our production plans.

• We may depend on third-party relationships in the development and operation of additional production capacity, which may subject us to the risk that such third parties do not fulfill their obligations to us under our arrangements with them.

If we are unable to expand our manufacturing facilities, we may be unable to further scale our business. If the demand for our Energy Servers or our production output decreases or does not rise as expected, we may not be able to spread a significant amount of our fixed costs over the production volume, thereby increasing our per unit fixed cost, which would have a negative impact on our financial condition and results of operations.

We have in some instances, entered into long-term, firm commitment supply agreements that could result in excess or insufficient inventory and negatively affect our results of operations.

We have entered into long-term, firm commitment supply agreements with certain suppliers. Some of these supply agreements provide for fixed or inflation-adjusted pricing, substantial prepayment obligations, and firm purchase commitments that require us to pay for the supply whether or not we accept delivery. If such agreements require us to purchase more raw materials or components than required to meet our actual customer demand over time, the resulting excess inventory could materially and negatively impact our results of operations. If instead our agreements provide insufficient inventory at the level of quality to meet customer demand, or if our suppliers are unable or unwilling to provide us with the contracted quantities, as we have limited or in some case no alternatives for supply, our results of operations could be materially and negatively impacted. Further, we face significant specific counterparty risk under long-term supply agreements when dealing with suppliers without a long, stable production and financial history. Given the uniqueness of our product, many of our suppliers do not have a long operating history and are private companies that may not have substantial capital resources. In the event any such supplier experiences financial difficulties, it may be difficult or impossible, or may require substantial time and expense, for us to recover any or all of our prepayments. We do not know whether we will be able to maintain long-term supply relationships with our critical suppliers, or secure new long-term supply agreements. Any of the foregoing could materially harm our financial condition and results of operations.

We, and some of our suppliers, obtain certain capital equipment used in our manufacturing process from sole suppliers and if this equipment is damaged or otherwise unavailable, our ability to deliver our Energy Servers on time will suffer.

Some of the capital equipment used to manufacture our products and some of the capital equipment used by our suppliers have been developed and made specifically for us, are not readily available from multiple vendors, and would be difficult to repair or replace if they did not function properly. If any of these suppliers were to experience financial difficulties or go out of business, or if there were any damage to or a breakdown of our manufacturing equipment and we could not obtain replacement equipment in a timely manner, our business would suffer. In addition, a supplier’s failure to supply this equipment in a timely manner, with adequate quality, and on terms acceptable to us, could disrupt our production schedule or increase our costs of production.

If we are not able to continue to reduce our cost structure in the future, our ability to become profitable may be impaired.

We must continue to reduce the manufacturing costs for our Energy Servers to expand our market. While we have been successful in reducing our manufacturing costs to date, the cost of components and raw materials, for example, could increase in the future. Any such increases could slow our growth and cause our financial

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results and operational metrics to suffer. In addition, we may face increases in our other expenses, including increases in wages or other labor costs, as well as installation, marketing, sales or related costs. We may continue to make significant investments to drive growth in the future. Increases in any of these costs could adversely affect our results of operations and financial condition and harm our business and prospects. If we are unable to reduce our cost structure in the future, we may not be able to achieve profitability, which could have a material adverse effect on our business and prospects.

If we fail to manage our growth effectively, our business and operating results may suffer.

Our current growth and future growth plans may make it difficult for us to efficiently operate our business, challenging us to effectively manage our capital expenditures and control our costs while we expand our operations to increase our revenue. If we experience significant growth in orders, without improvements in automation and efficiency, we may need additional manufacturing capacity and we and some of our suppliers may need additional and capital intensive equipment. Any growth in manufacturing must include a scaling of quality control as the increase in production increases the possible impact of manufacturing defects. In addition, any growth in the volume of sales of our Energy Servers may outpace our ability to engage sufficient and experienced personnel to manage the higher number of installations and to engage contractors to complete installations on a timely basis and in accordance with our expectations and standards. Any failure to manage our growth effectively could materially and adversely affect our business, prospects, operating results and financial condition. Our future operating results depend to a large extent on our ability to manage this expansion and growth successfully.

Our failure to protect our intellectual property rights may undermine our competitive position, and litigation to protect our intellectual property rights may be costly.

Although we have taken many protective measures to protect our trade secrets, including agreements, limited access, segregation of knowledge, password protections and other measures, policing unauthorized use of proprietary technology can be difficult and expensive. For example, many of our engineers reside in California and it is not legally permissible to prevent them from working for a competitor, if and when one should exist. Also, litigation may be necessary to enforce our intellectual property rights, protect our trade secrets, or determine the validity and scope of the proprietary rights of others. Such litigation may result in our intellectual property rights being challenged, limited in scope, or declared invalid or unenforceable. We cannot be certain that the outcome of any litigation will be in our favor, and an adverse determination in any such litigation could impair our intellectual property rights and may harm our business, prospects and reputation.

We rely primarily on patent, trade secret and trademark laws, and non-disclosure, confidentiality, and other types of contractual restrictions to establish, maintain, and enforce our intellectual property and proprietary rights. However, our rights under these laws and agreements afford us only limited protection and the actions we take to establish, maintain, and enforce our intellectual property rights may not be adequate. For example, our trade secrets and other confidential information could be disclosed in an unauthorized manner to third parties, our owned or licensed intellectual property rights could be challenged, invalidated, circumvented, infringed, or misappropriated or our intellectual property rights may not be sufficient to provide us with a competitive advantage, any of which could have a material adverse effect on our business, financial condition or operating results. In addition, the laws of some countries do not protect proprietary rights as fully as do the laws of the United States. As a result, we may not be able to protect our proprietary rights adequately abroad.

Our patent applications may not result in issued patents, and our issued patents may not provide adequate protection, which may have a material adverse effect on our ability to prevent others from commercially exploiting products similar to ours.

We cannot be certain that our pending patent applications will result in issued patents or that any of our issued patents will afford protection against a competitor. The status of patents involves complex legal and factual questions, and the breadth of claims allowed is uncertain. As a result, we cannot be certain that the patent

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applications that we file will result in patents being issued, or that our patents and any patents that may be issued to us in the future will afford protection against competitors with similar technology. In addition, patent applications filed in foreign countries are subject to laws, rules, and procedures that differ from those of the United States, and thus we cannot be certain that foreign patent applications related to issued U.S. patents will be issued in other regions. Furthermore, even if these patent applications are accepted and the associated patents issued, some foreign countries provide significantly less effective patent enforcement than in the United States.

In addition, patents issued to us may be infringed upon or designed around by others and others may obtain patents that we need to license or design around, either of which would increase costs and may adversely affect our business, prospects, and operating results.

We may need to defend ourselves against claims that we infringe, have misappropriated or otherwise violate the intellectual property rights of others, which may be time-consuming and would cause us to incur substantial costs.

Companies, organizations, or individuals, including our competitors, may hold or obtain patents, trademarks, or other proprietary rights that would prevent, limit, or interfere with our ability to make, use, develop, or sell our Energy Servers or components, which could make it more difficult for us to operate our business. Companies holding patents or other intellectual property rights allegedly relating to our technologies may make claims or bring suits alleging infringement, misappropriation, or other violations of such rights, or otherwise asserting their rights and seeking licenses or injunctions. Several of the proprietary components used in our Energy Servers have been subjected to infringement challenges in the past. We also generally indemnify our customers against claims that the products we supply infringe, misappropriate, or otherwise violate third party intellectual property rights, and we may therefore be required to defend our customers against such claims. If we or our products are determined to have infringed, misappropriated, or otherwise violated a third party’s intellectual property rights, we may be required to do one or more of the following:

• cease selling or using our products that incorporate the challenged intellectual property;

• pay substantial damages (including treble damages and attorneys’ fees if our infringement is determined to be willful);

• obtain a license from the holder of the intellectual property right, which license may not be available on reasonable terms or at all; or

• redesign our products, which may not be possible or cost-effective.

Any of the foregoing could adversely affect our business, prospects, operating results and financial condition. In addition, any litigation or claims, whether or not valid, could harm our reputation, result in substantial costs, and divert resources and management attention.

We also license technology from third parties, and incorporate components supplied by third parties into our products. We may face claims that our use of such technology or components infringes or otherwise violates the rights of others, which would subject us to the risks described above. We may seek indemnification from our licensors or suppliers under our contracts with them, but our rights to indemnification or our suppliers’ resources may be unavailable or insufficient to cover our costs and losses.

If we are unable to attract and retain key employees and hire qualified management, technical, engineering, and sales personnel, our ability to compete and successfully grow our business could be harmed.

We believe that our success and our ability to reach our strategic objectives are highly dependent on the contributions of our key management, technical, engineering and sales personnel. The loss of the services of any of our key employees could disrupt our operations, delay the development and introduction of our products and services, and negatively impact our business, prospects and operating results. In particular, we are highly

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dependent on the services of Dr. Sridhar, our President and Chief Executive Officer, and other key employees. None of our key employees is bound by an employment agreement for any specific term. We cannot assure you that we will be able to successfully attract and retain senior leadership necessary to grow our business. Furthermore, there is increasing competition for talented individuals in our field, and competition for qualified personnel is especially intense in the San Francisco Bay Area, where our principal offices are located. Our failure to attract and retain our executive officers and other key technology, sales, marketing and support personnel, could adversely impact our business, prospects, financial condition, and operating results. In addition, we do not have “key person” life insurance policies covering any of our officers or other key employees.

We are subject to various environmental laws and regulations that could impose substantial costs upon us and cause delays in building our manufacturing facilities.

We are subject to national, state, and local environmental laws and regulations as well as environmental laws in those foreign jurisdictions in which we operate. Environmental laws and regulations can be complex and may change often. These laws can give rise to liability for administrative oversight costs, cleanup costs, property damage, bodily injury, fines and penalties. Capital and operating expenses needed to comply with environmental laws and regulations can be significant, and violations may result in substantial fines and penalties or third-party damages. In addition, ensuring we are in compliance with applicable environmental laws could require significant time and management resources and could cause delays in our ability to build out, equip and operate our facilities, as well as service our fleet which would adversely impact our business, prospects, financial condition and operating results. In addition, environmental laws and regulations, such as the Comprehensive Environmental Response, Compensation and Liability Act in the United States, impose liability on several grounds for the investigation and cleanup of contaminated soil and ground water, for building contamination and impacts to human health and for damages to natural resources. Contamination at properties formerly owned or operated by us, as well as at properties we will own or operate, and properties to which hazardous substances were sent by us, may result in liability for us under environmental laws and regulations. Many of our customers who purchase our Energy Servers have high sustainability standards and any environmental noncompliance by us could harm our reputation and impact a current or potential customer’s buying decision. The costs of complying with environmental laws and regulations and any claims concerning noncompliance, or liability with respect to contamination in the future could have a material adverse effect on our financial condition or operating results.

Existing regulations and changes to such regulations impacting the electric power industry may create technical, regulatory and economic barriers which could significantly reduce demand for our Energy Servers.

The market for electricity generation products is heavily influenced by U.S. federal, state, local, and foreign government regulations and policies, as well as internal policies and regulations of electric utility providers. These regulations and policies often relate to electricity pricing and technical interconnection of customer-owned electricity generation. These regulations and policies are often modified and could continue to change, and this could result in a significant reduction in demand for our Energy Servers. For example, utility companies commonly charge fees to larger, industrial customers for disconnecting from the electric grid or for having the capacity to use power from the electric grid for back-up purposes. These fees could change, increasing the cost to our customers of using our Energy Servers and making them less economically attractive. In addition, our Delmarva project is subject to laws and regulations relating to electricity generation, transmission and sale, such as Federal Energy Regulatory Commission (FERC) regulation under various federal energy regulatory laws, and requires FERC authorization to make wholesale sales of electric energy, capacity, and ancillary services. Also, several of our PPA entities are subject to regulation under FERC with respect to market-based sales of electricity, which requires us to file notices and make other periodic filings with FERC, which increases our costs, and subjects us to additional regulatory oversight.

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We may become subject to product liability claims, which could harm our financial condition and liquidity if we are not able to successfully defend or insure against such claims.

We may in the future become subject to product liability claims. Our Energy Servers are considered high energy systems because they use flammable fuels and may operate at 480 volts. Although our Energy Servers are certified to meet ANSI, IEEE, ASME and NFPA design and safety standards, if not properly handled in accordance with our servicing and handling standards and protocols, there could be a system failure and resulting liability. These claims could require us to incur significant costs to defend. Furthermore, any successful product liability claim could require us to pay a substantial monetary award. Moreover, a product liability claim could generate substantial negative publicity about our company and our Energy Servers, which could harm our brand, business, prospects, and operating results. While we maintain product liability insurance, our insurance may not be sufficient to cover all potential product liability claims. Any lawsuit seeking significant monetary damages either in excess of our coverage, or outside of our coverage, may have a material adverse effect on our business and financial condition.

Current or future litigation or administrative proceedings could have a material adverse effect on our business, financial condition and results of operations.

We have been and continue to be involved in legal proceedings, administrative proceedings, claims and other litigation that arise in the ordinary course of business. Purchases of our products have also been the subject of litigation. For example, even though we were not named as a party and the litigation was ultimately settled, in 2012 plaintiffs FuelCell Energy Inc. and John A. Nichols filed suit against Delaware Governor Jack Markell and the Delaware Public Service Commission in the U.S. District Court for Delaware challenging certain aspects of our arrangement with Delmarva Power and the state of Delaware. In addition, since our Energy Server is a new type of product in a nascent market, we have in the past needed and may in the future need to seek the amendment of existing regulations or, in some cases, the creation of new regulations, in order to operate our business in certain jurisdictions. Such regulatory processes may require public hearings concerning our business, which could expose us to subsequent litigation.

Unfavorable outcomes or developments relating to proceedings to which we are a party or transactions involving our products, such as judgments for monetary damages, injunctions, or denial or revocation of permits, could have a material adverse effect on our business, financial condition, and results of operations. In addition, settlement of claims could adversely affect our financial condition and results of operations.

A breach or failure of our networks or computer or data management systems could damage our operations and our reputation.

Our business is dependent on the security and efficacy of our networks and computer and data management systems. For example, all of our Energy Servers are connected to and monitored by our centralized remote monitoring service. Although we take protective measures and endeavor to modify them as circumstances warrant, the security of our infrastructure, including the network that connects our Energy Servers to our remote monitoring service, may be vulnerable to breaches, unauthorized access, misuse, computer viruses or other malicious code and cyber-attacks that could have a material adverse impact on our business and our Energy Servers in the field. A breach or failure of our networks or computer or data management systems due to intentional actions such as cyber-attacks, negligence or other reasons, could seriously disrupt our operations and affect our ability to assess our Energy Server performance in the field and could result in the loss or misuse of our data or sensitive information, disruption to our business, legal or regulatory breaches and potentially legal liability. These events could result in significant costs or reputational consequences.

Our headquarters and other facilities are located in an active earthquake zone, and an earthquake or other types of natural disasters or resource shortages could disrupt and harm our results of operations.

We conduct a majority of our operations in the San Francisco Bay area in an active earthquake zone. The occurrence of a natural disaster, such as an earthquake, drought, flood, localized extended outages of critical

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utilities or transportation systems, or any critical resource shortages, could cause a significant interruption in our business, damage or destroy our facilities, manufacturing equipment, or inventory, and cause us to incur significant costs, any of which could harm our business, financial condition, and results of operations. The insurance we maintain against fires, earthquakes and other natural disasters may not be adequate to cover our losses in any particular case.

Expanding operations internationally could expose us to risks.

Although we currently primarily operate in the United States, we will seek to expand our business internationally. We currently have operations in Japan, China and India. Managing any international expansion will require additional resources and controls, including additional manufacturing and assembly facilities. Any expansion internationally could subject our business to risks associated with international operations, including:

• conformity with applicable business customs, including translation into foreign languages and associated expenses;

• lack of availability of government incentives and subsidies;

• challenges in arranging, and availability of, financing for our customers;

• potential changes to our established business model;

• cost of alternative power sources, which could be meaningfully lower outside the United States;

• availability and cost of natural gas;

• difficulties in staffing and managing foreign operations in an environment of diverse culture, laws and customers, and the increased travel, infrastructure and legal and compliance costs associated with international operations;

• installation challenges which we have not encountered before, which may require the development of a unique model for each country;

• compliance with multiple, potentially conflicting and changing governmental laws, regulations and permitting processes, including environmental, banking, employment, tax, privacy and data protection laws and regulations, such as the EU Data Privacy Directive;

• compliance with U.S. and foreign anti-bribery laws, including the Foreign Corrupt Practices Act and the U.K. Anti-Bribery Act;

• difficulties in collecting payments in foreign currencies and associated foreign currency exposure;

• restrictions on repatriation of earnings;

• compliance with potentially conflicting and changing laws of taxing jurisdictions where we conduct business and applicable U.S. tax laws as they relate to international operations, the complexity and adverse consequences of such tax laws and potentially adverse tax consequences due to changes in such tax laws; and

• regional economic and political conditions.

As a result of these risks, any potential future international expansion efforts that we may undertake may not be successful.

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If we discover a material weakness in our internal control over financial reporting or otherwise fail to maintain effective internal control over financial reporting, our ability to report our financial results on a timely and accurate basis and the market price of our common stock may be adversely affected.

The Sarbanes-Oxley Act of 2002 (Sarbanes-Oxley Act) requires, among other things, that we evaluate the effectiveness of our internal control over financial reporting and disclosure controls and procedures. Although we did not discover any material weaknesses in internal control over financial reporting at December 31, 2015, subsequent testing by us or our independent registered public accounting firm, which has not performed an audit of our internal control over financial reporting, may reveal deficiencies in our internal control over financial reporting that are deemed to be material weaknesses. To comply with Section 404A, we may incur substantial cost, expend significant management time on compliance-related issues and hire additional accounting, financial and internal audit staff with appropriate public company experience and technical accounting knowledge. Moreover, if we are not able to comply with the requirements of Section 404A in a timely manner or if we or our independent registered public accounting firm identify deficiencies in our internal control over financial reporting that are deemed to be material weaknesses, we could be subject to sanctions or investigations by the Securities and Exchange Commission (SEC) or other regulatory authorities, which would require additional financial and management resources. Any failure to maintain effective disclosure controls and procedures or internal control over financial reporting could have a material adverse effect on our business and operating results, and cause a decline in the price of our common stock.

Our ability to use our deferred tax assets to offset future taxable income may be subject to certain limitations that could subject our business to higher tax liability.

We may be limited in the portion of net operating loss carryforwards that we can use in the future to offset taxable income for U.S. federal and state income tax purposes. At December 31, 2015, we had federal and state net operating loss carryforwards (NOLs) of $1.4 billion and $1.1 billion, respectively, which will expire, if unused, beginning in 2022 and 2016, respectively. A lack of future taxable income would adversely affect our ability to utilize these NOLs. In addition, under Section 382 of the Internal Revenue Code of 1986, as amended (the Code), a corporation that undergoes an “ownership change” is subject to limitations on its ability to utilize its NOLs to offset future taxable income. Changes in our stock ownership, including this offering or future offerings, as well as other changes that may be outside of our control, could result in ownership changes under Section 382 of the Code, which could cause our NOLs to be subject to these limitations. Our NOLs may also be impaired under similar provisions of state law. In addition, as of December 31, 2015, we had approximately $13.9 million of federal research credit, $4.8 million of federal investment tax credit, and $12.2 million of state research credit carryforwards. Our deferred tax assets may expire unutilized or underutilized, which could prevent us from offsetting future taxable income.

Our substantial indebtedness may limit our financial and operating activities and may adversely affect our ability to incur additional debt to fund future needs.

As of December 31, 2015, we and our subsidiaries had approximately $640.0 million of total consolidated indebtedness, of which an aggregate of $309.6 million represented indebtedness which is recourse to us. Of this amount, $208.6 million represented debt under our 8% Notes which will convert automatically into common stock immediately prior to completion of this offering, $11.0 million represented operating debt, $330.4 million represented debt of our PPA entities and $160.0 million represented debt under our 5% Notes which could remain outstanding following this offering. Our substantial indebtedness and any new indebtedness could:

• require us to dedicate a substantial portion of cash flow from operations to the payment of principal, and interest on, indebtedness, thereby reducing the funds available for other purposes, such as working capital and capital expenditures;

• make it more difficult for us to satisfy and comply with our obligations with respect to our indebtedness;

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• subject us to increased sensitivity to interest rate increases;

• make us more vulnerable to economic downturns, adverse industry conditions or catastrophic external events;

• limit our ability to withstand competitive pressures;

• reduce our flexibility in planning for or responding to changing business, industry and economic conditions; and/or

• place us at a competitive disadvantage to competitors that have relatively less debt than we have.

In addition, our substantial level of indebtedness could limit our ability to obtain required additional financing on acceptable terms or at all for working capital, capital expenditures and general corporate purposes. Any of these risks could impact our ability to fund our operations or limit our ability to expand our business, which could have a material adverse effect on our business, financial condition, liquidity and results of operations. Our liquidity needs could vary significantly and may be affected by general economic conditions, industry trends, performance and many other factors not within our control.

We may not be able to generate sufficient cash to meet our debt service obligations.

Our ability to generate sufficient cash to make scheduled payments on our debt obligations will depend on our future financial performance, which will be affected by a range of economic, competitive and business factors, many of which are outside of our control.

In addition, we conduct certain of our operations through, and receive equity allocations from, our PPA entities, which contribute to our cash flow. These PPA entities are separate and distinct legal entities, do not guarantee our debt obligations and will have no obligation, contingent or otherwise, to pay amounts due under our debt obligations or to make any funds available to pay those amounts, whether by dividend, distribution, loan or other payments. In many cases, distributions by such PPA entities to us are precluded under these arrangements if there is an event of default or if certain financial covenants are not met, even if there is not otherwise an event of default, and certain arrangements prohibit the payment of distributions in excess of specified thresholds. Furthermore, under the terms of some of our PPA entity financing arrangements, substantially all of the cash flows generated from our PPA entities in excess of debt service obligations are distributed to tax equity investors until the investors achieve a targeted internal rate of return, which is generally after a period of five or more years (the flip date), when we start receiving a larger portion of these cash flows. Future borrowings by our PPA entities may contain restrictions or prohibitions on the payment of dividends to us. The ability of our PPA entities to make such payments to us may be subject to applicable laws, including surplus, solvency and other limits imposed on the ability of companies to pay dividends.

If we do not generate sufficient cash to satisfy our debt obligations, including interest payments, the payment of principal at maturity or other payments that may be required from time to time under the terms of our debt instruments, we may have to undertake alternative financing plans, such as refinancing or restructuring our debt, selling assets, reducing or delaying capital investments or seeking to raise additional capital. We cannot provide assurance that any refinancing would be possible, that any assets could be sold, or, if sold, of the timing of the sales and the amount of proceeds realized from those sales, that additional financing could be obtained on acceptable terms, if at all, or that additional financing would be permitted under the terms of our various debt instruments then in effect. Furthermore, the ability to refinance indebtedness would depend upon the condition of the finance and credit markets at the time, which have in the past been, and may in the future be, volatile. Our inability to generate sufficient cash to satisfy our debt obligations, or to refinance our obligations on commercially reasonable terms or on a timely basis, would have an adverse effect on our business, results of operations and financial condition.

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Under some circumstances, we may be required to or elect to make additional payments to our PPA entities or the PPA entity investors.

Our PPA entities are structured in a manner such that other than the amount of any equity investment we have made, we generally do not have any further liability for the debts or other obligations of the PPA entities. In some cases, we were required to guarantee certain obligations of the PPA entities, such as the performance and operating efficiency warranties of the Energy Servers, certain representations and warranties made to the other investors in the PPA entity and the performance of certain covenants. As a result, we could be obligated to make payments to these PPA entities or the other investors in the event of a breach of these representations, warranties or covenants.

In addition, many of our PPA entities that operate Energy Servers for end customers have significant restrictions on their ability to incur increased operating costs, or could face events of default under debt or other investment agreements if end customers are not able to meet their payment obligations under power purchase agreements. If the operating entities experience unexpected, increased costs, such as insurance costs, interest expense, construction overruns or taxes, or if end customers are unable to continue to purchase power under their power purchase agreements, there could be insufficient cash generated from the project to meet the debt service obligations of the PPA entity or to meet any targeted rates of return of investors. If this were to occur, this could constitute an event of default, and entitle the lender to foreclose on the collateral securing the debt or could trigger other payment obligations of the PPA entity. To avoid this, we could choose to make additional payments to avoid an event of default, which could adversely affect our business or financial condition.

Restrictions imposed by the agreements governing certain of our and our PPA entities’ outstanding indebtedness contain various covenants that limit our ability to take certain actions.

The agreements governing certain of our outstanding indebtedness contain, and any of our other future debt agreements may contain, covenants imposing operating and financial restrictions on our business that limit our flexibility including, among other things, to:

• borrow money;

• pay dividends or make other distributions in certain instances;

• incur liens;

• make certain asset dispositions;

• make certain loans or investments;

• issue or sell share capital of our subsidiaries;

• issue certain guarantees;

• enter into transactions with affiliates; and

• merge, consolidate, or sell, lease or transfer all or substantially all of our assets.

Certain of our and our PPA entities’ debt agreements require the maintenance of specified ratios or the satisfaction of specified financial tests. Our and our PPA entities’ ability to meet these financial ratios and tests may be affected by events beyond our control and, as a result, we cannot assure you that we will be able to meet these ratios and tests. Upon the occurrence of certain events such as a change in control of our company, certain asset sales or mergers or similar transactions, the liquidation or dissolution of our company or the cessation of our stock exchange listing, holders of our 5% Notes have the right to cause us to repurchase for cash any or all of such outstanding notes at a repurchase price in cash equal to 100% of the principal amount thereof, plus accrued and unpaid interest thereon. We cannot provide assurance that we would have sufficient liquidity to repurchase the Notes. Furthermore, our financing and debt agreements, such as our 5% Notes and our 8% Notes, contain events of default. If an event of default were to occur, the trustee or the lenders could, among other things,

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terminate their commitments and declare outstanding amounts due and payable, and our cash may become restricted. We cannot provide assurance that we would have sufficient liquidity to repay or refinance our indebtedness if such amounts were accelerated upon an event of default. Borrowings under other debt instruments that contain cross-acceleration or cross-default provisions may, as a result, be accelerated and become due and payable. We may be unable to pay these debts in such circumstances. If we were unable to repay those amounts, lenders could proceed against the collateral granted to them to secure repayment of those amounts. We cannot assure you that the collateral will be sufficient to repay in full those amounts. We cannot assure you that the operating and financial restrictions and covenants in these agreements will not adversely affect our ability to finance our future operations or capital needs, or engage in other business activities that may be in our interest, or react to adverse market developments.

If our PPA entities default on their obligations under non-recourse financing agreements, we may decide to make payments to prevent such PPA entities’ creditors from foreclosing on the relevant collateral as such a foreclosure would result in our losing our ownership interest in the PPA entity or in some or all of its assets, or a material part of our assets, as the case may be. To satisfy these obligations, we may be required to use amounts distributed by our other PPA entities as well as other sources of available cash, reducing the cash available to develop our projects and to our operations. The loss of a material part of our assets, or our ownership interest in one or more of our PPA entities or some or all of their assets, or any use of our resources to support our obligations or the obligations of our PPA entities, could have a material adverse effect on our business, financial condition and results of operations.

We are an “emerging growth company” and we cannot be certain if the reduced disclosure requirements applicable to emerging growth companies will make our common stock less attractive to investors.

We are an “emerging growth company,” as defined in the JOBS Act, and we intend to take advantage of certain exemptions from various reporting requirements that are applicable to other public companies that are not “emerging growth companies,” including not being required to comply with the auditor attestation requirements of Section 404 of the Sarbanes-Oxley Act, reduced disclosure obligations regarding executive compensation in our periodic reports and proxy statements and exemptions from the requirements of holding a nonbinding advisory vote on executive compensation and stockholder approval of any golden parachute payments not previously approved. We may take advantage of these exemptions for so long as we are an “emerging growth company,” which could be as long as five years following the completion of this offering. We cannot predict if investors will find our common stock less attractive because we will rely on these exemptions. If some investors find our common stock less attractive as a result, there may be a less active trading market for our common stock and our stock price may be more volatile.

Risks Related to this Offering

There has been no prior public market for our common stock, the stock price of our common stock may be volatile or may decline regardless of our operating performance, and you may not be able to resell your shares at or above the initial public offering price.

There has been no public market for our common stock prior to this offering. The initial public offering price for our common stock will be determined through negotiations among the underwriters, us, and the selling stockholders and may vary from the market price of our common stock following this offering. The market prices of the securities of newly public companies such as us have historically been highly volatile. An active or liquid market in our common stock may not develop following this offering or, if it does develop, may not be sustainable. The market price of our common stock may fluctuate significantly in response to numerous factors, many of which are beyond our control, including:

• overall performance of the equity markets;

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• actual or anticipated fluctuations in our revenue and other operating results;

• changes in the financial projections we may provide to the public or our failure to meet these projections;

• failure of securities analysts to initiate or maintain coverage of us, changes in financial estimates by any securities analysts who follow our company, or our failure to meet these estimates or the expectations of investors;

• recruitment or departure of key personnel;

• the economy as a whole and market conditions in our industry;

• new laws, regulations or subsidies or credits or new interpretations of them applicable to our business;

• negative publicity related to problems in our manufacturing or the real or perceived quality of our products;

• rumors and market speculation involving us or other companies in our industry;

• announcements by us or our competitors of significant technical innovations, acquisitions, strategic partnerships, or capital commitments;

• lawsuits threatened or filed against us;

• other events or factors, including those resulting from war, incidents of terrorism, or responses to these events;

• the expiration of contractual lock-up or market standoff agreements; and

• sales or anticipated sales of shares of our common stock by us or our stockholders.

In addition, the stock markets have experienced extreme price and volume fluctuations that have affected and continue to affect the market prices of equity securities of many companies. Stock prices of many companies have fluctuated in a manner unrelated or disproportionate to the operating performance of those companies. In the past, stockholders have instituted securities class action litigation following periods of market volatility. If we were to become involved in securities litigation, it could subject us to substantial costs, divert resources and the attention of management from our business, and adversely affect our business.

Sales of substantial amounts of our common stock in the public markets, or the perception that they might occur, could cause the market price of our common stock to decline.

Sales of a substantial number of shares of our common stock into the public market, particularly sales by our directors, executive officers, and principal stockholders, or the perception that these sales might occur, could cause the market price of our common stock to decline.

Substantially all of our securities outstanding prior to this offering, other than the shares offered by our selling stockholders, which will be freely tradable following this offering, are currently restricted from resale as a result of lock-up and market standoff agreements. See the section titled “Shares Eligible for Future Sale” for additional information. These securities will become available to be sold 181 days after the date of this prospectus. J.P. Morgan Securities LLC may, in its discretion, permit our security holders to sell shares prior to the expiration of the restrictive provisions contained in the lock-up agreements. Shares held by directors, executive officers, and other affiliates will also be subject to volume limitations under Rule 144 under the Securities Act and various vesting agreements.

In addition, as of December 31, 2015, we had options and RSUs outstanding that, if fully exercised or settled, would result in the issuance of 13,216,942 shares of common stock. All of the shares of common stock issuable upon the exercise of stock options or settlement of RSUs, and the shares reserved for future issuance

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under our equity incentive plans, will be registered for public resale under the Securities Act. Accordingly, these shares will be able to be freely sold in the public market upon issuance subject to the lock-up agreements described above, existing lock-up or market standoff agreements and applicable vesting requirements.

Immediately following this offering, the holders of            shares of our common stock have rights, subject to some conditions, to require us to file registration statements for the public resale of the common stock issuable upon conversion of such shares or to include such shares in registration statements that we may file for us or other stockholders.

If securities or industry analysts do not publish research, or publish inaccurate or unfavorable research, about our business, the market price of our common stock and trading volume could decline.

The market price for our common stock will depend in part on the research and reports that securities or industry analysts publish about us or our business. Securities and industry analysts do not currently, and may never, publish research on our company. If few securities analysts commence coverage of us, or if industry analysts cease coverage of us, the trading price for our common stock would be negatively affected. If one or more of the analysts who cover us downgrade our common stock or publish inaccurate or unfavorable research about our business, our common stock price would likely decline. If one or more of these analysts cease coverage of us or fail to publish reports on us regularly, demand for our common stock could decrease, which might cause our common stock price and trading volume to decline.

Because the initial public offering price of our common stock will be substantially higher than the pro forma as adjusted net tangible book value per share of our outstanding common stock following this offering, new investors will experience immediate and substantial dilution.

The initial public offering price will be substantially higher than the pro forma as adjusted net tangible book value per share of our common stock immediately following this offering based on the total value of our tangible assets less our total liabilities. Therefore, if you purchase shares of our common stock in this offering, based on the midpoint of the price range set forth on the cover page of this prospectus, and the issuance of            shares of common stock in this offering, you will experience immediate dilution of $        per share, the difference between the price per share you pay for our common stock and its pro forma as adjusted net tangible book value per share as of December 31, 2015. See the section titled “Dilution” for additional information.

We will have broad discretion in the use of the net proceeds to us from this offering and may not use them effectively.

We will have broad discretion in the application of the net proceeds to us from this offering, including for any of the purposes described in the section titled “Use of Proceeds,” and you will not have the opportunity as part of your investment decision to assess whether the net proceeds are being used appropriately. Because of the number and variability of factors that will determine our use of the net proceeds from this offering, their ultimate use may vary substantially from their currently intended use. The failure by our management to apply these funds effectively could harm our business. Pending their use, we may invest the net proceeds from this offering in short-term, investment-grade interest-bearing securities such as money market accounts, certificates of deposit, commercial paper, and guaranteed obligations of the U.S. government that may not generate a high yield to our stockholders. These investments may not yield a favorable return to our investors.

We do not intend to pay dividends for the foreseeable future.

We have never declared or paid any cash dividends on our common stock and do not intend to pay any cash dividends in the foreseeable future. We anticipate that we will retain all of our future earnings for use in the development of our business and for general corporate purposes. Any determination to pay dividends in the

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future will be at the discretion of our board of directors. Accordingly, investors must rely on sales of their common stock after price appreciation, which may never occur, as the only way to realize any future gains on their investments.

Insiders will continue to have substantial control over us after this offering, which could limit your ability to influence the outcome of key transactions, including a change of control.

Our directors, executive officers and each of our stockholders who own greater than 5% of our outstanding common stock and their affiliates, in the aggregate, will beneficially own a total of approximately     % of the outstanding shares of our common stock after this offering. As a result, these stockholders, if acting together, would be able to influence or control matters requiring approval by our stockholders, including the election of directors and the approval of mergers, acquisitions or other extraordinary transactions. They may have interests that differ from yours and may vote in a way with which you disagree and that may be adverse to your interests. This concentration of ownership may have the effect of delaying, preventing or deterring a change of control of our company, could deprive our stockholders of an opportunity to receive a premium for their common stock as part of a sale of our company and might affect the market price of our common stock.

Provisions in our charter documents and under Delaware law could make an acquisition of our company more difficult, limit attempts by our stockholders to replace or remove our current management, limit our stockholders’ ability to obtain a favorable judicial forum for disputes with us or our directors, officers, or employees, and limit the market price of our common stock.

Provisions in our restated certificate of incorporation and amended and restated bylaws that will be in effect immediately following the completion of this offering may have the effect of delaying or preventing a change of control or changes in our management. Our restated certificate of incorporation and amended and restated bylaws include provisions that:

• provide that our board of directors will be classified into three classes of directors with staggered three year terms;

• permit the board of directors to establish the number of directors and fill any vacancies and newly created directorships;

• require super-majority voting to amend some provisions in our restated certificate of incorporation and amended and restated bylaws;

• authorize the issuance of “blank check” preferred stock that our board of directors could use to implement a stockholder rights plan;

• provide that only the chairman of our board of directors, our chief executive officer, or a majority of our board of directors will be authorized to call a special meeting of stockholders;

• prohibit stockholder action by written consent, which requires all stockholder actions to be taken at a meeting of our stockholders;

• provide that the board of directors is expressly authorized to make, alter, or repeal our bylaws; and

• establish advance notice requirements for nominations for election to our board of directors or for proposing matters that can be acted upon by stockholders at annual stockholder meetings.

In addition, our restated certificate of incorporation will provide that the Court of Chancery of the State of Delaware will be the exclusive forum for: any derivative action or proceeding brought on our behalf; any action asserting a breach of fiduciary duty; any action asserting a claim against us arising pursuant to the Delaware General Corporation Law, our restated certificate of incorporation, or our amended and restated bylaws; or any action asserting a claim against us that is governed by the internal affairs doctrine. This choice of forum provision may limit a stockholder’s ability to bring a claim in a judicial forum that it finds favorable for disputes

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with us or any of our directors, officers, or other employees, which may discourage lawsuits with respect to such claims. Alternatively, if a court were to find the choice of forum provision contained in our restated certificate of incorporation to be inapplicable or unenforceable in an action, we may incur additional costs associated with resolving such action in other jurisdictions, which could harm our business, operating results, and financial condition.

Moreover, Section 203 of the Delaware General Corporation Law may discourage, delay, or prevent a change in control of our company. Section 203 imposes certain restrictions on mergers, business combinations, and other transactions between us and holders of 15% or more of our common stock. See the section titled “Description of Capital Stock” for additional information.

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SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS

This prospectus contains forward-looking statements within the meaning of the federal securities laws. All statements contained in this prospectus other than statements of historical fact, including statements regarding our future operating results and financial position, our business strategy and plans, and our objectives for future operations, are forward-looking statements. The words “believe,” “may,” “will,” “estimate,” “continue,” “anticipate,” “predict,” “intend,” “could,” “would,” “should,” “expect,” “plan” and similar expressions are intended to identify forward-looking statements.

You should not rely upon forward-looking statements as predictions of future events. We have based the forward-looking statements contained in this prospectus primarily on our current expectations and projections about future events and trends that we believe may affect our business, financial condition, operating results, and prospects. The outcome of the events described in these forward-looking statements is subject to risks, uncertainties and other factors, including those discussed in the section titled “Risk Factors” and elsewhere in this prospectus. Moreover, we operate in a very competitive and rapidly changing environment. New risks and uncertainties emerge from time to time and it is not possible for us to predict all risks and uncertainties or the extent to which any factor, or combination of factors, may cause actual results to differ materially from those contained in any forward-looking statements we may make in this prospectus. We cannot assure you that the results, events, and circumstances reflected in the forward-looking statements will be achieved or occur, and actual results, events, or circumstances could differ materially and adversely from those described or anticipated in the forward-looking statements.

The forward-looking statements made in this prospectus relate only to events as of the date on which the statements are made. We undertake no obligation to update any forward-looking statements made in this prospectus to reflect events or circumstances after the date of this prospectus or to reflect new information or the occurrence of unanticipated events, except as required by law. We may not actually achieve the plans, intentions, or expectations disclosed in our forward-looking statements and you should not place undue reliance on our forward-looking statements.

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INDUSTRY AND MARKET DATA

This prospectus contains statistical data, estimates and forecasts that are based on independent industry publications or reports or other publicly available information, as well as other information based on our internal sources. This information involves a number of assumptions and limitations, is subject to risks and uncertainties, and is subject to change based on various factors, including those discussed in the section titled “Risk Factors” and elsewhere in this prospectus. These and other factors could cause results to differ materially from those expressed in the estimates made by the independent parties and by us.

The source of certain statistical data, estimates and forecasts contained in this prospectus are the following independent industry publications or reports:

• United Nations Development Programme (UNDP) and Action 4 Energy, “Climate and disaster resilience, Sustainable energy,” March 2016.

• MarketLine, “MarketLine Industry Profile: Global Electricity Retailing,” February 2015.

• United States Department of Energy, “Quadrennial Energy Review: Energy Transmission, Storage, and Distribution Infrastructure,” April 2015.

• American Society of Civil Engineers, “2013 Report Card for America’s Infrastructure,” 2013.

• Edison Electric Institute, “Company Reports, SNL Financial,” September 2015.

• President’s Council of Economic Advisers and Office of Electricity Delivery and Energy Reliability, U.S. Department of Energy, “Economic Benefits of Increasing Electric Grid Resilience to Weather Outages,” August 2013.

• The White House Office of the Press Secretary, “Fact Sheet: Administration Announces New Agenda to Modernize Energy Infrastructure: Releases Quadrennial Energy Review,” April 2015.

• Technavio, “Global Microgrid Market 2015-2019,” 2015.

• Technavio, “Global Data Center Power Market 2015-2019,” 2015.

• Eaton, “Blackout Tracker: United States Annual Report 2015,” 2016.

• United States Energy Information Administration, “State Electricity Profiles,” July 2015.

• United States Energy Information Administration, “Electric Power Monthly,” February 2016.

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USE OF PROCEEDS

We estimate that the net proceeds from the sale of shares of our common stock that we are selling in this offering will be approximately $            million, based on an assumed initial public offering price of $            per share, which is the midpoint of the price range set forth on the cover page of this prospectus, and after deducting estimated underwriting discounts and commissions and estimated offering expenses payable by us. If the underwriters’ option to purchase additional shares from us is exercised in full, we estimate that our net proceeds would be approximately $            million, after deducting estimated underwriting discounts and commissions and estimated offering expenses payable by us. We will not receive any proceeds from the sale of shares of our common stock by the selling stockholders.

Each $1.00 increase or decrease in the assumed initial public offering price of $            per share would increase or decrease the net proceeds that we receive from this offering by approximately $            million, assuming that the number of shares of common stock offered by us, as set forth on the cover page of this prospectus, remains the same and after deducting the estimated underwriting discounts and commissions.

We intend to use the net proceeds that we receive from this offering for general corporate purposes, including research and development and sales and marketing activities, general and administrative matters and capital expenditures. We may also use a portion of the net proceeds to invest in or acquire complementary businesses, products, services, technologies or other assets.

We currently have no specific plans for the use of the net proceeds that we receive from this offering. Accordingly, we will have broad discretion in using these proceeds. Pending their use as described above, we plan to invest the net proceeds in short-term, interest-bearing obligations, investment-grade instruments, certificates of deposit, or direct or guaranteed obligations of the U.S. government.

DIVIDEND POLICY

We have never declared or paid cash dividends on our capital stock. We currently intend to retain all available funds and any future earnings for use in the operation of our business and do not anticipate paying any cash dividends in the foreseeable future. Any decision to declare and pay dividends in the future will be made at the discretion of our board of directors and will depend on, among other things, our results of operations, cash requirements, financial condition, contractual restrictions including compliance with covenants under our credit facilities and other factors that our board of directors may deem relevant.

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CAPITALIZATION

The following table sets forth our cash and cash equivalents and our capitalization as of December 31, 2015 on:

• an actual basis;

• a pro forma basis to give effect to (1) the automatic conversion of all outstanding shares of our preferred stock into 107,425,783 shares of common stock immediately prior to the closing of this offering, (2) the effectiveness of our amended and restated certificate of incorporation immediately prior to the completion of this offering, (3) the automatic conversion of all outstanding 8% Notes to Series G convertible preferred stock at a per share price of $25.76, and the conversion of such Series G convertible preferred stock into 8,097,795 shares of common stock immediately prior to the completion of this offering and (4) the issuance and exercise of warrants to purchase 469,333 shares of our common stock at an exercise price of $0.01 per share to certain purchasers of our 5% Notes, as described in “Description of Capital Stock—5.0% Convertible Senior Secured PIK Notes due 2020,” which warrants will automatically be deemed exercised pursuant to their terms immediately prior to the completion of this offering; and

• a pro forma as adjusted basis to give effect to (1) the pro forma adjustments set forth above, (2) the issuance of 413,261 shares of common stock that we expect to issue upon the exercise of warrants that would expire if not exercised prior to the completion of this offering and (3) the sale and issuance of             shares of common stock by us in this offering at an assumed initial public offering price of $            per share, which is the midpoint of the price range on the cover of this prospectus, and after deducting estimated underwriting discounts and commissions and estimated offering expenses payable by us.

	As of December 31, 2015
	Actual			Pro Forma		Pro Forma, As Adjusted (1)
	(in thousands, except share and per share data)
Cash and cash equivalents	$	135,030		$	135,035	$
Indebtedness:
5% Convertible Senior Secured PIK Notes	$	89,948		$	89,948	$
8% Subordinated Convertible Secured Promissory Notes		208,599			—
Other indebtedness—recourse		6,530			6,530
Other indebtedness—non-recourse		300,779			300,779
Warrant liabilities		17,027			17,027
Convertible redeemable preferred stock, $0.0001 par value: 120,692,417 shares authorized and 107,425,783 issued and outstanding, actual; no shares authorized, issued and outstanding, pro forma and pro forma as adjusted		1,459,506			—
Stockholders’ deficit:
Preferred stock, $0.0001 par value: no shares authorized, issued and outstanding, actual;              shares authorized, no shares issued and outstanding pro forma and pro forma as adjusted
Common stock, $0.0001 par value: 170,000,000 shares authorized, 14,907,904 shares issued and outstanding, actual; 170,000,000 shares authorized, 130,900,815 shares issued and outstanding, pro forma;              shares authorized,              shares issued and outstanding, pro forma as adjusted		1			13
Additional paid-in capital		102,449			1,770,547
Accumulated other comprehensive loss		(844	)		(844)
Accumulated deficit		(1,788,390	)		(1,788,390)
Total stockholders’ deficit		(1,686,784	)		(18,674)
Total capitalization	$	395,605		$	395,610	$

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⁽¹⁾  Each $1.00 increase or decrease in the assumed initial public offering price of $        per share, the midpoint of the price range on the cover of this prospectus, would increase or decrease, respectively, the amount of cash, additional paid-in capital, total stockholders’ deficit and total capitalization by approximately $            million, assuming the number of shares we offer, as stated on the cover of this prospectus, remains the same and after deducting the estimated underwriting discounts and commissions.

The preceding table is based on the number of shares of our common stock outstanding as of December 31, 2015, and excludes:

• 12,660,639 shares of our common stock issuable upon exercise of outstanding stock options as of December 31, 2015 with a weighted average exercise price of $14.38 per share under our 2002 Equity Incentive Plan and 2012 Equity Incentive Plan;

• 556,303 shares of our common stock issuable upon settlement of RSUs outstanding as of December 31, 2015 under our 2012 Equity Incentive Plan;

• 50,000 shares of our common stock issuable upon the exercise of outstanding warrants to purchase common stock as of December 31, 2015, with an exercise price of $25.76 per share;

• 1,554,445 shares of our common stock issuable upon the exercise of outstanding warrants to purchase Series F convertible preferred stock and Series G convertible preferred stock as of December 31, 2015, with a weighted average exercise price of $20.47 per share, which, if not exercised prior to the completion of this offering, shall convert in accordance with their terms into warrants to purchase common stock;

• up to 400,000 shares of our common stock issuable to one of our customers on the occurrence of certain installation milestones;

• 200,000 shares of common stock issuable 180 days from the date of this prospectus. These shares will be issued as part of a dispute settlement with a securities placement agent, as described in “Description of Capital Stock—Securities Acquisition Agreement”;

•             shares of our common stock issuable upon the conversion of our outstanding 5% Notes as of December 31, 2015, based on an assumed initial public offering price of $        per share, which is the midpoint of the price range set forth on the cover page of this prospectus, which notes will be convertible at the option of the holders thereof following the completion of this offering; and

•             shares of common stock reserved for future issuance under our equity-based compensation plans, consisting of 1,419,954 shares of common stock reserved for issuance under our 2012 Equity Incentive Plan as of December 31, 2015,             shares of common stock reserved for issuance under our 2016 Equity Incentive Plan and             shares of common stock reserved for issuance under our 2016 Employee Stock Purchase Plan, and excluding shares that become available under the 2016 Equity Incentive Plan and 2016 Employee Stock Purchase Plan pursuant to provisions of these plans that automatically increase the share reserves each year, as more fully described in “Executive Compensation—Employee Benefit Plans.”

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DILUTION

If you invest in our common stock, your interest will be diluted to the extent of the difference between the public offering price per share of our common stock and the pro forma as adjusted net tangible book value per share of our common stock after this offering. Our pro forma net tangible book value as of December 31, 2015 was $        million, or $        per share of common stock. Pro forma net tangible book value per share represents total tangible assets less total liabilities, divided by the number of shares of common stock outstanding as of December 31, 2015, after giving effect to (i) the automatic conversion of all outstanding shares of our preferred stock into 107,425,783 shares of common stock immediately prior to the closing of this offering, (ii) the effectiveness of our amended and restated certificate of incorporation immediately prior to the completion of this offering, (iii) the automatic conversion of all outstanding 8% Notes to Series G convertible preferred stock at a per share price of $25.76, and the conversion of such Series G convertible preferred stock into 8,097,795 shares of common stock immediately prior to the completion of this offering, (iv) the issuance of 413,261 shares of common stock that we expect to issue upon the exercise of warrants that would expire if not exercised prior to the completion of this offering and (v) the issuance and exercise of warrants to purchase 469,333 shares of our common stock at an exercise price of $0.01 per share to certain purchasers of our 5% Notes, as described in “Description of Capital Stock—5.0% Convertible Senior Secured PIK Notes due 2020,” which warrants will automatically be deemed exercised pursuant to their terms immediately prior to the completion of this offering. Our pro forma as adjusted net tangible book value per share gives further effect to our sale of our common stock in this offering at the assumed initial public offering price of $        per share, the midpoint of the price range on the cover of this prospectus, after deducting the estimated underwriting discounts and commissions and our estimated offering expenses. Our pro forma as adjusted net tangible book value as of December 31, 2015 would have been $        million, or $        per share. This represents an immediate increase in net tangible book value of $        per share to our existing stockholders and an immediate dilution of $        per share to new investors purchasing shares of common stock in this offering. The following table illustrates this dilution on a per share basis:

Assumed initial public offering price per share		$
Pro forma net tangible book value per share as of December 31, 2015	$
Increase in pro forma net tangible book value per share attributable to new investors purchasing shares in this offering
Pro forma as adjusted net tangible book value per share after giving effect to this offering
Dilution per share to new investors in this offering		$

Each $1.00 increase or decrease in the assumed initial public offering price of $         per share, which is the midpoint of the price range set forth on the cover page of this prospectus, would increase or decrease our pro forma as adjusted net tangible book value per share after this offering by $                    , and would increase or decrease dilution per share to investors in this offering by $                    , assuming that the number of shares offered by us, as set forth on the cover page of this prospectus, remains the same, and after deducting estimated underwriting discounts and commissions and estimated offering expenses payable by us.

The following table illustrates, on a pro forma as adjusted basis described above, as of December 31, 2015 the differences between the number of shares of common stock purchased from us, the total consideration paid, and the average price per share paid by existing stockholders and new investors purchasing shares of our common stock in this offering based on an assumed initial public offering price of $        per share, the midpoint of the price range on the cover of this prospectus, and before deducting estimated underwriting discounts and commissions and estimated offering expenses payable by us.

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	Shares Purchased					Total Consideration					Average Price Per Share
	Number		Percent			Amount		Percent
	(dollars in millions, except per share amounts)
Existing Stockholders		131,314,076		100.0	%	$	1,662.2		100.0	%	$	12.66
New Investors
Total				100.0	%	$			100.0	%

Sales of shares of common stock by the selling stockholders in this offering will reduce the number of shares of common stock held by existing stockholders to                     , or approximately         % of the total shares of common stock outstanding after this offering, and will increase the number of shares held by new investors to                     , or approximately         % of the total shares of common stock outstanding after this offering.

If the underwriters exercise their option to purchase additional shares in full, the percentage of shares of common stock held by existing stockholders will decrease to approximately        % of the total number of shares of our common stock outstanding after this offering, and the number of shares held by new investors will be increased to            , or approximately        % of the total number of shares of our common stock outstanding after this offering.

As of December 31, 2015, there were options outstanding to purchase a total of 12,660,639 shares of common stock at a weighted average exercise price of $14.38 per share, RSUs outstanding that may be settled for 556,303 shares of common stock, warrants outstanding to purchase a total of 50,000 shares of common stock at an exercise price of $25.76 per share, and warrants outstanding to purchase a total of 1,554,445 shares of our Series F convertible preferred stock and Series G convertible preferred stock, with a weighted-average exercise price of $20.47 per share. We expect warrants to purchase 413,261 shares of common stock, which would expire if not exercised prior to completion of this offering, will be exercised prior to the completion of this offering. In addition, we will issue 200,000 shares of common stock 180 days from the date of this prospectus, as part of a dispute settlement with a securities placement agent, as described in “Description of Capital Stock—Securities Acquisition Agreement,” and up to 400,000 shares of our common stock to one of our customers on the occurrence of certain installation milestones. To the extent outstanding options or warrants are exercised, or restricted stock units settle, or we issue additional shares of common stock in the future, there will be further dilution to new investors.

The preceding table is based on the number of shares of our common stock outstanding on a pro forma basis as of December 31, 2015, and excludes:

• 12,660,639 shares of our common stock issuable upon exercise of outstanding stock options as of December 31, 2015 with a weighted average exercise price of $14.38 per share under our 2002 Equity Incentive Plan and 2012 Equity Incentive Plan;

• 556,303 shares of our common stock issuable upon settlement of RSUs outstanding as of December 31, 2015 under our 2012 Equity Incentive Plan;

• 50,000 shares of our common stock issuable upon the exercise of outstanding warrants to purchase common stock as of December 31, 2015, with an exercise price of $25.76 per share;

• 1,554,445 shares of our common stock issuable upon the exercise of outstanding warrants to purchase Series F convertible preferred stock and Series G convertible preferred stock as of December 31, 2015, with a weighted average exercise price of $20.47 per share, which, if not exercised prior to the completion of this offering, shall convert in accordance with their terms into warrants to purchase common stock;

• up to 400,000 shares of our common stock issuable to one of our customers on the occurrence of certain installation milestones;

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• 200,000 shares of common stock issuable 180 days from the date of this prospectus. Those shares will be issued as part of a dispute settlement with a securities placement agent, as described in “Description of Capital Stock—Securities Acquisition Agreement”;

•             shares of our common stock issuable upon the conversion of our outstanding 5% Notes as of December 31, 2015, based on an assumed initial public offering price of $        per share, which is the midpoint of the price range set forth on the cover page of this prospectus, which notes will be convertible at the option of the holders thereof following the completion of this offering; and

•             shares of common stock reserved for future issuance under our equity-based compensation plans, consisting of 1,419,954 shares of common stock reserved for issuance under our 2012 Equity Incentive Plan as of December 31, 2015,            shares of common stock reserved for issuance under our 2016 Equity Incentive Plan and            shares of common stock reserved for issuance under our 2016 Employee Stock Purchase Plan, and excluding shares that become available under the 2016 Equity Incentive Plan and 2016 Employee Stock Purchase Plan pursuant to provisions of these plans that automatically increase the share reserves each year, as more fully described in “Executive Compensation—Employee Benefit Plans.”

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LETTER FROM OUR CHIEF FINANCIAL OFFICER

The best way for you to understand Bloom Energy is to think of us as a technology company that sells a product that sits on our customers’ sites to meet their electric power needs, whether it is reliability, resiliency, sustainability, cost savings and/or cost predictability. In addition, our customers are able to purchase service contracts for ongoing operations and maintenance, which creates an attractive services business model opportunity. Similar to the Moore’s law for semiconductor technology companies, our product has consistently improved in performance and efficiency at a rapid pace since we rolled out our first generation product in 2008. Simply put, we are a unique company in the electric power sector and our business model is very different from other energy companies, including solar panel makers or project finance companies.

We sell our products using various models to suit our customers’ needs. The sale typically includes our product—the Bloom Energy Server, installation, and ongoing operations and maintenance service or “service”. We are generally able to offer competitive pricing versus the grid in our target markets. We measure performance in these three parts of our business:

• Product;

• Installation; and

• Service.

The simplest way to think about our business model is we get paid upfront for the sale of product and installation. Separately, we also get paid for services when the warranty period expires at the end of first year, at which time our customers enter into an annual service contract with us. On a portfolio basis, this mix typically is comprised of approximately 85% for the product and approximately 15% for installation. Separately, we expect to generate significant additional maintenance and services fees over the period during which our products are in service with our customers.

On product, our strategy is to continuously drive down the cost to manufacture our systems. However, we are in a unique position where the pricing for our customers from the electricity grid, our primary competitor, has actually been steadily rising. In our current target markets, this dynamic gives us an opportunity to improve profitability as these cost savings generally fall through to the bottom line. Additionally, our lower system costs allow us to expand into new markets. These additional opportunities help us to drive operating leverage.

Our strategy with respect to our installations is pretty simple – we want to break even and continuously drive down our installation cost – why? Because lower installation cost should translate to higher revenue and margin for our product business. Installation costs vary from site to site and are dependent on customization required for a given customer set-up and size of an installation. Our goal is to be margin neutral on installation on a portfolio basis.

Now, let us focus on our strategy pertaining to service. In the early days of Bloom Energy’s commercial shipments, we recognized that we needed a statistically meaningful “field installed base” and real time data from those installations to understand performance of our Energy Servers in real world conditions and use that learning to improve reliability and robustness in our systems. It was also necessary learning to drive innovation and performance improvements in our entire value chain. For this reason, we installed Energy Servers that had a lifespan below break-even, relative to service revenue versus service cost. We made an informed judgment call that this strategy was the best way to be a market pioneer and leader and had utmost confidence in our extremely capable engineering team to extend the product life to achieve positive margins in service. We incorporated the costs of this strategy in our business plans.

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The large losses in service, particularly during the period between 2013 and 2015, were the price we were willing to pay for this strategy. Towards the end of 2015 through the first few months of 2016, we have seen progress in service financial performance driven by two primary events:

• “time to stack replacement” primarily driven by our fuel cell stack lives - in the early years were 12 to 18 months, and today we are seeing initial field data suggesting 4 years on average, and

• the cost to refurbish (which include our fuel cell stacks) is coming down . . . since 2014, we have driven this cost down by approximately 25%.

At today’s costs, we believe we can achieve break even in our service business provided the time between stack replacement across all of our fleet is at four years or better. Longer term, like many companies with a service business, our strategy is to make our service business a profitable part of our overall business, with a predictable recurring annual revenue stream.

A key metric that we monitor is our year-end backlog. We book an order at the time of contract signing and at that time the order is recorded in our backlog. On a quarter-to-quarter basis, booked orders tend to be lumpy. For example, a big box retailer might place an order for hundreds of stores at one time. However, the Energy Server deployments (installations, translating to revenue) might span nine to 12 months from the time the order is booked. It takes us only about two months to manufacture, install and commission the system, which we define as bringing the system to full power. This generally allows us well over six months to diligence, design, permit and construct the infrastructure necessary to deploy our systems. As we build sufficient scale and backlog, we would expect that our revenue will become smoother and more predictable, despite lumpy orders booked. An order is generally recognized as revenue at the time of commissioning the system, which we refer to as “acceptance.” The product sales price and installation price is set for each system at the time of the contracted order. Since we know the system configuration for each site, we can determine with a high level of confidence our product costs, and thus product margins associated with that order.

Internally, we use 100 kilowatts of rated power from an Energy Server as our base unit of measure. We call this a “system.” Our installation size varies from a few hundred kilowatts to several megawatts at a site. The use of a 100 kilowatt system concept helps to convey the volume of product we manufacture and accept in a very simple way. For example, if in a particular quarter we plan to install our Energy Servers in several sites and the cumulative rated power of all these installations is 20 megawatts, we would refer to this as 200 systems (200 systems times 100 kilowatts equals 20,000 kilowatts or 20 megawatts).

Now, let me discuss revenue recognition and the non-GAAP financial measures we use. At Bloom, we offer several purchase options supported by a variety of financing models to sell our Energy Servers. This is consistent with our philosophy of customizing our energy solution to meet our customer needs in all aspects of our business. In general, we sell our Energy Servers to customers through a direct sale, through a lease, or through one of our Bloom Electrons financing programs (where the customer pays based on the energy delivered). For some customers we sell our Energy Servers through a combination of these financing models. Under GAAP accounting, our product revenue recognition varies from either being recognized ratably over the contract term for some financing models versus all up front at the time of acceptance for others. Because of this variability, we believe a useful way to understand the performance of our business is through our non-GAAP financial measures where we are consistent in the way we recognize revenue. We recognize the product and installation portion of total non-GAAP revenue upfront at the time of acceptance of the Energy Server. We monitor, operate and maintain the Energy Servers for our customers and collect a fee for this service. We call this “service revenue.” We generally recognize service revenue ratably over each contract year.

Generally, under any of the financing models we sell under, we receive a certain amount of the sales price in advance payments to help us offset working capital requirements. This may include upfront deposits and/or advanced payments prior to manufacturing and site construction. This improves our working capital position and our overall cash cycle days.

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In summary, we think of ourselves as a product company that is a technology innovator focused on providing energy solutions in developed economies, where customers want a reliable, resilient, sustainable energy solution with predictable economics. In the future, our goal is to offer this same energy solution in emerging economies where power infrastructure today is inadequate or non-existent.

Randy Furr

Chief Financial Officer

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SELECTED CONSOLIDATED FINANCIAL DATA

The selected consolidated statements of operations data for the years ended December 31, 2014 and 2015 and the consolidated balance sheet data as of December 31, 2014 and 2015 are derived from our audited consolidated financial statements included elsewhere in this prospectus. You should read the following selected consolidated financial data below in conjunction with “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and the consolidated financial statements, related notes and other financial information included elsewhere in this prospectus. Our historical results are not necessarily indicative of the results to be expected in the future. The selected consolidated financial data in this section are not intended to replace the consolidated financial statements and are qualified in their entirety by the consolidated financial statements and related notes included elsewhere in this prospectus.

Please see the section titled “Management’s Discussion and Analysis of Financial Condition and Results of Operations—Key Operating Metrics” for information regarding how we define our system acceptances and total megawatts deployed, and the section titled “Management’s Discussion and Analysis of Financial Condition and Results of Operations—Non-GAAP Measures” for information regarding how we define non-GAAP total revenue, non-GAAP gross profit (loss) and non-GAAP loss from operations and the limitations of those metrics.

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	Years Ended December 31,
	2014			2015
	(in thousands, except operating metrics and per share data)
Consolidated statements of operations data:
Revenue
Product	$	174,450		$	122,441
Service		26,437			36,944
Electricity		47,253			55,311
Subtotal		248,140			214,696
PPA I decommissioning		—			(41,807	)
Total revenue		248,140			172,889
Cost of revenue
Product		231,800			187,731
Service		105,657			135,470
Electricity		24,305			31,372
Total cost of revenue		361,762			354,573
Gross profit (loss)		(113,622	)		(181,684	)
Operating expenses
Research and development		53,001			43,933
Sales and marketing		16,434			19,543
General and administrative		50,573			58,976
Total operating expenses		120,008			122,452
Loss from operations		(233,630	)		(304,136	)
Interest expense		(21,606	)		(40,633	)
Other expense, net		(4,350	)		(2,891	)
Gain (loss) on revaluation of warrant liabilities		(1,825	)		2,686
Loss before income taxes		(261,411	)		(344,974	)
Income tax provision		574			707
Net loss		(261,985	)		(345,681	)
Net loss attributable to noncontrolling interest and redeemable noncontrolling interests		(44,369	)		(4,678	)
Net loss attributable to common stockholders	$	(217,616	)	$	(341,003	)
Net loss per share attributable to common stockholders, basic and diluted	$	(15.45	)	$	(23.34	)
Weighted average shares used to compute net loss per share attributable to common stockholders, basic and diluted		14,088			14,611
Pro forma net loss per share attributable to common stockholders, basic and diluted				$	(2.61	)
Pro forma weighted average shares used to compute pro forma net loss per share attributable to common stockholders, basic and diluted					130,554
Key operating metrics:
Acceptances during the period (in 100 kilowatt systems)		351			349
Total megawatts deployed as of the year ended		152			187

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	As of December 31,
	2014			2015
	(in thousands)
Consolidated balance sheet data:
Cash and cash equivalents	$	107,028		$	135,030
Working capital		212,728			169,028
Total assets		926,908			944,501
Non-recourse PPA entity debt		284,943			330,403
Recourse debt		183,935			309,579
Total liabilities		759,622			1,038,652
Convertible redeemable preferred stock		1,456,931			1,459,506
Stockholders’ deficit		(1,367,380	)		(1,686,784	)
Non-GAAP financial measures
	Years Ended December 31,
	2014			2015
	(in thousands)
Non-GAAP total revenue
Product	$	282,305		$	279,060
Installation		27,216			48,297
Service		33,812			56,697
Total Non-GAAP revenue	$	343,333		$	384,054
	Years Ended December 31,
	2014			2015
	(in thousands)
Non-GAAP gross profit (loss)
Product	$	14,053		$	22,793
Installation		(5,277	)		(8,787	)
Service		(71,460	)		(78,268	)
Total Non-GAAP gross profit (loss)	$	(62,684	)	$	(64,262	)
	Years Ended December 31,
	2014			2015
	(in thousands)
Non-GAAP loss from operations	$	(159,278	)	$	(159,303	)

GAAP to Non-GAAP Revenue Reconciliation Methodology

We believe certain non-GAAP financial measures provide additional useful information to measure the performance of our business. For GAAP reporting, revenue recognition is impacted by the financing model a customer uses to procure Bloom Energy Servers. Generally, GAAP requires revenue to be recognized over the contract period of the PPAs and other certain lease arrangements. From an operational standpoint, procurement of materials, production, and installation of systems is not dependent on the financing model. Among other items, our non-GAAP financial measures remove the revenue timing elements required by GAAP accounting to reflect the operational pace of the business.

In addition to the revenue timing noted above, we manage our business by measuring three non-GAAP components of non-GAAP revenue: product, installation and service. GAAP revenue accounting tracks three revenue components, as well: product, electricity and service. These revenue components do not align due to the

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revenue recognition accounting required for the PPAs under our Bloom Electrons program, which results in electricity revenue that is recognized ratably over the contract term.

In order to derive total non-GAAP revenue from GAAP revenue, we make two primary adjustments. The principal adjustment is related to timing of revenue recognition. To calculate non-GAAP revenue, we adjust GAAP revenue to recognize revenue related to product and installation at the time of system acceptance. This in effect recognizes non-GAAP product and installation revenue up front that would otherwise have been recognized ratably over the life of a PPA contract as electricity revenue under GAAP. A second adjustment is to match product and service revenue to the amounts specified in customer contracts as opposed to the fair value allocation required by GAAP, which could have the effect of increasing the amount of non-GAAP product revenue recognized on acceptance of an Energy Server and decreasing the amount of non-GAAP service revenue recognized in later years upon renewal of the operations and maintenance services agreements.

We also adjust the components of GAAP revenue by first reclassifying electricity revenue to either service or product revenue and then reclassifying certain product revenue to installation revenue. Non-GAAP product and installation revenue are recognized at acceptance and non-GAAP service revenue is recognized over the service period.

Please see the section titled “Management Discussion and Analysis of Financial Condition and Results of Operations—Non-GAAP Measures” for information regarding how we define non-GAAP total revenue, non-GAAP gross profit (loss) and non-GAAP loss from operations and the limitations of those measures.

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Reconciliation of Non-GAAP Measures

GAAP to Non-GAAP Revenue Reconciliation

	GAAP Revenue			Adjustment for Ratable Revenue at Acceptance(1)			Adjustment to Contracted Amounts(2)			Interbusiness Allocation(3)						Total Revenue Adjustment			Non-GAAP Revenue
Year Ended December 31, 2015										Installation Revenue			Electricity Revenue
	(in thousands)
Revenue
Product	$	122,441		$	169,263		$	11,802		$	(48,297	)	$	23,851		$	156,619		$	279,060
Installation		—			—			—			48,297			—			48,297			48,297
Service		36,944			—			(756	)		—			20,509			19,753			56,697
Electricity		55,311			(10,951	)		—			—			(44,360	)		(55,311	)		—
PPA I decommissioning(4)		(41,807	)		—			—			—			—			41,807			—
Total	$	172,889		$	158,312		$	11,046		$	—		$	—		$	211,165		$	384,054
Year Ended December 31, 2014
Revenue
Product	$	174,450		$	77,435		$	25,510		$	(27,216	)	$	32,126		$	107,855		$	282,305
Installation		—			—			—			27,216			—			27,216			27,216
Service		26,437			—			(126	)		—			7,501			7,375			33,812
Electricity		47,253			(7,626	)		—			—			(39,627	)		(47,253	)		—
Total	$	248,140		$	69,809		$	25,384		$	—		$	—		$	95,193		$	343,333

⁽¹⁾ This adjustment is to recognize revenue at the time of acceptance. We first add to GAAP revenue the portion of product revenue that would otherwise be recognized ratably over the life of the contract (10 to 21 years) for sales made through our Bloom Electrons Program and certain lease financing arrangements. We then deduct amounts we previously recognized as non-GAAP product revenue from electricity revenue.

⁽²⁾ This adjustment is made to record as non-GAAP product and non-GAAP service revenue, the amounts specified in our contracts with the individual customer. Under GAAP, for certain contracts where product revenue is recognized up-front at acceptance, an allocation is made in accordance with ASC 605-25 from product revenue to service revenue, which is recognized ratably over the life of the service contract. Compared to the customer contract, this GAAP allocation reduces the amount of up-front product revenue and increases the amount of ratable service revenue that would be recognized in future periods. The adjustment in this column removes the impact of this allocation, aligning the non-GAAP product revenue and non-GAAP service revenue with the contracted amounts.

⁽³⁾ This adjustment to the components of GAAP revenue reclassifies certain product revenue to installation revenue that is bundled in product revenue for GAAP and reclassifies electricity revenue to either service or product revenue.

⁽⁴⁾ This adjustment removes the impact of the PPA I decommissioning program (see Note 14, PPA I Decommissioning, to our consolidated financial statements included in this prospectus).

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GAAP to Non-GAAP Gross Profit (Loss) Reconciliation

	GAAP Gross Profit			Total Revenue Adjustment(1)			Adjustments for Ratable Costs at Acceptance(2)			Stock-Based Comp and Other One Time Item		Interbusiness Allocation(3)						Non-GAAP Gross Profit
Year Ended December 31, 2015												Installation Costs			Electricity Costs
	(in thousands)
Gross profit
Product	$	(65,290	)	$	156,619		$	(127,190	)	$	11,173	$	57,573		$	(10,092	)	$	22,793
Installation		—			48,297			—			489		(57,573	)		—			(8,787	)
Service		(98,526	)		19,753			—			505		—			—			(78,268	)
Electricity		23,939			(55,311	)		21,280			—		—			10,092			—
PPA I decommissioning(4)		(41,807	)		41,807			—			—		—			—			—
Total gross profit (loss)	$	(181,684	)	$	211,165		$	(105,910	)	$	12,167	$	—		$	—		$	(64,262	)
Year Ended December 31, 2014
Gross profit
Product	$	(57,350	)	$	107,855		$	(61,923	)	$	4,387	$	32,854		$	(11,770	)	$	14,053
Installation		—			27,216			—			361		(32,854	)		—			(5,277	)
Service		(79,220	)		7,375			—			385		—			—			(71,460	)
Electricity		22,948			(47,253	)		12,535			—		—			11,770			—
Total gross profit (loss)	$	(113,622	)	$	95,193		$	(49,388	)	$	5,133	$	—		$	—		$	(62,684	)

⁽¹⁾  See “—GAAP to Non-GAAP Revenue Reconciliation” above.

⁽²⁾  This adjustment matches non-GAAP cost of product revenue with non-GAAP product revenue recognized at time of acceptance. We then adjust electricity cost of revenue to match the electricity revenue adjustment.

⁽³⁾  This adjustment matches the installation and electricity cost of revenue with the installation and electricity interbusiness revenue reclassification.

⁽⁴⁾  This adjustment removes the impact of the PPA I decommissioning program (see Note 14, PPA I Decommissioning, to our consolidated financial statements included in this prospectus).

GAAP to Non-GAAP Loss from Operations Reconciliation

	Years Ended December 31,
	2014			2015
	(in thousands)
GAAP loss from operations	$	(233,630	)	$	(304,136	)
Total Revenue Adjustment		95,193			211,165
Total Cost of Revenue Adjustment		(44,255	)		(93,743	)
Stock-based compensation		13,112			15,374
PPA entity set up costs and other one-time legal expenses		10,302			12,037
Non-GAAP loss from operations	$	(159,278	)	$	(159,303	)

For a further description of these non-GAAP measures and their limitations, see “Management’s Discussion and Analysis of Financial Condition and Results of Operations—Non-GAAP Measures.”

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MANAGEMENT’S DISCUSSION AND ANALYSIS OF

FINANCIAL CONDITION AND RESULTS OF OPERATIONS

The following discussion and analysis of our financial condition and results of operations should be read in conjunction with our consolidated financial statements and the related notes to those statements included elsewhere in this prospectus. In addition to historical financial information, the following discussion and analysis contains forward-looking statements that involve risks, uncertainties and assumptions. Our actual results and timing of selected events may differ materially from those anticipated in these forward-looking statements as a result of many factors, including those discussed under “Risk Factors” and elsewhere in this prospectus.

Overview

We provide an advanced distributed electric power generation solution, based on our proprietary solid oxide fuel cell technology, that provides our customers with a reliable, resilient, sustainable and more cost effective clean alternative to the electric grid. Our solution, the Bloom Energy Server, is an on-site stationary power generation platform, capable of delivering uninterrupted, 24x7 base load power that is fault tolerant, resilient and clean. We currently primarily target commercial and industrial customers. Our most significant deployment milestones to date include:

• Our first commercial deployment: 400 kilowatt deployment for a major internet company in August 2008;

• Our first deployment under a PPA financing: Completion of the first deployment in October 2010 that was financed pursuant to a PPA;

• The largest commercial customer deployment of fuel cell technology in the United States: 10 megawatt deployment at a major consumer technology company’s data center completed in December 2012;

• The first large scale deployment of fuel cell technology to provide mission critical, primary power to a data center, without traditional backup power from diesel generators, batteries and UPS systems: 9.8 megawatt deployment in Utah in two phases completed in September 2013 and March 2015;

• The largest utility scale deployment of fuel cell technology in the United States: 30 megawatt deployment in Delaware for Delmarva Power completed in November 2013;

• The first international deployments: First site deployed in Japan to provide uninterruptible power completed in June 2013; first site expected to be deployed in India in the second quarter of 2016; and

• Major cumulative deployment milestones: Cumulative deployment of 50 megawatts by September 2012, cumulative deployment of 100 megawatts by September 2013 and 187 megawatts as of December 31, 2015.

We market and sell our Energy Servers primarily through our direct sales organization in the United States. Recognizing that deploying our solutions requires a material financial commitment from our customers, we typically seek to engage customers that have the financial capability to either purchase our Energy Servers directly or arrange creditworthy counterparties to financing agreements. Our typical target customer has been either an investment-grade entity or a customer with investment-grade attributes such as size, assets and revenue, liquidity, geographically diverse operations and general financial stability. Given that our customers are typically large institutions with multi-level decision making processes, we generally experience a lengthy sales process.

We serve a diverse set of customers across a wide range of industry verticals, including big box retail and grocery stores, high-tech campuses, telecommunication towers and large-scale data centers. Our Energy Servers are deployed at customer sites across 10 states in the United States, as well as in India and Japan. Our customer base included 24 of the Fortune 100 companies as of December 31, 2015. We believe that we are currently

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capturing only a small percentage of our largest customers’ total energy spend, which gives us an opportunity for growth within those customers, particularly as the price of grid power increases in the areas where our existing customers have additional sites. Since the timing of revenue we recognize depends, in part, on the option chosen by the customer to finance the purchase of the Energy Server, customers that may have accounted for a significant amount of product revenue in one period may not necessarily account for similar amounts of product revenue in future periods.

On a GAAP basis, total revenue from eBay, Inc. represented 14% of our total revenue in 2015. In 2014, total revenue from Apple, Inc. represented 27% of our total revenue. To date, substantially all of our revenue has been derived from customers based in the United States. However, we have started to increase our sales efforts outside of the United States, with initial customer installations in India and Japan.

Although the size of each system deployment can vary substantially and usually exceeds 250 kilowatts, we measure and track our system deployments and customer acceptances in 100 kilowatt equivalents. As of December 31, 2015, we had deployed 1,872 of such systems, which is equivalent to 187 total megawatts.

We manufacture our Energy Servers at our facilities in California and Delaware. Due to the intensive manufacturing process necessary to build our systems, a significant portion of our manufacturing costs are fixed. We obtain our materials and components through a variety of third parties. Components and materials, direct labor and overhead, such as facility and equipment expenses, comprise the substantial majority of the costs of our Energy Servers. As we have commercialized and introduced successive generations of our Energy Servers, we have been focused on reducing their production costs. Our product costs per system manufactured have generally declined since delivering our first commercial product. These cost declines are the result of continuous improvements and increased automation in our manufacturing processes as well as our ability to reduce the costs of our materials and components, allowing us to gain greater economies of scale with our growth.

We believe we have made significant improvements in our efficiency and the quality of our products. Our success depends in part on our ability to increase our products’ useful life, which would significantly reduce our cost of services to maintain the Energy Servers over time.

Purchase Options

Our customers may choose to purchase our Energy Servers outright or may choose to lease them through one of our financing partners as a traditional lease or a sale-leaseback sublease arrangement, which we refer to as managed services. Our customers may also purchase electricity through Bloom Electrons, our PPA financing program. Depending on the financing arrangement, either our customers or the financing provider may utilize investment tax credits and other government incentives.

Purchase and Lease Programs

Initially, we only offered our Energy Servers on a purchase basis, in which the customer purchases the product directly from us. Payment for the purchase of our product is generally broken down into multiple installments, which may include payments upon signing of the purchase agreement, within 180 days prior to shipment, upon shipment of the Energy Server, and upon acceptance of the Energy Server. Acceptance typically occurs when the Energy Server is installed and running at full power for 24 hours, unless as otherwise agreed with the customer. A one-year service warranty is provided with the initial sale. After the expiration of the initial one-year warranty, customers have the option to enter into annual operations and maintenance services agreements with us at a price determined at the time of purchase of the Energy Server, which may be renewed each year for up to 20 years.

Over time we have also developed various lease programs with our financing partners to provide alternative financing options. These programs take the form of either (1) a traditional lease agreed directly with the financing partner or (2) managed services.

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Under the traditional lease arrangement, the customer enters into a lease directly with a financing partner, which pays us for the Energy Servers. We recognize product revenue upon acceptance. After the initial one-year warranty period, our customers have almost always exercised the option to enter into operations and maintenance services agreements with us, under which we receive annual service payments from the customer. The price for the annual operations and maintenance services is set at the time we enter into the lease.

Under managed services, we initially enter into a master lease with the financing partner, which holds title to the Energy Server. Once a customer is identified, we enter into an additional operating lease with the financing partner and a service agreement with the customer. We begin to recognize revenue from the sale of the equipment to the financing partner once the Energy Server has been accepted by the customer. Under the master lease, we then make operating lease payments to the financing partner. Under the service agreement with the customer, there are two payment components: a monthly equipment fee calculated based on the size of the installation, which covers the amount of our lease payment, and a service payment based on the monthly output of electric power produced by the Energy Server.

The timing of the product-related cash flows to Bloom is generally consistent across all the above financing options, whether direct purchase arrangements, leases or managed services.

We provide certain warranties and performance guarantees regarding the Energy Servers’ efficiency and output under all of our financing arrangements. Under direct purchase and traditional lease options, the warranty and guarantee is included in the price of the Energy Server for the first year. The warranty and guarantee may be renewed annually at the customer’s option as an operations and maintenance services agreement at predetermined prices for a period of up to 20 years. Historically, our customers have almost always exercised their option to renew under these operations and maintenance services agreements. Under the managed services program, the operations and maintenance performance guarantees are included in the price of the Energy Server for a fixed period of 10 years, which may be extended at the option of the parties for up to an additional 10 years with all payments made annually.

Our capacity to offer our Energy Servers through any of the financing arrangements above depends in large part on the ability of the parties involved in providing payment for the Energy Servers to monetize either the related investment tax credits, accelerated tax depreciation and other incentives, and/or the future power purchase obligations of the end customer. Interest rate fluctuations would also impact the attractiveness of any lease financing offerings for our customers. Additionally, the managed services option is limited by the creditworthiness of the customer and, as with all leases, the customer’s willingness to commit to making fixed payments regardless of the output of the system.

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Bloom Electrons Financing Program

In 2010, we began offering our Energy Servers through Bloom Electrons, our PPA financing program. This program is financed via special purpose investment entities (PPA entities), which are majority-owned by third-party investors and by us as a minority investor. The investors contribute cash to the PPA entity in exchange for equity interests, providing funding for the PPA entities to purchase the Energy Servers from us. As we identify end customers, the PPA entity enters into an agreement with the end customer pursuant to which the customer agrees to purchase the electric power generated by the Energy Server at a specified rate per kilowatt hour for a specified term, which can range from 10 to 21 years. As with our purchase and leasing arrangements, the first year warranty and guarantees are included in the price of the product to the PPA entity. The PPA entity typically enters into an operations and maintenance services agreement with us following the first year of service to extend the warranty services and performance guarantees. This service agreement is renewed and paid for on an annual basis by the PPA entity.

Product revenue associated with the sale of the Energy Servers under the PPAs that qualify as sales-type leases is recognized at the present value of the minimum lease payments, which approximate fair value, assuming all other conditions for revenue recognition noted above have also been met. Customer purchases financed by PPA entities since 2014 have been accounted for as operating leases and the related revenue under those agreements have been recognized as electricity revenue as the electricity is produced and paid for by the customer. Under each PPA arrangement, while the end customer pays the PPA entity over the life of the contract for the electricity consumed, the timing of cash receipts to us is similar to that of an end-user directly purchasing an Energy Server from us.

Under our PPA financing arrangements, we and our PPA tax equity investors contribute funds into a limited liability company, which is treated as a partnership for U.S. federal income tax purposes, and which owns the operating entity that acquires Energy Servers. This operating entity then contracts with us to operate and service the Energy Servers. The operating entity sells the electricity produced to the end customers under power purchase agreements, or PPAs. Any debt incurred by the PPA entities is non-recourse to us. Cash generated by the electricity sales, as well as from any applicable government incentive programs, is used to pay operating

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expenses of the operating entity (including the operations and maintenance services we provide) and to service the non-recourse debt, with the remaining cash flows distributed to the PPA investors. The PPA tax equity investors receive substantially all of the value attributable to the long-term recurring customer payments, investment tax credits, accelerated tax depreciation and, in some cases, other incentives until the PPA tax equity investors receive their contractual rate of return. In some cases, after the PPA tax equity investors receive their contractual rate of return, we expect to receive substantially all of the remaining value attributable to the long-term recurring customer payments and the other incentives. As of December 31, 2015, none of our customers under our PPAs have defaulted on their payment obligations.

The Energy Servers purchased by the PPA entities are recorded as property, plant and equipment and included within our consolidated balance sheets. We then reduce these assets by the amounts received by the investors from U.S. Treasury Department grants and the associated incentive rebates. In turn, we recognize the incentive rebates and subsequent customer payments as electricity revenue over the customer lease term and amortize U.S. Treasury Department grants as a reduction to depreciation of the associated Energy Servers over the term of the PPA.

We have determined that we are the primary beneficiary in these investment entities. Accordingly, we consolidate 100% of the assets, liabilities and operating results of these entities, including the Energy Servers and lease income, in our consolidated financial statements. We recognize the investors’ share of the net assets of the investment entities as noncontrolling interests in subsidiaries in our consolidated balance sheet. We recognize the amounts that are contractually payable to these investors in each period as distributions to noncontrolling interests in our consolidated statements of convertible redeemable preferred stock and equity. Our consolidated statements of cash flows reflect cash received from these investors as proceeds from investments by noncontrolling interests in subsidiaries. Our consolidated statements of cash flows also reflect cash paid to these investors as distributions paid to noncontrolling interests in subsidiaries. We reflect any unpaid distributions to these investors as distributions payable to noncontrolling interests in subsidiaries on our consolidated balance sheets.

We have established six different PPA entities to date. Four PPA entities have utilized their entire available financing capacity. We expect the remaining two PPA entities to complete their purchases of Energy Servers during 2016.

Through our Bloom Electrons financing program, a total of approximately $760.9 million in financing has been funded through December 31, 2015, including approximately $385.7 million in equity investments and an additional $375.2 million in non-recourse debt to support an aggregate deployment of approximately 87 megawatts of Energy Servers as of December 31, 2015. Investors in our PPA entities include banks and other large companies such as Credit Suisse, Exelon Generation Company, Intel Corporation and U.S. Bancorp. In the future, in addition to or in lieu of arranging customer financing through PPA entities, we may use debt, equity or other financing strategies to fund our operations.

For further information about our PPA entities, see Note 13, Power Purchase Agreement Programs, to our consolidated financial statements included in this prospectus.

Factors Affecting Our Future Performance

Delivery and Installation of Our Product

The timing of delivery and installations of our products have a significant impact on the timing of the recognition of product revenue. Many factors can cause a lag between the time that a customer signs a purchase order and our recognition of product revenue. These factors include the number of Energy Servers installed per site, local permitting and utility requirements, environmental, health and safety requirements, weather and customer facility construction schedules. Many of these factors are unpredictable and their resolution is often outside of our or our customers’ control. Customers may also ask us to delay an installation for reasons unrelated

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to the foregoing, including delays in their obtaining financing. Further, due to unexpected delays, deployments may require unanticipated expenses to expedite delivery of materials or labor to ensure the installation meets the timing objectives. These unexpected delays and expenses can be exacerbated in periods in which we deliver and install a larger number of smaller projects. In addition, if even relatively short delays occur, there may be a significant shortfall between the revenue we expect to generate in a particular period and the revenue that we are able to recognize. For our installations, revenue and cost of revenue can fluctuate significantly on a periodic basis depending on the timing of acceptance and the type of financing used by the customer.

Our product sales backlog was $662.8 million, equivalent to 879 systems, or 87.9 megawatts, as of December 31, 2015. We define product sales backlog as signed customer product sales orders received prior to the period end, but not yet accepted.

Cost to Service Our Energy Servers

We generally offer our customers the opportunity to renew their operations and maintenance service agreements on an annual basis, for up to 20 years, at prices predetermined at the time of purchase. Our pricing of these contracts and our reserves for warranty and replacement are based upon our estimates of the life of our Energy Servers and certain of their components, particularly the fuel cell stacks. We also provide performance warranties and guarantees covering the efficiency and output performance of our Energy Servers. We do not have a long history with a large number of field deployments, and our estimates may prove to be incorrect. Failure to meet these performance warranties and guarantee levels may require us to replace the Energy Servers or refund their cost to the customer, or require us to make cash payments to the customer based on actual performance, as compared to expected performance, capped at a percentage of the relevant equipment purchase prices.

Availability of Capital and Investments for Power Purchase Agreements

We rely on access to equity and debt financing to provide attractively-priced financing for our customers. Our future success depends on our and our customers’ ability to raise capital from third parties on competitive terms to help finance the deployment of our systems. It is therefore possible that the amounts investors are willing to invest in the future would not be enough to support customer demand or could decrease from current levels, or we may be required to provide a larger allocation of customer payments to investors in any future PPA structures as a result of changes in the financing markets.

Government Incentives and Regulation

Our cost of capital, the price we can charge for electricity, the cost of our systems and the demand for particular types of energy generation are impacted by a number of federal, state and local government incentives and regulations. These include tax credits, particularly the federal ITC, tax abatements, and state incentive programs. These programs have been challenged from time to time by utilities, governmental authorities and others. The ITC is currently scheduled to expire on December 31, 2016. Other incentives may also decrease in the future. A reduction in such incentives could make our products less attractive relative to other alternatives and could adversely affect our results of operations, cost of capital and growth prospects.

Although we generally are not regulated as a utility, federal, state and local government statutes and regulations concerning electricity heavily influence the market for our product and services. These statutes and regulations often relate to electricity pricing, net metering, incentives, taxation, competition with utilities, and the interconnection of customer-owned electricity generation. In the United States, governments continuously modify these statutes and regulations. Governments, often acting through state utility or public service commissions, change and adopt different rates for commercial customers on a regular basis. These changes can have a positive or negative impact on our ability to deliver cost savings to customers for the purchase of electricity.

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Value Proposition in Current and New Markets

Our customers purchase our products to generate electricity. We expect that changes in the prices of our Energy Servers, grid electricity and natural gas, will significantly affect demand for our product. We have sold our Energy Servers to customers across 10 states in the United States, as well as in Japan and India. We have focused on these states, and the two international markets we have entered, because the utility-generated energy prices, regulatory policies and/or government incentives in these locations have provided the most compelling markets for distributed fuel cell energy. We believe that these markets remain significantly underpenetrated, and we intend to further penetrate these markets by investing, marketing and expanding our reach within these regions. We also plan to expand into additional states and international markets where we believe we can offer our Energy Servers at attractive prices to customers relative to local grid electricity and where natural gas is readily available at attractive prices. Our ability to be successful in these markets will largely depend on the level of grid prices in such markets.

Key Operating Metrics

We monitor several key operating metrics, including those set forth below, to help us evaluate growth trends, measure the effectiveness of our sales and marketing efforts, and assess operational efficiencies.

	Years Ended December 31,
	2014		2015
Acceptances during the period (in 100 kilowatt systems)		351		349
Total megawatts deployed as of the year ended		152		187

Acceptances During the Period. We deem an acceptance to occur when our Energy Servers sold have been installed and running at full power for 24 hours, unless we have an agreement with the customer defining acceptance differently. We measure each system manufactured, shipped and accepted in terms of 100 kilowatt equivalents.

Total Megawatts Deployed. We measure the electricity-generating capacity of our deployed Energy Servers in megawatt capacity. Megawatt capacity is the expected maximum output an Energy Server can produce (i.e., the nameplate capacity). Total megawatts deployed represent the aggregate megawatt capacity of operating Energy Servers in the field on a given date. Actual production may be less or more than the megawatt capacity assigned to a particular Energy Server. We believe total megawatts deployed is indicative of the growth of our business from period to period.

Components of GAAP Results of Operations

Revenue

We primarily recognize revenue from the sale and installation of Energy Servers and by providing services under operations and maintenance services contracts.

Our total revenue is comprised of the following:

Product Revenue

All of our product revenue is generated from the sale and installation of our Energy Servers to direct purchase and lease customers. We generally begin to recognize product revenue from contracts with customers for the sales of our Energy Servers once we achieve acceptance; that is, generally when the system has been installed and running at full power for 24 hours.

Our product offerings contain multiple elements representing a combination of revenue from Energy Servers, installation and operations and maintenance services. Upon acceptance, we allocate fair value to each of

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these elements, and we limit the amount of revenue recognized for delivered elements to an amount that is not contingent upon future delivery of additional products or services or meeting any specified performance conditions.

The amount of product revenue we recognize in a given period is materially dependent on the volume and size of installations of our Energy Servers in a given period and on the type of financing used by the customer. As an example, our total revenue on a GAAP basis was approximately $277.7 million, $248.1 million and $172.9 million in 2013, 2014 and 2015, respectively. These decreases were due in large part to decreases in sales that required revenue recognition up front, as well as sales in 2014 being affected by a lower average sales price as a result of a direct purchase for a large customer site with the installation managed by the customer.

Service Revenue

Service revenue is generated from operations and maintenance services agreements that extend the standard warranty service coverage beyond the initial one-year warranty for Energy Servers sold under direct purchase and lease sales. Customers can renew their operating and maintenance services agreements on an annual basis for up to 20 years, at prices predetermined at the time of purchase of the Energy Server. Revenue is recognized from such operations and maintenance services based on the fair value allocated to such operations and maintenance services under GAAP, ratably over the renewed one-year service period. We anticipate that almost all of our customers will continue to renew their operations and maintenance services agreements each year.

Electricity Revenue

Our PPA entities purchase Energy Servers from us and sell the electricity produced by these systems to customers through long-term PPAs. Customers are required to purchase all of the electricity produced by the Energy Servers at agreed-upon rates over the course of the PPA’s term. We generally recognize revenue from such PPA entities as the electricity is provided over the term of the agreement.

PPA I Decommissioning

During 2015, we recorded a reduction in product revenue totaling $41.8 million for the decommissioning of our PPA I Energy Servers.

Our PPA I sales arrangements qualified as sales-type leases, and therefore, product revenue was recognized upfront at acceptance and a customer financing receivable was recorded on the balance sheet. The product revenue related to these arrangements was recognized during the period from 2010 through 2012. To date, we have incurred significant costs to service and maintain these first and second generation Energy Servers deployed in these arrangements which are still in service. Our new generation Energy Servers being deployed have longer lives with lower service and maintenance costs than the earlier generation Energy Servers. In an effort to minimize the financial effect of these service costs in future periods from these legacy systems, in December 2015, we agreed to a PPA I fleet decommissioning program with our tax equity investor whereby we would seek to renegotiate our existing PPA arrangements and purchase the tax equity investor’s interest in PPA I.

In the quarter ending March 31, 2016, we issued an additional $25.0 million of our 5% Notes for the purchase of such tax equity investor’s interest. Since the decommissioning impacts existing customers, we have and will continue to convert these existing customers from a PPA I sales arrangement to either a new Bloom Electrons agreement or another lease arrangement and will install a newer generation Energy Server. A significant portion of our non-GAAP product and installation revenue in the quarter ended December 31, 2015 was attributable to new contracts replacing agreements that were terminated in connection with our PPA I decommissioning program. As the original sale was recognized as product revenue upfront under the assumption that the lease payments were non-cancellable, we recorded the related decommissioning charge as a reduction in product revenue on the consolidated statement of operations and a related asset impairment charge of $31.8 million related to the customer financing receivable as this receivable will not be collectible.

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Additionally, for PPA I, our policy is that cash grants received under the American Recovery and Reinvestment Act of 2009 (ARRA) are treated as a revenue when received. Charges for estimated future cash expenditures were recorded in December 2015 for the estimated loss of $10.0 million related to estimated reimbursements of such cash grants received due to certain recapture provisions under the grant program. The decommissioning program is expected to be completed by the fourth quarter of 2016.

Cost of Revenue

Our total cost of revenue consists of cost of product revenue, cost of service revenue and cost of electricity revenue. It also includes personnel costs associated with our operations and global customer support organizations consisting of salaries, benefits, bonuses, stock-based compensation and facility level depreciation allocated based on headcount.

Cost of Product Revenue

Cost of product revenue consists of costs of Energy Servers that we sell to direct and lease customers, including costs of materials, personnel costs, certain allocated costs, shipping costs, provisions for excess and obsolete inventory, and the depreciation costs of our equipment. Because the sale of our Energy Servers includes a one-year warranty, cost of product revenue also includes first year warranty costs. We provide certain warranties and performance guarantees regarding the Energy Servers’ efficiency and output during the first year warranty period. We expect our cost of product revenue to increase in absolute dollars as we deliver and install more Energy Servers and our product revenue increases. On a per unit basis, which we measure in dollars-per-kilowatt, we have reduced our material costs by over 75% from the inception of our first generation Energy Server to our current generation Energy Server. Material costs per unit came down by more than 50% over the life of our first generation system and by over 40% over the life of our second generation system. With each successive new generation, we have been able to reduce the material costs compared to the prior generation’s material costs: Our second generation had material costs at the start of production that were approximately 60% lower per kilowatt than our first generation and our third generation had material costs at the start of production that were more than 35% lower per kilowatt than our second generation.

Cost of Service Revenue

Cost of service revenue consists of costs incurred under maintenance service contracts for all customers including direct sales, lease and PPA customers. Such costs include personnel costs for our customer support organization, certain allocated costs, and extended maintenance-related product repair and replacement costs. After the initial included warranty period expires, customers have the opportunity to renew their operations and maintenance services agreements on an annual basis, for up to 20 years, at prices predetermined at the time of purchase of the Energy Server. We expect our cost of service revenue to increase in absolute dollars as our end-customer base of megawatts deployed grows.

Cost of Electricity Revenue

Cost of electricity revenue primarily consists of the depreciation of the cost of the Energy Servers owned by our PPA entities and the cost of gas purchased in connection with PPAs entered into by our first PPA entity. The cost of electricity revenue is generally recognized over the term of the customer’s PPA. The cost of depreciation of the Energy Servers is reduced by the amortization of any U.S. Treasury Department grant payment in lieu of the energy investment tax credit associated with these systems. We expect our cost of electricity revenue to increase in absolute dollars as our end-customer base of megawatts deployed grows.

Gross Profit (Loss)

Gross profit (loss) has been and will continue to be affected by a variety of factors, including the sales price of our products, manufacturing costs, the costs to maintain the systems in the field, the mix of financing options

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used, and the mix of revenue between product, service and electricity. We expect our gross profit to fluctuate over time depending on the factors described above.

Operating Expenses

Research and Development

Research and development costs are expensed as incurred and consist primarily of personnel costs. Research and development expense also includes prototype related expenses and allocated facilities costs. We expect research and development expense to increase in absolute dollars as we continue to invest in our future products and services, although our research and development expense may fluctuate as a percentage of total revenue.

Sales and Marketing

Sales and marketing expense consists primarily of personnel costs, including commission costs. We expense commission costs as earned. Sales and marketing expense also includes costs for market development programs, promotional and other marketing costs, travel costs, office equipment and software, depreciation, professional services, and allocated facilities costs. We expect sales and marketing expense to continue to increase in absolute dollars as we increase the size of our sales and marketing organizations and to expand our international presence, although our sales and marketing expense may fluctuate as a percentage of total revenue.

General and Administrative

General and administrative expense consists of personnel costs, as well as fees for professional services. General and administrative personnel include our executive, finance, human resources, information technology, facilities, business development, and legal organizations. We expect general and administrative expense to increase in absolute dollars due to additional legal fees and costs associated with accounting, insurance, investor relations, SEC and stock exchange compliance, and other costs associated with being a public company, although our general and administrative expense may fluctuate as a percentage of total revenue.

Interest Expense

Interest expense primarily consists of interest charges associated with our secured line of credit, long-term debt facilities, financing obligations and capital lease obligations. We expect interest charges to decrease in the near term as a result of pay downs of the debt obligations over the course of the debt arrangements.

Other Expense, Net

Other expense, net primarily consists of gains or losses associated with foreign currency fluctuations, net of income earned on our cash and cash equivalents holdings in interest-bearing accounts. We have historically invested our cash in money-market funds.

Gain/Loss on Revaluation of Warrant Liabilities

Warrants issued to certain investors and lenders that allow them to acquire our convertible preferred stock have been classified as liability instruments on our balance sheet. We record any changes in the fair value of these instruments between reporting dates as a separate line item in our statement of operations. Some of the warrants issued are mandatorily convertible to common stock and subsequent to the completion of this offering, they will no longer be recorded as a liability related to these mandatorily converted warrants.

Provision for Income Taxes

Provision for income taxes consists primarily of federal and state income taxes in the United States and income taxes in foreign jurisdictions in which we conduct business. We account for income taxes using the

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liability method under Financial Accounting Standards Board Accounting Standards Codification Topic 740, “Income Taxes” (ASC 740). Under this method, deferred tax assets and liabilities are determined based on net operating loss carryforwards, research and development credit carryforwards, and temporary differences resulting from the different treatment of items for tax and financial reporting purposes. Deferred items are measured using the enacted tax rates and laws that are expected to be in effect when the differences reverse. Additionally, we must assess the likelihood that deferred tax assets will be recovered as deductions from future taxable income. We have provided a full valuation allowance on our deferred tax assets because we believe it is more likely than not that the deferred tax assets will not be realized. At December 31, 2015, we had federal and state net operating loss carryforwards of $1.4 billion and $1.1 billion, respectively, which will expire, if unused, beginning in 2022 and 2016, respectively.

Net Income (Loss) Attributable to Noncontrolling Interests

We determine the net income (loss) attributable to common stockholders by deducting from net income (loss) in a period the net income (loss) attributable to noncontrolling interests. We allocate profits and losses to the noncontrolling interests under the hypothetical liquidation at book value (HLBV) method. HLBV is a balance sheet-oriented approach for applying the equity method of accounting when there is a complex structure, such as our investment entity structure. The determination of equity in earnings under the HLBV method requires management to determine how proceeds upon a hypothetical liquidation of the entity at book value would be allocated between its investors. However, the redeemable noncontrolling interests balance is at least equal to the redemption amount. The noncontrolling interests and redeemable noncontrolling interests balance is presented as a component of permanent equity in the consolidated balance sheets or as temporary equity in the mezzanine section of the consolidated balance sheets as redeemable noncontrolling interests when the third-parties have the right to redeem their interests in the funds for cash or other assets.

For income tax purposes, the tax equity partner, who has committed to invest in the consolidated partnerships, will receive a greater proportion of the share of losses and other income tax benefits. This includes the allocation of investment tax credits, which will be distributed to the tax equity partner and to one of our wholly-owned subsidiaries based on the allocation specified in each respective partnership agreement until the tax equity partner’s targeted rate of return under the partnership agreement is met. For certain entities, after the PPA tax equity investors receive their contractual rate of return, we receive substantially all of the remaining value attributable to the long-term recurring customer payments and the other incentives.

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GAAP Results of Operations

The following table sets forth selected consolidated statements of operations data for each of the periods indicated:

	Years Ended December 31,
	2014			2015
	(in thousands)
Consolidated statements of operations data:
Revenue
Product	$	174,450		$	122,441
Service		26,437			36,944
Electricity		47,253			55,311
Subtotal		248,140			214,696
PPA I decommissioning		—			(41,807	)
Total revenue		248,140			172,889
Cost of revenue
Product		231,800			187,731
Service		105,657			135,470
Electricity		24,305			31,372
Total cost of revenue		361,762			354,573
Gross profit (loss)		(113,622	)		(181,684	)
Operating expenses
Research and development		53,001			43,933
Sales and marketing		16,434			19,543
General and administrative		50,573			58,976
Total operating expenses		120,008			122,452
Loss from operations		(233,630	)		(304,136	)
Interest expense		(21,606	)		(40,633	)
Other expense, net		(4,350	)		(2,891	)
Gain (loss) on revaluation of warrant liabilities		(1,825	)		2,686
Loss before income taxes		(261,411	)		(344,974	)
Income tax provision		574			707
Net loss		(261,985	)		(345,681	)
Net loss attributable to noncontrolling interest and redeemable noncontrolling interests		(44,369	)		(4,678	)
Net loss attributable to common stockholders	$	(217,616	)	$	(341,003	)

Includes stock-based compensation as follows:

	Years Ended December 31,
	2014		2015
	(in thousands)
Cost of revenue	$	5,135	$	5,525
Research and development		3,915		3,804
Sales and marketing		2,542		3,298
General and administrative		6,655		8,272
Total stock-based compensation	$	18,247	$	20,899

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Comparison of the Years Ended December 31, 2014 and 2015

Total Revenue

	Years Ended December 31,					Change 2015 vs. 2014
	2014		2015			Amount			%
	(dollars in thousands)
Product	$	174,450	$	122,441		$	(52,009	)		(29.8	)%
Service		26,437		36,944			10,507			39.7
Electricity		47,253		55,311			8,058			17.1
Subtotal		248,140		214,696			(33,444	)		(13.5	)
PPA I decommissioning		—		(41,807	)		(41,807	)
Total revenue	$	248,140	$	172,889		$	(75,251	)		(30.3	)

Total revenue decreased approximately $75.3 million, or 30.3% for the year ended December 31, 2015, as compared to the year ended December 31, 2014. In 2015, we recorded a reduction in revenue totaling $41.8 million for the decommissioning of our PPA I program (see Note 14, PPA I Decommissioning), which partially contributed to the overall revenue decline.

Product revenue decreased approximately $93.8 million, or 53.8%, for the year ended December 31, 2015, as compared to the year ended December 31, 2014, which includes the impact of the decommissioning of our PPA I program described above. In addition to the impact of the PPA I decommissioning, this decrease was attributable in part to a higher mix of orders through our Bloom Electrons financing program, where revenue is recognized over the term of the agreement (generally 10 to 21 years) as electricity revenue, compared to direct purchase transactions, where revenue is generally recognized as product revenue on acceptance.

Service revenue increased approximately $10.5 million, or 39.7%, for the year ended December 31, 2015, as compared to the year ended December 31, 2014. This was primarily due to the increase in the number of annual maintenance contract renewals, driven by our expanding customer base and corresponding total megawatts deployed.

Electricity revenue increased approximately $8.1 million, or 17.1% for the year ended December 31, 2015, as compared to the year ended December 31, 2014. This was due to the fact that in 2015, we generated higher sales through our Bloom Electrons financing program, resulting in an increase of total megawatts deployed under the Bloom Electrons program to 86.9 from 71.3 in the prior year.

Total Cost of Revenue and Gross Profit (Loss)

	Years Ended December 31,						Change 2015 vs. 2014
	2014			2015			Amount			%
	(dollars in thousands)
Cost of revenue:
Product	$	231,800		$	187,731		$	(44,069	)		(19.0	)%
Service		105,657			135,470			29,813			28.2
Electricity		24,305			31,372			7,067			29.1
Total cost of revenue		361,762			354,573			(7,189	)		(2.0	)
Gross profit (loss)	$	(113,622	)	$	(181,684	)	$	(68,062	)		(59.9	)

Total cost of revenue decreased approximately $7.2 million, or 2.0%, for the year ended December 31, 2015, as compared to the year ended December 31, 2014. This decrease in cost of revenue was primarily

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attributable to a higher mix of orders through Bloom Electrons, our PPA financing program, in which cost of revenue is recognized over the term of the agreement (10 to 21 years) as cost of electricity revenue. This decrease was offset by a $29.8 million increase in service cost associated with ongoing operations and maintenance of deployed Energy Servers in the ordinary course of business.

Gross profit decreased $68.1 million, or 59.9%, in the year ended December 31, 2015, as compared to the year ended December 31, 2014. This decrease was a result of lower revenue and higher cost of service revenue as discussed above.

Operating Expenses

	Years Ended December 31,				Change 2015 vs. 2014
	2014		2015		Amount			%
	(dollars in thousands)
Research and development	$	53,001	$	43,933	$	(9,068	)		(17.1	)%
Sales and marketing		16,434		19,543		3,109			18.9
General and administrative		50,573		58,976		8,403			16.6
Total	$	120,008	$	122,452	$	2,444			2.0

Research and development expenses decreased approximately $9.1 million, or 17.1%, in the year ended December 31, 2015, as compared to the year ended December 31, 2014. This decrease was driven primarily by reductions in prototype materials of $6.4 million, a reduction in depreciation expense of $1.4 million, and $0.9 million in compensation related expense due to lower headcount.

Sales and marketing expenses increased approximately $3.1 million, or 18.9%, in the year ended December 31, 2015, as compared to the year ended December 31, 2014. Sales commissions increased by $1.0 million due to a higher volume of orders placed during the period. Compensation related costs increased $2.1 million from the prior period.

General and administrative expenses increased approximately $8.4 million, or 16.6%, in the year ended December 31, 2015, as compared to the year ended December 31, 2014. The increase in general and administrative expenses was due to an increase in legal related expenses of $3.4 million as we established a new PPA entity during the year, an increase of $1.8 million in insurance expenses, and increases in stock compensation expenses of $1.4 million, offset in part by savings in consulting and depreciation expenses of $1.2 million.

Other Income and Expenses

	Years Ended December 31,						Change 2015 vs. 2014
	2014			2015			Amount			%
	(dollars in thousands)
Interest expense	$	(21,606	)	$	(40,633	)	$	(19,027	)		(88.1	)%
Other expense, net		(4,350	)		(2,891	)		1,459			33.5
Gain (loss) on revaluation of warrant liabilities		(1,825	)		2,686			4,511			247.2
Total	$	(27,781	)	$	(40,838	)	$	(13,057	)		(47.0	)

Total other expenses increased $13.1 million, or 47.0%, in the year ended December 31, 2015, as compared to the year ended December 31, 2014. This increase was due to interest expense increasing $19.0 million, or

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88.1%, in the year ended December 31, 2015, as compared to the year ended December 31, 2014. The increase is consistent with the higher balances of financing obligations and outstanding debt in 2015, compared to the prior year.

This increase was offset by, other expense, net, decreasing $1.5 million, or 33.5%, in the year ended December 31, 2015, as compared to the year ended December 31, 2014. In addition, for the year ended December 31, 2015, we recorded a gain on the revaluation of warrants of $2.7 million. The revaluation related to a change in the value of previously issued warrants.

Provision for Income Taxes

	Years Ended December 31,				Change 2015 vs. 2014
	2014		2015		Amount		%
	(dollars in thousands)
Income tax provision	$	574	$	707		$    133		23.2	%

Income tax expense increased approximately $0.1 million, or 23.2%, in the year ended December 31, 2015, as compared to the year ended December 31, 2014 and was primarily due to fluctuations in tax on income earned by international entities due to the general growth of our business in international locations.

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Quarterly Results of Operations

The following tables set forth selected unaudited quarterly statements of operations data for each of the eight quarters in the two years ended December 31, 2015. The information for each of these quarters has been prepared on the same basis as the audited annual financial statements included elsewhere in this prospectus and, in the opinion of management, includes all adjustments, which includes only normal recurring adjustments, necessary for the fair presentation of the results of operations for these periods in accordance with generally accepted accounting principles in the United States. This data should be read in conjunction with our audited consolidated financial statements and related notes included elsewhere in this prospectus. These quarterly operating results are not necessarily indicative of our operating results for a full year or any future period.

	Three Months Ended
	Mar. 31, 2014			Jun. 30, 2014			Sep. 30, 2014			Dec. 31, 2014			Mar. 31, 2015			Jun. 30, 2015			Sep. 30, 2015			Dec. 31, 2015
	(in thousands)
Consolidated statements of operations data:
Revenue
Product	$	22,158		$	23,945		$	29,483		$	98,864		$	65,246		$	10,976		$	4,920		$	41,299
Service		5,437			6,167			6,808			8,025			8,383			9,127			9,217			10,217
Electricity		11,830			11,690			11,759			11,974			12,565			13,677			14,264			14,805
Subtotal		39,425			41,802			48,050			118,863			86,194			33,780			28,401			66,321
PPA I decommissioning		—			—			—			—			—			—			—			(41,807	)
Total revenue		39,425			41,802			48,050			118,863			86,194			33,780			28,401			24,514
Cost of revenue
Product		36,334			49,096			46,433			99,937			79,006			26,086			24,572			58,067
Service		15,305			16,726			43,748			29,878			42,829			23,651			35,105			33,885
Electricity		3,642			3,606			7,143			9,914			8,496			5,993			9,455			7,428
Total cost of revenue		55,281			69,428			97,324			139,729			130,331			55,730			69,132			99,380
Gross profit (loss)		(15,856	)		(27,626	)		(49,274	)		(20,866	)		(44,137	)		(21,950	)		(40,731	)		(74,866	)
Operating Expenses
Research and development		14,101			12,928			13,182			12,790			11,960			10,619			10,961			10,393
Sales and marketing		3,698			4,254			4,427			4,055			4,292			5,508			4,859			4,884
General and administrative		11,186			11,016			16,413			11,958			11,585			19,827			13,864			13,700
Loss from operations		(44,841	)		(55,824	)		(83,296	)		(49,669	)		(71,974	)		(57,904	)		(70,415	)		(103,843	)
Interest expense		(4,305	)		(4,845	)		(5,367	)		(7,089	)		(9,406	)		(8,551	)		(11,572	)		(11,104	)
Other expense, net		(381	)		(2,750	)		(41	)		(1,178	)		(2,300	)		(90	)		(332	)		(169	)
Gain (loss) on revaluation of warrant liabilities		290			70			68			(2,253	)		—			2,658			995			(967	)
Loss before income taxes		(49,237	)		(63,349	)		(88,636	)		60,189			(83,680	)		(63,887	)		(81,324	)		(116,083	)
Income tax provision		261			228			264			(179	)		98			187			204			218
Net loss		(49,498	)		(63,577	)		(88,900	)		(60,010	)		(83,778	)		(64,074	)		(81,528	)		(116,301	)
Net loss attributable to noncontrolling interest and redeemable noncontrolling interests
Net loss attributable to common stockholders

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Quarterly Revenue Trends

Product revenue can vary quarter to quarter due to changes in the buying behavior of our customers as customers shift to or from Bloom Electrons orders where revenue is recognized over the term of the agreement, as opposed to purchase or lease transactions, where revenue is generally recognized up front. Since we offer these different types of purchase options and the accounting treatment for these options can differ, the timing of revenue recognition quarter by quarter could be impacted by the mix of purchase, lease and Bloom Electrons orders in a particular quarter. Additionally, service revenue and electricity revenue have increased over time due to the continued expansion of our deployed fleet.

In addition, quarterly revenue is likely to fluctuate based on, among other things, the factors discussed under “—Factors Affecting Our Future Performance.” For example, in the quarters ended December 31, 2014 and March 31, 2015, large installations were accepted by customers under direct purchase arrangements, resulting in higher product revenue in those periods.

Quarterly Gross Profit Trends

Quarterly gross profit (loss) fluctuates with total revenue, the level of investment associated with maintaining and upgrading the deployed fleet, and to a lesser extent, the ability to achieve estimated installation cost for new site installations. Quarterly gross profit (loss) exhibited larger losses in the quarters where product revenue was lowest and investments in the deployed fleet are highest.

Quarterly Operating Expenses Trends

Total operating expenses increased year-over-year for all periods presented primarily due to the addition of personnel and the ongoing legal expenses related to deploying new PPA entities. Research and development expense decreased over the year ended December 31, 2015 due to savings in materials and reductions in staffing compared to the year ended December 31, 2014. General and administrative expense were higher in the three months ended June 30, 2015 and the three months ended September 30, 2014, primarily due to the legal costs incurred to set up PPA entities during those periods.

Non-GAAP Financial Measures

To supplement our consolidated financial statements presented in accordance with GAAP, we monitor and consider non-GAAP total revenue, non-GAAP gross profit (loss), and non-GAAP loss from operations, which are non-GAAP financial measures. These measures are not prepared in accordance with GAAP, and should not be considered in isolation from, or as an alternative to, measures prepared in accordance with GAAP. These non-GAAP financial measures are not based on any standardized methodology prescribed by GAAP and are not necessarily comparable to similarly-titled measures presented by other companies.

We use these non-GAAP financial measures to evaluate our operating performance and trends and make planning decisions. We believe that these measures can provide useful supplemental information to help investors better understand underlying trends in our business. Accordingly, we believe these non-GAAP financial measures provide useful information to investors and others in understanding and evaluating our operating results, enhancing the overall understanding of our past performance and future prospects, and allowing for greater transparency with respect to key financial metrics used by our management in its financial and operational decision-making.

There are a number of limitations related to the use of these non-GAAP financial measures. These limitations include:

• non-GAAP total revenue does not reflect the effect of relative selling price allocations between separate units of accounting, as required under GAAP, to ensure fair value is consistently applied

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across product, installation and maintenance service fees. Rather, for non-GAAP revenue, the selling price allocations are based on the amounts specified in the customer agreement. This has the effect of increasing the amount of non-GAAP product revenue recognized on acceptance of an Energy Server and decreasing the amount of non-GAAP service revenue recognized in later years;

• non-GAAP total revenue and non-GAAP gross profit (loss) record product and installation revenue upon acceptance for transactions that are, in substance, operating leases under GAAP, whereas GAAP would require revenue to be recorded over the contract period;

• non-GAAP gross profit (loss) and non-GAAP loss from operations excludes stock-based compensation expense, which has recently been, and will continue to be for the foreseeable future, a significant recurring expense for our business and an important part of our employee compensation strategy;

• non-GAAP loss from operations excludes the revaluation of our redeemable convertible preferred stock warrant liability, which was a historical recurring non-cash charge prior to this initial public offering;

• non-GAAP total revenue, non-GAAP gross profit (loss) and non-GAAP loss from operations, exclude the impact of the PPA I decommissioning program; and

• non-GAAP loss from operations excludes the expense incurred due to the formation of new PPA entities which are one-time in nature for each PPA, but will recur as part of an ongoing sales strategy.

For a reconciliation of our non-GAAP financial measures to measures computed in accordance with GAAP, see “Selected Consolidated Financial Data.”

	Years Ended December 31,
	2014			2015
	(in thousands)
Non-GAAP total revenue
Product	$	282,305		$	279,060
Installation		27,216			48,297
Service		33,812			56,697
Total non-GAAP revenue	$	343,333		$	384,054
	Years Ended December 31,
	2014			2015
	(in thousands)
Non-GAAP gross profit (loss)
Product	$	14,053		$	22,793
Installation		(5,277	)		(8,787	)
Service		(71,460	)		(78,268	)
Total non-GAAP gross profit (loss)	$	(62,684	)	$	(64,262	)
	Years Ended December 31,
	2014			2015
	(in thousands)
Non-GAAP loss from operations	$	(159,278	)	$	(159,303	)

Non-GAAP Total Revenue. Non-GAAP total revenue has three components: product, installation and service.

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Non-GAAP product revenue is recognized upon acceptance for all systems accepted during a given period, regardless of the financing model. For example, under GAAP, revenue attributable to the value of the Energy Server acquired under our Bloom Electrons program would be recognized over the term of the applicable PPA; however, we recognize non-GAAP product revenue up front at the time of acceptance.

Non-GAAP installation revenue is the contracted value of the installation recognized at the time of acceptance. Under GAAP, installation revenue is recognized either as part of product revenue or electricity revenue, depending on the financing model used.

Non-GAAP service revenue includes all operations and maintenance services agreement renewals, which are recognized ratably over the life of the service contract, which is generally one year.

In addition, we allocate revenue between product, service and installation at the amounts specified in the individual customer agreement. This differs from GAAP, which requires us to allocate fair market value between product, installation and service.

Electricity revenue is not a component of non-GAAP total revenue and is reallocated to product and service, as described above. The portion that is allocated to service is based on the contracted service rate between us and the PPA entity. The portion that is allocated to product and installation represents the net present value of future electricity revenue not attributable to service.

We also exclude from non-GAAP revenue the impact of the PPA I decommissioning program.

The resulting non-GAAP revenue for the years ended December 31, 2013, 2014 and 2015 was $470.6 million, $343.3 million and $384.1 million, respectively. For 2013 non-GAAP revenue, we adjusted 2013 GAAP revenue of $277.7 million by adding to it $196.8 million of non-GAAP revenue, which recognizes such revenue at acceptance that would otherwise be recognized ratably over the life of the contract for sales made through our Bloom Electrons Program and certain lease financing arrangements, less $3.9 million of electricity revenue that would have been previously recognized, to arrive at non-GAAP total revenue of $470.6 million.

We believe non-GAAP total revenue provides useful information regarding the success of our business, as recognizing revenue on acceptance is more consistent with the timing of the product and installation related cash receipts.

Non-GAAP Gross Profit (Loss). Non-GAAP gross profit (loss) includes the non-GAAP revenue for product, installation and service, as described above, and the associated costs for that revenue. We also exclude stock compensation expense and other non-recurring expenses from non-GAAP gross profit (loss).

Non-GAAP Loss from Operations. We define non-GAAP loss from operations as non-GAAP gross profit (loss), as defined above, less operating expenses, excluding stock-based compensation expense, PPA entity set-up costs and other one-time expenses.

Non-GAAP Total Revenue

	Years Ended December 31,				Change 2015 vs. 2014
	2014		2015		Amount			%
	(dollars in thousands)
Non-GAAP total revenue
Product	$	282,305	$	279,060	$	(3,245	)		(1.1	)%
Installation		27,216		48,297		21,081			77.5
Service		33,812		56,697		22,885			67.7
Total non-GAAP revenue	$	343,333	$	384,054	$	40,721			11.9

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Non-GAAP total revenue increased approximately $40.7 million, or 11.9%, for the year ended December 31, 2015, as compared to the year ended December 31, 2014. The increase was primarily attributable to an increase in service revenue driven mainly by the growth of our installed base and the renewal of customer maintenance contracts and higher installation revenue. Installation revenue increased due primarily to an increase in the average installation revenue billed to our customers per site. Average installation revenue per site was driven by a change in mix from generally many servers per single site to fewer servers located per site, as well as a large installation in 2014 which was largely managed by the customer rather than us. Our non-GAAP product revenue was flat in 2015 as we experienced some delays in installing our systems against customer orders. In 2015, we made investments to improve our installation processes and to increase our installation capacity. A significant portion of our non-GAAP product and installation revenue in the quarter ended December 31, 2015 was attributable to new contracts replacing agreements that were terminated in connection with our PPA I decommissioning program.

Non-GAAP Gross Profit (Loss)

	Years Ended December 31,						Change 2015 vs. 2014
	2014			2015			Amount			%
	(dollars in thousands)
Non-GAAP gross profit (loss)
Product	$	14,053		$	22,793		$	8,740			62.2	%
Installation		(5,277	)		(8,787	)		(3,510	)		(66.5	)
Service		(71,460	)		(78,268	)		(6,808	)		(9.5	)
Total non-GAAP gross profit (loss)	$	(62,684	)	$	(64,262	)	$	(1,578	)		(2.5	)

Non-GAAP gross profit decreased approximately $1.6 million, or 2.5%, for the year ended December 31, 2015, as compared to the year ended December 31, 2014. We achieved higher profit from product by $8.7 million, or 62.2%, due to manufacturing efficiencies and lower product cost. This increase was offset by an increase in service cost associated with ongoing operations and maintenance of the deployed Energy Servers in the ordinary course of business, as well as an increase in the costs to install our Energy Servers. The installation cost per site increased, driven by a change in mix from generally many servers per single site to fewer servers located per site. Fixed costs associated with site diligence, permits, installation and monitoring infrastructure support result in a site with many servers costing less per kilowatt, compared to a site with just one server.

Non-GAAP Loss from Operations

	Years Ended December 31,						Change 2015 vs. 2014
	2014			2015			Amount			%
	(dollars in thousands)
Non-GAAP loss from operations	$	(159,278	)	$	(159,303	)	$	(25	)		(0.0	)%

Non-GAAP loss from operations was flat for the year ended December 31, 2015, as compared to the year ended December 31, 2014.

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Quarterly Non-GAAP Financial Measures

	Three Months Ended
	Mar. 31, 2014			Jun. 30, 2014			Sep. 30, 2014			Dec. 31, 2014			Mar. 31, 2015			Jun. 30, 2015			Sep. 30, 2015			Dec. 31, 2015
	(in thousands)
Non-GAAP revenue
Product	$	56,609		$	41,508		$	50,491		$	133,697		$	93,580		$	55,651		$	43,270		$	86,559
Installation		6,287			6,977			7,073			6,879			14,974			11,008			7,829			14,486
Service		6,136			7,061			9,064			11,551			12,675			13,838			14,541			15,643
Total Non-GAAP revenue	$	69,032		$	55,546		$	66,628		$	152,127		$	121,229		$	80,497		$	65,640		$	116,688
	Three Months Ended
	Mar. 31, 2014			Jun. 30, 2014			Sep. 30, 2014			Dec. 31, 2014			Mar. 31, 2015			Jun. 30, 2015			Sep. 30, 2015			Dec. 31, 2015
	(in thousands)
Non-GAAP gross profit (loss)
Product	$	1,820		$	(11,624	)	$	(1,563	)	$	25,420		$	5,532		$	5,047		$	(3,403	)	$	15,617
Installation		244			(1,353	)		(2,414	)		(1,754	)		(4,711	)		(4,052	)		(1,613	)		1,589
Service		(9,090	)		(9,580	)		(34,587	)		(18,203	)		(30,024	)		(9,687	)		(20,437	)		(18,120	)
Total Non-GAAP gross profit (loss)	$	(7,026	)	$	(22,557	)	$	(38,564	)	$	5,463		$	(29,203	)	$	(8,692	)	$	(25,453	)	$	(914	)
	Three Months Ended
	Mar. 31, 2014			Jun. 30, 2014			Sep. 30, 2014			Dec. 31, 2014			Mar. 31, 2015			Jun. 30, 2015			Sep. 30, 2015			Dec. 31, 2015
	(in thousands)
Non-GAAP loss from operations	$	(30,526	)	$	(46,847	)	$	(63,317	)	$	(18,588	)	$	(53,413	)	$	(32,072	)	$	(49,544	)	$	(24,274	)

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Reconciliation of Non-GAAP Quarterly Measures

GAAP to Non-GAAP Revenue Reconciliation

Quarter Ended March 31, 2014	GAAP Revenue		Adjustments for Ratable Revenue at Acceptance(1)			Adjustment to Contracted Amounts(2)			Interbusiness Allocation(3)						Total Revenue Adjustment			Non- GAAP Revenue
									Installation Revenue			Electricity Revenue
	(in thousands)
Revenue
Product	$	22,158	$	30,169		$	1,638		$	(6,287	)	$	8,931		$	34,451		$	56,609
Installation		—		—			—			6,287			—			6,287			6,287
Service		5,437		—			—			—			699			699			6,136
Electricity		11,830		(2,200	)		—			—			(9,630	)		(11,830	)		—
Total	$	39,425	$	27,969		$	1,638		$	—		$	—		$	29,607		$	69,032
Quarter Ended June 30, 2014
Revenue
Product	$	23,945	$	12,663		$	2,677		$	(6,977	)	$	9,200		$	17,563		$	41,508
Installation		—		—			—			6,977			—			6,977			6,977
Service		6,167		—			(1	)		—			895			894			7,061
Electricity		11,690		(1,595	)		—			—			(10,095	)		(11,690	)		—
Total	$	41,802	$	11,068		$	2,676		$	—		$	—		$	13,744		$	55,546
Quarter Ended September 30, 2014
Revenue
Product	$	29,483	$	16,544		$	4,028		$	(7,073	)	$	7,509		$	21,008		$	50,491
Installation		—		—			—			7,073			—			7,073			7,073
Service		6,808		—			(20	)		—			2,276			2,256			9,064
Electricity		11,759		(1,974	)		—			—			(9,785	)		(11,759	)		—
Total	$	48,050	$	14,570		$	4,008		$	—		$	—		$	18,578		$	66,628
Quarter Ended December 31, 2014
Revenue
Product	$	98,864	$	18,059		$	17,167		$	(6,879	)	$	6,486		$	34,833		$	133,697
Installation		—		—			—			6,879						6,879			6,879
Service		8,025		—			(105	)		—			3,631			3,526			11,551
Electricity		11,974		(1,857	)		—			—			(10,117	)		(11,974	)		—
Total	$	118,863	$	16,202		$	17,062		$	—		$	—		$	33,264		$	152,127

⁽¹⁾ This adjustment is to recognize revenue at the time of acceptance. We first add to GAAP revenue the portion of product revenue that would otherwise be recognized ratably over the life of the contract (10 to 21 years) for sales made through our Bloom Electrons Program and certain lease financing arrangements. We then deduct amounts previously recognized as non-GAAP product revenue from electricity revenue.

⁽²⁾ This adjustment is made to record as non-GAAP product and non-GAAP service revenue, the amounts specified in our contracts with the individual customer. Under GAAP, for certain contracts where product revenue is recognized up-front at acceptance, an allocation is made in accordance with ASC 605-25 from product revenue to service revenue, which is recognized ratably over the life of the service contract. Compared to the customer contract, this GAAP allocation reduces the amount of up-front product revenue and increases the amount of ratable service revenue that would be recognized in future periods. The adjustment in this column removes the impact of this allocation, aligning the non-GAAP product revenue and non-GAAP service revenue with the contracted amounts.

⁽³⁾ This adjustment to the components of GAAP revenue reclassifies certain product revenue to installation revenue that is bundled in product revenue for GAAP and reclassifies electricity revenue to either service or product revenue.

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	GAAP Revenue			Adjustments for Ratable Revenue at Acceptance(1)			Adjustment to Contracted Amounts(2)			Interbusiness Allocation(3)						Total Revenue Adjustment			Non- GAAP Revenue
Quarter Ended March 31, 2015										Installation Revenue			Electricity Revenue
	(in thousands)
Revenue
Product	$	65,246		$	33,053		$	3,960		$	(14,974	)	$	6,295		$	28,334		$	93,580
Installation		—			—			—			14,974			—			14,974			14,974
Service		8,383			—			(114	)		—			4,406			4,292			12,675
Electricity		12,565			(1,864	)		—			—			(10,701	)		(12,565	)		—
Total	$	86,194		$	31,189		$	3,846		$	—		$	—		$	35,035		$	121,229
Quarter Ended June 30, 2015
Revenue
Product	$	10,976			48,987		$	350		$	(11,008	)	$	6,346		$	44,675		$	55,651
Installation		—			—			—			11,008			—			11,008			11,008
Service		9,127			—			(96	)		—			4,807			4,711			13,838
Electricity		13,677			(2,524	)		—			—			(11,153	)		(13,677	)		—
Total	$	33,780		$	46,463		$	254		$	—		$	—			46,717		$	80,497
Quarter Ended September 30, 2015
Revenue
Product	$	4,920		$	39,535		$	439		$	(7,829	)	$	6,205		$	38,350		$	43,270
Installation		—			—			—			7,829			—			7,829			7,829
Service		9,217			—			(224	)		—			5,548			5,324			14,541
Electricity		14,264			(2,511	)		—			—			(11,753	)		(14,264	)		—
Total	$	28,401		$	37,024		$	215		$	—		$	—		$	37,239		$	65,640
Quarter Ended December 31, 2015
Revenue
Product	$	41,299		$	47,688		$	7,053		$	(14,486	)	$	5,005		$	45,260		$	86,559
Installation		—			—			—			14,486			—			14,486			14,486
Service		10,217			—			(322	)		—			5,748			5,426			15,643
Electricity		14,805			(4,052	)		—			—			(10,753	)		(14,805	)		—
PPA I decommissioning (4)		(41,807	)		—			—			—			—			41,807			—
Total	$	24,514		$	43,636		$	6,731		$	—		$	—		$	92,174		$	116,688

⁽¹⁾ This adjustment is to recognize revenue at the time of acceptance. We first add to GAAP revenue the portion of product revenue that would otherwise be recognized ratably over the life of the contract (10 to 21 years) for sales made through our Bloom Electrons Program and certain lease financing arrangements. We then deduct amounts previously recognized as non-GAAP product revenue from electricity revenue.

⁽²⁾ This adjustment is made to record as non-GAAP product and non-GAAP service revenue, the amounts specified in our contracts with the individual customer. Under GAAP, for certain contracts where product revenue is recognized up-front at acceptance, an allocation is made in accordance with ASC 605-25 from product revenue to service revenue, which is recognized ratably over the life of the service contract. Compared to the customer contract, this GAAP allocation reduces the amount of up-front product revenue and increases the amount of ratable service revenue that would be recognized in future periods. The adjustment in this column removes the impact of this allocation, aligning the non-GAAP product revenue and non-GAAP service revenue with the contracted amounts.

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⁽³⁾ This adjustment to the components of GAAP revenue reclassifies certain product revenue to installation revenue that is bundled in product revenue for GAAP and reclassifies electricity revenue to either service or product revenue.

⁽⁴⁾ This adjustment removes the impact of the PPA I decommissioning program (see Note 14, PPA I Decommissioning, to our consolidated financial statements included in this prospectus).

GAAP to Non-GAAP Gross Profit (Loss) Reconciliation

	GAAP Gross Profit			Total Revenue Adjustment(1)			Adjustment for Ratable Costs at Acceptance(2)			Stock-Based Comp and Other One Time Item		Interbusiness Allocation(3)						Non-GAAP Gross Profit
Quarter Ended March 31, 2014												Installation Costs			Electricity Costs
	(in thousands)
Gross profit
Product	$	(14,176	)	$	34,451		$	(22,199	)	$	1,006	$	6,088		$	(3,350	)	$	1,820
Installation		—			6,287			—			45		(6,088	)		—			244
Service		(9,868	)		699			—			79		—			—			(9,090	)
Electricity		8,188			(11,830	)		292			—		—			3,350			—
Total	$	(15,856	)	$	29,607		$	(21,907	)	$	1,130	$	—		$	—		$	(7,026	)
Quarter Ended June 30, 2014
Gross profit
Product	$	(25,151	)	$	17,563		$	(10,493	)	$	1,025	$	8,418		$	(2,986	)	$	(11,624	)
Installation		—			6,977			—			88		(8,418	)		—			(1,353	)
Service		(10,559	)		894			—			85		—			—			(9,580	)
Electricity		8,084			(11,690	)		620			—		—			2,986			—
Total	$	(27,626	)	$	13,744		$	(9,873	)	$	1,198	$	—		$	—		$	(22,557	)
Quarter Ended September 30, 2014
Gross profit
Product	$	(16,950	)	$	21,008		$	(13,759	)	$	1,223	$	9,597		$	(2,682	)	$	(1,563	)
Installation		—			7,073			—			110		(9,597	)		—			(2,414	)
Service		(36,940	)		2,256			—			97		—			—			(34,587	)
Electricity		4,616			(11,759	)		4,461			—		—			2,682			—
Total	$	(49,274	)	$	18,578		$	(9,298	)	$	1,430	$	—		$	—		$	(38,564	)
Quarter Ended December 31, 2014
Gross profit
Product	$	(1,073	)	$	34,833		$	(15,472	)	$	1,133	$	8,751		$	(2,752	)	$	25,420
Installation		—			6,879			—			118		(8,751	)		—			(1,754	)
Service		(21,853	)		3,526			—			124		—			—			(18,203	)
Electricity		2,060			(11,974	)		7,162			—		—			2,752			—
Total	$	(20,866	)	$	33,264		$	(8,310	)	$	1,375	$	—		$	—		$	5,463

⁽¹⁾  See “—GAAP to Non-GAAP Revenue Reconciliation” above.

⁽²⁾  This adjustment matches non-GAAP cost of product revenue with non-GAAP product revenue recognized at the time of acceptance. We then adjust electricity cost of revenue to match the electricity revenue adjustment.

⁽³⁾  This adjustment matches the installation and electricity cost of revenue with the installation and electricity interbusiness revenue reclassification.

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Quarter Ended March 31, 2015	GAAP Gross Profit			Total Revenue Adjustment(1)			Adjustment for Ratable Costs at Acceptance(2)			Stock-Based Comp and Other One Time Item		Interbusiness Allocation(3)						Non-GAAP Gross Profit
												Installation Costs			Electricity Costs
	(in thousands)
Gross profit
Product	$	(13,760	)	$	28,334		$	(27,587	)	$	1,100	$	19,805		$	(2,360	)	$	5,532
Installation		—			14,974			—			120		(19,805	)		—			(4,711	)
Service		(34,446	)		4,292			—			130		—			—			(30,024	)
Electricity		4,069			(12,565	)		6,136			—		—			2,360			—
Total	$	(44,137	)	$	35,035		$	(21,451	)	$	1,350	$	—		$	—		$	(29,203	)
Quarter Ended June 30, 2015
Gross profit
Product	$	(15,110	)	$	44,675		$	(38,373	)	$	1,118	$	15,202		$	(2,465	)	$	5,047
Installation		—			11,008			—			142		(15,202	)		—			(4,052	)
Service		(14,524	)		4,711			—			126		—			—			(9,687	)
Electricity		7,684			(13,677	)		3,528			—		—			2,465			—
Total	$	(21,950	)	$	46,717		$	(34,845	)	$	1,386	$	—		$	—		$	(8,692	)
Quarter Ended September 30, 2015
Gross profit
Product	$	(19,652	)	$	38,350		$	(29,971	)	$	1,145	$	9,559		$	(2,834	)	$	(3,403	)
Installation		—			7,829			—			117		(9,559	)		—			(1,613	)
Service		(25,888	)		5,324			—			127		—			—			(20,437	)
Electricity		4,809			(14,264	)		6,621			—		—			2,834			—
Total	$	(40,731	)	$	37,239		$	(23,350	)	$	1,389	$	—		$	—		$	(25,453	)
Quarter Ended December 31, 2015
Gross profit
Product	$	(16,768	)	$	45,260		$	(31,259	)	$	7,810	$	13,007		$	(2,433	)	$	15,617
Installation		—			14,486			—			110		(13,007	)		—			1,589
Service		(23,668	)		5,426			—			122		—			—			(18,120	)
Electricity		7,377			(14,805	)		4,995			—		—			2,433			—
PPA I decommissioning(4)		(41,807	)		41,807			—			—		—			—			—
Total	$	(74,866	)	$	92,174		$	(26,264	)	$	8,042	$	—		$	—		$	(914	)

⁽¹⁾  See “—GAAP to Non-GAAP Revenue Reconciliation” above.

⁽²⁾  This adjustment matches non-GAAP cost of product revenue with non-GAAP product revenue recognized at the time of acceptance. We then adjust electricity cost of revenue to match the electricity revenue adjustment.

⁽³⁾  This adjustment matches the installation and electricity cost of revenue with the installation and electricity interbusiness revenue reclassification.

⁽⁴⁾  This adjustment removes the impact of the PPA I decommissioning program (See Note 14, PPA I Decommissioning, to our consolidated financial statements included in this prospectus).

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GAAP to Non-GAAP Loss from Operations Reconciliation

	Three Months Ended
	Mar. 31, 2014			Jun. 30, 2014			Sep. 30, 2014			Dec. 31, 2014			Mar. 31, 2015			Jun. 30, 2015			Sep. 30, 2015			Dec. 31, 2015
	(in thousands)
GAAP loss from operations	$	(44,841	)	$	(55,824	)	$	(83,296	)	$	(49,669	)	$	(71,974	)	$	(57,904	)	$	(70,415	)	$	(103,843	)
Total Revenue Adjustment		29,607			13,744			18,578			33,264			35,035			46,717			37,239			92,174
Total Cost of Revenue Adjustment		(20,777	)		(8,675	)		(7,868	)		(6,935	)		(20,101	)		(33,459	)		(21,961	)		(18,222	)
Stock-based compensation		3,223			3,261			3,393			3,235			3,306			3,746			3,739			4,583
PPA entity set up costs and other one time legal expenses		2,262			647			5,876			1,517			321			8,828			1,854			1,034
Non-GAAP loss from operations	$	(30,526	)	$	(46,847	)	$	(63,317	)	$	(18,588	)	$	(53,413	)	$	(32,072	)	$	(49,544	)	$	(24,274	)

Quarterly Non-GAAP Revenue Trends

Non-GAAP revenue is based on the number of acceptances, which can fluctuate on a quarterly basis. The quarters ending December 2014 and March 2015 were characterized as having a greater percentage of sites with multiple servers. This resulted in our accepting more systems in those quarters and accounted for an increase in revenue in those quarters. In the quarters ended June 2015 and September 2015, we experienced an increase in the number of sites as a result of having a large percentage of sites with fewer single servers, resulting in installation delays and as a result delayed recognition of revenue. In 2015, we made investments to improve our installation processes and to increase our installation capacity.

In addition, quarterly non-GAAP revenue may fluctuate based on factors discussed under “Factors Affecting Our Future Performance.” For example, installations were accepted in the quarters ended December 31, 2014 and March 31, 2015, which resulted in higher product revenue in those periods.

Quarterly Non-GAAP Gross Profit (Loss) Trends

Non-GAAP quarterly gross profit (loss) fluctuates with product revenue, the investment in maintaining and upgrading the deployed fleet, and to a lesser extent, the ability to avoid exceeding estimated installation cost for new site installations. Non-GAAP quarterly gross profit (loss) exhibited larger losses in the quarters where product revenue was lowest and investments in the deployed fleet were highest.

Quarterly Non-GAAP Operating Loss Trends

Non-GAAP quarterly operating income fluctuates with gross profit (loss) as operating expenses have remained relatively flat quarter over quarter. The improvement in operating loss for the quarter ended December 31, 2015 reflects improvement in non-GAAP revenue resulting from higher acceptances, lower service costs and the leverage of our business model.

Liquidity and Capital Resources

We finance our operations, including the costs of acquisition and installation of Energy Servers, mainly through a variety of financing arrangements and PPA entities, credit facilities from banks, sales of our preferred stock, debt financings and cash generated from our operations. As of December 31, 2015, we had cash and cash equivalents of $135.0 million.

We believe that our existing cash and cash equivalents will be sufficient to meet our capital requirements for at least the next 12 months. Our future capital requirements may vary materially from those currently planned and will depend on many factors, including our rate of revenue growth, the timing and extent of spending on research and development efforts and other business initiatives, the rate of growth in the volume of system

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builds, the expansion of sales and marketing activities, market acceptance of our products and overall economic conditions. To the extent that current and anticipated future sources of liquidity are insufficient to fund our future business activities and requirements, we may be required to seek additional debt or equity financing. The sale of additional equity would result in additional dilution to our stockholders. The incurrence of debt financing would result in debt service obligations and the instruments governing such debt could provide for operating and financing covenants that would restrict our operations. Further, as most of our assets are collateralized in existing debt arrangements, new debt financing may be unsecured which may result in higher interest rate obligations.

Credit Facilities

Bloom Energy Indebtedness

In May 2013, we entered into a $5.0 million credit agreement and a $12.0 million financing agreement to help fund the building of a new facility in Newark, Delaware. The loan bears an annual interest rate of LIBOR, plus 4%. The weighted average interest rate of these borrowings was 4.2% and 4.2% for the years ended December 31, 2014 and 2015, respectively. The loan requires monthly payments and is secured by the manufacturing facility. As of December 31, 2015, the outstanding debt related to these credit agreements was $9.9 million. Under the terms of these credit agreements, we are required to comply with various restrictive covenants. As of December 31, 2015, we were in compliance with all of the covenants.

Between December 2014 and June 2015, we issued $193.2 million of three-year subordinated secured convertible promissory notes (the 8% Notes) to certain investors. The 8% Notes bear a fixed annual interest rate of 8.0%, compounded monthly, and are due at maturity in December 2017 and payable in cash or in kind at the election of the investor. The accrued interest would be due on each anniversary of the respective original issuance date of the 8% Notes. As of December 31, 2015, the outstanding principal and accrued interest on the 8% Notes was $208.6 million. The outstanding principal and accrued interest on each 8% Note will mandatorily convert into shares of our Series G convertible preferred stock at a conversion price per share of $25.76, and each such share of Series G convertible preferred stock will convert automatically into one share of our common stock, immediately prior to completion of an initial public offering.

In December 2015, we entered into two promissory note agreements with J.P. Morgan Securities LLC and Canadian Pension Plan Investment Board (CPPIB). The aggregate principal amount of the promissory notes is $160.0 million and bears a 5.0% fixed interest rate, (the 5% Notes), compounded monthly, and are due at maturity in December 2020. Interest on these notes is payable in cash or by the issuance of additional 5% Notes. As of December 31, 2015, the debt outstanding under the 5% Notes was $160.3 million, including accrued interest. Under the terms of the indenture governing the 5% Notes, we are required to comply with various restrictive covenants, including meeting certain reporting requirements, such as the preparation and delivery of audited consolidated financial statements, and restrictions on investments. As of December 31, 2015, we were in compliance with all of such covenants. In addition, we are required to maintain collateral which secures the 5% Notes in an amount equal to 200% of the principal amount of and accrued and unpaid interest on the outstanding notes. The outstanding principal and accrued interest do not mandatorily convert into common stock in the event of an initial public offering. At the election of the investors, the accrued interest and the unpaid principal can be converted into common stock at any time following an initial public offering with gross proceeds of at least $150.0 million (Qualified IPO) and prior to the maturity date. Following the Qualified IPO, the outstanding amount of the 5% Notes will be convertible into shares of common stock at a conversion price per share equal to the lower of $30.91 and 90% of the offering price of our common stock sold in this offering. These notes are also convertible upon a change of control prior to a Qualified IPO. Under certain circumstances, the notes are also redeemable at our option, in whole or in part, in connection with a change of control or if our common stock trades at a price equal to at least 150% of the public offering price per share for this offering for a period of 20 trading days during a period of 30 consecutive trading days at a redemption price equal to 100% of the principal amount of the notes plus accrued but unpaid interest. In January 2016, we issued an additional $25.0 million aggregate principal amount of these notes. In addition, in connection with the issuance of the these additional notes, we agreed to issue to certain purchasers of the notes, upon the occurrence of certain conditions, warrants to

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purchase up to a maximum of 469,333 shares of our common stock at an exercise price of $0.01 per share. The warrants will automatically be deemed exercised pursuant to their terms immediately prior to the completion of this offering.

PPA Entities’ Indebtedness

Bloom Electrons, our PPA financing program, is financed via special purpose investment entities (PPA entities). These entities are financed by third-party investors and Bloom. The capitalization of a PPA entity is generally comprised of equity investors, debt providers and Bloom, as a minority shareholder (generally less than 10% of the capital stock). The debt that is invested into the PPA entities is non-recourse to Bloom.

Our PPA entities have available lines of credit with a financial institution that allow them to borrow funds for purchase and construction of equipment, additional working capital, and general corporate purposes. These credit facilities are secured by certain of the PPA entities’ assets and subject to certain guaranties by Bloom.

On March 20, 2013, Diamond State Generation Partners, LLC (PPA Company II) entered into an agreement to refinance an existing loan. The total amount of the loan was $144.8 million, which included $28.8 million to repay outstanding principal of existing debt, $21.7 million for debt service reserves and transaction costs, and $94.3 million to fund the remaining system purchases. The loan is a fixed rate term loan that bears an annual interest rate of 5.22% payable quarterly. The loan has a fixed amortization schedule of the principal, beginning March 30, 2014, which requires repayment in full by March 30, 2025. The loan is also non-recourse and secured by all of the assets of PPA Company II. As of December 31, 2015, the debt outstanding was $119.1 million. Under the terms of this credit agreement, PPA Company II is required to comply with various covenants including restrictions on indebtedness, and must also maintain a debt service coverage ratio, as defined in the loan agreement, of at least 1.25:1.00 at the end of each fiscal quarter in order to make any distributions or pay any dividends. As of December 31, 2015, PPA Company II was in compliance with all of the covenants.

In December 2012, 2012 ESA Project Company, LLC (PPA Company IIIa) entered into a $46.8 million credit agreement to help fund the purchase and installation of our Energy Servers. The loan requires quarterly payments, is due in September 2028, and bears a fixed interest rate of 7.5% payable quarterly. The loan is secured by PPA Company IIIa’s machinery and equipment, account receivables, inventory and other assets, as well as the 100% equity interest in PPA Company IIIa held by 2012 V PPA Holdco, LLC. As of December 31, 2015, the debt outstanding was $43.8 million. Under the terms of this credit agreement, PPA Company IIIa is required to comply with various covenants, including meeting certain reporting requirements, such as the preparation and delivery of audited consolidated financial statements, and restrictions on indebtedness. PPA Company IIIa must also maintain a debt service coverage ratio, as defined in the credit agreement, of at least 1.10:1.00 at the end of each fiscal quarter in order to make any distributions or pay any dividends. As of December 31, 2015, PPA Company IIIa was in compliance with all of the covenants.

In September 2013, 2013B ESA Project Company, LLC (PPA Company IIIb) entered into a credit agreement to help fund the purchase and installation of our Energy Servers. In accordance with that agreement, PPA Company IIIb issued floating rate debt based on an annual LIBOR rate, plus a margin of 5.2%, paid quarterly. The debt requires quarterly principal payments and is due in October 2020. The weighted average interest rate of these borrowings was 5.5% and 5.6% for the years ended December 31, 2014 and 2015, respectively. The aggregate amount of the debt facility is $32.5 million, which includes $1.45 million to be placed in a debt service reserve account. The loan is secured by PPA Company IIIb’s machinery and equipment, account receivables, inventory and other assets, as well as the 100% equity interest in PPA Company IIIb held by 2013 ESA Holdco, LLC. As of December 31, 2015, the debt outstanding was $27.7 million. Under the terms of this credit agreement, PPA Company IIIb is required to comply with various covenants, including meeting certain reporting requirements, such as the preparation and delivery of audited consolidated financial statements, and restrictions on indebtedness. In addition, PPA Company IIIb must also maintain a historical debt service coverage ratio, as defined in the credit agreement, of 1.25:1.00, and a prospective debt service coverage ratio, as

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defined in the credit agreement, of 1.25:1:00 at the end of each fiscal quarter in order to make any distributions or pay any dividends. As of December 31, 2015, PPA Company IIIb was in compliance with all of the covenants.

In July 2014, 2014 ESA Project Company, LLC (PPA Company IV) issued senior secured notes (PPA IV Notes) amounting to $99.0 million to third parties to help fund the purchase and installation of our Energy Servers. The PPA IV Notes bear a fixed annual interest rate of 6.1%, payable quarterly. The principal amount of the PPA IV Notes is payable quarterly starting in December 2015 and ending in March 2030. The PPA IV Notes are secured by all the assets of the PPA Company IV. As of December 31, 2015, the aggregate balance outstanding under the PPA IV Notes was $98.9 million. Under the terms of the note purchase agreement, PPA Company IV is required to comply with various covenants, including meeting certain reporting requirements, such as the preparation and delivery of audited consolidated financial statements, and restrictions on indebtedness. In addition, PPA Company IV must also maintain a debt service coverage ratio, as defined in the loan agreement, of at least 1.15:1.00 at the end of each fiscal quarter in order to make any distributions or pay any dividends. As of December 31, 2015, PPA Company IV was in compliance with all of the covenants.

In June 2015, 2015 ESA Project Company, LLC (PPA Company V) entered into a $131.2 million credit agreement to help fund the purchase and installation of our Energy Servers. PPA Company V has issued floating rate debt with an interest rate based on LIBOR plus an applicable margin over LIBOR. The applicable margins used for calculating interest expense are 2.125% for the loan time period prior to the term conversion date; 2.25% for years 1-3 following the term conversion date and 2.5% for after Year 3 following the term conversion date. Interest is payable monthly. The weighted average interest rate of borrowings was 2.4% for the year ended December 31, 2015. The loan requires quarterly principal payments beginning in March 2017 and is due in December 2021. The loan is secured by PPA Company V’s machinery and equipment, account receivables, inventory and other assets, as well as the 100% equity interest in PPA Company V held by 2015 ESA Holdco, LLC. As of December 31, 2015, the debt outstanding was $57.7 million. Under the terms of this credit agreement, PPA Company V is required to comply with various covenants, including meeting certain reporting requirements, such as the preparation and delivery of audited consolidated financial statements, and restrictions on indebtedness, and must also maintain a debt service coverage ratio, as defined in the credit agreement, of at least 1.15:1.00 at the end of each fiscal quarter in order to make any distributions or pay any dividends. As of December 31, 2015, PPA Company V was in compliance with all of the covenants.

Cash Flows

The following table summarizes our cash flows for the periods indicated (in thousands):

	Years Ended December 31,
	2014			2015
	(in thousands)
Net cash provided by (used in):
Operating activities	$	(281,109	)	$	(309,691	)
Investing activities		(95,407	)		49,494
Financing activities		212,181			288,199
Net change in cash and cash equivalents	$	(164,335	)	$	28,002

Operating Activities

Cash provided by (used in) operating activities does not reflect the cash payments from our PPA entities for the Energy Servers at the time of acceptance. These cash receipts are generally included within financing activities, due to the consolidation of the PPA entities into our consolidated financial statements.

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In the year ended December 31, 2015, we used approximately $309.7 million in operating activities. This cash outflow primarily resulted from a net loss in the year of $341.0 million, reduced by non-cash items including the restructuring charge for the PPA I entity of $41.7 million, depreciation of approximately $35.6 million, stock-based compensation of approximately $20.9 million. The cash outflow also resulted from an increase in customer financing receivable for purchases of $119.1 million for purchases for Energy Servers by our PPA entities, an increase in accounts receivable of $11.3 million, an increase in deferred cost of revenue of $6.1 million. This cash outflow was partially offset by a decrease in inventory of $34.0 million, an increase in other current liabilities of $6.1 million, and increase in other long-term liabilities of $17.5 million, and an increase in deferred revenue and customer deposits of approximately $16.6 million relating to upfront milestone payments received from customers.

In the year ended December 31, 2014, we used approximately $281.1 million in operating activities. This cash outflow primarily resulted from a net loss in the year of $217.6 million, reduced by non-cash items, including depreciation and amortization of approximately $30.1 million, stock-based compensation of approximately $18.2 million, and by an increase in deferred cost of revenue of $67.6 million. The cash outflow also resulted from an increase in customer financing receivable of $44.3 million for purchases of Energy Servers by our PPA entities, an increase in inventories of $10.9 million, and a decrease in other accrued liabilities of $4.4 million. This cash outflow was partially offset by an increase in deferred revenue and customer deposits of approximately $61.0 million relating to upfront milestone payments received from customers.

Investing Activities

Our investing activities consist primarily of capital expenditures. Because we are required to consolidate the PPA entities into our consolidated financial statements, these capital expenditures also include the investment of the PPA entities’ purchase of Energy Servers from us to deploy into their customer base.

In the year ended December 31, 2015, we generated approximately $49.5 million in investing activities. We used $6.3 million for the acquisition of factory machinery and equipment, which was offset by an increase in restricted cash of $55.8 million used to purchase Energy Servers by our PPA entities.

In the year ended December 31, 2014, we used approximately $95.4 million in investing activities. We used $81.0 million for the manufacture and installation of Energy Servers that are under operating leases with our PPA entities. We also used $14.4 million for the acquisition of factory machinery and equipment.

Financing Activities

In the year ended December 31, 2015, we generated approximately $288.2 million from financing activities. We generated approximately $77.1 million of this amount from proceeds from financings in our PPA entities, offset by distributions paid to our PPA tax equity investors of approximately $11.0 million. We received net proceeds of approximately $285.8 million from the issuance of debt and derivatives, offset by repayments of $57.9 million of long-term debt and a revolving line of credit.

In the year ended December 31, 2014, we generated approximately $212.2 million from financing activities. We generated approximately $27.4 million of this amount from proceeds from noncontrolling interests of the PPA entities, offset by distributions paid to noncontrolling interests of approximately $76.6 million. We also received approximately $54.6 million from U.S. Treasury Department grants associated with energy systems that we had leased to customers through our PPA entities. We received an additional $253.1 million from long-term debt and from our revolving line of credit and repaid $28.8 million of long-term debt and revolving line of credit.

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Contractual Obligations and Other Commitments

The following table summarizes our non-cancellable contractual obligations and the debt of our consolidated PPA entities that is non-recourse to Bloom as of December 31, 2015:

	Payments Due By Period
	Total		Less than 1 Year		1-3 Years		3-5 Years		More than 5 Years
	(in thousands)
Contractual Obligations or Other Commitments:
Recourse debt	$	379,632	$	4,502	$	291,865	$	83,265	$	—
Non-recourse debt		347,188		31,505		33,441		43,042		239,200
Operating leases and other		14,004		4,647		6,562		2,795		—
Sale-Leaseback transactions		15,888		1,438		2,971		3,104		8,375
Total	$	756,712	$	42,092	$	334,839	$	132,206	$	247,575

Included within the long-term debt balances above is $208.6 million in recourse debt in the form of 8% Notes that will convert into shares of common stock automatically at the completion of this offering. Further, $160.3 million of the remaining long-term recourse debt is in the form of 5% Notes, net of the $64.7 million adjustment to fair value of the underlying derivative instrument and net of a discount of $6.3 million, which will be convertible into equity as described above. Subsequent to December 31, 2015, we issued an additional $25.0 million principal amount of 5% Notes pursuant to a certain note purchase agreement with a certain accredited investor.

In March 2012, we entered into an agreement with the Delaware Economic Development Authority to provide a grant of $16.5 million to us as an incentive to establish a new manufacturing facility in Delaware and to provide employment for full time workers at the facility over a certain period of time. We have so far received $12.0 million of the grant which is contingent upon our meeting certain milestones related to the construction of the manufacturing facility and the employment of full time workers at the facility, which we are currently not meeting, through September 30, 2023. In the event that we do not meet the milestones, we may have to repay the Delaware Economic Development Authority, including up to $3.8 million on September 30, 2017, up to an additional $5.0 million on September 30, 2021 and up to an additional $2.5 million on September 30, 2023. As of December 31, 2015, we had accrued $12.0 million in other long-term liabilities related to this agreement (see Note 11, Other Long-Term Liabilities, to our consolidated financial statements).

Our PPA entities are structured in a manner such that other than the amount of any equity investment we have made, we generally do not have any further liability for the debts or other obligations of the PPA entities. In some cases, we were required to guarantee certain obligations of the PPA entities, such as the performance and operating efficiency warranties of the Energy Servers, certain representations and warranties made to the other investors in the PPA entity, and the performance of certain covenants. As a result, we could be obligated to make payments to these PPA entities or the other investors in the event of a breach of these representations, warranties or covenants. As of December 31, 2015, two of our PPA entities, PPA Company IIIb and PPA Company V, had $27.7 million and $57.7 million in principal indebtedness outstanding, respectively. PPA Company IIIb’s indebtedness matures in October 2020, although it has power purchase agreements with terms through 2030. PPA Company V’s indebtedness matures on the earlier to occur of December 31, 2021 or the fifth anniversary of the term conversion date, which had not yet occurred as of December 31, 2015, although PPA Company V has power purchase agreements with terms through 2031. Accordingly, this indebtedness will need to be refinanced at its maturity date. If we are unable to refinance this indebtedness on similar or more favorable economic terms, the projects could face increased costs than originally anticipated, which could result in us choosing to make additional payments to the entity to cover these additional costs. If we are unable to repay or refinance this indebtedness, the lenders could declare an event of default under the indebtedness.

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Off-Balance Sheet Arrangements

We include in our consolidated financial statements all assets and liabilities and results of operations of our PPA entities that we have entered into and have substantial control. We have not entered into any other transactions that have generated relationships with unconsolidated entities or financial partnerships or special purpose entities. Accordingly, we do not have any off-balance sheet arrangements.

Quantitative and Qualitative Disclosures about Market Risk

We are exposed to certain market risks as part of our ongoing business operations, primarily exposure to changes in interest rates and fuel prices. Our sales contracts are primarily denominated in U.S. dollars, and therefore, substantially all of our revenue is not subject to foreign currency risk. In addition, an increasing portion of our operating expenses is incurred outside the United States, is denominated in foreign currencies, and is subject to fluctuations due to changes in foreign currency exchange rates. If we are not able to successfully hedge against the risks associated with currency fluctuations, our financial condition and operating results could be adversely affected.

Interest Rates

Our cash and cash equivalents are invested in money market funds. We believe that we do not have any material exposure to changes in fair value as a result of changes in interest rates due to the short-term nature of our cash equivalents. We have not been exposed to material risks on investment income due to changes in interest rates given the low levels of interest being earned on money market funds.

We are exposed to interest rate risk related to our indebtedness that bears interest at floating rates based on LIBOR plus a specified margin. We generally hedge interest rate risks of floating-rate debt with interest rate swaps. Changes in interest rates are generally offset by the related hedging instruments. For fixed-rate debt, interest rate changes do not affect our earnings or cash flows. We do not believe that an increase or decrease in interest rates of 10% would have a material effect on our operating results or financial condition.

Commodity Price Risk

We are subject to commodity price risk arising from price movements for natural gas that we supply to customers under certain agreements to operate our Energy Servers. We manage this risk by entering into forward contracts as economic hedges of commodity price risk to control the cost of natural gas. As a result, we do not believe that a 10% change in commodity prices would have a material effect on our operating results or financial condition.

Critical Accounting Policies and Estimates

We prepare our consolidated financial statements in accordance with U.S. generally accepted accounting principles. The preparation of these consolidated financial statements requires us to make estimates and judgments that affect the reported amounts of assets, liabilities, revenue, costs and expenses and related disclosures. We base our estimates on historical experience and on various other assumptions that we believe to be reasonable under the circumstances. We evaluate our estimates and assumptions on an ongoing basis. Our future financial statements will be affected to the extent that our actual results materially differ from these estimates.

We believe that of our significant accounting policies, which are described in Note 2 to our consolidated financial statements, the following accounting policies involve a greater degree of judgment and complexity. Accordingly, these are the policies we believe are the most critical to aid in fully understanding and evaluating our consolidated financial condition and results of operations.

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Basis of Presentation and Principles of Consolidation

The consolidated financial statements have been prepared in conformity with U.S. generally accepted accounting principles (GAAP) and reflect our accounts and operations and those of our subsidiaries in which we have a controlling financial interest. We use a qualitative approach in assessing the consolidation requirement for our PPA entities. This approach focuses on determining whether we have the power to direct the activities of the PPA entities that most significantly affect the PPA entities’ economic performance and whether we have the obligation to absorb losses, or the right to receive benefits, that could potentially be significant to the PPAs. For all periods presented, we have determined that we are the primary beneficiary in all of our operational PPA entities because we have a majority of the voting interests of the entities, have the power to direct the activities of the PPA entities and bear the obligation to absorb losses, and the right to receive benefits that could be significant. For additional information, see Note 13, Power Purchase Agreement Programs, to our consolidated financial statements included in this prospectus. We evaluate our relationships with the PPA entities on an ongoing basis to ensure that we continue to be the primary beneficiary. All intercompany transactions and balances have been eliminated in consolidation. Certain prior period balances have been reclassified to conform to the current period presentation.

The preparation of consolidated financial statements in conformity with U.S. generally accepted accounting principles requires our management to make estimates and assumptions that affect the amounts reported in the consolidated financial statements and the accompanying notes. Significant estimates include assumptions used to compute the best estimate of selling-prices (BESP), fair value of lease and non-lease components, such as estimated output, efficiency and residual value of the Energy Servers, estimates for inventory write-downs, estimates for future cash flows and economic useful lives of property, plant and equipment, other long-term assets, valuation of certain accrued liabilities, such as derivative valuations, accrued warranty and extended maintenance and estimates for recapture of U.S. Treasury grants, income taxes and deferred tax asset valuation allowances, warrant liabilities, stock-based compensation costs, and allocation of profit and losses to the noncontrolling interests. Actual results could differ materially from these estimates under different assumptions and conditions.

Revenue Recognition

We primarily earn revenue from the sale and installation of our Energy Servers to direct and lease customers, by providing services under our operations and maintenance services contracts, and by selling electricity to customers under PPA agreements. We offer our customers several ways to finance their purchase of an Energy Server. Customers may choose to purchase our Energy Servers outright. Customers may also lease our Energy Servers through one of our financing partners as a traditional lease. Finally, customers may purchase electricity through our PPA financing arrangements.

We sell our Energy Servers directly to customers (direct sales) or enter into long term PPAs with customers, in which the customer is required to purchase 100% of the electricity produced by the Energy Servers at agreed-upon rates.

Direct Sales

We recognize revenue from contracts with customers for the sales of products and services included within these contracts in accordance with ASC 605-25 (revenue recognition for multiple-element arrangements).

Revenue from the sale and installation of Energy Servers to direct customers is recognized when all of the following criteria are met:

• Persuasive Evidence of an Arrangement Exists. We rely upon non-cancelable sales agreements and purchase orders to determine the existence of an arrangement.

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• Delivery and Acceptance has Occurred. We use shipping documents and confirmation from our installations team that the deployed systems are running at full power to verify delivery and acceptance.

• The Fee is Fixed or Determinable. We assess whether the fee is fixed or determinable based on the payment terms associated with the transaction.

• Collectability is Reasonably Assured. We assess collectability based on the customer’s credit analysis and payment history.

Most of our arrangements, other than renewals of maintenance, are multiple-element arrangements with a combination of Energy Servers, installation, and maintenance services. Products and services generally qualify as separate units of accounting. For multiple-element arrangements, we allocate revenue to each unit of accounting based on an estimated selling price at the arrangement inception. The estimated selling price for each element is based upon the following hierarchy: vendor-specific objective evidence (VSOE) of selling price, if available; third-party evidence (TPE) of selling price, if VSOE of selling price is not available; or best estimate of selling price (BESP), if neither VSOE of selling price nor TPE of selling price are available. The total arrangement consideration is allocated to each separate unit of accounting using the relative estimated selling prices of each unit based on the aforementioned selling price hierarchy. We limit the amount of revenue recognized for delivered elements to an amount that is not contingent upon future delivery of additional products or services or meeting any specified performance conditions.

To determine the estimated selling price in multiple-element arrangements, we establish VSOE of selling price using the prices charged for a deliverable when sold separately and, for maintenance, based on the renewal rates and discounts offered to customers. If VSOE of selling price cannot be established for a deliverable, we establish TPE of selling price by evaluating similar competitor products or services in standalone arrangements with similarly situated customers. However, as our products contain a significant element of proprietary technology and offer substantially different features and functionality from our competitors, we are unable to obtain comparable pricing of our competitors’ products with similar functionality on a standalone basis. Therefore, we have not been able to obtain reliable evidence of TPE of selling price. If neither VSOE nor TPE of selling price can be established for a deliverable, we establish BESP primarily based on historical transaction pricing. Historical transactions are segregated based on our pricing model and our go-to-market strategy, which include factors such as the customer’s historical purchase volumes, the geographies in which our products and services were sold (domestic or international), and offering type (products or services). In analyzing historical transaction pricing, we evaluate whether a majority of the prices charged for a product, as represented by a percentage of list price, fall within a reasonable range. To further support the best estimate of selling price as determined by the historical transaction pricing or when such information is unavailable, such as when there are limited sales of a new product, we consider the same factors we have established through our pricing model and go-to-market strategy. The determination of BESP is made through consultation with and approval by our management. In determining BESP, we rely on certain assumptions and apply significant judgment. As our business offerings evolve over time, we may be required to modify our estimated selling prices in subsequent periods, and our revenue could be adversely affected.

We do not offer extended payment terms or rights of return for our products. Upon shipment of the product, we defer the product’s revenue until the acceptance criteria have been met. Such amounts are recorded within deferred revenue in the consolidated balance sheets. The related cost of such product is also deferred as a component of deferred cost in the consolidated balance sheets until customer acceptance. Prior to shipment of the product, any prepayment made by the customer is recorded as customer deposits. Customer deposits were $11.3 million and $21.1 million as of December 31, 2014 and 2015, respectively, and were included in deferred revenue and customer deposits in the consolidated balance sheets.

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Operations and Maintenance Services

We typically provide a standard one-year warranty against manufacturing or performance defects and a performance guarantee to our direct sales customers. The performance guarantee has not resulted in any material obligations to date. We also sell to these customers operations and maintenance services that effectively extend the standard warranty coverage under maintenance agreements for up to twenty additional years. These customers generally have an option to renew or cancel the operations and maintenance services on an annual basis. Revenue is recognized from such operations and maintenance services ratably over the term of the service (or annual renewal period). For all contracts that met the definition of ASC 605-20, if we expect to incur a loss under the operations and maintenance services agreements with our direct sales customers in the annual renewal period, such loss is recorded at the inception of each service period that the customer chooses to renew. As of the beginning of 2014, our service contracts followed ASC 605-25 and as such, there were no losses accrued in the years ended December 31, 2014 and 2015.

PPA Sales

Sales-type Leases. Certain arrangements entered into by Bloom Energy 2009 PPA Project Company, LLC (PPA I), PPA Company IIIa and PPA Company IIIb, our affiliates, qualify as sales-type leases in accordance with Financial Accounting Standards Board Accounting Standards Codification Topic 840, Leases (ASC 840). A sale is typically recognized when an Energy Server begins generating electricity and has been accepted. We are responsible for the installation, operation and maintenance of the Energy Servers at the customer’s sites, including running the Energy Servers during the term of the PPAs ranging from 10 to 21 years. The amount billed for the delivery of the electricity to PPA I customers primarily consists of returns of amounts financed, including interest revenue, service revenue and fuel revenue for certain arrangements.

The other elements included as part of recurring payments from customers are allocated to revenue using the relative fair value method to both the lease and non-lease elements, including service revenue, which is considered an executory cost, fuel revenue, and interest revenue. Revenue and costs related to such elements are generally recognized over the term of the PPA. The customer has the option to purchase the Energy Servers at the then fair market value at the end of the term of the PPA. Service revenue related to sales-type leases $10.3 million and $10.7 million for the years ended December 31, 2014 and 2015, respectively, is included in electricity revenue in the consolidated statements of operations. Fuel revenue of $5.3 million and $2.8 million for the years ended December 31, 2014 and 2015, respectively, is included in electricity revenue in the consolidated statements of operations. The interest component of the leased asset is deferred as unearned income and is recognized over the life of the lease term as a component of electricity revenue. Interest revenue of $2.9 million and $2.5 million for the years ended December 31, 2014, and 2015, respectively, is included in electricity revenue in the consolidated statements of operations. We make estimates and judgments about the present value of the minimum lease payments which are based on assumptions that are consistent with our plans and estimates. The amount of our minimum lease payments could be materially affected should the actual amounts differ from our estimates.

Product revenue associated with the sale of the Energy Servers under the PPAs that qualify as sales-type leases is recognized at the present value of the minimum lease payments, which approximate fair value, assuming all other conditions for revenue recognition noted above have also been met.

Operating Leases. PPA arrangements entered into by PPA Company II, PPA Company IIIa, PPA Company IIIb, PPA Company IV, and PPA Company V that are, in substance, leases but do not meet the criteria of sales-type leases or direct financing leases in accordance with ASC 840 are accounted for as operating leases. Revenue under these arrangements is recognized as electricity sales and provided to the customer at rates specified under the contracts. During the years ended December 31, 2014 and 2015, revenue from electricity sales amounted to $2.2 million and $12.7 million, respectively.

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Tariff Agreements. PPA Company II entered into an arrangement with Delmarva Power & Light Company (Delmarva), the PJM regional transmission organization (PJM), and the State of Delaware (Delaware or State), under which PPA Company II provides the energy generated from its Energy Servers to PJM, and receives a certain tariff as collected by Delmarva.

Revenue at the tariff rate is recognized as electricity sales as it is generated over the term of the tariff. Revenue relating to power generation at the Delmarva site of $36.7 million and $36.9 million for the years ended December 31, 2014 and 2015, respectively, is included in electricity sales in the consolidated statements of operations.

See Note 13, Power Purchase Agreement Programs, in our consolidated financial statements for further information.

Managed Services

We are a party to master lease agreements that provide for the sale of Energy Servers to third-parties and the simultaneous leaseback of the systems, which we then sublease to our customers through our managed services program. In sale-leaseback arrangements, we first determine whether the Energy Servers under the sale-leaseback arrangement are “integral equipment.” An Energy Server is determined to be integral equipment when the cost to remove the system from its existing location, including the shipping costs of the Energy Server at the new site, including any diminution in fair value, exceeds 10% of the fair value of the Energy Server at the time of its original installation.

As the Energy Servers are determined not to be integral equipment, we determine if the leaseback is classified as a capital lease or an operating lease. For leasebacks classified as capital leases, we initially record a capital lease asset and capital lease obligation in our consolidated balance sheet equal to the lower of the present value of our future minimum leaseback payments or the fair value of the Energy Servers. For capital leasebacks, we do not recognize any revenue but defer the gross profit comprising the net of the revenue and the associated cost of sale. For leasebacks classified as operating leases, we recognize a portion of the revenue and the associated cost of sale and defer the portion of revenue and cost of sale that represents the gross profit that is equal to the present value of the future minimum lease payments over the master leaseback term. For both capital and operating leasebacks, we record the deferred gross profit in our consolidated balance sheet as deferred income and amortize the deferred income over the leaseback term as a reduction to the leaseback rental expense included in operating leases.

Incentives and Grants

Self-Generation Incentive Program (SGIP)

Our PPA entities receive payments under the SGIP which is a program specific to the State of California that provides financial incentives for the installation of new, qualifying self-generation equipment that we own. The SGIP is considered government incentive receivables until received. For sales-type leases, the benefit of the SGIP is recorded as deferred revenue and is recognized as revenue when the Energy Server is accepted. For operating leases, the benefit of the SGIP grant is recorded as deferred revenue and is amortized on a straight-line basis over the PPA contract period. The SGIP issues 50% of the fully anticipated amount in the first year the equipment is placed into service. The remaining incentive is then paid based on the size of the equipment (i.e., nameplate kilowatt capacity) over the subsequent five years. The SGIP program will expire on January 1, 2021. In November 2015, the Energy Division staff of the California Public Utilities Commission (CPUC) proposed to modify the SGIP in a manner that may exclude our Energy Servers from the program. A final decision by CPUC has not yet been made.

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We received $1.3 million and $2.4 million of SGIP for the years ended December 31, 2014 and 2015, respectively. The SGIP has operational criteria primarily related to fuel mixture and minimum output for the first five years after the qualified equipment is placed in service. If the operational criteria are not fulfilled, it could result in a partial refund of incentives received. There were no reductions or refunds of SGIP during the years ended December 31, 2014 and 2015.

For certain PPA entities, we make SGIP reservations on behalf of the PPA entity. The PPA entity receives the SGIP incentives amounts directly from the program and, therefore, bears the risk of loss if these funds are not paid.

U.S. Treasury Grants

We are eligible for U.S. Treasury grants on eligible property as defined under Section 1603 of the American Recovery and Reinvestment Act of 2009. However, to be eligible for the U.S. Treasury grants, a fuel cell system must have commenced construction in 2011 either physically or through the occurrence of sufficient project costs. For fuel cell systems under PPA arrangements, U.S. Treasury grants are considered a component of minimum lease payments. For fuel cell systems deployed under tariff legislation, we record the fuel cell systems net of the U.S. Treasury grants. U.S. Treasury grant receivables are classified as other current assets in our consolidated balance sheets. For operating leases, the benefit of the U.S. Treasury grant is recorded as deferred revenue and is amortized on a straight-line basis over the PPA contract period. We placed in service the last property eligible for U.S. Treasury grants in November of 2013 and collected all of its outstanding remaining Treasury cash grants during 2014. In 2014, we received $54.6 million of U.S. Treasury grants and none was received in 2015.

The U.S. Treasury grant program has operational criteria for the first five years after the qualified equipment is placed in service. The criteria includes cash grant recapture provisions if the applicant disposes of the property to a disqualified person or the property ceases to qualify as a specified energy property. If the operational criteria are not fulfilled, it could result in a partial refund of incentives received. Due to the restructuring of our first PPA entity, as discussed in Note 14, PPA I Decommissioning, we accrued $10.0 million in estimated recapture refunds in 2015.

Investment Tax Credits (ITC)

Our fuel cell systems are eligible for federal investment tax credits, or ITCs, that accrue to eligible property under Internal Revenue Code Section 48. Under PPA arrangements, ITCs are primarily passed through to tax equity investors. Approximately 1% to 10% of the incentives are received by us, with the balance distributed to the remaining investors of the PPA entity. These incentives are accounted for under the flow-through method.

The ITC program has operational criteria for the first five years after the qualified equipment is placed in service. If the qualified energy property is disposed of, or otherwise ceases to be investment credit property before the close of the five year recapture period is fulfilled, it could result in a partial reduction of the incentives. No ITC recapture has occurred during the years ended December 31, 2014 and 2015.

Renewable Energy Credits (RECs)

RECs, which are tradeable energy credits that represent 1 megawatt hour of electricity generated from an eligible renewable energy resource generated in the U.S. are primarily ‘held for use’ and are presented as part of other current assets in the consolidated balance sheets until the RECs are sold and accounted for as revenue. We account for such RECs as output from the facility where they originate. We value these RECs at the lower of cost or market at the end of each reporting period.

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We also acquire RECs under stand-alone purchase agreements with third parties to satisfy REC obligations under certain power purchase agreements. Purchased RECs are recorded at cost and are presented as part of other current assets in the consolidated balance sheets. Costs of RECs purchased are expensed as our obligation to provide such RECs to customers occurs.

We estimate the number of excess RECs we will ultimately acquire under the noncancelable purchase contracts over the number required to satisfy our obligations to our customers. We record a purchase commitment loss if the fair value of RECs is less than the fixed purchase price amount. The purchase commitment loss is recorded on the consolidated balance sheets as a component of other long-term liabilities.

Customer Financing Receivables

Leases are classified as either operating or sales-type leases in accordance with the relevant accounting guidelines. Customer financing receivables are generated by Energy Servers leased to PPA entities’ customers in leasing arrangements that qualify as sales-type leases. Financing receivables represents the gross minimum lease payments to be received from customers and the system’s estimated residual value, net of unearned income and allowance for estimated losses. Initial direct costs for sales-type leases are recognized as cost of revenue when the Energy Servers are placed in service.

We review our customer financing receivables by aging category to identify significant customer balances with known disputes or collection issues. In determining the allowance, we make judgments about the creditworthiness of a majority of our customers based on ongoing credit evaluations. We also consider our historical level of credit losses and current economic trends that might impact the level of future credit losses. We write off customer financing receivables when they are deemed uncollectible. We have not had to maintain an allowance for doubtful accounts to reserve for potentially uncollectible customer financing receivables as historically, all of our receivables have been paid and we expect our current receivables on the consolidated balance sheets to be paid in full. For additional information, see Note 14 to our consolidated financial statements, PPA I Decommissioning.

Accounts Receivable

Accounts receivable primarily represents trade receivables from sales to customers recorded at net realizable value. As we do for our customer financing receivables, we review our accounts receivable by aging category to identify significant customer balances with known disputes or collection issues. In determining the allowance, we make judgments about the creditworthiness of a majority of its customers based on ongoing credit evaluations. We also consider our historical level of credit losses and current economic trends that might impact the level of future credit losses. We write off accounts receivable when they are deemed uncollectible. We have not had to maintain an allowance for doubtful accounts to reserve for potentially uncollectible accounts receivable as historically, all of our receivables have been paid and we expect our current receivables on the consolidated balance sheets to be paid in full.

Inventories

Inventories consist principally of raw materials, work-in-process and finished goods and are stated on a first-in, first-out basis at the lower of cost or market value.

We record inventory excess and obsolescence provisions for estimated obsolete or unsellable inventory equal to the difference between the cost of inventory and estimated net realizable value based upon assumptions about market conditions and future demand for product, including product needed to fulfill our warranty obligations. If actual future demand for our products is less than currently forecasted, additional inventory provisions may be required. Once a provision is recorded, it is maintained until the product to which it relates to is sold or otherwise disposed of.

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Long-Lived Assets

Our long-lived assets include property, plant and equipment. The carrying amounts of our long-lived assets are periodically reviewed for impairment whenever events or changes in circumstances indicate that the carrying value of these assets may not be recoverable or that the useful life is shorter than originally estimated. Factors that we consider in deciding when to perform an impairment review would include significant negative industry or economic trends and significant changes or planned changes in our use of the assets. Recoverability of these assets is measured by comparison of the carrying amount of each asset to the future undiscounted cash flows the asset is expected to generate over its remaining life. If the asset is considered to be impaired, the amount of any impairment is measured as the difference between the carrying value and the fair value of the impaired asset and we would recognize an impairment loss. If the useful life is shorter than originally estimated, we amortize the remaining carrying value over the new shorter useful life. No material impairment of any long-lived assets was identified in the years ended December 31, 2014 or 2015. When assets are retired or disposed of, the assets and related accumulated depreciation and amortization are removed from our general ledger, and the resulting gain or loss is reflected in the consolidated statements of operations.

Warranty Costs

We generally warrant our products sold to our direct customers for one year following the date of acceptance of the products. Customers then have the option to purchase operations and maintenance services agreements for future one-year periods. The warranty covers defects in materials and workmanship under normal use and service conditions, and against manufacturing or performance defects. Our potential liabilities are generally in the form of product replacement, repair or reimbursement for higher customer electricity costs over that one-year warranty period, should the units not work for extended periods of time (also refer to Note 17 to our consolidated financial statements, Commitments and Contingencies). Warranty expenses and reserves are based on our best estimate of such costs during the one-year period and are recognized as a cost of revenue. To estimate the warranty costs, we continuously monitor product returns for warranty failures and maintain the reserve for the related warranty expense based on various factors including historical warranty claims, field monitoring, and results of lab testing. Given our limited operating experience, particularly for newer product designs, actual results could vary from initial estimates. The warranty liability was $5.3 million and $8.7 million as of December 31, 2014 and 2015, respectively, and is classified within accrued warranty in the consolidated balance sheets.

Stock-Based Compensation

We account for stock options and restricted stock units (RSUs) awarded to employees and nonemployee directors under the provisions of Financial Accounting Standards Board (FASB) Accounting Standards Codification Topic 718, “Compensation Stock Compensation,” (ASC 718) using the Black-Scholes valuation model to estimate fair value. The Black-Scholes valuation model requires us to make estimates and assumptions regarding the underlying stock’s fair value. Determining the fair value of stock-based awards at the grant date requires judgment. The determination of the grant date fair value of options using the Black-Scholes model is affected by our estimated common stock fair value as well as assumptions regarding a number of other complex and subjective variables. These variables include the fair value of our common stock, our expected stock price volatility over the expected term of the options, risk-free interest rates and expected dividends, that are estimated as follows:

• Fair Value of Common Stock. Our board of directors considers numerous objective and subjective factors to determine the fair value of our common stock at each meeting at which awards were approved, as discussed in “Common and Redeemable Preferred Stock Valuations” below.

• Volatility. We determine the price volatility factor based on the historical volatilities of our peer group as we do not have a sufficient trading history for our common stock. Industry peers consist of several public companies in the technology industry that are similar to us in size, stage of life cycle, and

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financial leverage. We intend to continue to consistently apply this process using the same or similar public companies until a sufficient amount of historical information regarding the volatility of our own common stock share price becomes available, or unless circumstances change such that the identified companies are no longer similar to us, in which case, more suitable companies whose share prices are publicly available would be utilized in the calculation.

• Expected Term. The expected term represents the period that our stock-based awards are expected to be outstanding. We determined the expected term assumption based on our historical exercise behavior combined with estimates of the post-vesting holding period.

• Risk-Free Interest Rate. We base the risk-free interest rate used in the Black-Scholes valuation model on the implied yield available on U.S. Treasury zero-coupon issues with an equivalent remaining term of the options for each option group.

• Dividend Yield. The expected dividend assumption is based on our current expectations about our anticipated dividend policy.

In developing estimates used to calculate assumptions, we establish the expected term for employee options and RSUs, as well as expected forfeiture rates, based on the historical settlement experience and after giving consideration to vesting schedules. Forfeitures are estimated at the time of grant and revised, if necessary, in subsequent periods if actual forfeitures differ from initial estimates. Stock-based compensation expense is recorded net of estimated forfeitures such that expense is recorded only for those stock-based awards that are expected to vest. Previously recognized expense is reversed for the portion of awards forfeited prior to vesting as and when forfeitures occurred. We typically record stock-based compensation expense under the straight-line attribution method over the vest term, which is generally five years and record stock-based compensation expense for performance-based awards using the graded-vesting method. Stock-based compensation expense is recorded in the consolidated statements of operations based on the employees’ respective function.

Stock-based compensation cost for RSUs is measured based on the fair value of the underlying shares on the date of grant. RSUs are subject to a time-based vesting condition and a performance-based vesting condition, both of which must be satisfied before the RSUs are vested and settled for shares of common stock. The performance-based condition is tied to a liquidity event, such as a sale event or the completion of our initial public offering. The time-based condition ranges between six months to one year from the end of the lock-up period post a liquidity event. No expense related to these awards will be recognized unless the performance condition is satisfied.

Compensation expense for equity instruments granted to non-employees is measured on the date of performance at the fair value of the consideration received or the fair value of the equity instruments issued, whichever is more reliably measured. Compensation expense for equity instruments granted to non-employees is periodically remeasured as the underlying instruments vest. The fair value of the equity instruments is charged to earnings over the term of the service agreement.

We record deferred tax assets for awards that result in deductions on our income tax returns, unless we cannot realize the deduction (i.e., we are in a net operating loss (NOL) position), based on the amount of compensation cost recognized and our statutory tax rate. Differences between the deferred tax assets recognized for financial reporting purposes and the actual tax deduction reported on our income tax return are recorded in additional paid-in capital if the tax deduction exceeds the deferred tax asset (excess tax benefit) or in the consolidated statements of operations if the deferred tax asset exceeds the tax deduction and no additional excess tax benefit exists from previous awards. No tax benefit or expense for stock-based compensation has been recorded during the years ended December 31, 2014 and 2015 since we remain in an NOL position.

During the years ended December 31, 2014, and 2015, we recognized $18.4 million and $19.9 million of employee stock-based compensation expense, respectively. The compensation expense is allocated on a

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departmental basis, based on the classification of the option holder. No income tax benefits have been recognized in the consolidated statement of operations for stock-based compensation arrangements, and no stock-based compensation costs have been capitalized in the years ended December 31, 2014 and 2015.

The following table summarizes the assumptions relating to our stock options and RSUs as follows:

	Years Ended December 31,
	2014	2015
Risk-free interest rate	1.45% - 2.06%	1.58% - 1.91%
Expected term (in years)	4.00 - 5.89	5.49 - 6.33
Expected dividend yield	—	—
Expected volatility	68.8% - 71.9%	58.7% - 65.6%
Weighted average grant date fair value	$12.60	$11.47

Refer to Note 24, Stock Option Plan, of our consolidated financial statements for further discussion of our stock-based compensation arrangements.

Common and Redeemable Preferred Stock Valuations

Prior to this offering, the fair value of the common and redeemable preferred stock underlying our stock options, RSUs, and warrants was determined by our board of directors. The valuations of our common and redeemable preferred stock were determined in accordance with the guidelines outlined in the American Institute of Certified Public Accountants Accounting and Valuation Guide, Valuation of Privately-Held-Company Equity Securities Issued as Compensation. The assumptions used in the valuation models were based on future expectations combined with management judgment. Members of our board of directors and management team have extensive business, financial, and investing experience. Because there had been no public market for our common or redeemable preferred stock, the board of directors with input from management exercised significant judgment and considered numerous objective and subjective factors to determine the fair value of common and redeemable preferred stock as of the date of each option, RSU, and warrant, including the following factors:

• contemporaneous valuations performed by unrelated third-party specialists;

• the prices, rights, preferences, and privileges of our convertible preferred stock relative to those of our common stock;

• our actual operating and financial performance;

• our current business conditions and projections;

• secondary transactions;

• our hiring of key personnel and the experience of our management;

• our history and the timing of the introduction of new products and services;

• our stage of development;

• our likelihood of achieving a liquidity event, such as an initial public offering or a merger or acquisition of our company, given prevailing market conditions;

• the lack of marketability involving securities in a private company;

• the market performance of comparable publicly traded companies; and

• the U.S. and global capital markets conditions.

In valuing our common and redeemable preferred stock, our board of directors utilized the probability-weighted expected return method, or PWERM. Under the PWERM, the value of the common and redeemable

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preferred stock is estimated based on analysis of future values for the common and redeemable preferred stock assuming relevant events and expected future exit scenarios. The exit scenarios consisted of initial public offering scenarios and a merger and acquisition scenario. The enterprise value derived under each scenario was based primarily on the income approach and our probability weighted expected exit values under each scenario. Additionally, we applied a discount for lack of marketability. Further, we applied certain weights to the PWERM conclusion described above as well as to the weighted average common share price from secondary transactions occurring in the period leading up to the valuation date to conclude the fair value of the common and redeemable preferred stock.

Following this offering, valuation models, including the estimates and assumptions used in such models, will not be necessary to determine the fair value of our common and redeemable preferred stock, as shares of our common stock will be traded in the public market and the redeemable preferred stock will be redeemed to common stock.

Based on an assumed initial public offering price of $        per share, which is the midpoint of the price range set forth on the cover page of this prospectus, the aggregate intrinsic value of stock options, RSUs, and warrants outstanding as of December 31, 2015 was $        million, with $        related to vested stock options.

Income Taxes

We account for income taxes using the liability method under Financial Accounting Standards Board Accounting Standards Codification Topic 740, “Income Taxes,” (ASC 740). Under this method, deferred tax assets and liabilities are determined based on net operating loss carryforwards, research and development credit carryforwards, and temporary differences resulting from the different treatment of items for tax and financial reporting purposes. Deferred items are measured using the enacted tax rates and laws that are expected to be in effect when the differences reverse. Additionally, we must assess the likelihood that deferred tax assets will be recovered as deductions from future taxable income. We have provided a full valuation allowance on our deferred tax assets because we believe it is more likely than not that its deferred tax assets will not be realized.

We record a liability for the difference between the benefit recognized and measured pursuant to ASC 740-10 and the tax position taken or expected to be taken on our tax return. To the extent that the assessment of such tax positions change, the change in estimate is recorded in the period in which the determination is made. We establish reserves for tax-related uncertainties based on estimates of whether, and the extent to which, additional taxes will be due. These reserves are established when we believe that certain positions might be challenged despite our belief that the tax return positions are fully supportable. The reserves are adjusted in light of changing facts and circumstances, such as the outcome of a tax audit. The provision for income taxes includes the impact of reserve provisions and changes to reserves that are considered appropriate, as well as applicable interest and penalties accrued on these reserve positions.

The valuation allowance is determined in accordance with the provisions of ASC 740, which requires an assessment of both negative and positive evidence when measuring the need for a valuation allowance. We make estimates and judgments about our future taxable income that are based on assumptions that are consistent with our plans and estimates. The amount of our valuation allowance could be materially affected should the actual amounts differ from our estimates. Any adjustment to the deferred tax asset valuation allowance would be recorded in the statement of operations in the periods when the adjustment is determined to be required.

Recent Accounting Pronouncements

In March 2014, the FASB issued ASU 2014-07, which provides new guidance under Accounting Standard Codification Topic 810- Consolidation. The update provides for an accounting alternative to apply variable interest entities guidance to common control leasing arrangements. We adopted this standard during 2015 and it did not have a material impact on our consolidated financial statements.

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In May 2014, the FASB issued ASU No. 2014-09, Revenue from Contracts with Customers, to replace the existing revenue recognition criteria for contracts with customers and to establish the disclosure requirements for revenue from contracts with customers. In August 2015, the FASB issued ASU No. 2015-14, Revenue from Contracts with Customers–Deferral of the Effective Date, to defer the effective date of ASU No. 2014-09 to interim and annual periods beginning after December 15, 2017, with early adoption permitted. Adoption of the ASUs are either retrospective to each prior period presented or retrospective with a cumulative adjustment to retained earnings or accumulated deficit as of the adoption date. We are currently assessing the impact of the ASUs on its consolidated financial statements.

In June 2014, the FASB issued ASU 2014-12, which provides new guidance on accounting for share-based payments when the terms of an award provide that a performance target could be achieved after the requisite service period. The update requires a reporting entity to treat a performance target that affects vesting and that could be achieved after the requisite service period as a performance condition under Accounting Standards Codification Topic 718 Compensation — Stock Compensation, and to apply existing guidance as it relates to awards with performance conditions that affect vesting to account for such awards. The update is effective for the interim and annual periods beginning after December 15, 2015. The adoption of this standard update is not expected to impact our consolidated financial statements.

In August 2014, the FASB issued ASU 2014-15, Presentation of Financial Statements -Going Concern (Subtopic 205-40). The amendments in this Update provide guidance in accounting principles generally accepted in the United States of America about management’s responsibility to evaluate whether there is substantial doubt about an entity’s ability to continue as a going concern and to provide related footnote disclosures. The amendments in this Update are effective for the annual period ending after December 15, 2016, and for annual periods and interim periods thereafter. Early application is permitted. This Update is not expected to have a significant impact on our financial statements.

In August 2014, the FASB issued ASU 2014-13, which provides new guidance ASC 810 – Consolidation- Measuring the Financial Assets and the Financial Liabilities of a Consolidated Collateralized Financial Entity. The update requires a reporting entity that consolidates a collateralized financing entity and measures the financial assets and the financial liabilities using the measurement alternative shall disclose the fair value measurement on financial instruments for the financial assets and the financial liabilities of the consolidated collateralized financing entity. The amendments in this Update are effective for public business entities for annual periods, and interim periods within those annual periods, beginning after December 15, 2015. For entities other than public business entities, the amendments in this Update are effective for annual periods ending after December 15, 2016, and interim periods beginning after December 15, 2016. The adoption of this standard is not expected to impact our consolidated financial statements.

In April 2015, the FASB issued ASU 2015-03, simplifying the presentation of debt issuance costs, to require debt issuance costs to be presented as an offset against debt outstanding as opposed to an asset. The ASU is effective for interim and annual periods beginning after December 15, 2015, with early adoption permitted. Adoption of the ASU is retrospective to each prior period presented. As of December 31, 2015, we adopted the ASU. As a result, for each prior period presented, we reclassified the debt issuance costs previously recorded within prepaid expenses and other current assets and other long-term assets to current and long-term portion of debt.

In July 2015, the FASB issued ASU No. 2015-11, Simplifying the Measurement of Inventory, to specify that inventory should be subsequently measured at the lower of cost or net realizable value, which is the ordinary selling price less any completion, transportation and disposal costs. However, the ASU does not apply to inventory measured using the last-in-first-out or retail methods. The ASU is effective for interim and annual periods beginning after December 15, 2016. Adoption of the ASU is prospective. We do not anticipate that the adoption of the ASU will have a material impact on our consolidated financial statements.

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In November 2015, the FASB issued ASU 2015-17 amending the accounting for income taxes and requiring all deferred tax assets and liabilities to be classified as non-current on the consolidated balance sheet. The ASU is effective for reporting periods beginning after December 15, 2016, with early adoption permitted. The ASU may be adopted either prospectively or retrospectively. We adopted this standard during 2015 and it did not have a material impact on our consolidated financial statements.

In February 2016, the FASB issued ASU 2016-02, which will replace most existing lease accounting guidance in U.S. GAAP. The core principle of the ASU is that an entity should recognize the rights and obligations resulting from leases as assets and liabilities. ASU 2016-02 requires qualitative and specific quantitative disclosures to supplement the amounts recorded in the financial statements so that users can understand more about the nature of an entity’s leasing activities, including significant judgments and changes in judgments. ASU 2016-02 will be effective for us beginning in fiscal 2019, and requires the modified retrospective method of adoption. Early adoption is permitted. We are in the process of determining the method and timing of adoption and assessing the impact of ASU 2016-02 on its consolidated financial statements.

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BUSINESS

Overview

Our mission is to make clean, reliable energy affordable for everyone in the world. To fulfill this mission, we have developed an advanced distributed electric power solution that is redefining the $2.5 trillion electric power market and transforming how power is generated and delivered, with the commercial and industrial (C&I) segments as our initial focus. Our solution, the Bloom Energy Server, is an on-site stationary power generation platform, built for the digital age and capable of delivering uninterrupted, 24x7 base load power that is fault tolerant, resilient and clean. The Bloom Energy Server converts standard low-pressure natural gas or biogas into electricity through an electrochemical process without combustion, resulting in very high conversion efficiencies and lower greenhouse gas emissions than conventional fossil fuel generation such as coal or oil combustion. A typical configuration produces 250 kilowatts of power in a footprint roughly equivalent to that of half of a standard 30 foot shipping container, or approximately 125 times more space-efficient than solar power generation. Any number of these Energy Server systems can be clustered together in various configurations to form solutions from hundreds of kilowatts to many tens of megawatts. The cost of electricity delivered by our solution is often favorable compared to grid-supplied power in the areas where our Energy Servers are deployed. Most importantly, the electricity produced by our systems offers our customers a significant advantage in predictable economics compared to rising and unpredictable grid prices. As a result, our system has been adopted by some of the largest companies in the world, including 24 of the Fortune 100 companies as of December 31, 2015.

The traditional centralized electric grid infrastructure requires significant investment for its maintenance, upgrade and operation, which has been continually driving up the cost of grid power. The electric grid has inherent vulnerabilities and is susceptible to failures due to natural disasters as well as cyber-attacks and physical sabotage. The daisy-chain topology of the centralized grid has a tendency to cascade outages rather than to contain them. Because our on-site stationary power systems are located at the point of consumption, our Energy Servers, when configured with our uninterruptible power module (UPM), largely avoid the existing electric power grid’s inherent vulnerability to outages from weather events and other threats, as well as the additional losses of efficiency associated with the transmission of power over long distances. Our Energy Servers are modular, redundant, and can be “hot swapped,” or serviced without interruption, offering very high availability to our customers.

According to the United Nations Development Programme, 1.3 billion people worldwide live without electricity—more than one in five people around the globe. In emerging countries, where there tends to be an acute shortage of electricity, it is often not economically viable to construct a new centralized grid due to the significant upfront investment required. We believe there is a leap-frogging opportunity in emerging economies to bypass the development or expansion of a centralized electric grid with a network of micro-grids powered by distributed power generation.

The electric grid typically delivers power generated by sources with a high carbon footprint, and there is increasing pressure to reduce resulting carbon dioxide and other greenhouse gas emissions. There is a rising demand for uninterruptible, distributed, clean electricity solutions that overcome the challenges of the traditional grid, and can address the requirements of the digital economy by delivering 24x7 electric power, with very high availability, reliability and quality. Our Energy Servers operate on-site at very high efficiencies using natural gas or biogas, offering significant greenhouse gas reductions, and, unlike prevalent renewable technologies such as wind and solar, provide a viable alternative to base load electricity generated by a central power plant.

We designed our solution as an alternative to the electric grid, with our value proposition centered on reliability, resiliency and sustainability, combined with attractive and predictable economics. Our systems deliver 24x7, clean base load power customized for today’s digital world, with high predictability and certainty of value for our customers over the long term. We have invested over $1.5 billion into building our company and

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developing our solution, and have continuously innovated and evolved our technology over time. Our latest solution is significantly less expensive to produce than our first commercially deployed solution in 2008, allowing us to expand our target markets. Our team has decades of experience in the various specialized disciplines and systems engineering concepts unique to this technology. We had 147 issued patents in the United States and 60 issued patents internationally as of December 31, 2015.

Our solution is capable of addressing customer needs across a wide range of industry verticals, including big box retail and grocery stores, corporate campuses, telecommunications and advanced data centers. However, we believe that we are capturing only a small percentage of our largest customers’ total energy spend, which gives us a significant opportunity for growth, particularly as the price of grid power increases in areas where our customers have additional sites. As of the end of 2015, we had 187 megawatts in total deployed systems and an additional product sales backlog of 87.9 megawatts.

History

Bloom Energy was founded in 2001 with the mission to make clean, reliable energy affordable for everyone in the world. To fulfill this mission, we created the Bloom Energy Server, based on proprietary, advanced solid oxide fuel cell technology, which delivers always-on power that is highly reliable, resilient, clean, accessible and cost predictable. Our team has decades of experience in solid oxide fuel cell technology. In 2002, Kleiner Perkins Caufield Byers became our first venture capital investor. In 2008, we delivered our first commercial installation, which was for a major technology company. As of December 31, 2015, we have 187 megawatts in deployed systems and our customers include 24 of the Fortune 100 companies.

Industry Background

People around the world depend upon access to reliable and affordable electric power for a healthy, functioning economy and for delivery of essential services. According to Marketline, the market for electric power is one of the largest sectors of the global economy with an annual spend of $2.5 trillion in 2014, and is projected to grow at a compound annual growth rate of 7.6% to $3.6 trillion in 2019.

There are numerous challenges driving a transformation in how electricity is produced, delivered and consumed. We believe that this transformation will be similar to the seismic shifts seen in the computer and telecommunications industries, from centralized mainframe computing and landline telephone systems to ubiquitous and highly personalized distributed technologies.

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Some of the key challenges facing the electric power market are:

Increasing costs to maintain and operate the existing electric grid

The U.S. Department of Energy has recently described the U.S. electricity grid as “aging, inefficient, congested, and incapable of meeting the future energy needs of the information economy,” while the American Society of Civil Engineers gave the U.S. energy infrastructure a grade of D+ in 2013. The electric power grid has suffered from insufficient investment in critical infrastructure as a result of complexities surrounding the ownership, operation and regulation of grid infrastructure, compounded by the challenges of large capital costs and lack of adequate innovation. The Edison Electric Institute estimated that between 2015 and 2017, U.S. investor-owned electric utilities will need to make total capital expenditure investments of approximately $300 billion.

Inherent vulnerability of existing grid design

The existing electric grid architecture features centralized, monolithic power plants and mostly above-ground transmission and distribution wires. This design has numerous points of failure and limited redundancy, and the daisy-chain topology can cascade outages rather than contain them. For example, in 2003, an initial failure blamed on a tree branch in Ohio set off outages that cascaded across eight states and parts of Canada, cutting power for 50 million people. Similarly, in 2011, a dropped transmission line in Arizona cascaded and created a massive outage across Southern California.

Furthermore, the limits of this design, coupled with aging and underinvested infrastructure, leaves the grid vulnerable to natural disasters such as hurricanes, earthquakes, drought, wildfires, flooding and extreme temperatures. For example, Hurricane Sandy knocked out power to 8.5 million customers from North Carolina to Maine, and as far west as Illinois and Michigan. The U.S. Council of Economic Advisers and U.S. Department of Energy estimate that weather-related electricity outages cost the U.S. economy up to $335 billion between 2003 and 2012. Some of these natural disasters are increasing in frequency and severity, a trend expected to continue due to climate change and other factors, which will likely increase the cost of grid-supplied power to customers.

There is also increasing concern over the threat of cyber-attack and physical sabotage to the centralized grid infrastructure. In 2011, Secretary of Defense Leon Panetta testified to Congress that “the next Pearl Harbor” could be a cyber-attack on critical U.S. infrastructure, including the electric power grid.

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Lack of access to affordable and reliable electricity in developing countries

According to the United Nations Development Programme, 1.3 billion people worldwide live without electricity—more than one in five people around the globe. For developing countries to grow their economies, they must expand access to reliable and affordable electric power. Building a centralized grid system, in addition to its inherent limitations, can also be infeasible due to the lack of adequate capital for upfront investment. Moreover, in dense urban areas, the costs of building this infrastructure are compounded by a lack of urban planning. In rural areas, using the centralized model to transmit and distribute electricity to low-density populations is economically unviable. As a result, we believe these countries are likely to develop a hybrid solution consisting of both centralized and distributed electrical power infrastructure to accelerate availability of power.

Increasing concern over climate change

In response to rising concern over climate change, the 2015 Paris COP21 climate talks resulted in a global consensus that the rate of release of carbon dioxide and other greenhouse gases must be reduced with an increased sense of urgency. The electric power sector, which today produces more greenhouse gases than any other sector of the global economy, is under increasing pressure to do its part. Policy initiatives to reduce greenhouse gases from power generation are widespread, including renewable portfolio standards, or mandated targets for low-or zero-carbon power generation, and EPA directives limiting carbon emissions from power generation.

Intermittent generation sources negatively impacting grid stability

According to the Department of Energy’s Quadrennial Energy Review in 2015, electricity generation from wind grew over three-fold while solar grew over 20-fold between 2008 and 2014. While these renewable sources help to reduce greenhouse gas emissions, they provide only intermittent power to the grid, which compromises the grid’s ability to deliver 24x7 reliable electric power. Even with this substantial growth, solar power contributed only 0.7% of total energy generation in the United States in 2015. As the penetration of these resources increases, balancing real-time supply and demand becomes more challenging and costly.

Due to these challenges, we need 24x7 electric power solutions that are reliable, clean and without the shortcomings of the existing grid infrastructure. This need is especially acute in the C&I segments, representing 68% of global electricity consumption, according to Marketline, where cost and reliability have a direct impact on profitability and business sustainability.

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Our Solution

Our Bloom Energy Server is an advanced distributed power generation system that delivers clean, always-on, primary base load power on-site.

The Bloom Energy Server is based on our proprietary solid oxide fuel cell technology, which converts fuel into electricity through an electrochemical process without combustion. The only input to the system is standard low-pressure natural gas or biogas from municipal gas lines. The high-quality electrical output of the Energy Server is connected to the customer’s main electrical feed, capable of avoiding the transmission and distribution losses associated with the centralized grid system. Each Bloom Energy Server is modular and composed of independent 50 kilowatt power modules. A typical configuration includes multiple power modules in a single Energy Server, which produces 250 kilowatts of power in a footprint roughly equivalent to that of half a standard 30 foot shipping container, or approximately 125 times more space-efficient than solar power generation. Any number of these Energy Server systems can be clustered together in various configurations to form solutions from hundreds of kilowatts to many tens of megawatts. The Bloom Energy Server provides a single core technology platform that is easily customizable and upgradeable to add new features and capabilities. The Bloom Energy Server is easily integrated into corporate environments due to its aesthetically attractive design, compact space requirement, minimal noise profile and lack of harmful emissions.

Pictured below (from left to right) are: a 400 kilowatt office tower set back; multiple Energy Servers comprising a 650 kilowatt solution; and a 27 megawatt utility-scale deployment.

Our Value Proposition

Our value proposition is supported by four key pillars: reliability, resiliency, sustainability and predictable economics. While the relative importance of these attributes can vary by customer, the combination of these four factors is a significant differentiator for us in the marketplace. We provide a complete, integrated “behind-the-meter” solution including installation, equipment, service, maintenance and, in some cases, bundled fuel. The four elements of our value proposition emphasize those areas where there is a strong customer need and where we believe we can deliver superior performance.

Reliability. Our Energy Servers deliver always-on, 24x7 base load power that can be used with or without complementary intermittent power sources. The output of our Energy Servers is designed to meet the requirements of the digital economy, with very high availability of power, mission-critical reliability and grid-independent capabilities. Bloom provides highly customizable power, including quality, voltage, and current, which can be tuned to specific customer requirements, from a single technology platform. The Bloom Energy Server can be configured to eliminate the need for traditional backup power equipment such as diesel generators, batteries or UPS systems.

Resiliency. Our Energy Servers avoid the vulnerabilities of conventional transmission and distribution lines by generating power on-site. The system operates at very high availability due to its modular and fault-tolerant design, which includes multiple independent power generation modules that are hot swappable. Importantly, our systems utilize the reliable and resilient natural gas infrastructure, which is a mesh network buried underground,

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unlike the daisy chain, above-ground electric grid architecture. A failure at one point in the natural gas system does not necessarily cause the same kind of cascading failure that can occur on the electrical grid.

Sustainability. Our Energy Servers are fuel-flexible, enabling our customers to choose the fuel source that best fits their needs based on availability, cost and carbon footprint. When running on natural gas, compared to average emissions across the U.S. grid, Bloom Energy Servers reduce carbon emissions by over 50%. Bloom Energy Servers can also utilize renewable biogas to generate carbon-neutral electricity. In both cases, our Energy Servers emit virtually no criteria air pollutants, including NOx or SOx.

Bloom Energy Servers use virtually no water in normal operation. On average, to produce one megawatt per hour for a year, thermoelectric power generation for the U.S. grid consumes approximately 156 million gallons of water more than Bloom Energy Servers.

Predictable economics. In contrast to the rising and unpredictable cost outlook for grid electricity, we offer our customers the ability to lock in cost for electric power over the long term. We provide customers with a solution that includes all of the fixed equipment and maintenance costs for the life of the contract. We also enable our customers to scale from a few hundred kilowatts to many megawatts on a “pay-as-you-grow” basis.

Factors Driving Customer Adoption

Key factors that are driving the rapid adoption of our solution include:

Customers are driving a growing requirement for high-quality and reliable power in the increasingly pervasive digital economy. The proliferation of cloud services and big data, and the associated explosion in demand for computing power, is reshaping the type and quality of power demanded by the digital economy. For providers and users of cloud services, uninterruptible, high-quality power is essential—requirements that the legacy grid is struggling to meet. Our highly available and scalable solution can replace the current patchwork of solutions, which include surge protectors, UPS and back-up generators.

Customers are seeking an alternative to the unpredictable and rising price of grid power. Grid costs in the United States have been rising for decades and are expected to continue to rise over the long term. In the shorter term, grid prices can be volatile, driven by regulatory judgments, commodity prices and the impact of external events such as weather. In contrast, we offer a complete turn-key solution that can provide customers with a competitive and predictable cost for their electricity for periods of up to 20 years.

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Average Cost of Electricity in Top 10 States (by total consumption)

Average retail price (cents / kWh)	1990-1994		1995-1999		2000-2004		2005-2009		2010-2014
Texas		6.16		6.11		7.19		10.09		8.90
California		9.48		9.34		11.20		12.60		13.81
Florida		7.07		7.05		7.55		10.35		10.52
Ohio		6.09		6.31		6.68		8.02		9.24
Pennsylvania		7.90		7.69		7.95		8.99		10.15
Illinois		7.59		7.50		6.89		8.17		8.82
New York		10.20		10.80		11.82		15.27		15.83
Georgia		6.61		6.41		6.35		8.11		9.51
North Carolina		6.54		6.50		6.73		7.80		9.01
Virginia		6.17		6.05		6.21		7.51		8.95

Source: U.S. Energy Information Administration

Our technology is proven with industry-leading customers. Our approach to innovation is evolutionary — every generation of our technology builds on a proven core and factors in lessons learned from our broadly deployed fleet. Our systems have been deployed with Fortune 500 customers since 2008 and have reached 187 megawatts in total. Our systems have operated without disruption through natural disasters such as Hurricane Sandy and the 6.0 Richter scale earthquake near Napa, California in 2014.

The natural gas revolution has provided an economically attractive means for achieving carbon reduction. Natural gas, an important bridge fuel to the lower-carbon future, is now in abundant supply at economically attractive prices. This abundance, coupled with new technologies such as our Energy Servers that convert this fuel into electricity at high efficiency, will play a major role in replacing high-carbon fuels such as coal and oil.

Our Growth Strategy

Our growth strategies include:

Maintain technology leadership and leverage first-mover advantage

Our technology leadership is considerable and we have a well-established track record of continuous improvement. Our priority is to continue to advance our technology and build on this leadership position.

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Significant and sustained improvements in “power density.” We have continually added more generation capacity into the same footprint and expect to continue to do so with successive generations of our technology. Today’s Bloom Energy Servers are capable of delivering five times the power of our first-generation system only five years ago, while staying within approximately the same service footprint. It is also an increasingly powerful differentiator versus other solutions such as solar, which requires at least 125 times more space—which is often unavailable—to deliver the same amount of power as one Bloom Energy Server does today.

Installed Capacity Footprint Comparison: 1 megawatt Solar PV (6,250 m²) vs. 1 megawatt Bloom Energy (50m²)

Continual increases in electrical efficiency. Efficiency is defined as the percentage of the energy in the fuel that is converted to electricity. The higher the efficiency, the less fuel used to generate a given unit of electric power output, resulting in lower fuel costs. Today, our Energy Servers are significantly more efficient than the average of the U.S. grid. The latest generation of our Energy Servers, which began shipping in 2015, is capable of beginning-of-life (BOL) efficiencies of 65%, and we expect to further improve the efficiency in succeeding generations.

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Expanded feature sets and sizing options to address new market opportunities. The Bloom Energy Server platform provides the hardware and software building blocks that can be deployed in different configurations to provide market-specific solutions. For example, we may provide smaller or custom solutions which could allow us to address additional markets, such as powering cell sites in the mobile telephony market and franchise retail, in the future. Our current offering is well suited for multi-tenant housing, a segment that we intend to address in emerging economies as we expand to international markets. The platform components can also be configured to provide larger systems for utility or large industrial applications.

Grow wallet share with existing customers and acquire new customers

We employ a “land and expand” model, in which our strategy is to prove the value of Bloom solutions to our customers, establish incumbency and grow share of wallet as we create more value across more of our customers’ facilities over time. Approximately three quarters of our sales volume since 2011 has been derived from repeat customers. These repeat orders provide better visibility into our sales pipeline and also lower our cost of sales. The quality and staying power of our customers are important factors contributing to our confidence in this strategy. We currently target primarily Fortune 500 customers with very significant electric power spend. Given our customers’ large total electric power spend, we view the current low penetration rate as a significant opportunity for growth.

While we expect that the majority of our near-term volume will continue to be derived from repeat customers, we remain focused on acquiring new customers. The successful adoption of our solution by industry leaders has also encouraged new customers of similar scale and electricity demand to follow suit. As a result, while volume has been driven by repeat customers, the majority of new sales contracts since 2011 are with new customers.

Drive production cost reductions to expand our market

Since our initial commercial deployments eight years ago, we have continually brought the production cost of our systems down. We expect technology innovation to drive further reductions as each successive generation of Bloom Energy Servers builds on the design and field experience of all previous generations. As our production costs continue to decrease this will enable us to expand into new markets. Furthermore, we expect that increased production volumes will lead to further cost reductions, enabling improved margins. On a per unit basis, which we measure in dollars-per-kilowatt, we have reduced our material costs by over 75% from the inception of our first generation Energy Server to our current generation Energy Server. Material costs per unit came down by more than 50% over the life of our first generation system and by over 40% over the life of our second generation system. With each successive new generation, we have been able to reduce the material costs compared to the prior generation’s material costs: Our second generation had material costs at the start of production that were approximately 60% lower per kilowatt than our first generation and our third generation had material costs at the start of production that were more than 35% lower per kilowatt than our second generation.

Expand into international markets and new fast-growing segments

International. Most of our current and target customers have global footprints, which we expect will be another avenue for growth while also lowering the cost and risk of new market entry. Today, we have installations in Japan and India.

We also target fast-growing segments where we believe we can deliver significant value including data centers and critical facilities such as distribution centers, which cannot suffer even a momentary disruption to power without significant negative consequences. We will consider using contractors to provide basic installation and operations and maintenance services in international locations.

Data Centers. We can provide primary power for data centers with up to Tier III availability and reliability without reliance on traditional back up or power conditioning equipment. A customer-commissioned study by the University of Illinois, Champaign-Urbana found that a Bloom Energy solution configured to provide mission-critical power was significantly more reliable than a traditional topology of grid power plus uninterruptible

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power systems and diesel backup. According to Technavio, a leading market research company, the global data center power market was valued at $9.9 billion in 2014 and is expected to reach $18.7 billion by 2019, growing at a compound annual growth rate of 14%.

Micro-Grids. As communities and organizations look to mitigate the risk of grid power outages, there is significant and growing interest in micro-grids, which combine distributed power generation and storage into a network that can be isolated from the larger grid. Our flexible architecture allows integration of our systems with these other distributed generation sources and technologies, such as solar and storage, by providing the stable always-on primary power—a key requirement for a micro-grid solution. According to Technavio, the global micro-grid market was valued at $9.2 billion in 2014 and is expected to reach $21.8 billion by 2019, growing at a compound annual growth rate of 19%.

We believe many developing countries will leapfrog to a micro-grid, hybrid centralized/distributed infrastructure similar to how many such countries also bypassed fixed landline infrastructure and directly adopted mobile telephony.

We are well-positioned to compete in this market by providing a field-customizable, on-site, always-on base load power generation system—a key requirement for a micro-grid solution.

Provide innovative financing options to our customers

We intend to continue to assist our customers by providing innovative financing options to purchase our solution and grow our market opportunity. We have developed multiple options for our customers to acquire the power our Energy Servers produce. These offerings provide a range of options that enable customers to do business with us and secure power best customized to their needs. Our customers can purchase our systems outright, with operations and maintenance services contracts, or purchase the electricity that our Energy Servers produce without any upfront costs through various financing vehicles, including leases and power purchase agreements (PPAs), that combine the cost of our systems, warranty and service, financing, and in some cases fuel into monthly payments based on the electricity produced.

Technology

The fuel cells in our Energy Servers convert fuel, such as natural gas or biogas, into electricity through an electrochemical reaction without burning the fuel. Each individual fuel cell is composed of three layers: an electrolyte sandwiched between a cathode and an anode. The electrolyte is a solid ceramic material, and the anode and cathode are made from inks that coat the electrolyte. Unlike other types of fuel cells, no precious metals, corrosive acids or molten materials are required.

To fuel the electrochemical reaction, natural gas enters the anode side, where it mixes with steam to produce reformed fuel. As the reformed fuel crosses the anode, it attracts oxygen ions from the air on the cathode side. The oxygen ions combine with the reformed fuel to produce electricity, water, heat and small amounts of carbon dioxide. The water and heat get recycled to produce the steam needed to reform the fuel. This enables a highly efficient electrochemical reaction to produce electricity without any requirement for water, other than to start the system.

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These fuel cells are the foundational building block of the Bloom Energy Server. We combine a number of the fuel cells into a stack, and then combine a number of the stacks to form 50 kilowatt power modules (depending upon the generation required by the customer). Each module contains hundreds of individual fuel cells that produce DC power, and an input/output module that contains fuel processing, DC-to-AC converters, and transformers. Each power module operates independently and can be hot swapped, or decommissioned, replaced or serviced without shutting down the entire system. This modular approach leads to high availability as well as upgradability. In addition, every new generation of our fuel cell technology is designed to be backward compatible for power module replacement and upgrades. This allows us to maintain the existing Bloom Energy Server fleet with the latest generation of technology, while simplifying our manufacturing.

Any number of these Energy Server systems can be arranged in various configurations to form solutions from hundreds of kilowatts to many tens of megawatts. Regardless of the starting size of a solution, further scaling can be accomplished after the initial solution deployment, creating on-going flexibility and scalability for the customer. This feature allows a customer to “pay as they grow,” conserving on current spending without constraining a future local expansion. In addition, as the power density of our Energy Server has improved we have begun to consider the introduction of a smaller 30-50 kilowatt system, which can be used for powering telecommunications towers, franchise retail stores and other small commercial buildings. With our strong footprint in the communications, media and retail sectors, this represents a significant potential opportunity for growth. We believe these systems could also be attractive to emerging markets.

In a basic configuration, the Bloom Energy Server is interconnected to the customer’s electric grid connection. By regulation, the Bloom Energy Server must stop exporting power in case of a grid outage. However, Energy Servers can be upgraded with a Bloom Energy Uninterruptable Power Module (UPM) as an add-on option at any point in time to enable continuous operation in the event of grid interruption. When using a UPM, the Energy Server continually powers critical loads while the grid serves as a backup. Should there be a disruption to grid power the critical load, which is already receiving primary power from the Energy Server, experiences no disruption. The combination of primary power from the Energy Server, utilizing the natural gas infrastructure, and secondary feed from the independent electric grid results in a very highly available and reliable solution.

Bloom vs. Legacy Fuel Cells

Basic fuel cell technology is over 100 years old. The Bloom Energy Server is based on advanced solid oxide fuel cell technology which produces electricity directly from oxidizing a fuel. The solid oxide fuel cell has a solid oxide or ceramic electrolyte. The advantages of this technology include high efficiency, long-term stability, elimination of the need for an external fuel reformer, ability to use biogas or natural gas as a fuel, low emissions and relatively low cost. There are a variety of fuel cell technologies, characterized by their electrolyte material, including:

• Proton exchange membrane fuel cells (PEM). PEM fuel cells typically are used in on-board transportation applications, such as powering forklifts, because of their compactness and ability for

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quick starts and stops. However, PEM technology requires an expensive platinum catalyst which is susceptible to poisoning by trace amounts of impurities in the fuel or exhaust products. These fuel cells require hydrogen as an input source of energy or an external fuel reformer, which adds to the cost, complexity and electrical inefficiency of the product. As a result, they are not an economically viable option for stationary base load power generation.

• Molten carbonate fuel cells (MCFC). MCFCs are high-temperature fuel cells that use an electrolyte composed of a molten carbonate salt mixture suspended in a porous, chemically inert ceramic matrix of beta-alumina solid electrolyte. The primary disadvantages of current MCFC technology are durability and lower electrical efficiency compared to solid oxide fuel cells. Current versions of the product are built for 300 kilowatts, and they are monolithic. Smaller sizes are not economically viable. In many applications where the heat produced by these fuel cells is not useable continuously, getting rid of the heat also becomes a liability.

• Phosphoric acid fuel cells (PAFC). PAFCs are a type of fuel cell that uses liquid phosphoric acid as an electrolyte. Developed in the mid-1960s and field-tested since the 1970s, they were the first fuel cells to be commercialized. PAFCs have been used for stationary power generators with output in the 100 kilowatt to 400 kilowatt range. PAFCs are best suited to combined heat and power applications which require carefully matching power and heat requirements, often making the technology difficult to implement. Further disadvantages include low power density and stability.

While solid oxide fuel cell offered the best prospects for base load power generation, the challenges associated with fundamental and applied materials and packaging problems served as a roadblock to developing and commercializing this technology. Our advanced solid oxide fuel cell technology enables both low cost and very high levels of reliability, paving the way for broad commercial application. Compared with legacy fuel cell alternatives, Bloom Energy Servers feature significant advantages:

• Highest electrical efficiency. The latest generation of our Energy Servers has greater than 65% BOL electrical efficiency, approximately 40% to 60% higher than that of legacy fuel cells, improving both cost and carbon dioxide emissions.

• Greater reliability and availability. Our Energy Servers have high reliability and availability of greater than 99.99%, which is superior to legacy systems.

• Greater flexibility and simplicity. Our Energy Servers can use natural gas or biogas as a fuel with no modification to their fuel cell chemistry. It is the only fuel cell product that does not require an external fuel reformer. No complex heating/cooling integration is required as waste heat is used internally to maximize efficiency, making Bloom Energy Servers easy to deploy.

• Appealing design. Our Energy Servers’ pleasing aesthetics and minimal noise are better suited for corporate campuses and increase customer options for siting.

• No water needed for continuous operation. Bloom Energy Servers require no water during normal operation after initial start-up. The system is air-cooled and operates over a wide range of ambient temperatures.

Manufacturing and Supply Chain

We believe our tightly integrated in-house research and development, engineering and manufacturing capabilities, and facilities provide us with a significant competitive advantage.

Manufacturing Expertise. We design most of our key fuel cell and stack manufacturing equipment and build some of the significant equipment in-house. Our manufacturing team has experience with leading companies in the automotive and semiconductor manufacturing industries, which are known for high-volume production, rapid cost reduction and the highest-quality output. As such, our teams have implemented lean manufacturing processes to systematically eliminate waste and inefficiency throughout our manufacturing and supply chain operations.

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Facilities. Our current manufacturing processes reflect a rapid rate of learning and adoption of new ideas from our decade of manufacturing experience. Our primary manufacturing locations for the fuel cells and system assembly are in Sunnyvale, California and Newark, Delaware. The 178,400 square foot manufacturing facility in Newark is the first purpose-built Bloom manufacturing center and was designed specifically for copy-exact duplication as we expand, which we believe will help us scale more efficiently. We believe our current manufacturing facilities are adequate to support our business for the next few years. Our Newark facility includes an additional 50 acres available for factory expansion and/or the co-location of supplier plants. Both of our two principal manufacturing facilities are powered by Bloom Energy Servers.

Supply Chain. We have multiple sources for most of the critical raw materials, capital equipment and components necessary to build our systems. Many of the key components and materials, including a large percentage of power electronics and controls system components, are commercially available.

In some cases we have entered into long-term supply agreements with suppliers based on our forecasted inventory demand pursuant to which these suppliers are contractually obligated to purchase the forecasted inventory, and we maintain the right to cancel such orders at a minimum of 90 days prior to delivery. All of our suppliers must undergo a rigorous qualification process, and we continually evaluate suppliers.

Services

We offer operations and maintenance services agreements for our Energy Servers, which are renewed on an annual basis. The customer agrees to pay an on-going service fee and in return Bloom monitors, maintains and operates the systems on their behalf.

Our in-house service organization has 61 dedicated field service personnel in 14 locations. Standard customer contracts include service covering all on-going system operation, maintenance, upgrades—including periodic refresh of power modules – and 24x7 remote monitoring and control of the systems.

Each Bloom Energy Server includes a secure connection to redundant Remote Monitoring and Control Center (RMCC) facilities that are geographically well separated. Together these RMCC facilities provide constant monitoring of over 500 system performance parameters and predictive factors. Using proprietary, internally developed software, the RMCC Operators can optimize fleet performance remotely from either RMCC facility. As needed, the operators can dispatch field services to the site to locally restore and enhance performance. The RMCC facilities communicate through a secure network, and can operate together or independently to provide full services for the fleet.

We currently service and maintain all of our Energy Servers; however we may engage third-party service organizations to provide routine field maintenance domestically, such as replacing air filters. Internationally, we intend to create strategic partnerships for local service and support of customer installations.

Competition

We primarily compete against the grid based on superior reliability, resiliency, sustainability, cost predictability and operational flexibility. As we are able to drive our costs down, we expect our economic value proposition to continue to improve relative to grid power. Other sources of competition include:

• Intermittent solar power. Solar power is intermittent and best suited for addressing peak power requirements, while Bloom provides stable base load generation. Storage technology is intended to address the intermittency of solar, but the low power density and efficiency of solar technology makes the combined solution impractical for most C&I customers. As a point of comparison, our Energy Servers provide the same power output in 1/125th of the footprint of solar, allowing us to address far more commercial applications based on a customer’s available space.

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• Wind power. Typically wind power is deployed for utility-side, grid-scale applications but not as a customer-side, distributed power alternative.

• Traditional co-generation systems. These systems deliver a combination of electric power and heat. We believe that we compete favorably because of our superior electrical efficiencies, significantly less complex deployment (avoiding heating systems integration), better performance on emissions and noise, superior availability, aesthetic appeal, ease of permits and reliability.

• Traditional backup equipment. As our Energy Servers deliver always-on power, they can obviate the need for traditional backup equipment such as diesel generators and batteries. We generally compete by offering a better integrated, more reliable and cost-effective solution versus these grid-plus-backup systems.

• Other commercially available fuel cells. These are described in the section titled “—Technology.”

The customer has no single alternative solution that provides all of the important attributes – reliability, resiliency, sustainability and cost predictability.

Sales and Marketing

We market our Bloom Energy Servers primarily through a national direct sales organization, supported by project finance, business development, government affairs and marketing teams. In addition to our internal resources, we also work with multiple partners to generate customer leads and develop projects. For project financing, we work with partners such as Key Bank, Bank of America, Credit Suisse, Constellation Energy, a subsidiary of Exelon Corporation, and WGL Energy.

Research and Development

Our research and development organization has addressed complex applied materials, processing and packaging challenges through the invention of many proprietary advanced material science solutions. Over a decade, Bloom has built a world-class team of solid oxide fuel cell scientists and technology experts. Our team comprises technologists with degrees in Materials Science, Electrical Engineering, Chemical Engineering, Mechanical Engineering, Civil Engineering and Nuclear Engineering, and includes more than 25 PhDs. This team has continued to develop innovative technology improvements for our Energy Servers, achieving increased power density and electrical efficiency, reduced cost and improved reliability.

Our research and development expenses were $53.0 million and $43.9 million for 2014 and 2015, respectively.

Intellectual Property

Intellectual property is an essential differentiator for our business, and we seek protection for our intellectual property whenever possible. We rely upon a combination of patents, copyrights, trade secrets, and trademark laws, along with employee and third party non-disclosure agreements and other contractual restrictions to establish and protect our proprietary rights.

We have developed a significant patent portfolio to protect certain elements of our proprietary technology. As of December 31, 2015, we had 147 issued patents and 104 patent applications pending in the United States and we had an international patent portfolio comprised of 60 issued patents and 106 patent applications pending with filings in 13 countries under two multinational conventions, which are generally counterparts of the U.S. patents and patent applications. Our U.S. patents are expected to expire between 2022 and 2035.

We continually review our development efforts to assess the existence and patentability of new intellectual property. We pursue the registration of our domain names and trademarks and service marks in the United States

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and in certain locations abroad. In an effort to protect our brand, as of December 31, 2015, we had nine registered trademarks in the United States, six registered trademarks in two other countries and one multinational filing protocol, and five pending applications for additional filings in two countries and one multinational filing protocol.

Sustainability

The largest environmental impact we can provide is to maximize the deployment of Bloom systems, which reduce carbon emissions and save water compared to traditional power generation systems. Thus, our primary sustainability goal is to maximize sales of Bloom systems and provide the longest and most economically sustainable life cycle possible for the Bloom fuel cells through reliability enhancement programs.

We also seek to minimize our environmental footprint and extend system operating life while reducing consumption of new material in our Energy Servers. We have an end-to-end recycling approach to recover components from end-of-life units for maximum reuse or recycling. We have dedicated facilities in our manufacturing locations in Delaware and California to inspect and dismantle end-of-life Energy Servers and components removed during scheduled maintenance. We have an audit program to identify improvement opportunities at suppliers and also work with them to reduce one-way packaging to minimize materials going to landfills.

These strategies in combination provide a robust and comprehensive sustainment strategy that looks both at our external impact on the wider environment and internally on responsible design, cradle-to-cradle materials management and recycling.

Permits and Approvals

Each Bloom Energy installation must be designed, constructed and operated in compliance with applicable federal, state and local regulations, codes, standards, guidelines, policies and laws. To install and operate our systems, we, our customers or our partners are required to obtain applicable permits and approvals from local authorities having jurisdiction to install the Bloom Energy Servers and to interconnect the systems with the local electrical utility.

Bloom Energy Servers generate electricity without combustion and are certified by the California Air Resources Board (CARB) to meet its stringent emissions standards for NOx, CO and VOCs, and therefore are exempt from certain permit requirements of air pollution control and air quality management districts.

Government Policies

There are varying policy frameworks across the United States and abroad designed to support and accelerate the adoption of clean and/or reliable distributed generation technologies such as Bloom Energy Servers. These policy initiatives come in the form of tax incentives, cash grants, performance incentives and/or specific gas or electric tariffs.

The U.S. federal government provides businesses with a 30% ITC available under Section 48 of the Internal Revenue Code, available to the owner of our Energy Server for systems purchased and placed into service by December 31, 2016. The credit is equal to 30% of expenditures, and the credit for fuel cells is capped at $1,500 per 0.5 kilowatt of capacity.

Our Energy Servers are currently installed in 10 states in the United States, each of which has its own enabling policy framework. Some states have utility procurement programs and/or renewable portfolio standards for which our technology is eligible. Our Energy Servers currently qualify for tax exemptions, incentives or other customer incentives in many states, including the states of California, New Jersey, Connecticut and New York. These incentives are subject to change. For example, in November 2015, the Energy Division staff of the California Public Utilities Commission (CPUC) proposed to modify a renewable energy incentive program for

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which our Energy Servers currently qualify, the SGIP, in a manner that may exclude our Energy Servers from the program. A final decision by CPUC has not yet been made.

Although we generally are not regulated as a utility, federal, state, and local government statutes and regulations concerning electricity heavily influence the market for our product and services. These statutes and regulations often relate to electricity pricing, net metering, incentives, taxation, competition with utilities, and the interconnection of customer-owned electricity generation. In the United States, governments continuously modify these statutes and regulations. Governments, often acting through state utility or public service commissions, change and adopt different rates for commercial customers on a regular basis. These changes can have a positive or negative impact on our ability to deliver cost savings to customers for the purchase of electricity.

To operate our systems we obtain interconnection agreements from the applicable local primary electricity and gas utilities. In almost all cases, interconnection agreements are standard form agreements that have been pre-approved by the local public utility commission or other regulatory body with jurisdiction over interconnection agreements. As such, no additional regulatory approvals are typically required once interconnection agreements are signed.

Our operations are subject to stringent and complex federal, state and local laws and regulations governing the occupational health and safety of our employees and wage regulations. For example, we are subject to the requirements of the federal Occupational Safety and Health Act, as amended, or OSHA, and comparable state laws that protect and regulate employee health and safety.

Product safety standards for stationary fuel cell generators have been established by the American National Standards Institute (ANSI). These standards are known as ANSI/CSA “FC-1”. Our products are designed to meet this standard. Further, we utilize UL to certify compliance with the standard.

Energy Server installation guidance is provided by NFPA 853: Standard for the Installation of Stationary Fuel Cell Power Systems. Installations at sites are carried out to meet the requirements of this standard.

Employees

As of December 31, 2015, we had 1,375 global employees and contractors. We have not experienced any work stoppages and we consider our relationship with our employees to be good.

Facilities

Our corporate headquarters is located in Sunnyvale, California. This facility comprises approximately 31,000 square feet of space. Our current lease, entered into in September 2010, expires in February 2018. We also lease manufacturing facilities in Sunnyvale and Moffett Field, California. These plants together comprise approximately 74,000 square feet of space. Our current lease for our Sunnyvale manufacturing facilities, entered into in April 2005, expires in 2020, and our current lease for our manufacturing facilities at Moffett Field, entered into in December 2011, expires in December 2016. We also own a manufacturing facility in Newark, Delaware comprising approximately 178,400 square feet of space, and lease additional office space around the world, including in the United States, India, China and Taiwan. We believe our facilities are adequate to support our business for the next few years.

Legal Proceedings

From time to time, we are involved in various legal proceedings or subject to claims arising in the ordinary course of our business. Although the results of legal proceedings and claims cannot be predicted with certainty, we are not currently party to any legal proceedings the outcome of which, in the opinion of our management, if determined adversely to us, would individually or taken together have a material adverse effect on our business, operating results, financial condition or cash flows.

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MANAGEMENT

Executive Officers, Other Key Employees and Directors

The following table sets forth certain information concerning our executive officers, directors and other key employees as of December 31, 2015:

Name	Age		Position(s)
Executive Officers and Other Key Employees:
KR Sridhar (1)		55	Founder, President, Chief Executive Officer and Director
Randy Furr		61	Executive Vice President and Chief Financial Officer
Bill Kurtz		58	Executive Vice President and Chief Commercial Officer
Susan Brennan		53	Executive Vice President and Chief Operations Officer
Swaminathan Venkataraman		55	Executive Vice President of Engineering and Chief Technology Officer
Matt Ross		55	Executive Vice President and Chief Marketing Officer
William Thayer		55	Executive Vice President of Sales
David Barber		55	Executive Vice President and Chief People Officer
Shawn Soderberg		55	Executive Vice President, General Counsel and Secretary
Glen Griffiths		53	Executive Vice President of Quality, Reliability and Sustainability
Non-Employee Directors:
Steve Case		57	Director
L. John Doerr		64	Director
Colin L. Powell		78	Director
T.J. Rodgers		67	Director
Scott Sandell		51	Director
Peter Teti		48	Director
Eddy Zervigon		46	Director

⁽¹⁾  Chairman of the board of directors.

⁽²⁾  Member of the compensation and organization development committee.

⁽³⁾  Member of the audit committee.

⁽⁴⁾  Lead Independent Director.

⁽⁵⁾  Member of the nominating and corporate governance committee.

Executive Officers and Other Key Employees

KR Sridhar is our founder and has served as a member of our board of directors since January 2001 and as our Chief Executive Officer since April 2002. Prior to founding Bloom Energy, Mr. Sridhar was director of the Space Technologies Laboratory at the University of Arizona where he was also a professor of Aerospace and Mechanical Engineering. Mr. Sridhar has served as an advisor to NASA and has led major consortia of industry, academia, and national labs. Mr. Sridhar also serves as a strategic limited partner at Kleiner Perkins Caufield & Byers, a venture capital firm, and as a special advisor to New Enterprise Associates, a venture capital firm. He has also served on many technical committees, panels and advisory boards and has several publications and patents. Mr. Sridhar received a B.S. in Mechanical Engineering from the National Institute of Technology, Tiruchirappali, India, as well as a M.S. in Nuclear Engineering and Ph.D. in Mechanical Engineering from the

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University of Illinois, Urbana-Champaign. Mr. Sridhar was selected to serve as a member of our board of directors due to the perspective and experience he brings as our founder and Chief Executive Officer.

Randy Furr has served as our Chief Financial Officer since April 2015. Prior to joining Bloom Energy, Mr. Furr served as corporate executive vice president and chief financial officer for Spansion, Inc., a manufacturer of flash memory semiconductors, from June 2009 to March 2015. Mr. Furr held senior executive positions as executive vice president and chief financial officer at Magellan Navigation, Inc., a portable GPS navigation consumer electronics company, from August 2008 to June 2009, and as chief operating officer and chief financial officer at Aliph, Inc., a consumer Bluetooth telephony device company, from April 2008 to August 2008. Prior to that, Mr. Furr was at Adobe Systems, Inc., a computer software company, where he served as a senior vice president from May 2007 to January 2008, interim chief information officer from November 2006 to May 2007, and as executive vice president and chief financial officer from May 2006 to November 2006. Before joining Adobe Systems, Inc., Mr. Furr spent 13 years at Sanmina-SCI Corporation, an electronics manufacturing services provider, where he served as president and chief operating officer from 1996 to 2005 and as executive vice president and chief financial officer from 1992 to 1996. Mr. Furr served as a director of Sanmina-SCI Corporation from 1998 until 2005. Mr. Furr holds a bachelor’s degree in Business Administration from the University of Oklahoma and is a certified public accountant.

Bill Kurtz has served as our Chief Commercial Officer since April 2015 and served as our Chief Financial Officer from March 2008 to April 2015. Previously, Mr. Kurtz served in the roles of chief operations officer or chief financial officer of several technology companies, including Scient Corporation, a provider of professional services, 3PARdata, Inc., a data storage company, and Novellus Systems, Inc., a global semiconductor equipment company, and also held senior financial management positions at AT&T Inc., a telecommunications company. Mr. Kurtz was a member of the board of directors of PMC-Sierra Inc., including as the chair of the audit committee, until it was acquired by Microsemi Corporation in January 2016. Mr. Kurtz holds a bachelor’s degree in Commerce from Rider University and a M.S. in Management Sciences from Stanford University.

Susan Brennan has served as our Chief Operations Officer since November 2013. Prior to joining Bloom Energy, Ms. Brennan served as vice president of manufacturing – Smyrna and Decherd at Nissan North America, Inc., an automobile company, from October 2008 to November 2013. She also previously served as director of global manufacturing at Ford Motor Company, an automobile company, and in other corporate and manufacturing management roles at Ford Motor Company, an automotive manufacturer, Visteon Corporation, a global automotive electronics supplier, and Douglas & Lomason Company, an automotive parts supplier. Ms. Brennan has served as a member of the board of directors of Senior PLC since January 2016. Ms. Brennan holds a B.S. in Microbiology from the University of Illinois, Urbana-Champaign and an M.B.A. from the University of Nebraska, Omaha.

Swaminathan Venkataraman has served as our Executive Vice President of Engineering and Chief Technology Officer since December 2003. He has authored or co-authored several patents in the areas of solid oxide fuel cell technology, fuel processing and heat integration and control systems. Prior to joining Bloom Energy, Mr. Venkataraman was a Principal Technologist at Aspen Technology, Inc., a provider of supply chain management software and professional services, from 1987 to 2003, where he led the commercial development of high end design, simulation and optimization software for the chemical and petrochemical industries. Mr. Venkataraman holds a bachelor’s degree in Chemical Engineering from the National Institute of Technology, Tiruchirappali and a Ph.D. in Chemical Engineering from Clarkson University.

Matt Ross has served as our Chief Marketing Officer since October 2011. He previously served in various executive roles at several global marketing services providers. These include McCann Worldgroup, where he served as chief executive officer of Global Microsoft Brands and president of McCann Worldgroup San Francisco, and Ogilvy & Mather Worldwide, where he held roles including chief operating officer and managing director of IBM Brand Services. Mr. Ross holds a B.S. in Business Administration from San Francisco State University.

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William Thayer has served as our Executive Vice President of Sales since September 2005. Before joining Bloom Energy, Mr. Thayer served in a variety of senior leadership, management and sales roles at American Power Conversion Corporation, a provider of power supplies. Mr. Thayer graduated from the U.S. Naval Academy with a B.S. in General Engineering and served for ten years as a Surface Warfare Officer in the U.S. Navy before being assigned to the Naval War College. He also holds an M.B.A. from the University of Rhode Island.

David Barber has served as our Executive Vice President and Chief People Officer since July 2008. Prior to joining Bloom Energy, Mr. Barber served as vice president of human resources at Good Technology, Inc., a mobile device management products company, from 2004 to 2008 and as vice president of human resources at Medicalogic / Medscape, Inc., a provider of digital health records software and healthcare information, from 1999 to 2002. From 1986 to 1999 he held a variety of human resources-related positions at Calico Commerce, Netscape Communication and Apple Computers. Mr. Barber holds a B.S. in Finance from San Jose State University.

Shawn Soderberg has served as our Executive Vice President, General Counsel and Secretary since January 2016. Before joining us, Ms. Soderberg was the executive vice president, general counsel and secretary of Bio-Rad Laboratories, a global medical technology provider for the life science and clinical diagnostics industries from 2013 to 2016. Prior to that, Ms. Soderberg was the senior vice president, general counsel and secretary of Aricent Group, a global design and software engineering services and product company, from 2006 to 2013; managing director and general counsel of H&Q Asia Pacific, a private equity firm, from 2000 to 2006; vice president, general counsel and secretary of Oak Technology, a semiconductor and embedded solutions provider for the optical storage and the digital home entertainment market, from 1996 to 2000; and vice president and general counsel of Microtec Research, Inc., a software provider for embedded systems, from 1994 to 1996. Prior to Ms. Soderberg’s general counsel experience, she practiced in a law firm environment. Ms. Soderberg holds a B.S. in Accounting from the University of Santa Clara, a J.D. from Seattle University School of Law and an LL.M. in Taxation from New York University.

Glen Griffiths has served as our Executive Vice President of Quality, Reliability and Sustainability since December 2014. Before joining Bloom Energy, Mr. Griffiths served as the chief quality officer of Hewlett Packard, a technology company specializing in printing, personal computing, software, services and IT infrastructure, from December 2011 until December 2014 and as the vice president of global engineering from December 2008 to December 2011. He holds a B.Sc. in Engineering from UK Open University, a M.Sc. in Reliability, Maintainability and Supportability Engineering from Exeter University and an M.B.A. from UK Open University.

Non-Employee Directors

Steve Case has served as a member of our board of directors since September 2014. Mr. Case has also served as chairman and chief executive officer of Revolution LLC, an investment firm, since April 2005; as a partner of Revolution Growth II, LP, a growth-stage investment firm, since 2011; as a partner of Revolution Ventures II, LP, an early-stage technology investment firm, since 2013; and as chairman of Exclusive Resorts LLC, a membership-based luxury real estate company, since November 2004. Mr. Case served on the board of directors of Zipcar, Inc., a provider of car sharing and car club service, from December 2010 to March 2013; was chairman of the board of Time Warner, Inc., a media company, from January 2001 to May 2003; and was chairman of the board and chief executive officer of America Online, Inc., an interactive services company, from 1995 to January 2001 and was its chief executive officer from 1993 to 1995. He has served as a director of Maui Land & Pineapple Company, Inc., a public real estate company, since December 2008. He is also chairman of the Case Foundation, a philanthropic foundation. Mr. Case holds a B.A. in Political Science from Williams College. Mr. Case was selected to serve as a member of our board of directors due to his extensive experience with technology companies and his experience as both an executive officer and director of other public companies.

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L. John Doerr has served as a member of our board of directors since May 2002. Mr. Doerr has been a General Partner of Kleiner Perkins Caufield & Byers, a venture capital firm, since August 1980. Mr. Doerr has also been a member of the board of directors of Google Inc., a global technology company, since May 1999; Amyris, Inc., a renewable products company, since May 2006; and Zynga, Inc., a provider of social game services, since April 2013. Mr. Doerr was previously a director of Amazon.com, Inc., an e-commerce company, from 1996 to 2010. Mr. Doerr holds a B.S. in Electrical Engineering and an M.S. in Electrical Engineering and Computer Science from Rice University and an M.B.A. from Harvard Business School. Mr. Doerr was selected to serve as a member of our board of directors due to his extensive experience with technology companies.

General Colin L. Powell, USA (Retired) has served a member of our board of directors since January 2009. General Powell served as the 65^th U.S. Secretary of State from January 2001 to January 2005. He served 35 years in the U.S. Army, rising to the rank of Four-Star General and from 1989 to 1993 served as the 12^th Chairman of the Joint Chiefs of Staff. General Powell has also been a member of the board of directors of Salesforce.com, Inc., a global cloud computing company, since January 2015. He is the founder of the Colin Powell Center for Policy Studies at his alma mater, the City College of New York. He is also the founder and chairman emeritus of the America’s Promise Alliance, a nonprofit organization advocating for the strength and well-being of America’s children and youth. General Powell was selected to serve as a member of our board of directors due to his extensive leadership experience.

T.J. Rodgers has served as a member of our board of directors since February 2003. Mr. Rodgers is founder, president, chief executive officer and a director of Cypress Semiconductor Corporation, a semiconductor company. He sits on the board of directors of Cypress’s internal subsidiaries, AgigA Tech, Inc. and Deca Technologies Inc. He has also been a member of the board of directors of Enovix Corp., an energy storage technology company, since 2012. He is a former member of the board of trustees of Dartmouth College, his alma mater. Mr. Rodgers was a Sloan scholar at Dartmouth, where he graduated as salutatorian with a double major in physics and chemistry. He attended Stanford University on a Hertz fellowship, earning a M.S. and a Ph.D. in Electrical Engineering. At Stanford, Mr. Rodgers invented, developed and patented VMOS technology. He managed the MOS memory design group at American Megatrends Incorporation, a company specializing in computer hardware and firmware, from 1975 to 1980 before moving to Advanced Micro Devices (AMD), a developer of computer processors and related technologies for business and consumer markets, where he ran AMD’s static RAM product group until 1982, when he founded Cypress Semiconductor Corporation. Mr. Rodgers was selected to serve as a member of our board of directors due to his extensive experience with technology companies, expert technical and analytical skills and long-term executive experience.

Scott Sandell has served as a member of our board of directors since August 2003. Mr. Sandell is a General Partner at New Enterprise Associates, Inc., or NEA, a venture capital firm, and head of NEA’s technology investing practice. Mr. Sandell also leads NEA’s investing activities in China. Prior to joining NEA in 1996, Mr. Sandell worked as a product manager for Windows 95 at Microsoft Corporation, a software products and services company. Mr. Sandell started his career at the Boston Consulting Group, a global management consulting firm, and later joined C-ATS Software, Inc., a software development company. Mr. Sandell currently serves on the boards of various private companies. He previously served on the boards of NetIQ Corporation, WebExCommunications, Inc., Data Domain, Inc., Tableau Software, Inc., Fusion-io, Inc. and Spreadtrum Communications, Inc. Mr. Sandell is a member of the board of directors of the National Venture Capital Association, a trade organization for venture capital and private equity firms. Mr. Sandell holds an A.B. from Dartmouth College and an M.B.A. from Stanford University. Mr. Sandell was chosen to serve as a member of our board of directors due to his extensive experience with a wide range of technology companies and the venture capital industry.

Peter Teti has served as a member of our board of directors since November 2015. Mr. Teti was nominated to serve on our board by Alberta Investment Management Corporation, an institutional investment fund management company, where he is the senior vice president of Private Equity and Relationship Investing. Prior to joining Alberta Investment Management Corporation in 2012, Mr. Teti served as managing director, Investment Banking at N.M. Rothschild & Sons, an investment banking company, from 2002 to 2012. Mr. Teti holds a B.A. in Commerce from

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Queen’s University. Mr. Teti was chosen to serve as a member of our board of directors due to his extensive experience with a wide range of technology companies and his experience in private equity.

Eddy Zervigon has served as a member of our board of directors since October 2007. Mr. Zervigon is currently a Principal at the investment firm Alta Loma Energy. From 1997 to 2012, Mr. Zervigon was a managing director at Morgan Stanley & Co. LLC, a global financial services firm, in its Principal Investments Group for fourteen years. Prior to joining Morgan Stanley, Mr. Zervigon was a certified public accountant at Coopers & Lybrand (now PricewaterhouseCoopers LLP), a public accounting firm. He is currently a director of DigitalGlobe, Inc., a builder and operator of satellites for digital imaging, where he has served as a member of the audit and compensation committees since 2014. He has previously served as a board member of MMCinemas, Impsat Fiber Networks, Inc., TVN Entertainment Corporation and Stadium Capital. Mr. Zervigon has a B.A. in accounting and a master’s degree in tax from Florida International University and an M.B.A. from the Amos Tuck School of Business at Dartmouth College. Mr. Zervigon was chosen to serve on our board of directors because he brings to our board of directors his significant institutional knowledge regarding our company and significant financial and transactional experience.

Election of Officers

Our executive officers are elected by, and serve at the discretion of, our board of directors. There are no familial relationships among our directors and executive officers.

Board of Directors Composition

Current Board of Directors

Under our bylaws as in effect prior to the completion of this offering, our board of directors may set the authorized number of directors. Our board of directors has set the authorized number of directors as eight. Our board of directors currently consists of eight members with no vacancies.

Pursuant to our eighth amended and restated voting agreement dated as of June 30, 2011, Messrs. Doerr, Sandell, Zervigon, Case, Powell, Rodgers, Teti and Sridhar have been designated to serve as members of our board of directors. Pursuant to that agreement, Mr. Doerr was designated as the representative of our Series A preferred stock, Mr. Sandell was designated as the representative of our Series B preferred stock, Mr. Zervigon was designated as the representative of our Series E preferred stock, Mr. Teti was designated as the representative of our Series G preferred stock, Mr. Sridhar was designated as the person currently serving as our Chief Executive Officer, and Messrs. Case, Powell and Rodgers were designated jointly by agreement of the director representatives of our Series A and Series B preferred stock as independent industry representatives. The eighth amended and restated voting agreement will terminate in connection with this offering and there will be no contractual obligations regarding the election of our directors.

After this offering, the number of directors will be fixed by our board of directors, subject to the terms of our restated certificate of incorporation and amended and restated bylaws that will become effective immediately prior to the completion of this offering. Currently serving members of our board of directors will continue to serve as directors until their death, resignation, or removal or until their successors are duly elected by the holders of our common stock.

Classified Board of Directors

Our restated certificate of incorporation that will be in effect immediately prior to the completion of this offering provides that, immediately after the completion of this offering, our board of directors will be divided into three classes with staggered three-year terms. Upon expiration of the term of a class of directors, directors for that class will be elected for three-year terms at the annual meeting of stockholders in the year in which that

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term expires. As a result, only one class of directors will be elected at each annual meeting of our stockholders, with the other classes continuing for the remainder of their respective three-year terms. Each director’s term continues until the election and qualification of his or her successor, or his or her earlier death, resignation or removal. Our current directors will be divided among the three classes as follows:

• the Class I directors will be                     ,                     and                     , and their terms will expire at the annual meeting of stockholders to be held in 2017;

• the Class II directors will be                     and                     , and their terms will expire at the annual meeting of stockholders to be held in 2018; and

• the Class III directors will be                     and                     , and their terms will expire at the annual meeting of stockholders to be held in 2019.

So long as our board of directors is classified, only our board of directors may fill vacancies on our board. Any additional directorships resulting from an increase in the number of directors will be distributed among the three classes so that, as nearly as possible, each class will consist of one-third of the total number of directors.

The classification of our board of directors may have the effect of delaying or preventing changes in our control or management. See the section titled “Description of Capital Stock—Anti-Takeover Provisions— Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws Provisions” for additional information.

Director Independence

The listing rules of the                             generally require that a majority of the members of a listed company’s board of directors be independent within specified periods following the closing of an initial public offering. In addition, the listing rules generally require that, subject to specified exceptions, each member of a listed company’s audit, compensation, and nominating and governance committees be independent.

With the exception of General Powell (Retired), our board of directors has determined that none of our non-employee directors has a material relationship with us and that each of these directors is “independent” as that term is defined under the rules of the                     . In making this determination, our board of directors considered the relationships that each nonemployee director has with us and all other facts and circumstances our board of directors deemed relevant in determining their independence, including the beneficial ownership of our capital stock by each non-employee director, and the transactions described in the section titled “Related-Party Transactions.”

Lead Independent Director

Our board of directors has appointed                     to serve as our lead independent director upon the completion of this offering. As lead independent director, Mr.                     will preside over periodic meetings of our independent directors, serve as a liaison between the chairperson of our board of directors and the independent directors, and perform such additional duties as our board of directors may otherwise determine and delegate.

Committees of Our Board of Directors

Our board of directors has established an audit committee, a compensation and organization development committee and a nominating and governance committee. The composition and responsibilities of each committee are described below. Members serve on these committees until their resignations or until otherwise determined by our board of directors. Prior to the completion of this offering, our board of directors will adopt a charter for each of these committees. Following the completion of this offering, copies of the charters for each committee will be available without charge on the Investor Relations portion of our website.

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Audit Committee

Our audit committee is comprised of Mr.                     , who is the chair of the audit committee, Mr.                     and Mr.                         . Each member of our audit committee is independent under the current and SEC rules and regulations and we intend to comply with the requirement to have a minimum of three members on our audit committee within the applicable transition period. Each member of our audit committee is financially literate as required by current                     listing standards. In addition, our board of directors has determined that Mr.                     is an audit committee financial expert within the meaning of Item 407(d) of Regulation S-K promulgated under the Securities Act. Our audit committee will, among other things:

• select a qualified firm to serve as the independent registered public accounting firm to audit our financial statements;

• help to ensure the independence and performance of the independent registered public accounting firm;

• discuss the scope and results of the audit with the independent registered public accounting firm, and review, with management and the independent accountants, our interim and year-end operating results;

• develop procedures for employees to submit concerns anonymously about questionable accounting or audit matters;

• review our policies on risk assessment and risk management;

• obtain and review a report by the independent registered public accounting firm at least annually, that describes our internal quality-control procedures, any material issues with such procedures, and any steps taken to deal with such issues;

• approve (or, as permitted, pre-approve) all audit and all permissible non-audit services, other than de minimis non-audit services, to be performed by the independent registered public accounting firm; and

• review related-party transactions and proposed waivers of our code of conduct.

Compensation and Organization Development Committee

Our compensation and organization development committee is comprised of Mr.                         , who is the chair of the compensation and organization development committee, Mr.                     and Mr.                     . The composition of our compensation and organization development committee meets the requirements for independence under current                     and SEC rules and regulations. Each member of this committee is also a nonemployee director, as defined pursuant to Rule 16b-3 promulgated under the Securities Exchange Act of 1934, as amended, (the Exchange Act), and an outside director, as defined pursuant to Section 162(m) of the Internal Revenue Code of 1986, as amended, or the Code. The purpose of our compensation and organization development committee is to discharge the responsibilities of our board of directors relating to compensation of our executive officers and evaluation of the performance of our senior leadership team. Our compensation and organization development committee will, among other things:

• evaluate the performance of our executive officers, including the chief executive officer;

• periodically review and make recommendations regarding the reporting structure within our executive officer team, and the effectiveness and efficiency of the team;

• determine, or make recommendations to our board of directors regarding, the compensation of our executive officers;

• administer our stock and equity incentive plans;

• make recommendations to our board of directors regarding incentive compensation and equity plans; and

• review general policies relating to compensation and benefits of our employees.

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Nominating and Governance Committee

The nominating and governance committee is comprised of Mr.                     , who is the chair of the nominating and governance committee, Mr.                     and Mr.                    . The composition of our nominating and governance committee meets the requirements for independence under current                     and SEC rules and regulations. Our nominating and governance committee will, among other things:

• identify, evaluate, select and make recommendations to our board of directors regarding nominees for election to our board of directors and its committees;

• evaluate the performance of our board of directors and of individual directors;

• consider and make recommendations to our board of directors regarding the composition of our board of directors and its committees;

• review developments in corporate governance practices;

• evaluate the adequacy of our corporate governance practices and reporting; and

• develop and make recommendations to our board of directors regarding corporate governance guidelines and matters.

Code of Business Conduct and Ethics

We have adopted a code of business conduct and ethics that is applicable to all of our employees, officers and directors, and we have also adopted a code of ethics for principal executives and senior financial officers.

Compensation Committee Interlocks and Insider Participation

None of the members of our compensation and organization development committee is or has been an officer or employee of our company. None of our executive officers has served as a member of the board of directors, or as a member of the compensation or similar committee, of any entity that has one or more executive officers who served on our board of directors or compensation and organization development committee during 2015.

Non-Employee Director Compensation

No compensation was paid to our non-employee members of our board of directors during 2015 other than $200,000 in consulting fees to General Powell (Retired).

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EXECUTIVE COMPENSATION

2015 Summary Compensation Table

The following table presents summary information regarding the total compensation awarded to, earned by, and paid to our principal executive officer and each of our named executive officers during the last completed fiscal year. These individuals are our named executive officers for 2015.

Name and Principal Position	Salary(1) ($)		Bonus ($)		Stock Awards ($)			Option Awards (3) ($)		Non-Equity Incentive Plan Compensation(4) ($)		All Other Compensation(5) ($)		Total ($)
KR Sridhar, Founder and Chief Executive Officer		500,000		—		—			4,364,080		174,966		2,360		5,041,406
Randy Furr, Chief Financial Officer		134,616		—		120,143	(2)		4,637,290		60,233		1,645		4,953,927
Susan Brennan, Chief Operations Officer		307,077		—		442,713	(2)		218,204		156,950		1,262		1,126,206

⁽¹⁾  The amounts reported in the Salary column include regular salary and retroactive pay for salary increases during the year.

⁽²⁾  The amounts reported represent the aggregate grant date fair value of RSUs granted to the named executive officer during 2015 as computed in accordance with Accounting Standards Codification (ASC) 718. The grant date fair value of the RSUs is set forth in Note 24 to our consolidated financial statements. Note that the amounts reported in this column reflect the accounting cost for these RSUs, and do not correspond to the actual economic value that our named executive officers may receive from the RSUs.

⁽³⁾  The amounts reported represent the aggregate grant date fair value of the stock options granted to our named executive officers during 2015 as computed in accordance with ASC 718. The assumptions used in calculating the grant date fair value of the stock options reported in this column are set forth in Note 24 to our consolidated financial statements. Note that the amounts reported in this column reflect the accounting cost for these stock options, and do not correspond to the actual economic value that our named executive officers may receive from the options.

⁽⁴⁾  The amounts reported represent the amount earned and payable under the 2015 annual bonus plan based on each named executive officer’s target bonus opportunity and pro-rated for the number of days he or she was employed with us in 2015. These amounts were partially paid in 2015 with the remaining amount paid in the following calendar year.

⁽⁵⁾  Represents group term life insurance premiums.

Offer Letters and Employment Arrangements

All of our named executive officers are employed on an at-will basis, with no fixed term of employment. The initial terms and conditions of employment for each of our named executive officers are set forth in written offer letters. Each of our named executive officers has also executed our standard form of confidential information, arbitration and invention assignment agreement. In addition, certain of our named executive officers have been granted awards under our 2002 Equity Incentive Plan and 2012 Equity Incentive Plan, which provide for certain accelerated vesting in connection with a change of control. Such accelerated vesting is described in greater detail in “—Potential Payments Upon Termination or Change in Control” and “—Employee Benefit Plans”.

Potential Payments Upon Termination or Change in Control

Under the terms of employment agreement with Randy Furr, if his employment is terminated without cause or by him for good reason within 12 months following a change of control, any unvested equity incentive awards at such time shall immediately accelerate and vest for an additional 12 months, unless additional acceleration is provided in the change in control agreement.

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2015 Outstanding Equity Awards at Fiscal Year-End Table

The following table presents, for each of our named executive officers, information regarding outstanding equity awards held as of December 31, 2015.

					Option Awards								Stock Awards
Name	Grant Date				Option Awards – Number of Securities Underlying Unexercised Options (#) Exercisable		Option Awards – Number of Securities Underlying Unexercised Options (#) Unexercisable		Option Awards – Option Exercise Price ($)		Option Awards – Option Expiration Date		Stock Awards – Number of Unearned Shares That Have Not Vested (#)		Stock Awards – Market or Payout Value of Unearned Shares That Have Not Vested ($)
KR Sridhar		8/13/2007	(1	)		922,029		—		1.26		8/13/2017		—		—
		6/10/2008	(1	)		771,363		—		1.45		6/10/2018		—		—
		6/2/2011	(1	)		350,000		—		13.70		6/2/2021		—		—
		8/2/2012	(1	)		861,666		238,334		20.23		8/2/2022		—		—
		9/11/2015	(2	)		83,333		316,667		20.59		9/10/2025		—		—
Randy Furr		5/14/2015	(3	)		—		350,000		20.59		5/13/2025		—		—
		5/14/2015	(4	)		—		—		—		—		5,835		120,143
		9/11/2015	(1	)		6,666		43,334		20.59		9/11/2025		—		—
Susan Brennan		11/7/2013	(3	)		83,333		116,667		20.54		11/6/2023		—		—
		2/12/2015	(4	)		—		—		—		—		1,505		30,913
		9/11/2015	(1	)		1,665		18,335		20.59		9/10/2025		—		—
		9/11/2015	(5	)		—		—		—		—		20,000		411,800

⁽¹⁾  These stock options vest evenly over a five-year period with 1/60th of the shares of common stock underlying the options vesting each month from the vesting commencement date, subject to continuous service to us.

⁽²⁾  These stock options vest evenly over a two-year period with 1/24 of the total shares of common stock underlying the option vesting each month from the vesting commencement date, subject to continuous service to us.

⁽³⁾  These stock options vest over a five-year period as follows: 20% of the shares of common stock underlying the options vest on the first anniversary of the vesting commencement date and 1/60th of the shares of common stock underlying the options vest monthly thereafter, subject to continuous service to us.

⁽⁴⁾  The shares are represented by restricted stock units pursuant to which 100% of the units vest upon the earlier of the six-month anniversary of our initial public offering or the closing of a sale event, subject to continuous service to us.

⁽⁵⁾  The shares are represented by restricted stock units pursuant to which 50% of the units vest upon the earlier of the six-month anniversary of our initial public offering or the closing of a sale event, 25% of the units vest on the one year anniversary, and the remaining 25% of the units vest on the second anniversary of the initial vesting event, subject to continuous service to us.

Employee Benefit Plans

2002 Stock Plan

Our board of directors adopted and the stockholders approved our 2002 Stock Plan (the 2002 Plan) in April 2002. The 2002 Plan was amended in June 2011. The 2002 Plan was terminated in August 2012, upon our adoption of the 2012 Equity Incentive Plan (2012 Plan).

The 2002 Plan provides for the grant of both incentive stock options, which qualify for favorable tax treatment to their recipients under Section 422 of the Code, and non-statutory stock options, as well as for the issuance of restricted stock. We may grant incentive stock options only to our employees. We may grant non-statutory stock options, as well as issue shares of restricted stock, to our employees, officers, directors and consultants.

The exercise price of each incentive stock option must be at least equal to the fair market value of our common stock on the date of grant. The maximum permitted term of options granted under our 2002 Plan is ten years. However, the exercise price of incentive stock options granted to 10% stockholders must be at least equal to 110% of the fair market value of our common stock on the date of grant and the maximum permitted term of options granted to 10% stockholders is five years.

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In the event we are a party to a merger or consolidation, the 2002 Plan provides that (i) if the surviving entity agrees to assume the outstanding awards under the 2002 Plan, such awards shall be so assumed, provided that any outstanding award which remains entirely unvested shall be partially accelerated and vested, and (ii) if the surviving entity declines to assume the outstanding awards under the 2002 Plan, all such outstanding awards shall be accelerated in full and fully vested and exercisable.

In August 2012, in connection with our adoption of the 2012 Plan, shares authorized for issuance under the 2002 Plan were cancelled (except for those shares reserved for issuance upon exercise of outstanding stock options). Subject to adjustment for certain changes in our capital structure, the maximum aggregate number of shares of common stock reserved for issuance under the 2002 Plan is 16,193,334. As of December 31, 2015, options to purchase 6,429,555 shares were outstanding under the 2002 Plan and no shares were available for future grant. As of December 31, 2015, the weighted average exercise price of outstanding options under the 2002 Plan was $8.47 per share. Any outstanding stock options granted under the 2002 Plan will remain outstanding, subject to the terms of our 2002 Plan and applicable award agreements, until such shares are issued under those awards (by exercise of stock options) or until the awards terminate or expire by their terms.

2012 Equity Incentive Plan

Our board of directors adopted our 2012 Equity Incentive Plan in August 2012. Our stockholders approved the 2012 Plan in July 2013.

The 2012 Plan provides for the grant of incentive stock options, non-statutory stock options, stock appreciation rights, restricted stock awards, RSU awards, performance-based stock awards and other forms of equity compensation, or collectively, stock awards, all of which may be granted to employees, including officers, and to non-employee directors and consultants. We may grant incentive stock options only to our employees. We may grant non-statutory stock options, RSUs and stock appreciation rights, as well as issue shares of restricted stock, to our employees, officers, directors and consultants.

The exercise price of each incentive stock option must be at least equal to the fair market value of our common stock on the date of grant. However, the exercise price of incentive stock options granted to 10% stockholders must be at least equal to 110% of the fair market value of our common stock on the date of grant. The maximum permitted term of options granted under our 2012 Plan is ten years. However, the maximum permitted term of options granted to 10% stockholders is five years.

RSUs are awards representing the right to receive shares of our common stock at a specified date in the future, subject to forfeiture of that right because of a termination of employment or service or failure to achieve certain performance conditions.

Stock appreciation rights provide for a payment, or payments, in cash or shares of our common stock, to the holder based upon the difference between the fair market value of our common stock on the date of exercise and the stated exercise price at grant up to a maximum amount of cash or number of shares. Stock appreciation rights may vest based on time or achievement of performance conditions.

In the event we are a party to a merger or consolidation, the 2012 Plan provides that our board of directors, in its discretion, may take one or more of the following actions: (i) provide for the acceleration of any time period relating to the exercise or realization of an award, (ii) provide for the purchase of an award upon the participant’s request for an amount of cash or other property that could have been received upon the exercise or realization of an award immediately prior to the consummation of the merger or consolidation, had the award been currently exercisable or payable, (iii) adjust the terms of the award in a manner determined by the board of directors, (iv) cause the award to be assumed, or new rights substituted therefor, by another entity or (v) make such other provision as the board of directors may consider equitable and in our best interests.

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The number of shares of our common stock reserved for issuance under the 2012 Plan increases automatically to include (i) any shares issued under the 2002 Plan after the effective date of the 2012 Plan pursuant to the exercise of stock options that are, after the effective date of the 2012 Plan, forfeited, (ii) any shares issued under the 2002 Plan that are repurchased by us at the original issue price and (iii) any shares that are subject to stock options or other awards under the 2002 Plan that are used to pay the exercise price of an option or to satisfy the tax withholding obligations related to any award. The maximum number of shares that may be issued pursuant to the exercise of stock options under the 2012 Plan is 30,000,000 shares.

As of December 31, 2015, we had reserved 8,224,270 shares of our common stock for issuance under our 2012 Plan. As of December 31, 2015, options to purchase 6,231,084 and restricted stock units to convert to 556,303 of these shares remained outstanding under the 2012 Plan. The stock options outstanding had a weighted average exercise price of $20.47 per share. As of December 31, 2015, 1,419,954 shares remained available for future grant.

Our 2012 Plan will be terminated upon the date immediately prior to the date of this prospectus. As a result, we will not grant any additional stock options under the 2012 Plan following that date, and the 2012 Plan will terminate at that time. However, any outstanding stock options, stock appreciation rights and RSUs granted under the 2012 Plan will remain outstanding, subject to the terms of our 2012 Plan and applicable award agreements, until such shares are issued under those awards (by exercise of stock options or settlement of RSUs or stock appreciation rights) or until the awards terminate or expire by their terms.

2016 Equity Incentive Plan

In            , 2016, our board of directors adopted and our stockholders approved our 2016 Equity Incentive Plan (2016 Plan). The 2016 Plan will become effective on the date of this prospectus and will serve as the successor to our 2012 Plan. We reserved              shares of our common stock to be issued under our 2016 Plan. The number of shares reserved for issuance under our 2016 Plan will increase automatically on the first day of January of each of 2017 through 2026 by the number of shares of common stock equal to            % of the total outstanding shares of our common stock as of the immediately preceding December 31 (rounded to the nearest whole share). However, our board of directors may reduce the amount of the increase in any particular year. In addition, the following shares of our common stock will be available for grant and issuance under our 2016 Plan:

• shares subject to awards granted under our 2016 Plan that cease to be subject to the awards for any reason other than exercises of stock options or stock appreciation rights;

• shares issued or subject to awards granted under our 2016 Plan that are subsequently forfeited or repurchased by us at the original issue price;

• shares surrendered, cancelled, or exchanged for cash or a different award (or combination thereof);

• shares reserved but not issued or subject to outstanding awards under our 2012 Plan on the date immediately prior to the date of this prospectus; and

• shares subject to awards under our 2012 Plan that are used to pay the exercise price of a stock option or withheld to satisfy the tax withholding obligations related to any award.

Our 2016 Plan authorizes the award of stock options, restricted stock awards, stock appreciation rights, RSUs, performance awards and stock bonuses. No person will be eligible to receive more than            shares in any calendar year under our 2016 Plan other than a new employee, who will be eligible to receive no more than            shares under the plan in the calendar year in which the employee commences employment.

Our 2016 Plan will be administered by our compensation and organization development committee, all of the members of which are outside directors as defined under applicable federal tax laws, or by our board of

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directors acting in place of our compensation and organization development committee. The compensation and organization development committee will have the authority to construe and interpret our 2016 Plan, grant awards and make all other determinations necessary or advisable for the administration of the plan.

Our 2016 Plan will provide for the grant of awards to our employees, directors, consultants, independent contractors and advisors, provided the consultants, independent contractors, directors and advisors render services not in connection with the offer and sale of securities in a capital-raising transaction. The exercise price of stock options must be at least equal to the fair market value of our common stock on the date of grant.

We anticipate that in general, stock options will vest over a four-year period. Stock options may vest based on time or achievement of performance conditions. Our compensation and organization development committee may provide for stock options to be exercised only as they vest or to be immediately exercisable with any shares issued on exercise being subject to our right of repurchase that lapses as the shares vest. The maximum term of stock options granted under our 2016 Plan is ten years.

A restricted stock award is an offer by us to sell shares of our common stock subject to restrictions, which may vest based on time or achievement of performance conditions. The price, if any, of a restricted stock award will be determined by the compensation and organization development committee. Unless otherwise determined by the compensation and organization development committee at the time of award, vesting will cease on the date the holder no longer provides services to us and unvested shares will be forfeited to or repurchased by us. Stock appreciation rights provide for a payment, or payments, in cash or shares of our common stock, to the holder based upon the difference between the fair market value of our common stock on the date of exercise and the stated exercise price at grant up to a maximum amount of cash or number of shares. Stock appreciation rights may vest based on time or achievement of performance conditions.

RSUs represent the right to receive shares of our common stock at a specified date in the future, subject to forfeiture of that right because of termination of employment or failure to achieve certain performance conditions. If a RSU has not been forfeited, then on the date specified in the RSU agreement, we will deliver to the holder of the RSU whole shares of our common stock (which may be subject to additional restrictions), cash or a combination of our common stock and cash.

Performance awards cover a number of shares of our common stock that may be settled upon achievement of the pre-established performance conditions in cash or by issuance of the underlying shares. These awards are subject to forfeiture prior to settlement due to termination of employment or failure to achieve the performance conditions.

Stock bonuses may be granted as additional compensation for service or performance, and therefore, may not be issued in exchange for cash.

In the event there is a specified type of change in our capital structure without our receipt of consideration, such as a stock split, appropriate adjustments will be made to the number of shares reserved under our 2016 Plan, the maximum number of shares that can be granted in a calendar year and the number of shares and exercise price, if applicable, of all outstanding awards under our 2016 Plan.

Awards granted under our 2016 Plan may not be transferred in any manner other than by will or by the laws of descent and distribution or as determined by our compensation and organization development committee. Unless otherwise permitted by our compensation and organization development committee, stock options may be exercised during the lifetime of the optionee only by the optionee or the optionee’s guardian or legal representative. Stock options granted under our 2016 Plan generally may be exercised for a period of three months after the termination of the optionee’s service to us, for a period of 12 months in the case of death or for a period of six months in the case of disability, or such longer period as our compensation and organization development committee may provide. Stock options generally terminate immediately upon termination of employment for cause.

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Our 2016 Plan provides that, in the event of a sale, lease or other disposition of all or substantially all of our assets or specified types of mergers or consolidations, or a corporate transaction, outstanding awards under our 2016 Plan may be assumed or replaced by any surviving or acquiring corporation; the surviving or acquiring corporation may substitute similar awards for those outstanding under our 2016 Plan; outstanding awards may be settled for the full value of such outstanding award (whether or not then vested or exercisable) in cash, cash equivalents or securities of the successor entity with payment deferred until the date or dates the award would have become exercisable or vested; or outstanding awards may be terminated for no consideration. Our board of directors has the discretion to provide that a stock award under our 2016 Plan will immediately vest as to all or any portion of the shares subject to the stock award at the time of a corporate transaction or in the event a participant’s service with us or a successor entity is terminated actually or constructively within a designated period following the occurrence of the transaction. Stock awards held by participants under our 2016 Plan will not vest automatically on such an accelerated basis unless specifically provided in the participant’s applicable award agreement. In the event of a corporate transaction, the vesting of all awards granted to non-employee directors shall accelerate and such awards shall become exercisable (as applicable) in full upon the consummation of the corporate transaction.

Our 2016 Plan will terminate ten years from the date our board of directors approves the plan, unless it is terminated earlier by our board of directors. Our board of directors may amend or terminate our 2016 Plan at any time. If our board of directors amends our 2016 Plan, it does not need to ask for stockholder approval of the amendment unless required by applicable law.

2016 Employee Stock Purchase Plan

On            , 2016, our board of directors adopted and our stockholders approved our 2016 Employee Stock Purchase Plan (ESPP). The ESPP will become effective on the date of this prospectus. The purpose of the ESPP is to enable eligible employees to purchase shares of our common stock at a discount following the date of this offering. Purchases will be accomplished through participation in discrete offering periods. Our ESPP is intended to qualify under Section 423 of the Code. We initially reserved             shares of our common stock for issuance under our ESPP. The number of shares reserved for issuance under our ESPP will increase automatically on the 1st day of January of each of the first nine years following the first offering date by the number of shares equal to     % of the total outstanding shares of our common stock as of the immediately preceding December 31 (rounded to the nearest whole share). However, our board of directors may reduce the amount of the increase in any particular year. The aggregate number of shares issued over the term of our ESPP will not exceed             shares of our common stock.

Our compensation and organization development committee will administer our ESPP. Our employees generally are eligible to participate in our ESPP if they are employed by us for at least 20 hours per week and more than five months in a calendar year. Employees who are 5% stockholders, or would become 5% stockholders as a result of their participation in our ESPP, are ineligible to participate. We may impose additional restrictions on eligibility. Under our ESPP, eligible employees will be able to acquire shares of our common stock by accumulating funds through payroll deductions between            % and            % of their base compensation. We will also have the right to amend or terminate our ESPP at any time. Our ESPP will terminate on the tenth anniversary of the last day of the first purchase period, unless terminated earlier by our board of directors.

When an initial offering period commences, eligible employees, who participate in the offering period, will automatically be granted a non-transferable option to purchase shares in that offering period. For subsequent offering periods, new participants will be required to enroll in a timely manner. Once an employee is enrolled, participation will be automatic in subsequent offering periods. An employee’s participation automatically ends upon termination of employment for any reason.

Except for the first offering period, each offering period will run for no more than            months, with purchases occurring every            months. The first offering period will begin upon the date of this prospectus

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and will end approximately years following the date of this prospectus. Except for the first purchase period, each purchase period will be for            months. An employee’s participation automatically ends upon termination of employment for any reason.

No participant will have the right to purchase shares of our common stock in an amount, when aggregated with purchase rights under all our employee stock purchase plans that are also in effect in the same calendar year, that have a fair market value of more than $            , determined as of the first day of the applicable purchase period, for each calendar year in which that right is outstanding. In addition, no participant will be permitted to purchase more than            shares of our common stock during any one purchase period or a lesser amount determined by our compensation and organization development committee. The purchase price for shares of our common stock purchased under our ESPP will be             % of the lesser of the fair market value of our common stock on (i) the first trading day of the applicable offering period and (ii) the last trading day of each purchase period in the applicable offering period.

If we experience a change in control transaction, any offering period that commenced prior to the closing of the proposed change in control transaction will be shortened and terminated on a new purchase date. The new purchase date will occur prior to the closing of the proposed change in control transaction, and our ESPP will then terminate on the closing of the proposed change in control.

401(k) Plan

We maintain a tax-qualified 401(k) retirement plan for all employees who satisfy certain eligibility requirements, including requirements relating to age. Under our 401(k) plan, employees may elect to defer up to 60% of eligible compensation, subject to applicable annual Code limits. We do not match any contributions made by our employees, including executives, but have the discretion to do so. We intend for our 401(k) plan to qualify under Section 401(a) and 501(a) of the Code so that contributions by employees to our 401(k) plan, and income earned on those contributions, are not taxable to employees until withdrawn from our 401(k) plan.

Limitation of Liability and Indemnification

Our restated certificate of incorporation, which will become effective immediately prior to the completion of this offering, contains provisions that limit the liability of our directors for monetary damages to the fullest extent permitted by Delaware law. Consequently, our directors will not be personally liable to us or our stockholders for monetary damages for any breach of fiduciary duties as directors, except for liability:

• for any breach of their duty of loyalty to our company or our stockholders;

• for any act or omission not in good faith or that involves intentional misconduct or a knowing violation of law;

• unlawful payments of dividends or unlawful stock repurchases or redemptions as provided in Section 174 of the Delaware General Corporation Law; or

• for any transaction from which they derived an improper personal benefit.

Any amendment to or repeal of these provisions will not eliminate or reduce the effect of these provisions in respect of any act, omission, or claim that occurred or arose prior to that amendment or repeal. If the Delaware General Corporation Law is amended to provide for further limitations on the personal liability of directors of corporations, then the personal liability of our directors will be further limited to the greatest extent permitted by the Delaware General Corporation Law.

Our amended and restated bylaws, which will become effective immediately prior to the completion of this offering, provide that we will indemnify, to the fullest extent permitted by law, any person who is or was a party or is threatened to be made a party to any action, suit, or proceeding by reason of the fact that he or she is or was one of our directors or officers or is or was serving at our request as a director or officer of another corporation,

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partnership, joint venture, trust, or other enterprise. Our amended and restated bylaws provide that we may indemnify to the fullest extent permitted by law any person who is or was a party or is threatened to be made a party to any action, suit, or proceeding by reason of the fact that he or she is or was one of our employees or agents or is or was serving at our request as an employee or agent of another corporation, partnership, joint venture, trust, or other enterprise. Our amended and restated bylaws also provide that we must advance expenses incurred by or on behalf of a director or officer in advance of the final disposition of any action or proceeding, subject to very limited exceptions.

We have also entered into indemnification agreements with each of our directors and executive officers that are broader than the specific indemnification provisions contained in the Delaware General Corporation Law. These indemnification agreements require us, among other things, to indemnify our directors and executive officers against liabilities that may arise by reason of their status or service. These indemnification agreements also require us to advance all expenses incurred by the directors and executive officers in investigating or defending any such action, suit, or proceeding. We believe that these agreements are necessary to attract and retain qualified individuals to serve as directors and executive officers.

The limitation of liability and indemnification provisions in our restated certificate of incorporation and amended and restated bylaws or in these indemnification agreements may discourage stockholders from bringing a lawsuit against our directors for breach of their fiduciary duty. They may also reduce the likelihood of derivative litigation against our directors and officers, even though an action, if successful, might benefit us and other stockholders. Further, a stockholder’s investment may be adversely affected to the extent that we pay the costs of settlement and damage awards against directors and officers as required by these indemnification provisions. At present, we are not aware of any pending litigation or proceeding involving any person who is or was one of our directors, officers, employees, or other agents or is or was serving at our request as a director, officer, employee, or agent of another corporation, partnership, joint venture, trust, or other enterprise, for which indemnification is sought, and we are not aware of any threatened litigation that may result in claims for indemnification.

We have obtained insurance policies under which, subject to the limitations of the policies, coverage is provided to our directors and officers against loss arising from claims made by reason of breach of fiduciary duty or other wrongful acts as a director or officer, including claims relating to public securities matters, and to us with respect to payments that may be made by us to these officers and directors pursuant to our indemnification obligations or otherwise as a matter of law.

Certain of our non-employee directors may, through their relationships with their employers, be insured or indemnified against certain liabilities incurred in their capacity as members of our board of directors.

The underwriting agreement will provide for indemnification by the underwriters of us and our officers, directors, and employees for certain liabilities arising under the Securities Act or otherwise.

Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers, or persons controlling our company pursuant to the foregoing provisions, we have been informed that, in the opinion of the SEC, such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.

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RELATED PARTY TRANSACTIONS

In addition to the director and executive compensation arrangements discussed above under “Executive Compensation,” the following is a description of those transactions since January 1, 2013, that we have participated in where the amount involved exceeded or will exceed $120,000 and in which any of our directors, executive officers, beneficial holders of more than 5% of our capital stock, or any member of the immediate family of or entities affiliated with any of the foregoing persons, had or will have a direct or indirect material interest.

Private Placements

Series G Convertible Preferred Stock Financing

Between June 2012 and January 2014, we sold an aggregate of 27,936,562 shares of Series G convertible preferred stock at a per share purchase price of $25.76 pursuant to a series of stock purchase agreements. Each share of our Series G convertible preferred stock will convert automatically into one share of our common stock immediately prior to completion of this offering.

The following table summarizes the Series G convertible preferred stock purchased by members of our board of directors or their affiliates and holders of more than 5% of our outstanding capital stock:

Name of Stockholder	Bloom Energy Director	Number of Series G Shares		Total Purchase Price ($)
Entities affiliated with New Enterprise Associates (1)	Scott Sandell		975,947		25,140,395
KPCB Holdings, Inc., as nominee (2)	L. John Doerr		390,804		10,067,111
Entities affiliated with Kuwait Investment Authority (3)	—		8,152,172		209,999,951
Entities affiliated with Alberta Investment Management Corporation (4)	Peter Teti		6,022,981		155,151,991
Entities affiliated with Advanced Equities Financial Corp. (5)	—		291,270		7,503,115

⁽¹⁾  New Enterprise Associates 10, L.P. and NEA Ventures 2003, LP (collectively, the NEA Funds), together, hold more than 5% of our outstanding capital stock. Scott Sandell, a member of our board of directors, is the managing general partner of New Enterprise Associates, an affiliate of the NEA Funds.

⁽²⁾  KPCB Holdings, Inc., as nominee, holds more than 5% of our outstanding capital stock. The shares are held in the name of “KPCB Holdings, Inc., as nominee”. L. John Doerr, a member of our board of directors, is a manager of the managing members of certain funds affiliated with Kleiner Perkins Caulfield & Byers that hold shares of our outstanding capital stock (KPCB Funds) and, therefore, may be deemed to share voting and investment power over the shares held by the KPCB Funds. KPCB Holdings, Inc. has no voting, dispositive or pecuniary interest in any such shares.

⁽³⁾  Includes 3,105,589 shares held by the Kuwait Investment Office and 5,046,583 shares held by the Kuwait Investment Authority, which together hold more than 5% of our outstanding capital stock.

⁽⁴⁾  Includes 2,162,249 shares held by 1536053 Alberta Ltd. and 3,860,732 shares held 1536057 Alberta Ltd. (the AIMco Series G Funds). The AIMco Series G Funds, along with other affiliates of Alberta Investment Management Corporation, together hold more than 5% of our outstanding capital stock. Peter Teti, a member of our board of directors, is the Senior Vice President of Private Equity and Relationship Investing of Alberta Investment Management Corporation.

⁽⁵⁾  Affiliates of Advanced Equities Financial Corp., under the management of Spruce Investment Advisors, LLC, whose shares of our Series G convertible preferred stock are aggregated for purposes of the table above include (i) Advanced Equities GreenTech Investments I, LLC, (ii) Advanced Equities GreenTech Investments III-2, LLC, (iii) AEI 2006 Venture Investments I, LLC, (iv) AEI 2006 Venture Investments II, LLC, (v) AEI 2010 CleanTech Ventures I, LLC, (vi) AEI 2010 CleanTech Ventures II, LLC, (vii) AEI Bloom Secondary II, LLC, (viii) AEI Bloom Secondary, LLC, (ix) AEI Bloom X, LLC, (x) AEI GreenTech Investments IV, LLC, (xi) AEI GreenTech Investments VII, LLC, (xii) AEI Project X, LLC and (xiii) AEI Trilogy Fund I, LLC (the AEI Series G Funds). The AEI Series G Funds, along with other affiliates of Advanced Equities Financial Corp., together hold more than 5% of our outstanding capital stock.

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Convertible Promissory Note Financing

Between December 2014 and June 2015, we issued and sold $193.2 million aggregate principal amount of our 8% Notes to certain investors at a purchase price of 100% of the aggregate principal amount thereon, including $100.0 million aggregate principal amount to Kuwait Investment Authority and $10.0 million aggregate principal amount each to Alberta Investment Management Corporation, KPCB Holdings, Inc. and New Enterprise Associates. The 8% Notes bear a fixed interest rate of 8.0%, compounded monthly, and are due at maturity or, at the election of the investor, the accrued interest would be due on each anniversary of the respective original issuance date of the notes. As of December 31, 2015, the outstanding principal and accrued interest on the 8% Notes was $208.6 million. The outstanding principal and accrued interest on each 8% Note will mandatorily convert into shares of our Series G convertible preferred stock at a conversion price per share of $25.76, and each such share of Series G convertible preferred stock will convert automatically into one share of our common stock, immediately prior to completion of this offering.

Registration Rights Agreement

We have entered into an amended and restated registration rights agreement with certain holders of our preferred stock, including T.J. Rodgers, a member of our board of directors, as well as entities affiliated with KPCB Holdings, Inc., New Enterprise Associates, Kuwait Investment Authority, Alberta Investment Management Corporation and Advanced Equities Financial Corp. L. John Doerr, Scott Sandell and Peter Teti, members of our board of directors, are affiliated with KPCB Holdings, Inc., New Enterprise Associates and Alberta Investment Management Corporation, respectively. These stockholders are entitled to rights with respect to the registration of their shares following this offering. See the section titled “Description of Capital Stock—Registration Rights” for additional information.

Indemnification Agreements

We have entered into indemnification agreements with each of our directors and executive officers. The indemnification agreements and our amended and restated bylaws, which will become effective immediately prior to the completion of this offering, will require us to indemnify our directors to the fullest extent not prohibited by Delaware law. Subject to certain limitations, our amended and restated bylaws also require us to advance expenses incurred by our directors and officers. See the section titled “Executive Compensation—Limitation of Liability and Indemnification” for additional information.

Consulting Arrangement

In January 2009, we entered into a consulting agreement with General Colin L. Powell (Retired), a member of our board of directors, pursuant to which General Powell performs certain strategic planning and advisory services for us. Pursuant to this consulting agreement, General Powell receives compensation of $200,000 per year and reimbursement for reasonable expenses.

Review, Approval, or Ratification of Transactions with Related Parties

Our related-person transactions policy adopted by our board of directors and the charter of our audit committee to be adopted by our board of directors and in effect immediately prior to the completion of this offering require that any transaction with a related person that must be reported under applicable rules of the SEC must be reviewed and approved or ratified by our audit committee, unless the related person is, or is associated with, a member of that committee, in which event the transaction must be reviewed and approved by our nominating and governance committee.

Prior to the adoption of our related-person transactions policy, we had no formal, written policy or procedure for the review and approval of related-person transactions. However, our practice has been to have all related-person transactions reviewed and approved by a majority of the disinterested members of our board of directors, including the transactions described above.

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PRINCIPAL AND SELLING STOCKHOLDERS

The following table presents information regarding the beneficial ownership of our common stock as of December 31, 2015, and as adjusted to reflect the sale of the common stock by us and the selling stockholders in this offering assuming no exercise of the underwriters’ option to purchase additional shares, by:

• each stockholder known by us to be the beneficial owner of more than 5% of our outstanding shares of common stock;

• each of our directors;

• each of our named executive officers;

• all of our current directors and executive officers as a group; and

• each other selling stockholder.

We have determined beneficial ownership in accordance with the rules of the SEC. Except as indicated by the footnotes below, to our knowledge, based on the information furnished to us, the persons and entities named in the table below have sole voting and investment power with respect to all shares of common stock that they beneficially own, subject to applicable community property laws. We have deemed shares of our common stock subject to options that are currently exercisable or exercisable within 60 days of December 31, 2015 to be outstanding and to be beneficially owned by the person holding the option for the purpose of computing the percentage ownership of that person but have not treated them as outstanding for the purpose of computing the percentage ownership of any other person.

We have based percentage ownership of our common stock before this offering on 131,314,076 shares of common stock outstanding as of December 31, 2015. Percentage ownership of our common stock after this offering also assumes the sale by us and the selling stockholders of              shares of common stock in this offering. An asterisk (*) below denotes beneficial ownership of less than 1%.

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Unless otherwise indicated, the address of each of the individuals and entities named below is: c/o Bloom Energy Corporation, 1299 Orleans Drive, Sunnyvale, California 94089.

Beneficial Owner	Beneficial Ownership Prior to This Offering					Number of Shares Being Offered	Beneficial Ownership After This Offering
	Shares		%				Shares	%
Named Executive Officers and Directors
KR Sridhar(1)		5,137,054		3.82	%
Randy Furr (2)		8,333		*
Susan Brennan(3)		92,331		*
Steve Case(4)		100,000		*
L. John Doerr(5)		20,890,112		15.91
Colin Powell(6)		175,000		*
T. J. Rodgers(7)		437,500		*
Scott Sandell(8)		11,533,140		8.78
Peter Teti(9)		9,938,293		7.53
Eddy Zervigon(10)		43,195		*
All current executive officers and directors as a group (17 persons)(11)		50,433,031		38.27
Other 5% Stockholders:
Entities affiliated with Alberta Investment Management Corporation(12)		9,938,293		7.53
Entities affiliated with Advanced Equities Financial Corp.(13)		8,922,045		6.78
KPCB Holdings, Inc. as nominee(14)		20,890,112		15.91
Entities affiliated with Kuwait Investment Authority(15)		13,408,258		10.21
Entities affiliated with New Enterprise Associates(16)		11,533,140		8.78
Other Selling Stockholders:

^(*)  Less than one percent (1%).

⁽¹⁾  Represents (i) 1,324,085 shares held by Mr. Sridhar; (ii) 49,704 shares held by KR Sridhar, as Trustee of the KR Sridhar 2008 Annuity Trust AS dated December 18, 2008, (iii) 49,704 shares held by KR Sridhar, as Trustee of the KR Sridhar 2008 Annuity Trust KS dated December 18, 2008, (iv) 83,445 shares held by KR Sridhar, as Trustee of the KR Sridhar 2010 Annuity Trust AS dated April 27, 2010, (v) 83,445 shares held by KR Sridhar, as Trustee of the KR Sridhar 2010 Annuity Trust KS dated April 27, 2010, (vi) 488,280 shares held by The KR Sridhar and Sudha Sarma 2012 Irrevocable Trust and (vii) 3,058,391 shares underlying stock options exercisable within 60 days of December 31, 2015 held by Mr. Sridhar.

⁽²⁾  Represents 8,333 shares underlying stock options exercisable within 60 days of December 31, 2015 held by Mr. Furr.

⁽³⁾  Represents 92,331 shares underlying stock options exercisable within 60 days of December 31, 2015 held by Ms. Brennan.

⁽⁴⁾  Represents 100,000 shares underlying stock options exercisable within 60 days of December 31, 2015 held by Mr. Case.

⁽⁵⁾  Consists of the shares of common stock referenced in footnote (14) below.

⁽⁶⁾  Represents (i) 42,303 shares held by Mr. Powell, (ii) 19,233 shares held by The CLP 3-Year GRAT u/a dtd 9/28/2012, Colin L. Powell, Trustee, (iii) 38,464 shares held by The CLP 6-Year GRAT u/a dtd 9/28/2012, Colin L. Powell, Trustee; and (iv) 75,000 shares underlying stock options exercisable within 60 days of December 31, 2015 held by Mr. Powell.

⁽⁷⁾  Represents (i) 300,000 shares held by Mr. Rodgers and (ii) 137,500 shares underlying stock options exercisable within 60 days of December 31, 2015 held by Mr. Rodgers.

⁽⁸⁾  Consists of the shares of common stock referenced in footnote (16) below.

⁽⁹⁾ Consists of the shares of common stock referenced in footnote (12) below.

⁽¹⁰⁾  Represents (i) 34,195 shares held by Mr. Zervigon and (ii) 9,000 shares held by Eddy Zervigon IRA Account.

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⁽¹¹⁾  Represents (i) 43,683,236 shares, (ii) 4,762,209 shares underlying stock options exercisable within 60 days of December 31, 2015, (iii) 702,823 shares underlying warrants exercisable within 60 days of December 31, 2015 and (iv) 1,284,763 shares issuable upon conversion of the oustanding principal and interest accrued as of December 31, 2015 on 8% Notes held by our executive officers and directors as a group.

⁽¹²⁾  Represents (i) 3,161,986 shares held by 1536053 Alberta Ltd., (ii) 5,645,779 shares held by 1536057 Alberta Ltd., (iii) 330,749 shares underlying warrants exercisable within 60 days of December 31, 2015 held by PE 12GVVC (US Direct) Ltd., (iv) 372,074 shares underlying warrants exercisable within 60 days of December 31, 2015 held by PE 12PXVC (US Direct) Ltd., (v) 198,700 shares issuable upon conversion of the outstanding principal and interest accrued as of December 31, 2015 on 8% Notes held by PE 12GVVC (US Direct) Ltd. and (vi) 223,527 shares issuable upon conversion of the outstanding principal and interest accrued as of December 31, 2015 on 8% Notes held by PE 12PXVC (US Direct) Ltd. (collectively, the AIMCo Funds). Peter Teti, one of our directors, is the Senior Vice President of Private Equity and Relationship Investing of Alberta Investment Management Corporation and, therefore, may be deemed to share voting and investment power over the shares held by the AIMCo Funds. The address of these entities is 1100-10830 Jasper Avenue, Edmonton, Alberta T5J 2B3, Canada.

⁽¹³⁾  Represents (i) 5,656 shares held by Advanced Equities Financial Corp., (ii) 1,652,305 shares held by Advanced Equities GreenTech Investments I, LLC, (iii) 1,274 shares held by Advanced Equities GreenTech Investments III, LLC, (iv) 139,651 shares held by Advanced Equities GreenTech Investments III-2, LLC, (v) 82,770 shares held by Advanced Equities GreenTech Investments IV, LLC, (vi) 247,240 shares held by AEI 2006 Venture Investments I, LLC, (vii) 715,860 shares held by AEI 2006 Venture Investments II, LLC, (viii) 82,729 shares held by AEI 2010 CleanTech Ventures I, LLC, (ix) 4,929 shares held by AEI 2010 CleanTech Ventures I-2, LLC, (x) 174,172 shares held by AEI 2010 CleanTech Ventures II, LLC, (xi) 446,948 shares held by AEI Bloom Secondary II, LLC, (xii) 64,212 shares held by AEI Bloom Secondary, LLC, (xiii) 112,879 shares held by AEI Bloom X, LLC, (xiv) 346,939 shares held by AEI GreenTech Investments III, LLC, (xv) 3,531,920 shares held by AEI GreenTech Investments IV, LLC, (xvi) 424,088 shares held by AEI GreenTech Investments V, LLC, (xvii) 194,079 shares held by AEI GreenTech Investments VII, LLC, (xviii) 346,773 shares held by AEI Project X, LLC, (xix) 95,661 shares held by AEI Trilogy Fund I, LLC and (xx) 251,960 shares underlying warrants exercisable within 60 days of December 31, 2015 held by Advanced Equities Financial Corp. The address of these entities is 311 S. Wacker Drive, Suite 1650, Chicago, IL 60606.

⁽¹⁴⁾  Consists of (i) 7,953,418 shares of common stock held by Kleiner Perkins Caufield & Byers IX-A, L.P., or KPCB IX-A, (ii) 245,539 shares of common stock held by Kleiner Perkins Caufield & Byers IX-B, L.P., or KPCB IX-B, (iii) 7,000,929 shares of common stock held by Kleiner Perkins Caufield & Byers X-A, L.P., or KPCB X-A, (iv) 197,455 shares of common stock held by Kleiner Perkins Caufield & Byers X-B, L.P., or KPCB X-B, (v) 5,064,242 shares of common stock held by individuals and entities associated with Kleiner Perkins Caufield & Byers, including 987,074 shares of common stock held directly by L. John Doerr, a director of the issuer and (vi) 428,529 shares issuable upon conversion of the outstanding principal and interest accrued as of December 31, 2015 on 8% Notes held by KPCB Holdings, Inc., as nominee. All shares are held for convenience in the name of KPCB Holdings, Inc., as nominee, for the accounts of such individuals and entities who each exercise their own voting and dispositive control over such shares. KPCB IX Associates, LLC, or KPCB IX Associates, is the general partner of KPCB IX-A and KPCB IX-B. KPCB X Associates, LLC, or KPCB X Associates, is the general partner of KPCB X-A and KPCB X-B. Brook H. Byers, L. John Doerr, Kevin Compton, Doug Mackenzie, Raymond J. Lane and Theodore E. Schlein, the managers of KPCB IX Associates, share voting and dispositive control over the shares held by KPCB IX-A and KPCB IX-B. Brook H. Byers, L. John Doerr, Kevin Compton, Doug Mackenzie, Raymond J. Lane and Theodore E. Schlein, the managers of KPCB X Associates, share voting and dispositive control over the shares held by KPCB X-A and KPCB X-B. Each manager of KPCB IX Associates and KPCB X Associates disclaims beneficial ownership of the shares held by KPCB IX-A, KPCB IX-B, KPCB X-A and KPCB X-B. The address for the funds affiliated with Kleiner Perkins Caufield & Byers is 2750 Sand Hill Road, Menlo Park, CA 94025.

⁽¹⁵⁾  Represents (i) 6,017,378 shares held by Kuwait Investment Authority, a Kuwaiti public authority established under Kuwaiti Law No. 47/1982 for the purpose of managing, in the name and for the account of the Government of the State of Kuwait, the investments of the State of Kuwait (KIA), (ii) 3,105,589 shares held by Kuwait Investment Office (being the London office) of the Kuwait Investment Authority of the Government of the State of Kuwait and (iii) 4,230,409 shares issuable upon conversion of the outstanding principal and interest accrued as of December 31, 2015 on 8% Notes held by KIA. The address for the registered office for Kuwait Investment Authority is Block No. 3, Ministries Complex, City of Kuwait, Kuwait (KIA).

⁽¹⁶⁾  Represents (i) 29,508 shares held by NEA Ventures 2003, LP, (ii) 11,075,103 shares held by New Enterprise Associates 10, LP and (iii) 423,041 shares issuable upon conversion of the outstanding principal and interest accrued as of December 31, 2015 on 8% Notes held by New Enterprise Associates 10, LP (collectively, the NEA Funds). The General Partner for NEA Ventures 2003, LP is J. Daniel Moore. The General Partner for New Enterprise Associates 10, LP is NEA Partners 10, LP. The individual general partners of NEA Partners 10, LP are M. James Barrett, Peter Barris, C. Richard Kramlich, Charles W. Newhall, III, Mark W. Perry, Scott D. Sandell and Eugene A. Trainor, III. Neither NEA Partners 10, LP nor any of its general partners has voting or dispositive power over the shares directly held by NEA Ventures 2003, LP, and each disclaims beneficial ownership of such shares except to the extent of their proportionate pecuniary interest therein, if any. Mr. Sandell, one of our directors, is the managing general partner of New Enterprise Associates and, therefore, may be deemed to share voting and investment power over the shares held by the NEA Funds. The address of these entities is 2855 Sand Hill Road, Menlo Park, CA 94025.

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DESCRIPTION OF CAPITAL STOCK

General

Upon completion of this offering, our authorized capital stock will consist of             shares of common stock, $0.0001 par value per share, and             shares of undesignated preferred stock, $0.0001 par value per share. The following description summarizes the terms of our capital stock. Because it is only a summary, it does not contain all the information that may be important to you. For a complete description, you should refer to our amended and restated certificate of incorporation and amended and restated bylaws, which are included as exhibits to the registration statement of which this prospectus forms a part, and to the applicable provisions of Delaware law.

Pursuant to the provisions of our certificate of incorporation all of the outstanding convertible preferred stock will automatically convert into common stock in connection with the completion of this offering. Assuming effectiveness of this conversion, the automatic conversion of our 8% Notes into common stock effective upon the completion of this offering and the exercise of warrants for an aggregate of 882,594 shares of our common stock on or prior to the completion of this offering, as of December 31, 2015, there were 131,314,076 shares of our common stock issued, held by approximately 660 stockholders of record, and no shares of our preferred stock outstanding. Our board of directors is authorized, without stockholder approval, to issue additional shares of our capital stock.

Common Stock

Dividend Rights

Subject to preferences that may apply to any shares of preferred stock outstanding at the time, the holders of our common stock are entitled to receive dividends out of funds legally available if our board of directors, in its discretion, determines to issue dividends and then only at the times and in the amounts that our board of directors may determine. See “Dividend Policy” for more information.

Voting Rights

Holders of our common stock are entitled to one vote for each share held on all matters submitted to a vote of stockholders. We have not provided for cumulative voting for the election of directors in our amended and restated certificate of incorporation. Accordingly, holders of a majority of the shares of our common stock will be able to elect all of our directors. Our amended and restated certificate of incorporation that will become effective in connection with the completion of this offering establishes a classified board of directors, to be divided into three classes with staggered three-year terms. Only one class of directors will be elected at each annual meeting of our stockholders, with the other classes continuing for the remainder of their respective three-year terms.

No Preemptive or Similar Rights

Our common stock is not entitled to preemptive rights, and is not subject to conversion, redemption or sinking fund provisions.

Right to Receive Liquidation Distributions

Upon our liquidation, dissolution or winding-up, the assets legally available for distribution to our stockholders would be distributable ratably among the holders of our common stock and any participating preferred stock outstanding at that time, subject to prior satisfaction of all outstanding debt and liabilities and the preferential rights of and the payment of liquidation preferences, if any, on any outstanding shares of preferred stock.

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Preferred Stock

Following this offering, our board of directors will be authorized, subject to limitations prescribed by Delaware law, to issue preferred stock in one or more series, to establish from time to time the number of shares to be included in each series and to fix the designation, powers, preferences and rights of the shares of each series and any of its qualifications, limitations or restrictions, in each case without further vote or action by our stockholders. Our board of directors can also increase or decrease the number of shares of any series of preferred stock, but not below the number of shares of that series then outstanding, without any further vote or action by our stockholders. Our board of directors may authorize the issuance of preferred stock with voting or conversion rights that could adversely affect the voting power or other rights of the holders of our common stock. The issuance of preferred stock, while providing flexibility in connection with possible acquisitions and other corporate purposes, could, among other things, have the effect of delaying, deferring or preventing a change in control of our company and might adversely affect the market price of our common stock and the voting and other rights of the holders of our common stock. We have no current plan to issue any shares of preferred stock.

Options

As of December 31, 2015, we had outstanding options to purchase 12,660,639 shares of our common stock, with a weighted average exercise price of $14.38, granted pursuant to our 2002 Equity Incentive Plan and our 2012 Equity Incentive Plan.

Restricted Stock Units

As of December 31, 2015, we had outstanding restricted stock units that may be settled for 556,303 shares of our common stock, granted pursuant to our 2012 Equity Incentive Plan.

Warrants

As of December 31, 2015, we had outstanding the following warrants to purchase shares of our capital stock:

Type of Capital Stock	Total Number of Shares Subject to Warrants		Exercise Price Per Share		Expiration Dates
Common Stock		50,000	$	25.76		06/27/2019
Series F convertible preferred stock		128,808		18.52		03/03/2016	(1)(3)
Series F convertible preferred stock		117,005		18.52		03/31/2016	(1)(3)
Series F convertible preferred stock		12,571		18.52		04/13/2016	(1)(3)
Series F convertible preferred stock		4,344		18.52		05/19/2016	(1)(3)
Series F convertible preferred stock		533		18.52		11/23/2016	(1)(3)
Series F convertible preferred stock		18,951		18.52		12/31/2020	(2)
Series F convertible preferred stock		702,823		18.52		07/01/2020	(2)
Series F convertible preferred stock		150,000		18.52		07/19/2023	(1)(3)
Series G convertible preferred stock		400,000		25.76		06/26/2019	(2)
Series G convertible preferred stock		11,646		25.76		09/27/2022	(2)
Series G convertible preferred stock		7,764		25.76		12/31/2022	(2)

⁽¹⁾  Unless exercised earlier, all of these warrants automatically expire in accordance with their terms immediately prior to the completion of this offering.

⁽²⁾  Unless exercised earlier and after the completion of this offering, all of these warrants will become exercisable to purchase such number shares of our common stock into which such number of Series F convertible preferred stock or Series G convertible preferred stock, as applicable, subject to the purchase rights under the warrants would have been converted immediately prior to the completion of this offering as a result of the automatic conversion of our outstanding preferred stock. The exercise prices of these warrants may be paid either in cash or by surrendering the right to receive shares of our common stock having a value equal to the exercise price.

⁽³⁾ We expect these warrants will be exercised prior to the completion of this offering.

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Securities Acquisition Agreement

In June 2014, we entered into a securities acquisition agreement as part of a dispute settlement with a securities placement agent pursuant to which a total of 200,000 shares of our common stock will be issued 180 days after the date of this prospectus.

Common Stock Award Agreement

In September 2015, we entered into a common stock award agreement with one of our customers pursuant to which up to a total of 400,000 shares of our common stock will be issued to such customer on the occurrence of certain installation milestones. As of December 31, 2015, no shares of our common stock had been issued to such customer pursuant to this agreement.

5.0% Convertible Senior Secured PIK Notes due 2020

On December 15, 2015, we issued $160 million aggregate principal amount of our 5.0% Convertible Senior Secured PIK Notes due 2020 (5% Notes) pursuant to a certain note purchase agreement with certain accredited investors and qualified institutional buyers and pursuant to a certain indenture dated as of December 15, 2015. The 5% Notes are secured by our working capital, fixed assets, intellectual property and other assets, subject to certain exceptions. The 5% Notes bear a fixed interest rate of 5.0%, compounded monthly and payable in cash or in kind at our election, and are due on December 1, 2020. Under the terms of the indenture, we are required to comply with various restrictive covenants, including meeting certain reporting requirements, such as the preparation and delivery of audited consolidated financial statements, and restrictions on investments. In addition, we are required to maintain collateral which secures the 5% Notes in an amount equal to 200% of the principal amount of and accrued and unpaid interest on the outstanding 5% Notes. As of December 31, 2015, the outstanding principal and accrued interest on the 5% Notes was $160.3 million. Subsequent to December 31, 2015, we issued an additional $25.0 million principal amount of our 5% Notes pursuant to a certain note purchase agreement with a certain accredited investor.

Following the completion of this offering, the outstanding principal and accrued interest on the 5% Notes will be convertible at any time at the option of the holders thereof into shares of our common stock at an initial conversion price equal to the lower of $30.91 and 90% of the initial public offering price of our common stock sold in this offering, or $          per share based on the midpoint of the price range on the cover of this prospectus. The initial conversion price applicable to the 5% Notes following the completion of this offering may be adjusted from time to time on the occurrence of any stock split or combination of shares affecting our common stock, any dividends or distributions on shares of our common stock, certain issuances of rights, options or warrants, or certain payments by us with respect to tender or exchange offers for our common stock.

On or after the date that is two years following the consummation of this offering, if the closing price of our common stock is equal to or greater than 150% of the initial public offering price of our common stock sold in this offering for at least 20 trading days out of a period of 30 consecutive trading days, we may at our election redeem all or part of the 5% Notes at a redemption price payable in cash equal to 100% of the principal amount of the 5% Notes to be redeemed, plus accrued but unpaid interest. Upon any such election, any holder of the 5% Notes may elect to convert such holder’s 5% Notes into shares of our common stock at an adjusted ‘make whole’ conversion rate, as determined pursuant to the indenture.

In addition, any holder of the 5% Notes may require us to repurchase for cash any or all of such holder’s 5% Notes at a repurchase price in cash equal to 100% of the principal amount thereof, plus accrued and unpaid interest thereon, or alternatively may elect to convert any or all of such holder’s 5% Notes into shares of our common stock at an adjusted ‘make whole’ conversion rate, as determined pursuant to the indenture, upon the occurrence of any of the following events following the consummation of this offering:

(i) a “person” or “group” within the meaning of Section 13(d) of the Exchange Act, other than us, our direct or indirect wholly-owned subsidiaries and the employee benefit plans thereof, files a Schedule

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TO or any schedule, form or report under the Exchange Act disclosing that such person or group has become the direct or indirect “beneficial owner”, as defined in Rule 13d-3 under the Exchange Act, of our common equity representing more than 50% of the voting power of our common equity;

(ii) the consummation of (a) any recapitalization, reclassification or change of our common stock as a result of which our common stock would be converted into, or exchanged for, stock or other securities, other property or assets, (b) any share exchange, consolidation, merger or similar transaction involving us pursuant to which our common stock will be converted into cash, securities or other property or assets; or (iii) any sale, conveyance, lease or other transfer or similar transaction in one transaction or a series of transactions of all or substantially all of our consolidated assets and our subsidiaries, taken as a whole, to any person other than one or more of our direct or indirect wholly-owned subsidiaries;

(iii) our stockholders approve any plan or proposal for our liquidation or dissolution; or

(iv) our common stock ceases to be listed or quoted on the                     .

In addition, in connection with the issuance of the 5% Notes, we agreed to issue to certain purchasers of the 5% Notes, upon the occurrence of certain conditions, warrants to purchase up to a maximum of 469,333 shares of our common stock at an exercise price of $0.01 per share (the Note Warrants). The Note Warrants will automatically be deemed exercised immediately prior to the completion of this offering.

Registration Rights

Following the completion of this offering, the holders of              shares of our common stock issuable upon conversion of our convertible preferred stock or their permitted transferees are entitled to rights with respect to the registration of these shares under the Securities Act. In addition, holders of our 5% Notes and holders of our warrants exercisable for Series F convertible preferred stock and Series G convertible preferred stock will also be entitled to rights with respect to registration of shares issuable upon the conversion of the 5% Notes or the exercise of such warrants, respectively, under the Securities Act. These rights are provided under the terms of our eighth amended and restated registration rights agreement, as amended, (the Rights Agreement) between us and the holders of these shares, which was entered into in connection with our convertible preferred stock financings, and include demand, Form S-3 and piggyback registration rights. In any registration made pursuant to such Rights Agreement, all fees, costs, and expenses of underwritten registrations, including fees and disbursements of special counsel to the selling stockholders, will be borne by us and all selling expenses, including underwriting discounts and selling commissions, will be borne by the holders of the shares being registered.

The registration rights terminate five years following the completion of this offering, or, with respect to any particular stockholder, at such time as we have completed this offering and such stockholder can sell all of its shares during any three month period pursuant to Rule 144 of the Securities Act.

Demand Registration Rights

Under the terms of our Rights Agreement, we will be required, upon the written request of holders of at least 33% of the shares that are entitled to registration rights under the Rights Agreement, to register, as soon as practicable, all or a portion of these shares for public resale, if the amount of registrable securities to be registered has an anticipated aggregate offering price of at least $10 million.

We are required to effect only two registrations pursuant to this provision of our Rights Agreement. We may postpone the filing of a registration statement no more than once in a 12-month period for up to 120 days and once for up to 90 days if our board of directors determines that the filing would be seriously detrimental to us and our stockholders. We are not required to effect a demand registration under certain additional circumstances specified in our Rights Agreement, including at any time earlier than 180 days after the effective date of this offering.

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Form S-3 Registration Rights

The holders of shares of our common stock having registration rights or their permitted transferees are also entitled to short-form registration rights. Such holders can request that we register all or part of their shares on Form S-3 if we are eligible to file a registration statement on Form S-3 and if the aggregate price to the public of the shares offered is at least $3.0 million. Such holders may require us to effect no more than three registration statements on Form S-3 within a 12-month period. We may postpone the filing of a registration statement on Form S-3 no more than once during any 12-month period for up to 120 days and once for up to 90 days if our board of directors determines that the filing would be seriously detrimental to us and our stockholders. We are not required to effect a registration statement on Form S-3 under certain additional circumstances specified in our Rights Agreement.

Piggyback Registration Rights

If we register any of our securities for public sale, holders of shares of our common stock having registration rights or their permitted transferees will have the right to include their shares in the registration statement. However, this right does not apply to a registration relating to employee benefit plans, a registration relating to a corporate reorganization, a shelf registration statement on Form S-3 for the primary issuance of securities by us pursuant to Rule 15 of the Securities Act or a registration related to stock issued upon conversion of debt securities. The underwriters of any underwritten offering will have the right to limit the number of shares registered by these holders if they determine in good faith that marketing factors require limitation, in which case the number of shares to be registered will be apportioned, first, to us for our own account and, second, pro rata among these holders, according to the total amount of securities each holder is entitled to include. However, the number of shares to be registered by these holders cannot be reduced below 30% of the total shares covered by the registration statement.

Anti-Takeover Provisions

The provisions of Delaware law, our amended and restated certificate of incorporation and our amended and restated bylaws to be in effect upon the completion of this offering could have the effect of delaying, deferring or discouraging another person from acquiring control of our company. These provisions, which are summarized below, may have the effect of discouraging takeover bids. They are designed, in part, to encourage persons seeking to acquire control of us to negotiate first with our board of directors. We believe that the benefits of increased protection of our potential ability to negotiate with an unfriendly or unsolicited acquirer outweigh the disadvantages of discouraging a proposal to acquire us because negotiation of these proposals could result in an improvement of their terms.

Delaware Law

We are subject to the provisions of Section 203 of the Delaware General Corporation Law regulating corporate takeovers. In general, Section 203 prohibits a publicly-held Delaware corporation from engaging in a business combination with an interested stockholder for a period of three years following the date on which the person became an interested stockholder unless:

• prior to the date of the transaction, the board of directors of the corporation approved either the business combination or the transaction which resulted in the stockholder becoming an interested stockholder;

• the interested stockholder owned at least 85% of the voting stock of the corporation outstanding at the time the transaction commenced, excluding for purposes of determining the voting stock outstanding, but not the outstanding voting stock owned by the interested stockholder, (1) shares owned by persons who are directors and also officers and (2) shares owned by employee stock plans in which employee participants do not have the right to determine confidentially whether shares held subject to the plan will be tendered in a tender or exchange offer; or

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• at or subsequent to the date of the transaction, the business combination is approved by the board of directors of the corporation and authorized at an annual or special meeting of stockholders, and not by written consent, by the affirmative vote of at least 66 2/3% of the outstanding voting stock that is not owned by the interested stockholder.

Generally, a business combination includes a merger, asset or stock sale, or other transaction or series of transactions together resulting in a financial benefit to the interested stockholder. An interested stockholder is a person who, together with affiliates and associates, owns or, within three years prior to the determination of interested stockholder status, did own 15% or more of a corporation’s outstanding voting stock. We expect the existence of this provision to have an anti-takeover effect with respect to transactions our board of directors does not approve in advance.

Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws Provisions

Our amended and restated certificate of incorporation and our amended and restated bylaws, each as will be in effect upon the completion of this offering, include a number of provisions that could deter hostile takeovers or delay or prevent changes in control of our company, including the following:

• Board of directors vacancies. Our amended and restated certificate of incorporation and amended and restated bylaws will authorize only our board of directors to fill vacant directorships, including newly created seats. In addition, the number of directors constituting our board of directors is permitted to be set only by a resolution adopted by a majority vote of our entire board of directors. These provisions would prevent a stockholder from increasing the size of our board of directors and then gaining control of our board of directors by filling the resulting vacancies with its own nominees. This makes it more difficult to change the composition of our board of directors but promotes continuity of management.

• Classified board. Our amended and restated certificate of incorporation and amended and restated bylaws will provide that our board is classified into three classes of directors, each with staggered three year terms. A third party may be discouraged from making a tender offer or otherwise attempting to obtain control of us as it is more difficult and time-consuming for stockholders to replace a majority of the directors on a classified board of directors. See “Management—Classified Board of Directors.”

• Stockholder action; special meetings of stockholders. Our amended and restated certificate of incorporation will provide that our stockholders may not take action by written consent, but may only take action at annual or special meetings of our stockholders. As a result, a holder controlling a majority of our capital stock would not be able to amend our amended and restated bylaws or remove directors without holding a meeting of our stockholders called in accordance with our amended and restated bylaws. Further, our amended and restated bylaws will provide that special meetings of our stockholders may be called only by a majority of our board of directors, the chairman of our board of directors, our Chief Executive Officer or our President, thus prohibiting a stockholder from calling a special meeting. These provisions might delay the ability of our stockholders to force consideration of a proposal or for stockholders controlling a majority of our capital stock to take any action, including the removal of directors.

• Advance notice requirements for stockholder proposals and director nominations. Our amended and restated bylaws will provide advance notice procedures for stockholders seeking to bring business before our annual meeting of stockholders or to nominate candidates for election as directors at our annual meeting of stockholders. Our amended and restated bylaws also will specify certain requirements regarding the form and content of a stockholder’s notice. These provisions might preclude our stockholders from bringing matters before our annual meeting of stockholders or from making nominations for directors at our annual meeting of stockholders if the proper procedures are not followed. We expect that these provisions might also discourage or deter a potential acquirer from conducting a solicitation of proxies to elect the acquirer’s own slate of directors or otherwise attempting to obtain control of our company.

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• No cumulative voting. The Delaware General Corporation Law provides that stockholders are not entitled to the right to cumulate votes in the election of directors unless a corporation’s certificate of incorporation provides otherwise. Our amended and restated certificate of incorporation and amended and restated bylaws will not provide for cumulative voting.

• Directors removed only for cause. Our amended and restated certificate of incorporation will provide that stockholders may remove directors only for cause.

• Amendment of charter provisions. Any amendment of the above expected provisions in our amended and restated certificate of incorporation would require approval by holders of at least two-thirds of our outstanding common stock.

• Issuance of undesignated preferred stock. Our board of directors has the authority, without further action by the stockholders, to issue up to 10,000,000 shares of undesignated preferred stock with rights and preferences, including voting rights, designated from time to time by our board of directors. The existence of authorized but unissued shares of preferred stock would enable our board of directors to render more difficult or to discourage an attempt to obtain control of us by a merger, tender offer, proxy contest or other means.

• Choice of forum. Our amended and restated certificate of incorporation will provide that the Court of Chancery of the State of Delaware will be the exclusive forum for any derivative action or proceeding brought on our behalf; any action asserting a breach of fiduciary duty; any action asserting a claim against us arising pursuant to the Delaware General Corporation Law, our amended and restated certificate of incorporation or our amended and restated bylaws; or any action asserting a claim against us that is governed by the internal affairs doctrine.

Transfer Agent and Registrar

Upon the completion of this offering, the transfer agent and registrar for our common stock will be Computershare Trust Company, N.A. The transfer agent’s address is 250 Royall Street, Canton, Massachusetts 02021.

Exchange Listing

We have applied to list our common stock on the                      under the symbol “BE.”

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SHARES ELIGIBLE FOR FUTURE SALE

Prior to this offering, there has not been any public market for our common stock, and we make no prediction as to the effect, if any, that market sales of shares of common stock or the availability of shares of common stock for sale will have on the market price of common stock prevailing from time to time. Nevertheless, sales of substantial amounts of common stock in the public market, or the perception that such sales could occur, could adversely affect the market price of common stock and could impair our future ability to raise capital through the sale of equity securities.

When this offering is complete, we will have an aggregate of                  shares of common stock outstanding, assuming (1) the automatic conversion of all outstanding shares of our convertible preferred stock into an aggregate of 107,425,783 shares of common stock effective upon the closing of this offering, (2) the automatic conversion of all of our outstanding 8% Notes into shares of our Series G convertible preferred stock and the subsequent automatic conversion of such shares of Series G convertible preferred stock into an aggregate of 8,097,795 shares of common stock effective upon the closing of this offering, (3) the issuance and exercise of warrants to purchase 469,333 shares of our common stock at an exercise price of $0.01 per share to certain purchasers of our 5% Notes, as described in “Description of Capital Stock—5.0% Convertible Senior Secured PIK Notes due 2020”, which warrants will automatically be deemed exercised pursuant to their terms immediately prior to the completion of this offering, (4) the issuance of 200,000 shares of common stock 180 days from the date of this prospectus as part of a dispute settlement with a securities placement agent, as described in “Description of Capital Stock—Securities Acquisition Agreement”, (5) no exercise of outstanding warrants, except for an aggregate of 413,261 shares of common stock that we expect to issue upon the exercise of outstanding warrants exercisable for shares of our Series F convertible preferred stock, which warrants would otherwise expire immediately prior to the completion of this offering, (6) no exercise of outstanding options to purchase common stock, (7) no settlements of outstanding RSUs, (8) no issuance of the total of 400,000 shares of our common stock issuable to one of our customers upon the occurrence of certain installation milestones, and (9) the underwriters do not exercise their option to purchase additional shares from us.

Of the outstanding shares, all of the              shares sold in this offering, plus any additional shares sold upon exercise of the underwriters’ option to purchase additional shares from us, will be freely tradable, except that any shares purchased by “affiliates” (as that term is defined in Rule 144 under the Securities Act) may only be sold in compliance with the limitations described below. The remaining              shares of common stock will be deemed “restricted securities” as defined in Rule 144. Restricted securities may be sold in the public market only if registered or if they qualify for an exemption from registration under Rule 144 or Rule 701, promulgated under the Securities Act, which rules are summarized below.

As a result of the contractual restrictions described below and the provisions of Rules 144 and 701, the restricted shares will be available for sale in the public market as follows:

• no shares will be eligible for sale when this offering is complete;

• shares will be eligible for sale upon the expiration of the lock-up agreements with the underwriters or market standoff provisions in agreements with us, as described below, beginning 180 days after the date of this prospectus; and

• shares will be eligible for sale upon the exercise of vested options 180 days after the date of this prospectus, subject to extension in certain circumstances.

In addition, of the 12,660,639 shares of our common stock that were subject to stock options outstanding as of December 31, 2015, options to purchase 8,693,707 shares of common stock were vested as of December 31, 2015 and will be eligible for sale 180 days following the effective date of this offering, subject to extension as described in the section entitled “Underwriting.”

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Lock-Up Agreements and Obligations

All of our directors, executive officers, and the holders of substantially all of our outstanding equity securities are subject to lock-up agreements with the underwriters or market standoff provisions in agreements with us that, subject to certain exceptions, prohibit them from offering for sale, selling, contracting to sell, granting any option for the sale of, transferring, or otherwise disposing of any shares of our common stock, options, or warrants to acquire shares of our common stock, or any security or instrument related to this common stock, option, or warrant for a period of 180 days following the date of this prospectus, without the prior written consent of J.P. Morgan Securities LLC or us, as the case may be. We have agreed with the underwriters not to release any security holder from market standoff provisions in agreements with us without the consent of J.P. Morgan Securities LLC. See the section titled “Underwriting” for additional information.

Rule 144

In general, under Rule 144 as currently in effect, once we have been subject to public company reporting requirements for at least 90 days, a person who is not deemed to have been one of our affiliates for purposes of the Securities Act at any time during the 90 days preceding a sale and who has beneficially owned the shares proposed to be sold for at least six months, including the holding period of any prior owner other than our affiliates, is entitled to sell such shares without complying with the manner of sale, volume limitation or notice provisions of Rule 144, subject to compliance with the public information requirements of Rule 144. If such a person has beneficially owned the shares proposed to be sold for at least one year, including the holding period of any prior owner other than our affiliates, then such person is entitled to sell such shares without complying with any of the requirements of Rule 144.

In general, under Rule 144, as currently in effect, our affiliates or persons selling shares on behalf of our affiliates are entitled to sell upon expiration of the lock-up agreements described above, within any three-month period beginning 90 days after the date of this prospectus, a number of shares that does not exceed the greater of:

• 1% of the number of shares of common stock then outstanding, which will equal approximately shares immediately after this offering; or

• the average weekly trading volume of the common stock during the four calendar weeks preceding the filing of a notice on Form 144 with respect to such sale.

Sales under Rule 144 by our affiliates or persons selling shares on behalf of our affiliates are also subject to certain manner of sale provisions and notice requirements and to the availability of current public information about us.

Rule 701

Rule 701 generally allows a stockholder who purchased shares of our common stock pursuant to a written compensatory plan or contract and who is not deemed to have been an affiliate of our company during the immediately preceding 90 days to sell these shares in reliance upon Rule 144, but without being required to comply with the public information, holding period, volume limitation, or notice provisions of Rule 144. Rule 701 also permits affiliates of our company to sell their Rule 701 shares under Rule 144 without complying with the holding period requirements of Rule 144. All holders of Rule 701 shares, however, are required to wait until 90 days after the date of this prospectus before selling such shares pursuant to Rule 701.

Stock Options

We intend to file registration statements on Form S-8 under the Securities Act covering all of the shares of our common stock subject to options outstanding or reserved for issuance under our stock plans, 2016 Employee Stock Purchase Plan and shares of our common stock issued upon the exercise of options by employees. We

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expect to file this registration statement as soon as permitted under the Securities Act. Shares covered by this registration statement will be eligible for sale in the public market, upon the expiration or release from the terms of the lock-up agreements, and subject to vesting of such shares.

Registration Rights

When this offering is complete, the holders of an aggregate of              shares of our common stock, or their transferees, will be entitled to rights with respect to the registration of their shares under the Securities Act. In addition, holders of our 5% Notes and holders of our warrants exercisable for Series F convertible preferred stock and Series G convertible preferred stock will also be entitled to rights with respect to registration of shares issuable upon the conversion of the 5% Notes or the exercise of such warrants, respectively, under the Securities Act. Registration of these shares under the Securities Act would result in these shares becoming freely tradeable without restriction under the Securities Act immediately upon the effectiveness of such registration. For a further description of these rights, see “Description of Capital Stock—Registration Rights.”

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MATERIAL U.S. FEDERAL INCOME TAX CONSIDERATIONS FOR NON-U.S. HOLDERS

The following is a summary of the material U.S. federal income tax considerations of the ownership and disposition of our common stock sold pursuant to this offering to non-U.S. holders, as defined below, but does not purport to be a complete analysis of all the potential tax considerations relating thereto. This summary is based upon the provisions of the Internal Revenue Code, Treasury regulations promulgated thereunder, administrative rulings and judicial decisions, all as of the date hereof. These authorities may be changed, possibly retroactively, so as to result in U.S. federal income tax consequences different from those set forth below.

This summary does not address the tax considerations arising under the laws of any non-U.S., state or local jurisdiction or under U.S. federal gift and estate tax laws. In addition, this discussion does not address tax considerations applicable to an investor’s particular circumstances or to investors that may be subject to special tax rules, including, without limitation:

• banks, insurance companies or other financial institutions;

• partnerships or entities or arrangements treated as partnerships or other pass-through entities for U.S. federal income tax purposes (or investors in such entities);

• persons subject to the alternative minimum tax;

• pension funds

• real estate investment trusts;

• regulated investment companies;

• tax-qualified retirement plans;

• tax-exempt organizations;

• persons who acquired our common stock through exercise of compensatory stock options or otherwise as compensation for services;

• controlled foreign corporations, passive foreign investment companies and corporations that accumulate earnings to avoid U.S. federal income tax;

• dealers in securities or currencies;

• traders in securities that elect to use a mark-to-market method of accounting for their securities holdings;

• persons that own, or are deemed to own, more than five percent of our capital stock, except to the extent specifically set forth below;

• certain former citizens or long-term residents of the United States;

• persons who hold our common stock as a position in a hedging transaction, “straddle,” “conversion transaction” or other risk reduction transaction;

• persons who do not hold our common stock as a capital asset within the meaning of Section 1221 of the Internal Revenue Code (generally, for investment purposes); or

• persons deemed to sell our common stock under the constructive sale provisions of the Internal Revenue Code.

If a partnership, including any entity or arrangement classified as a partnership for U.S. federal income tax purposes, holds our common stock, the tax treatment of a partner generally will depend on the status of the partner and upon the activities of the partnership. Accordingly, partnerships that hold our common stock, and partners in such partnerships, should consult their tax advisors with respect to the U.S. federal income tax consequences of the ownership and disposition of our common stock.

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YOU ARE URGED TO CONSULT YOUR TAX ADVISOR WITH RESPECT TO THE APPLICATION OF THE U.S. FEDERAL INCOME TAX LAWS TO YOUR PARTICULAR SITUATION, AS WELL AS ANY TAX CONSEQUENCES OF THE OWNERSHIP AND DISPOSITION OF OUR COMMON STOCK ARISING UNDER THE U.S. FEDERAL ESTATE OR GIFT TAX RULES OR UNDER THE LAWS OF ANY STATE, LOCAL, NON-U.S. OR OTHER TAXING JURISDICTION OR UNDER ANY APPLICABLE TAX TREATY.

Non-U.S. Holder Defined

For purposes of this discussion, you are a “non-U.S. holder” if you are a beneficial owner of our common stock, other than a partnership or entity classified as a partnership for U.S. federal income tax purposes, that is not:

• an individual citizen or resident of the United States;

• a corporation or other entity taxable as a corporation created or organized in the United States or under the laws of the United States or any political subdivision thereof;

• an estate whose income is subject to U.S. federal income tax regardless of its source; or

• a trust (x) whose administration is subject to the primary supervision of a U.S. court and which has one or more U.S. persons who have the authority to control all substantial decisions of the trust or (y) which has made an election to be treated as a U.S. person.

If you are a non-U.S. citizen who is an individual, you may, in many cases, be treated as a U.S. resident by virtue of being present in the United States for at least 31 days in the calendar year and for an aggregate of at least 183 days during a three-year period ending in the current calendar year. For these purposes, all the days you are present in the current year, one-third of the days you were present in the immediately preceding year, and one-sixth of the days you were present in the second preceding year are counted. If you are a U.S. resident, you will be subject to U.S. federal income tax in the same manner as U.S. citizens, and this discussion will not apply to you. You should consult your tax advisor if you are unsure whether you are a U.S. resident, and regarding the U.S. federal income tax considerations of the ownership or disposition of our common stock.

Distributions

We have not made any distributions on our common stock and we do not plan to make any distributions for the foreseeable future. However, if we do make distributions on our common stock, those payments will constitute dividends for U.S. tax purposes to the extent paid from our current or accumulated earnings and profits, as determined under U.S. federal income tax principles. To the extent those distributions exceed both our current and our accumulated earnings and profits, they will constitute a return of capital and will first reduce your basis in our common stock, but not below zero, and then, to the extent they exceed your basis, will be treated as gain from the sale of stock (see “—Gain on Disposition of Common Stock,” below).

Any dividend paid to you generally will be subject to U.S. withholding tax at a rate of 30% of the gross amount of the dividend, or such lower rate as may be specified by an applicable income tax treaty. In order to receive a reduced treaty rate of withholding tax, you must provide us with a valid and properly completed IRS Form W-8BEN, IRS Form W-8BEN-E or other appropriate version of IRS Form W-8 (or successor of such forms), including a U.S. taxpayer identification number and certifying qualification for the reduced rate. A non-U.S. holder of shares of our common stock eligible for a reduced rate of U.S. withholding tax pursuant to an income tax treaty may obtain a refund of any excess amounts withheld by timely filing an appropriate claim for refund with the Internal Revenue Service. If the non-U.S. holder holds the stock through a financial institution or other agent acting on the non-U.S. holder’s behalf, the non-U.S. holder will be required to provide appropriate documentation to the agent, which then will be required to provide certification to us or our paying agent, either directly or through other intermediaries.

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Dividends you receive that are effectively connected with your conduct of a U.S. trade or business, are generally exempt from such withholding tax. In order to obtain this exemption, you must provide us with a valid and properly completed IRS Form W-8ECI (or successor form) or other applicable IRS Form W-8 properly certifying such exemption. Although not subject to withholding tax, dividends you receive that are effectively connected with your conduct of a U.S. trade or business (and, if an income tax treaty applies, are attributable to a permanent establishment you maintain in the United States) generally are taxed at the same graduated rates applicable to U.S. persons, net of certain deductions and credits. In addition, if you are a corporate non-U.S. holder, dividends you receive that are effectively connected with your conduct of a U.S. trade or business may also be subject to a branch profits tax at a rate of 30%, or such lower rate as may be specified by an applicable income tax treaty.

Gain on Disposition of Common Stock

You generally will not be required to pay U.S. federal income tax on any gain realized upon the sale or other disposition of our common stock unless:

• the gain is effectively connected with your conduct of a U.S. trade or business, and, if an income tax treaty applies, the gain is attributable to a permanent establishment you maintain in the United States;

• you are an individual who is present in the United States for a period or periods aggregating 183 days or more during the calendar year in which the sale or disposition occurs and certain other conditions are met; or

• our common stock constitutes a U.S. real property interest by reason of our status as a “United States real property holding corporation” (USRPHC), for U.S. federal income tax purposes, at any time within the shorter of the five-year period preceding the disposition or your holding period for our common stock.

We believe that we are not currently and will not become a USRPHC. However, because the determination of whether we are a USRPHC depends on the fair market value of our U.S. real property relative to the fair market value of our other business assets, there can be no assurance that we will not become a USRPHC in the future. Even if we become a USRPHC, however, as long as our common stock is regularly traded on an established securities market, our common stock will be treated as a U.S. real property interest only if you actually or constructively hold more than five percent of such common stock at any time during the applicable period described above. There can be no assurance that our common stock will be (or will continue to be) regularly traded on an established securities market.

If you are a non-U.S. holder described in the first bullet above, you will generally be required to pay tax on the gain derived from the sale, net of certain deductions or credits, under regular graduated U.S. federal income tax rates. Corporate non-U.S. holders described in the first bullet above may also be subject to branch profits tax at a 30% rate, or such lower rate as may be specified by an applicable income tax treaty. If you are an individual non-U.S. holder described in the second bullet above, you will be required to pay a flat 30% tax on the gain derived from the sale even though you are not considered a resident of the United States. The gain so described may be offset by certain U.S. source capital losses. You should consult your tax advisor to determine whether you meet the conditions of this tax, and whether any applicable income tax or other treaties provide for different rules.

Backup Withholding and Information Reporting

The Internal Revenue Code and the Treasury regulations require those who make specified payments to report the payments to the Internal Revenue Service. Among the specified payments are dividends and proceeds from stock dispositions paid by brokers to their customers. The required information returns enable the Internal

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Revenue Service to determine whether the recipient properly included the payments in income. This reporting regime is reinforced by “backup withholding” rules. These rules require the payers to withhold tax from payments subject to information reporting if the recipient fails to cooperate with the reporting regime by failing to provide his taxpayer identification number to the payer, by furnishing an incorrect identification number, or by failing to report interest or dividends on his returns. The backup withholding tax rate is currently 28%. The backup withholding rules generally do not apply to payments to corporations.

Payments to non-U.S. holders of dividends on common stock generally will not be subject to backup withholding, and payments of proceeds made to non-U.S. holders by a broker upon a sale of common stock will not be subject to information reporting or backup withholding, in each case so long as the non-U.S. holder certifies its non-U.S. status or otherwise establishes an exemption (and we or our paying agent do not have actual knowledge or reason to know the holder is a U.S. person or that the conditions of any other exemption are not, in fact, satisfied). The certification procedures to claim treaty benefits described under “Distributions,” above, will generally satisfy the certification requirements necessary to avoid the backup withholding tax. We must report annually to the Internal Revenue Service any dividends paid to each non-U.S. holder and the tax withheld, if any, with respect to these dividends. Copies of these reports may be made available to tax authorities in the country where the non-U.S. holder resides.

Under the Treasury regulations, the payment of proceeds from the disposition of shares of our common stock by a non-U.S. holder made to or through a U.S. office of a broker generally will be subject to information reporting and backup withholding unless the beneficial owner certifies, under penalties of perjury, among other things, its status as a non-U.S. holder or otherwise establishes an exemption (and the broker does not have actual knowledge or reason to know the holder is a U.S. person or that the conditions of any other exemption are not, in fact, satisfied). The payment of proceeds from the disposition of shares of our common stock by a non-U.S. holder made to or through a non-U.S. office of a broker generally will not be subject to backup withholding and information reporting, except as noted below. Information reporting, but not backup withholding, will apply to a payment of proceeds, even if that payment is made outside of the United States, if you sell our common stock through a non-U.S. office of a broker that is:

• a U.S. person (including a foreign branch or office of such person);

• a “controlled foreign corporation” for U.S. federal income tax purposes;

• a foreign person 50% or more of whose gross income from certain periods is effectively connected with a U.S. trade or business; or

• a foreign partnership if at any time during its tax year (a) one or more of its partners are U.S. persons who, in the aggregate, hold more than 50% of the income or capital interests of the partnership or (b) the foreign partnership is engaged in a U.S. trade or business;

unless the broker has documentary evidence that the beneficial owner is a non-U.S. holder and certain other conditions are satisfied, or the beneficial owner otherwise establishes an exemption (and the broker has no actual knowledge or reason to know to the contrary).

Backup withholding is not an additional tax. Any amounts withheld from a payment to a holder of common stock under the backup withholding rules can be credited against any U.S. federal income tax liability of the holder and may entitle the holder to a refund, provided that the required information is furnished to the Internal Revenue Service in a timely manner.

Foreign Account Tax Compliance Act

Pursuant to the “Foreign Account Tax Compliance Act” (FATCA), a U.S. federal withholding tax of 30% may apply to dividends and the gross proceeds of a sale or other disposition of our common stock paid to a “foreign financial institution,” as specially defined under these rules, unless such institution enters into an agreement with the U.S. government to withhold on certain payments and to collect and provide to the U.S. tax

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authorities substantial information regarding U.S. account holders of such institution, which includes certain equity and debt holders of such institution, as well as certain account holders that are foreign entities with U.S. owners. Pursuant to FATCA, a U.S. federal withholding tax of 30% will also apply to dividends and the gross proceeds of a sale or other disposition of our common stock paid to a non-financial foreign entity unless such entity provides the withholding agent with either a certification that it does not have any substantial direct or indirect U.S. owners or provides information regarding all such direct and indirect U.S. owners. The withholding taxes described above will not apply if the foreign financial institution or non-financial foreign entity otherwise qualifies for an exemption from the rules. The 30% federal withholding tax described in this paragraph generally cannot be reduced under existing tax treaties with the United States, although under certain circumstances, a non-U.S. holder might be eligible for refunds or credits of such taxes. In addition, an intergovernmental agreement between the U.S. and an applicable foreign country may modify the requirements described in this paragraph.

Withholding under FATCA (i) generally applies to payments of dividends on our common stock and (ii) will apply to payments of gross proceeds from the sale or disposition of our common stock occurring on or after January 1, 2019.

Prospective investors are encouraged to consult with their own tax advisors regarding the possible implications of FATCA on their investment in our common stock.

THE PRECEDING DISCUSSION OF U.S. FEDERAL TAX CONSIDERATIONS IS FOR GENERAL INFORMATION ONLY. IT IS NOT TAX ADVICE. EACH PROSPECTIVE INVESTOR SHOULD CONSULT ITS OWN TAX ADVISOR REGARDING THE PARTICULAR U.S. FEDERAL, STATE AND LOCAL AND NON-U.S. TAX CONSEQUENCES OF PURCHASING, HOLDING AND DISPOSING OF OUR COMMON STOCK, INCLUDING THE CONSEQUENCES OF ANY PROPOSED CHANGE IN APPLICABLE LAWS.

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UNDERWRITING

We and the selling stockholders are offering the shares of common stock described in this prospectus through a number of underwriters. J.P. Morgan Securities LLC, Morgan Stanley & Co. LLC and Credit Suisse Securities (USA) LLC are acting as joint book-running managers of the offering and as representatives of the underwriters. We and the selling stockholders have entered into an underwriting agreement with the underwriters. Subject to the terms and conditions of the underwriting agreement, we and the selling stockholders have agreed to sell to the underwriters, and each underwriter has severally agreed to purchase, at the public offering price less the underwriting discounts and commissions set forth on the cover page of this prospectus, the number of shares of common stock listed next to its name in the following table:

Name	Number of Shares
J.P. Morgan Securities LLC
Morgan Stanley & Co. LLC
Credit Suisse Securities (USA) LLC
Merrill Lynch, Pierce, Fenner & Smith                       Incorporated
Pacific Crest Securities, a division of KeyBanc Capital Markets Inc.
Cowen and Company, LLC
HSBC Securities (USA) Inc.
Raymond James & Associates, Inc.
RBC Capital Markets, LLC
Robert W. Baird & Co. Incorporated
Total

The underwriters are committed to purchase all the common shares offered by us and the selling stockholders if they purchase any shares. The underwriting agreement also provides that if an underwriter defaults, the purchase commitments of non-defaulting underwriters may also be increased or the offering may be terminated.

The underwriters propose to offer the common shares directly to the public at the initial public offering price set forth on the cover page of this prospectus and to certain dealers at that price less a concession not in excess of $              per share. Any such dealers may resell shares to certain other brokers or dealers at a discount of up to $              per share from the initial public offering price. After the initial public offering of the shares, the offering price and other selling terms may be changed by the underwriters. Sales of shares made outside of the United States may be made by affiliates of the underwriters.

The underwriters have an option to buy up to              additional shares of common stock from us and up to              shares from the selling stockholders to cover sales of shares by the underwriters which exceed the number of shares specified in the table above. The underwriters have 30 days from the date of this prospectus to exercise this option. If any shares are purchased with this option, the underwriters will purchase shares in approximately the same proportion as shown in the table above. If any additional shares of common stock are purchased, the underwriters will offer the additional shares on the same terms as those on which the shares are being offered.

The underwriting fee is equal to the public offering price per share of common stock less the amount paid by the underwriters to us per share of common stock. The underwriting fee is $              per share. The following table shows the per share and total underwriting discounts and commissions to be paid to the underwriters assuming both no exercise and full exercise of the underwriters’ option to purchase additional shares.

	Paid by us		Paid by the selling stockholders
	Without option exercise	With full option exercise	Without option exercise	With full option exercise
Per Share	$	$	$	$
Total	$	$	$	$

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We estimate that the total expenses of this offering, including registration, filing and listing fees, printing fees and legal and accounting expenses, but excluding the underwriting discounts and commissions, will be approximately $            . We have agreed to reimburse the underwriters for expenses of $             relating to the clearance of this offering with the Financial Industry Regulatory Authority.

A prospectus in electronic format may be made available on the web sites maintained by one or more underwriters or selling group members, if any, participating in the offering. The underwriters may agree to allocate a number of shares to underwriters and selling group members for sale to their online brokerage account holders. Internet distributions will be allocated by the representatives to underwriters and selling group members that may make Internet distributions on the same basis as other allocations.

We have agreed that we will not (i) offer, pledge, announce the intention to sell, 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 dispose of, directly or indirectly, or file with the Securities and Exchange Commission a registration statement under the Securities Act relating to, any shares of our common stock or securities convertible into or exchangeable or exercisable for any shares of our common stock, or publicly disclose the intention to make any offer, sale, pledge, disposition or filing, or (ii) enter into any swap or other arrangement that transfers all or a portion of the economic consequences associated with the ownership of any shares of common stock or any such other securities (regardless of whether any of these transactions are to be settled by the delivery of shares of common stock or such other securities, in cash or otherwise), in each case without the prior written consent of J.P. Morgan Securities LLC for a period of 180 days after the date of this prospectus, other than the shares of our common stock to be sold hereunder and any shares of our common stock issued upon the exercise of options granted under our existing stock-based compensation plans.

Our directors, executive officers and holders of substantially all of our common stock and securities convertible into or exchangeable for our common stock have entered into lock-up agreements with the underwriters prior to the commencement of this offering pursuant to which each of these persons or entities, with limited exceptions, for a period of 180 days after the date of this prospectus, may not, without the prior written consent of J.P. Morgan Securities LLC, (1) offer, pledge, announce the intention to sell, 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 our common stock or any securities convertible into or exercisable or exchangeable for our common stock (including, without limitation, common stock or such other securities which may be deemed to be beneficially owned by such directors, executive officers and stockholders in accordance with the rules and regulations of the SEC and securities which may be issued upon exercise of a stock option or warrant), (2) enter into any swap or other agreement that transfers, in whole or in part, any of the economic consequences of ownership of the common stock or such other securities, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of common stock or such other securities, in cash or otherwise, or (3) make any demand for or exercise any right with respect to the registration of any shares of our common stock or any security convertible into or exercisable or exchangeable for our common stock.

The restrictions in the immediately preceding paragraph shall not apply to:

• the sale of shares of our common stock pursuant to the underwriting agreement;

• transfers of shares of our common stock or other securities acquired in open market transactions after the completion of this offering;

• transfers of shares of our common stock or any security convertible into or exercisable or exchangeable for our common stock (i) as a bona fide gift, or gifts, or for bona fide estate planning purposes, (ii) upon death or by will, testamentary document or intestate succession, (iii) to an immediate family member of the locked-up party or to any trust for the direct or indirect benefit of the locked-up party or one or more immediate family members of the locked-up party, (iv) not involving a change in beneficial ownership, or (v) if the locked-up party is a trust, to any trustee or beneficiary of the locked-up party or the estate of any such trustee or beneficiary;

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• transfers or distributions of shares of our common stock or any security convertible into or exercisable or exchangeable for our common stock by a stockholder that is a corporation, partnership, limited liability company or other business entity (i) to another corporation, partnership, limited liability company or other business entity that controls, is controlled by or managed by or is under common control with such stockholder or (ii) as part of a transfer or distribution to an equity holder of such stockholder or to the estate of any such equity holder;

• the establishment of a trading plan pursuant to Rule 10b5-1 promulgated under the Exchange Act, provided that (i) such plan does not provide for the transfer of our common stock or any securities convertible into or exercisable or exchangeable for our common stock during the 180-day restricted period and (ii) no public announcement or filing is required of or voluntarily made by or on behalf of the locked-up party or us regarding the establishment of such plan;

• (i) the receipt by the locked-up party from us of shares of our common stock upon (A) the exercise or settlement of options or restricted stock units granted under a stock incentive plan or other equity award plan, which plan is described in this prospectus or (B) the exercise of warrants or conversion of convertible notes outstanding and which are described in this prospectus, or (ii) the transfer of shares of our common stock or any securities convertible into our common stock to us upon a vesting or settlement event of our securities or upon the exercise of options or warrants to purchase our securities on a “cashless” or “net exercise” basis to the extent permitted by the instruments representing such options or warrants (and any transfer to us necessary to generate such amount of cash needed for the payment of taxes, including estimated taxes, due as a result of such vesting or exercise whether by means of a “net settlement” or otherwise) so long as such “cashless exercise” or “net exercise” is effected solely by the surrender of outstanding options or warrants (or our common stock issuable upon the exercise thereof) to us and our cancellation of all or a portion thereof to pay the exercise price and/or withholding tax and remittance obligations, provided that in the case of (i), the shares received upon exercise or settlement of the option, restricted stock unit, or warrant or conversion of convertible notes are subject to the restrictions above;

• the transfer of our common stock or any security convertible into or exercisable or exchangeable for our common stock that occurs pursuant to a qualified domestic order in connection with a divorce settlement or other court order;

• the conversion of our outstanding preferred stock into shares of our common stock in connection with the closing of this offering, provided that such shares of common stock shall remain subject to the restrictions above;

• any transfer of our common stock to us pursuant to arrangements under which we have (i) the option to repurchase such shares or securities at the lower of cost or fair market value in connection with the termination of employment or service of the locked-up party with us or (ii) a right of first refusal with respect to transfers of such shares or securities; or

• the transfer of shares of our common stock or any security convertible into or exercisable or exchangeable for our common stock pursuant to a bona fide third-party tender offer, merger, consolidation or other similar transaction that is approved by our board of directors, made to all holders of our common stock involving the transfer (whether by tender offer, merger, consolidation or other similar transaction), in one transaction or a series of related transactions, to a person or group of affiliated persons (other than an underwriter pursuant to this offering), of our voting securities if, after such transfer, such person or group of affiliated persons would hold more than 50% of our outstanding voting securities (or the surviving entity), after the completion of this offering, provided that in the event such transfer, tender offer, merger, consolidation or other similar transaction is not completed, such shares shall remain subject to the restrictions above;

provided that in the case of any transfer or distribution pursuant to the third, fourth or seventh bullet points above, each transferee, donee or distributee shall sign and deliver a lock-up agreement with the same restrictions as set forth above; and

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provided, further, that in the case of any transfer or distribution pursuant to the second, third, fourth, sixth or ninth bullet points above, no filing by any party (donor, donee, transferor or transferee) under the Exchange Act or other public announcement shall be required or shall be made voluntarily in connection with such transfer or distribution (other than a filing on a Form 5 made after the expiration of the 180-day restricted period); and

provided, further, that in the case of any transfer pursuant to the seventh bullet point above, any filing under the Exchange Act shall state that such transfer is pursuant to a qualified domestic order or in connection with a divorce settlement and that such common stock or such security convertible into or exercisable or exchangeable for our common stock, as applicable, remains subject to the restrictions above. If the locked-up party is one of our officers or directors, the locked-up party further agrees that the foregoing provisions shall be equally applicable to any company-directed securities that such person may purchase in this offering.

We and the selling stockholders have agreed to indemnify the underwriters against certain liabilities, including liabilities under the Securities Act of 1933.

We will apply to have our common stock approved for listing on              under the symbol “BE”.

In connection with this offering, the underwriters may engage in stabilizing transactions, which involves making bids for, purchasing and selling shares of common stock in the open market for the purpose of preventing or retarding a decline in the market price of the common stock while this offering is in progress. These stabilizing transactions may include making short sales of the common stock, which involves the sale by the underwriters of a greater number of shares of common stock than they are required to purchase in this offering, and purchasing shares of common stock on the open market to cover positions created by short sales. Short sales may be “covered” shorts, which are short positions in an amount not greater than the underwriters’ option to purchase additional shares referred to above, or may be “naked” shorts, which are short positions in excess of that amount. The underwriters may close out any covered short position either by exercising their option to purchase additional shares from us, in whole or in part, or by purchasing shares in the open market. In making this determination, the underwriters will consider, among other things, the price of shares available for purchase in the open market compared to the price at which the underwriters may purchase shares through the option. A naked short position is more likely to be created if the underwriters are concerned that there may be downward pressure on the price of the common stock in the open market that could adversely affect investors who purchase in this offering. To the extent that the underwriters create a naked short position, they will purchase shares in the open market to cover the position.

The underwriters have advised us that, pursuant to Regulation M of the Securities Act of 1933, they may also engage in other activities that stabilize, maintain or otherwise affect the price of the common stock, including the imposition of penalty bids. This means that if the representatives of the underwriters purchase common stock in the open market in stabilizing transactions or to cover short sales, the representatives can require the underwriters that sold those shares as part of this offering to repay the underwriting discount received by them.

These activities may have the effect of raising or maintaining the market price of the common stock or preventing or retarding a decline in the market price of the common stock, and, as a result, the price of the common stock may be higher than the price that otherwise might exist in the open market. If the underwriters commence these activities, they may discontinue them at any time. The underwriters may carry out these transactions on the             , in the over-the-counter market or otherwise.

Prior to this offering, there has been no public market for our common stock. The initial public offering price will be determined by negotiations between us and the representatives of the underwriters. In determining the initial public offering price, we and the representatives of the underwriters expect to consider a number of factors including:

• the information set forth in this prospectus and otherwise available to the representatives;

• our prospects and the history and prospects for the industry in which we compete;

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• an assessment of our management;

• our prospects for future earnings;

• the general condition of the securities markets at the time of this offering;

• the recent market prices of, and demand for, publicly traded common stock of generally comparable companies; and

• other factors deemed relevant by the underwriters and us.

Neither we nor the underwriters can assure investors that an active trading market will develop for our common shares, or that the shares will trade in the public market at or above the initial public offering price.

Certain of the underwriters or their affiliates are customers of ours and engage in transactions with us in the ordinary course of business. Certain of the underwriters and their affiliates have provided in the past and may provide from time to time in the future certain commercial banking, financial advisory, investment banking and other services for us and our affiliates for which they have received and may continue to receive customary fees and commissions. For example, certain of the underwriters served as joint placement agents in connection with the private placement of our 5% Notes. Certain of the underwriters or their affiliates are holders of our convertible preferred stock and our 5% Notes. Certain of the underwriters or their affiliates are investors in, or lenders to, our PPA entities. In addition, certain of the underwriters or their affiliates provide lease financing to our customers in connection with the purchase of our Energy Servers.

In addition, from time to time, certain of the underwriters and their affiliates may effect transactions for their own account or the account of customers, and hold on behalf of themselves or their customers, long or short positions in our debt or equity securities or loans, and may do so in the future.

Selling Restrictions

General

Other than in the United States, no action has been taken by us or the underwriters that would permit a public offering of the securities offered by this prospectus in any jurisdiction where action for that purpose is required. The securities offered by this prospectus may not be offered or sold, directly or indirectly, nor may this prospectus or any other offering material or advertisements in connection with the offer and sale of any such securities be distributed or published in any jurisdiction, except under circumstances that will result in compliance with the applicable rules and regulations of that jurisdiction. Persons into whose possession this prospectus comes are advised to inform themselves about and to observe any restrictions relating to the offering and the distribution of this prospectus. This prospectus does not constitute an offer to sell or a solicitation of an offer to buy any securities offered by this prospectus in any jurisdiction in which such an offer or a solicitation is unlawful.

Notice to Prospective Investors in the European Economic Area

In relation to each Member State of the European Economic Area (each, a “Relevant Member State”), no offer of shares may be made to the public in that Relevant Member State other than:

A. to any legal entity which is a qualified investor as defined in the Prospectus Directive;

B. to fewer than 100 or, if the Relevant Member State has implemented the relevant provision of the 2010 PD Amending Directive, 150, natural or legal persons (other than qualified investors as defined in the Prospectus Directive), as permitted under the Prospectus Directive, subject to obtaining the prior consent of the representatives; or

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C. in any other circumstances falling within Article 3(2) of the Prospectus Directive,

provided that no such offer of shares shall require us or the representatives to publish a prospectus pursuant to Article 3 of the Prospectus Directive or supplement a prospectus pursuant to Article 16 of the Prospectus Directive.

Each person in a Relevant Member State who initially acquires any shares or to whom any offer is made will be deemed to have represented, acknowledged and agreed that it is a “qualified investor” within the meaning of the law in that Relevant Member State implementing Article 2(1)(e) of the Prospectus Directive. In the case of any shares being offered to a financial intermediary as that term is used in Article 3(2) of the Prospectus Directive, each such financial intermediary will be deemed to have represented, acknowledged and agreed that the shares acquired by it in the offer have not been acquired on a non-discretionary basis on behalf of, nor have they been acquired with a view to their offer or resale to, persons in circumstances which may give rise to an offer of any shares to the public other than their offer or resale in a Relevant Member State to qualified investors as so defined or in circumstances in which the prior consent of the representatives has been obtained to each such proposed offer or resale.

We, the representatives and their affiliates will rely upon the truth and accuracy of the foregoing representations, acknowledgements and agreements.

This prospectus has been prepared on the basis that any offer of shares in any Relevant Member State will be made pursuant to an exemption under the Prospectus Directive from the requirement to publish a prospectus for offers of shares. Accordingly any person making or intending to make an offer in that Relevant Member State of shares which are the subject of the offering contemplated in this prospectus may only do so in circumstances in which no obligation arises for us or any of the underwriters to publish a prospectus pursuant to Article 3 of the Prospectus Directive in relation to such offer. Neither we nor the underwriters have authorized, nor do they authorize, the making of any offer of shares in circumstances in which an obligation arises for us or the underwriters to publish a prospectus for such offer.

For the purpose of the above provisions, the expression “an offer to the public” in relation to any shares in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the shares to be offered so as to enable an investor to decide to purchase or subscribe the shares, as the same may be varied in the Relevant Member State by any measure implementing the Prospectus Directive in the Relevant Member State and the expression “Prospectus Directive” means Directive 2003/71/EC (including the 2010 PD Amending Directive, to the extent implemented in the Relevant Member States) and includes any relevant implementing measure in the Relevant Member State and the expression “2010 PD Amending Directive” means Directive 2010/73/EU.

Notice to Prospective Investors in the United Kingdom

In addition, in the United Kingdom, this document is being distributed only to, and is directed only at, and any offer subsequently made may only be directed at persons who are “qualified investors” (as defined in the Prospectus Directive) (i) who have professional experience in matters relating to investments falling within Article 19 (5) of the Financial Services and Markets Act 2000 (Financial Promotion) Order 2005, as amended (the Order) and/or (ii) who are high net worth companies (or persons to whom it may otherwise be lawfully communicated) falling within Article 49(2)(a) to (d) of the Order (all such persons together being referred to as relevant persons).

Any person in the United Kingdom that is not a relevant person should not act or rely on the information included in this document or use it as basis for taking any action. In the United Kingdom, any investment or investment activity that this document relates to may be made or taken exclusively by relevant persons. Any person in the United Kingdom that is not a relevant person should not act or rely on this document or any of its contents.

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Notice to Prospective Investors in Switzerland

The shares may not be publicly offered in Switzerland and will not be listed on the SIX Swiss Exchange (SIX) or on any other stock exchange or regulated trading facility in Switzerland. This document does not constitute a prospectus within the meaning of, and has been prepared without regard to the disclosure standards for issuance prospectuses under art. 652a or art. 1156 of the Swiss Code of Obligations or the disclosure standards for listing prospectuses under art. 27 ff. of the SIX Listing Rules or the listing rules of any other stock exchange or regulated trading facility in Switzerland. Neither this document nor any other offering or marketing material relating to the shares or the offering may be publicly distributed or otherwise made publicly available in Switzerland.

Neither this document nor any other offering or marketing material relating to the offering, us or the shares have been or will be filed with or approved by any Swiss regulatory authority. In particular, this document will not be filed with, and the offer of shares will not be supervised by, the Swiss Financial Market Supervisory Authority FINMA (FINMA), and the offer of shares has not been and will not be authorized under the Swiss Federal Act on Collective Investment Schemes (CISA). The investor protection afforded to acquirers of interests in collective investment schemes under the CISA does not extend to acquirers of shares.

Notice to Prospective Investors in the Dubai International Financial Centre (DIFC)

This document relates to an Exempt Offer in accordance with the Markets Rules 2012 of the Dubai Financial Services Authority (DFSA). This document is intended for distribution only to persons of a type specified in the Markets Rules 2012 of the DFSA. It must not be delivered to, or relied on by, any other person. The DFSA has no responsibility for reviewing or verifying any documents in connection with Exempt Offers. The DFSA has not approved this prospectus supplement nor taken steps to verify the information set forth herein and has no responsibility for this document. The securities to which this document relates may be illiquid and/or subject to restrictions on their resale. Prospective purchasers of the securities offered should conduct their own due diligence on the securities. If you do not understand the contents of this document you should consult an authorized financial advisor.

In relation to its use in the DIFC, this document is strictly private and confidential and is being distributed to a limited number of investors and must not be provided to any person other than the original recipient, and may not be reproduced or used for any other purpose. The interests in the securities may not be offered or sold directly or indirectly to the public in the DIFC.

Notice to Prospective Investors in Australia

This document:

• does not constitute a disclosure document under Chapter 6D.2 of the Corporations Act 2001 (Cth) (Corporations Act);

• has not been, and will not be, lodged with the Australian Securities and Investments Commission (ASIC), as a disclosure document for the purposes of the Corporations Act and does not purport to include the information required of a disclosure document under Chapter 6D.2 of the Corporations Act; and

• may only be provided in Australia to select investors who are able to demonstrate that they fall within one or more of the categories of investors, or Exempt Investors, available under section 708 of the Corporations Act.

The shares may not be directly or indirectly offered for subscription or purchased or sold, and no invitations to subscribe for or buy the shares may be issued, and no draft or definitive offering memorandum, advertisement or other offering material relating to any shares may be distributed in Australia, except where disclosure to

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investors is not required under Chapter 6D of the Corporations Act or is otherwise in compliance with all applicable Australian laws and regulations. By submitting an application for the shares, you represent and warrant to us that you are an Exempt Investor.

As any offer of shares under this document will be made without disclosure in Australia under Chapter 6D.2 of the Corporations Act, the offer of those securities for resale in Australia within 12 months may, under section 707 of the Corporations Act, require disclosure to investors under Chapter 6D.2 if none of the exemptions in section 708 applies to that resale. By applying for the shares you undertake to us that you will not, for a period of 12 months from the date of issue of the shares, offer, transfer, assign or otherwise alienate those securities to investors in Australia except in circumstances where disclosure to investors is not required under Chapter 6D.2 of the Corporations Act or where a compliant disclosure document is prepared and lodged with ASIC.

Notice to Prospective Investors in Hong Kong

The shares have not been offered or sold and will not be offered or sold in Hong Kong, by means of any document, other than (a) to “professional investors” as defined in the Securities and Futures Ordinance (Cap. 571) of Hong Kong and any rules made under that Ordinance; or (b) in other circumstances which do not result in the document being a “prospectus” as defined in the Companies Ordinance (Cap. 32) of Hong Kong or which do not constitute an offer to the public within the meaning of that Ordinance. No advertisement, invitation or document relating to the shares has been or may be issued or has been or may be in the possession of any person for the purposes of issue, whether in Hong Kong or elsewhere, which is directed at, or the contents of which are likely to be accessed or read by, the public of Hong Kong (except if permitted to do so under the securities laws of Hong Kong) other than with respect to shares which are or are intended to be disposed of only to persons outside Hong Kong or only to “professional investors” as defined in the Securities and Futures Ordinance and any rules made under that Ordinance.

Notice to Prospective Investors in Singapore

This prospectus has not been registered as a prospectus with the Monetary Authority of Singapore. Accordingly, this prospectus and any other document or material in connection with the offer or sale, or invitation for subscription or purchase, of shares may not be circulated or distributed, nor may the shares be offered or sold, or be made the subject of an invitation for subscription or purchase, whether directly or indirectly, to persons in Singapore other than (i) to an institutional investor under Section 274 of the Securities and Futures Act, Chapter 289 of Singapore (SFA), (ii) to a relevant person pursuant to Section 275(1), or any person pursuant to Section 275(1A), and in accordance with the conditions specified in Section 275, of the SFA, or (iii) otherwise pursuant to, and in accordance with the conditions of, any other applicable provision of the SFA.

Where the shares are subscribed or purchased under Section 275 of the SFA by a relevant person which is:

(a) a corporation (which is not an accredited investor (as defined in Section 4A of the SFA)) the sole business of which is to hold investments and the entire share capital of which is owned by one or more individuals, each of whom is an accredited investor; or

(b) a trust (where the trustee is not an accredited investor) whose sole purpose is to hold investments and each beneficiary of the trust is an individual who is an accredited investor,

securities (as defined in Section 239(1) of the SFA) of that corporation or the beneficiaries’ rights and interest (howsoever described) in that trust shall not be transferred within six months after that corporation or that trust has acquired the shares pursuant to an offer made under Section 275 of the SFA except:

(a) to an institutional investor or to a relevant person defined in Section 275(2) of the SFA, or to any person arising from an offer referred to in Section 275(1A) or Section 276(4)(i)(B) of the SFA;

(b) where no consideration is or will be given for the transfer;

157

(c) where the transfer is by operation of law;

(d) as specified in Section 276(7) of the SFA; or

(e) as specified in Regulation 32 of the Securities and Futures (Offers of Investments) (Shares and Debentures) Regulations 2005 of Singapore.

Notice to Prospective Investors in Japan

The shares have not been and will not be registered under the Financial Instruments and Exchange Act. Accordingly, the shares may not be offered or sold, directly or indirectly, in Japan or to, or for the benefit of, any resident of Japan (which term as used herein means any person resident in Japan, including any corporation or other entity organized under the laws of Japan), or to others for re-offering or resale, directly or indirectly, in Japan or to or for the benefit of a resident of Japan, except pursuant to an exemption from the registration requirements of, and otherwise in compliance with, the Financial Instruments and Exchange Act and any other applicable laws, regulations and ministerial guidelines of Japan.

Notice to Prospective Investors in New Zealand

This prospectus has not been registered with the office of the Registrar of Companies in New Zealand and is not a registered prospectus or investment statement for the purposes of New Zealand law.

The provision of this prospectus to any person in New Zealand does not constitute an offer of the shares of our common stock to that person or an invitation to that person to subscribe for the shares of our common stock other than (i) to any or all of the following persons only (A) to persons whose principal business is the investment of money or who, in the course of and for the purposes of their business, habitually invest money, and/or (B) persons who are each required to pay a minimum subscription price of at least NZ$500,000 for the shares of our common stock, and/or (C) any other person who in all the circumstances can properly be regarded as having been selected other than as members of the public; or (ii) to eligible persons only in accordance with section 5(2CB) of the Securities Act 1978 (New Zealand).

No investor shall subscribe for, offer, sell or deliver any shares of our common stock or distribute this prospectus or any advertisement relating to the shares of our common stock in breach of the Securities Act 1978 and, in particular, no investor shall offer for sale shares of our common stock to any member of the public in New Zealand in breach of the Securities Act 1978. By subscribing for the shares of our common stock, each investor: (a) warrants it is a person described in paragraph (i) or (ii) above and (b) undertakes to comply with the above selling restrictions.

Notice to Prospective Investors in Chile

The shares are not registered in the Securities Registry (Registro de Valores) or subject to the control of the Chilean Securities and Exchange Commission (Superintendencia de Valores y Seguros de Chile). This prospectus and other offering materials relating to the offer of the shares do not constitute a public offer of, or an invitation to subscribe for or purchase, the shares in the Republic of Chile, other than to individually identified purchasers pursuant to a private offering within the meaning of Article 4 of the Chilean Securities Market Act (Ley de Mercado de Valores) (an offer that is not “addressed to the public at large or to a certain sector or specific group of the public”).

Notice to Prospective Investors in Canada

The shares may be sold only to purchasers purchasing, or deemed to be purchasing, as principal that are accredited investors, as defined in National Instrument 45-106 Prospectus Exemptions or subsection 73.3(1) of the Securities Act (Ontario), and are permitted clients, as defined in National Instrument 31-103 Registration

158

Requirements, Exemptions and Ongoing Registrant Obligations. Any resale of the shares must be made in accordance with an exemption from, or in a transaction not subject to, the prospectus requirements of applicable securities laws.

Securities legislation in certain provinces or territories of Canada may provide a purchaser with remedies for rescission or damages if this prospectus (including any amendment thereto) contains a misrepresentation, provided that the remedies for rescission or damages are exercised by the purchaser within the time limit prescribed by the securities legislation of the purchaser’s province or territory. The purchaser should refer to any applicable provisions of the securities legislation of the purchaser’s province or territory for particulars of these rights or consult with a legal advisor.

Pursuant to section 3A.3 (or, in the case of securities issued or guaranteed by the government of a non-Canadian jurisdiction, section 3A.4) of National Instrument 33-105 Underwriting Conflicts (NI 33-105), the underwriters are not required to comply with the disclosure requirements of NI 33-105 regarding underwriter conflicts of interest in connection with this offering.

159

EXPERTS

The consolidated financial statements of Bloom Energy Corporation as of December 31, 2014 and 2015, and for each of the two years in the period ended December 31, 2015, included in this prospectus have been so included in the reliance on the report of PricewaterhouseCoopers LLP, an independent registered public accounting firm, given on the authority of said firm as experts in accounting and auditing.

LEGAL MATTERS

The validity of the shares of common stock offered hereby will be passed upon for us by Fenwick & West LLP, Mountain View, California. Davis Polk & Wardwell LLP, Menlo Park, California, is acting as counsel to the underwriters.

WHERE YOU CAN FIND MORE INFORMATION

We have filed with the SEC a registration statement on Form S-1 under the Securities Act with respect to this offering of our common stock. This prospectus, which constitutes a part of the registration statement, does not contain all of the information set forth in the registration statement, some items of which are contained in exhibits to the registration statement as permitted by the rules and regulations of the SEC. For further information with respect to us and our common stock, we refer you to the registration statement, including the exhibits and the financial statements and notes filed as a part of the registration statement. Statements contained in this prospectus concerning the contents of any contract or any other document are not necessarily complete. If a contract or document has been filed as an exhibit to the registration statement, please see the copy of the contract or document that has been filed. Each statement in this prospectus relating to a contract or document filed as an exhibit is qualified in all respects by the filed exhibit. A copy of the registration statement, including the exhibits and the consolidated financial statements and related notes filed as a part of the registration statement, may be inspected without charge at the SEC’s Public Reference Room at 100 F Street, N.E., Washington, D.C. 20549, and copies of all or any part of the registration statement may be obtained from the SEC upon the payment of fees prescribed by it. You may call the SEC at (800) SEC-0330 for more information on the operation of the public reference facilities. The SEC maintains a website at www.sec.gov that contains reports, proxy and information statements, and other information regarding companies that file electronically with it.

As a result of this offering, we will become subject to the information and reporting requirements of the Exchange Act, and, in accordance with this law, will file periodic reports, proxy statements, and other information with the SEC. These periodic reports, proxy statements, and other information will be available for inspection and copying at the SEC’s public reference facilities and the website of the SEC referred to above. We also maintain a website at www.bloomenergy.com. Upon the completion of this offering, you may access these materials free of charge as soon as reasonably practicable after they are electronically filed with, or furnished to, the SEC. Information contained on our website is not a part of this prospectus and the inclusion of our website address in this prospectus is an inactive textual reference only.

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BLOOM ENERGY CORPORATION

INDEX TO CONSOLIDATED FINANCIAL STATEMENTS

Report of Independent Registered Public Accounting Firm	F-2
Consolidated Balance Sheets	F-3
Consolidated Statements of Operations	F-4
Consolidated Statements of Comprehensive Loss	F-5
Consolidated Statements of Convertible Redeemable Preferred Stock and Stockholders’ Deficit	F-6
Consolidated Statements of Cash Flows	F-7
Notes to Consolidated Financial Statements	F-8

F-1

Report of Independent Registered Public Accounting Firm

To the Stockholders and the Board of Directors of Bloom Energy Corporation

In our opinion, the accompanying Consolidated Balance Sheets and the related Consolidated Statements of Operations, Comprehensive Loss, Convertible Redeemable Preferred Stock and Stockholders’ Deficit, and Cash Flows present fairly, in all material respects, the financial position of Bloom Energy Corporation and its subsidiaries at December 31, 2014 and December 31, 2015, and the results of their operations and their cash flows for each of the two years in the period ended December 31, 2015 in conformity with accounting principles generally accepted in the United States of America. These financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on these financial statements based on our audits. We conducted our audits of these statements in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements, assessing the accounting principles used and significant estimates made by management, and evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion.

/s/ PricewaterhouseCoopers LLP

March 23, 2016

San Jose, California

F-2

Bloom Energy Corporation

Consolidated Balance Sheets

(dollars in thousands, except for share and per share data)

	December 31,
	2014			2015
Assets
Current assets
Cash and cash equivalents ($8,819 and $8,976, respectively)	$	107,028		$	135,030
Restricted cash ($90,131 and $31,956, respectively)		98,272			43,733
Accounts receivable ($5,468 and $6,382, respectively)		23,184			34,465
Inventories ($1,241 and $93, respectively)		116,908			82,946
Deferred cost of revenue		74,992			72,629
Customer financing receivable ($8,531 and $5,906, respectively)		8,531			5,906
Prepaid expenses and other current assets ($4,368 and $7,497, respectively)		12,887			16,179
Total current assets		441,802			390,888
Property, plant and equipment, net ($156,597 and $270,889, respectively)		256,327			354,540
Customer financing receivable, non-current ($124,397 and $86,941, respectively)		124,396			86,941
Restricted cash ($35,651 and $31,923, respectively)		52,682			47,574
Deferred cost of revenue, non-current		16,461			24,903
Other long-term assets ($5,559 and $6,505, respectively)		35,240			39,655
Total assets	$	926,908		$	944,501
Liabilities, Convertible Redeemable Preferred Stock and Stockholders’ Deficit
Current liabilities
Accounts payable ($1,513 and $1,229, respectively)	$	34,831		$	36,698
Accrued warranty		32,208			26,843
Accrued other current liabilities ($6,999 and $16,944, respectively)		32,757			51,976
Deferred revenue and customer deposits ($0 and $313, respectively)		74,446			72,217
Current portion of debt ($13,674 and $29,424, respectively)		54,606			33,926
Current portion of debt from related parties ($226 and $200, respectively)		226			200
Total current liabilities		229,074			221,860
Preferred stock warrant liabilities		19,626			17,027
Derivative liabilities		—			64,675
Long-term portion of debt ($233,860 and $263,678, respectively)		346,694			536,084
Long-term portion of debt from related parties ($37,184 and $37,101, respectively)		67,352			69,772
Other long-term liabilities ($16,405 and $32,331, respectively)		96,876			129,234
Total liabilities		759,622			1,038,652
Commitments and contingencies (Note 17)
Redeemable noncontrolling interest		63,601			62,419
Convertible redeemable preferred stock: 120,692,417 and 120,692,417 shares authorized at December 31, 2014 and 2015, respectively; and 107,325,783 and 107,425,783 shares issued and outstanding at December 31, 2014 and 2015, respectively (Aggregate liquidation preference of $1,434,922 and $1,437,498 at December 31, 2014 and 2015, respectively)		1,456,931			1,459,506
Stockholders’ deficit
Common stock: $0.0001 par value; and 161,000,000 and 170,000,000 shares authorized at December 31, 2014 and 2015, respectively; and 14,337,067 and 14,907,904 shares issued and outstanding at December 31, 2014 and 2015, respectively		1			1
Additional paid-in capital		80,902			102,449
Accumulated other comprehensive loss		(896	)		(844	)
Accumulated deficit		(1,447,387	)		(1,788,390	)
Total stockholders’ deficit		(1,367,380	)		(1,686,784	)
Noncontrolling interest		14,134			70,708
Total deficit		(1,289,645	)		(1,553,657	)
Total liabilities, convertible redeemable preferred stock and deficit	$	926,908		$	944,501

Asset and liability amounts in parentheses represent the portion of the consolidated balance attributable to the variable interest entity.

The accompanying notes are an integral part of these consolidated financial statements.

F-3

Bloom Energy Corporation

Consolidated Statements of Operations

(in thousands, except for per share data)

	Years Ended December 31,
	2014			2015
Revenue
Product	$	174,450		$	122,441
Service		26,437			36,944
Electricity		47,253			55,311
Subtotal		248,140			214,696
PPA I decommissioning		—			(41,807	)
Total revenue		248,140			172,889
Cost of revenue
Product		231,800			187,731
Service		105,657			135,470
Electricity		24,305			31,372
Total cost of revenue		361,762			354,573
Gross profit (loss)		(113,622	)		(181,684	)
Operating expenses
Research and development		53,001			43,933
Sales and marketing		16,434			19,543
General and administrative		50,573			58,976
Total operating expenses		120,008			122,452
Loss from operations		(233,630	)		(304,136	)
Interest expense		(21,606	)		(40,633	)
Other expense, net		(4,350	)		(2,891	)
Gain (loss) on revaluation of warrant liabilities		(1,825	)		2,686
Net loss before income taxes		(261,411	)		(344,974	)
Income tax provision		574			707
Net loss		(261,985	)		(345,681	)
Net loss attributable to noncontrolling interests and redeemable noncontrolling interests		(44,369	)		(4,678	)
Net loss attributable to common stockholders	$	(217,616	)	$	(341,003	)
Net loss per share attributable to common stockholders:
Basic	$	(15.45	)	$	(23.34	)
Diluted	$	(15.45	)	$	(23.34	)
Weighted average shares used to compute net loss per share attributable to common stockholders:
Basic		14,088			14,611
Diluted		14,088			14,611
Pro forma net loss per share attributable to common stockholders basic and diluted				$	(2.61	)
Pro forma weighted average shares used to compute pro forma net loss per share attributable to common stockholders basic and diluted					130,554

The accompanying notes are an integral part of these consolidated financial statements.

F-4

Bloom Energy Corporation

Consolidated Statements of Comprehensive Loss

(in thousands)

	Years Ended December 31,
	2014			2015
Net loss attributable to common stockholders	$	(217,616	)	$	(341,003	)
Other comprehensive loss
Change in effective portion of interest rate swap agreement		(150	)		(3,981	)
Other comprehensive loss		(150	)		(3,981	)
Comprehensive loss		(217,766	)		(344,984	)
Comprehensive loss attributable to noncontrolling interests and redeemable noncontrolling interests		—			4,033
Comprehensive loss attributable to common stockholders	$	(217,766	)	$	(340,951	)

The accompanying notes are an integral part of these consolidated financial statements.

F-5

Bloom Energy Corporation

Consolidated Statements of Convertible Redeemable Preferred Stock and Stockholders’ Deficit

(dollars in thousands, except for share and per share data)

	Convertible Redeemable Preferred Stock				Redeemable Non Controlling Interest			Common Stock				Additional Paid-In Capital		Accumulated Other Comprehensive Loss			Accumulated Deficit			Noncontrolling Interest			Total Deficit
	Shares		Amount					Shares		Amount
Balances at December 31, 2013		107,206,374	$	1,453,867	$	171,835			13,655,216	$	1	$	60,595	$	(746	)	$	(1,229,771	)	$	—		$	(998,086	)
Contributions from noncontrolling interests		—		—		12,094			—		—		—		—			—			15,297			27,391
Issuance of shares of Series G convertible preferred stock		119,409		3,064		—			—		—		—		—			—			—			—
Issuance of warrants for common stock		—		—		—			—		—		405		—			—			—			405
Exercise of stock options		—		—		—			681,851		—		1,655		—			—			—			1,655
Stock-based compensation expense		—		—		—			—		—		18,247		—			—			—			18,247
Change in effective portion of interest rate swap agreement		—		—		—			—		—		—		(150	)		—			—			(150	)
Distributions to noncontrolling interests		—		—		(77,122	)		—		—		—		—			—			—			(77,122	)
Net loss		—		—		(43,206	)		—		—		—		—			(217,616	)		(1,163	)		(261,985	)
Balances at December 31, 2014		107,325,783	$	1,456,931	$	63,601			14,337,067	$	1	$	80,902	$	(896	)	$	(1,447,387	)	$	14,134		$	(1,289,645	)
Contributions from noncontrolling interests		—		—		3,802			—		—		—		—			—			73,316			77,118
Issuance of shares of Series G convertible preferred stock		100,000		2,575		—			—		—		—		—			—			—			—
Exercise of stock options		—		—		—			569,837		—		627		—			—			—			627
Issuance of restricted stock awards		—		—		—			1,000		—		21		—			—			—			21
Stock-based compensation expense		—		—		—			—		—		20,899		—			—			—			20,899
Change in effective portion of interest rate swap agreement		—		—		—			—		—		—		52			—			(4,033	)		(3,981	)
Distributions to noncontrolling interests		—		—		(8,013	)		—		—		—		—			—			(5,002	)		(13,015	)
Net loss		—		—		3,029			—		—		—		—			(341,003	)		(7,707	)		(345,681	)
Balances at December 31, 2015		107,425,783	$	1,459,506	$	62,419			14,907,904	$	1	$	102,449	$	(844	)	$	(1,788,390	)	$	70,708		$	(1,553,657	)

The accompanying notes are an integral part of these consolidated financial statements.

F-6

Bloom Energy Corporation

Consolidated Statements of Cash Flows

(dollars in thousands, except for share and per share data)

	Years Ended December 31,
	2014			2015
Cash flows from operating activities:
Net loss attributable to common stockholders	$	(217,616	)	$	(341,003	)
Adjustments to reconcile net loss to net cash used in operating activities:
Loss attributable to noncontrolling and redeemable noncontrolling interests		(44,369	)		(4,678	)
Depreciation and amortization		30,114			35,639
Loss of disposal of property, plant and equipment		2,519			297
Impairment of assets		—			3,022
PPA I decommissioning		—			41,732
Revaluation of derivative contracts		1,103			4,910
Stock-based compensation		18,247			20,899
Loss on long term REC purchase contract		878			3,029
Revaluation of preferred stock warrants		1,825			(2,599	)
Accretion of interest expense from preferred stock warrants		1,072			1,221
Amortization of debt issuance cost		737			1,999
Changes in operating assets and liabilities:
Accounts receivable		7,761			(11,281	)
Inventories		(10,938	)		33,963
Deferred cost of revenue		(67,616	)		(6,079	)
Customer financing receivable and others		(44,327	)		(119,060	)
Prepaid expenses and other current assets		(573	)		(4,674	)
Other long-term assets		(6,861	)		(5,375	)
Accounts payable		8,787			1,868
Accrued warranty		(16,376	)		(5,365	)
Accrued payroll and related expenses		(3,294	)		1,713
Accrued other current liabilities		(4,393	)		6,059
Deferred revenue and customer deposits		60,996			16,608
Other long-term liabilities		1,215			17,464
Net cash used in operating activities		(281,109	)		(309,691	)
Cash flows from investing activities:
Purchase of property, plant and equipment		(14,392	)		(6,256	)
Change in restricted cash		(81,015	)		55,750
Net cash provided by (used in) investing activities		(95,407	)		49,494
Cash flows from financing activities:
Borrowings from issuance of debt and derivatives		218,985			285,834
Borrowings from issuance of debt to related parties		34,112			—
Repayment of debt		(28,625	)		(56,929	)
Repayment of debt to related parties		(165	)		(998	)
Debt issuance costs		(2,132	)		(10,309	)
Change in restricted cash related to debt financing		(12,519	)		3,896
Proceeds from noncontrolling and redeemable noncontrolling interests		27,391			77,118
Distributions to noncontrolling and redeemable noncontrolling interests		(76,604	)		(11,040	)
Proceeds from issuance of common stock		1,655			627
Receipts of U.S. Treasury grants		54,595			—
Proceeds from issuance of convertible preferred stock and preferred stock warrants, net		488			—
Issuance of loan		(5,000	)		—
Net cash provided by financing activities		212,181			288,199
Net increase (decrease) in cash and cash equivalents		(164,335	)		28,002
Cash and cash equivalents:
Beginning of year		271,363			107,028
End of year	$	107,028		$	135,030
Supplemental disclosure of cash flow information:
Cash paid during the period for interest	$	21,048		$	24,980
Cash paid during the period for taxes		726			804
Non-cash investing and financing activities:
Liabilities recorded for property, plant and equipment		104			80
Issuance of convertible preferred stock to settle liability		2,575			2,575
Issuance of preferred stock warrant to settle liability		11,903			—
Accrued distributions to tax equity investors		518			2,494
Accrued interest for notes		792			15,013
Transfer of inventory to Energy Servers		52,302			121,662

F-7

Bloom Energy Corporation

Notes to Consolidated Financial Statements

1. Nature of Business and Management’s Plans Regarding the Financing of Future Development Efforts

Nature of Business

Bloom Energy Corporation (together with its subsidiaries, the Company or Bloom Energy) designs, manufactures and sells solid-oxide fuel cell systems, or Energy Servers, for on-site power generation. The Company’s power generators or Energy Servers utilize an innovative fuel cell technology. The Energy Servers provide efficient energy generation with reduced operating costs and lower greenhouse gas emissions. By generating power where it is consumed, the systems offer increased electrical reliability and improved energy security while providing a path to energy independence. The Company was originally incorporated in Delaware under the name of Ion America Corporation on January 18, 2001 and was renamed on September 16, 2006 to Bloom Energy Corporation. To date, substantially all of the Company’s revenue has been derived from customers based in the United States. However, the Company intends to increase its sales efforts outside of the United States, with initial customer installations in India and Japan.

As of December 31, 2015, the Company has completed several rounds of private financing with gross proceeds totaling approximately $1.5 billion. The Company has incurred operating losses and negative cash flows from operations since its inception. The Company’s ability to achieve its long-term business objectives is dependent upon, among other things, raising additional capital, dependence on the acceptance of its products and attaining future profitability. Management believes that the Company will be successful in raising additional financing from its stockholders or from other sources, expanding operations and gaining market share. However, there can be no assurance that in the event the Company requires additional financing, such financing will be available on terms which are favorable or at all.

2. Significant Accounting Policies

Basis of Presentation and Principles of Consolidation

The consolidated financial statements have been prepared in conformity with U.S. generally accepted accounting principles (GAAP) and reflect the accounts and operations of the Company and those of its subsidiaries in which the Company has a controlling financial interest. The Company uses a qualitative approach in assessing the consolidation requirement for its variable interest entities, which the Company refers to as power purchase agreements (PPAs). This approach focuses on determining whether the Company has the power to direct the activities of the PPAs that most significantly affect the PPAs’ economic performance and whether the Company has the obligation to absorb losses, or the right to receive benefits, that could potentially be significant to the PPAs. For all periods presented, the Company has determined that it is the primary beneficiary in all of its operational PPAs. For additional information, see Note 13, Power Purchase Agreement Programs. The Company evaluates its relationships with the PPAs on an ongoing basis to ensure that it continues to be the primary beneficiary. All intercompany transactions and balances have been eliminated in consolidation. Certain prior period balances have been reclassified to conform to the current period presentation.

Components of Revenue and Cost of Revenue

Revenue

The Company primarily recognizes revenue from the sale and installation of Energy Servers and by providing services under extended operations and maintenance services contracts. These operations and maintenance services contracts are what the Company refers to as maintenance service agreements.

F-8

The Company’s total revenue is comprised of the following:

Product Revenue

All of the Company’s GAAP product revenue is generated from the sale and installation of our Energy Servers to direct purchase and lease customers. The Company generally begins to recognize product revenue from contracts with customers for the sales of its Energy Servers once the Company achieves acceptance; that is, generally when the system has been installed and running at full power for 24 hours.

All of the Company’s product arrangements contain multiple elements representing a combination of revenue from Energy Servers, installation and maintenance services. Upon acceptance, the Company allocates fair value to each of these elements, and the Company limits the amount of revenue recognized for delivered elements up to an amount that is not contingent upon future delivery of additional products or services or meeting any specified performance conditions. The sale of the Company’s Energy Servers also includes a one-year warranty, which is recorded as a component of cost of product revenue.

Service Revenue

Service revenue is generated from operations and maintenance services agreements that extend the standard warranty service coverage beyond the initial first year’s warranty for Energy Servers sold under direct purchase and lease sales. Customers can renew these agreements on an annual basis. Revenue is recognized from such operations and maintenance services ratably over the term of the renewed one-year service period. The Company anticipates that almost all of its customers will continue to renew their maintenance services agreement each year.

Electricity Revenue

The Company’s PPA entities purchase Energy Servers from the Company and sell the electricity produced by these systems to customers through long-term PPA agreements. Customers are required to purchase all of the electricity produced by the Energy Servers at agreed-upon rates over the course of the PPA agreements’ contractual term. The Company recognizes revenue from such PPA entities as the electricity is provided over the term of the agreement.

Cost of Product Revenue

Cost of product revenue consists of costs of Energy Servers that the Company sells to direct and lease customers, including costs paid to the Company’s materials suppliers, personnel costs, certain allocated costs, shipping costs, provisions for excess and obsolete inventory, and the depreciation costs of the Company’s equipment. Because the sale of the Company’s Energy Servers includes a one-year service warranty, cost of product revenue also includes first year warranty costs. The Company provides certain warranties and performance guarantees regarding the Energy Servers’ efficiency and output during the first year warranty period.

Cost of Service Revenue

Cost of service revenue consists of costs incurred under maintenance service contracts for all customers including direct sales, lease and PPA customers, including personnel costs for the Company’s customer support organization, certain allocated costs, and extended maintenance-related product repair and replacement costs. After the initial included warranty period expires, customers have the opportunity to renew warranty services under maintenance agreements for additional annual periods.

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Cost of Electricity Revenue

Cost of electricity revenue primarily consists of the depreciation of the cost of the Energy Servers owned by the Company’s PPA entities and the cost of gas purchased in connection with PPAs entered into by the Company’s first PPA entity. The cost of electricity revenue is generally recognized over the term of the customer’s PPA. The cost of depreciation of the Energy Servers is reduced by the amortization of any U.S. Treasury Department grant payment in lieu of the energy investment tax credit associated with these systems.

Management Estimates

The preparation of consolidated financial statements in conformity with U.S. generally accepted accounting principles requires management to make estimates and assumptions that affect the amounts reported in the consolidated financial statements and the accompanying notes. Significant estimates include

assumptions used to compute the best estimate of selling-prices (BESP), fair value of lease and non-lease components, such as estimated output, efficiency and residual value of the Energy Servers, estimates for inventory write-downs, estimates for future cash flows and economic useful lives of property, plant and equipment, other long-term assets, valuation of certain accrued liabilities, such as derivative valuations, accrued warranty and extended maintenance and estimates for recapture of U.S. Treasury grants, income taxes and deferred tax asset valuation allowances, warrant liabilities, stock-based compensation costs, and allocation of profit and losses to the noncontrolling interests. Actual results could differ materially from these estimates under different assumptions and conditions.

Foreign Currency Transactions

The functional currency of the Company’s foreign subsidiaries is the U.S. dollar since they are considered financially and operationally integrated. Foreign currency monetary assets and liabilities are remeasured into U.S. dollars at end-of-period exchange rates. Nonmonetary assets and liabilities such as property, plant and equipment, and equity are remeasured at historical exchange rates. Revenue and expenses are remeasured at average exchange rates in effect during each period, except for those expenses related to the previously noted balance sheet amounts, which are remeasured at historical exchange rates. Transaction gains and losses are included as a component of other expense, net in the Company’s consolidated statements of operations and have not been significant for all periods presented.

Cash, Cash Equivalents, and Restricted Cash

The Company considers highly liquid investments with maturities of 90 days or less at the date of purchase as cash equivalents.

Restricted cash is held as collateral to provide financial assurance that the Company will fulfill commitments related to its power purchase agreement financings, debt service reserves, maintenance service reserves and facility lease agreements. Restricted cash that is expected to be used within one year of the balance sheet date is classified as a current asset and that which is expected to be used more than a year from the balance sheet date is classified as a non-current asset. Changes in restricted cash for PPA companies which are related to debt service reserves are presented under financing activities on the statements of cash flows and changes in restricted cash related to other restrictions are presented under investing activities.

As of December 31, 2014 and 2015, the Company had restricted cash of $151.0 million and $91.3 million, respectively.

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Derivative Financial Instruments

The Company enters into derivative forward contracts to manage its exposure relating to the fluctuating price of fuel under certain of its power purchase agreements entered in connection with the Bloom Electrons program (refer to Note 13, Power Purchase Agreement Programs, for more information). In addition, the Company enters into fixed forward swap arrangements to convert variable interest rates on debt to a fixed rate. The Company also issued derivative financial instruments embedded in its 5% Notes to provide additional incentive to investors. The Company used these derivative financial instruments in order to obtain a lower cost cash-source of funds.

Derivative transactions are governed by procedures covering areas such as authorization, counterparty exposure and hedging practices. Positions are monitored based on changes in the spot price in the commodity market and their impact on the market value of derivatives. Credit risk on derivatives arises from the potential for counterparties to default on their contractual obligations to the Company. The Company limits its credit risk by dealing with counterparties that are considered to be of high credit quality. The Company does not enter into derivative transactions for trading or speculative purposes.

The Company accounts for its derivative instruments as either assets or liabilities and carries them at fair value on the consolidated balance sheets. Changes in the fair value of the derivatives that qualify and are designated as cash flow hedges are recorded in other comprehensive loss on the consolidated balance sheets and for those that do not qualify for hedge accounting or are not designated as hedges are recorded through earnings in the consolidated statements of operations.

While the Company hedges certain of its natural gas requirements under its power purchase agreements, it has not designated these forward contracts as hedges for accounting purposes. Therefore, the Company records the change in the fair value of its forward contracts in cost of revenue on the consolidated statements of operations. The fair value of the forward contracts is recorded on the consolidated balance sheets as a component of accrued other current liabilities and other long-term liabilities.

The Company’s interest rate swap arrangements qualify as cash flow hedges for accounting purposes as they effectively convert variable rate obligations into fixed rate obligations. The Company evaluates and calculates the effectiveness of the hedge at each reporting date using a FinCad model. The effective change is recorded in accumulated other comprehensive loss and will be recognized as interest expense on settlement. Ineffectiveness is recorded in other expense, net. If a cash flow hedge is discontinued due to changes in the forecasted hedged transactions, hedge accounting is discontinued prospectively and unrealized gain or loss on the related derivative is recorded in accumulated other comprehensive loss and reclassified into earnings in the same period during which the hedged forecasted transaction affects earnings. The fair value of the swap arrangement is recorded on the consolidated balance sheets as a component of accrued other current liabilities and other long-term liabilities.

The Company issued convertible notes with conversion features in December 2015. These embedded derivatives were evaluated under ASC topic 815-40 and were bifurcated from the debt and are classified as liabilities on the consolidated balance sheets. The Company records these derivative liabilities at fair value and adjusts the carrying value to their estimated fair value at each reporting date with the increases or decreases in the fair value recorded as a gain (loss) on revaluation of warrant liabilities in the consolidated statements of operations.

Fair Value Measurement

Financial Accounting Standards Board Accounting Standards Codification Topic 820, “Fair Value Measurements and Disclosures,” (ASC 820), defines fair value, establishes a framework for measuring fair value under generally accepted accounting principles and enhances disclosures about fair value measurements. Fair value is defined under ASC 820 as the exchange price that would be received for an asset or paid to transfer a liability (an exit price) in the principal or most advantageous market for the asset or liability in an orderly transaction between market participants on the measurement date. Valuation

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techniques used to measure fair value under ASC 820 must maximize the use of observable inputs and minimize the use of unobservable inputs. The guidance describes a fair value hierarchy based on three levels of inputs, of which the first two are considered observable and the last unobservable, that may be used to measure fair value which are the following:

Level 1	Quoted prices in active markets for identical assets or liabilities. Financial assets utilizing Level 1 inputs typically include money market securities and U.S. Treasury Securities.
Level 2	Inputs other than Level 1 that are observable, either directly or indirectly, such as quoted prices for similar assets or liabilities; quoted prices in markets that are not active; or other inputs that are observable or can be corroborated by observable market data for substantially the full term of the assets or liabilities. Financial instruments utilizing Level 2 inputs include interest rate swaps.
Level 3	Unobservable inputs that are supported by little or no market activity and that are significant to the fair value of the assets or liabilities. Financial liabilities utilizing Level 3 inputs include natural gas fixed price forward contract derivatives and warrants issued to purchase the Company’s preferred stock. Derivative liability valuations are performed based on a binomial lattice model and adjusted for illiquidity and/or nontransferability, and such adjustments are generally based on available market evidence.

Incentives and Grants

Self-Generation Incentive Program (SGIP)

The Company’s PPA entities receive payments under the SGIP which is a program specific to the State of California that provides financial incentives for the installation of new, qualifying self-generation equipment that the Company owns. The SGIP is considered to be government incentive receivables until received. For sales-type leases, the benefit of the SGIP is recorded as deferred revenue and is recognized as

revenue when the Energy Server is accepted. For operating leases, the benefit of the SGIP grant is recorded as deferred revenue and is amortized on a straight-line basis over the PPA contract period. The SGIP program issues 50% of the fully anticipated amount in the first year the equipment is placed into service. The remaining incentive is then paid based on the size of the equipment (i.e., nameplate kilowatt capacity) over the subsequent five years. The SGIP program will expire on January 1, 2021.

The Company received $1.3 million and $2.4 million of SGIP for the years ended December 31, 2014 and 2015, respectively. The SGIP program has operational criteria primarily related to fuel mixture and minimum output for the first five years after the qualified equipment is placed in service. If the operational criteria are not fulfilled, it could result in a partial refund of incentives received. There were no reductions or refunds of SGIP during the years ended December 31, 2014 and 2015 and no accrual has been made for a refund of any incentives.

For certain PPA entities, the Company makes SGIP reservations on behalf of the PPA entity. The PPA entity receives the SGIP incentives amounts directly from the program and, therefore, bears the risk of loss if these funds are not paid.

U.S. Treasury Grants

The Company is eligible for U.S. Treasury grants on eligible property as defined under Section 1603 of the American Recovery and Reinvestment Act of 2009. However, to be eligible for the U.S. Treasury grants, a fuel cell system must have commenced construction in 2011 either physically or through the occurrence of sufficient project costs. For fuel cell systems under PPA arrangements, U.S. Treasury grants are considered a component of minimum lease payments. For fuel cell systems deployed under tariff legislation, the Company recorded the fuel cell systems net of the U.S. Treasury grants. U.S. Treasury grant receivables are classified as other current assets in the Company’s consolidated balance sheets. For operating leases, the benefit of the U.S. Treasury grant is recorded as deferred revenue and is amortized on a straight-line basis

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over the PPA contract period. The Company placed in service the last property eligible for U.S. Treasury grants in November of 2013 and collected all of its outstanding remaining Treasury cash grants during 2014. In 2014, the Company received $54.6 million of U.S. Treasury grants and none was received in 2015.

The U.S. Treasury grant program has operational criteria for the first five years after the qualified equipment is placed in service. The criteria includes cash grant recapture provisions if the applicant disposes of the property to a disqualified person or the property ceases to qualify as a specified energy. If the operational criteria are not fulfilled, it could result in a partial refund of incentives received. Due to the restructuring of the Company’s first PPA entity, as discussed in Note 13, Power Purchase Agreement Programs, the Company accrued $10.0 million in estimated recapture refunds in 2015 that are expected to be paid during 2016.

Investment Tax Credits (ITC)

The Company’s fuel cell systems are eligible for federal investment tax credits, or ITCs, that accrue to eligible property under Internal Revenue Code Section 48 for its Energy Servers. Under PPA arrangements, ITCs are primarily passed through to tax equity investors. Approximately 1% to 10% of the incentives are received by the Company, with the balance distributed to the remaining investors of the PPA entity. These incentives are accounted for under the flow-through method.

The ITC program has operational criteria for the first five years after the qualified equipment is placed in service. If the qualified energy property is disposed of, or otherwise ceases to be investment credit property before the close of the five year recapture period is fulfilled, it could result in a partial reduction of the incentives. No ITC recapture has occurred during the years ended December 31, 2014 and 2015.

Renewable Energy Credits (RECs)

RECs, which are tradeable energy credits that represent 1 megawatt hour of electricity generated from an eligible renewable energy resource generated in the U.S, are primarily ‘held for use’ and are presented as part of other current assets in the consolidated balance sheets until the RECs are sold and accounted for as revenue. The Company accounts for such RECs as output from the facility where they originate. The Company values these RECs at the lower of cost or market at the end of each reporting period.

The Company also acquires RECs under stand-alone purchase agreements with third parties to satisfy REC obligations under certain power purchase agreements. Purchased RECs are recorded at cost and are presented as part of other current assets in the consolidated balance sheets. Costs of RECs purchased are expensed as the Company’s obligation to provide such RECs to customers occurs.

The Company estimates the number of excess RECs it will ultimately acquire under the noncancelable purchase contracts over the number required to satisfy its obligations to its customers. The Company records a purchase commitment loss if the fair value of RECs is less than the fixed purchase price amount. The purchase commitment loss is recorded on the consolidated balance sheets as a component of other long-term liabilities.

Concentrations of Credit Risk

Financial instruments that potentially subject the Company to a concentration of credit risk consist primarily of cash and cash equivalents, accounts receivables, and customer financing lease receivables. The Company conducts periodic evaluations of the creditworthiness of its customers and the collectability of its accounts receivable and financing leases receivable. The Company provides an allowance for potential credit losses as necessary based on historical experience. The Company has not experienced credit losses to date and has not provided an allowance for uncollectible accounts at December 31, 2014 and 2015.

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Concentrations of Customer and Geographic Risk

In 2015, total revenue from eBay, Inc. represented 14% of the Company’s total revenue. In 2014, total revenue from Apple, Inc. represented 27% of the Company’s total revenue. To date, substantially all of the Company’s revenue has been derived from customers based in the United States. However, the Company intends to increase its sales efforts outside of the United States, with initial customer installations in India and Japan.

Concentrations of Supply Risk

The Company’s products are manufactured using a rare earth mineral. The suppliers for this raw material are primarily located in Asia. A significant disruption in the operations of one or more of these suppliers could impact the production of the Company’s products which could have a material adverse effect on its business, financial condition and results of operations.

Customer Financing Receivables

Leases are classified as either operating or sales-type leases in accordance with the relevant accounting guidelines. Customer financing receivables are generated by Energy Servers leased to PPA entities’ customers in leasing arrangements that qualify as sales-type leases. Financing receivables represents the gross minimum lease payments to be received from customers and the system’s estimated residual value, net of unearned income and allowance for estimated losses. Initial direct costs for sales-type leases are recognized as cost of revenue when the Energy Servers are placed in service.

The Company reviews its customer financing receivables by aging category to identify significant customer balances with known disputes or collection issues. In determining the allowance, the Company makes judgments about the creditworthiness of a majority of its customers based on ongoing credit evaluations. The Company also considers its historical level of credit losses and current economic trends that might impact the level of future credit losses. The Company writes off customer financing receivables when they are deemed uncollectible. The Company has not had to maintain an allowance for doubtful accounts to reserve for potentially uncollectible customer financing receivables as historically, all of its receivables have been paid and it expects its current receivables on the consolidated balance sheets to be paid in full. For additional information, see Note 14, PPA I Decommissioning.

Accounts Receivable

Accounts receivable primarily represents trade receivables from sales to customers recorded at net realizable value. As the Company does for its customer financing receivables, the Company reviews its accounts receivable by aging category to identify significant customer balances with known disputes or collection issues. In determining the allowance, the Company makes judgments about the creditworthiness of a majority of its customers based on ongoing credit evaluations. The Company also considers its historical level of credit losses and current economic trends that might impact the level of future credit losses. The Company writes off accounts receivable when they are deemed uncollectible. The Company has not had to maintain an allowance for doubtful accounts to reserve for potentially uncollectible accounts receivable as historically, all of its receivables have been paid and it expects its current receivables on the consolidated balance sheets to be paid in full.

Inventories

Inventories consist principally of raw materials, work-in-process and finished goods and are stated on a first-in, first-out basis at the lower of cost or market value.

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The Company records inventory excess and obsolescence provisions for estimated obsolete or unsellable inventory, including inventory from purchase commitments, equal to the difference between the cost of inventory and estimated net realizable value based upon assumptions about market conditions and future demand for product, including product needed to fulfill the company’s warranty obligations. If actual future demand for the Company’s products is less than currently forecasted, additional inventory provisions may be required. Once a provision is recorded, it is maintained until the product to which it relates to is sold or otherwise disposed of.

Property, Plant and Equipment

Property, plant and equipment, including leasehold improvements, are stated at cost, less accumulated depreciation. Leasehold improvements are depreciated over the shorter of the lease term or their estimated depreciable lives, currently five years. Buildings are amortized over the shorter of the lease or property term or their estimated depreciable lives, currently 35 years. Energy Servers are depreciated to their residual values over the terms of the power purchase and tariff agreements.

Depreciation is calculated using the straight-line method over the estimated depreciable lives of the respective assets as follows:

	Depreciable Lives
Energy Servers	15-21 years
Computers, software and hardware	3-5 years
Machinery and equipment	5-10 years
Furniture and fixtures	3-5 years
Leasehold improvements	1-5 years
Buildings	35 years

Long-Lived Assets

The Company’s long-lived assets include property, plant and equipment. The carrying amounts of the Company’s long-lived assets are periodically reviewed for impairment whenever events or changes in circumstances indicate that the carrying value of these assets may not be recoverable or that the useful life is shorter than originally estimated. Factors that the Company considers in deciding when to perform an impairment review would include significant negative industry or economic trends and significant changes or planned changes in the Company’s use of the assets. Recoverability of these assets is measured by comparison of the carrying amount of each asset to the future undiscounted cash flows the asset is expected to generate over its remaining life. If the asset is considered to be impaired, the amount of any impairment is measured as the difference between the carrying value and the fair value of the impaired asset and the Company would recognize an impairment loss. If the useful life is shorter than originally estimated, the Company amortizes the remaining carrying value over the new shorter useful life. No material impairment of any long-lived assets was identified in the years ended December 31, 2014 or 2015. When assets are retired or disposed of, the assets and related accumulated depreciation and amortization are removed from our general ledger, and the resulting gain or loss is reflected in the consolidated statements of operations.

Revenue Recognition

The Company primarily earns revenue from the sale and installation of its Energy Servers to direct and lease customers, by providing services under its operations and maintenance services contracts, and by selling electricity to customers under PPA agreements. The Company offers its customers several ways to finance their purchase of a Bloom Energy Server. Customers may choose to purchase the Company’s Energy Servers outright. Customers may also lease the Company’s Energy Servers through one of the Company’s financing partners as a traditional lease. Finally, customers may purchase electricity through the Company’s PPA financing arrangements.

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The Company sells its Energy Servers directly to customers (direct sales) or enters into long term Power Purchase Agreements with customers, in which the customer is required to purchase 100% of the electricity produced by the Energy Servers at agreed-upon rates.

Direct Sales

To date, the Company has never sold an Energy Server without a maintenance service agreement, or vice-versa, nor does it have plans to in the near future. As a result, the Company recognizes revenue from contracts with customers for the sales of products and services included within these contracts in accordance with ASC 605-25 (revenue recognition for multiple-element arrangements).

Revenue from the sale and installation of Energy Servers to direct customers is recognized when all of the following criteria are met:

• Persuasive Evidence of an Arrangement Exists. The Company relies upon non-cancelable sales agreements and purchase orders to determine the existence of an arrangement.

• Delivery and Acceptance has Occurred. The Company uses shipping documents and confirmation from the Company’s installations team that the deployed systems are running at full power to verify delivery and acceptance.

• The Fee is Fixed or Determinable. The Company assesses whether the fee is fixed or determinable based on the payment terms associated with the transaction.

• Collectability is Reasonably Assured. The Company assesses collectability based on the customer’s credit analysis and payment history.

Most of the Company’s arrangements are multiple-element arrangements with a combination of Energy Servers, installation, and maintenance services. Products, including installation, and services generally qualify as separate units of accounting. For multiple-element arrangements, the Company allocates revenue to each unit of accounting based on an estimated selling price at the arrangement inception. The estimated selling price for each element is based upon the following hierarchy: vendor-specific objective evidence (VSOE) of selling price, if available; third-party evidence (TPE) of selling price, if VSOE of selling price is not available; or best estimate of selling price (BESP), if neither VSOE of selling price nor TPE of selling price are available. The total arrangement consideration is allocated to each separate unit of accounting using the relative estimated selling prices of each unit based on the aforementioned selling price hierarchy. The Company limits the amount of revenue recognized for delivered elements to an amount that is not contingent upon future delivery of additional products or services or meeting any specified performance conditions.

To determine the estimated selling price in multiple-element arrangements, the Company establishes VSOE of selling price using the prices charged for a deliverable when sold separately and, for maintenance, based on the renewal rates and discounts offered to customers. If VSOE of selling price cannot be established for a deliverable, the Company establishes TPE of selling price by evaluating similar competitor products or services in standalone arrangements with similarly situated customers. However, as the Company’s products contain a significant element of proprietary technology and offer substantially different features and functionality from its competitors, the Company is unable to obtain comparable pricing from its competitors’ products. Therefore, the Company has not been able to obtain reliable evidence of TPE of selling price. Given that the Company has never sold an Energy Server without a maintenance service agreement, and vice-versa, the Company has no evidence of selling prices for either and virtually no customers have elected to cancel their maintenance agreements and continue to operate the Energy Servers. The Company’s objective is to determine the price at which they would transact business if the items were being sold separately. As a result, the Company estimates its selling price driven primarily by its expected margin on both the Energy Server and maintenance service agreement based on their respective costs or, in the case of maintenance service agreements, the estimated costs to be incurred during the service period.

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Costs for servers include all direct and indirect manufacturing costs, applicable overhead costs and costs for normal production inefficiencies (i.e., variances). The Company then applies a margin to the Energy Servers to determine the selling price to be used in its BESP model. Costs for maintenance service arrangements are estimated over the life of the maintenance contracts and include estimated future service costs and future product costs. Product costs over the period of the service arrangement are impacted significantly by the longevity of the fuel cells themselves. After considering the total service costs, the Company applies a slightly lower margin to its service costs than to its Energy Servers because it intends to transact separate service sales at margins slightly below Energy Server margins.

The determination of BESP is made through consultation with and approval by the Company’s management. As the Company’s business offerings evolve over time, the Company may be required to modify its estimated selling prices in subsequent periods, and the Company’s revenue could be adversely affected.

The Company does not offer extended payment terms or rights of return for its products. Upon shipment of the product, the Company defers the product’s revenue until the acceptance criteria have been met. Such amounts are recorded within deferred revenue in the consolidated balance sheets. The related cost of such product is also deferred as a component of deferred cost in the consolidated balance sheets until customer acceptance. Prior to shipment of the product, any prepayment made by the customer is recorded as customer deposits. Customer deposits were $11.3 million and $21.1 million as of December 31, 2014 and 2015, respectively, and were included in deferred revenue and customer deposits in the consolidated balance sheets.

Extended Maintenance Services

The Company typically provides a standard one-year warranty against manufacturing or performance defects to its direct sales customers. The Company also sells to these customers extended maintenance services that effectively extend the standard warranty coverage at the customer’s option. These customers generally have an option to renew or cancel the extended maintenance services on an annual basis. Revenue is recognized from such extended maintenance services ratably over the term of the service (or annual renewal period) using the estimates of value, as discussed above.

PPA Sales (also refer to Note 13, Power Purchase Agreement Programs)

In 2010, the Company began offering its Energy Servers through its Bloom Electrons financing program. This program is financed via special purpose investment entities referred to as PPA entities and are owned partly by the Company and partly by third-party investors. The investors contribute cash to the PPA entity in exchange for their equity interest, which allows the PPA entities to purchase the Energy Server from the Company. As the Company identifies end customers, the PPA entity enters into an agreement with the end customer pursuant to which the customer agrees to purchase the power generated by the Energy Server at a specified rate per kilowatt hour for a specified term, which can range from 10 to 21 years. The PPA entity typically enters into a maintenance services agreement with the Company following the first year of service to extend the warranty service and performance guarantees. This intercompany arrangement is eliminated in consolidation. Those PPA agreements that qualify as leases are classified as either sales-type leases or operating leases and for those that do not qualify as leases are tariff agreements. For both operating leases and tariff arrangements, income is recognized as contractual amounts are due when the electricity is generated.

Sales-type Leases

Certain arrangements entered into by certain PPA entities, including Bloom Energy 2009 PPA Project Company, LLC (PPA I), 2012 ESA Project Company, LLC (PPA Company IIIa) and 2013B ESA Project Company, LLC (PPA Company IIIb), qualify as sales-type leases in accordance with Financial Accounting

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Standards Board Accounting Standards Codification Topic 840, Leases (ASC 840). The Company is responsible for the installation, operation and maintenance of the Energy Servers at the customer’s sites, including running the Energy Servers during the term of the power purchase agreements ranging from 10 to 15 years. The amount billed for the delivery of the electricity to PPA I’s customers primarily consists of returns on the amounts financed, including interest revenue, service revenue and fuel revenue for certain arrangements.

The other elements included as part of recurring payments from customers are allocated to revenue using the relative fair value method to both the lease and non-lease elements, including service revenue, which is considered an executory cost, fuel revenue, and interest revenue. Revenue and costs related to such elements are generally recognized over the term of the PPA arrangement. The customer has the option to purchase the Energy Servers at the then fair market value at the end of the term of the power purchase agreement. Service revenue related to sales-type leases of $10.3 million and $10.7 million for the years ended December 31, 2014 and 2015, respectively, is included in electricity revenue in the consolidated statements of operations. Fuel revenue of $5.3 million and $2.8 million for the years ended December 31, 2014 and 2015, respectively, is included in electricity revenue in the consolidated statements of operations. The interest component of the leased asset is deferred as unearned income and is recognized over the life of the lease term as a component of electricity revenue. Interest revenue of $2.9 million and $2.5 million for the years ended December 31, 2014 and 2015, respectively, is included in electricity revenue in the consolidated statements of operations.

Product revenue associated with the sale of the Energy Servers under the power purchase agreements that qualify as sales-type leases is recognized at the present value of the minimum lease payments, which approximates fair value, assuming all other conditions for revenue recognition noted above have also been met. A sale is typically recognized as revenue when an Energy Server begins generating electricity and has been accepted, which is consistent across all purchase options in that acceptance generally occurs after the Energy Server has been installed and running at full power for 24 hours.

Operating Leases

PPA arrangements entered into by PPA Company II, PPA Company IIIa, PPA Company IIIb, 2014 ESA Holdco, LLC (PPA Company IV) and 2015 ESA Holdco, LLC. (PPA Company V) that are, in substance, leases but do not meet the criteria of sales-type leases or direct financing leases in accordance with ASC 840 are accounted for as operating leases. Revenue under these arrangements is recognized as electricity is provided to the customer at rates specified under the contracts. During the years ended December 31, 2014 and 2015, revenue from electricity sales amounted to $2.2 million and $12.7 million, respectively.

Tariff Agreement

PPA Company II entered into an arrangement with Delmarva Power & Light Company (Delmarva), PJM Interconnection, (PJM), a regional transmission organization , and the State of Delaware (Delaware or the State), under which, PPA Company II provides the energy generated from its Energy Servers to PJM, and receives a tariff as collected by Delmarva.

Revenue at the tariff rate is recognized as electricity sales as it is generated over the term of the arrangement. Revenue relating to power generation at the Delmarva site of $36.7 million and $36.9 million for the years ended December 31, 2014 and 2015, respectively, is included in electricity sales in the consolidated statements of operations.

Sale-Leaseback

The Company is a party to master lease agreements that provide for the sale of Energy Servers to third-parties and the simultaneous leaseback of the systems, which the Company then subleases to its customers.

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In sale-leaseback arrangements, the Company first determines whether the Energy Servers under the sale-leaseback arrangement are “integral equipment.” An Energy Server is determined to be integral equipment when the cost to remove the system from its existing location, including the shipping costs of the Energy Server at the new site, including any diminution in fair value, exceeds 10% of the fair value of the Energy Server at the time of its original installation.

As the Energy Servers are determined not to be integral equipment, the Company determines if the leaseback is classified as a capital lease or an operating lease. For leasebacks classified as capital leases, the Company initially records a capital lease asset and capital lease obligation in its consolidated balance sheet equal to the lower of the present value of its future minimum leaseback payments or the fair value of the Energy Servers. For capital leasebacks, the Company does not recognize any revenue but defers the gross profit comprising the net of the revenue and the associated cost of sale. For leasebacks classified as operating leases, the Company recognizes a portion of the revenue and the associated cost of sale and defers the portion of revenue and cost of sale that represents the gross profit that is equal to the present value of the future minimum lease payments over the master leaseback term. For both capital and operating leasebacks, the Company records the deferred gross profit in its consolidated balance sheet as deferred income and amortizes the deferred income over the leaseback term as a reduction to the leaseback rental expense included in operating leases.

Warranty Costs

The Company generally warrants its products sold to its direct customers for one year following the date of acceptance of the products. Customers then have the option to purchase operations and maintenance services agreements for future one-year periods. The warranty covers defects in materials and workmanship under normal use and service conditions, and against manufacturing or performance defects. The Company’s potential liabilities are generally in the form of product replacement, repair or reimbursement for higher customer electricity costs over that one-year warranty period, should the units not work for extended periods of time (also refer to Note 17, Commitments and Contingencies). Warranty expenses and reserves are based on the Company’s best estimate of such costs during the period and are recognized as a cost of revenue. To estimate the warranty costs, the Company continuously monitors product returns for warranty failures and maintains the reserve for the related warranty expense based on various factors including historical warranty claims, field monitoring, and results of lab testing. Given the Company’s limited operating experience, particularly for newer product designs, actual results could vary from initial estimates. The warranty liability was $5.3 million and $8.7 million as of December 31, 2014 and 2015, respectively, and is classified within accrued warranty in the consolidated balance sheets.

Shipping and Handling Costs

The Company records costs related to shipping and handling in cost of revenue.

Sales and Utility Taxes

The Company recognizes revenue on a net basis for taxes charged to its customers and collected on behalf of the taxing authorities.

Advertising and Promotion Costs

Expenses related to advertising and promotion of products is charged to sales and marketing expense as incurred. The Company did not incur any significant advertising or promotion expenses during the years ended December 31, 2014 and 2015.

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Research and Development

The Company conducts internally funded research and development activities to improve anticipated product performance and reduce product life-cycle costs. Research and development costs are expensed as incurred and include salaries and expenses related to employees conducting research and development.

Stock-Based Compensation

The Company accounts for stock options and restricted stock units (RSUs) awarded to employees and nonemployee directors under the provisions of Financial Accounting Standards Board Accounting Standards Codification Topic 718, “Compensation-Stock Compensation,” (ASC 718) using the Black-Scholes valuation model to estimate fair value. The Black-Scholes valuation model requires the Company to make estimates and assumptions regarding the underlying stock’s fair value, the expected life of the option and RSU, the risk-free interest rate, the expected volatility of its common stock price and the expected dividend yield. In developing estimates used to calculate assumptions, the Company establishes the expected term for employee options and RSUs, as well as expected forfeiture rates, based on the historical settlement experience and after giving consideration to vesting schedules. Forfeitures are estimated at the time of grant and revised, if necessary, in subsequent periods if actual forfeitures differ from initial estimates. Stock-based compensation expense is recorded net of estimated forfeitures such that expense is recorded only for those stock-based awards that are expected to vest. Previously recognized expense is reversed for the portion of awards forfeited prior to vesting as and when forfeitures occurred. The Company typically records stock-based compensation expense under the straight-line attribution method over the vesting term, which is generally five years, and records stock-based compensation expense for performance based awards using the graded-vesting method. Stock-based compensation expense is recorded in the consolidated statements of operations based on the employees’ respective function.

Stock-based compensation cost for RSUs is measured based on the fair value of the underlying shares on the date of grant. RSUs are subject to a time-based vesting condition and a performance-based vesting condition, both of which must be satisfied before the RSUs are vested and settled for shares of common stock. The performance-based condition is tied to a liquidity event, such as a sale event or the completion of the Company’s initial public offering. The time-based condition ranges between six months to one year from the end of the lock-up period after a liquidity event. No expense related to these awards will be recognized unless the performance condition is satisfied.

Compensation expense for equity instruments granted to non-employees is measured on the date of performance at the fair value of the consideration received or the fair value of the equity instruments issued, whichever is more reliably measured. Compensation expense for equity instruments granted to non-employees is periodically remeasured as the underlying instruments vest. The fair value of the equity instruments is charged to earnings over the term of the service agreement.

The Company records deferred tax assets for awards that result in deductions on the Company’s income tax returns, unless the Company cannot realize the deduction (i.e., the Company is in a net operating loss (NOL) position), based on the amount of compensation cost recognized and the Company’s statutory tax rate. Differences between the deferred tax assets recognized for financial reporting purposes and the actual tax deduction reported on the Company’s income tax return are recorded in additional paid-in capital if the tax deduction exceeds the deferred tax asset (excess tax benefit) or in the consolidated statements of operations if the deferred tax asset exceeds the tax deduction and no additional excess tax benefit exists from previous awards. No tax benefit or expense for stock-based compensation has been recorded during the years ended December 31, 2014 and 2015, since the Company remains in an NOL position.

Refer to Note 24, Stock Option Plan, for further discussion of the Company’s stock-based compensation arrangements.

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Freestanding Convertible Preferred Stock Warrants

The Company accounts for freestanding warrants to purchase shares of its convertible preferred stock as liabilities on the consolidated balance sheets at fair value upon issuance. The convertible preferred stock warrants are recorded as a liability because the underlying shares of convertible preferred stock are contingently redeemable which, therefore, may obligate the Company to transfer assets at some point in the future. The warrants are subject to remeasurement to fair value at each balance sheet date or immediately before exercise of the warrants and any change in fair value is recognized in the consolidated statements of operations. The Company’s convertible preferred stock warrants will continue to be remeasured until the earlier of the exercise or expiration of warrants, the completion of a deemed liquidation event, the conversion of convertible preferred stock into common stock, or until the convertible preferred stock can no longer trigger a deemed liquidation event. At that time, the convertible preferred stock warrant liability will be reclassified to convertible preferred stock or additional paid-in capital, as applicable. These warrants were valued on the date of issuance, using the Probability-Weighted Expected Return Model (PWERM). In accordance with ASC 480 “Distinguish Liability from Equity” (ASC 480), these warrants are classified within warrant liability in the consolidated balance sheets.

Allocation of Profits and Losses of Consolidated Partnerships to Noncontrolling Interests

The Company allocates profits and losses to noncontrolling interests under the hypothetical liquidation at book value (HLBV) method. HLBV is a balance sheet-oriented approach for applying the equity method of accounting when there is a complex structure, such as a flip structure. The determination of equity in earnings under the HLBV method requires management to determine how proceeds upon a hypothetical liquidation of the entity at book value would be allocated between its investors. However, the redeemable noncontrolling interests balance is at least equal to the redemption amount. The noncontrolling interests balance is presented as a component of permanent equity in the consolidated balance sheets. The redeemable noncontrolling interests are in the temporary equity section in the mezzanine section of the consolidated balance sheets as redeemable noncontrolling interests when the third parties have the right to redeem their interests in the funds for cash or other assets.

For income tax purposes, the tax equity partner, who has committed to invest in the consolidated partnerships, will receive a greater proportion of the share of losses and other income tax benefits. This includes the allocation of investment tax credits, which will be distributed to the tax equity partner and to a wholly-owned subsidiary of the Company based on the allocation specified in each respective partnership agreement until the tax equity partner’s targeted rate of return under the partnership agreement is met. In some cases, after the PPA tax equity investors receive their contractual rate of return, we receive substantially all of the remaining value attributable to the long-term recurring customer payments and the other incentives.

Income Taxes

The Company accounts for income taxes using the liability method under Financial Accounting Standards Board Accounting Standards Codification Topic 740, “Income Taxes,” (ASC 740). Under this method, deferred tax assets and liabilities are determined based on net operating loss carryforwards, research and development credit carryforwards, and temporary differences resulting from the different treatment of items for tax and financial reporting purposes. Deferred items are measured using the enacted tax rates and laws that are expected to be in effect when the differences reverse. Additionally, the Company must assess the likelihood that deferred tax assets will be recovered as deductions from future taxable income. The Company has provided a full valuation allowance on its deferred tax assets because it believes it is more likely than not that its deferred tax assets will not be realized.

The Company follows the accounting guidance in ASC 740-10, which requires a more-likely-than-not threshold for financial statement recognition and measurement of tax positions taken or expected to be taken

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in a tax return. The Company records a liability for the difference between the benefit recognized and measured pursuant to ASC 740-10 and the tax position taken or expected to be taken on the Company’s tax return. To the extent that the assessment of such tax positions change, the change in estimate is recorded in the period in which the determination is made. The Company establishes reserves for tax-related uncertainties based on estimates of whether, and the extent to which, additional taxes will be due. These reserves are established when the Company believes that certain positions might be challenged despite the Company’s belief that the tax return positions are fully supportable. The reserves are adjusted in light of changing facts and circumstances, such as the outcome of a tax audit. The provision for income taxes includes the impact of reserve provisions and changes to reserves that are considered appropriate. The Company recognizes interest accrued related to unrecognized tax benefits in other expense, net and penalties in operating expenses.

Comprehensive Loss

The Company’s comprehensive loss is comprised of the Company’s net loss and unrealized gains (losses) on the remeasurement of the effective portion of the Company’s interest rate swap agreements to fair value.

Recent Accounting Pronouncements

In August 2014, the FASB issued ASU 2014-15, Presentation of Financial Statements—Going Concern (Subtopic 205-40). The amendments in this update provide guidance in accounting principles generally accepted in the United States of America about management’s responsibility to evaluate whether there is substantial doubt about an entity’s ability to continue as a going concern and to provide related footnote disclosures. The amendments in this update are effective for the annual period ending after December 15, 2016, and for annual periods and interim periods thereafter. Early application is permitted. This update is not expected to have a significant impact on the Company’s financial statements.

In August 2014, the FASB issued ASU 2014-13, which provides new guidance ASC 810 – Consolidation—Measuring the Financial Assets and the Financial Liabilities of a Consolidated Collateralized Financial Entity. The update requires a reporting entity that consolidates a collateralized financing entity and measures the financial assets and the financial liabilities using the measurement alternative shall disclose the fair value measurement on financial instruments for the financial assets and the financial liabilities of the consolidated collateralized financing entity. The amendments in this update are effective for public business entities for annual periods, and interim periods within those annual periods, beginning after December 15, 2015. The adoption of this standard is not expected to impact the Company’s consolidated financial statements.

In June 2014, the FASB issued ASU 2014-12, which provides new guidance on accounting for share-based payments when the terms of an award provide that a performance target could be achieved after the requisite service period. The update requires a reporting entity to treat a performance target that affects vesting and that could be achieved after the requisite service period as a performance condition under Accounting Standards Codification Topic 718 Compensation — Stock Compensation, and to apply existing guidance as it relates to awards with performance conditions that affect vesting to account for such awards. The update is effective for the interim and annual periods beginning after December 15, 2015. The adoption of this standard update is not expected to impact the Company’s consolidated financial statements.

In May 2014, the FASB issued ASU No. 2014-09, Revenue from Contracts with Customers, to replace the existing revenue recognition criteria for contracts with customers and to establish the disclosure requirements for revenue from contracts with customers. In August 2015, the FASB issued ASU No. 2015-14, Revenue from Contracts with Customers–Deferral of the Effective Date, to defer the effective date of ASU No. 2014-09 to interim and annual periods beginning after December 15, 2017, with early adoption permitted. Adoption of the ASUs are either retrospective to each prior period presented or

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retrospective with a cumulative adjustment to retained earnings or accumulated deficit as of the adoption date. The Company is currently assessing the impact of the ASUs on its consolidated financial statements.

In March 2014, the FASB issued ASU 2014-07, which provides new guidance under Accounting Standard Codification Topic 810—Consolidation. The update provides for an accounting alternative to apply variable interest entities guidance to common control leasing arrangements. The Company adopted this standard during 2015 and it did not have a material impact on the Company’s consolidated financial statements.

In April 2015, the FASB issued ASU 2015-03, simplifying the presentation of debt issuance costs, to require debt issuance costs to be presented as an offset against debt outstanding as opposed to an asset. The ASU is effective for interim and annual periods beginning after December 15, 2015, with early adoption permitted. Adoption of the ASU is retrospective to each prior period presented. As of December 31, 2015, the Company adopted the ASU. As a result, for each prior period presented, the Company reclassified the debt issuance costs previously recorded within prepaid expenses and other current assets and other long-term assets to current and long-term portion of debt.

In July 2015, the FASB issued ASU No. 2015-11, Simplifying the Measurement of Inventory, to specify that inventory should be subsequently measured at the lower of cost or net realizable value, which is the ordinary selling price less any completion, transportation and disposal costs. However, the ASU does not apply to inventory measured using the last-in-first-out or retail methods. The ASU is effective for interim and annual periods beginning after December 15, 2016. Adoption of the ASU is prospective. The Company does not anticipate that the adoption of the ASU will have a material impact on its consolidated financial statements.

In November 2015, the FASB issued ASU 2015-17, amending the accounting for income taxes and requiring all deferred tax assets and liabilities to be classified as non-current on the consolidated balance sheet. The ASU is effective for reporting periods beginning after December 15, 2016, with early adoption permitted. The ASU may be adopted either prospectively or retrospectively. The Company adopted this standard during 2015 and it did not have a material impact on the Company’s consolidated financial statements.

In February 2016, the FASB issued ASU 2016-02, which will replace most existing lease accounting guidance in U.S. GAAP. The core principle of the ASU is that an entity should recognize the rights and obligations resulting from leases as assets and liabilities. ASU 2016-02 requires qualitative and specific quantitative disclosures to supplement the amounts recorded in the financial statements so that users can understand more about the nature of an entity’s leasing activities, including significant judgments and changes in judgments. ASU 2016-02 will be effective for the Company beginning in fiscal 2019, and requires the modified retrospective method of adoption. Early adoption is permitted. The Company is in the process of determining the method and timing of adoption and assessing the impact of ASU 2016-02 on its consolidated financial statements.

3. Cash, Cash Equivalents, and Restricted Cash

The Company classifies its marketable securities as available-for-sale. Accordingly, it records them at fair value and accounts for net unrealized gains and losses as part of other comprehensive loss until realized. The Company records realized gains and losses on the sale of its marketable securities in other expense, net in the consolidated statements of operations. The cost of securities sold is based on the specific identification method.

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As of December 31, 2014 and 2015, the Company had restricted cash of $151.0 million and $91.3 million, respectively (in thousands):

	December 31,
	2014		2015
Restricted cash related to PPA entities	$	90,131	$	31,956
Restricted cash		8,141		11,777
Restricted cash, current		98,272		43,733
Restricted cash related to PPA entities		35,651		31,923
Restricted cash		17,031		15,651
Restricted cash, non-current		52,682		47,574
Total restricted cash	$	150,954	$	91,307

The following table summarizes the Company’s cash and cash equivalents and restricted cash at December 31 (in thousands):

	December 31,
	2014				2015
	Amortized Cost		Estimated Fair Value		Amortized Cost		Estimated Fair Value
Cash	$	188,511	$	188,511	$	189,989	$	189,989
Money market funds		69,471		69,471		36,348		36,348
	$	257,982	$	257,982	$	226,337	$	226,337
As reported
Cash and cash equivalents	$	107,028	$	107,028	$	135,030	$	135,030
Restricted cash		150,954		150,954		91,307		91,307
	$	257,982	$	257,982	$	226,337	$	226,337

4. Accounts Receivable

At December 31, 2014 and 2015, the Company did not maintain any allowances for doubtful accounts as it deemed all of its receivables fully collectible.

5. Inventories

The components of inventory consisted of the following at December 31 (in thousands):

	December 31,
	2014		2015
Raw materials	$	48,221	$	42,322
Work-in-progress		29,572		19,096
Finished goods		39,115		21,528
	$	116,908	$	82,946

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6. Prepaid Expense and Other Current Assets

Prepaid expenses and other current assets consisted of the following at December 31 (in thousands):

	December 31,
	2014		2015
Government incentives receivable	$	1,549	$	3,032
Prepaid expenses and other current assets		11,338		13,147
	$	12,887	$	16,179

7. Property, Plant and Equipment, Net

Property, plant and equipment, net consisted of the following at December 31 (in thousands):

	December 31,
	2014			2015
Energy Servers	$	166,888		$	288,550
Computers, software and hardware		17,372			16,441
Machinery and equipment		92,808			96,308
Furniture and fixtures		5,107			5,019
Leasehold improvements		24,091			24,369
Building		40,512			40,512
Construction in progress		9,921			13,586
		356,699			484,785
Less: Accumulated depreciation		(100,372	)		(130,245	)
	$	256,327		$	354,540

The Company’s property, plant and equipment under operating leases by its PPA entities was $49.2 million and $174.5 million for the years ended December 31, 2014 and 2015, respectively. The accumulated depreciation for these assets was $1.2 million and $8.5 million as of December 31, 2014 and 2015. Depreciation expense related to property, plant and equipment was $30.1 million and $35.6 million during the years ended December 31, 2014 and 2015, respectively.

8. Other Long-Term Assets

Other long-term assets consisted of the following at December 31 (in thousands):

	December 31,
	2014		2015
Prepaid and other long-term assets	$	21,995	$	31,848
Strategic investments		12,241		6,776
Long-term deposits		1,004		1,031
	$	35,240	$	39,655

9. Accrued Warranty

The Company typically provides its direct sales customers with a standard one-year warranty and these customers have the option to purchase operations and maintenance services agreements for future one-year periods. The Company’s warranty accrual represents its best estimate of the amount necessary to settle future and existing claims during the warranty period as of the balance sheet date. The Company accrues for warranty costs based on estimated costs that may be incurred under its standard obligations including

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material costs, labor costs, and higher customer electricity costs, should the units not work for extended periods. The estimated accrued warranty expense is included in product cost of revenue and is recorded at the time revenue is recognized. Factors that affect the warranty liabilities include the number of installed units, estimated material costs and estimated labor costs. The Company periodically assesses the adequacy of its warranty accrual and adjusts the amount as considered necessary. The Company will incur additional losses on the existing contracts if it is not able to reduce its costs and increase the useful life of its stacks.

Accrued warranty liabilities consisted of the following at December 31 (in thousands):

	December 31,
	2014		2015
Product warranty	$	5,337	$	8,707
Operations and maintenance services agreements		26,871		18,136
	$	32,208	$	26,843

Changes in the standard product warranty liability were as follows (in thousands):

Balances at December 31, 2013	$	6,752
Accrued warranty, net		8,149
Warranty expenditures during period		(9,564	)
Balances at December 31, 2014	$	5,337
Accrued warranty, net		6,679
Warranty expenditures during period		(3,309	)
Balances at December 31, 2015	$	8,707

10. Accrued Other Current Liabilities

Accrued other current liabilities consisted of the following at December 31 (in thousands):

	December 31,
	2014		2015
Compensation and benefits	$	6,068	$	7,782
Current portion of natural gas fixed price forward contracts		3,888		4,534
PPA I decommissioning		—		9,954
Other		22,801		29,706
	$	32,757	$	51,976

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11. Other Long-Term Liabilities

Accrued other long-term liabilities consisted of the following at December 31 (in thousands):

	December 31,
	2014		2015
Deferred product revenue	$	30,552	$	42,240
Deferred maintenance revenue		30,886		38,035
Delaware grant		12,000		12,000
Non-current portion of natural gas fixed price forward contracts		14,192		17,191
Interest rate swap		879		6,184
Other		8,367		13,584
	$	96,876	$	129,234

In March 2012, the Company entered into an agreement with the Delaware Economic Development Authority to provide a grant of $16.5 million to the Company as an incentive to establish a new manufacturing facility in Delaware and to provide employment for full time workers at the facility over a certain period of time. The Company has so far received $12.0 million of the grant which is contingent upon the Company meeting certain milestones related to the construction of the manufacturing facility and the employment of full time workers at the facility through September 30, 2023. In the event that the Company does not meet the milestones, the Company may have to repay the Delaware Economic Development Authority based on recapture provisions defined in the grant agreement.

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12. Fair Value Measurement

The table below sets forth, by level, the Company’s financial assets that were accounted for at fair value for the respective periods. The table does not include assets and liabilities that are measured at historical cost or any basis other than fair value (in thousands):

	Fair Value Measured at Reporting Date Using
December 31, 2015	Level 1		Level 2		Level 3		Total
Assets
Cash equivalents
Money market funds	$	36,348	$	—	$	—	$	36,348
Bank loan swap agreement		—		10		—		10
	$	36,348	$	10	$	—	$	36,358
Liabilities
Derivatives
Natural gas fixed price forward contracts	$	—	$	—	$	21,725	$	21,725
Embedded derivative on 5% Notes		—		—		64,675		64,675
Bank loan swap agreement		—		6,658		—		6,658
Stock warrants
Preferred stock warrants		—		—		17,027		17,027
	$	—	$	6,658	$	103,427	$	110,085
	Fair Value Measured at Reporting Date Using
December 31, 2014	Level 1		Level 2		Level 3		Total
Assets
Cash equivalents
Money market funds	$	69,471	$	—	$	—	$	69,471
Bank loan swap agreement		—		40		—		40
	$	69,471	$	40	$	—	$	69,511
Liabilities
Derivatives
Natural gas fixed price forward contracts	$	—	$	—	$	18,080	$	18,080
Bank loan swap agreement		—		1,442		—		1,442
Stock warrants
Preferred stock warrants		—		—		19,626		19,626
	$	—	$	1,442	$	37,706	$	39,148

The carrying values of accounts receivable, prepaid expenses, accounts payable and other current liabilities on the consolidated balance sheets approximate their fair market value due to the relatively short period of time to maturity; therefore, the Company excluded those balances from the table above. Customer financing receivables include discounted future cash flows which represents fair market value (Level 3). The changes in fair value of the Level 3 financial assets are recorded within the consolidated statement of operations.

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Changes in the Level 3 financial assets during 2015 were as follows (in thousands):

	Natural Gas Fixed Price Forward Contracts			Preferred Stock Warrants			Derivative Liability		Total
Balances at December 31, 2013	$	16,977		$	5,899		$	—	$	22,876
Settlement of natural gas fixed price forward contracts		(2,024	)		—			—		(2,024	)
Issuances of preferred stock warrants		—			11,934			—		11,934
Changes in fair value		3,127			1,793			—		4,920
Balances at December 31, 2014	$	18,080		$	19,626		$	—	$	37,706
Settlement of natural gas fixed price forward contracts		(4,165	)		—			—		(4,165	)
Embedded derivative on notes		—			—			64,675		64,675
Changes in fair value		7,810			(2,599	)		—		5,211
Balances at December 31, 2015	$	21,725		$	17,027		$	64,675	$	103,427

The carrying values of the line of credit, revolving line of credit and equipment lines of credit approximated their fair values due to the fact that they were short-term in nature at December 31, 2014 and 2015 (Level 1). Further, the Company determined the carrying value of its 8% convertible notes approximated their fair value at December 31, 2014 due to active trading prices at December 31, 2014 (Level 1). The Company has estimated the fair values of its 5.22% senior secured notes, its term loan due September 2028, its term loan due October 2020, its 6.07% senior secured notes, its term loan due December 2021, its term loan due January 2020, its term equipment loan due November 2016, and the estimated fair value of 8% convertible promissory notes based on rates currently being offered for debt with similar maturities and terms (Level 3).

The following table presents these debt instruments’ estimated fair values and their carrying values (in thousands):

	December 31, 2014				December 31, 2015
	Carrying Value		Fair Value		Carrying Value		Fair Value
Customer financing receivables	$	132,927	$	112,094	$	92,847	$	71,652
5.22% senior secured notes		133,269		129,500		119,079		115,000
Term loan due September 2028		44,804		34,500		43,805		33,500
Term loan due October 2020		23,235		22,250		27,678		26,750
6.07% senior secured notes		99,000		91,500		98,878		90,500
Term loan due December 2021		—		—		57,748		49,125
Line of credit		2,505		2,505		1,122		1,122
Term loan due January 2020		9,902		9,950		8,237		8,255
Term equipment loan due November 2016		3,345		3,345		1,674		1,664
8% convertible promissory notes		132,942		132,942		208,599		182,558
5% convertible promissory notes		—		—		95,325		95,325
Revolving line of credit		32,081		32,081		—		—
Equipment line of credit, due December 2015		1,677		1,677		—		—
Equipment line of credit, due March 2015		1,230		1,230		—		—
Equipment line of credit, due June 2015		252		252		—		—

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5% Convertible Promissory Notes

In addition, on December 15, 2015, the Company issued $160.0 million of 5% Convertible Senior Secured Paid In Kind (“PIK”) Notes that mature in December 2020. The 5% Notes are convertible at the option of the holders at a conversion price per share equal to the lower of $30.91 and 90% of the offering price of the Company’s common stock sold in an initial public offering. The conversion feature was classified within Level 3 because it was valued using the binomial lattice method, which utilizes significant inputs that are unobservable in the market.

Fair value was determined by estimated event dates from June 30, 2016 to June 30, 2017, estimated probabilities of likely events at assumed event dates ranging from 5% to 60%, estimated maturity dates on June 30, 2017 or June 30, 2020, estimated volatility ranging from 50% to 60%, estimated common stock prices at estimated event dates ranging from $17 to $21, and risk free discount rates ranging from 0.86% to 1.75%.

Significant changes in any of those inputs in isolation can result in a significant change in the fair value measurement. Generally, an increase in the market price of the Company’s shares of common stock, an increase in the volatility of the Company’s shares of common stock, and an increase in the remaining term of the conversion feature would each result in a directionally similar change in the estimated fair value of the Company’s derivative liability. Such changes would increase the associated liability while decreases in these assumptions would decrease the associated liability. An increase in the risk-free interest rate or a decrease in the market price of the Company’s shares of common stock would result in a decrease in the estimated fair value measurement and thus a decrease in the associated liability.

Refer to Note 22, Preferred Stock Warrants, for further discussion regarding the Company’s valuation method used to determine the fair value of preferred stock warrants issued to purchase the Company’s preferred stock. Refer to Note 18, Derivative Financial Instruments for further discussion regarding the Company’s valuation method used to determine the fair value of its derivative liabilities.

13. Power Purchase Agreement Programs

In mid-2010, the Company began offering its servers through its Bloom Electrons program, financed via investment entities, referred to as power purchase agreements. Under these arrangements, a special purpose entity financed by third-party financing sources purchases the Energy Server from the Company, and the end customer enters into a power purchase agreement (PPA) to purchase the power generated by the Energy Server at a specified rate per kilowatt hour for a specified term, which can range from 10 to 21 years. Similar to sales and leases, the first year warranty and guarantees are included in the price of the product. The special purpose entity also enters into a maintenance services agreement with the Company following the first year of service to extend the warranty services and guarantees. This services agreement is renewed and paid on an annual basis by the special purpose entity. The product revenue from PPAs entered into with the Company’s first PPA entity was considered a sales-type lease and the product revenue from that agreement was recognized up front in the same manner as purchase and lease transactions. The Company’s subsequent PPAs have been accounted for as operating leases and the related revenue under those agreements is recognized as electricity revenue as the electricity is produced and paid for by the customer. The Company recognizes the cost of revenue, primarily product costs, over the shorter of the estimated useful life of the Energy Server or the term of the PPA, which ranges from 10 to 21 years.

The Company and these investors contribute funds into an investment entity that owns the operating entity that acquires Energy Servers and enters into an arrangement with the Company to operate and service the Energy Servers. The operating entity then sells the electricity produced to the end customers under PPAs. Cash generated by the electricity sales, as well as from any applicable government incentive programs, is used to pay operating expenses (including the operations and maintenance services the Company provides) and to service the non-recourse debt, with the remaining cash flows distributed to the equity investors. Equity investors also receive investment tax credits and accelerated tax depreciation benefits.

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The Company has established six different investment entities to date. The first four investment entities had utilized their entire available financing capacity as of December 31, 2015. The Company expects the remaining two investment entities (PPA Company IV and PPA Company V) to complete their purchase of Energy Servers during 2016. Any debt incurred by these entities is non-recourse to the Company. Under PPA structures, the Company and its PPA tax equity investors contribute funds into a limited liability company, which is treated as a partnership for U.S. federal income tax purposes. This entity is the parent entity of a project limited liability company which acquires Energy Servers from the Company for cash payments that are made on a similar schedule as if the project limited liability company were a customer purchasing an Energy Server from the Company outright. The investors make significant upfront cash payments for the purchase of the Energy Servers that the Company records on its consolidated balance sheets within property, plant and equipment. The Company reduces these assets by amounts received by the investors from U.S. Treasury Department grants and the associated incentive rebates. The Company recognizes the incentive rebates and subsequent customer payments as electricity revenue over the customer lease term and amortizes U.S. Treasury Department grants as a reduction to depreciation of the associated Energy Servers over the term of the PPA.

The Company has determined that the PPA entities are variable interest entities (“VIEs”) and it is the primary beneficiary of these VIEs by reference to the power and benefits criterion under ASC 810, Consolidations. The Company has considered the provisions within the contractual agreements, which grant it power to manage and make decisions that affect the operations of these VIEs. The Company considers that the rights granted to the tax equity investors under the contractual agreements are more protective in nature rather than participating.

As the primary beneficiary of these VIEs, the Company consolidates in its financial statements the financial position, results of operations and cash flows of these VIEs, and all intercompany balances and transactions between the Company and these VIEs are eliminated in the consolidated financial statements.

Upon sale or liquidation of a PPA Company, distributions would occur in the order of priority specified in the contractual agreements.

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The table below shows the details of the investment entities from inception to the periods indicated (dollars in thousands):

	PPA I	PPA Company II	PPA Company IIIa	PPA Company IIIb	PPA Company IV	PPA Company V
Maximum size of installation (in megawatts)	25	30	10	6	21	40
Term of power purchase agreements (years)	10	21	15	15	15	15
First system installed	Sep-10	Jun-12	Feb-13	Aug-13	Sep-14	Jun-15
Last system installed	Mar-13	Nov-13	Jun-14	Jun-15	In progress	In progress
Income (loss) and tax benefits allocation to tax equity investor (%)	99%	99%	99%	99%	90%	99%
Cash allocation to tax equity investor (%)	80%	99%	99%	99%	90%	90%
Income (loss), tax and cash allocations to tax equity investor after the flip date (%)	22%	5%	5%	5%	No flip	No flip
Tax equity investor(1)	Credit Suisse	Credit Suisse	US Bank	US Bank	Exelon Corporation	Exelon Corporation
Put option date(2)	10th anniversary of initial funding date	10th anniversary of initial funding date	1st anniversary of flip point	1st anniversary of flip point	N/A	N/A
Activity as of December 31, 2015 (dollars in thousands):
Installed size (in megawatts)	23	30	10	5	16	4
Company cash contributions	$180,699	$22,442	$32,223	$22,658	$10,111	$32,933
Company non-cash contributions	—	—	8,834	1,883	—	—
Tax equity investor cash contributions	100,000	139,993	36,967	20,152	70,960	17,653
Distributions to tax equity investor	(81,016)	(103,864)	(1,845)	(598)	—	(5,001)
Debt financing	—	144,813	44,968	28,676	99,000	57,748
Debt repayment—principal	$  —	$(25,734)	$(1,163)	$(998)	$(122)	$  —
Activity as of December 31, 2014 (dollars in thousands):
Installed size (in megawatts)	25	30	10	4	3	—
Company cash contributions	$180,699	$22,442	$32,223	$18,504	$10,111	—
Company non-cash contributions	—	—	10,014	2,135	—	—
Tax equity investor cash contributions	100,000	139,993	36,967	16,350	15,297	—
Distributions to tax equity investor	(81,016)	(96,934)	(1,106)	(253)	—	—
Debt financing	—	144,813	44,968	23,590	99,000	—
Debt repayment—principal	$  —	$(11,543)	$(165)	$(355)	$  —	$  —

⁽¹⁾ Investor name represents ultimate parent of subsidiary financing the project.

⁽²⁾ Investor right on the certain date, upon giving the Company advance written notice, to sell the membership interests to the Company or resign or withdraw from the Company.

The flip structure exists where the equity income and allocation distributions differ from the capital percentage funded at the formation of the partnership. The change in allocations to tax equity investors occurs based on a specified future date or once the tax equity investor reaches its targeted rate of return. For PPA entities with a specified future date, the flip should occur January 1 of the calendar year immediately following the year that includes the fifth anniversary of the date the last site achieves commercial operation.

As of December 31, 2015, PPA Company V had delivered 6.05 megawatts of Energy Servers to PPA Company V leaving 33.9 megawatts remaining to deploy prior to the December 31, 2016 deployment deadline. The debt facility stipulates a minimum deployment of 35 megawatts must be achieved by the deployment deadline or any outstanding loan amounts will be immediately due and payable. The PPA Company V currently estimates it will achieve the minimum deployment requirements.

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PPA Entities’ Aggregate Assets and Liabilities

Generally, PPA assets can be used to settle only the PPA obligations and PPA creditors do not have recourse to Bloom. The aggregate carrying values of the PPA’s assets and liabilities, after eliminations of intercompany transactions and balances, in the consolidated balance sheets were as follows:

	As of December 31,
	2014		2015
Assets
Current Assets
Cash and cash equivalents	$	8,819	$	8,976
Restricted cash		90,131		31,956
Accounts receivable		5,468		6,382
Inventories		1,241		93
Customer financing receivable		8,531		5,906
Prepaid expenses and other current assets		4,368		7,497
Total current assets		118,558		60,810
Property and equipment, net		156,597		270,889
Customer financing receivable, non-current		124,397		86,941
Restricted cash		35,651		31,923
Other long-term assets		5,559		6,505
Total assets	$	440,762	$	457,068
Liabilities
Current liabilities
Accounts payable	$	1,513	$	1,229
Accrued other current liabilities		6,999		16,944
Deferred revenue and customer deposits		—		313
Current portion of debt		13,900		29,624
Total current liabilities		22,412		48,110
Long-term portion of debt		271,044		300,779
Other long-term liabilities		16,405		32,331
Total liabilities	$	309,861	$	381,220

14. PPA I Decommissioning

During 2015, the Company recorded a reduction in product revenue totaling $41.8 million for the decommissioning of its PPA I Energy Servers.

The Company’s PPA I sales arrangements qualified as sales-type leases and therefore, product revenue was recognized upfront at acceptance and a customer financing receivable was recorded on the balance sheet. The product revenue related to these arrangements was recognized in 2010 through 2012. To date, the Company has incurred significant costs to service and maintain these first and second generation Energy Servers deployed in these arrangements that are still in service. The Company’s new generation Energy Servers being deployed have longer lives with lower service and maintenance costs than the earlier generation Energy Servers. In an effort to minimize the financial effect of these service costs in future periods from these legacy systems, in December 2015, the Company agreed to a PPA I fleet decommissioning program with its tax equity investor whereby it would seek to renegotiate its existing PPA arrangements and purchase the tax equity investor’s interest in PPA I. In the quarter ending March 31, 2016, the Company issued an additional $25.0 million of the Company’s 5% Notes for the purchase of such tax equity investor’s interest. Since the decommissioning impacts existing customers, the Company has and will

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continue to convert these existing customers from a PPA I sales arrangement to either a new Bloom Electrons agreement or another lease arrangement and will install a newer generation Energy Server. As the original sale was recognized as product revenue upfront under the assumption that the lease payments were non-cancellable, the Company recorded the related decommissioning charge as a reduction in product revenue on the consolidated statement of operations and a related asset impairment charge of $31.8 million related to the customer financing receivable.

Additionally, for PPA I, the Company’s policy is that cash grants received under the American Recovery and Reinvestment Act of 2009 (ARRA) are treated as revenue when received. Charges for estimated future cash expenditures were recorded in December 2015 for the estimated loss of $10.0 million related to estimated reimbursements of such cash grants received due to certain recapture provisions under the grant program. The decommissioning program is expected to be completed by the fourth quarter of 2016.

15. Customer Financing Leases, Receivable

Net Investment in Sales-Type Financing Leases

The components of investment in sales-type financing leases at December 31 consisted of the following (in thousands):

	Years Ended December 31,
	2014			2015
Total minimum lease payments to be received	$	214,455		$	147,195
Less: Amounts representing estimated executing costs		(71,695	)		(48,913	)
Net present value of minimum lease payments to be received		142,760			98,282
Estimated residual value of leased assets		3,470			1,250
Less: Unearned income		(13,303	)		(6,685	)
Net investment in sales-type financing leases		132,927			92,847
Less: Current portion		(8,531	)		(5,906	)
Non-current portion of investment in sales-type financing leases	$	124,396		$	86,941

The future scheduled customer payments from sales-type financing leases were as follows (in thousands):

	December 31,
	2016		2017		2018		2019		2020		Beyond 2020
Future minimum lease payments, less interest	$	5,906	$	5,549	$	5,944	$	6,361	$	6,826	$	61,011

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16. Income Taxes

The following table presents domestic and foreign components of income (loss) before income taxes for the periods presented (in thousands):

	Years Ended December 31,
	2014			2015
United States	$	(263,246	)	$	(346,488	)
Foreign		1,835			1,514
Total	$	(261,411	)	$	(344,974	)

The income tax expense is composed of the following (in thousands):

	Years Ended December 31,
	2014			2015
Current
Federal	$	—		$	—
State		36			41
Foreign		743			719
Total current	$	779		$	759
Deferred
Federal	$	—		$	—
State		—			—
Foreign		(205	)		(53	)
Total deferred		(205	)		(53	)
Total income tax expense	$	574		$	707

The reconciliation of the Company’s effective tax rate to the statutory federal rate is as follows (in thousands):

	Years Ended December 31,
	2014			2015
Tax at federal statutory rate	$	(88,880	)	$	(117,291	)
State taxes, net of federal effect		36			41
Non-US tax effect		(86	)		152
Nondeductible expenses		3,316			3,807
Stock-based compensation		2,267			2,892
Change in valuation allowance		83,921			111,106
Effective tax rate	$	574		$	707

For the year ended December 31, 2015, the Company recorded an expense for income taxes of $0.7 million on a pre-tax loss of $345.0 million, for an effective tax rate of (0.2)%. For the year ended December 31, 2014, the Company recorded an expense for income taxes of $0.6 million on a pre-tax loss of $261.4 million, for an effective tax rate of (0.2)%. The effective tax rate for both 2014 and 2015 is lower than the statutory federal tax rate primarily due to a full valuation allowance against U.S. deferred tax assets.

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Significant components of the Company’s deferred tax assets consist of the following (in thousands):

	December 31,
	2014			2015
Tax credits and NOLs	$	457,907		$	554,683
Depreciation and amortization		3,809			4,683
Deferred revenue		4,005			8,567
Accruals and reserves		23,478			27,379
Stock-based compensation		11,128			14,644
Derivative liability		—			24,885
Other items		9,443			9,406
Gross deferred tax assets		509,770			644,246
Valuation allowance		(490,970	)		(596,007	)
Net deferred tax assets		18,800			48,239
Investment in PPA entities		(18,093	)		(22,760	)
Debt issuance cost		—			(24,711	)
Gross deferred tax liabilities		(18,093	)		(47,471	)
Net deferred tax asset	$	707		$	769

Income taxes are recorded using the asset and liability method. Deferred tax assets and liabilities are recognized for the future tax consequences attributable to differences between the financial statement carrying amounts of existing assets and liabilities and their respective tax bases and operating loss and tax credit carryforwards. Deferred tax assets and liabilities are measured using enacted tax rates expected to apply to taxable income (or loss) in the years in which those temporary differences are expected to be recovered or settled. The effect on deferred tax assets and liabilities of a change in tax rates is recognized in income in the period that includes the enactment date. A valuation allowance is provided for the amount of deferred tax assets that, based on available evidence, is not more-likely-than-not to be realized. Management believes that, based on available evidences, both positive and negative, it is more likely than not that the U.S. deferred tax assets will not be utilized, such that a full valuation allowance has been recorded.

The valuation allowance for deferred tax assets was $491.0 million and $596.0 million as of December 31, 2014 and 2015, respectively. The net change in the total valuation allowance for the years ended December 31, 2014 and December 31, 2015 was an increase of $70.6 million and $105.0 million, respectively. There were no releases from the valuation allowance in either period.

At December 31, 2015, the Company had federal and state net operating loss carryforwards of $1.4 billion and $1.1 billion, respectively, which will expire, if unused, beginning in 2022 and 2016, respectively. At December 31, 2015, the Company has federal and state net operating loss carryforwards of $11.4 million and $11.3 million, respectively, associated with windfall tax benefits that will be recorded as additional paid-in capital if realized. In addition, the Company had approximately $13.9 million of federal research credit, $4.8 million of federal investment tax credit, and $12.2 million of state research credit carryforwards. The federal tax credit carryforwards begin to expire in 2022. The state credit carryforwards may be carried forward indefinitely. The Company has not reflected deferred tax assets for the federal and state research credit carryforwards as the entire amount of the carryforwards represent unrecognized tax benefits.

The Tax Reform Act of 1986 limits the use of net operating loss and tax credit carryforwards in certain situations in which changes occur in the capital stock ownership of the Company. Any annual limitation may result in the expiration of net operating losses and credits before utilization. If the Company should have an ownership change, as defined by the tax law, utilization of the net operating loss and carryforwards could be significantly reduced.

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The Tax Increase Prevention Act of 2014, enacted December 19, 2014, reinstated the research and development credit for 2014. The Consolidated Appropriations Act, 2016, enacted December 18, 2015, reinstated the research and development credit retroactively for 2015 and has made the credit permanent going forward.

The Company has not provided for U.S. federal income and foreign withholding taxes on non-U.S. subsidiaries’ undistributed earnings as of December 31, 2015, because such earnings are intended to be indefinitely reinvested in the operations related to the Company’s international operations. Upon distribution of those earnings in the form of dividends or otherwise, the Company would be subject to U.S. income taxes, subject to an adjustment for foreign tax credits. Undistributed earnings are immaterial to date.

During the year ended December 31, 2015, the amount of uncertain tax positions increased by $0.7 million. The Company has not recorded any uncertain tax liabilities associated with its tax positions.

A reconciliation of the beginning and ending amounts of unrecognized tax benefits were as follows (in thousands):

	December 31,
	2014		2015
Unrecognized tax benefits beginning balance	$	24,331	$	25,496
Gross decrease for tax positions of prior year		—		—
Gross increase for tax positions of current year		1,165		669
Unrecognized tax benefits end balance	$	25,496	$	26,165

If fully recognized in the future, there would be no impact to the effective tax rate, and $22.0 million would result in adjustments to the valuation allowance. The Company does not have any tax positions that are expected to significantly increase or decrease within the next 12 months.

Interest and penalties, to the extent there are any, are included in income tax expense and there was no interest or penalties accrued during or for the years ended December 31, 2014 and 2015.

The Company is subject to taxation in the United States and various states and foreign jurisdictions. With the exception of the PPA I entity, the Company currently does not have any tax examinations in progress nor has it had any tax examinations since its inception. All of the Company’s tax years will remain open for examination by federal and state authorities for three and four years from the date of utilization of any net operating losses and tax credits. PPA I had a federal tax audit for the years ended December 31, 2010 through 2012, and as such, these years remain open for examination by state authorities only.

In November 2015, the FASB issued Accounting Standards Update 2015-17, which simplifies the presentation of deferred income taxes by requiring that deferred tax assets and liabilities be presented as non-current. The standard impacts presentation only. The Company elected to early adopt the standard on a retrospective basis effective December 31, 2015 and all deferred tax assets and liabilities are classified as non-current on the Company’s consolidated balance sheets. Adoption of this ASU resulted in a reclassification of the Company’s net current deferred tax asset to the net non-current deferred tax asset in the consolidated balance sheet as of December 31, 2014 and 2015. All prior period amounts have been reclassified to conform with current period presentation as follows:

	December 31,
	2014 (Original)			2014 (As revised)
Current deferred tax assets	$	1,714		$	—
Non-current deferred tax assets		—			707
Non-current deferred tax liabilities		(1,007	)		—
Net deferred tax assets	$	707		$	707

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17. Commitments and Contingencies

Indemnification Agreements

The Company enters into standard indemnification agreements with its customers and certain other business partners in the ordinary course of business. The Company’s exposure under these agreements is unknown because it involves future claims that may be made against the Company in the future, but have not yet been made. To date, the Company has not paid any claims or been required to defend any action related to its indemnification obligations. However, the Company may record charges in the future as a result of these indemnification obligations.

Leases

The Company leases its facilities, office buildings and equipment under operating leases that expire at various dates through December 2020. The Company’s headquarters are used for corporate administration, research and development, sales and marketing, and manufacturing and currently occupy approximately 31,000 square feet of office space in Sunnyvale, California under lease through February 2018. Rent expense for all office facilities was $6.0 million and $5.9 million during the years ended December 31, 2014 and 2015, respectively.

Beginning in December 2015, the Company is a party to master lease agreements that provide for the sale of Energy Servers to third parties and the simultaneous leaseback of the systems, which the Company then subleases to its customers. The lease agreements expire on various dates through 2025 and there was no rent expense during the year ended December 31, 2015.

At December 31, 2015, future minimum lease payments under all noncancellable operating leases were as follows (in thousands):

As of December 31, 2015
2016	$	6,085
2017		5,031
2018		4,502
2019		2,912
2020		2,987
Thereafter		8,375
	$	29,892

Purchase Commitments with Suppliers and Contract Manufacturers

In order to reduce manufacturing lead-times and ensure an adequate supply of inventories, the Company has agreements with its component suppliers and contract manufacturers to allow them to procure long lead-time component inventory based on a rolling production forecast. The Company is contractually obligated to purchase long lead-time component inventory procured by certain manufacturers in accordance with its forecasts. The Company can generally give notice of order cancellation at least 90 days prior to the delivery date. However, the Company issues purchase orders to its component suppliers and third-party manufacturers that may not be cancellable. As of December 31, 2015, the Company had no open purchase orders with its component suppliers and third-party manufacturers that are not cancellable.

Power Purchase Agreement Program

Under the terms of the Bloom Electrons program (Refer to Note 13, Power Purchase Agreement Programs), customers agree to purchase power from the Company’s Energy Servers at negotiated rates, generally for periods of up to twenty one years. The Company is responsible for all operating costs necessary to maintain, monitor and repair the Energy Servers, sometimes including fuel necessary to operate the systems.

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The PPA entities guarantee the performance of Energy Servers at certain levels of output and efficiency to its customers over the contractual term. The PPA entities monitor the need for any accruals arising from such guarantees, which are calculated as the difference between committed and actual power output or between natural gas consumption at warranted efficiency levels and actual consumption, multiplied by the contractual rates with the customer. Amounts payable under these guarantees are accrued in periods when the guarantees are not met and recorded in cost of service revenue in the consolidated statements of operations. The PPA entities did not have any such payments or liabilities during the years ended December 31, 2014 and 2015.

The related fuel supply contracts are carried at fair value. Should actual results differ from the Company’s estimates, the Company’s results of operations could be negatively impacted.

Legal Matters

From time to time, the Company is involved in disputes, claims, litigation, investigations, proceedings and/or other legal actions, consisting of commercial, securities, and employment matters that arise in the ordinary course of business. The Company reviews all legal matters at least quarterly and assesses whether an accrual for loss contingencies needs to be recorded. The assessment reflects the impact of negotiations, settlements, rulings, advice of legal counsel, and other information and events pertaining to a particular situation. The Company records an accrual for loss contingencies when management believes that it is both probable that a liability has been incurred and the amount of the loss can be reasonably estimated. Legal matters are subject to uncertainties and are inherently unpredictable, so the actual liability in any such matters may be materially different from the Company’s estimates. If an unfavorable resolution were to occur, there exists the possibility of a material adverse impact on the Company’s consolidated financial condition, results of operations or cash flows for the period in which the resolution occurs or on future periods.

During the year ended December 31, 2013, the Company recorded $16.7 million in charges related to disputes with a securities placement agent, who is also an investor and who had executed a related agency agreement in early 2009. The disputes were resolved in early 2014. The settlement was settled via the issuance of 200,000 convertible redeemable preferred Series G, 400,000 warrants to purchase convertible redeemable preferred Series G, and 50,000 warrants to purchase common shares, in addition to 200,000 common shares that will be issued six months after the effective date of an initial public offering. The related charges were recorded in general and administrative expenses within the consolidated statement of operations. As part of the settlement, in June 2014, the Company extended a $5.0 million non-recourse loan to the principals of the securities placement agent. The loan is payable to the Company over a term of five years bearing an interest rate of 1.81% per year, compounding annually, secured by the warrants discussed above.

18. Derivative Financial Instruments

On July 9, 2010, the Company entered into three derivative natural gas call option contracts to fix the price of natural gas at strike prices of $6.90, $7.22 and $5.80 per Million Metric British Thermal Units (MMBtu) against the midpoint price at certain public utility companies. The call option contracts expire beginning in 2016 and ending in 2022. MMBtu is a traditional unit of energy used to describe the heat value (energy content) of fuels. In exchange for fixing the price of natural gas, the Company paid Credit Suisse a premium of $10.0 million based on the number of MMBtu per transaction. The derivatives were set up to settle in monthly natural gas requirements and were based on the difference between the average commodity reference prices and the contracted fixed price for each location.

The natural gas call options and fixed price forward contracts are used as part of the Company’s program to manage the risk for controlling the overall cost of natural gas by the Company. These natural gas fixed price derivative contracts meet the definition of a derivative; however the Company has not elected to designate these contracts as a hedge and accordingly, any changes in their fair value go through cost of

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revenue in the consolidated statements of operations. The fair value of these contracts is determined using forward interest rates and combination of factors including spot and future natural gas prices. During the year ended December 31, 2010, the Company marked-to-market the fair value of its investments in natural gas call options and recorded a loss of $4.7 million in cost of revenue on the consolidated statement of operations.

On September 1, 2011, the Company novated all three of its natural gas call option contracts for fixed price physical delivery forward contracts for natural gas, and as part of this transaction, the Company received $10.0 million in cash for its natural gas call option contracts. The gain of $4.9 million resulting from the novation of the contracts was recorded in cost of revenue on the consolidated statement of operations.

At December 31, 2014 and 2015, the Company marked-to-market the fair value of its fixed price natural gas forward contract and recorded a loss of $1.1 million and $3.6 million, respectively, in cost of revenue on the consolidated statement of operations.

The following table provides the fair value of the Company’s natural gas fixed price contracts:

	Years Ended December 31,
	2014				2015
	Number of Contracts (MMBTU) (2)		Fair Value		Number of Contracts (MMBTU) (2)		Fair Value
Liabilities (1)
Natural gas fixed price forward contracts (not under hedging relationships)		7,906	$	18,080		6,700	$	21,725

⁽¹⁾  Recorded in other current liabilities and other long-term liabilities in the consolidated balance sheets.

⁽²⁾  One MMBTU is a traditional unit of energy used to describe the heat value (energy content) of fuels.

In September 2013, PPA Company IIIb entered into an interest rate swap arrangement to convert a variable interest rate on debt to a fixed rate. The Company designated and documented its interest rate swap arrangement as a cash flow hedge. The swap’s term ends on October 1, 2020 concurrent with the final maturity of the debt floating interest rates reset on a quarterly basis. The Company evaluates and calculates the effectiveness of the hedge at each reporting date. The effective change was recorded in accumulated other comprehensive loss and was recognized as interest expense on settlement. The notional amounts of the swap were $31.8 million and $22.8 million as of December 31, 2014 and 2015. By entering into the swap, the Company minimizes the impact of fluctuations from interest rate changes on its outstanding debt where LIBOR is applied. The Company measures the swap at fair value on a recurring basis. Fair value is determined by discounting future cash flows using LIBOR rates with appropriate adjustment for credit risk. The Company recorded a loss of $0.5 million and a gain of $0.2 million during the years ended December 31, 2014 and 2015, respectively, due to the change in swap’s fair value included in other expense, net in the consolidated statement of operations.

On December 15, 2015, the Company issued $160.0 million of 5% Convertible Senior Secured PIK Notes that mature in December 2020. The 5% Notes are convertible at the option of the holders at a conversion price per share equal to the lower of $30.91 and 90% of the offering price of the Company’s common stock sold in an initial public offering. The valuation of this embedded put feature is recorded as a derivative liability in the consolidated balance sheet. The notes were initially recorded net of a discount of $6.3 million and the fair value of the embedded derivatives within the notes was $64.7 million. Fair value was determined using the binomial lattice method. The debt discount is being amortized through interest expense on the consolidated statements of operations over an accelerated three year amortization period based on when the notes become puttable. The company measures the fair value of the derivatives at each reporting date and there was no material gain or loss recorded due to the change in valuation at December 31, 2015.

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19. Bank Loans and Security Agreements

The following is a summary of the Company’s debt as of December 31, 2015 (in thousands):

	Unpaid Principal Balance		Net Carrying Value				Unused Borrowing Capacity		Interest Rate	Maturity Dates	Entity	Recourse
			Current		Long-Term
5.22% senior secured notes	$	119,079	$	13,527	$	103,006	$	—	5.2%	March 2025	PPA II	No
Term loan		43,805		200		37,101		—	7.5%	September 2028	PPA IIIa	No
Term loan		27,678		904		24,643		—	LIBOR plus margin	October 2020	PPA IIIb	No
6.07% senior secured notes		98,878		14,993		82,297		—	6.1%	March 2030	PPA IV	No
Term loan		57,748		—		53,732		73,489	LIBOR plus margin	December 2021	PPA V	No
Letters of credit		—		—		—		6,439	LIBOR plus margin	December 2021	PPA V	No
Total non-recourse debt		347,188		29,624		300,779		79,928
Line of credit		1,122		1,122		—		—	2.7%	July 2016	Company	Yes
Term loan		8,237		1,706		6,530		—	LIBOR plus margin	January 2020	Company	Yes
Term equipment loan		1,674		1,674		—		—	LIBOR plus margin	November 2016	Company	Yes
8% convertible promissory notes		208,599		—		208,599		—	8.0%	December 2017	Company	Yes
5% convertible promissory notes		160,000		—		89,948		—	5.0%	December 2020	Company	Yes
Total recourse debt		379,632		4,502		305,077		—
Total debt	$	726,820	$	34,126	$	605,856	$	79,928

The following is a summary of the Company’s debt as of December 31, 2014 (in thousands):

	Unpaid Principal Balance		Net Carrying Value				Unused Borrowing Capacity		Interest Rate	Maturity Dates	Entity	Recourse
			Current		Long-Term
5.22% senior secured notes	$	133,269	$	13,640	$	116,311	$	—	5.2%	March 2025	PPA II	No
Term loan		44,804		226		37,184		—	7.5%	September 2028	PPA IIIa	No
Term loan		23,235		—		20,630		8,906	LIBOR plus margin	October 2020	PPA IIIb	No
6.07% senior secured notes		99,000		34		96,918		—	6.1%	March 2030	PPA IV	No
Total non-recourse debt		300,308		13,900		271,043		8,906
Line of credit		2,505		1,518		987		—	2.7%	July 2016	Company	Yes
Term loan		9,902		1,704		8,198		—	LIBOR plus margin	January 2020	Company	Yes
Term equipment loan		3,345		1,677		1,668		—	LIBOR plus margin	November 2016	Company	Yes
8% convertible promissory notes		132,942		792		132,150		—	8.0%	December 2017	Company	Yes
Revolving line of credit		32,081		32,081		—		2,919	AR 3.8%, INV 5.3%	November 2015	Company	Yes
Equipment line of credit		1,677		1,678		—		—	7.5%	December 2015	Company	Yes
Equipment line of credit		1,230		1,230		—		—	6.8%	March 2015	Company	Yes
Equipment line of credit		252		252		—		—	6.8%	June 2015	Company	Yes
Total recourse debt		183,934		40,932		143,003		2,919
Total debt	$	484,242	$	54,832	$	414,046	$	11,825

Recourse debt refers to debt that is recourse to the Company’s general assets. Non-recourse debt refers to debt that is recourse to only specified assets or subsidiaries of the Company. The differences between the unpaid principal balances and the net carrying values are due to debt discounts and deferred financing costs. The Company’s debt is described further below.

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Non-recourse Debt Facilities

5.22% Senior Secured Notes

In March 2013, PPA Company II refinanced its existing debt by issuing 5.22% Senior Secured Notes (PPA II Notes) due March 30, 2025. The total amount of the loan proceeds was $144.8 million, including $28.8 million to repay outstanding principal of existing debt, $21.7 million for debt service reserves and transaction costs, and $94.3 million to fund the remaining system purchases. The loan is a fixed rate term loan that bears an annual interest rate of 5.22% payable quarterly. The loan has a fixed amortization schedule of the principal, payable quarterly, which began March 30, 2014 that requires repayment in full by March 30, 2025. The Note Purchase Agreement requires the Company to maintain a debt service reserve, the balance of which was $11.2 million and $11.2 million as of December 31, 2014 and 2015 and was included as part of long-term restricted cash in the consolidated balance sheets. The PPA II Notes are secured by all the assets of PPA II. The Company was in compliance with all financial covenants as of December 31, 2015.

Term Loan due September 2028

In December 2012 and later amended in August 2013, PPA IIIa entered into a $46.8 million credit agreement to help fund the purchase and installation of Bloom Energy servers. The loan bears a fixed interest rate of 7.5% payable quarterly. The loan requires quarterly principal payments which began in March 2014. The credit agreement requires the Company to maintain a debt service reserve for all funded systems, the balance of which was $3.6 million and $3.6 million as of December 31, 2014 and 2015, and was included as part of long-term restricted cash in the consolidated balance sheets. The loan is secured by all assets of PPA IIIa. The Company was in compliance with all financial covenants as of December 31, 2015.

Term Loan due October 2020

In September 2013, PPA IIIb entered into a credit agreement to help fund the purchase and installation of Bloom Energy Servers. In accordance with that agreement, PPA IIIb issued floating rate debt based on LIBOR plus a margin of 5.2%, paid quarterly. The aggregate amount of the debt facility is $32.5 million. The credit agreement requires the Company to maintain a debt service reserve for all funded systems, the balance of which was $1.2 million and $1.7 million as of December 31, 2014 and 2015, and was included as part of long-term restricted cash in the consolidated balance sheets. The loan is secured by all assets of PPA IIIb and requires quarterly principal payments starting in July 2014. The Company was in compliance with all financial covenants as of December 31, 2015.

6.07% Senior Secured Notes

In July 2014, PPA IV issued senior secured notes (PPA IV Notes) amounting to $99.0 million to third parties to help fund the purchase and installation of Bloom Energy Servers. The PPA IV Notes bear a fixed interest rate of 6.07% payable quarterly. The principal amount of the PPA IV Notes is payable quarterly starting in December 2015 and ending in March 2030. In March 2015, the Note Purchase Agreement was amended to extend the date certain to March 31, 2016. As of December 31, 2015, PPA IV estimates it will only reach a system capacity of 18.95 megawatts and therefore anticipates a prepayment of the notes in the amount of $14.6 million will be required. The anticipated prepayment has been classified as part of short-term debt in the consolidated balance sheets. The Note Purchase Agreement requires the Company to maintain a debt service reserve, the balance of which was $6.9 million and $6.9 million as of December 31, 2014 and 2015, and was included as part of restricted cash in the consolidated balance sheets. The PPA IV Notes are secured by all the assets of the PPA IV. The Company was in compliance with all financial covenants as of December 31, 2015.

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Term Loan due December 2021 and Letters of Credit due December 2021

In June 2015, PPA V entered into a $131.2 million credit agreement to fund the purchase and installation of Bloom Energy Servers. The lenders are a group of five financial institutions. In addition, the lenders further have commitments to the Letter of Credit (LC) facility with the aggregate principal amount of $6.4 million. The LC facility is to fund the Debt Service Reserve Account. In accordance with that agreement, PPA V was issued a floating rate debt based on LIBOR plus a margin, paid quarterly. The applicable margins used for calculating interest expense are 2.125% for the loan time period prior to the term conversion date; 2.25% for years 1-3 following the term conversion date and 2.5% for after year 3 following the term conversion date. For Lenders’ commitments to the loan, and the commitments to the LC loan, the PPA V also pays commitment fees at 0.50% per annum over the outstanding commitments, paid quarterly. The loan is secured by all the assets of the PPA V and requires quarterly principal payments beginning in March 2017. The Company was in compliance with all financial covenants as of December 31, 2015.

In connection with the floating-rate credit agreement, in July 2015, the Company entered into pay-fixed, receive-float interest rate swap agreements to convert its floating-rate loan into a fixed-rate loan.

Production insurance policies are in place to protect lenders of PPA IIIb, PPA IV and PPA V in the event that cash flows are insufficient to meet debt service obligations due to server underperformance. Amounts paid for production insurance are recorded in prepaid and other current assets and in other long-term assets in the consolidated balance sheets and are amortized over the expected terms of the loans.

Recourse Debt Facilities

Line of Credit

On December 31, 2012, the Company entered into a $5.0 million equipment line of credit with a financial institution. At December 31, 2012, the Company utilized the entire $5 million of the equipment line of credit with terms of 42 months, payable monthly, at an annual rate equal to 2.70% which matures in July 2016. As of December 31, 2015, the debt outstanding was $1.12 million. The Company was in compliance with all covenants as of December 31, 2015.

Term Loan due January 2020

On May 22, 2013, the Company entered into a $12.0 million financing agreement with a financial institution. The loan has a term of 90 months, payable monthly at a variable rate equal to one-month LIBOR plus the applicable margin. As of December 31, 2015, the debt outstanding was $8.2 million. The Company was in compliance with all covenants as of December 31, 2015.

Term Equipment Loan due November 2016

On May 22, 2013, the Company entered into a $5.0 million equipment loan with a financial institution. During 2013, the Company utilized $5.0 million of the equipment loan with terms of 39 months, payable monthly at a variable rate equal to one-month LIBOR plus the applicable margin. As of December 31, 2015, the debt outstanding was $1.7 million. The Company was in compliance with all covenants as of December 31, 2015.

8% Convertible Promissory Notes

In December 2014, the Company entered into a three year $132.2 million convertible promissory note agreements with certain investors, including $10.0 million each from three related parties. The related parties consisted of Independent Board Members of the Company from Alberta Investment Management Corporation, KPCB Holdings, Inc. and New Enterprise Associates.

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As part of the December 2014, convertible promissory note agreements with certain investors, the Company entered into two more promissory note agreements in January and February 2015 for an additional $34.0 million and in June 2015 the Company entered into an additional promissory note agreement for $27.0 million. The total principal amount of the promissory notes issued is $132.2 million and $193.2 million as of December 31, 2014 and 2015. The loans, which bear a fixed interest rate of 8.0%, compounded monthly, are due at maturity or at the election of the investor, the accrued interest would be due in December of each year. As of December 31, 2014 and 2015, the total amount outstanding was $132.9 million and $208.6 million, including accrued interest. At the election of the investor, the accrued interest can be paid in December of each year. Investors have the right to convert the unpaid principal and accrued interest to Series G convertible preferred stock at any time at the price of $25.76. If an initial public offering occurs prior to the payment in full, the outstanding principal and accrued interest will mandatorily convert into Series G convertible preferred stock. The Company was in compliance with all covenants as of December 31, 2015.

5% Convertible Promissory Notes

In December 2015, the Company entered into two promissory note agreements with J.P. Morgan and Canadian Pension Plan Investment Board (CPPIB). The total value of the promissory notes is $160.0 million and bear a 5% fixed interest rate, compounded monthly, are entirely due at maturity. As of December 31, 2015, the debt outstanding was $160.3 million, including accrued interest. The outstanding principal and accrued interest do not mandatorily convert into common stock in the event of an initial public offering. At the election of the investors, the accrued interest and the unpaid principal can be converted into common stock at any time. In certain circumstances, the notes are also redeemable at the Company’s option, in whole or in part, in connection with a Change of Control or at a qualified IPO at a redemption price.

As of December 31, 2015, the debt outstanding related to all convertible promissory notes was $369.0 million, including principal and accrued interest. The Company was in compliance with all covenants as of December 31, 2015.

Equipment Line of Credit, Due December 2015, March 2015, and June 2015

On December 31, 2010, the Company entered into a $20.0 million equipment line of credit with a financial institution. During 2011, the Company utilized $10.0 million of the equipment line of credit with terms ranging from 30 months to 48 months, payable monthly, at an annual rate equal to 6.75% to 7.50%, respectively. During 2012, the Company utilized the remaining $10.0 million of the equipment line of credit with terms of 30 months, payable monthly, at an annual rate equal to 6.75%. The final payment of principal and interest was made on December 1, 2015 upon the maturity date. As part of the equipment line of credit, the Company paid a fee of $1.7 million as final payment of principal and interest when the loans were due. The fee was accreted as incremental interest expense over the loans’ repayment periods. At December 31, 2014, the accreted incremental interest expense associated with this fee was immaterial.

Revolving Line of Credit

On March 30, 2012, the Company entered into a $35.0 million revolving line of credit with a financial institution. The line of credit was secured by certain assets and was subject to certain guaranties by the Company. On December 15, 2015, the Company paid the remaining balance of $22.4 million, which included the principal amount of all advances, the unpaid interest thereon, and other obligations relating to the revolving line of credit.

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The following table presents detail of the outstanding loan principal repayment schedule (in thousands):

Years Ending December 31,
2016	$	36,007
2017		265,723
2018		59,583
2019		61,924
2020		64,383
Thereafter		239,200
	$	726,820

Interest expense of $20.5 million and $38.9 million for the years ended December 31, 2014 and 2015, respectively, was recorded in interest expense on the consolidated statements of operations.

20. Stockholders’ Deficit

Common Stock

The Company’s Certificate of Incorporation, as amended, authorizes the Company to issue 170,000,000 shares of $0.0001 par value common stock. Each share of common stock is entitled to one vote. The holders of common stock are also entitled to receive dividends whenever funds are legally available and when and if declared by the Board of Directors, subject to the prior rights of holders of all classes of stock outstanding. As of December 31, 2015, no dividends had been declared or paid since inception.

On November 26, 2014, the Company filed an amendment to the Company’s Restated Certificate of Incorporation to increase the number of authorized shares of common stock by 22,035,434 to a total of 161,000,000.

On December 7, 2015, the Company filed an amendment to the Company’s Restated Certificate of Incorporation to increase the number of authorized shares of common stock by 9,000,000 shares to a total of 170,000,000 shares.

21. Convertible Preferred Stock

During the year ended December 31, 2013, the Company recorded $16.7 million in charges related to disputes with a securities placement agent, who is also an investor and who had executed a related agency agreement in early 2009. The disputes were resolved in early 2014. The settlement was settled via the issuance of preferred shares and warrants to purchase preferred and common shares. The related charges were recorded in general and administrative expenses within the consolidated statement of operations.

On January 21, 2014, the Company issued 19,409 shares of Series G preferred at $25.76 per share. Proceeds from the issuance of the Series G convertible preferred stock, net of issuance costs, was $0.5 million. These Series G preferred shares have substantially similar terms and conditions as the currently outstanding preferred shares.

On June 27, 2014 the Company issued 100,000 shares of Series G convertible preferred stock as part of a dispute settlement with a securities placement agent, who is also an investor and who executed a related agency agreement in early 2009. These Series G preferred shares have substantially similar terms and conditions as the currently outstanding preferred shares.

On November 26, 2014, the Company filed an amendment to the Company’s Restated Certificate of Incorporation to increase the number of authorized shares of preferred stock by 9,609,694 shares to a total of 120,692,417 shares.

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On July 1, 2015, the Company issued 100,000 shares of Series G convertible preferred stock at $25.76 per share as part of a dispute settlement with a securities placement agent, who is also an investor and who executed a related agency agreement in early 2009. These Series G preferred shares have substantially similar terms and conditions as the currently outstanding preferred shares.

The following table summarizes the Company’s convertible preferred stock (in thousands except share data):

					Carrying
			Shares		Value at
	Shares		Issued and		December 31,		Liquidation
	Authorized		Outstanding		2015		Preference
Series A preferred		14,061,152		14,061,152	$	8,956	$	4,689
Series B preferred		11,803,284		11,803,284		11,941		11,998
Series C preferred		8,968,604		8,968,604		44,928		45,000
Series D preferred		9,665,746		9,665,746		102,648		103,907
Series E preferred		14,229,597		14,229,597		198,265		167,767
Series F preferred		21,895,873		20,760,838		373,626		384,491
Series G preferred		40,068,161		27,936,562		719,142		719,646
		120,692,417		107,425,783	$	1,459,506	$	1,437,498

The rights, preferences, privileges, and restrictions for the convertible preferred stock are as follows:

Dividends

The holders of Series A, Series B, Series C, Series D, Series E, Series F and Series G convertible preferred stock are entitled to receive annual dividends payable, prior and in preference to any declaration or payment of any dividend on the common stock at a rate of 10% of the original issuance price, as adjusted for any stock splits, stock dividends or distributions, recapitalizations, and similar events with respect to such Series of preferred, of the applicable series. Such dividends shall be payable only when and if declared by the Company’s board of directors and shall not be cumulative. After payment of such dividends to the holders of Series A, Series B, Series C, Series D, Series E, Series F and Series G convertible preferred stock, any additional dividends declared shall be distributed among all holders of preferred stock and common stock on an as-converted basis. No dividends on preferred stock or common stock have been declared by the Board of Directors through December 31, 2015.

Liquidation Preference

The holders of Series A, Series B, Series C, Series D, Series E, Series F and Series G convertible preferred stock have liquidation preferences prior and in preference to any distribution of any of the assets or surplus funds of the Company or consideration received in any liquidation to the holders of the common stock, equal to the original issue price of $0.33, $1.02, $5.02, $10.75, $11.79, $18.52 and $25.76, per share, respectively, as adjusted for any stock splits, stock dividends or distributions, recapitalizations, and similar events with respect to such series of preferred, and, in addition, an amount equal to all declared but unpaid dividends, if any, on such preferred stock. If the assets, funds or consideration thus distributed among the holders of the preferred stock shall be insufficient to permit the payment to such holders of the full liquidation preference, then the entire assets and funds of the Company legally available for distribution shall be distributed pro rata among the holders of the preferred based on the amounts that would otherwise be distributable.

Any of the following shall be treated as a liquidation of the Company: (i) any consolidation or merger of the Company with or into any other corporation or other entity or person, or any other corporate reorganization, in which the stockholders of the Company immediately prior to such combination transaction, own less than 50% of the voting power of the surviving or successor entity or its parent

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immediately after such combination transaction; (ii) any transaction or series of related transactions to which the Company is a party in which in excess of 50% of the Company’s voting power is transferred; or (iii) any sale, lease, or other disposition of all or substantially all of the assets of the Company. Notwithstanding the foregoing, no transaction or series of related transactions principally for bona fide equity financing purposes in which cash is received by the Company or indebtedness of the Company is cancelled or converted, or a combination thereof, nor the transfer by any stockholder of shares of the Company’s capital stock to any third party in a transaction or series of related transactions to which the Company is not a party, shall be deemed a liquidation of the Company.

Redemption

The Company’s Series A, Series B, Series C, Series D, Series E, Series F and Series G convertible preferred stock are considered redeemable for accounting purposes. The Company initially recorded the Series A, Series B, Series C, Series D, Series E, Series F and Series G convertible preferred stock at their fair values on the dates of issuance, net of issuance costs. A deemed liquidation event could occur as a result of the sale of all or substantially all of the assets of the Company or any acquisition of the Company by another entity by means of a merger or consolidation in which the stockholders of the Company do not hold at least 50% of the voting power of the surviving entity or its parent. Because the deemed redemption event is outside the control of the Company, all preferred shares have been presented outside of permanent equity. Further, the Company has not adjusted the carrying values of the Series A, Series B, Series C, Series D, Series E, Series F and Series G convertible preferred stock to the redemption value of such shares, because it is uncertain whether or when a redemption event will occur. Subsequent adjustments to increase the carrying values to the redemption values will be made when it becomes probable that such redemption will occur.

Right to Convert

The holders of Series A, Series B, Series C, Series D, Series E, Series F and Series G convertible preferred stock may convert their shares into common stock at any time following the date of issuance at the then applicable conversion rate. The current conversion rate for all series of preferred stock is 1:1.

Automatic Conversion

Each share of Series A, Series B, Series C, Series D, Series E, Series F and Series G convertible preferred stock will convert automatically into common stock (at the then applicable conversion rate) immediately upon the sale of the Company’s common stock in a firm commitment underwritten initial public offering pursuant to a registration statement under the Securities Act of 1933, as amended, with total gross offering proceeds of at least $75,000,000.

Voting

The holders of Series A, Series B, Series C, Series D, Series E, Series F and Series G convertible preferred stock are entitled to one vote for each share of common stock into which such preferred stock could then be converted, on all matters submitted to a vote of the stockholders of the Company.

22. Preferred Stock Warrants

The Company accounts for its issuance of warrants at fair value. The Company has issued warrants to purchase Series F and Series G preferred stock and warrants to purchase common stock. The fair value of warrants issued and outstanding was $19.6 million and $17.0 million, at December 31, 2014 and 2015, respectively.

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The following table summarizes the Company’s preferred stock warrant activity (in thousands):

Balances at December 31, 2013	$	5,899
Issuances		11,934
Exercises		—
Changes in fair value		1,793
Balances at December 31, 2014	$	19,626
Issuances		—
Exercises		—
Changes in fair value		(2,599	)
Balances at December 31, 2015	$	17,027

During 2009, in connection with the issuance of Series F convertible preferred stock, the Company issued warrants to purchase 263,261 shares of the Company’s Series F convertible preferred stock at $18.52 per share. The warrants’ fair value of $3.0 million, on the date of the transaction, was recorded as a warrant liability on the accompanying balance sheet. The valuation of the warrants results in a corresponding discount to the value assigned to Series F convertible preferred stock upon issuance. The warrants are immediately exercisable and expire seven years from the date of issuance. The warrants expire March through May 2016.

During 2010, in connection with a loan agreement with a financial institution, which provided an equipment lease line of an initial aggregate principal amount of up to $20.0 million, which was utilized in its entirety, the Company issued warrants to purchase 16,198 shares of the Company’s Series F convertible preferred stock at $18.52 per share. On the date of issuance, the warrants’ fair value of $0.2 million was recorded as a warrant liability on the accompanying balance sheet. The warrants are immediately exercisable and expire ten years from the date of issuance. The debt discount was amortized to interest expense over the loan’s repayment period.

During 2012, in connection with loan agreements with a financial institution, which provided an equipment lease line of an initial aggregate principal amount of up to $15.0 million, the Company issued warrants to purchase 19,410 shares of the Company’s Series G convertible preferred stock at $25.76 per share. On the date of issuance, the warrants’ fair value of $0.2 million was recorded as a warrant liability on the accompanying balance sheet. The warrants are immediately exercisable and expire ten years from the date of issuance. The debt discount was amortized to interest expense over the loan’s repayment period.

During 2013, the Company issued warrants to purchase an additional 2,753 shares of the Company’s Series F convertible preferred stock at $18.52 per share in connection with a loan agreement with a financial institution, which provided an equipment lease line and to which the Company issued a warrant in 2010. On the date of issuance, the warrants’ fair value of $0.04 million was recorded as a warrant liability on the accompanying balance sheet. The warrants are immediately exercisable and expire ten years from the date of issuance. The debt discount was amortized to interest expense over the loan’s repayment period.

During 2013, in connection with the formation of PPA Company IIIa, the Company issued warrants to purchase 150,000 shares of the Company’s Series F convertible preferred stock at $18.52 per share. On the date of issuance, the warrants’ fair value of $2.1 million was recorded as a warrant liability on the accompanying balance sheet. The warrants are immediately exercisable and expire ten years from the date of issuance. The debt discount is being amortized to interest expense over the loan’s repayment period.

During 2014, in connection with the formation of PPA Company IIIb in 2013 and completion of the related debt financing, the Company issued warrants to purchase 702,823 shares of the Company’s Series F convertible preferred stock at $18.52 per share. On the date of issuance, the warrants’ fair value of $8.7 million was recorded as a warrant liability on the accompanying balance sheet. The warrants are immediately exercisable and expire six years from the date of issuance. The debt discount is being amortized to interest expense over the loan’s repayment period.

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During 2014, in connection with a dispute settlement with a securities placement agent, who is also an investor and who executed a related agency agreement in early 2009, the Company issued warrants to purchase 400,000 shares of the Company’s Series G convertible preferred stock at $25.76 per share. On the date of issuance, the Series G convertible preferred stock warrants fair value of $3.3 million was recorded as warrant liability on the accompanying balance sheet. The warrants are immediately exercisable and expire five years from the date of issuance.

The following table summarizes the warrants outstanding, together with their respective fair values (in thousands, except warrants outstanding):

	December 31, 2014				December 31, 2015
	Warrants		Fair Value of		Warrants		Fair Value of
	Outstanding		Warrants		Outstanding		Warrants
Series F		1,135,035	$	16,172		1,135,035	$	14,267
Series G		419,410		3,454		419,410		2,760
		1,554,445	$	19,626		1,554,445	$	17,027

The Company estimates the fair value of the preferred stock warrants using a probability-weighted expected return model which considers various potential liquidity outcomes and assigned probabilities to each to arrive at the weighted equity value and the changes in fair value are recorded in gain (loss) on revaluation of warrant liabilities in the consolidated statements of operations.

23. Common Stock Warrants

During 2014, in connection with a dispute settlement with the principals of a securities placement agent, who are also investors, and who executed a related agency agreement in early 2009, the Company issued warrants to purchase 50,000 shares of the Company’s common stock at $25.76 per share. The fair value of $3.3 million was recorded as expense in the consolidated statements of operations in 2013 when the obligation became probable. The common stock warrants are immediately exercisable and expire five years from the date of issuance.

24. Stock Option Plan

Under the Company’s 2012 Plan, the Company may grant incentive stock options to employees and nonqualified stock options to employees, directors and consultants. At December 31, 2015, the Company has reserved 1,419,954 shares of common stock for issuance under the Company’s 2002 and 2012 Plans.

Under the 2012 Plan, incentive and nonqualified stock options may be granted at a price not less than fair value and 85% of the fair value of common stock, respectively, (110% of fair value to holders of 10% or more of voting stock). Fair value of common stock is determined by the Board of Directors. Options are exercisable over periods not to exceed ten years (five years for incentive stock options granted to holders of 10% or more of the voting stock) from the date of grant. Generally, options to employees vest with a one- year cliff and then monthly thereafter over four years.

During the years ended December 31, 2014 and 2015, the Company recognized $18.4 million and $19.9 million of employee stock-based compensation expense, respectively. No stock-based compensation costs have been capitalized in the years ended December 31, 2014 and 2015.

The Company did not record any non-employee stock-based compensation expense in the year ended December 31, 2014, and recorded $1.0 million of non-employee stock-based compensation expense during the year ended December 31, 2015.

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The following table summarizes the components of employee and nonemployee stock-based compensation expense at December 31 (in thousands):

	Years Ended December 31,
	2014		2015
Cost of revenue	$	5,135	$	5,525
Research and development expenses		3,915		3,804
Sales and marketing expenses		2,542		3,298
General and administrative expenses		6,655		8,272
	$	18,247	$	20,899

As of December 31, 2015, the Company’s total unrecognized compensation cost related to nonvested stock option to employees was $41.3 million. This expense will be recognized over the remaining weighted-average period of 2.9 years. Cash flows resulting from the tax benefits for tax deductions resulting from the exercise of stock options in excess of the compensation expense recorded for those options (excess tax benefits) are classified as cash from financing activities. The Company had no excess tax benefits in the years ended December 31, 2014 and 2015.

During 2015, the Company granted restricted stock unit awards under the 2012 Plan. Restricted stock unit award shares will vest at the end of the lock-up period following the completion of a liquidity event, or initial public offering, and the remaining shares will vest on the first and second anniversary date of such date. The estimated fair value of restricted stock awards is based on the fair value of the Company’s common stock on the date of grant. The total fair value of the awards granted during fiscal 2015 was $4.3 million. As of December 31, 2015, $11.4 million of total unrecognized stock-based compensation cost related to nonvested restricted stock awards is expected to be recognized over a weighted average period of 1.2 years.

A summary of the Company’s restricted stock unit activity and related information is as follows:

	Number of Awards Outstanding			Weighted Average Grant Date Fair Value
Unvested Balance at December 31, 2013		—		$	—
Granted		383,000			20.54
Vested		—			—
Forfeited		—			—
Unvested Balance at December 31, 2014		383,000			20.54
Granted		207,013			20.57
Vested		(1,000	)		20.59
Forfeited		(32,710	)		20.54
Unvested Balance at December 31, 2015		556,303		$	20.55

Valuation Assumptions

Determining the amount of stock-based compensation to be recorded requires the Company to develop estimates for the inputs used in the Black-Scholes valuation model to calculate the grant-date fair value of stock options. The Black-Scholes model requires the Company to make estimates of the following assumptions on expected volatility, expected option term and the risk-free interest rate. The estimated stock price volatility was derived based on historical volatility of the Company’s peer group, which represents the Company’s best estimate of expected volatility. The Company’s estimate of an expected option life was calculated based on the Company’s historical share option exercise data. The risk free interest rate for periods within the contractual life of the option is based on the U.S. Treasury zero coupon issues in effect at the grant date for periods corresponding with the expected term of option.

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The amount of stock-based compensation recognized during a period is based on the value of the portion of the awards that are ultimately expected to vest. Forfeitures are estimated at the time of grant and revised, if necessary, in subsequent periods if actual forfeitures differ from those estimates. The term “forfeitures” is distinct from “cancellations” or “expirations” and represents only the unvested portion of the surrendered option. The Company reviews historical forfeiture data and determine the appropriate forfeiture rate based on that data. The Company reevaluates this analysis periodically and adjusts the forfeiture rate as necessary and ultimately recognizes the actual expense over the vesting period only for the shares that vest.

The fair value of each stock option is calculated on the date of grant using the Black-Scholes model with the following weighted average assumptions used at December 31:

	Years Ended December 31,
	2014		2015
Risk-free interest rate		1.45% - 2.06%		1.58% - 1.91%
Expected term (in years)		4.00 - 5.89		5.49 - 6.33
Expected dividend yield		—		—
Expected volatility		68.8% - 71.9%		58.7% - 65.6%
Weighted average grant date fair value		$12.60		$11.47

Stock option and RSU activity under the plan is as follows:

				Outstanding Options/RSUs
	Options/ RSUs Available for Grant			Number of Shares			Outstanding Options Weighted Average Exercise Price		Remaining Contractual Life (Years)		Aggregate Intrinsic Value
											(in thousands)
Balances at December 31, 2013		560,538			11,329,046		$	11.42		6.53	$	103,277
Added to plan		4,204,573			—			—
Granted		(1,935,960	)		1,935,960			20.54
Exercised		—			(681,851	)		2.42
Cancelled		572,202			(572,202	)		17.81
Expired		(204,573	)		—			—
Balances at December 31, 2014		3,196,780			12,010,953		$	12.85		6.18	$	89,364
Added to plan		69,443			—			—
Granted		(2,271,033	)		2,271,033			20.58
Exercised		—			(570,837	)		1.25
Cancelled		494,207			(494,207	)		19.93
Expired		(69,443	)		—			—
Balances at December 31, 2015		1,419,954			13,216,942		$	14.38		6.01	$	78,634
Vested and expected to vest at
December 31, 2015					12,275,922		$	14.19		5.89	$	78,604
Exercisable at December 31, 2015					8,693,707		$	11.63		4.91	$	77,855

During the years ended December 31, 2014 and 2015, the intrinsic value of options exercised was $12.4 million and $11.0 million, respectively.

In connection with its grant of options to non-employees, the Company recognized an insignificant amount of compensation expense for non-employee grants in 2014. The Company recognized stock-based compensation of $1.0 million during the year ended December 31, 2015 on an accelerated basis over the vesting period of the individual options. The Company did not grant options to non-employees during the

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year ended December 31, 2014 and granted 128,333 options to non-employees during the year ended December 31, 2015. The Company’s valuations for non-employee grants are made using the Black-Scholes option pricing model.

25. Net Loss per Share Attributable to Common Stockholders and Unaudited Pro Forma Net Loss per Share Attributable to Common Stockholders

The following table sets forth the computation of the Company’s basic and diluted net loss per share attributable to common stockholders (in thousands, except per share amounts):

	Years Ended December 31,
	2014			2015
Numerator:
Net loss	$	(217,616	)	$	(341,003	)
Less: noncumulative dividends to preferred stockholders		—			—
Less: undistributed earnings to participating securities		—			—
Net loss attributable to common stockholders-basic		(217,616	)		(341,003	)
Add: adjustments to undistributed earnings to participating securities		—			—
Net loss attributable to common stockholders-diluted	$	(217,616	)	$	(341,003	)
Denominator:
Weighted average shares of common stock-basic		14,088			14,611
Effect of potentially dilutive stock options		—			—
Weighted average shares of common stock-diluted		14,088			14,611
Net loss per share attributable to common stockholders:
Basic	$	(15.45	)	$	(23.34	)
Diluted	$	(15.45	)	$	(23.34	)

The following common stock equivalents (in thousands) were excluded from the computation of diluted net loss per share for the periods presented because including them would have been antidilutive:

	December 31,
	2014		2015
Convertible redeemable preferred stock		112,592		121,699
Stock options to purchase common stock		4,291		4,147
Convertible redeemable preferred stock warrants		112		113
Total		116,995		125,959

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Unaudited Pro Forma Net Income per Share

The following table sets forth the computation of the Company’s unaudited pro forma basic and diluted net income per share attributable to common stockholders for 2015 (in thousands, except per share amounts) assuming the automatic conversion of the redeemable convertible preferred stock and the automatic conversion of the preferred stock warrants into common stock warrants and the remeasurement and the assumed reclassification to equity upon consummation of a qualified IPO as if it had occurred as of January 1, 2015 (in thousands):

	Year Ended December 31, 2015
Numerator
Net loss	$	(341,003	)
Add: change in fair value of redeemable convertible preferred stock warrant liability		—
Less:		—
Pro forma net income attributable to common stockholders—basic and diluted	$	(341,003	)
Denominator:
Weighted average shares of common stock outstanding		14,611
Pro forma adjustments to reflect assumed conversion of redeemable convertible preferred stock		115,943
Pro forma weighted average shares of common stock-basic		130,554
Effect of potentially dilutive:
Stock options		—
Common stock warrants		—
Pro forma weighted average shares of common stock-diluted		130,554
Pro forma net loss per share attributable to common stockholders—basic and diluted	$	(2.61	)

26. Employee Benefit Plan

The Company sponsors the Bloom Energy 401(k) and Profit Sharing Plan (the Plan). All employees are eligible to participate in the Plan after meeting certain eligibility requirements. Participants may elect to have a portion of their salary deferred and contributed to the Plan up to the limit allowed by applicable income tax regulations. Company contributions to the Plan are discretionary and no such Company contributions have been made since the inception of the Plan.

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27. Related Party Transactions

The Company’s operations included the following related party transactions (in thousands):

	Years Ended December 31,
	2014		2015
Interest paid or payable to related parties (included in interest expense)	$	3,453	$	6,038
Consulting expenses paid to related parties (included in general and administrative expense)		200		200

Related party balances were comprised of the following (in thousands):

	December 31,
	2014		2015
Debt from related parties	$	74,971	$	76,477

Subordinated Secured Convertible Promissory Notes

In December 2014, the Company issued and sold 8% Notes to certain investors for $10.0 million aggregate principal amount each to Alberta Investment Management Corporation, KPCB Holdings, Inc. and New Enterprise Associates. See Note 19, Bank Loans and Security Agreements, for further discussion regarding the Company’s issuance and valuation of the Company’s debt.

Consulting Arrangement

In January 2009, the Company entered into a consulting agreement with General Colin L. Powell, a member of the Company’s board of directors, pursuant to which General Powell performs certain strategic planning and advisory services for the Company. Pursuant to this consulting agreement, General Powell receives compensation of $200,000 per year and reimbursement for reasonable expenses.

28. Segments

The Company’s chief operating decision makers (CODMs), the Chief Executive Officer and the Chief Financial Officer, review financial information presented on a consolidated basis for purposes of allocating resources and evaluating financial performance. The CODMs allocate resources and make operational decisions based on direct involvement with the Company’s operations and product development efforts. The Company is managed under a functionally-based organizational structure, with the head of each function reporting to the Chief Executive Officer. The CODMs assess performance, including incentive compensation, based upon consolidated operations performance and financial results, on a consolidated basis. As such, the Company has a single reporting segment and operating unit structure. In addition, substantially all of the Company’s revenue and long-lived assets are attributable to operations in the United States for all the periods presented.

29. Subsequent Events

In January 2016, the Company issued an additional $25.0 million aggregate principal amount of its 5% Convertible Senior Secured PIK Notes due 2020 (the 5% Notes) pursuant to a certain note purchase agreement with a certain accredited investor, as discussed in Note 14, PPA I Decommissioning. This will be recorded as an equity transaction as a reduction in noncontrolling interest and the difference between the fair value of the notes and noncontrolling interest reduction will be recognized in the Company’s stockholders’ equity.

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                     SHARES

COMMON STOCK

Prospectus

J.P. Morgan	Morgan Stanley
Credit Suisse
BofA Merrill Lynch	Pacific Crest Securities a division of KeyBanc Capital Markets

Baird Cowen and Company              HSBC Raymond James               RBC Capital Markets

Prospectus dated                     , 2016

Part II

Information Not Required in Prospectus

Item 13. Other Expenses of Issuance and Distribution.

The following table presents the costs and expenses we will pay, other than estimated underwriting discounts and commissions, in connection with this offering. All amounts are estimates except the SEC registration fee, the Financial Industry Regulatory Authority, or FINRA, filing fees and the stock exchange listing fee.

SEC registration fee	$	*
FINRA filing fee		*
Stock exchange listing fee		*
Printing and engraving expenses		*
Legal fees and expenses		*
Accounting fees and expenses		*
Blue sky fees and expenses		*
Custodian and transfer agent fees		*
Miscellaneous fees and expenses		*
Total	$	*

* To be completed by amendment

Item 14. Indemnification of Directors and Officers.

Section 145 of the Delaware General Corporation Law authorizes a court to award, or a corporation’s board of directors to grant, indemnity to directors and officers under certain circumstances and subject to certain limitations. The terms of Section 145 of the Delaware General Corporation Law are sufficiently broad to permit indemnification under certain circumstances for liabilities, including reimbursement of expenses incurred, arising under the Securities Act of 1933, as amended, or Securities Act.

Our amended and restated certificate of incorporation, which will be in effect upon the completion of this offering, contains provisions that limit the liability of our directors for monetary damages to the fullest extent permitted by Delaware law. Consequently, our directors will not be personally liable to us or our stockholders for monetary damages for any breach of fiduciary duties as directors, except liability for:

• any breach of the director’s duty of loyalty to us or our stockholders;

• any act or omission not in good faith or that involves intentional misconduct or a knowing violation of law;

• unlawful payments of dividends or unlawful stock repurchases or redemptions as provided in Section 174 of the Delaware General Corporation Law; or

• any transaction from which the director derived an improper personal benefit.

Our amended and restated certificate of incorporation also provides that if Delaware law is amended after the approval by our stockholders of the certificate of incorporation to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of our directors will be eliminated or limited to the fullest extent permitted by Delaware law.

Our amended and restated bylaws provide that we will indemnify our directors and officers to the fullest extent permitted by Delaware law, as it now exists or may in the future be amended, against all expenses and liabilities reasonably incurred for their service for or on our behalf. Our amended and restated bylaws provide

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that we shall advance the expenses incurred by a director or officer in advance of the final disposition of an action or proceeding. The amended and restated bylaws also authorize us to indemnify any of our employees or agents and permit us to secure insurance on behalf of any officer, director, employee or agent for any liability arising out of his or her action in that capacity, whether or not Delaware law would otherwise permit indemnification.

We have entered into indemnification agreements with each of our directors and executive officers and certain other key employees, a form of which is attached as Exhibit 10.1. The form of agreement provides that we will indemnify each of our directors, executive officers and such other key employees against any and all expenses incurred by that director, executive officer or other key employee because of his or her status as one of our directors, executive officers or other key employees, to the fullest extent permitted by Delaware law, our restated certificate of incorporation and our amended and restated bylaws (except in a proceeding initiated by such person without board approval). In addition, the form agreement provides that, to the fullest extent permitted by Delaware law, we will advance all expenses incurred by our directors, executive officers and other key employees for a legal proceeding.

Reference is made to Section          of the underwriting agreement contained in Exhibit 1.1 to this registration statement, indemnifying our directors and officers against limited liabilities. In addition, Section 12 of our eighth amended and restated registration rights agreement, as amended, contained in Exhibit 4.2 to this registration statement provides for indemnification of certain of our stockholders against liabilities described therein.

Item 15. Recent Sales of Unregistered Securities.

Since March 1, 2013, we have issued the following securities that were not registered under the Securities Act of 1933, as amended:

(1) Issuances of Capital Stock

Between June 2012 and January 2014, we sold an aggregate of 27,936,562 shares of Series G convertible preferred stock at a per share purchase price of $25.76 to accredited investors pursuant to a series of stock purchase agreements, for an aggregate consideration of $719,645,837. Each share of our Series G convertible preferred stock will convert automatically into one share of our common stock immediately prior to completion of this offering.

On each of June 27, 2014 and July 1, 2015, we issued 100,000 shares of Series G convertible preferred stock as part of a dispute settlement with a securities placement agent, who is also an investor and who executed a related agency agreement in early 2009. These shares of Series G convertible preferred stock have substantially similar terms and conditions as the currently outstanding shares of Series G convertible preferred stock.

In September 2015, we entered into a common stock award agreement with one of our customers pursuant to which up to a total of 400,000 shares of our common stock will be issued to such customer on the occurrence of certain installation milestones. As of December 31, 2015, no shares of our common stock had been issued to such customer pursuant to this agreement.

(2) Subordinated Secured Convertible Promissory Notes

Between December 2014 and June 2015, we issued $193.2 million aggregate principal amount in three-year 8% Notes to certain convertible promissory note purchase agreements with certain accredited investors. The 8% Notes bear a fixed interest rate of 8.0%, compounded monthly, and are due at maturity or, at the election of the investor, the accrued interest during each annual period would be due on each anniversary of the respective original issuance date of the notes. As of December 31, 2015, the outstanding principal and accrued interest on the 8% Notes was $208.6 million. The outstanding principal and accrued interest on each 8% Note will

II-2

mandatorily convert into shares of our Series G convertible preferred stock at a conversion price per share of $25.76, and each such share of Series G convertible preferred stock will convert automatically into one share of our common stock, immediately prior to completion of this offering.

(3) 5% Convertible Senior Secured PIK Notes due 2020

On December 15, 2015, we issued $160.0 million aggregate principal amount of our 5% Convertible Senior Secured PIK Notes due 2020 (the 5% Notes) pursuant to a certain note purchase agreement with certain accredited investors and qualified institutional buyers and pursuant to a certain indenture dated as of December 15, 2015. The 5% Notes are secured by our working capital, fixed assets, intellectual property and other assets, subject to certain exceptions. The 5% Notes bear a fixed interest rate of 5%, compounded monthly and payable in cash or in kind at our election, and are due on December 1, 2020. As of December 31, 2015, the outstanding principal and accrued interest on the 5% Notes was $160.3 million. Following the completion of this offering, the 5% Notes will be convertible at the option of the holders thereof into shares of our common stock at an initial conversion price per share equal to the lower of $30.91 and 90% of the offering price of our common stock sold in this offering. In addition, following completion of this offering, the 5% Notes will be redeemable by us under certain circumstances at a redemption price payable in cash equal to 100% of the principal amount of the 5% Notes to be redeemed, plus accrued but unpaid interest.

In addition, in connection with the issuance of the 5% Notes, we agreed to issue to certain purchasers of the 5% Notes, upon the occurrence of certain conditions, warrants to purchase up to a maximum of 469,333 shares of our common stock at an exercise price of $0.01 per share (the Note Warrants). The Note Warrants will automatically be deemed exercised immediately prior to the completion of this offering.

In January 2016, we issued an additional $25.0 million aggregate principal amount of our 5% Notes in connection with our repurchase of an interest in PPA I.

(4) Options Issuances

• From January 1, 2013 through December 31, 2015, we issued and sold an aggregate of 1,726,489 shares of common stock upon the exercise of options issued to certain officers, directors, employees and consultants of the registrant under our 2002 Equity Incentive Plan and 2012 Equity Incentive Plan at exercise prices per share ranging from $0.10 to $20.54, for an aggregate consideration of approximately $4.4 million. In addition, we issued 2,580 shares of common stock upon the exercise of restricted stock unit awards to consultants of the registrant under our 2002 Equity Incentive Plan and 2012 Equity Incentive Plan with an average grant date fair value of $20.55 per share.

• From January 1, 2013 through December 31, 2015, we granted direct issuances or stock options to purchase an aggregate of 5,016,983 shares of our common stock at exercise prices per share ranging from $20.48 to $20.59 share to employees, consultants, directors and other service providers under our 2002 Equity Incentive Plan and 2012 Equity Incentive Plan. In addition, we granted restricted stock unit awards for 591,593 shares of common stock to certain officers, directors, employees and consultants of the registrant under our 2002 Equity Incentive Plan and 2012 Equity Incentive Plan with an average grant date fair value of $20.55 per share.

Except as set forth above, none of the foregoing transactions involved any underwriters, underwriting discounts or commissions, or any public offering, and the registrant believes the transactions were exempt from the registration requirements of the Securities Act in reliance on Section 4(a)(2) thereof, with respect to items (1) and (2) above, Section 4(a)(2) of the Securities Act and Rule 144A thereunder, with respect to item (3) above, and Rule 701 thereunder, with respect to item (4) above, as transactions by an issuer not involving a public offering or transactions pursuant to compensatory benefit plans and contracts relating to compensation as provided under such Rule 701.

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Item 16. Exhibits and Financial Statement Schedules.

D. Exhibits.

Exhibit Number	Description
1.1†	Form of Underwriting Agreement
3.1†	Amended and Restated Certificate of Incorporation of the Registrant, to be effective upon closing of this offering
3.2†	Amended and Restated Bylaws of the Registrant, to be effective upon the closing of this offering
3.3	Amended and Restated Certificate of Incorporation of the Registrant, as amended and currently in effect
3.4	Bylaws of the Registrant, as currently in effect
4.1†	Form of Common Stock Certificate of the Registrant
4.2	Eighth Amended and Restated Registration Rights Agreement by and among the Registrant and certain stockholders of the Registrant, dated June 30, 2011
4.3	Amendment No. 1 to Eighth Amended and Restated Registration Rights Agreement by and among the Registrant and certain stockholders of the Registrant, dated December 14, 2015
4.4	Indenture by and among the Registrant, certain guarantors party thereto and U.S. Bank National Association, as trustee, dated as of December 15, 2015
4.5	Form of 5% Convertible Senior Secured PIK Note due 2020 (included in Exhibit 4.4)
4.6	Security Agreement by and among the Registrant, certain guarantors party thereto and U.S. Bank National Association, as collateral agent, dated as of December 15, 2015
4.7	Agreement and Warrant to Purchase Common Stock by and between Keith Daubenspeck and the Registrant, dated June 27, 2014
4.8	Agreement and Warrant to Purchase Common Stock by and between Dwight Badger and the Registrant, dated June 27, 2014
4.9	Plain English Warrant Agreement by and between Triplepoint Capital LLC, a Delaware limited liability company, and the Registrant, dated December 31, 2010
4.10	Amended and Restated Plain English Warrant Agreement by and between Triplepoint Capital LLC, a Delaware limited liability company, and the Registrant, dated December 15, 2011
4.11	Agreement and Warrant to Purchase Series F Preferred Stock by and between PE12GVVC (US Direct) Ltd. and the Registrant, dated July 1, 2014
4.12	Agreement and Warrant to Purchase Series F Preferred Stock by and between PE12PXVC (US Direct) Ltd. and the Registrant, dated July 1, 2014
4.13	Warrant to Purchase Preferred Stock by and between Atel Ventures, Inc., in its capacity as Trustee for its assignee affiliated funds, and the Registrant, dated December 31, 2012
4.14	Plain English Warrant Agreement by and between Triplepoint Capital LLC, a Delaware limited liability company, and the Registrant, dated September 27, 2012
4.15	Agreement and Warrant to Purchase Series G Preferred Stock by and between Keith Daubenspeck and the Registrant, dated June 27, 2014
4.16	Agreement and Warrant to Purchase Series G Preferred Stock by and between Dwight Badger and the Registrant, dated June 27, 2014

II-4

Exhibit Number	Description
5.1†	Opinion of Fenwick & West LLP
10.1†	Form of Indemnification Agreement for directors and executive officers
10.2	2002 Equity Incentive Plan and form of agreements used thereunder
10.3	2012 Equity Incentive Plan and form of agreements used thereunder
10.4†	2016 Equity Incentive Plan and form of agreements used thereunder
10.5†	2016 Employee Stock Purchase Plan and form of agreements used thereunder
10.6	NASA Ames Research Center Enhanced Use Lease dated December 5, 2011 by and between the Registrant and National Aeronautics and Space Administration, as amended as of November 1, 2012 and August 25, 2014
10.7	Standard Industrial Lease dated April 5, 2005 by and between the Registrant and The Realty Associates Fund III, L.P., as amended as of April 22, 2005, January 12, 2010, April 30, 2015 and December 7, 2015
10.8	Ground Lease by and between 1743 Holdings, LLC and the Registrant dated as of March 2012.
10.9	Offer Letter by and between the Registrant and KR Sridhar, dated April 1, 2002
10.10	Offer Letter by and between the Registrant and Randy Furr, dated April 9, 2015
10.11	Offer Letter by and between the Registrant and Susan Brennan, dated October 3, 2013
10.12*	Second Amended and Restated Limited Liability Company Agreement of Diamond State Generation Holdings, LLC, dated as of March 20, 2013
10.13*	Guaranty by the Registrant, dated as of March 16, 2012
10.14*	Master Operation and Maintenance Agreement by and between Diamond State Generation Partners, LLC and the Registrant, dated as of April 13, 2012
10.15*	Equity Contribution Agreement by and among the Registrant, Diamond State Generation Partners, LLC, and Deutsche Bank Trust Company Americas, dated as of March 20, 2013
10.16*	Note Purchase Agreement by and between Diamond State Generation Partners, LLC and the Purchasers thereunder, dated as of March 20, 2013
21.1†	List of Subsidiaries
23.1†	Consent of Independent Registered Public Accounting Firm
23.2†	Consent of Fenwick & West LLP (See Exhibit 5.1)
24.1	Power of Attorney (see page II-7 to this registration statement)

† To be filed by amendment.

* Confidential treatment requested with respect to portions of this exhibit.

(b) Financial Statements Schedules—All schedules are omitted because they are not applicable or the required information is shown in the financial statements or notes thereto.

II-5

Item 17. Undertakings.

The undersigned Registrant hereby undertakes to provide to the underwriters at the closing specified in the underwriting agreement certificates in such denominations and registered in such names as required by the underwriters to permit prompt delivery to each purchaser.

Insofar as indemnification for liabilities arising under the Securities Act of 1933, as amended (the Securities Act), may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.

The undersigned Registrant hereby undertakes that:

(1) For purposes of determining any liability under the Securities Act, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective.

(2) For the purpose of determining any liability under the Securities Act, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

II-6

Signatures

Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Sunnyvale, State of California, on the                      day of             , 2016.

BLOOM ENERGY CORPORATION
By:
	KR Sridhar
	Founder, President, Chief Executive Officer and Director

Power of Attorney

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints                      and                     , and each of them, as his true and lawful attorneys-in-fact and agents, with full power of each to act alone, with full powers of substitution and resubstitution, for him and in his name, place or stead, in any and all capacities, to sign the registration statement filed herewith and any and all amendments to said registration statement (including post-effective amendments and any registration statement for the same offering covered by said registration statement that is to be effective upon filing pursuant to Rule 462 promulgated under the Securities Act of 1933, as amended, and all post-effective amendments thereto), and file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, with full power of each to act alone, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or his or her or their substitute or substitutes, may lawfully do or cause to be done hereby by virtue hereof.

II-7

Pursuant to the requirements of the Securities Act of 1933, this amendment to the Registration Statement has been signed by the following persons in the capacities and on the dates indicated:

Signature	Title	Date
KR Sridhar	Founder, President, Chief Executive Officer and Director (Principal Executive Officer)
Randy Furr	Chief Financial Officer (Principal Financial and Accounting Officer)
Steve Case	Director
John Doerr	Director
Colin L. Powell	Director
T.J. Rodgers	Director
Scott Sandell	Director
Peter Teti	Director
Eddy Zervigon	Director

II-8

Exhibit Index

Exhibit Number	Description
1.1†	Form of Underwriting Agreement
3.1†	Amended and Restated Certificate of Incorporation of the Registrant, to be effective upon closing of this offering
3.2†	Amended and Restated Bylaws of the Registrant, to be effective upon the closing of this offering
3.3	Amended and Restated Certificate of Incorporation of the Registrant, as amended and currently in effect
3.4	Bylaws of the Registrant, as currently in effect
4.1†	Form of Common Stock Certificate of the Registrant
4.2	Eighth Amended and Restated Registration Rights Agreement by and among the Registrant and certain stockholders of the Registrant, dated June 30, 2011
4.3	Amendment No. 1 to Eighth Amended and Restated Registration Rights Agreement by and among the Registrant and certain stockholders of the Registrant, dated December 14, 2015
4.4	Indenture by and among the Registrant, certain guarantors party thereto and U.S. Bank National Association, as trustee, dated as of December 15, 2015
4.5	Form of 5% Convertible Senior Secured PIK Note due 2020 (included in Exhibit 4.4)
4.6	Security Agreement by and among the Registrant, certain guarantors party thereto and U.S. Bank National Association, as collateral agent, dated as of December 15, 2015
4.7	Agreement and Warrant to Purchase Common Stock by and between Keith Daubenspeck and the Registrant, dated June 27, 2014
4.8	Agreement and Warrant to Purchase Common Stock by and between Dwight Badger and the Registrant, dated June 27, 2014
4.9	Plain English Warrant Agreement by and between Triplepoint Capital LLC, a Delaware limited liability company, and the Registrant, dated December 31, 2010
4.10	Amended and Restated Plain English Warrant Agreement by and between Triplepoint Capital LLC, a Delaware limited liability company, and the Registrant, dated December 15, 2011
4.11	Agreement and Warrant to Purchase Series F Preferred Stock by and between PE12GVVC (US Direct) Ltd. and the Registrant, dated July 1, 2014
4.12	Agreement and Warrant to Purchase Series F Preferred Stock by and between PE12PXVC (US Direct) Ltd. and the Registrant, dated July 1, 2014
4.13	Warrant to Purchase Preferred Stock by and between Atel Ventures, Inc., in its capacity as Trustee for its assignee affiliated funds, and the Registrant, dated December 31, 2012
4.14	Plain English Warrant Agreement by and between Triplepoint Capital LLC, a Delaware limited liability company, and the Registrant, dated September 27, 2012
4.15	Agreement and Warrant to Purchase Series G Preferred Stock by and between Keith Daubenspeck and the Registrant, dated June 27, 2014
4.16	Agreement and Warrant to Purchase Series G Preferred Stock by and between Dwight Badger and the Registrant, dated June 27, 2014
5.1†	Opinion of Fenwick & West LLP
10.1†	Form of Indemnification Agreement for directors and executive officers

Exhibit Number	Description
10.2	2002 Equity Incentive Plan and form of agreements used thereunder
10.3	2012 Equity Incentive Plan and form of agreements used thereunder
10.4†	2016 Equity Incentive Plan and form of agreements used thereunder
10.5†	2016 Employee Stock Purchase Plan and form of agreements used thereunder
10.6	NASA Ames Research Center Enhanced Use Lease dated December 5, 2011 by and between the Registrant and National Aeronautics and Space Administration, as amended as of November 1, 2012 and August 25, 2014
10.7	Standard Industrial Lease dated April 5, 2005 by and between the Registrant and The Realty Associates Fund III, L.P., as amended as of April 22, 2005, January 12, 2010, April 30, 2015 and December 7, 2015
10.8	Ground Lease by and between 1743 Holdings, LLC and the Registrant dated as of March 2012
10.9	Offer Letter by and between the Registrant and KR Sridhar, dated April 1, 2002
10.10	Offer Letter by and between the Registrant and Randy Furr, dated April 9, 2015
10.11	Offer Letter by and between the Registrant and Susan Brennan, dated October 3, 2013
10.12*	Second Amended and Restated Limited Liability Company Agreement of Diamond State Generation Holdings, LLC, dated as of March 20, 2013
10.13*	Guaranty by the Registrant, dated as of March 16, 2012
10.14*	Master Operation and Maintenance Agreement by and between Diamond State Generation Partners, LLC and the Registrant, dated as of April 13, 2012
10.15*	Equity Contribution Agreement by and among the Registrant, Diamond State Generation Partners, LLC, and Deutsche Bank Trust Company Americas, dated as of March 20, 2013
10.16*	Note Purchase Agreement by and between Diamond State Generation Partners, LLC and the Purchasers thereunder, dated as of March 20, 2013
21.1†	List of Subsidiaries
23.1†	Consent of Independent Registered Public Accounting Firm
23.2†	Consent of Fenwick & West LLP (See Exhibit 5.1)
24.1	Power of Attorney (see page II-7 to this registration statement)

† To be filed by amendment.

* Confidential treatment requested with respect to portions of this exhibit.

EX-3

Exhibit 3.3

State of Delaware

Secretary of State

Division of Corporations

Delivered 07:59 PM 06/29/2011

FILED 07:53 PM 06/29/2011

SRV 110778914 - 3345681 FILE

TENTH AMENDED AND RESTATED CERTIFICATE OF INCORPORATION

OF BLOOM ENERGY CORPORATION

Bloom Energy Corporation, a corporation organized and existing under the laws of the State of Delaware, hereby certifies as follows:

A. The name of the corporation is Bloom Energy Corporation. The corporation was originally incorporated under the name of Ion America Corporation. The original Certificate of Incorporation of the corporation was filed with the Secretary of State of the State of Delaware on January 18, 2001.

B. This Tenth Amended and Restated Certificate of Incorporation has been duly adopted in accordance with the provisions of the General Corporation Law of the State of Delaware by the Board of Directors (the “Board”) and the stockholders of the corporation.

C. Pursuant to Sections 242 and 245 of the General Corporation Law of the State of Delaware, and with the approval of the corporation’s stockholders having been given by written consent without a meeting in accordance with Section 228 thereof, this Tenth Amended and Restated Certificate of Incorporation restates, integrates and amends the provisions of the Certificate of Incorporation of this corporation as currently in effect.

D. The text of the Certificate of Incorporation as currently in effect is hereby amended and restated in its entirety to read as follows:

ARTICLE I

The name of the corporation is Bloom Energy Corporation (the “Company”).

ARTICLE II

The address of the Company’s registered office in the State of Delaware is 1209 Orange Street, City of Wilmington, County of New Castle, State of Delaware 19801. The name of its registered agent at such address is The Corporation Trust Company.

ARTICLE III

The purpose of the Company is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware.

ARTICLE IV

The Company is authorized to issue two classes of stock, designated “Common Stock” and “Preferred Stock,” respectively. The total number of shares that the Company is authorized to issue is 207,594,000 shares, $0.0001 par value. The number of shares of Common Stock (“Common”)

that the Company is authorized to issue is 116,272,000 shares, and the number of shares of Preferred Stock (“Preferred”) that the Company is authorized to issue is 91,322,000 shares. Of the authorized shares of Preferred, 14,100,000 shares shall be designated “Series A Preferred,” 12,150,000 shares shall be designated “Series B Preferred,” 9,000,000 shall be designated “Series C Preferred,” 10,700,000 shares shall be designated “Series D Preferred,” 16,500,000 shares shall be designated “Series E Preferred,” 21,108,000 shares shall be designated “Series F Preferred” and 7,764,000 shares shall be designated “Series G Preferred.”

The relative rights, powers, preferences, privileges, and restrictions granted to or imposed on the respective classes of the shares of capital stock or the holders thereof are as follows; provided, however, that (i) except as prohibited by law and except as restricted by Section 5 hereof, the holders of an aggregate of at least 51% of the then-outstanding shares of Preferred may waive any of the following rights, powers, preferences, or privileges applicable to all shares of Preferred in any given instance without prejudice to such rights, powers, preferences, or privileges in any other instance (provided that any such waiver shall not be exercised to adversely affect the rights, powers, preferences, or privileges of one or more series of Preferred and in a manner not so affecting the entire class of Preferred) and (ii) any such waiver shall be binding on all future holders of Preferred.

Notwithstanding the foregoing, in the event of a reduction in Liquidation Preference (directly or indirectly, by merger, reclassification or otherwise) that is effected in connection with and not earlier than 60 days prior to the Company’s entering into an agreement for any combination transaction as set forth in Section 2(b) of this Article IV in which the gross proceeds (inclusive of amounts subject to escrow or other contingency arrangements to support the accuracy of representations of the Company or its stockholders, whether or not such amounts are ultimately received by the stockholders of the Company) payable (i) with respect to the Series D Preferred is less than the Liquidation Preference for the Series D Preferred, such reduction of Liquidation Preference shall also require written consent of the holders of a majority of the then-outstanding shares of the Series D Preferred, voting together as a separate class, (ii) with respect to the Series E Preferred is less than the Liquidation Preference for the Series E Preferred, such reduction of Liquidation Preference shall also require written consent of the holders of a majority of the then- outstanding shares of the Series E Preferred, voting together as a separate class, (iii) with respect to the Series F Preferred is less than the Liquidation Preference for the Series F Preferred, such reduction of Liquidation Preference shall also require written consent of the holders of a majority of the then-outstanding shares of the Series F Preferred, voting together as a separate class or (iv) with respect to the Series G Preferred is less than the Liquidation Preference for the Series G Preferred, such reduction of Liquidation Preference shall also require written consent of the holders of a majority of the then-outstanding shares of the Series G Preferred, voting together as a separate class.

1. Dividends. The holders of Preferred shall be entitled to receive annual dividends payable out of funds legally available therefor, prior and in preference to any declaration or payment of any dividend on the Common Stock, at the respective rates of $0.03335 per share of Series A Preferred, $0.10 per share of Series B Preferred, $0.50175 per share of Series C Preferred, $1.075 per share of Series D Preferred, $1.179 per share of Series E Preferred, $1.852 per share of Series F Preferred and $2.576 per share of Series G Preferred (in each case, as adjusted for any stock splits, stock dividends or distributions, recapitalizations, and similar events with respect to such series of Preferred). Such dividends shall be payable only when, as, and if declared by the Board and shall

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not be cumulative. No dividends or distributions shall be made with respect to the Common Stock, other than dividends payable solely in Common Stock, unless at the same time an equivalent dividend with respect to the Preferred (based on the number of shares of Common Stock into which the Preferred is then convertible) has been paid or set apart for payment.

2. Liquidation Preference. In the event of any liquidation, dissolution, or winding up of the Company (a “Liquidation”), either voluntary or involuntary, distributions to the stockholders of the Company shall be made in the following manner:

(a) (i) The holders of the Preferred shall be entitled to receive, prior and in preference to any distribution of any of the assets or surplus funds of the Company or consideration received in such Liquidation to the holders of the Common Stock by reason of their ownership of such stock, the amounts of $0.3335, $1.0165, $5.0175, $10.75, $11.79, $18.52 and $25.76 for each share of Series A Preferred, Series B Preferred, Series C Preferred, Series D Preferred, Series E Preferred, Series F Preferred or Series G Preferred, respectively, then held by them (in each case as adjusted for any stock splits, stock dividends or distributions, recapitalizations, and similar events with respect to such series of Preferred) and, in addition, an amount equal to all declared but unpaid dividends, if any, on such Preferred, as the case may require (the “Liquidation Preference”). If the assets, funds or consideration thus distributed among the holders of the Preferred shall be insufficient to permit the payment to such holders of the full Liquidation Preference, then the entire assets and funds of the Company legally available for distribution shall be distributed pro-rata among the holders of the Preferred in proportion to the full amount each such holder would otherwise be entitled to receive pursuant to this Section 2(a)(i).

(ii) After giving effect to the provisions of Section 2(a)(i), all of the assets of the Company and consideration received in the Liquidation shall be distributed to the holders of Common Stock pro rata based on the number of shares of Common Stock held by each such holder.

(b) For purposes of this Section 2, any of the following shall be treated as a Liquidation: (i) any consolidation or merger of the Company with or into any other corporation or other entity or person (but excluding any merger effected solely for the purpose of reincorporating into another state), or any other corporate reorganization (any of such transactions or series of such transactions, a “combination transaction”), in which the stockholders of the Company immediately prior to such combination transaction, own less than 50% of the voting power of the surviving or successor entity or its parent immediately after such combination transaction; (ii) any transaction or series of related transactions to which the Company is a party in which in excess of 50% of the Company’s voting power is transferred; or (iii) any sale, lease, or other disposition of all or substantially all of the assets of the Company. Notwithstanding the foregoing, no transaction or series of related transactions principally for bona fide equity financing purposes in which cash is received by the Company or indebtedness of the Company is cancelled or converted, or a combination thereof, nor the transfer by any shareholder of shares of the Company’s capital stock to any third party in a transaction or series of related transactions to which the Company is not a party, shall be deemed a Liquidation for purposes of this Section 2.

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(c) Any securities to be delivered pursuant to Section 2(b) above shall be valued as follows:

(i) securities not subject to investment letter or other similar restrictions on free marketability:

(A) if traded on a nationally recognized securities exchange or on the Nasdaq National Market, the value shall be deemed to be the average of the closing sale prices of the securities on such exchange over the 30-day period ending three (3) days prior to the closing of the relevant transaction;

(B) if actively traded over-the-counter or through an automated dealer quotation system (other than the Nasdaq National Market), the value shall be deemed to be the average of the closing bid or sale prices (whichever are applicable) over the 30-day period ending three (3) days prior to the closing; and

(C) if there is no active public market, the value shall be the fair market value thereof, as determined by the Board in good faith.

(ii) The method of valuation of securities subject to investment letter or other restrictions on free marketability (other than restrictions arising solely by virtue of a stockholder’s status as an affiliate or former affiliate) shall be to make an appropriate discount from the market value determined as above in subparagraphs 2(c)(i)(A), (B), or (C) to reflect the approximate fair market value thereof, as determined by the Board in good faith.

(d) Consent to Certain Distributions. So long as the Company is subject to the provisions of Section 2115(b) of the California Corporations Code, and as authorized by Section 402.5(c) of the California Corporations Code, Sections 502, 503 and 506 of the California Corporations Code shall not apply with respect to payments made by the Company in connection with (i) repurchases of Common Stock issued to or held by employees, officers, directors or consultants of the Company or its subsidiaries upon termination of their employment or services pursuant to agreements providing for the right of said repurchase, (ii) repurchases of Common Stock issued to or held by employees, officers, directors or consultants of the Company or its subsidiaries pursuant to rights of first refusal contained in agreements providing for such right, (iii) repurchase of capital stock of the Company in connection with the settlement of disputes with any stockholder, (iv) any other repurchase or redemption of capital stock of the Company approved by the holders of Preferred Stock of the Company pursuant to Section 5; provided, however, that the foregoing shall not apply unless the Company is subject to the provisions of Section 2115(b) of the California Corporations Code; provided, further, that the provisions of this Section 2(d) shall in no manner limit the provisions of Section 5 hereof.

3. Redemption. The Company shall not have the right to call or redeem at any time all or any shares of Preferred.

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4. Conversion. The holders of the Preferred shall have conversion rights as follows:

(a) Right to Convert. Subject to Section 4(b) below, each share of Series A Preferred shall be convertible, at the option of the holder thereof, at any time after the date of issuance of such share at the office of the Company or any transfer agent for the Series A Preferred, into such number of fully paid and nonassessable shares of Common Stock as is determined by dividing $0.3335 by the Series A Conversion Price, determined as hereinafter provided, in effect at the time of conversion (the “Series A Conversion Rate”). The “Series A Conversion Price” shall initially be $0.3335 per share of Common Stock. The Series A Conversion Price and the Series A Conversion Rate shall be subject to further adjustment as hereinafter provided.

Subject to Section 4(b) below, each share of Series B Preferred shall be convertible, at the option of the holder thereof, at any time after the date of issuance of such share at the office of the Company or any transfer agent for the Series B Preferred, into such number of fully paid and nonassessable shares of Common Stock as is determined by dividing $1.0165 by the Series B Conversion Price, determined as hereinafter provided, in effect at the time of conversion (the “Series B Conversion Rate”). The “Series B Conversion Price” shall initially be $1.0165 per share of Common Stock. The Series B Conversion Price and the Series B Conversion Rate shall be subject to further adjustment as hereinafter provided.

Subject to Section 4(b) below, each share of Series C Preferred shall be convertible, at the option of the holder thereof, at any time after the date of issuance of such share at the office of the Company or any transfer agent for the Series C Preferred, into such number of fully paid and nonassessable shares of Common Stock as is determined by dividing $5.0175 by the Series C Conversion Price, determined as hereinafter provided, in effect at the time of conversion (the “Series C Conversion Rate”). The “Series C Conversion Price” shall initially be $5.0175 per share of Common Stock. The Series C Conversion Price and the Series C Conversion Rate shall be subject to further adjustment as hereinafter provided.

Subject to Section 4(b) below, each share of Series D Preferred shall be convertible, at the option of the holder thereof, at any time after the date of issuance of such share at the office of the Company or any transfer agent for the Series D Preferred, into such number of fully paid and nonassessable shares of Common Stock as is determined by dividing $10.75 by the Series D Conversion Price, determined as hereinafter provided, in effect at the time of conversion (the “Series D Conversion Rate”). The “Series D Conversion Price” shall initially be $10.75 per share of Common Stock. The Series D Conversion Price and the Series D Conversion Rate shall be subject to further adjustment as hereinafter provided.

Subject to Section 4(b) below, each share of Series E Preferred shall be convertible, at the option of the holder thereof, at any time after the date of issuance of such share at the office of the Company or any transfer agent for the Series E Preferred, into such number of fully paid and nonassessable shares of Common Stock as is determined by dividing $11.79 by the Series E Conversion Price, determined as hereinafter provided, in effect at the time of conversion (the “Series E Conversion Rate”). The “Series E Conversion Price” shall initially be $11.79 per share of Common Stock. The Series E Conversion Price and the Series E Conversion Rate shall be subject to further adjustment as hereinafter provided.

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Subject to Section 4(b) below, each share of Series F Preferred shall be convertible, at the option of the holder thereof, at any time after the date of issuance of such share at the office of the Company or any transfer agent for the Series F Preferred, into such number of fully paid and nonassessable shares of Common Stock as is determined by dividing $18.52 by the Series F Conversion Price, determined as hereinafter provided, in effect at the time of conversion (the “Series F Conversion Rate”). The “Series F Conversion Price” shall initially be $18.52 per share of Common Stock. The Series F Conversion Price and the Series F Conversion Rate shall be subject to further adjustment as hereinafter provided.

Subject to Section 4(b) below, each share of Series G Preferred shall be convertible, at the option of the holder thereof, at any time after the date of issuance of such share at the office of the Company or any transfer agent for the Series G Preferred, into such number of fully paid and nonassessable shares of Common Stock as is determined by dividing $25.76 by the Series G Conversion Price, determined as hereinafter provided, in effect at the time of conversion (the “Series G Conversion Rate”). The “Series G Conversion Price” shall initially be $25.76 per share of Common Stock. The Series G Conversion Price and the Series G Conversion Rate shall be subject to further adjustment as hereinafter provided.

(b) Automatic Conversion.

(i) Each share of Preferred shall automatically be converted into shares of Common Stock at its then effective respective Conversion Rate upon the date of the closing (the “Public Offering Closing Date”) of a firm commitment underwritten public offering (the “Public Offering”) pursuant to an effective registration statement under the Securities Act of 1933, as amended, covering the offer and sale to the public of Common Stock for the account of the Company with aggregate gross proceeds to the Company of at least $75,000,000.

(ii) In addition, each share of Preferred (other than any shares of Series E Preferred) shall automatically be converted into shares of Common Stock at its then-effective respective Conversion Rate upon the written consent of the holders of a majority of the then-outstanding Preferred (but excluding outstanding shares of Series E Preferred in the calculation of such majority), voting together as a single class on an as-converted basis; provided, however, in the event of an automatic conversion that is effected pursuant to Section 4(b)(ii) in connection with and not earlier than 60 days prior to the Company’s entering into an agreement for any combination transaction as set forth in Section 2(b) of this Article IV, (A) in which the gross proceeds (inclusive of amounts subject to escrow or other contingency arrangements to support the accuracy of representations of the Company or its stockholders, whether or not such amounts are ultimately received by the stockholders of the Company) payable with respect to the Series D Preferred is less than the Liquidation Preference for the Series D Preferred, such automatic conversion shall also require the written consent of the holders of a majority of the then-outstanding shares of the Series D Preferred, voting together as a separate class, on an as-converted basis, (B) in which the gross proceeds (inclusive of amounts subject to escrow or other contingency arrangements to support the accuracy of representations of the Company or its stockholders, whether or not such amounts are ultimately received by the stockholders of the Company) payable with respect to the Series F Preferred is less than the Liquidation Preference for the Series F Preferred, such automatic conversion shall also require the written consent of the holders of a majority of the then-outstanding

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shares of the Series F Preferred, voting together as a separate class, on an as-converted basis and (C) in which the gross proceeds (inclusive of amounts subject to escrow or other contingency arrangements to support the accuracy of representations of the Company or its stockholders, whether or not such amounts are ultimately received by the stockholders of the Company) payable with respect to the Series G Preferred is less than the Liquidation Preference for the Series G Preferred, such automatic conversion shall also require the written consent of the holders of a majority of the then-outstanding shares of the Series G Preferred, voting together as a separate class, on an as-converted basis.

(iii) In addition, each share of Series E Preferred shall automatically be converted into shares of Common Stock at its then-effective Conversion Rate upon the written consent of the holders of a majority of the then-outstanding Series E Preferred voting together as a separate class on an as-converted basis.

(c) Mechanics of Conversion. No fractional shares of Common Stock shall be issued upon conversion of the Preferred. All shares of Common Stock (including fractions thereof) issuable upon conversion of more than one share of Preferred by a holder thereof shall be aggregated for purposes of determining whether the conversion would result in the issuance of any fractional share. In lieu of any fractional shares to which the holder would otherwise be entitled, the Company shall pay cash equal to such fraction multiplied by the fair market value of one share of Common Stock (as determined by the Board) on the date of conversion. Before any holder of Preferred shall be entitled to convert the same into full shares of Common Stock and to receive certificates therefor, such holder shall surrender the certificate or certificates therefor, duly endorsed, at the office of the Company or of any transfer agent for the Preferred, and shall give written notice to the Company at such office that such holder elects to convert the same; provided, however, that in the event of an automatic conversion pursuant to Section 4(b), the outstanding shares of Preferred shall be converted automatically without any further action by the holder of such shares and whether or not the certificates representing such shares are surrendered to the Company or its transfer agent, and provided further that the Company shall not be obligated to issue certificates evidencing the shares of Common Stock issuable upon such automatic conversion unless the certificates evidencing such shares of Preferred are either delivered to the Company or its transfer agent as provided above, or the holder notifies the Company or its transfer agent that such certificates have been lost, stolen, or destroyed and executes an agreement satisfactory to the Company to indemnify the Company from any loss incurred by it in connection with the loss and replacement of such certificates. The Company shall, as soon as practicable after such delivery, or such agreement and indemnification in the case of a lost certificate, issue and deliver at such office to such holder of Preferred, a certificate or certificates for the number of shares of Common Stock to which such holder shall be entitled as aforesaid and a check payable to the holder in the amount of any cash amounts payable as the result of a conversion into fractional shares of Common Stock plus any declared and unpaid dividends. Such conversion shall be deemed to have been made immediately prior to the close of business on the date of such surrender of the shares of the Preferred to be converted, or in the case of automatic conversion, on the Public Offering Closing Date or the effective date of such written consent, as the case may be, and the person or persons entitled to receive the shares of Common Stock issuable upon such conversion shall be treated for all purposes as the record holder or holders of such shares of Common Stock on such date.

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(d) Adjustments To Conversion Price or Conversion Ratio.

(i) Original Issue Date. For purposes of this Section 4(d), “Original Issue Date” shall mean the date on which the first share of Series G Preferred was first issued.

(ii) Adjustments for Subdivisions or Combinations of or Stock Dividends on Common Stock. In the event the outstanding shares of Common Stock shall be subdivided (by stock split or otherwise), into a greater number of shares of Common Stock without a corresponding subdivision of Preferred Stock, or the Company at any time or from time to time after the Original Issue Date shall declare or pay any dividend on the Common Stock payable in Common Stock without a corresponding dividend on the Preferred Stock, the applicable Conversion Rate then in effect for each outstanding series of Preferred shall, concurrently with the effectiveness of such subdivision or stock dividend, be proportionately increased (by virtue of an appropriate decrease in the applicable Conversion Price) based on the ratio of (A) the number of shares of Common Stock outstanding immediately after such subdivision or stock dividend to (B) the number of shares of Common Stock outstanding immediately prior to such subdivision or stock dividend. If the Company fixes a record date to determine which holders of Common Stock are entitled to receive such dividend or subdivision, the Conversion Rate (and the Conversion Price) shall be fixed as of the close of business on such record date and the number of shares of Common Stock shall be calculated immediately prior to the close of business on such date. If such record date is fixed and such dividend is not fully paid or if such subdivision is not fully made on the date fixed therefor, the Conversion Rate (and Conversion Price) shall be recomputed accordingly as of the close of business on such record date and thereafter the Conversion Rate (and Conversion Price) shall be adjusted pursuant to this Section 4(d)(ii) to reflect the actual payment of such dividend or completion of such subdivision. In the event the outstanding shares of Common Stock shall be combined or consolidated, by reclassification or otherwise, into a lesser number of shares of Common Stock without a corresponding combination of Preferred Stock, the applicable Conversion Rate then in effect for each outstanding series of Preferred shall, concurrently with the effectiveness of such combination or consolidation, be proportionately decreased (by virtue of an appropriate increase in the applicable Conversion Price) on the same basis.

(iii) Adjustments for Other Distributions. In the event the Company at any time or from time to time makes, or fixes a record date for the determination of holders of Common Stock entitled to receive, any distribution payable in (A) securities of the Company or other entities (other than shares of Common Stock and other than as otherwise adjusted in this Section 4 or as otherwise provided in Section 1), (B) evidences of indebtedness issued by the Company or other persons, or (C) assets (excluding cash dividends) or options to purchase or rights to subscribe for Common Stock, or securities by their terms convertible into or exchangeable for Common Stock, then and in each such event provision shall be made so that the holders of each series of Preferred shall receive upon conversion thereof, in addition to the number of shares of Common Stock receivable thereupon, the amount of such distribution which they would have received had their Preferred been converted into Common Stock on the date of such event and had they thereafter, during the period from the date of such event to and including the date of conversion, retained such securities receivable by them as aforesaid during such period, subject to all other applicable adjustments called for during such period under this Section 4 with respect to the rights of the holders of each series of Preferred.

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(iv) Adjustments for Recapitalization, Reclassification, Exchange and Substitution. If at any time or from time to time the Common Stock issuable upon conversion of the Preferred shall be changed into the same or a different number of shares of any other class or classes of stock, whether by recapitalization, capital reorganization, reclassification or otherwise (other than a subdivision, combination of shares or merger or sale of assets transaction provided for above or in Section 2(b)), the Conversion Rate of any series of Preferred then in effect shall, concurrently with the effectiveness of such recapitalization, reorganization or reclassification, be proportionately adjusted (by virtue of a proportionate adjustment of the applicable Conversion Price) such that such series of Preferred shall be convertible into, in lieu of the number of shares of Common Stock which the holders thereof would otherwise have been entitled to receive, a number of shares of such other class or classes of stock equivalent to the number of shares of Common Stock that would have been subject to receipt by the holders upon conversion of such series of Preferred immediately before that change. In addition, to the extent applicable in any reorganization or recapitalization, provision shall be made so that the holders of any series of Preferred shall thereafter be entitled to receive upon conversion of such series of Preferred the number of shares of stock or other securities or property of the Company or otherwise, to which a holder of Common Stock deliverable upon conversion would have been entitled on such reorganization or recapitalization.

(e) No Impairment. The Company will not, by amendment of its Certificate of Incorporation or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms to be observed or performed hereunder by the Company, but will at all times in good faith assist in the carrying out of all the provisions of this Section 4 and in the taking of all such action as may be necessary or appropriate in order to protect the conversion rights of the holders of the Preferred against impairment. Notwithstanding the foregoing, nothing in this Section 4(e) shall prohibit the Company from amending its Certificate of Incorporation with the requisite consent of its stockholders and the board of directors.

(f) Certificate as to Adjustments. Upon the occurrence of each adjustment or readjustment of the Conversion Price or Conversion Rate of any series of Preferred pursuant to this Section 4, the Company at its expense shall promptly compute such adjustment or readjustment in accordance with the terms hereof and furnish to each holder of Preferred a certificate setting forth such adjustment or readjustment and showing in detail the facts upon which such adjustment or readjustment is based. The Company shall, upon the written request at any time of any holder of Preferred, furnish or cause to be furnished to such holder a like certificate setting forth (i) such adjustments and readjustments, (ii) the applicable Conversion Price(s) and the Conversion Rate(s) at the time in effect with respect to the shares of Preferred held by such holder, and (iii) the number of shares of Common Stock and the amount, if any, of other property that at the time would be received upon the conversion of the Preferred held by such holder.

(g) Reservation of Stock Issuable Upon Conversion. The Company shall at all times reserve and keep available out of its authorized but unissued shares of Common Stock solely for the purpose of effecting the conversion of the shares of the Preferred such number of its shares of Common Stock as shall from time to time be sufficient to effect the conversion of all outstanding shares of the Preferred; and if at any time the number of authorized but unissued shares of Common Stock shall not be sufficient to effect the conversion of all then-outstanding shares of the Preferred,

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in addition to such other remedies as shall be available to the holder of such Preferred, the Company will take such corporate action as may, in the opinion of counsel, be necessary to increase its authorized but unissued shares of Common Stock to such number of shares as shall be sufficient for such purposes.

(h) Notices of Record Date. In the event that the Company shall propose at any time:

(i) to declare any dividend or distribution upon its Common Stock, whether in cash, property, stock or other securities, whether or not a regular cash dividend and whether or not out of earnings or earned surplus;

(ii) to offer for subscription pro rata to the holders of any class or series of its stock any additional shares of stock of any class or series or other rights;

(iii) to effect any reclassification or recapitalization of its Common Stock outstanding involving a change in the Common Stock; or

(iv) to merge or consolidate with or into any other corporation, or sell, lease or convey all or substantially all its property or business, or to liquidate, dissolve or wind up; then, in connection with each such event, the Company shall send to the holders of the Preferred:

(A) in the case of the matters referred to in (i) and (ii) above, at least 10 days’ prior written notice of the date on which a record shall be taken for such dividend, distribution or subscription rights (and specifying the date on which the holders of Common Stock shall be entitled thereto and the amount and character of such dividend, distribution or right); and

(B) in the case of the matters referred to in (iii) and (iv) above, at least 10 days’ prior written notice of the date when the same shall take place (and specifying the date on which the holders of Common Stock shall be entitled to exchange their Common Stock for securities or other property deliverable upon the occurrence of such event or the record date for the determination of such holders if such record date is earlier, and notice shall be provided prior to such record date).

Each such written notice shall be delivered personally or given by first class mail, postage prepaid, addressed to the holders of the Preferred at the address for each such holder as shown on the books of the Company.

5. Covenants.

(a) In addition to any other rights provided by law, so long as any shares of the Preferred shall be outstanding, the Company shall not (directly or indirectly, by merger, reclassification or otherwise), without first obtaining the affirmative vote or written consent of the holders of not less than 51% of the then-outstanding shares of Preferred (such Preferred voting or acting by written consent as a single class on an as-converted basis):

(i) amend or repeal any provision of, or add any provision to, the Company’s Certificate of Incorporation if such action would (i) alter or change the preferences, rights, privileges, or powers of, or the restrictions provided for the benefit of, any series of Preferred; or (ii) increase or decrease the authorized number of shares of any series of Preferred or Common Stock.

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(ii) create or issue any security having any preferences, rights, powers, or restrictions provided for its benefit that are senior to, or on parity with, the preferences, rights, or powers of, or restrictions provided for the benefit of, any class or series of the Preferred;

(iii) amend or repeal any provision of, or add any provision to, the Company’s Bylaws;

(iv) pay or declare any dividend on any shares of Common Stock or apply any of its assets to the redemption, retirement, purchase or acquisition directly or indirectly, through subsidiaries or otherwise, of any shares of capital stock or other securities, except for repurchases of Common Stock from employees, directors, or consultants of the Company upon termination of employment or association pursuant to the terms of agreements providing for the repurchase of such shares at cost entered into with such employees, directors, or consultants, provided that such agreements have been approved by the Board;

(v) enter into any transaction involving the offer of the right to acquire securities of the Company to all, but not less than all, of the security holders of the Company or grant preemptive rights to any party to acquire the Company’s securities;

(vi) enter into any transaction involving the transfer of Company assets to its stockholders based on their status as stockholders;

(vii) liquidate or dissolve;

(viii) enter into any transaction or series of related transactions (i) deemed to be a Liquidation, as defined in Section 2(b), or (ii) that otherwise results in a change in voting control of the Company; or

(ix) increase or decrease the number of authorized directors of the Company.

(b) In addition to any other rights provided by law, so long as any shares of the Series D Preferred shall be outstanding, the Company shall not (directly or indirectly, by merger, reclassification or otherwise) amend or repeal the proviso set forth in Section 4(b)(ii) in a manner that adversely affects the Series D Preferred without the prior written consent of the holders of a majority of the then-outstanding shares of the Series D Preferred, voting together as a separate class, in addition to the written consent of the then-outstanding Preferred otherwise required pursuant to Section 5(a)(i).

(c) In addition to any other rights provided by law, so long as any shares of the Series E Preferred shall be outstanding, the Company shall not (directly or indirectly, by merger,

-11-

reclassification or otherwise) amend or repeal Section 4(b)(iii) without the prior written consent of the holders of a majority of the then-outstanding shares of the Series E Preferred, voting together as a separate class, in addition to the written consent of the then-outstanding Preferred otherwise required pursuant to Section 5(a)(i).

(d) In addition to any other rights provided by law, so long as any shares of the Series F Preferred shall be outstanding, the Company shall not (directly or indirectly, by merger, reclassification or otherwise) amend or repeal the proviso set forth in Section 4(b)(ii) in a manner that adversely affects the Series F Preferred without the prior written consent of the holders of a majority of the then-outstanding shares of the Series F Preferred, voting together as a separate class, in addition to the written consent of the then-outstanding Preferred otherwise required pursuant to Section 5(a)(i).

(e) In addition to any other rights provided by law, so long as any shares of the Series G Preferred shall be outstanding, the Company shall not (directly or indirectly, by merger, reclassification or otherwise) amend or repeal the proviso set forth in Section 4(b)(ii) in a manner that adversely affects the Series G Preferred without the prior written consent of the holders of a majority of the then-outstanding shares of the Series G Preferred, voting together as a separate class, in addition to the written consent of the then-outstanding Preferred otherwise required pursuant to Section 5(a)(i).

(f) In addition to any other rights provided by law, so long as any shares of Preferred shall be outstanding, the Company shall not, without first obtaining the affirmative vote or written consent of the holders of a majority of the shares of the adversely affected series of Preferred (the “Series Protective Vote”):

(i) effect any amendment to the Company’s Certificate of Incorporation that would change the rights, preferences and privileges of the shares of one or more series of Preferred so as to adversely affect them but that would not so affect the entire class; provided, that any change to the dividend preference, Liquidation Preference, Conversion Price or Conversion Rate that adversely affects each series of Preferred on a pro rata basis in proportion to their respective per share dividend preference, Liquidation Preference, Conversion Price or Conversion Rate shall be deemed to “so affect the entire class” and shall only require a vote or written consent of the holders of a majority of the shares of all Preferred, voting as one class, and any such change that is not pro rata as to all series of Preferred shall be deemed to not “so affect the entire class” and shall require the affirmative vote or written consent of the holders of a majority of the shares of each such adversely affected series separately (by way of non-exclusive example only, a reduction of 10% of the per share Liquidation Preference for each series of Preferred shall be deemed to “so affect the entire class” and shall only require a vote of the holders of a majority of the shares of all Preferred, voting together as a single class; and a $0.25 reduction of the Liquidation Preference of each series of Preferred, because it is not a pro rata reduction, shall be deemed to not “so affect the entire class” and shall require the affirmative vote or written consent of the holders of a majority of the shares of each such series separately);

(ii) effect any amendment to the Company’s Certificate of Incorporation that would effect any change to the rights, preferences and privileges of any other class or series of

-12-

the Company’s capital stock that is adverse to the unchanged series of Preferred (by way of nonexclusive example only, a pro rata increase in the Liquidation Preference of the Series A Preferred, Series B Preferred, Series C Preferred, Series D Preferred, Series E Preferred and Series F Preferred without a corresponding pro rata increase in the Liquidation Preference of the Series G Preferred shall be deemed “adverse” with respect to the Series G Preferred); or

(iii) redeem, repurchase or otherwise acquire one or more shares of any series of Preferred in a manner that is not pro rata with all of the Preferred (based on the respective Liquidation Preferences for each outstanding series).

Notwithstanding anything to the contrary in this Section 5(f) and to the fullest extent permitted by law, MLC Investments Limited as trustee for the MLC Vintage Year Trust 2009 (“MLC”) and any affiliate of MLC shall, for so long as it or they remain holders of shares of Series F Preferred, not have any consent right or voting right with respect to a Series Protective Vote contemplated by subsection (i) or (ii) above, unless the proposed amendment contemplated by subsection (i) or (ii) would significantly and adversely affect the rights, preferences and privileges of the Series F Preferred. The foregoing sentence shall apply to any and all assignees and transferees of shares held by MLC and any and all assignees and transferees of shares held by any affiliate of MLC and their subsequent assignees and transferees.

6. Voting Rights.

(a) General. Holders of the Preferred shall have full voting rights and shall be entitled to vote, together with the holders of Common Stock, with respect to any questions upon which holders of Common Stock have the right to vote. Except as otherwise required by law or by Section 5 hereof, the holder of each share of Common Stock issued and outstanding shall have one vote, and the holder of each share of Preferred shall be entitled to the number of votes equal to the number of shares of Common Stock into which such share of Preferred could be converted at the record date for determination of the stockholders entitled to vote on such matters, or, if no such record date is established, at the date such vote is taken or any written consent of stockholders is solicited, such votes to be counted together with all other shares of stock of the Company having general voting power and not separately as a class. Fractional votes by the holders of the Preferred shall not, however, be permitted and any fractional voting rights shall (after aggregating all shares into which shares of Preferred held by each holder could be converted) be rounded to the nearest whole number. Holders of Common Stock and Preferred shall be entitled to notice of any stockholders’ meeting in accordance with the Bylaws of the Company.

(b) Board of Directors.

(i) Series A Representative. For so long as at least 4,500,000 shares (subject to adjustment for stock splits, stock dividends or distributions, recapitalizations, and similar events with respect to the Series A Preferred) of Series A Preferred remain outstanding, the holders of the Series A Preferred shall be entitled, voting as a separate class, to elect a single director at each meeting for the election of directors or by written consent without a meeting for this purpose.

-13-

(ii) Series B Representative. For so long as at least 4,500,000 shares (subject to adjustment for stock splits, stock dividends or distributions, recapitalizations, and similar events with respect to the Series B Preferred) of Series B Preferred remain outstanding, the holders of the Series B Preferred shall be entitled, voting as a separate class, to elect a single director at each meeting for the election of directors or by written consent without a meeting for this purpose.

(iii) Series E Representative. For so long as at least 3,180,662 shares (subject to adjustment for stock splits, stock dividends or distributions, recapitalizations, and similar events with respect to the Series E Preferred) of Series E Preferred remain outstanding, the holders of the Series E Preferred shall be entitled, voting as a separate class, to elect a single director at each meeting for the election of directors or by written consent without a meeting for this purpose.

(iv) Series G Representative. For so long as at least 2,900,000 shares (subject to adjustment for stock splits, stock dividends or distributions, recapitalizations, and similar events with respect to the Series G Preferred) of Series G Preferred remain outstanding, the holders of the Series G Preferred shall be entitled, voting as a separate class, to elect a single director at each meeting for the election of directors or by written consent without a meeting for this purpose.

(v) Mutual Directors. The holders of the Common Stock and the Preferred voting together as a single class shall be entitled to elect two directors at each meeting for the election of directors or by written consent without a meeting for this purpose; provided, however, that each director elected pursuant to this section must receive the affirmative vote of at least (A) a majority of the holders of the Common Stock and (B) a majority of the holders of the Preferred.

(vi) Remaining Directors. The remaining director(s), if any, shall be elected by the holders of the Preferred and the Common Stock, voting together as a single class at each meeting for the election of directors or by written consent without a meeting for this purpose.

(vii) Quorum; Required Vote.

(A) Quorum. At any meeting held for the purpose of electing directors, the presence in person or by proxy (A) of the holders of a majority of the shares of the Series A Preferred then outstanding shall constitute a quorum for the election of the director to be elected solely by the holders of the Series A Preferred; (B) of the holders of a majority of the shares of the Series B Preferred then outstanding shall constitute a quorum for the election of the director to be elected solely by the holders of the Series B Preferred; (C) of the holders of a majority of the shares of the Series E Preferred then outstanding shall constitute a quorum for the election of the director to be elected solely by the holders of the Series E Preferred; (D) of the holders of a majority of the shares of the Series G Preferred then outstanding shall constitute a quorum for the election of the director to be elected solely by the holders of the Series G Preferred; and (E) of the holders of a majority of the voting power of all the then-outstanding shares of Preferred and of the holders of a majority of the then-outstanding shares of Common Stock shall constitute a quorum for the election of the directors to be elected jointly by the holders of the Preferred Stock and the Common Stock.

(B) Required Vote. With respect to the election of any director or directors by the holders of the outstanding shares of a specified series, class or classes of stock given

-14-

the right to elect such director or directors pursuant to Section 6(b)(i), (ii), (iii), (iv), (v) or (vi) above (the “Specified Stock”), that candidate or those candidates (as applicable) shall be elected who either: (i) in the case of any such vote conducted at a meeting of the holders of such Specified Stock, receive the highest number of affirmative votes (on an as-converted basis) of the outstanding shares of such Specified Stock, up to the number of directors to be elected by such Specified Stock; or (ii) in the case of any such vote taken by written consent without a meeting, are elected by the written consent of the holders of a majority of outstanding shares of such Specified Stock.

(C) Vacancy. If there shall be any vacancy in the office of a director elected or to be elected by the holders of any Specified Stock, then a director to hold office for the unexpired term of such directorship shall be elected by the required vote of the holders of the shares of such Specified Stock specified in Section 6(b)(vii)(B) above that are entitled to elect such director.

(D) Removal. Subject to Section 141 (k) of the Delaware General Corporation Law, any director who shall have been elected to the Board by the holders of any Specified Stock, or by any director or directors elected by holders of any Specified Stock as provided in Section 6(b)(vii)(C), may be removed during his or her term of office, without cause, by, and only by, the affirmative vote of shares representing a majority of the voting power, on an as-converted basis, of all the outstanding shares of such Specified Stock entitled to vote, given either at a meeting of such stockholders duly called for that purpose or pursuant to a written consent of stockholders without a meeting, and any vacancy created by such removal may be filled only in the manner provided in Section 6(b)(vii)(C).

(E) Procedures. Any meeting of the holders of any Specified Stock, and any action taken by the holders of any Specified Stock by written consent without a meeting, in order to elect or remove a director under this Section 6(b), shall be held in accordance with the procedures and provisions of the Corporation’s Bylaws, the Delaware General Corporation Law and applicable law regarding stockholder meetings and stockholder actions by written consent, as such are then in effect (including but not limited to procedures and provisions for determining the record date for shares entitled to vote).

7. No Reissuance of Preferred Stock. No share or shares of Preferred Stock acquired by the Company by reason of redemption, repurchase, conversion or otherwise shall be reissued, and all such shares shall be cancelled, retired and eliminated from the shares that the Corporation shall be authorized to issue.

ARTICLE V

The Company is to have perpetual existence.

ARTICLE VI

Elections of directors need not be by written ballot unless a stockholder demands election by written ballot at the meeting and before voting begins or unless the Bylaws of the Company shall so provide.

-15-

ARTICLE VII

Subject to Section 5 of Article IV, the number of directors that constitute the whole Board of the Company shall be designated in the Bylaws of the Company.

ARTICLE VIII

Subject to Section 5 of Article IV, in furtherance and not in limitation of the powers conferred by statute, the Board is expressly authorized to make, alter, amend or repeal the Bylaws of the Company.

ARTICLE IX

1. To the fullest extent permitted by the General Corporation Law of the State of Delaware, as the same exists or as may hereafter be amended, a director of the Company shall not be personally liable to the Company or its stockholders for monetary damages for breach of fiduciary duty as a director.

2. The Company may indemnify to the fullest extent permitted by law any person made or threatened to be made a party to an action or proceeding, whether criminal, civil, administrative or investigative, by reason of the fact that he, his testator or intestate is or was a director, officer or employee of the Company or any predecessor of the Company, or serves or served at any other enterprise as a director, officer or employee at the request of the Company or any predecessor to the Company.

3. Neither any amendment nor repeal of this Article IX, nor the adoption of any provision of the Company’s Certificate of Incorporation inconsistent with this Article IX, shall eliminate or reduce the effect of this Article IX, in respect of any matter occurring, or any action or proceeding accruing or arising or that, but for this Article IX, would accrue or arise, prior to such amendment, repeal or adoption of an inconsistent provision.

ARTICLE X

Meetings of stockholders may be held within or without the State of Delaware, as the Bylaws may provide. The books of the Company may be kept (subject to any provision contained in the statutes) outside of the State of Delaware at such place or places as may be designated from time to time by the Board of Directors or in the Bylaws of the Company.

ARTICLE XI

Advance notice of new business and stockholder nominations for the election of directors shall be given in the manner and to the extent provided in the Bylaws of the Company.

ARTICLE XII

Stockholders shall be entitled to cumulative voting rights in the election of directors as set forth in this Article XII and the Bylaws of the Company, but only if and to the extent cumulative

-16-

voting rights are required under Section 2115(b) of the California Corporations Code. Subject to such limitation, at all elections of directors of the Company, each holder of stock or of any class or classes or of a series or series thereof shall be entitled to as many votes as shall equal the number of votes which (except for this provision as to cumulative voting) such stockholder would be entitled to cast for the election of directors with respect to such stockholder’s shares of stock multiplied by the number of directors to be elected, and such stockholder may cast all of such votes for a single director or may distribute them among the number of directors to be voted for, or for any two or more of them as such stockholder may see fit. At such time as cumulative voting rights are not required under Section 2115 of the California Corporations Code, this Article XII shall no longer be effective and may be deleted herefrom upon any restatement of this Certificate of Incorporation.

ARTICLE XIII

Except as specifically provided herein, the Company reserves the right to amend, alter, change or repeal any provision contained in this Certificate of Incorporation, in the manner now or hereafter prescribed by statute, and all rights conferred upon stockholders herein are granted subject to this reservation.

[Remainder of Page Intentionally Left Blank]

-17-

IN WITNESS WHEREOF, the Company has caused this Tenth Amended and Restated Certificate of Incorporation to be signed by an authorized officer of the Company, effective as of June 29, 2011.

BLOOM ENERGY CORPORATION
By:	/s/ K.R. Sridhar
	K.R. Sridhar, President

-18-

Delaware	PAGE    1
The First State

I, JEFFREY W. BULLOCK, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT OF “BLOOM ENERGY CORPORATION”, FILED IN THIS OFFICE ON THE SEVENTH DAY OF MAY, A.D. 2012, AT 1:44 O’CLOCK P.M.

A FILED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE COUNTY RECORDER OF DEEDS.

3345681    8100 120520774		Jeffrey W. Bullock, Secretary of State AUTHENTICATION: 9554071 DATE: 05-07-12

You may verify this certificate online

at corp.delaware.gov/authver.shtml

State of Delaware

Secretary of State

Division of Corporations

Delivered 01:49 PM 05/07/2012

FILED 01:44 PM 05/07/2012

SRV 120520774 - 3345681 FILE

CERTIFICATE OF AMENDMENT TO THE

TENTH AMENDED AND RESTATED CERTIFICATE OF INCORPORATION OF

BLOOM ENERGY CORPORATION

Bloom Energy Corporation, a corporation organized and existing under the laws of the State of Delaware, hereby certifies as follows:

1. The name of the corporation is Bloom Energy Corporation. The corporation was originally incorporated under the name of Ion America Corporation. The original Certificate of Incorporation of the corporation was filed with the Secretary of State of the State of Delaware on January 18, 2001.

2. This Certificate of Amendment to the Tenth Amended and Restated Certificate of Incorporation has been duly adopted in accordance with the applicable provisions of Section 242 and Section 228 of the General Corporation Law of the State of Delaware by the Board of Directors and the stockholders of the corporation.

3. Pursuant to Section 242 of the General Corporation Law of the State of Delaware, this Certificate of Amendment amends the provisions of the corporation’s Tenth Amended and Restated Certificate of Incorporation as set forth herein.

4. The first paragraph of Article IV of the corporation’s Tenth Amended and Restated Certificate of Incorporation is hereby amended to read in its entirety as follows:

The Company is authorized to issue two classes of stock, designated “Common Stock” and “Preferred Stock,” respectively. The total number of shares that the Company is authorized to issue is 209,662,175 shares, $0.0001 par value. The number of shares of Common Stock (“Common”) that the Company is authorized to issue is 116,272,000 shares, and the number of shares of Preferred Stock (“Preferred”) that the Company is authorized to issue is 93,390,175 shares. Of the authorized shares of Preferred, 14,061,152 shares shall be designated “Series A Preferred,” 11,803,284 shares shall be designated “Series B Preferred,” 8,968,604 shall be designated “Series C Preferred,” 9,665,746 shares shall be designated “Series D Preferred,” 15,811,034 shares shall be designated “Series E Preferred,” 21,040,297 shares shall be designated “Series F Preferred” and 12,040,058 shares shall be designated “Series G Preferred.”

IN WITNESS WHEREOF, the corporation has caused this Certificate of Amendment to be signed by K.R. Sridhar, its President, effective as of May 7, 2012.

BLOOM ENERGY CORPORATION
By:	/s/ K.R. Sridhar
	Name:	K.R. Sridhar
	Title:	President

1

State of Delaware

Secretary of State

Division of Corporations

Delivered 03:27 PM 03/07/2013

FILED 03:24 PM 03/07/2013

SRV 130288220 - 3345681 FILE

CERTIFICATE OF AMENDMENT

OF TENTH AMENDED AND RESTATED CERTIFICATE OF INCORPORATION

OF BLOOM ENERGY CORPORATION

Bloom Energy Corporation, a corporation organized and existing under the laws of the State of Delaware, hereby certifies as follows:

1. The name of the corporation is Bloom Energy Corporation. The corporation was originally incorporated under the name of Ion America Corporation. The original Certificate of Incorporation of the corporation was filed with the Secretary of State of the State of Delaware on January 18, 2001.

2. This Certificate of Amendment of Tenth Amended and Restated Certificate of Incorporation has been duly adopted in accordance with the applicable provisions of Section 242 and Section 228 of the General Corporation Law of the State of Delaware by the Board of Directors and the stockholders of the corporation.

3. Pursuant to Section 242 of the General Corporation Law of the State of Delaware, this Certificate of Amendment amends the provisions of the corporation’s Tenth Amended and Restated Certificate of Incorporation as set forth herein.

4. The first paragraph of Article IV of the corporation’s Tenth Amended and Restated Certificate of Incorporation is hereby amended to read in its entirety as follows:

“The Company is authorized to issue two classes of stock, designated “Common Stock” and “Preferred Stock,” respectively. The total number of shares that the Company is authorized to issue is 223,308,157 shares, $0.0001 par value. The number of shares of Common Stock (“Common”) that the Company is authorized to issue is 123,095,000 shares, and the number of shares of Preferred Stock (“Preferred”) that the Company is authorized to issue is 100,213,157 shares. Of the authorized shares of Preferred, 14,061,152 shares shall be designated “Series A Preferred,” 11,803,284 shares shall be designated “Series B Preferred,” 8,968,604 shall be designated “Series C Preferred,” 9,665,746 shares shall be designated “Series D Preferred,” 15,811,034 shares shall be designated “Series E Preferred,” and 22,040,297 shares shall be designated “Series F Preferred,” and 17,863,040 shares shall be designated “Series G Preferred.”

*   *   *   *   *   *

IN WITNESS WHEREOF, the corporation has caused this Certificate of Amendment to be signed by K.R. Sridhar, its President, effective as of March 7, 2013.

BLOOM ENERGY CORPORATION
By:	/s/ K.R. Sridhar
	K.R. Sridhar, President

Delaware	PAGE    1
The First State

I, JEFFREY W. BULLOCK, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT OF “BLOOM ENERGY CORPORATION”, FILED IN THIS OFFICE ON THE TWENTIETH DAY OF MAY, A.D. 2013, AT 8 O’CLOCK A.M.

A FILED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE COUNTY RECORDER OF DEEDS.

3345681    8100 130609396		Jeffrey W. Bullock, Secretary of State AUTHENTICATION: 0443508 DATE: 05-20-13

You may verify this certificate online

at corp.delaware.gov/authver.shtml

State of Delaware

Secretary of State

Division of Corporations

Delivered 07:59 AM 05/20/2013

FILED 08:00 AM 05/20/2013

SRV 130609396 - 3345681 FILE

CERTIFICATE OF AMENDMENT

OF TENTH AMENDED AND RESTATED CERTIFICATE OF INCORPORATION

OF BLOOM ENERGY CORPORATION

Bloom Energy Corporation, a corporation organized and existing under the laws of the State of Delaware, hereby certifies as follows:

1. The name of the corporation is Bloom Energy Corporation. The corporation was originally incorporated under the name of Ion America Corporation. The original Certificate of Incorporation of the corporation was filed with the Secretary of State of the State of Delaware on January 18, 2001.

2. This Certificate of Amendment of Tenth Amended and Restated Certificate of Incorporation has been duly adopted in accordance with the applicable provisions of Section 242 and Section 228 of the General Corporation Law of the State of Delaware by the Board of Directors and the stockholders of the corporation.

3. Pursuant to Section 242 of the General Corporation Law of the State of Delaware, this Certificate of Amendment amends the provisions of the corporation’s Tenth Amended and Restated Certificate of Incorporation as set forth herein.

4. The first paragraph of Article IV of the corporation’s Tenth Amended and Restated Certificate of Incorporation is hereby amended to read in its entirety as follows:

“The Company is authorized to issue two classes of stock, designated “Common Stock” and “Preferred Stock,” respectively. The total number of shares that the Company is authorized to issue is 238,401,325 shares, $0.0001 par value. The number of shares of Common Stock (“Common”) that the Company is authorized to issue is 133,141,584 shares, and the number of shares of Preferred Stock (“Preferred”) that the Company is authorized to issue is 105,259,741 shares. Of the authorized shares of Preferred, 14,061,152 shares shall be designated “Series A Preferred,” 11,803,284 shares shall be designated “Series B Preferred,” 8,968,604 shall be designated “Series C Preferred,” 9,665,746 shares shall be designated “Series D Preferred,” 15,811,034 shares shall be designated “Series E Preferred,” and 22,040,297 shares shall be designated “Series F Preferred,” and 22,909,624 shares shall be designated “Series G Preferred.”

*   *   *   *   *   *

IN WITNESS WHEREOF, the corporation has caused this Certificate of Amendment to be signed by K.R. Sridhar, its President, effective as of May 20, 2013.

BLOOM ENERGY CORPORATION
By:	/s/ K.R. Sridhar
	K.R. Sridhar, President

State of Delaware

Secretary of State

Division of Corporations

Delivered 03:45 PM 12/18/2013

FILED 03:29 PM 12/18/2013

SRV 131445590 - 3345681 FILE

CERTIFICATE OF AMENDMENT

OF TENTH AMENDED AND RESTATED CERTIFICATE OF INCORPORATION

OF BLOOM ENERGY CORPORATION

Bloom Energy Corporation, a corporation organized and existing under the laws of the State of Delaware, hereby certifies as follows:

1. The name of the corporation is Bloom Energy Corporation. The corporation was originally incorporated under the name of Ion America Corporation. The original Certificate of Incorporation of the corporation was filed with the Secretary of State of the State of Delaware on January 18, 2001.

2. This Certificate of Amendment of Tenth Amended and Restated Certificate of Incorporation has been duly adopted in accordance with the applicable provisions of Section 242 and Section 228 of the General Corporation Law of the State of Delaware by the Board of Directors and the stockholders of the corporation.

3. Pursuant to Section 242 of the General Corporation Law of the State of Delaware, this Certificate of Amendment amends the provisions of the corporation’s Tenth Amended and Restated Certificate of Incorporation as set forth herein.

4. The first paragraph of Article IV of the corporation’s Tenth Amended and Restated Certificate of Incorporation is hereby amended to read in its entirety as follows:

“The Company is authorized to issue two classes of stock, designated “Common Stock” and “Preferred Stock,” respectively. The total number of shares that the Company is authorized to issue is 250,047,289 shares, $0.0001 par value. The number of shares of Common Stock (“Common”) that the Company is authorized to issue is 138,964,566 shares, and the number of shares of Preferred Stock (“Preferred”) that the Company is authorized to issue is 111,082,723 shares. Of the authorized shares of Preferred, 14,061,152 shares shall be designated “Series A Preferred,” 11,803,284 shares shall be designated “Series B Preferred,” 8,968,604 shall be designated “Series C Preferred,” 9,665,746 shares shall be designated “Series D Preferred,” 15,811,034 shares shall be designated “Series E Preferred,” and 22,040,297 shares shall be designated “Series F Preferred,” and 28,732,606 shares shall be designated “Series G Preferred.”

*   *   *   *   *   *

IN WITNESS WHEREOF, the corporation has caused this Certificate of Amendment to be signed by K.R. Sridhar, its President, effective as of December 18, 2013.

BLOOM ENERGY CORPORATION
By:	/s/ K.R. Sridhar
	K.R. Sridhar, President

Delaware	PAGE    1
The First State

I, JEFFREY W. BULLOCK, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT OF “BLOOM ENERGY CORPORATION”, FILED IN THIS OFFICE ON THE TWENTY-SIXTH DAY OF NOVEMBER, A.D. 2014, AT 2:26 O’CLOCK P.M.

A FILED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE COUNTY RECORDER OF DEEDS.

3345681    8100 141462124		Jeffrey W. Bullock, Secretary of State AUTHENTICATION: 1904040 DATE: 11-26-14

You may verify this certificate online

at corp.delaware.gov/authver.shtml

State of Delaware

Secretary of State

Division of Corporations

Delivered 02:26 PM 11/26/2014

FILED 02:26 PM 11/26/2014

SRV 141462124 - 3345681 FILE

CERTIFICATE OF AMENDMENT

OF TENTH AMENDED AND RESTATED CERTIFICATE OF INCORPORATION

OF BLOOM ENERGY CORPORATION

Bloom Energy Corporation, a corporation organized and existing under the laws of the State of Delaware, hereby certifies as follows:

1. The name of the corporation is Bloom Energy Corporation. The corporation was originally incorporated under the name of Ion America Corporation. The original Certificate of Incorporation of the corporation was filed with the Secretary of State of the State of Delaware on January 18, 2001.

2. This Certificate of Amendment of Tenth Amended and Restated Certificate of Incorporation has been duly adopted in accordance with the applicable provisions of Section 242 and Section 228 of the General Corporation Law of the State of Delaware by the Board of Directors and the stockholders of the corporation.

3. Pursuant to Section 242 of the General Corporation Law of the State of Delaware, this Certificate of Amendment amends the provisions of the corporation’s Tenth Amended and Restated Certificate of Incorporation as set forth herein.

4. The first paragraph of Article IV of the corporation’s Tenth Amended and Restated Certificate of Incorporation is hereby amended to read in its entirety as follows:

“The Company is authorized to issue two classes of stock, designated “Common Stock” and “Preferred Stock,” respectively. The total number of shares that the Company is authorized to issue is 281,692,417 shares, $0.0001 par value. The number of shares of Common Stock (“Common”) that the Company is authorized to issue is 161,000,000 shares, and the number of shares of Preferred Stock (“Preferred”) that the Company is authorized to issue is 120,692,417 shares. Of the authorized shares of Preferred, 14,061,152 shares shall be designated “Series A Preferred,” 11,803,284 shares shall be designated “Series B Preferred,” 8,968,604 shall be designated “Series C Preferred,” 9,665,746 shares shall be designated “Series D Preferred,” 14,229,597 shares shall be designated “Series E Preferred,” and 21,895,873 shares shall be designated “Series F Preferred,” and 40,068,161 shares shall be designated “Series G Preferred.”

* - * - * - * - * - *

IN WITNESS WHEREOF, the corporation has caused this Certificate of Amendment to be signed by K.R. Sridhar, its President, effective as of November 26, 2014.

BLOOM ENERGY CORPORATION
By:	/s/ K.R. Sridhar
	K.R. Sridhar, President

Delaware	Page 1
The First State

I, JEFFREY W. BULLOCK, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT OF “BLOOM ENERGY CORPORATION”, FILED IN THIS OFFICE ON THE SEVENTH DAY OF DECEMBER, A.D. 2015, AT 6:02 O’CLOCK P.M.

A FILED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE COUNTY RECORDER OF DEEDS.

		Jeffrey W. Bullock, Secretary of State
3345681    8100		Authentication: 10564375
SR# 20151233633		Date: 12-07-15
You may verify this certificate online at corp.delaware.gov/authver.shtml

State of Delaware

Secretary of State

Division of Corporations

Delivered 06:02 PM 12/07/2015

FILED 06:02 PM 12/07/2015

SR 20151233633 - File Number 3345681

CERTIFICATE OF AMENDMENT

OF TENTH AMENDED AND RESTATED CERTIFICATE OF INCORPORATION

OF BLOOM ENERGY CORPORATION

Bloom Energy Corporation, a corporation organized and existing under the laws of the State of Delaware, hereby certifies as follows:

1. The name of the corporation is Bloom Energy Corporation. The corporation was originally incorporated under the name of Ion America Corporation. The original Certificate of Incorporation of the corporation was filed with the Secretary of State of the State of Delaware on January 18, 2001.

2. This Certificate of Amendment of Tenth Amended and Restated Certificate of Incorporation has been duly adopted in accordance with the applicable provisions of Section 242 and Section 228 of the General Corporation Law of the State of Delaware by the Board of Directors and the stockholders of the corporation.

3. Pursuant to Section 242 of the General Corporation Law of the State of Delaware, this Certificate of Amendment amends the provisions of the corporation’s Tenth Amended and Restated Certificate of Incorporation as set forth herein.

4. The first paragraph of Article IV of the corporation’s Tenth Amended and Restated Certificate of Incorporation is hereby amended to read in its entirety as follows:

“The Company is authorized to issue two classes of stock, designated “Common Stock” and “Preferred Stock,” respectively. The total number of shares that the Company is authorized to issue is 290,692,417 shares, $0.0001 par value. The number of shares of Common Stock (“Common”) that the Company is authorized to issue is 170,000,000 shares, and the number of shares of Preferred Stock (“Preferred”) that the Company is authorized to issue is 120,692,417 shares. Of the authorized shares of Preferred, 14,061,152 shares shall be designated “Series A Preferred,” 11,803,284 shares shall be designated “Series B Preferred,” 8,968,604 shall be designated “Series C Preferred,” 9,665,746 shares shall be designated “Series D Preferred,” 14,229,597 shares shall be designated “Series E Preferred,” and 21,895,873 shares shall be designated “Series F Preferred,” and 40,068,161 shares shall be designated “Series G Preferred,”

*   *   *   *   *   *

IN WITNESS WHEREOF, the corporation has caused this Certificate of Amendment to be signed by K.R. Sridhar, its President, effective as of December 7, 2015.

BLOOM ENERGY CORPORATION
By:	/s/ K.R. Sridhar
	K.R. Sridhar, President

EX-3

Exhibit 3.4

BYLAWS

OF

BLOOM ENERGY CORPORATION

(a Delaware corporation)

BYLAWS

OF

BLOOM ENERGY CORPORATION

(a Delaware corporation)

ARTICLE I

CORPORATE OFFICES

1.1 REGISTERED OFFICE

The registered office of the corporation shall be fixed in the Certificate of Incorporation of the corporation.

1.2 OTHER OFFICES

The board of directors may at any time establish branch or subordinate offices at any place or places where the corporation is qualified to do business.

ARTICLE II

MEETINGS OF STOCKHOLDERS

2.1 PLACE OF MEETINGS

Meetings of stockholders shall be held at any place within or outside the State of Delaware designated by the board of directors. In the absence of any such designation, stockholders’ meetings shall be held at the registered office of the corporation.

2.2 ANNUAL MEETING

(a) The annual meeting of stockholders shall be held each year on a date and at a time designated by the board of directors. At the meeting, directors shall be elected, and any other proper business may be transacted.

(b) At an annual meeting of the stockholders, only such business shall be conducted as shall have been properly brought before the meeting. To be properly brought before an annual meeting, business must be: (A) specified in the notice of meeting (or any supplement thereto) given by or at the direction of the Board of Directors, (B) otherwise properly brought before the

meeting by or at the direction of the Board of Directors, or (C) otherwise properly brought before the meeting by a stockholder. For business to be properly brought before an annual meeting by a stockholder, the stockholder must have given timely notice thereof in writing to the Secretary of the corporation. To be timely, a stockholder’s notice must be delivered to or mailed and received at the principal executive offices of the corporation not less than one hundred twenty (120) calendar days in advance of the date specified in the corporation’s proxy statement released to stockholders in connection with the previous year’s annual meeting of stockholders; provided, however, that in the event that no annual meeting was held in the previous year or the date of the annual meeting has been changed by more than thirty (30) days from the date contemplated at the time of the previous year’s proxy statement, notice by the stockholder to be timely must be so received a reasonable time before the solicitation is made. A stockholder’s notice to the Secretary shall set forth as to each matter the stockholder proposes to bring before the annual meeting: (i) a brief description of the business desired to be brought before the annual meeting and the reasons for conducting such business at the annual meeting, (ii) the name and address, as they appear on the corporation’s books, of the stockholder proposing such business, (iii) the class and number of shares of the corporation which are beneficially owned by the stockholder, (iv) any material interest of the stockholder in such business and (v) any other information that is required to be provided by the stockholder pursuant to Regulation 14A under the Securities Exchange Act of 1934, as amended (the “1934 Act”), in his capacity as a proponent to a stockholder proposal. Notwithstanding the foregoing, in order to include information with respect to a stockholder proposal in the proxy statement and form of proxy for a stockholder’s meeting, stockholders must provide notice as required by the regulations promulgated under the 1934 Act. Notwithstanding anything in these Bylaws to the contrary, no business shall be conducted at any annual meeting except in accordance with the procedures set forth in this paragraph (b). The chairman of the annual meeting shall, if the facts warrant, determine and declare at the meeting that business was not properly brought before the meeting and in accordance with the provisions of this paragraph (b), and, if he should so determine, he shall so declare at the meeting that any such business not properly brought before the meeting shall not be transacted.

(c) Only persons who are nominated in accordance with the procedures set forth in this paragraph (c) shall be eligible for election as Directors. Nominations of persons for election to the Board of Directors of the corporation may be made at a meeting of stockholders by or at the direction of the Board of Directors or by any stockholder of the corporation entitled to vote in the election of Directors at the meeting who complies with the notice procedures set forth in this paragraph (c). Such nominations, other than those made by or at the direction of the Board of Directors, shall be made pursuant to timely notice in writing to the Secretary of the corporation in accordance with the provisions of paragraph (b) of this Section 2.2. Such stockholder’s notice shall set forth (i) as to each person, if any, whom the stockholder proposes to nominate for election or re-election as a Director: (A) the name, age, business address and residence address of such person, (B) the principal occupation or employment of such person, (C) the class and number of shares of the corporation which are beneficially owned by such person, (D) a description of all arrangements or understandings between the stockholder and each nominee and any other person or persons (naming such person or persons) pursuant to which the nominations are to be made by the stockholder, and (E) any other information relating to such person that is required to be disclosed in solicitations of

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proxies for elections of Directors, or is otherwise required, in each case pursuant to Regulation 14A under the 1934 Act (including without limitation such person’s written consent to being named in the proxy statement, if any, as a nominee and to serving as a Director if elected); and (ii) as to such stockholder giving notice, the information required to be provided pursuant to paragraph (b) of this Section 2.2. At the request of the Board of Directors, any person nominated by a stockholder for election as a Director shall furnish to the Secretary of the corporation that information required to be set forth in the stockholder’s notice of nomination which pertains to the nominee. No person shall be eligible for election as a Director of the corporation unless nominated in accordance with the procedures set forth in this paragraph (c). The chairman of the meeting shall, if the facts warrants, determine and declare at the meeting that a nomination was not made in accordance with the procedures prescribed by these Bylaws, and if he should so determine, he shall so declare at the meeting, and the defective nomination shall be disregarded.

2.3 SPECIAL MEETING

A special meeting of the stockholders may be called at any time by the Board of Directors, or by the chairman of the board, or in the absence of the chairman of the board by the chief executive officer, or by one or more shareholders holding shares in the aggregate entitled to cast not less than ten percent (10%) of the votes at that meeting, but such special meetings may not be called by any other person or persons.

If a special meeting is called by any person or persons other than the board of directors, the request shall be in writing, specifying the time of such meeting and the general nature of the business proposed to be transacted, and shall be delivered personally or sent by registered mail or by telegraphic or other facsimile transmission to the chairman of the board, the president, chief executive officer, or the secretary of the corporation. No business may be transacted at such special meeting otherwise than specified in such notice. The officer receiving the request shall cause notice to be promptly given to the stockholders entitled to vote, in accordance with the provisions of Sections 2.4 and 2.5, that a meeting will be held at the time requested by the person or persons who called the meeting, not less than thirty-five (35) nor more than sixty (60) days after the receipt of the request. If the notice is not given within twenty (20) days after the receipt of the request, the person or persons requesting the meeting may give the notice. Nothing contained in this paragraph of this Section 2.3 shall be construed as limiting, fixing, or affecting the time when a meeting of stockholders called by action of the board of directors may be held.

2.4 NOTICE OF STOCKHOLDERS’ MEETINGS

Except as set forth in Section 2.3, all notices of meetings of stockholders shall be sent or otherwise given in accordance with Section 2.5 of these bylaws not less than ten (10) nor more than sixty (60) days before the date of the meeting. The notice shall specify the place, date, and hour of the meeting and (i) in the case of a special meeting, the general nature of the business to be transacted (no business other than that specified in the notice may be transacted) or (ii) in the case of the annual meeting, those matters which the board of directors, at the time of giving the notice, intends to present for action by the stockholders (but any proper matter may be presented at the meeting for such action). The notice of any meeting at which directors are to be elected shall include the name of any nominee or nominees who, at the time of the notice, the board intends to present for election.

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2.5 MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE

Written notice of any meeting of stockholders shall be given either personally or by first-class mail or by telegraphic or other written communication. Notices not personally delivered shall be sent charges prepaid and shall be addressed to the stockholder at the address of that stockholder appearing on the books of the corporation or given by the shareholder to the corporation for the purpose of notice. If no such address appears on the corporation’s books or is given, notice shall be deemed to have been given if sent to that stockholder by mail or telegraphic or other written communication to the corporation’s principal executive office, or if published at least once in a newspaper of general circulation in the county where that office is located. Notice shall be deemed to have been given at the time when delivered personally or deposited in the mail or sent by telegram or other means of written communication.

If any notice addressed to a stockholder at the address of that stockholder appearing on the books of the corporation is returned to the corporation by the United States Postal Service marked to indicate that the United States Postal Service is unable to deliver the notice to the stockholder at that address, then all future notices or reports shall be deemed to have been duly given without further mailing if the same shall be available to the stockholder on written demand of the stockholder at the principal executive office of the corporation for a period of one (1) year from the date of the giving of the notice.

An affidavit of the mailing or other means of giving any notice of any stockholders’ meeting, executed by the secretary, assistant secretary or any transfer agent of the corporation giving the notice, shall be prima facie evidence of the giving of such notice.

2.6 QUORUM

The presence in person or by proxy of the holders of a majority of the shares entitled to vote thereat constitutes a quorum for the transaction of business at all meetings of stockholders. The stockholders present at a duly called or held meeting at which a quorum is present may continue to do business until adjournment, notwithstanding the withdrawal of enough stockholders to leave less than a quorum, if any action taken (other than adjournment) is approved by at least a majority of the shares required to constitute a quorum.

2.7 ADJOURNED MEETING; NOTICE

Any stockholders’ meeting, annual or special, whether or not a quorum is present, may be adjourned from time to time by the vote of the majority of the shares represented at that meeting, either in person or by proxy. In the absence of a quorum, no other business may be transacted at that meeting except as provided in Section 2.6 of these bylaws.

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When any meeting of stockholders, either annual or special, is adjourned to another time or place, notice need not be given of the adjourned meeting if the time and place are announced at the meeting at which the adjournment is taken. However, if a new record date for the adjourned meeting is fixed or if the adjournment is for more than thirty (30) days from the date set for the original meeting, then notice of the adjourned meeting shall be given. Notice of any such adjourned meeting shall be given to each stockholder of record entitled to vote at the adjourned meeting in accordance with the provisions of Sections 2.4 and 2.5 of these bylaws. At any adjourned meeting the corporation may transact any business which might have been transacted at the original meeting.

2.8 VOTING

The stockholders entitled to vote at any meeting of stockholders shall be determined in accordance with the provisions of Section 2.11 of these bylaws, subject to the provisions of Sections 217 and 218 of the General Corporation Law of Delaware (relating to voting rights of fiduciaries, pledgors and joint owners, and to voting trusts and other voting agreements).

Except as may be otherwise provided in the Certificate of Incorporation, each outstanding share, regardless of class, shall be entitled to one vote on each matter submitted to a vote of the stockholders. Any stockholder entitled to vote on any matter may vote part of the shares in favor of the proposal and refrain from voting the remaining shares or, except when the matter is the election of directors, may vote them against the proposal; but, if the stockholder fails to specify the number of shares which the stockholder is voting affirmatively, it will be conclusively presumed that the stockholder’s approving vote is with respect to all shares which the stockholder is entitled to vote.

If a quorum is present, the affirmative vote of the majority of the shares represented and voting at a duly held meeting (which shares voting affirmatively also constitute at least a majority of the required quorum) shall be the act of the stockholders, unless the vote of a greater number or a vote by classes is required by law or by the Certificate of Incorporation.

2.9 VALIDATION OF MEETINGS; WAIVER OF NOTICE; CONSENT

The transactions of any meeting of stockholders, either annual or special, however called and noticed, and wherever held, shall be as valid as though they had been taken at a meeting duly held after regular call and notice, if a quorum be present either in person or by proxy, and if, either before or after the meeting, each person entitled to vote, who was not present in person or by proxy, signs a written waiver of notice or a consent to the holding of the meeting or an approval of the minutes thereof. The waiver of notice or consent or approval need not specify either the business to be transacted or the purpose of any annual or special meeting of stockholders. All such waivers, consents, and approvals shall be filed with the corporate records or made a part of the minutes of the meeting.

Attendance by a person at a meeting shall also constitute a waiver of notice of and presence at that meeting, except when the person objects at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened. Attendance at a meeting is not a waiver of any right to object to the consideration of matters required by law to be included in the notice of the meeting but not so included, if that objection is expressly made at the meeting.

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2.10 STOCKHOLDER ACTION BY WRITTEN CONSENT WITHOUT A MEETING

Unless otherwise provided in the Certificate of Incorporation, any action which may be taken at any annual or special meeting of stockholders may be taken without a meeting and without prior notice, if a consent in writing, setting forth the action so taken, is signed by the holders of outstanding shares having not less than the minimum number of votes that would be necessary to authorize or take that action at a meeting at which all shares entitled to vote on that action were present and voted.

Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing. If the action which is consented to is such as would have required the filing of a certificate under any section of the General Corporation Law of Delaware if such action had been voted on by stockholders at a meeting thereof, then the certificate filed under such section shall state, in lieu of any statement required by such section concerning any vote of stockholders, that written notice and written consent have been given as provided in Section 228 of the General Corporation Law of Delaware.

Notwithstanding the foregoing, effective upon the registration of any class of securities of the Corporation pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the stockholders of the Corporation may not take action by written consent without a meeting but must take any such actions at a duly called annual or special meeting.

2.11 RECORD DATE FOR STOCKHOLDER NOTICE; VOTING; GIVING CONSENTS

For purposes of determining the stockholders entitled to notice of any meeting or to vote thereat or entitled to give consent to corporate action without a meeting, the board of directors may fix, in advance, a record date, which shall not be more than sixty (60) days nor less than ten (10) days before the date of any such meeting nor more than sixty (60) days before any such action without a meeting, and in such event only stockholders of record on the date so fixed are entitled to notice and to vote or to give consents, as the case may be, notwithstanding any transfer of any shares on the books of the corporation after the record date.

If the board of directors does not so fix a record date:

(a) the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the business day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the business day next preceding the day on which the meeting is held; and

(b) the record date for determining stockholders entitled to give consent to corporate action in writing without a meeting, (i) when no prior action by the board has been taken, shall be the day on which the first written consent is given, or (ii) when prior action by the board has been taken, shall be at the close of business on the day on which the board adopts the resolution relating to that action.

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The record date for any other purpose shall be as provided in Article VIII of these bylaws.

2.12 PROXIES

Every person entitled to vote for directors, or on any other matter, shall have the right to do so either in person or by one or more agents authorized by a written proxy signed by the person and filed with the secretary of the corporation, but no such proxy shall be voted or acted upon after three (3) years from its date, unless the proxy provides for a longer period. A proxy shall be deemed signed if the stockholder’s name is placed on the proxy (whether by manual signature, typewriting, telegraphic transmission or otherwise) by the stockholder or the stockholder’s attorney-in-fact. The revocability of a proxy that states on its face that it is irrevocable shall be governed by the provisions of Section 212(c) of the General Corporation Law of Delaware.

2.13 INSPECTORS OF ELECTION

Before any meeting of stockholders, the board of directors may appoint an inspector or inspectors of election to act at the meeting or its adjournment. If no inspector of election is so appointed, then the chairman of the meeting may, and on the request of any stockholder or a stockholder’s proxy shall, appoint an inspector or inspectors of election to act at the meeting. The number of inspectors shall be either one (1) or three (3). If inspectors are appointed at a meeting pursuant to the request of one (1) or more stockholders or proxies, then the holders of a majority of shares or their proxies present at the meeting shall determine whether one (1) or three (3) inspectors are to be appointed. If any person appointed as inspector fails to appear or fails or refuses to act, then the chairman of the meeting may, and upon the request of any stockholder or a stockholder’s proxy shall, appoint a person to fill that vacancy.

Such inspectors shall:

(a) determine the number of shares outstanding and the voting power of each, the number of shares represented at the meeting, the existence of a quorum, and the authenticity, validity, and effect of proxies;

(b) receive votes, ballots or consents;

(c) hear and determine all challenges and questions in any way arising in connection with the right to vote;

(d) count and tabulate all votes or consents;

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(e) determine when the polls shall close;

(f) determine the result; and

(g) do any other acts that may be proper to conduct the election or vote with fairness to all stockholders.

ARTICLE III

DIRECTORS

3.1 POWERS

Subject to the provisions of the General Corporation Law of Delaware and to any limitations in the Certificate of Incorporation or these bylaws relating to action required to be approved by the stockholders or by the outstanding shares, the business and affairs of the corporation shall be managed and all corporate powers shall be exercised by or under the direction of the board of directors.

3.2 NUMBER

The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be stockholders.

3.3 ELECTION, QUALIFICATION AND TERM OF OFFICE OF DIRECTORS

Except as provided in Section 3.4 of these Bylaws, at each annual meeting of stockholders, directors of the Corporation shall be elected to hold office until the expiration of the term for which they are elected, and until their successors have been duly elected and qualified; except that if any such election shall not be so held, such election shall take place at a stockholders’ meeting called and held in accordance with the Delaware General Corporation Law.

Directors need not be stockholders unless so required by the Certificate of Incorporation or these Bylaws, wherein other qualifications for directors may be prescribed.

Elections of directors need not be by written ballot.

Notwithstanding the foregoing provisions of this Article, each Director shall serve until his successor is duly elected and qualified or until his earlier death, resignation or removal.

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3.4 RESIGNATION AND VACANCIES

Any director may resign effective on giving written notice to the chairman of the board, the president, the secretary or the board of directors, unless the notice specifies a later time for that resignation to become effective. If the resignation of a director is effective at a future time, the board of directors may elect a successor to take office when the resignation becomes effective.

Unless otherwise provided in the Certificate of Incorporation or these bylaws, vacancies in the board of directors may be filled by a majority of the remaining directors, even if less than a quorum, or by a sole remaining director; however, a vacancy created by the removal of a director by the vote or written consent of the stockholders or by court order may be filled only by the affirmative vote of a majority of the shares represented and voting at a duly held meeting at which a quorum is present (which shares voting affirmatively also constitute a majority of the required quorum), or by the unanimous written consent of all shares entitled to vote thereon. Each director so elected shall hold office until the next annual meeting of the stockholders and until a successor has been elected and qualified.

Unless otherwise provided in the Certificate of Incorporation or these bylaws:

(i) Vacancies and newly created directorships resulting from any increase in the authorized number of directors elected by all of the stockholders having the right to vote as a single class may be filled by a majority of the directors then in office, although less than a quorum, or by a sole remaining director.

(ii) Whenever the holders of any class or classes of stock or series thereof are entitled to elect one or more directors by the provisions of the certificate of incorporation, vacancies and newly created directorships of such class or classes or series may be filled by a majority of the directors elected by such class or classes or series thereof then in office, or by a sole remaining director so elected.

If at any time, by reason of death or resignation or other cause, the corporation should have no directors in office, then any officer or any stockholder or an executor, administrator, trustee or guardian of a stockholder, or other fiduciary entrusted with like responsibility for the person or estate of a stockholder, may call a special meeting of stockholders in accordance with the provisions of the certificate of incorporation or these bylaws, or may apply to the Court of Chancery for a decree summarily ordering an election as provided in Section 211 of the General Corporation Law of Delaware.

If, at the time of filling any vacancy or any newly created directorship, the directors then in office constitute less than a majority of the whole board (as constituted immediately prior to any such increase), then the Court of Chancery may, upon application of any stockholder or stockholders holding at least ten (10) percent of the total number of the shares at the time outstanding having the right to vote for such directors, summarily order an election to be held to fill any such vacancies or newly created directorships, or to replace the directors chosen by the directors then in office as aforesaid, which election shall be governed by the provisions of Section 211 of the General Corporation Law of Delaware as far as applicable.

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3.5 REMOVAL

Subject to any limitations imposed by law, and unless otherwise provided in the Certificate of Incorporation, the Board of Directors, or any individual Director, may be removed from office at any time by the affirmative vote of the holders of at least a majority of the then outstanding shares of the capital stock of the corporation entitled to vote at an election of Directors.

3.6 PLACE OF MEETINGS; MEETINGS BY TELEPHONE

Regular meetings of the board of directors may be held at any place within or outside the State of Delaware that has been designated from time to time by resolution of the board. In the absence of such a designation, regular meetings shall be held at the principal executive office of the corporation. Special meetings of the board may be held at any place within or outside the State of Delaware that has been designated in the notice of the meeting or, if not stated in the notice or if there is no notice, at the principal executive office of the corporation.

Any meeting, regular or special, may be held by conference telephone or similar communication equipment, so long as all directors participating in the meeting can hear one another; and all such directors shall be deemed to be present in person at the meeting.

3.7 FIRST MEETINGS

The first meeting of each newly elected board of directors shall be held at such time and place as shall be fixed by the vote of the stockholders at the annual meeting and no notice of such meeting shall be necessary to the newly elected directors in order legally to constitute the meeting, provided a quorum shall be present. In the event of the failure of the stockholders to fix the time or place of such first meeting of the newly elected board of directors, or in the event such meeting is not held at the time and place so fixed by the stockholders, the meeting may be held at such time and place as shall be specified in a notice given as hereinafter provided for special meetings of the board of directors, or as shall be specified in a written waiver signed by all of the directors.

3.8 REGULAR MEETINGS

Regular meetings of the board of directors may be held without notice if the times of such meetings are fixed by the board of directors.

3.9 SPECIAL MEETINGS; NOTICE

Special meetings of the board of directors for any purpose or purposes may be called at any time by the chairman of the board, or in the absence of the chairman of the board by the chief executive officer or any three directors.

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Notice of the time and place of special meetings shall be delivered personally or by telephone to each director or sent by first-class mail or telegram, charges prepaid, addressed to each director at that director’s address as it is shown on the records of the corporation. If the notice is mailed, it shall be deposited in the United States mail at least four (4) days before the time of the holding of the meeting. If the notice is delivered personally or by telephone or telegram, it shall be delivered personally or by telephone or to the telegraph company at least forty-eight (48) hours before the time of the holding of the meeting. Any oral notice given personally or by telephone may be communicated either to the director or to a person at the office of the director who the person giving the notice has reason to believe will promptly communicate it to the director. The notice need not specify the purpose or the place of the meeting, if the meeting is to be held at the principal executive office of the corporation.

3.10 QUORUM

A majority of the authorized number of directors shall constitute a quorum for the transaction of business, except to adjourn as provided in Section 3.10 of these bylaws. Every act or decision done or made by a majority of the directors present at a duly held meeting at which a quorum is present shall be regarded as the act of the board of directors, subject to the provisions of the Certificate of Incorporation and applicable law.

A meeting at which a quorum is initially present may continue to transact business notwithstanding the withdrawal of directors, if any action taken is approved by at least a majority of the required quorum for that meeting.

3.11 WAIVER OF NOTICE

Notice of a meeting need not be given to any director (i) who signs a waiver of notice or a consent to holding the meeting or an approval of the minutes thereof, whether before or after the meeting, or (ii) who attends the meeting without protesting, prior thereto or at its commencement, the lack of notice to such directors. All such waivers, consents, and approvals shall be filed with the corporate records or made part of the minutes of the meeting. A waiver of notice need not specify the purpose of any regular or special meeting of the board of directors.

3.12 ADJOURNMENT

A majority of the directors present, whether or not constituting a quorum, may adjourn any meeting to another time and place.

3.13 NOTICE OF ADJOURNMENT

Notice of the time and place of holding an adjourned meeting need not be given unless the meeting is adjourned for more than twenty-four (24) hours. If the meeting is adjourned for more than twenty-four (24) hours, then notice of the time and place of the adjourned meeting shall be given before the adjourned meeting takes place, in the manner specified in Section 3.8 of these bylaws, to the directors who were not present at the time of the adjournment.

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3.14 BOARD ACTION BY WRITTEN CONSENT WITHOUT A MEETING

Any action required or permitted to be taken by the board of directors may be taken without a meeting, provided that all members of the board individually or collectively consent in writing to that action. Such action by written consent shall have the same force and effect as a unanimous vote of the board of directors. Such written consent and any counterparts thereof shall be filed with the minutes of the proceedings of the board.

3.15 FEES AND COMPENSATION OF DIRECTORS

Directors and members of committees may receive such compensation, if any, for their services and such reimbursement of expenses as may be fixed or determined by resolution of the board of directors. This Section 3.15 shall not be construed to preclude any director from serving the corporation in any other capacity as an officer, agent, employee or otherwise and receiving compensation for those services.

3.16 APPROVAL OF LOANS TO OFFICERS

The corporation may lend money to, or guarantee any obligation of, or otherwise assist any officer or other employee of the corporation or of its subsidiary, including any officer or employee who is a director of the corporation or its subsidiary, whenever, in the judgment of the directors, such loan, guaranty or assistance may reasonably be expected to benefit the corporation. The loan, guaranty or other assistance may be with or without interest and may be unsecured, or secured in such manner as the board of directors shall approve, including, without limitation, a pledge of shares of stock of the corporation. Nothing contained in this section shall be deemed to deny, limit or restrict the powers of guaranty or warranty of the corporation at common law or under any statute.

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ARTICLE IV

COMMITTEES

4.1 COMMITTEES OF DIRECTORS

The board of directors may, by resolution adopted by a majority of the authorized number of directors, designate one (1) or more committees, each consisting of two or more directors, to serve at the pleasure of the board. The board may designate one (1) or more directors as alternate members of any committee, who may replace any absent member at any meeting of the committee. The appointment of members or alternate members of a committee requires the vote of a majority of the authorized number of directors. Any committee, to the extent provided in the resolution of the board, shall have all the authority of the board, but no such committee shall have the power or authority to (i) amend the Certificate of Incorporation (except that a committee may, to the extent authorized in the resolution or resolutions providing for the issuance of shares of stock adopted by the board of directors as provided in Section 151(a) of the General Corporation Law of Delaware, fix any of the preferences or rights of such shares relating to dividends, redemption, dissolution, any distribution of assets of the corporation or the conversion into, or the exchange of such shares for, shares of any other class or classes or any other series of the same or any other class or classes of stock of the corporation), (ii) adopt an agreement of merger or consolidation under Sections 251 or 252 of the General Corporation Law of Delaware, (iii) recommend to the stockholders the sale, lease or exchange of all or substantially all of the corporation’s property and assets, (iv) recommend to the stockholders a dissolution of the corporation or a revocation of a dissolution, or (v) amend the bylaws of the corporation; and, unless the board resolution establishing the committee, the bylaws or the Certificate of Incorporation expressly so provide, no such committee shall have the power or authority to declare a dividend, to authorize the issuance of stock, or to adopt a certificate of ownership and merger pursuant to Section 253 of the General Corporation Law of Delaware.

4.2 MEETINGS AND ACTION OF COMMITTEES

Meetings and actions of committees shall be governed by, and held and taken in accordance with, the provisions of Article III of these bylaws, Section 3. (place of meetings), Section 3.8 (regular meetings), Section 3.9 (special meetings and notice), Section 3.10 (quorum), Section 3.11 (waiver of notice), Section 3.11 (adjournment), Section 3.12 (notice of adjournment), and Section 3.14 (action without meeting), with such changes in the context of those bylaws as are necessary to substitute the committee and its members for the board of directors and its members; provided, however, that the time of regular meetings of committees may be determined either by resolution of the board of directors or by resolution of the committee, that special meetings of committees may also be called by resolution of the board of directors, and that notice of special meetings of committees shall also be given to all alternate members, who shall have the right to attend all meetings of the committee. The board of directors may adopt rules for the government of any committee not inconsistent with the provisions of these bylaws.

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ARTICLE V

OFFICERS

5.1 OFFICERS

The officers of the corporation shall be a chairman of the board, a chief executive officer, a secretary and a chief financial officer. The corporation may also have, at the discretion of the board of directors, a president, one or more vice presidents, one or more assistant secretaries, one or more assistant treasurers, and such other officers as may be appointed in accordance with the provisions of Section 5.3 of these bylaws. Any number of offices may be held by the same person.

5.2 ELECTION OF OFFICERS

The officers of the corporation, except such officers as may be appointed in accordance with the provisions of Section 5.3 or Section 5.5 of these bylaws, shall be chosen by the board, subject to the rights, if any, of an officer under any contract of employment.

5.3 SUBORDINATE OFFICERS

The board of directors may appoint, or may empower the president to appoint, such other officers as the business of the corporation may require, each of whom shall hold office for such period, have such authority, and perform such duties as are provided in these bylaws or as the board of directors may from time to time determine.

5.4 REMOVAL AND RESIGNATION OF OFFICERS

Subject to the rights, if any, of an officer under any contract of employment, any officer may be removed, either with or without cause, by the board of directors at any regular or special meeting of the board or, except in case of an officer chosen by the board of directors, by any officer upon whom such power of removal may be conferred by the board of directors.

Any officer may resign at any time by giving written notice to the corporation. Any resignation shall take effect at the date of the receipt of that notice or at any later time specified in that notice; and, unless otherwise specified in that notice, the acceptance of the resignation shall not be necessary to make it effective. Any resignation is without prejudice to the rights, if any, of the corporation under any contract to which the officer is a party.

5.5 VACANCIES IN OFFICES

A vacancy in any office because of death, resignation, removal, disqualification or any other cause shall be filled in the manner prescribed in these bylaws for regular appointments to that office.

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5.6 CHAIRMAN OF THE BOARD

The chairman of the board, if such an officer be elected, shall serve as the corporation’s general manager, and shall have general supervision, direction and control of the corporation’s business and its officers, and, if present, preside at meetings of the stockholders and the board of directors and exercise and perform such other powers and duties as may from time to time be assigned to him by the board of directors or as may be prescribed by these bylaws. If there is no chief executive officer, then the chairman of the board shall also be the chief executive officer of the corporation and shall have the powers and duties prescribed in Section 5.7 of these bylaws. The chairman of the board shall report to the board of directors.

5.7 CHIEF EXECUTIVE OFFICER

Subject to such powers, if any, as may be given by the board of directors to the chairman of the board, if there be such an officer, the chief executive officer shall, subject to the control of the chairman of the board, or the board of directors if there is no chairman of the board, have general supervision, direction, and control of the business and the officers of the corporation. He or she shall preside at all meetings of the stockholders and the board of directors, in the absence or nonexistence of a chairman of the board. He or she shall have the general powers and duties of management usually vested in the office of president of a corporation, and shall have such other powers and duties as may be prescribed by the board of directors or these bylaws.

5.8 VICE PRESIDENTS

In the absence or disability of the president, the vice presidents, if any, in order of their rank as fixed by the board of directors or, if not ranked, a vice president designated by the board of directors, shall perform all the duties of the president and when so acting shall have all the powers of, and be subject to all the restrictions upon, the president. The vice presidents shall have such other powers and perform such other duties as from time to time may be prescribed for them respectively by the board of directors, these bylaws, the president or the chairman of the board.

5.9 SECRETARY

The secretary shall keep or cause to be kept, at the principal executive office of the corporation or such other place as the board of directors may direct, a book of minutes of all meetings and actions of directors, committees of directors and stockholders. The minutes shall show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the names of those present at directors’ meetings or committee meetings, the number of shares present or represented at stockholders’ meetings, and the proceedings thereof.

The secretary shall keep, or cause to be kept, at the principal executive office of the corporation or at the office of the corporation’s transfer agent or registrar, as determined by resolution of the board of directors, a share register, or a duplicate share register, showing the names of all stockholders and their addresses, the number and classes of shares held by each, the number and date of certificates evidencing such shares, and the number and date of cancellation of every certificate surrendered for cancellation.

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The secretary shall give, or cause to be given, notice of all meetings of the stockholders and of the board of directors required to be given by law or by these bylaws. He or she shall keep the seal of the corporation, if one be adopted, in safe custody and shall have such other powers and perform such other duties as may be prescribed by the board of directors or by these bylaws.

5.10 CHIEF FINANCIAL OFFICER

The chief financial officer shall keep and maintain, or cause to be kept and maintained, adequate and correct books and records of accounts of the properties and business transactions of the corporation, including accounts of its assets, liabilities, receipts, disbursements, gains, losses, capital, retained earnings and shares. The books of account shall at all reasonable times be open to inspection by any director.

The chief financial officer shall deposit all money and other valuables in the name and to the credit of the corporation with such depositaries as may be designated by the board of directors. He or she shall disburse the funds of the corporation as may be ordered by the board of directors, shall render to the president and directors, whenever they request it, an account of all of his or her transactions as chief financial officer and of the financial condition of the corporation, and shall have such other powers and perform such other duties as may be prescribed by the board of directors or these bylaws.

ARTICLE VI

INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES AND OTHER AGENTS

6.1 INDEMNIFICATION OF DIRECTORS AND OFFICERS

The corporation shall, to the maximum extent and in the manner permitted by the General Corporation Law of Delaware, indemnify each of its directors and officers against expenses (including attorneys’ fees), judgments, fines, settlements and other amounts actually and reasonably incurred in connection with any proceeding, arising by reason of the fact that such person is or was an agent of the corporation. For purposes of this Section 6.1, a “director” or “officer” of the corporation includes any person (i) who is or was a director or officer of the corporation, (ii) who is or was serving at the request of the corporation as a director or officer of another corporation, partnership, joint venture, trust or other enterprise, or (iii) who was a director or officer of a corporation which was a predecessor corporation of the corporation or of another enterprise at the request of such predecessor corporation.

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6.2 INDEMNIFICATION OF OTHERS

The corporation shall have the power, to the maximum extent and in the manner permitted by the General Corporation Law of Delaware, to indemnify each of its employees and agents (other than directors and officers) against expenses (including attorneys’ fees), judgments, fines, settlements and other amounts actually and reasonably incurred in connection with any proceeding, arising by reason of the fact that such person is or was an agent of the corporation. For purposes of this Section 6.2, an “employee” or “agent” of the corporation (other than a director or officer) includes any person (i) who is or was an employee or agent of the corporation, (ii) who is or was serving at the request of the corporation as an employee or agent of another corporation, partnership, joint venture, trust or other enterprise, or (iii) who was an employee or agent of a corporation which was a predecessor corporation of the corporation or of another enterprise at the request of such predecessor corporation.

6.3 INSURANCE

The corporation may purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against him or her and incurred by him or her in any such capacity, or arising out of his or her status as such, whether or not the corporation would have the power to indemnify him or her against such liability under the provisions of the General Corporation Law of Delaware.

ARTICLE VII

RECORDS AND REPORTS

7.1 MAINTENANCE AND INSPECTION OF RECORDS

The corporation shall, either at its principal executive office or at such place or places as designated by the board of directors, keep a record of its stockholders listing their names and addresses and the number and class of shares held by each stockholder, a copy of these bylaws as amended to date, accounting books and other records.

Any stockholder of record, in person or by attorney or other agent, shall, upon written demand under oath stating the purpose thereof, have the right during the usual hours for business to inspect for any proper purpose the corporation’s stock ledger, a list of its stockholders, and its other books and records and to make copies or extracts therefrom. A proper purpose shall mean a purpose reasonably related to such person’s interest as a stockholder. In every instance where an attorney or other agent is the person who seeks the right to inspection, the demand under oath shall be accompanied by a power of attorney or such other writing that authorizes the attorney or other agent to so act on behalf of the stockholder. The demand under oath shall be directed to the corporation at its registered office in Delaware or at its principal place of business.

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The officer who has charge of the stock ledger of a corporation shall prepare and make, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten (10) days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present.

7.2 INSPECTION BY DIRECTORS

Any director shall have the right to examine the corporation’s stock ledger, a list of its stockholders and its other books and records for a purpose reasonably related to his or her position as a director. The Court of Chancery is hereby vested with the exclusive jurisdiction to determine whether a director is entitled to the inspection sought. The Court may summarily order the corporation to permit the director to inspect any and all books and records, the stock ledger, and the stock list and to make copies or extracts therefrom. The Court may, in its discretion, prescribe any limitations or conditions with reference to the inspection, or award such other and further relief as the Court may deem just and proper.

7.3 ANNUAL STATEMENT TO STOCKHOLDERS

The board of directors shall present at each annual meeting, and at any special meeting of the stockholders when called for by vote of the stockholders, a full and clear statement of the business and condition of the corporation.

7.4 REPRESENTATION OF SHARES OF OTHER CORPORATIONS

The chairman of the board, the president, any vice president, the chief financial officer, the secretary or assistant secretary of this corporation, or any other person authorized by the board of directors or the president or a vice president, is authorized to vote, represent, and exercise on behalf of this corporation all rights incident to any and all shares of any other corporation or corporations standing in the name of this corporation. The authority herein granted may be exercised either by such person directly or by any other person authorized to do so by proxy or power of attorney duly executed by such person having the authority.

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ARTICLE VIII

GENERAL MATTERS

8.1 RECORD DATE FOR PURPOSES OTHER THAN NOTICE AND VOTING

For purposes of determining the stockholders entitled to receive payment of any dividend or other distribution or allotment of any rights or the stockholders entitled to exercise any rights in respect of any other lawful action (other than action by stockholders by written consent without a meeting), the board of directors may fix, in advance, a record date, which shall not be more than sixty (60) days before any such action. In that case, only stockholders of record at the close of business on the date so fixed are entitled to receive the dividend, distribution or allotment of rights, or to exercise such rights, as the case may be, notwithstanding any transfer of any shares on the books of the corporation after the record date so fixed, except as otherwise provided by law.

If the board of directors does not so fix a record date, then the record date for determining stockholders for any such purpose shall be at the close of business on the day on which the board adopts the applicable resolution or the sixtieth (60th) day before the date of that action, whichever is later.

8.2 CHECKS; DRAFTS; EVIDENCES OF INDEBTEDNESS

From time to time, the board of directors shall determine by resolution which person or persons may sign or endorse all checks, drafts, other orders for payment of money, notes or other evidences of indebtedness that are issued in the name of or payable to the corporation, and only the persons so authorized shall sign or endorse those instruments.

8.3 CORPORATE CONTRACTS AND INSTRUMENTS: HOW EXECUTED

The board of directors, except as otherwise provided in these bylaws, may authorize any officer or officers, or agent or agents, to enter into any contract or execute any instrument in the name of and on behalf of the corporation; such authority may be general or confined to specific instances. Unless so authorized or ratified by the board of directors or within the agency power of an officer, no officer, agent or employee shall have any power or authority to bind the corporation by any contract or engagement or to pledge its credit or to render it liable for any purpose or for any amount.

8.4 STOCK CERTIFICATES; PARTLY PAID SHARES

The shares of a corporation shall be represented by certificates, provided that the board of directors of the corporation may provide by resolution or resolutions that some or all of any or all classes or series of its stock shall be uncertificated shares. Any such resolution shall not apply to shares represented by a certificate until such certificate is surrendered to the corporation. Notwithstanding the adoption of such a resolution by the board of directors, every holder of stock

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represented by certificates and upon request every holder of uncertificated shares shall be entitled to have a certificate signed by, or in the name of the corporation by, the chairman or vice-chairman of the board of directors, or the president or vice-president, and by the chief financial officer, the secretary or an assistant secretary of such corporation representing the number of shares registered in certificate form. Any or all of the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate has ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if he or she were such officer, transfer agent or registrar at the date of issue.

The corporation may issue the whole or any part of its shares as partly paid and subject to call for the remainder of the consideration to be paid therefor. Upon the face or back of each stock certificate issued to represent any such partly paid shares, upon the books and records of the corporation in the case of uncertificated partly paid shares, the total amount of the consideration to be paid therefor and the amount paid thereon shall be stated. Upon the declaration of any dividend on fully paid shares, the corporation shall declare a dividend upon partly paid shares of the same class, but only upon the basis of the percentage of the consideration actually paid thereon.

8.5 SPECIAL DESIGNATION ON CERTIFICATES

If the corporation is authorized to issue more than one class of stock or more than one series of any class, then the powers, the designations, the preferences, and the relative, participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights shall be set forth in full or summarized on the face or back of the certificate that the corporation shall issue to represent such class or series of stock; provided, however, that, except as otherwise provided in Section 202 of the General Corporation Law of Delaware, in lieu of the foregoing requirements there may be set forth on the face or back of the certificate that the corporation shall issue to represent such class or series of stock a statement that the corporation will furnish without charge to each stockholder who so requests the powers, the designations, the preferences, and the relative, participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights.

8.6 LOST CERTIFICATES

Except as provided in this Section 8.6, no new certificates for shares shall be issued to replace a previously issued certificate unless the latter is surrendered to the corporation and canceled at the same time. The board of directors may, in case any share certificate or certificate for any other security is lost, stolen or destroyed, authorize the issuance of replacement certificates on such terms and conditions as the board may require; the board may require indemnification of the corporation secured by a bond or other adequate security sufficient to protect the corporation against any claim that may be made against it, including any expense or liability, on account of the alleged loss, theft or destruction of the certificate or the issuance of the replacement certificate.

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8.7 CONSTRUCTION; DEFINITIONS

Unless the context requires otherwise, the general provisions, rules of construction, and definitions in the General Corporation Law of Delaware shall govern the construction of these bylaws. Without limiting the generality of this provision, the singular number includes the plural, the plural number includes the singular, and the term “person” includes both a corporation and a natural person.

ARTICLE IX

AMENDMENTS

The original or other bylaws of the corporation may be adopted, amended or repealed by the stockholders entitled to vote; provided, however, that the corporation may, in its Certificate of Incorporation, confer the power to adopt, amend or repeal bylaws upon the directors. The fact that such power has been so conferred upon the directors shall not divest the stockholders of the power, nor limit their power to adopt, amend or repeal bylaws.

ARTICLE X

DISSOLUTION

If it should be deemed advisable in the judgment of the board of directors of the corporation that the corporation should be dissolved, the board, after the adoption of a resolution to that effect by a majority of the whole board at any meeting called for that purpose, shall cause notice to be mailed to each stockholder entitled to vote thereon of the adoption of the resolution and of a meeting of stockholders to take action upon the resolution.

At the meeting a vote shall be taken for and against the proposed dissolution. If a majority of the outstanding stock of the corporation entitled to vote thereon votes for the proposed dissolution, then a certificate stating that the dissolution has been authorized in accordance with the provisions of Section 275 of the General Corporation Law of Delaware and setting forth the names and residences of the directors and officers shall be executed, acknowledged, and filed and shall become effective in accordance with Section 103 of the General Corporation Law of Delaware. Upon such certificate’s becoming effective in accordance with Section 103 of the General Corporation Law of Delaware, the corporation shall be dissolved.

Whenever all the stockholders entitled to vote on a dissolution consent in writing, either in person or by duly authorized attorney, to a dissolution, no meeting of directors or stockholders shall be necessary. The consent shall be filed and shall become effective in accordance with Section 103 of the General Corporation Law of Delaware. Upon such consent’s becoming effective in accordance with Section 103 of the General Corporation Law of Delaware, the corporation shall be dissolved. If

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the consent is signed by an attorney, then the original power of attorney or a photocopy thereof shall be attached to and filed with the consent. The consent filed with the Secretary of State shall have attached to it the affidavit of the secretary or some other officer of the corporation stating that the consent has been signed by or on behalf of all the stockholders entitled to vote on a dissolution; in addition, there shall be attached to the consent a certification by the secretary or some other officer of the corporation setting forth the names and residences of the directors and officers of the corporation.

ARTICLE XI

CUSTODIAN

11.1 APPOINTMENT OF A CUSTODIAN IN CERTAIN CASES

The Court of Chancery, upon application of any stockholder, may appoint one or more persons to be custodians and, if the corporation is insolvent, to be receivers, of and for the corporation when:

(i) at any meeting held for the election of directors the stockholders are so divided that they have failed to elect successors to directors whose terms have expired or would have expired upon qualification of their successors; or

(ii) the business of the corporation is suffering or is threatened with irreparable injury because the directors are so divided respecting the management of the affairs of the corporation that the required vote for action by the board of directors cannot be obtained and the stockholders are unable to terminate this division; or

(iii) the corporation has abandoned its business and has failed within a reasonable time to take steps to dissolve, liquidate or distribute its assets.

11.2 DUTIES OF CUSTODIAN

The custodian shall have all the powers and title of a receiver appointed under Section 291 of the General Corporation Law of Delaware, but the authority of the custodian shall be to continue the business of the corporation and not to liquidate its affairs and distribute its assets, except when the Court of Chancery otherwise orders and except in cases arising under Sections 226(a)(3) or 352(a)(2) of the General Corporation Law of Delaware.

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CERTIFICATE OF ADOPTION OF BYLAWS

OF

ION AMERICA CORPORATION

ADOPTION BY INCORPORATOR

The undersigned person appointed in the Certificate of Incorporation to act as the Incorporator of ION AMERICA CORPORATION. hereby adopts the foregoing bylaws, comprising twenty-two (22) pages, as the Bylaws of the corporation.

Executed this 18^th day of January 2001.

/s/ Rachelle N. Robles

Rachelle N. Robles, Incorporator

Certificate by Secretary of Adoption by Incorporator

The undersigned hereby certifies that he is the duly elected, qualified, and acting Secretary of ION AMERICA CORPORATION. and that the foregoing Bylaws, comprising twenty-two (22) pages, were adopted as the Bylaws of the corporation on January 18, 2001, by the person appointed in the Certificate of Incorporation to act as the Incorporator of the corporation.

IN WITNESS WHEREOF, the undersigned has hereunto set his hand and affixed the corporate seal this 18th day of January, 2001.

/s/ K.R. Sridhar

K.R. Sridhar, Secretary

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EX-4

Exhibit 4.2

BLOOM ENERGY CORPORATION

EIGHTH AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT

June 30, 2011

TABLE OF CONTENTS

		Page
1.	Certain Definitions		2
2.	Restrictions on Transferability		3
3.	Notice of Proposed Transfers		3
4.	Requested Registration		4
5.	Company Registration		6
6.	Registration on Form S-3		8
7.	Expenses of Registration		9
8.	Registration Procedures		9
9.	Termination of Registration Rights		10
10.	Lock-up Agreement		10
11.	Restrictive Legend		11
12.	Indemnification		12
13.	Information by Holder		14
14.	Rule 144 Reporting		14
15.	Transfer of Rights		15
16.	Governing Law		15
17.	Entire Agreement		15
18.	Notices		15
19.	Amendment		15
20.	Limitations on Subsequent Registration Rights		16
21.	Aggregation		17
22.	Counterparts		17
23.	Telecopy Execution and Delivery		17
24.	Jurisdiction; Venue		17
25.	Waiver of Potential Conflicts of Interest		17
26.	Adjustments for Stock Splits, Etc		17
27.	Costs And Attorneys’ Fees		18
28.	Amendment and Restatement		18

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BLOOM ENERGY CORPORATION

EIGHTH AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT

This Eighth Amended and Restated Registration Rights Agreement (this “Agreement”) is made as of June 30, 2011, by and among Bloom Energy Corporation, a Delaware corporation (the “Company”), and each of the persons and entities who have purchased shares of the Company’s Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, Series D Preferred Stock, Series E Preferred Stock, Series F Preferred Stock or Series G Preferred Stock pursuant to stock purchase agreements between such purchasers and the Company.

This Agreement amends and restates in its entirety the Seventh Amended and Restated Registration Rights Agreement dated as of October 29, 2010 (the “Prior Registration Agreement”).

Recitals

WHEREAS, the Company proposes to sell and issue shares of its Series G Preferred Stock to certain investors pursuant to a Series G Preferred Stock Purchase Agreement dated on or after the date herewith;

WHEREAS, such investors have required, as a condition to their purchase of such Series G Preferred Stock, that the Company grant registration rights on the terms and conditions set forth herein such that the purchasers of the Series G Preferred Stock shall enjoy registration rights that are pari passu with those held by the holders of currently outstanding Registrable Securities (the “Current Rights Holders”);

WHEREAS, Section 20 of the Prior Registration Agreement prevents the grant of registration rights by the Company unless such rights are subordinate to those held by the Current Rights Holders;

WHEREAS, Section 19 of the Prior Registration Agreement permits the amendment of the Prior Registration Agreement with the written consent of the Company and holders of a majority of the then outstanding shares of Registrable Securities; and

WHEREAS, the Company and holders of at least a majority of the currently outstanding Registrable Securities who are party to the Prior Registration Agreement wish to amend and restate the Prior Registration Agreement on the terms and conditions set forth herein in order to grant pari passu registration rights to the purchasers of the Company’s Series G Preferred Stock;

Agreement

NOW, THEREFORE, in consideration of the foregoing, the parties agree as follows:

1. Certain Definitions. As used in this Agreement, the following terms shall have the following respective meanings:

“Commission” shall mean the United States Securities and Exchange Commission or any successor agency.

“Common Stock” shall mean shares of the Company’s Common Stock.

“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.

“Holder” shall mean each Purchaser, and any transferee of Registrable Securities who pursuant to Section 15 below is entitled to registration rights hereunder.

“Preferred” shall mean any series of Preferred Stock of the Company (a) issued and sold by the Company pursuant to a stock purchase agreement approved by the Board or (b) issued upon exercise of any outstanding security exercisable for shares of any series of the Company’s Preferred Stock, if the issuance of such security was approved by the Board.

“Purchaser” shall mean each person or entity who has (a) acquired shares of Preferred and who is a signatory to this Agreement, or (b) acquires securities of the Company in the future pursuant to an agreement with the Company and becomes a party to this Agreement pursuant to Section 20(b) hereof.

“Registrable Securities” shall mean (a) shares of the Common Stock issued or issuable upon the conversion of the Preferred; (b) any Common Stock issued or issuable in respect of shares of the Preferred; (c) shares of Common Stock issued or issuable upon any conversion of the Preferred upon any stock split, stock dividend, recapitalization or similar event; (d) shares of Common Stock issued or issuable upon the exercise of the Series E Warrants; and (e) any shares of Common Stock and any shares of Common Stock issued or issuable upon conversion or exercise of any convertible security for which subsequent registration rights are granted in accordance with Section 20(b) below; provided, however, that Registrable Securities shall not include any securities that have been (i) sold to or through a broker or dealer or underwriter in a public distribution or public securities transaction, (ii) sold in a transaction exempt from the registration and prospectus delivery requirements of the Securities Act under Section 4(1) thereof so that all transfer restrictions and restrictive legends with respect thereto, if any, are removed upon the consummation of such sale, or (iii) sold by a person in a transaction in which rights under this Agreement are not assigned.

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

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“Registration Expenses” shall mean all expenses incurred by the Company in complying with Sections 4, 5, and 6 hereof, including, without limitation, all registration, qualification and filing fees, printing expenses, escrow fees, fees and disbursements of counsel for the Company, reasonable fees and disbursements of one special counsel to the Holders, blue sky fees and expenses, and the expense of any special audits incident to or required by any such registration, but excluding all Selling Expenses.

“Restricted Securities” shall mean the securities of the Company required to bear the legend set forth in Section 11 hereof (or any similar legend).

“Securities Act” shall mean the Securities Act of 1933, as amended.

“Selling Expenses” shall mean all underwriting discounts, selling commissions, and stock transfer taxes applicable to the securities registered by the Holders and any fees of counsel to any Holder (other than as allowed as a Registration Expense).

“Series E Warrants” shall mean the warrants issued pursuant to the Series E Preferred Stock Purchase Agreement dated November 2, 2007, by and among the Company and the investors listed on Exhibits A-1 and A-2 attached thereto.

2. Restrictions on Transferability. The Restricted Securities shall not be transferable except upon the conditions specified in this Agreement, which conditions are intended to ensure compliance with the provisions of the Securities Act. Each Holder of Restricted Securities will cause any proposed transferee of the Restricted Securities held by such Holder to agree to take and hold such Restricted Securities subject to the provisions and upon the conditions specified in this Agreement.

3. Notice of Proposed Transfers. The Holder of each certificate representing Restricted Securities by acceptance thereof agrees to comply in all respects with the provisions of this Section 3. Prior to any proposed transfer of any Restricted Securities, unless there is in effect a registration statement under the Securities Act covering the proposed transfer, the Holder thereof shall give written notice to the Company of such Holder’s intention to effect such transfer. Each such notice shall describe the manner and circumstances of the proposed transfer in sufficient detail, and shall, if the Company so reasonably requests, be accompanied by either (a) a written opinion of legal counsel, who shall be reasonably satisfactory to the Company, addressed to the Company and reasonably satisfactory in form and substance to the Company’s counsel, to the effect that the proposed transfer of the Restricted Securities may be effected without registration under the Securities Act, or (b) a “no action” letter from the Commission to the effect that the transfer of such securities without registration will not result in a recommendation by the staff of the Commission that action be taken with respect thereto, whereupon the Holder of such Restricted Securities shall be entitled to transfer such Restricted Securities in accordance with the terms of the notice delivered by such Holder to the Company; provided, however, that (i) no opinion or “no action” letter shall be required in connection with any transfer pursuant to Rule 144 promulgated under the Securities Act, except for such customary legal opinions as may be required by the Company’s transfer agent and (ii) no opinion or “no action” letter need be obtained with respect to a transfer if no consideration is paid in connection to such transfer and the transfer is to (i) an “Affiliate” of a Holder of Restricted

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Securities (as such term is defined in Rule 144(a) promulgated under the Securities Act (which for purposes of this Agreement shall be deemed to include a partner, active or retired, of a Holder and shall include any investment entity under common management with a Holder), (ii) the estate of any such Holder, (iii) the spouse, children, grandchildren or spouse of such children or grandchildren of any Holder or to trusts for the benefit of any Holder or such persons, (iv) to the partners or retired partners of a Holder that is a partnership in accordance with partnership interests, (v) to the shareholders, officers, directors or employees of a Holder that is a corporation in accordance with the terms of their employment or their interest in such corporation, (vi) to the members or former members of a Holder that is a limited liability company in accordance with their interest in such limited liability company. Each certificate evidencing the Restricted Securities transferred as above provided shall bear the appropriate restrictive legends described in Section 11 hereof, except that such certificate shall not bear any such restrictive legend if in the reasonable opinion of counsel for the Company such legend is not required.

4. Requested Registration. Request for Registration. If, at any time after the first to occur of (i) June     , 2016, or (ii) the expiration of six months following the Company’s initial registered public offering, the Company shall receive from any Holder or group of Holders of Registrable Securities representing not less than 33% of the Registrable Securities then outstanding, a written request that the Company effect any registration, qualification or compliance with respect to all or a part of the Registrable Securities, the anticipated gross offering price of which would exceed $10,000,000, the Company will:

(x) promptly give written notice of the proposed registration, qualification, or compliance to all other Holders; and

(y) as soon as practicable, use its best efforts to effect within 120 days of the receipt of such request such registration, qualification or compliance (including, without limitation, the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable blue sky or other state securities laws, and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) as may be so requested and as would permit or facilitate the sale and distribution of all or any such portion of such Registrable Securities as are specified in such request, together with all or any such portion of the Registrable Securities of any Holder or Holders joining in such request as are specified in a written request received by the Company within 20 days after receipt of such written notice from the Company; provided, however, that the Company shall not be obligated to take any action to effect any such registration, qualification or compliance pursuant to this Section 4:

(A) in any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, qualification or compliance unless the Company is already subject to service in such jurisdiction and except as may be required by the Securities Act;

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(B) prior to 60 days immediately following the effective date of any registration statement pertaining to securities of the Company (other than a registration of securities pursuant to Rule 145 promulgated under the Securities Act or with respect to an employee benefit plan); provided, however, that with respect to the Company’s initial registered public offering, such period will be the market stand-off period specified in the agreements contemplated by Section 10 below;

(C) prior to the time the Company abandons its efforts to effect its initial registered public offering if the Company has delivered written notice to the Holders within 30 days of receiving a registration request under this Section 4 that the Company intends to effect such an initial registered public offering and intends to file for such offering within 90 days; provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or

(D) after the Company has effected two such registrations pursuant to this Section 4, and such registrations have been declared or ordered effective.

The Company shall not be required to maintain and keep any such registration under this Section 4 effective after the earlier to occur of (i) 90 days from the date of effectiveness of such registration statement or (ii) such date as the disposition of the Registrable Securities subject to such registration has been completed.

Subject to the foregoing clauses, the Company shall file a registration statement covering the Registrable Securities so requested to be registered as soon as practicable after receipt of the request or requests of any Holder or Holders. If, however, the Company shall furnish to the Holder or Holders requesting a registration statement pursuant to this Section 4 a certificate signed by the President 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 registration statement to be filed and it is therefore essential to defer the filing of such registration statement, the Company shall have the right to defer such filing within any 12-month period, once for a period of not more than one hundred-twenty (120) days and once for a period of not more than ninety (90) days after receipt of the request of the Holders initiating registration under this Section 4; provided, however, that the Company may not exercise its second right to defer such filing unless thirty days have elapsed after the end of the Company’s first such deferral and the registration statement so deferred has been filed.

(b) Underwriting. If the Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request and the Company shall include such information in its written notice to the other Holders. The right of any Holder to registration pursuant to this Section 4 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.

The Company shall (together with all Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form with the managing underwriter selected for such underwriting by the holders of a majority of the Registrable Securities proposed by such Holders to be distributed through such underwriting. Notwithstanding any other

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provision of this Section 4, if the managing underwriter advises the Holders in writing that marketing factors require a limitation of the number of shares to be underwritten, then, subject to the provisions of Section 4(a) above, the Company shall so advise all Holders and the number of shares of Registrable Securities that may be included in the registration and underwriting shall be allocated among all Holders requesting inclusion in the registration in proportion, as nearly as practicable, to the respective amounts of Registrable Securities originally requested by such Holders to be included in the Registration Statement. No Registrable Securities excluded from the underwriting by reason of the managing underwriter’s marketing limitation shall be included in such registration.

If the managing underwriter has not limited the number of Registrable Securities to be underwritten, the Company may include securities for its own account or for the account of others in such registration if the underwriter so agrees and if the number of Registrable Securities which would otherwise have been included in such registration and underwriting will not thereby be limited, and provided that the Company or the other selling stockholders shall bear an equitable share of the Registration Expenses in connection with such registration and underwriting.

If any Holder of Registrable Securities disapproves of the terms of the underwriting, such Holder may, subject to Section 7 hereof, elect to withdraw therefrom by written notice to the Company, the managing underwriter and the other Holders. The Registrable Securities and/or other securities so withdrawn shall also be withdrawn from registration; provided, however, that if by the withdrawal of such Registrable Securities a greater number of Registrable Securities held by other Holders may be included in such registration (up to the maximum of any limitation imposed by the underwriters), then the Company shall offer to all Holders who have included Registrable Securities in the registration the right to include additional Registrable Securities in the same proportion used in determining the underwriter limitation in this Section 4(b).

5. Company Registration.

(a) Notice of Registration. If the Company shall determine to register any of its securities, either for its own account or the account of a security holder or holders exercising their respective demand registration rights (other than under Section 4 hereof), other than: (i) a registration relating solely to employee benefit plans; (ii) a registration relating to the offer and sale of debt securities; (iii) a registration relating to a corporate reorganization or other transaction on Form S-4; or (iv) a shelf registration statement on Form S-3 for the primary issuance of securities by the Company pursuant to Rule 415 of the Securities Act, the Company will:

(A) promptly give to each Holder written notice thereof; and

(B) include in such registration (and any related qualification under blue sky laws or other compliance), and in any underwriting involved therein, all the Registrable Securities specified in a written request or requests, made within 15 days after receipt of such written notice from the Company, by any Holder or Holders (a “piggyback” registration).

(b) Cut-Back and Allocation. Notwithstanding any other provision of this Section 5, if the managing underwriter determines that marketing factors require a limitation of the number of shares to be underwritten, the managing underwriter may limit the number of Registrable

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Securities to be included in the registration and underwriting; provided, however, that any such limitation shall be restricted so as (i) not to prevent the Holders of Registrable Securities requesting to be included in such registration from including Registrable Securities representing up to 30% of the total number of shares registered thereby, except for a registration relating to the Company’s initial public offering of its Common Stock or if the registration was initiated by selling stockholders other than Holders of Registrable Securities pursuant to a registration rights agreement with the Company (which shall, in all cases, be subject to Section 20(a) hereof), in which cases all Registrable Securities may be excluded (as described in the following subsection) (it being understood that other than in the circumstances described in clauses (ii)(A) and (B) below and the Company’s initial public offering of its Common Stock, in no case shall the number of securities requested to be included in the registration by the Holders of Registrable Securities be excluded without first excluding shares requested to be included by any other party); and (ii) (A) if the registration was initiated by selling stockholders other than Holders of Registrable Securities pursuant to a registration rights agreement with the Company (which shall, in all cases, be subject to Section 20(a) hereof) then (1) all securities requested to be included by the Holders and all other selling stockholders other than the parties to such registration rights agreement shall be excluded pro rata from the registration (provided, however, that the Registrable Securities requested to be registered by the Holders shall not represent less than 30% of the total number of shares registered thereby unless all shares to be issued by the Company and registered thereby have first been excluded), (2) thereafter if additional shares must be excluded from such registration, shares to be issued by the Company shall be excluded and (3) thereafter, if additional shares must be excluded from such registration, all selling stockholders party to such registration rights agreement shall share pro rata in the number of shares to be excluded from such registration pursuant to this clause (ii)(A)(3), such sharing to be based on the respective numbers of shares owned by such holders; and (B) if the registration was initiated by the Company then, (1) all securities requested to be included by selling stockholders other than Holders of Registrable Securities shall share pro rata in the number of shares to be excluded from such registration, such sharing to be based on the respective numbers of shares owned by each stockholder, (2) thereafter if additional shares must be excluded from such registration, all securities requested to be included by Holders of Registrable Securities shall share pro rata in the number of shares to be excluded from such registration, such sharing to be based on the respective number of shares owned by each Holder of Registrable Securities who has elected to participate in such registration, and (3) thereafter if additional shares must be excluded from such registration, shares to be issued by the Company shall be excluded. In such event, the Company shall so advise all Holders of Registrable Securities which would otherwise be registered and underwritten pursuant hereto, and the number of shares of Registrable Securities that may be included in the registration and underwriting shall be allocated among the Holders in proportion, as nearly as practicable, to the respective amounts of Registrable Securities requested by such Holders. If any Holder disapproves of the terms of any such underwriting, such Holder may elect to withdraw therefrom by written notice to the Company and the managing underwriter. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from such registration.

(c) Right to Terminate Registration. The Company shall have the right to terminate or withdraw any registration initiated by it under this Section 5 prior to the effectiveness of such registration whether or not any Holder has elected to include securities in such registration.

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6. Registration on Form S-3. The Company shall use its best efforts to qualify for registration on Form S-3, and to that end, the Company shall comply with the reporting requirements of the Exchange Act. After the Company has qualified for the use of Form S-3, any Holder or group of Holders of Registrable Securities shall have the right to request that the Company register such Holder’s shares of Registrable Securities on Form S-3 (such requests shall be in writing and shall state the number of shares of Registrable Securities to be disposed of and the intended method of disposition of such shares by each such Holder), subject to the following limitations:

(a) the Company shall not be obligated to cause a registration on Form S-3 to become effective prior to 60 days following the effective date of a Company-initiated registration (other than a registration effected solely to qualify an employee benefit plan or to effect a business combination pursuant to Rule 145);

(b) the Company shall not be obligated to cause a registration on Form S-3 to become effective prior to expiration of 90 days following the effective date of the most recent registration pursuant to a request under Section 4 of this Agreement or pursuant to a request by a holder of registration rights under any other agreement of the Company granting Form S-3 demand registration rights that has been approved in accordance with Section 20(a) hereof;

(c) the Company shall not be required to effect more than three (3) registrations on Form S-3 pursuant to this Section 6 during any 12-month period;

(d) the Company shall not be required to effect a registration on Form S-3 unless the Holder or Holders requesting registration propose to dispose of shares of Registrable Securities having an aggregate anticipated gross offering price to the public (before deduction of underwriting discounts and expenses of sale) of at least $3,000,000;

(e) the Company shall not be required to maintain and keep any such registration on Form S-3 effective after the earlier to occur of (A) 90 days from the date of effectiveness of such registration statement or (B) such date as the disposition of the Registrable Securities subject to such registration has been completed; and

(f) if the Company shall furnish to the Holder or Holders requesting a registration statement pursuant to this Section 6 a certificate signed by the President 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 registration statement to be filed, and it is therefore essential to defer the filing of such registration statement, the Company shall have the right to defer such filing within any 12-month period, once for a period of not more than one hundred-twenty (120) days and once for a period of not more than ninety (90) days after receipt of the request of the Holders initiating registration under this Section 6; provided, however, that the Company may not exercise its second right to defer such filing unless thirty days have elapsed after the end of the Company’s first such deferral and the registration statement so deferred has been filed.

The Company shall give notice to all Holders of the receipt of a request for registration pursuant to this Section 6 and shall provide a reasonable opportunity for all such other Holders to participate in the registration. Subject to the foregoing, the Company will use its best efforts to effect promptly the registration of all shares of Registrable Securities on Form S-3 to the extent requested by the Holder or Holders thereof for purposes of disposition.

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7. Expenses of Registration. All Registration Expenses incurred in connection with any registration, qualification or compliance pursuant to Sections 4, 5, or 6 hereof shall be borne by the Company. All Selling Expenses relating to securities registered by the Holders shall be borne by the Holders of such securities pro rata on the basis of the number of shares so registered. Notwithstanding the foregoing, the Company shall not be required to pay for Registration Expenses pursuant to Section 4 if the registration request is subsequently withdrawn at the request of the Holders of a majority of the Registrable Securities to be registered (which Holders shall bear such expenses), unless the holders of a majority of the Registrable Securities to be registered agree to forfeit one demand registration right pursuant to Section 4; provided, however, that if at the time of such withdrawal, the Holders have learned of a material adverse change in the condition, business or prospects of the Company from that known to the Holders at the time of their request, then the Holders shall not be required to pay any of such Registration Expenses and shall not forfeit their right to one demand registration pursuant to Section 4. If the Company shall withdraw a registration initiated under Section 5, the expenses of such withdrawn registration shall be borne by the Company.

8. Registration Procedures. In the case of each registration, qualification, or compliance effected by the Company pursuant to this Agreement, the Company will keep each Holder advised in writing as to the initiation of each registration, qualification, and compliance and as to the completion thereof. In connection with any registration effected pursuant to this Agreement, the Company will prepare and file such amendments and supplements to its 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. At its expense the Company will furnish such number of prospectuses and other documents incident thereto as a Holder from time to time may reasonably request. In connection with any registration effected pursuant to this Agreement, the Company shall also (to the extent not otherwise expressly required pursuant to this Agreement):

(a) Prepare and file with the SEC a registration statement with respect to such Registrable Securities and use its commercially reasonable efforts to cause such registration statement to become effective;

(b) Use its commercially reasonable efforts to 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; provided, however, 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; and

(c) 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 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 reasonable efforts to amend or supplement such prospectus in order to cause such prospectus not to 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.

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(d) 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 Registrable Securities owned by them.

(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. Each Holder participating in such underwriting shall also enter into and perform its obligations under such an agreement.

(f) Use its reasonable efforts to furnish, on the date that such Registrable Securities are delivered to the underwriters for sale, if such securities are being sold through underwriters, (i) 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 (ii) a 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.

9. Termination of Registration Rights. The registration rights granted pursuant to this Agreement shall terminate five years after the close of the Company’s initial public offering or, as to any Holder, at such time after the Company’s initial public offering as the Registrable Securities held by such Holder may be sold within any three-month period without restriction pursuant to Rule 144 promulgated under the Securities Act, at which time, the Registrable Securities held by such Holder will not be considered “then outstanding shares of Registrable Securities” and the consent of such Holder shall not be counted for purposes of obtaining the majority consent required for purposes of amending this Agreement pursuant to Section 19.

10. Lock-up Agreement. In consideration for the Company agreeing to its obligations under this Agreement, each Holder of Registrable Securities and each transferee pursuant to Section 15 hereof agrees, in connection with the first registration of the Company’s securities under the Securities Act, upon request of the Company or the underwriters managing any underwritten offering of the Company’s securities, not to (a) 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 (b) 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 (a) or (b) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise, without the prior written consent of the Company or such underwriters, as the case may be, for such period of time (not to exceed 180 days or such other period as may be

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requested by the Company or the underwriters to accommodate regulatory restrictions on (i) the publication or other distribution of research reports and (ii) analyst recommendations and opinions, including, but not limited to, the restrictions contained in NASD Rule 2711(f)(4) or NYSE Rule 472(f)(4), or any successor provisions or amendments thereto) from the effective date of such registration as the Company or the underwriters may specify; provided, however, that all (x) officers and directors of the Company and (y) stockholders of the Company holding three percent (3%) or more of the total outstanding Common Stock of the Company (treating all convertible, exercisable and exchangeable Company securities on an as-if converted to Common Stock basis) are bound by agreements that are no less restrictive. The underwriters in connection with the Company’s initial public offering are intended third party beneficiaries of this Section 10 and shall have the right, power and authority to enforce the provisions hereof as though they were a party hereto. Each Holder agrees that the Company may instruct its transfer agent to place stop-transfer notations in its records to enforce the provisions of this Section 10 until the end of such period. This Section 10 shall supersede any conflicting provision of Section 4 or Section 6 above.

11. Restrictive Legend. Each certificate representing (a) the Preferred, (b) shares of the Common Stock issued upon conversion of the Preferred, (c) any security for which subsequent registration rights are granted in accordance with Section 20(b) of the Agreement, and (d) any other securities issued in respect of any shares described in clauses (a), (b), and (c) above upon any stock split, stock dividend, recapitalization, or similar event, shall (unless otherwise permitted by the provisions of Section 3 above) be stamped or otherwise imprinted with a legend in substantially the following form (in addition to any legend required under applicable state securities laws):

THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”). THESE SECURITIES MAY NOT BE OFFERED, SOLD, PLEDGED OR TRANSFERRED UNLESS (I) THERE IS AN EFFECTIVE REGISTRATION STATEMENT COVERING SUCH OFFER, SALE OR TRANSFER OR (II) THERE IS AN OPINION OF COUNSEL, REASONABLY SATISFACTORY TO THE COMPANY, THAT AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT FOR SUCH OFFER, SALE OR TRANSFER IS AVAILABLE. COPIES OF THE AGREEMENTS COVERING THE PURCHASE OF THESE SECURITIES AND RESTRICTING THEIR TRANSFER MAY BE OBTAINED AT NO COST BY WRITTEN REQUEST MADE BY THE HOLDER OF RECORD OF THIS CERTIFICATE TO THE SECRETARY OF THE COMPANY AT ITS PRINCIPAL EXECUTIVE OFFICES.

THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A LOCK-UP PERIOD OF UP TO 180 DAYS FOLLOWING THE EFFECTIVE DATE OF A REGISTRATION STATEMENT OF THE COMPANY FILED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AS SET FORTH IN AN AGREEMENT BETWEEN THE COMPANY AND THE ORIGINAL HOLDER OF THESE SHARES, A COPY OF WHICH MAY BE OBTAINED AT THE PRINCIPAL OFFICE OF THE COMPANY. SUCH LOCK-UP PERIOD IS BINDING ON TRANSFEREES OF THESE SECURITIES.

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Each Purchaser and Holder consents to the Company making a notation on its records and giving instructions to any transfer agent of the Preferred or the Common Stock in order to implement the restrictions on transfer established in this Section.

12. Indemnification.

(a) To the extent permitted by law, the Company will indemnify each Holder, each of its officers, directors and partners and such Holder’s legal counsel and independent accountants, and each person controlling such Holder within the meaning of Section 15 of the Securities Act, with respect to which registration, qualification or compliance has been effected pursuant to this Agreement, and each underwriter, if any, and each person who controls any underwriter within the meaning of Section 15 of the Securities Act, against all expenses, claims, losses, damages and liabilities (or actions in respect thereof), including any of the foregoing incurred in settlement of any litigation, commenced or threatened, arising out of or based on any untrue statement (or alleged untrue statement) of a material fact contained in any registration statement, prospectus, offering circular or other document, or any amendment or supplement thereto, incident to any such registration, qualification or compliance, or based on any omission (or alleged omission) to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading, or any violation or alleged violation by the Company of the Securities Act or the Exchange Act or the securities laws of any state or any rule or regulation thereunder, and relating to action or inaction required of the Company in connection with any such registration, qualification or compliance, and will reimburse each such Holder, each of its officers, directors and partners and such Holder’s legal counsel and independent accountants, and each person controlling such Holder, each such underwriter and each person who controls any such underwriter, for any legal and any other expenses reasonably as incurred in connection with investigating, preparing or defending any such claim, loss, damage, liability or action; provided, however, that the Company will not be liable in any such case to the extent that any such claim, loss, damage, liability or expense arises out of or is based on any untrue statement or omission or alleged untrue statement or omission, made in reliance upon and in conformity with written information furnished to the Company by an instrument duly executed by such Holder or underwriter and stated to be specifically for use therein; and provided further, that the Company will not be liable to any such person or entity with respect to any such untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus that is corrected in the final prospectus filed with the Commission pursuant to Rule 424(b) promulgated under the Securities Act (or any amendment or supplement to such prospectus) if the person asserting any such loss, claim, damage or liability purchased securities but was not sent or given a copy of the prospectus (as amended or supplemented) at or prior to the written confirmation of the sale of such securities to such person in any case where such delivery of the prospectus (as amended or supplemented) is required by the Securities Act, unless such failure to deliver the prospectus (as amended or supplemented) was a result of the Company’s failure to provide such prospectus (as amended or supplemented).

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(b) To the extent permitted by law, each Holder will, severally and not jointly, if Registrable Securities held by such Holder are included in the securities as to which such registration, qualification or compliance is being effected, indemnify the Company, each of its directors and officers and its legal counsel and independent accountants, each underwriter, if any, of the Company’s securities covered by such a registration statement, each person who controls the Company or such underwriter within the meaning of Section 15 of the Securities Act, and each other such Holder, each of its officers, directors and partners and each person controlling such Holder within the meaning of Section 15 of the Securities Act, against all claims, losses, damages and liabilities (or actions in respect thereof) arising out of or based on any untrue statement (or alleged untrue statement) of a material fact contained in any such registration statement, prospectus, offering circular or other document, or any omission (or alleged omission) to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and will reimburse the Company, such other Holders, such directors, officers, legal counsel, independent accountants, underwriters or control persons for any legal or any other expenses reasonably incurred in connection with investigating or defending any such claim, loss, damage, liability or action, in each case to the extent, but only to the extent, that such untrue statement (or alleged untrue statement) or omission (or alleged omission) is made in such registration statement, prospectus, offering circular or other document in reliance upon and in conformity with written information furnished to the Company by an instrument duly executed by such Holder and stated to be specifically for use therein; provided, however, that the obligations of such Holders hereunder shall be limited to an amount equal to the proceeds, net of underwriting discounts and commissions but not expenses, to each such Holder of Registrable Securities sold as contemplated herein.

(c) Each party entitled to indemnification under this Section 12 (the “Indemnified Party”) shall give notice to the party required to provide indemnification (the “Indemnifying Party”) promptly after such Indemnified Party has actual knowledge of any claim as to which indemnity may be sought, and shall permit the Indemnifying Party to assume the defense of any such claim or any litigation resulting therefrom; provided, however, that counsel for the Indemnifying Party, who shall conduct the defense of such claim or litigation, shall be approved by the Indemnified Party (whose approval shall not be unreasonably withheld) and the Indemnified Party may participate in such defense at such Indemnified Party’s expense; and provided further, that the failure of any Indemnified Party to give notice as provided herein shall not relieve the Indemnifying Party of its obligations under this Agreement, except to the extent, but only to the extent, that the Indemnifying Party’s ability to defend against such claim or litigation is impaired as a result of such failure to give notice. No Indemnifying Party in the defense of any such claim or litigation shall, except with the consent of each Indemnified Party, which consent shall not be unreasonably withheld, 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.

(d) If the indemnification provided for in this Section 12 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 therein, then the Indemnifying Party, in lieu of indemnifying such Indemnified Party hereunder, shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, liability, claim, damage or expense in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party on the one hand and of the Indemnified Party on the other 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,

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provided, however, that the obligations of such Holders hereunder shall be limited to an amount equal to the proceeds, net of underwriting discounts and commissions but not expenses, to each such Holder of Registrable Securities sold as contemplated herein. The relative fault of the Indemnifying Party and of the Indemnified Party shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a 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.

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

(f) The obligations of the Company and Holders under this Section 12 shall survive the completion of any offering of Registrable Securities in a registration statement under this Agreement and the termination of this Agreement.

13. Information by Holder. The Holder or Holders of Registrable Securities included in any registration shall furnish to the Company such information regarding such Holder or Holders and the distribution proposed by such Holder or Holders as the Company may request in writing and as shall be required in connection with any registration, qualification or compliance referred to in this Agreement.

14. 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 Restricted Securities to the public without registration, after such time as a public market exists for the Common Stock, the Company agrees to use its best efforts to:

(a) make and keep public information available, as those terms are understood and defined in Rule 144 promulgated 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) furnish to Holders upon request a written statement as to its compliance with the reporting requirements of Rule 144 (at any time after 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 such reporting requirements), a copy of the most recent annual or quarterly report of the Company, 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 such Holder to sell any such securities without registration.

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15. Transfer of Rights. The rights granted hereunder to cause the Company to register securities may be assigned to (a) a transferee or assignee of Purchaser who acquires at least 200,000 shares of Common Stock and/or shares of the Company’s Preferred Stock convertible into such number of shares of Common Stock, and (b) any Affiliate of a Purchaser, provided that, in either case, (i) the Company is, within a reasonable time after such transfer, furnished with written notice of the name and address of such transferee or assignee and the securities with respect to which such registration rights are being assigned; (ii) such transferee or assignee agrees in writing to be bound by and subject to the terms and conditions of this Agreement, including, without limitation, the provisions of Section 10 hereof; and (iii) such assignment shall be effective only if immediately following such transfer the further disposition of such securities by the transferee or assignee is restricted under the Securities Act.

16. Governing Law. This Agreement shall be governed by and interpreted in accordance with the laws of the State of California, as applied to agreement entered and to be performed entirely within California.

17. Entire Agreement. This Agreement and any other agreement entered into by the Company and any other party hereto in connection herewith constitute the full and entire understanding among the parties regarding the subject matter herein. Except as otherwise expressly provided herein, the provisions hereof shall inure to the benefit of, and be binding upon, the successors, assigns, heirs, executors, and administrators of the parties hereto.

18. Notices. All notices and other communications required or permitted hereunder shall be in writing and shall be mailed by registered or certified mail, postage prepaid, or otherwise delivered by hand or by messenger, addressed (a) if to a Holder, to such Holder’s address as set forth in the books and records of the Company or to such other address as such Holder shall have furnished to the Company in writing; (b) if to any other person or entity who may become a Holder pursuant to this Agreement, to such address as such person or entity shall have furnished the Company in writing, or, until any such purchaser or entity so furnishes an address to the Company, then to the address of the last holder of such Registrable Securities who has so furnished an address to the Company; (c) if to the Company, to its principal executive offices, located at 1252 Orleans Drive, Sunnyvale, California 94089, and addressed to the attention of the Chief Executive Officer, or to such other address as the Company shall have furnished to the other parties hereto.

Each such notice or other communication shall for all purposes of this Agreement be treated as effective or having been given when delivered if delivered personally, or, if sent by mail, at the earlier of its receipt or 72 hours after the same has been deposited in a regularly maintained receptacle for the deposit of the United States mail, addressed and mailed as aforesaid.

19. Amendment. Any provision of this Agreement may be amended, waived or modified upon the written consent of (a) the Company and (b) holders of a majority of the then outstanding shares of Registrable Securities held by the original signatories (and their permitted transferees and assignees) of this Agreement; provided, however, that investors purchasing shares of the Company’s Series G Preferred Stock in a closing that occurs on or subsequent to the date hereof may become parties to this Agreement by executing a counterpart of this Agreement without any amendment of this Agreement pursuant to this paragraph or any consent or approval of any other Holder; provided,

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further, the foregoing notwithstanding, the rights of any individual holder of Registrable Securities shall not be amended or waived without the prior written consent of such holder if such amendment or waiver (a) is adverse to such holder in a manner that differs from how similarly situated holders of Registrable Securities are affected or (b) reduces or alters the rights of any Holder vis-à-vis any other Holder. Any Holder may waive any of his or her rights or the Company’s obligations hereunder without obtaining the consent of any other Holder.

20. Limitations on Subsequent Registration Rights.

(a) From and after the date of this Agreement, the Company shall not enter into any agreement granting any holder or prospective holder of any securities of the Company registration rights with respect to such securities without the prior written consent of the holders of a majority of the Registrable Securities then outstanding unless (i) such new registration rights are piggyback registration rights that are subordinate in all respects to those granted to the original signatories to this Agreement pursuant to Section 5 of this Agreement, and (ii) such holder or prospective holder agrees to a standoff obligations provision no less restrictive than the one set forth in Section 10 hereof.

(b) Where the Company determines to grant any holder or prospective holder of any securities of the Company piggyback registration rights (in connection with the original issuance of the securities to which such rights relate) that are subordinate in all respects to those of the original signatories to this Agreement hereunder and determines that the grant of such rights shall be made pursuant to this Agreement, then such grant shall be evidenced by the execution of an additional signature page to this Agreement by the Company and such holder, without any requirement on the part of the Company to seek any consent or approval of the Holders and the shares of the Company’s Common Stock issued or issuable to such holder shall be deemed Registrable Securities hereunder and such holder shall be deemed a Purchaser for purposes of this Agreement.

(c) Notwithstanding the foregoing, each of the Holders acknowledges and agrees that the Company has granted certain registration rights to Venture Lending & Leasing III, LLC, a Delaware limited liability company (“VL&L”), pursuant to the Registration Rights Agreement dated as of May 3, 2002, as amended pursuant to Amendment No. 1 thereto dated as of September 13, 2002 (the “First Amendment”) and Amendment No. 2 thereto dated as of April 18, 2003 (the “Second Amendment”). In accordance with the First Amendment and the Second Amendment, each of the Holders agrees that VL&L shall be deemed a “Holder” for all purposes of this Agreement with respect to the Registrable Securities issuable upon exercise of the Warrants (as each individual “Warrant” is defined in the First Amendment and the Second Amendment); provided, however, (i) VL&L shall have no rights under Section 4 of this Agreement and (ii) Section 15 of this Agreement, which sets forth restrictions on the transfer of the rights set forth herein, shall not apply to VL&L.

(d) Notwithstanding the foregoing, each of the Holders acknowledges and agrees that the Company has granted certain registration rights to TriplePoint Capital LLC, a Delaware limited liability company (“TriplePoint”), pursuant to Amendment No. 1 to the Seventh Amended and Restated Registration Rights Agreement dated as of October 29, 2010 (the “First Amendment”).

-16-

In accordance with the First Amendment, each of the Holders agrees that TriplePoint shall be deemed a “Holder” for all purposes of this Agreement with respect to the Registrable Securities issuable upon exercise of the TriplePoint Warrant(s) (as defined in the First Amendment); provided, however, that TriplePoint shall have no rights under Section 4 of this Agreement.

21. Aggregation. For the purposes of this Agreement, the number of shares of Registrable Securities held by a Holder shall include the holdings of its Affiliates, and such holdings shall be aggregated together.

22. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be an original and all of which together shall constitute one instrument.

23. Telecopy Execution and Delivery. A facsimile, telecopy or other reproduction of this Agreement may be executed by one or more parties hereto, and an executed copy of this Agreement may be delivered by one or more parties hereto by facsimile or similar electronic transmission device pursuant to which the signature of or on behalf of such party can be seen, and such execution and delivery shall be considered valid, binding and effective for all purposes. At the request of any party hereto, all parties hereto agree to execute an original of this Agreement as well as any facsimile, telecopy or other reproduction hereof.

24. Jurisdiction; Venue. With respect to any disputes arising out of or related to this Agreement, the parties consent to the exclusive jurisdiction of, and venue in, the state courts in Santa Clara County in the State of California (or in the event of exclusive federal jurisdiction, the courts of the Northern District of California).

25. Waiver of Potential Conflicts of Interest. Each of the Holders and the Company acknowledges that Wilson Sonsini Goodrich & Rosati, Professional Corporation (“WSGR”) may have represented and may currently represent such Holder and other Holders in matters unrelated to the transactions contemplated by this Agreement. In the course of such representation, WSGR may have come into possession of confidential information relating to such Holders. Each of the Holders and the Company acknowledges that WSGR is representing only the Company in this transaction. Each of the Holders and the Company understands that an affiliate of WSGR is a Holder under this Agreement. Pursuant to Rule 3-310 of the Rules of Professional Conduct promulgated by the State Bar of California, an attorney must avoid representations in which the attorney has or had a relationship with another party interested in the representation without the informed written consent of all parties affected. By executing this Agreement, each of the Holders and the Company hereby waives any actual or potential conflict of interest that may arise in this financing as a result of WSGR’s representation of such persons or entities in the financing, WSGR’s possession of such confidential information and the rights of WSGR’s affiliate as a Holder under this Agreement. Each of the Holders and the Company represents that it has had the opportunity to consult with independent counsel concerning the giving of this waiver.

26. 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 Corporation of any class or series, then, upon the occurrence of any subdivision, combination or stock dividend of such class or series of stock, the specific number of shares so referenced in this Agreement shall automatically be proportionately adjusted to reflect the affect on the outstanding shares of such class or series of stock by such subdivision, combination or stock dividend.

-17-

27. Costs And Attorneys’ Fees. In the event that any action, suit or other proceeding is instituted concerning or arising out of this Agreement or any transaction contemplated hereunder, the prevailing party shall recover all of such party’s costs and attorneys’ fees incurred in each such action, suit or other proceeding, including any and all appeals or petitions therefrom.

28. Amendment and Restatement. This Agreement amends and restates in its entirety the Prior Registration Agreement. In accordance with Section 19 of the Prior Registration Agreement, this Agreement shall be effective when executed by the Company and holders of a majority of the outstanding shares of Registrable Securities held by the original signatories (and their permitted transferees and assignees) of the Prior Registration Agreement.

[Remainder of Page Intentionally Left Blank]

-18-

IN WITNESS WHEREOF, the undersigned have executed this Eighth Amended and Restated Registration Rights Agreement as of the date set forth above.

“COMPANY”	BLOOM ENERGY CORPORATION
	a Delaware corporation
	By:	/s/ K.R. Sridhar
		K.R. Sridhar
		President and Chief Executive Officer
“PURCHASERS”	K.R. SRIDHAR
	Signature:	/s/ K.R. Sridhar
	Address:	18351 Overlook Road Los Gatos, CA 95030

[Signature Page to Bloom Energy Eighth Amended and Restated Registration Rights Agreement]

IN WITNESS WHEREOF, the undersigned have executed this Eighth Amended and Restated Registration Rights Agreement as of the date set forth above.

“PURCHASERS”	1536057 ALBERTA LTD.
	By:	/s/ Jagdeep Singh Bachher
	Name:	Jagdeep Singh Bachher
	Title:	Director
	1536053 ALBERTA LTD.
	By:	/s/ Jagdeep Singh Bachher
	Name:	Jagdeep Singh Bachher
	Title:	Director

[Signature Page to Bloom Energy Eighth Amended and Restated Registration Rights Agreement]

IN WITNESS WHEREOF, the undersigned have executed this Eighth Amended and Restated Registration Rights Agreement as of the date set forth above.

“PURCHASERS”	KPCB HOLDINGS, INC., as nominee
	By:	/s/ John Doerr
	Name:	John Doerr
	Title:	President
	Address:	2750 Sand Hill Road Menlo Park, CA 94025

[Signature Page to Bloom Energy Eighth Amended and Restated Registration Rights Agreement]

IN WITNESS WHEREOF, the undersigned have executed this Eighth Amended and Restated Registration Rights Agreement as of the date set forth above.

“PURCHASERS”	NEW ENTERPRISE ASSOCIATES 10, LIMITED PARTNERSHIP
	By:	NEA Partners 10, Limited Partnership its General Partner
	By:	/s/ Louis S. Citron
		Chief Legal Officer
	Name:	Louis S. Citron
	Address:	1954 Greenspring Dr, Suite 600
		Timonium, MD 21093
	NEA VENTURES 2003, LIMITED PARTNERSHIP
	By:	/s/ Louis S. Citron
		Chief Legal Officer
	Name:	Louis S. Citron
	Address:	1954 Greenspring Dr, Suite 600 Timonium, MD 21093

[Signature Page to Bloom Energy Eighth Amended and Restated Registration Rights Agreement]

IN WITNESS WHEREOF, the undersigned have executed this Eighth Amended and Restated Registration Rights Agreement as of the date set forth above.

“PURCHASERS”	MORGAN STANLEY PRINCIPAL INVESTMENT, INC.
	By:	/s/ Thomas E. Doster IV
	Name:	Thomas E. Doster IV
	Title:	Managing Director
	Address:	1585 Broadway NY, NY 10036

[Signature Page to Bloom Energy Eighth Amended and Restated Registration Rights Agreement]

IN WITNESS WHEREOF, the undersigned have executed this Eighth Amended and Restated Registration Rights Agreement as of the date set forth above.

“PURCHASERS”	MOBIUS TECHNOLOGY VENTURES VI L.P.
		SOFTBANK U.S. VENTURES VI L.P.
		MOBIUS TECHNOLOGY VENTURES     ADVISORS FUND VI L.P.
		MOBIUS TECHNOLOGY VENTURES     SIDE FUND VI L.P.
		By: Mobius VI LLC, General Partner
		By:	/s/ Jason A. Mendelson
		Name:	Jason A. Mendelson
		Title:	Managing Director
		Address:	1050 Walnut Street, Suite 210
			Boulder, CO 80302

[Signature Page to Bloom Energy Eighth Amended and Restated Registration Rights Agreement]

IN WITNESS WHEREOF, the undersigned have executed this Eighth Amended and Restated Registration Rights Agreement as of the date set forth above.

“PURCHASERS”	TJ RODGERS
	By:	/s/ TJ RODGERS

[Signature Page to Bloom Energy Eighth Amended and Restated Registration Rights Agreement]

EX-4

Exhibit 4.3

AMENDMENT NO. 1 TO

EIGHTH AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT

This Amendment No. 1 (the “Amendment”) to that certain Eighth Amended and Restated Registration Rights Agreement dated as of June 30, 2011 by and among Bloom Energy Corporation, a Delaware corporation (the “Company”), and the Holders named therein (the “Rights Agreement”) is made and entered into as of December 14, 2015 by and among the Company and the undersigned Holders of a majority of the outstanding shares of Registrable Securities (the “Majority Holders”). Capitalized terms used in this Amendment that are not otherwise defined herein shall have the respective meanings assigned to them in the Rights Agreement.

Recitals

WHEREAS, the Company proposes to issue and sell $165,000,000 in aggregate principal amount of its 5.0% Convertible Senior Secured PIK Notes due 2020 (the “Notes”) to the Investors (as defined in the Purchase Agreement) pursuant to (i) the indenture of even date herewith entered into by and among the Company, the Guarantors (as defined in the Purchase Agreement), and U.S. Bank National Association (the “Indenture”) and (ii) the Note Purchase Agreement of even date herewith (the “Purchase Agreement”) entered into by and among the Company, the Guarantors (as defined in the Purchase Agreement), and the Investors;

WHEREAS, as an inducement to the Investors to purchase the Notes, the Company and the Majority Holders wish to make the Investors a party to the Rights Agreement on the terms set forth herein;

WHEREAS, Section 20(a) of the Rights Agreement provides that the Company shall not enter into any agreement granting any holder or prospective holder of any securities of the Company registration rights with respect to such securities without the prior written consent of the Majority Holders unless (i) such new registration rights are piggyback registration rights that are subordinate in all respects to those granted to the original signatories to the Rights Agreement pursuant to Section 5 of the Rights Agreement, and (ii) such holder or prospective holder agrees to a standoff obligations provision no less restrictive than the one set forth in Section 10 of the Rights Agreement;

WHEREAS, Section 19 of the Rights Agreement permits the amendment of the Rights Agreement with the written consent of the Company and Majority Holders; and

WHEREAS, this Amendment shall constitute addendum signature pages for purposes of making the Investors party to the Rights Agreement.

Agreement

NOW, THEREFORE, the parties hereto hereby agree as follows:

1. The Majority Holders hereby consent to the grant to the Investors of registration rights pursuant to the Rights Agreement on the terms set forth herein.

2. Each of the Investors purchasing Notes at the Closing (as defined in the Purchase Agreement) or any subsequent closings shall be deemed a party to the Rights Agreement and a “Purchaser” thereunder; provided, however, that the restrictions set forth in Sections 2 and 3 of the Rights Agreement, the lockup agreement set forth in Section 10 of the Rights Agreement and the restrictive legends set forth in Section 11 of the Rights Agreement shall not be applicable to the Investors. The comparable obligations of the Investors shall be as set forth in the Restriction Agreement of even date herewith among the Company and each of the Investors (the “Restriction Agreement”) and Section 2.05(d) of the Indenture.

3. Except as expressly set forth in this Amendment, the Rights Agreement shall continue in full force and effect in accordance with its terms.

4. To the extent that any terms of this Amendment or the Rights Agreement conflict with the terms of the Indenture or the Restriction Agreement, the terms of the Indenture or Restriction Agreement, as applicable, shall prevail.

5. This Amendment may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. This Amendment shall be governed by and construed and enforced in accordance with the laws of the State of California, without reference to the conflict of laws provisions thereof.

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]

IN WITNESS WHEREOF, the parties hereto have caused this AMENDMENT NO. 1 TO THE EIGHTH AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT to be executed as of the date first above written.

“COMPANY”	BLOOM ENERGY CORPORATION a Delaware corporation
	By:	/s/ K.R. Sridhar
	Name:
	Title:

[Signature Page to Amendment No. 1 to Registration Rights Agreement]

IN WITNESS WHEREOF, the parties hereto have caused this AMENDMENT NO. 1 TO THE EIGHTH AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT to be executed as of the date first above written.

“HOLDERS”	NEW ENTERPRISE ASSOCIATES 10, LP
	By: NEA Partners 10, Limited Partnership        its General Partner
	By:	/s/ Louis S. Citron
		Chief Legal Officer, Attorney-in-Fact
	Print Name: Louis S. Citron
	NEA VENTURES 2003,
	LIMITED PARTNERSHIP
	By:	/s/ Louis S. Citron
		Vice President
	Print Name: Louis S. Citron

IN WITNESS WHEREOF, the parties hereto have caused this AMENDMENT NO. 1 TO THE EIGHTH AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT to be executed as of the date first above written.

“HOLDERS”	KPCB HOLDINGS, INC.
	as nominee
	By:	/s/ Paul M. Vronsky
	Name:	Paul M. Vronsky
	Title:	General Counsel

IN WITNESS WHEREOF, the parties hereto have caused this AMENDMENT NO. 1 TO THE EIGHTH AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT to be executed as of the date first above written.

“HOLDERS”	MORGAN STANLEY PRINCIPAL INVESTMENTS, INC.
	By:	/s/ Holly Neiweem
	Name:	Holly Neiweem
	Title:	Vice President

IN WITNESS WHEREOF, the parties hereto have caused this AMENDMENT NO. 1 TO THE EIGHTH AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT to be executed as of the date first above written.

“HOLDERS”

Date:	DAG VENTURES LLC
	By:	/s/ John Cadeddu
	Name:	John Cadeddu
	Title:

Date:	DAG VENTURES HOLDINGS LLC
	By:	DAG Ventures LLC, its Manager
	By:	/s/ John Cadeddu
	Name:	John Cadeddu
	Title:

Date:	DAG VENTURES QP, L.P.
	By:	DAG Ventures Management LLC, its General Partner
	By:	/s/ John Cadeddu
	Name:	John Cadeddu
	Title:

Date:	DAG VENTURES, L.P.
	By:	DAG Ventures Management LLC, its General Partner
	By:	/s/ John Cadeddu
	Name:	John Cadeddu
	Title:

[Signature Page to Amendment No. 1 to Registration Rights Agreement]

IN WITNESS WHEREOF, the parties hereto have caused this AMENDMENT NO. 1 TO THE EIGHTH AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT to be executed as of the date first above written.

“HOLDERS”

Date:	DAG VENTURES GP FUND, LLC
	By: DAG Ventures Management LLC, its Managing Member
	By:	/s/ John Cadeddu
	Name:	John Cadeddu
	Title:
Date:	DAG VENTURES COINVESTMENT FUND – AM, LLC
	By: DAG Ventures Management LLC, its Managing Member
	By:	/s/ John Cadeddu
	Name:	John Cadeddu
	Title:
Date:	DAG VENTURES COINVESTMENT FUND – ARMSTRONG EQUITY PARTNERS L.P. AND ARMSTRONG EQUITY ADVISORS L.P.
	By: DAG Ventures Management LLC, its General Partner
	By:	/s/ John Cadeddu
	Name:	John Cadeddu
	Title:

[Signature Page to Amendment No. 1 to Registration Rights Agreement]

IN WITNESS WHEREOF, the parties hereto have caused this AMENDMENT NO. 1 TO THE EIGHTH AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT to be executed as of the date first above written.

“HOLDERS”

Date:	DAG VENTURES PARTNERS COINVESTMENT FUND, LLC
	By: DAG Ventures Management LLC, its Managing Member
	By:	/s/ John Cadeddu
	Name:	John Cadeddu
	Title:
Date:	DAG VENTURES COINVESTMENT FUND – IA, L.P.
	By: DAG Ventures Management LLC, its General Partner
	By:	/s/ John Cadeddu
	Name:	John Cadeddu
	Title:
Date:	DAG COINVESTMENT FUND II-D, LLC
	By: DAG Ventures Management LLC, its Managing Member
	By:	/s/ John Cadeddu
	Name:	John Cadeddu
	Title:

[Signature Page to Amendment No. 1 to Registration Rights Agreement]

IN WITNESS WHEREOF, the parties hereto have caused this AMENDMENT NO. 1 TO THE EIGHTH AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT to be executed as of the date first above written.

“HOLDERS”

Date:	DAG VENTURES COINVESTMENT FUND – QUINN RIVER II, LLC
	By: DAG Ventures Management LLC, its Managing Member
	By:	/s/ John Cadeddu
	Name:	John Cadeddu
	Title:

[Signature Page to Amendment No. 1 to Registration Rights Agreement]

IN WITNESS WHEREOF, the parties hereto have caused this AMENDMENT NO. 1 TO THE EIGHTH AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT to be executed as of the date first above written.

“HOLDERS”

(Individual):	(Entity):
	1536053 Alberta Ltd.
	(Print/type name of entity)
	By:	/s/ Caroline Kowall
(Signature)	(Signature)
Name:	Name:	Caroline Kowall
(Please print or type full name)	(Please print or type full name)
Date:	Date:	December 14, 2015

IN WITNESS WHEREOF, the parties hereto have caused this AMENDMENT NO. 1 TO THE EIGHTH AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT to be executed as of the date first above written.

“HOLDERS”

(Individual):	(Entity):
	1536057 Alberta Ltd.
	(Print/type name of entity)
	By:	/s/ Caroline Kowall
(Signature)	(Signature)
Name:	Name:	Caroline Kowall
(Please print or type full name)	(Please print or type full name)
Date:	Date:	December 14, 2015

IN WITNESS WHEREOF, the parties hereto have caused this AMENDMENT NO. 1 TO THE EIGHTH AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT to be executed as of the date first above written.

“HOLDERS”

(Individual):	(Entity):
	NCD, SWIB OPPS LP
	(Print/type name of entity)
	By:	/s/ Thomas Vardell
(Signature)	(Signature)
Name:	Name:	Thomas Vardell, Managing Member
(Please print or type full name)	(Please print or type full name)
Date:	Date:	12-14-15

IN WITNESS WHEREOF, the parties hereto have caused this AMENDMENT NO. 1 TO THE EIGHTH AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT to be executed as of the date first above written.

“HOLDERS”

(Individual):	(Entity):
	NCD Investors, A Delaware Multiple Series LLC
	(Print/type name of entity)
	By:	/s/ Thomas Vardell
(Signature)	(Signature)
Name:	Name:	Thomas Vardell, Managing Member
(Please print or type full name)	(Please print or type full name)
Date:	Date:	12/14/15

IN WITNESS WHEREOF, the parties hereto have caused this AMENDMENT NO. 1 TO THE EIGHTH AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT to be executed as of the date first above written.

“HOLDERS”

(Individual):	(Entity):
	HSBC Investment Bank Holdings Ltd (was plc)
	(Print/type name of entity)
	By:	/s/ Michael James Kershaw
(Signature)	(Signature)
Name:	Name:	Michael James Kershaw
(Please print or type full name)	(Please print or type full name)
Date:	Date:	14/12/15

IN WITNESS WHEREOF, the parties hereto have caused this AMENDMENT NO. 1 TO THE EIGHTH AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT to be executed as of the date first above written.

“INVESTORS”

(Individual):	(Entity):
	(Print/type name of entity)
	By:
(Signature)	(Signature)
Name:	Name:
(Please print or type full name)	(Please print or type full name)
Date:	Date:

[Signature Page to Amendment No. 1 to Registration Rights Agreement]

EX-4

Exhibit 4.4

EXECUTION VERSION

BLOOM ENERGY CORPORATION

THE GUARANTORS PARTY HERETO,

as Guarantors

AND

U.S. BANK NATIONAL ASSOCIATION,

as Trustee and Collateral Agent

INDENTURE

Dated as of December 15, 2015

5.0% Convertible Senior Secured PIK Notes due 2020

TABLE OF CONTENTS

		Page
ARTICLE 1
DEFINITIONS
Section 1.01	Definitions.		1
Section 1.02	References to Interest.		27
ARTICLE 2
ISSUE, DESCRIPTION, EXECUTION, REGISTRATION AND EXCHANGE OF NOTES
Section 2.01	Designation and Amount.		27
Section 2.02	Form of Notes.		27
Section 2.03	Date and Denomination of Notes; Payments of Interest and Defaulted Amounts.		28
Section 2.04	Execution, Authentication and Delivery of Notes.		31
Section 2.05	Exchange and Registration of Transfer of Notes; Restrictions on Transfer; Depositary.		32
Section 2.06	Mutilated, Destroyed, Lost or Stolen Notes.		40
Section 2.07	Temporary Notes.		41
Section 2.08	Cancellation of Notes Paid, Converted, Etc.		41
Section 2.09	CUSIP Numbers.		42
Section 2.10	Additional Notes; Repurchases.		42
ARTICLE 3
SATISFACTION AND DISCHARGE
Section 3.01	Satisfaction and Discharge.		42
ARTICLE 4
PARTICULAR COVENANTS OF THE COMPANY AND THE GUARANTORS
Section 4.01	Payment of Principal and Interest.		43
Section 4.02	Maintenance of Office or Agency.		43
Section 4.03	Appointments to Fill Vacancies in Trustee’s Capacity.		44
Section 4.04	Provisions as to Paying Agent.		44
Section 4.05	Existence.		46
Section 4.06	Quarterly and Annual Reports and Rule 144A Information Requirement.		46
Section 4.07	Stay, Extension and Usury Laws.		48

1

Section 4.08	Compliance Certificate; Statements as to Defaults.	48
Section 4.09	Further Instruments and Acts.	49
Section 4.10	Restrictive Legend.	49
Section 4.11	Qualified IPO.	50
Section 4.12	Lock-up Release Date.	50
Section 4.13	Limitation on Investments.	50
Section 4.14	Maintenance of Collateral.	50
Section 4.15	Adjustment to Conversion Rate.	50
Section 4.16	Mortgages.	51
Section 4.17	Additional Guarantors.	52
Section 4.18	Further Assurances.	52
Section 4.19	Intercreditor Agreement.	52
ARTICLE 5
LISTS OF HOLDERS AND REPORTS BY THE COMPANY AND THE TRUSTEE
Section 5.01	Lists of Holders.	52
Section 5.02	Preservation and Disclosure of Lists.	53
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01	Events of Default.	53
Section 6.02	Acceleration; Rescission and Annulment.	55
Section 6.03	Payments of Notes on Default; Suit Therefor.	56
Section 6.04	Additional Interest.	57
Section 6.05	Application of Monies Collected by Trustee.	58
Section 6.06	Proceedings by Holders.	59
Section 6.07	Proceedings by Trustee.	60
Section 6.08	Remedies Cumulative and Continuing.	60
Section 6.09	Direction of Proceedings and Waiver of Defaults by Holders.	60
Section 6.10	Notice of Defaults.	61
Section 6.11	Undertaking to Pay Costs.	61
ARTICLE 7
CONCERNING THE TRUSTEE
Section 7.01	Duties and Responsibilities of Trustee.	62
Section 7.02	Reliance on Documents, Opinions, Etc.	64
Section 7.03	No Responsibility for Recitals, Etc.	65

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Section 7.04	Trustee, Paying Agents, Conversion Agents, Collateral Agent or Note Registrar May Own Notes.	65
Section 7.05	Monies to Be Held in Trust.	65
Section 7.06	Compensation and Expenses of Trustee.	66
Section 7.07	Officer’s Certificate as Evidence.	67
Section 7.08	Eligibility of Trustee.	67
Section 7.09	Resignation or Removal of Trustee.	67
Section 7.10	Acceptance by Successor Trustee.	68
Section 7.11	Succession by Merger, Etc.	69
Section 7.12	Trustee’s Application for Instructions from the Company.	69
ARTICLE 8
CONCERNING THE HOLDERS
Section 8.01	Action by Holders.	70
Section 8.02	Proof of Execution by Holders.	70
Section 8.03	Who Are Deemed Absolute Owners.	70
Section 8.04	Company-Owned Notes Disregarded.	71
Section 8.05	Revocation of Consents; Future Holders Bound.	71
ARTICLE 9
HOLDERS’ MEETINGS
Section 9.01	Purpose of Meetings.	71
Section 9.02	Call of Meetings by Trustee.	72
Section 9.03	Call of Meetings by Company or Holders.	72
Section 9.04	Qualifications for Voting.	72
Section 9.05	Regulations.	72
Section 9.06	Voting.	73
Section 9.07	No Delay of Rights by Meeting.	73
ARTICLE 10
SUPPLEMENTAL INDENTURES
Section 10.01	Supplemental Indentures Without Consent of Holders.	74
Section 10.02	Supplemental Indentures with Consent of Holders.	75
Section 10.03	Effect of Amendments, Supplements Or Waivers.	76
Section 10.04	Notation on Notes.	77
Section 10.05	Evidence of Compliance of Amendment, Supplement Or Waiver to Be Furnished Trustee.	77

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	ARTICLE 11
	CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
Section 11.01	Company May Consolidate, Etc. on Certain Terms.	77
Section 11.02	Successor Corporation to Be Substituted.	78
	ARTICLE 12
	IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
Section 12.01	Indenture and Notes Solely Corporate Obligations.	78
	ARTICLE 13
	OPTIONAL REDEMPTION
Section 13.01	Provisional Redemption.	79
Section 13.02	Change of Control Redemption.	79
Section 13.03	Redemption Procedures.	80
Section 13.04	No Sinking Fund.	81
	ARTICLE 14
	CONVERSION OF NOTES
Section 14.01	Conversion upon Change of Control prior to the Qualified IPO.	81
Section 14.02	Conversion on or after the earlier to occur of the Qualified IPO and September 1, 2020.	82
Section 14.03	Conversion Procedure; Settlement Upon Conversion.	82
Section 14.04	Adjustment to Conversion Rate upon Conversion upon a Make-Whole Fundamental Change on or after the Qualified IPO or a Provisional Redemption.	85
Section 14.05	Adjustment of Conversion Rate.	87
Section 14.06	Adjustments of Prices.	100
Section 14.07	Shares to Be Reserved.	100
Section 14.08	Effect of Recapitalizations, Reclassifications and Changes of the Common Stock.	100
Section 14.09	Certain Covenants.	102
Section 14.10	Responsibility of Trustee.	102
Section 14.11	Notice to Holders Prior to Certain Actions.	103
Section 14.12	Shareholder Rights Plans.	103

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ARTICLE 15
REPURCHASE OF NOTES AT OPTION OF HOLDERS
Section 15.01	Repurchase at the Option of Holders on the Specified Repurchase Date.	104
Section 15.02	Repurchase at Option of Holders Upon a Fundamental Change on or after the Qualified IPO.	105
Section 15.03	Repurchase at Option of Holders Upon a Change of Control Prior to the Qualified IPO.	106
Section 15.04	Withdrawal of Fundamental Change Repurchase Notice, Specified Repurchase Date Notice or Change of Control Repurchase Notice.	108
Section 15.05	Deposit of Fundamental Change Repurchase Price, Specified Repurchase Date Price and Change of Control Repurchase Price.	108
Section 15.06	Covenant to Comply with Applicable Laws Upon Repurchase of Notes.	109
Section 15.07	Repurchase Procedures.	110
ARTICLE 16
GUARANTEES
Section 16.01	Note Guarantees.	112
Section 16.02	Execution and Delivery of Note Guarantee.	113
Section 16.03	Guarantors may Consolidate, etc., on Certain Terms.	113
Section 16.04	Release of Note Guarantees.	114
Section 16.05	Limitation on Guarantor Liability.	114
Section 16.06	“Trustee” to Include Paying Agent.	115
ARTICLE 17
COLLATERAL AND SECURITY
Section 17.01	Security Documents.	115
Section 17.02	Recording and Opinions.	115
Section 17.03	Release of Collateral.	117
Section 17.04	Specified Releases of Collateral.	117
Section 17.05	Release upon Satisfaction and Discharge or Amendment.	118
Section 17.06	Form and Sufficiency of Release and Subordination.	118
Section 17.07	Purchaser Protected.	119
Section 17.08	Authorization of Actions to be Taken by the Collateral Agent Under the Security Documents.	119
Section 17.09	Authorization of Receipt of Funds by the Trustee Under the Security Documents.	120
Section 17.10	Action by the Collateral Agent.	120

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Section 17.11	Compensation and Indemnity.	121
Section 17.12	Post-Closing Collateral.	122
ARTICLE 18
MISCELLANEOUS PROVISIONS
Section 18.01	Provisions Binding on Company’s Successors.	123
Section 18.02	Official Acts by Successor Corporation.	123
Section 18.03	Addresses for Notices, Etc.	123
Section 18.04	Governing Law; Jurisdiction.	124
Section 18.05	Evidence of Compliance with Conditions Precedent; Certificates and Opinions of Counsel to Trustee.	124
Section 18.06	Legal Holidays.	125
Section 18.07	Intercreditor Agreement.	125
Section 18.08	Benefits of Indenture.	125
Section 18.09	Table of Contents, Headings, Etc.	125
Section 18.10	Authenticating Agent.	125
Section 18.11	Execution in Counterparts.	126
Section 18.12	Severability.	126
Section 18.13	Waiver of Jury Trial.	126
Section 18.14	Force Majeure.	127
Section 18.15	Calculations.	127
Section 18.16	USA PATRIOT Act.	127

EXHIBITS

EXHIBIT A	FORM OF FACE OF NOTE	A-1
EXHIBIT B	FORM OF RESTRICTION AGREEMENT	B-1
EXHIBIT C	FORM OF SUPPLEMENTAL INDENTURE	C-1
EXHIBIT D	FORM OF NOTATION OF GUARANTEE	D-1
EXHIBIT E	FORM OF INTERCREDITOR AGREEMENT	E-1

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INDENTURE dated as of December 15, 2015, among BLOOM ENERGY CORPORATION, INC., a Delaware corporation, as issuer (the “Company,” as more fully set forth in Section 1.01), the Guarantors (as defined herein) from time to time party hereto and U.S. BANK NATIONAL ASSOCIATION, a national banking association, as trustee (the “Trustee,” as more fully set forth in Section 1.01) and as collateral agent (in such capacity, the “Collateral Agent,” as more fully set forth in Section 1.01).

W I T N E S S E T H:

WHEREAS, for its lawful corporate purposes, the Company has duly authorized the issuance of its 5.0% Convertible Senior Secured PIK Notes due 2020 (the “Notes”), initially in an aggregate principal amount not to exceed $160,000,000, and in order to provide the terms and conditions upon which the Notes are to be authenticated, issued and delivered, the Company has duly authorized the execution and delivery of this Indenture;

WHEREAS, the Form of Note, the certificate of authentication to be borne by each Note, the Form of Notice of Conversion, the Form of Fundamental Change Repurchase Notice, Form of Specified Repurchase Date Notice, Form of Change of Control Repurchase Notice and the Form of Assignment and Transfer to be borne by the Notes are to be substantially in the forms hereinafter provided; and

WHEREAS, all acts and things necessary to make the Notes, when executed by the Company and authenticated and delivered by the Trustee or a duly authorized authenticating agent, as in this Indenture provided, the valid, binding and legal obligations of the Company, and this Indenture a valid agreement according to its terms, have been done and performed, and the execution of this Indenture and the issuance hereunder of the Notes have in all respects been duly authorized.

NOW, THEREFORE, THIS INDENTURE WITNESSETH:

That in order to declare the terms and conditions upon which the Notes are, and are to be, authenticated, issued and delivered, and in consideration of the premises and of the purchase and acceptance of the Notes by the Holders thereof, the Company and the Guarantors, if any, covenant and agree with the Trustee and the Collateral Agent for the equal and proportionate benefit of the respective Holders from time to time of the Notes (except as otherwise provided below), as follows:

ARTICLE 1

DEFINITIONS

Section 1.01 Definitions. The terms defined in this Section 1.01 (except as herein otherwise expressly provided or unless the context otherwise requires) for all purposes of this Indenture and of any indenture supplemental hereto shall have the respective meanings specified in this Section 1.01. The words “herein,” “hereof,” “hereunder” and words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision. The terms defined in this Article include the plural as well as the singular.

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“Acquisition” means (i) any consolidation or merger of the Company with or into any other corporation or other entity or person (but excluding any merger effected solely for the purpose of reincorporating into another state), or any other corporate reorganization (any of such transactions or series of such transactions, a “combination transaction”), in which the stockholders of the Company immediately prior to such combination transaction, own less than 50% of the voting power of the surviving or successor entity or its parent immediately after such combination transaction, (ii) any transaction or series of related transactions to which the Company is a party in which in excess of 50% of the Company’s voting power is transferred (excluding any such transaction to the extent it does not also involve the transfer of the economic rights associated with a majority of the Common Stock on a fully-diluted basis) or (iii) any sale, lease, or other disposition of all or substantially all of the assets of the Company. Notwithstanding the foregoing, no transaction or series of related transactions principally for bona fide equity financing purposes in which cash is received by the Company or indebtedness of the Company is cancelled or converted, or a combination thereof, nor the transfer by any shareholder of shares of the Company’s capital stock to any third party in a transaction or series of related transactions to which the Company is not a party, shall be deemed an Acquisition.

“Additional Interest” means all amounts, if any, payable pursuant to Section 4.10 and Section 6.04, as applicable.

“Additional Notes” means additional Notes (other than the Initial Notes) issued under this Indenture in accordance with Section 2.10 hereof, as part of the same series as the Notes issued as Initial Notes.

“Additional Shares” shall have the meaning specified in Section 14.04(a).

“Affiliate” of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, “control,” when used with respect to any specified Person means the power to direct or cause the direction of the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.

“Available Eligible Assets” shall have the meaning specified in Section 4.14.

“Bankruptcy Code” means Title 11 of the United States Code entitled “Bankruptcy,” as now and hereinafter in effect, or any successor statute.

“Bankruptcy Law” means the Bankruptcy Code and any other federal, state or foreign bankruptcy, insolvency, receivership or similar law.

“Board of Directors” means the board of directors of the Company or a committee of such board duly authorized to act for it hereunder.

“Board Resolution” means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board of Directors, and to be in full force and effect on the date of such certification, and delivered to the Trustee.

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“Book Value” with respect to any asset or liability of a Person on any date shall mean the net value of such asset or liability that would be reflected on a balance sheet of such Person on such date prepared in accordance with GAAP, net of deductions and contra-asset and contra- liability accounts that would be properly reflected in accordance with GAAP.

“Business Day” means any day other than a Saturday, a Sunday or other day on which banking institutions in New York City or, with respect to any payment on a Note, the place of payment, are authorized or required by law, regulation or executive order to close or remain closed.

“Calculation Period” shall have the meaning specified in the definition of “Transaction Price.”

“Capital Lease Obligation” means, with respect to any Person, the obligations of such Person to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as capital leases on a balance sheet of such Person under GAAP; and, for the purposes of this Indenture, the amount of such obligations at any time shall be the capitalized amount thereof at such time determined in accordance with GAAP.

“Capital Stock” means, for any entity, any and all shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interests in (however designated) stock, limited liability company interests or other equity interests issued by that entity, but shall not include any debt securities convertible into or exchangeable for any securities otherwise constituting Capital Stock pursuant to this definition.

“Cash Interest” shall have the meaning specified in Section 2.03(c)(i).

“Change of Control” means (i) any combination transaction in which the stockholders of the Company immediately prior to such combination transaction, own less than 50% of the voting power of the surviving or successor entity or its parent immediately after such combination transaction, (ii) any transaction or series of related transactions to which the Company is a party in which in excess of 50% of the Company’s voting power is transferred or (iii) any sale, lease, or other disposition of all or substantially all of the assets of the Company. Notwithstanding the foregoing, no transaction or series of related transactions principally for bona fide equity financing purposes in which cash is received by the Company or indebtedness of the Company is cancelled or converted, or a combination thereof, nor the transfer by any shareholder of shares of the Company’s capital stock to any third party in a transaction or series of related transactions to which the Company is not a party, shall be deemed a Change of Control.

“Change of Control Company Notice” shall have the meaning specified in Section 15.03(b).

“Change of Control Conversion Obligation” shall have the meaning specified in Section 14.01.

“Change of Control Conversion Rate” shall have the meaning specified in Section 14.01.

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Change of Control Effective Date” shall have the meaning specified in Section 14.01.

“Change of Control Maximum Conversion Price” means $1,000 divided by the Change of Control Maximum Conversion Rate (taken out to eight decimal places).

“Change of Control Maximum Conversion Rate” shall have the meaning specified in Section 14.05.

“Change of Control Redemption” shall have the meaning specified in Section 13.02.

“Change of Control Redemption Notice”, with respect to a Change of Control Redemption Right Event, shall mean the Company’s notice to all Holders of Notes, the Trustee, the Conversion Agent (if other than the Trustee) and the Paying Agent (in the case of a Paying Agent other than the Trustee) specifying whether the Company elects to make, or irrevocably elects not to make, a Change of Control Redemption in connection with such Change of Control Redemption Right Event. If the Company elects to make a Change of Control Redemption in connection with such Change of Control Redemption Right Event, such notice shall also state the Change of Control Redemption Price.

“Change of Control Redemption Price” means per $1,000 principal amount of Notes (i) in the event that the shares of Series G Preferred Stock remain outstanding following the Change of Control Redemption Right Event, a number of shares of a new series of preferred stock of the Company or the surviving company in such Change of Control Redemption Right Event, as applicable, equal to the then-applicable Change of Control Maximum Conversion Rate with terms identical to the terms of the Series G Preferred Stock (other than (a) the conversion rate for the conversion of such new series of preferred stock into Common Stock, which shall be initially on a one-to-one basis, and (b) liquidation preference, which shall be equal to the Change of Control Maximum Conversion Price for such Change of Control Redemption Right Event) and/or (ii) in the event that the shares of Series G Preferred Stock are converted into consideration consisting of cash, securities or property in connection with such Change of Control Redemption Right Event, the same amount and mix of such consideration issuable upon conversion of such Series G Preferred Stock (for this purpose assuming that each $1,000 principal amount of the Notes converts into a number of shares of Series G Preferred Stock equal to $1,000 multiplied by the quotient equal to (x) the then-applicable Change of Control Maximum Conversion Rate (expressed as a fraction, the numerator of which is the number of shares of Common Stock issuable at such Change of Control Maximum Conversion Rate and denominator of which is $1,000 in principal amount of Notes) divided by (y) the then-applicable number of shares of Common Stock issuable upon conversion of each share of Series G Preferred Stock), as determined by the Company in a good faith and commercially reasonable manner.

“Change of Control Redemption Right Event” means the occurrence or effectiveness prior to the Qualified IPO of a Change of Control that constitutes a bona fide business transaction to which the Company is a party involving an Acquisition that is not effected for the principal purpose of raising capital or causing a change in the Company’s capital structure.

“Change of Control Repurchase Date” shall have the meaning specified in Section 15.03(a).

4

“Change of Control Repurchase Expiration Time” shall have the meaning specified in Section 15.07(a)(i).

“Change of Control Repurchase Notice” shall have the meaning specified in Section 15.07(a)(i).

“Change of Control Repurchase Price” shall have the meaning specified in Section 15.03(a).

“Clause A Distribution” shall have the meaning specified in Section 14.05(c).

“Clause B Distribution” shall have the meaning specified in Section 14.05(c).

“Clause C Distribution” shall have the meaning specified in Section 14.05(c).

“close of business” means 5:00 p.m. (New York City time).

“Collateral” has the meaning ascribed to such term in the Security Documents.

“Collateral Agent” means U.S. Bank National Association in its capacity as collateral agent under the Security Documents, together with its successors in such capacity.

“Collateral Value”, as of a date, means the sum, without duplication, as reasonably determined by the Company in a good faith manner, of (i) the Book Value of the Eligible Assets owned by the Company (excluding the equity interests of Pledged Foreign Subsidiaries and Guarantors) that secure the Notes pursuant to a perfected (under U.S. law) first priority Lien for the benefit of the Holders, (ii) the Book Value of Eligible Assets owned by Guarantors (excluding the equity interests of Pledged Foreign Subsidiaries and other Guarantors) that secure the Notes pursuant to a perfected first priority Lien for the benefit of the Holders, (iii) 65% of the Book Value of the assets of the Pledged Foreign Subsidiaries, net of the liabilities of the Pledged Foreign Subsidiaries (provided that there shall be excluded from such calculation any Pledged Foreign Subsidiary with a net Book Value on such date that is less than zero) and (iv) the deemed Book Value (determined as hereinafter provided) of the portion of Eligible Assets consisting of Intellectual Property owned by the Company or any Subsidiary that secure the Notes pursuant to a perfected (under U.S. law) first priority Lien for the benefit of the Holders (subject to any Intercreditor Agreement in respect thereof entered into in compliance with the Indenture Documents). For purposes of the foregoing, the Book Value of Eligible Assets consisting of Intellectual Property owned by the Company on the Issue Date shall be deemed to be $200 million. After the Issue Date, the deemed Book Value of assets consisting of Intellectual Property owned by the Company or any Subsidiary shall be, as reasonably determined by the Company in a good faith manner, deemed to be (a) decreased by the fair market value of any such Intellectual Property or rights in such Intellectual Property that are assigned, exclusively licensed, licensed outside the ordinary course of business, sold, conveyed or otherwise transferred to another party by the Company or such Subsidiary, as applicable, (b) increased by the fair market value of any such Intellectual Property or rights in such Intellectual Property that are assigned, exclusively licensed, licensed outside the ordinary course of business, sold, conveyed or otherwise transferred to the Company or such Subsidiary, as applicable, by the Company or a Subsidiary of the Company, as the case may be, and (c) decreased by the Book Value of any Indebtedness secured by a Lien on Intellectual Property that is not for the benefit of the Holders in their capacities as such.

5

“combination transaction” shall have the meaning specified in the definition of Acquisition.

“Commission” means the U.S. Securities and Exchange Commission.

“Common Equity” of any Person means Capital Stock of such Person that is generally entitled (a) to vote in the election of directors of such Person or (b) if such Person is not a corporation, to vote or otherwise participate in the selection of the governing body, partners, managers or others that will control the management or policies of such Person.

“Common Stock” means the common stock of the Company, par value $0.0001 per share, at the Issue Date, subject to Section 14.08.

“Company” shall have the meaning specified in the first paragraph of this Indenture, and subject to the provisions of Article 11, shall include its successors and assigns.

“Company Order” means a written order of the Company, signed by one of its Officers and delivered to the Trustee.

“Competitor” means a competitor of the Company, as reasonably determined by the Company within five (5) Business Days after any request by a Holder for such determination to be made.

“Conversion Agent” shall have the meaning specified in Section 4.02.

“Conversion Date” shall have the meaning specified in Section 14.03(c).

“Conversion Obligation” shall have the meaning specified in Section 14.02.

“Conversion Price” means as of any time, $1,000, divided by the Conversion Rate as of such time.

“Conversion Rate” shall have the meaning specified in Section 14.02.

“Corporate Trust Office” means the designated office of the Trustee at which at any time its corporate trust business shall be administered for purposes of this Indenture, which office at the Issue Date is located at 633 West Fifth Street, Los Angeles, CA 90071, Attn: B. Scarbrough (Bloom Energy Corporation Convertible Senior Secured PIK Notes due 2020), or such other address as the Trustee may designate from time to time by notice to the Holders and the Company, or the principal corporate trust office of any successor trustee (or such other address as such successor trustee may designate from time to time by notice to the Holders and the Company).

6

“Custodian” means the Trustee, as custodian for The Depository Trust Company, with respect to the Global Notes, or any successor entity appointed by the Company as custodian for the Depositary under this Indenture.

“Default” means any event that is, or after notice or passage of time, or both, would be, an Event of Default.

“Defaulted Amounts” means any amounts on any Note (including, without limitation, the Fundamental Change Repurchase Price, Specified Repurchase Date Price, Change of Control Repurchase Price, Provisional Redemption Price, principal and interest) that are payable but are not punctually paid or duly provided for.

“Delaware Property” means the land, building and other improvements located at 200 Christina Parkway, Newark, Delaware 19713 and subject to that certain Ground Lease by and between 1743 Holdings, LLC, as landlord, and Diamond State Generation Partners, LLC, as tenant.

“Deposit Account Control Agreement” has the meaning specified in the Security Agreement.

“Depositary” means, with respect to each Global Note, the Person specified in Section 2.05(c) as the Depositary with respect to such Notes, until a successor shall have been appointed and become such pursuant to the applicable provisions of this Indenture, and thereafter, “Depositary” shall mean or include such successor.

“Determination Date” has the meaning set forth in the definition of “Permitted Investments”.

“Disputing Holders” shall have the meaning specified in the definition of Transaction Price.

“Distributed Property” shall have the meaning specified in Section 14.05(c).

“DTC” shall mean The Depository Trust Company, a New York corporation.

“Effective Date” means the first date on which shares of the Common Stock trade on the applicable exchange, in the applicable market or otherwise, regular way, reflecting the relevant share split or share combination, as applicable.

“Eligible Assets” means all assets of the Company and the Guarantors (whether currently owned or acquired after the date of this Indenture) excluding (a) property as to which Liens are outstanding on the Issue Date to holders of debt for borrowed money, capital lease obligations or purchase money indebtedness (other than (i) Silicon Valley Bank, including pursuant to the Loan and Security Agreement, dated as of March 30, 2012, by and between Silicon Valley Bank and Bloom Energy Corporation and (ii) Liens arising under the Security Documents) so long as such Liens are in effect, (b) any Capital Stock outstanding on the Issue Date and pledged to holders of debt for borrowed money, capital lease obligations or purchase money indebtedness (other than Silicon Valley Bank, including pursuant to the Loan and Security Agreement, dated as of March 30,

7

2012, by and between Silicon Valley Bank and Bloom Energy Corporation and (ii) Liens arising under the Security Documents) so long as such Liens are in effect, (c) Capital Stock in PPA Companies, (d) any Capital Stock in any Foreign Subsidiary of the Company to the extent that the pledge of such Capital Stock would cause the amount of Capital Stock of such Foreign Subsidiary pledged to secure obligations of the Company to exceed 65% of the outstanding combined voting power of all classes of voting equity interests in such Foreign Subsidiary, (e) any Capital Stock in any Project Entities, (f) following the Qualified IPO and release of the security interest of the Collateral Agent therein pursuant to Section 17.04(a)(v), Intellectual Property and (g) Excluded Assets (as defined in the Security Agreement).

“Event of Default” shall have the meaning specified in Section 6.01.

“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.

“Ex-Dividend Date” means the first date on which shares of the Common Stock trade on the applicable exchange, in the applicable market or otherwise, regular way, without the right to receive the issuance, dividend or distribution in question, from the Company or, if applicable, from the seller of Common Stock on such exchange, market or otherwise (in the form of due bills or otherwise) as determined by such exchange, market or otherwise.

“Existing Preferred Stock” shall have the meaning specified in Section 4.15.

“Extraordinary Transaction” shall mean (i) any transfer of Eligible Assets outside the ordinary course of business and (ii) any material loss or destruction of Eligible Assets from fire, hazard or other calamity to the extent that the Company or any Subsidiary of the Company does not have the benefit of insurance to cover such loss. For the avoidance of doubt, and without limiting the generality of the foregoing, one or more dispositions of inventory to customers or dispositions of obsolete or worn-out equipment, in each case, consistent with the Company’s past practice, shall not constitute an Extraordinary Transaction.

“Financial Statement Availability Date” with respect to any fiscal quarter, shall mean (i) prior to a Qualified IPO, the 45th calendar day following the end of such fiscal quarter and (ii) after a Qualified IPO, the date on which a 10-Q or 10-K containing financial statements for such fiscal quarter is first filed with the Commission.

“Foreign Subsidiary” means, with respect to any Person, (a) any direct or indirect Subsidiary of such Person that is not organized or existing under the laws of the United States, any state thereof or the District of Columbia and is a “controlled foreign corporation” for U.S. federal income tax purposes, (b) any direct or indirect Subsidiary of such Person if substantially all of its assets consists of Capital Stock of one or more direct or indirect Subsidiaries described in clause (a) of this definition or of such Capital Stock and intercompany obligations of such Subsidiaries described in clause (a) of this definition or (c) any Subsidiary of a Subsidiary described in clauses (a) or (b) of this definition.

“Form of Assignment and Transfer” means the “Form of Assignment and Transfer” attached as Attachment 5 to the Form of Note attached hereto as Exhibit A.

8

“Form of Change of Control Repurchase Notice” means the “Form of Change of Control Repurchase Notice” attached as Attachment 4 to the Form of Note attached hereto as Exhibit A.

“Form of Fundamental Change Repurchase Notice” means the “Form of Fundamental Change Repurchase Notice” attached as Attachment 2 to the Form of Note attached hereto as Exhibit A.

“Form of Note” means the “Form of Note” attached hereto as Exhibit A.

“Form of Notice of Conversion” means the “Form of Notice of Conversion” attached as Attachment 1 to the Form of Note attached hereto as Exhibit A.

“Form of Specified Repurchase Date Notice” means the “Form of Specified Repurchase Date Notice” attached as Attachment 3 to the Form of Note attached hereto as Exhibit A.

“Fundamental Change” shall be deemed to have occurred if any of the following occurs on or after the Qualified IPO and prior to the Maturity Date:

(a) other than as described in clause (b) below, a “person” or “group” within the meaning of Section 13(d) of the Exchange Act, other than the Company, its direct or indirect Wholly-Owned Subsidiaries and the employee benefit plans of the Company and its direct or indirect Wholly-Owned Subsidiaries, files a Schedule TO or any schedule, form or report under the Exchange Act disclosing that such person or group has become the direct or indirect “beneficial owner,” as defined in Rule 13d-3 under the Exchange Act, of the Company’s Common Equity representing more than 50% of the voting power of the Company’s Common Equity;

(b) the consummation of (i) any recapitalization, reclassification or change of the Common Stock (other than changes resulting from a subdivision or combination) as a result of which the Common Stock would be converted into, or exchanged for, stock, other securities, other property or assets; (ii) any share exchange, consolidation, merger or similar transaction involving the Company pursuant to which the Common Stock will be converted into cash, securities or other property or assets; or (iii) any sale, conveyance, lease or other transfer or similar transaction in one transaction or a series of transactions of all or substantially all of the consolidated assets of the Company and its Subsidiaries, taken as a whole, to any Person other than one or more of the Company’s direct or indirect Wholly-Owned Subsidiaries; provided, however, that a transaction described in clause (i) or (ii) in which the holders of all classes of the Company’s Common Equity immediately prior to such transaction own, directly or indirectly, more than 50% of all classes of Common Equity of the continuing or surviving corporation or transferee or the parent thereof immediately after such transaction in substantially the same proportions as such ownership immediately prior to such transaction shall not be a Fundamental Change pursuant to this clause (b);

(c) the stockholders of the Company approve any plan or proposal for the liquidation or dissolution of the Company; or

(d) the Common Stock (or other common stock underlying the Notes) ceases to be listed or quoted on any Permitted Exchange;

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provided, however, that a transaction or transactions described in clause (b) above shall not constitute a Fundamental Change, if at least 90% of the consideration received or to be received by holders of the Common Stock, excluding cash payments for fractional shares and cash payments made in respect of statutory appraisal rights, in connection with such transaction or transactions consists of shares of common stock that are listed or quoted on any Permitted Exchange or will be so listed or quoted when issued or exchanged in connection with such transaction or transactions and as a result of such transaction or transactions such consideration becomes Reference Property for the Notes, excluding cash payments for fractional shares and cash payments made pursuant to statutory appraisal rights (subject to the provisions set forth under Section 14.03).

If any transaction occurs in which the Common Stock is converted into, or exchanged for, Reference Property consisting of Common Equity of another entity, following completion of the related Make-Whole Fundamental Change Period, if any, references to the Company in the definition of “Fundamental Change” above shall instead be references to such other entity.

“Fundamental Change Company Notice” shall have the meaning specified in Section 15.02(b).

“Fundamental Change Repurchase Expiration Time” shall have the meaning specified in Section 15.07(a)(i).

“Fundamental Change Repurchase Date” shall have the meaning specified in Section 15.02(a).

“Fundamental Change Repurchase Notice” shall have the meaning specified in Section 15.07(a)(i).

“Fundamental Change Repurchase Price” shall have the meaning specified in Section 15.02(a).

“GAAP” means generally accepted accounting principles in the United States of America as in effect from time to time, including, without limitation, those set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as approved by a significant segment of the accounting profession. Notwithstanding the foregoing, for purposes of determining compliance with any provision herein, the determination of whether a lease is to be treated as an operating lease or capital lease shall be made without giving effect to any change in accounting for leases pursuant to GAAP resulting from the implementation of proposed Accounting Standards Update (ASU) Leases (Topic 840) issued August 17, 2010, or any successor proposal.

“Global Note” shall have the meaning specified in Section 2.05(b).

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“Guarantee” means any obligation, contingent or otherwise, of any Person directly or indirectly guaranteeing any Indebtedness of any other Person and any obligation, direct or indirect, contingent or otherwise, of such Person:

(a) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness of such other Person (whether arising by virtue of partnership arrangements, or by agreements to keep-well, to purchase assets, goods, securities or services, to take-or-pay or to maintain financial statement conditions or otherwise); or

(b) entered into for the purpose of assuring in any other manner the obligee against loss in respect thereof (in whole or in part);

provided, however, that the term “Guarantee” shall not include endorsements for collection or deposit in the ordinary course of business. The term “Guarantee” used as a verb has a corresponding meaning.

“Guarantor” means (a) each Subsidiary of the Company that is not a Foreign Subsidiary and that executes and delivers this Indenture on the Issue Date, and (b) each Subsidiary of the Company that (i) executes a supplemental indenture with the Company and the Trustee substantially in the form of Exhibit C attached hereto and delivers it to the Trustee, pursuant to which such Subsidiary shall unconditionally Guarantee, on a senior secured basis, all of the Company’s Obligations under the Indenture Documents on the terms set forth in this Indenture and the Security Documents until the Note Guarantee of such Person has been released in accordance with the provisions of this Indenture and (ii) that takes such actions as are necessary to grant to the Collateral Agent for the benefit of the Holders a first priority perfected security interest, subject to Permitted Priority Liens and the Intercreditor Agreement, in the assets of such Subsidiary, only to the extent such assets would be required to be pledged as Collateral assuming such Subsidiary were a Grantor (as defined in the Security Agreement) under the Security Agreement (provided however, that for the avoidance of doubt, such Subsidiary shall not be a Guarantor for purposes of the definition of Permitted Investment if prohibitions imposed by such Subsidiary’s organizational documents or governing documents, including such Subsidiary’s agreements with stockholders, partnership agreements, limited liability company agreements or similar instruments, materially restrict the ability of such Subsidiary to pledge such Collateral that would, absent such prohibition, be pledged pursuant to the Security Agreement), including the filing of financing statements in such jurisdictions as may be required by the Security Documents or by law and, in each case, their respective successors and assigns.

“Hedging Obligations” means, with respect to any specified Person, the obligations of such Person under:

(a) interest rate swap agreements (whether from fixed to floating or from floating to fixed), interest rate cap agreements and interest rate collar agreements;

(b) other agreements or arrangements designed to manage interest rates or interest rate risk; and

(c) other agreements or arrangements designed to protect such Person against fluctuations in currency exchange rates or commodity prices.

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“Holder,” as applied to any Note, or other similar terms (but excluding the term “beneficial holder”), means any Person in whose name at the time a particular Note is registered on the Note Register.

“Indebtedness” means, with respect to any Person on any date of determination (without duplication):

(a) the principal (or, with respect to such Indebtedness issued with original issue discount, the accreted value) in respect of (A) indebtedness of such Person for money borrowed and (B) indebtedness evidenced by notes, debentures, bonds or other similar instruments for the payment of which such Person is responsible or liable, including, in each case, any premium on such indebtedness to the extent such premium has become due and payable;

(b) all Capital Lease Obligations of such Person;

(c) the principal component of all obligations of such Person issued or assumed as the deferred purchase price of property due more than one year after such property is acquired, all conditional sale obligations of such Person and all obligations of such Person under any title retention agreement to the extent of the value of such property (but excluding any accounts payable or other liability to trade creditors arising in the ordinary course of business);

(d) all obligations of such Person for the reimbursement of any obligor on any letter of credit, bankers’ acceptance or similar credit transaction (other than obligations with respect to letters of credit securing obligations (other than obligations described in clauses (a) through (c) above) entered into in the ordinary course of business of such Person to the extent such letters of credit are not drawn upon or, if and to the extent drawn upon, such drawing is reimbursed no later than the 30th day following payment on the letter of credit);

(e) to the extent not otherwise included in this definition, Hedging Obligations of such Person;

(f) all obligations of the type referred to in clauses (a) through (e) of other Persons and all dividends of other Persons for the payment of which, in either case, such Person is responsible or liable, directly or indirectly, as obligor, guarantor or otherwise, including by means of any Guarantee; and

(g) all obligations of the type referred to in clauses (a) through (f) of other Persons secured by any Lien on any property or asset of such Person (whether or not such obligation is assumed by such Person), the amount of such obligation being deemed to be the lesser of the fair market value of such property or assets and the amount of the obligation so secured;

if, and to the extent, with respect to clauses (a), (b), (c) and (e) only, any of the preceding items referred to in clauses (a), (b), (c) and (e) would appear as a liability upon the balance sheet of the specified Person in accordance with GAAP; provided that Indebtedness shall not include deemed Indebtedness pursuant to Accounting Standards Codification 825 or 480 (formerly SFAS Nos. 133 or 150, respectively).

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“Indenture” means this instrument as originally executed or, if amended or supplemented as herein provided, as so amended or supplemented.

“Indenture Documents” means this Indenture, the Notes, the Note Guarantees and the Security Documents.

“Indenture Obligations” means all Obligations in respect of the Notes or arising under the Indenture Documents. Indenture Obligations shall include all interest accrued (or which would, absent the commencement of an insolvency or liquidation proceeding, accrue) after the commencement of an insolvency or liquidation proceeding in accordance with and at the rate specified in the relevant Indenture Document whether or not the claim for such interest is allowed as a claim in such insolvency or liquidation proceeding.

“Initial Notes” the first $160,000,000 aggregate principal amount of Notes issued under this Indenture on the Issue Date.

“Intercreditor Agreement” means an intercreditor agreement in the form attached as Exhibit E to this Indenture.

“Interest Payment Date” means each January 1, February 1, March 1, April 1, May 1, June 1, July 1, August 1, September 1, October 1, November 1 and December 1 of each year, beginning on February 1, 2016.

“Interest Period” means the period commencing on and including an Interest Payment Date and ending on and including the day immediately preceding the next succeeding Interest Payment Date, with the exception that the first Interest Period shall commence on and include the Issue Date (the Interest Payment Date for any Interest Period shall be the Interest Payment Date occurring on the day immediately following the last day of such Interest Period).

“Intellectual Property” means, with respect to any Person, all patents, patent applications and like protections, including improvements divisions, continuation, renewals, reissues, extensions and continuations in part of the same, trademarks, trade names, trade styles, trade dress, service marks, logos and other business identifiers and, to the extent permitted under applicable law, any applications therefor, whether registered or not, and the goodwill of the business of such Person connected with and symbolized thereby, copyright rights, copyright applications, copyright registrations and like protections in each work of authorship and derivative works, whether published or unpublished, technology, know-how and processes, operating manuals, trade secrets, computer hardware and software, rights to unpatented inventions and all applications and licenses therefor, used in or necessary for the conduct of business by such Person and all claims for damages by way of any past, present or future infringement of any of the foregoing.

“Investment” means, with respect to any Person, all direct or indirect investments by such Person in other Persons (including Affiliates) in the forms of loans (including Guarantees or other obligations) and advances (other than loans, Guarantees, obligations and advances to the extent

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that they both (i) are due within 60 days from the date made or incurred and (ii) do not exceed $10,000,000 in the aggregate outstanding at any time of determination), capital contributions, purchases or other acquisitions for consideration of Capital Stock or other securities. For purposes of the third parenthetical in the immediately preceding sentence, in the event that one or more loans, Guarantees, obligations or advances excluded from the definition of Investment pursuant to such parenthetical is not repaid within 60 days from the date made or incurred, such loans, Guarantees obligations or advances not so repaid shall be deemed to be Investments as of the date originally made or incurred. Except as otherwise provided in this Indenture, the amount of an Investment will be determined at the time the Investment is made and without giving effect to subsequent changes in value. The amount of all Investments (other than cash) will be the fair market value on the date of the transfer or issuance of the asset(s) or securities proposed to be transferred or issued by the Company or such Guarantor, as the case may be, pursuant to the Investment.

“Investment Collateral Value”, as of a Determination Date with respect to an Investment, means the sum, without duplication, as reasonably determined by the Company in a good faith manner, of (i) the Book Value of the Eligible Assets owned by the Company (excluding the equity interests of Pledged Foreign Subsidiaries and Guarantors) that secure the Notes pursuant to a perfected (under U.S. law) first priority Lien for the benefit of the Holders, the Book Value of Eligible Assets owned by Guarantors (excluding the equity interests of Pledged Foreign Subsidiaries and other Guarantors) that secure the Notes pursuant a perfected (under U.S. law) first priority Lien for the benefit of the Holders, (iii) 65% of the Book Value of the assets of the Pledged Foreign Subsidiaries, net of the liabilities of the Pledged Foreign Subsidiaries, in each case on a pro forma basis as of such Determination Date after giving effect to (x) such Investment and (y) any other investments and any Extraordinary Transactions following the latest Determination Date with respect to such Investment and prior to the time such Investment is consummated; provided that there shall be excluded from clause (iii) any Pledged Foreign Subsidiary with a pro forma net Book Value on the relevant Determination Date that is less than zero, and (iv) the deemed Book Value (determined as hereinafter provided) of the portion of Eligible Assets consisting of Intellectual Property owned by the Company or any Subsidiary that secure the Notes pursuant to a perfected first priority Lien for the benefit of the Holders (subject to any Intercreditor Agreement in respect thereof entered into in compliance with the Indenture Documents). For purposes of the foregoing, the Book Value of Eligible Assets consisting of Intellectual Property owned by the Company on the Issue Date shall be, as reasonably determined by the Company in a good faith manner, deemed to be $200 million. After the Issue Date, the deemed Book Value of assets consisting of Intellectual Property owned by the Company or any Subsidiary shall be deemed to be (a) decreased by the fair market value of any such Intellectual Property or rights in such Intellectual Property that are assigned, exclusively licensed, licensed outside the ordinary course of business, sold, conveyed or otherwise transferred to another party by the Company or such Subsidiary, as applicable, (b) increased by the fair market value of any such Intellectual Property or rights in such Intellectual Property that are assigned, exclusively licensed, licensed outside the ordinary course of business, sold, conveyed or otherwise transferred to the Company or such Subsidiary, as applicable, by the Company or a Subsidiary of the Company, as the case may be, and (c) decreased by the Book Value of any Indebtedness secured by a Lien on Intellectual Property that is not for the benefit of the Holders in their capacities as such.

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“Issue Date” means December 15, 2015.

“Last Reported Sale Price” of the Common Stock or any other security on any date means the closing sale price per share (or if no closing sale price is reported, the average of the bid and ask prices or, if more than one in either case, the average of the average bid and the average ask prices) on that date as reported in composite transactions for the Relevant Stock Exchange on which the Common Stock (or such other security) is then listed or admitted for trading. If the Common Stock or such other security is not listed for trading on a Relevant Stock Exchange on the relevant date, the “Last Reported Sale Price” shall be the average of the last quoted bid and ask prices for the Common Stock or such other security in the over-the-counter market on the relevant date as reported by OTC Markets Group Inc. or a similar organization. If the Common Stock or such other security is not so quoted, the “Last Reported Sale Price” shall be the average of the mid-point of the last bid and ask prices for the Common Stock or such other security on the relevant date from each of at least three nationally recognized independent investment banking firms selected by the Company for this purpose. The “Last Reported Sale Price” shall be determined without regard to after-hours trading or any other trading outside of regular trading session hours. None of the Trustee, Collateral Agent, Paying Agent or Conversion Agent shall be responsible for monitoring the Last Reported Sale Price.

“Lien” means, with respect to any asset (a) any mortgage, deed of trust, lien, pledge, encumbrance, charge or security interest in or on such asset, and (b) the interest of a vendor or a lessor under any conditional sale agreement, capital lease or title retention agreement (or any financing lease having substantially the same economic effect as any of the foregoing) relating to such asset.

“Lock-up Agreements” shall have the meaning specified in the definition of Lock-up Release Date.

“Lock-up Release Date” means the day that is the earliest of (i) the day that is 180 days following the date of the final prospectus for the Qualified IPO, (ii) if all executive officers, directors and shareholders of more than 1% of the Common Equity of the Company enter into customary lock-up agreements (the “Lock-up Agreements”) with the applicable underwriters in connection with the Qualified IPO, the earliest day on which any such lock-up agreements expire, if less than all executive officers, directors and shareholders of more than 1% of the Common Equity of the Company enter into Lock-up Agreements with the applicable underwriters in connection with the Qualified IPO, the day that the Qualified IPO is consummated and (iv) such date on which the Lock-up Agreements otherwise terminate or expire.

“Make-Whole Fundamental Change” means any transaction or event that constitutes a Fundamental Change (as defined above and determined after giving effect to any exceptions to or exclusions from such definition, but without regard to the proviso in clause (b) of the definition thereof).

“Make-Whole Fundamental Change Effective Date” shall have the meaning specified in Section 14.04(c).

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“Make-Whole Fundamental Change Period” shall have the meaning specified in Section 14.04(a).

“Make-Whole Provisions” shall have the meaning specified in Section 14.04(d).

“Make-Whole Table” shall have the meaning specified in Section 14.04(d).

“Material Pledged Foreign Subsidiary” means any Pledged Foreign Subsidiary having assets with a book value in excess of $10,000,000.

“Maturity Date” means December 1, 2020.

“Maximum Initial Conversion Rate” shall have the meaning specified in Section 14.05.

“Minimum Principal Amount” means at least 60% in aggregate principal amount of the Notes then outstanding.

“Mortgages” means a collective reference to each mortgage, deed of trust or deed to secure debt under which any Lien on the Premises or any other Collateral secured by and described in such mortgages, deeds of trust or deeds to secure debt is granted to secure any Indenture Obligations.

“Non-Material Real Property” means any fee interest in any real property with a fair market value (together with improvements thereof) as reasonably determined by the Company not exceeding $2.0 million and any leasehold, easement or licensed interest in real property (together with improvements located thereon not owned by the Company but subject to such lease, easement or license). Notwithstanding the foregoing, the Delaware Property shall constitute Non-Material Real Property so long as such property is encumbered by a mortgage in favor of a party other than the Collateral Agent.

“Note” or “Notes” shall have the meaning specified in the first paragraph of the recitals of this Indenture. Any Initial Notes, any PIK Notes (and any increases in Global Notes reflecting a PIK Payment) and any Additional Notes shall be treated as a single class for all purposes under this Indenture, including, without limitation, waivers, amendments, redemptions and offers to purchase. Unless the context otherwise requires, (a) all references to the “Notes” include any Initial Notes, any PIK Notes (and any increases in Global Notes reflecting a PIK Payment) and any Additional Notes and (b) all references to “principal amount” of Notes include any increase in the principal amount of outstanding Notes (including PIK Notes) as a result of a PIK Payment.

“Note Guarantee” means any Guarantee of payment of the Notes pursuant to the terms of this Indenture and any supplemental indenture thereto and, collectively, all such Note Guarantees.

“Note Register” shall have the meaning specified in Section 2.05(a).

“Note Registrar” shall have the meaning specified in Section 2.05(a).

“Notice of Conversion” shall have the meaning specified in Section 14.03(b).

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“Notice of Redemption” shall have the meaning specified in Section 13.03(a).

“Officer” means, with respect to the Company, the President, the Chief Executive Officer, the Chief Financial Officer, the Chief Accounting Officer, the Treasurer, the Secretary, any Executive or Senior Vice President or any Vice President (whether or not designated by a number or numbers or word or words added before or after the title “Vice President”).

“Obligations” means any principal, interest, penalties, fees, indemnifications, reimbursements, damages and other liabilities payable under the documentation governing any Indebtedness.

“Officer’s Certificate,” when used with respect to the Company or a Guarantor, means a certificate that is signed by any Officer of the Company or a Guarantor, as the case may be. Each such certificate shall include the statements provided for in Section 18.05 if and to the extent required by the provisions of such Section. The Officer giving an Officer’s Certificate pursuant to Section 4.08 shall be the principal executive, financial or accounting officer of the Company.

“open of business” means 9:00 a.m. (New York City time).

“Opinion of Counsel” means an opinion in writing signed by legal counsel, who may be an employee of or counsel to the Company, or other counsel who is reasonably acceptable to the Trustee and/or the Collateral Agent, as applicable, which opinion may contain customary exceptions and qualifications as to the matters set forth therein. Each such opinion shall include the statements provided for in Section 18.05 if and to the extent required by the provisions of such Section.

“outstanding,” when used with reference to Notes, shall, subject to the provisions of Section 8.04, mean, as of any particular time, all Notes authenticated and delivered by the Trustee under this Indenture, except:

(a) Notes theretofore canceled by the Trustee or accepted by the Trustee for cancellation;

(b) Notes, or portions thereof, that have become due and payable and in respect of which monies in the necessary amount shall have been deposited in trust with the Trustee or with any Paying Agent (other than the Company) or shall have been set aside and segregated in trust by the Company (if the Company shall act as its own Paying Agent);

(c) Notes that have been paid pursuant to Section 2.06 or Notes in lieu of which, or in substitution for which, other Notes shall have been authenticated and delivered pursuant to the terms of Section 2.06 unless proof satisfactory to the Trustee is presented that any such Notes are held by protected purchasers in due course;

(d) Notes converted pursuant to Article 14 and required to be cancelled pursuant to Section 2.08; and

(e) Notes repurchased or redeemed by the Company.

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“Pari Passu Obligations” means all Indebtedness and other obligations in an amount not to exceed $150,000,000 in aggregate principal amount that is secured by Intellectual Property and the proceeds thereof; provided that any Liens securing such Indebtedness shall be subject to the Intercreditor Agreement.

“Paying Agent” shall have the meaning specified in Section 4.02.

“Permitted Exchange” means any of The New York Stock Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market (or any of their respective successors).

(a) “Permitted Investment” means:

(b) any Investment in a PPA Company;

(c) any Investment in a Guarantor;

(d) any Investment in a Pledged Foreign Subsidiary; and any Investment in a Subsidiary of the Company; provided that, on the date of such Investment (the “Calculation Date”), the Investment Collateral Value on the last day of each of the four most recently ended fiscal quarters (with the last of such four fiscal quarters being the most recent quarter for which the Financial Statement Availability Date has occurred) (each such last day, a “Determination Date”) preceding the Calculation Date exceeds the Threshold Amount as of the Calculation Date. Notwithstanding the foregoing, the Investment Collateral Value as of September 30, 2015, June 30, 2015, March 31, 2015 and December 31, 2014 will be deemed to be $381,849,290, $373,456,340, $395,047,730 and $397,697,733, respectively.

“Permitted Liens” means:

(a) Liens on Intellectual Property and the proceeds thereof securing Pari Passu Obligations;

(b) Liens to secure Capital Lease Obligations and purchase money debt (and other Obligations related thereto), provided that, in each case, any such Lien may not extend to any Property of the Company or any Subsidiary of the Company, other than the Property acquired, constructed, improved or leased with the proceeds of such Indebtedness and any additions, parts, attachments, fixtures, leasehold improvements, proceeds, improvements or accessions related thereto;

(c) Liens for taxes, assessments or governmental charges or levies on the Property of the Company or any Subsidiary of the Company if the same shall not at the time be delinquent for more than 30 days or thereafter can be paid without penalty, or are being contested in good faith and by appropriate proceedings, provided that any reserve or other appropriate provision that shall be required in conformity with GAAP shall have been made therefor, such contest has the effect of preventing forfeiture or sale of the property or assets subject to any such lien;

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(d) Liens imposed by law or arising by operation of law, including without limitation, landlords’, mailmen’s, suppliers’, vendors’, carriers’, warehousemen’s and mechanics’ Liens and other similar Liens, Liens for master’s and crew’s wages and other similar laws, on the Property of the Company or any Subsidiary of the Company arising in the ordinary course of business and for payment obligations that are not more than 60 days past due or are being contested in good faith and by appropriate proceedings;

(e) Liens on the Property of the Company or any Subsidiary of the Company incurred in the ordinary course of business to secure performance of obligations with respect to letters of credit, bank guarantees, statutory or regulatory requirements, performance or return-of-money bonds, surety or appeal bonds, or other obligations of a like nature and Incurred in the ordinary course of business;

(f) Liens on Property at the time the Company or any Subsidiary of the Company acquired such Property, including any acquisition by means of a merger or consolidation with or into the Company or any Subsidiary of the Company; provided, however, that any such Lien may not extend to any other Property of the Company or any Subsidiary of the Company; provided further, however, that such Liens shall not have been incurred in anticipation of or in connection with the transaction or series of transactions pursuant to which such Property was acquired by the Company or any Subsidiary of the Company;

(g) Liens on the Property of a Person existing at the time such Person becomes a Subsidiary of the Company; provided, however, that any such Lien may not extend to any other Property of the Company or any other Subsidiary that is not a direct Subsidiary of such Person; provided further, however, that any such Lien was not Incurred in anticipation of or in connection with the transaction or series of transactions pursuant to which such Person became a Subsidiary of the Company;

(h) Liens Incurred or pledges or deposits made by the Company or any Subsidiary of the Company under workmen’s compensation laws, unemployment insurance laws or similar legislation, or good faith deposits in connection with bids, tenders, contracts (other than for the payment of Indebtedness) or leases to which the Company or any Restricted Subsidiary is party, or deposits to secure public or statutory obligations of the Company, or deposits for the payment of rent, in each case Incurred in the ordinary course of business;

(i) easements, building restrictions, zoning restrictions, minor survey exceptions, easements or reservations of rights of others for licenses, rights of way and similar purposes and such other encumbrances or charges against real Property as do not materially interfere with the Company’s use of the real Property;

(j) Liens existing on the Issue Date;

(k) Liens on the Property of the Company or any Restricted Subsidiary to secure any Refinancing, in whole or in part, of any Debt secured by Liens referred to in clauses (f), (g) and (j) of this definition; provided, however, that any such Lien shall be

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limited to all or part of the same Property that secured the original Lien (together with improvements and accessions to such Property) and the aggregate principal amount of 0Indebtedness that is secured by such Lien shall not be increased to an amount greater than the sum of:

(1) the outstanding principal amount, or, if greater, the committed amount, of the Indebtedness secured by Liens; and

(2) an amount necessary to pay any fees and expenses, including premiums and defeasance costs, incurred by the Company or such Restricted Subsidiary in connection with such Refinancing;

(l) judgment Liens with respect to judgments, decrees or orders not giving rise to a Default or Event of Default so long as such Liens are adequately bonded and any appropriate legal proceedings that may have been initiated for the review of such judgments, decrees or orders shall not have been finally terminated or the period within which such proceedings may be initiated shall not have expired;

(m) Liens upon specific items of inventory or other goods and proceeds of any Person securing such Person’s obligations in respect of letters of credit, bank guarantees or banker’s acceptances issued or credited for the account of such Person to facilitate the purchase, shipment or storage of such inventory or goods;

(n) Liens securing obligations of the Company under Hedging Obligations incurred in the ordinary course of business;

(o) Liens arising under consignment or similar arrangements for the sale of goods in the ordinary course of business;

(p) Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods;

(q) Liens securing other Indebtedness or other obligations not exceeding $10.0 million at any time outstanding;

(r) Liens securing the Indenture Obligations in respect of the Notes and Notes Guarantees;

(s) (i) leases, subleases, licenses or sublicenses granted to others in the ordinary course of business which do not materially interfere with the ordinary conduct of the business of the Company or any of its Subsidiaries, (ii) any interest or title of a lessor under any leases or subleases entered into by the Company or any of its Subsidiaries in the ordinary course of business, and (iii) any interest of co-sponsors, co- owners or co-developers of intellectual property;

(t) Liens (i) of a collection bank on items in the course of collection, (ii) attaching to commodity trading accounts or other brokerage accounts in the ordinary course of business, (iii) in favor of banking institutions by law or contract encumbering deposits which are customary in the banking industry and (iv) Liens securing cash management obligations arising in the ordinary course of business;

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(u) customary Liens in favor of trustees, collateral agents and escrow agents securing obligations owing to such Persons in such capacities;

(v) options, put and call arrangements, rights of first refusal and similar rights relating to investments in joint ventures;

(w) Liens arising from UCC financing statements regarding operating leases entered into by the Company or any of its Subsidiaries in the ordinary course of business;

(x) Liens arising by law or contract on insurance policies and the proceeds thereof to secure premiums thereunder;

(y) deposits as security and liens securing surety and appeal bonds, letters of credit and similar obligations in connection with contested taxes or contested import or customs duties; and

(z) Liens on the Delaware Property securing Indebtedness or other obligations.

“Permitted Priority Liens” means (i) Liens that are not for the benefit of the Holders in their capacities as such and that are pari passu with the Liens granted pursuant to the Security Documents and (ii) Liens incurred pursuant to clauses (b), (c), (d), (e), (f), (g), (h), (j) (other than Liens pursuant to the Loan and Security Agreement, dated as of March 30, 2012, by and between Silicon Valley Bank and Bloom Energy Corporation), (k), (l), (m), (p), (x) or (y) of the definition of “Permitted Liens” to the extent such Liens have priority over the Liens granted pursuant to the Security Agreement by operation of law.

“Person” means an individual, a corporation, a limited liability company, an association, a partnership, a joint venture, a joint stock company, a trust, an unincorporated organization or a government or an agency or a political subdivision thereof.

“Physical Notes” means permanent certificated Notes in registered form issued in minimum denominations of $1,000 principal amount and integral multiples of $1,000 in excess thereof; provided that after a PIK Payment, Physical Notes means permanent certificated Notes in registered form issued in minimum denominations of $1.00 principal amount and integral multiples of $1.00 in excess thereof.

“PIK Interest” shall have the meaning specified in Section 2.03(c)(i).

“PIK Notes” shall have the meaning specified in Section 2.03(c)(ii).

“PIK Payment” shall have the meaning specified in Section 2.03(c)(ii).

“Pledged Foreign Subsidiary” means a (i) Foreign Subsidiary of the Company (which Foreign Subsidiary is not owned directly or indirectly by another Foreign Subsidiary of the Company) or (ii) Foreign Subsidiary of any Guarantor (which Foreign Subsidiary is not owned

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directly or indirectly by another Foreign Subsidiary of the Company), in each case with respect to which 65% of each class of its voting equity interests and all of its non-voting equity interests is pledged pursuant to the Security Documents.

“PPA Company” means (i) an Affiliate of the Company that is the project entity in a bona fide power purchase agreement program involving one or more third party investors and having a structure that is materially consistent with that used in the Company’s past practice (as the same may be modified in good faith by the Company to take into account changes in tax law or industry practice) (a “Project Entity”) and (ii) a Wholly-Owned Subsidiary of the Company whose assets consist solely of the Capital Stock of one or more PPA Companies.

“Predecessor Note” of any particular Note means every previous Note evidencing all or a portion of the same debt as that evidenced by such particular Note; and, for the purposes of this definition, any Note authenticated and delivered under Section 2.06 in lieu of or in exchange for a mutilated, lost, destroyed or stolen Note shall be deemed to evidence the same debt as the mutilated, lost, destroyed or stolen Note that it replaces.

“Premises” shall have the meaning specified in Section 4.16.

“Qualified IPO” means the first firmly underwritten registered public offering of Common Stock that results in aggregate gross proceeds to the Company of at least $150.0 million, and after which the Common Stock is listed for trading or quoted on The New York Stock Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market (or any of the respective successors).

“Qualified IPO Price” means the price per share at which the shares of Common Stock are sold to the public pursuant to the Qualified IPO.

“Property” means, with respect to any Person, any interest of such Person in any kind of property or asset, whether real, personal or mixed, or tangible or intangible, including Capital Stock in, and other securities of, any other Person.

“Provisional Redemption” shall have the meaning specified in Section 13.01.

“Provisional Redemption Date” shall have the meaning specified in Section 13.01.

“Provisional Redemption Price” shall have the meaning specified in Section 13.01.

“Record Date” means, with respect to any dividend, distribution or other transaction or event in which the holders of Common Stock (or other applicable security) have the right to receive any cash, securities or other property or in which the Common Stock (or such other security) is exchanged for or converted into any combination of cash, securities or other property, the date fixed for determination of holders of the Common Stock (or such other security) entitled to receive such cash, securities or other property (whether such date is fixed by the Board of Directors, by statute, by contract or otherwise).

“Redemption Conversion Period” shall have the meaning specified in Section 14.04(a).

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“Redemption Date” shall mean a Provisional Redemption Date or a Change of Control Redemption Date, as the case may be.

“Redemption Notice Date” shall have the meaning specified in Section 13.03(a).

“Redemption Price” shall mean the Provisional Redemption Price or the Change of Control Redemption Price, as the case may be.

“Reference Property” shall have the meaning specified in Section 14.08(a).

“Refinance” means, in respect of any Indebtedness, to refinance, extend, renew, defease, amend, modify, supplement, restructure, replace, refund or repay, or to issue other Indebtedness, in exchange or replacement for, such Indebtedness. “Refinanced” and “Refinancing” shall have correlative meanings.

“Registration Rights Agreement” means the Eighth Amended and Restated Registration Rights Agreement, dated as of June 30, 2011, by and between the Company and the investors listed on the signature pages thereto, as such agreement may be amended, modified or supplemented from time to time.

“Regular Record Date,” with respect to any Interest Payment Date, means the December 15, January 15, February 15, March 15, April 15, May 15, June 15, July 15, August 15, September 15, October 15 and November 15 (whether or not such day is a Business Day) immediately preceding the applicable January 1, February 1, March 1, April 1, May 1, June 1, July 1, August 1, September 1, October 1, November 1 or December 1 Interest Payment Date, respectively.

“Relevant Stock Exchange”, with respect to the Common Stock (or any other security for which a closing sale price must be determined) means The New York Stock Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market, or if the Common Stock (or such other security) is not then listed or admitted for trading on any of The New York Stock Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market, the principal other U.S. national or regional securities exchange on which the Common Stock (or such other security) is then listed or admitted for trading.

“Resale Restriction Termination Date” shall have the meaning specified in Section 2.05(c).

“Responsible Officer” means, when used with respect to the Trustee, any officer within the corporate trust department of the Trustee, including any vice president, assistant vice president, assistant secretary or any other officer of the Trustee who customarily performs functions similar to those performed by the Persons who at the time shall be such officers, respectively, or any other officer of the Trustee to whom any corporate trust matter relating to this Indenture is referred because of such person’s knowledge of and familiarity with the particular subject and, in each case, who shall have direct responsibility for the administration of this Indenture.

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“Restricted Investment” means an Investment by the Company in any of its Affiliates other than a Permitted Investment.

“Restricted Securities” shall have the meaning specified in Section 2.05(c).

“Restriction Agreement” means a restriction agreement in the form of Exhibit B hereto that is executed by each Holder on the Issue Date and that must be executed by a transferee of Notes and delivered to the Company prior to taking possession of Notes if possession of Notes is to occur prior to the Lock-up Release Date.

“Rule 144” means Rule 144 as promulgated under the Securities Act.

“Rule 144A” means Rule 144A as promulgated under the Securities Act.

“Scheduled Trading Day” means a day that is scheduled to be a Trading Day on the Relevant Stock Exchange on which the Common Stock is then listed or admitted for trading. If the Common Stock is not listed or admitted for trading on a Relevant Stock Exchange, “Scheduled Trading Day” means a Business Day.

“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.

“Security Agreement” means that certain security agreement, dated as of the Issue Date, by and among the Company, the other grantors from time to time party thereto and the Collateral Agent, as amended, supplemented, modified or replaced in accordance with this Indenture and its terms.

“Security Documents” means all security agreements (including the Security Agreement), intercreditor agreements (including the Intercreditor Agreement), pledge agreements, collateral assignments, Mortgages, collateral agency agreements, debentures, Deposit Account Control Agreements or other grants or transfers for security executed and delivered by the Company or any Guarantor creating (or purporting to create) a Lien upon Collateral for the benefit of the Holders to secure the Indenture Obligations, in each case, as amended, supplemented, modified, renewed, restated or replaced, in whole or in part, from time to time, in accordance with its terms and the terms of this Indenture.

“Series G Preferred Stock” means the Company’s Series G Preferred Stock.

“Significant Subsidiary” means a Subsidiary of the Company that meets the definition of “significant subsidiary” in Article 1, Rule 1-02 of Regulation S-X under the Exchange Act; provided that, in the case of a Subsidiary of the Company that meets the criteria of clause (3) of the definition thereof but not clause (1) or (2) of the definition thereof, such Subsidiary shall not be a Significant Subsidiary unless the Subsidiary’s income or loss from continuing operations before income taxes, extraordinary items and cumulative effect of a change in accounting principle exclusive of amounts attributable to any non-controlling interests for the last completed fiscal year prior to the date of such determination exceeds $5.0 million.

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“Significant Investment” means an Investment or series of related Investments, taken together, valued at more than 50% of the Collateral Value that is in excess of the then-applicable Threshold Amount.

“Specified Corporate Event” shall have the meaning specified in Section 14.08(a).

“Specified Repurchase Date” shall mean shall have the meaning specified in Section 15.01(a).

“Specified Repurchase Date Notice” shall have the meaning specified in Section 15.07(a)(i).

“Specified Repurchase Date Price” shall have the meaning specified in Section 15.01(a).

“Specified Repurchase Date Right Notice” shall mean shall have the meaning specified in Section 15.01(b).

“Spin-Off” shall have the meaning specified in Section 14.05(c).

“Stated Maturity” means, with respect to any installment of interest or principal on any series of Indebtedness, the date on which the payment of interest or principal was scheduled to be paid in the documentation governing such Indebtedness as of the first date it was incurred in compliance with the terms of this Indenture, and will not include any contingent obligations to repay, redeem or repurchase any such interest or principal prior to the date originally scheduled for the payment thereof.

“Stock Price” shall have the meaning specified in Section 14.04(c).

“Subsidiary” means, with respect to any Person, any corporation, association, partnership or other business entity of which more than 50% of the total voting power of shares of Capital Stock or other interests (including partnership interests) entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers, general partners or trustees thereof is at the time owned or controlled, directly or indirectly, by (i) such Person; (ii) such Person and one or more Subsidiaries of such Person; or (iii) one or more Subsidiaries of such Person.

“Successor Company” shall have the meaning specified in Section 11.01(a).

“Threshold Amount” means, as of any date of determination, 200% of the principal amount of and accrued and unpaid interest on the outstanding Notes.

“Trading Day” means a day on which (i) trading in the Common Stock (or any other security for which a closing sale price must be determined) generally occurs on a Relevant Stock Exchange and (ii) a Last Reported Sale Price for the Common Stock (or closing sale price for such other security) is available on such securities exchange or market; provided that if the Common Stock (or such other security) is not so listed or traded, “Trading Day” means a Business Day.

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“Transaction Price” means the per share amount of consideration received by the holders of Common Stock in a Change of Control. If the consideration is paid in property other than in cash, the value of such consideration, on a per share basis, shall be the fair market value of such property, determined as follows:

(a) for securities not subject to investment letters or similar restrictions on free marketability,

(1) if traded on a securities exchange, the value shall be deemed to be the average of the closing prices of the securities on such exchange or market over the thirty (30) day period ending three (3) days prior to the closing of such transaction;

(2) if actively traded over-the-counter, the value shall be deemed to be the average of the closing bid prices over the thirty (30) day period ending three (3) days prior to the closing of such transaction; or

(3) if there is no active public market, the value shall be the fair market value thereof, as reasonably determined in good faith by the Board of Directors of the Company; and

(b) for securities subject to investment letters or other similar restrictions on free marketability (other than restrictions arising solely by virtue of a stockholder’s status as an affiliate or former affiliate), the valuation methodology shall take into account an appropriate discount (as determined in good faith by the Board of Directors of the Company) from the market value as determined pursuant to clause (a) above so as to reflect the approximate fair market value thereof.

Within two Business Days after the “Change of Control Effective Date,” the Company shall deliver to Holders, the Trustee and the Conversion Agent (if other than the Trustee) the Transaction Price and a schedule and reasonable explanation of the calculation thereof (the “Transaction Price Notice”). To the extent Holders of at least the Minimum Principal Amount of the Notes then outstanding (such holders, the “Disputing Holders”) dispute the Transaction Price calculation in writing to the Company (with a copy to the Trustee and the Conversion Agent (if other than the Trustee)) on or before the 20th Business Day after receipt of the Transaction Price Notice, the Transaction Price shall be mutually determined by the Company and the Disputing Holders, and if the Company and the Disputing Holders are unable to reach agreement, the Transaction Price shall be determined by an independent nationally recognized investment bank selected by the Company and the Disputing Holders and delivered to the Trustee and the Conversion Agent on or prior to the 40th Business Day following the Change of Control Effective Date.

“Transaction Price Notice” shall have the meaning specified in the definition of Transaction Price.

“transfer” shall have the meaning specified in Section 2.05(c).

“Trigger Event” shall have the meaning specified in Section 14.05(c).

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“Trust Indenture Act” means the Trust Indenture Act of 1939, as amended, as it was in force at the date of execution of this Indenture; provided, however, that in the event the Trust Indenture Act of 1939 is amended after the Issue Date, the term “Trust Indenture Act” shall mean, to the extent required by such amendment, the Trust Indenture Act of 1939, as so amended.

“Trustee” means the Person named as the “Trustee” in the first paragraph of this Indenture until a successor trustee shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean or include each Person who is then a Trustee hereunder.

“unit of Reference Property” shall have the meaning specified in Section 14.08(a).

“Valuation Period” shall have the meaning specified in Section 14.05(c).

“Wholly-Owned Subsidiary” means, with respect to any Person, any Subsidiary of such Person, 100% of the Capital Stock of which is owned by such Person (other than directors’ qualifying shares or shares required by applicable law to be held by third persons).

Section 1.02 References to Interest. Unless the context otherwise requires, any reference to interest on, or in respect of, any Note in this Indenture shall be deemed to include Additional Interest if, in such context, Additional Interest is, was or would be payable pursuant to any of Section 4.10 and Section 6.04 and PIK Interest if, in such context, PIK Interest is, was or would be payable pursuant to Section 2.03(c). Unless the context otherwise requires, any express mention of Additional Interest or PIK Interest, as applicable, in any provision hereof shall not be construed as excluding Additional Interest or PIK Interest, as applicable, in those provisions hereof where such express mention is not made.

ARTICLE 2

ISSUE, DESCRIPTION, EXECUTION, REGISTRATION AND EXCHANGE OF NOTES

Section 2.01 Designation and Amount. The Notes shall be designated as the “5.0% Convertible Senior Secured PIK Notes due 2020.” The aggregate principal amount of Notes that may be authenticated and delivered under this Indenture is initially limited to $160,000,000, subject to any PIK Payments permitted by this Indenture that are made pursuant to Section 2.03(c)(i)(A) and Section 2.10 and except for Notes authenticated and delivered upon registration or transfer of, or in exchange for, or in lieu of other Notes to the extent expressly permitted hereunder.

Section 2.02 Form of Notes. The Notes and the Trustee’s certificate of authentication to be borne by such Notes shall be substantially in the form set forth in Exhibit A, the terms and provisions of which shall constitute, and are hereby expressly incorporated in and made a part of this Indenture. To the extent applicable, the Company, the Guarantors, if any, and the Trustee, by their execution and delivery of this Indenture (or, with respect to the Guarantors, if any, a supplemental indenture to this Indenture substantially in the form of Exhibit C hereto), expressly agree to such terms and provisions and to be bound thereby.

Any Global Note may be endorsed with or have incorporated in the text thereof such legends or recitals or changes not inconsistent with the provisions of this Indenture as may be

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required by the Custodian or the Depositary, or as may be required to comply with any applicable law or any regulation thereunder or with the rules and regulations of any securities exchange or automated quotation system upon which the Notes may be listed or traded or designated for issuance or to conform with any usage with respect thereto, or to indicate any special limitations or restrictions to which any particular Notes are subject pursuant to this Indenture or any applicable law.

Any of the Notes may have such letters, numbers or other marks of identification and such notations, legends or endorsements as any Officer executing the same may approve (execution thereof to be conclusive evidence of such approval) and as are not inconsistent with the provisions of this Indenture, or as may be required to comply with any law or with any rule or regulation made pursuant thereto or with any rule or regulation of any securities exchange or automated quotation system on which the Notes may be listed or designated for issuance, or to conform to usage or to indicate any special limitations or restrictions to which any particular Notes are subject pursuant to this Indenture or any applicable law.

Each Global Note shall represent such principal amount of the outstanding Notes as shall be specified therein and shall provide that it shall represent the aggregate principal amount of outstanding Notes from time to time endorsed thereon and that the aggregate principal amount of outstanding Notes represented thereby may from time to time be increased or reduced to reflect repurchases, cancellations, conversions, transfers, exchanges or issuances of any Additional Notes (to the extent such issuances are fungible with the Notes represented by such Global Note for U.S. federal income tax and securities law purposes) or any PIK Notes or PIK Payments permitted hereby. Any endorsement of a Global Note to reflect the amount of any increase or decrease in the amount of outstanding Notes represented thereby shall be made by the Trustee or the Custodian, at the direction of the Trustee, in such manner and upon written instructions given by the Holder of such Notes or the Company in accordance with this Indenture. Payment of principal (including the Fundamental Change Repurchase Price, Specified Repurchase Date Price, Change of Control Repurchase Price and redemption price, if applicable) of, and accrued and unpaid Cash Interest on, a Global Note shall be made to the Holder of such Note on the date of payment, unless a record date or other means of determining Holders eligible to receive payment is provided for herein.

Section 2.03 Date and Denomination of Notes; Payments of Interest and Defaulted Amounts.

(a) The Notes shall be issuable in registered form without coupons in denominations of $1,000 principal amount and integral multiples thereof; provided that after a PIK Payment, the Notes shall be in minimum denominations of $1.00 and any integral multiple of $1.00 in excess thereof. Each Note shall be dated the date of its authentication and shall bear interest from the date specified on the face of such Note. Accrued interest on the Notes shall be computed on the basis of a 360-day year composed of twelve 30-day months or, in the case of a partial month, the number of days elapsed over a 30-day month and shall be compounded monthly on the last day of each month. The Company shall pay cash amounts in money of the United States that at the time of payment is legal tender for payment of public and private debts.

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(b) The Person in whose name any Note (or its Predecessor Note) is registered on the Note Register at the close of business on any Regular Record Date with respect to any Interest Payment Date shall be entitled to receive the interest payable on such Interest Payment Date. The principal amount of any Note (x) in the case of any Physical Note, shall be payable at the office or agency of the Company maintained for such purposes in the continental United States of America, which shall initially be the Corporate Trust Office of the Trustee and (y) in the case of any Global Note, shall be payable by wire transfer of immediately available funds to the account of the Depositary or its nominee. The Company through the Paying Agent, shall pay Cash Interest (i) on any Physical Notes (A) to Holders holding Physical Notes having an aggregate principal amount of $5,000,000 or less, by check mailed to the Holders of these Notes at their address as it appears in the Note Register and (B) to Holders holding Physical Notes having an aggregate principal amount of more than $5,000,000, either by check mailed to each such Holder or, upon application by such a Holder to the Note Registrar not later than the relevant Regular Record Date, by wire transfer in immediately available funds to that Holder’s account within the United States, which application shall remain in effect until the Holder notifies, in writing, the Note Registrar to the contrary or (ii) on any Global Note by wire transfer of immediately available funds to the account of the Depositary or its nominee.

(c)

(i) Interest will be payable, at the Company’s election (made by delivering a notice to the Trustee and the Holders prior to the beginning of the related Interest Period), (1) entirely in cash (“Cash Interest”) or (2) entirely in kind (“PIK Interest”). In the absence of an interest payment election as set forth in the immediately preceding sentence, interest on the Notes will be payable in PIK Interest in the manner described in clause (2)(A) of the immediately preceding sentence. The interest payment on the Notes to be made on January 1, 2016 will be payable in the form of PIK Interest.

(ii) At all times, PIK Interest on the Notes will be payable (1) with respect to Physical Notes, by issuing additional Notes under this Indenture on the same terms and conditions as the Notes, except interest will accrue on such additional Notes from the applicable Interest Payment Date that such additional Notes are required to be issued under this Indenture (the “PIK Notes”) (each payment of PIK Interest pursuant to clause (1) or (2) of this Section 2.03(c)(ii), a “PIK Payment”), in certificated form in an aggregate principal amount equal to the amount of PIK Interest for the applicable Interest Period (rounded to the nearest whole dollar, with amounts of $0.50 or more being rounded up), and the Trustee will, upon receipt of a Company Order, authenticate and deliver such PIK Notes in certificated form for original issuance to the Holders on the relevant Regular Record Date, as shown in the register of the Note Registrar (2) with respect to Notes represented by one or more Global Notes registered in the name of or held by DTC or its nominee on the relevant Regular Record Date, by increasing the principal amount of the outstanding Global Note or Notes (or by issuing a new Global Note, if required pursuant to the applicable procedures of the Depositary) by an amount equal to the amount of PIK Interest for the applicable Interest Period (rounded to the nearest whole dollar, with amounts of $0.50 or more being rounded up) as provided in a Company Order by the Company to the Trustee, and the Trustee, at the Company’s written direction, shall record such increase in such Global Note or Notes. Following an increase in the principal

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amount of any outstanding Global Notes as a result of a PIK Payment, such Global Note will bear interest on such increased principal amount from and after the date of such PIK Payment. Any PIK Notes issued in certificated form will be dated as of the applicable Interest Payment Date and will bear interest from and after such date. All PIK Notes issued pursuant to a PIK Payment will be governed by, and subject to the terms, provisions and conditions of, this Indenture and will have the same rights and benefits as the Initial Notes. Any certificated PIK Note will be issued with the description “PIK” on the face of such PIK Note.

(iii) Notwithstanding anything to the contrary in this Section 2.03(c), the payment of accrued interest shall be made solely in cash, (A) in connection with any redemption or repurchase of Notes as described under Section 13.01, Section 13.02, Section 15.01, Section 15.02 and Section 15.03, (1) with respect to all Notes, if the related redemption date, Specified Repurchase Date, Fundamental Change Repurchase Date or Change of Control Repurchase Date, as applicable, is after a Regular Record Date and on or prior to the Scheduled Trading Day immediately following the date on which the corresponding interest payment is made or (2) solely with respect to the Notes to be repurchased or redeemed, if the related Redemption Date, Specified Repurchase Date, Fundamental Change Repurchase Date or Change of Control Repurchase Date, as applicable, is on any other date, (B) with respect to all Notes, if any Notes are surrendered for conversion after the close of business on a Regular Record Date for the payment of interest and on or prior to the related Interest Payment Date and (C) on the final Interest Payment Date.

(d) Any Defaulted Amounts shall forthwith cease to be payable to the Holder on the relevant payment date but shall accrue interest per annum at the rate borne by the Notes, subject to the enforceability thereof under applicable law, from, and including, such relevant payment date, and such Defaulted Amounts together with such interest thereon shall be paid by the Company, at its election in each case, as provided in clause (i) or (ii) below:

(i) The Company may elect to make payment of any Defaulted Amounts to the Persons in whose names the Notes (or their respective Predecessor Notes) are registered at the close of business on a special record date for the payment of such Defaulted Amounts, which shall be fixed in the following manner. The Company shall notify the Trustee in writing of the amount of the Defaulted Amounts proposed to be paid on each Note and the date of the proposed payment (which shall be not less than 25 calendar days after the receipt by the Trustee of such notice, unless the Trustee shall consent to an earlier date), and at the same time the Company shall deposit with the Trustee an amount of money equal to the aggregate amount to be paid in respect of such Defaulted Amounts or shall make arrangements satisfactory to the Trustee for such deposit on or prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Amounts as in this clause provided. Thereupon the Company shall fix a special record date for the payment of such Defaulted Amounts which shall be not more than 15 calendar days and not less than 10 calendar days prior to the date of the proposed payment, and not less than 10 calendar days after the receipt by the Trustee of the notice of the proposed payment. The Company shall promptly notify the Trustee in writing of such special record date and in such notice, instruct the Trustee, in

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the name and at the expense of the Company, to deliver notice of the proposed payment of such Defaulted Amounts and the special record date therefor to each Holder not less than 10 calendar days prior to such special record date. Notice of the proposed payment of such Defaulted Amounts and the special record date therefor having been so delivered, such Defaulted Amounts shall be paid to the Persons in whose names the Notes (or their respective Predecessor Notes) are registered at the close of business on such special record date and shall no longer be payable pursuant to the following clause (ii) of this Section 2.03(d).

(ii) The Company may make payment of any Defaulted Amounts in any other lawful manner not inconsistent with the requirements of any securities exchange or automated quotation system on which the Notes may be listed or designated for issuance, and upon such notice as may be required by such exchange or automated quotation system, if, after written notice given by the Company to the Trustee of the proposed payment pursuant to this clause, such manner of payment shall be deemed practicable by the Trustee.

(iii) The Trustee shall not at any time be under any duty or responsibility to any Holder to determine the Defaulted Amounts, or with respect to the nature, extent, or calculation of the amount of the Defaulted Amounts owed, or with respect to the method employed in such calculation of the Defaulted Amounts.

Section 2.04 Execution, Authentication and Delivery of Notes. The Notes shall be signed in the name and on behalf of the Company by the manual or facsimile signature of any Officer.

At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Notes executed by the Company to the Trustee for authentication, together with a Company Order for the authentication and delivery of such Notes, and the Trustee in accordance with such Company Order shall authenticate and deliver such Notes.

Only such Notes as shall bear thereon a certificate of authentication substantially in the form set forth on the Form of Note attached as Exhibit A hereto, executed manually by an authorized signatory of the Trustee (or an authenticating agent appointed by the Trustee as provided by Section 18.10), shall be entitled to the benefits of this Indenture or be valid or obligatory for any purpose. Such certificate by the Trustee (or such an authenticating agent) upon any Note executed by the Company shall be conclusive evidence that the Note so authenticated has been duly authenticated and delivered hereunder and that the Holder is entitled to the benefits of this Indenture.

In case any Officer of the Company who shall have signed any of the Notes shall cease to be such Officer before the Notes so signed shall have been authenticated and delivered by the Trustee, or disposed of by the Company, such Notes nevertheless may be authenticated and delivered or disposed of as though the person who signed such Notes had not ceased to be such Officer of the Company; and any Note may be signed on behalf of the Company by such persons as, at the actual date of the execution of such Note, shall be the Officers of the Company, although at the date of the execution of this Indenture any such person was not such an Officer.

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Section 2.05 Exchange and Registration of Transfer of Notes; Restrictions on Transfer; Depositary.

(a) The Company shall cause to be kept at the Corporate Trust Office a register (the register maintained in such office or in any other office or agency of the Company designated pursuant to Section 4.02, the “Note Register”) in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of Notes and of transfers of Notes. Such register shall be in written form or in any form capable of being converted into written form within a reasonable period of time. The Trustee is hereby initially appointed the “Note Registrar” for the purpose of registering Notes and transfers of Notes as herein provided. The Company may appoint one or more co-Note Registrars in accordance with Section 4.02.

Upon surrender for registration of transfer of any Note to the Note Registrar or any co- Note Registrar, and satisfaction of the requirements for such transfer set forth in this Section 2.05, the Company shall execute, and the Trustee, upon receipt of any items required to be delivered hereunder, shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Notes of any authorized denominations and of a like aggregate principal amount and bearing such restrictive legends as may be required by this Indenture.

Notes may be exchanged for other Notes of any authorized denominations and of a like aggregate principal amount, upon surrender of the Notes to be exchanged at any such office or agency maintained by the Company pursuant to Section 4.02. Whenever any Notes are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Notes that the Holder making the exchange is entitled to receive, bearing registration numbers not contemporaneously outstanding.

All Notes presented or surrendered for registration of transfer or for exchange, repurchase or conversion (other than in connection with a Change of Control prior to the Qualified IPO) shall (if so required by the Company, the Trustee, the Note Registrar or any co-Note Registrar) be duly endorsed, or be accompanied by a written instrument or instruments of transfer in form satisfactory to the Company and the Trustee and duly executed, by the Holder thereof or its attorney-in-fact duly authorized in writing.

No service charge shall be imposed on the Holder by the Company, the Trustee, the Note Registrar, any co-Note Registrar or the Paying Agent for any exchange or registration of transfer of Notes, but the Company may require a Holder to pay a sum sufficient to cover any documentary, stamp or similar issue or transfer tax required in connection therewith as a result of the name of the Holder of new Notes issued upon such exchange or registration of transfer being different from the name of the Holder of the old Notes surrendered for exchange or registration of transfer.

None of the Company, the Trustee, the Note Registrar or any co-Note Registrar shall be required to exchange or register a transfer of (i) any Notes surrendered for conversion or, if a portion of any Note is surrendered for conversion, such portion thereof surrendered for conversion (in each case, other than in connection with a Change of Control prior to the Qualified IPO), (ii) any Notes, or a portion of any Note, surrendered for repurchase (and not withdrawn) in accordance with Article 15 or (iii) any Notes entitled to be redeemed by the Company in accordance with Article 13 (except in the case of Notes to be redeemed in part, the portion thereof not to be redeemed).

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All Notes issued upon any registration of transfer or exchange of Notes in accordance with this Indenture shall be the valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under this Indenture as the Notes surrendered upon such registration of transfer or exchange.

(b) The Notes shall be initially issued as Physical Notes registered in the name of each Holder (or nominee thereof), and each such Note shall be issued in the aggregate principal amount specified in the Company Order that is delivered to the Trustee on the Issue Date. The Company and the Guarantors shall use commercially reasonable efforts to cause the Notes to be eligible for book-entry settlement with the Depositary and deposit one or more registered global notes representing the Notes in global form without interest coupons (each, a “Global Note”) registered in the name of the Depositary or the nominee of the Depositary as promptly as practicable following the Lock-up Release Date, including effecting the placement of notations of guarantee in the form of Exhibit D attached hereto on each Note entitled to the benefits of one or more Note Guarantees. The Company shall notify the Holders and the Trustee in writing promptly following such eligibility and deposit, and after such time Physical Notes may be presented to the Trustee by Holders thereof in exchange for a beneficial interest representing an equivalent principal amount in a Global Note as described below. Each Global Note shall bear the legend required on a Global Note set forth in Exhibit A hereto. The transfer and exchange of beneficial interests in a Global Note that does not involve the issuance of a Physical Note shall be effected through the Depositary in accordance with this Indenture (including the restrictions on transfer set forth herein) and the procedures of the Depositary therefor. At such time as any Physical Note has been converted, repurchased, exchanged or transferred (and, in the case of a transfer, another Note has been issued to the transferee or the transferee has received a beneficial interest in a Global Note), other than a conversion, repurchase, exchange or transfer in part, such Physical Note shall be, upon receipt thereof, cancelled by the Trustee in accordance with its applicable procedures. The exchange of a Physical Note for a Global Note shall follow the procedures set forth in the penultimate paragraph of Section 2.05(c). In the case of any such exchange, if a Global Note is outstanding prior to such exchange, the aggregate principal amount of such Global Note will be increased, pursuant to standing procedures between the Trustee and the Depositary, by an amount equal to the aggregate principal amount of Physical Notes so exchanged. If no Global Note is outstanding prior to such exchange, the Company will execute and deliver to the Trustee or any authenticating agent a Global Note representing an aggregate principal amount equal to the aggregate principal amount of Physical Notes so exchanged and bearing a restrictive legend if required under Section 2.05(c), together with a Company Order for authentication thereof and delivery to the Depositary or the Custodian, and any Officer’s Certificate or Opinion of Counsel regarding such authentication and delivery required by the Trustee under Section 18.05, and upon receipt of such documents, the Trustee will promptly authenticate the Global Note and deliver it to the Depositary or the Custodian. The Company agrees to make any non-substantive changes to the terms of the Notes reasonably requested or required by the Trustee or the Depositary such that the Notes will be eligible for settlement through the Depositary. With respect to any Global Notes, any transfer and exchange of beneficial interests in such Global Note that does not involve the issuance of a Physical Note shall be effected through the Depositary in accordance with this Indenture (including the restrictions on transfer set forth herein) and the procedures of the Depositary therefor.

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(c) Every Note that bears or is required under this Section 2.05(c) to bear the legend set forth in this Section 2.05(c) (together with any Common Stock issued upon conversion of the Notes that is required to bear the legend set forth in Section 2.05(d), collectively, the “Restricted Securities”) shall be subject to the restrictions on transfer set forth in this Section 2.05(c) (including those contained in the legend set forth below), unless such restrictions on transfer shall be eliminated or otherwise waived by written consent of the Company, and the Holder of each such Restricted Security, by such Holder’s acceptance thereof, agrees to be bound by all such restrictions on transfer. As used in this Section 2.05(c) and Section 2.05(d), the term “transfer” encompasses any sale, pledge, transfer or other disposition whatsoever of any Restricted Security.

(i) Until the date (the “Resale Restriction Termination Date”) that is the later of (1) the date that is one year after the last date of original issuance of the Notes, or such shorter period of time as permitted by Rule 144 or any successor provision thereto, and (2) such other date as may be required by applicable law, any certificate evidencing such Note (and all securities issued in exchange therefor or substitution thereof, other than Common Stock, if any, issued upon conversion thereof, which shall bear the legend set forth in Section 2.05(d), if applicable) shall bear a legend in substantially the following form (unless such Notes have been transferred pursuant to a registration statement that has become or been declared effective under the Securities Act and that continues to be effective at the time of such transfer, or sold pursuant to the exemption from registration provided by Rule 144 or any similar provision then in force under the Securities Act, or unless otherwise agreed by the Company in writing, with notice thereof to the Trustee):

THE SALE OF THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, PRIOR TO THE RESALE RESTRICTION TERMINATION DATE (AS DEFINED BELOW), THIS NOTE AND ANY SHARES OF COMMON STOCK ISSUABLE UPON CONVERSION OF THIS NOTE MAY NOT BE OFFERED, RESOLD OR OTHERWISE TRANSFERRED, EXCEPT:

(A) TO BLOOM ENERGY CORPORATION (THE “COMPANY”) OR ANY SUBSIDIARY THEREOF;

(B) PURSUANT TO, AND IN ACCORDANCE WITH, A REGISTRATION STATEMENT THAT IS EFFECTIVE UNDER THE SECURITIES ACT AT THE TIME OF SUCH TRANSFER;

(C) TO A PERSON THAT YOU REASONABLY BELIEVE TO BE A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT OR TO A PERSON THAT YOU REASONABLY BELIEVE TO BE AN ACCREDITED INVESTOR AS DEFINED IN RULE 501(A) OF REGULATION D UNDER THE SECURITIES ACT; OR

(D) UNDER ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (INCLUDING, IF AVAILABLE, THE EXEMPTION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT).

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THE “RESALE RESTRICTION TERMINATION DATE” MEANS THE LATER OF: (1) THE DATE THAT IS ONE YEAR AFTER THE LAST DATE OF ORIGINAL ISSUANCE OF THE NOTES OR SUCH SHORTER PERIOD OF TIME PERMITTED BY RULE 144 OR ANY SUCCESSOR PROVISION THERETO; AND (2) SUCH OTHER DATE AS MAY BE REQUIRED BY APPLICABLE LAW.

WITH RESPECT TO ANY TRANSFER PURSUANT TO THE FOREGOING CLAUSE WITH RESPECT TO AN ACCREDITED INVESTOR AND CLAUSE (D), IN EACH CASE PRIOR TO THE RESALE RESTRICTION TERMINATION DATE, THE COMPANY AND THE NOTE REGISTRAR RESERVE THE RIGHT TO REQUIRE THE DELIVERY OF SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS THEY MAY REASONABLY REQUIRE AND MAY RELY UPON TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.

No transfer of any Note prior to the Resale Restriction Termination Date will be registered by the Note Registrar unless the applicable box on the Form of Assignment and Transfer has been checked.

Any Note (or security issued in exchange or substitution therefor) (i) as to which such restrictions on transfer shall have expired in accordance with their terms such that they may be transferred without volume or manner of sale limits under Rule 144 and any applicable state securities laws, (ii) that has been transferred pursuant to, and in accordance with, a registration statement that has become effective or been declared effective under the Securities Act and that continues to be effective at the time of such transfer or (iii) that has been sold pursuant to the exemption from registration provided by Rule 144 or any similar provision then in force under the Securities Act, and such that such Note is no longer a “restricted security” as defined under Rule 144 may, upon surrender of such Note for exchange to the Note Registrar in accordance with the provisions of this Section 2.05, be exchanged for a new Note or Notes, of like tenor and aggregate principal amount, which shall not bear the restrictive legend required by this Section 2.05(c) and shall not be assigned a restricted CUSIP number. The Company shall be entitled to instruct the Custodian in writing to so surrender any Global Note as to which any of the conditions set forth in clause (i) through (iii) of the immediately preceding sentence have been satisfied, and, upon such instruction, the Custodian shall so surrender such Global Note for exchange; and any new Global Note so exchanged therefor shall not bear the restrictive legend specified in this Section 2.05(c) and shall not be assigned a restricted CUSIP number. If the Holder of a Physical Note that bears such a restrictive legend and is no longer required to bear such restrictive legend under this Section 2.05(c) surrenders such Note to the Note Registrar for exchange, the Note Registrar shall promptly so notify the Company in writing, and the Company shall promptly execute a Physical Note in the name of such Holder that does not bear such a restrictive legend, of like tenor and aggregate principal amount, and shall deliver such executed Physical Note to the Trustee, along

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with a Company Order and an Opinion of Counsel and an Officer’s Certificate, for authentication and delivery of such Physical Note, and the Trustee shall promptly authenticate such Physical Note and deliver it to such Holder or otherwise in accordance with such Holder’s instructions, and the Trustee shall promptly thereafter cancel the Physical Note bearing such restrictive legend. The Company shall promptly notify the Trustee upon the occurrence of the Resale Restriction Termination Date and promptly after a registration statement, if any, with respect to the Notes or any Common Stock issued upon conversion of the Notes has been declared effective under the Securities Act. The Company shall complete any exchange process for the removal of a restrictive legend required by this Section 2.05(c) in accordance with the terms of this Indenture, the applicable procedures of the Depositary (in the case of a Global Note) and applicable securities laws.

Notwithstanding any other provisions of this Indenture (other than the provisions set forth in this Section 2.05(c)), a Global Note may not be transferred as a whole or in part except (i) by the Depositary to a nominee of the Depositary or by a nominee of the Depositary to the Depositary or another nominee of the Depositary or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary and (ii) for exchange of a Global Note or a portion thereof for one or more Physical Notes in accordance with the second immediately succeeding paragraph.

The Depositary shall be a clearing agency registered under the Exchange Act. The Company initially appoints The Depository Trust Company to act as Depositary with respect to each Global Note, if any. Unless the Depositary is unwilling or unable to act as depositary for any issued and authenticated Global Note, any issued and authenticated Global Note shall be issued to the Depositary, registered in the name of Cede & Co., as the nominee of the Depositary, and deposited with the Trustee as Custodian. The Trustee shall have no liability or responsibility for the action or inaction of the Depositary or any other clearing agency.

If after the issuance and authentication of a Global Note (i) the Depositary notifies the Company that the Depositary is unwilling or unable to continue as depositary for the Global Notes and a successor depositary is not appointed within 90 calendar days, (ii) the Depositary ceases to be registered as a clearing agency under the Exchange Act and a successor depositary is not appointed within 90 calendar days or (iii) an Event of Default with respect to the Notes has occurred and is continuing and a beneficial owner of any Note requests that its beneficial interest therein be exchanged for a Physical Note, the Company shall execute, and the Trustee, upon receipt of an Officer’s Certificate, an Opinion of Counsel and a Company Order for the authentication and delivery of Notes, shall authenticate and deliver (x) in the case of clause (iii), a Physical Note to such beneficial owner in a principal amount equal to the principal amount of such Note corresponding to such beneficial owner’s beneficial interest and (y) in the case of clause (i) or (ii), Physical Notes to each beneficial owner of the related Global Notes (or a portion thereof) in an aggregate principal amount equal to the aggregate principal amount of such Global Notes in exchange for such Global Notes, and upon delivery of the Global Notes to the Trustee such Global Notes shall be canceled.

Physical Notes issued in exchange for all or a part of the Global Note pursuant to this Section 2.05(c) shall be registered in such names and in such authorized denominations as the Depositary, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Trustee in writing. Upon execution and authentication, the Trustee shall deliver such Physical Notes to the Persons in whose names such Physical Notes are so registered.

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At such time as all interests in a Global Note have been converted, canceled, repurchased or transferred, such Global Note shall be, upon receipt thereof, canceled by the Trustee in accordance with standing procedures and existing instructions between the Depositary and the Custodian. At any time prior to such cancellation, if any interest in a Global Note is exchanged for Physical Notes, converted, canceled, repurchased or transferred to a transferee who receives Physical Notes therefor or any Physical Note is exchanged or transferred for part of such Global Note, the principal amount of such Global Note shall, in accordance with the standing procedures and instructions existing between the Depositary and the Custodian, be appropriately reduced or increased, as the case may be, and an endorsement shall be made on such Global Note, by the Trustee or the Custodian, at the direction of the Trustee, to reflect such reduction or increase.

None of the Company, the Trustee, the Collateral Agent, the Paying Agent or any agent of the Company, the Trustee, the Collateral Agent or the Paying Agent shall have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests of a Global Note or maintaining, supervising or reviewing any records relating to such beneficial ownership interests.

Notwithstanding any other provisions of this Indenture (other than the provisions set forth in this Section 2.05(c)), when Physical Notes are presented to the Note Registrar with a written request: (x) to register the transfer of such Physical Notes; or (y) to exchange such Physical Notes for an equal principal amount of Physical Notes of other authorized denominations or for an equal principal amount of a Global Note, the Note Registrar shall register the transfer or make the exchange as requested if its reasonable requirements for such transaction are met; provided, however, that the Physical Notes surrendered for transfer or exchange: (i) shall be duly endorsed or accompanied by a written instrument of transfer in form reasonably satisfactory to the Company and the Note Registrar, duly executed by the Holder thereof or its attorney duly authorized in writing; and (ii) so long as such Notes bear a restrictive legend, such Notes may only be transferred or exchanged in accordance with such restrictive legend and the Form of Assignment and Transfer, and if such Physical Notes are being transferred pursuant to an exemption from registration under the Securities Act, (1) a certification to that effect (in the Form of Assignment and Transfer, if applicable) and (2) if the Company or the Trustee so requests and to the extent contemplated by such restrictive legend, an Opinion of Counsel in form and substance reasonably satisfactory to the Company as to the compliance with the restrictions set forth in the legend thereon. In addition, prior to the Lock-up Release Date, in addition to the other requirements described herein, each transferee of Notes shall execute and deliver to the Company a Restriction Agreement prior to taking possession of the Notes. Neither the Trustee nor the Conversion agent shall have any duty to determine whether the Lock-Up Release Date has occurred or whether any transferee of the Notes has delivered a Restriction Agreement to the Company.

The Trustee and the Collateral Agent shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under applicable law with respect to any transfer of any interest in any Note (including any transfers between or among participants of the Depositary or beneficial owners of

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interests in any Global Note) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by the terms of, this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof.

Neither the Trustee nor any agent of the Trustee shall have any responsibility or liability for any action taken or not taken by the Depositary.

(d) Legends on the Common Stock:

(i) Until the Resale Restriction Termination Date, any stock certificate representing Common Stock issued upon conversion of a Note that bears the legend set forth in Section 2.05(c) shall bear a legend in substantially the following form (unless such Common Stock has been transferred pursuant to, and in accordance with, a registration statement that has become effective or been declared effective under the Securities Act and that continues to be effective at the time of such transfer, or pursuant to the exemption from registration provided by Rule 144 or any similar provision then in force under the Securities Act, or such Common Stock has been issued upon conversion of a Note that has transferred pursuant to, and in accordance with, a registration statement that has become effective or been declared effective under the Securities Act and that continues to be effective at the time of such transfer, or pursuant to the exemption from registration provided by Rule 144 or any similar provision then in force under the Securities Act, or unless otherwise agreed by the Company with written notice thereof to the Trustee and any transfer agent for the Common Stock):

THE SALE OF THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND ACCORDINGLY, PRIOR TO THE RESALE RESTRICTION TERMINATION DATE (AS DEFINED BELOW), THIS SECURITY MAY NOT BE OFFERED, RESOLD, OR OTHERWISE TRANSFERRED, EXCEPT:

(A) TO BLOOM ENERGY CORPORATION (THE “COMPANY”) OR ANY SUBSIDIARY THEREOF;

(B) PURSUANT TO, AND IN ACCORDANCE WITH, A REGISTRATION STATEMENT THAT IS EFFECTIVE UNDER THE SECURITIES ACT AT THE TIME OF SUCH TRANSFER;

(C) TO A PERSON THAT YOU REASONABLY BELIEVE TO BE A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A (IF AVAILABLE) UNDER THE SECURITIES ACT OR TO A PERSON THAT YOU REASONABLY BELIEVE TO BE AN ACCREDITED INVESTOR AS DEFINED IN RULE 501(A) OF REGULATION D UNDER THE SECURITIES ACT; OR

(D) UNDER ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (INCLUDING, IF AVAILABLE, THE EXEMPTION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT).

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THE “RESALE RESTRICTION TERMINATION DATE” MEANS THE LATER OF: THE DATE THAT IS ONE YEAR AFTER THE LAST DATE OF ORIGINAL ISSUANCE OF THE COMPANY’S 5.0% CONVERTIBLE SENIOR SECURED PIK NOTES DUE 2020 OR SUCH SHORTER PERIOD OF TIME PERMITTED BY RULE 144 OR ANY SUCCESSOR PROVISION THERETO; AND (2) SUCH OTHER DATE AS MAY BE REQUIRED BY APPLICABLE LAW.

WITH RESPECT TO ANY TRANSFER PURSUANT TO THE FOREGOING CLAUSE (C) WITH RESPECT TO AN ACCREDITED INVESTOR AND CLAUSE (D), IN EACH CASE PRIOR TO THE RESALE RESTRICTION TERMINATION DATE, THE COMPANY AND THE COMPANY’S TRANSFER AGENT RESERVE THE RIGHT TO REQUIRE THE DELIVERY OF SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS THEY MAY REASONABLY REQUIRE AND MAY RELY UPON TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.

(ii) Any such Common Stock (i) as to which such restrictions on transfer shall have expired in accordance with their terms, (ii) that has been transferred pursuant to, and in accordance with, a registration statement that has become effective or been declared effective under the Securities Act and that continues to be effective at the time of such transfer or (iii) that has been sold pursuant to the exemption from registration provided by Rule 144 or any similar provision then in force under the Securities Act, may, upon surrender of the certificates representing such shares of Common Stock for exchange in accordance with the procedures of the transfer agent for the Common Stock, be exchanged for a new certificate or certificates for a like aggregate number of shares of Common Stock, which shall not bear the restrictive legend required by this Section 2.05(d).

(iii) Until the Lock-up Release Date, any stock certificate representing Common Stock issued upon conversion of a Note (other than in connection with a Change of Control prior to the Qualified IPO) shall bear a legend in substantially the following form:

THIS SECURITY MAY NOT BE TRANSFERRED OR OTHERWISE DISPOSED OF PRIOR TO THE DAY THAT IS ON OR AFTER THE EARLIEST TO OCCUR OF (1) THE DAY THAT IS 180 DAYS FOLLOWING THE DATE OF THE FINAL PROSPECTUS FOR THE QUALIFIED IPO, (2) IF ALL EXECUTIVE OFFICERS, DIRECTORS AND SHAREHOLDERS OF MORE THAN 1% OF THE COMMON EQUITY OF THE COMPANY ENTER INTO CUSTOMARY LOCK-UP AGREEMENTS WITH THE APPLICABLE UNDERWRITERS IN CONNECTION WITH THE QUALIFIED IPO, THE EARLIEST DAY ON WHICH ANY SUCH LOCK-UP AGREEMENTS EXPIRE, (3) IF LESS THAN ALL EXECUTIVE OFFICERS, DIRECTORS AND SHAREHOLDERS OF MORE THAN 1% OF THE COMMON EQUITY OF THE COMPANY ENTER INTO CUSTOMARY LOCK-UP AGREEMENTS WITH THE APPLICABLE UNDERWRITERS IN CONNECTION WITH THE QUALIFIED IPO, THE DAY THAT THE QUALIFIED IPO IS CONSUMMATED AND (4)

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SUCH DATE ON WHICH THE LOCK-UP AGREEMENTS OTHERWISE TERMINATE OR EXPIRE. “QUALIFIED IPO” MEANS A FIRMLY UNDERWRITTEN REGISTERED PUBLIC OFFERING OF COMMON STOCK, PAR VALUE $0.0001 PER SHARE, OF THE COMPANY (THE “COMMON STOCK”) THAT RESULTS IN AGGREGATE GROSS PROCEEDS TO THE COMPANY OF AT LEAST $150.0 MILLION, AND AFTER WHICH THE COMMON STOCK IS LISTED FOR TRADING OR QUOTED ON THE NEW YORK STOCK EXCHANGE, THE NASDAQ GLOBAL SELECT MARKET OR THE NASDAQ GLOBAL MARKET (OR ANY OF THEIR RESPECTIVE SUCCESSORS).

(e) Notwithstanding the foregoing, the Company shall, upon a Holder’s request, remove the foregoing legend on any stock certificate representing Common Stock issued upon conversion of a Note prior to the Lock-up Release Date to the extent contemplated in the lock-up agreement, if any, such Holder enters into pursuant to its Restriction Agreement. Any Note or Common Stock issued upon the conversion or exchange of a Note that is repurchased or owned by any Affiliate of the Company (or any Person who was an Affiliate of the Company at any time during the three months preceding) may not be resold by such Affiliate (or such Person, as the case may be) unless registered under the Securities Act or resold pursuant to an exemption from the registration requirements of the Securities Act in a transaction that results in such Note or Common Stock, as the case may be, no longer being a “restricted security” (as defined under Rule 144). The Company shall cause any Note that is repurchased or owned by it to be surrendered to the Trustee for cancellation in accordance with Section 2.08.

Section 2.06 Mutilated, Destroyed, Lost or Stolen Notes. In case any Note shall become mutilated or be destroyed, lost or stolen, the Company in its discretion may execute, and upon receipt of a Company Order the Trustee or an authenticating agent appointed by the Trustee shall authenticate and deliver, a new Note, bearing a registration number not contemporaneously outstanding, in exchange and substitution for the mutilated Note, or in lieu of and in substitution for the Note so destroyed, lost or stolen. In every case the applicant for a substituted Note shall furnish to the Company, to the Trustee and, if applicable, to such authenticating agent such security or indemnity as may be required by them to hold each of them harmless from any loss, liability, cost or expense caused by or connected with such substitution, and, in every case of destruction, loss or theft, the applicant shall also furnish to the Company, to the Trustee and, if applicable, to such authenticating agent evidence to their satisfaction of the destruction, loss or theft of such Note and of the ownership thereof.

The Trustee or such authenticating agent may authenticate any such substituted Note and deliver the same upon the receipt of such security or indemnity as the Trustee, the Company and, if applicable, such authenticating agent may require. No service charge shall be imposed on the Holder by the Company, the Trustee, the Note Registrar, any co-Note Registrar or the Paying Agent upon the issuance of any substitute Note, but the Company may require a Holder to pay a sum sufficient to cover any documentary, stamp or similar issue or transfer tax required in connection therewith as a result of the name of the Holder of the new substitute Note being different from the name of the Holder of the old Note that became mutilated or was destroyed, lost or stolen. In case any Note that has matured or is about to mature or has been surrendered for repurchase in accordance with Article 15 or redemption in accordance with Article 13 or is about to be converted in accordance with Article 14 shall become mutilated or be destroyed, lost or stolen, the Company may, in its sole discretion, instead of issuing a substitute Note, pay or

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authorize the payment of or convert or authorize the conversion of the same (without surrender thereof except in the case of a mutilated Note), as the case may be, if the applicant for such payment or conversion shall furnish to the Company, to the Trustee and, if applicable, to such authenticating agent such security or indemnity as may be required by them to hold each of them harmless for any loss, liability, cost or expense caused by or connected with such substitution, and, in every case of destruction, loss or theft, evidence satisfactory to the Company, the Trustee and, if applicable, any Paying Agent or Conversion Agent evidence of their satisfaction of the destruction, loss or theft of such Note and of the ownership thereof.

Every substitute Note issued pursuant to the provisions of this Section 2.06 by virtue of the fact that any Note is destroyed, lost or stolen shall constitute an additional contractual obligation of the Company, whether or not the destroyed, lost or stolen Note shall be found at any time, and shall be entitled to all the benefits of (but shall be subject to all the limitations set forth in) this Indenture equally and proportionately with any and all other Notes duly issued hereunder. To the extent permitted by law, all Notes shall be held and owned upon the express condition that the foregoing provisions are exclusive with respect to the replacement, payment, conversion or repurchase of mutilated, destroyed, lost or stolen Notes and shall preclude any and all other rights or remedies notwithstanding any law or statute existing or hereafter enacted to the contrary with respect to the replacement, payment, conversion or repurchase of negotiable instruments or other securities without their surrender.

Section 2.07 Temporary Notes. Pending the preparation of Physical Notes, the Company may execute and the Trustee or an authenticating agent appointed by the Trustee shall, upon receipt of a Company Order, authenticate and deliver temporary Notes (printed or lithographed). Temporary Notes shall be issuable in any authorized denomination, and substantially in the form of the Physical Notes but with such omissions, insertions and variations as may be appropriate for temporary Notes, all as may be determined by the Company. Every such temporary Note shall be executed by the Company and authenticated by the Trustee or such authenticating agent upon the same conditions and in substantially the same manner, and with the same effect, as the Physical Notes. Without unreasonable delay, the Company shall execute and deliver to the Trustee or such authenticating agent Physical Notes (other than any Global Note) and thereupon any or all temporary Notes (other than any Global Note) may be surrendered in exchange therefor, at each office or agency maintained by the Company pursuant to Section 4.02 and the Trustee or such authenticating agent shall, upon receipt of a Company Order, authenticate and deliver in exchange for such temporary Notes an equal aggregate principal amount of Physical Notes. Such exchange shall be made by the Company at its own expense and without any charge therefor. Until so exchanged, the temporary Notes shall in all respects be entitled to the same benefits and subject to the same limitations under this Indenture as Physical Notes authenticated and delivered hereunder.

Section 2.08 Cancellation of Notes Paid, Converted, Etc. The Company shall cause all Notes surrendered for the purpose of payment, redemption, repurchase, registration of transfer or exchange or conversion, if surrendered to any Person other than the Trustee (including any of the Company’s agents, Subsidiaries or Affiliates), to be surrendered to the Trustee for cancellation. All Notes delivered to the Trustee shall be canceled promptly by it in accordance with its customary procedures, and, except for Notes surrendered for registration of transfer or exchange, no Notes shall be authenticated in exchange thereof except as expressly permitted by any of the

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provisions of this Indenture. The Trustee shall dispose of canceled Notes in accordance with its customary procedures and, after such cancellation, shall deliver a certificate of such cancellation to the Company, at the Company’s written request in a Company Order.

Section 2.09 CUSIP Numbers. The Company in issuing the Notes may use “CUSIP” numbers (if then generally in use), and, if so, the Trustee shall use “CUSIP” numbers in all notices issued to Holders as a convenience to such Holders; provided that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Notes or on such notice and that reliance may be placed only on the other identification numbers printed on the Notes. The Company shall promptly notify the Trustee in writing of any change in the “CUSIP” numbers.

Section 2.10 Additional Notes; Repurchases. The Company may, without the consent of the Holders and notwithstanding Section 2.01, reopen this Indenture and issue Additional Notes hereunder with the same terms as the Notes initially issued hereunder (except for any differences in issue date, issue price and interest accrued, if any) in an aggregate principal amount that, when taken together with the Initial Notes and all other Additional Notes (for the avoidance of doubt, not including any PIK Notes), in each case, then outstanding, does not exceed $235,000,000; provided that if any such Additional Notes are not fungible with the Notes initially issued hereunder for U.S. federal income tax and securities law purposes, such Additional Notes shall have a separate CUSIP number (if any) to the extent any Notes initially issued hereunder in the form of a Physical Note have been exchanged for a beneficial interest in a Global Note pursuant to Section 2.05(b). Prior to the issuance of any such Additional Notes, the Company shall deliver to the Trustee a Company Order, an Officer’s Certificate and an Opinion of Counsel, such Officer’s Certificate and Opinion of Counsel to provide, in addition to those matters required by Section 18.05, that the Additional Notes have been duly authorized by the Company and are enforceable against the Company in accordance with their terms, subject to customary exceptions, including for bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws of general application affecting the rights and remedies of creditors and to general principles of equity (including, without limitation, concepts of materiality, reasonableness, good faith, fair dealing and unconscionability), regardless of whether considered in a proceeding in equity or law, and such other items as the Trustee may reasonably request. In addition, the Company may, to the extent permitted by law, and directly or indirectly (regardless of whether such Notes are surrendered to the Company), repurchase Notes in the open market or otherwise, whether by the Company or its Subsidiaries or through a private or public tender or exchange offer or through counterparties to private agreements, including by cash-settled swaps or other derivatives. The Company shall cause any Notes so repurchased (other than Notes repurchased pursuant to cash-settled swaps or other derivatives) to be surrendered to the Trustee for cancellation in accordance with Section 2.08, and such Notes shall no longer be considered outstanding hereunder upon their repurchase.

ARTICLE 3

SATISFACTION AND DISCHARGE

Section 3.01 Satisfaction and Discharge. This Indenture and the Notes and the Note Guarantees, shall upon request of the Company contained in an Officer’s Certificate cease to be of further effect, and the Trustee, at the expense of the Company, shall execute such instruments

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reasonably requested by the Company acknowledging satisfaction and discharge of this Indenture and the Notes and the Note Guarantees, when (a) (i) all outstanding Notes theretofore authenticated and delivered (other than (x) Notes which have been destroyed, lost or stolen and which have been replaced, paid or converted as provided in Section 2.06 and (y) Notes for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Company and thereafter repaid to the Company or discharged from such trust, as provided in Section 4.04(d)) have been delivered to the Trustee for cancellation; or (ii) the Company has deposited with the Trustee or delivered to Holders, as applicable, after the Notes have become due and payable, whether on the Maturity Date, any Redemption Date, any Fundamental Change Repurchase Date, any Specified Repurchase Date, any Change of Control Repurchase Date, upon conversion or otherwise, cash or, solely to satisfy the Company’s Conversion Obligation or Change of Control Conversion Obligation, as the case may be, shares of Common Stock and cash in lieu of fractional shares sufficient to pay all of the outstanding Notes or satisfy all outstanding conversions, as the case may be, and pay all other sums due and payable under this Indenture by the Company (for the avoidance of doubt, the Company will deliver any shares of common stock to be paid with respect to satisfying outstanding conversions directly to the applicable Holders); and (b) the Company has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture have been complied with. Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Company to the Trustee and the Collateral Agent under Section 7.06 and Section 17.11 shall survive.

ARTICLE 4

PARTICULAR COVENANTS OF THE COMPANY AND THE GUARANTORS

Section 4.01 Payment of Principal and Interest. The Company covenants and agrees that it will pay or cause to be paid the principal (including the Fundamental Change Repurchase Price, Specified Repurchase Date Price, Change of Control Repurchase Price, Provisional Redemption Price and Change of Control Redemption Price, if applicable) of, and accrued and unpaid interest (whether Cash Interest or PIK Interest) on, each of the Notes at the places, at the respective times and in the manner provided herein and in the Notes. PIK Interest will be considered paid on the date due if on such date (1) in the case of Physical Notes, PIK Notes in certificated form have been issued and authenticated in accordance with the terms of this Indenture and (2) in the case of Global Notes, the Company has directed the Trustee to increase the principal amount of the Notes then authenticated by the required amount (or, if required pursuant to the applicable procedures of the Depositary, authenticated additional Global Notes) in accordance with the terms of this Indenture.

Section 4.02 Maintenance of Office or Agency. The Company will maintain in the United States of America an office or agency where the Notes may be surrendered for registration of transfer or exchange or for presentation for payment or repurchase (“Paying Agent”) or for conversion (“Conversion Agent”) and where notices in respect of the Notes and this Indenture may be delivered. The Company will give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made at or delivered to the Corporate Trust Office or the office or agency of the Trustee in the United States of America so designated by the Trustee as a place where Notes may be presented for payment or for registration or transfer.

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The Company may also from time to time designate as co-Note Registrars one or more other offices or agencies where the Notes may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided that no such designation or rescission shall in any manner relieve the Company of its obligation to maintain an office or agency in the United States of America for such purposes. The Company will give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency. The terms “Paying Agent” and “Conversion Agent” include any such additional or other offices or agencies, as applicable.

The Company hereby initially designates the Trustee as the Paying Agent, Note Registrar, Custodian and Conversion Agent and the Corporate Trust Office as the office or agency in the United States of America where Notes may be surrendered for registration of transfer or exchange or for presentation for payment or repurchase or for conversion and where notices and demands in respect of the Notes and this Indenture may be delivered.

Section 4.03 Appointments to Fill Vacancies in Trustee’s Capacity. The Company, whenever necessary to avoid or fill a vacancy in the capacity of Trustee, will appoint, in the manner provided in Section 7.09, a Trustee, so that there shall at all times be a Trustee hereunder.

Section 4.04 Provisions as to Paying Agent.

(a) If the Company shall appoint a Paying Agent other than the Trustee, the Company will cause such Paying Agent to execute and deliver to the Trustee an instrument in which such agent shall agree with the Trustee, subject to the provisions of this Section 4.04(a):

(i) that it will hold all sums held by it as such agent for the payment of the principal (including the Fundamental Change Repurchase Price, Specified Repurchase Date Price, Change of Control Repurchase Price, Change of Control Redemption Price and Provisional Redemption Price, if applicable) of, and accrued and unpaid Cash Interest on, the Notes in trust for the benefit of the Holders of the Notes;

(ii) that it will give the Trustee prompt written notice of any failure by the Company to make any payment of the principal (including the Fundamental Change Repurchase Price, Specified Repurchase Date Price, Change of Control Repurchase Price, Change of Control Redemption Price and Provisional Redemption Price, if applicable) of, and accrued and unpaid Cash Interest on, the Notes when the same shall be due and payable; and

(iii) that at any time during the continuance of an Event of Default, upon request of the Trustee, it will forthwith pay to the Trustee all sums so held in trust.

The Company shall, on or before each due date of the principal (including the Fundamental Change Repurchase Price, Specified Repurchase Date Price, Change of Control Repurchase Price, Change of Control Redemption Price and Provisional Redemption Price, if applicable) of, or accrued and unpaid Cash Interest on, the Notes, deposit with the Paying Agent a

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sum sufficient to pay such principal (including the Fundamental Change Repurchase Price, Specified Repurchase Date Price, Change of Control Repurchase Price, Change of Control Redemption Price and Provisional Redemption Price, if applicable) or accrued and unpaid Cash Interest, and (unless such Paying Agent is the Trustee) the Company will promptly notify the Trustee in writing of any failure to take such action; provided that if such deposit is made on the due date, such deposit must be received by the Paying Agent by 11:00 a.m., New York City time, on such date.

(b) If the Company shall act as its own Paying Agent, it will, on or before each due date of the principal (including the Fundamental Change Repurchase Price, Specified Repurchase Date Price, Change of Control Repurchase Price, Change of Control Redemption Price and Provisional Redemption Price, if applicable) of, and accrued and unpaid Cash Interest on, the Notes, set aside, segregate and hold in trust for the benefit of the Holders of the Notes a sum sufficient to pay such principal (including the Fundamental Change Repurchase Price, Specified Repurchase Date Price, Change of Control Repurchase Price, Change of Control Redemption Price and Provisional Redemption Price, if applicable) and accrued and unpaid Cash Interest so becoming due and will promptly notify the Trustee in writing of any failure to take such action and of any failure by the Company to make any payment of the principal (including the Fundamental Change Repurchase Price, Specified Repurchase Date Price, Change of Control Repurchase Price, Change of Control Redemption Price and Provisional Redemption Price, if applicable) of, or accrued and unpaid Cash Interest on, the Notes when the same shall become due and payable.

(c) Anything in Section 4.04(a) to the contrary notwithstanding, the Company may, at any time, for the purpose of obtaining a satisfaction and discharge of this Indenture, or for any other reason, pay, cause to be paid or deliver to the Trustee all sums or amounts held in trust by the Company or any Paying Agent hereunder as required by Section 4.04(a), such sums or amounts to be held by the Trustee upon the trusts herein contained and upon such payment or delivery by the Company or any Paying Agent to the Trustee, the Company or such Paying Agent shall be released from all further liability but only with respect to such sums or amounts.

(d) Any money or property deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the principal (including the Fundamental Change Repurchase Price, Specified Repurchase Date Price, Change of Control Repurchase Price, Change of Control Redemption Price and Provisional Redemption Price, if applicable) of, accrued and unpaid Cash Interest on and the consideration due upon conversion of any Note and remaining unclaimed for two years after such principal (including the Fundamental Change Repurchase Price, Specified Repurchase Date Price, Change of Control Repurchase Price, Change of Control Redemption Price and Provisional Redemption Price, if applicable), Cash Interest or consideration due upon conversion has become due and payable shall, subject to applicable abandoned property laws, be paid to the Company on request of the Company contained in an Officer’s Certificate, or (if then held by the Company) shall be discharged from such trust; and the Holder of such Note shall thereafter, as an unsecured general creditor, look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof, shall thereupon cease.

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(e) Upon any Event of Default pursuant to Section 6.01(h) or Section 6.01(i), the Trustee shall automatically be the Paying Agent.

(f) In the event that the Paying Agent receives funds in advance of any due date hereunder, the Paying Agent shall be entitled to invest such funds in the U.S. Bank Money Market Deposit Account or any substantially similar successor account, any earnings on which shall be for the account of the Company.

Section 4.05 Existence. Subject to Article 11, the Company shall do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence and, subject to Article 16, the Company and the Guarantors shall do or cause to be done all things necessary to preserve and keep in full force and effect the corporate, partnership or other existence of the Guarantors.

Section 4.06 Quarterly and Annual Reports and Rule 144A Information Requirement.

(a) Prior to the consummation of the Qualified IPO, the Company shall prepare and deliver to the Trustee and the Holders of Notes the following information:

(i) within 120 days after the end of each fiscal year of the Company:

(A) annual consolidated financial statements and the notes thereto (which shall be audited if the Company prepares audited annual financial statements) of the Company in respect of its most recently completed fiscal year, which annual consolidated financial statements and notes thereto will include the Company’s consolidated balance sheet as at the end of such fiscal year and its consolidated statements of income, stockholders’ equity and changes in cash flow of the Company for such fiscal year, prepared in accordance with generally accepted accounting principles consistently applied (and certified by independent public accountants if such financial statements and notes thereto are audited); and

(B) the Company’s then-current consolidated capitalization table as of the end of such fiscal year; and

(ii) within 45 days after the end of each of the Company’s first three fiscal quarters of each of the Company’s fiscal years beginning with the fiscal quarter ending March 31, 2016, unaudited consolidated financial statements and the notes thereto of the Company in respect of its most recently completed fiscal quarter, which consolidated financial statements and notes thereto will include an unaudited consolidated balance sheet as at the end of such fiscal quarter and an unaudited consolidated statement of income for such fiscal quarter, each prepared in accordance with generally accepted accounting principles consistently applied, and an unaudited consolidated statement of changes in cash flow for such fiscal quarter, which the Company shall use its reasonable best efforts to prepare in accordance with generally accepted accounting principles consistently applied.

By receiving such information, each Holder shall be deemed to agree that as a condition to receiving such information that such information is confidential and may not be used, reproduced,

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disclosed or disseminated to any other Person (other than its directors, members, partners, officers, employees, accountants, attorneys and other agents having a need to know the contents of such information and who are bound by confidentiality obligations at least as restrictive as those set forth in this paragraph) unless such information (1) has been made available to the public generally by the Company, (2) was in the Holder’s possession before receipt of such information pursuant to this Section 4.06(a), (3) is or becomes a matter of public knowledge through no action or inaction of such Holder that is prohibited by this paragraph, (4) is disclosed by the Company to a third party without a duty of confidentiality on such third party, (5) is required to be disclosed by such Holder (or its directors, members, partners, officers, employees, accountants, attorneys or other agents) under compulsion of law (whether by oral question, interrogatory, subpoena, civil investigative demand or otherwise) or by order or request of any court or governmental or regulatory body to whose supervisory authority such Holder, its directors, members, partners, officers, employees, accountants, attorneys or other agents, as the case may be, is subject; provided that, to the extent such Holder is subject to such compulsion of law or order and to the extent lawfully permitted to do so and other than in respect of any disclosure of such information made to any banking, financial, securities or similar supervisory or regulatory or governmental authority exercising its supervisory, examination or audit functions over such Holder, prior to providing such information, such Holder promptly provides the Company with written notice and, if the Company fail to obtain a protective order or other appropriate remedy with respect to the disclosure of such information, such Holder will furnish only that portion of the information that is so required to be disclosed, (6) is disclosed to a court, tribunal or any other applicable administrative agency or judicial authority in connection with the enforcement of such Holder’s rights under this indenture or (7) is disclosed by such Holder with the Company’s prior written consent. Notwithstanding the foregoing, Holders of Notes shall be permitted to share any information that the Company delivers pursuant to this Section 4.06(a) with prospective purchasers of the Notes so long as any such prospective purchaser (1) is not a Competitor of the Company, as reasonably determined by the Company, and (2) agrees in writing to the Company to abide by the confidentiality provisions described in this Section 4.06(a).

(b) If, at any time, the Company is not subject to Section 13 or 15(d) of the Exchange Act, the Company shall, so long as any of the Notes or any shares of Common Stock issuable upon conversion thereof shall, at such time, constitute “restricted securities” within the meaning of Rule 144(a)(3) under the Securities Act, upon the written request of any Holder, beneficial owner or prospective purchaser of Notes or any shares of Common Stock issuable upon the conversion of the Notes, promptly furnish such Holder, beneficial owner or prospective purchaser the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act to facilitate the resale of the Notes or such shares of Common Stock pursuant to Rule 144A, as such rule may be amended from time to time. The Company shall take such further action as any Holder or beneficial owner of the Notes or any shares of Common Stock issuable upon conversion of the Notes may reasonably request to the extent from time to time required to enable such Holder or beneficial owner to sell the Notes or any shares of Common Stock issuable upon conversion of the Notes in accordance with Rule 144A, as such rule may be amended from time to time.

(c) On and after the consummation of the Company’s first firmly underwritten registered public offering of Common Stock, the Company shall file with the Trustee, within 15 calendar days after the same are required to be filed with the Commission (giving effect to any

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grace period provided by Rule 12b-25 under the Exchange Act or any successor rule under the Exchange Act), copies of any documents or reports that the Company is required to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act (excluding, for the avoidance of doubt, any documents or reports (or portions thereof) that are subject to confidential treatment and any correspondence with the Commission). Any such document or report that the Company files with the Commission via the Commission’s EDGAR system (or any successor thereto) shall be deemed to be delivered and filed with the Trustee for purposes of this Section 4.06(c) at the time such documents are filed via the EDGAR system (or any successor thereto); provided, however, that the Trustee shall have no obligation whatsoever to determine whether or not such information, documents or reports have been filed pursuant to EDGAR (or its successor).

(d) Delivery of reports, information and documents to the Trustee under this Indenture is for informational purposes only and the information and the Trustee’s receipt of the foregoing shall not constitute constructive notice of any information contained therein, or determinable from information contained therein including the Company’s compliance with any of its covenants thereunder (as to which the Trustee is entitled to rely exclusively on an Officer’s Certificate).

(e) Within ten (10) Business Days following the Financial Statement Availability Date for a fiscal quarter, the Company shall deliver to the Trustee, and the Trustee shall provide to Holders upon request, a statement setting forth in reasonable detail the Company’s calculation of Collateral Value as of the last day of such fiscal quarter. In addition, the Company shall deliver to each Holder of the Notes a statement setting forth in reasonable detail the Company’s calculation of Investment Collateral Value with respect to a Significant Investment (or one or more Investments, which taken together would constitute a Significant Investment, that were not previously reported pursuant to this Section 4.06(e)) no later than ten (10) Business Days following the Calculation Date for such Significant Investment.

Section 4.07 Stay, Extension and Usury Laws. Each of the Company and the Guarantors, if any, covenants (to the extent that it may lawfully do so) that it shall not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law or other law that would prohibit or forgive the Company or any Guarantor from paying all or any portion of the principal of or interest on the Notes as contemplated herein, wherever enacted, now or at any time hereafter in force, or that may affect the covenants or the performance of this Indenture; and each of the Company and the Guarantors, if any, to the extent it may lawfully do so, hereby expressly waives all benefit or advantage of any such law, and covenants that it will not, by resort to any such law, hinder, delay or impede the execution of any power herein granted to the Trustee or the Collateral Agent, but will suffer and permit the execution of every such power as though no such law had been enacted.

Section 4.08 Compliance Certificate; Statements as to Defaults. The Company shall deliver to the Trustee within 120 calendar days after the end of each fiscal year of the Company (beginning with the fiscal year ending on December 31, 2015) an Officer’s Certificate stating whether the signer thereof knows of any Default or Event of Default that occurred during the previous fiscal year and, if so, specifying each such Default or Event of Default, its status and what actions the Company is taking or proposing to take with respect thereto.

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In addition, the Company shall deliver to the Trustee, as soon as possible, and in any event within 30 calendar days after becoming aware of any Event of Default or Default, written notice of such Event of Default or Default, its status and the action that the Company is taking or proposing to take in respect thereof.

Section 4.09 Further Instruments and Acts. Upon request of the Trustee, the Company will execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purposes of this Indenture.

Section 4.10 Restrictive Legend.

(a) Promptly following the Resale Restriction Termination Date, the Company shall use its commercially reasonable efforts to remove the restrictive legend on the Notes and assign an unrestricted CUSIP number to the Notes.

(b) If, and for so long as, the restrictive legend on the Notes has not been removed, the Notes are assigned a restricted CUSIP number or the Notes are not eligible for resale under Rule 144 under the Securities Act (without restrictions pursuant to U.S. securities laws or the terms of this Indenture or the Notes) by Holders other than Affiliates of the Company or Holders that were Affiliates of the Company at any time during the three months preceding as of the later of (i) the 375th day after the Issue Date and (ii) 5 Business Days following the consummation of the Company’s first firmly underwritten registered public offering of common stock, the Company shall pay Additional Interest on the Notes at a rate equal to 0.50% per annum of the principal amount of Notes outstanding until the restrictive legend has been removed from the Notes, the Notes are assigned an unrestricted CUSIP number and the Notes are eligible for resale under Rule 144 under the Securities Act (without restrictions pursuant to U.S. securities laws or the terms of this Indenture or the Notes) as described above by Holders other than Affiliates of the Company (or Holders that were Affiliates of the Company at any time during the three months preceding).

(c) Additional Interest pursuant to Section 4.10(b) above will be payable in arrears on each Interest Payment Date following accrual in the same manner and to the same persons as regular interest on the Notes.

(d) Subject to the immediately succeeding sentence, Additional Interest that is payable in accordance with Section 4.10(b) shall be in addition to, and not in lieu of, any Additional Interest that may be payable as a result of the Company’s election pursuant to Section 6.04. However, in no event shall any Additional Interest (including any Additional Interest that may accrue as a result of the Company’s election pursuant to Section 6.04) accrue at a rate per year in excess of 0.50% per annum, regardless of the number of events or circumstances giving rise to the requirement to pay such Additional Interest.

(e) If Additional Interest is payable by the Company pursuant to Section 4.06 or Section 4.10(b), the Company shall deliver to the Trustee an Officer’s Certificate to that effect stating (i) the amount of such Additional Interest that is payable and (ii) the date on which such Additional Interest is payable. Unless and until a Responsible Officer of the Trustee receives at the Corporate Trust Office such a certificate, the Trustee may assume without inquiry that no such Additional Interest is payable, and the Trustee shall have no duty to verify the Company’s

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calculation of Additional Interest. If the Company has paid Additional Interest directly to the Persons entitled to it, the Company shall deliver to the Trustee an Officer’s Certificate setting forth the particulars of such payment.

Section 4.11 Qualified IPO. The Company shall provide notice to Holders, the Trustee and the Conversion Agent (if other than the Trustee) of the consummation of the Qualified IPO no later than two Business Days following the consummation of the Qualified IPO.

Section 4.12 Lock-up Release Date. The Company shall notify Holders of the Notes (and use its commercially reasonable efforts to notify any person who previously received shares of Common Stock upon conversion of the notes other than in connection with a Change of Control prior to the Qualified IPO), the Trustee and the Conversion Agent (if other than the Trustee) of the occurrence of the Lock-up Release Date no later than two Business Days following the Lock-up Release Date.

Section 4.13 Limitation on Investments. Neither the Company nor any Guarantor shall, directly or indirectly, make any Restricted Investment.

Section 4.14 Maintenance of Collateral. If, as of the last day of any fiscal quarter of the Company, the Collateral Value does not equal or exceed the Threshold Amount as of such date, then the Company shall, solely to the extent assets not already pledged to secure the Notes are owned by one or more of its Subsidiaries that are not PPA Companies, Guarantors, Pledged Foreign Subsidiaries or Foreign Subsidiaries, and which assets would constitute Eligible Assets if such Subsidiary or Subsidiaries were Guarantors (“Available Eligible Assets”), promptly after the Financial Statement Availability Date in respect of such fiscal quarter, cause to be pledged to secure the Notes such Available Eligible Assets with a Book Value at least equal to the lesser of the Book Value of all Available Eligible Assets and (ii) the amount sufficient to cause the Collateral Value to equal the Threshold Amount. The Company shall promptly provide written notice to the Trustee and the Collateral Agent if the Available Eligible Assets to be pledged require the entry into Deposit Account Control Agreements pursuant to Section 4.04(b) of the Security Agreement. Notwithstanding the foregoing, the Collateral Value as of September 30, 2015 will be deemed to be $381,849,290.

Section 4.15 Adjustment to Conversion Rate. Prior to the Qualified IPO, to the extent the Company (or any Subsidiary thereof) includes any price-based anti-dilution adjustment in an instrument governing convertible debt or preferred stock (“Other Instrument”) of the Company (or exchangeable debt of a Subsidiary of the Company that is exchangeable into Common Stock) issued in a bona fide financing transaction for the purpose of raising capital that results in an adjustment to the conversion price or conversion rate of such Other Instrument as a result of issuances of Capital Stock below the conversion price or conversion rate of such Other Instrument that is in any material respect more favorable to the holder of such instrument than the price-based anti-dilution adjustments included in Section 14.05 hereof are to the Holders, the Company shall promptly after the effectiveness of such instrument prepare a supplement to this Indenture granting any such price-based anti-dilution adjustment to the Holders of Notes; provided that notwithstanding the foregoing, no adjustment shall be made on account of any anti- dilution adjustment applicable to the Company’s preferred stock outstanding on the Issue Date (the “Existing Preferred Stock”) or any anti-dilution adjustments applicable to future series of

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preferred stock that is substantially similar to the anti-dilution provisions applicable to the Existing Preferred Stock, in each case, as such provisions of the Existing Preferred Stock exist on the Issue Date.

Section 4.16 Mortgages. With respect to any real property (other than Non-Material Real Property) that is owned in fee simple by the Company or any Guarantor (collectively, the “Premises”), the Company or such Guarantor shall use commercially reasonable efforts to, within 180 days of the later of (x) the Issue Date and (y) the acquisition thereof, as applicable:

(a) deliver to the Collateral Agent, as mortgagee, for the benefit of the Holders, fully executed counterparts of Mortgages, duly executed by the Company or the applicable Guarantor, as the case may be, and corresponding Uniform Commercial Code (or similar) fixture filings, together with evidence of the completion (or satisfactory arrangements for the completion) of all recordings and filings of such Mortgages and corresponding Uniform Commercial Code (or similar) fixture filings as may be necessary to create a valid, perfected Lien in favor of the Collateral Agent, subject to Permitted Liens, against the Premises purported to be covered thereby;

(b) deliver to the Collateral Agent, (i) mortgagee’s title insurance policies in favor of the Collateral Agent in an amount equal to 100% of the fair market value of the Premises purported to be covered by the related Mortgages, insuring that title to such property is marketable and that the interests created by the Mortgage constitute valid Liens in favor of the Collateral Agent thereon free and clear of all Liens, defects and encumbrances other than Permitted Liens, and such policies shall also include, to the extent available and issued at ordinary rates, customary endorsements or such endorsements as the Collateral Agent may reasonably request (excluding endorsements related to mechanics lien coverage, creditors’ rights, environmental liens and survey matters (unless a satisfactory survey is made available) and shall be accompanied by evidence of the payment in full (or satisfactory arrangements for the payment in full) of all premiums thereon and (ii) such affidavits, certificates, instruments of indemnification and other items (including a so-called “gap” indemnification) as shall be reasonably required to induce the title insurer to issue the title insurance policies and endorsements referenced herein with respect to each of the Premises;

(c) deliver to the Collateral Agent current (other than the Delaware Property) and future real property surveys of such Premises;

(d) deliver Opinions of Counsel to the Collateral Agent in the jurisdictions where such Premises are located that such Mortgage has been duly authorized, executed and delivered by the Company or such Guarantor, constitutes a legal, valid, binding and enforceable obligation of the Company or such Guarantor and creates a valid perfected Lien in favor of the Collateral Agent, subject to Permitted Liens, against the Premises purported to be covered thereby; and

(e) such other information, documentation, and certifications as may be reasonably required by the Collateral Agent or necessary in order to create valid, perfected and subsisting Liens in favor of the Collateral Agent, subject to Permitted Liens, against the Premises covered by the Mortgages.

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Section 4.17 Additional Guarantors. The Company will cause each Subsidiary, other than any PPA Company or any Foreign Subsidiary, to, substantially concurrently with the pledge by such Subsidiary pursuant to Section 4.14, execute and deliver to the Trustee a supplemental indenture substantially in the form of Exhibit C attached hereto pursuant to which such Subsidiary shall unconditionally Guarantee, on a senior secured basis, all of the Company’s Obligations under the Indenture Documents on the terms set forth in this Indenture and the Security Documents until the Note Guarantee of such Person has been released in accordance with the provisions of this Indenture.

Section 4.18 Further Assurances. Subject to the limitations set forth herein and in the Security Documents, the Company and the Guarantors shall execute and deliver such further instruments and do such further acts as may be necessary, desirable or proper, or that the Trustee or Collateral Agent may reasonably request, to carry out more effectively the provisions of this Indenture.

The Company shall, and shall cause each Guarantor to, at their sole cost and expense, (i) execute and deliver all such agreements and instruments as shall be necessary or as the Collateral Agent shall reasonably request to more fully or accurately describe the property intended to be Collateral or the Obligations intended to be secured by the Security Documents and (ii) file any such notice filings, financing statements or other agreements or instruments as may be necessary, proper or desirable, or that the Collateral Agent may reasonably request, to attach and perfect (and maintain the attachment, perfection and priority) the Liens created by the Security Documents, subject to Permitted Liens and the Intercreditor Agreement, in each case subject to the terms of, and to the extent required by, the Security Documents.

Section 4.19 Intercreditor Agreement. Upon the incurrence by the Company of any Pari Passu Obligations, the Company shall deliver to the Trustee and the Collateral Agent a written request that the Collateral Agent execute and deliver the Intercreditor Agreement in the form set forth as Exhibit E, accompanied by an Officer’s Certificate and an Opinion of Counsel stating that the covenants and conditions precedent in this Indenture relating to the incurrence of such Pari Passu Obligations and the execution and delivery of the Intercreditor Agreement have been satisfied and upon receipt of such document, the Collateral Agent shall execute and deliver such Intercreditor Agreement.

ARTICLE 5

LISTS OF HOLDERS AND REPORTS BY THE COMPANY AND THE TRUSTEE

Section 5.01 Lists of Holders. The Company covenants and agrees that it will furnish or cause to be furnished to the Trustee and the Paying Agent, semi-annually, not more than 15 calendar days after each June 1 and December 1 in each year beginning with May 1, 2016, and at such other times as the Trustee may request in writing, within 30 calendar days after receipt by the Company of any such request (or such lesser time as the Trustee may reasonably request in order to enable it to timely provide any notice to be provided by it hereunder), a list in such form as the Trustee may reasonably require of the names and addresses of the Holders as of a date not more than 15 calendar days (or such other date as the Trustee may reasonably request in order to so provide any such notices) prior to the time such information is furnished, except that no such list need be furnished so long as the Trustee is acting as Note Registrar.

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Section 5.02 Preservation and Disclosure of Lists. The Trustee shall preserve, in as current a form as is reasonably practicable, all information as to the names and addresses of the Holders contained in the most recent list furnished to it as provided in Section 5.01 or maintained by the Trustee in its capacity as Note Registrar, if so acting. The Trustee may destroy any list furnished to it as provided in Section 5.01 upon receipt of a new list so furnished.

ARTICLE 6

DEFAULTS AND REMEDIES

Section 6.01 Events of Default. Each of the following events shall be an “Event of Default” with respect to the Notes:

(a) default in any payment of interest on any Note when due and payable, and the default continues for a period of 30 calendar days;

(b) default in the payment of principal of any Note when due and payable on the Maturity Date, upon any Redemption Date, any Specified Repurchase Date, any Fundamental Change Repurchase Date, any Change of Control Repurchase Date, upon declaration of acceleration or otherwise;

(c) failure by the Company to comply with its obligation to convert the Notes in accordance with this Indenture upon exercise of a Holder’s conversion right where such failure continues for a period of three Business Days;

(d) failure by the Company to issue a Notice of Redemption in accordance with Section 13.03, a notice of a Change of Control in accordance with Section 14.01, a Fundamental Change Company Notice, a Specified Repurchase Date Right Notice or a Change of Control Company Notice in accordance with Section 15.01(b), Section 15.02(b) or Section 15.03(b), notice of a Make-Whole Fundamental Change in accordance with Section 14.04(b), notice of the consummation of the Qualified IPO in accordance with Section 4.11, notice of the occurrence of the Lock-up Release Date in accordance with Section 4.12 or notice of the Make-Whole Provisions in accordance with Section 14.04(d), in each case, when due, and such failure continues for two Business Days after the due date for such notice;

(e) failure by the Company to comply with its obligations under Article 11;

(f) failure by the Company or any Guarantor for 60 calendar days after written notice from the Trustee or the Holders of at least 25% in principal amount of the Notes then outstanding has been received by the Company to comply with any other covenants and obligations of the Company or any Guarantor contained in the Indenture Documents;

(g) default by the Company, any Guarantor or any Significant Subsidiary with respect to any mortgage, agreement or other instrument under which there may be outstanding, or by which there may be secured or evidenced, any indebtedness for money borrowed of $15.0 million (or the foreign currency equivalent thereof) or more in the aggregate of the Company and/or any such Guarantor or Significant Subsidiary, whether such indebtedness now exists or shall hereafter be created (i) resulting in such indebtedness becoming or being declared due and payable, (ii) constituting a failure to pay the principal of any such indebtedness when due and payable at its

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stated maturity, upon required repurchase, upon declaration of acceleration or otherwise and in the cases of clauses (i) and (ii) such acceleration shall not have been rescinded or annulled or such failure to pay or default shall not have been cured or waived, or such indebtedness is not paid or discharged, as the case may be, within 30 calendar days after written notice to the Company by the Trustee or to the Company and the Trustee by Holders of at least 25% in aggregate principal amount of Notes then outstanding determined in accordance with Section 18.03 has been received, or (iii) prior to the consummation of the Qualified IPO, entitling any creditor or creditors of the Company, any Guarantor or any Significant Subsidiary after expiration of any applicable cure period to accelerate such indebtedness;

(h) the Company, any Guarantor or any Significant Subsidiary shall commence a voluntary case or other proceeding seeking liquidation, reorganization or other relief with respect to the Company or any such Guarantor or Significant Subsidiary or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of the Company or any such Guarantor or Significant Subsidiary or any substantial part of its property, or shall consent to any such relief or to the appointment of or taking possession by any such official in an involuntary case or other proceeding commenced against it, or shall make a general assignment for the benefit of creditors;

(i) an involuntary case or other proceeding shall be commenced against the Company or any Guarantor or Significant Subsidiary seeking liquidation, reorganization or other relief with respect to the Company or such Guarantor or Significant Subsidiary or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of the Company or such Guarantor or Significant Subsidiary or any substantial part of its property, and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 consecutive calendar days;

(j) any of the Guarantees by a Guarantor ceases to be in full force and effect or any of such Guarantees is declared by a court of competent jurisdiction to be null and void and unenforceable or any of such Guarantees is found by a court of competent jurisdiction to be invalid or any Guarantor denies its liability under its Guarantee (other than by reason of release of a Guarantor in accordance with the terms of this Indenture) and such event continues for ten (10) Business Days;

(k) (A) failure by the Company or any Guarantor to comply with any of its covenants or other obligations under any of the Security Documents for 15 calendar days after written notice from the Trustee or the Holders of at least 25% in principal amount of the Notes then outstanding has been received by the Company, (B) any of the Security Documents shall cease for any reason to be in full force and effect (other than in accordance with its terms or the terms of this Indenture), or the Company or a Guarantor, in each case that is a party to any of the Security Documents shall so assert in writing, or (C) the Lien created by any of the Security Documents, shall cease to be, or shall be asserted in writing by the Company or any Guarantor not to be, perfected (to the extent required by this Indenture or the Security Agreement) and enforceable in accordance with its terms or of the same effect as to perfection and priority purported to be created thereby with respect to any significant portion of the Collateral (other than in connection with any termination of such Lien in respect of any Collateral as permitted by this Indenture or by any of the Security Documents); or

(l) any failure by the Company or any Guarantor to comply with any of the covenants set forth in Section 4.13.

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Section 6.02 Acceleration; Rescission and Annulment. If one or more Events of Default shall have occurred and be continuing (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body), then, and in each and every such case (other than an Event of Default specified in Section 6.01(h) or Section 6.01(i) with respect to the Company), unless the principal of all of the Notes shall have already become due and payable, either the Trustee or the Holders of at least 25% in aggregate principal amount of the Notes then outstanding determined in accordance with Section 8.04, in each case, by notice in writing to the Company (and to the Trustee if given by Holders), may declare 100% of the principal amount of, and accrued and unpaid interest, if any, on all the Notes to be due and payable in cash immediately, and upon any such declaration the same shall become and shall automatically be immediately due and payable, anything contained in this Indenture or in the Notes to the contrary notwithstanding. If an Event of Default specified in Section 6.01(h) or Section 6.01(i) with respect to the Company occurs and is continuing, 100% of the principal amount of, and accrued and unpaid interest, if any, on, all Notes shall automatically become and be immediately due and payable in cash without any declaration or other act on the part of the Trustee or any Holder.

The immediately preceding paragraph, however, is subject to the conditions that if, at any time after the principal of the Notes shall have been so declared due and payable (or have become immediately due and payable), and before any judgment or decree for the payment of the monies due shall have been obtained or entered as hereinafter provided, if (1) the Company shall have paid or deposited with the Trustee a sum sufficient to pay all matured installments of accrued and unpaid interest upon the Notes and the principal of any and all Notes that shall have become due otherwise than by acceleration (with interest on such principal and, to the extent that such payment is enforceable under applicable law, on overdue installments of accrued and unpaid interest, at the rate borne by the Notes at such time) and amounts due to the Trustee pursuant to Section 7.06, (2) rescission would not conflict with any judgment or decree of a court of competent jurisdiction and (3) any and all existing Events of Default under this Indenture, other than the nonpayment of the principal of and accrued and unpaid interest, if any, on Notes that shall not have become due by their terms, shall have been remedied or waived pursuant to Section 6.09, then and in every such case (except as provided in the immediately succeeding sentence) the Holders of the Minimum Principal Amount of the Notes then outstanding, by written notice to the Company and to the Trustee, may waive all Defaults or Events of Default with respect to the Notes and rescind and annul such declaration and its consequences and such Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured for every purpose of this Indenture; but no such waiver or rescission and annulment shall extend to or shall affect any subsequent Default or Event of Default, or shall impair any right consequent thereon. Notwithstanding anything to the contrary herein, no such waiver or rescission and annulment shall extend to or shall affect any Default or Event of Default resulting from (i) the nonpayment of the principal (including the Fundamental Change Repurchase Price, Specified Repurchase Date Price,

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Change of Control Repurchase Price and Redemption Price, if applicable) of, or accrued and unpaid interest, if any, on, any Notes, (ii) a failure to repurchase any Notes when required under this Indenture, or (iii) a failure to pay or deliver, as the case may be, the consideration due upon conversion of the Notes.

Section 6.03 Payments of Notes on Default; Suit Therefor. If an Event of Default described in clause (a) or (b) of Section 6.01 shall have occurred, the Company shall, upon demand of the Trustee, pay to the Trustee, for the benefit of the Holders of the Notes, the whole amount then due and payable on the Notes for principal and interest, if any, with interest on any overdue principal and interest, if any, at the rate borne by the Notes at such time, and, in addition thereto, such further amount as shall be sufficient to cover any amounts due to the Trustee hereunder. If the Company shall fail to pay such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust, may institute a judicial proceeding for the collection of the sums so due and unpaid, may prosecute such proceeding to judgment or final decree and may enforce the same against the Company or any other obligor upon the Notes and collect the moneys adjudged or decreed to be payable in the manner provided by law out of the property of the Company or any other obligor upon the Notes, wherever situated.

In the event there shall be pending proceedings for the bankruptcy or for the reorganization of the Company or any other obligor on the Notes under Title 11 of the United States Code, or any other applicable law, or in case a receiver, assignee or trustee in bankruptcy or reorganization, liquidator, sequestrator or similar official shall have been appointed for or taken possession of the Company or such other obligor, the property of the Company or such other obligor, or in the event of any other judicial proceedings relative to the Company or such other obligor upon the Notes, or to the creditors or property of the Company or such other obligor, the Trustee, irrespective of whether the principal of the Notes shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand pursuant to the provisions of this Section 6.03, shall be entitled and empowered, by intervention in such proceedings or otherwise, to file and prove a claim or claims for the whole amount of principal and accrued and unpaid interest, if any, in respect of the Notes, and, in case of any judicial proceedings, to file such proofs of claim and other papers or documents and to take such other actions as it may deem necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and of the Holders allowed in such judicial proceedings relative to the Company or any other obligor on the Notes, its or their creditors, or its or their property, and to collect and receive any monies or other property payable or deliverable on any such claims, and to distribute the same after the deduction of any amounts due to the Trustee hereunder; and any receiver, assignee or trustee in bankruptcy or reorganization, liquidator, custodian or similar official is hereby authorized by each of the Holders to make such payments to the Trustee, as administrative expenses, and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due it for reasonable compensation, reasonable expenses, advances and disbursements, including agents and counsel fees, and including any other amounts due to the Trustee hereunder, incurred by it up to the date of such distribution. To the extent that such payment of reasonable compensation, reasonable expenses, advances and disbursements out of the estate in any such proceedings shall be denied for any reason, payment of the same shall be secured by a lien on, and shall be paid out of, any and all distributions, dividends, monies, securities and other property that the Holders of the Notes may be entitled to receive in such proceedings, whether in liquidation or under any plan of reorganization or arrangement or otherwise.

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Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting such Holder or the rights of any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding. All rights of action and of asserting claims under this Indenture, or under any of the Notes, may be enforced by the Trustee without the possession of any of the Notes, or the production thereof at any trial or other proceeding relative thereto, and any such suit or proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Notes.

In any proceedings brought by the Trustee (and in any proceedings involving the interpretation of any provision of this Indenture to which the Trustee shall be a party) the Trustee shall be held to represent all the Holders of the Notes, and it shall not be necessary to make any Holders of the Notes parties to any such proceedings.

In case the Trustee shall have proceeded to enforce any right under this Indenture and such proceedings shall have been discontinued or abandoned because of any waiver pursuant to Section 6.09 or any rescission and annulment pursuant to Section 6.02 or for any other reason or shall have been determined adversely to the Trustee, then and in every such case the Company, the Holders and the Trustee shall, subject to any determination in such proceeding, be restored respectively to their several positions and rights hereunder, and all rights, remedies and powers of the Company, the Holders and the Trustee shall continue as though no such proceeding had been instituted.

Section 6.04 Additional Interest. Notwithstanding anything in this Indenture or in the Notes to the contrary, to the extent the Company elects, the sole remedy for an Event of Default relating to the Company’s failure to comply with its obligations as set forth in Section 4.06 shall (i) for the first 90 calendar days after the occurrence of such an Event of Default, consist exclusively of the right to receive Additional Interest on the Notes at a rate equal to 0.25% per annum of the principal amount of the Notes outstanding for each day during such 90-calendar day period on which such an Event of Default is continuing and (ii) for the period from, and including, the 91st calendar day after the occurrence of such an Event of Default to, and including, the 180th calendar day after the occurrence of such an Event of Default, consist exclusively of the right to receive Additional Interest on the Notes at a rate equal to 0.50% per annum of the principal amount of Notes outstanding for each day during such additional 90- calendar day period on which such an Event of Default is continuing. Subject to the last paragraph of this Section 6.04, Additional Interest payable pursuant to this Section 6.04 shall be in addition to, not in lieu of, any Additional Interest payable pursuant to Section 4.10. If the Company so elects, such Additional Interest shall be payable in the same manner and on the same dates as the stated interest payable on the Notes. On the 181st calendar day after such Event of Default (if the Event of Default relating to the Company’s failure to comply with its obligations as set forth in Section 4.06 is not cured or waived prior to such 181st calendar day), the Notes shall be immediately subject to acceleration as provided in Section 6.02. The provisions of this Section 6.04 will not affect the

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rights of Holders of Notes in the event of the occurrence of any other Event of Default. In the event the Company does not elect to pay Additional Interest following an Event of Default in accordance with this Section 6.04 or the Company elected to make such payment but does not pay the Additional Interest when due, the Notes shall be immediately subject to acceleration as provided in Section 6.02.

In order to elect to pay Additional Interest as the sole remedy during the first 180 calendar days after the occurrence of any Event of Default relating to the Company’s failure to comply with its obligations as set forth in Section 4.06 described in the immediately preceding paragraph, the Company must notify all Holders of the Notes, the Trustee and the Paying Agent (if other than the Trustee) of such election prior to the beginning of such 180-calendar day period. Upon the failure to timely give such notice, the Notes shall be immediately subject to acceleration as provided in Section 6.02. Neither the Trustee nor the Paying Agent shall at any time be under any duty or responsibility to any Holder to determine the Additional Interest, or with respect to the nature, extent, or calculation of the amount of Additional Interest owed, or with respect to the method employed in such calculation of the Additional Interest.

In no event shall Additional Interest payable in the event the Company elects to pay Additional Interest in respect of an Event of Default relating to its failure to comply with its obligations under Section 4.06 as set forth in this Section 6.04 (together with Additional Interest payable under Section 4.10(b)) accrue at a rate in excess of 0.50% per annum, regardless of the number of events or circumstances giving rise to the requirement to pay such Additional Interest.

Section 6.05 Application of Monies Collected by Trustee. Subject to the terms of the Intercreditor Agreement, any monies or property collected by the Trustee pursuant to this Article 6 or by the Collateral Agent pursuant to the Security Documents, or any money or other property distributable in respect of the Company’s or the Guarantors’ obligations under the Indenture Documents after an Event of Default shall be applied in the following order, at the date or dates fixed by the Trustee for the distribution of such monies or property, upon presentation of the several Notes, and stamping thereon the payment, if only partially paid, and upon surrender thereof, if fully paid:

First, to the payment of all amounts due the Trustee (in any capacity), the Collateral Agent and their respective agents hereunder;

Second, in case the principal of the outstanding Notes shall not have become due and be unpaid, to the payment of interest on, and any cash due upon conversion of, the Notes in default in the order of the date due of the payments of such interest and cash due upon conversion, as the case may be, with interest (to the extent that such interest has been collected by the Trustee) upon such overdue payments at the rate borne by the Notes at such time, such payments to be made ratably to the Persons entitled thereto;

Third, in case the principal of the outstanding Notes shall have become due, by declaration or otherwise, and be unpaid to the payment of the whole amount (including, if applicable, the payment of the Fundamental Change Repurchase Price, Specified Repurchase Date Price, Change of Control Repurchase Price, Redemption Price and any cash due upon conversion) then owing and unpaid upon the Notes for principal and interest, if any, with interest on the

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overdue principal and, to the extent that such interest has been collected by the Trustee, upon overdue installments of interest at the rate borne by the Notes at such time, and in case such monies shall be insufficient to pay in full the whole amounts so due and unpaid upon the Notes, then to the payment of such principal (including, if applicable, the Fundamental Change Repurchase Price, Specified Repurchase Date Price, Change of Control Repurchase Price and Redemption Price and any cash due upon conversion) and interest without preference or priority of principal over interest, or of interest over principal or of any installment of interest over any other installment of interest, or of any Note over any other Note, ratably to the aggregate of such principal (including, if applicable, the Fundamental Change Repurchase Price, Specified Repurchase Date Price, Change of Control Repurchase Price and Redemption Price and any cash due upon conversion) and accrued and unpaid interest; and

Fourth, to the payment of the remainder, if any, to the Company or the applicable Guarantor, as the case may be.

Section 6.06 Proceedings by Holders. Except to enforce the right to receive payment of principal (including, if applicable, the Fundamental Change Repurchase Price, Specified Repurchase Date Price, Change of Control Repurchase Price and redemption price) or interest when due, or the right to receive payment or delivery of the consideration due upon conversion, no Holder shall have any right by virtue of or by availing of any provision of this Indenture to institute any suit, action or proceeding in equity or at law upon or under or with respect to this Indenture, or for the appointment of a receiver, trustee, liquidator, custodian or other similar official, or for any other remedy hereunder, unless:

(a) such Holder previously shall have given to the Trustee notice of an Event of Default and of the continuance thereof, as herein provided;

(b) Holders of at least 25% in aggregate principal amount of the Notes then outstanding shall have made written request upon the Trustee to institute such action, suit or proceeding in its own name as Trustee hereunder;

(c) such Holders shall have offered to the Trustee such security or indemnity, in each case, satisfactory to the Trustee against all losses, liabilities and expenses to be incurred therein or thereby;

(d) the Trustee for 60 calendar days after its receipt of such notice, request and offer of such security or indemnity, shall have neglected or refused to institute any such action, suit or proceeding; and

(e) no direction that is inconsistent with such written request shall have been given to the Trustee by the Holders of the Minimum Principal Amount of the Notes then outstanding within such 60-calendar day period pursuant to Section 6.09,

it being understood and intended, and being expressly covenanted by the taker and Holder of every Note with every other taker and Holder and the Trustee that no one or more Holders shall have any right in any manner whatever by virtue of or by availing of any provision of this Indenture to affect, disturb or prejudice the rights of any other Holder, or to obtain or seek to obtain priority over or preference to any other such Holder, or to enforce any right under this

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Indenture, except in the manner herein provided and for the equal, ratable and common benefit of all Holders (except as otherwise provided herein); it being understood that the Trustee does not have an affirmative duty to ascertain whether or not such actions or forbearances are unduly prejudicial to such Holders. For the protection and enforcement of this Section 6.06, each and every Holder and the Trustee shall be entitled to such relief as can be given either at law or in equity.

Notwithstanding any other provision of this Indenture and any provision of any Note, the right of any Holder to receive payment or delivery, as the case may be, of (x) the principal (including the Fundamental Change Repurchase Price, Specified Repurchase Date Price, Change of Control Repurchase Price and Redemption Price, if applicable) of, (y) accrued and unpaid interest, if any, on, and (z) the consideration due upon conversion of, such Note, on or after the respective due dates expressed or provided for in such Note or in this Indenture, or to bring suit for the enforcement of any such payment or delivery, as the case may be, on or after such respective dates against the Company shall not be impaired or affected without the consent of such Holder.

Section 6.07 Proceedings by Trustee. In case of an Event of Default, the Trustee may proceed to protect and enforce the rights vested in it by this Indenture by such appropriate judicial proceedings as are necessary to protect and enforce any of such rights, either by suit in equity or by action at law or by proceeding in bankruptcy or otherwise, whether for the specific enforcement of any covenant or agreement contained in this Indenture or in aid of the exercise of any power granted in this Indenture, or to enforce any other legal or equitable right vested in the Trustee by this Indenture or by law.

Section 6.08 Remedies Cumulative and Continuing. Except as provided in the last paragraph of Section 2.06, all powers and remedies given by this Article 6 to the Trustee or to the Holders shall, to the extent permitted by law, be deemed cumulative and not exclusive of any thereof or of any other powers and remedies available to the Trustee or the Holders of the Notes, by judicial proceedings or otherwise, to enforce the performance or observance of the covenants and agreements contained in this Indenture, and no delay or omission of the Trustee or of any Holder of any of the Notes to exercise any right or power accruing upon any Default or Event of Default shall impair any such right or power, or shall be construed to be a waiver of any such Default or Event of Default or any acquiescence therein; and, subject to the provisions of Section 6.06, every power and remedy given by this Article 6 or by law to the Trustee or to the Holders may be exercised from time to time, and as often as shall be deemed expedient, by the Trustee or by the Holders.

Section 6.09 Direction of Proceedings and Waiver of Defaults by Holders. Subject to the Trustee’s right to receive indemnity or security satisfactory to it from the relevant Holders as described herein, the Holders of the Minimum Principal Amount of the Notes at the time outstanding determined in accordance with Section 8.04 shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or exercising any trust or power conferred on the Trustee with respect to the Notes; provided, however, that (a) such direction shall not be in conflict with any rule of law or with this Indenture, and (b) the Trustee may take any other action deemed proper by the Trustee that is not inconsistent with such direction. The Trustee may refuse to follow any direction that it

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determines is unduly prejudicial to the rights of any other Holder (it being understood that the Trustee does not have an affirmative duty to ascertain whether or not such directions are unduly prejudicial to such Holder) or that would involve the Trustee in personal liability. The Holders of the Minimum Principal Amount of the Notes at the time outstanding determined in accordance with Section 8.04, by notice to the Trustee, may on behalf of the Holders of all of the Notes waive any past Default or Event of Default hereunder and its consequences except (1) a default in the payment of accrued and unpaid interest, if any, on, or the principal (including any Fundamental Change Repurchase Price, any Specified Repurchase Date Price, Change of Control Repurchase Price and Redemption Price) of, the Notes when due that has not been cured pursuant to the provisions of Section 6.01, (2) a failure by the Company to pay or deliver, as the case may be, the consideration due upon conversion of the Notes, (3) a failure by the Company to repurchase any Notes when required under this Indenture, (4) a default in respect of a covenant or provision hereof which under Article 10 cannot be modified or amended without the consent of each Holder of an outstanding Note affected or (5) a failure by the Company to redeem any Notes upon redemption of any Notes. Upon any such waiver the Company, the Trustee and the Holders of the Notes shall be restored to their former positions and rights hereunder; but no such waiver shall extend to any subsequent or other Default or Event of Default or impair any right consequent thereon. Whenever any Default or Event of Default hereunder shall have been waived as permitted by this Section 6.09, said Default or Event of Default shall for all purposes of the Notes and this Indenture be deemed to have been cured and to be not continuing; but no such waiver shall extend to any subsequent or other Default or Event of Default or impair any right consequent thereon.

Section 6.10 Notice of Defaults. The Trustee shall, within 90 calendar days after it receives notice of the occurrence and continuance of a Default of which a Responsible Officer has actual knowledge, mail (or send electronically) to each Holder notice of all Defaults known to a Responsible Officer, unless such Defaults shall have been cured or waived before the giving of such notice; provided that, except in the case of a Default in the payment of the principal of (including the Fundamental Change Repurchase Price, Specified Repurchase Date Price, Change of Control Repurchase Price and Redemption Price, if applicable), or accrued and unpaid interest on, any of the Notes or a Default in the payment or delivery of the consideration due upon conversion, the Trustee shall be protected in withholding such notice if and so long as the Trustee in good faith determines that the withholding of such notice is in the interests of the Holders.

Section 6.11 Undertaking to Pay Costs. All parties to this Indenture agree, and each Holder of any Note by its acceptance thereof shall be deemed to have agreed, that any court may, in its discretion, require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees and expenses, against any party litigant in such suit, having due regard to the merits and good faith ofthe claims or defenses made by such party litigant; provided that the provisions of this Section (to the extent permitted by law) shall not apply to any suit instituted by the Trustee, to any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in principal amount of the Notes at the time outstanding determined in accordance with Section 8.04, or to any suit instituted by any Holder for the enforcement of the payment of the principal of or accrued and unpaid interest, if any, on any Note (including, but not limited to, the Fundamental

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Change Repurchase Price, Specified Repurchase Date Price, Change of Control Repurchase Price and Redemption Price, if applicable) on or after the due date expressed or provided for in such Note or to any suit for the enforcement of the right to convert any Note, or receive the consideration due upon conversion, in accordance with the provisions of Article 14.

ARTICLE 7

CONCERNING THE TRUSTEE

Section 7.01 Duties and Responsibilities of Trustee. The Trustee, prior to the occurrence of an Event of Default and after the curing or waiver of all Events of Default that may have occurred, undertakes to perform such duties and only such duties as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee. In the event an Event of Default has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise, as a prudent person would exercise or use under the circumstances in the conduct of such person’s own affairs; provided that if an Event of Default occurs and is continuing, the Trustee will be under no obligation to exercise any of the rights or powers under this Indenture at the request or direction of any of the Holders unless such Holders have offered to the Trustee indemnity satisfactory to the Trustee against all losses, liabilities and expenses that might be incurred by it in compliance with such request or direction. Prior to taking any action hereunder at the Company’s instruction, the Trustee shall be entitled to indemnification by the Company satisfactory to the Trustee against all losses, liabilities and expenses caused by taking or not taking such action.

No provision of this Indenture shall be construed to relieve the Trustee from liability for its own grossly negligent action, its own grossly negligent failure to act or its own willful misconduct, except that:

(a) prior to the occurrence of an Event of Default and after the curing or waiving of all Events of Default that may have occurred:

(i) the duties and obligations of the Trustee shall be determined solely by the express provisions of this Indenture, and the Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Indenture and no implied covenants or obligations shall be read into this Indenture against the Trustee; and

(ii) in the absence of bad faith and willful misconduct on the part of the Trustee, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; but, in the case of any such certificates or opinions that by any provisions hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture (but need not confirm or investigate the accuracy of any mathematical calculations or other facts stated therein);

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(b) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer of the Trustee, unless it shall be proved that the Trustee was grossly negligent in ascertaining the pertinent facts;

(c) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Holders of not less than the Minimum Principal Amount of the Notes at the time outstanding determined as provided in Section 8.04 relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture;

(d) whether or not therein provided, every provision of this Indenture relating to the conduct or affecting the liability of, or affording protection to, the Trustee shall be subject to the provisions of this Section;

(e) the Trustee shall not be liable in respect of any payment (as to the correctness of amount, entitlement to receive or any other matters relating to payment) or notice effected by the Company or any Paying Agent or any records maintained by any co-Note Registrar with respect to the Notes;

(f) if any party fails to deliver a notice relating to an event the fact of which, pursuant to this Indenture, requires notice to be sent to the Trustee, the Trustee may conclusively rely on its failure to receive such notice as reason to act as if no such event occurred, unless a Responsible Officer of the Trustee had actual knowledge of such event;

(g) in the absence of written investment direction from the Company, all cash received by the Trustee shall be placed in a non-interest bearing trust account, and in no event shall the Trustee be liable for the selection of investments or for investment losses incurred thereon or for losses incurred as a result of the liquidation of any such investment prior to its maturity date or the failure of the party directing such investments prior to its maturity date or the failure of the party directing such investment to provide timely written investment direction, and the Trustee shall have no obligation to invest or reinvest any amounts held hereunder in the absence of such written investment direction from the Company;

(h) in the event that the Trustee is also acting as Custodian, Note Registrar, Paying Agent, Conversion Agent, Collateral Agent or transfer agent hereunder, the rights, privileges, immunities, benefits and protections (including, without limitation, its right to be indemnified) afforded to the Trustee pursuant to this Article 7 shall also be afforded to such Custodian, Note Registrar, Paying Agent, Conversion Agent, Collateral Agent or transfer agent;

(i) the Trustee shall not be required to give any bond or surety in respect of the performance of its powers and duties hereunder;

(j) the Trustee shall not be liable for any action taken, suffered, or omitted to be taken by it in good faith and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture;

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(k) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders pursuant to this Indenture, unless such Holders shall have offered to the Trustee indemnity satisfactory to the Trustee against all losses, liabilities and expenses which might be incurred by it in compliance with such request or direction;

(l) the Trustee makes no representation as to the validity or adequacy of the Notes;

(m) the Trustee is not accountable for the Company’s use or application of the proceeds from the Notes or for any funds received and disbursed in accordance with the Indenture;

(n) the Trustee shall not be liable for the obligations evidenced by the Notes;

(o) the Trustee, in its capacity as Trustee or Collateral Agent, as applicable, is hereby authorized and directed to execute and deliver each Indenture Document or Security Document to which it is a party, binding the Holders to the terms thereof; and

(p) the Trustee is not responsible for any statement in the Notes other than its certificate of authentication.

None of the provisions contained in this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur personal financial liability in the performance of any of its duties or in the exercise of any of its rights or powers.

Section 7.02 Reliance on Documents, Opinions, Etc. Except as otherwise provided in Section 7. 01:

(a) the Trustee and the Collateral Agent may conclusively rely and shall be fully protected in acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, bond, note, coupon, other evidence of indebtedness or other paper or document believed by it in good faith to be genuine and to have been signed or presented by the proper party or parties;

(b) any request, direction, order or demand of the Company mentioned herein shall be sufficiently evidenced by an Officer’s Certificate (unless other evidence in respect thereof be herein specifically prescribed); and any Board Resolution may be evidenced to the Trustee by a copy thereof certified by the Secretary or an Assistant Secretary of the Company;

(c) the Trustee and Collateral Agent may consult with counsel of its selection and require an Opinion of Counsel and any advice of such counsel or Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or omitted by it hereunder in good faith and in accordance with such advice or Opinion of Counsel;

(d) the Trustee and Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, other evidence of indebtedness or other paper or document, but the Trustee and Collateral Agent may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee and Collateral Agent

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shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company and the Guarantors, personally or by agent or attorney at the expense of the Company and the Guarantors and shall incur no liability of any kind by reason of such inquiry or investigation;

(e) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents, custodians, nominees or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent, custodian, nominee or attorney appointed by it with due care hereunder;

(f) the Trustee and Collateral Agent may request that the Company and the Guarantors deliver a certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture; and

(g) the permissive rights of the Trustee and Collateral Agent enumerated herein shall not be construed as duties.

In no event shall the Trustee and Collateral Agent be liable for any consequential, special, indirect or punitive loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Trustee and Collateral Agent has been advised of the likelihood of such loss or damage and regardless of the form of action. The Trustee shall not be charged with knowledge of any Default or Event of Default with respect to the Notes, unless either (1) a Responsible Officer shall have actual knowledge of such Default or Event of Default or (2) written notice of such Default or Event of Default shall have been given to the Trustee by the Company or by any Holder of the Notes at the Corporate Trust Office of the Trustee, and such notice references the Notes and this Indenture.

Section 7.03 No Responsibility for Recitals, Etc. The recitals contained herein and in the Notes (except in the Trustee’s certificate of authentication) shall be taken as the statements of the Company, and the Trustee and Collateral Agent assume no responsibility for the correctness of the same. The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Notes. The Trustee shall not be accountable for the use or application by the Company of any Notes or the proceeds of any Notes authenticated and delivered by the Trustee in conformity with the provisions of this Indenture.

Section 7.04 Trustee, Paying Agents, Conversion Agents, Collateral Agent or Note Registrar May Own Notes. The Trustee, any Paying Agent, any Conversion Agent, Collateral Agent or Note Registrar, in its individual or any other capacity, may become the owner or pledgee of Notes with the same rights it would have if it were not the Trustee, Paying Agent, Conversion Agent, Collateral Agent or Note Registrar.

Section 7.05 Monies to Be Held in Trust. All monies received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received. Money held by the Trustee in trust hereunder need not be segregated from other funds except to the extent required by law. The Trustee shall be under no liability for interest on any money received by it hereunder except as may be agreed in writing from time to time by the Company and the Trustee.

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Section 7.06 Compensation and Expenses of Trustee. The Company covenants and agrees to pay to the Trustee from time to time, and the Trustee shall be entitled to, compensation for all services rendered by it hereunder in any capacity (which shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust) as mutually agreed to in writing between the Trustee and the Company, and the Company will pay or reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with any of the provisions of this Indenture in any capacity thereunder (including the reasonable compensation and the expenses and disbursements of its agents and counsel and of all Persons not regularly in its employ) except any such expense, disbursement or advance as shall have been caused by its gross negligence, willful misconduct or bad faith (in each case, as determined by a final order of a court of competent jurisdiction not subject to further appeal). The Company and the Guarantors also, jointly and severally, covenant to indemnify the Trustee (or any predecessor Trustee) in any capacity under this Indenture and any other document or transaction entered into in connection herewith and its agents and any authenticating agent for, and to hold them harmless against, any loss, claim, damage, liability or expense, including taxes (other than taxes based upon, measured by or determined by the income of the Trustee) incurred without gross negligence, willful misconduct or bad faith on the part of the Trustee, its officers, directors, agents or employees, or such agent or authenticating agent, as the case may be (in each case, as determined by a final order of a court of competent jurisdiction not subject to further appeal), and arising out of or in connection with the acceptance or administration of this Indenture or in any other capacity hereunder, including the costs and expenses of defending themselves against any claim or liability (whether asserted by the Company, or any Holder or any other Person). The obligations of the Company and the Guarantors under this Section 7.06 to compensate or indemnify the Trustee and to pay or reimburse the Trustee for expenses, disbursements and advances shall be secured by a senior claim to which the Notes are hereby made subordinate on all money or property held or collected by the Trustee, except, subject to the effect of Section 6.04, funds held in trust herewith for the benefit of the Holders of particular Notes. The Trustee’s right to receive payment of any amounts due under this Section 7.06 shall not be subordinate to any other liability or indebtedness of the Company or any Guarantor. The obligation of the Company and the Guarantors under this Section 7.06 shall survive the satisfaction and discharge of this Indenture and the earlier resignation or removal or the Trustee. The Company and the Guarantors need not pay for any settlement made without its consent, which consent shall not be unreasonably withheld. The indemnification provided in this Section 7.06 shall extend to the officers, directors, agents and employees of the Trustee.

Without prejudice to any other rights available to the Trustee under applicable law, when the Trustee and its agents and any authenticating agent incur expenses or render services after an Event of Default specified in Section 6.01(h) or Section 6.01(i) occurs, the expenses and the compensation for the services are intended to constitute expenses of administration under any bankruptcy, insolvency or similar laws.

The provisions of this Section 7.06 shall survive the satisfaction and discharge or termination of this Indenture and the resignation or removal of the Trustee. “Trustee” for the purposes of this Section 7.06 shall include any predecessor Trustee and the Trustee in each of its capacities hereunder and each agent, custodian and other person employed to act hereunder; provided, however, that the gross negligence or willful misconduct of any Trustee hereunder shall not affect the rights of any other Trustee hereunder.

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Section 7.07 Officer’s Certificate as Evidence. Whenever in the administration of the provisions of this Indenture the Trustee shall deem it necessary or desirable that a matter be proved or established prior to taking or omitting any action hereunder, such matter (unless other evidence in respect thereof be herein specifically prescribed) may, in the absence of gross negligence, willful misconduct and bad faith (in each case, as determined by a final order of a court of competent jurisdiction not subject to further appeal) on the part of the Trustee, be deemed to be conclusively proved and established by an Officer’s Certificate delivered to the Trustee, and such Officer’s Certificate, in the absence of gross negligence, willful misconduct and bad faith on the part of the Trustee, shall be full warrant to the Trustee for any action taken or omitted by it under the provisions of this Indenture upon the faith thereof.

Section 7.08 Eligibility of Trustee. There shall at all times be a Trustee hereunder which shall be a Person that is eligible pursuant to the Trust Indenture Act (as if the Trust Indenture Act were applicable hereto) to act as such and has a combined capital and surplus of at least $50,000,000. If such Person publishes reports of condition at least annually, pursuant to law or to the requirements of any supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such Person shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect hereinafter specified in this Article.

Section 7.09 Resignation or Removal of Trustee.

(a) The Trustee may at any time resign by giving written notice of such resignation to the Company and by delivering notice thereof to the Holders. Upon receiving such notice of resignation, the Company shall promptly appoint a successor trustee by written instrument, in duplicate, executed by order of the Board of Directors, one copy of which instrument shall be delivered to the resigning Trustee and one copy to the successor trustee. If no successor trustee shall have been so appointed and have accepted appointment within 60 calendar days after the delivery of such notice of resignation to the Holders, the resigning Trustee may, at the Company’s expense petition any court of competent jurisdiction for the appointment of a successor trustee, or any Holder who has been a bona fide holder of a Note or Notes for at least six months (or since the Issue Date) may, subject to the provisions of Section 6.11, on behalf of himself or herself and all others similarly situated, petition any such court for the appointment of a successor trustee. Such court may thereupon, after such notice, if any, as it may deem proper and prescribe, appoint a successor trustee.

(b) In case at any time any of the following shall occur:

(i) the Trustee shall cease to be eligible in accordance with the provisions of Section 7.08 and shall fail to resign after written request therefor by the Company or by any such Holder, or

(ii) the Trustee shall become incapable of acting, or shall be adjudged a bankrupt or insolvent, or a receiver of the Trustee or of its property shall be appointed, or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation,

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then, in either case, the Company may by a Board Resolution remove the Trustee and appoint a successor trustee by written instrument, in duplicate, executed by order of the Board of Directors, one copy of which instrument shall be delivered to the Trustee so removed and one copy to the successor trustee, or, subject to the provisions of Section 6.11, any Holder who has been a bona fide holder of a Note or Notes for at least six months (or since the Issue Date) may, on behalf of himself or herself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor trustee. Such court may thereupon, after such notice, if any, as it may deem proper and prescribe, remove the Trustee and appoint a successor trustee. If no successor trustee shall have been so appointed and have accepted appointment within 60 calendar days after the delivery of such notice of resignation to the Holders, the resigning Trustee may, at the Company’s expense, petition any court of competent jurisdiction for the appointment of a successor trustee.

(c) The Holders of the Minimum Principal Amount of the Notes at the time outstanding, as determined in accordance with Section 8.04, may at any time remove the Trustee by so notifying the Trustee and the Company in writing not less than 30 days prior to the effective date of such removal and nominate a successor trustee that shall be deemed appointed as successor trustee unless within ten calendar days after notice to the Company of such nomination the Company objects thereto, in which case the Trustee so removed or any Holder, upon the terms and conditions and otherwise as in Section 7.09(a) provided at the expense of the Company, may petition any court of competent jurisdiction for an appointment of a successor trustee.

(d) Any resignation or removal of the Trustee and appointment of a successor trustee pursuant to any of the provisions of this Section 7.09 shall become effective upon acceptance of appointment by the successor trustee as provided in Section 7.10. The Trustee shall have no liability or responsibility for the action or inaction of any successor trustee.

Section 7.10 Acceptance by Successor Trustee. Any successor trustee appointed as provided in Section 7.09 shall execute, acknowledge and deliver to the Company and to its predecessor trustee an instrument accepting such appointment hereunder, and thereupon the resignation or removal of the predecessor trustee shall become effective and such successor trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, duties and obligations of its predecessor hereunder, with like effect as if originally named as Trustee herein; but, nevertheless, on the written request of the Company or of the successor trustee, the trustee ceasing to act shall, upon payment of any amounts then due it pursuant to the provisions of Section 7.06, execute and deliver an instrument transferring to such successor trustee all the rights and powers of the trustee so ceasing to act. Upon request of any such successor trustee, the Company shall execute any and all instruments in writing for more fully and certainly vesting in and confirming to such successor trustee all such rights and powers. Any trustee ceasing to act shall, nevertheless, retain a senior claim to which the Notes are hereby made subordinate on all money or property held or collected by such trustee as such, except for funds held in trust for the benefit of Holders of particular Notes, to secure any amounts then due it pursuant to the provisions of Section 7.06.

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No successor trustee shall accept appointment as provided in this Section 7.10 unless at the time of such acceptance such successor trustee shall be eligible under the provisions of Section 7.08.

Upon acceptance of appointment by a successor trustee as provided in this Section 7.10, each of the Company and the successor trustee, at the written direction and at the expense of the Company shall deliver or cause to be delivered notice of the succession of such trustee hereunder to the Holders. If the Company fails to deliver such notice (or cause such notice to be delivered) within ten calendar days after acceptance of appointment by the successor trustee, the successor trustee shall cause such notice to be delivered at the expense of the Company.

Section 7.11 Succession by Merger, Etc. Any corporation or other entity into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation or other entity resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation or other entity succeeding to all or substantially all of the corporate trust business of the Trustee (including the administration of this Indenture), shall be the successor to the Trustee hereunder without the execution or filing of any paper or any further act on the part of any of the parties hereto; provided that in the case of any corporation or other entity succeeding to all or substantially all of the corporate trust business of the Trustee such corporation or other entity shall be eligible under the provisions of Section 7.08.

In case at the time such successor to the Trustee shall succeed to the trusts created by this Indenture, any of the Notes shall have been authenticated but not delivered, any such successor to the Trustee may adopt the certificate of authentication of any predecessor trustee or authenticating agent appointed by such predecessor trustee, and deliver such Notes so authenticated; and in case at that time any of the Notes shall not have been authenticated, any successor to the Trustee or an authenticating agent appointed by such successor trustee may authenticate such Notes either in the name of any predecessor trustee hereunder or in the name of the successor trustee; and in all such cases such certificates shall have the full force which it is anywhere in the Notes or in this Indenture provided that the certificate of the Trustee shall have; provided, however, that the right to adopt the certificate of authentication of any predecessor trustee or to authenticate Notes in the name of any predecessor trustee shall apply only to its successor or successors by merger, conversion or consolidation.

Section 7.12 Trustee’s Application for Instructions from the Company. Any application by the Trustee for written instructions from the Company or any Guarantor (other than with regard to any action proposed to be taken or omitted to be taken by the Trustee that affects the rights of the Holders of the Notes under this Indenture) may, at the option of the Trustee, set forth in writing any action proposed to be taken or omitted by the Trustee under this Indenture and the date on and/or after which such action shall be taken or such omission shall be effective. The Trustee shall not be liable to the Company for any action taken by, or omission of, the Trustee in accordance with a proposal included in such application on or after the date specified in such application (which date shall not be less than three Business Days after the date any officer that the Company or any Guarantor has indicated to the Trustee should receive such application

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actually receives such application, unless any such officer shall have consented in writing to any earlier date), unless, prior to taking any such action (or the effective date in the case of any omission), the Trustee shall have received written instructions in accordance with this Indenture in response to such application specifying the action to be taken or omitted.

ARTICLE 8

CONCERNING THE HOLDERS

Section 8.01 Action by Holders. Whenever in this Indenture it is provided that the Holders of a specified percentage of the aggregate principal amount of the Notes may take any action (including the making of any demand or request, the giving of any notice, consent or waiver or the taking of any other action), the fact that at the time of taking any such action, the Holders of such specified percentage have joined therein may be evidenced (a) by any instrument or any number of instruments of similar tenor executed by Holders in person or by agent or proxy appointed in writing, or (b) by the record of the Holders voting in favor thereof at any meeting of Holders duly called and held in accordance with the provisions of Article 9, or (c) by a combination of such instrument or instruments and any such record of such a meeting of Holders. Whenever the Company or the Trustee solicits the taking of any action by the Holders of the Notes, the Company or the Trustee may, but shall not be required to, fix in advance of such solicitation, a date as the record date for determining Holders entitled to take such action. The record date if one is selected shall be not more than fifteen calendar days prior to the date of commencement of solicitation of such action.

Section 8.02 Proof of Execution by Holders. Subject to the provisions of Section 7.01, Section 7.02 and Section 9.05, proof of the execution of any instrument by a Holder or its agent or proxy shall be sufficient if made in accordance with such reasonable rules and regulations as may be prescribed by the Trustee or in such manner as shall be satisfactory to the Trustee. The holding of Notes shall be proved by the Note Register or by a certificate of the Note Registrar. The record of any Holders’ meeting shall be proved in the manner provided in Section 9.06.

Section 8.03 Who Are Deemed Absolute Owners. The Company, the Trustee, any authenticating agent, any Paying Agent, any Conversion Agent and any Note Registrar may deem the Person in whose name a Note shall be registered upon the Note Register to be, and may treat it as, the absolute owner of such Note (whether or not such Note shall be overdue and notwithstanding any notation of ownership or other writing thereon made by any Person other than the Company or any Note Registrar) for the purpose of receiving payment of or on account of the principal of and (subject to Section 2.03) accrued and unpaid interest on such Note, for conversion of such Note and for all other purposes; and neither the Company nor the Trustee nor any Paying Agent nor any Conversion Agent nor any Note Registrar shall be affected by any notice to the contrary. All such payments or deliveries so made to any Holder for the time being, or upon its order, shall be valid, and, to the extent of the sums so paid or delivered, effectual to satisfy and discharge the liability for monies payable or shares deliverable upon any such Note. Notwithstanding anything to the contrary in this Indenture or the Notes following an Event of Default, any Holder of a beneficial interest in a Global Note may directly enforce against the Company, without the consent, solicitation, proxy, authorization or any other action of the Depositary or any other Person, such Holder’s right to exchange such beneficial interest for a Note in certificated form in accordance with the provisions of this Indenture.

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Section 8.04 Company-Owned Notes Disregarded. In determining whether the Holders of the requisite aggregate principal amount of Notes have concurred in any direction, consent, waiver or other action under this Indenture, Notes that are owned by the Company, any Guarantor, by any Subsidiary thereof or by any Person directly or indirectly controlling or controlled by or under direct or indirect common control with the Company or any Guarantor or any Subsidiary thereof shall be disregarded and deemed not to be outstanding for the purpose of any such determination; provided that for the purposes of determining whether the Trustee shall be protected in relying on any such direction, consent, waiver or other action only Notes that a Responsible Officer actually knows are so owned shall be so disregarded. Notes so owned that have been pledged in good faith may be regarded as outstanding for the purposes of this Section if the pledgee shall establish the pledgee’s right to so act with respect to such Notes and that the pledgee is not the Company, any Guarantor, a Subsidiary thereof or a Person directly or indirectly controlling or controlled by or under direct or indirect common control with the Company or a Subsidiary thereof. In the case of a dispute as to such right, any decision by the Trustee taken upon the advice of counsel shall be full protection to the Trustee. Upon request of the Trustee, the Company shall furnish to the Trustee promptly an Officer’s Certificate listing and identifying all Notes, if any, known by the Company to be owned or held by or for the account of any of the above described Persons; and, subject to Section 7.01, the Trustee shall be entitled to accept such Officer’s Certificate as conclusive evidence of the facts therein set forth and of the fact that all Notes not listed therein are outstanding for the purpose of any such determination.

Section 8.05 Revocation of Consents; Future Holders Bound. At any time prior to (but not after) the evidencing to the Trustee, as provided in Section 8.01, of the taking of any action by the Holders of the percentage of the aggregate principal amount of the Notes specified in this Indenture in connection with such action, any Holder of a Note that is shown by the evidence to be included in the Notes the Holders of which have consented to such action may, by filing written notice with the Trustee at its Corporate Trust Office and upon proof of holding as provided in Section 8.02, revoke such action so far as concerns such Note. Except as aforesaid, any such action taken by the Holder of any Note shall be conclusive and binding upon such Holder and upon all future Holders and owners of such Note and of any Notes issued in exchange or substitution therefor or upon registration of transfer thereof, irrespective of whether any notation in regard thereto is made upon such Note or any Note issued in exchange or substitution therefor or upon registration of transfer thereof.

ARTICLE 9

HOLDERS’ MEETINGS

Section 9.01 Purpose of Meetings. A meeting of Holders may be called at any time and from time to time pursuant to the provisions of this Article 9 for any of the following purposes:

(a) to give any notice to the Company or to the Trustee or to give any directions to the Trustee permitted under this Indenture, or to consent to the waiving of any Default or Event of Default hereunder (in each case, as permitted under this Indenture) and its consequences, or to take any other action authorized to be taken by Holders pursuant to any of the provisions of Article 6;

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(b) to remove the Trustee and nominate a successor trustee pursuant to the provisions of Article 7;

(c) to consent to the execution of an indenture or indentures supplemental hereto pursuant to the provisions of Section 10.02; or

(d) to take any other action authorized to be taken by or on behalf of the Holders of any specified aggregate principal amount of the Notes under any other provision of this Indenture or under applicable law.

Section 9.02 Call of Meetings by Trustee. The Trustee may at any time call a meeting of Holders to take any action specified in Section 9.01, to be held at such time and at such place as the Trustee shall determine in consultation with the Company or the Holders, as the case may be. Notice of every meeting of the Holders, setting forth the time and the place of such meeting and in general terms the action proposed to be taken at such meeting and the establishment of any record date pursuant to Section 8.01, shall be delivered to Holders of such Notes. Such notice shall also be mailed to the Company. Such notices shall be delivered or mailed, as the case may be, not less than 20 nor more than 90 calendar days prior to the date fixed for the meeting.

Any meeting of Holders shall be valid without notice if the Holders of all Notes then outstanding are present in person or by proxy or if notice is waived before or after the meeting by the Holders of all Notes then outstanding, and if the Company and the Trustee are either present by duly authorized representatives or have, before or after the meeting, waived notice.

Section 9.03 Call of Meetings by Company or Holders. In case at any time the Company, pursuant to a Board Resolution, or the Holders of at least 10% of the aggregate principal amount of the Notes then outstanding, shall have requested the Trustee to call a meeting of Holders, by written request setting forth in reasonable detail the action proposed to be taken at the meeting, and the Trustee shall not have mailed or delivered, as the case may be, the notice of such meeting within 20 calendar days after receipt of such request, then the Company or such Holders may determine the time and the place for such meeting and may call such meeting to take any action authorized in Section 9.01, by mailing or delivering, as the case may be, notice thereof as provided in Section 9.02.

Section 9.04 Qualifications for Voting. To be entitled to vote at any meeting of Holders a Person shall (a) be a Holder of one or more Notes on the record date pertaining to such meeting or (b) be a Person appointed by an instrument in writing as proxy by a Holder of one or more Notes on the record date pertaining to such meeting. The only Persons who shall be entitled to be present or to speak at any meeting of Holders shall be the Persons entitled to vote at such meeting and their counsel and any representatives of the Trustee and its counsel and any representatives of the Company and its counsel.

Section 9.05 Regulations. Notwithstanding any other provisions of this Indenture, the Trustee may make such reasonable regulations as it may deem advisable for any meeting of Holders, in regard to proof of the holding of Notes and of the appointment of proxies, and in regard to the appointment and duties of inspectors of votes, the submission and examination of proxies, certificates and other evidence of the right to vote, and such other matters concerning the conduct of the meeting as it shall think fit.

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The Trustee may, by an instrument in writing, appoint a temporary chairman of the meeting, unless the meeting shall have been called by the Company or by Holders as provided in Section 9.03, in which case the Company or the Holders calling the meeting, as the case may be, shall in like manner appoint a temporary chairman. A permanent chairman and a permanent secretary of the meeting shall be elected by vote of the Holders of the Minimum Principal Amount of the Notes represented at the meeting and entitled to vote at the meeting.

Subject to the provisions of Section 8.04, at any meeting of Holders each Holder or proxyholder shall be entitled to one vote for each $1,000 principal amount of Notes held or represented by him or her; provided, however, that no vote shall be cast or counted at any meeting in respect of any Note challenged as not outstanding and ruled by the chairman of the meeting to be not outstanding. The chairman of the meeting shall have no right to vote other than by virtue of Notes held by it or instruments in writing as aforesaid duly designating it as the proxy to vote on behalf of other Holders. Any meeting of Holders duly called pursuant to the provisions of Section 9.02 or Section 9.03 may be adjourned from time to time by the Holders of the Minimum Principal Amount of Notes represented at the meeting, whether or not constituting a quorum, and the meeting may be held as so adjourned without further notice.

Section 9.06 Voting. The vote upon any resolution submitted to any meeting of Holders shall be by written ballot on which shall be subscribed the signatures of the Holders or of their representatives by proxy and the outstanding aggregate principal amount of the Notes held or represented by them. The permanent chairman of the meeting shall appoint two inspectors of votes who shall count all votes cast at the meeting for or against any resolution and who shall make and file with the secretary of the meeting their verified written reports in duplicate of all votes cast at the meeting. A record in duplicate of the proceedings of each meeting of Holders shall be prepared by the secretary of the meeting and there shall be attached to said record the original reports of the inspectors of votes on any vote by ballot taken thereat and affidavits by one or more Persons having knowledge of the facts setting forth a copy of the notice of the meeting and showing that said notice was mailed or delivered, as the case may be, as provided in Section 9.02. The record shall show the aggregate principal amount of the Notes voting in favor of or against any resolution. The record shall be signed and verified by the affidavits of the permanent chairman and secretary of the meeting and one of the duplicates shall be delivered to the Company and the other to the Trustee to be preserved by the Trustee, the latter to have attached thereto the ballots voted at the meeting.

Any record so signed and verified shall be conclusive evidence of the matters therein stated.

Section 9.07 No Delay of Rights by Meeting. Nothing contained in this Article 9 shall be deemed or construed to authorize or permit, by reason of any call of a meeting of Holders or any rights expressly or impliedly conferred hereunder to make such call, any hindrance or delay in the exercise of any right or rights conferred upon or reserved to the Trustee or to the Holders under any of the provisions of this Indenture or of the Notes.

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Nothing contained in this Article 9 shall be deemed or construed to limit any Holder actions pursuant to the applicable procedures of the Depositary so long as the Notes are Global Notes.

ARTICLE 10

SUPPLEMENTAL INDENTURES

Section 10.01 Supplemental Indentures Without Consent of Holders. The Company and the Trustee and/or the Collateral Agent, as the case may be, at the Company’s expense, may from time to time and at any time amend, supplement or waive any provision of the Indenture Documents without the consent of any Holder for one or more of the following purposes:

(a) to cure any ambiguity, omission, defect or inconsistency in a manner that does not adversely affect holders of the Notes;

(b) to provide for the assumption by a Successor Company of the obligations of the Company under this Indenture and the Notes pursuant to Article 11 or to provide for the assumption by a successor entity of the obligations of a Guarantor under this Indenture and its Note Guarantee pursuant to Article 16;

(c) to add guarantees with respect to the Notes;

(d) to release any Guarantor from its obligations under its Note Guarantee or this Indenture in accordance with the terms of the Indenture Documents;

(e) to add additional assets as Collateral or to enter into additional or supplemental Security Documents;

(f) to release Collateral in accordance with the terms of this Indenture and the Security Documents;

(g) to make, complete or confirm any grant of Collateral permitted or required by this Indenture or any of the Security Documents or any release of Liens in favor of the Collateral Agent in the Collateral in accordance with the terms of this Indenture or the Security Documents;

(h) to allow any Guarantor to execute a supplemental indenture and/or a Note Guarantee with respect to the Notes;

(i) to add to the covenants or Events of Default of the Company for the benefit of the Holders or surrender any right or power conferred upon the Company under the Indenture;

(j) to make any change that does not adversely affect the rights of any Holder;

(k) to adjust the Conversion Rate as provided in Article 14;

(l) to provide for the issuance of Additional Notes and PIK Payments in accordance with the limitations set forth in this Indenture;

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(m) to provide for the acceptance or appointment by a successor trustee or facilitate the administration of the trusts under this Indenture by more than one trustee;

(n) in connection with any Specified Corporate Event, to provide that the Notes are convertible into Reference Property, and make such related changes to the terms of the Notes to the extent expressly required by Section 14.08;

(o) amend the provisions of this Indenture solely to facilitate (a) the deposit of one or more registered notes in global form with DTC, (b) the qualification of one or more Global Notes for settlement through the facilities of DTC and / or (c) the exchange of Physical Notes for beneficial interests representing an equivalent principal amount in a Global Note, registered in the name of DTC, or its nominee, in each case, in a manner that does not adversely affect Holders of the Notes; or

(p) to supplement the Indenture in accordance with Section 4.15.

Upon the written request of the Company, the Trustee and/or the Collateral Agent, as the case may be, is hereby authorized to, and shall join with the Company in the execution of any such document reflecting the amendment, supplement or waiver to the applicable Indenture Document, to make any further appropriate agreements and stipulations that may be therein contained, except that the Trustee and/or the Collateral Agent shall not be obligated to, but may enter into any such amendment, supplement or waiver that affects the Trustee’s and/or Collateral Agent’s own rights, duties or immunities under this Indenture or otherwise.

Any such document reflecting the amendment, supplement or waiver to the applicable Indenture Document authorized by the provisions of this Section 10.01 may be executed by the Company and the Trustee without the consent of the Holders of any of the Notes at the time outstanding, notwithstanding any of the provisions of Section 10.02.

Section 10.02 Supplemental Indentures with Consent of Holders. With the consent (evidenced as provided in Article 8) of the Holders of at least the Minimum Principal Amount of the Notes then outstanding (determined in accordance with Article 8 and including, without limitation, consents obtained in connection with a repurchase of, or tender or exchange offer for, Notes), the Company and the Trustee and/or Collateral Agent, as the case may be, at the Company’s expense, may from time to time and at any time enter into amendments, supplements or waivers to the Indenture Documents for the purpose of adding any provisions to or changing in any manner, waiving or eliminating any of the provisions of the Indenture Documents or of modifying in any manner the rights of the Holders; provided, however, that, without the consent of each Holder of an outstanding Note affected, no such amendment, supplement or waiver shall:

(a) reduce the consideration due upon conversion of the Notes;

(b) reduce the rate of or extend the stated time for payment of interest on any Note;

(c) reduce the principal of or change the Maturity Date of any Note;

(d) except as set forth in Section 14.08, make any change that adversely affects the conversion rights of any Notes;

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(e) reduce the Redemption Price, Fundamental Change Repurchase Price, Specified Repurchase Date Price or Change of Control Repurchase Price of any Note or amend or modify in any manner adverse to the Holders the Company’s obligation to make such payments, whether through an amendment or waiver of provisions in the covenants, definitions or otherwise;

(f) make any Note payable in currency other than that stated in the Note and in this Indenture;

(g) change the ranking of the Notes in a manner adverse to Holders;

(h) impair the right of any Holder to receive payment of principal and interest on such Holder’s Notes on or after the due dates therefor or to institute suit for the enforcement of any payment on or with respect to such Holder’s Notes;

(i) to release any Guarantor from any of its obligations under its Note Guarantee or this Indenture, except in accordance with the terms of this Indenture; or

(j) make any change in this Article 10 that requires each Holder’s consent or in the waiver provisions in Section 6.02 or Section 6.09.

Upon the written request of the Company, and upon the filing with the Trustee and/or Collateral Agent, as the case may be, of evidence of the consent of Holders as aforesaid and subject to Section 10.05, the Trustee and/or the Collateral Agent shall join with the Company in the execution of such amendment, supplement or waiver to the Indenture Documents unless such amendment, supplement or waiver affects the Trustee’s and/or the Collateral Agent’s own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee and/or the Collateral Agent may, but shall not be obligated to, enter into such amendment, supplement or waiver.

Holders do not need under this Section 10.02 to approve the particular form of any proposed amendment, supplement or waiver. It shall be sufficient if such Holders approve the substance thereof. After any such amendment, supplement or waiver becomes effective, the Company shall mail (or send electronically) to the Holders (with a copy to the Trustee) a notice briefly describing such amendment, supplement or waiver. However, the failure to give such notice to all the Holders, or any defect in the notice, will not impair or affect the validity of the amendment, supplement or waiver.

Section 10.03 Effect of Amendments, Supplements Or Waivers. Upon the execution of any amendment, supplement or waiver pursuant to the provisions of this Article 10, the applicable Indenture Document shall be and be deemed to be modified and amended in accordance therewith and the respective rights, limitation of rights, obligations, duties and immunities under the Indenture Documents of the Trustee, the Collateral Agent, the Company, the Guarantors and the Holders shall thereafter be determined, exercised and enforced hereunder subject in all respects to such modifications and amendments and all the terms and conditions of any such amendment, supplement or waiver shall be and be deemed to be part of the terms and conditions of the applicable Indenture Document for any and all purposes.

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Section 10.04 Notation on Notes. Notes authenticated and delivered after the execution of any amendment, supplement or waiver pursuant to the provisions of this Article 10 may, at the Company’s expense, bear a notation as to any matter provided for in such amendment, supplement or waiver. If the Company shall so determine, new Notes so modified as to conform, in the opinion of the Board of Directors, to any modification of an Indenture Document contained in any such amendment, supplement or waiver may, at the Company’s expense, be prepared and executed by the Company, authenticated by the Trustee (or an authenticating agent duly appointed by the Trustee pursuant to Section 18.10) and delivered in exchange for the Notes then outstanding, upon surrender of such Notes then outstanding.

Section 10.05 Evidence of Compliance of Amendment, Supplement Or Waiver to Be Furnished Trustee. In addition to the documents required by Section 18.05, the Trustee shall receive an Officer’s Certificate and an Opinion of Counsel as conclusive evidence that any amendment, supplement or waiver executed pursuant hereto complies with the requirements of this Article 10, is permitted or authorized by this Indenture and is the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms.

ARTICLE 11

CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE

Section 11.01 Company May Consolidate, Etc. on Certain Terms. Subject to the provisions of Section 11.02, the Company shall not consolidate with or merge with or into, or sell, convey, assign, transfer, lease or otherwise dispose of all or substantially all of the consolidated properties or assets of the Company and its Subsidiaries, taken as a whole, in one transaction or any series of transactions, to another Person, unless:

(a) the resulting, surviving or transferee Person (if other than the Company) (the “Successor Company”) shall be a corporation organized and existing under the laws of the United States of America, any State thereof or the District of Columbia;

(b) the Successor Company unconditionally assumes all of the Company’s obligations under the Notes and this Indenture (including, for the avoidance of doubt, the obligation to pay Additional Interest pursuant to Section 4.10) and applicable Security Documents pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee and/or the Collateral Agent;

(c) immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing under this Indenture; and

(d) in any transaction where the Company is not the surviving or transferee Person, the Company, the Successor Company or the transferee Person, as applicable, shall have delivered to the Trustee an Officer’s Certificate and Opinion of Counsel, each stating that the consolidation, merger, sale, conveyance, assignment, transfer, lease or other disposition and such supplemental indenture complies with this Indenture and all conditions precedent provided for in this Indenture relating to such transaction have been complied with.

For purposes of this Section 11.01, the sale, conveyance, transfer or lease of all or substantially all of the properties and assets of one or more Subsidiaries of the Company to

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another Person that is not the Company or a Subsidiary of the Company, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the consolidated properties and assets of the Company and its Subsidiaries, taken as a whole, shall be deemed to be the sale, conveyance, transfer or lease by the Company of all or substantially all of its consolidated properties and assets to another Person.

Section 11.02 Successor Corporation to Be Substituted. In case of any such consolidation, merger, sale, conveyance, assignment, transfer, lease or other disposition and upon the assumption by the Successor Company, by supplemental indenture, executed and delivered to the Trustee, of the due and punctual payment of the principal of and accrued and unpaid interest on all of the Notes, the due and punctual delivery or payment, as the case may be, of any consideration due upon conversion of the Notes and the due and punctual performance of all of the covenants and conditions of this Indenture to be performed by the Company, such Successor Company (if not the Company) shall succeed to and, except in the case of a lease of all or substantially all of the consolidated properties or assets of the Company and its Subsidiaries, taken as a whole, shall be substituted for the Company, with the same effect as if it had been named herein as the party of the first part. Such Successor Company thereupon may cause to be signed, and may issue either in its own name or in the name of the Company any or all of the Notes issuable hereunder which theretofore shall not have been signed by the Company and delivered to the Trustee; and, upon the order of such Successor Company instead of the Company and subject to all the terms, conditions and limitations in this Indenture prescribed, the Trustee shall authenticate and shall deliver, or cause to be authenticated and delivered, any Notes that previously shall have been signed and delivered by the Officers of the Company to the Trustee for authentication, and any Notes that such Successor Company thereafter shall cause to be signed and delivered to the Trustee for that purpose. All the Notes so issued shall in all respects have the same legal rank and benefit under this Indenture as the Notes theretofore or thereafter issued in accordance with the terms of this Indenture as though all of such Notes had been issued at the Issue Date. In the event of any such consolidation, merger, sale, conveyance, assignment, transfer or other disposition (but not in the case of a lease), upon compliance with this Article 11 the Person named as the “Company” in the first paragraph of this Indenture (or any successor that shall thereafter have become such in the manner prescribed in this Article 11) may be dissolved, wound up and liquidated at any time thereafter and, except in the case of a lease, such Person shall be released from its liabilities as obligor and maker of the Notes and from its obligations under this Indenture and the Notes.

In case of any such consolidation, merger, sale, conveyance, assignment, transfer, lease or other disposition, such changes in phraseology and form (but not in substance) may be made in the Notes thereafter to be issued as may be appropriate.

ARTICLE 12

IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS

Section 12.01 Indenture and Notes Solely Corporate Obligations. No recourse for the payment of the principal of or accrued and unpaid interest on any Note, nor for any claim based thereon or otherwise in respect thereof, and no recourse under or upon any obligation, covenant or agreement of the Company or any Guarantor in this Indenture or in any supplemental indenture or in any Note or in any Note Guarantee, nor because of the creation of any indebtedness represented

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thereby, shall be had against any incorporator, stockholder, employee, agent, Officer or director or Subsidiary, as such, past, present or future, of the Company, any Guarantor or of any successor entity of the Company or any Guarantor, either directly or through the Company, any Guarantor or any successor entity of the Company or any Guarantor, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise; it being expressly understood that all such liability is hereby expressly waived and released as a condition of, and as a consideration for, the execution of this Indenture and the issue of the Notes and the Note Guarantees.

ARTICLE 13

OPTIONAL REDEMPTION

Section 13.01 Provisional Redemption. Except as provided in this Section 13.01 and Section 13.02, the Notes are not subject to redemption at the Company’s option. On or after the date that is two calendar years after the consummation of the Qualified IPO, the Company may redeem, at its option, all or part of the Notes if the Last Reported Sale Price of the Common Stock has been at least 150% of the Qualified IPO Price then in effect for at least 20 Trading Days (whether or not consecutive) during a period of 30 consecutive Trading Days ending within three Trading Days immediately preceding the date on which the Company provides written notice of redemption (a “Provisional Redemption”) to the Holders of Notes on the redemption date specified in the Notice of Redemption in accordance with Section 13.03 (the “Provisional Redemption Date”). The Company shall redeem the Notes pursuant to a Provisional Redemption, if any, at a redemption price payable in cash equal to 100% of the principal amount of the Notes to be redeemed, plus accrued and unpaid interest to, but excluding, the Provisional Redemption Date (the “Provisional Redemption Price”). Neither the Trustee nor the Paying Agent shall have any responsibility to determine whether or not the condition to calling Notes for Provisional Redemption has been satisfied.

Section 13.02 Change of Control Redemption. On or before the second Business Day after the effectiveness of a Change of Control Redemption Right Event, the Company shall provide the Change of Control Redemption Notice. In the case of Physical Notes, such notice shall be by first class mail or, in the case of Global Notes, such notice shall be delivered in accordance with the applicable procedures of the Depositary. If the Company elects to effect a Change of Control Redemption in such Change of Control Redemption Notice, subject to Holders’ rights pursuant to Section 14.01 and Section 15.03, the Company may redeem on a date that is no earlier than the later to occur of (i) the 36th Business Day following the Change of Control Effective Date and (ii) the Fundamental Change Repurchase Date, at its option, all or part of the Notes as to which the Holders have not made an election to (a) convert such Notes pursuant to Section 14.01 and 14.03 or (b) tender such Notes for repurchase pursuant to Sections 15.01 or 15.03 and Section 15.07 (a “Change of Control Redemption”) on a redemption date specified in the Notice of Redemption in accordance with Section 13.03 (the “Change of Control Redemption Date”). The Company shall redeem the Notes pursuant to a Change of Control Redemption at the Change of Control Redemption Price. Neither the Trustee nor the Paying Agent shall have any responsibility to determine whether or not the conditions to calling Notes for a Change of Control Redemption has been satisfied. For the avoidance of doubt, no Change of Control Redemption shall be effected with respect to any Holder’s Notes if such Holder has elected to convert such Notes in accordance with Section 14.01 or to tender such Notes for repurchase in accordance with Section 15.01 or 15.03.

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Section 13.03 Redemption Procedures.

(a) The Company shall provide not less than 30 nor more than 60 calendar days’ written notice before a Redemption Date relating to a Provisional Redemption under Section 13.01 or a Change of Control Redemption under Section 13.02 to the Trustee, the Conversion Agent (if other than the Trustee), the Paying Agent (if other than the Trustee) and each Holder (each, a “Notice of Redemption” and the date of any such Notice of Redemption, the “Redemption Notice Date”) (in each case, with written notice to the Trustee no less than five calendar days (or such shorter period as agreed by the Trustee) prior to the sending of such redemption notice in the event the Trustee is engaged by the Company to send such notice or cause such notice to be sent, in each case, in the Company’s name and at the Company’s expense). The Redemption Date for a Provisional Redemption under Section 13.01 or a Change of Control Redemption under Section 13.02 must be a Business Day. Notwithstanding the foregoing, if the Company sets a Redemption Date between a Regular Record Date and the corresponding Interest Payment date, the Company will not pay accrued interest to any Holder of Notes to be redeemed, and will instead pay the full amount of the relevant interest payment in Cash Interest on such Interest Payment Date to the Holder of record on such a Regular Record Date.

(b) The Notice of Redemption shall identify the Notes to be redeemed and shall state:

(i) the Redemption Date;

(ii) the Provisional Redemption Price or Change of Control Redemption Price, as the case may be;

(iii) the current Conversion Rate;

(iv) the name and address of the Paying Agent and Conversion Agent;

(v) that Holders who want to convert Notes must satisfy the requirements set forth in the Notes and Article 14 of this Indenture;

(vi) that Notes called for redemption must be surrendered to the Paying Agent in order to collect the Redemption Price therefor, together with accrued but unpaid interest thereon;

(vii) if fewer than all the outstanding Notes are to be redeemed, the certificate numbers, if any, and principal amounts of the particular Notes to be redeemed;

(viii) that, unless the Company defaults in paying the Redemption Price, interest on Notes called for redemption will cease to accrue on and after the Redemption Date and the Notes called for redemption will cease to be outstanding; and

(ix) the CUSIP number of the Notes called for redemption.

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(c) If, in the case of a Provisional Redemption or Change of Control Redemption, the Company decides to redeem fewer than all of the outstanding Notes, the Notes to be redeemed will be selected according to DTC’s applicable procedures, in the case of Notes represented by a Global Note, or, in the case of Physical Notes, the Trustee shall select Notes to be redeemed in whole or in part, pro rata, by lot or by such other method as the Trustee shall deem fair and appropriate. If the Trustee selects a portion of a Holder’s Notes for partial redemption and such Holder converts a portion of such Notes, the converted portion will be deemed to be from the portion selected for redemption. In the event of any redemption in part, the Company shall not be required to register the transfer of or exchange any Note so selected for redemption, in whole or in part, except the unredeemed portion of any such Note being redeemed in part.

(d) No Notes may be redeemed if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to the Redemption Date (except in the case of an acceleration resulting from a default by the Company in the payment of the redemption price with respect to such Notes).

Section 13.04 No Sinking Fund. The Company is not required to make sinking fund payments with respect to the Notes.

ARTICLE 14

CONVERSION OF NOTES

Section 14.01 Conversion upon Change of Control prior to the Qualified IPO. Prior to the Qualified IPO, each Holder of a Note shall have the right, at such Holder’s option, to convert all or any portion (if the portion to be converted is $1,000 principal amount or an integral multiple thereof (or, if a PIK Payment has been made, if the portion to be converted is $1.00 principal amount or an integral multiple thereof )) of such Note on or after the time that is ten (10) Business Days prior to the anticipated effective date of a Change of Control until the close of business on the 35th Business Day following the actual date such Change of Control becomes effective (the “Change of Control Effective Date”), into shares of Common Stock (or, if such Holder exercises such conversion right following the effective date of such Change of Control, such Reference Property pursuant to Section 14.08 in lieu of such Common Stock), together with a cash payment in lieu of delivering any fractional share as set forth below under Section 14.03(c), at a conversion rate equal to (a), if no PIK Payment has been made, the greater of (i) the Change of Control Maximum Conversion Rate and (ii) the quotient (rounded to eight decimal places) of (A) $1,000 and (B) 80% of the Transaction Price per share of Common Stock in such transaction (such greater rate, the “Change of Control Conversion Rate”) per $1,000 principal amount of Notes or (b), if a PIK Payment has been made, the quotient of (i) the Change of Control Conversion Rate and (ii) $1,000, per $1.00 principal amount of Notes (subject, in each case, to, and in accordance with, the settlement provisions of Section 14.03, the “Change of Control Conversion Obligation”). The Company shall notify the Holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of any Change of Control prior to the Qualified IPO no later than fifteen (15) Business Days prior to the anticipated effective date of a Change of Control (or if such anticipated effective date is not known prior to such date, promptly following knowledge of such anticipated effective date but in any event no later than two (2) Business Days after the Change of Control Effective Date). In the case of Physical Notes, such notice shall be by first class mail or, in the case of Global Notes, such notice shall be delivered in accordance with the

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applicable procedures of the Depositary. No failure of the Company to give the foregoing notice and no defect therein shall limit the Holders’ conversion rights or affect the validity of the proceedings for the conversion of the Notes pursuant to this Section 14.01. In the event such Change of Control is a Change of Control Redemption Right Event, the right of the Holders to elect to convert their Notes pursuant to this Section 14.01 shall continue until the later of (i) the applicable Change of Control Effective Date and (ii) the 10th Business Day after Holders receive the Change of Control Redemption Notice.

Section 14.02 Conversion on or after the earlier to occur of the Qualified IPO and September 1, 2020. Prior to the earlier of the Qualified IPO and September 1, 2020, the Notes may not be converted other than as provided above in Section 14.01 upon the occurrence of a Change of Control. Subject to and upon compliance with the provisions of this Article 14, each Holder of a Note shall have the right, at such Holder’s option, to convert all or any portion (if the portion to be converted is $1,000 principal amount or an integral multiple thereof (or, if a PIK Payment has been made, if the portion to be converted is $1.00 or an integral multiple thereof)) of such Note on or after the earlier to occur of the Qualified IPO and September 1, 2020 until the close of business on the Business Day immediately preceding the Maturity Date at an initial conversion rate of (a), if no PIK Payment has been made, 32.35200000 (subject to adjustment as provided in this Article 14, the “Conversion Rate”) shares of Common Stock per $1,000 principal amount of Notes or (b), if a PIK Payment has been made, the quotient of (i) the Conversion Rate and (ii) $1,000, per $1.00 principal amount of Notes (subject, in each case, to, and in accordance with, the settlement provisions of Section 14.03, the “Conversion Obligation”); provided that if a Change of Control Effective Date occurs on or after September 1, 2020 and prior to the Qualified IPO, Holders’ option to convert their Notes on or after such Change of Control Effective Date and until the earlier to occur of the Qualified IPO and the close of business on the 35th Business Day after such Change of Control Effective Date shall be pursuant to Section 14.01 and not this Section 14.02.

Section 14.03 Conversion Procedure; Settlement Upon Conversion.

(a) Subject to Section 14.01, Section 14.02, this Section 14.03, Section 14.04(b) and Section 14.08(a), upon conversion of any Note pursuant to (i) Section 14.01, the Company shall deliver to the converting Holder shares of Common Stock, together with a cash payment in lieu of delivering any fractional share as set forth below under Section 14.03(c), at a conversion rate in accordance with Section 14.01 (as adjusted pursuant to Section 14.05, as applicable); or (ii) Section 14.02 (subject to the final proviso thereto), the Company shall deliver to the converting Holder shares of Common Stock, together with a cash payment in lieu of delivering any fractional share as set forth below under Section 14.03(c), at a conversion rate in accordance with Section 14.02 (as adjusted pursuant to Section 14.05, as applicable), in each case (i) and (ii), on the third Business Day following the relevant Conversion Date. A Holder may convert fewer than all of such Holder’s Notes.

(b) Before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the procedures of the Depositary in effect at that time (allowing for sufficient time to comply) and, if required, (1) pay funds to the Conversion Agent equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.03(h) and (2) pay all transfer and similar taxes as

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set forth in Section 14.03(d) and Section 14.03(e); and (ii) in the case of a Physical Note, (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation or the Change of Control Conversion Obligation, as the case may be, to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents, (4) if required, pay all transfer and similar taxes as set forth in Section 14.03(d) and Section 14.03(e) and (5) if required, pay funds to the Conversion Agent equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.03(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice, a Specified Repurchase Date Notice or a Change of Control Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice, Specified Repurchase Date Notice or Change of Control Repurchase Notice in accordance with Section 15.04.

If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation or the Change of Control Conversion Obligation, as the case may be, with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.

(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. On the third (3rd) Business Day immediately following the relevant Conversion Date, the Company shall issue or cause to be issued, and deliver to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common Stock to which such Holder shall be entitled in satisfaction of the Company’s Conversion Obligation or the Change of Control Conversion Obligation, as the case may be.

(d) In case any Physical Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.

(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common

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Stock upon conversion, unless the tax is due because the Holder requests any such shares to be issued in a name other than the Holder’s name, in which case the Holder must pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.

(f) Except as provided in Section 14.05, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14.

(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.

(h) Subject to Sections 14.01 and 14.02, upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation or Change of Control Conversion Obligation, as applicable, shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but excluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excluding, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period beginning after the close of business on any Regular Record Date and ending at the open of business on the immediately following Interest Payment Date must be accompanied by cash funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for Notes surrendered for conversion after the close of business on the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the date on which the corresponding interest payment is made; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (4) if the Company has specified a Change of Control Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (5) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note; or (6) if the Specified Repurchase Date is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, any Specified Repurchase Date, any Fundamental Change Repurchase Date described in clause (3), any Change of Control Repurchase Date described in clause (4) and any Redemption Date described in clause (2) of the immediately preceding sentence shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date regardless of whether their Notes have been converted or repurchased, as applicable, following such Regular Record Date.

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(i) The Person in whose name the shares of Common Stock shall be issuable upon a conversion of Notes shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.

(j) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Stock issuable upon a conversion based on (A) if the Conversion Date occurs prior to the consummation of a Qualified IPO, the fair market value on the relevant Conversion Date of one share of Common Stock (as determined in good faith by the Board of Directors after consultation with a reputable independent investment bank, independent valuation firm or other qualified financial institution selected by the Company, except that to the extent Disputing Holders dispute such fair market values in writing to the Company (with a copy to the Trustee and the Conversion Agent (if other than the Trustee)) on or before the 20_th Business Day after receipt of such good faith determination of the Board of Directors, such fair market values shall be mutually determined by the Company and the Disputing Holders, and if the Company and the Disputing Holders are unable to reach agreement, such fair market values shall be determined by an independent nationally recognized investment bank selected by the Company and the Disputing Holders and delivered to the Trustee and the Conversion Agent (if other than the Trustee) within 30 Business Days following such Conversion Date) and (B) otherwise, the Last Reported Sale Price of the Common Stock on the relevant Conversion Date. The Company shall pay such cash amount on or before the third (3rd) Business Day following the Conversion Date, or, if the fair market value of the Company’s Common Stock is in dispute pursuant to clause (A) of this Section 14.03(j), then the Company shall pay such cash amount to the applicable Holders on or before the third (3rd) Business Day following determination of such fair market value.

Section 14.04 Adjustment to Conversion Rate upon Conversion upon a Make-Whole Fundamental Change on or after the Qualified IPO or a Provisional Redemption.

(a) If, (i) on or after the Qualified IPO and prior to the Maturity Date, a Make-Whole Fundamental Change Effective Date occurs, or (ii) the Company calls the Notes for Provisional Redemption pursuant to Section 13.01, and a Holder elects to convert its Notes in connection with such Make-Whole Fundamental Change or Provisional Redemption, the Company shall, under the circumstances described below, increase the Conversion Rate for the Notes so surrendered for conversion by a number of additional shares of Common Stock (the “Additional Shares”), as described in this Section 14.04. A conversion of Notes shall be deemed for these purposes to be “in connection with” (x) such Make-Whole Fundamental Change if the relevant Notice of Conversion for such Notes is received by the Conversion Agent from, and including, the Make-Whole Fundamental Change Effective Date up to, and including, the Business Day immediately prior to the related Fundamental Change Repurchase Date (or, in the case of a Make-Whole Fundamental Change that would have been a Fundamental Change but for the proviso in clause (b) of the definition thereof, the close of business on the 35th Trading Day immediately following the Make-Whole Fundamental Change Effective Date) or (y) such Provisional Redemption if the relevant Notice of Conversion for such Notes is received by the Conversion Agent on or after the

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date the Company sends a Notice of Redemption pursuant to Section 13.03 in respect of such Provisional Redemption and prior to the close of business on the Scheduled Trading Day immediately preceding the related Redemption Date (the “Redemption Conversion Period”) (any such period referred to in clause (x) or (y), the “Make-Whole Fundamental Change Period”).

(b) Upon surrender of Notes for conversion in connection with a Make-Whole Fundamental Change on or after the Qualified IPO and prior to the Maturity Date or a Provisional Redemption pursuant to Section 13.01, the Company shall deliver shares of Common Stock, including the Additional Shares, in accordance with Section 14.03; provided, however, that if, at the effective time of a Make-Whole Fundamental Change described in clause (b) of the definition of Fundamental Change, the Reference Property following such Make-Whole Fundamental Change is composed entirely of cash, for any conversion of Notes following the Make-Whole Fundamental Change Effective Date, the Conversion Obligation shall be calculated based solely on the Stock Price for the transaction and shall be deemed to be an amount of cash per $1,000 (or if a PIK Payment has been made, $1.00) principal amount of converted Notes equal to the number of shares of Common Stock into which $1,000 (or if a PIK Payment has been made, $1.00) principal amount of the Notes would be convertible at the Conversion Rate (including any adjustment as described in this Section 14.04) (or if a PIK Payment has been made, the quotient of (1) the Conversion Rate (including any adjustment as described in this Section 14.04) and (2) $1,000), multiplied by such Stock Price. The Company shall notify the Holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of any Make-Whole Fundamental Change Effective Date and issue a press release announcing such effective date no later than five Business Days after such Make-Whole Fundamental Change Effective Date. No failure of the Company to give the foregoing notice and no defect therein shall limit the Holders’ conversion rights or affect the validity of the Make-Whole Fundamental Change Effective Date pursuant to this Section 14.04(b).

(c) The number of Additional Shares, if any, by which the Conversion Rate shall be increased shall be determined by reference to the Make-Whole Table (as defined below), based on the date on which the Make-Whole Fundamental Change occurs or becomes effective (the “Make-Whole Fundamental Change Effective Date”) or the Redemption Notice Date, as applicable, and the price paid (or deemed to be paid) per share of the Common Stock in the Make-Whole Fundamental Change or on the stock price on the Redemption Notice Date, as applicable (the “Stock Price”). If the holders of the Common Stock receive in exchange for their Common Stock only cash in a Make-Whole Fundamental Change described in clause (b) of the definition of Fundamental Change, the Stock Price shall be the cash amount paid per share. In the case of any other Make-Whole Fundamental Change, the Stock Price shall be the average of the Last Reported Sale Prices of the Common Stock over the five Trading Day period ending on, and including, the Trading Day immediately preceding the Make-Whole Fundamental Change Effective Date. The Stock Price in connection with a Provisional Redemption shall be the average of the Last Reported Sale Prices of the Common Stock over the five Trading Day period ending on, and including, the Trading Day immediately preceding the Redemption Notice Date. In the event that a conversion in connection with a Provisional Redemption would also be deemed to be in connection with a Make-Whole Fundamental Change, a Holder of the Notes to be converted shall be entitled to a single increase to the Conversion Rate with respect to the first to occur of the applicable Redemption Notice Date or the Make-Whole Fundamental Change

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Effective Date of the applicable Make-Whole Fundamental Change, and the later event will be deemed not to have occurred for purposes of this Section 14.04. The Board of Directors shall make appropriate adjustments to the Stock Price, in its good faith determination, to account for any adjustment to the Conversion Rate that becomes effective, or any event requiring an adjustment to the Conversion Rate where the Ex-Dividend Date, Effective Date or expiration date of the event occurs during such five consecutive Trading Day period.

(d) Within two Business Days following the consummation of the Qualified IPO, the Company shall deliver an Officer’s Certificate to the Trustee and a notice to the Holders setting forth the “Make-Whole Table” (the “Make-Whole Table”) and related provisions (collectively with the Make-Whole Table, the “Make-Whole Provisions”). The Make-Whole Provisions will be consistent in all material respects with make-whole provisions that are customary for indentures governing convertible notes issued in market registered offerings as of the Issue Date, as determined in good faith by Morgan Stanley & Co. LLC in a commercially reasonable manner. Morgan Stanley & Co. LLC shall determine the Make-Whole Table consistent with the following methodology and inputs: maturity, coupon, conversion premium (as calculated using the relationship between the Qualified IPO Price and the adjusted conversion price), assuming L + 600 bps credit spread, 1.75% 5-year swap rate, 40% volatility and 0.25% borrow cost in the Kynex convertible bond model.

(e) Nothing in this Section 14.04 shall prevent an adjustment to the Conversion Rate pursuant to Section 14.05 in respect of a Make-Whole Fundamental Change.

Section 14.05 Adjustment of Conversion Rate. The Conversion Rate shall be adjusted from time to time by the Company if any of the following events occurs, except that the Company shall not make any adjustments to the Conversion Rate if Holders of the Notes participate (other than in the case of (x) a share split or share combination, (y) a tender or exchange offer or (z) Qualified IPO, in each case, that would result in an adjustment to the Conversion Rate pursuant to Section 14.05(a), Section 14.05(e) below or Section 14.05(f) below), at the same time and upon the same terms as holders of the Common Stock and solely as a result of holding the Notes, in any of the transactions described in this Section 14.05, without having to convert their Notes, as if they held a number of shares of Common Stock equal to the Conversion Rate, multiplied by the principal amount (expressed in thousands) of Notes held by such Holder. The Conversion Rate, as adjusted pursuant to this Section 14.05, in effect immediately prior to the Qualified IPO is referred to as the “Maximum Initial Conversion Rate”. The Conversion Rate, as adjusted pursuant to this Section 14.05, in effect immediately prior to a Change of Control Effective Date is referred to as the “Change of Control Maximum Conversion Rate” in respect of any conversions that take place on or after such Change of Control Effective Date until the close of business on the 35th Business Day following such Change of Control Effective Date (for the avoidance of doubt, each Change of Control may have a different Change of Control Maximum Conversion Rate associated with it).

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(a) If the Company exclusively issues shares of Common Stock as a dividend or distribution on shares of the Common Stock, or if the Company effects a share split or share combination, the Conversion Rate shall be adjusted based on the following formula:

where,

CR0	=	the Conversion Rate in effect immediately prior to the open of business on the Ex-Dividend Date of such dividend or distribution, or immediately prior to the open of business on the Effective Date of such share split or share combination, as applicable;
CR'	=	the Conversion Rate in effect immediately after the open of business on such Ex-Dividend Date or Effective Date, as applicable;
OS0	=	the number of shares of Common Stock outstanding immediately prior to the open of business on such Ex-Dividend Date or Effective Date, as applicable; and
OS'	=	the number of shares of Common Stock outstanding immediately after giving effect to such dividend, distribution, share split or share combination.

Any adjustment made under this Section 14.05(a) shall become effective immediately after the open of business on the Ex-Dividend Date for such dividend or distribution, or immediately after the open of business on the Effective Date for such share split or share combination, as applicable. If any dividend or distribution of the type described in this Section 14.05(a) is declared but not so paid or made, the Conversion Rate shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.

(b) If the Company issues to all or substantially all holders of the Common Stock any rights, options or warrants entitling them, for a period of not more than 45 calendar days after the announcement date of such issuance, to subscribe for or purchase shares of the Common Stock at a price per share that is less than (i) with respect to an issuance for which the announcement of such issuance occurs on or before the 10th Trading Day immediately following the Qualified IPO, the average of the fair market value on each applicable Trading Day of one share of Common Stock (as determined in good faith by the Board of Directors after consultation with a reputable independent investment bank, independent valuation firm or other qualified financial institution selected by the Company, except that to the extent Disputing Holders dispute such fair market values in writing to the Company (with a copy to the Trustee and the Conversion Agent (if other than the Trustee)) on or before the 20th Business Day after receipt of such good faith determination of the Board of Directors, such fair market values shall be mutually determined by the Company and the Disputing Holders, and if the Company and the Disputing Holders are unable to reach agreement, such fair market values shall be determined by an independent nationally recognized investment bank selected by the Company and the Disputing Holders and delivered to the Trustee and the Conversion Agent (if other than the Trustee) within 30 Business Days following such issuance) for the 10 consecutive Trading Day period ending on, and including the Trading Day immediately preceding the date of announcement of such issuance or with respect to an issuance for which the announcement of such issuance occurs after the 10th Trading Day immediately following the Qualified IPO, the average of the Last Reported Sale

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Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance, the Conversion Rate shall be increased based on the following formula:

where,

CR0	=	the Conversion Rate in effect immediately prior to the open of business on the Ex-Dividend Date for such issuance;
CR'	=	the Conversion Rate in effect immediately after the open of business on such Ex-Dividend Date;
OS0	=	the number of shares of Common Stock outstanding immediately prior to the open of business on such Ex-Dividend Date;
X	=	the total number of shares of Common Stock issuable pursuant to such rights, options or warrants; and
Y	=	the number of shares of Common Stock equal to the aggregate price payable to exercise such rights, options or warrants, divided by (i) with respect to an issuance for which the announcement of such issuance occurs on or before the 10th Trading Day immediately following the Qualified IPO, the average of the fair market value on each applicable Trading Day of one share of Common Stock (as determined in good faith by the Board of Directors after consultation with a reputable independent investment bank, independent valuation firm or other qualified financial institution selected by the Company, except that to the extent Disputing Holders dispute such fair market values in writing to the Company (with a copy to the Trustee and the Conversion Agent (if other than the Trustee)) on or before the 20th Business Day after receipt of such good faith determination of the Board of Directors, such fair market values shall be mutually determined by the Company and the Disputing Holders, and if the Company and the Disputing Holders are unable to reach agreement, such fair market values shall be determined by an independent nationally recognized investment bank selected by the Company and the Disputing Holders and delivered to the Trustee and the Conversion Agent (if other than the Trustee) within 30 Business Days following such issuance) over the 10 consecutive Trading Day period ending on, and including the Trading Day immediately preceding the date of announcement of such issuance and (ii) with respect to an issuance for which the announcement of such issuance occurs after the 10th Trading Day immediately following the Qualified IPO, the average of the Last Reported Sale Prices of the Common Stock over the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of the issuance of such rights, options or warrants.

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Any increase made under this Section 14.05(b) shall be made successively whenever any such rights, options or warrants are issued and shall become effective immediately after the open of business on the Ex-Dividend Date for such issuance. To the extent that shares of the Common Stock are not delivered after the expiration of such rights, options or warrants, the Conversion Rate shall be decreased to the Conversion Rate that would then be in effect had the increase with respect to the issuance of such rights, options or warrants been made on the basis of delivery of only the number of shares of Common Stock actually delivered. If such rights, options or warrants are not so issued, the Conversion Rate shall be decreased to the Conversion Rate that would then be in effect if such Ex-Dividend Date for such issuance had not occurred.

For purposes of this Section 14.05(b), in determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of the Common Stock at a price per share that is less than such average of the Last Reported Sale Prices of the Common Stock over the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance or such average of the fair market value on each applicable Trading Day of one share of Common Stock over the 10 consecutive Trading Day period ending on, and including the Trading Day immediately preceding the date of announcement of such issuance, as the case may be, and in determining the aggregate offering price of such shares of Common Stock, there shall be taken into account any consideration received by the Company for such rights, options or warrants and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash, to be determined by the Board of Directors.

(c) If the Company distributes shares of its Capital Stock, evidences of its indebtedness, other assets or property of the Company or rights, options or warrants to acquire shares of its Capital Stock or other securities, to all or substantially all holders of the Common Stock, excluding (i) dividends, distributions or issuances as to which an adjustment was effected pursuant to Section 14.05(a), Section 14.05(b) or Section 14.05(e), (ii) dividends or distributions paid exclusively in cash as to which an adjustment was effected pursuant to Section 14.05(d), (iii) any dividends or distributions of Reference Property in exchange for Common Stock in connection with any transaction described in Section 14.08, (iv) except as otherwise provided in Section 14.12, rights issued pursuant to a shareholder rights plan adopted by the Company and (v) Spin-Offs as to which the provisions set forth below in this Section 14.05(c) shall apply (any of such shares of Capital Stock, evidences of indebtedness, other assets or property or rights, options or warrants to acquire shares of Capital Stock or other securities, the “Distributed Property”), then the Conversion Rate shall be increased based on the following formula:

where,

CR0	=	the Conversion Rate in effect immediately prior to the open of business on the Ex-Dividend Date for such distribution;
CR'	=	the Conversion Rate in effect immediately after the open of business on such Ex-Dividend Date;

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SP0	=	(i) with respect to a distribution that has an Ex-Dividend Date that occurs on or before the 10th Trading Day immediately succeeding the Qualified IPO, the average of the fair market value on each applicable Trading Day of one share of Common Stock (as determined in good faith by the Board of Directors after consultation with a reputable independent investment bank, independent valuation firm or other qualified financial institution selected by the Company, except that to the extent Disputing Holders dispute such fair market values in writing to the Company (with a copy to the Trustee and the Conversion Agent (if other than the Trustee)) on or before the 20th Business Day after receipt of such good faith determination of the Board of Directors, such fair market values shall be mutually determined by the Company and the Disputing Holders, and if the Company and the Disputing Holders are unable to reach agreement, such fair market values shall be determined by an independent nationally recognized investment bank selected by the Company and the Disputing Holders and delivered to the Trustee and the Conversion Agent (if other than the Trustee) within 30 Business Days following such issuance) over the 10 consecutive Trading Day period ending on, and including the Trading Day immediately preceding the Ex-Dividend Date for such distribution or (ii) with respect to a distribution that has an Ex-Dividend Date that occurs after the 10th Trading Day immediately succeeding the Qualified IPO, the average of the Last Reported Sale Prices of the Common Stock over the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and
FMV	=	the fair market value (as determined in good faith by the Board of Directors) of the Distributed Property with respect to each outstanding share of the Common Stock on the Ex-Dividend Date for such distribution.

Any increase made under the portion of this Section 14.05(c) above shall become effective immediately after the open of business on the Ex-Dividend Date for such distribution. If such distribution is not so paid or made, the Conversion Rate shall be decreased to be the Conversion Rate that would then be in effect if such distribution had not been declared.

Notwithstanding the foregoing, if “FMV” (as defined above) is equal to or greater than “SP₀” (as defined above), in lieu of the foregoing increase, each Holder of a Note shall receive, in respect of each $1,000 (or if a PIK Payment has been made, $1.00) principal amount thereof, at the same time and upon the same terms as holders of the Common Stock receive the Distributed Property, the amount and kind of Distributed Property such Holder would have received if such Holder owned a number of shares of Common Stock equal to the Conversion Rate in effect on the Record Date for the distribution (or if a PIK Payment has been made, the quotient of (1) the Conversion Rate then in effect on the Record Date for such distribution and (2) 1,000). If the Board of Directors determines the “FMV” (as defined above) of any distribution for purposes of this Section 14.05(c) by reference to the actual or when-issued trading market for any securities, it shall in doing so consider the prices in such market over the same period used in computing the Last Reported Sale Prices of the Common Stock over the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such distribution.

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With respect to an adjustment pursuant to this Section 14.05(c) where there has been a payment of a dividend or other distribution on the Common Stock of shares of Capital Stock of any class or series, or similar equity interest, of or relating to a Subsidiary or other business unit of the Company, that are, or, when issued, will be, listed or admitted for trading on a U.S. national securities exchange (a “Spin-Off”), the Conversion Rate shall be increased based on the following formula:

where,

CR0	=	the Conversion Rate in effect immediately prior to the open of business on the Ex-Dividend Date for such Spin-Off;
CR'	=	the Conversion Rate in effect immediately after the open of business on the Ex-Dividend Date for such Spin-Off;
FMV0	=	the average of the Last Reported Sale Prices of the shares of Capital Stock or similar equity interest distributed to holders of the Common Stock applicable to one share of the Common Stock (determined by reference to the definition of Last Reported Sale Price as set forth in Section 1.01 as if references therein to Common Stock were to such Capital Stock or similar equity interest) over the first 10 consecutive Trading Day period after, and including, the Ex-Dividend Date of the Spin-Off (the “Valuation Period”); and
MP0	=	(i) with respect to a distribution that has an Ex-Dividend Date that occurs before the Qualified IPO, the average of the fair market value on each applicable Trading Day of one share of Common Stock (as determined in good faith by the Board of Directors after consultation with a reputable independent investment bank, independent valuation firm or other qualified financial institution selected by the Company, except that to the extent Disputing Holders dispute such fair market values in writing to the Company (with a copy to the Trustee and the Conversion Agent (if other than the Trustee)) on or before the 20th Business Day after receipt of such good faith determination of the Board of Directors, such fair market values shall be mutually determined by the Company and the Disputing Holders, and if the Company and the Disputing Holders are unable to reach agreement, such fair market values shall be determined by an independent nationally recognized investment bank selected by the Company and the Disputing Holders and delivered to the Trustee and the Conversion Agent (if other than the Trustee) within 30 Business Days following such issuance) over the Valuation Period or (ii) with respect to a distribution that has an Ex-Dividend Date that occurs on or after the Qualified IPO, the average of the Last Reported Sale Prices of the Common Stock over the Valuation Period.

The increase to the Conversion Rate under the preceding paragraph shall be determined by the Company on the last Trading Day of the Valuation Period, but shall be given effect at the open

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of business on the Ex-Dividend Date for such Spin-Off. Notwithstanding the foregoing, in respect of any conversion of Notes during the Valuation Period, references in the portion of this Section 14.05(c) related to Spin-Offs with respect to 10 consecutive Trading Days shall be deemed to be replaced with such lesser number of Trading Days as have elapsed from, and including, the Ex-Dividend Date of such Spin-Off to, but excluding, the Conversion Date in determining the Conversion Rate. If the Ex-Dividend Date for the Spin-Off is less than 10 Trading Days prior to, and including, the end of the Observation Period in respect of any conversion of Notes, references in the preceding paragraph to 10 consecutive Trading Days will be deemed to be replaced, solely in respect of that conversion of Notes, with such lesser number of Trading Days as have elapsed from, and including, the Ex-Dividend Date for the Spin-Off to, and including, the last Trading Day of such Observation Period. If such Spin-Off does not occur, the Conversion Rate shall be decreased to be the Conversion Rate that would then be in effect if such distribution had not been declared, effective as of the date on which the Board of Directors determines not to consummate such Spin-Off.

For purposes of this Section 14.05(c) (and subject in all respects to Section 14.12), rights, options or warrants distributed by the Company to all holders of the Common Stock entitling them to subscribe for or purchase shares of the Company’s Capital Stock, including Common Stock (either initially or under certain circumstances), which rights, options or warrants, until the occurrence of a specified event or events (“Trigger Event”): (i) are deemed to be transferred with such shares of the Common Stock; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of the Common Stock, shall be deemed not to have been distributed for purposes of this Section 14.05(c) (and no adjustment to the Conversion Rate under this Section 14.05(c) will be required) until the occurrence of the earliest Trigger Event, whereupon such rights, options or warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section 14.05(c). If any such right, option or warrant, including any such existing rights, options or warrants distributed prior to the Issue Date, are subject to events, upon the occurrence of which such rights, options or warrants become exercisable to purchase different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and Ex-Dividend Date with respect to new rights, options or warrants with such rights (in which case the existing rights, options or warrants shall be deemed to terminate and expire on such date without exercise by any of the holders thereof). In addition, in the event of any distribution (or deemed distribution) of rights, options or warrants, or any Trigger Event or other event (of the type described in the immediately preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 14.05(c) was made, (1) in the case of any such rights, options or warrants that shall all have been redeemed or purchased without exercise by any holders thereof, upon such final redemption or purchase (x) the Conversion Rate shall be readjusted as if such rights, options or warrants had not been issued and (y) the Conversion Rate shall then again be readjusted to give effect to such distribution, deemed distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or purchase price received by a holder or holders of Common Stock with respect to such rights, options or warrants (assuming such holder had retained such rights, options or warrants), made to all holders of Common Stock as of the date of such redemption or purchase, and (2) in the case of such rights, options or warrants that shall have expired or been terminated (or deemed to have expired or been terminated pursuant to the immediately preceding sentence) without exercise by any holders

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thereof, the Conversion Rate shall be readjusted as if such rights, options and warrants had not been issued (to the extent any adjustment to the Conversion Rate was made in connection with such issuance).

For purposes of Section 14.05(a), Section 14.05(b) and this Section 14.05(c), if any dividend or distribution to which this Section 14.05(c) is applicable also includes one or both of:

(A) a dividend or distribution of shares of Common Stock to which Section 14.05(a) is applicable (the “Clause A Distribution”); or

(B) a dividend or distribution of rights, options or warrants to which Section 14.05(b) is applicable (the “Clause B Distribution”),

then, in either case, (1) such dividend or distribution, other than the Clause A Distribution and the Clause B Distribution, shall be deemed to be a dividend or distribution to which this Section 14.05(c) is applicable (the “Clause C Distribution”) and any Conversion Rate adjustment required by this Section 14.05(c) with respect to such Clause C Distribution shall then be made, and (2) the Clause A Distribution and Clause B Distribution shall be deemed to immediately follow the Clause C Distribution and any Conversion Rate adjustment required by Section 14.05(a) and Section 14.05(b) with respect thereto shall then be made, except that, if determined by the Company (I) the “Ex-Dividend Date” of the Clause A Distribution and the Clause B Distribution shall be deemed to be the Ex-Dividend Date of the Clause C Distribution and (II) any shares of Common Stock included in the Clause A Distribution or Clause B Distribution shall be deemed not to be “outstanding immediately prior to the open of business on such Ex-Dividend Date or Effective Date” within the meaning of Section 14.05(a) or “outstanding immediately prior to the open of business on such Ex-Dividend Date” within the meaning of Section 14.05(b).

(d) If the Company makes any cash dividend or distribution to all or substantially all holders of the Common Stock, the Conversion Rate shall be adjusted based on the following formula:

where,

CR0	=	the Conversion Rate in effect immediately prior to the open of business on the Ex-Dividend Date for such dividend or distribution;
CR'	=	the Conversion Rate in effect immediately after the open of business on the Ex-Dividend Date for such dividend or distribution;
SP0	=	(i) with respect to a dividend or distribution that has an Ex-Dividend Date on or prior to the Qualified IPO, the fair market value of one share of Common Stock (as determined in good faith by the Board of Directors after consultation with a reputable independent investment bank, independent valuation firm or other qualified financial institution selected by the Company, except that to the extent Disputing Holders dispute such fair market values in writing to the Company (with

94

		a copy to the Trustee and the Conversion Agent (if other than the Trustee)) on or before the 20th Business Day after receipt of such good faith determination of the Board of Directors, such fair market values shall be mutually determined by the Company and the Disputing Holders, and if the Company and the Disputing Holders are unable to reach agreement, such fair market values shall be determined by an independent nationally recognized investment bank selected by the Company and the Disputing Holders and delivered to the Trustee and the Conversion Agent (if other than the Trustee) within 30 Business Days following such issuance) on the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution or (ii) with respect to a dividend or distribution that has an Ex-Dividend Date after the Qualified IPO, the Last Reported Sale Price of the Common Stock on the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; and
C	=	the amount in cash per share the Company distributes to all or substantially all holders of the Common Stock.

Any increase made under this Section 14.05(d) shall become effective immediately after the open of business on the Ex-Dividend Date for such dividend or distribution. If such dividend or distribution is not so paid, the Conversion Rate shall be decreased, effective as of the date the Board of Directors determines not to make or pay such dividend or distribution, to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. Notwithstanding the foregoing, if “C” (as defined above) is equal to or greater than “SP₀” (as defined above), in lieu of the foregoing increase, each Holder of a Note shall receive, for each $1,000 (or if a PIK Payment has been made, $1.00) principal amount of Notes, at the same time and upon the same terms as holders of shares of the Common Stock, the amount of cash that such Holder would have received if such Holder owned a number of shares of Common Stock equal to the Conversion Rate on the Record Date for such cash dividend or distribution (or if a PIK Payment has been made, the quotient of (1) the Conversion Rate in effect on the Record Date for such cash dividend or distribution and (2) 1,000).

(e) If the Company or any of its Subsidiaries make a payment in respect of a tender or exchange offer for the Common Stock, other than an odd lot tender offer, to the extent that the cash and value of any other consideration included in the payment per share of the Common Stock exceeds (i) with respect to a tender or exchange offer for which the last date on which tenders or exchanges may be made occurs prior to the Trading Day immediately preceding the Qualified IPO, the fair market value of one share of Common Stock (as determined in good faith by the Board of Directors after consultation with a reputable independent investment bank, independent valuation firm or other qualified financial institution selected by the Company, except that to the extent Disputing Holders dispute such fair market values in writing to the Company (with a copy to the Trustee and the Conversion Agent (if other than the Trustee)) on or before the 20th Business Day after receipt of such good faith determination of the Board of Directors, such fair market values shall be mutually determined by the Company and the Disputing Holders, and if the Company and the Disputing Holders are unable to reach agreement, such fair market values shall be determined by an independent nationally recognized investment bank selected by the Company and the Disputing Holders and delivered to the Trustee and the Conversion Agent (if other than the Trustee) within 30 Business Days following such issuance)

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on the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender or exchange offer or (ii) with respect to a tender or exchange offer for which the last date on which tenders of exchanges may be made occurs on or after the Trading Day immediately preceding the Qualified IPO, the Last Reported Sale Price of the Common Stock on the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender or exchange offer, the Conversion Rate shall be increased based on the following formula:

where,

CR0	=	the Conversion Rate in effect immediately prior to the open of business on the Trading Day next succeeding the date such tender or exchange offer expires;
CR'	=	the Conversion Rate in effect immediately after the open of business on the Trading Day next succeeding the date such tender or exchange offer expires;
AC	=	the aggregate value of all cash and any other consideration (as determined by the Board of Directors) paid or payable for shares of Common Stock purchased in such tender or exchange offer;
OS0	=	the number of shares of Common Stock outstanding immediately prior to the open of business on the date such tender or exchange offer is consummated (prior to giving effect to the purchase of all shares of Common Stock accepted for purchase or exchange in such tender or exchange offer);
OS'	=	the number of shares of Common Stock outstanding immediately after the open of business on the date such tender or exchange offer is consummated (after giving effect to the purchase of all shares of Common Stock accepted for purchase or exchange in such tender or exchange offer); and
SP'	=	(i) with respect to a tender or exchange offer for which the last date on which tenders or exchanges may be made occurs prior to the Trading Day immediately preceding the Qualified IPO, the average of the fair market value of one share of Common Stock (as determined in good faith by the Board of Directors after consultation with a reputable independent investment bank, independent valuation firm or other qualified financial institution selected by the Company, except that to the extent Disputing Holders dispute such fair market values in writing to the Company (with a copy to the Trustee and the Conversion Agent (if other than the Trustee)) on or before the 20th Business Day after receipt of such good faith determination of the Board of Directors, such fair market values shall be mutually determined by the Company and the Disputing Holders, and if the Company and the Disputing Holders are unable to reach agreement, such fair market values shall be determined by an independent nationally recognized investment bank selected by the Company and the Disputing Holders and delivered to the Trustee and the

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Conversion Agent (if other than the Trustee) within 30 Business Days following such issuance) over the 10 consecutive Trading Day period ending on, and including on the 10 consecutive Trading Day period commencing on, and including, the Trading Day next succeeding the date such tender or exchange offer expires or (ii) with respect to a tender or exchange offer for which the last date on which tenders of exchanges may be made occurs on or after the Trading Day immediately preceding the Qualified IPO, the average of the Last Reported Sale Prices of the Common Stock over the 10 consecutive Trading Day period commencing on, and including, the Trading Day next succeeding the date such tender or exchange offer expires.

The increase to the Conversion Rate under this Section 14.05(e) shall be determined at the close of business on the 10th Trading Day immediately following, and including, the Trading Day next succeeding the date such tender or exchange offer expires, but shall be given effect at the open of business on the Trading Day next succeeding the date such tender or exchange offer expires. Notwithstanding the foregoing, in respect of any conversion of Notes within the 10 Trading Days immediately following, and including, the Trading Day next succeeding the expiration date of any tender or exchange offer, references in this Section 14.05(e) with respect to “10 consecutive Trading Days” shall be deemed replaced with such lesser number of Trading Days as have elapsed between the expiration date of such tender or exchange offer and the Conversion Date in determining the Conversion Rate. In addition, if the Trading Day next succeeding the expiration date for such tender or exchange offer is less than 10 Trading Days prior to, and including, the end of the Observation Period (if applicable) in respect of any conversion of Notes, references in the preceding paragraph to “10 consecutive Trading Days” shall be deemed to be replaced, solely in respect of that conversion of Notes, with such lesser number of Trading Days as have elapsed from, and including, the Trading Day next succeeding the expiration date for such tender or exchange offer to, and including, the last Trading Day of such Observation Period. For the avoidance of doubt, no adjustment pursuant to this Section 14.05(e) shall be made if such adjustment would result in a decrease in the Conversion Rate.

If the Company is obligated to purchase shares of the Common Stock pursuant to any such tender or exchange offer described in this Section 14.05(e) but is permanently prevented by applicable law from effecting any such purchase or all such purchases are rescinded, the applicable Conversion Rate shall be readjusted to be the Conversion Rate that would then be in effect if such tender or exchange offer had not been made or had been made only in respect of the purchases that have been effected.

(f) Upon completion of the Qualified IPO, the Conversion Rate will be equal to the greater of (a) the Maximum Initial Conversion Rate and (b) the quotient (rounded to eight decimal places) of (i) $1,000 and (ii) a percentage of the Qualified IPO Price, calculated as follows:

• If the Qualified IPO occurs prior to June 15, 2017, 90% of the Qualified IPO Price.

• If the Qualified IPO occurs on or after June 15, 2017 but prior to December 15, 2017, 85% of the Qualified IPO Price.

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• If the Qualified IPO occurs on or after December 15, 2017 but prior to December 15, 2018, 75% of the Qualified IPO Price.

• If the Qualified IPO occurs on or after December 15, 2018, 65% of the Qualified IPO Price.

For the avoidance of doubt, upon the completion of the Qualified IPO, the Conversion Rate will continue to be subject to adjustment pursuant to the other provisions of this Article 14.

(g) Notwithstanding this Section 14.05 or any other provision of this Indenture or the Notes, if a Conversion Rate adjustment becomes effective on any Ex-Dividend Date, and a Holder that has converted its Notes on or after such Ex-Dividend Date and on or prior to the related Record Date would be treated as the record holder of the shares of Common Stock as of the related Conversion Date as described under Section 14.03(i) based on an adjusted Conversion Rate for such Ex-Dividend Date, then, notwithstanding the Conversion Rate adjustment provisions in this Section 14.05, the Conversion Rate adjustment relating to such Ex-Dividend Date shall not be made for such converting Holder. Instead, such Holder shall be treated as if such Holder were the record owner of the shares of Common Stock on an unadjusted basis and participate in the related dividend, distribution or other event giving rise to such adjustment.

(h) Except as stated herein, the Company shall not adjust the Conversion Rate for the issuance of shares of the Common Stock or any securities convertible into or exchangeable for shares of the Common Stock or the right to purchase shares of the Common Stock or such convertible or exchangeable securities.

(i) In addition to those adjustments required by clauses (a), (b), (c), (d), (e) and (f) of this Section 14.05, and to the extent permitted by applicable law and subject to the applicable listing standards of the Relevant Stock Exchange on which the Common Stock is then listed or admitted for trading, the Company from time to time may increase the Conversion Rate by any amount for a period of at least 20 Business Days if the Board of Directors determines that such increase would be in the Company’s best interest. In addition, to the extent permitted by applicable law and subject to the applicable listing standards of the Relevant Stock Exchange on which the Common Stock is then listed or admitted for trading, the Company may (but is not required to) increase the Conversion Rate to avoid or diminish any income tax to holders of Common Stock or rights to purchase shares of Common Stock in connection with a dividend or distribution of shares of Common Stock (or rights to acquire shares of Common Stock) or similar event. Whenever the Conversion Rate is increased pursuant to either of the preceding two sentences, the Company shall deliver to the Holder of each Note a notice of the increase at least 15 calendar days prior to the date the increased Conversion Rate takes effect, and such notice shall state the increased Conversion Rate and the period during which it will be in effect.

(j) Notwithstanding anything to the contrary in this Article 14, the Conversion Rate shall not be adjusted:

(i) upon the issuance of any shares of Common Stock pursuant to any present or future plan providing for the reinvestment of dividends or interest payable on the Company’s securities and the investment of additional optional amounts in shares of Common Stock under any plan;

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(ii) upon the issuance of any shares of Common Stock or options or rights to purchase those shares pursuant to any present or future employee, director or consultant benefit plan or program of or assumed by the Company or any of the Company’s Subsidiaries;

(iii) except as set forth in Section 14.05(b) or Section 14.05(c), upon the issuance of any shares of the Common Stock pursuant to any option, warrant, right or exercisable, exchangeable or convertible security not described in clause (ii) of this subsection;

(iv) solely for a change in the par value (or lack of par value) of the Common Stock;

(v) upon the repurchase of any shares of the Common Stock pursuant to an open-market share repurchase program or other buy-back transaction that is not a tender offer or exchange offer of the kind described in Section 14.05(e); or

(vi) for accrued and unpaid interest, if any.

All calculations and other determinations under this Article 14 shall be made by the Company and shall be made to the nearest one-ten thousandth (1/10,000th) of a share.

(k) Notwithstanding anything in this Article 14 to the contrary, the Company shall not be required to adjust the Conversion Rate unless the adjustment would result in a change of at least 1% in the then effective Conversion Rate. However, the Company shall carry forward any adjustments to the Conversion Rate that are less than 1% of the Conversion Rate and make all such carried-forward adjustments (i) when the cumulative net effect of all adjustments not yet made will result in a change of at least 1% of the Conversion Rate or (ii) regardless of whether the adjustment (or such cumulative net effect) is less than 1%, (a) on the Conversion Date for any Notes, (b) upon the occurrence of any Change of Control that occurs prior to the Qualified IPO, (c) upon the occurrence of any Make-Whole Fundamental Change or Fundamental Change that occurs on or after the Qualified IPO or (d) upon the Company’s issuance of any Notice of Redemption.

(l) Whenever the Conversion Rate is adjusted as herein provided, the Company shall promptly file with the Trustee (and the Conversion Agent if not the Trustee) an Officer’s Certificate setting forth the Conversion Rate after such adjustment and setting forth a brief statement of the facts requiring such adjustment. Unless and until a Responsible Officer of the Trustee shall have received such Officer’s Certificate, the Trustee shall not be deemed to have knowledge of any adjustment of the Conversion Rate and may assume without inquiry that the last Conversion Rate of which it has knowledge is still in effect. Promptly after delivery of such certificate, the Company shall prepare a notice of such adjustment of the Conversion Rate setting forth the adjusted Conversion Rate and the date on which each adjustment becomes effective and shall deliver such notice of such adjustment of the Conversion Rate to each Holder. Failure to deliver such notice shall not affect the legality or validity of any such adjustment.

(m) For purposes of this Section 14.05, the number of shares of Common Stock at any time outstanding shall not include shares of Common Stock held in the treasury of the Company so long as the Company does not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company, but shall include shares of Common Stock issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock.

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Section 14.06 Adjustments of Prices. Whenever any provision of this Indenture requires the Company to calculate the Last Reported Sale Prices or the Transaction Price over a span of multiple days (including, if applicable, the period for determining the Stock Price for purposes of a Make-Whole Fundamental Change), the Board of Directors shall make appropriate adjustments (to the extent no corresponding adjustment is otherwise made pursuant to Section 14.05) to each to account for any adjustment to the Conversion Rate that becomes effective, or any event requiring an adjustment to the Conversion Rate where the Ex-Dividend Date, Effective Date, Record Date or expiration date, as the case may be, of the event occurs, at any time during the period when the Last Reported Sale Prices or the Transaction Price are to be calculated.

Section 14.07 Shares to Be Reserved. The Company shall provide, free from preemptive rights, out of its authorized but unissued shares or shares held in treasury, sufficient shares of Common Stock to provide for conversion of the Notes from time to time as such Notes are presented for conversion (assuming that at the time of computation of such number of shares, all such Notes would be converted by a single Holder).

Section 14.08 Effect of Recapitalizations, Reclassifications and Changes of the Common Stock.

(a) Subject to Section 13.02, Section 14.01, Section 15.01, Section 15.02 and Section 15.03, in the case of:

(i) any recapitalization, reclassification or change of the Common Stock (other than changes resulting from a subdivision or combination),

(ii) any consolidation, merger, combination or similar transaction involving the Company,

(iii) any sale, lease or other transfer to a third party of the consolidated assets of the Company and the Company’s Subsidiaries substantially as an entirety, or

(iv) any statutory share exchange,

in each case, as a result of which the Common Stock would be converted into, or exchanged for, stock, other securities, other property or assets (including cash or any combination thereof) (each, a “Specified Corporate Event”), then the Company or the Successor Company, as the case may be, shall execute with the Trustee a supplemental indenture permitted under Section 10.01(n) without the consent of the Holders providing that, at and after the effective time of such Specified Corporate Event, the right to convert each $1,000 principal amount of Notes (or if a PIK Payment has been made, each $1.00 principal amount of Notes) shall be changed into a right to convert such principal amount of Notes into the kind and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof) that a holder of a number of

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shares of Common Stock into which $1,000 (or if a PIK Payment has been made, $1.00) principal amount of the Notes is convertible at the Conversion Rate immediately prior to such Specified Corporate Event (which will be the applicable Change of Control Maximum Conversion Rate if such Specified Corporate Event is also a Change of Control) (or if a PIK Payment has been made, the quotient of (1) the Conversion Rate (which will be the applicable Change of Control Maximum Conversion Rate if such Specified Corporate Event is also a Change of Control) immediately prior to such Specified Corporate Event and (2) 1,000) would have owned or been entitled to receive (the “Reference Property,” with each “unit of Reference Property” meaning the kind and amount of Reference Property that a holder of one share of Common Stock is entitled to receive) upon the occurrence of such Specified Corporate Event.

If the Specified Corporate Event causes the Common Stock to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form of shareholder election), then (i) the Reference Property into which the Notes will be convertible shall be deemed to be (x) the weighted average of the types and amounts of consideration received by the holders of Common Stock that affirmatively make such an election or (y) if no holders of Common Stock affirmatively make such an election, the types and amounts of consideration actually received by the holders of Common Stock, and (ii) the unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred to in clause (i) attributable to one share of Common Stock. If the holders of the Common Stock receive only cash in such Specified Corporate Event, then for all conversions for which the relevant Conversion Date occurs after the effective date of such Specified Corporate Event (A) the consideration due upon conversion of each $1,000 principal amount of Notes (or if a PIK Payment has been made, the consideration due upon conversion of each $1.00 principal amount of Notes) shall be solely cash in an amount equal to (1) if no PIK Payment has been made, the Conversion Rate in effect on the Conversion Date (as may be increased by any Additional Shares pursuant to Section 14.04) or (2) if a PIK Payment has been made, the quotient of (a) the Conversion Rate in effect on the Conversion Date (as may be increased by any Additional Shares pursuant to Section 14.04) and (b) 1,000, in each case, multiplied by the price paid per share of Common Stock in such Specified Corporate Event and ) the Company shall satisfy the Conversion Obligation by paying such cash amount to converting Holders on the third Business Day immediately following the relevant Conversion Date. The Company shall notify Holders, the Trustee and the Conversion Agent (if other than the Trustee) of such weighted average as soon as practicable after such determination is made.

If the Reference Property in respect of any such transaction includes shares of Common Equity, such supplemental indenture described in the second immediately preceding paragraph providing that the Notes will be convertible into reference property shall provide for anti-dilution and other adjustments that shall be as nearly equivalent as practicable to the adjustments provided for in this Article 14. If, in the case of any Specified Corporate Event, the Reference Property includes shares of stock, securities or other property or assets (other than cash and/or cash equivalents) of a Person that is a party to the transaction other than the Company or the Successor Company, as the case may be, in such Specified Corporate Event, then such supplemental indenture shall also be executed by such other Person and shall contain such additional provisions to protect the interests of the Holders of the Notes as the Board of Directors shall reasonably consider necessary by reason of the foregoing, including the provisions providing for the repurchase rights set forth in Article 15.

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(b) When the Company executes a supplemental indenture pursuant to subsection (a) of this Section 14.08, the Company shall promptly file with the Trustee an Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise a unit of Reference Property after any such Specified Corporate Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with and an Opinion of Counsel stating that all conditions precedent to the execution and delivery of such supplemental indenture have been complied with, and shall promptly deliver notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be delivered to each Holder within 20 calendar days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.

(c) None of the foregoing provisions shall affect the right of a Holder to convert its Notes into shares of Common Stock, as set forth in Section 14.01, Section 14.02 and Section 14.03, prior to the effective date of such Specified Corporate Event.

(d) The above provisions of this Section shall similarly apply to successive Specified Corporate Events.

Section 14.09 Certain Covenants.

(a) The Company covenants that all shares of Common Stock issued upon conversion of Notes will be fully paid and non-assessable by the Company and free from all taxes, liens and charges with respect to the issue thereof.

(b) The Company covenants that, if any shares of Common Stock to be provided for the purpose of conversion of Notes hereunder require registration with or approval of any governmental authority under any federal or state law before such shares of Common Stock may be validly issued upon conversion, the Company will, to the extent then permitted by the rules and interpretations of the Commission, secure such registration or approval, as the case may be.

(c) The Company further covenants that if at any time the Common Stock shall be listed on any national securities exchange or automated quotation system the Company will list and keep listed, so long as the Common Stock shall be so listed on such exchange or automated quotation system, any Common Stock issuable upon conversion of the Notes.

Section 14.10 Responsibility of Trustee. The Trustee and any other Conversion Agent shall not at any time be under any duty or responsibility to any Holder to determine the Conversion Rate (or any adjustment thereto) or whether any facts exist that may require any adjustment (including any increase) of the Conversion Rate, or with respect to the nature or extent or calculation of any such adjustment when made, or with respect to the method employed, or herein or in any supplemental indenture provided to be employed, in making the same. The Trustee and any other Conversion Agent shall not be accountable with respect to the validity or value (or the kind or amount) of any shares of Common Stock, or of any securities, property or cash that may at any time be issued or delivered upon the conversion of any Note; and the Trustee and any other Conversion Agent make no representations with respect thereto. Neither the Trustee nor any Conversion Agent shall be responsible for any failure of the Company to issue, transfer or deliver any shares of Common Stock or stock certificates or other securities or property

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or cash upon the surrender of any Note for the purpose of conversion or to comply with any of the duties, responsibilities or covenants of the Company contained herein. Without limiting the generality of the foregoing, neither the Trustee nor any Conversion Agent shall be under any responsibility to determine the correctness of any provisions contained in any supplemental indenture entered into pursuant to Section 14.08 relating either to the kind or amount of shares of stock or securities or property (including cash) receivable by Holders upon the conversion of their Notes after any event referred to in such Section 14.08 or to any adjustment to be made with respect thereto, but, subject to the provisions of Section 7.01, may accept (without any independent investigation) as conclusive evidence of the correctness of any such provisions, and shall be protected in relying upon, the Officer’s Certificate and an Opinion of Counsel (which the Company shall be obligated to file with the Trustee prior to the execution of any such supplemental indenture) with respect thereto. Neither the Trustee nor the Conversion Agent shall be responsible for determining whether any event contemplated by Section 14.01 or 14.02 has occurred that makes the Notes eligible for conversion until the Company has delivered to the Trustee and the Conversion Agent the notices referred to in Section 14.01 or 14.02 or 14.11, as the case may be, with respect to the commencement of such conversion rights, on which notices the Trustee and the Conversion Agent may conclusively rely, and the Company agrees to deliver such notices to the Trustee and the Conversion Agent immediately after the occurrence of any such event or at such other times as shall be provided for in Section 14.01, Section 14.02 and Section 14.11.

Section 14.11 Notice to Holders Prior to Certain Actions. In case of any:

(a) action by the Company or one of its Subsidiaries that would require an adjustment in the Conversion Rate pursuant to Section 14.05 or Section 14.12;

(b) Specified Corporate Event; or

(c) voluntary or involuntary dissolution, liquidation or winding-up of the Company;

then, in each case (unless notice of such event is otherwise required pursuant to another provision of this Indenture) and to the extent applicable, the Company shall cause to be filed with the Trustee and the Conversion Agent (if other than the Trustee) and to be delivered to each Holder, a notice stating the date on which a record is to be taken for the purpose of such action by the Company or one of its Subsidiaries or, if a record is not to be taken, the date as of which the holders of Common Stock of record are to be determined for the purposes of such action by the Company no later than the earlier of the date notice of such date is required to be provided under Rule 10b-17 of the Exchange Act or applicable rules of the Relevant Stock Exchange and such date is publicly announced by the Company. Failure to give such notice, or any defect therein, shall not affect the legality or validity of such action by the Company or one of its Subsidiaries, Specified Corporate Event, dissolution, liquidation or winding-up.

Section 14.12 Shareholder Rights Plans. If the Company has a shareholder rights plan in effect upon conversion of the Notes, each share of Common Stock, if any, issued upon such conversion shall be entitled to receive the appropriate number of rights, if any, and the certificates representing the Common Stock issued upon such conversion shall bear such legends, if any, in each case as may be provided by the terms of any such shareholder rights plan, as the same may

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be amended from time to time. However, if, prior to any conversion of Notes, the rights have separated from the shares of Common Stock in accordance with the provisions of the applicable shareholder rights plan, the Conversion Rate shall be adjusted at the time of separation as if the Company distributed to all or substantially all holders of the Common Stock Distributed Property as provided in Section 14.05(c), subject to readjustment in the event of the expiration, termination or redemption of such rights.

ARTICLE 15

REPURCHASE OF NOTES AT OPTION OF HOLDERS

Section 15.01 Repurchase at the Option of Holders on the Specified Repurchase Date.

(a) If the Qualified IPO has not occurred before December 15, 2018, each Holder will have the right, at such Holder’s option, after such date to require the Company to repurchase for cash all of such Holder’s Notes, or any portion thereof so long as the amount of such Holder’s Notes submitted for repurchase equals $1,000 or an integral multiple of $1,000 (or if a PIK Payment has been made, $1.00 or an integral multiple of $1.00) in excess thereof, on the 90th calendar day (or earlier, if the Company and such Holder agree) (any such date of required repurchase, a “Specified Repurchase Date”) after such Holder has properly delivered and not withdrawn a Specified Repurchase Date Notice, at a repurchase price to be paid in cash in an amount equal to 110% of the principal amount of the Notes being repurchased, plus accrued and unpaid interest, if any, to, but excluding, the Specified Repurchase Date (the “Specified Repurchase Date Price”). If the Specified Repurchase Date Price with respect to a Note for which a Holder has properly delivered and not withdrawn a Specified Repurchase Date Notice is not paid on the related Specified Repurchase Date, interest shall accrue on the principal amount of, and interest on, such Note at an interest rate of 8.00% per year. For the avoidance of doubt, the occurrence of any transaction described in Section 14.08, a result of which the Notes become convertible into shares of common stock that are listed or quoted on any Permitted Exchange or will be listed or quoted on any Permitted Exchange following such transaction, shall not affect any Holder’s right to have the Company repurchase for cash such Holder’s Notes pursuant to this Section 15.01.

(b) On or before November 15, 2018, the Company shall provide to all Holders of Notes, the Trustee, the Paying Agent (in the case of a Paying Agent other than the Trustee) and to beneficial owners of Notes as required by applicable law, a written notice (the “Specified Repurchase Date Right Notice”) of the repurchase right of the Holders that will arise under Section 15.01(a) if the Qualified IPO is not consummated on or before December 15, 2018. The Specified Repurchase Date Right Notice shall:

(i) describe the repurchase right of the Holders under Section 15.01(a) of this Indenture;

(ii) explain that such repurchase right will not arise until after December 15, 2018 and only if the Qualified IPO has not been consummated by such date;

(iii) the Specified Repurchase Date Price;

(iv) the name and address of the Paying Agent; and

(v) the procedures that Holders must follow to require the Company to repurchase their Notes.

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No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 15.01.

At the Company’s written request (with written notice to the Trustee no less than five (5) calendar days (or such shorter period as agreed by the Trustee) prior to the sending of such notice), the Trustee shall give such notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of such Specified Repurchase Date Right Notice shall be prepared by the Company.

Section 15.02 Repurchase at Option of Holders Upon a Fundamental Change on or after the Qualified IPO.

(a) If a Fundamental Change occurs at any time on or after the Qualified IPO and prior to the Maturity Date, each Holder shall have the right, at such Holder’s option, to require the Company to repurchase for cash all of such Holder’s Notes, or any portion of the principal amount thereof that is equal to $1,000 (or if a PIK Payment has been made, $1.00) or an integral multiple thereof, on the date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than 20 Business Days or more than 35 Business Days following the date of the Fundamental Change Company Notice at a repurchase price in cash in an amount equal to 100% of the principal amount thereof, plus accrued and unpaid interest thereon, if any, to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless the Fundamental Change Repurchase Date falls after a Regular Record Date but on or prior to the Interest Payment Date to which such Regular Record Date relates, in which case the Company shall instead pay the full amount of accrued and unpaid interest to Holders of record as of such Regular Record Date, and the Fundamental Change Repurchase Price shall be paid in cash in an amount equal to 100% of the principal amount of Notes to be repurchased pursuant to this Section 15.02.

(b) On or before the 20th calendar day after the occurrence of the effective date of a Fundamental Change, the Company shall provide to all Holders of Notes, the Trustee and the Conversion Agent (if other than the Trustee) and the Paying Agent (in the case of a Paying Agent other than the Trustee) a notice (the “Fundamental Change Company Notice”) of the occurrence of the Fundamental Change and of the repurchase right at the option of the Holders arising as a result thereof. In the case of Physical Notes, such notice shall be by first class mail or, in the case of Global Notes, such notice shall be delivered in accordance with the applicable procedures of the Depositary. Each Fundamental Change Company Notice shall specify:

(i) the events causing the Fundamental Change;

(ii) the date of the Fundamental Change;

(iii) the last date on which a Holder may exercise the repurchase right pursuant to this Article 15;

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(iv) the Fundamental Change Repurchase Price;

(v) the Fundamental Change Repurchase Date;

(vi) the name and address of the Paying Agent and the Conversion Agent, if applicable;

(vii) if applicable, the Conversion Rate and any adjustments to the Conversion Rate;

(viii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture; and

(ix) the procedures that Holders must follow to require the Company to repurchase their Notes.

No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 15.02.

At the Company’s written request delivered at least five (5) Business Days (or such shorter time as the Trustee may agree) prior to the date of the sending of such notice, the Trustee shall give such notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the Company.

Simultaneously with providing such notice, the Company shall publish the information on the Company’s website or through such other public medium as the Company may use at that time.

Section 15.03 Repurchase at Option of Holders Upon a Change of Control Prior to the Qualified IPO.

(a) If a Change of Control occurs at any time prior to the Qualified IPO, each Holder shall have the right, at such Holder’s option, to require the Company to repurchase for cash all of such Holder’s Notes, or any portion of the principal amount thereof that is equal to $1,000 (or if a PIK Payment has been made, $1.00) or an integral multiple thereof, on the date (the “Change of Control Repurchase Date”) that is the later of the Change of Control Effective Date and the 10th Business Day after such Holder receives the Change of Control Company Notice at a repurchase price in cash in an amount equal to 100% of the principal amount thereof, plus accrued and unpaid interest thereon, if any, to, but excluding, the Change of Control Repurchase Date (the “Change of Control Repurchase Price”), unless the Change of Control Repurchase Date falls after a Regular Record Date but on or prior to the Interest Payment Date to which such Regular Record Date relates, in which case the Company shall instead pay the full amount of accrued and unpaid interest to Holders of record as of such Regular Record Date, and the Change of Control Repurchase Price shall be paid in cash in an amount equal to 100% of the principal amount of

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Notes to be repurchased pursuant to this Section 15.03; provided that in the event such Change of Control is a Change of Control Redemption Right Event, (i) the right of each Holder to elect to require the Company to repurchase such Holder’s Notes pursuant to this Section 15.03 shall continue until the later of (A) the applicable Change of Control Effective Date and (B) the 10th Business Day after Holders receive the Change of Control Redemption Notice, and (ii) the Change of Control Repurchase Date shall be the later of the applicable Change of Control Effective Date and the 10th Business Day after such Holder receives the Change of Control Redemption Notice, if such Holder elects to require the Company to effect a repurchase pursuant to this Section 15.03; provided further that the Company may postpone the Change of Control Repurchase Date by one (1) Business Day if such Holder’s written election to require the Company to effect a repurchase pursuant to this Section 15.03 is made less than one Business Day before such Change of Control Repurchase Date without giving effect to such postponement.

(b) On or before the second Business Day after the effectiveness of a Change of Control prior to the Qualified IPO, the Company shall provide to all Holders of Notes, the Trustee and the Conversion Agent (if other than the Trustee) and the Paying Agent (in the case of a Paying Agent other than the Trustee) a notice (the “Change of Control Company Notice”) of the occurrence of the Change of Control and of the repurchase right at the option of the Holders arising as a result thereof. In the case of Physical Notes, such notice shall be by first class mail or, in the case of Global Notes, such notice shall be delivered in accordance with the applicable procedures of the Depositary. Each Change of Control Company Notice shall specify:

(i) the events causing the Change of Control;

(ii) the date of the Change of Control;

(iii) the last date on which a Holder may exercise the repurchase right pursuant to this Article 15;

(iv) the Change of Control Repurchase Price;

(v) the Change of Control Repurchase Date;

(vi) whether or not the Change of Control constitutes a Change of Control Redemption Right Event affording the Company a redemption right pursuant to Section 13.02;

(vii) the name and address of the Paying Agent and the Conversion Agent, if applicable;

(viii) the Change of Control Conversion Rate and the date until which Holders may convert their Notes pursuant to Section 14.01;

(ix) the Transaction Price Notice;

(x) that the Notes with respect to which a Change of Control Repurchase Notice has been delivered by a Holder may be converted only if the Holder withdraws the Change of Control Repurchase Notice in accordance with the terms of this Indenture; and

(xi) the procedures that Holders must follow to require the Company to repurchase their Notes.

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No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 15.02.

At the Company’s written request delivered at least five (5) Business Days (or such shorter time as the Trustee may agree) prior to the date of the sending of such notice, the Trustee shall give such notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of such Change of Control Company Notice shall be prepared by the Company.

Simultaneously with providing such notice, the Company shall publish the information on the Company’s website or through such other public medium as the Company may use at that time.

Section 15.04 Withdrawal of Fundamental Change Repurchase Notice, Specified Repurchase Date Notice or Change of Control Repurchase Notice. (a) Holders of Physical Notes may withdraw (in whole or in part) a Fundamental Change Repurchase Notice, a Specified Repurchase Date Notice or Change of Control Repurchase Notice by means of a written notice of withdrawal delivered to the Corporate Trust Office of the Paying Agent in accordance with this Section 15.04 at any time prior to the Fundamental Change Repurchase Expiration Time, the close of business on the Business Day immediately preceding the Specified Repurchase Date that relates to such Specified Repurchase Date Notice, or the Change of Control Repurchase Expiration Time, as applicable, specifying:

(i) the principal amount of the Notes with respect to which such notice of withdrawal is being submitted,

(ii) if Physical Notes have been issued, the certificate number(s) of the Note(s) in respect of which such notice of withdrawal is being submitted, and

(iii) the principal amount, if any, of such Note that remains subject to the original Fundamental Change Repurchase Notice, Specified Repurchase Date Notice or the Change of Control Repurchase Notice, as the case may be, which portion must be in principal amounts of $1,000 (or if a PIK Payment has been made, $1.00) or an integral multiple thereof;

If the Notes are Global Notes, Holders must withdraw the Notes they have elected to require the Company to repurchase in accordance with appropriate procedures of the Depositary.

Section 15.05 Deposit of Fundamental Change Repurchase Price, Specified Repurchase Date Price and Change of Control Repurchase Price.

(a) The Company will deposit with the Trustee (or other Paying Agent appointed by the Company, or if the Company is acting as its own Paying Agent, set aside, segregate and hold in trust as provided in Section 4.04(a)) on or prior to 11:00 a.m., New York City time, on the

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Fundamental Change Repurchase Date, Specified Repurchase Date or Change of Control Repurchase Date, as applicable, an amount of money sufficient to repurchase all of the Notes to be repurchased at the appropriate Fundamental Change Repurchase Price, Specified Repurchase Date Price or Change of Control Repurchase Price, as applicable. Subject to receipt of funds and/or Notes by the Trustee (or other Paying Agent appointed by the Company), payment for Notes surrendered for repurchase (and not validly withdrawn in accordance with Section 15.04) will be made on the later of (i) the Specified Repurchase Date (provided the Holder has satisfied the conditions in Section 15.01), the Fundamental Change Repurchase Date (provided the Holder has satisfied the conditions in Section 15.02) or the Change of Control Repurchase Date (provided the Holder has satisfied the conditions in Section 15.03), as applicable, and (ii) the delivery of such Notes to the Trustee (or other Paying Agent appointed by the Company) by the Holder thereof or the time of book-entry transfer, in the manner required by Section 15.07 by mailing checks for the amount payable to the Holders of such Notes entitled thereto as they shall appear in the Note Register; provided, however, that payments to the Depositary shall be made by wire transfer of immediately available funds to the account of the Depositary or its nominee. The Trustee shall, promptly after such payment and upon written demand by the Company, return to the Company any funds in excess of the Fundamental Change Repurchase Price, the Specified Repurchase Date Price or Change of Control Repurchase Price, as applicable.

(b) If by 11:00 a.m. New York City time, on the Fundamental Change Repurchase Date, the Specified Repurchase Date or Change of Control Repurchase Date, as applicable, the Trustee (or other Paying Agent appointed by the Company) holds money sufficient to make payment on all the Notes or portions thereof that are to be repurchased on such Fundamental Change Repurchase Date, such Specified Repurchase Date or such Change of Control Repurchase Date, as applicable, then, with respect to the Notes that have been properly surrendered for repurchase and not validly withdrawn in accordance with Section 15.04, (i) such Notes will cease to be outstanding, (ii) interest will cease to accrue on such Notes (whether or not book-entry transfer of the Notes has been made or the Notes have been delivered to the Trustee or Paying Agent) and (iii) all other rights of the Holders of such Notes will terminate (other than the right to receive the Fundamental Change Repurchase Price, the Specified Repurchase Date Price and the Change of Control Repurchase Price (and default interest specified in this Indenture on overdue amounts, if any), as the case may be, and, if the Fundamental Change Repurchase Date, the Specified Repurchase Date or Change of Control Repurchase Date falls after a Regular Record Date but on or prior to the related Interest Payment Date, the right of the Holder of record on such Regular Record Date to receive the related interest payment).

(c) Upon surrender of a Physical Note that is to be repurchased in part pursuant to Section 15.01, Section 15.02 or Section 15.03, the Company shall execute and the Trustee shall authenticate and deliver to the Holder a new Note in an authorized denomination equal in principal amount to the unrepurchased portion of the Note surrendered.

Section 15.06 Covenant to Comply with Applicable Laws Upon Repurchase of Notes. In connection with any repurchase offer pursuant to a Fundamental Change Repurchase Company Notice, a Specified Repurchase Date Right Notice or Change of Control Repurchase Company Notice, as applicable, the Company will, if required:

(a) comply with any tender offer rules under the Exchange Act that may then be applicable;

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(b) file a Schedule TO or any other required schedule under the Exchange Act; and

(c) otherwise comply with all federal and state securities laws in connection with any offer by the Company to repurchase the Notes;

in each case, so as to permit the rights and obligations under this Article 15 to be exercised in the time and in the manner specified in this Article 15; provided that to the extent that the provisions of any securities laws or regulations conflict with the provisions of this Indenture relating to the Company’s obligations to purchase the Notes upon a Fundamental Change, on a Specified Repurchase Date or upon a Change of Control, the Company shall comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under such provisions of this Indenture by virtue of such conflict.

Section 15.07 Repurchase Procedures.

(a) Repurchases of Notes under Sections 15.01, 15.02 and 15.03, as applicable, shall be made, at the option of the Holder thereof, upon:

(i) delivery to the Paying Agent by a Holder of (x) a duly completed notice substantially in the form of the Form of Specified Repurchase Date Notice (the “Specified Repurchase Date Notice”), (y) a duly completed notice substantially in the form of the Form of Fundamental Change Repurchase Notice (the “Fundamental Change Repurchase Notice”) or (z) a duly completed notice substantially in the form of the Form of Change of Control Repurchase Notice (the “Change of Control Repurchase Notice”), if the Notes are Physical Notes, or in compliance with the Depositary’s procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case, on or before the close of business on the Business Day immediately preceding (x) with respect to a repurchase pursuant to Section 15.01, the consummation of the Qualified IPO, (y) with respect to a repurchase pursuant to Section 15.02, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Expiration Time”) or (z) with respect to a repurchase pursuant to Section 15.03, the Change of Control Repurchase Date (the “Change of Control Repurchase Expiration Time”), as applicable; and

(ii) delivery of the Notes, with respect to a repurchase pursuant to Section 15.01, prior to the close of business on the Business Day immediately preceding the Qualified IPO, with respect to a repurchase pursuant to Section 15.02, prior to the Fundamental Change Repurchase Expiration Time or, with respect to a repurchase pursuant to Section 15.03, prior to the Change of Control Repurchase Expiration Time, as applicable, (x) if the Notes are Physical Notes, by physical delivery to the Paying Agent at any time after delivery of the Specified Repurchase Date Notice, the Fundamental Change Repurchase Notice or the Change of Control Repurchase Notice, as the case may be, (together with all necessary endorsements for transfer) at the Corporate Trust Office of the Paying Agent, or (y) if the Notes are Global Notes, by book-entry transfer of the Notes in compliance with the procedures of the Depositary, in each case such delivery being a

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condition to receipt by the Holder of the Specified Repurchase Date Price, the Fundamental Change Repurchase Price or the Change of Control Repurchase Price, as applicable, therefor.

(b) The Fundamental Change Repurchase Notice, the Specified Repurchase Date Notice or the Change of Control Repurchase Notice, as applicable, in respect of any Notes to be repurchased shall state:

(i) in the case of Physical Notes, the certificate numbers of the Notes to be delivered for repurchase;

(ii) the portion of the principal amount of Notes to be repurchased, which must be $1,000 (or if a PIK Payment has been made, $1.00) or an integral multiple thereof; and

(iii) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this Indenture.

If the Notes are Global Notes, Holders must tender their Notes in accordance with appropriate Depositary procedures.

(c) Notwithstanding anything herein to the contrary, any Holder electing to require the Company to repurchase for cash all of such Holder’s Notes, or any portion of the principal amount thereof, as contemplated by this Article 15, shall have the right to withdraw, in whole or in part, such notice at any time prior to, with respect to a repurchase pursuant to Section 15.01, the close of business on the Business Day immediately preceding the related Specified Repurchase Date, with respect to a repurchase pursuant to Section 15.02, the Fundamental Change Repurchase Expiration Time or, with respect to a purchase pursuant to Section 15.03, the Change of Control Repurchase Expiration Time, by delivery of a written notice of withdrawal to the Paying Agent in accordance with Section 15.04 hereof, in the case of Physical Notes, and in accordance with appropriate Depositary procedures, in the case of Global Notes.

(d) The Paying Agent shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice, Specified Repurchase Date Notice, Change of Control Repurchase Notice or notice of withdrawal thereof.

(e) Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at the option of the Holders upon a Fundamental Change, Change of Control or on the Specified Repurchase Date, as applicable, if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price, Change of Control Repurchase Price or Specified Repurchase Date Price, as the case may be, with respect to such Notes). The Paying Agent will promptly return to the respective Holders thereof any Physical Notes held by it during the acceleration of the Notes (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price, Change of Control Repurchase Price or Specified Repurchase Date Price, as the case may be, with respect to such Notes), or any instructions for book-entry transfer of the Notes in compliance with the procedures of the Depositary shall be deemed to have been cancelled, and, upon such return or cancellation,

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as the case may be, the Fundamental Change Repurchase Notice, Change of Control Repurchase Price or Specified Repurchase Date Notice with respect thereto shall be deemed to have been withdrawn.

ARTICLE 16

GUARANTEES

Section 16.01 Note Guarantees. Subject to the limitations set forth in Section 16.05, the Guarantors hereby, jointly and severally, unconditionally and irrevocably Guarantee, as primary obligor and not merely as surety, to each Holder, the Trustee, the Collateral Agent and their respective successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the Obligations of the Company hereunder or thereunder, that: (a) the principal of and premium, if any, and interest, if any, on the Notes (including interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceedings), shall be promptly paid in full when due, whether at Stated Maturity, by acceleration, redemption, required purchase or repurchase or otherwise, and interest on the overdue principal of and interest on premium, if any, and interest, if any, if lawful, and all other obligations of the Company to the Holders, the Trustee and the Collateral Agent hereunder or thereunder shall be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration, redemption, required purchase or repurchase or otherwise. Failing payment when due, subject to any applicable grace period, of any amount so Guaranteed or any performance so Guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, legality, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder with respect to any provisions hereof or thereof, the recovery of any judgment against the Company or any Guarantor, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a Guarantor. Each Guarantor hereby waives, to the fullest extent permitted by applicable law, diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company or another Guarantor, protest, notice and all demands whatsoever and covenant that the Note Guarantees shall not be discharged except by payment in full or conversion in full of the Notes in accordance with this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company or any of the Guarantors, or any receiver, trustee, assignee, liquidator or similar official under any Bankruptcy Law or other similar official acting in relation to either the Company or any of the Guarantors, any amount paid either to the Trustee or to such Holder, the Note Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations Guaranteed hereby until payment in full of all obligations Guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations Guaranteed hereby may be accelerated as provided in Article 6 for the purposes of the Note Guarantees, notwithstanding any stay, injunction or other prohibition preventing such acceleration

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in respect of the obligations Guaranteed hereby and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of the Note Guarantees. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Trustee or the Holders under the Note Guarantees.

Section 16.02 Execution and Delivery of Note Guarantee. Each Guarantor hereby agrees that its execution and delivery of this Indenture or, if applicable, any supplemental indenture substantially in the form of Exhibit C shall evidence its Note Guarantee set forth in Section 16.01 without the need for notation on the Notes.

Section 16.03 Guarantors may Consolidate, etc., on Certain Terms. Except as otherwise provided in Section 16.04, no Guarantor (other than a Guarantor whose Note Guarantee is to be released in accordance with Section 16.04) may sell, convey, assign, transfer, lease or otherwise dispose of all or substantially all of its assets, in one transaction or any series of transactions to, or consolidate with or merge with or into (whether or not such Guarantor is the surviving Person) another Person unless:

(a) the Successor Company shall be a corporation organized and existing under the laws of the United States of America, any State thereof or the District of Columbia;

(b) immediately after giving effect to that transaction, no Default or Event of Default shall have occurred and be continuing under this Indenture;

(c) the Person acquiring the property in any such sale or disposition or the Person formed by or surviving any such consolidation or merger (if other than the Guarantor) unconditionally assumes all the Obligations of that Guarantor under its Note Guarantee and the Indenture Documents pursuant to a supplemental indenture and applicable Security Documents in form satisfactory to the Trustee and/or the Collateral Agent; and

(d) in any transaction where such Guarantor is not the surviving or transferee Person, the Company, the Successor Company or the transferee Person, as applicable, shall have delivered to the Trustee and the Collateral Agent an Officer’s Certificate and Opinion of Counsel, each stating that the consolidation, merger, sale, conveyance, assignment, transfer, lease or other disposition and such supplemental indenture complies with this Indenture and all conditions precedent provided for in this Indenture relating to such transaction have been complied with.

For purposes of this Section 16.03, the sale, conveyance, transfer or lease of all or substantially all of the properties and assets of one or more Subsidiaries of a Guarantor to another Person that is not such Guarantor or a Subsidiary of such Guarantor, which properties and assets, if held by such Guarantor instead of such Subsidiaries, would constitute all or substantially all of the consolidated properties and assets of such Guarantor and its Subsidiaries, taken as a whole, shall be deemed to be the sale, conveyance, transfer or lease by such Guarantor of all or substantially all of its consolidated properties and assets to another Person.

In case of any such consolidation, merger, sale or conveyance and, if required by this Indenture, upon the assumption by the successor Person, by supplemental indenture, executed and

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delivered to the Trustee and satisfactory in form to the Trustee, of the Note Guarantee and the due and punctual performance of all of the covenants and conditions of this Indenture to be performed by the Guarantor, such successor Person will succeed to and be substituted for such Guarantor with the same effect as if it had been named herein as a Guarantor. All the Note Guarantees so evidenced will in all respects have the same legal rank and benefit under this Indenture as the Note Guarantees theretofore and thereafter executed in accordance with the terms of this Indenture as though all of such Note Guarantees had been executed at the Issue Date.

Except as set forth in Articles 4 and 11, and notwithstanding Section 16.03(b), nothing contained in this Indenture or in any of the Notes will prevent any consolidation or merger of a Guarantor with or into the Company or another Guarantor, or will prevent any sale or conveyance of the property of a Guarantor as an entirety or substantially as an entirety to the Company or another Guarantor.

Section 16.04 Release of Note Guarantees. In the event of:

(a) the satisfaction and discharge of this Indenture in accordance with Article 3;

(b) a sale, disposition or other transfer of all or a portion of the Capital Stock of a Guarantor, including by way of merger, consolidation, amalgamation or otherwise, to a Person that is not (either before or after giving effect to such transaction) the Company or a Guarantor; or

(c) the liquidation or dissolution of any Guarantor,

such Guarantor (and any of its Subsidiaries that are Guarantors) shall be automatically and unconditionally released and relieved of any obligations under its Note Guarantee and the Indenture Documents. In the event that any Guarantor is not required to remain as a Guarantor for the Company to be in compliance with its obligations under Section 4.13 (treating for this purpose such release as an Investment) and Section 4.14 (on a pro forma basis to give effect to such release), such Guarantor shall be released upon delivery by the Company of an Officer’s Certificate to the Trustee to that effect. Upon delivery by the Company to the Trustee and the Collateral Agent of an Officer’s Certificate and an Opinion of Counsel to the effect that such satisfaction and discharge or such sale or other disposition, transfer (including by way of merger, consolidation, amalgamation or otherwise), liquidation or dissolution (in each case, to the extent applicable) permitted by this Indenture has occurred, or such Guarantor is not required to remain as a Guarantor for the Company to be in compliance with its obligations under Section 4.13 (treating for this purpose such release as an Investment) and Section 4.14 (on a pro forma basis to give effect to such release), the Trustee or the Collateral Agent, as applicable, shall execute any documents reasonably requested by the Company in order to evidence the release of any Guarantor from its obligations under its Note Guarantee and the Indenture Documents.

Any Guarantor not released from its obligations under its Note Guarantee shall remain liable for the full amount of principal of, premium, if any, and interest, if any, on the Notes and for the other obligations of any Guarantor under the Indenture Documents as provided in this Article 16.

Section 16.05 Limitation on Guarantor Liability. For purposes hereof, each Guarantor’s liability shall be that amount from time to time equal to the aggregate liability of such Guarantor

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under its Note Guarantee, but shall be limited to the lesser of (a) the aggregate amount of the Obligations of the Company under the Indenture Documents and (b) the amount, if any, which would not have (A) rendered such Guarantor “insolvent” (as such term is defined in the federal Bankruptcy Law and in the Debtor and Creditor Law of the State of New York), (B) left it with unreasonably small capital at the time its Note Guarantee was entered into, or at the time such Guarantor incurred liability thereunder, after giving effect to the incurrence of existing Indebtedness immediately prior to such time or (C) left such Guarantor with debts beyond such Guarantor’s ability to pay as such debts mature; provided that, it shall be a presumption in any lawsuit or other proceeding in which such Guarantor is a party that the amount Guaranteed pursuant to its Note Guarantee is the amount set forth in subsection (a) above unless any creditor, or representative of creditors of such Guarantor, or debtor in possession or trustee in bankruptcy of such Guarantor, otherwise proves in such a lawsuit or other proceeding that the aggregate liability of such Guarantor is limited to the amount set forth in subsection (b) above. In making any determination as to the solvency or sufficiency of capital of a Guarantor in accordance with the previous sentence, the right of such Guarantor to contribution from other Guarantors and any other rights such Guarantor may have, contractual or otherwise, shall be taken into account.

Section 16.06 “Trustee” to Include Paying Agent. In case at any time any Paying Agent other than the Trustee shall have been appointed by the Company and be then acting hereunder, the term “Trustee” as used in this Article 16 shall in such case (unless the context shall otherwise require) be construed as extending to and including such Paying Agent within its meaning as fully and for all intents and purposes as if such Paying Agent were named in this Article 16 in place of the Trustee.

ARTICLE 17

COLLATERAL AND SECURITY

Section 17.01 Security Documents. The due and punctual payment of the principal of, premium, if any, and interest on the Notes and amounts due hereunder and under the Note Guarantees when and as the same shall be due and payable, subject to any applicable grace period, whether on an interest payment date, by acceleration, purchase, repurchase, redemption or otherwise, and interest on the overdue principal of, premium, if any, and interest on the Notes and the performance of all other Obligations of the Company and the Guarantors to the Holders, the Collateral Agent or the Trustee under the Indenture Documents shall be secured by the Security Documents. The Security Documents shall provide for the grant by the Company and the Guarantors party thereto to the Collateral Agent of security interests in the Collateral subject to Permitted Liens and the terms of the Intercreditor Agreement.

Section 17.02 Recording and Opinions.

(a) The Company shall, and shall cause each of the Guarantors to, at its sole cost and expense, take or cause to be taken such actions as may be required by the Security Documents, to perfect, maintain (with the priority required under the Security Documents), preserve and protect the valid and enforceable, perfected (except as expressly provided herein or therein) security interests in and on all the Collateral granted by the Security Documents in favor of the Collateral Agent for the benefit of the Holders as security for the Obligations contained in this Indenture, the Notes, any Note Guarantees and the Security Documents, superior to and prior to the rights of all

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third Persons (other than Permitted Priority Liens, third Persons holding Liens securing Pari Passu Obligations and as set forth in the Intercreditor Agreement), and subject to no other Liens (other than Permitted Liens); provided that, notwithstanding anything to the contrary under this Indenture, the Security Agreement or any Indenture Document, the Company and the Guarantors shall not be required (A) to perfect the Security Interests and/or Liens granted by the Security Documents by any means other than by (1) filings pursuant to the Uniform Commercial Code in the office of the secretary of state (or similar filing office) of the jurisdiction of incorporation or formation of the Company or such Guarantor, (2) filings in United States government offices with respect to registered and applied for United States Intellectual Property owned by the Company or any Guarantor, (3) delivery to the Collateral Agent to be held in its possession of all Collateral consisting of certificated securities, Chattel Paper, promissory notes or Instruments as required by the Security Agreement, (4) if, as of the last day of any fiscal quarter of the Company, after taking into account any pledge of Available Eligible Assets pursuant to Section 4.14 of the Indenture, the Collateral Value does not equal or exceed the Threshold Amount as of such date, entry into Deposit Account Control Agreements (as defined in the Security Agreement) and securities account control agreements (other than with respect to Excluded Deposit Accounts (as defined in the Security Agreement)) in accordance with Section 4.09 of the Security Agreement, and (5) entry into the Mortgages contemplated by Section 4.16 of this Indenture, (B) to perfect the security interest granted under the Security Documents in Letter-of-Credit Rights (as defined in the Security Agreement) other than pursuant to the filings under the Uniform Commercial Code and (C) to complete any filings or other action with respect to the perfection of the security interests, including of any Intellectual Property, created under the Security Documents in any jurisdiction outside of the United States other than the use of commercially reasonable efforts to obtain a perfected security interest in respect of any Capital Stock of a Material Pledged Foreign Subsidiary constituting Collateral in the jurisdiction of formation of such Material Pledged Foreign Subsidiary in accordance with Section 4.10 of the Security Agreement. The Company shall from time to time promptly pay all financing and continuation statement recording and/or filing fees, charges and recording and similar taxes relating to this Indenture, the Security Documents and any amendments hereto or thereto and any other instruments of further assurance required pursuant hereto or thereto.

(b) The Company shall furnish to the Collateral Agent, at such times as would be required by Section 314(b) of the Trust Indenture Act if this Indenture were qualified thereunder, commencing December 15, 2016, an Opinion of Counsel to the effect that, either (i) other than actions that have been taken, no further action was necessary to maintain the perfection of the security interest in the Collateral described in both the applicable UCC-1 financing statement and the Security Agreement and for which perfection under the UCC of the Company’s or applicable Guarantor’s jurisdiction of organization may occur by the filing of a UCC-1 financing statement with the appropriate filing office of the applicable party’s jurisdiction of organization or (ii) if any actions are so required to be taken, to specify such actions.

(c) The Company will deliver to the Trustee copies of all documents delivered to the Collateral Agent pursuant to the Security Documents, and the Company will, and will cause each Guarantor to, do or cause to be done all such acts and things as may be required by the provisions of the Security Documents to assure and confirm to the Trustee that the Collateral Agent holds for the benefit of the Trustee and the Holders duly created, enforceable and perfected Liens to the extent required by this Indenture and the Security Documents, as from time to time constituted.

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Section 17.03 Release of Collateral.

(a) Subject to the Intercreditor Agreement, the Liens of the Collateral Agent created by the Security Documents shall not at any time be released on all or any portion of the Collateral from the Liens created by the Security Documents unless such release is in accordance with the provisions of this Indenture and the applicable Security Documents.

(b) The release of any Collateral from the Liens created by the Security Documents shall not be deemed to impair the security under this Indenture in contravention of the provisions hereof if and to the extent the Collateral is released pursuant to this Indenture, the Security Documents and the Intercreditor Agreement. The Company and the Guarantors shall not be required to comply with Section 314(d) of the Trust Indenture Act in connection with any release of Collateral. For the avoidance of doubt, the automatic release of any current assets constituting Collateral in connection with the sale, lease or other similar disposition of such inventory of the Company and the Guarantors in the ordinary course of business shall not require delivery of any reports, certificates, opinions or other formal documentation.

Section 17.04 Specified Releases of Collateral.

(a) Collateral shall be released from the Liens created by the Security Documents at any time or from time to time in accordance with the provisions of the Security Documents and the Intercreditor Agreement or as provided in this Indenture. The Liens securing the Collateral shall be automatically released without the need for further action by any Person under any one or more of the following circumstances:

(i) in part, as to any property that is sold, transferred, disbursed or otherwise disposed of by the Company or any Guarantor (other than to the Company or any Guarantor) in a transaction not prohibited by this Indenture at the time of such sale, transfer, disbursement or disposition;

(ii) in whole or in part, with the consent of the Holders of the requisite percentage of Notes in accordance with the provisions in Section 10.02;

(iii) in whole with respect to the Collateral of any Guarantor, upon the release of the Note Guarantee of such Guarantor in accordance with this Indenture;

(iv) in whole or in part, as applicable, as to all or any portion of the Collateral which has been taken by eminent domain, condemnation or similar circumstances;

(v) upon the request of the Company pursuant to an Officer’s Certificate at any time following the consummation of a Qualified IPO, all Intellectual Property constituting Collateral; and

(vi) in part, in accordance with the applicable provisions of the Security Documents.

(b) Upon the request of the Company pursuant to an Officer’s Certificate and Opinion of Counsel confirming that all conditions precedent hereunder and under the Security Documents,

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if any, have been met, and any instruments of termination, satisfaction or release prepared by the Company or the Guarantors, as the case may be, the Collateral Agent, without the consent of any Holder or the Trustee and at the expense of the Company or the Guarantors, shall execute, deliver or acknowledge such instruments or releases (in form reasonably satisfactory to the Collateral Agent) reasonably requested by the Company in order to evidence the release from the Liens created by the Security Documents of any Collateral permitted to be released pursuant to this Indenture, the Security Documents or the Intercreditor Agreement, any such release to be made without any recourse, representation or warranty of the Collateral Agent.

Section 17.05 Release upon Satisfaction and Discharge or Amendment.

(a) The Liens on all Collateral that secure the Notes and the Note Guarantees shall be automatically terminated and released without the need for further action by any Person:

(i) upon the full and final payment and performance of the Company’s and the Guarantors’ respective Obligations under this Indenture, the Notes and the Note Guarantees (other than contingent obligations that have yet to accrue);

(ii) upon satisfaction and discharge of this Indenture as described under Section 3.01; or

(iii) with the written consent of at least 66-2/3% in aggregate principal amount of the outstanding Notes.

(b) Upon the request of the Company contained in an Officer’s Certificate and Opinion of Counsel confirming that all conditions precedent hereunder and under the Security Documents have been met, any instruments of termination, satisfaction or release prepared by the Company or the Guarantors, as the case may be, the Collateral Agent, without the consent of any Holder or the Trustee and at the expense of the Company or the Guarantors, shall execute, deliver or acknowledge such instruments or releases to evidence the release from the Liens created by the Security Documents of any Collateral permitted to be released pursuant to this Indenture, or the Security Documents, any such release to be made without any recourse, representation or warranty of the Collateral Agent and to be in a form reasonably acceptable to the Collateral Agent.

Section 17.06 Form and Sufficiency of Release and Subordination. In the event that the Company or any Guarantor has sold, exchanged, or otherwise disposed of or proposes to sell, exchange or otherwise dispose of any portion of the Collateral that may be sold, exchanged or otherwise disposed of by the Company or such Guarantor to any Person other than the Company or a Guarantor, and the Company or such Guarantor requests, pursuant to an Officer’s Certificate and Opinion of Counsel confirming that all conditions precedent hereunder and under the Security Documents to the release of such Collateral have been met, that (a) the Trustee or Collateral Agent furnish a written disclaimer, release or quit-claim of any interest in such property under this Indenture and the Security Documents, or, (b) to the extent applicable to such Collateral, take all action that is necessary or reasonably requested by the Company in writing (in each case at the expense of the Company) to release and reconvey to the Company or such Guarantor, without recourse, such Collateral or deliver such Collateral in its possession to the Company or such

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Guarantor, the Trustee and the Collateral Agent, as applicable, shall execute, acknowledge (without any recourse, representation and warranty) and deliver to the Company or such Guarantor (in the form prepared by the Company at the Company’s sole expense) such an instrument (in form reasonably satisfactory to the Collateral Agent) promptly or take such other action so requested after satisfaction of the conditions set forth herein for delivery of any such release.

Section 17.07 Purchaser Protected. No purchaser or grantee of any property or rights purported to have been released from the Lien of this Indenture or of the Security Documents shall be bound to ascertain the authority of the Trustee or the Collateral Agent, as applicable, to execute the release or to inquire as to the existence of any conditions herein prescribed for the exercise of such authority; nor shall any purchaser or grantee of any property or rights permitted by this Indenture to be sold or otherwise disposed of by the Company be under any obligation to ascertain or inquire into the authority of the Company to make such sale or other disposition.

Section 17.08 Authorization of Actions to be Taken by the Collateral Agent Under the Security Documents. (a) Subject to the provisions of the applicable Security Documents, each Holder, by acceptance of the Notes, appoints U.S. Bank National Association as Collateral Agent consents to the terms of and agrees that the Collateral Agent shall, and the Collateral Agent is hereby authorized and directed to, execute and deliver the Security Documents to which it is a party and all agreements, documents and instruments incidental thereto, binding the Holders to the terms thereof, and act in accordance with the terms thereof. For the avoidance of doubt, the Collateral Agent shall have no discretion under this Indenture, the Intercreditor Agreement or the Security Documents and whenever reference is made in this Indenture to any action by, consent, designation, specification, requirement or approval of, notice, request or other communication from, or other direction given or action to be undertaken or to be (or not to be) suffered or omitted by the Collateral Agent or to any election, decision, opinion, acceptance, use of judgment, expression or satisfaction or other exercise of discretion, rights or remedies to be made (or not to be made) by the Collateral Agent, it is understood in all cases that the Collateral Agent shall not be required to make or give and shall be fully protected in not making or giving any determination, consent, approval, request or direction without the written direction of the Holders of the Minimum Principal Amount of the then outstanding Notes, the Trustee or the Company, as applicable. This provision is intended solely for the benefit of the Collateral Agent and its successors and permitted assigns and is not intended to and will not entitle the other parties hereto to any defense, claim or counterclaim, or confer any rights or benefits on any party hereto. Further, the Collateral Agent shall be under no obligation to exercise any of its rights and powers under this Indenture at the request or direction of any Holders, unless such Holder shall have offered to the Collateral Agent security and indemnity satisfactory to the Collateral Agent against any loss, cost, liability or expense which might be incurred by the Collateral Agent in compliance with such direction or request and then only to the extent required by the terms of this Indenture.

(b) No provision of the Indenture Documents shall require the Collateral Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of Holders or the Trustee if it shall have reasonable grounds for believing that repayment of such funds is not assured to it. Notwithstanding anything to the contrary contained in the Indenture Documents, in the event the Collateral Agent is entitled

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or required to commence an action to foreclose or otherwise exercise its remedies to acquire control or possession of the Collateral, the Collateral Agent shall not be required to commence any such action or exercise any remedy or take any such other action if the Collateral Agent has determined that the Collateral Agent may incur personal liability as a result of the presence at, or release on or from, the Collateral or such property, of any hazardous substances unless the Collateral Agent has received security or indemnity from the Holders in an amount and in a form satisfactory to the Collateral Agent in its sole discretion, protecting the Collateral Agent from all such liability. The Collateral Agent shall at any time be entitled to cease taking any action described in this clause if it no longer reasonably deems any indemnity, security or undertaking from the Company or the Holders to be sufficient.

(c) So long as an Event of Default is not continuing, the Company may direct the Collateral Agent in writing in connection with any action required or permitted by this Indenture, the Security Documents or the Intercreditor Agreement. During the continuance of an Event of Default, the Trustee, or the requisite Holders pursuant to Section 6.09, may, subject to the terms of the Intercreditor Agreement, direct the Collateral Agent in connection with any action required or permitted by this Indenture, the Security Documents or the Intercreditor Agreement.

(d) The Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless the Collateral Agent shall have received written notice from the Trustee, a Holder or the Company referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee or the Holders of the Minimum Principal Amount of the Notes subject to this Article 17.

Section 17.09 Authorization of Receipt of Funds by the Trustee Under the Security Documents. The Collateral Agent is authorized to receive any funds for the benefit of itself, the Trustee and the Holders distributed under the Security Documents or the Intercreditor Agreement and, to the extent not prohibited under the Intercreditor Agreement, to make further distributions of such funds to itself, the Trustee and the Holders in accordance with the provisions of Section and the other provisions of this Indenture. Such funds shall be held on deposit by the Trustee without investment (unless otherwise provided in this Indenture), and the Trustee shall have no liability for interest or other compensation thereon.

Section 17.10 Action by the Collateral Agent. Beyond the exercise of reasonable care in the custody thereof, the Collateral Agent shall have no duty as to any Collateral in its possession or control or in the possession or control of any agent or bailee or any income thereon or as to preservation of rights against prior parties or any other rights pertaining thereto. The Collateral Agent shall be deemed to have exercised reasonable care in the custody of the Collateral in its possession if the Collateral is accorded treatment substantially equal to that which the Collateral Agent accords its own property and shall not be liable or responsible for any loss or diminution in the value of any of the Collateral, by reason of the act or omission of any carrier, forwarding agency or other agent or bailee selected by the Collateral Agent in good faith and with reasonable care.

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Neither the Trustee nor Collateral Agent shall be responsible for (i) the existence, genuineness or value of any of the Collateral; (ii) the validity, perfection, priority or enforceability of the Liens intended to be created by this Indenture or the Security Documents in any of the Collateral, whether impaired by operation of law or by reason of any action or omission to act on its part hereunder (except to the extent such action or omission constitutes gross negligence or willful misconduct on the part of the Collateral Agent (as determined by a final non-appealable order of a court of competent jurisdiction not subject to appeal)); (iii) the sufficiency of the Collateral; (iv) the validity of the title of the Company and the Guarantors to any of the Collateral; (v) insuring the Collateral; (vi) any action taken or omitted to be taken by it under or in connection with this Indenture or the transactions contemplated hereby (except for its own gross negligence or willful misconduct as determined by a final nonappealable order of a court of competent jurisdiction) or (vii) any recital, statement, representation, warranty, covenant or agreement made by the Company or any Affiliate of the Company, or any officer or Affiliate thereof, contained in the Indenture Documents or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent under or in connection with, the Indenture Documents. The Company and the Guarantors shall be responsible for the maintenance of the Collateral and for the payment of taxes, charges or assessments upon the Collateral. For the avoidance of doubt, nothing herein shall require the Collateral Agent or the Trustee to file financing statements or continuation statements, or be responsible for maintaining the security interests purported to be created and described herein (except for the safe custody of any Collateral in its possession and the accounting for moneys actually received by it hereunder or under any other Indenture Document) and such responsibility shall be solely that of the Company. The Collateral Agent shall not be under any obligation to the Trustee or any Holder to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, the Indenture Documents or to inspect the properties, books, or records of the Company or any of its Affiliates.

Section 17.11 Compensation and Indemnity.

(a) The Company shall pay to the Collateral Agent from time to time compensation as shall be agreed to in writing by the Company and the Collateral Agent for its acceptance of this Indenture, the Intercreditor Agreement, the Security Documents and services hereunder. The Company shall reimburse the Collateral Agent promptly upon request for all reasonable disbursements, advances and reasonable and documented out-of-pocket expenses incurred or made by it in connection with Collateral Agent’s duties under the Indenture Documents, including the reasonable compensation, disbursements and expenses of the Collateral Agent’s agents and counsel, except any disbursement, advance or expense as may be attributable to the Collateral Agent’s willful misconduct or gross negligence.

(b) The Company and the Guarantors shall, jointly and severally, indemnify the Collateral Agent and any predecessor Collateral Agent and each of their agents, employees, officers and directors for, and hold them harmless against, any and all losses, liabilities, claims, damages or expenses (including the fees and expenses of counsel to the Collateral Agent and any environmental liabilities) incurred by it arising out of or in connection with the acceptance or administration of its duties under this Indenture, the Intercreditor Agreement and the Security Documents, including, without limitation (i) any claim relating to the grant to the Collateral Agent of any Lien in any property or assets of the Company or the Guarantors and (ii) the costs and

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expenses of enforcing this Indenture, the Intercreditor Agreement and the Security Documents against the Company and the Guarantors (including this Section 17.11) and defending itself against or investigating any claim (whether asserted by the Company, the Guarantors, any Holder or any other Person) or liability in connection with the exercise or performance of any of its powers or duties hereunder or thereunder, except to the extent any such loss, liability, claim, damage or expense shall have been determined by a court of competent jurisdiction to have been attributable to its willful misconduct or gross negligence. The Collateral Agent shall notify the Company promptly of any claim for which it may seek indemnity. Failure by the Collateral Agent to so notify the Company shall not relieve the Company or the Guarantors of their obligations hereunder, except to the extent the Company or the Guarantors are materially prejudiced thereby. At the Collateral Agent’s sole discretion, the Company and the Guarantors shall defend any claim or threatened claim asserted against the Collateral Agent, with counsel reasonably satisfactory to the Collateral Agent, and the Collateral Agent shall cooperate in the defense at the Company’s and the Guarantors’ expense. The Collateral Agent may have one separate U.S. counsel (and one separate foreign counsel in each applicable non-U.S. jurisdiction) and the Company and the Guarantors shall pay the reasonable fees and expenses of such counsel. The Company and the Guarantors need not pay for any settlement made without their consent, which consent shall not be unreasonably withheld.

(c) The Collateral Agent shall be entitled to all rights, privileges, immunities and protections of the Trustee set forth in this Indenture whether or not expressly stated therein, including but not limited to the right to be compensated, reimbursed and indemnified under Section 7.06, in the acceptance, execution, delivery and performance of the Security Documents as though fully set forth therein. Notwithstanding any provision to the contrary contained elsewhere in the Indenture Documents, the Collateral Agent shall not have any duties or responsibilities, except those expressly set forth in the Indenture Documents to which the Collateral Agent is a party, nor shall the Collateral Agent have or be deemed to have any fiduciary relationship with the Trustee, any Holder or the Company, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into the Indenture Documents or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties.

(d) The obligations of the Company and the Guarantors under this Section 17.11 shall survive the satisfaction and discharge of this Indenture and the resignation, removal or replacement of the Collateral Agent.

Section 17.12 Post-Closing Collateral. To the extent the Company and the Guarantors are not able to execute and deliver all Security Documents required in connection with the creation and perfection of the Liens of the Collateral Agent on the Collateral (to the extent required by the Indenture Documents) on or prior to the Issue Date, the Company and the Guarantors will use their commercially reasonable efforts to have all security interests in the Collateral duly created and enforceable and perfected, to the extent required by the Indenture Documents, within the time period required by the Security Agreement.

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ARTICLE 18

MISCELLANEOUS PROVISIONS

Section 18.01 Provisions Binding on Company’s Successors. All the covenants, stipulations, promises and agreements of the Company contained in this Indenture shall bind its successors and assigns whether so expressed or not.

Section 18.02 Official Acts by Successor Corporation. Any act or proceeding by any provision of this Indenture authorized or required to be done or performed by any board, committee or Officer of the Company shall and may be done and performed with like force and effect by the like board, committee or officer of any corporation or other entity that shall at the time be the lawful sole successor of the Company.

Section 18.03 Addresses for Notices, Etc. Any notice or demand that by any provision of this Indenture is required or permitted to be given or served by the Trustee or by the Holders on the Company or any Guarantor shall be deemed to have been sufficiently given or made, for all purposes if given or served by being deposited postage prepaid by registered or certified mail in a post office letter box addressed (until another address is filed by the Company with the Trustee) to Bloom Energy Corporation, 1299 Orleans Drive, Sunnyvale, California 94089, Attention: General Counsel, or send electronically in . pdf format. Any notice, direction, request or demand hereunder to or upon the Trustee or Collateral Agent shall be deemed to have been sufficiently given or made, for all purposes, if given or served by being deposited postage prepaid by registered or certified mail in a post office letter box addressed to the Corporate Trust Office, or sent electronically in .pdf format, whether sent by mail or electronically, upon actual receipt by the Trustee.

The Trustee and Collateral Agent, by notice to the Company, may designate additional or different addresses for subsequent notices or communications.

Any notice or communication delivered or to be delivered to a Holder of Physical Notes shall be mailed to it by first class mail, postage prepaid, at its address as it appears on the Note Register and shall be sufficiently given to it if so mailed within the time prescribed. Any notice or communication delivered or to be delivered to a Holder of Global Notes shall be delivered in accordance with the applicable procedures of the Depositary and shall be sufficiently given to it if so delivered within the time prescribed.

Failure to mail or deliver a notice or communication to a Holder or any defect in it shall not affect its sufficiency with respect to other Holders. If a notice or communication is mailed or delivered, as the case may be, in the manner provided above, it is duly given, whether or not the addressee receives it.

Notwithstanding any other provision of this Indenture or any Note, where this Indenture or any Note provides for notice of any event (including any notice of repurchase) to a Holder (whether by mail or otherwise), such notice shall be sufficiently given (in the case of a Global Note) if given to the Depositary (or its designee) pursuant to the standing instructions from the Depositary or its designee, including by electronic mail in accordance with accepted practices or procedures at the Depositary.

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Section 18.04 Governing Law; Jurisdiction. THIS INDENTURE AND EACH NOTE, AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS INDENTURE AND EACH NOTE, SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.

Each of the Company and the Guarantors, if any, irrevocably consents and agrees, for the benefit of the Holders from time to time of the Notes and the Trustee, that any legal action, suit or proceeding against it with respect to obligations, liabilities or any other matter arising out of or in connection with this Indenture or the Notes may be brought in the courts of the State of New York or the courts of the United States located in the Borough of Manhattan, New York City, New York and, until amounts due and to become due in respect of the Notes have been paid, hereby irrevocably consents and submits to the non-exclusive jurisdiction of each such court in personam, generally and unconditionally with respect to any action, suit or proceeding for itself in respect of its properties, assets and revenues.

Each of the Company and the Guarantors, if any, irrevocably and unconditionally waives, to the fullest extent permitted by law, any objection which it may now or hereafter have to the laying of venue of any of the aforesaid actions, suits or proceedings arising out of or in connection with this Indenture brought in the courts of the State of New York or the courts of the United States located in the Borough of Manhattan, New York City, New York and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum.

Section 18.05 Evidence of Compliance with Conditions Precedent; Certificates and Opinions of Counsel to Trustee. Upon any application or demand by the Company to the Trustee or the Collateral Agent to take any action under any of the provisions of this Indenture, the Company shall furnish to the Trustee or the Collateral Agent, as the case may be, an Officer’s Certificate and Opinion of Counsel stating that the conditions precedent and covenants, if any, provided for in this Indenture relating to such action have been satisfied.

Each Officer’s Certificate or Opinion of Counsel, provided for, by or on behalf of the Company in this Indenture and delivered to the Trustee or Collateral Agent with respect to compliance with this Indenture (other than the Officer’s Certificates provided for in Section 4.08) shall include (i) a statement that the person signing such certificate or opinion has read such covenant or condition precedent and is familiar with the requested action and this Indenture; (ii) a brief statement as to the nature and scope of the examination or investigation upon which the statement contained in such certificate or opinion is based; (iii) a statement that, in the judgment of such person, he or she has made such examination or investigation as is necessary to enable him or her to express an informed judgment as to whether or not the covenants and conditions precedent to such action have been satisfied; and (iv) a statement as to whether or not, in the opinion of such person, such covenants and conditions precedent have been satisfied.

Notwithstanding anything to the contrary in this Section 18.05, if any provision in this Indenture specifically provides that the Trustee or the Collateral Agent shall or may receive an Opinion of Counsel in connection with any action to be taken by the Trustee, the Collateral Agent or the Company hereunder, the Trustee or Collateral Agent, as the case may be, shall be entitled to such Opinion of Counsel.

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Section 18.06 Legal Holidays. In any case where any Interest Payment Date, Fundamental Change Repurchase Date, Change of Control Repurchase Date, Specified Repurchase Date or Maturity Date is not a Business Day, then any action to be taken on such date need not be taken on such date, but may be taken on the next succeeding Business Day with the same force and effect as if taken on such date, and no interest shall accrue or be paid in respect of the delay.

Section 18.07 Intercreditor Agreement. Notwithstanding anything herein to the contrary, the lien and security interest granted pursuant to the Indenture Documents and the exercise of any right or remedy thereunder are subject to the provisions of the Intercreditor Agreement. In the event of any conflict between the terms of the Intercreditor Agreement, and the Indenture Documents, the terms of the Intercreditor Agreement shall govern and control.

If any conflict or inconsistency exists between this Indenture, the Notes, and any Security Document (other than the Intercreditor Agreement), this Indenture shall govern.

Section 18.08 Benefits of Indenture. Nothing in this Indenture or in the Notes, expressed or implied, shall give to any Person, other than the Holders, the parties hereto, any Paying Agent, any Conversion Agent, any authenticating agent, any Note Registrar and their successors hereunder, any benefit or any legal or equitable right, remedy or claim under this Indenture.

Section 18.09 Table of Contents, Headings, Etc. The table of contents and the titles and headings of the articles and sections of this Indenture have been inserted for convenience of reference only, are not to be considered a part hereof, and shall in no way modify or restrict any of the terms or provisions hereof.

Section 18.10 Authenticating Agent. The Trustee may appoint an authenticating agent that shall be authorized to act on its behalf and subject to its direction in the authentication and delivery of Notes in connection with the original issuance thereof and transfers and exchanges of Notes hereunder, including under Section 2.04, Section 2.05, Section 2.06, Section 2.07, Section and Section 15.05 as fully to all intents and purposes as though the authenticating agent had been expressly authorized by this Indenture and those Sections to authenticate and deliver Notes. For all purposes of this Indenture, the authentication and delivery of Notes by the authenticating agent shall be deemed to be authentication and delivery of such Notes “by the Trustee” and a certificate of authentication executed on behalf of the Trustee by an authenticating agent shall be deemed to satisfy any requirement hereunder or in the Notes for the Trustee’s certificate of authentication. Such authenticating agent shall at all times be a Person eligible to serve as trustee hereunder pursuant to Section 7.08.

Any corporation or other entity into which any authenticating agent may be merged or converted or with which it may be consolidated, or any corporation or other entity resulting from any merger, consolidation or conversion to which any authenticating agent shall be a party, or any corporation or other entity succeeding to the corporate trust business of any authenticating agent, shall be the successor of the authenticating agent hereunder, if such successor corporation or other

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entity is otherwise eligible under this Section 18.10, without the execution or filing of any paper or any further act on the part of the parties hereto or the authenticating agent or such successor corporation or other entity.

Any authenticating agent may at any time resign by giving written notice of resignation to the Trustee and to the Company. The Trustee may at any time terminate the agency of any authenticating agent by giving written notice of termination to such authenticating agent and to the Company. Upon receiving such a notice of resignation or upon such a termination, or in case at any time any authenticating agent shall cease to be eligible under this Section, the Trustee may appoint a successor authenticating agent (which may be the Trustee), shall give written notice of such appointment to the Company and shall mail notice of such appointment to all Holders as the names and addresses of such Holders appear on the Note Register.

The Company agrees to pay to the authenticating agent from time to time reasonable compensation for its services although the Company may terminate the authenticating agent, if it determines such authenticating agent’s fees to be unreasonable.

The provisions of Section 7.02, Section 7.03, Section 7.04, Section 7.06, Section 8.03 and this Section 18.10 shall be applicable to any authenticating agent.

If an authenticating agent is appointed pursuant to this Section 18.10, the Notes may have endorsed thereon, in addition to the Trustee’s certificate of authentication, an alternative certificate of authentication in the following form:

                                         ,

as Authenticating Agent, certifies that this is one of the Notes described in the within-named Indenture.

By:

Authorized Signatory

Section 18.11 Execution in Counterparts. This Indenture may be executed in any number of counterparts, each of which shall be an original, but such counterparts shall together constitute but one and the same instrument. The exchange of copies of this Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Indenture as to the parties hereto and may be used in lieu of the original Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes.

Section 18.12 Severability. In the event any provision of this Indenture or in the Notes shall be invalid, illegal or unenforceable, then (to the extent permitted by law) the validity, legality or enforceability of the remaining provisions shall not in any way be affected or impaired.

Section 18.13 Waiver of Jury Trial. EACH OF THE COMPANY, THE GUARANTORS, IF ANY, THE TRUSTEE AND THE COLLATERAL AGENT HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES OR THE TRANSACTIONS CONTEMPLATED HEREBY.

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Section 18.14 Force Majeure. In no event shall the Trustee or Collateral Agent be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that the Trustee shall use reasonable efforts that are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.

Section 18.15 Calculations. The Company shall be responsible for making all calculations called for under the Notes and the Trustee (acting in any capacity) shall have no liability or responsibility for any calculation hereunder or any bid, quotation, data or information in connection therewith. These calculations include, but are not limited to, determinations of the Stock Price, Last Reported Sale Prices of the Common Stock, the Transaction Price, accrued interest payable on the Notes, determination of how whether interest shall be payable as PIK Interest or Cash Interest, Additional Interest, Book Value, the Collateral Value, the Investment Collateral Value, the Threshold Amount and the Conversion Rate (including the Change of Control Conversion Rate and the Maximum Initial Conversion Rate) of the Notes. The Company shall make all these calculations in good faith and, absent manifest error, the Company’s calculations shall be final and binding on Holders of Notes. The Company shall provide a schedule of its calculations to each of the Trustee, the Paying Agent and the Conversion Agent, and each of the Trustee, the Paying Agent and Conversion Agent is entitled to rely conclusively upon the accuracy of the Company’s calculations without independent verification. The Trustee will forward the Company’s calculations to any Holder upon the written request of that Holder at the sole cost and expense of the Company.

Section 18.16 USA PATRIOT Act. The parties hereto acknowledge that in accordance with Section 326 of the USA PATRIOT Act, the Trustee, like all financial institutions and in order to help fight the funding of terrorism and money laundering, is required to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account with the Trustee. The parties to this Indenture agree that they will provide the Trustee with such information as it may request in order for the Trustee to satisfy the requirements of the USA PATRIOT Act.

[Remainder of page intentionally left blank]

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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of the date first written above.

BLOOM ENERGY CORPORATION
By:	/s/ Randy Furr
Name:	Randy Furr
Title:	Chief Financial Officer and Secretary

RYE CREEK LLC, as Guarantor
By:	Bloom Energy Corporation, its sole members
By:	/s/ Randy Furr
Name:	Randy Furr
Title:	Chief Financial Officer and Secretary

[Bloom Energy -Signature Page to Indenture]

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U.S. BANK NATIONAL ASSOCIATION as Trustee and Collateral Agent
By:	/s/ Bradley E. Scarbrough
Name:	Bradley E. Scarbrough
Title:	Vice President

[Bloom Energy - Signature Page to Indenture]

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EXHIBIT A

[FORM OF FACE OF NOTE]

[INCLUDE FOLLOWING LEGEND IF A GLOBAL NOTE]

[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREUNDER IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]

[INCLUDE FOLLOWING LEGEND IF A RESTRICTED SECURITY]

[THE SALE OF THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, PRIOR TO THE RESALE RESTRICTION TERMINATION DATE (AS DEFINED BELOW), THIS NOTE AND ANY SHARES OF COMMON STOCK ISSUABLE UPON CONVERSION OF THIS NOTE MAY NOT BE OFFERED, RESOLD OR OTHERWISE TRANSFERRED, EXCEPT:

(A) TO BLOOM ENERGY CORPORATION (THE “COMPANY”) OR ANY SUBSIDIARY THEREOF;

(B) PURSUANT TO, AND IN ACCORDANCE WITH, A REGISTRATION STATEMENT THAT IS EFFECTIVE UNDER THE SECURITIES ACT AT THE TIME OF SUCH TRANSFER;

(C) TO A PERSON THAT YOU REASONABLY BELIEVE TO BE A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT OR TO A PERSON THAT YOU REASONABLY BELIEVE TO BE AN ACCREDITED INVESTOR AS DEFINED IN RULE 501(A) OF REGULATION D UNDER THE SECURITIES ACT; OR

(D) UNDER ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (INCLUDING, IF AVAILABLE, THE EXEMPTION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT).

THE “RESALE RESTRICTION TERMINATION DATE” MEANS THE LATER OF: (1) THE DATE THAT IS ONE YEAR AFTER THE LAST DATE OF ORIGINAL ISSUANCE OF THE NOTES OR SUCH SHORTER PERIOD OF TIME PERMITTED BY RULE 144 OR ANY SUCCESSOR PROVISION THERETO; AND (2) SUCH OTHER DATE AS MAY BE REQUIRED BY APPLICABLE LAW.

A-1

WITH RESPECT TO ANY TRANSFER PURSUANT TO THE FOREGOING CLAUSE (C), WITH RESPECT TO AN ACCREDITED INVESTOR AND CLAUSE (D), IN EACH CASE PRIOR TO THE RESALE RESTRICTION TERMINATION DATE, THE COMPANY AND THE NOTE REGISTRAR RESERVE THE RIGHT TO REQUIRE THE DELIVERY OF SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS THEY MAY REASONABLY REQUIRE AND MAY RELY UPON TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.]

A-2

Bloom Energy Corporation

[PIK]¹

No. [        ] [Initially]² $[        ]

CUSIP No. [                    ]

Bloom Energy Corporation, a corporation duly organized and validly existing under the laws of the State of Delaware (the “Company,” which term includes any successor corporation or other entity under the Indenture referred to on the reverse hereof), for value received hereby promises to pay to [CEDE & CO.]³ [                     ]⁴, or registered assigns, the principal sum [as setforth in the “Schedule of Exchanges of Notes” attached hereto]⁵ [of $[         ]]⁶, which amount, taken together with the principal amounts of all other outstanding Notes, shall not, unless permitted by the Indenture, exceed $1[        ],000,000 in aggregate at any time, [in accordance with the rules and procedures of the Depositary,] on December 1, 2020, and interest thereon as set forth below.

This Note shall bear interest at the rate of 5.0% per year from [            ], 2015, or from the most recent date to which interest had been paid or provided for to, but excluding, the next scheduled Interest Payment Date until December 1, 2020. Interest is payable monthly in arrears on each January 1, February 1, March 1, April 1, May 1, June 1, July 1, August 1, September 1, October 1, November 1 and December 1, commencing on [                     ], to Holders of record at the close of business on the preceding December 15, January 15, February 15, March 15, April 15, May 15, June 15, July 15, August 15, September 15, October 15 and November 15 (whether or not such day is a Business Day), respectively. Accrued interest on the Notes shall be computed on the basis of a 360-day year composed of twelve 30-day months or, in the case of a partial month, the number of days elapsed over a 30-day month and shall be compounded monthly on the last day of each month. Additional Interest will be payable as set forth in Section 4.10 and Section 6.04 of the within-mentioned Indenture, and any reference to interest on, or in respect of, any Note therein shall be deemed to include Additional Interest if, in such context, Additional Interest is, was or would be payable pursuant to Section 4.10 and Section 6.04, and any express mention of the payment of Additional Interest in any provision therein shall not be construed as excluding Additional Interest in those provisions thereof where such express mention is not made.

Interest will be payable, at the election of the Company (made by delivering a notice to the Trustee prior to the beginning of the related Interest Period), (1) entirely in Cash Interest or entirely in PIK Interest. In the absence of an interest payment election, interest on the Notes will be payable in PIK Interest. Notwithstanding anything to the contrary, the payment of accrued

¹  Insert on any certificated PIK Notes.

²  Include if a Global Note.

³  Include if a Global Note.

⁴  Include if a Physical Note.

⁵  Include if a Global Note.

⁶  Include if a Physical Note.

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interest shall be made solely in cash, (A) in connection with any redemption or repurchase of Notes as described under Section 13.01, Section 13.02, Section 15.01, Section 15.02 and Section 15.03 of the Indenture, (1) with respect to all Notes, if the related Redemption Date, Specified Repurchase Date, Fundamental Change Repurchase Date or Change of Control Repurchase Date, as applicable, is after a Regular Record Date and on or prior to the Scheduled Trading Day immediately following the date on which the corresponding interest payment is made or (2) solely with respect to the Notes to be repurchased or redeemed, if the related Redemption Date, Specified Repurchase Date, Fundamental Change Repurchase Date or Change of Control Repurchase Date, as applicable, is on any other date, (B) with respect to all Notes, if any Notes are surrendered for conversion after the close of business on a Regular Record Date for the payment of interest and on or prior to the related Interest Payment Date and (C) on the final Interest Payment Date.

Following an increase in the principal amount of any outstanding Global Notes as a result of a PIK Payment, such Global Note will bear interest on such increased principal amount from and after the date of such PIK Payment. Any PIK Notes issued in certificated form will be dated as of the applicable Interest Payment Date and will bear interest from and after such date. All PIK Notes issued pursuant to a PIK Payment will be governed by, and subject to the terms, provisions and conditions of, the Indenture and shall have the same rights and benefits as the Notes issued on the Issue Date.

Any Defaulted Amounts shall accrue interest per annum at the rate borne by the Notes, subject to the enforceability thereof under applicable law, from, and including, the relevant payment date to, but excluding, the date on which such Defaulted Amounts shall have been paid by the Company, at its election, in accordance with Section 2.03(d) of the Indenture.

The Company shall pay the principal of and interest (other than PIK Interest) on this Note, if and so long as such Note is a Global Note, in immediately available funds to the Depositary or its nominee, as the case may be, as the registered Holder of such Note. As provided in and subject to the provisions of the Indenture, the Company shall pay the principal of any Notes (other than Notes that are Global Notes) at the office or agency designated by the Company for that purpose. The Company has initially designated the Trustee as its Paying Agent and Note Registrar in respect of the Notes and its agency in the continental United States of America as a place where Notes may be presented for payment or for registration of transfer and exchange.

At all times, PIK Interest on the Notes will be payable (x) with respect to Notes represented by one or more Global Notes registered in the name of, or held by, DTC or its nominee on the relevant Regular Record Date, by increasing the principal amount of the outstanding Global Note by an amount equal to the amount of PIK Interest for the applicable Interest Period (rounded to the nearest whole dollar, with amounts of $0.50 or more being rounded up), or by issuing a new Global Note, if required pursuant to the applicable procedures of the Depositary, in each case, as provided in writing by the Company to the Trustee, and the Trustee, at the written request of the Company, will record such increase in such Global Note and (y) with respect to Notes represented by Physical Notes, by issuing PIK Notes in certificated form in an aggregate principal amount equal to the amount of PIK Interest for the applicable Interest Period (rounded to the nearest whole dollar, with amounts of $0.50 or more being rounded up), and the Trustee will, at the written request of the Company in a Company Order, authenticate and deliver such PIK Notes in certificated form for original issuance to the Holders on the relevant Regular Record Date, as shown in the register of the Note Registrar.

A-4

Reference is made to the further provisions of this Note set forth on the reverse hereof, including, without limitation, provisions giving the Holder of this Note the right to convert this Note into shares of Common Stock on the terms and subject to the limitations set forth in the Indenture. Such further provisions shall for all purposes have the same effect as though fully set forth at this place.

This Note, and any claim, controversy or dispute arising under or related to this Note, shall be construed in accordance with and governed by the laws of the State of New York.

In the case of any conflict between this Note and the Indenture, the provisions of the Indenture shall control and govern.

This Note shall not be valid or become obligatory for any purpose until the certificate of authentication hereon shall have been signed manually by the Trustee or a duly authorized authenticating agent under the Indenture.

[Remainder of page intentionally left blank]

A-5

IN WITNESS WHEREOF, the Company has caused this Note to be duly executed.

BLOOM ENERGY CORPORATION
By:
	Name:
	Title:

TRUSTEE’S CERTIFICATE OF AUTHENTICATION
U.S. BANK NATIONAL ASSOCIATION as Trustee, certifies that this is one of the Notes described in the within-named Indenture.
By:
	Authorized Signatory
Dated:

A-6

[FORM OF REVERSE OF NOTE]

Bloom Energy Corporation

5.0% Convertible Senior Secured PIK Note due 2020

This Note is one of a duly authorized issue of Notes of the Company, designated as its 5.0% Convertible Senior Secured PIK Notes due 2020 (the “Notes”), initially limited to the aggregate principal amount of $160,000,000 all issued or to be issued under and pursuant to an Indenture dated as of December 15, 2015 (the “Indenture”), between the Company and U.S. Bank National Association, a national banking association, as trustee (the “Trustee”) and collateral agent (the “Collateral Agent”), to which Indenture and all indentures supplemental thereto reference is hereby made for a description of the rights, limitations of rights, obligations, duties and immunities thereunder of the Trustee, the Company and the Holders of the Notes. Additional Notes may be issued subject to certain conditions specified in the Indenture. Capitalized terms used in this Note and not defined in this Note shall have the respective meanings set forth in the Indenture.

In case certain Events of Default shall have occurred and be continuing, the principal of, and interest on, all Notes may be declared, by either the Trustee or Holders of at least 25% in aggregate principal amount of Notes then outstanding, and upon said declaration shall become, due and payable, in the manner, with the effect and subject to the conditions and certain exceptions set forth in the Indenture.

Subject to the terms and conditions of the Indenture, the Company will make all payments and deliveries in respect of the Fundamental Change Repurchase Price, Change of Control Repurchase Price or the Specified Repurchase Date Price on the Fundamental Change Repurchase Date, Change of Control Repurchase Date or the Specified Repurchase Date, as applicable, and the principal amount on the Maturity Date, as the case may be, to the Holder who surrenders a Note to a Paying Agent to collect such payments in respect of the Note. The Company will pay cash amounts in money of the United States that at the time of payment is legal tender for payment of public and private debts.

The Indenture contains provisions permitting the Company, the Trustee and the Collateral Agent in certain circumstances, without the consent of the Holders of the Notes, and in certain other circumstances, with the consent of the Holders of not less than the Minimum Principal Amount of the Notes at the time outstanding, evidenced as in the Indenture provided, to execute supplemental indentures modifying the terms of the Indenture and the Notes as described therein. It is also provided in the Indenture that, subject to certain exceptions, the Holders of the Minimum Principal Amount of the Notes at the time outstanding may on behalf of the Holders of all of the Notes waive any past Default or Event of Default under the Indenture and its consequences.

No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay or deliver, as the case may be, the principal (including the Fundamental Change Repurchase Price, Change of Control Repurchase Price or the Specified Repurchase Date Price, if applicable) of, accrued and unpaid interest on, and the consideration due upon conversion of, this Note at the place, at the respective times, at the rate and in the lawful money or shares of Common Stock, as the case may be, herein prescribed.

A-7

The Notes are issuable in registered form without coupons in denominations of $1,000 principal amount and integral multiples thereof; provided that after a PIK Payment, the Notes shall be in minimum denominations of $1.00 and any integral multiple of $1.00 in excess thereof. At the office or agency of the Company referred to on the face hereof, and in the manner and subject to the limitations provided in the Indenture, Notes may be exchanged for a like aggregate principal amount of Notes of other authorized denominations, without payment of any service charge but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such exchange of Notes being different from the name of the Holder of the old Notes surrendered for such exchange.

The Notes are subject to redemption at the Company’s option, in whole or in part, on or after the date that is two calendar years after the consummation of the Qualified IPO if the Last Reported Sale Price of the Common Stock has been at least 150% of the Qualified IPO Price then in effect for at least 20 Trading Days (whether or not consecutive) during a period of 30 consecutive Trading Days ending within three Trading Days immediately preceding the date on which the Company provides written notice of redemption. The Notes are not subject to any sinking fund. In certain circumstances, the Notes are also redeemable at the Company’s option, in whole or in part, in connection with a Change of Control at the Change of Control Redemption Price.

On or after a Qualified IPO, and upon the occurrence of a Fundamental Change, the Holder has the right, at such Holder’s option and subject to the provisions of the Indenture, to require the Company to repurchase for cash all of such Holder’s Notes or any portion thereof (in principal amounts of $1,000 (or, if a PIK Payment has been made, in principal amounts of $1.00) or integral multiples thereof) on the Fundamental Change Repurchase Date at a price equal to the Fundamental Change Repurchase Price.

If the Qualified IPO has not occurred before December 15, 2018, the Holder has the right, at such Holder’s option and subject to the provisions of the Indenture, to require the Company to repurchase for cash all of such Holder’s Notes or any portion thereof (in principal amounts of $1,000 (or, if a PIK Payment has been made, in principal amounts of $1.00) or integral multiples thereof) on the Specified Repurchase Date at a price equal to the Specified Repurchase Date Price.

If a Change of Control occurs at any time prior to the Qualified IPO, the Holder has the right, at such Holder’s option and subject to the provisions of the Indenture, to require the Company to repurchase for cash all of such Holder’s Notes or any portion thereof (in principal amounts of $1,000 (or, if a PIK Payment has been made, in principal amounts of $1.00) or integral multiples thereof) on the Change of Control Repurchase Date at a price equal to the Change of Control Repurchase Price.

A-8

The Notes are convertible into Common Stock in accordance with the terms of the Indenture.

The payment of the principal of, premium, if any, and interest, if any, on the Notes, is unconditionally guaranteed, jointly and severally, by the Guarantors, if any, to the extent set forth in and subject to the provisions of the Indenture.

Subject to the terms of the Intercreditor Agreement, if any, the Obligations of the Company and the Guarantors, if any, under the Notes and the Note Guarantees, if any, are secured by Liens on the Collateral pursuant to the terms of the Security Documents.

A-9

ABBREVIATIONS

The following abbreviations, when used in the inscription of the face of this Note, shall be construed as though they were written out in full according to applicable laws or regulations:

TEN COM = as tenants in common

UNIF GIFT MIN ACT = Uniform Gifts to Minors Act

CUST = Custodian

TEN ENT = as tenants by the entireties

JT TEN = joint tenants with right of survivorship and not as tenants in common

Additional abbreviations may also be used though not in the above list.

A-10

SCHEDULE A⁷

SCHEDULE OF EXCHANGES OF NOTES

Bloom Energy Corporation

5.0% Convertible Senior Secured PIK Notes due 2020

The initial principal amount of this Global Note is DOLLARS ($[        ]). The following increases or decreases in this Global Note have been made:

Date of exchange Amount of
decrease in
principal amount
of this Global Note Amount of
increase in
principal amount
of this Global Note Principal amount
of this Global Note
following such
decrease or
increase Signature of
authorized
signatory of
Trustee or
Custodian

⁷  Include if a Global Note.

A-11

ATTACHMENT 1

[FORM OF NOTICE OF CONVERSION]

Bloom Energy Corporation

5.0% Convertible Senior Secured PIK Notes due 2020

To:	Bloom Energy Corporation
	1299 Orleans Drive
	Sunnyvale, California 94089
	U.S. BANK NATIONAL ASSOCIATION
	633 West Fifth Street, 24th Floor
	Los Angeles, CA 90071
	Attention: Bloom Energy Corporation Convertible Senior Secured PIK Notes due 2020

The undersigned registered owner of this Note hereby exercises the option to convert this Note, or the portion hereof (that is $1,000 principal amount (or if a PIK Payment has been made,

$1.00 principal amount) or an integral multiple thereof) below designated pursuant to:

¨  Section 14.01 [Only permitted prior to a Qualified IPO and for a period after a Change of Control specified in the Indenture]; or

¨  Section 14.02 [Only permitted on or after the earlier to occur of a Qualified IPO and September 1, 2020],

in accordance with the terms of the Indenture referred to in this Note, and directs that any cash payable and any shares of Common Stock issuable and deliverable upon such conversion, together with any cash for any fractional share, and any Notes representing any unconverted principal amount hereof, be issued and delivered to the registered Holder hereof unless a different name has been indicated below. If any shares of Common Stock or Preferred Stock, as the case may be, or any portion of this Note not converted are to be issued in the name of a Person other than the undersigned, the undersigned will pay all documentary, stamp or similar issue or transfer taxes, if any in accordance with Section 14.03(d) and Section 14.03(e) of the Indenture. Any amount required to be paid to the undersigned on account of interest accompanies this Note. Capitalized terms used herein but not defined shall have the meanings ascribed to such terms in the Indenture.

Dated:
	Signature(s)

1

Signature Guarantee

Signature(s) must be guaranteed by an eligible Guarantor Institution (banks, stock brokers, savings and loan associations and credit unions) with membership in an approved signature guarantee medallion program pursuant to Securities and Exchange Commission Rule 17Ad-15 if shares of Common Stock are to be issued, or Notes are to be delivered, other than to and in the name of the registered holder.

Fill in for registration of shares if to be issued, and Notes if to be delivered, other than to and in the name of the registered holder:

(Name)

(Street Address)

(City, State and Zip Code)

Plesae print name and address

Principal amount to be converted (if less than all): $        ,000

NOTICE: The above signature(s) of the Holder(s) hereof must correspond with the name as written upon the face of the Note in every particular without alteration or enlargement or any change whatever.

Social Security or Other Taxpayer Identification Number

2

ATTACHMENT 2

[FORM OF FUNDAMENTAL CHANGE REPURCHASE NOTICE]

Bloom Energy Corporation

5.0% Convertible Senior Secured PIK Notes due 2020

To:	Bloom Energy Corporation
	1299 Orleans Drive
	Sunnyvale, California 94089
	U.S. BANK NATIONAL ASSOCIATION
	633 West Fifth Street, 24th Floor
	Los Angeles, CA 90071
	Attention: Bloom Energy Corporation Convertible Senior Secured PIK Notes due 2020

The undersigned registered owner of this Note hereby acknowledges receipt of a notice from Bloom Energy Corporation (the “Company”) as to the occurrence of a Fundamental Change with respect to the Company and specifying the Fundamental Change Repurchase Date and requests and instructs the Company to pay to the registered holder hereof in accordance with Section 15.02 of the Indenture referred to in this Note (1) the entire principal amount of this Note, or the portion thereof (that is $1,000 principal amount (or if a PIK Payment has been made, $1.00 principal amount) or an integral multiple thereof) below designated, and (2) if such Fundamental Change Repurchase Date does not fall during the period after a Regular Record Date and on or prior to the Scheduled Trading Day immediately following the corresponding Interest Payment Date, accrued and unpaid interest, if any, thereon to, but excluding, such Fundamental Change Repurchase Date. Capitalized terms used herein but not defined shall have the meanings ascribed to such terms in the Indenture.

In the case of Physical Notes, the certificate numbers of the Notes to be repurchased are as set forth below:

Dated:

Signature(s)

Social Security or Other Taxpayer Identification Number

Principal amount to be repaid (if less than all): $         ,000

NOTICE: The above signature(s) of the Holder(s) hereof must correspond with the name as written upon the face of the Note in every particular without alteration or enlargement or any change whatever.

1

ATTACHMENT 3

[FORM OF SPECIFIED REPURCHASE DATE NOTICE]

To:	Bloom Energy Corporation
	1299 Orleans Drive
	Sunnyvale, California 94089
To:	U.S. BANK NATIONAL ASSOCIATION
	633 West Fifth Street, 24th Floor
	Los Angeles, CA 90071
	Attention: Bloom Energy Corporation Convertible Senior Secured PIK Notes due 2020

The undersigned registered owner of this Note hereby acknowledges receipt of a Specified Repurchase Date Company Notice from Bloom Energy Corporation (the “Company”) and specifying the Specified Repurchase Date and requests and instructs the Company to pay to the registered holder hereof in accordance with the applicable provisions of the Indenture referred to in this Note the entire principal amount of this Note, or the portion thereof (that is $1,000 principal amount (or if a PIK Payment has been made, $1.00 principal amount) or an integral multiple thereof) below designated and accrued and unpaid interest, if any, thereon to, but excluding, such Specified Repurchase Date. Capitalized terms used herein but not defined shall have the meanings ascribed to such terms in the Indenture.

In the case of Physical Notes, the certificate numbers of the Notes to be repurchased are as set forth below:

Dated:

Signature(s)

Social Security or Other Taxpayer Identification Number

Principal amount to be repaid (if less than all): $        ,000

NOTICE: The above signature(s) of the Holder(s) hereof must correspond with the name as written upon the face of the Note in every particular without alteration or enlargement or any change whatever.

ATTACHMENT 4

[FORM OF CHANGE OF CONTROL REPURCHASE NOTICE]

Bloom Energy Corporation

5.0% Convertible Senior Secured PIK Notes due 2020

To:	Bloom Energy Corporation
	1299 Orleans Drive
	Sunnyvale, California 94089
	BANK NATIONAL ASSOCIATION
	633 West Fifth Street, 24th Floor
	Los Angeles, CA 90071
	Attention: Bloom Energy Corporation Convertible Senior Secured PIK Notes due 2020

The undersigned registered owner of this Note hereby acknowledges receipt of a notice from Bloom Energy Corporation (the “Company”) as to the occurrence of a Change of Control with respect to the Company and specifying the Change of Control Repurchase Date and requests and instructs the Company to pay to the registered holder hereof in accordance with

Section 15.03 of the Indenture referred to in this Note (1) the entire principal amount of this Note, or the portion thereof (that is $1,000 principal amount (or if a PIK Payment has been made,

$1.00 principal amount) or an integral multiple thereof) below designated, and (2) if such Change of Control Repurchase Date does not fall during the period after a Regular Record Date and on or prior to the Scheduled Trading Day immediately following the corresponding Interest Payment Date, accrued and unpaid interest, if any, thereon to, but excluding, such Change of Control Repurchase Date. Capitalized terms used herein but not defined shall have the meanings ascribed to such terms in the Indenture.

In the case of Physical Notes, the certificate numbers of the Notes to be repurchased are as set forth below:

Dated:

Signature(s)

Social Security or Other Taxpayer Identification Number

Principal amount to be repaid (if less than all): $        ,000

NOTICE: The above signature(s) of the Holder(s) hereof must correspond with the name as written upon the face of the Note in every particular without alteration or enlargement or any change whatever.

1

ATTACHMENT 5

[FORM OF ASSIGNMENT AND TRANSFER]

Bloom Energy Corporation

5.0% Convertible Senior Secured PIK Notes due 2020

For value received                     hereby sell(s), assign(s) and transfer(s) unto                     (Please insert social security or Taxpayer Identification Number of assignee) the within Note, and hereby irrevocably constitutes and appoints                     attorney to transfer the said Note on the books of the Company, with full power of substitution in the premises.

In connection with any transfer of the within Note occurring prior to the Resale Restriction Termination Date, as defined in the Indenture governing such Note, the undersigned confirms that such Note is being transferred:

¨   To Bloom Energy Corporation or a subsidiary thereof; or

¨   Pursuant to, and in accordance with, a registration statement that has become or been declared effective under the Securities Act of 1933, as amended; or

¨   Pursuant to and in compliance with Rule 144A under the Securities Act of 1933, as amended; or

¨   Pursuant to any other available exemption from the registration requirements of the Securities Act of 1933, as amended (including, if available, the exemption provided by Rule 144 under the Securities Act of 1933, as amended).

1

Dated:

Signature(s)

Signature Guarantee

Signature(s) must be guaranteed by an eligible Guarantor Institution (banks, stock brokers, savings and loan associations and credit unions) with membership in an approved signature guarantee medallion program pursuant to Securities and Exchange Commission Rule 17Ad-15 if Notes are to be delivered, other than to and in the name of the registered holder.

NOTICE: The signature on the assignment must correspond with the name as written upon the face of the Note in every particular without alteration or enlargement or any change whatever.

2

EXHIBIT B

[FORM OF RESTRICTION AGREEMENT]

[DATE]

Via Facsimile: [●]

Bloom Energy Corporation

1299 Orleans Drive

Sunnyvale, California 94089

Ladies and Gentlemen:

In connection with the receipt by the undersigned (the “Investor”) of $[●] principal amount of 5.0% Convertible Senior Secured PIK Notes due 2020 (the “Notes”) issued by Bloom Energy Corporation (the “Company”) pursuant to the terms of the Indenture, dated December [●], 2015 (the “Indenture”), by and among the Company, the guarantors party thereto and U.S. Bank, National Association, as trustee and collateral agent, the Investor hereby acknowledges and agrees that, if all of the Company’s executive officers, directors and shareholders of more than 1% of the Common Equity of the Company enter into lock-up agreements (the “Lock-up Agreements”) with the applicable underwriters in connection with the filing of a registration statement including a prospectus setting forth an estimated offering price range with the Securities and Exchange Commission (the “SEC”) that is reasonably anticipated at the time of such filing to result in a Qualified IPO, upon the Company’s request, it will enter into a lock-up agreement with the underwriters of such Qualified IPO and upon such underwriters’ request, it will agree, effective no later than one week prior to the distribution of a preliminary prospectus in connection with the commencement of marketing activities in respect of such contemplated Qualified IPO, not to (a) 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 Equity of the Company or any securities convertible into or exercisable or exchangeable for Common Equity of the Company (whether such shares or any such securities are then owned by the Investor or are thereafter acquired) or (b) 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 Equity of the Company, whether any such transaction described in clause (a) or (b) above is to be settled by delivery of Common Equity or such other securities, in cash or otherwise, without the prior written consent of the Company or such underwriters, as the case may be; provided that such lock-up agreement shall not restrict the ability of such Holder of Notes to convert such Notes pursuant to the Indenture, is not more restrictive in any material respect than the Lock-up Agreements, and includes provisions for the pro rata release from such lock-up agreement entered into by the Investor of shares of Common Equity or other securities subject thereto upon the release of such shares or other securities from the Lock-up Agreements and contains provisions otherwise at least as favorable to such Investor as those contained in the Lock-up Agreements, in each case no less favorable than the lock-up provisions included in the Registration Rights Agreement as it exists on the Issue Date; provided, further that, (1) the pro rata release provision shall not apply (a) unless the underwriters have first waived more than 1%, in the aggregate, of the Common Equity of the Company from such

B-1

prohibitions or (b)(i) if the release or waiver is effected solely to permit a transfer not for consideration and (ii) the transferee has agreed in writing to be bound by the same terms described in this letter agreement, and (2) if the release or waiver is granted solely to allow a holder of Common Equity of the Company to participate as a selling stockholder in a follow-on public offering of such Common Equity of the Company pursuant to a registration statement that is filed with the SEC, the pro rata release provision shall apply only to the extent necessary to allow an Investor to participate in such follow-on offering with respect to securities sold by the Investor in such offering. The underwriters in connection with the Company’s Qualified IPO are intended third party beneficiaries of this letter agreement and shall have the right, power and authority to enforce the provisions hereof as though they were a party hereto. Each Investor agrees that the Company may instruct its transfer agent to place stop-transfer notations in its records to enforce the provisions of this letter agreement until the end of lock-up period.

Defined terms used but not defined herein have the meaning assigned to them in the Indenture.

Sincerely,
[Investor]
By:
	Name:
	Title:
[For any Investor requiring a second signature line]
By:
	Name:
	Title:

B-2

EXHIBIT C

[FORM OF SUPPLEMENTAL INDENTURE]

SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of [                     ], between (the “New Guarantor”), a direct or indirect subsidiary of Bloom Energy Corporation (or its successor), a Delaware corporation (the “Company”), the Company, and [             ], as trustee and collateral agent under the Indenture referred to below (the “Trustee”).

W I T N E S S E T H

WHEREAS, the Company and the Guarantors (as defined in the Indenture) have heretofore executed and delivered to the Trustee an indenture (as amended or supplemented, the “Indenture”), dated as of December 15, 2015, providing for the issuance of 5.0% Convertible Senior Secured PIK Notes due 2020 (the “Notes”);

WHEREAS, the Company may cause the New Guarantor to execute and deliver to the Trustee a supplemental indenture pursuant to which the New Guarantor shall unconditionally guarantee all of the Company’s obligations under the Indenture Documents pursuant to a Note Guarantee on the terms and conditions set forth herein; and

WHEREAS, Section 10.01(h) of the Indenture provides, among other things, that the Company, the Guarantors and the Trustee may amend or supplement the Indenture Documents without the consent of any Holder to add Note Guarantees with respect to the Notes.

NOW THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the New Guarantor, the Company and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders as follows:

1. CAPITALIZED TERMS. Capitalized terms used herein without definition shall have the meanings assigned to them in the Indenture.

2. AGREEMENT TO GUARANTEE. The New Guarantor hereby agrees, jointly and severally with all other Guarantors, to guarantee the Company’s Obligations under the Notes and the Indenture on the terms and subject to the conditions set forth in Article 16 of the Indenture and to be bound by all other applicable provisions of the Indenture.

3. EFFECTIVENESS. This Supplemental Indenture shall be effective upon execution by the parties hereto. Upon effectiveness of this Supplemental Indenture, the New Guarantor will be a Guarantor under the Indenture.

4. RECITALS. The recitals contained herein shall be taken as the statements of the Company and the Guarantors and the Trustee assumes no responsibility for their correctness. The Trustee makes no representations as to the validity of this Supplemental Indenture.

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5. NEW YORK LAW TO GOVERN. THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE.

6. COUNTERPARTS. The parties hereto may sign any number of copies of this Supplemental Indenture (including by electronic transmission). Each signed copy shall be an original, but all of them together represent the same agreement. The exchange of copies of this Supplemental Indenture and of signature pages by facsimile or portable document format transmission shall constitute effective execution and delivery of this Supplemental Indenture as to the parties hereto and may be used in lieu of the original Supplemental Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or portable document format shall be deemed to be their original signatures for all purposes.

7. EFFECT OF HEADINGS. The Section headings herein are for convenience only and shall not affect the construction hereof.

8. ACCEPTANCE BY THE TRUSTEE. The Trustee assumes no responsibility for the correctness of the recitals contained herein, which shall be taken as the statements of the Company and the New Guarantor and the Trustee shall not be responsible or accountable in any way whatsoever for or with respect to the validity, execution or sufficiency of this Supplemental Indenture and make no representation with respect thereto.

9. SEVERABILITY. In case any provision in this Supplemental Indenture shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby and such provision shall be ineffective only to the extent of such invalidity, illegality or unenforceability.

10. RATIFICATION OF INDENTURE; SUPPLEMENTAL INDENTURES PART OF INDENTURE. Except as expressly amended hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. This Supplemental Indenture shall form a part of the Indenture for all purposes, and every Holder of Notes heretofore or hereafter authenticated and delivered shall be bound hereby.

(signature pages follow)

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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed as of the day and year first above written.

BLOOM ENERGY CORPORATION
By:
	Name:
	Title:
[Insert Name of New Guarantor]
By:
	Name:
	Title:
U.S. BANK NATIONAL ASSOCIATION, as Trustee and Collateral Agent
By:
	Name:
	Title:

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EXHIBIT D

[Form of Notation of Guarantee]

Each Guarantor (capitalized terms used herein have the meanings given such terms in the Indenture referred to in the Note upon which this notation is endorsed) signing below hereby unconditionally, jointly and severally, guarantees (such guarantee being referred to herein as the “Guarantee”), to the extent set forth in the Indenture and subject to the provisions in the Indenture, the due and punctual payment of the principal of, premium, if any, and interest (if such Note provides for the payment of interest) on the Notes to which this notation is affixed and all other amounts due and payable under the Indenture and the Notes to which this notation is affixed by the Company.

The terms of the Guarantee evidenced by this Notation of Guarantee include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939 (15 U.S. Code Sections 77aaa-77bbbb), as amended. For the avoidance of doubt, the terms of Article 16 of the Indenture are incorporated by reference into this Notation of Guarantee as if set forth herein.

The Guarantee evidenced by this Notation of Guarantee shall not be valid or obligatory for any purpose until the certificate of authentication on the Notes upon which this Notation of Guarantee is noted shall have been executed by the Trustee under the Indenture by the manual signature of one of its authorized officers.

The Guarantee evidenced by this Notation of Guarantee shall be governed by and construed in accordance with the laws of the State of New York.

The Guarantee evidenced by this Notation of Guarantee is subject to release upon the terms set forth in the Indenture.

[                     ]
By:
	Name:
	Title:

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EXHIBIT E

[FORM OF INTERCREDITOR AGREEMENT]

INTERCREDITOR AGREEMENT, dated as of             , 20     (as amended, restated, supplemented or otherwise modified from time to time, this “Agreement”), is made by and among U.S. Bank National Association, in its capacity as collateral agent pursuant to the Indenture (as hereinafter defined) (in such capacity and together with any successors in such capacity, the “Notes Collateral Agent”), [            ] (“Credit Collateral Agent”), and Bloom Energy Corporation, a Delaware corporation (the “Company”), and the other Grantors party hereto in respect of the acknowledgement hereto.

RECITALS

Reference is made to that certain Indenture, dated as of December     , 2015 (as amended, modified, supplemented or restated and in effect from time to time, the “Indenture”, which term shall also include and refer to any additional issuance of notes under the Indenture) by and among the Company, each Notes Guarantor, U.S. Bank National Association, as trustee (together with its successors in such capacity, the “Trustee”) and the Notes Collateral Agent, pursuant to which the Company issued $        ,000,000 aggregate principal amount of its 5.0% Convertible Senior Secured PIK Notes due 2020 (together with any additional notes issued under the Indenture, the “Senior Secured Notes”).

Reference is made to that certain Security Agreement, dated as of December     , 2015 (as amended, modified, supplemented or restated and in effect from time to time, the “Notes Security Agreement”), among the Company, the Notes Guarantors from time to time party thereto and the Notes Collateral Agent pursuant to which the Company and such Notes Guarantors granted a security interest in their assets described therein to secure the Senior Secured Notes and the other Notes Obligations (as defined below).

Reference is made to that certain [Credit Agreement], dated as of                     (as amended, modified, supplemented or restated and in effect from time to time, the “Credit Agreement”) among the Company, the lenders from time to time party thereto (the “Lenders”) and the Credit Collateral Agent pursuant to which the Lenders have made extensions of credit to the Company.

Reference is made to that certain [Security] Agreement, dated as of                     (as amended, modified, supplemented or restated and in effect from time to time, the “Credit Agreement Security Agreement”), among the Company [, the other Grantors from time to time party thereto] and the Credit Collateral Agent pursuant to which the Company [and such Grantors] granted a security interest in the Credit Agreement Collateral described therein to secure the Credit Obligations (as defined below).

Each of the Credit Collateral Agent (on behalf of the Credit Agreement Secured Parties) and the Notes Collateral Agent (on behalf of the Notes Secured Parties) and, by their acknowledgment hereof, the Grantors, desire to agree to the relative priority of Liens on the Common Collateral and certain other rights, priorities and interests as provided herein.

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AGREEMENT

NOW THEREFORE, or good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, he parties hereto agree as follows:

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ARTICLE I

DEFINITIONS

SECTION 1.01 Certain Defined Terms. As used in this Agreement, the following terms have the meanings specified below:

“Agreement” has the meaning assigned to such term in the preamble hereto.

“Affiliate” means, with respect to a specified Person, any other Person that directly or indirectly through one or more intermediaries Controls, is Controlled by or is under common Control with the Person specified.

“Bailee Secured Party” has the meaning assigned to such term in Section 4.01(a).

“Bankruptcy Code” means Title 11 of the United States Code, as amended.

“Bankruptcy Law” means the Bankruptcy Code and any similar Federal, state or foreign law for the relief of debtors.

“Capital Stock” means, as to any Person that is a corporation, the authorized shares of such Person’s capital stock, including all classes of common, preferred, voting and nonvoting capital stock, and, as to any Person that is not a corporation or an individual, the membership or other ownership interests in such Person, including the right to share in profits and losses, the right to receive distributions of cash and other property, and the right to receive allocations of items of income, gain, loss, deduction and credit and similar items from such Person, whether or not such interests include voting or similar rights entitling the holder thereof to exercise Control over such Person, collectively with, in any such case, all warrants, options and other rights to purchase or otherwise acquire, and all other instruments convertible into or exchangeable for, any of the foregoing.

“Collateral” shall mean all property now owned or hereafter acquired by any Grantor, whether real, personal or mixed, which constitutes Credit Agreement Collateral or Notes Collateral.

“Collateral Agent” shall mean the Credit Collateral Agent and the Notes Collateral Agent.

“Common Collateral” means, at any time, Intellectual Property (and proceeds (as defined in the Uniform Commercial Code) thereof) that constitutes Collateral in which a Lien is granted or purported to be granted both Secured Parties (including as a result of the agreements set forth in Section 4.01).

“Company” has the meaning assigned to such term in the preamble hereto.

“Control” means the possession, directly or indirectly, of the power (a) to vote more than 50% of the securities having ordinary voting power for the election of directors (or any similar governing body) of a Person, or (b) to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power or by contract. The terms “Controlling” and “Controlled” have meanings correlative thereto.

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“Credit Agreement” has the meaning assigned to such term in the Recitals hereto.

“Credit Agreement Collateral” means all “Collateral” as defined in the Credit Agreement Security Agreement as in effect on the date hereof.

“Credit Agreement Secured Parties” means the Credit Collateral Agent and the Lenders [and any Affiliate of a Lender that has provided [Bank Products (as defined in the Credit Agreement) or Cash Management Services (as defined in the Credit Agreement).]

“Credit Agreement Security Agreement” has the meaning assigned to such term in the Recitals hereto.

“Credit Collateral Agent” has the meaning assigned to that term in the preamble to this Agreement and shall include any successor thereto.

“Credit Collateral Documents” means all “Security Documents” as defined in the Credit Agreement, and all other security agreements and other collateral documents executed and delivered in connection with the Credit Agreement, in each case as the same may be amended, supplemented, restated or otherwise modified from time to time in accordance with the terms thereof.

“Credit Documents” means the Credit Agreement, the Credit Collateral Documents and all other agreements, instruments, documents and certificates, now or hereafter executed by or on behalf of any Grantor or any of its respective Subsidiaries or Affiliates, and delivered to the Credit Collateral Agent in connection with any of the foregoing or the Credit Agreement, in each case as the same may be amended, supplemented, restated or otherwise modified from time to time in accordance with the terms thereof.

“Credit Obligations” means all obligations of every nature of each Grantor from time to time owed to any Credit Agreement Secured Party under any Credit Document [or under any agreement in respect of Bank Products or Cash Management Services], whether for principal, interest (including interest, fees and expenses which, but for the filing of a petition in bankruptcy with respect to such Grantor, would have accrued on any Credit Agreement Obligation, whether or not a claim is allowed against such Grantor for such interest, fees or expenses in the related bankruptcy proceeding), reimbursement of amounts drawn under letters of credit, fees, expenses, indemnification or otherwise, and all other amounts owing or due under the terms of the Credit Agreement Documents [or under any agreement in respect of Bank Products or Cash Management Services], as amended, restated, modified, renewed, refunded, replaced or refinanced in whole or in part from time to time in accordance with the terms thereof and including, in any event, all “Obligations” (as defined in the Credit Agreement as in effect on the date hereof).

“Discharge” means, with respect to any Obligations, (a) payment in full in cash of the principal of and interest on (including interest accruing during the pendency of any Insolvency or Liquidation Proceeding, regardless of whether allowed or allowable in such Insolvency or Liquidation Proceeding), and premium, if any, on, all Obligations outstanding under the

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applicable Secured Credit Documents, and payment in full of all other Obligations that are due and payable or otherwise accrued and owing at or prior to the time such principal and interest are paid.

“Excess Credit Obligations” means any and all Credit Obligations that are in excess of $150.0 million.

“Grantors” means, at any time, the Company and each Subsidiary of the Company that, at such time, pursuant to the Credit Documents or the Notes Documents, as applicable, have granted a Lien on any of its assets to secure any Obligations.

“Impairment” has the meaning assigned to such term in Section 2.02.

“Insolvency or Liquidation Proceeding” means:

(a) any case commenced by or against any Grantor under any Bankruptcy Law, any other proceeding for the reorganization, receivership, recapitalization or adjustment or marshalling of the assets or liabilities of any Grantor, any receivership or assignment for the benefit of creditors relating to any Grantor or its assets or any similar case or proceeding relative to the Company or its creditors or its assets, as such, in each case whether or not voluntary;

(b) any liquidation, dissolution, marshalling of assets or liabilities, assignment for the benefit of creditors or other winding up of or relating to any Grantor or its assets, in each case whether or not voluntary and whether or not involving bankruptcy or insolvency and whether or not in a court supervised proceeding; or

(c) any other proceeding of any type or nature in which substantially all claims of creditors of any Grantor are determined and any payment or distribution is or may be made on account of such claims.

“Intellectual Property” means, with respect to any Person, all patents, patent applications and like protections, including improvements divisions, continuation, renewals, reissues, extensions and continuations in part of the same, trademarks, trade names, trade styles, trade dress, service marks, logos and other business identifiers and, to the extent permitted under applicable law, any applications therefor, whether registered or not, and the goodwill of the business of such Person connected with and symbolized thereby, copyright rights, copyright applications, copyright registrations and like protections in each work of authorship and derivative works, whether published or unpublished, technology, know-how and processes, operating manuals, trade secrets, computer hardware and software, rights to unpatented inventions and all applications and licenses therefor, used in or necessary for the conduct of business by such Person and all claims for damages by way of any past, present or future infringement of any of the foregoing.

“Intervening Creditor” has the meaning assigned to such term in Section 2.02.

“Intervening Lien” has the meaning assigned to such term in Section 2.02.

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“Lenders” has the meaning assigned to such term in the Recitals to this Agreement and shall include any successor thereto.

“Lien” means, with respect to any asset, (a) any mortgage, deed of trust, lien (statutory or otherwise), pledge, hypothecation, encumbrance, collateral assignment, charge or security interest in, on or of such asset and (b) the interest of a vendor or a lessor under any conditional sale agreement, capital lease or title retention agreement (or any financing lease having substantially the same economic effect as any of the foregoing) relating to such asset.

“Notes Collateral” means all of the assets and property of any Notes Credit Party, whether real, personal or mixed, with respect to which a Lien is granted (or purported to be granted) as security for any Notes Obligations.

“Notes Collateral Agent” has the meaning assigned to that term in the preamble to this Agreement and shall include any successor thereto as well as any Person designated as the “Notes Collateral Agent” or “Collateral Agent” under the Indenture.

“Notes Credit Parties” means the Company and each Notes Guarantor.

“Notes Documents” means the Indenture, the Senior Secured Notes, the Notes Security Documents and those other ancillary agreements as to which the Notes Collateral Agent or any other Notes Secured Party is a party or a beneficiary (including any intercreditor or joinder agreements) and all other agreements, instruments, documents and certificates, now or hereafter executed by or on behalf of any Notes Credit Party or any of its respective Subsidiaries or Affiliates, and delivered to the Notes Collateral Agent or the Trustee, in connection with any of the foregoing or any Notes Document, in each case as the same may be amended, supplemented, restated, replaced or otherwise modified from time to time in accordance with the terms thereof.

“Notes Guarantor” has the meaning set forth in the Indenture.

“Notes Obligations” means all obligations outstanding under the Senior Secured Notes and the other Notes Documents, and shall, in any event, include all “Secured Obligations” (as defined in the Notes Security Agreement as in effect on the date hereof). “Notes Obligations” shall include all obligations of every nature of each Notes Credit Party from time to time owed to the Notes Collateral Agent, the Notes Secured Parties or any of them under any Notes Document, whether for principal, interest (including interest, fees and expenses which, but for the filing of a petition in bankruptcy with respect to such Notes Credit Party, would have accrued on any Notes Obligation, whether or not a claim is allowed against such Notes Credit Partyfor such interest, fees or expenses in the related bankruptcy proceeding), fees, expenses, indemnification or otherwise, and all other amounts owing or due under the terms of any Notes Documents, as amended, restated, modified, renewed, refunded, replaced or refinanced in whole or in part from time to time in accordance with the terms thereof.

“Notes Secured Parties” means (i) so long as the Senior Secured Notes are outstanding, the Trustee and the holders of the Senior Secured Notes (including any additional Senior Secured Notes subsequently issued under and in compliance with the terms of the Indenture), (ii) the Notes Collateral Agent and (iii) the holders from time to time of any other Notes Obligations.

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“Notes Security Agreement” has the meaning assigned to such term in the Recitals hereto.

“Notes Security Documents” means the Notes Security Agreement and all other “Security Documents” as defined in the Indenture and all other security agreements, mortgages, deeds of trust and other collateral documents executed and delivered in connection with the Indenture, in each case as the same may be amended, supplemented, restated, replaced or otherwise modified from time to time in accordance with the terms thereof.

“Obligations” means the Credit Obligations and/or the Notes Obligations, as applicable.

“Person” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, governmental authority or other entity.

“Proceeds” has the meaning assigned to such term in Section 2.01(b).

“Secured Parties” means, collectively, the Notes Secured Parties and the Credit Secured Parties.

“Subsidiary” means with respect to any Person (the “parent”) at any date, any corporation, limited liability company, partnership, association or other entity (a) of which Capital Stock representing more than 50% of the ordinary voting power or, in the case of a partnership, more than 50% of the general partnership interests are, as of such date, owned, Controlled or held, or (b) that is, as of such date, otherwise Controlled, by the parent or one or more subsidiaries of the parent or by the parent and one or more subsidiaries of the parent.

SECTION 1.02 Terms Generally. The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”. The word “will” shall be construed to have the same meaning and effect as the word “shall”. Unless the context requires otherwise, any definition of or reference to any agreement, instrument, other document, statute or regulation herein shall be construed as referring to such agreement, instrument, other document, statute or regulation as from time to time amended, supplemented or otherwise modified, (b) any reference herein to any Person shall be construed to include such Person’s successors and assigns, but shall not be deemed to include the subsidiaries of such Person unless express reference is made to such subsidiaries, (c) the words “herein”, “hereof” and “hereunder”, and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (d) all references herein to Articles and Sections shall be construed to refer to Articles, and Sections of this Agreement and (e) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.

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ARTICLE II

LIEN PRIORITIES; PROCEEDS

SECTION 2.01 Relative Priorities.

(a) Notwithstanding (i) the date, time, method, manner, or order of grant, attachment, or perfection (including any defect or deficiency or alleged defect or deficiency in any of the foregoing) of any Liens granted to the Credit Collateral Agent or the Lenders in respect of all or any portion of the Collateral or of any Liens granted to the Notes Collateral Agent or the other Notes Secured Parties in respect of all or any portion of the Collateral and regardless of how any such Lien was acquired (whether by grant, statute, operation of law, subrogation or otherwise), (ii) the order or time of filing or recordation of any document or instrument for perfecting the Liens in favor of the Credit Collateral Agent or the Notes Collateral Agent (or Lenders or Notes Secured Parties) in any Collateral, (iii) any provision of the Uniform Commercial Code, the Bankruptcy Code or any other applicable law, or of the Credit Documents or the Notes Documents, (iv) whether the Credit Collateral Agent or the Notes Collateral Agent, in each case, either directly or through agents, holds possession of, or has control over, all or any part of the Collateral, (v) the fact that any such Liens in favor of the Credit Collateral Agent or the Lenders or the Notes Collateral Agent or the Notes Secured Parties securing any of the Credit Agreement Obligations or Notes Obligations, respectively, are (x) subordinated to any Lien securing any obligation of any Grantor other than the Notes Obligations or the Credit Obligations, respectively, or (y) otherwise subordinated, voided, avoided, invalidated or lapsed, or (vi) any other circumstance of any kind or nature whatsoever (but, in each case, subject to Section 2.01(b) and Section 2.02), each Secured Party agrees that Liens on any Common Collateral securing the Credit Obligations and the Notes Obligations shall be of equal priority.

(b) Each Secured Party agrees that, notwithstanding (x) any provision of any Credit Document or Notes Document to the contrary (but subject to Section 2.02) and (y) the date, time, method, manner or order of grant, attachment or perfection of any Lien on any Common Collateral securing any Credit Obligation or Notes Obligation, and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, any other applicable law or any Credit Document or Notes Document, or any other circumstance whatsoever (but, in each case, subject to Section 2.02), if (i) such Secured Party takes any action to enforce rights or exercise remedies in respect of any Common Collateral (including any such action referred to in Section 3.01(a)), or (ii) any distribution (whether in cash, securities or other property) is made in respect of any Common Collateral in any Insolvency or Liquidation Proceeding of the Company or any other Grantor, then the proceeds of any sale, collection or other liquidation of any Common Collateral obtained by such Secured Party on account of such enforcement of rights or exercise of remedies, and any such distributions or payments received by such Secured Party (all such proceeds, distributions and payments being collectively referred to as “Proceeds”), shall be applied as follows:

(i) FIRST, to the payment of reasonable costs and expenses, including all amounts expended to preserve the value of the Common Collateral, of foreclosure or suit, if any, and of such sale and the exercise of any other rights or remedies, and of all proper fees, expenses, liability and advances, including reasonable legal expenses and attorneys’ fees, incurred or made under any Credit Document or Notes Document by any Secured Party;

(ii) SECOND, subject to Section 2.02, to the payment in full of all other Credit Obligations (other than Excess Credit Obligations) and Notes Obligations secured by a Lien on

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such Common Collateral at the time due and payable (the amounts so applied to be distributed, as among such Credit Obligations and Notes Obligations ratably in accordance with the amounts of the Credit Obligations (other than Excess Credit Obligations) and Notes Obligations outstanding on the date of such application);

(iii) THIRD, after payment in full of the Credit Obligations (other than Excess Credit Obligations) and Notes Obligations, to the payment in full of the Excess Credit Obligations in accordance with the applicable Credit Documents;

(iv) FOURTH, after payment in full of all the Excess Credit Obligations, to the Company or its successors or assigns, as their interests may appear, or as a court of competent jurisdiction may direct.

(c) It is acknowledged that the Credit Obligations and the Notes Obligations may, subject to the limitations set forth in the then extant Credit Documents or Notes Documents, as applicable, be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, refinanced or otherwise amended or modified from time to time, all without affecting the priorities set forth in Section 2.01(b) or the provisions of this Agreement defining the relative rights of the Secured Parties.

(d) Neither Collateral Agent shall be required to marshal any present or future collateral security (including, but not limited to, the Common Collateral) for, or other assurances of payment of, the Credit Obligations or the Notes Obligations, as applicable, or any of them or to resort to such collateral security or other assurances of payment in any particular order. To the extent it may lawfully do so, each Grantor agrees that it will not invoke any law relating to the marshaling of collateral which might cause delay in or impede the enforcement of any Secured Party’s rights and remedies under any Secured Credit Document, and to the extent it lawfully may, each Grantor hereby irrevocably waives the benefit of such laws.

(e) The Credit Collateral Agent, for and on behalf of itself and the Lenders, acknowledges and agrees that, prior hereto, Notes Collateral Agent, for the benefit of itself and the Notes Secured Parties, has been granted Liens upon all of the Common Collateral in which the Credit Collateral Agent has also been granted Liens and the Credit Collateral Agent hereby consents thereto. The Notes Collateral Agent, for and on behalf of itself and the Notes Secured Parties, acknowledges and agrees that, concurrently herewith, the Credit Collateral Agent, for the benefit of itself and the Credit Secured Parties, has been granted Liens upon all of the Common Collateral in which the Notes Collateral Agent has been granted Liens and the Notes Collateral Agent hereby consents thereto.

SECTION 2.02 Impairments. It is the intention of the parties hereto that each Secured Party bears the risk of any determination by a court of competent jurisdiction that (i) any Obligations held by such Secured Party are unenforceable under applicable law or are subordinated to any other obligations, (ii) such Secured Party does not have a Lien on any of the Common Collateral and/or (iii) any Person (other than any Secured Party) has a Lien on any Common Collateral that is senior in priority to the Lien of such Secured Party on such Common Collateral, but junior to the Lien of the other Secured Party on such Common Collateral (any such Lien being referred to as an “Intervening Lien”, and any such Person being referred to as an

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“Intervening Creditor”) (any condition with respect to Obligations of such Secured Party being referred to as an “Impairment”). In the event an Impairment exists with respect to the Obligations of any Secured Party, the results of such Impairment shall be borne solely by such Secured Party, and the rights of such Secured Party (including the right to receive distributions in respect of Obligations pursuant to Section 2.01(b)) set forth herein shall be modified to the extent necessary so that the results of such Impairment are borne solely by such Secured Party. In furtherance of the foregoing, in the event Obligations of any Secured Party shall be subject to an Impairment in the form of an Intervening Lien of any Intervening Creditor, the value of any Common Collateral or Proceeds that are allocated to such Intervening Creditor shall be deducted solely from the Common Collateral or Proceeds to be distributed in respect of Obligations owing to such Secured Party.

SECTION 2.03 Payment Over. Each Secured Party agrees that if such Secured Party shall at any time obtain possession of any Common Collateral or receive any Proceeds (other than as a result of any application of Proceeds pursuant to Section 2.01(b)), (i) such Secured Party shall promptly inform the other Secured Parties thereof, (ii) such Secured Party shall hold such Common Collateral or Proceeds for the benefit of the other Secured Parties pursuant to Section 2.01(b) and (iii) in the case of any such Proceeds, such Proceeds shall be applied in accordance with Section 2.01(b) as promptly as practicable.

SECTION 2.04 Determinations with Respect to Amounts of Obligations and Liens. Whenever any Collateral Agent shall be required, in connection with the exercise of its rights or the performance of its obligations hereunder, to determine the existence or amount of any Obligations, or the Common Collateral subject to any Lien securing the Obligations (and whether such Lien constitutes a valid and perfected Lien), it may request that such information be furnished to it in writing by the other Collateral Agent and shall be entitled to make such determination on the basis of the information so furnished; provided that if, notwithstanding the request of any Collateral Agent, the other Collateral Agent shall fail or refuse reasonably promptly to provide the requested information, such Collateral Agent shall be entitled to make any such determination by such method as it may, in the exercise of its good faith judgment, determine, including by reliance upon a certificate of an officer of the Company. Each Collateral Agent may rely conclusively, and shall be fully protected in so relying, on any determination made by it in accordance with the provisions of the preceding sentence (or as otherwise directed by a court of competent jurisdiction) and shall have no liability to the Company, any Collateral Agent or any other Person as a result of such determination or any action taken or not taken pursuant thereto.

SECTION 2.05 Exculpatory Provisions. No Collateral Agent shall be liable for any action taken or omitted to be taken by such Collateral Agent with respect to any Common Collateral in accordance with the provisions of this Agreement.

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ARTICLE III

RIGHTS AND REMEDIES; MATTERS RELATING TO COMMON COLLATERAL

SECTION 3.01 Exercise of Rights and Remedies.

(a) Subject to paragraph (b) of this Section, Section 2.01(b) and Section 4.01(a), nothing in this Agreement shall affect the ability of any Secured Party (i) to enforce any rights and exercise any remedies with respect to any Common Collateral available under any Credit Document, any Notes Document or applicable law, including any right of set-off and any determinations regarding the release of Liens on, or any sale, transfer or other disposition of, any Common Collateral, or any other rights or remedies available to a secured creditor under the Uniform Commercial Code of any jurisdiction, the Bankruptcy Code or any other Bankruptcy Law or (ii) to commence any action or proceeding with respect to such rights or remedies (including any foreclosure action or proceeding or any Insolvency or Liquidation Proceeding). Subject to paragraph (b) of this Section and Section 4.01(a), any such exercise of rights and remedies by any Secured Party may be made in such order and in such manner as such Secured Party may, subject to the provisions of the applicable Credit Documents or Notes Documents, determine in its sole discretion. In addition, (A) in any Insolvency or Liquidation Proceeding commenced by or against any Grantor, each Secured Party may file a proof of claim or statement of interest with respect to the applicable obligations thereto, (B) in any Insolvency or Liquidation Proceeding commenced by or against any Grantor, each Secured Party may file any necessary or appropriate responsive pleadings in opposition to any motion, adversary proceeding or other pleading filed by any Person objecting to or otherwise seeking disallowance of the claim or Lien of Secured Party, (C) each Secured Party may file any pleadings, objections, motions, or agreements which assert rights available to unsecured creditors of any Grantor arising under any Insolvency or Liquidation Proceeding or applicable nonbankruptcy law, and (D) each Secured Party may vote on any plan of reorganization in any Insolvency or Liquidation Proceeding of any Grantor, in each case (A) through (D) above to the extent such action is not inconsistent with, or could not result in a resolution inconsistent with, the terms of this Agreement.

(b) Notwithstanding paragraph (a) of this Section:

(i) each Collateral Agent shall remain subject to, and bound by, all covenants or agreements made herein by such Collateral Agent;

(ii) each Collateral Agent agrees that, prior to the commencement of any enforcement of rights or any exercise of remedies with respect to any Common Collateral by such Collateral Agent, such Collateral Agent shall provide prior written notice thereof to the other Collateral Agent, such notice to be provided as far in advance of such commencement as reasonably practicable, and shall regularly inform the other Collateral Agent of developments in connection with such enforcement or exercise; and

(iii) subject to the terms and conditions of the applicable Credit Documents or Notes Documents, each Collateral Agent agrees that it shall cooperate in a commercially reasonable manner with the other Collateral Agent in any enforcement of rights or any exercise of remedies with respect to any Common Collateral.

SECTION 3.02 Prohibition on Contesting Liens. Each Secured Party agrees that it will not, and each Secured Party hereby waives any right to, contest or support any other Person in contesting, in any proceeding (including any Insolvency or Liquidation Proceeding), the perfection, priority, validity, attachment or enforceability of a Lien held by or on behalf of any other Secured Party in all or any part of the Common Collateral; provided that nothing in this Agreement shall be construed to prevent or impair the rights of any Secured Party to enforce this Agreement.

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SECTION 3.03 Prohibition on Challenging this Agreement. Each Collateral Agent agrees that it will not attempt, directly or indirectly, whether by judicial proceedings or otherwise, to challenge the enforceability of any provision of this Agreement; provided that nothing in this Agreement shall be construed to prevent or impair the rights of any Collateral Agent to enforce this Agreement.

SECTION 3.04 Release of Liens. The parties hereto agree and acknowledge that the release of Liens on any Common Collateral securing Obligations, whether in connection with a sale, transfer or other disposition of such Common Collateral or otherwise, shall be governed by and subject to the Credit Documents or the Notes Documents, as applicable, and that nothing in this Agreement shall be deemed to amend or affect the terms of the Credit Documents or the Notes Documents with respect thereto; provided that if, at any time any Common Collateral is transferred to a third party or otherwise disposed of, in each case, in connection with any enforcement by the applicable Collateral Agent in accordance with the provisions of this Agreement, then (whether or not any Insolvency or Liquidation Proceeding is pending at the time) the Liens in favor of the other Collateral Agent upon such Common Collateral will automatically be released and discharged upon final conclusion of foreclosure proceeding as and when, but only to the extent, such Liens on the Common Collateral of the Collateral Agent enforcing its remedies in connection with such foreclosure are released and discharged; provided that any proceeds of any Common Collateral realized therefrom shall be applied pursuant to Section 2.01(b) hereof. Each Collateral Agent agrees to execute and deliver (at the sole cost and expense of the Company) all such authorizations and other instruments as shall reasonably be requested by the other Collateral Agent to evidence and confirm any release of Common Collateral provided for in this Section.

ARTICLE IV

COLLATERAL

SECTION 4.01 Bailment for Perfection of Security Interests.

(a) Each Collateral Agent agrees that if it shall at any time hold a Lien on any Common Collateral that can be perfected by the possession or control of such Common Collateral or of any deposit, securities or other account in which such Common Collateral is held, and if such Common Collateral or any such account is in fact in the possession or under the control of such Collateral Agent, or of agents or bailees of such Collateral Agent (such Common Collateral being referred to herein as the “Controlled Common Collateral”), such Collateral Agent shall, solely for the purpose of perfecting the Liens of the other Collateral Agent granted on such Common Collateral under the Credit Documents or the Notes Documents, as applicable, and subject to the terms and conditions of this Article, also hold such Controlled Common Collateral as gratuitous bailee for the other Collateral Agent (any Collateral Agent that shall be holding any Controlled Common Collateral as gratuitous bailee being referred to herein as the “Bailee Secured Party”). In furtherance of the foregoing, each Collateral Agent appoints each Bailee Secured Party as such Collateral Agent’s gratuitous bailee hereunder with respect to any Controlled Common Collateral that such Bailee Secured Party possesses or controls at any time solely for the purpose of perfecting a Lien on such Controlled Common Collateral.

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(b) In furtherance of the foregoing, the Company hereby grants a security interest in the Controlled Common Collateral to each Collateral Agent that possesses or controls Controlled Common Collateral as permitted in Section 4.01(a) for the benefit of the other Collateral Agent.

(c) The obligations and responsibilities of any Bailee Secured Party to the other Collateral Agent under this Article shall be limited solely to holding or controlling the applicable Controlled Common Collateral as gratuitous bailee and sub-agent in accordance with this Article.

ARTICLE V

OTHER AGREEMENTS

SECTION 5.01 Reinstatement. If, in any Insolvency or Liquidation Proceeding or otherwise, all or part of any payment with respect to the Obligations previously made shall be rescinded for any reason whatsoever (including an order or judgment for disgorgement of a preference or other avoidance action under the Bankruptcy Code, or any similar law), then the terms and conditions of this Agreement shall be fully applicable thereto until all the Obligations shall again have been satisfied in full.

SECTION 5.02 Notice of Acceptance and Other Waivers.

(a) All Credit Obligations at any time made or incurred by any Grantor shall be deemed to have been made or incurred in reliance upon this Agreement, and the Notes Collateral Agent, on behalf of itself and the Notes Secured Parties, hereby waives notice of acceptance, or proof of reliance by the Credit Collateral Agent or any Lender of this Agreement, and notice of the existence, increase, renewal, extension, accrual, creation, or non-payment of all or any part of the Credit Obligations. All Notes Obligations at any time made or incurred by any Grantor shall be deemed to have been made or incurred in reliance upon this Agreement, and the Credit Collateral Agent, on behalf of itself and the Lenders, hereby waives notice of acceptance, or proof of reliance, by the Notes Collateral Agent or any other Notes Secured Party of this Agreement, and notice of the existence, increase, renewal, extension, accrual, creation, or non-payment of all or any part of the Notes Obligations.

(b) None of the Credit Collateral Agent, any Lender, or any of their respective Affiliates, directors, officers, employees, or agents shall be liable to the Notes Collateral Agent, any other Notes Secured Party, or any of their respective Affiliates for failure to demand, collect, or realize upon any of the Collateral or any Proceeds, or for any delay in doing so, or shall be under any obligation to sell or otherwise dispose of any Collateral or Proceeds thereof or to take any other action whatsoever with regard to the Collateral or any part or Proceeds thereof, except as specifically provided in this Agreement. If the Credit Collateral Agent or any Lender honors (or fails to honor) a request by the Company for an extension of credit pursuant to the Credit Agreement or any of the other Credit Documents, whether the Credit Collateral Agent or any Lender has knowledge that the honoring of (or failure to honor) any such request would constitute a default under the terms of the Indenture or any other Notes Document (but not a default under this Agreement) or an act, condition, or event that, with the giving of notice or the passage of

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time, or both, would constitute such a default, or if the Credit Collateral Agent or any Lender otherwise should exercise any of its contractual rights or remedies under any Credit Documents (subject to the express terms and conditions hereof), neither the Credit Collateral Agent nor any Lender shall have any liability whatsoever to the Notes Collateral Agent or any other Notes Secured Party as a result of such action, omission, or exercise (so long as any such exercise does not breach the express terms and provisions of this Agreement). The Credit Collateral Agent and the Lenders shall be entitled to manage and supervise their loans and extensions of credit under the Credit Agreement and any of the other Credit Documents as they may, in their sole discretion, deem appropriate, and may manage their loans and extensions of credit without regard to any rights or interests that the Notes Collateral Agent or any of the Notes Secured Parties have in the Collateral, except as otherwise expressly set forth in this Agreement. The Notes Collateral Agent, on behalf of itself and the Notes Secured Parties, agrees that neither the Credit Collateral Agent nor any Lender shall incur any liability as a result of a sale, lease, license, application, or other disposition of all or any portion of the Collateral or any Proceeds thereof, pursuant to the Credit Documents, so long as such disposition is conducted in accordance with mandatory provisions of applicable law and does not breach the provisions of this Agreement.

(c) None of the Notes Collateral Agent, any other Notes Secured Party or any of their respective Affiliates, directors, officers, employees, or agents shall be liable to the Credit Collateral Agent, any Lender, or any of their respective Affiliates for failure to demand, collect, or realize upon any of the Collateral or any Proceeds, or for any delay in doing so, or shall be under any obligation to sell or otherwise dispose of any Collateral or Proceeds thereof or to take any other action whatsoever with regard to the Collateral or any part or Proceeds thereof, except as specifically provided in this Agreement. If the Notes Collateral Agent or any other Notes Secured Party honors (or fails to honor) a request by any Grantor for an extension of credit pursuant to the Indenture or any of the other Notes Documents, whether the Notes Collateral Agent or any other Notes Secured Party has knowledge that the honoring of (or failure to honor) any such request would constitute a default under the terms of the Credit Agreement or any other Credit Document (but not a default under this Agreement) or an act, condition, or event that, with the giving of notice or the passage of time, or both, would constitute such a default, or if the Notes Collateral Agent or any other Notes Secured Party otherwise should exercise any of its contractual rights or remedies under the Notes Documents (subject to the express terms and conditions hereof), neither the Notes Collateral Agent nor any other Notes Secured Party shall have any liability whatsoever to the Credit Collateral Agent or any Lender as a result of such action, omission, or exercise (so long as any such exercise does not breach the express terms and provisions of this Agreement). The Notes Collateral Agent and the other Notes Secured Parties shall be entitled to manage and supervise their loans and extensions of credit under the Notes Documents as they may, in their sole discretion, deem appropriate, and may manage their loans and extensions of credit without regard to any rights or interests that the Credit Collateral Agent or any Lender has in the Collateral, except as otherwise expressly set forth in this Agreement. The Credit Collateral Agent, on behalf of itself and the Lenders, agrees that none of the Notes Collateral Agent or the other Notes Secured Parties shall incur any liability as a result of a sale, lease, license, application, or other disposition of all or any portion of the Collateral or any Proceeds thereof, pursuant to the Notes Documents, so long as such disposition is conducted in accordance with mandatory provisions of applicable law and does not breach the provisions of this Agreement.

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SECTION 5.03 Modifications to Credit Documents and Notes Documents.

(a) The Notes Collateral Agent, on behalf of itself and the other Notes Secured Parties, hereby agrees that, without affecting the obligations of the Notes Collateral Agent and the other Notes Secured Parties hereunder, the Credit Collateral Agent and the Lenders may, at any time and from time to time, in their sole discretion without the consent of or notice to the Notes Collateral Agent or any other Notes Secured Party (except to the extent such notice or consent is required pursuant to the express provisions of this Agreement), and without incurring any liability to the Notes Collateral Agent or any other Notes Secured Party or impairing or releasing the subordination provided for herein, amend, restate, supplement, replace, refinance, extend, consolidate, restructure, or otherwise modify any of the Credit Documents in any manner whatsoever (other than in a manner which would have the effect of contravening the terms of this Agreement) including, without limitation, to:

(i) change the manner, place, time, or terms of payment or renew, alter or increase, all or any of the Credit Obligations or otherwise amend, restate, supplement, or otherwise modify in any manner, or grant any waiver or release with respect to, all or any part of the Credit Obligations or any of the Credit Documents;

(ii) retain or obtain a Lien on any property of any Person to secure any of the Credit Obligations, and in connection therewith to enter into any additional Credit Documents;

(iii) amend, or grant any waiver, compromise, or release with respect to, or consent to any departure from, any guaranty or other obligations of any Person obligated in any manner under or in respect of the Credit Obligations;

(iv) release its Lien on any Collateral or other property;

(v) exercise or refrain from exercising any rights against any Grantor, or any other Person;

(vi) retain or obtain the primary or secondary obligation of any other Person with respect to any of the Credit Obligations; and

(vii) otherwise manage and supervise the Credit Obligations as the Credit Collateral Agent shall deem appropriate.

(b) The Credit Collateral Agent, on behalf of itself and the Lenders, hereby agrees that, without affecting the obligations of the Credit Collateral Agent and the Lenders hereunder, the Notes Collateral Agent and the Notes Secured Parties may, at any time and from time to time, in their sole discretion without the consent of or notice to the Credit Collateral Agent or any Lender (except to the extent such notice or consent is required pursuant to the express provisions of this Agreement), and without incurring any liability to the Credit Collateral Agent or any Lender or impairing or releasing the subordination provided for herein, amend, restate, supplement, replace, refinance, extend, consolidate, restructure, or otherwise modify any of the Notes Documents in any manner whatsoever (other than in a manner which would have the effect of contravening the terms of this Agreement), including, without limitation, to:

(i) change the manner, place, time, or terms of payment or renew, alter or increase, all or any of the Notes Obligations or otherwise amend, restate, supplement, or otherwise modify in any manner, or grant any waiver or release with respect to, all or any part of the Notes Obligations or any of the Notes Documents;

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(ii) retain or obtain a Lien on any property of any Person to secure any of the Notes Obligations, and in connection therewith to enter into any additional Notes Documents;

(iii) amend, or grant any waiver, compromise, or release with respect to, or consent to any departure from, any guaranty or other obligations of any Person obligated in any manner under or in respect of the Notes Obligations;

(iv) release its Lien on any Collateral or other property;

(v) exercise or refrain from exercising any rights against any Grantor, or any other Person;

(vi) retain or obtain the primary or secondary obligation of any other Person with respect to any of the Notes Obligations; and

(vii) otherwise manage and supervise the Notes Obligations as the Notes Collateral Agent shall deem appropriate.

SECTION 5.04 Reorganization Modifications. In the event the Obligations are modified pursuant to applicable law, including Section 1129 of the Bankruptcy Code, any reference to the Obligations or the Credit Documents or Notes Documents, as applicable, shall refer to such obligations or such documents as so modified.

SECTION 5.05. Further Assurances. Each Collateral Agent agrees that it will execute, or will cause to be executed, such reasonable further documents, agreements and instruments, and take all such reasonable further actions, as may be required under any applicable law, or which any Collateral Agent may reasonably request, to effectuate the terms of this Agreement.

ARTICLE VI

NO RELIANCE; NO LIABILITY

SECTION 6.01 No Warranties or Liability.

(a) Each Collateral Agent acknowledges and agrees that the other Collateral Agent has not made any express or implied representation or warranty, including with respect to the execution, validity, legality, completeness, collectability or enforceability of any of the Credit Documents or Notes Documents, the ownership of any Common Collateral or the perfection or priority of any Liens thereon. Each Collateral Agent will be entitled to manage and supervise their loans and other extensions of credit in the manner set forth in their Credit Documents or Notes Documents, as applicable. No Collateral Agent shall, by reason of this Agreement, any Credit Document, any Notes Document or any other document, have a fiduciary relationship or other implied duties in respect of any other Collateral Agent.

(b) No Collateral Agent shall have any express or implied duty to the other Collateral Agent to act or refrain from acting in a manner that allows, or results in, the occurrence or continuance of a default or an Event of Default under any Secured Credit Document (other than, in each case, this Agreement), regardless of any knowledge thereof that they may have or be charged with.

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ARTICLE VII

MISCELLANEOUS

SECTION 7.01 Notices. Except as otherwise provided herein, all notices, requests, demands, consents, instructions or other communications to or upon Company or any Collateral Agent under this Agreement shall be in writing and faxed, mailed or delivered to such party to the facsimile number or its address set forth below (or to such other facsimile number or address as the recipient of any notice shall have notified the other in writing). All such notices and communications shall be effective when sent by Federal Express or other overnight service of recognized standing, upon receipt; when mailed, by registered or certified mail, first class postage prepaid and addressed as aforesaid through the United States Postal Service, upon receipt; (c) when delivered by hand, upon delivery; and when faxed, upon confirmation of receipt:

(a) if to the Company at:

Bloom Energy Corporation

1299 Orleans Drive

Sunnyvale, California 94089

Attention: General Counsel

Telephone:

Facsimile:

(b) if to the Credit Collateral Agent, to it at:

[Name]

[address]

[address]

Attn:

Telephone:

Facsimile:

(c) if to the Notes Collateral Agent, to it at:

U.S. Bank National Association

633 West Fifth Street, 24th Floor

Los Angeles, CA 90071

Attn: Bradley Scarbrough

Facsimile: (213) 615-6197

Email: bradley.scarbrough@usbank.com

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Any party hereto may change its address or facsimile number for notices and other communications hereunder by notice to the other parties hereto.

SECTION 7.02 Waivers; Amendment.

(a) No failure or delay on the part of any party hereto in exercising any right or power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power.

(b) Neither this Agreement nor any provision hereof may be waived, amended or otherwise modified except pursuant to an agreement or agreements in writing entered into by each Collateral Agent, and, only if the rights or duties of any Grantor are directly affected thereby, the Grantors.

SECTION 7.03 Assignments. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.

SECTION 7.04 Effectiveness; Survival. This Agreement shall become effective when executed and delivered by the parties hereto. All covenants, agreements, representations and warranties made by any party in this Agreement shall be considered to have been relied upon by the other parties hereto and shall survive the execution and delivery of this Agreement. This Agreement shall continue in full force and effect notwithstanding the commencement of any Insolvency or Liquidation Proceeding against the Company or any other Grantor, and the parties hereto acknowledge that this Agreement is intended to be and shall be enforceable as a “subordination” agreement under Bankruptcy Code Section 510(a). All references herein to the Company shall apply to any trustee for such Person and such Person as a debtor-in-possession.

SECTION 7.05 Counterparts. This Agreement may be executed in counterparts, each of which shall constitute an original but all of which when taken together shall constitute a single contract. Delivery of an executed signature page to this Agreement by facsimile or other electronic transmission shall be as effective as delivery of a manually signed counterpart of this Agreement.

SECTION 7.06 Severability. If at any time any provision of this Agreement is or becomes illegal, invalid or unenforceable in any respect under the law of any jurisdiction, neither the legality, validity or enforceability of the remaining provisions of this Agreement nor the legality, validity or enforceability of such provision under the law of any other jurisdiction shall in any way be affected or impaired thereby.

SECTION 7.07 Governing Law; Jurisdiction. (a) This Agreement shall be governed by and construed in accordance with the laws of the State of New York.

(b) Each Collateral Agent and the Company hereby irrevocably and unconditionally submits, for itself and its property, to the nonexclusive jurisdiction of the courts of the State of New York sitting in the City of New York, Borough of Manhattan, and of the United States District Court for the Southern District of New York, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement, or for recognition or

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enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in such New York State or, to the extent permitted by law, in such Federal court. Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Agreement shall affect any right that either Collateral Agent may otherwise have to bring any action or proceeding relating to this Agreement or any other Credit Document or Notes Document against any Grantor or its properties in the courts of any jurisdiction.

(c) Each Collateral Agent and each Grantor hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement in any court referred to in paragraph (b) of this Section. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.

SECTION 7.08 Construction. This Agreement is the result of negotiations among, and has been reviewed by, Secured Parties and their respective counsel. Accordingly, this Agreement shall be deemed to be the product of all parties hereto, and no ambiguity shall be construed in favor of or against any Collateral Agent.

SECTION 7.09 Provisions Solely to Define Relative Rights. The provisions of this Agreement are and are intended solely for the purpose of defining the relative rights of the Secured Parties in relation to one another. Except as expressly provided in this Agreement, none of the Company or any other creditor of any of the foregoing shall have any rights or obligations hereunder, and the Company may not rely on the terms hereof. Nothing in this Agreement is intended to or shall impair the obligations of the Company, which are absolute and unconditional, to pay the Obligations as and when the same shall become due and payable in accordance with their terms.

SECTION 7.10 Specific Performance. Each Collateral Agent may demand specific performance of this Agreement. Each Collateral Agent hereby irrevocably waives any defense based on the adequacy of a remedy at law and any other defense that might be asserted to bar the remedy of specific performance in any action which may be brought by the other Collateral Agent.

[SIGNATURE PAGE FOLLOWS]

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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the day and year first above written.

U.S. BANK NATIONAL ASSOCIATION, in its capacity as Notes Collateral Agent and not in any individual capacity
By:
	Name:
	Title:
[                    ], as Credit Collateral Agent
By:
	Name:
	Title:

ACKNOWLEDGMENT

Each Grantor hereby acknowledges that it has received a copy of this Agreement and consents thereto, agrees to recognize all rights granted thereby to the Credit Collateral Agent, the Lenders, the Notes Collateral Agent, and the Notes Secured Parties and will not do any act or perform any obligation which is not in accordance with the agreements set forth in this Agreement. Each Grantor further acknowledges and agrees that it is not an intended beneficiary or third party beneficiary under this Agreement and that the Credit Documents and Notes Documents remain in full force and effect as written. Without limitation to the foregoing, each Grantor agrees to take such further action and shall execute and deliver such additional documents and instruments (in recordable form, if requested) as the Credit Collateral Agent or the Notes Collateral Agent (or any of their respective agents or representatives) may reasonably request to effectuate the terms of and the lien priorities contemplated by the Intercreditor Agreement, including to cause any Person that becomes a Grantor after the date of the Intercreditor Agreement to execute and deliver to the Credit Collateral Agent and the Notes Collateral an acknowledgement in the form of this Acknowledgement on the date that such Person becomes a Grantor.

BLOOM ENERGY CORPORATION
By:
	Name:
	Title:
[name]
By:
	Name:
	Title:

EX-4

Exhibit 4.6

SECURITY AGREEMENT

THIS SECURITY AGREEMENT (as amended, modified, supplemented or restated and in effect from time to time, this “Agreement”), dated as of December 15, 2015, is made by and among Bloom Energy Corporation, a Delaware corporation (the “Company”), the Guarantors from time to time party hereto (the “Guarantors” and together with the Company, each a “Grantor” and collectively, the “Grantors”), and U.S. Bank National Association, in its capacity as collateral agent pursuant to the Indenture (as hereinafter defined) (in such capacity and together with any successors in such capacity, the “Collateral Agent”) for its own benefit and the benefit of the other Secured Parties.

WITNESSETH:

WHEREAS, reference is made to that certain Indenture, dated as of December 15, 2015 (as amended, modified, supplemented or restated and in effect from time to time, the “Indenture”, which term shall also include and refer to any additional issuance of notes under the Indenture), by and among, the Company, each Guarantor, U.S. Bank National Association, as trustee (together with its successors in such capacity, the “Trustee”), and the Collateral Agent, pursuant to which the Company is issuing its 5.0% Convertible Senior Secured PIK Notes due 2020 (together with any additional notes issued under the Indenture, the “Senior Secured Notes”).

WHEREAS, pursuant to the Indenture the Holders have appointed the Collateral Agent to act as its agent hereunder and the Collateral Agent has accepted such appointment.

WHEREAS, it is a condition to the issuance of the Senior Secured Notes that each Grantor executes and delivers this Agreement.

WHEREAS, this Agreement is made by the Grantors in favor of the Collateral Agent for the benefit of the Secured Parties to secure the payment and performance in full when due of the Secured Obligations.

AGREEMENT

NOW, THEREFORE, in consideration of the mutual conditions and agreements set forth in this Agreement, and for good and valuable consideration, the receipt of which is hereby acknowledged, the Grantors and the Collateral Agent, on its own behalf and on behalf of the other Secured Parties (and each of their respective successors or permitted assigns), hereby agree as follows:

ARTICLE 1

Definitions

SECTION 1.01 Generally. All references herein to the UCC shall mean the Uniform Commercial Code as in effect from time to time in the State of New York; provided, however, that if a term is defined in Article 9 of the UCC differently than in another Article thereof, the term shall have the meaning set forth in Article 9; provided, further, that, if by reason of mandatory provisions of law, perfection, or the effect of perfection or non-perfection, of the Security Interest in any Collateral or the availability of any remedy hereunder is governed by the Uniform Commercial Code as in effect in a jurisdiction other than New York, “UCC” means the Uniform Commercial Code as in effect in such other jurisdiction for purposes of the provisions hereof relating to such perfection or effect of perfection or non-perfection or availability of such remedy, as the case may be.

SECTION 1.02 Definition of Certain Terms Used Herein. Unless the context otherwise requires, all capitalized terms used but not defined herein shall have the meanings set forth in the Indenture. In addition, as used herein, the following terms shall have the following meanings:

“Accessions” shall have the meaning given that term in the UCC.

“Account Debtor” shall have the meaning given that term in the UCC.

“Account(s)” shall mean “accounts”, as defined in the UCC, and shall also mean a right to payment of a monetary obligation, whether or not earned by performance, (i) for property that has been or is to be sold, leased, licensed, assigned, or otherwise disposed of, (ii) for services rendered or to be rendered, or (iii) arising out of the use of a credit or charge card or information contained on or for use with the card.

“Blue Sky Laws” shall have the meaning assigned to such term in Section 6.01 of this Agreement.

“Chattel Paper” shall have the meaning given that term in the UCC.

“Collateral” shall mean all personal property of each Grantor, including, without limitation: all (a) Accounts, (b) Chattel Paper, (c) Commercial Tort Claims, (d) Deposit Accounts, (e) Documents, (f) Equipment, (g) General Intangibles (including Payment Intangibles and IP Collateral), (h) Goods, (i) Instruments, (j) Inventory, (k) Investment Property, (l) Software, (m) letters of credit, Letter-of-Credit Rights and Supporting Obligations, (n) money, policies and certificates of insurance, deposits, cash, or other property, (o) all books, records, and information relating to any of the foregoing ((a) through (n)) and/or to the operation of any Grantor’s business, and all rights of access to such books, records, and information, and all property in which such books, records, and information are stored, recorded and maintained (including customer lists, files, correspondence, tapes, computer programs, print-outs and computer records), (p) all accessions to, substitutions for, and all replacements, products, and cash and non-cash proceeds of the foregoing (including Stock Rights and proceeds of and unearned premiums with respect to insurance policies, and claims against any Person for loss, damage or destruction of any of the foregoing ((a) through (o)) or otherwise), (q) all liens, guaranties, rights, remedies, and privileges pertaining to any of the foregoing ((a) through (p)), including the right of stoppage in transit, and (s) any of the foregoing, whether now owned or now due, or in which any Grantor has an interest, or hereafter acquired, arising, or to become due, or in which any Grantor obtains an interest, and all products, Proceeds, substitutions, and Accessions of or to any of the foregoing; provided, however, that, notwithstanding the foregoing, the Collateral shall not include any Excluded Assets.

“Collateral Agent” shall have the meaning assigned to such term in the preamble of this Agreement.

“Collateral Agent’s Rights and Remedies” shall have the meaning assigned to such term in Section 8.08.

“Commercial Tort Claims” shall have the meaning given that term in the UCC and shall include, without limitation, the Commercial Tort Claims listed on Schedule II (as such schedule may be supplemented from time in accordance with Section 3.08).

“Commodity Account” shall have the meaning given that term in the UCC.

“Company” has the meaning given to that term in the preamble to this Agreement.

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“Control” shall have the meaning given that term in the UCC.

“Copyright Licenses” shall mean all agreements, whether written or oral, providing for the grant by or to any Grantor of any right under any Copyright.

“Copyright Office” shall mean the United States Copyright Office or any other federal governmental agency which may hereafter perform its functions.

“Copyrights” shall mean all copyrights and like protections in each work of authorship or derivative work thereof, whether registered or unregistered and whether published or unpublished, including, without limitation, the copyright registrations and copyright applications listed on Exhibit A annexed hereto and made a part hereof, together with all registrations and recordings thereof and all applications in connection therewith.

“Deposit Account” shall have the meaning given that term in the UCC and shall also include all demand, time, savings, passbook, or similar accounts maintained with a bank or other financial institution.

“Deposit Account Control Agreement” means an agreement reasonably satisfactory to the Collateral Agent (provided that an agreement that exposes the Collateral Agent to individual liability cannot be reasonably satisfactory to the Collateral Agent) among any Grantor, a banking institution holding such Grantor’s funds, and the Collateral Agent with respect to collection and control of all deposits and balances held in a deposit account maintained by any Grantor with such banking institution granting Control over such deposit account to the Collateral Agent.

“Documents” shall have the meaning given that term in the UCC.

“Equipment” shall mean “equipment,” as defined in the UCC, and shall also mean all furniture, machinery, office equipment, plant equipment, tools, dies, molds, and other goods, property, and assets which are used and/or were purchased for use in the operation or furtherance of a Grantor’s business, and any and all Accessions or additions thereto, and substitutions therefor.

“Excluded Assets” means (1) any interests in real property held by a Grantor as a lessee under a lease and any owned real property or fixtures; (2) any lease, license, permit, contract or agreement to which a Grantor is party if the grant of security interest therein to the Collateral Agent shall constitute or result in a breach, termination or default under such lease, license, permit, contract or agreement, other than to the extent that any such term would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the Uniform Commercial Code (or any successor provision or provisions) of any relevant jurisdiction or any other applicable law (including the Bankruptcy Code) or principles of equity; (3) any intent to use trademark application filed pursuant to Section 1(b) of the Lanham Act to the extent and until a statement of use or amendment to allege use is filed in connection therewith and accepted by the PTO and only if inclusion of such intent to use application in the Collateral prior to such time would result in the cancellation or invalidation of the alleged trademark; (4) any voting Capital Stock the pledge of which would cause more than 65% of the outstanding voting Capital Stock of any Foreign Subsidiary to be pledged; (5) any motor vehicles and other assets subject to certificates of title; (6) assets and personal property for which a pledge thereof or a security interest therein is prohibited by applicable laws (including any legally effective requirement to obtain the consent of any governmental authority) after giving effect to the applicable anti-assignment provisions of the Uniform Commercial Code of any applicable jurisdiction; (7) any specific assets that are subject to a Lien permitted by clause (b), (e), (f), (g), (m), (n) (solely in case of cash and cash equivalents pledged as cash collateral for any Hedging Obligations), (o), (t)(iv) or (y) of the definition of Permitted Liens to the extent that a Lien on such assets to secure the Secured

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Obligations is prohibited by or requires consent under the documentation relating to the obligations secured by such Lien, (8) property as to which Liens are outstanding on the Issue Date to holders of debt for borrowed money, capital lease obligations or purchase money indebtedness (other than (i) Silicon Valley Bank, including pursuant to the Loan and Security Agreement, dated as of March 30, 2012, by and between Silicon Valley Bank and Bloom Energy Corporation and (ii) Liens arising under the Security Documents) so long as such Liens are in effect, (9) any Capital Stock outstanding on the Issue Date and pledged to holders of debt for borrowed money, capital lease obligations or purchase money indebtedness (other than (i) Silicon Valley Bank, including pursuant to the Loan and Security Agreement, dated as of March 30, 2012, by and between Silicon Valley Bank and Bloom Energy Corporation and (ii) Liens arising under the Security Documents) so long as such Liens are in effect, (10) Capital Stock in PPA Companies, (11) any Capital Stock in any Project Entities, (12) upon release pursuant to Section 17.04(a)(v) of the Indenture, Intellectual Property, and (13) any Capital Stock of Bloom Energy Japan Limited, a company formed under the laws of Japan, so long as the grant of a security interest therein is prohibited by Joint Venture Agreement, dated May 1, 2013, by and among Eco Production Preparatory Corporation, Bloom Energy Corporation, Appli Production Preparatory Corporation, and solely for certain provisions thereof, SoftBank Corp.

“Excluded Deposit Account” means, collectively, (a) all Deposit Accounts established or held (including sub-accounts) for the exclusive purpose of (and only containing funds for) funding payroll, payroll or employment taxes or employee benefits, or a “zero balance account”, (b) all accounts at any depository institution and its affiliates so long as the aggregate amount on deposit at such depository institution and its affiliates does not exceed in the aggregate $5.0 million at any time and (c) any Deposit Account located outside of the United States of America.

“Financing Statement” shall have the meaning given that term in the UCC.

“Fixtures” shall have the meaning given that term in the UCC.

“General Intangibles” shall have the meaning given that term in the UCC, and shall also include, without limitation, all: Payment Intangibles; rights to payment for credit extended; deposits; amounts due to any Grantor; credit memoranda in favor of any Grantor; warranty claims; tax refunds and abatements; insurance refunds and premium rebates; all means and vehicles of investment or hedging, including, without limitation, options, warrants, and futures contracts; records; customer lists; telephone numbers; goodwill; causes of action; judgments; rights to collect payments under any settlement or other agreement; rights of admission; licenses; franchises; rental contracts, including all rights of any Grantor to enforce same; permits, certificates of convenience and necessity, and similar rights granted by any governmental authority; and IP Collateral.

“Goods” shall have the meaning given that term in the UCC.

“Grantors” shall have the meaning assigned to such term in the preamble of this Agreement.

“Guarantors” shall have the meaning assigned to such term in the preamble of this Agreement.

“Indenture” shall have the meaning assigned to such term in the recitals of this Agreement.

“Instruments” shall have the meaning given that term in the UCC.

“Intellectual Property” shall mean all worldwide rights in and to the following: Patents, Copyrights, Trademarks, Licenses, trade secrets, know-how, technology, inventions (whether patent or not), rights in software, databases and data and other proprietary information, industrial design applications and registered industrial designs, and all other forms of intellectual property throughout the world.

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“Inventory” shall have the meaning given that term in the UCC, and shall also include, without limitation, all: (a) Goods which (i) are leased by a Person as lessor, (ii) are held by a Person for sale or lease or to be furnished under a contract of service, (iii) are furnished by a Person under a contract of service, or (iv) consist of raw materials, work in process, or materials used or consumed in a business; (b) Goods of said description in transit; (c) Goods of said description which are returned, repossessed or rejected; and (d) packaging, advertising, and shipping materials related to any of the foregoing.

“Investment Property” shall have the meaning given that term in the UCC.

“IP Collateral” shall mean all Copyrights, Patents, Trademarks, and all other Intellectual Property, all Licenses and all income, royalties, damages and payments now hereafter due and/or payable under and with respect to any of the foregoing, the right to sue for past, present and future infringements, misappropriations and dilutions of any of the foregoing, and all of the Grantors’ rights therein throughout the world.

“Issue Date” shall mean December 15, 2015.

“Letter-of-Credit Rights” shall have the meaning given that term in the UCC.

“Licenses” shall mean, collectively, the Copyright Licenses, Patent Licenses, Trademark Licenses, and any other license of Intellectual Property providing for the grant by or to any Grantor of any right to use Intellectual Property as such term is defined herein.

“Material Adverse Effect” shall mean any event, facts, or circumstances, which has a material adverse effect on (i) the business, assets, or financial condition of the Grantors and their subsidiaries taken as a whole, (ii) the validity or enforceability of this Agreement or the other Security Documents or the rights or remedies of the Secured Parties hereunder or thereunder or (iii) the attachment or, to the extent required hereby, perfection or priority of the Liens or security interests intended to be created hereunder, taken as a whole.

“Patent Licenses” shall mean all agreements, whether written or oral, providing for the grant by or to any Grantor of any right under any Patent.

“Patents” shall mean all patents and applications for patents, and the inventions, discoveries, designs and improvements therein disclosed or claimed, and any and all divisions, reissues and continuations, continuations-in-part, extensions, and reexaminations of said patents including, without limitation, the patents and patent applications listed on Exhibit B annexed hereto and made a part hereof.

“Payment Intangible” shall have the meaning given that term in the UCC and shall also mean any General Intangible under which the Account Debtor’s primary obligation is a monetary obligation.

“Pledged Collateral” means all Instruments, Securities and other Investment Property of the Grantors, whether or not physically delivered to the Collateral Agent pursuant to this Agreement.

“Proceeds” shall mean “proceeds,” as defined in the UCC, and shall also include each type of property described in the definition of Collateral.

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“PTO” shall mean the United States Patent and Trademark Office or any other federal governmental agency which may hereafter perform its functions.

“Responsible Officer” shall mean any officer of Collateral Agent with direct responsibility for the administration of the Indenture and this Agreement and also means, with respect to a particular corporate trust matter related to the Indenture or this Agreement, any other officer to whom such matter is referred because of his knowledge of and familiarity with the particular subject.

“Secured Obligations” shall mean, collectively, any principal, premium, interest (including any interest and fees accruing subsequent to the filing of a petition in bankruptcy, reorganization or similar proceeding at the rate provided for in the documentation with respect thereto, whether or not such interest or fees is an allowed claim under applicable state, federal or foreign law), penalties, fees, indemnifications, reimbursements (including reimbursement obligations with respect to letters of credit and banker’s acceptances), damages and other liabilities, and guarantees of payment of such principal, interest, penalties, fees, indemnifications, reimbursements, damages and other liabilities, payable under any of the Indenture, the Senior Secured Notes, the Notes Guarantees and the Security Documents.

“Secured Parties” shall mean the collective reference to the Holders, the Trustee and the Collateral Agent and any other holders of Secured Obligations.

“Securities Act” shall have the meaning assigned to such term in Section 6.01 of this Agreement.

“Security” shall have the meaning given that term in the UCC.

“Security Interest” shall have the meaning assigned to such term in Section 2.01 of this Agreement.

“Software” shall have the meaning given that term in the UCC.

“Stock Rights” means all dividends, instruments or other distributions and any other right or property which the Grantors shall receive or shall become entitled to receive for any reason whatsoever with respect to, in substitution for or in exchange for any Capital Stock constituting Collateral, any right to receive Capital Stock and any right to receive earnings, in which the Grantors now have or hereafter acquire any right, issued by an issuer of such Capital Stock.

“Supporting Obligation” shall have the meaning given that term in the UCC and shall also refer to a secondary obligation that supports the payment or performance of an Account, Chattel Paper, a Document, a General Intangible, an Instrument, or Investment Property.

“Trademark Licenses” shall mean all agreements, whether written or oral, providing for the grant by or to any Grantor of any right under any Trademark.

“Trademarks” shall mean all trademarks, trade names, corporate names, company names, Internet domain names, business names, fictitious business names, trade dress, trade styles, service marks, brand names, designs, logos and other source or business identifiers, whether registered or unregistered, including, without limitation, the trademark registrations and trademark applications listed on Exhibit C annexed hereto and made a part hereof, together with all registrations thereof, all applications in connection therewith, all renewals or extensions thereof and all goodwill of the business connected with, and symbolized by, any of the foregoing.

“Trustee” shall have the meaning assigned to such term in the recitals of this Agreement.

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ARTICLE 2

Grant of Security Interest

SECTION 2.01 Security Interest. As security for the payment or performance, as the case may be, in full of the Secured Obligations, each Grantor hereby grants to the Collateral Agent, its successors and permitted assigns, for its own benefit and the benefit of the other Secured Parties, a security interest in all of such Grantor’s right, title and interest in, to and under the Collateral whether now existing or hereafter arising (the “Security Interest”). Without limiting the foregoing, each Grantor hereby designates the Collateral Agent as such Grantor’s true and lawful attorney, exercisable by the Collateral Agent whether or not an Event of Default exists, with full power of substitution, at the Collateral Agent’s option, to file or cause to be filed one or more Financing Statements, continuation statements, or to sign other documents for the purpose of perfecting, confirming, continuing, or protecting the Security Interest granted by each Grantor, without the signature of any Grantor (each Grantor hereby appointing the Collateral Agent as such Person’s attorney to sign such Person’s name to any such instrument or document, whether or not an Event of Default exists), and naming any Grantor or the Grantors, as debtors, and the Collateral Agent, as secured party. Any such financing statement may indicate the Collateral as “all assets of the Grantor”, “all personal property of the debtor” or words of similar effect, regardless of whether any particular asset comprised in the Collateral falls within the scope of Article 9 of the UCC. Anything to the contrary herein notwithstanding, the Collateral Agent shall not be required to make any filings of Financing Statements, filings with the PTO, the Copyright Office or otherwise.

SECTION 2.02 No Assumption of Liability. The Security Interest is granted as security only and shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral.

ARTICLE 3

Representations and Warranties

The Grantors jointly and severally represent and warrant to the Collateral Agent and the other Secured Parties that:

SECTION 3.01 Title and Authority. Each Grantor has good and valid rights in, and title to, the Collateral with respect to which it has purported to grant a Security Interest or Lien under the Security Documents and has full power and authority to grant to the Collateral Agent the Security Interest and/or Lien in such Collateral pursuant to the Security Documents and to execute, deliver and perform its obligations in accordance with the terms of the Security Documents, without the consent or approval of any other Person, other than any consent or approval which has been obtained.

SECTION 3.02 Filings. UCC Financing Statements in each Grantor’s jurisdiction of organization and other appropriate filings, recordings or registrations with the PTO and the Copyright Office containing a description of the Collateral have been or will be timely filed by the Grantors to protect the validity of and to establish a legal, valid and perfected security interest and/or Lien in favor of the Collateral Agent (for its own benefit and the benefit of the other Secured Parties) in respect of all Collateral in which the Security Interest and/or Liens may be perfected by such filing, recording or registration and no further or subsequent filing, re-filing, recording, rerecording, registration or re-registration is necessary in respect of such UCC Financing Statements or such filing with the PTO or the Copyright Office, except as provided under applicable law with respect to the filing of continuation statements or as a result of any change in a Grantor’s name or jurisdiction of incorporation or formation or under any other circumstances under which, pursuant to the UCC, filings previously made have become misleading or ineffective in whole or in part, or filings with the PTO or the Copyright Office in respect of IP Collateral acquired after the date hereof which filings are required hereunder to be made by Grantors.

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SECTION 3.03 Validity and Priority of Security Interest. The Security Interest constitutes (a) a legal and valid security interest in all of the Collateral securing the payment and performance of the Secured Obligations, (b) subject to the making of the filings described in Section 3.02 above within the time periods prescribed by applicable law, a perfected security interest in that portion of the Collateral to the extent perfection in the Collateral can be accomplished by such filing and (c) subject to the obtaining of Control by the Collateral Agent, a perfected security interest in such Collateral to the extent perfection in the Collateral can be accomplished by Control and perfection of the Security Interest in such Collateral is required by the terms hereof or of the Indenture. The Security Interest is and shall be prior to any other Lien on any of the Collateral, subject to Permitted Priority Liens.

SECTION 3.04 Grantors’ Names, Location, Etc. Each Grantor’s exact legal name is set forth on Schedule I attached hereto or as otherwise set forth in a written notice given to the Collateral Agent pursuant to Section 4.01(a) below. Each Grantor was formed under the laws of the jurisdiction of its incorporation or formation as set forth on Schedule I attached hereto or as otherwise set forth in a written notice given to the Collateral Agent pursuant to Section 4.01(a) below. Each Grantor’s chief executive office, principal place of business, and the place where each Grantor maintains records concerning the Collateral as of the Issue Date are set forth on Schedule I attached hereto or as otherwise set forth in a written notice given to the Collateral Agent pursuant to Section 4.01(a) below.

SECTION 3.05 Intellectual Property. Each Grantor represents and warrants that: (i) Exhibit A is a true, correct and complete list of all United States Copyright registrations and applications for the registration of Copyrights owned by such Grantor as of the date hereof; (ii) Exhibit B is a true, correct and complete list of all United States Patents and Patent applications owned by such Grantor as of the date hereof; and (iii) Exhibit C is a true, correct and complete list of all United States Trademark registrations and applications owned by such Grantor as of the date hereof. In the event any party discovers that any item that should have been part of either Exhibit A, B, or C was omitted, the omitted item shall be deemed part of the corresponding Exhibit and the Collateral Agent shall have the right to amend the Exhibit.

SECTION 3.06 Commercial Tort Claims. Schedule II (as supplemented from time to time by the Grantors in a supplement delivered pursuant to this Section) sets forth, as of the Issue Date and as of each date by which this Section requires any supplement to be delivered by the Grantors, all Commercial Tort Claims of each Grantor with a reasonably expected value in excess of $5,000,000 for such Commercial Tort Claim. Each Grantor shall supplement Schedule II within forty-five (45) days after the end of each fiscal quarter of the Company if such Grantor has acquired any Commercial Tort Claim with a reasonably expected value in excess of $5,000,000 during such fiscal quarter and such Grantor shall grant to the Collateral Agent in writing a security interest in such Commercial Tort Claims and in the Proceeds thereof.

SECTION 3.07 Deposit Accounts. All of such Grantor’s Deposit Accounts on the date hereof are listed on Schedule III.

SECTION 3.08 Pledged Collateral. Schedule IV sets forth a complete and accurate list of all Pledged Collateral owned by such Grantor. Such Grantor is the direct, sole beneficial owner and sole holder of record of the Pledged Collateral listed on Schedule IV as being owned by it, free and clear of any Liens, except for Permitted Liens. Such Grantor further represents and warrants that (a) all Pledged Collateral owned by it constituting Capital Stock has been (to the extent such concepts are relevant with respect to such Pledged Collateral) duly authorized, validly issued, and, to the extent applicable, is fully

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paid and non-assessable; (b) if it is a limited partnership or a limited liability company, the membership or partnership interests of such Grantor are not certificated and the documents relating to such membership or partnership interests do not expressly state that such interests are governed by Article 8 of the UCC; (c) such Grantor (i) has the power and authority to pledge the Pledged Collateral in the manner hereby done or contemplated and (ii) will defend its title or interest thereto or therein against any and all Liens (other than Permitted Liens and the Lien created by this Agreement or the other Security Documents), however arising, of all Persons whomsoever; (d) by virtue of the execution and delivery by such Grantor of this Agreement, and (i) the delivery by such Grantor to the Collateral Agent, for the benefit of the Secured Parties, of the stock certificates or other certificates or documents representing or evidencing such Pledged Collateral accompanied by stock powers or endorsements, as applicable, executed in blank in accordance with the terms of this Agreement or (ii) the filing of a Financing Statement if such Pledged Collateral is a partnership interest in a limited partnership or membership interest in a limited liability company, the Collateral Agent will obtain a valid and perfected Lien upon, and security interest in, such Pledged Collateral as security for the payment and performance of the Secured Obligations; and (e) no consent of any Person including any general or limited partner, any other member of a limited liability company, any other shareholder or any other trust beneficiary is necessary in connection with the creation, perfection or first priority status of the security interest of the Collateral Agent in any Pledged Collateral or the exercise by the Collateral Agent of the voting or other rights provided for in this Agreement or the exercise of remedies in respect thereof, in each case except as have been obtained.

Except as set forth in Schedule IV, such Grantor owns 100% of the issued and outstanding Capital Stock which constitute Pledged Collateral owned by it (except as otherwise provided in the definition of Excluded Assets).

ARTICLE 4

Covenants

SECTION 4.01 Change of Name; Location of Collateral; Records; Place of Business.

(a) Each Grantor will furnish to the Collateral Agent and the Trustee prompt written notice of any change in (which in any event shall be furnished within 10 days): (i) such Grantor’s name; (ii) the location of such Grantor’s chief executive office or its principal place of business; (iii) such Grantor’s type of legal entity or jurisdiction of incorporation or formation; or (iv) such Grantor’s Federal Taxpayer Identification Number or organizational identification number, if any, assigned to it by its jurisdiction of organization. Each Grantor agrees not to effect or permit any change referred to in the preceding sentence unless all filings, publications and registrations have been made under the UCC that are required in order for the Collateral Agent to continue at all times following such change to have a valid, legal and perfected first priority security interest in all the Collateral (subject to Permitted Priority Liens) to the extent such security interest may be perfected by the filing of a Financing Statement under the UCC for its own benefit and the benefit of the other Secured Parties. The Collateral Agent shall have no duty to inquire about any of the changes described in this clause (a), the parties acknowledging and agreeing that each Grantor is solely responsible to take all action described in the immediately preceding sentence.

(b) Each Grantor agrees (i) to maintain, at its own cost and expense, records with respect to the Collateral owned by it which are complete and accurate in all material respects and which are consistent with its current practices or in accordance with such prudent and standard practices used in industries that are the same as, or similar to, those in which such Grantor is engaged, but in any event to include accounting records which are complete in all material respects indicating all payments and proceeds received with respect to any part of the Collateral, and (ii) at such time or times as the Collateral Agent may reasonably request, promptly to prepare and deliver to the Collateral Agent a duly certified schedule or schedules in form and detail reasonably satisfactory to the Collateral Agent showing the identity, amount and location of any and all Collateral.

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SECTION 4.02 Protection of Security. Each Grantor shall, at its own cost and expense, take any and all actions reasonably necessary or reasonably desirable to defend title to the Collateral against all Persons and to defend the Security Interest and Liens of the Collateral Agent in the Collateral and the priority thereof against any Lien (other than Permitted Liens).

SECTION 4.03 Protection of Intellectual Property by Grantors. Except as set forth below in this Section 4.03, each of the Grantors shall use commercially reasonable efforts to undertake the following with respect to each material item of Intellectual Property used or useful to the conduct of the business of such Grantor:

(a) Pay all renewal fees and other fees and costs associated with maintaining and prosecuting issuances, registrations and applications relating to such Intellectual Property and take all other customary and reasonably necessary steps to maintain each registration of such Intellectual Property.

(b) Take all actions reasonably necessary to prevent any of such Intellectual Property from becoming forfeited, abandoned, dedicated to the public (other than at the expiration of any non-renewable statutory term), or invalidated.

(c) At the Grantors’ sole cost and expense, pursue the registration of each application and registration in such Intellectual Property that is the subject of the security interest created herein and not abandon any such application or registration.

(d) At the Grantors’ sole cost and expense take any and all action that the Grantors reasonably deem appropriate under the circumstances to protect such Intellectual Property from infringement, misappropriation or dilution, including, without limitation, the prosecution and defense of infringement actions.

Notwithstanding the foregoing, so long as no Event of Default has occurred and is continuing, and no Material Adverse Effect would result therefrom, no Grantor shall have any obligation to take any of the actions described in Sections 4.03 (a), (b), (c) and (d) above with respect to any Intellectual Property (i) that relates solely to any of the Grantor’s products or services that have been discontinued, abandoned or terminated, so long as such Grantor has no intention of using such Intellectual Property in the future, or (ii) that has been replaced with Intellectual Property substantially similar to the Intellectual Property that may be abandoned or otherwise become invalid, so long as the failure to take such actions with respect to such Intellectual Property does not materially adversely affect the validity of such replacement Intellectual Property and so long as such replacement Intellectual Property is subject to the security interest created by this Agreement, or (iii) that otherwise is no longer used in or useful to the business of any Grantor, so long as such Grantor has no intention of using it in the future.

SECTION 4.04 Further Assurances.

(a) Each Grantor agrees, at its own expense, to execute, acknowledge, deliver and cause to be duly filed all such further documents, Financing Statements, agreements and instruments and take all such further actions as may be required or as the Collateral Agent may from time to time reasonably request to better assure, preserve, protect and perfect the Security Interest and Liens of the Collateral Agent in the Collateral and the rights and remedies created by the Security Documents or the validity or priority of such Security Interest and Liens, including the payment of any fees and taxes required in connection

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with the execution and delivery of the Security Documents, the granting of the Security Interest and Liens of the Collateral Agent in the Collateral and the filing of any Financing Statements or other documents in connection herewith or therewith. Without limiting the foregoing, each Grantor agrees, at its own expense, to execute, acknowledge, deliver and cause to be duly filed all such further documents, Financing Statements, agreements and instruments, including the filing with the PTO or the Copyright Office of short form security agreements substantially in the form of such agreements executed and delivered on the Issue Date to the extent, and within the time periods, required by Section 4.07, and take all such further actions as may be required or as the Collateral Agent may reasonably request to perfect the Collateral Agent’s Security Interest and Liens in all Collateral (including causing the Collateral Agent to have Control of any such Collateral to the extent required under the Security Documents or the Indenture and to the extent perfection in such Collateral can be accomplished by Control).

(b) Notwithstanding the foregoing or anything to the contrary in this Agreement, the Indenture or any Indenture Document, the Grantors shall not be required under this Section 4.04 or otherwise under this Agreement, the Indenture or any Indenture Document, to (A) to perfect the Security Interests and/or Liens granted by this Agreement by any means other than by (1) filings pursuant to the Uniform Commercial Code in the office of the secretary of state (or similar filing office) of the jurisdiction of incorporation or formation of the Company or such Guarantor, (2) filings in United States government offices with respect to registered and applied for United States Intellectual Property owned by the Company or any Guarantor, (3) delivery to the Collateral Agent to be held in its possession of all Collateral consisting of certificated securities, Chattel Paper, promissory notes or Instruments as required by this Agreement, and (4) if, as of the last day of any fiscal quarter of the Company, after taking into account any pledge of Available Eligible Assets pursuant to Section 4.14 of the Indenture, the Collateral Value does not equal or exceed the Threshold Amount as of such date, entry into Deposit Account Control Agreements and securities account control agreements (other than with respect to Excluded Deposit Accounts) in accordance with Section 4.09, (B) to perfect the security interest granted under the Security Documents in Letter-of-Credit Rights other than pursuant to the filings under the Uniform Commercial Code and (C) to complete any filings or other action with respect to the perfection of the security interests, including of any Intellectual Property, created under the Security Documents in any jurisdiction outside of the United States other than the use of commercially reasonable efforts to obtain a perfected security interest in respect of any Capital Stock of a Material Pledged Foreign Subsidiary constituting Collateral in the jurisdiction of formation of such Material Pledged Foreign Subsidiary in accordance with Section 4.10. The Company shall from time to time promptly pay all financing and continuation statement recording and/or filing fees, charges and recording and similar taxes relating to this Indenture, the Security Documents and any amendments hereto or thereto and any other instruments of further assurance required pursuant hereto or thereto.

SECTION 4.05 Taxes; Encumbrances. At its option and upon reasonable prior notice to the Grantors (which notice shall not be required at any time that an Event of Default shall have occurred and be continuing) the Collateral Agent may discharge past due taxes, assessments, charges, fees, Liens, security interests or other encumbrances at any time levied or placed on the Collateral (other than Permitted Liens), and may take any other action which the Collateral Agent may reasonably deem necessary or desirable to repair, maintain or preserve any of the Collateral to the extent any Grantor fails to do so as required by the Indenture, and each Grantor jointly and severally agrees to reimburse the Collateral Agent for any payment made or any expense incurred by the Collateral Agent pursuant to the foregoing authorization within thirty (30) days after receipt of an invoice therefor setting forth such expenses; provided, however, that the Collateral Agent shall not have any obligation to undertake any of the foregoing and shall have no liability on account of any action so undertaken except where there is a specific finding in a judicial proceeding (in which the Collateral Agent has had an opportunity to be heard), from which finding no further appeal is available, that the Collateral Agent had engaged in willful misconduct or acted in

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a grossly negligent manner; provided, further, that the making of any such payments or the taking of any such action by the Collateral Agent shall not be deemed to constitute a waiver of any Event of Default arising from the Grantor’s failure to have made such payments or taken such action.

SECTION 4.06 Insurance. Each Grantor hereby irrevocably makes, constitutes and appoints the Collateral Agent (and all officers, employees or agents designated by the Collateral Agent) as such Grantor’s true and lawful agent (and attorney-in-fact), exercisable only after the occurrence and during the continuance of an Event of Default, for the purpose of making, settling and adjusting claims in respect of Collateral under any Security Document under policies of insurance, endorsing the name of such Grantor on any check, draft, instrument or other item of payment for the proceeds of such policies of insurance and for making all determinations and decisions with respect thereto. The Grantors shall use commercially reasonable efforts to have the Collateral Agent named as an additional insured or loss payee, as applicable, under liability, property and business interruption insurance policies maintained by Grantors. Unless an Event of Default has occurred and is continuing, the Grantors shall be entitled to receive, retain and use the proceeds of any claims paid under any policies of insurance and to make all determinations and decisions with respect to such policies of insurance and any claims thereunder.

SECTION 4.07 Intellectual Property. (a) Each Grantor shall give the Collateral Agent written notice (with reasonable detail), within thirty (30) days after the last day of each fiscal quarter of the Company of the occurrence of any of the following since the Issue Date or, after the date of the first notice delivered pursuant to this Section 4.07, since the date of the most recent notice delivered pursuant to this Section 4.07:

(i) Such Grantor’s filing applications for registrations of, being issued a registration in or receiving an issuance of any U.S. Copyright, Patent or Trademark, or otherwise acquiring ownership of any registered or applied for U.S. Copyright, Patent or Trademark (other than the acquisition by such Grantor of the right to sell products containing the trademarks of others in the ordinary course of such Grantor’s business); or

(ii) The filing and acceptance of a statement of use or an amendment to allege use in connection with any of such Grantor’s intent-to-use Trademark applications.

(b) The provisions of this Agreement shall automatically apply to any such additional property or rights described in subsection (a) of this Section 4.07, all of which shall be deemed to be and treated as “Intellectual Property” as applicable, within the meaning of this Agreement.

(c) Each of the Grantors shall execute and deliver, and have recorded, any and all agreements, instruments, documents and papers as may be reasonably necessary or required or as the Collateral Agent may reasonably request including but not limited to notices of security interests substantially in the form of Exhibit D (Notice of Security Interest in Trademarks and Patents) or Exhibit E (Notice of Security Interest in Copyrights), as applicable, attached hereto, to evidence the Collateral Agent’s security interest in any Intellectual Property in the United States, including with respect to any Intellectual Property described in subsection (a) of this Section 4.07 at the time of delivery of the notice specified in subsection (a) of this Section 4.07, (including, without limitation, filings with the PTO, the Copyright Office or any similar government office, as applicable), and each of the Grantors hereby appoints the Collateral Agent as its attorney-in-fact for the sole purpose of executing and filing all such writings for the foregoing purposes, all such acts of such attorney being hereby ratified and confirmed; provided, however, the Collateral Agent’s taking of such action shall not be a condition to the creation or perfection of the security interest created hereby.

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SECTION 4.08 Registration of Pledged Collateral; Voting; Dividends.

(a) Registration of Pledged Collateral. If an Event of Default shall occur and be continuing and the Collateral Agent has given notice of its intent to exercise such rights to the relevant Grantor or Grantors, at the option of the Collateral Agent, such Grantor will permit any registerable Pledged Collateral owned by it to be registered in the name of the Collateral Agent or its nominee at any time.

(b) Exercise of Rights in Pledged Collateral. (i) Without in any way limiting the foregoing and subject to clause (ii) below, each Grantor shall have the right to exercise all voting rights or other rights relating to the Pledged Collateral owned by it for all purposes not inconsistent with this Security Agreement, the Indenture or any other Security Document.

(ii) Each Grantor will permit the Collateral Agent or its nominee at any time during the existence of an Event of Default, without notice, to exercise all voting rights or other rights relating to the Pledged Collateral owned by it, including, without limitation, exchange, subscription or any other rights, privileges, or options pertaining to any Capital Stock or Investment Property constituting such Pledged Collateral as if it were the absolute owner thereof, subject to the provisions of the Intercreditor Agreement.

(iii) Subject to clause (iv) below, such Grantor shall be entitled to collect and receive for its own use all dividends and interest paid in respect of the Pledged Collateral owned by it.

(iv) Upon the occurrence and during the continuance of an Event of Default, if the Collateral Agent has given notice to the relevant Grantor that such Grantor’s right to receive distributions in respect of any Pledged Collateral is terminated, any distributions in respect of any Pledged Collateral owned by such Grantor, whenever paid or made, shall be delivered to the Collateral Agent to hold as Pledged Collateral and shall, if received by such Grantor, be received in trust for the benefit of the Collateral Agent, be segregated from the other property or funds of such Grantor, and be forthwith delivered to the Collateral Agent as Pledged Collateral in the same form as so received (with any necessary endorsement).

SECTION 4.09 Deposit Account Control Agreements and Securities Account Control Agreement. Each Grantor will use its commercially reasonable efforts to provide to the Collateral Agent, within 60 days after the applicable Financial Statement Availability Date (or, in the case of any new deposit account (other than an Excluded Deposit Account) opened after such Financial Statement Availability Date and prior to the next Financial Statement Availability Date, within 45 days after such deposit account is opened), a Deposit Account Control Agreement duly executed on behalf of each financial institution holding a deposit account (other than an Excluded Deposit Account) of such Grantor and a control agreement duly executed on behalf of each financial institution holding a securities account of such Grantor if, as of the last day of the most recent quarter for which the Financial Statement Availability Date has occurred, after taking into account any pledge of Available Eligible Assets pursuant to Section 4.14 of the Indenture, the Collateral Value does not equal or exceed the Threshold Amount.

SECTION 4.10 Material Pledged Foreign Subsidiaries. Each Grantor will use its commercially reasonable efforts to execute or cause to be executed, by no later than 90 days after the date on which any Foreign Subsidiary would qualify as a Material Pledged Foreign Subsidiary, a pledge agreement (or comparable document to effectuate a perfected pledge of the Capital Stock of such Material Pledged Foreign Subsidiary) governed by the laws of the jurisdiction of formation of such Material Pledged Foreign Subsidiary in favor of the Collateral Agent for the benefit of the Secured Parties with respect to the outstanding Capital Stock of such Material Pledged Foreign Subsidiary constituting Collateral and take all such further actions as may be necessary under such laws or as the Collateral Agent may reasonably request to perfect the Collateral Agent’s Security Interest and Lien in such Capital Stock. Each Grantor further agrees to deliver to the Collateral Agent the stock certificates (if any) representing the Capital Stock subject to such pledge, stock powers with respect thereto executed in blank, in each case in form and substance reasonably satisfactory to the Collateral Agent.

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SECTION 4.11 Pledged Partnership or Limited Liability Company Interests. Each Grantor agrees that with respect to any interest in any limited liability company or limited partnership owned by such Grantor and constituting Collateral hereunder that is not a “security” within the meaning of Article 8 of the UCC, such Grantor shall at no time elect to treat any such interest as a “security” within the meaning of Article 8 of the UCC, nor shall such interest be represented by a certificate. Each Grantor shall cause each partnership or limited liability company that is a Subsidiary of such Grantor the Capital Stock of which is included in the Pledged Collateral to amend its partnership agreement or limited liability company agreement as requested by the Collateral Agent to provide that, in connection with the valid exercise of the Collateral Agent’s Rights and Remedies, the Collateral Agent may (i) sell, transfer or otherwise dispose of all or part of such interests (including through a sale, transfer or disposition in connection with any foreclosure) without any further consent from any partner or member or (ii) acquire such interests and become a partner or member or be substituted for a partner or member under the partnership agreement or limited liability company agreement, as applicable, without the consent of any partner or member, in each case, without having to comply with any of the restrictions on the sale, transfer or other disposition of the interests set forth in the partnership agreement or limited liability company agreement. Each Grantor shall deliver to the Collateral Agent, to be held in the Collateral Agent’s possession, all Collateral consisting of certificated securities or other certificated Capital Stock in accordance with Section 7.03.

ARTICLE 5

SECTION 5.01 Power of Attorney. Each Grantor irrevocably makes, constitutes and appoints the Collateral Agent (and all officers, employees or agents designated by the Collateral Agent) as such Grantor’s true and lawful agent and attorney-in-fact, and in such capacity the Collateral Agent shall have the right, with power of substitution for each Grantor and in each Grantor’s name or otherwise, for the use and benefit of the Collateral Agent and the other Secured Parties, (a) at any time, whether or not an Event of Default has occurred, to take actions required to be taken by the Grantors under Section 2.01 of this Agreement, and (b) after the occurrence and during the continuance of an Event of Default, (i) to demand, collect, receive payment of, give receipt for and give discharges and releases of all or any of the Collateral; (ii) to sign the name of any Grantor on any invoices, schedules of Collateral, freight or express receipts, or bills of lading storage receipts, warehouse receipts or other documents of title relating to any of the Collateral; (iii) to sign the name of any Grantor on any notice to such Grantor’s Account Debtors; (iv) to sign the name of any Grantor on any proof of claim in bankruptcy against Account Debtors, and on notices of lien, claims of mechanic’s liens, or assignments or releases of mechanic’s liens securing the Accounts; (v) to receive and open each Grantor’s mail, remove any Proceeds of Collateral therefrom and turn over the balance of such mail either to the Company or to any trustee in bankruptcy or receiver of a Grantor, or other legal representative of a Grantor whom the Collateral Agent may reasonably determine to be the appropriate person to whom to so turn over such mail; (vi) to commence and prosecute any and all suits, actions or proceedings at law or in equity (including any action for past, present, and future infringement of any IP Collateral) in any court of competent jurisdiction to collect or otherwise realize on all or any of the Collateral or to enforce any rights in respect of any Collateral; (vii) to settle, compromise, compound, adjust or defend any actions, suits or proceedings relating to all or any of the Collateral; (viii) to take all such action as may be reasonably necessary to obtain the payment of any letter of credit and/or banker’s acceptance of which any Grantor is a beneficiary; (ix) to repair, manufacture, assemble, complete, package, deliver, alter or supply goods, if any, necessary to fulfill in whole or in part the purchase order of any customer of any Grantor; (x) to use, license, assign or transfer or otherwise dispose of any or all General Intangibles of any Grantor, subject to those restrictions to which such Grantor is subject under

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applicable law and by contract, and any person may conclusively rely upon a statement of a Responsible Officer of the Collateral Agent that an Event of Default has occurred and that the Collateral Agent is authorized to exercise such rights and remedies; (xi) to supplement and amend from time to time Exhibits A, B and C of this Agreement to include any newly developed, applied for, registered, or acquired Intellectual Property of such Grantor and any intent-to-use Trademark applications for which a statement of use or an amendment to allege use has been filed and accepted by the PTO; and (xii) to use, sell, assign, transfer, pledge, make any agreement with respect to or otherwise deal with all or any of the Collateral, and to do all other acts and things as may be reasonably necessary to carry out the purposes of this Agreement, as fully and completely as though the Collateral Agent was the absolute owner of the Collateral for all purposes; provided, however, that nothing herein contained shall be construed as requiring or obligating the Collateral Agent or any other Secured Party to make any commitment or to make any inquiry as to the nature or sufficiency of any payment received by the Collateral Agent or any other Secured Party, or to present or file any claim or notice. It is understood and agreed that the appointment of the Collateral Agent as the agent and attorney-in-fact of the Grantors for the purposes set forth above is coupled with an interest and is irrevocable. The appointment of the Collateral Agent as the agent and attorney-in-fact of the Grantors for the purposes set forth above shall terminate upon the full and final payment of the Company’s and the Guarantors’ respective Obligations under the Indenture, the Notes and the Notes Guarantees (other than contingent obligations which have yet to accrue).

SECTION 5.02 Pledged Collateral. Each Grantor hereby irrevocably constitutes and appoints the Collateral Agent as its proxy and attorney-in-fact, upon the occurrence and during the continuance of an Event of Default, with respect to its Pledged Collateral, including the right to vote any of the Pledged Collateral, with full power of substitution to do so. In addition to the right to vote any of the Pledged Collateral, the appointment of the Collateral Agent as proxy and attorney-in-fact shall include the right, upon the occurrence and during the continuance of an Event of Default, to exercise all other rights, powers, privileges and remedies to which a holder of any of the Pledged Collateral would be entitled (including giving or withholding written consents of shareholders, calling special meetings of shareholders and voting at such meetings). Such proxy and attorney-in-fact shall be effective, automatically and without the necessity of any action (including any transfer of any of the Pledged Collateral on the record books of the issuer thereof) by any Person (including the issuer of the Pledged Collateral or any officer or agent thereof), upon the occurrence and continuance of an Event of Default.

SECTION 5.03 No Obligation to Act. The Collateral Agent shall not be obligated to do any of the acts or to exercise any of the powers authorized by Section 5.01, but if the Collateral Agent elects to do any such act or to exercise any of such powers, it shall not be accountable for more than it actually receives as a result of such exercise of power, and shall not be responsible to any Grantor for any act or omission to act except for any act or omission to act as to which there is a final determination not subject to appeal made in a judicial proceeding by a court of competent jurisdiction (in which proceeding the Collateral Agent has had an opportunity to be heard) which determination includes a specific finding that the subject act or omission to act constitutes gross negligence or willful misconduct. The provisions of Section 5.01 shall in no event relieve any Grantor of any of its obligations hereunder or under any other Security Document with respect to the Collateral or any part thereof or impose any obligation on the Collateral Agent or any other Secured Party to proceed in any particular manner with respect to the Collateral or any part thereof, or in any way limit the exercise by the Collateral Agent or any other Secured Party of any other or further right which it may have on the date of this Agreement or hereafter, whether hereunder, under any other Security Document, by applicable law or otherwise.

SECTION 5.04 Limitation on Duty of Collateral Agent in Respect of Collateral.

(a) Beyond the exercise of reasonable care in the custody thereof, the Collateral Agent shall have no duty as to any Collateral in its possession or control or in the possession or control of any agent

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or bailee or any income thereon or as to preservation of rights against prior parties or any other rights pertaining thereto and the Collateral Agent shall not be responsible for filing any financing or continuation statements or recording any documents or instruments in any public office at any time or times or otherwise perfecting or maintaining the perfection of any security interest in the Collateral. The Collateral Agent shall be deemed to have exercised reasonable care in the custody of the Collateral in its possession if the Collateral is accorded treatment substantially equal to that which it accords its own property and shall not be liable or responsible for any loss or diminution in the value of any of the Collateral, by reason of the act or omission of any carrier, forwarding agency or other agent or bailee selected by the Collateral Agent in good faith.

(b) The Collateral Agent shall not be responsible for the existence, genuineness or value of any of the Collateral or for the validity, perfection, priority or enforceability of the Liens in any of the Collateral, whether impaired by operation of law or by reason of any action or omission to act on its part hereunder, except to the extent such action or omission constitutes gross negligence or willful misconduct on the part of the Collateral Agent (as determined by a final nonappealable order of a court of competent jurisdiction), for the validity or sufficiency of the Collateral or any agreement or assignment contained therein, for the validity of the title of the Company to the Collateral, for insuring the Collateral or for the payment of taxes, charges, assessments or Liens upon the Collateral or otherwise as to the maintenance of the Collateral.

(c) Each Grantor shall remain liable to observe and perform in all material respects all of the conditions and obligations to be observed and performed by it under each contract, agreement or instrument constituting Collateral, and each Grantor jointly and severally agrees to indemnify and hold harmless the Collateral Agent and the Secured Parties from and against any and all liability for such performance.

ARTICLE 6

Remedies

SECTION 6.01 Remedies upon Default. Subject to the Intercreditor Agreement (if any), after the occurrence and during the continuance of an Event of Default, the Collateral Agent shall have in any jurisdiction in which enforcement hereof is sought, in addition to all other rights and remedies, the rights and remedies of a secured party under the UCC or other applicable law. The rights and remedies of the Collateral Agent after the occurrence and during the continuation of an Event of Default shall include, without limitation, the right to take any or all of the following actions at the same or different times, in each case, subject to the Intercreditor Agreement:

(a) With respect to any Collateral consisting of Accounts, General Intangibles (including Payment Intangibles), Instruments, Chattel Paper, Documents, and Investment Property, the Collateral Agent may collect the Collateral with or without the taking of possession of any of the Collateral.

(b) With respect to any Collateral consisting of Accounts, the Collateral Agent may: (i) demand, collect and receive any amounts relating thereto, as the Collateral Agent may determine; (ii) commence and prosecute any actions in any court for the purposes of collecting any such Accounts and enforcing any other rights in respect thereof; (iii) defend, settle or compromise any action brought and, in connection therewith, give such discharges or releases as the Collateral Agent may reasonably deem appropriate; (iv) without limiting the Collateral Agent’s rights set forth in Section 5.01 hereof, receive, open and dispose of mail addressed to any Grantor and endorse checks, notes, drafts, acceptances, money orders, bills of lading, warehouse receipts or other

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instruments or documents evidencing payment, shipment or storage of the goods giving rise to such Accounts or securing or relating to such Accounts, on behalf of and in the name of such Grantor; and (v) sell, assign, transfer, make any agreement in respect of, or otherwise deal with or exercise rights in respect of, any such Accounts or the goods or services which have given rise thereto, as fully and completely as though the Collateral Agent was the absolute owner thereof for all purposes.

(c) With respect to any Collateral consisting of Pledged Collateral, the Collateral Agent may (i) exercise all rights of any Grantor with respect thereto, including without limitation, the right to exercise all voting and corporate rights at any meeting of the shareholders of the issuer of any Pledged Collateral and to exercise any and all rights of conversion, exchange, subscription or any other rights, privileges or options pertaining to any Pledged Collateral as if the Collateral Agent was the absolute owner thereof, including the right to exchange, at its discretion, any and all of any Pledged Collateral upon the merger, consolidation, reorganization, recapitalization or other readjustment of the issuer thereof, all without liability; (ii) transfer such Collateral at any time to itself, or to its nominee, and receive the income thereon and hold the same as Collateral hereunder or apply it to the Secured Obligations; and (iii) demand, sue for, collect or make any compromise or settlement it deems desirable. The Grantors recognize that (w) the Collateral Agent may be unable to effect a public sale of all or a part of the Pledged Collateral by reason of certain prohibitions contained in the Securities Act of 1933, 15 U.S.C. § 77 (as amended and in effect, the “Securities Act”), or the securities laws of various states (the “Blue Sky Laws”), but may be compelled to resort to one or more private sales to a restricted group of purchasers who will be obliged to agree, among other things, to acquire the Pledged Collateral for their own account, for investment and not with a view to the distribution or resale thereof, (x) that private sales so made may be at prices and upon other terms less favorable to the seller than if the Pledged Collateral were sold at public sales, (y) that neither the Collateral Agent nor any other Secured Party has any obligation to delay sale of any of the Pledged Collateral for the period of time necessary to permit the Pledged Collateral to be registered for public sale under the Securities Act or the Blue Sky Laws, and (z) that private sales made under the foregoing circumstances shall be deemed to have been made in a commercially reasonable manner. Notwithstanding anything herein to the contrary, no Grantor shall be required to register, or cause the registration of, any Pledged Collateral under the Securities Act or any Blue Sky Laws.

(d) With respect to any Collateral consisting of Inventory, Goods, and Equipment, the Collateral Agent may conduct one or more going out of business sales, in the Collateral Agent’s own right or by one or more agents and contractors. Such sale(s) may be conducted upon any premises owned, leased, or occupied by any Grantor. The Collateral Agent and any such agent or contractor, in conjunction with any such sale, may augment the Inventory with other goods (all of which other goods shall remain the sole property of the Collateral Agent or such agent or contractor). Any amounts realized from the sale of such goods which constitute augmentations to the Inventory (net of an allocable share of the costs and expenses incurred in their disposition) shall be the sole property of the Collateral Agent or such agent or contractor and neither any Grantor nor any Person claiming under or in right of any Grantor shall have any interest therein. Each purchaser at any such going out of business sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor.

(e) With or without legal process and with or without prior notice or demand for performance, the Collateral Agent may peaceably enter upon, occupy, and use any premises owned or occupied by each Grantor, and may exclude the Grantors from such premises or portion thereof as may have been so entered upon, occupied, or used by the Collateral Agent to the extent the

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Collateral Agent deems such exclusion reasonably necessary to preserve and protect the Collateral. The Collateral Agent shall not be required to remove any of the Collateral from any such premises upon the Collateral Agent’s taking possession thereof, and may render any Collateral unusable to the Grantors. In no event shall the Collateral Agent be liable to any Grantor for use or occupancy by the Collateral Agent of any premises pursuant to this Section 6.01, nor for any charge (such as wages for the Grantors’ employees and utilities) incurred in connection with the Collateral Agent’s exercise of the Collateral Agent’s Rights and Remedies (as defined herein) hereunder.

(f) The Collateral Agent may require any Grantor to assemble the Collateral and make it available to the Collateral Agent at the Grantor’s sole risk and expense at a place or places which are reasonably convenient to both the Collateral Agent and such Grantor.

(g) Each Grantor agrees that the Collateral Agent shall have the right, subject to applicable law, to sell or otherwise dispose of all or any part of the Collateral, at public or private sale, for cash, upon credit or for future delivery as the Collateral Agent shall deem appropriate. Each purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor.

(h) Unless the Collateral is perishable or threatens to decline speedily in value, or is of a type customarily sold on a recognized market (in which event the Collateral Agent shall provide the Grantors such notice as may be practicable under the circumstances), the Collateral Agent shall give the Grantors at least ten (10) days’ prior written notice, by authenticated record, of the date, time and place of any proposed public sale, and of the date after which any private sale or other disposition of the Collateral may be made. Each Grantor agrees that such written notice shall satisfy all requirements for notice to that Grantor which are imposed under the UCC or other applicable law with respect to the exercise of the Collateral Agent’s Rights and Remedies upon default. The Collateral Agent shall not be obligated to make any sale or other disposition of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale or other disposition of such Collateral shall have been given. The Collateral Agent may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned.

(i) Any public sale shall be held at such time or times within ordinary business hours and at such place or places as the Collateral Agent may fix and state in the notice of such sale. At any sale or other disposition, the Collateral, or portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the Collateral Agent may (in its sole and absolute discretion) determine. If any of the Collateral is sold, leased, or otherwise disposed of by the Collateral Agent on credit, the Secured Obligations shall not be deemed to have been reduced as a result thereof unless and until payment in full is received thereon by the Collateral Agent.

(j) At any public or private sale made pursuant to this Section 6.01, the Collateral Agent or any other Secured Party may bid for or purchase, free (to the extent permitted by applicable law) from any right of redemption, stay, valuation or appraisal on the part of any Grantor, the Collateral or any part thereof offered for sale and may make payment on account thereof by using any claim then due and payable to the Collateral Agent or such other Secured Party from any Grantor on account of the Secured Obligations as a credit against the purchase price, and the Collateral Agent or such other Secured Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Grantor therefor.

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(k) For purposes hereof, a written agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof. The Collateral Agent shall be free to carry out such sale pursuant to such agreement and no Grantor shall be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Collateral Agent shall have entered into such an agreement all Events of Default shall have been remedied and the Secured Obligations paid in full. Any such sale will be deemed to have been made at a commercially reasonable price.

(l) As an alternative to exercising the power of sale herein conferred upon it, the Collateral Agent may proceed by a suit or suits at law or in equity to foreclose upon the Collateral and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-appointed receiver.

(m) To the extent permitted by applicable law, each Grantor hereby waives all rights of redemption, stay, valuation and appraisal which such Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.

(n) Give notice of sole control or any other instruction under any Deposit Account Control Agreement or any other control agreement with any securities intermediary and take any action therein with respect to such Collateral.

With respect to exercise of right and remedies hereunder, including any enforcement matters, the Collateral Agent will be permitted to exercise such enforcement actions upon the occurrence and during the continuance of an Event of Default only at the direction of the Trustee or the requisite Holders pursuant to the Indenture.

SECTION 6.02 Application of Proceeds.

(a) Subject to the Intercreditor Agreement (if any), after the occurrence and during the continuance of an Event of Default, the Collateral Agent shall apply the proceeds of any collection or sale of the Collateral, as well as any Collateral consisting of cash, or any Collateral granted under any other of the Security Documents, in the following order of priority:

(i) first, to amounts owing to the Collateral Agent or the Trustee in their respective capacity as such in accordance with the terms of the Indenture;

(ii) second, to the payment in full of the Secured Obligations (the amounts so applied to be distributed among the Secured Parties pro rata in accordance with the respective principal amounts of the Secured Obligations) owed to them on the date of any such distribution; and

(iii) third, to the payment to the Company or to whosoever may be lawfully entitled to receive the same or as a court of competent jurisdiction may direct.

(b) If, despite the provisions of this Agreement, any Secured Party shall receive any payment or other recovery in excess of its portion of payments on account of the Secured Obligations to which it is then entitled in accordance with this Agreement, such Secured Party shall hold such payment or other recovery in trust for the benefit of all Secured Parties hereunder for distribution in accordance with this Section 6.02.

(c) In making the determinations and allocations required by this Section 6.02, the Collateral Agent may conclusively rely upon information supplied by the Trustee as to the amounts of unpaid principal

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and interest and other amounts outstanding with respect to the Secured Obligations, and the Collateral Agent shall have no liability to any of the Secured Parties for actions taken in reliance on such information, provided that nothing in this sentence shall prevent any Grantor from contesting any amounts claimed by any Secured Party in any information so supplied. All distributions made by the Collateral Agent pursuant to this Section 6.02 shall be (subject to any decree of any court of competent jurisdiction) final (absent manifest error).

(d) The Collateral Agent shall have absolute discretion as to the time of application of any such proceeds, moneys or balances in accordance with this Agreement and the Indenture. Upon any sale or other disposition of the Collateral by the Collateral Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the purchase money by the Collateral Agent or of the officer making the sale or other disposition shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold or otherwise disposed of and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Collateral Agent or such officer or be answerable in any way for the misapplication thereof.

ARTICLE 7

Perfection of Security Interest

SECTION 7.01 Perfection by Filing. This Agreement constitutes an authenticated record, and each Grantor hereby authorizes the Collateral Agent, pursuant to the provisions of Section 2.01, although it has no duty under this Agreement to do so, to file or cause to be filed one or more financing or continuation statements, and amendments thereto, relative to all or any part of the Collateral, in such filing offices as the Collateral Agent shall reasonably deem necessary or desirable, and the Grantors shall pay the Collateral Agent’s reasonable costs and out-of-pocket expenses incurred in connection therewith; provided that notwithstanding the foregoing, the Grantors agree that they shall be obligated to make any and all filings of Financing Statements or continuation statements, and amendments thereto, relative to all or any part of the Collateral, that are necessary or otherwise required to perfect the Security Interest of the Collateral Agent.

SECTION 7.02 Intellectual Property. A notice of security interest, substantially in the form of Exhibit D or Exhibit E, as applicable, attached hereto, will be executed and delivered by the Grantors to the Collateral Agent contemporaneously with the execution and delivery of this Agreement for the purpose of recording the grant of the security interest of the Collateral Agent in the IP Collateral with the PTO or the Copyright Office, as applicable.

SECTION 7.03 Perfection by Delivery. With respect to any certificated securities or other certificated Capital Stock included in the Collateral, each Grantor shall deliver to the Collateral Agent the stock certificates or other certificates or documents representing or evidencing such certificated securities or certificated Capital Stock accompanied by stock powers or endorsements, as applicable, executed in blank; provided that certificates representing shares of Capital Stock of Bloom Energy (India) Pvt. Ltd. constituting Collateral shall be delivered by the Company to the Collateral Agent as promptly as practicable after the date hereof. With respect to any Instruments (including Instruments representing intercompany indebtedness) or Chattel Paper included in the Collateral and having a face amount exceeding $5,000,000 individually or $5,000,000 in the aggregate, each Grantor shall deliver to the Collateral Agent all such Instruments (including Instruments representing intercompany indebtedness) or Chattel Paper to the Collateral Agent duly indorsed in blank.

SECTION 7.04 Savings Clause. Nothing contained in this Article 7 shall be construed to narrow the scope of the Collateral Agent’s Security Interest in any of the Collateral or the perfection or priority thereof or to impair or otherwise limit any of the Collateral Agent’s Rights and Remedies hereunder except (and then only to the extent) as mandated by the UCC.

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ARTICLE 8

Miscellaneous

SECTION 8.01 Notices. All communications and notices hereunder shall (except as otherwise expressly permitted herein) be in writing and given as provided in Section 18.03 of the Indenture.

SECTION 8.02 Grant of Non-Exclusive License. Without limiting the provision of Section 6.01 hereof or any other rights of the Collateral Agent as the holder of a Lien on any IP Collateral, each Grantor hereby grants to the Collateral Agent a royalty free, non-exclusive, irrevocable license (subject, in the case of Trademarks, to sufficient rights to quality control and inspection in favor of such Grantor to avoid the risk of invalidation of such Trademark and, in the case of trade secrets, to an obligation of the Collateral Agent to take reasonable steps under the circumstances to keep such trade secrets confidential to avoid the risk of invalidation of such trade secrets), to use, apply, and affix any and all Intellectual Property and IP Collateral in which any Grantor now or hereafter has rights, such license to be effective upon the Collateral Agent’s exercise of the Collateral Agent’s Rights and Remedies hereunder including, without limitation, in connection with any completion of the manufacture of Inventory or any sale or other disposition of Inventory.

SECTION 8.03 Security Interest Absolute. All rights of the Collateral Agent hereunder, the Security Interest and all obligations of the Grantors hereunder shall be absolute and unconditional irrespective of (a) any lack of validity or enforceability of the Indenture, any other Security Document or any other Indenture Document, (b) any change in the time, manner or place of payment of, or in any other term of, all or any of the Secured Obligations, or any other amendment or waiver of or any consent to any departure from the Indenture, any other Security Document, or any other Indenture Document, (c) any exchange, release or non-perfection of any Lien on other collateral, or any guarantee, securing or guaranteeing all or any of the Secured Obligations, or (d) any other circumstance that might otherwise constitute a defense available to, or a discharge of, any Grantor in respect of the Secured Obligations or this Agreement (other than circumstances under which all Secured Obligations (other than contingent indemnification obligations as to which no claims have been asserted) shall have been paid in full).

SECTION 8.04 Survival of Agreement. All covenants, agreements, representations and warranties made by the Grantors herein and in any other Security Document and in the certificates or other instruments delivered in connection with or pursuant to this Agreement or any other Security Document shall be considered to have been relied upon by the Collateral Agent and the other Secured Parties and shall survive the execution and delivery of this Agreement and the other Security Documents and the issuance of the Senior Secured Notes or any other Secured Obligations, regardless of any investigation made by any such other party or on its behalf and notwithstanding that the Collateral Agent or any Secured Party may have had notice or knowledge of any Default or incorrect representation or warranty at the time any credit is extended under the Indenture, and shall continue in full force and effect unless terminated in accordance with Section 8.14 hereof. The provisions of Section 8.06(b) shall survive and remain in full force and effect regardless of the repayment of the Secured Obligations or the termination of this Agreement or any provision hereof.

SECTION 8.05 Binding Effect; Several Agreement; Assignments. Whenever in this Agreement any of the parties hereto is referred to, such reference shall be deemed to include the successors and permitted assigns of such party, and all covenants, promises and agreements by or on behalf of the Grantors that are contained in this Agreement shall bind and inure to the benefit of each Grantor and its respective

21

successors and permitted assigns. This Agreement shall be binding upon each Grantor and the Collateral Agent and their respective successors and permitted assigns, and shall inure to the benefit of each Grantor, the Collateral Agent and the other Secured Parties and their respective successors and permitted assigns, except that no Grantor shall have the right to assign or transfer its rights or obligations hereunder or any interest herein or in the Collateral (and any such attempted assignment or transfer shall be void) except as expressly permitted by this Agreement or the Indenture. This Agreement shall be construed as a separate agreement with respect to each Grantor and may be amended, modified, supplemented, waived or released with respect to any Grantor without the approval of any other Grantor and without affecting the obligations of any other Grantor hereunder.

SECTION 8.06 Collateral Agent’s Fees and Expenses; Indemnification.

(a) Without limiting or duplicating any of their obligations under the Indenture or the other Security Documents, the Grantors jointly and severally agree to pay, in accordance with Section 17.11 of the Indenture, all reasonable expenses incurred by the Collateral Agent, its respective successors, assigns, officers, directors, employees, consultants and advisors, in connection with (i) the administration of this Agreement, (ii) the custody or preservation of, or the sale of, collection from or other realization upon any of the Collateral, (iii) the exercise, enforcement or protection of any of the Collateral Agent’s Rights and Remedies hereunder or (iv) the failure of any Grantor to perform or observe any of the provisions hereof.

(b) Any such amounts payable as provided hereunder shall be additional Secured Obligations secured hereby and by the other Security Documents and shall survive the termination of this Agreement. All amounts due under this Section 8.06 shall be payable in accordance with Section 17.11 of the Indenture.

SECTION 8.07 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.

SECTION 8.08 Waivers; Amendment.

(a) The rights, remedies, powers, privileges, and discretions of the Collateral Agent hereunder (herein, the “Collateral Agent’s Rights and Remedies”) shall be cumulative and not exclusive of any rights or remedies which it would otherwise have. No delay or omission by the Collateral Agent in exercising or enforcing any of the Collateral Agent’s Rights and Remedies shall operate as, or constitute, a waiver thereof. No waiver by the Collateral Agent of any Event of Default or of any Default under any other agreement shall operate as a waiver of any other Event of Default or other Default hereunder or under any other agreement. No single or partial exercise of any of the Collateral Agent’s Rights or Remedies, and no express or implied agreement or transaction of whatever nature entered into between the Collateral Agent and any Person, at any time, shall preclude the other or further exercise of the Collateral Agent’s Rights and Remedies. No waiver by the Collateral Agent of any of the Collateral Agent’s Rights and Remedies on any one occasion shall be deemed a waiver on any subsequent occasion, nor shall it be deemed a continuing waiver. The Collateral Agent’s Rights and Remedies may be exercised at such time or times and in such order of preference as the Collateral Agent may determine. The Collateral Agent’s Rights and Remedies may be exercised without resort or regard to any other source of satisfaction of the Secured Obligations. No waiver of any provisions of this Agreement or any other Security Document or consent to any departure by any Grantor therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) below, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice to or demand on any Grantor in any case shall entitle such Grantor or any other Grantor to any other or further notice or demand in similar or other circumstances.

(b) Neither this Agreement nor any provision hereof may be waived, amended or modified except pursuant to a written agreement entered into between the Collateral Agent and the Grantor or Grantors with respect to whom such waiver, amendment or modification is to apply, subject to any consent required in accordance with Sections 10.01 and 10.02 of the Indenture.

22

SECTION 8.09 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER SECURITY DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY) AND WAIVES DUE DILIGENCE, DEMAND, PRESENTMENT AND PROTEST AND ANY NOTICES THEREOF AS WELL AS NOTICE OF NONPAYMENT. EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS, AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 8.09.

SECTION 8.10 Severability. Any provision of this Agreement held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions hereof; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.

SECTION 8.11 Counterparts. This Agreement may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. Delivery of an executed counterpart of a signature page of this Agreement by telecopy, .pdf or e-mail shall be effective as delivery of a manually executed counterpart of this Agreement.

SECTION 8.12 Headings. Article and Section headings used herein are for convenience of reference only, are not part of this Agreement and shall not affect the construction of, or be taken into consideration in interpreting, this Agreement.

SECTION 8.13 Jurisdiction; Consent to Service of Process.

(a) Each of the Grantors agrees that any suit for the enforcement of this Agreement or any other Security Document may be brought in the courts of the State of New York sitting in the Borough of Manhattan or any federal court sitting therein, as the Collateral Agent may elect in its sole discretion, and consents to the non-exclusive jurisdiction of such courts. Each party to this Agreement hereby waives any objection which it may now or hereafter have to the venue of any such suit or any such court or that such suit is brought in an inconvenient forum and agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Agreement shall affect any right that the Collateral Agent or any other Secured Party may otherwise have to bring any action or proceeding relating to this Agreement against a Grantor or its properties in the courts of any jurisdiction.

(b) Each of the Grantors agrees that any action commenced by any Grantor asserting any claim or counterclaim arising under or in connection with this Agreement or any other Security Document shall be brought solely in a court of the State of New York sitting in the Borough of Manhattan or any federal court sitting therein, as the Collateral Agent may elect in its sole discretion, and consents to the exclusive jurisdiction of such courts with respect to any such action.

(c) Each party to this Agreement irrevocably consents to service of process in the manner provided for notices in Section 8.01. Nothing in this Agreement or any other Security Document will affect the right of any party to this Agreement to serve process in any other manner permitted by law.

23

SECTION 8.14 Termination; Release of Collateral.

(a) Subject to Section 8.03 above, the Liens securing the Senior Secured Notes will be released, in whole or in part, as provided in Section 17.05 of the Indenture.

(b) Upon such release or any release of Collateral or any part thereof in accordance with the provisions of the Indenture, the Collateral Agent shall, upon payment of its charges hereunder and upon the written request and at the sole cost and expense of the Grantors, assign, transfer and deliver to the Grantors, against receipt and without recourse to or warranty by the Collateral Agent, such of the Collateral or any part thereof to be released (in the case of a release) as may be in possession of the Collateral Agent and as shall not have been sold or otherwise applied pursuant to the terms hereof, and, with respect to any other Collateral, documents and instruments reasonably requested by any Grantor (including UCC-3 termination financing statements or releases) acknowledging the termination hereof or the release of such Collateral, as the case may be; provided, however, that such Grantor shall have delivered to the Collateral Agent, together with such written request for release, a form of release satisfactory to the Collateral Agent for execution by the Collateral Agent, an Officer’s Certificate of the Company to the effect that the transaction is in compliance with the Security Documents (on which the Collateral Agent may conclusively rely) and such other supporting documentation as the Collateral Agent may reasonably request.

SECTION 8.15 Additional Grantors. If, after the date hereof, pursuant to the terms and conditions of the Indenture, any Grantor desires to cause any Subsidiary to become a party hereto or any Person is required by the Indenture to become a party hereto, such Grantor shall cause such Person to execute and deliver to the Collateral Agent a Joinder Agreement in the form of Exhibit G and such Person shall thereafter for all purposes be a party hereto and have the same rights, benefits and obligations as a Grantor party hereto and shall be deemed to have granted to the Collateral Agent, for the benefit of the Secured Parties, the security interest described in such Joinder Agreement and Article 2 hereof.

SECTION 8.16 Intercreditor Agreement. Notwithstanding anything herein to the contrary, (i) the liens and security interests granted to the Collateral Agent for the benefit of the Secured Parties pursuant to this Agreement and (ii) the exercise of any right or remedy by the Collateral Agent hereunder or the application of proceeds (including insurance proceeds and condemnation proceeds) of any Collateral, are subject to the provisions of the Intercreditor Agreement, if any. In the event of any conflict between the terms of the Intercreditor Agreement and the terms of this Agreement, the terms of the Intercreditor Agreement shall govern.

SECTION 8.17 Incorporation by Reference. It is expressly understood and agreed that U.S. Bank National Association is entering into this Agreement solely in its capacity as Collateral Agent as appointed pursuant to the Indenture, and shall be entitled to all of the rights, privileges, immunities and protections under the Indenture as if such rights, privileges, immunities and protections were set forth herein.

SECTION 8.18 Authority of Agent. The Grantors acknowledge that the rights and responsibilities of the Collateral Agent under this Agreement with respect to any action taken by the Collateral Agent

24

or the exercise or non-exercise by the Collateral Agent of any option, voting right, request, judgment, discretion or other right or remedy provided for herein or resulting or arising out of this Agreement shall, as between the Collateral Agent and the other Secured Parties, be governed by the Indenture and by such other agreements with respect thereto as may exist from time to time among them, but, as between the Collateral Agent and the Grantors, the Collateral Agent shall be conclusively presumed to be acting as agent for the Secured Parties with full and valid authority so to act or refrain from acting, and the Grantors.

[SIGNATURE PAGES FOLLOW]

25

IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the day and year first above written.

GRANTORS:
COMPANY:
BLOOM ENERGY CORPORATION
By:	/s/ Randy Furr
Name:	Randy Furr
Title:	Chief Financial Officer and Secretary
GUARANTOR:
RYE CREEK LLC,
By:	Bloom Energy Corporation, its sole member
By:	/s/ Randy Furr
Name:	Randy Furr
Title:	Chief Financial Officer and Secretary

[Signature Page to Security Agreement]

COLLATERAL AGENT:
U.S. BANK NATIONAL ASSOCIATION, not in its individual capacity but solely as Collateral Agent
By:	/s/ Bradley E. Scarbrough
	Name:	Bradley E. Scarbrough
	Title:	Vice President

[Signature Page to Security Agreement]

SCHEDULE I

LEGAL NAME; JURISDICTION OF FORMATION; BOOKS AND RECORDS; LOCATION OF COLLATERAL

Legal Name	Jurisdiction of Formation	Chief Executive Office; Principal Place of Business; Location of Books and Records	Other Collateral Locations
Bloom Energy Corporation	Delaware	1299 Orleans Drive Sunnyvale, CA 94089	1252 Orleans Drive Sunnyvale, CA 95118
			1395 Borregas Ave. Sunnyvale, CA 94089
			NASA Research Park Building 543 P.O. Box 97 Moffett Field, CA 94035
			374 West Caribbean Dr. Sunnyvale, CA 94089
			1368 Bordeaux Dr. Sunnyvale, CA 94089
			200 Christina Parkway Newark, DE 19713
			611 Interchange Blvd. Newark, DE 19711
Rye Creek LLC	Delaware	1299 Orleans Drive Sunnyvale, CA 94089	Water Street Darby, MT 59829 (Mine is actually on an unmarked road 50-yards from Water Street)

SCHEDULE II

COMMERCIAL TORT CLAIMS

None

SCHEDULE III

(See Section 3.09 of Security Agreement)

DEPOSIT ACCOUNTS

SCHEDULE IV

LIST OF PLEDGED COLLATERAL, SECURITIES AND OTHER INVESTMENT PROPERTY

STOCKS

Name of Grantor	Issuer	Certificate Number(s)			Number of Shares		Class of Stock	Percentage of Outstanding Shares			Percentage Ownership Interest Pledged
Bloom Energy Corporation	Bloom Energy (India) Pvt. Ltd.		01 and 03	*		899,999	Equity shares		99.99	%		65	%
Bloom Energy Corporation	Yellow Jacket Energy, LLC		1			1,000	Membership Interest Units		100	%		100	%

* Certificate number(s) representing the pledged shares of Bloom Energy (India) Pvt. Ltd. will change to reflect the 65% pledge.

BONDS OR PROMISSORY NOTES

None.

SECURITIES ACCOUNTS OR OTHER INVESTMENT PROPERTY

(CERTIFICATED AND UNCERTIFICATED)

Name of Grantor	Issuer	Description of Collateral	Percentage Ownership Interest Pledged
Bloom Energy Corporation	Bloom Energy International (Asia) Ltd.	Capital Stock	65% of voting Capital Stock
Bloom Energy Corporation	Rye Creek LLC	Membership Interest	100% of membership interest

EXHIBIT A

List of Copyrights

United States Copyright Registrations and Applications

None.

EXHIBIT B

List of Patents

United States Patents and Patent Applications

Grantor: Bloom Energy Corporation

Geography	Serial No.	Filing Date	Patent Number	Patent Date	Title
US	60/357,636	2/20/2002			Solid Oxide Fuel Cell and System
US	60/377,199	5/3/2002			Solid Oxide Regenerative Fuel Cell for Airplane Power Generation and Storage
US	10/369,103	2/20/2003			A Temperature Sensitive Absorption Oxygen Enrichment System
US	10/300,021	11/20/2002	7,067,208	6/27/2006	A Load Matched Power Generation System Including A Solid Oxide Fuel Cell and A Heat Pump and An Optional Turbine
US	10/368,425	2/20/2003			A Fuel Water Vapor Replenishment System For A Fuel Cell
US	10/299,863	11/20/2002	6,854,688	2/15/2005	Solid Oxide Regenerative Fuel Cell for Airplane Power Generation and Storage
US	10/394,203	3/24/2003	6,924,053	8/2/2005	Solid Oxide Fuel Cell with Enhanced Fuel Processing
US	60/420,259	10/23/2002			Solid Oxide Regenerative Fuel Cell
US	10/394,202	3/24/2003	7,045,238	5/16/2006	SORFC Power and Oxygen Generation Method and System
US	10/368,493	2/20/2003	7,045,237	5/16/2006	Textured Electrolyte for a Solid Oxide Fuel Cell
US	10/368,348	2/20/2003	7,255,956	8/14/2007	Environmentally Tolerant Anode Catalyst for a Solid Oxide Fuel Cell
US	10/369,322	2/20/2003	7,144,651	12/5/2006	High-temperature Compliant Compression Seal
US	10/369,133	2/20/2003	7,135,248	11/14/2006	Metal Felt Current Conductor and Gas Flow Distributor
PCT	PCT /US03/04989	2/20/2003			Solid Oxide Fuel Cell and System
PCT	PCT /US03/04808	2/20/2003			Solid Oxide Fuel Cell and System
US	10/822,707	4/13/2004			Offset Interconnect for a Solid Oxide Fuel Cell and Method of Making Same
US	60/461,190	4/9/2003			Co-production of Hydrogen and Electricity with Valuable Byproducts in a Solid Oxide Electrochemical System

1

Geography	Serial No.	Filing Date	Patent Number	Patent Date	Title
PCT	PCT /US03/13151	4/29/2003			Solid Oxide Regenerative Fuel Cell for Airplane Power Generation and Storage
US	10/446,704	5/29/2003	7,482,078	1/27/2009	Co-production of Hydrogen and Electricity in a High Temperature Electrochemical System
US	10/428,804	5/5/2003	6,908,702	6/21/2005	Fuel Cell For Airship Power Generation And Heating
US	10/465,636	6/20/2003	7,201,979	4/10/2007	SORFC System and Method with an Exothermic Net Electrolysis Reaction
US	10/635,446	8/7/2003	6,821,663	11/23/2004	Solid Oxide Regenerative Fuel Cell
US	10/658,275	9/10/2003	7,150,927	12/19/2006	SORFC System with Non-Noble Metal Electrode Compositions
US	10/653,240	9/3/2003	7,364,810	4/29/2008	Combined Energy Storage and Fuel Generation with Reversible Fuel Cell
PCT	PCT/ US03/29127	10/15/2003			Solid Oxide Regenerative Fuel Cell
US	60/537,899	1/22/2004			High Temperature Fuel Cell System And Method Of Operating Same
PCT	PCT -US04/08741	3/23/2004			Solid Oxide Regenerative Fuel Cell with Selective Anode Tail Gas Circulation
PCT	PCT – US04/08742	3/23/2004			SORFC Power and Oxygen Generation Method and System
US	60/552,202	3/12/2004			High Temperature Fuel Cell System with Improved Balance of Plant Efficiency
US	10/866,238	6/14/2004	7,575,822	8/18/2009	Optimizing Efficiency and/or Cost of Generated Fuel in Combined Entergy Storage and Fuel Generation with Reversible Fuel Cell
PCT	PCT – US04/08745	3/23/2004			SORFC System and Method With an Exothermic Net Electrolysis Reaction
PCT	PCT – US04/10818	4/7/2004			Co-production of Hydrogen and Electricity in a High Temperature Electrochemical System
US	10/853,194	5/26/2004			Fuel Cell For Airship Power Generation And Heating
PCT	PCT – US04/13895	5/5/2004			Fuel Cell For Airship Power Generation And Heating
US	60/602,891	8/20/2004			Nanostructured Fuel Cell Electrode
US	60/608,902	9/13/2004			Hydrocarbon Gas Carbon Nanotube Storage Media

2

Geography	Serial No.	Filing Date	Patent Number	Patent Date	Title
PCT	PCT- US2004/027347	8/24/2004			Combined Energy Storage and Fuel Generation with Reversible Fuel Cell
US	11/124,120	5/9/2005			High temperature fuel cell system with integrated heat exchanger network
US	11/095,552	4/1/2005	7,514,166	4/7/2009	Periodic reduction of SOFC anodes to extend stack lifetime
PCT	PCT- US04/29458	9/10/2004			SORFC System with Non-Noble Metal Electrode Compositions
PCT	PCT- US04/41082	12/9/2004			High Temperature Fuel Cell System And Method Of Operating Same
US	11/002,681	12/3/2004	7,422,810	9/9/2008	High Temperature Fuel Cell System And Method Of Operating Same
US	11/125,267	5/10/2005	7,700,210	4/20/2010	Increasing Thermal Dissipation of Fuel Cell Stacks under Partial Electrical Load
US	60/664,294	3/23/2005			Perovskite Materials with Combined Pr, La, Sr, “A” Site Doping for Improved Cathode Durability
US	60/792,614	4/18/2006			Compliant Cathode Contact Materials
US	60/698,468	7/13/2005			Dense Cermet Interconnection Material
US	60/660,515	3/10/2005			Fuel Cell Stack With Internal Fuel Manifold Configuration
US	60/666,304	3/30/2005			Solid Oxide Fuel Cell with Improved Electrode Composition
US	11/100,489	4/7/2005	7,524,572	4/28/2009	Integrated Reformer-Combustor-Stack unit containing catalyst coated corrugated foil for a solid oxide fuel cell system
US	11/076,102	3/9/2005			Geometric feature driven flow equalization in fuel cell stack gas flow separator
US	11/236,737	9/28/2005	7,785,744	8/31/2010	Fuel Cell Water Purification System and Method
US	11/028,506	1/4/2005			Fuel cell system with independent reformer temperature control
US	11/188,118	7/25/2005			Gas separation method and apparatus using partial pressure swing adsorption
PCT	PCT/US05/ 06164	2/25/2005			Offset Interconnect for a Solid Oxide Fuel Cell and Method of Making Same
PCT	PCT/US05/ 10671	3/31/2005			Optimizing Efficiency and/or Cost of Generated Fuel in Combined Entergy Storage and Fuel Generation with Reversible Fuel Cell

3

Geography	Serial No.	Filing Date	Patent Number	Patent Date	Title
US	11/207,018	8/19/2005			Nanostructured fuel cell electrode
PCT	PCT/US05/ 029747	8/19/2005			Nanostructured fuel cell electrode
US	11/138,292	5/27/2005			Solid Oxide Fuel Cell with Enhanced Fuel Processing
US	11/274,928	11/16/2005	8,097,374	1/17/2012	Cascaded fuel cell reactants
US	11/188,123	7/25/2005	7,520,916	4/21/2009	Partial pressure swing adsorption system for providing hydrogen to a vehicle fuel cell
US	60/701,976	7/25/2005			Fuel cell system with partial recycling of anode exhaust
US	60/701,977	7/25/2005			Fuel cell system with electrochemical anode exhaust recycling
US	11/188,120	7/25/2005	7,591,880	9/22/2009	Fuel cell anode exhaust fuel recovery by adsorption
PCT	PCT/US05/32138	9/9/2005			Hydrocarbon gas carbon nanotube storage media
US	11/221,983	9/9/2005			Hydrocarbon gas carbon nanotube storage media
US	60/809,395	5/31/2006			Dense cermet interconnection material
US	11/326,400	1/6/2006			Solid oxide fuel cell system for aircraft power, heat, water, and oxygen generation
US	11/641,942	12/20/2006	7,393,603	7/1/2008	Methods for Fuel Cell System Optimization
US	11/404,760	4/17/2006	7,599,760	10/6/2009	Online Configurable Control System for Fuel Cells
US	60/808,113	5/25/2006			Deactivation of SOFC Anode Substrate For Direct Internal Reforming
US	11/524,241	9/21/2006	7,846,600	12/7/2010	Adaptive Purge Control to Prevent Electrode Redox Cycles in Fuel Cell Systems
US	60/816,878	6/27/2006			Preoxidation of Metallic Interconnects
US	60/760,933	1/23/2006			Modular fuel cell system
US	11/433,582	5/15/2006	7,781,912	8/24/2010	Fuel Cell Start-Up from a Non-Powered Up Condition
US	11/436,537	5/19/2006			Hermetic High Temperature Dielectric and Thermal Expansion Compensator
US	60/842,361	9/6/2006			Flexible Fuel Cell System Configuration to Handle Multiple Fuels
US	60/861,708	11/30/2006			Integrated stack reformer/combustor fuel manifold plate

4

Geography	Serial No.	Filing Date	Patent Number	Patent Date	Title
US	60/853,443	10/23/2006			Dual Function Heat Exchanger for Start-Up Humidification and Facility Heating in SOFC System
US	11/276,717	3/10/2006	7,713,649	5/11/2010	Fuel Cell Stack with Internal Fuel Manifold Configuration
US	11/389,282	3/27/2006			Solid Oxide Reversible Fuel Cell with Improved Electrode Composition
US	11/384,426	3/21/2006			Perovskite Materials with Combined Pr, La, Sr, “A” Site Doping for Improved Cathode Durability
PCT	PCT/US2006/017655	5/8/2006			High temperature fuel cell system with integrated heat exchanger network
US	60/782,268	3/15/2006			Low pressure hydrogen powered vehicle and fuel cell system for generating hydrogen for the vehicle
US	11/432,503	5/12/2006	7,572,530	8/11/2009	SORFC Power and Oxygen Generation Method and System
US	60/788,044	4/3/2006			Fuel cell system and balance of plant configuration
US	60/788,043	4/3/2006			Fuel cell stack components and materials
US	11/717,774	3/14/2007	7,878,280	2/1/2011	Low pressure hydrogen powered vehicle and fuel cell system for generating hydrogen for the vehicle
US	12/889,776	9/24/2010			Low Pressure Hydrogen Fueled Vehicle and Method of Operating Same
US	60/788,042	4/3/2006			Ship-board fuel cell integration
US	11/522,976	9/19/2006	8,273,487	9/25/2012	High temperature fuel cell system for operation with low purity ethanol
US	13/591,934	8/22/2012	8,445,146	5/21/2013	High temperature fuel cell system for operation with low purity ethanol
US	11/526,029	9/25/2006	7,968,245	6/28/2011	High utilization stack
US	60/861,444	11/29/2006			FUEL CELL SYSTEMS WITH FUEL UTILIZATION AND OXIDATION MONITORING
US	11/457,016	7/12/2006			Cermet and Ceramic Interconnect for a Solid Oxide Fuel Cell
US	11/491,487	7/24/2006			Fuel cell system with partial recycling of anode exhaust
PCT	PCT/US2006/028613	7/24/2006			Fuel cell system with partial recycling of anode exhaust
US	11/491,488	7/24/2006	8,101,307	1/24/2012	Fuel cell system with electrochemical anode exhaust recycling

5

Geography	Serial No.	Filing Date	Patent Number	Patent Date	Title
PCT	PCT/US2006/028614	7/24/2006			Fuel cell system with electrochemical anode exhaust recycling
PCT	PCT/US2006/028612	7/24/2006			Partial pressure swing adsorption system for providing hydrogen to a vehicle fuel cell
PCT	PCT/US2006/028615	7/24/2006			Gas separation method and apparatus using partial pressure swing adsorption
US	60/875,825	12/20/2006			Model Based Real Time Optimization of Fuel Cell Clusters
US	60/935,471	8/15/2007			Fuel Cell System Components
PCT	PCT/US2006/037459	9/27/2006			Fuel Cell Water Purification System and Method
US	11/656,445	1/23/2007	8,071,248	12/6/2011	Structure and method for optimizing system efficiency when operating an SOFC system with alcohol fuels
US	11/797,708	5/7/2007	7,705,490	4/27/2010	Integral Stack Columns
US	11/797,707	5/7/2007	7,974,106	7/5/2011	Ripple Cancellation
US	13/154,888	6/7/2011	8,289,730	10/16/2012	Ripple Cancellation
US	60/907,524	4/5/2007			Solid Oxide fuel Cell System with Internal Reformation
US	60/852,396	10/18/2006			Anode with remarkable stability under conditions of extreme fuel starvation
US	11/594,797	11/9/2006	7,887,971	2/15/2011	SORFC System with Non-Noble Metal Electrode Compositions
US	12/986,291	1/7/2011	8,053,136	11/8/2011	SORFC System with Non-Noble Metal Electrode Compositions
US	60/924,874	6/4/2007			Structure for high temperature fuel cell system start up
US	60/887,398	1/31/2007			Fuel cell stack components
US	11/703,152	2/7/2007			Venturi catalytic reactor inlet fuel mixer
US	60/907,706	4/13/2007			Heterogenous ceramic composite (HZ2C) for SOFC application
US	11/711,625	2/28/2007			Flexible current collector
US	11/707,070	2/16/2007			SOFC Interconnect
US	11/656,006	1/22/2007	9,190,693	11/17/2015	Modular fuel cell system
US	14/881,685	10/13/2015			Modular fuel cell system

6

Geography	Serial No.	Filing Date	Patent Number	Patent Date	Title
PCT	PCT/US 2007/001584	1/22/2007			Modular fuel cell system
US	11/656,563	1/23/2007			Integrated Solid Oxide Fuel Cell and Fuel Processor
PCT	PCT/US 2007/001779	1/23/2007			Integrated Solid Oxide Fuel Cell and Fuel Processor
US	60/929,161	6/15/2007			Dot pattern contact layer
US	11/785,034	4/13/2007			Composite Anode Showing Little Performance Loss With Time
US	60/901,638	2/16/2007			Building/Campus Instantaneous Energy Consumption and Cleanliness Display System
US	12/268,585	11/11/2008	8,986,905	3/24/2015	Fuel Cell Interconnect
US	14/601,708	1/21/2015			Fuel Cell Interconnect
PCT	PCT/US 2007/006373	3/14/2007			Low pressure hydrogen powered vehicle and fuel cell system for generating hydrogen for the vehicle
PCT	PCT/US07/08225	4/2/2007			Fuel cell system and balance of plant configuration
US	11/730,541	4/2/2006	7,883,813	2/8/2011	FUEL CELL SYSTEM VENTILATION SCHEME
US	11/730,529	4/2/2006	7,704,617	4/27/2010	HYBRID REFORMER FOR FUEL FLEXIBILITY
US	11/730,540	4/2/2006	8,822,094	9/2/2014	FUEL CELL SYSTEM OPERATED ON LIQUID FUELS
US	14/469,781	8/27/2014			FUEL CELL SYSTEM OPERATED ON LIQUID FUELS
PCT	PCT/US07/08224	4/2/2007			Fuel cell stack components and materials
US	11/730,255	3/30/2007	7,833,668	11/16/2010	SOFC system with 100 percent fuel utilization
US	11/730,555	4/2/2006	7,951,509	5/31/2010	Compliant Cathode Contact Materials
US	11/730,256	3/20/2007	7,883,803	2/8/2011	SOFC System Producing Reduced Atmospheric Carbon Dioxide Using a Molten Carbonate Carbon Dioxide Pump
US	11/802,006	5/18/2007			Deactivation of SOFC Anode Substrate For Direct Internal Reforming
US	11/798,673	5/16/2007	8,652,691	2/18/2014	Preoxidation of Metallic Interconnects
US	11/905,477	10/1/2007			INTEGRATED FUEL LINE TO SUPPORT CPOX AND SMR REACTIONS IN SOFC SYSTEMS

7

Geography	Serial No.	Filing Date	Patent Number	Patent Date	Title
US	13/414,354	3/7/2012			CPOX Reactor Design for Liquid Fuel and Liquid Water
US	11/905,051	9/27/2007	8,920,997	12/30/2014	HYBRID FUEL HEAT EXCHANGER - PRE-REFORMER IN SOFC SYSTEMS
US	61/000,891	10/30/2007			SOFC ELECTRODE SINTERING BY MICROWAVE HEATING
US	12/149,488	5/2/2008	8,232,676	7/31/2012	UNINTERRUPTIBLE FUEL CELL SYSTEM
US	11/898,065	9/7/2007			PROCESSING OF POWDERS OF A REFACTORY METAL BASED ALLOY FOR HIGH DENSIFICATION
US	60/996,352	11/13/2007			MIXED SUPPORT FUEL CELL DESIGN
US	60/935,092	7/26/2007			HOT BOX DESIGN WITH A MULTI-STEAM HEAT EXCHANGER AND SINGLE AIR CONTROL
PCT	PCT/US2007/ 019887	9/13/2007			Adaptive Purge Control to Prevent Electrode Redox Cycles in Fuel Cell Systems
US	11/896,487	8/31/2007			Flexible Fuel Cell System Configuration to Handle Multiple Fuels
PCT	PCT/US 2007/019155	8/31/2007			Flexible Fuel Cell System Configuration to Handle Multiple Fuels
PCT	PCT/US 2007/19156	8/31/2007			High temperature fuel cell system for operation with low purity ethanol
PCT	PCT/US2007/ 019888	9/13/2007			High utilization stack
US	11/984,605	11/20/2007	8,293,412	10/23/2012	Enhanced efficiency of a combined SORFC energy storage and fuel generation system
US	11/907,204	10/10/2007	8,748,056	6/10/2014	Anode with remarkable stability under conditions of extreme fuel starvation
US	14/270,686	5/6/2014			Anode with Remarkable Stability Under Conditions of Extreme Fuel Starvation
PCT	PCT/US2007/ 021630	10/10/2007			Anode with remarkable stability under conditions of extreme fuel starvation
US	11/907,205	10/10/2007	8,435,689	5/7/2013	Dual Function Heat Exchanger for Start-Up Humidification and Facility Heating in SOFC System
PCT	PCT/US2007/ 021597	10/10/2007			Dual Function Heat Exchanger for Start-Up Humidification and Facility Heating in SOFC System

8

Geography	Serial No.	Filing Date	Patent Number	Patent Date	Title
US	61/064,143	2/19/2008			FUEL CELL SYSTEM FOR CHARGING ELECTRIC VEHICLES
US	12/379,618	2/25/2009	8,652,697	2/18/2014	METHOD OF MEASURING AND CHARACTERIZING INDIVIDUAL CELL OPERATING PROPERTIES…
US	14/096,616	12/4/2013	8,986,900	3/24/2015	Method of Controlling a Fuel Cell System Using Impedance Determination
US	14/627,681	2/20/2015	9,190,681	11/17/2015	Fuel Cell Monitoring and Control System
US	12/458,356	7/8/2009	8,288,891	10/16/2012	INTEGRATED FUEL CELL SYSTEM WITH AUXILIARY POWER DELIVERY
US	13/618,701	9/14/2012			INTEGRATED FUEL CELL SYSTEM WITH AUXILIARY POWER DELIVERY
PCT	PCT/US10/41221	7/7/2010			INTEGRATED FUEL CELL SYSTEM WITH AUXILIARY POWER DELIVERY
US	11/987,220	11/28/2007	8,197,978	6/12/2012	FUEL CELL SYSTEMS WITH FUEL UTILIZATION AND OXIDATION MONITORING
PCT	PCT/US2007/024457	11/28/2007			FUEL CELL SYSTEMS WITH FUEL UTILIZATION AND OXIDATION MONITORING
US	12/005,344	12/27/2007	7,781,112	8/24/2010	Combined Energy Storage and Fuel Generation with Reversible Fuel Cell
US	12/000,924	12/18/2007	7,951,496	5/31/2011	Model Based Real Time Optimization of Fuel Cell Clusters
PCT	PCT/US2007/025785	12/18/2007			Model Based Real Time Optimization of Fuel Cell Clusters
PCT	PCT/US2007/025727	12/17/2007			Methods for Fuel Cell System Optimization
PCT	PCT/US2008 /000413	1/11/2008			Structure and method for optimizing system efficiency when operating an SOFC system with alcohol fuels
US	61/129,620	7/8/2008			Method of independent power control of alternative energy systems for power sharing and parallel operation

9

Geography	Serial No.	Filing Date	Patent Number	Patent Date	Title
US	12/078,926	4/8/2008			Method and system for reducing carbon dioxide emissions and tracking said reductions through the use of financial incentives
US	61/129,622	7/8/2008			Method of startup of FCS system
US	61/136,091	8/12/2008			Grooved alumina dielectric
US	61/129,838	7/23/2008			OPERATION OF FUEL CELL SYSTEMS WITH REDUCED CARBON FORMATION AND ANODE LEADING EDGE DAMAGE
US	12/149,816	5/8/2008	8,211,583	7/3/2012	Parameterized control for flexible fuel operation
US	13/525,663	6/18/2012	8,685,583	4/1/2014	Derivation of Control Parameters of Fuel Cell Systems for Flexible Fuel Operation
US	14/182,551	2/18/2014	8,968,955	3/3/2015	Derivation of Control Parameters of Fuel Cell Systems for Flexible Fuel Operation
US	14/603,788	1/23/2015			Derivation of Control Parameters of Fuel Cell Systems for Flexible Fuel Operation
US	12/149,984	5/12/2008	8,142,943	3/27/2012	SOFC column temperature equalization by internal reforming and fuel cascading
US	12/071,396	2/20/2008			SOFC electrochemical anode tail gas oxidizer
US	12/222,295	8/6/2008	9,059,434	6/16/2015	Structure and method for SOFC operation with failed cell diode bypass
US	61/064,566	3/12/2008			Multi-material fuel cell seals and composite high temperature seal
US	61/064,144	2/19/2008			HB SMR and ATO design
US	12/010,884	1/30/2008	8,110,319	2/7/2012	Fuel cell stack components
US	13/339,860	12/29/2011	8,268,502	9/18/2012	Fuel cell stack components
US	13/591,820	8/22/2012	8,445,157	5/21/2013	Fuel cell stack components
PCT	PCT/US2008/ 001162	1/30/2008			Fuel cell stack components
PCT	PCT/US2008/ 001367	2/1/2008			Venturi catalytic reactor inlet fuel mixer
PCT	PCT/US2008/ 01814	2/12/2008			SOFC Interconnect

10

Geography	Serial No.	Filing Date	Patent Number	Patent Date	Title
PCT	PCT/US2008/ 002114	2/19/2008			Current collector for fuel cell systems
PCT	PCT/US08 /02410	2/25/2008			SOFC system with 100 percent fuel utilization
PCT	PCT/US2008/ 002411	2/25/2008			SOFC System Producing Reduced Atmospheric Carbon Dioxide Using a Molten Carbonate Carbon Dioxide Pump
US	12/222,294	8/6/2008			Fuel cell system with increased floor density
US	61/129,759	7/17/2008			Electrolyte supported cell designed for longer life and higher power
PCT	PCT/US2008/ 004216	4/1/2008			Solid Oxide Fuel Cell System with Internal Reformation
US	12/081124	4/10/2008			HETEROGENEOUS CERAMIC COMPOSITE SOFC ELECTROLYTE
PCT	PCT/US2008/ 004600	4/10/2008			HETEROGENEOUS CERAMIC COMPOSITE SOFC ELECTROLYTE
PCT	PCT/US2008/ 004710	4/11/2008			Composite Anode Showing Little Performance Loss With Time
PCT	PCT/US2008/ 005517	4/30/2008			Integral Stack Columns
PCT	PCT/US2008/ 005516	4/30/2008			Ripple Cancellation
US	12/458,342	7/8/2009	8,445,150	5/21/2013	GRID FREQUENCY-RESPONSIVE SOLID OXIDE FUEL CELL SYSTEM
PCT	PCT/US2010/41179	7/7/2010			GRID FREQUENCY-RESPONSIVE SOLID OXIDE FUEL CELL SYSTEM
US	61/129,623	7/8/2008			Automated Fuel Cell Load Reduction Controller
US	61/193,596	12/9/2008			Air Protected Hermetic Anode Side Seal
US	61/129,882	7/25/2008			Electrolyte Hole Support
US	61/129,621	7/8/2008			HEAT EXCHANGER WITH FLOW ROTATION CONTROL
US	12/222,712	8/14/2008	7,704,618	4/27/2010	HIGH TEMPERATURE FUEL CELL SYSTEM AND METHOD OF OPERATING SAME

11

Geography	Serial No.	Filing Date	Patent Number	Patent Date	Title
US	12/155,367	6/3/2008	7,846,599	12/7/2010	STRUCTURE FOR HIGH TEMPERATURE FUEL CELL SYSTEM START UP AND SHUTDOWN
PCT	PCT/US2008/ 006993	6/3/2008			STRUCTURE FOR HIGH TEMPERATURE FUEL CELL SYSTEM START UP AND SHUTDOWN
US	12/213,088	6/13/2008			DOT PATTERN CONTACT LAYER
US	13/863,809	4/16/2013			DOT PATTERN CONTACT LAYER
PCT	PCT/US2008/ 007360	6/13/2008			DOT PATTERN CONTACT LAYER
US	12/292,078	11/12/2008	8,691,470	4/8/2014	SEAL COMPOSITIONS, METHODS, AND STRUCTURES FOR PLANAR SOLID OXIDE FUEL CELLS
US	14/243,588	4/2/2014			SEAL COMPOSITIONS, METHODS, AND STRUCTURES FOR PLANAR SOLID OXIDE FUEL CELLS
US					SEAL COMPOSITIONS, METHODS, AND STRUCTURES FOR PLANAR SOLID OXIDE FUEL CELLS
US	61/202,639	3/20/2009			Crack Free Electrolyte
PCT	PCT/US2008 /008951	7/24/2008			HYBRID FUEL HEAT EXCHANGER - PRE-REFORMER IN SOFC SYSTEMS
US	12/219,684	7/25/2008	8,137,855	3/20/2012	HOT BOX DESIGN WITH A MULTI-STEAM HEAT EXCHANGER AND SINGLE AIR CONTROL
US	13/415,427	3/8/2012	9,166,240	10/20/2015	HOT BOX DESIGN WITH A MULTI-STEAM HEAT EXCHANGER AND SINGLE AIR CONTROL
PCT	PCT/US2008 /009069	7/25/2008			HOT BOX DESIGN WITH A MULTI-STEAM HEAT EXCHANGER AND SINGLE AIR CONTROL
US	12/222,736	8/14/2008	8,852,820	10/7/2014	Fuel Cell System Components
US	14/476,851	9/4/2014			Fuel Cell System Components
US	12/230,486	8/29/2008	8,071,241	12/6/2011	Co-production of Hydrogen and Electricity in a High Temperature Electrochemical System

12

Geography	Serial No.	Filing Date	Patent Number	Patent Date	Title
US	12/225,915	4/2/2007	8,691,474	4/8/2014	Fuel cell stack components and materials
US	12/289,510	10/29/2008			SOFC ELECTRODE SINTERING BY MICROWAVE HEATING
US	12/29,2151	11/12/2008	8,067,129	11/29/2011	ELECTROLYTE SUPPORTED CELL DESIGNED FOR LONGER LIFE AND HIGHER POWER
US	13/268,233	10/7/2011	8,999,601	4/7/2015	ELECTROLYTE SUPPORTED CELL DESIGNED FOR LONGER LIFE AND HIGHER POWER
US	13/269,006	10/7/2011	8,333,919	12/18/2012	ELECTROLYTE SUPPORTED CELL DESIGNED FOR LONGER LIFE AND HIGHER POWER
PCT	PCT/US2008/012671	11/12/2008			ELECTROLYTE SUPPORTED CELL DESIGNED FOR LONGER LIFE AND HIGHER POWER
PCT	PCT/US2008/ 084027	11/19/2008			Enhanced efficiency for a combined SORFC energy storage and fuel generation system
US	61/193377	11/21/2008			Coating Process for Production of Fuel Cell Components
US	61/202,876	4/15/2009			FUEL CELL SYSTEM WITH ELECTROCHEMICAL HYDROGEN PUMP AND METHOD OF OPERATING SAME
US	12/402,423	3/11/2009	8,097,378	1/17/2012	STACK SEAL INTERFACE ADAPTER
US	61/202,683	3/26/2009			FUEL CELL SYSTEM WITH INTERRUPTION CONTROL
US	12/379,310	2/18/2009	8,624,549	1/7/2014	FUEL CELL SYSTEM FOR CHARGING AN ELECTRIC VEHICLE
US	14/064,783	10/28/2013			FUEL CELL SYSTEM FOR CHARGING AN ELECTRIC VEHICLE
PCT	PCT/US2009 /034367	2/18/2009			FUEL CELL SYSTEM FOR CHARGING AN ELECTRIC VEHICLE
US	12/379,299	2/18/2009	8,288,041	10/16/2012	FUEL CELL SYSTEM CONTAINING ANODE TAIL GAS OXIDIZER AND HYBRID HEAT EXCHANGER / REFORMER
US	13/619,289	9/14/2012	8,535,839	9/17/2013	FUEL CELL SYSTEM CONTAINING ANODE TAIL GAS OXIDIZER AND HYBRID HEAT EXCHANGER / REFORMER

13

Geography	Serial No.	Filing Date	Patent Number	Patent Date	Title
US	14/018,963	9/5/2013	9,105,894	8/11/2015	FUEL CELL SYSTEM CONTAINING ANODE TAIL GAS OXIDIZER AND HYBRID HEAT EXCHANGER / REFORMER
PCT	PCT/US2009 /000991	2/18/2009			FUEL CELL SYSTEM CONTAINING ANODE TAIL GAS OXIDIZER AND HYBRID HEAT EXCHANGER / REFORMER
US	12/382,173	3/10/2009	7,931,997	4/26/2011	MULTI-MATERIAL HIGH TEMPERATURE FUEL CELL SEALS
US	61/272,056	8/12/2009			INTERNAL REFORMING ANODE FOR SOLID OXIDE FUEL CELL
US	12/850,885	8/5/2010	8,617,763	12/31/2013	INTERNAL REFORMING ANODE FOR SOLID OXIDE FUEL CELL
PCT	PCT/US10/ 45182	8/11/2010			Internal Reforming Anode for Solid Oxide Fuel Cells
US	12/458,355	7/8/2009	8,535,836	9/17/2013	FUEL CELL SYSTEM WITH QUICK CONNECT COMPONENTS
US	14/019,702	9/6/2013			FUEL CELL SYSTEM WITH QUICK CONNECT COMPONENTS
PCT	PCT/US2010/41238	7/7/2010			FUEL CELL SYSTEM WITH QUICK CONNECT COMPONENTS
US	11/124,817	5/9/2005	7,858,256	12/28/2010	HIGH TEMPERATURE FUEL CELL SYSTEM WITH INTEGRATED HEAT EXCHANGER NETWORK
US	61/272,227	9/2/2009			CONFIGURATION FOR MULTISTREAM HEAT EXCHANGER FOR AN SOFC SYSTEM
US	12/873,935	9/1/2010	8,445,156	5/21/2013	Multi-Stream Heat Exchanger for a Fuel Cell System
US	13/850,365	3/26/2013			Multi-Stream Heat Exchanger for a Fuel Cell System
PCT	PCT/US10/ 47540	9/1/2010			Multi-Stream Heat Exchanger for a Fuel Cell System
US	12/535,971	8/5/2009			SOLID OXIDE REVERSIBLE FUEL CELL WITH IMPROVED ELECTRODE COMPOSITION
US	12/458,341	7/8/2009	8,071,246	12/6/2011	METHOD OF OPTIMIZING OPERATING EFFICIENCY OF FUEL CELLS
US	13/286,749	11/1/2011	8,277,992	10/2/2012	METHOD OF OPTIMIZING OPERATING EFFICIENCY OF FUEL CELLS

14

Geography	Serial No.	Filing Date	Patent Number	Patent Date	Title
US	13/590,625	8/21/2012	8,663,859	3/4/2014	METHOD OF OPTIMIZING OPERATING EFFICIENCY OF FUEL CELLS
US	12/458,172	7/2/2009	8,872,392	10/28/2014	FUEL CELL CONTROL SYSTEM
US	12/458,173	7/2/2009	8,263,276	9/11/2012	STARTUP POWER CONTROL IN A FUEL CELL CONTROL SYSTEM
US	12/457,982	6/26/2009	9,142,847	9/22/2015	FUEL CELL LOAD CONTROLLER
US	12/458,171	7/2/2009	8,968,958	3/3/2015	Voltage Lead Jumper Connected Fuel Cell Columns
US	14/597,650	1/15/2015			Voltage Lead Jumper Connected Fuel Cell Columns
US	12/507,670	7/22/2009			OPERATION OF FUEL CELL SYSTEMS WITH REDUCED CARBON FORMATION AND ANODE LEADING EDGE DAMAGE
PCT	PCT/US10/ 42316	7/16/2010			OPERATION OF FUEL CELL SYSTEMS WITH REDUCED CARBON FORMATION AND ANODE LEADING EDGE DAMAGE
US	12/461,413	8/11/2009	8,404,398	3/26/2013	HERMETIC HIGH TEMPERATURE DIELECTRIC WITH GROOVE AND THERMAL EXPANSION COMPENSATOR
US	12/585,627	9/21/2009	8,185,214	5/22/2012	AN ONLINE CONFIGURABLE CONTROL SYSTEM FOR FUEL CELLS
US	61/272,494	9/30/2009			FUEL CELL STACK COMPRESSION DEVICES AND METHODS
US	12/892,582	9/28/2010	8,785,074	7/22/2014	FUEL CELL STACK COMPRESSION DEVICES AND METHODS
US	14/271,158	5/6/2014			FUEL CELL STACK COMPRESSION DEVICES AND METHODS
PCT	PCT/US10/ 50577	9/28/2010			FUEL CELL STACK COMPRESSION DEVICES AND METHODS
US	61/282528	2/25/2010			METHOD OF PROGRAMMING PROCESSORS THROUGH CAN INTERFACE WITHOUT CHANGING THE BOOT MODE SELECT PINS
US	13/033,990	2/24/2011	8,826,261	9/2/2014	PROGRAMMING PROCESSORS THROUGH CAN INTERFACE WITHOUT CHANGING THE BOOT MODE SELECT PINS

15

Geography	Serial No.	Filing Date	Patent Number	Patent Date	Title
US	12/591,464	11/20/2009			COATING PROCESS FOR PRODUCTION OF FUEL CELL COMPONENTS
PCT	PCT/US2009/ 065095	11/19/2009			COATING PROCESS FOR PRODUCTION OF FUEL CELL COMPONENTS
US	12/591,986	12/7/2009	8,623,569	1/7/2014	FUEL CELL SEALS
US	12/591,872	12/3/2009	8,685,579	4/1/2014	INCREASING THERMAL DISSIPATION OF FUEL CELL STACKS UNDER PARTIAL ELECTRICAL LOAD
US	14/187,546	2/24/2014	9,166,246	10/20/2015	INCREASING THERMAL DISSIPATION OF FUEL CELL STACKS UNDER PARTIAL ELECTRICAL LOAD
US	61/298,468	1/26/2010			PHASE STABLE DOPED ZIRCONIA ELECTROLYTE COMPOSITIONS WITH LOW DEGRADATION
US	13/009,085	1/19/2011	8,580,456	11/12/2013	PHASE STABLE DOPED ZIRCONIA ELECTROLYTE COMPOSITIONS WITH LOW DEGRADATION
US	14/055,557	10/16/2013			PHASE STABLE DOPED ZIRCONIA ELECTROLYTE COMPOSITIONS WITH LOW DEGRADATION
WO	PCT/US11/21664	1/19/2011			PHASE STABLE DOPED ZIRCONIA ELECTROLYTE COMPOSITIONS WITH LOW DEGRADATION
US	61/374,424	8/17/2010			METHOD FOR SOFC CELL FABRICATION
US	13/211,903	8/17/2011	8,449,702	5/28/2013	Method for Solid Oxide Fuel Cell Fabrication
US	13/869,244	4/24/2013	8,940,112	1/27/2015	Method for Solid Oxide Fuel Cell Fabrication
US	14/477,035	9/4/2014			Method for Solid Oxide Fuel Cell Fabrication
PCT	PCT/US11/47976	8/16/2011			Method for Solid Oxide Fuel Cell Fabrication
US	12/659,742	3/19/2010	8,663,869	3/4/2014	CRACK FREE SOFC ELECTROLYTE
PCT	PCT/US2010/027899	3/19/2010			CRACK FREE SOFC ELECTROLYTE
US	12/659,899	3/24/2010	8,802,308	8/12/2014	FUEL CELL SYSTEM WITH INTERRUPTION CONTROL
US	12/759395	4/13/2010			FUEL CELL SYSTEM WITH ELECTROCHEMICAL HYDROGEN PUMP AND METHOD OF OPERATING SAME

16

Geography	Serial No.	Filing Date	Patent Number	Patent Date	Title
US	12/765,732	4/22/2010	7,901,814	3/8/2011	HIGH TEMPERATURE FUEL CELL SYSTEM AND METHOD OF OPERATING SAME
US	13/020,598	2/3/2011			HIGH TEMPERATURE FUEL CELL SYSTEM AND METHOD OF OPERATING SAME
US	12/766,711	4/23/2010	8,182,956	5/22/2012	FUEL CELL STACK WITH INTERNAL FUEL MANIFOLD CONFIGURATION
US	12/765,208	4/22/2010			INTEGRAL STACK COLUMNS
US	12/765213	4/22/2010	8,057,944	11/15/2011	HYBRID REFORMER FOR FUEL FLEXIBILITY
US	61/386,257	9/24/2010			FUEL CELL MECHANICAL COMPONENTS
US	13/242,194	9/23/2011	8,440,362	5/14/2013	FUEL CELL MECHANICAL COMPONENTS
US	13/845,685	3/18/2013	8,822,101	9/2/2014	FUEL CELL MECHANICAL COMPONENTS
US	14/447,944	7/31/2014			FUEL CELL MECHANICAL COMPONENTS
US	11/124,810	5/9/2005	8,691,462	4/8/2014	HIGH TEMPERATURE FUEL CELL SYSTEM WITH INTEGRATED HEAT EXCHANGER NETWORK
US	14/196,342	3/4/2014			HIGH TEMPERATURE FUEL CELL SYSTEM WITH INTEGRATED HEAT EXCHANGER NETWORK
US	61/430,255	1/6/2011			Fuel Cell Hot Box Components
US	13/344,077	1/5/2012	8,563,180	10/22/2013	SOFC Hot Box Components
US	14/054,960	10/16/2013			SOFC Hot Box Components
US	13/344,232	1/5/2012	8,968,943	3/3/2015	SOFC Hot Box Components
US	14/600,450	1/20/2015			SOFC Hot Box Components
US	13/344,304	1/5/2012	8,877,399	11/4/2014	SOFC Hot Box Components
US	14/516,156	10/16/2014			SOFC Hot Box Components
US	13/344,364	1/5/2012	9,190,673	11/17/2015	SOFC Hot Box Components
US	14/938,019	11/11/2015			SOFC Hot Box Components
PCT	PCT/US12/ 20356	1/5/2012			SOFC Hot Box Components
US	61/478,697	4/25/2011			High-yield, low cost refurbishment process for SOFC stack components

17

Geography	Serial No.	Filing Date	Patent Number	Patent Date	Title
US	13/454,536	4/24/2012	8,535,841	9/17/2013	Methods of Refurbishing Components of a Fuel Cell Stack
US	14/019,038	9/5/2013	9,059,455	6/16/2015	Methods of Refurbishing Components of a Fuel Cell Stack
US	61/467,444	3/25/2011			Rapid Thermal Processing for SOFC Manufacturing
US	13/428,653	3/23/2012	9,059,449	6/16/2015	Rapid Thermal Processing for SOFC Manufacturing
PCT	PCT/US12/30320	3/23/2012			Rapid Thermal Processing for SOFC Manufacturing
US	61/406,265	10/25/2010			Fuel Cell Control Device and Method
PCT	PCT/US11/ 57440	10/24/2011			Fuel Cell Control Device and Method
US	61/413,629	11/15/2010			Structure for Fuel Cell System with Grid Independent Operation with DC Micro-Grid Capability
US	13/295,527	11/14/2011	9,106,098	8/11/2015	Structure for Fuel Cell System with Grid Independent Operation with DC Micro-Grid Capability
US	14/790,253	7/2/2015			Fuel Cell System with Grid Independent Operation and DC Microgrid Capability
PCT	PCT/US11/ 60604	11/14/2011			Structure for Fuel Cell System with Grid Independent Operation with DC Micro-Grid Capability
US	61/494,397	6/9/2011			Fuel Cell Bypass Diode Structures and Attachment Methods
US	13/492,351	6/8/2012	8,785,012	7/22/2014	Fuel Cell Bypass Diode Structures and Attachment Methods
US	14/182,511	2/18/2014	8,802,250	8/12/2014	Fuel Cell Bypass Diode Structures and Attachment Methods
PCT	PCT/US12/ 41594	6/8/2012			Fuel Cell Bypass Diode Structures and Attachment Methods
US	61/418,088	11/30/2010			Reduction of Chromium Oxide in a Hydrogen Containing Atmosphere to Produce Chromium Powder for Powder Metallurgy Applications with Improved Properties

18

Geography	Serial No.	Filing Date	Patent Number	Patent Date	Title
US	61/504,478	7/5/2011			Iron Coated Chromium Powder and SOFC IC Made Therefrom
US	13/301,151	11/21/2011	8,840,833	9/23/2014	Iron Coated Chromium Powder and SOFC IC Made Therefrom
US	14/483,858	9/11/2014			Iron Coated Chromium Powder and SOFC IC Made Therefrom
US	61/418,043	11/30/2010			High Resolution Density Measurement for Powdered Metals
US	13/306,511	11/28/2011	8,802,331	8/12/2014	Non-Destructive Testing Methods for Fuel Cell Interconnect Manufacturing
PCT	PCT/US11/ 62328	11/29/2011			Non-Destructive Testing Methods for Fuel Cell Interconnect Manufacturing
US	13/282,899	10/27/2011	9,190,685	11/17/2015	SOFC System with Selective CO2 and Water Removal
US	14/886,991	10/19/2015			SOFC System with Selective CO2 and Water Removal
US	13/626,560	9/25/2012	9,141,923	9/22/2015	Fuel Cell Fleet Optimization
WO	PCT/US13/61230	9/23/2013			Fuel Cell Fleet Optimization
US	61/496,143	6/13/2011			Fuel Cell Stack Compression Devices and Methods
US	61/560,893	11/17/2011			Multi-Layered Coating Providing Corrosion Resistance to Zirconia Based Electrolytes
US	13/677,836	11/15/2012	8,852,825	10/7/2014	Multi-Layered Coating Providing Corrosion Resistance to Zirconia Based Electrolytes
US	14/476,963	9/4/2014			Multi-Layered Coating Providing Corrosion Resistance to Zirconia Based Electrolytes
WO	PCT/US12/65213	10/15/2012			Multi-Layered Coating Providing Corrosion Resistance to Zirconia Based Electrolytes
US	61/539,045	9/26/2011			Electrolyte Supported Cell Designed for Longer Life and Higher Power

19

Geography	Serial No.	Filing Date	Patent Number	Patent Date	Title
US	13/409,629	3/1/2012			Coatings for Metallic Interconnects to Reduce SOFC Degradation
US	14/870,579	9/30/2015			Coatings for Metallic Interconnects to Reduce SOFC Degradation
WO	PCT/US13/27895	2/27/2013			Coatings for Metallic Interconnects to Reduce SOFC Degradation
US	61/501,599	6/27/2011			Convergent Energized IT Apparatus for Commercial Use
US	13/533,070	6/26/2012			Convergent Energized IT Apparatus for Commercial Use
US	61/501,610	6/27/2011			Convergent Energized IT Apparatus for Residential Use
US	13/533,456	6/26/2012	9,059,600	6/16/2015	Convergent Energized IT Apparatus for Residential Use
US	13/533,755	6/26/2012	9,019,700	4/28/2015	Method of Operating an Energy Center
US	61/501,367	6/27/2011			Fuel Cell Power Generation System With Multiple DC Outputs
US	13/533,331	6/26/2012			Fuel Cell Power Generation System with Isolated and Non-Isolated Buses
US	61/501,607	6/27/2011			Energy Center
US	13/533,731	6/26/2012	9,089,077	7/21/2015	Energy Center
US	61/501,382	6/27/2011			B-Side Feed for Critical Power Applications
US	13/533,496	6/26/2012			B-Side Feed for Critical Power Applications
US	14/955,584	12/1/2015			B-Side Feed for Critical Power Applications
PCT	PCT/US12/ 44214	6/26/2012			B-Side Feed for Critical Power Applications
US	61/501,604	6/27/2011			DC Micro-Grid
US	13/533,593	6/26/2012	8,970,176	3/3/2015	DC Micro-Grid
US	14/600,571	1/20/2015			DC Micro-Grid
US	61/501,613	6/27/2011			Electric Vehicle Charging Using Fuel Cell System
US	13/533,216	6/26/2012			Electric Vehicle Charging Using Fuel Cell System
PCT	PCT/US12/ 44195	6/26/2012			Electric Vehicle Charging Using Fuel Cell System
US	61/511,305	7/25/2011			A Measurement Device for Measuring Voltages Along a Linear Array of Voltage Sources

20

Geography	Serial No.	Filing Date	Patent Number	Patent Date	Title
US	13/556,794	7/24/2012	8,993,191	3/31/2015	A Measurement Device for Measuring Voltages Along a Linear Array of Voltage Sources
US	14/627,290	2/20/2015			Measurement Device for Measuring Voltages Along a Linear Array of Voltage Sources
US	61/714,928	10/17/2012			Interconnect For Fuel Cell Stack
US	61/673,548	7/19/2012			Thermal Processing of Interconnects
US	61/600,171	2/17/2012			Methods and Systems for Fuel Cell Stack Sintering and Conditioning
US	13/768,307	2/15/2013	9,065,127	6/23/2015	Methods and Systems for Fuel Cell Stack Sintering and Conditioning
US	14/715,890	5/19/2015			Methods and Systems for Fuel Cell Stack Sintering and Conditioning
WO	PCT/US13/26328	2/15/2013			Methods and Systems for Fuel Cell Stack Sintering and Conditioning
US	61/623,841	4/13/2012			Flaw Detection Method and Apparatus For Fuel Cell Components
US	61/749,984	1/8/2013			Flaw Detection Method and Apparatus For Fuel Cell Components
US	13/859,829	4/10/2013			Flaw Detection Method and Apparatus For Fuel Cell Components
US	13/859,892	4/10/2013	9,164,064	10/20/2015	Flaw Detection Method and Apparatus For Fuel Cell Components
WO	PCT/US13/35895	4/10/2013			Flaw Detection Method and Apparatus For Fuel Cell Components
US	61/535,121	9/15/2011			Crack Detection in Ceramics Using Electrical Conductors
US	13/531,631	6/25/2012	9,176,085	11/3/2015	Crack Detection in Ceramics Using Electrical Conductors
US	14/873,686	10/2/2015			Crack Detection in Ceramics Using Electrical Conductors

21

Geography	Serial No.	Filing Date	Patent Number	Patent Date	Title
US	61/600,102	2/17/2012			Solid Oxide Fuel Cell Stack Heat Treatment Methods and Apparatus
US	13/768,218	2/15/2013	9,142,845	9/22/2015	Solid Oxide Fuel Cell Stack Heat Treatment Methods and Apparatus
WO	PCT/US13/26387	2/15/2013			Solid Oxide Fuel Cell Stack Heat Treatment Methods and Apparatus
US	61/561,344	11/18/2011			Fuel Cell Interconnects and Methods of Fabrication
US	13/678,709	11/16/2012	8,962,219	2/24/2015	Fuel Cell Interconnects and Methods of Fabrication
US	13/678,981	11/16/2012	9,196,909	11/24/2015	Fuel Cell Interconnect Heat Treatment Method
US	14/886,893	10/19/2015			Fuel Cell Interconnect
WO	PCT/US12/65508	11/16/2012			Fuel Cell Interconnects and Methods of Fabrication
US	61/605,309	3/1/2012			Coatings for SOFC Metallic Interconnects
US	61/702,397	9/18/2012			Coatings for SOFC Metallic Interconnects
US	13/781,206	2/28/2013			Coatings for SOFC Metallic Interconnects
US	61/714,302	10/16/2012			Energy Load Management System
US	14/054,010	10/15/2013			Energy Load Management System
WO	PCT/US13/65012	10/15/2013			Energy Load Management System
US	13/606,765	9/7/2012	8,916,300	12/23/2014	Ammonia Fueled SOFC System

22

Geography	Serial No.	Filing Date	Patent Number	Patent Date	Title
US	13/603,581	9/5/2012			Ammonia or Hydrazine Injection into Fuel Cell Systems
US	61/600,132	2/17/2012			Continuous Furnace for Efficient Air and Energy Use
US	61/728,290	11/20/2012			Fuel Cell System Hot Box Insulation
US	14/082,651	11/18/2013			Fuel Cell System Hot Box Insulation
WO	PCT/US13/70505	11/18/2013			Fuel Cell System Hot Box Insulation
US	61/703,832	9/21/2012			Systems and Methods for Bypassing Fuel Cells
US	14/029,178	9/17/2013			Systems and Methods for Bypassing Fuel Cells
WO	PCT/US13/60145	9/17/2013			Systems and Methods for Bypassing Fuel Cells
US	61/730,595	11/28/2012			Hermetic High Temperature Dielectric Conduit Assemblies
US	14/090,104	11/26/2013	8,921,001	12/30/2014	Hermetic High Temperature Dielectric Conduit Assemblies
WO	PCT/US13/71823	11/26/2013			Hermetic High Temperature Dielectric Conduit Assemblies
US	61/691,360	8/21/2012			Systems and Methods for Suppressing Chromium Poisoning in Fuel Cells
US	61/788,661	3/15/2013			Systems and Methods for Suppressing Chromium Poisoning in Fuel Cells
US	13/971,064	8/20/2013			Systems and Methods for Suppressing Chromium Poisoning in Fuel Cells
WO	PCT/US13/55765	8/20/2013			Systems and Methods for Suppressing Chromium Poisoning in Fuel Cells
US	61/613,851	3/21/2012			Fuel Cell Power for Data Center Uses
US	61/789,343	3/15/2013			Fuel Cell Power for Data Center Uses
US	13/845,942	3/18/2013			Fuel Cell Power for Data Center Uses

23

Geography	Serial No.	Filing Date	Patent Number	Patent Date	Title
WO	PCT/US13/33080	3/20/2013			Fuel Cell Power for Data Center Uses
US	61/750,867	1/10/2013			Methods of Recovering Scandium from Titanium Residue Streams
US	14/151,177	1/9/2014	9,102,999	8/11/2015	Methods of Recovering Scandium from Titanium Residue Streams
WO	PCT/US14/10803	1/9/2014			Methods of Recovering Scandium from Titanium Residue Streams
US	61/700,135	9/12/2012			Oxidation Process for Interconnects and End Plates
US	61/700,194	9/12/2012			Oxidation Process for Interconnects and End Plates Using Nitrous Oxide
US	61/669,494	7/9/2012			Fuel Cell Power for Site Specific Applications
US	61/669,494	7/9/2012			Fuel Cell System With Variable Frequency Drive For Support Equipment
US	61/694,337	8/29/2012			Interconnect for Fuel Cell Stack
US	14/011,804	8/28/2013			Interconnect for Fuel Cell Stack
WO	PCT/US13/56949	8/28/2013			Interconnect for Fuel Cell Stack
US	61/728,270	11/20/2012			Doped Scandia Stabilized Zirconia Electrolyte Compositions
US	61/792,699	3/15/2013			Doped Scandia Stabilized Zirconia Electrolyte Compositions
US	14/083,708	11/19/2013			Doped Scandia Stabilized Zirconia Electrolyte Compositions
WO	PCT/US13/70783	11/19/2013			Doped Scandia Stabilized Zirconia Electrolyte Compositions
US	61/679,201	8/3/2012			Powdered Metal Preparation and Compaction for Low Permeability Interconnects
US	13/679,092	11/16/2012			Powdered Metal Preparation and Compaction for Low Permeability Interconnects

24

Geography	Serial No.	Filing Date	Patent Number	Patent Date	Title
US	14/687,365	4/15/2015			Method of Making Fuel Cell Interconnect Using Powder Metallurgy
WO	PCT/US12/65531	11/16/2012			Powdered Metal Preparation and Compaction for Low Permeability Interconnects
US	61/702,375	9/18/2012			Air Dryer for a SOFC System
US	61/787,111	3/15/2013			Abrasion Resistant Solid Oxide Fuel Cell Electrode Ink
US	14/201,149	3/7/2014			Abrasion Resistant Solid Oxide Fuel Cell Electrode Ink
WO	PCT/US14/21676	3/7/2014			Abrasion Resistant Solid Oxide Fuel Cell Electrode Ink
US	13/890,555	5/9/2013	8,968,509	3/3/2015	Methods and Devices for Printing Seals for Fuel Cell Stacks
US	61/723,992	11/8/2012			Fuel Cell Interconnects and Methods of Fabrication
US	61/723,066	11/6/2012			Interconnect Design to Improve Stack Yield by Mitigating Cell Stresses Caused by Stack to Stack Interface Seals in Stack Manufacturing and Hotbox Assembly
US	14/072,375	11/5/2013			Improved Interconnect and End Plate Design for Fuel Cell Stack
US	14/072,499	11/5/2013			Improved Interconnect and End Plate Design for Fuel Cell Stack
US	14/072,381	11/5/2013			Improved Interconnect and End Plate Design for Fuel Cell Stack
WO	PCT/US13/68405	11/5/2013			Improved Interconnect and End Plate Design for Fuel Cell Stack
US	61/894,485	10/23/2013			Pre-Reformer For Selective Reformation of Higher Hydrocarbons
US	14/519,560	10/21/2014			Pre-Reformer For Selective Reformation of Higher Hydrocarbons

25

Geography	Serial No.	Filing Date	Patent Number	Patent Date	Title
US					Pre-Reformer For Selective Reformation of Higher Hydrocarbons
WO	PCT/US14/61511	10/21/2014			Pre-Reformer For Selective Reformation of Higher Hydrocarbons
US	61/787,310	3/15/2013			Fuel Cell Mechanical Components
US	14/208,190	3/13/2014			Fuel Cell Mechanical Components
US	61/750,179	1/8/2013			Serialization of Fuel Cell Components
US	14/149,187	1/7/2014			Serialization of Fuel Cell Components
US	61/750,136	1/8/2013			Optical Measurement Method and Apparatus for Fuel Cell Components
US	14/147,785	1/6/2014			Optical Measurement Method and Apparatus for Fuel Cell Components
US	61/739,989	12/20/2012			End Plates and Interconnects with Different CTE Values for Fuel Cell Stack
US	61/923,886	1/6/2014			Structure and Method for Indication of Fuel Cell Poisons in Fuel Stream and of Bed Breakthrough
US	14/589,403	1/5/2015			Structure and Method for Indicating Undesirable Constituents in a Fuel Cell System
WO	PCT/US15/10137	1/5/2015			Structure and Method for Indication of Fuel Cell Poisons in Fuel Stream and of Bed Breakthrough
US	61/885,048	10/1/2013			Pre-Formed Powder Delivery to Powder Press Machine
US	14/501,572	9/30/2014			Pre-Formed Powder Delivery to Powder Press Machine
WO	PCT/US14/58251	9/30/2014			Pre-Formed Powder Delivery to Powder Press Machine
US	61/912,931	12/6/2013			Method of Measurement and Estimation of the Coefficient of Thermal Expansion in Components
US	14/559,214	12/3/2014			Method of Measurement and Estimation of the Coefficient of Thermal Expansion in Components

26

Geography	Serial No.	Filing Date	Patent Number	Patent Date	Title
US	61/938,827	2/12/2014			Structure and Method for Fuel Cell System Where Multiple Fuel Cells and Power Electronics Feed Loads in Parallel Allowing for Integrated Electrochemical Impedance Spectroscopy (“EIS”)
US	14/619,779	2/11/2015			Structure and Method for Fuel Cell System Where Multiple Fuel Cells and Power Electronics Feed Loads in Parallel Allowing for Integrated Electrochemical Impedance Spectroscopy (“EIS”)
WO	PCT/US15/15425	2/11/2015			Structure and Method for Fuel Cell System Where Multiple Fuel Cells and Power Electronics Feed Loads in Parallel Allowing for Integrated Electrochemical Impedance Spectroscopy (“EIS”)
US	14/246,716	4/7/2014			Parallel Control of Multiple Uninterruptable Power Modules (“UPMs”)
US	61/824,025	5/16/2013			Corrosion Resistant Barrier Layer for a Solid Oxide Fuel Cell Stack and Method of Making Thereof
US	14/265,544	4/30/2014			Corrosion Resistant Barrier Layer for a Solid Oxide Fuel Cell Stack and Method of Making Thereof
WO	PCT/US14/35996	4/30/2014			Corrosion Resistant Barrier Layer for a Solid Oxide Fuel Cell Stack and Method of Making Thereof
US	13/905,383	5/30/2013			Measurement Device for Testing a Fuel Cell Stack
US	14/186,642	2/21/2014			Electrochemical Impedance Spectroscopy (“EIS”) Analyzer and Method of Using Thereof
US	62/067,867	10/23/2014			Contact Mesh for Fuel Cell Stacks
US	62/078,596	11/12/2014			SOFC Cathode Compositions with Improved Resistance to SOFC Degradation
US	62/185,261	6/26/2015			SOFC Cathode Compositions with Improved Resistance to SOFC Degradation
US	14/936,250	11/9/2015			SOFC Cathode Compositions with Improved Resistance to SOFC Degradation
WO	PCT/US15/59754	11/9/2015			SOFC Cathode Compositions with Improved Resistance to SOFC Degradation

27

Geography	Serial No.	Filing Date	Patent Number	Patent Date	Title
US	62/022,942	7/10/2014			Methods and Systems for Detecting Defects in a Fuel Cell Stack
US	14/792,923	7/7/2015			Methods and Systems for Detecting Defects in a Fuel Cell Stack
US	61/925,340	1/9/2014			Duplex Coating for SOFC Interconnect
US	14/567,158	12/11/2014			Duplex Coating for SOFC Interconnect
US	62/188,858	7/6/2015			Real Time Monitoring and Automated Intervention Platform for Long Term Operability of Fuel Cells
US	62/133,723	3/9/2015			Methods and Systems for Detecting Defects in a Component of a Fuel Cell Stack
US	61/925,383	1/9/2014			Improved Method of Fabricating an Interconnect for a Fuel Cell Stack
US	14/566,267	12/10/2014			Overvoltage Snubber for Grid Tie Inverter
US	61/909,426	11/27/2013			Fuel Cell Interconnect with Reduced Voltage Degradation over Time
US	14/543,095	11/17/2014			Fuel Cell Interconnect with Reduced Voltage Degradation over Time
WO	PCT/US14/65877	11/17/2014			Fuel Cell Interconnect with Reduced Voltage Degradation over Time
US	62/132,003	3/12/2015			Fuel Cell Interconnects with Nitride Layer and Methods of Making Thereof
US	62/222,348	9/23/2015			Fuel Cell Interconnects with Nitride Layer and Methods of Making Thereof
US	62/109,227	1/29/2015			Fuel Cell Stack Assembly and Method of Operating the Same
US	62/007,645	6/4/2014			Hermetic Seal High Temperature Dielectric with Improved Manufacturability
US	14/725,414	5/29/2015			Hermetic High Temperature Dielectric Conduit Assemblies

28

Geography	Serial No.	Filing Date	Patent Number	Patent Date	Title
WO	PCT/US15/33645	6/2/2015			Hermetic High Temperature Dielectric Conduit Assemblies
US	62/115,714	2/13/2015			Containerized Portable Fuel Cell System and Transportation Method
US	62/128,910	3/5/2015			Knock Sensor and Passive Pressure Relief Components for Detecting and Correcting Fuel Cell System Operational Conditions
US	62/111,875	2/4/2015			Carbon Dioxide Separator, Fuel Cell System Including Same, and Method of Operating the Fuel Cell System
US	62/241,261	10/14/2015			Leak Detection Method for Solid Oxide Fuel Cells Using Hydrogen or Other Detectable Gases
US	61/944,381	2/25/2014			Composition and Processing of Metallic Interconnects for SOFC
US	14/629,807	2/24/2015			Composition and Processing of Metallic Interconnects for SOFC Stacks
WO	PCT/US15/17226	2/24/2015			Composition and Processing of Metallic Interconnects for SOFC Stacks
US	61/971,700	3/28/2014			Packaging Design and Method of Packing/Unpacking Fuel Cell Components in a Recyclable Package Safe for Shipping, Transport, and Automation
US	14/671,156	3/27/2015			Fuel Cell Package and Method of Packing and Unpacking Fuel Cell Components
WO	PCT/US15/23013	3/27/2015			Fuel Cell Package and Method of Packing and Unpacking Fuel Cell Components
US	62/153,271	4/27/2015			Carbon Dioxide Separator Membrane Structure, Method of Manufacturing Same, and Carbon Dioxide Separator Including Same
US	61/975,233	4/4/2014			Fuel Cell System Glow Plug Assembly Seal
US	14/666,495	3/24/2015			Fuel Cell System Glow Plug and Method of Forming Same
WO	PCT/US15/22122	3/24/2015			Fuel Cell System Glow Plug and Method of Forming Same
US	61/975,233	4/24/2014			Anode Contact Ink for Improved SOFC Stack Life

29

Geography	Serial No.	Filing Date	Patent Number	Patent Date	Title
US	14/689,243	4/17/2015			Fuel Cell Interconnect with Reduced Voltage Degradation Over Time
US	62/215,285	9/8/2015			Fuel Cell Ventilation System
US	62/137,433	3/24/2015			Perimeter Electrolyte Reinforcement Layer Composition for Solid Oxide Fuel Cell Electrolytes
US	62/091,821	12/15/2014			High Temperature Air Purge of Solid Oxide Fuel Cell Anode Electrodes
US	62/050,424	9/15/2014			Air Cooled Fuel Cell System
US	14/850,044	9/10/2015			Air Cooled Fuel Cell System
US	13/062,643	5/12/2011			Recuperative Heat Exchanger, Fuel Cell System Including Recuperative Heat Exchanger, And Method Of Operating Same
US	62/086,938	12/3/2014			Inspection Method for the Effect of Composition on the Bond Strength of a Metallized Alumina Ceramic
US	14/872,365	10/1/2015			Inspection Method for the Effect of Composition on the Bond Strength of a Metallized Alumina Ceramic
US	12/689,726	1/19/2010	8,026,013	9/27/2011	Annular or Ring Shaped Fuel Cell Unit
US	62/129,509	3/6/2015			Modular Pad for a Fuel Cell System
US	62/238,351	10/7/2015			Fuel Cell Stack Column Including Stress-Relief Components
US	62/171,145	6/4/2015			Methods of Battery Integration
US	14/853,030	9/14/2015			Electrochemical Impedance Spectroscopy (“EIS”) Analyzer and Method of Using Thereof
US	62/237,711	10/6/2015			Sorbent Bed Assembly and Fuel Cell System Including Same

30

EXHIBIT C

List of Trademarks

U.S. Federal Trademark Registrations and Applications

Grantor	Trademark	Application No.	Application Date	Registration No.	Registration Date
Bloom Energy Corporation	BE	77388058	2/4/08	4272466	1/8/13
Bloom Energy Corporation	BLOOM BOX	86379783	8/28/14
Bloom Energy Corporation	BLOOM ELECTRONS	85266176	3/14/11	4246657	11/20/12
Bloom Energy Corporation	BLOOM ENERGY	77005327	9/22/06	3673390	8/25/09
Bloom Energy Corporation	BLOOM ENERGY	77950803	3/4/10	4122292	4/3/12
Bloom Energy Corporation	BLOOM ENERGY MY ENERGY	85546532	2/17/12
Bloom Energy Corporation	BLOOMCONNECT	86215135	3/7/14
Bloom Energy Corporation	BLOOMENERGY	77005348	9/22/06	3362904	1/1/08
Bloom Energy Corporation	ENERGY SERVER	78905859	6/12/06	3677943	9/1/09
Bloom Energy Corporation	GRID TO GO	78825024	2/28/06	3532547	11/11/08
Bloom Energy Corporation	ION AMERICA	86017104	7/23/13
Bloom Energy Corporation	POWDER TO POWER	77298195	10/08/07	3620161	5/12/09
Bloom Energy Corporation	THE BLOOM ENERGY FOUNDATION	85546526	2/17/12
Bloom Energy Corporation	THE BLOOM FOUNDATION	85546516	2/17/12

U.S. State Trademark Registrations

None

EXHIBIT D

Form of Notice of Security Interest in Trademarks and Patents

NOTICE OF SECURITY INTEREST IN TRADEMARKS AND PATENTS

This NOTICE OF SECURITY INTEREST IN TRADEMARKS AND PATENTS, effective as of [            ], 20[    ] (“Notice”) is made by [            ], a [        ] Corporation (the “Grantor”), in favor of U.S. Bank National Association, not in its individual capacity but solely as Collateral Agent (the “Collateral Agent”) for its own benefit and the benefit of the other Secured Parties (as defined in the Security Agreement referred to below), in consideration of the mutual covenants contained herein and benefits to be derived herefrom.

W I T N E S S E T H:

WHEREAS, Grantor is a party to a Security Agreement, dated as of December 15, 2015, by and among Bloom Energy Corporation, the Guarantors from time to time party thereto and U.S. Bank National Association for the benefit of the Collateral Agent and the Secured Parties (as amended, modified, supplemented or restated and in effect from time to time, the “Security Agreement”);

WHEREAS, pursuant to the Security Agreement, Grantor has executed and delivered this Notice for the purpose of recording and confirming the grant of the security interest of the Collateral Agent in the Trademark Collateral and Patent Collateral (each as defined below) with the United States Patent and Trademark Office;

NOW, THEREFORE, in consideration of the mutual conditions and agreements set forth herein and in the Security Agreement, and for good and valuable consideration, the receipt of which is hereby acknowledged, the Grantor and the Collateral Agent, on its own behalf and on behalf of the other Secured Parties (and each of their respective successors or assigns), hereby agree as follows:

SECTION 1 Defined Terms. Unless otherwise defined herein, terms defined in the Security Agreement and used herein have the meaning given to them in the Security Agreement.

SECTION 2 Grant of Security Interest. In furtherance and as confirmation of the Security Interest granted by the Grantor to the Collateral Agent (for its own benefit and the benefit of the other Secured Parties) under the Security Agreement, and as further security for the payment or performance, as the case may be, in full of the Secured Obligations, the Grantor hereby ratifies such Security Interest and grants to the Collateral Agent (for its own benefit and the benefit of the other Secured Parties) a continuing security interest, in all of the present and future right, title and interest of the Grantor in, to and under the following property, and each item thereof, whether now owned or existing or hereafter acquired or arising, together with all products, proceeds, substitutions, and accessions of or to any of the following property (collectively, the “Trademark and Patent Collateral”):

(a) All Trademarks, including, without limitation, the trademark registrations and trademark applications set forth on Exhibit A attached hereto (collectively, “Trademarks”);

(b) All Patents, including, without limitation, the patents and patent applications set forth on Exhibit B attached hereto (collectively, “Patents”);

(c) All Patent Licenses and Trademark Licenses (collectively, “Licenses”) and all income, royalties, damages and payments now and hereafter due and/or payable under and with

respect to the Trademarks and Patents, including, without limitation, payments under all Licenses entered into in connection therewith and damages and payments for past or future infringements, misappropriations or dilutions thereof;

(d) The right to sue for past, present and future infringements, misappropriations and dilutions of any of the Trademarks and Patents; and

(e) All of the Grantor’s rights corresponding to any of the foregoing throughout the world.

Notwithstanding the foregoing, (i) no Trademark shall be included in the Trademark and Patent Collateral to the extent that the grant of a security interest in such Trademark would result in, permit or provide grounds for the cancellation or invalidation of such Trademark and (ii) in no event shall the Trademark and Patent Collateral include any Excluded Assets.

SECTION 3 Intent. This Notice is being executed and delivered by the Grantor for the purpose of recording and confirming the grant of the security interest of the Collateral Agent in the Trademark and Patent Collateral with the United States Patent and Trademark Office. It is intended that the security interest granted pursuant to this Notice is granted in conjunction with, and not in addition to or limitation of, the Security Interest granted to the Collateral Agent, for its own benefit and the benefit of the other Secured Parties, under the Security Agreement. All provisions of the Security Agreement shall apply to the Trademark and Patent Collateral, and such provisions are hereby incorporated herein by reference. The Collateral Agent shall have the same rights, remedies, powers, privileges and discretions with respect to the security interests created in the Trademark and Patent Collateral as in all other Collateral. In the event of a conflict between this Notice and the Security Agreement, the terms of the Security Agreement shall control.

SECTION 4. Recordation. The Grantor authorizes and requests that the Commissioner for Patents and the Commissioner for Trademarks and any other applicable government officer record this Notice.

SECTION 5. Governing Law. THIS NOTICE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.

SECTION 6. Termination; Release of Trademark and Patent Collateral. Upon termination of the Security Interest in the Trademark and Patent Collateral in accordance with the Security Agreement, the Collateral Agent shall execute, acknowledge, and deliver to the Grantor, an instrument in writing in recordable form releasing the collateral pledge, grant, lien and security interest in the Trademark and Patent Collateral under this Notice. Any execution and delivery of termination statements, releases or other documents pursuant to this Section 5 shall be without recourse to, or warranty by, the Collateral Agent or any other Secured Party.

SECTION 7. Concerning the Collateral Agent. It is expressly understood and agreed that U.S. Bank National Association is executing this Notice solely in its capacity as Collateral Agent as appointed pursuant to the Indenture, and shall be entitled to all of the rights, privileges, immunities and protections under the Indenture as if such rights, privileges, immunities and protections were set forth herein.

[SIGNATURE PAGE FOLLOWS]

IN WITNESS WHEREOF, the Grantors and the Collateral Agent have caused this Notice to be executed by their duly authorized officers as of the date first above written.

GRANTOR[S]:	[                                         ]
	By:
		Name:
		Title:

COLLATERAL AGENT:	U.S. BANK NATIONAL ASSOCIATION, not in its individual capacity but solely as Collateral Agent
	By:
		Name:
		Title:

EXHIBIT A

Trademark Registrations and Applications

U.S. Federal Trademark Registrations and Applications

Trademark Status App/Reg. No. App/Reg. Date

EXHIBIT B

Patents and Patent Applications

Patent App/Reg. No. App/Reg. Date

EXHIBIT E

Form of Notice of Security Interest in Copyrights

NOTICE OF SECURITY INTEREST IN COPYRIGHTS

This NOTICE OF SECURITY INTEREST IN COPYRIGHTS, effective as of [            ], 20[    ] (“Notice”) is made by [            ], a [        ] Corporation (the “Grantor”), in favor of U.S. Bank National Association, not in its individual capacity but solely as Collateral Agent (the “Collateral Agent”) for its own benefit and the benefit of the other Secured Parties (as defined in the Security Agreement referred to below), in consideration of the mutual covenants contained herein and benefits to be derived herefrom.

W I T N E S S E T H:

WHEREAS, Grantor is a party to a Security Agreement, dated as of December 15, 2015, by and among Bloom Energy Corporation, the Guarantors and U.S. Bank National Association for the benefit of the Collateral Agent and the Secured Parties (as amended, modified, supplemented or restated and in effect from time to time, the “Security Agreement”);

WHEREAS, pursuant to the Security Agreement, the Grantor has executed and delivered this Notice for the purpose of recording and confirming the grant of the security interest of the Collateral Agent in the Copyright Collateral (as defined below) with the United States Copyright Office;

NOW, THEREFORE, in consideration of the mutual conditions and agreements set forth herein and in the Security Agreement, and for good and valuable consideration, the receipt of which is hereby acknowledged, the Grantor and the Collateral Agent, on its own behalf and on behalf of the other Secured Parties (and each of their respective successors or assigns), hereby agree as follows:

SECTION 1. Defined Terms. Unless otherwise defined herein, terms defined in the Security Agreement and used herein have the meaning given to them in the Security Agreement.

SECTION 2. Grant of Security Interest. In furtherance and as confirmation of the Security Interest granted by the Grantor to the Collateral Agent (for its own benefit and the benefit of the other Secured Parties) under the Security Agreement, and as further security for the payment or performance, as the case may be, in full of the Secured Obligations, the Grantor hereby ratifies such Security Interest and grants to the Collateral Agent (for its own benefit and the benefit of the other Secured Parties) a continuing security interest, in all of the present and future right, title and interest of such Grantor in, to and under the following property, and each item thereof, whether now owned or existing or hereafter acquired or arising, together with all products, proceeds, substitutions, and accessions of or to any of the following property (collectively, the “Copyright Collateral”):

(a) All Copyrights, including without limitation the registrations and applications set forth on Exhibit A attached hereto, and all renewals thereof (collectively, “Copyrights”);

(b) All Copyright Licenses (collectively, “Licenses”) and all income, royalties, damages and payments now and hereafter due and/or payable under and with respect to the Copyrights, including, without limitation, payments under all Licenses entered into in connection therewith and damages and payments for past or future infringements thereof;

(c) The right to sue for past, present and future infringements of any of the Copyrights; and

(d) All of the Grantor’s rights corresponding to any of the foregoing throughout the world.

Notwithstanding the foregoing, in no event shall the Copyright Collateral include any Excluded Assets.

SECTION 3. Intent. This Notice is being executed and delivered by the Grantors for the purpose of recording and confirming the grant of the security interest of the Collateral Agent in the Copyright Collateral with the United States Copyright Office. It is intended that the security interest granted pursuant to this Notice is granted in conjunction with, and not in addition to or limitation of, the Security Interest granted to the Collateral Agent, for its own benefit and the benefit of the other Secured Parties, under the Security Agreement. All provisions of the Security Agreement shall apply to the Copyright Collateral, and such provisions are hereby incorporated herein by reference. The Collateral Agent shall have the same rights, remedies, powers, privileges and discretions with respect to the security interests created in the Copyright Collateral as in all other Collateral. In the event of a conflict between this Notice and the Security Agreement, the terms of the Security Agreement shall control.

SECTION 4. Recordation. The Grantor authorizes and requests that the Register of Copyrights and any other applicable government officer record this Notice.

SECTION 5. Governing Law. THIS NOTICE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.

SECTION 6. Termination; Release of Copyright Collateral. Upon termination of the Security Interest in the Copyright Collateral in accordance with the Security Agreement, the Collateral Agent shall execute, acknowledge, and deliver to the Grantor, an instrument in writing in recordable form releasing the collateral pledge, grant, lien and security interest in the Copyright Collateral under this Notice. Any execution and delivery of termination statements, releases or other documents pursuant to this Section 5 shall be without recourse to, or warranty by, the Collateral Agent or any other Secured Party.

SECTION 7. Concerning the Collateral Agent. It is expressly understood and agreed that U.S. Bank National Association is executing this Notice solely in its capacity as Collateral Agent as appointed pursuant to the Indenture, and shall be entitled to all of the rights, privileges, immunities and protections under the Indenture as if such rights, privileges, immunities and protections were set forth herein.

[SIGNATURE PAGE FOLLOWS]

IN WITNESS WHEREOF, the Grantor and the Collateral Agent have caused this Notice to be executed by their duly authorized officers as of the date first above written.

GRANTOR[S]:	[                                         ]
		By:
		Name:
		Title:

COLLATERAL AGENT:	U.S. BANK NATIONAL ASSOCIATION, not in its individual capacity but solely as Collateral Agent
		By:
			Name:
			Title:

Exhibit A

List of Copyrights

United States Copyright Registrations and Applications

Copyright Status App/Reg. No. App/Reg. Date

EXHIBIT G

ADDITIONAL GRANTOR JOINDER AGREEMENT

This JOINDER AGREEMENT, dated as of             ,         , is delivered pursuant to (a) Section 8.15 of the Security Agreement, dated as of December 15, 2015 (as amended, restated, supplemented or otherwise modified from time to time, the “Security Agreement”), among Bloom Energy Corporation, a Delaware corporation (the “Company”), the Guarantors from time to time party thereto (the “Guarantors” and together the Company, each a “Grantor” and collectively, the “Grantors”) and U.S. Bank National Association, in its capacity as Collateral Agent pursuant to the Indenture (as hereinafter defined) (in such capacity and together with any successors in such capacity, the “Collateral Agent”). Capitalized terms used herein but not defined herein are used herein with the meaning given them in the Security Agreement.

By executing and delivering this Joinder Agreement, the undersigned hereby becomes a party to and Grantor under the Security Agreement with the same force and effect as if originally named as a Grantor therein and, without limiting the generality of the foregoing, as security for the full, prompt, complete and final payment when due (whether at stated maturity, by acceleration or otherwise) and prompt performance and observance of all the Secured Obligations, the undersigned hereby grants to the Collateral Agent, for itself and for the benefit of the Secured Parties, a security interest in and to all of the undersigned’s right, title and interest in, to and under the Collateral, whether now owned or hereafter acquired by the undersigned or in which the undersigned now holds or hereafter acquires any interest and expressly assumes all obligations and liabilities of a Grantor thereunder. From and after the date hereof, the undersigned shall for all purposes be a party to the Security Agreement and shall have the same rights, benefits and obligations as a Grantor party thereto.

The information set forth in Annex I is hereby added to the information set forth in Schedules I, II, III and IV and Exhibits A, B, and C to the Security Agreement.

The undersigned hereby represents and warrants that each of the representations and warranties contained in the Security Agreement, made with respect to the undersigned and giving effect to this Joinder Agreement, is true and correct in all material respects on and as the date hereof as if made on and as of such date, except to the extent that such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date; provided that, if a representation and warranty is qualified as to materiality, the materiality qualifier shall be disregarded with respect to such representation and warranty.

This Joinder Agreement shall be governed by, construed and enforced in accordance with, the internal law of the State of New York without reference to conflicts of law rules other than Section 5-1401 of the General Obligations Law of the State of New York except that matters concerning the validity and perfection of a security interest shall be governed by the conflict of law rules set forth in the UCC. The undersigned hereby consents to the application of New York civil law to the construction, interpretation and enforcement of this Joinder Agreement, and to the application of New York civil law to the procedural aspects of any suit, action or proceeding relating thereto, including, but not limited to, legal process, execution of judgments and other legal remedies.

This Joinder Agreement may be executed in any number of counterparts, any set of which signed by all the parties hereto shall be deemed to constitute a complete, executed original for all purposes. Transmission by facsimile, “PDF” or similar electronic format of an executed counterpart of this Joinder Agreement shall be deemed to constitute due and sufficient delivery of such counterpart.

[This Space Intentionally Left Blank]

IN WITNESS WHEREOF, the undersigned has caused this Joinder Agreement to be duly executed and delivered as of the date first above written.

[ADDITIONAL GRANTOR]
By:
	Name:
	Title:

ACKNOWLEDGED AND AGREED

as of the date of this Joinder Agreement

first above written.

U.S. BANK NATIONAL ASSOCIATION, not in its individual capacity but solely as Collateral Agent
By:
	Name:
	Title:

ANNEX I

[New Grantor to complete as appropriate]

SCHEDULE I

LEGAL NAME; JURISDICTION OF FORMATION; BOOKS AND RECORDS; LOCATION OF COLLATERAL

Legal Name Jurisdiction of Formation Chief Executive Office; Principal
Place of Business; Location of Books and Records Other Collateral Locations

SCHEDULE II

COMMERCIAL TORT CLAIMS

[Company to provide]

SCHEDULE III

(See Section 3.09 of Security Agreement)

DEPOSIT ACCOUNTS

Name of Grantor Name of Institution Account Number Check here if Deposit
Account is a Collateral
Deposit Account Description of Deposit
Account if not a Collateral Deposit Account

SCHEDULE IV

LIST OF PLEDGED COLLATERAL, SECURITIES AND OTHER INVESTMENT PROPERTY

STOCKS

Name of Grantor Issuer Certificate
Number(s) Number of
Shares Class of Stock Percentage of
Outstanding
Shares

BONDS

Name of Grantor Issuer Number Face Amount Coupon Rate Maturity

GOVERNMENT SECURITIES

Name of Grantor Issuer Number Type Face Amount Coupon Rate Maturity

OTHER SECURITIES OR OTHER INVESTMENT PROPERTY

(CERTIFICATED AND UNCERTIFICATED)

Name of Grantor Issuer Description of Collateral Percentage Ownership
Interest

EX-4

Exhibit 4.7

THE SECURITIES REPRESENTED BY THIS CERTIFICATE OR INSTRUMENT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE “ACT”) AND MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL REGISTERED UNDER THE ACT AND QUALIFIED OR EXEMPTED FROM QUALIFICATION UNDER ALL APPLICABLE BLUE SKY LAWS, OR, IN THE OPINION OF LEGAL COUNSEL SATISFACTORY TO THE ISSUER OF THESE SECURITIES, SUCH OFFER, SALE OR TRANSFER, PLEDGE OR HYPOTHECATION IS IN COMPLIANCE THEREWITH.

THE SECURITIES REPRESENTED BY THIS CERTIFICATE OR INSTRUMENT ARE SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFER AND A RIGHT OF FIRST REFUSAL HELD BY THE ISSUER OR ITS ASSIGNEE(S) AS SET FORTH IN AN AGREEMENT BETWEEN THE ISSUER AND THE ORIGINAL HOLDER OF THESE SHARES, A COPY OF WHICH MAY BE OBTAINED AT THE PRINCIPAL OFFICE OF THE ISSUER. SUCH TRANSFER RESTRICTIONS AND RIGHT OF FIRST REFUSAL ARE BINDING ON TRANSFEREES OF THESE SECURITIES.

THE SECURITIES REPRESENTED BY THIS CERTIFICATE OR INSTRUMENT ARE SUBJECT TO A LOCK-UP PERIOD OF UP TO 180 DAYS FOLLOWING THE EFFECTIVE DATE OF A REGISTRATION STATEMENT OF THE COMPANY FILED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AS SET FORTH IN AN AGREEMENT BETWEEN THE COMPANY AND THE ORIGINAL HOLDER OF THESE SECURITIES, A COPY OF WHICH MAY BE OBTAINED AT THE PRINCIPAL OFFICE OF THE COMPANY. SUCH LOCK-UP PERIOD IS BINDING ON THE TRANSFEREES OF THESE SECURITIES.

THE SHARES REPRESENTED BY THIS CERTIFICATE OR INSTRUMENT ARE SECURITY FOR CERTAIN INDEBTEDNESS OBLIGATIONS OF THE HOLDER PURSUANT TO THE TERMS OF A NOTE AND SECURITY AGREEMENT BETWEEN THE HOLDER AND THE ISSUER. THE SECURITIES REPRESENTED BY THIS INSTRUMENT ARE SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFER PURSUANT TO THE TERMS OF THE AFOREMENTIONED AGREEMENTS. A COPY OF SUCH AGREEMENTS MAY BE OBTAINED FROM THE COMPANY.

THE SECURITIES REPRESENTED BY THIS CERTIFICATE OR INSTRUMENT ARE SECURITY FOR CERTAIN INDEMNIFICATION OBLIGATIONS OF THE HOLDER ON THE TERMS SET FORTH IN AN AGREEMENT BETWEEN THE HOLDER AND THE ISSUER. THE SECURITIES REPRESENTED BY THIS INSTRUMENT ARE SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFER PURSUANT TO THE TERMS OF THE AFOREMENTIONED AGREEMENT. A COPY OF THE AGREEMENT MAY BE OBTAINED FROM THE COMPANY.

THE HOLDER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE OR INSTRUMENT HAS AGREED TO WAIVE ANY RIGHTS TO OBTAIN INFORMATION CONCERNING THE ISSUER, INCLUDING PURSUANT TO SECTION 220 OF THE DELAWARE GENERAL COPORATION LAW. SUCH WAIVER IS BINDING UPON ANY TRANSFEREE OF THESE SECURITIES AND A CONDITION TO TRANSFER OF THESE SECURITIES IS THE TRANSFEREE’S AGREEMENT TO SUCH WAIVER. A COPY OF THE AGREEMENT MAY BE OBTAINED FROM THE COMPANY.

THE SECURITIES REPRESENTED BY THIS INSTRUMENT ARE SUBJECT TO FURTHER RESTRICTIONS ON TRANSFERABILITY AS SET FORTH HEREIN.

BLOOM ENERGY CORPORATION

AGREEMENT AND WARRANT TO PURCHASE COMMON STOCK

Effective Date: June 27, 2014

Void After: June 26, 2019

This Agreement and Warrant to Purchase Common Stock (this “Agreement” or “Warrant”) certifies that, for value received, Keith Daubenspeck (the “Holder”), is entitled, subject to the terms set forth below, to purchase from Bloom Energy Corporation, a Delaware corporation (the “Company”), the Warrant Shares upon surrender of this Warrant, at the principal office of the Company referred to below, with the subscription form attached hereto as Exhibit A (the “Notice of Exercise”) duly executed, and simultaneous payment therefor in lawful money of the United States (or otherwise as hereinafter provided) of the aggregate Exercise Price (as defined below). The Exercise Price and the number of Warrant Shares purchasable hereunder are subject to adjustment as provided herein.

This Warrant has been issued pursuant to that certain Securities Acquisition Agreement, dated as of as of the Effective Date set forth above, by and between the Company, Holder, and certain other parties (the “Confidential Agreement”) and that certain Securities Acquisition Agreement, dated as of the Effective Date, by and between the Company, the Holder, and certain other parties (the “Securities Acquisition Agreement”) and this Warrant is subject to the Transfer Restrictions, the Indemnification Obligations, and the Security Obligations (each as defined in the Securities Acquisition Agreement) and the other terms and conditions found in the Confidential Agreement and the Securities Acquisition Agreement. Capitalized terms not otherwise defined herein shall be given the meaning assigned to such term in the Securities Acquisition Agreement. This Warrant and the Warrant Shares have been pledged as collateral for the payment and performance of certain obligations of the Holder under that certain Security Agreement of even date with the Confidential Agreement (the “Security Agreement”).

1. Number of Shares. This Warrant may be exercised, in whole or in part, for up to 25,000 shares of the Company’s Common Stock (the “Warrant Shares”).

2. Exercise Price. The per share purchase price of the Warrant Shares (the “Exercise Price”) for which this Warrant may be exercised shall be $25.76.

3. Exercise of Warrant.

3.1 Time of Exercise. Subject to the terms and conditions set forth herein, this Warrant shall be exercisable, in whole or in part, at any time or from time to time prior to 5:00 p.m. (Pacific Standard Time) on June 26, 2019 (the “Expiration Date”). Notwithstanding the foregoing, this Warrant shall terminate immediately prior to the consummation of a Liquidation (as defined in the Securities Acquisition Agreement). The Company shall provide the Holder with the same notice of a Liquidation that the Company provides to its stockholders generally.

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3.2 Method of Exercise. The exercise shall only be effected by (a) the surrender of the original copy of this Warrant to the Company at the principal office of the Company as set forth in Section 11.4 (or such other office or agency of the Company as may be designated by notice in writing to the Holder at the address of the Holder appearing on the books of the Company), (b) delivery of a notarized and executed Notice of Exercise and (c) unless payment of the Exercise Price is made pursuant to a “net exercise” as provided under Section 4 below, payment of the Exercise Price in cash or by check acceptable to the Company.

3.3 Effect of Exercise. This Warrant (or the portion thereof exercised) shall be deemed to have been exercised immediately prior to the close of business on the date of its surrender for exercise as provided above, and the person entitled to receive the shares of Warrant Shares issuable upon such exercise shall be treated for all purposes as the holder of record of such shares as of the close of business on such date. Subject to the terms of the Securities Acquisition Agreement, the Company, at its expense, shall, within five (5) business days after exercise, issue and deliver to the person or persons entitled to receive the same a certificate or certificates for the number of shares issuable upon such exercise and, unless this Warrant shall have expired, a new warrant representing the right to acquire the number of shares of Warrant Shares represented by the surrendered Warrant, if any, that shall not have been exercised shall also be delivered to the Holder.

3.4 Duty to Deliver. Subject to the terms of the Securities Acquisition Agreement, each stock certificate issued upon exercise of this Warrant (or issued upon conversion thereof), and issued in connection with adjustments under Section 10 hereof with respect to such shares, shall be immediately delivered to the Company and be held in escrow by the Company pursuant to the provisions of Section 4 of the Securities Acquisition Agreement and pursuant to the provisions of Section 3 of the Security Agreement. Furthermore, any new, additional or different securities that may now or hereafter become distributable with respect to any securities issued upon exercise of this Warrant by reason of any adjustment required by Section 10 of hereof or otherwise shall, upon receipt by the Holder, be promptly delivered to and deposited with the Company unless otherwise deposited immediately into escrow by the Company according to the Securities Acquisition Agreement. The Holder shall provide with respect to each such certificate representing such securities one or more stock powers properly executed in blank in the form attached to the Securities Acquisition Agreement.

3.5 Limitation on Exercise. Notwithstanding any other provision of this Agreement, the Company’s obligation to issue Warrant Shares hereunder is subject to additional limitations set forth in Section 10 of the Confidential Agreement pursuant to which the Warrant Shares, if issued, stand as security for certain indemnity obligations of the initial Holder, and pursuant to which the Company’s obligations to issue Warrant Shares hereunder may be cancelled in satisfaction of such obligations.

4. Net Exercise.

4.1 Net Issue Exercise. In lieu of exercising this Warrant via cash payment, the Holder may elect to receive shares equal to the value of this Warrant (or the portion thereof being canceled) by surrender of this Warrant at the principal office of the Company together with the completed Notice of Exercise indicating the Holder’s election to exercise this Warrant by means of a “net exercise,” in which event the Company shall issue to the Holder a number of shares of Common Stock computed using the following formula:

X = Y (A - B)

             A

Where X = the number of Warrant Shares to be issued to the Holder.

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Y	=	the number of Warrant Shares purchasable under this Warrant or, if only a portion of the Warrant is being exercised, the portion of the Warrant being cancelled (at the date of such calculation).
A	=	the fair market value (as determined below) of one Warrant Share (at the date of such calculation).
B	=	the Exercise Price (as adjusted to the date of such calculation).

If the above calculation results in a negative number, then no shares of Warrant Shares shall be issued or issuable upon conversion of this Warrant.

4.2 Fair Market Value. For purposes of this Section 4, the fair market value of one Warrant Share shall be determined by the Company’s Board of Directors in good faith; provided, however, that where there exists a public market for the Warrant Shares at the time of such exercise, the fair market value per Warrant Share shall be the average of the closing bid and asked prices of the Warrant Shares quoted in the Over-The-Counter Market Summary or the average of the high and low prices as reported by The Nasdaq National Market, the Nasdaq Small Cap Market or on any exchange on which the Warrant Shares is listed, whichever is applicable, for the five (5) trading days prior to the date of the delivery of the Net Exercise Notice.

5. No Fractional Shares or Scrip. No fractional shares or scrip representing fractional shares shall be issued upon the exercise of this Warrant. In lieu of any fractional share to which the Holder would otherwise be entitled, the Company shall make a cash payment equal to the Exercise Price multiplied by such fraction computed to the nearest whole cent.

6. No Rights as Stockholder. The Holder shall not be entitled to vote or receive dividends or be deemed the holder of Warrant Shares or any other securities of the Company that may at any time be issuable on the exercise hereof for any purpose, nor shall anything contained herein be construed to confer upon the Holder, as such, any of the rights of a stockholder of the Company or any right to vote for the election of directors or upon any matter submitted to stockholders at any meeting thereof, or to give or withhold consent to any corporate action or to receive notice of meetings, or to receive dividends or subscription rights or otherwise, until the Warrant shall have been exercised as provided herein.

7. Transfer of Warrant.

7.1 Transferability of Warrant. Holder agrees that this Warrant and the securities issuable upon exercise of this Warrant may not be offered, sold, transferred or disposed of in any other way without the prior written consent of the Company. Notwithstanding the foregoing, this Warrant and the securities issuable upon exercise of this Warrant may be transferred to the heirs of the Holder provided that such heirs assume all of the obligations of the Holder that are set forth in the Settlement Agreements (as defined in the Securities Acquisition Agreement).

7.2 Shares Issued Upon Exercise Subject to Transfer Restrictions. The securities issuable upon exercise of this Warrant shall be subject to the Transfer Restrictions, the Indemnification Obligations, and the Security Obligations, as well as any other limitations set forth in the Securities Acquisition Agreement, and each transferee of this Warrant or the securities issuable upon exercise of this Warrant, shall agree as a condition to any offer, sale, transfer, or disposition that this Warrant and/or any securities issuable upon exercise of this Warrant shall be bound by and subject to the terms of the Transfer Restrictions, the Indemnification Obligations, and the Security Obligations, as well as such other limitations.

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7.3 Transfer Procedures. Subject to the foregoing limitations and requirements, if Holder desires to offer, sell, transfer or dispose of in any other way this Warrant or the securities issuable upon exercise of the Warrant, Holder shall comply with the procedures set forth in Section 3.1(b) of the Securities Acquisition Agreement. Prior to a permitted transfer, the Company shall treat the Holder hereof as the owner and Holder of this Warrant and Company shall not be affected by notice to the contrary.

7.4 Register. The Company will maintain a register (the “Warrant Register”) containing the name and address of the Holder. The Holder of this Warrant may change its address as shown on the Warrant Register by written notice to the Company requesting such change. Any notice or written communication required or permitted to be given to the Holder may be delivered or given by mail to the Holder as shown on the Warrant Register and at the address shown on the Warrant Register.

8. Representations and Warranties of the Holder and Restrictions on Transfer Imposed.

8.1 Representations and Warranties by the Holder. In order to induce the Company to issue this Warrant to the original Holder, the original Holder has made representations and warranties to the Company as set forth in the Securities Acquisition Agreement, which are incorporated herein by reference.

8.2 Legends. The Holder agrees that it will not offer, sell or otherwise dispose of this Warrant or any Warrant Shares to be issued upon exercise hereof except under circumstances which will not result in a violation of the Securities Act or any state securities law. This Warrant and all Warrant Shares issued upon exercise of this Warrant shall be stamped or imprinted with legends in substantially the forms set forth at the top of this Warrant.

9. Lost Documents. Upon receipt by the Company of evidence and indemnity satisfactory to it of the loss, theft, destruction or mutilation of, and upon surrender and cancellation of this Warrant, if mutilated, the Company will make and deliver to the Holder, in lieu of this Warrant, a new Warrant of the same series and of like tenor of this Warrant.

10. Adjustments. The number of shares purchasable hereunder are subject to adjustment from time to time as follows:

10.1 Reorganization, Reclassification. Merger or Conveyance. If any capital reorganization or reclassification or merger or conveyance of the capital stock of the Company shall be effected in such a way that holders of Warrant Shares shall be entitled to receive stock, securities or assets with respect to or in exchange for Warrant Shares, then, as a condition of such reorganization, reclassification, merger or conveyance, lawful and adequate provisions shall be made whereby the Holder of the Warrant shall thereafter have the right to receive upon the basis and upon the terms and conditions specified herein and in lieu of the shares of Warrant Shares immediately theretofore receivable upon the exercise of the Warrant, such shares of stock, securities or assets (including cash) as may be issued or payable with respect to or in exchange for a number of outstanding shares of such Warrant Shares equal to the number of shares of such stock immediately theretofore so receivable, had such reorganization, reclassification, merger or conveyance not taken place, and in any such case appropriate provision shall be made with respect to the rights and interests of such holder to the end that the provisions hereof (including, without limitation, provisions for adjustments of the Exercise Price) shall thereafter be applicable, as nearly as may be, in relation to any shares of stock, securities or assets thereafter deliverable upon the exercise of such exercise rights.

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10.2 Split, Subdivision or Combination of Shares. If the Company at any time while this Warrant, or any portion thereof, remains outstanding and unexpired shall split, subdivide or combine the securities as to which purchase rights under this Warrant exist, into a different number of securities of the same class, the Exercise Price for such securities shall be proportionately decreased in the case of a split or subdivision or proportionately increased in the case of a combination and the number of the securities as to which purchaser rights under this Warrant exist shall be increased or decreased proportionately in accordance with such split subdivision or combination.

10.3 Certificate as to Adjustments. Upon the occurrence of each adjustment or readjustment pursuant to this Section 10, the Company at its expense shall promptly compute such adjustment or readjustment in accordance with the terms hereof and furnish to the Secretary of the Company for filing in the Company’s records and to the Holder a certificate setting forth such adjustment or readjustment and showing in detail the facts upon which such adjustment or readjustment is based. The Company shall, upon the written request, at any time, of the Holder, furnish or cause to be furnished to the Holder a like certificate setting forth: (a) such adjustments and readjustments; (b) the Exercise Price at the time in effect; and (c) the number of shares and the amount, if any, of other property that at the time would be received upon the exercise of the Warrant. No such adjustment or change shall compel immediate exercise of this Warrant or otherwise affect the Expiration Date of this Warrant. Irrespective of any adjustment or other changes made hereunder, this Warrant (or any other warrant issued in exchange therefor) may continue to express the same number and kind of Warrant Shares (except to the extent exercised) and the same Exercise Price as are initially stated herein.

11. General Provisions.

11.1 Governing Law. The validity, interpretation, performance, and enforcement of this Warrant, as well as any other rights, obligations or liabilities otherwise related to the subject matter of this Warrant, shall be governed by and construed under the internal laws of the State of California as applied to agreements among California residents entered into and to be performed entirely within California, without reference to principles of conflict of laws or choice of laws.

11.2 Survival. The representations, warranties, covenants and agreements made herein shall survive the execution of this Agreement and the exercise of this Warrant.

11.3 Successors and Assigns. Except as otherwise expressly provided herein, the provisions hereof shall inure to the benefit of, and be binding upon, the successors, assigns, heirs, executors and administrators of the parties hereto. The Company may assign any of its rights and obligations under this Warrant. Except as set forth in Section 7.1, the Holder may not assign, whether voluntarily or by operation of law, any of its rights and obligations under this Warrant, unless the Company provides prior written consent.

11.4 Notices, etc. Any and all notices required or permitted to be given to a party pursuant to the provisions of this Agreement will be in writing and will be effective and deemed to provide such party sufficient notice under this Agreement on the earliest of the following: (a) at the time of personal delivery, if delivery is in person; (b) 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; or (c) 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 express courier. All notices not delivered personally will be sent with postage and/or other charges prepaid and properly addressed to the party to be notified at the address set forth below the signature lines of this Agreement or at such other address as such other party may designate by one of the indicated means of notice herein to the other party hereto. A “business day” shall be a day, other than Saturday or Sunday, when the banks in the city of San Francisco are open for business.

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11.5 Amendments. This Warrant may be amended and the observance of any term of this Warrant may be waived only with the written consent of the Company and the Holder. No delay or failure to require performance of any provision of this Warrant shall constitute a waiver of that provision as to that or any other instance. No waiver granted under this Warrant 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.

11.6 Arbitration. Any dispute or controversy of any kind between the parties hereto, whether arising out of, relating to or concerning any interpretation, construction, performance or breach of this Agreement, or otherwise, shall be settled by confidential arbitration to be held in Santa Clara, California in accordance with the commercial dispute rules then in effect of the American Arbitration Association. The Arbitrator may grant injunctions or other relief in such dispute or controversy. Judgment may be entered on the Arbitrator’s decision in any court having jurisdiction. The Company and the Holder shall each be responsible for one half of the costs and expenses of such arbitration, and each shall separately pay its counsel fees and expenses; provided, however, in the event of a determination by the Arbitrator which is adverse to the Company or the Holder, as the case may be, the non-prevailing party shall be responsible for all of the costs and expenses of such arbitration, and for all of the counsel fees and expenses of the Company or the Holder relating thereto. For purposes of any action arising out of the application, interpretation or alleged breach of this Agreement, each of the parties hereto waives any statutory or common law principle, and any judicial interpretation of this Agreement, which would create a presumption against any party hereto as a result of such party having drafted any provision of this Agreement. Counsel for the respective parties have reviewed and revised this Agreement, and there shall not be applied any rule construing ambiguities against the drafting party.

11.7 Severability. If any provision of this Warrant 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 Warrant and the remainder shall be enforced as if such invalid, illegal or unenforceable clause or provision had (to the extent not enforceable) never been contained in such agreement.

11.8 Counterparts. This Agreement may be executed in any number of counterparts each of which shall be an original, but all of which together shall constitute one instrument. This Warrant may be executed and delivered by facsimile or other means of electronic delivery and upon such delivery the signature will be deemed to have the same effect as if the original signature had been delivered to the other party.

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IN WITNESS WHEREOF, the Company and the Holder have caused the Warrant to be executed by a duly authorized officer thereof as of the effective date of this Warrant set forth above.

BLOOM ENERGY CORPORATION
By:	/s/ William H. Kurtz
	Name:	William H. Kurtz
	Title:	Chief Financial Officer and Secretary

AGREED AND ACCEPTED:
KEITH DAUBENSPECK
By:	/s/ KEITH DAUBENSPECK
Name:
Title:
Address:

[SIGNATURE PAGE TO COMMON STOCK WARRANT]

EXHIBIT A

NOTICE OF EXERCISE

To: BLOOM ENERGY CORPORATION

We refer to that certain Agreement and Warrant to Purchase Common Stock (the “Warrant”). Capitalized terms not otherwise defined herein shall be given the meaning assigned to such term in the Warrant.

(1) Cash Exercise: The undersigned hereby elects to purchase                  shares of Common Stock (“Warrant Shares”) of Bloom Energy Corporation pursuant to the terms of the Warrant, and tenders herewith payment of the Exercise Price for such shares in full at the price per share provided in the Warrant and the attached signed and Stock Power and Assignment Separate from Stock Certificate.

Net Exercise Election: The undersigned hereby elects to convert the Warrant into shares of Common Stock (“Warrant Shares”) by net exercise election pursuant to the terms of the Warrant and tenders herewith the attached signed and Stock Power and Assignment Separate from Stock Certificate. This conversion is exercised with respect to                              of the Warrant Shares covered by the Warrant.

(2) The undersigned hereby confirms and acknowledges that

a. The representations and warranties set forth in Section 2 of the Securities Acquisition Agreement as they apply to the undersigned Holder continue to be true and complete as of this date with the same effect as when they were made on and as of the Effective Date (as defined in the Securities Acquisition Agreement).

b. The undersigned Holder has performed and complied with, and has not breached any of, the terms, agreements, obligations and conditions of the Settlement Agreements (as defined in the Securities Acquisition Agreement).

c. The undersigned Holder hereby agrees, confirms, and acknowledge that the Warrant Shares being issued to me on the date hereof is subject to the Transfer Restrictions, the Indemnification Obligations, the Security Obligations, the other restrictions set forth in the Securities Acquisition Agreement the terms of the Note and Security Agreement, and applicable law.

(4) Please issue a certificate or certificates representing said shares of Warrant Shares in the name of the undersigned or in such other name as is specified below, with the understanding that such certificate shall be withheld by the Company in accordance with Section 4 of the Securities Acquisition Agreement.

KEITH DAUBENSPECK

Print Name

Signature

Date

Stock Power And Assignment

Separate From Stock Certificate

FOR VALUE RECEIVED and pursuant to that certain Warrant to Purchase Common Stock, dated as of                      (the “Agreement”), the undersigned hereby sells, assigns and transfers unto                             ,                  shares of the Common Stock of Bloom Energy Corporation, a Delaware corporation (the “Company”), standing in the undersigned’s name on the books of the Company represented by Certificate No(s).              delivered herewith, and does hereby irrevocably constitute and appoint the Secretary of the Company as the undersigned’s attorney-in-fact, with full power of substitution, to transfer said stock on the books of the Company. THIS ASSIGNMENT MAY ONLY BE USED AS AUTHORIZED BY THE AGREEMENT AND ANY EXHIBITS THERETO.

Dated:

/s/ Keith Daubenspeck

(Signature)

Keith Daubenspeck

(Please Print Name)

Instruction: Please do not fill in any blanks other than the signature line. The purpose of this Stock Power and Assignment is to enable the Company and/or its assignee(s) to acquire the shares upon exercise of its rights under applicable agreements between the Company and Holder without requiring additional signatures on the part of Holder.

EX-4

Exhibit 4.8

THE SECURITIES REPRESENTED BY THIS CERTIFICATE OR INSTRUMENT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE “ACT”) AND MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL REGISTERED UNDER THE ACT AND QUALIFIED OR EXEMPTED FROM QUALIFICATION UNDER ALL APPLICABLE BLUE SKY LAWS, OR, IN THE OPINION OF LEGAL COUNSEL SATISFACTORY TO THE ISSUER OF THESE SECURITIES, SUCH OFFER, SALE OR TRANSFER, PLEDGE OR HYPOTHECATION IS IN COMPLIANCE THEREWITH.

THE SECURITIES REPRESENTED BY THIS CERTIFICATE OR INSTRUMENT ARE SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFER AND A RIGHT OF FIRST REFUSAL HELD BY THE ISSUER OR ITS ASSIGNEE(S) AS SET FORTH IN AN AGREEMENT BETWEEN THE ISSUER AND THE ORIGINAL HOLDER OF THESE SHARES, A COPY OF WHICH MAY BE OBTAINED AT THE PRINCIPAL OFFICE OF THE ISSUER. SUCH TRANSFER RESTRICTIONS AND RIGHT OF FIRST REFUSAL ARE BINDING ON TRANSFEREES OF THESE SECURITIES.

THE SECURITIES REPRESENTED BY THIS CERTIFICATE OR INSTRUMENT ARE SUBJECT TO A LOCK-UP PERIOD OF UP TO 180 DAYS FOLLOWING THE EFFECTIVE DATE OF A REGISTRATION STATEMENT OF THE COMPANY FILED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AS SET FORTH IN AN AGREEMENT BETWEEN THE COMPANY AND THE ORIGINAL HOLDER OF THESE SECURITIES, A COPY OF WHICH MAY BE OBTAINED AT THE PRINCIPAL OFFICE OF THE COMPANY. SUCH LOCK-UP PERIOD IS BINDING ON THE TRANSFEREES OF THESE SECURITIES.

THE SHARES REPRESENTED BY THIS CERTIFICATE OR INSTRUMENT ARE SECURITY FOR CERTAIN INDEBTEDNESS OBLIGATIONS OF THE HOLDER PURSUANT TO THE TERMS OF A NOTE AND SECURITY AGREEMENT BETWEEN THE HOLDER AND THE ISSUER. THE SECURITIES REPRESENTED BY THIS INSTRUMENT ARE SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFER PURSUANT TO THE TERMS OF THE AFOREMENTIONED AGREEMENTS. A COPY OF SUCH AGREEMENTS MAY BE OBTAINED FROM THE COMPANY.

THE SECURITIES REPRESENTED BY THIS CERTIFICATE OR INSTRUMENT ARE SECURITY FOR CERTAIN INDEMNIFICATION OBLIGATIONS OF THE HOLDER ON THE TERMS SET FORTH IN AN AGREEMENT BETWEEN THE HOLDER AND THE ISSUER. THE SECURITIES REPRESENTED BY THIS INSTRUMENT ARE SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFER PURSUANT TO THE TERMS OF THE AFOREMENTIONED AGREEMENT. A COPY OF THE AGREEMENT MAY BE OBTAINED FROM THE COMPANY.

THE HOLDER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE OR INSTRUMENT HAS AGREED TO WAIVE ANY RIGHTS TO OBTAIN INFORMATION CONCERNING THE ISSUER, INCLUDING PURSUANT TO SECTION 220 OF THE DELAWARE GENERAL COPORATION LAW. SUCH WAIVER IS BINDING UPON ANY TRANSFEREE OF THESE SECURITIES AND A CONDITION TO TRANSFER OF THESE SECURITIES IS THE TRANSFEREE’S AGREEMENT TO SUCH WAIVER. A COPY OF THE AGREEMENT MAY BE OBTAINED FROM THE COMPANY.

THE SECURITIES REPRESENTED BY THIS INSTRUMENT ARE SUBJECT TO FURTHER RESTRICTIONS ON TRANSFERABILITY AS SET FORTH HEREIN.

BLOOM ENERGY CORPORATION

AGREEMENT AND WARRANT TO PURCHASE COMMON STOCK

Effective Date: June 27, 2014

Void After: June 26, 2019

This Agreement and Warrant to Purchase Common Stock (this “Agreement” or “Warrant”) certifies that, for value received, Dwight Badger (the “Holder”), is entitled, subject to the terms set forth below, to purchase from Bloom Energy Corporation, a Delaware corporation (the “Company”), the Warrant Shares upon surrender of this Warrant, at the principal office of the Company referred to below, with the subscription form attached hereto as Exhibit A (the “Notice of Exercise”) duly executed, and simultaneous payment therefor in lawful money of the United States (or otherwise as hereinafter provided) of the aggregate Exercise Price (as defined below). The Exercise Price and the number of Warrant Shares purchasable hereunder are subject to adjustment as provided herein.

This Warrant has been issued pursuant to that certain Securities Acquisition Agreement, dated as of as of the Effective Date set forth above, by and between the Company, Holder, and certain other parties (the “Confidential Agreement”) and that certain Securities Acquisition Agreement, dated as of the Effective Date, by and between the Company, the Holder, and certain other parties (the “Securities Acquisition Agreement”) and this Warrant is subject to the Transfer Restrictions, the Indemnification Obligations, and the Security Obligations (each as defined in the Securities Acquisition Agreement) and the other terms and conditions found in the Confidential Agreement and the Securities Acquisition Agreement. Capitalized terms not otherwise defined herein shall be given the meaning assigned to such term in the Securities Acquisition Agreement. This Warrant and the Warrant Shares have been pledged as collateral for the payment and performance of certain obligations of the Holder under that certain Security Agreement of even date with the Confidential Agreement (the “Security Agreement”).

1. Number of Shares. This Warrant may be exercised, in whole or in part, for up to 25,000 shares of the Company’s Common Stock (the “Warrant Shares”).

2. Exercise Price. The per share purchase price of the Warrant Shares (the “Exercise Price”) for which this Warrant may be exercised shall be $25.76.

3. Exercise of Warrant.

3.1 Time of Exercise. Subject to the terms and conditions set forth herein, this Warrant shall be exercisable, in whole or in part, at any time or from time to time prior to 5:00 p.m. (Pacific Standard Time) on June 26, 2019 (the “Expiration Date”). Notwithstanding the foregoing, this Warrant shall terminate immediately prior to the consummation of a Liquidation (as defined in the Securities Acquisition Agreement). The Company shall provide the Holder with the same notice of a Liquidation that the Company provides to its stockholders generally.

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3.2 Method of Exercise. The exercise shall only be effected by (a) the surrender of the original copy of this Warrant to the Company at the principal office of the Company as set forth in Section 11.4 (or such other office or agency of the Company as may be designated by notice in writing to the Holder at the address of the Holder appearing on the books of the Company), (b) delivery of a notarized and executed Notice of Exercise and (c) unless payment of the Exercise Price is made pursuant to a “net exercise” as provided under Section 4 below, payment of the Exercise Price in cash or by check acceptable to the Company.

3.3 Effect of Exercise. This Warrant (or the portion thereof exercised) shall be deemed to have been exercised immediately prior to the close of business on the date of its surrender for exercise as provided above, and the person entitled to receive the shares of Warrant Shares issuable upon such exercise shall be treated for all purposes as the holder of record of such shares as of the close of business on such date. Subject to the terms of the Securities Acquisition Agreement, the Company, at its expense, shall, within five (5) business days after exercise, issue and deliver to the person or persons entitled to receive the same a certificate or certificates for the number of shares issuable upon such exercise and, unless this Warrant shall have expired, a new warrant representing the right to acquire the number of shares of Warrant Shares represented by the surrendered Warrant, if any, that shall not have been exercised shall also be delivered to the Holder.

3.4 Duty to Deliver. Subject to the terms of the Securities Acquisition Agreement, each stock certificate issued upon exercise of this Warrant (or issued upon conversion thereof), and issued in connection with adjustments under Section 10 hereof with respect to such shares, shall be immediately delivered to the Company and be held in escrow by the Company pursuant to the provisions of Section 4 of the Securities Acquisition Agreement and pursuant to the provisions of Section 3 of the Security Agreement. Furthermore, any new, additional or different securities that may now or hereafter become distributable with respect to any securities issued upon exercise of this Warrant by reason of any adjustment required by Section 10 of hereof or otherwise shall, upon receipt by the Holder, be promptly delivered to and deposited with the Company unless otherwise deposited immediately into escrow by the Company according to the Securities Acquisition Agreement. The Holder shall provide with respect to each such certificate representing such securities one or more stock powers properly executed in blank in the form attached to the Securities Acquisition Agreement.

3.5 Limitation on Exercise. Notwithstanding any other provision of this Agreement, the Company’s obligation to issue Warrant Shares hereunder is subject to additional limitations set forth in Section 10 of the Confidential Agreement pursuant to which the Warrant Shares, if issued, stand as security for certain indemnity obligations of the initial Holder, and pursuant to which the Company’s obligations to issue Warrant Shares hereunder may be cancelled in satisfaction of such obligations.

4. Net Exercise.

4.1 Net Issue Exercise. In lieu of exercising this Warrant via cash payment, the Holder may elect to receive shares equal to the value of this Warrant (or the portion thereof being canceled) by surrender of this Warrant at the principal office of the Company together with the completed Notice of Exercise indicating the Holder’s election to exercise this Warrant by means of a “net exercise,” in which event the Company shall issue to the Holder a number of shares of Common Stock computed using the following formula:

X = Y (A - B)

             A

Where X = the number of Warrant Shares to be issued to the Holder.

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Y	=	the number of Warrant Shares purchasable under this Warrant or, if only a portion of the Warrant is being exercised, the portion of the Warrant being cancelled (at the date of such calculation).
A	=	the fair market value (as determined below) of one Warrant Share (at the date of such calculation).
B	=	the Exercise Price (as adjusted to the date of such calculation).

If the above calculation results in a negative number, then no shares of Warrant Shares shall be issued or issuable upon conversion of this Warrant.

4.2 Fair Market Value. For purposes of this Section 4, the fair market value of one Warrant Share shall be determined by the Company’s Board of Directors in good faith; provided, however, that where there exists a public market for the Warrant Shares at the time of such exercise, the fair market value per Warrant Share shall be the average of the closing bid and asked prices of the Warrant Shares quoted in the Over-The-Counter Market Summary or the average of the high and low prices as reported by The Nasdaq National Market, the Nasdaq Small Cap Market or on any exchange on which the Warrant Shares is listed, whichever is applicable, for the five (5) trading days prior to the date of the delivery of the Net Exercise Notice.

5. No Fractional Shares or Scrip. No fractional shares or scrip representing fractional shares shall be issued upon the exercise of this Warrant. In lieu of any fractional share to which the Holder would otherwise be entitled, the Company shall make a cash payment equal to the Exercise Price multiplied by such fraction computed to the nearest whole cent.

6. No Rights as Stockholder. The Holder shall not be entitled to vote or receive dividends or be deemed the holder of Warrant Shares or any other securities of the Company that may at any time be issuable on the exercise hereof for any purpose, nor shall anything contained herein be construed to confer upon the Holder, as such, any of the rights of a stockholder of the Company or any right to vote for the election of directors or upon any matter submitted to stockholders at any meeting thereof, or to give or withhold consent to any corporate action or to receive notice of meetings, or to receive dividends or subscription rights or otherwise, until the Warrant shall have been exercised as provided herein.

7. Transfer of Warrant.

7.1 Transferability of Warrant. Holder agrees that this Warrant and the securities issuable upon exercise of this Warrant may not be offered, sold, transferred or disposed of in any other way without the prior written consent of the Company. Notwithstanding the foregoing, this Warrant and the securities issuable upon exercise of this Warrant may be transferred to the heirs of the Holder provided that such heirs assume all of the obligations of the Holder that are set forth in the Settlement Agreements (as defined in the Securities Acquisition Agreement).

7.2 Shares Issued Upon Exercise Subject to Transfer Restrictions. The securities issuable upon exercise of this Warrant shall be subject to the Transfer Restrictions, the Indemnification Obligations, and the Security Obligations, as well as any other limitations set forth in the Securities Acquisition Agreement, and each transferee of this Warrant or the securities issuable upon exercise of this Warrant, shall agree as a condition to any offer, sale, transfer, or disposition that this Warrant and/or any securities issuable upon exercise of this Warrant shall be bound by and subject to the terms of the Transfer Restrictions, the Indemnification Obligations, and the Security Obligations, as well as such other limitations.

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7.3 Transfer Procedures. Subject to the foregoing limitations and requirements, if Holder desires to offer, sell, transfer or dispose of in any other way this Warrant or the securities issuable upon exercise of the Warrant, Holder shall comply with the procedures set forth in Section 3.1(b) of the Securities Acquisition Agreement. Prior to a permitted transfer, the Company shall treat the Holder hereof as the owner and Holder of this Warrant and Company shall not be affected by notice to the contrary.

7.4 Register. The Company will maintain a register (the “Warrant Register”) containing the name and address of the Holder. The Holder of this Warrant may change its address as shown on the Warrant Register by written notice to the Company requesting such change. Any notice or written communication required or permitted to be given to the Holder may be delivered or given by mail to the Holder as shown on the Warrant Register and at the address shown on the Warrant Register.

8. Representations and Warranties of the Holder and Restrictions on Transfer Imposed.

8.1 Representations and Warranties by the Holder. In order to induce the Company to issue this Warrant to the original Holder, the original Holder has made representations and warranties to the Company as set forth in the Securities Acquisition Agreement, which are incorporated herein by reference.

8.2 Legends. The Holder agrees that it will not offer, sell or otherwise dispose of this Warrant or any Warrant Shares to be issued upon exercise hereof except under circumstances which will not result in a violation of the Securities Act or any state securities law. This Warrant and all Warrant Shares issued upon exercise of this Warrant shall be stamped or imprinted with legends in substantially the forms set forth at the top of this Warrant.    

9. Lost Documents. Upon receipt by the Company of evidence and indemnity satisfactory to it of the loss, theft, destruction or mutilation of, and upon surrender and cancellation of this Warrant, if mutilated, the Company will make and deliver to the Holder, in lieu of this Warrant, a new Warrant of the same series and of like tenor of this Warrant.

10. Adjustments. The number of shares purchasable hereunder are subject to adjustment from time to time as follows:

10.1 Reorganization, Reclassification. Merger or Conveyance. If any capital reorganization or reclassification or merger or conveyance of the capital stock of the Company shall be effected in such a way that holders of Warrant Shares shall be entitled to receive stock, securities or assets with respect to or in exchange for Warrant Shares, then, as a condition of such reorganization, reclassification, merger or conveyance, lawful and adequate provisions shall be made whereby the Holder of the Warrant shall thereafter have the right to receive upon the basis and upon the terms and conditions specified herein and in lieu of the shares of Warrant Shares immediately theretofore receivable upon the exercise of the Warrant, such shares of stock, securities or assets (including cash) as may be issued or payable with respect to or in exchange for a number of outstanding shares of such Warrant Shares equal to the number of shares of such stock immediately theretofore so receivable, had such reorganization, reclassification, merger or conveyance not taken place, and in any such case appropriate provision shall be made with respect to the rights and interests of such holder to the end that the provisions hereof (including, without limitation, provisions for adjustments of the Exercise Price) shall thereafter be applicable, as nearly as may be, in relation to any shares of stock, securities or assets thereafter deliverable upon the exercise of such exercise rights.

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10.2 Split, Subdivision or Combination of Shares. If the Company at any time while this Warrant, or any portion thereof, remains outstanding and unexpired shall split, subdivide or combine the securities as to which purchase rights under this Warrant exist, into a different number of securities of the same class, the Exercise Price for such securities shall be proportionately decreased in the case of a split or subdivision or proportionately increased in the case of a combination and the number of the securities as to which purchaser rights under this Warrant exist shall be increased or decreased proportionately in accordance with such split subdivision or combination.

10.3 Certificate as to Adjustments. Upon the occurrence of each adjustment or readjustment pursuant to this Section 10, the Company at its expense shall promptly compute such adjustment or readjustment in accordance with the terms hereof and furnish to the Secretary of the Company for filing in the Company’s records and to the Holder a certificate setting forth such adjustment or readjustment and showing in detail the facts upon which such adjustment or readjustment is based. The Company shall, upon the written request, at any time, of the Holder, furnish or cause to be furnished to the Holder a like certificate setting forth: (a) such adjustments and readjustments; (b) the Exercise Price at the time in effect; and (c) the number of shares and the amount, if any, of other property that at the time would be received upon the exercise of the Warrant. No such adjustment or change shall compel immediate exercise of this Warrant or otherwise affect the Expiration Date of this Warrant. Irrespective of any adjustment or other changes made hereunder, this Warrant (or any other warrant issued in exchange therefor) may continue to express the same number and kind of Warrant Shares (except to the extent exercised) and the same Exercise Price as are initially stated herein.

11. General Provisions.

11.1 Governing Law. The validity, interpretation, performance, and enforcement of this Warrant, as well as any other rights, obligations or liabilities otherwise related to the subject matter of this Warrant, shall be governed by and construed under the internal laws of the State of California as applied to agreements among California residents entered into and to be performed entirely within California, without reference to principles of conflict of laws or choice of laws.

11.2 Survival. The representations, warranties, covenants and agreements made herein shall survive the execution of this Agreement and the exercise of this Warrant.

11.3 Successors and Assigns. Except as otherwise expressly provided herein, the provisions hereof shall inure to the benefit of, and be binding upon, the successors, assigns, heirs, executors and administrators of the parties hereto. The Company may assign any of its rights and obligations under this Warrant. Except as set forth in Section 7.1, the Holder may not assign, whether voluntarily or by operation of law, any of its rights and obligations under this Warrant, unless the Company provides prior written consent.

11.4 Notices, etc. Any and all notices required or permitted to be given to a party pursuant to the provisions of this Agreement will be in writing and will be effective and deemed to provide such party sufficient notice under this Agreement on the earliest of the following: (a) at the time of personal delivery, if delivery is in person; (b) 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; or (c) 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 express courier. All notices not delivered personally will be sent with postage and/or other charges prepaid and properly addressed to the party to be notified at the address set forth below the signature lines of this Agreement or at such other address as such other party may designate by one of the indicated means of notice herein to the other party hereto. A “business day” shall be a day, other than Saturday or Sunday, when the banks in the city of San Francisco are open for business.

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11.5 Amendments. This Warrant may be amended and the observance of any term of this Warrant may be waived only with the written consent of the Company and the Holder. No delay or failure to require performance of any provision of this Warrant shall constitute a waiver of that provision as to that or any other instance. No waiver granted under this Warrant 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.

11.6 Arbitration. Any dispute or controversy of any kind between the parties hereto, whether arising out of, relating to or concerning any interpretation, construction, performance or breach of this Agreement, or otherwise, shall be settled by confidential arbitration to be held in Santa Clara, California in accordance with the commercial dispute rules then in effect of the American Arbitration Association. The Arbitrator may grant injunctions or other relief in such dispute or controversy. Judgment may be entered on the Arbitrator’s decision in any court having jurisdiction. The Company and the Holder shall each be responsible for one half of the costs and expenses of such arbitration, and each shall separately pay its counsel fees and expenses; provided, however, in the event of a determination by the Arbitrator which is adverse to the Company or the Holder, as the case may be, the non-prevailing party shall be responsible for all of the costs and expenses of such arbitration, and for all of the counsel fees and expenses of the Company or the Holder relating thereto. For purposes of any action arising out of the application, interpretation or alleged breach of this Agreement, each of the parties hereto waives any statutory or common law principle, and any judicial interpretation of this Agreement, which would create a presumption against any party hereto as a result of such party having drafted any provision of this Agreement. Counsel for the respective parties have reviewed and revised this Agreement, and there shall not be applied any rule construing ambiguities against the drafting party.

11.7 Severability. If any provision of this Warrant 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 Warrant and the remainder shall be enforced as if such invalid, illegal or unenforceable clause or provision had (to the extent not enforceable) never been contained in such agreement.

11.8 Counterparts. This Agreement may be executed in any number of counterparts each of which shall be an original, but all of which together shall constitute one instrument. This Warrant may be executed and delivered by facsimile or other means of electronic delivery and upon such delivery the signature will be deemed to have the same effect as if the original signature had been delivered to the other party.

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IN WITNESS WHEREOF, the Company and the Holder have caused the Warrant to be executed by a duly authorized officer thereof as of the effective date of this Warrant set forth above.

BLOOM ENERGY CORPORATION
By:	/s/ William H. Kurtz
	Name:	William H. Kurtz
	Title:	Chief Financial Officer and Secretary

AGREED AND ACCEPTED:
DWIGHT BADGER
By:	/s/ Dwight O. Badger
Name:	Dwight O. Badger
Title:
Address:

[SIGNATURE PAGE TO COMMON STOCK WARRANT]

EXHIBIT A

NOTICE OF EXERCISE

To: BLOOM ENERGY CORPORATION

We refer to that certain Agreement and Warrant to Purchase Common Stock (the “Warrant”). Capitalized terms not otherwise defined herein shall be given the meaning assigned to such term in the Warrant.

(1) Cash Exercise: The undersigned hereby elects to purchase                shares of Common Stock (“Warrant Shares”) of Bloom Energy Corporation pursuant to the terms of the Warrant, and tenders herewith payment of the Exercise Price for such shares in full at the price per share provided in the Warrant and the attached signed and Stock Power and Assignment Separate from Stock Certificate.

Net Exercise Election: The undersigned hereby elects to convert the Warrant into shares of Common Stock (“Warrant Shares”) by net exercise election pursuant to the terms of the Warrant and tenders herewith the attached signed and Stock Power and Assignment Separate from Stock Certificate. This conversion is exercised with respect to                of the Warrant Shares covered by the Warrant.

(2) The undersigned hereby confirms and acknowledges that

a. The representations and warranties set forth in Section 2 of the Securities Acquisition Agreement as they apply to the undersigned Holder continue to be true and complete as of this date with the same effect as when they were made on and as of the Effective Date (as defined in the Securities Acquisition Agreement).

b. The undersigned Holder has performed and complied with, and has not breached any of, the terms, agreements, obligations and conditions of the Settlement Agreements (as defined in the Securities Acquisition Agreement).

c. The undersigned Holder hereby agrees, confirms, and acknowledge that the Warrant Shares being issued to me on the date hereof is subject to the Transfer Restrictions, the Indemnification Obligations, the Security Obligations, the other restrictions set forth in the Securities Acquisition Agreement the terms of the Note and Security Agreement, and applicable law.

(4) Please issue a certificate or certificates representing said shares of Warrant Shares in the name of the undersigned or in such other name as is specified below, with the understanding that such certificate shall be withheld by the Company in accordance with Section 4 of the Securities Acquisition Agreement.

DWIGHT BADGER

Print Name

Signature

Date

Stock Power And Assignment

Separate From Stock Certificate

FOR VALUE RECEIVED and pursuant to that certain Warrant to Purchase Common Stock, dated as of                    (the “Agreement”), the undersigned hereby sells, assigns and transfers unto                                         ,                shares of the Common Stock of Bloom Energy Corporation, a Delaware corporation (the “Company”), standing in the undersigned’s name on the books of the Company represented by Certificate No(s).        delivered herewith, and does hereby irrevocably constitute and appoint the Secretary of the Company as the undersigned’s attorney-in-fact, with full power of substitution, to transfer said stock on the books of the Company. THIS ASSIGNMENT MAY ONLY BE USED AS AUTHORIZED BY THE AGREEMENT AND ANY EXHIBITS THERETO.

Dated:

/s/ Dwight Badger

(Signature)

Dwight Badger

(Please Print Name)

Instruction: Please do not fill in any blanks other than the signature line. The purpose of this Stock Power and Assignment is to enable the Company and/or its assignee(s) to acquire the shares upon exercise of its rights under applicable agreements between the Company and Holder without requiring additional signatures on the part of Holder.

EX-4

Exhibit 4.9

THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE HEREUNDER HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 AS AMENDED (the “1933 ACT”), OR ANY STATE SECURITIES LAWS. THEY MAY NOT BE SOLD. OFFERED FOR SALE, PLEDGED, OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO YOU THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE 1933 ACT. OR ANY APPLICABLE STATE SECURITIES LAWS.

PLAIN ENGLISH WARRANT AGREEMENT

This is a PLAIN ENGLISH WARRANT AGREEMENT dated December 31, 2010 by and between BLOOM ENERGY CORPORATION, a Delaware corporation, and TRIPLEPOINT CAPITAL LLC, a Delaware limited liability company.

The words “We”, “Us”, or “Our” refer to the warrant holder, which is TRIPLEPOINT CAPITAL LLC. The words “You” or “Your” refers to the issuer, which is BLOOM ENERGY CORPORATION, and not to any individual. The words “the Parties” refers to both TRIPLEPOINT CAPITAL LLC and BLOOM ENERGY CORPORATION. This Plain English Warrant Agreement may be referred to as the “Warrant Agreement”.

The Parties have entered into a Plain English Master Lease Agreement dated as of December 31, 2010, and related Software or Hardware Facility Schedules and Summary Schedules which are collectively referred to in this Warrant Agreement as the “Lease Agreement”.

In consideration of such Lease Agreement, the Parties agree to the following mutual agreements and conditions set forth below:

WARRANT INFORMATION
Effective Date	Warrant Number	Lease Facility Schedules
December 31, 2010	0674-W-01	0674-LE-01H/-01S

Warrant Coverage	Number of Shares	Price Per Share	Type of Stock
$300,000 (3% of $10,000,000); additional warrant coverage as set forth in Section 1.	16,198; plus additional shares as set forth in Section 1. The Number of Shares is subject to adjustment as set forth in this Warrant Agreement.	$18.52 subject to adjustment as set forth in this Warrant Agreement	Series F Preferred Stock; subject to the provisions of Section 1.

	OUR CONTACT INFORMATION
Name	Address For Notices	Contact Person
TriplePoint Capital LLC	2755 Sand Hill Road, Ste. 150 Menlo Park, CA 94025 Tel: (650) 854-2090 Fax: (650) 854-1850	Sajal Srivastava, COO Tel: (650) 233-2102 Fax: (650) 854-1850 email: legal@triplepointcapital.com
	YOUR CONTACT INFORMATION
Customer Name	Address For Notices	Contact Person
Bloom Energy Corporation	1252 Orleans Drive Sunnyvale, CA 94089	William Kurtz, CFO Tel: (408) 543-1550 Fax: (408) 543-1501 email: wkurtz@bloomenergy.com

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1. WHAT YOU AGREE TO GRANT US

You grant to Us and We are entitled, upon the terms and subject to the conditions set forth in this Warrant Agreement, to purchase from You, at a price per share equal to the Exercise Price, that number of fully paid and non-assessable shares of Your Warrant Stock equal to Three Hundred Thousand Dollars ($300,000), divided by the Exercise Price (rounded down to the nearest whole share).

In addition, You grant to Us and We are entitled, upon the terms and subject to the conditions set forth in this Warrant Agreement, to purchase from You, at a price per share equal to the Exercise Price, an additional number of fully paid and non-assessable shares of Your Warrant Stock (rounded down to the nearest whole share) equal to:

Þ one-half percent (0.5%) of any amounts leased under Part 1 of the Lease Agreement, divided by the Exercise Price, if You choose Option B for such leased Equipment; or

Þ one percent (1.0%) of any amounts leased under Part 1 of the Lease Agreement, divided by the Exercise Price, if You choose Option C for such leased Equipment.

The number of shares of Warrant Stock and the Exercise Price of such Warrant Stock are subject to adjustment as provided in Section 4 hereof.

For purposes of this Warrant Agreement, the following capitalized terms have the meanings given below:

“Exercise Price” means the lower of (a) $18.52 and (b) the lowest per share price for which Your preferred stock is sold in the Next Round.

“Next Round” means the next bona fide round of equity financing in which You issue and sell shares of your preferred stock for aggregate gross cash proceeds of at least $1,000,000 (excluding any amounts received upon conversion or cancellation of indebtedness) subsequent to the Effective Date.

“Warrant Stock” means (a) the class and series of Your preferred stock issued in the Next Round, if the lowest per share price for which such preferred stock is sold in the Next Round is less than $18.52, or (b) in all other cases, Your Series F Preferred Stock. For avoidance of doubt, if this Warrant Agreement is exercised prior to the Next Round then this Warrant Agreement shall be exercisable for Your Series F Preferred Stock.

The Parties agree that this Warrant Agreement to purchase the Warrant Stock has a fair market value equal to $100 and that $100 of the issue price is included as part of the leased value and will be allocable to the Warrant Agreement and the original issue discount on the Lease Agreement shall be considered to be zero.

2. WHEN ARE WE ENTITLED TO PURCHASE YOUR WARRANT STOCK.

The term of this Warrant Agreement and our right to purchase Warrant Stock will begin on the Effective Date, and shall be available for a period of ten (10) years up to and including December 31, 2020.

Notwithstanding the foregoing, Our right to purchase the Warrant Stock shall be automatically and fully exercised via the net issuance method described below (without surrender of the Warrant Agreement) upon the occurrence of a Merger Event, as defined below, with a Person that is not one of Your affiliates, in which Your common stock is exchanged for cash and/or stock that is traded on a recognized public exchange or on the NASDAQ National Market, provided that, upon consummation of the Merger Event, the consideration payable to Us pursuant to such exercise and on account of the Warrant Stock consists of (i) cash or (ii) stock that is traded on a recognized public exchange or on the NASDAQ National Market. No less than ten (10) business days prior to any Merger Event, You shall provide Us with written notice of the proposed Merger Event together with a copy of the executed merger agreement, or other definitive documentation (and all schedules and exhibits thereto) and information concerning Your expected capitalization immediately prior to the Merger Event. Upon consummation of the Merger Event, You shall promptly provide Us with (a) a copy of any modifications or amendments to the executed merger agreement, (b) any other documents in connection therewith, (c) updated information, if any, concerning Your capitalization immediately prior to the Merger Event, and, (d) upon request, by Us any other information reasonably necessary to an informed evaluation of Our rights under this Agreement.

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3. HOW WE MAY PURCHASE YOUR WARRANT STOCK.

We may exercise Our purchase rights, in whole or in part, at any time, or from time to time, prior to the expiration of the term of this Warrant Agreement, by giving You a completed and executed Notice of Exercise in the form attached as Exhibit I. Promptly upon receipt of the Notice of Exercise and in any event no later than twenty-one (21) days after you have received Our Notice of Exercise and payment of the aggregate Exercise Price for the shares purchased, You will issue to Us a certificate for the number of shares of Warrant Stock that We have purchased and You will execute the Acknowledgment of Exercise in the form attached hereto as Exhibit II indicating the number of shares which will be available to Us for future purchases, if any.

We may pay for the Warrant Stock by either (i) cash or check, or (ii) by the net issuance method as determined below. If We elect the Net Issuance method, You will issue Warrant Stock using the following formula:

X	=	Y(A-B)
		A

Where:   X =	the number of shares of Warrant Stock to be issued to Us.
Y =	the number of shares of Warrant Stock We request to be exercised under this Warrant Agreement.
A =	the fair market value of one share of Warrant Stock.
B =	the Exercise Price.

For purposes of the above calculation, current fair market value of Warrant Stock shall mean with respect to each share of Warrant Stock:

If the exercise is in connection with the initial public offering of Your Common Stock, and if Your registration statement relating to such public offering has been declared effective by the SEC, then the fair market value per share shall be the product of (x) the initial “Price to Public” specified in the final prospectus of the offering and (y) the number of shares of Common Stock into which each share of Warrant Stock is convertible at the time of such exercise;

If this Warrant Agreement is exercised after, and not in connection with Your initial public offering, and:

Þ if traded on a securities exchange, the fair market value shall be the product of (x) the average of the closing prices over a five (5) day period ending three (3) days before the day the current fair market value of the securities is being determined and (y) the number of shares of Common Stock into which each share of Warrant Stock is convertible at the time of such exercise; or

Þ if actively traded over-the-counter, the fair market value shall be the product of (x) the average of the closing bid and asked prices quoted on the NASDAQ system (or similar system) over the five (5) day period ending three (3) days before the day the current fair market value of the securities is being determined and (y) the number of shares of Common Stock into which each share of Warrant Stock is convertible at the time of such exercise.

If this Warrant Agreement is exercised prior to or after Your initial public offering, and:

Þ Your Common Stock is not listed on any securities exchange or the over-the-counter market, the current fair market value of Warrant Stock shall be the product of (x) the fair market value of a share of Your Common Stock (the highest price per share which You could obtain from a willing buyer (not a current employee or director) for shares of Common Stock sold, from authorized but unissued shares), as determined in good faith by Your Board of Directors and (y) the number of shares of Common Stock into which each share of Warrant Stock is convertible at the time of such exercise, unless You shall become subject to a merger, acquisition or other consolidation pursuant to which You are not the surviving party, in which case the fair market value of Warrant Stock shall be deemed to be the value received by the holders of Your Warrant Stock on a common equivalent basis pursuant to such merger or acquisition or other consolidation.

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During the term of this Warrant Agreement, You will at all times from and after the Effective Date have authorized and reserved a sufficient number of shares of (a) Warrant Stock to provide for the exercise of our rights to purchase Warrant Stock, and (b) Common Stock to provide for the conversion of the Warrant Stock.

If We elect to exercise part of the Warrant Agreement, You will promptly issue to Us an amended Warrant Agreement stating the remaining number of shares that are available. All other terms and conditions of that amended Warrant Agreement shall be identical to those contained in this Warrant Agreement.

If at the end of the term of this Warrant Agreement, the fair market value of one share of Warrant Stock (or other security issuable upon the exercise hereof) as determined in accordance herewith is greater than the Exercise Price in effect on such date, then this Warrant Agreement shall automatically be deemed on and as of such date to be converted pursuant hereto as to all shares of Warrant Stock (or such other securities) for which it shall not previously have been exercised or converted, and You shall promptly deliver a certificate representing the shares of Warrant Stock (or such other securities) issued upon such conversion to Us.

4. WHEN WILL THE NUMBER OF SHARES AND EXERCISE PRICE CHANGE.

Þ If You are Acquired. If at any time: (i) there is a reorganization of Your stock (other than a reclassification, exchange or subdivision of Your stock otherwise provided for in this Warrant Agreement); (ii) You merge or consolidate with or into another entity, whether or not You are the surviving entity; or (iii) there occurs any transaction or series of related transactions that result in the transfer of fifty percent (50%) or more of the outstanding voting power of the capital stock of You (each of the foregoing events are referred to as a “Merger Event”), then, as a part of such Merger Event, lawful provision shall be made so that We shall thereafter be entitled to receive, upon exercise of Our rights under this Warrant Agreement, the number of shares of preferred stock or other securities of the successor or surviving person resulting from such Merger Event, equal in value to that which would have been issuable if We had exercised Our rights under this Warrant Agreement immediately prior to the Merger Event. In any such case, appropriate adjustment (as determined in good faith by Your Board of Directors) shall be made in the application of the provisions of this Warrant Agreement with respect to Our rights and interest after the Merger Event so that the provisions of this Warrant Agreement (including adjustments of the Exercise Price and number of shares of Warrant Stock purchasable) shall be applicable to the greatest extent possible.

Þ If You Reclassify Your Stock. If at any time You combine, reclassify (including by conversion of outstanding preferred stock), exchange or subdivide Your securities or otherwise, change any of the securities as to which purchase rights under this Warrant Agreement exist into the same or a different number of securities of any other class or classes, this Warrant Agreement will thereafter represent the right to acquire such number and kind of securities as would have been issuable as the result of such change with respect to the securities which were subject to the purchase rights under this Warrant Agreement immediately prior to such combination, reclassification, exchange, subdivision or other change.

Þ If You Subdivide or Combine Your Shares. If at any time You combine or subdivide the Warrant Stock, the Exercise Price will be proportionately decreased in the case of a subdivision, or proportionately increased in the case of a combination.

Þ If You Pay Stock Dividends. If at any time You pay a dividend payable in, or make any other distribution (except any distribution specifically provided for in the above paragraphs) of the Warrant Stock, then the Exercise Price shall be adjusted, from and after the record date of such dividend or distribution, to that price determined by multiplying the Exercise Price in effect immediately prior to such record date by a fraction (i) the numerator of which shall be the total number of all shares of the Warrant Stock outstanding immediately prior to such dividend or distribution, and (ii) the denominator of which shall be the total number of all shares of the Warrant Stock outstanding immediately after such dividend or distribution. We will thereafter be entitled to purchase, at the Exercise Price resulting from such adjustment, the number of shares of Warrant Stock (rounded down to the nearest whole share) obtained by multiplying the Exercise Price in effect immediately prior to such adjustment by the number of shares of Warrant Stock issuable upon the exercise hereof immediately prior to such adjustment and dividing the product thereof by the Exercise Price resulting from such adjustment.

Þ If You Change the Antidilution Rights of the Warrant Stock or Issue New Preferred or Convertible Stock. All antidilution rights applicable to the Warrant Stock purchasable under this Warrant Agreement are as set forth in Your

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Certificate of Incorporation, as amended through the Effective Date. You will promptly provide Us with any restatement, amendment, modification of or waiver of any right related to the Warrant Stock under Your Certificate of Incorporation. You will provide Us with written notice of any issuance of Your stock or other equity security to occur after the Effective Date (other than issuances of stock or equity securities pursuant to customary employee stock plans) that triggers the antidilution rights applicable to the Warrant Stock, which notice shall include (a) the price at which such stock or security was sold, (b) the number of shares issued, and (c) such other information as necessary for Us to determine that a dilutive event has occurred as a result of such issuance.

Þ If You Lease More Than the Commitment Amounts Under the Lease Agreement. If the total cost of equipment leased pursuant to the Lease Facility Schedules exceeds $10,000,000 under the Part 1 Commitment Amount, We will have the right to purchase from You, at the Exercise Price (adjusted as set forth herein), an additional number of shares of Warrant Stock, which number shall be determined by (i) multiplying the amount by which the equipment cost financed under the Lease Facility Schedules exceeds $10,000,000 under the Part 1 Commitment Amount by 3% for Option A, 3.5% for Option B or 4.0% for Option C and (ii) dividing the product by the Exercise Price per share referenced in Section I above. For the avoidance of doubt, We will not be entitled to purchase Warrant Stock from You as a result of any amounts leased under Part II of the Lease Agreement, except as set forth in a separate warrant agreement that is executed by both Parties.

5. WE CAN TRANSFER THIS PLAIN ENGLISH WARRANT AGREEMENT.

Subject to the terms and conditions contained in Section 7, We (or any successor transferee) may transfer in whole or in part this Warrant Agreement and all its rights. We agree not to transfer this Warrant Agreement to a competitor of You as determined in good faith by Your board of directors. You will record the transfer on Your books when You receive Our Notice of Transfer in the form attached hereto as Exhibit III, and Our payment of all transfer taxes and other governmental charges involved in such transfer.

6. REPRESENTATIONS, WARRANTIES, AND COVENANTS FROM YOU.

Þ Reservation of Warrant Stock. The Warrant Stock issuable upon exercise of Our rights under this Warrant Agreement will be duly and validly reserved and when issued in accordance with the provisions of this Warrant Agreement will be validly issued, fully paid and non-assessable, and will be free of any taxes, liens, charges or encumbrances of any nature whatsoever; provided, however, that the Warrant Stock issuable pursuant to this Warrant Agreement may be subject to restrictions on transfer under state and/or Federal securities laws or the Registration Rights Agreement. Upon Our exercise, You will issue to Us certificates for shares of Warrant Stock without charging Us any tax (except as may be required by applicable law), or other cost incurred by You in connection with such exercise and the related issuance of shares of Warrant Stock. You will not be required to pay any tax, which may be payable in respect of any transfer involved and the issuance and delivery of any certificate in a name other than TriplePoint Capital LLC.

Þ Due Authority. Your execution and delivery of this Warrant Agreement and the performance of Your obligations hereunder, including the issuance to Us of the right to acquire the shares of Warrant Stock, have been duly authorized by all necessary corporate action on Your part and this Warrant Agreement is not inconsistent with Your Certificate of Incorporation or Bylaws, does not contravene any law or governmental rule, regulation or order applicable to it, do not and will not contravene any provision of, or constitute a default under, any indenture, mortgage, contract or other instrument to which You are a party or by which You are bound, and this Warrant Agreement constitutes a legal, valid and binding agreement, enforceable in accordance with its respective terms, subject to laws of general application relating to bankruptcy, insolvency and the relief of debtors and the rules of law or principles at equity governing specific performance, injunctive relief and other equitable remedies.

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Þ Consents and Approvals. No consent or approval of, giving of notice to, registration with, or taking of any other action in respect of any state, Federal or other governmental authority or agency is required with respect to execution, delivery and Your performance of Your obligations under this Warrant Agreement, except for the filing of any required notices pursuant to Federal and state securities laws, which filings will be effective by the times required thereby.

Þ Issued Securities. All of Your issued and outstanding shares of Common Stock, Warrant Stock or any other securities have been duly authorized and validly issued and are fully paid and nonassessable. All outstanding shares of Common Stock and Warrant Stock were issued in full compliance with all Federal and state securities laws. In addition as of the Effective Date:

Your authorized capital consists of (i) 105,608,000 shares of Common Stock, of which 12,027,455 shares of Common Stock are issued and outstanding, (ii) 14,100,000 shares of Series A Preferred Stock, of which 13,650,000 shares are issued and outstanding, (iii) 12,150,000 shares of Series B Preferred Stock, of which 11,803,284 shares are issued and outstanding, (iv) 9,000,000 shares of Series C Preferred Stock, of which 8,968,604 shares are issued and outstanding, (v) 10,700,000 shares of Series D Preferred Stock, of which 9,481,998 shares are issued and outstanding, (vi) 16,500,000 shares of Series E Preferred Stock, of which 11,342,180 shares are issued and outstanding, and (vii) 19,908,000 shares of Series F Preferred Stock, of which 18,061,055 shares are issued and outstanding.

You have reserved 14,493,334 shares of Common Stock for issuance under Your Stock Incentive Plan, under which 7,264,503 options have been granted and are currently outstanding. You have warrants outstanding to purchase up to 424,342 shares of Series A Preferred Stock, 183,748 shares of Series D Preferred Stock, 4,468,854 shares of Series E Preferred Stock and 263,261 shares of Series F Preferred Stock. Except as otherwise provided in this Warrant Agreement and as noted above, there are no other options, warrants, conversion privileges or other rights presently outstanding to purchase or otherwise acquire any authorized but unissued shares of Your capital stock or other of Your securities.

Except as set forth in Your Eighth Amended and Restated Stockholders’ Rights Agreement dated as of October 29, 2010 (the “Stockholders’ Agreement”), a true, correct and complete copy of which has been delivered to Us prior to the issuance of this Warrant, Your stockholders do not have preemptive rights to purchase new issuances of Your capital stock.

Þ Other Commitments to Register Securities. Except as set forth in this Warrant Agreement and the Registration Rights Agreement, You are not, pursuant to the terms of any other agreement currently in existence, under any obligation to register under the 1933 Act any of Your presently outstanding securities or any of Your securities which may hereafter be issued.

Þ Exempt Transaction. Subject to the accuracy of Our representations in Section 7 hereof, the issuance of the Warrant Stock upon exercise of this Warrant Agreement will constitute a transaction exempt from (i) the registration requirements of Section 5 of the 1933 Act, in reliance upon Section 4(2) thereof, and (ii) the qualification requirements of the applicable state securities laws.

Þ Compliance with Rule 144. We may sell the Warrant Stock issuable hereunder in compliance with Rule 144 promulgated by the Securities and Exchange Commission, subject to the lock-up agreement in Section 7 and the satisfaction of the requirements of Rule 144. Beginning on the expiration of the lock-up agreement in Section 7 and so long as You remain subject to the periodic reporting requirements under Section 13 or 15(d) of the 1933 Act, within ten (10) days of Our request, You agree to furnish Us, a written statement confirming Your compliance with the filing requirements of the Securities and Exchange Commission as set forth in such Rule 144, as may be amended.

Þ No Impairment. You agree not to, by amendment of Your Certificate of Incorporation or through a reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms to be observed or performed under this Warrant by You, but shall at all times in good faith assist in carrying out of all the provisions of this Warrant and in taking all such action as may be necessary or appropriate to protect Our rights under this Warrant against impairment. However, You shall not be deemed to have impaired Our rights if You amend Your Certificate of Incorporation, or the holders of Your preferred stock waive their rights thereunder, in a manner that does not (individually or when considered in the context of any other actions being taken in connection with such amendments or waivers) affect Us in a manner different from the effect that such amendments or waivers have on the rights of other holders of the same series and class as the Warrant Stock.

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7. OUR REPRESENTATIONS AND COVENANTS TO YOU.

Þ Investment Purpose. The right to acquire Warrant Stock or the Warrant Stock issuable upon exercise of Our rights contained herein and the Common Stock issuable upon conversion will be acquired for investment purposes and not with a view to the sale or distribution of any part thereof, and We have no present intention of selling or engaging in any public distribution of the same in violation of the 1933 Act.

Þ Private Issue. We understand (i) that this Warrant Agreement, the Warrant Stock issuable upon exercise of this Warrant Agreement and the Common Stock issuable upon conversion of the Warrant Stock are not registered under the 1933 Act or qualified under applicable state securities laws on the ground that the issuance contemplated by this Warrant Agreement will be exempt from the registration and qualifications requirements thereof, and (ii) that Your reliance on such exemption is predicated on the representations set forth in this Section 7.

Þ Disposition of Our Rights. In no event will We make a disposition of any of Our rights to acquire Warrant Stock or Warrant Stock issuable upon exercise of such rights or the Common Stock issuable upon conversion of the Warrant Stock unless and until (i) We shall have notified You in writing of the proposed disposition, and (ii) the transferee agrees to be bound in writing to the applicable terms and conditions of this Warrant Agreement, and (iii) if You request, We shall have furnished You with an opinion of counsel satisfactory to You and Your counsel to the effect that (A) appropriate action necessary for compliance with the 1933 Act has been taken, or (B) an exemption from the registration requirements of the 1933 Act is available. Notwithstanding the foregoing, the restrictions imposed upon the transferability of any of Our rights to acquire Warrant Stock or Warrant Stock issuable on the exercise of such rights or the Common Stock issuable upon conversion of the Warrant Stock do not apply to transfers from the beneficial owner of any of the aforementioned securities to its nominee or from such nominee to its beneficial owner, and shall terminate as to any particular share of Warrant Stock when (1) such security shall have been effectively registered under the 1933 Act and sold by the holder thereof in accordance with such registration or (2) such security shall have been sold without registration in compliance with Rule 144 under the 1933 Act, or (3) a letter shall have been issued to You at Our request by the staff of the Securities and Exchange Commission or a ruling shall have been issued to the You at Our request by such Commission stating that no action shall be recommended by such staff or taken by such Commission, as the case may be, if such security is transferred without registration under the 1933 Act in accordance with the conditions set forth in such letter or ruling and such letter or ruling specifies that no subsequent restrictions on transfer are required. Whenever the restrictions imposed hereunder shall terminate, as hereinabove provided, the holder of a share of Warrant Stock then outstanding as to which such restrictions have terminated shall be entitled to receive from You, without expense to such holder, one or more new certificates for the Warrant or for such shares of Warrant Stock not bearing any restrictive legend referring to 1933 Act registration or exemption.

Þ Financial Risk. We have such knowledge and experience in financial and business matters and knowledge of Your business affairs and financial condition as to be capable of evaluating the merits and risks of Our investment, and have the ability to bear the economic risks of Our investment.

Þ Risk of No Registration. We understand that if You do not register with the Securities and Exchange Commission pursuant to Section 12 of the 1934 Act (the “1934 Act”), or file reports pursuant to Section 15(d), of the 1934 Act, or if a registration statement covering the securities under the 1933 Act is not in effect when We desire to sell (i) the rights to purchase Warrant Stock pursuant to this Warrant Agreement, or (ii) the Warrant Stock issuable upon exercise of the right to purchase, or (iii) the Common Stock issuable upon conversion of the Warrant Stock, We may be required to hold such securities for an indefinite period. We also understand that any sale of Our right to purchase Warrant Stock or Warrant Stock or Common Stock issuable upon conversion of the Warrant Stock, which might be made by it in reliance upon Rule 144 under the 1933 Act may be made only in accordance with the terms and conditions of that Rule.

Þ Accredited Investor. We are an “accredited investor” within the meaning of the Securities and Exchange Rule 501 of Regulation D of the 1933 Act, as presently in effect.

Þ Domicile. Our domicile for purposes of state securities laws is in the State of California.

Þ Lock-Up Agreement. In consideration for You agreeing to Your obligations under this Warrant Agreement, We and each of Our transferees agrees, in connection with the first registration of Your securities under the 1933 Act, upon Your request or the request of the underwriters managing any underwritten offering of Your securities, not to (a) lend,

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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 Us or are thereafter acquired) or (b) 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 (a) or (b) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise, without Your prior written consent or the prior written consent of such underwriters, as the case may be, for such period of time (not to exceed 180 days or such other period as may be requested by You or the underwriters to accommodate regulatory restrictions on (i) the publication or other distribution of research reports and (ii) analyst recommendations and opinions, including, but not limited to, the restrictions contained in NASD Rule 2711(f)(4) or NYSE Rule 472(f)(4), or any successor provisions or amendments thereto) from the effective date of such registration as You or the underwriters may specify; provided, however, that all (x) Your officers and directors and (y) Your stockholders holding three percent (3%) or more of Your total outstanding Common Stock (treating all Your convertible, exercisable and exchangeable securities on an as-if converted to Common Stock basis) are bound by agreements that are no less restrictive. The underwriters in connection with Your initial public offering are intended third party beneficiaries of this Lock-Up Agreement and shall have the right, power and authority to enforce the provisions hereof as though they were a party hereto. We agree that You may instruct Your transfer agent to place stop-transfer notations in its records to enforce the provisions of this Lock-Up Agreement until the end of such period.

8. NOTICES YOU AGREE TO PROVIDE US.

You agree to give Us at least twenty (20) days prior written notice of the following events:

Þ If You Pay a Dividend or distribution declaration upon your stock.

Þ If You offer for subscription pro-rata to the existing shareholders additional stock or other rights (except for an offering made pursuant to Your Stockholders’ Agreement

Þ If You consummate a Merger Event.

Þ If You have an IPO.

Þ If You dissolve or liquidate.

All notices in this Section must set forth details of the event, how the event adjusts either Our number of shares or Our Exercise Price and the method used for such adjustment.

Timely Notice. Your failure to timely provide such notice required above shall entitle Us to retain the benefit of the applicable notice period notwithstanding anything to the contrary contained in any insufficient notice received by Us.

9. DOCUMENTS YOU WILL PROVIDE US.

Upon signing this Agreement You will provide Us with:

Þ Executed originals of this Agreement, and all other documents and instruments that We may reasonably require

Þ Secretary’s certificate of incumbency and authority

Þ Certified copy of resolutions of Your board of directors approving this Warrant Agreement

Þ Certified copy of Certificate of Incorporation and By-Laws as amended through the Effective Date

Þ Current Registration Rights Agreement

So long as this Warrant Agreement is in effect, You shall provide Us with the following:

Þ You shall submit to Us information that We may reasonably request from time to time in order to satisfy the reasonable requests of our independent accounting firm in connection with the audit of the fair market value of this Warrant Agreement recorded in Our books and records, including but not limited to a written certification by the Company or its advisors of the current fair market value of the Warrant Stock or Your capital stock and shall include information supporting the reasonableness of the fair market value indicated by such certification.

Þ You shall submit to Us any documents and information that We may reasonably request from time to time and are necessary to implement the provisions and purposes of this Warrant Agreement.

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10. REGISTRATION RIGHTS UNDER THE 1933 ACT.

The shares of Your common stock into which the Warrant Stock is convertible shall have “piggyback” and “Form S-3” registration rights as set forth in the Registration Rights Agreement, dated as of October 29, 2010 (as amended, the “Registration Rights Agreement”).

11. OTHER LEGAL PROVISIONS THE PARTIES WILL ABIDE BY.

Effective Date. This Warrant Agreement shall be construed and shall be given effect in all respects as if it had been executed and delivered by the Parties on the date hereof. This Warrant Agreement shall be binding upon any of the successors or assigns of the Parties.

Attorney’s Fees. In any litigation, arbitration or court proceeding between the Parties relating to this Warrant Agreement, the prevailing party shall be entitled to attorneys’ fees and expenses and all costs of proceedings incurred in enforcing this Warrant Agreement.

Governing Law. This Warrant Agreement shall be governed by and construed for all purposes under and in accordance with the laws of the State of California without giving effect to that body of law pertaining to conflicts of laws.

Consent to Jurisdiction and Venue. All judicial proceedings arising in or under or related to this Warrant Agreement may be brought in any state or federal court of competent jurisdiction located in the State of California. By execution and delivery of this Warrant Agreement, each party hereto generally and unconditionally: (a) consents to personal jurisdiction in San Mateo County, State of California; (b) waives any objection as to jurisdiction or venue in San Mateo County, State of California; (c) agrees not to assert any defense based on lack of jurisdiction or venue in the aforesaid courts; and (d) irrevocably agrees to be bound by any judgment rendered thereby in connection with this Warrant Agreement. Service of process on any party hereto in any action arising out of or relating to this agreement shall be effective if given in accordance with the requirements for notice set forth in this Section, and shall be deemed effective and received as set forth therein. Nothing herein shall affect the right to serve process in any other manner permitted by law or shall limit the right of either party to bring proceedings in the courts of any other jurisdiction.

Mutual Waiver of Jury Trial; Judicial Reference. Because disputes arising in connection with complex financial transactions are most quickly and economically resolved by an experienced and expert person and the Parties wish applicable state and federal laws to apply (rather than arbitration rules), The Parties desire that their disputes be resolved by a judge applying such applicable laws. EACH OF THE PARTIES SPECIFICALLY WAIVES ANY RIGHT THEY MAY HAVE TO TRIAL BY JURY OF ANY CAUSE OF ACTION, CLAIM, CROSS-CLAIM, COUNTERCLAIM, THIRD PARTY CLAIM OR ANY OTHER CLAIM (COLLECTIVELY, “CLAIMS”) ASSERTED BY YOU AGAINST US OR OUR ASSIGNEE OR BY US OR OUR ASSIGNEE AGAINST YOU. IN THE EVENT THAT THE FOREGOING JURY TRIAL WAIVER IS NOT ENFORCEABLE, ALL CLAIMS, INCLUDING ANY AND ALL QUESTIONS OF LAW OR FACT RELATING THERETO, SHALL, AT THE WRITTEN REQUEST OF ANY PARTY, BE DETERMINED BY JUDICIAL REFERENCE PURSUANT TO THE CALIFORNIA CODE OF CIVIL PROCEDURE (“REFERENCE”), THE PARTIES SHALL SELECT A SINGLE NEUTRAL REFEREE, WHO SHALL BE A RETIRED STATE OR FEDERAL JUDGE. IN THE EVENT THAT THE PARTIES CANNOT AGREE UPON A REFEREE, THE REFEREE SHALL BE APPOINTED BY THE COURT. THE REFEREE SHALL REPORT A STATEMENT OF DECISION TO THE COURT. NOTHING IN THIS SECTION SHALL LIMIT THE RIGHT OF ANY PARTY AT ANY TIME TO EXERCISE LAWFUL SELF-HELP REMEDIES, FORECLOSE AGAINST COLLATERAL OR OBTAIN PROVISIONAL REMEDIES. THE PARTIES SHALL BEAR THE FEES AND EXPENSES OF THE REFEREE EQUALLY UNLESS THE REFEREE ORDERS OTHERWISE. THE REFEREE SHALL ALSO DETERMINE ALL ISSUES RELATING TO THE APPLICABILITY, INTERPRETATION, AND ENFORCEABILITY OF THIS SECTION. THE PARTIES ACKNOWLEDGE THAT THE CLAIMS WILL NOT BE ADJUDICATED BY A JURY. This waiver extends to all such Claims, including Claims that involve Persons other than You and Us; Claims that arise out of or are in any way connected to the relationship between You and Us; and any Claims for damages, breach of contract, specific performance, or any equitable or legal relief of any kind, arising out of this Warrant Agreement.

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Counterparts. This Warrant Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

Notices. Any notice required or permitted under this Warrant Agreement shall be given in writing and shall be deemed effectively given upon the earlier of (1) actual receipt or 3 days after mailing if mailed postage prepaid by regular or airmail to Us or You or (2) one day after it is sent by overnight mail via nationally recognized courier or (3) on the same day as sent via confirmed facsimile transmission, provided that the original is sent by personal delivery or mail by the sending party.

Remedies. In the event of any default hereunder, the non-defaulting party may proceed to protect and enforce its rights either by suit in equity and/or by action at law, including but not limited to an action for damages as a result of any such default, and/or an action for specific performance for any default where such party will not have an adequate remedy at law and where damages will not be readily ascertainable. Each party expressly acknowledges and agrees that there is no adequate remedy at law for any breach of this Warrant Agreement and that in the event of any breach of this Agreement, the injured party shall be entitled to specific performance of any or all provisions hereof or an injunction prohibiting the other party from continuing to commit any such breach of this Agreement.

Survival. The representations, warranties, covenants, and conditions of the Parties contained herein or made pursuant to this Warrant Agreement shall survive the execution and delivery of this Warrant Agreement.

Severability. In the event any one or more of the provisions of this Warrant Agreement shall for any reason be held invalid, illegal or unenforceable, the remaining provisions of this Warrant Agreement shall be unimpaired, and the invalid, illegal or unenforceable provision shall be replaced by a mutually acceptable valid, legal and enforceable provision, which comes closest to the intention of the Parties underlying the invalid, illegal or unenforceable provision.

Entire Agreement. This Warrant Agreement constitutes the entire agreement between the Parties pertaining to the subject matter contained in it and supersedes all prior and contemporaneous agreements, representations and undertakings of the Parties, whether oral or written, with respect to such subject matter.

Amendments. Any provision of this Warrant Agreement may only be amended by a written instrument signed by the Parties.

Lost Warrants or Stock Certificates. You covenant to Us that, upon receipt of evidence reasonably satisfactory to Us of the loss, theft, destruction or mutilation of this Warrant Agreement or any stock certificate and, in the case of any such loss, theft or destruction, upon receipt of an indemnity reasonably satisfactory to You, or in the case of any such mutilation upon surrender and cancellation of such Warrant Agreement or stock certificate, You will make and deliver a new Warrant Agreement or stock certificate, of like tenor, in lieu of the lost, stolen, destroyed or mutilated Warrant Agreement or stock certificate.

Rights as Stockholders. We shall not, as a party to this Warrant Agreement, be entitled to vote or receive dividends or be deemed the holder of the Warrant Stock or any of Your other securities which may at any time be issuable upon the exercise hereof for any purpose, nor shall anything contained herein be construed to confer upon Us any of the rights of one of Your stockholders or any right to vote for the election of directors or upon any matter submitted to stockholders at any meeting thereof, or to receive dividends or subscription rights or otherwise until this Warrant Agreement is exercised and the shares purchasable upon the exercise hereof shall have become deliverable, as provided herein.

Facsimile Signatures. This Warrant Agreement may be executed and delivered by facsimile and upon such delivery the facsimile signature will be deemed to have the same effect as if the original signature had been delivered to the other party.

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IN WITNESS WHEREOF, each of the Parties have caused this Warrant Agreement to be executed by its officers who are duly authorized as of the Effective Date.

You:	BLOOM ENERGY CORPORATION
Signature:	/s/ William H. Kurtz
Print Name:	William H. Kurtz
Title:	CFO
Us:	TRIPLEPOINT CAPITAL LLC
Signature:	/s/ Sajal Srivastava
Print Name:	Sajal Srivastava
Title:	Chief Operating Officer

[SIGNATURE PAGE TO WARRANT AGREEMENT 0674-W-01]

EXHIBIT I

NOTICE OF EXERCISE

To: [                    ]

1. We hereby elect to purchase [                ] shares of the Series [                ] Preferred Stock of [                ], pursuant to the terms of the Plain English Warrant Agreement dated the [    ] day of [            ], [200    ] (the “Plain English Warrant Agreement”) between You and Us, We hereby tender here payment of the purchase price for such shares in full, together with all applicable transfer taxes, if any.

2. Method of Exercise (Please initial the applicable blank)

a.                  The undersigned elects to exercise the Plain English Warrant Agreement by means of a cash payment, and gives You full payment for the purchase price of the shares being purchased, together with all applicable transfer taxes, if any.

b.                  The undersigned elects to exercise the Plain English Warrant Agreement by means of the Net Issuance Exercise method of Section 3 of the Plain English Warrant Agreement.

3. In exercising Our rights to purchase the Series [                ] Preferred Stock of [                    ], We hereby confirm and acknowledge the investment representations, warranties and covenants made in Section 7 of the Plain English Warrant Agreement.

Please issue a certificate or certificates representing these purchased shares of Series [                ] Preferred Stock in Our name or in such other name as is specified below.

(Name)
(Address)
US:	TRIPLEPOINT CAPITAL LLC
By:
Title:
Date:

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EXHIBIT II

ACKNOWLEDGMENT OF EXERCISE

[                                         ], hereby acknowledges receipt of the “Notice of Exercise” from TRIPLEPOINT CAPITAL LLC, to purchase [                ] shares of the Series [                ] Preferred Stock of [                    ], pursuant to the terms of the Plain English Warrant Agreement, and further acknowledges that [                ] shares remain subject to purchase under the terms of the Plain English Warrant Agreement.

YOU:
	By:
	Title:
	Date:

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EXHIBIT III

TRANSFER NOTICE

FOR VALUE RECEIVED, the foregoing Plain English Warrant Agreement and all rights evidenced thereby are hereby transferred and assigned to

(Please Print)

Whose address is

Dated:

Holder’s Signature:

Holder’s Address:

Transferee’s Signature:

Transferee’s Address:

Signature Guaranteed:

NOTE: The signature to this Transfer Notice must correspond with the name as it appears on the face of the Plain English Warrant Agreement, without alteration or enlargement or any change whatever. Officers of corporations and those acting in a fiduciary or other representative capacity should file proper evidence of authority to assign the foregoing Plain English Warrant Agreement.

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EX-4

Exhibit 4.10

THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE HEREUNDER HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 AS AMENDED (the “1933 ACT”), OR ANY STATE SECURITIES LAWS. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED, OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO YOU THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE 1933 ACT, OR ANY APPLICABLE STATE SECURITIES LAWS.

AMENDED AND RESTATED PLAIN ENGLISH WARRANT AGREEMENT

This is a AMENDED AND RESTATED PLAIN ENGLISH WARRANT AGREEMENT dated December 15, 2011 by and between BLOOM ENERGY CORPORATION, a Delaware corporation, and TRIPLEPOINT CAPITAL LLC, a Delaware limited liability company.

The words “We”, “Us”, or “Our” refer to the warrant holder, which is TRIPLEPOINT CAPITAL LLC. The words “You” or “Your” refers to the issuer, which is BLOOM ENERGY CORPORATION, and not to any individual. The words “the Parties” refers to both TRIPLEPOINT CAPITAL LLC and BLOOM ENERGY CORPORATION. This Amended and Restated Plain English Warrant Agreement may be referred to as the “Warrant Agreement”.

RECITALS

WHEREAS, the Parties have entered into a Plain English Warrant Agreement (0674-W-01) dated as of December 31, 2010 (the “Original Warrant”);

WHEREAS, the Parties have entered into a Plain English Master Lease Agreement dated as of December 31, 2010, and related Software or Hardware Facility Schedules and Summary Schedules which are collectively referred to in this Warrant Agreement as the “Lease Agreement”.

WHEREAS, the Parties have agreed to transfer the commitment amounts under the Lease Agreement to an equipment loan agreement (the “Transfer”) as set forth in that certain Plain English Equipment Loan and Security Agreement dated as of December 15, 2011 by and between the Parties (the “Loan Agreement”)

WHEREAS, in accordance with Section 11 of the Original Warrant, any provision of the Original Warrant may be amended by a written instrument signed by the Parties; and

WHEREAS, the Parties hereby desire to amend and restated the Original Warrant to give effect to the Transfer and wish to do so on the terms and conditions set forth herin.

In consideration of the Parties continuing performance and obligations under the Loan Agreement and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree to the following mutual agreements and conditions set forth below:

WARRANT INFORMATION
Effective Date December 31,2010	Warrant Number 0674-W-01	Lease Facility Schedules 0674-LE-01H/-01S

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Warrant Coverage	Number of Shares	Price Per Share	Type of Stock
$300,000 (3% of $10,000,000); additional warrant coverage as set forth in Section 1.	16,198; plus additional shares as set forth in Section 1. The Number of Shares is subject to adjustment as set forth in this Warrant Agreement.	$18.52 subject to adjustment as set forth in this Warrant Agreement	Series F Preferred Stock; subject to the provisions of Section 1.

OUR CONTACT INFORMATION
Name TriplePoint Capital LLC	Address For Notices 2755 Sand Hill Road, Ste. 150 Menlo Park, CA 94025 Tel: (650) 854-2090 Fax: (650) 854-1850	Contact Person Sajal Srivastava, COO Tel: (650) 233-2102 Fax: (650) 854-1850 email: legal@triplepointcapital.com
YOUR CONTACT INFORMATION
Customer Name Bloom Energy Corporation	Address For Notices 1252 Orleans Drive Sunnyvale, CA 94089	Contact Person William Kurtz, CFO Tel: (408) 543-1550 Fax: (408) 543-1501 email: wkurtz@bloomenergy.com

1. WHAT YOU AGREE TO GRANT US

You grant to Us and We are entitled, upon the terms and subject to the conditions set forth in this Warrant Agreement, to purchase from You, at a price per share equal to the Exercise Price, that number of fully paid and non-assessable shares of Your Warrant Stock equal to Three Hundred Thousand Dollars ($300,000), divided by the Exercise Price (rounded down to the nearest whole share).

In addition, You grant to Us and We are entitled, upon the terms and subject to the conditions set forth in this Warrant Agreement, to purchase from You, at a price per share equal to the Exercise Price, an additional number of fully paid and non-assessable shares of Your Warrant Stock (rounded down to the nearest whole share) equal to:

Þ one-half percent (0.5%) of any amounts advanced under Part 1 of the Loan Agreement, divided by the Exercise Price, if You choose Option B for such Advance under the Loan Agreement; or

Þ one percent (1.0%) of any amounts advanced under Part 1 of the Loan Agreement, divided by the Exercise Price, if You choose Option C for such Advance under the Loan Agreement.

The number of shares of Warrant Stock and the Exercise Price of such Warrant Stock are subject to adjustment as provided in Section 4 hereof.

For purposes of this Warrant Agreement, the following capitalized terms have the meanings given below:

“Exercise Price” means the lower of (a) $18.52 and (b) the lowest per share price for which Your preferred stock is sold in the Next Round.

“Next Round” means the next bona fide round of equity financing in which You issue and sell shares of your preferred stock for aggregate gross cash proceeds of at least $1,000,000 (excluding any amounts received upon conversion or cancellation of indebtedness) subsequent to the Effective Date.

“Warrant Stock” means (a) the class and series of Your preferred stock issued in the Next Round, if the lowest per share price for which such preferred stock is sold in the Next Round is less than $18.52, or (b) in all other cases, Your Series F Preferred Stock. For avoidance of doubt, if this Warrant Agreement is exercised prior to the Next Round then this Warrant Agreement shall be exercisable for Your Series F Preferred Stock.

The Parties agree that this Warrant Agreement to purchase the Warrant Stock has a fair market value equal to $100 and that $100 of the issue price of the investment will be allocable to the Warrant Agreement and the balance shall be allocable to the Loan Agreement for income tax purposes and the original issue discount on the Loan Agreement shall be considered to be zero.

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2. WHEN ARE WE ENTITLED TO PURCHASE YOUR WARRANT STOCK.

The term of this Warrant Agreement and our right to purchase Warrant Stock will begin on the Effective Date, and shall be available for a period often (10) years up to and including December 31, 2020.

Notwithstanding the foregoing, Our right to purchase the Warrant Stock shall be automatically and fully exercised via the net issuance method described below (without surrender of the Warrant Agreement) upon the occurrence of a Merger Event, as defined below, with a Person that is not one of Your affiliates, in which Your common stock is exchanged for cash and/or stock that is traded on a recognized public exchange or on the NASDAQ National Market, provided that, upon consummation of the Merger Event, the consideration payable to Us pursuant to such exercise and on account of the Warrant Stock consists of (i) cash or (ii) stock that is traded on a recognized public exchange or on the NASDAQ National Market. No less than ten (10) business days prior to any Merger Event, You shall provide Us with written notice of the proposed Merger Event together with a copy of the executed merger agreement, or other definitive documentation (and all schedules and exhibits thereto) and information concerning Your expected capitalization immediately prior to the Merger Event. Upon consummation of the Merger Event, You shall promptly provide Us with (a) a copy of any modifications or amendments to the executed merger agreement, (b) any other documents in connection therewith, (c) updated information, if any, concerning Your capitalization immediately prior to the Merger Event, and, (d) upon request, by Us any other information reasonably necessary to an informed evaluation of Our rights under this Agreement.

3. HOW WE MAY PURCHASE YOUR WARRANT STOCK.

We may exercise Our purchase rights, in whole or in part, at any time, or from time to time, prior to the expiration of the term of this Warrant Agreement, by giving You a completed and executed Notice of Exercise in the form attached as Exhibit I. Promptly upon receipt of the Notice of Exercise and in any event no later than twenty-one (21) days after you have received Our Notice of Exercise and payment of the aggregate Exercise Price for the shares purchased, You will issue to Us a certificate for the number of shares of Warrant Stock that We have purchased and You will execute the Acknowledgment of Exercise in the form attached hereto as Exhibit II indicating the number of shares which will be available to Us for future purchases, if any.

We may pay for the Warrant Stock by either (i) cash or check, or (ii) by the net issuance method as determined below. If We elect the Net Issuance method, You will issue Warrant Stock using the following formula:

X = Y(A-B)

A

Where:	X =	the number of shares of Warrant Stock to be issued to Us.
	Y =	the number of shares of Warrant Stock We request to be exercised under this Warrant Agreement.
	A =	the fair market value of one share of Warrant Stock.
	B =	the Exercise Price.

For purposes of the above calculation, current fair market value of Warrant Stock shall mean with respect to each share of Warrant Stock:

If the exercise is in connection with the initial public offering of Your Common Stock, and if Your registration statement relating to such public offering has been declared effective by the SEC, then the fair market value per share shall be the product of (x) the initial “Price to Public” specified in the final prospectus of the offering and (y) the number of shares of Common Stock into which each share of Warrant Stock is convertible at the time of such exercise;

If this Warrant Agreement is exercised after, and not in connection with Your initial public offering, and:

Þ if traded on a securities exchange, the fair market value shall be the product of (x) the average of the closing prices over a five (5) day period ending three (3) days before the day the current fair market value of the securities is being determined and (y) the number of shares of Common Stock into which each share of Warrant Stock is convertible at the time of such exercise; or

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Þ if actively traded over-the-counter, the fair market value shall be the product of (x) the average of the closing bid and asked prices quoted on the NASDAQ system (or similar system) over the five (5) day period ending three (3) days before the day the current fair market value of the securities is being determined and (y) the number of shares of Common Stock into which each share of Warrant Stock is convertible at the time of such exercise.

If this Warrant Agreement is exercised prior to or after Your initial public offering, and:

Þ Your Common Stock is not listed on any securities exchange or the over-the-counter market, the current fair market value of Warrant Stock shall be the product of (x) the fair market value of a share of Your Common Stock (the highest price per share which You could obtain from a willing buyer (not a current employee or director) for shares of Common Stock sold, from authorized but unissued shares), as determined in good faith by Your Board of Directors and (y) the number of shares of Common Stock into which each share of Warrant Stock is convertible at the time of such exercise, unless You shall become subject to a merger, acquisition or other consolidation pursuant to which You are not the surviving party, in which case the fair market value of Warrant Stock shall be deemed to be the value received by the holders of Your Warrant Stock on a common equivalent basis pursuant to such merger or acquisition or other consolidation.

During the term of this Warrant Agreement, You will at all times from and after the Effective Date have authorized and reserved a sufficient number of shares of (a) Warrant Stock to provide for the exercise of our rights to purchase Warrant Stock, and (b) Common Stock to provide for the conversion of the Warrant Stock.

If We elect to exercise part of the Warrant Agreement, You will promptly issue to Us an amended Warrant Agreement stating the remaining number of shares that are available. All other terms and conditions of that amended Warrant Agreement shall be identical to those contained in this Warrant Agreement.

If at the end of the term of this Warrant Agreement, the fair market value of one share of Warrant Stock (or other security issuable upon the exercise hereof) as determined in accordance herewith is greater than the Exercise Price in effect on such date, then this Warrant Agreement shall automatically be deemed on and as of such date to be converted pursuant hereto as to all shares of Warrant Stock (or such other securities) for which it shall not previously have been exercised or converted, and You shall promptly deliver a certificate representing the shares of Warrant Stock (or such other securities) issued upon such conversion to Us.

4. WHEN WILL THE NUMBER OF SHARES AND EXERCISE PRICE CHANGE.

Þ If You are Acquired. If at any time: (i) there is a reorganization of Your stock (other than a reclassification, exchange or subdivision of Your stock otherwise provided for in this Warrant Agreement); (ii) You merge or consolidate with or into another entity, whether or not You are the surviving entity; or (iii) there occurs any transaction or series of related transactions that result in the transfer of fifty percent (50%) or more of the outstanding voting power of the capital stock of You (each of the foregoing events are referred to as a “Merger Event”), then, as a part of such Merger Event, lawful provision shall be made so that We shall thereafter be entitled to receive, upon exercise of Our rights under this Warrant Agreement, the number of shares of preferred stock or other securities of the successor or surviving person resulting from such Merger Event, equal in value to that which would have been issuable if We had exercised Our rights under this Warrant Agreement immediately prior to the Merger Event. In any such case, appropriate adjustment (as determined in good faith by Your Board of Directors) shall be made in the application of the provisions of this Warrant Agreement with respect to Our rights and interest after the Merger Event so that the provisions of this Warrant Agreement (including adjustments of the Exercise Price and number of shares of Warrant Stock purchasable) shall be applicable to the greatest extent possible.

Þ If You Reclassify Your Stock. If at any time You combine, reclassify (including by conversion of outstanding preferred stock), exchange or subdivide Your securities or otherwise, change any of the securities as to which purchase rights under this Warrant Agreement exist into the same or a different number of securities of any other class or classes, this Warrant Agreement will thereafter represent the right to acquire such number and kind of securities as would have been issuable as the result of such change with respect to the securities which were subject to the purchase rights under this Warrant Agreement immediately prior to such combination, reclassification, exchange, subdivision or other change.

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Þ If You Subdivide or Combine Your Shares. If at any time You combine or subdivide the Warrant Stock, the Exercise Price will be proportionately decreased in the case of a subdivision, or proportionately increased in the case of a combination.

Þ If You Pay Stock Dividends. If at any time You pay a dividend payable in, or make any other distribution (except any distribution specifically provided for in the above paragraphs) of the Warrant Stock, then the Exercise Price shall be adjusted, from and after the record date of such dividend or distribution, to that price determined by multiplying the Exercise Price in effect immediately prior to such record date by a fraction (i) the numerator of which shall be the total number of all shares of the Warrant Stock outstanding immediately prior to such dividend or distribution, and (ii) the denominator of which shall be the total number of all shares of the Warrant Stock outstanding immediately after such dividend or distribution. We will thereafter be entitled to purchase, at the Exercise Price resulting from such adjustment, the number of shares of Warrant Stock (rounded down to the nearest whole share) obtained by multiplying the Exercise Price in effect immediately prior to such adjustment by the number of shares of Warrant Stock issuable upon the exercise hereof immediately prior to such adjustment and dividing the product thereof by the Exercise Price resulting from such adjustment.

Þ If You Change the Antidilution Rights of the Warrant Stock or Issue New Preferred or Convertible Stock. All antidilution rights applicable to the Warrant Stock purchasable under this Warrant Agreement are as set forth in Your Certificate of Incorporation, as amended through the Effective Date. You will promptly provide Us with any restatement, amendment, modification of or waiver of any right related to the Warrant Stock under Your Certificate of Incorporation. You will provide Us with written notice of any issuance of Your stock or other equity security to occur after the Effective Date (other than issuances of stock or equity securities pursuant to customary employee stock plans) that triggers the antidilution rights applicable to the Warrant Stock, which notice shall include (a) the price at which such stock or security was sold, (b) the number of shares issued, and (c) such other information as necessary for Us to determine that a dilutive event has occurred as a result of such issuance.

5. WE CAN TRANSFER THIS PLAIN ENGLISH WARRANT AGREEMENT.

Subject to the terms and conditions contained in Section 7, We (or any successor transferee) may transfer in whole or in part this Warrant Agreement and all its rights. We agree not to transfer this Warrant Agreement to a competitor of You as determined in good faith by Your board of directors. You will record the transfer on Your books when You receive Our Notice of Transfer in the form attached hereto as Exhibit III, and Our payment of all transfer taxes and other governmental charges involved in such transfer.

6. REPRESENTATIONS, WARRANTIES, AND COVENANTS FROM YOU.

Þ Reservation of Warrant Stock. The Warrant Stock issuable upon exercise of Our rights under this Warrant Agreement will be duly and validly reserved and when issued in accordance with the provisions of this Warrant Agreement will be validly issued, fully paid and non-assessable, and will be free of any taxes, liens, charges or encumbrances of any nature whatsoever; provided, however, that the Warrant Stock issuable pursuant to this Warrant Agreement may be subject to restrictions on transfer under state and/or Federal securities laws or the Registration Rights Agreement. Upon Our exercise, You will issue to Us certificates for shares of Warrant Stock without charging Us any tax (except as may be required by applicable law), or other cost incurred by You in connection with such exercise and the related issuance of shares of Warrant Stock. You will not be required to pay any tax, which may be payable in respect of any transfer involved and the issuance and delivery of any certificate in a name other than TriplePoint Capital LLC.

Þ Due Authority. Your execution and delivery of this Warrant Agreement and the performance of Your obligations hereunder, including the issuance to Us of the right to acquire the shares of Warrant Stock, have been duly authorized by all necessary corporate action on Your part and this Warrant Agreement is not inconsistent with Your Certificate of Incorporation or Bylaws, does not contravene any law or governmental rule, regulation or order applicable to it, do not and will not contravene any provision of, or constitute a default under, any indenture, mortgage, contract or other instrument to which You are a party or by which You are bound, and this Warrant Agreement constitutes a legal, valid and binding agreement, enforceable in accordance with its respective terms, subject to laws of general application relating to bankruptcy, insolvency and the relief of debtors and the rules of law or principles at equity governing specific performance, injunctive relief and other equitable remedies.

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Þ Consents and Approvals. No consent or approval of, giving of notice to, registration with, or taking of any other action in respect of any state, Federal or other governmental authority or agency is required with respect to execution, delivery and Your performance of Your obligations under this Warrant Agreement, except for the filing of any required notices pursuant to Federal and state securities laws, which filings will be effective by the times required thereby.

Þ Issued Securities. All of Your issued and outstanding shares of Common Stock, Warrant Stock or any other securities have been duly authorized and validly issued and are fully paid and nonassessable. All outstanding shares of Common Stock and Warrant Stock were issued in full compliance with all Federal and state securities laws. In addition as of the Effective Date:

Your authorized capital consists of (i) 105,608,000 shares of Common Stock, of which 12,027,455 shares of Common Stock are issued and outstanding, (ii) 14,100,000 shares of Series A Preferred Stock, of which 13,650,000 shares are issued and outstanding, (iii) 12,150,000 shares of Series B Preferred Stock, of which 11,803,284 shares are issued and outstanding, (iv) 9,000,000 shares of Series C Preferred Stock, of which 8,968,604 shares are issued and outstanding, (v) 10,700,000 shares of Series D Preferred Stock, of which 9,481,998 shares are issued and outstanding, (vi) 16,500,000 shares of Series E Preferred Stock, of which 11,342,180 shares are issued and outstanding, and (vii) 19,908,000 shares of Series F Preferred Stock, of which 18,061,055 shares are issued and outstanding.

You have reserved 14,493,334 shares of Common Stock for issuance under Your Stock Incentive Plan, under which 7,264,503 options have been granted and are currently outstanding. You have warrants outstanding to purchase up to 424,342 shares of Series A Preferred Stock, 183,748 shares of Series D Preferred Stock, 4,468,854 shares of Series E Preferred Stock and 263,261 shares of Series F Preferred Stock. Except as otherwise provided in this Warrant Agreement and as noted above, there are no other options, warrants, conversion privileges or other rights presently outstanding to purchase or otherwise acquire any authorized but unissued shares of Your capital stock or other of Your securities.

Except as set forth in Your Eighth Amended and Restated Stockholders’ Rights Agreement dated as of October 29, 2010 (the “Stockholders’ Agreement”), a true, correct and complete copy of which has been delivered to Us prior to the issuance of this Warrant, Your stockholders do not have preemptive rights to purchase new issuances of Your capital stock.

Þ Other Commitments to Register Securities. Except as set forth in this Warrant Agreement and the Registration Rights Agreement, You are not, pursuant to the terms of any other agreement currently in existence, under any obligation to register under the 1933 Act any of Your presently outstanding securities or any of Your securities which may hereafter be issued.

Þ Exempt Transaction. Subject to the accuracy of Our representations in Section 7 hereof, the issuance of the Warrant Stock upon exercise of this Warrant Agreement will constitute a transaction exempt from (i) the registration requirements of Section 5 of the 1933 Act, in reliance upon Section 4(2) thereof, and (ii)the qualification requirements of the applicable state securities laws.

Þ Compliance with Rule 144. We may sell the Warrant Stock issuable hereunder in compliance with Rule 144 promulgated by the Securities and Exchange Commission, subject to the lock-up agreement in Section 7 and the satisfaction of the requirements of Rule 144. Beginning on the expiration of the lock-up agreement in Section 7 and so long as You remain subject to the periodic reporting requirements under Section 13 or 15(d) of the 1933 Act, within ten (10) days of Our request, You agree to furnish Us, a written statement confirming Your compliance with the filing requirements of the Securities and Exchange Commission as set forth in such Rule 144, as may be amended.

Þ No Impairment. You agree not to, by amendment of Your Certificate of Incorporation or through a reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms to be observed or performed under this Warrant by You, but shall at all times in good faith assist in carrying out of all the provisions of this Warrant and in taking all such action as may be necessary or appropriate to protect Our rights under this Warrant against impairment. However, You shall not be deemed to have impaired Our rights if You amend Your Certificate of Incorporation, or the holders of Your preferred stock waive their rights thereunder, in a manner that does not (individually or when considered in the context of any other actions being taken in connection with such amendments or waivers) affect Us in a manner different from the effect that such amendments or waivers have on the rights of other holders of the same series and class as the Warrant Stock.

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7. OUR REPRESENTATIONS AND COVENANTS TO YOU.

Þ Investment Purpose. The right to acquire Warrant Stock or the Warrant Stock issuable upon exercise of Our rights contained herein and the Common Stock issuable upon conversion will be acquired for investment purposes and not with a view to the sale or distribution of any part thereof, and We have no present intention of selling or engaging in any public distribution of the same in violation of the 1933 Act.

Þ Private Issue. We understand (i) that this Warrant Agreement, the Warrant Stock issuable upon exercise of this Warrant Agreement and the Common Stock issuable upon conversion of the Warrant Stock are not registered under the 1933 Act or qualified under applicable state securities laws on the ground that the issuance contemplated by this Warrant Agreement will be exempt from the registration and qualifications requirements thereof, and (ii) that Your reliance on such exemption is predicated on the representations set forth in this Section 7.

Þ Disposition of Our Rights. In no event will We make a disposition of any of Our rights to acquire Warrant Stock or Warrant Stock issuable upon exercise of such rights or the Common Stock issuable upon conversion of the Warrant Stock unless and until (i) We shall have notified You in writing of the proposed disposition, and (ii) the transferee agrees to be bound in writing to the applicable terms and conditions of this Warrant Agreement, and (iii) if You request, We shall have furnished You with an opinion of counsel satisfactory to You and Your counsel to the effect that (A) appropriate action necessary for compliance with the 1933 Act has been taken, or (B) an exemption from the registration requirements of the 1933 Act is available. Notwithstanding the foregoing, the restrictions imposed upon the transferability of any of Our rights to acquire Warrant Stock or Warrant Stock issuable on the exercise of such rights or the Common Stock issuable upon conversion of the Warrant Stock do not apply to transfers from the beneficial owner of any of the aforementioned securities to its nominee or from such nominee to its beneficial owner, and shall terminate as to any particular share of Warrant Stock when (1) such security shall have been effectively registered under the 1933 Act and sold by the holder thereof in accordance with such registration or (2) such security shall have been sold without registration in compliance with Rule 144 under the 1933 Act, or (3) a letter shall have been issued to You at Our request by the staff of the Securities and Exchange Commission or a ruling shall have been issued to the You at Our request by such Commission stating that no action shall be recommended by such staff or taken by such Commission, as the case may be, if such security is transferred without registration under the 1933 Act in accordance with the conditions set forth in such letter or ruling and such letter or ruling specifies that no subsequent restrictions on transfer are required. Whenever the restrictions imposed hereunder shall terminate, as hereinabove provided, the holder of a share of Warrant Stock then outstanding as to which such restrictions have terminated shall be entitled to receive from You, without expense to such holder, one or more new certificates for the Warrant or for such shares of Warrant Stock not bearing any restrictive legend referring to 1933 Act registration or exemption.

Þ Financial Risk. We have such knowledge and experience in financial and business matters and knowledge of Your business affairs and financial condition as to be capable of evaluating the merits and risks of Our investment, and have the ability to bear the economic risks of Our investment.

Þ Risk of No Registration. We understand that if You do not register with the Securities and Exchange Commission pursuant to Section 12 of the 1934 Act (the “1934 Act”), or file reports pursuant to Section 15(d), of the 1934 Act, or if a registration statement covering the securities under the 1933 Act is not in effect when We desire to sell (i) the rights to purchase Warrant Stock pursuant to this Warrant Agreement, or (ii) the Warrant Stock issuable upon exercise of the right to purchase, or (iii) the Common Stock issuable upon conversion of the Warrant Stock, We may be required to hold such securities for an indefinite period. We also understand that any sale of Our right to purchase Warrant Stock or Warrant Stock or Common Stock issuable upon conversion of the Warrant Stock, which might be made by it in reliance upon Rule 144 under the 1933 Act may be made only in accordance with the terms and conditions of that Rule.

Þ Accredited Investor. We are an “accredited investor” within the meaning of the Securities and Exchange Rule 501 of Regulation D of the 1933 Act, as presently in effect.

Þ Domicile. Our domicile for purposes of state securities laws is in the State of California.

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Þ Lock-Up Agreement. In consideration for You agreeing to Your obligations under this Warrant Agreement, We and each of Our transferees agrees, in connection with the first registration of Your securities under the 1933 Act, upon Your request or the request of the underwriters managing any underwritten offering of Your securities, not to (a) 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 Us or are thereafter acquired) or (b) 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 (a) or (b) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise, without Your prior written consent or the prior written consent of such underwriters, as the case may be, for such period of time (not to exceed 180 days or such other period as may be requested by You or the underwriters to accommodate regulatory restrictions on (i) the publication or other distribution of research reports and (ii) analyst recommendations and opinions, including, but not limited to, the restrictions contained in NASD Rule 2711(f)(4) or NYSE Rule 472(f)(4), or any successor provisions or amendments thereto) from the effective date of such registration as You or the underwriters may specify; provided, however, that all (x) Your officers and directors and (y) Your stockholders holding three percent (3%) or more of Your total outstanding Common Stock (treating all Your convertible, exercisable and exchangeable securities on an as-if converted to Common Stock basis) are bound by agreements that are no less restrictive. The underwriters in connection with Your initial public offering are intended third party beneficiaries of this Lock-Up Agreement and shall have the right, power and authority to enforce the provisions hereof as though they were a party hereto. We agree that You may instruct Your transfer agent to place stop-transfer notations in its records to enforce the provisions of this Lock-Up Agreement until the end of such period.

8. NOTICES YOU AGREE TO PROVIDE US.

You agree to give Us at least twenty (20) days prior written notice of the following events:

Þ If You Pay a Dividend or distribution declaration upon your stock.

Þ If You offer for subscription pro-rata to the existing shareholders additional stock or other rights (except for an offering made pursuant to Your Stockholders’ Agreement

Þ If You consummate a Merger Event.

Þ If You have an IPO.

Þ If You dissolve or liquidate.

All notices in this Section must set forth details of the event, how the event adjusts either Our number of shares or Our Exercise Price and the method used for such adjustment.

Timely Notice. Your failure to timely provide such notice required above shall entitle Us to retain the benefit of the applicable notice period notwithstanding anything to the contrary contained in any insufficient notice received by Us.

9. DOCUMENTS YOU WILL PROVIDE US.

Upon signing this Agreement You will provide Us with:

Þ Executed originals of this Agreement, and all other documents and instruments that We may reasonably require

Þ Secretary’s certificate of incumbency and authority

Þ Certified copy of resolutions of Your board of directors approving this Warrant Agreement

Þ Certified copy of Certificate of Incorporation and By-Laws as amended through the Effective Date

Þ Current Registration Rights Agreement

So long as this Warrant Agreement is in effect, You shall provide Us with the following:

Þ You shall submit to Us information that We may reasonably request from time to time in order to satisfy the reasonable requests of our independent accounting firm in connection with the audit of the fair market value of this Warrant Agreement recorded in Our books and records, including but not limited to a written certification by the Company or its advisors of the current fair market value of the Warrant Stock or Your capital stock and shall include information supporting the reasonableness of the fair market value indicated by such certification.

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Þ You shall submit to Us any documents and information that We may reasonably request from time to time and are necessary to implement the provisions and purposes of this Warrant Agreement.

10. REGISTRATION RIGHTS UNDER THE 1933 ACT.

The shares of Your common stock into which the Warrant Stock is convertible shall have “piggyback” and “Form S-3” registration rights as set forth in the Registration Rights Agreement, dated as of October 29, 2010 (as amended, the “Registration Rights Agreement”).

11. OTHER LEGAL PROVISIONS THE PARTIES WILL ABIDE BY.

Effective Date. This Warrant Agreement shall be construed and shall be given effect in all respects as if it had been executed and delivered by the Parties on the date hereof. This Warrant Agreement shall be binding upon any of the successors or assigns of the Parties.

Attorney’s Fees. In any litigation, arbitration or court proceeding between the Parties relating to this Warrant Agreement, the prevailing party shall be entitled to attorneys’ fees and expenses and all costs of proceedings incurred in enforcing this Warrant Agreement.

Governing Law. This Warrant Agreement shall be governed by and construed for all purposes under and in accordance with the laws of the State of California without giving effect to that body of law pertaining to conflicts of laws.

Consent to Jurisdiction and Venue. All judicial proceedings arising in or under or related to this Warrant Agreement may be brought in any state or federal court of competent jurisdiction located in the State of California. By execution and delivery of this Warrant Agreement, each party hereto generally and unconditionally: (a) consents to personal jurisdiction in San Mateo County, State of California; (b) waives any objection as to jurisdiction or venue in San Mateo County, State of California; (c) agrees not to assert any defense based on lack of jurisdiction or venue in the aforesaid courts; and (d) irrevocably agrees to be bound by any judgment rendered thereby in connection with this Warrant Agreement. Service of process on any party hereto in any action arising out of or relating to this agreement shall be effective if given in accordance with the requirements for notice set forth in this Section, and shall be deemed effective and received as set forth therein. Nothing herein shall affect the right to serve process in any other manner permitted by law or shall limit the right of either party to bring proceedings in the courts of any other jurisdiction.

Mutual Waiver of Jury Trial; Judicial Reference. Because disputes arising in connection with complex financial transactions are most quickly and economically resolved by an experienced and expert person and the Parties wish applicable state and federal laws to apply (rather than arbitration rules), The Parties desire that their disputes be resolved by a judge applying such applicable laws. EACH OF THE PARTIES SPECIFICALLY WAIVES ANY RIGHT THEY MAY HAVE TO TRIAL BY JURY OF ANY CAUSE OF ACTION, CLAIM, CROSS-CLAIM, COUNTERCLAIM, THIRD PARTY CLAIM OR ANY OTHER CLAIM (COLLECTIVELY, “CLAIMS”) ASSERTED BY YOU AGAINST US OR OUR ASSIGNEE OR BY US OR OUR ASSIGNEE AGAINST YOU. IN THE EVENT THAT THE FOREGOING JURY TRIAL WAIVER IS NOT ENFORCEABLE, ALL CLAIMS, INCLUDING ANY AND ALL QUESTIONS OF LAW OR FACT RELATING THERETO, SHALL, AT THE WRITTEN REQUEST OF ANY PARTY, BE DETERMINED BY JUDICIAL REFERENCE PURSUANT TO THE CALIFORNIA CODE OF CIVIL PROCEDURE (“REFERENCE”). THE PARTIES SHALL SELECT A SINGLE NEUTRAL REFEREE, WHO SHALL BE A RETIRED STATE OR FEDERAL JUDGE. IN THE EVENT THAT THE PARTIES CANNOT AGREE UPON A REFEREE, THE REFEREE SHALL BE APPOINTED BY THE COURT. THE REFEREE SHALL REPORT A STATEMENT OF DECISION TO THE COURT. NOTHING IN THIS SECTION SHALL LIMIT THE RIGHT OF ANY PARTY AT ANY TIME TO EXERCISE LAWFUL SELF-HELP REMEDIES, FORECLOSE AGAINST COLLATERAL OR OBTAIN PROVISIONAL REMEDIES. THE PARTIES SHALL BEAR THE FEES AND EXPENSES OF THE REFEREE EQUALLY UNLESS THE REFEREE ORDERS OTHERWISE. THE REFEREE SHALL ALSO DETERMINE ALL ISSUES RELATING TO THE APPLICABILITY, INTERPRETATION, AND ENFORCEABILITY OF THIS SECTION. THE PARTIES ACKNOWLEDGE THAT THE CLAIMS WILL NOT BE ADJUDICATED BY A JURY. This waiver extends to all such Claims, including Claims that involve Persons other than You and Us; Claims that arise out of or are in any way connected to the relationship between You and Us; and any Claims for damages, breach of contract, specific performance, or any equitable or legal relief of any kind, arising out of this Warrant Agreement.

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Counterparts. This Warrant Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

Notices. Any notice required or permitted under this Warrant Agreement shall be given in writing and shall be deemed effectively given upon the earlier of (1) actual receipt or 3 days after mailing if mailed postage prepaid by regular or airmail to Us or You or (2) one day after it is sent by overnight mail via nationally recognized courier or (3) on the same day as sent via confirmed facsimile transmission, provided that the original is sent by personal delivery or mail by the sending party.

Remedies. In the event of any default hereunder, the non-defaulting party may proceed to protect and enforce its rights either by suit in equity and/or by action at law, including but not limited to an action for damages as a result of any such default, and/or an action for specific performance for any default where such party will not have an adequate remedy at law and where damages will not be readily ascertainable. Each party expressly acknowledges and agrees that there is no adequate remedy at law for any breach of this Warrant Agreement and that in the event of any breach of this Agreement, the injured party shall be entitled to specific performance of any or all provisions hereof or an injunction prohibiting the other party from continuing to commit any such breach of this Agreement.

Survival. The representations, warranties, covenants, and conditions of the Parties contained herein or made pursuant to this Warrant Agreement shall survive the execution and delivery of this Warrant Agreement.

Severability. In the event any one or more of the provisions of this Warrant Agreement shall for any reason be held invalid, illegal or unenforceable, the remaining provisions of this Warrant Agreement shall be unimpaired, and the invalid, illegal or unenforceable provision shall be replaced by a mutually acceptable valid, legal and enforceable provision, which comes closest to the intention of the Parties underlying the invalid, illegal or unenforceable provision.

Entire Agreement. This Warrant Agreement constitutes the entire agreement between the Parties pertaining to the subject matter contained in it and supersedes all prior and contemporaneous agreements, representations and undertakings of the Parties, whether oral or written, with respect to such subject matter.

Amendments. Any provision of this Warrant Agreement may only be amended by a written instrument signed by the Parties.

Lost Warrants or Stock Certificates. You covenant to Us that, upon receipt of evidence reasonably satisfactory to Us of the loss, theft, destruction or mutilation of this Warrant Agreement or any stock certificate and, in the case of any such loss, theft or destruction, upon receipt of an indemnity reasonably satisfactory to You, or in the case of any such mutilation upon surrender and cancellation of such Warrant Agreement or stock certificate, You will make and deliver a new Warrant Agreement or stock certificate, of like tenor, in lieu of the lost, stolen, destroyed or mutilated Warrant Agreement or stock certificate.

Rights as Stockholders. We shall not, as a party to this Warrant Agreement, be entitled to vote or receive dividends or be deemed the holder of the Warrant Stock or any of Your other securities which may at any time be issuable upon the exercise hereof for any purpose, nor shall anything contained herein be construed to confer upon Us any of the rights of one of Your stockholders or any right to vote for the election of directors or upon any matter submitted to stockholders at any meeting thereof, or to receive dividends or subscription rights or otherwise until this Warrant Agreement is exercised and the shares purchasable upon the exercise hereof shall have become deliverable, as provided herein.

Facsimile Signatures. This Warrant Agreement may be executed and delivered by facsimile and upon such delivery the facsimile signature will be deemed to have the same effect as if the original signature had been delivered to the other party.

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IN WITNESS WHEREOF, each of the Parties have caused this Warrant Agreement to be executed by its officers who are duly authorized as of the Effective Date.

You: BLOOM ENERGY CORPORATION

Signature:

Print Name:

Title:

Us: TRIPLEPOINT CAPITAL LLC

Signature:

Print Name:

Title:

[SIGNATURE PAGE TO AMENDED AND RESTATED PLAIN ENGLISH

WARRANT AGREEMENT 0674-W-01]

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EXHIBIT I

NOTICE OF EXERCISE

To: [                                        ]

1. We hereby elect to purchase [            ] shares of the Series [            ] Preferred Stock of [            ], pursuant to the terms of the Plain English Warrant Agreement dated the [            ] day of [            ], [200    ] (the “Plain English Warrant Agreement”) between You and Us, We hereby tender here payment of the purchase price for such shares in full, together with all applicable transfer taxes, if any.

2. Method of Exercise (Please initial the applicable blank)

a.              The undersigned elects to exercise the Plain English Warrant Agreement by means of a cash payment, and gives You full payment for the purchase price of the shares being purchased, together with all applicable transfer taxes, if any.

b.              The undersigned elects to exercise the Plain English Warrant Agreement by means of the Net Issuance Exercise method of Section 3 of the Plain English Warrant Agreement.

3. In exercising Our rights to purchase the Series [            ] Preferred Stock of [                    ], We hereby confirm and acknowledge the investment representations, warranties and covenants made in Section 7 of the Plain English Warrant Agreement.

Please issue a certificate or certificates representing these purchased shares of Series [            ] Preferred Stock in Our name or in such other name as is specified below.

(Name)

(Address)

US: TRIPLEPOINT CAPITAL LLC

By:

Title:

Date:

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EXHIBIT II

ACKNOWLEDGMENT OF EXERCISE

[                                                     ], hereby acknowledges receipt of the “Notice of Exercise” from TRIPLEPOINT CAPITAL LLC, to purchase [            ] shares of the Series [            ] Preferred Stock of [                    ], pursuant to the terms of the Plain English Warrant Agreement, and further acknowledges that [            ] shares remain subject to purchase under the terms of the Plain English Warrant Agreement.

YOU:
	By:
	Title:
	Date:

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EXHIBIT III

TRANSFER NOTICE

FOR VALUE RECEIVED, the foregoing Plain English Warrant Agreement and all rights evidenced thereby are hereby transferred and assigned to

(Please Print)

Whose address is

Dated:

Holder’s Signature:

Holder’s Address:

Transferee’s Signature:

Transferee’s Address:

Signature Guaranteed:

NOTE: The signature to this Transfer Notice must correspond with the name as it appears on the face of the Plain English Warrant Agreement, without alteration or enlargement or any change whatever. Officers of corporations and those acting in a fiduciary or other representative capacity should file proper evidence of authority to assign the foregoing Plain English Warrant Agreement.

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EX-4

Exhibit 4.11

THIS WARRANT AND THE SECURITIES THAT MAY BE PURCHASED PURSUANT TO THE EXERCISE OF THIS WARRANT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. SUCH SECURITIES MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER SAID ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.

BLOOM ENERGY CORPORATION

AGREEMENT AND WARRANT TO PURCHASE SERIES F PREFERRED STOCK

Effective Date: July 1, 2014

Void After: July 1, 2021

This Agreement and Warrant to Purchase Series F Preferred Stock (this “Agreement” or “Warrant”) certifies that, for value received, PE12GVVC (US DIRECT) LTD., or any permitted transferee (the “Holder”), is entitled, subject to the terms set forth below, to purchase from Bloom Energy Corporation, a Delaware corporation (the “Company”), up to 330,749 shares of Series F Preferred Stock of the Company (“Series F Preferred Stock”), upon surrender of this Warrant, at the principal office of the Company referred to below, with the subscription form attached hereto duly executed, and simultaneous payment therefor, as hereinafter provided, of the aggregate Exercise Price (as defined below). The Exercise Price and the number of shares of Series F Preferred Stock purchasable hereunder are subject to adjustment as provided herein.

1. Number of Shares. Subject to any adjustments pursuant to Section 11 herein, this Warrant may be exercised, in whole or in part, for up to 330,749 shares of Series F Preferred Stock (the “Warrant Shares”).

2. Exercise Price. Subject to any adjustments pursuant to Section 11 herein, the per share purchase price of the Series F Preferred Stock (the “Exercise Price”) for which this Warrant may be exercised shall be $18.52.

3. Exercise of Warrant.

3.1 Time of Exercise. Subject to the terms and conditions set forth herein, this Warrant shall be exercisable, in whole or in part, at any time or from time to time prior to 5:00 p.m. (Pacific Standard Time) on July 1, 2021 (the “Expiration Date”).

Notwithstanding the foregoing, unless the Holder provides the Company with prior written notice to the contrary, this Warrant shall terminate immediately prior to the closing of (i) a merger, consolidation, amalgamation or similar transaction of the Company with or into any other corporation or corporations in which the stockholders of the Company immediately prior to such transaction shall own, immediately thereafter, less than fifty percent (50%) of the voting securities of the surviving corporation or its parent or (ii) a sale of all or substantially all of the assets of the Company (each a “Change of Control Event”). The Company shall give the Holder written notice of a Change of Control Event not later than thirty (30) days prior to the closing of such Change of Control Event.

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3.2 Method of Exercise. The exercise shall be effected by (a) the surrender of this Warrant at the principal office of the Company as set forth in Section 12.6 (or such other office or agency of the Company as may be designated by notice in writing to the Holder at the address of the Holder appearing on the books of the Company), (b) delivery of the Notice of Exercise attached hereto as Exhibit A (unless the Holder is exercising by means of a “net exercise” as provided for in Section 4 below, in which case the Holder shall deliver the Net Exercise Notice attached hereto as Exhibit B (the “Net Exercise Notice”)), and (c) unless payment of the Exercise Price is made pursuant to a “net exercise” as provided under Section 4 below, payment of the Exercise Price in cash, check or wire transfer of immediately available funds.

3.3 Effect of Exercise. This Warrant (or the portion thereof exercised) shall be deemed to have been exercised immediately prior to the close of business on the date of its surrender for exercise as provided above, and the Holder shall be treated for all purposes as the holder of record of such Warrant Shares as of the close of business on such date. The Company, at its expense, shall, within three (3) business days after exercise, issue and deliver to the Holder (i) a certificate or certificates for the number of Warrant Shares issuable upon such exercise and, (ii) unless this Warrant shall have expired or been exercised in full, a new warrant representing the right to acquire the number of Warrant Shares represented by the surrendered Warrant, if any, that shall not have been exercised.

4. Net Exercise.

4.1 Net Issue Exercise. In lieu of exercising this Warrant via payment by cash, check or wire transfer, the Holder may elect to receive shares equal to the value of this Warrant (or the portion thereof being exercised) by surrender of this Warrant at the principal office of the Company together with the completed Net Exercise Notice indicating the Holder’s election to exercise this Warrant by means of a “net exercise,” in which event the Company shall issue to the Holder a number of shares of Common Stock computed using the following formula:

X = Y (A - B)

A

Where	X	=	the number of Warrant Shares to be issued to the Holder.
	Y	=	the number of Warrant Shares purchasable under this Warrant or, if only a portion of the Warrant is being exercised, the portion of the Warrant being exercised (at the date of such calculation).
	A	=	the fair market value (as determined below) of one Warrant Share (at the date of such calculation).
	B	=	the Exercise Price (as adjusted to the date of such calculation).

If the above calculation results in a negative number, then no shares of Common Stock shall be issued or issuable upon exercise of this Warrant.

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4.2 Fair Market Value. For purposes of this Section 4, the “fair market value” of one Warrant Share shall be determined by the Company’s Board of Directors in good faith which determination shall take in account any factors that the Company’s Board of Directors (the “Board”) deems relevant, including, without limitation, any independent third party valuation but, for the avoidance of doubt, without giving effect to lack of control or lack of marketability; provided however, that if the time of exercise coincides with the Company’s underwritten initial public offering, the “fair market value” shall be the price at which the Company’s Common Stock are sold at such public offering, and further provided, that where there exists a public market for the Warrant Shares at the time of such exercise, the “fair market value” per Warrant Share shall be the average of the closing prices of the Warrant Shares on any such exchange on which the Warrant Shares is listed, whichever is applicable, for the twenty-one (21) trading days prior to the date of the delivery of the Net Exercise Notice.

5. No Fractional Shares or Scrip. No fractional shares or scrip representing fractional shares shall be issued upon the exercise of this Warrant. In lieu of any fractional share to which the Holder would otherwise be entitled, the Company shall, within three (3) business days after exercise, make a payment to the Holder, via cash, check or wire transfer of immediately available funds, equal to the Exercise Price multiplied by such fraction computed to the nearest whole cent less the prorated Exercise Price for such fractional share.

6. No Rights as Stockholder. Until the Warrant shall have been exercised as provided herein, solely by virtue of this Warrant, the Holder shall not be entitled to vote or receive dividends or be deemed the holder of Series F Preferred Stock or any other securities of the Company that may at any time be issuable on the exercise hereof for any purpose, nor shall anything contained herein be construed to confer upon the Holder, as such, any of the rights of a stockholder of the Company or any right to vote for the election of directors or upon any matter submitted to stockholders at any meeting thereof, or to give or withhold consent to any corporate action, or to receive dividends or subscription rights or otherwise. Nothing contained in this Warrant shall be construed as imposing any liabilities on the Holder to purchase any securities (upon exercise of this Warrant or otherwise) or as a stockholder of the Company, whether such liabilities are asserted by the Company or creditors of the Company.

7. Transfer of Warrant; Registration Rights.

7.1 Transferability of Warrant. Subject to Section 7.2, this Warrant and all rights hereunder are transferable, in whole or in part, upon the books of the Company by the Holder in person or by duly authorized attorney, and a new warrant shall be made and delivered by the Company, of the same tenor and date as this Warrant but registered in the name of one or more transferees, upon surrender of this Warrant, duly endorsed, to the office or agency of the Company described in Section 3.2. All expenses (other than stock transfer taxes) and other charges payable in connection with the preparation, execution and delivery of the new warrants pursuant to this Section 7.1 shall be paid by the Company.

7.2 Company Consent to Transfers. Notwithstanding anything to the contrary set forth in Section 7.1, Holder may not transfer this Warrant, or any rights hereunder, prior to an initial public offering of the Company’s common stock without the prior written consent of the Company, such consent not to be unreasonably withheld or delayed.

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Notwithstanding the foregoing, the written consent of the Company will not be required and the Holder shall only be required to provide the Company with prior written notice of any sale, transfer or other disposition of this Warrant prior to an initial public offering of the Company’s Common Stock if the sale, transfer or other disposition is to (i) an “Affiliate” (as such term is defined in Rule 144(a) promulgated under the Securities Act, which for purposes of this Agreement shall be deemed to include any direct or indirect partner or other equityholder of the Holder and shall include any investment entity under common management with the Holder) of the Holder, (ii) to the direct or indirect partners or retired partners of the Holder, if the Holder is a partnership, (iii) to the direct or indirect shareholders of the Holder, if the Holder is a corporation, or (iv) to the direct or indirect members of the Holder, if the Holder is a limited liability company.

7.3 Register. The Company will maintain a register (the “Warrant Register”) containing the name and address of the Holder. The Holder of this Warrant may change its address as shown on the Warrant Register by written notice to the Company requesting such change. Any notice or written communication required or permitted to be given to the Holder may be delivered or given by mail to the Holder as shown on the Warrant Register and at the address shown on the Warrant Register.

8. Representations and Warranties of the Holder and Restrictions on Transfer Imposed by the Securities Act.

8.1 Representations and Warranties by the Holder. The Holder hereby represents and warrants to the Company as follows:

(a) The Holder has full legal capacity, power and authority to execute and deliver this Agreement and to perform its obligations hereunder. This Agreement is a valid and binding obligation of the Holder, enforceable in accordance with its terms, except as limited by bankruptcy, insolvency or other laws of general application relating to or affecting the enforcement of creditors’ rights generally and general principles of equity.

(b) The Warrant and the Warrant Shares are being acquired for the Holder’s own account, for investment and not with a view to, or for resale in connection with, any distribution or public offering thereof within the meaning of the Securities Act or any state Blue Sky laws.

(c) The Holder understands that the Warrant and the Warrant Shares have not been registered under the Securities Act by reason of their issuance in a transaction exempt from the registration and prospectus delivery requirements of the Securities Act pursuant to Section 4(2) thereof, that the Company has no present intention of registering the Warrant or the Warrant Shares, that the Warrant and the Warrant Shares must be held by the Holder indefinitely, and that the Holder must therefor bear the economic risk of such investment indefinitely, unless a subsequent disposition thereof is registered under the Securities Act or is exempt from registration.

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(d) The Holder agrees that it will not offer, sell or otherwise dispose of this Warrant or any Warrant Shares to be issued upon exercise hereof except under circumstances which will not result in a violation of the Securities Act or any state securities law. This Warrant and all Warrant Shares issued upon exercise of this Warrant shall be stamped or imprinted with legends in substantially the following form:

THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) OR REGISTERED OR QUALIFIED UNDER ANY STATE SECURITIES LAWS. THESE SECURITIES MAY NOT BE OFFERED, SOLD, PLEDGED OR TRANSFERRED UNLESS (I) THERE IS AN EFFECTIVE REGISTRATION STATEMENT COVERING SUCH OFFER, SALE OR TRANSFER OR (II) THERE IS AN OPINION OF COUNSEL, REASONABLY SATISFACTORY TO THE COMPANY, THAT EXEMPTIONS FROM THE REGISTRATION, QUALIFICATION AND PROSPECTUS DELIVERY REQUIREMENTS OF THE SECURITIES ACT AND OF ANY APPLICABLE STATE SECURITIES LAWS FOR SUCH OFFER, SALE OR TRANSFER ARE AVAILABLE.

THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A LOCK-UP PERIOD FOLLOWING THE EFFECTIVE DATE OF THE COMPANY’S INITIAL UNDERWRITTEN PUBLIC OFFERING AND MAY NOT BE SOLD OR OTHERWISE DISPOSED OF BY THE HOLDER WITHOUT THE CONSENT OF THE COMPANY OR THE MANAGING UNDERWRITER.

(e) During the negotiation of the transactions contemplated herein, the Holder and its representatives and legal counsel have been afforded full and free access to corporate books, financial statements, records, contracts, documents, and other information concerning the Company and to its offices and facilities, have been afforded an opportunity to ask such questions of the Company’s officers, employees, agents, accountants and representatives concerning the Company’s business, operations, financial condition, assets, liabilities and other relevant matters as they have deemed necessary or desirable, and have been given all such information as has been requested, in order to evaluate the merits and risks of the prospective investments contemplated herein.

(f) The Holder and its representatives have been solely responsible for the Holder’s own “due diligence” investigation of the Company and the Company’s management and business, for its own analysis of the merits and risks of this investment, and for its own analysis of the fairness and desirability of the terms of the investment. In taking any action or performing any role relative to the arranging of the proposed investment, the Holder has acted solely in its own interest, and the Holder (or any of its agents or employees) has not acted as an agent of the Company. The Holder has such knowledge and experience in financial and business matters that the Holder is capable of evaluating the merits and risks of the purchase of the Warrant pursuant to the terms of this Agreement and of protecting the Holder’s interests in connection therewith.

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(g) The Holder is an “accredited investor” as defined in Rule 501 of the Securities Act.

(h) The Holder understands that it has had the opportunity to review with its own tax advisors the federal, state, local and foreign tax consequences of this investment and the transactions contemplated by this Agreement. It understands that it (and not the Company) shall be responsible for its own tax liability that may arise as a result of this investment or the transactions contemplated by this Agreement.

9. [Reserved].

10. Lost Documents. Upon receipt by the Company of evidence of the loss, theft, destruction or mutilation of, and upon surrender and cancellation of this Warrant, if mutilated, the Company will make and deliver to the Holder, in lieu of this Warrant, a new Warrant of the same series and of like tenor of this Warrant.

11. Adjustments. The number of shares purchasable hereunder are subject to adjustment from time to time as follows:

11.1 Reorganization, Reclassification, Merger or Conveyance. If any capital reorganization or reclassification of the capital stock of the Company shall be effected in such a way that holders of Series F Preferred Stock shall be entitled to receive stock, securities or assets with respect to or in exchange for Series F Preferred Stock (including, for the avoidance of doubt, in the event of an initial public offering of the Company’s common stock), or in the event the Company (or any such other corporation) merges with or into another corporation or conveys all or substantially all of its assets to another corporation and this Warrant does not terminate in accordance with the, provisions of Section 3.1 above, then, as a condition of such reorganization, reclassification, merger or conveyance, lawful and adequate provisions shall be made whereby this Warrant shall remain outstanding upon the terms and conditions specified herein and shall thereafter be automatically (and without further action) exercisable for (in lieu of the Warrant Shares immediately theretofore receivable upon the exercise of the Warrant) such shares of stock, securities or assets (including cash) as may be issued or payable with respect to or in exchange for the number of Warrant Shares immediately theretofore so receivable, in connection with such reorganization, reclassification, merger or conveyance. In any such case, the Company should ensure that the rights and interests of the Holder hereunder will not be disproportionately adversely affected relative to the other holders of the Company’s Series F Preferred Stock.

11.2 Split, Subdivision or Combination of Shares. If the Company at any time while this Warrant, or any portion thereof, remains outstanding and unexpired shall split, subdivide or combine the securities as to which purchase rights under this Warrant exist, into a different number of securities of the same class, the Exercise Price for such securities shall be proportionately decreased in the case of a split or subdivision or proportionately increased in the case of a combination and the number of the securities as to which purchaser rights under this Warrant exist shall be increased or decreased proportionately in accordance with such split subdivision or combination, in each case such that, following any such split subdivision or combination, Holder shall be entitled to purchase the number of Common Stock which Holder would have owned or otherwise been entitled to receive in respect of shares of Common Stock subject to this Warrant after such date, had this Warrant been exercised immediately prior to such date.

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11.3 Certificate as to Adjustments. Upon the occurrence of each adjustment or readjustment pursuant to this Section 11, the Company at its expense shall promptly compute such adjustment or readjustment in accordance with the terms hereof and furnish to the Secretary of the Company for filing in the Company’s records and to the Holder a certificate setting forth such adjustment or readjustment and showing in detail the facts upon which such adjustment or readjustment is based. The Company shall, upon the written request, at any time, of the Holder, furnish or cause to be furnished to the Holder a like certificate setting forth: (a) such adjustments and readjustments; (b) the Exercise Price at the time in effect; and (c) the number of shares and the amount, if any, of other property that at the time would be received upon the exercise of the Warrant. No such adjustment or change shall compel immediate exercise of this Warrant or otherwise affect the Expiration Date of this Warrant.

11.4 Other Adjustments (No Impairment). If any change in the Warrant Shares or any other event occurs as to which the other provisions of this Section 11 are not strictly applicable or if strictly applicable would not fairly protect the purchase rights of the Holder in accordance with such provisions, then the Company shall make an adjustment in the number and class of shares available under the Warrant, the Exercise Price or the application of such provisions, so as to protect such purchase rights as aforesaid.

12. General Provisions.

12.1 Governing Law. This Warrant shall be governed by and construed under the laws of the State of Delaware, excluding that body of law relating to conflict of laws.

12.2 Consent to Jurisdiction. Each of the parties hereto irrevocably submits to the exclusive jurisdiction of the Court of Chancery of the State of Delaware or, if such Court of Chancery shall lack subject matter jurisdiction, the Federal courts of the United States of America located in the County of New Castle, Delaware, for the purposes of any suit, action or other proceeding arising out of this Agreement or any of the Transactions. Each of the parties hereto further agrees that service of any process, summons, notice or document by U.S. registered mail to such party’s respective address set forth in Section 12.6 shall be effective service of process for any action, suit or proceeding in Delaware with respect to any matters to which it has submitted to jurisdiction as set forth above in the immediately preceding sentence. Each of the parties hereto irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement or the Transactions in the Court of Chancery of the State of Delaware or the Federal courts of the United States of America located in the County of New Castle, Delaware, and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum.

12.3 Waiver of Jury Trial. THE PARTIES HEREBY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY, WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN

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CONTRACT, TORT OR OTHERWISE. THE PARTIES AGREE THAT ANY OF THEM MAY FILE A COPY OF THIS SECTION 12.3 WITH ANY COURT AS WRITTEN EVIDENCE OF THE KNOWING, VOLUNTARY AND BARGAINED-FOR AGREEMENT AMONG THE PARTIES IRREVOCABLY TO WAIVE TRIAL BY JURY AND THAT ANY ACTION OR PROCEEDING WHATSOEVER AMONG THEM RELATING TO THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY SHALL INSTEAD BE TRIED IN A COURT OF COMPETENT JURISDICTION BY A JUDGE SITTING WITHOUT A JURY.

12.4 Survival. The representations, warranties, covenants and agreements made herein shall survive the execution of this Agreement and the exercise of this Warrant.

12.5 Successors and Assigns. Except as otherwise expressly provided herein, the provisions hereof shall inure to the benefit of, and be binding upon, the successors, assigns, heirs, executors and administrators of the parties hereto.

12.6 Notices, etc. All notices and other communications required or permitted hereunder shall be in writing and shall be sent via facsimile, overnight courier service or mailed by certified or registered mail, postage prepaid, return receipt requested, addressed or sent (a) if to the Holder, at the address or facsimile number of the Holder set forth below such party’s name on the signature page hereto, or at such other address or number as the Holder shall have furnished to the Company in writing, or (b) if to the Company, at 1299 Orleans Dr., Sunnyvale, CA 94089, facsimile: (408) 543-1501, attention: Chief Executive Officer or at such other address or number as the Company shall have furnished to the Holder in writing.

All such notices and communications shall be effective (a) when sent by Federal Express or other overnight service of recognized standing, on the business day following the deposit with such service; (b) when mailed, by registered or certified mail, first class postage prepaid and addressed as aforesaid through the United States Postal Service or Canada Post, four days after being deposited in the mail; (c) when delivered by hand, upon delivery; and (d) when faxed, upon confirmation of receipt.

12.7 Amendments. This Warrant may be amended and the observance of any term of this Warrant may be waived only with the written consent of the Company and the Holder.

12.8 Severability. In case any provision of this Agreement shall be declared invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the Transactions are consummated as originally contemplated to the fullest extent possible.

12.9 Counterparts. This Agreement may be executed in any number of counterparts each of which shall be an original, but all of which together shall constitute one instrument.

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IN WITNESS WHEREOF, the Company and the Holder have caused the Warrant to be executed as of the effective date of this Warrant set forth above.

BLOOM ENERGY CORPORATION
By:	/s/ William H. Kurtz
	Name:	William H. Kurtz
	Title:	Chief Financial and Commercial Officer

AGREED AND ACCEPTED: PE12GVVC (US DIRECT) LTD.
By:	/s/ David Goerz
Name:	David Goerz
Title:	Director
Address:	# 1100 – 10830 Jasper Avenue Edmonton, AB T5J 2B3

EXHIBIT A

NOTICE OF EXERCISE

To: BLOOM ENERGY CORPORATION

(1) The undersigned hereby elects to purchase                      shares of Series F Preferred Stock (“Series F Preferred Stock”) of Bloom Energy Corporation pursuant to the terms of the attached Agreement and Warrant to Purchase Series F Preferred Stock (the “Warrant”) for an aggregate Exercise Price of                     , and tenders herewith payment of the Exercise Price for such shares in full in the following manner:                             .

(2) The undersigned hereby confirms and acknowledges that the representations and warranties set forth in Section 8 of the Warrant remain true and correct concerning the Holder as of the date hereof, that the shares of Series F Preferred Stock are being acquired solely for the account of the undersigned and not as a nominee for any other party, and for investment, and that the undersigned will not offer, sell, or otherwise dispose of any such shares of Series F Preferred Stock except under circumstances that will not result in a violation of the Securities Act of 1933, as amended, or any state securities laws.

(3) Please issue a certificate or certificates representing said shares of Series F Preferred Stock in the name of the undersigned or in such other name as is specified below. A new warrant evidencing the remaining shares of Warrant Shares covered by the Warrant, but not yet subscribed for and purchased, if any, should be issued in the name set forth below.

PE12GVVC (US DIRECT) LTD.
	Print Name
	Signature
	Title
	Date

EXHIBIT B

NET EXERCISE NOTICE

To: BLOOM ENERGY CORPORATION

(1) The undersigned hereby elects to convert the attached Warrant into                      shares of Series F Preferred Stock (“Series F Preferred Stock”) of Bloom Energy Corporation pursuant to the terms of the attached Agreement and Warrant to Purchase Series F Preferred Stock (the “Warrant”) for an aggregate Exercise Price of                     , in the form of a cashless exercise in accordance with Section 4 of the Warrant.

(2) In converting such Warrant, the undersigned hereby confirms and acknowledges that the representations and warranties set forth in Section 8 of the Warrant remain true and correct concerning the Holder as of the date hereof, that the shares of Series F Preferred Stock are being acquired solely for the account of the undersigned and not as a nominee for any other party, and for investment, and that the undersigned will not offer, sell, or otherwise dispose of any such shares of Series F Preferred Stock except under circumstances that will not result in a violation of the Securities Act of 1933, as amended, or any state securities laws.

(3) Please issue a certificate or certificates representing said shares of Series F Preferred Stock in the name of the undersigned or in such other name as is specified below. A new warrant evidencing the remaining shares of Warrant Shares covered by the Warrant, but not yet subscribed for and purchased, if any, should be issued in the name set forth below.

PE12GVVC (US DIRECT) LTD.
	Print Name
	Signature
	Title
	Date

EX-4

Exhibit 4.12

THIS WARRANT AND THE SECURITIES THAT MAY BE PURCHASED PURSUANT TO THE EXERCISE OF THIS WARRANT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. SUCH SECURITIES MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER SAID ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.

BLOOM ENERGY CORPORATION

AGREEMENT AND WARRANT TO PURCHASE SERIES F PREFERRED STOCK

Effective Date: July 1, 2014

Void After: July 1, 2021

This Agreement and Warrant to Purchase Series F Preferred Stock (this “Agreement” or “Warrant”) certifies that, for value received, PE12PXVC (US DIRECT) LTD., or any permitted transferee (the “Holder”), is entitled, subject to the terms set forth below, to purchase from Bloom Energy Corporation, a Delaware corporation (the “Company”), up to 372,074 shares of Series F Preferred Stock of the Company (“Series F Preferred Stock”), upon surrender of this Warrant, at the principal office of the Company referred to below, with the subscription form attached hereto duly executed, and simultaneous payment therefor, as hereinafter provided, of the aggregate Exercise Price (as defined below). The Exercise Price and the number of shares of Series F Preferred Stock purchasable hereunder are subject to adjustment as provided herein.

1. Number of Shares. Subject to any adjustments pursuant to Section 11 herein, this Warrant may be exercised, in whole or in part, for up to 372,074 shares of Series F Preferred Stock (the “Warrant Shares”).

2. Exercise Price. Subject to any adjustments pursuant to Section 11 herein, the per share purchase price of the Series F Preferred Stock (the “Exercise Price”) for which this Warrant may be exercised shall be $18.52.

3. Exercise of Warrant.

3.1 Time of Exercise. Subject to the terms and conditions set forth herein, this Warrant shall be exercisable, in whole or in part, at any time or from time to time prior to 5:00 p.m. (Pacific Standard Time) on July 1, 2021 (the “Expiration Date”).

Notwithstanding the foregoing, unless the Holder provides the Company with prior written notice to the contrary, this Warrant shall terminate immediately prior to the closing of (i) a merger, consolidation, amalgamation or similar transaction of the Company with or into any other corporation or corporations in which the stockholders of the Company immediately prior to such transaction shall own, immediately thereafter, less than fifty percent (50%) of the voting securities of the surviving corporation or its parent or (ii) a sale of all or substantially all of the assets of the Company (each a “Change of Control Event”). The Company shall give the Holder written notice of a Change of Control Event not later than thirty (30) days prior to the closing of such Change of Control Event.

3.2 Method of Exercise. The exercise shall be effected by (a) the surrender of this Warrant at the principal office of the Company as set forth in Section 12.6 (or such other office or agency of the Company as may be designated by notice in writing to the Holder at the address of the Holder appearing on the books of the Company), (b) delivery of the Notice of Exercise attached hereto as Exhibit A (unless the Holder is exercising by means of a “net exercise” as provided for in Section 4 below, in which case the Holder shall deliver the Net Exercise Notice attached hereto as Exhibit B (the “Net Exercise Notice”)), and (c) unless payment of the Exercise Price is made pursuant to a “net exercise” as provided under Section 4 below, payment of the Exercise Price in cash, check or wire transfer of immediately available funds.

3.3 Effect of Exercise. This Warrant (or the portion thereof exercised) shall be deemed to have been exercised immediately prior to the close of business on the date of its surrender for exercise as provided above, and the Holder shall be treated for all purposes as the holder of record of such Warrant Shares as of the close of business on such date. The Company, at its expense, shall, within three (3) business days after exercise, issue and deliver to the Holder (i) a certificate or certificates for the number of Warrant Shares issuable upon such exercise and, (ii) unless this Warrant shall have expired or been exercised in full, a new warrant representing the right to acquire the number of Warrant Shares represented by the surrendered Warrant, if any, that shall not have been exercised.

4. Net Exercise.

4.1 Net Issue Exercise. In lieu of exercising this Warrant via payment by cash, check or wire transfer, the Holder may elect to receive shares equal to the value of this Warrant (or the portion thereof being exercised) by surrender of this Warrant at the principal office of the Company together with the completed Net Exercise Notice indicating the Holder’s election to exercise this Warrant by means of a “net exercise,” in which event the Company shall issue to the Holder a number of shares of Common Stock computed using the following formula:

X = Y (A - B)

A

Where	X	=	the number of Warrant Shares to be issued to the Holder.
	Y	=	the number of Warrant Shares purchasable under this Warrant or, if only a portion of the Warrant is being exercised, the portion of the Warrant being exercised (at the date of such calculation).
	A	=	the fair market value (as determined below) of one Warrant Share (at the date of such calculation).
	B	=	the Exercise Price (as adjusted to the date of such calculation).

If the above calculation results in a negative number, then no shares of Common Stock shall be issued or issuable upon exercise of this Warrant.

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4.2 Fair Market Value. For purposes of this Section 4, the “fair market value” of one Warrant Share shall be determined by the Company’s Board of Directors in good faith which determination shall take in account any factors that the Company’s Board of Directors (the “Board”) deems relevant, including, without limitation, any independent third party valuation but, for the avoidance of doubt, without giving effect to lack of control or lack of marketability; provided however, that if the time of exercise coincides with the Company’s underwritten initial public offering, the “fair market value” shall be the price at which the Company’s Common Stock are sold at such public offering, and further provided, that where there exists a public market for the Warrant Shares at the time of such exercise, the “fair market value” per Warrant Share shall be the average of the closing prices of the Warrant Shares on any such exchange on which the Warrant Shares is listed, whichever is applicable, for the twenty-one (21) trading days prior to the date of the delivery of the Net Exercise Notice.

5. No Fractional Shares or Scrip. No fractional shares or scrip representing fractional shares shall be issued upon the exercise of this Warrant. In lieu of any fractional share to which the Holder would otherwise be entitled, the Company shall, within three (3) business days after exercise, make a payment to the Holder, via cash, check or wire transfer of immediately available funds, equal to the Exercise Price multiplied by such fraction computed to the nearest whole cent less the prorated Exercise Price for such fractional share.

6. No Rights as Stockholder. Until the Warrant shall have been exercised as provided herein, solely by virtue of this Warrant, the Holder shall not be entitled to vote or receive dividends or be deemed the holder of Series F Preferred Stock or any other securities of the Company that may at any time be issuable on the exercise hereof for any purpose, nor shall anything contained herein be construed to confer upon the Holder, as such, any of the rights of a stockholder of the Company or any right to vote for the election of directors or upon any matter submitted to stockholders at any meeting thereof, or to give or withhold consent to any corporate action, or to receive dividends or subscription rights or otherwise. Nothing contained in this Warrant shall be construed as imposing any liabilities on the Holder to purchase any securities (upon exercise of this Warrant or otherwise) or as a stockholder of the Company, whether such liabilities are asserted by the Company or creditors of the Company.

7. Transfer of Warrant; Registration Rights.

7.1 Transferability of Warrant. Subject to Section 7.2, this Warrant and all rights hereunder are transferable, in whole or in part, upon the books of the Company by the Holder in person or by duly authorized attorney, and a new warrant shall be made and delivered by the Company, of the same tenor and date as this Warrant but registered in the name of one or more transferees, upon surrender of this Warrant, duly endorsed, to the office or agency of the Company described in Section 3.2. All expenses (other than stock transfer taxes) and other charges payable in connection with the preparation, execution and delivery of the new warrants pursuant to this Section 7.1 shall be paid by the Company.

7.2 Company Consent to Transfers. Notwithstanding anything to the contrary set forth in Section 7.1, Holder may not transfer this Warrant, or any rights hereunder, prior to an initial public offering of the Company’s common stock without the prior written consent of the Company, such consent not to be unreasonably withheld or delayed.

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Notwithstanding the foregoing, the written consent of the Company will not be required and the Holder shall only be required to provide the Company with prior written notice of any sale, transfer or other disposition of this Warrant prior to an initial public offering of the Company’s Common Stock if the sale, transfer or other disposition is to (i) an “Affiliate” (as such term is defined in Rule 144(a) promulgated under the Securities Act, which for purposes of this Agreement shall be deemed to include any direct or indirect partner or other equityholder of the Holder and shall include any investment entity under common management with the Holder) of the Holder, (ii) to the direct or indirect partners or retired partners of the Holder, if the Holder is a partnership, (iii) to the direct or indirect shareholders of the Holder, if the Holder is a corporation, or (iv) to the direct or indirect members of the Holder, if the Holder is a limited liability company.

7.3 Register. The Company will maintain a register (the “Warrant Register”) containing the name and address of the Holder. The Holder of this Warrant may change its address as shown on the Warrant Register by written notice to the Company requesting such change. Any notice or written communication required or permitted to be given to the Holder may be delivered or given by mail to the Holder as shown on the Warrant Register and at the address shown on the Warrant Register.

8. Representations and Warranties of the Holder and Restrictions on Transfer Imposed by the Securities Act.

8.1 Representations and Warranties by the Holder. The Holder hereby represents and warrants to the Company as follows:

(a) The Holder has full legal capacity, power and authority to execute and deliver this Agreement and to perform its obligations hereunder. This Agreement is a valid and binding obligation of the Holder, enforceable in accordance with its terms, except as limited by bankruptcy, insolvency or other laws of general application relating to or affecting the enforcement of creditors’ rights generally and general principles of equity.

(b) The Warrant and the Warrant Shares are being acquired for the Holder’s own account, for investment and not with a view to, or for resale in connection with, any distribution or public offering thereof within the meaning of the Securities Act or any state Blue Sky laws.

(c) The Holder understands that the Warrant and the Warrant Shares have not been registered under the Securities Act by reason of their issuance in a transaction exempt from the registration and prospectus delivery requirements of the Securities Act pursuant to Section 4(2) thereof, that the Company has no present intention of registering the Warrant or the Warrant Shares, that the Warrant and the Warrant Shares must be held by the Holder indefinitely, and that the Holder must therefor bear the economic risk of such investment indefinitely, unless a subsequent disposition thereof is registered under the Securities Act or is exempt from registration.

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(d) The Holder agrees that it will not offer, sell or otherwise dispose of this Warrant or any Warrant Shares to be issued upon exercise hereof except under circumstances which will not result in a violation of the Securities Act or any state securities law. This Warrant and all Warrant Shares issued upon exercise of this Warrant shall be stamped or imprinted with legends in substantially the following form:

THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) OR REGISTERED OR QUALIFIED UNDER ANY STATE SECURITIES LAWS. THESE SECURITIES MAY NOT BE OFFERED, SOLD, PLEDGED OR TRANSFERRED UNLESS (I) THERE IS AN EFFECTIVE REGISTRATION STATEMENT COVERING SUCH OFFER, SALE OR TRANSFER OR (II) THERE IS AN OPINION OF COUNSEL, REASONABLY SATISFACTORY TO THE COMPANY, THAT EXEMPTIONS FROM THE REGISTRATION, QUALIFICATION AND PROSPECTUS DELIVERY REQUIREMENTS OF THE SECURITIES ACT AND OF ANY APPLICABLE STATE SECURITIES LAWS FOR SUCH OFFER, SALE OR TRANSFER ARE AVAILABLE.

THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A LOCK-UP PERIOD FOLLOWING THE EFFECTIVE DATE OF THE COMPANY’S INITIAL UNDERWRITTEN PUBLIC OFFERING AND MAY NOT BE SOLD OR OTHERWISE DISPOSED OF BY THE HOLDER WITHOUT THE CONSENT OF THE COMPANY OR THE MANAGING UNDERWRITER.

(e) During the negotiation of the transactions contemplated herein, the Holder and its representatives and legal counsel have been afforded full and free access to corporate books, financial statements, records, contracts, documents, and other information concerning the Company and to its offices and facilities, have been afforded an opportunity to ask such questions of the Company’s officers, employees, agents, accountants and representatives concerning the Company’s business, operations, financial condition, assets, liabilities and other relevant matters as they have deemed necessary or desirable, and have been given all such information as has been requested, in order to evaluate the merits and risks of the prospective investments contemplated herein.

(f) The Holder and its representatives have been solely responsible for the Holder’s own “due diligence” investigation of the Company and the Company’s management and business, for its own analysis of the merits and risks of this investment, and for its own analysis of the fairness and desirability of the terms of the investment. In taking any action or performing any role relative to the arranging of the proposed investment, the Holder has acted solely in its own interest, and the Holder (or any of its agents or employees) has not acted as an agent of the Company. The Holder has such knowledge and experience in financial and business matters that the Holder is capable of evaluating the merits and risks of the purchase of the Warrant pursuant to the terms of this Agreement and of protecting the Holder’s interests in connection therewith.

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(g) The Holder is an “accredited investor” as defined in Rule 501 of the Securities Act.

(h) The Holder understands that it has had the opportunity to review with its own tax advisors the federal, state, local and foreign tax consequences of this investment and the transactions contemplated by this Agreement. It understands that it (and not the Company) shall be responsible for its own tax liability that may arise as a result of this investment or the transactions contemplated by this Agreement.

9. [Reserved].

10. Lost Documents. Upon receipt by the Company of evidence of the loss, theft, destruction or mutilation of, and upon surrender and cancellation of this Warrant, if mutilated, the Company will make and deliver to the Holder, in lieu of this Warrant, a new Warrant of the same series and of like tenor of this Warrant.

11. Adjustments. The number of shares purchasable hereunder are subject to adjustment from time to time as follows:

11.1 Reorganization, Reclassification, Merger or Conveyance. If any capital reorganization or reclassification of the capital stock of the Company shall be effected in such a way that holders of Series F Preferred Stock shall be entitled to receive stock, securities or assets with respect to or in exchange for Series F Preferred Stock (including, for the avoidance of doubt, in the event of an initial public offering of the Company’s common stock), or in the event the Company (or any such other corporation) merges with or into another corporation or conveys all or substantially all of its assets to another corporation and this Warrant does not terminate in accordance with the, provisions of Section 3.1 above, then, as a condition of such reorganization, reclassification, merger or conveyance, lawful and adequate provisions shall be made whereby this Warrant shall remain outstanding upon the terms and conditions specified herein and shall thereafter be automatically (and without further action) exercisable for (in lieu of the Warrant Shares immediately theretofore receivable upon the exercise of the Warrant) such shares of stock, securities or assets (including cash) as may be issued or payable with respect to or in exchange for the number of Warrant Shares immediately theretofore so receivable, in connection with such reorganization, reclassification, merger or conveyance. In any such case, the Company should ensure that the rights and interests of the Holder hereunder will not be disproportionately adversely affected relative to the other holders of the Company’s Series F Preferred Stock.

11.2 Split, Subdivision or Combination of Shares. If the Company at any time while this Warrant, or any portion thereof, remains outstanding and unexpired shall split, subdivide or combine the securities as to which purchase rights under this Warrant exist, into a different number of securities of the same class, the Exercise Price for such securities shall be proportionately decreased in the case of a split or subdivision or proportionately increased in the case of a combination and the number of the securities as to which purchaser rights under this Warrant exist shall be increased or decreased proportionately in accordance with such split subdivision or combination, in each case such that, following any such split subdivision or combination, Holder shall be entitled to purchase the number of Common Stock which Holder would have owned or otherwise been entitled to receive in respect of shares of Common Stock subject to this Warrant after such date, had this Warrant been exercised immediately prior to such date.

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11.3 Certificate as to Adjustments. Upon the occurrence of each adjustment or readjustment pursuant to this Section 11, the Company at its expense shall promptly compute such adjustment or readjustment in accordance with the terms hereof and furnish to the Secretary of the Company for filing in the Company’s records and to the Holder a certificate setting forth such adjustment or readjustment and showing in detail the facts upon which such adjustment or readjustment is based. The Company shall, upon the written request, at any time, of the Holder, furnish or cause to be furnished to the Holder a like certificate setting forth: (a) such adjustments and readjustments; (b) the Exercise Price at the time in effect; and (c) the number of shares and the amount, if any, of other property that at the time would be received upon the exercise of the Warrant. No such adjustment or change shall compel immediate exercise of this Warrant or otherwise affect the Expiration Date of this Warrant.

11.4 Other Adjustments (No Impairment). If any change in the Warrant Shares or any other event occurs as to which the other provisions of this Section 11 are not strictly applicable or if strictly applicable would not fairly protect the purchase rights of the Holder in accordance with such provisions, then the Company shall make an adjustment in the number and class of shares available under the Warrant, the Exercise Price or the application of such provisions, so as to protect such purchase rights as aforesaid.

12. General Provisions.

12.1 Governing Law. This Warrant shall be governed by and construed under the laws of the State of Delaware, excluding that body of law relating to conflict of laws.

12.2 Consent to Jurisdiction. Each of the parties hereto irrevocably submits to the exclusive jurisdiction of the Court of Chancery of the State of Delaware or, if such Court of Chancery shall lack subject matter jurisdiction, the Federal courts of the United States of America located in the County of New Castle, Delaware, for the purposes of any suit, action or other proceeding arising out of this Agreement or any of the Transactions. Each of the parties hereto further agrees that service of any process, summons, notice or document by U.S. registered mail to such party’s respective address set forth in Section 12.6 shall be effective service of process for any action, suit or proceeding in Delaware with respect to any matters to which it has submitted to jurisdiction as set forth above in the immediately preceding sentence. Each of the parties hereto irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement or the Transactions in the Court of Chancery of the State of Delaware or the Federal courts of the United States of America located in the County of New Castle, Delaware, and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum.

12.3 Waiver of Jury Trial. THE PARTIES HEREBY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY, WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN

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CONTRACT, TORT OR OTHERWISE. THE PARTIES AGREE THAT ANY OF THEM MAY FILE A COPY OF THIS SECTION 12.3 WITH ANY COURT AS WRITTEN EVIDENCE OF THE KNOWING, VOLUNTARY AND BARGAINED-FOR AGREEMENT AMONG THE PARTIES IRREVOCABLY TO WAIVE TRIAL BY JURY AND THAT ANY ACTION OR PROCEEDING WHATSOEVER AMONG THEM RELATING TO THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY SHALL INSTEAD BE TRIED IN A COURT OF COMPETENT JURISDICTION BY A JUDGE SITTING WITHOUT A JURY.

12.4 Survival. The representations, warranties, covenants and agreements made herein shall survive the execution of this Agreement and the exercise of this Warrant.

12.5 Successors and Assigns. Except as otherwise expressly provided herein, the provisions hereof shall inure to the benefit of, and be binding upon, the successors, assigns, heirs, executors and administrators of the parties hereto.

12.6 Notices, etc. All notices and other communications required or permitted hereunder shall be in writing and shall be sent via facsimile, overnight courier service or mailed by certified or registered mail, postage prepaid, return receipt requested, addressed or sent (a) if to the Holder, at the address or facsimile number of the Holder set forth below such party’s name on the signature page hereto, or at such other address or number as the Holder shall have furnished to the Company in writing, or (b) if to the Company, at 1299 Orleans Dr., Sunnyvale, CA 94089, facsimile: (408) 543-1501, attention: Chief Executive Officer or at such other address or number as the Company shall have furnished to the Holder in writing.

All such notices and communications shall be effective (a) when sent by Federal Express or other overnight service of recognized standing, on the business day following the deposit with such service; (b) when mailed, by registered or certified mail, first class postage prepaid and addressed as aforesaid through the United States Postal Service or Canada Post, four days after being deposited in the mail; (c) when delivered by hand, upon delivery; and (d) when faxed, upon confirmation of receipt.

12.7 Amendments. This Warrant may be amended and the observance of any term of this Warrant may be waived only with the written consent of the Company and the Holder.

12.8 Severability. In case any provision of this Agreement shall be declared invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the Transactions are consummated as originally contemplated to the fullest extent possible.

12.9 Counterparts. This Agreement may be executed in any number of counterparts each of which shall be an original, but all of which together shall constitute one instrument.

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IN WITNESS WHEREOF, the Company and the Holder have caused the Warrant to be executed as of the effective date of this Warrant set forth above.

BLOOM ENERGY CORPORATION
By:	/s/ William H. Kurtz
	Name: William H. Kurtz
	Title: Chief Financial and Commercial Officer

AGREED AND ACCEPTED:
PE12PXVC (US DIRECT) LTD.
By:	/s/ David Goerz
Name:	David Goerz
Title:	Director
Address:	#1100 – 10830 Jasper Avenue Edmonton, AB T5J 2B3

EXHIBIT A

NOTICE OF EXERCISE

To: BLOOM ENERGY CORPORATION

(1) The undersigned hereby elects to purchase              shares of Series F Preferred Stock (“Series F Preferred Stock”) of Bloom Energy Corporation pursuant to the terms of the attached Agreement and Warrant to Purchase Series F Preferred Stock (the “Warrant”) for an aggregate Exercise Price of              , and tenders herewith payment of the Exercise Price for such shares in full in the following manner:                      .

(2) The undersigned hereby confirms and acknowledges that the representations and warranties set forth in Section 8 of the Warrant remain true and correct concerning the Holder as of the date hereof, that the shares of Series F Preferred Stock are being acquired solely for the account of the undersigned and not as a nominee for any other party, and for investment, and that the undersigned will not offer, sell, or otherwise dispose of any such shares of Series F Preferred Stock except under circumstances that will not result in a violation of the Securities Act of 1933, as amended, or any state securities laws.

(3) Please issue a certificate or certificates representing said shares of Series F Preferred Stock in the name of the undersigned or in such other name as is specified below. A new warrant evidencing the remaining shares of Warrant Shares covered by the Warrant, but not yet subscribed for and purchased, if any, should be issued in the name set forth below.

PE12PXVC (US DIRECT) LTD.

Print Name

Signature

Title

Date

EXHIBIT B

NET EXERCISE NOTICE

To: BLOOM ENERGY CORPORATION

(1) The undersigned hereby elects to convert the attached Warrant into              shares of Series F Preferred Stock (“Series F Preferred Stock”) of Bloom Energy Corporation pursuant to the terms of the attached Agreement and Warrant to Purchase Series F Preferred Stock (the “Warrant”) for an aggregate Exercise Price of              , in the form of a cashless exercise in accordance with Section 4 of the Warrant.

(2) In converting such Warrant, the undersigned hereby confirms and acknowledges that the representations and warranties set forth in Section 8 of the Warrant remain true and correct concerning the Holder as of the date hereof, that the shares of Series F Preferred Stock are being acquired solely for the account of the undersigned and not as a nominee for any other party, and for investment, and that the undersigned will not offer, sell, or otherwise dispose of any such shares of Series F Preferred Stock except under circumstances that will not result in a violation of the Securities Act of 1933, as amended, or any state securities laws.

(3) Please issue a certificate or certificates representing said shares of Series F Preferred Stock in the name of the undersigned or in such other name as is specified below. A new warrant evidencing the remaining shares of Warrant Shares covered by the Warrant, but not yet subscribed for and purchased, if any, should be issued in the name set forth below.

PE12PXVC (US DIRECT) LTD.

Print Name

Signature

Title

Date

EX-4

Exhibit 4.13

THIS WARRANT AND THE SHARES ISSUABLE HEREUNDER HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD, PLEDGED, OR OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION THEREOF UNDER SUCH ACT OR PURSUANT TO RULE 144 OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE CORPORATION AND ITS COUNSEL, THAT SUCH REGISTRATION IS NOT REQUIRED.

WARRANT TO PURCHASE PREFERRED STOCK

Issuer:                        BLOOM ENERGY CORPORATION, a Delaware corporation

Number of Shares:    7,764 Shares (or as otherwise determined in Section 1 below)

Class of Stock:          Series G Preferred Stock, $ .0001 par value

Exercise Price:          $25.76 per Share

Issue Date:                December 31, 2012

Expiration Date:       The tenth anniversary of the Issue Date.

THIS WARRANT CERTIFIES THAT, for the agreed upon value of $1.00 and for other good and valuable consideration, including the execution and delivery of that certain Master Loan and Security Agreement No. BLOOX, dated as of December 31 , 2012, (the “Loan Agreement” and each loan thereunder, a “Loan”), this Warrant is issued to ATEL VENTURES, INC., in its capacity as Trustee for its assignee affiliated funds identified in that certain Amendment and Restatement of Inter-Company Trust Agreement for Warrants dated as of January 1,2007, as amended by Amendment No. 1 dated as of March 15,2010, and as may be further amended and restated from time to time, and deemed effective as of July 20,2004 (“Holder”), by BLOOM ENERGY CORPORATION, a Delaware corporation (the “Company”).

1. ISSUANCE.

Subject to the terms and conditions hereinafter set forth, the Holder is entitled upon surrender of this Warrant and the duly executed subscription form annexed hereto as Appendix 1, at the office of the Company, 1299 Orleans Drive, Sunnyvale, CA 94089, or such other office as the Company shall notify the Holder of in writing, to purchase from the Company up to 7,764 shares of fully paid and non-assessable shares (the “Shares”) of the Company’s Series G Preferred Stock, $.0001 par value per share (the “Series G Preferred Stock”), at a purchase price per Share of $25.76 (the “Exercise Price”). This Warrant may be exercised in whole or in part at any time and from time to time until 5:00 PM, Pacific time, on the Expiration Date set forth above, and shall be void thereafter. Until such time as this Warrant is exercised in full or expires, the Exercise Price and the Shares are subject to adjustment from time to time as hereinafter provided.

2. EXERCISE

(a) Method of Exercise. Holder may exercise this Warrant by delivering this Warrant, together with a duly executed Notice of Exercise in substantially the form attached as Appendix 1 hereto, to the principal office of the Company. Unless Holder is exercising the conversion right set forth in Section 2(b), Holder shall also deliver to the Company a check for the aggregate Exercise Price for the Shares being purchased.

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(b) Conversion Right. In lieu of exercising this Warrant as specified in Section 2(a), Holder may from time to time convert this Warrant, in whole or in part, into a number of Shares determined as follows:

X= Y(A-B)     A
where:	X = the number of Shares to be issued to the Holder.
	Y= the number of Shares with respect to which this       Warrant is being exercised.
	A= the Fair Market Value (as determined pursuant to       Section 2 (c) below) of one Share.
	B= the Exercise Price.

(c) Fair Market Value.

(i) If shares of Common Stock are traded on a nationally recognized securities exchange or over the counter market, the fair market value of one Share shall be the average closing price of a share of Common Stock over the five day trading period immediately preceding the date of Holder’s Notice of Exercise to the Company (or such lesser number of trading days as the stock has been publicly traded). Notwithstanding the foregoing, in the event this Warrant is exercised in connection with the Company’s initial public offering of Common Stock, the fair market value per share shall be the product of (i) the per share offering price to the public of the Company’s initial public offering, and (ii) the number of shares of Common Stock into which each share of Series G Preferred Stock is convertible at the time of exercise.

(ii) If shares of Common Stock are not traded on a nationally recognized securities exchange or over the counter market, the Board of Directors of the Company shall determine the fair market value of a share of Common Stock in its reasonable good faith judgment. The foregoing notwithstanding, if Holder advises the Board of Directors in writing that Holder disagrees with such determination, then the Company and Holder shall promptly agree upon a reputable investment banking firm to undertake such valuation. If the valuation of such investment banking firm is greater than that determined by the Board of Directors by five percent (5%) or more, then all fees and expenses of such investment banking firm shall be paid by the Company. In all other circumstances, such fees and expenses shall be paid by Holder. The determination of any such investment banking firm shall be conclusive in any event.

(d) Delivery of Certificate and New Warrant. Promptly after Holder exercises or converts this Warrant, the Company shall deliver to Holder certificates for the Shares acquired and, if this Warrant has not been fully exercised or converted and has not expired, a new Warrant representing the right to purchase the Shares not so acquired.

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(e) Replacement of Warrants. On receipt of evidence reasonably satisfactory to the Company of the loss, theft, destruction or mutilation of this Warrant and, in the case of loss, theft or destruction, on delivery of an indemnity agreement reasonably satisfactory in form and amount to the Company or, in the case of mutilation, on surrender and cancellation of this Warrant, the Company at its expense shall execute and deliver, in lieu of this Warrant, a new warrant of like tenor.

(f) Assumption on Sale, Merger, or Consolidation of the Company.

(i) “Acquisition”. For the purpose of this Warrant, “Acquisition” means any sale, transfer, exclusive license, or other disposition of all or substantially all of the assets of the Company, or any acquisition, reorganization, consolidation or merger of the Company where the holders of the Company’s outstanding voting equity securities immediately prior to the transaction beneficially own less than 50.01% of the outstanding voting equity securities of the surviving or successor entity immediately following the transaction, or a reverse triangular merger in which the Company survives as a wholly owned subsidiary of the acquiring company and the holders of the Company’s outstanding voting equity securities prior to the reverse triangular merger remain the same.

(ii) Treatment of Warrant at Acquisition.

(A) Holder agrees that, in the event of an Acquisition in which the sole consideration is cash, either (1) Holder shall exercise its conversion or purchase right under this Warrant and such exercise will be deemed effective immediately prior to the consummation of such Acquisition, or (2) if Holder elects not to exercise this Warrant, this Warrant will expire upon the consummation of such Acquisition. The Company shall provide the Holder with written notice of its request relating to the foregoing (together with such reasonable information as the Holder may request in connection with such contemplated Acquisition giving rise to such notice), which is to be delivered to Holder not less than ten (10) days prior to the closing of the proposed Acquisition. In the event that, on the date of the Acquisition described in this Section 2(f)(ii)(A) the Fair Market Value of one Share (or other security issuable upon the exercise hereof) as determined in accordance with Section 2( c) above is greater than the Exercise Price in effect on such date, then this Warrant shall automatically be deemed on and as of such date to be converted pursuant to Section 2(b) above as to all Shares (or such other securities) for which it shall not previously have been exercised or converted, and the Company shall promptly deliver a certificate representing the Shares (or such other securities) issued upon such conversion to the Holder.

(B) Holder agrees that, in the event of an Acquisition that is a sale of all or substantially all of the Company’s assets (and only its assets) (an “Asset Sale”), either (1) Holder shall exercise its conversion or purchase right under this Warrant and such exercise will be deemed effective immediately prior to the consummation of such Acquisition or (2) if Holder elects not to exercise this Warrant, this Warrant will continue until the Expiration Date if the Company continues as a going concern following the closing of such Asset Sale. The Company shall provide the Holder with written notice of its request relating to the foregoing (together with such reasonable information as the Holder may request in connection with such contemplated Acquisition giving rise to such notice), which is to be delivered to Holder not less than ten (10) days prior to the closing of the proposed Asset Sale.

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(C) Holder agrees that upon the closing of any Acquisition (other than those described in (A) and (B) of this Section 2(f)(ii), including Acquisitions in which the sole consideration is shares of a class or series of stock of a company that is privately or publicly traded, or any combination of cash or such shares of stock, the Company shall either:

(1) cause the successor entity to assume the obligations of this Warrant, and this Warrant shall be exercisable for the same securities and property as would be payable for the Shares issuable upon exercise of the unexercised portion of this Warrant as if such Shares were outstanding on the record date for the Acquisition and its subsequent closing (in such instance, the Warrant Price and/or numbers of Shares shall be adjusted accordingly), or

(2) purchase this Warrant on the closing date of the Acquisition for an amount in cash equal to the greater of (i) the product of (A) the number of Shares issuable upon exercise of the unexercised portion of this Warrant, multiplied by (B) the excess (if any) of the Fair Market Value of a Warrant Share over the Exercise Price or (ii) three times (3x) the Exercise Price less the Exercise Price. The Fair Market Value of a Warrant share shall be determined as set forth in Section 2(c).

(g) Conversion or Redemption of Series G Preferred Stock. Should all of the Company’s Series G Preferred Stock be, or if outstanding would be, at any time prior to the expiration of this Warrant or any portion thereof, redeemed or converted into shares of the Company’s Common Stock in accordance with Section 4 of the Charter, then this Warrant shall become immediately exercisable prior to such event for that number of shares of the Common Stock that would have been received if this Warrant had been exercised in full and the Series G Preferred Stock received thereupon had been simultaneously converted immediately prior to such event, and the Exercise Price shall immediately be adjusted to equal the quotient obtained by dividing (x) the aggregate Exercise Price of the maximum number of shares of Series G Preferred Stock for which this Warrant was exercisable immediately prior to such conversion or redemption, by (y) the number of shares of Common Stock for which this Warrant is exercisable immediately after such conversion or redemption. For purposes of the forgoing, the “Charter” shall mean the Amended and Restated Certificate of Incorporation as amended and /or restated and effective immediately prior to the redemption or conversion of all of the Company’s Series G Preferred Stock.

3. ADJUSTMENTS.

(a) Stock Dividends, Splits, Etc. If the Company declares or pays a dividend on the outstanding shares of Series G Preferred Stock, payable in Common Stock or other securities, then upon exercise of this Warrant, for each Share acquired, Holder shall receive, without cost to Holder, the total number and kind of securities to which Holder would have been entitled had Holder owned the Shares of record as of the date the dividend occurred. If the outstanding Series G Preferred Stock is subdivided into a greater number of shares, the Exercise Price shall be proportionately decreased and the number of Shares shall be proportionately increased.

(b) Reclassification, Exchange or Substitution. Upon any reclassification, exchange, substitution, or other event that results in a change of the number and/or class of the securities issuable upon exercise or conversion of this Warrant, Holder shall be entitled to receive, upon exercise or conversion of this Warrant, the number and kind of securities and property that Holder would have received for the Shares if this Warrant had been exercised immediately before

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such reclassification, exchange, substitution, or other event. The Company or its successor shall promptly issue to Holder a new Warrant for such new securities or other property. The new Warrant shall provide for adjustments which shall be as nearly equivalent as may be practicable to the adjustments provided for in this Section 3 including, without limitation, adjustments to the Exercise Price and to the number of securities or property issuable upon exercise of the new Warrant. The provisions of this Section 3(b) shall similarly apply to successive reclassifications, exchanges, substitutions, or other events.

(c) Adjustments for Combinations, Etc. If the outstanding shares of Series G Preferred Stock are combined or consolidated, by reclassification or otherwise, into a lesser number of shares, the Exercise Price shall be proportionately increased and the number of Shares shall be proportionately decreased.

(d) No Impairment. The Company shall not, by amendment of the Charter or Bylaws, or through a reorganization, transfer of assets, consolidation, merger, dissolution, issue, or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms to be observed or performed under this Warrant by the Company, but shall at all times in good faith assist in carrying out of all the provisions of this Section 3 and in taking all such action as may be necessary or appropriate to protect Holder’s rights under this Article against impairment.

(e) Fractional Shares. No fractional Shares shall be issuable upon exercise or conversion of this Warrant and the number of Shares to be issued shall be rounded down to the nearest whole Share. If a fractional Share interest arises upon any exercise or conversion of this Warrant, the Company shall eliminate such fractional Share interest by paying Holder an amount computed by multiplying such fractional interest by the Fair Market Value (determined in accordance with Section 2(c) above) of one Share.

(f) Certificate as to Adjustments. Upon each adjustment of the Exercise Price, number of Shares or class of security for which this Warrant is exercisable, the Company, at its expense, shall promptly compute such adjustment, and furnish Holder with a certificate of its chief financial officer setting forth such adjustment and the facts upon which such adjustment is based. The Company shall, upon written request, furnish Holder a certificate setting forth the Exercise Price, number of Shares class of security for which this Warrant is exercisable in effect upon the date thereof and the series of adjustments leading to such Exercise Price, number of Shares and class of security.

4. REPRESENTATIONS AND COVENANTS OF THE COMPANY.

(a) Representations and Warranties. The Company hereby represents and warrants to Holder as follows:

(i) All Shares which may be issued upon the due exercise of this Warrant shall, upon issuance, be duly authorized, validly issued, fully paid and non-assessable, and free of any liens and encumbrances except for restrictions on transfer provided for herein or under applicable federal and state securities laws.

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(ii) The Company covenants that it shall at all times cause to be reserved and kept available out of its authorized and unissued shares such number of shares of its Preferred Stock and other securities as will be sufficient to permit the exercise in full of this Warrant and the conversion or exchange of such Preferred Stock into or for such other securities.

(iii) The execution and delivery by the Company of this Warrant and the performance of all obligations of the Company hereunder, including the issuance to Holder of the right to acquire the shares of Preferred Stock, have been duly authorized by all necessary corporate action on the part of the Company, and the Loan Agreement and this Warrant are not inconsistent with the Company’s Charter or Bylaws, do not contravene any law or governmental rule, regulation or order applicable to it, do not and will not contravene any provision of, or constitute a default under, any indenture, mortgage, contract or other instrument to which it is a party or by which it is bound, and the Loan Agreement and this Warrant constitute legal, valid and binding agreements of the Company, enforceable in accordance with their respective terms.

(iv) No consent or approval of, giving of notice to, registration with, or taking of any other action in respect of any state, Federal or other governmental authority or agency is required with respect to the execution, delivery and performance by the Company of its obligations under this Warrant, except for the filing of notices pursuant to Regulation D under the 1933 Act and any filing required by applicable state securities law, which filings will be effective by the time required thereby.

(b) Notice of Certain Events. If the Company proposes at any time (a) to declare any dividend or distribution upon its Common Stock, whether in cash, property, stock, or other securities and whether or not a regular cash dividend; (b) to offer for subscription pro rata to the holders of Common Stock any additional shares of stock of any class or series or other rights; (c) to effect any reclassification or recapitalization of its Common Stock; (d) to merge or consolidate with or into any other corporation, or sell, lease, license, or convey all or substantially all of its assets, or to liquidate, dissolve or wind up; or (e) offer holders of registration rights the opportunity to participate in an underwritten public offering of the company’s securities for cash, then, in connection with each such event, the Company shall give Holder (1) at least 20 days prior written notice of the date on which a record will be taken for such dividend, distribution, or subscription rights (and specifying the date on which the holders of securities of the Company shall be entitled to receive such dividend, distribution or rights) or for determining rights to vote, if any, in respect of the matters referred to in (c) and (d) above; (2) in the case of the matters referred to in (c) and (d) above at least 20 days prior written notice of the date when the same will take place (and specifying the date on which the holders of securities of the Company will be entitled to exchange their securities of the Company for securities or other property deliverable upon the occurrence of such event); and (3) in the case of the matter referred to in (e) above, the same notice as is given to the holders of such registration rights.

(c) Information Rights. So long as the Holder holds this Warrant and/or any of the Shares, the Company shall deliver to the Holder (i) promptly after mailing, copies of all notices or other written communications to the stockholders of the Company, (ii) if the subject Loan(s) under the Loan Agreement no longer are outstanding, then upon Holder’s request, within one hundred and eighty (180) days after the end of each fiscal year of the Company, the annual audited financial statements of the Company certified by independent public accountants of recognized standing and (iii) if the subject Loan(s) under the Loan

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Agreement no longer are outstanding, then upon Holder’s request, within forty five (45) days after the end of each of the first three quarters of each fiscal year, the Company’s quarterly, unaudited financial statements; provided, however, that the Company shall have no obligation to provide financial statements pursuant to (iii) above at any time when the per share purchase price of the equity securities sold in the Company’s latest bona fide equity financing with the purpose of raising capital is equal to or greater than two times the Exercise Price (as adjusted for any stock splits, stock dividends or the like). Anything in this Agreement to the contrary notwithstanding, no Holder by reason of this Agreement shall have access to any trade secrets or classified information of the Company. The Company shall not be required to comply with any information rights of hereunder in respect of any Holder whom the Company reasonably determines to be a competitor or an officer, employee, director or holder of more than ten percent (10%) of a competitor. Holder acknowledges that the information received by them pursuant to this Warrant may be confidential and for its use only, and it will not use such confidential information in violation of the Exchange Act or reproduce, disclose or disseminate such information to any other person (other than its employees or agents having a need to know the contents of such information, and its attorneys).

(d) Registration Under Securities Act of 1933, as Amended. The Company agrees that the Shares shall be entitled to certain registration rights (“Registration Rights”), as set forth in that certain Eighth Amended and Restated Registration Rights Agreement dated as of June 30, 2011, among the Company and the Company’s stockholders named therein, (as may be amended, the “Registration Rights Agreement”). The Company agrees to amend the Registration Rights Agreement to make Holder a party thereto for such purpose. Failure to provide such Registration Rights to Holder within ninety (90) days of the date of the first Loan under the Loan Agreement, shall, at Holder’s option, be an Event of Default under the Loan Agreement. Notwithstanding anything to the contrary in the Registration Rights Agreement, such registration rights shall be pari passu with the rights of all other Holders, as defined therein, and the Company shall obtain the requisite prior written consent of the Holders to ensure Holder receives such pari passu registration rights. Upon becoming a party to the Registration Rights Agreement, Holder agrees to be bound by the terms and conditions thereof. The Company represents and warrants to Holder that the Company’s execution, delivery and performance of the Registration Rights Agreement (a) has been duly authorized by all necessary corporate action of the Company’s Board of Directors and stockholders, (b) does not and will not violate the Company’s Charter or Bylaws, each as amended, (c) does not and will not violate or cause a breach or default (or an event which with the passage oftime or the giving of notice or both, would constitute a breach or default) under any agreement, instrument, mortgage, deed of trust or other arrangement to which the Company is a party or to or by which it or any of its assets is subject or bound, and (d) does not require the approval, consent or waiver of or by any shareholder, registration rights holder or other third party which approval, consent or waiver has not been obtained as of the date of issuance of this Warrant.

(e) Termination of Covenants. The covenants set forth in Sections 4(b) and 4(c) shall terminate and be of no further force and effect after the closing of the Company’s first public offering of the Company’s Common Stock registered under the Securities Act of 1933, as amended, or an Acquisition.

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5. REPRESENTATIONS AND COVENANTS OF HOLDER.

(a) Representations and Warranties. Holder hereby represents and warrants to the Company as follows:

(i) The right to acquire Shares and the Common Stock issuable upon conversion of the Shares will be acquired for investment purposes and not with a view to the sale or distribution of any part thereof, and Holder has no present intention of selling or engaging in any public distribution of the same in violation of the 1933 Act.

(ii) Holder understands (A) that this Warrant, the Shares issuable upon exercise of this Warrant and the Common Stock issuable upon conversion of the Shares are not registered under the 1933 Act or qualified under applicable state securities laws on the ground that the issuance contemplated by this Warrant will be exempt from the registration and qualifications requirements thereof, and (B) that the Company’s reliance on such exemption is predicated on the representations set forth in this Section 5.

(iii) In no event will Holder make a disposition of any of Holder’s rights to acquire Shares or Shares issuable upon exercise of such rights or the Common Stock issuable upon conversion of the Shares unless and until (i) Holder shall have notified the Company in writing of the proposed disposition, and (ii) the transferee agrees to be bound in writing to the applicable terms and conditions of this Warrant, and (iii) if the Company request, Holder shall have furnished the Company with an opinion of counsel satisfactory to the Company and the Company’s counsel to the effect that (A) appropriate action necessary for compliance with the 1933 Act has been taken, or (B) an exemption from the registration requirements of the 1933 Act is available. Notwithstanding the foregoing, the restrictions imposed upon the transferability of any of Holder’s rights to acquire Shares or Shares issuable on the exercise of such rights or the Common Stock issuable upon conversion of the Shares do not apply to transfers from the beneficial owner of any of the aforementioned securities to its nominee or from such nominee to its beneficial owner, and shall terminate as to any particular share of Shares when (1) such security shall have been effectively registered under the 1933 Act and sold by the holder thereof in accordance with such registration or (2) such security shall have been sold without registration in compliance with Rule 144 under the 1933 Act, or (3) a letter shall have been issued to the Company at Holder’s request by the staff of the Securities and Exchange Commission or a ruling shall have been issued to the Company at Holder’s request by such Commission stating that no action shall be recommended by such staff or taken by such Commission, as the case may be, if such security is transferred without registration under the 1933 Act in accordance with the conditions set forth in such letter or ruling and such letter or ruling specifies that no subsequent restrictions on transfer are required. Whenever the restrictions imposed hereunder shall terminate, as hereinabove provided, the holder of a share of Shares then outstanding as to which such restrictions have terminated shall be entitled to receive from the Company, without expense to such holder, one or more new certificates for the Warrant or for such shares of Shares not bearing any restrictive legend referring to 1933 Act registration or exemption.

(iv) Holder has such knowledge and experience in financial and business matters and knowledge of the Company’s business affairs and financial condition as to be capable of evaluating the merits and risks of Holder’s investment, and have the ability to bear the economic risks of Holder’s investment.

(v) Holder understands that if the Company does not register with the Securities and Exchange Commission pursuant to Section 12 of the 1934 Act (the “1934 Act”), or file reports pursuant to Section 15(d), of the 1934 Act, or if a registration statement covering the securities under the 1933 Act is not in effect when Holder desire to sell (i)

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the rights to purchase Shares pursuant to this Warrant, or (ii) the Shares issuable upon exercise of the right to purchase, or (iii) the Common Stock issuable upon conversion of the Shares, Holder may be required to hold such securities for an indefinite period. Holder also understand that any sale of Holder’s right to purchase Shares or Shares or Common Stock issuable upon conversion of the Shares, which might be made by it in reliance upon Rule 144 under the 1933 Act may be made only in accordance with the terms and conditions of that Rule.

(vi) Holder is an “accredited investor” within the meaning of the Securities and Exchange Rule 501 of Regulation D of the 1933 Act, as presently in effect.

(vii) Holder’s domicile for purposes of state securities laws is in the State of California.

(b) Lockup. Holder and each of Holder’s transferees agrees, in connection with the first registration of the Company’s securities under the 1933 Act, upon the Company’s request or the request of the underwriters managing any underwritten offering of the Company’s securities, not to (a) 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 Us or are thereafter acquired) or (b) 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 (a) or (b) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise, without the Company’s prior written consent or the prior written consent of such underwriters, as the case may be, for such period of time (not to exceed 180 days or such other period as may be requested by the Company or the underwriters to accommodate regulatory restrictions on (i) the publication or other distribution of research reports and (ii) analyst recommendations and opinions, including, but not limited to, the restrictions contained in NASD Rule 2711(f)(4) or NYSE Rule 472(f)(4), or any successor provisions or amendments thereto) from the effective date of such registration as the Company or the underwriters may specify; provided, however, that all (x) the Company’s officers and directors and (y) the Company’s stockholders holding three percent (3%) or more of the Company’s total outstanding Common Stock (treating all the Company’s convertible, exercisable and exchangeable securities on an as-if converted to Common Stock basis) are bound by agreements that are no less restrictive. The underwriters in connection with the Company’s initial public offering are intended third party beneficiaries of this Lock-Up Agreement and shall have the right, power and authority to enforce the provisions hereof as though they were a party hereto. Holder agrees that the Company may instruct the Company’s transfer agent to place stop-transfer notations in its records to enforce the provisions of this Lock-Up Agreement until the end of such period.

5. MISCELLANEOUS.

(a) Automatic Conversion upon Expiration. In the event that, upon the Expiration Date, the Fair Market Value of one Share (or other security issuable upon the exercise hereof) as determined in accordance with Section 2( c) above is greater than the Exercise Price in effect on such date, then this Warrant shall automatically be deemed on and as of such date to be converted pursuant to Section 2(b) above as to all Shares (or such other securities) for which it shall not previously have been exercised or converted, and the Company shall promptly deliver a certificate representing the Shares (or such other securities) issued upon such conversion to the Holder.

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(b) Legends. This Warrant and the Shares (and the securities issuable, directly or indirectly, upon conversion of the Shares, if any) shall be imprinted with a legend in substantially the following form:

THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) OR REGISTERED OR QUALIFIED UNDER ANY STATE SECURITIES LAWS. THESE SECURITIES MAY NOT BE OFFERED, SOLD, PLEDGED OR TRANSFERRED UNLESS (I) THERE IS AN EFFECTIVE REGISTRATION STATEMENT COVERING SUCH OFFER, SALE OR TRANSFER OR (II) THERE IS AN OPINION OF COUNSEL, REASONABLY SATISFACTORY TO THE COMPANY, THAT EXEMPTIONS FROM THE REGISTRATION, QUALIFICATION AND PROSPECTUS DELIVERY REQUIREMENTS OF THE SECURITIES ACT AND OF ANY APPLICABLE STATE SECURITIES LAWS FOR SUCH OFFER, SALE OR TRANSFER ARE AVAILABLE.

THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A LOCK-UP PERIOD FOLLOWING THE EFFECTIVE DATE OF THE COMPANY’S INITIAL UNDERWRITTEN PUBLIC OFFERING AND MAY NOT BE SOLD OR OTHERWISE DISPOSED OF BY THE HOLDER WITHOUT THE CONSENT OF THE COMPANY OR THE MANAGING UNDERWRITER.

(c) Compliance with Securities Laws on Transfer. This Warrant and the Shares (and the securities issuable, directly or indirectly, upon conversion of the Shares, if any) may not be transferred or assigned in whole or in part without compliance with applicable federal and state securities laws by the transferor and the transferee (including, without limitation, the delivery of investment representation letters). The Company shall not require Holder to provide an opinion of counsel if the transfer is to an affiliate of Holder or if (a) there is no material question as to the availability of current information as referenced in Rule 144(c), (b) Holder represents that it has complied with Rule 144( d) and (e) in reasonable detail, (c) the selling broker represents that it has complied with Rule 144(f), and (d) the Company is provided with a copy of Holder’s notice of proposed sale.

(d) Transfer Procedure. Subject to the provisions of Section 5(d), Holder may transfer all or part of this Warrant and/or the Shares issuable upon exercise of this Warrant (or the securities issuable, directly or indirectly, upon conversion of the Shares, if any) at any time to any affiliate of Holder, or to any other transferee by giving the Company notice of the portion of the Warrant being transferred setting forth the name, address and taxpayer identification number of the transferee and surrendering this Warrant to the Company for reissuance to the transferee(s) (and Holder if applicable). Holder agrees not to transfer this Warrant to a competitor of the Company as determined in good faith by the Company’s Board of Directors.

(e) Notices. All notices and other communications from the Company to the Holder, or vice versa, shall be deemed delivered and effective when given personally or sent by electronic facsimile transmission, express overnight courier service, or mailed by first-class registered or certified mail, postage prepaid, at such address as may have been furnished to the Company or the Holder, as the case may be, in writing by the Company or such holder from time to time, but in all cases, unless instructed in writing otherwise, the Company shall deliver a copy of all notices to Holder at 600 Montgomery Street, 9^th Floor, San Francisco CA 94111, Attention: Associate General Counsel.

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(f) Waiver. This Warrant and any term hereof may be changed, waived, discharged or terminated only by an instrument in writing signed by the party against which enforcement of such change, waiver, discharge or termination is sought.

(g) Remedies. In the event of any default hereunder, the non-defaulting party may proceed to protect and enforce its rights either by suit in equity and/or by action at law, including, but not limited to, an action for damages as a result of any such default, and/or an action for specific performance for any default where the non-defaulting party will not have an adequate remedy at law and where damages will not be readily ascertainable. The defaulting party expressly agrees that it shall not oppose an application by the non-defaulting party or any other person entitled to the benefit of this Warrant requiring specific performance of any or all provisions hereof or enjoining the defaulting party from continuing to commit any such breach of this Warrant.

(h) Attorneys’ Fees. In the event of any dispute between the parties concerning the terms and provisions of this Warrant, the party prevailing in such dispute shall be entitled to collect from the other party all costs incurred in such dispute, including reasonable attorneys’ fees.

(i) Governing Law. This Warrant shall be governed by and construed in accordance with the laws of the State of California, without giving effect to its principles regarding conflicts of law.

(j) Venue. All judicial proceedings arising in or under or related to this Warrant may be brought in any state or federal court of competent jurisdiction located in the State of California. By execution and delivery of this Warrant, each party hereto generally and unconditionally: (i) consents to personal jurisdiction in San Mateo County, State of California; (ii) waives any objection as to jurisdiction or venue in San Mateo County, State of California; (iii) agrees not to assert any defense based on lack of jurisdiction or venue in the aforesaid courts; and (iv) irrevocably agrees to be bound by any judgment rendered thereby in connection with this Warrant. Service of process on any party hereto in any action arising out of or relating to this agreement shall be effective if given in accordance with the requirements for notice set forth in this Section, and shall be deemed effective and received as set forth therein. Nothing herein shall affect the right to serve process in any other manner permitted by law or shall limit the right of either party to bring proceedings in the courts of any other jurisdiction.

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IN WITNESS WHEREOF, the Company has caused this Warrant to Purchase Preferred Stock to be executed by its duly authorized representative as of the date first above written.

COMPANY BLOOM ENERGY CORPORATION
By:	/s/ Martin J Collins
Name:	Martin J Collins
Title:	VP Corp Dev

HOLDER ATEL VENTURES, INC., Trustee
By:	/s/ Paritosh K. Choksi
Name:	Paritosh K. Choksi
Title:	Executive Vice President

ATEL LEGAL DEPARTMENT

APPROVED

AS TO FORM

BY:

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APPENDIX 1

NOTICE OF EXERCISE

1. The undersigned hereby elects to purchase              shares of the                      stock of BLOOM ENERGY CORPORATION pursuant to Section 2(a) of the attached Warrant, and tenders herewith payment of the Exercise Price of such shares in full.

1. The undersigned hereby elects to convert the attached Warrant into Shares in the manner specified in Section 2(b) of the attached Warrant. This conversion is exercised with respect to                  shares of the                      Stock of BLOOM ENERGY CORPORATION.

[Strike paragraph that does not apply.]

2. Please issue a certificate or certificates representing said shares in the name of the undersigned or in such other name as is specified below:

(Name)

(Address)

3. The undersigned represents it is acquiring the shares solely for its own account and not as a nominee for any other party and not with a view toward the resale or distribution thereof except in compliance with applicable securities laws.

(Date)	(Signature)
(Signature)

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EX-4

Exhibit 4.14

THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE HEREUNDER HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 AS AMENDED (the “1933 ACT”). OR ANY STATE SECURITIES LAWS. THEY MAY NOT BE SOLD. OFFERED FOR SALE PLEDGED. OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO YOU THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE 1933 ACT. OR ANY APPLICABLE STATE SECURITIES LAWS.

PLAIN ENGLISH WARRANT AGREEMENT

This is a PLAIN ENGLISH WARRANT AGREEMENT dated September 27, 2012 by and between BLOOM ENERGY CORPORATION, a Delaware corporation, and TRIPLEPOINT CAPITAL LLC, a Delaware limited liability company.

The words “We”, “Us”, or “Our” refer to the warrant holder, which is TRIPLEPOINT CAPITAL LLC. The words “You” or “Your” refers to the issuer, which is BLOOM ENERGY CORPORATION, and not to any individual. The words “the Parties” refers to both TRIPLEPOINT CAPITAL LLC and BLOOM ENERGY CORPORATION. This Amended and Restated Plain English Warrant Agreement may be referred to as the “Warrant Agreement”.

The Parties have entered into a Plain English Equipment Loan and Security Agreement dated as of December 15, 2011 and a First Amendment to Plain English Equipment Loan and Security Agreement dated as of September 27, 2012 (collectively, the “Loan Agreement”).

In consideration of such Loan Agreement, the Parties agree to the following mutual agreements and conditions set forth below:

WARRANT INFORMATION
Effective Date September 27, 2012	Warrant Number 0674-W-02		Loan Facility 0674-LO-02H/-02S
Warrant Coverage $300,000 (3% of $10,000,000); additional warrant coverage as set forth in Section 1.	Number of Shares 11,646 plus additional shares as set forth in Section 1. The Number of Shares is subject to adjustment as set forth in this Warrant Agreement.	Price Per Share $25.76 subject to adjustment as set forth in this Warrant Agreement	Type of Stock Series G Preferred Stock: subject to the provisions of Section 1.

OUR CONTACT INFORMATION
Name TriplePoint Capital LLC	Address For Notices 2755 Sand Hill Road, Ste. 150 Menlo Park, CA 94025 Tel: (650) 854-2090 Fax: (650) 854-1850	Contact Person Sajal Srivastava, COO Tel: (650) 233-2102 Fax: (650) 854-1850 email: legal@triplepointcapital.com
YOUR CONTACT INFORMATION
Customer Name Bloom Energy Corporation	Address For Notices 1252 Orleans Drive Sunnyvale. CA 94089	Contact Person William Kurtz, CFO Tel: (408) 543-1550 Fax: (408) 543-1501 email: wkurtz@bloomenergy.com

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1. WHAT YOU AGREE TO GRANT US

You grant to Us and We are entitled, upon the terms and subject to the conditions set forth in this Warrant Agreement, to purchase from You, at a price per share equal to the Exercise Price, that number of fully paid and non-assessable shares of Your Warrant Stock equal to Three Hundred Thousand Dollars ($300,000), divided by the Exercise Price (rounded down to the nearest whole share).

In addition, You grant to Us and We are entitled, upon the terms and subject to the conditions set forth in this Warrant Agreement, to purchase from You, at a price per share equal to the Exercise Price, an additional number of fully paid and non-assessable shares of Your Warrant Stock (rounded down to the nearest whole share) equal to:

Þ one-half percent (0.5%) of any amounts advanced under Part 2 of the Loan Agreement, divided by the Exercise Price, if You choose Option B for such Advance under the Loan Agreement; or

Þ one percent (1.0%) of any amounts advanced under Part 2 of the Loan Agreement, divided by the Exercise Price, if You choose Option C for such Advance under the Loan Agreement.

The number of shares of Warrant Stock and the Exercise Price of such Warrant Stock are subject to adjustment as provided in Section 4 hereof.

For purposes of this Warrant Agreement, the following capitalized terms have the meanings given below:

“Exercise Price” means the lower of (a) $25.76 and (b) the lowest per share price for which Your preferred stock is sold in the Next Round.

“Next Round” means the next bona fide round of equity financing in which You issue and sell shares of your preferred stock for aggregate gross cash proceeds of at least $1,000,000 (excluding any amounts received upon conversion or cancellation of indebtedness) subsequent to the Effective Date.

“Warrant Stock” means (a) the class and series of Your preferred stock issued in the Next Round, if the lowest per share price for which such preferred stock is sold in the Next Round is less than $25.76 or (b) in all other cases, Your Series G Preferred Stock. For avoidance of doubt, if this Warrant Agreement is exercised prior to the Next Round then this Warrant Agreement shall be exercisable for Your Series G Preferred Stock.

The Parties agree that this Warrant Agreement to purchase the Warrant Stock has a fair market value equal to $100 and that $100 of the issue price of the investment will be allocable to the Warrant Agreement and the balance shall be allocable to the Loan Agreement for income tax purposes and the original issue discount on the Loan Agreement shall be considered to be zero.

2. WHEN ARE WE ENTITLED TO PURCHASE YOUR WARRANT STOCK.

The term of this Warrant Agreement and our right to purchase Warrant Stock will begin on the Effective Date, and shall be available for a period of ten (10) years up to and including September 27, 2022.

Notwithstanding the foregoing, Our right to purchase the Warrant Stock shall be automatically and fully exercised via the net issuance method described below (without surrender of the Warrant Agreement) upon the occurrence of a Merger Event, as defined below, with a Person that is not one of Your affiliates, in which Your common stock is exchanged for cash and/or stock that is traded on a recognized public exchange or on the NASDAQ National Market, provided that, upon consummation of the Merger Event, the consideration payable to Us pursuant to such exercise and on account of the Warrant Stock consists of (i) cash or (ii) stock that is traded on a recognized public exchange or on the NASDAQ National Market. No less than ten (10) business days prior to any Merger Event, You shall provide Us with written notice of the proposed Merger Event together with a copy of the executed merger agreement, or other definitive documentation (and all schedules and exhibits thereto) and information concerning Your expected capitalization immediately prior to the Merger Event. Upon consummation of the Merger Event, You shall promptly provide Us with (a) a copy of any modifications or amendments to the executed merger agreement, (b) any other documents in connection therewith, (c) updated information, if any, concerning Your capitalization immediately prior to the Merger Event, and, (d) upon request, by Us any other information reasonably necessary to an informed evaluation of Our rights under this Agreement.

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3. HOW WE MAY PURCHASE YOUR WARRANT STOCK.

We may exercise Our purchase rights, in whole or in part, at any time, or from time to time, prior to the expiration of the term of this Warrant Agreement, by giving You a completed and executed Notice of Exercise in the form attached as Exhibit 1. Promptly upon receipt of the Notice of Exercise and in any event no later than twenty-one (21) days after you have received Our Notice of Exercise and payment of the aggregate Exercise Price for the shares purchased, You will issue to Us a certificate for the number of shares of Warrant Stock that We have purchased and You will execute the Acknowledgment of Exercise in the form attached hereto as Exhibit II indicating the number of shares which will be available to Us for future purchases, if any.

We may pay for the Warrant Stock by either (i) cash or check, or (ii) by the net issuance method as determined below. If We elect the Net Issuance method, You will issue Warrant Stock using the following formula:

	X = Y(A-B)
	A
Where: X =	the number of shares of Warrant Stock to be issued to Us.
Y =	the number of shares of Warrant Stock We request to be exercised under this Warrant Agreement.
A =	the fair market value of one share of Warrant Stock.
B =	the Exercise Price.

For purposes of the above calculation, current fair market value of Warrant Stock shall mean with respect to each share of Warrant Stock:

If the exercise is in connection with the initial public offering of Your Common Stock, and if Your registration statement relating to such public offering has been declared effective by the SEC, then the fair market value per share shall be the product of (x) the initial “Price to Public” specified in the final prospectus of the offering and (y) the number of shares of Common Stock into which each share of Warrant Stock is convertible at the time of such exercise;

If this Warrant Agreement is exercised after, and not in connection with Your initial public offering, and:

Þ if traded on a securities exchange, the fair market value shall be the product of (x) the average of the closing prices over a five (5) day period ending three (3) days before the day the current fair market value of the securities is being determined and (y) the number of shares of Common Stock into which each share of Warrant Stock is convertible at the time of such exercise; or

Þ if actively traded over-the-counter, the fair market value shall be the product of (x) the average of the closing bid and asked prices quoted on the NASDAQ system (or similar system) over the five (5) day period ending three (3) days before the day the current fair market value of the securities is being determined and (y) the number of shares of Common Stock into which each share of Warrant Stock is convertible at the time of such exercise.

If this Warrant Agreement is exercised prior to or after Your initial public offering, and:

Þ Your Common Stock is not listed on any securities exchange or the over-the-counter market, the current fair market value of Warrant Stock shall be the product of (x) the fair market value of a share of Your Common Stock (the highest price per share which You could obtain from a willing buyer (not a current employee or director) for shares of Common Stock sold, from authorized but unissued shares), as determined in good faith by Your Board of Directors and (y) the number of shares of Common Stock into which each share of Warrant Stock is convertible at the time of such exercise, unless You shall become subject to a merger, acquisition or other consolidation pursuant to which You are not the surviving party, in which case the fair market value of Warrant Stock shall be deemed to be the value received by the holders of Your Warrant Stock on a common equivalent basis pursuant to such merger or acquisition or other consolidation.

During the term of this Warrant Agreement, You will at all times from and after the Effective Date have authorized and reserved a sufficient number of shares of (a) Warrant Stock to provide for the exercise of our rights to purchase Warrant Stock, and (b) Common Stock to provide for the conversion of the Warrant Stock.

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If We elect to exercise part of the Warrant Agreement, You will promptly issue to Us an amended Warrant Agreement stating the remaining number of shares that are available. All other terms and conditions of that amended Warrant Agreement shall be identical to those contained in this Warrant Agreement.

If at the end of the term of this Warrant Agreement, the fair market value of one share of Warrant Stock (or other security issuable upon the exercise hereof) as determined in accordance herewith is greater than the Exercise Price in effect on such date, then this Warrant Agreement shall automatically be deemed on and as of such date to be converted pursuant hereto as to all shares of Warrant Stock (or such other securities) for which it shall not previously have been exercised or converted, and You shall promptly deliver a certificate representing the shares of Warrant Stock (or such other securities) issued upon such conversion to Us.

4. WHEN WILL THE NUMBER OF SHARKS AND EXERCISE PRICE CHANGE.

Þ If You are Acquired. If at any time: (i) there is a reorganization of Your stock (other than a reclassification, exchange or subdivision of Your stock otherwise provided for in this Warrant Agreement); (ii) You merge or consolidate with or into another entity, whether or not You are the surviving entity; or (iii) there occurs any transaction or series of related transactions that result in the transfer of fifty percent (50%) or more of the outstanding voting power of the capital stock of You (each of the foregoing events are referred to as a “Merger Event”), then, as a part of such Merger Event, lawful provision shall be made so that We shall thereafter be entitled to receive, upon exercise of Our rights under this Warrant Agreement, the number of shares of preferred stock or other securities of the successor or surviving person resulting from such Merger Event, equal in value to that which would have been issuable if We had exercised Our rights under this Warrant Agreement immediately prior to the Merger Event. In any such case, appropriate adjustment (as determined in good faith by Your Board of Directors) shall be made in the application of the provisions of this Warrant Agreement with respect to Our rights and interest after the Merger Event so that the provisions of this Warrant Agreement (including adjustments of the Exercise Price and number of shares of Warrant Stock purchasable) shall be applicable to the greatest extent possible.

Þ If You Reclassify Your Stock. If at any time You combine, reclassify (including by conversion of outstanding preferred stock), exchange or subdivide Your securities or otherwise, change any of the securities as to which purchase rights under this Warrant Agreement exist into the same or a different number of securities of any other class or classes, this Warrant Agreement will thereafter represent the right to acquire such number and kind of securities as would have been issuable as the result of such change with respect to the securities which were subject to the purchase rights under this Warrant Agreement immediately prior to such combination, reclassification, exchange, subdivision or other change.

Þ If You Subdivide or Combine Your Shares. If at any time You combine or subdivide the Warrant Stock, the Exercise Price will be proportionately decreased in the case of a subdivision, or proportionately increased in the case of a combination.

Þ If You Pay Stock Dividends. If at any time You pay a dividend payable in, or make any other distribution (except any distribution specifically provided for in the above paragraphs) of the Warrant Stock, then the Exercise Price shall be adjusted, from and after the record date of such dividend or distribution, to that price determined by multiplying the Exercise Price in effect immediately prior to such record date by a fraction (i) the numerator of which shall be the total number of all shares of the Warrant Stock outstanding immediately prior to such dividend or distribution, and (ii) the denominator of which shall be the total number of all shares of the Warrant Stock outstanding immediately after such dividend or distribution. We will thereafter be entitled to purchase, at the Exercise Price resulting from such adjustment, the number of shares of Warrant Stock (rounded down to the nearest whole share) obtained by multiplying the Exercise Price in effect immediately prior to such adjustment by the number of shares of Warrant Stock issuable upon the exercise hereof immediately prior to such adjustment and dividing the product thereof by the Exercise Price resulting from such adjustment.

Þ If You Change the Antidilution Rights of the Warrant Stock or Issue New Preferred or Convertible Stock. All antidilution rights applicable to the Warrant Stock purchasable under this Warrant Agreement are as set forth in Your Certificate of Incorporation, as amended through the Effective Date. You will promptly provide Us with any restatement, amendment, modification of or waiver of any right related to the Warrant Stock under Your Certificate of Incorporation. You will provide Us with written notice of any issuance of Your stock or other equity security to occur after the Effective Date (other than issuances of stock or equity securities pursuant to customary employee stock plans) that triggers the antidilution rights applicable to the Warrant Stock, which notice shall include (a) the price at which such stock or security was sold, (b) the number of shares issued, and (c) such other information as necessary for Us to determine that a dilutive event has occurred as a result of such issuance.

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5. WE CAN TRANSFER THIS PLAIN ENGLISH WARRANT AGREEMENT.

Subject to the terms and conditions contained in Section 7. We (or any successor transferee) may transfer in whole or in part this Warrant Agreement and all its rights. We agree not to transfer this Warrant Agreement to a competitor of You as determined in good faith by Your board of directors. You will record the transfer on Your books when You receive Our Notice of Transfer in the form attached hereto as Exhibit III, and Our payment of all transfer taxes and other governmental charges involved in such transfer.

6. REPRESENTATIONS, WARRANTIES, AND COVENANTS FROM YOU.

Þ Reservation of Warrant Stock. The Warrant Stock issuable upon exercise of Our rights under this Warrant Agreement will be duly and validly reserved and when issued in accordance with the provisions of this Warrant Agreement will be validly issued, fully paid and non-assessable, and will be free of any taxes, liens, charges or encumbrances of any nature whatsoever; provided, however, that the Warrant Stock issuable pursuant to this Warrant Agreement may be subject to restrictions on transfer under state and/or Federal securities laws or the Registration Rights Agreement. Upon Our exercise, You will issue to Us certificates for shares of Warrant Stock without charging Us any tax (except as may be required by applicable law), or other cost incurred by You in connection with such exercise and the related issuance of shares of Warrant Stock. You will not be required to pay any tax, which may be payable in respect of any transfer involved and the issuance and delivery of any certificate in a name other than TriplePoint Capital LLC.

Þ Due Authority. Your execution and delivery of this Warrant Agreement and the performance of Your obligations hereunder, including the issuance to Us of the right to acquire the shares of Warrant Stock, have been duly authorized by all necessary corporate action on Your part and this Warrant Agreement is not inconsistent with Your Certificate of Incorporation or Bylaws, does not contravene any law or governmental rule, regulation or order applicable to it, do not and will not contravene any provision of, or constitute a default under, any indenture, mortgage, contract or other instrument to which You are a party or by which You are bound, and this Warrant Agreement constitutes a legal, valid and binding agreement, enforceable in accordance with its respective terms, subject to laws of general application relating to bankruptcy, insolvency and the relief of debtors and the rules of law or principles at equity governing specific performance, injunctive relief and other equitable remedies.

Þ Consents and Approvals. No consent or approval of, giving of notice to, registration with, or taking of any other action in respect of any state, Federal or other governmental authority or agency is required with respect to execution, delivery and Your performance of Your obligations under this Warrant Agreement, except for the filing of any required notices pursuant to Federal and state securities laws, which filings will be effective by the times required thereby.

Þ Issued Securities. All of Your issued and outstanding shares of Common Stock, Warrant Stock or any other securities have been duly authorized and validly issued and are fully paid and nonassessable. All outstanding shares of Common Stock and Warrant Stock were issued in full compliance with all Federal and state securities laws. In addition as of the Effective Date:

Your authorized capital consists of (i) 116,272,000 shares of Common Stock, of which 13,089,277 shares of Common Stock are issued and outstanding, (ii) 14,100,000 shares of Series A Preferred Stock, of which 14,061,152 shares are issued and outstanding, (iii) 12,150,000 shares of Series B Preferred Stock, of which 11,803,284 shares are issued and outstanding, (iv) 9,000,000 shares of Series C Preferred Stock, of which 8,968,604 shares are issued and outstanding, (v) 10,700,000 shares of Series D Preferred Stock, of which 9,665,746 shares are issued and outstanding, (vi) 16,500,000 shares of Series E Preferred Stock, of which 11,342,180 shares are issued and outstanding, (vii) 21,108,000 shares of Series F Preferred Stock, of which 20,760,838 shares are issued and outstanding, and (viii) 12,040,058 shares of Series G Preferred Stock, of which 11,684,548 shares are issued and outstanding.

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You have reserved 19,193,334 shares of Common Stock for issuance under Your Stock Incentive Plans, under which 10,936,265 options have been granted and are currently outstanding. You have warrants outstanding to purchase up to 4,468,854 shares of Series E Preferred Stock and 279,459 shares of Series F Preferred Stock. Except as otherwise provided in this Warrant Agreement and as noted above, there are no other options, warrants, conversion privileges or other rights presently outstanding to purchase or otherwise acquire any authorized but unissued shares of Your capital stock or other of Your securities.

Except as set forth in Your Ninth Amended and Restated Stockholders’ Rights Agreement dated as of June 30, 2011 (the “Stockholders’ Agreement”), a true, correct and complete copy of which has been delivered to Us prior to the issuance of this Warrant, Your stockholders do not have preemptive rights to purchase new issuances of Your capital stock.

Þ Other Commitments to Register Securities. Except as set forth in this Warrant Agreement and the Registration Rights Agreement, You are not, pursuant to the terms of any other agreement currently in existence, under any obligation to register under the 1933 Act any of Your presently outstanding securities or any of Your securities which may hereafter be issued.

Þ Exempt Transaction. Subject to the accuracy of Our representations in Section 7 hereof, the issuance of the Warrant Stock upon exercise of this Warrant Agreement will constitute a transaction exempt from (i) the registration requirements of Section 5 of the 1933 Act, in reliance upon Section 4(2) thereof, and (ii) the qualification requirements of the applicable state securities laws.

Þ Compliance with Rule 144. We may sell the Warrant Stock issuable hereunder in compliance with Rule 144 promulgated by the Securities and Exchange Commission, subject to the lock-up agreement in Section 7 and the satisfaction of the requirements of Rule 144. Beginning on the expiration of the lock-up agreement in Section 7 and so long as You remain subject to the periodic reporting requirements under Section 13 or 15(d) of the 1933 Act, within ten (10) days of Our request, You agree to furnish Us, a written statement confirming Your compliance with the filing requirements of the Securities and Exchange Commission as set forth in such Rule 144, as may be amended.

Þ No Impairment. You agree not to, by amendment of Your Certificate of Incorporation or through a reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms to be observed or performed under this Warrant by You, but shall at all times in good faith assist in carrying out of all the provisions of this Warrant and in taking all such action as may be necessary or appropriate to protect Our rights under this Warrant against impairment. However, You shall not be deemed to have impaired Our rights if You amend Your Certificate of Incorporation, or the holders of Your preferred stock waive their rights thereunder, in a manner that does not (individually or when considered in the context of any other actions being taken in connection with such amendments or waivers) affect Us in a manner different from the effect that such amendments or waivers have on the rights of other holders of the same series and class as the Warrant Stock.

7. OUR REPRESENTATIONS AND COVENANTS TO YOU.

Þ Investment Purpose. The right to acquire Warrant Stock or the Warrant Stock issuable upon exercise of Our rights contained herein and the Common Stock issuable upon conversion will be acquired for investment purposes and not with a view to the sale or distribution of any part thereof, and We have no present intention of selling or engaging in any public distribution of the same in violation of the 1933 Act.

Þ Private Issue. We understand (i) that this Warrant Agreement, the Warrant Stock issuable upon exercise of this Warrant Agreement and the Common Stock issuable upon conversion of the Warrant Stock are not registered under the 1933 Act or qualified under applicable state securities laws on the ground that the issuance contemplated by this Warrant Agreement will be exempt from the registration and qualifications requirements thereof, and (ii) that Your reliance on such exemption is predicated on the representations set forth in this Section 7.

Þ Disposition of Our Rights. In no event will We make a disposition of any of Our rights to acquire Warrant Stock or Warrant Stock issuable upon exercise of such rights or the Common Stock issuable upon conversion of the Warrant Stock unless and until (i) We shall have notified You in writing of the proposed disposition, and (ii) the transferee agrees to be bound in writing to the applicable terms and conditions of this Warrant Agreement, and (iii) if You request, We shall have furnished You with an opinion of counsel satisfactory to You and Your counsel to the effect

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that (A) appropriate action necessary for compliance with the 1933 Act has been taken, or (B) an exemption from the registration requirements of the 1933 Act is available. Notwithstanding the foregoing, the restrictions imposed upon the transferability of any of Our rights to acquire Warrant Stock or Warrant Stock issuable on the exercise of such rights or the Common Stock issuable upon conversion of the Warrant Stock do not apply to transfers from the beneficial owner of any of the aforementioned securities to its nominee or from such nominee to its beneficial owner, and shall terminate as to any particular share of Warrant Stock when (1) such security shall have been effectively registered under the 1933 Act and sold by the holder thereof in accordance with such registration or (2) such security shall have been sold without registration in compliance with Rule 144 under the 1933 Act, or (3) a letter shall have been issued to You at Our request by the staff of the Securities and Exchange Commission or a ruling shall have been issued to the You at Our request by such Commission stating that no action shall be recommended by such staff or taken by such Commission, as the case may be, if such security is transferred without registration under the 1933 Act in accordance with the conditions set forth in such letter or ruling and such letter or ruling specifies that no subsequent restrictions on transfer are required. Whenever the restrictions imposed hereunder shall terminate, as hereinabove provided, the holder of a share of Warrant Stock then outstanding as to which such restrictions have terminated shall be entitled to receive from You, without expense to such holder, one or more new certificates for the Warrant or for such shares of Warrant Stock not bearing any restrictive legend referring to 1933 Act registration or exemption.

Þ Financial Risk. We have such knowledge and experience in financial and business matters and knowledge of Your business affairs and financial condition as to be capable of evaluating the merits and risks of Our investment, and have the ability to bear the economic risks of Our investment.

Þ Risk of No Registration. We understand that if You do not register with the Securities and Exchange Commission pursuant to Section 12 of the 1934 Act (the “1934 Act”), or file reports pursuant to Section 15(d), of the 1934 Act, or if a registration statement covering the securities under the 1933 Act is not in effect when We desire to sell (i) the rights to purchase Warrant Stock pursuant to this Warrant Agreement, or (ii) the Warrant Stock issuable upon exercise of the right to purchase, or (iii) the Common Stock issuable upon conversion of the Warrant Stock, We may be required to hold such securities for an indefinite period. We also understand that any sale of Our right to purchase Warrant Stock or Warrant Stock or Common Stock issuable upon conversion of the Warrant Stock, which might be made by it in reliance upon Rule 144 under the 1933 Act may be made only in accordance with the terms and conditions of that Rule.

Þ Accredited Investor. We are an “accredited investor” within the meaning of the Securities and Exchange Rule 501 of Regulation D of the 1933 Act, as presently in effect.

Þ Domicile. Our domicile for purposes of state securities laws is in the State of California.

Þ Lock-Up Agreement. In consideration for You agreeing to Your obligations under this Warrant Agreement, We and each of Our transferees agrees, in connection with the first registration of Your securities under the 1933 Act, upon Your request or the request of the underwriters managing any underwritten offering of Your securities, not to (a) 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 Us or are thereafter acquired) or (b) 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 (a) or (b) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise, without Your prior written consent or the prior written consent of such underwriters, as the case may be, for such period of time (not to exceed 180 days or such other period as may be requested by You or the underwriters to accommodate regulatory restrictions on (i) the publication or other distribution of research reports and (ii) analyst recommendations and opinions, including, but not limited to, the restrictions contained in NASD Rule 2711(f)(4) or NYSE Rule 472(f)(4), or any successor provisions or amendments thereto) from the effective date of such registration as You or the underwriters may specify; provided, however, that all (x) Your officers and directors and (y) Your stockholders holding three percent (3%) or more of Your total outstanding Common Stock (treating all Your convertible, exercisable and exchangeable securities on an as-if converted to Common Stock basis) are bound by agreements that are no less restrictive. The underwriters in connection with Your initial public offering are intended third party beneficiaries of this Lock-Up Agreement and shall have the right, power and authority to enforce the provisions hereof as though they were a party hereto. We agree that You may instruct Your transfer agent to place stop-transfer notations in its records to enforce the provisions of this Lock-Up Agreement until the end of such period.

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8. NOTICES YOU AGREE TO PROVIDE US.

You agree to give Us at least twenty (20) days prior written notice of the following events:

Þ If You Pay a Dividend or distribution declaration upon your stock.

Þ If You offer for subscription pro-rata to the existing shareholders additional stock or other rights (except for an offering made pursuant to Your Stockholders’ Agreement

Þ If You consummate a Merger Event.

Þ If You have an IPO.

Þ If You dissolve or liquidate.

All notices in this Section must set forth details of the event, how the event adjusts either Our number of shares or Our Exercise Price and the method used for such adjustment.

Timely Notice. Your failure to timely provide such notice required above shall entitle Us to retain the benefit of the applicable notice period notwithstanding anything to the contrary contained in any insufficient notice received by Us.

9. DOCUMENTS YOU WILL PROVIDE US.

Upon signing this Agreement You will provide Us with:

Þ Executed originals of this Agreement, and all other documents and instruments that We may reasonably require

Þ Secretary’s certificate of incumbency and authority

Þ Certified copy of resolutions of Your board of directors approving this Warrant Agreement

Þ Certified copy of Certificate of Incorporation and By-Laws as amended through the Effective Date

Þ Current Registration Rights Agreement

So long as this Warrant Agreement is in effect, You shall provide Us with the following:

Þ You shall submit to Us information that We may reasonably request from time to time in order to satisfy the reasonable requests of our independent accounting firm in connection with the audit of the fair market value of this Warrant Agreement recorded in Our books and records, including but not limited to a written certification by the Company or its advisors of the current fair market value of the Warrant Stock or Your capital stock and shall include information supporting the reasonableness of the fair market value indicated by such certification.

Þ You shall submit to Us any documents and information that We may reasonably request from time to time and are necessary to implement the provisions and purposes of this Warrant Agreement.

10. REGISTRATION RIGHTS UNDER THE 1933 ACT.

The shares of Your common stock into which the Warrant Stock is convertible shall have “piggyback” and “Form S-3” registration rights as set forth in the Registration Rights Agreement, dated as of October 29, 2010 (as amended, the “Registration Rights Agreement”).

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11. OTHER LEGAL PROVISIONS THE PARTIES WILL ABIDE BY.

Effective Date. This Warrant Agreement shall be construed and shall be given effect in all respects as if it had been executed and delivered by the Parties on the date hereof. This Warrant Agreement shall be binding upon any of the successors or assigns of the Parties.

Attorney’s Fees. In any litigation, arbitration or court proceeding between the Parties relating to this Warrant Agreement, the prevailing party shall be entitled to attorneys’ fees and expenses and all costs of proceedings incurred in enforcing this Warrant Agreement.

Governing Law. This Warrant Agreement shall be governed by and construed for all purposes under and in accordance with the laws of the State of California without giving effect to that body of law pertaining to conflicts of laws.

Consent to Jurisdiction and Venue. All judicial proceedings arising in or under or related to this Warrant Agreement may be brought in any state or federal court of competent jurisdiction located in the State of California. By execution and delivery of this Warrant Agreement, each party hereto generally and unconditionally: (a) consents to personal jurisdiction in San Mateo County, State of California; (b) waives any objection as to jurisdiction or venue in San Mateo County, State of California; (c) agrees not to assert any defense based on lack of jurisdiction or venue in the aforesaid courts; and (d) irrevocably agrees to be bound by any judgment rendered thereby in connection with this Warrant Agreement. Service of process on any party hereto in any action arising out of or relating to this agreement shall be effective if given in accordance with the requirements for notice set forth in this Section, and shall be deemed effective and received as set forth therein. Nothing herein shall affect the right to serve process in any other manner permitted by law or shall limit the right of either party to bring proceedings in the courts of any other jurisdiction.

Mutual Waiver of Jury Trial; Judicial Reference. Because disputes arising in connection with complex financial transactions are most quickly and economically resolved by an experienced and expert person and the Parties wish applicable state and federal laws to apply (rather than arbitration rules), The Parties desire that their disputes be resolved by a judge applying such applicable laws. EACH OF THE PARTIES SPECIFICALLY WAIVES ANY RIGHT THEY MAY HAVE TO TRIAL BY JURY OF ANY CAUSE OF ACTION, CLAIM, CROSS-CLAIM, COUNTERCLAIM, THIRD PARTY CLAIM OR ANY OTHER CLAIM (COLLECTIVELY, “CLAIMS”) ASSERTED BY YOU AGAINST US OR OUR ASSIGNEE OR BY US OR OUR ASSIGNEE AGAINST YOU. IN THE EVENT THAT THE FOREGOING JURY TRIAL WAIVER IS NOT ENFORCEABLE, ALL CLAIMS, INCLUDING ANY AND ALL QUESTIONS OF LAW OR FACT RELATING THERETO, SHALL, AT THE WRITTEN REQUEST OF ANY PARTY, BE DETERMINED BY JUDICIAL REFERENCE PURSUANT TO THE CALIFORNIA CODE OF CIVIL PROCEDURE (“REFERENCE”). THE PARTIES SHALL SELECT A SINGLE NEUTRAL REFEREE, WHO SHALL BE A RETIRED STATE OR FEDERAL JUDGE. IN THE EVENT THAT THE PARTIES CANNOT AGREE UPON A REFEREE, THE REFEREE SHALL BE APPOINTED BY THE COURT. THE REFEREE SHALL REPORT A STATEMENT OF DECISION TO THE COURT. NOTHING IN THIS SECTION SHALL LIMIT THE RIGHT OF ANY PARTY AT ANY TIME TO EXERCISE LAWFUL SELF-HELP REMEDIES, FORECLOSE AGAINST COLLATERAL OR OBTAIN PROVISIONAL REMEDIES. THE PARTIES SHALL BEAR THE FEES AND EXPENSES OF THE REFEREE EQUALLY UNLESS THE REFEREE ORDERS OTHERWISE. THE REFEREE SHALL ALSO DETERMINE ALL ISSUES RELATING TO THE APPLICABILITY, INTERPRETATION, AND ENFORCEABILITY OF THIS SECTION. THE PARTIES ACKNOWLEDGE THAT THE CLAIMS WILL NOT BE ADJUDICATED BY A JURY. This waiver extends to all such Claims, including Claims that involve Persons other than You and Us; Claims that arise out of or are in any way connected to the relationship between You and Us; and any Claims for damages, breach of contract, specific performance, or any equitable or legal relief of any kind, arising out of this Warrant Agreement.

Counterparts. This Warrant Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

Notices. Any notice required or permitted under this Warrant Agreement shall be given in writing and shall be deemed effectively given upon the earlier of (1) actual receipt or 3 days after mailing if mailed postage prepaid by regular or airmail to Us or You or (2) one day after it is sent by overnight mail via nationally recognized courier or (3) on the same day as sent via confirmed facsimile transmission, provided that the original is sent by personal delivery or mail by the sending party.

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Remedies. In the event of any default hereunder, the non-defaulting party may proceed to protect and enforce its rights either by suit in equity and/or by action at law, including but not limited to an action for damages as a result of any such default, and/or an action for specific performance for any default where such party will not have an adequate remedy at law and where damages will not be readily ascertainable. Each party expressly acknowledges and agrees that there is no adequate remedy at law for any breach of this Warrant Agreement and that in the event of any breach of this Agreement, the injured party shall be entitled to specific performance of any or all provisions hereof or an injunction prohibiting the other party from continuing to commit any such breach of this Agreement.

Survival. The representations, warranties, covenants, and conditions of the Parties contained herein or made pursuant to this Warrant Agreement shall survive the execution and delivery of this Warrant Agreement.

Severability. In the event any one or more of the provisions of this Warrant Agreement shall for any reason be held invalid, illegal or unenforceable, the remaining provisions of this Warrant Agreement shall be unimpaired, and the invalid, illegal or unenforceable provision shall be replaced by a mutually acceptable valid, legal and enforceable provision, which comes closest to the intention of the Parties underlying the invalid, illegal or unenforceable provision.

Entire Agreement. This Warrant Agreement constitutes the entire agreement between the Parties pertaining to the subject matter contained in it and supersedes all prior and contemporaneous agreements, representations and undertakings of the Parties, whether oral or written, with respect to such subject matter.

Amendments. Any provision of this Warrant Agreement may only be amended by a written instrument signed by the Parties.

Lost Warrants or Stock Certificates. You covenant to Us that, upon receipt of evidence reasonably satisfactory to Us of the loss, theft, destruction or mutilation of this Warrant Agreement or any stock certificate and, in the case of any such loss, theft or destruction, upon receipt of an indemnity reasonably satisfactory to You, or in the case of any such mutilation upon surrender and cancellation of such Warrant Agreement or stock certificate, You will make and deliver a new Warrant Agreement or stock certificate, of like tenor, in lieu of the lost, stolen, destroyed or mutilated Warrant Agreement or stock certificate.

Rights as Stockholders. We shall not, as a party to this Warrant Agreement, be entitled to vote or receive dividends or be deemed the holder of the Warrant Stock or any of Your other securities which may at any time be issuable upon the exercise hereof for any purpose, nor shall anything contained herein be construed to confer upon Us any of the rights of one of Your stockholders or any right to vote for the election of directors or upon any matter submitted to stockholders at any meeting thereof, or to receive dividends or subscription rights or otherwise until this Warrant Agreement is exercised and the shares purchasable upon the exercise hereof shall have become deliverable, as provided herein.

Facsimile Signatures. This Warrant Agreement may be executed and delivered by facsimile and upon such delivery the facsimile signature will be deemed to have the same effect as if the original signature had been delivered to the other party.

[Signature Page to Follow]

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IN WITNESS WHEREOF, each of the Parties have caused this Warrant Agreement to be executed by its officers who are duly authorized as of the Effective Date.

You: BLOOM ENERGY CORPORATION
Signature:	/s/ William H. Kurtz
Print Name:	William H. Kurtz
Title:	CFO & CCO

Us: TRIPLEPOINT CAPITAL LLC
Signature:	/s/ Sajal Srivastava
Print Name:	Sajal Srivastava
Title:	COO

[SIGNATURE PAGE TO PLAIN ENGLISH WARRANT AGREEMENT 0674-W-02]

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EXHIBIT I

NOTICE OF EXERCISE

To: [                                ]

1. We hereby elect to purchase [            ] shares of the Series [            ] Preferred Stock of [                    ], pursuant to the terms of the Plain English Warrant Agreement dated the [        ] day of [        ], [200    ] (the “Plain English Warrant Agreement”) between You and Us, We hereby tender here payment of the purchase price for such shares in full, together with all applicable transfer taxes, if any.

2. Method of Exercise (Please initial the applicable blank)

a.             The undersigned elects to exercise the Plain English Warrant Agreement by means of a cash payment, and gives You full payment for the purchase price of the shares being purchased, together with all applicable transfer taxes, if any.

b.             The undersigned elects to exercise the Plain English Warrant Agreement by means of the Net Issuance Exercise method of Section 3 of the Plain English Warrant Agreement.

3. In exercising Our rights to purchase the Series [        ] Preferred Stock of [                    ], We hereby confirm and acknowledge the investment representations, warranties and covenants made in Section 7 of the Plain English Warrant Agreement.

Please issue a certificate or certificates representing these purchased shares of Series [        ] Preferred Stock in Our name or in such other name as is specified below.

(Name)

(Address)

US: TRIPLEPOINT CAPITAL LLC

By:

Title: 

Date: 

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EXHIBIT II

ACKNOWLEDGMENT OF EXERCISE

[                                                 ], hereby acknowledges receipt of the “Notice of Exercise” from TRIPLEPOINT CAPITAL LLC, to purchase [        ] shares of the Series [        ] Preferred Stock of [                            ], pursuant to the terms of the Plain English Warrant Agreement, and further acknowledges that [        ] shares remain subject to purchase under the terms of the Plain English Warrant Agreement.

YOU:
	By:
	Title:
	Date:

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EXHIBIT III

TRANSFER NOTICE

FOR VALUE RECEIVED, the foregoing Plain English Warrant Agreement and all rights evidenced thereby are hereby transferred and assigned to

(Please Print)

Whose address is

Dated:

Holder’s Signature:

Holder’s Address:

Transferee’s Signature:

Transferee’s Address:

Signature Guaranteed:

NOTE: The signature to this Transfer Notice must correspond with the name as it appears on the face of the Plain English Warrant Agreement, without alteration or enlargement or any change whatever. Officers of corporations and those acting in a fiduciary or other representative capacity should file proper evidence of authority to assign the foregoing Plain English Warrant Agreement.

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EX-4

Exhibit 4.15

THE SECURITIES REPRESENTED BY THIS CERTIFICATE OR INSTRUMENT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE “ACT”) AND MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL REGISTERED UNDER THE ACT AND QUALIFIED OR EXEMPTED FROM QUALIFICATION UNDER ALL APPLICABLE BLUE SKY LAWS, OR, IN THE OPINION OF LEGAL COUNSEL SATISFACTORY TO THE ISSUER OF THESE SECURITIES, SUCH OFFER, SALE OR TRANSFER, PLEDGE OR HYPOTHECATION IS IN COMPLIANCE THEREWITH.

THE SECURITIES REPRESENTED BY THIS CERTIFICATE OR INSTRUMENT ARE SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFER AND A RIGHT OF FIRST REFUSAL HELD BY THE ISSUER OR ITS ASSIGNEE(S) AS SET FORTH IN AN AGREEMENT BETWEEN THE ISSUER AND THE ORIGINAL HOLDER OF THESE SHARES, A COPY OF WHICH MAY BE OBTAINED AT THE PRINCIPAL OFFICE OF THE ISSUER. SUCH TRANSFER RESTRICTIONS AND RIGHT OF FIRST REFUSAL ARE BINDING ON TRANSFEREES OF THESE SECURITIES.

THE SECURITIES REPRESENTED BY THIS CERTIFICATE OR INSTRUMENT ARE SUBJECT TO A LOCK-UP PERIOD OF UP TO 180 DAYS FOLLOWING THE EFFECTIVE DATE OF A REGISTRATION STATEMENT OF THE COMPANY FILED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AS SET FORTH IN AN AGREEMENT BETWEEN THE COMPANY AND THE ORIGINAL HOLDER OF THESE SECURITIES, A COPY OF WHICH MAY BE OBTAINED AT THE PRINCIPAL OFFICE OF THE COMPANY. SUCH LOCK-UP PERIOD IS BINDING ON THE TRANSFEREES OF THESE SECURITIES.

THE SHARES REPRESENTED BY THIS CERTIFICATE OR INSTRUMENT ARE SECURITY FOR CERTAIN INDEBTEDNESS OBLIGATIONS OF THE HOLDER PURSUANT TO THE TERMS OF A NOTE AND SECURITY AGREEMENT BETWEEN THE HOLDER AND THE ISSUER. THE SECURITIES REPRESENTED BY THIS INSTRUMENT ARE SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFER PURSUANT TO THE TERMS OF THE AFOREMENTIONED AGREEMENTS. A COPY OF SUCH AGREEMENTS MAY BE OBTAINED FROM THE COMPANY.

THE SECURITIES REPRESENTED BY THIS CERTIFICATE OR INSTRUMENT ARE SECURITY FOR CERTAIN INDEMNIFICATION OBLIGATIONS OF THE HOLDER ON THE TERMS SET FORTH IN AN AGREEMENT BETWEEN THE HOLDER AND THE ISSUER. THE SECURITIES REPRESENTED BY THIS INSTRUMENT ARE SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFER PURSUANT TO THE TERMS OF THE AFOREMENTIONED AGREEMENT. A COPY OF THE AGREEMENT MAY BE OBTAINED FROM THE COMPANY.

THE HOLDER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE OR INSTRUMENT HAS AGREED TO WAIVE ANY RIGHTS TO OBTAIN INFORMATION CONCERNING THE ISSUER, INCLUDING PURSUANT TO SECTION 220 OF THE DELAWARE GENERAL COPORATION LAW. SUCH WAIVER IS BINDING UPON ANY TRANSFEREE OF THESE SECURITIES AND A CONDITION TO TRANSFER OF THESE SECURITIES IS THE TRANSFEREE’S AGREEMENT TO SUCH WAIVER. A COPY OF THE AGREEMENT MAY BE OBTAINED FROM THE COMPANY.

THE SECURITIES REPRESENTED BY THIS INSTRUMENT ARE SUBJECT TO FURTHER RESTRICTIONS ON TRANSFERABILITY AS SET FORTH HEREIN.

BLOOM ENERGY CORPORATION

AGREEMENT AND WARRANT TO PURCHASE SERIES G PREFERRED STOCK

Effective Date: June 27, 2014

Void After: June 26, 2019

This Agreement and Warrant to Purchase Series G Preferred Stock (this “Agreement” or “Warrant”) certifies that, for value received, Keith Daubenspeck (the “Holder”), is entitled, subject to the terms set forth below, to purchase from Bloom Energy Corporation, a Delaware corporation (the “Company”), the Warrant Shares upon surrender of this Warrant, at the principal office of the Company referred to below, with the subscription form attached hereto as Exhibit A (the “Notice of Exercise”) duly executed, and simultaneous payment therefor in lawful money of the United States (or otherwise as hereinafter provided) of the aggregate Exercise Price (as defined below). The Exercise Price and the number of Warrant Shares purchasable hereunder are subject to adjustment as provided herein.

This Warrant has been issued pursuant to that certain Securities Acquisition Agreement, dated as of as of the Effective Date set forth above, by and between the Company, Holder, and certain other parties (the “Confidential Agreement”) and that certain Securities Acquisition Agreement, dated as of the Effective Date, by and between the Company, the Holder, and certain other parties (the “Securities Acquisition Agreement”) and this Warrant is subject to the Transfer Restrictions, the Indemnification Obligations, and the Security Obligations (each as defined in the Securities Acquisition Agreement) and the other terms and conditions found in the Confidential Agreement and the Securities Acquisition Agreement. Capitalized terms not otherwise defined herein shall be given the meaning assigned to such term in the Securities Acquisition Agreement. This Warrant and the Warrant Shares have been pledged as collateral for the payment and performance of certain obligations of the Holder under that certain Security Agreement of even date with the Confidential Agreement (the “Security Agreement”).

1. Number of Shares. This Warrant may be exercised, in whole or in part, for up to 200,000 shares of the Company’s Series G PreferredStock (the “Warrant Shares”).

2. Exercise Price. The per share purchase price of the Warrant Shares (the “Exercise Price”) for which this Warrant may be exercised shall be $25.76.

3. Exercise of Warrant.

3.1 Time of Exercise. Subject to the terms and conditions set forth herein, this Warrant shall be exercisable, in whole or in part, at any time or from time to time prior to 5:00 p.m. (Pacific Standard Time) on June 26, 2019 (the “Expiration Date”). Notwithstanding the foregoing, this Warrant shall terminate immediately prior to the consummation of a Liquidation (as defined in the Securities Acquisition Agreement). The Company shall provide the Holder with the same notice of a Liquidation that the Company provides to its stockholders generally.

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3.2 Method of Exercise. The exercise shall only be effected by (a) the surrender of the original copy of this Warrant to the Company at the principal office of the Company as set forth in Section 11.4 (or such other office or agency of the Company as may be designated by notice in writing to the Holder at the address of the Holder appearing on the books of the Company), (b) delivery of a notarized and executed Notice of Exercise and (c) unless payment of the Exercise Price is made pursuant to a “net exercise” as provided under Section 4 below, payment of the Exercise Price in cash or by check acceptable to the Company.

3.3 Effect of Exercise. This Warrant (or the portion thereof exercised) shall be deemed to have been exercised immediately prior to the close of business on the date of its surrender for exercise as provided above, and the person entitled to receive the shares of Warrant Shares issuable upon such exercise shall be treated for all purposes as the holder of record of such shares as of the close of business on such date. Subject to the terms of the Securities Acquisition Agreement, the Company, at its expense, shall, within five (5) business days after exercise, issue and deliver to the person or persons entitled to receive the same a certificate or certificates for the number of shares issuable upon such exercise and, unless this Warrant shall have expired, a new warrant representing the right to acquire the number of shares of Warrant Shares represented by the surrendered Warrant, if any, that shall not have been exercised shall also be delivered to the Holder.

3.4 Duty to Deliver. Subject to the terms of the Securities Acquisition Agreement, each stock certificate issued upon exercise of this Warrant (or issued upon conversion thereof), and issued in connection with adjustments under Section 10 hereof with respect to such shares, shall be immediately delivered to the Company and be held in escrow by the Company pursuant to the provisions of Section 4 of the Securities Acquisition Agreement and pursuant to the provisions of Section 3 of the Security Agreement. Furthermore, any new, additional or different securities that may now or hereafter become distributable with respect to any securities issued upon exercise of this Warrant by reason of any adjustment required by Section 10 of hereof or otherwise shall, upon receipt by the Holder, be promptly delivered to and deposited with the Company unless otherwise deposited immediately into escrow by the Company according to the Securities Acquisition Agreement. The Holder shall provide with respect to each such certificate representing such securities one or more stock powers properly executed in blank in the form attached to the Securities Acquisition Agreement.

3.5 Limitation on Exercise. Notwithstanding any other provision of this Agreement, the Company’s obligation to issue Warrant Shares hereunder is subject to additional limitations set forth in Section 10 of the Confidential Agreement pursuant to which the Warrant Shares, if issued, stand as security for certain indemnity obligations of the initial Holder, and pursuant to which the Company’s obligations to issue Warrant Shares hereunder may be cancelled in satisfaction of such obligations.

4. Net Exercise.

4.1 Net Issue Exercise. In lieu of exercising this Warrant via cash payment, the Holder may elect to receive shares equal to the value of this Warrant (or the portion thereof being canceled) by surrender of this Warrant at the principal office of the Company together with the completed Notice of Exercise indicating the Holder’s election to exercise this Warrant by means of a “net exercise,” in which event the Company shall issue to the Holder a number of shares of Common Stock computed using the following formula:

		X = Y (A - B)
			A
Where	X	=	the number of Warrant Shares to be issued to the Holder.

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Y	=	the number of Warrant Shares purchasable under this Warrant or, if only a portion of the Warrant is being exercised, the portion of the Warrant being cancelled (at the date of such calculation).
A	=	the fair market value (as determined below) of one Warrant Share (at the date of such calculation).
B	=	the Exercise Price (as adjusted to the date of such calculation).

If the above calculation results in a negative number, then no shares of Warrant Shares shall be issued or issuable upon conversion of this Warrant.

4.2 Fair Market Value. For purposes of this Section 4, the fair market value of one Warrant Share shall be determined by the Company’s Board of Directors in good faith; provided, however, that where there exists a public market for the Warrant Shares at the time of such exercise, the fair market value per Warrant Share shall be the average of the closing bid and asked prices of the Warrant Shares quoted in the Over-The-Counter Market Summary or the average of the high and low prices as reported by The Nasdaq National Market, the Nasdaq Small Cap Market or on any exchange on which the Warrant Shares is listed, whichever is applicable, for the five (5) trading days prior to the date of the delivery of the Net Exercise Notice.

5. No Fractional Shares or Scrip. No fractional shares or scrip representing fractional shares shall be issued upon the exercise of this Warrant. In lieu of any fractional share to which the Holder would otherwise be entitled, the Company shall make a cash payment equal to the Exercise Price multiplied by such fraction computed to the nearest whole cent.

6. No Rights as Stockholder. The Holder shall not be entitled to vote or receive dividends or be deemed the holder of Warrant Shares or any other securities of the Company that may at any time be issuable on the exercise hereof for any purpose, nor shall anything contained herein be construed to confer upon the Holder, as such, any of the rights of a stockholder of the Company or any right to vote for the election of directors or upon any matter submitted to stockholders at any meeting thereof, or to give or withhold consent to any corporate action or to receive notice of meetings, or to receive dividends or subscription rights or otherwise, until the Warrant shall have been exercised as provided herein.

7. Transfer of Warrant.

7.1 Transferability of Warrant. Holder agrees that this Warrant and the securities issuable upon exercise of this Warrant may not be offered, sold, transferred or disposed of in any other way without the prior written consent of the Company. Notwithstanding the foregoing, this Warrant and the securities issuable upon exercise of this Warrant may be transferred to the heirs of the Holder provided that such heirs assume all of the obligations of the Holder that are set forth in the Settlement Agreements (as defined in the Securities Acquisition Agreement).

7.2 Shares Issued Upon Exercise Subject to Transfer Restrictions. The securities issuable upon exercise of this Warrant shall be subject to the Transfer Restrictions, the Indemnification Obligations, and the Security Obligations, as well as any other limitations set forth in the Securities Acquisition Agreement, and each transferee of this Warrant or the securities issuable upon exercise of this Warrant, shall agree as a condition to any offer, sale, transfer, or disposition that this Warrant and/or any securities issuable upon exercise of this Warrant shall be bound by and subject to the terms of the Transfer Restrictions, the Indemnification Obligations, and the Security Obligations, as well as such other limitations.

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7.3 Transfer Procedures. Subject to the foregoing limitations and requirements, if Holder desires to offer, sell, transfer or dispose of in any other way this Warrant or the securities issuable upon exercise of the Warrant, Holder shall comply with the procedures set forth in Section 3.1(b) of the Securities Acquisition Agreement. Prior to a permitted transfer, the Company shall treat the Holder hereof as the owner and Holder of this Warrant and Company shall not be affected by notice to the contrary.

7.4 Register. The Company will maintain a register (the “Warrant Register”) containing the name and address of the Holder. The Holder of this Warrant may change its address as shown on the Warrant Register by written notice to the Company requesting such change. Any notice or written communication required or permitted to be given to the Holder may be delivered or given by mail to the Holder as shown on the Warrant Register and at the address shown on the Warrant Register.

8. Representations and Warranties of the Holder and Restrictions on Transfer Imposed.

8.1 Representations and Warranties by the Holder. In order to induce the Company to issue this Warrant to the original Holder, the original Holder has made representations and warranties to the Company as set forth in the Securities Acquisition Agreement, which are incorporated herein by reference.

8.2 Legends. The Holder agrees that it will not offer, sell or otherwise dispose of this Warrant or any Warrant Shares to be issued upon exercise hereof except under circumstances which will not result in a violation of the Securities Act or any state securities law. This Warrant and all Warrant Shares issued upon exercise of this Warrant shall be stamped or imprinted with legends in substantially the forms set forth at the top of this Warrant.

9. Lost Documents. Upon receipt by the Company of evidence and indemnity satisfactory to it of the loss, theft, destruction or mutilation of, and upon surrender and cancellation of this Warrant, if mutilated, the Company will make and deliver to the Holder, in lieu of this Warrant, a new Warrant of the same series and of like tenor of this Warrant.

10. Adjustments. The number of shares purchasable hereunder are subject to adjustment from time to time as follows:

10.1 Reorganization, Reclassification. Merger or Conveyance. If any capital reorganization or reclassification or merger or conveyance of the capital stock of the Company shall be effected in such a way that holders of Warrant Shares shall be entitled to receive stock, securities or assets with respect to or in exchange for Warrant Shares, then, as a condition of such reorganization, reclassification, merger or conveyance, lawful and adequate provisions shall be made whereby the Holder of the Warrant shall thereafter have the right to receive upon the basis and upon the terms and conditions specified herein and in lieu of the shares of Warrant Shares immediately theretofore receivable upon the exercise of the Warrant, such shares of stock, securities or assets (including cash) as may be issued or payable with respect to or in exchange for a number of outstanding shares of such Warrant Shares equal to the number of shares of such stock immediately theretofore so receivable, had such reorganization, reclassification, merger or conveyance not taken place, and in any such case appropriate provision shall be made with respect to the rights and interests of such holder to the end that the provisions hereof (including, without limitation, provisions for adjustments of the Exercise Price) shall thereafter be applicable, as nearly as may be, in relation to any shares of stock, securities or assets thereafter deliverable upon the exercise of such exercise rights.

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10.2 Split, Subdivision or Combination of Shares. If the Company at any time while this Warrant, or any portion thereof, remains outstanding and unexpired shall split, subdivide or combine the securities as to which purchase rights under this Warrant exist, into a different number of securities of the same class, the Exercise Price for such securities shall be proportionately decreased in the case of a split or subdivision or proportionately increased in the case of a combination and the number of the securities as to which purchaser rights under this Warrant exist shall be increased or decreased proportionately in accordance with such split subdivision or combination.

10.3 Conversion of Stock. In case all (a) the Series G Preferred Stock is converted into Common Stock or other securities or property, or (b) the Series G Preferred Stock otherwise ceases to exist or to be authorized by the Company’s Certificate of Incorporation (each, a “Stock Event”), then the Holder, at the time of exercise of this Warrant at any time after such Stock Event, shall receive, in lieu of the number of shares of Warrant Shares, as applicable, that would have been issuable upon exercise of this Warrant immediately prior to such Stock Event, the stock and other securities and property that the Holder would have been entitled to receive upon the Stock Event, if, immediately prior to such Stock Event, the Holder had completed such exercise of this Warrant.

10.4 Certificate as to Adjustments. Upon the occurrence of each adjustment or readjustment pursuant to this Section 10, the Company at its expense shall promptly compute such adjustment or readjustment in accordance with the terms hereof and furnish to the Secretary of the Company for filing in the Company’s records and to the Holder a certificate setting forth such adjustment or readjustment and showing in detail the facts upon which such adjustment or readjustment is based. The Company shall, upon the written request, at any time, of the Holder, furnish or cause to be furnished to the Holder a like certificate setting forth: (a) such adjustments and readjustments; (b) the Exercise Price at the time in effect; and (c) the number of shares and the amount, if any, of other property that at the time would be received upon the exercise of the Warrant. No such adjustment or change shall compel immediate exercise of this Warrant or otherwise affect the Expiration Date of this Warrant. Irrespective of any adjustment or other changes made hereunder, this Warrant (or any other warrant issued in exchange therefor) may continue to express the same number and kind of Warrant Shares (except to the extent exercised) and the same Exercise Price as are initially stated herein.

11. General Provisions.

11.1 Governing Law. The validity, interpretation, performance, and enforcement of this Warrant, as well as any other rights, obligations or liabilities otherwise related to the subject matter of this Warrant, shall be governed by and construed under the internal laws of the State of California as applied to agreements among California residents entered into and to be performed entirely within California, without reference to principles of conflict of laws or choice of laws.

11.2 Survival. The representations, warranties, covenants and agreements made herein shall survive the execution of this Agreement and the exercise of this Warrant.

11.3 Successors and Assigns. Except as otherwise expressly provided herein, the provisions hereof shall inure to the benefit of, and be binding upon, the successors, assigns, heirs, executors and administrators of the parties hereto. The Company may assign any of its rights and obligations under this Warrant. Except as set forth in Section 7.1, the Holder may not assign, whether voluntarily or by operation of law, any of its rights and obligations under this Warrant, unless the Company provides prior written consent.

11.4 Notices, etc. 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

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provide such party sufficient notice under this Agreement on the earliest of the following: (a) at the time of personal delivery, if delivery is in person; (b) 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; or (c) 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 express courier. All notices not delivered personally will be sent with postage and/or other charges prepaid and properly addressed to the party to be notified at the address set forth below the signature lines of this Agreement or at such other address as such other party may designate by one of the indicated means of notice herein to the other party hereto. A “business day” shall be a day, other than Saturday or Sunday, when the banks in the city of San Francisco are open for business.

11.5 Amendments. This Warrant may be amended and the observance of any term of this Warrant may be waived only with the written consent of the Company and the Holder. No delay or failure to require performance of any provision of this Warrant shall constitute a waiver of that provision as to that or any other instance. No waiver granted under this Warrant 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.

11.6 Arbitration. Any dispute or controversy of any kind between the parties hereto, whether arising out of, relating to or concerning any interpretation, construction, performance or breach of this Agreement, or otherwise, shall be settled by confidential arbitration to be held in Santa Clara, California in accordance with the commercial dispute rules then in effect of the American Arbitration Association. The Arbitrator may grant injunctions or other relief in such dispute or controversy. Judgment may be entered on the Arbitrator’s decision in any court having jurisdiction. The Company and the Holder shall each be responsible for one half of the costs and expenses of such arbitration, and each shall separately pay its counsel fees and expenses; provided, however, in the event of a determination by the Arbitrator which is adverse to the Company or the Holder, as the case may be, the non-prevailing party shall be responsible for all of the costs and expenses of such arbitration, and for all of the counsel fees and expenses of the Company or the Holder relating thereto. For purposes of any action arising out of the application, interpretation or alleged breach of this Agreement, each of the parties hereto waives any statutory or common law principle, and any judicial interpretation of this Agreement, which would create a presumption against any party hereto as a result of such party having drafted any provision of this Agreement. Counsel for the respective parties have reviewed and revised this Agreement, and there shall not be applied any rule construing ambiguities against the drafting party.

11.7 Severability. If any provision of this Warrant 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 Warrant and the remainder shall be enforced as if such invalid, illegal or unenforceable clause or provision had (to the extent not enforceable) never been contained in such agreement.

11.8 Counterparts. This Agreement may be executed in any number of counterparts each of which shall be an original, but all of which together shall constitute one instrument. This Warrant may be executed and delivered by facsimile or other means of electronic delivery and upon such delivery the signature will be deemed to have the same effect as if the original signature had been delivered to the other party.

***

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IN WITNESS WHEREOF, the Company and the Holder have caused the Warrant to be executed by a duly authorized officer thereof as of the effective date of this Warrant set forth above.

BLOOM ENERGY CORPORATION
By:	/s/ William H. Kurtz
	Name:	William H. Kurtz
	Title:	Chief Financial Officer and Secretary

AGREED AND ACCEPTED:

KEITH DAUBENSPECK

By:

Name:

Title:

Address:

[SIGNATURE PAGE TO SERIES G PREFERRED STOCK WARRANT]

IN WITNESS WHEREOF, the Company and the Holder have caused the Warrant to be executed by a duly authorized officer thereof as of the effective date of this Warrant set forth above.

BLOOM ENERGY CORPORATION
By:
	Name:	William H. Kurtz
	Title:	Chief Financial Officer and Secretary

AGREED AND ACCEPTED:

KEITH DAUBENSPECK

By:	/s/ KEITH DAUBENSPECK
Name:
Title:
Address:

[SIGNATURE PAGE TO SERIES G PREFERRED STOCK WARRANT]

EXHIBIT A

NOTICE OF EXERCISE

To: BLOOM ENERGY CORPORATION

We refer to that certain Agreement and Warrant to Purchase Series G Preferred Stock (the “Warrant”). Capitalized terms not otherwise defined herein shall be given the meaning assigned to such term in the Warrant.

(1) Cash Exercise: The undersigned hereby elects to purchase              shares of Series G Preferred Stock (“Warrant Shares”) of Bloom Energy Corporation pursuant to the terms of the Warrant, and tenders herewith payment of the Exercise Price for such shares in full at the price per share provided in the Warrant and the attached signed and Stock Power and Assignment Separate from Stock Certificate.

Net Exercise Election: The undersigned hereby elects to convert the Warrant into shares of Series G Preferred Stock (“Warrant Shares”) by net exercise election pursuant to the terms of the Warrant and tenders herewith the attached signed and Stock Power and Assignment Separate from Stock Certificate. This conversion is exercised with respect to              of the Warrant Shares covered by the Warrant.

(2) The undersigned hereby confirms and acknowledges that

a. The representations and warranties set forth in Section 2 of the Securities Acquisition Agreement as they apply to the undersigned Holder continue to be true and complete as of this date with the same effect as when they were made on and as of the Effective Date (as defined in the Securities Acquisition Agreement).

b. The undersigned Holder has performed and complied with, and has not breached any of, the terms, agreements, obligations and conditions of the Settlement Agreements (as defined in the Securities Acquisition Agreement).

c. The undersigned Holder hereby agrees, confirms, and acknowledge that the Warrant Shares being issued to me on the date hereof is subject to the Transfer Restrictions, the Indemnification Obligations, the Security Obligations, the other restrictions set forth in the Securities Acquisition Agreement the terms of the Note and Security Agreement, and applicable law.

(4) Please issue a certificate or certificates representing said shares of Warrant Shares in the name of the undersigned or in such other name as is specified below, with the understanding that such certificate shall be withheld by the Company in accordance with Section 4 of the Securities Acquisition Agreement.

KEITH DAUBENSPECK

Print Name

Signature

Date

Stock Power And Assignment

Separate From Stock Certificate

FOR VALUE RECEIVED and pursuant to that certain Warrant to Purchase Series G Preferred Stock, dated as of              (the “Agreement”), the undersigned hereby sells, assigns and transfers unto             ,              shares of the Series G Preferred Stock of Bloom Energy Corporation, a Delaware corporation (the “Company”), standing in the undersigned’s name on the books of the Company represented by Certificate No(s).              delivered herewith, and does hereby irrevocably constitute and appoint the Secretary of the Company as the undersigned’s attorney-in-fact, with full power of substitution, to transfer said stock on the books of the Company. THIS ASSIGNMENT MAY ONLY BE USED AS AUTHORIZED BY THE AGREEMENT AND ANY EXHIBITS THERETO.

Dated:                    

/s/ Keith Daubenspeck

(Signature)

Keith Daubenspeck

(Please Print Name)

Instruction: Please do not fill in any blanks other than the signature line. The purpose of this Stock Power and Assignment is to enable the Company and/or its assignee(s) to acquire the shares upon exercise of its rights under applicable agreements between the Company and Holder without requiring additional signatures on the part of Holder.

EX-4

Exhibit 4.16

THE SECURITIES REPRESENTED BY THIS CERTIFICATE OR INSTRUMENT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE “ACT”) AND MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL REGISTERED UNDER THE ACT AND QUALIFIED OR EXEMPTED FROM QUALIFICATION UNDER ALL APPLICABLE BLUE SKY LAWS, OR, IN THE OPINION OF LEGAL COUNSEL SATISFACTORY TO THE ISSUER OF THESE SECURITIES, SUCH OFFER, SALE OR TRANSFER, PLEDGE OR HYPOTHECATION IS IN COMPLIANCE THEREWITH.

THE SECURITIES REPRESENTED BY THIS CERTIFICATE OR INSTRUMENT ARE SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFER AND A RIGHT OF FIRST REFUSAL HELD BY THE ISSUER OR ITS ASSIGNEE(S) AS SET FORTH IN AN AGREEMENT BETWEEN THE ISSUER AND THE ORIGINAL HOLDER OF THESE SHARES, A COPY OF WHICH MAY BE OBTAINED AT THE PRINCIPAL OFFICE OF THE ISSUER. SUCH TRANSFER RESTRICTIONS AND RIGHT OF FIRST REFUSAL ARE BINDING ON TRANSFEREES OF THESE SECURITIES.

THE SECURITIES REPRESENTED BY THIS CERTIFICATE OR INSTRUMENT ARE SUBJECT TO A LOCK-UP PERIOD OF UP TO 180 DAYS FOLLOWING THE EFFECTIVE DATE OF A REGISTRATION STATEMENT OF THE COMPANY FILED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AS SET FORTH IN AN AGREEMENT BETWEEN THE COMPANY AND THE ORIGINAL HOLDER OF THESE SECURITIES, A COPY OF WHICH MAY BE OBTAINED AT THE PRINCIPAL OFFICE OF THE COMPANY. SUCH LOCK-UP PERIOD IS BINDING ON THE TRANSFEREES OF THESE SECURITIES. THE SHARES REPRESENTED BY THIS CERTIFICATE OR INSTRUMENT ARE SECURITY FOR CERTAIN INDEBTEDNESS OBLIGATIONS OF THE HOLDER PURSUANT TO THE TERMS OF A NOTE AND SECURITY AGREEMENT BETWEEN THE HOLDER AND THE ISSUER. THE SECURITIES REPRESENTED BY THIS INSTRUMENT ARE SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFER PURSUANT TO THE TERMS OF THE AFOREMENTIONED AGREEMENTS. A COPY OF SUCH AGREEMENTS MAY BE OBTAINED FROM THE COMPANY.

THE SECURITIES REPRESENTED BY THIS CERTIFICATE OR INSTRUMENT ARE SECURITY FOR CERTAIN INDEMNIFICATION OBLIGATIONS OF THE HOLDER ON THE TERMS SET FORTH IN AN AGREEMENT BETWEEN THE HOLDER AND THE ISSUER. THE SECURITIES REPRESENTED BY THIS INSTRUMENT ARE SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFER PURSUANT TO THE TERMS OF THE AFOREMENTIONED AGREEMENT. A COPY OF THE AGREEMENT MAY BE OBTAINED FROM THE COMPANY.

THE HOLDER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE OR INSTRUMENT HAS AGREED TO WAIVE ANY RIGHTS TO OBTAIN INFORMATION CONCERNING THE ISSUER, INCLUDING PURSUANT TO SECTION 220 OF THE DELAWARE GENERAL COPORATION LAW. SUCH WAIVER IS BINDING UPON ANY TRANSFEREE OF THESE SECURITIES AND A CONDITION TO TRANSFER OF THESE SECURITIES IS THE TRANSFEREE’S AGREEMENT TO SUCH WAIVER. A COPY OF THE AGREEMENT MAY BE OBTAINED FROM THE COMPANY.

THE SECURITIES REPRESENTED BY THIS INSTRUMENT ARE SUBJECT TO FURTHER RESTRICTIONS ON TRANSFERABILITY AS SET FORTH HEREIN.

BLOOM ENERGY CORPORATION

AGREEMENT AND WARRANT TO PURCHASE SERIES G PREFERRED STOCK

Effective Date: June 27, 2014

Void After: June 26, 2019

This Agreement and Warrant to Purchase Series G Preferred Stock (this “Agreement” or “Warrant”) certifies that, for value received, Dwight Badger (the “Holder”), is entitled, subject to the terms set forth below, to purchase from Bloom Energy Corporation, a Delaware corporation (the “Company”), the Warrant Shares upon surrender of this Warrant, at the principal office of the Company referred to below, with the subscription form attached hereto as Exhibit A (the “Notice of Exercise”) duly executed, and simultaneous payment therefor in lawful money of the United States (or otherwise as hereinafter provided) of the aggregate Exercise Price (as defined below). The Exercise Price and the number of Warrant Shares purchasable hereunder are subject to adjustment as provided herein.

This Warrant has been issued pursuant to that certain Securities Acquisition Agreement, dated as of as of the Effective Date set forth above, by and between the Company, Holder, and certain other parties (the “Confidential Agreement”) and that certain Securities Acquisition Agreement, dated as of the Effective Date, by and between the Company, the Holder, and certain other parties (the “Securities Acquisition Agreement”) and this Warrant is subject to the Transfer Restrictions, the Indemnification Obligations, and the Security Obligations (each as defined in the Securities Acquisition Agreement) and the other terms and conditions found in the Confidential Agreement and the Securities Acquisition Agreement. Capitalized terms not otherwise defined herein shall be given the meaning assigned to such term in the Securities Acquisition Agreement. This Warrant and the Warrant Shares have been pledged as collateral for the payment and performance of certain obligations of the Holder under that certain Security Agreement of even date with the Confidential Agreement (the “Security Agreement”).

1. Number of Shares. This Warrant may be exercised, in whole or in part, for up to 200,000 shares of the Company’s Series G Preferred Stock (the “Warrant Shares”).

2. Exercise Price. The per share purchase price of the Warrant Shares (the “Exercise Price”) for which this Warrant may be exercised shall be $25.76.

3. Exercise of Warrant.

3.1 Time of Exercise. Subject to the terms and conditions set forth herein, this Warrant shall be exercisable, in whole or in part, at any time or from time to time prior to 5:00 p.m. (Pacific Standard Time) on June 26, 2019 (the “Expiration Date”). Notwithstanding the foregoing, this Warrant shall terminate immediately prior to the consummation of a Liquidation (as defined in the Securities Acquisition Agreement). The Company shall provide the Holder with the same notice of a Liquidation that the Company provides to its stockholders generally.

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3.2 Method of Exercise. The exercise shall only be effected by (a) the surrender of the original copy of this Warrant to the Company at the principal office of the Company as set forth in Section 11.4 (or such other office or agency of the Company as may be designated by notice in writing to the Holder at the address of the Holder appearing on the books of the Company), (b) delivery of a notarized and executed Notice of Exercise and (c) unless payment of the Exercise Price is made pursuant to a “net exercise” as provided under Section 4 below, payment of the Exercise Price in cash or by check acceptable to the Company.

3.3 Effect of Exercise. This Warrant (or the portion thereof exercised) shall be deemed to have been exercised immediately prior to the close of business on the date of its surrender for exercise as provided above, and the person entitled to receive the shares of Warrant Shares issuable upon such exercise shall be treated for all purposes as the holder of record of such shares as of the close of business on such date. Subject to the terms of the Securities Acquisition Agreement, the Company, at its expense, shall, within five (5) business days after exercise, issue and deliver to the person or persons entitled to receive the same a certificate or certificates for the number of shares issuable upon such exercise and, unless this Warrant shall have expired, a new warrant representing the right to acquire the number of shares of Warrant Shares represented by the surrendered Warrant, if any, that shall not have been exercised shall also be delivered to the Holder.

3.4 Duty to Deliver. Subject to the terms of the Securities Acquisition Agreement, each stock certificate issued upon exercise of this Warrant (or issued upon conversion thereof), and issued in connection with adjustments under Section 10 hereof with respect to such shares, shall be immediately delivered to the Company and be held in escrow by the Company pursuant to the provisions of Section 4 of the Securities Acquisition Agreement and pursuant to the provisions of Section 3 of the Security Agreement. Furthermore, any new, additional or different securities that may now or hereafter become distributable with respect to any securities issued upon exercise of this Warrant by reason of any adjustment required by Section 10 of hereof or otherwise shall, upon receipt by the Holder, be promptly delivered to and deposited with the Company unless otherwise deposited immediately into escrow by the Company according to the Securities Acquisition Agreement. The Holder shall provide with respect to each such certificate representing such securities one or more stock powers properly executed in blank in the form attached to the Securities Acquisition Agreement.

3.5 Limitation on Exercise. Notwithstanding any other provision of this Agreement, the Company’s obligation to issue Warrant Shares hereunder is subject to additional limitations set forth in Section 10 of the Confidential Agreement pursuant to which the Warrant Shares, if issued, stand as security for certain indemnity obligations of the initial Holder, and pursuant to which the Company’s obligations to issue Warrant Shares hereunder may be cancelled in satisfaction of such obligations.

4. Net Exercise.

4.1 Net Issue Exercise. In lieu of exercising this Warrant via cash payment, the Holder may elect to receive shares equal to the value of this Warrant (or the portion thereof being canceled) by surrender of this Warrant at the principal office of the Company together with the completed Notice of Exercise indicating the Holder’s election to exercise this Warrant by means of a “net exercise,” in which event the Company shall issue to the Holder a number of shares of Common Stock computed using the following formula:

		X = Y (A - B)
			A
Where	X	=	the number of Warrant Shares to be issued to the Holder.

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Y	=	the number of Warrant Shares purchasable under this Warrant or, if only
		a portion of the Warrant is being exercised, the portion of the Warrant
		being cancelled (at the date of such calculation).
A	=	the fair market value (as determined below) of one Warrant Share (at the
		date of such calculation).
B	=	the Exercise Price (as adjusted to the date of such calculation).

If the above calculation results in a negative number, then no shares of Warrant Shares shall be issued or issuable upon conversion of this Warrant.

4.2 Fair Market Value. For purposes of this Section 4, the fair market value of one Warrant Share shall be determined by the Company’s Board of Directors in good faith; provided, however, that where there exists a public market for the Warrant Shares at the time of such exercise, the fair market value per Warrant Share shall be the average of the closing bid and asked prices of the Warrant Shares quoted in the Over-The-Counter Market Summary or the average of the high and low prices as reported by The Nasdaq National Market, the Nasdaq Small Cap Market or on any exchange on which the Warrant Shares is listed, whichever is applicable, for the five (5) trading days prior to the date of the delivery of the Net Exercise Notice.

5. No Fractional Shares or Scrip. No fractional shares or scrip representing fractional shares shall be issued upon the exercise of this Warrant. In lieu of any fractional share to which the Holder would otherwise be entitled, the Company shall make a cash payment equal to the Exercise Price multiplied by such fraction computed to the nearest whole cent.

6. No Rights as Stockholder. The Holder shall not be entitled to vote or receive dividends or be deemed the holder of Warrant Shares or any other securities of the Company that may at any time be issuable on the exercise hereof for any purpose, nor shall anything contained herein be construed to confer upon the Holder, as such, any of the rights of a stockholder of the Company or any right to vote for the election of directors or upon any matter submitted to stockholders at any meeting thereof, or to give or withhold consent to any corporate action or to receive notice of meetings, or to receive dividends or subscription rights or otherwise, until the Warrant shall have been exercised as provided herein.

7. Transfer of Warrant.

7.1 Transferability of Warrant. Holder agrees that this Warrant and the securities issuable upon exercise of this Warrant may not be offered, sold, transferred or disposed of in any other way without the prior written consent of the Company. Notwithstanding the foregoing, this Warrant and the securities issuable upon exercise of this Warrant may be transferred to the heirs of the Holder provided that such heirs assume all of the obligations of the Holder that are set forth in the Settlement Agreements (as defined in the Securities Acquisition Agreement).

7.2 Shares Issued Upon Exercise Subject to Transfer Restrictions. The securities issuable upon exercise of this Warrant shall be subject to the Transfer Restrictions, the Indemnification Obligations, and the Security Obligations, as well as any other limitations set forth in the Securities Acquisition Agreement, and each transferee of this Warrant or the securities issuable upon exercise of this Warrant, shall agree as a condition to any offer, sale, transfer, or disposition that this Warrant and/or any securities issuable upon exercise of this Warrant shall be bound by and subject to the terms of the Transfer Restrictions, the Indemnification Obligations, and the Security Obligations, as well as such other limitations.

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7.3 Transfer Procedures. Subject to the foregoing limitations and requirements, if Holder desires to offer, sell, transfer or dispose of in any other way this Warrant or the securities issuable upon exercise of the Warrant, Holder shall comply with the procedures set forth in Section 3.1(b) of the Securities Acquisition Agreement. Prior to a permitted transfer, the Company shall treat the Holder hereof as the owner and Holder of this Warrant and Company shall not be affected by notice to the contrary.

7.4 Register. The Company will maintain a register (the “Warrant Register”) containing the name and address of the Holder. The Holder of this Warrant may change its address as shown on the Warrant Register by written notice to the Company requesting such change. Any notice or written communication required or permitted to be given to the Holder may be delivered or given by mail to the Holder as shown on the Warrant Register and at the address shown on the Warrant Register.

8. Representations and Warranties of the Holder and Restrictions on Transfer Imposed.

8.1 Representations and Warranties by the Holder. In order to induce the Company to issue this Warrant to the original Holder, the original Holder has made representations and warranties to the Company as set forth in the Securities Acquisition Agreement, which are incorporated herein by reference.

8.2 Legends. The Holder agrees that it will not offer, sell or otherwise dispose of this Warrant or any Warrant Shares to be issued upon exercise hereof except under circumstances which will not result in a violation of the Securities Act or any state securities law. This Warrant and all Warrant Shares issued upon exercise of this Warrant shall be stamped or imprinted with legends in substantially the forms set forth at the top of this Warrant.

9. Lost Documents. Upon receipt by the Company of evidence and indemnity satisfactory to it of the loss, theft, destruction or mutilation of, and upon surrender and cancellation of this Warrant, if mutilated, the Company will make and deliver to the Holder, in lieu of this Warrant, a new Warrant of the same series and of like tenor of this Warrant.

10. Adjustments. The number of shares purchasable hereunder are subject to adjustment from time to time as follows:

10.1 Reorganization, Reclassification. Merger or Conveyance. If any capital reorganization or reclassification or merger or conveyance of the capital stock of the Company shall be effected in such a way that holders of Warrant Shares shall be entitled to receive stock, securities or assets with respect to or in exchange for Warrant Shares, then, as a condition of such reorganization, reclassification, merger or conveyance, lawful and adequate provisions shall be made whereby the Holder of the Warrant shall thereafter have the right to receive upon the basis and upon the terms and conditions specified herein and in lieu of the shares of Warrant Shares immediately theretofore receivable upon the exercise of the Warrant, such shares of stock, securities or assets (including cash) as may be issued or payable with respect to or in exchange for a number of outstanding shares of such Warrant Shares equal to the number of shares of such stock immediately theretofore so receivable, had such reorganization, reclassification, merger or conveyance not taken place, and in any such case appropriate provision shall be made with respect to the rights and interests of such holder to the end that the provisions hereof (including, without limitation, provisions for adjustments of the Exercise Price) shall thereafter be applicable, as nearly as may be, in relation to any shares of stock, securities or assets thereafter deliverable upon the exercise of such exercise rights.

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10.2 Split, Subdivision or Combination of Shares. If the Company at any time while this Warrant, or any portion thereof, remains outstanding and unexpired shall split, subdivide or combine the securities as to which purchase rights under this Warrant exist, into a different number of securities of the same class, the Exercise Price for such securities shall be proportionately decreased in the case of a split or subdivision or proportionately increased in the case of a combination and the number of the securities as to which purchaser rights under this Warrant exist shall be increased or decreased proportionately in accordance with such split subdivision or combination.

10.3 Conversion of Stock. In case all (a) the Series G Preferred Stock is converted into Common Stock or other securities or property, or (b) the Series G Preferred Stock otherwise ceases to exist or to be authorized by the Company’s Certificate of Incorporation (each, a “Stock Event”), then the Holder, at the time of exercise of this Warrant at any time after such Stock Event, shall receive, in lieu of the number of shares of Warrant Shares, as applicable, that would have been issuable upon exercise of this Warrant immediately prior to such Stock Event, the stock and other securities and property that the Holder would have been entitled to receive upon the Stock Event, if, immediately prior to such Stock Event, the Holder had completed such exercise of this Warrant.]

10.4 Certificate as to Adjustments. Upon the occurrence of each adjustment or readjustment pursuant to this Section 10, the Company at its expense shall promptly compute such adjustment or readjustment in accordance with the terms hereof and furnish to the Secretary of the Company for filing in the Company’s records and to the Holder a certificate setting forth such adjustment or readjustment and showing in detail the facts upon which such adjustment or readjustment is based. The Company shall, upon the written request, at any time, of the Holder, furnish or cause to be furnished to the Holder a like certificate setting forth: (a) such adjustments and readjustments; (b) the Exercise Price at the time in effect; and (c) the number of shares and the amount, if any, of other property that at the time would be received upon the exercise of the Warrant. No such adjustment or change shall compel immediate exercise of this Warrant or otherwise affect the Expiration Date of this Warrant. Irrespective of any adjustment or other changes made hereunder, this Warrant (or any other warrant issued in exchange therefor) may continue to express the same number and kind of Warrant Shares (except to the extent exercised) and the same Exercise Price as are initially stated herein.

11. General Provisions.

11.1 Governing Law. The validity, interpretation, performance, and enforcement of this Warrant, as well as any other rights, obligations or liabilities otherwise related to the subject matter of this Warrant, shall be governed by and construed under the internal laws of the State of California as applied to agreements among California residents entered into and to be performed entirely within California, without reference to principles of conflict of laws or choice of laws.

11.2 Survival. The representations, warranties, covenants and agreements made herein shall survive the execution of this Agreement and the exercise of this Warrant.

11.3 Successors and Assigns. Except as otherwise expressly provided herein, the provisions hereof shall inure to the benefit of, and be binding upon, the successors, assigns, heirs, executors and administrators of the parties hereto. The Company may assign any of its rights and obligations under this Warrant. Except as set forth in Section 7.1, the Holder may not assign, whether voluntarily or by operation of law, any of its rights and obligations under this Warrant, unless the Company provides prior written consent.

11.4 Notices, etc. 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

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provide such party sufficient notice under this Agreement on the earliest of the following: (a) at the time of personal delivery, if delivery is in person; (b) 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; or (c) 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 express courier. All notices not delivered personally will be sent with postage and/or other charges prepaid and properly addressed to the party to be notified at the address set forth below the signature lines of this Agreement or at such other address as such other party may designate by one of the indicated means of notice herein to the other party hereto. A “business day” shall be a day, other than Saturday or Sunday, when the banks in the city of San Francisco are open for business.

11.5 Amendments. This Warrant may be amended and the observance of any term of this Warrant may be waived only with the written consent of the Company and the Holder. No delay or failure to require performance of any provision of this Warrant shall constitute a waiver of that provision as to that or any other instance. No waiver granted under this Warrant 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.

11.6 Arbitration. Any dispute or controversy of any kind between the parties hereto, whether arising out of, relating to or concerning any interpretation, construction, performance or breach of this Agreement, or otherwise, shall be settled by confidential arbitration to be held in Santa Clara, California in accordance with the commercial dispute rules then in effect of the American Arbitration Association. The Arbitrator may grant injunctions or other relief in such dispute or controversy. Judgment may be entered on the Arbitrator’s decision in any court having jurisdiction. The Company and the Holder shall each be responsible for one half of the costs and expenses of such arbitration, and each shall separately pay its counsel fees and expenses; provided, however, in the event of a determination by the Arbitrator which is adverse to the Company or the Holder, as the case may be, the non-prevailing party shall be responsible for all of the costs and expenses of such arbitration, and for all of the counsel fees and expenses of the Company or the Holder relating thereto. For purposes of any action arising out of the application, interpretation or alleged breach of this Agreement, each of the parties hereto waives any statutory or common law principle, and any judicial interpretation of this Agreement, which would create a presumption against any party hereto as a result of such party having drafted any provision of this Agreement. Counsel for the respective parties have reviewed and revised this Agreement, and there shall not be applied any rule construing ambiguities against the drafting party.

11.7 Severability. If any provision of this Warrant 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 Warrant and the remainder shall be enforced as if such invalid, illegal or unenforceable clause or provision had (to the extent not enforceable) never been contained in such agreement.

11.8 Counterparts. This Agreement may be executed in any number of counterparts each of which shall be an original, but all of which together shall constitute one instrument. This Warrant may be executed and delivered by facsimile or other means of electronic delivery and upon such delivery the signature will be deemed to have the same effect as if the original signature had been delivered to the other party.

***

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IN WITNESS WHEREOF, the Company and the Holder have caused the Warrant to be executed by a duly authorized officer thereof as of the effective date of this Warrant set forth above.

BLOOM ENERGY CORPORATION
By:	/s/ William H. Kurtz
	Name:	William H. Kurtz
	Title:	Chief Financial Officer and Secretary

AGREED AND ACCEPTED:

DWIGHT BADGER

By:

Name:

Title:

Address:

[SIGNATURE PAGE TO SERIES G PREFERRED STOCK WARRANT]

IN WITNESS WHEREOF, the Company and the Holder have caused the Warrant to be executed by a duly authorized officer thereof as of the effective date of this Warrant set forth above.

BLOOM ENERGY CORPORATION
By:
	Name:	William H. Kurtz
	Title:	Chief Financial Officer and Secretary

AGREED AND ACCEPTED:

DWIGHT BADGER

By:	/s/ DWIGHT BADGER
Name:
Title:
Address:

[SIGNATURE PAGE TO SERIES G PREFERRED STOCK WARRANT]

EXHIBIT A

NOTICE OF EXERCISE

To: BLOOM ENERGY CORPORATION

We refer to that certain Agreement and Warrant to Purchase Series G Preferred Stock (the “Warrant”). Capitalized terms not otherwise defined herein shall be given the meaning assigned to such term in the Warrant.

(1) Cash Exercise: The undersigned hereby elects to purchase             shares of Series G Preferred Stock (“Warrant Shares”) of Bloom Energy Corporation pursuant to the terms of the Warrant, and tenders herewith payment of the Exercise Price for such shares in full at the price per share provided in the Warrant and the attached signed and Stock Power and Assignment Separate from Stock Certificate.

Net Exercise Election: The undersigned hereby elects to convert the Warrant into shares of Series G Preferred Stock (“Warrant Shares”) by net exercise election pursuant to the terms of the Warrant and tenders herewith the attached signed and Stock Power and Assignment Separate from Stock Certificate. This conversion is exercised with respect to             of the Warrant Shares covered by the Warrant.

(2) The undersigned hereby confirms and acknowledges that

a. The representations and warranties set forth in Section 2 of the Securities Acquisition Agreement as they apply to the undersigned Holder continue to be true and complete as of this date with the same effect as when they were made on and as of the Effective Date (as defined in the Securities Acquisition Agreement).

b. The undersigned Holder has performed and complied with, and has not breached any of, the terms, agreements, obligations and conditions of the Settlement Agreements (as defined in the Securities Acquisition Agreement).

c. The undersigned Holder hereby agrees, confirms, and acknowledge that the Warrant Shares being issued to me on the date hereof is subject to the Transfer Restrictions, the Indemnification Obligations, the Security Obligations, the other restrictions set forth in the Securities Acquisition Agreement the terms of the Note and Security Agreement, and applicable law.

(4) Please issue a certificate or certificates representing said shares of Warrant Shares in the name of the undersigned or in such other name as is specified below, with the understanding that such certificate shall be withheld by the Company in accordance with Section 4 of the Securities Acquisition Agreement.

DWIGHT BADGER

Print Name

Signature

Date

Stock Power And Assignment

Separate From Stock Certificate

FOR VALUE RECEIVED and pursuant to that certain Warrant to Purchase Series G Preferred Stock, dated as of              (the “Agreement”), the undersigned hereby sells, assigns and transfers unto             ,              shares of the Series G Preferred Stock of Bloom Energy Corporation, a Delaware corporation (the “Company”), standing in the undersigned’s name on the books of the Company represented by Certificate No(s).              delivered herewith, and does hereby irrevocably constitute and appoint the Secretary of the Company as the undersigned’s attorney-in-fact, with full power of substitution, to transfer said stock on the books of the Company. THIS ASSIGNMENT MAY ONLY BE USED AS AUTHORIZED BY THE AGREEMENT AND ANY EXHIBITS THERETO.

Dated:                    

/s/ Dwight Badger

(Signature)

/s/ Dwight Badger

(Please Print Name)

Instruction: Please do not fill in any blanks other than the signature line. The purpose of this Stock Power and Assignment is to enable the Company and/or its assignee(s) to acquire the shares upon exercise of its rights under applicable agreements between the Company and Holder without requiring additional signatures on the part of Holder.

EX-10

Exhibit 10.2

BLOOM ENERGY CORPORATION

2002 STOCK PLAN

(amended June 2011)

1. Purposes of the Plan. The purposes of this 2002 Stock Plan are to attract and retain the best available personnel for positions of substantial responsibility, to provide additional incentive to Employees, Directors and Consultants, and to promote the success of the Company’s business. Options granted under the Plan may be Incentive Stock Options or Nonstatutory Stock Options, as determined by the Administrator at the time of grant. Stock Purchase Rights may also be granted under the Plan.

2. Definitions. As used herein, the following definitions shall apply:

(a) “Administrator” means the Board or any of its Committees as shall be administering the Plan in accordance with Section 4 hereof.

(b) “Applicable Laws” means the requirements relating to the administration of stock option plans under U.S. state corporate laws, U.S. federal and state securities laws, the Code, any stock exchange or quotation system on which the Common Stock is listed or quoted and the applicable laws of any other country or jurisdiction where Options or Stock Purchase Rights are granted under the Plan.

(c) “Board” means the Board of Directors of the Company.

(d) “Change in Control” means the occurrence of either of the following events:

(i) The consummation of the sale or disposition by the Company of all or substantially all of the Company’s assets; or

(ii) The consummation of a merger or consolidation of the Company with any other corporation, other than a merger or consolidation which would result in the voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity or its parent) at least fifty percent (50%) of the total voting power represented by the voting securities of the Company or such surviving entity or its parent outstanding immediately after such merger or consolidation.

(e) “Code” means the Internal Revenue Code of 1986, as amended.

(f) “Committee” means a committee of Directors appointed by the Board in accordance with Section 4 hereof.

(g) “Common Stock” means the Common Stock of the Company.

(h) “Company” means Bloom Energy Corporation, a Delaware corporation.

(i) “Consultant” means any natural person who is engaged by the Company or any Parent or Subsidiary to render consulting or advisory services to such entity and who satisfies the requirements of subsection (c)(1) of Rule 701 under the Securities Act of 1933, as amended.

(j) “Director” means a member of the Board of Directors of the Company.

(k) “Disability” means total and permanent disability as defined in Section 22(e)(3) of the Code.

(l) “Employee” means any person, including Officers and Directors, employed by the Company or any Parent or Subsidiary of the Company. A Service Provider shall not cease to be an Employee in the case of (i) any leave of absence approved by the Company or (ii) transfers between locations of the Company or between or among the Company and its Parent, any Subsidiary, or any successor. For purposes of Incentive Stock Options, no such leave may exceed ninety days, unless reemployment upon expiration of such leave is guaranteed by statute or contract. If reemployment upon expiration of a leave of absence approved by the Company is not so guaranteed, on the 181st day of such leave any Incentive Stock Option held by the Optionee shall cease to be treated as an Incentive Stock Option and shall be treated for tax purposes as a Nonstatutory Stock Option. Neither service as a Director nor payment of a director’s fee by the Company shall be sufficient to constitute “employment” by the Company.

(m) “Exchange Act” means the Securities Exchange Act of 1934, as amended.

(n) “Fair Market Value” means, as of any date, the value of Common Stock determined as follows:

(i) If the Common Stock is listed on any established stock exchange or a national market system, including without limitation the Nasdaq National Market or The Nasdaq SmallCap Market of The Nasdaq Stock Market, its Fair Market Value shall be the closing sales price for such stock (or the closing bid, if no sales were reported) as quoted on such exchange or system for the last market trading day prior to the time of determination, as reported in The Wall Street Journal or such other source as the Administrator deems reliable;

(ii) If the Common Stock is regularly quoted by a recognized securities dealer but selling prices are not reported, its Fair Market Value shall be the mean between the high bid and low asked prices for the Common Stock on the last market trading day prior to the day of determination; or

(iii) In the absence of an established market for the Common Stock, the Fair Market Value thereof shall be determined in good faith by the Administrator.

(o) “Incentive Stock Option” means an Option intended to qualify as an incentive stock option within the meaning of Section 422 of the Code.

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(p) “Nonstatutory Stock Option” means an Option not intended to qualify as an Incentive Stock Option.

(q) “Officer” means a person who is an officer of the Company within the meaning of Section 16 of the Exchange Act and the rules and regulations promulgated thereunder.

(r) “Option” means a stock option granted pursuant to the Plan.

(s) “Option Agreement” means a written agreement between the Company and an Optionee evidencing the terms and conditions of an individual Option grant. The Option Agreement is subject to the terms and conditions of the Plan.

(t) “Option Exchange Program” means a program whereby outstanding Options are exchanged for Options with a lower exercise price.

(u) “Optioned Stock” means the Common Stock subject to an Option or a Stock Purchase Right.

(v) “Optionee” means the holder of an outstanding Option or Stock Purchase Right granted under the Plan.

(w) “Parent” means a “parent corporation,” whether now or hereafter existing, as defined in Section 424(e) of the Code.

(x) “Plan” means this 2002 Stock Plan.

(y) “Restricted Stock” means shares of Common Stock acquired pursuant to a grant of a Stock Purchase Right under Section 11 below.

(z) “Service Provider” means an Employee, Director, or Consultant.

(aa) “Share” means a share of the Common Stock, as adjusted in accordance with Section 12 below.

(bb) “Stock Purchase Right” means a right to purchase Common Stock pursuant to Section 11 below.

(cc) “Subsidiary” means a “subsidiary corporation,” whether now or hereafter existing, as defined in Section 424(f) of the Code.

3. Stock Subject to the Plan. Subject to the provisions of Section 12 of the Plan, the maximum aggregate number of Shares that may be subject to option and sold under the Plan is 16,193,334 Shares. The Shares may be authorized but unissued or reacquired Common Stock.

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If an Option or Stock Purchase Right expires or becomes unexercisable without having been exercised in full, or is surrendered pursuant to an Option Exchange Program, the unpurchased Shares which were subject thereto shall become available for future grant or sale under the Plan (unless the Plan has terminated). However, Shares that have actually been issued under the Plan, upon exercise of either an Option or Stock Purchase Right, shall not be returned to the Plan and shall not become available for future distribution under the Plan, except that if Shares of Restricted Stock are repurchased by the Company at their original purchase price, such Shares shall become available for future grant under the Plan.

4. Administration of the Plan.

(a) Administrator. The Plan shall be administered by the Board or a Committee appointed by the Board, which Committee shall be constituted to comply with Applicable Laws.

(b) Powers of the Administrator. Subject to the provisions of the Plan and, in the case of a Committee, the specific duties delegated by the Board to such Committee, and subject to the approval of any relevant authorities, the Administrator shall have the authority in its discretion:

(i) to determine the Fair Market Value;

(ii) to select the Service Providers to whom Options and Stock Purchase Rights may from time to time be granted hereunder;

(iii) to determine the number of Shares to be covered by each such award granted hereunder;

(iv) to approve forms of agreement for use under the Plan;

(v) to determine the terms and conditions, of any Option or Stock Purchase Right granted hereunder. Such terms and conditions include, but are not limited to, the exercise price, the time or times when Options or Stock Purchase Rights may be exercised (which may be based on performance criteria), any vesting acceleration or waiver of forfeiture restrictions, and any restriction or limitation regarding any Option or Stock Purchase Right or the Common Stock relating thereto, based in each case on such factors as the Administrator, in its sole discretion, shall determine;

(vi) to determine whether and under what circumstances an Option may be settled in cash under subsection 9(e) instead of Common Stock;

(vii) to reduce the exercise price of any Option to the then current Fair Market Value if the Fair Market Value of the Common Stock covered by such Option has declined since the date the Option was granted;

(viii) to initiate an Option Exchange Program;

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(ix) to prescribe, amend and rescind rules and regulations relating to the Plan, including rules and regulations relating to sub-plans established for the purpose of qualifying for preferred tax treatment under foreign tax laws;

(x) to allow Optionees to satisfy withholding tax obligations by electing to have the Company withhold from the Shares to be issued upon exercise of an Option or Stock Purchase Right that number of Shares having a Fair Market Value equal to the amount required to be withheld. The Fair Market Value of the Shares to be withheld shall be determined on the date that the amount of tax to be withheld is to be determined. All elections by Optionees to have Shares withheld for this purpose shall be made in such form and under such conditions as the Administrator may deem necessary or advisable; and

(xi) to construe and interpret the terms of the Plan and awards granted pursuant to the Plan.

(c) Effect of Administrator’s Decision. All decisions, determinations and interpretations of the Administrator shall be final and binding on all Optionees.

5. Eligibility.

(a) Nonstatutory Stock Options and Stock Purchase Rights may be granted to Service Providers. Incentive Stock Options may be granted only to Employees.

(b) Each Option shall be designated in the Option Agreement as either an Incentive Stock Option or a Nonstatutory Stock Option. However, notwithstanding such designation, to the extent that the aggregate Fair Market Value of the Shares with respect to which Incentive Stock Options are exercisable for the first time by the Optionee during any calendar year (under all plans of the Company and any Parent or Subsidiary) exceeds $100,000, such Options shall be treated as Nonstatutory Stock Options. For purposes of this Section 5(b), Incentive Stock Options shall be taken into account in the order in which they were granted. The Fair Market Value of the Shares shall be determined as of the time the Option with respect to such Shares is granted.

(c) Neither the Plan nor any Option or Stock Purchase Right shall confer upon any Optionee any right with respect to continuing the Optionee’s relationship as a Service Provider with the Company, nor shall it interfere in any way with his or her right or the Company’s right to terminate such relationship at any time, with or without cause.

6. Term of Plan. The Plan shall become effective upon its adoption by the Board. It shall continue in effect for a term of ten (10) years unless sooner terminated under Section 14 of the Plan.

7. Term of Option. The term of each Option shall be stated in the Option Agreement; provided, however, that the term shall be no more than ten (10) years from the date of grant thereof. In the case of an Incentive Stock Option granted to an Optionee who, at the time the Option is granted, owns stock representing more than ten percent (10%) of the voting power of all classes of stock of the Company or any Parent or Subsidiary, the term of the Option shall be five (5) years from the date of grant or such shorter term as may be provided in the Option Agreement.

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8. Option Exercise Price and Consideration.

(a) The per share exercise price for the Shares to be issued upon exercise of an Option shall be such price as is determined by the Administrator, but shall be subject to the following:

(i) In the case of an Incentive Stock Option

(1) granted to an Employee who, at the time of grant of such Option, owns stock representing more than ten percent (10%) of the voting power of all classes of stock of the Company or any Parent or Subsidiary, the exercise price shall be no less than 110% of the Fair Market Value per Share on the date of grant.

(2) granted to any other Employee, the per Share exercise price shall be no less than 100% of the Fair Market Value per Share on the date of grant.

(ii) In the case of a Nonstatutory Stock Option

(1) granted to a Service Provider who, at the time of grant of such Option, owns stock representing more than ten percent (10%) of the voting power of all classes of stock of the Company or any Parent or Subsidiary, the exercise price shall be no less than 110% of the Fair Market Value per Share on the date of grant.

(2) granted to any other Service Provider, the per Share exercise price shall be no less than 85% of the Fair Market Value per Share on the date of grant.

(iii) Notwithstanding the foregoing, Options may be granted with a per Share exercise price other than as required above pursuant to a merger or other corporate transaction provided that such grant is approved by the Board.

(b) The consideration to be paid for the Shares to be issued upon exercise of an Option, including the method of payment, shall be determined by the Administrator (and, in the case of an Incentive Stock Option, shall be determined at the time of grant). Such consideration may consist of (1) cash; (2) check; (3) promissory note; (4) other Shares which (x) in the case of Shares acquired upon exercise of an Option, have been owned by the Optionee for more than six months on the date of surrender, and (y) have a Fair Market Value on the date of surrender equal to the aggregate exercise price of the Shares as to which such Option shall be exercised; (5) consideration received by the Company under a cashless exercise program implemented by the Company in connection with the Plan; or (6) any combination of the foregoing methods of payment. In making its determination as to the type of consideration to accept, the Administrator shall consider if acceptance of such consideration may be reasonably expected to benefit the Company.

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9. Exercise of Option.

(a) Procedure for Exercise; Rights as a Stockholder. Any Option granted hereunder shall be exercisable according to the terms hereof at such times and under such conditions as determined by the Administrator and set forth in the Option Agreement. Except in the case of Options granted to Officers, Directors, and Consultants, Options shall become exercisable at a rate of no less than 20% per year over five (5) years from the date the Options are granted. Unless the Administrator provides otherwise, vesting of Options granted hereunder to Officers and Directors shall be tolled during any unpaid leave of absence. An Option may not be exercised for a fraction of a Share.

An Option shall be deemed exercised when the Company receives: (i) written notice of exercise (in accordance with the Option Agreement) from the person entitled to exercise the Option and (ii) full payment for the Shares with respect to which the Option is exercised. Full payment may consist of any consideration and method of payment authorized by the Administrator and permitted by the Option Agreement and the Plan. Shares issued upon exercise of an Option shall be issued in the name of the Optionee or, if requested by the Optionee, in the name of the Optionee and his or her spouse. Until the Shares are issued (as evidenced by the appropriate entry on the books of the Company or of a duly authorized transfer agent of the Company), no right to vote or receive dividends or any other rights as a stockholder shall exist with respect to the Shares, notwithstanding the exercise of the Option. The Company shall issue (or cause to be issued) such Shares promptly after the Option is exercised. No adjustment will be made for a dividend or other right for which the record date is prior to the date the Shares are issued, except as provided in Section 12.

Exercise of an Option in any manner shall result in a decrease in the number of Shares thereafter available, both for purposes of the Plan and for sale under the Option, by the number of Shares as to which the Option is exercised.

(b) Termination of Relationship as a Service Provider. If an Optionee ceases to be a Service Provider, such Optionee may exercise his or her Option within thirty (30) days of termination, or such longer period of time as is specified in the Option Agreement, to the extent that the Option is vested on the date of termination (but in no event later than the expiration of the term of the Option as set forth in the Option Agreement). If, on the date of termination, the Optionee is not vested as to his or her entire Option, the Shares covered by the unvested portion of the Option shall revert to the Plan. If, after termination, the Optionee does not exercise his or her Option within the time specified by the Administrator, the Option shall terminate, and the Shares covered by such Option shall revert to the Plan.

(c) Disability of Optionee. If an Optionee ceases to be a Service Provider as a result of the Optionee’s Disability, the Optionee may exercise his or her Option within six (6) months of termination, or such longer period of time as is specified in the Option Agreement, to the extent the Option is vested on the date of termination (but in no event later than the expiration of the term of such Option as set forth in the Option Agreement). If, on the date of termination, the Optionee is not vested as to his or her entire Option, the Shares covered by the unvested portion of the Option shall revert to the Plan. If, after termination, the Optionee does not exercise his or her Option within the time specified herein, the Option shall terminate, and the Shares covered by such Option shall revert to the Plan.

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(d) Death of Optionee. If an Optionee dies while a Service Provider, the Option may be exercised within six (6) months of termination, or such longer period of time as is specified in the Option Agreement, to the extent that the Option is vested on the date of death (but in no event later than the expiration of the term of such Option as set forth in the Option Agreement) by the Optionee’s estate or by a person who acquires the right to exercise the Option by bequest or inheritance. If, at the time of death, the Optionee is not vested as to the entire Option, the Shares covered by the unvested portion of the Option shall immediately revert to the Plan. If the Option is not so exercised within the time specified herein, the Option shall terminate, and the Shares covered by such Option shall revert to the Plan.

(e) Buyout Provisions. The Administrator may at any time offer to buy out for a payment in cash or Shares, an Option previously granted, based on such terms and conditions as the Administrator shall establish and communicate to the Optionee at the time that such offer is made.

10. Non-Transferability of Options and Stock Purchase Rights. Options and Stock Purchase Rights may not be sold, pledged, assigned, hypothecated, transferred, or disposed of in any manner other than by will or by laws of descent and distribution and may be exercised, during the lifetime of the Optionee, only by the Optionee. For the avoidance of doubt, the foregoing prohibition against assignment and transfer applies to an Option and, prior to exercise, the shares to be issued on exercise of an Option, and pursuant to the foregoing sentence shall be understood to include, without limitation, a prohibition against any pledge, hypothecation, or other transfer, including any short position, any “put equivalent position” or any “call equivalent position” (in each case, as defined in Rule 16a-1 promulgated under the Exchange Act).

11. Stock Purchase Rights.

(a) Rights to Purchase. Stock Purchase Rights may be issued either alone, in addition to, or in tandem with other awards granted under the Plan and/or cash awards made outside of the Plan. After the Administrator determines that it will offer Stock Purchase Rights under the Plan, it shall advise the offeree in writing of the terms, conditions, and restrictions related to the offer, including the number of Shares that such person shall be entitled to purchase, the price to be paid, and the time within which such person must accept such offer. The terms of the offer shall comply in all respects with Section 260.140.42 of Title 10 of the California Code of Regulations. The offer shall be accepted by execution of a Restricted Stock purchase agreement in the form determined by the Administrator.

(b) Repurchase Option. Unless the Administrator determines otherwise, the Restricted Stock purchase agreement shall grant the Company a repurchase option exercisable upon the voluntary or involuntary termination of the purchaser’s service with the Company for any reason (including death or disability). The purchase price for Shares repurchased pursuant to the Restricted Stock purchase agreement shall be the original price paid by the purchaser and may be paid by cancellation of any indebtedness of the purchaser to the Company. The repurchase option shall lapse at such rate as the Administrator may determine. Except with respect to Shares purchased by Officers, Directors, and Consultants, the repurchase option shall in no case lapse at a rate of less than 20% per year over five (5) years from the date of purchase.

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(c) Other Provisions. The Restricted Stock purchase agreement shall contain such other terms, provisions, and conditions not inconsistent with the Plan as may be determined by the Administrator in its sole discretion.

(d) Rights as a Stockholder. Once the Stock Purchase Right is exercised, the purchaser shall have rights equivalent to those of a stockholder and shall be a stockholder when his or her purchase is entered upon the records of the duly authorized transfer agent of the Company. No adjustment shall be made for a dividend or other right for which the record date is prior to the date the Stock Purchase Right is exercised, except as provided in Section 12 of the Plan.

12. Adjustments Upon Changes in Capitalization, Merger or Asset Sale.

(a) Changes in Capitalization. Subject to any required action by the stockholders of the Company, the number of shares of Common Stock covered by each outstanding Option or Stock Purchase Right, and the number of shares of Common Stock which have been authorized for issuance under the Plan but as to which no Options or Stock Purchase Rights have yet been granted or which have been returned to the Plan upon cancellation or expiration of an Option or Stock Purchase Right, as well as the price per share of Common Stock covered by each such outstanding Option or Stock Purchase Right, shall be proportionately adjusted for any increase or decrease in the number of issued shares of Common Stock resulting from a stock split, reverse stock split, stock dividend, combination or reclassification of the Common Stock, or any other increase or decrease in the number of issued shares of Common Stock effected without receipt of consideration by the Company. The conversion of any convertible securities of the Company shall not be deemed to have been “effected without receipt of consideration.” Such adjustment shall be made by the Board, whose determination in that respect shall be final, binding, and conclusive. Except as expressly provided herein, no issuance by the Company of shares of stock of any class, or securities convertible into shares of stock of any class, shall affect, and no adjustment by reason thereof shall be made with respect to, the number or price of shares of Common Stock subject to an Option or Stock Purchase Right.

(b) Dissolution or Liquidation. In the event of the proposed dissolution or liquidation of the Company, the Administrator shall notify each Optionee as soon as practicable prior to the effective date of such proposed transaction. The Administrator in its discretion may provide for an Optionee to have the right to exercise his or her Option or Stock Purchase Right until fifteen (15) days prior to such transaction as to all of the Optioned Stock covered thereby, including Shares as to which the Option or Stock Purchase Right would not otherwise be exercisable. In addition, the Administrator may provide that any Company repurchase option applicable to any Shares purchased upon exercise of an Option or Stock Purchase Right shall lapse as to all such Shares, provided the proposed dissolution or liquidation takes place at the time and in the manner contemplated. To the extent it has not been previously exercised, an Option or Stock Purchase Right will terminate immediately prior to the consummation of such proposed action.

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(c) Merger or Asset Sale. In the event of a Change of Control, each outstanding Option and Stock Purchase Right shall be assumed or an equivalent option or right substituted by the successor corporation or a Parent or Subsidiary of the successor corporation; provided, however, that any outstanding Option or Stock Purchase Right for which an initial “cliff” vesting period has not expired shall be deemed vested with respect to that number of shares determined by multiplying (i) the aggregate number of shares issuable upon exercise of the Option or Stock Purchase Right by (ii) the amount calculated by dividing (A) the total number of calendar months elapsed since the vesting commencement date of such Option or Stock Purchase Right by (B) the total number of calendar months from the vesting commencement date until the date such Option or Stock Purchase Right would otherwise be fully vested. In the event that the successor corporation refuses to assume or substitute for the Option or Stock Purchase Right, the Optionee shall fully vest in and have the right to exercise the Option or Stock Purchase Right as to all of the Optioned Stock, including Shares as to which it would not otherwise be vested or exercisable. If an Option or Stock Purchase Right becomes fully vested and exercisable in lieu of assumption or substitution in the event of a merger or sale of assets, the Administrator shall notify the Optionee in writing or electronically that the Option or Stock Purchase Right shall be fully exercisable for a period of fifteen (15) days from the date of such notice, and the Option or Stock Purchase Right shall terminate upon the expiration of such period. For the purposes of this paragraph, the Option or Stock Purchase Right shall be considered assumed if, following the merger or consolidation or Change of Control, the option or right confers the right to purchase or receive, for each Share of Optioned Stock subject to the Option or Stock Purchase Right immediately prior to the merger or consolidation or Change of Control, the consideration (whether stock, cash, or other securities or property) received in the merger or consolidation or Change of Control by holders of Common Stock for each Share held on the effective date of the transaction (and if holders were offered a choice of consideration, the type of consideration chosen by the holders of a majority of the outstanding Shares); provided, however, that if such consideration received in the merger or consolidation or Change of Control is not solely common stock of the successor corporation or its Parent, the Administrator may, with the consent of the successor corporation, provide for the consideration to be received upon the exercise of the Option or Stock Purchase Right, for each Share of Optioned Stock subject to the Option or Stock Purchase Right, to be solely common stock of the successor corporation or its Parent equal in fair market value to the per share consideration received by holders of Common Stock in the merger or consolidation or Change of Control.

13. Time of Granting Options and Stock Purchase Rights. The date of grant of an Option or Stock Purchase Right shall, for all purposes, be the date on which the Administrator makes the determination granting such Option or Stock Purchase Right, or such other date as is determined by the Administrator.

14. Amendment and Termination of the Plan.

(a) Amendment and Termination. The Board may at any time amend, alter, suspend, or terminate the Plan.

(b) Stockholder Approval. The Board shall obtain stockholder approval of any Plan amendment to the extent necessary and desirable to comply with Applicable Laws.

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(c) Effect of Amendment or Termination. No amendment, alteration, suspension, or termination of the Plan shall impair the rights of any Optionee, unless mutually agreed otherwise between the Optionee and the Administrator, which agreement must be in writing and signed by the Optionee and the Company. Termination of the Plan shall not affect the Administrator’s ability to exercise the powers granted to it hereunder with respect to Options granted under the Plan prior to the date of such termination.

15. Conditions Upon Issuance of Shares.

(a) Legal Compliance. Shares shall not be issued pursuant to the exercise of an Option unless the exercise of such Option and the issuance and delivery of such Shares shall comply with Applicable Laws and shall be further subject to the approval of counsel for the Company with respect to such compliance.

(b) Investment Representations. As a condition to the exercise of an Option, the Administrator may require the person exercising such Option to represent and warrant at the time of any such exercise that the Shares are being purchased only for investment and without any present intention to sell or distribute such Shares if, in the opinion of counsel for the Company, such a representation is required.

16. Inability to Obtain Authority. The inability of the Company to obtain authority from any regulatory body having jurisdiction, which authority is deemed by the Company’s counsel to be necessary to the lawful issuance and sale of any Shares hereunder, shall relieve the Company of any liability in respect of the failure to issue or sell such Shares as to which such requisite authority shall not have been obtained.

17. Reservation of Shares. The Company, during the term of this Plan, shall at all times reserve and keep available such number of Shares as shall be sufficient to satisfy the requirements of the Plan.

18. Stockholder Approval. The Plan shall be subject to approval by the stockholders of the Company within twelve (12) months after the date the Plan is adopted. Such stockholder approval shall be obtained in the degree and manner required under Applicable Laws.

19. Information to Optionees and Purchasers. If the Company is relying on the exemption from registration under Section 12(g) of the Exchange Act pursuant to Rule 12h-1(f)(1) promulgated under the Exchange Act, then the Company shall provide the Required Information (as defined below) in the manner required by Rule 12h-1(f)(1) to all Optionees every six months until the Company becomes subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or is no longer relying on the exemption pursuant to Rule 12h-1(f)(1); provided, that, prior to receiving access to the Required Information the Optionee must agree to keep the Required Information confidential pursuant to a written agreement in the form provided by the Company. For purposes of this Section 5.10, “Required Information” means the information described in Rules 701(e)(3), (4) and (5) under the Securities Act, with the financial statements being not more than 180 days old.

***

11

BLOOM ENERGY CORPORATION

GLOBAL STOCK OPTION AGREEMENT

Issued Pursuant to the

2002 STOCK PLAN

Unless otherwise defined herein, the terms defined in the 2002 Stock Plan (the “Plan”) shall have the same defined meanings in this Option Agreement.

NOTICE OF STOCK OPTION GRANT

Name:   «FirstName» «LastName»

The undersigned Optionee has been granted an Option to purchase Common Stock of the Company, subject to the terms and conditions of the Plan and this Option Agreement, as follows:

Date of Grant:	«Option_Date»
Vesting Commencement Date:	«Vest_Base_Date»
Exercise Price per Share:	«Option_Price»
Total Number of Shares Granted:	«Shares»
Total Exercise Price:	«Total_Price»
Type of Option:	«Type_Long»
Term/Expiration Date:	«ExpireDate»

Vesting Schedule:

This Option shall vest and become exercisable, in whole or in part, according to the following vesting schedule:

20% of the Shares subject to the Option shall vest and become exercisable on the one (1) year anniversary of the Vesting Commencement Date, and 1/60th of the Shares subject to the Option shall vest and become exercisable each month thereafter, subject to Optionee’s continuing to be a Service Provider on such dates.

Code Section 409A:

Under Code Section 409A (which applies to U.S. taxpayers), an option that vests after December 31, 2004 that was granted with a per share exercise price that is determined by the Internal Revenue Service (the “IRS”) to be less than the fair market value of a Share of Common Stock on the date of grant (a “discount option”) is considered “deferred compensation”. An option that is a “discount option” may result in (i) income recognition by the Optionee prior to the exercise of the option (when the option vests), (ii) an additional twenty percent (20%) income tax, and (iii) potential interest charges. Optionee acknowledges that the Company cannot guarantee and has not guaranteed that the IRS will determine that the per share exercise price of this Option equals or exceeds the fair market value of a Share of Common Stock on the date of grant. Optionee agrees that if the IRS determines that the Option was granted with a per share exercise price that was less than the fair market value of a Share of Common Stock on the date of grant, Optionee will be solely responsible for any costs related to such a determination.

Termination Period:

This Option shall be exercisable for three months after Optionee ceases to be a Service Provider for reasons other than death and Disability. Upon Optionee’s death or Disability, this Option may be exercised for one year after Optionee ceases to be a Service Provider. For further information on when Optionee will be considered to cease being a Service Provider, please see Section 11(k) of the Option Agreement. In no event may Optionee exercise this Option after the Term/Expiration Date as provided above.

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AGREEMENT

(a) Grant of Option. The Company hereby grants to the Optionee named in the attached paper or electronic representation of the Notice of Stock Option Grant (the “Notice of Grant”) an option (the “Option”) to purchase the number of Shares set forth in the Notice of Grant, at the exercise price per Share set forth in the Notice of Grant (the “Exercise Price”). Grant of the Option shall be subject to the terms, definitions, provisions, and conditions of the Plan, which is incorporated herein by reference. Subject to Section 14(c) of the Plan, in the event of a conflict between the terms and conditions of the Plan and this Option Agreement (which includes the country-specific-provisions set forth in Exhibit D), the terms and conditions of the Plan shall prevail.

If designated in the Notice of Grant as an Incentive Stock Option (“ISO”), this Option is intended to qualify as an Incentive Stock Option as defined in Section 422 of the Code. Nevertheless, to the extent that it exceeds the $100,000 rule of Code Section 422(d), this Option shall be treated as a Nonstatutory Stock Option (“NSO”).

(b) Exercise of Option.

(i) Right to Exercise. This Option shall be exercisable during its term in accordance with the Vesting Schedule set out in the Notice of Grant and with the applicable provisions of the Plan and this Option Agreement.

(ii) Method of Exercise. This Option shall be exercisable by delivery of a completed and executed exercise notice in the form attached as Exhibit A or an electronic representation of the form attached as Exhibit A (the “Exercise Notice”) which shall state the election to exercise the Option, the number of Shares with respect to which the Option is being exercised, and such other representations and agreements as may be required by the Company. The Exercise Notice shall be accompanied by payment of the aggregate Exercise Price as to all exercised Shares. This Option shall be deemed to be exercised upon receipt by the Company of such fully executed Exercise Notice accompanied by the aggregate Exercise Price and the satisfaction of any obligations with regard to Tax-Related Items (as defined in Section 9).

No Shares shall be issued pursuant to the exercise of an Option unless such issuance and such exercise complies with Applicable Laws. Assuming such compliance, for income tax purposes the Shares shall be considered transferred to the Optionee on the date on which the Option is exercised with respect to such Shares, unless the Company determines for an Optionee subject to tax laws in a non-U.S. jurisdiction that a different date is prescribed.

(c) Optionee’s Representations. In the event the Shares have not been registered under the U.S. Securities Act of 1933, as amended (the “Securities Act”), at the time this Option is exercised, the Optionee shall, if required by the Company, concurrently with the exercise of all or any portion of this Option, deliver to the Company his or her executed Investment Representation Statement in the form attached hereto as Exhibit B.

(d) Method of Payment. Payment of the aggregate Exercise Price shall be made by any of the following, or a combination thereof:

(i) cash or check;

(ii) consideration received by the Company under a formal cashless exercise program adopted by the Company in connection with the Plan, if applicable; or

(iii) surrender of other Shares which, (i) in the case of Shares acquired upon exercise of an option, have been owned by the Optionee for more than six (6) months on the date of surrender, and (ii) have a Fair Market Value on the date of surrender equal to the aggregate Exercise Price of the Exercised Shares, provided, however, that if Optionee resides outside of the United States, the use of this method of payment shall be subject to the approval of the Administrator.

(e) Lock-Up Period. In consideration for the Company’s agreement to grant this Option, the undersigned agrees, in connection with the first registration of the Company’s securities under the Securities Act, upon request of the Company or the underwriters managing any such underwritten offering of the Company’s securities, not to (a) 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 undersigned or are thereafter acquired) or (b) enter into any swap or other arrangement that transfers to

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another, in whole or in part, any of the economic consequences of ownership of the Common Stock, whether any such transaction described in clause (a) or (b) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise, without the prior written consent of the Company or such underwriters, as the case may be, for such period of time (not to exceed 180 days) from the effective date of such registration as the Company or the underwriters may specify. The underwriters in connection with the Company’s initial public offering are intended third party beneficiaries of this Section 5 and shall have the right, power and authority to enforce the provisions hereof as though they were a party hereto. The undersigned agrees that the Company may instruct its transfer agent to place stop-transfer notations in its records to enforce the provisions of this Section 5.

(f) Restrictions on Exercise. This Option may not be exercised if the issuance of such Shares upon such exercise or the method of payment of consideration for such shares would constitute a violation of any Applicable Law.

(g) Non-Transferability of Option. This Option may not be transferred in any manner otherwise than by will or by the laws of descent or distribution and may be exercised during the lifetime of the Optionee only by the Optionee. The terms of the Plan and this Option Agreement shall be binding upon the executors, administrators, heirs, successors and assigns of the Optionee.

(h) Term of Option. This Option may be exercised only within the term set out in the Notice of Grant, and may be exercised during such term only in accordance with the Plan and the terms of this Option.

(i) Tax Consequences.

(i) Optionee acknowledges that, regardless of any action taken by the Company or, if different, Optionee’s employer (the “Employer”), the ultimate liability for all income tax, social insurance, payroll tax, fringe benefits tax, payment on account or other tax-related items related to Optionee’s participation in the Plan and legally applicable to Optionee (“Tax-Related Items”) is and remains Optionee’s responsibility and may exceed the amount actually withheld by the Company or the Employer. Optionee further acknowledges that the Company and/or the Employer (i) make no representations or undertakings regarding the treatment of any Tax-Related Items in connection with any aspect of the Option, including, but not limited to, the grant, vesting or exercise of the Option, the subsequent sale or other disposition of the Shares acquired pursuant to such exercise and the receipt of any dividends; and (ii) do not commit to and are under no obligation to structure the terms of the grant or any aspect of the Option to reduce or eliminate Optionee’s liability for Tax-Related Items or achieve any particular tax result. Further, if Optionee is subject to Tax-Related Items in more than one jurisdiction between the date of grant and the date of any relevant taxable or tax withholding event, as applicable, Optionee acknowledges that the Company and/or the Employer (or former employer, as applicable) may be required to withhold or account for Tax-Related Items in more than one jurisdiction.

(ii) Prior to the relevant taxable or tax withholding event, as applicable, Optionee agrees to make adequate arrangements satisfactory to the Company and/or the Employer to satisfy all Tax-Related Items. In this regard, Optionee authorizes the Company and/or the Employer, or their respective agents, at their discretion, to satisfy the obligations with regard to all Tax-Related Items by one or a combination of the following:

(i) withholding from Optionee’s wages or other cash compensation paid to Optionee by the Company and/or the Employer; or

(ii) withholding from proceeds of the sale of Shares acquired at exercise of the Option either through a voluntary sale or through a mandatory sale arranged by the Company (on Optionee’s behalf pursuant to this authorization) without further consent.

(iii) Finally, Optionee agrees to pay to the Company or the Employer any amount of Tax-Related Items that the Company or the Employer may be required to withhold or account for as a result of Optionee’s participation in the Plan that cannot be satisfied by the means previously described. The Company may refuse to issue or deliver the shares or the proceeds of the sale of Shares, if Optionee fails to comply with his or her obligations in connection with the Tax-Related Items.

(iv) Set forth in Exhibit C a brief summary, as of the date of this Option, of some of the U.S. federal tax consequences of exercise of this Option and disposition of the Shares.

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(j) No Advice Regarding Grant. The Company is not providing any tax, legal or financial advice, nor is the Company making any recommendations regarding Optionee’s participation in the Plan, or Optionee’s acquisition or sale or other disposition of the underlying Shares. Optionee is hereby advised to consult with his or her own personal tax, legal and financial advisors regarding his or her participation in the Plan before taking any action related to the Plan.

(k) Nature of Grant. In accepting the Option, Optionee acknowledges, understands and agrees that:

(i) the Plan is established voluntarily by the Company, it is discretionary in nature, and may be amended, suspended or terminated by the Company at any time, to the extent permitted by the Plan;

(ii) the grant of the Option is voluntary and occasional and does not create any contractual or other right to receive future grants of options, or benefits in lieu of options, even if options have been granted in the past;

(iii) all decisions with respect to future Option or other grants, if any, will be at the sole discretion of the Company;

(iv) Optionee is voluntarily participating in the Plan;

(v) the Option and any Shares acquired under the Plan are not intended to replace any pension rights or compensation

(vi) the Option and any Shares acquired under the Plan and the income and value of same, are not part of normal or expected compensation for purposes of calculating any severance, resignation, termination, redundancy, dismissal, end-of-service payments, bonuses, long-service awards, pension or retirement or welfare benefits or similar payments;

(vii) the future value of the Shares underlying the Option is unknown, indeterminable, and cannot be predicted with certainty;

(viii) if the underlying Shares do not increase in value, the Option will have no value;

(ix) if Optionee exercises the Option and acquires Shares, the value of such Shares may increase or decrease, even below the Exercise Price;

(x) no claim or entitlement to compensation or damages shall arise from forfeiture of the Option resulting from Optionee ceasing to provide employment or other services to the Company or the Employer (for any reason whatsoever, whether or not later found to be invalid or in breach of employment laws in the jurisdiction where Optionee is employed or the terms of Optionee’s employment agreement, if any), and in consideration of the grant of the Option to which Optionee is otherwise not entitled, Optionee irrevocably agrees never to institute any claim against the Company, any of its Subsidiaries or the Employer, waives his or her ability, if any, to bring any such claim, and releases the Company, its Subsidiaries and the Employer from any such claim; if, notwithstanding the foregoing, any such claim is allowed by a court of competent jurisdiction, then, by participating in the Plan, Optionee shall be deemed irrevocably to have agreed not to pursue such claim and agree to execute any and all documents necessary to request dismissal or withdrawal of such claim;

(xi) for purposes of the Option, Optionee will no longer be considered a Service Provider as of the date Optionee ceases to actively provide services to the Company or a Subsidiary (the “Termination Date”); further, in the event Optionee ceases to be a Service Provider (for any reason whatsoever, whether or not such reason is later found to be invalid or in breach of employment laws in the jurisdiction where Optionee is employed or the terms of Optionee’s employment agreement, if any), Optionee’s right to vest in the Option, if any, will terminate effective as of the Termination Date and will not be extended by any notice period (e.g., active service would not include any contractual notice period or any period of “garden leave” or similar period mandated under employment laws in the jurisdiction where Optionee is employed or the terms of Optionee’s employment agreement, if any); furthermore, the period of time during which Optionee has the right to exercise the Option after Optionee ceases to be a Service Provider, if any, will be measured from the Termination Date and will not be extended by any notice period; the Administrator shall have the exclusive discretion to determine when Optionee no longer actively providing services for purposes of the Option (including whether Optionee may still be considered to be actively providing services while on a leave of absence); and

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(xii) the following provisions apply only if Optionee is providing services outside the United States:

(i) the Option and the Shares subject to the Option are not part of normal or expected compensation or salary for any purpose; and

(ii) Optionee acknowledges and agrees that neither the Company, the Employer nor any Subsidiary shall be liable for any foreign exchange rate fluctuation between Optionee’s local currency and the United States Dollar that may affect the value of the Option or of any amounts due to Optionee pursuant to the exercise of the Option or the subsequent sale of any Shares acquired upon exercise.

(l) Electronic Delivery and Participation. The Company may, in its sole discretion, decide to deliver any documents related to current or future participation in the Plan by electronic means. Optionee hereby consents to receive such documents by electronic delivery and agrees to participate in the Plan through an on-line or electronic system established and maintained by the Company or a third party designated by the Company.

(m) Language. If Optionee has received this Option Agreement, or any other document related to the Option and/or the Plan translated into a language other than English and if the meaning of the translated version is different than the English version, the English version will control.

(n) Severability. The provisions of this Option Agreement are severable and if any one or more provisions are determined to be illegal or otherwise unenforceable, in whole or in part, the remaining provisions shall nevertheless be binding and enforceable.

(o) Exhibit D. Notwithstanding any provision in this Option Agreement, the Option grant shall be subject to any special terms and conditions set forth in Exhibit D to this Option Agreement for Optionee’s country. Moreover, if Optionee relocates to one of the countries included in Exhibit D, the special terms and conditions for such country will apply to Optionee, to the extent the Company determines that the application of such terms and conditions is necessary or advisable for legal or administrative reasons. Exhibit D constitutes part of this Option Agreement.

(p) Imposition of Other Requirements. The Company reserves the right to impose other requirements on Optionee’s participation in the Plan, on the Option and on any Shares purchased upon exercise of the Option, to the extent the Company determines it is necessary or advisable for legal or administrative reasons, and to require Optionee to sign any additional agreements or undertakings that may be necessary to accomplish the foregoing.

(q) Waiver. Optionee acknowledges that a waiver by the Company of breach of any provision of this Option Agreement shall not operate or be construed as a waiver of any other optionees under the Plan.

(r) Entire Agreement; Governing Law and Choice of Venue. The Plan is incorporated herein by reference. The Plan and this Option Agreement constitute the entire agreement of the parties with respect to the subject matter hereof and supersede in their entirety all prior undertakings and agreements of the Company and Optionee with respect to the subject matter hereof, and may not be modified adversely to the Optionee’s interest except by means of a writing signed by the Company and Optionee. This Option Agreement is governed by the internal substantive laws but not the choice of law rules of the State of California. For purposes of any action, lawsuit or other proceedings brought to enforce this Option Agreement, relating to it, or arising from it, the parties hereby submit to and consent to the sole and exclusive jurisdiction of the courts of Santa Clara County, California, or the federal courts for the United States for the Northern District of California, and no other courts, where this grant is made and/or to be performed.

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Optionee acknowledges receipt of a copy of the Plan and represents that he or she is familiar with the terms and provisions thereof, and hereby accepts this Option subject to all of the terms and provisions thereof. Optionee has reviewed the Plan and this Option in their entirety, has had an opportunity to obtain the advice of counsel prior to executing this Option and fully understands all provisions of the Option. Optionee hereby agrees to accept as binding, conclusive and final all decisions or interpretations of the Administrator upon any questions arising under the Plan or this Option. Optionee further agrees to notify the Company upon any change in the residence address indicated below.

OPTIONEE	BLOOM ENERGY CORPORATION
	By:
Signature		Signature
«FirstName» «LastName»		WILLIAM H. KURTZ
Print Name		Print Name
Residence Address:		Chief Financial Officer and Chief Commercial Officer
		Print Title

«Address1»

«Address2»

«Address3»

«City», «State» «Zip»

«Country»

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EXHIBIT A

2002 STOCK PLAN

EXERCISE NOTICE

Bloom Energy Corporation

1299 Orleans Drive

Sunnyvale, CA 94089

1. Exercise of Option. Effective as of today,             , 20    , the undersigned (“Optionee”) hereby elects to exercise Optionee’s option to purchase                  shares of the Common Stock (the “Shares”) of Bloom Energy Corporation (the “Company”) under and pursuant to the 2002 Stock Plan (the “Plan”) and the Stock Option Agreement dated             , 20     (the “Option Agreement”).

2. Delivery of Payment. Purchaser herewith delivers to the Company the full purchase price of the Shares, as set forth in the Option Agreement.

3. Representations of Optionee. Optionee acknowledges that Optionee has received, read and understood the Plan and the Option Agreement and agrees to abide by and be bound by their terms and conditions.

4. Rights as Shareholder. Until the issuance of the Shares (as evidenced by the appropriate entry on the books of the Company or of a duly authorized transfer agent of the Company), no right to vote or receive dividends or any other rights as a shareholder shall exist with respect to the Optioned Stock, notwithstanding the exercise of the Option. The Shares shall be issued to the Optionee as soon as practicable after the Option is exercised. No adjustment shall be made for a dividend or other right for which the record date is prior to the date of issuance except as provided in Section 12 of the Plan.

5. Company’s Right of First Refusal. Before any Shares held by Optionee or any transferee (either being sometimes referred to herein as the “Holder”) may be sold or otherwise transferred (including transfer by gift or operation of law), the Company or its assignee(s) shall have a right of first refusal to purchase the Shares on the terms and conditions set forth in this Section (the “Right of First Refusal”).

(a) Notice of Proposed Transfer. The Holder of the Shares shall deliver to the Company a written notice (the “Notice”) stating: (i) the Holder’s bona fide intention to sell or otherwise transfer such Shares; (ii) the name of each proposed purchaser or other transferee (“Proposed Transferee”); (iii) the number of Shares to be transferred to each Proposed Transferee; and (iv) the bona fide cash price or other consideration for which the Holder proposes to transfer the Shares (the “Offered Price”), and the Holder shall offer the Shares at the Offered Price to the Company or its assignee(s).

(b) Exercise of Right of First Refusal. At any time within thirty (30) days after receipt of the Notice, the Company and/or its assignee(s) may, by giving written notice to the Holder, elect to purchase all, but not less than all, of the Shares proposed to be transferred to any one or more of the Proposed Transferees, at the purchase price determined in accordance with subsection (c) below.

(c) Purchase Price. The purchase price (“Purchase Price”) for the Shares purchased by the Company or its assignee(s) under this Section shall be the Offered Price. If the Offered Price includes consideration other than cash, the cash equivalent value of the non-cash consideration shall be determined by the Board of Directors of the Company in good faith.

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(d) Payment. Payment of the Purchase Price shall be made, at the option of the Company or its assignee(s), in cash (by check), by cancellation of all or a portion of any outstanding indebtedness of the Holder to the Company (or, in the case of repurchase by an assignee, to the assignee), or by any combination thereof within 30 days after receipt of the Notice or in the manner and at the times set forth in the Notice.

(e) Holder’s Right to Transfer. If all of the Shares proposed in the Notice to be transferred to a given Proposed Transferee are not purchased by the Company and/or its assignee(s) as provided in this Section, then the Holder may sell or otherwise transfer such Shares to that Proposed Transferee at the Offered Price or at a higher price, provided that such sale or other transfer is consummated within 120 days after the date of the Notice, that any such sale or other transfer is effected in accordance with any applicable securities laws and that the Proposed Transferee agrees in writing that the provisions of this Section shall continue to apply to the Shares in the hands of such Proposed Transferee. If the Shares described in the Notice are not transferred to the Proposed Transferee within such period, a new Notice shall be given to the Company, and the Company and/or its assignees shall again be offered the Right of First Refusal before any Shares held by the Holder may be sold or otherwise transferred.

(f) Exception for Certain Family Transfers. Anything to the contrary contained in this Section notwithstanding, the transfer of any or all of the Shares during the Optionee’s lifetime or on the Optionee’s death by will or intestacy to the Optionee’s immediate family or a trust for the benefit of the Optionee’s immediate family shall be exempt from the provisions of this Section. “Immediate Family” as used herein shall mean spouse (including a qualified domestic partner), lineal descendant or antecedent, father, mother, brother or sister. In such case, the transferee or other recipient shall receive and hold the Shares so transferred subject to the provisions of this Section and Section 8 below, and there shall be no further transfer of such Shares except in accordance with the terms of this Section.

(g) Termination of Right of First Refusal. The Right of First Refusal shall terminate as to any Shares upon the first firm commitment underwritten sale of Common Stock of the Company to the general public pursuant to a registration statement filed with and declared effective by the Securities and Exchange Commission under the Securities Act of 1933, as amended.

6. Tax Consultation. Optionee understands that Optionee may suffer adverse tax consequences as a result of Optionee’s purchase or disposition of the Shares. Optionee represents that Optionee has consulted with any tax consultants Optionee deems advisable in connection with the purchase or disposition of the Shares and that Optionee is not relying on the Company for any tax advice.

7. Restrictive Legends and Stop-Transfer Orders.

(a) Legends. Optionee understands and agrees that the Company shall cause the legends set forth below or legends substantially equivalent thereto, to be placed upon any certificate(s) evidencing ownership of the Shares together with any other legends that may be required by the Company or by state or federal securities laws:

THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE “ACT”) AND MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL REGISTERED UNDER THE ACT OR, IN THE OPINION OF COMPANY COUNSEL SATISFACTORY TO THE ISSUER OF THESE SECURITIES, SUCH OFFER, SALE OR TRANSFER, PLEDGE OR HYPOTHECATION IS IN COMPLIANCE THEREWITH.

THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFER AND A RIGHT OF FIRST REFUSAL HELD BY THE

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ISSUER OR ITS ASSIGNEE(S) AS SET FORTH IN THE EXERCISE NOTICE BETWEEN THE ISSUER AND THE ORIGINAL HOLDER OF THESE SHARES, A COPY OF WHICH MAY BE OBTAINED AT THE PRINCIPAL OFFICE OF THE ISSUER. SUCH TRANSFER RESTRICTIONS AND RIGHT OF FIRST REFUSAL ARE BINDING ON TRANSFEREES OF THESE SHARES.

(b) Stop-Transfer Notices. Optionee agrees that, in order to ensure compliance with the restrictions referred to herein, the Company may issue appropriate “stop transfer” instructions to its transfer agent, if any, and that, if the Company transfers its own securities, it may make appropriate notations to the same effect in its own records.

(c) Refusal to Transfer. The Company shall not be required (i) to transfer on its books any Shares that have been sold or otherwise transferred in violation of any of the provisions of this Exercise Notice or (ii) to treat as owner of such Shares or to accord the right to vote or pay dividends to any purchaser or other transferee to whom such Shares shall have been so transferred.

8. Lock-Up Period. The undersigned agrees, in connection with the first registration of the Company’s securities under the Securities Act, upon request of the Company or the underwriters managing any such underwritten offering of the Company’s securities, not to (a) 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 undersigned or are thereafter acquired) or (b) 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 (a) or (b) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise, without the prior written consent of the Company or such underwriters, as the case may be, for such period of time (not to exceed 180 days) from the effective date of such registration as the Company or the underwriters may specify. The underwriters in connection with the Company’s initial public offering are intended third party beneficiaries of this Section 8 and shall have the right, power and authority to enforce the provisions hereof as though they were a party hereto. The undersigned agrees that the Company may instruct its transfer agent to place stop-transfer notations in its records to enforce the provisions of this Section 8. Any transferee of the Shares shall be bound by the provisions of this Section 8.

9. Successors and Assigns. The Company may assign any of its rights under this Exercise Notice to single or multiple assignees, and this Exercise Notice shall inure to the benefit of the successors and assigns of the Company. Subject to the restrictions on transfer herein set forth, this Exercise Notice shall be binding upon Optionee and his or her heirs, executors, administrators, successors and assigns.

10. Interpretation. Any dispute regarding the interpretation of this Exercise Notice shall be submitted by Optionee or by the Company forthwith to the Administrator which shall review such dispute at its next regular meeting. The resolution of such a dispute by the Administrator shall be final and binding on all parties.

11. Governing Law; Severability. This Exercise Notice is governed by the internal substantive laws, but not the choice of law rules, of the State of California.

12. Entire Agreement. The Plan and Option Agreement are incorporated herein by reference. This Exercise Notice, the Plan, the Option Agreement and the Investment Representation Statement constitute the entire agreement of the parties with respect to the subject matter hereof and supersede in their entirety all prior undertakings and agreements of the Company and Optionee with respect to the subject matter hereof, and may not be modified adversely to the Optionee’s interest except by means of a writing signed by the Company and Optionee.

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]

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Submitted by:	Accepted by:
OPTIONEE	BLOOM ENERGY CORPORATION
Signature	By:
Print Name	Title
Address:	Address:	Bloom Energy Corporation
		1299 Orleans Drive
		Sunnyvale, California 94089
	Date Received:

[Signature Page to Exercise Notice]

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EXHIBIT B

INVESTMENT REPRESENTATION STATEMENT

OPTIONEE	:
COMPANY	:	BLOOM ENERGY CORPORATION
SECURITY	:	COMMON STOCK
AMOUNT	:	SHARES
DATE	:

In connection with the purchase of the above-listed Securities, the undersigned Optionee represents to the Company the following:

(a) Optionee is aware of the Company’s business affairs and financial condition and has acquired sufficient information about the Company to reach an informed and knowledgeable decision to acquire the Securities. Optionee is acquiring these Securities for investment for Optionee’s own account only and not with a view to, or for resale in connection with, any “distribution” thereof within the meaning of the Securities Act of 1933, as amended (the “Securities Act”).

(b) Optionee acknowledges and understands that the Securities constitute “restricted securities” under the Securities Act and have not been registered under the Securities Act in reliance upon a specific exemption therefrom, which exemption depends upon, among other things, the bona fide nature of Optionee’s investment intent as expressed herein. In this connection, Optionee understands that, in the view of the Securities and Exchange Commission, the statutory basis for such exemption may be unavailable if Optionee’s representation was predicated solely upon a present intention to hold these Securities for the minimum capital gains period specified under tax statutes, for a deferred sale, for or until an increase or decrease in the market price of the Securities, or for a period of one year or any other fixed period in the future. Optionee further understands that the Securities must be held indefinitely unless they are subsequently registered under the Securities Act or an exemption from such registration is available. Optionee further acknowledges and understands that the Company is under no obligation to register the Securities. Optionee understands that the certificate evidencing the Securities will be imprinted with a legend which prohibits the transfer of the Securities unless they are registered or such registration is not required in the opinion of counsel satisfactory to the Company and any other legend required under applicable state securities laws.

(c) Optionee is familiar with the provisions of Rule 701 and Rule 144, each promulgated under the Securities Act, which, in substance, permit limited public resale of “restricted securities” acquired, directly or indirectly from the issuer thereof, in a non-public offering subject to the satisfaction of certain conditions. Rule 701 provides that if the issuer qualifies under Rule 701 at the time of the grant of the Option to the Optionee, the exercise will be exempt from registration under the Securities Act. In the event the Company becomes subject to the reporting requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, ninety (90) days thereafter (or such longer period as any market stand-off agreement may require) the Securities exempt under Rule 701 may be resold, subject to the satisfaction of certain of the conditions specified by Rule 144, including: (1) the resale being made through a broker in an unsolicited “broker’s transaction” or in transactions directly with a market maker (as said term is defined under the Securities Exchange Act of 1934); and, in the case of an affiliate, (2) the availability of certain public information about the Company, (3) the amount of Securities being sold during any three month period not exceeding the limitations specified in Rule 144(e), and (4) the timely filing of a Form 144, if applicable.

In the event that the Company does not qualify under Rule 701 at the time of grant of the Option, then the Securities may be resold in certain limited circumstances subject to the provisions of Rule 144, which requires the

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resale to occur not less than one year after the later of the date the Securities were sold by the Company or the date the Securities were sold by an affiliate of the Company, within the meaning of Rule 144; and, in the case of acquisition of the Securities by an affiliate, or by a non-affiliate who subsequently holds the Securities less than two years, the satisfaction of the conditions set forth in sections (1), (2), (3) and (4) of the paragraph immediately above.

(d) Optionee further understands that in the event all of the applicable requirements of Rule 701 or 144 are not satisfied, registration under the Securities Act, compliance with Regulation A, or some other registration exemption will be required; and that, notwithstanding the fact that Rules 144 and 701 are not exclusive, the Staff of the Securities and Exchange Commission has expressed its opinion that persons proposing to sell private placement securities other than in a registered offering and otherwise than pursuant to Rules 144 or 701 will have a substantial burden of proof in establishing that an exemption from registration is available for such offers or sales, and that such persons and their respective brokers who participate in such transactions do so at their own risk. Optionee understands that no assurances can be given that any such other registration exemption will be available in such event.

(e) The undersigned agrees, in connection with the first registration of the Company’s securities under the Securities Act, upon request of the Company or the underwriters managing any such underwritten offering of the Company’s securities, not to (a) 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 undersigned or are thereafter acquired) or (b) 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 (a) or (b) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise, without the prior written consent of the Company or such underwriters, as the case may be, for such period of time (not to exceed 180 days) from the effective date of such registration as the Company or the underwriters may specify. The underwriters in connection with the Company’s initial public offering are intended third party beneficiaries of this Section (e) and shall have the right, power and authority to enforce the provisions hereof as though they were a party hereto. The undersigned agrees that the Company may instruct its transfer agent to place stop-transfer notations in its records to enforce the provisions of this Section (e).

Signature of Optionee

Print Name

Date

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EX-10

Exhibit 10.3

BLOOM ENERGY CORPORATION

2012 EQUITY INCENTIVE PLAN

As Adopted on August 2, 2012

Amended May 29, 2014

1. PURPOSE. The purpose of this Plan is to provide incentives to attract, retain and motivate eligible persons whose present and potential contributions are important to the success of the Company, its Parent and Subsidiaries by offering eligible persons an opportunity to participate in the Company’s future performance through the grant of Awards covering Shares. Capitalized terms not defined in the text are defined in Section 14 hereof. Although this Plan is intended to be a written compensatory benefit plan within the meaning of Rule 701, grants may be made pursuant to this Plan that do not qualify for exemption under Rule 701 or Section 25102(o). Any requirement of this Plan that is required in law only because of Section 25102(o) need not apply if the Committee so provides.

2. SHARES SUBJECT TO THE PLAN.

2.1 Number of Shares Available. Subject to Sections 2.2 and 11 hereof, the total number of Shares reserved and available for grant and issuance pursuant to this Plan will be 7,000,000 Shares plus (i) shares that are subject to stock options or other awards granted under the Company’s 2002 Stock Plan (the “Prior Plan”) that cease to be subject to such stock options or other awards by forfeiture or otherwise after the Effective Date, (ii) shares issued under the Prior Plan after the Effective Date pursuant to the exercise of stock options that are, after the Effective Date, forfeited, (iii) shares issued under the Prior Plan that are repurchased by the Company at the original issue price and (iv) shares that are subject to stock options or other awards under the Prior Plan that are used to pay the exercise price of an option or to satisfy the tax withholding obligations related to any award. Subject to Sections 2.2 and 11 hereof, Shares subject to Awards that are cancelled, forfeited, settled in cash or that expire by their terms at any time will again be available for grant and issuance in connection with other Awards. In the event that Shares previously issued under the Plan are reacquired by the Company pursuant to a forfeiture provision, right of repurchase or right of first refusal, such Shares shall be added to the number of Shares then available for issuance under the Plan. At all times the Company will reserve and keep available a sufficient number of Shares as will be required to satisfy the requirements of all Awards granted and outstanding under this Plan. In no event shall the total number of Shares issued (counting each reissuance of a Share that was previously issued and then forfeited or repurchased by the Company as a separate issuance) under the Plan upon exercise of ISOs exceed 70,000,000 Shares (adjusted in proportion to any adjustments under Section 2.2 hereof) over the term of the Plan (the “ISO Limit”). Subject to Sections 2.2 and 11 hereof, in the event that the number of Shares reserved for issuance under the Plan is increased, the ISO Limit shall be automatically increased by such number of Shares such that the ISO Limit equals (a) ten (10) multiplied by (b) the number of Shares reserved for issuance under the Plan.

2.2 Adjustment of Shares. In the event that the number of outstanding shares of the Company’s Common Stock is changed by a stock dividend, recapitalization, stock split, reverse stock split, subdivision, combination, reclassification or similar change in the capital structure of the Company without consideration, then (a) the number of Shares reserved for issuance under this Plan, (b) the Exercise Prices of and number of Shares subject to outstanding Options and SARS, and (c) the Purchase Prices of and/or number of Shares subject to other outstanding Awards will be proportionately adjusted, subject to any required action by the Board or the stockholders of the Company and compliance with applicable securities laws; provided, however, that fractions of a Share will not be issued but will either be paid in cash at the Fair Market Value of such fraction of a Share or will be rounded down to the nearest whole Share, as determined by the Committee.

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3. PLAN FOR BENEFIT OF SERVICE PROVIDERS

3.1 Eligibility. The Committee will have the authority to select persons to receive Awards. ISOs (as defined in Section 4 hereof) may be granted only to employees (including officers and directors who are also employees) of the Company or of a Parent or Subsidiary of the Company. NQSOs (as defined in Section 4 hereof) and all other types of Awards may be granted to employees, officers, directors and consultants of the Company or any Parent or Subsidiary of the Company; provided such consultants render bona fide services not in connection with the offer and sale of securities in a capital-raising transaction when Rule 701 is to apply to the Award granted for such services. A person may be granted more than one Award under this Plan.

3.2 No Obligation to Employ. Nothing in this Plan or any Award granted under this Plan will confer or be deemed to confer on any Participant any right to continue in the employ of, or to continue any other relationship with, the Company or any Parent or Subsidiary or limit in any way the right of the Company or any Parent or Subsidiary to terminate Participant’s employment or other relationship at any time, with or without Cause.

4. OPTIONS. The Committee may grant Options to eligible persons described in Section 3 hereof and will determine whether such Options will be Incentive Stock Options within the meaning of the Code (“ISOs”) or Nonqualified Stock Options (“NQSOs”), the number of Shares subject to the Option, the Exercise Price of the Option, the period during which the Option may be exercised, and all other terms and conditions of the Option, subject to the following.

4.1 Form of Option Grant. Each Option granted under this Plan will be evidenced by an Award Agreement which will expressly identify the Option as an ISO or an NQSO (“Stock Option Agreement”), and will be in such form and contain such provisions (which need not be the same for each Participant) as the Committee may from time to time approve, and which will comply with and be subject to the terms and conditions of this Plan.

4.2 Date of Grant. The date of grant of an Option will be the date on which the Committee makes the determination to grant such Option, unless a later date is otherwise specified by the Committee. The Stock Option Agreement and a copy of this Plan will be delivered to the Participant within a reasonable time after the granting of the Option.

4.3 Exercise Period. Options may be exercisable immediately but subject to repurchase pursuant to Section 10 hereof or may be exercisable within the times or upon the events determined by the Committee as set forth in the Stock Option Agreement governing such Option; provided, however, that (a) no Option will be exercisable after the expiration of ten (10) years from the date the Option is granted; and (b) no ISO granted to a person who directly or by attribution owns more than ten percent (10%) of the total combined voting power of all classes of stock of the Company or of any Parent or Subsidiary (“Ten Percent Shareholder”) will be exercisable after the expiration of five (5) years from the date the ISO is granted. The Committee also may provide for Options to become exercisable at one time or from time to time, periodically or otherwise, in such number of Shares or percentage of Shares as the Committee determines.

4.4 Exercise Price. The Exercise Price of an Option will be determined by the Committee when the Option is granted and shall not be less than the Fair Market Value per Share unless expressly determined in writing by the Committee on the Option’s date of grant; provided that the

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Exercise Price of an ISO granted to a Ten Percent Shareholder will not be less than one hundred ten percent (110%) of the Fair Market Value of the Shares on the date of grant. Payment for the Shares purchased must be made in accordance with Section 8 hereof.

4.5 Method of Exercise. Options may be exercised only by delivery to the Company of a written stock option exercise agreement (the “Exercise Agreement”) in a form approved by the Committee (which need not be the same for each Participant). The Exercise Agreement will state (a) the number of Shares being purchased, (b) the restrictions imposed on the Shares purchased under such Exercise Agreement, if any, and (c) such representations and agreements regarding Participant’s investment intent and access to information and other matters, if any, as may be required or desirable by the Company to comply with applicable securities laws. Each Participant’s Exercise Agreement may be modified by (i) agreement of Participant and the Company or (ii) substitution by the Company, upon becoming a public company, in order to add the payment terms set forth in Section 8.1 that apply to a public company and such other terms as shall be necessary or advisable in order to exercise a public company option. Upon exercise of an Option, Participant shall execute and deliver to the Company the Exercise Agreement then in effect, together with payment in full of the Exercise Price for the number of Shares being purchased and payment of any applicable taxes.

4.6 Termination. Subject to earlier termination pursuant to Sections 11 and 13.1 hereof and notwithstanding the exercise periods set forth in the Stock Option Agreement, exercise of an Option will always be subject to the following terms and conditions.

4.6.1 Other than Death or Disability or for Cause. If the Participant is Terminated for any reason other than death, Disability or for Cause, then the Participant may exercise such Participant’s Options only to the extent that such Options are exercisable as to Vested Shares upon the Termination Date or as otherwise determined by the Committee. Such Options must be exercised by the Participant, if at all, as to all or some of the Vested Shares calculated as of the Termination Date or such other date determined by the Committee, within three (3) months after the Termination Date (or within such shorter time period, not less than thirty (30) days, or within such longer time period, not exceeding five (5) years, after the Termination Date as may be determined by the Committee, with any exercise beyond three (3) months after the Termination Date deemed to be an NQSO) but in any event, no later than the expiration date of the Options.

4.6.2 Death or Disability. If the Participant is Terminated because of Participant’s death or Disability (or the Participant dies within three (3) months after a Termination other than for Cause), then Participant’s Options may be exercised only to the extent that such Options are exercisable as to Vested Shares by Participant on the Termination Date or as otherwise determined by the Committee. Such options must be exercised by Participant (or Participant’s legal representative or authorized assignee), if at all, as to all or some of the Vested Shares calculated as of the Termination Date or such other date determined by the Committee, within twelve (12) months after the Termination Date (or within such shorter time period, not less than six (6) months, or within such longer time period, after the Termination Date as may be determined by the Committee, with any exercise beyond (a) three (3) months after the Termination Date when the Termination is for any reason other than the Participant’s death or disability, within the meaning of Section 22(e)(3) of the Code, or (b) twelve (12) months after the Termination Date when the Termination is for Participant’s disability, within the meaning of Section 22(e)(3) of the Code, deemed to be an NQSO) but in any event no later than the expiration date of the Options.

4.6.3 For Cause. If the Participant is terminated for Cause, the Participant may exercise such Participant’s Options, but not to an extent greater than such Options are exercisable as to Vested Shares upon the Termination Date and Participant’s Options shall expire on such Participant’s Termination Date, or at such later time and on such conditions as are determined by the Committee.

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4.7 Limitations on Exercise. The Committee may specify a reasonable minimum number of Shares that may be purchased on any exercise of an Option, provided that such minimum number will not prevent Participant from exercising the Option for the full number of Shares for which it is then exercisable.

4.8 Limitations on ISOs. The aggregate Fair Market Value (determined as of the date of grant) of Shares with respect to which ISOs are exercisable for the first time by a Participant during any calendar year (under this Plan or under any other incentive stock option plan of the Company or any Parent or Subsidiary of the Company) will not exceed One Hundred Thousand Dollars ($100,000). If the Fair Market Value of Shares on the date of grant with respect to which ISOs are exercisable for the first time by a Participant during any calendar year exceeds One Hundred Thousand Dollars ($100,000), then the Options for the first One Hundred Thousand Dollars ($100,000) worth of Shares to become exercisable in such calendar year will be ISOs and the Options for the amount in excess of One Hundred Thousand Dollars ($100,000) that become exercisable in that calendar year will be NQSOs. In the event that the Code or the regulations promulgated thereunder are amended after the Effective Date (as defined in Section 13.1 hereof) to provide for a different limit on the Fair Market Value of Shares permitted to be subject to ISOs, then such different limit will be automatically incorporated herein and will apply to any Options granted after the effective date of such amendment.

4.9 Modification, Extension or Renewal. The Committee may modify, extend or renew outstanding Options and authorize the grant of new Options in substitution therefor, provided that any such action may not, without the written consent of a Participant, impair any of such Participant’s rights under any Option previously granted. Any outstanding ISO that is modified, extended, renewed or otherwise altered will be treated in accordance with Section 424(h) of the Code. Subject to Section 4.10 hereof, the Committee may reduce the Exercise Price of outstanding Options without the consent of Participants by a written notice to them; provided, however, that the Exercise Price may not be reduced below the minimum Exercise Price that would be permitted under Section 4.4 hereof for Options granted on the date the action is taken to reduce the Exercise Price; provided, further, that the Exercise Price will not be reduced below the par value of the Shares, if any.

4.10 No Disqualification. Notwithstanding any other provision in this Plan, no term of this Plan relating to ISOs will be interpreted, amended or altered, nor will any discretion or authority granted under this Plan be exercised, so as to disqualify this Plan under Section 422 of the Code or, without the consent of the Participant, to disqualify any Participant’s ISO under Section 422 of the Code.

4.11 Information to Optionees. If the Company is relying on the exemption from registration under Section 12(g) of the Exchange Act pursuant to Rule 12h-1(f)(1) promulgated under the Exchange Act, then the Company shall provide the Required Information (as defined below) in the manner required by Rule 12h-1(f)(1) to all optionees every six months until the Company becomes subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or is no longer relying on the exemption pursuant to Rule 12h-1(f)(1); provided, that, prior to receiving access to the Required Information the optionee must agree to keep the Required Information confidential pursuant to a written agreement in the form provided by the Company. For purposes of this Section 4.11, “Required Information” means the information described in Rules 701(e)(3), (4) and (5) under the Securities Act, with the financial statements being not more than 180 days old before the sale of securities to which it relates.

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5. RESTRICTED STOCK. A Restricted Stock Award is an offer by the Company to sell to an eligible person Shares that are subject to certain specified restrictions. The Committee will determine to whom an offer will be made, the number of Shares the person may purchase, the Purchase Price, the restrictions to which the Shares will be subject, and all other terms and conditions of the Restricted Stock Award, subject to the following terms and conditions.

5.1 Form of Restricted Stock Award. All purchases under a Restricted Stock Award made pursuant to this Plan will be evidenced by an Award Agreement (“Restricted Stock Purchase Agreement”) that will be in such form (which need not be the same for each Participant) as the Committee will from time to time approve, and will comply with and be subject to the terms and conditions of this Plan. The Restricted Stock Award will be accepted by the Participant’s execution and delivery of the Restricted Stock Purchase Agreement and full payment for the Shares to the Company within thirty (30) days from the date the Restricted Stock Purchase Agreement is delivered to the person. If such person does not execute and deliver the Restricted Stock Purchase Agreement along with full payment for the Shares to the Company within such thirty (30) days, then the offer will terminate, unless otherwise determined by the Committee.

5.2 Purchase Price. The Purchase Price of Shares sold pursuant to a Restricted Stock Award will be determined by the Committee on the date the Restricted Stock Award is granted or at the time the purchase is consummated. Payment of the Purchase Price must be made in accordance with Section 8 hereof.

5.3 Restrictions. Restricted Stock Awards may be subject to the restrictions set forth in Sections 9 and 10 hereof or, with respect to a Restricted Stock Award to which Section 25102(o) is to apply, such other restrictions not inconsistent with Section 25102(o).

6. RESTRICTED STOCK UNITS.

6.1 Awards of Restricted Stock Units. A Restricted Stock Unit (“RSU”) is an Award covering a number of Shares that may be settled in cash, or by issuance of those Shares at a date in the future. No Purchase Price shall apply to an RSU settled in Shares other than the payment of the aggregate par value of all Shares issuable upon such settlement. All grants of Restricted Stock Units will be evidenced by an Award Agreement that will be in such form (which need not be the same for each Participant) as the Committee will from time to time approve, and will comply with and be subject to the terms and conditions of this Plan.

6.2 Form and Timing of Settlement. To the extent permissible under applicable law, the Committee may permit a Participant to defer payment under a RSU to a date or dates after the RSU is earned, provided that the terms of the RSU and any deferral satisfy the requirements of Section 409A of the Code (or any successor) and any regulations or rulings promulgated thereunder. Payment may be made in the form of cash or whole Shares or a combination thereof, all as the Committee determines.

7. STOCK APPRECIATION RIGHTS.

7.1 Awards of SARs. Stock Appreciation Rights (“SARs”) may be settled in cash, or Shares (which may consist of Restricted Stock or RSUs), having a value equal to the value determined by multiplying the difference between the Fair Market Value on the date of exercise over the Exercise Price and the number of Shares with respect to which the SAR is being settled. All grants of SARs made pursuant to this Plan will be evidenced by an Award Agreement that will be in such form (which need not be the same for each Participant) as the Committee will from time to time approve, and will comply with and be subject to the terms and conditions of this Plan.

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7.2 Exercise Period and Expiration Date. A SAR will be exercisable within the times or upon the occurrence of events determined by the Committee and set forth in the Award Agreement governing such SAR. The Award Agreement shall set forth the Expiration Date; provided that no SAR will be exercisable after the expiration of ten years from the date the SAR is granted.

7.3 Exercise Price. The Committee will determine the Exercise Price of the SAR when the SAR is granted, and which may not be less than the Fair Market Value on the date of grant and may be settled in cash or in Shares.

7.4 Termination. Subject to earlier termination pursuant to Sections 11 and 13.1 hereof and notwithstanding the exercise periods set forth in the Award Agreement, exercise of SARs will always be subject to the following terms and conditions.

7.4.1 Other than Death or Disability or for Cause. If the Participant is Terminated for any reason other than death, Disability or for Cause, then the Participant may exercise such Participant’s SARs only to the extent that such SARs are exercisable as to vested Shares upon the Termination Date or as otherwise determined by the Committee. SARs must be exercised by the Participant, if at all, as to all or some of the vested Shares calculated as of the Termination Date or such other date determined by the Committee, within three (3) months after the Termination Date (or within such shorter time period, not less than thirty (30) days, or within such longer time period, not exceeding five (5) years, after the Termination Date as may be determined by the Committee) but in any event, no later than the expiration date of the SARs.

7.4.2 Death or Disability. If the Participant is Terminated because of Participant’s death or Disability (or the Participant dies within three (3) months after a Termination other than for Cause), then Participant’s SARs may be exercised only to the extent that such SARs are exercisable as to vested Shares by Participant on the Termination Date or as otherwise determined by the Committee. Such SARs must be exercised by Participant (or Participant’s legal representative or authorized assignee), if at all, as to all or some of the vested Shares calculated as of the Termination Date or such other date determined by the Committee, within twelve (12) months after the Termination Date (or within such shorter time period, not less than six (6) months, or within such longer time period, not exceeding five (5) years, after the Termination Date as may be determined by the Committee) but in any event no later than the expiration date of the SARs.

7.4.3 For Cause. If the Participant is terminated for Cause, the Participant may exercise such Participant’s SARs, but not to an extent greater than such SARs are exercisable as to vested Shares upon the Termination Date and Participant’s SARs shall expire on such Participant’s Termination Date, or at such later time and on such conditions as are determined by the Committee.

8. PAYMENT FOR PURCHASES AND EXERCISES.

8.1 Payment in General. Payment for Shares acquired pursuant to this Plan may be made in cash (or cash equivalent acceptable to the Company) or, where expressly approved for the Participant by the Committee and where permitted by law:

(a) by cancellation of indebtedness of the Company owed to the Participant;

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(b) by surrender of shares of the Company that are clear of all liens, claims, encumbrances or security interests and: (i) for which the Company has received “full payment of the purchase price” within the meaning of SEC Rule 144 (and, if such shares were purchased from the Company by use of a promissory note, such note has been fully paid with respect to such shares) or (ii) that were obtained by Participant in the public market;

(c) by tender of a full recourse promissory note having such terms as may be approved by the Committee and bearing interest at a rate sufficient to avoid imputation of income under Sections 483 and 1274 of the Code; provided, however, that Participants who are not employees or directors of the Company will not be entitled to purchase Shares with a promissory note unless the note is adequately secured by collateral other than the Shares; provided, further, that the portion of the Exercise Price or Purchase Price, as the case may be, equal to the par value of the Shares must be paid in cash or other legal consideration permitted by the laws under which the Company is then incorporated or organized;

(d) by waiver of compensation due or accrued to the Participant from the Company for services rendered;

(e) by participating in a formal cashless exercise program implemented by the Committee in connection with the Plan;

(f) subject to compliance with applicable law and solely in the discretion of the Committee, by exercising as set forth below, provided that a public market for the Company’s Common Stock exists:

(i) through a “same day sale” commitment from the Participant and a broker-dealer whereby the Participant irrevocably elects to exercise the Award and to sell a portion of the Shares so purchased sufficient to pay the total Exercise Price or Purchase Price, and whereby the broker-dealer irrevocably commits upon receipt of such Shares to forward the total Exercise Price or Purchase Price directly to the Company; or

(g) by any combination of the foregoing or any other method of payment approved by the Committee.

8.2 Withholding Taxes.

8.2.1 Withholding Generally. Whenever Shares are to be issued in satisfaction of Awards granted under this Plan, the Company may require the Participant to remit to the Company an amount sufficient to satisfy applicable tax withholding requirements prior to the delivery of any certificate or certificates for such Shares. Applicable tax withholding requirements may be satisfied in the manner set forth in the applicable Award Agreement. Whenever, under this Plan, payments in satisfaction of Awards are to be made in cash by the Company, such payment will be net of an amount sufficient to satisfy applicable tax withholding requirements.

8.2.2 Stock Withholding. When, under applicable tax laws, a Participant incurs tax liability in connection with the exercise or vesting of any Award that is subject to tax withholding and the Participant is obligated to pay the Company the amount required to be withheld, the Committee may in its sole discretion allow the Participant to satisfy the minimum tax withholding obligation by electing to have the Company withhold from the Shares to be issued up to the minimum number of Shares having a Fair Market Value on the date that the amount of tax to be withheld is to be determined that is not more than the minimum amount to be withheld; but in no event will the Company

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withhold Shares if such withholding would result in adverse accounting consequences to the Company. Any elections by a Participant to have Shares withheld for this purpose will be made in accordance with the requirements established by the Committee for such elections and be in writing in a form acceptable to the Committee.

9. RESTRICTIONS ON AWARDS.

9.1 Transferability. Except as permitted by the Committee, Awards granted under this Plan, and any interest therein, will not be transferable or assignable by Participant, other than by will or by the laws of descent and distribution, and, with respect to NQSOs, by instrument to an inter vivos or testamentary trust in which the NQSOs are to be passed to beneficiaries upon the death of the trustor (settlor), or by gift to “family member” as that term is defined in Rule 701, and may not be made subject to execution, attachment or similar process. For the avoidance of doubt, the prohibition against assignment and transfer applies to a stock option and, prior to exercise, the shares to be issued on exercise of a stock option, and pursuant to the foregoing sentence shall be understood to include, without limitation, a prohibition against any pledge, hypothecation, or other transfer, including any short position, any “put equivalent position” or any “call equivalent position” (in each case, as defined in Rule 16a-1 promulgated under the Exchange Act. During the lifetime of the Participant an Award will be exercisable only by the Participant or Participant’s legal representative and any elections with respect to an Award may be made only by the Participant or Participant’s legal representative. The terms of an Option shall be binding upon the executor, administrator, successors and assigns of the Participant who is a party thereto.

9.2 Securities Law and Other Regulatory Compliance. Although this Plan is intended to be a written compensatory benefit plan within the meaning of Rule 701 promulgated under the Securities Act, grants may be made pursuant to this Plan that do not qualify for exemption under Rule 701 or Section 25102(o). Any requirement of this Plan which is required in law only because of Section 25102(o) need not apply with respect to a particular Award to which Section 25102(o) will not apply. An Award will not be effective unless such Award is in compliance with all applicable U.S. Federal and state securities laws, rules and regulations of any governmental body, and the requirements of any stock exchange or automated quotation system upon which the Shares may then be listed or quoted, as they are in effect on the date of grant of the Award and also on the date of exercise or other issuance. Notwithstanding any other provision in this Plan, the Company will have no obligation to issue or deliver certificates for Shares under this Plan prior to (a) obtaining any approvals from governmental agencies that the Company determines are necessary or advisable, and/or (b) compliance with any exemption, completion of any registration or other qualification of such Shares under any state or U.S. Federal law or ruling of any governmental body that the Company determines to be necessary or advisable. The Company will be under no obligation to register the Shares with the SEC or to effect compliance with the exemption, registration, qualification or listing requirements of any state securities laws, stock exchange or automated quotation system, and the Company will have no liability for any inability or failure so do.

9.3 Exchange and Buyout of Awards. The Committee may, at any time or from time to time, authorize the Company, with the consent of the respective Participants, to issue new Awards in exchange for the surrender and cancellation of any or all outstanding Awards. The Committee may at any time buy from a Participant an Award previously granted with payment in cash, Shares (including Restricted Stock) or other consideration, based on such terms and conditions as the Committee and the Participant may agree.

10. RESTRICTIONS ON SHARES.

10.1 Privileges of Stock Ownership. No Participant will have any of the rights of a stockholder with respect to any Shares until such Shares are issued to the Participant. After Shares are

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issued to the Participant, the Participant will be a stockholder and have all the rights of a stockholder with respect to such Shares, including the right to vote and receive all dividends or other distributions made or paid with respect to such Shares; provided, that if such Shares are Restricted Stock, then any new, additional or different securities the Participant may become entitled to receive with respect to such Shares by virtue of a stock dividend, stock split or any other change in the corporate or capital structure of the Company will be subject to the same restrictions as the Restricted Stock. The Participant will have no right to retain such stock dividends or stock distributions with respect to Unvested Shares that are repurchased as described in this Section 10.

10.2 Rights of First Refusal and Repurchase. At the discretion of the Committee, the Company may reserve to itself and/or its assignee(s) in the Award Agreement (a) a right of first refusal to purchase all Shares that a Participant (or a subsequent transferee) may propose to transfer to a third party, provided that such right of first refusal terminates upon the Company’s initial public offering of Common Stock pursuant to an effective registration statement filed under the Securities Act and (b) a right to repurchase Unvested Shares held by a Participant for cash and/or cancellation of purchase money indebtedness owed to the Company by the Participant following such Participant’s Termination at any time.

10.3 Escrow; Pledge of Shares. To enforce any restrictions on a Participant’s Shares, the Committee may require the Participant to deposit all certificates representing Shares, together with stock powers or other instruments of transfer approved by the Committee, appropriately endorsed in blank, with the Company or an agent designated by the Company to hold in escrow until such restrictions have lapsed or terminated. The Committee may cause a legend or legends referencing such restrictions to be placed on the certificate. Any Participant who is permitted to execute a promissory note as partial or full consideration for the purchase of Shares under this Plan will be required to pledge and deposit with the Company all or part of the Shares so purchased as collateral to secure the payment of Participant’s obligation to the Company under the promissory note; provided, however, that the Committee may require or accept other or additional forms of collateral to secure the payment of such obligation and, in any event, the Company will have full recourse against the Participant under the promissory note notwithstanding any pledge of the Participant’s Shares or other collateral. In connection with any pledge of the Shares, Participant will be required to execute and deliver a written pledge agreement in such form as the Committee will from time to time approve. The Shares purchased with the promissory note may be released from the pledge on a pro rata basis as the promissory note is paid.

10.4 Securities Law Restrictions. All certificates for Shares or other securities delivered under this Plan will be subject to such stock transfer orders, legends and other restrictions as the Committee may deem necessary or advisable, including restrictions under any applicable U.S. Federal, state or foreign securities law, or any rules, regulations and other requirements of the SEC or any stock exchange or automated quotation system upon which the Shares may be listed or quoted.

11. CORPORATE TRANSACTIONS.

11.1 Acquisitions or Other Combinations. In the event that the Company is subject to an Acquisition or Other Combination, outstanding Awards acquired under the Plan shall be subject to the agreement evidencing the Acquisition or Other Combination, which need not treat all outstanding Awards in an identical manner. Such agreement, without the Participant’s consent, shall provide for one or more of the following with respect to all outstanding Awards as of the effective date of such Acquisition or Other Combination:

(a) The continuation of such outstanding Awards by the Company (if the Company is the successor entity).

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(b) The assumption of outstanding Awards by the successor or acquiring entity (if any) of such Acquisition or Other Combination (or by any of its Parents, if any), which assumption, will be binding on all Participants; provided that the exercise price and the number and nature of shares issuable upon exercise of any such option or stock appreciation right, or any award that is subject to Section 409A of the Code, will be adjusted appropriately pursuant to Section 424(a) of the Code.

(c) The substitution by the successor or acquiring entity in such Acquisition or Other Combination (or by any of its Parents, if any) of equivalent awards with substantially the same terms for such outstanding Awards (except that the exercise price and the number and nature of shares issuable upon exercise of any such option or stock appreciation right, or any award that is subject to Section 409A of the Code, will be adjusted appropriately pursuant to Section 424(a) of the Code).

(d) The full exercisability or vesting and accelerated expiration of outstanding Awards.

(e) The settlement of the full value of such outstanding Award (whether or not then vested or exercisable) in cash, cash equivalents, or securities of the successor entity (or its Parent, if any) with a Fair Market Value equal to the required amount, followed by the cancellation of such Awards; provided however, that such Award may be cancelled if such Award has no value, as determined by the Committee, in its discretion. Subject to Section 409A of the Code, such payment may be made in installments and may be deferred until the date or dates when the Award would have become exercisable or vested. Such payment may be subject to vesting based on the Participant’s continued service, provided that the vesting schedule shall not be less favorable to the Participant than the schedule under which the Award would have become vested or exercisable. For purposes of this Section 11.1(e), the Fair Market value of any security shall be determined without regard to any vesting conditions that may apply to such security.

(f) The cancellation of outstanding Awards in exchange for no consideration.

Immediately following an Acquisition or Other Combination, outstanding Awards shall terminate and cease to be outstanding, except to the extent such Awards, have been continued, assumed or substituted, as described in Sections 11.1(a), (b) and/or (c).

11.2 Assumption of Awards by the Company. The Company, from time to time, also may substitute or assume outstanding awards granted by another entity, whether in connection with an acquisition of such other entity or otherwise, by either (a) granting an Award under this Plan in substitution of such other entity’s award or (b) assuming and/or converting such award as if it had been granted under this Plan if the terms of such assumed award could be applied to an Award granted under this Plan. Such substitution or assumption will be permissible if the holder of the substituted or assumed award would have been eligible to be granted an Award under this Plan if the other entity had applied the rules of this Plan to such grant. In the event the Company assumes an award granted by another entity, the terms and conditions of such award will remain unchanged (except that the exercise price and the number and nature of shares issuable upon exercise of any such option or stock appreciation right, or any award that is subject to Section 409A of the Code, will be adjusted appropriately pursuant to Section 424(a) of the Code). In the event the Company elects to grant a new Option or SAR rather than assuming an existing option or stock appreciation right, such new Option or SAR may be granted with a similarly adjusted Exercise Price.

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12. ADMINISTRATION.

12.1 Committee Authority. This Plan will be administered by the Committee or the Board if no Committee is created by the Board. Subject to the general purposes, terms and conditions of this Plan, and to the direction of the Board, the Committee will have full power to implement and carry out this Plan. Without limitation, the Committee will have the authority to:

(a) construe and interpret this Plan, any Award Agreement and any other agreement or document executed pursuant to this Plan;

(b) prescribe, amend, expand, modify and rescind or terminate rules and regulations relating to this Plan;

(c) approve persons to receive Awards;

(d) determine the form and terms of Awards;

(e) determine the number of Shares or other consideration subject to Awards granted under this Plan;

(f) determine whether Awards will be granted singly, in combination with, in tandem with, in replacement of, or as alternatives to, other Awards under this Plan or awards under any other incentive or compensation plan of the Company or any Parent or Subsidiary of the Company;

(g) grant waivers of any conditions of this Plan or any Award;

(h) determine the terms of vesting, exercisability and payment of Awards to be granted pursuant to this Plan;

(i) correct any defect, supply any omission, or reconcile any inconsistency in this Plan, any Award, any Award Agreement, any Exercise Agreement or any Restricted Stock Purchase Agreement;

(j) determine whether an Award has been earned;

(k) extend the vesting period beyond a Participant’s Termination Date; and

(l) make all other determinations necessary or advisable in connection with the administration of this Plan.

12.2 Committee Composition and Discretion. The Board may delegate full administrative authority over the Plan and Awards to a Committee consisting of at least one member of the Board (or such greater number as may then be required by applicable law). Unless in contravention of any express terms of this Plan or Award, any determination made by the Committee with respect to any Award will be made in its sole discretion either (a) at the time of grant of the Award, or (b) subject to Section 4.9 hereof, at any later time. Any such determination will be final and binding on the Company and on all persons having an interest in any Award under this Plan. To the extent permitted by applicable law, the Committee may delegate to one or more officers of the Company the authority to grant an Award under this Plan, provided that each such officer is a member of the Board.

12.3 Nonexclusivity of the Plan. Neither the adoption of this Plan by the Board, the submission of this Plan to the stockholders of the Company for approval, nor any provision of this Plan will be construed as creating any limitations on the power of the Board to adopt such additional compensation arrangements as it may deem desirable, including, without limitation, the granting of stock options and other equity awards otherwise than under this Plan, and such arrangements may be either generally applicable or applicable only in specific cases.

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12.4 Governing Law. This Plan and all agreements hereunder shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to that body of laws pertaining to conflict of laws.

13. EFFECTIVENESS, AMENDMENT AND TERMINATION OF THE PLAN.

13.1 Adoption and Stockholder Approval. This Plan will become effective on the date that it is adopted by the Board (the “Effective Date”). This Plan will be approved by the stockholders of the Company (excluding Shares issued pursuant to this Plan), consistent with applicable laws, within twelve (12) months before or after the Effective Date. Upon the Effective Date, the Board may grant Awards pursuant to this Plan; provided, however, that: (a) no Option or SAR may be exercised prior to initial stockholder approval of this Plan; (b) no Option or SAR granted pursuant to an increase in the number of Shares approved by the Board shall be exercised prior to the time such increase has been approved by the stockholders of the Company; (c) in the event that initial stockholder approval is not obtained within the time period provided herein, all Awards for which only the exemption from California’s securities qualification requirements provided by Section 25102(o) can apply shall be canceled, any Shares issued pursuant to any such Award shall be canceled and any purchase of such Shares issued hereunder shall be rescinded; and (d) Awards (to which only the exemption from California’s securities qualification requirements provided by Section 25102(o) can apply) granted pursuant to an increase in the number of Shares approved by the Board which increase is not approved by stockholders within the time then required under Section 25102(o) shall be canceled, any Shares issued pursuant to any such Awards shall be canceled, and any purchase of Shares subject to any such Award shall be rescinded.

13.2 Term of Plan. Unless earlier terminated as provided herein, this Plan will automatically terminate ten (10) years after the later of (i) the Effective Date, or (ii) the most recent increase in the number of Shares reserved under Section 2 that was approved by stockholders.

13.3 Amendment or Termination of Plan. Subject to Section 4.9 hereof, the Board may at any time (a) terminate or amend this Plan in any respect, including without limitation amendment of any form of Award Agreement or instrument to be executed pursuant to this Plan and (b) terminate any and all outstanding Options or SARs upon a dissolution or liquidation of the Company, followed by the payment of creditors and the distribution of any remaining funds to the Company’s stockholders; provided, however, that the Board will not, without the approval of the stockholders of the Company, amend this Plan in any manner that requires such stockholder approval pursuant to Section 25102(o) or pursuant to the Code or the regulations promulgated under the Code as such provisions apply to ISO plans. The termination of the Plan, or any amendment thereof, shall not affect any Share previously issued or any Award previously granted under the Plan.

14. DEFINITIONS. For all purposes of this Plan, the following terms will have the following meanings.

“Acquisition,” for purposes of Section 11, means:

(a) any consolidation or merger in which the Company is a constituent entity or is a party in which the voting stock and other voting securities of the Company that are outstanding immediately prior to the consummation of such consolidation or merger represent, or are converted into, securities of the surviving entity of such consolidation or merger (or of any Parent of such surviving entity) that, immediately after the consummation of such consolidation or merger, together possess less than fifty percent (50%) of the total voting power of all voting securities of such surviving entity (or of any of its Parents, if any) that are outstanding immediately after the consummation of such consolidation or merger;

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(b) a sale or other transfer by the holders thereof of outstanding voting stock and/or other voting securities of the Company possessing more than fifty percent (50%) of the total voting power of all outstanding voting securities of the Company, whether in one transaction or in a series of related transactions, pursuant to an agreement or agreements to which the Company is a party and that has been approved by the Board, and pursuant to which such outstanding voting securities are sold or transferred to a single person or entity, to one or more persons or entities who are Affiliates of each other, or to one or more persons or entities acting in concert; or

(c) the sale, lease, transfer or other disposition, in a single transaction or series of related transactions, by the Company and/or any Subsidiary or Subsidiaries of the Company, of all or substantially all the assets of the Company and its Subsidiaries taken as a whole, (or, if substantially all of the assets of the Company and its Subsidiaries taken as a whole are held by one or more Subsidiaries, the sale or disposition (whether by consolidation, merger, conversion or otherwise) of such Subsidiaries of the Company), except where such sale, lease, transfer or other disposition is made to the Company or one or more wholly owned Subsidiaries of the Company (an “Acquisition by Sale of Assets”).

“Affiliate” of a specified person means a person that directly, or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, the person specified (where, for purposes of this definition, the term “control” (including the terms controlling, controlled by and under common control with) means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting securities, by contract, or otherwise.

“Award” means any award pursuant to the terms and conditions of this Plan, including any Option, Restricted Stock Unit, Stock Appreciation Right or Restricted Stock Award.

“Award Agreement” means, with respect to each Award, the signed written agreement between the Company and the Participant setting forth the terms and conditions of the Award as approved by the Committee.

“Board” means the Board of Directors of the Company.

“Cause” means Termination because of (a) Participant’s unauthorized misuse of the Company or a Parent or Subsidiary of the Company’s trade secrets or proprietary information, (b) Participant’s conviction of or plea of nolo contendere to a felony or a crime involving moral turpitude, (c) Participant’s committing an act of fraud against the Company or a Parent or Subsidiary of the Company or (d) Participant’s gross negligence or willful misconduct in the performance of his or her duties that has had or will have a material adverse effect on the Company or Parent or Subsidiary of the Company’ reputation or business.

“Code” means the U.S. Internal Revenue Code of 1986, as amended.

“Committee” means the committee created and appointed by the Board to administer this Plan, or if no committee is created and appointed, the Board.

“Company” means Bloom Energy Corporation, or any successor corporation.

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“Disability” means a disability, whether temporary or permanent, partial or total, as determined by the Committee.

“Exchange Act” means the U.S. Securities Exchange Act of 1934, as amended.

“Exercise Price” means the price per Share at which a holder of an Option may purchase Shares issuable upon exercise of the Option.

“Fair Market Value” means, as of any date, the value of a share of the Company’s Common Stock determined as follows:

(a) if such Common Stock is then publicly traded on a national securities exchange, its closing price on the date of determination on the principal national securities exchange on which the Common Stock is listed or admitted to trading as reported in The Wall Street Journal;

(b) if such Common Stock is publicly traded but is not listed or admitted to trading on a national securities exchange, the average of the closing bid and asked prices on the date of determination as reported by The Wall Street Journal (or, if not so reported, as otherwise reported by any newspaper or other source as the Committee may determine); or

(c) if none of the foregoing is applicable to the valuation in question, by the Committee in good faith.

“Option” means an award of an option to purchase Shares pursuant to Section 4 of this Plan.

“Other Combination” for purposes of Section 11 means any (a) consolidation or merger in which the Company is a constituent entity and is not the surviving entity of such consolidation or merger or (b) any conversion of the Company into another form of entity; provided that such consolidation, merger or conversion does not constitute an Acquisition.

“Parent” of a specified entity means, any entity that, either directly or indirectly, owns or controls such specified entity, where for this purpose, “control” means the ownership of stock, securities or other interests that possess at least a majority of the voting power of such specified entity (including indirect ownership or control of such stock, securities or other interests).

“Participant” means a person who receives an Award under this Plan.

“Plan” means this 2012 Equity Incentive Plan, as amended from time to time.

“Purchase Price” means the price at which a Participant may purchase Restricted Stock pursuant to this Plan.

“Restricted Stock” means Shares purchased pursuant to a Restricted Stock Award under this Plan.

“Restricted Stock Award” means an award of Shares pursuant to Section 5 hereof.

“Restricted Stock Unit” or “RSU” means an award made pursuant to Section 6 hereof.

“Rule 701” means Rule 701 et seq promulgated by the SEC under the Securities Act.

“SEC” means the U.S. Securities and Exchange Commission.

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“Section 25102(o)” means Section 25102(o) of the California Corporations Code.

“Securities Act” means the U.S. Securities Act of 1933, as amended.

“Shares” means shares of the Company’s Common Stock, $0.0001, par value per share, reserved for issuance under this Plan, as adjusted pursuant to Sections 2.2 and 11 hereof, and any successor security.

“Stock Appreciation Right” or “SAR” means an award granted pursuant to Section 7 hereof.

“Subsidiary” means any entity (other than the Company) in an unbroken chain of entities beginning with the Company if each of the entities other than the last entity in the unbroken chain owns stock or other equity securities representing fifty percent (50%) or more of the total combined voting power of all classes of stock or other equity securities in one of the other entities in such chain.

“Termination” or “Terminated” means, for purposes of this Plan with respect to a Participant, that the Participant has for any reason ceased to provide services as an employee, officer, director or consultant to the Company or a Parent or Subsidiary of the Company. A Participant will not be deemed to have ceased to provide services in the case of sick leave, military leave, or any other leave of absence approved by the Committee; provided that such leave is for a period of not more than ninety (90) days (a) unless reinstatement (or, in the case of an employee with an ISO, reemployment) upon the expiration of such leave is guaranteed by contract or statute, or (b) unless provided otherwise pursuant to formal policy adopted from time to time by the Company’s Board and issued and promulgated in writing. In the case of any Participant on sick leave, military leave or an approved leave of absence, the Committee may make such provisions respecting suspension of vesting of the Award while on leave from the Company or a Parent or Subsidiary of the Company as it may deem appropriate, except that in no event may an Option be exercised after the expiration of the term set forth in the Stock Option Agreement. The Committee will have sole discretion to determine whether a Participant has ceased to provide services and the effective date on which the Participant ceased to provide services (the “Termination Date”).

“Unvested Shares” means “Unvested Shares” as defined in the Award Agreement for an Award.

“Vested Shares” means “Vested Shares” as defined in the Award Agreement.

* * * * * * * * * * *

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BLOOM ENERGY CORPORATION

2012 EQUITY INCENTIVE PLAN

NOTICE OF STOCK OPTION GRANT

You (the “Participant”) have been granted an option (the “Option”) to purchase shares of Common Stock (the “Shares”) of Bloom Energy Corporation, a Delaware corporation (the “Company”), pursuant to the Company’s 2012 Equity Incentive Plan, as amended from time to time (the “Plan”) on the terms, and subject to the conditions, described below.

Participant:
Number of Shares:
Exercise Price Per Share:	US$
Date of Grant:
Vesting Commencement Date:
Expiration Date:	The date ten (10) years after the Date of Grant, with earlier expiration in the event of termination of service as provided in Section 3 of the Stock Option Agreement.
Tax Status of Option:	¨ Incentive Stock Option              ¨ Nonqualified Stock Option
(Check One)

Vesting Schedule: Provided Participant continues to provide services to the Company or any Subsidiary or Parent of the Company, the Option will become vested as to portions of the Shares as follows: (a) the Option will not be vested with respect to any of the Shares prior to the first anniversary of the Vesting Commencement Date; (b) the Option will become vested as to 20% of the Shares on the first anniversary of the Vesting Commencement Date; and (c) the Option will become vested and exercisable as to 1/60^th of the Shares monthly thereafter until 100% of the Shares are vested.

Exercise Schedule: ¨ Same as Vesting Schedule

Additional Terms: ¨ If this boxed is checked, the additional terms and conditions set forth on Attachment 1 hereto (which must be executed by the Company and the Participant) are applicable and are incorporated herein by reference. (No document need be attached as Attachment 1 if the box is not checked.)

General: By their signatures below, Participant and the Company agree that the Option is granted under and governed by this Notice and by the provisions of the Plan and the Stock Option Agreement attached hereto as Exhibit I. The Plan and the Stock Option Agreement are incorporated herein by reference. Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Plan or in the Stock Option Agreement, as applicable. Participant acknowledges receipt of a copy of the Plan and the Stock Option Agreement, represents that Participant has carefully read and is familiar with their provisions, and hereby accepts the Option subject to all of their terms and conditions. Participant acknowledges that there may be adverse tax consequences upon exercise of the Option or disposition of the Shares and that Participant should consult a tax adviser prior to such exercise or disposition.

This Notice may be executed and delivered by facsimile and upon such delivery the facsimile signature will be deemed to have the same effect as if the original signature had been delivered to the other party. Additionally, this Notice may be executed and delivered electronically whether via the Company’s intranet or the Internet site of a third party or via email or such other means of electronic delivery specified by the Company.

By Participant’s acceptance hereof (whether written, electronic or otherwise), Participant agrees, to the fullest extent permitted by law, that in lieu of receiving documents in paper format, Participant accepts the electronic delivery of any documents the Company, or any third party involved in administering the Plan which the Company may designate, may deliver in connection with this grant (including the Plan, the Notice of Grant, this Stock Option Agreement, the 701 Disclosures, account statements, or other communications or information) whether via the Company’s intranet or the Internet site of such third party or via email or such other means of electronic delivery specified by the Company.

Furthermore, by Participant’s acceptance hereof (whether written, elective or otherwise), Participant agrees to participate in the Plan through an on-line or electronic system established and maintained by the Company or a third party designated by the Company.

Bloom Energy Corporation	Participant
Signature:	Signature:
Typed Name:
Title:
ATTACHMENT: Exhibit I – Stock Option Agreement

EXHIBIT I

BLOOM ENERGY CORPORATION

2012 EQUITY INCENTIVE PLAN

STOCK OPTION AGREEMENT

This Stock Option Agreement (the “Agreement”) is made and entered into as of the date of grant (the “Date of Grant”) set forth on the notice of stock option grant attached as the facing page hereto (the “Grant Notice”) by and between Bloom Energy Corporation, a Delaware corporation (the “Company”), and the participant named on the Grant Notice (the “Participant”). Capitalized terms not defined herein shall have the meaning ascribed to them in the Company’s 2012 Equity Incentive Plan, as amended from time to time (the “Plan”), or in the Grant Notice, as applicable.

1. GRANT OF OPTION. The Company hereby grants to Participant an option (this “Option”) to purchase the total number of shares of Common Stock of the Company (the “Common Stock”) set forth in the Grant Notice as Number of Shares (the “Shares”) at the Exercise Price Per Share set forth in the Grant Notice (the “Exercise Price”), subject to all of the terms and conditions of this Agreement (including the country-specific terms and conditions for non-U.S. Participants set forth in Exhibit A) and the Plan. If designated as an Incentive Stock Option in the Grant Notice, the Option is intended to qualify as an “incentive stock option” (the “ISO”) within the meaning of Section 422 of the Internal Revenue Code of 1986, as amended (the “Code”), except that if on the date of grant the Participant is not subject to U.S. income tax, then this Option shall be a NQSO.

2. EXERCISE PERIOD.

2.1 Exercise Period of Option. This Option will become vested during its term as to portions of the Shares in accordance with the Vesting Schedule set forth in the Grant Notice. Notwithstanding any provision in the Plan or this Agreement to the contrary, Options for Unvested Shares will not be exercisable on or after Participant’s Termination Date.

2.2 Vesting of Options. Shares that are vested pursuant to the schedule set forth in Section 2.1 are “Vested Shares.” Shares that are not vested pursuant to the schedule set forth in Section 2.1 are “Unvested Shares.”

2.3 Expiration. The Option shall expire on the Expiration Date set forth above or earlier as provided in Section 3 below or pursuant to Section 4.6 of the Plan.

3. TERMINATION.

3.1 Termination for Any Reason Except Death, Disability or Cause. If Participant is Terminated for any reason, except death, Disability or for Cause, the Option, to the extent (and only to the extent) that it would have been exercisable by Participant on the Termination Date, may be exercised by Participant no later than three (3) months after the Termination Date, but in any event no later than the Expiration Date.

3.2 Termination Because of Death or Disability. If Participant is Terminated because of death or Disability of Participant (or Participant dies within three (3) months of Termination when Termination is for any reason other than Participant’s Disability or for Cause), the Option, to the extent that it is exercisable by Participant on the Termination Date, may be exercised by Participant (or Participant’s legal representative) no later than twelve (12) months after the Termination Date, but in any

event no later than the Expiration Date. Any exercise beyond (i) three (3) months after the Termination Date when the Termination is for any reason other than the Participant’s death or disability, within the meaning of Section 22(e)(3) of the Code; or (ii) twelve (12) months after the Termination Date when the termination is for Participant’s disability, within the meaning of Section 22(e)(3) of the Code, is deemed to be an NQSO.

3.3 Termination for Cause. If the Participant is terminated for Cause, the Participant may exercise such Participant’s Options, but not to an extent greater than such Options are exercisable as to Vested Shares upon the Termination Date and Participant’s Options shall expire on such Participant’s Termination Date, or at such later time and on such conditions as are determined by the Committee.

3.4 No Obligation to Employ. Nothing in the Plan or this Agreement shall confer on Participant any right to continue in the employ of, or other relationship with, the Company or any Parent or Subsidiary of the Company, or limit in any way the right of the Company or any Parent or Subsidiary of the Company to terminate Participant’s employment or other relationship at any time, with or without Cause.

4. MANNER OF EXERCISE.

4.1 Stock Option Exercise Agreement. To exercise this Option, Participant (or in the case of exercise after Participant’s death or incapacity, Participant’s executor, administrator, heir or legatee, as the case may be) must deliver to the Company an executed stock option exercise agreement in the form attached hereto as Exhibit C, or in such other form as may be approved by the Committee from time to time (the “Exercise Agreement”), which shall set forth, inter alia, (i) Participant’s election to exercise the Option, (ii) the number of Shares being purchased, (iii) any restrictions imposed on the Shares and (iv) any representations, warranties and agreements regarding Participant’s investment intent and access to information as may be required by the Company to comply with applicable securities laws. If someone other than Participant exercises the Option, then such person must submit documentation reasonably acceptable to the Company verifying that such person has the legal right to exercise the Option and such person shall be subject to all of the restrictions contained herein as if such person were the Participant.

4.2 Limitations on Exercise. The Option may not be exercised unless such exercise is in compliance with all applicable U.S. Federal and state securities laws and any applicable foreign securities and exchange control laws, in each case as they are in effect on the date of exercise as determined by the Company.

4.3 Payment. The Exercise Agreement shall be accompanied by full payment of the Exercise Price for the Shares being purchased in cash (or cash equivalent acceptable to the Company), or where permitted by law:

(a) by surrender of shares of the Company’s Common Stock that (i) either (A) have been owned by the Participant for more than six (6) months and have been paid for within the meaning of SEC Rule 144 (and, if such shares were purchased from the Company by use of a promissory note, such note has been fully paid with respect to such shares); or (B) were obtained by Participant in the open public market; and (ii) are clear of all liens, claims, encumbrances or security interests, provided, however, that if Participant resides outside the United States, the use of this method of payment shall be subject to the approval of the Committee;

(b) provided that a public market for the Company’s stock exists: (i) through a “same day sale” commitment from Participant and a broker-dealer that is a member of the National Association of Securities Dealers (an “NASD Dealer”) whereby Participant irrevocably elects to exercise the Option and to sell a portion of the Shares so purchased sufficient to pay for the total Exercise Price and whereby the NASD Dealer irrevocably commits upon receipt of such Shares to forward the total Exercise Price directly to the Company, or (ii) through a “margin” commitment from Participant and an NASD Dealer whereby Participant irrevocably elects to exercise the Option and to pledge the Shares so purchased to the NASD Dealer in a margin account as security for a loan from the NASD Dealer in the amount of the total Exercise Price, and whereby the NASD Dealer irrevocably commits upon receipt of such Shares to forward the total Exercise Price directly to the Company; or

(c) any other form of consideration approved by the Committee; or

(d) by any combination of the foregoing.

4.4 Tax Withholding.

(a) Participant acknowledges that, regardless of any action taken by the Company or, if different, Participant’s employer (the “Employer”), the ultimate liability for all income tax, social insurance, payroll tax, fringe benefits tax, payment on account or other tax related items related to Participant’s participation in the Plan and legally applicable to Participant (“Tax-Related Items”) is and remains Participant’s responsibility and may exceed the amount actually withheld by the Company or the Employer. Participant further acknowledges that the Company and/or the Employer (i) make no representations or undertakings regarding the treatment of any Tax-Related Items in connection with any aspect of the Option, including, but not limited to, the grant, vesting or exercise of the Option, the acquisition of Shares pursuant to such exercise, the subsequent sale of Shares acquired pursuant to such exercise and the receipt of any dividends; and (ii) do not commit to and are under no obligation to structure the terms of the grant or any aspect of the Option to reduce or eliminate Participant’s liability for Tax-Related Items or achieve any particular tax result. Further, if Participant is subject to Tax-Related Items in more than one jurisdiction between the Date of Grant and the date of any relevant taxable or tax withholding event, as applicable, Participant acknowledges that the Company and/or the Employer (or former employer, as applicable) may be required to withhold or account for Tax-Related Items in more than one jurisdiction.

(b) Prior to the relevant taxable or tax withholding event, as applicable, Participant agrees to make adequate arrangements satisfactory to the Company and/or the Employer to satisfy all Tax-Related Items. In this regard, Participant authorizes the Company and/or the Employer, or their respective agents, at their discretion, to satisfy the obligations with regard to all Tax-Related Items by one or a combination of the following:

(i) withholding from Participant’s wages or other cash compensation paid to Participant by the Company and/or the Employer; and/or

(ii) withholding from proceeds of the sale of Shares acquired at exercise of this Option either through a voluntary sale or through a mandatory sale arranged by the Company (on Participant’s behalf pursuant to this authorization without further consent).

Alternatively, if the Committee permits, Participant may satisfy the obligations with regard to Tax-Related Items by requesting that the Company retain the minimum number of Shares with a Fair Market Value equal to the minimum amount of Tax-Related Items required to be withheld; but in no

event will the Company withhold Shares if such withholding would result in adverse accounting consequences to the Company. The Committee is under no obligation to permit Participant to satisfy the obligations with regard to Tax-Related Items by this method, even if the Committee permits such for other participants in the Plan. In the event the Committee permits this withholding method to be used to satisfy the obligations with regard to Tax-Related Items, the Company shall issue the net number of Shares to Participant by deducting the Shares retained from the Shares issuable upon exercise and, for tax purposes, Participant will be deemed to have been issued the full number of Shares subject to the exercised portion of the Option, notwithstanding that a number of Shares are retained by the Company for the purpose of paying the Tax-Related Items.

Depending on the withholding method, the Company may withhold or account for Tax-Related Items by considering applicable minimum statutory withholding amounts or other applicable withholding rates, including maximum applicable rates, in which case Participant will receive a refund of any over-withheld amount in cash and will have no entitlement to the Common Stock equivalent.

(c) Participant agrees to pay to the Company or the Employer any amount of Tax-Related Items that the Company or the Employer may be required to withhold or account for as a result of Participant’s participation in the Plan that cannot be satisfied by the means previously described. The Company may refuse to issue or deliver the Shares or the proceeds of the sale of Shares, if Participant fails to comply with his or her obligations in connection with the Tax-Related Items.

(d) Set forth in Exhibit B is a brief summary, as of the Effective Date of the Plan, of some of the U.S. Federal and California tax consequences of exercise of the Option and disposition of the Shares.

4.5 Issuance of Shares. Provided that the Exercise Agreement and payment are in form and substance satisfactory to counsel for the Company and any obligations with respect to Tax-Related Items have been satisfied or otherwise arranged with the Company, the Company shall issue the Shares registered in the name of Participant, Participant’s authorized assignee, or Participant’s legal representative, and shall deliver certificates representing the Shares with the appropriate legends affixed thereto.

5. NOTICE OF DISQUALIFYING DISPOSITION OF ISO SHARES. If the Option is an ISO, and if Participant sells or otherwise disposes of any of the Shares acquired pursuant to the ISO on or before the later of (i) the date two (2) years after the Date of Grant, and (ii) the date one (1) year after transfer of such Shares to Participant upon exercise of the Option, Participant shall immediately notify the Company in writing of such disposition.

6. COMPLIANCE WITH LAWS AND REGULATIONS. The Plan and this Agreement are intended to comply with Section 25102(o) of the California Corporations Code and any regulations relating thereto. Any provision of this Agreement that is inconsistent with Section 25102(o) or any regulations relating thereto shall, without further act or amendment by the Company or the Board, be reformed to comply with the requirements of Section 25102(o) and any regulations relating thereto. The exercise of the Option and the issuance and transfer of Shares shall be subject to compliance by the Company and Participant with all applicable requirements of U.S. Federal and state securities laws, all applicable foreign laws, and with all applicable requirements of any stock exchange on which the Company’s Common Stock may be listed at the time of such issuance or transfer. Participant understands that the Company is under no obligation to register or qualify the Shares with the SEC, any state securities commission, any foreign governmental agency or any stock exchange to effect such compliance.

7. NATURE OF GRANT. In accepting the Option, Participant acknowledges, understands and agrees that:

(a) the Plan is established voluntarily by the Company, it is discretionary in nature, and may be amended, suspended or terminated by the Company at any time, to the extent permitted by the Plan;

(b) the grant of the Option is voluntary and occasional and does not create any contractual or other right to receive future grants of options, or benefits in lieu of options, even if options have been granted in the past;

(c) all decisions with respect to future option or other grants, if any, will be at the sole discretion of the Company;

(d) Participant is voluntarily participating in the Plan;

(e) the Option and any Shares acquired under the Plan are not intended to replace any pension rights or compensation;

(f) the Option and any Shares acquired under the Plan and the income and value of same, are not part of normal or expected compensation for purposes of calculating any severance, resignation, termination, redundancy, dismissal, end-of-service payments, bonuses, long-service awards, pension or retirement or welfare benefits or similar payments;

(g) the future value of the Shares underlying the Option is unknown, indeterminable, and cannot be predicted with certainty;

(h) if the underlying Shares do not increase in value, the Option will have no value;

(i) if Participant exercises the Option and acquires Shares, the value of such Shares may increase or decrease in value, even below the Exercise Price;

(j) no claim or entitlement to compensation or damages shall arise from forfeiture of the Option resulting from the termination of Participant’s employment or other service relationship (for any reason whatsoever, whether or not later found to be invalid or in breach of employment laws in the jurisdiction where Participant is employed or the terms of Participant’s employment agreement, if any) and, in consideration of the grant of the Option to which Participant is otherwise not entitled, Participant irrevocably agrees never to institute any claim against the Company, any of its Subsidiaries or the Employer, waives his or her ability, if any, to bring any such claim, and releases the Company, its Subsidiaries and the Employer from any such claim; if, notwithstanding the foregoing, any such claim is allowed by a court of competent jurisdiction, then, by participating in the Plan, Participant shall be deemed irrevocably to have agreed not to pursue such claim and agree to execute any and all documents necessary to request dismissal or withdrawal of such claim;

(k) for purposes of the Option, Participant’s employment or service relationship will be considered terminated as of the date Participant is no longer actively providing services to the Company or a Subsidiary (regardless of the reason for such termination and whether or not later found to be invalid or in breach of employment laws in the jurisdiction where Participant is employed or the terms of Participant’s employment agreement, if any), and unless otherwise expressly provided in this Agreement or determined by the Company, (i) Participant’s right to vest in the Option under the Plan, if any, will terminate as of such date and will not be extended by any notice period (e.g., Participant’s period

of service would not include any contractual notice period or any period of “garden leave” or similar period mandated under employment laws in the jurisdiction where Participant is employed or the terms of Participant’s employment agreement, if any); and (ii) the period (if any) during which Participant may exercise the Option after such termination of Participant’s employment or service relationship will commence on the date Participant ceases to actively provide services and will not be extended by any notice period mandated under employment laws in the jurisdiction where Participant is employed or terms of Participant’s employment agreement, if any;

(l) unless otherwise provided in the Plan or by the Company in its discretion, the Option and the benefits evidenced by this Agreement do not create any entitlement to have the Option or any such benefits transferred to, or assumed by, another company nor to be exchanged, cashed out or substituted for, in connection with any corporate transaction affecting the shares of the Company; and

(m) the following provisions apply only if Participant is providing services outside the United States:

(i) the Option and the Shares subject to the Option are not part of normal or expected compensation or salary for any purpose; and

(ii) neither the Company, the Employer nor any Subsidiary shall be liable for any foreign exchange rate fluctuation between Participant’s local currency and the United States Dollar that may affect the value of the Option or of any amounts due to Participant pursuant to the exercise of the Option or the subsequent sale of any Shares acquired upon exercise.

8. NO ADVICE REGARDING GRANT. The Company is not providing any tax, legal or financial advice, nor is the Company making any recommendations regarding Participant’s participation in the Plan, or Participant’s acquisition or sale of the underlying Shares. Participant is hereby advised to consult with his or her own personal tax, legal and financial advisors regarding his or her participation in the Plan before taking any action related to the Plan.

9. LANGUAGE. If Participant has received this Agreement, or any other document related to the Option and/or the Plan translated into a language other than English and if the meaning of the translated version is different than the English version, the English version will control.

10. NONTRANSFERABILITY OF OPTION. The Option may not be transferred in any manner other than by will or by the laws of descent and distribution, and, with respect to NQSOs, by instrument to an inter vivos or testamentary trust in which the options are to be passed to beneficiaries upon the death of the trustor (settlor), or by gift to “immediate family” as that term is defined in 17 C.F.R. 240.16a-1(e), and may be exercised during the lifetime of Participant only by Participant or in the event of Participant’s incapacity, by Participant’s legal representative. The terms of the Option shall be binding upon the executors, administrators, successors and assigns of Participant.

11. COMPANY’S RIGHT OF FIRST REFUSAL. Before any Vested Shares held by Participant or any transferee of such Vested Shares may be sold or otherwise transferred (including without limitation a transfer by gift or operation of law), the Company and/or its assignee(s) shall have an assignable right of first refusal to purchase the Vested Shares to be sold or transferred on the terms and conditions set forth in the Exercise Agreement (the “Right of First Refusal”). The Company’s Right of First Refusal will terminate when the Company’s securities become publicly traded.

12. PRIVILEGES OF STOCK OWNERSHIP. Participant shall not have any of the rights of a shareholder with respect to any Shares until the Shares are issued to Participant.

13. EXHIBIT A. The Option shall be subject to any special terms and conditions set forth in Exhibit A to this Agreement for Participant’s country. Moreover, if Participant relocates to one of the countries included in Exhibit A, the special terms and conditions for such country will apply to Participant, to the extent the Company determines that the application of such terms and conditions is necessary or advisable for legal or administrative reasons. Exhibit A constitutes part of this Agreement.

14. IMPOSITION OF OTHER REQUIREMENTS. The Company reserves the right to impose other requirements on Participant’s participation in the Plan, on the Option and on any Shares acquired upon exercise of the Option, to the extent the Company determines it is necessary or advisable for legal or administrative reasons, and to require Participant to sign any additional agreements or undertakings that may be necessary to accomplish the foregoing.

15. GENERAL PROVISIONS

15.1 Interpretation. Any dispute regarding the interpretation of this Agreement shall be submitted by Participant or the Company to the Committee for review. The resolution of such a dispute by the Committee shall be final and binding on the Company and Participant.

15.2 Entire Agreement. The Plan is incorporated herein by reference. This Agreement and the Plan constitute the entire agreement of the parties and supersede all prior undertakings and agreements with respect to the subject matter hereof.

16. 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. Any notice for delivery outside the United States will be sent by facsimile or by express courier. Any notice not delivered personally or by facsimile will be sent with postage and/or other charges prepaid and properly addressed to the party to be notified at the address or facsimile number set forth below the signature lines of this Agreement, 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. Notices to the Company will be marked “Attention: President.” Notices by facsimile shall be machine verified as received.

17. SUCCESSORS AND ASSIGNS. The Company may assign any of its rights under this Agreement including its rights to purchase Shares under the Right of First Refusal. This Agreement shall be binding upon and inure to the benefit of the successors and assigns of the Company. Subject to the restrictions on transfer set forth herein, this Agreement shall be binding upon Participant and Participant’s heirs, executors, administrators, legal representatives, successors and assigns.

18. GOVERNING LAW AND VENUE. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to that body of laws pertaining to conflict of laws. For purposes of any action, lawsuit or other proceedings brought to enforce

this Agreement, relating to it, or arising from it, the parties hereby submit to and consent to the sole and exclusive jurisdiction of the courts of Santa Clara County, California, or the federal courts for the United States for the Northern District of California, and no other courts, where this grant is made and/or to be performed.

19. 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. 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.

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

22. 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.

23. WAIVER. Participant acknowledges that a waiver by the Company of breach of any provision of this Agreement shall not operate or be construed as a waiver of any other provision of this Agreement, or of any subsequent breach by Participant or any other participant in the Plan.

EXHIBIT A TO

BLOOM ENERGY CORPORATION

2012 EQUITY INCENTIVE PLAN

STOCK OPTION AGREEMENT

PROVISIONS FOR NON-U.S. PARTICIPANTS

Terms and Conditions

This Exhibit A includes additional terms and conditions that govern the Option granted to Participant by Bloom Energy Corporation (the “Company”) under the Company’s 2012 Equity Incentive Plan (the “Plan”) if he or she is in one of the countries listed below. Capitalized terms not defined herein shall have the meaning ascribed to them in the Plan or the Agreement to which this Exhibit A is attached, as applicable.

Notifications

This Exhibit A may also include information regarding exchange controls and certain other issues of which Participant should be aware with respect to his or her participation in the Plan. The information is based on the securities, exchange control, and other laws in effect in the respective countries as of May 2012. Such laws are often complex and change frequently. As a result, the Company strongly recommends that Participant not rely on the information in this Exhibit A as the only source of information relating to the consequences of Participant’s participation in the Plan because the information may be out of date at the time Participant exercises the Option or sells Shares acquired under the Plan.

In addition, the information contained herein is general in nature and may not apply to Participant’s particular situation, and the Company is not in a position to assure Participant of a particular result. Accordingly, the Participant is advised to seek appropriate professional advice as to how the relevant laws in his or her country may apply to Participant’s situation.

Finally, if Participant is a citizen or resident of a country other than the one in which he or she is currently working, or is considered a resident of another country for local law purposes, or if Participant transfers employment and/or residency to another country after the Option has been granted, the terms and conditions and the notifications contained herein may not be applicable in the same manner. The Company shall, in its sole discretion, determine to what extent the terms and conditions included herein will apply to Participant in such circumstances.

GENERAL

Terms and Conditions

This provision applies to Participants in any non-U.S. jurisdiction:

Data Privacy. Participant hereby explicitly and unambiguously consents to the collection, use and transfer, in electronic or other form, of Participant’s personal data as described in this Agreement and any other Option grant materials by and among, as applicable, the Employer, the Company and its Subsidiaries for the exclusive purpose of implementing, administering and managing Participant’s participation in the Plan.

Participant understands that the Company and the Employer may hold certain personal information about Participant, including, but not limited to, Participant’s name, home address and telephone number, date of birth, social insurance number or other identification number, salary, nationality, job title, any shares of stock or directorships held in the Company, details of all options or any other entitlement to shares of stock awarded, canceled, exercised, vested, unvested or outstanding in Participant’s favor (“Data”), for the exclusive purpose of implementing, administering and managing the Plan.

Participant understands that Data may be transferred a stock plan service provider as may be selected by the Company in the future, which is assisting the Company with the implementation, administration and management of the Plan. Participant understands that the recipients of Data may be located in the United States or elsewhere, and that the recipient’s country (e.g., the United States) may have different data privacy laws and protections than Participant’s country. Participant understands that if he or she resides outside the United States, he or she may request a list with the names and addresses of any potential recipients of Data by contacting his or her local human resources representative. Participant authorizes the Company and any other possible recipients which may assist the Company (presently or in the future) with implementing, administering and managing the Plan to receive, possess, use, retain and transfer the Data, in electronic or other form, for the sole purposes of implementing, administering and managing Participant’s participation in the Plan. Participant understands that Data will be held only as long as is necessary to implement, administer and manage Participant’s participation in the Plan. Participant understands that he or she may, at any time, view Data, request additional information about the storage and processing of Data, require any necessary amendments to Data or refuse or withdraw the consents herein, in any case without cost, by contacting in writing his or her local human resources representative. Further, Participant understands that he or she is providing the consents herein on a purely voluntary basis. If Participant does not consent, or if Participant later seeks to revoke his or her consent, his or her employment status or service and career with the Employer will not be adversely affected; the only adverse consequence of refusing or withdrawing Participant’s consent is that the Company would not be able to grant Options or other equity awards to Participant or administer or maintain such awards. Therefore, Participant understands that refusing or withdrawing his or her consent may affect Participant’s ability to participate in the Plan. For more information on the consequences of Participant’s refusal to consent or withdrawal of consent, Participant understands that he or she may contact his or her local human resources representative.

BRAZIL

Notifications

Compliance with Law. By accepting the Option, Participant acknowledges his or her agreement to comply with applicable Brazilian laws and to pay any and all applicable taxes associated with the Option and any Shares acquired under the Plan.

Exchange Control Information. If Participant is resident or domiciled in Brazil, he or she will be required to submit annually a declaration of assets and rights held outside of Brazil to the Central Bank of Brazil if the aggregate value of such assets and rights is equal to or greater than US$100,000. Assets and rights that must be reported include Shares acquired under the Plan.

CHINA

Terms and Conditions

Termination Because of Death or Disability. This provision replaces Section 3.2 of the Agreement and applies only to Participants who are nationals of the People’s Republic of China (“PRC”):

If Participant is Terminated because of death or Disability of Participant (or Participant dies within three (3) months of Termination when Termination is for any reason other than Participant’s Disability or for Cause), the Option, to the extent that it is exercisable by Participant on the Termination Date, may be exercised by Participant (or Participant’s legal representative) no later than six (6) months after the Termination Date or such longer period (up to twelve (12) months) as may be permitted by the PRC State Administration of Foreign Exchange and the Company, but in any event no later than the Expiration Date.

Limitations on Exercise. This provision supplements Section 4.2 of the Agreement and applies only to Participants who are PRC nationals:

Further, this Option may not be exercised until such time as (a) the Common Stock is publicly traded on an established stock exchange or recognized market system and (b) the Company (or a Subsidiary) has received all necessary approvals from the PRC State Administration of Foreign Exchange to permit the operation of the Plan and the issuance of Shares under the Plan in China, as determined by the Company in its sole discretion.

Payment. This provision replaces Section 4.3 of the Agreement:

The Exercise Agreement shall be accompanied by full payment of the Exercise Price for the Shares being purchased. To facilitate compliance with exchange control laws in China, payment of the Exercise Price may only be paid (a) through a “same day sale” commitment from Participant and a broker-dealer that is a member of the National Association of Securities Dealers (an “NASD Dealer”) whereby Participant irrevocably elects to exercise the Option and to sell all of the Shares so purchased to pay for the total Exercise Price and whereby the NASD Dealer irrevocably commits upon receipt of such Shares to forward the total Exercise Price directly to the Company, or (b) through a “margin” commitment from Participant and an NASD Dealer whereby Participant irrevocably elects to exercise the Option and to pledge the Shares so purchased to the NASD Dealer in a margin account as security for a loan from the NASD Dealer in the amount of the total Exercise Price, and whereby the NASD Dealer irrevocably commits upon receipt of such Shares to forward the total Exercise Price directly to the Company; in each case, the remaining sale proceeds, less any brokerage fees or commissions, shall be remitted to Participant in accordance with any applicable exchange control laws and regulations. The Company reserves the right to provide Participant with additional methods of payment, to the extent permitted under the Plan, depending on the development of exchange control and other laws in the PRC and/or any applicable regulatory requirements.

Exchange Control Restrictions. This provision applies only to Participants who are PRC nationals:

Participant understands and agrees that, due to exchange control laws in China, he or she will be required to immediately repatriate to China any proceeds received in connection with the exercise of the Option and the immediate sale of Shares described above. Participant further understands that the repatriation of the proceeds may need to be effectuated through a special foreign exchange account established by the Company or a Subsidiary, and Participant hereby agrees that the proceeds from the sale of Shares acquired under the Plan may be transferred to such special account prior to being delivered to Participant. Participant also understands that the Company will deliver the proceeds to him or her as soon as

practicable after the exercise and sale of Shares, but there may be delays in distributing the funds to Participant due to exchange control requirements in China. Further, the proceeds may be paid to Participant in U.S. dollars or in local currency at the Company’s discretion and the proceeds may be paid to Participant in installments, one or some of which may be contingent upon Participant’s payment to Participant’s employer of the amount of any Tax-Related Items. If the proceeds are paid to Participant in U.S. dollars, Participant will be required to set up a U.S. dollar bank account in China so that the proceeds may be deposited into this account. If the proceeds are paid to Participant in local currency, the Company is under no obligation to secure any particular exchange conversion rate and the Company may face delays in converting the proceeds to local currency due to exchange control restrictions. Participant agrees to bear any currency fluctuation risk between the time the Shares are sold and the time the sale proceeds are distributed through any special foreign exchange account. Participant further agrees to comply with any other requirements that may be imposed by the Company in the future to facilitate compliance with exchange control requirements in China.

GERMANY

Notifications

Exchange Control Notification. Cross-border payments in excess of €12,500 must be reported to the German Federal Bank on a monthly basis. Participant will be responsible for obtaining the appropriate form from the bank and complying with the applicable reporting obligations.

INDIA

Terms and Conditions

Payment. This provision supplements Section 4.3 of the Agreement:

Please note that, due to exchange control restrictions in India, if Participant pays the Exercise Price as described in Section 4.3(b), all of the Shares being purchased must be sold, i.e., Participant may not sell only a portion of the Shares being purchased at the time of exercise. The Company reserves the right to provide Participant with this method of payment depending on the development of exchange control laws in India and/or any applicable regulatory requirements.

Notifications

Exchange Control Notification. Participant must repatriate any funds received pursuant to the Plan (e.g., proceeds from the sale of Shares, cash dividends) to India within 90 days of receipt. Participant should obtain evidence of the repatriation of funds in the form of a foreign inward remittance certificate (“FIRC”) from the bank where he or she deposits the foreign currency. Participant should maintain the FIRC as evidence of the repatriation of funds in the event the Reserve Bank of India or the Employer requests proof of repatriation.

MEXICO

Terms and Conditions

Acknowledgement of the Agreement. By accepting the Option, Participant acknowledges that he or she has received a copy of the Plan and the Agreement, including this Exhibit A, which he or she has reviewed. Participant further acknowledges that he or she accepts all the provisions of the Plan and the Agreement, including this Exhibit A. Participant also acknowledges that he or she has read and specifically and expressly approves the terms and conditions set forth in the “Nature of Grant” section found in the Agreement, which clearly provide as follows:

(1) Participant’s participation in the Plan does not constitute an acquired right;

(2) The Plan and Participant’s participation in it are offered by the Company on a wholly discretionary basis;

(3) Participant’s participation in the Plan is voluntary; and

(4) The Company and its Subsidiaries are not responsible for any decrease in the value of any Shares acquired at exercise of the Option.

Labor Law Acknowledgement and Policy Statement. By accepting the Option, Participant acknowledges that the Company, with registered offices at 1299 Orleans Drive, Sunnyvale, California 94089, United States of America, is solely responsible for the administration of the Plan. Participant further acknowledges that his or her participation in the Plan, the grant of the Option and any acquisition of Shares under the Plan do not constitute an employment relationship between Participant and the Company because Participant is participating in the Plan on a wholly commercial basis. Based on the foregoing, Participant expressly acknowledges that the Plan and the benefits that he or she may derive from participation in the Plan do not establish any rights between Participant and the Employer, do not form part of the employment conditions and/or benefits provided by the Employer, and any modification of the Plan or its termination shall not constitute a change or impairment of the terms and conditions of Participant’s employment.

Participant further understands that his or her participation in the Plan is the result of a unilateral and discretionary decision of the Company; therefore, the Company reserves the absolute right to amend and/or discontinue Participant’s participation in the Plan at any time, without any liability to Participant.

Finally, Participant hereby declares that he or she does not reserve to him or herself any action or right to bring any claim against the Company for any compensation or damages regarding any provision of the Plan or the benefits derived under the Plan, and that he or she therefore grants a full and broad release to the Company, its Subsidiaries, branches, representation offices, shareholders, officers, agents and legal representatives, with respect to any claim that may arise.

Spanish Translation

Reconocimiento del Contrato. Al aceptar la Opción, la persona a quien se otorga dicha Opción reconoce que ha recibido una copia del Plan y del Contrato, incluyendo este Anexo A, mismos que ha revisado. La persona a quien se otorga la Opción reconoce, además, que acepta todas las disposiciones del Plan y del Contrato, incluyendo este Anexo A. La persona a quien se otorga la Opción también reconoce que ha leído y aprueba de forma expresa los términos y condiciones establecidos en la sección del Contrato intitulada “Naturaleza del Otorgamiento” que claramente dispone lo siguiente:

(1) La participación de la persona a quien se otorga la Opción en el Plan no constituye un derecho adquirido;

(2) El Plan y la participación de la persona a quien se otorga la Opción en el Plan se ofrecen por la Compañía de forma totalmente discrecional;

(3) La participación de la persona a quien se otorga la Opción en el Plan es voluntaria; y

(4) La Compañía, sus Subsidiarias no son responsables por cualquier disminución en el valor de las Acciones adquiridas al momento de ejercer la Opción.

Reconocimiento de Ley Laboral y Declaración de la Política. Al aceptar la Opción, la persona a quien se otorga la Opción reconoce que la Compañía, con oficinas registradas en 1299 Orleans Drive, Sunnyvale, California 94089, Estados Unidos de América, es la única responsable de la administración del Plan. Además, la persona a quien se otorga la Opción reconoce que su participación en el Plan, la concesión de la Opción y cualquier adquisición de Acciones de conformidad con el Plan no constituyen una relación de trabajo entre la persona a quien se otorga la Opción y la Compañía ya que la persona a quien se otorga la Opción está participando en el Plan sobre una base totalmente comercial. Derivado de lo anterior, la persona a quien se otorga la Opción expresamente reconoce que el Plan y los beneficios que pueden derivarle de la participación en el Plan no establecen ningún derecho entre la persona a quien se otorga la Opción y el Patrón y que no forman parte de las condiciones de trabajo y/o prestaciones otorgadas por el Patrón, y cualquier modificación del Plan o la terminación del mismo no constituirá un cambio o deterioro de los términos y condiciones de trabajo de la persona a quien se otorga la Opción.

Además, la persona a quien se otorga la Opción entiende que su participación en el Plan es resultado de una decisión unilateral y discrecional de la Compañía, por lo tanto la Compañía se reserva el derecho absoluto de modificar el Plan y/o discontinuar la participación de la persona a quien se otorga la Opción en el Plan en cualquier momento, sin responsabilidad alguna para con la persona a quien se otorga la Opción.

Finalmente, la persona a quien se otorga la Opción declara que no se reserva acción o derecho alguno para presentar una reclamación o demanda en contra de la Compañía por cualquier compensación o daño o perjuicio en relación con cualquier disposición del Plan o los beneficios derivados del Plan y, por lo tanto, la persona a quien se otorga la Opción otorga un amplio y total finiquito a la Compañía, sus Subsidiarias, sucursales, oficinas de representación, accionistas, directores, funcionarios, agentes y representantes con respecto a cualquier reclamación o demanda que pudiera surgir.

TAIWAN

Notifications

Exchange Control Information. Participant may acquire and remit foreign currency (including proceeds from the sale of Shares) up to US$5,000,000 per year without justification. If the transaction amount is TWD500,000 or more in a single transaction, Participant must submit a Foreign Exchange Transaction Form. If the transaction amount is US$500,000 or more in a single transaction, Participant must also provide supporting documentation to the satisfaction of the remitting bank.

UNITED KINGDOM

Terms and Conditions

Tax Withholding. This provision supplements Section 4.4 of the Agreement:

To the extent the Employer is required to withhold any income tax due in connection with the Option, if payment or withholding of the income tax is not made within ninety (90) days of the event giving rise to the income tax liability or such other period specified in Section 222(1)(c) of the U.K. Income Tax (Earnings and Pensions) Act 2003 (the “Due Date”), the amount of any uncollected income tax shall constitute a loan owed by Participant to the Employer, effective as of the Due Date. Participant agrees that the loan will bear interest at the then-current official rate of Her Majesty’s Revenue & Customs (“HMRC”), it shall be immediately due and repayable, and the Company or the Employer may recover it at any time thereafter by any of the means referred to in Section 4.4 of the Agreement.

Notwithstanding the foregoing, if Participant is a director or executive officer of the Company (within the meaning of Section 13(k) of the Exchange Act), he or she shall not be eligible for such a loan from the Company and, in this case, the amount of any uncollected income tax will constitute a benefit to Participant on which additional income tax and national insurance contributions (“NICs”) will be payable and Participant is responsible for reporting and paying any such income tax and NICs directly to HMRC under the self-assessment regime.

NIC Joint Election. As a condition of participation in the Plan, Participant agrees to accept any liability for secondary Class 1 National Insurance contributions which may be payable by the Company and/or the Employer in connection with the Option and any event giving rise to Tax-Related Items (“Employer NICs”). Without prejudice to the foregoing, Participant agrees to execute a joint election with the Company and/or the Employer, the form of such joint election being formally approved by HMRC (the “NIC Joint Election”), and any other required consent or elections, upon request of the Company and/or the Employer. Participant further agrees to execute such other joint elections as may be required between Participant and any successor to the Company and/or the Employer. Participant further agrees that the Company and/or the Employer may collect any Employer NICs from Participant by any of the means set forth in Section 4.4 of the Agreement.

If, after request of the Company and/or the Employer, Participant does not enter into the NIC Joint Election and the Company has determined that the Shares subject to the Option are or may be considered “readily-convertible assets” for U.K. tax purposes, Participant will not be entitled to exercise the Option or receive any benefits in connection with the Option unless and until the Participant enters into the NIC Joint Election. In this case, no Shares will be issued under the Plan or benefits received in connection with the Option unless and until Participant enters into the NIC Joint Election, without any liability to the Company and/or the Employer.

Section 431 Joint Election. As a further condition of participation in the Plan and the acquisition of Shares or other securities pursuant to or in connection with the Option, Participant agrees to enter into a joint election within Section 431 of the U.K. Income Tax (Earnings and Pensions) Act 2003 (the “Section 431 Joint Election”) attached to this Exhibit A. The effect of the Section 431 Joint Election is that the Shares acquired at exercise of the Option will not be treated as “restricted securities” for U.K. tax purposes.

If Participant does not enter into the Section 431 Joint Election prior to or concurrent with the Participant delivering the Exercise Agreement to the Company, as described in Section 4.1 of the Agreement, Participant will not be entitled to exercise the Option unless and until Participant enters into the Section

431 Joint Election and no Shares will be issued under the Plan, without any liability to the Company and/or the Employer. If Participant does not enter into the Section 431 Joint Election prior to or concurrent with the acquisition of any other securities in connection with the Option, Participant will not be entitled to acquire such securities unless and until Participant enters into the Section 431 Joint Election, without any liability to the Company and/or the Employer.

BLOOM ENERGY CORPORATION

2012 EQUITY INCENTIVE PLAN

Joint Election under s431 ITEPA 2003 for full or partial disapplication of Chapter 2 Income Tax (Earnings and Pensions) Act 2003

One Part Election

1. Between

the Employee	[insert name of employee]
whose National Insurance Number is	[insert employee’s national insurance number]
and
the U.K. Company	[insert name of U.K. employer]
(who is the Employee’s employer)
of U.K. Company Registration Number	[insert Company number of U.K. employer]

2. Purpose of Election

This joint election is made pursuant to section 431(1) Income Tax (Earnings and Pensions) Act 2003 (ITEPA) and applies where employment-related securities, which are restricted securities by reason of section 423 ITEPA, are acquired.

The effect of an election under section 431(1) is that, for the relevant income tax and national insurance contribution (“NIC”) purposes, the employment-related securities and their market value will be treated as if they were not restricted securities and that sections 425 to 430 ITEPA do not apply.

Should the value of the securities fall following the acquisition, it is possible that income tax/NIC that would have arisen because of any future chargeable event (in the absence of an election) would have been less than the income tax/NIC due by reason of this election. Should this be the case, there is no income tax/NIC relief available under Part 7 of ITEPA 2003; nor is it available if the securities acquired are subsequently transferred, forfeited or revert to the original owner.

3. Application

This joint election is made not later than 14 days after the date of acquisition of the securities by the Employee and applies to:

Number of securities	[insert number of shares subject to option]
Description of securities	shares of common stock
Name of issuer of securities	Bloom Energy Corporation.

to be acquired by the Employee after [insert date] under the terms of the Bloom Energy Corporation 2012 Equity Incentive Plan.

4. Extent of Application

This election disapplies all restrictions attaching to the securities.

5. Declaration

This election will become irrevocable upon the later of its signing or the acquisition (and each subsequent acquisition) of employment-related securities to which this election applies.

In signing this joint election, we agree to be bound by its terms as stated above.

	/    /
Signature (Employee)	Date
	/    /
Signature	Date
(for and on behalf of the U.K. Company)
Position in U.K. Company

EXHIBIT B TO

BLOOM ENERGY CORPORATION

2012 EQUITY INCENTIVE PLAN

STOCK OPTION AGREEMENT

TAX CONSEQUENCES FOR U.S. TAXPAYERS

Set forth below is a brief summary, as of the Effective Date of the Plan, of some of the U.S. Federal and California tax consequences of exercise of this Option and disposition of the Shares. THIS SUMMARY IS NECESSARILY INCOMPLETE, AND THE TAX LAWS AND REGULATIONS ARE SUBJECT TO CHANGE. PARTICIPANT SHOULD CONSULT A TAX ADVISOR BEFORE EXERCISING THE OPTION OR DISPOSING OF THE SHARES.

1. Exercise of ISO. If the Option qualifies as an ISO, there will be no regular U.S. Federal or California income tax liability upon the exercise of the Option, although the excess, if any, of the Fair Market Value of the Shares on the date of exercise over the Exercise Price will be treated as a tax preference item for federal alternative minimum tax purposes and may subject the Participant to the alternative minimum tax in the year of exercise.

2. Exercise of Nonqualified Stock Option. If the Option does not qualify as an ISO, there may be a regular U.S. Federal and California income tax liability upon the exercise of the Option. Participant will be treated as having received compensation income (taxable at ordinary income tax rates) equal to the excess, if any, of the Fair Market Value of the Shares on the date of exercise over the Exercise Price. If Participant is a current or former employee of the Company, the Company may be required to withhold from Participant’s compensation or collect from Participant and pay to the applicable taxing authorities an amount equal to a percentage of this compensation income at the time of exercise.

3. Disposition of Shares. The following tax consequences may apply upon disposition of the Shares.

(a) Incentive Stock Options. If the Shares are held for more than twelve (12) months after the date of purchase of the Shares pursuant to the exercise of an ISO and are disposed of more than two (2) years after the Date of Grant, any gain realized on disposition of the Shares will be treated as long term capital gain for U.S. Federal and California income tax purposes. If Vested Shares purchased under an ISO are disposed of within the applicable one (1) year or two (2) year period, any gain realized on such disposition will be treated as compensation income (taxable at ordinary income rates in the year of the disposition) to the extent of the excess, if any, of the Fair Market Value of the Shares on the date of exercise over the Exercise Price.

(b) Nonqualified Stock Options. If the Shares are held for more than twelve (12) months after the date of purchase of the Shares pursuant to the exercise of an NQSO, any gain realized on disposition of the Shares will be treated as long term capital gain.

(c) Withholding. The Company may be required to withhold from the Participant’s compensation or collect from the Participant and pay to the applicable taxing authorities an amount equal to a percentage of this compensation income.

THE ABOVE SUMMARY DOES NOT ADDRESS THE TAX CONSEQUENCES OF THE OPTION IF THE PARTICIPANT IS SUBJECT TO TAX IN A DIFFERENT STATE OR IN A DIFFERENT COUNTRY OR COUNTRIES OUTSIDE OF THE UNITED STATES, AND ANY SUCH PARTICIPANT SHOULD CONSULT HIS OR HER PERSONAL TAX ADVISOR BEFORE ACCEPTING THE OPTION OR OTHERWISE PARTICIPATING IN THE PLAN.

EXHIBIT C TO

BLOOM ENERGY CORPORATION

2012 EQUITY INCENTIVE PLAN

STOCK OPTION AGREEMENT

STOCK OPTION EXERCISE AGREEMENT

This Stock Option Exercise Agreement (the “Exercise Agreement”) is made and entered into as of             ,          (the “Effective Date”) by and between Bloom Energy Corporation, a Delaware corporation (the “Company”), and the purchaser named below (the “Purchaser”). Capitalized terms not defined herein shall have the meanings ascribed to them in the Company’s 2012 Equity Incentive Plan (the “Plan”).

Purchaser:
Social Security Number
or Global Employee ID #
for Non-U.S. Purchaser:
Total Number of Shares:
Exercise Price Per Share:
Date of Grant:
Vesting Commencement Date:
Expiration Date:
	(Unless earlier terminated under Section 4.6 of the Plan)
Type of Stock Option
(Check one):	[    ] Incentive Stock Option [    ] Nonqualified Stock Option

1. Exercise of Option.

1.1 Exercise. Pursuant to exercise of that certain option (the “Option”) granted to Purchaser under the Plan and evidenced by a Stock Option Agreement (the “Stock Option Agreement”) and subject to the terms and conditions of this Exercise Agreement, Purchaser hereby purchases from the Company, and the Company hereby sells to Purchaser, the Total Number of Shares set forth above (the “Shares”) of the Company’s Common Stock, (the “Common Stock”), at the Exercise Price Per Share set forth above (the “Exercise Price”). As used in this Exercise Agreement, the term “Shares” refers to the Shares purchased under this Exercise Agreement and includes all securities received (i) in replacement of the Shares, (ii) as a result of stock dividends or stock splits with respect to the Shares, and (iii) all securities received in replacement of the Shares in a merger, recapitalization, reorganization or similar corporate transaction.

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1.2 Payment. Purchaser hereby delivers payment of the Exercise Price in the manner permitted in the Stock Option Agreement as follows (check and complete as appropriate):

¨ in cash (or cash equivalent acceptable to the Company) in the amount of $            , receipt of which is acknowledged by the Company;

¨ by delivery of              fully-paid, nonassessable and vested shares of the Common Stock of the Company owned by Purchaser for which the Company has received “full payment of the purchase price” within the meaning of SEC Rule 144, (if purchased by use of a promissory note, such note has been fully paid with respect to such vested shares), or obtained by Purchaser in the open public market, and owned free and clear of all liens, claims, encumbrances or security interests, valued at the current Fair Market Value of $             per share;

¨ provided that a public market for the Company’s stock exists: (i) through a “same day sale” commitment from Participant and a broker-dealer that is a member of the National Association of Securities Dealers (an “NASD Dealer”) whereby Participant irrevocably elects to exercise the Option and to sell a portion of the Shares so purchased sufficient to pay for the total Exercise Price and whereby the NASD Dealer irrevocably commits upon receipt of such Shares to forward the total Exercise Price directly to the Company, or (ii) through a “margin” commitment from Participant and an NASD Dealer whereby Participant irrevocably elects to exercise the Option and to pledge the Shares so purchased to the NASD Dealer in a margin account as security for a loan from the NASD Dealer in the amount of the total Exercise Price, and whereby the NASD Dealer irrevocably commits upon receipt of such Shares to forward the total Exercise Price directly to the Company.

2. Delivery.

2.1 Deliveries by Purchaser. Purchaser hereby delivers to the Company (i) this Exercise Agreement, (ii) two (2) copies of a blank Stock Power and Assignment Separate from Stock Certificate in the form of Exhibit 1 attached hereto (the “Stock Powers”), both executed by Purchaser (and Purchaser’s spouse, if any), (iii) if Purchaser is married, a Consent of Spouse in the form of Exhibit 2 attached hereto (the “Spouse Consent”) executed by Purchaser’s spouse, and (iv) the Exercise Price and payment or other provision for any applicable tax obligations in the form of a “check” a copy of which is attached hereto as Exhibit 3.

2.2 Deliveries by the Company. Upon its receipt of the Exercise Price, payment or other provision for any applicable tax obligations and all the documents to be executed and delivered by Purchaser to the Company under Section 2.1, the Company will issue a duly executed stock certificate evidencing the Shares in the name of Purchaser to be placed in escrow as provided in Section 10 to secure payment of Purchaser’s obligation to the Company until expiration or termination of the Company’s Right of First Refusal described in Sections 8, 9 and 10.

3. Representations and Warranties of Purchaser. Purchaser represents and warrants to the Company as follows.

3.1 Agrees to Terms of the Plan. Purchaser has received a copy of the Plan and the Stock Option Agreement, has read and understands the terms of the Plan, the Stock Option Agreement and this Exercise Agreement, and agrees to be bound by their terms and conditions. Purchaser acknowledges that there may be adverse tax consequences upon exercise of the Option or disposition of the Shares, and that Purchaser should consult a tax adviser prior to such exercise or disposition.

3.2 Purchase for Own Account for Investment. Purchaser is purchasing the Shares for Purchaser’s own account for investment purposes only and not with a view to, or for sale in connection with, a distribution of the Shares within the meaning of the Securities Act. Purchaser has no present intention of selling or otherwise disposing of all or any portion of the Shares and no one other than Purchaser has any beneficial ownership of any of the Shares.

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3.3 Access to Information. Purchaser has had access to all information regarding the Company and its present and prospective business, assets, liabilities and financial condition that Purchaser reasonably considers important in making the decision to purchase the Shares, and Purchaser has had ample opportunity to ask questions of the Company’s representatives concerning such matters and this investment.

3.4 Understanding of Risks. Purchaser is fully aware of: (i) the highly speculative nature of the investment in the Shares; (ii) the financial hazards involved; (iii) the lack of liquidity of the Shares and the restrictions on transferability of the Shares (e.g., that Purchaser may not be able to sell or dispose of the Shares or use them as collateral for loans); (iv) the qualifications and backgrounds of the management of the Company; and (v) the tax consequences of investment in the Shares. Purchaser is capable of evaluating the merits and risks of this investment, has the ability to protect Purchaser’s own interests in this transaction and is financially capable of bearing a total loss of this investment.

3.5 No General Solicitation. At no time was Purchaser presented with or solicited by any publicly issued or circulated newspaper, mail, radio, television or other form of general advertising or solicitation in connection with the offer, sale and purchase of the Shares.

4. Compliance with Securities Laws.

4.1 Compliance with U.S. Federal Securities Laws. Purchaser understands and acknowledges that the Shares have not been registered with the SEC under the Securities Act and that, notwithstanding any other provision of the Stock Option Agreement to the contrary, the exercise of any rights to purchase any Shares is expressly conditioned upon compliance with the Securities Act and all applicable state securities laws. Purchaser agrees to cooperate with the Company to ensure compliance with such laws.

4.2 Compliance with California Securities Laws. THE PLAN, THE STOCK OPTION AGREEMENT, AND THIS EXERCISE AGREEMENT ARE INTENDED TO COMPLY WITH SECTION 25102(o) OF THE CALIFORNIA CORPORATIONS CODE AND ANY RULES (INCLUDING COMMISSIONER RULES, IF APPLICABLE) OR REGULATIONS PROMULGATED THEREUNDER BY THE CALIFORNIA DEPARTMENT OF CORPORATIONS (THE “REGULATIONS”). ANY PROVISION OF THIS EXERCISE AGREEMENT THAT IS INCONSISTENT WITH SECTION 25102(o) SHALL, WITHOUT FURTHER ACT OR AMENDMENT BY THE COMPANY OR THE BOARD, BE REFORMED TO COMPLY WITH THE REQUIREMENTS OF SECTION 25102(o). THE SALE OF THE SECURITIES THAT ARE THE SUBJECT OF THIS EXERCISE AGREEMENT, IF NOT YET QUALIFIED WITH THE CALIFORNIA COMMISSIONER OF CORPORATIONS AND NOT EXEMPT FROM SUCH QUALIFICATION, IS SUBJECT TO SUCH QUALIFICATION, AND THE ISSUANCE OF SUCH SECURITIES, AND THE RECEIPT OF ANY PART OF THE CONSIDERATION THEREFOR PRIOR TO SUCH QUALIFICATION IS UNLAWFUL UNLESS THE SALE IS EXEMPT. THE RIGHTS OF THE PARTIES TO THIS EXERCISE AGREEMENT ARE EXPRESSLY CONDITIONED UPON SUCH QUALIFICATION BEING OBTAINED OR AN EXEMPTION BEING AVAILABLE.

5. Restricted Securities.

5.1 No Transfer Unless Registered or Exempt. Purchaser understands that Purchaser may not transfer any Shares unless such Shares are registered under the Securities Act or qualified under applicable state securities laws or unless, in the opinion of counsel to the Company, exemptions from such registration and qualification requirements are available. Purchaser understands that only the

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Company may file a registration statement with the SEC and that the Company is under no obligation to do so with respect to the Shares. Purchaser has also been advised that exemptions from registration and qualification may not be available or may not permit Purchaser to transfer all or any of the Shares in the amounts or at the times proposed by Purchaser.

5.2 SEC Rule 144. In addition, Purchaser has been advised that SEC Rule 144 promulgated under the Securities Act, which permits certain limited sales of unregistered securities, is not presently available with respect to the Shares and, in any event, requires that the Shares be held for a minimum of six (6) months, and in certain cases one (1) year, after they have been purchased and paid for (within the meaning of Rule 144). Purchaser understands that Rule 144 may indefinitely restrict transfer of the Shares so long as Purchaser remains an “affiliate” of the Company or if “current public information” about the Company (as defined in Rule 144) is not publicly available.

6. Restrictions on Transfers.

6.1 Disposition of Shares. Purchaser hereby agrees that Purchaser shall make no disposition of the Shares (other than as permitted by this Exercise Agreement) unless and until:

(a) Purchaser shall have notified the Company of the proposed disposition and provided a written summary of the terms and conditions of the proposed disposition;

(b) Purchaser shall have complied with all requirements of this Exercise Agreement applicable to the disposition of the Shares;

(c) Purchaser shall have provided the Company with written assurances, in form and substance satisfactory to counsel for the Company, that (i) the proposed disposition does not require registration of the Shares under the Securities Act or (ii) all appropriate actions necessary for compliance with the registration requirements of the Securities Act or of any exemption from registration available under the Securities Act (including Rule 144) have been taken; and

(d) Purchaser shall have provided the Company with written assurances, in form and substance satisfactory to the Company, that the proposed disposition will not result in the contravention of any transfer restrictions applicable to the Shares pursuant to the provisions of the Regulations referred to in Section 4.2 hereof.

6.2 Restriction on Transfer. Purchaser shall not transfer, assign, grant a lien or security interest in, pledge, hypothecate, encumber or otherwise dispose of any of the Shares which are subject to the Company’s Right of First Refusal described below, except as permitted by this Exercise Agreement.

6.3 Transferee Obligations. Each person (other than the Company) to whom the Shares are transferred by means of one of the permitted transfers specified in this Exercise Agreement must, as a condition precedent to the validity of such transfer, acknowledge in writing to the Company that such person is bound by the provisions of this Exercise Agreement and that the transferred Shares are subject to (i) the Company’s Right of First Refusal granted hereunder and (ii) the market stand-off provisions of Section 7 hereof, to the same extent such Shares would be so subject if retained by the Purchaser.

7. Market Standoff Agreement. Purchaser agrees in connection with any registration of the Company’s securities under the Securities Act or other public offering that, upon the request of the Company or the underwriters managing any registered public offering of the Company’s securities, Purchaser will not sell or otherwise dispose of any Shares without the prior written consent of the

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Company or such managing underwriters, as the case may be, for a period of time (not to exceed one hundred eighty (180) days) after the effective date of such registration requested by such managing underwriters and subject to all restrictions as the Company or the managing underwriters may specify for employee-stockholders generally. For purposes of this Section 7, the term “Company” shall include any wholly-owned subsidiary of the Company into which the Company merges or consolidates. 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 Shares until the end of such period. Transferee further agrees to enter into any agreement reasonably required by the underwriters to implement the foregoing.

8. Company’s Right of First Refusal. Before any Vested Shares held by Purchaser or any transferee of such Vested Shares (either sometimes referred to herein as the “Holder”) may be sold or otherwise transferred (including, without limitation, a transfer by gift or operation of law), the Company and/or its assignee(s) will have a right of first refusal to purchase the Vested Shares to be sold or transferred (the “Offered Shares”) on the terms and conditions set forth in this Section (the “Right of First Refusal”).

8.1 Notice of Proposed Transfer. The Holder of the Offered Shares will deliver to the Company a written notice (the “Notice”) stating: (i) the Holder’s bona fide intention to sell or otherwise transfer the Offered Shares; (ii) the name and address of each proposed purchaser or other transferee (the “Proposed Transferee”); (iii) the number of Offered Shares to be transferred to each Proposed Transferee; (iv) the bona fide cash price or other consideration for which the Holder proposes to transfer the Offered Shares (the “Offered Price”); and (v) that the Holder acknowledges this Notice is an offer to sell the Offered Shares to the Company and/or its assignee(s) pursuant to the Company’s Right of First Refusal at the Offered Price as provided for in this Exercise Agreement.

8.2 Exercise of Right of First Refusal. At any time within thirty (30) days after the date of the Notice, the Company and/or its assignee(s) may, by giving written notice to the Holder, elect to purchase all (or, with the consent of the Holder, less than all) the Offered Shares proposed to be transferred to any one or more of the Proposed Transferees named in the Notice, at the purchase price, determined as specified below.

8.3 Purchase Price. The purchase price for the Offered Shares purchased under this Section will be the Offered Price, provided that if the Offered Price consists of no legal consideration (as, for example, in the case of a transfer by gift) the purchase price will be the fair market value of the Offered Shares as determined in good faith by the Company’s Board of Directors. If the Offered Price includes consideration other than cash, then the value of the non-cash consideration, as determined in good faith by the Company’s Board of Directors, will conclusively be deemed to be the cash equivalent value of such non-cash consideration.

8.4 Payment. Payment of the purchase price for the Offered Shares will be payable, at the option of the Company and/or its assignee(s) (as applicable), by check or by cancellation of all or a portion of any outstanding purchase money indebtedness owed by the Holder to the Company (or to such assignee, in the case of a purchase of Offered Shares by such assignee) or by any combination thereof. The purchase price will be paid without interest within sixty (60) days after the Company’s receipt of the Notice, or, at the option of the Company and/or its assignee(s), in the manner and at the time(s) set forth in the Notice.

8.5 Holder’s Right to Transfer. If all of the Offered Shares proposed in the Notice to be transferred to a given Proposed Transferee are not purchased by the Company and/or its assignee(s) as provided in this Section, then the Holder may sell or otherwise transfer such Offered Shares to each Proposed Transferee at the Offered Price or at a higher price, provided that (i) such sale or other transfer

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is consummated within ninety (90) days after the date of the Notice, (ii) any such sale or other transfer is effected in compliance with all applicable securities laws, and (iii) each Proposed Transferee agrees in writing that the provisions of this Section will continue to apply to the Offered Shares in the hands of such Proposed Transferee. If the Offered Shares described in the Notice are not transferred to each Proposed Transferee within such ninety (90) day period, then a new Notice must be given to the Company pursuant to which the Company will again be offered the Right of First Refusal before any Shares held by the Holder may be sold or otherwise transferred.

8.6 Exempt Transfers. Notwithstanding anything to the contrary in this Section, the following transfers of Vested Shares will be exempt from the Right of First Refusal: (i) the transfer of any or all of the Vested Shares during Purchaser’s lifetime by gift or on Purchaser’s death by will or intestacy to Purchaser’s “Immediate Family” (as defined below) or to a trust for the benefit of Purchaser or Purchaser’s Immediate Family, provided that each transferee or other recipient agrees in a writing satisfactory to the Company that the provisions of this Section will continue to apply to the transferred Vested Shares in the hands of such transferee or other recipient; (ii) any transfer of Vested Shares made pursuant to a statutory merger or statutory consolidation of the Company with or into another corporation or corporations (except that the Right of First Refusal will continue to apply thereafter to such Vested Shares, in which case the surviving corporation of such merger or consolidation shall succeed to the rights of the Company under this Section unless the agreement of merger or consolidation expressly otherwise provides); or (iii) any transfer of Vested Shares pursuant to the winding up and dissolution of the Company. As used herein, the term “Immediate Family” will mean Purchaser’s spouse, the lineal descendant or antecedent, father, mother, brother or sister, child, adopted child, grandchild or adopted grandchild of the Purchaser or the Purchaser’s spouse, or the spouse of any of the above or Spousal Equivalent, as defined herein. As used herein, a person is deemed to be a “Spousal Equivalent” provided the following circumstances are true: (i) irrespective of whether or not the Participant and the Spousal Equivalent are the same sex, they are the sole spousal equivalent of the other for the last twelve (12) months, (ii) they intend to remain so indefinitely, (iii) neither are married to anyone else, (iv) both are at least 18 years of age and mentally competent to consent to contract, (v) they are not related by blood to a degree of closeness that which would prohibit legal marriage in the state in which they legally reside, (vi) they are jointly responsible for each other’s common welfare and financial obligations, and (vii) they reside together in the same residence for the last twelve (12) months and intend to do so indefinitely.

8.7 Termination of Right of First Refusal. The Right of First Refusal will terminate as to all Shares (i) on the effective date of the first sale of Common Stock of the Company to the general public pursuant to a registration statement filed with and declared effective by the SEC under the Securities Act (other than a registration statement relating solely to the issuance of Common Stock pursuant to a business combination or an employee incentive or benefit plan) (ii) on any transfer or conversion of Shares made pursuant to a statutory merger or statutory consolidation of the Company with or into another corporation or corporations if the common stock of the surviving corporation or any direct or indirect parent corporation thereof is registered under the Exchange Act.

8.8 Encumbrances on Vested Shares. Purchaser may grant a lien or security interest in, or pledge, hypothecate or encumber Vested Shares only if each party to whom such lien or security interest is granted, or to whom such pledge, hypothecation or other encumbrance is made, agrees in a writing satisfactory to the Company that: (i) such lien, security interest, pledge, hypothecation or encumbrance will not apply to such Vested Shares after they are acquired by the Company and/or its assignees under this Section; and (ii) the provisions of this Exercise Agreement will continue to apply to such Vested Shares in the hands of such party and any transferee of such party. Purchaser may not grant a lien or security interest in, or pledge, hypothecate or encumber, any Unvested Shares.

9. Rights as a Stockholder. Subject to the terms and conditions of this Exercise Agreement, Purchaser will have all of the rights of a stockholder of the Company with respect to the

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Shares from and after the date that Shares are issued to Purchaser until such time as Purchaser disposes of the Shares or the Company and/or its assignee(s) exercise(s) the Right of First Refusal. Upon an exercise of the Right of First Refusal, Purchaser will have no further rights as a holder of the Shares so purchased upon such exercise, other than the right to receive payment for the Shares so purchased in accordance with the provisions of this Exercise Agreement, and Purchaser will promptly surrender the stock certificate(s) evidencing the Shares so purchased to the Company for transfer or cancellation.

10. Escrow. As security for Purchaser’s faithful performance of this Exercise Agreement, Purchaser agrees, immediately upon the issuance of the stock certificate(s) evidencing the Shares, that the Company shall deliver such certificate(s), together with the Stock Powers executed by Purchaser and by Purchaser’s spouse, if any (with the transferee, certificate number, date and number of Shares left blank), to the Secretary of the Company or other designee of the Company (the “Escrow Holder”), who is hereby appointed to hold such certificate(s) and Stock Powers in escrow and to take all such actions and to effectuate all such transfers and/or releases of such Shares as are in accordance with the terms of this Exercise Agreement. Purchaser and the Company agree that Escrow Holder will not be liable to any party to this Exercise Agreement (or to any other party) for any actions or omissions unless Escrow Holder is grossly negligent or intentionally fraudulent in carrying out the duties of Escrow Holder under this Exercise Agreement. Escrow Holder may rely upon any letter, notice or other document executed with any signature purported to be genuine and may rely on the advice of counsel and obey any order of any court with respect to the transactions contemplated by this Exercise Agreement. The Shares will be released from escrow upon termination of the Right of First Refusal.

11. Restrictive Legends and Stop-Transfer Orders.

11.1 Legends. Purchaser understands and agrees that the Company will place the legends set forth below or similar legends on any stock certificate(s) evidencing the Shares, together with any other legends that may be required by state or U.S. Federal securities laws, the Company’s Certificate of Incorporation or Bylaws, any other agreement between Purchaser and the Company or any agreement between Purchaser and any third party:

THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR UNDER THE SECURITIES LAWS OF CERTAIN STATES. THESE SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS, PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM. INVESTORS SHOULD BE AWARE THAT THEY MAY BE REQUIRED TO BEAR THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE PERIOD OF TIME. THE ISSUER OF THESE SECURITIES MAY REQUIRE AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER TO THE EFFECT THAT ANY PROPOSED TRANSFER OR RESALE IS IN COMPLIANCE WITH THE SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES LAWS.

THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN RESTRICTIONS ON PUBLIC RESALE AND TRANSFER, INCLUDING THE RIGHT OF FIRST REFUSAL HELD BY THE ISSUER AND/OR ITS ASSIGNEE(S) AS SET FORTH IN A STOCK OPTION EXERCISE AGREEMENT BETWEEN THE ISSUER AND THE ORIGINAL HOLDER OF THESE SHARES, A COPY OF WHICH MAY BE OBTAINED AT THE PRINCIPAL OFFICE OF THE ISSUER. SUCH PUBLIC SALE AND TRANSFER RESTRICTIONS INCLUDING THE RIGHT OF FIRST REFUSAL ARE BINDING ON TRANSFEREES OF THESE SHARES.

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THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A 180 DAY MARKET STANDOFF RESTRICTION AS SET FORTH IN A CERTAIN AGREEMENT BETWEEN THE ISSUER AND THE ORIGINAL HOLDER OF THESE SHARES, A COPY OF WHICH MAY BE OBTAINED AT THE PRINCIPAL OFFICE OF THE ISSUER. AS A RESULT OF SUCH AGREEMENT, THESE SHARES MAY NOT BE TRADED PRIOR TO 180 DAYS AFTER THE EFFECTIVE DATE OF ANY PUBLIC OFFERING OF THE COMMON STOCK OF THE ISSUER HEREOF. SUCH RESTRICTION IS BINDING ON TRANSFEREES OF THESE SHARES.

11.2 Stop-Transfer Instructions. Purchaser agrees that, to ensure compliance with the restrictions imposed by this Exercise Agreement, the Company may issue appropriate “stop-transfer” instructions to its transfer agent, if any, and if the Company transfers its own securities, it may make appropriate notations to the same effect in its own records.

11.3 Refusal to Transfer. The Company will not be required (i) to transfer on its books any Shares that have been sold or otherwise transferred in violation of any of the provisions of this Exercise Agreement or (ii) to treat as owner of such Shares, or to accord the right to vote or pay dividends to any purchaser or other transferee to whom such Shares have been so transferred.

12. Tax Consequences. PURCHASER UNDERSTANDS THAT PURCHASER MAY SUFFER ADVERSE TAX CONSEQUENCES AS A RESULT OF PURCHASER’S PURCHASE OR DISPOSITION OF THE SHARES. PURCHASER REPRESENTS: (i) THAT PURCHASER HAS CONSULTED WITH ANY TAX ADVISER THAT PURCHASER DEEMS ADVISABLE IN CONNECTION WITH THE PURCHASE OR DISPOSITION OF THE SHARES AND (ii) THAT PURCHASER IS NOT RELYING ON THE COMPANY FOR ANY TAX ADVICE. Set forth below is a brief summary, as of the date the Plan was adopted by the Board, of some of the U.S. Federal and California tax consequences of exercise of the Option and disposition of the Shares. THIS SUMMARY IS NECESSARILY INCOMPLETE, AND THE TAX LAWS AND REGULATIONS ARE SUBJECT TO CHANGE. PURCHASER SHOULD CONSULT HIS OR HER OWN TAX ADVISER BEFORE EXERCISING THIS OPTION OR DISPOSING OF THE SHARES. IN ADDITION, THIS SUMMARY DOES NOT ADDRESS THE TAX CONSEQUENCES OF THE EXERCISE OF THE OPTION IF THE PURCHASER IS SUBJECT TO TAX IN A DIFFERENT STATE OR IN A DIFFERENT COUNTRY OR COUNTRIES OUTSIDE OF THE UNITED STATES, AND ANY SUCH PURCHASER SHOULD CONSULT HIS OR HER PERSONAL TAX ADVISOR BEFORE EXERCISING THE OPTION.

12.1 Exercise of Incentive Stock Option. If the Option qualifies as an ISO, there will be no regular U.S. Federal income tax liability or California income tax liability upon the exercise of the Option, although the excess, if any, of the Fair Market Value of the Shares on the date of exercise over the Exercise Price will be treated as a tax preference item for U.S. Federal alternative minimum tax purposes and may subject Purchaser to the alternative minimum tax in the year of exercise.

12.2 Exercise of Nonqualified Stock Option. If the Option does not qualify as an ISO, there may be a regular U.S. Federal income tax liability and a California income tax liability upon the exercise of the Option. Purchaser will be treated as having received compensation income (taxable at ordinary income tax rates) equal to the excess, if any, of the Fair Market Value of the Shares on the date of exercise over the Exercise Price. If Purchaser is or was an employee of the Company, the Company may be required to withhold from Purchaser’s compensation or collect from Purchaser and pay to the applicable taxing authorities an amount equal to a percentage of this compensation income at the time of exercise.

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12.3 Disposition of Shares. The following tax consequences may apply upon disposition of the Shares.

(a) Incentive Stock Options. If the Shares are held for more than twelve (12) months after the date of the transfer of the Shares pursuant to the exercise of an ISO and are disposed of more than two (2) years after the Date of Grant, any gain realized on disposition of the Shares will be treated as long term capital gain for U.S. Federal and California income tax purposes. If Shares purchased under an ISO are disposed of within the applicable one (1) year or two (2) year period, any gain realized on such disposition will be treated as compensation income (taxable at ordinary income rates) to the extent of the excess, if any, of the Fair Market Value of the Shares on the date of exercise over the Exercise Price.

(b) Nonqualified Stock Options. If the Shares are held for more than twelve (12) months after the date of the transfer of the Shares pursuant to the exercise of an NQSO, any gain realized on disposition of the Shares will be treated as long term capital gain.

(c) Withholding. The Company may be required to withhold from the Purchaser’s compensation or collect from the Purchaser and pay to the applicable taxing authorities an amount equal to a percentage of this compensation income.

13. Compliance with Laws and Regulations. The issuance and transfer of the Shares will be subject to and conditioned upon compliance by the Company and Purchaser with all applicable U.S. Federal and state laws and regulations, all applicable foreign laws and regulations and with all applicable requirements of any stock exchange or automated quotation system on which the Company’s Common Stock may be listed or quoted at the time of such issuance or transfer.

14. Successors and Assigns. The Company may assign any of its rights under this Exercise Agreement, including its rights to purchase Shares under the Right of First Refusal. No other party to this Exercise Agreement may assign, whether voluntarily or by operation of law, any of its rights and obligations under this Exercise Agreement, except with the prior written consent of the Company. This Exercise Agreement shall be binding upon and inure to the benefit of the successors and assigns of the Company. Subject to the restrictions on transfer herein set forth, this Exercise Agreement will be binding upon Purchaser and Purchaser’s heirs, executors, administrators, legal representatives, successors and assigns.

15. Governing Law and Venue. This Exercise Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to that body of laws pertaining to conflict of laws. For purposes of any action, lawsuit or other proceedings brought to enforce this Exercise Notice, relating to it, or arising from it, the parties hereby submit to and consent to the sole and exclusive jurisdiction of the courts of Santa Clara County, California, or the federal courts for the United States for the Northern District of California, and no other courts, where this grant is made and/or to be performed. If any provision of this Exercise Notice is determined by a court of law to be illegal or unenforceable, then such provision will be enforced to the maximum extent possible and the other provisions will remain fully effective and enforceable.

16. Notices. Any and all notices required or permitted to be given to a party pursuant to the provisions of this Exercise Agreement will be in writing and will be effective and deemed to provide such party sufficient notice under this Exercise 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

9

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. All notices not delivered personally or by facsimile will be sent with postage and/or other charges prepaid and properly addressed to the party to be notified at the address or facsimile number set forth below the signature lines of this Exercise Agreement, 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. Notices to the Company will be marked “Attention: [●]”. Notices by facsimile shall be machine verified as received.

17. 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 Exercise Agreement.

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

19. Entire Agreement. The Plan, the Stock Option Agreement and this Exercise Agreement, together with all Exhibits thereto, constitute the entire agreement and understanding of the parties with respect to the subject matter of this Exercise Agreement, and supersede all prior understandings and agreements, whether oral or written, between or among the parties hereto with respect to the specific subject matter hereof.

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

21. Severability. If any provision of this Exercise 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 Exercise Agreement and the remainder of this Exercise 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 Exercise Agreement. Notwithstanding the forgoing, if the value of this Exercise 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.

22. Facsimile and Electronic Signatures. This Agreement may be executed and delivered by facsimile and upon such delivery the facsimile signature will be deemed to have the same effect as if the original signature had been delivered to the other party. Additionally, this Agreement may be executed and delivered electronically whether via the Company’s intranet or the Internet site of a third party or via email or such other means of electronic delivery specified by the Company.

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IN WITNESS WHEREOF, the Company has caused this Stock Option Exercise Agreement to be executed by its duly authorized representative, and Purchaser has executed this Stock Option Exercise Agreement, as of the Effective Date indicated above.

BLOOM ENERGY CORPORATION	PURCHASER
By:
	(Signature)
(Please print name)	(Please print name)
(Please print title)
Address:	Address:
Fax No.:	Fax No.
Phone No.:	Phone No.:

List of Exhibits

Exhibit 1:	Stock Power and Assignment Separate from Stock Certificate
Exhibit 2:	Spouse Consent
Exhibit 3:	Copy of Purchaser’s Check

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EXHIBIT 1

STOCK POWER AND ASSIGNMENT

SEPARATE FROM STOCK CERTIFICATE

Stock Power and Assignment Separate from Stock Certificate

FOR VALUE RECEIVED and pursuant to that certain Stock Option Exercise Agreement No.                      dated as of             ,          (the “Agreement”), the undersigned hereby sells, assigns and transfers unto                         ,                          shares of the Common Stock of Bloom Energy Corporation, a Delaware corporation (the “Company”), standing in the undersigned’s name on the books of the Company represented by Certificate No(s).                  delivered herewith, and does hereby irrevocably constitute and appoint the Secretary of the Company as the undersigned’s attorney-in-fact, with full power of substitution, to transfer said stock on the books of the Company. THIS ASSIGNMENT MAY ONLY BE USED AS AUTHORIZED BY THE AGREEMENT AND ANY EXHIBITS THERETO.

Dated:             ,         

PURCHASER

(Signature)

(Please Print Name)

(Spouse’s Signature, if any)

(Please Print Spouse’s Name)

Instructions to Purchaser: Please do not fill in any blanks other than the signature line. The purpose of this Stock Power and Assignment is to enable the Company to acquire the shares and to exercise its “Right of First Refusal” set forth in the Agreement without requiring additional signatures on the part of the Purchaser or Purchaser’s Spouse.

EXHIBIT 2

SPOUSE CONSENT

Spouse Consent

The undersigned spouse of                      (the “Purchaser”) has read, understands, and hereby approves the Stock Option Exercise Agreement between Purchaser and the Company (the “Agreement”). In consideration of the Company’s granting my spouse the right to purchase the Shares as set forth in the Agreement, the undersigned hereby agrees to be irrevocably bound by the Agreement and further agrees that any community property interest I may have in the Shares shall similarly be bound by the Agreement. The undersigned hereby appoints Purchaser as my attorney-in-fact with respect to any amendment or exercise of any rights under the Agreement.

Date:                     

	Print Name of Purchaser’s Spouse
	Signature of Purchaser’s Spouse
Address:

EXHIBIT 3

COPY OF PURCHASER’S CHECK

EXHIBIT C TO

BLOOM ENERGY CORPORATION

2012 EQUITY INCENTIVE PLAN

STOCK OPTION AGREEMENT

STOCK OPTION EXERCISE AGREEMENT

This Stock Option Exercise Agreement (the “Exercise Agreement”) is made and entered into as of             ,         (the “Effective Date”) by and between Bloom Energy Corporation, a Delaware corporation (the “Company”), and the purchaser named below (the “Purchaser”). Capitalized terms not defined herein shall have the meanings ascribed to them in the Company’s 2012 Equity Incentive Plan (the “Plan”).

Purchaser:
Social Security Number
or Global Employee ID #
for Non-U.S. Purchaser:
Total Number of Shares:
Exercise Price Per Share:
Date of Grant:
Vesting Commencement Date:
Expiration Date:
	(Unless earlier terminated under Section 4.6 of the Plan)
Type of Stock Option
(Check one):	¨ Incentive Stock Option ¨ Nonqualified Stock Option

1. Exercise of Option.

1.1 Exercise. Pursuant to exercise of that certain option (the “Option”) granted to Purchaser under the Plan and evidenced by a Stock Option Agreement (the “Stock Option Agreement”) and subject to the terms and conditions of this Exercise Agreement, Purchaser hereby purchases from the Company, and the Company hereby sells to Purchaser, the Total Number of Shares set forth above (the “Shares”) of the Company’s Common Stock, (the “Common Stock”), at the Exercise Price Per Share set forth above (the “Exercise Price”). As used in this Exercise Agreement, the term “Shares” refers to the Shares purchased under this Exercise Agreement and includes all securities received (i) in replacement of the Shares, (ii) as a result of stock dividends or stock splits with respect to the Shares, and (iii) all securities received in replacement of the Shares in a merger, recapitalization, reorganization or similar corporate transaction.

1.2 Payment. Purchaser hereby delivers payment of the Exercise Price in the manner permitted in the Stock Option Agreement as follows (check and complete as appropriate):

¨ in cash (or cash equivalent acceptable to the Company) in the amount of $                , receipt of which is acknowledged by the Company;

¨ by delivery of                fully-paid, nonassessable and vested shares of the Common Stock of the Company owned by Purchaser for which the Company has received “full payment of the purchase price” within the meaning of SEC Rule 144, (if purchased by use of a promissory note, such note has been fully paid with respect to such vested shares), or obtained by Purchaser in the open public market, and owned free and clear of all liens, claims, encumbrances or security interests, valued at the current Fair Market Value of $                per share;

¨ provided that a public market for the Company’s stock exists: (i) through a “same day sale” commitment from Participant and a broker-dealer that is a member of the National Association of Securities Dealers (an “NASD Dealer”) whereby Participant irrevocably elects to exercise the Option and to sell a portion of the Shares so purchased sufficient to pay for the total Exercise Price and whereby the NASD Dealer irrevocably commits upon receipt of such Shares to forward the total Exercise Price directly to the Company, or (ii) through a “margin” commitment from Participant and an NASD Dealer whereby Participant irrevocably elects to exercise the Option and to pledge the Shares so purchased to the NASD Dealer in a margin account as security for a loan from the NASD Dealer in the amount of the total Exercise Price, and whereby the NASD Dealer irrevocably commits upon receipt of such Shares to forward the total Exercise Price directly to the Company.

2. Delivery.

2.1 Deliveries by Purchaser. Purchaser hereby delivers to the Company (i) this Exercise Agreement, (ii) two (2) copies of a blank Stock Power and Assignment Separate from Stock Certificate in the form of Exhibit 1 attached hereto (the “Stock Powers”), both executed by Purchaser (and Purchaser’s spouse, if any), (iii) if Purchaser is married, a Consent of Spouse in the form of Exhibit 2 attached hereto (the “Spouse Consent”) executed by Purchaser’s spouse, and (iv) the Exercise Price and payment or other provision for any applicable tax obligations in the form of a “check” a copy of which is attached hereto as Exhibit 3.

2.2 Deliveries by the Company. Upon its receipt of the Exercise Price, payment or other provision for any applicable tax obligations and all the documents to be executed and delivered by Purchaser to the Company under Section 2.1, the Company will issue a duly executed stock certificate evidencing the Shares in the name of Purchaser to be placed in escrow as provided in Section 10 to secure payment of Purchaser’s obligation to the Company until expiration or termination of the Company’s Right of First Refusal described in Sections 8, 9 and 10.

3. Representations and Warranties of Purchaser. Purchaser represents and warrants to the Company as follows.

3.1 Agrees to Terms of the Plan. Purchaser has received a copy of the Plan and the Stock Option Agreement, has read and understands the terms of the Plan, the Stock Option Agreement and this Exercise Agreement, and agrees to be bound by their terms and conditions. Purchaser acknowledges that there may be adverse tax consequences upon exercise of the Option or disposition of the Shares, and that Purchaser should consult a tax adviser prior to such exercise or disposition.

3.2 Purchase for Own Account for Investment. Purchaser is purchasing the Shares for Purchaser’s own account for investment purposes only and not with a view to, or for sale in connection with, a distribution of the Shares within the meaning of the Securities Act. Purchaser has no present intention of selling or otherwise disposing of all or any portion of the Shares and no one other than Purchaser has any beneficial ownership of any of the Shares.

3.3    Access to Information. Purchaser has had access to all information regarding the Company and its present and prospective business, assets, liabilities and financial condition that Purchaser reasonably considers important in making the decision to purchase the Shares, and Purchaser has had ample opportunity to ask questions of the Company’s representatives concerning such matters and this investment.

3.4    Understanding of Risks. Purchaser is fully aware of: (i) the highly speculative nature of the investment in the Shares; (ii) the financial hazards involved; (iii) the lack of liquidity of the Shares and the restrictions on transferability of the Shares (e.g., that Purchaser may not be able to sell or dispose of the Shares or use them as collateral for loans); (iv) the qualifications and backgrounds of the management of the Company; and (v) the tax consequences of investment in the Shares. Purchaser is capable of evaluating the merits and risks of this investment, has the ability to protect Purchaser’s own interests in this transaction and is financially capable of bearing a total loss of this investment.

3.5    No General Solicitation. At no time was Purchaser presented with or solicited by any publicly issued or circulated newspaper, mail, radio, television or other form of general advertising or solicitation in connection with the offer, sale and purchase of the Shares.

4.    Compliance with Securities Laws.

4.1    Compliance with U.S. Federal Securities Laws. Purchaser understands and acknowledges that the Shares have not been registered with the SEC under the Securities Act and that, notwithstanding any other provision of the Stock Option Agreement to the contrary, the exercise of any rights to purchase any Shares is expressly conditioned upon compliance with the Securities Act and all applicable state securities laws. Purchaser agrees to cooperate with the Company to ensure compliance with such laws.

4.2    Compliance with California Securities Laws. THE PLAN, THE STOCK OPTION AGREEMENT, AND THIS EXERCISE AGREEMENT ARE INTENDED TO COMPLY WITH SECTION 25102(o) OF THE CALIFORNIA CORPORATIONS CODE AND ANY RULES (INCLUDING COMMISSIONER RULES, IF APPLICABLE) OR REGULATIONS PROMULGATED THEREUNDER BY THE CALIFORNIA DEPARTMENT OF CORPORATIONS (THE “REGULATIONS”). ANY PROVISION OF THIS EXERCISE AGREEMENT THAT IS INCONSISTENT WITH SECTION 25102(o) SHALL, WITHOUT FURTHER ACT OR AMENDMENT BY THE COMPANY OR THE BOARD, BE REFORMED TO COMPLY WITH THE REQUIREMENTS OF SECTION 25102(o). THE SALE OF THE SECURITIES THAT ARE THE SUBJECT OF THIS EXERCISE AGREEMENT, IF NOT YET QUALIFIED WITH THE CALIFORNIA COMMISSIONER OF CORPORATIONS AND NOT EXEMPT FROM SUCH QUALIFICATION, IS SUBJECT TO SUCH QUALIFICATION, AND THE ISSUANCE OF SUCH SECURITIES, AND THE RECEIPT OF ANY PART OF THE CONSIDERATION THEREFOR PRIOR TO SUCH QUALIFICATION IS UNLAWFUL UNLESS THE SALE IS EXEMPT. THE RIGHTS OF THE PARTIES TO THIS EXERCISE AGREEMENT ARE EXPRESSLY CONDITIONED UPON SUCH QUALIFICATION BEING OBTAINED OR AN EXEMPTION BEING AVAILABLE.

5.    Restricted Securities.

5.1    No Transfer Unless Registered or Exempt. Purchaser understands that Purchaser may not transfer any Shares unless such Shares are registered under the Securities Act or qualified under applicable state securities laws or unless, in the opinion of counsel to the Company, exemptions from such registration and qualification requirements are available. Purchaser understands that only the

Company may file a registration statement with the SEC and that the Company is under no obligation to do so with respect to the Shares. Purchaser has also been advised that exemptions from registration and qualification may not be available or may not permit Purchaser to transfer all or any of the Shares in the amounts or at the times proposed by Purchaser.

5.2    SEC Rule 144. In addition, Purchaser has been advised that SEC Rule 144 promulgated under the Securities Act, which permits certain limited sales of unregistered securities, is not presently available with respect to the Shares and, in any event, requires that the Shares be held for a minimum of six (6) months, and in certain cases one (1) year, after they have been purchased and paid for (within the meaning of Rule 144). Purchaser understands that Rule 144 may indefinitely restrict transfer of the Shares so long as Purchaser remains an “affiliate” of the Company or if “current public information” about the Company (as defined in Rule 144) is not publicly available.

6.    Restrictions on Transfers.

6.1    Disposition of Shares. Purchaser hereby agrees that Purchaser shall make no disposition of the Shares (other than as permitted by this Exercise Agreement) unless and until:

(a)    Purchaser shall have notified the Company of the proposed disposition and provided a written summary of the terms and conditions of the proposed disposition;

(b)    Purchaser shall have complied with all requirements of this Exercise Agreement applicable to the disposition of the Shares;

(c)    Purchaser shall have provided the Company with written assurances, in form and substance satisfactory to counsel for the Company, that (i) the proposed disposition does not require registration of the Shares under the Securities Act or (ii) all appropriate actions necessary for compliance with the registration requirements of the Securities Act or of any exemption from registration available under the Securities Act (including Rule 144) have been taken; and

(d)    Purchaser shall have provided the Company with written assurances, in form and substance satisfactory to the Company, that the proposed disposition will not result in the contravention of any transfer restrictions applicable to the Shares pursuant to the provisions of the Regulations referred to in Section 4.2 hereof.

6.2    Restriction on Transfer. Purchaser shall not transfer, assign, grant a lien or security interest in, pledge, hypothecate, encumber or otherwise dispose of any of the Shares which are subject to the Company’s Right of First Refusal described below, except as permitted by this Exercise Agreement.

6.3    Transferee Obligations. Each person (other than the Company) to whom the Shares are transferred by means of one of the permitted transfers specified in this Exercise Agreement must, as a condition precedent to the validity of such transfer, acknowledge in writing to the Company that such person is bound by the provisions of this Exercise Agreement and that the transferred Shares are subject to (i) the Company’s Right of First Refusal granted hereunder and (ii) the market stand-off provisions of Section 7 hereof, to the same extent such Shares would be so subject if retained by the Purchaser.

7.    Market Standoff Agreement. Purchaser agrees in connection with any registration of the Company’s securities under the Securities Act or other public offering that, upon the request of the Company or the underwriters managing any registered public offering of the Company’s securities, Purchaser will not sell or otherwise dispose of any Shares without the prior written consent of the

Company or such managing underwriters, as the case may be, for a period of time (not to exceed one hundred eighty (180) days) after the effective date of such registration requested by such managing underwriters and subject to all restrictions as the Company or the managing underwriters may specify for employee-stockholders generally. For purposes of this Section 7, the term “Company” shall include any wholly-owned subsidiary of the Company into which the Company merges or consolidates. 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 Shares until the end of such period. Transferee further agrees to enter into any agreement reasonably required by the underwriters to implement the foregoing.

8. Company’s Right of First Refusal. Before any Vested Shares held by Purchaser or any transferee of such Vested Shares (either sometimes referred to herein as the “Holder”) may be sold or otherwise transferred (including, without limitation, a transfer by gift or operation of law), the Company and/or its assignee(s) will have a right of first refusal to purchase the Vested Shares to be sold or transferred (the “Offered Shares”) on the terms and conditions set forth in this Section (the “Right of First Refusal”).

8.1 Notice of Proposed Transfer. The Holder of the Offered Shares will deliver to the Company a written notice (the “Notice”) stating: (i) the Holder’s bona fide intention to sell or otherwise transfer the Offered Shares; (ii) the name and address of each proposed purchaser or other transferee (the “Proposed Transferee”); (iii) the number of Offered Shares to be transferred to each Proposed Transferee; (iv) the bona fide cash price or other consideration for which the Holder proposes to transfer the Offered Shares (the “Offered Price”); and (v) that the Holder acknowledges this Notice is an offer to sell the Offered Shares to the Company and/or its assignee(s) pursuant to the Company’s Right of First Refusal at the Offered Price as provided for in this Exercise Agreement.

8.2 Exercise of Right of First Refusal. At any time within thirty (30) days after the date of the Notice, the Company and/or its assignee(s) may, by giving written notice to the Holder, elect to purchase all (or, with the consent of the Holder, less than all) the Offered Shares proposed to be transferred to any one or more of the Proposed Transferees named in the Notice, at the purchase price, determined as specified below.

8.3 Purchase Price. The purchase price for the Offered Shares purchased under this Section will be the Offered Price, provided that if the Offered Price consists of no legal consideration (as, for example, in the case of a transfer by gift) the purchase price will be the fair market value of the Offered Shares as determined in good faith by the Company’s Board of Directors. If the Offered Price includes consideration other than cash, then the value of the non-cash consideration, as determined in good faith by the Company’s Board of Directors, will conclusively be deemed to be the cash equivalent value of such non-cash consideration.

8.4 Payment. Payment of the purchase price for the Offered Shares will be payable, at the option of the Company and/or its assignee(s) (as applicable), by check or by cancellation of all or a portion of any outstanding purchase money indebtedness owed by the Holder to the Company (or to such assignee, in the case of a purchase of Offered Shares by such assignee) or by any combination thereof. The purchase price will be paid without interest within sixty (60) days after the Company’s receipt of the Notice, or, at the option of the Company and/or its assignee(s), in the manner and at the time(s) set forth in the Notice.

8.5 Holder’s Right to Transfer. If all of the Offered Shares proposed in the Notice to be transferred to a given Proposed Transferee are not purchased by the Company and/or its assignee(s) as provided in this Section, then the Holder may sell or otherwise transfer such Offered Shares to each Proposed Transferee at the Offered Price or at a higher price, provided that (i) such sale or other transfer

is consummated within ninety (90) days after the date of the Notice, (ii) any such sale or other transfer is effected in compliance with all applicable securities laws, and (iii) each Proposed Transferee agrees in writing that the provisions of this Section will continue to apply to the Offered Shares in the hands of such Proposed Transferee. If the Offered Shares described in the Notice are not transferred to each Proposed Transferee within such ninety (90) day period, then a new Notice must be given to the Company pursuant to which the Company will again be offered the Right of First Refusal before any Shares held by the Holder may be sold or otherwise transferred.

8.6    Exempt Transfers. Notwithstanding anything to the contrary in this Section, the following transfers of Vested Shares will be exempt from the Right of First Refusal: (i) the transfer of any or all of the Vested Shares during Purchaser’s lifetime by gift or on Purchaser’s death by will or intestacy to Purchaser’s “Immediate Family” (as defined below) or to a trust for the benefit of Purchaser or Purchaser’s Immediate Family, provided that each transferee or other recipient agrees in a writing satisfactory to the Company that the provisions of this Section will continue to apply to the transferred Vested Shares in the hands of such transferee or other recipient; (ii) any transfer of Vested Shares made pursuant to a statutory merger or statutory consolidation of the Company with or into another corporation or corporations (except that the Right of First Refusal will continue to apply thereafter to such Vested Shares, in which case the surviving corporation of such merger or consolidation shall succeed to the rights of the Company under this Section unless the agreement of merger or consolidation expressly otherwise provides); or (iii) any transfer of Vested Shares pursuant to the winding up and dissolution of the Company. As used herein, the term “Immediate Family” will mean Purchaser’s spouse, the lineal descendant or antecedent, father, mother, brother or sister, child, adopted child, grandchild or adopted grandchild of the Purchaser or the Purchaser’s spouse, or the spouse of any of the above or Spousal Equivalent, as defined herein. As used herein, a person is deemed to be a “Spousal Equivalent” provided the following circumstances are true: (i) irrespective of whether or not the Participant and the Spousal Equivalent are the same sex, they are the sole spousal equivalent of the other for the last twelve (12) months, (ii) they intend to remain so indefinitely, (iii) neither are married to anyone else, (iv) both are at least 18 years of age and mentally competent to consent to contract, (v) they are not related by blood to a degree of closeness that which would prohibit legal marriage in the state in which they legally reside, (vi) they are jointly responsible for each other’s common welfare and financial obligations, and (vii) they reside together in the same residence for the last twelve (12) months and intend to do so indefinitely.

8.7    Termination of Right of First Refusal. The Right of First Refusal will terminate as to all Shares (i) on the effective date of the first sale of Common Stock of the Company to the general public pursuant to a registration statement filed with and declared effective by the SEC under the Securities Act (other than a registration statement relating solely to the issuance of Common Stock pursuant to a business combination or an employee incentive or benefit plan) (ii) on any transfer or conversion of Shares made pursuant to a statutory merger or statutory consolidation of the Company with or into another corporation or corporations if the common stock of the surviving corporation or any direct or indirect parent corporation thereof is registered under the Exchange Act.

8.8    Encumbrances on Vested Shares. Purchaser may grant a lien or security interest in, or pledge, hypothecate or encumber Vested Shares only if each party to whom such lien or security interest is granted, or to whom such pledge, hypothecation or other encumbrance is made, agrees in a writing satisfactory to the Company that: (i) such lien, security interest, pledge, hypothecation or encumbrance will not apply to such Vested Shares after they are acquired by the Company and/or its assignees under this Section; and (ii) the provisions of this Exercise Agreement will continue to apply to such Vested Shares in the hands of such party and any transferee of such party. Purchaser may not grant a lien or security interest in, or pledge, hypothecate or encumber, any Unvested Shares.

9. Rights as a Stockholder. Subject to the terms and conditions of this Exercise Agreement, Purchaser will have all of the rights of a stockholder of the Company with respect to the Shares from and after the date that Shares are issued to Purchaser until such time as Purchaser disposes of the Shares or the Company and/or its assignee(s) exercise(s) the Right of First Refusal. Upon an exercise of the Right of First Refusal, Purchaser will have no further rights as a holder of the Shares so purchased upon such exercise, other than the right to receive payment for the Shares so purchased in accordance with the provisions of this Exercise Agreement, and Purchaser will promptly surrender the stock certificate(s) evidencing the Shares so purchased to the Company for transfer or cancellation.

10. Escrow. As security for Purchaser’s faithful performance of this Exercise Agreement, Purchaser agrees, immediately upon the issuance of the stock certificate(s) evidencing the Shares, that the Company shall deliver such certificate(s), together with the Stock Powers executed by Purchaser and by Purchaser’s spouse, if any (with the transferee, certificate number, date and number of Shares left blank), to the Secretary of the Company or other designee of the Company (the “Escrow Holder”), who is hereby appointed to hold such certificate(s) and Stock Powers in escrow and to take all such actions and to effectuate all such transfers and/or releases of such Shares as are in accordance with the terms of this Exercise Agreement. Purchaser and the Company agree that Escrow Holder will not be liable to any party to this Exercise Agreement (or to any other party) for any actions or omissions unless Escrow Holder is grossly negligent or intentionally fraudulent in carrying out the duties of Escrow Holder under this Exercise Agreement. Escrow Holder may rely upon any letter, notice or other document executed with any signature purported to be genuine and may rely on the advice of counsel and obey any order of any court with respect to the transactions contemplated by this Exercise Agreement. The Shares will be released from escrow upon termination of the Right of First Refusal.

11. Restrictive Legends and Stop-Transfer Orders.

11.1 Legends. Purchaser understands and agrees that the Company will place the legends set forth below or similar legends on any stock certificate(s) evidencing the Shares, together with any other legends that may be required by state or U.S. Federal securities laws, the Company’s Certificate of Incorporation or Bylaws, any other agreement between Purchaser and the Company or any agreement between Purchaser and any third party:

THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR UNDER THE SECURITIES LAWS OF CERTAIN STATES. THESE SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS, PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM. INVESTORS SHOULD BE AWARE THAT THEY MAY BE REQUIRED TO BEAR THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE PERIOD OF TIME. THE ISSUER OF THESE SECURITIES MAY REQUIRE AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER TO THE EFFECT THAT ANY PROPOSED TRANSFER OR RESALE IS IN COMPLIANCE WITH THE SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES LAWS.

THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN RESTRICTIONS ON PUBLIC RESALE AND TRANSFER, INCLUDING THE RIGHT OF FIRST REFUSAL HELD BY THE ISSUER AND/OR ITS ASSIGNEE(S) AS SET FORTH IN A STOCK OPTION EXERCISE AGREEMENT BETWEEN THE ISSUER AND THE ORIGINAL HOLDER OF THESE SHARES, A COPY OF WHICH MAY BE OBTAINED AT THE PRINCIPAL OFFICE OF THE ISSUER. SUCH PUBLIC SALE AND TRANSFER RESTRICTIONS INCLUDING THE RIGHT OF FIRST REFUSAL ARE BINDING ON TRANSFEREES OF THESE SHARES.

THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A 180 DAY MARKET STANDOFF RESTRICTION AS SET FORTH IN A CERTAIN AGREEMENT BETWEEN THE ISSUER AND THE ORIGINAL HOLDER OF THESE SHARES, A COPY OF WHICH MAY BE OBTAINED AT THE PRINCIPAL OFFICE OF THE ISSUER. AS A RESULT OF SUCH AGREEMENT, THESE SHARES MAY NOT BE TRADED PRIOR TO 180 DAYS AFTER THE EFFECTIVE DATE OF ANY PUBLIC OFFERING OF THE COMMON STOCK OF THE ISSUER HEREOF. SUCH RESTRICTION IS BINDING ON TRANSFEREES OF THESE SHARES.

11.2 Stop-Transfer Instructions. Purchaser agrees that, to ensure compliance with the restrictions imposed by this Exercise Agreement, the Company may issue appropriate “stop-transfer” instructions to its transfer agent, if any, and if the Company transfers its own securities, it may make appropriate notations to the same effect in its own records.

11.3 Refusal to Transfer. The Company will not be required (i) to transfer on its books any Shares that have been sold or otherwise transferred in violation of any of the provisions of this Exercise Agreement or (ii) to treat as owner of such Shares, or to accord the right to vote or pay dividends to any purchaser or other transferee to whom such Shares have been so transferred.

12. Tax Consequences. PURCHASER UNDERSTANDS THAT PURCHASER MAY SUFFER ADVERSE TAX CONSEQUENCES AS A RESULT OF PURCHASER’S PURCHASE OR DISPOSITION OF THE SHARES. PURCHASER REPRESENTS: (i) THAT PURCHASER HAS CONSULTED WITH ANY TAX ADVISER THAT PURCHASER DEEMS ADVISABLE IN CONNECTION WITH THE PURCHASE OR DISPOSITION OF THE SHARES AND (ii) THAT PURCHASER IS NOT RELYING ON THE COMPANY FOR ANY TAX ADVICE. Set forth below is a brief summary, as of the date the Plan was adopted by the Board, of some of the U.S. Federal and California tax consequences of exercise of the Option and disposition of the Shares. THIS SUMMARY IS NECESSARILY INCOMPLETE, AND THE TAX LAWS AND REGULATIONS ARE SUBJECT TO CHANGE. PURCHASER SHOULD CONSULT HIS OR HER OWN TAX ADVISER BEFORE EXERCISING THIS OPTION OR DISPOSING OF THE SHARES. IN ADDITION, THIS SUMMARY DOES NOT ADDRESS THE TAX CONSEQUENCES OF THE EXERCISE OF THE OPTION IF THE PURCHASER IS SUBJECT TO TAX IN A DIFFERENT STATE OR IN A DIFFERENT COUNTRY OR COUNTRIES OUTSIDE OF THE UNITED STATES, AND ANY SUCH PURCHASER SHOULD CONSULT HIS OR HER PERSONAL TAX ADVISOR BEFORE EXERCISING THE OPTION.

12.1 Exercise of Incentive Stock Option. If the Option qualifies as an ISO, there will be no regular U.S. Federal income tax liability or California income tax liability upon the exercise of the Option, although the excess, if any, of the Fair Market Value of the Shares on the date of exercise over the Exercise Price will be treated as a tax preference item for U.S. Federal alternative minimum tax purposes and may subject Purchaser to the alternative minimum tax in the year of exercise.

12.2 Exercise of Nonqualified Stock Option. If the Option does not qualify as an ISO, there may be a regular U.S. Federal income tax liability and a California income tax liability upon the exercise of the Option. Purchaser will be treated as having received compensation income (taxable at ordinary income tax rates) equal to the excess, if any, of the Fair Market Value of the Shares on the date of exercise over the Exercise Price. If Purchaser is or was an employee of the Company, the Company may be required to withhold from Purchaser’s compensation or collect from Purchaser and pay to the applicable taxing authorities an amount equal to a percentage of this compensation income at the time of exercise.

12.3 Disposition of Shares. The following tax consequences may apply upon disposition of the Shares.

(a) Incentive Stock Options. If the Shares are held for more than twelve (12) months after the date of the transfer of the Shares pursuant to the exercise of an ISO and are disposed of more than two (2) years after the Date of Grant, any gain realized on disposition of the Shares will be treated as long term capital gain for U.S. Federal and California income tax purposes. If Shares purchased under an ISO are disposed of within the applicable one (1) year or two (2) year period, any gain realized on such disposition will be treated as compensation income (taxable at ordinary income rates) to the extent of the excess, if any, of the Fair Market Value of the Shares on the date of exercise over the Exercise Price.

(b) Nonqualified Stock Options. If the Shares are held for more than twelve (12) months after the date of the transfer of the Shares pursuant to the exercise of an NQSO, any gain realized on disposition of the Shares will be treated as long term capital gain.

(c) Withholding. The Company may be required to withhold from the Purchaser’s compensation or collect from the Purchaser and pay to the applicable taxing authorities an amount equal to a percentage of this compensation income.

13. Compliance with Laws and Regulations. The issuance and transfer of the Shares will be subject to and conditioned upon compliance by the Company and Purchaser with all applicable U.S. Federal and state laws and regulations, all applicable foreign laws and regulations and with all applicable requirements of any stock exchange or automated quotation system on which the Company’s Common Stock may be listed or quoted at the time of such issuance or transfer.

14. Successors and Assigns. The Company may assign any of its rights under this Exercise Agreement, including its rights to purchase Shares under the Right of First Refusal. No other party to this Exercise Agreement may assign, whether voluntarily or by operation of law, any of its rights and obligations under this Exercise Agreement, except with the prior written consent of the Company. This Exercise Agreement shall be binding upon and inure to the benefit of the successors and assigns of the Company. Subject to the restrictions on transfer herein set forth, this Exercise Agreement will be binding upon Purchaser and Purchaser’s heirs, executors, administrators, legal representatives, successors and assigns.

15. Governing Law and Venue. This Exercise Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to that body of laws pertaining to conflict of laws. For purposes of any action, lawsuit or other proceedings brought to enforce this Exercise Notice, relating to it, or arising from it, the parties hereby submit to and consent to the sole and exclusive jurisdiction of the courts of Santa Clara County, California, or the federal courts for the United States for the Northern District of California, and no other courts, where this grant is made and/or to be performed. If any provision of this Exercise Notice is determined by a court of law to be illegal or unenforceable, then such provision will be enforced to the maximum extent possible and the other provisions will remain fully effective and enforceable.

16. Notices. Any and all notices required or permitted to be given to a party pursuant to the provisions of this Exercise Agreement will be in writing and will be effective and deemed to provide such party sufficient notice under this Exercise 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. All notices not delivered personally or by facsimile will be sent with postage and/or other charges prepaid and properly addressed to the party to be notified at the address or facsimile number set forth below the signature lines of this Exercise Agreement, 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. Notices to the Company will be marked “Attention: [●]”. Notices by facsimile shall be machine verified as received.

17. 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 Exercise Agreement.

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

19. Entire Agreement. The Plan, the Stock Option Agreement and this Exercise Agreement, together with all Exhibits thereto, constitute the entire agreement and understanding of the parties with respect to the subject matter of this Exercise Agreement, and supersede all prior understandings and agreements, whether oral or written, between or among the parties hereto with respect to the specific subject matter hereof.

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

21. Severability. If any provision of this Exercise 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 Exercise Agreement and the remainder of this Exercise 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 Exercise Agreement. Notwithstanding the forgoing, if the value of this Exercise 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.

22. Facsimile and Electronic Signatures. This Agreement may be executed and delivered by facsimile and upon such delivery the facsimile signature will be deemed to have the same effect as if the original signature had been delivered to the other party. Additionally, this Agreement may be executed and delivered electronically whether via the Company’s intranet or the Internet site of a third party or via email or such other means of electronic delivery specified by the Company.

IN WITNESS WHEREOF, the Company has caused this Stock Option Exercise Agreement to be executed by its duly authorized representative, and Purchaser has executed this Stock Option Exercise Agreement, as of the Effective Date indicated above.

BLOOM ENERGY CORPORATION	PURCHASER
By:
	(Signature)

(Please print name)	(Please print name)
(Please print title)
Address:	Address:
Fax No.:	Fax No.
Phone No.:	Phone No.:

List of Exhibits

Exhibit 1:	Stock Power and Assignment Separate from Stock Certificate
Exhibit 2:	Spouse Consent
Exhibit 3:	Copy of Purchaser’s Check

EXHIBIT 1

STOCK POWER AND ASSIGNMENT

SEPARATE FROM STOCK CERTIFICATE

Stock Power and Assignment

Separate from Stock Certificate

FOR VALUE RECEIVED and pursuant to that certain Stock Option Exercise Agreement No.                  dated as of             ,          (the “Agreement”), the undersigned hereby sells, assigns and transfers unto                                         ,                      shares of the Common Stock of Bloom Energy Corporation, a Delaware corporation (the “Company”), standing in the undersigned’s name on the books of the Company represented by Certificate No(s).                  delivered herewith, and does hereby irrevocably constitute and appoint the Secretary of the Company as the undersigned’s attorney-in-fact, with full power of substitution, to transfer said stock on the books of the Company. THIS ASSIGNMENT MAY ONLY BE USED AS AUTHORIZED BY THE AGREEMENT AND ANY EXHIBITS THERETO.

Dated:             ,
	PURCHASER
	(Signature)
	(Please Print Name)
	(Spouse’s Signature, if any)
	(Please Print Spouse’s Name)

Instructions to Purchaser: Please do not fill in any blanks other than the signature line. The purpose of this Stock Power and Assignment is to enable the Company to acquire the shares and to exercise its “Right of First Refusal” set forth in the Agreement without requiring additional signatures on the part of the Purchaser or Purchaser’s Spouse.

EXHIBIT 2

SPOUSE CONSENT

Spouse Consent

The undersigned spouse of                      (the “Purchaser”) has read, understands, and hereby approves the Stock Option Exercise Agreement between Purchaser and the Company (the “Agreement”). In consideration of the Company’s granting my spouse the right to purchase the Shares as set forth in the Agreement, the undersigned hereby agrees to be irrevocably bound by the Agreement and further agrees that any community property interest I may have in the Shares shall similarly be bound by the Agreement. The undersigned hereby appoints Purchaser as my attorney-in-fact with respect to any amendment or exercise of any rights under the Agreement.

Date:
		Print Name of Purchaser’s Spouse
		Signature of Purchaser’s Spouse
	Address:

EXHIBIT 3

COPY OF PURCHASER’S CHECK

BLOOM ENERGY CORPORATION

2012 EQUITY INCENTIVE PLAN

NOTICE OF STOCK OPTION GRANT

You (the “Participant”) have been granted an option (the “Option”) to purchase shares of Common Stock (the “Shares”) of Bloom Energy Corporation, a Delaware corporation (the “Company”), pursuant to the Company’s 2012 Equity Incentive Plan, as amended from time to time (the “Plan”) on the terms, and subject to the conditions, described below.

Participant:
Number of Shares:
Exercise Price Per Share:	US$
Date of Grant:
Vesting Commencement Date:
Expiration Date:	The date ten (10) years after the Date of Grant, with earlier expiration in the event of termination of service as provided in Section 3 of the Stock Option Agreement.
Tax Status of Option:	¨ Incentive Stock Option              ¨ Nonqualified Stock Option
(Check One)

Vesting Schedule: Provided Participant continues to provide services to the Company or any Subsidiary or Parent of the Company, the Option will become vested as to portions of the Shares as follows: (a) the Option will not be vested with respect to any of the Shares prior to the first anniversary of the Vesting Commencement Date; (b) the Option will become vested as to 20% of the Shares on the first anniversary of the Vesting Commencement Date; and (c) the Option will become vested and exercisable as to 1/60^th of the Shares monthly thereafter until 100% of the Shares are vested.

Exercise Schedule: ¨ Same as Vesting Schedule

Additional Terms: ¨ If this boxed is checked, the additional terms and conditions set forth on Attachment 1 hereto (which must be executed by the Company and the Participant) are applicable and are incorporated herein by reference. (No document need be attached as Attachment 1 if the box is not checked.)

General: By their signatures below, Participant and the Company agree that the Option is granted under and governed by this Notice and by the provisions of the Plan and the Stock Option Agreement attached hereto as Exhibit I. The Plan and the Stock Option Agreement are incorporated herein by reference. Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Plan or in the Stock Option Agreement, as applicable. Participant acknowledges receipt of a copy of the Plan and the Stock Option Agreement, represents that Participant has carefully read and is familiar with their provisions, and hereby accepts the Option subject to all of their terms and conditions. Participant acknowledges that there may be adverse tax consequences upon exercise of the Option or disposition of the Shares and that Participant should consult a tax adviser prior to such exercise or disposition.

This Notice may be executed and delivered by facsimile and upon such delivery the facsimile signature will be deemed to have the same effect as if the original signature had been delivered to the other party. Additionally, this Notice may be executed and delivered electronically whether via the Company’s intranet or the Internet site of a third party or via email or such other means of electronic delivery specified by the Company.

By Participant’s acceptance hereof (whether written, electronic or otherwise), Participant agrees, to the fullest extent permitted by law, that in lieu of receiving documents in paper format, Participant accepts the electronic delivery of any documents the Company, or any third party involved in administering the Plan which the Company may designate, may deliver in connection with this grant (including the Plan, the Notice of Grant, this Stock Option Agreement, the 701 Disclosures, account statements, or other communications or information) whether via the Company’s intranet or the Internet site of such third party or via email or such other means of electronic delivery specified by the Company.

Furthermore, by Participant’s acceptance hereof (whether written, elective or otherwise), Participant agrees to participate in the Plan through an on-line or electronic system established and maintained by the Company or a third party designated by the Company.

Bloom Energy Corporation	Participant
Signature:	Signature:
Typed Name:
Title:
ATTACHMENT: Exhibit I – Stock Option Agreement

EXHIBIT I

BLOOM ENERGY CORPORATION

2012 EQUITY INCENTIVE PLAN

STOCK OPTION AGREEMENT

This Stock Option Agreement (the “Agreement”) is made and entered into as of the date of grant (the “Date of Grant”) set forth on the notice of stock option grant attached as the facing page hereto (the “Grant Notice”) by and between Bloom Energy Corporation, a Delaware corporation (the “Company”), and the participant named on the Grant Notice (the “Participant”). Capitalized terms not defined herein shall have the meaning ascribed to them in the Company’s 2012 Equity Incentive Plan, as amended from time to time (the “Plan”), or in the Grant Notice, as applicable.

1. GRANT OF OPTION. The Company hereby grants to Participant an option (this “Option”) to purchase the total number of shares of Common Stock of the Company (the “Common Stock”) set forth in the Grant Notice as Number of Shares (the “Shares”) at the Exercise Price Per Share set forth in the Grant Notice (the “Exercise Price”), subject to all of the terms and conditions of this Agreement (including the country-specific terms and conditions for non-U.S. Participants set forth in Exhibit A) and the Plan. If designated as an Incentive Stock Option in the Grant Notice, the Option is intended to qualify as an “incentive stock option” (the “ISO”) within the meaning of Section 422 of the Internal Revenue Code of 1986, as amended (the “Code”), except that if on the date of grant the Participant is not subject to U.S. income tax, then this Option shall be a NQSO.

2. EXERCISE PERIOD.

2.1 Exercise Period of Option. This Option will become vested during its term as to portions of the Shares in accordance with the Vesting Schedule set forth in the Grant Notice. Notwithstanding any provision in the Plan or this Agreement to the contrary, Options for Unvested Shares will not be exercisable on or after Participant’s Termination Date.

2.2 Vesting of Options. Shares that are vested pursuant to the schedule set forth in Section 2.1 are “Vested Shares.” Shares that are not vested pursuant to the schedule set forth in Section 2.1 are “Unvested Shares.”

2.3 Expiration. The Option shall expire on the Expiration Date set forth above or earlier as provided in Section 3 below or pursuant to Section 4.6 of the Plan.

3. TERMINATION.

3.1 Termination for Any Reason Except Death, Disability or Cause. If Participant is Terminated for any reason, except death, Disability or for Cause, the Option, to the extent (and only to the extent) that it would have been exercisable by Participant on the Termination Date, may be exercised by Participant no later than three (3) months after the Termination Date, but in any event no later than the Expiration Date.

3.2 Termination Because of Death or Disability. If Participant is Terminated because of death or Disability of Participant (or Participant dies within three (3) months of Termination when Termination is for any reason other than Participant’s Disability or for Cause), the Option, to the extent that it is exercisable by Participant on the Termination Date, may be exercised by Participant (or Participant’s legal representative) no later than twelve (12) months after the Termination Date, but in any

event no later than the Expiration Date. Any exercise beyond (i) three (3) months after the Termination Date when the Termination is for any reason other than the Participant’s death or disability, within the meaning of Section 22(e)(3) of the Code; or (ii) twelve (12) months after the Termination Date when the termination is for Participant’s disability, within the meaning of Section 22(e)(3) of the Code, is deemed to be an NQSO.

3.3 Termination for Cause. If the Participant is terminated for Cause, the Participant may exercise such Participant’s Options, but not to an extent greater than such Options are exercisable as to Vested Shares upon the Termination Date and Participant’s Options shall expire on such Participant’s Termination Date, or at such later time and on such conditions as are determined by the Committee.

3.4 No Obligation to Employ. Nothing in the Plan or this Agreement shall confer on Participant any right to continue in the employ of, or other relationship with, the Company or any Parent or Subsidiary of the Company, or limit in any way the right of the Company or any Parent or Subsidiary of the Company to terminate Participant’s employment or other relationship at any time, with or without Cause.

4. MANNER OF EXERCISE.

4.1 Stock Option Exercise Agreement. To exercise this Option, Participant (or in the case of exercise after Participant’s death or incapacity, Participant’s executor, administrator, heir or legatee, as the case may be) must deliver to the Company an executed stock option exercise agreement in the form attached hereto as Exhibit C, or in such other form as may be approved by the Committee from time to time (the “Exercise Agreement”), which shall set forth, inter alia, (i) Participant’s election to exercise the Option, (ii) the number of Shares being purchased, (iii) any restrictions imposed on the Shares and (iv) any representations, warranties and agreements regarding Participant’s investment intent and access to information as may be required by the Company to comply with applicable securities laws. If someone other than Participant exercises the Option, then such person must submit documentation reasonably acceptable to the Company verifying that such person has the legal right to exercise the Option and such person shall be subject to all of the restrictions contained herein as if such person were the Participant.

4.2 Limitations on Exercise. The Option may not be exercised unless such exercise is in compliance with all applicable U.S. Federal and state securities laws and any applicable foreign securities and exchange control laws, in each case as they are in effect on the date of exercise as determined by the Company.

4.3 Payment. The Exercise Agreement shall be accompanied by full payment of the Exercise Price for the Shares being purchased in cash (or cash equivalent acceptable to the Company), or where permitted by law:

(a) by surrender of shares of the Company’s Common Stock that (i) either (A) have been owned by the Participant for more than six (6) months and have been paid for within the meaning of SEC Rule 144 (and, if such shares were purchased from the Company by use of a promissory note, such note has been fully paid with respect to such shares); or (B) were obtained by Participant in the open public market; and (ii) are clear of all liens, claims, encumbrances or security interests, provided, however, that if Participant resides outside the United States, the use of this method of payment shall be subject to the approval of the Committee;

(b) provided that a public market for the Company’s stock exists: (i) through a “same day sale” commitment from Participant and a broker-dealer that is a member of the National Association of Securities Dealers (an “NASD Dealer”) whereby Participant irrevocably elects to exercise the Option and to sell a portion of the Shares so purchased sufficient to pay for the total Exercise Price and whereby the NASD Dealer irrevocably commits upon receipt of such Shares to forward the total Exercise Price directly to the Company, or (ii) through a “margin” commitment from Participant and an NASD Dealer whereby Participant irrevocably elects to exercise the Option and to pledge the Shares so purchased to the NASD Dealer in a margin account as security for a loan from the NASD Dealer in the amount of the total Exercise Price, and whereby the NASD Dealer irrevocably commits upon receipt of such Shares to forward the total Exercise Price directly to the Company; or

(c) any other form of consideration approved by the Committee; or

(d) by any combination of the foregoing.

4.4 Tax Withholding.

(a) Participant acknowledges that, regardless of any action taken by the Company or, if different, Participant’s employer (the “Employer”), the ultimate liability for all income tax, social insurance, payroll tax, fringe benefits tax, payment on account or other tax related items related to Participant’s participation in the Plan and legally applicable to Participant (“Tax-Related Items”) is and remains Participant’s responsibility and may exceed the amount actually withheld by the Company or the Employer. Participant further acknowledges that the Company and/or the Employer (i) make no representations or undertakings regarding the treatment of any Tax-Related Items in connection with any aspect of the Option, including, but not limited to, the grant, vesting or exercise of the Option, the acquisition of Shares pursuant to such exercise, the subsequent sale of Shares acquired pursuant to such exercise and the receipt of any dividends; and (ii) do not commit to and are under no obligation to structure the terms of the grant or any aspect of the Option to reduce or eliminate Participant’s liability for Tax-Related Items or achieve any particular tax result. Further, if Participant is subject to Tax-Related Items in more than one jurisdiction between the Date of Grant and the date of any relevant taxable or tax withholding event, as applicable, Participant acknowledges that the Company and/or the Employer (or former employer, as applicable) may be required to withhold or account for Tax-Related Items in more than one jurisdiction.

(b) Prior to the relevant taxable or tax withholding event, as applicable, Participant agrees to make adequate arrangements satisfactory to the Company and/or the Employer to satisfy all Tax-Related Items. In this regard, Participant authorizes the Company and/or the Employer, or their respective agents, at their discretion, to satisfy the obligations with regard to all Tax-Related Items by one or a combination of the following:

(i) withholding from Participant’s wages or other cash compensation paid to Participant by the Company and/or the Employer; and/or

(ii) withholding from proceeds of the sale of Shares acquired at exercise of this Option either through a voluntary sale or through a mandatory sale arranged by the Company (on Participant’s behalf pursuant to this authorization without further consent).

Alternatively, if the Committee permits, Participant may satisfy the obligations with regard to Tax-Related Items by requesting that the Company retain the minimum number of Shares with a Fair Market Value equal to the minimum amount of Tax-Related Items required to be withheld; but in no

event will the Company withhold Shares if such withholding would result in adverse accounting consequences to the Company. The Committee is under no obligation to permit Participant to satisfy the obligations with regard to Tax-Related Items by this method, even if the Committee permits such for other participants in the Plan. In the event the Committee permits this withholding method to be used to satisfy the obligations with regard to Tax-Related Items, the Company shall issue the net number of Shares to Participant by deducting the Shares retained from the Shares issuable upon exercise and, for tax purposes, Participant will be deemed to have been issued the full number of Shares subject to the exercised portion of the Option, notwithstanding that a number of Shares are retained by the Company for the purpose of paying the Tax-Related Items.

Depending on the withholding method, the Company may withhold or account for Tax-Related Items by considering applicable minimum statutory withholding amounts or other applicable withholding rates, including maximum applicable rates, in which case Participant will receive a refund of any over-withheld amount in cash and will have no entitlement to the Common Stock equivalent.

(c) Participant agrees to pay to the Company or the Employer any amount of Tax-Related Items that the Company or the Employer may be required to withhold or account for as a result of Participant’s participation in the Plan that cannot be satisfied by the means previously described. The Company may refuse to issue or deliver the Shares or the proceeds of the sale of Shares, if Participant fails to comply with his or her obligations in connection with the Tax-Related Items.

(d) Set forth in Exhibit B is a brief summary, as of the Effective Date of the Plan, of some of the U.S. Federal and California tax consequences of exercise of the Option and disposition of the Shares.

4.5 Issuance of Shares. Provided that the Exercise Agreement and payment are in form and substance satisfactory to counsel for the Company and any obligations with respect to Tax-Related Items have been satisfied or otherwise arranged with the Company, the Company shall issue the Shares registered in the name of Participant, Participant’s authorized assignee, or Participant’s legal representative, and shall deliver certificates representing the Shares with the appropriate legends affixed thereto.

5. NOTICE OF DISQUALIFYING DISPOSITION OF ISO SHARES. If the Option is an ISO, and if Participant sells or otherwise disposes of any of the Shares acquired pursuant to the ISO on or before the later of (i) the date two (2) years after the Date of Grant, and (ii) the date one (1) year after transfer of such Shares to Participant upon exercise of the Option, Participant shall immediately notify the Company in writing of such disposition.

6. COMPLIANCE WITH LAWS AND REGULATIONS. The Plan and this Agreement are intended to comply with Section 25102(o) of the California Corporations Code and any regulations relating thereto. Any provision of this Agreement that is inconsistent with Section 25102(o) or any regulations relating thereto shall, without further act or amendment by the Company or the Board, be reformed to comply with the requirements of Section 25102(o) and any regulations relating thereto. The exercise of the Option and the issuance and transfer of Shares shall be subject to compliance by the Company and Participant with all applicable requirements of U.S. Federal and state securities laws, all applicable foreign laws, and with all applicable requirements of any stock exchange on which the Company’s Common Stock may be listed at the time of such issuance or transfer. Participant understands that the Company is under no obligation to register or qualify the Shares with the SEC, any state securities commission, any foreign governmental agency or any stock exchange to effect such compliance.

7. NATURE OF GRANT. In accepting the Option, Participant acknowledges, understands and agrees that:

(a) the Plan is established voluntarily by the Company, it is discretionary in nature, and may be amended, suspended or terminated by the Company at any time, to the extent permitted by the Plan;

(b) the grant of the Option is voluntary and occasional and does not create any contractual or other right to receive future grants of options, or benefits in lieu of options, even if options have been granted in the past;

(c) all decisions with respect to future option or other grants, if any, will be at the sole discretion of the Company;

(d) Participant is voluntarily participating in the Plan;

(e) the Option and any Shares acquired under the Plan are not intended to replace any pension rights or compensation;

(f) the Option and any Shares acquired under the Plan and the income and value of same, are not part of normal or expected compensation for purposes of calculating any severance, resignation, termination, redundancy, dismissal, end-of-service payments, bonuses, long-service awards, pension or retirement or welfare benefits or similar payments;

(g) the future value of the Shares underlying the Option is unknown, indeterminable, and cannot be predicted with certainty;

(h) if the underlying Shares do not increase in value, the Option will have no value;

(i) if Participant exercises the Option and acquires Shares, the value of such Shares may increase or decrease in value, even below the Exercise Price;

(j) no claim or entitlement to compensation or damages shall arise from forfeiture of the Option resulting from the termination of Participant’s employment or other service relationship (for any reason whatsoever, whether or not later found to be invalid or in breach of employment laws in the jurisdiction where Participant is employed or the terms of Participant’s employment agreement, if any) and, in consideration of the grant of the Option to which Participant is otherwise not entitled, Participant irrevocably agrees never to institute any claim against the Company, any of its Subsidiaries or the Employer, waives his or her ability, if any, to bring any such claim, and releases the Company, its Subsidiaries and the Employer from any such claim; if, notwithstanding the foregoing, any such claim is allowed by a court of competent jurisdiction, then, by participating in the Plan, Participant shall be deemed irrevocably to have agreed not to pursue such claim and agree to execute any and all documents necessary to request dismissal or withdrawal of such claim;

(k) for purposes of the Option, Participant’s employment or service relationship will be considered terminated as of the date Participant is no longer actively providing services to the Company or a Subsidiary (regardless of the reason for such termination and whether or not later found to be invalid or in breach of employment laws in the jurisdiction where Participant is employed or the terms of Participant’s employment agreement, if any), and unless otherwise expressly provided in this Agreement or determined by the Company, (i) Participant’s right to vest in the Option under the Plan, if any, will terminate as of such date and will not be extended by any notice period (e.g., Participant’s period

of service would not include any contractual notice period or any period of “garden leave” or similar period mandated under employment laws in the jurisdiction where Participant is employed or the terms of Participant’s employment agreement, if any); and (ii) the period (if any) during which Participant may exercise the Option after such termination of Participant’s employment or service relationship will commence on the date Participant ceases to actively provide services and will not be extended by any notice period mandated under employment laws in the jurisdiction where Participant is employed or terms of Participant’s employment agreement, if any;

(l) unless otherwise provided in the Plan or by the Company in its discretion, the Option and the benefits evidenced by this Agreement do not create any entitlement to have the Option or any such benefits transferred to, or assumed by, another company nor to be exchanged, cashed out or substituted for, in connection with any corporate transaction affecting the shares of the Company; and

(m) the following provisions apply only if Participant is providing services outside the United States:

(i) the Option and the Shares subject to the Option are not part of normal or expected compensation or salary for any purpose; and

(ii) neither the Company, the Employer nor any Subsidiary shall be liable for any foreign exchange rate fluctuation between Participant’s local currency and the United States Dollar that may affect the value of the Option or of any amounts due to Participant pursuant to the exercise of the Option or the subsequent sale of any Shares acquired upon exercise.

8. NO ADVICE REGARDING GRANT. The Company is not providing any tax, legal or financial advice, nor is the Company making any recommendations regarding Participant’s participation in the Plan, or Participant’s acquisition or sale of the underlying Shares. Participant is hereby advised to consult with his or her own personal tax, legal and financial advisors regarding his or her participation in the Plan before taking any action related to the Plan.

9. LANGUAGE. If Participant has received this Agreement, or any other document related to the Option and/or the Plan translated into a language other than English and if the meaning of the translated version is different than the English version, the English version will control.

10. NONTRANSFERABILITY OF OPTION. The Option may not be transferred in any manner other than by will or by the laws of descent and distribution, and, with respect to NQSOs, by instrument to an inter vivos or testamentary trust in which the options are to be passed to beneficiaries upon the death of the trustor (settlor), or by gift to “immediate family” as that term is defined in 17 C.F.R. 240.16a-1(e), and may be exercised during the lifetime of Participant only by Participant or in the event of Participant’s incapacity, by Participant’s legal representative. The terms of the Option shall be binding upon the executors, administrators, successors and assigns of Participant.

11. COMPANY’S RIGHT OF FIRST REFUSAL. Before any Vested Shares held by Participant or any transferee of such Vested Shares may be sold or otherwise transferred (including without limitation a transfer by gift or operation of law), the Company and/or its assignee(s) shall have an assignable right of first refusal to purchase the Vested Shares to be sold or transferred on the terms and conditions set forth in the Exercise Agreement (the “Right of First Refusal”). The Company’s Right of First Refusal will terminate when the Company’s securities become publicly traded.

12. PRIVILEGES OF STOCK OWNERSHIP. Participant shall not have any of the rights of a shareholder with respect to any Shares until the Shares are issued to Participant.

13. EXHIBIT A. The Option shall be subject to any special terms and conditions set forth in Exhibit A to this Agreement for Participant’s country. Moreover, if Participant relocates to one of the countries included in Exhibit A, the special terms and conditions for such country will apply to Participant, to the extent the Company determines that the application of such terms and conditions is necessary or advisable for legal or administrative reasons. Exhibit A constitutes part of this Agreement.

14. IMPOSITION OF OTHER REQUIREMENTS. The Company reserves the right to impose other requirements on Participant’s participation in the Plan, on the Option and on any Shares acquired upon exercise of the Option, to the extent the Company determines it is necessary or advisable for legal or administrative reasons, and to require Participant to sign any additional agreements or undertakings that may be necessary to accomplish the foregoing.

15. GENERAL PROVISIONS

15.1 Interpretation. Any dispute regarding the interpretation of this Agreement shall be submitted by Participant or the Company to the Committee for review. The resolution of such a dispute by the Committee shall be final and binding on the Company and Participant.

15.2 Entire Agreement. The Plan is incorporated herein by reference. This Agreement and the Plan constitute the entire agreement of the parties and supersede all prior undertakings and agreements with respect to the subject matter hereof.

16. 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. Any notice for delivery outside the United States will be sent by facsimile or by express courier. Any notice not delivered personally or by facsimile will be sent with postage and/or other charges prepaid and properly addressed to the party to be notified at the address or facsimile number set forth below the signature lines of this Agreement, 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. Notices to the Company will be marked “Attention: President.” Notices by facsimile shall be machine verified as received.

17. SUCCESSORS AND ASSIGNS. The Company may assign any of its rights under this Agreement including its rights to purchase Shares under the Right of First Refusal. This Agreement shall be binding upon and inure to the benefit of the successors and assigns of the Company. Subject to the restrictions on transfer set forth herein, this Agreement shall be binding upon Participant and Participant’s heirs, executors, administrators, legal representatives, successors and assigns.

18. GOVERNING LAW AND VENUE. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to that body of laws pertaining to conflict of laws. For purposes of any action, lawsuit or other proceedings brought to enforce

this Agreement, relating to it, or arising from it, the parties hereby submit to and consent to the sole and exclusive jurisdiction of the courts of Santa Clara County, California, or the federal courts for the United States for the Northern District of California, and no other courts, where this grant is made and/or to be performed.

19. 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. 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.

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

22. 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.

23. WAIVER. Participant acknowledges that a waiver by the Company of breach of any provision of this Agreement shall not operate or be construed as a waiver of any other provision of this Agreement, or of any subsequent breach by Participant or any other participant in the Plan.

EXHIBIT A TO

BLOOM ENERGY CORPORATION

2012 EQUITY INCENTIVE PLAN

STOCK OPTION AGREEMENT

PROVISIONS FOR NON-U.S. PARTICIPANTS

Terms and Conditions

This Exhibit A includes additional terms and conditions that govern the Option granted to Participant by Bloom Energy Corporation (the “Company”) under the Company’s 2012 Equity Incentive Plan (the “Plan”) if he or she is in one of the countries listed below. Capitalized terms not defined herein shall have the meaning ascribed to them in the Plan or the Agreement to which this Exhibit A is attached, as applicable.

Notifications

This Exhibit A may also include information regarding exchange controls and certain other issues of which Participant should be aware with respect to his or her participation in the Plan. The information is based on the securities, exchange control, and other laws in effect in the respective countries as of May 2012. Such laws are often complex and change frequently. As a result, the Company strongly recommends that Participant not rely on the information in this Exhibit A as the only source of information relating to the consequences of Participant’s participation in the Plan because the information may be out of date at the time Participant exercises the Option or sells Shares acquired under the Plan.

In addition, the information contained herein is general in nature and may not apply to Participant’s particular situation, and the Company is not in a position to assure Participant of a particular result. Accordingly, the Participant is advised to seek appropriate professional advice as to how the relevant laws in his or her country may apply to Participant’s situation.

Finally, if Participant is a citizen or resident of a country other than the one in which he or she is currently working, or is considered a resident of another country for local law purposes, or if Participant transfers employment and/or residency to another country after the Option has been granted, the terms and conditions and the notifications contained herein may not be applicable in the same manner. The Company shall, in its sole discretion, determine to what extent the terms and conditions included herein will apply to Participant in such circumstances.

GENERAL

Terms and Conditions

This provision applies to Participants in any non-U.S. jurisdiction:

Data Privacy. Participant hereby explicitly and unambiguously consents to the collection, use and transfer, in electronic or other form, of Participant’s personal data as described in this Agreement and any other Option grant materials by and among, as applicable, the Employer, the Company and its Subsidiaries for the exclusive purpose of implementing, administering and managing Participant’s participation in the Plan.

Participant understands that the Company and the Employer may hold certain personal information about Participant, including, but not limited to, Participant’s name, home address and telephone number, date of birth, social insurance number or other identification number, salary, nationality, job title, any shares of stock or directorships held in the Company, details of all options or any other entitlement to shares of stock awarded, canceled, exercised, vested, unvested or outstanding in Participant’s favor (“Data”), for the exclusive purpose of implementing, administering and managing the Plan.

Participant understands that Data may be transferred a stock plan service provider as may be selected by the Company in the future, which is assisting the Company with the implementation, administration and management of the Plan. Participant understands that the recipients of Data may be located in the United States or elsewhere, and that the recipient’s country (e.g., the United States) may have different data privacy laws and protections than Participant’s country. Participant understands that if he or she resides outside the United States, he or she may request a list with the names and addresses of any potential recipients of Data by contacting his or her local human resources representative. Participant authorizes the Company and any other possible recipients which may assist the Company (presently or in the future) with implementing, administering and managing the Plan to receive, possess, use, retain and transfer the Data, in electronic or other form, for the sole purposes of implementing, administering and managing Participant’s participation in the Plan. Participant understands that Data will be held only as long as is necessary to implement, administer and manage Participant’s participation in the Plan. Participant understands that he or she may, at any time, view Data, request additional information about the storage and processing of Data, require any necessary amendments to Data or refuse or withdraw the consents herein, in any case without cost, by contacting in writing his or her local human resources representative. Further, Participant understands that he or she is providing the consents herein on a purely voluntary basis. If Participant does not consent, or if Participant later seeks to revoke his or her consent, his or her employment status or service and career with the Employer will not be adversely affected; the only adverse consequence of refusing or withdrawing Participant’s consent is that the Company would not be able to grant Options or other equity awards to Participant or administer or maintain such awards. Therefore, Participant understands that refusing or withdrawing his or her consent may affect Participant’s ability to participate in the Plan. For more information on the consequences of Participant’s refusal to consent or withdrawal of consent, Participant understands that he or she may contact his or her local human resources representative.

BRAZIL

Notifications

Compliance with Law. By accepting the Option, Participant acknowledges his or her agreement to comply with applicable Brazilian laws and to pay any and all applicable taxes associated with the Option and any Shares acquired under the Plan.

Exchange Control Information. If Participant is resident or domiciled in Brazil, he or she will be required to submit annually a declaration of assets and rights held outside of Brazil to the Central Bank of Brazil if the aggregate value of such assets and rights is equal to or greater than US$100,000. Assets and rights that must be reported include Shares acquired under the Plan.

CHINA

Terms and Conditions

Termination Because of Death or Disability. This provision replaces Section 3.2 of the Agreement and applies only to Participants who are nationals of the People’s Republic of China (“PRC”):

If Participant is Terminated because of death or Disability of Participant (or Participant dies within three (3) months of Termination when Termination is for any reason other than Participant’s Disability or for Cause), the Option, to the extent that it is exercisable by Participant on the Termination Date, may be exercised by Participant (or Participant’s legal representative) no later than six (6) months after the Termination Date or such longer period (up to twelve (12) months) as may be permitted by the PRC State Administration of Foreign Exchange and the Company, but in any event no later than the Expiration Date.

Limitations on Exercise. This provision supplements Section 4.2 of the Agreement and applies only to Participants who are PRC nationals:

Further, this Option may not be exercised until such time as (a) the Common Stock is publicly traded on an established stock exchange or recognized market system and (b) the Company (or a Subsidiary) has received all necessary approvals from the PRC State Administration of Foreign Exchange to permit the operation of the Plan and the issuance of Shares under the Plan in China, as determined by the Company in its sole discretion.

Payment. This provision replaces Section 4.3 of the Agreement:

The Exercise Agreement shall be accompanied by full payment of the Exercise Price for the Shares being purchased. To facilitate compliance with exchange control laws in China, payment of the Exercise Price may only be paid (a) through a “same day sale” commitment from Participant and a broker-dealer that is a member of the National Association of Securities Dealers (an “NASD Dealer”) whereby Participant irrevocably elects to exercise the Option and to sell all of the Shares so purchased to pay for the total Exercise Price and whereby the NASD Dealer irrevocably commits upon receipt of such Shares to forward the total Exercise Price directly to the Company, or (b) through a “margin” commitment from Participant and an NASD Dealer whereby Participant irrevocably elects to exercise the Option and to pledge the Shares so purchased to the NASD Dealer in a margin account as security for a loan from the NASD Dealer in the amount of the total Exercise Price, and whereby the NASD Dealer irrevocably commits upon receipt of such Shares to forward the total Exercise Price directly to the Company; in each case, the remaining sale proceeds, less any brokerage fees or commissions, shall be remitted to Participant in accordance with any applicable exchange control laws and regulations. The Company reserves the right to provide Participant with additional methods of payment, to the extent permitted under the Plan, depending on the development of exchange control and other laws in the PRC and/or any applicable regulatory requirements.

Exchange Control Restrictions. This provision applies only to Participants who are PRC nationals:

Participant understands and agrees that, due to exchange control laws in China, he or she will be required to immediately repatriate to China any proceeds received in connection with the exercise of the Option and the immediate sale of Shares described above. Participant further understands that the repatriation of the proceeds may need to be effectuated through a special foreign exchange account established by the Company or a Subsidiary, and Participant hereby agrees that the proceeds from the sale of Shares acquired under the Plan may be transferred to such special account prior to being delivered to Participant. Participant also understands that the Company will deliver the proceeds to him or her as soon as

practicable after the exercise and sale of Shares, but there may be delays in distributing the funds to Participant due to exchange control requirements in China. Further, the proceeds may be paid to Participant in U.S. dollars or in local currency at the Company’s discretion and the proceeds may be paid to Participant in installments, one or some of which may be contingent upon Participant’s payment to Participant’s employer of the amount of any Tax-Related Items. If the proceeds are paid to Participant in U.S. dollars, Participant will be required to set up a U.S. dollar bank account in China so that the proceeds may be deposited into this account. If the proceeds are paid to Participant in local currency, the Company is under no obligation to secure any particular exchange conversion rate and the Company may face delays in converting the proceeds to local currency due to exchange control restrictions. Participant agrees to bear any currency fluctuation risk between the time the Shares are sold and the time the sale proceeds are distributed through any special foreign exchange account. Participant further agrees to comply with any other requirements that may be imposed by the Company in the future to facilitate compliance with exchange control requirements in China.

GERMANY

Notifications

Exchange Control Notification. Cross-border payments in excess of €12,500 must be reported to the German Federal Bank on a monthly basis. Participant will be responsible for obtaining the appropriate form from the bank and complying with the applicable reporting obligations.

INDIA

Terms and Conditions

Payment. This provision supplements Section 4.3 of the Agreement:

Please note that, due to exchange control restrictions in India, if Participant pays the Exercise Price as described in Section 4.3(b), all of the Shares being purchased must be sold, i.e., Participant may not sell only a portion of the Shares being purchased at the time of exercise. The Company reserves the right to provide Participant with this method of payment depending on the development of exchange control laws in India and/or any applicable regulatory requirements.

Notifications

Exchange Control Notification. Participant must repatriate any funds received pursuant to the Plan (e.g., proceeds from the sale of Shares, cash dividends) to India within 90 days of receipt. Participant should obtain evidence of the repatriation of funds in the form of a foreign inward remittance certificate (“FIRC”) from the bank where he or she deposits the foreign currency. Participant should maintain the FIRC as evidence of the repatriation of funds in the event the Reserve Bank of India or the Employer requests proof of repatriation.

MEXICO

Terms and Conditions

Acknowledgement of the Agreement. By accepting the Option, Participant acknowledges that he or she has received a copy of the Plan and the Agreement, including this Exhibit A, which he or she has reviewed. Participant further acknowledges that he or she accepts all the provisions of the Plan and the Agreement, including this Exhibit A. Participant also acknowledges that he or she has read and specifically and expressly approves the terms and conditions set forth in the “Nature of Grant” section found in the Agreement, which clearly provide as follows:

(1) Participant’s participation in the Plan does not constitute an acquired right;

(2) The Plan and Participant’s participation in it are offered by the Company on a wholly discretionary basis;

(3) Participant’s participation in the Plan is voluntary; and

(4) The Company and its Subsidiaries are not responsible for any decrease in the value of any Shares acquired at exercise of the Option.

Labor Law Acknowledgement and Policy Statement. By accepting the Option, Participant acknowledges that the Company, with registered offices at 1299 Orleans Drive, Sunnyvale, California 94089, United States of America, is solely responsible for the administration of the Plan. Participant further acknowledges that his or her participation in the Plan, the grant of the Option and any acquisition of Shares under the Plan do not constitute an employment relationship between Participant and the Company because Participant is participating in the Plan on a wholly commercial basis. Based on the foregoing, Participant expressly acknowledges that the Plan and the benefits that he or she may derive from participation in the Plan do not establish any rights between Participant and the Employer, do not form part of the employment conditions and/or benefits provided by the Employer, and any modification of the Plan or its termination shall not constitute a change or impairment of the terms and conditions of Participant’s employment.

Participant further understands that his or her participation in the Plan is the result of a unilateral and discretionary decision of the Company; therefore, the Company reserves the absolute right to amend and/or discontinue Participant’s participation in the Plan at any time, without any liability to Participant.

Finally, Participant hereby declares that he or she does not reserve to him or herself any action or right to bring any claim against the Company for any compensation or damages regarding any provision of the Plan or the benefits derived under the Plan, and that he or she therefore grants a full and broad release to the Company, its Subsidiaries, branches, representation offices, shareholders, officers, agents and legal representatives, with respect to any claim that may arise.

Spanish Translation

Reconocimiento del Contrato. Al aceptar la Opción, la persona a quien se otorga dicha Opción reconoce que ha recibido una copia del Plan y del Contrato, incluyendo este Anexo A, mismos que ha revisado. La persona a quien se otorga la Opción reconoce, además, que acepta todas las disposiciones del Plan y del Contrato, incluyendo este Anexo A. La persona a quien se otorga la Opción también reconoce que ha leído y aprueba de forma expresa los términos y condiciones establecidos en la sección del Contrato intitulada “Naturaleza del Otorgamiento” que claramente dispone lo siguiente:

(1) La participación de la persona a quien se otorga la Opción en el Plan no constituye un derecho adquirido;

(2) El Plan y la participación de la persona a quien se otorga la Opción en el Plan se ofrecen por la Compañía de forma totalmente discrecional;

(3) La participación de la persona a quien se otorga la Opción en el Plan es voluntaria; y

(4) La Compañía, sus Subsidiarias no son responsables por cualquier disminución en el valor de las Acciones adquiridas al momento de ejercer la Opción.

Reconocimiento de Ley Laboral y Declaración de la Política. Al aceptar la Opción, la persona a quien se otorga la Opción reconoce que la Compañía, con oficinas registradas en 1299 Orleans Drive, Sunnyvale, California 94089, Estados Unidos de América, es la única responsable de la administración del Plan. Además, la persona a quien se otorga la Opción reconoce que su participación en el Plan, la concesión de la Opción y cualquier adquisición de Acciones de conformidad con el Plan no constituyen una relación de trabajo entre la persona a quien se otorga la Opción y la Compañía ya que la persona a quien se otorga la Opción está participando en el Plan sobre una base totalmente comercial. Derivado de lo anterior, la persona a quien se otorga la Opción expresamente reconoce que el Plan y los beneficios que pueden derivarle de la participación en el Plan no establecen ningún derecho entre la persona a quien se otorga la Opción y el Patrón y que no forman parte de las condiciones de trabajo y/o prestaciones otorgadas por el Patrón, y cualquier modificación del Plan o la terminación del mismo no constituirá un cambio o deterioro de los términos y condiciones de trabajo de la persona a quien se otorga la Opción.

Además, la persona a quien se otorga la Opción entiende que su participación en el Plan es resultado de una decisión unilateral y discrecional de la Compañía, por lo tanto la Compañía se reserva el derecho absoluto de modificar el Plan y/o discontinuar la participación de la persona a quien se otorga la Opción en el Plan en cualquier momento, sin responsabilidad alguna para con la persona a quien se otorga la Opción.

Finalmente, la persona a quien se otorga la Opción declara que no se reserva acción o derecho alguno para presentar una reclamación o demanda en contra de la Compañía por cualquier compensación o daño o perjuicio en relación con cualquier disposición del Plan o los beneficios derivados del Plan y, por lo tanto, la persona a quien se otorga la Opción otorga un amplio y total finiquito a la Compañía, sus Subsidiarias, sucursales, oficinas de representación, accionistas, directores, funcionarios, agentes y representantes con respecto a cualquier reclamación o demanda que pudiera surgir.

TAIWAN

Notifications

Exchange Control Information. Participant may acquire and remit foreign currency (including proceeds from the sale of Shares) up to US$5,000,000 per year without justification. If the transaction amount is TWD500,000 or more in a single transaction, Participant must submit a Foreign Exchange Transaction Form. If the transaction amount is US$500,000 or more in a single transaction, Participant must also provide supporting documentation to the satisfaction of the remitting bank.

UNITED KINGDOM

Terms and Conditions

Tax Withholding. This provision supplements Section 4.4 of the Agreement:

To the extent the Employer is required to withhold any income tax due in connection with the Option, if payment or withholding of the income tax is not made within ninety (90) days of the event giving rise to the income tax liability or such other period specified in Section 222(1)(c) of the U.K. Income Tax (Earnings and Pensions) Act 2003 (the “Due Date”), the amount of any uncollected income tax shall constitute a loan owed by Participant to the Employer, effective as of the Due Date. Participant agrees that the loan will bear interest at the then-current official rate of Her Majesty’s Revenue & Customs (“HMRC”), it shall be immediately due and repayable, and the Company or the Employer may recover it at any time thereafter by any of the means referred to in Section 4.4 of the Agreement.

Notwithstanding the foregoing, if Participant is a director or executive officer of the Company (within the meaning of Section 13(k) of the Exchange Act), he or she shall not be eligible for such a loan from the Company and, in this case, the amount of any uncollected income tax will constitute a benefit to Participant on which additional income tax and national insurance contributions (“NICs”) will be payable and Participant is responsible for reporting and paying any such income tax and NICs directly to HMRC under the self-assessment regime.

NIC Joint Election. As a condition of participation in the Plan, Participant agrees to accept any liability for secondary Class 1 National Insurance contributions which may be payable by the Company and/or the Employer in connection with the Option and any event giving rise to Tax-Related Items (“Employer NICs”). Without prejudice to the foregoing, Participant agrees to execute a joint election with the Company and/or the Employer, the form of such joint election being formally approved by HMRC (the “NIC Joint Election”), and any other required consent or elections, upon request of the Company and/or the Employer. Participant further agrees to execute such other joint elections as may be required between Participant and any successor to the Company and/or the Employer. Participant further agrees that the Company and/or the Employer may collect any Employer NICs from Participant by any of the means set forth in Section 4.4 of the Agreement.

If, after request of the Company and/or the Employer, Participant does not enter into the NIC Joint Election and the Company has determined that the Shares subject to the Option are or may be considered “readily-convertible assets” for U.K. tax purposes, Participant will not be entitled to exercise the Option or receive any benefits in connection with the Option unless and until the Participant enters into the NIC Joint Election. In this case, no Shares will be issued under the Plan or benefits received in connection with the Option unless and until Participant enters into the NIC Joint Election, without any liability to the Company and/or the Employer.

Section 431 Joint Election. As a further condition of participation in the Plan and the acquisition of Shares or other securities pursuant to or in connection with the Option, Participant agrees to enter into a joint election within Section 431 of the U.K. Income Tax (Earnings and Pensions) Act 2003 (the “Section 431 Joint Election”) attached to this Exhibit A. The effect of the Section 431 Joint Election is that the Shares acquired at exercise of the Option will not be treated as “restricted securities” for U.K. tax purposes.

If Participant does not enter into the Section 431 Joint Election prior to or concurrent with the Participant delivering the Exercise Agreement to the Company, as described in Section 4.1 of the Agreement, Participant will not be entitled to exercise the Option unless and until Participant enters into the Section

431 Joint Election and no Shares will be issued under the Plan, without any liability to the Company and/or the Employer. If Participant does not enter into the Section 431 Joint Election prior to or concurrent with the acquisition of any other securities in connection with the Option, Participant will not be entitled to acquire such securities unless and until Participant enters into the Section 431 Joint Election, without any liability to the Company and/or the Employer.

BLOOM ENERGY CORPORATION

2012 EQUITY INCENTIVE PLAN

Joint Election under s431 ITEPA 2003 for full or partial disapplication of Chapter 2 Income Tax (Earnings and Pensions) Act 2003

One Part Election

1. Between

the Employee	[insert name of employee]
whose National Insurance Number is	[insert employee’s national insurance number]
and
the U.K. Company	[insert name of U.K. employer]
(who is the Employee’s employer)
of U.K. Company Registration Number	[insert Company number of U.K. employer]

2. Purpose of Election

This joint election is made pursuant to section 431(1) Income Tax (Earnings and Pensions) Act 2003 (ITEPA) and applies where employment-related securities, which are restricted securities by reason of section 423 ITEPA, are acquired.

The effect of an election under section 431(1) is that, for the relevant income tax and national insurance contribution (“NIC”) purposes, the employment-related securities and their market value will be treated as if they were not restricted securities and that sections 425 to 430 ITEPA do not apply.

Should the value of the securities fall following the acquisition, it is possible that income tax/NIC that would have arisen because of any future chargeable event (in the absence of an election) would have been less than the income tax/NIC due by reason of this election. Should this be the case, there is no income tax/NIC relief available under Part 7 of ITEPA 2003; nor is it available if the securities acquired are subsequently transferred, forfeited or revert to the original owner.

3. Application

This joint election is made not later than 14 days after the date of acquisition of the securities by the Employee and applies to:

Number of securities	[insert number of shares subject to option]
Description of securities	shares of common stock
Name of issuer of securities	Bloom Energy Corporation.

to be acquired by the Employee after [insert date] under the terms of the Bloom Energy Corporation 2012 Equity Incentive Plan.

4. Extent of Application

This election disapplies all restrictions attaching to the securities.

5. Declaration

This election will become irrevocable upon the later of its signing or the acquisition (and each subsequent acquisition) of employment-related securities to which this election applies.

In signing this joint election, we agree to be bound by its terms as stated above.

	/    /
Signature (Employee)	Date
	/    /
Signature	Date
(for and on behalf of the U.K. Company)
Position in U.K. Company

EXHIBIT B TO

BLOOM ENERGY CORPORATION

2012 EQUITY INCENTIVE PLAN

STOCK OPTION AGREEMENT

TAX CONSEQUENCES FOR U.S. TAXPAYERS

Set forth below is a brief summary, as of the Effective Date of the Plan, of some of the U.S. Federal and California tax consequences of exercise of this Option and disposition of the Shares. THIS SUMMARY IS NECESSARILY INCOMPLETE, AND THE TAX LAWS AND REGULATIONS ARE SUBJECT TO CHANGE. PARTICIPANT SHOULD CONSULT A TAX ADVISOR BEFORE EXERCISING THE OPTION OR DISPOSING OF THE SHARES.

1. Exercise of ISO. If the Option qualifies as an ISO, there will be no regular U.S. Federal or California income tax liability upon the exercise of the Option, although the excess, if any, of the Fair Market Value of the Shares on the date of exercise over the Exercise Price will be treated as a tax preference item for federal alternative minimum tax purposes and may subject the Participant to the alternative minimum tax in the year of exercise.

2. Exercise of Nonqualified Stock Option. If the Option does not qualify as an ISO, there may be a regular U.S. Federal and California income tax liability upon the exercise of the Option. Participant will be treated as having received compensation income (taxable at ordinary income tax rates) equal to the excess, if any, of the Fair Market Value of the Shares on the date of exercise over the Exercise Price. If Participant is a current or former employee of the Company, the Company may be required to withhold from Participant’s compensation or collect from Participant and pay to the applicable taxing authorities an amount equal to a percentage of this compensation income at the time of exercise.

3. Disposition of Shares. The following tax consequences may apply upon disposition of the Shares.

(a) Incentive Stock Options. If the Shares are held for more than twelve (12) months after the date of purchase of the Shares pursuant to the exercise of an ISO and are disposed of more than two (2) years after the Date of Grant, any gain realized on disposition of the Shares will be treated as long term capital gain for U.S. Federal and California income tax purposes. If Vested Shares purchased under an ISO are disposed of within the applicable one (1) year or two (2) year period, any gain realized on such disposition will be treated as compensation income (taxable at ordinary income rates in the year of the disposition) to the extent of the excess, if any, of the Fair Market Value of the Shares on the date of exercise over the Exercise Price.

(b) Nonqualified Stock Options. If the Shares are held for more than twelve (12) months after the date of purchase of the Shares pursuant to the exercise of an NQSO, any gain realized on disposition of the Shares will be treated as long term capital gain.

(c) Withholding. The Company may be required to withhold from the Participant’s compensation or collect from the Participant and pay to the applicable taxing authorities an amount equal to a percentage of this compensation income.

THE ABOVE SUMMARY DOES NOT ADDRESS THE TAX CONSEQUENCES OF THE OPTION IF THE PARTICIPANT IS SUBJECT TO TAX IN A DIFFERENT STATE OR IN A DIFFERENT COUNTRY OR COUNTRIES OUTSIDE OF THE UNITED STATES, AND ANY SUCH PARTICIPANT SHOULD CONSULT HIS OR HER PERSONAL TAX ADVISOR BEFORE ACCEPTING THE OPTION OR OTHERWISE PARTICIPATING IN THE PLAN.

BLOOM ENERGY CORPORATION

2012 EQUITY INCENTIVE PLAN

RESTRICTED STOCK PURCHASE AGREEMENT

This Restricted Stock Purchase Agreement (the “Agreement”) is delivered to participant on             ,              (the “Offer Date”). This Agreement must be entered as of             ,          (the “Effective Date”) by and between Bloom Energy Corporation, a Delaware corporation (the “Company”) and the purchaser named below (the “Purchaser”) or the offer to purchase Shares pursuant to this Agreement shall terminate in accordance with Section 5 of the Company’s 2012 Equity Incentive Plan (the “Plan”). Capitalized terms not defined herein shall have the meaning ascribed to them in the Plan.

Purchaser:

Social Security Number

or Global Employee ID#

for Non-U.S. Purchasers:

Total Number of Shares:

Purchase Price Per Share:

Date of Grant:

Vesting Commencement Date:

1. PURCHASE OF SHARES.

1.1. Purchase of Shares. On the Effective Date and subject to the terms and conditions of this Agreement and the Plan, Purchaser hereby purchases from the Company, and the Company hereby sells to Purchaser, the Total Number of Shares set forth above (the “Shares”) of the Company’s Common Stock (the “Common Stock”) at the Purchase Price Per Share as set forth above (the “Purchase Price Per Share”) for a Total Purchase Price as set forth above (the “Purchase Price”). As used in this Agreement, the term “Shares” refers to the Shares purchased under this Agreement and includes all securities received (a) in replacement of the Shares, (b) as a result of stock dividends or stock splits with respect to the Shares, and (c) in replacement of the Shares in a merger, recapitalization, reorganization or similar corporate transaction.

1.2 Payment. Purchaser hereby delivers payment of the Purchase Price as follows (check and complete as appropriate):

¨ in services provided to the Company;

¨ in cash (or cash equivalent acceptable to the Company) in the amount of $                , receipt of which is acknowledged by the Company;

¨ by delivery of                  fully-paid, nonassessable and vested shares of the Common Stock of the Company owned by Purchaser for which the Company has received “full payment of the purchase price” within the meaning of SEC Rule 144, (if purchased by use of a promissory note, such note has been fully paid with respect to such vested shares), or obtained by Purchaser in the open public market, and owned free and clear of all liens, claims, encumbrances or security interests, valued at the current Fair Market Value of $                 per share.

2. DELIVERIES.

2.1. Deliveries by the Purchaser. Purchaser hereby delivers to the Company: (a) this completed and signed Agreement, (b) two (2) copies of a blank Stock Power and Assignment Separate from Stock Certificate in the form of Exhibit 1 attached hereto (the “Stock Powers”), both executed by Purchaser and Purchaser’s spouse, if any, (c) if Purchaser is married, a Consent of Spouse in the form of Exhibit 2 attached hereto (the “Spouse Consent”) executed by Purchaser’s spouse, and (d) the Purchase Price and payment or other provision for any applicable tax obligations in the form of a “check” a copy of which is attached hereto as Exhibit 3).

2.2. Deliveries by the Company. Upon its receipt of the Purchase Price, payment or other provision for any applicable tax obligations and all the documents to be executed and delivered by Purchaser to the Company, the Company will issue a duly executed stock certificate evidencing the Shares in the name of Purchaser, to be placed in escrow as provided in Section 11 until expiration or termination of the Company’s Right of First Refusal and Repurchase Option described in Sections 8 and 9.

3. REPRESENTATIONS AND WARRANTIES OF PURCHASER. Purchaser represents and warrants to the Company as follows.

3.1. Agrees to Terms of the Plan. Purchaser has received a copy of the Plan, has read and understands the terms of the Plan and this Agreement, and agrees to be bound by their terms and conditions. Purchaser acknowledges that there may be adverse tax consequences upon purchase or disposition of the Shares, and that Purchaser should consult a tax adviser prior to purchase or disposition.

3.2. Purchase for Own Account for Investment. Purchaser is purchasing the Shares for Purchaser’s own account for investment purposes only and not with a view to, or for sale in connection with, a distribution of the Shares within the meaning of the Securities Act. Purchaser has no present intention of selling or otherwise disposing of all or any portion of the Shares and no one other than Purchaser has any beneficial ownership of any of the Shares.

3.3. Access to Information. Purchaser has had access to all information regarding the Company and its present and prospective business, assets, liabilities and financial condition that Purchaser reasonably considers important in making the decision to purchase the Shares, and Purchaser has had ample opportunity to ask questions of the Company’s representatives concerning such matters and this investment.

3.4. Understanding of Risks. Purchaser is fully aware of: (a) the highly speculative nature of the investment in the Shares; (b) the financial hazards involved; (c) the lack of liquidity of the Shares and the restrictions on transferability of the Shares (e.g., that Purchaser

may not be able to sell or dispose of the Shares or use them as collateral for loans); (d) the qualifications and backgrounds of the management of the Company; and (e) the tax consequences of investment in the Shares. Purchaser is capable of evaluating the merits and risks of this investment, has the ability to protect Purchaser’s own interests in this transaction and is financially capable of bearing a total loss of this investment.

3.5. No General Solicitation. At no time was Purchaser presented with or solicited by any publicly issued or circulated newspaper, mail, radio, television or other form of general advertising or solicitation in connection with the offer, sale and purchase of the Shares.

4. COMPLIANCE WITH SECURITIES LAWS.

4.1. Compliance with U.S. Federal Securities Laws. Purchaser understands and acknowledges that the Shares have not been registered with the SEC under the Securities Act and that, notwithstanding any other provision in this Agreement to the contrary, the exercise of any rights to purchase any Shares is expressly conditioned upon compliance with the Securities Act and all applicable state securities laws. Purchaser agrees to cooperate with the Company to ensure compliance with such laws.

4.2. Compliance with California Securities Laws. THE PLAN AND THIS AGREEMENT ARE INTENDED TO COMPLY WITH SECTION 25102(o) OF THE CALIFORNIA CORPORATIONS CODE AND ANY RULES (INCLUDING COMMISSIONER RULES, IF APPLICABLE) OR REGULATIONS PROMULGATED THEREUNDER BY THE CALIFORNIA DEPARTMENT OF CORPORATIONS (THE “REGULATIONS”). ANY PROVISION OF THIS AGREEMENT THAT IS INCONSISTENT WITH SECTION 25102(o) SHALL, WITHOUT FURTHER ACT OR AMENDMENT BY THE COMPANY OR THE BOARD, BE REFORMED TO COMPLY WITH THE REQUIREMENTS OF SECTION 25102(o). THE SALE OF THE SECURITIES THAT ARE THE SUBJECT OF THIS AGREEMENT, IF NOT YET QUALIFIED WITH THE CALIFORNIA COMMISSIONER OF CORPORATIONS AND NOT EXEMPT FROM SUCH QUALIFICATION, IS SUBJECT TO SUCH QUALIFICATION, AND THE ISSUANCE OF SUCH SECURITIES, AND THE RECEIPT OF ANY PART OF THE CONSIDERATION THEREFOR PRIOR TO SUCH QUALIFICATION IS UNLAWFUL UNLESS THE SALE IS EXEMPT. THE RIGHTS OF THE PARTIES TO THIS AGREEMENT ARE EXPRESSLY CONDITIONED UPON SUCH QUALIFICATION BEING OBTAINED OR AN EXEMPTION BEING AVAILABLE.

5. RESTRICTED SECURITIES.

5.1. No Transfer Unless Registered or Exempt. Purchaser understands that Purchaser may not transfer any Shares unless such Shares are registered under the Securities Act or qualified under applicable state securities laws or unless, in the opinion of counsel to the Company, exemptions from such registration and qualification requirements are available. Purchaser understands that only the Company may file a registration statement with the SEC and that the Company is under no obligation to do so with respect to the Shares. Purchaser has also been advised that exemptions from registration and qualification may not be available or may not permit Purchaser to transfer all or any of the Shares in the amounts or at the times proposed by Purchaser.

5.2. SEC Rule 144. In addition, Purchaser has been advised that SEC Rule 144 promulgated under the Securities Act, which permits certain limited sales of unregistered securities, is not presently available with respect to the Shares and, in any event, requires that the Shares be held for a minimum of six (6) months, and in certain cases one (1) year, after they have been purchased and paid for (within the meaning of Rule 144). Purchaser understands that Rule 144 may indefinitely restrict transfer of the Shares so long as Purchaser remains an “affiliate” of the Company or if “current public information” about the Company (as defined in Rule 144) is not publicly available.

6. RESTRICTIONS ON TRANSFERS.

6.1. Disposition of Shares. Unvested Shares may not be sold or otherwise transferred by Purchaser without the Company’s prior written consent. Purchaser hereby agrees that Purchaser shall make no disposition of the Shares (other than as permitted by this Agreement) unless and until:

(a) Purchaser shall have notified the Company of the proposed disposition and provided a written summary of the terms and conditions of the proposed disposition;

(b) Purchaser shall have complied with all requirements of this Agreement applicable to the disposition of the Shares;

(c) Purchaser shall have provided the Company with written assurances, in form and substance satisfactory to counsel for the Company, that (a) the proposed disposition does not require registration of the Shares under the Securities Act or (b) all appropriate actions necessary for compliance with the registration requirements of the Securities Act or of any exemption from registration available under the Securities Act (including Rule 144) have been taken; and

(d) Purchaser shall have provided the Company with written assurances, in form and substance satisfactory to the Company, that the proposed disposition will not result in the contravention of any transfer restrictions applicable to the Shares pursuant to the provisions of the Regulations referred to in Section 4.2 hereof.

6.2. Restriction on Transfer. Purchaser shall not transfer, assign, grant a lien or security interest in, pledge, hypothecate, encumber or otherwise dispose of any of the Shares which are subject to the Company’s Right of First Refusal described below, except as permitted by this Agreement.

6.3. Transferee Obligations. Each person (other than the Company) to whom the Shares are transferred by means of one of the permitted transfers specified in this Agreement must, as a condition precedent to the validity of such transfer, acknowledge in writing to the Company that such person is bound by the provisions of this Agreement and that the transferred Shares are subject to (a) the Company’s Right of First Refusal granted hereunder (b) the Company’s Repurchase Option granted hereunder and (c) the market stand-off provisions of Section 7 hereof, to the same extent such Shares would be so subject if retained by the Purchaser.

7. MARKET STANDOFF AGREEMENT. Purchaser agrees in connection with any registration of the Company’s securities under the Securities Act or other public offering that, upon the request of the Company or the underwriters managing any registered public offering of the Company’s securities, Purchaser will not sell or otherwise dispose of any Shares without the prior written consent of the Company or such managing underwriters, as the case may be, for a period of time (not to exceed one hundred eighty (180) days) after the effective date of such registration requested by such managing underwriters and subject to all restrictions as the Company or the managing underwriters may specify for employee-stockholders generally. For purposes of this Section 7, the term “Company” shall include any wholly-owned subsidiary of the Company into which the Company merges or consolidates. 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 Shares until the end of such period. Purchaser further agrees to enter into any agreement reasonably required by the underwriters to implement the foregoing.

8. COMPANY’S RIGHT OF FIRST REFUSAL. Before any Vested Shares held by Purchaser or any transferee of such Vested Shares (either sometimes referred to herein as the “Holder”) may be sold or otherwise transferred (including, without limitation, a transfer by gift or operation of law), the Company and/or its assignee(s) will have a right of first refusal to purchase the Vested Shares to be sold or transferred (the “Offered Shares”) on the terms and conditions set forth in this Section (the “Right of First Refusal”).

8.1. Notice of Proposed Transfer. The Holder of the Offered Shares will deliver to the Company a written notice (the “Notice”) stating: (a) the Holder’s bona fide intention to sell or otherwise transfer the Offered Shares; (b) the name and address of each proposed purchaser or other transferee (the “Proposed Transferee”); (c) the number of Offered Shares to be transferred to each Proposed Transferee; (d) the bona fide cash price or other consideration for which the Holder proposes to transfer the Offered Shares (the “Offered Price”); and (e) that the Holder acknowledges this Notice is an offer to sell the Offered Shares to the Company and/or its assignee(s) pursuant to the Company’s Right of First Refusal at the Offered Price as provided for in this Agreement.

8.2. Exercise of Right of First Refusal. At any time within thirty (30) days after the date of the Notice, the Company and/or its assignee(s) may, by giving written notice to the Holder, elect to purchase all (or, with the consent of the Holder, less than all) the Offered Shares proposed to be transferred to any one or more of the Proposed Transferees named in the Notice, at the purchase price, determined as specified below.

8.3. Purchase Price. The purchase price for the Offered Shares purchased under this Section will be the Offered Price, provided that if the Offered Price consists of no legal consideration (as, for example, in the case of a transfer by gift) the purchase price will be the fair market value of the Offered Shares as determined in good faith by the Company’s Board of Directors. If the Offered Price includes consideration other than cash, then the value of the non-cash consideration, as determined in good faith by the Company’s Board of Directors, will conclusively be deemed to be the cash equivalent value of such non-cash consideration.

8.4. Payment. Payment of the purchase price for the Offered Shares will be payable, at the option of the Company and/or its assignee(s) (as applicable), by check or by cancellation of all or a portion of any outstanding purchase money indebtedness owed by the Holder to the Company (or to such assignee, in the case of a purchase of Offered Shares by such assignee) or by any combination thereof. The purchase price will be paid without interest within sixty (60) days after the Company’s receipt of the Notice, or, at the option of the Company and/or its assignee(s), in the manner and at the time(s) set forth in the Notice.

8.5. Holder’s Right to Transfer. If all of the Offered Shares proposed in the Notice to be transferred to a given Proposed Transferee are not purchased by the Company and/or its assignee(s) as provided in this Section, then the Holder may sell or otherwise transfer such Offered Shares to each Proposed Transferee at the Offered Price or at a higher price, provided that (a) such sale or other transfer is consummated within ninety (90) days after the date of the Notice, (b) any such sale or other transfer is effected in compliance with all applicable securities laws, and (c) each Proposed Transferee agrees in writing that the provisions of this Section will continue to apply to the Offered Shares in the hands of such Proposed Transferee. If the Offered Shares described in the Notice are not transferred to each Proposed Transferee within such ninety (90) day period, then a new Notice must be given to the Company pursuant to which the Company will again be offered the Right of First Refusal before any Shares held by the Holder may be sold or otherwise transferred.

8.6. Exempt Transfers. Notwithstanding anything to the contrary in this Section, the following transfers of Vested Shares will be exempt from the Right of First Refusal: (a) the transfer of any or all of the Vested Shares during Purchaser’s lifetime by gift or on Purchaser’s death by will or intestacy to Purchaser’s “Immediate Family” (as defined below) or to a trust for the benefit of Purchaser or Purchaser’s Immediate Family, provided that each transferee or other recipient agrees in a writing satisfactory to the Company that the provisions of this Section will continue to apply to the transferred Vested Shares in the hands of such transferee or other recipient; (b) any transfer of Vested Shares made pursuant to a statutory merger or statutory consolidation of the Company with or into another corporation or corporations (except that, subject to Section 8.7, unless the agreement of merger or consolidation expressly otherwise provides, the Right of First Refusal will continue to apply thereafter to such Vested Shares, in which case the surviving corporation of such merger or consolidation shall succeed to the rights of the Company under this Section); or (c) any transfer of Vested Shares pursuant to the winding up and dissolution of the Company. As used herein, the term “Immediate Family” will mean Purchaser’s spouse, the lineal descendant or antecedent, father, mother, brother or sister, child, adopted child, grandchild or adopted grandchild of the Purchaser or the Purchaser’s spouse or the spouse of any of the above, or Spousal Equivalent as defined herein. As used herein, a person is deemed to be a “Spousal Equivalent” provided that the following circumstances are true: (a) irrespective of whether or not the Participant and the Spousal Equivalent are the same sex, they are the sole spousal equivalent of the other for the last twelve (12) months, (b) they intend to remain so indefinitely, (c) neither are married to anyone else, (d) both are at least 18 years of age and mentally competent to consent to contract, (e) they are not related by blood to a degree of closeness that which would prohibit legal marriage in the state in which they legally reside, (f) they are jointly responsible for each other’s common welfare and financial obligations, and (g) they reside together in the same residence for the last twelve (12) months and intend to do so indefinitely.

8.7. Termination of Right of First Refusal. The Right of First Refusal will terminate as to all Shares (a) on the effective date of the first sale of Common Stock of the Company to the general public pursuant to a registration statement filed with and declared effective by the SEC under the Securities Act (other than a registration statement relating solely to the issuance of Common Stock pursuant to a business combination or an employee incentive or benefit plan) or (b) on any transfer or conversion of Shares made pursuant to a statutory merger or statutory consolidation of the Company with or into another corporation or entities if the common stock of the surviving corporation or any direct or indirect parent corporation thereof is registered under the Securities Exchange Act of 1934, as amended.

8.8. Encumbrances on Shares. Purchaser may not grant a lien or security interest in, or pledge, hypothecate or encumber, any Unvested Shares. Purchaser may grant a lien or security interest in, or pledge, hypothecate or encumber Vested Shares only if each party to whom such lien or security interest is granted, or to whom such pledge, hypothecation or other encumbrance is made, agrees in a writing satisfactory to the Company that: (a) such lien, security interest, pledge, hypothecation or encumbrance will not apply to such Vested Shares after they are acquired by the Company and/or its assignees under this Section; and (b) the provisions of this Section will continue to apply to such Vested Shares in the hands of such party and any transferee of such party.

9. COMPANY’S REPURCHASE OPTION FOR UNVESTED SHARES. The Company, or its assignee, shall have the option to repurchase all or a portion of the Purchaser’s Unvested Shares (as defined below) on the terms and conditions set forth in this Section (the “Repurchase Option”) if Purchaser is Terminated (as defined in the Plan) for any reason, or no reason, including without limitation, Purchaser’s death, Disability (as defined in the Plan), voluntary resignation or termination by the Company with or without Cause.

9.1. Termination and Termination Date. In case of any dispute as to whether Purchaser is Terminated, the Committee shall have discretion to determine whether Purchaser has been Terminated and the effective date of such Termination (the “Termination Date”).

9.2. Vested and Unvested Shares. Shares that are vested pursuant to the schedule set forth in this Section 9.2 are “Vested Shares.” Shares that are not vested pursuant to such schedule are “Unvested Shares.” On the Effective Date                  of the Shares will be Unvested Shares (the “Initial Unvested Shares”). Provided Participant continues to provide services to the Company or any Subsidiary or Parent of the Company at all times from the Vesting Commencement Date until                  (the “First Vesting Date”), then on the First Vesting Date                  (    %) of the Initial Unvested Shares will become Vested Shares, and on the same day of each succeeding calendar month thereafter (or if there is no such day in any month, then the last day of such calendar month), an additional                  (    ^th) of the Initial Unvested Shares shall vest until (a) all of the Shares are vested, (b) the Termination Date or (c) vesting otherwise terminates pursuant to this Agreement or the Plan. If application of the vesting schedule above causes a fractional share, such share shall be rounded down to the nearest whole share for each month except for the last month in such vesting period, at the end of which last month the full remainder of the Shares shall vest.

9.3. Exercise of Repurchase Option. At any time within ninety (90) days after the Purchaser’s Termination Date (or, in the case of securities issued upon purchase of Shares after the Purchaser’s Termination Date, within ninety (90) days after the date of such exercise), the Company, or its assignee, may elect to repurchase any or all the Purchaser’s Unvested Shares by giving Purchaser written notice of exercise of the Repurchase Option, specifying the number of Unvested Shares to be repurchased. Such Unvested Shares shall be repurchased at the lower of fair market value, as determined by the Board, or the Purchase Price Per Share, proportionately adjusted for any stock split or similar change in the capital structure of the Company as set forth in Section 2.2 of the Plan (the “Repurchase Price”). The Repurchase Price shall be payable, at the option of the Company or its assignee, by check or by cancellation of all or a portion of any outstanding purchase money indebtedness owed by Purchaser to the Company and/or such assignee, or by any combination thereof. The Repurchase Price shall be paid without interest within the term of the Repurchase Option as described in the first sentence of this Section 9.3.

9.4. Right of Termination Unaffected. Nothing in this Agreement shall be construed to limit or otherwise affect in any manner whatsoever the right or power of the Company (or any Parent or Subsidiary of the Company) to terminate Purchaser’s employment or other relationship with Company (or the Parent or Subsidiary of the Company) at any time, for any reason or no reason, with or without Cause.

10. RIGHTS AS A STOCKHOLDER. Subject to the terms and conditions of this Agreement, Purchaser will have all of the rights of a stockholder of the Company with respect to the Shares from and after the date that Shares are issued to Purchaser until such time as Purchaser disposes of the Shares or the Company and/or its assignee(s) exercise(s) the Right of First Refusal or the Repurchase Option. Upon an exercise of the Right of First Refusal or the Repurchase Option, Purchaser will have no further rights as a holder of the Shares so purchased upon such exercise, other than the right to receive payment for the Shares so purchased in accordance with the provisions of this Agreement, and Purchaser will promptly surrender the stock certificate(s) evidencing the Shares so purchased to the Company for transfer or cancellation.

11. ESCROW. As security for Purchaser’s faithful performance of this Agreement, Purchaser agrees, immediately upon receipt of the stock certificate(s) evidencing the Shares, to deliver such certificate(s), together with the Stock Powers executed by Purchaser and by Purchaser’s spouse, if any (with the date, name of transferee, stock certificate number and number of Shares left blank), to the Secretary of the Company or other designee of the Company (the “Escrow Holder”), who is hereby

appointed to hold such certificate(s) and Stock Powers in escrow and to take all such actions and to effectuate all such transfers and/or releases of such Shares as are in accordance with the terms of this Agreement. Purchaser and the Company agree that Escrow Holder will not be liable to any party to this Agreement (or to any other person or entity) for any actions or omissions unless Escrow Holder is grossly negligent or intentionally fraudulent in carrying out the duties of Escrow Holder under this Agreement. Escrow Holder may rely upon any letter, notice or other document executed with any signature purported to be genuine and may rely on the advice of counsel and obey any order of any court with respect to the transactions contemplated by this Agreement. The Shares will be released from escrow upon termination of both the Right of First Refusal and the Repurchase Option.

12. RESTRICTIVE LEGENDS AND STOP-TRANSFER ORDERS.

12.1. Legends. Purchaser understands and agrees that the Company will place the legends set forth below or similar legends on any stock certificate(s) evidencing the Shares, together with any other legends that may be required by state or U.S. Federal securities laws, the Company’s Certificate of Incorporation or Bylaws, any other agreement between Purchaser and the Company or any agreement between Purchaser and any third party:

THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR UNDER THE SECURITIES LAWS OF CERTAIN STATES. THESE SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS, PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM. INVESTORS SHOULD BE AWARE THAT THEY MAY BE REQUIRED TO BEAR THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE PERIOD OF TIME. THE ISSUER OF THESE SECURITIES MAY REQUIRE AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER TO THE EFFECT THAT ANY PROPOSED TRANSFER OR RESALE IS IN COMPLIANCE WITH THE SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES LAWS.

THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN RESTRICTIONS ON PUBLIC RESALE AND TRANSFER, INCLUDING THE RIGHT OF FIRST REFUSAL AND THE REPURCHASE OPTION HELD BY THE ISSUER AND/OR ITS ASSIGNEE(S), AS SET FORTH IN A RESTRICTED STOCK PURCHASE AGREEMENT BETWEEN THE ISSUER AND THE ORIGINAL HOLDER OF THESE SHARES, A COPY OF WHICH MAY BE OBTAINED AT THE PRINCIPAL OFFICE OF THE ISSUER. SUCH PUBLIC SALE AND TRANSFER RESTRICTIONS INCLUDING THE RIGHT OF FIRST REFUSAL AND THE REPURCHASE OPTION ARE BINDING ON TRANSFEREES OF THESE SHARES.

THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A 180 DAY MARKET STANDOFF RESTRICTION AS SET FORTH IN A CERTAIN AGREEMENT BETWEEN THE ISSUER AND THE ORIGINAL HOLDER OF THESE SHARES, A COPY OF WHICH MAY BE OBTAINED AT THE PRINCIPAL OFFICE OF THE ISSUER. AS A RESULT OF SUCH AGREEMENT, THESE SHARES MAY NOT BE TRADED PRIOR TO 180 DAYS AFTER THE EFFECTIVE DATE OF ANY PUBLIC OFFERING OF THE COMMON STOCK OF THE ISSUER HEREOF. SUCH RESTRICTION IS BINDING ON TRANSFEREES OF THESE SHARES.

12.2. Stop-Transfer Instructions. Purchaser agrees that, to ensure compliance with the restrictions imposed by this Agreement, the Company may issue appropriate “stop-transfer” instructions to its transfer agent, if any, and if the Company transfers its own securities, it may make appropriate notations to the same effect in its own records.

12.3. Refusal to Transfer. The Company will not be required (a) to transfer on its books any Shares that have been sold or otherwise transferred in violation of any of the provisions of this Agreement or (b) to treat as owner of such Shares, or to accord the right to vote or pay dividends to any purchaser or other transferee to whom such Shares have been so transferred.

13. TAX CONSEQUENCES. PURCHASER UNDERSTANDS THAT PURCHASER MAY SUFFER ADVERSE TAX CONSEQUENCES AS A RESULT OF PURCHASER’S PURCHASE OR DISPOSITION OF THE SHARES. PURCHASER REPRESENTS (a) THAT PURCHASER HAS CONSULTED WITH ANY TAX ADVISER THAT PURCHASER DEEMS ADVISABLE IN CONNECTION WITH THE PURCHASE OR DISPOSITION OF THE SHARES AND (b) THAT PURCHASER IS NOT RELYING ON THE COMPANY FOR ANY TAX ADVICE. Purchaser hereby acknowledges that Purchaser has been informed that, with respect to Unvested Shares, unless an election is filed by Purchaser with the Internal Revenue Service (and, if necessary, the proper state taxing authorities) within 30 days after the purchase of the Shares electing, pursuant to Section 83(b) of the Internal Revenue Code (and similar state tax provisions, if applicable), to be taxed currently on any difference between the Purchase Price of the Unvested Shares and their Fair Market Value on the date of purchase, there will be a recognition of taxable income to Purchaser, measured by the excess, if any, of the Fair Market Value of the Unvested Shares, at the time they cease to be Unvested Shares, over the Purchase Price for such Shares. Purchaser represents that Purchaser has consulted any tax advisers Purchaser deems advisable in connection with Purchaser’s purchase of the Shares and the filing of the election under Section 83(b) and similar tax provisions. A form of Election under Section 83(b) is attached hereto as Exhibit 4 for reference. BY PROVIDING THE FORM OF ELECTION, THE COMPANY DOES NOT THEREBY UNDERTAKE TO FILE THE ELECTION FOR PURCHASER, WHICH OBLIGATION TO FILE SHALL REMAIN SOLELY WITH PURCHASER.

14. COMPLIANCE WITH LAWS AND REGULATIONS. The issuance and transfer of the Shares will be subject to and conditioned upon compliance by the Company and Purchaser with all applicable U.S. Federal and state laws and regulations, all applicable foreign laws and regulations and with all applicable requirements of any stock exchange or automated quotation system on which the Company’s Common Stock may be listed or quoted at the time of such issuance or transfer.

15. SUCCESSORS AND ASSIGNS. The Company may assign any of its rights under this Agreement, including its rights to purchase Shares under the Right of First Refusal or the Repurchase Option. No other party to this Agreement, may assign, whether voluntarily or by operation of law, any of its rights and obligations under this Agreement, except with the prior written consent of the Company. This Agreement shall be binding upon and inure to the benefit of the successors and assigns of the Company. Subject to the restrictions on transfer herein set forth, this Agreement will be binding upon Purchaser and Purchaser’s heirs, executors, administrators, legal representatives, successors and assigns.

16. GOVERNING LAW. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to that body of laws pertaining to conflict of laws. For purposes of any action, lawsuit or other proceedings brought to enforce this Agreement, relating to it, or arising from it, the parties hereby submit to and consent to the sole and exclusive jurisdiction of the courts of Santa Clara County, California, or the federal courts for the United States for the Northern District of California, and no other courts, where this grant is made and/or to be performed. If any provision of this Agreement is determined by a court of law to be illegal or unenforceable, then such provision will be enforced to the maximum extent possible and the other provisions will remain fully effective and enforceable.

17. NOTICES. Any and all notices required or permitted to be given to a party pursuant to the provisions of this Agreement will be in writing and will be effective and deemed to provide such party sufficient notice under this Agreement on the earliest of the following: (a) at the time of personal delivery, if delivery is in person; (b) at the time of transmission by facsimile, addressed to the other party at its facsimile number specified herein (or hereafter modified by subsequent notice to the parties hereto), with confirmation of receipt made by both telephone and printed confirmation sheet verifying successful transmission of the facsimile; (c) one (1) business day after deposit with an express overnight courier for United States deliveries, or two (2) business days after such deposit for deliveries outside of the United States, with proof of delivery from the courier requested; or (d) three (3) business days after deposit in the United States mail by certified mail (return receipt requested) for United States deliveries. All notices for delivery outside the United States will be sent by facsimile or by express courier. All notices not delivered personally or by facsimile will be sent with postage and/or other charges prepaid and properly addressed to the party to be notified at the address or facsimile number set forth below the signature lines of this Agreement, 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. Notices to the Company will be marked “Attention: [●]”.

18. 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.

19. ENTIRE AGREEMENT. The Plan is incorporated herein by reference. The Plan and this Agreement, together with all Exhibits hereto, constitute the entire agreement and understanding of the parties with respect to the subject matter of this Agreement, and supersede all prior understandings and agreements, whether oral or written between or among the parties hereto with respect to the specific subject matter hereof.

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

21. 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.

22. FACSIMILE AND ELECTRONIC SIGNATURES. This Agreement may be executed and delivered by facsimile and upon such delivery the facsimile signature will be deemed to have the same effect as if the original signature had been delivered to the other party. Additionally, this Agreement may be executed and delivered electronically whether via the Company’s intranet or the Internet site of a third party or via email or such other means of electronic delivery specified by the Company.

IN WITNESS WHEREOF, the Company has caused this Restricted Stock Purchase Agreement to be executed by its duly authorized representative, and Purchaser has executed this Restricted Stock Purchase Agreement, as of the date first set forth above.

BLOOM ENERGY CORPORATION	PURCHASER
By:
	(Signature)

(Please print name and title)	(Please print name)
Address:	Address:
Fax No.:	Fax No.

List of Exhibits

Exhibit 1:	Stock Power and Assignment Separate from Stock Certificate
Exhibit 2:	Spouse Consent
Exhibit 3:	Copy of Purchaser’s Check
Exhibit 4:	Form of Election Pursuant to Section 83(b)

EXHIBIT 1

STOCK POWER AND ASSIGNMENT

SEPARATE FROM STOCK CERTIFICATE

STOCK POWER AND ASSIGNMENT

SEPARATE FROM STOCK CERTIFICATE

FOR VALUE RECEIVED and pursuant to that certain Restricted Stock Purchase Agreement No.                  dated as of             ,         , (the “Agreement”), the undersigned hereby sells, assigns and transfers unto                 ,                      shares of the Common Stock of Bloom Energy Corporation, a Delaware corporation (the “Company”), standing in the undersigned’s name on the books of the Company represented by Certificate No(s).                  delivered herewith, and does hereby irrevocably constitute and appoint the Secretary of the Company as the undersigned’s attorney-in-fact, with full power of substitution, to transfer said stock on the books of the Company. THIS ASSIGNMENT MAY ONLY BE USED AS AUTHORIZED BY THE AGREEMENT AND ANY EXHIBITS THERETO.

Dated:             ,         

PURCHASER

(Signature)

(Please Print Name)

(Spouse’s Signature, if any)

(Please Print Spouse’s Name)

Instructions to Purchaser: Please do not fill in any blanks other than the signature line. The purpose of this Stock Power and Assignment is to enable the Company to acquire the shares and to exercise its “Right of First Refusal” or “Repurchase Option” set forth in the Agreement without requiring additional signatures on the part of the Purchaser or Purchaser’s Spouse, if any.

EXHIBIT 2

SPOUSE CONSENT

SPOUSE CONSENT

The undersigned spouse of                      (the “Purchaser”) has read, understands, and hereby approves the Restricted Stock Purchase Agreement (the “Agreement”) between Purchaser and Bloom Energy Corporation (the “Company”). In consideration of the Company’s granting my spouse the right to purchase the Shares as set forth in the Agreement, the undersigned hereby agrees to be irrevocably bound by the Agreement and further agrees that any community property interest I may have in the Shares shall similarly be bound by the Agreement. The undersigned hereby appoints Purchaser as my attorney-in-fact with respect to any amendment or exercise of any rights under the Agreement.

Date:

Print Name of Purchaser’s Spouse

Signature of Purchaser’s Spouse

Address:

¨ Check this box, if Purchaser is not married.

EXHIBIT 3

COPY OF PURCHASER’S CHECK

EXHIBIT 4

FORM OF SECTION 83(B) ELECTION

ELECTION UNDER SECTION 83(b)

OF THE INTERNAL REVENUE CODE

The undersigned Taxpayer hereby elects, pursuant to Section 83(b) of the Internal Revenue Code of 1986, as amended, to include the excess, if any, of the fair market value of the property described below at the time of transfer over the amount paid for such property, as compensation for services in the calculation of regular gross income.

1.	TAXPAYER’S NAME:
	TAXPAYER’S ADDRESS:
	SOCIAL SECURITY NUMBER:
2.	The property with respect to which the election is made is described as follows:                  shares of Common Stock of Bloom Energy Corporation, a Delaware corporation (the “Company”) which were transferred pursuant to a Restricted Stock Purchase Agreement entered into by Taxpayer and the Company, which is Taxpayer’s employer or the corporation for whom the Taxpayer performs services.
3.	The date on which the shares were transferred pursuant to the purchase of the shares was             ,          and this election is made for calendar year                 .
4.	The shares received are subject to the following restrictions: The Company may repurchase all or a portion of the shares at the Taxpayer’s original purchase price under certain conditions at the time of Taxpayer’s termination of employment or services.
5.	The fair market value of the shares (without regard to restrictions other than restrictions which by their terms will never lapse) was $                 per share at the time of purchase.
6.	The amount paid for such shares by Taxpayer was $                 per share.
7.	The Taxpayer has submitted a copy of this statement to the Company.

THIS ELECTION MUST BE FILED WITH THE INTERNAL REVENUE SERVICE (“IRS”), AT THE OFFICE WHERE THE TAXPAYER FILES ANNUAL INCOME TAX RETURNS, WITHIN 30 DAYS AFTER THE DATE OF TRANSFER OF THE SHARES, AND MUST ALSO BE FILED WITH THE TAXPAYER’S INCOME TAX RETURNS FOR THE CALENDAR YEAR. THE ELECTION CANNOT BE REVOKED WITHOUT THE CONSENT OF THE IRS.

Dated:
	Taxpayer’s Signature

EX-10

Exhibit 10.6

NASA AMES RESEARCH CENTER

ENHANCED USE LEASE

Basic Lease Information

Date: December 5, 2011.

Landlord: NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, an Agency of the United States, Ames Research Center located at Moffett Field, California.

Tenant: BLOOM ENERGY CORPORATION, a Delaware corporation.

Premises (section 1.1): (a) The parcel of real property outlined in Exhibit A, containing approximately 73,939 square feet (more or less) of land area, including Building 543 (containing approximately 9,166 square feet (more or less) of building space (“Building 543”)) and all other improvements owned by Landlord thereon (collectively, the “Building 543 Premises”); and (b) all of the space in Building 154 (“Building 154”) outlined in Exhibit A-1, containing approximately 14,359 square feet (more or less) of building area (the “Building 154 Premises”). The Building 543 Premises and the Building 154 Premises are located at NASA Ames Research Center, Moffett Field, California. A site plan showing the locations of the Building 543 Premises and the Building 154 Premises is attached hereto as Exhibit A. Building 543 and Building 154 are individually referred to herein as a “Building” and are collectively referred to herein as the “Buildings.”

Property (section 1.1): The land, the buildings and other improvements known as NASA Ames Research Center, Moffett Field, California 94035-1000.

Term (section 2.1): Approximately three (3) years.

Commencement Date (section 2.1): December 16, 2011.

Expiration Date (section 2.1): December 31, 2014.

Monthly Base Rent (dollars per month) (section 3.1): $40,967.86; provided, however, during the month during which the TI Period (as defined in section 1.3) occurs, the monthly Base Rent for the Premises shall be reduced to $32,687.50 (because the monthly Base Rent for the Building 154 Premises shall be reduced to $1,986.33 during such TI Period).

Security Deposit (section 3.3): $40,500.00.

BE 543 154 EUL Final 120511		SAA2 – 402658
	-i-

Rent Payment Address (section 3.7): NASA Shared Service Center (NSSC)- FMD Accounts Receivable Attn: For the Accounts of Ames Research Center (Agreement #SAA2-402658) Bldg. 1111, C Road Stennis Space Center, MS 39529

Permitted Use of the Premises (section 4.1): Bloom Energy will use and occupy the Building 543 Premises solely for research and development, and testing, including as its research laboratory and to test its products. Bloom Energy will use and occupy the Building 154 Premises solely for office purposes; provided, however, Bloom Energy may use rooms 124, 125, 126, 128, 129 and 130 for minor assembly of wiring harnesses and piping.

Landlord’s Address (section 14.1):	NASA Ames Research Center Ms. Mejghan K. Haider, Mail Stop 204 – 2 Bldg. 204, Rm 215 P.O. Box 1 Moffett Field, CA 94035-0001
Tenant’s Address (section 14.1):	Bloom Energy Corporation 1252 Orleans Drive Sunnyvale, CA 94089 Attn: Mr. William H. Kurtz

Exhibit A – Site Plan; Plan Outlining the Building 543 Premises

Exhibit A-1 – Plans Outlining the Building 154 Premises

Exhibit B – Description of the TI Work

Exhibit C – Support Agreement

Exhibit D – List of Environmental Reports

The foregoing Basic Lease Information is incorporated in and made a part of the Lease to which it is attached. If there is any conflict between the Basic Lease Information and the Lease, the Basic Lease Information shall control.

Tenant:		Landlord:
BLOOM ENERGY CORPORATION, a Delaware corporation		NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, an Agency of the United States
By	/s/ William H. Kurtz	By	/s/ S. Pete Worden
	William H. Kurtz		S. Pete Worden
	Chief Financial Officer		Director, Ames Research Center

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TABLE OF CONTENTS

Article		Page
ARTICLE 1 PREMISES			2
1.1	LEASE OF PREMISES		2
1.2	TERMINATION oF EXISTING LEASES		2
1.3	TENANT IMPROVEMENT WORK		3
1.4	UA LEASE		3
1.5	COMMON AREAS		4
ARTICLE 2 TERM			4
2.1	TERM oF LEASE		4
2.2	POSSESSION		4
2.3	HOLDING OVER		5
ARTICLE 3 RENT			5
3.1	MONTHLY BASE RENT AND ADDITIONAL RENT		5
3.2	PROCEDURES		6
3.3	INITIAL PAYMENT; SECURITY DEPOSIT		6
3.4	LATE PAYMENT		7
3.5	TAXES PAYABLE BY TENANT		7
3.6	CERTAIN DEFINITIONS		8
3.7	RENT PAYMENT ADDRESS		8
ARTICLE 4 USE OF THE PREMISES			8
4.1	PERMITTED USE		8
4.2	ENVIRONMENTAL DEFINITIONS		9
4.3	ENVIRONMENTAL REQUIREMENTS		9
4.4	COMPLIANCE WITH LAW		10
4.5	RULES AND REGULATIONS		11
4.6	ENTRY BY LANDLORD		11
ARTICLE 5 UTILITIES AND DEMAND SERVICES			12
5.1	LANDLORD’S RESPONSIBILITIES		12
5.2	TENANT’S RESPONSIBILITIES		13
ARTICLE 6 MAINTENANCE AND REPAIRS			13
6.1	OBLIGATIONS OF LANDLORD		13
6.2	OBLIGATIONS OF TENANT		14
ARTICLE 7 ALTERATION OF THE PREMISES			14
7.1	NO ALTERATIONS BY TENANT		14
7.2	TENANT’S PROPERTY		15
ARTICLE 8 INDEMNIFICATION AND INSURANCE			16
8.1	DAMAGE OR INJURY		16
8.2	INSURANCE COVERAGES AND AMOUNTS		16
8.3	INSURANCE REQUIREMENTS		17
8.4	SUBROGATION		18
ARTICLE 9 ASSIGNMENT OR SUBLEASE			19
9.1	PROHIBITION		19
9.2	LANDLORD’S CONSENT OR TERMINATION		20

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TABLE OF CONTENTS

Article		Page
9.3	COMPLETION		20
9.4	TENANT NOT RELEASED		20
ARTICLE 10 EVENTS OF DEFAULT AND REMEDIES			21
10.1	DEFAULT BY TENANT		21
10.2	TERMINATION		22
10.3	CONTINUATION		22
10.4	REMEDIES CUMULATIVE		22
10.5	TENANT’S PRIMARY DUTY		22
10.6	ABANDONED PROPERTY		22
10.7	LANDLORD DEFAULT		23
10.8	LANDLORD’S RIGHT TO TERMINATE		23
ARTICLE 11 DAMAGE OR DESTRUCTION			23
11.1	RESTORATION		23
11.2	TERMINATION OF LEASE		24
ARTICLE 12 EMINENT DOMAIN			24
12.1	CONDEMNATION		24
12.2	AWARD		25
12.3	TEMPORARY USE		25
12.4	DEFINITION OF TAKING		25
ARTICLE 13 SUBORDINATION AND SALE			25
13.1	SUBORDINATION		25
13.2	SALE OF THE PROPERTY		26
13.3	ESTOPPEL CERTIFICATE		26
ARTICLE 14 NOTICES			26
14.1	METHOD		26
14.2	CLOSE CALLS AND MISHAPS		27
ARTICLE 15 MISCELLANEOUS			27
15.1	GENERAL		27
15.2	NO WAIVER		28
15.3	EXHIBITS		28
15.4	BROKER(S)		28
15.5	WAIVERS OF JURY TRIAL AND CERTAIN DAMAGES		28
15.6	ENTIRE AGREEMENT		28
15.7	GOVERNING LAW		28
15.8	CONFIDENTIALITY		29
15.9	ANTI – DEFICIENCY ACT		29

Exhibit A – Site Plan; Plan Outlining the Building 543 Premises

Exhibit A-1 – Plans Outlining the Building 154 Premises

Exhibit B – Description of the TI Work

Exhibit C – Support Agreement

Exhibit D – List of Environmental Reports

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NASA AMES RESEARCH CENTER

ENHANCED USE LEASE

This NASA Ames Research Center Enhanced Use Lease of (the “Lease”) is made as of the date specified in the Basic Lease Information, by and between the NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, an Agency of the United States (“Landlord”), Ames Research Center located at Moffett Field, California, and the tenant specified in the Basic Lease Information (“Tenant”). This Lease is made under the authority of section 315 of the National Aeronautics and Space Act, as amended (51 U.S.C. §20145), with reference to the following facts:

R E C I T A L S

A. Landlord is committed to using its resources to the greatest public benefit and thus will take advantage of its unique research capabilities, stock of land, buildings and existing partnerships with state and local government, academia, industry and private organizations to create a center in which Landlord, its collaborative partners and the public can jointly work to advance: astrobiology; biotechnology; robotics; lunar exploration; technologies for NASA’s space exploration system (SLS and MPCV); the search for habitable planets; supercomputing; intelligent/adaptive systems; advanced thermal protection; airborne astronomy; science and technology education; the dissemination of information concerning Landlord’s activities; and the commercial use of Landlord’s basic research by the private sector.

B. In furtherance of Landlord’s missions, this Lease furthers the development of a collaborative research environment on the Property (as defined in section 1.1) in which Landlord, industry and academia are co-located to further foster research related to the activities described in Recital A above, as well as other research activities in furtherance of the goals and missions of both Landlord and Tenant. Landlord’s signatory hereby certifies that this Lease will not have a negative impact on NASA’s mission.

C. Landlord and Tenant previously entered into the following leases (collectively, the “Existing Leases”): (a) NASA Ames Research Center Enhanced Use Lease, dated as of May 14, 2004 (SAA2-401733), as amended (collectively, the “Building 543 Lease”); (b) NASA Ames Research Center Enhanced Use Lease of Unimproved Real Property, dated as of June 4, 2008 (SAA2-402120), as amended (collectively, the “Land Lease”); and (c) NASA Ames Research Center Enhanced Use Lease of Historic Property, dated as of August 5, 2009 (SAA2-402379), as amended (collectively, the “Building 19 Lease”). Tenant desires to relocate its personnel from the premises demised under the Building 19 Lease and from the temporary office trailer installed by Tenant on the property demised under the Land Lease to the Building 154 Premises (which is near the Building 543 Premises), thus more conveniently locating Tenant’s personnel and facilities leased at the Property.

D. In addition the parties desire to replace the Existing Leases with this Lease. The Building 543 Lease and the Land Lease will be terminated concurrently with the Commencement Date (as defined in section 2.1). The Building 19 Lease will be terminated on the last day of the TI Period (as defined in section 1.3).

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E. Accordingly, Landlord has agreed to lease the Premises (as defined in section 1.1) on the terms and conditions set forth in this Lease and for the purposes provided herein to facilitate the development and long-term operation of a collaborative research environment on the Property and to provide support to various activities in support of this goal. All collaborative efforts between Landlord and Tenant will be documented in separate agreements. The parties acknowledge and agree that the Premises are not being provided to Tenant as government furnished property under any contract or subcontract, and Tenant agrees that it shall not charge or submit for payment any rent (as defined in section 3.1 (d)) as a direct or indirect cost or charge under any such contract or subcontract.

NOW, THEREFORE, the parties agree as follows.

ARTICLE 1

Premises

1.1 Lease of Premises. Landlord hereby leases to Tenant, and Tenant hereby leases from Landlord, for the Term (as defined in section 2.1 and subject to the covenants hereinafter set forth, the Building 543 Premises and the Building 154 Premises, all as specified in the Basic Lease Information (collectively, the “Premises”) located at NASA Ames Research Center, Moffett Field, California 94035-1000 (the “Property”). The Premises are outlined on the plans attached hereto as Exhibits A and A-1. Landlord and Tenant agree that, for purposes of this Lease, the Premises and the Buildings each contains the number of square feet of land area and building area specified in the Basic Lease Information. The parties acknowledge and agree that Tenant installed certain improvements, fixtures and equipment on portions of the Building 543 Premises pursuant to the Building 543 Lease. Landlord agrees that Tenant may continue to maintain and use such improvements, fixtures and equipment pursuant to this Lease. Notwithstanding the foregoing, Tenant shall not use, and shall not allow its employees, contractors, licensees, agents or invitees to use, any portion of the Building 543 Premises within a seventy-five (75) foot radius of Tenant’s existing hydrogen tank area as more particularly shown and designated as the “Restricted Area” on attached Exhibit A. Without limiting the foregoing, Tenant agrees that no motor vehicle parking, employee recreational areas (such as picnic tables or lunch areas) or other improvements or structures shall be allowed within the Restricted Area. Tenant shall not install or place any improvements, fixtures or personal property within the Restricted Area. Notwithstanding the foregoing provisions regarding the Restricted Area, Tenant may install a portion of its test pad improvements within the Restricted Area so long as such improvements do not include any utility connections and Landlord approves the same.

1.2 Termination of Existing Leases. Landlord and Tenant hereby agree that the Building 543 Lease and the Land Lease shall automatically terminate as of the Commencement Date, and that the Building 19 Lease shall automatically terminate as of the last day of the TI Period. Concurrently with executing this Lease, the parties shall execute agreements evidencing the foregoing terminations in to fulfill Landlord’s real property records and reporting requirements.

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1.3 Tenant Improvement Work. Tenant desires to perform certain tenant improvement work in Building 154, which work is generally described on attached Exhibit B (the “TI Work”). Tenant shall: (a) commence the TI Work on the Commencement Date; (b) diligently prosecute the same to completion; (c) comply with all Applicable Laws (as defined in section 4.4); (d) obtain all necessary permits and approvals (including as set forth in section 7.1); and (e) use its reasonable efforts to complete the TI Work as quickly as possible thereafter, which is expected to occur during the TI Period. Subject to compliance with the terms and conditions of this Lease (including the obligation to obtain permits, if applicable), Landlord hereby consents to the Tenant performing the TI Work. During the TI Period, Landlord has agreed to reduce the monthly Base Rent applicable to the Building 154 Premises as set forth herein. If the TI Work is not completed during the TI Period, Tenant may continue to perform the TI Work thereafter; provided, however, Tenant shall pay the full monthly Base Rent with respect to the Building 154 Premises, and the Building 19 Lease and the Land Lease shall nevertheless terminate effective on the last day of the TI Period. As used in this Lease, the phrase “TI Period” means the period of time beginning on the Commencement Date and ending on the earlier of: (a) the date on which NASA’s Chief Building Official issues to Tenant a final certificate of occupancy for the Building 154 Premises following completion of the TI Work; or (b) fifteen (15) days following the Commencement Date. In addition to the TI Work, on or before the last day of the TI Period, Tenant shall remove from the Property the portable office trailer that Tenant installed on the parcel of land demised under the Land Lease.

1.4 UA Lease.

(a) Tenant understands that the United States Government (“Government”) has leased the real property on which the Buildings are located, together with all of the improvements thereon, to University Associates-Silicon Valley LLC, a Delaware limited liability company (“UA”), pursuant to that certain Enhanced Use Lease dated as of December 12, 2008, as amended (such amended lease, as it may be further amended or modified during the Term, is referred to herein as the “UA Lease”). Tenant’s lease of the Premises is subject and subordinate to all of the terms and conditions of the UA Lease. Tenant acknowledges that the UA Lease is available at Landlord’s “electronic reading room”:

http://www.nasa.gov/centers/ames/business/foia/elec.html.

(b) Pursuant to the UA Lease, Landlord retains the beneficial use and occupancy of the premises demised to UA (the “UA Premises”) until such time as UA requires possession of all or any portion of the UA Premises, in which event Landlord is obligated to deliver possession thereof free and clear of all existing tenancies and occupancies. Accordingly, and in addition to Landlord’s other rights to terminate set forth in this Lease, Tenant agrees that this Lease shall terminate with respect to, and Tenant shall vacate and surrender possession of, all or any portion of the Premises, within one hundred twenty (120) days after Landlord delivers to Tenant written notice (a “UA Termination Notice”) if UA requires possession of the portion of the UA Premises on which the applicable portion(s) of the Premises is located prior to the Expiration Date. In addition, if Landlord’s UA Termination Notice applies to less than all of the Premises, Tenant will have the right to terminate this Lease as to all or any other portion of the Premises as Tenant shall designate by delivering to Landlord written notice exercising such termination right within thirty (30) days of the date of such UA Termination Notice, which termination shall be effective as of the date set specified in Tenant’s written notice to Landlord exercising such termination right.

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1.5 Common Areas. During the Term, Tenant shall have the nonexclusive right, in common with other tenants and users of the Property, to use only for their intended purposes the common areas (such as driveways, sidewalks, parking areas, loading areas and access roads) in the Property. Landlord shall have the right from time to time to change the size, location, configuration, character or use of any such common areas, construct additional improvements or facilities in any such common areas, or close any such common areas so long as Tenant’s obligations under this Lease are not materially increased nor its rights materially decreased. Tenant shall not interfere with the rights of Landlord and other tenants or users of the Property to use such common areas.

ARTICLE 2

Term

2.1 Term of Lease. The term of this Lease shall be the term specified in the Basic Lease Information (the “Term”), which shall commence on the commencement date specified in the Basic Lease Information (the “Commencement Date”) and, unless sooner terminated as hereinafter provided, shall end on the expiration date specified in the Basic Lease Information (the “Expiration Date”). If Landlord, for any reason whatsoever, does not deliver possession of the Premises to Tenant on the Commencement Date, this Lease shall not be void or voidable and Landlord shall not be liable to Tenant for any loss or damage resulting therefrom, but, in such event, the Commencement Date shall be postponed until the date on which Landlord delivers possession of the Premises to Tenant, but the Expiration Date shall not be extended. Tenant acknowledges that Tenant has inspected the Premises, the Buildings and the Property or has had the Premises, the Buildings and the Property inspected by professional consultants retained by Tenant, Tenant is familiar with the condition of the Premises, the Buildings and the Property, the Premises, the Buildings and the Property are suitable for Tenant’s purposes, and the condition of the Premises, the Buildings and the Property is acceptable to Tenant. Tenant accepts the Premises in its “AS IS” condition, with all faults, without any covenant, representation or warranty of any kind or nature whatsoever, express or implied (including with respect to the suitability of the Premises or any utility systems serving the Premises for Tenant’s purposes), and Tenant is relying solely on its own investigation of the Premises, the Buildings and the Property. Tenant agrees that Landlord has made no representations or warranties concerning such conditions, state of repair and use, nor any agreement or promise to alter, improve, adapt, repair or keep in repair the same, or any portion thereof. Landlord shall have no obligation to construct or install any improvements in the Premises, the Buildings or the Property or to remodel, renovate, recondition, alter or improve the Premises, the Buildings or the Property in any manner.

2.2 Possession. Landlord shall deliver possession of the Premises to Tenant on the Commencement Date, and Tenant shall accept such delivery of the Premises. Notwithstanding section 2.1 and Tenant’s acceptance of the Premises, Tenant shall not use or occupy the Premises until a certificate of occupancy and all other necessary approvals have been issued by Landlord and all other applicable governmental agencies. If a certificate of occupancy and all other

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necessary approvals have been issued by Landlord and all other applicable governmental agencies, and the Premises are ready for occupancy by Tenant prior to the Commencement Date, Tenant shall have the right to take early occupancy of the Premises prior to the Commencement Date and the Term shall commence on such date of early occupancy by Tenant, in which event the Commencement Date shall be advanced to such date of early occupancy, but the Expiration Date shall not be advanced. Tenant shall give Landlord written notice of Tenant’s determination to take early occupancy of the Premises at least ten (10) days in advance, which notice shall specify the date of such early occupancy.

2.3 Holding Over. If, with consent by Landlord, Tenant holds possession of the Premises after expiration of the Term, Tenant shall become a tenant from month to month under this Lease, but the Base Rent during such month to month tenancy shall be equal to one hundred fifty percent (150%) of the Base Rent in effect at the expiration of the Term. Landlord and Tenant each shall have the right to terminate such month to month tenancy by giving at least thirty (30) days’ written notice of termination to the other at any time, in which event such tenancy shall terminate on the termination date set forth in such termination notice.

ARTICLE 3

Rent

3.1 Monthly Base Rent and Additional Rent. Tenant shall pay to Landlord the following amounts as rent for the Premises:

(a) During the Term, Tenant shall pay to Landlord, as monthly base rent, the amount of monthly Base Rent specified in the Basic Lease Information.

(b) During each Government fiscal year (or part thereof) during the Term, Tenant shall pay to Landlord, as additional rent and in accordance with this Lease and the terms and conditions of the annual Support Agreement, the current form of which is attached hereto as Exhibit C (each, a “Support Agreement”), the costs of Demand Services (as defined in section 3.6(a)) provided to Tenant by Landlord in such year.

(c) The amount of monthly Base Rent shall be increased on January 1, 2013 and on each January 1 thereafter throughout the Term (each, a “CPI Adjustment Date”) by the percentage increase in the CPI (as defined below) during the twelve (12) month period immediately preceding each CPI Adjustment Date (each such twelve (12) month period being referred to herein as a “Lease Year”), which increase shall be determined as follows. The base for computing each increase in monthly Base Rent shall be the CPI published most immediately before the first day of the applicable Lease Year (a “Beginning Index”), and the CPI published most immediately before the last day of the applicable Lease Year (an “Adjustment Index”) shall be used in determining the amount of the adjustment. If the Adjustment Index has increased over the Beginning Index since the last CPI Adjustment Date, then the monthly Base Rent for the next Lease Year shall be increased by multiplying the amount of the last payment of monthly Base Rent by a fraction, the numerator of which is the Adjustment Index and the denominator of which is the Beginning Index. As used in this Lease, the term “CPI” means the United States Department of Labor, Bureau of Labor Statistics, Consumer Price Index, All Urban Consumers, All Items, San Francisco – Oakland – San Jose, California (1982 – 84 equals 100), or if such

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index is no longer published, a successor or substitute index designated by Landlord, published by a governmental agency reflecting changes in consumer prices in the San Francisco Bay Area that is most nearly comparable to the CPI. If the CPI is changed so that the base year differs from that in effect when the Initial Term commences, the CPI shall be converted in accordance with the conversion factor published by the United States Department of Labor, Bureau of Labor Statistics. If the CPI is discontinued or revised during the Term, such other government index or computation with which it is replaced shall be used in order to obtain substantially the same result as would have been obtained if the CPI had not been discontinued or revised.

(d) Throughout the Term, Tenant shall pay, as additional rent, all other amounts of money and charges required to be paid by Tenant under this Lease, whether or not such amounts of money or charges are designated “additional rent.” As used in this Lease, “rent” shall mean and include all Base Rent, all additional rent and all other amounts of money and charges payable by Tenant in accordance with this Lease.

3.2 Procedures.

(a) Immediately following the execution of this Lease, Landlord and Tenant shall execute the initial Support Agreement. The current amounts of monthly Base Rent and the current costs of Demand Services are set forth on the initial Support Agreement. Tenant understands that costs of Demand Services may increase in the future, and Tenant agrees to pay the costs of Demand Services as determined by Landlord from time to time.

(b) Cost estimates for Demand Services, and reimbursement thereof, shall be consistent with Applicable Laws and Landlord’s policy, including the requirement for payment in advance of the rate at which Landlord anticipates incurring costs. Landlord will review costs for Demand Services periodically to ensure that the rates are based on actual costs to Landlord.

(c) If the Term commences or ends on a day other than the first or last day of the Government’s fiscal year, respectively, the amounts payable by Tenant under section 3.1(b) applicable to the fiscal year in which such term commences or ends shall be prorated according to the ratio which the number of days during the Term in such fiscal year bears to three hundred sixty—five (365). Termination of this Lease shall not affect the obligations of Landlord and Tenant pursuant to section 3.1(b) to be performed after such termination.

3.3 Initial Payment; Security Deposit. Upon signing this Lease, Tenant shall pay to Landlord (a) an amount equal to the Base Rent and Demand Services (if any) for the partial month (if any) during which the Commencement Date occurs and the first month of the Term, and (b) the amount of the security deposit specified in the Basic Lease Information (the “Security Deposit”). The Security Deposit shall be held by Landlord as security for the performance by Tenant of all of the covenants of this Lease to be performed by Tenant, and Tenant shall not be entitled to interest thereon (or on any amount paid to Landlord in advance for Demand Services). If Tenant fails to perform any of the covenants of this Lease to be performed by Tenant, then Landlord shall have the right, but no obligation, to apply the Security Deposit, or so much thereof as may be necessary, to cure any such failure by Tenant. If Landlord applies the Security Deposit or any part thereof to cure any such failure by Tenant, then Tenant shall immediately pay to Landlord the sum necessary to restore the Security Deposit to the full amount

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required by this section 3.3. Landlord shall return any remaining portion of the Security Deposit to Tenant within thirty (30) days after termination of this Lease. Upon termination of the original Landlord’s or any successor owner’s interest in the Premises, the original Landlord or such successor owner shall be released from further liability with respect to the Security Deposit upon the original Landlord’s or such successor owner’s transferring the Security Deposit to the new owner.

3.4 Late Payment. Tenant acknowledges that the late payment by Tenant of any monthly installment of Base Rent or additional rent will cause Landlord to incur costs and expenses, the exact amount of which is extremely difficult and impractical to fix. Such costs and expenses will include administration and collection costs and processing and accounting expenses. Therefore, if any monthly installment of Base Rent or additional rent is not received by Landlord within ten (10) days after such installment is due, Tenant shall immediately pay to Landlord a late charge equal to five percent (5%) of such delinquent installment. Landlord and Tenant agree that such late charge represents a reasonable estimate of such costs and expenses and is fair reimbursement to Landlord. In no event shall such late charge be deemed to grant to Tenant a grace period or extension of time within which to pay any rent or prevent Landlord from exercising any right or enforcing any remedy available to Landlord upon Tenant’s failure to pay each installment of rent due under this Lease when due, including the right to terminate this Lease and recover all damages from Tenant. All amounts that become payable by Tenant to Landlord under this Lease shall bear interest from the date due until paid. The interest rate per annum shall be the interest rate established pursuant to 31 U.S.C. §3717 and 14 C.F.R. §1261.412 (or any successor rate schedule set under Applicable Laws) which are applicable to the period in which the amount becomes due. Amounts shall be due upon the earliest one of (i) the date fixed pursuant to this Lease, or (ii) the date of the first written demand for payment, consistent with this Lease, including demand upon default.

3.5 Taxes Payable by Tenant. Tenant shall pay, to the applicable taxing authority upon written demand and prior to delinquency, all taxes, assessments, excises, levies, fees and charges, including all payments related to the cost of providing facilities or services, of every kind and description, general or special, ordinary or extraordinary, foreseen or unforeseen, secured or unsecured, whether or not now customary or within the contemplation of Landlord and Tenant, that are levied, assessed, charged, confirmed or imposed by any public or government authority upon or against, or measured by, or reasonably attributable to, or otherwise with respect to (a) the Premises or any part thereof or any personal property used in connection with the Premises, (b) the cost or value of Tenant’s furniture, fixtures, equipment and other personal property located in the Premises or the cost or value of any improvements made in or to the Premises by or for Tenant, regardless of whether title to such improvements is vested in Tenant or Landlord, (c) any rent payable under this Lease, including any gross income tax or excise tax levied by any public or government authority with respect to the receipt of any such rent, (d) the possession, leasing, operation, management, maintenance, alteration, repair, use or occupancy by Tenant of the Premises, or (e) this transaction or any document to which Tenant is a party creating or transferring an interest or an estate in the Premises. All taxes, assessments, excises, levies, fees and charges payable by Tenant under this section 3.5 shall be deemed to be, and shall be paid as, additional rent.

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3.6 Certain Definitions. As used in this Lease, certain words are defined as follows:

(a) “Demand Services” shall mean all Utilities (as defined in section 3.6(b)) consumed by Tenant that Landlord will provide as set forth in section 5.1, and any other materials or services furnished by Landlord at the request of Tenant on or about the Premises. Demand services shall exclude any telecommunication and date communication services and janitorial services, which will be separately contracted for by Tenant pursuant to this Lease.

(b) “Utilities” shall mean all natural gas, electricity and other power services, water service, sewer service, and any other utilities, furnished by Landlord directly or indirectly to, for the benefit of, or used by Tenant on or about the Premises.

3.7 Rent Payment Address. Tenant shall pay all monthly Base Rent and costs of Demand Services (if any) under section 3.1 to “NASA Ames Research Center,” in advance, on or before the first day of each and every calendar month during the Term. Each payment shall reference the number of this Lease. Tenant shall pay all rent to Landlord without notice, demand, deduction or offset, in lawful money of the United States of America, at the address for the payment of rent specified in the Basic Lease Information, or to such other person or at such other place as Landlord may from time to time designate in writing.

ARTICLE 4

Use of the Premises

4.1 Permitted Use. Tenant shall use the Premises only for the Permitted Use of the Premises specified in the Basic Lease Information and for lawful purposes incidental thereto, and no other purpose whatsoever. Tenant shall not do or permit to be done in. on or about the Premises, nor bring or keep or permit to be brought or kept therein, anything which is prohibited by or will in any way conflict with any Applicable Laws, or which is prohibited by any insurance policy applicable to the Premises, or will in any way increase the existing rate of, or disallow any fire rating or sprinkler credit, or cause a cancellation of, or affect any insurance for the Premises. Tenant shall not do or permit anything to be done in or about the Premises which will in any way obstruct or interfere with the rights of Landlord or other tenants or users of the Property, or injure or annoy them. Tenant shall not use or allow the Premises to be used for any improper, immoral unlawful or objectionable activity, nor shall Tenant cause, maintain or permit any nuisance in, on or about the Premises or commit or suffer to be committed any waste in, on or about the Premises. Except for equipment and fixtures that Tenant has constructed on the Building 543 Premises pursuant to permits previously issued by Landlord, Tenant shall not store any materials equipment or vehicles outside the Premises and agrees that no washing of any type (including washing vehicles) shall take place in or outside the Premises. Tenant shall not receive, store or otherwise handle any product or material that is explosive or highly inflammable, except in accordance with Applicable Laws. Tenant shall not install any signs on the Premises without the prior written consent of Landlord. Tenant shall, at Tenant’s expense, remove all such signs prior to or upon termination of this Lease, repair any damage caused by the installation or removal of such signs, and restore the Premises to the condition that existed before installation of such signs.

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4.2 Environmental Definitions. As used in this Lease, “Hazardous Material” shall mean any substance that is (a) defined under any Environmental Law (as defined below) as a hazardous substance, hazardous waste, hazardous material, pollutant or contaminant, (b) a petroleum hydrocarbon, including crude oil or any fraction or mixture thereof, (c) hazardous, toxic, corrosive, flammable, explosive, infectious, radioactive, carcinogenic or a reproductive toxicant, or (d) otherwise regulated pursuant to any Environmental Law. As used in this Lease, “Environmental Law” shall mean all Federal, state and local laws, statutes, ordinances, regulations, rules, judicial and administrative orders and decrees, permits, licenses, approvals, authorizations and similar requirements of all Federal, state and local governmental agencies (including Landlord) or other governmental authorities pertaining to the protection of human health and safety or the environment, now existing or later adopted during the Term. As used in this Lease, “Permitted Activities” shall mean the lawful activities of Tenant that are part of the ordinary course of Tenant’s business in accordance with the Permitted Use specified in the Basic Lease Information. As used in this Lease, “Permitted Materials” shall mean the materials handled by Tenant in the ordinary course of conducting Permitted Activities.

4.3 Environmental Requirements. Tenant understands that the Property is underlain by a plume of contaminated groundwater that comprises two Superfund sites: the former Naval Air Station Moffett Field; and the Middlefield-Ellis-Whisman site. Tenant understands that the groundwater is contaminated with solvents and petroleum hydrocarbons. Tenant hereby acknowledges receipt of the environmental reports listed on attached Exhibit D. Tenant hereby agrees that: (a) Tenant shall not conduct, or permit to be conducted, on the Premises any activity which is not a Permitted Activity; (b) Tenant shall not use, store or otherwise handle, or permit any use, storage or other handling of, any Hazardous Material which is not a Permitted Material on or about the Premises; (c) Tenant shall obtain and maintain in effect all permits and licenses required pursuant to any Environmental Law for Tenant’s activities on the Premises, and Tenant shall at all times comply with all applicable Environmental Law; (d) Tenant shall not engage in the storage, treatment or disposal on or about the Premises of any Hazardous Material except for any temporary accumulation of waste generated in the course of Permitted Activities; (e) Tenant shall not install any aboveground or underground storage tank or any subsurface lines for the storage or transfer of any Hazardous Material, except in accordance with Environmental Law, and Tenant shall store all Hazardous Materials in a manner that protects the Premises, the Buildings, the Property and the environment from accidental spills and releases; (f) Tenant shall not cause any (and shall not allow any third party other than Landlord on the Premises during the Term to) release of any Hazardous Material or any condition of pollution or nuisance on or about the Premises, whether affecting surface water or groundwater, air, the land or the subsurface environment; (g) Tenant shall promptly remove from the Premises any Hazardous Material introduced, or permitted to be introduced, onto the Premises by Tenant which is not a Permitted Material and, on or before the date Tenant ceases to occupy the Premises, Tenant shall remove from the Premises all Hazardous Materials and all Permitted Materials handled by or permitted on the Premises by Tenant; and (h) if any release of a Hazardous Material to the environment, or any condition of pollution or nuisance, occurs on or about or beneath the Premises or either Building as a result of any act of Tenant or its agents, employees, contractors, invitees or licensees, Tenant, at Tenant’s sole cost and expense, shall promptly undertake all remedial measures required to clean up and abate or otherwise respond to the release, pollution or nuisance in accordance with all applicable Environmental Law. Landlord and Landlord’s representatives shall have the right, but not the obligation, to enter the Premises at any reasonable time for the purpose of inspecting the storage, use and handling of any Hazardous

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Material on the Premises in order to determine Tenant’s compliance with the requirements of this Lease and applicable Environmental Law. If Landlord gives written notice to Tenant that Tenant’s use, storage or handling of any Hazardous Material on the Premises may not comply with this Lease or applicable Environmental Law. Tenant shall correct any such violation within five (5) days after Tenant’s receipt of such notice from Landlord to the extent required by Environmental Laws. Tenant shall indemnify and defend Landlord against and hold Landlord harmless from all claims, demands, actions, judgments, liabilities, costs, expenses, losses, damages, penalties, fines and obligations of any nature (including reasonable attorneys’ fees and disbursements incurred in the investigation, defense or settlement of claims) that Landlord may incur as a result of, or in connection with, claims arising from the presence, use, storage, transportation, treatment, disposal, release or other handling, on or about or beneath the Premises, of any Hazardous Material existing on or about or beneath the Premises caused by Tenant or its agents, employees, contractors, invitees or licensees (collectively “Tenant Contamination”). Landlord hereby agrees to release Tenant from, and shall not charge Tenant for, any liabilities, costs, expenses, losses, damages, penalties, fines or obligations of any nature as a result of, or in connection with any Hazardous Materials existing at the Property that are not Tenant Contamination, except to the extent that Tenant or its employees, agents, contractors or invitees exacerbates or causes a release of any such existing Hazardous Materials. Tenant’s activities that comply with the permitted use of the Premises set forth in the Basic Lease Information will be included in NASA’s sitewide permits and plans, as applicable, such as the Spill Prevention Control and Countermeasures Plan, the Storm Water Pollution Prevention Plan, the Biennial Hazardous Waste Report, the above ground storage tank statement, the Sunnyvale Industrial Waste Water permit, the Environmental Resources Document, and the Integrated Natural Resources Management Plan. Coverage in these and other sitewide plans is included in the cost of ISP Services (as defined in section 6.1). Tenant shall promptly supply information to the NASA Environmental Office (Code JQ) that is needed to complete these documents, and comply with the conditions of these permits. Tenant, at its sole cost, is responsible for obtaining hazardous materials storage permits and air permits required by Environmental Law for Tenant’s use of the Premises. The liability of Tenant under this section 4.3 shall survive the termination of this Lease with respect to acts or omissions that occur before such termination. Landlord acknowledges that Tenant has provided the necessary documents required under this Lease as of the Commencement Date with respect to Tenant’s existing use of Hazardous Materials at the Premises.

4.4 Compliance With Law. Tenant shall, at Tenant’s sole cost and expense, promptly comply with all Federal, state and local laws, ordinances, rules, regulations, codes (including the California Building Code), orders and other requirements of any government or public authority (including Landlord) now in force or which may hereafter be in force, with all requirements of any board of fire underwriters such as the National Fire Protection Association (“NFPA”) or other similar body now or hereafter constituted, and with all directions and certificates of occupancy issued pursuant to any law by any governmental agency (including Landlord) or officer, insofar as any thereof relate to Tenant’s use of the Premises or the operation, use or maintenance of any personal property, fixtures, machinery, equipment or improvements on the Premises (collectively, “Applicable Laws”). Without limiting the foregoing, Tenant shall comply with all policy directives, procedural requirements, procedures and guidelines, and standards promulgated by Landlord or NASA Ames Research Center from time to time

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(collectively, “Landlord Policies”), including with respect to construction activities, facility use, land use, health, safety, security and environmental standards (including Environmental Law). Landlord agrees that no change in Landlord Policies shall be retroactively applied to the Premises with the result that Tenant must incur any capital expense, unless (i) Tenant modifies the Premises, changes its use or takes such other act as would require compliance with Landlord Policies, or (ii) a corresponding change in Applicable Laws other than Landlord Policies requires retroactive application to the Premises. Notwithstanding the foregoing, Tenant shall not be obligated to comply with Ames Procedural Requirements 1700.1, except with respect to explosive materials; radioactive materials (as defined by the Nuclear Regulatory Commission); Class IIIa, IIIb or IV lasers or microwave or radio frequency transmitters; cryogens; pressure systems; or human pathogens that require Center for Disease Control Biosafety level III or IV containment. Tenant shall deliver prior written notice to Landlord before Tenant manufactures, uses, stores or transports any such items on or about the Premises or the Property, and Landlord shall have the right to approve (and establish requirements for, or conditions of, approval) before Tenant manufactures, uses, stores or transports any such items. This Lease does not grant Tenant any rights to use the NASA or NASA Ames Research Center name, initials or logo. Tenant agrees to submit to Landlord for its approval all promotional and advertising material that uses the NASA or NASA Ames Research Center name, initials or logo prior to publication. Approval by Landlord shall be based on Applicable Laws (e.g. 51 U.S.C. §§ 20141, 20111(a) and 20113(a); and 14 C.F.R. § 1221.100 et seq.) and policy governing the use of the words “National Aeronautics and Space Administration” and the letters “NASA.” Tenant shall not be required to make structural changes to the Premises or the Buildings unless structural changes are related to or required by Tenant’s acts or use of the Premises or by improvements made by or for Tenant. Occupancy of the Premises is permitted under Landlord’s 2002 Environmental Impact Statement. To comply with the TDM Plan (as defined below), Tenant will cooperate with Landlord and hereby authorizes Landlord to complete a transportation survey of Tenant’s employees as may be requested by Landlord from time to time. As used in this Lease, the phrase “TDM Plan” shall mean that certain draft report entitled “NASA Research Park and Bay View Transportation Demand Management Plan,” dated July 2002 (prepared by Nelson/Nygaard Consulting Associates), which is a portion of Appendix B to the NASA Ames Development Plan Final Programmatic Environmental Impact Statement.

4.5 Rules and Regulations. The use and occupancy of the Premises shall be subject to such reasonable and non-discriminatory rules and regulations as may be prescribed from time to time by NASA policy covering various matters, including operations, security, access, communications or other aspects of the mission of the Property. Landlord agrees that no change in such rules and regulations shall be retroactively applied to the Premises with the result that Tenant must incur any capital expense, unless (i) Tenant modifies the Premises, changes its use or takes such other act as would require compliance with such rules and regulations, or (ii) a corresponding change in Applicable Laws other than such rules and regulations requires retroactive application to the Premises.

4.6 Entry by Landlord. Landlord shall have the right to enter the Premises at any time to (a) inspect the Premises, (b) exhibit the Premises to prospective purchasers, tenants or users, (c) determine whether Tenant is performing all of Tenant’s obligations, (d) supply any service to be provided by Landlord, (e) post notices of nonresponsibility, and (f) make any repairs to the Premises, or make any repairs to any adjoining space or Utilities, or make any repairs, alterations

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or improvements to any other portion of the Property, provided that all such work shall be done as promptly as reasonably practicable and so as to cause as little interference to Tenant as reasonably practicable. Landlord also specifically reserves the following rights: (i) to control ingress to and egress from the Property, to erect and maintain gates, and to regulate or prevent traffic; and (ii) on behalf of Landlord, the United States Environmental Protection Agency, the State of California and other entities and governmental agencies that are involved in the remediation of, or that are responsible to remediate, existing contamination on or about the Property, the right to have unobstructed access to known or suspected areas of contamination or other areas upon which any containment system, treatment system, monitoring system, or other environmental response action is installed or implemented, or to be installed or implemented, for the purposes of the complying with Environmental Law and requirements. Tenant waives all claims for damages for any injury or Inconvenience to or interference with Tenant’s business, any loss of occupancy or quiet enjoyment of the Premises or any other loss occasioned by such entry or Landlord’s exercise of such reserved rights. All locks for all doors in, on or about the Premises (excluding Tenant’s vaults, safes and similar special security areas designated in writing by Tenant) shall be keyed to the master system for the Property. Landlord shall at all times have a key to unlock all such doors and Landlord shall have the right to use any and all means which Landlord may deem proper to open such doors in an emergency to obtain entry to the Premises. Any entry to the Premises obtained by Landlord by any of such means shall not under any circumstances be construed or deemed to be a forcible or unlawful entry into or a detainer of the Premises or an eviction, actual or constructive, of Tenant from the Premises or any portion thereof.

ARTICLE 5

Utilities and Demand Services

5.1 Landlord’s Responsibilities. Landlord shall furnish Utilities to the Premises in accordance with Landlord’s current practices and standards for the Property, subject to temporary shut down for repairs, for security purposes, for compliance with any Applicable Laws or due to any event or occurrence beyond Landlord’s reasonable control. Tenant agrees that Landlord’s practices and standards do not include Utilities in quantities exceeding those typically and reasonably necessary for average office building environments and uses, and Landlord makes no representations or warranties to Tenant regarding the adequacy or fitness of any Utilities for Tenant’s use, occupancy or enjoyment of the Premises (including, without limitation, Tenant’s needs, If any for additional or unique heating, ventilation, air conditioning, electricity or natural gas). The Parties acknowledge that the Buildings are separately metered for electricity service, natural gas service and water service (following Tenant’s installation of a water meter with respect to the Building 154 Premises). Tenant shall pay Landlord as Demand Services for all Utilities consumed on the Premises as measured by such meters and as read by Landlord periodically (charges for sewer service shall be calculated as a percentage of water consumed). Landlord shall not be in default under this Lease or be liable for any damage or loss directly or indirectly resulting from, nor shall the rent be abated or a constructive or other eviction be deemed to have occurred by reason of, any interruption of or failure to supply or delay in supplying any Utilities or Demand Services or any limitation, curtailment, rationing or restriction on use of water, electricity, natural gas or any resource or form of energy or other service serving the Premises or the Property, whether such results from mandatory restrictions or voluntary compliance with guidelines; provided, however, that in the event any such curtailment,

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limitation, rationing or restriction materially interferes with Tenant’s ability to perform its operations in the Premises for thirty (30) continuous days or longer, Tenant shall have the right to terminate this Lease by delivering written notice to Landlord on or before the date which is sixty (60) days after such curtailment, limitation, rationing or restriction commenced.

5.2 Tenant’s Responsibilities. Tenant shall pay before delinquency for all Demand Services supplied to the Premises in accordance with Article 3, together with all taxes, assessments, surcharges and similar expenses relating to such Demand Services (if any). Tenant shall make arrangements with an appropriate telephone service provider for any or all telephone services to be provided directly to Tenant, and Tenant shall pay before delinquency the costs thereof to the entity providing the same. In addition, at Tenant’s option from time to time, but in each instance subject to Landlord’s prior written approval (which approval shall not be unreasonably withheld), Tenant may make arrangements with appropriate service providers for any or all Demand Services to be provided directly to Tenant, in which event Tenant shall pay before delinquency the costs thereof to the entity providing the same.

ARTICLE 6

Maintenance and Repairs

6.1 Obligations of Landlord. Landlord shall maintain and repair the common areas of the Property, and keep them in good condition, reasonable wear and tear excepted. The parties agree that, for purposes of this Article 6, Landlord’s obligations extend to the following locations (the “Points of Connection”): (a) with respect to the electrical power (including wiring, electrical components and apparatus, and auxiliary supporting systems and equipment such as HVAC equipment), natural gas service and water utility systems located on, in or under the common areas of the Property and which serve the Buildings, to the applicable meter for each such utility system for each Building; and (b) with respect to the common areas of the Property and all utility systems other than electrical power, natural gas service and water, to the point which is five (5) feet from the exterior walls of each Building. If requested by Tenant in writing, Landlord shall provide, as a Demand Service, janitorial services in accordance with Landlord’s current standards and practices (and Tenant acknowledges that trash is collected only three (3) times per week). Landlord shall provide ISP Services with respect to the Property in accordance with Landlord’s current practices and standards for the Property, subject to temporary shut down for repairs, for security purposes, for compliance with any Applicable Laws or due to any event or occurrence beyond Landlord’s reasonable control. Tenant shall give Landlord written notice of the need for any maintenance or repair for which Landlord is responsible, after which Landlord shall have a reasonable opportunity to perform the maintenance or make the repair, and Landlord shall not be liable for any failure to do so unless such failure continues for an unreasonable time after Tenant gives such written notice to Landlord. Tenant waives any right to perform maintenance or make repairs for which Landlord is responsible at Landlord’s expense. Landlord’s liability with respect to any maintenance or repair for which Landlord is responsible shall be limited to the cost of the maintenance or repair. Any damage to any part of the Property for which Landlord is responsible that is caused by Tenant or any agent, employee, contractor, licensee or invitee of Tenant shall be repaired by Landlord at Tenant’s expense and Tenant shall pay to Landlord, upon billing by Landlord, as additional rent, the cost of such repairs incurred by Landlord. As used in this Lease, the phrase “ISP Services” shall mean: (i) common grounds and road maintenance; (ii) security; (iii) structural fire response and periodic Fire Marshal inspections; (iv) first responder operations (Hazardous Material); (v) utility infrastructure systems maintenance and repair; and (vi) routine administrative support and management oversight (i.e. environmental oversight) related to this Lease.

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6.2 Obligations of Tenant. Tenant shall maintain and repair the Premises and the Buildings, including the foundations, walls, windows, glass or plate glass, exterior doors, entries, the heating and air conditioning, mechanical, electrical, plumbing and life safety systems, the roof and other structural components of the Buildings. The parties agree that, for purposes of this Article 6, Tenant’s obligations to maintain and repair the Premises (including the utility systems on, in and under the common areas of the Property that serve the Buildings) extend to and include the Points of Connection. Tenant shall not damage the Premises or disturb the integrity and support provided by any wall. Tenant shall, at Tenant’s expense, promptly repair any damage to the Premises caused by Tenant or any agent, employee, contractor, licensee or invitee of Tenant. Tenant shall take good care of the Premises and keep the Premises free from dirt, rubbish, waste and debris at all times. Tenant, at its cost, shall provide janitorial services for the Premises. Tenant shall not overload the floors in the Buildings or exceed the load-bearing capacity of the floors in the Buildings. Tenant shall, at the end of the Term, surrender to Landlord the Premises and all alterations, additions, fixtures and improvements therein or thereto in the same condition as existed on the Commencement Date, ordinary wear and tear excepted; provided, however, Tenant shall remove all improvements, alterations, additions, equipment and fixtures installed or placed by Tenant on any portion of the Building 543 Premises other than Building 543.

ARTICLE 7

Alteration of the Premises

7.1 No Alterations by Tenant. Tenant shall not make any alterations, additions or improvements in or to the Premises or any part thereof, or attach any fixtures or equipment thereto, without Landlord’s prior written consent, not to be unreasonably withheld or delayed. All alterations, additions and improvements in or to the Premises to which Landlord consents shall be made by Tenant at Tenant’s sole cost and expense as follows:

(a) Tenant shall submit to Landlord, for Landlord’s written approval, complete plans and specifications for all work to be done by Tenant. Such plans and specifications shall be prepared by responsible licensed architect(s) and engineer(s), shall comply with all Applicable Laws, shall not adversely affect any systems, components or elements of the Buildings or the Property, shall be in a form sufficient to secure the approval of all government authorities with jurisdiction over the Property, and shall be otherwise satisfactory to Landlord in Landlord’s reasonable discretion.

(b) Tenant shall obtain all required permits for the work from the Ames Construction Permit Office, in accordance with Ames Policy Directive 8829.1. In addition, Tenant shall obtain hot-work permits from the NASA Safety, Health and Medical Services Division during normal business hours at least twenty – four (24) hours prior to performing any welding, cutting, torching or similar open flame work. Tenant shall engage responsible contractor(s) licensed in the State of California to perform all work. Tenant and its contractors shall carry such liability and builder’s risk insurance as Landlord may reasonably require with respect to the work, which

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policies shall comply with the provisions of section 8.3. Landlord reserves the right to cause Tenant or its contractors to procure and maintain payment, performance and/or completion bonds with respect to the work. Tenant shall perform all work in accordance with the plans and specifications approved by Landlord, in a good and workmanlike manner, in full compliance with all Applicable Laws, and free and clear of any mechanics’ liens. Tenant shall pay for all work (including the cost of all Utilities, permits, fees, taxes, and property and liability insurance premiums in connection therewith) required to make the alterations, additions and improvements. Tenant shall pay to Landlord all direct costs and shall reimburse Landlord for all expenses incurred by Landlord in connection with the review, approval and supervision of any alterations, additions or improvements made by Tenant. Under no circumstances shall Landlord be liable to Tenant for any damage, loss, cost or expense incurred by Tenant on account of design of any work, construction of any work, or delay in completion of any work.

(c) Tenant shall give written notice to Landlord of the date on which construction of any work will be commenced at least five (5) days prior to such date. Tenant shall keep the Premises and the Property free from mechanics’, materialmen’s and all other liens arising out of any work performed, labor supplied, materials furnished or other obligations incurred by Tenant. Tenant shall promptly and fully pay and discharge all claims on which any such lien could be based. Tenant shall have the right to contest the amount or validity of any such lien, provided Tenant gives prior written notice of such contest to Landlord, prosecutes such contest by appropriate proceedings in good faith and with diligence, and, upon request by Landlord, furnishes such bond as may be required by law or such security as Landlord may require to protect the Premises and the Property from such lien. Landlord shall have the right to post and keep posted on the Premises any notices that may be provided by law or which Landlord may deem to be proper for the protection of Landlord, the Premises and the Property from such liens, and to take any other action Landlord deems necessary to remove or discharge liens or encumbrances at the expense of Tenant.

7.2 Tenant’s Property. All improvements, alterations, additions, equipment and fixtures, whether temporary or permanent in character, made in or to any portion of the Building 543 Premises other than Building 543 (including all such improvements, alterations, additions, equipment and fixtures previously made by Tenant pursuant to the Existing Leases) shall be removed by Tenant upon the expiration or earlier termination of this Lease. Tenant shall return Building 543 its condition as existed on the Commencement Date, reasonable wear and tear excepted, or to such other condition as is mutually agreed to by Landlord and Tenant. Tenant shall return the Building 154 Premises to its condition as existed upon completion of the TI Work, reasonable wear and tear excepted, or to such other condition as is mutually agreed to by Landlord and Tenant. Should Tenant abandon any such alterations, additions, fixtures or improvements, they shall become the property of the United States Government and shall be retained by Landlord. All movable furniture, equipment, trade fixtures, computers, office machines and other personal property shall remain the property of Tenant. Upon termination of this Lease, Tenant shall, at Tenant’s expense, remove all such movable furniture, equipment, trade fixtures, computers, office machines and other personal property from the Property and repair all damage caused by any such removal. Termination of this Lease shall not affect the obligations of Tenant pursuant to this section 7.2 to be performed after such termination.

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ARTICLE 8

Indemnification and Insurance

8.1 Damage or Injury. Landlord shall not be liable to Tenant, and Tenant hereby waives and releases all claims against Landlord, for any damage to or loss or theft of any property or for any bodily or personal injury, illness or death of any person in, on or about the Premises or the Property arising at any time and from any cause whatsoever, unless the same is caused solely by the willful misconduct of Landlord. Tenant shall indemnify and defend Landlord against and hold Landlord harmless from all claims, demands, liabilities, damages, losses, costs and expenses, including reasonable attorneys’ fees and disbursements, arising from or related to any use or occupancy of the Premises, or any condition of the Premises, or any default in the performance of Tenant’s obligations under this Lease, or any damage to any property (including property of employees and invitees of Tenant) or any bodily or personal injury, illness or death of any person (including employees and invitees of Tenant) occurring in, on or about the Premises or any part thereof arising at any time and from any cause whatsoever (unless the same is caused solely by the willful misconduct of Landlord) or occurring in, on or about any part of the Property other than the Premises when such damage, bodily or personal injury, illness or death is caused by any act or omission of Tenant or its agents, employees, contractors, invitees or licensees. This section 8.1 shall survive the termination of this Lease with respect to any damage, bodily or personal injury, illness or death occurring prior to such termination.

8.2 Insurance Coverages and Amounts. Tenant shall, at all times during the Term and at Tenant’s sole cost and expense, obtain and keep in force the insurance coverages and amounts set forth in this section 8.2.

(a) Tenant shall maintain commercial general liability insurance, including contractual liability, broad form property damage liability, premises and completed operations, with limits not less than one million dollars ($1,000,000) per occurrence and three million dollars ($3,000,000) annual aggregate, and for fire legal liability with a limit not less than one hundred thousand dollars ($100,000) and for medical payments with a limit not less than five thousand dollars ($5,000), insuring against claims for bodily injury, personal injury and property damage arising from the use, occupancy or maintenance of the Premises and the Property. The policy shall contain an exception to any pollution exclusion which insures damage or injury arising out of heat, smoke or fumes from a hostile fire. Any general aggregate shall apply on a per location basis.

(b) If Tenant uses owned, hired and non-owned vehicles, Tenant shall maintain business auto liability insurance with limits not less than one million dollars ($1,000,000) per accident covering such vehicles.

(c) Tenant shall carry workers’ compensation insurance for all of its employees in statutory limits as required by California law and employers liability insurance which affords not less than five hundred thousand dollars ($500,000) for each coverage.

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(d) Tenant shall maintain property insurance for the perils covered by a standard fire insurance policy, extended coverage perils and vandalism and malicious mischief and, if applicable, boiler machinery and pressure vessel insurance. The amount of such insurance shall be the Full Insurable Replacement Value (as defined below). All such policies shall specify that proceeds shall be payable on a Full Insurable Replacement Value basis if the improvements are actually repaired or rebuilt and on an “actual cash value” basis if the improvements are neither repaired nor replaced, and shall include a “guaranteed amount” or “stipulated amount” endorsement of coverage in lieu of a coinsurance provision under the policy. As used in this Lease, the phrase “Full Insurable Replacement Value” means one hundred percent (100%) of actual costs to perform repairs, maintenance, replacement or alterations of the Premises or any part thereof (without deduction for depreciation but with standard exclusions such as foundations, excavations, paving and landscaping, as applicable to specific perils), including Tenant’s movable furniture, equipment, trade fixtures or personal property in the Premises, and including the costs of demolition and debris removal and an increased cost of construction endorsement. The Full Insurable Replacement Value of Building 543 initially shall be one million four hundred fifty – three thousand dollars ($1,453,000). The Full Insurable Replacement Value of Building 154 initially shall be four million seven hundred forty – two thousand dollars ($4,742,000). Tenant shall, throughout the Term, maintain coverage at the current Full Insurable Replacement Value (with a commercially reasonable deductible) determined as provided herein.

(e) Tenant shall, at Tenant’s sole expense, obtain and keep in force during the Term an “all risk” insurance policy for Tenant’s personal property, furniture, fixtures and equipment, inventory, alterations, trade fixtures, and plate glass located on the Premises, in an amount not less than one hundred percent (100%) of their actual replacement value, providing coverage for risk of direct physical loss or damage including vandalism and malicious mischief. The proceeds of such insurance, so long as this Lease remains in effect, shall be used to repair or replace the personal property, furniture, fixtures and equipment, inventory, alterations, trade fixtures, and plate glass so insured. Provided such proceeds are applied as set forth in this section 8.2(e), any insurance proceeds received by Tenant under such policy shall be the sole property of Tenant, and Landlord shall have no rights thereto.

(f) Any deductibles selected by Tenant for any insurance policy described in this section 8.2 shall be the sole responsibility of Tenant.

8.3 Insurance Requirements.

(a) All insurance and all renewals thereof shall be issued by companies with a rating of at least “A-” “VIII” (or its equivalent successor) or better in the current edition of Best’s Insurance Reports (or its equivalent successor, or, if there is no equivalent successor rating, otherwise acceptable to Landlord) and be licensed to do and doing business in California.

(b) Each policy shall be endorsed to provide that the policy shall not be canceled or materially altered without thirty (30) days prior written notice to Landlord and shall remain in effect notwithstanding any such cancellation or alteration until such notice shall have been given to Landlord and such period of thirty (30) days shall have expired.

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(c) The commercial general liability and any automobile liability insurance shall be endorsed to name Landlord (and any other parties designated by Landlord) as an additional insured, shall be primary and noncontributing with any insurance which may be carried by Landlord, and shall afford coverage for all claims based on any act, omission, event or condition that occurred or arose (or the onset of which occurred or arose) during the policy period.

(d) Tenant shall deliver certificates of insurance and endorsements, acceptable to Landlord, together with copies of the insurance policies, to Landlord at least ten (10) days before the Commencement Date and at least ten (10) days before expiration of each policy. Such documents shall be delivered to the address for certificate holder set forth below. If Tenant fails to insure or fails to furnish any such insurance certificate, endorsement or policy. Landlord shall have the right from time to time to effect such insurance for the benefit of Tenant or Landlord or both of them, and Tenant shall pay to Landlord on written demand, as additional rent, all premiums paid by Landlord. Each certificate of insurance shall list the certificate holder as follows:

NASA Ames Research Center

Office of the Chief Counsel, Mail Stop 200-12

Bldg. 200, Rm 234

P.O. Box 1

Moffett Field, CA 94035-0001

(e) If Landlord at any time believes that the limits or extent of coverage or deductibles with respect to any of the insurance required in this Lease are insufficient, Landlord may determine the proper and reasonable limits and extent of coverage and deductibles for such insurance and such insurance shall thereafter be carried with the limits and extent of coverage and deductibles as so determined until further change pursuant to the provisions of this Lease.

(f) No approval by Landlord of any insurer, or the terms or conditions of any policy, or any coverage or amount of insurance, or any deductible amount shall be construed as a representation by Landlord of the solvency of the insurer or the sufficiency of any policy or any coverage or amount of insurance or deductible. By requiring insurance herein, Landlord makes no representation or warranty that coverage or limits will necessarily be adequate to protect Tenant, and such coverage and limits shall not be deemed as a limitation on Tenant’s liability under the indemnities granted to NASA in this Lease.

(g) Failure of NASA to demand such certificate or other evidence of full compliance with these insurance requirements or failure of NASA to identify a deficiency from evidence that is provided shall not be construed as a waiver of Tenant’s obligation to maintain such insurance.

8.4 Subrogation. Tenant waives on behalf of all insurers under all policies of insurance now or hereafter carried by Tenant insuring or covering the Premises, or any portion or any contents thereof, or any operations therein, all rights of subrogation which any such insurer might otherwise, if at all, have to any claims of Tenant against Landlord except for workers’ compensation. Tenant shall procure from each of the insurers under all such policies of insurance a waiver of all rights of subrogation which the insurer might otherwise, if at all, have to any claims of Tenant against Landlord as required by this section 8.4 stating the following: “The insurer waives any right of subrogation against the United States of America which might arise by reason of any payment made under this policy.”

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ARTICLE 9

Assignment or Sublease

9.1 Prohibition. Tenant shall not, directly or indirectly, without the prior written consent of Landlord (which consent may be given or withheld in Landlord’s sole and absolute discretion), assign this Lease or any interest herein or sublease the Premises or any part thereof, or permit the use or occupancy of the Premises by any person or entity other than Tenant, Tenant shall not, directly or indirectly, without the prior written consent of Landlord (which consent may be given or withheld in Landlord’s sole and absolute discretion), pledge, mortgage or hypothecate this Lease or any interest herein. This Lease shall not, nor shall any interest herein, be assignable as to the interest of Tenant involuntarily or by operation of law without the prior written consent of Landlord (which consent may be given or withheld in Landlord’s sole and absolute discretion), provided that if Landlord’s consent is unreasonably withheld, Tenant shall have the right to terminate this Lease by delivering written notice to Landlord within ten (10) days after the date Landlord withholds its consent. Landlord’s consent to any proposed assignment or subletting shall not be unreasonably delayed and if not given or withheld within thirty (30) days following Tenant’s request for consent, shall be deemed withheld. Any of the foregoing acts without such prior written consent of Landlord shall be void and shall, at the option of Landlord, constitute a default that entitles Landlord to terminate this Lease. Tenant agrees that the instrument by which any assignment or sublease to which Landlord consents is accomplished shall expressly provide that the assignee or subtenant will perform all of the covenants to be performed by Tenant under this Lease (in the case of a sublease, only insofar as such covenants relate to the portion of the Premises subject to such sublease) as and when performance is due after the effective date of the assignment or sublease and that Landlord will have the right to enforce such covenants directly against such assignee or subtenant. Any purported assignment or sublease without an instrument containing the foregoing provisions shall be void. Tenant shall in all cases remain liable for the performance by any assignee or subtenant of all such covenants. Notwithstanding the foregoing, Tenant may, subject to Landlord’s limited consent rights set forth below and without any participation by Landlord in assignment and subletting proceeds, sublet the Premises or assign the Lease to any of the following entities (each, a “Permitted Transferee”): (i) a subsidiary, affiliate, division or corporation controlling, controlled by or under common control with Tenant; (ii) a successor corporation related to Tenant by merger, consolidation, nonbankruptcy reorganization, or government action; or (iii) a purchaser of substantially all of Tenant’s assets located in the Premises. If Tenant desires to sublet the Premises or assign the Lease to a Permitted Transferee, Tenant shall deliver written notice to Landlord and describe in reasonable detail the proposed use of the Premises by the Permitted Transferee and discuss whether or not the Permitted Transferee will continue (or expand) the collaborative and programmatic relationships between Landlord and Tenant in support of Landlord’s missions. Landlord agrees not to unreasonably withhold its consent to a sublease or assignment to a Permitted Transferee; provided, however, Tenant agrees that it shall be reasonable for Landlord to withhold consent if Landlord reasonably determines that the Permitted Transferee will not continue and maintain such collaborative and programmatic relationships. Landlord’s consent to a sublease or assignment to a Permitted Transferee shall be deemed given unless Landlord delivers to Tenant written notice withholding its consent within thirty (30) days after receiving Tenant’s written request. For the purpose of this Lease, sale of Tenant’s capital stock through any public exchange shall not be deemed an assignment, subletting, or any other transfer of the Lease or the Premises.

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9.2 Landlord’s Consent or Termination. If Tenant wishes to assign this Lease or sublease all or any part of the Premises, Tenant shall give written notice to Landlord identifying the intended assignee or subtenant by name and address and specifying all of the terms of the intended assignment or sublease. Tenant shall give Landlord such additional information concerning the intended assignee or subtenant (including complete financial statements and a business history) or the intended assignment or sublease (Including true copies thereof) as Landlord requests. For a period of thirty (30) days after such written notice is given by Tenant, Landlord shall have the right, by giving written notice to Tenant, (a) to consent in writing to the intended assignment or sublease, unless Landlord determines not to consent, or (b) in the case of an assignment of this Lease or a sublease of substantially the entire Premises for substantially the balance of the Term, to terminate this Lease, which termination shall be effective as of the date on which the intended assignment or sublease would have been effective if Landlord had not exercised such termination right.

9.3 Completion. If Landlord consents in writing, Tenant may complete the intended assignment or sublease subject to the following covenants: (a) the assignment or sublease shall be on the same terms as set forth in the written notice given by Tenant to Landlord, (b) no assignment or sublease shall be valid and no assignee or subtenant shall take possession of the Premises or any part thereof until an executed duplicate original of such assignment or sublease has been delivered to Landlord, (c) no assignee or subtenant shall have a right further to assign or sublease, and (d) all “excess rent” (as defined below) derived from such assignment or sublease shall be paid to Landlord. Such excess rent shall be deemed to be, and shall be paid by Tenant to Landlord as, additional rent. Tenant shall pay such excess rent to Landlord immediately as and when such excess rent becomes due and payable to Tenant. As used in this section 9.3, “excess rent” shall mean the amount by which the total money and other economic consideration to be paid by the assignee or subtenant as a result of an assignment or sublease, whether denominated rent or in lieu of rent, exceeds, in the aggregate, the total amount of rent which Tenant is obligated to pay to Landlord under this Lease (prorated to reflect the rent allocable to the portion of the Premises subject to such assignment or sublease), less only the reasonable costs paid by Tenant for reasonable leasing commissions, reasonable attorneys’ fees and additional improvements installed in the portion of the Premises subject to such assignment or sublease by Tenant at Tenant’s sole cost and expense for the specific assignee or subtenant in question, without deduction for carrying costs due to vacancy or otherwise. The costs of additional improvements shall be amortized without interest over the term of such assignment or sublease.

9.4 Tenant Not Released. No assignment or sublease whatsoever shall release Tenant from Tenant’s obligations and liabilities under this Lease or alter the primary liability of Tenant to pay all rent and to perform all obligations to be paid and performed by Tenant. No assignment or sublease shall amend or modify this Lease in any respect, and every assignment and sublease shall be subject and subordinate to this Lease. The acceptance of rent by Landlord from any other person or entity shall not be deemed to be a waiver by Landlord of any provision of this Lease. Consent to one assignment or sublease shall not be deemed consent to any subsequent assignment or sublease. Tenant shall pay to Landlord all direct costs and shall reimburse Landlord for all expenses incurred by Landlord in connection with any assignment or sublease

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requested by Tenant not to exceed two thousand dollars ($2,000) per event of assignment or subletting. If any assignee, subtenant or successor of Tenant defaults in the performance of any obligation to be performed by Tenant under this Lease. Landlord may proceed directly against Tenant without the necessity of exhausting remedies against such assignee, subtenant or successor. Landlord may consent to subsequent assignments or subleases or amendments or modifications to this Lease with assignees, subtenants or successors of Tenant, without notifying Tenant or any successor of Tenant and without obtaining any consent thereto from Tenant or any successor of Tenant, and such action shall not release Tenant from liability under this Lease.

ARTICLE 10

Events of Default and Remedies

10.1 Default by Tenant. The occurrence of any one or more of the following events (“Event of Default”) shall constitute a breach of this Lease by Tenant:

(a) Tenant fails to pay any Base Rent, or any additional rent under section 3.1, or other amount of money or charge payable by Tenant and such failure continues for more than ten (10) days after the date such rent becomes due and payable; or

(b) Tenant fails to perform or breaches any other agreement or covenant of this Lease to be performed or observed by Tenant as and when performance or observance is due and such failure or breach continues for more than ten (10) days after Landlord gives written notice thereof to Tenant; provided, however, that if, by the nature of such agreement or covenant, such failure or breach cannot reasonably be cured within such period of ten (10) days, an Event of Default shall not exist as long as Tenant commences with due diligence and dispatch the curing of such failure or breach within such period of ten (10) days and, having so commenced, thereafter prosecutes with diligence and dispatch and completes the curing of such failure or breach; or

(c) Tenant (i) files, or consents by answer or otherwise to the filing against it of, a petition for relief or reorganization or arrangement or any other petition in bankruptcy or for liquidation or to take advantage of any bankruptcy, insolvency or other debtors’ relief law of any jurisdiction, (ii) makes an assignment for the benefit of its creditors, or (iii) consents to the appointment of a custodian, receiver, trustee or other officer with similar powers of Tenant or of any substantial part of Tenant’s property; or

(d) Without consent by Tenant, a court or government authority enters an order, and such order is not vacated within thirty (30) days, (i) appointing a custodian, receiver, trustee or other officer with similar powers with respect to Tenant or with respect to any substantial part of Tenant’s property, or (ii) constituting an order for relief or approving a petition for relief or reorganization or arrangement or any other petition in bankruptcy or for liquidation or to take advantage of any bankruptcy, insolvency or other debtors’ relief law of any jurisdiction, or (iii) ordering the dissolution, winding-up or liquidation of Tenant; or

(e) This Lease or any estate of Tenant hereunder is levied upon under any attachment or execution and such attachment or execution is not vacated within thirty (30) days; or

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(f) Tenant abandons the Premises.

10.2 Termination. If an Event of Default occurs, Landlord shall have the right at any time to give a written termination notice to Tenant and, on the date specified in such notice, Tenant’s right to possession shall terminate and this Lease shall terminate. Upon such termination, Landlord shall have the full and immediate right to possession of the Premises and Landlord shall have the right to recover from Tenant all unpaid rent which had been earned at the time of termination, all unpaid rent for the balance of the Term after termination, and all other amounts necessary to compensate Landlord for all the detriment proximately caused by Tenant’s failure to perform all of Tenant’s obligations under this Lease or which in the ordinary course of things would be likely to result therefrom.

10.3 Continuation. If an Event of default occurs, this Lease shall continue in effect for so long as Landlord does not terminate Tenant’s right to possession, and Landlord shall have the right to enforce all its rights and remedies under this Lease, including the right to recover all rent as it becomes due under this Lease. Acts of maintenance or preservation or efforts to relet the Premises or the appointment of a receiver upon initiative of Landlord to protect Landlord’s interest under this Lease shall not constitute a termination of Tenant’s right to possession unless written notice of termination is given by Landlord to Tenant.

10.4 Remedies Cumulative. Upon the occurrence of an Event of Default, Landlord shall have the right to exercise and enforce all rights and remedies granted or permitted by law. The remedies provided for in this Lease are cumulative and in addition to all other remedies available to Landlord at law or in equity by statute or otherwise. Exercise by Landlord of any remedy shall not be deemed to be an acceptance of surrender of the Premises by Tenant, either by agreement or by operation of law. Surrender of the Premises can be effected only by the written agreement of Landlord and Tenant.

10.5 Tenant’s Primary Duty. All agreements and covenants to be performed or observed by Tenant under this Lease shall be at Tenant’s sole cost and expense and without any abatement of rent. If Tenant fails to pay any sum of money to be paid by Tenant or to perform any other act to be performed by Tenant under this Lease, Landlord shall have the right, but shall not be obligated, and without waiving or releasing Tenant from any obligations of Tenant, to make any such payment or to perform any such other act on behalf of Tenant in accordance with this Lease. All sums so paid by Landlord and all costs incurred or paid by Landlord shall be deemed additional rent hereunder and Tenant shall pay the same to Landlord on written demand, together with interest on all such sums and costs from the date of expenditure by Landlord to the date of repayment by Tenant at the rate of ten percent (10%) per annum.

10.6 Abandoned Property. If Tenant abandons the Premises, or is dispossessed by process of law or otherwise, all alterations, additions, fixtures and improvements made by Tenant and left in the Premises, and all movable furniture, equipment, trade fixtures or personal property belonging to Tenant and left in the Premises, shall be deemed to be abandoned. Landlord may retain the same, or at the option of Landlord, sell or otherwise dispose of the same in any commercially reasonable manner.

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10.7 Landlord Default. If Landlord defaults under this Lease, Tenant shall give written notice to Landlord specifying such default with particularity, and Landlord shall have thirty (30) days after receipt of such notice within which to cure such default. In the event of any default by Landlord, Tenant’s exclusive remedy shall be an action for damages. Notwithstanding any other provision of this Lease, Landlord shall not have any personal liability under this Lease.

10.8 Landlord’s Right to Terminate. Notwithstanding any other provision of this Lease, Landlord or the Government may terminate this Lease, in whole or in part, and without cost to the Government, if there has been a determination by either (i) the Director of NASA Ames Research Center, (ii) the Assistant Administrator for Infrastructure and Administration, or (iii) the Director of the Facilities Engineering and Real Property Division that the interests of the national space program, the national defense or public welfare require termination of this Lease, and Landlord or the Government delivers to Tenant at least thirty (30) days prior written notice of such determination. In the event termination of this Lease under this section 10.8, the Government shall make a pro rata adjustment of any advance rent paid by Tenant.

ARTICLE 11

Damage or Destruction

11.1 Restoration. If a fire or other casualty occurs on the Premises during the Term, Tenant shall promptly undertake to determine the extent of the same and the estimated cost and time to perform repairs, restoration, replacement or alterations of the applicable portions of the Premises in accordance with the provisions of this Lease. Tenant shall notify Landlord of Tenant’s estimation of such cost and time as soon as reasonably practicable, but in no event later than sixty (60) days after the occurrence of the fire or other casualty. If the Premises, or any part thereof, is damaged by fire or other casualty during the Term and this Lease is not terminated pursuant to section 11.2, Tenant shall repair such damage and restore the Premises (including, if Tenant desires, as determined at Tenant’s sole discretion, any alterations, additions, fixtures or improvements made by Tenant) to substantially the same condition in which the Premises existed before the occurrence of such fire or other casualty and this Lease shall, subject to this section 11.1, remain in full force and effect. Tenant shall not be required to repair or replace any or all of Tenant’s movable furniture, equipment, trade fixtures and personal property. If such fire or other casualty damages the Premises or common areas of the Property necessary for Tenant’s use and occupancy of the Premises and if such damage is not the result of the negligence or willful misconduct of Tenant or Tenant’s agents, employees, contractors, licensees or invitees, then, during the period the Premises is rendered unusable by such damage, Tenant shall be entitled to a reduction in Base Rent in the proportion that the area of the Premises rendered unusable by such damage bears to the total area of the Premises. Landlord shall not be obligated to repair any damage to, or to make any replacement of, the Premises or any part thereof, or any of Tenant’s movable furniture, equipment, trade fixtures or personal property in the Premises. If there are proceeds of insurance in excess of that required to repair or replace the Premises as required by this section 11.1, upon receipt by Landlord of satisfactory evidence that the repair work required under this section 11.1 has been fully completed and paid for and that the last day for filing any mechanic’s or materialmen’s liens has passed without the filing of any, or if filed, any such lien has been released, any remaining amount of such proceeds of insurance shall be paid to Landlord and Tenant, as their respective interests may appear. If a fire or other casualty occurs, there is a substantial possibility that immediate emergency repairs will be required to

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eliminate defective or dangerous conditions and to comply with Applicable Laws or Environmental Law pending settlement of insurance claims and prior to procuring bids for performance of repair work. Notwithstanding any provision of this Article 11 to the contrary, Tenant shall promptly undertake such emergency repair work after a fire or other casualty as is necessary or appropriate under the circumstances to eliminate defective or dangerous conditions and to comply with Applicable Laws or Environmental Law.

11.2 Termination of Lease. If the Premises, or any part thereof, is damaged by fire or other casualty during the Term and (a) such fire or other casualty occurs during the last twelve (12) months of the Term and the repair and restoration work to be performed by Tenant in accordance with section 11.1 cannot, as reasonably estimated by Tenant, be completed within two (2) months after the occurrence of such fire or other casualty, or (b) the cost of the repair and restoration work to be performed by Tenant in accordance with section 11.1: (i) exceeds either two hundred fifty thousand dollars ($250,000) of insured loss or fifty thousand dollars ($50,000) of uninsured loss (including any applicable deductibles), (ii) exceeds the amount of insurance proceeds received by or payable to Tenant in connection with such fire or other casualty, or (iii) will take longer than one hundred twenty (120) days to repair as reasonably determined by Tenant, then, in any such event, Tenant shall have the right, by giving written notice to Landlord within sixty (60) days after the occurrence of such fire or other casualty, to terminate this Lease as of the date of such notice, provided that, in the event of such termination, and if requested to do so by Landlord in writing, Tenant shall assign to Landlord the right to receive all proceeds of the insurance maintained by Tenant pursuant to section 8.2(d), excluding any proceeds relating to any alterations or improvements paid for by Tenant and any of Tenant’s equipment, trade fixtures and other personal property. If Tenant does not exercise the right to terminate this Lease in accordance with this section 11.2, Tenant shall repair such damage and restore the Premises in accordance with section 11.1 and this Lease shall, subject to section 11.1, remain in full force and effect.

ARTICLE 12

Eminent Domain

12.1 Condemnation. Landlord shall have the right to terminate this Lease if any part of the Premises or any substantial part of the Property (whether or not it includes the Building or the Premises) is taken by exercise of the power of eminent domain before the Commencement Date or during the Term. Tenant shall have the right to terminate this Lease if a substantial portion of the Premises is taken by exercise of the power of eminent domain before the Commencement Date or during the Term and the remaining portion of the Premises is not reasonably suitable for Tenant’s purposes. In each such case, Landlord or Tenant shall exercise such termination right by giving written notice to the other within thirty (30) days after the date of such taking. If either Landlord or Tenant exercises such right to terminate this Lease in accordance with this section 12.1, this Lease shall terminate as of the date of such taking. If neither Landlord nor Tenant exercises such right to terminate this Lease in accordance with this section 12.1, this Lease shall terminate as to the portion of the Premises so taken as of the date of such taking and shall remain in full force and effect as to the portion of the Premises not so taken, and the Base Rent shall be reduced as of the date of such taking in the proportion that the area of the Premises so taken bears to the total area of the Premises. If all of the Premises are taken by exercise of the power of eminent domain before the Commencement Date or during the Term, this Lease shall terminate as of the date of such taking.

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12.2 Award. If all or any part of the Premises is taken by exercise of the power of eminent domain, all awards, compensation, damages, income, rent and interest payable in connection with such taking shall, except as expressly set forth in this section 12.2, be paid to and become the property of Landlord, and Tenant hereby assigns to Landlord all of the foregoing. Without limiting the generality of the foregoing, Tenant shall have no claim against Landlord or the entity exercising the power of eminent domain for the value of the leasehold estate created by this Lease or any unexpired Term. Tenant shall have the right to claim and receive directly from the entity exercising the power of eminent domain only the share of any award determined to be owing to Tenant for the taking of improvements installed in the portion of the Premises so taken by Tenant at Tenant’s sole cost and expense based on the unamortized cost actually paid by Tenant for such improvements, for the taking of Tenant’s movable furniture, equipment, trade fixtures and personal property, for loss of goodwill, for interference with or interruption of Tenant’s business, or for removal and relocation expenses.

12.3 Temporary Use. Notwithstanding sections 12.1 and 12.2 to the contrary, if the use of all or any part of the Premises is taken by exercise of the power of eminent domain during the Term on a temporary basis for a period less than the Term remaining after such taking, this Lease shall continue in full force and effect, Tenant shall continue to pay all of the rent and to perform all of the covenants of Tenant in accordance with this Lease, to the extent reasonably practicable under the circumstances, and the condemnation proceeds in respect of such temporary taking shall be paid to Tenant.

12.4 Definition of Taking. As used herein, a “taking” means the acquisition of all or part of the Property for a public use by exercise of the power of eminent domain or voluntary conveyance in lieu thereof and the taking shall be considered to occur as of the earlier of the date on which possession of the Property (or part so taken) by the entity exercising the power of eminent domain is authorized as stated in an order for possession or the date on which title to the Property (or part so taken) vests in the entity exercising the power of eminent domain.

ARTICLE 13

Subordination and Sale

13.1 Subordination. This Lease shall be subject and subordinate at all times to the lien of all mortgages, deeds of trust, easements, rights of way and other matters affecting title to the Property (whether or not of record) which may now exist or hereafter be placed on or against the Property or on or against Landlord’s interest or estate therein, all without the necessity of having further instruments executed by Tenant to effect such subordination. Notwithstanding the foregoing, in the event of a foreclosure of any such mortgage or deed of trust or of any other action or proceeding for the enforcement thereof, or of any sale thereunder, this Lease shall not be terminated or extinguished, nor shall the rights and possession of Tenant hereunder be disturbed, if no Event of Default then exists under this Lease, and Tenant shall attorn to the person who acquires Landlord’s interest hereunder through any such mortgage or deed of trust. Tenant agrees to execute, acknowledge and deliver upon demand such further instruments evidencing such subordination of this Lease to the lien of all such mortgages and deeds of trust as may reasonably be required by Landlord.

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13.2 Sale of the Property. If the original Landlord hereunder, or any successor owner of the Property, sells or conveys the Property, all liabilities and obligations on the part of the original Landlord, or such successor owner, under this Lease accruing after such sale or conveyance shall terminate and the original Landlord, or such successor owner, shall automatically be released therefrom, and thereupon all such liabilities and obligations shall be binding upon the new owner. Tenant agrees to attorn to such new owner.

13.3 Estoppel Certificate. At any time and from time to time, Tenant shall, within ten (10) days after written request by Landlord, execute, acknowledge and deliver to Landlord a certificate certifying: (a) that this Lease is unmodified and in full force and effect (or, if there have been modifications, that this Lease is in full force and effect as modified, and stating the date and nature of each modification); (b) the Commencement Date and the Expiration Date determined in accordance with Article 2 and the date, if any, to which all rent and other sums payable hereunder have been paid; (c) that no notice has been received by Tenant of any default by Tenant hereunder which has not been cured, except as to defaults specified in such certificate; (d) that Landlord is not in default under this Lease, except as to defaults specified in such certificate; and (e) such other matters as may be reasonably requested by Landlord or any actual or prospective purchaser or mortgage lender. Any such certificate may be relied upon by Landlord and any actual or prospective purchaser or mortgage lender of the Property or any part thereof. At any time and from time to time, Tenant shall, within ten (10) days after written request by Landlord, deliver to Landlord copies of all current financial statements (including a balance sheet, an income statement, and an accumulated retained earnings statement), annual reports, and other financial and operating information and data of Tenant prepared by Tenant in the course of Tenant’s business. Unless available to the public, Landlord shall disclose such financial statements, annual reports and other information or data only to actual or prospective purchasers or mortgage lenders of the Property or any part thereof, and otherwise keep them confidential unless other disclosure is required by law.

ARTICLE 14

Notices

14.1 Method. Except as otherwise specifically provided in this Lease, all requests, approvals, consents, notices and other communications under this Lease shall be properly given only if made in writing and either deposited in the United States mail, postage prepaid, certified with return receipt requested, or delivered by hand (which may be through a messenger or recognized delivery, courier or air express service), or sent via facsimile or electronic mail, and addressed to the applicable party as specified in the Basic Lease Information (or to such other personnel or place as a party may from time to time designate in a written notice to the other party). Such requests, approvals, consents, notices and other communications shall be effective on the date: of receipt (evidenced by the certified mail receipt) if delivered by United States mail; of hand delivery if hand delivered; or of transmission as evidenced by a machine – generated receipt or proof of transmission if sent via facsimile or electronic mail. If any such request, approval, consent, notice or other communication is not received or cannot be delivered due to a change in the address of the receiving party of which notice was not previously given to

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the sending party or due to a refusal to accept by the receiving party, such request, approval, consent, notice or other communication shall be effective on the date delivery is attempted. Any request, approval, consent, notice or other communication under this Lease may be given on behalf of a party by the attorney for such party.

14.2 Close Calls and Mishaps.

(a) For purposes of this Lease, the following terms shall have the following meanings (i) “Close Call” shall mean an occurrence or a condition of employee concern in which there is no injury, or only minor injury requiring first aid, or damage to property or equipment of less than one thousand dollars ($1,000), but which possesses a potential to cause a Mishap (as defined below); and (ii) “Mishap” shall mean an unplanned event on or about the Property and arising from the acts or omissions of Tenant or its employees, agents, contractors or invitees that results in at least one (1) of the following: (1) injury to any person; (2) damage to public or private property (including foreign property); (3) occupational injury or occupational illness to any person; or (4) failure of a NASA mission. If, in Tenant’s discretion, Tenant believes that a Close Call or Mishap may become highly visible outside of Tenant’s organization (such as by the media or a governmental agency), then Tenant shall promptly notify Landlord by telephoning the NASA Ames Safety, Health and Medical Services Division at 650 – 604 – 5602.

(b) In addition, if a Mishap involves the death of an employee, or the hospitalization for inpatient care of three (3) or more employees, then as soon as possible after the Mishap but in no event more than eight (8) hours after Tenant has knowledge of any such Mishap, Tenant shall notify both the Occupational Safety and Health Administration (“OSHA”) by telephoning the area office nearest the site of the Mishap or OSHA’s toll-free number, 800 – 321 – 6742 and the NASA Ames Safety, Health and Medical Services Division at 650 – 604 – 5602. If Tenant obtains knowledge of a fatality or hospitalization of three (3) or more employees after the eight (8) hour period described above, Tenant shall notify the foregoing offices as soon as possible but within thirty (30) days of the Mishap.

(c) The Director of NASA Ames Research Center reserves the right to investigate any Mishap in accordance with Landlord’s policies and procedures.

ARTICLE 15

Miscellaneous

15.1 General. The words “Landlord” and “Tenant” as used herein shall include the plural as well as the singular. The words “include.” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.” If there is more than one Tenant, the obligations hereunder imposed upon Tenant shall be joint and several. Time is of the essence of this Lease and each and all of its provisions. This Lease shall benefit and bind Landlord and Tenant and the permitted personal representatives, heirs, successors and assigns of Landlord and Tenant. If any provision of this Lease is determined to be illegal or unenforceable, such determination shall not affect any other provision of this Lease and all such other provisions shall remain in full force and effect. Tenant shall not record this Lease or any memorandum or short form of it.

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15.2 No Waiver. The waiver by Landlord or Tenant of any breach of any covenant in this Lease shall not be deemed to be a waiver of any subsequent breach of the same or any other covenant in this Lease, nor shall any custom or practice which may grow up between Landlord and Tenant in the administration of this Lease be construed to waive or to lessen the right of Landlord or Tenant to insist upon the performance by Landlord or Tenant in strict accordance with this Lease. The subsequent acceptance of rent hereunder by Landlord or the payment of rent by Tenant shall not waive any preceding breach by Tenant of any covenant in this Lease, nor cure any Event of Default, nor waive any forfeiture of this Lease or unlawful detainer action, other than the failure of Tenant to pay the particular rent so accepted, regardless of Landlord’s or Tenant’s knowledge of such preceding breach at the time of acceptance or payment of such rent.

15.3 Exhibits. The exhibits and any other attachments specified in the Basic Lease Information are attached to and made a part of this Lease.

15.4 Broker(s). Tenant warrants and represents to Landlord that Tenant has negotiated this Lease directly with Landlord and has not authorized or employed, or acted by implication to authorize or to employ, any other real estate broker to act for Tenant in connection with this Lease.

15.5 Waivers of Jury Trial and Certain Damages. Landlord and Tenant each hereby expressly, irrevocably, fully and forever releases, waives and relinquishes any and all right to trial by jury and any and all right to receive punitive, exemplary and consequential damages from the other (or any past, present or future member, trustee, director, officer, employee, agent, representative, or advisor of the other) in any claim, demand, action, suit, proceeding or cause of action in which Landlord and Tenant are parties, which in any way (directly or indirectly) arises out of, results from or relates to any of the following, in each case whether now existing or hereafter arising and whether based on contract or tort or any other legal basis: This Lease; any past, present or future act, omission, conduct or activity with respect to this Lease; any transaction, event or occurrence contemplated by this Lease; the performance of any obligation or the exercise of any right under this Lease; or the enforcement of this Lease. Landlord and Tenant reserve the right to recover actual or compensatory damages, with interest, attorneys’ fees, costs and expenses as provided in this Lease, for any breach of this Lease.

15.6 Entire Agreement. There are no oral agreements between Landlord and Tenant affecting this Lease, and this Lease supersedes and cancels any and all previous negotiations, arrangements, brochures, offers, agreements and understandings, oral or written, if any, between Landlord and Tenant or displayed by Landlord to Tenant with respect to the subject matter of this Lease, the Premises or the Property. There are no commitments, representations or assurances between Landlord and Tenant or between any real estate broker and Tenant other than those expressly set forth in this Lease and all reliance with respect to any commitments, representations or assurances is solely upon commitments, representations and assurances expressly set forth in this Lease. This Lease may not be amended or modified in any respect whatsoever except by an agreement in writing signed by Landlord and Tenant.

15.7 Governing Law. Except to the extent the same may be in conflict with the laws of the United States, the laws of the State of California shall govern the validity, construction and effect of this Lease. In instances where the laws of the United States refer to the laws of the state applicable to a transaction, such reference shall be made to the laws of the State of California, including California Civil Code §§1542, 1951.2 and 1951.4.

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15.8 Confidentiality. Tenant shall hold all Confidential Information (as defined below) in strict confidence and, except as specifically set forth in this section 15.8 or to the extent as may be required by an order of a court of competent jurisdiction, shall not disclose, or permit the disclosure of, any Confidential Information to any third person without the prior written approval of Landlord, which approval may be given or withheld in Landlord’s sole and absolute discretion. Tenant may disclose Confidential Information to its officers, directors, shareholders, partners, members, managers, employees, contractors, legal counsel, accountants, lenders or financial advisers with a need to have access to such information and who have signed confidentiality agreements or are otherwise bound by confidentiality obligations at least as restrictive as those contained herein. Tenant shall immediately notify Landlord upon receipt of any request or demand from any third person for any Confidential Information or the discovery of any loss or unauthorized disclosure of the Confidential Information, and Tenant shall cooperate with Landlord to permit Landlord to exhaust all challenges to the disclosure of Confidential Information (including, without limitation, seeking to quash a subpoena or seeking a protective order). Tenant acknowledges that the Confidential Information is not necessarily in the public domain by virtue of the fact that Landlord is a Federal agency, and Tenant nevertheless agrees to be bound by the provisions of this section 15.8. As used in this Lease, the phrase “Confidential Information” shall mean this Lease, any of its terms or conditions, and all other information or other matter learned, used, furnished, disclosed or generated (or hereafter learned, used, furnished, disclosed or generated) by either party pursuant to this Lease or during the negotiations leading to this Lease, provided that nothing contained in this Section 15.8 shall prohibit Tenant from publicly disclosing this Lease to the extent required by applicable securities or other laws, provided that nothing contained in this Section 15.8 shall prohibit Tenant from publicly disclosing this Lease to the extent required by applicable securities or other laws.

15.9 Anti – Deficiency Act. Landlord’s ability to perform its obligations under this Lease is subject to the availability of appropriated funds. Nothing in this Lease commits the United States Congress to appropriate funds for the purposes stated herein (pursuant to the Anti-Deficiency Act, 31 U.S.C. §1341).

IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of the date specified in the Basic Lease Information.

Tenant:		Landlord:
BLOOM ENERGY CORPORATION, a Delaware corporation		NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, an Agency of the United States
By	/s/ William H. Kurtz	By	/s/ S. Pete Worden
	William H. Kurtz		S. Pete Worden
	Chief Financial Officer		Director, Ames Research Center

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EXHIBIT A

Site Plan; Plan Outlining the Building 543 Premises

This site plan is used solely for the purpose of identifying the approximate location and size of the Premises, including the approximate location and size of the Building 543 Premises and the Restricted Area. Building sizes, site dimensions, access, common and parking areas, and existing tenants and locations are subject to change at Landlord’s discretion.

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EXHIBIT A-l

Plans Outlining the Building 154 Premises

These site plans or floor plans are used solely for the purpose of identifying the approximate location and size of the Building 154 Premises. Building sizes, site dimensions, access, common and parking areas, and existing tenants and locations are subject to change at Landlord’s discretion.

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EXHIBIT B

Description of the TI Work

Painting

Replace carpets

New furniture and cabinets in break room

Install IT network system (Cisco switches and routers)

Install badge readers on external doors that will be tied into the Ames Security system

Install separate water meter

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EXHIBIT C

Support Agreement

[Consists of three pages immediately following this page]

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FIRST AMENDMENT TO NASA AMES RESEARCH

CENTER ENHANCED USE LEASE

This First Amendment to NASA Ames Research Center Enhanced Use Lease (the “Amendment”) is made as of November 1, 2012 (the “Effective Date”), by and between the NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, an Agency of the United States, acting by and through Ames Research Center located at Moffett Field, California (“Landlord”), and BLOOM ENERGY CORPORATION, a Delaware corporation (“Tenant”), with reference to the following facts:

A. Landlord and Tenant entered into that certain NASA Ames Research Center Enhanced Use Lease, dated as of December 5, 2011 (SAA2 - 402658) (the “Lease”). Each capitalized term used in this Amendment, but not defined herein, shall have the meaning ascribed to it in the Lease.

B. Tenant desires to construct a building (containing approximately 3,375 square feet of space) (such building, together with all other work related thereto as shown on the construction drawings for such building, is referred to collectively herein as the “Additional Building”) on the real property included within the Building 543 Premises. Landlord is willing to allow Tenant to construct the Additional Building on the terms and conditions of this Amendment.

C. Landlord has informed Tenant that new agency guidance is being promulgated regarding the disposal of hazardous waste generated by tenants. The parties desire to revise the Lease to conform to such guidance.

NOW, THEREFORE, the parties agree as follows:

1. Construction of the Additional Building.

(a) Pursuant to section 7.1 of the Lease, Landlord hereby consents to Tenant’s construction of the Additional Building subject to the following conditions precedent, which must be satisfied or waived in writing by Landlord before construction of the Additional Building (or any work in connection therewith) can begin: (1) Landlord shall have approved a complete set of construction drawings for the Additional Building as required by section 7.1 of the Lease (including all other information required pursuant to section 7.1 of the Lease); (2) Tenant shall have paid to Landlord all fees and other amounts due to Landlord (if any) under the Lease, including the fee to issue the Permit (as defined below); and (3) Landlord’s Chief Building Official shall have issued to Tenant a construction permit for the Additional Building and to install a temporary construction trailer on the Building 543 Premises as more particularly described in section 1(j) of this Amendment (the “Permit”).

(b) Tenant shall: (i) commence construction of the Additional Building promptly after the date on which the Permit is issued to Tenant (the “Permit Issue Date”); (ii) diligently prosecute the same to completion; (iii) comply with all Applicable Laws; (iv) obtain all necessary permits and approvals other than the Permit; and (v) use its reasonable efforts to

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complete the Additional Building as quickly as possible thereafter, which is expected to occur during the Construction Period (as defined below). During the Construction Period, Landlord has agreed to reduce the monthly Base Rent applicable to the Additional Building as set forth on the amended Basic Lease Information attached to this Amendment as Exhibit 1. If the Additional Building is not completed during the Construction Period, Tenant may continue to perform such work thereafter; provided, however, Tenant shall pay the full monthly Base Rent with respect to the Premises. As used in this Amendment, the phrase “Construction Period” means the period of time beginning on the Effective Date and ending on the earlier of: (1) the date on which NASA’s Fire Marshal completes a final inspection of the Additional Building and determines that the Additional Building is substantially complete; or (2) ninety (90) days following the Permit Issue Date.

(c) Tenant does not intend to obtain secured financing in connection with the construction, use or occupancy of the Additional Building. Tenant understands and agrees that Landlord will not subordinate fee title to any financing.

(d) At all times while work on the Additional Building is being performed, and in addition to the insurance coverage required under the Lease, Tenant shall maintain comprehensive “all risk” or “special form” builder’s risk insurance, including vandalism and malicious mischief. Such builder’s risk insurance shall cover all portions of the Additional Building, all materials and equipment stored at the Premises or the Property by Tenant or its agents, employees, contractors, invitees or licensees (collectively, “Tenant’s Related Entities”), and all materials and equipment that are in the process of fabrication at the premises of any third party or that have been placed in due course of transit to the Premises when such fabrication or transit is at the risk of, or when title to or an insurable interest in such materials or equipment, has passed to Tenant or Tenant’s Related Entities (excluding any tools and equipment, and property owned by the employees of Tenant’s Related Entities). Such builder’s risk insurance shall be written on a completed value basis in an amount not less than the full estimated replacement cost of the Additional Building.

(e) Tenant shall perform all work in accordance with all Applicable Laws, the recommendations of Tenant’s geotechnical, environmental, engineering and other construction consultants, and in a good and workmanlike manner using materials of a quality consistent with the nature of the other improvements on the Premises. Tenant shall not construct any buildings or other structures outside the boundaries of the Premises or on, over or above any utilities of Landlord within or crossing the Premises. Tenant shall not use any portion of the Property other than the Premises in connection with the construction of the Additional Building.

(f) Tenant shall prepare and maintain on the Premises (i) on a current basis during the construction of the Additional Building, annotated construction drawings showing clearly all substantive changes, revisions and substitutions during such period of construction, and (ii) upon the substantial completion of the Additional Building, as - built drawings showing clearly all changes, revisions and substitutions during the period of construction, including minor field changes and the final location of all mechanical equipment, utility lines, ducts, outlets, structural members, walls, partitions and other significant features of the work.

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(g) All rights of Landlord to review, comment upon, approve, inspect or take any other action with respect to the Premises, the Additional Building or the design or construction thereof are specifically for the benefit of Landlord and no other party. No review, comment, approval or inspection, required or permitted by, of, or to Landlord hereunder shall give or be deemed to give Landlord any liability, responsibility or obligation for, in connection with, or with respect to, the design, demolition, construction, maintenance, repair, preservation, rehabilitation, reconstruction, restoration or operation of the Premises or the Additional Building, or the removal and/or remediation of any Hazardous Materials on, in or from the Premises, nor shall any such approval or inspection be deemed to relieve Tenant of the sole obligation and responsibility for the design, construction, maintenance, repair, preservation, rehabilitation, reconstruction, restoration, and operation of the Premises (including the Additional Building) and the removal and/or remediation of Hazardous Materials. Similarly, no inspection performed or not performed by Landlord under this Lease shall: (i) give or be deemed to give Landlord any responsibility or liability with respect to the thing inspected, the work or the prosecution thereof, or the design or construction of the work or any part thereof; (ii) constitute or be deemed to constitute a waiver of any of Tenant’s obligations or Tenant’s rights hereunder; or (iii) be construed as approval or acceptance of the thing inspected or the prosecution thereof, or the design or construction of the work or any part thereof.

(h) Tenant shall have no power to do any act or to make any contract that may create or be the foundation for any lien, mortgage or other encumbrance upon the reversion, fee interest or other estate of Landlord or of any interest of Landlord in the Premises. Tenant shall notify all of its contractors that Tenant does not own fee title to the Premises (or any other portion of the Property), and such contractors shall be instructed to record any preliminary notice or other document related to any mechanic’s or materialmen’s liens against only Tenant’s leasehold interest in the Premises and not against fee title to the Property. At least ten (10) days before the date on which construction begins or materials are delivered, Tenant shall give written notice to Landlord of such date of commencement of construction or of the delivery of materials, as the case may be. Landlord shall then have the right to post and maintain on the Premises and other portions of the Property any notices that are required to protect Landlord and Landlord’s interest in the Property from any liens for work and labor performed or materials furnished in completing the Additional Building. Nothing in this Amendment or the Lease shall be deemed to be, or be construed in any way as constituting, the consent of or request by Landlord, expressed or implied, by inference or otherwise, to any person, firm or corporation, for the performance of any labor or the furnishing of any materials for any construction, repairs, maintenance, replacement, alterations or redevelopment of or to the Premises or any part thereof, or as giving Tenant any right, power or authority to contract for or permit the rendering of any services or the furnishing of any materials that might in any way give rise to the right to file any lien against Landlord’s interest in the Premises.

(i) Tenant shall not suffer or permit any liens to stand against the Property or any part thereof by reason of any work, labor, services or materials done for, or supplied to, or claimed to have been done for or supplied to Tenant. Tenant shall keep the Property free and clear of any and all mechanics’, materialmen’s and other liens for work done, services performed, materials supplied or appliances used or furnished in or about the Premises in connection with any activities of Tenant on or about the Premises. If any such lien shall at any

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time be filed, Tenant shall cause the same to be discharged of record within thirty (30) days prior to the date any such lien may be foreclosed upon. If Tenant fails to discharge or contest such lien within such period and such failure shall continue for a period of fifteen (15) days after notice by Landlord, then, in addition to any other right or remedy of Landlord, Landlord may, but shall not be obligated to, procure the discharge of the same either by paying the amount claimed to be due, by deposit in court, or by bonding. All amounts paid or deposited by Landlord for any of the aforesaid purposes, and all other expenses of Landlord and all necessary disbursements in connection therewith, in defending any such action or in procuring the discharge of such lien, shall become due and payable by Tenant to Landlord promptly upon written demand therefor.

(j) Provided that the Permit is issued to Tenant, Landlord hereby gives Tenant permission: (i) to use the Building 543 Premises during the Construction Period as a materials storage and staging area to construct the Additional Building; and (ii) to install on the Building 543 Premises a temporary construction trailer in connection with the construction of the Additional Building. Tenant shall remove the temporary construction trailer from the Property no later than the date which is thirty (30) days after NASA’s Fire Marshal completes a final inspection of the Additional Building and determines that the Additional Building is substantially complete.

(k) Tenant shall construct the Additional Building by engaging contractors that pay the prevailing wages in the area.

(l) Upon the expiration or earlier termination of the Lease, Tenant shall demolish and remove from the Property the Additional Building and all other improvements now or hereafter constructed in connection therewith (including, without limitation, the slab, foundation and other improvements on or under the ground surface) (collectively, the “Removal Work”). Tenant agrees that if Tenant fails to complete the Removal Work, and Landlord incurs any costs in connection therewith, Landlord may apply the Security Deposit to cover such costs.

2. Amendments of the Lease. As of the Effective Date, the parties hereby agree to amend the Lease as follows:

(a) The Basic Lease Information attached to the Lease is hereby deleted and replaced in its entirety with the Basic Lease Information attached to this Amendment as Exhibit 1. Among other things, the amended Basic Lease Information sets forth the monthly Base Rent to be paid during construction of the Additional Building and after its completion.

(b) The site plan depicting the Building 543 Premises attached to the Lease as Exhibit A is hereby deleted and replaced with the site depicting the Building 543 Premises (including the proposed location of the Additional Building) attached to this Amendment as Exhibit 2.

(c) The Support Agreement attached to the Lease as Exhibit C is hereby deleted and replaced with the Support Agreement attached to this Amendment as Exhibit 3.

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(d) Section 4.3 of the Lease is hereby deleted and restated in its entirety as follows:

“4.3 Environmental Requirements. Tenant understands that the Property is underlain by a plume of contaminated groundwater that comprises two Superfund sites: the former Naval Air Station Moffett Field; and the Middlefield-Ellis-Whisman site. Tenant understands that the groundwater is contaminated with solvents and petroleum hydrocarbons. Tenant hereby acknowledges receipt of the environmental reports listed on attached Exhibit D. Tenant hereby agrees that: (a) Tenant shall not conduct, or permit to be conducted, on the Premises any activity which is not a Permitted Activity; (b) Tenant shall not use, store or otherwise handle, or permit any use, storage or other handling of, any Hazardous Material which is not a Permitted Material on or about the Premises; (c) Tenant shall obtain and maintain in effect all permits and licenses required pursuant to any Environmental Law for Tenant’s activities on the Premises, and Tenant shall at all times comply with all applicable Environmental Law; (d) Tenant shall not engage in the storage, treatment or disposal on or about the Premises of any Hazardous Material except for any temporary accumulation of waste generated in the course of Permitted Activities; (e) Tenant shall not install any aboveground or underground storage tank or any subsurface lines for the storage or transfer of any Hazardous Material, except in accordance with Environmental Law, and Tenant shall store all Hazardous Materials in a manner that protects the Premises, the Buildings, the Property and the environment from accidental spills and releases; (f) Tenant shall not cause any (and shall not allow any third party other than Landlord on the Premises during the Term to) release of any Hazardous Material or any condition of pollution or nuisance on or about the Premises, whether affecting surface water or groundwater, air, the land or the subsurface environment; (g) Tenant shall promptly remove from the Premises any Hazardous Material introduced, or permitted to be introduced, onto the Premises by Tenant which is not a Permitted Material and, on or before the date Tenant ceases to occupy the Premises, Tenant shall remove from the Premises all Hazardous Materials and all Permitted Materials handled by or permitted on the Premises by Tenant; (h) if any release of a Hazardous Material to the environment, or any condition of pollution or nuisance, occurs on or about or beneath the Premises or either Building as a result of any act of Tenant or its agents, employees, contractors, invitees or licensees, Tenant, at Tenant’s sole cost and expense, shall promptly undertake all remedial measures required to clean up and abate or otherwise respond to the release, pollution or nuisance in accordance with all applicable Environmental Law; and (i) Tenant shall obtain its own identification number from the United States Environmental Protection Agency (and all applicable state and local agencies) and shall store, handle, transport and dispose of all hazardous waste generated by Tenant

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on or about the Premises in accordance with all applicable Environmental Law. Landlord and Landlord’s representatives shall have the right, but not the obligation, to enter the Premises at any reasonable time for the purpose of inspecting the storage, use and handling of any Hazardous Material on the Premises in order to determine Tenant’s compliance with the requirements of this Lease and applicable Environmental Law. If Landlord gives written notice to Tenant that Tenant’s use, storage or handling of any Hazardous Material on the Premises may not comply with this Lease or applicable Environmental Law, Tenant shall correct any such violation within five (5) days after Tenant’s receipt of such notice from Landlord to the extent required by Environmental Laws. Tenant shall indemnify and defend Landlord against and hold Landlord harmless from all claims, demands, actions, judgments, liabilities, costs, expenses, losses, damages, penalties, fines and obligations of any nature (including reasonable attorneys’ fees and disbursements incurred in the investigation, defense or settlement of claims) that Landlord may incur as a result of, or in connection with, claims arising from the presence, use, storage, transportation, treatment, disposal, release or other handling, on or about or beneath the Premises, of any Hazardous Material existing on or about or beneath the Premises caused by Tenant or its agents, employees, contractors, invitees or licensees (collectively ‘Tenant Contamination’). Landlord hereby agrees to release Tenant from, and shall not charge Tenant for, any liabilities, costs, expenses, losses, damages, penalties, fines or obligations of any nature as a result of, or in connection with any Hazardous Materials existing at the Property that are not Tenant Contamination, except to the extent that Tenant or its employees, agents, contractors or invitees exacerbates or causes a release of any such existing Hazardous Materials. Except for the storage, handling, transportation (including execution of manifests) and disposal of hazardous waste generated by Tenant on or about the Premises, Tenant’s activities that comply with the permitted use of the Premises set forth in the Basic Lease Information will be included in NASA’s sitewide permits and plans, as applicable, such as the Spill Prevention Control and Countermeasures Plan, the Storm Water Pollution Prevention Plan, the above ground storage tank statement, the Sunnyvale Industrial Waste Water permit, the Environmental Resources Document, and the Integrated Natural Resources Management Plan. Coverage in these and other sitewide plans is included in the cost of ISP Services (as defined in section 6.1). Tenant shall promptly supply information to the NASA Environmental Office (Code JQ) that is needed to complete these documents, and comply with the conditions of these permits. Tenant, at its sole cost, is responsible for obtaining an identification number from the United States Environmental Protection Agency, and obtaining hazardous materials storage permits and air permits required by Environmental Law for Tenant’s use of the Premises. The liability of Tenant under this section 4.3 shall survive the termination of this Lease with respect to acts or omissions that occur before such termination.”

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(e) Section 8.2(d) of the Lease is hereby amended by adding the following sentence immediately before the last section of section 8.2(d):

“The Full Insurable Replacement Value of the Additional Building initially shall be four hundred fifty thousand dollars ($450,000.00).”

3. No Other Amendment; Conflicts. Except as set forth in this Amendment, the provisions of the Lease remain in full force. If the provisions of this Amendment conflict with the provisions of the Lease, then the provisions of this Amendment shall prevail.

IN WITNESS WHEREOF, Landlord and Tenant have executed this Amendment as of the Effective Date.

Tenant:		Landlord:
BLOOM ENERGY CORPORATION, a Delaware corporation		NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, an Agency of the United States
By	/s/ William H. Kurtz	By	/s/ S. Pete Worden
	William H. Kurtz Chief Financial Officer		S. Pete Worden Director, Ames Research Center

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EXHIBIT 1 TO FIRST AMENDMENT

NASA AMES RESEARCH CENTER

ENHANCED USE LEASE

Amended Basic Lease Information

Date: November 1, 2012.

Landlord: NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, an Agency of the United States, Ames Research Center located at Moffett Field, California.

Tenant: BLOOM ENERGY CORPORATION, a Delaware corporation.

Premises (section 1.1): (a) The parcel of real property outlined in Exhibit A, containing approximately 73,939 square feet (more or less) of land area, including Building 543 (containing approximately 9,166 square feet (more or less) of building space (“Building 543”)) and all other improvements owned by Landlord thereon (collectively, the “Building 543 Premises”); and (b) all of the space in Building 154 (“Building 154”) outlined in Exhibit A-1, containing approximately 14,359 square feet (more or less) of building area (the “Building 154 Premises”). The Building 543 Premises and the Building 154 Premises are located at NASA Ames Research Center, Moffett Field, California. A site plan showing the locations of the Building 543 Premises and the Building 154 Premises is attached hereto as Exhibit A. Tenant intends to construct an additional building on the Building 543 Premises (the “Additional Building”) in the location depicted on such site plan. Building 543, the Additional Building and Building 154 are individually referred to herein as a “Building” and are collectively referred to herein as the “Buildings.”

Property (section 1.1): The land, the buildings and other improvements known as NASA Ames Research Center, Moffett Field, California 94035-1000.

Term (section 2.1): Approximately three (3) years.

Commencement Date (section 2.1): December 16, 2011.

Expiration Date (section 2.1): December 31, 2014.

Monthly Base Rent (dollars per month) (section 3.1): $42,351.61; provided, however, during the period beginning on November 1, 2012 and ending on January 30, 2013 during which Tenant intends to construct the Additional Building, the monthly Base Rent for the Premises shall be reduced to $41,643.86.

Security Deposit (section 3.3): $40,500.00.

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Rent Payment Address (section 3.7): NASA Shared Service Center (NSSC)- FMD Accounts Receivable Attn: For the Accounts of Ames Research Center (Agreement #SAA2-402658) Bldg. 1111, C Road Stennis Space Center, MS 39529

Permitted Use of the Premises (section 4.1): Bloom Energy will use and occupy the Building 543 Premises solely for research and development, and testing, including as its research laboratory and to test its products. Bloom Energy will use and occupy the Building 154 Premises solely for office purposes; provided, however, Bloom Energy may use rooms 124, 125, 126, 128, 129 and 130 for minor assembly of wiring harnesses and piping.

Landlord’s Address (section 14.1):	NASA Ames Research Center Ms. Mejghan K. Haider, Mail Stop 204 – 2 Bldg. 204, Rm 215 P.O. Box 1 Moffett Field, CA 94035-0001
Tenant’s Address (section 14.1):	Bloom Energy Corporation 1252 Orleans Drive Sunnyvale, CA 94089 Attn: Mr. William H. Kurtz

Exhibit A – Site Plan; Plan Outlining the Building 543 Premises

Exhibit A-1 – Plans Outlining the Building 154 Premises

Exhibit B – Description of the TI Work

Exhibit C – Support Agreement

Exhibit D – List of Environmental Reports

The foregoing Basic Lease Information is incorporated in and made a part of the Lease to which it is attached. If there is any conflict between the Basic Lease Information and the Lease, the Basic Lease Information shall control.

Tenant: BLOOM ENERGY CORPORATION, a Delaware corporation		Landlord: NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, an Agency of the United States
By	/s/ William H. Kurtz	By	/s/ S. Pete Worden
	William H. Kurtz Chief Financial Officer		S. Pete Worden Director, Ames Research Center

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EXHIBIT 2 TO FIRST AMENDMENT

Revised Site Plan; Plan Outlining the Building 543 Premises

(Supersedes Exhibit A to Lease)

This site plan is used solely for the purpose of identifying the approximate location and size of the Premises, including the approximate location and size of the Building 543 Premises and the Restricted Area. Building sizes, site dimensions, access, common and parking areas, and existing tenants and locations are subject to change at Landlord’s discretion.

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EXHIBIT 3 TO FIRST AMENDMENT

Revised Support Agreement

(Supersedes Exhibit C to Lease)

[Consists of three pages immediately following this page]

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SECOND AMENDMENT TO NASA AMES RESEARCH

CENTER ENHANCED USE LEASE

This Second Amendment to NASA Ames Research Center Enhanced Use Lease (the “Amendment”) is made as of August 25. 2014 (the “Effective Date”), by and between the NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, an Agency of the United States, acting by and through Ames Research Center located at Moffett Field, California (“Landlord”), and BLOOM ENERGY CORPORATION, a Delaware corporation (“Tenant”), with reference to the following facts:

A. Landlord and Tenant entered into that certain NASA Ames Research Center Enhanced Use Lease, dated as of December 5, 2011 (SAA2 - 402658) (the “Lease”) Each capitalized term used in this Amendment, but not defined herein, shall have the meaning ascribed to it in the Lease.

B. Tenant duly requested, and Landlord duly approved Tenant’s request to extend the Term as provided in section 2.1(b) of the Original Lease. Tenant has requested that Landlord agree to extend the term for two (2) years. Landlord is willing to extend the Term on the terms and conditions of this Amendment.

NOW, THEREFORE, the parties agree as follows:

1. Amendments of the Lease. As of the Effective Date, the parties hereby agree to amend the Lease as follows:

(a) The Basic Lease Information attached to the Lease is hereby deleted and replaced in its entirety with the Basic Lease Information attached to this Amendment as Exhibit 1. Among other things, the amended Basic Lease Information reflects (1) the extension of the Term such that the Expiration Date is December 31, 2016. (2) the amount of monthly Gross Rent as of the Effective Date.

2. No Other Amendment; Conflicts. Except as set forth in this Amendment, the provisions of the Original Lease remain in full force. If the provisions of this Amendment conflict with the provisions of the Original Lease, then the provisions of this Amendment shall prevail.

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IN WITNESS WHEREOF. Landlord and Tenant have executed this Amendment as of the Effective Date.

Tenant: BLOOM ENERGY CORPORATION, a Delaware corporation		Landlord: NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, an Agency of the United States
By	/s/ William H. Kurtz	By	/s/ S. Pete Worden
	William H. Kurtz Chief Financial Officer		S. Pete Worden Director, Ames Research Center

BE 543 154 EUL 2nd Amend Final 082514		SAA2 – 402658
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EXHIBIT 1 TO SECOND AMENDMENT

NASA AMES RESEARCH CENTER

ENHANCED USE LEASE

Amended Basic Lease Information

Date: August 25, 2014.

Landlord: NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, an Agency of the United States. Ames Research Center located at Moffett Field, California.

Tenant: BLOOM ENERGY CORPORATION, a Delaware corporation.

Premises (section 1.1): (a) The parcel of real property outlined in Exhibit A, containing approximately 73,939 square feet (more or less) of land area, including Building 543 (containing approximately 9,166 square feet (more or less) of building space (“Building 543”)) and all other improvements owned by Landlord thereon (collectively, the “Building 543 Premises”); and (b) all of the space in Building 154 (“Building 154”) outlined in Exhibit A-1, containing approximately 14,359 square feet (more or less) of building area (the “Building 154 Premises”). The Building 543 Premises and the Building 154 Premises are located at NASA Ames Research Center, Moffett Field, California. A site plan showing the locations of the Building 543 Premises and the Building 154 Premises is attached hereto as Exhibit A. Tenant constructed an additional building (approximately 3,375 square feet (more or less) on the Building 543 Premises (the “Additional Building”) in the location depicted on such site plan. Building 543, the Additional Building and Building 154 are individually referred to herein as a “Building” and are collectively referred to herein as the “Buildings.”

Property (section 1.1): The land, the buildings and other improvements known as NASA Ames Research Center, Moffett Field, California 94035-1000.

Term (section 2.1): Approximately five (5) years.

Commencement Date (section 2.1): December 16, 2011.

Expiration Date (section 2.1): December 31, 2016.

Monthly Base Rent (dollars per month) (section 3.1): $31,793.11 (based on $1.02 per square foot per month for Bldg. 543, (b) $1.04 per square foot per month for Bldg. 154, (c) $0.17 per square foot per month for additional land (approximately 44.179 sf) which is the remainder of the total parcel less the normalized parcel for Bldg. 543).

Security Deposit (section 3.3): $40,500.00.

BE 543 154 EUL 2nd Amend Final 082514		SAA2 – 402658
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Rent Payment Address (section 3.7): NASA Shared Service Center (NSSC)- FMD Accounts Receivable Attn: For the Accounts of Ames Research Center (Agreement #SAA2-402658) Bldg. 1111, C Road Stennis Space Center, MS 39529

Permitted Use of the Premises (section 4.1): Bloom Energy will use and occupy the Building 543 Premises solely for research and development, and testing, including as its research laboratory and to test its products. Bloom Energy will use and occupy the Building 154 Premises solely for office purposes; provided, however, Bloom Energy may use rooms 124, 125, 126, 128, 129 and 130 for minor assembly of wiring harnesses and piping.

Landlord’s Address (section 14.1):	NASA Ames Research Center Ms. Mejghan K. Haider, Mail Stop 204 2 Bldg. 204, Rm 215 P.O. Box 1 Moffett Field, CA 94035-0001
Tenant’s Address (section 14.1):	Bloom Energy Corporation 1252 Orleans Drive Sunnyvale, CA 94089 Attn: Mr. William H. Kurtz

Exhibit A – Site Plan; Plan Outlining the Building 543 Premises

Exhibit A-1 – Plans Outlining the Building 154 Premises

Exhibit B – Description of the TI Work

Exhibit C – Support Agreement

Exhibit D – List of Environmental Reports

The foregoing Basic Lease Information is incorporated in and made a part of the Lease to which it is attached. If there is any conflict between the Basic Lease Information and the Lease, the Basic Lease Information shall control.

Tenant: BLOOM ENERGY CORPORATION, a Delaware corporation		Landlord: NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, an Agency of the United States
By	/s/ William H. Kurtz	By	/s/ S. Pete Worden
	William H. Kurtz Chief Financial Officer		S. Pete Worden Director, Ames Research Center

BE 543 154 EUL 2nd Amend Final 082514		SAA2 – 402658
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EXHIBIT 2 TO SECOND AMENDMENT

Revised Site Plan; Plan Outlining the Building 543 Premises

(Supersedes Exhibit A to Lease)

This site plan is used solely for the purpose of identifying the approximate location and size of the Premises, including the approximate location and size of the Building 543 Premises and the Restricted Area. Building sizes, site dimensions, access, common and parking areas, and existing tenants and locations are subject to change at Landlord’s discretion.

BE 543 154 EUL 2nd Amend Final 082514		SAA2 – 402658
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EXHIBIT 3 TO SECOND AMENDMENT

Revised Support Agreement

(Supersedes Exhibit C to Lease)

BE 543 154 EUL 2nd Amend Final 082514		SAA2 – 402658
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SUPPORT AGREEMENT 1 agreement number (Provided by Suppler SAA2-402658 2 superseded agreement no. 6. SUPPLYING ACTIVITY 3 name and ADDRESS National Aeronautics and Space Administration Ames Research Center Morten Field, CA 94035-1000 NRP Business Development Specialist: Cynthia Carbon-Norman D major COMMAND NASA HQ, Science Mission Directorate, Washington DC. 3 effective date October 1. 2014 4. expiration date (May be ‘indefinite’) September 30, 2015 6. RECEIVING ACTIVITY a name AND ADDRESS Bloom Energy Corporation 1252 Orleans Drive Sunnyvale, CA 94089 Attn: William Kurtz C MAJOR COMMAND 7. SUPPORT PROVIDED BY SUPPLIER a SUPPOR (Specify what, when, where, and how much) Modified Net Rent (Includes ISP, except for Additional Land) From 10/01/14 - 12/31/14: Building 543 Premises (9,166 sf@ $1.46 sf/mo) Bldg. 543 Additional Land Area (No ISP, 44,179 sf @ $0.17 sf/mo) Bldg. 154 (14,359 sf @ $1.48 sf/mo) B543 Addition (ISP Only, 3,375 sf @ $0,44 sf/mo) Sub Total From 01/01/15 09/31/15 (3% CPI Increase begins on 01 01/15) Building 543 Premises (9,166 sf @ $1.49 sf/mo) Bidg. 543 Additional Land Area (No ISP, 44.179 sf @ $0.18 sf/mo) Bldg. 154 (14,359 sf @ $1.51 sf/mo) B543 Addition (ISP Only, 3,375 sf (@ $0,44 sf/mo) Sub Total Demand Services (Due in Advance Quarterly): -Utilities Metered, Bldgs 543 & 154 (based on FY14 actual) Facilities Services - Declined Janitorial Services Demand Services Total Grand Total Security Deposit ADDITIONAL SUPPORT REQUIREMENTS ATTACHED Market comps Market comps Market comps C BASIS FOR REIMBURSEMENT C ESTIMATED REIMBURSEMENT $ 40,147.08 $ 22,531.29 $ 63,753.96 $ 4,455.00 $130,88733 $122,916.06 $ 71,569.98 $195,138.81 $ 13,365.00 Actual Cost Actual Cost $402,989.85 $330,000.00 $ 2,000 00 $ -0- Yes $332,000.00 $865,877.18 Paid in FY12, carryover into FY13 $ 40,500.00 No S. SUPPLYING COMPONENT a COMPTROLLER SIGNATURE n/a b DATE SIGNED n/a c. APPROVING AUTHORITY (1) Typed Name Paul Agnew (2) Organization Chief Financial Officer (4) Signature 10. TERMINATION is terminated pnor to scheduled expiration data) (3) Telephone Number (650) 604-1301 (5) Date Signed 9. RECEIVING COMPONENT a COMPTROLLER SIGNATURE n/a b DATE SIGNED n/a c. APPROVING AUTHORITY (1) Typed Name William H. Kurtz. Chief Financial Officer (2) Organization Bloom Energy Corporation (4) Signature (3) Telephone Number (408) 543-1550 (5) Date Signed 3 APPROVING AUTHORITY SIGNATURE D DATE SIGNED a APPROVING AUTHORITY SIGNATURE D DATE SIGNED 00 FORM 1144, NOV 2001 PREVIOUS EOTIONS MAY BE USED Page 1 of 3

11. GENERAL PROVISIONS (Complete blank spaces and add additional general provision as appropriate e.g. exceptions to printed provisions, additional paths to this agreement, billing and reimbursement instructions) a. The receiving components will provide the supplying component projections of requested support (significant changes in the receiving components support requirements should be submitted to the supplying component in a manner that will permit timely modification of resources requirements) b. It is the responsibility of supplying component to bring any required change in support to the attention of prior to changing or cancelling support c. The component providing reimbursable support in this agreement will submit statements of costs to d. All rates expressing the unit cost of services provided in this agreement are base on current rates which may be subject to change for uncontrollable reasons, such as legislation, DoD directives, and commercial utility rate increases The receiver will be notified immediately of such rate changes that must be passed through to the support receivers e. This agreement may be cancelled at any time by mutual consent of the parties concerned This agreement may also be canceled by either party upon giving at least 180 days written notice to the other party f. In case of mobilization or other emergency this agreement remain in force only within supplier’s capabilities ADDITIONAL SUPPORT REQUIERMENTS ATTACHED Yes No 12. SPACIFIC PROVISION (As a appropriate e.g. location n and size of occupied facilities, unique support and receiver responsibilities conditions, requirements, quantity standards, and catena for measurement/ reimbursement of unique requirements ) ADDITONAL SUPPORT REQUIREMENTS ATTACHED Yes No DD FORM 1144 MOV 2001 PREVIOUS EDITIONS MAY BE USED Page 2 of 3

13. ADDITIONAL PROVISIONS (Use this space to continue general and/or specific provisions as needed)
DD FORM 1144, NOV 2001	PREVIOUS EDITIONS MAY BE USED	Page 3 of 3

EX-10

Exhibit 10.7

TA ASSOCIATES REALTY MEMORANDUM

To: Rick Foreman

Ion America

From: Eva St. Clair

Date: April 8, 2005

Re: Orleans—Ion America Corporation

1252 Orleans Drive

Enclosed please find one copy of the Lease for the above referenced property.

If I can be of any further assistance, please contact me at (949) 852-2030.

STANDARD INDUSTRIAL LEASE

(Multiple Tenant – Tenant Pays its Percentage Share of Operating Expenses,

Real Property Taxes and Insurance Costs – NO Base Year)

1. BASIC LEASE PROVISIONS.

1.1      DATE:	April 5, 2005
1.2      LANDLORD:	The Realty Associates Fund III, L.P., a Delaware limited partnership
1.3      TENANT:	Ion America Corporation, a Delaware corporation
1.4      PREMISES ADDRESSES:	1252 Orleans Drive, Sunnyvale, California
1.5      APPROXIMATE LEASABLE AREA OF PREMISES: (in square feet)	50,000
1.6      USE:	General office, research and development, manufacturing and any other use permitted by applicable laws and regulations
1.7      TERM:	Five (5) years and seven (7) months
1.8      COMMENCEMENT DATE:	June 1, 2005
1.9      MONTHLY BASE RENT:	June 1, 2005 through December 31, 2005;           $0; January 1, 2006 through December 31, 2006:      $60,000.00; January 1, 2007 through December 31, 2007:      $61,200.00; January 1, 2008 through December 31, 2008:      $62,424.00; January 1, 2009 through December 31, 2009:      $63,672.48; and January 1, 2010 through December 31, 2010:      $64,945.93;
1.10    BASE RENT PAID UPON              EXECUTION:	$60,000.00
APPLIED TO: (insert month(s))	January 2006 Base Rent
1.11    TENANT’S PERCENTAGE SHARE:	Percentage of Project:            50% Percentage of Premises:        100% See also section 6.4.
1.12    SECURITY DEPOSIT:	None. (See letter of credit provisions in Addendum to Lease)
1.13    NUMBER OF PARKING SPACES:	175
1.14    REAL ESTATE BROKER:
LANDLORD:	CB Richard Ellis Real Estate Services, Inc.
TENANT:	Tory Corporate Real Estate Advisors, Inc. (dba The Staubach Company)
1.15    EXHIBITS ATTACHED TO LEASE:	Exhibit A – “Premises;” Exhibit B – “Verification Letter;” Exhibit C – “Rules and Regulations;” Exhibit D – “Form of HazMat Certificate”; Exhibit E – “Work Letter Agreement”; Exhibit F – “Addendum to Lease”
1.16    ADDRESSES FOR NOTICES:
LANDLORD:	The Realty Associates Fund III, L.P. c/o TA Associates Realty 1301 Dove Street, Suite 860 Newport Beach, California 92660 Attn: Asset Manager/Orleans
WITH A COPY TO:	CB Richard Ellis, Inc. 225 West Santa Clara Street, Suite 1050 San Jose, California 95113 Attention: Property Manager/Orleans
TENANT:	Prior to the Commencement Date: Ion America NASA Research Park PO Box 97 Moffett Field, CA 94035
	Following the Commencement Date: at the Premises

2. PREMISES.

2.1 ACCEPTANCE. Landlord leases to Tenant, and Tenant leases from Landlord, the Premises, to have and to hold for the term of this Lease, subject to the terms, covenants and conditions of this Lease. The Premises is depicted on Exhibit “A” attached hereto. The Premises depicted on Exhibit “A” contains a building (the “Building”). The number of square feet set forth in section 1.5 is an approximation, and the Base Rent shall not be changed if the actual number of square feet in the Premises is different than the number of square feet set forth in section 1.5.

2.2 CONDITION.

(a) Except as otherwise expressly provided in this Lease, Tenant accepts the Premises in its condition on the date Landlord delivers possession of the Premises to Tenant (the “Delivery Date”), subject to all applicable laws, ordinances, regulations, covenants, conditions, restrictions and easements, and except as may be otherwise expressly provided in this Lease, Landlord shall not be obligated to make any repairs or alterations to the Premises.

(b) Landlord represents and warrants to Tenant that on the Delivery Date the following parts of the Premises shall be in working order and in good repair, (a) plumbing systems, (b) electrical systems, (c) the roof, (d) all HVAC units, (e) the structural components of the Building, and (f) site parking areas (collectively, the “Building Systems”).

(c) Landlord warrants that on the Delivery Date the Building will comply with the requirements of the Americans With Disabilities Act and Title 24 of the California Code of Regulation (collectively, “ADA Requirements”) that are in effect as of the Delivery Date. In determining whether or not the Building complies with the ADA Requirements in effect on the Delivery Date, Landlord and Tenant shall assume that Tenant will occupy the Premises in its “as is” condition and without respect to any modification of the Premises to be made by Tenant (e.g., prior to the construction of the Tenant Improvements (as defined in the Work Letter Agreement) and prior to the construction of any Alternations (as defined below)).

(d) In the event that it is determined that a warranty set forth in (b) or (c) above is untrue, Landlord shall not be in default under the Lease if after Landlord receives written notice of the representation or warranty that is untrue, Landlord promptly takes the actions, at Landlord’s sole expense, necessary to put the applicable Building System in working order or to comply with the applicable ADA Requirement. The representations and warranties set forth in (b) and (c) above shall apply only to the condition of the Building Systems and compliance with the ADA Requirements as of the Delivery Date, and shall not apply to any point in time thereafter. Tenant shall notify Landlord in writing (the “Warranty Notice”) within ninety (90) days after the Commencement Date, time being of the essence. (the “Notice Date”) of each way, if any, that the forgoing representations and warranties were untrue on the Delivery Date (an “Untrue Warranty”). The Warranty Notice shall state the specific way in which one or more Building System was not in working order on the Delivery Date or in which the Building did not comply with ADA Requirements on the Delivery Date. Landlord shall have no responsibility to repair any Building System or to comply with any ADA Requirement unless Tenant notifies Landlord on or before the Notice Date in a Warranty Notice of the Untrue Warranty, and if Tenant notifies Landlord that a Building System was not in working order or that the Building did not comply with an ADA Requirement after the Notice Date. Landlord shall have no obligation pursuant to this section to repair the Building System that is not in working order or to comply with the ADA Requirement.

2.3 COMMON AREAS. Landlord hereby grants to Tenant for the benefit of Tenant and its employees, suppliers, shippers, customers and invitees during the term of this Lease, the nonexclusive right to use. In common with others entitled to such use (including Landlord), the Common Areas (as hereinafter defined) as they exist from time to time, subject to all rights reserved by Landlord hereunder and under the terms of all rules and regulations promulgated by Landlord from time to time with respect thereto. Landlord reserves the right from time to time to (a) make changes in the Common Areas, including, without limitation, changes in location, size, shape and number of driveways, entrances, parking spaces, parking areas, loading and unloading areas, ingress, egress, direction of traffic, landscaped areas and walkways; (b) close temporarily any of the Common Areas for maintenance purposes so long as reasonable access to the Premises remains available; (c) construct additional buildings, parking areas, loading dock facilities and other improvements within the Common Areas; and (d) do and perform such other acts and make such other changes in, to or with respect to the Common Areas as Landlord may deem appropriate, provided, however that the foregoing actions by Landlord in subsections (a)-(d) of this Section 2.3 do not materially decrease Tenant’s rights under the Lease (including parking rights) and do not materially increase the obligations of Tenant under the Lease. As used herein, the term “Common Areas” means all areas and facilities outside the Premises and other buildings on the land owned by Landlord adjacent to the Premises and within the exterior boundary lines of such land, including, parking areas, loading and unloading areas, trash areas, roadways, sidewalks, walkways, parkways, the amphitheatre, volleyball court and landscaped areas. The Premises, the Building, the Common Areas, the land upon which the same are located, along with all other buildings and improvements thereon, are herein collectively referred to as the “Project” Under no circumstances shall the right herein granted to use the Common Areas be deemed to include the right to store any property, temporarily or permanently, in the Common Areas, including, without limitation, the storage of trucks or other vehicles. Any such storage shall be permitted only by the prior written consent of Landlord, which consent may be revoked at any time. In the event that any unauthorized storage shall occur then Landlord shall have the right, without notice, in addition to such other rights and remedies that it may have, to remove the property and charge the cost to Tenant, which cost shall be immediately payable upon demand by Landlord.

3. TERM.

3.1 TERM AND COMMENCEMENT DATE. The term and Commencement Date of this Lease are as specified in sections 1.7 and 1.8.

3.2 TENDER OF POSSESSION. Possession of the Premises shall be deemed tendered to Tenant when Landlord has offered Tenant possession of the Premises.

3.3 EARLY POSSESSION. Within one (1) business day following the mutual execution of this Lease, Landlord shall provide Tenant with possession of the Premises. If Landlord provides Tenant with possession of the Premises prior to the Commencement Date, the Commencement Date of this Lease shall not be changed as a result thereof., Tenant shall have no obligation between the date that Landlord provides Tenant with possession of the Premises and the Commencement Date (the “Pre-Commencement Date Period”), (a) to pay Base Rent, Operating Expenses or Real Property Taxes or (b) to pay the cost of electricity, gas and other utilities consumed at the Premises. On or before the last day of the Pre-Commencement Date Period, Tenant shall contact the applicable public utilities and place all utilities in Tenant’s name, and after the last day of the Pre-Commencement Date Period Tenant shall be obligated to pay for all utilities consumed at the Premises. Except as otherwise provided in this Section 3.3. Tenant’s use of the Premises during the Pre-Commencement Date Occupancy Period shall be subject to all provisions of this Lease including, but not limited to, section 10.

4. USE.

4.1 PERMITTED USE. The Premises shall be used only for the purpose described in section 1.6 and for no other purpose. Landlord makes no representation or warranty that Tenant’s use is permitted by applicable zoning laws or other laws and regulations. In no event shall any portion of the Premises be used for retail sales. Tenant shall not initiate, submit an application for, or otherwise request, any land use approvals or entitlements with respect to the Premises or any other portion of the Project, including, without limitation, any variance, conditional use permit or rezoning, without first obtaining Landlord’s prior written consent, which may be given or withheld in Landlord’s sole discretion, provided that with respect to any variances requested for Tenant’s particular use of the Premises. Landlord agrees that its consent shall not be unreasonably withheld or delayed. Tenant shall not (a) permit any animals or pets to be brought to or kept in the Premises, (b) make any penetrations into the roof of the Building except as otherwise permitted in this Lease, (c) place loads upon floors, walls or ceilings in excess of the load such items were designed to carry, (d) place or store, nor permit any other

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person or entity to place or store, any property, equipment, materials, supplies or other items outside of the Building in which the Premises is located, other than a pad for above ground storage tank for the Generator (as defined in the Addendum to this Lease) and the Generator itself, as well as for temporary use of the parking area adjacent to the Premises for equipment and materials required for the installation of Tenant Improvements (as defined in Exhibit “E” attached hereto) or (d) change the exterior of the Premises or the Building in which the Premises is located. Tenant acknowledges that Landlord has made no representation or warranty as to the suitability of the Premises for the conduct of Tenant’s business, and Tenant waives any implied warranty that the Premises are suitable for Tenant’s intended purposes.

4.2 COMPLIANCE WITH LAWS.

(a) Except as otherwise expressly provided to the contrary in this Lease. Tenant shall, at Tenant’s sole expense, promptly comply with all applicable laws, ordinances, rules, regulations, orders, certificates of occupancy, conditional use or other permits, variances, covenants, conditions, restrictions, easements, the reasonable recommendations of Landlord’s engineers or other consultants, and requirements of any fire insurance underwriters, rating bureaus or government agencies, now in effect or which may hereafter come into effect, whether or not they reflect a change in policy from that now existing, during the term or any part of the term hereof, relating in any manner to the Premises or the occupation and use by Tenant of the Premises, provided that with respect to such compliance, in no event shall Tenant be responsible for performing or paying for the cost (whether as Operating Expenses or otherwise) of any Capital Modification (as defined below) to (i) any Structural Elements (as defined in Section 11.1 below) unless caused by Tenant’s alterations or improvements to the Premises, (ii) except as provided in 4.2(b) below, any exterior portion of the Building or Premises, and (iii) any items for which Landlord is responsible pursuant to Sections 2.2(b) and (c) above. Except as otherwise expressly provided to the contrary in this Lease. Tenant shall, at Tenant’s sole expense, comply with all requirements of the Americans With Disabilities Act that relate to the Premises, and all federal, state and local laws and regulations governing occupational safety and health. Notwithstanding anything to the contrary contained in this Lease, in no event shall Landlord be obligated to modify any improvement to the Project made by Tenant in order to cause such an improvement to comply with any law or regulation, and Tenant shall be obligated to modify such improvements to comply with laws and regulations at Tenant’s sole cost and expense. Tenant shall not permit any objectionable or unpleasant odors, smoke, dust, gas, noise or vibrations to emanate from the Premises, or take any other action that would constitute a nuisance or would disturb, unreasonably interfere with or endanger Landlord or any other tenants of the Project. Tenant shall obtain, at its sole expense, any permit or other governmental authorization required to operate its business from the Premises. Landlord shall not be liable for the failure of any other tenant or person to abide by the requirements of this section or to otherwise comply with applicable laws and regulations, and Tenant shall not be excused from the performance of its obligations under this Lease due to such a failure. For the purposes of this section 4.2(a), a “Capital Modification” shall mean an improvement or modification that meets all of the following conditions: (a) it is an improvement or modification that has not been installed or modified by Tenant (e.g., modifications to the Tenant Improvements (as defined in the Work Letter Agreement) shall not constitute a Capital Modification), (b) the cost of the improvement or modification cannot be deducted in the year incurred in accordance with generally accepted accounting principals, (c) the improvement or modification is not triggered by a change in use by Tenant and (d) the improvement or modification is not triggered by an improvement or modification Tenant desires to make to the Premises.

(b) Notwithstanding the foregoing, if there is a new requirement applicable to the exterior of the Building (e.g., the parking area) contained in a law or regulation which was not adopted or enacted until after the delivery to Tenant of possession of the Premises, or which is a change in an existing law or regulation to the extent such change is first adopted or enacted after the delivery of the Premises to Tenant (collectively, a “New Law”), and a Exterior Capital Modification (as defined below) to the portion of the Premises outside the Building is required by the New Law then Landlord shall make such improvements and modifications so required to be made during the term of this Lease under such New Law, at Landlord’s sole cost and expense and such cost shall not be included in Operating Expenses. For purposes of this section, an “Exterior Capital Modification” shall mean an improvement or modification to the portion of the Premises outside the Building that meets all of the following conditions: (a) it is an improvement or modification to an improvement or alteration that has not been installed by Tenant (e.g., modifications to the Tenant Improvements (as defined in the Work Letter Agreement) shall not constitute an Exterior Capital Modification) and (b) the cost of the improvement or modification cannot be deducted in the year incurred in accordance with generally accepted accounting principals. If a New Law requires an improvement or modification of the Premises, but the improvement or modification does not constitute an Exterior Capital Modification, the cost of the improvement or modification shall be paid by Tenant, at Tenant’s sole cost and expense.

5. BASE RENT. Tenant shall pay Base Rent in the amount set forth on the first page of this Lease. The first month’s Base Rent shall be due and payable on the date this Lease is executed by Tenant, and Tenant promises to pay to Landlord in advance, without demand, deduction or set-off, monthly installments of Base Rent on or before the first day of each calendar month succeeding the Commencement Date. Payments of Base Rent for any fractional calendar month shall be prorated. All payments required to be made by Tenant to Landlord hereunder shall be payable at such address as Landlord may specify from time to time by written notice delivered in accordance herewith. Tenant shall have no right at any time to abate, reduce, or set off any rent due hereunder except where expressly provided in this Lease.

6. OPERATING EXPENSE PAYMENTS.

6.1 OPERATING EXPENSES. Tenant shall pay Tenant’s Percentage Share (as defined below) of the Operating Expenses for the Project. For the purposes of this Lease, and subject to the exclusions described in section 6.2, the term “Operating Expenses” shall mean all expenses and disbursements of every kind (subject to the limitations set forth below) which Landlord incurs, pays or becomes obligated to pay in connection with the ownership, operation, and maintenance of the Project (including the associated Common Areas), including, but not limited to, the following:

(a) wages and salaries (including management fees) of all employees, agents, consultants and other individuals or entities engaged in the operation, repair, replacement, maintenance, and security of the Project, including taxes, insurance and benefits relating thereto:

(b) all supplies and materials used in the operation, maintenance, repair, replacement, and security of the Project;

(c) annual cost of all Capital Improvements (as defined below) made to the Project which although capital in nature can reasonably be expected to reduce the normal operating costs of the Project, as well as all Capital Improvements made in order to comply with any law now or hereafter promulgated by any governmental authority, as amortized over the useful economic life of such improvements as determined by Landlord in its reasonable discretion (without regard to the period over which such improvements may be depreciated or amortized for federal income tax purposes). Capital Improvements shall not include any expenditure incurred by Landlord to maintain the structural elements of the roof of the Building (excluding the roof membrane), the structural soundness of the foundation of the Building, the structural elements of the exterior walls of the Building and the structural elements of existing interior load bearing walls of the Building (excluding any load bearing walls constructed by Tenant, which Tenant shall maintain and repair at Tenant’s sole expense), and the cost of such items shall be paid by Landlord, at Landlord’s sole cost and expense;

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(d) cost of all utilities paid by Landlord;

(e) cost of any insurance or insurance related expense applicable to the Project and Landlord’s personal property used in connection therewith, including, but not limited to, the insurance costs described in section 10.2;

(f) cost of repairs, replacements and general maintenance of the Project (including all truck court areas, paving and parking areas, Common Area lighting facilities, fences, gates, water lines, sewer lines, rail spur areas and any other item Landlord is obligated to repair or maintain), other than costs necessary to assure the structural soundness of the roof, foundation and exterior walls of the Project which are payable solely by Landlord under section 11;

(g) cost of service or maintenance contracts with independent contractors for the operation, maintenance, repair, replacement or security of the Project (including, without limitation, alarm service, exterior painting, trash collection, snow, ice, debris and waste removal and landscape maintenance);

(h) the cost of all accounting fees, management fees, legal fees and consulting fees attributable to the operation, ownership, management, maintenance or repair of the Project;

(i) payments made by Landlord under any easement, license, operating agreement, declaration, restrictive covenant or other agreement relating to the sharing of costs among property owners;

(j) the cost of all business licenses, permits or similar fees relating to the operation, ownership, repair or maintenance of the Project;

(k) the cost of any other item the cost of which is stated in this Lease to be an Operating Expense;

(I) Real Property Taxes; and

(m) subject the limitation described in section 6.6 below, the cost of resurfacing asphalt and concrete driveways and parking areas.

For purposes of this Lease, a “Capital Improvement” shall be an improvement to the Project that Landlord is obligated or permitted to make pursuant to this Lease, the cost of which is not fully deductible in the year incurred in accordance with generally accepted accounting principles; provided, however, that, at Landlord’s option, the following items shall be treated as expenses and not Capital Improvements: (i) the cost of painting all or part of the Project and (ii) the cost of any items Tenant is obligated to pay for pursuant to section 12.1 that Landlord elects, in its sole discretion, to include in Operating Expenses. References to facilities, services, utilities or other items in this section shall not impose an obligation on Landlord to have said facilities or to provide said services unless such facilities and services already exist at the Project.

6.2 OPERATING EXPENSE EXCLUSIONS. Notwithstanding anything to the contrary contained herein, for purposes of this Lease, the term “Operating Expenses” shall not include the following: (i) costs (including permit, license and inspection fees) incurred for tenant improvements for other tenants within the Project; (ii) legal and auditing fees (other than those fees reasonably incurred in connection with the maintenance and operation of all or any portion of the Project), leasing commissions, advertising expenses and similar costs incurred in connection with the leasing of the Project; (iii) depreciation of the Building or any other improvements situated within the Project; (iv) any items for which Landlord is actually reimbursed by insurance or by direct reimbursement by any other tenant of the Project; (v) costs of repairs or other work necessitated by fire, windstorm or other casualty (excluding any deductibles) and/or costs of repair or other work necessitated by the exercise of the right of eminent domain to the extent insurance proceeds or a condemnation award, as applicable, is actually received by Landlord for such purposes; provided, such costs of repairs or other work shall be paid by the parties in accordance with the provisions of sections 11 and 12, below; (vi) other than any interest charges for Capital Improvements referred to in section 6.1(c) hereinabove, any interest or payments on any financing for the Building or the Project and interest and penalties incurred as a result of Landlord’s late payment of any invoice; (vii) costs associated with the investigation and/or remediation of Hazardous Materials (hereafter defined) present in, on or about any portion of the Project, unless such costs and expenses are the responsibility of Tenant as provided in section 27 hereof, in which event such costs and expenses shall be paid solely by Tenant in accordance with the provisions of section 27 hereof; (viii) overhead and profit increment paid to Landlord or to subsidiaries or affiliates of Landlord for goods and/or services in the Project to the extent the same exceeds the costs of such by unaffiliated third parties on a competitive basis; provided, however, in no event shall the property management fee exceed two percent (2%) of the Base Rent collected by Landlord; (ix) any payments under a ground lease or master lease; (x) costs for Capital Improvements, except as specifically permitted in this Lease; (xi) increases in insurance costs caused by the unique activities of another occupant of the Project and insurance deductibles in excess of Twenty-Five Thousand Dollars per occurrence; (xii) advertising and promotional costs; (xiii) costs for which Landlord is responsible pursuant to Sections 2.2(b) and (c) above, and (xiv) Real Property Taxes, assessments, all other governmental levies, and any increases in the foregoing occasioned by or relating to: (A) land and improvements not reserved for Tenant’s exclusive or nonexclusive use. (B) construction of improvements for other occupants of the Project or (C) a voluntary or involuntary change of ownership or other conveyance of the real property of which the Premises is a part (i) to any person or entity owned or controlled by Landlord or the partners, officers or directors of Landlord or (ii) in connection with estate planning of Landlord or the partners, officers or directors of Landlord or (iii) which is not a bona fide, arm’s length sale to an unrelated third party. There shall be no limitation on increases in Real Property Taxes resulting from one or more bona fide, arms length sales of the Property to unrelated third parties, and increases in Real Property Taxes resulting from such sales shall be payable by Tenant to Landlord as provided in this Lease.

6.3 PAYMENT. Tenant’s Percentage Share of Operating Expenses shall be payable by Tenant within thirty (30) days after a reasonably detailed statement of actual expenses is presented to Tenant by Landlord. At Landlord’s option, however, Landlord may, from time to time, reasonably estimate what Tenant’s Percentage Share of Operating Expenses will be, and the same shall be payable by Tenant monthly during each calendar year of the Lease term, on the same day as the Base Rent is due hereunder. In the event that Tenant pays Landlord’s estimate of Tenant’s Percentage Share of Operating Expenses, Landlord shall use its best efforts to deliver to Tenant within one hundred eighty (180) days after the expiration of each calendar year a reasonably detailed statement (the “Statement”) showing Tenant’s Percentage Share of the actual Operating Expenses incurred during such year. If Landlord has not delivered a Statement to Tenant within one hundred fifty (150) days after the expiration of the preceding calendar year, Tenant shall have the right to give Landlord written notice of such failure (a “Tenant Notice”), and Landlord’s failure to provide the Statement to Tenant within thirty (30) days after Landlord receives the Tenant Notice shall be a breach by Landlord of its obligations under this Lease. To be effective, the Tenant Notice must specifically state that Landlord’s failure to provide the Statement to Tenant within thirty (30) days after Landlord’s receipt of the Notice will constitute a breach of the Lease by Landlord and the Tenant Notice must refer specifically to this section of the Lease. Landlord’s failure to deliver the Statement to Tenant within said period shall not constitute Landlord’s waiver of its right to collect said amounts or otherwise prejudice Landlord’s rights hereunder. If Tenant’s payments under this section during said calendar year exceed Tenant’s Percentage Share as indicated on the Statement. Tenant shall be entitled to credit the amount of such overpayment against Base Rent and Tenant’s Percentage Share of Operating Expenses next falling due. If Tenant’s payments under this section during said calendar year ware less than Tenant’s Percentage Share as indicated on the Statement, Tenant shall pay to Landlord the amount of the deficiency within thirty (30)

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days after delivery by Landlord to Tenant of the Statement. Landlord and Tenant shall forthwith adjust between them by cash payment any balance determined to exist with respect to that portion of the last calendar year for which Tenant is responsible for Operating Expenses, notwithstanding that the Lease term may have terminated before the end of such calendar year; and this provision shall survive the expiration or earlier termination of the Lease.

6.4 TENANT’S PERCENTAGE SHARE.

(a) Landlord shall allocate one hundred percent (100%) of an Operating Expense to Tenant if the Operating Expense relates solely to the Premises. If an Operating Expense does not relate solely to the Premises, Tenant’s Percentage Share of such expense shall be Fifty Percent (50%) reflecting a fraction, the numerator of which is the number of square feet of leasable space in the Premises and the denominator of which is the number of square feet of leasable space in all buildings in the Project. In the event that additional square footage is added to the Project, Tenant’s Percentage Share shall be adjusted accordingly. Landlord shall allocate Operating Expenses that do not relate solely to the Premises in a commercially reasonable and good faith manner.

(b) Except as provided in (c) below, Tenant acknowledges that the legal parcel upon which the Premises is located separately assessed for Real Property Taxes, and that Tenant shall pay one hundred percent (100%) of the Real Property Taxes assessed against the legal parcel upon which the Premises is located.

(c) Notwithstanding the forgoing, between June 1, 2005 and December 31, 2005, Tenant’s Percentage Share of the of the Operating Expenses relating solely to the Premises and Real Property Taxes shall be sixty percent (60%), and Tenant’s Percentage Share of the of the Operating Expenses that do not relate solely to the Premises shall be thirty percent (30%). From and after January 1, 2005. Tenant’s Percentage Share of the Operating Expenses and Real Property Taxes shall be determined in accordance with (a) and (b) above.

6.5 AUDITS. If Tenant disputes the amount set forth in the Statement, Tenant shall have the right, at Tenant’s sole expense, not later than sixty (60) days following receipt of such Statement, to review Landlord’s books and records with respect to the calendar year which is the subject of the Statement. In addition, if Tenant disputes the amount set forth in the Statement, Tenant shall have the right, at Tenant’s sole expense, not later than ninety (90) days following receipt of such Statement, to cause Landlord’s books and records with respect to the calendar year which is the subject of the Statement to be audited by a certified public accountant mutually acceptable to Landlord and Tenant, provided that for the purposes of this Lease, any of Price-Waterhouse-Coopers, Ernst and Young, Deloitte and Touche and KPMG shall be deemed acceptable. The audit shall take place at the offices of Landlord where its books and records are located at a mutually convenient time during Landlord’s regular business hours. If the audit is performed by a mutually acceptable certified public accountant. Tenant’s Percentage Share of Operating Expenses shall be appropriately adjusted based upon the results of such audit, and the results of such audit shall be final and binding upon Landlord and Tenant. Tenant shall have no right to conduct an audit or to give Landlord notice that it desires to conduct an audit at any time Tenant is in default under the Lease beyond any applicable cure period. The accountant conducting the audit shall be compensated on an hourly basis and shall not be compensated based upon a percentage of overcharges it discovers. No subtenant shall have any right to conduct an audit, and no assignee shall conduct an audit for any period during which such assignee was not in possession of the Premises. Tenant’s right to undertake an audit with respect to any calendar year shall expire ninety (90) days after Tenant’s receipt of the Statement for such calendar year, and such Statement shall be final and binding upon Tenant and shall, as between the parties, be conclusively deemed correct, at the end of such ninety (90) day period, unless prior thereto Tenant shall have given Landlord written notice of its intention to audit Operating Expenses for the calendar year which is the subject of the Statement. If Tenant gives Landlord notice of its intention to audit Operating Expenses. It must commence such audit within sixty (60) days after such notice is delivered to Landlord, and the audit must be completed within one hundred twenty (120) days after such notice is delivered to Landlord. If Tenant does not commence and complete the audit within such periods, the Statement which Tenant elected to audit shall be deemed final and binding upon Tenant and shall, as between the parties, be conclusively deemed correct. Tenant agrees that the results of any Operating Expense audit shall be kept strictly confidential by Tenant and shall not be disclosed to any other person or entity. If as a result of an audit, it is determined that Landlord has overstated the Operating Expenses owed by Tenant on a Statement by more than five percent (5%) of the actual Operating Expenses owed by Tenant. Landlord shall reimburse Tenant for the reasonable out of pocket costs Tenant paid to unrelated third parties for the performance of the audit.

6.6 AMORTIZATION OF CERTAIN IMPROVEMENTS. Pursuant to sections 6.1 and 12 of this Lease, Landlord has the right to require Tenant to pay for certain costs related to the replacement of the roof membrane and HVAC units at the Building and the resurfacing of the asphalt and concrete driveways and parking areas of the Project (collectively, the “Major Items”). Notwithstanding anything to the contrary contained in sections 6.1 and 12, if Landlord replaces a Major Item, and in accordance with GAAP, the cost of the replacement is not deductible as an expense in the year incurred. Landlord shall amortize the cost of the replacement of the Major Item over its useful life, as reasonably determined by Landlord, and Tenant shall only be obligated to reimburse Landlord each year for its Percentage Share of such amortized cost. Landlord shall have no obligation to amortize repairs or maintenance items relating to the Major Items that are deductible in the year incurred in accordance with GAAP, and all such repair and maintenance costs shall be payable by Tenant to Landlord as Operating Expenses in the year incurred. Notwithstanding anything to the contrary in this Lease, in no event shall Tenant be obligated to pay more than Fifty Thousand Dollars ($50,000) in the aggregate in any one year for such amortized costs.

7. Intentionally deleted.

8. UTILITIES.

8.1 PAYMENT. From and after the last day of the Pre-Commencement Date Period, Tenant shall pay for all water, gas, electricity, telephone, sewer, sprinkler services, refuse and trash collection and other utilities and services used on the Premises, together with any taxes, penalties, surcharges or the like pertaining thereto. Tenant shall contract directly with the applicable public utility for such services.

8.2 INTERRUPTIONS. Subject to Tenant’s rights under section 8.5 below, Tenant agrees that Landlord shall not be liable to Tenant for its failure to furnish water, gas, electricity, telephone, sewer, refuse and trash collection or any other utility services or building services when such failure is occasioned, in whole or in part, by repairs, replacements or improvements, by any strike, lockout or other labor trouble, by inability to secure electricity, gas, water, telephone service or other utility at the Project, by any accident, casualty or event arising from any cause whatsoever, by act, negligence or default of Tenant or any other person or entity, or by any other cause, and such failures shall never be deemed to constitute an eviction or disturbance of Tenant’s use and possession of the Premises or relieve Tenant from the obligation of paying rent or performing any of its obligations under this Lease; provided, however, the forgoing shall not release Landlord from liability arising out of the gross negligence or willful misconduct of Landlord and Landlord’s agents. Furthermore, subject to Tenant’s rights under section 8.5 below, Landlord shall not be liable under any circumstances for loss of property or for injury to, or interference with, Tenant’s business, including, without limitation, loss of profits, however occurring, through or in connection with or incidental to a failure to furnish any such services or utilities. Landlord may comply with voluntary controls or guidelines promulgated by any governmental entity relating to the use or conservation of energy, water, gas, light or electricity or the reduction of automobile or other emissions without creating any liability of Landlord to Tenant under this Lease, so long as such compliance does not interfere with Tenant’s use of the Premises or increase Tenant’s costs hereunder.

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8.3 RAILROAD SPURS. If the Premises is served by a railroad spur, Tenant shall execute any agreement required by the railroad company serving the railroad spur, and such agreement shall be satisfactory to Landlord, in Landlord’s sole discretion. Tenant shall pay the cost of maintaining the railroad spur, at Tenant’s sole cost and expense.

8.4. ALTERNATIVE UTILITY PROVIDERS. If permitted by applicable laws, Landlord shall have the right at any time and from time to time during the term of this Lease to either contract for service from a different company or companies (each such company referred to as an “Alternate Service Provider”) other than the company or companies presently providing electrical service for the Project (the “Electric Service Provider”) or continue to contract for service from the Electric Service Provider, at Landlord’s sole discretion, but only so long as such Tenant’s utility costs do not increase, or Tenant’s utility availability change as a result of such change. Tenant agrees to cooperate with Landlord, the Electric Service Provider, and an Alternate Service Provider at all times and, as reasonably necessary, shall allow Landlord, the Electric Service Provider, and any Alternate Service Provider reasonable access to the Building’s electric lines, feeders, risers, wiring and any other machinery within the Premises. Notwithstanding anything to the contrary contained herein. Landlord agrees and acknowledges that Tenant is in the business of stationary power generation, and that so long as there is no increased cost to Landlord (or so long as Tenant adequately secures the payment of any increased costs to Landlord as reasonably determined by Landlord), Tenant shall have the right to provide its own alternative energy sources subject to the other terms and conditions of this Lease (including, without limitation, Section 13 below).

8.5 ABATEMENT OF RENT. In the event that Tenant is prevented from using, and does not use, the Premises or any portion thereof, for five (5) consecutive business days or ten (10) days in any twelve (12) month period (the “Eligibility Period”) as a result of any damage or destruction to the Premises or any repair, maintenance or alteration performed by Landlord to the Premises after the Commencement Date and required by the Lease, which substantially interferes with Tenant’s use of the Premises, or any failure to provide services or access to the Premises due to Landlord’s negligence or default, then Tenant’s rent shall be abated or reduced, as the case may be, after expiration of the Eligibility Period for such time that Tenant continues to be so prevented from using, and does not use, the Premises or a portion thereof, in the proportion that the rentable area of the portion of the Premises that Tenant is prevented from using, and does not use, bears to the total rentable area of the Premises. However, in the event that Tenant is prevented from conducting, and does not conduct, its business in any portion of the Premises for a period of time in excess of the Eligibility Period, and the remaining portion of the Premises is not sufficient to allow Tenant to effectively conduct its business therein, and if Tenant does not conduct its business from such remaining portion, then for such time after expiration of the Eligibility Period during which Tenant is so prevented from effectively conducting its business therein, the rent for the entire Premises shall be abated; provided, however, if Tenant reoccupies and conducts its business from any portion of the Premises during such period, the rent allocable to such reoccupied portion, based on the proportion that the rentable area of such reoccupied portion of the Premises bears to the total rentable area of the Premises, shall be payable by Tenant from the date such business operations commence.

9. REAL AND PERSONAL PROPERTY TAXES.

9.1 PAYMENT OF TAXES. Tenant shall pay to Landlord during the term of this Lease, in addition to Base Rent and Tenant’s Percentage Share of Operating Expenses, Tenant’s Percentage Share of all Real Property Taxes. Tenant’s Percentage Share of Real Property Taxes shall be payable by Tenant at the same time, in the same manner and under the same terms and conditions as Tenant pays Tenant’s Percentage Share of Operating Expenses.

9.2 DEFINITION OF REAL PROPERTY TAX. As used herein, the term “Real Property Taxes” shall include any form of real estate tax or assessment, general, special, ordinary or extraordinary, improvement bond or bonds imposed on the Project or any portion thereof by any authority having the direct or indirect power to tax, including any city, county, state or federal government, or any school, agricultural, sanitary, fire, street, drainage or other improvement district thereof, as against any legal or equitable interest of Landlord in the Project or in any portion thereof. Real Property Taxes shall not include income, inheritance and gift taxes. In the future a general or special assessment of real property taxes may be levied and assessed against the Project, and in this event Landlord may have the right to either elect to pay the new assessment in full or to pay the new assessment in installments over time. If Landlord elects to pay the new assessment in full, each year the Real Property Taxes shall include the amount of the assessment that would have come due each year if Landlord had elected to pay the assessment in installments. To the actual knowledge of Scott Amling, without duty of investigation, as of the date set forth in section 1.1, Landlord represents and warrants to Tenant that the current amount of Real Property Taxes paid by Landlord is not reflective of a re-valuation received by Landlord pursuant to Proposition 8.

9.3 PERSONAL PROPERTY TAXES. Tenant shall pay prior to delinquency all taxes assessed against and levied upon trade fixtures, furnishings, equipment and all other personal property of Tenant contained in the Premises or related to Tenant’s use of the Premises. If any of Tenant’s personal property shall be assessed with Landlord’s real or personal property, Tenant shall pay to Landlord the taxes attributable to Tenant within ten (10) days after receipt of a written statement from Landlord setting forth the taxes applicable to Tenant’s property.

9.4 REASSESSMENTS. From time to time Landlord may challenge the assessed value of the Project as determined by applicable taxing authorities and/or Landlord may attempt to cause the Real Property Taxes to be reduced on other grounds. If Landlord is successful in causing the Real Property Taxes to be reduced or in obtaining a refund, rebate, credit or similar benefit (hereinafter collectively referred to as a “reduction”). Landlord shall to the extent possible, credit the reduction(s) to Real Property Taxes for the calendar year to which a reduction applies and recalculate the Real Property Taxes owed by Tenant for years in which the reduction applies based on the reduced Real Property Taxes. All reasonable costs incurred by Landlord in obtaining the Real Property Tax reductions shall be considered an Operating Expense, and Landlord shall determine, in its sole discretion, to which years any reductions will be applied. In addition, all reasonable accounting and related costs incurred by Landlord in making the adjustments shall be an Operating Expense. Landlord shall have the right to compensate a person or entity it employs to obtain a reduction in Real Property Taxes by giving such person or entity a percentage of any reduction or credit obtained, and in this event the reduction or credit obtained by Landlord shall be deemed to be the reduction or credit given by the taxing authority less the compensation paid to such person or entity.

9.5 APPEAL OF REAL PROPERTY TAXES AT TENANT’S REQUEST. If Tenant reasonably believes that the assessed value of the Project for purposes of calculating Real Property Taxes exceeds the fair market value of the Project, Tenant shall have the right to request that Landlord file an appeal seeking to reduce the assessed value of the Project (a “Tenant Reassessment Request”). If Landlord has not filed an appeal seeking to reduce the assessed value of the Project in the twelve (12) month period immediately preceding Landlord’s receipt of a Tenant Reassessment Request, and there is a commercially reasonable basis to believe that the fair market value of the Project is less than the assessed value of the Project, Landlord shall appeal the assessed value of the Project the next time it is legally permitted to do so. Tenant shall not have the right to provide a Tenant Reassessment Request to Landlord more often than once in any three (3) year period.

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10. INSURANCE.

10.1 INSURANCE-TENANT.

(a) Tenant shall obtain and keep in force during the term of this Lease a commercial general liability policy of insurance in commercially reasonable form (and otherwise in accordance with the other terms and conditions of this Lease), which, by way of example and not limitation, protects Tenant and Landlord (as an additional insured) against claims for bodily injury, personal injury and property damage based upon, involving or arising out of the ownership, use, occupancy or maintenance of the Premises and all areas appurtenant thereto. Such insurance shall be on an occurrence basis providing single-limit coverage in an amount not less than $2,000,000 per occurrence with an “Additional Insured-Managers and Landlords of Premises Endorsement” and contain the “Amendment of the Pollution Exclusion” for damage caused by heat, smoke or fumes from a hostile fire. The policy shall not contain any intra-insured exclusions as between insured persons or organizations, but shall include coverage for liability assumed under this Lease as an “insured contract” for the performance of Tenant’s indemnity obligations under this Lease.

(b) Tenant shall obtain and keep in force during the term of this Lease “special causes of loss” extended coverage property insurance with coverages acceptable to Landlord, in Landlord’s reasonable discretion. Said insurance shall be written on a one hundred percent (100%) replacement cost basis on Tenant’s personal property, all tenant improvements installed at the Premises by Landlord or Tenant. Tenant’s trade fixtures and other property. By way of example, and not limitation, such policies shall provide protection against any peril included within the classification “fire and extended coverage,” against vandalism and malicious mischief, theft and sprinkler leakage.

(c) Tenant shall, at all times during the term hereof, maintain in effect workers’ compensation insurance as required by applicable law and business interruption insurance in a commercially reasonable form.

10.2 INSURANCE-LANDLORD.

(a) Landlord shall obtain and keep in force a policy of general liability insurance with coverage against such risks and in such amounts as Landlord deems advisable insuring Landlord against liability arising out of the ownership, operation and management of the Project.

(b) Landlord shall also obtain and keep in force during the term of this Lease a policy or policies of insurance covering loss or damage to the Project in the amount of not less than one hundred percent (100%) of the full replacement cost thereof, as determined by Landlord from time to time. The terms and conditions of said policies and the perils and risks covered thereby shall be determined by Landlord, from time to time, in Landlord’s sole discretion, provided that such policy shall, at a minimum, provide protection against any peril included within the classification “fire and extended coverage,” vandalism and malicious mischief, theft and sprinkler leakage. In addition, at Landlord’s option, Landlord shall obtain and keep in force, during the term of this Lease, a policy of rental interruption insurance, with loss payable to Landlord, which insurance shall, at Landlord’s option, also cover all Operating Expenses and Real Property Taxes. Tenant will not be named as an additional insured in any insurance policies carried by Landlord and shall have no right to any proceeds therefrom. The policies purchased by Landlord shall contain such deductibles as Landlord may determine. Tenant shall pay at Tenant’s sole expense any increase in the property insurance premiums for the Project over what was payable immediately prior to the increase to the extent the increase is specified by Landlord’s insurance carrier as being caused by the particular nature of Tenant’s occupancy or any act or omission of Tenant.

10.3 INSURANCE POLICIES. Tenant shall deliver to Landlord certificates of the insurance policies required under section 10.1 within fifteen (15) days prior to the Commencement Date of this Lease, and Landlord shall have the right to approve the terms and conditions of said certificates. Tenant’s insurance policies shall not be cancelable or subject to reduction of coverage or other modification except after thirty (30) days prior written notice to Landlord. Tenant shall, at least thirty (30) days prior to the expiration of such policies, furnish Landlord with certificates of renewals thereof. Tenant’s insurance policies shall be issued by insurance companies authorized to do business in the state in which the Project is located, and said companies shall maintain during the policy term a “General Policyholder’s Rating” of at least A and a financial rating of at least “Class X” (or such other rating as may be required by any lender having a lien on the Project) as set forth in the most recent edition of “Best Insurance Reports.” All Insurance obtained by Tenant shall be primary to and not contributory with any similar insurance carried by Landlord, whose insurance shall be considered excess insurance only. Landlord and, at Landlord’s option, the holder of any mortgage or deed of trust encumbering the Project and any person or entity managing the Project on behalf of Landlord, shall be named as an additional insured on all insurance policies Tenant is obligated to obtain by section 10.1 above. Tenant’s insurance policies shall not include deductibles in excess of Five Thousand Dollars ($5,000); provided, however, if deductibles in this amount are not available at commercially reasonable rates and it becomes customary to permit tenant’s of similar industrial buildings to maintain a higher deductible. Landlord shall permit Tenant to maintain the higher customary deductible not to exceed One Hundred Thousand Dollars ($25,000).

10.4 WAIVER OF SUBROGATION. Notwithstanding anything to the contrary contained in this Lease: (i) Landlord waives any and all rights of recovery against Tenant and Tenant’s employees and agents for or arising out of damage to, or destruction of, the Project to the extent that Landlord’s insurance policies then in force insure against such damage or destruction (or to the extent of what would have been covered had Landlord maintained the insurance required to be carried under this Lease) and permit such waiver, regardless of the negligence of Tenant or its agents; and (ii) Tenant waives any and all rights of recovery against Landlord and Landlord’s employees and agents for or arising out of damage to, or destruction of, the Project to the extant that Tenant’s insurance policies then in force insure against such damage or destruction (or to the extent of what would have been covered had Tenant maintained the insurance required to be carried under this Lease) and permit such waiver, regardless of the negligence of Landlord or its agents. Tenant shall cause the insurance policies it obtains in accordance with section 10.1 relating to property damage to provide that the insurance company waives all right of recovery by subrogation against Landlord in connection with any liability or damage covered by Tenant’s insurance policies.

10.5 COVERAGE. Landlord makes no representation to Tenant that the limits or forms of coverage specified above or approved by Landlord are adequate to insure Tenant’s property or Tenant’s obligations under this Lease, and the limits of any insurance carried by Tenant shall not limit Tenant’s obligations or liability under any indemnity provision included in this Lease or under any other provision of this Lease.

11. LANDLORD’S REPAIRS.

11.1 OBLIGATIONS OF LANDLORD. Landlord shall maintain, at Landlord’s expense, only the structural elements of the roof of the Building (excluding the roof membrane), the structural soundness of the slab, structural soundness of the foundation of the Building and the structural elements of the exterior walls, and of any other load bearing walls, if any, of the Building (collectively, the “Structural Elements”). Subject to Section 10.4 above, Tenant shall reimburse Landlord for the cost of any maintenance, repair or replacement of the foregoing necessitated by Tenant’s misuse, negligence, alterations to the Premises or any breach of its obligations under this Lease. By way of example, and not limitation, the term “exterior walls” as used in this section shall not include windows, glass or plate glass, doors or overhead doors, special store fronts, dock bumpers, dock plates or levelers, or office entries. Tenant shall immediately give Landlord written notice of any repair

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required by Landlord pursuant to this section, after which Landlord shall have a reasonable time in which to complete the repair, Nothing contained in this section shall be construed to obligate Landlord to seal or otherwise maintain the surface of any foundation, floor or slab. Subject to reimbursement by Tenant as Operating Expenses in accordance with the provisions of Section 6 above, Landlord shall also repair and maintain the roof membranes. HVAC units, sprinkler systems, fire alarm systems, fire detection systems and exterior walls of the Premises in good condition and repair, and replace such items as necessary, and in doing so Landlord shall employ contractors to perform all repairs, maintenance and replacements of the roof membranes. HVAC units, sprinkler systems, fire alarm systems, fire detection systems and exterior walls of the Premises. The items described in the previous sentence that Landlord will cause to be repaired, maintained and replaced are hereinafter referred to as the “Landlord Maintenance Items.” Notwithstanding anything to the contrary contained in this Lease, Landlord Maintenance Items shall not include any improvement or alteration made to the Premises by Tenant, and all such improvements and alterations shall be repaired, maintained and if necessary replaced by Tenant, at Tenant’s sole cost and expense. Landlord shall determine in its sole discretion the scope and timing of the performance of such Landlord Maintenance Items, and Tenant shall not perform such Landlord Maintenance Items except as otherwise permitted by this Lease. Landlord’s maintenance of the exterior walls of the Premises shall include the right, but not the obligation, of Landlord to paint from time to time all or some of the exterior walls, canopies, doors, windows, gutters, handrails and other exterior parts of the Premises with colors selected by Landlord and reasonably acceptable to Tenant, and Tenant shall reimburse Landlord as provided in Section 6 above. If the Premises contains landscaped areas (“Landscaped Areas”). Landlord shall maintain the Landscaped Areas, and Tenant shall reimburse Landlord for all costs incurred by Landlord in maintaining the Landscaped Areas in accordance with Section 6 above. Tenant shall immediately give Landlord written notice of any repair or maintenance required by Landlord pursuant to this section, after which Landlord shall have a reasonable time in which to complete such repair or maintenance. Tenant expressly waives the benefits of any statute now or hereafter in effect which would otherwise afford Tenant the right to make repairs at Landlord’s expense or to terminate this Lease because of Landlord’s failure to keep the Premises in good order, condition and repair.

11.2 MAINTENANCE CONTRACTS. Landlord may enter into regularly scheduled preventative maintenance/service contracts for some or all of the following: the HVAC units servicing the Premises, the sprinkler, fire alarm and fire detection systems servicing the Premises, backflow testing for the plumbing servicing the Premises and for the roof membrane of the Premises (the “Maintenance Contracts”). The Maintenance Contracts shall include maintenance services satisfactory to Landlord, in Landlord’s sole discretion. Tenant shall reimburse Landlord for the cost of the Maintenance Contracts as part of Operating Expenses. Landlord shall obtain Maintenance Contracts at commercially reasonable costs.

11.3 FAILURE OF LANDLORD TO MAKE REPAIR.

(a) Notwithstanding anything to the contrary contained in the Lease, if Tenant provides written notice to Landlord that an event or circumstance has occurred which requires Landlord to complete a repair at the Premises, and Landlord fails to begin taking the actions necessary to complete such repair within thirty (30) days after the receipt of such notice and to thereafter diligently proceed to complete such repair, then, Tenant shall have the right to give to Landlord a second written notice (the “Second Notice”). The Second Notice shall (a) describe the repair Landlord is obligated to complete and (b) state that Landlord’s failure to complete such repair within thirty (30) days after Landlord’s receipt of the Second Notice shall entitle Tenant to make the repair pursuant to this section of the Lease. If Landlord does not begin taking the actions necessary to complete such repair within ten (10) days after the receipt of the Second Notice, subject to the terms and conditions set forth below, Tenant may proceed to make the repair, and if such repair was required under the terms of the Lease to be made by Landlord, then Tenant shall be entitled to reimbursement by Landlord of Tenant’s reasonable costs and expenses in making such repair. If Landlord was obligated to perform such repair, Landlord shall reimburse Tenant for the reasonable cost of the repair within thirty (30) days after receiving reasonable evidence of the repair made, its cost and mechanics lien releases from all contractors making the repair. If Tenant makes a repair, and such repair will effect the Building’s life/safety system, HVAC system, electrical system, plumbing system, or the structural integrity of the Building, Tenant shall utilize the services of a qualified, experienced and solvent contractor that regularly performs similar work in similar buildings in the area in which the Building is located. Nothing contained herein shall be deemed to give Tenant the right to take any action or to make any repair in any Common Area or the right to modify the structure, layout or design of the Building. In addition, Tenant shall not have the right to make any repair pursuant to this section, unless such repair is necessary to remedy a problem which adversely effects Tenant’s use of the Premises. All repairs made by Tenant shall be made in accordance with all applicable laws, and Landlord shall not be responsible for any defective work performed by Tenant or contractors hired by Tenant. Tenant shall pay all costs incurred with respect to any actions or repairs made by Tenant and shall pay all claims for labor and materials furnished to Tenant as and when due.

(b) ARBITRATION. In the event Landlord disputes whether Tenant is entitled to reimbursement under section 11.2(a), Landlord or Tenant shall have the right to commence a reference proceeding as provided below. If it is determined pursuant to such proceeding that Tenant is entitled to reimbursement under section 11.2(a), then Landlord shall within ten (10) days following such determination, reimburse Tenant for the reasonable cost of such repair as determined pursuant to such action, plus interest thereon at ten percent (10%) per annum from the date of Tenant’s expenditure until Landlord’s reimbursement. The reference shall take place before a referee pursuant to the provisions of California Code of Civil Procedure Section 638 et seq., and the determination to be made shall be binding upon the parties as if tried before a court or jury. The parties agree specifically as to the following:

(i) Within five (5) business days after service of a demand by a party hereto, the parties shall agree upon a single referee who shall determine if Tenant is entitled to reimbursement under section 11.2(a) for a repair, and then report a finding or judgment thereon. If the parties are unable to agree upon a referee either party may seek to have one appointed, pursuant to California Code of Civil Procedure Section 640, by the presiding judge of the Santa Clara County Superior Court.

(ii) The compensation of the referee shall be such charge as is customarily charged by the referee for like services. The cost of such proceedings shall initially be borne equally by the parties. However, the prevailing party in such proceedings shall be entitled, In addition to all other costs, to recover its contribution for the cost of the reference as an item of damages and/or recoverable costs.

(iii) If a reporter is requested by either party, then a reporter shall be present at all proceedings, and the fees of such reporter shall be borne by the party requesting such reporter. Such fees shall be an item of recoverable costs. Only a party shall be authorized to request a reporter.

(iv) The referee shall apply all California Rules of Procedure and Evidence and shall apply the substantive law of California in deciding the issues to be heard. Notice of any motions before the referee shall be given, and all matters shall be set at the convenience of the referee.

(v) The referee’s decision under California Code of Civil Procedure Section 644, shall stand as the judgment of the court, subject to appellate review as provided by the laws of the State of California.

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(vi) The parties agree that they shall in good faith endeavor to cause any such dispute to be decided within four (4) months. The date of hearing for any proceeding shall be determined by agreement of the parties and the referee, or if the parties cannot agree, then by the referee.

(vii) This section 11.2(b) shall only apply to the resolution of a dispute concerning Tenant’s right to reimbursement under section 11.2(a), and shall not apply to any other dispute between Landlord and Tenant.

12. TENANT’S REPAIRS. Tenant shall, at its sole cost and expense, keep and maintain all parts of the Premises (except those listed as Landlord’s responsibility in section 11 above) in good and sanitary condition, promptly making all necessary repairs and replacements, including but not limited to, windows, glass and plate glass, doors, skylights, any special store front or office entry, walls and finish work, floors and floor coverings, heating and air conditioning systems installed by Tenant, dock boards, bumpers, plates, seals, levelers and lights, plumbing work and fixtures (including periodic backflow testing), electrical systems, lighting facilities and bulbs, sprinkler systems installed by Tenant, alarm systems installed by Tenant, fire detection systems installed by Tenant, termite and pest extermination, sidewalks, tenants signage and regular removal of trash and debris. Tenant shall not paint or otherwise change the exterior appearance of the Premises without Landlord’s prior written consent, which may be given or withheld in Landlord’s sole discretion. The cost of maintenance and repair of any common party wall (any wall, divider, partition or any other structure separating the Premises from any adjacent premises occupied by other tenants) shall be shared equally by Tenant and the tenant occupying the adjacent premises; provided, however, if Tenant damages a party wall the entire cost of the repair shall be paid by Tenant, at Tenant’s sole expense. Tenant shall not damage any party wall or disturb the integrity and support provided by any party wall. If Tenant fails to keep the Premises in good condition and repair, Landlord may, but shall not be obligated to, make any necessary repairs. If Landlord makes such repairs, Landlord may bill Tenant for the cost of the repairs as additional rent, and said additional rent shall be payable by Tenant within ten (10) days after demand by Landlord.

13. ALTERATIONS AND SURRENDER.

13.1 CONSENT OF LANDLORD. Tenant shall have the right. subject to Landlord’s reasonable requirements relating to construction at the Project, upon ten (10) days prior written notice to Landlord, to make alterations (“Permitted Alterations”) to the inside of the Premises that do not (i) involve the expenditure of more than $50,000.00 per project; (ii) affect the exterior appearance of the Building or the roof, (iii) materially affect the Building’s electrical, plumbing, HVAC, life, fire safety or similar Building systems or the structural elements of the Building, or (iv) materially adversely affect any other tenant of the Project Except with respect to Permitted Alterations, Tenant shall not, without Landlord’s prior written consent, which consent shall not be unreasonably withheld or delayed, make any alterations, improvements, additions, utility installations or repairs (hereinafter collectively referred to as “Non-Permitted Alterations”) in, on or about the Premises or the Project. References in this Lease to “Alterations” shall mean both Permitted Alterations and Non-Permitted Alterations. At the expiration of the term, Landlord may require the removal of any Alterations installed by Tenant and the restoration of the Premises and the Project to their prior condition, at Tenant’s expense if, at the time of Landlord’s consent. Landlord did not agree in writing that Tenant would not be obligated to remove the Alterations. Notwithstanding the forgoing, Tenant shall not be obligated to remove the Tenant Improvements (as defined in the Work Letter Agreement) upon the termination of this Lease. If, as a result of any Alteration made by Tenant, Landlord is obligated to comply with the Americans With Disabilities Act or any other law or regulation, and such compliance requires Landlord to make any improvement or Alteration to any portion of the Project, as a condition to Landlord’s consent, Landlord shall have the right to require Tenant to pay to Landlord prior to the construction of any Alteration by Tenant the entire cost of any improvement or alteration Landlord is obligated to complete by such law or regulation. Tenant shall have the right to perform its Permitted Alterations. Should Landlord permit Tenant to make its own Non-Permitted Alterations, Tenant shall use only such architect and contractor as has been reasonably approved by Landlord. If the cost of the Alteration will exceed $50,000 for any particular project. Landlord may require Tenant to provide to Landlord, at Tenant’s sole cost and expense, a lien and completion bond in an amount equal to one and one-half times the estimated cost of such Alterations, to insure Landlord against any liability for mechanic’s and materialmen’s liens and to insure completion of the work; provided, however, no bond shall be required with respect to the construction of the Tenant Improvements. In addition, Tenant shall pay to Landlord a fee equal to the lesser of (i) the actual amount Landlord pays to its property manager to supervise any Non-Permitted Alterations, or (ii) three percent (3.0%) of the cost of the Non-Permitted Alterations to compensate Landlord for the overhead and other out-of-pocket costs it incurs in reviewing the plans for the Alterations and in monitoring the construction of the Alterations (the “Fee”), provided that with respect to the Tenant Improvements, such Fee shall not exceed Twelve Thousand Five Hundred Dollars ($12,500) in the aggregate, nor shall such Fee for any particular project of Non-Permitted Alterations by Tenant exceed Twelve Thousand Five Hundred Dollars ($12,500). Should Tenant make any Alterations without the prior approval of Landlord where required hereunder, or use a contractor not expressly approved by Landlord where required hereunder, Landlord may, at any time during the term of this Lease, require that Tenant remove all or part of the Alterations and return the Premises to the condition it was in prior to the making of the Alternations. In the event Tenant makes any Alterations, Tenant agrees to obtain or cause its contractor to obtain, prior to the commencement of any work, “builders all risk” insurance in a commercially reasonable amount and workers compensation insurance. Notwithstanding anything to the contrary in this Lease, including, without limitation, Section 13.5 below, in no event shall Tenant be required to remove the Tenant Improvements from the Premises at the end of the Term.

13.2 PERMITS. Any Alterations in or about the Premises that Tenant shall desire to make shall be presented to Landlord in written form, and if a building permit will be required, with plans and specifications which are sufficiently detailed to obtain a building permit. If Landlord consents to an Alteration, the consent shall be deemed conditioned upon Tenant acquiring a building permit from the applicable governmental agencies, furnishing a copy thereof to Landlord prior to the commencement of the work, and compliance by Tenant with all conditions of said permit in a prompt and expeditious manner. Tenant shall provide Landlord with as-built plans and specifications for any Alterations made to the Premises.

13.3 MECHANICS LIENS. Tenant shall pay, when due, all claims for labor or materials furnished or alleged to have been furnished to or for Tenant at or for use in the Premises, which claims are or may be secured by any mechanic’s or materialmen’s lien against the Premises or the Project, or any interest therein. If Tenant shall, in good faith, contest the validity of any such lien, Tenant shall furnish to Landlord a surety bond satisfactory to Landlord in an amount equal to not less than one and one-half times the amount of such contested lien claim indemnifying Landlord against liability arising out of such lien or claim. Such bond shall be sufficient in form and amount to free the Project from the effect of such lien. In addition, Landlord may require Tenant to pay Landlord’s reasonable attorneys’ fees and costs in participating in such action.

13.4 NOTICE. Tenant shall give Landlord not less than ten (10) days’ advance written notice prior to the commencement of any work in the Premises by Tenant, and Landlord shall have the right to post notices of non-responsibility in or on the Premises or the Project.

13.5 SURRENDER. Subject to Landlord’s right to require removal or to elect ownership as hereinafter provided, all Alterations made by Tenant to the Premises shall be the property of Tenant, but shall be considered to be a part of the Premises. Unless Landlord gives Tenant written notice of its election not to become the owner of the Alterations at the end of the term of this Lease, the Alterations shall become the property of Landlord at the end of the term of this Lease. Landlord may require, on notice to Tenant, that some or all Alterations (that Landlord has not previously agreed shall remain in the Premises at the end of the Term) be removed prior to the end of the term of this Lease and that any damages caused by such

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removal be repaired at Tenant’s sole expense. On the last day of the term hereof, or on any sooner termination. Tenant shall surrender the Premises (including, but not limited to, all doors, windows, floors and floor coverings, skylights, heating and air conditioning systems, dock boards, truck doors, dock bumpers, plumbing work and fixtures, electrical systems, lighting facilities, sprinkler systems, fire detection systems and nonstructural elements of the exterior walls, foundation and roof (collectively the “Elements of the Premises”)) to Landlord in the same condition as received, ordinary wear and tear and casualty damage excepted, clean and free of debris and Tenant’s personal property, trade fixtures and equipment. Tenant’s personal property shall include all computer wiring and cabling installed by Tenant, and all fixtures and equipment of Tenant in the Premises even if bracketed, braced or bolted in any manner to the Premises. Provided, however, if Landlord has not elected to have Tenant remove the Alterations. Tenant shall leave the Alterations at the Premises in good condition and repair, ordinary wear and tear excepted. Tenant shall repair any damage to the Premises occasioned by the installation or removal of Tenant’s trade fixtures, furnishings and equipment. Damage to or deterioration of any Element of the Premises or any other item Tenant is required to repair or maintain at the Premises shall not be deemed ordinary wear and tear if the same could have been prevented by good maintenance practices. Tenant shall indemnify, defend and hold Landlord harmless from and against any and all damages, expenses, costs, losses or liabilities arising from any delay by Tenant in so surrendering the Premises including, without limitation, any damages, expenses, costs, losses or liabilities arising from any claim against Landlord made by any succeeding tenant or prospective tenant founded on or resulting from such delay and losses and damages suffered by Landlord due to lost opportunities to lease any portion of the Premises to any such succeeding tenant or prospective tenant, together with, in each case, actual attorneys’ fees and costs.

13.6 FAILURE OF TENANT TO REMOVE PROPERTY. If this Lease is terminated due to the expiration of its term or otherwise, and Tenant fails to remove its property, in addition to any other remedies available to Landlord under this Lease, and subject to any other right or remedy Landlord may have under applicable law, Landlord may remove any property of Tenant from the Premises and store the same elsewhere at the expense and risk of Tenant.

14. DAMAGE AND DESTRUCTION.

14.1 EFFECT OF DAMAGE OR DESTRUCTION. If all or part of the Project is damaged by fire, earthquake, flood, explosion, the elements, riot, the release or existence of Hazardous Materials (as defined below) or by any other cause whatsoever (hereinafter collectively referred to as “damages”), but the damages are not material (as defined in section 14.2 below), Landlord shall repair the damages to the Project as soon as is reasonably possible, and this Lease shall remain in full force and effect. If all or part of the Project is destroyed or materially damaged (as defined in section 14.2 below), Landlord shall have the right, in its sole and complete discretion, to repair or to rebuild the Project or to terminate this Lease. Landlord shall within sixty (60) days after the discovery of such material damage or destruction notify Tenant in writing of Landlord’s intention to repair or to rebuild or to terminate this Lease. Tenant shall in no event be entitled to compensation or damages on account of annoyance or inconvenience in making any repairs, or on account of construction, or on account of Landlord’s election to terminate this Lease. In the event Landlord shall elect to rebuild or repair the Project after material damage or destruction material damage. Landlord’s architect shall provide in writing to Tenant a reasonable estimate of the amount of time it will take to repair such damage within ninety (90) days following the date of such damage. If the architect in good faith determines that the Premises cannot be substantially repaired within two hundred forty days after the date of the discovery of the material damage or destruction, without payment of overtime or other premiums, and the damage to the Project will render the Premises (as reasonably determined by Tenant) unusable during said two hundred forty (240) day period. Tenant shall thereafter have a period of fifteen (15) days within which Tenant may elect to terminate this Lease, upon thirty (30) days’ advance written notice to Landlord. Tenant’s termination right described in the preceding sentence shall not apply if the damage was caused by the willful misconduct of Tenant or its employees, agents, contractors or invitees. Failure of Tenant to exercise said election within said fifteen (15) day period shall constitute Tenant’s agreement to accept delivery of the Premises under this Lease whenever tendered by Landlord, provided that in the event such restoration is not complete within such two hundred forty (240) day period, subject to delays of up to an additional sixty (60) days caused by Force Majeure Events (as defined below). Tenant shall again have the right to terminate this Lease within ten (10) days after the expiration of such two hundred forty (240) day period (as may be extended by Force Majeure Events as set forth above). Tenant shall also have the right to terminate this Lease if damage occurs to the Premises during the last twelve (12) months of the Lease term, such damage renders a substantial portion of the Premises unusable, and such damage cannot be substantially repaired within sixty (60) days. Tenant’s termination right described in the previous sentence shall be exercised by providing Landlord with written notice within fifteen (15) days after the occurrence of the damage. A “Force Majeure Event” shall mean fire, earthquake, weather delays or other acts of God, strikes, boycotts, war, riot, insurrection, embargoes, shortages of equipment, labor or materials, delays in issuance of governmental permits or approvals not caused by Landlord or its agents or contractors, or any other cause beyond the reasonable control of Landlord.

14.2 DEFINITION OF MATERIAL DAMAGE. Damage to the Project shall be deemed material if, in Landlord’s reasonable judgment, the uninsured cost of repairing the damage will exceed Two Hundred Fifty Thousand Dollars ($250,000) of the replacement cost of the Building. If insurance proceeds are available to Landlord in an amount which is sufficient to pay the entire cost of repairing all of the damage to the Project, the damage shall be deemed material if the cost of repairing the damage exceeds Seven Hundred Fifty Thousand Dollars ($750,000). Damage to the Project shall also be deemed material if (a) the Project cannot be rebuilt or repaired to substantially the same condition it was in prior to the damage due to laws or regulations in effect at the time the repairs will be made, or (b) the damage occurs during the last twelve (12) months of the Lease term.

14.3 ABATEMENT OF RENT. If Landlord elects to repair damage to the Project and all or part of the Premises will be unusable or inaccessible to Tenant in the ordinary conduct of its business until the damage is repaired, Tenant’s Base Rent and Tenant’s Percentage Share of Operating Expenses shall be abated until the repairs are completed in proportion to the amount of the Premises which is unusable or inaccessible to Tenant in the ordinary conduct of its business. Notwithstanding the foregoing, there shall be no abatement of Base Rent or Tenant’s Percentage Share of Operating Expenses by reason of any portion of the Premises being unusable or inaccessible for a period equal to five (5) consecutive business days or less.

14.4 TENANT’S ACTS. Subject to Section 10.4 above, if such damage or destruction occurs as a result of the negligence or the intentional acts of Tenant or Tenant’s employees, agents, contractors or invitees, and the proceeds of insurance which are actually received by Landlord are not sufficient to pay for the repair of all of the damage, Tenant shall pay, at Tenant’s sole cost and expense, to Landlord upon demand, the difference between the cost of repairing the damage and the insurance proceeds received by Landlord.

14.5 TENANT’S PROPERTY. Landlord shall not be liable to Tenant or its employees, agents, contractors, invitees or customers for loss or damage to merchandise, tenant improvements, fixtures, automobiles, furniture, equipment, computers, files or other property (hereinafter collectively “Tenant’s properly”) located at the Project. Tenant shall repair or replace all of Tenant’s property at Tenant’s sole cost and expense. Tenant acknowledges that it is Tenant’s sole responsibility to obtain adequate insurance coverage to compensate Tenant for damage to Tenant’s property.

14.6 WAIVER. Landlord and Tenant hereby waive the provisions of any present or future statutes which relate to the termination of leases when leased property is damaged or destroyed and agree that such event shall be governed by the terms of this Lease.

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15. CONDEMNATION. If any portion of the Premises or the Project are taken under the power of eminent domain, or sold under the threat of the exercise of said power (all of which are herein called “condemnation”), this Lease shall terminate as to the part so taken as of the date the condemning authority takes title or possession, whichever first occurs; provided that if so much of the Premises or Project are taken by such condemnation as would substantially and adversely affect the operation of Tenant’s business conducted from the Premises, as reasonably determined by Tenant, and said taking lasts for ninety (90) days or more, Tenant shall have the option, to be exercised only in writing within thirty (30) days after Landlord shall have given Tenant written notice of such taking (or in the absence of such notice, within thirty (30) days after the condemning authority shall have taken possession), to terminate this Lease as of the date the condemning authority takes such possession. If a taking lasts for less than ninety (90) days. Tenant’s rent shall be abated during said period but Tenant shall not have the right to terminate this Lease. If Tenant does not terminate this Lease in accordance with the foregoing, this Lease shall remain in full force and effect as to the portion of the Premises remaining, except that the Base Rent and Operating Expenses shall be reduced in the proportion that the usable floor area of the Premises taken bears to the total usable floor area of the Premises. Landlord shall have the option in its sole discretion to terminate this Lease as of the taking of possession by the condemning authority of twenty-five percent (25%) or more of the Premises or Project, by giving written notice to Tenant of such election within thirty (30) days after receipt of notice of a taking by condemnation of any such part of the Premises or the Project. Any award for the taking of all or any part of the Premises or the Project under the power of eminent domain or any payment made under threat of the exercise of such power shall be the property of Landlord, whether such award shall be made as compensation for diminution in value of the leasehold, for the taking of the fee, as severance damages, or as damages for tenant improvements; provided, however, that Tenant shall be entitled to any separate award for loss of or damage to Tenant’s removable personal property, for moving expenses and for Tenant’s good will. In the event that this Lease is not terminated by reason of such condemnation, and subject to the requirements of any lender that has made a loan to Landlord encumbering the Project, Landlord shall to the extent of severance damages received by Landlord in connection with such condemnation, repair any damage to the Project caused by such condemnation except to the extent that Tenant has been reimbursed therefor by the condemning authority. This section, not general principles of law or California Code of Civil Procedure sections 1230.010 et seq., shall govern the rights and obligations of Landlord and Tenant with respect to the condemnation of all or any portion of the Project.

16. ASSIGNMENT AND SUBLETTING.

16.1 LANDLORD’S CONSENT REQUIRED. Except as provided in section 16.8. Tenant shall not voluntarily or by operation of law assign, transfer, hypothecate, mortgage, sublet, or otherwise transfer or encumber all or any part of Tenant’s interest in this Lease or in the Premises (hereinafter collectively a “Transfer”), without Landlord’s prior written consent, which shall not be unreasonably withheld. Landlord shall respond to Tenant’s written request for consent hereunder within fifteen (15) days after Landlord’s receipt of the written request from Tenant. Any attempted Transfer without such consent shall be void and shall constitute a default and breach of this Lease. Tenant’s written request for Landlord’s consent shall include, and Landlord’s fifteen (15) day response period referred to above shall not commence, unless and until Landlord has received from Tenant, all of the following information: (a) the most recent financial statement for the proposed assignee or subtenant, (b) a reasonably detailed description of the business the assignee or subtenant intends to operate at the Premises, (c) the proposed effective date of the assignment or sublease, (d) a copy of the proposed sublease or assignment agreement, (e) a reasonably detailed description of any Alterations the proposed assignee or subtenant desires to make to the Premises, and (f) a Hazardous Materials Disclosure Certificate substantially in the form of Exhibit D attached hereto completed by the assignee or subtenant (the “ Transferee HazMat Certificate”). If the obligations of the proposed assignee or subtenant will be guaranteed by any person or entity, Tenant’s written request shall not be considered complete until the information described in (a) of the previous sentence has been provided with respect to each proposed guarantor “Transfer” shall also include the transfer (a) if Tenant is a corporation, and Tenant’s stock is not publicly traded over a recognized securities exchange, of more than fifty percent (50%) of the voting stock of such corporation during the term of this Lease (whether or not in one or more transfers) or the dissolution, merger or liquidation of the corporation, or (b) the transfer if Tenant is a partnership, limited liability company, limited liability partnership or other entity, of more than fifty percent (50%) of the profit and loss participation in such partnership or entity during the term of this Lease (whether or not in one or more transfers) or the dissolution, merger or liquidation of the partnership, limited liability company, limited liability partnership or other entity. Tenant’s sole remedy in the event that Landlord shall wrongfully withhold consent to or disapprove any assignment or sublease shall be to obtain an order by a court of competent jurisdiction that Landlord grant such consent, in no event shall Landlord be liable for damages with respect to its granting or withholding consent to any proposed assignment or sublease. If Landlord shall properly exercise any option to recapture the Premises, or shall properly deny a request for consent to a proposed assignment or sublease. Tenant shall indemnify, defend and hold Landlord harmless from and against any and all losses, liabilities, damages, costs and claims that may be made against Landlord by the proposed assignee or subtenant, or by any brokers or other persons claiming a commission or similar compensation in connection with the proposed assignment or sublease: provided, however, this indemnity shall not apply to the gross negligence, willful misconduct of, or breach of this Lease by Landlord.

16.2 LEVERAGED BUY-OUT. The involvement by Tenant or its assets in any transaction, or series of transactions (by way of merger, sale, acquisition, financing, refinancing, transfer, leveraged buy-out or otherwise) whether or not a formal assignment or hypothecation of this Lease or Tenant’s assets occurs, which results or will result in a reduction of the “Net Worth” of Tenant as hereinafter defined, by an amount equal to or greater than fifty percent (50%) of such Net Worth of Tenant as it is represented to Landlord at the time of the execution by Landlord of this Lease, or as it exists immediately prior to said transaction or transactions constituting such reduction, at whichever time said Net Worth of Tenant was or is greater, shall be considered to be an assignment of this Lease by Tenant to which Landlord may reasonably withhold its consent “Net Worth” of Tenant for purposes of this section shall be the net worth of Tenant (excluding any guarantors) established under generally accepted accounting principles consistently applied immediately prior to the completion of the transaction in question.

16.3 STANDARD FOR APPROVAL. Landlord shall not unreasonably withhold its consent to a Transfer provided that Tenant has complied with each and every requirement, term and condition of this section 16. Tenant acknowledges and agrees that each requirement, term and condition in this section 16 is a reasonable requirement, term or condition. It shall be deemed reasonable for Landlord to withhold its consent to a Transfer if any requirement, term or condition of this section 16 is not complied with or; (a) in Landlord’s reasonable judgment, a proposed assignee or subtenant is not able financially to pay the rents due under this Lease as and when they are due and payable; (b) a proposed assignee’s or subtenant’s business will impose a burden on the Project’s Common Areas or utilities that is materially greater than the burden imposed by Tenant (assuming Tenant’s full occupancy of the Premises). In Landlord’s reasonable judgment; (c) the terms of a proposed assignment or subletting will allow the proposed assignee or subtenant (other than an Affiliate (as defined below) to exercise a right of renewal, right of expansion, right of first offer, right of first refusal or similar right held by Tenant; (d) the use of the Premises by the proposed assignee or subtenant will not be a use permitted by this Lease; (e) any guarantor of this Lease refuses to consent to the Transfer or to execute a written agreement reaffirming the guaranty: (f) Tenant is in default as defined in section 17 at the time of the request beyond any applicable cure period; (g) if requested by Landlord, the assignee or subtenant refuses to sign a non-disturbance and attornment agreement in favor of Landlord’s lender; (h) Landlord has sued or been sued by the proposed assignee or subtenant or has otherwise been involved in a legal dispute with the proposed assignee or subtenant; (i) the assignee or subtenant is involved in a business which is not in keeping with the then-current standards of the Project as reasonably determined by Landlord; (j) the proposed assignee or subtenant is a person or entity then negotiating with Landlord for the lease of space in the Project; (k) the assignee or subtenant is a governmental or quasi-governmental

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entity or an agency, department or instrumentality of a governmental or quasi-governmental agency; or (l) the assignee or subtenant will use, store or handle Hazardous Materials in or about the Premises that are materially more hazardous or are in substantially greater quantities than those used by Tenant.

16.4 ADDITIONAL TERMS AND CONDITIONS. The following terms and conditions shall be applicable to any Transfer:

(a) Regardless of Landlord’s consent, no Transfer shall release Tenant from Tenant’s obligations hereunder or alter the primary liability of Tenant to pay the rent and other sums due Landlord hereunder and to perform all other obligations to be performed by Tenant hereunder or release any guarantor from its obligations under its guaranty.

(b) Landlord may accept rent from any person other than Tenant pending approval or disapproval of an assignment or subletting.

(c) The acceptance of rent shall not constitute a waiver or estoppel of Landlord’s right to exercise its rights and remedies for the breach of any of the terms or conditions of this section 16.

(d) The consent by Landlord to any Transfer shall not constitute a consent to any subsequent Transfer by Tenant or to any subsequent or successive Transfer by an assignee or subtenant.

(e) In the event of any default under this Lease, Landlord may proceed directly against Tenant, any guarantors or anyone else responsible for the performance of this Lease, including any subtenant or assignee, without first exhausting Landlord’s remedies against any other person or entity responsible therefor to Landlord, or any security held by Landlord.

(f) Landlord’s written consent to any Transfer by Tenant shall not constitute an acknowledgment that no default then exists under this Lease nor shall such consent be deemed a waiver of any then-existing default.

(g) The discovery of the fact that any financial statement relied upon by Landlord in giving its consent to an assignment or subletting was materially false shall, at Landlord’s election, render Landlord’s consent null and void.

(h) Landlord shall not be liable under this Lease or under any sublease to any subtenant.

(i) No assignment or sublease may be materially modified or amended without Landlord’s prior written consent.

(j) Any assignee of, or subtenant under, this Lease shall, by reason of accepting such assignment or entering into such sublease, be deemed, for the benefit of Landlord, to have assumed and agreed to conform and comply with each and every term, covenant, condition and obligation herein to be observed or performed by Tenant during the term of said assignment or sublease, other than such obligations as are contrary or inconsistent with provisions of an assignment or sublease to which Landlord has consented in writing.

16.5 ADDITIONAL TERMS AND CONDITIONS APPLICABLE TO SUBLETTING. The following terms and conditions shall apply to any subletting by Tenant of all or any part of the Premises and shall be deemed included in all subleases under this Lease whether or not expressly incorporated therein:

(a) Tenant hereby absolutely and unconditionally assigns and transfers to Landlord all of Tenant’s interest in all rentals and income arising from any sublease entered into by Tenant, and Landlord may collect such rent and income and apply same toward Tenant’s obligations under this Lease: provided, however, that until a default shall occur in the performance of Tenant’s obligations under this Lease beyond any applicable cure period, Tenant may receive, collect and enjoy the rents accruing under such sublease. Landlord shall not, by reason of this or any other assignment of such rents to Landlord nor by reason of the collection of the rents from a subtenant, be deemed to have assumed or recognized any sublease or to be liable to the subtenant for any failure of Tenant to perform and comply with any of Tenant’s obligations to such subtenant under such sublease, including, but not limited to, Tenant’s obligation to return any security deposit. Tenant hereby irrevocably authorizes and directs any such subtenant, upon receipt of a written notice from Landlord stating that a default exists in the performance of Tenant’s obligations under this Lease, to pay to Landlord the rents due as they become due under the sublease. Tenant agrees that such subtenant shall have the right to rely upon any such statement and request from Landlord, and that such subtenant shall pay such rents to Landlord without any obligation or right to inquire as to whether such default exists and notwithstanding any notice or claim from Tenant to the contrary.

(b) In the event Tenant shall default in the performance of its obligations under this Lease beyond any applicable cure period. Landlord, at its option and without any obligation to do so, may require any subtenant to attorn to Landlord, in which event Landlord shall undertake the obligations of Tenant under such sublease from the lime of the exercise of said option to the termination of such sublease; provided, however, Landlord shall not be liable for any prepaid rents or security deposit paid by such subtenant to Tenant or for any other prior defaults of Tenant under such sublease.

16.6 TRANSFER PREMIUM FROM ASSIGNMENT OR SUBLETTING. Landlord shall be entitled to receive from Tenant (as and when received by Tenant) as an item of additional rent one-half of all amounts received by Tenant from the assignee or subtenant in excess of the amounts payable by Tenant to Landlord hereunder (the “Transfer Premium”). The Transfer Premium shall be reduced by the reasonable brokerage commissions, tenant improvement costs and legal fees actually paid by Tenant in order to assign the Lease or to sublet a portion of the Premises. The Transfer Premium shall include all Base Rent, additional rent or other consideration of any type whatsoever payable by the assignee or subtenant in excess of the Base Rent and additional rent payable by Tenant under this Lease. If less than all of the Premises is transferred, the Base Rent and the additional rent shall be determined on a per-leasable-square-foot basis. The Transfer Premium shall also include any money paid to Tenant by the assignee or subtenant in order to avoid or reduce the Transfer Premium payable to Landlord. Notwithstanding anything to the contrary in this Section 16.6, the Transfer Premium shall not include amounts paid by any subtenant to Tenant for the purchase of any property owned by Tenant or for the fair value of services rendered by Tenant to such party, provided that in no event shall this include any amounts specifically intended to avoid paying a portion of the Transfer Premium to Landlord.

16.7 LANDLORD’S OPTION TO RECAPTURE SPACE. Notwithstanding anything to the contrary contained in this section 16, Landlord shall have the option, by giving written notice to Tenant within thirty (30) days after receipt of any request by Tenant to assign this Lease, to terminate this Lease as of the date thirty (30) days after Landlord’s election. In the event Tenant has subleased to one or more subtenants substantially all of the space in the Premises for substantially all of the remaining Term (the “Maximum Sublease Amount”). Landlord shall have the option, by giving written notice to Tenant within thirty (30) days after receipt of any request by Tenant to sublease space in excess of the Maximum Sublease Amount, to terminate this Lease with respect to such additional space as of the date thirty (30) days after Landlord’s election. In the event of a recapture by Landlord, if this Lease shall be canceled with respect to less than the entire Premises, the Base Rent, Operating Expenses and the number of parking spaces Tenant may use shall be adjusted on the basis of the number of rentable square feet retained by Tenant in proportion to the number of rentable square feet contained in the original Premises, and this Lease as

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so amended shall continue thereafter in full force and effect, and upon request of either party, the parties shall execute written confirmation of same. If Landlord recaptures only a portion of the Premises, it shall construct and erect at its sole cost such partitions as may be required to sever the space to be retained by Tenant from the space recaptured by Landlord. Landlord may, at its option, lease any recaptured portion of the Premises to the proposed subtenant or assignee or to any other person or entity without liability to Tenant. Tenant shall not be entitled to any portion of the profit, if any, Landlord may realize on account of such termination and reletting. Notwithstanding the forgoing, in the event that Landlord exercises its right to recapture, Tenant may within ten (10) days after receipt of Landlord’s notice exercising such right, withdraw its request to assign this Lease or to sublease space in the Premises and, upon delivery of such withdrawal notice to Landlord. Landlord’s election to recapture shall automatically terminate and be of no force or effect.

16.8 AFFILIATED ENTITY. Notwithstanding anything to the contrary in this Section 16, an assignment of the Lease or sublease of all or any portion of the Premises to any entity which (a) controls or is controlled by Tenant, (b) which acquires all or substantially all of the assets of Tenant, (c) which is the surviving entity resulting from a merger or consolidation of Tenant or (d) which acquires all or part of Tenant’s stock as part of a recapitalization or financing transaction (in each such case, an “Affiliate”), shall not require Landlord’s consent under section 16.1 of the Lease, provided that at least fifteen (15) days prior to such assignment or sublease (i) Tenant notifies Landlord in writing of any such assignment or sublease and provides Landlord with evidence that such assignment or sublease is a Transfer permitted by this section; (ii) provided the entity resulting from any of the foregoing transactions in this section 16.8 is a different entity from Tenant, prior to the date an assignment or sublease will take effect, the assignee or sublessee and Tenant shall enter into Landlord’s reasonable form of standard consent to sublease agreement or consent to assignment agreement (the “Transfer Agreements”), and (iii) subject to the limitation set forth in section 16.9 of the Lease. Tenant shall pay the reasonable costs and expenses (including legal fees) incurred by Landlord in confirming that the assignment or sublease meets the requirements of this section and in preparing any Transfer Agreement. Whether or not an assignment or sublease to an Affiliate is made pursuant to the terms of section, Tenant shall not be relieved of its obligations under this Lease. Sections 16.6 and 16.7 of the Lease shall not apply to assignments or subleases to Affiliates.

16.9 LANDLORD’S EXPENSES. In the event Tenant shall assign this Lease or sublet the Premises or request the consent of Landlord to any Transfer, then Tenant shall pay Landlord’s attorneys’ fees in reviewing such consent, provided, however, Landlord shall not be entitled to recover more than Two Thousand Five Hundred Dollars ($2,500.00) of attorneys’ fees with respect to any one Transfer.

17. DEFAULT; REMEDIES.

17.1 DEFAULT BY TENANT. Landlord and Tenant hereby agree that the occurrence of any one or more of the following events is a default by Tenant under this Lease and that said default shall give Landlord the rights described in section 17.2. Landlord or Landlord’s authorized agent shall have the right to execute and to deliver any notice of default, notice to pay rent or quit or any other notice Landlord gives Tenant.

(a) Tenant’s failure to make any payment of Base Rent, Tenant’s Percentage Share of Operating Expenses, Tenant’s Percentage Share of Real Property Taxes or any other payment required to be made by Tenant hereunder, as and when due, where such failure shall continue for a period of three (3) business days after written notice thereof from Landlord to Tenant. In the event that Landlord serves Tenant with a notice to pay rent or quit pursuant to applicable unlawful detainer statutes, such notice shall also constitute the notice required by this section 17.1(a).

(b) The abandonment of the Premises by Tenant coupled with the non-payment of rent, in which event Landlord shall not be obligated to give any notice of default to Tenant.

(c) The failure of Tenant to comply with any of its obligations under sections 13.3, 25, 26 and 28 where Tenant falls to comply with its obligations or fails to cure any earlier breach of such obligation within ten (10) days following written notice from Landlord to Tenant. In the event Landlord serves Tenant with a notice to quit or any other notice pursuant to applicable unlawful detainer statutes, said notice shall also constitute the notice required by this section 17.1(c).

(d) The failure by Tenant to observe or perform any of the covenants, conditions or provisions of this Lease to be observed or performed by Tenant (other than those referenced in sections 17.1(a), (b) and (c), above), where such failure shall continue for a period of fifteen (15) days after written notice thereof from Landlord to Tenant; provided, however, that if the nature of Tenant’s nonperformance is such that more than fifteen (15) days are reasonably required for its cure, then Tenant shall not be deemed to be in default if Tenant commences such cure within said fifteen (15) day period and thereafter diligently pursues such cure to completion. In the event that Landlord serves Tenant with a notice to quit or any other notice pursuant to applicable unlawful detainer statutes, said notice shall also constitute the notice required by this section 17.1(d).

(e) (i) The making by Tenant or any guarantor of Tenant’s obligations hereunder of any general arrangement or general assignment for the benefit of creditors; (ii) Tenant or any guarantor becoming a “debtor” as defined in 11 U.S.C. 101 or any successor statute thereto (unless, in the case of a petition filed against Tenant or guarantor, the same is dismissed within sixty (60) days); (iii) the appointment of a trustee or receiver to take possession of substantially all of Tenant’s assets located at the Premises or of Tenant’s interest in this Lease, where possession is not restored to Tenant within thirty (30) days; (iv) the attachment, execution or other judicial seizure of substantially all of Tenant’s assets located at the Premises or of Tenant’s interest in this Lease, where such seizure is not discharged within thirty (30) days; or (v) the insolvency of Tenant. In the event that any provision of this section 17.1(e) is unenforceable under applicable law, such provision shall be of no force or effect.

(f) The discovery by Landlord that any financial statement, representation or warranty given to Landlord by Tenant, or by any guarantor of Tenant’s obligations hereunder, was materially false at the time given. Tenant acknowledges that Landlord has entered into this Lease in material reliance on such information.

(g) If Tenant is a corporation, partnership, limited liability company or similar entity, the dissolution or liquidation of Tenant.

(h) If Tenant’s obligations under this Lease are guaranteed; (i) the death of a guarantor, (ii) the termination of a guarantor’s liability with respect to this Lease other than in accordance with the terms of such guaranty, (iii) a guarantor’s becoming insolvent or the subject of a bankruptcy filing, (iv) a guarantor’s refusal to honor the guaranty, or (v) a guarantor’s breach of its guaranty obligation on an anticipatory breach basis.

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17.2 REMEDIES.

(a) In the event of any default or breach of this Lease by Tenant, Landlord may, at any time thereafter, with or without notice or demand, and without limiting Landlord in the exercise of any right or remedy which Landlord may have by reason of such default:

(i) terminate Tenant’s right to possession of the Premises by any lawful means, In which case this Lease and the term hereof shall terminate and Tenant shall immediately surrender possession of the Premises to Landlord. If Landlord terminates this Lease, Landlord may recover from Tenant (A) the worth at the time of award of the unpaid rent which had been earned at the time of termination; (B) the worth at the time of award of the amount by which the unpaid rent which would have been earned after termination until the time of award exceeds the amount of such rental loss that Tenant proves could have been reasonably avoided; (C) the worth at the time of award of the amount by which the unpaid rent for the balance of the term after the time of award exceeds the amount of such rental loss that Tenant proves could have been reasonably avoided; and (D) any other amount necessary to compensate Landlord for all detriment proximately caused by Tenant’s failure to perform its obligations under the Lease or which in the ordinary course of things would be likely to result therefrom, including, but not limited to, the cost of recovering possession of the Premises, expenses of releasing, including necessary renovation and alteration of the Premises, reasonable attorneys’ fees, any real estate commissions actually paid by Landlord and the unamortized value of any free rent, reduced rent, tenant improvement allowance or other economic concessions provided by Landlord. The “worth at time of award” of the amounts referred to in section 17.2(a)(i)(A) and (B) shall be computed by allowing interest at the lesser of ten percent (10%) per annum or the maximum interest rate permitted by applicable law. The worth at the time of award of the amount referred to in section 17.2(a)(i)(C) shall be computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of award plus one percent (1%). For purposes of this section 17.2(a)(i), “rent” shall be deemed to be all monetary obligations required to be paid by Tenant pursuant to the terms of this Lease.

(ii) maintain Tenant’s right of possession, in which event Landlord shall have the remedy described in California Civil Code section 1951.4 which permits Landlord to continue this Lease in effect after Tenant’s breach and abandonment and recover rent as it becomes due. In the event Landlord elects to continue this Lease in effect, Tenant shall have the right to sublet the Premises or assign Tenant’s interest in the Lease subject to the reasonable requirements contained in section 16 of this Lease and provided further that Landlord shall not require compliance with any standard or condition contained in section 16 that has become unreasonable at the time Tenant seeks to sublet or assign the Premises pursuant to this section 17.2(a)(ii).

(iii) collect sublease rents (or appoint a receiver to collect such rent) and otherwise perform Tenant’s obligations at the Premises, it being agreed, however, that the appointment of a receiver for Tenant shall not constitute an election by Landlord to terminate this Lease.

(iv) pursue any other remedy now or hereafter available to Landlord under the laws or judicial decisions of the state in which the Premises are located.

(b) No remedy or election hereunder shall be deemed exclusive, but shall, wherever possible, be cumulative with all other remedies at law or in equity. The expiration or termination of this Lease and/or the termination of Tenant’s right to possession of the Premises shall not relieve Tenant of liability under any indemnity provisions of this Lease as to matters occurring or accruing during the term of the Lease or by reason of Tenant’s occupancy of the Premises.

(c) If Tenant is in default of this Lease beyond any applicable cure period and Tenant abandons or vacates the Premises, Landlord may re-enter the Premises, and such re-entry shall not be deemed to constitute Landlord’s election to accept a surrender of the Premises or to otherwise relieve Tenant from liability for its breach of this Lease. No surrender of the Premises shall be effective against Landlord unless Landlord has entered into a written agreement with Tenant in which Landlord expressly agrees to (i) accept a surrender of the Premises and (ii) relieve Tenant of liability under the Lease. The delivery by Tenant to Landlord of possession of the Premises shall not constitute the termination of the Lease or the surrender of the Premises.

17.3 DEFAULT BY LANDLORD. Landlord shall not be in default under this Lease unless Landlord fails to perform obligations required of Landlord within thirty (30) days after written notice by Tenant to Landlord and to the holder of any mortgage or deed of trust encumbering the Project whose name and address shall have theretofore been furnished to Tenant in writing, specifying wherein Landlord has failed to perform such obligation; provided, however, that if the nature of Landlord’s obligation is such that more than thirty (30) days are required for its cure, then Landlord shall not be in default if Landlord commences performance within such thirty (30) day period and thereafter diligently pursues the same to completion in no event shall Tenant have the right to terminate this Lease as a result of Landlord’s default, and Tenant’s remedies shall be limited to damages and/or an injunction and as otherwise provided in Section 11 above. Tenant hereby waives its right to recover consequential damages (including, but not limited to, lost profits) or punitive damages arising out of a Landlord default. This Lease and the obligations of Tenant hereunder shall not be affected or impaired because Landlord is unable to fulfill any of its obligations hereunder or is delayed in doing so, if such inability or delay is caused by reason of a Force Majeure Event, and the time for Landlord’s performance shall be extended for the period of any such delay.

17.4 LATE CHARGES. Tenant hereby acknowledges that late payment by Tenant to Landlord of Base Rent, Tenant’s Percentage Share of Operating Expenses or other sums due hereunder will cause Landlord to incur costs not contemplated by this Lease, the exact amount of which will be extremely difficult to ascertain. Such costs include, but are not limited to, processing and accounting charges and late charges which may be imposed on Landlord by the terms of any mortgage or trust deed encumbering the Project. Accordingly, if any installment of Base Rent, Tenant’s Percentage Share of Operating Expenses or any other sum due from Tenant shall not be received by Landlord when such amount shall be due, then, without any requirement for notice or demand to Tenant, Tenant shall immediately pay to Landlord a late charge equal to six percent (6%) of such overdue amount; provided, however, that Landlord shall waive the late charge one (1) time during each calendar year of the term of this Lease if Tenant pays all overdue sums within five (5) days after receipt of written notice by Landlord to Tenant advising Tenant that such payment is overdue. The parties hereby agree that such late charge represents a fair and reasonable estimate of the costs Landlord will incur by reason of late payment by Tenant. Acceptance of such late charge by Landlord shall in no event constitute a waiver of Tenant’s default with respect to such overdue amount, nor prevent Landlord from exercising any of the other rights and remedies granted hereunder, including the assessment of interest under section 17.5.

17.5 INTEREST ON PAST-DUE OBLIGATIONS. Except as expressly herein provided, any amount due to Landlord that is not paid when due shall bear interest at the lesser of ten percent (10%) per annum or the maximum rate permitted by applicable law. Payment of such interest shall not excuse or cure any default by Tenant under this Lease; provided, however, that interest shall not be payable on late charges incurred by Tenant nor on any amounts upon which late charges are paid by Tenant.

17.6 PAYMENT OF RENT AND SECURITY DEPOSIT AFTER DEFAULT. If Tenant fails to pay Base Rent, Tenant’s Percentage Share of Operating Expenses, parking charges or any other monetary obligation due hereunder on the date it is due. after Tenant’s third failure in any twelve (12) month period to pay any monetary obligation on the date it is due, at Landlord’s option, all monetary obligations of Tenant hereunder shall thereafter be paid by cashier’s check, and Tenant shall, upon demand, provide Landlord with an additional security deposit equal to three (3) months’ Base Rent, if Landlord has required Tenant to make said payments by cashier’s check or to provide an additional security deposit, Tenant’s failure to make a payment by cashier’s check or to provide the additional security deposit shall be a default hereunder.

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18. LANDLORD’S RIGHT TO CURE DEFAULT; PAYMENTS BY TENANT. All covenants and agreements to be kept or performed by Tenant under this Lease shall be performed by Tenant at Tenant’s sole cost and expense and without any reduction of rent. If Tenant shall fail to perform any of its obligations under this Lease beyond any applicable notice and cure period, Landlord may, but shall not be obligated to, after three business (3) days’ prior written notice to Tenant, make any such payment or perform any such act on Tenant’s behalf without waiving its rights based upon any default of Tenant and without releasing Tenant from any obligations hereunder. Tenant shall pay to Landlord, within ten (10) days after delivery by Landlord to Tenant of statements therefore, an amount equal to the expenditures reasonably made by Landlord in connection with the remedying by Landlord of Tenant’s defaults pursuant to the provisions of this section.

19. INDEMNITY. Tenant shall indemnify, defend, protect, and hold harmless Landlord, its partners, subpartners, parent organization, affiliates, subsidiaries, and their respective officers, directors, legal representatives, successors, assigns, agents, servants, employees and independent contractors and each of them (collectively. “Landlord Parties”) from any and all loss, cost, damage, expense and liability (including without limitation court costs and reasonable attorneys’ fees) (collectively, “Claims”) incurred in connection with or arising from (a) any cause in or on the Premises during the Term or (b) any acts, omissions or negligence of Tenant or of any person claiming by, through or under Tenant, its partners, subpartners, parent organization, affiliates, subsidiaries and their respective officers, directors, contractors, agents, servants, employees, invitees, guests or licensees and each of them (collectively, “Tenant Parties”) at the Project; provided, however, that Tenant shall not be required to indemnify and hold Landlord harmless from any Claims for death or personal injury by any person, company or entity resulting from the negligence or willful misconduct of the Landlord Parties. Landlord_shall indemnify, defend, protect, and hold harmless Tenant from any Claim resulting from injuries to persons caused by the negligence of willful misconduct of Landlord or its partners, subpartners, parent organization, affiliates, subsidiaries and their respective officers, directors, agents, servants, employees and each of them. Tenant’s agreement to indemnify and hold Landlord harmless, and Landlord’s agreement to indemnify and hold Tenant harmless are not intended to and shall not relieve any insurance carrier of its obligations under policies required to be carried by Landlord or Tenant, respectively, pursuant to this Lease to the extent such policies cover the results of such acts, omissions or willful misconduct. The provisions of this section shall survive the expiration or sooner termination of this Lease. The Indemnified Parties need not first pay any Damages to be indemnified hereunder. This indemnity is intended to apply to the fullest extent permitted by applicable law. Notwithstanding the foregoing. Landlord shall have no obligation to compensate Tenant for consequential damages (including lost profits).

20. EXEMPTION OF LANDLORD FROM LIABILITY. Except as may be otherwise provided in section 19, Tenant hereby agrees that Landlord shall not be liable for injury to Tenant’s business or any loss of income therefrom or for loss of or damage to the merchandise, tenant improvements, fixtures, furniture, equipment, computers, files, automobiles, or other property of Tenant, Tenant’s employees, agents, contractors or invitees, or any other person in or about the Project, nor shall Landlord be liable for injury to the person of Tenant. Tenant’s employees, agents, contractors or invitees, whether such damage or injury is caused by or results from any cause whatsoever including, but not limited to, theft, criminal activity at the Project, negligent security measures, bombings or bomb scares, Hazardous Materials, fire, steam, electricity, gas, water or rain, flooding, breakage of pipes, sprinklers, plumbing, air conditioning or lighting fixtures, or from any other cause, whether said damage or injury results from conditions arising upon the Premises or upon other portions of the Project, or from other sources or places, or from new construction or the repair, alteration or improvement of any part of the Project. Landlord shall not be liable for any damages arising from any act or neglect of any employees, agents, contractors or invitees of any other tenant, occupant or user of the Project, nor from the failure of Landlord to enforce the provisions of the lease of any other tenant of the Project. Except as may be otherwise provided in section 19, Tenant, as a material part of the consideration to Landlord hereunder, hereby assumes all risk of damage to Tenant’s property or business or injury to persons in, upon or about the Project arising from any cause, including Landlord’s negligence or the negligence of its employees, agents or contractors, and Tenant hereby waives all claims in respect thereof against Landlord, its employees, agents and contractors.

21. LANDLORD’S LIABILITY. Tenant acknowledges that Landlord shall have the right to transfer all or any portion of its interest in the Project and to assign this Lease to the transferee. Tenant agrees that in the event of such a transfer Landlord shall automatically be released from all liability under this Lease to the extent the same arises after the date of such transfer, and Tenant hereby agrees to look solely to Landlord’s transferee for the performance of Landlord’s obligations hereunder after the date of the transfer including, but not limited to, all indemnity obligations. Upon such a transfer, Landlord shall, at its option, return Tenant’s security deposit to Tenant or transfer Tenant’s security deposit to Landlord’s transferee and, in either event, Landlord shall have no further liability to Tenant for the return of its security deposit. Subject to the rights of any lender holding a mortgage or deed of trust encumbering all or part of the Project, Tenant agrees to look solely to Landlord’s equity interest in the Project for the collection of any judgment requiring the payment of money by Landlord arising out of (a) Landlord’s failure to perform its obligations under this Lease or (b) the negligence or willful misconduct of Landlord, its partners, employees and agents. No other property or assets of Landlord shall be subject to levy, execution or other enforcement procedure for the satisfaction of any judgment or writ obtained by Tenant against Landlord. No partner, employee or agent of Landlord shall be personally liable for the performance of Landlord’s obligations hereunder or be named as a party in any lawsuit arising out of or related to, directly or indirectly, this Lease and the obligations of Landlord hereunder. The obligations under this Lease do not constitute personal obligations of the individual partners of Landlord, if any, and Tenant shall not seek recourse against the individual partners of Landlord or their assets.

22. SIGNS. Tenant shall not make any changes to the exterior of the Premises, install any exterior lights, decorations, balloons, flags, pennants, banners or painting, or erect or install any signs, windows or door lettering, placards, decorations or advertising media of any type which can be viewed from the exterior of the Premises, without Landlord’s prior written consent, which approval shall not be unreasonably withheld or delayed. Upon vacation of the Premises, Tenant shall remove all signs and repair, paint and/or replace the building facia surface to which its signs are attached. Tenant shall obtain all applicable governmental permits and approvals for signs and exterior treatments. All signs, decorations, advertising media, blinds, draperies and other window treatment or bars or other security installations visible from outside the Premises shall be subject to Landlord’s approval and conform in all respects to Landlord’s requirements.

23. PARKING. During the term and subject to the rules and regulations attached hereto as Exhibit “C,” as reasonably modified by Landlord from time to time (the “Rules”), Tenant shall be entitled to use the number of parking spaces set forth in section 1.13 in the Common Area parking lot of the Project. Tenant’s parking rights are in common with the parking rights of any other tenants of the Project, and all of Tenant’s parking spaces are unreserved parking spaces. Landlord reserves the right at any time to designate areas in the Common Areas where Tenant may or may not park (e.g. Landlord shall have the right to require Tenant to park solely in the parking spaces that are within the Premises). If Tenant commits or allows in the parking lot any of the activities prohibited by the Lease or the Rules, then Landlord shall have the right, without notice, in addition to such other rights and remedies that it may have, to remove or tow away the vehicle involved and charge the cost to Tenant, which cost shall be immediately payable by Tenant upon demand by Landlord. Tenant’s parking rights are the personal rights of Tenant, and Tenant shall not transfer, assign or otherwise convey its parking rights separate and apart from this Lease. All parking spaces may only be used for parking vehicles no larger than full-size passenger automobiles or pickup trucks. Landlord, in addition to its other remedies, shall have the right to remove or tow away any other vehicles. Landlord shall not be responsible for enforcing Tenant’s parking rights against any third parties provided, however, if another tenant is interfering with Tenant’s parking rights, Landlord shall either use good faith efforts to enforce Tenant’s parking rights against the interfering tenant or shall create an exclusive parking area adjacent to the Building for Tenant’s benefit. Landlord shall likewise have the right to create exclusive parking areas for the benefit of other tenants of the Project so long as Tenant’s

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parking rights are not violated. Landlord shall have no obligation to bring a legal action against the non-complying tenant. Tenant shall not permit or allow any vehicles that belong to or are controlled by Tenant or Tenant’s employees, suppliers, shippers, customers or invitees to be loaded, unloaded or parked in areas other than those designated by Landlord for such activities.

24. BROKER’S FEE. Tenant and Landlord each represent and warrant to the other that neither has had any dealings or entered into any agreements with any person, entity, broker or finder other than the persons, if any, listed in section 1.14, in connection with the negotiation of this Lease, and no other broker, person, or entity is entitled to any commission or finder’s fee in connection with the negotiation of this Lease, and Tenant and Landlord each agree to indemnify, defend and hold the other harmless from and against any claims, damages, costs, expenses, attorneys’ fees or liability for compensation or charges which may be claimed by any such unnamed broker, finder or other similar party by reason of any dealings, actions or agreements of the indemnifying party. The commission payable to the Brokers listed in Section 1.14 shall be paid by Landlord.

25. ESTOPPEL CERTIFICATE.

25.1 DELIVERY OF CERTIFICATE. Tenant shall from time to time, upon not less than ten (10) days’ prior written notice from Landlord, execute, acknowledge and deliver to Landlord a statement in writing certifying such information as Landlord may reasonably request including, but not limited to, the following: (a) that this Lease is unmodified and in full force and effect (or, if modified, stating the nature of such modification and certifying that this Lease, as so modified, is in full force and effect), (b) the date to which the Base Rent and other charges are paid in advance and the amounts so payable, (c) that there are not, to Tenant’s knowledge, any uncured defaults or unfulfilled obligations on the part of Landlord, or specifying such defaults or unfulfilled obligations, if any are claimed, (d) that all tenant improvements to be constructed by Landlord, if any, have been completed in accordance with Landlord’s obligations, and (e) that Tenant has taken possession of the Premises. Any such statement may be conclusively relied upon by any prospective purchaser or encumbrancer of the Project. Landlord also agrees to complete, on the same basis as Tenant above, a similar estoppel certificate requested by Tenant (with appropriate modifications to reflect a certificate being provided by Landlord).

25.2 FAILURE TO DELIVER CERTIFICATE. At Landlord’s option, the failure of Tenant to deliver such statement within such time shall constitute a default of Tenant hereunder, or it shall be conclusive upon Tenant that (a) this Lease is in full force and effect, without modification except as may be represented by Landlord, (b) there are no uncured defaults in Landlord’s performance, (c) not more than one month’s Base Rent has been paid in advance, (d) all tenant improvements to be constructed by Landlord, if any, have been completed in accordance with Landlord’s obligations, and (e) Tenant has taken possession of the Premises.

26. FINANCIAL INFORMATION. From time to time, at Landlord’s request, but not more often than once in any twelve month period, Tenant shall cause the following financial information to be delivered to Landlord, at Tenant’s sole cost and expense, upon not less than ten (10) days’ advance written notice from Landlord: (a) a current financial statement for Tenant and Tenant’s financial statements for the previous two accounting years, (b) a current financial statement for any guarantor(s) of this Lease and the guarantor’(s) financial statements for the previous two accounting years and (c) such other financial information pertaining to Tenant or any guarantor as Landlord or any lender or purchaser of Landlord may reasonably request. All financial statements shall be prepared in accordance with generally accepted accounting principals consistently applied and, if such is the normal practice of Tenant, shall be audited by an independent certified public accountant. Tenant hereby authorizes Landlord, from time to time, without notice to Tenant, to obtain a credit report or credit history on Tenant from any credit reporting company.

27. ENVIRONMENTAL MATTERS/HAZARDOUS MATERIALS.

27.1 HAZARDOUS MATERIALS DISCLOSURE CERTIFICATE. Prior to executing this Lease, Tenant has delivered to Landlord Tenant’s executed initial Hazardous Materials Disclosure Certificate (the “Initial HazMat Certificate”), a copy of which is attached hereto as Exhibit D. Tenant covenants, represents and warrants to Landlord that the information in the Initial HazMat Certificate is true and correct and accurately describes the use(s) of Hazardous Materials which will be made and/or used on the Premises by Tenant. Tenant shall, commencing with the date which is one year from the Commencement Date and continuing every year thereafter, deliver to Landlord an executed Hazardous Materials Disclosure Certificate (the “HazMat Certificate”) describing Tenant’s then-present use of Hazardous Materials on the Premises, and any other reasonably necessary documents and information as requested by Landlord. The HazMat Certificates required hereunder shall be in substantially the form attached hereto as Exhibit D.

27.2 DEFINITION OF HAZARDOUS MATERIALS. As used in this Lease, the term Hazardous Materials shall mean and include (a) any hazardous or toxic wastes, materials or substances, and other pollutants or contaminants, which are or become regulated by any Environmental Laws (defined below); (b) petroleum, petroleum by-products, gasoline, diesel fuel, crude oil or any fraction thereof; (c) asbestos and asbestos-containing material, in any form, whether friable or non-fraible; (d) polychlorinated biphenyls; (e) radioactive materials; (f) lead and lead-containing materials; (g) any other material, waste or substance displaying toxic, reactive, ignitable or corrosive characteristics, as all such terms are used in their broadest sense, and are defined or become defined by any Environmental Law; or (h) any materials which cause or threatens to cause a nuisance upon or waste to any portion of the Project or any surrounding property; or poses or threatens to pose a hazard to the health and safety of persons on the Premises, any other portion of the Project or any surrounding property. For purposes of this Lease, the term “Hazardous Materials” shall not include nominal amounts of ordinary household cleaners, office supplies and janitorial supplies which are not actionable under any Environmental Laws.

27.3 PROHIBITION; ENVIRONMENTAL LAWS. Subject to all of the terms and conditions of this section 27.3, Tenant shall be entitled to use in the Premises the Hazardous Materials disclosed on the HazMat Certificate attached to this Lease in the manner and in the amounts specified on the HazMat Certificate. Tenant shall not be entitled to use or store any Hazardous Materials on, in, or about any portion of the Premises and the Project that are not disclosed on the Hazmat Certificate without, in each instance, obtaining Landlord’s prior written consent thereto, which may be given or withheld in Landlord’s reasonable discretion. Any such usage and storage may only be to the extent of the quantities of Hazardous Materials as specified in the then-applicable HazMat Certificate as expressly approved by Landlord. In all events such usage and storage must at all times be in full compliance with any and all local, state and federal environmental, health and/or safely-related laws, statutes, orders, standards, courts’ decisions, ordinances, rules and regulations (as interpreted by judicial and administrative decisions), decrees, directives, guidelines, permits or permit conditions, currently existing and as amended, enacted, issued or adopted in the future which are or become applicable to Tenant or all or any portion of the Premises (collectively, the “Environmental Laws”) and in compliance with the recommendations of Landlord’s consultants Tenant agrees that any changes to the type and/or quantities of Hazardous Materials specified in the most recent HazMat Certificate may be implemented only with the prior written consent of Landlord, which consent may be given or withheld in Landlord’s reasonable discretion. Tenant shall not be entitled not permitted to install any tanks under, on or about the Premises for the storage of Hazardous Materials without the express written consent of Landlord, which may be given or withheld in Landlord’s sole discretion. Landlord shall have the right, in Landlord’s sole discretion, at all times during the Term of this Lease to (i) inspect the Premises, (ii) conduct tests and investigations to determine whether Tenant is in compliance with the provisions of this section 27 or to determine if Hazardous Materials are present in, on or about the Project, (iii) request lists of all Hazardous

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Materials used, stored or otherwise located on, under or about any portion of the Premises and/or the Common Areas, and (iv) to require Tenant to complete a survey of its use, storage and handling of Hazardous Materials in the Premises, using a form and following procedures designated by Landlord, in Landlord’s sole discretion (the “Survey”). Tenant shall reimburse Landlord for the cost of all such inspections, tests and investigations, and all costs associated with any Survey if it is determined that Tenant is not in compliance with its obligations under this section 27 and such non-compliance either has, or threatens to cause material contamination of the Premises. If as a result of an inspection, test or Survey Landlord determines, in Landlord’s sole discretion, that Tenant should implement or perform safety, security or compliance measures, Tenant shall within thirty (30) days after written request by Landlord perform such measures, at Tenant’s sole cost and expense. The aforementioned rights granted herein to Landlord and its representatives shall not create (a) a duty on Landlord’s part to inspect, test, investigate, monitor or otherwise observe the Premises or the activities of Tenant and Tenant Parties with respect to Hazardous Materials, including without limitation, Tenant’s operation, use and any remediation relating thereto, or (b) liability on the part of Landlord and its representatives for Tenant’s use, storage, disposal or remediation of Hazardous Materials, it being understood that Tenant shall be solely responsible for all liability in connection therewith.

27. 4 TENANT’S ENVIRONMENTAL OBLIGATIONS. Tenant shall give to Landlord immediate verbal and follow-up written notice of any spills, releases, discharges, disposals, emissions, migrations, removals or transportation of Hazardous Materials on, under or about any portion of the Premises or in any Common Areas that might materially contaminate the Project or are required to be reported to any governmental authority; provided that Tenant has actual, implied or constructive knowledge of such event(s). Tenant, at its sole cost and expense, covenants and warrants to promptly investigate, clean up, remove, restore and otherwise remediate (including, without limitation, preparation of any feasibility studies or reports and the performance of any and all closures) any spill, release, discharge, disposal, emission, migration or transportation of Hazardous Materials caused by Tenant or Tenant Parties such that the affected portions of the Project and any adjacent property are returned to the condition existing prior to the appearance of such Hazardous Materials. Any such investigation, clean up, removal, restoration and other remediation shall only be performed after Tenant has obtained Landlord’s prior written consent, which consent shall not be unreasonably withheld so long as such actions would not potentially have a material adverse long-term or short-term effect on any portion of the Project. Notwithstanding the foregoing, Tenant shall be entitled to respond immediately to an emergency without first obtaining Landlord’s prior written consent. Tenant, at its sole cost and expense, shall conduct and perform, or cause to be conducted and performed, all closures with respect to Tenant’s or Tenant Parties’ operations at the Premises as required by any Environmental Laws or any agencies or other governmental authorities having jurisdiction thereof. If Tenant fails to so promptly investigate, clean up, remove, restore, provide closure or otherwise so remediate, Landlord may, but without obligation to do so, take any and all steps necessary to rectify the same, and Tenant shall promptly reimburse Landlord, upon demand, for all costs and expenses to Landlord of performing investigation, cleanup, removal, restoration, closure and remediation work. All such work undertaken by Tenant, as required herein, shall be performed in such a manner so as to enable Landlord to make full economic use of the Premises and other portions of the Project after the satisfactory completion of such work.

27.5 ENVIRONMENTAL INDEMNITY - TENANT. In addition to Tenant’s other indemnity obligations under this Lease, Tenant agrees to, and shall, protect, indemnify, defend (with counsel reasonably acceptable to Landlord) and hold Landlord and the other Indemnities harmless from and against any and all loss, cost, damage, liability or expense (including, without limitation, diminution in value of any portion of the Premises or the Project, damages for the loss of or restriction on the use of rentable or usable space, and from any adverse impact of Landlord’s marketing, selling, leasing or subleasing of any space within the Project) arising at any time during or after the term of this Lease in connection with or related to, directly or indirectly, the use, presence, transportation, storage, disposal, migration, removal, spill, release or discharge of Hazardous Materials on, in or about any portion of the Project caused by Tenant or Tenant Parties. Neither the written consent of Landlord to the presence, use or storage of Hazardous Materials in, on, under or about any portion of the Project nor the strict compliance by Tenant with all Environmental Laws shall excuse Tenant from its obligations of indemnification pursuant hereto. Tenant shall not be relieved of its indemnification obligations under the provisions of this section 27.5 due to Landlord’s status as either an “owner” or “operator” under any Environmental Laws.

27.6 SURVIVAL. Tenant’s obligations and liabilities pursuant to the provisions of this section 27 shall survive the expiration or earlier termination of this Lease. The burden of proof hereunder shall be upon Tenant. For purposes hereof, the term “reasonable wear and tear” shall not include any deterioration in the condition or diminution of the value of any portion of the Project in any manner whatsoever related to, directly or indirectly, Hazardous Materials. Any such holdover by Tenant will be with Landlord’s consent, will not be terminable by Tenant in any event or circumstance and will otherwise be subject to the provisions of section 33 of this Lease.

27.7 No LIABILITY FOR ACTS OF OTHERS. Notwithstanding anything to the contrary contained in this Lease, Tenant shall only be liable pursuant to this section 27 for the acts of Tenant and Tenant Parties, and Tenant shall not be liable for the acts of persons or entities other than Tenant and Tenant Parties nor shall Tenant be responsible or liable for contamination that existed at the Premises on the Commencement Date or for contamination emanating from neighboring land.

27.8 REPRESENTATION BY LANDLORD. As of the date set forth in section 1.1, Landlord represents and warrants to Tenant that to Landlord’s actual knowledge it does not know of the existence at the Project of any Hazardous Material that (a) exists in material violation of any law or regulation and (b) poses a material and present danger to the health, life or safely of tenants. For purposes of this section, Landlord’s actual knowledge shall mean the actual knowledge of Scott Amling without duly of investigation. The foregoing representation and warranty shall apply only as of the date set forth in section 1.1, and shall not apply to any point in time thereafter.

27.9 ENVIRONMENTAL INDEMNITY – LANDLORD. For purposes of this section, “Non-Tenant Environmental Damages” shall mean damages for environmental contamination relating to Hazardous Materials in, on, under or about the Premises or Project that existed on the Premises prior to the Delivery Date or which are caused by Landlord, its agents or employees. In addition to Landlord’s other indemnity obligations under this Lease, if Tenant becomes legally obligated to pay Non-Tenant Environmental Damages, Landlord agrees to, and shall, protect, indemnify, defend (with counsel reasonably acceptable to Tenant) and hold Tenant harmless from and against any Non-Tenant Environmental Damages.

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28. SUBORDINATION.

28.1 EFFECT OF SUBORDINATION. This Lease, and any Option (as defined below) granted hereby, upon Landlord’s written election, shall be subject and subordinate to any ground lease, mortgage, deed of trust or any other hypothecation or security now or hereafter placed upon the Project and to any and all advances made on the security thereof and to all renewals, modifications, consolidations, replacements and extensions thereof, provided that the third party seeking such subordination execute a commercially reasonable form of subordination and non-disturbance agreement under the terms of which such party agrees not to disturb Tenant’s possession of the Premises and agrees to recognize all of Tenant’s rights under the Lease so long as Tenant is not in default thereunder beyond any applicable notice and cure period. Notwithstanding such subordination, Tenant’s right to quiet possession of the Premises shall not be disturbed if Tenant is not in default and so long as Tenant shall pay the rent and observe and perform all of the provisions of this Lease, unless this Lease is otherwise terminated pursuant to its terms. At the request of any mortgagee, trustee or ground lessor, Tenant shall attorn to such person or entity. If any mortgagee, trustee or ground lessor shall elect to have this Lease and any Options granted hereby prior to the lien of its mortgage, deed of trust or ground lease, and shall give written notice thereof to Tenant, this Lease and such Options shall be deemed prior to such mortgage, deed of trust or ground lease, whether this Lease or such Options are dated prior or subsequent to the date of said mortgage, deed of trust or ground lease or the date of recording thereof. In the event of the foreclosure of a security device, the new owner shall not (a) be liable for any act or omission of any prior landlord or with respect to events occurring prior to its acquisition of title, (b) be liable for the breach of this Lease by any prior landlord, (c) be subject to any offsets or defenses which Tenant may have against the prior Landlord or (d) be liable to Tenant for the return of its security deposit unless such security deposit was received by the new owner; provided, however, the forgoing shall not limit the new owner’s obligation to perform the ongoing obligations of the landlord under the lease including, but not limited to, the Landlord’s obligations with respect to the repair and maintenance of the Project.

28.2 EXECUTION OF DOCUMENTS. Tenant agrees to execute and acknowledge any documents Landlord reasonably requests Tenant execute to effectuate an attornment, a subordination, or to make this Lease or any Option granted herein prior to the lien of any mortgage, deed of trust or ground lease, as the case may be. Tenant’s failure to execute such documents within ten (10) days after written demand shall constitute a default by Tenant hereunder.

28.3 No EXISTING DEEDS OF TRUST. NO mortgages or deeds of trust presently encumber Landlord’s interest in the Project. Notwithstanding anything to the contrary contained in the Lease, Tenant shall not be obligated to subordinate its interest in the Lease to a mortgage or deed of trust obtained by Landlord after the date of this Lease unless the lender provides Tenant with a commercially reasonable nondisturbance agreement.

29. OPTIONS.

29.1 DEFINITION. As used in this Lease, the word “Option” has the following meaning: (1) the right or option to extend the term of this Lease or to renew this Lease, (2) the option or right of first refusal to lease the Premises or the right of first offer to lease the Premises or the right of first refusal to lease other space within the Project or the right of first offer to lease other space within the Project, and (3) the right or option to terminate this Lease prior to its expiration date or to reduce the size of the Premises. Any Option granted to Tenant by Landlord must be evidenced by a written option agreement attached to this Lease as a rider or addendum or said option shall be of no force or effect.

29.2 OPTIONS PERSONAL. Each Option granted to Tenant in this Lease, if any, is personal to the original Tenant and any Affiliate (as defined in 16.8) to whom Tenant assigns its interest in this Lease (an “Assuming Affiliate”) and may be exercised only by the original Tenant or an Assuming Affiliate while occupying the entire Premises and may not be exercised or be assigned, voluntarily or involuntarily, by or to any person or entity other than Tenant or an Assuming Affiliate, including, without limitation, any permitted transferee as defined in section 16. The Options, if any, herein granted to Tenant are not assignable separate and apart from this Lease, nor may any Option be separated from this Lease in any manner, either by reservation or otherwise. If at any time an Option is exercisable by Tenant or an Assuming Affiliate, the Lease has been assigned to a person or entity other than an Affiliate or a sublease exists as to any portion of the Premises to a person or entity other than an Affiliate, the Option shall be deemed null and void and neither Tenant nor any assignee or subtenant shall have the right to exercise the Option.

29.3 MULTIPLE OPTIONS. In the event that Tenant has multiple Options to extend or renew this Lease, a later Option cannot be exercised unless the prior Option to extend or renew this Lease has been so exercised.

29.4 EFFECT OF DEFAULT ON OPTIONS. Tenant shall have no right to exercise an Option during the time commencing from the date Landlord gives to Tenant a notice of default pursuant to section 17.1 and continuing until the noncompliance alleged in said notice of default is cured, or if Tenant is in default of any of the terms, covenants or conditions of this Lease beyond any applicable cure period and Landlord has proceeded to effect its remedies pursuant to Section 17.2 above. The period of time within which an Option may be exercised shall not be extended or enlarged by reason of Tenant’s inability to exercise an Option because of the provisions of this section.

30. LANDLORD RESERVATIONS. Landlord shall have the right: (a) to change the name and address of the Project or Building upon not less than ninety (90) days prior written notice; provided, however, in such event Landlord shall reimburse Tenant for all reasonable costs Tenant pays to third parties for the replacement of pre-printed stationary, address labels and other packaging in an amount not to exceed $5000; (b) to permit any tenant the exclusive right to conduct any business as long as such exclusive right does not conflict with any rights expressly given herein; and (c) to place signs, notices or displays upon the roof, interior or exterior of the Building or Common Areas of the Project. Landlord reserves the right to use the exterior walls of the Premises, and the area beneath, adjacent to and above the Premises together with the right to install, use, maintain and replace equipment, machinery, pipes, conduits and wiring through the Premises, which serve other parts of the Project provided that Landlord’s use does not unreasonably interfere with Tenant’s use of the Premises.

31. CHANGES TO PROJECT. Landlord shall have the right, in Landlord’s sole discretion, from time to time, to make changes to the size, shape, location, number and extent of the improvements comprising the Project (hereinafter referred to as “Changes”) including, but not limited to, the interior and exterior of buildings, the Common Areas, HVAC, electrical systems, communication systems, fire protection and detection systems, plumbing systems, security systems, parking control systems, driveways, entrances, parking spaces, parking areas and landscaped areas; provided, however, that Landlord shall not materially change the location of the exterior walls of the Building or materially change the location of the Common Areas within the Building in a way that would materially and adversely effect Tenant’s use of the Premises without the prior written consent of Tenant, which consent shall not be unreasonably withheld, conditioned or delayed, and shall not make any other changes if the effect of such changes would be to materially decrease Tenant’s rights or materially increase Tenant’s obligations under this Lease. In connection with the Changes, Landlord may, among other things, erect scaffolding or other necessary structures at the Project, limit or eliminate access to portions of the Project, including portions of the Common Areas, or perform work in the Building, which work may create noise, dust or leave debris in the Building so long as Landlord uses commercially reasonable efforts to minimize interference with Tenant’s use and occupancy of the Premises. Also so long as Landlord uses commercially reasonable efforts to minimize interference with Tenant’s use and occupancy of the Premises, Tenant hereby agrees that such Changes and Landlord’s actions in connection with such Changes shall in no way

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constitute a constructive eviction of Tenant or entitle Tenant to any abatement of rent. Landlord shall have no responsibility or for any reason be liable to Tenant for any direct or indirect injury to or interference with Tenant’s business arising from the Changes, nor shall Tenant be entitled to any compensation or damages from Landlord for any inconvenience or annoyance occasioned by such Changes or Landlord’s actions in connection with such Changes. If a Change will materially interfere with Tenant’s use of the Premises, Landlord shall use commercially reasonable efforts to provide Tenant with advance notice of such Change Landlord shall use commercially reasonable efforts to minimize disruption to Tenant’s business operations caused by Changes.

32. Intentionally deleted.

33. HOLDING OVER. If Tenant remains in possession of the Premises or any part thereof after the expiration or earlier termination of the term hereof with Landlord’s consent. such occupancy shall be a tenancy from month to month upon all the terms and conditions of this Lease pertaining to the obligations of Tenant, except that the Base Rent payable shall be the one hundred fifty percent (150%) of the Base Rent payable immediately preceding the termination date of this Lease, and all Options, if any, shall be deemed terminated and be of no further effect. If Tenant remains in possession of the Premises or any part thereof, after the expiration of the term hereof without Landlord’s consent. Tenant shall, at Landlord’s option, be treated as a tenant at sufferance or a trespasser. Nothing contained herein shall be construed to constitute Landlord’s consent to Tenant holding over at the expiration or earlier termination of the Lease term or to give Tenant the right to hold over after the expiration or earlier termination of the Lease term. Tenant hereby agrees to indemnify, hold harmless and defend Landlord from any cost, loss, claim or liability (including attorneys’ fees) Landlord may incur as a result of Tenant’s failure to surrender possession of the Premises to Landlord upon the termination of this Lease.

34. LANDLORD’S ACCESS.

34.1 ACCESS. Landlord and Landlord’s agents, contractors and employees shall have the right to enter the Premises at reasonable times upon reasonable advance notice to Tenant (except in the case of any emergency, where no advance notice shall be required) for the purpose of inspecting the Premises, performing any services required of Landlord, showing the Premises to prospective purchasers, lenders or tenants, undertaking safety measures and making alterations, repairs, improvements or additions to the Premises or to the Project; provided, however, that Landlord shall only have the right to show the Premises to prospective tenants during the last one hundred eighty (180) days of the term of this Lease. In the event of an emergency. Landlord may gain access to the Premises by any reasonable means, and Landlord shall not be liable to Tenant for damage to the Premises or to Tenant’s property resulting from such access. Landlord may at any time place on or about the Building “for sale” or “for lease” signs and Landlord may at any time during the last one hundred twenty (120) days of the term hereof place on or about the Premises “for lease” signs. During any such access. Landlord and its agents shall abide by Tenant’s reasonable safety, security and confidentiality measures.

34.2 KEYS. Landlord shall have the right to retain keys to the locks on the entry doors to the Premises and all interior doors at the Premises.

35. SECURITY MEASURES. Tenant hereby acknowledges that Landlord shall have no obligation whatsoever to provide guard service or other security measures for the benefit of the Premises or the Project, and Landlord shall have no liability to Tenant due to its failure to provide such services. Tenant assumes all responsibility for the protection of Tenant, its agents, employees, contractors and invitees and the property of Tenant and of Tenant’s agents, employees, contractors and invitees from acts of third parties. Nothing herein contained shall prevent Landlord, at Landlord’s sole option, from implementing security measures for the Project or any part thereof, in which event Tenant shall participate in such security measures and the cost thereof shall be included within the definition of Operating Expenses, and Landlord shall have no liability to Tenant and its agents, employees, contractors and invitees arising out of Landlord’s negligent provision of security measures, Landlord shall have the right, but not the obligation, to require all persons entering or leaving the Project to identify themselves to a security guard and to reasonably establish that such person should be permitted access to the Project.

36. EASEMENTS. Landlord reserves to itself the right, from time to time, to grant such easements, rights and dedications that Landlord deems necessary or desirable, and to cause the recordation of parcel maps and restrictions, so long as such easements, rights, dedications, maps and restrictions do not unreasonably interfere with the use of the Premises by Tenant. Tenant shall sign any of the aforementioned documents within ten (10) days after Landlord’s request, and Tenant’s failure to do so shall constitute a default by Tenant. The obstruction of Tenant’s view, air or light by any structure erected in the vicinity of the Project, whether by Landlord or third parties, shall in no way affect this Lease or impose any liability upon Landlord.

37. TRANSPORTATION MANAGEMENT. Tenant shall fully comply at its sole expense with all present or future programs implemented or required by any governmental or quasi-governmental entity or Landlord to manage parking, transportation, air pollution or traffic in and around the Project or the metropolitan area in which the Project is located.

38. SEVERABILITY. The invalidity of any provision of this Lease as determined by a court of competent jurisdiction shall in no way affect the validity of any other provision hereof.

39. TIME OF ESSENCE. Time is of the essence with respect to each of the obligations to be performed by Tenant and Landlord under this Lease.

40. DEFINITION OF ADDITIONAL RENT. All monetary obligations of Tenant to Landlord under the terms of this Lease, including, but not limited to, Base Rent, Tenant’s Percentage Share of Operating Expenses and late charges shall be deemed to be rent.

41. INCORPORATION OF PRIOR AGREEMENTS. This Lease and the attachments listed in section 1.15 contain all agreements of the parties with respect to the lease of the Premises and any other matter mentioned herein. No prior or contemporaneous agreement or understanding pertaining to any such matter shall be effective. Except as otherwise stated in this Lease, Tenant hereby acknowledges that no real estate broker nor Landlord nor any employee or agents of any of said persons has made any oral or written warranties or representations to Tenant concerning the condition or use by Tenant of the Premises or the Project or concerning any other matter addressed by this Lease.

42. AMENDMENTS. This Lease may be modified in writing only, signed by the parties in interest at the time of the modification.

43. NOTICES. All notices required or permitted by this Lease shall be in writing and may be delivered (a) in person (by hand, by messenger or by courier service), (b) by U.S. Postal Service regular mail, (c) by U.S. Postal Service certified mall, return receipt requested, (d) by U.S. Postal Service Express Mail, Federal Express or other overnight courier, or (e) by facsimile transmission, and shall be deemed sufficiently given if served in a manner specified in this section. The addresses set forth in section 1.16 of this Lease shall be the address of each party for notice purposes. Landlord or Tenant may by written notice to the other specify a different address for notice purposes, except that upon Tenant’s taking possession of the Premises, the Premises shall constitute Tenant’s address for the purpose of mailing or delivering notices to Tenant. A copy of all notices required or permitted to be given to Landlord hereunder shall be concurrently transmitted to such party or parties at

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such addresses as Landlord may from time to time hereinafter designate by written notice to Tenant. Any notice sent by regular mail or by certified mail, return receipt requested, shall be deemed given three (3) days after deposited with the U.S. Postal Service. Notices delivered by U.S. Express Mail, Federal Express or other courier shall be deemed given on the date delivered by the carrier to the appropriate party’s address for notice purposes. If any notice is transmitted by facsimile transmission, the notice shall be deemed delivered upon telephone confirmation of receipt of the transmission thereof at the appropriate party’s address for notice purposes. A copy of all notices delivered to a party by facsimile transmission shall also be mailed to the party on the date the facsimile transmission is completed. If notice is received on Saturday, Sunday or a legal holiday, it shall be deemed received on the next business day. Nothing contained herein shall be construed to limit Landlord’s right to serve any notice to pay rent or quit or similar notice by any method permitted by applicable law, and any such notice shall be effective if served in accordance with any method permitted by applicable law whether or not the requirements of this section have been met.

44. WAIVERS. NO waiver by Landlord or Tenant of any provision hereof shall be deemed a waiver of any other provision hereof or of any subsequent breach by Landlord or Tenant of the same or any other provision. Landlord’s consent to, or approval of, any act shall not be deemed to render unnecessary the obtaining of Landlord’s consent to or approval of any subsequent act by Tenant. The acceptance of rent hereunder by Landlord shall not be a waiver of any preceding breach by Tenant of any provision hereof, other than the failure of Tenant to pay the particular rent so accepted, regardless of Landlord’s knowledge of such preceding breach at the time of acceptance of such rent. No acceptance by Landlord of partial payment of any sum due from Tenant shall be deemed a waiver by Landlord of its right to receive the full amount due, nor shall any endorsement or statement on any check or accompanying letter from Tenant be deemed an accord and satisfaction. Tenant hereby waives California Code of Civil Procedure section 1179 and Civil Code section 3275 which allow tenants to obtain relief from the forfeiture of a lease. Tenant hereby waives for Tenant and all those claiming under Tenant all rights now or hereafter existing to redeem by order or judgment of any court or by legal process or writ Tenant’s right of occupancy of the Premises after any termination of this Lease.

45. COVENANTS. This Lease shall be construed as though Landlord’s covenants contained herein are independent and not dependent and Tenant hereby walves the benefit of any statute to the contrary. All provisions of this Lease to be observed or performed by Tenant are covenants.

46. BINDING EFFECT; CHOICE OF LAW. Subject to any provision hereof restricting assignment or subletting by Tenant, this Lease shall bind the parties, their heirs, personal representatives, successors and assigns. This Lease shall be governed by the laws of the state in which the Project is located, and any litigation concerning this Lease between the parties hereto shall be initiated in the county in which the Project is located.

47. ATTORNEYS’ FEES. If Landlord or Tenant brings an action to enforce the terms hereof or declare rights hereunder, the prevailing party in any such action, or appeal thereon, shall be entitled to its reasonable attorneys’ fees and court costs to be paid by the losing party as fixed by the court in the same or separate suit, and whether or not such action is pursued to decision or judgment. The attorneys’ fee award shall not be computed in accordance with any court fee schedule, but shall be such as to fully reimburse all attorneys’ fees and court costs reasonably incurred in good faith. Landlord shall be entitled to reasonable attorneys’ fees and all other costs and expenses incurred in the preparation and service of valid notices of default and consultations in connection therewith, whether or not a legal action is subsequently commenced in connection with such default. Landlord and Tenant agree that attorneys’ fees incurred with respect to defaults and bankruptcy are actual pecuniary losses within the meaning of section 365(b)(1)(B) of the Bankruptcy Code or any successor statute.

48. AUCTIONS. Tenant shall not conduct, nor permit to be conducted, either voluntarily or involuntarily, any auction or going-out-of-business sale upon the Premises or the Common Areas.

49. MERGER. The voluntary or other surrender of this Lease by Tenant, or a mutual cancellation thereof, or a termination by Landlord, shall not result in the merger of Landlord’s and Tenant’s estates and shall, at the option of Landlord, terminate all or any existing subtenancies or may, at the option of Landlord, operate as an assignment to Landlord of any or all of such subtenancies.

50. QUIET POSSESSION. Subject to the other terms and conditions of this Lease, and provided Tenant is not in default hereunder, Tenant shall have quiet possession of the Premises for the entire term hereof subject to all of the provisions of this Lease.

51. AUTHORITY. If Tenant is a corporation, trust, limited liability company, limited liability partnership or general or limited partnership, Tenant, and each individual executing this Lease on behalf of such entity, represents and warrants that such individual is duly authorized to execute and deliver this Lease on behalf of said entity, that said entity is duly authorized to enter into this Lease, and that this Lease is enforceable against said entity in accordance with its terms. If Tenant is a corporation, trust, limited liability company, limited liability partnership or other partnership, Tenant shall deliver to Landlord upon demand evidence of such authority satisfactory to Landlord.

52. CONFLICT. Except as otherwise provided herein to the contrary, any conflict between the printed provisions, exhibits, addenda or riders of this Lease and the typewritten or handwritten provisions, if any, shall be controlled by the typewritten or handwritten provisions.

53. MULTIPLE PARTIES. If more than one person or entity is named as Tenant herein, the obligations of Tenant shall be the joint and several responsibility of all persons or entities named herein as Tenant. Service of a notice in accordance with section 43 on one Tenant shall be deemed service of notice on all Tenants.

54. INTERPRETATION. This Lease shall be interpreted as if it was prepared by both parties, and ambiguities shall not be resolved in favor of Tenant because all or a portion of this Lease was prepared by Landlord. The captions contained in this Lease are for convenience only and shall not be deemed to limit or alter the meaning of this Lease. As used in this Lease, the words tenant and landlord include the plural as well as the singular. Words used in the neuter gender include the masculine and feminine gender. For the purposes of this agreement, “Lease” shall collectively mean this document and all Exhibits, riders and addenda to this document.

55. PROHIBITION AGAINST RECORDING. Neither this Lease, nor any memorandum, affidavit or other writing with respect thereto, shall be recorded by Tenant or by anyone acting through, under or on behalf of Tenant. Landlord shall have the right to record a memorandum of this Lease, and Tenant shall execute, acknowledge and deliver to Landlord for recording any memorandum prepared by Landlord.

56. RELATIONSHIP OF PARTIES. Nothing contained in this Lease shall be deemed or construed by the parties hereto or by any third party to create the relationship of principal and agent, partnership, joint venture or any association between Landlord and Tenant.

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57. RULES AND REGULATIONS. Tenant agrees to abide by and conform to the Rules and to cause its employees, suppliers, customers and invitees to so abide and conform. Landlord shall have the right, from time to time, to modify, amend and enforce the Rules in a reasonable and nondiscriminatory manner. Landlord shall not be responsible to Tenant for the failure of other persons, including, but not limited to, other tenants, their agents, employees and invitees, to comply with the Rules except as specifically set forth in this Lease. Modifications or amendments to the Rules shall be binding upon Tenant provided that Tenant has received written notice thereof.

58. RIGHT TO LEASE. Landlord reserves the absolute right to effect such other tenancies in the Project as Landlord in its sole discretion shall determine, and Tenant is not relying on any representation that any specific tenant or number of tenants will occupy the Project.

59. CONFIDENTIALITY. Tenant acknowledges and agrees that the terms of this Lease are confidential and constitute proprietary information of Landlord. Disclosure of the terms hereof could adversely affect the ability of Landlord to negotiate other leases with respect to the Project and may impair Landlord’s relationship with other tenants of the Project. Tenant agrees that it and its partners, officers, directors, employees shall use commercially reasonable efforts not disclose the terms of this Lease to any person or entity except (a) the brokers, attorneys and accountants employed by Tenant who are involved in this transaction; (b) as may be required by the SEC or other governmental agency; (c) as may be required in connection with any financing, merger and acquisition transaction or stock sale by Tenant, and (d) as required in any legal proceeding or in connection with any other mandatory disclosure obligation of Tenant, without the prior written consent of Landlord, which may be given or withheld by Landlord, in Landlord’s sole discretion. Tenant shall instruct its brokers, attorneys and accountants to maintain the confidentiality of the terms of this Lease. It is understood and agreed that damages alone would be an inadequate remedy for the breach of this provision by Tenant, and Landlord shall also have the right to seek specific performance of this provision and to seek injunctive relief to prevent its breach or continued breach.

60. WAIVER OF JURY TRIAL. LANDLORD AND TENANT HEREBY WAIVE THEIR RESPECTIVE RIGHT TO TRIAL BY JURY OF ANY CAUSE OF ACTION, CLAIM, COUNTERCLAIM OR CROSS-COMPLAINT IN ANY ACTION, PROCEEDING AND/OR HEARING BROUGHT BY EITHER LANDLORD AGAINST TENANT OR TENANT AGAINST LANDLORD ON ANY MATTER WHATSOEVER ARISING OUT OF, OR IN ANY WAY CONNECTED WITH, THIS LEASE, THE RELATIONSHIP OF LANDLORD AND TENANT, TENANT’S USE OR OCCUPANCY OF THE PREMISES, OR ANY CLAIM OF INJURY OR DAMAGE, OR THE ENFORCEMENT OF ANY REMEDY UNDER ANY LAW, STATUTE, OR REGULATION, EMERGENCY OR OTHERWISE, NOW OR HEREAFTER IN EFFECT.

LANDLORD AND TENANT ACKNOWLEDGE THAT THEY HAVE CAREFULLY READ AND REVIEWED THIS LEASE AND EACH TERM AND PROVISION CONTAINED HEREIN AND, BY EXECUTION OF THIS LEASE, SHOW THEIR INFORMED AND VOLUNTARY CONSENT THERETO. THE PARTIES HEREBY AGREE THAT, AT THE TIME THIS LEASE IS EXECUTED, THE TERMS OF THIS LEASE ARE COMMERCIALLY REASONABLE AND EFFECTUATE THE INTENT AND PURPOSE OF LANDLORD AND TENANT WITH RESPECT TO THE PREMISES. TENANT ACKNOWLEDGES THAT IT HAS BEEN GIVEN THE OPPORTUNITY TO HAVE THIS LEASE REVIEWED BY ITS LEGAL COUNSEL PRIOR TO ITS EXECUTION PREPARATION OF THIS LEASE BY LANDLORD OR LANDLORD’S AGENT AND SUBMISSION OF SAME TO TENANT SHALL NOT BE DEEMED AN OFFER BY LANDLORD TO LEASE THE PREMISES TO TENANT OR THE GRANT OF AN OPTION TO TENANT TO LEASE THE PREMISES. THIS LEASE SHALL BECOME BINDING UPON LANDLORD ONLY WHEN FULLY EXECUTED BY BOTH PARTIES AND WHEN LANDLORD HAS DELIVERED A FULLY EXECUTED ORIGINAL OF THIS LEASE TO TENANT.

LANDLORD:

The Realty Associates Fund III, L.P., a Delaware limited partnership

By:	Realty Associates Fund III GP Limited Partnership, a Delaware limited partnership, its general partner
	By:	Realty Associates Fund III LLC, a Delaware limited liability company, its sole general partner
		By:	Realty Associates Fund III Trust, a Massachusetts business trust, sole Member
			By:	/s/ Scott W. Amling
				(Officer)  Scott W. Amling
				Regional Director

By:	Realty Associates Fund III Texas Corporation, a Texas corporation, general partner
	By:	/s/ Scott W. Amling
		(Officer)  Scott W. Amling                 Regional Director

TENANT*:

Ion America Corporation, a Delaware corporation

By:	/s/ Rick Foreman
	Rick Foreman
	(print name)
Its:	Vice President, Finance & Admin
	(print title)
By:	/s/ KR Sridhar
	KR Sridhar
	(print name)
Its:	President & CEO
	(print title)

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* If Tenant is a corporation, the authorized officers must sign on behalf of the corporation and indicate the capacity in which they are signing. The Lease must be executed by the president or vice president and the secretary or assistant secretary, unless the bylaws or a resolution of the board of directors shall otherwise provide, in which event, the bylaws or a certified copy of the resolution, as the case may be, must be attached to this Lease.

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EXHIBIT A

PREMISES

Exhibit A is intended only to show the general layout of the Premises, and shall not be interpreted to increase the size of the Premises beyond the number of leasable square feet set forth in Section 1.5. Exhibit A is not to be scaled and any measurements or distances shown on Exhibit A are approximates only.

[to be attached]

EXHIBIT A

EXHIBIT B

Intentionally deleted

EXHIBIT C

RULES AND REGULATIONS

GENERAL RULES

Tenant shall faithfully observe and comply with the following Rules and Regulations:

1. Tenant shall not alter any locks or install any new or additional locks or bolts on any doors or windows of the Premises without obtaining Landlord’s prior written consent, Tenant shall bear the cost of any lock changes or repairs required by Tenant.

2. Access to the Project may be refused unless the person seeking access has proper identification or has a previously received authorization for access to the Project. Landlord and its agents shall in no case be liable for damages for any error with regarding to the admission to or exclusion from the Project of any person. In case of invasion, mob, riot, public excitement or other commotion, Landlord reserves the right to prevent access to the Project during the continuance thereof by any means it deems appropriate for the safety and protection of life and property.

3. No cooking shall be done or permitted on the Premises, nor shall the Premises be used for any improper, objectionable or immoral purposes. Notwithstanding the foregoing, Underwriters’ Laboratory-approved equipment and microwave ovens may be used in the Premises for heating food and brewing coffee, tea, hot chocolate and similar beverages for employees and visitors of Tenant, provided that such use is in accordance with all applicable federal, state and city laws, codes, ordinances, rules and regulations; and provided further that such cooking does not result in odors escaping from the Premises.

4. No boring or cutting for wires shall be allowed without the consent of Landlord which consent shall not be unreasonably withheld or delayed. Tenant shall not install any radio or television antenna, satellite dish, loudspeaker or other similar device on the roof or exterior walls of the Building. Tenant shall not interfere with broadcasting or reception from or in the Project or elsewhere.

5. Landlord reserves the right to exclude or expel from the Project any person who, in the judgment of Landlord, is intoxicated or under the influence of liquor or drugs, or who shall in any manner do any act in violation of any of these Rules and Regulations.

6. Tenant shall store all its trash and garbage within the interior of the Premises or in other locations approved by Landlord, in Landlord’s sole discretion. No material shall be placed in the trash boxes or receptacles if such material is of such nature that it may not be disposed of in the ordinary and customary manner of removing and disposing of trash in the vicinity of the Project without violation of any law or ordinance governing such disposal.

7. Tenant shall comply with all safety, fire protection and evacuation procedures and regulations established by Landlord or any governmental agency.

PARKING RULES

1. Tenant shall not permit or allow any vehicles that belong to or are controlled by Tenant or Tenant’s employees, suppliers, shippers, customers or invitees to be loaded, unloaded or parked in areas other than those designated by Landlord for such activities and at times approved by Landlord. Users of the parking area will obey all posted signs and park only in the areas designated for vehicle parking. Tenant and its customers, employees, shippers and invitees shall comply with all rules and regulations adopted by Landlord from time to time relating to truck parking and/or truck loading and unloading.

2. Landlord reserves the right to relocate all or a part of parking spaces within the parking area.

3. Landlord will not be responsible for any damage to vehicles, injury to persons or loss of property, all of which risks are assumed by the party using the parking area.

4. The maintenance, washing, waxing or cleaning of vehicles in the parking area or Common Areas is prohibited.

5. Tenant shall be responsible for seeing that all of its employees, agents, contractors and invitees comply with the applicable parking rules, regulations, laws and agreements.

6. At Landlord’s request, Tenant shall provide Landlord with a list which includes the name of each person using the parking facilities based on Tenant’s parking rights under this Lease and the license plate number of the vehicle being used by that person. Tenant shall provide Landlord with an updated list within five (5) days after any part of the list becomes inaccurate.

In accordance with the terms of Section 57 of the Lease, Landlord reserves the right at any time to change or rescind any one or more of these Rules and Regulations, or to make such other and further reasonable Rules and Regulations as in Landlord’s judgment may from time to time be necessary for the management, safety, care and cleanliness of the project, and for the preservation of good order therein, as well as for the convenience of other occupants and tenants therein; provided, however, any new rule that will materially and adversely interfere with Tenant’s business operations (as they exist on the Commencement Date) shall require Tenant’s prior written consent (such consent not to be unreasonably withheld). Landlord may waive any one or more of these Rules and Regulations for the benefit of any particular tenant, but no such waiver by Landlord shall be construed as a waiver of such Rules and Regulations in favor of any other tenant, nor prevent Landlord from thereafter enforcing any such Rules or Regulations against any or all tenants of the Project. Tenant shall be deemed to have read these Rules and Regulations and to have agreed to abide by them as a condition of its occupancy of the Premises.

EXHIBIT D

Form of HazMat Certificate

General Information

Name of Responding Company: Ion America

Mailing Address: PO Box 97, 543 NASA Research Park, Moffett Field, CA 94035

Signature:

Title: VP Technology Development Phone: 650-964-6444 x202

Date: 3/31/05 Age of Facility: unknown Length of Occupancy: new tenant

Major products manufactured and/or activities conducted on the property: Development and pilot manufacture of fuel cell electrical power generators.                                                                                              

Type of Business Activity(ies):	Hazardous Materials Activities:
(check all that apply)	(check all that apply)
x          machine shop x          light assembly x          research and development            product service or repair            photo processing            automotive service and repair            manufacturing            warehouse            integrated/printed circuit x         chemical/pharmaceutical product	degreasing x         chemical/etching/milling            wastewater treatment            painting            striping            cleaning x         printing x         analytical lab            plating            chemical/missing/synthesis            silkscreen x         lathe/mill machining            deionizer water product            photo masking            wave solder            metal finishing

HAZARDOUS MATERIALS/WASTE HANDLING AND STORAGE

A.         Are hazardous materials handled on any of your shipping and receiving docks in container quantities greater than one gallon? x             Yes              No

B.         If Hazardous materials or waste are stored on the premises, please check off the nature of the storage and type(s) of materials below:

Types of Storage Container	Type of Hazardous Materials and/or Waste Stored
(list above-ground storage only)
x         1 gallon or 3 liter bottles/cans            5 to 30 gallon carboys x         55 gallon drums            tanks	acid            phenol            caustic/alkaline cleaner            cyanide            photo resist stripper            paint x         flammable solvent            gasoline/diesel fuel            nonflammable/chlorinated solvent x         oil/cutting fluid

C.         Do you accumulate hazardous waste onsite? x             Yes              No

If yes, how is it being handled?

           on-site treatment or recovery

           discharged to sewer

x         hauled offsite                         If hauled offsite, by whom VENDOR NOT YET SELECTED

           incineration

D.         Indicate your hazardous waste storage status with Department of Health Services:

           generator

           interim status facility

x         permitted TSDF

           none of the above

WASTEWATER TREATMENT/DISCHARGE

A.         Do you discharge industrial wastewater to:

           sewer

           storm drain

           surface water

x         no industrial discharge

B. Is your industrial wastewater treated before discharge?              Yes              No

If yes, what type of treatment is being conducted?

           neutralization

           metal hydroxide formation

           closed-loop treatment

           cyanide destruct

           HF treatment

           other

SUBSURFACE CONTAINMENT OF HAZARDOUS MATERIALS/WASTES

A. Are buried tanks/sumps being used for any of the following:

           hazardous waste storage

           chemical storage

           gasoline/diesel fuel storage

           waste treatment

           wastewater neutralization

           industrial wastewater treatment

x         none of the above

B. If buried tanks are located onsite, indicate their construction:

           steel                                 fiberglass                                 concrete

           inside open vault                     double walled

C. Are hazardous materials or untreated industrial wastewater transported via buried piping to tanks, process areas or treatment areas?              Yes              No

D. Do you have wet floors in your process areas?              Yes x             No

If yes, name processes:                                                                                              

E. Are abandoned underground tanks or sumps located on the property?              Yes              No         NOT TO OUR KNOWLEDGE

HAZARDOUS MATERIALS SPILLS

A. Have hazardous materials ever spilled to:

           the sewer

           the storm drain

           onto the property

x         no spills have occurred

B. Have you experienced any leaking underground tanks or sumps?              Yes x             No

C. If spills have occurred, were they reported?              Yes              No

Check which the government agencies that you contacted regarding the spill(s):

           Department of Health Services

           Department of Fish and Game

           Environmental Protection Agency

           Regional Water Quality Control Board

           Fire Department

D. Have you been contacted by a government agency regarding soil of groundwater contamination on your site?              Yes x             No

Do you have exploratory wells onsite?              Yes x             No

If yes, indicate the following:

Number of wells:                               Approximate depth of wells:                              Well diameters:                 

PLEASE ATTACH ENVIRONMENTAL REGULATORY PERMITS, AGENCY REPORTS THAT APPLY TO YOUR OPERATION AND HAZARDOUS WASTE MANIFESTS.

Check off those enclosed:

           Hazardous Materials Inventory Statement, HMIS

           Hazardous Materials Management Plan, HMMP

           Department of Health Services, Generatory/ Inspection Report

           Underground Tank Registrations

           Industrial Wastewater Discharge Permit

           Hazardous Waste Manifest

EXHIBIT E

WORK LETTER AGREEMENT

This Work Letter Agreement is attached to a Standard Industrial Lease (the “Lease”) entered into between The Realty Associates Fund III, L.P. (“Landlord”), and Ion America Corporation (“Tenant”) covering certain premises (the “Premises”) more particularly described in the Lease, and is incorporated into the Lease by this reference.

1. Tenant Improvements. For purposes of this Lease, the “Tenant Improvements” shall mean the improvements to the Premises described on the Final Construction Drawings (as defined below). All Tenant Improvements made to the Premises shall be performed by Tenant. Subject to the reimbursement limitations set forth in section 2.2 below, the Tenant Improvements shall be paid for from the Tenant Improvement Allowance (as defined below) or shall be paid for by Tenant, at Tenant’s sole cost and expense. The Tenant Improvements to be constructed by Tenant shall include, but shall not be limited to, demolition, concrete work, iron work, rough and finish carpentry, insulation, sheet metal, glass and glazing, doors, door frames and hardware, dry wall, acoustical ceiling, flooring, painting and wall coverings, accessories and partitions, kitchen equipment, fire extinguishers and cabinets, window coverings, plumbing. HVAC equipment, relocation of existing and installation of new fire sprinkler heads, electrical, prefabricated partitions, telephone systems, cabling systems, final clean-up and labor, miscellaneous specialties, planning, engineering, plan checking, permitting, architectural and other design costs, general contractor and subcontractor general conditions, overhead and profit, moving and insurance costs, signage, consulting, relocation, furniture, cabling and landlord oversight fees. Subject to Landlord’s obligations under section 2.2 of the Lease, compliance with the Americans with Disabilities Act and all other handicap regulations relating to the construction of the Tenant Improvements or the use or occupancy of the Premises shall be paid for by Tenant from the Tenant Improvement Allowance or Tenant’s own funds.

2. Tenant Improvement Allowance.

2.1 Tenant Improvement Allowance.

(a) Allowance. Tenant shall be entitled to a Tenant Improvement Allowance (the “Tenant Improvement Allowance”) in a total amount equal to Two Million Two Hundred Fifty Thousand Dollars ($2,250,000.00).

(b) Unused Allowance. If Tenant does not use the entire Tenant Improvement Allowance, any unused portion of the Tenant Improvement Allowance shall be allocated to payment of the first Base Rent payments due under the Lease after the January 2006 Base Rent (which Tenant has prepaid). Tenant shall notify Landlord on or before December 31, 2005 of what portion of the Tenant Improvement Allowance, if any, it has elected to apply to the payment of Base Rent.

(c) Limitation. In no event shall Landlord be obligated to make disbursements pursuant to this Work Letter Agreement in a total amount which exceeds the Tenant Improvement Allowance.

(d) Final Distribution. Prior to December 31, 2005, Tenant shall have requested disbursement of the entire Tenant Improvement Allowance for one or more Tenant Improvement Allowance Items (as defined below) or for the payment of Base Rent, all in accordance with the requirements of this Work Letter Agreement. It being the intention of Landlord and Tenant that prior to December 31, 2005 the entire Tenant Improvement Allowance be (i) disbursed in accordance with the requirements of this Work Letter Agreement or (ii) be allocated by Tenant to the payment of Base Rent as provided in (b) above.

2.2 Disbursement of the Tenant Improvement Allowance.

(a) Tenant Improvement Allowance Items. The Tenant Improvement Allowance shall be disbursed by Landlord only for the following items and costs (collectively the “Tenant Improvement Allowance Items”):

(i) Payment of the fees of the “Architect” and the “Engineers,” as those terms are defined in section 3.1 of this Work Letter Agreement;

(ii) The payment of plan check, permit and license fees relating to construction of the Tenant Improvements;

(iii) The cost of the construction of the Tenant Improvements, including, without limitation, testing and inspection costs, trash removal costs, and contractors’ fees and general conditions;

(iv) The cost of any changes to the Final Construction Drawings (as that term is defined in section 3.3 of this Work Letter Agreement) or Tenant Improvements required by any governmental agency;

(v) Sales and use taxes and Title 24 fees.;

(vi) the cost of any oversight fees owed to Landlord (which fees shall not exceed $12,500 in the aggregate);

(vii) signage costs, exterior improvement costs and any other items identified in Section 1 above; and

(vi) The cost of relocating to the Premises (e.g., moving costs), consulting fees relating to Tenant’s move to the Premises and the cost of furniture, fixtures, cabling and equipment (including the Generator (as defined in the Addendum)) Tenant desires to install in the Premises (collectively, “FF&E and Moving Costs”).

(b) Disbursement. During the construction of the Tenant Improvements, Landlord shall make disbursements of the Tenant Improvement Allowance for Tenant Improvement Allowance Items and shall release monies as follows:

(i) Disbursements. Not more often than once in any thirty (30) day period, Landlord shall disburse to Tenant, or upon written request from Tenant, Tenant’s general contractor, monies from the Tenant Improvement Allowance. Prior to Landlord making a disbursement, Tenant shall deliver to Landlord: (A) a request for payment, approved by Tenant, in a form which is reasonably acceptable to Landlord which shows the percentage of completion by trade of the Tenant Improvements; (B) invoices from all of Tenant’s Agents (as defined below), for labor rendered and materials delivered with respect to such payment request in an amount not less than the amount of the Tenant Improvement Allowance Tenant has requested be reimbursed; (C) copies of executed mechanic’s lien releases from all of Tenant’s Agents which shall comply with the appropriate provisions of California Civil Code Section 3262(d); and (D) all other information reasonably

requested by Landlord. Within fifteen (15) days after Landlord has received all of this information, Landlord shall deliver a check to Tenant or, at Tenant’s request, to Tenant’s general contractor, in an amount equal to the actual monies paid by Tenant to Tenant’s Agents with respect to such payment request.

(ii) FF&E and Moving Cost Disbursement. Tenant shall have the right at any time to request the disbursement of up to $500,000 of the Tenant Improvement Allowance to compensate Tenant for FF&E and Moving Costs that Tenant may incur (the “Initial Payment”). Tenant shall not be obligated to have incurred any FF&E and Moving Costs in order to receive the Initial Payment. If Tenant requests that it be reimbursed for FF&E and Moving Costs in excess of the Initial Payment. Tenant shall provide Landlord with bills from the vendors who sold the FF&E to Tenant or provided moving assistance and any other back-up documentation reasonably requested by Landlord prior to Landlord being obligated to disburse to Tenant from the Tenant Improvement Allowance additional FF&E and Moving Costs.

(iii) Final Completion. Within thirty (30) days after the Tenant Improvements have been completed, Tenant shall deliver to Landlord (A) properly executed mechanics lien releases in compliance with California Civil Code Section 3262(d)(3) or Section 3262(d)(4); and (B) a certificate from the Architect, in a form reasonably acceptable to Landlord, certifying that the construction of the Tenant Improvements in the Premises has been substantially completed. Within fifteen (15) days after receiving the foregoing information, Landlord shall reimburse to Tenant any additional costs of constructing the Tenant Improvements to the extent not previously paid for in accordance with (i) above.

3. Space Plan and Construction Drawings.

3.1 Space Plan. Attached hereto as Exhibit 1 is a space plan describing the improvements Tenant will make to the Premises (the “Space Plan”).

3.2 Construction Drawings. Tenant shall use AP+1, or another architect reasonably acceptable to Landlord, to prepare construction drawings for the improvements described on the Space Plan (the “Architect”). In addition, Tenant shall retain engineering consultants (the “Engineers”) that are reasonably acceptable to Landlord to prepare all plans and engineering drawings relating to the structural, mechanical, electrical, plumbing, HVAC, life safety, and sprinkler work in the Premises. The plans and specifications to be prepared by Architect and the Engineers hereunder shall reflect only the improvements described on the Space Plan and shall be known collectively as the “Construction Drawings.” Tenant and Architect shall verify, in the field, the dimensions of the Premises and the conditions at the Premises, and Tenant and Architect shall be solely responsible for the same, and Landlord shall have no responsibility in connection therewith. Landlord’s review of the Construction Drawings are for its sole benefit and Landlord shall have no liability to Tenant or Tenant’s Agents arising out of or based on Landlord’s review. Accordingly, notwithstanding that any Construction Drawings are reviewed by Landlord or its space planner, architect, engineers and consultants, and notwithstanding any advice or assistance which may be rendered to Tenant or Tenant’s Agents by Landlord or Landlord’s space planner, architect, engineers and consultants. Landlord shall have no liability whatsoever in connection therewith and shall not be responsible for any omissions or errors arising therefrom.

3.3 Preparation of Construction Drawings. Tenant shall promptly cause the Architect and the Engineers to complete the Construction Drawings which shall be comprised of a fully coordinated set of architectural, structural, mechanical, electrical and plumbing working drawings in a form which will allow Tenant to obtain all applicable permits (collectively, the “Final Construction Drawings”) and shall submit three (3) copies of the Final Construction Drawings to Landlord for Landlord’s approval, which shall not be unreasonably withheld, conditioned or delayed. Landlord shall advise Tenant within five (5) business days after Landlord’s receipt of the Final Construction Drawings for the Premises if the same are unsatisfactory or incomplete in any respect, as reasonably determined by Landlord. If Tenant is so advised, Tenant shall immediately revise the Final Construction Drawings to reflect any reasonable comments of Landlord.

3.4 Permits and Changes. The Final Construction Drawings shall be approved by Landlord prior to the commencement of construction of the Tenant Improvements. After approval by Landlord of the Final Construction Drawings. Tenant may submit the same to the City of Sunnyvale in order to obtain all applicable building permits. Tenant hereby agrees that neither Landlord nor Landlord’s consultants shall be responsible for obtaining any building permits or a certificate of occupancy for the Premises and that obtaining the same shall be Tenant’s sole responsibility; provided, however, that Landlord shall cooperate with Tenant in executing permit applications and performing other ministerial acts reasonably necessary to enable Tenant to obtain any such permits or certificate of occupancy. Tenant may, from time to time make changes to the Final Construction Drawings, provided that no material changes, modifications or alterations in the Final Construction Drawings may be made without the prior written consent of Landlord, which consent shall not be unreasonably withheld or delayed.

3.5 Compliance with Laws. Tenant shall be solely responsible for constructing the Tenant Improvements in compliance with all laws.

4. Construction of Tenant Improvements.

4.1 Tenant’s Selection of Contractors.

(a) The Contractor. The general contractor for the construction of the Tenant Improvements shall be McLarney Construction (the “Contractor”).

(b) Tenant’s Agents. All subcontractors, laborers, materialmen, and suppliers used by Tenant (such subcontractors, laborers, materialmen, and suppliers, and the Contractor to be known collectively as “Tenant’s Agents”) must be licensed by the State of California. All of Tenant’s Agents shall be experienced in performing the work they have agreed to perform in similar buildings.

4.2 Construction of Tenant Improvements by Tenant’s Agents.

(a) Construction Contract. Tenant shall enter into a construction contract (the “Contract”) for the construction of the Tenant Improvements.

(b) Tenant’s Agents.

(i) Indemnity. Subject to the terms and conditions of the Lease, Tenant’s indemnification set forth in the Lease shall also apply with respect to any and all damages, cost, loss or expense (including attorneys fees) related in any way to any act or omission of Tenant or Tenant’s Agents, or anyone directly or indirectly employed by any of them, or in connection with Tenant’s non-payment of any amount arising out of the Tenant Improvements. By way of example, and not limitation, Tenant shall indemnify and defend Landlord from any Damages to the Premises caused by the actions of the persons constructing the Tenant Improvements.

(ii) Warranty. Each of Tenant’s Agents shall guarantee to Tenant and for the benefit of Landlord that the portion of the Tenant Improvements for which it is responsible shall be free from any defects in workmanship and materials for a period of not less than one (1) year from the Commencement Date of the Lease, if such warranty is available on commercially reasonable terms. The correction of any defective work shall include, without additional charge, all additional expenses and damages incurred in connection with the removal or replacement of all or any part of the Tenant Improvements, and/or any other Building improvements that may be damaged or disturbed thereby. All such warranties or guarantees shall be contained in the Contract or applicable subcontract and shall inure to the benefit of both Landlord and Tenant. Tenant covenants to give to Landlord any assignment or other assurances which may be necessary to effect such right of direct enforcement.

(iii) Insurance Requirements.

(A) General Coverages. All of Tenant’s Agents (or the Contractor on behalf of such parties) shall carry worker’s compensation insurance covering all of their respective employees, and shall also carry public liability insurance, including property damage, all with limits, in form and with companies as are required to be carried by Tenant pursuant to section 10.1 of the Lease. Tenant’s Agents shall not be entitled to satisfy their insurance obligations through self-insurance.

(B) Special Coverages. Tenant shall carry “Builder’s All Risk” insurance in a commercially reasonable amount covering the construction of the Tenant Improvements, and such other insurance as Landlord may reasonably require, it being understood and agreed that the Tenant Improvements shall be insured by Tenant during the construction period and throughout the term of the Lease.

(C) General Terms. Certificates for all insurance carried pursuant to this section shall be delivered to Landlord before the commencement of construction of the Tenant Improvements and before any equipment is moved onto the site. All such policies of insurance shall name Landlord as an additional insured and must contain a provision that the company writing the policy will give Landlord thirty (30) days prior written notice of any cancellation or lapse of the effective date or any reduction in the amounts of such insurance. In the event that the Tenant Improvements are damaged by any cause during the course of the construction thereof. Tenant shall immediately repair the same at Tenant’s sole cost and expense. Tenant’s Agents shall maintain all of the foregoing insurance coverage in force until all of the Tenant Improvements are fully completed. All insurance, except Worker’s Compensation, maintained by Tenant’s Agents shall preclude subrogation claims by the insurer against Landlord or Tenant. Such insurance shall provide that it is primary insurance as respects Landlord and that any other insurance maintained by Landlord is excess and noncontributing with the insurance required hereunder. The requirements for the foregoing insurance shall not limit Tenant’s indemnification obligations under this Work Letter Agreement.

(c) Compliance With Laws and Other Landlord Requirements. The Tenant Improvements shall comply in all respects with the following: (i) all applicable building codes, laws and regulations; (ii) applicable standards of the American Insurance Association (formerly, the National Board of Fire Underwriters); and (iii) building material manufacturer’s specifications. In addition, Tenant’s Agents shall comply with all of Landlord’s reasonable rules, regulations and procedures concerning the construction of improvements in the Building and access to the Building (collectively, the “Construction Procedures”).

(d) Inspection by Landlord. Landlord shall have the right to inspect the Tenant Improvements at all times, provided however, that Landlord’s inspection of the Tenant Improvements shall not constitute Landlord’s approval of the Tenant Improvements. Should Landlord reasonably disapprove any portion of the Tenant Improvements, Landlord shall notify Tenant in writing of such reasonable disapproval and shall specify the items disapproved. Any defects in the Tenant Improvements shall be rectified by Tenant at no expense to Landlord. Landlord shall have the right to receive a fee to reimburse it for its costs in providing approvals hereunder and in monitoring the construction of the Tenant Improvements in an amount of Twelve Thousand Five Hundred Dollars ($12,500.00) (the “Landlord Fee”). Landlord shall deduct the Landlord Fee from the Improvement Allowance.

(e) Notice of Non-Responsibility. Not less than ten (10) days prior to the date Tenant intends to first commence construction of the Tenant Improvements, Tenant shall provide Landlord with written notice of its intention to commence construction. Landlord shall have the right from time to time to post notices of non-responsibility at the Premises.

4.3 Notice of Completion; Copy of Record Set of Plans. Within ten (10) days after completion of construction of the Tenant Improvements, and as a condition to Landlord’s final reimbursement of the Tenant Improvement Allowance, Tenant shall cause a Notice of Completion to be recorded in the office of the Recorder of Santa Clara County in accordance with Section 3093 of the Civil Code of the State of California or any successor statute, and shall furnish a copy thereof to Landlord upon such recordation. If Tenant fails to do so, Landlord may execute and file the same on behalf of Tenant as Tenant’s agent for such purpose, at Tenant’s sole cost and expense. At the conclusion of construction, and as a condition to Landlord’s final reimbursement of the Tenant Improvement Allowance, (a) Tenant shall cause the Architect and Contractor (i) to update the Final Construction Drawings as necessary to reflect all changes made to the Final Construction Drawings during the course of construction, (ii) to certify to the best of their knowledge that the “record-set” of as-built drawings are true and correct and (iii) to deliver to Landlord two (2) sets of copies of such record set of drawings, and (b) Tenant shall deliver to Landlord a copy of all warranties, guaranties, and operating manuals and information relating to the improvements, equipment, and systems in the Premises.

5. Completion. Tenant hereby covenants and agrees to cause the Tenant Improvements to be completed as soon as reasonably possible following the Commencement Date. Subject to the performance by Landlord of its obligations with respect to the funding of the Tenant Improvement Allowance. Tenant agrees to cause the Tenant Improvements to be paid for, at Tenant’s sole cost and expense. Tenant shall be primarily obligated to complete the construction of the Tenant Improvements, and the failure of Tenant’s Agents to perform their obligations with respect to the construction of the Tenant Improvements shall not relieve Tenant of its obligation to complete the construction of the Tenant Improvements. Tenant acknowledges and agrees that its obligation to pay Base Rent and other amounts due under the Lease as of the Commencement Date is not conditioned on Tenant’s completion of the Tenant Improvements prior to the Commencement Date or at any other time.

6. Miscellaneous.

6.1 Tenant’s Representative. Tenant has designated Rick Foreman, VP of Finance and Administration as its sole representative with respect to the matters set forth in this Work Letter Agreement, and, until further notice to Landlord, Tenant’s representative shall have full authority and responsibility to act on behalf of the Tenant as required in this Work Letter Agreement.

6.2 Landlord’s Representative. Landlord has designated Kevin Morris as its sole representative with respect to the matters set forth in this Work Letter Agreement, and until further notice to Tenant, Landlord’s representative shall have full authority and responsibility to act on behalf of the Landlord as required in this Work Letter Agreement.

6.3 Time of the Essence. Unless otherwise indicated, all references herein to a “number of days” shall mean and refer to calendar days. If any item requiring approval is timely disapproved by Landlord, the procedure for preparation of the document and approval thereof shall be repeated until the document is approved by Landlord.

6.4 Tenant’s Default. Notwithstanding any provision to the contrary contained in the Lease, if Tenant commits a default as defined in section 17.1 of the Lease, and fails to cure such default during any applicable cure period, then, in addition to all other rights and remedies granted to Landlord pursuant to the Lease, Landlord shall have the right to withhold payment of all or any portion of the Tenant Improvement Allowance until such default is cured. The failure of Tenant or Landlord to perform any of its obligations under this Work Letter Agreement shall constitute a default under the Lease, subject to the applicable cure periods set forth therein.

Exhibit 1 to Work Letter Agreement

(Space Plan)

Exhibit F

Addendum to Standard Industrial Lease (the “Lease”)

dated the          day of April, 2005 Between

The Realty Associates Fund III, L.P. (“Landlord”) and

Ion America Corporation (“Tenant”)

It is hereby agreed by Landlord and Tenant that the provisions of this Addendum are a part of the Lease. If there is a conflict between the terms and conditions of this Addendum and the terms and conditions of the Lease, the terms and conditions of this Addendum shall control. Capitalized terms in this Addendum shall have the same meaning as capitalized terms in the Lease, and, if a Work Letter Agreement is attached to this Lease, as those terms have been defined in the Work Letter Agreement.

1. Option to Extend. Landlord hereby grants to Tenant the option to extend the term of the Lease for one (1) five (5)-year period (the “Extension Option”) commencing when the initial lease term expires upon each and all of the following terms and conditions:

(a) On a date which is prior to the date that the option period would commence (if exercised) by at least one hundred eighty (180) days and not more than two hundred seventy (270) days, Landlord shall have received from Tenant a written notice of the exercise of the option to extend the Lease for said additional term (an “Exercise Notice”), time being of the essence. If the Exercise Notice is not so given and received, the Extension Option shall automatically expire, Tenant shall no longer have the right to give an Extension Notice and this section shall be of no further force or effect. Tenant shall give the Exercise Notice using certified mail return receipt requested or some other method where the person delivering the package containing the Exercise Notice obtains a signature of the person accepting the package containing the Exercise Notice (e.g., by FedEx with the requirement that the FedEx delivery person obtain a signature from the person accepting the package).

(b) All of the terms and conditions of the Lease except where specifically modified by this section shall apply.

(c) The monthly Base Rent payable during the option term shall be the Market Rate on the date the option term commences.

(d) The term “Market Rate” shall mean the annual amount per rentable square foot that a willing, comparable renewal tenant would pay and a willing, comparable landlord of a similar building would accept at arm’s length for similar space, giving appropriate consideration to the following matters: (i) annual rental rates per rentable square foot; (ii) the type of escalation clauses; (iii) rent abatement provisions reflecting free rent and/or no rent during the lease term; (iv) length of lease term; (v) size and location of premises being leased; and (vi) other generally applicable terms and conditions of tenancy for similar space; provided, however, Tenant shall not be entitled to any tenant improvement or refurbishment allowance. Tenant shall not be entitled to any tenant improvement or refurbishment allowance, but such fact shall be taken into account in reducing the effective rent payable by Tenant if such allowances are otherwise available in the market. In addition, in determining the Market Rate, the existence of any specialized improvements paid for by Tenant, (including, without limitation, clean rooms) shall not be taken into consideration. The Market Rate may also designate periodic rental increases, a new Base Year and similar economic adjustments.

(e) If Tenant exercises the Extension Option, Landlord shall determine the Market Rate by using its good faith judgment. Landlord shall provide Tenant with written notice of such amount on or before the date that is ninety (90) days prior to the date that the term of the Extension Option will commence. Tenant shall have fifteen (15) days (“Tenant’s Review Period”) after receipt of Landlord’s notice of the new rental within which to accept such rental. In the event Tenant fails to accept in writing such rental proposal by Landlord, then such proposal shall be deemed rejected, and Landlord and Tenant shall attempt to agree upon such Market Rate, using their best good faith efforts. If Landlord and Tenant fail to reach agreement within fifteen (15) days following Tenant’s Review Period (“Outside Agreement Date”), then each party shall place in a separate sealed envelope their final proposal as to the Market Rate, and such determination shall be submitted to arbitration in accordance with subsections (i) through (v) below.

(i) Landlord and Tenant shall meet with each other within five (5) business days after the Outside Agreement Date and exchange their sealed envelopes and then open such envelopes in each other’s presence. If Landlord and Tenant do not mutually agree upon the Market Rate within one (1) business day of the exchange and opening of envelopes, then, within ten (10) business days of the exchange and opening of envelopes. Landlord and Tenant shall agree upon and jointly appoint a single arbitrator who shall by profession be a real estate broker or agent who shall have been active over the five (5) year period ending on the date of such appointment in the leasing of buildings similar to the Premises in the geographical area of the Premises. Neither Landlord nor Tenant shall consult with such broker or agent as to his or her opinion as to the Market Rate prior to the appointment. The determination of the arbitrator shall be limited solely to the issue of whether Landlord’s or Tenant’s submitted Market Rate for the Premises is the closest to the actual Market Rate for the Premises as determined by the arbitrator, taking into account the requirements for determining Market Rate set forth herein. Such arbitrator may hold such hearings and require such briefs as the arbitrator, in his or her sole discretion, determines is necessary. In addition, Landlord or Tenant may submit to the arbitrator with a copy to the other party within five (5) business days after the appointment of the arbitrator any market data and additional information such party deems relevant to the determination of the Market Rate (“MR Data”), and the other party may submit a reply in writing within five (5) business days after receipt of such MR Data.

(ii) The arbitrator shall, within thirty (30) days of his or her appointment, reach a decision as to whether the parties shall use Landlord’s or Tenant’s submitted Market Rate and shall notify Landlord and Tenant of such determination.

(iii) The decision of the arbitrator shall be final and binding upon Landlord and Tenant.

(iv) If Landlord and Tenant fail to agree upon and appoint an arbitrator, then the appointment of the arbitrator shall be made by the presiding judge of the Superior Court for the county in which the Premises is located, or, if he or she refuses to act, by any judge having jurisdiction over the parties.

(v) The cost of the arbitration shall be paid by Landlord and Tenant equally.

2. Access to Premises. Subject to the other terms and conditions of the Lease, Landlord shall use reasonable efforts to provide Tenant with access to the Premises twenty-four (24) hours a day, three hundred sixty-five (365) days per year. Notwithstanding the foregoing, Tenant acknowledges and agrees that repairs, hazardous conditions and circumstances beyond Landlord’s control may prevent access to the Premises from time to time.

3. Building Signage. Subject to the following terms and conditions, Landlord shall permit Tenant to install, at Tenant’s sole cost and expense, a building sign (the “Building Sign”) containing Tenant’s name above the entrance to the Building:

(a) The size, location, design and color of the Building Sign shall be approved by Landlord prior to the installation of the Building Sign, and Landlord shall not unreasonably withhold, condition or delay such approval;

(b) The cost of designing, fabricating, installing and obtaining governmental approvals for the Building Sign shall be paid by Tenant, at Tenant’s sole cost and expense. The contractor performing such work shall comply with all of Landlord’s policies and procedures relating to construction performed at the Building (e.g., insurance, safety etc.);

(c) Tenant shall maintain the Building Sign in good order and repair, at Tenant’s sole cost and expense;

(d) Tenant’s right to install the Building Sign is subject to the issuance by the City of Sunnyvale (the “City”) of any required approvals and permits for the installation of the Building Sign, and Landlord shall cooperate with Tenant in obtaining such approvals, at no material cost or expense to Landlord. Landlord makes no representation or warranty that the City will permit the installation of the Building Sign, and Tenant’s obligations under this Lease are not conditioned upon the City permitting the installation of the Building Sign or any other sign;

(e) Any modification of the Building Sign shall be considered to be an “Alteration” within the meaning of section 13.1 of the Lease, and shall be governed by the provisions thereof;

(f) Tenant shall remove the Building Sign and repair any damage to the Building, at Tenant’s sole cost and expense, upon the termination or expiration of the Lease term;

(g) Subject to Landlord’s right to place signs on the exterior of the Building to comply with applicable laws, Tenant shall have the exclusive right to place exterior building signage on the Building; and

(h) If Tenant assigns the Lease or subleases the entire Premises, Landlord shall not unreasonably withhold its consent to the modification of the Building Sign to state the name of the person or entity to whom the Lease is assigned or to whom the Premises is subleased provided that the assignee or subtenant obtains from the City all required approvals and permits.

4. Monument Sign. Tenant shall have the non-exclusive right to place its name in the top position on the monument sign located on the corner of Orleans Drive and Moffett Park Drive (the “Monument Sign”). Landlord shall have the right to approve the size, design, location and color of Tenant’s name on the Monument Sign, in Landlord’s reasonable discretion. Tenant shall maintain its name in good condition. The Monument Sign will include spaces for the names of multiple tenants, and Tenant acknowledges that Landlord may elect to add additional names to the Monument Sign. If Tenant assigns the Lease or subleases the entire Premises, Landlord shall not unreasonably withhold its consent to the modification of the Monument Sign to state the name of the person or entity to whom the Lease is assigned or to whom the Premises is subleased provided that the assignee or subtenant obtains from the City all required approvals and permits.

5. Letter of Credit.

(a) Delivery of Letter of Credit. Within thirty (30) days after Landlord’s and Tenant’s execution and delivery of this Lease, Tenant covenants and agrees to deliver to Landlord an irrevocable standby letter of credit (the “L/C”) in the form of, and upon all of the terms and conditions contained in, Exhibit “A” attached hereto and incorporated herein by reference. The L/C shall be issued by an institutional lender of good financial standing (which lender shall, in any event, have assets equal to or exceeding $500,000,000 as of the date of issuance of the L/C), having a place of business where the L/C can be presented for payment in San Francisco, California. The lender shall be subject to Landlord’s prior written approval, not to be unreasonably withheld or delayed. The L/C shall provide for one (1) or more draws by Landlord or its transferee up to the aggregate amount of US $45,000 (the “L/C Amount”) on the terms and conditions of Exhibit “1”.

(b) Renewal of L/C. Tenant shall maintain the L/C in effect from the date of Tenant’s execution of this Lease until the date which is thirty (30) days after Tenant shall have performed all of its obligations under the Lease (said period is hereinafter referred to as the “L/C Term”). If the expiration date of the L/C (or any renewal or replacement L/C provided pursuant to this Addendum section) occurs prior to the end of the L/C Term, then Tenant shall deliver to Landlord a renewal of the L/C or a replacement L/C meeting all of the terms and conditions of this Addendum section, not later than sixty (60) days prior to the then-applicable expiration date. Each L/C provided pursuant to this Addendum section shall have an expiration date which is at least one (1) year from such L/C’s date of issue except where the then-applicable expiration date of the L/C is less than one (1) year from the end of the L/C Term, in which case the renewal or replacement L/C shall be for such lesser period. The issuing bank’s agreement to place an automatic renewal provision in the L/C, as required pursuant to said Exhibit “1”, shall not relieve or release Tenant from its obligation to provide a renewal or replacement L/C on the terms hereinabove stated, it being understood that any such automatic renewal is an independent obligation of the issuing bank which is intended for Landlord’s sole benefit. If Tenant fails to provide the renewal or replacement L/C not later than thirty (30) days prior to the then-applicable, stated expiration date (excluding automatic renewal provisions), such failure shall be a default by Tenant, and Landlord shall have the right, without notice or demand, on one or more occasions, to draw upon all or any part of the remaining proceeds of the L/C.

(c) Draw on Letter of Credit. Landlord may elect from time to time, in Landlord’s sole discretion, without notice or demand to Tenant, to draw upon all or any part of the remaining proceeds of the L/C upon the occurrence of one or more of the following events: (i) Tenant fails to perform any of its obligations under the Lease (including, but not limited to, its obligations under this Addendum section) or (ii) Tenant makes any assignment for the benefit of creditors. Tenant declares bankruptcy or is the subject of an involuntary bankruptcy proceeding, a trustee or receiver is appointed to take possession of some or all of Tenant’s assets or, in Landlord’s reasonable judgment, Tenant is insolvent. Any draw on the letter of credit by Landlord shall be accompanied by a signed certification of Landlord that one of the conditions of this subsection (c) has occurred, and Landlord is entitled to draw on the L/C.

(d) Application of L/C Proceeds. Landlord may elect, from time to time, upon written notice to Tenant, in Landlord’s sole discretion, to apply the proceeds it receives from a draw on the L/C in one or more of the following manners: (i) as payment for some or all of the Base Rent, Operating Expenses, Real Property Taxes or other amounts owed by Tenant under the Lease but unpaid on the date of such draw, (ii) as payment for some or all of the future amounts of Base Rent, Operating Expenses, Real Property Taxes or other amounts that Landlord estimates will be due and payable under the Lease after the date of the draw, (iii) as payment for some or all of the damage Landlord has suffered as a result of Tenant’s failure to perform its obligations under the Lease, and (iv) in any other manner permitted by the Lease or applicable law. Landlord may make one or more partial draws under the L/C and shall have the right, upon written notice to Tenant, to treat each draw or a portion thereof in one or more of the ways described in the previous sentence. Tenant hereby waives section 1950.7 of the California Civil Code and any other law or regulation that may be inconsistent with the terms and conditions of this Addendum section.

(e) Enforcement. Tenant’s obligation to furnish the L/C shall not be released, modified or affected by any failure or delay on the part of Landlord to enforce or assert any of its rights or remedies under the Lease or this Addendum section, whether pursuant to the terms thereof or at law or in equity. Landlord’s right to draw upon the L/C shall be without prejudice or limitation to Landlord’s right to draw upon any security deposit provided by Tenant to Landlord or to avail itself of any other rights or remedies available to Landlord under the Lease or at law or equity.

(f) Event of Default. Tenant’s failure to perform its obligations under this Addendum section (time being of the essence) shall constitute an event of default under the Lease, and shall entitle Landlord to immediately exercise all of its rights and remedies under the Lease (including, but not limited to rights and remedies under this Addendum section) or at law or in equity without notice or demand to Tenant.

(g) Conflict. If there is any conflict between the terms and conditions of this Addendum section and the terms and conditions of the Lease, the terms of this Addendum section shall control.

6. Personal Property. Certain personal property is presently located in the Building (e.g. chairs, tables, cubicles, cabinets, telephone system, security system, data wiring etc.) (collectively, the “Personal Property”). A previous tenant of the Premises conveyed to Landlord title to the Personal Property. Landlord hereby conveys to Tenant, effective upon full execution of this Lease, title to the Personal Property in consideration of this Lease and for a purchase price of One Dollar ($1.00) receipt of which is hereby acknowledged. Landlord represents and warrants to Tenant that Landlord possesses title to the Personal Property free and clear of any liens or encumbrances. Tenant hereby accepts the Personal Property in its “as is” condition. Except as set forth above in this section 6, Landlord does hereby disclaim any representations or warranties of any kind or nature whatsoever, whether oral or written, express, implied, statutory or otherwise, relating to the Personal Property, including, without limitation, any covenant, representation or warranty regarding or relating to (a) the operation of the Personal Property or the merchantability or fitness of any portion of the Personal Property for a particular purpose; or (b) the physical condition of the Personal Property. By its execution of the Lease, Tenant hereby waives and releases, any implied or statutory warranties or guaranties of fitness, merchantability or any other statutory or implied warranty or guaranty of any kind or nature regarding or relating to the Personal Property. Tenant shall be responsible for any sales tax due with respect to the conveyance of the Personal Property to Tenant. At Tenant’s request. Landlord agrees to acknowledge the sale of the Personal Property by executing a bill of sale, in form acceptable to Landlord, attaching an inventory of the Personal Property prepared by Tenant at Tenant’s sole cost and expense.

7. Right of Offer.

(a) At any time between the Commencement Date and the last day of the initial term of this Lease (but not during the term of the Extension Option), Tenant shall have the right of offer to lease any vacant space in the building located at 1306 and 1310 Orleans Drive, Sunnyvale, California that Landlord desires to Lease (the “Additional Premises”). Prior to leasing all or part of the Additional Premises, Landlord shall give Tenant written notice of its intent to lease all or part of the Additional Premises (a “Landlord Notice”). Tenant shall have ten (10) days after Landlord has given written notice in which to provide Landlord with written notice of its election to exercise its right to lease all of the Additional Premises Landlord desires to Lease (Tenant shall not have the right to elect to lease part of the Additional Premises Landlord desires to Lease). Tenant shall pay Base Rent for the Additional Premises at the “Market Rate” (as defined below). All of the other terms and conditions pertaining to the lease of the Additional Premises shall be mutually agreed by Landlord and Tenant within ten (10) days after Landlord receives Tenant’s written notice, time being of the essence. If Landlord and Tenant are unable to agree on such terms and conditions within the ten (10) day period. Tenant’s right to lease the Additional Premises shall automatically expire and Tenant shall have no further right to lease the Additional Premises. Except for the Market Rate which will be determined as provided in (b) below, all of the terms and conditions for the lease of the Additional Premises shall be satisfactory to Landlord and Tenant, in each of their sole and absolute discretion’s. If Tenant does not give Landlord written notice of its election to lease such Additional Premises within ten (10) days after Landlord gives Tenant its written notice of the availability of the Additional Premises, time being of the essence, Landlord shall thereafter be free to lease such Additional Premises to a third party on any terms and conditions that Landlord shall select, with no further obligation to Tenant unless and until Landlord has leased such Additional Premises to a third party, and after such third party occupies such Additional Premises, it once again becomes available for lease. After Landlord has leased the Additional Premises and it has once again become available to lease, this Addendum section shall once again apply to the lease of such Additional Premises. Landlord shall not be obligated to provide Tenant with notice pursuant to this Addendum section, and Tenant shall not have the right to exercise the right of offer granted in this Addendum section, at any time that Tenant has subleased all or any portion of the Premises or at any time Tenant is in default as defined in the Lease. Tenant’s right of offer in this Addendum section shall be of no force or effect during the term of the Extension Option.

(b) The term “Market Rate” shall mean the annual amount per rentable square foot that a willing, comparable tenant would pay and a willing, comparable landlord of a similar building would accept and the amount of tenant improvement allowance that such landlord would pay and such tenant would accept at arm’s length for similar space, giving appropriate consideration to the following matters: (i) annual rental rates per rentable square foot; (ii) the type of escalation clauses (including, but without limitation, operating expense, real estate taxes, and CPI) and the extent of liability under the escalation clauses; (iii) rent abatement provisions reflecting free rent and/or no rent during the lease term; (iv) length of lease term; (v) size and location of premises being leased; (vi) the amount of any tenant improvement allowance; and (vii) other generally applicable terms and conditions of tenancy for similar space. If Tenant exercises its right to lease the Additional Premises, Landlord shall determine the Market Rate by using its good faith judgment. Landlord shall provide Tenant with written notice of such amount within ten (10) days after Tenant gives a Landlord Notice. Tenant shall have five (5) days (“Tenant’s Review Period”) after receipt of Landlord’s notice of the new rental within which to accept such rental. In the event Tenant fails to accept in writing such rental proposal by Landlord , then such proposal shall be deemed rejected, and Landlord and Tenant shall attempt to agree upon such Market Rate, using their best good faith efforts. If Landlord and Tenant fail to reach agreement within five (5) days following Tenant’s Review Period (“Outside Agreement Date”), then each party shall place in a separate sealed envelope their final proposal as to the Market Rate, and such determination shall be submitted to arbitration in accordance with subsections (i) through (v) below.

(i) Landlord and Tenant shall meet with each other within three (3) business days after the Outside Agreement Date and exchange their sealed envelopes and then open such envelopes in each other’s presence. If Landlord and Tenant do not mutually agree upon the Market Rate within one (1) business day of the exchange and opening of envelopes. then, within three (3) business days of the exchange and opening of envelopes, Landlord and Tenant shall agree upon and jointly appoint a single arbitrator who shall by profession be a real estate broker or agent who shall have been active over the five (5) year period ending on the date of such appointment in the leasing of commercial buildings similar to the Premises in the geographical area of the Premises. Neither Landlord nor Tenant shall consult with such broker or agent as to his or her opinion as to the Market Rata prior to the appointment. The determination of the arbitrator shall be limited solely to the issue of whether Landlord’s or Tenant’s submitted Market Rate for the Premises is the closest to the actual Market Rate for the Premises as determined by the arbitrator, taking into account the requirements for determining

Market Rate set forth herein. In addition, Landlord or Tenant may submit to the arbitrator with a copy to the other party within three (3) business days after the appointment of the arbitrator any market data and additional information such party deems relevant to the determination of the Market Rate (“RR Data”), and the other party may submit a reply in writing within two (2) business days after receipt of such RR Data.

(ii) The arbitrator shall, within six (6) business days of his or her appointment, reach a decision as to whether the parties shall use Landlord’s or Tenant’s submitted Market Rate and shall notify Landlord and Tenant of such determination.

(iii) The decision of the arbitrator shall be final and binding upon Landlord and Tenant.

(iv) If Landlord and Tenant fail to agree upon and appoint an arbitrator, then the appointment of the arbitrator shall be made by the presiding judge of the Superior Court for the County in which the Premises is located, or, if he or she refuses to act, by any judge having jurisdiction over the parties.

(v) The cost of the arbitration shall be paid by Landlord and Tenant equally.

(c) Landlord shall have no obligation to agree to a coterminous term for the lease of the Additional Premises and Premises. Except for the Market Rate which shall be decided in accordance with (b) above, all of the terms and conditions of Tenant’s lease of the Additional Premises shall be satisfactory to Landlord and Tenant in each of their sole and absolute discretion’s. The consequence of Landlord and Tenant not being able to agree on the terms and conditions of the lease of the Additional Premises shall be that Landlord shall have no further obligation to lease the Additional Premises to Tenant and Tenant shall have no further obligation to lease the Additional Premises from Landlord pursuant to this Addendum section.

(d) Sale of Right of Refusal Buildings. Landlord shall have the right to sell the building located at 1306 and 1310 Orleans Drive, Sunnyvale, California (the “1306 and 1310 Building”) at any time. If Landlord sells the 1306 and 1310 Building, this Addendum section shall be of no further force or effect and Tenant shall have no further right to lease space in the 1306 and 1310 Building.

8. Generator. Tenant shall have the right to install an electrical generator, with an associated above ground fuel storage tank (the “Generator Unit”) and an electrical line from the Generator to the Premises (the “Line”). The Generator Unit, the Line and any other improvements constructed in association with the Generator Unit and the Line are hereinafter collectively referred to as the “Generator”. The size and capacity of the Generator and all improvements constructed in association with the installation of the Generator shall be subject to Landlord’s prior written approval, which shall not be unreasonably withheld or delayed. The Generator shall be installed at a location approved by Landlord, in Landlord’s reasonable discretion. Tenant shall have no right to after the location of the Generator or to modify the Generator without the prior written consent of Landlord, which shall not be unreasonably withheld or delayed by Landlord; provided, however, Tenant shall have the right to perform routine maintenance and repairs and testing without the consent of Landlord. Tenant shall be entitled to use the Generator for the sole purpose of providing electrical power to the Premises in the event of a power outage. Tenant shall be solely responsible for obtaining all governmental permits and authorizations required for the installation and operation of the Generator, and Landlord makes no representation or warranty to Tenant that it will be able to obtain such permits or authorizations. The installation of the Generator by Tenant shall be subject to Landlord’s customary construction requirements and Tenant shall repair any asphalt or concrete damage created by the installation of the Generator to the reasonable satisfaction of Landlord. If it is customary to obtain special insurance for the Generator, Landlord shall have the right to require Tenant to obtain such special insurance at Tenant’s sole expense and Tenant shall name Landlord as an additional insured on such insurance policy. Tenant shall maintain the Generator in good condition and repair and in compliance with all laws and regulations, at Tenant’s sole cost and expense. The Generator shall not create noise levels in excess of fifty (50) decibels at any location that is more than ten (10) feet from the Generator (the “Maximum Noise Level”). Tenant acknowledges and agrees that Tenant shall pay, at Tenant’s sole cost and expense, the cost of all natural gas or other fuel used at the Generator. If at any time Tenant stops using the Generator, Tenant shall promptly remove the Generator and return the real property the Generator is located on in the same condition it was in prior to Tenant’s installation of the Generator. When the Lease terminates, Tenant shall remove the Generator from the Premises and shall return the real property the Generator is located on to Landlord in the same condition it was in prior to Tenant’s installation of the Generator.

9. Equipment on Roof. Landlord hereby approves the installation of Tenant’s HVAC, telecommunications and satellite equipment in a mutually acceptable location on the roof of the Building. Prior to installation, Landlord shall consent to the location of such equipment; such consent not to be unreasonably withheld or delayed. Concurrently with Tenant’s request for Landlord’s approval, Tenant shall (a) provide to Landlord plans prepared by and stamped by a licensed structural engineer showing the location of the equipment on the roof and how it will be installed so as to not compromise the structural integrity of or damage the roof of the Building and (b) provide Landlord with elevations and specifications for the equipment. Tenant shall follow the reasonable recommendations of Landlord’s roofing consultant in connection with the installation of all equipment on the roof. Tenant shall be responsible for the repair and maintenance of all equipment it installs on the roof, at Tenant’s sole cost and expense. In addition, Tenant shall repair any damages to the Premises caused by its installation, use and repair of the equipment it installs on the roof, at Tenant’s sole expense. Tenant shall have unrestricted roof access to inspect and service its equipment on the roof. The right to the use of the roof of the Building shall be exclusive to Tenant and any and all Affiliates of Tenant that occupies all or part of the Premises; provided, however, that Landlord shall have access to the roof to perform its obligations under the Lease. Prior to installing any equipment on the roof, Tenant shall obtain all required governmental permits and shall comply with the other terms and conditions of this Lease applicable to Alterations to the Premises. If the repair or replacement of the roof requires the temporary removal of Tenant’s equipment, Tenant shall temporarily remove its equipment, at Tenant’s sole cost and expense.

[Signatures continued on next page]

IN WITNESS WHEREOF, the parties hereto have respectively executed this Addendum.

LANDLORD:

The Realty Associates Fund III, L.P., a Delaware limited partnership

By:	Realty Associates Fund III GP Limited Partnership, a Delaware limited partnership, Its general partner
	By:	Realty Associates Fund III LLC, a Delaware limited liability company, Its sole general partner
		By:	Realty Associates Fund III Trust, a Massachusetts business trust, sole Member
			By:	/s/ Scott W. Amling
				(Officer)    Scott W. Amling                   Regional Director

By:	Realty Associates Fund III Texas Corporation, a Texas corporation, general partner
	By:	/s/ Scott W. Amling
		(Officer)    Scott W. Amling                   Regional Director

TENANT:
Ion America Corporation, a Delaware corporation
By:	/s/ Rick Foreman
	Rick Foreman
	(print name)
Its:	Vice President, Finance & Admin
	(print title)
By:	/s/ KR Sridhar
	KR Sridhar
	(print name)
Its:	President and CEO
	(print title)

Exhibit 1 to Addendum

[NAME OF BANK]

IRREVOCABLE STANDBY LETTER OF CREDIT

Date of Issue:              No.             

APPLICANT: BENEFICIARY:

AMOUNT:         $                

At the request and for the account of                                 , (the “Account Party”), we hereby establish in your favor our Irrevocable Letter of Credit no.              in the amount of                              ($            ).

This Letter of Credit is issued with respect to that certain lease agreement, by and between you, as Landlord, and the Account Party, as Tenant. Said lease agreement, and any amendments or modifications thereof, is hereinafter referred to as the “Lease.” Our obligations under this Letter of Credit are solely as set forth herein and are completely independent of the obligations of the Account Party under the Lease. We do not undertake any obligation under the Lease, nor do we undertake any responsibility to ascertain any facts, or to take any other action, with respect to the Lease, and we acknowledge that our obligations under this Letter of Credit shall not be affected by any circumstance, claim or defense of any party as to the enforceability of the Lease or any dispute as to the accuracy of the Statement (as defined below). The references to the Lease in this Letter of Credit are solely to describe the required contents of the Statement.

Funds under this Letter of Credit are available to you against presentation of the following documents at our office at                                                                                                                                                                     prior to close of business on the expiration date set forth below.

1. The original of this Letter of Credit.

2. Your sight draft on us in an amount not exceeding the amount of this Letter of Credit (less sums previously paid by us hereunder) executed by the person executing the Statement and bearing the number of this Letter of Credit; and

3. A statement (the “Statement”) executed by a natural person, (a) stating that such person is your duly authorized representative and (b) requesting a draw under this Letter of Credit. [Note: This section to be formatted consistent with Section 5(c) of Exhibit F [Addendum] to the Lease]

Facsimile demands are permitted by the delivery to us of facsimile copies of the documents described in 1 through 3 above. Facsimile demands shall be sent to us at the following facsimile number                         . If a demand is made by facsimile, the original letter of credit is not required.

The expiration date of this Letter of Credit is                         , provided, however, that the expiration date of this Letter of Credit shall be automatically extended, without notice of amendment, for successive one (1) year periods, unless we give you written notice of our election not to extend the expiration date (“Notice of Non-Renewal”) not later than sixty (60) days prior to the date this Letter of Credit is scheduled to expire. A Notice of Non-Renewal shall be effective when actually delivered by certified mail, return receipt requested, or courier service to your address set forth above or such other address and/or person as you shall specify to us for such purpose by written notice received by us prior to the time the Notice of Non-Renewal is sent.

This Letter of Credit is transferable in its entirety through us. Multiple transfers shall be permitted. There will be no charge to Beneficiary or any transferee for the transfer of this Letter of Credit. We will honor complying drafts presented hereunder by a transferee (and cease to honor drafts presented hereunder by you) upon our receipt of the fully executed transfer form attached hereto as Exhibit 1. We will not reduce or curtail any terms or conditions of this Letter of Credit upon a transfer. Transfers of this Letter of Credit shall be on the terms of this Letter of Credit as the same may be amendment.

This Letter of Credit may be drawn upon in one or more drafts not exceeding in the aggregate, the amount available hereunder. Partial draws shall be permitted.

We hereby issue this Letter of Credit in your favor, and we hereby undertake to honor all drafts drawn under and in compliance with the terms of this Letter of Credit.

This Letter of Credit shall be governed by and construed in accordance with the Uniform Customs and Practices for Documentary Credits (          Revision) International Chamber of Commerce Publication 590 and, to the extent not inconsistent therewith, the laws of the State of                     .

Authorized Signature

EXHIBIT 1 to Letter of Credit

[TRANSFER FORM – to be provided by Bank]

Client#: 71591 IONAMER ACORDTM CERTIFICATE OF LIABILITY INSURANCE PRODUCER Technology (650) 839-6000 ABD Insurance & Financial Services 305 Walnut Street Redwood City, CA 94063 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. INSURERS AFFORDING COVERAGE NAIC# INSURED Ion America NASA Research Park, Bldg. 543 PO Box 97 Moffett Field, CA 94035 insurer a: Hartford Fire Insurance insurer b: Marketing Company insurer c: Granite State Insurance Company insurer d: insurer e: COVERAGES POLICY NUMBER policy effective DATE [MM/DD/YY] LIMITS POLICY EXPIRATION DATE (MM/DD/YY) 06/30/05 THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS. EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS LTR INSRD 57UENTL6315 06/30/04 EACH OCCURRENCE $1,000,000 TYPE OF INSURANCE DAMAGE TO RENTED PREMISES (Ea occurrence) $300.000 GENERAL LIABILITY med exp (Any one person) $10.000 COMMERCIAL GENERAL LIABILITY J CLAIMS MADE occur PERSONAL & ADV INJURY $1,000,000 GENERAL AGGREGATE $2,000,000 GEN’L AGGREGATE LIMIT APPLIES PER: POLICY PROJECT LOC PRODUCTS - COMP/OP agg $ Excluded EA ACC AGG AUTOMOBILE LIABILITY ANY AUTO ALL OWNED AUTOS SCHEDULED AUTOS HIRED AUTOS NON-OWNED AUTOS garage liability any AUTO COMBINED SINGLE LIMIT (Ea accident) BODILY INJURY (Per person) BODILY INJURY (Per accident) property damage (Per accident) AUTO ONLY - EA ACCIDENT OTHER THAN AUTO ONLY: $ $ $ $ $ $ $ EXCESS/UMBRELLA LABILITY OCCUR CLAIMS MADE 57XHUTM4167 04/15/05 04/15/06 EACH OCCURRENCE AGGREGATE $1,000,000 $1,000,000 $1,000,000 $1,000,000 $1,000,000 I deductible retention WORKERS COMPENSATION AND EMPLOYERS’ LIABILITY ANY PROPRIETOR/PARTNER/EXECUTIVE OFFICER/MEMBER EXCLUDED? If yes, describe under SPECIAL PROVISIONS below other Business Personal Property Business Income WC5400392 57UUMUL6558 07/10/04 06/28/04 07/10/05 06/28/05 $ other $ $ wc statuTORY LMITS E.L. EACH ACCIDENT E.L. DISEASE - EA EMPLOYEE E.L. DISEASE - POLICY LIMIT $1,785,000 lim/$1k ded Special Form, R/C $315,000 limit DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES / EXCLUSIONS ADDED BY ENDORSEMENT / SPECIAL PROVISIONS Re: 1252 Orleans Drive, Sunnyvale, CA. The realty Associates Fund III, L.P. is included as Additional Insured-Landlord for General Liability as respects above referenced leased location. (See Attached Descriptions) CERTIFICATE HOLDER CANCELLATION Ten Day Notice for Non-Payment of Premium The Realty Associates Fund II, c/o TA Associates Realty Attn: Asset Manager/Orleans 1301 Dove Street, Suite 860 Newport Beach, CA 92660 L.P. SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, THE ISSUING INSURER WILL ENDEAVOR TO MAIL 30 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, BUT FAILURE TO DO SO SHALL IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE INSURER, ITS AGENTS OR REPRESENTATIVES. AUTHORIZED REPRESENTATIVE ACORD 25 (2001/08) 1 of 3 #S666790/M666786 IONAMER J2P © ACORD CORPORATION 1988

IMPORTANT

If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s).

If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s).

DISCLAIMER

The Certificate of Insurance on the reverse side of this form does not constitute a contract between the issuing insurer(s), authorized representative or producer, and the certificate holder, nor does it affirmatively or negatively amend, extend or alter the coverage afforded by the policies listed thereon.

ACORD 25-S (2001/08)    2 of 3 #S666790/M666786

DESCRIPTIONS (Continued from Page 1)

This insurance is primary except when the Excess Insurance provision applies. If this insurance is primary, our obligations are not affected unless any of the other insurance is also primary. Then, we will share with all that other insurance by the method described in the Method of Sharing provision.

AMS 25.3 (2001/08)    3 of 3 #S666790/M666786

FIRST AMENDMENT TO LEASE

This First Amendment to Lease (the “First Amendment”) is entered into as of this 22^nd day of April, 2005 by and between The Realty Associates Fund III, L.P., a Delaware limited partnership (“Landlord”), and Ion America Corporation, a Delaware corporation (“Tenant”), with reference to the following recitals.

RECITALS:

A. Landlord and Tenant have entered into a Standard Industrial Lease (the “Lease”) for that certain premises commonly known 1252 Orleans Drive, Sunnyvale, California.

B. Landlord and Tenant wish to amend the Lease on the terms and conditions set forth below.

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:

1. Ownership of FF&E. Section 2.2(b)(ii) of the Work Letter Agreement attached to the Lease as Exhibit E is hereby amended by adding the following to the end of Section 2.2(b)(ii):

“Notwithstanding anything to the contrary in the Lease and this Work Letter Agreement, the following items purchased by Tenant (whether or not purchased with funds from the Tenant Improvement Allowance pursuant to the terms of this Work Letter Agreement) shall be and remain the property of Tenant during the term of this Lease and after, and Tenant shall have the right to remove such items from the Premises at any time during the term of this Lease: (i) the FF&E purchased by Tenant pursuant to this section 2.2(b)(ii), (ii) the Generator acquired pursuant to paragraph 8 of Exhibit F of the Lease, and (iii) any other furniture, fixtures or equipment used for Tenant’s business and permitted to be acquired under the terms of this Work Letter Agreement with any portion of the Tenant Improvement Allowance (whether under section 2.2(b)(ii) or otherwise).”

2. Conflict. If there is a conflict between the terms and conditions of this First Amendment and the terms and conditions of the Lease, the terms and conditions of this First Amendment shall control. Except as modified by this First Amendment, the terms and conditions of the Lease shall remain in full force and effect. Capitalized terms included in this First Amendment shall have the same meaning as capitalized terms in the Lease unless otherwise defined herein.

3. Authority. The persons executing this First Amendment on behalf of the parties hereto represent and warrant that they have the authority to execute this First Amendment on behalf of said parties and that said parties have authority to enter into this First Amendment.

4. Counterparts. This First Amendment may be executed in counterparts. Each counterpart shall be deemed an original, and all counterparts shall be deemed the same instrument with the same effect as if all parties hereto had signed the same signature page.

IN WITNESS WHEREOF, the parties hereby execute this First Amendment as of the date first written above.

1

LANDLORD

The Realty Associates Fund III, L.P., a Delaware limited partnership
By:	Realty Associates Fund III GP Limited Partnership, a Delaware limited partnership, its general partner
	By:	Realty Associates Fund III LLC, a Delaware limited liability company, its sole general partner
		By:	Realty Associates Fund III Trust, a Massachusetts business trust, sole Member
			By:	/s/ Scott W. Amling
				(Officer)	Scott W. Amling
					Regional Director

By:	Realty Associates Fund III Texas Corporation, a Texas corporation, general partner
	By:	/s/ Scott W. Amling
		(Officer)    Scott W. Amling
		Regional Director

TENANT Ion America Corporation, a Delaware corporation
By:	/s/ Rick Foreman
	Rick Foreman
	(print name)
Its:	Vice President, Finance & Admin
	(print title)
By:	/s/ John Finn
	John Finn
	(print name)
Its:	Vice President, Technology Development
	(print title)

2

SECOND AMENDMENT TO LEASE

This Second Amendment to Lease (the “Amendment”) is dated as of January 12, 2010, for reference purposes only, and is made between OAW Orleans 1252, LLC, a Delaware limited liability company (“Landlord”) as successor to The Realty Associates Fund III, L.P., a Delaware limited partnership and Bloom Energy Corporation, a Delaware corporation (“Tenant”), formerly known as Ion America Corporation, with reference to the following facts and circumstances, which are conclusively agreed between the parties:

A. Landlord and Tenant are parties to a lease dated for reference purposes as of April 5, 2005, as amended by a First Amendment to Lease dated as of April 22, 2005 (referred to herein collectively as the “Lease”), under which Landlord has leased to Tenant improved space comprising approximately 50,000 square feet, located at 1252 Orleans, Sunnyvale, California (the “Premises”). Landlord has succeeded to the interest of The Realty Associates Fund III, L.P., a Delaware limited partnership, and Tenant has attorned to and accepted OAW Orleans 1252, LLC, a Delaware limited liability company as the Landlord and owner of the Property. All capitalized words having an assigned meaning in the Lease shall continue to have such meaning in this Amendment unless explicitly modified.

B. The Lease currently expires on December 31, 2010. Landlord and Tenant wish to extend the Term of the Lease for an additional period of five (5) years, and to make other agreements modifying the Lease terms.

C. Landlord and Tenant have agreed to amend and change the Lease, and wish to document said amendments.

Now, therefore, in consideration of all of the foregoing facts and circumstances, and for good and valuable consideration, the receipt of which is acknowledged by each party, Landlord and Tenant agree to and do amend the Lease as follows:

1. Extension of Lease Term

The Lease Term is hereby extended for an additional five (5) years (the “Extended Term”). The Extended Term shall commence on January 1, 2011 and expire (unless sooner terminated under the provisions of the Lease) on December 31, 2015.

Second Amendment To Lease Page 1

2. Base Rent Modified for Final Year of Existing Term; Base Rent Set for Extended Term.

The Monthly Base Rent for the period from January 1, 2010 through December 31, 2010 as set forth in Section 1.9 of the Lease is amended as follows: The amount set forth in the table below is substituted for and shall be the only binding statement of the Monthly Base Rent for such period. In addition, for the sixty (60) months of the Extended Term, Tenant shall pay Monthly Base Rent during the Extended Term as set forth in the following table.

Start Period		End Period		Per SF		SF Area		Monthly Base Rent
01/01/10	to		12/31/10	$	1.00		50,000		$50,000.00
01/01/11	to		12/31/11	$	1.05		50,000		$52,500.00
01/01/12	to		12/31/12	$	1.15		50,000		$57,500.00
01/01/13	to		12/31/13	$	1.20		50,000		$60,000.00
01/01/14	to		12/31/14	$	1.25		50,000		$62,500.00
01/01/15	to		12/31/15	$	1.30		50,000		$65,000.00

3. Continued Right to Extend Term of Lease Further

Tenant shall continue to have the Option to Extend set forth in Section 1 of Exhibit F, Addendum to Standard Industrial Lease. The extension option shall apply at the close of the Extended Term created hereby.

4. Non-Disturbance Agreement

Within 10 business days of execution of this Amendment, Tenant, Landlord, and Landlord’s lender will execute and deliver to Tenant a Subordination, Non-Disturbance, and Attornment Agreement (“SNDA”) in favor of Tenant on Landlord’s lender’s standard form, as attached hereto as Exhibit “A”

5. Tenant’s Right of First Offer for Additional Space

The Right of Offer set forth in Section 7 of Exhibit F to the Lease shall be replaced by the following provision, and shall be of no further force or effect.

A. Grant and Right of First Offer: Landlord hereby grants Tenant a right of first offer (the “ROFO”) to lease all or any part of the “First Offer Space”, which consists

Second Amendment To Lease Page 2

of the Building located adjacent to the Premises and commonly known as 1306-1310 Orleans Drive, Sunnyvale, CA (“ROFO Property”), which is currently leased by Accuray, Inc., subject to any existing extension or renewal rights of Accuray, Inc., on the terms and provisions contained in this Paragraph. The ROFO Property is owned by OAW Orleans 1310, LLC, a Delaware limited liability company (the “ROFO Property Owner”). Concurrently with execution hereof, Landlord will obtain and provide the written agreement of the ROFO Property Owner to the provisions of this Section 5, to extend so long as the ROFO Property Owner is the owner of the ROFO Property.

B. Effective Period: The ROFO shall be available to Tenant if all or any part of the First Offer Space becomes available for lease at any time during remainder of the existing term of the Lease and the Extended Term (“Effective Period”).

C. Notice and Offer: If Landlord proposes to lease all or part of the First Offer Space at any time during the Effective Period, Landlord shall notify Tenant in writing (the “ROFO Notice”) of the availability of such space. The portion of the First Offer Space which Landlord proposes to lease is referred to herein as the “Offered Space.” Tenant shall have five (5) business days (the “Offer Period”) from the ROFO Notice within which to notify Landlord of its intent to lease the Offered Space.

D. Agreement: Tenant has ten (10) business days from Landlord’s giving the ROFO Notice to reach an agreement with Landlord in regard to the leasing of the Offered Space. If no such agreement is reached in that time, Landlord is free to deal with the Offered Space at its sole discretion thereafter, without further offering to Tenant. Neither Landlord nor Tenant shall be bound to agree to or accept any terms and conditions for such lease except those which each party, in its sole discretion, wishes to agree to. No agreement for the lease of Offered Space shall be binding unless and until a full and formal Lease, prepared and reviewed by Landlord’s counsel, has been executed by both Landlord and Tenant.

E. Non-Assignability; Termination: The right granted to Tenant in this Paragraph is personal to Tenant, and may not be assigned by Tenant to any third party (except for an Affiliate, as defined in Section 16.8 of the Lease), either alone or in conjunction with an assignment of this Lease or a sublease of all or any part of the Premises, and either voluntarily or by operation of law. The rights granted to Tenant under this paragraph shall terminate upon the earliest of the following to occur: (i) the expiration or earlier termination of the Lease; (ii) any assignment by Tenant of its interest in this Lease (except an assignment to an Affiliate); (iii) any subletting by Tenant of substantially all of the Premises for substantially all of the remainder of the Lease Term; (iv) the termination of this ROFO by default as set forth in Subparagraph F below, or (v) as to any Offered Space, when Tenant has had the above granted right to make an offer and either failed to make an offer or Landlord did not accept the offer.

Second Amendment To Lease Page 3

Once Landlord has given a single ROFO Notice on particular Offered Space, Landlord shall have no further duties in regard to that space for the remaining term of the Lease and any extensions.

F. Termination By Default: The rights of Tenant under this Paragraph to notice or negotiation shall not be effective at any time when Tenant is in default under a financial or material provision of this Lease beyond any applicable cure period provided in this Lease.

G. Termination by Sale: Landlord shall have the right to sell the Premises, and the ROFO Property Owner shall have the right to sell the ROFO Property at any time. If the ROFO Property Owner sells or transfers the ROFO Property or Landlord sells or transfers the Premises, the ROFO and other terms and provisions set forth in Section 5.A. to 5.F. shall be of no further force or effect and Tenant shall have no further right of offer to lease space in the ROFO Property. In both above cases, “transfer” includes an involuntary transfer of the Premises. Further, the ROFO shall not bind any receiver who takes possession and control of the Premises or the ROFO Property.

6. Continuing Obligation

Except as expressly set forth in this Amendment, all terms and conditions of the Lease remain in full force and effect, and all terms and conditions of the Lease are incorporated herein as though set forth at length. However, any and all provisions set forth in the Lease pursuant to which the Landlord was to construct any improvements to the Premises or to grant any free rent or rent concessions, are hereby deleted. Tenant agrees to accept the Premises “AS-IS”, with all faults as of the first day of the Extended Term.

7. Effect of Amendment

This Amendment modifies the Lease. In the event of any conflict or discrepancy between the Lease and/or any other previous documents between the parties and the provisions of this Amendment, then the provisions of this Amendment shall control. Except as modified herein, the Lease shall remain in full force and effect.

8. Authority

Each individual executing this Amendment on behalf of Tenant represents and warrants that he or she is duly authorized to and does execute and deliver this Amendment pursuant to express authority from Tenant pursuant to and in accordance with the By-Laws and the other organic documents of the corporation.

Second Amendment To Lease Page 4

9. Brokerage Commissions

Landlord will pay Jones Lang LaSalle a commission on this transaction pursuant to the separate written agreement between Landlord and said broker. Other than this relationship, neither party has been represented by a real estate broker in regard to the transaction represented by this Amendment, and no brokerage commissions or finder’s fees are due in regard to the transaction. Tenant will hold Landlord harmless and indemnify Landlord against any claim, loss, or damage, including reasonable attorney’s fees, in regard to a brokerage commission or finder’s fee claim by a broker or finder under contract with or working with Tenant. Landlord will hold Tenant harmless and indemnify Tenant against any claim, loss, or damage, including reasonable attorney’s fees, in regard to a brokerage commission or finder’s fee claim by a broker or finder under contract with or working with Landlord.

10. Entire Agreement

The Lease, as modified by this Amendment, constitutes and contains the entire agreement between the parties in regard to the real property leased pursuant to the Lease, and there are no binding agreements or representations between the parties except as expressed herein. Tenant and Landlord each acknowledge that neither Landlord nor nor Tenant, nor Landlord’s Agents nor Tenant’s agents have made any legally binding representations or warranties as to any matter except for such matters which are expressly set forth herein, including any representations or warranties relating to the condition of the Premises or the improvements thereto or the suitability of the Premises or the Project for Tenant’s business.

11. Confidentiality

Landlord and Tenant agree that all matters relating to the terms and provisions of the Lease and this Amendment shall be, and will remain, confidential and private between them, and that such matters will not be disclosed except under the following circumstances: To their attorneys or financial advisors in confidence; to their respective accountants and/or tax preparers in confidence as necessary for tax filings; in any public disclosure that may be required in connection with any public stock offering; or in confidence to bona-fide third parties as part of such third parties’ normal due diligence procedures in connection with a potential financing or acquisition transaction. The parties will instruct and require their respective brokers to keep the terms and provisions hereof in confidence.

Second Amendment To Lease Page 5

LANDLORD
OAW Orleans 1252, LLC, a Delaware limited liability company
By:	OAW Orleans, LLC, a Delaware limited liability company
By:	OA Orleans Investor, LLC, a Delaware limited liability company, its Manager
By: Orchard AEW Fund I, LLC, a Delaware limited liability company, its Manager
By:	Orchard A Investor, LLC, a California limited liability company, its Operating Member
By:	/s/ Michael J. Biggar
	Michael J. Biggar, Manager

Dated: January 12, 2010

TENANT
Bloom Energy Corporation, a Delaware corporation
By:	/s/ KR Sridhar
	KR Sridhar, Chief Executive Officer
By:	/s/ William Kurtz
	William Kurtz, Chief Financial Officer

Dated: January 12, 2010

Second Amendment To Lease Page 6 of 6

THIRD AMENDMENT TO LEASE

THIS THIRD AMENDMENT TO LEASE (this “Third Amendment”) is made as of April 30, 2015, by and between 1252 AND 1310 ORLEANS INVESTORS, LLC, a Delaware limited liability company (“Landlord”), and BLOOM ENERGY CORPORATION, a Delaware corporation (“Tenant”).

RECITALS

A. Landlord and Tenant are now parties to that certain Standard Industrial Lease dated as of April 5, 2005, as amended by that certain First Amendment to Lease dated as of April 22, 2005, and as further amended by that certain Second Amendment to Lease dated as of January 12, 2010 (“Second Amendment”) (as amended, the “Lease”). Pursuant to the Lease, Tenant leases certain premises consisting of approximately 50,000 rentable square feet (“Premises”) in a building located at 1252 Orleans, Sunnyvale, California. The Premises are more particularly described in the Lease. Capitalized terms used herein without definition shall have the meanings defined for such terms in the Lease.

B. The Lease Term is scheduled to expire on December 31, 2015.

C. Landlord and Tenant desire, subject to the terms and conditions set forth below, to amend the Lease to, among other things, extend the term of the Lease through December 31, 2020 (“Third Amendment Expiration Date”).

NOW, THEREFORE, in consideration of the foregoing Recitals, which are incorporated herein by this reference, the mutual promises and conditions contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Landlord and Tenant hereby agree as follows:

1. Term. The term of the Lease is hereby extended through the Third Amendment Expiration Date. Except as otherwise expressly provided in this Third Amendment, Tenant’s occupancy of the Premises through the Third Amendment Expiration Date shall be on an “as-is” basis and Landlord shall have no obligation to make any alterations to the Premises. Notwithstanding anything to the contrary contained in the Lease, Tenant shall have no right to extend the term of the Lease beyond the Third Amendment Expiration Date.

2. Monthly Base Rent. Tenant shall continue to pay Monthly Base Rent as set forth in the Lease through December 31, 2015. Commencing on January 1, 2016, Tenant shall pay a Monthly Base Rent (in addition to any additional amounts due under the Lease) in the amount of $2.10 per rentable square foot of the Premises per month on a triple net basis. Monthly Base Rent shall be increased on January 1, 2017, and on each subsequent January 1^st during the term (each, an “Adjustment Date”) by multiplying the Monthly Base Rent payable immediately before such Adjustment Date by 3% and adding the resulting amount to the Monthly Base Rent payable immediately before such Adjustment Date.

Period	Base Rent per square foot per month		Base Rent per month
Months 1-12	$	2.10 NNN	$	105,000.00
Months 13-24	$	2.16 NNN	$	108,150.00
Months 25-36	$	2.23 NNN	$	111,394.50
Months 37-48	$	2.29 NNN	$	114,736.34
Months 49-60	$	2.36 NNN	$	118,178.43

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3. Tenant Improvement Allowance. After the mutual execution and delivery of this Third Amendment by the parties, Landlord shall make available to Tenant a tenant improvement allowance of up to $6.50 per rentable square foot of the Premises, or $325,000 in the aggregate (the “TI Allowance”) for the design, construction and/or installation of cosmetic improvements to the Premises desired by and performed by Tenant and which improvements shall be of a fixed and permanent nature, and shall be constructed pursuant to space plans mutually approved by Landlord and Tenant (the “Tenant Improvements”). The TI Allowance shall be available only for the design, construction and/or installation of the Tenant Improvements. Tenant acknowledges that upon the expiration of the term of the Lease, the Tenant Improvements shall become the property of Landlord and may not at any time be removed by Tenant. The TI Allowance shall not be used to purchase any furniture, personal property or other non-Building system materials or equipment. Except for the TI Allowance, Tenant shall be solely responsible for all of the costs of the Tenant Improvements. The Tenant Improvements shall be treated as Alterations and shall be undertaken pursuant to Section 13 of the original Lease; provided, however, that in no event shall any portion of the Tenant Improvements constitute Permitted Alterations. Notwithstanding anything to the contrary contained in the Lease, Landlord shall receive a construction management fee in connection with the Tenant Improvements in the amount equal to 3% of the cost of the Tenant Improvements, which Fee shall be payable out of the TI Allowance and subject to the cap provided for in Section 13.1 of the original Lease. The contractor(s) for the Tenant Improvements shall be selected by Tenant, subject to Landlord’s approval, which approval shall not be unreasonably withheld. The Landlord hereby consents and approves the use of McLarney Construction for Tenant Improvements. Prior to the commencement of construction of the Tenant Improvements, Tenant shall deliver to Landlord a copy of its contract(s) with Tenant’s contractor(s), and certificates of insurance from any contractor(s) performing any part of the Tenant Improvements evidencing industry standard commercial general liability, automotive liability, “builder’s risk”, and workers’ compensation insurance. Tenant shall cause its contractor(s) to provide a certificate of insurance naming Landlord and Landlord’s lender (if any) as additional insureds for the contractor(s)’ liability coverages required above.

During the course of design and construction of the Tenant Improvements, Landlord shall reimburse Tenant for the cost of the Tenant Improvements once a month against a draw request in Landlord’s standard form, containing evidence of payment of the applicable costs and such certifications, lien waivers (including a conditional lien release for each progress payment and unconditional lien releases for the prior month’s progress payments), inspection reports and other matters as Landlord customarily and reasonably obtains, to the extent of Landlord’s approval thereof for payment, no later than 30 days following receipt of such draw request. Upon completion of the Tenant Improvements (and prior to any final disbursement of the Improvements Allowance), Tenant shall deliver to Landlord the following items: (i) sworn statements setting forth the names of all contractors and subcontractors who did work on the Tenant Improvements and final lien waivers from all such contractors and subcontractors; and (ii) “as built” plans for the Tenant Improvements. The TI Allowance shall only be available for use by Tenant for the construction of the Tenant Improvements until the date that is 12 months after the mutual execution and delivery of this Third Amendment by the parties, and any portion of the TI Allowance which has not been disbursed by Landlord on or before such date shall be forfeited and shall not be available for use by Tenant.

4. Right of First Offer. As of the date of this Third Amendment, Section 5 of the Second Amendment is hereby null and void and of no further force or effect, and Tenant shall have no right to expand the Premises.

5. Disclosure. For purposes of Section 1938 of the California Civil Code, as of the date of this Third Amendment, Tenant acknowledges having been advised by Landlord that the Project has not been inspected by a certified access specialist.

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6. OFAC. Tenant, and all beneficial owners of Tenant, are currently (a) in compliance with and shall at all times during the Term of the Lease remain in compliance with the regulations of the Office of Foreign Assets Control (“OFAC”) of the U.S. Department of Treasury and any statute, executive order, or regulation relating thereto (collectively, the “OFAC Rules”), (b) not listed on, and shall not during the Term of the Lease be listed on, the Specially Designated Nationals and Blocked Persons List maintained by OFAC and/or on any other similar list maintained by OFAC or other governmental authority pursuant to any authorizing statute, executive order, or regulation, and (c) not a person or entity with whom a U.S. person is prohibited from conducting business under the OFAC Rules.

7. Brokers. Landlord and Tenant each represents and warrants that it has not dealt with any broker, agent or other person (“Broker”) in connection with the transaction reflected in this Third Amendment and that no Broker brought about this transaction, other than CBRE and Jones Lang LaSalle. Landlord and Tenant each hereby agrees to indemnify and hold the other harmless from and against any claims by any Broker, other than CBRE and Jones Lang LaSalle, claiming a commission or other form of compensation by virtue of having dealt with Tenant or Landlord, as applicable, with regard to this leasing transaction.

8. Miscellaneous.

a. This Third Amendment is the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous oral and written agreements and discussions. This Third Amendment may be amended only by an agreement in writing, signed by the parties hereto.

b. This Third Amendment is binding upon and shall inure to the benefit of the parties hereto, and their respective successors and assigns.

c. This Third Amendment may be executed in any number of counterparts, each of which shall be deemed an original, but all of which when taken together shall constitute one and the same instrument. The signature page of any counterpart may be detached therefrom without impairing the legal effect of the signature(s) thereon provided such signature page is attached to any other counterpart identical thereto except having additional signature pages executed by other parties to this Third Amendment attached thereto.

d. Signatures of this Third Amendment transmitted via electronic mail (*.pdf or similar file types) shall be valid and effective to bind the party so signing. Tenant agrees to promptly deliver to Landlord an execution original to this Third Amendment with its actual signature, but a failure by Tenant to do so shall not affect the enforceability of this Third Amendment, it being expressly agreed that each party to this Third Amendment shall be bound by its own electronically mailed signature in all instances and shall accept the electronically mailed signature of the other party to this Third Amendment.

e. Except as amended and/or modified by this Third Amendment, the Lease is hereby ratified and confirmed and all other terms and provisions of the Lease shall remain in full force and effect, unaltered and unchanged by this Third Amendment. In the event of any conflict between the terms and provisions of this Third Amendment and the terms and provisions of the Lease, the terms and provisions of this Third Amendment shall prevail. Whether or not specifically amended by this Third Amendment, all of the terms and provisions of the Lease are hereby amended to the extent necessary to give effect to the purpose and intent of this Third Amendment.

[Signatures are on the next page]

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IN WITNESS WHEREOF, the parties hereto have executed this Third Amendment as of the day and year first above written.

LANDLORD:	1252 AND 1310 ORLEANS INVESTORS, LLC,
	a Delaware limited liability company
	By:	CBRE Global Investors Creative Office Investments, LLC, a Delaware limited liability company Its Member
		By:
		Name:	Brian Ma
		Title:	Authorized Signatory
TENANT:	BLOOM ENERGY CORPORATION,
	a Delaware corporation
	By:
	Its:	CFO

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Please note that the terms “Seller” and “Buyer” are defined by the CA Civil Code to include a lessor and lessee, respectively.

This form must be delivered before or concurrently with the signing of the purchase and sale contract (or lease). In lieu of this form, such confirmation may also be set forth in the purchase and sale contract (or lease).

REPRESENTATION CONFIRMATION

Date:	April 27, 2015
Seller/Lessor:	1252 and 1310 Orleans Investors, LLC
Buyer/Lessee:	Bloom Energy Corporation
Property Name:
Street Address, City, State:	1252 Orleans Drive, Sunnyvale, CA 94089
Further described as:	±50,000 rentable square feet

A real estate agent, either acting directly or through one or more associate licensees, can legally be the agent of both the Seller and the Buyer in a transaction, but only with the knowledge and consent of both the Seller and the Buyer. In a dual agency situation, the agent has the following affirmative obligations to both the Seller and the Buyer:

(a) A fiduciary duty of utmost care, integrity, honesty and loyalty in the dealings with either the Seller or the Buyer.

(b) Other duties to the Seller and the Buyer as stated above in their respective sections.

In representing both Seller and Buyer, the agent may not, without the express permission of the respective party, disclose to the other party that the Seller will accept a price less than the listing price or that the Buyer will pay a price greater than the price offered. The above duties of the agent in a real estate transaction do not relieve a Seller or Buyer from the responsibility to protect his or her own interests. You should carefully read all agreements to assure that they adequately express your understanding of the transaction. A real estate agent is a person qualified to advise about real estate. If legal or tax advice is desired, consult a competent professional. Throughout your real property transaction you may receive more than one disclosure form, depending upon the number of agents assisting in the transaction. The law requires each agent with whom you have more than a casual relationship to present you with this disclosure form. You should read its contents each time it is presented to you, considering the relationship between you and the real estate agent in your specific transaction

Jeff Houston / CBRE	is the Agent of (check one)
Name of Listing Agent

the seller exclusively; or ¨ both the buyer and seller.

Steve Levere, Jones Lang LaSalle            /s/ Steve Levere	is the Agent of (check one)
Name of Selling Agent (Procuring Broker) if not the same as the Listing Agent

the buyer exclusively; or ¨ the seller exclusively; or ¨ both the buyer and seller.

SELLER/LESSOR		BUYER/LESSEE
BY:	/s/ Brian Ma	BY:	/s/ Randy Furr
PRINT NAME:	Brian Ma	PRINT NAME:	Randy Furr
TITLE:	CBRE, Global Investments, Director	TITLE:	CFO

September 2014

FOURTH AMENDMENT TO LEASE

THIS FOURTH AMENDMENT TO LEASE (this “Fourth Amendment”) is made as of December 7, 2015, by and between 1252 AND 1310 ORLEANS INVESTORS, LLC, a Delaware limited liability company (“Landlord”), and BLOOM ENERGY CORPORATION, a Delaware corporation (“Tenant”).

RECITALS

A. Landlord and Tenant are now parties to that certain Standard Industrial Lease dated as of April 5, 2005, as amended by that certain First Amendment to Lease dated as of April 22, 2005, as further amended by that certain Second Amendment to Lease dated as of January 12, 2010, and as further amended by that certain Third Amendment to Lease dated as of April 30, 2015 (as amended, the “Lease”). Pursuant to the Lease, Tenant leases certain premises consisting of approximately 50,000 rentable square feet (“Premises”) in a building located at 1252 Orleans, Sunnyvale, California. The Premises are more particularly described in the Lease. Capitalized terms used herein without definition shall have the meanings defined for such terms in the Lease.

B. The Term is scheduled to expire on December 31, 2020.

C. Landlord and Tenant desire, subject to the terms and conditions set forth below, to amend the Lease to, among other things, allow Tenant to terminate the Term as of December 31, 2018.

NOW, THEREFORE, in consideration of the foregoing Recitals, which are incorporated herein by this reference, the mutual promises and conditions contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Landlord and Tenant hereby agree as follows:

1. Termination Right. Tenant shall have the one-time right, subject to the provisions of this Section 1, to terminate the Term of the Lease (“Termination Right”) with respect to the entire Premises only effective as of December 31, 2018 (the “Early Termination Date”), by delivery to Landlord of prior written notice of such election to terminate the Term of the Lease (the “Termination Notice”) on or before June 30, 2018. If Tenant timely and properly exercises the Termination Right, (a) Tenant shall continue to pay Base Rent, Operating Expenses and all other amounts due under the Lease through the Early Termination Date, (b) Tenant shall vacate the Premises and deliver possession thereof to Landlord in the condition required by the terms of the Lease on or before the Early Termination Date, and (c) Tenant shall have no further obligations under the Lease except for those accruing prior to the Early Termination Date and those which, pursuant to the terms of the Lease, survive the expiration or early termination of the Lease. If Tenant does not deliver to the Termination Notice to Landlord within the time period provided in this paragraph, Tenant shall be deemed to have waived its Termination Right and the provisions of this Section 1 shall have no further force or effect.

2. Disclosure. For purposes of Section 1938 of the California Civil Code, as of the date of this Fourth Amendment, Tenant acknowledges having been advised by Landlord that the Project has not been inspected by a certified access specialist.

3. OFAC. Tenant, and all beneficial owners of Tenant, are currently (a) in compliance with and shall at all times during the Term of the Lease remain in compliance with the regulations of the Office of Foreign Assets Control (“OFAC”) of the U.S. Department of Treasury and any statute, executive order, or regulation relating thereto (collectively, the “OFAC Rules”), (b) not listed on, and shall not during the Term of the Lease be listed on, the Specially Designated Nationals and Blocked Persons List maintained by OFAC and/or on any other similar list maintained by OFAC or other governmental authority pursuant to any authorizing statute, executive order, or regulation, and (c) not a person or entity with whom a U.S. person is prohibited from conducting business under the OFAC Rules.

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4. Brokers. Landlord and Tenant each represents and warrants that it has not dealt with any broker, agent or other person (“Broker”) in connection with the transaction reflected in this Fourth Amendment and that no Broker brought about this transaction, other than CBRE and Jones Lang LaSalle. Landlord and Tenant each hereby agrees to indemnify and hold the other harmless from and against any claims by any Broker, other than CBRE and Jones Lang LaSalle, claiming a commission or other form of compensation by virtue of having dealt with Tenant or Landlord, as applicable, with regard to this leasing transaction.

5. Miscellaneous.

a. This Fourth Amendment is the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous oral and written agreements and discussions. This Fourth Amendment may be amended only by an agreement in writing, signed by the parties hereto.

b. This Fourth Amendment is binding upon and shall inure to the benefit of the parties hereto, and their respective successors and assigns.

c. This Fourth Amendment may be executed in any number of counterparts, each of which shall be deemed an original, but all of which when taken together shall constitute one and the same instrument. The signature page of any counterpart may be detached therefrom without impairing the legal effect of the signature(s) thereon provided such signature page is attached to any other counterpart identical thereto except having additional signature pages executed by other parties to this Fourth Amendment attached thereto.

d. Signatures of this Fourth Amendment transmitted via electronic mail (*.pdf or similar file types) shall be valid and effective to bind the party so signing. Tenant agrees to promptly deliver to Landlord an execution original to this Fourth Amendment with its actual signature, but a failure by Tenant to do so shall not affect the enforceability of this Fourth Amendment, it being expressly agreed that each party to this Fourth Amendment shall be bound by its own electronically mailed signature in all instances and shall accept the electronically mailed signature of the other party to this Fourth Amendment.

e. Except as amended and/or modified by this Fourth Amendment, the Lease is hereby ratified and confirmed and all other terms and provisions of the Lease shall remain in full force and effect, unaltered and unchanged by this Fourth Amendment. In the event of any conflict between the terms and provisions of this Fourth Amendment and the terms and provisions of the Lease, the terms and provisions of this Fourth Amendment shall prevail. Whether or not specifically amended by this Fourth Amendment, all of the terms and provisions of the Lease are hereby amended to the extent necessary to give effect to the purpose and intent of this Fourth Amendment.

[Signatures are on the next page]

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IN WITNESS WHEREOF, the parties hereto have executed this Fourth Amendment as of the day and year first above written.

LANDLORD:	1252 AND 1310 ORLEANS INVESTORS, LLC,
	a Delaware limited liability company
	By:	CBRE Global Investors Creative Office Investments, LLC, a Delaware limited liability company Its Member
	By:	/s/ Derek Landry
TENANT:	Name:	Derek Landry
	Title:	Authorized Signatory
	a Delaware corporation
	By:	/s/ Randy Furr
	Its:	CFO, Randy Furr

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EX-10

Exhibit 10.8

GROUND LEASE

by and between

1743 HOLDINGS, LLC,

as Landlord

and

BLOOM ENERGY CORPORATION

as Tenant

Site: Approximately 271 acres of land located in New Castle County, Delaware

Premises: Approximately 50 acres of land located at and forming a part of the Site

TABLE OF CONTENTS

		Page
SCHEDULE OF TERMS			-1-
1.	DEMISE OF PREMISES		-6-
2.	TERM; EXTENSION		-6-
3.	TENANT’S EARLY ACCESS; DUE DILIGENCE.		-9-
4.	CONSTRUCTION AND ALTERATIONS		-9-
5.	RENT		-10-
6.	TAXES		-10-
7.	USE OF PREMISES		-12-
8.	UTILITIES		-13-
9.	MAINTENANCE AND REPAIR		-13-
10.	SIGNAGE; TRAFFIC SIGNAL		-14-
11.	COMMON AREAS AND FACILITIES; EASEMENTS		-14-
12.	ASSIGNMENT AND SUBLETTING		-15-
13.	INSURANCE AND INDEMNITY		-16-
14.	CONDEMNATION		-18-
15.	DAMAGE TO OR DESTRUCTION OF PREMISES		-19-
16.	DEFAULTS		-19-
17.	QUIET ENJOYMENT		-20-
18.	ESTOPPEL CERTIFICATES; SUBORDINATION		-20-
19.	REGULATED SUBSTANCES		-21-
20.	LIABILITY OF LANDLORD		-21-
21.	LANDLORD WARRANTY OF TITLE		-21-
22.	MUTUAL REPRESENTATIONS AND WARRANTIES		-22-
23.	NOTICES		-22-
24.	RECORDING		-22-
25.	ATTORNEY’S FEES		-23-
26.	NO WAIVER		-23-
27.	APPLICABLE LAW; CONSTRUCTION OF LANGUAGE OF LEASE		-23-
28.	PARTIES BOUND		-23-
29.	BROKERS		-23-
30.	TABLE OF CONTENTS; CAPTIONS		-23-

TABLE OF CONTENTS

(continued)

		Page
31.	CALCULATION OF TIME	-23-
32.	SEVERABILITY	-24-
33.	COUNTERPARTS; ELECTRONIC DELIVERY	-24-
34.	TIME OF THE ESSENCE	-24-
35.	REASONABLENESS	-24-
36.	FORCE MAJEURE	-24-
37.	LEASEHOLD MORTGAGEE PROVISIONS	-24-
38.	LANDLORD’S WAIVER	-26-
39.	USE RESTRICTION ON SITE	-26-
40.	RIGHT OF FIRST REFUSAL	-27-
41.	OPTION TO PURCHASE	-28
42.	LEASE GUARANTY —
43.	ENTIRE AGREEMENT	-29-

LIST OF EXHIBITS, all of which are attached hereto and made a part hereof:

Exhibit “A”	—	Legal Description of the Site
Exhibit “B”	—	Depiction of the Premises
Exhibit “C”	—	Tenant’s Preliminary Plans
Exhibit “D”	—	Form of Memorandum of Lease
Exhibit “E”	—	Environmental Indemnity
Exhibit “F”		Roadwork Plan
Exhibit “G”		Surface Work Plan
Exhibit “H”		Guaranty Form

-ii-

SCHEDULE OF TERMS

Whenever any term below is mentioned in this Lease, the definition and/or information next to the corresponding term shall be incorporated in its meaning. When used herein, the singular shall apply to the plural, the plural to the singular, and the use of any gender shall apply to all genders.

A. ADDITIONAL RENT: All sums of money or charges required to be paid by Tenant under this Lease other than Base Rent, whether or not such sums or charges are designated “Additional Rent.”

B. AGENTS. The term “Agents” shall mean the following and their respective successors and assigns: (i) with respect to Landlord or Tenant, the agents, officers, partners, employees, contractors, invitees and licensees of such party; and (ii) in addition, with respect to Tenant, Tenant’s subtenants and suppliers and their respective agents, employees, contractors, and invitees.

C. APPRAISER: A member of the American Institute of Real Estate Appraisers, licensed in the State of Delaware, but is unaffiliated with either Landlord or Tenant and has at least ten (10) years prior experience in appraising commercial/industrial real estate in New Castle County, Delaware.

D. BASE RENT: $10.00 for the Initial Term.

E. COMMON AREAS AND FACILITIES: All common areas and facilities located on the Site and reasonably available for the joint use or benefit by Tenant along with other occupants of the site and their respective employees and invitees. Common Areas and Facilities shall include any and all driveways, sidewalks, walkways, curbs, entrances, exits, light facilities, utility lines (other than those dedicated to one occupant of the Site), landscaped areas, equipment, signs and facilities, now existing and from time to time hereafter furnished by Landlord in, on or upon the Site; provided, however, that features not commonly found in a first class science and technology park shall be excluded from this definition.

F. CONTAMINATION: Seeping, spilling, leaking, pumping, pouring, emitting, using, emptying, discharging, injecting, escaping, leaching, dumping, disposing, releasing or the presence of Regulated Substances which require notification, investigation, treatment, response or removal action or remediation under applicable Environmental Law.

G. ENVIRONMENTAL LAW: All federal, state and local laws, including principles of common law, regulations, statutes, codes, rules, resolutions, directives, orders, executive orders, consent orders, guidance from regulatory agencies, policy statements, judicial decrees, standards, permits, licenses and ordinances, or any judicial or administrative interpretation of any of the foregoing, pertaining to the protection of land, water, air, health, safety or the environment, whether now or in the future enacted, promulgated or issued. Environmental Law shall also include the terms and conditions as set forth in the Brownfields Development Agreement by and between the Department of Natural

Resources and Environmental Control (“DNREC”) and the University of Delaware dated October 27, 2009, and the Environmental Covenant (Operable Unit One) and Environmental Covenant (Operable Unit Eight) by and between DNREC and Landlord, each dated November 9, 2011 and such other Final Plans of Remediation and Environmental Covenants for Operable Unit Six as may be entered into by Landlord and DNREC in the future (the “OU-6 Agreements”) and the Contaminated Materials Management Plan for Operable Units One and Eight Dated December, 2011 prepared by Duffield Associates, Inc. on behalf of Landlord for DNREC, and such later Contaminated Materials Management Plan as may be prepared for DNREC in connection with Operable Unit Six (collectively, the “BDA”).

H. ENVIRONMENTAL INDEMNITY: That certain Environmental Indemnity Agreement between Landlord and Tenant dated of even date herewith and attached hereto as Exhibit “E.”

I. EVENT OF DEFAULT: the occurrence of an event set forth in Section 16 hereof.

J. EXTENSION OPTION(S): Four (4) options to extend the Initial Term for five (5) years each, exercisable in accordance with Section 2.2 hereof.

K. EXTENSION TERM: As set forth in Section 2.1 hereof.

L. FAIR MARKET RENT: The appraised fair market rental value of the Premises, under then-current zoning, as of the commencement of such Extension Term, calculated on a per annum basis. In determining Fair Market Rent, (i) it shall be assumed that there will no period of vacancy, no brokerage commission and no other leasing costs, (ii) the value of the Improvements shall be excluded from the Fair Market Rent and (iii) the rent shall be determined on the basis that the Premises are subject to the terms and conditions of this Lease.

M. GOVERNMENTAL AUTHORITIES: All federal, state and local governmental bodies, officials, and agencies having jurisdiction over the Premises or any activity being conducted on the Premises.

N. HAZARDOUS MATERIALS: Any Regulated Substance, including, without limitation, any hazardous or toxic substance, material, pollutant, or contaminant regulated under any Environmental Law, including, without limitation, lead-based paint, petroleum products, asbestos and PCBs.

O. IMPROVEMENTS: Any improvements and facilities constructed and installed by Tenant on the Premises, including all sidewalks, parking areas, driveways, curbing, landscaped areas, together with storm water management facilities and utilities constructed by Tenant, located on the Site and exclusively serving the Premises, if any.

P. INITIAL TERM: Twenty-five (25) years from the Effective Date.

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Q. INSPECTIONS: The investigations, studies and inspections of the Premises, and, in connection with storm water management or utility availability, the Site, performed by or upon the direction of Tenant, in Tenant’s sole and absolute discretion, including, but not limited to, all matters affecting the title, zoning, soil, hydrology, environmental, financial and legal condition, utilities and water and sewer capacity which Tenant may reasonably require in connection with the construction of the Improvements or the obtaining of the Permits.

R. LANDLORD’S ADDRESS:

1743 Holdings, LLC

c/o Office of General Counsel

University of Delaware

124 Hullihen Hall

Newark, Delaware 19716

S. LANDLORD’S WORK: (i) The Remediation Work; (ii) the Surface Work; (iii) the installation of landscaping buffer along the rear boundary line of the Premises in a location reasonably determined by Tenant as herein elsewhere provided (the “Landscaping”), (iv) any curb cut upgrades to the Premises for Road #1 and/or Road #2 as may be required by the Delaware Department of Transportation, (v) upgrading and maintaining existing entranceway for Road #1 along Christina Parkway necessary to connect the Premises to a public right-of-way; provided, however, that upgrading and Road Work shall be performed prior to Tenant’s receipt of a certificate of occupancy from the City of Newark, unless a longer period is permitted by the Delaware Department of Transportation, and (vi) the Road Work.

T. LAW: All federal, state, county and local governmental or quasi-governmental laws, statutes, codes, ordinances, rules, decrees, orders, standards and regulations, including, without limitation, Environmental Law.

U. LEASEHOLD MORTGAGE: A leasehold mortgage granted by Tenant encumbering its interest in the Premises in favor of any institutional third-party lender.

V. LEASEHOLD MORTGAGEE: The holder of a Leasehold Mortgage.

W. PERMITS: All permits, approvals, licenses, and permissions required from all applicable Governmental Authorities to permit the construction of the Improvements and use and the operation of the Premises for the Project, including, without limitation, site plan and development plan approvals and use, building, roads, curb cut, traffic, water and sewer connection, environmental and signage permits.

X. PREMISES: A portion of the Site containing approximately 50 acres consisting of approximately thirty (30) acres known as the “Phase 1 Area” and approximately twenty (20) acres known as the “Phase 2 Area”, as depicted on Exhibit “B” hereto, and as more particularly described by metes and bounds on Exhibit “B”.

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Y. PROJECT: The manufacture, storage, warehousing and distribution of solid oxide fuel cells, energy servers and their components and other electricity generating and green energy devices and apparatus and uses incidental thereto including, without limitation, office, research, development and storage.

Z. REGULATED SUBSTANCES: Any substances, chemicals, materials or elements that are prohibited, limited, regulated or governed by Environmental Law, or any other substances, chemicals, materials or elements: (i) defined as “hazardous substance” under the Comprehensive Environmental Response, compensation and Liability Act of 1980 (“CERCLA”) (42 U.S.C. §§9601, et seq), as amended by the Superfund Amendments and Reauthorization Act of 1986, and as further amended from time to time, and regulations promulgated thereunder; (ii) defined as a “regulated substance” within the meaning of Subtitle I of the Resource Conservation and Recovery Act (42 U.S.C. §§ 6991-6991), and regulations promulgated thereunder; (iii) designated as a “hazardous substance” pursuant to Section 311 of the Clean Water Act (33 U.S.C. § 1321), or listed pursuant to Section 307 of the Clean Water Act (33 U.S.C. § 1317; (iv) defined as “hazardous”, “toxic”, or otherwise regulated, under Environmental Law adopted by the State of Delaware, or its agencies or political subdivisions including, Delaware’s Hazardous Substance Cleanup Act, 7 Del. C. Chapter 91; (v) petroleum, petroleum products or derivatives or constituents thereof; (vi) asbestos or asbestos-containing materials; (vii) urea formaldehyde foam insulation or urea formaldehyde foam insulation-containing materials; (viii) lead based paint or lead based paint-containing materials; (ix) polychlorinated biphenyls or polychlorinated biphenyl-containing materials; (x) radon or radon-containing or producing materials; (xi) the presence of which requires notification, investigation or remediation under Environmental Law or common law; causes or threatens to cause a nuisance or trespass upon the Property or to adjacent properties, poses or threatens to pose a hazard to the health or safety of persons on or about the Property; or (xi) by any laws of any government authority require special handling in its collection, storage, treatment, or disposal.

AA. REMEDIATION WORK: The remediation of all existing Regulated Substances located on the Premises (whether known or unknown as the date hereof) to restricted use standards that shall not interfere with the Permitted Use of the Premises by Tenant as required by the Delaware Department of Natural Resources and Environmental Control and otherwise in compliance with Environmental Law.

BB. RENT: All Base Rent and Additional Rent payable by Tenant to Landlord under this Lease.

CC. ROAD WORK: The construction of Road # 1 (noted and shown in the shaded area on Exhibit “F” attached hereto) to be constructed by Landlord to a width of 32’ curb to curb and to such other design features and standards as the parties shall agree upon.

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DD. SITE: The parcel of land containing approximately 271 acres of which the Premises are a part and as depicted on Exhibit “A” hereto and also being known as tax parcel numbers 18-039.00-002 and 18-036.00-002 upon the New Castle County tax maps.

EE. SURFACE WORK: The removal of all asphalt, concrete and other man-made material under and on the surface of the Premises to a depth necessary to permit the construction of the Improvements, as reasonably determined by Tenant, with any “holes” created by removal of foundations to be backfilled, rough grading of the Premises substantially to the parameters as set forth on Exhibit “G” (the “Rough Grading”) and the stabilization of the Phase 1 Area in accordance with Law (utilizing straw and seed where permitted by Law for such stabilization), and the stabilization of the Phase 2 Area in accordance with Law; provided that, if Landlord’s choice of stabilization material differs from Tenant’s preference, the parties agree to divide evenly any additional cost incurred by Landlord to install Tenant’s preferred stabilization material. The types of stabilization materials shall be limited to only those permitted by Law.

FF. TAKING: The acquisition by any Governmental Authority in the legal and valid exercise of its power of eminent domain or by private purchase in lieu thereof or if Tenant is denied or deprived of either the use, occupancy and/or enjoyment of the Premises and/or the ability to operate its business thereon or therefrom by action or decree of any lawful power or authority or as a result of natural or other disaster, or by any written agreement between Landlord or any such power or authority or by the acquiescence of Landlord.

GG. TAXES: All taxes, assessments (special or otherwise) and charges levied upon or with respect to the Premises (both Land and Improvements) and any ad valorem taxes on personal property used in connection therewith, which are now or hereafter levied or assessed against Landlord by any federal, state, county or municipal authority or any district or other political or public entity, and shall also include any other tax, assessment, fee or excise, however described (whether general or special, ordinary or extraordinary, foreseen or unforeseen), which may be levied or assessed in lieu of, or as a substitute for, any real estate taxes. Taxes shall not include and Tenant shall not be required to pay any portion of any tax or assessment expense or any increase therein (i) attributable to Landlord’s income, franchise, gift, transfer, inheritance or capital stock taxes, (ii) levied on Landlord’s rental income, unless such tax or assessment is imposed in lieu of real property taxes, (iii) in excess of the amount which would be payable if such tax or assessment expense were paid in installments over the longest permitted term, (iv) imposed on land and improvements other than the Premises, (v) resulting from a change of ownership or transfer of any or all of the Site or the improvement of any of the Site for the sole use of other occupants and (vi) any taxes, assessments or charges for which Tenant is entitled to receive indemnification under the Environmental Indemnity. If at any time during the term of this Lease the assessment for the Premises is reduced on appeal with a result that Landlord receives a refund of any real estate taxes, Landlord shall pay to Tenant any such refund (net of Landlord’s out-of-pocket expenditures in connection with such appeal).

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HH. TENANT’S ADDRESS: c/o Bloom Energy Corporation, 1299 Orleans Drive, Sunnyvale, California 94089.

II. TENANT’S PROPORTIONATE SHARE: A fraction, the numerator of which shall be the total area of the Premises (i.e. 50 acres), and the denominator of which shall be the total area of the Site. As of the Effective Date, Tenant’s Proportionate Share equals 18.5%.

JJ. TENANT’S WORK: Construction of the Improvements.

KK. TERM: The Initial Term and any Extension Term.

LL. VENDOR/PARTNER: Any party which sells no less than a majority of its production output from its sublease premises to Tenant for use by Tenant at its facility on the Premises. A Vendor/Partner may not use its sublease premises primarily for warehouse or distribution purposes (other than for the benefit of the Project), but must be engaged in production of materials utilized by Tenant for the Project. “Vendor/Partner” shall include any other entity with which Tenant forms a joint venture or other cooperative entity or contractual relationship by which to research or develop technologies and products synergistic with Tenant’s Project or current or future clean energy products.

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GROUND LEASE

THIS GROUND LEASE (this “Lease” or this “Agreement”) is made as of the              day of March, 2012 (the “Effective Date”) by and between 1743 HOLDINGS, LLC, a Delaware limited liability company (“Landlord”) and BLOOM ENERGY CORPORATION, a Delaware corporation (“Tenant”).

WHEREAS, Landlord is the owner of certain property located in the City of Newark, Delaware (the “Campus”) which it owns and manages in order to serve the purposes of Landlord’s parent, the University of Delaware (“University”). The Campus was acquired by Landlord to expand the University’s overall campus and provide a site for, among other things, high technology partnerships between the University and leaders in various technology fields; and

WHEREAS, Tenant is a leader in the development and manufacture of solid oxide fuel cells which serve as a new class of distributed power generators producing clean, reliable and affordable electricity at the customer site (“Bloom Energy Servers”); and

WHEREAS, Landlord and the University have partnered with the State of Delaware in order to attract Tenant to the Campus, thus creating the opportunity for collaboration between Tenant and the University as well as the promotion of manufacturing job growth and other economic development benefits for Newark and the State of Delaware; and

WHEREAS, the hereinafter described Premises lie within the Campus. Landlord and Tenant believe that the Premises will provide an ideal site for the establishment by Tenant of a facility for the development and manufacture of Bloom Energy Servers, including the development and application of ancillary technology, and, for that purpose, Landlord has agreed to lease the Premises to Tenant under the favorable economic terms as more fully appear below; and

WHEREAS, Tenant has advised Landlord and the State of Delaware that several of Tenant’s vendor/partners may wish to colocate with Tenant. In order to encourage further job growth and further collaboration between the University and firms engaged in emerging energy technology, the Premises includes lands upon which vendor/partner facilities might be established.

The parties hereto, intending to be legally bound, hereby covenant and agree as follows:

1. DEMISE OF PREMISES.

(a) Landlord hereby leases to Tenant and Tenant hereby leases from Landlord, the Premises, upon the terms, covenants, and conditions set forth herein.

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(b) Except as otherwise expressly provided here in else where, the Premises are leased to Tenant in their present condition without representation or warranty by Landlord and subject to the existing state of title, all existing covenants, restrictions, easements, agreements and regulations, if any, any state of facts an accurate survey might show, zoning rules, restrictions, regulations, resolutions, ordinances, building restrictions and governmental regulations now in effect or hereafter adopted by any governmental authority having jurisdiction over the Premises. Tenant represents that it has examined the Premises and title thereto and has found all of the same satisfactory for all purposes. Without limiting the generality of the foregoing, Tenant expressly acknowledges and agrees that, except as otherwise provided in this Lease, Tenant is not relying on any representation or warranty of Landlord, or any of its directors, officers, members, partners, agents or employees, whether implied, presumed or expressly provided at law or otherwise, arising by virtue of any statute, common law or other legally binding right or remedy in favor of Tenant. Furthermore, without limiting the foregoing provisions, except as otherwise provided in this Lease, Tenant waives all right to recover and forever releases and discharges Landlord and its directors, officers, members, partners, agents or employees from, and covenants not to sue Landlord or any of its directors, officers, members, partners, agents or employees for, any and all claims, whether direct or indirect, known or unknown, foreseen or unforeseen, that may arise on account of or in any way be connected with the condition of the Premises or any laws, ordinances, rules, regulations or requirements applicable thereto, including, without limitation, any claim or matter relating to the use, presence, discharge or release of any hazardous substance or hazardous waste on, under, in, above or about the Premises; provided, however, the foregoing shall not apply to any breach of Landlord’s obligations set forth in this Lease or the Environmental Indemnity.

2. TERM; EXTENSION.

2.1 Term. The Initial Term shall commence on the Effective Date and shall end on the twenty-fifth (25^th) anniversary of such date, subject to Tenant’s right to extend the Initial Term.

2.2 Extension Terms. Tenant shall have the right and option to extend the Initial Term for four (4) successive periods of five (5) years each (each successive period, an “Extension Term” and collectively, the “Extension Terms”). Tenant’s exercise of an Extension Option shall be by notice to Landlord at least one (1) year prior to the last day of either the Initial Term or of the Extension Term then in effect, as the case may be. Each Extension Term shall be upon the same terms, covenants, conditions and provisions as are in effect as of the Expiration Date of the Initial Lease Term, except for the Base Rent which shall be equal to the then Fair Market Rent for the Premises as determined in accordance with Section 2.3.

2.3 Determination of Fair Market Rent.

(a) Within thirty (30) days after Tenant’s delivery of Tenant’s notice of its exercise of the Extension Option, Landlord and Tenant shall work in good faith to agree upon the base rent payable during the Extension Term. If Landlord and Tenant do not reach agreement within such thirty (30) day period, Landlord and Tenant shall each, within fifteen (15) days after the end of such thirty (30) day period, select an Appraiser who shall act on such party’s behalf in determining the Fair Market Rent.

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(b) Within thirty (30) days after the selection of Tenant’s and Landlord’s Appraisers, the two (2) Appraisers shall render a joint written determination which shall be the Fair Market Rent. If the two (2) Appraisers are unable to agree upon a joint written determination within said thirty (30) day period, the two (2) Appraisers shall select a third Appraiser within ten (10) days after the expiration of such thirty (30) day period and shall each submit a determination of the Fair Market Rent to such third Appraiser.

(c) If the two (2) Appraisers cannot agree on a third, Landlord or Tenant may request that the local chapter of the American Arbitration Association appoint a party to act as the third Appraiser. Within thirty (30) days after the appointment of the third Appraiser, the third Appraisal shall render a written determination of the Fair Market Rent, which must be either the Landlord’s Appraiser’s determination as submitted or the Tenant’s Appraiser’s determination as submitted, but no other amount and no compromise between the two.

(d) If either Landlord or Tenant fails or refuses to select an Appraiser, and such failure continues for five (5) days after written notice, the other Appraiser shall alone determine the Fair Market Rent.

(e) Within fourteen (14) days after Tenant’s receipt of the determination of the Base Rent from either the two (2) Appraisers or the third Appraiser, as the case may be, Tenant shall have the right to revoke its exercise of the Extension Option if Tenant, in its sole discretion, is not in agreement with the Base Rent as determined by such Appraisers.

(f) Landlord shall bear the fee and expenses of its Appraiser; Tenant shall bear the fee and expenses of its Appraiser; and Landlord and Tenant shall share equally the fee and expenses of the third Appraiser, if one is required.

3. TENANT’S EARLY ACCESS; DUE DILIGENCE.

3.1 Permits.

(a) Tenant agrees to proceed with diligence and in good faith to submit the necessary applications, plans and specifications to the appropriate Governmental Authorities to obtain the Permits and commence Tenant’s Work. At Tenant’s request, subject to Landlord’s consent, not to be unreasonably withheld, conditioned or delayed, Landlord shall join in all applications prepared by Tenant and otherwise cooperate with Tenant (but at no expense to Landlord, except for Landlord’s counsel fees, if any) in accomplishing the foregoing. At all times, Landlord shall reasonably cooperate with Tenant in Tenant’s efforts to obtain the Permits. Landlord agrees to respond within five (5) business days in connection with such effort. Landlord shall not, without Tenant’s prior consent, seek any subdivision, zoning or other consent, permit or approval from any governmental body that would obligate Tenant to construct any improvement or incur any liability (other than for Tenant’s Proportionate Share of the costs for the operation, maintenance and repair of the Common Areas and Facilities, to the extent provided in this Lease or the Declaration or which would materially and adversely affect the use or occupancy or the Premises or any improvement now or hereafter constructed thereon. Tenant acknowledges Landlord shall subdivide the Premises, at Landlord’s sole cost, from the Site to create a separate tax parcel.

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(b) Except as expressly otherwise provided herein, while assisting Tenant to obtain the Permits or otherwise during the Term, Landlord shall not accept, agree to or otherwise incorporate into documents any condition, restriction, limitation that would materially and adversely affect Tenant’s ability to use the Premises for the Permitted Use or added material expense in any federal, state, county or local permit, application, approval or agreement, nor shall Landlord enter into any agreement binding or placing any material obligations whatsoever on Tenant, without in each and every instance first obtaining the express consent of Tenant, not to be unreasonably withheld, conditioned or delayed. Landlord is expressly authorized to enter into the OU-6 Agreements, a Contaminated Materials Management Plan for OU-6 and record an Environmental Covenant on the portion of Operable Unit 6 that lies within the boundaries of the Premises. Tenant agrees to be bound by the terms thereof, as well as the remaining parts of the BDA, subject to the Landlord’s performance of its obligations under the Environmental Indemnity.

(c) Tenant shall have the right, but not the obligation, to contest the denial of any Permits and/or to contest any appeal taken by any other party with respect to the grant or issuance of any Permit.

3.2 Utilities and Zoning. Except to the extent already provided by Tenant’s engineers and contractors, or the City of Newark, Landlord shall deliver to Tenant, within one-hundred eighty (180) days following the Effective Date, evidence of the availability of all necessary utilities at or adjacent to the Site and a certificate of zoning evidencing that the Premises are zoned so as to permit Tenant’s construction of the Improvements and Tenant’s intended use of the Premises. Such evidence and certificate shall be in a form and substance reasonably satisfactory to Tenant. Landlord shall not agree to any change in the zoning applicable to the Premises during the Term without Tenant’s prior written consent, which consent may be withheld in Tenant’s sole discretion.

3.3 Inspections. From and after the Effective Date, Tenant and Tenant’s Agents shall have a license to enter the Premises, and, in connection with off-Premises stormwater management or running utilities to the Premises, the Site, at its own risk for the purpose of conducting the Inspections and constructing the Improvements. Tenant agrees to repair and restore any damage to the Site caused by the Inspections at its expense and Tenant also agrees to indemnify, defend and hold harmless Landlord from and against all costs, expenses and liabilities arising out of the Inspections, including, without limitation, reasonable attorneys’ fees and court costs; provided, however, that the foregoing indemnity shall exclude any loss, cost, damage, claim or liability incurred by Landlord resulting from (a) the existence of, or the mere discovery by Tenant or Tenant’s Agents of defects or other adverse conditions at the Site; and (b) the gross negligence or willful misconduct of Landlord or Landlord’s Agents. The foregoing indemnity shall survive the termination of this Lease. Prior to performing any Inspections, Tenant shall deliver to Landlord a certificate of insurance evidencing a commercial general liability insurance policy covering the Inspections, which policy shall conform to the provisions of Section 12 hereof.

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3.4 Title and Survey.

(a) Tenant may obtain a title insurance commitment for the Premises (the “Title Commitment”) issued by Old Republic Title, First American Title or another title insurance company acceptable to Tenant (the “Title Company”) in the amount of the leasehold interest in the Premises and the Improvements, committing to insure Tenant against loss on account of any defect or encumbrance in the title, unless herein excepted and an ALTA survey of the Premises (the “Survey”).

(b) On the Effective Date, Landlord shall deliver to the Title Company, with a copy thereof to Tenant, (i) an affidavit with respect to (i) mechanic’s liens, certifying that as of the Effective Date there are no known unpaid bills rendered or to be rendered for services performed or materials furnished to the Premises or that the same will be paid in the ordinary course of business; and (ii) parties in possession, certifying that on the Effective Date, there are no parties other than Landlord in possession of the Premises; and (iii) provided the same do not expand any liability of Landlord beyond the terms of the Lease, any other affidavits or documents reasonably required by the Title Company to enable the Title Company to record a memorandum of this Lease, delete the standard title exceptions from Tenant’s title insurance policy (assuming Tenant has obtained a satisfactory Survey) and issue said title policy in the form reasonably required by Tenant.

(c) After the date hereof, Landlord shall in no way encumber or burden the Premises (except as expressly permitted under this Lease) without the prior written consent of Tenant, such consent not to be unreasonably withheld, conditioned or delayed.

4. CONSTRUCTION AND ALTERATIONS.

4.1 Landlord’s Work.

(a) Landlord shall, at Landlord’s sole cost and expense, promptly commence and diligently pursue and complete Landlord’s Work, in a good and workmanlike manner free of material defect and in accordance with the terms, covenants, conditions and provisions of this Lease, all Laws applicable to the Site and, if applicable, without implication of any right to approve Landlord’s Work in advance, any plans, drawings and specifications approved in advance by Tenant. Landlord shall indemnify, defend, protect and hold harmless Tenant and Tenant’s Agents from and against any Losses (defined in Section 13.2 below) arising out of the performance of Landlord’s Work.

(b) Landlord agrees to promptly apply for and diligently prosecute the issuance of all permits, licenses and approvals by Governmental Authorities and utility companies necessary for the commencement and completion of Landlord’s Work. Landlord shall use commercially reasonable efforts to ensure that the Remediation Work for the Premises (exclusive of the portion of the Premises that lies within Operable Unit Six) and the Surface Work for the Phase 1 Area (the “Phase 1 Landlord’s Work”) are substantially completed no later than April 15, 2012. All (other than the Road Work, Landscaping and road entrance

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upgrading) of Landlord’s Work including the Remediation of the portion of the Premises that lies within Operable Unit Six and the Rough Grading of the Phase II Area, shall be substantially complete no later than October 15, 2012 (the “Outside Final Completion Date;” i.e. six months after the Phase 1 Final Completion Date of April 15, 2012). Landlord’s Work shall be substantially complete on the date that Landlord is ready and able to deliver exclusive possession of the Premises to Tenant, and there remains to be completed only “punchlist items” of minor finishing and adjustment. Landlord further agrees to fully complete all punchlist items within thirty (30) days after substantial completion of Landlord’s Work.

(c) If the Phase 1 Landlord’s Work is not substantially complete on the April 15, 2012 (the “Phase 1 Final Completion Date”) or if all (other than the Landscaping, Road Work and road entrance upgrading) of Landlord’s Work is not substantially complete by the Outside Final Completion Date (provided, however, if Landlord is diligently pursuing completion, in Tenant’s reasonable judgment, the Outside Final Completion Date shall be extended such as to allow timely completion of such Landlord’s Work), then, in each case and in addition to Tenant’s other rights and remedies, Tenant shall be entitled to either: (i) terminate this Agreement by written notice to Landlord delivered no later than thirty (30) days following the Outside Completion Date; or (ii) demand reimbursement from Landlord for any additional construction costs reasonably incurred by Tenant as a result of Landlord’s delay and Landlord shall reimburse Tenant for such costs within ten (10) days after Tenant’s demand. Tenant’s failure to exercise its termination right with respect to the Phase 1 Final Completion Date shall not affect Tenant’s right to exercise its termination right with respect to the Outside Final Completion Date.

(d) The foregoing notwithstanding, the following shall apply as to the timing of the “Landscaping”: Following the completion of the initial Improvements to the Premises by Tenant, subject to seasonal considerations, Landlord promptly and diligently shall install (but shall not be responsible for the maintenance or replacement thereof) on the Premises, at its sole cost and expense, a line of trees or other type of landscaping along the rear Premises line behind the buildings initially constructed thereon by Tenant, in order to provide at the maturity of such trees or other type of landscaping a reasonable visual barrier from the remainder of the Site. Tenant agrees to provide access to the Premises to Landlord and its landscape contractor at appropriate times for the purpose of installing such landscaping.

(e) Landlord covenants with Tenant that during the completion of Landlord’s Work, Landlord shall use commercially reasonable efforts to avoid interfering with Tenant’s construction of the Improvements. Tenant covenants with Landlord that during the completion of the Tenant’s Work, Tenant shall use commercially reasonable efforts to avoid interfering with Landlord’s completion of the Landlord’s Work.

4.2 Improvements.

(a) Tenant shall construct all Improvements in accordance with Laws applicable to the Premises and substantially in accordance with Tenant’s Preliminary Plans. Attached hereto as Exhibit “C” are conceptual plans and preliminary exterior plans showing the general design of the building(s) to be erected, the exterior footprint of the Improvements to be

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constructed on the Premises and the general layout of the Premises in terms of access roads, parking and landscaping (“Tenant’s Preliminary Plans”). The parties acknowledge and agree that Landlord intends to develop the Site as a first-class office, science and technology campus, and that the aesthetics of the Improvements and overall design of the Premises have a material effect on Landlord’s goals and plans. Notwithstanding the foregoing, Tenant shall have no obligation to construct the Improvements in accordance with Tenant’s Preliminary Plans and may alter, increase or reduce the scope of any planned Improvements, whether or not depicted on the Tenant’s Preliminary Plans; provided, however, that the Improvements shall at all times be consistent with a first-class office, science and technology campus.

(b) Notwithstanding anything contained in this Lease to the contrary, Landlord shall have the right to terminate this Lease, at Landlord’s sole discretion, in the event that either (a) Tenant fails to commence construction of the Improvements within six (6) months of the completion of the Phase 1 Landlord’s Work, or (b) following such commencement of construction, such construction is not completed (to be evidenced by a permanent certificate of occupancy having been issued for the Improvements) on or before the date that is twenty-four (24) months from the date of commencement of construction; provided, however, that each of the foregoing time periods shall be automatically extended due to delays caused by force majeure. The parties agree to confirm in writing the date of completion of the Phase I Landlord Work and the commencement of construction of the Improvements. Landlord may exercise the foregoing termination right, if at all, by giving written notice of such termination to Tenant within ten (10) days following the expiration of the applicable time period and thereupon this Lease shall terminate on the date thereof, as though such date were the date set forth in this Lease for the expiration of the Term. Failure of Landlord to provide such written termination notice within said ten (10) day time period shall cause such termination right to be null and void.

(c) Where possible, Landlord shall permit Tenant to deposit any excess waste, soil or other materials generated from any excavations, grading and utility installations in connection with the construction of the Improvements in a location within the Site designated by Landlord, and in a manner as directed by Landlord so as to stabilize the same and consistent with Landlord’s intended development of the Site.

(d) Road Work.

(i) Road #2. The parties shall use commercially reasonable efforts to obtain approval from DelDOT to relocate the curb cut and roadway associated with Road #2 in a westerly direction to the approximate location shown on Exhibit F. In the event such relocation is approved by DelDOT, the parties shall negotiate in good faith toward an agreement regarding the sharing of costs associated with such relocation. Until any such relocation, the portion of Road #2 lying within the Premises shall be available for use by Landlord, its assignees, tenants, agents and invitees. This portion of Road #2 lying within the Premises shall be treated as a Common Area and Facility for purposes of maintenance responsibility and cost sharing. Tenant may relocate the portion of Road #2 lying within the Premises to another location within the Premises, but the same may not be relocated such as to materially interfere with Landlord’s, its assignees’, tenants’, agents’ and invitees’ use thereof as a Common Area and Facility.

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(ii) Road #1. Landlord shall improve and extend Road #1 along the easterly and northerly sides of the Premises, as shown in the shaded area of Exhibit “F”, attached hereto, and Landlord shall pay all costs associated with such road extension, except that Tenant shall be responsible for $195,000.00 of such costs. Tenant shall enjoy access to Road #1 at all times following its completion. The Road Work for Road #1 shall be completed on a date which is no later than the date on which Tenant receives a Certificate of Occupancy from the City of Newark. Landlord shall obtain all road Permits at its sole cost and expense.

4.3 Alterations. With Landlord’s consent, not to be unreasonably withheld, conditioned or delayed, Tenant shall have the right, at its sole cost and expense, to reconfigure, make changes, additions or alterations, structural or otherwise, to the Improvements during the Term, including, without limitation, buildings for Tenant’s Vendor/Partners (the “Alterations”); provided, however, interior changes, additions or alterations do not require Landlord’s consent. During the Term, the Improvements including, without limitation, all additions, alterations and improvements thereto or replacements thereof and all appurtenant fixtures, machinery and equipment installed therein shall be the property of Tenant. Any and all Improvements upon the Site at the expiration or sooner termination of this Lease, then become the property of Landlord and shall be surrendered at that time in their vacant, “broom clean” condition, casualty and condemnation excepted. Furthermore, in no event shall Tenant be liable to Landlord for any diminution in value of any portion of the Premises or of the Site that may result from Tenant’s Alterations or the Improvements.

4.4 Liens.

(a) Tenant shall keep the Premises free from any liens arising from any labor performed by or on behalf of, or materials furnished to, Tenant; provided, however, that Tenant may dispute any such lien so long as Tenant either causes such lien to be bonded within sixty (60) days or otherwise provides adequate assurance or creates an adequate reserve for the disputed portion of such lien. If any such lien attaches, and the same is not discharged of record or bonded off within sixty (60) days after Landlord notifies Tenant thereof, then Landlord shall have the option to discharge the same and Tenant shall reimburse Landlord for reasonable, direct costs associated with the removal of any such lien within five (5) business days of demand therefor as Additional Rent.

(b) Nothing contained in this Lease shall be construed as constituting the consent or request of Landlord, express or implied, to or for the furnishing of any labor, services or materials for any construction, alteration, addition, repair or demolition of or to the Premises or Improvements, or any part thereof. Notice is hereby given that Landlord will not be liable for any labor, services or materials furnished or to be furnished to Tenant, or to anyone holding the Premises or the Improvements or any part thereof through or under Tenant, and that no mechanic’s or other lien for any such labor, services or materials shall attach to or affect the interest of Landlord in and to the Premises or Site.

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4.5 The right of plan approval and disapproval reserved to Landlord in this Section 4 shall be exercisable by, and inure solely to the benefit of, Landlord and its successors in interest hereunder. In no event shall anything contained in this Section 4 be construed as conferring upon any person other than Landlord and its successors in interest hereunder any right to approve or disapprove the construction, erection, substitution, replacement or maintenance of any Improvements hereafter located upon the Premises. Landlord’s review of any plans shall be/was solely for Landlord’s benefit and may not be relied upon in any manner by Tenant or any third party, and Landlord shall not be deemed to have warranted or affirmed the sufficiency, the legality or the effectiveness thereof, and such approval shall not constitute any warranty or affirmation by Landlord with respect thereto.

5. RENT.

5.1 Upon the full execution of this Lease, Tenant shall pay to Landlord the Base Rent for the Initial Term. Commencing on the first day of the first Extension Term, Tenant shall pay Landlord the annual Base Rent, as determined in accordance with Section 2.3 above, in equal monthly installments on the first day of each calendar month in advance and without prior notice or demand. All Rent shall be payable to Landlord at its offices set forth in the Schedule of Terms, or to such other address as Landlord may so notify Tenant from time to time.

5.2 If Tenant shall fail to pay any Additional Rent when the same shall become due, following the expiration of applicable notice and cure periods, Landlord shall have all rights, powers and remedies with respect thereto as are provided herein or by law in the case of non-payment of Base Rent and shall, except as expressly provided herein, have the right to pay the same on behalf of Tenant. All payments of Base Rent and Additional Rent not timely paid by Tenant to Landlord within ten (10) days after the applicable notice and cure periods shall bear interest at a rate five (5) percentage points above the rate published as the prime rate in the Money Rates column of the Wall Street Journal, from time to time, prevailing as of the date(s) on which such payment(s) became due, from the date(s) on which such payment(s) became due, until paid. Tenant shall perform all of its obligations under this Lease at its sole cost and expense, and shall pay all Base Rent and Additional Rent when due, without notice or demand.

6. TAXES.

6.1 Payment of Taxes. Commencing on the Effective Date, unless paid directly by Tenant to any Governmental Authority, Tenant shall pay to Landlord one hundred percent (100%) of Taxes during the Term. Tenant shall pay one hundred percent (100%) of such Taxes on an annual basis within thirty (30) days after the date that Tenant receives from Landlord an invoice for such Taxes for the tax year(s) in question issued by the appropriate Governmental Authority; subject, however, to Tenant’s right of contest as hereafter set forth, and, provided further, Tenant shall not be responsible for any late fees, charges, penalties or interest due to Landlord’s delinquency or delay in payment of such Taxes. If any such invoice shall cover any period of time prior to the Effective Date or after the expiration of the Term, Tenant’s payment shall be appropriately prorated. Other than the payment of one hundred percent (100%) of Taxes, Tenant shall not be required to pay any other tax, levy, assessment or charge assessed against Landlord, including levies on rent and any gift, estate or inheritance tax. Landlord shall

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deliver evidence, reasonably acceptable to Tenant, that such Taxes have been paid in full within thirty (30) days after Tenant’s payment to Landlord thereof. Landlord also shall deliver to Tenant copies of all notices relating to the imposition of new Taxes, or the increase in real estate tax rates or assessments, at least twenty (20) days prior to any deadline for the filing of a contest to such imposition or increase as a matter of right so that Tenant may have ample time to contest the same.

6.2 Contesting Taxes. Tenant shall have the privilege, before delinquency occurs, of contesting the legality or amount of any such Taxes levied against the Premises in the name of Tenant, or, with Landlord’s consent, not to be unreasonably withheld, conditioned or delayed, both Landlord and Tenant. If Tenant, in good faith, believes such Taxes to be illegal or excessive, then Tenant may defer payment thereof as long as Tenant, at its sole cost and expense, shall diligently and in good faith contest the existence, amount or validity thereof by appropriate proceeding, provided such contest shall not subject Landlord to the risk of any civil or criminal liability; provided, however, that if payment of the whole or any part thereof becomes necessary to prevent the forfeiture of title to or a sale of the Premises, or to prevent eviction of either Landlord or Tenant because of non-payment thereof, Tenant shall pay the same to prevent such forfeiture, sale or eviction. Any such contest, in the first instance, shall be at the cost and expense of Tenant. Each refund of such Taxes so contested shall be paid to Landlord, but Landlord shall promptly remit to Tenant, upon receipt of such refund, all costs and expenses of such contest advanced by Tenant before retention or distribution, as the case may be, of the balance of such refund. Thereafter, Landlord shall promptly remit the balance of such refund to Tenant if Tenant has paid such Taxes. If Landlord receives a reimbursement, refund, credit or other retroactive adjustment of Taxes after Tenant has paid the same, Landlord shall promptly remit to Tenant upon receipt, such reimbursement, refund, credit or other retroactive adjustment, which payment obligation shall survive the Expiration Date of this Lease. The foregoing right of contest shall equally extend to any right to apply for or to request an abatement, deferral or reduction of Taxes relating to or arising from the completion or installation of any alterations or improvements to the Premises.

6.3 Determination of Taxes. If the Premises is taxed as part of either a larger tract of the entire Site, Landlord agrees to use its best efforts to have the Premises designated as a separate parcel for taxing purposes so that the assessed valuation of the land and buildings shall relate only to the land constituting the Premises and the Improvements. If the Premises is taxed as a portion of a larger tract or the entire Site and Landlord is unable to have the Premises designated as a separate parcel for taxing purposes, so that taxes are assessed upon the larger tract of which the Premises is a portion, Tenant agrees to pay that portion of the Taxes that is reasonably attributable to the Premises and the Improvements, determined as follows:

(a) If Taxes are identified or apportioned by the taxing authorities or are identifiable or apportionable based on valuation or other information furnished by the taxing authority so that the portion of the Taxes attributable to the value of the land can be distinguished from the portion of the Taxes attributable to the value of the buildings, then as to that portion of the Taxes attributable to the value of the land, Tenant will pay a percentage of such portion of the Taxes determined by dividing the area of the Premises by the total area of the larger tract or the entire Site, and as to the portion of the Taxes attributable to the value of the buildings, Tenant will pay a percentage of such portion of the Taxes determined by dividing the gross floor area of the Improvements by the gross floor area of all buildings located on the larger tract or the Site.

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(b) If Taxes are not identified or apportioned by the taxing authority and are not identifiable or apportionable based on valuation or other information furnished by the taxing authority so that the portion of the Taxes attributable to the value of the land cannot be distinguished from the portion of the Taxes attributable to the value of the buildings, then as to all Taxes, Tenant will pay a percentage of the Taxes determined by dividing the area of the Premises by the total area of the larger tract or the Site, or by some other method reasonably agreed upon by Landlord and Tenant.

(c) Unless the Premises is taxed on its own, based on its own tax parcel number, in which case only the tax bills need be provided to Tenant, Landlord’s invoice for Taxes shall set forth (A) the total Taxes on the larger tract accompanied by a copy of the tax bill; (B) whether the total Taxes on the larger tract are identifiable or apportionable between land and buildings and if so, the amount of Taxes attributable to the land and the amount of Taxes attributable to buildings; and (C) Tenant’s portion of the total Taxes together with a statement showing how Tenant’s portion was calculated in accordance with this Section.

6.4 Tax Incentives. At Tenant’s request, Landlord shall use commercially reasonable efforts (but at Tenant’s cost and expense) to subject the Premises to any business and economic development incentive programs made available by Governmental Authorities to abatement any personal or real property taxes due in connection with the Project and/or the Premises. Tenant agrees to reasonably cooperate with Landlord to seek such tax benefits.

7. USE OF PREMISES.

7.1 Covenants, Conditions and Restrictions. Landlord intends to use the Site as a science and technology campus. Following the execution of this Lease, Landlord shall have the right to impose reasonable covenants, conditions and restrictions on the construction, development and use of the Site (the “Declaration”). Landlord shall submit the Declaration to Tenant for Tenant’s prior written approval, which approval shall not be unreasonably withheld, conditioned or delayed. Notwithstanding the foregoing, Tenant may, in its sole and absolute discretion, disapprove any provision of the Declaration that (i) materially interferes with or restricts any of Tenant’s Permitted Uses of the Premises under this Lease, (ii) materially increases the obligations or decreases the rights of Tenant under this Lease, (iii) applies to Tenant or the Premises in a discriminatory manner, (iv) grants any lien that purports to be superior to Tenant’s interest in this Lease unless such lien is expressly subordinate to the lien of any Lender, (v) grants any other occupants of the Site the right of ingress or egress on or over the Premises, or (vi) otherwise materially interferes with Tenant’s use, occupancy or quiet enjoyment of the Premises. Tenant agrees to subject this Lease to the terms of any Declaration approved by Tenant in accordance with the terms of this paragraph.

7.2 Use. Tenant and Tenant’s Agents (including any Permitted Transferee) may use the Premises for the construction, operation, repair, replacement or modification of the Project, and the construction, location, use and operation of facilities for any of Tenant’s Vendor/Partners

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(the “Permitted Uses”). Landlord’s consent, not to be unreasonably withheld, conditioned or delayed, shall be required for any use other than the Permitted Uses, but in any and all events, any Permitted Uses must be permissible under all applicable Laws and consistent with a first-class office, science and technology campus.

7.3 Compliance with Legal Requirements.

(a) Except as otherwise provided in this Lease, Tenant, throughout the Initial Term and Extension Terms, if any, and at no expense whatsoever to Landlord, shall comply promptly or cause prompt compliance with all laws (including, without limitation, Environmental Law) and ordinances and the orders, rules, regulations and requirements of duly constituted public authorities, foreseen or unforeseen, ordinary as well as extraordinary, and whether or not the same shall presently be within the contemplation of the parties hereto or shall involve any change of governmental policy and irrespective of the cost thereof, which may be applicable to the Premises or Improvements, or the construction, repair or alteration thereof including, without limitation, the fixtures and equipment thereof or the use or manner of use of the Premises or Improvements. Tenant further agrees that it will, at its own cost and expense, fully and faithfully perform and observe all requirements and conditions of all contracts (including insurance policies), agreements and covenants applicable to the Premises or the ownership, occupancy or use thereof which are in existence and known to Tenant on the date hereof or which are hereafter entered into by Tenant or by Landlord with the consent of Tenant, including but not limited to, all requirements and conditions set forth in instruments recorded as of the Effective Date of this Lease and in any instrument recorded thereafter with the consent of Tenant.

(b) Tenant represents, warrants and covenants that Tenant’s (or any assignee’s or subtenant’s) use of the Premises will not result in or involve the use, generation, manufacture, refining, transportation, treatment, storage, handling or disposal of any Regulated Substances except in compliance with applicable Laws and as necessary for the Permitted Use.

(c) In addition to Landlord’s direct right to claim against Tenant for its breach of the provisions of the immediately preceding subparagraph (b) Tenant shall indemnify and hold harmless Landlord, its members, directors, officers, partners and any of its employees, against all cost incurred (including, without limitation, amounts paid pursuant to penalties, fines, orders, judgments or settlements and as attorney’s fees), arising out of any claim made by Federal, State or local agencies or departments or private litigants or third parties with respect to violations or alleged violations by Tenant or any of its agents, employees, contractors or invitees, or anyone holding the Premises or the Improvements or any part thereof through or under Tenant, of the provisions of the immediately preceding subparagraph (b). This obligation shall survive termination of this Lease.

(d) Landlord Cooperation.

(1) Generally. Subject to Landlord’s prior consent, not to be unreasonably withheld, conditioned or delayed, Landlord, from time to time, at the request of Tenant and at Tenant’s cost and expense, shall: (a) execute any documents, petitions, applications, and

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authorizations as are appropriate or required to obtain any permits, licenses, variances, approvals, subdivision plats, or other governmental approval or authorization for the Premises or any Improvements as contemplated in this Lease; (b) release existing easements or other rights in the nature of easements which are for the benefit of the Premises, (c) grant easements and other rights in the nature of easements related to the use of the Premises contemplated in this Lease including, but not limited to, easements and rights related to access to public roadways, and utility installations; (d) dedicate or transfer unimproved portions of the Premises for road, highway or other public purposes; (e) execute amendments to any covenants and restrictions affecting the Premises; and (f) execute and deliver to any person any instrument appropriate to confirm or effect such grants, release, dedications and transfers (to the extent of Landlord’s interest in the Premises), but only upon delivery to Landlord of a certificate from Tenant stating that such requested document is appropriate, required or beneficial for and not detrimental to the proper conduct of the business of Tenant at the Premises and does not materially reduce the value of the Premises.

(2) Railroad matters. The parties agree that Tenant may find it useful to take advantage of the shipping and logistical opportunities provided by the existence of a railroad freight yard immediately to the north of the Site. Tenant may make whatever arrangements it desires with the owner of such freight yard for the establishment, at no cost to Landlord, of loading and shipping facilities located on such freight yard. Landlord shall provide Tenant truck access from the Premises across the remainder of the Site, to a point on the northerly border of the Site which is reasonably selected by Landlord for access to such railroad freight yard. The path of such access shall determined and may be altered by Landlord in its reasonable discretion.

8. UTILITIES.

(a) Landlord shall be responsible at its sole cost for bringing to the Premises all utilities (i.e. water, gas, electric, phone, cable and T-3 Internet, but excluding sanitary sewer, which is the sole responsibility of Tenant, at Tenant’s sole cost) in sufficient quantities necessary for the construction of the Improvements and initial use of the Premises for the Project. From and after the commencement of construction of the Improvements, Tenant shall pay all utility imposed with respect to the Premises and the Improvements and consumed by Tenant during the Term of this Lease. The parties shall negotiate in good faith to reach agreement on the point of entry onto the Premises for the utilities, such agreement to be reached at or before a time which is consistent with the needs of Tenant’s construction schedule but, in no event, later than April 1, 2012. The parties agree that the objective of their negotiations is the selection of points of entry which captures the optimal compromise of the respective interests of the parties.

(b) Temporary electric (120/240 volts, 100 amps), temporary potable water sufficient for Tenant’s initial construction and fire needs (i.e., construction trailer needs) at the Premises and shall be brought to the Premises by Landlord at Landlord’s cost.

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(c) Final utilities shall be brought to the boundary of the Premises by Landlord on or before August 15, 2012. The utilities shall be in the following capacities:

	Phase 1 - Q2 2013		Phase 2 - Q3 2014
Water (GPD)		6,750		23,130
Sewage (GPD)		6,750		20,250
Gas (CFH)		27,415		27,415
Electricity (kVA)		3,200		9,000
Network (Mbps)		110		1000

For purposes of the final utilities, in the event that Landlord runs the final utility lines along the easterly side of Road #1, Tenant shall pay Landlord for the cost that Tenant would have incurred had Tenant brought the same utility lines from the southern lot line of the Premises to the same distance from Tenant’s building utility interconnection point as Road # 1’s distance from Tenant’s building utility interconnection point. If Landlord desires to oversize the utilities for use by other tenants on the Site, Landlord may do so at its sole cost and expense, however, Landlord shall be responsible for any proportionate costs associated with any such oversizing. For example, if Landlord oversizes the utilities by 60%, then Landlord is responsible for 60% of the trench digging costs on the Premises.

9. MAINTENANCE AND REPAIR. Throughout the Term, Tenant shall, at Tenant’s sole cost and expense, keep the Improvements and Premises in good and lawful order and condition (including, without limitation, all landscaping and sidewalks and curbing and storm water management ponds and drainage mechanisms constructed by Tenant whether located on or off the Premises), in keeping with an overall first-class office, science and technology campus, and in connection therewith, shall make or cause to be made all necessary repairs, alterations and/or replacements thereto, interior, exterior, structural and nonstructural, reasonable wear and tear excepted. All such repairs, alterations, and replacements shall be equal in quality to the original work.

10. SIGNAGE. Tenant shall be permitted to place interior and exterior signs including those that identify the names and/or logos of Tenant or Tenant’s Agents at the Premises and throughout the Improvements consistent with Tenant’s business practices and in compliance with all Laws. Landlord hereby grants Tenant the right, upon the termination, cancellation, or expiration of this Lease, to enter upon the Premises and remove any and all such signs, it being understood that Tenant shall repair any damage thereby caused to the Premises or the Improvements at its sole cost and expense. Tenant, at its expense, shall be permitted to place a panel on any pylon or monument signs erected by Landlord at any entrances to the Site. If any occupant of the Site is permitted to erect a pylon or monument sign at the Site or any additional pylon or monument signs are constructed at the Site, then in either event, Tenant shall be granted a similar privilege at its option to place a panel on Landlord’s pylon or monument sign or erect a pylon or monument sign at a location at the Site to be reasonably agreed upon by Tenant and Landlord.

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11. COMMON AREAS AND FACILITIES; EASEMENTS.

11.1 Grant. Tenant and Tenant’s Agents shall have the non-exclusive right of access to, egress from, and use of all Common Areas and Facilities, which shall be available to Tenant and Tenant’s Agents seven (7) days a week, twenty four (24) hours a day. Landlord hereby grants to Tenant and Tenant’s Agents, during the Term of this Lease, the use of all easements, rights and privileges appurtenant to the Premises together with the nonexclusive right to use all curb cuts (including all curb cuts on Christiana Parkway) driveways, roads, alleys, and means of ingress and egress to the Premises and located on the Site and all streets and highways abutting and adjacent to the Premises and Site for the purposes of pedestrian, service and vehicular access, ingress and egress to, from and between the Premises, the Site and the streets and highways abutting and adjacent to the Premises and Site without payment of any fee or other charge therefor (except as otherwise provided herein in connection with Tenant’s payment of its Proportionate Share for the maintenance and repair of the Common Areas and Facilities), which easements shall run as covenants with the Premises, provided that the aforesaid access and use by Tenant and Tenant’s Agents does not materially interfere with Landlord’s intended development and operation of the Site as an office, science and technology campus. The foregoing notwithstanding, Tenant, its Agents, contractors and employees, shall be permitted to park trucks on the Premises and not on any other portion of the Site.

11.2 Utility Easements. At Tenant’s request, subject to Landlord’s consent, not to be unreasonably withheld, conditioned or delayed, but subject to not materially interfering with Landlord’s intended development of the Site, Landlord shall grant reasonable easements to utility companies as may be required to service the Improvements. Tenant agrees to grant Landlord reasonable non-exclusive easements for underground utilities over and across the Premises for the benefit of the Site at such locations as may be mutually agreed upon by Landlord and Tenant, acting reasonably, provided, that such easements shall not substantially interfere with or obstruct Tenant’s construction, use, operation or maintenance of the Project or otherwise interfere with Tenant’s Permitted Use of the Premises.

11.3 Operation. As the same are constructed and completed, Landlord agrees to keep (or cause to be kept) the Common Areas and Facilities in good maintenance and repair. Tenant shall pay Tenant’s Proportionate Share of the cost of maintaining and repairing the Common Areas and Facilities pursuant to any Declaration approved by Tenant in accordance with the provisions of this Lease, or, if such Declaration has not been imposed by Landlord, Tenant shall be responsible for Tenant’s Proportionate Share of the maintenance and repair of the Common Areas and Facilities. From time to time, and prior to any invoice for such Proportionate Share, as Landlord’s plans for the Site develop and it plans to construct specific items of Common Area and Facilities, Landlord shall so advise Tenant and, at Tenant’s election, the parties shall discuss whether any particular item meets the definition of Common Area and Facilities provided by this Lease. Invoices for such Proportionate Share shall be accompanied by reasonable documentation and due within thirty (30) days of receipt.

11.4 General Covenants. Landlord agrees that (a) no fences or other obstructions prohibiting access to and from the Premises and the remainder of the Site shall be constructed during the Term and access to the Premises shall not be limited or restricted in any material way by Landlord; (b) Landlord shall not cause or permit any changes to the Common Areas and Facilities or other aspects of the Site that would materially interfere with Tenant’s use or occupancy of the Premises and the operation of Tenant’s business therefrom or materially increase the obligations (except for Tenant’s obligation to pay its Proportionate Share for the Common Areas and Facilities) or decrease the rights of Tenant under this Lease and (c) Landlord shall not materially interfere with the operation of Tenant’s business from the Premises.

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11.5 Temporary Closing of the Site. Any temporary closing of the Site by Landlord to prevent the acquisition of public rights shall not occur unless Landlord reasonably believes that such closing is required and shall not extend past the minimum period of time required by Law to prevent the acquisition of such public rights. If any such closure extends beyond the minimum period of time required by Law to prevent the acquisition of such public rights then, in addition to Tenant’s other rights and remedies, Tenant shall be allowed to abate the payment of Rent required hereunder for each day in excess of the minimum period of closing required by Law.

11.6 Sanitary Sewer Connection/Use. Tenant shall be entitled to utilize Tenant’s Proportionate Share of any sewer connection fee credits and/or sewer related use credits (collectively “Credit”) Landlord may be entitled to receive from New Castle County as a result of the operations and uses at the Site by Landlord or any prior owner or operator.

12. ASSIGNMENT AND SUBLETTING.

12.1 (a) Tenant shall not assign this Lease (which assignment may only be in its entirety) or sublet all or any portion of the Premises without Landlord’s prior consent which shall not be unreasonably withheld, conditioned or delayed. Notwithstanding the foregoing, Tenant shall have the right without Landlord’s prior consent to assign this Lease in its entirety or sublet all or any portion of the Premises to: (i) any corporation, limited liability company or partnership into or with which Tenant may be merged or consolidated; (ii) any corporation, limited liability company or partnership which shall be an affiliate, subsidiary, parent or successor of Tenant; (iii) any company or person who is a joint venturer or partner with Tenant in the use and operation of the Project; (iv) any Vendor/Partner (such Transfers to a Vendor/Partner, a “Vendor Transfer”, and each, of the foregoing, a “Permitted Transfer” and any such transferee, a “Permitted Transferee”); provided that: (x) with respect to a Vendor Transfer, Tenant notifies Landlord of any Permitted Transfer at least fifteen (15) days prior thereto and with respect to any other Permitted Transfer, Tenant notifies Landlord of such Transfer within fifteen (15) days thereafter; (y) except for a Permitted Transfer in which Tenant is the surviving entity, the assignment or subletting is by written agreement and a copy thereof is provided by Tenant to Landlord at least fifteen (15) days thereafter; and (z) any assignment or subletting shall not release Tenant from any of the terms, covenants, conditions or provisions of this Lease. Landlord specifically acknowledges that Tenant may convert its structure into any other type of structure as may be permitted by Laws, and in any such event, the conditions of clauses (x) through (z) shall not apply and Landlord’s consent shall not be required. The sale, issuance or transfer of Tenant’s stock or other equityholders interest shall not, under any circumstances, be deemed an assignment or other transfer of this Lease or the Premises.

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By way of example and without limitation, the parties agree it shall not be unreasonable for Landlord to withhold consent if, as reasonably determined by Landlord: (a) the proposed assignee or subtenant would use the Premises or Improvements for a purpose or in a manner which is not in strict conformity with all of the requirements of this Lease or (b) the business reputation or character of the proposed assignee or subtenant is not consistent with the operation of the Site as a first class office, science and technology park. Furthermore, notwithstanding anything in the Lease to the contrary, under no circumstances shall Tenant sublet all or any portion of the Premises or the Improvements to any party which is not a Vendor/Partner.

(b) Each sublease entered into by Tenant shall contain provisions pursuant to which the subtenant agrees that (a) the sublease is subject and subordinate to this Lease and all amendments and modifications and renewals of this Lease; (b) in the event any person, firm, corporation or other entity (including Landlord) acquires Tenant’s interest in the Premises, the subtenant shall, upon request, attorn to and become the tenant of such person, firm, corporation or other entity upon the same terms and conditions as are set forth in this Lease for the balance of the Term; (c) no such person, firm, corporation or other entity will be liable for the acts or omissions of Tenant as sublessor under the sublease; and (d) the subtenant will give Landlord notice and opportunity to cure any default by Tenant as landlord under the sublease, prior to exercising any remedies by reason of such default.

(c) No assignment of this Lease or sublease of the Premises shall release or relieve Tenant of its liabilities and obligations under this Lease. Each assignee of Tenant’s interest under this Lease shall assume and be deemed to have assumed this Lease and shall be and remain liable with Tenant for all payments and for the due performance of all terms, covenants and conditions herein contained on Tenant’s part to be observed and performed from and after the date of such assignment. No assignment shall be binding upon Landlord unless the assignee shall deliver to Landlord an instrument in form and substance satisfactory to Landlord containing a covenant of assumption by the assignee, but the failure or refusal of an assignee to execute and deliver the same shall not release assignee from its liability as set forth in this Section.

13. INSURANCE AND INDEMNITY.

13.1 Tenant’s Obligation. At all times during the Term of this Lease, Tenant, at its own cost and expense, shall maintain, with insurance companies duly licensed or authorized to do business in the State of Delaware, which are rated by A.M. Best “A” or better with a Financial Rating of at least “VIII”, the following insurance coverages and limits:

(a) Comprehensive General Liability Insurance. Tenant shall provide commercial general liability insurance with a Five Million Dollars ($5,000,000.00) per occurrence combined single limit for personal injury, bodily injury (including death) and property damage. Coverage should be written on ISO Form CG 00 01 12 07, or its equivalent, and must not include any exclusion for explosion, products/completed operations, or cross liability. Said coverage shall insure against any claims occurring in connection with or arising in any way out of the use and/or occupancy of the demised Premises by Tenant. The coverage afforded to additional insureds under Tenant’s policy shall be primary and non-contributory with any insurance carried by the Landlord. Defense costs shall be provided and shall be in addition to the limits required.

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(b) Property Insurance. Tenant shall insure all Improvements against loss or damage. Such insurance shall be effected on an “All Risks” basis in an amount sufficient at all times to cover the full repair, restoration or replacement cost of such real property (excluding foundations, and shall not be subject to any coinsurance provision. Unless this Lease is terminated following a casualty, all proceeds from such insurance as respects loss or damage shall be used to repair, restore and replace the Improvements. In the event that Tenant elects not to repair, restore or replace damaged property in accordance with Section 15 hereof and Tenant fails to perform its post-casualty obligations under Section 15 of the Lease, such proceeds shall be assigned to Landlord in an amount sufficient to complete Tenant’s post-casualty obligations as provided in Section 15 of this Lease.

(c) Environmental Liability Insurance. Tenant shall procure and maintain for the duration of this Lease insurance against claims for injuries to persons or damages to property and for clean-up which may arise from or in connection with Tenant and Tenant’s operations and interest in, on or about the Premises, excluding any claims arising solely from environmental conditions existing on the demised Premises site at the commencement of this Lease. Limit of insurance should not be less than $10,000,000 per loss providing coverage for:

(i) bodily injury, sickness, disease, mental anguish or shock sustained by any person, including death;

(ii) property damage including physical injury to or destruction of tangible property including the resulting loss of use thereof, clean up costs, and the loss of use of tangible property that has not been physically injured or destroyed, natural resource damages;

(iii) defense, including costs, charges and expenses incurred in the investigation;

(iv) Clean-up, both on- and off-site; and

(v) List the Lease and the Environmental Indemnity as insured contracts.

For losses that arise from the Tenant’s facility or operations, coverage shall apply to sudden and non-sudden pollution conditions including the discharge, dispersal, release or escape of smoke, vapors, soot, fumes, acids, alkalis, toxic chemicals, liquids or gases, waste materials or other irritants, contaminants or pollutants into or upon land, the atmosphere or any watercourse or body of water, which results in bodily injury, property damage or clean-up. Landlord acknowledges and agrees that the environmental insurance policy provided to and reviewed by Landlord prior to the Effective Date satisfies the requirements of the foregoing subparagraph (c).

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(d) Other Insurance Provisions. The insurance coverages required by this Lease each are to contain, or be endorsed to contain, the following provisions:

(i) Landlord, the University of Delaware, and the trustees, employees and agents of both are to be covered as additional insureds without liability for premiums or the acts or omissions of the named insureds. The coverage shall contain no special limitations on the scope of protection afforded to Landlord, the University of Delaware, and the trustees, employees and agents of both.

(ii) For any claims related to this Lease, the Tenant’s insurance coverage(s) shall be primary insurance as respects Landlord, the University of Delaware and the trustees, employees and agents of both. Any insurance or self-insurance maintained by Landlord, the University of Delaware, and the trustees, employees and agents of both shall be excess of the Tenant’s insurance and shall not contribute with it.

(iii) Each insurance policy required by this Lease shall be endorsed to state the coverage shall not be suspended, voided, or cancelled by either party except after thirty (30) days prior written notice by certified mail, return receipt requested, has been given to Landlord.

(iv) If any of the aforementioned insurance policies are written on a claims-made basis, the Tenant warrants that a) the policy retroactive date will not be later than the Effective Date, and b) continuous coverage will be maintained or an extended discovery period will be exercised for a period of two years beginning from the time the term of this Lease has ended.

(v) Neither Landlord’s failure to insist that any insurance documentation or evidence of payment be delivered, nor Landlord’s acceptance of any of the same shall relieve Tenant from any obligation under this Section of the Lease.

(vi) Certificates of insurance evidencing all coverage required herein shall be provided to Landlord at the commencement of this Lease and at least annually thereafter. All required certificates of insurance shall eliminate the wording ‘endeavor to’ and ‘but failure to mail such notice shall impose no obligation of liability of any kind upon the company, its agents or representatives’ from the cancellation provision. Certificates of insurance provided by Tenant to Landlord shall serve as adequate evidence of compliance by Tenant with the provisions of Paragraph 13, and all of its subparagraphs.

(vii) All property insurance policies required to be maintained hereunder shall include a waiver of subrogation in favor of Landlord and the University of Delaware.

(viii) Any deductibles mandated by the insurance required to be maintained hereunder shall be fully assumed by Tenant.

13.2 Landlord’s Indemnity. Landlord agrees to indemnify, defend and hold harmless Tenant and Tenant’s Agents during the Term against and from all claims, losses (which shall not be limited to the loss or restriction of use of the Premises), liabilities, costs, actual damages or

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expenses (including reasonable attorney’s, consultant’s and expert fees and expenses actually incurred) but excluding consequential damages, directly or indirectly arising out of or attributable to any injury to any person (including death) or damage to any property (“Losses”) which arise from Landlord’s acts, omissions, negligence, willful misconduct or from the failure of Landlord to keep, observe and perform any of the terms, covenants, conditions and provisions of this Lease to be kept, observed or performed by Landlord, unless the same is caused by the act or omission, negligent or intentional, of Tenant or Tenant’s Agents. The provisions of this Section 13.2 shall be in addition to, but not in limitation of, the Environmental Indemnity.

13.3 Tenant’s Indemnity. Subject to the Environmental Indemnity, Tenant covenants and agrees, at its sole cost and expense, to indemnify and save harmless Landlord, Landlord’s Agents, the University of Delaware, and any officer, director, trustee or member of Landlord and the University of Delaware from and against any and all Losses which arise from Tenant’s negligent acts, omissions, willful misconduct or from the failure of Tenant to keep, observe and perform any of the terms, covenants, conditions and provisions of this Lease to be kept, observed or performed by Tenant, unless the same is caused by the act or omission, negligent or intentional, of Landlord or Landlord’s Agents.

13.4 Scope of Indemnity. The scope and the extent of the respective obligations of Landlord and Tenant under this Section 13 shall be to the fullest extent permitted by Law, and also shall not be limited to the minimum dollar amounts of commercial general liability insurance to be maintained by Landlord and Tenant, respectively, under this Lease. The indemnification, defense and hold harmless provisions of this Section 13 shall survive the expiration of the Term. Notwithstanding the foregoing, neither party shall be liable to the other for consequential damages.

13.5 Waiver of Subrogation. Notwithstanding anything to the contrary in this Lease (but subject to the provisions of the Environmental Indemnity), as to any loss or damage which occurs upon the property of a party hereto, such party hereby releases the other from any and all liability for such loss or damage even if such loss or damage shall be brought about by the fault or negligence of such other party, or the agents, servants or employees of such other party; provided, however, that this release shall be effective only with respect to loss or damage that is caused by or results from a risk that is actually insured against or which is required to be insured against under the terms of this Lease or that would normally be covered by all risk property insurance.

13. CONDEMNATION.

13.1 Taking. If the entire Premises shall be acquired by a Taking and such Taking is not deemed “temporary” (as that term is hereinafter defined), the rights and obligations of the parties hereunder (except rights and obligations arising prior to such Taking and except rights and obligations provided in this Section) shall terminate as of the date of such Taking. The parties hereby agree to look solely to the condemnation award for compensation in the proportions hereinafter provided for their respective interests in the Premises, and there shall be a full abatement in the payment of Rent and other sums payable by Tenant under the provisions of this Lease occurring after the date of the Taking.

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13.2 Partial Taking.

(a) If there shall be a Taking of any portion (but less than all) of the Improvements or a Taking of the Premises such that access is denied or substantially impaired or a portion of the any parking areas serving the Premises (whether located within the Premises or the Common Areas and Facilities) is taken so that there are less than the lawfully required number of spaces and Tenant is unable to replace the spaces so taken on another part of the Site (at Landlord’s sole and absolute discretion) or such a substantial portion of the Improvements (but less than all) is Taken such that it shall no longer be reasonably economical or practical because of such Taking for Tenant to continue its business on the Premises, in its reasonable judgment, then Tenant shall have the right, at its option, to terminate this Lease by giving written notice to Landlord within ninety (90) days after Tenant’s receipt of notice of such Taking and the condemnation award shall be equitably apportioned as set forth in Section 14.4 below.

(b) If Tenant does not elect to terminate this Lease, Rent shall be reduced, as of the date of Taking, in the same proportion that the ground area of the Site so taken compares to the total land area of the Site immediately prior to such Taking and Tenant shall restore the Improvements to the extent of available condemnation proceeds to a viable economic unit.

13.3 Temporary Taking. If there is a temporary Taking (90 days or less) of all or part of the right to possession and use of the Premises, Tenant shall be entitled to that portion of the award, to the extent that it relates to a period within the Term, and there shall be no abatement or reduction in Rent.

13.4 Condemnation Award. In the event of any Taking, Landlord shall be entitled to receive any award allocated to Landlord’s fee interest in the Site and its reversionary interest in the Improvements, and Tenant shall be entitled to receive any award allocated to the Improvements, net of the reversionary interest of Landlord. If the condemning authority does not make separate awards and the parties are unable to agree as to the amounts to be allocated to the respective interests of Landlord and Tenant hereunder, then each party shall select an Appraiser and each Appraiser shall separately determine the amount of the condemnation award allocable to the respective interests of Landlord and Tenant. If the awards each Appraiser allocates to the parties: (i) are within 10% of each other, the awards shall be averaged and such average shall be the final allocation of the award; or (ii) are not within 10% of each other, the two Appraisers shall then select a third Appraiser who shall independently allocate the award between Landlord and Tenant, which must be either Landlord’s Appraiser’s allocation or Tenant’s Appraiser’s allocation as submitted, but no other amount or compromise between the two.

14. DAMAGE TO OR DESTRUCTION OF PREMISES.

(a) Improvements Occupied by Tenant. In the event of total or partial destruction of the Improvements occupied by Tenant by fire or other casualty, Tenant agrees to promptly and diligently assert and pursue its lawful claim for insurance proceeds and promptly, after receipt of insurance proceeds (except in the case of steps reasonably necessary to secure the Premises safely, in which case Tenant’s duty take such steps shall not await the receipt of

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insurance proceeds), restore and repair the Improvements at Tenant’s expense; provided, however, that in the event the Improvements are so destroyed that they cannot be repaired or rebuilt within one hundred eighty (180) days after the date of the damage or destruction, then Tenant may, upon thirty (30) days written notice to Landlord, which election must be made within one hundred and twenty (120) days of the casualty, terminate and cancel this Lease and retain all proceeds of Tenant’s property insurance, provided, however, Tenant shall promptly (but in no event later than one-hundred (180) days from the date of such termination) remove all above grade structures and improvements (damaged or not) such as to bring the building(s) down to the slab, and the entire Premises shall be brought into compliance with all applicable Laws subject to any variances and/or grandfathered status. This obligation shall survive termination of this Lease. Thereafter, neither party shall have any further obligation hereunder except for those obligations that by their terms survive.

(b) Improvements Occupied by Vendor/Partner. In the event of total or partial destruction of a Vendor/Partner’s Improvements by fire or other casualty, Tenant agrees to promptly and diligently assert and pursue its lawful claim for insurance proceeds and promptly, after receipt of insurance proceeds (except in the case of steps reasonably necessary to secure the Premises safely, in which case Tenant’s duty take such steps shall not await the receipt of insurance proceeds), restore and repair the damaged Improvements at Tenant’s expense or Tenant shall promptly (but in no event later than one-hundred (180) days from the date of such casualty) commence to remove and diligently pursue the removal of all above grade structures and improvements (damaged or not) such as to bring the building(s) down to the slab, and the entire Premises shall be brought into compliance with all applicable Laws subject to any variances and/or grandfathered status,. This obligation shall survive expiration of this Lease.

15. DEFAULTS.

15.1 Default by Tenant. Any other provisions of this Lease to the contrary notwithstanding, it shall be deemed to be an “Event of Default” under this Lease if: (a) Tenant fails to pay any installment of Rent which is due and payable hereunder by Tenant and such failure continues for a period of thirty (30) after Tenant’s receipt of notice thereof from Landlord, or (b) Tenant fails to keep, observe or perform any other term, covenant or condition of this Lease to be kept, observed or performed by Tenant and such failure continues after Tenant’s receipt of notice of default thereof from Landlord for more than thirty (30) days, provided that if the same cannot be cured within thirty (30) days, then within such additional time, if any, as is reasonably necessary to complete such cure, provided that Tenant has commenced such cure within the initial thirty (30) day period and diligently pursues such cure to completion, or (c) Tenant and/or Bloom Energy Corporation shall (i) voluntarily be adjudicated a bankrupt or insolvent; (ii) consent to the appointment of a receiver or trustee for itself or for any of the Premises or Improvements; (iii) file a petition in bankruptcy, or a petition or answer seeking reorganization under the Federal Bankruptcy Code, or a petition seeking relief under any other debtor relief law; or (iv) file a general assignment for the benefit of creditors; or (d) a court shall enter an order, judgment, or decree (i) appointing, with or without the voluntary consent of Tenant, a receiver or trustee for Tenant and/or Bloom Energy Corporation or for the Premises or

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Improvements; or (ii) adjudicating Tenant and/or Bloom Energy Corporation bankrupt or approving a petition filed against Tenant and/or Bloom Energy Corporation which seeks reorganization of Tenant and/or Bloom Energy Corporation under the Federal Bankruptcy Code or seeks relief under any judgment or debtor relief law, and such order, judgment, or decree shall remain in force, undischarged or unstayed, ninety (90) days after it is entered or (e) Tenant abandons the Premises. For purposes of this Lease, abandonment shall be deemed to have occurred if Tenant ceases business operations at the Premises for a period of twelve (12) consecutive months or otherwise after vacating the Premises unequivocally evidences an intention to abandon indefinitely the Project.

15.2 Landlord’s Remedies for Tenant’s Default. If an Event of Default by Tenant shall have occurred and is continuing, automatically, and without the requirement of any notice or demand, during the Initial Term, the Base Rent due and payable hereunder shall immediately as of the date of such Event of Default convert to the Fair Market Rent determined in accordance with Section 2.3 and Landlord may, at its option:

(a) Terminate this Lease by giving fifteen (15) additional days’ prior notice thereof to Tenant and, upon the expiration of such notice period, this Lease shall terminate with the same force and effect as though the date of such notice were the Expiration Date, and all rights of Tenant hereunder shall expire and terminate, but Tenant shall remain liable as herein expressly provided;

(b) Exercise any other rights and remedies available to Landlord at law or in equity;

(c) During the Extension Term (and only during the Extension Term) after terminating this Lease, as Landlord may elect, Landlord may re-enter and repossess the Premises, or any part thereof, and lease the Premises to any other person upon such terms as Landlord shall deem reasonable, for a term within or beyond the Term. Any such reletting prior to termination shall be for the account of Tenant, and Tenant shall remain liable for (a) the excess, if any of (i) all Basic Rent, Additional Rent and other sums which would be payable under this Lease by Tenant in the absence of such expiration, termination or repossession, over (ii) the net proceeds, if any, of any reletting effected for the account of Tenant, determined by deducting from the gross proceeds of any such reletting all expenses incurred in connection with such reletting of the Premises, as determined by Landlord, including, without limitation, the following: (A) repossession costs; (B) attorneys’ fees and expenses; (C) brokers’ commissions and advertising costs; (D) costs of alterations, improvements, repairs and replacements; and (E) improvement allowances, free rent, and other concessions; and, (b) all other costs and expenses, direct or indirect, incurred as a result of Tenant’s breach of this Lease. If the Premises are sublet by Tenant to others at the time of any default, Landlord may, as Tenant’s agent, collect rents due from any subtenant and apply such rents to the Basic Rent, Additional Rent and other amounts due hereunder without in any way affecting Tenant’s obligations to Landlord. Such agency, being given for security, is hereby declared to be irrevocable;

(d) All remedies available to Landlord hereunder as a result of the occurrence of an Event of Default by Tenant shall be cumulative and concurrent, but may only be exercised by Landlord after Tenant has received all required notices from Landlord and all applicable periods have expired without a cure having been effectuated by Tenant.

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(e) The failure of Landlord to insist in any one or more cases upon the strict performance of any of the terms, covenants, conditions, provisions or agreements of this Lease or to exercise any right, privilege, option or remedy herein contained shall not be construed as a waiver or a relinquishment for the future of any such term, covenant, condition, provision, agreement, right, privilege, option or remedy. A receipt and acceptance by Landlord of Basic Rent or Additional Rent, or the acceptance of performance of anything required by this Lease to be performed, with knowledge of the breach of any term, covenant, condition, provision or agreement of this Lease, shall not be deemed a waiver of such breach, nor shall any such acceptance of Basic Rent or Additional Rent in a lesser amount than is herein provided for (regardless of any endorsement on any check, or any statement in any letter accompanying any payment of rent) operate or be construed either as an accord and satisfaction or in any manner other than as payment on account of the earliest Basic Rent and/or Additional Rent then unpaid by Tenant. No waiver by Landlord of any term, covenant, condition, provision or agreement of this Lease shall be deemed to have been made unless expressed in writing and signed by Landlord. No waiver by Landlord of any breach by Tenant of any obligations, agreements or covenants in this Lease shall be a waiver of any subsequent breach or of any obligation, agreement or covenant, nor shall any forbearance by Landlord to seek a remedy for any breach by Tenant be a waiver of any rights and remedies with respect to such or any subsequent breach.

15.3 Landlord’s Default. Landlord’s failure to perform or observe any of its obligations under this Lease after a period of thirty (30) days or such additional time, if any, as may be reasonably necessary to cure such failure after receiving notice from the Tenant, shall constitute a Landlord Default, unless Landlord shall, within such period, promptly commence and diligently prosecute to completion the curing of such failure. Such notice shall give reasonable detail as to the nature and extent of the failure and identify the Lease provisions containing the obligations. Upon Landlord’s Default, Tenant may pursue any remedies given in this Lease or available at law or in equity.

15.4 Self-Help. If either party defaults (“Defaulting Party”) and fails to timely cure as provided herein, the other party (“Non-defaulting Party”) may, without being obligated and without waiving the default, cure the default. The Non-defaulting Party may enter the Premises or Site to cure the default. The Defaulting Party shall pay the Non-defaulting Party, upon demand (accompanied by an invoice itemizing in detail the work done and the charges therefor), all reasonable costs, expenses and disbursements incurred by the Non-defaulting Party to cure the default.

16. QUIET ENJOYMENT. Upon payment by Tenant of the Rent reserved and provided to be paid by Tenant hereunder and upon the keeping, observance and performance by Tenant of all of the terms, covenants, conditions and provisions of this Lease on Tenant’s part to be kept, observed and performed, Tenant shall peaceably and quietly hold and enjoy the Premises for the Term without hindrance or interruption by Landlord or by any person or persons lawfully claiming or holding by, through or under Landlord.

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17. ESTOPPEL CERTIFICATES; SUBORDINATION.

17.1 Subordination of Lease; Attornment. This Lease shall not become subject or subordinate to any lease, right, claim, mortgage or deed of trust hereafter placed against or affecting the Premises or any portion or portions thereof unless and until the holder of any right or claim or any Mortgagee shall have executed, acknowledged and delivered to Tenant a recordable, written instrument in form and content reasonably acceptable to Tenant (the “Non-Disturbance Agreement”) pursuant to which any such holder on behalf of itself and its respective heirs, personal representatives, successors and assigns (including any purchaser under foreclosure proceedings or grantee under a deed in lieu of foreclosure (the “Purchaser”)) shall recognize Tenant’s interest in this Lease and be bound by this Lease as if it were the original Landlord hereunder for the balance of the Term. Within sixty (60) days after the Effective Date, Landlord shall obtain a Non-Disturbance Agreement reasonably acceptable to Tenant (which may neither expand any of Tenant’s obligations, nor diminish, detract from, modify or abrogate any of Tenant’s rights, under this Lease) from any Mortgagee or the holder of any existing lease, right or claim affecting the Premises, if Landlord has not already obtained such Non-Disturbance Agreement prior to the execution and delivery hereof.

17.2 Estoppel Certificates. Landlord and Tenant agree within twenty (20) days after receipt of request therefor, but not more often than once in any twelve (12) month period, to execute and deliver to the other a statement, addressed to such party, in writing, certifying: (i) that this Lease is in full force and effect and unmodified or, if modified, stating the date of modification and the terms thereof; (ii) the Effective Date and the date of expiration; (iii) that the Rent is paid currently without any offset or defense thereto, or stating any offsets or defenses claimed by Tenant or Landlord, as the case may be, and known at the time of such statement; (iv) the amount of Rent, if any, paid in advance; and (v) that, to the actual knowledge of the certifying party, there are no uncured Events of Default by Tenant or defaults by Landlord, as the case may be, or stating those claimed by either Tenant or Landlord provided that, in fact, such Events of Default or defaults are ascertainable.

18. REGULATED SUBSTANCES.

18.1 Environmental Indemnity. Contemporaneously with the execution and delivery of this Lease by Landlord, Landlord agrees to execute and deliver the Environmental Indemnity in favor of Tenant.

18.2 Obligations in the Event of Contamination. Subject to the terms of the Environmental Indemnity, in the event of Contamination on, under, or about the Premises by Tenant or Tenant’s Agents, Tenant shall immediately notify Landlord and take any immediate actions required for containment of the Contamination, and prepare and implement a plan for the clean-up or remediation of the Contamination in compliance with applicable Environmental Law, any such plan to be subject to Landlord’s prior consent, which may be withheld in its reasonable discretion. Notwithstanding the foregoing, it shall be deemed unreasonable for Landlord to withhold its consent to any such plan if such plan meets the requirements of applicable Environmental Law.

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18.3 Indemnification by Tenant. Subject to the terms of the Environmental Indemnity, Tenant covenants and agrees to indemnify, protect and save Landlord harmless against and from any and all damages and liabilities of any kind or of any nature whatsoever (including, without limitation, reasonable attorneys’ and experts’ fees and disbursements), known or unknown, foreseen or unforeseen, which may at any time be imposed upon, incurred by or asserted or awarded against Landlord or the Premises or any portion thereof and arising from or out of any Regulated Substances on, in, under or affecting all or any portion of the Premises, introduced by, or on behalf of Tenant or Tenant’s Agents. This indemnity shall survive the expiration or earlier termination of this Lease.

19. LIABILITY OF LANDLORD. Landlord shall not have any personal liability with respect to any of the covenants, agreements, or other provisions of this Lease. Tenant shall look solely to the interest of Landlord in the Site and the rents, issues and profits therefrom for the satisfaction of its remedies or any other liabilities of Landlord arising under this Lease.

20. LANDLORD WARRANTY OF TITLE. Landlord hereby warrants, represents and covenants to Tenant that: (a) Landlord is the sole owner in fee simple absolute of the Premises; and (b) Landlord has good and marketable fee simple title to the Premises free and clear of all monetary liens and encumbrances except taxes not yet due and payable.

21. MUTUAL REPRESENTATIONS AND WARRANTIES. Landlord, with respect to all of the following as they relate to Landlord, and Tenant as they relate to Tenant, hereby certify to each other that the following representations and warranties are true and correct on the date hereof, and shall be true and correct on the Effective Date:

21.1 Power and Authority. Landlord and Tenant each have the authority and power to enter into this Lease and to consummate the transaction provided for herein. This Lease and all other documents executed and delivered by Landlord and Tenant constitute legal, valid, binding and enforceable obligations of Landlord and Tenant, and there are no claims or defenses, personal or otherwise, or offsets whatsoever to the enforceability or validity of this Lease.

21.2 No Violations and Actions. The execution, delivery and performance by Landlord or Tenant of its obligations under this Lease will not conflict with or result in a breach of any law, governmental rule, regulations, judgment, decree or order by which Landlord or Tenant is bound, or by any of the provisions of any contract to which Landlord or Tenant is a party or by which Landlord or Tenant is bound or, by Landlord’s partnership agreement, or Tenant’s operating agreement. There is no action, suit, proceeding or investigation pending, or to Landlord’s or Tenant’s knowledge threatened, before any agency, court or other governmental authority which relates to the Property or the use thereof.

22. NOTICES. All notices, statements, demands, requests, consents, communications and certificates to Landlord must be in writing and given by certified or registered mail, return receipt requested, postage prepaid, or by nationally-recognized overnight courier service, addressed to Landlord at the address set forth in the Schedule of Terms (and regardless of whether or not the provisions of this Lease specifically indicate that a notice shall be in writing). All notices, statements, demands, requests, consents, communications and certificates by

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Landlord to Tenant must be in writing and given by certified or registered mail, return receipt requested, postage prepaid, or by nationally-recognized overnight courier service, addressed to Tenant at the address set forth in the Schedule of Terms (and regardless of whether or not the provisions of this Lease specifically indicate that a notice shall be in writing). Any such notices, statements, demands, requests, consents, communications, or certificates may also be given to such other parties or addresses as Landlord or Tenant may designate in writing to the other from time to time in the manner prescribed above and in all cases shall be deemed given on the date the same is mailed or delivered in accordance with the provisions of this Section.

23. RECORDING. Landlord and Tenant agree to execute a memorandum of lease in the form attached hereto as Exhibit “D” containing the names and addresses of the parties; the description of the Site; the Term of this Lease including the Effective Date, and the termination date; a description of any extension options; and such other provisions as either party may reasonably require. Tenant shall be responsible for all costs and expenses in connection with the recordation of such memorandum. Upon the termination of this Lease, Tenant shall execute and deliver to Landlord an instrument in recordable form releasing and quitclaiming to Landlord all right, title, and interest of Tenant in and to the Premises arising from this Lease or otherwise, all without cost or expense to Landlord.

24. ATTORNEY’S FEES. If either Landlord or Tenant shall institute any action or proceeding against the other relating to any of the terms, covenants, conditions or provisions of this Lease, or there occurs any Event of Default by Tenant or default by Landlord, the unsuccessful party in such action or proceeding shall reimburse the successful party for reasonable attorney’s fees and other costs and expenses incurred therein by the successful party, including fees, costs and expenses incurred in any appellate proceeding.

25. NO WAIVER. No failure by Landlord to insist upon the performance of any term, covenant, or condition of this Lease or to exercise any right or remedy consequent upon an Event of Default hereunder, and no acceptance of full or partial payment of Annual Rent or Additional Rent during the continuance of an Event of Default shall constitute a waiver of any such Event of Default or of such term, covenant, or condition. No waiver of an Event of Default shall affect or alter this Lease, but each and every term, covenant, and condition of this Lease shall continue in full force and effect with respect to any other then existing or subsequent Event of Default hereunder.

26. APPLICABLE LAW; CONSTRUCTION OF LANGUAGE OF LEASE. This Lease is made pursuant to, and shall be construed and enforced in accordance with the laws of the State of Delaware. All provisions of this Lease shall be construed to be “conditions” and “covenants” as though language specifically expressing or imposing covenants and conditions were used in each separate provision of this Lease.

27. PARTIES BOUND. All rights and liabilities given to, or imposed upon, the parties to this Lease shall also extend to and bind their several and respective heirs, personal representatives, successors and assigns.

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28. BROKERS. The parties hereto represent and warrant to each other that no person is entitled to a brokerage commission, finder’s fee, or other similar form of compensation in connection with the execution of this Lease. Each party agrees to hold harmless the other for any action or claim by a person alleging entitlement to such a fee and claiming through that party.

29. TABLE OF CONTENTS; CAPTIONS. The Table of Contents and the captions appearing in this Lease are inserted only as a matter of convenience and do not define, limit, construe, or describe the scope or intent of the Sections of this Lease nor in any way affect this Lease.

30. CALCULATION OF TIME. In computing any period of time prescribed or allowed by any provision of this Lease, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, Sunday, or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, Sunday, or legal holiday. Unless otherwise provided herein, all notice and other periods expire as of 5:00 p.m. (local time in New Castle County, Delaware) on the last day of the notice or other periods.

31. SEVERABILITY. If the application of any term or provision of this Lease whether in whole or in part is held invalid or unenforceable in general or in any instance, the remainder of this Lease shall not be affected by such holding and shall be fully valid and enforceable.

32. COUNTERPARTS; ELECTRONIC DELIVERY. This Lease may be executed in any number of counterparts, each of which shall be an original, and such counterparts together shall constitute one and the same instrument. The parties hereto agree that a facsimile or similar electronic transmission of an executed counterpart of this Lease shall have the same binding effect on the signatory as an executed and delivered original thereof. The parties hereto further agree, for confirmatory purposes only, to exchange copies of executed counterpart originals promptly after the aforesaid facsimile (or similar electronic) transmissions so that each party may have at least one (1) fully executed original hereof.

33. TIME OF THE ESSENCE. Time is of the essence in all provisions of this Lease to be performed by or on behalf of the parties hereto.

34. REASONABLENESS. Whenever the terms, covenants, conditions and provisions of this Lease entitle Landlord and/or Tenant to exercise their respective opinions, or to give their respective approvals or consents, such opinions shall be reasonable and such approvals and consents shall not be unreasonably withheld, conditioned or delayed, unless otherwise specifically set forth herein, notwithstanding that in some, but not all, instances a reasonableness standard is referenced.

35. FORCE MAJEURE. If either Landlord or Tenant shall be delayed or hindered in or prevented from the performance of any act required hereunder by reason of strikes, lockouts, labor troubles, inability to procure materials, weather, failure of power, restrictive laws, riots, insurrection, war or other reasons of a like nature not the fault of, or beyond the reasonable control of, the party delayed in performing work or doing acts required under the terms,

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covenants, conditions or provisions of this Lease, then performance of such act shall be excused for the period of the delay and the period for the performance of any such act shall be extended for a period equivalent to the period of such delay; provided, however, that this Section shall not apply to any payments of money to be made by either Landlord or Tenant hereunder.

36. LEASEHOLD MORTGAGEE PROVISIONS.

36.1 Leasehold Mortgages. Tenant shall have the unrestricted right to mortgage its interest in this Lease, the Improvements or any of Tenant’s property located at the Site.

36.2 Notice of Leasehold Mortgage. No Leasehold Mortgagee shall have the rights and benefits mentioned in this Section 36 until the name and address of the Leasehold Mortgagee and a copy of the Leasehold Mortgage have been delivered to Landlord pursuant to the notice provisions of this Lease. Landlord shall execute and deliver such reasonable consents, amendments, instruments and agreement as may be requested by and Leasehold Mortgagee in connection with its Leasehold Mortgage or any indebtedness secured hereby, provided, however, Landlord shall not be required to materially alter any term or provision of this Lease, incur any liability, or otherwise deviate from its intended development and operation of the Site as an office, science and technology campus.

36.3 Provisions for Benefit of Leasehold Mortgagee. So long as any Leasehold Mortgage remains unsatisfied of record, the following provisions shall apply:

(a) Landlord, upon serving Tenant with any notice given under this Lease, shall also serve a copy of such notice upon the Leasehold Mortgagee in the manner for giving notices pursuant to this Lease at the address furnished to Landlord by the Leasehold Mortgagee pursuant to Section 36.2 above, and no notice by Landlord to Tenant under this Lease shall be deemed to have been duly given unless a copy thereof has been so served upon the Leasehold Mortgagee.

(b) Upon the occurrence of an Event of Default, the Leasehold Mortgagee shall have the right, but not the obligation, to cure such Event of Default or cause such Event of Default to be cured within the period and otherwise as herein provided, and Landlord shall accept such performance by or at the instigation of the Leasehold Mortgagee as if the same had been made by Tenant.

(c) Notwithstanding anything to the contrary contained herein, upon the occurrence of an Event of Default, other than an Event of Default involving the payment of money, Landlord shall not terminate this Lease without first giving the Leasehold Mortgagee a reasonable time after notice of such Event of Default within which either to obtain possession of the Premises through Tenant’s leasehold interest thereon (including possession by a receiver), or to institute, prosecute and complete foreclosure proceedings or otherwise acquire Tenant’s interest in the Lease; provided, however, that (A) the Leasehold Mortgagee shall not be obligated to continue such possession or to continue such foreclosure proceedings after such Event of Default has been cured; (B) nothing herein contained shall preclude Landlord, subject to the provisions of this Section, from exercising any rights or remedies under this Lease with respect

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to any other Event of Default by Tenant during the pendency of such foreclosure proceedings (subject to compliance with the provisions of this Section 36 in the case of such other Event of Default); and (C) the Leasehold Mortgagee agrees with Landlord in writing to comply during such period of forbearance by Landlord, with such of the terms, conditions and covenants of this Lease which are susceptible of being complied with by the Leasehold Mortgagee. Any Event of Default not susceptible of being cured by the Leasehold Mortgagee shall be deemed to have been waived by Landlord upon completion of such foreclosure proceedings or upon such acquisition of Tenant’s interest in this Lease, except that any Event of Default which is susceptible of being cured after such completion or acquisition shall then be cured with reasonable diligence by the Leasehold Mortgagee. Landlord agrees that the Leasehold Mortgagee, its designee, or any other purchaser in foreclosure proceedings may become the owner of Tenant’s interest in this Lease through such foreclosure proceedings or by assignment of this Lease in lieu of foreclosure.

(d) If this Lease is terminated prior to the expiration of the Term for any reason other than condemnation under Section 13, including, without limitation, the bankruptcy or insolvency of Tenant and the subsequent rejection of this Lease by Tenant or a trustee thereof in such bankruptcy or insolvency proceeding, Landlord shall give notice thereof to the Leasehold Mortgagee and the Leasehold Mortgagee (or its designee) shall have the option by giving notice to Landlord within thirty (30) days after the date of Landlord’s notice to obtain a new lease from Landlord (“New Lease”), in accordance with the following terms and conditions (provided, however, that if there is a first-lien Leasehold Mortgage and a second-lien Leasehold Mortgage as of such date, only the first-lien Leasehold Mortgagee shall be entitled to the benefits of this Section unless the first-lien Leasehold Mortgagee and the second-lien Leasehold Mortgagee have given prior written instructions to Landlord that such benefits will be afforded only to the second Leasehold Mortgagee):

(i) The New Lease, if any is agreed to, shall be effective as of the date of termination of this Lease, for the remainder of the term of this Lease and at the Rent and upon all the terms, covenants and conditions hereof, including, without limitation, any remaining rights of renewal provided, however, in any and all events, Base Rent shall at all times be equal to Fair Market Rent, regardless if during the Initial Term the Event of Default has been cured;

(ii) Such New Lease may require the tenant thereunder to cure any Event of Defaults of Tenant under this Lease which are susceptible of being cured by the new tenant;

(iii) Upon the execution of such New Lease, the tenant named therein shall pay any and all sums which would at the time of the execution thereof be due under this Lease but for such termination and shall pay all expenses, including attorneys’ fees, incurred by Landlord in connection with such termination, the recovery of possession of the Premises and the preparation of such New Lease; the period from the date of termination of this Lease to the date of execution of such New Lease; and all subleases shall be assigned without recourse by Landlord, to the extent Landlord legally may do so, to the tenant under such New Lease and all monies on deposit with Landlord which Tenant would have been entitled to but for the termination of this Lease shall be delivered to such new tenant.

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(iv) Any notice which the Leasehold Mortgagee desires or is required to give to Landlord shall be sent to Landlord in accordance with the provisions of Section 23 hereof.

36.4 Assignment by Leasehold Mortgagee. If the Leasehold Mortgagee acquires title to Tenant’s interest in this Lease, by foreclosure or assignment in lieu thereof or under a New Lease pursuant to this Section 36, such Leasehold Mortgagee may assign this Lease (or such New Lease, as applicable), and shall thereafter be released from all liability under this Lease (or such New Lease, as applicable), from and after the date of such assignment.

36.5 Insurance. Tenant shall request and use commercially reasonable efforts (but not including the payment of any money, except for a nominal amount) to have its Leasehold Mortgagee, as part of its Mortgage, to- provide that (i) anything in the Leasehold Mortgage to the contrary, it will make available to Tenant sufficient casualty proceeds from Tenant’s insurance such as to permit the Tenant to comply with its post-casualty obligation regarding the Improvements and Premises as provided in Section 15 hereof and (ii) at Landlord’s request, any insurance proceeds for such post-casualty obligation, shall be paid by check payable to both Landlord and Tenant.

37. LANDLORD’S WAIVER. Landlord hereby waives any right it may have to distrain upon or secure a lien against any of Tenant’s property, goods or fixtures for any reason whatsoever and shall execute any consent, waiver or agreement reasonably required by any lessor of Tenant’s property or the holders of any security interest in Tenant’s property; provided, however, that the holder of any such security interest or the lessor under any such lease agrees in writing to repair any damage which may be done to the Premises as the result of the removal of such trade fixtures, equipment, machinery or other goods and effects.

38. [RESERVED]

39. RIGHT OF FIRST REFUSAL. From and after the date hereof and during the Term, Tenant shall have the right of first refusal and Landlord shall not sell, transfer or otherwise dispose of or convey all or part of Landlord’s interest in the Premises to any third party until and unless Landlord shall have obtained a bona fide offer therefor (the “Offer”), delivered written notice to Tenant, which notice shall contain the name of the offeror, the address of the offeror, all of the terms and conditions of the Offer, a true and accurate copy of the Offer and offered to sell, transfer or otherwise dispose of such interest to Tenant at the same price and, except as hereafter provided, upon the same terms and conditions contained in the Offer and Tenant has not elected to exercise its right of first refusal provided herein.

(a) If Tenant shall either deliver written notice of rejection of the Offer to Landlord or fail to deliver written notice of acceptance of the Offer within thirty (30) days after the date of receipt of Landlord’s notice, Landlord’s interest in the Premises may, during the one hundred eighty (180) days thereafter, be sold, transferred or otherwise disposed of to the original offeror at the same price and upon the same terms and conditions contained in the Offer as disclosed in writing to Tenant.

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(b) In the event Tenant rejects the Offer or fails to accept the Offer, this Lease and all of its terms and conditions (including this right of first refusal) shall nevertheless remain in full force and effect and Landlord and any purchaser or purchasers of the Premises shall be bound thereby.

(c) Failure of Tenant to exercise this right of first refusal on one or more occasions shall not affect Tenant’s right to exercise it on any subsequent occasion. Any sale or transfer of the Premises, or any part thereof, other than in strict compliance with the terms of this Section shall be null and void and of no effect as to Tenant, and Tenant shall be entitled to purchase the Premises from the purchaser upon the same terms and conditions and at the same price specified in the Offer, provided Tenant notifies Landlord of its election thirty (30) days after receipt of notice that complies with the requirements hereof. Payment of rental to such purchaser or otherwise treating such purchaser as Landlord shall not be deemed to be a waiver of any right of first refusal or any other right or privilege of Tenant and shall not create an estoppel with respect thereto.

(d) Any sale or transfer of Landlord’s interest in the Premises, or any part thereof shall be expressly made subject to all of the terms, covenants and conditions of this Lease. In the event the Offer provides for the sale and purchase of Landlord’s interest in the Premises and other property, Tenant shall only be required to purchase all the Premises in the event it desires to exercise its right of first refusal hereunder.

(e) In the event Tenant exercises its right of first refusal then, notwithstanding the terms of the Offer (i) Landlord shall convey title by warranty deed approved by Tenant and the title company; (ii) title to the Premises shall be free and clear of any liens and encumbrances except the lien for current taxes which are not delinquent at the time of closing and such other exceptions to title as existed on the date hereof and/or were approved by Tenant thereafter; and (iii) title to the Premises shall otherwise comply with the terms of this Lease as they pertain to condition of title. Upon such election by Tenant, Landlord and Tenant agree to act in good faith to consummate a purchase agreement for the property described in the Offer incorporating the express terms of the Offer and other customary terms and provisions for similar transactions of similar industrial property located in the same geographic area as the Premises.

(f) The Right of First Refusal shall not apply to Landlord’s conveying the Premises to any corporation, limited liability company or partnership which shall be an affiliate, subsidiary, parent or successor of Landlord or its members. Upon such conveyance, Landlord shall thereafter be released from liability under this Lease, from and after the date of such conveyance, except for any environmental liabilities, which would survive any such conveyance by Landlord.

40. [RESERVED].

41. LEASE GUARANTY. Contemporaneously with the execution of this Lease, Landlord shall cause The University of Delaware to deliver to Tenant a guaranty of Landlord’s obligations under this Lease in substantially the form attached hereto as Exhibit “H”

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42. ENTIRE AGREEMENT. This Lease contains the entire agreement between the parties and cannot be changed or modified except by a written instrument subsequently executed by the parties hereto.

43. WAIVER OF TRIAL BY JURY. THE PARTIES EACH HEREBY AGREE NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY JURY, AND WAIVE ANY RIGHT TO TRIAL BY JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER EXIST WITH REGARD TO THIS LEASE, OR ANY CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING IN CONNECTION THEREWITH. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND VOLUNTARILY BY LANDLORD AND TENANT AND IS INTENDED TO ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO TRIAL BY JURY WOULD OTHERWISE ACCRUE.

44. VENUE. ANY LEGAL SUIT, ACTION OR PROCEEDING AGAINST LANDLORD OR TENANT ARISING OUT OF OR RELATING TO THIS LEASE MAY BE INSTITUTED IN ANY FEDERAL OR STATE COURT IN NEW CASTLE COUNTY, DELAWARE, AND EACH PARTY WAIVES ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE BASED ON VENUE AND/OR FORUM NON-CONVENIENS OF ANY SUCH SUIT, ACTION OR PROCEEDING, AND EACH PARTY HERETO IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY SUCH COURT IN ANY SUIT, ACTION OR PROCEEDING.

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IN WITNESS WHEREOF, Landlord and Tenant have caused this Lease to be executed, under seal, as of the date and year first above written.

LANDLORD:
1743 HOLDINGS, LLC, a Delaware limited liability company
By:	(Seal)
	Name:
	Title:

TENANT:
BLOOM ENERGY CORPORATION, a Delaware corporation
By:	(Seal)
	Name:
	Title:

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EXHIBIT A

Legal Description

See Attached

ALL that certain tract or parcel of land, including the improvements located thereon, situate in the City of Newark, the County of New Castle, and the State of Delaware being more particularly described as follows:

BEGINNING at a capped rebar set on the southwesterly side of Delaware Route No. 896, also known as South College Avenue, at varying widths, a common corner of the property herein being described and other lands of CHRYSLER LLC, Parts Division, and being further located from the intersection formed by the Westerly side of Delaware Route No. 896, extended into the southerly side of the lands of Pennsylvania Lines, L.L.C. by the following five (5) courses and distances: 1) South 05° 27’ 37” East, 429.70’ to a point; 2) South 08° 39’ 13” West, 253.54’ to a point of curvature; 3) by a curve to the left having a radius of 320.00’, an arc length of 72.61’ to a point of tangency; 4) South 04° 20’ 47” East, 212.71’ to a point; and 5) South 21° 30’ 57” East, 20.01’; thence from the point and place of Beginning, along the southwesterly and westerly sides of Delaware Route No. 896, by the following seven (7) courses and distances: 1) South 21° 30’ 57” East, 70.12’ to a point; 2) by a curve to the right having a radius of 40.00’, an arc length of 53.40’ (53.37’ record) (chord equivalent; South 43° 45’ 57” East, 49.52’) to a capped rebar set; 3) South 05° 27’ 37” East, 9.96’ to a capped rebar set;

4) South 12° 53’ 30” East 115.97’ to a capped rebar set; 5) South 05° 27’37” East, 785.00’ to a capped rebar set; 6) South 03° 04’ 14” West, 101.12’ to a capped rebar set; and 7) South 05° 27’ 37” East 473.22’ to a capped rebar set at a corner for the land, a point in the line of lands of Ambax Properties, L.L.C.; thence leaving the westerly side of Delaware Route 896 along a division line of lands of Ambax Properties, L.L.C.; Ambax, Inc. and Southgate Realty Associates, South 67° 55’ 30” West, 704.56’ to a concrete monument found at a corner for the same; thence along a division line of lands of Southgate Realty Associates, South 23° 54’ 58” East, 576.47’ to a capped rebar set at a corner for the same; thence still along lands of Southgate Realty Associates, in part, passing over a concrete monument found at 70.88’, and along a division line for lands of Five T Associates, L.L.C., lands of Greenville International Associates and lands of BPG Hotel Partners IV, L.L.C., South 45° 11’ 17” West, 622.60’ to a rail monument reset, at a corner for the same; thence along the line of lands of BPG Hotel Partners IV, L.L.C., in part, running through a run, South 36° 21’ 55” East, 186.21’ to a drill hole set in a stone at a corner on the northerly side of Delaware Route No. 4, also known as Newark Connector, at varying widths, said point also being on a Denial of Access Line; thence leaving the line of land of BPG Hotel Partners IV, L.L.C., along the northerly and northeasterly sides of Delaware Route No. 4, also known as Newark Connector, by the following twelve (12) courses and distances: 1) South 45° 08’ 08” West, 18.37’ to a capped rebar set; 2) South 87° 13’ 19” West, 181.05’ to a concrete monument found; 3) South 84° 44’ 03” West, 170.07’ to a capped rebar set at a point of termination of the Denial of Access Line; 4) continuing along Delaware Route No. 4 with free access, South 86° 35’ 54” West, 188.59’ to a concrete monument found; 5) and then continuing with said Denial of Access Line, South 88° 59’ 15” West, 428.04’ to a railroad spike found; 6) North 84° 19’ 02” West, 586.18’ to a concrete monument found; 7) North 72° 11’ 22” West, 390.43’ to a capped rebar set; 8) North 70° 04’ 31” West, 548.70’ to a drill hole set in the concrete base of a fence post; 9) North 72° 11’ 13” West, 550.44’ to a drill hole set in the concrete base of a fence post; 10) North 65° 34’ 52” West, 518.15’ to a capped rebar set; 11) North 60° 46’ 12” West, 319.09’ to a concrete monument found; and 12) North 57° 45’ 17” West, 153.08’ to a concrete monument found at a corner of lands of the State of Delaware; thence leaving the northeasterly side of Delaware Route No. 4, along a division line of lands of the State of Delaware, North 34° 02’ 48” West, 752.78’ to a concrete monument found at a common corner for the same and lands of Pennsylvania Lines, L.L.C; thence leaving the line of lands of the State of Delaware, along a division line of Pennsylvania Lines, L.L.C., by the following two (2) courses and distances: 1) North 58° 28’ 50” East, 2,140.27’ to a capped rebar set; and 2) North 68° 26’ 45” East, 1,491.91’ to a capped rebar set at a corner of lands of CHRYSLER MOTORS LLC. Parts Division; thence along the land of CHRYSLER MOTORS LLC. Parts Division by the following two (2) courses and distances: 1) South 21° 36’ 51” East, 836.21’ to a fence post; and 2) North 68° 25’ 02” East, 1,403.22’ to the point and place of Beginning. Containing within the said described metes and bounds 244.2063 acres of land be the same, more or less.

ALL that certain tract or parcel of land, including the improvements located thereon, situate in the City of Newark, the County of New Castle, and the State of Delaware being more particularly described as follows:

BEGINNING at a capped rebar set on the southwesterly side of Delaware Route No. 896, also known as South College Avenue, at varying widths, a common corner of the property herein being described and lands of Old Carco LLC, Newark Assembly Plant and further located from the intersection formed by the westerly side of Delaware Route No. 896 with the southerly side of the lands of Pennsylvania Lines, L.L.C. by the following five (5) courses and distances: 1) South 05° 27’ 37” East, 429.70’ to a point; 2) South 08° 39’ 13” West, 253.54’ to a point of curvature; 3) by a curve to the left having a radius of 320.00’, an arc length of 72.61’ to a point of tangency; 4) South 04° 20’ 47” East, 212.71’ to a point; and 5) South 21° 30’ 57”, East, 20.01’; thence from the point and place of Beginning, along lands of Old Carco LLC, Newark Assembly Plant by the following two (2) courses and distances: 1) South 68° 25’ 02” West, 1403.22’ to a fence post; and 2) North 21° 36’ 51” West, 836.21’ to a capped rebar set at a corner for the same on the southeasterly line of lands of Pennsylvania Lines, L.L.C.; thence thereby, North 68° 26’ 45” East, 1377.51’ to a capped rebar set at a corner of lands of the State of Delaware, known as the Newark Commuter Railroad Station; thence thereby, by the following two (2) courses and distances: 1) South 51° 14’ 44” East, 73.53’ to a capped rebar set; and 2) South 21° 29’ 51” East, 722.21’ (722.23’ record) to a capped rebar set at a corner for the same, a point in the southwesterly side of Delaware Route No. 896; thence thereby, by the following two (2) courses and distances: 1) South 04° 20’ 47” East, 30.79’ to a capped rebar set and 2) South 21° 30’ 57” East, 20.01’ to the point and place of Beginning. Containing within the said described metes and bounds 27.0821 acres of land be the same, more or less.

SUBJECT to any existing easements, reservations, restrictions, limitations, covenants and agreements of record, to the extent the same are still valid and subsisting, none of which are deemed reimposed by this reference.

Grantee agrees to release Grantor from and against any and all claims against Grantor arising on or after the date hereof concerning the environmental condition of the Property and covenants not to sue the Grantor, any debtor or debtor-in-possession in the voluntary petition for relief under Chapter 11 of the U.S. Bankruptcy Code, 11 U.S.C. §§101, et seq., in the United States Bankruptcy Court for the Southern District of New York, which case is administered under Case No. 09-50002 (AJG) (the “Bankruptcy Proceeding”), or any of their respective employees, directors, officers, or agents, or join the Grantor, any debtor or debtor-in-possession in the Bankruptcy Proceeding, or any of their respective employees, directors, officers, or agents, in any action concerning the environmental condition of the Property. The foregoing release and covenant shall run with the Property and bind subsequent purchasers thereof.

This Quitclaim Deed is being filed pursuant to an Order issued by the United States Bankruptcy Court for the Southern District of New York (the “Bankruptcy Court”) pursuant to Sections 105 and 363 of the Bankruptcy Code, approving the Order Authorizing Debtors to Sell Newark, Delaware Assembly Plant Free and Clear of all Liens, Claims and Encumbrances and Granting Related Relief.

BEING as to Parcel 1 a portion of the same lands and premises which Manor Real Estate and Trust Company, a corporation of the Commonwealth of Pennsylvania, authorized to do business in the State of Delaware, by Deed dated January 25, 1947, of record in the Office of the Recorder of Deeds, in and for New Castle County, Delaware in Deed Record M, Volume 46, Page 51, granted and conveyed unto Chrysler Corporation, a corporation of the State of Delaware, in fee. The said Chrysler Corporation (Delaware Secretary of State File No. 0185130) changed its name to Chrysler Motors Corporation by merger dated May 29, 1986; the said Chrysler Motors Corporation merged into Chrysler Corporation (Delaware Secretary of State File No. 2084965) by merger dated December 14, 1989; the said Chrysler Corporation changed its name to DaimlerChrysler Corporation by amendment dated November 16, 1998; the said DaimlerChrysler Corporation changed its name to DaimlerChrysler Company LLC by conversion and formation dated March 29, 2007; the said DaimlerChrysler Company LLC changed its name to CHRYSLER LLC by amendment dated July 27, 2007; and the said CHRYSLER LLC changed its name to OLD CARCO LLC by amendment dated June 10, 2009.

ALSO BEING as to Parcel 1 a portion of the same lands and premises which The Philadelphia, Baltimore and Washington Railroad Company, a corporation of the State of Delaware, by Deed dated December 28, 1946, of record in the Office aforesaid in Deed Record M, Volume 46, Page 54, granted and conveyed unto Chrysler Corporation, a corporation of the State of Delaware, in fee. The said Chrysler Corporation (Delaware Secretary of State File No. 0185130) changed its name to Chrysler Motors Corporation by merger dated May 29, 1986; the said Chrysler Motors Corporation merged into Chrysler Corporation (Delaware Secretary of State File No. 2084965) by merger dated December 14, 1989; the said Chrysler Corporation changed its name to DaimlerChrysler Corporation by amendment dated November 16, 1998; the said DaimlerChrysler Corporation changed its name to DaimlerChrysler Company LLC by conversion and formation dated March 29, 2007; the said DaimlerChrysler Company LLC changed its name to CHRYSLER LLC by amendment dated July 27, 2007; and the said CHRYSLER LLC changed its name to OLD CARCO LLC by amendment dated June 10, 2009.

ALSO BEING as to Parcel 1 a portion of the same lands and premises which Manor Real Estate and Trust Company, a corporation of the Commonwealth of Pennsylvania, authorized to transact business in the State of Delaware, by Deed dated January 19, 1953, of record in the Office aforesaid in Deed Record B, Volume 53, Page 321, granted and conveyed unto Chrysler Corporation, a corporation of the State of Delaware, in fee. The said Chrysler Corporation (Delaware Secretary of State File No. 0185130) changed its name to Chrysler Motors Corporation by merger dated May 29, 1986; the said Chrysler Motors Corporation merged into Chrysler Corporation (Delaware Secretary of State File No. 2084965) by merger dated December 14, 1989; the said Chrysler Corporation changed its name to DaimlerChrysler Corporation by amendment dated November 16, 1998; the said DaimlerChrysler Corporation changed its name to DaimlerChrysler Company LLC by conversion and formation dated March 29, 2007; the said DaimlerChrysler Company LLC changed its name to CHRYSLER LLC by amendment dated July 27, 2007; and the said CHRYSLER LLC changed its name to OLD CARCO LLC by amendment dated June 10, 2009.

BEING as to Parcel 2 a portion of the same lands and premises which Chrysler Corporation, a Delaware corporation, by Quit Claim Deed dated December 19, 1997, of record in the Office aforesaid in Deed Book 2617, Page 332, granted and conveyed unto to Chrysler Motors Corporation, a Delaware corporation, in fee. The said Chrysler Motors Corporation (Delaware Secretary of State File No. 2827164) changed its name to DaimlerChrysler Motors Corporation by amendment dated November 16, 1998; the said DaimlerChrysler Motors Corporation merged into DaimlerChrysler Motors Company LLC by merger dated December 21, 2001; the said DaimlerChrysler Motors Company LLC changed its name to CHRYSLER MOTORS LLC by amendment dated July 27, 2007; and the said CHRYSLER MOTORS LLC changed its name to OLD CARCO MOTORS LLC by amendment dated June 10, 2009.

EXHIBIT B

Depiction of Premises

See Attached

116 Middessa Drive Middletown, DE 19709 Phone: (302) 983-7008 eFax: 1 (413) 215-4517 Email: JTraynor@TransitionES.com

January 11, 2012

DESCRIPTION OF PROPERTY KNOWN AS THE (50 ACRES) LEASE PARCEL BEING A PORTION OF LANDS NOW OR FORMERLY OF 1743 HOLDINGS LLC (FORMERLY OF CHRYSLER CORPORATION RECORDED ON MICROFILM NO. 5769) (PORTION OF TAX PARCEL NO. 18-039.00-002) WITH FRONTAGE ALONG THE NORTHERLY SIDE OF THE CHRISTINA PARKWAY (NEWARK CONNECTOR) DELAWARE ROUTE NO. 4, SAID LEASE PARCEL IS MORE PARTICULARLY SHOWN ON A PREMISES EXHIBIT PLAN PREPARED BY DUFFIELD ASSOCIATES INC. DATED JANUARY 11, 2012, PROJECT NO. 7333.CQ, FILE B7333CQ-LEASE-GRADE-RO (B7333CQ-LEASE-GRADE-R0.DWG). SITUATED IN THE CITY OF NEWARK, NEW CASTLE COUNTY, DELAWARE.

BEGINNING at an angle point (concrete monument) in the northerly side of the Christina Parkway (Newark Connector) Delaware Route No. 4, said point being further located along the said northerly side of the Christina Parkway (as shown on Microfilm No. 5769), the six (6) following described courses and distances from its point of intersection (drill hole in sidewalk) thereof with the (former) westerly side of South College Avenue Delaware Route No. 896 at 70’ wide:

1. S 84° 29’ 24” W, 826.66’ to an angle point (iron pipe);

2. N 36° 21’ 55” W, 139.65’ to an angle point (drill hole);

3. S 45° 08’ 08” W, along a denial of access line, a distance of 18.37’ to an angle point (capped rebar);

4. S 87° 13’ 19” W, along a denial of access line, a distance of 181.05’ to an angle point (concrete monument);

5. S 84° 44’ 03” W, along a denial of access line, a distance of 170.07’ to an angle point (capped rebar); and,

6. S 86° 35’ 54” W, along a break in the denial of access line, a distance of 188.59’.

THENCE from the said point of beginning, continuing along the said northerly side of the Christina Parkway (Newark Connector), along denial of access lines, the four (4) following described courses and distances:

1. S 88° 59’ 15” W, along a denial of access line, a distance of 428.04’ to an angle point (railroad spike);

2. N 84° 19’ 02” W, along a denial of access line, a distance of 586.18’ to an angle point (concrete monument);

3. N 72° 11’ 22” W, along a denial of access line, a distance of 390.43’ to an angle point (capped rebar); and,

4. N 70° 04’ 31” W, along a denial of access line, a distance of 192.53’ to a point;

Page 1 of 2

THENCE new lines passing through lands now or formerly of 1743 Holdings LLC (formerly of Chrysler Corporation recorded on Microfilm No. 5769) (Tax Parcel No. 18-039.00-002), the three (3) following described courses and distances:

1. N 21° 34’ 17” W, 1125.40’ to a point;

2. N 68° 25’ 43” E, 1,367.87’ to a point; and,

3. S 21° 34’ 17” E, 1,919.44’ to a point in the said northerly side of the northerly side of the Christina Parkway (Newark Connector) Delaware Route No. 4, the first mentioned point and place of beginning.

CONTAINING within said described metes and bounds 50.0020 acres of land, be the same more or less.

SUBJECT, however, to any easements, restrictions and agreements of record.

Page 2 of 2

EXHIBIT C

Tenant’s Preliminary Plans

See Attached

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EXHIBIT D

Memorandum of Lease

Prepared by and

Return to:

Shawn Tucker, Esq.

Tax Parcel No.                             

MEMORANDUM OF LEASE

THIS MEMORANDUM OF LEASE (this “Memorandum”) is made this          day of                     , 20            , by and between                              (“Landlord”), and                              (“Tenant”).

SECTION 1. Landlord and Tenant entered into a certain lease agreement dated                                               (the “Lease”). The premises demised by the Lease is approximately                          acres of the entire property located at                                  New Castle County, Delaware and more particularly described on Exhibit A (the “Premises”).

SECTION 2. The address of the Landlord as set forth in the Lease is:

The address of the Tenant as set forth in the Lease is:

SECTION 3. This Memorandum of Lease has been executed and recorded as notice of the Lease in lieu of recording the Lease itself.

SECTION 4. The initial term of the Lease is 25 years beginning on         , 20             and ending on                     . In addition, Tenant has four (4) options to renew the initial term of the Lease, each for a period of five (5) years.

SECTION 5. During the initial term and any extensions thereof, Tenant shall have a right of first refusal with respect to any sale, transfer or conveyance of Landlord’s interest in the Premises in accordance with the terms of the Lease.

This Memorandum is not intended to modify, limit or otherwise alter the terms, conditions and provisions of the Lease.

IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Memorandum, under seal, this      day of                      2012.

LANDLORD: 1743 HOLDINGS, LLC, a Delaware limited liability company
By:	(Seal)
	Name: Title:

TENANT: BLOOM ENERGY CORPORATION, a Delaware corporation
By:	(Seal)
	Name: Title:

EXHIBIT E

ENVIRONMENTAL INDEMNITY AND RELEASE AGREEMENT

THIS ENVIRONMENTAL INDEMNITY AGREEMENT (the “Agreement”) is made as of the     day of                     , 2012 (the “Effective Date”) by the UNIVERSITY OF DELAWARE, a Delaware corporation (“Guarantor”) and 1743 HOLDINGS, LLC, a Delaware limited liability company (“Landlord”) (jointly and severally, “Indemnitor”), with an address of 122 Hullihen Hall, Newark, Delaware in favor of BLOOM ENERGY CORPORATION, a Delaware corporation, (“Indemnitee”), with an address of 1299 Orleans Drive, Sunnyvale, California 94089 (collectively the “Parties”).

RECITALS

WHEREAS Indemnitor entered into a Brownfields Development Agreement (“BDA”) with the Delaware Department of Natural Resources and Environmental Control (“DNREC”) dated October 27, 2009 for the Chrysler Newark, Delaware assembly plant and adjacent MOPAR parts facility encompassing tax parcel numbers 18-039.00-002 and 18-036.00-002 and approximately 270.8 acres (“Site”).

WHEREAS Indemnitee shall lease approximately 50 acres of the Site from Landlord (the “Property”), pursuant to a Lease Agreement of even date herewith (“Lease”). Guarantor has agreed to guaranty certain of Landlord’s obligations under the Lease. The Property description is attached as Exhibit A.

WHEREAS as a condition to negotiating the Lease and conducting such due diligence with respect to environmental matters related to the Site, Indemnitor shall indemnify Indemnitee with respect to presently existing (as used herein, “presently existing” means as of the Effective Date) Contamination at, under or upon the Site or into the environment.

NOW THEREFORE, in consideration of the above and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound, the Indemnitor hereby represents, warrants, and agrees as follows:

Definitions. Terms not defined shall have the meaning as under the Lease. For purposes of this Agreement, the following terms shall have the following meanings:

“Agents” means the following and their respective successors and assigns: (i) with respect to Indemnitor or Indemnitee, the agents, officers, partners, employees, contractors, invitees and licensees of such party; and (ii) in addition, with respect to Indemnitee, Indemnitee’s subtenants and suppliers and their respective agents, employees, contractors, and invitees

“Environmental Law” means all federal, state and local laws, including principles of common law, regulations, statutes, codes, rules, resolutions, directives, orders, executive orders, consent orders, guidance from regulatory agencies, policy statements, judicial decrees, standards, permits, licenses and ordinances, or any judicial or administrative interpretation of any of the foregoing, pertaining to the protection of land, water, air, health, safety or the environment, whether now or in the future enacted, promulgated or issued. Environmental Law shall also include the BDA.

“Regulated Substances” includes any substances, chemicals, materials or elements that are prohibited, limited, regulated or governed by Environmental Law, or any other substances, chemicals, materials or elements: (i) defined as “hazardous substance” under the Comprehensive Environmental Response, compensation and Liability Act of 1980 (“CERCLA”) (42 U.S.C. §§9601, et seq), as amended by the Superfund Amendment sand Reauthorization Act of 1986, and as further amended from time to time, and regulations promulgated thereunder; (ii) defined as a “regulated substance” within the meaning of Subtitle I of the Resource Conservation and Recovery Act (42 U.S.C. §§ 6991-6991), and regulations promulgated thereunder; (iii) designated as a “hazardous substance” pursuant to Section 311 of the Clean Water Act (33 U.S.C. § 1321), or listed pursuant to Section 307 of the Clean Water Act (33 U.S.C. § 1317; (iv) defined as “hazardous”, “toxic”, or otherwise regulated, under Environmental Law adopted by the State of Delaware, or its agencies or political subdivisions including, Delaware’s Hazardous Substance Cleanup Act, 7 Del. C. Chapter 91; (v) petroleum, petroleum products or derivatives or constituents thereof; (vi) asbestos or asbestos-containing materials; (vii) urea formaldehyde foam insulation or urea formaldehyde foam insulation-containing materials; (viii) lead based paint or lead based paint-containing materials; (ix) polychlorinated biphenyls or polychlorinated biphenyl-containing materials; (x) radon or radon-containing or producing materials; (xi) the presence of which requires notification, investigation or remediation under Environmental Law or common law; causes or threatens to cause a nuisance or trespass upon the Property or to adjacent properties, poses or threatens to pose a hazard to the health or safety of persons on or about the Property; or (xi) by any laws of any government authority require special handling in its collection, storage, treatment, or disposal.

“Contamination” means the presence of Regulated Substances (whether know or unknown) as of the date hereof.

1. Representation and Warranties

(a) Indemnitor has the authority to enter into this Agreement, which is not a violation of the BDA.

2. Indemnification.

(a) Indemnitor covenants and agrees, at its sole cost and expense, to indemnify, defend, protect, save and hold harmless Indemnitee and its Agents against and from any and all Environmental Damages (as defined in subsection (b) below), which may at any time be imposed upon, threatened against, incurred by or asserted or awarded against Indemnitee or its Agents and arising from or out of:

(i) Indemnitor’s or its Agent’s failure to comply with any of the provisions of this Agreement;

(ii) any presently existing, known or unknown, Contamination on, in or under, or migrating from, all or any portion of the Site, regardless of any non-negligent acts or omissions of Indemnitee or Indemnitee’s Agents with respect thereto; or

(iii) any violation of or alleged violation of Environmental Law at the Site relating to or in connection with presently existing, known or unknown, Contamination; and

(iv) the enforcement of this Agreement.

(b) For the purposes of this Agreement, “Environmental Damages” shall mean all claims, costs and expenses (including construction costs), judgments, damages, losses, penalties, fines, liabilities, including strict liability, encumbrances, liens, costs and expenses of investigation and defense of any claim, whether or not such claim is ultimately defeated, and of any good faith settlement, of whatever kind or nature, contingent or otherwise, matured or unmatured, foreseeable or unforeseeable, including reasonable attorneys’ and consultants’ fees and disbursements and any out-of-pocket costs payable by Indemnitee to a third party.

(c) Promptly after the receipt by Indemnitee of written notice of any demand or claim or the commencement of any action, suit or proceeding relating to presently existing, known or unknown, Contamination in connection with the Site, Indemnitee shall notify the Indemnitor thereof in writing. The failure by Indemnitee to promptly provide such notice shall not relieve the Indemnitor of any liability or indemnity obligation to Indemnitee or its Agents hereunder except to the extent Indemnitor is actually prejudiced by such failure to give prompt notice.

(d) This provisions of this Agreement survive the termination of the Lease.

3. Indemnitor’s Obligation to perform Environmental Work

(a) The Indemnitee shall have the right to conduct such work required by Environmental Law to address any presently existing, known or unknown, Contamination (i) on, in, under or migrating from the Property or (ii) threatening or migrating onto the Property from the Site (“Corrective Work”). Indemnitee shall notify the Indemnitor of it desire to either (i) conduct such Corrective Work in accordance with all applicable laws and, in such an event, the Indemnitor shall reimburse Indemnitee for all costs related to conducting such Corrective Work, or (ii) request the Indemnitor to complete such Corrective Work at its sole cost and expense.

(b) If Indemnitee performs the Corrective Work, Indemnitee shall promptly commence and diligently perform the Corrective Work in compliance with all applicable laws, shall keep Indemnitor reasonably informed of its plans to perform the Corrective Work and provide Indemnitor with a reasonable opportunity to review and comment upon any proposed Corrective Work prior to submission to any governmental authority.

(c) If Indemnitor performs the Corrective Work, Indemnitor shall promptly commence and diligently perform such Corrective Work in compliance with all applicable laws and in such a manner that will minimize (i) any impact on Indemnitee and (ii) any interference on Indemnitee’s use and enjoyment of the Property. Indemnitor shall keep Indemnitee reasonably informed of its plans to perform the Corrective Work, provide Indemnitee with a reasonable opportunity to review and comment upon any proposed Corrective Work prior to submission to any governmental authority, and provide reasonable advance notice of the need for access to the Property to perform the Corrective Work.

(d) Indemnitor shall take all responsibility as generator for any Regulated Substances generated by performance of any Corrective Work.

4. Release of Liability. Indemnitor hereby waives, releases and discharges forever Indemnitee from all present and future claims, demands, suits, legal and administrative proceedings and from all liability for damages, losses, costs, liabilities, fees and expenses, present and future, arising out of any presently existing Contamination on, in, under or migrating from all or any portion of the Site, except to the extent any negligent act or omission by Indemnitee causes, contributes or exacerbates any such condition.

5. Notices. All notices, demands, requests, consents, approvals and other communications required or permitted hereunder must be in writing and will be effective upon receipt if delivered personally, or if sent by facsimile transmission with confirmation of delivery, or by nationally recognized overnight courier service, to the address of Indemnitee or Indemnitor set forth above or to such other address as Indemnitee or Indemnitor may give to the other in writing for such purpose. Notices shall be provided to the following individuals:

On behalf of Indemnitor:	University of Delaware 122 Hullihen Hall Newark, DE Attn: Fax: (302)
With a copy to:	Laure B. Ergin, Esq. Assistant General Counsel
On behalf of Indemnitee:	Bloom Energy Corporation

	1299 Orleans Drive Sunnyvale, CA 94089 Attn: General Counsel Fax: 408-543-1501 legal@bloomenergy.com
With a copy to:	Drinker Biddle & Reath 1100 N. Market Street, Suite 1000 Wilmington, DE 19801 Attn: Shawn Tucker, Esq. Fax: (302) 467-4200

6. Preservation of Rights. No delay or omission on Indemnitee’s part to exercise any right or power arising hereunder will impair any such right or power or be considered a waiver of any such right or power, nor will Indemnitee’s action or inaction impair any such right or power, except to the extent Indemnitee’s failure to immediately notify Indemnitor of any claim pursuant to 2(c) of this Agreement has actually and substantially prejudiced Indemnitor hereunder. Indemnitee’s rights and remedies hereunder are cumulative and not exclusive of any other rights or remedies which Indemnitee may have under other agreements, at law or in equity. Any indemnification obligations or liabilities contained in this Agreement shall not be affected by any knowledge of, or investigations performed by, Indemnitee except to the extent that such actions by Indemnitee are in violation of Environmental Law. Any one or more persons or entities comprising Indemnitor, or any other party liable upon or in respect of this Agreement, may be released without affecting the liability of any party not so released.

7. Entire Agreement; Amendment; Severability. This Agreement contains the entire agreement between the Parties respecting the matters set forth herein and supersedes all prior agreements, whether written or oral, between the Parties respecting such matters. Any amendments or modifications hereto, in order to be effective, shall be in writing and executed by the parties hereto. A determination that any provision of this Agreement is unenforceable or invalid shall not affect the enforceability or validity of any other provision, and any determination that the application of any provision of this Agreement to any person or circumstance is illegal or unenforceable shall not affect the enforceability or validity of such provision as it may apply to any other person or circumstances.

8. Successors and Assigns; Survival. This Agreement will be binding upon the Indemnitor and its heirs, administrators, successors and assigns, and will inure to the benefit of Indemnitee and its successors and assigns; provided, however, that the Indemnitor may not assign this Agreement in whole or in part without Indemnitee’s prior written consent. Indemnitor’s obligations in favor of Indemnitee under this Agreement shall survive the expiration of the anticipated Lease.

9. Interpretation. In this Agreement, unless Indemnitee and the Indemnitor otherwise agree in writing, the singular includes the plural and the plural the singular; references to statutes are to be construed as including all statutory provisions consolidating, amending or

replacing the statute referred to; the word “or” shall be deemed to include “and/or”, the words “including”, “includes” and “include” shall be deemed to be followed by the words “without limitation”; and references to sections or exhibits are to those of this Agreement unless otherwise indicated. Section headings in this Agreement are included for convenience of reference only and shall not constitute a part of this Agreement for any other purpose. If this Agreement is executed by more than one party as Indemnitor, the obligations of such persons or entities will be joint and several.

10. Governing Law and Jurisdiction. This Agreement has been delivered to and accepted by Indemnitee and will be deemed to be made in the STATE OF DELAWARE. THIS AGREEMENT WILL BE INTERPRETED AND THE RIGHTS AND LIABILITIES OF THE PARTIES HERETO DETERMINED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, EXCLUDING ITS CONFLICT OF LAWS RULES. Indemnitor hereby irrevocably consents to the exclusive jurisdiction of any state or federal court for the county or judicial district where Indemnitee’s office indicated above is located, and consents that all service of process be sent by nationally recognized overnight courier service directed to Indemnitor at Indemnitor’s address set forth herein and service so made will be deemed to be completed on the business day after deposit with such courier; provided that nothing contained in this Agreement will prevent Indemnitee from bringing any action, enforcing any award or judgment or exercising any rights against Indemnitor individually, against any security or against any property of the Indemnitor within any other county, state or other foreign or domestic jurisdiction. Indemnitor acknowledges and agrees that the venue provided above is the most convenient forum for both Indemnitee and Indemnitor. Indemnitor waives any objection to venue and any objection based on a more convenient forum in any action instituted under this Agreement.

11. WAIVER OF JURY TRIAL. THE INDEMNITOR AND INDEMNITEE BY ITS ACCEPTANCE HEREOF IRREVOCABLY WAIVE ANY AND ALL RIGHT THEY MAY HAVE TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR CLAIM OF ANY NATURE RELATING TO THIS AGREEMENT, ANY DOCUMENTS EXECUTED IN CONNECTION WITH THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED IN ANY OF SUCH DOCUMENTS. THE INDEMNITOR AND INDEMNITEE ACKNOWLEDGE THAT THE FOREGOING WAIVER IS KNOWING AND VOLUNTARY.

WITNESS the due execution hereof as a document under seal, as of the date first written above.

[CORPORATE SEAL]	UNIVERSITY OF DELAWARE
Attest:	By:
Print Name:	Name:
Title:	Title:

1743 HOLDINGS, LLC, a Delaware limited liability company
By:	(Seal)
	Name:
	Title:

STATE OF                                )

                                                    )            ss:

COUNTY OF                            )

On this, the      day of                     ,             , before me, a Notary Public, the undersigned officer, personally appeared                                         , who acknowledged himself/herself to be the                                         of                         a[n], and that he/she, in such capacity, being authorized to do so, executed the foregoing instrument for the purposes therein contained by signing on behalf of said corporation.

IN WITNESS WHEREOF, I hereunto set my hand and official seal.

Notary Public

My commission expires:

Print Name

County of Residence

EXHIBIT F

[Road Work]

EXHIBIT G

[Rough Grading Plan]

EXHIBIT H

GUARANTY

THIS GUARANTY (this “Guaranty”) is made as of the              day of                 , 2012, by the University of Delaware, a Delaware corporation (“Guarantor”), in favor of Bloom Energy Corporation, a Delaware corporation (“Beneficiary”). Guarantor recites as follows:

A. Beneficiary, as tenant, and 1743 Holdings, LLC, a Delaware limited liability company (“Landlord”), are concurrently herewith entering into a Ground Lease, pursuant to which Landlord will lease to Beneficiary approximately fifty (50) acres of a property located in the City of Newark, New Castle County, Delaware (the “Lease”).

B. Guarantor is the sole member of Landlord and will derive a substantial benefit from Landlord and Beneficiary’s agreement to enter into the Lease.

C. As a condition precedent to Beneficiary’s obligations under the Lease, and as a material inducement for Beneficiary to enter into the Lease, Guarantor desires to guaranty the performance of all of the obligations of Landlord under the Lease, on the terms and conditions described herein.

NOW, THEREFORE, in consideration of Ten Dollars ($10) in hand paid, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Guarantor hereby unconditionally guaranties and agrees as follows:

1. Guarantor hereby unconditionally, absolutely and irrevocably guaranties (a) the performance of Landlord’s Work under the Lease, and (b) Landlord’s reimbursement obligation under Section 4.1(c) of the Lease, if applicable (collectively, the “Guaranteed Obligations”).

2. This Guaranty shall be irrevocable, absolute and unconditional and shall remain in full force and effect until the full and complete payment and performance by Landlord of all Guaranteed Obligations, irrespective of the validity or enforceability of, or of any changes, modifications or amendments that may from time to time be made to, the Lease, and notwithstanding the incompetency of Guarantor from time to time, and further notwithstanding any act or failure to act on the part of Beneficiary or any other party which might otherwise operate as a legal or equitable discharge of Guarantor (including, without limitation, the liquidation, dissolution, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition or readjustment of, or other similar proceedings affecting the status, existence, assets or obligations of Guarantor). Guarantor may not revoke the continuing nature of this Guaranty. In the event that Beneficiary seeks to enforce any of its rights under this Guaranty and demands payment or performance from Guarantor, such demand and Guarantor’s compliance therewith shall not release, extinguish, exonerate or in any way affect or diminish Guarantor’s continuing obligations under this Guaranty.

3. Subject to the terms thereof, the Lease may be assigned, modified or amended in whole or in part, and changes may be made in the entity comprising Landlord or Beneficiary from time to time without notice to Guarantor and without releasing Guarantor or extinguishing, exonerating or in any way affecting or diminishing Guarantor’s obligations under this Guaranty. Similarly, Beneficiary may from time to time, and without notice to Guarantor, release Landlord or any persons or entities comprising Landlord from Landlord’s obligations under the Lease; release or substitute any security that Beneficiary may have for the Guaranteed Obligations or accept security therefor; add, substitute or release additional guarantors; or compromise or settle any amount due or owing, or claimed to be due or owing, under the Lease; and no such action by Beneficiary or any other act or omission of Beneficiary in connection with the Lease shall in any way affect this Guaranty or Guarantor’s obligations hereunder. In addition, subject to the terms of the Lease, Beneficiary may, without notice to Guarantor, assign, transfer, encumber or otherwise dispose of any or all of Beneficiary’s rights, claims or interests in, under and to the Lease or this Guaranty, and no such act shall release Guarantor or extinguish or diminish in any way Guarantor’s obligations hereunder.

4. Guarantor agrees that this Guaranty shall constitute a guaranty of payment and performance and not of collection, the obligations of Guarantor under this Guaranty are independent of the obligations of Landlord, and Beneficiary may enforce this Guaranty against Guarantor without first (a) making any effort at collection or enforcement of any Guaranteed Obligations from or against Landlord or any other party that may be liable therefor (including filing suit or otherwise initiating legal proceedings to obtain or assert a claim for personal judgment against Landlord), (b) exercising or asserting any other right or remedy which may be available in connection with the Guaranteed Obligations or resorting to or exhausting any other security, guaranty or collateral held with respect to the Guaranteed Obligations or (c) asserting or filing any claim against the assets of Landlord, Guarantor, or any of them for such Guaranteed Obligations or any part thereof.

5. Guarantor expressly waives (a) any right Guarantor may have to require Beneficiary to proceed against Landlord or any other guarantor of any Guaranteed Obligations, to proceed against or exhaust any security held by Beneficiary, or to pursue any other remedy in Beneficiary’s power to pursue prior to claiming or proceeding against Guarantor; (b) any defense based upon any legal disability of Landlord or any other guarantor of any Guaranteed Obligations or any discharge or limitation of the liability of Landlord or any such other guarantor to Beneficiary, whether consensual or arising by operation of law or any bankruptcy, reorganization, receivership, insolvency or debtor-relief proceeding or from any other cause; (c) any defense based upon any invalidity or unenforceability of any other guarantee of any Guaranteed Obligations; (d) any notice of acceptance of this Guaranty, diligence, presentment, demand, protest, extension of time for payment or performance of the Guaranteed Obligations, and notice of any kind whatsoever and Guarantor hereby consents to any and all forbearances and extensions of time for payment and performance of the Guaranteed Obligations now or hereafter made or granted with or without notice to Guarantor; (e) any right to assert the statute of limitations as a defense against enforcement of this Guaranty; and (f) all rights of subrogation, indemnification, contribution and reimbursement, all rights to enforce any remedy that Beneficiary may have against Landlord, or any other guarantor of any Guaranteed Obligations,

and all rights to participate in any security held by Beneficiary for the Guaranteed Obligations until such Guaranteed Obligations have been paid and performed in full. Without limiting the foregoing, Guarantor hereby waives any and all rights and defenses arising out of an election of remedies by Beneficiary, even though that election of remedies has destroyed any right that Guarantor may have to collect from Landlord (including Guarantor’s right of subrogation or reimbursement against Landlord).

6. Guarantor hereby subordinates all its claims for payment or liens now or hereafter securing any indebtedness of Landlord to Guarantor to Beneficiary’s right to receive payment from Landlord of all Guaranteed Obligations. Guarantor expressly waives any and all rights of subrogation, reimbursement, indemnity or contribution which Guarantor may now or hereafter have against Landlord, any other guarantor or any person who now or hereafter has direct or contingent liability (whether by contract, at law or in equity) for all or any portion of the Guaranteed Obligations, and any benefit of, and any right to participate in, any security now or hereafter held by Beneficiary until the Guaranteed Obligations have been paid and performed in full. If and to the extent this waiver is unenforceable, Guarantor agrees that all such rights of subrogation, reimbursement, indemnity and contribution shall be junior and subordinate to the right of Beneficiary to obtain payment and performance of the Guaranteed Obligations and to all rights of Beneficiary in and to any property which now or hereafter serves as collateral for the Guaranteed Obligations.

7. This Guaranty shall remain and continue in full force and effect notwithstanding (a) the commencement or continuation of any action or proceeding by, against or concerning Landlord or Beneficiary under any bankruptcy, insolvency or other debtor-relief law, (b) the voluntary or involuntary appointment of a receiver, trustee, keeper or other person who takes possession of any of Landlord’s or Beneficiary’s respective assets, regardless of whether such appointment occurs as a result of insolvency or any other cause or (c) any assignment by Landlord or Beneficiary for the benefit of its respective creditors. In the event any payment by Landlord to Beneficiary is held to constitute a preference, fraudulent conveyance or similar voidable payment under any law now or hereafter in effect and such payment is rescinded or otherwise required to be returned by Beneficiary, such payment by Landlord to Beneficiary shall not constitute a release of Guarantor and shall not in any way diminish Guarantor’s obligations hereunder. To the contrary, this Guaranty shall in such event continue to be effective or shall be reinstated, as the case may be, to the extent of any such payment or payments.

8. This Guaranty shall not be subject to any condition precedent to the effectiveness hereof. Upon execution and delivery of this Guaranty by Guarantor, this Guaranty shall be in full force and effect. This Guaranty may not be amended, modified, waived, discharged or terminated orally or by course of conduct, but only by an instrument in writing duly executed by both Beneficiary and Guarantor. No waiver by Beneficiary of any default or any other event shall be effective unless in writing, nor shall it operate as a waiver of any other default or of the same default on a future occasion. No delay or omission by Beneficiary in exercising any of its rights, remedies, powers and privileges under the Lease or hereunder and no course of dealing between Beneficiary, on the one hand, and Landlord, Guarantor or any other person, on the other hand, shall be deemed a waiver by Beneficiary of any of its rights, remedies, powers or

privileges, even if such delay or omission is continuous or repeated, nor shall any single or partial exercise of any right, remedy, power or privilege preclude any other or further exercise thereof by Beneficiary, or the exercise of any other right, remedy, power or privilege by Beneficiary. No notice to or demand on Landlord, Guarantor or any other person or entity in any instance shall entitle Landlord, Guarantor or any other person or entity to any other or further notice or demand in any circumstances or constitute a waiver of Beneficiary’s right to any other or further action in any circumstance without notice or demand.

9. This Guaranty shall inure to the benefit of any person or persons, entity or entities who now or hereafter may be entitled to the benefits or obligated to perform the duties of Beneficiary under the Lease and shall be binding upon the heirs, legal representatives, successors and assigns of Guarantor. All rights and remedies of Beneficiary under this Guaranty and the Lease are cumulative and not restrictive of any other rights or remedies available at law or in equity. Any notices required or permitted hereunder shall be in writing and shall be deemed duly given (a) when personally delivered or (b) when sent by fax with confirmation of receipt or (c) one business day after being sent by reputable overnight delivery service, charges prepaid, and addressed as follows: if to Beneficiary: c/o Bloom Energy Corporation, 1299 Orleans Drive, Sunnyvale, CA 94089, Attn: General Counsel; and if to Guarantor, at: University of Delaware, 122 Hullihen Hall, Newark, DE 19716, Attn: General Counsel. Whenever possible, each provision of this Guaranty shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Guaranty shall be prohibited by or invalid under such law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Guaranty.

10. GUARANTOR HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHTS THAT GUARANTOR MAY HAVE TO A TRIAL BY JURY IN ANY LITIGATION ARISING IN ANY WAY IN CONNECTION WITH THIS GUARANTY, OR ANY OTHER STATEMENTS OR ACTIONS OF THE OTHER PARTY. GUARANTOR ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT FOR BENEFICIARY TO ENTER INTO THE LEASE. Guarantor irrevocably and unconditionally accepts and consents to jurisdiction in the state in which the property covered by the Lease is located in any action or proceeding relating to this Guaranty, agrees to the venue of any such action or proceeding in any state court in the county in which such property is located or in any federal court whose district includes any such county, and waives any objection to any such venue on the basis of inconvenient forum. Guarantor consents to service of process in any such action or proceeding by any means permitted by the law of such state. This Guaranty shall be governed by and construed in accordance with the laws of the state in which the property covered by the Lease is located.

IN WITNESS WHEREOF, the undersigned has executed this Guaranty as of the day and year first above written.

GUARANTOR:

UNIVERSITY OF DELAWARE,

a Delaware corporation

By:

Name:

Its:

EX-10

Exhibit 10.9

Ion America Corporation

16085 Greenwood Lane

Monte Sereno, CA 95030

April 1, 2002

K.R. Sridhar

Dear K.R.:

Ion America Corporation (the “Company”) is pleased to offer you the position of Member of Technical Staff. This letter embodies the terms of our offer of employment to you.

AT WILL Employment. You should be aware that your employment with the Company is AT WILL, which is to say that your employment is freely entered into and is for no specified period of time. As a result, you are free to resign at any time, for any reason or for no reason. Similarly, the Company is free to conclude its employment relationship with you at any time, with or without cause.

Salary. Your salary will be $180,000 per year and will be paid in accordance with the Company’s normal payroll practices. As an employee of the Company, you are also eligible to receive the standard package of employee benefits available to all of our employees.

Bonus. You are eligible to receive an annual bonus of up to forty percent (40%) of your salary. This bonus is fully subject to the discretion and approval of the Board of Directors and will be paid in accordance with the Company’s normal bonus payment practices.

Company Rules. As an employee of the Company, you will be expected to abide by the Company’s rules and regulations. As a condition of employment at the Company, you will be expected to sign and comply with the Company’s standard form of employment, confidential information, invention assignment and arbitration agreement. This agreement requires, among other provisions, the assignment of patent rights to any invention made by you during your employment at the Company, the non-disclosure of proprietary information, and your agreement to submit all employment disputes to arbitration.

Required Documentation. This offer is subject to your submission to the Company of satisfactory documentation with respect to your identification and right to work in the United States no later than three (3) days after your employment begins.

Arbitration. In the event of any dispute or claim relating to or arising out of our employment relationship, you and the Company agree that all such disputes, including but not limited to, claims of harassment, discrimination and wrongful termination, shall be settled by arbitration held in Santa

Clara County, California, under the Arbitration Rules set forth in California Code of Civil Procedure Section 1280, et seq., including section 1283.05, (the “Rules”) and pursuant to California law.

Prior Employment Matters. This offer letter confirms your representation to us that: (i) you are not a party to any employment agreement or other contract or arrangement which prohibits your full-time employment with the Company; (ii) you will not disclose (nor have we solicited) any trade secret or confidential information of any person, including prior employers, to the Company; and (iii) you do not know of any conflict that would restrict your employment with the Company.

Entire Agreement. No agreements, representations, or understandings (whether oral or written and whether express or implied) that are not expressly set forth in this letter have been made or entered into by either party with respect to the subject matter hereof, except that certain Management Retention Agreement between you and the Company.

Acceptance. If you wish to accept employment at the Company under the terms set forth above, please sign and date this letter, and return it to the Company no later than three days after the date first written above. If you accept our offer, your first day of employment will be April 1, 2002.

We look forward to your favorable reply and to a productive and exciting working relationship.

Sincerely,

/s/ K.R. Sridhar

K.R. Sridhar, President

Approved and Accepted:

/s/ K.R. Sridhar

Signature

Date

-2-

EX-10

Exhibit 10.10

April 9, 2015

Randy W. Furr

Dear Randy,

I am pleased to extend to you an offer for the position of Chief Financial Officer with Bloom Energy. I can’t wait to have you join the company and partner with me to build a great company where together we can all change the world.

The details of our offer of employment follow. Please let me, or David Barber, know if you have any questions or need clarification.

I look forward to you joining Bloom on April 27th and working together to build a great company.

/s/ K.R. Sridhar

KR Sridhar

President and CEO

Bloom Energy Corporation

Offer of Employment

We are pleased to offer you the position of Chief Financial Officer, (HR title: Chief Financial Officer. EXEC2) with Bloom Energy Corporation (the “Company”). In this full-time, exempt position, you will report to KR Sridhar and will be based out of our Sunnyvale Corporate Headquarters. Your annual starting salary will be $350,000 less applicable withholdings and deductions, and you will be paid every two (2) weeks in accordance with the Company’s normal payroll practices. Pursuant to the terms of the Quarterly Incentive Program Policy, you are eligible to receive an annual discretionary bonus which is a 50% target of your salary and is paid quarterly.

As an additional benefit to you, the Company had agreed to honor your request to exchange your first quarter salary for Restricted Stock Units (RSU) as detailed in Attachment A.

We will recommend that the Company’s Board of Directors grant you an option to purchase 350,000 shares of the Company’s Common Stock at a share price equal to the Common Stock’s fair market value on the date of grant. The vesting commencement date subject to this grant will be the date your employment commences. This option grant will vest over five years as follows: 20% will vest on your first anniversary date of employment, and 1/60 of your shares will vest each of the 48 months thereafter. This grant is subject to your continued employment with the Company.

In addition, and with the successful completion of the three (3) strategic objectives to be determined between you and KR Sridhar within the first 30 days of your employment, we are prepared to offer you an additional option to purchase 50,000 shares of the Company’s common stock. The date of grant will be the next meeting of the Company’s Board of Directors following the successful completion of your three (3) strategic objectives, and the exercise price for each option will be equal to the then fair market value of the stock as determined by the Board of Directors on the date of the grant. Vesting of the options will begin at successful completion of the strategic objectives, and will vest at the rate of 1/60 of the option shares at the end of each month thereafter (without cliff vesting), as long as you remain as an employee of the Company on each vesting date. These options will also be governed by the terms of the Company’s standard form of stock option agreement.

If, within 12 months following a “Change of Control” of the Company your employment with the Company is terminated by the Company for reasons other than “Cause” (and not as a result of your death or disability), or terminated by you for “Good Reason”, then, subject to your entering into a standard form of release of claims with the Company, (i) any unvested equity incentives in shares of the Company’s common stock then held by you that are subject to vesting on the basis of

/s/ DB             DB /s/ RF             RF

your continued service with the Company, including but not limited to the stock options identified above, shall immediately accelerate and vest as if your employment with the Company had continued for a period of 12 months. A full Change of Control agreement with terms and definitions will follow in a separate document.

You will also be eligible to receive benefits that the Company generally provides to its employees, consistent with the eligibility terms of those programs. A more detailed description of these benefits will be provided to you upon joining the Company.

Your offer of employment is conditioned upon a satisfactory (in the Company’s discretion) reference check and background check, and upon proof of your right to work in the US. Your employment with the Company is further subject to the terms and conditions specified in this letter. This offer of employment is valid for seven days. Orientation and training for new employees are on Mondays so, if you choose to accept this offer of employment, please return your offer letter by the Wednesday prior to your Monday start date.

This letter and the following pages set forth the terms of your employment with the Company and supersede any prior representations or agreements including, but not limited to, any representations made during your recruitment, interviews or pre-employment negotiations, whether written or oral. This letter and its attachments may not be modified or amended except by a written agreement signed by the President of the Company and you.

We are very excited about you joining our team and look forward to a mutually rewarding relationship. By signing below you are accepting the Company’s offer of employment pursuant to the terms and conditions specified in this letter and in Attachment A. After signing and dating this letter below, please return all pages by email, mail, or to our confidential fax (408-543-1505).

Sincerely,	Agreed to and accepted by:
/s/ David Barber	Signature:	/S/ RANDY W. FURR
David Barber	Print Name:	RANDY W. FURR
Vice President, Human Resources	Date:	April 10, 2015
Bloom Energy Corporation	Start Date:	April 27, 2015

/s/ DB             DB     /s/ RF             RF

Attachment A

In addition to the terms outlined in the previous pages, your employment at Bloom Energy Is conditioned upon the following.

At-Will Employment. You will be an “at will” employee of the Company. This means that either you or the Company may terminate your employment at any time, for any reason or no reason, with or without cause or notice. Regular employment at the Company is for no specified period of time and the Company makes no guarantee or contract of continued employment. Although your job duties, title, compensation, and benefits, as well as the Company’s personnel policies, may change from time to time, the “at will” nature of your employment may not be changed except in an express written agreement signed by you and the President of the Company. In the event that you choose to resign from the Company, we request that you give us at least one month notice.

First Quarter Compensation. You have requested the first quarter of pay (3 Months) to be paid in 5,835 Restricted Stock Units (RSU), in lieu of your regular salary. During this period, the company will pay you $1 to maintain your continuous employment and cover any other costs to ensure your eligibility for all benefits afforded to you under the Company’s customary benefit plans. The vesting of this entire RSU grant will occur at the end of the lock-up period following an IPO, or upon a change of control, or upon your departure from the company, whichever comes first. After the first three (3) months of your employment, your pay will be the annual equivalent of $350,000 paid every two weeks. In accordance with the Company’s regular payroll practices. This is a one-time election afforded to you by the Company.

Stock Options. If approved by the Board, your stock will be subject to the terms and conditions of the Company’s Stock Option Plan and Stock Option Agreement, including vesting requirements. You will be provided with a copy of the Stock Option Plan and Stock Option Agreement following the Board’s approval of your grant.

Annual Bonus. Your annual bonus is subject to the discretion and approval of the Board of Directors and will be paid in accordance with the Company’s normal bonus payment practices. Your bonus is a percentage of base pay earned during the calendar year. Therefore your bonus in the first year will be prorated based upon your first date of regular employment, and will be prorated in the event you take an unpaid leave of absence. Your first quarter bonus (three (3) months), will be calculated in accordance with your regular quarterly salary without respect to the RSUs in lieu of pay as elected. To be eligible for the annual bonus program, you must be a regular employee at calendar yearend and have been an active regular employee for at least 30 days during the calendar year.

References. The Company reserves the right to conduct background investigations and/or reference checks on all of its potential employees. Your job offer, therefore, is contingent upon a clearance of such a background investigation and/or reference check, if any.

/s/ DB             DB /s/ RF             RF

Right to Work. For purposes of federal immigration law, you will be required to provide to the Company documentary evidence of your identity and eligibility for employment in the United States. Such documentation must be provided to us within three (3) business days of your date of hire, or our employment relationship with you may be terminated.

Prior Employment. We also ask that, if you have not already done so, you disclose to the Company any and all agreements relating to your prior employment that may affect your eligibility to be employed by the Company or limit the manner in which you may be employed. It is the Company’s understanding that any such agreements will not prevent you from performing the duties of your position and you represent that such is the case. Moreover, you agree that, during the term of your employment with the Company, you will not engage in any other employment, occupation, consulting or other business activity directly related to the business in which the Company is now involved or becomes involved during the term of your employment, nor will you engage in any other activities that conflict with your obligations to the Company. Similarly, you agree not to bring any third party confidential information to the Company, including that of your former employer, and that in performing your duties for the Company you will not in any way utilize any such information.

Company Policies. As a Company employee, you will be expected to abide by the Company’s rules and standards. Specifically, you will be required to sign an acknowledgment that you have read and that you understand the Company’s rules of conduct which are included in the Company Handbook.

Intellectual Property. As a condition of your employment, you are also required to sign and comply with the Company’s “Employment, Confidential Information, Invention Assignment and Arbitration Agreement,” which requires, among other provisions, the assignment of patent rights to any invention made during your employment at the Company, and non-disclosure of Company proprietary information. Please note that we must receive your signed Agreement on your first day of employment.

Arbitration. (a) Any dispute or controversy arising out of or relating to your employment relationship with the Company, will be settled by final and binding arbitration by a single arbitrator to be held in Santa Clara County, California, in accordance with the American Arbitration Association national rules for resolution of employment disputes then in effect, except as provided herein. The arbitrator selected shall have the authority to grant any party all remedies otherwise available by law, including injunctions, but shall not have the power to grant any remedy that would not be available in a state or federal court in California. The arbitrator shall be bound by and shall strictly enforce the terms of this section and may not limit, expand or otherwise modify its terms. The arbitrator shall make a good faith effort to apply the substantive law (and the law of remedies, if applicable) of the state of California, or federal law, or both, as applicable, without reference to its conflicts of laws provisions, but an arbitration decision shall not be subject to review because of errors of law. The arbitrator is without jurisdiction to apply any different substantive law. The arbitrator shall have the authority to hear and rule on dispositive motions (such as motions for summary adjudication or summary judgment). The arbitrator shall have the powers granted by California law and the rules of the American Arbitration Association which conducts the arbitration, except as modified or limited herein.

/s/ DB             DB /s/ RF             RF

(b) Notwithstanding anything to the contrary in the rules of the American Arbitration Association, the arbitration shall provide (i) for written discovery and depositions as provided in California Code of Civil Procedure Section 1283.05 and (ii) for a written decision by the arbitrator that includes the essential findings and conclusions upon which the decision is based which shall be issued no later than thirty (30) days after a dispositive motion is heard and/or an arbitration hearing has completed. Except in disputes where you assert a claim otherwise under a state or federal statute prohibiting discrimination in employment (“a Statutory Discrimination Claim”), the Company shall pay all fees and administrative costs charged by the arbitrator and American Arbitration Association. In disputes where you assert a Statutory Discrimination Claim against the Company, you are required to pay the American Arbitration Association’s filing fee only to the extent such filing fee does not exceed the fee to file a complaint in state or federal court. The Company shall pay the balance of the arbitrator’s fees and administrative costs.

(c) You and the Company shall have the same amount of time to file any claim against any other party as such party would have if such a claim had been filed in state or federal court. In conducting the arbitration, the arbitrator shall follow the rules of evidence of the State of California (including but not limited to all applicable privileges), and the award of the arbitrator must follow California and/or federal law, as applicable.

(d) The arbitrator shall be selected by the mutual agreement of the parties. If the parties cannot agree on an arbitrator, the parties shall alternately strike names from a list provided by the American Arbitration Association until only one name remains.

(e) The decision of the arbitrator will be final, conclusive and binding on the parties to the arbitration. The prevailing party in the arbitration, as determined by the arbitrator, shall be entitled to recover her or its reasonable attorneys’ fees and costs, including the costs or fees charged by the arbitrator and the American Arbitration Association. In disputes where you assert a Statutory Discrimination Claim, reasonable attorneys’ fees shall be awarded by the arbitrator based on the same standard as such fees would be awarded if the Statutory Discrimination Claim had been asserted in state or federal court. Judgment may be entered on the arbitrator’s decision in any court having jurisdiction.

/s/ DB             DB /s/ RF             RF

EX-10

Exhibit 10.11

October 3, 2013

Susan Brennan

Dear Susan:

I am pleased to conditionally offer you the position of Chief Operations Officer, (HR title: Chief Operations Officer. EXEC2) with Bloom Energy Corporation (the “Company”). In this full-time, exempt position, you will report to KR Sridhar and will be based out of our Sunnyvale Corporate Headquarters. Your annual starting salary will be $280,000 less applicable withholdings and deductions, and you will be paid semi-monthly in accordance with the Company’s normal payroll practices. Pursuant to the terms of the Quarterly Incentive Program Policy, you are eligible to receive an annual discretionary bonus which is a 50% target of your salary and is paid quarterly.

The Company will also pay for all actual relocations expenses including, but not limited to: packing, unpacking, shipment, movement of household goods, vehicles, and any travel related to relocation for you and your family. This does not include any expenses related to buying and selling of your residence.

We will recommend that the Company’s Board of Directors grant you an option to purchase 200,000 shares of the Company’s Common Stock at a share price equal to the Common Stock’s fair market value on the date of grant. The vest commencement date of the shares subject to this grant will be the date your employment commences. The grant is subject to your continued employment with the Company. Your stock options will vest over five years as follows: 20% of your shares will vest on your first anniversary date of employment, and 1/60 of your shares will vest each of the 48 months thereafter.

You will also be eligible to receive benefits that the Company generally provides to its employees, consistent with the eligibility terms of those programs. A more detailed description of these benefits will be provided to you upon joining the Company.

Your offer of employment is conditioned upon a satisfactory (in the Company’s discretion) reference check and background check, and upon proof of your right to work in the US. Your employment with the Company is further subject to the terms and conditions specified in “Attachment A” to this letter. Orientation and training for new employees are on Mondays so, if you choose to accept this offer of employment, please return your offer letter by the Wednesday prior to your Monday start date.

This letter, Attachment A and the attached October 3, 2013 letter regarding relocation set forth the terms of your employment with the Company and supersede any prior representations or agreements including, but not limited to, any representations made during your recruitment, interviews or pre-employment negotiations, whether written or oral. This letter and its attachments may not be modified or amended except by a written agreement signed by the President of the Company and you.

We are very excited about you joining our team and look forward to a mutually rewarding relationship.

1252 Orleans Drive, Sunnyvale, CA 94089 T 408 543 1500 F408 543 1501 www.bloomenergy.com

By signing below you are accepting the Company’s offer of employment pursuant to the terms and conditions specified in this letter and in, Attachment A and the attached October 3, 2013 letter regarding relocation. After signing and dating this letter below, please return all pages by email, mail, or to our confidential fax (408-543-1505).

Sincerely	Agreed to and accepted by::*
/s/ David Barber
	Signature:	/s/ Susan Brennan
David Barber	Print Name:	Susan Brennan
Vice President, Human Resources
Bloom Energy Corporation	Date:	October 21, 2013
	Start Date:	Based on comments below
		11/7/2013

* Susan Brennan’s acceptance of the Company’s offer of employment is contingent upon the written confirmation of the Company’s satisfaction or waiver of the reference check and other pre-conditions to Susan Brennan’s employment with Bloom Energy, and the Company’s Board of Directors’ grant of the stock options referenced above, by October 31, 2013.

1252 Orleans Drive, Sunnyvale, CA 94089 T 408 543 1500 F408 543 1501 www.bloomenergy.com

ATTACHMENT A

In addition to the terms outlined in the attached offer letter, your employment at Bloom Energy is conditioned upon the following.

At-Will Employment. You will be an “at will” employee of the Company. This means that either you or the Company may terminate your employment at any time, for any reason or no reason, with our without cause or notice. Regular employment at the Company is for no specified period of time and the Company makes no guarantee or contract of continued employment. Although your job duties, title, compensation, and benefits, as well as the Company’s personnel policies, may change from time to time, the “at will” nature of your employment may not be changed except in an express written agreement signed by you and the President of the Company. In the event that you choose to resign from the Company, we request that you give us at least two weeks notice.

Stock Options. If approved by the Board, your stock options will be subject to the terms and conditions of the Company’s Stock Option Plan and Stock Option Agreement, including vesting requirements. You will be provided with a copy of the Stock Option Plan and Stock Option Agreement following the Board’s approval of your grant. No right to any stock is earned or accrued until such time that vesting occurs, nor does the grant confer any right to continued vesting or employment.

Annual Bonus. Your annual bonus is subject to the discretion and approval of the Board of Directors and will be paid in accordance with the Company’s normal bonus payment practices. Your bonus is a percentage of base pay earned during the calendar year. Therefore your bonus in the first year will be prorated based upon your first date of regular employment, and will be prorated in the event you take an unpaid leave of absence. To be eligible, you must be a regular employee at calendar yearend and have been an active regular employee for at least 30 days during the calendar year.

Relocation. We will be pleased to pay for reasonable moving expenses up to the maximum described in this offer letter. After your move is completed, please submit a Moving Expense Report to Accounting, detailing your expenses with all receipts. Reimbursements for moving expenses may be either non-taxable (deductible) or taxable (non-deductible), depending on their classification as described in IRS Publication 521. In general, the IRS permits only costs to move your household goods and one way travel for members of your household to be nontaxable. The IRS considers all other expenses to be taxable fringe benefits, and they will be added to your payroll wages for payment of taxes in the month following your moving expense reimbursement. Should you have questions, our accounting department would be pleased to discuss this with you.

In consideration of the investment made by the Company for your relocation, you agree to refund your relocation reimbursement in full to the Company in the event that, prior to your first anniversary of employment with the Company, you voluntarily terminate your employment or are terminated by the Company for cause.

References, The Company reserves the right to conduct background investigations and/or reference checks on all of its potential employees. Your job offer, therefore, is contingent upon a clearance of such a background investigation and/or reference check, if any.

Right to Work. For purposes of federal immigration law, you will be required to provide to the Company documentary evidence of your identity and eligibility for employment in the United States. Such documentation must be provided to us within three (3) business days of your date of hire, or our employment relationship with you may be terminated.

Prior Employment. We also ask that, if you have not already done so, you disclose to the Company any and all agreements relating to your prior employment that may affect your eligibility to be employed by the Company or limit the manner in which you may be employed. It is the Company’s understanding that any such agreements will not prevent you from performing the duties of your position and you represent that such is the case. Moreover, you agree that, during the term of your employment with the Company, you will not engage in any other employment, occupation, consulting or other business activity directly related to the business in which the Company is now involved or becomes

1252 Orleans Drive, Sunnyvale, CA 94089 T 408 543 1500 F408 543 1501 www.bloomenergy.com

involved during the term of your employment, nor will you engage in any other activities that conflict with your obligations to the Company. Similarly, you agree not to bring any third party confidential information to the Company, including that of your former employer, and that in performing your duties for the Company you will not in any way utilize any such information.

Company Policies. As a Company employee, you will be expected to abide by the Company’s rules and standards. Specifically, you will be required to sign an acknowledgment that you have read and that you understand the Company’s rules of conduct which are included in the Company Handbook.

Intellectual Property. As a condition of your employment, you are also required to sign and comply with the Company’s “Employment, Confidential Information, Invention Assignment and Arbitration Agreement,” which requires, among other provisions, the assignment of patent rights to any invention made during your employment at the Company, and non-disclosure of Company proprietary information. Please note that we must receive your signed Agreement on your first day of employment.

Arbitration, (a) Any dispute or controversy arising out of or relating to your employment relationship with the Company, will be settled by final and binding arbitration by a single arbitrator to be held in Santa Clara County, California, in accordance with the American Arbitration Association national rules for resolution of employment disputes then in effect, except as provided herein. The arbitrator selected shall have the authority to grant any party all remedies otherwise available by law, including injunctions, but shall not have the power to grant any remedy that would not be available in a state or federal court in California. The arbitrator shall be bound by and shall strictly enforce the terms of this section and may not limit, expand or otherwise modify its terms. The arbitrator shall make a good faith effort to apply the substantive law (and the law of remedies, if applicable) of the state of California, or federal law, or both, as applicable, without reference to its conflicts of laws provisions, but an arbitration decision shall not be subject to review because of errors of law. The arbitrator is without jurisdiction to apply any different substantive law. The arbitrator shall have the authority to hear and rule on dispositive motions (such as motions for summary adjudication or summary judgment). The arbitrator shall have the powers granted by California law and the rules of the American Arbitration Association which conducts the arbitration, except as modified or limited herein.

(b) Notwithstanding anything to the contrary in the rules of the American Arbitration Association, the arbitration shall provide (i) for written discovery and depositions as provided in California Code of Civil Procedure Section 1283.05 and (ii) for a written decision by the arbitrator that includes the essential findings and conclusions upon which the decision is based which shall be issued no later than thirty (30) days after a dispositive motion is heard and/or an arbitration hearing has completed. Except in disputes where you assert a claim otherwise under a state or federal statute prohibiting discrimination in employment (“a Statutory Discrimination Claim”), the Company shall pay all fees and administrative costs charged by the arbitrator and American Arbitration Association. In disputes where you assert a Statutory Discrimination Claim against the Company, you are required to pay the American Arbitration Association’s filing fee only to the extent such filing fee does not exceed the fee to file a complaint in state or federal court. The Company shall pay the balance of the arbitrator’s fees and administrative costs.

(c) You and the Company shall have the same amount of time to file any claim against any other party as such party would have if such a claim had been filed in state or federal court. In conducting the arbitration, the arbitrator shall follow the rules of evidence of the State of California (including but not limited to all applicable privileges), and the award of the arbitrator must follow California and/or federal law, as applicable.

(d) The arbitrator shall be selected by the mutual agreement of the parties. If the parties cannot agree on an arbitrator, the parties shall alternately strike names from a list provided by the American Arbitration Association until only one name remains.

(e) The decision of the arbitrator will be final, conclusive and binding on the parties to the arbitration. The prevailing party in the arbitration, as determined by the arbitrator, shall be entitled to recover her or its reasonable attorneys’ fees and costs, including the costs or fees charged by the arbitrator and the American Arbitration Association. In disputes where you assert a Statutory Discrimination Claim, reasonable attorneys’ fees shall be awarded by the arbitrator based on the same standard as such fees would be awarded if the Statutory Discrimination Claim had been asserted in state or federal court. Judgment may be entered on the arbitrator’s decision in any court having jurisdiction.

1252 Orleans Drive, Sunnyvale, CA 94089 T 408 543 1500 F408 543 1501 www.bloomenergy.com

October 3, 2013

Susan Brennan

address

Susan,

The letter will serve as an addendum to your offer of employment dated October 3, 2013 and your agreement with KR Sridhar with respect to your relocation to Bloom Headquarters in California. In addition to the terms of your formal offer, you and the Company have agreed to the following:

Based on a clear understanding by both parties, the Brennan family relocation will be trailing Susan’s move to Sunnyvale by approximately 8 months to accommodate the sale of her residence in Tennessee, the completion of the 2013/2014 school year and the general movement of household goods. This “trailing relocation” will be completed by end of June, 2014. During this time, Susan will maintain regular working hours and travel schedule related to her position and be based out of the Bloom Energy Sunnyvale office.

The above is effective on the date of your employment. Please let me know if you have any questions on the information in this addendum.

/s/ David Barber

David Barber

EX-10

[***] Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

Exhibit 10.12

SECOND AMENDED AND RESTATED

LIMITED LIABILITY COMPANY AGREEMENT

OF

DIAMOND STATE GENERATION HOLDINGS, LLC

dated as of March 20, 2013

TABLE OF CONTENTS

		Page
ARTICLE I	DEFINITIONS		2
Section 1.1	Definitions		2
ARTICLE II	CONTINUATION; OFFICES; TERM		2
Section 2.1	Continuation of the Company		2
Section 2.2	Name, Office and Registered Agent		2
Section 2.3	Purpose		2
Section 2.4	Term		3
Section 2.5	Organizational and Fictitious Name Filings; Preservation of Limited Liability		3
Section 2.6	No Partnership Intended		3
ARTICLE III	RIGHTS AND OBLIGATIONS OF THE MEMBERS		3
Section 3.1	Membership Interests		3
Section 3.2	Actions by the Members		4
Section 3.3	Management Rights		5
Section 3.4	Other Activities		6
Section 3.5	No Right to Withdraw		6
Section 3.6	Limitation of Liability of Members		6
Section 3.7	Liability for Deficits		8
Section 3.8	Company Property		8
Section 3.9	Retirement, Resignation, Expulsion, Incompetency, Bankruptcy or Dissolution of a Member		8
Section 3.10	Withdrawal of Capital		8
Section 3.11	Representations and Warranties		8
Section 3.12	Covenants		10
Section 3.13	Deferred Obligations		11
Section 3.14	Events of Default		11
Section 3.15	Matters Pertaining to the Grant		11
Section 3.16	Separateness		13

i

ARTICLE IV	CAPITAL CONTRIBUTIONS; CAPITAL ACCOUNTS	14
Section 4.1	Capital Contributions	14
Section 4.2	Capital Accounts	15
Section 4.3	Equity Contributions to Project Company	17
Section 4.4	Conditions Precedent to Equity Contributions by Company	17
Section 4.5	Member Loans	20
ARTICLE V	ALLOCATIONS	21
Section 5.1	Allocations	21
Section 5.2	Adjustments	21
Section 5.3	Tax Allocations	23
Section 5.4	Transfer or Change in Company Interest	23
Section 5.5	Timing of Allocations	24
ARTICLE VI	DISTRIBUTIONS	24
Section 6.1	Distributions	24
Section 6.2	Withholding Taxes	24
Section 6.3	Limitation upon Distributions	25
Section 6.4	No Return of Distributions	25
Section 6.5	Calculation of Internal Rate of Return	25
Section 6.6	Satisfaction of Recapture-Related Obligations of the Class A Members to the Class B Member	26
Section 6.7	Satisfaction of Certain Recapture-Related Obligations of the Class B Member to the Class A Members	27
Section 6.8	Satisfaction of Certain Recapture-Related Obligations of the Company or the Project Company	27
Section 6.9	Class A Recapture Events Prior to Receipt of Grant	28
Section 6.10	Repayment	28
ARTICLE VII	ACCOUNTING AND RECORDS	29
Section 7.1	Reports	29
Section 7.2	Books and Records and Inspection	30
Section 7.3	Bank Accounts, Notes and Drafts	31
Section 7.4	Financial Statements	32
Section 7.5	Partnership Status and Tax Elections	33
Section 7.6	Company Tax Returns	34
Section 7.7	Tax Audits	35
Section 7.8	Cooperation	36
Section 7.9	Fiscal Year	37

ii

ARTICLE VIII	MANAGEMENT	37
Section 8.1	Management	37
Section 8.2	Managing Member	37
Section 8.3	Major Decisions	39
Section 8.4	Insurance	39
Section 8.5	Notice of Material Breach	39
ARTICLE IX	TRANSFERS, CHANGES OF CONTROL AND INDEMNIFICATION	40
Section 9.1	Prohibited Transfers	40
Section 9.2	Conditions to Transfers of Class A Membership Interests or Changes of Control of Managing Member	40
Section 9.3	Conditions to Transfers of Class B Membership Interests	42
Section 9.4	Conditions to Changes of Control of Upstream Entities	43
Section 9.5	Certain Permitted Transfers	44
Section 9.6	[Intentionally omitted]	45
Section 9.7	Purchase Option	45
Section 9.8	Sale Option	46
Section 9.9	Regulatory and Other Authorizations and Consents	47
Section 9.10	Admission	48
Section 9.11	Security Interest Consent	48
Section 9.12	Indemnification; Other Rights of the Members	49
Section 9.13	Indemnification of Members by the Company	50
Section 9.14	Direct Claims	50
Section 9.15	Third Party Claims	50
Section 9.16	No Duplication	52
Section 9.17	Sole Remedy	52
Section 9.18	Survival	52
Section 9.19	Final Date for Assertion of Indemnity Claims	52
Section 9.20	Reasonable Steps to Mitigate	52
Section 9.21	Net of Insurance Benefits	53
Section 9.22	No Consequential Damages	53
Section 9.23	Payment of Indemnification Claims	53
Section 9.24	Repayment; Subrogation	53

iii

ARTICLE X	DISSOLUTION AND WINDING-UP	54
Section 10.1	Events of Dissolution	54
Section 10.2	Distribution of Assets	54
Section 10.3	In-Kind Distributions	55
Section 10.4	Certificate of Cancellation	55
ARTICLE XI	MISCELLANEOUS	56
Section 11.1	Notices	56
Section 11.2	Amendment	56
Section 11.3	Partition	56
Section 11.4	Waivers and Modifications	56
Section 11.5	Severability	57
Section 11.6	Successors; No Third-Party Beneficiaries	57
Section 11.7	Entire Agreement	57
Section 11.8	Governing Law	57
Section 11.9	Further Assurances	58
Section 11.10	Counterparts	58
Section 11.11	Dispute Resolution	58
Section 11.12	Confidentiality	59
Section 11.13	Joint Efforts	60
Section 11.14	Specific Performance	61
Section 11.15	Survival	61
Section 11.16	Effective Date	61
Section 11.17	Recourse Only to Member	61

iv

ANNEXES

Annex I	Definitions
Annex II	Class B Membership Interests

SCHEDULES

Schedule 4.2(b)	Contributed Property
Schedule 4.2(d)	Capital Account Balance and Percentage Interest of each Member
Schedule 8.2(e)	Officers
Schedule 8.4	Insurance
Schedule 9	Transfer Representations and Warranties

EXHIBITS

Exhibit A	Form of Class A Membership Interests Certificate
Exhibit B	Form of Class B Membership Interests Certificate
Exhibit C	Form of Operations Report
Exhibit D	Form of Assignment Agreement
Exhibit E	Form of Equity Contribution Notice
Exhibit F	Base Case Model

v

SECOND AMENDED AND RESTATED

LIMITED LIABILITY COMPANY AGREEMENT

OF

DIAMOND STATE GENERATION HOLDINGS, LLC

Second Amended and Restated Limited Liability Company Agreement of Diamond State Generation Holdings, LLC, a Delaware limited liability company (the “Company”), dated as of March 20, 2013 by and among Clean Technologies II, LLC, a Delaware limited liability company (“Clean Technologies”) and [***] Inc., a Delaware corporation (“[***]”).

Preliminary Statements

WHEREAS, the Company was formed by virtue of its certificate of formation filed with the Secretary of State of the State of Delaware on July 20, 2011 (the “Certificate of Formation”), and, prior to the date hereof, has been governed by the Amended and Restated Limited Liability Company Agreement of the Company, dated as of April 13, 2012, executed by Clean Technologies and [***] as the members of the Company (the “2012 Operating Agreement”);

WHEREAS, the Company owns 100% of the issued and outstanding membership interests in Diamond State Generation Partners, LLC (the “Project Company”), which intends to acquire and own a portfolio of Systems having an aggregate nameplate capacity of up to 30 MW to be operated in accordance with the Tariffs and the REPS Act (collectively, the “Portfolio” or the “Project”);

WHEREAS, pursuant to the Equity Capital Contribution Agreement among the Company, the Project Company, Clean Technologies and [***], dated as of March 16, 2012 (as amended, amended and restated, supplemented or modified, the “ECCA”), Clean Technologies agreed to make a capital contribution to the Company on or before the Initial Funding Date, and [***] agreed to make a capital contribution to the Company in return for the issuance of Class B Membership Interests in the Company on the Initial Funding Date, subject to the terms and conditions as provided therein; and

WHEREAS, Clean Technologies and [***] desire for the 2012 Operating Agreement to be amended and restated as stated herein.

NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree, notwithstanding any contrary provision of the 2012 Operating Agreement, effective as of the date hereof, that:

A. the issuance of Class B Membership Interests to [***] pursuant to the ECCA is approved and is a Permitted Transfer for purposes of this Agreement;

[***] Confidential Treatment Requested

B. [***] continues as a Member of the Company, holding the Class B Membership Interests in the amount (and percentage) next to its name in Annex II;

C. Clean Technologies continues as a Member of the Company, holding all of the issued and outstanding Class A Membership Interests;

D. Clean Technologies and [***] are the sole Members of the Company; and

E. the 2012 Operating Agreement is amended and restated in its entirety as described herein.

ARTICLE I

DEFINITIONS

Section 1.1 Definitions. Capitalized terms used but not otherwise defined in this Agreement have the meanings given to such terms in Annex I.

ARTICLE II

CONTINUATION; OFFICES; TERM

Section 2.1 Continuation of the Company. The Members hereby acknowledge the continuation of the Company as a limited liability company pursuant to the Act, the Certificate of Formation and this Agreement.

Section 2.2 Name, Office and Registered Agent.

(a) The name of the Company will be “Diamond State Generation Holdings, LLC” or such other name or names as complies with law and may be determined by the Managing Member from time to time and notified to the Members. The principal office of the Company shall be located at 1299 Orleans Drive, Sunnyvale, California 94089. The Managing Member may change the location of the principal office of the Company to another location, provided that the Managing Member gives prompt written notice of any such change to the registered agent of the Company and all Members.

(b) The registered office of the Company in the State of Delaware is located at c/o Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The registered agent of the Company for service of process at such address is Corporation Service Company. The registered office and registered agent may be changed by the Managing Member at any time in accordance with the Act, provided that the Managing Member gives prompt written notice of any such change to all Members. The registered agent’s primary duty as such is to forward to the Company at its principal office and place of business any notice that is served on it as registered agent.

Section 2.3 Purpose. The nature of the business or purpose to be conducted or promoted by the Company is: (i) to acquire, own, hold or dispose of the membership interests in

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the Project Company; (ii) to engage in the transactions contemplated by the Transaction Documents; (iii) to engage, through the Project Company, in the acquisition and operation of the Systems in accordance with the Transaction Documents; (iv) to engage, through the Project Company, in the business of generating and delivering to the PJM Grid, electricity, capacity, ancillary services and environmental attributes from the Systems in accordance with the Transaction Documents; and (v) to engage in any lawful act or activity, enter into any agreement and to exercise any powers permitted to limited liability companies organized under the Act in each case that are incidental to or necessary, suitable or convenient for the accomplishment of the purposes specified above.

Section 2.4 Term. The term of the Company commenced on July 20, 2011 and shall continue until the Company is dissolved in accordance with the terms hereof or as otherwise provided by law (the “LLC Agreement Termination Date”).

Section 2.5 Organizational and Fictitious Name Filings; Preservation of Limited Liability. The Managing Member shall cause the Company to register as a foreign limited liability company and file such fictitious or trade names, statements or certificates in such jurisdictions and offices as are necessary or appropriate for the conduct of the Company’s operation of its business. The Managing Member may take any and all other actions as may be reasonably necessary or appropriate to perfect and maintain the status of the Company as a limited liability company or similar type of entity under the laws of Delaware and any other state or jurisdiction other than Delaware in which the Company engages in business and continue the Company as a limited liability company and to protect the limited liability of the Members as contemplated by the Act.

Section 2.6 No Partnership Intended. The Members intend that the Company not be a partnership, limited partnership, joint venture or other arrangement other than for tax purposes under the Code, the applicable Treasury Regulations and any state, municipal or other income tax law or regulation, and this Agreement shall not be construed to suggest otherwise.

ARTICLE III

RIGHTS AND OBLIGATIONS OF THE MEMBERS

Section 3.1 Membership Interests.

(a) The Membership Interests comprise [***] Class A Membership Interests, all of which are issued and held by Clean Technologies, and [***] Class B Membership Interests, all of which are issued and held by [***].

(b) The Class A Membership Interests and the Class B Membership Interests shall (i) have the rights and obligations ascribed to such Membership Interests in this Agreement and the Act; (ii) be evidenced solely by certificates in the forms annexed hereto as Exhibit A and Exhibit B, respectively, or such other form as may be prescribed from time to time by any Legal Requirements; provided, that certificates evidencing the Class A Membership Interests and the Class B Membership Interests which were issued in the forms annexed to the 2012 Operating

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Agreement prior to the date hereof shall continue to be valid; (iii) be recorded in a register of Membership Interests, which register the Managing Member shall cause the Administrator to maintain; (iv) be transferable only on recordation of such Transfer in the register of Membership Interest, which recordation the Managing Member shall cause the Administrator to make, upon compliance with the provisions of Article IX hereof and upon presentation of the certificates duly endorsed for Transfer, or accompanied by assignment documentation in accordance with Article IX; (v) be “securities” governed by Article 8 of the UCC in any jurisdiction (x) that has adopted revisions to Article 8 of the UCC substantially consistent with the 1994 revisions to Article 8 adopted by the American Law Institute and the National Conference of Commissioners on Uniform State Laws and (y) whose laws may be applicable, from time to time, to the issues of perfection, the effect of perfection or non-perfection, and the priority of a security interest in Membership Interests in the Company; and (vi) be personal property.

(c) The Company shall be entitled to treat the registered holder of a Membership Interest, as shown in the register of Membership Interests referred to in Section 3.1 (b), as the Member for all purposes of this Agreement, except that the Administrator may record in the register of Membership Interest any security interest of a secured party pursuant to any security interest permitted by this Agreement.

(d) If a Member transfers all of its Membership Interest to another Person pursuant to and in accordance with the terms in Article IX, the transferor shall automatically cease to be a Member.

Section 3.2 Actions by the Members.

(a) Except as otherwise permitted by this Agreement (including Section 3.2(e) below), all actions of the Members shall be taken at meetings of the Members which may be called by any Member for any reason and shall be called by the Managing Member within 10 days following the written request of a Member. The Members may conduct any Company business at any such meeting that is permitted under the Act or this Agreement. Meetings shall be at a reasonable time and place. Accurate minutes of any meeting shall be taken and filed with the minute books of the Company. Following each meeting, the minutes of the meeting shall be sent promptly to each Member.

(b) Members may participate in any meeting of the Members by means of conference telephone or other communications equipment so that all persons participating in the meeting can hear each other or by any other means permitted by law. Such participation shall constitute presence in person at such meeting.

(c) The presence in person or by proxy of Members owning more than 50% of the aggregate Class A Membership Interests and more than 50% of the aggregate Class B Membership Interests shall constitute a quorum for purposes of transacting business at any meeting of the Members; provided that, in the event that a quorum is not present or otherwise represented at a meeting of the Members duly called in accordance with this Section 3.2, the Members present at such meeting shall have the power to adjourn such meeting and to call

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another meeting no fewer than 10 days nor more than 15 days from such meeting (and notice thereof shall be promptly provided to all Members by the Managing Member) and the Members present at such second meeting shall constitute a quorum. For the avoidance of doubt, no Major Decision shall be agreed at any meeting, or otherwise taken, without a Class Majority Vote.

(d) Written notice stating the place, day and hour of the meeting of the Members, and the purpose or purposes for which the meeting is called, shall be delivered by or at the direction of the Managing Member or of the Member calling such meeting, to each Member of record entitled to vote at such meeting not less than five Business Days nor more than 30 days prior to the meeting. Notwithstanding the foregoing, meetings of the Members may be held without notice so long as all the Members are present in person or by proxy.

(e) Any action may be taken by the Members without a meeting if such action is authorized or approved by the written consent of Members representing sufficient Membership Interests to authorize or approve such action pursuant to this Agreement. The Members may conduct any Company business or take any action required of Members under this Agreement through written consent. Where action is authorized by written consent no prior notice is required and no meeting of Members needs to be called or noticed. A copy of any action taken by written consent must be sent promptly to all Members and all actions by written consent shall be filed with the minute books of the Company.

(f) Each Class A Membership Interest and each Class B Membership Interest shall be entitled to one vote for purposes of any vote, consent or approval of Members required under this Company LLC Agreement or the Act. With respect to those matters required or permitted to be voted upon by the Members, or for which a consent or approval of Members is required or permitted, the affirmative vote, consent or approval of Members owning more than 50% of the outstanding Membership Interests (the “Majority Vote”) shall be required to authorize or approve any such matter; provided that for Major Decisions (such term being used as defined prior to, or following, the Flip Date, as the case may be) the affirmative vote, consent or approval of more than 50% of the outstanding Class A Membership Interests and of more than 50% of the outstanding Class B Membership Interests shall be required to authorize or approve such Major Decision in addition to any other approval required by this Agreement or the Act (a “Class Majority Vote”). Except as otherwise expressly provided in this Agreement, no separate vote, consent or approval of either Class A Members acting as a class, or Class B Members acting as a class, shall be required to authorize or approve any matter for which a vote, consent or approval of Members is required under this Agreement.

Section 3.3 Management Rights. No Member other than the Managing Member shall have any right, power or authority to take part in the management or control of the business of, or transact any business for, the Company, to sign for or on behalf of the Company or to bind the Company in any manner whatsoever. Except as otherwise provided herein, the Managing Member shall not hold out or represent to any third party that any other Member has any such power or right or that any Member is anything other than a member in the Company. A Member, other than a Member who is the Managing Member, shall not be deemed to be

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participating in the control of the business of the Company by virtue of its possessing or exercising any rights set forth in this Agreement or the Act or any other agreement relating to the Company.

Section 3.4 Other Activities. Notwithstanding any duty otherwise existing at law or in equity, any Member or the Administrator may engage in or possess an interest in other business ventures of every nature and description, independently or with others, even if such activities compete directly with the business of the Company, and neither the Company nor any of the Members shall have any rights by virtue of this Agreement in and to such independent ventures or any income, profits or property derived from them.

Section 3.5 No Right to Withdraw. Except in the case of Transfers in accordance with Article IX, no Member shall have any right to resign voluntarily or otherwise withdraw from the Company without the prior written consent of each of the remaining Members of the Company in their sole and absolute discretion.

Section 3.6 Limitation of Liability of Members.

(a) Each Member and its officers, directors, shareholders, Affiliates, employees and agents (each a “Member Party”) shall (i) have liability limited as described in the Act and other applicable Legal Requirements and (ii) be exculpated from liability for and defended, indemnified and held harmless by the Company from any and all judgments, awards, causes of action, lawsuits, suits, proceedings, governmental investigations or audits, losses (including amounts paid in settlement of claims), assessments, fines, penalties, administrative orders or injunctions (including any loss of profits, consequential, punitive, incidental or special damages recovered by any Person other than a Member or an Affiliate of a Member), including interest, penalties, reasonable attorney’s fees, disbursements and costs of investigations, deficiencies, levies, duties and imposts (“Claims”) arising out of the performance by such Member Party of its obligations under this Agreement so long as (A) the Member Party acted in good faith and in a manner reasonably believed by it to be in the best interest of or not opposed to the interest of the Company or the Project Company, as applicable, and (B) the Member Party’s actions did not constitute willful misconduct, fraud or gross negligence or willful breach of any of its covenants under the Transaction Documents. Except as otherwise required by the Act, the debts, obligations and liabilities of the Company, whether arising in contract, tort or otherwise, shall be the debts, obligations and liabilities solely of the Company, and the Members of the Company shall not be obligated personally for any of such debts, obligations or liabilities solely by reason of being a Member of the Company.

(b) Each of the Members shall be fully protected in relying in good faith upon the records of the Company and upon such information, opinions, reports or statements presented to the Company by any other Person who is a Member, the Administrator or any officer or employee of the Company, or by any other individual as to matters that such Member reasonably believes are within such other Person’s professional or expert competence, including information, opinions, reports or statements as to the value and amount of the assets, liabilities, profits or losses of the Company or any other facts pertinent to the existence and amount of assets from which distributions to the Members might properly be paid.

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(c) To the extent that, at law or in equity, a Member, in its capacity as a member or manager of the Company or otherwise, has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member or other Person bound by this Agreement, such Member, acting under this Agreement shall not be liable to the Company or to any Member or other Person bound by this Agreement for its good faith reliance on the provisions of this Agreement; provided that this Section 3.6(c) shall not be construed to limit obligations or liabilities therefor, in each case as expressly stated in this Agreement or any other Transaction Document. The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Member, in its capacity as a member or manager of the Company, otherwise existing at law or in equity, are agreed by the Members to replace such other duties and liabilities of such Member.

(d) Clean Technologies, in its capacity as Managing Member, shall not have any liability for breach of contract (except as provided in (i) and (ii) below) or breach of duties (including fiduciary duties) of a member or manager to the Company or to any Member or other Person that is a party to or is otherwise bound by this Agreement, in each case, to the fullest extent permitted by the Act; provided that (i) this Agreement shall not limit or eliminate liability for any (x) obligations expressly imposed on Clean Technologies, as Managing Member, pursuant to this Agreement or any other Transaction Document, (y) act or omission that constitutes a bad faith violation of the implied contractual covenant of good faith and fair dealing or (z) act or omission arising from the gross negligence, willful misconduct or fraud of Clean Technologies and (ii) this Section 3.6(d) shall not limit or eliminate liabilities expressly stated in this Agreement or any other Transaction Document.

(e) Except as otherwise provided in Section 6.1 of the ECCA or Section 9.12 hereof with respect to liability resulting from fraud or willful misconduct, or with respect to its failure to pay any amount due to Investor Indemnified Parties under the Transaction Documents, Clean Technologies, in its capacity as Managing Member, shall have no liability of any kind to the Members under this Agreement for monetary damages in an amount that would exceed its aggregate obligation to indemnify the Investor Indemnified Parties pursuant to Section 9.12.

(f) Clean Technologies, in its capacity as a Member or Managing Member, shall not have any liability to the Company, any Class B Member or any other Person bound by this Agreement for damages resulting from a breach or breaches by (i) the Administrator resulting from or arising out of the Administrator’s performance of its obligations under the Administrative Services Agreement, (ii) the Operator of any of its obligations, covenants or agreements under the MOMA, except to the extent that Clean Technologies is the Managing Member and it is finally determined by a court of competent jurisdiction (not subject to appeal, or not appealed) that Clean Technologies, as Managing Member, has failed to perform its supervisory obligations hereunder with respect to the Administrative Services Agreement or MOMA in a manner consistent with the definition of “Prudent Operator Standard”.

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Section 3.7 Liability for Deficits. None of the Members shall be liable to the Company for any deficit in its Capital Account, nor shall such deficits be deemed assets of the Company, except to the extent otherwise provided by law with respect to third-party creditors of the Company.

Section 3.8 Company Property. All property owned by the Company, whether real or personal, tangible or intangible and wherever located, shall be deemed to be owned by the Company, and no Member, individually, shall have any ownership of such property.

Section 3.9 Retirement, Resignation, Expulsion, Incompetency, Bankruptcy or Dissolution of a Member. The retirement, resignation, expulsion, Bankruptcy or dissolution of a Member shall not, in and of itself, dissolve the Company. The successors in interest to the bankrupt Member shall, for the purpose of settling the estate, have all of the rights of such Member, including the same rights and subject to the same limitations that such Member would have had under the provisions of this Agreement to Transfer its Membership Interest. A successor in interest to a Member shall not become a substituted Member except as provided in this Agreement.

Section 3.10 Withdrawal of Capital. No Member shall have the right to withdraw capital from the Company or to receive or demand distributions (except distributions described in Article VI) or return of its Capital Contributions until the Company is dissolved in accordance with this Agreement and applicable provisions of the Act; provided, however, that in the event that a Capital Contribution has been made by a Class B Member, such Class B Member shall be entitled to a return of its Capital Contribution if such Capital Contribution has not been drawn upon in full by the Project Company in accordance with Sections 4.3 and 4.4 hereof within six months following the date of such Capital Contribution, unless otherwise agreed to in writing by such Class B Member. No Member shall be entitled to demand or receive any interest on its Capital Contributions.

Section 3.11 Representations and Warranties.

(a) Each Member hereby represents and warrants to the Company and each other Member that the following statements are true and correct as of the date it becomes a Member (both immediately before and after it becomes a Member):

(i) That the Member is duly incorporated, organized or formed (as applicable), validly existing, and (if applicable) in good standing under the law of the jurisdiction of its incorporation, organization of formation; if required by applicable law, that Member is duly qualified and in good standing in the jurisdiction of its principal place of business, if different from its jurisdiction of incorporation, organization or formation; and that the Member has full power and authority to execute and deliver this Agreement and to perform its obligations hereunder, and all necessary actions by the board of directors, shareholders, managers, members, partners, trustees, beneficiaries, or other applicable Persons necessary for the due authorization, execution, delivery, and performance of this Agreement by that Member have been duly taken.

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(ii) That the Member has duly executed and delivered this Agreement and the other documents contemplated herein, and they constitute the legal, valid and binding obligation of that the Member enforceable against it in accordance with their terms (except as may be limited by Bankruptcy, insolvency or similar Applicable Laws of general application and by the effect of general principles of equity, regardless of whether considered at law or in equity).

(iii) That the Member’s authorization, execution, delivery, and performance of this Agreement does not and will not (A) conflict with, or result in a breach, default or violation of, (I) the organizational documents of such Member, (II) any contract or agreement to which the Member is a party or is otherwise subject, or (III) any law, rule, regulation, order, judgment, decree, writ, injunction or arbitral award to which the Member is subject; or (B) require any consent, approval or authorization from, filing or registration with, or notice to, any Governmental Authority or other Person, except (w) for such consents, approvals, authorizations, registrations or notices that have already been received, delivered or filed, (x) for notices required to be delivered that (1) are regulatory or reporting in nature, (2) are not required to be delivered or filed until after the Initial Funding Date and (3) would not reasonably be expected to have a material adverse effect on the ability of such Member to perform its obligations under this Agreement, (y) that [***] of which [***] is a wholly owned indirect subsidiary as of the Initial Funding Date, may be required to file a report pursuant to 12 CFR 225.175(c)(2) with the Board of Governors of the Federal Reserve System, and (z) for such notices as any Member or its affiliates may be required to file with FERC pursuant to Section 205 of the Federal Power Act and notice filings required after acquiring an interest in the Company.

(iv) That the Member is a “United States person,” as defined in Section 7701(a)(30) of the Code.

(b) Each Member represents and warrants to the Company and each other Member that (i) the Member is an “Accredited Investor” as such term is defined in Regulation D under the Securities Act of 1933, (ii) the Member has had a reasonable opportunity to ask questions of and receive answers from the Company concerning, the Membership Interests and the Company and all such questions have been answered to the full satisfaction of that Member, (iii) the Member understands that the Membership Interests have not been registered under the Securities Act in reliance on an exemption therefrom, and that the Company is under no obligation to register the Membership Interests, (iv) the Member will not transfer the Membership Interests in violation of the Securities Act or any other applicable securities laws and (v) the Member is purchasing the Membership Interests for its own account and not for the account of any other Person and not with a view to distribution or resale to others.

(c) Each Member represents and warrants to the Company and each other Member that the Member is not a Disqualified Person.

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(d) Each Member represents and warrants to the Company and each other Member that the Member is not a tax-exempt entity within the meaning of Section 168(h) of the Code.

(e) Each Member represents and warrants to the Company and each other Member that it has not taken any action that would cause the assets of the Company or the Project Company to become subject to the alternative depreciation system within the meaning of Section 168(g) of the Code.

Section 3.12 Covenants.

(a) Each Member covenants to the Company and each other Member that it will be a “United States person,” as defined in Section 7701(a)(30) of the Code.

(b) The Managing Member covenants to the Company and each other Member that (i) all electricity produced by the Systems will be through the use of qualified fuel cell property and (ii) no part of the assets of the Company or the Project Company is or will be used predominantly outside of the United States.

(c) The Managing Member covenants to cause the Company to cause the Project Company to elect a Grant (to the extent such election is available) with respect to the Systems. If the Grant is not available with respect to certain Systems as determined in Section 7.5(b)(i), the Managing Member covenants to cause the Company to cause the Project Company to elect or claim under an Alternative Tax Program as described in Section 7.5(b)(i).

(d) The Managing Member covenants to use commercially reasonable efforts, in Consultation with Class B Member, to structure the contracts and business affairs of the Project Company in a way that is intended to maximize the number of Systems that qualify for the Grant or, if any Alternative Tax Program is elected pursuant to Section 7.5(b)(i), any Alternative Tax Program.

(e) Each Member covenants to the Company and each other Member that it will not take any action that would cause the assets of the Company or the Project Company to become subject to the alternative depreciation system within the meaning of Section 168(g) of the Code.

(f) Each Member covenants to the Company and each other Member that the Member will not become a Disqualified Person. Each Member further covenants that it will take no action or change its legal status in a manner that would give rise to a Class A Recapture Event or a Class B Recapture Event, as applicable.

(g) The Managing Member shall be required to perform its duties and obligations hereunder in good faith and in a manner reasonably believed to be in the best interest of the Company.

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(h) The Managing Member covenants that it will not cause the Company or Project Company to claim an ITC with respect to Systems for which an application for a Grant has been submitted or for which a Grant has been received.

(i) The Managing Member will elect an Alternative Tax Program with respect to any System only in accordance with Section 7.5(b)(i).

(j) The Managing Member covenants that, if there is any Project Company Distributable Cash, it will cause the Company, as manager of the Project Company, to, not less than on a quarterly basis, cause the Project Company to distribute such Project Company Distributable Cash to the Company.

(k) The Managing Member covenants that, subject to the provisions of Sections 3.6(c), and (e), it shall cause the Company and cause the Company to cause the Project Company to comply with the terms and conditions of the REPS Act and the Tariffs.

(l) The Managing Member covenants that all of the Systems will be Placed In Service prior to January 1, 2017 and that each System will be owned by the Project Company prior to each such System being Placed In Service.

(m) The Class B Member covenants that it will not claim an ITC with respect to Systems for which an application for a Grant has been submitted or for which a Grant has been received.

Section 3.13 Deferred Obligations. The obligations of [***] and Clean Technologies to pay their respective Funding Payments or CT Funding Amounts, respectively, are unconditional, except as provided herein and in the ECCA, and subject to full recourse.

Section 3.14 Events of Default. An event of default shall occur upon the occurrence of any of the following by a Member: (i) failure of a Class B Member to make any Funding Payment or failure of a Class A Member to make any payment of a CT Funding Amount, in each case, when due or perform any other obligation with respect to such payment and the same is not cured within five (5) Business Days after notice that the same is due, (ii) making an untrue material representation or warranty, or (iii) a material breach by such Member of any provision in this Agreement. Without in any way limiting any other remedies available to the Class B Member or Clean Technologies hereunder, upon an event of default by the Class B Member or Clean Technologies, the other Member shall have the right to suspend performance of its obligations that are prevented by such default.

Section 3.15 Matters Pertaining to the Grant.

(a) As soon as practicable but no later than 105 days after the Initial Funding Date and each Subsequent Funding Date, as applicable, the Managing Member shall: (x) provide the Accounting Firm the information it requires to issue the Accountant’s Certificate with respect to the Systems that have been Placed in Service during the quarterly period following such

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Funding Date or other period, as applicable, and will be included in a Grant Application and (y) use commercially reasonable efforts to cause the Company to cause the Project Company to complete and file a Grant Application with respect to such Systems. To the extent permitted by applicable law (and provided that it would not likely cause the Grant Application to be rejected or materially delayed), the Grant Application will request that the Grant be wired or otherwise sent directly to a control account. The Members will cooperate to seek confirmation from the appropriate Governmental Authorities with respect to the ability to have such control account established in the name of the Company. To provide for the possibility that the Grant will have to be funded to an account of the Project Company, promptly following the Execution Date, the Managing Member shall use reasonable best efforts to cause the Company to cause the Project Company, at its cost, to cause the Project Company’s lenders to allow the Project Company to establish a control account in the name of the Project Company which would not be subject to any lien or security interest or restriction on distribution other than the hereinafter described Control Agreement. Whether or not the control account is at the Project Company or Company level, the control account shall be subject to the Control Agreement in form and substance reasonably acceptable to the Class B Member, the control account agent and either the Project Company or the Company, as applicable, which shall provide that upon receipt of any funds in the control account, the control account agent will immediately distribute such funds to the Class B Member and the Class A Member, pro rata as provided in Section 6.1(a). Any distribution made from the control account to the Members will be deemed to be a Company distribution for all purposes of this Agreement, including, without limitation, for purposes of maintaining Capital Accounts.

(b) At least 10 days prior to filing a Grant Application, the Managing Member shall deliver to Class B Member a copy of the proposed Grant Application, which shall include the proposed filing date for the Grant Application. Class B Member shall have the right to raise reasonable objections to the proposed Grant Application within five days after Class B Member’s receipt thereof. If Class B Member raises any objection to the proposed Grant Application within such five-day period, the Managing Member and Class B Member shall use commercially reasonable efforts to resolve such objections. In the event the Managing Member and Class B Member are unable to resolve any such objections within a reasonable period of time, either Member may invoke the dispute resolution provisions of Section 11.11(a).

(c) To the Knowledge of the Managing Member, after due inquiry, all factual information and factual statements contained in the Grant Applications including amounts relating to the purchase price of the Systems shall be true, correct and complete in all material respects. For the avoidance of doubt, this Section 3.15(c) shall not be construed as a representation or warranty to any Member as to any legal matters or legal conclusions in the Grant Applications, although the Parties acknowledge that Clean Technologies has made representations and warranties in this Agreement and the ECCA, including representations and warranties relating to the eligibility of the Systems for the Grant.

(d) The Managing Member shall cause the Company to cause the Project Company to respond to all written requests from any Governmental Authority for additional or supplemental information relating to the Grant Application and shall make all required filings and responses in Consultation with Class B Member.

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(e) Upon receipt by the Project Company of Grant proceeds, the Managing Member shall, within two Business Days following the date on which Grant proceeds are received by the Project Company, provide Class B Member or cause Class B Member to be provided with a notice that sets forth the amount of the Grant received by the Project Company and a calculation of the appropriate amounts to be distributed to each of the Members.

(f) In the event that an Alternative Tax Program is elected pursuant to Section 7.5(b)(i), the above provisions shall be deemed to apply to any Alternative Tax Program (with modifications as necessary to account for the differences in such programs as compared to the Grant), and the Managing Member shall be required to comply with all such provisions of this Section 3.15 as if they applied to any Alternative Tax Program, as applicable.

Section 3.16 Separateness. The Members agree that the Company and the Project Company are separate and distinct entities and that the Company shall conduct, and cause the Project Company to conduct, their respective affairs in a manner intended to maintain such status, including without limitation adhering the following:

(a) The Company has not formed, acquired or held and shall not form, acquire or hold any subsidiary, except for the Project Company;

(b) The Company does not have, shall not have and at no time had any assets other than its membership interests in the Project Company and personal property necessary or incidental to its ownership of such membership interests;

(c) The Company has not engaged in, sought, consented or permitted to and shall not engage in, seek, consent to or permit any dissolution, winding up, liquidation, consolidation or merger or any sale or other transfer of all or substantially all of its assets or any sale of assets outside the ordinary course of its business, except in each case as permitted by (i) this Company LLC Agreement and, (ii) any transfer of the Company’s membership interests in connection with the transactions described in the ECCA;

(d) The Company shall not incur any additional debt or contingent liabilities except as permitted by this Company LLC Agreement;

(e) The Company shall not commingle assets with those of any other entity and shall hold its assets in its own name;

(f) The Company shall conduct its own business in its own name;

(g) The Company shall maintain bank accounts (if any), books, records and financial statements separate from any other person or entity;

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(h) The Company shall observe all formalities of the Company LLC Agreement;

(i) The Company shall pay its own liabilities out of its own funds;

(j) The Company shall maintain adequate capital in light of its contemplated business operations;

(k) The Company shall use separate stationery, invoices and checks;

(l) The Company shall pay the salaries of its own employees, if any;

(m) The Company shall not guarantee or become obligated for the debts of any other entity or hold out its credit as being available to satisfy the obligations of others, in each case, other than the Project Company;

(n) The Company shall not make any loans to any other person or entity other than in accordance with this Company LLC Agreement;

(o) The Company shall allocate fairly and reasonably any overhead for shared office space;

(p) The Company shall not pledge its assets for the benefit of any other entity, other than the Project Company or the Project; and

(q) The Company shall hold itself out as a separate entity, with the exception that the Company shall not be considered a separate entity from the Project Company for federal, state, and local income tax purposes, and shall use commercially reasonable efforts to correct any known misunderstanding regarding its separate identity.

ARTICLE IV

CAPITAL CONTRIBUTIONS; CAPITAL ACCOUNTS

Section 4.1 Capital Contributions.

(a) Subject to the terms of the ECCA, the Members will make Capital Contributions to the Company at the times and in the amounts required under the ECCA. The Members acknowledge that on or prior to the effective date of the 2012 Operating Agreement, the Class A Member made a Capital Contribution to the Company of all of its right, title and interest in and to the Project Company and the sum of [***] (in cash), and has agreed to make further Capital Contributions at the times and in the amounts required under the ECCA. Except as provided in this Article IV of this Agreement, no Member will be required to make any Capital Contributions to the Company after the Subsequent Funding Termination Date.

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(b) The Company shall be entitled to enforce the obligations of each Member with respect to each Funding, and the Company shall have all remedies available at law or in equity in the event any such obligation is not met.

(i) Each Member hereby (A) agrees that the remedy at law for damages resulting from any failure by it to make a Funding when required under the terms of the ECCA is inadequate because the funding of the Systems requires the timely availability of required capital contributions and (B) consents to the institution of an action for specific performance of its obligations in the event of such a default.

(ii) The Managing Member (or any other Member in the event that the Managing Member is the defaulting Member) may cause the Company to commence legal proceedings against the defaulting Member to collect the due and unpaid capital contribution plus interest (calculated from the date of the missed Funding) at a rate equal to the lesser of (x) 18% per annum, compounded daily and (y) the maximum rate allowable by law, as well as the expenses of collection including, without limitation, attorneys’ fees. Amounts collected in excess of the defaulting Member’s due and unpaid capital contribution or loan advance shall be deemed for purposes of this Agreement to be income of, or a reimbursement to, the Company, as appropriate, and shall not be treated as a capital contribution by the defaulting Member.

(iii) Such defaulting Member’s share of the future distributions and profits (but not losses) of the Company shall be reduced by up to one hundred percent (100%) percent of that to which such defaulting Member would have been entitled based upon its Percentage Interest as measured immediately prior to the date of the missed Funding, based on a proportionate calculation of the shortfall of funds resulting from such defaulting Member’s failure to comply with its Funding obligation. The share of future distributions and profits that are not allocated to the defaulting Member shall be apportioned among the other non-defaulting Members in proportion to their respective Percentage Interests until such time as the defaulting Member cures such default by paying such unpaid capital contribution plus interest (calculated from the date of the missed Funding) at a rate equal to the lesser of (x) 18% per annum, compounded daily and (y) the maximum rate allowable by law, as well as the expenses of collection including, without limitation, attorneys’ fees.

Section 4.2 Capital Accounts.

(a) A Capital Account will be established and maintained for each Member in the manner required by the Treasury Regulations under Section 704(b) of the Code. If there is more than one Member in a class, then each of the Members in that class will have a separate Capital Account.

(b) A Member’s Capital Account will be increased by (i) the amount of money the Member contributes to the Company, (ii) the Gross Asset Value of any property the Member contributes to the Company (net of liabilities secured by the property that the Company is considered to assume or take subject to under Section 752 of the Code; the Gross Asset Value of any property contributed by a Member will be set forth in Schedule 4.2(b)), (iii) the income and gain (or items thereof) that the Member is allocated by the Company, including any income and gain exempted from tax (e.g., income allocated in respect of the Grant) and gain described in

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Section 4.2(c) and (iv) an amount equal to an allocation of upward basis adjustment to such Member in the event of a recapture of the Grant or ITC as described in Treasury Regulation Section 1.704-1(b)(2)(iv)(j). A Member’s Capital Account will be decreased by (v) the amount of money distributed to the Member by the Company (including any proceeds from the Grant distributed to such Member), (vi) the Gross Asset Value of any property distributed to the Member by the Company (net of liabilities secured by the property that the Member is considered to assume or take subject to under Section 752 of the Code), (vii) any expenditures of the Company described in Section 705(a)(2)(B) of the Code (i.e., expenditures that cannot be capitalized or deducted in computing taxable income) that are allocated to the Member; and (viii) losses and deductions (or items thereof) that are allocated by the Company to the Member, including losses described in Section 4.2(c), but the Capital Account will not be reduced again under this clause (viii) for expenditures that already reduced it under clause (vii) and (ix) an amount equal to an allocation of downward basis adjustment to such Member to take into account the Grant or ITC as described in Treasury Regulation Section 1.704-1(b)(2)(iv)(j).

(c) The Gross Asset Values of all the Company assets will be adjusted to equal their respective Gross Fair Market Values upon the occurrence of any of the following events: (i) if any new or existing Member contributes more than a de minimis amount of money or property, provided that, for the avoidance of doubt, no adjustment will be made to Gross Asset Values in connection with any Capital Contributions described in Section 4.2(b) or (c), (ii) if more than a de minimis amount of money or other property is distributed by the Company to a Member to redeem its Membership Interest, or (iii) if the Company is liquidated within the meaning of Treasury Regulations Section 1.704-1(b)(2)(ii)(g). Following the occurrence of an event in clauses (i) and (ii) the Managing Member will make an adjustment to Gross Asset Value only if it reasonably determines, after Consultation with the other Members, that the adjustments are necessary or appropriate to reflect the relative economic interests of the Members in the Company. In addition, the Gross Asset Value of any Company asset that is distributed to a Member will be adjusted to equal the Gross Fair Market Value of the asset on the Distribution Date. In the event the Gross Asset Value of any item of the Company’s property is adjusted as described in this Section 4.2(c), then the amount of the adjustment will be treated as an item of gain (if the adjustment increases the Gross Asset Value) or an item of loss (if the adjustment decreases the Gross Asset Value) from the disposition of such property.

(d) The initial Capital Account balance and Percentage Interest of each Member is shown in Schedule 4.2(d). Contributions made by the Members on Subsequent Fundings will be considered contributions of such amounts to the Company. The Managing Member will update Schedule 4.2(d) after each Subsequent Funding and from time to time as necessary to reflect accurately the information therein; provided, however, that, notwithstanding anything in this Company LLC Agreement or the ECCA to the contrary, failure to update Schedule 4.2(d) in accordance with this Section 4.2(d) shall not impact the actual amounts considered Capital Contributions hereunder, all of which shall be deemed made on the date actually contributed. Any such updating will be consistent with how this Article IV requires that the Capital Accounts be maintained. Any reference in this Agreement to Schedule 4.2(d) will be treated as a reference to Schedule 4.2(d) as amended and in effect from time to time.

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(e) If all or a portion of a Membership Interest in the Company is Transferred in accordance with the terms of this Agreement, then the transferee will succeed to the Capital Account of the transferor to the extent it relates to the Membership Interest so Transferred.

(f) The provisions of this Agreement relating to maintenance of Capital Accounts are intended to comply with Treasury Regulation Sections 1.704-1(b) and 1.704-2, and will be interpreted and applied in a manner consistent with such Treasury Regulations or any successor provisions.

Section 4.3 Equity Contributions to Project Company.

(a) Subject to the terms and conditions of this Agreement and the satisfaction of the conditions precedent in Section 4.4 hereof, the Company shall contribute funds to the Project Company (each such contribution, an “Equity Contribution”) for further application by the Project Company towards payment of the purchase price for the Systems and other related costs. Within five (5) Business Days of receipt of a notice in the form of Exhibit E (the “Equity Contribution Notice”) and the satisfaction or waiver of the conditions precedent in Section 4.4 (such date, the “Equity Contribution Date”), the Company shall transfer the appropriate amount of funds from the Company’s account to a Project Company account as specified by the Project Company in such notice.

(b) Each of the Initial Funding Payment of Class B Member and the CT Funding Amount of Class A Member made on the Initial Funding Date has been or shall be applied for further contribution to the Project Company to pay the 25% Progress Payments for systems to be deployed in the two quarters immediately following the Initial Funding Date.

(c) All CT Funding Amounts made by Class A Member and all Subsequent Funding Payments made by Class B Member (subject to the satisfaction or waiver by the Class B Member of the conditions precedent in Section 4.4) will be contributed to the Project Company and used for the purchase and installation of the Systems and related costs. All CT Funding Amounts and all Subsequent Funding Payments will be deposited into an account established in the Project Company’s name with a financial institution reasonably acceptable to Class B Member (the “Capital Contributions Account”) and will be maintained in the Capital Contributions Account until such time as such amounts are used by the Project Company to pay for the costs or expenses for which such funds were requested, to distribute such funds to the Members as expressly permitted hereunder or for such other uses as are agreed to by the Members. Upon establishment of the Capital Contributions Account any portion of the Capital Contributions made by the Members on the Initial Funding Date that was projected to pay for the purchase price of Systems that has not yet been used for such purpose shall be deposited into the Capital Contributions Account and maintained there until used in accordance with the preceding sentence.

Section 4.4 Conditions Precedent to Equity Contributions by Company. The obligation of the Company to make an Equity Contribution to the Project Company (except in the case of the portion of any Equity Contribution used to pay any 25% Progress Payments for

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Systems to be deployed in the subsequent quarter which shall be subject to the conditions precedent hereinafter expressly provided) will be subject to the fulfillment by the Project Company, on or before the applicable Equity Contribution Date, of each of the following conditions (and upon satisfaction of such conditions, as applicable, the Managing Member shall so notify in writing the Administrator and the Members):

(a) the Project Company shall have delivered to the Company and each of the Company’s members an Equity Contribution Notice, in the form attached to this Agreement as Exhibit E;

(b) Managing Member’s Capital Contribution to the Company of [***] shall have been further contributed by the Company to the Project Company and used by Project Company to incur Project costs in an amount equal to at least 5% of the cost of all Systems;

(c) the Project Company shall deliver to the Company and each of the Company’s members all necessary Governmental Approvals from the applicable Governmental Authority to the extent not previously delivered;

(d) each of the representations and warranties of Clean Technologies in Section 3.2 of the ECCA relating to the Systems funded by such Equity Contribution is (i) true and correct in all material respects as of such Equity Contribution Date except to the extent that any such representation or warranty shall have been expressly made only as of an earlier date in which case such representation and warranty was true and correct in all material respects as of such earlier date and (ii) if and to the extent such representations and warranties are qualified by the words “material,” “Material Adverse Effect” or similar qualification, true and correct, as qualified, as of the such Equity Contribution Date (or such earlier date, as applicable);

(e) No material ongoing breach exists by Bloom, Clean Technologies, the Company, the Project Company, the Managing Member, DPL or PJM under the ECCA, the Project Company LLC Agreement, the MESPA, the MOMA, the Administrative Services Agreement, the Credit Documents, the DPL Agreements, the PJM Agreements, this Agreement or any other Transaction Document or Material Contract, as applicable;

(f) the Project Company is solvent and no event of Bankruptcy has occurred with respect to the Project Company;

(g) confirmation that (i) all conditions precedent in Section 2.5 and Section 2.7 of the ECCA (other than Section 2.5(aa)) remain satisfied; provided that Clean Technologies and Company shall not be required to update any due diligence reports, legal opinions, appraisals or other third party documents previously delivered to Class B Member unless any of such previously delivered documents has been withdrawn or specific circumstances have materially changed in connection with the Systems to be funded from this Equity Contribution by Company to Project Company such that the previously delivered document is inapplicable or is materially incorrect with respect to such Systems; and (ii) there have been no material adverse changes from the circumstances addressed in the due diligence reports delivered under Sections 2.5(a) and (b) of the ECCA;

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(h) the information on each invoice from Bloom to Project Company for payments under the MESPA regarding the Systems to be paid for with proceeds of the applicable Equity Contribution will include the following: (i) the location of the installation of each such System, (ii) the serial number for each such System, (iii) the price for each such System as determined pursuant to the MESPA, (iv) all amounts previously paid as a deposit on each such System and (v) all amounts remaining due and payable on each such System;

(i) the Initial Funding Payment, any prior Subsequent Funding Payments and any prior CT Funding Amounts, as applicable, shall have been contributed in full to the Project Company in accordance with Section 4.3 and Section 4.4 hereof, with respect to any Subsequent Funding Payment and any CT Funding Amount, the Capital Contributions Account shall have been established and maintained in accordance with the provisions of Section 4.3(c), the Project Company does not retain at such time in the Capital Contributions Account more than an amount equal to (i) $20,000,000 minus (ii) the amount of cash held by the Company at such time, and the Project Company shall have used such payments to make payments under the MESPA;

(j) there are no material defaults under the MOMA relating to Systems previously installed, purchased and paid for by Project Company;

(k) in the case of the portion of any Subsequent Funding Payment used to pay any 75% Progress Payments, Commencement of Operations (as defined under the MESPA) has occurred for the Systems for which there is a request for a Capital Contribution of the amounts of the 75% Progress Payment for such System;

(l) in the case of the portion of any Subsequent Funding Payment or any CT Funding Amount used to pay any 75% Progress Payments, the Members have received confirmation that the Note Proceeds have either been disbursed from the Construction Escrow Account or will be available for disbursement from the Construction Escrow Account contemporaneous with Project Company’s drawdown of such Progress Contribution from the Company (as may be evidenced by, among other things, delivery to the Members of a copy of the Account Withdrawal Instruction applicable to such proceeds which has been countersigned by the Collateral Agent and delivered to the Depositary) or the Required Holders have in writing confirmed to the Members that all conditions precedent to such disbursement from the Construction Escrow Account have been satisfied or waived and the Required Holders are prepared to permit such disbursement contemporaneous with Project Company’s drawdown of such Progress Contribution from the Company; and

(m) in the case of the portion of any Subsequent Funding Payment or any CT Funding Amount used to pay any 75% Progress Payments, the Members have received written certification from the Independent Engineer (as defined in the MESPA) addressed to Project Company certifying, without any qualification, that such System’s commissioning has been successfully completed, that such System is available for full commercial operation, and that Bloom has installed all BOF Work (as defined in the MESPA) necessary for the operation of that System.

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Notwithstanding the foregoing, with respect to the portion of any Equity Contribution used to pay any of the 25% Progress Payments for Systems to be deployed in the subsequent quarter, the fulfillment by the Project Company, on or before the applicable Equity Contribution Date, of each of the conditions set forth in Sections 4.4(a), (e), (f), (h)(i) and (h)(iii) must be satisfied.

To the extent that an Equity Contribution Notice has been delivered to the Company for which all of the applicable conditions precedent set forth above have been satisfied, the Company may make a capital contribution to Project Company related to all of the Systems for which all of the applicable conditions precedent have been satisfied. With respect to those Systems for which all conditions precedent had not been previously satisfied, but which are later satisfied, the Company may make a subsequent capital contribution to Project Company for the amounts requested in connection with that later qualifying System.

Section 4.5 Member Loans.

(a) The Class B Members are entitled to effect cures of defaults under the Credit Documents to the extent set forth in the Interparty Agreement. Amounts expended in effecting such cures shall be deemed Member Loans, with each Class B Member contributing ratably in proportion to its holding of all then outstanding Class B Membership Interests; provided that, if any Class B Member does not wish to advance or loan its proportionate share of any such advance or loan, an amount equal to such proportionate share may instead be advanced by the remaining Class B Members (each such remaining Class B Member contributing ratably (or as otherwise agreed amongst such remaining Class B Members) in proportion to its holding of all then outstanding Class B Membership Interests (excluding in such determination of outstanding Class B Membership Interests all then outstanding Class B Membership Interests of any Class B Member that does not wish to advance or loan such proportionate share).

(b) Any loan or advance made by any Class B Member pursuant to this Section 4.5 shall bear interest, unless otherwise agreed by such Class B Member in its sole discretion, at the Prime Rate.

(c) Notwithstanding anything to the contrary in this Agreement, the Company shall borrow and accept, and the Managing Member shall cause the Company to borrow and accept, such loans or advances from the lending Members. The Company shall immediately advance, and the Managing Member shall cause the Company to immediately advance, such loans or advances from the lending Members to the Project Company. The incurrence of indebtedness by the Company pursuant to any loan or advance made by any Member pursuant to this Section 4.5 shall not require the consent of the Managing Member or the Class A Member. The Company shall apply all Company Distributable Cash to the payment of the principal of all outstanding advances or loans (together with accrued interest thereon) made under this Section 4.5 and, unless and until the outstanding principal amount of all such advances and loans is repaid in full together with all interest thereon and all other amounts due in respect thereof, there shall be no distributions to the Class A Members under this Agreement pursuant to Article VI or otherwise.

(d) An advance or loan by any Member described in this Section 4.5 constitutes a loan from such Member to the Company and is not a Capital Contribution.

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ARTICLE V

ALLOCATIONS

Section 5.1 Allocations. After giving effect to the allocations in Section 5.2 and except as provided in Section 10.2(c) and Section 10.2(d) for purposes of maintaining Capital Accounts, all items of Company income, loss, gain, deduction and credit for any Fiscal Year will be allocated among the Members as follows:

(a) Except for items relating to any Grant, for the period beginning on April 13,2012 and running through the Flip Date, [***]% in the aggregate to the Class B Members, allocated among them in proportion to their Pro Rata Shares, and [***]% in the aggregate to the Class A Members, allocated among them in proportion to their Pro Rata Shares; and (ii) for the period beginning after the Flip Date, [***]% in the aggregate to the Class B Members, allocated among them in proportion to their Pro Rata Shares, and [***]% in the aggregate to the Class A Members, allocated among them in proportion to their Pro Rata Shares.

(b) With respect to any items relating to any Grant, [***]% in the aggregate to the Class B Members, allocated among them in proportion to their Pro Rata Shares, and [***]% in the aggregate to the Class A Members, allocated among them in proportion to their Pro Rata Shares.

(c) No losses or deductions may be allocated to a Member pursuant to this Section 5.1 to the extent the allocation would lead to a deficit in such Member’s Adjusted Capital Account. Losses or deductions that a Member cannot be allocated by reason of this Section 5.1(b) will be allocated to the other Members.

Section 5.2 Adjustments. The following adjustments will be made in the allocations in Section 5.1 to comply with Treasury Regulation Section 1.704-1(b):

(a) In any Fiscal Year in which there is a net decrease in Company Minimum Gain, income and gain in the amount of the net decrease will be allocated to Members in the ratio required by Treasury Regulation Section 1.704-2. This provision is intended to comply with the minimum gain chargeback requirement in Treasury Regulation Section 1.704-2(f) and will be interpreted consistently therewith.

(b) In any Fiscal Year in which there is a net decrease in Minimum Gain Attributable to Member Nonrecourse Debt, then income and gain in the amount of the net decrease will be allocated to each Member who was considered to have had a share of such minimum gain at the beginning of the Fiscal Year in the ratio required by Treasury

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Regulation Sections 1.704-2(i)(4) and 1.704-2(j)(2)(ii). This provision is intended to comply with the partner nonrecourse debt minimum gain chargeback requirement in Treasury Regulation Section 1.704-2(i)(4) and will be interpreted consistently therewith.

(c) In the event any Member unexpectedly receives any adjustments, allocations or distributions described in Treasury Regulation Sections 1.704-1(b)(2)(ii)(d)(4), (5) or (6), gross income will be specially allocated to each such Member in an amount and manner sufficient to eliminate, to the extent required by the Treasury Regulations, any deficit in the Member’s Adjusted Capital Account as quickly as possible. However, an allocation will be made under this Section 5.2(c) only if and to the extent that the Member would have a deficit in its Adjusted Capital Account after all other allocations provided for in Sections 5.1 and 5.2 have been tentatively made as if this Section 5.2(c) were not in this Agreement.

(d) In the event that any Member has a deficit in its Adjusted Capital Account at the end of any Fiscal Year after all the other allocations in Section 5.1 and 5.2 have been taken into account, then the Member will be specially allocated items of Company income and gain as quickly as possible to eliminate the deficit.

(e) Nonrecourse Deductions for any Fiscal Year will be allocated to the Members in the same ratio as other income and loss under Section 5.1 or Sections 10.2(c) and (d), as applicable.

(f) Any Member Nonrecourse Deductions for any Fiscal Year will be allocated to the Member who bears the economic risk of loss with respect to the Member Nonrecourse Debt to which the Member Nonrecourse Deductions are attributable in accordance with Treasury Regulation Section 1.704-2(i)(l).

(g) If the Company distributes property to a Member in liquidation of the Membership Interest of the Member and there is an adjustment in the adjusted tax basis of Company property under Section 734(b) of the Code, there will be a corresponding adjustment to the Capital Account of the Member receiving the distribution. If the Company distributes cash to a Member in excess of its outside basis in its Membership Interest, leading to an adjustment in the inside basis of the Company property under Section 734(b) of the Code, solely for purposes of adjusting Capital Accounts of the Members, the adjustment in the inside basis will be treated as gain or loss and be allocated among the Members in the same ratio as other gain or loss for the Fiscal Year in which the adjustment occurs. This provision is intended to comply with Treasury Regulation Sections 1.704-1(b)(2)(iv)(m)(2) and (4) and will be interpreted consistently therewith.

(h) The allocations in this Section 5.2 are required to comply with the Treasury Regulations. To the extent the Company can do so consistently with the Treasury Regulations, the net amount of the allocations under this Article V and Section 10.2 to each Member will be the net amount that would have been allocated to each Member if this Agreement did not have this Section 5.2.

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Section 5.3 Tax Allocations.

(a) All allocations of tax items of Company income, gain, deductions and losses for each Fiscal Year will be allocated in the same proportions as the allocations of book items of Company income, gain, deductions and losses were made for such Fiscal Year pursuant to Sections 5.1 and 5.2.

(b) Notwithstanding Section 5.3(a), if, as a result of contributions of property by a Member to the Company or an adjustment to the Gross Asset Value of Company assets pursuant to this Company LLC Agreement, there exists a variation between the adjusted basis of an item of Company property for United States federal income tax purposes and as determined under the definition of Gross Asset Value, allocations of income, gain, loss, and deduction will be allocated among the Members so as to take into account any variation between the adjusted basis of such property to the Company for United States federal income tax purposes and its initial Gross Asset Value using the traditional method with curative allocations pursuant to Treasury Regulation Section 1.704-3(c). To the extent the “ceiling rule” in Treasury Regulation Section 1.704-3(b) prevents the noncontributing Members from receiving an amount of tax depreciation in any year equal to the Members’ share of Depreciation for the year, then the shortfall will be made up in succeeding years as quickly as possible out of any tax depreciation that would otherwise have been allocated to the contributing Member.

(c) Allocations pursuant to this Section 5.3 are solely for purposes of federal, state and local taxes and will not affect, or in any way be taken into account in computing, any Member’s Capital Account or share of income, gain, deductions or losses or distributions pursuant to any other provision of this Agreement.

(d) To the extent that an adjustment to the adjusted tax basis of any Company asset is made pursuant to Section 743(b) of the Code as the result of a purchase of a Membership Interest in the Company, any adjustment to the depreciation, amortization, gain or loss resulting from such adjustment will affect the transferee only and will not affect the Capital Account of the transferor or transferee. In such case, the transferee will be required to agree to provide to the Company (i) information about the allocation of any step-up or step-down in basis to the Company’s assets and (ii) the depreciation or amortization method for any step-up in basis to the Company’s assets.

(e) Solely for purposes of determining a Member’s proportionate share of the “excess non-recourse liabilities” of the Company within the meaning of Treasury Regulation Section 1.752-3(a)(3), each Member’s share of such liability shall be consistent with the profit sharing percentages then in effect pursuant to Section 5.1(a).

Section 5.4 Transfer or Change in Company Interest. If the respective Membership Interests or allocation ratios described in this Article V of the existing Members in the Company change or if a Membership Interest is Transferred in compliance with this Agreement to any other Person, then, for the Fiscal Year in which the change or Transfer occurs, all income, gains, losses, deductions, credits and other tax incidents resulting from the operations

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of the Company shall be allocated, as between the Members for the Fiscal Year in which the change occurs or between the transferor and transferee, by taking into account their varying interests using the proration method permitted by Treasury Regulation Section 1.706-1(c)(2)(ii), unless otherwise agreed by all the Members.

Section 5.5 Timing of Allocations. Items of income, gain, loss, deduction and credit will be allocated to the Members pursuant to this Article V as of the last day of each Fiscal Year; provided that such items shall also be allocated at such times as the Gross Asset Values of the Company’s assets are adjusted pursuant to Section 4.2(c).

ARTICLE VI

DISTRIBUTIONS

Section 6.1 Distributions. Except as provided otherwise in Sections 6.6, 6.7, 6.9, 6.11 or 10.2, Company Distributable Cash will be distributed to the Members on each Distribution Date in the manner described in this Section 6.1.

(a) First, the proceeds of any Grant (or, if any Alternative Tax Program is elected pursuant to Section 7.5(b)(i), any Alternative Tax Program other than the ITC) received by the Project Company in connection with the Systems included in the Portfolio (as opposed to future capital expenditures) will be distributed, promptly upon receipt, in full to the Company by the Project Company and then distributed [***]% to the Class B Members, distributed among them in proportion to their Pro Rata Shares, and [***]% to the Class A Members, distributed among them in proportion to their Pro Rata Shares;

(b) Second, any remaining Company Distributable Cash will be distributed (i) from April 13, 2012 to and through the Flip Date, [***]% to the Class B Members, distributed pro rata in proportion to the Percentage Interest held by each Class B Member, and [***]% to the Class A Members, distributed pro rata in proportion to the Percentage Interest held by each Class A Member, and (ii) after the Flip Date, [***]% to the Class B Members, distributed pro rata in proportion to the Percentage Interest held by each Class B Member, and [***]% to the Class A Members, distributed pro rata in proportion to the Percentage Interest held by each Class A Member; and

(c) Notwithstanding anything to the contrary in this Article VI or in any other Transaction Document, in the event that any 25% Progress Payments or 75% Progress Payments are refunded from Bloom to Project Company under the MESPA, whether or not such refunded 25% Progress Payments or 75% Progress Payments are deposited into a separate control account with the Company as the secured party, following the receipt by the Company of such refunded 25% Progress Payments or 75% Progress Payments, such refunded 25% Progress Payments or 75% Progress Payments will be distributed 100% to the Class B Members and among them in proportion to their Pro Rata Shares.

Section 6.2 Withholding Taxes. If the Company is required to withhold taxes with respect to any allocation or distribution to any Member pursuant to any applicable federal,

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state or local tax laws, the Company may, after first notifying the Member and permitting the Member, if legally permitted, to contest the applicability of such taxes, withhold such amounts and make such payments to taxing authorities as are necessary to ensure compliance with such tax laws. Any funds withheld by reason of this Section 6.2 shall nonetheless be deemed distributed to the Member in question for all purposes under this Agreement. If the Company fails to withhold from actual distributions any amounts it was required to withhold, the Company may, at its option, (a) require the Member to which the withholding was credited to reimburse the Company for such withholding, or (b) reduce any subsequent distributions by the amount of such withholding. This obligation of a Member to reimburse the Company for taxes that were required to be withheld shall continue after such Member Transfers its Membership Interests in the Company. Each Member agrees to furnish the Company with any representations and forms as shall reasonably be requested by the Company to assist it in determining the extent of, and in fulfilling, any withholding obligations it may have.

Section 6.3 Limitation upon Distributions. No distribution of Company Distributable Cash will be made if the distribution would violate any contract or agreement to which the Company is then a party or any Legal Requirement then applicable to the Company.

Section 6.4 No Return of Distributions. Any distribution of Company Distributable Cash or property pursuant to this Agreement shall be treated as a compromise within the meaning of Section 18-502(b) of the Act and, to the full extent permitted by law, any Member receiving the payment of any such money or distribution of any such property shall not be required to return any such money or property to any Person, the Company or any creditor of the Company. However, if any court of competent jurisdiction holds that, notwithstanding the provisions of this Agreement, any Member is obligated to return such money or property, such obligation shall be the obligation of such Member and not of the other Members. Without limiting the generality of the foregoing, a deficit Capital Account of a Member shall not be deemed to be a liability of such Member nor an asset or property of the Company.

Section 6.5 Calculation of Internal Rate of Return.

(a) Tracking Progress. The Managing Member will calculate at least annually whether the Class B Member has reached the Target IRR and will send the Class B Member, within 120 days after the end of each Fiscal Year in which the Target IRR was not achieved, a report in the form of the Tracking Model showing where it believes the Class B Member is in relation to the Target IRR. If the report suggests that the Target IRR will be reached during the next two Fiscal Years, then the Managing Member will calculate and report whether the Class B Member has reached the Target IRR at least quarterly thereafter. The Managing Member will make its advisers available to answer any questions about its calculations. The Class B Member may invoke the dispute resolution procedures in Section 11.11(b) to resolve any item or procedure that is in dispute, and the conclusion of such dispute resolution procedures will apply in all subsequent periods to any identical item or procedure.

(b) Notice of Date. The Managing Member will notify the Class B Member in writing at least 10 Business Days before the Distribution Date following the month in which it

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believes the Class B Member achieved the Target IRR or at least 30 days before making any liquidating distributions, in connection with a liquidation of the Company pursuant to Section 10.1, if it believes the Class B Member will achieve the Target IRR as a consequence of the liquidating distributions. The notice will include the Tracking Model showing the Managing Member’s calculations and, in the case of a notice delivered in connection with a liquidation, the allocations and distributions that the Managing Member proposes to make to the Class B Member under Section 10.2 in light of the calculations. The Managing Member will make its advisers available to answer any questions about its calculations. If the Class B Member wishes to invoke the dispute resolution procedures in Section 11.11(b) to resolve any disagreements, then they must give notice to that effect to the Managing Member before the Distribution Date, in a case not involving liquidation of the Company, and within 30 days after receipt of notice from the Managing Member in a case involving liquidation.

(c) Notwithstanding the foregoing, if there is a Class A Recapture Event after a final determination has been made that Class B Member has achieved the Target IRR, the Internal Rate of Return shall be recalculated at the time of such Class A Recapture Event in accordance with the terms of Section 6.5, taking into account the consequences of any recapture. If, as a result of the Class A Recapture Event, the Class B Member’s Internal Rate of Return is below the Target IRR, the sharing percentages set forth in Section 5.1 and Section 6.1 shall be adjusted to the maximum extent necessary so as to correct, on a present value basis calculated at the Target IRR, the difference between the Target IRR assumed to have been realized by a holder of Class B Membership Interests on the Distribution Date as of which the Target IRR was determined to have been achieved, and the Internal Rate of Return realized by such a holder after adjusting solely for the Class A Recapture Event. Such change in sharing percentages shall remain in effect until, and to the extent necessary so that, the difference between the Target IRR and actual Internal Rate of Return shall have been eliminated.

Section 6.6 Satisfaction of Recapture-Related Obligations of the Class A Members to the Class B Member.

(a) Notwithstanding the provisions of Section 6.1, if the Class B Member shall suffer any Recapture Damages, as a result of a Class A Recapture Event, then the Class B Member shall be entitled to collect Recapture Damages from the Class A Member in accordance with this Section 6.6.

(b) Within 60 days after they become aware that they have incurred Recapture Damages, the Class B Member shall notify the Company and the Class A Members in writing of their Recapture Claim for such Recapture Damages, specifying in reasonable detail the cause of such Recapture Damages and the Class B Member’s calculation of the amount thereof if reasonably determinable by the Class B Member, or, if not reasonably determinable, an estimate of the range of such Recapture Damages. Within 30 days following receipt of notice of a Recapture Claim, the Class A Members shall notify each of the Class B Members and the Company in writing whether it agrees with or disputes all or a portion of the Recapture Claim, specifying the amount, if any, so agreed to. If the Class A Members shall not deliver such notice

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within the time specified, it shall be deemed to have delivered a notice on the 30th day disputing the entire amount of such Recapture Claim. The Class B Member shall have all rights and remedies available at law or in equity to the Class B Member to collect any Recapture Damages from the Class A Members.

Section 6.7 Satisfaction of Certain Recapture-Related Obligations of the Class B Member to the Class A Members.

(a) Notwithstanding the provisions of Section 6.1, if the Class A Member shall suffer Recapture Damages as a result of a Class B Recapture Event, the Class A Member shall be entitled to collect such Recapture Damages from the Class B Member in accordance with this Section 6.7.

(b) Within 60 days after they become aware that they have incurred Recapture Damages, the Class A Members shall deliver to the Company and the Class B Member a Recapture Claim notice for such Recapture Damages, specifying in reasonable detail the cause of such Recapture Damages and the Class A Member’s calculation of the amount thereof if reasonably determinable by the Class A Member, or, if not reasonably determinable, an estimate of the range of such Recapture Damages. Within 30 days following receipt of notice of a Recapture Claim, the Class B Member shall notify each of the Class A Members and the Company in writing whether it agrees with or disputes all or a portion of the Recapture Claim, specifying the amount, if any, so agreed to. If the Class B Member shall not deliver such notice within the time specified, it shall be deemed to have delivered a notice on the 30th day disputing the entire amount of such Recapture Claim. The Class A Members shall have all rights and remedies available at law or in equity to the Class A Members to collect any Recapture Damages from the Class B Member.

Section 6.8 Satisfaction of Certain Recapture-Related Obligations of the Company or the Project Company

(a) Notwithstanding the provisions of Section 6.1, if the Company or Project Company is required to make any payment to the United States of America (or any agency or instrumentality thereof), as applicable, resulting from a Recapture Event (i) as a result of a Class A Recapture Event, then the Class A Member will be required to pay the amount of such payment (x) to the United States of America (or any agency or instrumentality thereof) on behalf of the Company or Project Company, as applicable, or (y) in the event that the Company or the Project Company has already made such payment, to the Company or Project Company, as applicable, in accordance with this Section 6.8 or (ii) as a result of a Class B Recapture Event, then the Class B Member will be required to pay the amount of such payment (x) to the United States of America (or any agency or instrumentality thereof) on behalf of the Company or Project Company, as applicable, or (y) in the event that the Company or the Project Company has already made such payment, to the Company or Project Company, as applicable, in accordance with this Section 6.8.

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(b) Within 60 days after the Company or Project Company becomes aware that a Recapture Event has occurred that requires the Company or Project Company to make a payment as a result of such Recapture Event, the Company or Project Company, as applicable, shall deliver to the Members a written notice, specifying in reasonable detail the cause of such Recapture Event, including whether caused by a Class A Recapture Event or Class B Recapture Event, and the Company or Project Company’s calculation of the amount of any such payment as a result of such Recapture Event, if reasonably determinable by the Company or the Project Company, or, if not reasonably determinable, an estimate of the range of such payment. Within 30 days following receipt of notice, each Member shall notify the Company or Project Company, as applicable, in writing whether it agrees with or disputes all or a portion of the amount specified in the notice, specifying the amount, if any, so agreed to. The Company and Project Company shall have all rights and remedies available at law or in equity to the Members to collect any payment required to be paid by the Company or the Project Company as a result of a Class A Recapture Event or Class B Recapture Event from the responsible Members.

Section 6.9 Class A Recapture Events Prior to Receipt of Grant.

(a) If, prior to a Grant being received by the Project Company, there is a Recapture Event resulting in a denial of all or a portion of such Grant with respect to the Company or Project Company as a result of a Class A Recapture Event, the Class A Member will be required to pay the Class B Member [***]% of the amount that equals the difference between the Grant amount set forth in the Grant Application and the actual Grant amount received.

(b) Within 60 days after a Recapture Event resulting in a denial of all or a portion of the Grant as a result of a Class A Recapture Event, the Class A Member shall have the right to cause the Company or Project Company to appeal, contest or discuss such denial (i) in any formal or informal discussions with Treasury or any other Governmental Authority, (ii) in any formal or informal administrative proceeding before the relevant Governmental Authority and/or (iii) by commencing litigation in any forum appropriate for such appeal or contest. The Class A Member shall have the right to direct such appeal, contest, or discussions. The Class A Member shall keep, or cause the Company or Project Company to keep, the Class B Member reasonably apprised of all developments with respect to any such appeal, contest, or discussions and shall consult with the Class B Member with respect to its strategy for such appeal, contest or discussion prior to beginning any such appeal, contest or discussion.

Section 6.10 Repayment. If the amount of any Recapture Damages paid under Sections 6.6, 6.7, or 6.8 or any payments made under Section 6.9, are reduced or recovered by the Indemnified Party at any time after the making of such payments by the Indemnifying Party, the amount of such reduction or recovery, less any costs or expenses incurred in connection therewith, must promptly be repaid by the Indemnified Party to the Indemnifying Party net of any Taxes imposed upon the Indemnified Party in respect of such amounts, but taking into account any Tax benefit the Indemnified Party actually realizes as a result of such repayment.

[***] Confidential Treatment Requested

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Section 6.11 Permitted Distributions. On or promptly following the execution date of the Note Purchase Agreement, the Project Company will distribute an amount equal to the Permitted Distribution from the proceeds received by the Project Company from the sale of the notes thereunder to the Company. On or promptly following the Final Completion Date, the Project Company will distribute an amount equal to the amounts remaining on deposit in the Construction Escrow Account and the IDC Reserve Account, in the aggregate, upon the occurrence of the Final Completion Date (such amount, the “Aggregate Final Completion Distribution”) to the Company. The Members acknowledge and agree that, notwithstanding anything to the contrary contained in this Agreement, (i) the proceeds of the Permitted Distribution shall be distributed to the Members on April 30, 2013 or such earlier date as may be agreed upon by the Members and (ii) the proceeds of the Aggregate Final Completion Distribution shall be distributed to the Members on the Distribution Date immediately succeeding the Final Completion Date.

ARTICLE VII

ACCOUNTING AND RECORDS

Section 7.1 Reports.

(a) The Managing Member shall cause the Administrator to prepare and deliver to each Member as soon as practical but in no event later than [***], a written report (each, an “Operations Report”), in the form attached as Exhibit C, that will include a summary of the kilowatt hours produced and sold by the Project Company [***], information regarding the Systems’ availability [***], notice of material events, including but not limited to, defaults under Material Contracts, any Material Adverse Effect that has occurred at the Project Company, any FERC or Grant-related filings, periodic reports on the status of the System sales, periodic financial statements of the Company and the Project Company and such other relevant operational information as may from time to time be reasonably requested, prior to the Flip Date, by Class B Members owning more than 50% of the Class B Membership Interests by Percentage Interest.

(b) [***], the Managing Member shall cause the Administrator to prepare or cause to be prepared, and shall submit to each Member, an annual capital and operating budget for the Project Company [***] (the “Annual Budget”).

(c) The Managing Member shall cause the Administrator to prepare and deliver to each Member [***] a report showing the calculation of distributions [***] determined in accordance with Article VI for both distributions from the Project Company to the Company and the Company to the Members.

(d) The Managing Member shall cause the Administrator to (i) calculate [***] whether the Class B Member has reached the Target IRR; provided, however, that if the calculation [***] suggests that the Target IRR will be reached [***]

[***] Confidential Treatment Requested

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[***], then the Managing Member will calculate whether the Class B Member has reached the Target IRR [***]; and (ii) send the Class B Member, [***], a report showing where it believes the Class B Member is in relation to the Target IRR and a similar report [***].

(e) The Managing Member shall cause the Administrator to notify the Class B Member in writing at least 30 days before the Distribution Date following the month in which it believes the Class B Member achieved the Target IRR or at least 30 days before making any liquidating distributions, in connection with a liquidation of the Company pursuant to Section 10.1, if it believes the Class B Member will achieve the Internal Rate of Return as a consequence of the liquidating distributions (the “Target IRR Notice”). The Target IRR Notice will include the Managing Member’s Internal Rate of Return calculations and, in the case of a notice delivered in connection with a liquidation, the allocations and distributions that the Managing Member proposes to make to the Class B Member under Section 10.2 in light of the calculations.

Section 7.2 Books and Records and Inspection.

(a) The Managing Member shall cause the Company to keep and shall cause the Administrator to maintain, full and accurate books of account, financial records and supporting documents that reflect, completely, accurately and in reasonable detail in all material respects, each transaction of the Company and such other matters as are usually entered into the records or maintained by Persons engaged in a business of like character or as are required by law, and all other documents and writings of the Company and all statements and documents required by the Guidance (including, but not limited to, energy production information and financial and accounting records sufficient to demonstrate that the Grant was properly obtained in accordance with the Guidance and any other documents needed to comply with the Guidance maintenance and access to records, requirements and documents needed for the completion of annual project performance reports (including information regarding annual energy production and number of jobs retained) and recapture certification). The books of account, financial records, and supporting documents and the other documents and writings of the Company shall be kept and maintained by the Administrator at the principal office of the Company. The financial records and reports of the Company and the Project Company shall be kept on an accrual basis and kept in accordance with GAAP.

(b) In addition to and without limiting the generality of Section 7.2(a), the Managing Member shall cause the Company to keep and shall cause the Administrator to maintain at the Company’s principal office:

(i) true and full information regarding the status of the financial condition of the Company, including any financial statements until the applicable statute of limitations expires with respect to the Company tax year to which such information and financial statements relate;

[***] Confidential Treatment Requested

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(ii) promptly after becoming available, a copy of the Company’s and, if applicable, the Project Company’s federal, state, and local income Tax Returns for each year;

(iii) minutes of the proceedings of the Members;

(iv) a current list of the name and last known business, residence or mailing address of each Member and the Administrator;

(v) a copy of this Agreement and the Company’s Certificate of Formation, and all amendments thereto, the Project Company’s operating agreement and all amendments thereto, together with executed copies of any written powers of attorney pursuant to which this Agreement and such Certificate of Formation and all amendments thereto which have been executed and copies of written consents of Members;

(vi) true and full information regarding the amount of cash and a description and statement of the agreed value of any other property and services contributed by each Member, and the date upon which each became a Member;

(vii) copies of records that would enable a Member to determine the Member’s relative shares of the Company’s distributions and the Member’s relative voting rights; and

(viii) all records related to the production and sale of electricity by the Project Company.

(c) Upon receiving reasonable prior notice to the Managing Member, all books and records of the Company and the Project Company shall be open to inspection and copying by any of the Members or their Representatives during business hours and at such Member’s expense, for any purpose reasonably related to such Member’s interest in the Company, provided that any such inspection or copying is conducted in a manner which does not unreasonably interfere with the Company’s business.

Section 7.3 Bank Accounts, Notes and Drafts.

(a) All funds not required for the immediate needs of the Company shall be placed in Permitted Investments, which investments shall have a maturity appropriate for the anticipated cash flow needs of the Company. All Company funds shall be deposited and held in accounts which are separate from all other accounts maintained by the Members and the Administrator, and the Company’s funds shall not be commingled with any funds of any other Person, including the Project Company, any Administrator, any Member or any Affiliate of a Administrator or a Member.

(b) The Members acknowledge that the Company may maintain Company funds in accounts, money market funds, certificates of deposit, other liquid assets in excess of the

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insurance provided by the Federal Deposit Insurance Corporation, or other depository insurance institutions and that neither the Managing Member nor the Administrator nor the Company shall be accountable or liable for any loss of such funds resulting from failure or insolvency of the depository institution, so long as any such maintenance of funds is in compliance with the first sentence of Section 7.3(a).

(c) Checks, notes, drafts and other orders for the payment of money shall be signed by such officers of the Company, or the Managing Member, as the Company from time to time may authorize. When the Company so authorizes, the signature of any such Person may be a facsimile.

Section 7.4 Financial Statements.

(a) As soon as practicable after the end of each Quarter, but in any event [***], the Managing Member shall cause the Administrator to furnish to each Member unaudited financial statements with respect to such Quarter for the Company and the Project Company prepared in accordance with GAAP and consisting of (i) a balance sheet showing the Company’s and the Project Company’s financial position as of the end of such Quarter, (ii) profit and loss statements for the Company and the Project Company for such Quarter, and (iii) a statement of cash flows for the Company and the Project Company for such Quarter. Such statements shall include a statement of Members’ equity based on hypothetical liquidation at book value (HLBV) accounting.

(b) By [***] after the end of each Fiscal Year, the Managing Member shall cause the Administrator to furnish to each Member consolidated financial statements with respect to such Fiscal Year for the Company that are audited and certified by an Accounting Firm and prepared in accordance with GAAP, consisting of (i) a balance sheet showing the Company’s financial position as of the end of such Fiscal Year, (ii) profit and loss statements for the Company for such Fiscal Year, (iii) a statement of cash flows for the Company for such Fiscal Year and (iv) related footnotes. Such statements shall include a statement of Members’ equity based on hypothetical liquidation at book value (HLBV) accounting.

(c) By [***] after the end of each Fiscal Year, the Managing Member shall cause the Administrator to furnish to each Member unaudited financial statements with respect to such Fiscal Year for the Company and the Project Company prepared in accordance with GAAP and consisting of (i) a balance sheet showing the Company’s and the Project Company’s financial position as of the end of such Fiscal Year, (ii) profit and loss statements for the Company and the Project Company for such Fiscal Year, (iii) a statement of cash flows for the Company and the Project Company for such Fiscal Year. Such statements shall include a statement of Members’ equity based on hypothetical liquidation at book value (HLBV) accounting.

[***] Confidential Treatment Requested

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Section 7.5 Partnership Status and Tax Elections.

(a) The Members intend that the Company will be taxed as a partnership for United States federal, state and local income tax purposes. The Members agree not to elect to be excluded from the application of Subchapter K of Chapter 1 of Subtitle A of the Code or any similar state statute and agree not to elect for the Company to be treated as a corporation, or an association taxable as a corporation, under the Code or any similar state statute.

(b) The Company will make the following elections on the appropriate Tax Returns:

(i) any election necessary to qualify for the Grant and prevent a Class A Recapture Event as it relates to the Grant, or if the Grant is determined by the Members (by a Class Majority Vote) to not be available, any election or claim of any Alternative Tax Program that the Members have decided to elect or claim pursuant to a Class Majority Vote; provided that if the Company and the Project Company seek to claim the ITC, the Members agree to negotiate in good faith and execute any amendments to any of the Transaction Documents, enter into any additional agreements and take all such additional actions as may be reasonably required to effect such an election;

(ii) to the extent permitted under Section 706 of the Code, to adopt as the Company’s fiscal year the calendar year;

(iii) to adopt the accrual method of accounting;

(iv) if a distribution of the Company’s property as described in Section 734 of the Code occurs or a transfer of Membership Interest as described in Section 743 of the Code occurs, to elect pursuant to Section 754 of the Code to adjust the basis of the Company’s properties;

(v) to elect to amortize the organizational expenses of the Company ratably over a period of 180 months as permitted by Section 709(b) of the Code;

(vi) to elect out of additional first year depreciation pursuant to Section 168(k)(2)(D)(iii) of the Code, unless, after consultation with the Class B Member, the Class B Member requests in writing that this election not be made; and

(vii) if approved in writing by Members representing a Class Majority Vote, any other election the Managing Member may deem appropriate.

(c) The Company shall file an election under Section 6231(a)(1)(B)(ii) of the Code and the Treasury Regulation thereunder to treat the Company as a partnership to which the provisions of Sections 6221 through 6234 of the Code, inclusive, apply.

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Section 7.6 Company Tax Returns. The United States federal income Tax Returns for the Company and all other Tax Returns of the Company shall be prepared as directed by the Managing Member in Consultation with the other Members. If a Member notifies the Managing Member that any real property Taxes with respect to the Systems were assessed against or invoiced to such Member, then the Managing Member will cause the Company to pay such Taxes in full and in a timely manner, provided, further, that with respect to each Tax Year ending on the last Friday of November, the Managing Member will cause the Company to prepare preliminary Tax Returns and issue preliminary K-1’s to the Members no later than February 1 of the following Tax Year. The Managing Member, in Consultation with the other Members, may extend the time for filing any such Tax Returns as provided for under applicable statutes; provided that, in the event of any such extension, the Managing Member shall provide the other Members with an estimate of the Taxes owed within 20 days of the filing of such extension. At the Company’s expense, the Managing Member shall cause the Company to retain an Accounting Firm to prepare or review and sign the necessary federal and state income Tax Returns and information returns for the Company. Each Member shall provide such information, if any, as may be reasonably needed by the Company for purposes of preparing such Tax Returns, provided that such information is readily available from regularly maintained accounting records. At least 30 days prior to filing the federal and state income Tax Returns other than information returns, the Managing Member shall cause the Administrator to deliver to the other Members for their review a copy of the Company’s federal and state income Tax Returns, excluding information returns, in the form proposed to be filed for each Fiscal Year together with a notice of any inconsistencies with the Base Case Model, and shall cause the Administrator to incorporate all reasonable changes or comments to such proposed Tax Returns requested by the other Members (who shall be required to make all reasonable efforts to provide such changes or comments in a reasonable amount of time) at least 10 days prior to the filing date for such returns. The dispute provisions under Section 11.11 may be invoked if Class B Members owning more than 50% of the Class B Membership Interests disagree with a position taken on any Tax Return; provided that the Accounting Firm preparing the Tax Return still must be able to sign the Tax Return consistent with the resolution of the dispute; provided, further that if the dispute process would not be completed by the date that the Tax Return must be filed under this Section 7.6, then the Managing Member will cause the Company to file the Tax Return as originally prepared by the required date, but the Managing Member may be required to cause the Company to amend the Tax Return after a conclusion is reached in the dispute process; and provided still further that in the event such challenge confirms the original position in question, the challenging Class B Member shall promptly pay all of the Accounting Firm’s reasonable fees and expenses incurred in connection with such challenge. After taking into account any such requested changes, the Managing Member shall cause the Company to timely file, taking into account any applicable extensions, such Tax Returns. Within 20 days after filing such federal and state income Tax Returns and information returns, the Managing Member shall cause the Company to deliver to each Member a copy of the Company’s federal and state income Tax Returns and information returns as filed for each Fiscal Year, together with any additional tax-related information in the possession of the Company that such Member may reasonably and timely request in order to properly prepare its own income Tax Returns.

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Section 7.7 Tax Audits.

(a) Clean Technologies is hereby designated as the initial “tax matters partner,” as that term is defined in Section 6231(a)(7) of the Code (the “Tax Matters Partner”), of the Company, with all of the rights, duties and powers provided for in Sections 6221 through 6234 of the Code, inclusive. Each other Member may provide the Secretary of Treasury with notice that it is a “notice partner” under Section 6223 of the Code. Clean Technologies is hereby directed and authorized to take whatever steps Clean Technologies, in its reasonable discretion, deems necessary or desirable to perfect such designation, including filing any forms or documents with the IRS, taking such other action as may from time to time be required under the Treasury Regulations and directing the Administrator to take any of the foregoing actions. Clean Technologies shall remain as the Tax Matters Partner so long as it remains the Managing Member and retains any ownership interests in the Company unless Clean Technologies requests that it not serve as Tax Matters Partner and such request is approved by (i) a Class Majority Vote, if such request is made prior to the Flip Date or (ii) a Majority Vote, if such request is made after the Flip Date, or if Members collectively holding more than 50% of the Class B Membership Interests reasonably determine to remove the Tax Matters Partner for fraud or willful misconduct and appoint a replacement.

(b) The Tax Matters Partner, in Consultation with the other Members, shall direct, or cause the Administrator to direct, the defense of any claims made by the IRS to the extent that such claims relate to the adjustment of Company items at the Company level, except that the strategy to be taken in connection with any such defense and the selection of counsel shall be approved by (i) a Class Majority Vote, if the claims relate to periods before the Flip Date, (ii) a Majority Vote, if such claims relate to periods after the Flip Date or (iii) a unanimous vote of the Class B Members, if such claims relate to the Grant. The Tax Matters Partner shall cause the Company to retain and to pay the fees and expenses of counsel approved as described in the preceding sentence and to pay the fees and expenses of other advisors chosen by the Tax Matters Partner in Consultation with the other Members. The Tax Matters Partner shall promptly deliver, or shall cause the Administrator to promptly deliver, to each Member a copy of all notices, communications, reports and writings received from the IRS by the Company relating to or potentially resulting in an adjustment of Company items, shall promptly advise, or cause the Administrator to promptly advise, each Member of the substance of any conversations with the IRS in connection therewith and shall keep, or cause the Administrator to keep, the Members advised of all developments with respect to any proposed adjustments that come to its or the Administrator’s, as the case may be, attention. In addition, the Tax Matters Partner shall or shall cause the Administrator to (A) provide each Member with a draft copy of any correspondence or filing to be submitted by the Company in connection with any administrative or judicial proceedings relating to the determination of Company items at the Company level reasonably in advance of such submission, (B) incorporate all reasonable changes or comments to such correspondence or filing, approved or recommended by Members collectively holding more than 50% of the Class B Membership Interests timely requested by any Member and (C) provide each Member with a final copy of correspondence or filing. The Tax Matters Partner will provide, or cause the Administrator to provide, each Member with notice reasonably in advance of any

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meetings or conferences with respect to any administrative or judicial proceedings relating to the determination of Company items at the Company level (including any meetings or conferences with counsel or advisors to the Company with respect to such proceedings) and each Member shall have the right to participate, at its sole cost and expense, in any such meetings or conferences.

(c) For any issue or matter relating to the period prior to the Flip Date without the approval of Members collectively holding more than 50% of the Class B Membership Interests, the Tax Matters Partner shall not (i) commence a judicial action (including filing a petition as contemplated in Section 6226(a) or Section 6228 of the Code) with respect to a federal income tax matter or appeal any adverse determination of a judicial tribunal; (ii) intervene in any action as contemplated by Section 6226(b) of the Code; (iii) file any request contemplated in Section 6227(b) of the Code; or (iv) enter into an agreement extending the period of limitations as contemplated in Section 6229(b)(1)(B) of Code. For any issue or matter relating to the period prior to the Flip Date without the approval of each of the other Members, the Tax Matters Partner shall not enter into a settlement agreement with the IRS which purports to bind the Members. Any cost or expense incurred by the Tax Matters Partner in connection with its duties as Tax Matters Partner shall be paid by the Company. If the Grant is determined to be unavailable in accordance with the procedures set forth in Section 7.5(b)(i), the Tax Matters Partner shall elect or claim an Alternative Tax Program only in accordance with Section 7.5(b)(i).

(d) If for any reason the IRS disregards the election made by the Company pursuant to Section 7.5(c) and commences any audit or proceeding in which it makes a claim, or proposes to make a claim, against any Member that could reasonably be expected to result in the disallowance or adjustment of any items of income, gain, loss, deduction or credit allocated to such Member by the Company, then such Member shall promptly advise the other Members of the same, and such Member, in Consultation with the other Members, shall use commercially reasonable efforts to convert the portion of such audit or proceeding that relates to such items into a Company level proceeding consistent with the Company’s election pursuant to Section 7.5(c).

(e) If any Member intends to file, pursuant to Section 6227 of the Code, a request for an administrative adjustment of any such partnership item of the Company, or to file a petition under Sections 6226, 6228 or other Sections of the Code with respect to any such partnership item or any other tax matter involving the Company, such Member shall, at least thirty (30) days prior to any such filing, notify the other Members of such intent, which notification must include a reasonable description of the contemplated action and the reasons for such action; provided, however, that this Section 7.7(e) shall not relieve such Member’s obligation to use all commercially reasonable efforts to convert a Member level proceeding into a Company level proceeding as provided in Section 7.7(d).

Section 7.8 Cooperation. Subject to the provisions of this Article VII, each Member shall provide the other Members with such assistance as may reasonably be requested

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by such other Members in connection with the preparation of any Tax Return, any audit or other examination by any taxing authority, or any judicial or administrative proceedings relating to the liability for any Taxes with respect to the operations of the Company and the Project Company or a Class A Recapture Event.

Section 7.9 Fiscal Year. The fiscal year of the Company (the “Fiscal Year”) shall be the same as the taxable year of the Company. The taxable year of the Company will be a year that ends on the last Friday of each November, or such other year as may be required by applicable federal income tax law.

ARTICLE VIII

MANAGEMENT

Section 8.1 Management. Each of the Members acknowledges and agrees that the Administrator shall have the authority, powers and responsibilities described in the Administrative Services Agreement and as provided herein; provided that neither the Administrator nor the Managing Member shall (x) take or permit any action that would be a Major Decision hereunder without the prior occurrence of a Class Majority Vote approving such action, or (y) refrain from taking any action that has been approved as a Major Decision hereunder. The Company hereby ratifies and approves the Administrative Services Agreement. Except (a) for duties and powers delegated to the Administrator hereunder or under the Administrative Services Agreement, (b) for Major Decisions and (c) as otherwise required by applicable Legal Requirements, the powers of the Company shall be exercised by or under the authority of, and the business and affairs of the Company shall be managed under the direction of the Managing Member. In addition, the Members may, with the consent of the Managing Member or Administrator, as applicable, vest in the Managing Member or the Administrator the authority to take actions for and on behalf of the Company not otherwise provided for in this Agreement or the Administrative Services Agreement. Any such vested authority shall require a Class Majority Vote.

Section 8.2 Managing Member.

(a) The Managing Member shall be the Member designated to act as such hereunder from time to time in accordance with the provisions of this Section 8.2 (the “Managing Member”). The initial Managing Member shall be Clean Technologies. The Managing Member shall cause the Company and cause the Company to cause the Project Company to enforce the Administrative Services Agreement and the MOMA (and any other Material Contracts with Affiliates of Bloom or Clean Technologies) on behalf of the Company and the Project Company; provided, however, that, in the event that the Administrative Services Agreement is terminated and is not replaced, the Managing Member shall perform the work, or engage a third party to perform such work, previously performed by the Administrator prior to the termination of such Administrative Services Agreement in accordance with the Prudent Operator Standard, or if not in accordance with such standard, if approved in advance or ratified by Class B Members owning at least a majority of the Class B Membership Interests.

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(b) Upon the termination of the MOMA, the Managing Member shall cause the Company to replace the MOMA in accordance with Section 8.3 and the definition of “Major Decisions” and, to the extent such replacement MOMA is not with an Affiliate of Clean Technologies, the operator (or an affiliate thereof, if the operator’s obligations thereunder are being guaranteed by such affiliate) under such replacement MOMA shall have substantial experience operating and maintaining comparable equipment.

(c) The Managing Member hereby covenants to cause the Company to, and to cause the Company to cause the Project Company to, implement any Major Decisions approved under this Company LLC Agreement, and not to take any Major Decisions (or comparable decision at the Project Company level) without a Class Majority Vote.

(d) Clean Technologies may resign as Managing Member with any such resignation to become effective upon the appointment of a successor Managing Member under this paragraph that is recognized nationally as having substantial experience managing and operating fuel cell facilities or if such transferee has engaged such an experienced and recognized company to manage the Company at substantially the same cost as under the Administrative Services Agreement. The Members, by a Class Majority Vote prior to the Flip Date and by a Majority Vote thereafter, may at any time (i) remove a Managing Member (x) upon their reasonable determination that there is Cause for removal, or (y) following any Bankruptcy of the Managing Member or foreclosure or involuntary transfer of the Class A Membership Interests held by the Managing Member (or any Bankruptcy of any Person that Controls the Managing Member), and (ii) fill any vacancy as Managing Member caused by removal, resignation or otherwise. The Managing Member may not participate in, and any Membership Interests owned by Clean Technologies or an Affiliate thereof shall be excluded from, any vote to remove or replace a Managing Member under this Section 8.2(d) if the basis alleged for removal of the Managing Member is for Cause.

(e) The Managing Member may, from time to time, designate one or more officers with such titles as may be designated by the Managing Member to act in the name of the Company with such authority as is delegated to the Managing Member hereunder and as may be delegated to such officer(s) by the Managing Member. The current officers are the persons listed on Schedule 8.2(e).

(f) If an event occurs which would permit the Project Company to terminate in whole, or with respect to specific Systems, the MOMA and/or the MESPA, pursuant to the terms thereunder, provided that any applicable cure period has expired without the event in question having been cured, a majority of the Class B Members, without the consent or approval of the Class A Members, shall be entitled to instruct the Managing Member to cause the Company to cause the Project Company to terminate in whole or in part the MOMA or the MESPA and the Managing Member shall promptly act in accordance with such instructions.

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Section 8.3 Major Decisions.

(a) In addition to any other approval required by applicable Legal Requirements or this Agreement, Major Decisions are reserved to the Members, and none of the Company, the Managing Member, the Administrator, or any officer thereof shall do or take or make or approve any Major Decisions with respect to the Company or the Project Company without a Class Majority Vote.

(b) The Managing Member will submit proposed Major Decisions to the Class B Member in writing in accordance with Section 11.1 for their approval, with each submission setting forth in reasonable detail the Major Decision proposed and the basis for the Managing Member’s recommendation. Upon receipt of the written submission, the Class B Members will have ten (10) Business Days therefrom to approve or reject the proposal by Class B Members owning a majority of the Class B Membership Interests. If the proposed Major Decision is not approved or rejected by Class B Members owning a majority of the Class B Membership Interests in writing within such period, such proposed Major Decision will be deemed rejected.

Section 8.4 Insurance. The Managing Member shall cause the Company to acquire and maintain (including making changes to coverage and carriers) the casualty, general liability (including product liability), property damage and/or other types of insurance set forth in Schedule 8.4 and the Insurance Report; provided that if any such insurance is not available on commercially reasonable terms, only such insurance shall then be required to be carried pursuant to this Section 8.4 as is then available on commercially reasonable terms. The Class B Members shall be added to such insurance as additional insured and loss payee as their interests may appear, with a waiver of subrogation permitted in their favor (where legally permitted or insurance market practice permits). Such insurance shall require that the Class B Members be provided with 30 days written notice of cancellation (10 days for non-payment of premium). The Managing Member shall cause to be delivered to each Class B Member, promptly after it becomes a Member, certificates from a reputable insurance broker evidencing the maintenance of the insurance required by this Section 8.4, which certificates shall be replaced or updated to reflect any replacement, renewal or other change to the insurance evidenced thereby, or the addition of any policy not then reflected on the most recently delivered certificates.

Section 8.5 Notice of Material Breach. The Managing Member shall promptly notify the Class B Member (but in no event more than within five Business Days of obtaining actual knowledge) of any (a) notice of default delivered by a party to a Material Contract to the Project Company, the Administrator or the Managing Member or (b) default by a party to a Material Contract (other than a Project Company, the Administrator or any Affiliate thereof) under such Material Contract, in the case of either (a) or (b), which default could reasonably be expected to cause material harm to the Company or any Project Company.

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ARTICLE IX

TRANSFERS, CHANGES OF CONTROL AND INDEMNIFICATION

Section 9.1 Prohibited Transfers. No Member shall sell, transfer, assign, convey, pledge, mortgage, encumber, hypothecate or otherwise dispose of all or any part of its Membership Interests or any interest, rights or obligations with respect thereto, or permit a Change of Control of any entity subject to a restriction on Change of Control under this Article IX (any such action, a “Transfer”), except as provided in this Article IX. Prior to the end of the Recapture Period with respect to any System, no Transfer of a Person that directly or indirectly owns an interest in a Member will be permitted if the transfer would cause the Company or Project Company to become a Disqualified Person or cause the Systems, or any portion thereof, to be classified as “tax-exempt use property” for purposes of Section 168 of the Code. After the Recapture Period has ended, the limitations pursuant to this Article IX on Change of Control of any Member shall apply only to such Member directly and shall not apply to any Person that directly or indirectly owns an interest in such Member. Any attempted Transfer of a Membership Interest that does not comply with this Article IX shall be null and void and not recognized by the Company for any purpose.

Section 9.2 Conditions to Transfers of Class A Membership Interests or Changes of Control of Managing Member. Except as otherwise provided in this Article IX, all Transfers of Class A Membership Interests and all Transfers by Bloom of its interests in Clean Technologies must satisfy the following conditions:

(a) The transferring Member must give written notice of the proposed Transfer to each of the Members not less than 10 days prior to the effective date of the proposed Transfer.

(b) The transferring Member and the prospective transferee must each execute, acknowledge and deliver to the Company (as applicable) an assignment agreement substantially in the form of Exhibit D and such other instruments as the other Members may reasonably deem necessary or appropriate to confirm the transferor’s intention that the transferee become a Member in its place and the transferee’s undertaking to be bound by the terms of this Agreement and to assume the obligations of the transferor under this Agreement and, to the extent the transferor is to be released from such obligations, the ECCA. The prospective transferee shall make the representations and warranties and be bound by the covenants in Sections 3.11 and 3.12 as of the date of such Transfer; provided that, unless the transferee becomes the Managing Member the covenants in Sections 3.12(b), (c), (d), (g) and (h) shall not apply;

(c) The Transfer will not violate any securities laws or any other applicable federal or state laws rules or regulations, or the order of any court or administrative body having jurisdiction over the Company or the Project Company or any of their assets or any material contract, lease, security, indenture or agreement binding on the Company or the Project Company or their respective assets;

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(d) The Transfer will not result in a termination of the Company or the Project Company under Section 708(b)(1)(B) of the Code, unless the transferor has indemnified the other Members against any adverse tax effects in a manner reasonably acceptable to the other Members;

(e) The Transfer will not cause the Company or Project Company to become a Disqualified Person or cause the Systems, or any portion thereof, to be classified as “tax-exempt use property” for purposes of Section 168 of the Code;

(f) The Transfer will not cause there to be more than two Class A Members;

(g) The transferring Member and the prospective transferee shall pay any out-of-pocket expenses of the Company, the Project Company or the other Members resulting from the Transfer;

(h) The transferring Member and the prospective transferee shall have all permits and consents required for such Transfer;

(i) The Transfer will not affect the status of the Project Company as an Exempt Wholesale Generator nor will it cause a disqualification under the REPS Act or any of the Tariffs;

(j) The Transfer will not require the Company to register as an investment company under the 1940 Investment Company Act;

(k) If the Transfer would occur prior to the end of the Recapture Period with respect to any of the Systems, the Transfer will not be effective unless the transferring Member delivers a written opinion of a nationally-recognized law firm, in form and substance satisfactory to the non-transferring Members, that the Transfer will not cause a Class A Recapture Event;

(l) Unless the Administrative Services Agreement will remain in place with the same Administrator thereunder following the Transfer (in which case the conditions in this clause (1) will be deemed to be met), the transferee must be recognized nationally as having substantial experience managing and operating fuel cell facilities or a Person that has engaged such an experienced and recognized company to manage the Company at substantially the same cost as under the Administrative Services Agreement, unless otherwise approved by Class B Members owning the majority of Class B Membership Interests;

(m) The Transfer must not cause any adverse tax consequences to the Company, any other Member or the Project Company, in the written opinion of tax counsel reasonably acceptable to the Class B Member;

(n) Prior to the Flip Date, the Transferee must be a Qualified Transferee and the Class B Member shall have consented to such Transfer, such consent not to be unreasonably withheld; and

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(o) The Transfer will not cause a breach of, or a default under, the Credit Documents.

Section 9.3 Conditions to Transfers of Class B Membership Interests. Except as otherwise provided in this Article IX, all Transfers of Class B Membership Interests must satisfy the following conditions:

(a) The transferring Member must give written notice of the proposed Transfer to each of the Members not less than 10 days prior to the effective date of the proposed Transfer;

(b) The transferring Member and the prospective transferee must each execute, acknowledge and deliver to the Company (as applicable) an assignment agreement substantially in the form of Exhibit D and such other instruments as the Managing Member may reasonably deem necessary or appropriate to confirm the transferor’s intention that the transferee become a Member in its place and the transferee’s undertaking to be bound by the terms of this Agreement and to assume the obligations of the transferor under this Agreement and, to the extent the transferor is to be released from such obligations, the ECCA;

(c) The Transfer will not violate any securities laws or any other applicable federal or state laws rules or regulations, or the order of any court or administrative body having jurisdiction over the Company or the Project Company or any of their assets or any material contract, lease, security, indenture or agreement binding on the Company or the Project Company or their respective assets;

(d) The Transfer will not result in a termination of the Company or the Project Company under Section 708(b)(1)(B) of the Code, unless the transferor has indemnified the other Members against any adverse tax effects in a manner reasonably acceptable to the other Members;

(e) The Transfer will not cause the Company or Project Company to become a Disqualified Person or cause the Portfolio, or any portion thereof, to be classified as “tax-exempt use property” for purposes of Section 168 of the Code;

(f) The Transfer will not cause there to be more than three Class B Members; provided that, solely for purposes of making such determination in respect of this paragraph, any Class B Member and any other Class B Member that is an Affiliate of such Class B Member shall be deemed to be a single Class B Member;

(g) The transferring Member and the prospective transferee shall pay any out- of-pocket expenses of the Company, the Project Company or the other Members resulting from the Transfer;

(h) The transferring Member and the prospective transferee shall have all permits and consents required for such Transfer;

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(i) The Transfer will not affect the status of any Project Company as an Exempt Wholesale Generator nor will it cause a disqualification under the REPS Act or any of the Tariffs;

(j) The Transfer will not require the Company to register as an investment company under the 1940 Investment Company Act;

(k) If the Transfer would occur prior to the end of the Recapture Period for any of the Systems, the Transfer will not be effective unless the transferring Member delivers a written opinion of a nationally-recognized law firm, in form and substance satisfactory to the non-transferring Members, that the Transfer will not cause a Class B Recapture Event;

(l) Transferee shall be reasonably acceptable to the Class A Members.

(m) Such Transfer by a Class B Member, other than a Transfer to an Affiliate of the transferor or a Transfer to an existing Class B Member, shall not be a Transfer of less than an amount equal to the lesser of (i) 30% of the total Class B Membership Interests or (ii) such Member’s entire Class B Membership Interest;

(n) For Transfers prior to the earlier of (i) the contribution by the Class B Member to the Company of 100% of its Equity Commitment Amount or (ii) the Subsequent Funding Termination Date, the transferee must carry an investment grade senior unsecured rating of at least A3 / A- or the [***] Guaranty must be in full force and effect;

(o) Except for transfers described in Section 9.5 below, the transferee of a Class B Membership Interest must be a passive institutional investor or (i) is not a competitor of Clean Technologies or its affiliates, (ii) is not in litigation or other material dispute with the Clean Technologies, and (iii) makes substantially the same representations, warranties, and covenants as Class B Members made pursuant to this Agreement;

(p) Transfer must not cause any adverse tax consequences to the Company, any other Member or the Project Company, in the written opinion of tax counsel reasonably acceptable to the Managing Member;

(q) The costs of such Transfer must be borne by the transferee; and

(r) The Transfer will not cause a breach of, or a default under, the Credit Documents.

Section 9.4 Conditions to Changes of Control of Upstream Entities. With respect to any Transfer that is a Change of Control of a Member:

(a) The Transfer will not violate any securities laws or any other applicable federal or state laws rules or regulations, or the order of any court or administrative body having jurisdiction over the Company or the Project Company or any of their assets or any material contract, lease, security, indenture or agreement binding on the Company or the Project Company or their respective assets;

[***] Confidential Treatment Requested

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(b) The Transfer will not result in a termination of the Company or the Project Company under Section 708(b)(1)(B) of the Code, unless the transferor has indemnified the other Members against any adverse tax effects in the manner set forth in Section 9.4(h);

(c) The Transfer will not cause the Company or Project Company to become a Disqualified Person or cause the Portfolio, or any portion thereof, to be classified as “tax-exempt use property” for purposes of Section 168 of the Code;

(d) The transferring Person and the prospective transferee shall pay any out-of-pocket expenses of the Company, the Project Company or the other Members resulting from the Transfer;

(e) The transferring entity and the prospective transferee shall have all permits and consents required for such Transfer as they apply to the Company and the Project Company;

(f) The Transfer will not affect the status of any Project Company as an Exempt Wholesale Generator nor will it cause a disqualification under the REPS Act or any of the Tariffs;

(g) The Transfer will not require the Company to register as an investment company under the 1940 Investment Company Act; and

(h) With respect to any Transfer that would result in the termination of the Company or the Project Company as set forth in Section 9.4(b), the transferring Member shall indemnify the Company and the other Members against any adverse effects in a manner reasonably acceptable to the other Members. In connection with such Transfer, the transferring Member shall (i) deliver to each non-transferring Member a guaranty (A) from an entity acceptable to the non-transferring Members having the Required Ratings on the effective date of such Transfer, (B) in an amount not less than the aggregate estimated adverse tax effects with respect to such Transfer and (C) in form and substance satisfactory to the non-transferring Members, or (ii) post collateral in the form of (A) cash, (B) a letter of credit from an Acceptable Credit Party, or (C) liquid securities acceptable to the non-transferring Members, in an amount not less than the aggregate estimated adverse tax effects with respect to such Transfer and in each case in form and substance acceptable to the non-transferring Members.

Section 9.5 Certain Permitted Transfers. Except as otherwise provided in Section 9.1 and this Section 9.5, notwithstanding the provisions set forth in Sections 9.2 and 9.3, the following Transfers (the “Permitted Transfers”) may be made at any time and from time to time, without restriction and without notice to, approval of, filing with, consent by, or other action of or by, any Member or other Person:

(a) The issuance of Class B Membership Interests to [***] pursuant to the ECCA;

[***] Confidential Treatment Requested

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(b) (i) The grant of any security interest in any Class A Membership Interest or any Class B Membership Interest pursuant to any security agreement any Class A Member or Class B Member, as applicable, may enter into with lenders; provided that the requirements in Sections 9.2(a), (c), (d) and (e) shall be satisfied in respect of any such grant of a security interest in Class A Membership Interests, and Sections 9.3(a), (c), (d) and (e) shall be satisfied in respect of a grant of a security interest in a Class B Membership Interest, and (ii) any Transfer in connection with any foreclosure or other exercise of remedies in respect of any Class A Membership Interest or Class B Membership Interest subject to a security interest referred to in this Section 9.5(b)(i); provided, however, that the requirements in Sections 9.2(a), (b), (c), (d), (e), (f), (h), (i), (j), (k), (l) and (m) shall be satisfied in respect of any such Transfer of Class A Membership Interests and the requirements in Sections 9.3(a), (b), (c), (d), (e), (f), (h), (i), (j), (k), (l) and (m) shall be satisfied in respect of any such Transfer of Class B Membership Interests; and provided, further that the provisions of Section 9.2(f) (with respect to Class A Membership Interests) and Section 9.3(f) (with respect to Class B Membership Interests) shall not apply to any Transfer resulting from foreclosure upon, or subsequent transfer of, such Membership Interests;

(c) The Transfer of any Membership Interest solely to an Affiliate of a Member; provided, the requirements set forth in Sections 9.2(a), (b), (c), (d), (e), (f), (g), (h), (i), (j), (k), (l), and (m) shall be satisfied in respect to such Transfer of Class A Membership Interests, and, in the case of a Transfer by a Class B Member, the requirements set forth in Sections 9.3, except the requirement in Section 9.3(a), which requirement shall be deemed satisfied upon a three day notice, and except the requirements in Sections 9.3(b), (g), (k), (l), (n), (p) and (q), shall be satisfied with respect to such Transfer of Class B Membership Interests (though the requirement in Section 9.3(k) must be met if the transferee is an entity other than an association taxable as a corporation for federal income tax purposes); and

(d) Any Transfer in accordance with Section 9.7 (Purchase Option) or Section 9.8 (Sale Option); provided, however, that the requirements in Sections 9.3(b) and (c) shall be satisfied in respect of any such Transfer, and solely with respect to a Transfer pursuant to Section 9.4, Sections 9.3(c), (d), (e), (g), (i), (j) and (k), shall be satisfied in respect of any such Transfer.

Section 9.6 [Intentionally omitted].

Section 9.7 Purchase Option.

(a) The Class A Member shall have the right, but not the obligation (the “Purchase Option”), on the eleventh anniversary of the Initial Funding Date (the “Purchase Option Date”), upon giving the Company and all other Members 60 days’ written notice, to purchase all (but not less than all) of the outstanding Class B Interests from all of the Class B Members by exercise of the Purchase Option (the “Purchase Option Exercise Notice”).

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(b) The consideration for the Transfer of the Class B Membership Interests to the Class A Member pursuant to the Purchase Option shall be an amount (payable in United States dollars) equal to the Purchase Option Price.

(c) If the Purchase Option is exercised, the closing of such Transfer shall occur on the Business Day that is (i) 60 days after the applicable Purchase Option Exercise Notice is given or (ii) such later date as may be required to obtain either a determination of the Purchase Option Price or any applicable consents or approvals or satisfy any reporting or waiting period under any applicable Legal Requirements.

(d) If the Purchase Option is exercised, at the closing of the Transfer, (1) each Class A Member which has given a Purchase Option Exercise Notice shall pay (by wire transfer of immediately available United States dollars to such United States bank accounts as Class B Members may designate in a written notice to the Company and Class A Members no later than five Business Days prior to the closing date for the Transfer pursuant to the Purchase Option) an amount equal to the Purchase Option Price (determined in accordance with Section 9.7(b)), and (2) each Class B Member shall take the following actions: (i) such Class B Member shall Transfer to the applicable Class A Member all right, title and interest in and to the Class B Membership Interests, free and clear of all Encumbrances other than Permitted Encumbrances; (ii) such Class B Member shall be required to make the representations on Schedule 9 attached hereto to the applicable Class A Member and the Company; and (iii) such Class B Member shall take all such further actions and execute, acknowledge and deliver all such further documents that are necessary to effectuate the Transfer of the Class B Membership Interests contemplated by this section. Upon the closing of such Transfer, (1) all of such Class B Member’s obligations and liabilities associated with the Class B Membership Interests which are the subject of such Transfer will terminate except those obligations and liabilities accrued through the date of such closing, (2) such Class B Member shall have no further rights as a Member, and (3) all the rights, obligations and liabilities associated with the Class B Membership Interests which are the subject of such Transfer shall become the rights, obligations and liabilities of each Person acquiring such Class B Membership Interests.

Section 9.8 Sale Option.

(a) The Class B Member shall have the right, but not the obligation (the “Sale Option”), on the tenth anniversary of the Execution Date (the “Sale Option Date”), upon giving the Company and all other Members at least 60 days’ advance written notice, to sell all (and not less than all) of its Class B Membership Interests to the Class A Member by exercise of the Sale Option (the “Sale Notice”).

(b) The consideration for the Transfer of the Class B Membership Interests to the Class A Member pursuant to the Sale Option shall be an amount (payable in United States dollars) equal to the Sale Price.

(c) If the Sale Option is exercised, the closing of such Transfer shall occur on (i) the tenth anniversary of the Execution Date (or, if not a Business Day, the Business Day

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immediately preceding the tenth anniversary of the Execution Date) or (ii) such later date as may be required to obtain either a determination of the Sale Price or any applicable consents or approvals or satisfy any reporting or waiting period under any applicable Legal Requirements.

(d) If the Sale Option is exercised, at the closing of the Transfer, (1) each Class A Member which has received a Sale Notice shall pay (by wire transfer of immediately available United States dollars to such United States bank accounts as a Class B Member selling its respective Class B Interests may designate in a written notice to the Company and Class A Members no later than five Business Days prior to the closing date for the Transfer pursuant to the Sale Option) an amount equal to the Sale Price (determined in accordance with Section 9.8(b)), and (2) such Class B Member shall take the following actions: (i) such Class B Member shall Transfer to the applicable Class A Member all right, title and interest in and to the Class B Membership Interests, free and clear of all Encumbrances other than Permitted Encumbrances; (ii) such Class B Member shall be required to make the representations on Schedule 9 attached hereto to the applicable Class A Member and the Company; and (iii) such Class B Member shall take all such further actions and execute, acknowledge and deliver all such further documents that are necessary to effectuate the Transfer of the Class B Membership Interests contemplated by this section. Upon the closing of such Transfer, (A) all of such Class B Member’s obligations and liabilities associated with the Class B Membership Interests which are the subject of such Transfer will terminate except those obligations and liabilities accrued through the date of such closing, (B) such Class B Member shall have no further rights as a Member, and (C) all the rights, obligations and liabilities associated with the Class B Membership Interests which are the subject of such Transfer shall become the rights, obligations and liabilities of each Person acquiring such Class B Membership Interests.

Section 9.9 Regulatory and Other Authorizations and Consents.

(a) In connection with any Transfer pursuant to Sections 9.7 or 9.8 (the “Designated Transfers”), each Member involved shall use all commercially reasonable efforts to obtain all authorizations, consents, orders and approvals of, give all notices to and make all filings with, all Governmental Authorities and third parties that may be or become necessary for the Designated Transfers, its execution and delivery of, and the performance of its obligations under, this Agreement or other Transaction Documents in connection with any such Designated Transfer and will cooperate fully with the other Members in promptly seeking to obtain all such authorizations, consents, orders and approvals, giving such notices and making such filings, including the provision to such third parties and Governmental Authorities of such financial statements and other publicly available financial information with respect to such Member or, if applicable, such Member’s guarantor, as the case may be, as such third parties or Governmental Authorities may reasonably request; provided, however, that no Member involved shall have any obligation to pay any consideration to obtain any such consents. In addition, the Members involved shall keep each other reasonably apprised of their efforts to obtain necessary consents and waivers from third parties or Governmental Authorities and the responses of such third parties and Governmental Authorities to requests to provide such consents and waivers.

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(b) Without limiting the generality of Section 9.9(a), each Member shall make such filings as may be required under the HSR Act, the Federal Power Act, or any state Legal Requirements relating to the ownership or control of the Systems.

(i) To the extent required by the HSR Act, each Member involved in a Designated Transfer shall (i) file or cause to be filed, as promptly as practicable but in no event later than the fifteenth Business Day after the delivery of any Purchase Option Exercise Notice, as applicable, with the Federal Trade Commission and the United States Department of Justice, all reports and other documents required to be filed by such Member under the HSR Act concerning the Designated Transfer and (ii) promptly comply with or cause to be complied with any requests by the Federal Trade Commission or the United States Department of Justice for additional information concerning the Designated Transfer, in each case so that the initial thirty day waiting period applicable under the HSR Act shall expire as soon as practicable. Each Member involved in a Designated Transfer agrees to request, and to cooperate with the other Members involved in requesting, early termination of any applicable waiting period under the HSR Act. Each of the Class A Members involved in a Designated Transfer shall be responsible for the filing fees incurred by all Members involved in the Designated Transfer in connection with the initial filings required by the HSR Act in connection with the Designated Transfers (pro rata in proportion to the percentage of Class B Membership Interests each such Class A Member will acquire in connection with the Designated Transfer). Except as expressly provided in the prior sentence with respect to filing fees, each Member involved in a Designated Transfer will be responsible for its own fees and expenses, including any fees and expenses of counsel, accountants or other professional advisors.

(ii) To the extent required by the Federal Power Act, each Member involved in a Designated Transfer shall (i) file or cause to be filed, as promptly as practicable but in no event later than the twenty-first Business Day after the delivery of any Purchase Option Exercise Notice, as applicable, an application for approval of the Designated Transfer pursuant to Section 203 of the Federal Power Act, and (ii) as promptly as practicable but in no event later than the tenth Business Day after the delivery of any Purchase Option Exercise Notice, as applicable, provide to the Company and the Managing Member information needed for the Company to file an application for approval of the Designated Transfer under Section 203 of the Federal Power Act.

Section 9.10 Admission. Any transferee of all or part of any Membership Interests pursuant to a Transfer made in accordance with this Agreement shall be admitted to the Company as a substitute Member upon its execution of a counterpart to this Agreement.

Section 9.11 Security Interest Consent. If any Member grants a security interest in any Membership Interest, upon request by such Member, each other Member will execute and deliver to any person holding such security interest (for itself and/or for the benefit of other lenders) such acknowledgments, consents or other instruments as such person may reasonably request to confirm that such grant and any foreclosure or other exercise of remedies in respect of such Membership constitutes a Permitted Transfer under this Agreement.

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Section 9.12 Indemnification; Other Rights of the Members.

(a) Beginning on the Effective Date (or, with respect to any additional Member that becomes a Member after the Effective Date, on the first date on which such Person becomes a Member hereunder) and continuing thereafter, Clean Technologies agrees to indemnify, defend and hold harmless the Investor Indemnified Parties from and against any and all Investor Indemnified Costs; provided, however, except with respect to Investor Indemnified Costs (t) resulting from fraud or willful misconduct, (u) resulting from failure to pay any amount due to Investor Indemnified Parties under the Transaction Documents, (v) resulting from a Third Party Claim, (w) resulting from the failure to enforce a Material Contract with an Affiliate of the Indemnifying Party, (x) resulting from Project Company (or any of the Systems) not qualifying for (or becoming disqualified under) the REPS Act or the Tariffs as a result of any act or omission by Bloom or any Affiliate of Bloom (including, without limitation, (i) Bloom failing to achieve commercial operation (as defined in the QFCP-RC Tariff) of 5 MW of Systems by March 31, 2013 (unless such date has been extended in accordance with the QFCP-RC Tariff), (ii) Bloom failing to achieve commercial operation (as defined in the QFCP-RC Tariff) of 30 MW of Systems, of which at least 20 MW of Systems were actually manufactured by Bloom in the State of Delaware by September 30, 2014 (unless such date has been extended in accordance with the QFCP-RC Tariff), (iii) Bloom failing to be manufacturing fuel cells capable of being powered by renewable fuels from a permanent manufacturing facility located in the State of Delaware as of the date of Commencement of Operations (as defined in the MESPA) of the full nameplate capacity of the Portfolio, or (iv) any of the acts or omissions set forth in Section 4.3 of the MESPA), (y) resulting from Bloom failing to be in compliance with the Letter Agreement (including, if so required by the State of Delaware, posting the security referred to in the Letter Agreement upon or prior to the Commencement of Operation of the first System) or (z) resulting from any surcharges pursuant to the Tariffs being deemed a tax under Delaware law, in no event will Clean Technologies’ aggregate obligation (including any prior indemnity payments by Clean Technologies under this Agreement or under the ECCA) to indemnify the Investor Indemnified Parties hereunder exceed one hundred percent (100%) of the Funding Payments of the Class B Member made to date.

(b) Beginning on the Effective Date (or, with respect to any additional Member that becomes a Member after the Effective Date, on the first date on which such Person becomes a Member hereunder) and continuing thereafter, the Class B Member agrees to indemnify, defend and hold harmless the Clean Technologies Indemnified Parties from and against any and all Clean Technologies Indemnified Costs; provided, however, except with respect to Clean Technologies Indemnified Costs (w) resulting from fraud or willful misconduct, (x) resulting from failure to pay any amount due to Clean Technologies Indemnified Parties under the Transaction Documents, (y) resulting from a Third Party Claim or (z) resulting from the failure to enforce a Material Contract with an Affiliate of the Indemnifying Party, in no event will the Class B Member’s aggregate obligation (including any prior indemnity payments by the

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Class B Member under this Agreement or under the ECCA) to indemnify the Clean Technologies Indemnified Parties hereunder exceed one hundred percent (100%) of the Funding Payments of the Class B Member made to date.

(c) Other than with respect to Indemnified Costs resulting from Third Party Claims, no claim for indemnification may be made with respect to any Indemnified Costs (other than fraud, willful misconduct, or failure to pay any amount due to Indemnified Parties under any Transaction Document) until the aggregate amount of such costs for which indemnification is (or previously has been) sought by the Indemnified Party under all Transaction Documents exceeds $175,000 and once such threshold amount of claims has been reached, the relevant Indemnified Party and its Affiliates shall have the right to be indemnified only to the extent the amount of Indemnified Costs claimed exceed such threshold amount. Claims for indemnification under this Company LLC Agreement and the other Transaction Documents shall not be duplicative of one another and shall not allow for duplicative recoveries.

Section 9.13 Indemnification of Members by the Company. Each Member and any Affiliate of a Member, and each of their respective officers, directors, shareholders, employees and agents (each, a “Member Party”) shall be exculpated from liability for and defended, indemnified and held harmless by the Company from all Claims arising out of the performance by such Member Party of its obligations under this Company LLC Agreement so long as such Member Party acted in good faith and in a manner reasonably believed by it to be in the best interest of or not opposed to the interest of the Company; provided, however, that no Member Party shall be shall be exculpated from liability for and defended, indemnified and held harmless or entitled to the payment of an indemnity claim under this Article IX.

Section 9.14 Direct Claims. In any case in which an Indemnified Party seeks indemnification under Section 9.12 that is not subject to Section 9.15 because no Third Party Claim is involved, the Indemnified Party shall promptly notify the Indemnifying Party in writing of any amounts that the Indemnified Party claims are subject to indemnification under the terms of this Article IX. The failure of the Indemnified Party to exercise promptness in such notification shall not amount to a waiver of such claim, except to the extent the resulting delay materially and adversely prejudices the position of the Indemnifying Party with respect to such claim.

Section 9.15 Third Party Claims. An Indemnified Party shall give written notice to the Indemnifying Party within 10 days after it has actual knowledge of commencement or assertion of any Third Party Claim in respect of which the Indemnified Party may seek indemnification under Section 9.12. Such notice shall state the nature and basis of such Third Party Claim and the events and the amounts thereof to the extent known. Any failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any liability that the Indemnifying Party may have to the Indemnified Party under this Article IX, except to the extent the failure to give such notice materially and adversely prejudices the Indemnifying Party. In case any such action, proceeding or claim is brought against an Indemnified Party, so long as it has acknowledged in writing to the Indemnified Party that it is liable for such Third Party Claim

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pursuant to this Section 9.15, the Indemnifying Party shall be entitled to participate in and, unless in the reasonable judgment of the Indemnified Party a conflict of interests between it and the Indemnifying Party may exist in respect of such Third Party Claim or such Third Party Claim entails a material risk of criminal penalties or civil fines or non monetary sanctions being imposed on the Indemnified Party or a risk of materially adversely affecting the Indemnified Party’s business (a “Third Party Penalty Claim”), to assume the defense thereof, with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnified Party, and after notice from the Indemnifying Party to the Indemnified Party of its election so to assume the defense thereof, the Indemnifying Party shall not be liable to the Indemnified Party for any legal or other expenses subsequently incurred by the latter in connection with the defense thereof other than reasonable costs of investigation or defending such portion of such Third Party Penalty Claim; provided nothing contained herein shall permit Clean Technologies to control or participate in any Tax contest or dispute involving a Class B Member or any Affiliate of a Class B Member, or permit a Class B Member to control or participate in any Tax contest or dispute involving any Affiliate of Clean Technologies other than the Company and the Project Company; and, provided, further, the Parties agree that the handling of any Tax contests involving the Company will be governed by Section 7.7. In the event that (i) the Indemnifying Party advises an Indemnified Party that the Indemnifying Party will not contest a claim for indemnification hereunder, (ii) the Indemnifying Party fails, within 30 days of receipt of any indemnification notice to notify, in writing, such Indemnified Party of its election, to defend, settle or compromise, at its sole cost and expense, any such Third Party Claim (or discontinues its defense at any time after it commences such defense) or (iii) in the reasonable judgment of the Indemnified Party, a conflict of interests between it and the Indemnifying Party exists in respect of such Third Party Claim or the action or claim is a Third Party Penalty Claim, then the Indemnified Party may, at its option, defend, settle or otherwise compromise or pay such action or claim or Third Party Claim in each case, at the sole cost and expense of the Indemnifying Party. In any event, unless and until the Indemnifying Party elects in writing to assume and does so assume the defense of any such claim, proceeding or action, the Indemnifying Party shall be liable for the Indemnified Party’s reasonable costs and expenses arising out of the defense, settlement or compromise of any such action, claim or proceeding. The Indemnified Party shall cooperate to the extent commercially reasonable with the Indemnifying Party in connection with any negotiation or defense of any such action or claim by the Indemnifying Party. The Indemnifying Party shall keep the Indemnified Party fully apprised at all times as to the status of the defense or any settlement negotiations with respect thereto. If the Indemnifying Party elects to defend any such action or claim, then the Indemnified Party shall be entitled to participate in such defense with counsel of its choice at its sole cost and expense unless otherwise specified herein; provided that any such participation of the Indemnified Party shall be at the Indemnifying Party’s sole cost and expense to the extent such participation relates to a Third Party Penalty Claim. If the Indemnifying Party does not assume such defense, the Indemnified Party shall keep the Indemnifying Party apprised at all times as to the status of the defense; provided, however, that the failure to keep the Indemnifying Party so informed shall not affect the obligations of the Indemnifying Party hereunder. The Indemnifying Party shall not be liable for any settlement of any action, claim or proceeding effected without its written consent; provided, however, that the Indemnifying Party shall not unreasonably withhold, delay or condition any

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such consent. Notwithstanding anything in this Section 9.15 to the contrary, the Indemnifying Party shall not, without the Indemnified Party’s prior written consent, (i) settle or compromise any claim or consent to entry of judgment in respect thereof which involves any condition other than payment of money by the Indemnified Party, (ii) settle or compromise any claim or consent to entry of judgment in respect thereof without first demonstrating to Indemnified Party the ability to pay such claim or judgment, or (iii) settle or compromise any claim or consent to entry of judgment in respect thereof that does not include, as an unconditional term thereof, the giving by the claimant or the plaintiff to the Indemnified Party, a full and complete release from all liability in respect of such claim.

Section 9.16 No Duplication. Any liability for indemnification under this Article IX shall be determined without duplication of recovery. Without limiting the generality of the prior sentence, if a statement of facts, condition or event constitutes a breach of more than one representation, warranty, covenant or agreement which is subject to the indemnification obligation in Section 9.12, only one recovery of Indemnified Costs per Indemnified Party shall be allowed.

Section 9.17 Sole Remedy. Except in the case of fraud, willful misconduct or failure to pay and except for claims brought under Article 6 of the ECCA, the enforcement of the claims of the Parties under Section 6.6, Section 6.7, Section 6.8, Section 6.9 or Article IX of this Agreement are the sole and exclusive remedies that a Party shall have under this Agreement and the other Transaction Documents for the recovery of Indemnified Costs; provided, however, that notwithstanding anything to the contrary in this Agreement, each Party hereby reserves all equitable remedies.

Section 9.18 Survival. All representations, warranties, covenants and obligations made or undertaken by a Party in this Agreement or in any other Transaction Document are material, have been relied upon by the other Parties and, except as otherwise provided in Section 9.18 or elsewhere in this Agreement (or, with respect to any representations, warranties, covenants and obligations made or undertaken in any other Transaction Document, in such Transaction Document), shall continue in full force and effect, together with the associated rights of indemnification, indefinitely.

Section 9.19 Final Date for Assertion of Indemnity Claims. All claims by an Indemnified Party for indemnification pursuant to this Article IX resulting from breaches of representations or warranties in Article III of this Agreement shall be forever barred unless the other Party is notified within eighteen (18) months after the date such representation or warranty is made; provided that if written notice of a claim for indemnification has been given by an Indemnified Party on or prior to the last day of the respective foregoing period, then the obligation of the other Party to indemnify such Indemnified Party pursuant to this Article IX shall survive with respect to such claim until such claim is finally resolved.

Section 9.20 Reasonable Steps to Mitigate. Each Indemnified Party will take, at the Indemnifying Party’s own reasonable cost and expense, all reasonable commercial steps identified by Indemnifying Party to the Indemnified Parties to mitigate all Indemnified Costs

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(other than any such Indemnified Costs that are Taxes), which steps may include availing itself of any defenses, limitations, rights of contribution, claims against third Persons and other rights at law or equity. The Indemnified Parties will provide such evidence and documentation of the nature and extent of the Indemnified Costs as may be reasonably requested by the Indemnifying Party.

Section 9.21 Net of Insurance Benefits. All Indemnified Costs shall be net of insurance recoveries from insurance policies of the Project Company (including under the existing title policies) to the extent that any proceeds of such policies, less any costs, expenses or premiums incurred by the Project Company in connection therewith, are distributed by the Project Company to the Company and are in turn distributed by the Company to the Indemnified Party; provided, however, such amount shall account for any costs or expenses incurred by the Indemnified Party in connection with obtaining insurance proceeds with respect to any breach or nonperformance hereunder.

Section 9.22 No Consequential Damages. Indemnified Costs shall not include, and an Indemnifying Party shall have no obligation to indemnify any Indemnified Party for or in respect of, any punitive, consequential or exemplary damages of any nature including but not limited to damages for lost profits or revenues or the loss or use of such profits or revenue, loss by reason of plant shutdown or inability to operate at rated capacity, increased operating expenses of plant or equipment, increased costs of purchasing or providing equipment, materials, labor, services, costs of replacement, power or capital, debt service fees or penalties, inventory or use charges, damages to reputation, damages for lost opportunities, or claims of the Project Company’s customers, members or affiliates, regardless of whether said claim is based upon contract, warranty, tort (including negligence and strict liability) or other theory of law unless payable by such Indemnified Party as part of a Third Party Claim; provided, however, that the lost profits or revenues (and the loss or use thereof) language set forth in this Section 9.22 shall not be interpreted to exclude from Indemnified Costs any damages, losses, claims, liabilities, demands charges, suits, Taxes, penalties, costs or expenses that would otherwise be included within the definition of Indemnified Costs because they result from a reduction in the profits of the Project Company, the Company, or both.

Section 9.23 Payment of Indemnification Claims. All claims for indemnification shall be paid by Indemnifying Party in immediately available funds in U.S. dollars. Any undisputed portion of an indemnification claim shall be paid promptly by the Indemnifying Party to the Indemnified Parties involved. An Indemnifying Party may dispute any portion of an indemnification claim, provided, however, that such disputed indemnification claim shall be paid promptly by the Indemnifying Party to the Indemnified Party together with interest at a market rate upon the final determination of the payable amount of the claim (if any) by a court of competent jurisdiction.

Section 9.24 Repayment: Subrogation. If the amount of any Indemnified Costs, at any time after the making of an indemnity payment in respect thereof, is reduced by recovery, settlement or otherwise under any insurance coverage (excluding any proceeds from self

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insurance or flow through insurance policies) or under any claim, recovery, settlement or payment by or against any other entity, the amount of such reduction, less any costs, expenses or premiums incurred in connection therewith, must promptly be repaid by the Indemnified Party to the Indemnifying Party net of any Taxes imposed upon the Indemnified Party in respect of such amounts, but taking into account any Tax benefit the Indemnified Party receives as a result of such repayment. Upon making any indemnity payment (other than any indemnity payment relating to Taxes), the Indemnifying Party will, to the extent of such indemnity payment, be subrogated to all rights of the Indemnified Party against any third party, except third parties that provide insurance coverage to the Indemnified Party or its Affiliates, in respect of the Indemnified Costs to which the indemnity payment relates. Without limiting the generality or effect of any other provision hereof, each such Indemnified Party and the Indemnifying Party shall duly execute upon request all instruments reasonably necessary to evidence and perfect the above described subrogation rights, and otherwise cooperate in the prosecution of such claims at the direction of the Indemnifying Party. Nothing in this Section 9.24 will be construed to require any Party to obtain or maintain any insurance coverage.

ARTICLE X

DISSOLUTION AND WINDING-UP

Section 10.1 Events of Dissolution. The Company shall be dissolved and its affairs shall be wound up upon the first to occur of any of the following:

(a) the written consent of the Members representing a Class Majority Vote to dissolve and terminate the Company after the final Recapture Period;

(b) the entry of a decree of judicial dissolution under Section 18-802 of the Act;

(c) the occurrence of the LLC Agreement Termination Date;

(d) the disposition of all or substantially all of the Company’s business and assets after the final Recapture Period;

(e) the issuance of a final, nonappealable court order which makes it unlawful for the business of the Company to be carried on; or

(f) at any time there are no members of the Company unless the business of the Company is continued in accordance with the Act.

Section 10.2 Distribution of Assets.

(a) The Members hereby appoint the Managing Member to act as the liquidator upon the occurrence of one of the events in Section 10.1. Upon the occurrence of such an event, the liquidator will proceed diligently to wind up the affairs of the Company and make final distributions as provided herein and in the Act. The liquidator may sell, and will use

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commercially reasonable efforts to obtain the best possible price for, any or all Company property, including to Members. In no event, without the approval of Members by a Class Majority Vote, will a sale to a Member be for an amount that is less than fair market value (determined by the Appraisal Method if the Members (by a Class Majority Vote) are unable to agree on the fair market value).

(b) The liquidator will first pay, satisfy or discharge from Company funds all of the debts, liabilities and obligations of the Company (including all expenses incurred in liquidation) or otherwise make adequate provision for payment and discharge thereof (including the establishment of a cash escrow fund for contingent, conditional or unmatured liabilities in such amount and for such term as the liquidator may reasonably determine) in the order of priority as provided by law.

(c) All assets of the Company will be treated as if sold, and the gain treated as realized on those assets will be allocated first to Members with deficits in their Capital Accounts (in the ratio of the deficits if more than one Member’s Capital Account is in deficit) in order to eliminate the deficits.

(d) Remaining gain or loss will be allocated next to the Class B Member in an effort to set the Capital Account of the Class B Member at a level that would allow it to reach the Target IRR out of the liquidating distributions if the Target IRR has not already been achieved, and thereafter in the ratio in Section 5.1 (a)(ii), provided that no allocation will increase a deficit in the Capital Account of a Class B Member.

(e) After the allocations in clauses (c) and (d) have been made, then cash and property will be distributed pro rata to the Members in the amount of the positive balances in their Capital Accounts by the end of the taxable year during which the liquidation occurs (or, if later, within 90 days after the date of such liquidation).

(f) The distribution of cash and property to a Member under this Section 10.2 constitutes a complete return to the Member of its Capital Contributions and a complete distribution to the Member on its Membership Interests in the Company of all the Company’s property and constitutes a compromise to which all Members have consented within the meaning of Section 18-502(b) of the Act. If the assets of the Company remaining after the payment or discharge of the debts and liabilities of the Company are insufficient to return Capital Contributions of each Member, such Member shall have no recourse against the Company or any other Member.

Section 10.3 In-Kind Distributions. There shall be no distribution of assets of the Company in kind without a prior Class Majority Vote.

Section 10.4 Certificate of Cancellation.

(a) When all debts, liabilities and obligations have been paid and discharged or adequate provisions have been made therefor and all of the remaining property and assets

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have been distributed to the Members, a certificate of cancellation shall be executed and filed by the liquidator with the Secretary of State of the State of Delaware, which certificate shall set forth the information required by Section 18-203 of the Act.

(b) Upon the filing of the certificate of cancellation, the existence of the Company shall cease.

(c) All costs and expenses in fulfilling the obligations under this Section 10.4 shall be borne by the Company.

ARTICLE XI

MISCELLANEOUS

Section 11.1 Notices. Unless otherwise provided herein, any offer, acceptance, election, approval, consent, certification, request, waiver, notice or other communication required or permitted to be given hereunder (collectively referred to as a “Notice”), shall be in writing and delivered (a) in person, (b) by registered or certified mail with postage prepaid and return receipt requested, (c) by recognized overnight courier service with charges prepaid or (d) by facsimile transmission, directed to the intended recipient at the address of such Member on Schedule 4.2(d) or at such other address as any Member hereafter may designate to the others in accordance with a Notice under this Section 11.1. A Notice or other communication will be deemed delivered on the earliest to occur of (i) its actual receipt when delivered in person, (ii) the fifth Business Day following its deposit in registered or certified mail, with postage prepaid, and return receipt requested, (iii) the second Business Day following its deposit with a recognized overnight courier service or (iv) the date of receipt of a facsimile or, if such date of receipt is not a Business Day, the next Business Day following such date of receipt, provided the sender can and does provide evidence of successful transmission. Any Notice or other communication received on a day that is not a Business Day or later than 5:00 p.m. on a Business Day shall be deemed to be received on the next Business Day.

Section 11.2 Amendment. Except for an amendment of Schedule 4.2(d), an amendment of Annex II to reflect the issuance of additional Class B Membership Interests or a Transfer of Class B Membership Interests, or an amendment in connection with the admission of a new Member, in each case in accordance with the terms of this Agreement, this Agreement may be changed, modified or amended only by an instrument in writing duly executed by all Members.

Section 11.3 Partition. Each of the Members hereby irrevocably waives, to the extent it may lawfully do so, any right that such Member may have to maintain any action for partition with respect to the Company property.

Section 11.4 Waivers and Modifications. Any waiver or consent, express, implied or deemed, to or of any breach or default by any Person in the performance by that Person of its obligations with respect to the Company or any action inconsistent with this Agreement is not a consent or waiver to or of any other breach or default in the performance by

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that Person of the same or any other obligations of that Person with respect to the Company or any other such action. Failure on the part of a Person to insist in any one or more instances upon strict performance of any provisions of this Agreement, to take advantage of any of its rights hereunder, or to declare any Person in default with respect to the Company, irrespective of how long that failure continues, does not constitute a waiver by that Person of its rights with respect to that Person or its rights with respect to that default until the applicable statute of limitations period has lapsed. All waivers and consents hereunder shall be in writing duly executed by all Members affected by such waiver or consent and shall be delivered to the other Members in the manner described in Section 11.1.

Section 11.5 Severability. Except as otherwise provided in the succeeding sentence, every term and provision of this Agreement is intended to be severable, and if any term or provision of this Agreement is illegal or invalid for any reason whatsoever, such illegality or invalidity shall not affect the legality or validity of the remainder of this Agreement. The preceding sentence shall be of no force or effect if the consequence of enforcing the remainder of this Agreement without such illegal or invalid terms or provision would be to cause any Party to lose the benefit of its economic bargain.

Section 11.6 Successors; No Third-Party Beneficiaries. This Agreement is binding on and inures to the benefit of the Members and their respective heirs, legal representatives, successors and permitted assigns. Nothing in this Agreement shall provide any benefit to any third party or entitle any third party to any claim, cause of action, remedy or right of any kind, it being the intent of the Members that this Agreement shall not be construed as a third-party beneficiary contract. To the full extent permitted by law, no creditor or other third party having dealings with the Company shall have the right to pursue any other right or remedy hereunder or at law or in equity, it being understood and agreed that the provisions of this Agreement shall be solely for the benefit of, and may be enforced solely by, the parties hereto and their respective successors and permitted assigns. None of the rights of the Members herein set forth to make Capital Contributions or loans to the Company shall be deemed an asset of the Company for any purpose by any creditor or other third party, nor may such rights or obligations be sold, transferred or assigned by the Company or pledged or encumbered by the Company to secure any debt or other obligation of the Company or of any of the Members.

Section 11.7 Entire Agreement. This Agreement, including the Schedules attached hereto or incorporated herein by reference, constitutes the entire agreement of the Members with respect to the matters covered herein. This Agreement supersedes all prior agreements and oral understandings among the parties hereto with respect to such matters, including the 2012 Operating Agreement.

Section 11.8 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, excluding any conflict of laws rule or principle that might refer the governance or construction of this Agreement to the law of another jurisdiction.

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Section 11.9 Further Assurances. In connection with this Agreement and the transactions contemplated hereby, each Member shall execute and deliver any additional documents and instruments and perform any additional acts that may be reasonably required or useful to carry out the intent and purpose of this Agreement and as are not inconsistent with the terms hereof.

Section 11.10 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be an original but all of which together will constitute one instrument, binding upon all parties hereto, notwithstanding that all of such parties may not have executed the same counterpart.

Section 11.11 Dispute Resolution.

(a) Except as provided in Section 11.11 (b), in the event a dispute, controversy or claim arises hereunder, the aggrieved party will promptly provide written notification of the dispute to the other party within 10 days after such dispute arises. A meeting will be held promptly between the parties, attended by representatives of the parties with decision-making authority regarding the dispute, to attempt in good faith to negotiate a resolution of the dispute. If the parties are not successful in resolving a dispute within 21 days, the parties will thereafter be entitled to pursue all such remedies as may be available to them; provided that the parties hereby irrevocably submit to the exclusive jurisdiction of any state or federal court in New York county, New York or any state of federal court in the State of Delaware with respect to any action or proceeding arising out of or relating to this Agreement. For the avoidance of doubt, no Member waives its right to maintain a legal action or proceeding in the courts of the State of Delaware with respect to matters relating to the organization or internal affairs of the Company.

(b) If any Class B Member disputes the determination that the Flip Date has occurred (including based on any item or procedure or calculation that affects such determination contained in any notice or report delivered by the Administrator to such Class B Member), such Class B Member shall notify the Administrator and other Members not more than 20 days after such Class B Member has received written notice from the Administrator or the Managing Member that the Flip Date was determined to have occurred. In such event, the Members and the Administrator shall consider the issues raised or in dispute and discuss such issues with each other and attempt to reach a mutually satisfactory agreement. If notice of dispute is not given by any Class B Member within such period, the determination that the Flip Date has occurred, and the items, procedures and calculations described above relating thereto, will be final and binding on the Members. If the dispute as to the Administrator’s calculations is not promptly resolved within ten Business Days of such notification of the dispute, the Class B Member and the Administrator shall each promptly present their interpretations to an Independent Accounting Firm, and shall instruct the Independent Accounting Firm to determine the correct amount of the calculations in dispute (if applicable, in accordance with the methodology in Sections 6.5 or 7.1) and to resolve the dispute promptly, but in no event more than twenty Business Days after having the dispute submitted to it. The Independent Accounting Firm will make a determination as to each of the items in dispute, which must be (i) in writing, (ii) furnished to each Member and

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the Administrator and (iii) made in accordance with this Agreement, and which determination, absent manifest error, will be conclusive and binding on all Members, taking into account Sections 6.5(d) and (e). Each Member shall use reasonable efforts to cause the Independent Accounting Firm to render its decision as soon as reasonably practicable, including by promptly complying with all reasonable requests by the Independent Accounting Firm for information, books, records and similar items. In the event the Independent Accounting Firm determines that any of the calculations in dispute was incorrect in any material respect, the fees and expenses of the Independent Accounting Firm shall be borne by Class A Members (pro rata in proportion to their Percentage Interests). In all other cases the fees and expenses of the Independent Accounting Firm shall be borne by the Class B Member disputing any of the calculations (if more than one, pro rata in proportion to their Percentage Interests).

Section 11.12 Confidentiality.

(a) The Members (other than Clean Technologies) shall, and shall cause their Affiliates and their respective stockholders, members, subsidiaries and Representatives to, hold confidential all information they may have or obtain concerning Clean Technologies, Bloom, the Company and their respective assets, business, operations or prospects or this Agreement (the “Confidential Information”); provided, however, such Confidential Information shall not include information that (i) becomes generally available to the public other than as a result of a disclosure by a Member or any of its Representatives, (ii) becomes available to a Member or any of its Representatives on a nonconfidential basis prior to its disclosure by the Company or its Representatives, (iii) is required or requested to be disclosed by a Member or any of its Affiliates or their respective stockholders, members, subsidiaries or Representatives as a result of any applicable Legal Requirement or rule or regulation of any stock exchange, the Financial Industry Regulatory Authority, Inc. or other regulatory authority or self-regulatory authority having jurisdiction over such Member, (iv) is required or requested by the IRS in connection with the Systems or a Grant, including in connection with a request for any private letter ruling, any determination letter or any audit, or (v) is independently developed by a Member or any of its Representatives; provided that with respect to clauses (iii) and (iv), if such Confidential Information remains or is reasonably believed to remain generally unavailable to the public, such information will remain Confidential Information in all other respects and for all other purposes. If such party becomes compelled by legal or administrative process to disclose any Confidential Information, such party will provide the other Members with prompt Notice so that the other Members may seek a protective order or other appropriate remedy or waive compliance with the non-disclosure provisions of this Section 11.12(a) with respect to the information required to be disclosed. If such protective order or other remedy is not obtained, or such other Members waive compliance with the non-disclosure provisions of this Section 11.12(a) with respect to the information required to be disclosed, the first party will furnish only that portion of such information that it is advised, by opinion of counsel, is legally required to be furnished and will exercise reasonable efforts, at the other Members’ expense, to obtain reliable assurance that confidential treatment will be accorded such information, including, in the case of disclosures to the IRS described in clause (iv) above, to obtain reliable assurance that, to the maximum extent permitted by applicable Legal Requirements, such information will not be made available for public inspection pursuant to Section 6110 of the Code.

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(b) Except to the extent necessary for the exercise of its rights and remedies and the performance of its obligations under this Agreement (including without limitation, the ownership, operation and administration of the Company and the Project Company), Clean Technologies and its Affiliates will hold confidential and not disclose directly or indirectly, any of the economic terms particular to this Agreement and the ECCA, including the amount of any Class B Member’s Capital Contribution, economic returns thereon or the identity of any Class B Member other than with respect to the disclosures of the type described in clause (a)(i) through (v) above or in clause (c) below that are permitted for the other Members and their respective Affiliates. The foregoing shall not restrict Clean Technologies (or any Affiliate) from using project data related to the Systems in connection with the development of other fuel cells by Clean Technologies (or any Affiliate).

(c) Nothing in Section 11.12(a) and (b) shall be construed as prohibiting a party hereunder from using such Confidential Information in connection with (i) any claim against another Member, the Managing Member or the Administrator hereunder, (ii) any exercise by a party hereunder of any of its rights hereunder (including without limitation, the ownership, operation and administration of the Company and the Project Company) and (iii) a disposition by a Member of all or a portion of its Membership Interest or a disposition of an equity interest in such Member or its Affiliates, provided that such potential purchaser shall have entered into a confidentiality agreement with respect to Confidential Information on customary terms used in confidentiality agreements in connection with corporate acquisitions before any such information may be disclosed. In addition, each Member hereby acknowledges that the United States federal securities laws and applicable European securities laws, among other things, prohibit certain persons in possession of material, non-public information concerning companies or securities from buying or selling securities issued by those companies or disclosing that material, non-public information to others who buy or sell those securities while in possession of that information (or disclose that information to others who buy or sell). Notwithstanding anything herein to the contrary, the Parties and their respective Representatives may disclose to any and all persons, without limitation of any kind, the U.S. federal income tax treatment and tax structure of the transaction and all materials of any kind (including opinions and other tax analyses) that are provided to such party relating to such tax treatment and tax structure, except where confidentiality is reasonably necessary to comply with securities laws. For this purpose, “tax structure” is limited to facts relevant to the U.S. federal income tax treatment of the transaction and does not include information relating to the identity of the Parties, their affiliates, agents or advisors.

Section 11.13 Joint Efforts. To the full extent permitted by applicable Legal Requirements, neither this Agreement nor any ambiguity or uncertainty herein will be construed against any of the parties hereto, whether under any rule of construction or otherwise. On the contrary, this Agreement has been prepared by the joint efforts of the respective attorneys for, and has been reviewed by, each of the parties hereto.

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Section 11.14 Specific Performance. The Members agree that irreparable damage will result if this Agreement is not performed in accordance with its terms, and the Members agree that any damages available at law for a breach of this Agreement would not be an adequate remedy. Therefore, to the full extent permitted by law, the provisions hereof and the obligations of the Members hereunder shall be enforceable in a court of equity, or other tribunal with jurisdiction, by a decree of specific performance, and appropriate injunctive relief may be applied for and granted in connection therewith. Such remedies and all other remedies provided for in this Agreement shall, however, be cumulative and not exclusive and shall be in addition to any other remedies that a Member may have under this Agreement, at law or in equity.

Section 11.15 Survival. All indemnities and reimbursement obligations made pursuant to this Agreement shall survive dissolution and liquidation of the Company until expiration of the longest applicable statute of limitations (including extensions and waivers) with respect to the matter for which a Person would be entitled to be indemnified or reimbursed, as the case may be.

Section 11.16 Effective Date. This Agreement shall have no force or effect unless and until the funding of the transactions contemplated by the ECCA to take place at the Initial Funding occurs, at which time this Agreement shall automatically and without any further action become effective simultaneously with the Initial Funding (the “Effective Date”).

Section 11.17 Recourse Only to Member. The sole recourse of the Company for performance of the obligations of any Member hereunder shall be against such Member and its assets and not against any assets or property of any present or future stockholder, partner, member, officer, employee, servant, executive, director, agent, authorized representative or Affiliate of such Member.

[Remainder of this page left intentionally blank.]

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IN WITNESS WHEREOF, each Member has caused this Second Amended and Restated Limited Liability Company Agreement to be signed by a duly authorized officer as of the date first above written.

CLEAN TECHNOLOGIES II, LLC

By:	/s/ William E. Brockenborough
	Name:	William E. Brockenborough
	Title:	President

[***]
By:
	Name:
	Title:

Second A&R LLCA of DSGH

[***] Confidential Treatment Requested

IN WITNESS WHEREOF, each Member has caused this Second Amended and Restated Limited Liability Company Agreement to be signed by a duly authorized officer as of the date first above written.

CLEAN TECHNOLOGIES II, LLC
By:
	Name:
	Title:
[***]
By:	/s/ Peter Cross
	Name:	Peter Cross
	Title:	Vice President

Second A&R LLCA of DSGH

[***] Confidential Treatment Requested

ANNEX I TO ECCA

AND COMPANY LLC AGREEMENT

DEFINITIONS

“1940 Investment Company Act” means the Investment Company Act of 1940, as amended.

“2012 Operating Agreement” is defined in the preliminary statements of the Company LLC Agreement.

“25% Progress Payment” means, for any System, the initial payment by Project Company of 25% of the purchase price for such System as contemplated by the MESPA.

“75% Progress Payment” means, for any System, the final payment by Project Company of 75% of the purchase price for such System as contemplated by the MESPA.

“Acceptable Credit Party” means a commercial bank or other financial institution which maintains an office or corresponding office in the United States, whose long-term unsecured debt is rated “A-” or higher by S&P and “A3” or higher by Moody’s and which has a tangible net worth of at least $1,000,000,000.

“Accountant’s Certificate” means the independent accountant’s certification attesting to accuracy of all costs as required pursuant to the Guidance.

“Account Withdrawal Instruction” is defined in the Depositary Agreement.

“Accounting Firm” means any of Deloitte Touche Tohmatsu, Ernst & Young, KPMG International, PricewaterhouseCoopers or any nationally-recognized Affiliate thereof, chosen by the Tax Matters Partner or otherwise reasonably approved by Class Majority Vote.

“Act” means the Delaware Limited Liability Company Act, Delaware Code Ann. 6, Sections 18-101, et seq. and any successor statute, as the same may be amended from time to time.

“Adjusted Capital Account” means the Capital Account of a Member (a) increased by the amount of potential deficit that the Member is deemed obligated to restore, calculated as described in the last sentence of Treasury Regulation Section 1.704-2(g)(1) and the last sentence of Treasury Regulation Section 1.704-2(i)(5), and (b) decreased by expected items described in Treasury Regulation Section 1.704-1(b)(2)(ii)(d)(4), (5) and (6).

“Administrative Services Agreement” means the Administrative Services Agreement, dated as of the Initial Funding Date, among the Company, the Project Company and Bloom in the form attached as Exhibit C to the ECCA.

“Administrator” means Bloom or any replacement administrator under a Administrative Services Agreement. The Administrator is a “manager” of the Company within the meaning of the Act.

“Affiliate” means, with respect to any Person, any other Person controlling, controlled by or under common control with such first Person. For purposes of this definition, the term “control” (and correlative terms) means (1) the ownership of 50% or more of the equity interest in a Person, or (2) the power, whether by contract, equity ownership or otherwise, to direct or cause the direction of the policies or management of a Person. The Company shall be deemed to be an Affiliate of Clean Technologies prior to the Initial Funding (for purposes of representations and warranties), but neither the Company nor the Project Company shall be deemed to be an Affiliate of any Member or of Bloom or the Investor Guarantor from and after the Initial Funding.

“Aggregate Final Completion Distribution” is defined in Section 6.11 of the Company LLC Agreement.

“Agreement” means the Company LLC Agreement if used in the Company LLC Agreement or the ECCA if used in the ECCA.

“Alternative Tax Program” means, if the Grant is unavailable, any successor cash grant, cash-based subsidy, tax refund or refundable credit program or, if none of the foregoing is available, the ITC.

“Annual Budget” is defined in Section 7.1(b) of the Company LLC Agreement.

“Applicable Laws” means all laws (including common law), constitutions, statutes, rules, regulations, ordinances, judgments, settlements, orders, decrees, injunctions, and writs of any Governmental Authority, in each case, having jurisdiction over Bloom, Clean Technologies, [***], the Administrator, the Company, the Project Company or the Systems, as applicable.

“Appraisal Method” means one appraiser shall be appointed by the holders of a majority of the Class A Membership Interests and one appraiser shall be appointed by the holders of a majority of the Class B Membership Interests, in each case, within fifteen (15) days of invocation of this procedure, which appraisers shall attempt to agree upon the fair market value of the Class B Membership Interests. If either holders of the Class A Membership Interests or holders of the Class B Membership Interests do not appoint their respective appraiser within five (5) days after the end of such fifteen (15) day period, the determination of the appraiser appointed by the other Person (if so appointed within such period) shall be conclusive and binding on the Members. If the appraisers appointed by the holders of Class A Membership Interests and the holders of Class B Membership Interests are unable to agree upon the fair market value of the Class B Membership Interests within thirty (30) days after the appointment of the second of such appraisers, the two appraisers shall appoint a third appraiser. In such case, the average of the determinations of the three appraisers shall be conclusive and binding on the

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Members, unless the determination of any of the appraisers differs from the middle determination by more than twice the amount by which the remaining determination differs from the middle determination, in which case the most disparate appraisal shall be excluded, and the average of the remaining two determinations shall be conclusive and binding on the Members.

“Bankruptcy” of a Person means the occurrence of any of the following events: (i) the filing by such Person of a voluntary case or the seeking of relief under any chapter of Title 11 of the United States Code, as now constituted or hereafter amended (the “Bankruptcy Code”), (ii) the making by such Person of a general assignment for the benefit of its creditors, (iii) the admission in writing by such Person of its inability to pay its debts as they mature, (iv) the filing by such Person of an application for, or consent to, the appointment of any receiver or a permanent or interim trustee of such Person or of all or any portion of its property, including the appointment or authorization of a trustee, receiver or agent under applicable law or under a contract to take charge of its property for the purposes of enforcing a lien against such property or for the purpose of general administration of such property for the benefit of its creditors, (v) the filing by such Person of a petition seeking a reorganization of its financial affairs or to take advantage of any bankruptcy, reorganization, insolvency, readjustment of debt, dissolution or liquidation law or statute, or an answer admitting the material allegations of a petition filed against it in any proceeding under any such law or statute, (vi) an involuntary case is commenced against such Person by the filing of a petition under any chapter of Title 11 of the Code and within 60 days after the filing thereof either the petition is not dismissed or the order for relief is not stayed or dismissed, (vii) an order, judgment or decree is entered appointing a receiver or a permanent or interim trustee of such Person or of all or any portion of its property, including the entry of an order, judgment or decree appointing or authorizing a trustee, receiver or agent to take charge of the property of such Person for the purpose of enforcing a lien against such property or for the purpose of general administration of such property for the benefit of the creditors of such Person, and such order, judgment or decree shall continue unstayed and in effect for a period of 60 days, or (viii) an order, judgment or decree is entered, without the approval or consent of such Person, approving or authorizing the reorganization, insolvency, readjustment of debt, dissolution or liquidation of such Person under any such law or statute, and such order, judgment or decree shall continue unstayed and in effect for a period of 60 days. The foregoing definition of “Bankruptcy” is intended to replace and shall supersede the definition of “Bankruptcy” set forth in Sections 18-101(1) and 18-304 of the Act.

“Base Case Model” means the financial model attached as Annex II to the Member Consent and Second Amendment to Equity Capital Contribution Agreement with respect to Diamond State Generation Holdings, LLC, dated as of March 20, 2013, by and among Clean Technologies, Investor, the Company and the Project Company.

“Bloom” means Bloom Energy Corporation, a Delaware corporation.

“Bloom Guaranty” means the Guaranty made by Bloom for the benefit of Investor, dated as of March 16, 2012.

“Brookside Site” means the Site described in the DDOT Site Lease.

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“Business Day” means any day other than (i) a Saturday or Sunday or (ii) a day on which commercial banks in New York City are authorized or required to be closed.

“Capital Account” means an account for each Member calculated as described in Section 4.2(b) of the Company LLC Agreement and used to distribute assets at liquidation as described in Section 10.2 of the Company LLC Agreement.

“Capital Contribution” means, with respect to any Member, the amount of money and the initial Gross Asset Value of any property contributed to the Company with respect to the Membership Interests in the Company held or purchased by such Member.

“Capital Contributions Account” is defined in Section 4.3(c) of the Company LLC Agreement.

“Cause” means fraud, gross negligence or willful misconduct of the Managing Member, solely in that capacity.

“Certificate of Formation” has the meaning in the preliminary statements of the Company LLC Agreement.

“Change of Control” means with respect to an entity, an event in which a Person or Persons who prior to a transaction or series of transactions, possessed, whether directly or indirectly, legally or beneficially:

(a) 50% or more of the equity, capital or profits interests of such entity; or

(b) Control of such entity;

and as a result of a consummation of any transaction or series of transactions (including any merger or consolidation), such Person or Persons fails to maintain, whether directly or indirectly, legally or beneficially, either of the elements of control listed in (a) or (b) above.

“Claims” is defined in Section 3.6(a) of the Company LLC Agreement.

“Class A Member” means a Member holding one or more Class A Membership Interests.

“Class A Membership Interests” means membership interests in the Company that are held initially by Clean Technologies and have the rights described in the Company LLC Agreement.

“Class A Recapture Event” means an event or occurrence of any fact or circumstance that causes a Recapture Event that is not a Class B Recapture Event.

“Class B Member” means a Member holding one or more Class B Membership Interests.

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“Class B Member CC Maximum Amount” means, for the Class B Member, an amount not to exceed the lesser of (i) [***] and (ii) such amount that makes such Class B Member’s actual or required net investment (Capital Contributions less actual pre-tax cash distributions from the Company to the Class B Member made and received to date) equal [***].

“Class B Membership Interests” means the membership interests in the Company that are initially held by [***] and having the rights described in the Company LLC Agreement.

“Class B Recapture Event” means (a) an event or occurrence of any fact or circumstance that causes a denial or recapture of all or a portion of a Grant that is directly attributable to (i) a breach of the representation made by a Class B Member under Section 3.11(c) of the Company LLC Agreement, (ii) a breach of the covenant made by a Class B Member under Section 3.12(f) of the Company LLC Agreement or (iii) any Transfer by a Class B Member or an Affiliate of a Class B Member prohibited by Sections 9.1, 9.3(e) or 9.4(c) of the Company LLC Agreement that causes the Company or Project Company to become a Disqualified Person, or (b) any act or omission by a Class B Member (excluding voting for a Major Decision), including any Transfer by a Class B Member or its Class B Membership Interests or a change in ownership of a Class B Member, that results in a recapture of the ITC or refundable credit under an Alternative Tax Program if an ITC or such refundable credit is elected pursuant to Section 7.5(b)(i) of the Company LLC Agreement and claimed by such Class B Member with respect to the Systems.

“Class Majority Vote” is defined in Section 3.2(f) of the Company LLC Agreement.

“Clean Technologies” is defined in the preamble to the ECCA.

“Clean Technologies Indemnified Costs” means, with respect to any Class A Member, the following:

(a) with respect to any indemnification, defense or hold harmless obligations under the Company LLC Agreement or the ECCA of Investor or Investor Guarantor, any and all damages, losses, claims, liabilities, demands, charges, suits, Taxes, penalties, costs, and reasonable expenses (including court costs and reasonable attorneys’ fees and expenses of one law firm for all Clean Technologies Indemnified Parties) incurred by such Clean Technologies Indemnified Parties, including with respect to Third Party Claims, resulting from or relating to any breach or default or misrepresentation by Investor (as itself or as a Class B Member, as applicable) or Investor Guarantor, of any representation, warranty, covenant, indemnity or agreement under the ECCA or any other Transaction Document, including any claim for fraud or willful misconduct on the part of Investor or Investor Guarantor relating to the ECCA or any other Transaction Document; and

(b) with respect to any indemnification, defense or hold harmless obligations under the Company LLC Agreement or the ECCA (if applicable) of any Class B Member not covered under the preceding clause (a), any and all damages, losses,

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claims, liabilities, demands, charges, suits, Taxes, penalties, costs, and reasonable expenses (including court costs and reasonable attorneys’ fees and expenses of one law firm for all Clean Technologies Indemnified Parties) incurred by such Clean Technologies Indemnified Parties, including with respect to Third Party Claims, resulting from or relating to (i) any breach or default or misrepresentation by Class B Member or its Affiliate, as applicable, of any representation, warranty, covenant, indemnity or agreement under the ECCA or any other Transaction Document or (ii) any claim for fraud or willful misconduct on the part of Class B Member or its Affiliate relating to the ECCA or any other Transaction Document.

“Clean Technologies Indemnified Parties” means Clean Technologies and any person to whom Clean Technologies transfers any portion of its Class A Membership Interests in accordance with Article IX of the Company LLC Agreement, and each of their respective Affiliates (other than the Company or the Project Company) and each of their respective shareholders, partners members, officers, directors, employees, agents, and other representatives, and their respective successors and assigns.

“Code” means the Internal Revenue Code of 1986, as amended from time to time.

“Collateral Agent” means Deutsche Bank Trust Company Americas as collateral agent under the Credit Documents.

“Company” is defined in the preliminary statements to the ECCA.

“Company Distributable Cash” means, as of any date, all cash, cash equivalents and liquid investments (excluding Capital Contributions, Permitted Investments and any cash received in respect of the Grant) held by the Company as of such date less all reasonable reserves that, in the reasonable judgment of the Managing Member, are necessary or appropriate for the operation of the Company consistently with the Prudent Operator Standard. Reasonable reserves shall consist of any combination of the following reserves as reasonably determined by the Managing Member, without duplication: (i) necessary for payment of expenses included in the annual budget of the Company, (ii) necessary to prevent or mitigate an emergency situation, (iii) established with the prior written consent of the Members (by Class Majority Vote), (iv) necessary to allow the Company to meet expenses that are clearly identified and expected with reasonable certainty to become due, but that are not included in the annual budget of the Company, (v) necessary to ensure sufficient spare parts or the payment of operational and maintenance costs for each of the Systems, and (vi) one or more additional reserves not referred to in the preceding clauses of this definition of “Company Distributable Cash” that do not, together with the reserves reserved pursuant to clause (vi) of the definition of Project Company Distributable Cash, in the aggregate exceed $1,600,000.

“Company LLC Agreement” means the Second Amended and Restated Limited Liability Company Agreement of the Company, by and between Clean Technologies and [***], dated as of March 20, 2013, as the same may be amended, supplemented or replaced from time to time.

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“Company Minimum Gain” means the amount of minimum gain there is in connection with nonrecourse liabilities of the Company, calculated in the manner described in Treasury Regulation Sections 1.704-2(b)(2) and 1.704-2(d).

“Confidential Information” is defined in Section 11.12(a) of the Company LLC Agreement.

“Construction Escrow Account” is defined in the Note Purchase Agreement.

“Consult” or “Consultation” means to confer with, and reasonably consider and take into account the reasonable suggestions, comments or opinions of, another Person.

“Control” or “Controlled by” means the possession, directly or indirectly, of either of the following:

(i) in the case of a corporation, more than 50% of the outstanding voting securities thereof; (ii) in the case of a limited liability company, partnership, limited partnership or joint venture, the right to more than 50% of the distributions (including liquidating distributions) therefrom; (iii) in the case of a trust or estate, including a business trust, more than 50% of the beneficial interest therein; and (iv) in the case of any other entity, more than 50% of the economic or beneficial interest therein; or in the case of any entity, the power or authority, through ownership of voting securities, by contract or otherwise, to exercise a controlling influence over the management of the entity.

“Control Agreement” means the Control Agreement to be entered into on or before the Initial Funding Date among [***], Clean Technologies, the Company (or the Project Company) and the control agent party thereto, as the same may be amended from time to time.

“Credit Documents” means the Note Purchase Agreement and all other documents executed or delivered in connection with the Note Purchase Agreement, including, without limitation, the Interparty Agreement.

“[***] Guarantor” means [***].

“[***] Guaranty” means the Guaranty made by [***] for the benefit of Clean Technologies, dated as of March 16, 2012.

“CT Funding Amount” means, on the Initial Funding Date or on any Subsequent Funding Date, an amount that is equal to the required Progress Contribution less (i) the applicable Note Proceeds of the Note Holders and (ii) the applicable Subsequent Funding Payment of the Investor.

“DDOT” means the Delaware Department of Transportation.

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“DDOT Site Lease” means a Lease Agreement between DDOT and the Project Company to be entered into on or prior to the Initial Funding Date, as it may be amended to extend the term or otherwise.

“December Capital Contribution” means the Capital Contribution in the amount of [***] made by Clean Technologies to the Company on December 30, 2011 pursuant to the Capital Contribution Agreement dated December 30, 2011 among Bloom, Clean Technologies, the Company and the Project Company.

“Deposit Contribution” is defined in Section 2.2(b) of the ECCA.

“Depositary” means Deutsche Bank Trust Company Americas, as depositary under the Depositary Agreement.

“Depositary Agreement” means the Depositary Agreement, dated as of March 20, 2013, among the Project Company, the Depositary and the Collateral Agent.

“Depreciation” means for each Fiscal Year or part thereof, an amount equal to the depreciation, amortization, or other cost recovery deduction allowable for United States federal income tax purposes with respect to an asset for such Fiscal Year or part thereof, except that if the Gross Asset Value of an asset differs from its adjusted basis for United States federal income tax purposes at the beginning of such Fiscal Year, the depreciation, amortization, or other cost recovery deduction for such Fiscal Year or part thereof shall be an amount which bears the same ratio to such Gross Asset Value as the United States federal income tax depreciation, amortization, or other cost recovery deduction for such Fiscal Year or part thereof bears to such adjusted tax basis. If such asset has a zero adjusted tax basis, the depreciation, amortization, or other cost recovery deduction for each taxable year shall be determined under a method reasonably selected by the Managing Member and agreed to by Members representing a Class Majority Vote.

“Designated Transfers” is defined in Section 9.9 of the Company LLC Agreement.

“Disqualified Person” means (a) any federal, state or local government (or any political

subdivision, agency or instrumentality thereof); (b) any organization described in Section 501(c) of the Code and exempt from tax under Section 501(a) of the Code; (c) any entity referenced in Section 54(j)(4) of the Code; (d) any foreign person or entity as defined in Section 168(h)(2)(C) of the Code unless the exception under Section 168(h)(2)(B) of the Code applies with respect to income from the Project for that person; and (e) any partnership or other pass-through entity (including a single-member disregarded entity), other than a real estate investment trust as defined in Section 856(a) of the Code, any direct or indirect partner (or other holder of an equity or profits interest) of which is described in clauses (a) – (d); provided that a taxable C corporation, any of whose shareholders are ineligible to receive a Grant by virtue of being described in clauses (a) – (d) above will not be considered a Disqualified Person. Notwithstanding the above, a Person will not be treated as a Disqualified Person if it is demonstrated to the satisfaction of the Members that a Class A Recapture Event or Class B

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Recapture Event, as applicable, will not occur as a result of such Person owning a direct or indirect interest in the Company or Project Company; and provided, further that if and to the extent that Section 1603 of division B of the American Recovery and Reinvestment Act of 2009 is amended after the date of the Agreement, the definition of “Disqualified Person” under the Agreement shall be interpreted to conform to such amendment and any Treasury guidance with respect thereto.

“Distribution Date” means, in respect of every month, commencing the month following the Initial Funding Date, the date that falls on the last Business Day of such month.

“Dollars” or “$” means the lawful currency of the United States of America.

“DPL” means Delmarva Power & Light Company, a DPSC regulated utility company.

“DPL Agreements” means the service applications between the Project Company and DPL with respect to the REPS Act and the Tariffs, whereby DPL shall (a) serve as the agent for collection of amounts due from Project Company (if any) and for disbursement of amounts due to Project Company under the QFCP-RC Tariff and (b) sell to Project Company natural gas under the Gas Tariff.

“DPL Site Lease” means a Lease Agreement between DPL and the Project Company to be entered into on or prior to the Initial Funding Date.

“DPSC” means the Delaware Public Service Commission, the Governmental Authority charged with regulating DPL and issuing the Tariffs.

“ECCA” means the Equity Capital Contribution Agreement with respect to the Company dated as of March 16, 2012 among Clean Technologies, the Company, the Project Company and [***] and all schedules and exhibits thereto, as the same may be amended, supplemented or replaced from time to time.

“Effective Date” is defined in Section 11.16 of the Company LLC Agreement.

“Energy” is defined in the MESPA.

“Encumbrance” means any charge, claim, community property interest, condition, equitable interest, lien, option, pledge, mortgage, security interest, right of first refusal or restriction of any kind, including any restriction on use, voting, transfer, receipt of income or exercise of any other attribute of ownership.

“Environmental Reports” means (a) the Phase I Environmental Site Assessment: Proposed Fuel Cell Facility (Brookside Site) prepared by Terracon Consultants, Inc., dated November 15, 2011, and (b) the Phase I Environmental Site Assessment: Proposed Fuel Cell Facility (Red Lion Site) prepared by Terracon Consultants, Inc., dated November 15, 2011.

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“Environmental Laws” means all Applicable Laws pertaining to the environment, human health, safety and natural resources, including, but not limited to, the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42 U.S.C. § 9601 et seq.), and the Superfund Amendments and Reauthorization Act of 1986, the Resource Conservation and Recovery Act of 1976 (42 U.S.C. §§ 6901 et seq.), and the Hazardous and Solid Waste Amendments Act of 1984, the Clean Air Act (42 U.S.C. §§ 7401 et seq.), the Federal Water Pollution Control Act (also known as the Clean Water Act) (33 U.S.C. §§ 1251 et seq.), the Toxic Substances Control Act (15 U.S.C. §§ 2601 et seq.), the Safe Drinking Water Act (42 U.S.C. §§ 300f et seq.), the Endangered Species Act (16 U.S.C. §§ 1531 et seq.), the Hazardous Materials Transportation Act (49 U.S.C. §§ 1801 et seq.), and any similar or analogous state and local statutes or regulations promulgated thereunder and decisional law of any Governmental Authority, as each of the foregoing may amended or supplemented from time to time in the future, in each case to the extent applicable with respect to the property or operation to which application of the term “Environmental Laws” relates.

“Equity Commitment Amount” means, with respect to Clean Technologies, [***] plus the Gross Asset Value of the membership interests in the Project Company transferred to the Company by Clean Technologies as shown in Schedule 4.2(b) to the Company LLC Agreement, and with respect to [***], [***], subject to the limitation that at no time will the actual or required net investment (Capital Contributions less actual pre-tax cash distributions from the Company to [***], as applicable made and received to date) by [***] exceed [***].

“Equity Contribution” is defined in Section 4.3 of the Company LLC Agreement.

“Equity Contribution Date” is defined in Section 4.3 of the Company LLC Agreement.

“Equity Contribution Notice” is defined in Section 4.3 of the Company LLC Agreement.

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended.

“Execution Date” has the meaning given in the introductory paragraph of the ECCA.

“Exempt Wholesale Generator” means an “exempt wholesale generator” under PUHCA and the implementing regulations of FERC.

“Exhibits” means, in the case of the ECCA, the exhibits attached to the ECCA and in the case of the Company LLC Agreement, the exhibits attached to the Company LLC Agreement.

“Federal Power Act” or “FPA” means the Federal Power Act of 1935, as amended.

“FERC” means the Federal Energy Regulatory Commission and any successor thereto.

“Final Completion Date” is defined in the Note Purchase Agreement.

“Fiscal Year” is defined in Section 7.9 of the Company LLC Agreement.

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“Flip Date” means the last day of the calendar month in which Class B Member achieves an Internal Rate of Return equal to or greater than the Target IRR.

“Funding” means the Initial Funding or any Subsequent Funding, as the case may be.

“Funding Date” means the date of any Funding.

“Funding Notice” means a notice in the form of Exhibit I to the ECCA.

“Funding Payment” means, individually or collectively, the Initial Funding Payment and the Subsequent Funding Payments.

“GAAP” means generally accepted accounting principles as recognized by the American Institute of Certified Public Accountants, as in effect from time to time, consistently applied and maintained on a consistent basis for a Person throughout the period indicated and consistent with such Person’s prior financial practice.

“Gas Tariff” means DPL’s Service Classification “LVG-QFCP-RC” filed for gas service applicable to REPS Qualified Fuel Cell Provider Projects and approved by DPSC in Order no. 8062 dated October 18, 2011, as adopted and supplemented by DPSC’s Findings, Opinion and Order No. 8079, dated December 1, 2011.

“Governmental Approval” means all filings, notifications, orders, certificates, determinations, registrations, permits, licenses, approvals and authorizations with or of any Governmental Authority or other entity pursuant to Applicable Law.

“Governmental Authority” means any governmental department, commission, board, bureau, agency, court or other instrumentality of any country, state, province, county, parish or municipality, jurisdiction, or other political subdivision thereof.

“Grant” means a grant (or a portion thereof) under Section 1603 of the American Recovery and Reinvestment Tax Act of 2009 with respect to a System.

“Grant Application” means a Grant application to be filed with the Treasury under Section 1603 of the American Recovery and Reinvestment Tax Act of 2009 and all related guidance, regulations, notices, promulgations and announcements.

“Gross Asset Value” means, with respect to any asset, the asset’s adjusted tax basis for federal income tax purposes, except as follows:

(a) the initial Gross Asset Value of any asset contributed by a Member to the Company shall be the Gross Fair Market Value of such asset as of the date of contribution; provided that the initial Gross Asset Values of the assets contributed to the Company on the Initial Funding Date shall be shown in Schedule 4.2(b) to the Company LLC Agreement;

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(b) the Gross Asset Values of all Company assets shall be adjusted to equal their respective fair market values at the times described in Section 4.2(c) of the Company LLC Agreement;

(c) the Gross Asset Value of any item of Company assets distributed to any Member shall be adjusted to equal the Gross Fair Market Value of such asset on the date of distribution;

(d) the Gross Asset Values of all Company assets shall be adjusted to reflect any adjustments to the adjusted basis of such assets pursuant to Sections 734(b) or 743(b) of the Code, but only to the extent that such adjustments are required to be taken into account in determining Capital Accounts pursuant to Treasury Regulation Section 1.704-1(b)(2)(iv)(m); provided, however, that Gross Asset Values shall not be adjusted pursuant to this subsection (d) to the extent that the Managing Member determines that an adjustment pursuant to subsection (b) is necessary or appropriate in connection with a transaction that would otherwise result in an adjustment pursuant to this subsection (d); and

(e) if the Gross Asset Value of an asset has been determined or adjusted pursuant to subsection (a), (b) or (d) above, such Gross Asset Value shall thereafter be adjusted by the Depreciation taken into account with respect to such asset.

“Gross Fair Market Value” means, with respect to any asset, the fair market value of the asset as reasonably determined by the Managing Member and agreed to by Members representing a Class Majority Vote.

“Guaranteed Initial Delivery Date” has the meaning set forth in the QFCP-RC Tariff.

“Guidance” means the guidance issued on July 9, 2009, by the Treasury for payments for specified energy property in lieu of tax credits under the American Recovery and Reinvestment Act of 2009 (as updated on March 15, 2010 and in April 2011), the Frequently Asked Questions and Answers issued by the Treasury on January 8, 2010 and June 25, 2010, as updated in April 2011, and any other guidance or clarification, addition or supplement thereto issued by the Treasury or any other Governmental Authority.

“Hedge Support” means any letters of credit, guarantees, bonds, surety contracts and other credit support arrangements (and any related reimbursement obligation) to support the payment and performance obligations of the Project Company under any hedge agreement to which the Project Company is a party.

“HSR Act” means the Hart Scott Rodino Antitrust Improvements Act of 1976, as amended and the regulations adopted thereunder.

“IDC Reserve Account” is defined in the Note Purchase Agreement.

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“Independent Accounting Firm” means an accounting firm that is mutually acceptable to Class A Members holding a majority of the Class A Membership Interests, and Class B Member and if the foregoing Members cannot agree, then one of Deloitte Touche Tohmatsu, Ernst & Young, KPMG International or PricewaterhouseCoopers as chosen by the Managing Member; provided that, any such accounting firm is not the Accounting Firm.

“Independent Engineer” means SAIC Energy, Environment & Infrastructure, LLC.

“Independent Engineer Report” means the report of the Independent Engineer to be dated on or before the Initial Funding Date.

“Indemnified Costs” means Investor Indemnified Costs or Clean Technologies Indemnified Costs, as the context requires.

“Indemnified Party” means an Investor Indemnified Party or Clean Technologies Indemnified Party, as the context requires.

“Indemnifying Party” means [***] or Clean Technologies, as the context requires.

“Initial Funding” is defined in Section 2.3 of the ECCA.

“Initial Funding Date” means the date described in Section 2.3 of the ECCA.

“Initial Funding Payment” is defined in Section 2.2(a) of the ECCA.

“Initial Funding Termination Date” means March 31, 2014 or any later date agreed to by Investor and Clean Technologies.

“Insurance Report” means the Insurance Due Diligence Summary prepared by Moore- McNeill, LLC, to be dated on or before the Initial Funding Date.

“Interconnection Point” is defined in the MESPA.

“Internal Rate of Return” means, with respect to Class B Member and at any time of determination, the discount rate that sets A equal to B, where A is the present value of (a) cash (including the proceeds of any Grant, or, if elected pursuant to Section 7.5(b)(i) of the Company LLC Agreement, the proceeds of any similar successor cash program or cash received from an Alternative Tax Program) distributed to Class B Member and, if the ITC is elected pursuant to Section 7.5(b)(i) of the Company LLC Agreement and the Class B Member consents in writing to inclusion of such ITC in its Internal Rate of Return, the value of any ITC claimed on Systems to the extent allocated to Class B Member assuming a 35% federal income tax rate plus (b) any indemnity payments received by Class B Member that compensate for loss of any item listed in the foregoing clause (a), and B is the present value of the various Capital Contributions made by Class B Member.

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“Interparty Agreement” means the Interparty Agreement, dated as of March 20, 2013, among the Project Company, Company, Clean Technologies, Investor and Deutsche Bank Trust Company Americas, as collateral agent under the Note Purchase Agreement, as the same may be amended from time to time.

“Investor” is defined in the preliminary statements to the ECCA.

“Investor Guarantor” means the [***] Guarantor.

“Investor Guaranty” means the [***] Guaranty.

“Investor Indemnified Costs” means, with respect to Class B Member, the following:

(a) with respect to any indemnification, defense or hold harmless obligations under the Company LLC Agreement or the ECCA of Clean Technologies or its Affiliates, any and all damages, losses, claims, liabilities, demands, charges, suits, Taxes, penalties, costs, and reasonable expenses (including court costs and reasonable attorneys’ fees and expenses of one law firm for all Investor Indemnified Parties) incurred by such Investor Indemnified Parties, including with respect to Third Party Claims, resulting from or relating to (i) any breach or default or misrepresentation by Clean Technologies (as itself or as a Class A Member, Managing Member or Tax Matters Partner) or any Affiliate of Clean Technologies, as applicable, of any representation, warranty, covenant, indemnity or agreement under the ECCA or any other Transaction Document, including (A) in its capacity as Managing Member under the Company LLC Agreement in accordance with the terms thereof and (B) in its capacity as Tax Matters Partner under Section 7.7(b) and Section 7.7(c) of the Company LLC Agreement in accordance with the terms thereof, (ii) any claim for fraud or willful misconduct on the part of Clean Technologies or any Affiliate of Clean Technologies relating to the ECCA or any other Transaction Document, (iii) resulting from Project Company (or any of the Systems) not qualifying for (or becoming disqualified under) the REPS Act or the Tariffs as a result of any act or omission by Bloom or any Affiliate of Bloom (including, without limitation, (A) Bloom failing to achieve commercial operation (as defined in the QFCP-RC Tariff) of 5 MW of Systems by March 31, 2013 (unless such date has been extended in accordance with the QFCP-RC Tariff), (B) Bloom failing to achieve commercial operation (as defined in the QFCP-RC Tariff) of 30 MW of Systems, of which at least 20 MW of Systems were actually manufactured by Bloom in the State of Delaware by September 30, 2014 (unless such date has been extended in accordance with the QFCP-RC Tariff), (C) Bloom failing to be manufacturing fuel cells capable of being powered by renewable fuels from a permanent manufacturing facility located in the State of Delaware as of the date of Commencement of Operations (as defined in the MESPA) of the full nameplate capacity of the Portfolio, or (D) any of the acts or omissions set forth in Section 4.3 of the MESPA), (iv) Bloom failing to be in compliance with the Letter Agreement (including, if so required by

[***] Confidential Treatment Requested

14

the State of Delaware, posting the security referred to in the Letter Agreement upon or prior to the Commencement of Operation of the first System) or (v) any surcharges pursuant to the Tariffs being deemed a tax under Delaware law; and

(b) with respect to any indemnification, defense or hold harmless obligations under the Company LLC Agreement or the ECCA (if applicable) of any other Class A Member not covered under the preceding clause (a), any and all damages, losses, claims, liabilities, demands, charges, suits, Taxes, penalties, costs, and reasonable expenses (including court costs and reasonable attorneys’ fees and expenses of one law firm for all Investor Indemnified Parties) incurred by such Investor Indemnified Parties, including with respect to Third Party Claims, resulting from or relating to (i) any breach or default or misrepresentation by such Class A Member or its Affiliate, as applicable, of any representation, warranty, covenant, indemnity or agreement under the ECCA or any other Transaction Document or (ii) any claim for fraud or willful misconduct on the part of such Class A Member or its Affiliate relating to the ECCA or any other Transaction Document.

“Investor Indemnified Parties” means the [***] Indemnified Parties.

“IP Rights” is defined in Section 3.1(x) of the ECCA.

“ITC” means the 30% investment tax credit under Section 48 of the Code.

“IRS” means the Internal Revenue Service or any successor agency.

“Knowledge” means, with respect to Clean Technologies, the Company and the Managing Member, the actual knowledge after due inquiry of the senior managers of the Company listed below in the positions set forth next to such person’s name or their successors or replacements in such positions.

Name	Position
William H. Kurtz	President
William E. Brockenborough	Vice President, General Manager
Martin J. Collins	Vice President, Secretary
Scott Reynolds	Vice President
Kevin Passalacqua	Vice President
Timothy Gray	Vice President

[***] Confidential Treatment Requested

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“kW” means kilowatt or one thousand watts of Energy.

“Legal Requirement” means any law (including common law), statute, act, decree, ordinance, rule, directive (to the extent having the force of law) order, treaty, code or regulation (including any of the foregoing relating to health or safety matters or any Environmental Law) or any interpretation of any of the foregoing, as enacted, issued or promulgated by any Governmental Authority, including all amendments, modifications, extensions, replacements or re-enactments thereof.

“Letter Agreement” means that certain Letter Agreement dated October 10, 2011 between Bloom and the State of Delaware, as may be amended from time to time.

“Liens” means any liens, pledges, claims, security interests, easements, rights of way, mortgages, deeds of trust, covenants, restrictions, rights of first refusal or defects in title.

“LLC Agreement Termination Date” is defined in Section 2.4 of the Company LLC Agreement.

“Major Decisions” means:

With respect to the Pre-Flip Period, any of the following:

(a) Any sale, lease or other voluntary disposition of assets of the Project Company or Membership Interests in the Project Company with an aggregate fair market value in excess of [***] during any 12 month period, but excluding sales of (i) energy sold under the PJM Agreements or excess energy produced by Systems, (ii) environmental attributes of energy sales (such as renewable energy credits and carbon allowances), (iii) ancillary benefits of energy sales (such as capacity credits) and (iv) surplus or obsolete assets;

(b) The Company or the Project Company taking action to (i) cancel, suspend or terminate any Material Contract, (ii) assign, release or relinquish the rights or obligations of (or any security posted by) any party to, or amend (A) the DPL Agreements, the PJM Agreements, the Note Purchase Agreement, the Interparty Agreement, any Collateral Document (as defined in the Note Purchase Agreement) or any other Credit Document (solely to the extent the amendment of any other such Credit Document could reasonably be expected by the Managing Member to have a Material Adverse Effect on the Class B Members), other than any such assignment or release made in accordance with its express terms, or (B) any other Material Contract if (with respect to this clause (B) only) any of the foregoing items in this clause (ii) could reasonably be expected to have a Material Adverse Effect on the Company or the Project Company, (iii) renew or enter into any replacement Material Contract except to the extent such renewal or replacement is on substantially the same terms as the original Material Contract, (iv) replace the Administrator under the Administrative Services Agreement,

[***] Confidential Treatment Requested

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(v) replace the manager or operator under the MOMA, or (vi) enter into any new Material Contract; provided that none of the following will be considered a Major Decision: (v) taking any of the actions referred to above in this paragraph (b) in connection with a Material Contract with respect to assets that are excluded from paragraph (a) above, (w) entry into the DPL Agreements or the PJM Agreements, (x) taking any of the actions referred to above in this paragraph (b) if such actions (1) are required by any Governmental Authority or (2) involve agreements or instruments as to which such actions otherwise are permitted under the Company LLC Agreement, (y) the replacement of (1) any permit or (2) any Hedge Support with other Hedge Support that provides up to a comparable amount of credit support with comparable obligations, and (z) the enforcement or management of contracts with suppliers;

(c) The Company adopting, amending or exceeding the Annual Budget for the Project Company, except that the following will not be considered a Major Decision: (i) adoption of an Annual Budget containing an aggregate expense amount for any Fiscal Year that is not more than [***]% above the annual spending projected in the Base Case Model for such Fiscal Year or [***]% above the aggregate expense amount reflected in the Annual Budget for the previous Fiscal Year, (ii) spending up to [***]% of the aggregate expense amount reflected in the Annual Budget for a Fiscal Year and (iii) emergency spending above the [***]% limit, except that non-recurring budget items that are not included in the Base Case Model and that are not incurred or expected to be incurred in the Ordinary Course of Business will be excluded when applying the percentages in this paragraph;

(d) Approval of any transactions (other than other transactions contemplated by any of the Transaction Documents) between the Company or the Project Company, as the case may be, and any member thereof, the Administrator, or any Affiliates of any member of the Company or the Project Company, other than those entered into on an arm’s length basis;

(e) Any settlement of claims, litigation, arbitration, criminal investigation or criminal proceedings (excluding the payment of undisputed liquidated damages) involving the Company, the Project Company or the Managing Member (only to the extent such investigation or proceeding relates to its actions or failure to act in such capacity) or any of their respective officers, managers or directors except if the settlement is not with any Affiliate of Bloom and, as a result of such settlement, the Company and/or the Project Company would not be obligated to pay more than [***] in the aggregate;

(f) Change, amend or substitute the insurance required to be maintained by the Company pursuant to the ECCA or the Company LLC Agreement in a manner that would cause such insurance to be materially different from the insurance requirements prescribed therein;

[***] Confidential Treatment Requested

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(g) Any action that would cause the Company or the Project Company to engage in any business or activity that is not within the purpose of such entity, as set forth in such entity’s organizational documents, or to change such purpose;

(h) (i) any action that would cause the Company to remove the Managing Member or fill any vacancy for the Managing Member as provided in Section 8.2(c) of the LLC Agreement or any action that would cause the Project Company to remove the manager of the Project Company or fill any vacancy for the manager of the Project Company, (ii) any merger or consolidation of the Company or the Project Company, (iii) the acquisition of all or substantially all of the assets or ownership interests of another Person, (iv) sale of all or substantially all of the assets of the Company or the Project Company and (vi) the taking of any action by the Company or the Project Company described in clauses (i), (ii), (iii), (iv), (v) or (vi) of the definition of “Bankruptcy”;

(i) Granting of any Encumbrance on the assets or rights of the Company or the assets and rights of the Project Company other than Permitted Liens;

(j) Any incurrence or guarantee of indebtedness for borrowed money or capitalized lease obligations in excess of [***] (other than capital leases) in the aggregate for the Company and the Project Company;

(k) Any issuance or redemption by the Company or Project Company of any Membership Interests or other equity interest of any kind in the Company or Project Company other than any issuance permitted under Section 4.1(c) of the Company LLC Agreement;

(l) Any amendment or cancellation of the certificate of formation of the Company or the Project Company or amendment of the Project Company LLC Agreement;

(m) The admission of any additional member in the Company or Project Company, other than pursuant to terms of the Company LLC Agreement or Project Company LLC Agreement;

(n) The hiring by the Company or the Project Company of any employees or entering into any bonus, profit sharing, thrift, compensation, option, pension, retirement, savings, welfare, deferred compensation, employment, termination, severance or other employee benefit plan, agreement, trust, fund, policy or arrangement for the benefit or welfare of any directors, officers or employees of the Company or the Project Company;

(o) Any change in the Company’s or Project Company’s legal form or any recapitalization, liquidation, winding-up or dissolution of the Company or Project Company (except as permitted under the Company LLC Agreement or the Project Company LLC Agreement);

[***] Confidential Treatment Requested

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(p) Permitting (i) the possession of property of the Company by any Member, (ii) the assignment, transfer or pledge of rights of the Company in specific property of the Company for other than a Company purpose or other than for the benefit of the Company or (iii) any commingling of the funds of the Company with the funds of any other Person;

(q) Electing that the Company be treated other than as a partnership for United States federal income tax purposes or electing that the Project Company be treated other than as a “disregarded entity” for United States federal income tax purposes;

(r) Amending, or choosing to fail to obtain or, as a result of the breach of its terms, causing the revocation of, any governmental approval required for the operation, ownership, management or maintenance of the Systems or the sale or transmission of electric energy in a manner that would have a Material Adverse Effect or fail to maintain the status of the Company as an Exempt Wholesale Generator or taking any action that would cause the Company to cease to be an Exempt Wholesale Generator or a member of PJM;

(s) Engaging in any speculative financial activities, excluding (i) sales of energy and (ii) other hedge or swap arrangements, renewable energy credit sales, forward contracts and similar transactions and other transactions in effect on the Initial Funding Date or any Subsequent Funding Date, as applicable, for the Systems and replacements therefor, in each case, entered into in the Ordinary Course of Business for the Portfolio;

(t) Lending any funds from the Company to any Person;

(u) Engaging in any act that, if taken, would reasonably be expected to cause a Class A Recapture Event;

(v) If a Grant is not available with respect to certain Systems, electing under any Alternative Tax Program pursuant to Section 7.5(b)(i) of the Company LLC Agreement;

(w) Ordering the purchase of a System other than for the Project;

(x) Not pursuing the rights and remedies under any agreement with Bloom or its Affiliates after a failure to cure within the applicable cure period, including, without limitation, the MOMA, the MESPA or the Administrative Services Agreement;

(y) Selling or disposing of any energy calls purchased on or prior to the Initial Funding Date other than at or around their expiration date;

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(z) Authorizing or permitting the Company to make a capital contribution to the Project Company except in accordance with Sections 4.3 and 4.4 of the LLC Agreement;

(aa) Making any material tax election, or causing the Company to cause the Project Company to make any material tax election, other than as provided in the Company LLC Agreement;

(bb) Taking any act in contravention of or in breach of the Company LLC Agreement or the organizational documents of the Company or the Project Company;

(cc) Causing the Company or causing the Company to cause the Project Company to change its method of accounting, except as required by GAAP, or taking any action with respect to accounting policies or procedures, unless required by GAAP;

(dd) Making any distribution to any Member or causing any distribution to be made by the Company or the Project Company except as specified in the Company LLC Agreement or Project Company LLC Agreement;

(ee) Causing the Company or causing the Company to cause the Project Company to knowingly take or omit to take any action that would result in a material breach or an event of default, or that would permit or result in the acceleration of any obligation or termination of any right, under any Material Contract;

(ff) Causing the Company or causing the Company to cause the Project Company to form any Person, including any Subsidiaries; and

(gg) Taking any action in violation of, or inconsistent with, the REPS Act or any of the Tariffs, including, without limitation causing the Project Company to sell any electricity other than to PJM.

With respect to the period following the Flip Date, the matters in paragraph (a) above shall be Major Decisions, except that any such matter will be a Major Decision only with respect to the sale, lease or other voluntary disposition of assets at a price other than for fair market value, and the matters in clauses (g), (o) and (p) shall also be Major Decisions.

“Majority Vote” is defined in Section 3.2(f) of the Company LLC Agreement.

“Managing Member” is defined in Section 8.2(a) of the Company LLC Agreement.

“Material Adverse Effect” means a material adverse effect on the business, assets, liabilities, financial condition or results of operations of the Project Company, excluding any effect resulting from (a) effects of weather or meteorological events, (b) general industry strikes, work stoppages or other labor disturbances, or (c) the execution or delivery of the Transaction

20

Documents or the transactions contemplated in them or the announcement of such transactions. An adverse effect will be considered “material” under this definition for purposes of the conditions precedent to closing in Sections 2.5, 2.6, 2.7 and 2.8 of the ECCA if it will cause a reduction of at least $1,000,000 in the aggregate, across one or more conditions precedent, in the sum of the net present values of the Grants and Project Company Distributable Cash from the Portfolio through the Flip Date as projected in the Base Case Model. An adverse effect will be considered “material” under this definition for purposes of any post-closing indemnities for breach of representations if it is reasonably likely to cause a reduction of at least $1,000,000 in the aggregate in the sum of the net present values of the Grants and Project Company Distributable Cash from the Portfolio over the period from the Initial Funding Date through the Flip Date as projected in the Base Case Model. The net present value will be calculated by discounting to the Initial Funding Date for the Portfolio, a Grant and Project Company Distributable Cash received through the date of calculation and discounting the remaining Grants and cash through the projected Flip Date in the Base Case Model using the Target IRR as the discount rate.

“Material Contract” means (a) a contract for the sale of electricity or transmission services of a System for a term of more than one year, (b) a contract, lease, indenture or security agreement under which the Company or the Project Company (i) has created, incurred, assumed or guaranteed any indebtedness for borrowed money or obligations under any lease that, in accordance with GAAP, or international financial reporting standards, as applicable, should be capitalized, (ii) has created a mortgage, security interest or other consensual encumbrance on any property with a fair market value of more than [***] (other than any Permitted Liens), or (iii) has a reimbursement obligation in respect of any letter of credit, guaranty, bond, or other credit or collateral support arrangement required to be maintained by the Project Company under the terms of any contract referred to in clause (a) above, (c) a contract for management, operation or maintenance of the Company, the Project Company or a System that requires payments of more than [***], (d) a product warranty or repair contract by or with a manufacturer or vendor of equipment owned or leased by the Project Company with a fair market value of more than [***], (e) any other contract that is expected to require payments by the Company or the Project Company, in the aggregate, of more than [***] per calendar year and (f) the MESPA, the DPL Agreements, the PJM Agreements, the MOMA, the Site Leases, the Note Purchase Agreement, the Interparty Agreement, the Collateral Documents (as defined in the Note Purchase Agreement), any other Credit Document, the Administrative Services Agreement or any Transaction Document.

“MBR Authority” is defined in Section 2.7(n) of the ECCA.

“[***]” is defined in the preamble to the ECCA.

“[***] Indemnified Parties” means [***] and any person to whom [***] transfers any portion of its Class B Membership Interests in accordance with Article IX of the Company LLC Agreement, and each of their respective Affiliates and each of their respective shareholders, partners members, officers, directors, employees, agents, and other representatives, and their respective successors and assigns.

[***] Confidential Treatment Requested

21

“Member” means any Person executing the Company LLC Agreement as of the date of the Company LLC Agreement as a member of the Company or any Person admitted to the Company as a member as provided in the Company LLC Agreement (each in the capacity as a member of the Company), but does not include any Person who has ceased to be a member of the Company.

“Member Loan” means any loan or advance made by (i) a Class B Member to the Company or (ii) the Company to the Project Company, pursuant to Section 4.5 of the Company LLC Agreement.

“Member Nonrecourse Debt” means “partner nonrecourse debt” as defined in Treasury Regulation Section 1.704-2(b)(4). An example is where a Member or a person related to the Member makes a loan on a nonrecourse basis to the Company.

“Member Party” is defined in Section 3.6(a) of the Company LLC Agreement.

“Membership Interest” means the interest of a Member in the Company, including rights to distributions (liquidating or otherwise), allocations, and to vote, consent or approve, if any.

“MESPA” means the Master Energy Server Purchase Agreement, dated as of the Initial Funding Date, between Bloom and the Project Company.

“Minimum Gain Attributable to Member Nonrecourse Debt” means the amount of minimum gain there is in connection with a Member Nonrecourse Debt, calculated in the manner described in Treasury Regulation Section 1.704-2(i)(3).

“MOMA” means the Master Operation and Maintenance Agreement, dated as of the Initial Funding Date, between the Project Company and the Operator, as such agreement may be amended, supplemented or replaced from time to time.

“Moody’s” means Moody’s Investor Service, Inc.

“MW” means megawatt or one million watts of Energy.

“Nonrecourse Deduction” means a deduction for spending that is funded out of nonrecourse borrowing by the Company or that is otherwise attributable to a “nonrecourse liability” of the Company within the meaning of Treasury Regulation Section 1.704-2.

“Note Holders” means the holders, from time to time, of the notes issued by the Project Company under the Note Purchase Agreement.

“Note Proceeds” is defined in Section 2.7(h) of the ECCA.

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“Note Purchase Agreement” means the Note Purchase Agreement, dated March 20, 2013, among the Project Company and the note purchasers party thereto.

“Notice” is defined in Section 11.1 of the Company LLC Agreement.

“Operations Report” is defined in Section 7.1(a) of the Company LLC Agreement.

“Operator” means Bloom.

“Ordinary Course of Business” means the ordinary conduct of business consistent with past custom and practice (including with respect to quantity and frequency).

“Party” means, for purposes of the ECCA, a party to the ECCA and for purposes of the Company LLC Agreement, a party to the Company LLC Agreement.

“Percentage Interest” means the percentage interest shown for a Class A Member or Class B Member, as applicable, in Schedule 4.2(d) of the Company LLC Agreement as updated from time to time.

“Permitted Distribution” is defined in the Note Purchase Agreement.

“Permitted Encumbrance” means Encumbrances provided for under the Transaction Documents, liens for Taxes not yet due and payable for which adequate reserves have been provided in accordance with GAAP and restrictions on transfer of the Membership Interests under any applicable federal, state or foreign securities law.

“Permitted Investments” means any of the following having a maturity of not greater than one year from the date of issuance thereof: (a) readily marketable direct obligations of the government of the United States of America or any agency or instrumentality thereof or obligations unconditionally guaranteed by the full faith and credit of the government of the United States of America, (b) insured certificates of deposit of or time deposits with any commercial bank that is a member of the Federal Reserve System, issues (or the parent of which issues) commercial paper rated as described in clause (c) below, is organized under the laws of the United States or any State thereof and has combined capital and surplus of at least $1,000,000,000.00 or (c) commercial paper issued by any corporation organized under the laws of any State of the United States and rated at least “Prime-1” (or the then equivalent grade) by Moody’s Investors Service, Inc. or “A-1” (or the then equivalent grade) by Standard & Poor’s Corporation.

“Permitted Liens” means (a) Liens for taxes not yet due or that are being contested in good faith by appropriate proceedings and for which adequate reserves have been established in accordance with GAAP (b) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s, employees’, contractors’, operators’ or other similar Liens or charges securing the payment of expenses not yet due and payable that were incurred in the Ordinary Course of Business of the Project Company or for amounts being contested in good faith and by appropriate proceedings,

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(c) trade contracts or other obligations of a like nature incurred in the Ordinary Course of Business of the Project Company, (d) obligations or duties to any Governmental Authority arising in the Ordinary Course of Business (including under licenses and permits held by the Project Company and under all applicable laws, rules, regulations and orders of any Governmental Authority), (e) obligations or duties under easements, leases or other property rights, (f) Liens arising out of judgments or awards so long as an appeal or proceeding for review is being prosecuted in good faith and for the payment of which adequate reserves in accordance with GAAP, bonds or other security have been provided or are fully covered by insurance, (g) Liens of record and zoning and other land use restrictions that do not impair the value or intended use of a System, (h) security interests granted to satisfy credit support obligations or margin requirements under any existing or subsequently entered into power purchase agreement, power sales agreement, natural gas supply agreement (including the DPL Agreements), or swap or hedge agreement, in each case, in which the Project Company (but not any Affiliate of the Project Company) is the counterparty to such agreement, (i) Permitted Encumbrances, (j) with respect to the Project Company, easements, rights-of-way, restrictions, reservations and other similar encumbrances and exceptions to title existing or incurred in the ordinary course of business that, in the aggregate, do not in any case materially detract from the value of the property subject thereto or materially interfere with the ordinary conduct of the business of the Project Company, taken as a whole, (k) Liens created pursuant to any Credit Document and (l) all other encumbrances and exceptions that are incurred in the Ordinary Course of Business of the Portfolio, are not incurred for borrowed money, and do not have a Material Adverse Effect on either the use of any material assets of the Project Company as currently used or the value of any such assets; provided, however, that the foregoing excludes any Liens held by Bloom or its Affiliates.

“Permitted Transfers” is defined in Section 9.5 of the Company LLC Agreement.

“Person” means an individual, corporation, partnership, limited liability company, association, trust, unincorporated organization, or other entity.

“PJM” means PJM Interconnection, LLC, a regional transmission organization.

“PJM Agreements” is defined in the QFCP-RC Tariff.

“PJM Grid” means the PJM electricity transmission grid.

“PJM Market” means the PJM Interchange Energy Market which Project Company is to sell all of its energy, capacity, ancillary services and environmental attributes pursuant to the QFCP-RC Tariff and the PJM Agreements, and any PJM successor market.

“Placed in Service” means with respect to any System, the completion of or the performance of all of the following activities: (1) obtaining the necessary licenses and permits for the operation of the System and sale of Energy, capacity, ancillary services and RECs generated by (or attributable to) the System, (2) completion of critical tests necessary for proper operation of such System, (3) synchronization of such System onto the PJM Grid, and (4) the commencement of daily operation of such System.

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“Portfolio” is defined in the preliminary statements of the ECCA.

“Pre-Flip Period” means the period commencing on the Initial Funding Date and ending on the Flip Date.

“Prime Rate” means a rate per annum equal to the lesser of (a) the prime rate published from time to time in The Wall Street Journal, and (b) the maximum rate permitted by Applicable Laws.

“Pro Rata Shares” means, with respect to (i) any Class A Member, such Class A Member’s Class A Membership Interests divided by the aggregate Class A Membership Interests of all Class A Members or (ii) any Class B Member, such Class B Member’s Class B Membership Interests divided by the aggregate Class B Membership Interests of all Class B Members.

“Progress Contributions” is defined in Section 2.2(b)(ii) of the ECCA.

“Project” is defined in the preliminary statements of the ECCA.

“Project Company” means Diamond State Generation Partners, LLC.

“Project Company Distributable Cash” means, as of any date, all cash, cash equivalents and liquid investments (excluding Capital Contributions, Permitted Investments and any cash received in respect of the Grant) held by the Project Company as of such date less all reasonable reserves that, in the reasonable judgment of the manager of the Project Company, are necessary or appropriate for the operation of the Project Company or the Systems consistently with the Prudent Operator Standard. Reasonable reserves shall consist of any combination of the following reserves as reasonably determined by the manager of the Project Company, without duplication: (i) necessary for payment of expenses included in the Annual Budget, (ii) necessary to prevent or mitigate an emergency situation, (iii) established with the prior written consent of the Members (by Class Majority Vote), (iv) necessary to allow the Project Company to meet expenses that are clearly identified and expected with reasonable certainty to become due, but that are not included in the Annual Budget, (v) necessary to ensure sufficient spare parts or the payment of operational and maintenance costs for each of the Systems and (vi) one or more additional reserves not referred to in the preceding clauses of this definition of “Project Company Distributable Cash” that do not, together with the reserves reserved pursuant to clause (vi) of the definition of Company Distributable Cash, in the aggregate exceed $1,600,000.

“Project Company LLC Agreement” means the Second Amended and Restated Limited Liability Company Agreement of the Project Company, dated as of March 20, 2013, as the same may be amended, supplemented or replaced from time to time.

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“Projected Contribution Schedule” means the projected schedule of Capital Contributions to be made by Clean Technologies and Investor at each Funding attached to the ECCA as Annex II.

“Prudent Operator Standard” means that a Person will (i) perform its duties in compliance with the requirements of the Material Contracts, (ii) perform the duties in accordance with commercially reasonable applicable fuel cell industry standards (A) taking into account through the Flip Date the need to maintain qualification for a Grant (or if unavailable, the Alternative Tax Program) and to avoid any Class A Recapture Event and (B) that the Portfolio must qualify for and remain qualified to receive service under the QFCP-RC Tariff, and (iii) use sufficient and properly trained and skilled personnel.

“PUHCA” means the Public Utility Holding Company Act of 2005 and FERC’s implementing regulations.

“Purchase Option” is defined in Section 9.7 of the Company LLC Agreement.

“Purchase Option Date” is defined in Section 9.7 of the Company LLC Agreement.

“Purchase Option Price” means the greater of (i) the fair market value of the Class B Membership Interests on the Purchase Option Date as determined by agreement between Class B Member transferring its Class B Membership Interests and the Class A Members and (ii) an amount sufficient to cause Class B Member to achieve an Internal Rate of Return equal to [***]%; provided, however, that should Class B Member transferring its Class B Membership Interests and the Class A Members fail to agree on such fair market value within 30 days of the date on which the Purchase Option Exercise Notice is provided, such fair market value shall be determined by the Appraisal Method which shall be then automatically invoked unless all of the Members otherwise agree in writing.

“Purchase Option Exercise Notice” is defined in Section 9.7 of the Company LLC Agreement.

“QFCP-RC Tariff” means DPL’s Service Classification “QFCP-RC” for REPS Qualified Fuel Cell Provider Projects as approved by DPSC in Order no. 8062 dated October 18, 2011, as adopted and supplemented by DPSC’s Findings, Opinion and Order No. 8079, dated December 1, 2011.

“Quarter” means a calendar quarter.

“Qualified Transferee” [***]

[***] Confidential Treatment Requested

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[***]

“Recapture Claim” means a written notice provided by the Class A Members to the Company and Class B Member with respect to Recapture Damages caused by a Class B Recapture Event or by Class B Member to the Company and the Class A Members with respect to Recapture Damages caused by a Class A Recapture Event.

“Recapture Damages” means the amount of (i) any portion of any payment required to be made to the United States of America (or any agency or instrumentality thereof), as applicable, resulting from all or any portion of the Grant or any successor grant program or cash-based subsidy being “recaptured” or denied that is paid by Class B Member, in the case of a Class A Recapture Event, or by the Class A Members, in the case of a Class B Recapture Event, and (ii) with respect to a Member if the Grant, any successor grant program or cash-based subsidy is unavailable with respect to any System, such Members’ share of any payment required to be made by such Member to the United States of America (or any agency or instrumentality thereof) resulting from the recapture or denial of all or any portion of any refundable tax credit or ITC with respect to such System.

“Recapture Event” means an event that results in denial or recapture of the Grant, or any Alternative Tax Program, or a portion thereof, by Treasury or any other Governmental Authority.

“Recapture Period” means, with respect to any System, the period from the date on which the System is placed in service for federal income tax purposes until the 5th anniversary of the date the System is placed in service for federal income tax purposes.

“RECs” means any credits, credit certificates, green tags or similar environmental or green energy attributes (such as those for greenhouse reduction or the generation of green power or renewable energy) created by a governmental agency or independent certification board or group generally recognized in the electric power generation industry, and generated by or associated with the System or electricity produced therefrom, but excluding the Grants and ITC.

“Red Lion Site” means the Site described in the DPL Site Lease.

“Refund Notice” is defined in Section 2.2(g) of the ECCA.

“Refund Payment Date” is defined in Section 2.2(g) of the ECCA

“Representatives” means, with respect to any Person, the managing member(s), the officers, directors, employees, representatives or agents (including investment bankers, financial advisors, attorneys, accountants, brokers and other advisors) of such Person, to the extent that such officer, director, employee, representative or agent of such Person is acting in his or her capacity as an officer, director, employee, representative or agent of such Person.

[***] Confidential Treatment Requested

27

“REPS Act” means the Renewable Energy Portfolio Standards Act, as amended most recently by S.B. 124, enacted July 10, 2011 (Title 26, Chap. 1, section 351 et seq. of the Code of the State of Delaware).

“Required Holders” shall have the meaning provided to such term in the Note Purchase Agreement.

“Required Ratings” means a long-term senior unsecured credit rating, long-term local issuer credit rating or insurer financial strength rating of at least A- by Standard & Poor’s Corporation or A3 by Moody’s Investors Service, Inc. or, if either agency is not then in the business of providing ratings, equivalent ratings from any other entity that is then a nationally recognized statistical rating organization.

“Sale Notice” is defined in Section 9.8(a) of the Company LLC Agreement.

“Sale Option” is defined in Section 9.8(a) of the Company LLC Agreement.

“Sale Option Date” is defined in Section 9.8(a) of the Company LLC Agreement.

“Sale Price” means the fair market value of the Class B Membership Interests on the Sale Option Date as determined by agreement between Class B Member transferring its Class B Membership Interests and the Class A Member; provided, however, that should Class B Member transferring its Class B Membership Interests and the Class A Member fail to agree on such fair market value within 30 days of the date on which the Sale Notice is provided, such fair market value shall be determined by the Appraisal Method which shall be then automatically invoked unless otherwise agreed by all of the Members in writing.

“S&P” means Standard and Poor’s Corporation.

“Schedules” means, in the case of the ECCA, the schedules attached to the ECCA and in the case of the Company LLC Agreement, the schedules attached to the Company LLC Agreement.

“Section 203 Order” means the order issued by FERC authorizing the Company under Section 203(a)(1) of the FPA to issue the Class B Membership Interests to [***].

“Securities Act” is defined in Section 3.3(e) of the ECCA.

“Site” is defined in the MESPA.

“Site Leases” means, collectively, the DPL Site Lease and the DDOT Site Lease.

“Subsequent Funding” is defined in Section 2.4 of the ECCA.

“Subsequent Funding Date” is defined in Section 2.4 of the ECCA.

[***] Confidential Treatment Requested

28

“Subsequent Funding Payment” is defined in Section 2.2(b) of the ECCA.

“Subsequent Funding Termination Date” means March 31, 2014 or any later date agreed to by Investor and Clean Technologies.

“Subsidiary” means, with respect to any Person, any corporation, partnership, limited liability company, joint venture or other entity of which such Person (either alone or through or together with any other Person pursuant to any agreement, arrangement, contract or other commitment) owns, directly or indirectly, 50% or more of the stock or other equity interests the holders of which are generally entitled to vote for the election of the board of directors or other governing body of such corporation or other legal entity.

“System” means each proprietary solid oxide fuel cell power generating unit including the integrated assembly of mounting assemblies, metering, transformers, disconnects, switches, wiring devices and wiring interconnected with the PJM Grid and connected to DPL as the supplier of natural gas to fuel the System.

“Target IRR” means a pre-tax Internal Rate of Return of [***]%.

“Target IRR Notice” is defined in Section 7.1(e) of the Company LLC Agreement.

“Tariffs” means the QFCP-RC Tariff and the Gas Tariff.

“Tax” (and, with correlative meaning, “Taxes” and “Taxable”) means:

(a) any taxes, customs, duties, charges, fees, levies, penalties or other assessments, fees and other governmental charges imposed by any Governmental Authority, including, but not limited to, income, profits, gross receipts, net proceeds, windfall profit, severance, property, personal property (tangible and intangible) production, sales, use, leasing or lease, license, excise, duty, franchise, capital stock, net worth, employment, occupation, payroll, withholding, social security (or similar), unemployment, disability, payroll, fuel, excess profits, occupational, premium, severance, estimated, alternative or add-on minimum, ad valorem, value added, turnover, transfer, stamp, or environmental tax, or any other tax, custom, duty, fee, levy or other like assessment or charge of any kind whatsoever, together with any interest, penalty, addition to tax, or additional amount attributable thereto; and

(b) any liability for the payment of amounts with respect to payment of a type described in clause (a), including as a result of being a member of an affiliated, consolidated, combined or unitary group, as a result of succeeding to such liability as a result of merger, conversion or asset transfer or as a result of any obligation under any tax sharing arrangement or tax indemnity agreement.

“Tax Matters Partner” is defined in Section 7.7(a) of the Company LLC Agreement.

[***] Confidential Treatment Requested

29

“Tax Returns” means any return, report, statement, information return or other document (including any amendments thereto and any related or supporting information) filed or required to be filed with any Governmental Authority in connection with the determination, assessment, collection or administration of any Taxes or the administration of any laws, regulations or administrative requirements relating to any Taxes, including after the Funding any IRS Schedule K-1 issued to Members by the Company, information return, claim for refund, amended return or declaration of estimated Tax.

“Third Party Claim” means any action, proceeding, demand or claim by a third party (it being understood that any Affiliate of a Member shall not be deemed to be a third party) excluding any claim relating to the recapture, loss, or denial of all or a portion of a Grant that is already provided for in Section 6.6, Section 6.7, Section 6.8 and Section 6.9 of the Company LLC Agreement.

“Third Party Penalty Claim” is defined in Section 9.14 of the Company LLC Agreement.

“Tracking Model” means the Base Case Model updated to reflect actual results of the Company, but with the assumptions and conventions in Section 6.5 of the Company LLC Agreement remaining unchanged.

“Transaction Documents” means the Company LLC Agreement, the Project Company LLC Agreement, the ECCA, the Administrative Services Agreement, the MESPA, the MOMA, the [***] Guaranty, the Bloom Guaranty and each of the other documents required to be delivered on the Execution Date, individually and collectively, and, if any Initial Funding or Subsequent Funding shall have occurred, each document required to be delivered on the Initial Funding Date or a Subsequent Funding Date, individually and collectively.

“Transfer” is defined in Section 9.1 of the Company LLC Agreement.

“Treasury” means the United States Department of the Treasury.

“Treasury Regulations” means the regulations promulgated under the Code, by the Treasury, as such regulations may be amended from time to time. All references herein to specific sections of the regulations shall be deemed also to refer to any corresponding provisions of succeeding regulations, and any reference to temporary regulations shall be deemed also to refer to any corresponding provisions of final regulations.

“UCC” means the Uniform Commercial Code, as the same may be in effect in the State of New York or any other applicable jurisdiction.

OTHER DEFINITIONAL PROVISIONS

All terms in the ECCA and the Company LLC Agreement, as applicable, shall have the defined meanings when used in any certificate or other document made or delivered pursuant thereto unless otherwise defined therein.

[***] Confidential Treatment Requested

30

As used in the ECCA and the Company LLC Agreement and in any certificate or other documents made or delivered pursuant thereto, accounting terms not defined in the ECCA or the Company LLC Agreement or in any such certificate or other document, and accounting terms partly defined in the ECCA or the Company LLC Agreement or in any such certificate or other document to the extent not defined, shall have the respective meanings given to them under GAAP. To the extent that the definitions of accounting terms in the ECCA or the Company LLC Agreement or in any such certificate or other document are inconsistent with the meanings of such terms under GAAP, the definitions contained in the ECCA or the Company LLC Agreement or in any such certificate or other document shall control.

The words “hereof”, “herein”, “hereunder”, and words of similar import when used in the ECCA and the Company LLC Agreement shall refer to the ECCA or the Company LLC Agreement, as the case may be, as a whole and not to any particular provision of the ECCA or the Company LLC Agreement. Section references contained in the ECCA and the Company LLC Agreement are references to Sections in the ECCA or the Company LLC Agreement, as applicable, unless otherwise specified. The term “including” shall mean “including without limitation”.

The definitions contained in the ECCA and the Company LLC Agreement are applicable to the singular as well as the plural forms of such terms and to the masculine as well as to the feminine and neuter genders of such terms.

Any agreement, instrument or statute defined or referred to herein or in any instrument or certificate delivered in connection herewith means such agreement, instrument or statute as from time to time amended, modified or supplemented and includes (in the case of agreements or instruments) references to all attachments thereto and instruments incorporated therein.

Any references to a Person are also to its permitted successors and assigns.

All Article and Section titles or captions contained in the ECCA or the Company LLC Agreement, as applicable, or in any Exhibit or Schedule referred to therein and the table of contents of the ECCA and the Company LLC Agreement are for convenience only and shall not be deemed a part of the ECCA or the Company LLC Agreement, as the case may be, or affect the meaning or interpretation of the ECCA or the Company LLC Agreement, as applicable. Unless otherwise specified, all references in the ECCA or the Company LLC Agreement to numbered Articles and Sections are to Articles and Sections of the ECCA or the Company LLC Agreement, as applicable, and all references herein to Schedules or Exhibits are to Schedules and Exhibits to the ECCA or the Company LLC Agreement, as applicable.

Unless otherwise specified, all references contained in the ECCA or the Company LLC Agreement, in any Exhibit or Schedule referred to therein or in any instrument or document delivered pursuant thereto to dollars or “$” shall mean United States dollars.

The Parties to the ECCA have participated jointly in the negotiation and drafting of the ECCA. The Parties to the Company LLC Agreement have participated jointly in the negotiation

31

and drafting of the Company LLC Agreement. In the event an ambiguity or question of intent or interpretation arises, the ECCA and the Company LLC Agreement shall be construed as if drafted jointly by the respective Parties thereto and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any of the provisions of the ECCA or the Company LLC Agreement, as the case may be.

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ANNEX II

CLASS B MEMBERSHIP INTERESTS

Class B Member	Number of Class B Membership Interests Owned		Percentage of Class B Membership Interests Owned
[***]		[***]		[***]	%

[***] Confidential Treatment Requested

Annex II - 1

SCHEDULE 4.2(b)

CONTRIBUTED PROPERTY

Member	Contributed Value
Clean Technologies II, LLC		[***]
[***]		[***]

[***] Confidential Treatment Requested

Schedule 4.2(b) - 1

SCHEDULE 4.2(d)

CAPITAL ACCOUNT BALANCE AND PERCENTAGE INTEREST

Member Name and Address	Capital Account Balance		Percentage Interest
Clean Technologies II, LLC		[***]		[***]% of the Class A
c/o Bloom Energy Corporation
1299 Orleans Drive
Sunnyvale, California 94089
Attn: Scott Reynolds
Telephone: (408) 543-1551
Fax: (408) 543-1501
[***]		[***]		[***]% of the Class B
[***]
[***]
[***]
[***]
[***]
with a copy of any notice sent to:
[***]
[***]
[***]
[***]
[***]
and with a copy of any notice sent, which will not constitute notice, to:
[***]
[***]
[***]
[***]
[***]
[***]

[***] Confidential Treatment Requested

Schedule 4.2(d) - 1

SCHEDULE 8.2(e)

OFFICERS

William H. Kurtz	President
William E. Brockenborough	Vice President, General Manager
Martin J. Collins	Vice President, Secretary
Timothy Gray	Vice President

Schedule 8.2(e) - 1

SCHEDULE 8.4

INSURANCE

The Managing Member shall cause the Company to acquire and maintain (including making changes to coverage and carriers) the casualty, general liability (including product liability), property damage and/or other types of insurance on the terms set forth in this Schedule.

In each case the policies must be with insurance carriers with a rating of at least A- and a financial size category of at least X by A.M. Best or A by S&P or otherwise reasonably acceptable to Class B Members.

The policies specified in Appendix 1 of this Schedule shall be in full force and effect at all times on and after the Effective Date until the LLC Agreement Termination Date subject to renewal no more frequently than annually.

At no time shall there be any gap in cover.

The policy limits and cover of the insurances required in this Schedule shall be sufficient to satisfy the requirements set forth in the Company LLC Agreement, but in no event less than the limits and coverage provisions set forth in Appendix 1 herein. The obligation to verify that the insurance meets the requirements of the Company LLC Agreement shall rest solely with the Company.

The Managing Member shall not violate or permit to be violated any condition, provision or requirement of any insurance policy required by this Schedule, and the Managing Member shall cause Company to perform, satisfy, and comply with all conditions, provisions and requirements of all insurance policies.

The Managing Member hereby waives any and every claim for recovery against Class B Members or their directors, officers and employees and agents for any and all loss or damage covered by any insurance policies to be maintained under this Schedule to the extent such loss or damage is recovered under any such policy.

All policies of insurance required to be maintained pursuant to this Schedule, other than cover required by law, shall be endorsed such that if at any time they are cancelled, lapsed, terminated or suspended (by any party including the insuring parties), such cancellation, lapse, termination or suspension shall not become effective until at least 30 days after receipt by Class B Members from such insurer of such cancellation, lapse, termination or suspension, except for non-payment of premium for which the required written notice shall be 10 days. In addition to this requirement, the Managing Member shall inform the Class B Members as soon as reasonably possible if it becomes aware of any such cancellation, lapse, termination or suspension or of any reasonable prospect of such and shall further require the Company’s broker to do the same.

• All policies of insurance required to be maintained pursuant to this Schedule, except workers compensation and employers liability, shall provide: Additional Insured status

for Class B Members and their respective affiliates, directors, officers and employees and agents (collectively, the “Additional Insureds”). This requirement shall not apply to any professional indemnity policy.

• Waivers of subrogation from the insurers in favor of the Additional Insureds.

• Policies either (a) non-cancellable except for non-payment of premium with at least 10 days written notice of such to the Class B Members; or (b) cancellation/non-payment provisions in accordance with the provisions of this Schedule.

• Class B Members will have the right but not the obligation to pay premiums on behalf of the Company in case of non-payment.

• Policies shall be unaffected by any bankruptcy or foreclosure relating to the Managing Member, the Company or the Project Company.

• Insurance shall be primary and not excess to or contributing with any other insurance or self-insurance maintained by the Managing Member, the Company, or the Additional Insureds. However, policies can act in excess of such project-specific policies provided by contractors in accordance with the requirements of this Schedule.

• Insurer shall not permit the Managing Member to reduce limits or cover or degrade terms and conditions without the prior written approval of the Class B Members.

• The Additional Insureds shall have no obligations whatsoever including, but not limited to, no obligation to pay premiums and no obligation to pay deductibles.

• Policy limits shall act in excess of deductibles including the indemnity period for time element insurance shall act in excess of the delay deductible for such insurance.

• Insurer costs and expenses including any associated with claims including claims adjustment are for the account of the relevant insurer and further will not be deducted from policy limits or sublimits.

In addition, all property policies including marine cargo (if applicable) and further including any time element insurance shall provide:

• That Class B Members shall be loss payee of any amounts payable under the policies in relation to the Managing Member, the Company or the Project Company.

• Non vitiation in accordance with a multiple insured clause acceptable to the Class B Members or equivalent protection.

• Replacement cost, new for old, with no deduction of any kind including no coinsurance provision or a waiver thereof and no allowance for depreciation (accounting or otherwise), obsolescence or loss of value over time other than in a total constructive loss or other scenario where repair/replacement does not follow loss.

• An advance or partial payment endorsement.

• A clause requiring the insurer to make final payment on any claim within thirty days after the submission of proof of loss and its acceptance by the insurer.

• Except for marine transit policies, a LEG2 exclusion or similar endorsement with no sublimit applied.

In addition, all liability policies except workers compensation and employers liability shall provide:

• Severability.

• Cross liability with no exclusions.

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The above requirements shall be referred to as the “Required Provisions”. The Required Provisions can be provided either as endorsements to or in the main body of the relevant policy. All policies that replace or renew policies shall contain provisions, including limits, sublimits, deductibles, exclusions and the Required Provisions, that are, mutatis mutandis, in all material regards at least the same as those in place at the Effective Date or, if later, the date of first inception of such policy cover, except in relation to risks where exposure no longer exists or where a better level of cover is provided or which would be required in accordance with the provisions of this Schedule.

The Managing Member shall provide Class B Members as soon as reasonably possible prior to the Initial Funding Date, and at least 10 days prior to any subsequent policy inception or renewal, a certificate of pre-agreed format from:

• Each placing broker confirming:

• Summary policy terms in the pre-agreed format.

• That all policies required by this Schedule are in full force and effect.

• All insurance premiums that are due and payable have been paid in full with no premium overdue.

There shall be appended to such certificate or letter of undertaking certificates from insurers for each policy required by this Schedule listing the major sublimits (to be agreed) and confirming that all Required Provisions that apply to such policy are in place.

• The Insurance Consultant (as defined in the Note Purchase Agreement) confirming that:

• The insurance provided complies with the requirements of this Schedule and further complies with the requirements of the Managing Member in the Transaction Documents.

• That the undertakings made by each placing broker conform to the requirements of prudent industry practice.

The insurance provided by the Company shall be at least that evidenced in any certificates or other evidence provided by the Company or the Project Company.

Any of the requirements of this Schedule can be satisfied by single or by combined policies. However, as would be deemed necessary in accordance with prudent industry practice, a joint loss agreement will be required and included as part of the respective policies (for example, if there were separate marine transit and builders all-risk policies, then a 50:50 clause would be required).

If in the opinion of the Managing Member, acting reasonably, any insurance, including the terms and conditions, Required Provisions and limits or deductibles thereof, hereby required by this Schedule to be maintained, other than insurance required to be maintained by law which shall be maintained at all times, shall not be available on commercially reasonable terms in the commercial insurance market, the Managing Member shall promptly inform the Class B Members of such purported unavailability and the Managing Member shall seek a waiver from Class B Members in relation to such purported unavailability in which case the Class B Members, acting after consultation with the Insurance Consultant, shall not unreasonably

- 4 -

withhold agreement to waive such requirement to the extent the maintenance thereof is not so available. The granting by Class B Members of any such waiver is conditional on: (i) the Managing Member first requesting such waiver in writing, which request shall be accompanied by written reports prepared by the Company and its placing broker certifying that such insurance is not available on commercially reasonable terms in the commercial insurance market for projects of similar type and capacity and, in any case where the required amount is not so available, certifying as to the maximum amount which is so available, and explaining in detail the basis for such conclusions and the form and substance of such reports to be reasonably acceptable to the Class B Members after consultation with the Insurance Consultant; (ii) at any time after the granting of any such waiver, the Class B Members may request, and the Managing Member furnish to the Class B Members within fifteen (15) days after such request, supplemental reports reasonably acceptable to the Class B Members updating the prior reports and reaffirming such conclusion; (iii) any such waiver granted by the Class B Members can amend, to the extent reasonably required to mitigate any increased risks created by the absence of insurance cover that is the subject of the waiver, any of the terms of this Schedule; (iv) the Class B Members may require the Company to obtain the best available insurance comparable to the requirements of this Schedule on commercially reasonable terms then available in the commercial insurance market (as determined by the Insurance Consultant); and (v) such waiver shall be effective only so long as such insurance shall not be available on commercially reasonable terms in the commercial insurance market (as determined by the Insurance Consultant) it being understood that the failure of the Managing Member to furnish any supplemental reports shall be deemed to be conclusive evidence that such waiver is no longer effective because such condition no longer exists, but that such failure is not the only way to establish such non-existence.

The policy teams actually provided in accordance with the provisions of this Schedule shall be at least those evidenced to the Company.

Any failure on the part of Class B Members to pursue or obtain the evidence of insurance required by this Schedule from the Managing Member and/or failure to point out any noncompliance of such evidence of insurance shall not constitute a waiver of any of the insurance requirements in this Schedule.

Each liability insurance policy required pursuant to this Schedule that is permitted to be written on a “claims made” basis shall provide (a) a retroactive date (as such term is specified in each of such policies) that is no later than the Effective Date and (b) each time any policy written on a “claims made” basis is not renewed or the retroactive date of such policy is to be changed, the Company shall obtain and maintain, or cause to be obtained or maintained, for each such policy or policies the broadest extended reporting period coverage, or “tail”, reasonably available in the commercial insurance market for each such policy or policies but in no case less than three (3) years. The Company may satisfy the requirements of this Schedule by obtaining “prior acts” coverage from a subsequent insurance carrier on terms acceptable to the Class B Members, acting reasonably.

All property insurance including marine cargo and any time element insurance shall not include any annual or term aggregate limits or sublimits except for the perils of windstorm, flood, earth movement and land and water decontamination but only to the extent permitted in Appendix 1 to this Schedule. Liability policies may have general aggregate limits in accordance with prudent insurance market practice.

- 5 -

All insurance policies required to be maintained pursuant to this Schedule shall contain terms and conditions reasonably acceptable to the Class B Members following consultation with the Insurance Consultant.

In the event that at any time the insurance as herein provided or as evidenced shall be reduced or cease to be maintained, then the Class B Members, upon ten (10) Business Days’ prior written notice (unless such insurance coverage would lapse within such period, in which event notice should be given as soon as reasonably possible) to the Company of any such failure, may (but shall not be obligated to) take out the required policies of insurance and pay the premiums on the same. All amounts so advanced for such purpose shall become an additional obligation of the Company to the Class B Members and the Company shall forthwith pay such amounts (as provided in the Company LLC Agreement, if any).

The Class B Members can, acting reasonably, require such additional cover to be provided as is required to confirm to prudent industry practice.

The Class B Members shall have the option to be present and/or to send representatives during meetings and/or negotiations with insurers of any loss settlement in relation to the Company or the Project regarding (a) total constructive loss or any scenario in which repair/replacement will not follow loss, (b) any circumstance involving a claim in relation to an event or series of events which has or could be reasonably expected to lead to a default under any Transaction Documents or material contracts. Neither the Managing Member nor any of its Affiliates shall be permitted to settle any such claim with an insurer without the approval of the Class B Members to the agreed settlement.

The Class B Members may, pursuant to its rights and obligations under this Schedule, consult with the Insurance Consultant and require reports, compliance certificates and other work product from the Insurance Consultant.

Terms used in this Schedule, unless otherwise specifically defined herein or in the Company LLC Agreement, shall have the meaning normally ascribed to them in accordance with prudent industry practice in relation to a project similar in type and jurisdiction as the Project.

- 6 -

Appendix 1

Construction Phase Property Policy

From the Initial Funding Date, evidence shall be provided that is reasonably acceptable to the Class B Members that adequate property insurances are in place sufficient to cover the value of (a) the largest transit shipment and offsite storage; and (b) aggregate assets at the Project site prior to the All Risk Property and Business Interruption Insurance being in full force and effect. Furthermore, the Class B Members will be added as additional insured to the construction general liability policy which shall have limits and terms adequate to cover their exposure.

All Risk Property and Business Interruption Insurance

From the Initial Funding Date, “All Risk Property” insurance shall be provided for all property, equipment and construction and erection activities associated with the Project on an “all risk” basis insuring the Company, Project Company and the Additional Insureds, as their interests may appear, including but not limited to coverage for the perils of earth movement (including but not limited to earthquake, landslide, subsidence, sink hole and volcanic eruption), flood, named windstorm. There shall be no requirement for machinery breakdown coverage subject to the agreement of the Class B Members, acting reasonably, that such risks are adequately covered by the Power Performance Warranty.

The policy limit shall be an amount not less than the aggregate full replacement cost of the Project such amount also being referred to as the “full policy limit”. Full insurable value shall mean the full replacement cost value of the Project on a “new for old” basis, including but not limited any new or existing buildings or structures, any improvements to new or existing property, equipment, mechanical plant, electrical plant, spare parts, and supplies and temporary works.

Per occurrence sublimits shall be at least as follows:

•       Debris removal physical “loss”	25% of the amount payable for the direct
•       Architects and engineers fees	$2m
•       Expediting expense	$lm
•       Blueprints, drawings, etc.	$1m or less
•       On site pollution	$100,000

Schedule 8.4 - 1

An annual aggregate sublimit shall be permitted for flood of $10M. An annual aggregate sublimit shall be permitted for earth movement of $25M subject to confirmation from the Independent Engineer and accepted by the Class B Members, acting reasonably, that any such damage is likely to be within this limit. Limits for windstorm shall be full policy limits on a per occurrence basis.

The All Risk Property policy shall include (i) a seventy-two (72) hour flood/named windstorm/earthquake clause, (ii) an unintentional errors and omissions clause. There shall be no serial loss clause.

Business Interruption coverage insuring the loss of expected gross revenues for the largest single Project for a period of not less than the greater of (a) 12 months; and, (b) the longest lead time for replacement as determined by the Class B Members in consultation with the Independent Engineer as a result of physical loss or damage by perils required to be insured under the All Risk Property policy, including all sections preceding this section, which cause a reduction in output.

Contingent business interruption insurance covering loss of gross revenues less non-continuing expenses for:

• Power Suppliers and Public Utilities Extension — loss, including delay, caused by interference/interruption of power/other utility including export substation — full cover.

• Prevention of Ingress/Egress 90 days

• Damage to an export substation cover for loss of expected gross revenues less non-recurrent costs for a six month indemnity period.

Some or all of the requirements for contingent business interruption can be reduced or eliminated subject to the agreement of the Class B Members that such risks or proportions of such risks are adequately covered by the Tariff.

Deductibles shall be the best commercially available in accordance with prudent industry practice not exceeding 2% for earthquake.

Marine Cargo and Marine Business Interruption Insurance

To the extent a material exposure exists, transit coverage, either included in a property policy or under a separate policy (including air, land and ocean cargo, as applicable) on an “all-risk” basis and a “warehouse to warehouse” basis with a per occurrence limit equal to not less than 110% of the value including transit and insurance of such shipment involving the Project to or from any storage site or the Project site at all times for which the Project Company has accepted risk of loss or has responsibility for providing insurance. Coverage shall include loading and unloading, temporary storage (as applicable) and a 50/50 clause (if applicable). Coverage shall be maintained in accordance with prudent industry practice in all regards with per occurrence deductibles of not more than $100,000 for physical damage and other terms and conditions acceptable to the Class B Members.

- 2 -

Marine Business Interruption insurance shall be attached to the Marine Cargo policy providing equivalent cover, mutatis mutandis, to the Business Interruption cover attached to the All Risk Property policy in accordance with the terms of this Schedule.

General Liability

A limit of $1,000,000 per occurrence and in the aggregate shall be provided for:

• Property damage, death and injury (including mental injury).

• Broad form property damage.

• Blanket contractual.

• Products/completed operations

• Advertising injury

• XCU

Deductibles shall be the best commercially available in accordance with prudent industry practice.

Automobile Liability

Automobile liability insurance, to the extent exposure exists, including coverage for owned, non-owned and hired automobiles for both bodily injury and property damage and containing appropriate no-fault insurance provisions or other endorsements in accordance with state legal requirements, with a combined single limit of no less than $1,000,000 per accident with respect to bodily injury, property damage or death. Deductibles shall be the best commercially available in accordance with prudent industry practice.

Workers’ Compensation and Employers Liability

If Project Company or the Company has employees, workers’ compensation insurance in compliance with statutory requirements and employers liability insurance, to the extent exposure exists, with a limit of not less than $1,000,000 per accident, per employee and per disease including such other forms of insurance that the Project Company or the Company is required by law to provide for the Project, all other states’ endorsement and, to the extent any exposure exists, coverage with respect to the USL&H Act and Jones Act, covering loss resulting from bodily injury, sickness, disability or death of the employees of the Project Company or the Company. Deductibles shall be the best commercially available in accordance with prudent industry practice.

Pollution Liability

Pollution liability insurance for liability arising out of property damage or bodily injury to third parties as a result of sudden and accidental pollution including the cost of on-site and off-site clean up in an amount not less than $1,000,000 per occurrence and in the aggregate. Deductibles shall be the best commercially available in accordance with prudent industry practice.

- 3 -

Umbrella Liability Insurance

An aggregate limit of $15,000,000 (or $20,000,000, if so required by any Transaction Document or material contract) shall be attached and in excess of the underlying general liability, automobile liability, employers liability policies on a following form basis with drop down provisions.

Errors and Omissions Liability

Errors and omissions insurance for liability arising out of property damage or bodily injury to third parties as a result of prototype manufacturing errors and omissions liability $1,000,000 per glitch and in the aggregate. Deductibles shall be the best commercially available in accordance with prudent industry practice.

Directors & Officers Insurance

Unless directors and officers are indemnified by the Company to the reasonable satisfaction of the Company, Directors & Officers insurance, including Employment Practices (if employees) in an amount not less than $10,000,000 on industry standard policy forms subject to a retention not to exceed $50,000.

- 4 -

SCHEDULE 9

TRANSFER REPRESENTATIONS AND WARRANTIES

[The Class B Member] is a [                    ] duly organized, validly existing and in good standing under the laws of [                    ] and has all requisite [                    ] power and authority to reconvey the Class B Membership Interests as contemplated by the Agreement.

(a) [The Class B Member] owns directly 100% of the Company’s outstanding Class B Membership Interests to the extent that is what it was sold under the [ECCA] [other transfer documentation].

(b) [The Class B Member] has absolute record and beneficial ownership and title to the Membership Interests held by [the Class B Member] to the extent that is what it was sold under the [ECCA] [other transfer documentation], free and clear of any Encumbrances except Permitted Encumbrances.

(c) The assignment agreement effecting the Transfer of the Class B Membership Interests from [the Class B Member] to [the Class A Member] has been duly and validly executed and delivered by [the Class B Member] and constitutes [the Class B Member’s] legal, valid and binding obligation, enforceable against it in accordance with its terms (subject, however, to the effects of bankruptcy, insolvency, reorganization, moratorium and similar laws from time to time in effect relating to the rights and remedies of creditors as well as to general principles of equity whether considered at law or in equity).

(d) Neither the execution, delivery and performance by [the Class B Member] of the assignment agreement effecting the Transfer of the Class B Membership Interests from [the Class B Member] to [the Class A Member] nor the consummation of the transactions contemplated thereby will (i) conflict with or result in any breach of any provision of the organizational documents of [the Class B Member], (ii) violate or conflict with (or give rise to any right of termination, cancellation or acceleration under) any of the terms, conditions or provisions of any contract or other instrument or obligation that [the Class B Member] is a party to or by which [the Class B Member] is bound; or (iii) violate any Legal Requirement or any material license, franchise, permit or other authorization applicable to or affecting [the Class B Member] or any of its respective assets.

(e) All consents, approvals and filings required to be obtained or made by the [Class B Member] to execute, deliver and perform the assignment agreement effecting the Transfer of the Class B Membership Interests from [the Class B Member] to [the Class A Member] or the consummation by any such Person of the transactions contemplated thereby shall have been obtained or made and shall be in full force and effect as of the date hereof.

Schedule 9 - 1

EXHIBIT A

FORM OF CERTIFICATE FOR CLASS A MEMBERSHIP INTEREST

THE INTERESTS REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”) OR ANY STATE SECURITIES LAWS. ACCORDINGLY, SUCH INTERESTS MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF WITHOUT COMPLIANCE WITH SUCH ACT AND SUCH STATE SECURITIES LAWS, AND DIAMOND STATE GENERATION HOLDINGS, LLC MAY REQUIRE AN OPINION OF COUNSEL SATISFACTORY TO IT THAT NO VIOLATION OF SUCH ACT AND SUCH STATE SECURITIES LAWS WILL RESULT FROM ANY PROPOSED SALE, TRANSFER OR OTHER DISPOSITION OF SUCH INTERESTS.

THIS CERTIFICATE EVIDENCES AN INTEREST IN DIAMOND STATE GENERATION HOLDINGS, LLC AND SHALL BE A SECURITY FOR THE PURPOSES OF ARTICLE 8 OF THE UNIFORM COMMERCIAL CODE AS IN EFFECT IN THE STATE OF NEW YORK.

No. [    ] Class A Membership Interests

Diamond State Generation Holdings, LLC

a Delaware Limited Liability Company

Certificate of Interest

This certifies that [                    ] is the owner of [                    ] Class A Membership Interests in Diamond State Generation Holdings, LLC (the “Company”), which membership interests are subject to the terms of the Second Amended and Restated Limited Liability Company Agreement of Diamond State Generation Holdings, LLC, dated as of March [    ], 2013 as the same may be further amended, restated, supplemented or otherwise modified from time to time in accordance with the terms thereof (the “Limited Liability Company Agreement”).

This Certificate of Interest may be transferred by the lawful holders hereof only in accordance with the provisions of the Limited Liability Company Agreement.

Exhibit A - 1

IN WITNESS WHEREOF, the said Company has caused this Certificate of Interest to be signed by its duly authorized officer this [    ] day of [            ], 20[    ].

DIAMOND STATE GENERATION HOLDINGS, LLC
By:
	Name:
	Title:

Exhibit A - 2

[Reverse]

INSTRUMENT OF TRANSFER OF

MEMBERSHIP INTEREST IN

Diamond State Generation Holdings, LLC

FOR VALUE RECEIVED, the undersigned does hereby sell, assign and transfer unto

(print or type name of assignee)

the membership interest evidenced by and within the Certificate of Interest herewith, and does hereby irrevocably constitute and appoint                     as attorney to transfer said interest on the books of Diamond State Generation Holdings, LLC with full power of substitution in the premises.

Dated as of:
[                    ]
By:
	Name:
	Title:

Exhibit A - 3

EXHIBIT B

FORM OF CERTIFICATE FOR CLASS B MEMBERSHIP INTEREST

THE INTERESTS REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”) OR ANY STATE SECURITIES LAWS. ACCORDINGLY, SUCH INTERESTS MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF WITHOUT COMPLIANCE WITH SUCH ACT AND SUCH STATE SECURITIES LAWS, AND DIAMOND STATE GENERATION HOLDINGS, LLC MAY REQUIRE AN OPINION OF COUNSEL SATISFACTORY TO IT THAT NO VIOLATION OF SUCH ACT AND SUCH STATE SECURITIES LAWS WILL RESULT FROM ANY PROPOSED SALE, TRANSFER OR OTHER DISPOSITION OF SUCH INTERESTS.

THIS CERTIFICATE EVIDENCES AN INTEREST IN DIAMOND STATE GENERATION HOLDINGS, LLC AND SHALL BE A SECURITY FOR THE PURPOSES OF ARTICLE 8 OF THE UNIFORM COMMERCIAL CODE AS IN EFFECT IN THE STATE OF NEW YORK.

No. [    ] Class B Membership Interests

Diamond State Generation Holdings, LLC

a Delaware Limited Liability Company

Certificate of Interest

This certifies that [                    ] is the owner of [            ] Class B Membership Interests in Diamond State Generation Holdings, LLC (the “Company”), which membership interests are subject to the terms of the Second Amended and Restated Limited Liability Company Agreement of Diamond State Generation Holdings, LLC, dated as of March [    ], 2013, as the same may be further amended, restated, supplemented or otherwise modified from time to time in accordance with the terms thereof (the “Limited Liability Company Agreement”).

This Certificate of Interest may be transferred by the lawful holders hereof only in accordance with the provisions of the Limited Liability Company Agreement.

Exhibit B - 1

IN WITNESS WHEREOF, the said Company has caused this Certificate of Interest to be signed by its duly authorized officer this [    ] day of [            ], 20[    ].

DIAMOND STATE GENERATION HOLDINGS, LLC
By:
	Name:
	Title:

Exhibit B - 2

[Reverse]

INSTRUMENT OF TRANSFER OF

MEMBERSHIP INTEREST IN

Diamond State Generation Holdings, LLC

FOR VALUE RECEIVED, the undersigned does hereby sell, assign and transfer unto

(print or type name of assignee)

the membership interest evidenced by and within the Certificate of Interest herewith, and does hereby irrevocably constitute and appoint                     as attorney to transfer said interest on the books of Diamond State Generation Holdings, LLC, with full power of substitution in the premises.

Dated as of:
[                    ]
By:
	Name:
	Title:

Exhibit B - 3

EXHIBIT C

FORM OF OPERATIONS REPORT

[To be attached]

Exhibit C - 1

EXHIBIT D

FORM OF ASSIGNMENT AGREEMENT

This ASSIGNMENT OF MEMBERSHIP INTERESTS, dated as of [            ] [    ], 20[    ] (this “Assignment Agreement”), is by and between [                    ], a [                    ] (the “Assignor”) and [                    ], a [                    ] (the “Assignee”).

W I T N E S S E T H :

WHEREAS, Diamond State Generation Holdings, LLC, a Delaware limited liability company (the “Company”) was formed by virtue of its Certificate of Formation filed with the Secretary of State of the State of Delaware on [                    ], and is governed by the Second Amended and Restated Limited Liability Company Agreement of the Company, dated as of March 20, 2013, executed by the Assignor and [                    ], a [                    ], with all amendments thereto (the “LLC Agreement”);

WHEREAS, the Assignor is currently a [Class A Member][Class B Member] of the Company;

WHEREAS, pursuant to the LLC Agreement, the Assignor has agreed to transfer to Assignee and Assignee has agreed to accept from the Assignor, on the terms and subject to the conditions set forth in the LLC Agreement, [Class A] [Class B] Membership Interests of the Company;

WHEREAS, pursuant to the LLC Agreement, the parties thereto have agreed to admit the Assignee as a [Class A][Class B] Member of the Company; and

NOW, THEREFORE, in consideration of the mutual covenants and agreements and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned do hereby agree as follows:

1. Defined Terms. All capitalized terms not defined herein are used herein as defined in the LLC Agreement.

2. Instructions to Transfer to Assignee. As of the date hereof, the Assignor hereby assigns and transfers unto Assignee complete record and beneficial ownership of [    ] [Class A][Class B] Membership Interests in the Company, together with all rights and benefits associated therewith and the Assignee hereby assumes from Assignor complete record and beneficial ownership of [    ] [Class A][Class B] Membership Interests in the Company, together with all rights and benefits associated therewith. The Assignor hereby irrevocably instructs the Company to register on the books of the Company the transfer to Assignee of complete record and beneficial ownership of [     ][Class A][Class B] Membership Interests in the Company previously owned by Assignor.

Exhibit D - 1

3. Further Assurances. Subject to the terms and conditions of the LLC Agreement, at any time, or from time to time after the date hereof, the Assignor and Assignee shall, at the other’s reasonable request, and at the requesting party’s expense, execute and deliver such instruments of transfer, conveyance, assignment and assumption, in addition to this Assignment Agreement, and take such other action as either of them may reasonably request in order to evidence the transfer effected hereby.

4. Successors and Assigns. This Assignment Agreement and all of the provisions hereof shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.

5. Counterparts. This Assignment Agreement may be signed in any number of counterparts, each of which shall be deemed an original, with the same effect as if the signatures hereto were upon the same instrument. This Assignment Agreement shall become effective when each party hereto shall have received a counterpart hereof signed by the other party.

6. Governing Law. This Assignment Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of New York applicable to contracts performed in that State.

[Remainder of page intentionally left blank. Signature page to follow.]

Exhibit D - 2

IN WITNESS WHEREOF, each party hereto has caused this Assignment of Membership Interests to be signed on its behalf as of the date first written above.

[                    ]
as the Assignor
By:
	Name:
	Title:
[                    ]
as the Assignee
By:
	Name:
	Title:

Exhibit D - 3

EXHIBIT E

FORM OF EQUITY CONTRIBUTION NOTICE

[            ], 20[    ]

Diamond State Generation Holdings, LLC

1299 Orleans Drive

Sunnyvale, CA 94089-1137

Attn: Scott Reynolds

Re: Equity Contribution Notice

Ladies and Gentlemen:

Reference is made to that certain Second Amended and Restated Limited Liability Company Agreement (the “Company LLC Agreement”) for Diamond State Generation Holdings, LLC (the “Company”), dated March 20, 2013, by and between Clean Technologies II, LLC, a Delaware limited liability company (“Clean Technologies”) and [***], a Delaware corporation (“[***]” or “Class B Member”). All capitalized terms, unless otherwise defined herein, shall have the meanings ascribed to them in the Company LLC Agreement.

Pursuant to Section 4.4(a) of the Company LLC Agreement, Diamond State Generation Partners, LLC (the “Project Company”) hereby delivers to the Company with a copy to Clean Technologies and Class B Members this notice and certifies to such entities as follows as of the Equity Contribution Date:

(1) attached hereto as Exhibit [A] is a schedule which sets forth (a) the Systems expected to be Placed in Service and expected to achieve Commencement of Operations (as such term is defined in the MESPA) in the 2nd quarter following the quarter in which this notice is delivered (or sooner) for which this notice requests Capital Contribution of the balance of the amounts of the 25% Progress Payment for such System contemplated by the MESPA as provided in such schedule,¹ (b) the Systems which have been Placed in Service and have achieved Commencement of Operations for which this notice requests Capital Contribution of the amounts to be used by Project Company to make (with Note Proceeds) the 75% Progress Payment for such System contemplated by the MESPA as provided in such schedule, (c) an update of the status for all Systems for which a Capital Contribution has been requested in a prior Equity Contribution Notice (“Prior Draw Systems”, and together with the Systems referred to in the preceding clauses (a) and (b), the “Subject Systems”);

¹  Note: if contributions are only being requested pursuant to clause (a) of this paragraph (1), only paragraphs (3), (5) and (6) are required to be included.

[***] Confidential Treatment Requested

Exhibit E - 1

(2) the Managing Member’s Capital Contribution to the Company of [***] was further contributed by the Company to the Project Company and used by Project Company to incur Project costs in an amount equal to at least [***]% of the cost of all Systems;

(3) attached hereto as Exhibits [B-    ] are (a) invoices from Bloom to the Project Company for payments under the MESPA for Subject Systems for which a prior Equity Contribution Notice had requested a Capital Contribution in order to make such payment, which invoice specifies: (i) the customer location of the installation of each Subject System, (ii) the serial number or purchase order number for each Subject System, (iii) the price for each Subject System as determined pursuant to the MESPA, (iv) all amounts previously paid as a deposit on each Subject System and (v) all amounts remaining due and payable on each Subject System, (b) evidence of the payment of such invoices by the Project Company, (c) with respect to Prior Draw Systems for which the 75% Progress Payment has been made under the MESPA, a Bill of Sale for such Prior Draw Systems;

(4) the DPL Agreements have terms that in the aggregate provide to Project Company equal or more favorable economics than set forth in the Base Case Model;

(5) No material ongoing breach exists by Bloom, Clean Technologies, the Company, the Project Company, the Managing Member, DPL or PJM under the ECCA, the Project Company LLC Agreement, the MESPA, the MOMA, the Administrative Services Agreement, the Credit Documents, the DPL Agreements, the PJM Agreements, the Company LLC Agreement or any other Transaction Document or Material Contract, as applicable;

(6) the Project Company is solvent and no event of Bankruptcy has occurred with respect to the Project Company;

(7) each of the representations and warranties of Clean Technologies in Section 3.2 of the ECCA relating to the Systems funded by such Equity Contribution is (i) true and correct in all material respects as of such Equity Contribution Date except to the extent that any such representation or warranty shall have been expressly made only as of an earlier date in which case such representation or warranty was true and correct in all material respects as of such earlier date and (ii) if and to the extent such representations and warranties are qualified by the words “material,” “Material Adverse Effect” or similar qualification, true and correct, as qualified, as of the Equity Contribution Date (or such earlier date, as applicable);

(8) (i) all conditions precedent in Section 2.5 and Section 2.7 of the ECCA (other than Section 2.5(aa)) continue to be satisfied and (ii) there have been no material adverse changes from the circumstances addressed in the due diligence reports delivered to Class B Member under Sections 2.5(a) and (b) of the ECCA;

[***] Confidential Treatment Requested

Exhibit E - 2

(9) [after the first funding notice:] the prior Equity Contributions have been drawn in accordance with Section 4.3 and Section 4.4 of the Company LLC Agreement, the Project Company currently has a remaining cash balance from such funds of $[        ], such remaining funds are in the Capital Contributions Account, and the Project Company has used any funds from such Equity Contributions not retained in the Capital Contributions Account to make payments under the MESPA;

(10) the information on each invoice from Bloom to Project Company for payments under the MESPA regarding the Systems to be paid for with proceeds of the Equity Contribution include the following: (i) the location of the installation of each such System, (ii) the serial number for each such System, (iii) the price for each such System as determined pursuant to the MESPA, (iv) all amounts previously paid as a deposit on each such System and (v) all amounts remaining due and payable on each such System;

(11) all material Governmental Approvals required to be obtained by Bloom, Clean Technologies, the Company and the Project Company for the construction and installation of the Subject Systems and the sale of electric energy and sale of RECs from the Subject Systems have been obtained, except for any such Governmental Approvals not yet required to be obtained but which can reasonably be expected to be obtained when needed as specified on Exhibit [C];

(12) Commencement of Operations (as defined under the MESPA) has occurred for the Systems for which this notice requests Capital Contribution of the amounts to be used by Project Company (with Note Proceeds) to make the 75% Progress Payment for such System;

(13) with respect to the Systems for which this notice requests Capital Contribution of the amounts to be used by Project Company (with Note Proceeds) to make the 75% Progress Payment for such System, the Members have received confirmation that the Note Proceeds have either been disbursed from the Construction Escrow Account or will be available for disbursement from the Construction Escrow Account contemporaneous with Project Company’s drawdown of such Progress Contribution from the Company (as may be evidenced by, among other things, delivery to the Members of a copy of the Account Withdrawal Instruction applicable to such proceeds which has been countersigned by the Collateral Agent and delivered to the Depositary) or the Required Holders have in writing confirmed to the Members that all conditions precedent to such disbursement from the Construction Escrow Account have been satisfied or waived and the Required Holders are prepared to permit such disbursement contemporaneous with Project Company’s drawdown of such Progress Contribution from the Company; and

(14) with respect to the Systems for which this notice requests Capital Contribution of the amounts to be used by Project Company to make (with Note Proceeds) the 75% Progress Payment for such System, the Members have received written certification from

Exhibit E - 3

the Independent Engineer (as defined in the MESPA) addressed to Project Company certifying, without any qualification, that such System’s commissioning has been successfully completed, that such System is available for full commercial operation, and that Bloom has installed all BOF Work (as defined in the MESPA) necessary for the operation of that System.

In accordance with Section 4.4 of the Company LLC Agreement, the Company is hereby requested to make an Equity Contribution on [            , 20    ] in the amount of $[        ] to the Project Company and to transfer such funds to the following account of the Project Company as set forth below:

Holder Name:	Diamond State
	Generation
	Partners, LLC
Bank Name:
Account Number:
ABA Number:

Exhibit E - 4

Sincerely,

DIAMOND STATE GENERATION HOLDINGS, LLC, as Manager of Diamond State Generation Partners, LLC

By:

Name:

Title:

Cc:

Clean Technologies II, LLC

c/o Bloom Energy Corporation

1299 Orleans Drive

Sunnyvale, CA 94089-1137

Attn: Scott Reynolds

[***]

[***]

[***]

[***]

[***] Confidential Treatment Requested

Exhibit E - 5

Exhibit [    ]

[TO BE REVISED AS NEEDED FOR EACH EQUITY CONTRIBUTION]

Exhibit E - 6

EXHIBIT F

BASE CASE MODEL

[To be attached]

Exhibit F - 1

EX-10

[***] Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

Exhibit 10.13

EXECUTION VERSION

GUARANTY

GUARANTY (this “Guaranty”) dated as of March 16, 2012 by Bloom Energy Corporation, a Delaware corporation (the “Guarantor”), in favor of [***], a Delaware corporation (the “Guaranteed Party”).

PRELIMINARY STATEMENTS

A. The Guarantor desires to have the Guaranteed Party enter into certain Transaction Documents (as defined below) with Clean Technologies II, LLC, a Delaware limited liability company (“Clean Technologies II”), which is a subsidiary of the Guarantor.

B. The Guaranteed Party is willing to enter into the Transaction Documents with Clean Technologies II only on the condition, among others, that Clean Technologies II’s payment obligations under such Transaction Documents are guaranteed by the Guarantor, on the terms set forth in this Guaranty.

NOW, THEREFORE, in consideration of the premises and in order to induce the Guaranteed Party to enter into the Transaction Documents, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Guarantor hereby agrees as follows:

1. Definitions.

1.1 Defined Terms. As used in this Guaranty, the capitalized terms defined in the preamble, preliminary statements and other sections of this Guaranty shall have the respective meanings specified therein; capitalized terms not defined in this Guaranty shall have the meanings given to such terms in the Equity Capital Contribution Agreement, dated as of March 16, 2012 (the “Contribution Agreement”), among the Guaranteed Party, Clean Technologies II, Diamond State Generation Holdings, LLC and Diamond State Generation Partners, LLC, and the following terms shall have the following meanings:

“Obligations” shall mean, without duplication, (i) the due and punctual payment of all amounts payable by Clean Technologies II pursuant to the Transaction Documents, including, without limitation, (A) any Investor Indemnified Costs as and when due in accordance with the Contribution Agreement or the Amended and Restated Limited Liability Company Agreement of Diamond State Generation Holdings, LLC to be entered into between the Guaranteed Party and Clean Technologies II (the “Company LLC Agreement”), as the case may be, (B) all Capital Contributions owed by Clean Technologies II, and (C) all amounts payable by Clean Technologies II as Recapture Damages as a result of a Class A Recapture Event, (ii) to the extent the Administrator is an Affiliate of the Guarantor, the due and punctual payment by such Affiliate of all amounts payable by such Affiliate as Administrator under the Administrative Services Agreement, and (iii) the payment of all other payment obligations of Clean Technologies II to the Guaranteed Party, whether direct or indirect, absolute or contingent, due or to become due, which may arise under or in connection with the Transaction Documents (including, without limitation, interest or other charges as would have accrued on any portion of the payment obligations but for the commencement of any bankruptcy or insolvency proceedings, it being the intention of the Parties that the Obligations that are guaranteed by the Guarantor pursuant to this Guaranty should be determined without regard to any rule of law or order that may relieve Clean Technologies II of any portion of such Obligations).

[***] Confidential Treatment Requested

“Transaction Documents” shall mean (i) the Contribution Agreement, (ii) the Company LLC Agreement, and (iii) to the extent the Administrator thereunder is an Affiliate of the Guarantor, the Administrative Services Agreement.

1.2 Terms Generally. The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include,” “includes” and “including” shall be deemed to be modified by the phrase “without limitation”. The word “will” shall be construed to have the same meaning and effect as the word “shall”. Unless the context requires otherwise (a) any definition of or reference to any agreement, instrument of other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified in accordance with the provisions hereof and thereof; (b) any reference herein to any person shall be construed to include such person’s successors and permitted assigns; (c) the words “herein,” “hereof” and “hereunder,” and words of similar import, shall be construed to refer to this Guaranty in its entirety and not to any particular provision of this Guaranty; and (d) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties. Article and section headings used herein are for convenience of reference only, are not part of this Guaranty and shall not affect the construction of, or be taken into consideration in interpreting, this Guaranty.

2. Guaranty.

2.1 Irrevocable Guaranty.

(a) The Guarantor hereby unconditionally and irrevocably guarantees to the Guaranteed Party and each of its successors, permitted indorsees, permitted transferees and permitted assigns that all monetary Obligations will be promptly paid in full, in Dollars, when due in accordance with the provisions of the Transaction Documents. If for any reason any sums stated in the Transaction Documents to be payable by Clean Technologies II, or any part thereof, shall not be paid promptly when due, then in each such instance upon written demand of payment made by the Guaranteed Party to the Guarantor, the Guarantor shall pay the same to or for the benefit of the Guaranteed Party and in accordance with the provisions of the Transaction Documents.

(b) Whether or not legal action is instituted, the Guarantor agrees to reimburse the Guaranteed Party, upon written demand, for all reasonable attorneys’ fees and disbursements and all other reasonable costs and expenses incurred by the Guaranteed Party in successfully enforcing its rights under this Guaranty. Notwithstanding the foregoing, the Guarantor shall have no obligation to pay any such costs or expenses if, in any action or proceeding brought by the Guaranteed Party giving rise to a demand for payment of such costs or expenses, it is finally adjudicated by a court of competent jurisdiction that the Guarantor is not liable to make any payment under Section 2.1(a) of this Guaranty.

2

Notwithstanding anything to the contrary in this Section 2.1, the Guarantor’s liability in respect of any of the Obligations shall not exceed the liability of Clean Technologies II with respect to such Obligations under the Transaction Documents; provided, however, that such cap on liability shall not apply to reasonable costs, expenses and fees (including reasonable legal fees and disbursements) in excess of such maximum liability incurred by the Guaranteed Party in connection with enforcing this Guaranty.

2.2 No Subrogation. The Guarantor will not exercise any rights that it may acquire by way of subrogation under this Guaranty, by any payment made hereunder or otherwise, until all of the Obligations shall have been indefeasibly paid in full. If any amount shall be paid to the Guarantor on account of such subrogation rights at any time when all of the Obligations shall not have been paid in full, such amount shall be held in trust for the benefit of the Guaranteed Party and shall forthwith be paid to the Guaranteed Party to be credited and applied to such Obligations, whether matured or unmatured, in accordance with the terms of the applicable Transaction Document. If (a) the Guarantor shall make payment to the Guaranteed Party of all or any part of the Obligations and (b) all of the Obligations shall be indefeasibly paid in full, the Guaranteed Party will, at the Guarantor’s request and expense, execute and deliver to the Guarantor appropriate documents, without recourse and without representation or warranty, necessary to evidence the transfer by subrogation to the Guarantor of an interest in the Obligations resulting from such payment by the Guarantor.

2.3 No Effect on Guaranty. The obligations of the Guarantor under this Guaranty shall not be altered, limited, impaired or otherwise affected by:

(a) any rescission of any demand for payment of any of the Obligations or any failure by the Guaranteed Party to make any such demand on Clean Technologies II or any other guarantor or to collect any payments from Clean Technologies II or any other guarantor or any release of Clean Technologies II or any other guarantor;

(b) any renewal, extension, modification, amendment, acceleration, compromise, waiver, indulgence, rescission, discharge, surrender or release, in whole or in part, or any assignment or transfer, of any of the Transaction Documents or the Obligations or any other instrument or agreement evidencing, relating to, securing or guaranteeing any of the Obligations, or the liability of any party to any of the foregoing or for any part thereof;

(c) the validity, regularity or enforceability of any of the Obligations or of the Transaction Documents or any other instrument or agreement evidencing, relating to, securing or guaranteeing any of the Obligations at any time or from time to time held by the Guaranteed Party;

(d) any change, whether direct or indirect, in the Guarantor’s relationship to Clean Technologies II, including any such change by reason of any merger or consolidation or any sale, transfer, issuance, spin-off, distribution or other disposition of any stock, equity interest or other security of Clean Technologies II, the Guarantor or any other entity;

(e) any act or omission of the Guaranteed Party relating in any way to the Obligations or to Clean Technologies II, including any failure to bring an action against any party liable on the Obligations, or any party liable on any guaranty of the Obligations, or to apply any funds of any such party held by the Guaranteed Party;

3

(f) any proceeding, voluntary or involuntary, involving bankruptcy, insolvency, receivership, reorganization, liquidation or arrangement of Clean Technologies II or any other guarantor or any defense which Clean Technologies II or any other guarantor may have by reason of the order, decree or decision of any court or administrative body resulting from any such proceeding; and

(g) any other act or omission that may or might in any manner or to any extent vary the risk of the Guarantor or that may or might otherwise operate as a discharge of the Guarantor as a matter of law or equity, other than (i) the indefeasible payment in full in Dollars of all the Obligations, and (ii) as set forth in the next sentence.

Notwithstanding the foregoing, the Guarantor shall be entitled to assert any and all defenses which Clean Technologies II may have to the payment of any of the Obligations, other than defenses based upon (1) lack of authority, capacity, legal right or power of Clean Technologies II to enter into and/or perform its obligations under the Transaction Documents or (2) any insolvency, bankruptcy, reorganization, arrangement, composition, liquidation, dissolution or similar proceeding with respect to Clean Technologies II.

2.4 Continuing Guaranty; Termination. This Guaranty shall be construed as a continuing, absolute and unconditional guaranty of payment when due, and not of collection only, and the obligations of the Guarantor hereunder shall not be conditioned or contingent upon the pursuit by the Guaranteed Party at any time of any right or remedy against Clean Technologies II or against any other person which may be or become liable in respect of all or any part of the Obligations. This Guaranty shall remain in full force and effect until the Obligations shall have been satisfied by indefeasible payment in full, in Dollars, notwithstanding that from time to time during the term of the Transaction Documents, Clean Technologies II may be free from any Obligations.

2.5 Reinstatement of Guaranty. This Guaranty shall continue to be effective, or be reinstated, as the case may be, if at any time payment, or any part thereof, of any of the Obligations is avoided, rescinded or must otherwise be restored or returned by the Guaranteed Party to Clean Technologies II or its representative or to any other guarantor for any reason including as a result of any insolvency, bankruptcy or reorganization proceeding with respect to Clean Technologies II or the Guarantor, all as though such payment had not been made.

2.6 Financial Statements. To the extent not publicly available, the Guarantor shall deliver or cause to be delivered to the Guaranteed Party:

(a) As and when available, and in any event within sixty (60) calendar days after the end of each fiscal quarter of any fiscal year of the Guarantor, complete unaudited financial statements of the Guarantor for such fiscal quarter, including the balance sheet of the Guarantor as of the end of such quarter, profit and loss statements for the Guarantor for such quarter, and a statement of cash flows for Guarantor for such quarter, each of which shall be prepared in accordance with GAAP, subject to normal recurring year-end audit adjustments and the absence of footnotes; and

4

(b) As and when available and in any event by the following April 30 after the end of the fiscal year of the Guarantor, consolidated financial statements with respect to such fiscal year for the Guarantor that are audited and certified by an Accounting Firm, including the balance sheet showing the Guarantor’s financial position as of the end of such fiscal year, profit and loss statements for the Guarantor for such fiscal year, a statement of cash flows for the Guarantor for such fiscal year and related footnotes, prepared in accordance with GAAP.

2.7 Waivers.

(a) Without limiting the generality of any other waiver or other provision set forth in this Guaranty, Guarantor hereby waives all benefits and defenses that are or may become available to Guarantor by reason of California Civil Code Sections 2787 to 2855, inclusive, Section 2899 or Section 3433. Any references to certain sections of the California Civil Code or the California Code of Civil Procedure are included in this Guaranty solely out of an abundance of caution and shall not be construed to mean that any of the referenced provisions of California law are in any way applicable to this Guaranty.

(b) Without limiting the generality of any other waiver or other provision set forth in this Guaranty, Guarantor waives all rights and defenses that Guarantor may have if all or part of Guarantor’s obligations are secured by real property. This means, among other things:

(i) Guaranteed Party may collect from Guarantor without first foreclosing on any real or personal property collateral pledged by Guarantor, Clean Technologies II or any other guarantor.

(ii) If Guaranteed Party forecloses on any real property collateral pledged by Guarantor, Clean Technologies II or any other guarantor:

(A) The amount of Guarantor’s obligations or any obligations of Guarantor in respect thereof may be reduced only by the price for which that collateral is sold at the foreclosure sale, even if the collateral is worth more than the sale price.

(B) Guaranteed Party may collect from Guarantor even if Guaranteed Party, by foreclosing on the real property collateral, has destroyed any right Guarantor may have to collect from Clean Technologies or any other guarantor.

(c) This is an unconditional and irrevocable waiver of any rights and defenses Guarantor may have if all or part of Guarantor’s obligations are secured by real property. These rights and defenses include, but are not limited to, any rights or defenses based upon Section 580a, 580b, 580d, or 726 of the California Code of Civil Procedure.

(d) Without limiting the generality of any other waiver or other provision set forth in this Guaranty, Guarantor waives all rights and defenses arising out of an election of remedies by Guaranteed Party, even though that election of remedies, such as a nonjudicial foreclosure with respect to security for Guarantor’s obligations, has destroyed Guarantor’s rights of subrogation

5

and reimbursement against Guaranteed Party by the operation of Section 580d of the California Code of Civil Procedure or otherwise, including any other statutory or decisional law of any applicable jurisdiction.

3. Representations and Warranties of the Guarantor. The Guarantor hereby represents and warrants to the Guaranteed Party, as follows:

(a) The Guarantor is a corporation, validly existing and in good standing under laws of the State of Delaware.

(b) The Guarantor has full power, authority and legal right to execute and deliver this Guaranty and to perform its obligations hereunder and under the Transaction Documents to which it is a party.

(c) The execution, delivery and performance of this Guaranty have been duly authorized by all necessary corporate action on the part of the Guarantor.

(d) This Guaranty has been duly executed and delivered by the Guarantor and constitutes the legal, valid and binding obligation of the Guarantor, enforceable against it in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency or other similar laws affecting creditors’ rights generally or by general principles of equity.

(e) All consents, authorizations, approvals and clearances (including, without limitation, any necessary exchange control approval) and notifications, reports and registrations requisite for its due execution, delivery and performance of this Guaranty have been obtained from or, as the case may be, filed with the relevant governmental authorities having jurisdiction and remain in full force and effect and all conditions thereof have been duly complied with and no other action by, and no notice to or filing with, any governmental authority having jurisdiction is required for such execution, delivery or performance.

(f) The execution and delivery by the Guarantor of this Guaranty do not and the performance by Guarantor of its obligations hereunder will not, (i) violate or require any filing or notice of any Legal Requirement applicable to Guarantor, (ii) conflict with or cause a breach of any provision in the certificate of incorporation, bylaws or other organizational document of Guarantor, or (iii) cause a breach of, constitute a default under, cause the acceleration of, create in any party the right to accelerate, terminate, modify or cancel, or require any authorization, consent, waiver or approval under any contract, license, instrument, decree, judgment or other arrangement to which Guarantor is a party or under which it is bound or to which any of its assets are subject (or result in the imposition of a Lien, other than Permitted Liens, upon any such assets) except (in the case of this clause (iii)) for any that would not reasonably be expected to have a material adverse effect on Guarantor; and

(g) Guarantor owns of record and beneficially 100% of the membership interests of Clean Technologies II.

4. Election of Remedies. Each and every right, power and remedy herein given to the Guaranteed Party, or otherwise existing, shall be cumulative and not exclusive, and be in addition to all other rights, powers and remedies now or hereafter granted or otherwise existing.

6

Each and every right, power and remedy whether specifically herein given or otherwise existing may be exercised, from time to time and as often and in such order as may be deemed expedient by the Guaranteed Party.

5. Effect of Delay or Omission to Pursue Remedy. No single or partial waiver by the Guaranteed Party of any right, power or remedy, or delay or omission by the Guaranteed Party in the exercise of any right, power or remedy which it may have shall impair any such right, power or remedy or operate as a waiver thereof or of any other right, power or remedy then or thereafter existing. Any waiver given by the Guaranteed Party of any right, power or remedy in any one instance shall only be effective in that specific instance and only for the purpose for which given, and will not be construed as a waiver of any right, power or remedy on any future occasion.

6. Guarantor’s Waivers. The Guarantor waives any and all notice of the creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by the Guaranteed Party upon this Guaranty or acceptance of this Guaranty. The Obligations, and any of them, shall conclusively be deemed to have been created, contracted, incurred, renewed, extended, amended or waived in reliance upon this Guaranty, and all dealings between the Guarantor and the Guaranteed Party shall likewise be conclusively presumed to have been had or consummated in reliance upon this Guaranty. The Guarantor waives presentment, demand (other than demand delivered pursuant to Section 2.1(a) hereof), notice, and protest of all instruments included in or evidencing any of the Obligations and all other demands (other than demand delivered pursuant to Section 2.1(a) hereof) and notices in connection with the delivery, acceptance, performance, default or enforcement of any such instrument or this Guaranty.

7. Amendment. This Guaranty may not be modified, amended, terminated or revoked, in whole or in part, except by an agreement in writing signed by the Guaranteed Party and the Guarantor. No waiver of any term, covenant or provision of this Guaranty, or consent given hereunder, shall be effective unless given in writing by the Guaranteed Party.

8. Notices. All notices and other communications required or permitted hereunder shall be in writing and shall be deemed to have been sufficiently given to any party hereto if personally delivered or if sent by telecopy, or by registered or certified mail, return receipt requested, or by recognized courier service, postage or other charges prepaid addressed as follows:

(a) If to the Guarantor:

Bloom Energy Corporation

1299 Orleans Drive

Sunnyvale, CA 94089

Attention: Chief Financial Officer

Tel: (408) 543-1550

(b) If to Guaranteed Party:

[***]

[***]

[***]

[***]

[***]

[***]

[***] Confidential Treatment Requested

7

or to such other address as may be specified from time to time by the Guarantor or the Guaranteed Party in a notice to the other party given as herein provided. Such notice or communication will be deemed to have been given as of the date so personally delivered, telecopied, mailed or sent by courier.

9. Successors and Assigns. This Guaranty shall be binding upon and shall inure to the benefit of the Guarantor and the Guaranteed Party and their respective successors and permitted assigns. The Guaranteed Party may assign this Guaranty without the prior written consent of the Guarantor in connection with a Transfer of a Class B Membership Interest to a Person to whom a Transfer of the Class B Membership Interest is permitted pursuant to the Company LLC Agreement. Any other assignment of this Guaranty by the Guaranteed Party without the prior written consent of the Guarantor shall be void ab initio. The Guarantor may not assign this Guaranty without the prior written consent of the Guaranteed Party. Any assignment by the Guarantor without the prior written consent of the Guaranteed Party shall be void ab initio and shall have no effect on the Guaranteed Party’s rights against the Guarantor hereunder. Upon an assignment by the Guarantor that complies with this Section 9, the Guarantor shall be released from its obligations under this Guaranty, in each case solely to the extent those obligations are assumed under this Guaranty or guaranteed under a replacement guaranty.

10. CONSENT TO JURISDICTION. ALL LEGAL ACTIONS OR PROCEEDINGS BROUGHT AGAINST THE GUARANTOR WITH RESPECT TO THIS GUARANTY SHALL BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN THE COUNTY OF NEW YORK, STATE OF NEW YORK, AND BY EXECUTION AND DELIVERY OF THIS GUARANTY THE GUARANTOR ACCEPTS FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES, THE EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS, AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION WITH THIS GUARANTY. THE GUARANTOR HEREBY EXPRESSLY AND IRREVOCABLY WAIVES ANY CLAIM OR DEFENSE IN ANY SUCH ACTION OR PROCEEDING BASED ON ANY ALLEGED LACK OF PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS OR ANY SIMILAR BASIS. THE GUARANTOR FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF ANY COMPLAINT, SUMMONS, NOTICE OR OTHER PROCESS RELATING TO ANY LEGAL ACTION OR PROCEEDING BY DELIVERY THEREOF TO IT BY HAND OR BY MAIL TO THE ADDRESS SET FORTH IN SECTION 8 HEREOF. NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE GUARANTEED PARTY TO BRING PROCEEDINGS AGAINST THE GUARANTOR IN THE COURTS OF ANY OTHER JURISDICTION OR TO SERVE PROCESS IN ANY MANNER PERMITTED BY LAW.

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11. GOVERNING LAW. THIS GUARANTY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS PERFORMED IN THAT STATE WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAW (OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW).

12. WAIVER OF JURY TRIAL. THE GUARANTOR HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT OR COUNTERCLAIM ARISING IN CONNECTION WITH THIS GUARANTY.

13. Severability. If any provision hereof or of any of the instruments evidencing part or all of the Obligations is invalid or unenforceable in any jurisdiction, the other provisions hereof or of such instruments shall remain in full force and effect in such jurisdiction and the remaining provisions hereof shall be liberally construed in favor of the Guaranteed Party in order to carry out the provisions hereof. The invalidity or unenforceability of any provision of this Guaranty in any jurisdiction shall not affect the validity or enforceability of any such provision in any other jurisdiction.

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IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be executed and delivered on its behalf as of the date first written above.

BLOOM ENERGY CORPORATION
By:	/s/ Martin J. Collins
	Name: MARTIN J. COLLINS
	Title: VP CORP DEV

[Signature Page to the Bloom Guaranty]

EX-10

[***] Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

Exhibit 10.14

EXECUTION VERSION

MASTER OPERATION AND MAINTENANCE AGREEMENT

by and between

DIAMOND STATE GENERATION PARTNERS, LLC

and

BLOOM ENERGY CORPORATION

dated as of April 13, 2012

TABLE OF CONTENTS

		Page
ARTICLE 1 DEFINITIONS			2
Section 1.1	Definitions		2
Section 1.2	Other Definitional Provisions		11
ARTICLE 2 SYSTEM SERVICES			12
Section 2.1	In General		12
Section 2.2	Operation and Maintenance Services		12
Section 2.3	Service Fees		13
Section 2.4	System Services Warranty		13
Section 2.5	System Service Warranty Claims		13
Section 2.6	Performance Warranty		14
Section 2.7	Efficiency Warranty		14
Section 2.8	Gas Payment Shortfall		15
Section 2.9	Exclusions		15
Section 2.10	No Duplication of Terms		16
Section 2.11	Title		16
Section 2.12	Record-Keeping Documentation		16
Section 2.13	Remote Monitoring		17
Section 2.14	Permits		17
Section 2.15	Intentionally deleted		17
Section 2.16	Performance Standards		17
Section 2.17	Rights to Deliverables		18
Section 2.18	Appointment of Service Provider		18
Section 2.19	Operating Budget		18
ARTICLE 3 TERM			18
Section 3.1	Term		18
ARTICLE 4 TERMINATION			19
Section 4.1	Default		19
Section 4.2	Termination of Warranties		20
Section 4.3	Replacement of Agreement		20
ARTICLE 5 DATA ACCESS			21
Section 5.1	Access to Data and Meters		21

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ARTICLE 6 INDEMNITY		21
Section 6.1	Indemnification of Operator by Owner	21
Section 6.2	Indemnification of Owner by Operator	21
Section 6.3	Indemnity Claims Procedure	22
Section 6.4	No Duplication of Claims	22
ARTICLE 7 LIMITATIONS ON LIABILITY		22
Section 7.1	Aggregate Limit of Liability	22
Section 7.2	No Duplication of Claims	23
ARTICLE 8 REPRESENTATIONS AND WARRANTIES		24
Section 8.1	Representations and Warranties of Owner	24
Section 8.2	Representations and Warranties of Operator	25
ARTICLE 9 MISCELLANEOUS		26
Section 9.1	Amendment and Modification	26
Section 9.2	Waiver of Compliance; Consents	26
Section 9.3	Notices	27
Section 9.4	Assignment	27
Section 9.5	Dispute Resolution; Governing Law	27
Section 9.6	Governing Law, Jurisdiction, Venue	27
Section 9.7	Counterparts	28
Section 9.8	Interpretation	28
Section 9.9	Appendices and Exhibits	28
Section 9.10	Entire Agreement	28
Section 9.11	Construction of Agreement	28
Section 9.12	Severability	29
Section 9.13	Attorneys’ Fees	29
Section 9.14	Further Assurances	29
Section 9.15	Independent Contractors	29
Section 9.16	No Contract for the Sale of Goods	29
Section 9.17	Time of Essence	29
Section 9.18	Confidentiality	29
Section 9.19	Force Majeure	31
Section 9.20	Right of Offset	31
Section 9.21	No Liens	31
Section 9.22	Insurance	31

Exhibit A	Service Fees
Exhibit B	Efficiency Bank Operation Example Calculation

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Appendix A	[Intentionally Omitted]
Appendix B	Minimum Power Product Example Calculation
Appendix C	Facilities
Appendix D	Power Performance Warranty Claim Example Calculation
Appendix E	Efficiency Warranty Claim Example Calculation
Appendix F	Gas Payment Shortfall Claim Example Calculation

iii

MASTER OPERATION AND MAINTENANCE AGREEMENT

This MASTER OPERATION AND MAINTENANCE AGREEMENT (this “Agreement”), dated as of April 13, 2012, between BLOOM ENERGY CORPORATION, a Delaware corporation (“BE” or, in its capacity as operator hereunder, “Operator”), and DIAMOND STATE GENERATION PARTNERS, LLC, a Delaware limited liability company (“Owner”) (each, a “Party”, and together, the “Parties”), covers (i) the Portfolio of on-site solid oxide fuel cell power generating systems capable of being powered by renewable fuels, having an aggregate Nameplate Capacity of up to 30 MW (each a “Bloom System”, and together the “Bloom Systems”) and (ii) the BOF installed by BE pursuant to the MESPA, in each case to the extent set forth herein.

WHEREAS, Owner is a company formed at the direction of BE for the purpose of purchasing and owning Bloom Systems for the generation of electricity and sale of electricity and capacity generated by the Bloom Systems into the PJM Grid;

WHEREAS, the customer base of Delmarva Power & Light Company (“DPL”), an investor owned utility company regulated by the Delaware Public Service Commission (“DPSC”), will be subject to a charge to be collected on behalf of Owner by DPL under the REPS Act and the Tariffs, and DPL has agreed to provide natural gas service and to serve as the collection and disbursement agent of Owner pursuant to the Tariffs and the DPL Agreements;

WHEREAS in 2011, Owner purchased from Operator pursuant to the December 30 Bill of Sale certain Bloom Systems and other parts and equipment to be incorporated into the Bloom Systems, and Owner presently owns such Bloom Systems and other parts and equipment;

WHEREAS, Operator has entered into that certain Master Energy Server Purchase Agreement dated as of the date hereof (the “MESPA”) with Owner, under the terms of which Owner will purchase additional Bloom Systems and the BOF from BE in order for Owner to provide electricity and capacity generated by the Bloom Systems into the PJM Grid;

WHEREAS, pursuant to REPS Act Section 352(16), BE will be a “Qualified Fuel Cell Provider” (“QFCP”), and pursuant to the QFCP-RC Tariff, Owner will be a “QFCP Generator” (“QFCP Generator”), and pursuant to REPS Act Section 352(17) the Facilities shall constitute a “Qualified Fuel Cell Provider Project” (“Qualified Fuel Cell Provider Project”); and

WHEREAS, Operator has agreed to provide certain operation and maintenance services to Owner subject to the conditions of this Agreement.

NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

AGREEMENT

ARTICLE 1

DEFINITIONS

Section 1.1 Definitions. As used in this Agreement, capitalized terms not otherwise defined shall have the meanings set forth below:

“Actual kWh” means the actual energy output in kWh produced by each Bloom System and aggregated together.

“Administrative Services Agreement” means the Administrative Services Agreement dated as of April 13, 2012 among BE, Owner and Diamond State Generation Holdings, LLC.

“Affiliate” of any Person means a Person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, the Person specified.

“Agreement” means this agreement.

“Annual Reports” is defined in Section 2.12.

“Base Case Model” is defined in the ECCA.

“BE” is defined in the recitals.

“Bloom System” or “Bloom Systems” is defined in the introductory paragraph hereof.

“BOF” means, for each Site, the Electrical Interconnection Facilities, the natural gas supply facilities, the water supply facilities, the data communications facilities, the foundations for the Bloom Systems, and any other ancillary facilities and equipment installed in connection with the Facility at each Site.

“BOF Work” is defined in the MESPA.

“Business Day” means a day other than a Saturday, Sunday or other day on which banks in New York, New York, or San Francisco, California, are authorized or required to close.

“Claiming Party” is defined in Section 9.19.

“Code” means the Internal Revenue Code of 1986, as amended.

“Commencement of Operations” means, with respect to any Bloom System, the completion and the performance of all of the following activities:

(a) such Bloom System has been Placed in Service;

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(b) such Bloom System (i) has been attached to the load at the Site and (ii) is performing at the Warranty Specifications (measured over a 24 hour period and not over the Look Back Period or on a Portfolio basis as referenced in the definition of Warranty Specifications; provided that for this purpose the percentage in “Minimum Power Product” shall be deemed to be 100% rather than [***]);

(c) such Bloom System has satisfied the conditions precedent for “Facility Commercial Operation Date” and the “Initial Delivery Date” (each as defined in the QFCP-RC Tariff) and Operator has performed and successfully completed all necessary acts under the Interconnection Agreements (including performance testing) and has obtained written permission from the applicable Person granting Owner permission to interconnect with the PJM Grid pursuant thereto;

(d) Operator shall have furnished a written certification from Operator addressed to Owner certifying, without any qualification, that Operator has installed such Bloom System in accordance with Performance Standards; and

(e) Operator shall have furnished a written certification from the Independent Engineer addressed to Owner certifying, without any qualification, that (i) such Bloom System’s commissioning has been successfully completed and (ii) such Bloom System has achieved commercial operation (and if such Bloom System is the first Bloom System installed at such Facility then the Independent Engineer must also certify, without qualification, that Operator has installed all BOF Work necessary for the operation of that Facility).

“Company LLC Agreement” means the Amended and Restated Limited Liability Company Agreement of Diamond State Generation Holdings, LLC, dated as of April 13, 2012, between Clean Technologies II, LLC and [***].

“Confidential Information” is defined in Section 9.18(a).

“Credit Agreement” has the meaning set forth in the ECCA.

“Credit Documents” has the meaning set forth in the ECCA.

“DDOT” means the Delaware Department of Transportation.

“DDOT Site Lease” means the Lease Agreement between DDOT and Owner dated as of July, 2011, as it may be amended to extend the term or otherwise.

“December 30 Bill of Sale” means the Bill of Sale and Agreement, effective as of December 30, 2011, between BE and Owner pursuant to which Safe Harbor Systems and Safe Harbor Equipment were sold by BE to Owner for purposes of meeting the 5% safe harbor for Grant eligibility under the Guidance.

[***] Confidential Treatment Requested

3

“Delivery Date” has the meaning provided in the MESPA.

“DPL” has the meaning provided in the recitals.

“DPL Agreements” means the service applications between Owner and DPL with respect to the REPS Act and the Tariffs, whereby DPL shall (a) serve as the agent for collection of amounts due from Owner (if any) and for disbursement of amounts due to Owner under the QFCP-RC Tariff and (b) sell to Owner natural gas under the Gas Tariff.

“DPL Site Lease” means the Lease Agreement between DPL and Owner dated as of February 10, 2012.

“DPSC” has the meaning provided in the recitals.

“ECCA” means the Equity Capital Contribution Agreement with respect to Diamond State Generation Holdings, LLC, among Clean Technologies II, LLC, Diamond State Generation Holdings, LLC, Owner and [***], dated as of March 16, 2012.

“Efficiency” means the quotient of E/F, where E = the electricity produced by the Portfolio, measured in BTUs (British Thermal Units) at a conversion rate of 3,412 BTUs per kWh, and F = the fuel consumed by the Portfolio, measured in BTUs on a Lower Heating Value basis.

“Efficiency Bank” means “banked” volumes of natural gas which the Owner is permitted to accrue in a tracking account under the QFCP-RC Tariff Section C.(5) and which are available to offset any Efficiency Warranty shortfall. An example of the operation of the Efficiency Bank is attached as Exhibit B.

“Efficiency Warranty” has the meaning provided in Section 2.7.

“Efficiency Warranty Period” has the meaning provided in Section 2.7.

“Electrical Interconnection Facilities” means the equipment and facilities required to safely and reliably interconnect a Facility to the PJM Grid or the transmission system of another Transmitting Utility in whose territory the Facility is located, as applicable, including the collection system between each Bloom System, transformers and all switching, metering, communications, control and safety equipment, including the facilities described in any applicable Interconnection Agreement.

“Energy” means three-phase, 60-cycle alternating current electric energy constituting the Actual kWh.

“Facility” means the Bloom Systems and the BOF at a Site.

“Facility Meter” means the revenue quality electricity generation meter to be located at the metering point (the proposed location of which is to be identified in the Interconnection Agreement), which Facility Meter shall register all Energy produced by a Facility and delivered to the Interconnection Point.

[***] Confidential Treatment Requested

4

“Facility Service Warranty” is defined in Section 2.4.

“Facility Services” is defined in Section 2.1.

“FERC” means the Federal Energy Regulatory Commission and any successor.

“Force Majeure Event” means any event or circumstance that (a) prevents a Party from performing its obligations under this Agreement; (b) was not foreseeable by such Party; (c) was not within the reasonable control of, or the result of the negligence of such Party; and (d) such Party is unable to reasonably mitigate, avoid or cause to be avoided with the exercise of due diligence. It shall include failure or interruption of performance due to: an act of God, civil or military authority, war, civil disturbances, terrorist activities, fire, explosions, the elements, the gas supplier’s failure to comply with gas delivery, quality or pressure requirements, the external power delivery system (a/k/a the grid) being out of the required specifications or total failure (a/k/a brownout or blackout), PJM or other electric grid curtailment, or failure of equipment not utilized by or under the control of the Party claiming the Force Majeure Event (or any Affiliate or subcontractor of such Party). Force Majeure Event does not include the lack of economic resources of a Party or Operator’s failure to design and construct the Bloom Systems and the BOF so as to meet the respective warranties hereunder.

“Gas Payment Shortfall” means the cost of natural gas, in any billing period under the QFCP-RC Tariff, for the quantity of natural gas used by the Owner that exceeds the quantity of natural gas that would have been utilized at the Target Heat Rate (as defined in the QFCP-RC Tariff) and the Efficiency Bank does not have a positive balance available to offset such excess.

“Gas Tariff” means DPL’s Service Classification “LVG-QFCP-RC” filed for gas service applicable to REPS Qualified Fuel Cell Provider Projects and approved by the DPSC in Order no. 8062 dated October 18, 2011, as adopted and supplemented by DPSC’s Findings, Opinion and Order No. 8079, dated December 1, 2011.

“Governmental Approvals” means (a) any authorizations, consents, approvals, licenses, rulings, permits, tariffs, rates, certifications, variances, orders, judgments, decrees by or with a relevant Governmental Authority and (b) any required notice to, any declaration of, or with, or any registration or filing by, or with, any relevant Governmental Authority.

“Governmental Authority” means any foreign, federal, state, local or other governmental, regulatory or administrative agency, court, commission, department, board, or other governmental subdivision, legislature, rulemaking board, court, tribunal, arbitrating body or other governmental authority.

“Grant” is defined in the Company LLC Agreement.

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“Guidance” is defined in the ECCA.

“Indemnifiable Loss” means any claim, demand, suit, loss, liability, damage, obligation, payment, cost or expense (including the cost and expense of any action, suit, proceeding, assessment, judgment, settlement or compromise relating thereto and reasonable attorneys’ fees and reasonable disbursements in connection therewith).

“Indemnified Party” is defined in Section 6.3.

“Indemnifying Party” is defined in Section 6.3.

“Independent Engineer” is defined in the MESPA.

“Interconnection Agreement” means an agreement among Owner, DPL and/or PJM regarding interconnection of the Facility to the transmission or distribution system of the Transmitting Utility.

“Interconnection Point” is defined in the QFCP-RC Tariff.

“kW” means kilowatt.

“kWh” means kilowatt-hour.

“Legal Requirement” means any law, statute, act, decree, ordinance, rule, directive (to the extent having the force of law), tariff (including the Tariffs), order, treaty, code or regulation or any interpretation of any of the foregoing, as enacted, issued or promulgated by any Governmental Authority, including all amendments, modifications, extensions, replacements or re-enactments thereof, in each case applicable to or binding upon such Person or any of its properties or to which such Person or any of its property is subject.

“Letter Agreement” means that certain Letter Agreement dated October 10, 2011 between Operator and the State of Delaware, as may be amended from time to time.

“Liens” means any lien, security interest, mortgage, hypothecation, encumbrance or other restriction on title or property interest.

“Look Back Period” means each calendar year following the Commencement of Operations for a Bloom System (or, in the case of the calendar year in which the Delivery Date for a Bloom System has occurred, the portion of such calendar year commencing on the date such Bloom System achieved Commencement of Operations), but excluding with respect to each relevant Bloom System any period during such calendar year when such Bloom System was (a) subject to a Force Majeure Event, (b) not delivering Energy to the PJM Grid because of a failure to perform by DPL under the DPL Agreements or PJM under the PJM Agreements, or (c) required to be disconnected from the PJM Grid or otherwise required not to deliver Energy to the PJM Grid as the result of a Legal Requirement or action by or a directive from the applicable electric utility or PJM with respect to such Bloom System (e.g., due to a grid event).

6

“Material Adverse Change” means a fact, event or circumstance that, alone or when taken with other events or conditions occurring or existing concurrently with such event or condition, (a) has or is reasonably expected to have a material adverse effect on the business, operations, condition (financial or otherwise), assets, liabilities, prospects, or properties of a Person; (b) has or is reasonably expected to have any material adverse effect on the validity or enforceability of this Agreement; (c) materially impairs or is reasonably expected to materially impair the ability of a Person to meet or perform its obligations under this Agreement; or (d) has or is reasonably expected to have any material adverse effect on a Person’s rights under this Agreement.

“Maximum Liability” [***].

“MESPA” is defined in the Recitals to this Agreement.

“Minimum Efficiency Level” means [***] while a Bloom System is operating at Nameplate Capacity, measured over the Efficiency Warranty Period.

“Minimum kWh” means the product of (x) the number of hours in the applicable Power Performance Warranty Period minus the number of hours for each Bloom System in the Portfolio as of the last day of the applicable Power Performance Warranty Period when each such Bloom System (i) was subject to a Force Majeure Event, (ii) was not delivering Energy to the PJM Grid because of a failure to perform by DPL under the DPL Agreements or PJM under the PJM Agreements, or (iii) was required to be disconnected from the grid or otherwise required not to deliver Energy to the PJM Grid as the result of a Legal Requirement or action by or a directive from the applicable electric utility or PJM with respect to such Bloom System (e.g., due to a grid event), and (y) the Minimum Power Product for the applicable Power Performance Warranty Period.

“Minimum Power Product” means the aggregate Nameplate Capacity of the Bloom Systems in the Portfolio in kW for the applicable Power Performance Warranty Period multiplied by (1) [***] when this term is used for the One-Month Power Performance Warranty or (2) [***] when this term is used for the One-Year Power Performance Warranty. An example of a calculation of the Minimum Power Product is set forth in Appendix B.

“MW” means megawatt.

“MWh” means megawatt-hour.

[***] Confidential Treatment Requested

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“Nameplate Capacity” means the maximum rated output of a generator, prime mover, or other electric power production equipment under specific conditions designated by the manufacturer.

“One-Month Power Performance Warranty Period” is defined in Section 2.6.

“One-Year Power Performance Warranty Period” is defined in Section 2.6.

“Operator” is defined in the introductory paragraph hereof.

“Operator Indemnitee” is defined in Section 6.1.

“Owner” is defined in the introductory paragraph hereof.

“Owner Indemnitee” is defined in Section 6.2.

“Owner’s Lender” means any Person providing senior or subordinated construction, debt or equity financing or refinancing for or in connection with the development, construction, purchase, or installation of the Facility or any part thereof, including any equity and tax investor providing financing or refinancing in connection therewith, and any trustee or agent acting on their behalf, and any Person providing interest rate protection agreements to hedge any of the foregoing debt obligations.

“Party” or “Parties” is defined in the introductory paragraph hereof.

“Performance Standards” is defined in Section 2.16.

“Permits” means all Governmental Approvals that are necessary under applicable Legal Requirements, this Agreement, or the MESPA to have been obtained at such time in light of the stage of development of the Portfolio to site, construct, test, operate, maintain, repair, lease, own or use each Facility as contemplated in this Agreement, the MESPA, or the ECCA, to sell electricity from the Portfolio or for a Party to enter into this Agreement or to consummate any transaction contemplated hereby, in each case in accordance with all applicable Legal Requirements.

“Person” means any individual, partnership, limited liability company, joint venture, corporation, trust, unincorporated organization, or governmental entity or any department or agency thereof.

“PJM” means PJM Interconnection, LLC, a regional transmission organization.

“PJM Agreements” is defined in the QFCP-RC Tariff.

“PJM Grid” means the system of transmission lines, distribution lines, and associated facilities that have been placed under PJM’s operational control.

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“Placed in Service” means, with respect to any Bloom System, the completion and performance of all of the following activities: (1) obtaining the necessary licenses and permits for the operation of such Bloom System and the sale of power generated by the Bloom System, (2) completion of critical tests necessary for the proper operation of such Bloom System, (3) synchronization of such Bloom System onto the electric distribution and transmission system of the relevant local utility and/or the PJM Grid and (4) the commencement of daily operation of such Bloom System.

“Portfolio” means, on an aggregate basis, all Bloom Systems owned by Owner that were purchased pursuant to the MESPA or the December 30 Bill of Sale and that have achieved Commencement of Operations.

“Portfolio Warranty” means the warranty provided for under Section 8.1 of the MESPA.

“Power Performance Warranty” is defined in Section 2.6.

“Power Performance Warranty Period” is defined in Section 2.6.

“Prudent Electrical Practices” means those practices, methods, equipment, specifications and standards of safety and performance, as the same may change from time to time, as are commonly used by a significant portion of the grid-tied electrical generation industry operating in the United States as good, safe and prudent engineering practices in connection with the design, construction, operation, maintenance, repair and use of electrical and other equipment, facilities and improvements of such electrical generating facility, including any applicable practices, methods, acts, guidelines, standards and criteria of FERC, PJM, and all applicable Legal Requirements.

“Purchase Order” is defined in the MESPA.

“Purchase Price” is defined in the MESPA.

“QFCP” is defined in the recitals.

“QFCP Generator” is defined in the recitals.

“QFCP-RC Tariff” means DPL’s Service Classification “QFCP-RC” for REPS Qualified Fuel Cell Provider Projects as approved by the DPSC in Order no. 8062 dated October 18, 2011, as adopted and supplemented by DPSC’s Findings, Opinion and Order No. 8079, dated December 1, 2011.

“Qualified Fuel Cell Provider Project” is defined in the recitals.

“Representatives” of a Party means such Party’s authorized representatives, including its professional and financial advisors.

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“REPS Act” means the Renewable Energy Portfolio Standards Act, as amended by S.B. 124, enacted July 10, 2011 (Title 26, Chap. 1, section 351 et seq. of the Code of the State of Delaware).

“Residual Value” means, for any Bloom System, [***]% of the Purchase Price for such Bloom System until [***], declining by [***]% (i.e. [***]) on [***]. (For example, [***]).

“Safe Harbor Equipment” means all parts and equipment to be used in Bloom Systems sold by BE to Owner pursuant to the December 30 Bill of Sale.

“Safe Harbor Systems” means all Bloom Systems sold by BE to Owner pursuant to the December 30 Bill of Sale.

“SCADA” means the supervisory control and data acquisition systems.

“Section 8.2(b) Warranty” is defined in the MESPA.

“Service Fees” is defined in Section 2.3.

“Service Provider” means an operation and maintenance contractor appointed by Operator and approved by Owner pursuant to Section 2.18.

“Service Technicians” is defined in Section 2.2(c).

“Site” means, as applicable, (a) the parcel of land leased from DPL to Owner under the DPL Site Lease and all easements appurtenant, easements in gross, license agreements and other rights running in favor of Owner which provide access to the applicable Facility, or (b) the parcel of land leased from the DDOT to Owner under the DDOT Site Lease and all easements appurtenant, easements in gross, license agreements and other rights running in favor of Owner which provide access to the applicable Facility, in each case on which BE shall install a Facility pursuant to the MESPA.

“Site Leases” means, collectively, the DPL Site Lease and the DDOT Site Lease.

“Tariffs” means the QFCP-RC Tariff and the Gas Tariff.

“Term” is defined in Section 3.1.

“Third Party Claim” means any claim, action, or proceeding made or brought by any Person who is not (a) a Party to this Agreement, (b) an Affiliate of a Party to this Agreement or (c) [***] or an Affiliate of [***] (and that is not a claim based on breach by the Indemnified Party of its obligations under this Agreement).

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“Training Materials” is defined in Section 2.17.

“Transaction Documents” means this Agreement, the Company LLC Agreement, the ECCA, the MESPA and the Administrative Services Agreement.

“Transmitting Utility” has the meaning set forth in the QFCP-RC Tariff.

“Warranty Period” means, (i) for each Bloom System, the period beginning on the day following the date that the “Warranty Period” for such Bloom System under and as defined in the MESPA has expired and ending on the twenty-first (21st) anniversary of the date of Commencement of Operations for such Bloom System and (ii) for the BOF, the period beginning on the day following the date that the Section 8.2(b) Warranty for such BOF has expired and ending on the twenty-first (21st) anniversary of such starting date.

“Warranty Specifications” means (a) that the Portfolio has (i) achieved the Minimum kWh as provided in Section 2.6 and (ii) performed at no less than the Minimum Efficiency Level as provided in Section 2.7 and (b) that Operator is in compliance with Section 2.8.

Section 1.2 Other Definitional Provisions.

(a) As used in this Agreement and in any certificate or other documents made or delivered pursuant hereto or thereto, financial and accounting terms not defined in this Agreement or in any such certificate or other document, and financial and accounting terms partly defined in this Agreement or in any such certificate or other document to the extent not defined, will have the respective meanings given to them under GAAP. To the extent that the definitions of financial and accounting terms in this Agreement or in any such certificate or other document are inconsistent with the meanings of such terms under GAAP, the definitions contained in this Agreement or in any such certificate or other document will control.

(b) The words “hereof”, “herein”, “hereunder”, and words of similar import when used in this Agreement will refer to this Agreement as a whole and not to any particular provision of this Agreement. Section references contained in this Agreement are references to Sections in this Agreement unless otherwise specified. The term “including” will mean “including without limitation”.

(c) The definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms and to the masculine as well as to the feminine and neuter genders of such terms.

(d) Any agreement, instrument or statute defined or referred to herein or in any instrument or certificate delivered in connection herewith means (unless otherwise indicated herein) such agreement, instrument or statute as from time to time amended, modified or supplemented and includes (in the case of agreements or instruments) references to all attachments thereto and instruments incorporated therein.

(e) Any references to a Person are also to its permitted successors and assigns.

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ARTICLE 2

FACILITY SERVICES

Section 2.1 In General. During the Warranty Period, Operator shall provide services to Owner so that the Portfolio meets the Warranty Specifications and so that the BOF will not cause the Portfolio to fail to perform in accordance with the Warranty Specifications, as more fully set forth in this Article 2 (such services, collectively, the “Facility Services”). The Facilities covered under this Agreement are set forth in Appendix C hereto, which may be amended from time to time by written agreement between the Parties.

Section 2.2 Operation and Maintenance Services. Operator is hereby granted the right and authority (and, to the extent necessary to carry out its functions hereunder, a limited power of attorney) and agrees, for the benefit of Owner, to operate safely and reliably the Facilities and to maintain during the Warranty Period in accordance with the terms of this Agreement each Facility in good condition and repair in accordance with the Warranty Specifications and Prudent Electrical Practices. During the Warranty Period, the specific responsibilities of Operator under this Agreement shall include the following:

(a) Facility Operations. Operator shall ensure that all Facility components are operated and maintained in a manner designed to meet the Efficiency Warranty and the Power Performance Warranty with a goal of achieving the performance levels assumed in the Base Case Model (as defined in the Company LLC Agreement).

(b) Facility Maintenance. Operator shall perform, or cause to be performed, all scheduled and unscheduled maintenance required on each Facility in order to meet the Warranty Specifications. In that regard, Operator’s responsibilities hereunder shall include, without limitation, promptly correcting any Bloom System or BOF malfunctions, either by (i) recalibrating or resetting the malfunctioning Bloom System or BOF, or (ii) repairing or replacing Bloom System or BOF components which are defective, damaged, worn or otherwise in need of replacement.

(c) Personnel. Operator shall ensure that all operations and maintenance functions contemplated by this Section are performed by technically competent and qualified personnel (the “Service Technicians”). Operator shall ensure that all Service Technicians: (i) participate in a maintenance training program and receive confirmation of having achieved the requisite level of proficiency for the tasks they are assigned to perform, and (ii) attend periodic “refresher” training programs. The Operator shall at all times retain an operations manager who shall be dedicated to the overall supervision and management of performance of its obligations under this Agreement.

(d) Spare Parts. Operator shall establish and maintain an adequate spare parts inventory, to be located at one or both Sites to serve exclusively the Facilities.

(e) Programs and Procedures. Prior to the date of the Commencement of Operations for the first Bloom System in the Portfolio, Operator shall have adopted and implemented programs and procedures intended to ensure safe and reliable operation of the Facilities.

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The rights and obligations in this Section 2.2 are without duplication of the rights and obligations of Owner and Operator as Buyer and Seller under, and as defined in, the MESPA.

Section 2.3 Service Fees.

(a) Owner shall compensate Operator for the Facility Services for each Facility, on an annual basis at the rate specified in Exhibit A hereto (the “Service Fees”). With respect to each year of such Facility’s Warranty Period, the Service Fees shall be invoiced not later than thirty (30) days prior to the end of the calendar month in which the anniversary of the date of Commencement of Operations for such Bloom System occurred, and shall be payable within thirty (30) days of invoice. Interest shall accrue daily on the Service Fees not paid when due, at the lesser of the monthly rate of one and five-tenths percent (1.5%) or the highest rate permissible by law on such unpaid balance. Operator shall be under no obligation to provide or perform services hereunder for any Bloom System whose Service Fee has not been paid in full for the then-current warranty year.

(b) In connection with Facility Services for the BOF, Operator shall provide all required labor but shall charge Owner for, and Owner shall reimburse Operator for, the cost of all required spare parts. Billing for such spare parts shall be done in the same manner as Services Fees, as set forth in Section 2.3(a).

Section 2.4 Facility Services Warranty. During the Warranty Period, Operator shall perform the services to the Bloom Systems and the BOF necessary for the Portfolio to perform to the Warranty Specifications (the “System Service Warranty”). In the event that Owner desires Operator to service the Bloom Systems and the BOF beyond the Warranty Period, the rate for such time-based services will be quoted by Operator to Owner quarterly for the following quarter, and materials will be invoiced at the retail prices for such materials.

Section 2.5 Facility Service Warranty Claims.

(a) If Owner desires to make a Facility Service Warranty claim during the Warranty Period, Owner must notify Operator of the defect or other basis for the claim in writing.

(b) In the case of a claim relating to the Power Performance Warranty for a One- Month Power Performance Period or the Efficiency Warranty, upon receipt of such notice and verification by Operator that such One-Month Power Performance Warranty or Efficiency Warranty is applicable, Operator (or its designated subcontractor) or the Service Provider (or its designated subcontractor) will promptly repair or replace, at Operator’s sole option and discretion, any Bloom System whose repair or replacement is required in order for the Portfolio to perform consistent with the Power Performance Warranty or the Efficiency Warranty, as applicable. Owner is hereby notified that refurbished parts may be used in repair or replacement,

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but any such refurbished parts will have passed the same inspections and tests performed by Operator on its new parts of the same type before such refurbished parts are used in any repair. If such repair or replacement is not possible (as determined at Operator’s sole option and discretion), Operator will refund the Purchase Price of any such Bloom System to Owner notwithstanding Section 7.1, in which case Operator shall be deemed to have taken title to such Bloom System, and such Bloom System shall be deemed to no longer constitute a portion of the Portfolio. Operator shall make such determination as promptly as practicable, but in any event within 90 days of Operator’s receipt of notice of the claim unless the specific nature of the problem requires a longer period in which to make such determination. If it is determined that a Bloom System will be removed pursuant to this Section 2.5, Operator shall at its sole cost and expense remove the Bloom System and any other ancillary equipment (including the concrete pad and any other improvements to the Site to extent required under the Site Lease) from the Site, restoring the Site to its condition before the installation, including closing all utility connections in the manner required by all applicable Legal Requirement and Site Lease.

(c) In the case of a claim relating to the Power Performance Warranty for a One-Year Power Performance Warranty Period, upon receipt of such notice and verification that such One-Year Power Performance Warranty is applicable, Operator shall make a payment to Owner in an amount to be calculated pursuant to Section 2.6; provided that the cumulative aggregate amount of Operator’s liability for all claims under this Section 2.5(c) shall not exceed [***] of the aggregate Purchase Price of all Bloom Systems in the Portfolio during the applicable period and the purchase price under the December 30 Bill of Sale (inclusive of any amounts paid or for which a pending claim has been made under the Power Performance Warranty or the Section 8.2(b) Warranty, as applicable, under the MESPA).

Section 2.6 Power Performance Warranty. During the Warranty Period, Operator shall determine (i) for each full calendar month (the “One-Month Power Performance Warranty Period”) within five (5) Business Days after the end of such month and (ii) for the most recent Look Back Period (the “One-Year Power Performance Warranty Period”, and, together with the One-Month Power Performance Warranty Period, each a “Power Performance Warranty Period”), whether the Bloom Systems in the Portfolio during such Power Performance Warranty Period have delivered to the Interconnection Point the Minimum kWh during such Power Performance Warranty Period (the “Power Performance Warranty”). If such Power Performance Warranty calculation indicates that the Actual kWh of the Bloom Systems was less than the Minimum kWh during such Power Performance Warranty Period, then Operator shall so notify Owner in writing of the basis of its determination and Owner may make a claim under Section 2.5. An example of a Power Performance Warranty calculation for purposes of a Section 2.5 claim is attached as Appendix D.

Section 2.7 Efficiency Warranty. During the Warranty Period, Operator shall determine for each full calendar month (the “Efficiency Warranty Period”) within five (5) Business Days after the end of such month whether the Portfolio has performed at the Minimum Efficiency Level (the “Efficiency Warranty”); provided that the Efficiency Bank shall be utilized to the extent necessary to meet the Efficiency Warranty. If the Minimum Efficiency Level has

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not been met during such Efficiency Warranty Period, then Operator shall so notify Owner in writing of the basis of its determination and Owner may make a claim under Section 2.5. An example of an Efficiency Warranty calculation for purposes of a Section 2.5 claim is attached as Appendix E.

Section 2.8 Gas Payment Shortfall. During the Warranty Period, Operator shall perform such services on the Bloom Systems as shall cause the Efficiency Bank to maintain a positive balance at all times. If the Efficiency Bank reaches a balance of less than zero during the Warranty Period, Operator shall reimburse Owner for any Gas Payment Shortfall that Owner incurs within ten (10) days after Owner provides notice to Operator of such shortfall amount; provided that Operator’s cumulative aggregate liability under this Section 2.8 plus any payments required to be made by Operator under Section 2.5(c) shall not exceed an amount equal to [***], less (ii) the aggregate of all amounts paid by Operator (or claimed against Operator in the case of any claims that are pending at the time of such calculation) with respect to claims under Section 2.5(c) hereunder or Sections 8.2(b) and 8.3(c) of the MESPA. An example of a Gas Payment Shortfall calculation for purposes of a Section 2.8 claim is attached as Appendix F.

Section 2.9 Exclusions. The Facility Service Warranty shall not cover any obligations on the part of Operator caused by or arising from (a) Owner’s (as opposed to Operator, Operator’s Affiliate, the Service Provider or subcontractor acting as operator under this Agreement) failure to properly protect the Bloom Systems from vandalism or other third-party’s actions or omissions, (b) Owner’s (as opposed to Operator, Operator’s Affiliate, the Service Provider or subcontractor acting as operator under this Agreement) failure to use the specified input fuel; (c) Owner’s (as opposed to Operator, Operator’s Affiliate, the Service Provider or subcontractor acting as operator under this Agreement) removal of any safety devices, (d) any conditions caused by unforeseeable movement in the environment in which the Bloom Systems are installed, (e) accidents, abuse, neglect, improper third party testing, vandalism, Force Majeure Events or acts of third parties, (f) DPL’s failure to comply with Operator’s gas delivery, quality or pressure requirements, (g) installation, operation, repair or modification of the Bloom Systems by anyone other than Operator or (h) any defect in construction materials or workmanship of the BOF or any deficiency in design of the BOF by BE, provided that the exclusions in this clause (h) shall not extend to any Portfolio Warranty claim to the extent caused by or arising from (A) any defect in construction materials or workmanship of the BOF or (B) any deficiency in design of the BOF by BE, in each case during the period while either the Section 8.2(b) Warranty or the warranty under Section 2.5(c) is in effect. OPERATOR SHALL HAVE NO OBLIGATION UNDER THE FACILITY SERVICE WARRANTY AND MAKES NO REPRESENTATION AS TO FACILITIES WHICH HAVE BEEN OPENED OR MODIFIED BY OWNER OR ANYONE OTHER THAN OPERATOR, OPERATOR’S AFFILIATE, THE SERVICE PROVIDER OR SUBCONTRACTOR, ACTING AS OPERATOR UNDER THIS AGREEMENT, ANY PERSON ACTING AS AN OPERATOR UNDER THIS AGREEMENT (OR ANY SUCCESSOR AGREEMENT TO THIS AGREEMENT) OR ANY OF SUCH PERSON’S REPRESENTATIVES.

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Section 2.10 No Duplication of Terms. Notwithstanding anything to the contrary in this Agreement, to the extent that all or any portion of the Facility Service Warranty, a Gas Payment Shortfall payment or any other warranty, guarantee or indemnification provision set forth herein is duplicative of any warranty, guarantee or indemnification coverage provided under the MESPA, the Parties acknowledge and agree that Owner shall be entitled to make only a single claim under either this Agreement or the MESPA, as applicable, and that limitations of liability set forth in each such agreement are to be calculated on an aggregate basis taking into account all claims for indemnification, warranty or otherwise (if any) made under this Agreement and the MESPA.

Section 2.11 Title. Title to all items, parts, materials and equipment supplied under or pursuant to this Agreement to Owner shall transfer to Owner upon installation or inclusion in a Facility.

Section 2.12 Record-Keeping Documentation.

(a) Operator shall ensure that operation, service and maintenance records concerning Operator’s activities hereunder are properly created and maintained at all times. Such records shall include, but not be limited to, the following:

(i) a separate “Maintenance Specification Log” for each Bloom System in a paper or electronic format (with entries made for each inspection, including any discrepancies found during such inspection), a copy of which shall be submitted, in paper or electronic format, to Owner along with the corresponding Annual Reports;

(ii) a Site service report completed in respect of each inspection, repair, replacement, service or other activity or observation made by Operator in connection with its responsibilities hereunder, detailing the nature of the problems detected and the specifics of the problem resolution and submitted to Owner within ten (10) Business Days of the date when a service technician is dispatched to the site in response to a Bloom System or BOF fault or routine inspection or service;

(iii) an annual report submitted to Owner within forty-five (45) Business Days after the end of each calendar year (“Annual Report”) containing sufficient information, detail and documentation as may be requested by Owner relating to the operating performance of the Bloom System for the preceding calendar year; and

(iv) all records and data that must be timely produced and turned over to (A) DPL pursuant the QFCP-RC Tariff (including without limitation, the Heat Rate calculations as set forth in QFCP-RC Tariff Section C., and monthly documentation of PJM Revenues as set forth in QFCP-RC Tariff Section H.) and the DPL Agreements, (B) PJM pursuant to the PJM Agreements or (C) the Owner’s Lender pursuant to the Credit Documents; and

(v) such other reports and/or documentation prepared by Operator concerning its activities hereunder as may be reasonably required of an “Operator” of a Qualified Fuel Cell Project under the REPS Act and the QFCP-RC Tariff or as requested by Owner from time to time.

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(b) All such records required to be created and maintained pursuant to Section 2.12(a) shall be kept available at the Operator’s office and made available for the Owner’s inspection upon request at all reasonable times. Any documentation prepared by Operator during the Term for the purposes of this Agreement, excluding the Training Materials, shall be directly prepared for Owner’s benefit and immediately become Owner’s property. Any such documentation shall be stored by Operator on behalf of Owner until its final delivery to Owner. Operator may retain a copy of all records related to each Facility for future analysis.

Section 2.13 Remote Monitoring. For purposes of determining when repair services are necessary, Operator shall monitor and evaluate the information gathered through remote monitoring of each Facility as well as the maintenance and inspection Site visits.

Section 2.14 Permits.

(a) Operator shall be responsible, at its sole cost and expense, for maintaining and complying with all Permits required to perform the Facility Services under this Agreement;

(b) Owner agrees to cooperate with and assist Operator in obtaining all Permits.

Section 2.15 Intentionally deleted.

Section 2.16 Performance Standards. For the purpose of this Agreement, the Operator shall perform under this Agreement in accordance and consistent with each of the following (unless the context requires otherwise): (A) permitted plans and specifications applicable to each Facility; (B) the manufacturer’s recommendations with respect to all equipment and all maintenance and operating manuals or service agreements, whenever furnished or entered into, including any subsequent amendments or replacements thereof, issued by the manufacturer, provided they are consistent with generally accepted practices in the fuel cell industry; (C) the requirements of all applicable insurance policies; (D) preserving all rights to any incentive payments, warranties, indemnities or other rights or remedies, and enforcing or assisting with the enforcement of the applicable warranties, making or assisting in making all claims with respect to all insurance policies; (E) all Legal Requirements and Permits/Governmental Approvals, (F) the PJM Agreements and the DPL Agreements; (G) any applicable provisions of the Site Leases, including any landlord rules and regulations, and (H) Prudent Electrical Practices (collectively, the “Performance Standards”); provided, however, that meeting these requirements shall not relieve Operator of its other obligations under this Agreement.

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Section 2.17 Rights to Deliverables. Owner agrees that Operator shall retain all rights, title and interest, including intellectual property rights, in any Training Materials in connection with the services performed hereunder. Operator grants to Owner the limited right to use any Training Materials which are provided under this Agreement, and Owner agrees that upon termination of this Agreement for any reason, Owner shall return all Training Materials, including any copies, to Operator. Owner will not make copies nor will it permit its employees, contractors, affiliates, or representatives to make copies of any Training Materials without Operator’s prior written consent. “Training Materials” means any and all materials, documentation, notebooks, forms, diagrams, manuals and other written materials and tangible objects, describing how to maintain the Facilities, including any corrections, improvements and enhancements thereto to the Bloom Systems which are delivered by Operator to Owner, but excluding any data and reports delivered to Owner.

Section 2.18 Appointment of Service Provider. Operator may appoint an unrelated third party, who is appropriately qualified, licensed, and financially responsible, to operate and maintain the Facilities throughout the Term (a “Service Provider”). Operator shall submit such appointment of any Service Provider to Owner for its prior written approval, which approval shall not be unreasonably withheld or delayed, and if applicable, to PJM and/or DPL. No such appointment nor the approval thereof by Owner, however, shall relieve Operator of any liability, obligation, or responsibility resulting from a breach of this Agreement.

Section 2.19 Operating Budget. Operator shall operate and maintain the Portfolio, or cause the Portfolio to be operated and maintained, within amounts for (a) any Operating Budget Category (as defined in the Credit Documents) that is applicable to the Facility Services not to exceed [***] (on a year-to-date basis) and (b) for all Operating Budget Categories (or such Operating Budget Categories applicable to the Facility Services) not to exceed [***] (on a year-to-date basis), in each case of the amounts budgeted therefor as set forth in the then-current Annual Operating Budget (as defined in the Credit Documents).

ARTICLE 3

TERM

Section 3.1 Term. The term of this Agreement (the “Term”) (a) shall commence on the first day of the Warranty Period for the first Bloom System to achieve Commencement of Operation and (b) shall, unless terminated earlier under Section 4.1 of this Agreement or unless extended by mutual agreement of the Parties, terminate on the date that is the last day of the Warranty Period for the last Bloom System to achieve Commencement of Operation.

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ARTICLE 4

TERMINATION

Section 4.1 Default.

(a) Operator Default. Any of the following shall constitute an “Operator Default”:

(i) If Operator: (a) admits in writing its inability to pay its debts generally as they become due; (b) files a petition or answer seeking reorganization or arrangement under the federal bankruptcy laws or any other applicable law or statute of the United States of America or any State, district or territory thereof; (c) makes an assignment for the benefit of creditors; (d) consents to the appointment of a receiver of the whole or any substantial part of its assets; (e) has a petition in bankruptcy filed against it, and such petition is not dismissed within ninety (90) days after the filing thereof; or if (f) a court of competent jurisdiction enters an order, judgment, or decree appointing a receiver of the whole or any substantial part of Operator’s assets, and such order, judgment or decree is not vacated or set aside or stayed within ninety (90) days from the date of entry thereof; or (g) under the provisions of any other law for the relief or aid of debtors, any court of competent jurisdiction shall assume custody or control of the whole or any substantial part of Operator’s assets and such custody or control is not terminated or stayed within ninety (90) days from the date of assumption of such custody or control;

(ii) unless due to a Force Majeure Event, the failure of Operator to perform or cause to be performed any other obligation required to be performed by Operator under this Agreement, or the failure of any representation and warranty set forth herein to be true and correct in all material respects as and when made; provided, however, that if such failure by its nature can be cured, then Operator shall have a period of thirty (30) days after receipt of written notice of such failure to cure the same and a Operator Default shall not be deemed to exist during such period; provided, further, that if Operator commences to cure such failure during such period and is diligently and in good faith attempting to effect such cure, said period shall be extended for sixty (60) additional days; or

(iii) a Force Majeure Event occurs which prevents Operator from performing its material obligations under this Agreement for a continuous period of at least one hundred eighty (180) days and Owner reasonably concludes such prevention is not reasonably likely to be remedied within a further period of one hundred eighty (180) days.

(b) Owner Default. Any of the following shall constitute an “Owner Default”:

(i) The failure of Owner to pay any amounts owing to Operator on or before the day following the date on which such amounts are due and payable under the terms of this Agreement and Owner’s failure to cure each such failure within ten (10) days after Owner receives written notice from Operator of each such failure; or

(ii) unless due to a Force Majeure Event, the failure of Owner to perform or cause to be performed any other obligation required to be performed by Owner under this Agreement, or the failure of any representation and warranty set forth herein to be true and correct in all material respects as and when made; provided, however, that if such failure by its nature can be cured, then Owner shall have a period of thirty (30) days after receipt of written notice of such failure to cure the same and an Owner Default shall not

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be deemed to exist during such period; provided, further, that if Owner commences to cure such failure during such period and is diligently and in good faith attempting to effect such cure, said period shall be extended for sixty (60) additional days.

(c) Owner’s Remedies Upon Occurrence of a Operator Default. If an Operator Default has occurred under Section 4.1(a)(i) or (a)(iii), Owner may terminate this Agreement by written notice, and assert all rights and remedies available to Owner under Legal Requirements subject to the limitations of liability set forth in Section 7.1. If an Operator Default has occurred under Section 4.1(a)(ii), Owner may terminate this Agreement only with respect to those Bloom Systems for which such Operator Default occurred [***] by written notice, and assert all rights and remedies available to Owner under Legal Requirements [***] subject to the limitations of liability set forth in Section 7.1.

(d) Operator’s Remedies Upon Owner Default.

(i) If an Owner Default has occurred under Section 4.1(b)(i) or (b)(ii), Operator may terminate this Agreement only with respect to those Bloom Systems for which such Owner Default occurred (unless such Owner Default relates to ten (10) or more Bloom Systems, in which case Operator may terminate this Agreement with respect to all Bloom Systems) by written notice, and assert all rights and remedies available to Operator under Legal Requirements (other than the termination or suspension of this Agreement in its entirety, except where ten (10) of more Bloom Systems are involved), subject to the limitations of liability set forth in Section 7.1.

(e) Preservation of Rights. Termination of this Agreement shall not affect any rights or obligations as between the Parties which may have accrued prior to such termination or which expressly or by implication are intended to survive termination whether resulting from the event giving rise to termination or otherwise.

Section 4.2 Termination of Warranties. Notwithstanding anything to the contrary in this Agreement or the MESPA, each of the Facility Service Warranty, the Efficiency Warranty, and the Power Performance Warranty shall terminate with respect to a Bloom System immediately upon termination of the Warranty Period for such Bloom System; provided that any claims under this Agreement that accrued before such termination shall survive such termination until the resolution of those claims. Operator shall be under no obligation for any Facility Service Warranty, Efficiency Warranty or Power Performance Warranty for a Bloom System during any period for which such Bloom System’s Service Fees have not been paid in full.

Section 4.3 Replacement of Agreement. Notwithstanding anything to the contrary in this Agreement and in furtherance of continuing qualification under the QFCP-RC Tariff, in the event of the early termination of this Agreement pursuant to Article 4 hereof, BE and Operator agree to use commercially reasonable efforts to cooperate with Owner to facilitate Owner

[***] Confidential Treatment Requested

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entering into a new agreement with a third party operator governing operation and maintenance services to be provided to Owner on terms substantially similar to the terms of this Agreement, so that such replacement Operator shall be deemed a QFCP.

ARTICLE 5

DATA ACCESS

Section 5.1 Access to Data and Meters. Throughout the Term, and thereafter to the extent relevant to calculations necessary for periods prior to the end of the Term and subject to any confidentiality obligation owed to any third party and/or any restrictions on the disclosure of information which may be subject to intellectual property rights restricting disclosure:

(a) Owner shall grant Operator access to all data relating to the electricity production of each Bloom System, it being understood that it is Operator’s responsibility to determine the performance of the Bloom System, and any other calculations as required under this Agreement, and that it is Owner’s responsibility to handle all accounting and invoicing activities; and

(b) Owner shall allow Operator access to all data from all Facility Meters.

Operator shall be entitled to use the foregoing data for its internal purposes and make such data available to third parties for analysis.

ARTICLE 6

INDEMNITY

Section 6.1 Indemnification of Operator by Owner. Owner shall indemnify, defend and hold harmless Operator, its officers, directors, employees, shareholders, Affiliates and agents (each, a “Operator Indemnitee”) from and against any and all Indemnifiable Losses asserted against or suffered by any Operator Indemnitee arising out of any Third Party Claims against a Operator Indemnitee to the extent arising out of or in connection with (i) Owner’s breach of its representations, warranties or covenants in this Agreement, (ii) the negligent or intentional acts or omissions of Owner or its subcontractors, agents or employees or others under Owner’s control or (iii) a breach by Owner of its obligations hereunder, provided that Owner shall have no obligation to indemnify Operator for any negligence, fraud or willful misconduct of any Operator Indemnitee or the breach by Operator of any Operator Indemnitee of its covenants and warranties under this Agreement or any other Transaction Document.

Section 6.2 Indemnification of Owner by Operator. Operator shall indemnify, defend and hold harmless Owner, its members, managers, officers, directors, employees, Affiliates and agents (each, an “Owner Indemnitee”) from and against any and all Indemnifiable Losses asserted against or suffered by any Owner Indemnitee arising out of any Third Party Claims against an Owner Indemnitee to the extent arising out of or in connection with (i) Operator’s breach of its representations, warranties or covenants in this Agreement, (ii) the negligent or intentional acts or omissions of Operator or its subcontractors, agents or employees or others under Operator’s control or (iii) a breach by Operator of its obligations hereunder; provided that

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Operator shall have no obligation to indemnify Owner for any negligence, fraud or willful misconduct of any Owner Indemnitee, the breach by Owner of its covenants and warranties under this Agreement or the inability to utilize any tax benefits (for the avoidance of doubt, the Grant is not considered a tax benefit).

Section 6.3 Indemnity Claims Procedure. If any indemnifiable claim is brought against a Party (the “Indemnified Party”), then the other Party (the “Indemnifying Party”) shall be entitled to participate in, and, unless in the opinion of counsel for the Indemnifying Party a conflict of interest between the Parties may exist with respect to such claim, assume the defense of such claim, with counsel reasonably acceptable to the Indemnifying Party. If the Indemnifying Party does not assume the defense of the Indemnified Party, or if a conflict precludes the Indemnifying Party from assuming the defense, then the Indemnifying Party shall reimburse the Indemnified Party on a monthly basis for the Indemnified Party’s defense through separate counsel of the Indemnified Party’s choice. Even if the Indemnifying Party assumes the defense of the Indemnified Party with acceptable counsel, the Indemnifying Party, at its sole option, may participate in the defense, at its own expense, with counsel of its own choice without relieving the Indemnifying Party of any of its obligations hereunder.

Section 6.4 No Duplication of Claims. Notwithstanding anything to the contrary in this Agreement, the Parties acknowledge and agree that no claiming or indemnified party shall be entitled to a double recovery under the indemnification provisions of this Agreement and the indemnification provisions of the MESPA.

ARTICLE 7

LIMITATIONS ON LIABILITY

Section 7.1 Aggregate Limit of Liability.

(a) Notwithstanding anything to the contrary in this Agreement, in no event shall a Party be liable to the other Party for an aggregate amount in excess of the Maximum Liability; provided that such limitation of liability shall not apply to any liability that is the result of (i) gross negligence, fraud or willful misconduct of a Party, (ii) a Third Party Claim, (iii) the failure to pay the Service Fees (which amount shall not be included in calculating Owner’s Maximum Liability), (iv) a claim of Owner against BE or Operator in the event of any breach, default or misrepresentation of any representation and warranty or covenant set forth in Section 8.2(e) or (v) a claim of Owner against BE or Operator under Section 2.8. Subject always to the Maximum Liability limitations set forth in the preceding sentence, except for damages specifically provided for in this Agreement or in connection with the indemnification for damages awarded to a third party under a Third Party Claim, damages hereunder are limited to direct damages, and in no event shall a Party be liable to the other Party, and the Parties hereby waive claims, for (a) indirect, punitive, special or consequential damages or loss of profits; provided, however, that the loss of profits language set forth in this Section 7.1 shall not be interpreted to exclude from Indemnifiable Losses any claim, demand, suit, loss, liability, damage, obligation, payment, cost or expense (including the cost and expense of any action, suit, proceeding, assessment, judgment, settlement or compromise relating thereto and reasonable attorneys’ fees and reasonable

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disbursements in connection therewith) that would otherwise be included in the definition of Indemnifiable Losses because they result from a reduction in the profits of Owner, Diamond State Generation Holdings, LLC, or both, and (b) losses or liabilities incurred by the officers, directors, members, managers, partners, shareholders or Affiliates of such Party (unless on behalf of Owner).

(b) Notwithstanding anything to the contrary provided herein, in no event shall Operator be liable under this Agreement (including with respect to its obligations related to the Facility Service Warranty, the Power Performance Warranty or Warranty Specification) for (i) any failure of or damage to the Bloom System or (ii) any obligations on the part of Operator (including internal rate of return or other financial metrics or any obligations to deliver power to Owner or service the Bloom System) caused by or arising from (A) Owner’s (as opposed to Operator or Operator’s Affiliate or subcontractor acting as operator under this Agreement) failure to properly protect the Bloom Systems from vandalism or other third-party’s actions or omissions, (B) Owner’s (as opposed to Operator or Operator’s Affiliate or subcontractor acting as operator under this Agreement) failure to use the specified input fuel; (C) Owner’s (as opposed to Operator or Operator’s Affiliate or subcontractor acting as operator under this Agreement) removal of any safety devices, (D) Force Majeure Events, (E) installation, operation, repair or modification of the Bloom Systems by anyone other than Operator or Operator’s authorized agents or Owner’s operator acting pursuant to a operating and maintenance agreement provided such operator is acting in accordance with Prudent Electrical Practices and information or materials supplied by Operator or its Affiliates, or (F) any defect in construction materials or workmanship of the BOF or any deficiency in design of the BOF by BE, provided that the exclusions in this clause (F) shall not extend to any warranty claim to the extent caused by or arising from (1) any defect in construction materials or workmanship of the BOF or (2) any deficiency in design of the BOF by BE, in each case during the period while the MESPA Section 8.2(b) Warranty is in effect. OPERATOR SHALL NOT BE RESPONSIBLE FOR DAMAGE TO BLOOM SYSTEMS OR THEIR COMPONENTS DUE TO THEIR OPENING OR MODIFICATION BY OWNER OR ANYONE OTHER THAN OPERATOR, OPERATOR’S AFFILIATE, THE SERVICE PROVIDER OR SUBCONTRACTOR, ACTING AS OPERATOR UNDER THIS AGREEMENT, ANY PERSON ACTING AS AN OPERATOR UNDER THIS AGREEMENT (OR ANY SUCCESSOR AGREEMENT TO THIS AGREEMENT) OR ANY OF SUCH PERSON’S REPRESENTATIVES. Except for Owner’s payment of money to Operator, and subject to Section 9.19 hereof, neither Party shall be liable under any circumstance, nor be deemed to be in breach of this Agreement, for any delay or failure in performance or interruption of service resulting from any Force Majeure Event, or any other cause or causes which are beyond such Party’s reasonable control.

Section 7.2 No Duplication of Claims. Notwithstanding anything to the contrary in this Agreement, the Parties acknowledge and agree that the limitations of liability set forth in this Agreement and the MESPA are to be calculated on an aggregate basis taking into account all claims (if any) made under this Agreement and the MESPA.

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ARTICLE 8

REPRESENTATIONS AND WARRANTIES

Section 8.1 Representations and Warranties of Owner. Owner represents and warrants to Operator as follows:

(a) Organization. Owner is a limited liability company duly formed, validly existing and in good standing under the laws of the State of Delaware and has all requisite limited liability company power and authority to own, lease, and operate its business as currently conducted.

(b) Authority. Owner has full limited liability company power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby. The execution and delivery by Owner of this Agreement and the consummation by Owner of the transactions contemplated hereby have been duly and validly authorized by all necessary limited liability company action required on the part of Owner and this Agreement has been duly and validly executed and delivered by Owner. This Agreement constitutes the legal, valid and binding agreement of Owner, enforceable against Owner in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and by general principles of equity (regardless of whether considered in a proceeding in equity or at law).

(c) Consents and Approvals; No Violation. Neither the execution, delivery and performance by Owner of this Agreement nor the consummation by Owner of the transactions contemplated hereby will (i) conflict with or result in any breach of any provision of the Certificate of Formation or the limited liability company agreement of Owner, or (ii) result in a default (or give rise to any right of termination, cancellation or acceleration) under any of the terms, conditions or provisions of any note, bond, mortgage, indenture, material agreement or other instrument or obligation to which Owner is a party or by which any of its assets are bound, except for such defaults (or rights of termination, cancellation or acceleration) as to which requisite waivers or consents have been obtained or (iii) constitute violations of any law, regulation, order, judgment or decree applicable to Owner.

(d) Legal Proceedings. There are no pending or, to Owner’s knowledge, threatened claims, disputes, governmental investigations, suits, actions (including non-judicial real or personal property foreclosure actions), arbitrations, legal, administrative or other proceedings of any nature, domestic or foreign, criminal or civil, at law or in equity, by or against or otherwise affecting Owner which challenges the enforceability of this Agreement or the ability of Owner to consummate the transactions contemplated hereby.

(e) DISCLAIMERS. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS SECTION 8.1 AND THE OTHER TRANSACTION DOCUMENTS, OWNER EXPRESSLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND OR NATURE, EXPRESS OR IMPLIED, AS TO THE TRANSACTIONS CONTEMPLATED UNDER THIS AGREEMENT.

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Section 8.2 Representations and Warranties of Operator. Operator represents and warrants to Owner as follows:

(a) Incorporation; Qualification. Operator is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware and has all requisite corporate power and authority to own, lease, and operate its business as currently conducted. Operator is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction that its business, as currently being conducted, shall require it to be so qualified, except where the failure to be so qualified would not have a material adverse effect on Operator’s ability to perform its obligations under this Agreement.

(b) Authority. Operator has full corporate power and authority to execute and deliver this Agreement and to consummate the transactions contemplated thereby. The execution and delivery by Operator of this Agreement and the consummation by Operator of the transactions contemplated thereby have been duly and validly authorized by all necessary corporate action required on the part of Operator and this Agreement have been duly and validly executed and delivered by Operator. This Agreement constitutes the legal, valid and binding agreement of Operator, enforceable against Operator in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and by general principles of equity (regardless of whether considered in a proceeding in equity or at law).

(c) Consents and Approvals; No Violation. Neither the execution, delivery and performance of this Agreement nor the consummation by Operator of the transactions contemplated thereby will (i) conflict with or result in any breach of any provision of the certificate of incorporation or bylaws of Operator, (ii) with or without the giving of notice or lapse of time or both, conflict with, result in any violation or breach of, constitute a default under, result in any right to accelerate, result in the creation of any Lien on Operator’s assets, or create any right of termination under the conditions or provisions of any note, bond, mortgage, indenture, material agreement or other instrument or obligation to which Operator is a party or by which it, or any material part of its assets may be bound, in each case that would individually or in the aggregate result in a Material Adverse Change with respect to Operator; or (iii) constitute violations of any law, regulation, order, judgment or decree applicable to Operator, which violations, individually or in the aggregate, would result in a Material Adverse Change with respect to Operator.

(d) Legal Proceedings. There are no pending or, to Operator’s knowledge, threatened claims, disputes, governmental investigations, suits, actions (including non-judicial real or personal property foreclosure actions), arbitrations, legal, administrative or other proceedings of any nature, domestic or foreign, criminal or civil, at law or in equity, by or against or otherwise affecting Operator which challenges the enforceability of this Agreement or the ability of Operator to consummate the transactions contemplated thereby.

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(e) QFCP Tariff. Operator represents and warrants to Owner that, during the Term, the Portfolio shall not fail to receive full payment and service under the Tariffs for any of the following reasons:

(i) Operator shall not remain a Qualified Fuel Cell Provider throughout the original term of the QFCP Tariff.

(ii) Operator shall take any action which causes or is likely to cause: (i) Owner not to qualify (or lose qualification) for service under the QFCP Tariff or (ii) the Portfolio not to qualify (or lose qualification) as a Qualified Fuel Cell Project.

(iii) Operator shall have not complied with any of its obligations under the Letter Agreement (including, if so required by the State of Delaware, posting the security referred to in the Letter Agreement upon or prior to the Commencement of Operation of the first Bloom System).

(f) DISCLAIMERS. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS SECTION 8.2 AND THE OTHER TRANSACTION DOCUMENTS, OPERATOR EXPRESSLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND OR NATURE, EXPRESS OR IMPLIED, AS TO THE TRANSACTIONS CONTEMPLATED UNDER THIS AGREEMENT.

ARTICLE 9

MISCELLANEOUS

Section 9.1 Amendment and Modification. This Agreement may be amended, modified or supplemented only by written agreement of Owner and Operator. To the extent that this Agreement must be modified in order to maintain service under the Tariffs, the Parties shall exercise their commercially reasonable efforts to amend the Agreement to continue such service.

Section 9.2 Waiver of Compliance; Consents. Except as otherwise provided in this Agreement, any failure of any of the Parties to comply with any obligation, covenant, agreement or condition herein may be waived by the Party entitled to the benefits thereof only by a written instrument signed by the Party granting such waiver, but any such waiver of such obligation, covenant, agreement or condition shall not operate as a waiver of, or estoppel with respect to, any subsequent failure to comply therewith.

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Section 9.3 Notices. All notices and other communications hereunder shall be in writing and shall be deemed given when received if delivered personally or by facsimile transmission with completed transmission acknowledgment, or when delivered or when delivery is refused if mailed by overnight delivery via a nationally recognized courier or registered or certified first class mail (return receipt requested), postage prepaid, to the recipient Party at its below address (or at such other address or facsimile number for a Party as shall be specified by like notice; provided; however, that notices of a change of address shall be effective only upon receipt thereof):

To Operator:	Bloom Energy Corporation
	1299 Orleans Drive
	Sunnyvale, CA 94089-1137
	Attention: Scott Reynolds
	Telephone: (408) 543-1551
	Fax: (408) 543-1501
	Email: sreynolds@bloomenergy.com

To Owner:	Diamond State Generation Partners, LLC
	c/o Bloom Energy Corporation
	1299 Orleans Drive
	Sunnyvale, CA 94089-1137
	Attention: Scott Reynolds
	Telephone: (408) 543-1551
	Fax: (408) 543-1501

Section 9.4 Assignment. This Agreement and all of the provisions hereof shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns (including by operation of law), but neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by any Party, whether by operation of law or otherwise, without the prior written consent of the other Party; provided that either Party may collaterally assign its rights under this Agreement to any party providing debt or equity financing to such Party without the consent of the other Party. Notwithstanding the foregoing sentence, Operator shall be entitled to assign its right, title and interest in and to this Agreement to an Affiliate under common ownership with Operator; provided that such assignment will not disqualify or otherwise impair either the Owner or the Portfolio from receiving service under the QFCP-RC Tariff.

Section 9.5 Dispute Resolution; Governing Law. In the event a dispute, controversy or claim arises hereunder, including any claim whether in contract, tort (including negligence), strict product liability or otherwise, the aggrieved Party will promptly provide written notification of the dispute to the other Party within ten (10) days after such dispute arises. Thereafter, a meeting shall be held promptly between the Parties, attended by representatives of the Parties with decision-making authority regarding the dispute, to attempt in good faith to negotiate a resolution of the dispute. If the Parties are not successful in resolving a dispute within twenty-one (21) days, then, subject to the limitations on remedies set forth in Section 4.1 and Article 7, either Party may pursue whatever rights it has available under this Agreement, at law or in equity.

Section 9.6 Governing Law, Jurisdiction, Venue. THIS AGREEMENT SHALL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES (OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW). THE PARTIES HEREBY IRREVOCABLY SUBMIT TO THE EXCLUSIVE JURISDICTION

27

OF ANY STATE OR FEDERAL COURT IN NEW YORK COUNTY, NEW YORK WITH RESPECT TO ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING RELATING TO A DISPUTE AND FOR ANY COUNTERCLAIM WITH RESPECT THERETO.

Section 9.7 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Signatures delivered by facsimile will be considered original signatures, and each Party shall thereafter promptly deliver original signatures to the other Party.

Section 9.8 Interpretation. The articles, section and schedule headings contained in this Agreement are solely for the purpose of reference, are not part of the agreement of the Parties and shall not in any way affect the meaning or interpretation of this Agreement.

Section 9.9 Appendices and Exhibits. Except as otherwise provided in this Agreement, all exhibits and appendices referred to herein are intended to be and hereby are specifically made a part of this Agreement.

Section 9.10 Entire Agreement.

(a) This Agreement, the MESPA and the exhibits, schedules, documents, certificates and instruments referred to herein and therein, embody the entire agreement and understanding of the Parties in respect of the transactions contemplated by this Agreement.

(b) Each Party acknowledges that, in agreeing to enter into this Agreement, it has not relied on any representation, warranty, collateral contract or other assurance (except those repeated in this Agreement and any other agreement entered into on the date of this Agreement between the Parties) made by or on behalf of any other Party at any time before the signature of this Agreement. Each Party waives all rights and remedies which, but for this clause (b), might otherwise be available to it in respect of any such representation, warranty, collateral contract or other assurance.

Section 9.11 Construction of Agreement. The terms and provisions of this Agreement represent the results of negotiations between Owner and Operator, each of which has been represented by counsel of its own choosing, and neither of which has acted under duress or compulsion, whether legal, economic or otherwise. Accordingly, the terms and provisions of this Agreement shall be interpreted and construed in accordance with their usual and customary meanings, and Owner and Operator hereby waive the application in connection with the interpretation and construction of this Agreement of any rule of law to the effect that ambiguous or conflicting terms or provisions contained in this Agreement shall be interpreted or construed against the Party whose attorney prepared the executed draft or any earlier draft of this Agreement.

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Section 9.12 Severability. If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule of law or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any Party.

Section 9.13 Attorneys’ Fees. If any action or proceeding to enforce this Agreement or any provision hereof is brought by any Party, the prevailing Party shall be entitled to recover from the non prevailing Party its attorneys’ fees and its costs and expenses of suit, including actual attorneys’ and consultants’ fees. In the event that any Party secures a judgment in any proceeding brought to enforce or interpret this Agreement, then any cost of expense incurred in enforcing or in successfully appealing from such judgment, including actual attorneys’ fees shall be paid by the Party against whom such judgment has been rendered or against whom an appeal is won, and shall be recoverable separately from and in addition to any other amount included in such judgment.

Section 9.14 Further Assurances. Each Party agrees to execute and deliver such additional documents and instruments and to perform such additional acts as may be necessary or appropriate to effectuate, carry out and perform all of the terms, provisions, and conditions of this Agreement and the transactions contemplated by this Agreement.

Section 9.15 Independent Contractors. The Parties acknowledge that, save as expressly set out in this Agreement to the contrary, each Party is entering into this Agreement as an independent contractor and nothing in this Agreement shall be interpreted or applied so as to make the relationship of any of the Parties that of partners, joint ventures or anything other than independent contractors.

Section 9.16 No Contract for the Sale of Goods. Both Parties agree that this Agreement relates predominantly to the rendition of services accompanied only by the incidental sale of parts for the Bloom Systems; and therefore, this Agreement is not subject to the Delaware Uniform Commercial Code or any other commercial code for the sale of goods. The Parties expressly disclaim, to the extent permitted under applicable law, any and all provisions of the Uniform Commercial Code of any state or other applicable law relating to the commercial sale of goods.

Section 9.17 Time of Essence. Time is of the essence with respect to all matters contained in this Agreement.

Section 9.18 Confidentiality.

(a) Confidential Information. Subject to the other terms of this Section 9.18, the Parties shall, and shall cause their Affiliates and their respective stockholders, members, Subsidiaries and Representatives to, hold confidential all information they may have or obtain concerning Operator and Owner and their respective assets, business, operations or prospects or this Agreement (the “Confidential Information”), including, but not limited to, all software,

29

documentation, financial, marketing and nonpublic PJM Grid data and other business information, all data related to the internal design and performance of the Bloom Systems and any other material or information that is either marked as confidential or disclosed under circumstances that one would reasonably expect it to be confidential. Furthermore, Owner agrees that the Bloom Systems and services performed hereunder contain Operator’s valuable trade secrets, and further, Owner agrees to maintain the secrecy of and not disclose without the express written permission of Operator any trade secrets which Owner may have received from Operator; provided, however, that Confidential Information shall not include information that (A) is or becomes generally available to the public other than as a result of a disclosure by a Party or any of its Representatives or (B) is or becomes available to a Party or any of its Representatives on a nonconfidential basis prior to its disclosure by the other Party or its Representatives.

(b) Legally Compelled Disclosure. Confidential Information may be disclosed (A) as required or requested to be disclosed by a Party or any of its Affiliates or their respective stockholders, members, subsidiaries or Representatives as a result of any applicable Legal Requirement or rule or regulation of any stock exchange, the Financial Industry Regulatory Authority, Inc. or other regulatory authority or self-regulatory authority having jurisdiction over such Party, (B) as required or requested by the IRS, the Department of Justice or the Office of the Inspector General in connection with a Grant, or tax credits relating thereto, including in connection with a request for any private letter ruling, any determination letter or any audit, or (C) as reasonably required by the DPL Agreements, the PJM Agreements or the Tariffs. If a Party becomes compelled by legal or administrative process to disclose any Confidential Information, such Party shall, to the extent permitted by Legal Requirements, provide the other Party with prompt notice so that the other Party may seek a protective order or other appropriate remedy or waive compliance with the non-disclosure provisions of this Section 9.18(b) with respect to the information required to be disclosed. If such protective order or other remedy is not obtained, or such other Party waive compliance with the non-disclosure provisions of this Section 9.18(b) with respect to the information required to be disclosed, the first Party shall furnish only that portion of such information that it is advised, by opinion of counsel, is legally required to be furnished and shall exercise reasonable efforts, at the expense of the Party whose Confidential Information is being disclosed, to obtain reliable assurance that confidential treatment will be accorded such information, including, in the case of disclosures to the IRS described in clause (B) above, to obtain reliable assurance that, to the maximum extent permitted by applicable Legal Requirements, such information will not be made available for public inspection pursuant to Section 6110 of the Code.

(c) Disclosure to Representatives. Notwithstanding the foregoing, a Party may disclose Confidential Information received by it to its actual or potential financing parties and its and their employees, consultants, legal counsel or agents who have a need to know such information; provided that such Party informs each such Person who has access to the Confidential Information of the confidential nature of such Confidential Information, the terms of this Agreement, and that such terms apply to them. The Parties shall use commercially reasonable efforts to ensure that each such Person complies with the terms of this Agreement and that any Confidential Information received by such Person is kept confidential.

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(d) Other Permitted Disclosures. Nothing herein shall be construed as prohibiting a Party from using such Confidential Information in connection with (i) any claim against another Party and (ii) any exercise by a Party of any of its rights hereunder, (iii) a financing or proposed financing by Operator or Owner or their Affiliates; (iv) a disposition or proposed disposition by Operator or any Affiliate of Operator of all or a portion of such Person’s direct or indirect equity interest in Operator and (v) a disposition or proposed disposition by any direct or indirect Affiliate of Owner of all or a portion of such Person’s equity interests in Owner; provided that, in the case of items (iii), (iv) and (v), the potential purchaser has entered into a confidentiality agreement with respect to Confidential Information on customary terms used in confidentiality agreements in connection with corporate acquisitions before any such information may be disclosed and such confidentiality agreement has been provided to the non-disclosing Party.

Section 9.19 Force Majeure. If either Party is rendered wholly or partially unable to perform any of its obligations under this Agreement by reason of a Force Majeure Event, that Party (the “Claiming Party”) will be excused from whatever performance is affected by the Force Majeure Event to the extent so affected; provided, however, that: (i) the Claiming Party, within a reasonable time after the occurrence of such Force Majeure Event gives the other Party notice describing the particulars of the occurrence; (ii) the suspension of performance shall be of no greater scope and of no longer duration than is reasonably required by the Force Majeure Event; (iii) no liability of either Party for an event that arose before the occurrence of the Force Majeure Event shall be excused as a result of the Force Majeure Event; (iv) the Claiming Party shall exercise commercially reasonable efforts to correct or cure the event or condition excusing performance and resume performance of all its obligations; and (v) when the Claiming Party is able to resume performance of its obligations under this Agreement, the Claiming Party shall promptly give the other Party notice to that effect and shall promptly resume performance.

Section 9.20 Right of Offset. Owner at its sole option is hereby authorized to setoff any amounts owed Owner under the MESPA or this Agreement, as applicable, against any amounts owed by Owner to Operator under the MESPA or this Agreement. The rights provided by this paragraph are in addition to and not in limitation of any other right or remedy (including any right to set-off, counterclaim, or otherwise withhold payment) to which a Owner may be entitled (whether by operation of law, contract or otherwise).

Section 9.21 No Liens. To the extent that Operator has actual knowledge that any of its subcontractors has placed any Lien on a Bloom System or the Site for such Bloom System, then Operator shall promptly cause such Liens to be removed or bonded over in a manner reasonably satisfactory to Owner.

Section 9.22 Insurance. At all times during the Term without cost to Owner, Operator shall maintain in force the following insurance, which insurance shall not be subject to cancellation, termination or other material adverse changes unless the insurer delivers to Owner written notice of the cancellation, termination or change at least thirty (30) days in advance of the effective date of the cancellation, termination or material adverse change:

(a) Worker’s Compensation Insurance as required by the laws of the state where Operator’s facilities are located;

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(b) Employer’s liability insurance with limits not less than One Million Dollars ($1,000,000); and

(c) Commercial General Liability Insurance, including bodily injury and property damage liability including premises operations, contractual liability endorsements, products liability and completed operations with limits not less than Five Million Dollars ($5,000,000).

Operator shall cause Owner (and such additional parties as Owner designates in writing) to be named additional insured(s), must be written as primary policy not contributing to or in excess of any policies carried by the Owner, and each contain a waiver of subrogation endorsement, in form and substance reasonably satisfactory to the Owner, in favor of the Owner.

[Signatures follow on next page]

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IN WITNESS WHEREOF, the Parties have executed this Master Operation and Maintenance Agreement as of the date first above written.

BLOOM ENERGY CORPORATION
By:	/s/ Martin Collins
	Name:
	Title:

[Signature Page to the Master Operation and Maintenance Agreement]

DIAMOND STATE GENERATION PARTNERS, LLC
By:	/s/ William E Brockenborough
Name:	William E Brockenborough
Title:	Vice President

[Signature Page to the Master Operation and Maintenance Agreement]

EXHIBIT A

to

MASTER OPERATION

AND MAINTENANCE AGREEMENT

SERVICE FEES

Exhibit A-1

MOMA

Exhibit A

Service Fees

Period	Rate Per kW (nameplate) Per Year		Equivalent Rate Per kWh
Year 1		[***]		[***]
Year 2		[***]		[***]
Year 3		[***]		[***]
Year 4		[***]		[***]
Year 5		[***]		[***]
Year 6		[***]		[***]
Year 7		[***]		[***]
Year 8		[***]		[***]
Year 9		[***]		[***]
Year 10		[***]		[***]
Year 11		[***]		[***]
Year 12		[***]		[***]
Year 13		[***]		[***]
Year 14		[***]		[***]
Year 15		[***]		[***]
Year 16		[***]		[***]
Year 17		[***]		[***]
Year 18		[***]		[***]
Year 19		[***]		[***]
Year 20		[***]		[***]
Year 21		[***]		[***]

[***] Confidential Treatment Requested

EXHIBIT B

to

MASTER OPERATION

AND MAINTENANCE AGREEMENT

EFFICIENCY BANK OPERATION EXAMPLE CALCULATION

Exhibit B-1

Efficiency Bank -MOMA            

Exhibit B

Efficiency Bank Operation Example Calculation

	2014
Assumptions
Number of active Systems		[***]
Nameplate capacity		[***]
Hours in the year		[***]
Look back period		[***]
BTUs/kWh		[***]
LHV to HHV conversion		[***]
Actual power performance		[***]	%
One-Month Efficiency analysis
One-Month Efficiency Warranty		[***]	%
Actual system efficiency		[***]	%
Maximum MMbtu		[***]
Actual MMbtu		[***]
MMbtu to be drawn from Efficiency Bank		—
MMbtu to be deposited into Efficiency Bank		[***]
Efficiency Bank beginning balance		[***]
Change		[***]
Efficiency Bank ending balance		[***]

[***] Confidential Treatment Requested

APPENDIX A

to

MASTER OPERATION

AND MAINTENANCE AGREEMENT

BLOOM SYSTEMS

[Intentionally Omitted]

Appendix A-1

APPENDIX B

to

MASTER OPERATION

AND MAINTENANCE AGREEMENT

Minimum Power Product Example Calculation

Appendix B-1

Minimum Power Product - MOMA            

MOMA

Appendix B

Sample One-Month Minimum Power Product Example Calculation

	2014
Assumptions
Number of active Systems		[***]
Nameplate capacity		[***]
One-Month Power Performance Warranty		[***]
Minimum Power Product Analysis
Minimum Power Product		[***]

[***] Confidential Treatment Requested

Minimum Power Product - MOMA            

MOMA

Appendix B

Sample One-Year Minimum Power Product Example Calculation

	2014
Assumptions
Number of active Systems		[***]
Nameplate capacity		[***]
One-Year Power Performance Warranty		[***]
One-Year Minimum Power Product Analysis
Minimum Power Product		[***]

[***] Confidential Treatment Requested

APPENDIX C

to

MASTER OPERATION

AND MAINTENANCE AGREEMENT

Facilities¹

All Bloom Systems now or hereafter purchased under the MESPA from and after the date such Bloom Systems are purchased, and including without limitation those Bloom Systems detailed in the chart below from time to time, together with the BOF installed in connection with each such Bloom System at each Site.

Serial No .	Site Location	Bloom System Capacity
	Brookside	3MW Total
IOM-5700-00076		0.2MW
PWM-5700-00416-SH
PWM-5700-00417-SH
PWM-5700-00418-SH
PWM-5700-00419-SH
PWM-5700-00420-SH
PWM-5700-00421-SH
IOM-5700-00077		0.2MW
PWM-5700-00422-SH
PWM-5700-00423-SH
PWM-5700-00424-SH
PWM-5700-00425-SH
PWM-5700-00426-SH
PWM-5700-0042 7-SH
IOM-5700-00078		0.2MW
PWM-5700-00428-SH
PWM-5700-00429-SH
PWM-5700-00430-SH

¹  Includes Safe Harbor Systems, Bloom Systems to be ordered and delivered in Q2 2012.

PWM-5700-00431-SH
PWM-5700-00432-SH
PWM-5700-00433-SH
TBD – Brookside 4		0.2MW
TBD – Brookside 5		0.2MW
TBD – Brookside 6		0.2MW
TBD – Brookside 7		0.2MW
TBD – Brookside 8		0.2MW
TBD – Brookside 9		0.2MW
TBD – Brookside 10		0.2MW
TBD – Brookside 11		0.2MW
TBD – Brookside 12		0.2MW
TBD – Brookside 13		0.2MW
TBD – Brookside 14		0.2MW
TBD – Brookside 15		0.2MW
	Red Lion	5.8MW Total
IOM-5700-00079		0.2MW
PWM-5700-00434-SH
PWM-5700-00435-SH
PWM-5700-00436-SH
PWM-5700-00437-SH
PWM-5700-00438-SH
PWM-5700-00439-SH
IOM-5700-00080		0.2MW
PWM-5700-00440-SH
PWM-5700-00441-SH
PWM-5700-00442-SH
PWM-5700-00443-SH
PWM-5700-00444-SH
PWM-5700-00445-SH
Delaware001		0.2MW
	Red Lion	2.8MW Total
Delaware002		0.2MW

2

	Red Lion	7.2MW Total
Delaware003		0.2MW
Delaware004		0.2MW
	Red Lion	11.2MW Total
Delaware005		0.2MW
Delaware006		0.2MW
Delaware007		0.2MW

3

APPENDIX D

to

OPERATION

AND MAINTENANCE AGREEMENT

Power Performance Warranty Claim Example Calculation

Appendix D-1

Performance - MOMA            

MOMA

Appendix D

Sample One-Month Power Performance Warranty Claim Example Calculation

	2014
Assumptions
Number of active Systems		[***]
Nameplate capacity		[***]
Hours in the year		[***]
Look back period		[***]
One-Month Power Performance Warranty analysis
One-Month Power Performance Warranty		[***]
Actual system output		[***]
Minimum kWh		[***]
Actual kWh		[***]
Underperformance (kWh)		[***]

[***] Confidential Treatment Requested

Performance - MOMA            

Appendix D

Sample One-Year Power Performance Warranty Claim Example Calculation

	2015
Assumptions
Number of active Systems		[***]
Nameplate capacity		[***]
Hours in the year		[***]
Look back period		[***]
Project COE - Applicable QFCP-RC Tariff disbursement rate		[***]
One-Year Power Performance Warranty analysis
One-Year Power Performance Warranty		[***]
Actual system output		[***]
Minimum kWh		[***]
Actual kWh		[***]
Underperformance (kWh)		[***]
Power Performance Warranty Payment		[***]

[***] Confidential Treatment Requested

APPENDIX E

to

OPERATION

AND MAINTENANCE AGREEMENT

Efficiency Warranty Claim Example Calculation

Appendix E-1

Efficiency - MOMA            

MOMA

Appendix E

Sample One-Month Efficiency Warranty Claim Example Calculation

	2014
Assumptions
Number of active Systems		[***]
Nameplate capacity		[***]
Hours in the year		[***]
Look back period		[***]
BTUs/kWh		[***]
LHV to HHV conversion		[***]
Actual power performance		[***]
One-Month Efficiency analysis
One-Month Efficiency Warranty		[***]
Actual system efficiency		[***]
Maximum MMbtu		[***]
Actual MMbtu		[***]
MMbtu to be drawn from Efficiency Bank		[***]
MMbtu to be deposited into Efficiency Bank		—
Efficiency Bank beginning balance		[***]
Change		[***]
Efficiency Bank ending balance		[***]

[***] Confidential Treatment Requested

APPENDIX F

to

OPERATION

AND MAINTENANCE AGREEMENT

Gas Payment Shortfall Claim Example Calculation

Appendix F-1

Gas Payment - MOMA            

Appendix F

Sample Gas Payment Shortfall Claim Example Calculation

	2015
Assumptions
Number of active Systems		[***]
Nameplate capacity		[***]
Hours in the year		[***]
Look back period		[***]
BTUs/kWh		[***]
LHV to HHV conversion		[***]
Actual power performance		[***]
Cost of gas - Price charged under Gas Tariff for relevant period		[***]
Gas Shortfall analysis
One-Month Efficiency Warranty		[***]
Actual system efficiency		[***]
Maximum MMbtu		[***]
Actual MMbtu		[***]
MMbtu to be drawn from Efficiency Bank		[***]
MMbtu to be deposited into Efficiency Bank		—
Efficiency Bank beginning balance		[***]
Change		[***]
Efficiency Bank shortfall		[***]
Gas Shortfall payment		[***]

[***] Confidential Treatment Requested

EX-10

[***] Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

Exhibit 10.15

Execution Version

EQUITY CONTRIBUTION AGREEMENT

Dated as of March 20, 2013

by and among

BLOOM ENERGY CORPORATION,

as the Contributor,

DIAMOND STATE GENERATION PARTNERS, LLC,

as the Company

and

DEUTSCHE BANK TRUST COMPANY AMERICAS,

as the Collateral Agent

TABLE OF CONTENTS

		Page
ARTICLE I. DEFINITIONS; INTERPRETATION			2
Section 1.1.	Definitions		2
Section 1.2.	Interpretation		3
ARTICLE II. EQUITY CONTRIBUTIONS			3
Section 2.1.	Equity Contributions		3
Section 2.2.	Contribution Mechanics		3
Section 2.3.	Deemed Equity Contributions		3
ARTICLE III. BANKRUPTCY			4
Section 3.1.	Bankruptcy Waiver by Contributor		4
Section 3.2.	Bankruptcy Events		4
ARTICLE IV. WAIVERS; UNCONDITIONALITY; SUBROGATION; REINSTATEMENT			4
Section 4.1.	Waiver of Defenses		4
Section 4.2.	Obligations Unconditional		6
Section 4.3.	Subrogation		6
Section 4.4.	Reinstatement		7
ARTICLE V. PURCHASED INTERESTS IN BANKRUPTCY			7
Section 5.1.	Required Purchase of Interests		7
Section 5.2.	Effect of Purchase of Purchased Interests		7
Section 5.3.	Subordinate Nature of Purchased Interests		7
Section 5.4.	No Voting Rights		8
Section 5.5.	Obligations Unconditional		8
ARTICLE VI. REPRESENTATIONS AND WARRANTIES			8
Section 6.1.	Organization; Authority; Powers		8
Section 6.2.	No Conflict		8
Section 6.3.	Enforceability		8
Section 6.4.	No Litigation		9
Section 6.5.	Equity Interests		9
Section 6.6.	Compliance with Law		9
Section 6.7.	Financial Statements		9
Section 6.8.	Adequate Information		9
Section 6.9.	Investment Company Act		9
Section 6.10.	Solvency		9
Section 6.11.	Pari Passu Obligations		9
ARTICLE VII. COVENANTS			10
Section 7.1.	Existence		10
Section 7.2.	Compliance with Laws		10
Section 7.3.	Fundamental Changes		10
Section 7.4.	Further Assurances		10
Section 7.5.	QFCP Status		10

i

ARTICLE VIII. MISCELLANEOUS		10
Section 8.1.	Notices	10
Section 8.2.	Entire Agreement	11
Section 8.3.	Severability	11
Section 8.4.	Headings	11
Section 8.5.	Governing Law	11
Section 8.6.	Jurisdiction; Consent to Service of Process	11
Section 8.7.	Amendments	12
Section 8.8.	Assignments	12
Section 8.9.	Counterparts	13
Section 8.10.	No Waiver	13
Section 8.11.	Specific Performance	13
Section 8.12.	Termination	13
Section 8.13.	Rights of Collateral Agent	14

ii

This EQUITY CONTRIBUTION AGREEMENT (this “Agreement”), dated as of March 20, 2013, is entered into by and among BLOOM ENERGY CORPORATION, a Delaware corporation (the “Contributor”), DIAMOND STATE GENERATION PARTNERS, LLC, a Delaware limited liability company (the “Company”) and DEUTSCHE BANK TRUST COMPANY AMERICAS, as the Collateral Agent under the Collateral Agency Agreement referenced below (in such capacity, together with any successor Collateral Agent appointed pursuant to the Collateral Agency Agreement, the “Collateral Agent”). Capitalized terms used in this Agreement are defined as set forth in Section 1.1.

R E C I T A L S:

WHEREAS, the Company intends to develop, construct, install, finance, own, operate and maintain a portfolio of fuel cell electricity generators with an aggregate capacity of 30 MW, to be located on one or more sites in New Castle County, Delaware;

WHEREAS, in order to finance the development, construction, installation, testing, leasing, operation and use of the Project and the acquisition of certain other assets related thereto, the Company has entered into that certain Note Purchase Agreement, dated as of March 20, 2013 (as amended, amended and restated, supplemented or otherwise modified from time to time, the “Note Purchase Agreement”) with the purchasers party thereto (together with any of their successors or assigns and including any Holder of a Note, the “Purchasers”), pursuant to which the Company will issue Notes to the Purchasers in an aggregate amount equal to [***];

WHEREAS, the Company has entered into that certain Collateral Agency Agreement, dated as of March 20, 2013 (as amended, amended and restated, supplemented or otherwise modified from time to time, the “Collateral Agency Agreement”) with the Purchasers and the Collateral Agent;

WHEREAS, the Contributor indirectly owns 100% of the Class A membership interests in Diamond State Generation Holdings, LLC (the “Pledgor”), and the Pledgor directly owns 100% of the equity interests in the Company;

WHEREAS, the Contributor has agreed to make or cause to be made an Equity Contribution as provided in the Note Purchase Agreement to the Company following the occurrence of a Rating Event and in accordance with the terms hereof; and

WHEREAS, in order to induce the Secured Parties to enter into the Credit Documents, the parties have agreed to the provisions set forth in this Agreement.

NOW, THEREFORE, in consideration of the foregoing premises and the agreements, provisions and covenants herein contained, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:

[***] Confidential Treatment Requested

A G R E E M E N T:

ARTICLE I.

DEFINITIONS; INTERPRETATION

Section 1.1. Definitions. Each capitalized term used and not otherwise defined herein (including in the introductory paragraph and recitals hereto) shall have the meaning assigned to such term (whether directly or by reference to another agreement or document) in the Note Purchase Agreement. In addition to the terms defined in the Note Purchase Agreement, the following terms used herein, including in the introductory paragraph and recitals hereto, shall have the following meanings:

“Agreement” shall have the meaning assigned to such term in the introductory paragraph of this Agreement.

“Collateral Agency Agreement” shall have the meaning assigned to such term in the recitals to this Agreement.

“Collateral Agent” shall have the meaning assigned to such term in the introductory paragraph of this Agreement.

“Company” shall have the meaning assigned to such term in the introductory paragraph of this Agreement.

“Contributor” shall have the meaning set forth in the introductory paragraph of this Agreement.

“Defaulted Payment” shall have the meaning assigned to such term in Section 5.1.

“Discharge Date” shall have the meaning set forth in the Collateral Agency Agreement.

“Equity Contribution” shall mean, without duplication, (a) a deemed (in accordance with Section 2.3) cash equity contribution by the Contributor to the Pledgor and (b) a deemed (in accordance with Section 2.3) cash equity contribution (with the cash equity contribution made under clause (a) above) by the Pledgor to the Company.

“Material Adverse Effect” shall mean a material and adverse effect on the Contributor’s ability to perform its obligations under this Agreement.

“Note Purchase Agreement” shall have the meaning assigned to such term in the recitals to this Agreement.

“Note Redemption Account” shall have the meaning assigned to such term in the Depositary Agreement.

“Pledgor” shall have the meaning assigned to such term in the recitals to this Agreement.

“Purchased Interest” shall have the meaning assigned to such term in Section 5.1.

2

“Purchase Notice” shall have the meaning assigned to such term in Section 2.1(a).

“Purchasers” shall have the meaning assigned to such term in the recitals to this Agreement.

“Required Equity Contribution” shall have the meaning assigned to such term in Section 2.1(a).

Section 1.2. Interpretation. Unless otherwise provided herein, the rules of interpretation set forth in the Note Purchase Agreement shall apply, mutatis mutandis, to this Agreement (including its introductory paragraph and recitals).

ARTICLE II.

EQUITY CONTRIBUTIONS

Section 2.1. Equity Contributions.

(a) Required Equity Contribution. If at any time prior to the Discharge Date (i) a Rating Event occurs and (ii) the Company delivers to each Holder of a Note an Offer to Repay Notice pursuant to Section 8.1.3(b) of the Note Purchase Agreement and the Company receives from any Holder of a Note a written notice under Section 8.1.3(b) of the Note Purchase Agreement accepting the Company’s Offer to Repay pursuant to Section 9.23 of the Note Purchase Agreement (a “Purchase Notice”), the Contributor shall make, or cause to be made, an Equity Contribution (the “Required Equity Contribution”), in accordance with the mechanics set forth in Section 2.2, in an amount equal to the principal amount of Notes plus accrued interest specified in the Purchase Notice.

(b) No Limitation on Voluntary Equity Contributions. Nothing herein shall be construed to prohibit or otherwise limit the Contributor or any of its Affiliates from depositing or causing to be deposited voluntary Equity Contributions at the time and in the amount elected by the Contributor in its sole discretion.

Section 2.2. Contribution Mechanics. The Contributor shall make the Required Equity Contribution by depositing an amount equal to such Required Equity Contribution in the Note Redemption Account no later than 10:00 a.m. (New York City time) on the Offer Settlement Date.

Section 2.3. Deemed Equity Contributions. Upon the deposit by the Contributor of an Equity Contribution in the Note Redemption Account pursuant to Section 2.1 and 2.2, and notwithstanding that any such amounts shall be deposited directly into the Note Redemption Account, (i) the Contributor shall be deemed to have made an equity contribution to the Pledgor in the amount of such Equity Contribution or deposited or transferred amount and (ii) the Pledgor shall be deemed to have made an equity contribution to the Company in the amount of such Equity Contribution or deposited or transferred amount.

3

ARTICLE III.

BANKRUPTCY

Section 3.1. Bankruptcy Waiver by Contributor. The Contributor hereby irrevocably waives, to the extent it may do so under applicable Governmental Rules, any protection to which it may be entitled under Sections 365(c)(1), 365(c)(2) and 365(e)(2) of the Bankruptcy Code of the United States or equivalent provisions of any other Debtor Relief Laws, or any successor provision of any Debtor Relief Law of similar import, in the event of any Bankruptcy Event with respect to the Company or Pledgor. Specifically, in the event that the trustee (or similar official) in a Bankruptcy Event with respect to the Company or Pledgor or the debtor-in-possession takes any action (including the institution of any action, suit or other proceeding for the purpose of enforcing the rights of the Company under this Agreement), the Contributor shall not assert any defense, claim or counterclaim denying liability hereunder on the basis that this Agreement is an executory contract or a “financial accommodation” that cannot be assumed, assigned or enforced or on any other theory directly or indirectly based on Section 365(c)(1), 365(c)(2) or 365(e)(2) of the Bankruptcy Code of the United States or equivalent provisions of any other Debtor Relief Laws, or any successor provision of any Debtor Relief Law of similar import. If a Bankruptcy Event with respect to the Company or Pledgor shall occur, the Contributor agrees, after the occurrence of such Bankruptcy Event, to reconfirm in writing, to the extent permitted by applicable Governmental Rules, its pre-petition waiver of any protection to which it may be entitled under Sections 365(c)(1), 365(c)(2) and 365(e)(2) of the Bankruptcy Code of the United States or equivalent provisions of any other Debtor Relief Laws, or any successor provision of any Debtor Relief Law of similar import, and, to give effect to such waiver, the Contributor consents, to the extent permitted by applicable Governmental Rules, to the assumption and enforcement of each provision of this Agreement by the debtor-in-possession or the Company’s or Pledgor’s trustee in bankruptcy, as the case may be.

Section 3.2. Bankruptcy Events. No obligation of the Contributor under this Agreement shall be altered, limited or affected by any Bankruptcy Event relating to the Company or Pledgor, or by any defense which the Company may have by reason of any order, decree or decision of any court or administrative body resulting from any such Bankruptcy Event.

ARTICLE IV.

WAIVERS; UNCONDITIONALITY; SUBROGATION; REINSTATEMENT

Section 4.1. Waiver of Defenses. The Contributor hereby unconditionally and irrevocably waives and relinquishes, to the maximum extent permitted by applicable Governmental Rules, all rights or remedies accorded by applicable Governmental Rules to sureties or guarantors and agrees not to assert or take advantage of any such right or remedies, including:

(a) any right to require any Secured Party to proceed against the Company or any other Person or to proceed against or exhaust any security held by any Secured Party at any time or to pursue any other remedy in any Secured Party’s power before proceeding against the Contributor to enforce the provisions of this Agreement;

4

(b) any defense that may arise by reason of the incapacity, lack of power or authority, death, dissolution, merger, termination or disability of the Company, Pledgor or any other Person or the failure of any Secured Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of the Company, Pledgor or any other Person;

(c) demand, presentment, protest and notice of any kind (other than any notice expressly contemplated herein or in the Note Purchase Agreement), creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of the Company, Pledgor or any Secured Party, any endorser or creditor of the foregoing or on the part of any other Person under any Credit Document;

(d) any defense based upon an election of remedies by the Secured Parties, including an election to proceed by non-judicial rather than judicial foreclosure, which destroys or otherwise impairs the subrogation rights of the Contributor, the right of the Contributor to proceed against the Company, Pledgor or another Person for reimbursement, or both;

(e) any defense based on any offset against any amounts which may be owed by any Person to the Contributor, the Company or Pledgor or for any reason whatsoever;

(f) any defense based upon any Governmental Rule which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal;

(g) any defense based on any failure to act, delay or omission whatsoever on the part of the Company, Pledgor or the Contributor or the failure by the Company, Pledgor or the Contributor to do any act or thing or to observe or perform any covenant, condition or agreement to be observed or performed by it under the Credit Documents;

(h) any defense, setoff or counterclaim which may at any time be available to or asserted by the Company, Pledgor or the Contributor against any Secured Party or any other Person under the Credit Documents based on or related to the bankruptcy or insolvency of the Company or Pledgor;

(i) any duty on the part of any Secured Party to disclose to the Contributor any facts such Secured Party may now or hereafter know about the Company or Pledgor, regardless of whether such Secured Party has reason to believe that any such facts materially increase the risk beyond that which the Contributor intends to assume, or have reason to believe that such facts are unknown to the Contributor, or have a reasonable opportunity to communicate such facts to the Contributor (the Contributor acknowledging that it is fully responsible for being and keeping informed of the financial condition of the Company and Pledgor);

(j) any defense based on any change in the time, manner or place of any payment under, or in any other term of, the Credit Documents or any other amendment, renewal, extension, acceleration, compromise or waiver of or any consent to departure from the terms of the Credit Documents (other than this Agreement);

5

(k) any defense based upon any borrowing or grant of a security interest under Section 364 of the Bankruptcy Code of the United States; and

(l) any other circumstance (including any statute of limitations) or any existence of or reliance on any representation by any Secured Party that might otherwise constitute a defense available to, or discharge of, any guarantor or surety (other than setoff against the Contributor or, subject to Section 4.4, the defense of payment of the applicable amounts).

Section 4.2. Obligations Unconditional. All rights of the Secured Parties and all obligations of the Contributor hereunder shall be absolute and unconditional irrespective of:

(a) any lack of validity, legality or enforceability of any Credit Document (other than this Agreement);

(b) the failure of any Secured Party to (i) assert any claim or demand or to enforce any right or remedy against the Company, Pledgor, the Contributor or any other Person under the provisions of the Credit Documents or otherwise or (ii) exercise any right or remedy against any Collateral;

(c) any change in the time, manner or place of payment of, or in any other term of, all or any portion of the Obligations, or any other extension or renewal of any obligation of the Company, Pledgor, the Contributor or otherwise;

(d) any reduction, limitation, impairment or termination of any of the Obligations for any reason other than the full payment in cash thereof or the occurrence of the Discharge Date, including any claim of waiver, release, surrender, alteration or compromise;

(e) any amendment to, rescission, waiver or other modification of, or any consent to departure from, any term of any Credit Document unless entered into and approved in accordance therewith;

(f) any addition, exchange, release, surrender or non-perfection of any collateral, or any amendment to or waiver or release or addition of, or consent to departure from, any other security interest held by any Secured Party; or

(g) any other circumstance which might otherwise constitute a defense available to, or a legal or equitable discharge of, the Company, Pledgor, the Contributor or any surety or guarantor (other than the defense of payment of the applicable amounts).

Section 4.3. Subrogation. Prior to the Discharge Date, the Contributor waives any claim, right or remedy which it may now have or hereafter acquire against the Company that arises hereunder and/or from the performance by the Contributor of its obligations hereunder, whether or not such claim, right or remedy arises in equity, under contract, by statute, under common law or otherwise. Any amount paid by the Company to the Contributor in violation of the immediately preceding sentence prior to the Discharge Date shall be held in trust for the benefit of the Collateral Agent (on behalf of the Secured Parties) and shall promptly thereafter be paid to the Collateral Agent for application in accordance with the Credit Documents.

6

Section 4.4. Reinstatement. This Agreement and the obligations of the Contributor and the Company hereunder shall automatically be reinstated if and to the extent that for any reason any payment made by or on behalf of the Contributor in respect of any portion of the Required Equity Contribution pursuant to this Agreement is rescinded or otherwise restored to the Contributor or the Company, whether as a result of any Bankruptcy Event with respect to the Company, Pledgor or any other Person or as a result of any settlement or compromise with any Person (including the Contributor) in respect of such payment, in each case as if such payment had not been made; provided however that any such reinstated obligations shall be subject to the conditions to the making of an Equity Contribution that are set forth in Article II.

ARTICLE V.

PURCHASED INTERESTS IN BANKRUPTCY

Section 5.1. Required Purchase of Interests. If by reason of a Bankruptcy Event with respect to the Contributor, Pledgor or the Company, or any act of a Governmental Authority, (a) any Equity Contribution due hereunder has not been deposited in the Note Redemption Account within five Business Days after the date on which such amount is payable hereunder or (b) any Equity Contribution theretofore deposited pursuant to Article II is rescinded or otherwise restored to the Contributor and five Business Days have elapsed after the date that such Equity Contribution was rescinded or otherwise restored (such Equity Contribution, whether required but not made as provided in clause (a) above or made and returned as provided in clause (b) above, the “Defaulted Payment”), the Contributor shall, without any further notice or demand by the Collateral Agent, purchase the Notes then outstanding from Holders of Notes who submitted a Purchase Notice (the “Purchased Interests”) as provided in the following sentence, in an aggregate principal amount equal to the amount of the Defaulted Payment. The purchase by the Contributor of the Purchased Interests pursuant to this Section 5.1 shall be at par (plus accrued interest) and shall comply with all Governmental Rules and all such Notes so purchased shall be held by the Contributor until such time as it is able to contribute all Notes to the Company for cancellation. The failure of any Holders of Notes to tender its Notes pursuant to the such tender offer shall not result in a Default or Event of Default, and the Contributor’s obligation in any such circumstance shall be to pay any amounts that would otherwise have been paid to non-tendering Holders of the Notes to the Company as promptly as the Contributor is able to do so.

Section 5.2. Effect of Purchase of Purchased Interests. The Contributor’s purchase of the Purchased Interests following a Defaulted Payment in respect of Equity Contributions shall satisfy the Contributor’s obligation pursuant to Section 2.1 to make Equity Contributions to the extent of the Purchased Interests so purchased by the Contributor.

Section 5.3. Subordinate Nature of Purchased Interests. The Contributor hereby agrees that the Purchased Interests shall be subordinate in all respects to the interests in the Notes retained by the Secured Parties, so that all payments received or collected on account of the Purchased Interests and applied to the payment or termination thereof, whether received or collected through repayment of the Purchased Interests by the Company or through right of set-off with respect thereto or realization upon any Collateral or otherwise, shall first be applied to

7

the payment of the principal, interest, fees and other amounts then due (whether at its stated maturity, by acceleration or otherwise) on the interests in the Notes retained by the Secured Parties until such principal, interest, fees and other amounts are paid in cash in full, before any such payments are applied on account of the Purchased Interests.

Section 5.4. No Voting Rights. In determining whether the consent of the applicable Secured Parties required for any action under a Credit Document has been obtained for all purposes under the Credit Documents, the Purchased Interests shall not be deemed to be outstanding.

Section 5.5. Obligations Unconditional. The obligations of the Contributor under this Article V to purchase the Purchased Interests are absolute and unconditional and shall not be affected by the occurrence of any Default or Event of Default or any other circumstance, including any circumstance of the nature described in Section 4.2.

ARTICLE VI.

REPRESENTATIONS AND WARRANTIES

The Contributor represents and warrants to the Company and the Collateral Agent (on behalf of the Secured Parties), as of the Closing Date and each other relevant date set forth in the Credit Documents, that:

Section 6.1. Organization; Authority; Powers. The Contributor (a) is duly incorporated, validly existing and in good standing under the laws of its jurisdiction of organization, (b) has all requisite corporate power and authority to (i) own or hold under lease and operate the property and assets it purports to own or hold under lease, (ii) carry on its business as now conducted and as now proposed to be conducted and (iii) to execute, deliver and perform its obligations under this Agreement, and (c) is qualified to do business and in good standing in each jurisdiction where such qualification is required by law, except where the failure to do so would not reasonably be expected to have a Material Adverse Effect. The execution, delivery and performance by the Contributor of this Agreement have been duly authorized by all corporate action required to be taken or obtained by the Contributor.

Section 6.2. No Conflict. The execution, delivery and performance by the Contributor of this Agreement will not (a) violate (i) the organizational or governing documents of the Contributor, (ii) any provision of any Governmental Rule applicable to or binding on the Contributor or any of its properties or (iii) any applicable order of any court or any rule, regulation or order of any Governmental Authority, (b) be in conflict with, result in a breach of or constitute (alone or with notice or lapse of time or both) a default under, give rise to a right of or result in any cancellation or acceleration of any right or obligation (including any payment) or to a loss of a benefit under any agreement or other instrument to which the Contributor is a party or by which it or any of its property is or may be bound, or (c) result in the creation or imposition of any Lien upon or with respect to any property or assets now owned or hereafter acquired by the Contributor.

Section 6.3. Enforceability. This Agreement has been duly executed and delivered by the Contributor and, assuming due authorization, execution and delivery by each other party

8

hereto, this Agreement constitutes a legal, valid and binding obligation of the Contributor enforceable against the Contributor in accordance with its terms, subject to (a) the effects of bankruptcy, insolvency, moratorium, reorganization, fraudulent conveyance or other similar laws affecting creditors’ rights generally and (b) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).

Section 6.4. No Litigation. There are no actions, suits, investigations or proceedings by or before any arbitrator or Governmental Authority pending against or, to the knowledge of the Contributor, threatened against or affecting the Contributor that, if adversely determined to or against the Contributor, could reasonably be expected to have a Material Adverse Effect.

Section 6.5. Equity Interests. The Contributor indirectly owns 100% of the outstanding Class A membership interests in Pledgor, and Pledgor directly owns 100% of the outstanding equity interests in the Company.

Section 6.6. Compliance with Law. The Contributor is in compliance with all applicable Governmental Rules, other than any non-compliance that could not reasonably be expected to have a Material Adverse Effect.

Section 6.7. Financial Statements. In the case of the financial statements of the Contributor most recently delivered to the Secured Parties pursuant to Section 5.5 or 7.1, as applicable, of the Note Purchase Agreement, each such financial statement and information has been prepared in conformity with GAAP and fairly presents, in all material respects, the financial position of the Contributor described in such financial statements as at the respective dates thereof and the results of operations and cash flows of the Contributor described therein for each of the periods then ended, subject, in the case of any such unaudited financial statements, to changes resulting from audit and normal year-end adjustments.

Section 6.8. Adequate Information. The Contributor is informed of the financial condition and prospects of the Company and has reviewed and is familiar with the terms of the Credit Documents that are material to its obligations hereunder.

Section 6.9. Investment Company Act. The Contributor is not an “investment company” within the meaning of the Investment Company Act of 1940, as amended.

Section 6.10. Solvency. The Contributor is Solvent.

Section 6.11. Pari Passu Obligations. The Contributor’s obligation to make the Required Equity Contribution as required hereunder ranks, according to its terms, at least pari passu with the Contributor’s obligations under its outstanding senior unsecured Debt.

9

ARTICLE VII.

COVENANTS

The Contributor covenants and agrees to comply with the following covenants at all times prior to the Discharge Date:

Section 7.1. Existence. Subject to Section 7.3, the Contributor shall maintain and preserve its existence.

Section 7.2. Compliance with Laws. The Contributor shall comply with all applicable Governmental Rules, except where the failure to so comply could not reasonably be expected to have a Material Adverse Effect.

Section 7.3. Fundamental Changes. The Contributor shall not liquidate, terminate, wind-up or dissolve, or combine, merge or consolidate with or into any other entity, other than any such merger in which (a) the Contributor is the surviving Person or (b) if another Person is the surviving Person, such Person shall have assumed in writing or by operation of law the obligations of the Contributor under this Agreement.

Section 7.4. Further Assurances. The Contributor shall perform, upon the reasonable request of the Collateral Agent or as necessary, all reasonable acts as may be necessary to carry out the intent of this Agreement.

Section 7.5. QFCP Status. The Contributor shall take no action (or fail to take any action) that would result in the loss of eligibility of the Company as a QFCP Generator under the Tariff.

ARTICLE VIII.

MISCELLANEOUS

Section 8.1. Notices. All notices required or permitted under the terms and provisions hereof shall be in writing, and any such notice shall become effective upon delivery in accordance with Article 18 of the Note Purchase Agreement. Notices to the Company or the Purchasers may be given at the addresses set forth in Article 18 of the Note Purchase Agreement (or as otherwise instructed in writing by such Person to the other parties hereto), and notices to the Contributor or the Collateral Agent may be given at the address set forth below (or as otherwise instructed in writing by the Contributor or the Collateral Agent to the other parties hereto):

Contributor:

Bloom Energy Corporation

1299 Orleans Drive

Sunnyvale, CA 94089-1137

Attn: Scott Reynolds

Telephone: (408) 543-1551

Fax: (408) 543-1501

Collateral Agent:

Deutsche Bank Trust Company Americas

60 Wall Street

MSNYC 60-2710

New York, NY 10005

10

Attention: Trust and Agency Services

Telephone: (212) 250-7863

Facsimile: (732) 578-4593

with a copy to:

Deutsche Bank National Trust Company for

Deutsche Bank Trust Company Americas

Global Transaction Banking

Trust and Securities Services

100 Plaza One – 6^th Floor

MSJCY 03-0699

Jersey City, NJ 07311-3901

Facsimile: (732) 380-2345

Section 8.2. Entire Agreement. This Agreement constitutes the entire contract between the parties relative to the subject matter hereof. Any previous agreement, whether written or oral, among the parties or their Affiliates with respect to the subject matter hereof is superseded by this Agreement.

Section 8.3. Severability. In case any provision in or obligation hereunder shall be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions or obligations shall not in any way be affected or impaired thereby. If any such provision of this Agreement is so declared invalid or unenforceable, the parties shall promptly negotiate in good faith new provisions to eliminate such invalidity and to restore this Agreement as near as possible to its original intent and effect.

Section 8.4. Headings. Article and Section headings and the Table of Contents used herein are for convenience of reference only, are not part of this Agreement and are not to affect the construction of, or to be taken into consideration in interpreting, this Agreement.

Section 8.5. Governing Law. This Agreement shall be construed and enforced in accordance with, and the rights of the parties shall be governed by, the law of the State of New York excluding choice-of-law principles of the law of such State that would permit the application of the laws of a jurisdiction other than such State.

Section 8.6. Jurisdiction; Consent to Service of Process.

(a) Each party hereto irrevocably submits to the non-exclusive jurisdiction of any New York State or federal court sitting in the Borough of Manhattan, The City of New York, over any suit, action or proceeding arising out of or relating to this Agreement. To the fullest extent permitted by applicable law, the parties irrevocably waive and agree not to assert, by way of motion, as a defense or otherwise, any claim that it is not subject to the jurisdiction of any such court, any objection that it may now or hereafter have to the laying of the venue of any such suit, action or proceeding brought in any such court and any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum.

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(b) Each party hereto consents to process being served in any suit, action or proceeding by mailing a copy thereof by registered or certified mail (or any substantially similar form of mail), postage prepaid, return receipt requested, to it at its address specified in Section 8.1 or at such other address of which such party shall then have been notified pursuant to said Section. Each party hereto agrees that such service upon receipt (i) shall be deemed in every respect effective service of process upon it in any such suit, action or proceeding and (ii) shall, to the fullest extent permitted by applicable law, be taken and held to be valid personal service upon and personal delivery to it. Notices hereunder shall be conclusively presumed received as evidenced by a delivery receipt furnished by the United States Postal Service or any reputable commercial delivery service.

(c) The parties hereto hereby waive trial by jury in any action brought on or with respect to this Agreement.

Section 8.7. Amendments. No amendment, supplement or waiver of any provision of this Agreement nor consent to any departure by any of the parties hereto from any provision of this Agreement shall in any event be effective unless the same shall be in writing and signed by each of the parties hereto. Any such amendment, supplement, waiver or consent shall be effective only in the specific instance and for the specified purpose for which given.

Section 8.8. Assignments.

(a) General. This Agreement and the rights, interests or obligations hereunder may not be assigned by any of the parties hereto without the prior written consent of the other parties hereto; provided however that (a) the Company may, without consent of the other parties, collaterally assign its rights under this Agreement to the Collateral Agent, for the benefit of the Secured Parties, as collateral security for the Obligations of the Company pursuant to the Security Agreement (and as further described in Section 8.8(b)) and (b) the Contributor may, without consent of the other parties, assign its rights under this Agreement as permitted under Section 7.3. This Agreement shall inure to the benefit of and be binding upon the Contributor, the Company and the Collateral Agent (on behalf of the Secured Parties), and their respective successors and permitted assigns. Nothing in this Agreement will confer upon any Person not a party to this Agreement, or the legal representatives of such person or entity, any rights or remedies of any nature or kind whatsoever under or by reason of this Agreement. Any purported assignment of this Agreement in violation of this Section 8.8 shall be null and void and shall be ineffective to relieve any party of its obligations hereunder.

(b) Consent to Collateral Assignment. The Contributor hereby consents to the collateral assignment by the Company of all of its right, title and interest in, to and under this Agreement to the Collateral Agent (for the benefit of the Secured Parties) pursuant to the Security Agreement. The Contributor and the Company agree that the Collateral Agent (or its designee or assignee) shall, subject to the Collateral Agency Agreement, be entitled to enforce this Agreement in its own name and to exercise any and all rights of the Company under this Agreement in accordance with the terms hereof (either in its own name or in the name of the Company, as the Collateral Agent may elect), and the Contributor and the Company agree to comply and cooperate in all respects with such exercise. Without limiting the generality of the foregoing, upon the occurrence and during the continuance of an Event of Default or upon the

12

delivery to the Company of a Purchase Notice and the failure of the Contributor to make the Required Equity Contribution within the period specified in Section 2.2, the Collateral Agent (or its designee or assignee), subject to the Collateral Agency Agreement, shall have the full right and power to enforce directly against the Contributor all obligations of the Contributor under this Agreement and otherwise to exercise all remedies available to the Company hereunder, and to make all demands and give all notices and make all requests (either in its own name or in the name of the Company, as the Collateral Agent may elect) required or permitted to be made or given by the Company under this Agreement (including the right to make demand for payment of Equity Contributions in accordance with Section 2.2), and the Contributor acknowledges and agrees that any such action taken by the Collateral Agent shall be deemed effective for all purposes of this Agreement to the same extent as if such action had been taken directly by the Company. If the Contributor shall receive inconsistent directions under this Agreement from the Company and the Collateral Agent, the directions of the Collateral Agent shall be deemed the superseding directions (so long as such directions are consistent with the provisions of this Agreement) and the Contributor shall accordingly comply with such directions of the Collateral Agent.

Section 8.9. Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed an original, but all such counterparts together shall constitute but one and the same instrument. Delivery of an executed counterpart to this Agreement by facsimile transmission or electronic transmission in “.pdf” format shall be as effective as delivery of a manually signed original.

Section 8.10. No Waiver. No failure on the part of the Collateral Agent to exercise, and no delay in exercising, any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy by the Collateral Agent preclude any other or further exercise thereof or the exercise of any other right, power or remedy. All remedies hereunder are cumulative and are not exclusive of any other remedies provided by applicable law. The Collateral Agent shall not be deemed to have waived any rights hereunder or under any other agreement or instrument unless such waiver shall be in writing and signed by the Collateral Agent.

Section 8.11. Specific Performance. To the extent it may do so under applicable Governmental Rules, the Collateral Agent may demand specific performance of this Agreement. The Contributor hereby irrevocably waives, to the extent it may do so under applicable Governmental Rules, any defense based on the adequacy of a remedy at law that may be asserted as a bar to the remedy of specific performance in any action brought against the Contributor for specific performance of this Agreement by the Collateral Agent or for its benefit by a receiver, custodian or trustee appointed for the Company or Pledgor, or in respect of all or a substantial part of their respective assets, under any Debtor Relief Law.

Section 8.12. Termination. Upon the Discharge Date, and except for the terms hereof that expressly survive termination and, except as provided in Section 4.4, this Agreement shall terminate and be of no further force and effect.

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Section 8.13. Rights of Collateral Agent. The Collateral Agent is entitled to the rights, privileges, protections, immunities, benefits and indemnities set forth in the Collateral Agency Agreement and the respective Credit Documents as if specifically set forth herein.

[Signature page follows.]

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IN WITNESS WHEREOF, the parties hereto have caused this Equity Contribution Agreement to be duly executed by their respective authorized representatives as of the day and year first written above.

BLOOM ENERGY CORPORATION, as the Contributor
By:	/s/ Martin Collins
Name:	Martin Collins
Title:	VP
DIAMOND STATE GENERATION PARTNERS, LLC,
as the Company
By:	/s/ William E. Brockenborough
Name:	William E. Brockenborough
Title:	President

Equity Contribution Agreement

DEUTSCHE BANK TRUST COMPANY AMERICAS, as the Collateral Agent
By: DEUTSCHE BANK NATIONAL TRUST COMPANY
By:	/s/ Wanda Camacho
Name:	Wanda Camacho
Title:	Vice President
By:	/s/ Rodney Gaughan
Name:	RODNEY GAUGHAN
Title:	VICE PRESIDENT

Equity Contribution Agreement

EX-10

Exhibit 10.16

[***] Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

EXECUTION VERSION

DIAMOND STATE GENERATION PARTNERS, LLC

$144,812,500

5.22% Senior Secured Notes due March 30, 2025

NOTE PURCHASE AGREEMENT

Dated March 20, 2013

TABLE OF CONTENTS

SECTION	HEADING	PAGE
ARTICLE 1. Authorization of Notes			1
ARTICLE 2. Sale and Purchase of Notes			1
ARTICLE 3. Closing			1
ARTICLE 4. Conditions Precedent			2
Section 4.1	Conditions Precedent to Closing		2
Section 4.2	Conditions Precedent to All Drawdowns		12
Section 4.3	Conditions Precedent to each Credit Event		14
Section 4.4	Conditions Precedent to Final Completion		15
ARTICLE 5. Representations and Warranties of the Company			16
Section 5.1	Organization; Power and Authority		16
Section 5.2	Authorization, Etc.		17
Section 5.3	Disclosure		17
Section 5.4	Subsidiaries		17
Section 5.5	Financial Statements; Material Liabilities		17
Section 5.6	Compliance with Laws, Other Instruments, Etc.		18
Section 5.7	Governmental Authorizations, Etc.		18
Section 5.8	Observance of Agreements, Statutes and Orders		18
Section 5.9	Taxes		18
Section 5.10	Reserved		19
Section 5.11	Licenses, Permits, Etc.		19
Section 5.12	Compliance with ERISA		19
Section 5.13	Private Offering by the Company		20
Section 5.14	Use of Proceeds; Margin Regulations		20
Section 5.15	Existing Debt; Future Liens		20
Section 5.16	Foreign Assets Control Regulations, Etc.		21
Section 5.17	Status under Certain Statutes		21
Section 5.18	Environmental Matters		21
Section 5.19	Permits		22
Section 5.20	Solvency		22
Section 5.21	Insurance		22
Section 5.22	Litigation		23
Section 5.23	Labor Matters		23
Section 5.24	Governmental Regulation		23
Section 5.25	Ranking of Obligations; Perfection and Priority of Liens		24
Section 5.26	Project Construction		24
Section 5.27	Adverse Change		24
Section 5.28	Major Project Documents		24
Section 5.29	Sufficiency of Rights		25

Section 5.30	Real Estate	25
Section 5.31	Flood Zone Disclosure	26
Section 5.32	Investments	26
Section 5.33	No Recordation, Etc.	26
Section 5.34	Organizational ID Number; Location of Tangible Collateral	26
ARTICLE 6. Representations of the Purchasers		26
Section 6.1	Purchase for Investment	26
Section 6.2	Source of Funds	27
Section 6.3	Institutional Accredited Investor	28
ARTICLE 7. Information as to Company		28
Section 7.1	Financial Statements and Rating Letter	28
Section 7.2	Other Reporting Requirements	29
Section 7.3	Officer’s Certificate	31
Section 7.4	Visitation	31
ARTICLE 8. Payment and Prepayment of the Notes		32
Section 8.1	Required Payments; Mandatory Prepayments; Offer to Repay	32
Section 8.2	Optional Prepayments with Make-Whole Amount	33
Section 8.3	Allocation of Partial Prepayments	34
Section 8.4	Maturity; Surrender, Etc.	34
Section 8.5	Purchase of Notes	34
Section 8.6	Make-Whole Amount	34
ARTICLE 9. Affirmative Covenants		36
Section 9.1	Compliance with Laws	36
Section 9.2	Insurance	36
Section 9.3	Maintenance of Properties	36
Section 9.4	Payment of Taxes and Claims	36
Section 9.5	Corporate Existence, Etc.	37
Section 9.6	Books, Records	37
Section 9.7	Use of Proceeds, Equity Contributions, Project Revenues	37
Section 9.8	Payment	37
Section 9.9	Additional Direct Agreements	38
Section 9.10	Performance of the Major Project Documents	38
Section 9.11	Utility Regulation	38
Section 9.12	Construction of the Project	38
Section 9.13	As-Built Survey	38
Section 9.14	Operation and Maintenance of Project; Operating Budget	38
Section 9.15	Preservation of Rights; Further Assurances	39
Section 9.16	Forced Outage Event	41
Section 9.17	Event of Eminent Domain	41
Section 9.18	Environmental Laws	42

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Section 9.19	Independent Consultants	42
Section 9.20	Partial Completion Buydown	42
Section 9.21	Separateness	42
Section 9.22	Rating	43
Section 9.23	Rating Event	43
Section 9.24	Debt Service Coverage Ratio	43
ARTICLE 10. Negative Covenants		43
Section 10.1	Transactions with Affiliates	43
Section 10.2	Dissolution; Merger	43
Section 10.3	Line of Business; Changes	43
Section 10.4	Sale or Lease of Assets	44
Section 10.5	Terrorism Sanctions Regulations	44
Section 10.6	Liens	44
Section 10.7	Contingent Obligations	44
Section 10.8	Debt	44
Section 10.9	Investments	44
Section 10.10	Restricted Payments	45
Section 10.11	Margin Loan Regulations	45
Section 10.12	Partnership, Separateness Etc.	45
Section 10.13	Amendments	45
Section 10.14	Name and Location; Fiscal Year	46
Section 10.15	Hazardous Substances	46
Section 10.16	Use of Sites	46
Section 10.17	Project Documents	46
Section 10.18	Assignment by Third Parties	46
Section 10.19	Acquisition of Real Property	46
Section 10.20	ERISA	46
Section 10.21	Lease Obligations	47
Section 10.22	Disputes	47
Section 10.23	Assignment	47
Section 10.24	Accounts	47
Section 10.25	Regulations; Tariff	47
Section 10.26	Capital Expenditures	47
ARTICLE 11. Events of Default		47
Section 11.1	Failure to Make Payments	47
Section 11.2	Misstatements	48
Section 11.3	Breach of Terms of Agreement	48
Section 11.4	Defaults Under Other Debt	48
Section 11.5	Bankruptcy; Insolvency	49
Section 11.6	Judgments	49
Section 11.7	ERISA	49
Section 11.8	Ownership of the Project	49
Section 11.9	Loss of Collateral	49

-iii-

Section 11.10	Abandonment	50
Section 11.11	Security	50
Section 11.12	Regulatory Status	50
Section 11.13	Loss of or Failure to Obtain Applicable Permits	51
Section 11.14	Credit Document Matters	51
Section 11.15	Project Document Matters	51
Section 11.16	Eminent Domain	52
Section 11.17	Cash Grant Recapture	52
Section 11.18	Final Completion	52
ARTICLE 12. Remedies on Default, Etc.		53
Section 12.1	Acceleration	53
Section 12.2	Other Remedies	53
Section 12.3	Rescission	53
Section 12.4	No Waivers or Election of Remedies, Expenses, Etc.	54
ARTICLE 13. Registration; Exchange; Substitution of Notes		54
Section 13.1	Registration of Notes	54
Section 13.2	Transfer and Exchange of Notes	54
Section 13.3	Replacement of Notes	55
ARTICLE 14. Payments on Notes		56
Section 14.1	Place of Payment	56
Section 14.2	Home Office Payment	56
ARTICLE 15. Expenses, Etc.		56
Section 15.1	Transaction Expenses	56
Section 15.2	Survival	57
ARTICLE 16. Survival of Representations and Warranties; Entire Agreement		57
ARTICLE 17. Amendment and Waiver		57
Section 17.1	Requirements	57
Section 17.2	Solicitation of Holders of Notes	58
Section 17.3	Binding Effect, etc.	58
Section 17.4	Notes Held by Company, etc.	58
ARTICLE 18. Notices		59
ARTICLE 19. Reproduction of Documents		59
ARTICLE 20. Confidential Information		60

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ARTICLE 21. Substitution of Purchaser		61
ARTICLE 22. Miscellaneous		61
Section 22.1	Successors and Assigns	61
Section 22.2	Payments Due on Non-Business Days	61
Section 22.3	Accounting Terms	61
Section 22.4	Severability	62
Section 22.5	Construction, etc.	62
Section 22.6	Counterparts	62
Section 22.7	Governing Law	62
Section 22.8	Jurisdiction and Process; Waiver of Jury Trial	62
Section 22.9	Scope of Liability	63
Section 22.10	U.S. Tax Forms	64

SCHEDULE A	—	Information Relating To Purchasers
SCHEDULE B	—	Defined Terms
SCHEDULE 4.1.22	—	Litigation
SCHEDULE 4.1.26	—	Project Budget
SCHEDULE 4.1.27	—	Base Case Projections
SCHEDULE 4.1.28	—	Project Schedule
SCHEDULE 4.1.30	—	List of Direct Agreements
SCHEDULE 5.3	—	Disclosure Materials
SCHEDULE 5.5	—	Financial Statements
SCHEDULE 5.15	—	Existing Debt
SCHEDULE 5.19	—	Permits
SCHEDULE 8.1	—	Amortization Schedule
SCHEDULE 9.2	—	Required Insurance
EXHIBIT 1	—	Form of 5.22% Senior Secured Note due March 30, 2025
EXHIBIT 4.1.13(a)	—	Form of Opinion of Special Counsel for the Company
EXHIBIT 4.1.13(b)	—	Form of Opinion of Regulatory Counsel for the Company
EXHIBIT 4.1.13(c)	—	Form of opinion of Constitutional Counsel for the Company

-v-

EXHIBIT 4.1.13(d)	—	Form of Opinion of Delaware Real Estate Counsel for the Company
EXHIBIT 4.1.13(e)	—	Form of Opinion of Delaware Regulatory Counsel for the Company
EXHIBIT 4.1.13(f)	—	Form of Opinion of Special Counsel for the Purchasers
EXHIBIT 4.1.14	—	Form of Insurance Broker Certificate
EXHIBIT 4.1.16	—	Form of Independent Engineer Certificate
EXHIBIT 4.1.17	—	Form of Environmental Consultant Certificate
EXHIBIT 4.1.30	—	Form of Direct Agreement
EXHIBIT 4.2.1(a)	—	Form of Drawdown Certificate
EXHIBIT 4.2.1(b)	—	Form of Independent Engineer’s Drawdown Certificate
EXHIBIT 4.2.1(c)	—	Form of Company’s COD Certificate
EXHIBIT 4.2.1(d)	—	Form of Independent Engineer’s COD Certificate
EXHIBIT 4.4.3	—	Form of Final Completion Certificate of the Company
EXHIBIT 4.4.4	—	Form of Final Completion Certificate of the Independent Engineer
EXHIBIT 8.1.3(b)	—	Form of Offer to Repay Notice

-vi-

5.22% Senior Secured Notes due March 30, 2025

March 20, 2013

TO EACH OF THE PURCHASERS LISTED IN

SCHEDULE A HERETO:

Ladies and Gentlemen:

Diamond State Generation Partners, LLC, a Delaware limited liability company (the “Company”), agrees with each of the Purchasers as follows:

ARTICLE 1. AUTHORIZATION OF NOTES.

The Company will authorize the issuance and sale of $144,812,500 aggregate principal amount of its 5.22% Senior Secured Notes due March 30, 2025 (the “Notes”, such term to include any such notes issued in substitution therefor pursuant to Article 13). The Notes shall be substantially in the form set out in Exhibit 1. Certain capitalized and other terms used in this Agreement are defined in Schedule B; and references to a “Schedule” or an “Exhibit” are, unless otherwise specified, to a Schedule or an Exhibit attached to this Agreement.

ARTICLE 2. SALE AND PURCHASE OF NOTES.

Subject to the terms and conditions of this Agreement, the Company will issue and sell to each Purchaser and each Purchaser will purchase from the Company, at the Closing provided for in Article 3, Notes in the principal amount specified opposite such Purchaser’s name in Schedule A at the purchase price of 100% of the principal amount thereof. The Purchasers’ obligations hereunder are several and not joint obligations and no Purchaser shall have any liability to any Person for the performance or non-performance of any obligation by any other Purchaser hereunder.

ARTICLE 3. CLOSING.

The sale and purchase of the Notes to be purchased by each Purchaser shall occur at the offices of Latham & Watkins LLP, 885 Third Avenue, New York, New York 10022, at 10:00 a.m., New York City time, at a closing on March 20, 2013 (the “Closing”) or on such other Business Day thereafter on or prior to March 25, 2013 as may be agreed upon by the Company and the Purchasers. At the Closing the Company will deliver to each Purchaser the Notes to be purchased by such Purchaser in the form of a single Note (or such greater number of Notes in denominations of at least [***] as such Purchaser may request) dated the date of the Closing and registered in such Purchaser’s name (or in the name of its nominee), against delivery by such Purchaser to the Company or its order of immediately available funds in the amount of the purchase price therefor by wire transfer of immediately available funds for the account of the Company to account number 210340899 at Wilmington Savings Fund Society, ABA:

[***] Confidential Treatment Requested

031100102, Account Name: Drinker Biddle & Reath, LLP – IOLTA Rule 1.15A Attorney Trust Account. If at the Closing the Company shall fail to tender such Notes to any Purchaser as provided above in this Article 3, or any of the conditions specified in Sections 4.1 and 4.3 shall not have been fulfilled to such Purchaser’s satisfaction, such Purchaser shall, at its election, be relieved of all further obligations under this Agreement, without thereby waiving any rights such Purchaser may have by reason of such failure or such nonfulfillment.

ARTICLE 4. CONDITIONS PRECEDENT.

Section 4.1 Conditions Precedent to Closing.

Each Purchaser’s obligation to purchase and pay for the Notes to be sold to such Purchaser at the Closing is subject to the prior satisfaction of each of the following conditions unless waived by each Purchaser (the date such conditions precedent are so satisfied or waived being referred to as the “Closing Date”):

Section 4.1.1 Performance; No Default. The Company shall have performed and complied with all agreements and conditions contained in this Agreement required to be performed or complied with by it prior to or at the Closing. The Company shall not have entered into any transaction since the date of the Memorandum that would have been prohibited by Article 10 had such Article applied since such date.

Section 4.1.2 Purchase Permitted By Applicable Law, Etc. On the Closing Date such Purchaser’s purchase of the Notes shall (a) be permitted by the laws and regulations of each jurisdiction to which such Purchaser is subject, without recourse to provisions (such as section 1405(a)(8) of the New York Insurance Law) permitting limited investments by insurance companies without restriction as to the character of the particular investment, (b) not violate any applicable law or regulation (including, without limitation, Regulation T, U or X of the Board of Governors of the Federal Reserve System) and (c) not subject such Purchaser to any tax, penalty or liability under or pursuant to any applicable law or regulation, which law or regulation was not in effect on the date hereof. If requested by such Purchaser, such Purchaser shall have received a certificate of a Responsible Officer of the Company certifying as to such matters of fact as such Purchaser may reasonably specify to enable such Purchaser to determine whether such purchase is so permitted.

Section 4.1.3 Sale of Other Notes. Contemporaneously with the Closing the Company shall sell to each other Purchaser and each other Purchaser shall purchase the Notes to be purchased by it at the Closing as specified in Schedule A.

Section 4.1.4 Private Placement Number. A Private Placement Number issued by Standard & Poor’s CUSIP Service Bureau (in cooperation with the SVO) shall have been obtained for the Notes.

Section 4.1.5 Changes in Corporate Structure. The Company shall not have changed its jurisdiction of formation, or been a party to any merger or consolidation or succeeded to all or any substantial part of the liabilities of any other entity, at any time following the date of the most recent financial statements referred to in Schedule 5.5.

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Section 4.1.6 Funding Instructions. At least three Business Days prior to the Closing Date, each Purchaser shall have received written instructions signed by a Responsible Officer of the Company on letterhead of the Company confirming the information specified in Article 3 including (i) the name and address of the transferee bank, (ii) such transferee bank’s ABA number and (iii) the account name and number into which the purchase price for the Notes is to be deposited.

Section 4.1.7 Resolutions. The Company shall have delivered to each of the Purchasers a copy of one or more resolutions or other authorizations, in form and substance reasonably satisfactory to the Purchasers, of each Credit Party as of the Closing Date certified by a Responsible Officer of such Credit Party as being true, complete, in full force and effect on the Closing Date and not amended, modified, revoked or rescinded, authorizing, as applicable and among other things, the issuance of the Notes herein provided for, the granting of the Liens under the Collateral Documents, the provision of the guaranties, warranties and indemnities, the contribution of equity to the Company and the execution, delivery and performance of this Agreement, the other Operative Documents and any instruments or agreements required hereunder or thereunder to which such Credit Party is a party.

Section 4.1.8 Incumbency. The Company shall have delivered to each of the Purchasers a certificate, in form and substance reasonably satisfactory to the Purchasers, from each Credit Party signed by the appropriate authorized officer or manager of each such Credit Party and dated as of the Closing Date, as to the incumbency and specimen signature of each natural Person authorized to execute and deliver this Agreement, the other Operative Documents and any instruments or agreements required hereunder or thereunder to which such Credit Party is a party, including various certificates to be delivered by such Credit Party pursuant to this Section 4.1.

Section 4.1.9 Governing Documents. The Company shall have delivered to each of the Purchasers, in each case certified by a Responsible Officer of such Credit Party as being true, correct and complete on the Closing Date, (a) copies of the certificate of formation, charter or other state certified constituent documents of each Credit Party, certified as of a recent date by the secretary of state of such Credit Party’s state of organization, and (b) copies of the bylaws, limited liability company operating agreement, partnership agreement or other comparable operating documents, if applicable, of each Credit Party.

Section 4.1.10 Good Standing Certificates. The Company shall have delivered to each of the Purchasers certificates (in so-called “long-form” if available) issued by the secretary of state of the state in which each Credit Party and Major Project Participant is formed or incorporated, as applicable, in each case (a) dated a date reasonably close to the Closing Date and (b) certifying that such Credit Party and Major Project Participant is in good standing and is qualified to do business in, and has paid all franchise Taxes or similar Taxes due to, such states.

Section 4.1.11 Credit Documents and Project Documents. The Company shall have delivered to each of the Purchasers (a) true, correct and complete copies of each Credit Document, all of which shall (i) have been duly authorized, executed and delivered by the parties thereto and in form and substance reasonably satisfactory to the Purchasers, and (ii) be in

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full force and effect and accompanied by a certificate of the Company certifying to the foregoing, (b) a certified list of, and true, correct and complete copies of, each Project Document (other than any Project Document which is only incidental to the development, construction, leasing, ownership or operation of the Project) executed on or prior to the Closing Date, each in form and substance reasonably satisfactory to the Purchasers, all of which shall (x) have been duly authorized, executed and delivered by the parties thereto, and (y) be certified by the Company as being true, complete and correct and in full force and effect on the Closing Date and (c) each document, certificate, or other deliverable required to be delivered under each Credit Document as of the Closing Date.

Section 4.1.12 Third Party Approvals. Except for the Permits listed in Part II of Schedule 5.19, the Company shall have received and delivered to each of the Purchasers all Applicable Permits by any Person (including any Governmental Authority) reasonably required in connection with any transaction contemplated in any Operative Document.

Section 4.1.13 Opinions of Counsel. The Company shall have delivered to each Purchaser opinions in form and substance satisfactory to such Purchaser and addressed to each such Purchaser, dated as of the Closing Date (a) from Orrick, Herrington & Sutcliffe LLP, counsel for the Company, covering the matters set forth in Exhibit 4.1.13(a) and covering such other matters incident to the transactions contemplated hereby as such Purchaser or its counsel may reasonably request, (b) from Orrick, Herrington & Sutcliffe LLP, regulatory counsel for the Company, substantially in the form of Exhibit 4.1.13(b), (c) from Orrick, Herrington & Sutcliffe LLP, U.S. constitutional counsel for the Company, substantially in the form of Exhibit 4.1.13(c), (d) from Drinker Biddle & Reath LLP, Company’s Delaware real estate counsel, covering the enforceability of the Mortgage, substantially in the form of Exhibit 4.1.13(d), (e) from Morris James LLP, the Company’s Delaware regulatory counsel, covering Delaware state regulatory matters, substantially in the form of Exhibit 4.1.13(e) and (f) from Latham & Watkins LLP, the Purchasers’ special counsel in connection with such transactions, substantially in the form set forth in Exhibit 4.1.13(f) and covering such other matters incident to such transactions as such Purchaser may reasonably request. The Company also shall have delivered to Fitch Ratings, Inc. an opinion from Orrick, Herrington & Sutcliffe LLP, counsel for the Company, covering non- consolidation matters, which opinion shall be in form and substance satisfactory to Fitch Ratings, Inc. and shall also be addressed to each Purchaser.

Section 4.1.14 Certificate of Insurance Consultant . The Company shall have delivered to each of the Purchasers the Insurance Consultant’s certificate, dated as of the Closing Date and in substantially the form of Exhibit 4.1.14, together with the Insurance Consultant’s report that (a) summarizes the insurance arrangements for the Project and (b) concludes that such insurance is adequate and customary.

Section 4.1.15 Insurance. Insurance complying with terms and conditions set forth in Schedule 9.2 shall be in full force and effect and each of the Purchasers and the Insurance Consultant shall have received a certificate from the Company’s insurance broker(s), dated as of the Closing Date and in form and substance reasonably satisfactory to the Purchasers, (a) identifying underwriters, type of insurance, insurance limits and policy terms, (b) listing the special provisions required as set forth in Schedule 9.2, (c) describing the insurance obtained and (d) stating that such insurance is in full force and effect and that all premiums then due thereon have been paid and that, in the opinion of such broker(s), such insurance complies with the terms and conditions set forth in Schedule 9.2.

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Section 4.1.16 Certificate of the Independent Engineer. The Company shall have delivered to each of the Purchasers the Independent Engineer’s certificate, dated as of the Closing Date and in substantially the form of Exhibit 4.1.16, together with the Independent Engineer’s report, in form and substance reasonably satisfactory to the Purchasers, attached thereto.

Section 4.1.17 Reports of the Company’s Environmental Consultant.

(i) The Company shall have delivered to each of the Purchasers each Environmental Report along with a reliance letter, each in form and substance reasonably satisfactory to the Purchasers.

(ii) The Company shall have delivered to each of the Purchasers a certificate from the Environmental Consultant in substantially the form of Exhibit 4.1.17 that any recognized environmental conditions identified in the Environmental Reports have been fully remediated in accordance with Hazardous Substances Law.

Section 4.1.18 Repayment of Existing Financing. The Purchasers shall have received evidence satisfactory to them that (i) upon the Closing under this Agreement and application of the proceeds on the Closing Date, the lenders providing loans to the Company pursuant to the Existing Financing Agreement have been fully repaid and such lenders have released all Liens granted in their favor securing such loans and (ii) the Collateral Documents (as defined in the Existing Financing Agreement) have been terminated.

Section 4.1.19 Funding of the IDC Reserve Account. The Company shall have funded, or shall fund contemporaneously with the Closing from proceeds of the Notes, the IDC Reserve Account in an amount equal to [***].

Section 4.1.20 Funding of the Debt Service Reserve Account. The Company shall have funded the Debt Service Reserve Account with a portion of the proceeds of the Notes up to the Debt Service Reserve Requirement.

Section 4.1.21 Permit Schedule.

(i) The Company shall have delivered to each of the Purchasers Schedule 5.19, in form and substance reasonably satisfactory to the Purchasers, of which (i) Part I shall be Permits which are Applicable Permits as of the Closing Date, and (ii) Part II shall be Permits which are expected to become Applicable Permits after the Closing Date. The Company shall also deliver to each of the Purchasers copies of each Permit listed in Part I. The Permits listed in Part I shall in the Purchasers’ reasonable opinion comprise all of the Applicable Permits as of the Closing Date.

(ii) Each Permit on Part I of Schedule 5.19 shall (i) have been duly obtained by the Company or on behalf of the Project, (ii) be in full force and effect, (iii) not be subject to any current legal proceeding, and (iv) not be subject to any Unsatisfied Condition that

[***] Confidential Treatment Requested

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could reasonably be expected to result in material modification or revocation of such Permit, and except as disclosed in Schedule 5.19 all applicable appeal periods with respect to each such Permit shall have expired.

(iii) The Permits listed in Part II of Schedule 5.19 shall, in the Purchasers’ reasonable opinion, be timely obtainable (i) on or before the date the Company requires such Permit, (ii) without delay materially in excess of the time provided therefor in the Project Schedule (if applicable), and (iii) without expense materially in excess of the amounts provided therefor in the Project Budget.

(iv) No Applicable Permit shall be subject to any restriction, condition, limitation or other provision which could reasonably be expected to have a Material Adverse Effect.

Section 4.1.22 Absence of Litigation. Except as set forth in Schedule 4.1.22, there are no actions, suits or proceedings by or before any Governmental Authority or arbitrator pending or, to the Company’s Knowledge, threatened in writing by or against the Company or any Major Project Participant related to the Project.

Section 4.1.23 Payment of Fees. All Taxes, fees and other costs payable in connection with the execution, delivery recordation and filing of the documents and instruments referred to in this Section 4.1, and in connection with, title insurance premiums, surveys, charges related thereto, and due on or before the Closing Date shall have been paid in full or, if and in the manner specifically approved by the Purchasers, provided for. The Company shall have paid (or caused to be paid) or shall have made arrangements in the manner reasonably satisfactory to the payee for the payment of all outstanding amounts due, as of the Closing Date, and owing to the Purchasers’ special counsel referred to in Section 4.1.13, the Title Insurer and the Independent Consultants to the extent reflected in a statement rendered to the Company at least one Business Day prior to the Closing Date.

Section 4.1.24 Financial Statements. The Company shall have delivered to each of the Purchasers accurate and complete copies of the most recent (a) audited annual financial statements of Sponsor for the year ended December 31, 2011, and (b) unaudited quarterly financial statements of the Company and Sponsor for the fiscal quarter ended on September 30, 2012, and in any of the foregoing cases, together with, in the case of the Company and Sponsor, a certificate from the appropriate Responsible Officer thereof, dated as of the Closing Date, stating that no material adverse change in the consolidated assets, liabilities, operations or financial condition of such Person has occurred from those set forth in the most recent financial statements provided to the Purchasers.

Section 4.1.25 Collateral Requirements. The Company shall have delivered to the Collateral Agent and each of the Purchasers evidence reasonably satisfactory to the Purchasers that the Company or other applicable Lien grantor has taken or caused to be taken all such actions, executed and delivered or caused to be executed and delivered all such agreements, documents and instruments, and made or caused to be made all such filings and recordings that may be necessary or, in the opinion of the Purchasers, desirable in order to create in favor of the Collateral Agent a valid and (upon such filing and recording) perfected first priority Lien in such Person’s rights, title and interest in and to the Collateral. Such actions shall include delivery:

(i) to each of the Purchasers, of the Pledge Agreement, the Security Agreement and the Depositary Agreement, duly executed by each Credit Party and each other Person party thereto;

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(ii) to the Collateral Agent, of all pledged securities, including all certificates, agreements or instruments representing or evidencing such pledged securities, accompanied by instruments of transfer and membership interest powers undated and endorsed in blank to the extent such pledged interests are certificated;

(iii) to the Collateral Agent, of all promissory notes or other instruments (duly endorsed, where appropriate, in a manner reasonably satisfactory to the Purchasers) evidencing any Collateral;

(iv) to the Collateral Agent, of all other certificates, agreements, including control agreements, or instruments necessary to perfect the Collateral Agent’s security interest in all Chattel Paper, all Instruments, all Deposit Accounts (other than the Cash Grant Account and the System Refund Account) and all Investment Property of the Company (as each such term is defined in the Security Agreement and to the extent required by the Security Agreement);

(v) to the Collateral Agent, of UCC financing statements in appropriate form for filing under the UCC, and, where appropriate, fixture filings and transmitting utility filings, and such other documents under applicable Legal Requirements in each jurisdiction as may be necessary or appropriate or, in the opinion of the Purchasers, desirable to perfect the first priority Liens created, or purported to be created, by the Collateral Documents and, with respect to all UCC financing statements required to be filed pursuant to the Credit Documents, evidence satisfactory to the Purchasers that the Company has retained, at its sole cost and expense, a service provider acceptable to the Purchasers for the tracking of all such financing statements and notification to the Purchasers of, among other things, the upcoming lapse or expiration thereof;

(vi) to each of the Purchasers, of certified copies of UCC, tax and judgment lien searches, bankruptcy and pending lawsuit searches or equivalent reports or searches, each of a date no less recent than ten Business Days before the Closing Date or as otherwise acceptable to the Purchasers listing all effective financing statements, lien notices or comparable documents that name the Company and Pledgor as debtor and that are filed in those state and county jurisdictions in which any property of such Person is located and the state and county jurisdictions in which such Person is organized or maintains its principal place of business and such other searches that the Purchasers deem necessary or appropriate, none of which encumber the Collateral covered or intended to be covered by the Collateral Documents (other than Permitted Liens) showing that upon due filing or recordation (assuming such filing or recordation occurred on the date of such respective reports), as the case may be, the security interests created under the Collateral Documents, with respect to the Collateral, will be prior to all other financing statements, fixture filings or other security documents wherein the security interest is perfected by filing or recording in respect of the Collateral;

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(vii) to each of the Purchasers, of an opinion of counsel (which counsel shall be reasonably satisfactory to the Purchasers) with respect to the perfection of the security interests in favor of the Collateral Agent in personal or mixed property Collateral and such other matters governed by the laws of such jurisdiction regarding such security interests as the Collateral Agent may reasonably request, in each case in form and substance reasonably satisfactory to the Purchasers; and

(viii) to each of the Purchasers, of evidence reasonably satisfactory to the Purchasers of payment or arrangements for payment by the Company of all applicable recording Taxes, stamp duties, registration fees or charges, filing costs and other similar expenses, if any, required to be paid in connection with the execution, delivery or filing of, or the perfection of any Operative Document or otherwise in connection with the Collateral.

Section 4.1.26 Project Budget. The Company shall have delivered to each of the Purchasers the Project Budget in substantially the form of Schedule 4.1.26, which Project Budget shall be satisfactory to the Purchasers.

Section 4.1.27 Base Case Projections. The Company shall have delivered to each of the Purchasers the Base Case Projections, in substantially the form of Schedule 4.1.27, which Base Case Projections shall be satisfactory to the Purchasers.

Section 4.1.28 Project Schedule. The Company shall have delivered to each of the Purchasers the Project Schedule in substantially the form of Schedule 4.1.28, which Project Schedule shall be satisfactory to the Purchasers.

Section 4.1.29 Establishment of Accounts. The Accounts required to be established as of the Closing Date for the Project under the Depositary Agreement shall have been established, and funded in accordance with the Operative Documents, to the satisfaction of the Purchasers.

Section 4.1.30 Direct Agreements. The Company shall have delivered to each of the Purchasers executed Direct Agreements from the Sponsor with respect to each of the MESPA, the MOMA and the Administrative Services Agreement, which Direct Agreements shall be in substantially the form of Exhibit 4.1.30 or otherwise reasonably satisfactory to the Purchasers.

Section 4.1.31 Anti-Terrorism Compliance. At least five Business Days prior to the Closing Date, each Purchaser shall have received all documentation and other information requested by such Purchaser, which is required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act, or pursuant to such Purchaser’s internal policies.

Section 4.1.32 Flood Insurance. The Company shall have delivered to each of the Purchasers evidence from the Insurance Consultant of flood insurance or evidence from the Insurance Consultant that flood insurance is not required, each in form and substance satisfactory to the Purchasers.

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Section 4.1.33 Effectiveness of Tariff. The Tariff and the Gas Tariff shall be final, non appealable and in full force and effect.

Section 4.1.34 Regulatory Status. The Company shall have delivered to each of the Purchasers (a) a self-certification by the Company filed with FERC that the Project is an Eligible Facility and that the Company is an Exempt Wholesale Generator, (b) an order issued by FERC authorizing the Company to sell electricity, capacity and ancillary services at market- based rates and issuing such blanket authorizations and waivers of regulation typically granted to sellers at market-based rates and (c) all necessary approvals from any Governmental Authority in respect of the Tariff.

Section 4.1.35 Tariff Compliance.

(i) The Sponsor shall be a Qualified Fuel Cell Provider which has been designated by an agency of the State of Delaware as an “economic development opportunity” within the meaning of the REPS Act.

(ii) The Company shall be a PJM Member (as defined in the Tariff) and shall have entered into (i) all required PJM Agreements required for the performance of the Company’s obligations in connection with the Project and the Tariff or the Company shall have entered into an agreement with a Market Participant (as defined in the Tariff) that will perform some or all of the Company’s PJM-related obligations in connection with the Project and the Tariff.

(iii) The Company shall have obtained all necessary authorizations from FERC to sell Energy at market-based rates as contemplated by the Tariff and shall be in compliance with such authorization.

Section 4.1.36 Existing Systems. The Company shall have delivered to each of the Purchasers evidence that the Existing Systems have achieved COD, in form and substance satisfactory to the Purchasers.

Section 4.1.37 Other Real Estate Requirements. The Company shall have delivered to each of the Purchasers:

(i) a copy of the Mortgage encumbering the Mortgaged Property in favor of the Collateral Agent, duly executed and acknowledged by the Company, and otherwise in form for recording in the recording office of New Castle County, Delaware, together with such certificates, affidavits, questionnaires or returns as shall be required in connection with the recording or filing thereof to create a Lien under applicable law;

(ii) with respect to the Mortgaged Property, such consents, approvals, amendments, supplements, estoppels, tenant subordination agreements or other instruments as are necessary to consummate the transactions hereunder contemplated or as shall reasonably be deemed necessary by the Purchasers;

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(iii) evidence reasonably acceptable to the Purchasers of payment by the Company of all Title Policy premiums, search and examination charges, and related charges, mortgage recording Taxes, fees, charges, costs and expenses required for the recording of the Mortgage and issuance of the Title Policy;

(iv) with respect to any Real Property in which the Company holds possession by lease or easement (other than where the lessor is the State of Delaware or a subdivision thereof, or DPL), both (a) an agreement by the fee owner to obtain a nondisturbance agreement from each lienholder against the fee interest in such Real Property, and (b) a nondisturbance agreement from any such existing lienholder, in each case in form and substance reasonably satisfactory to the Purchasers;

(v) copies of all Leases or easements in which the Company holds the lessor’s interest or other agreements relating to possessory interests, if any, in the Real Property. To the extent any of the foregoing affect any Real Property, such agreement shall be subordinate to the Lien of each Mortgage to be recorded against the Mortgaged Property, either expressly by its terms or pursuant to a subordination, non-disturbance and attornment agreement, and shall otherwise be acceptable to the Purchasers;

(vi) evidence reasonably acceptable to the Purchasers that the Company and each other Major Project Participant have obtained and hold all easements or other possessory rights in real estate, together with necessary real property permits and crossing rights (collectively, “Rights of Way”) necessary for (a) performance in full of each such Person’s obligations under the Operative Documents and each Permit by which such Person or its assets is bound, and (b) the development, leasing, construction and operation of the Project in accordance with the Base Case Projections. The use of such Rights of Way shall not encroach on or interfere with property adjacent to such Rights of Way or existing easements or other rights (whether on, above or below ground) and the full length of the Rights of Way shall be continuous, without break, gap or interruption;

(vii) the Company has a good, marketable and insurable (a) leasehold interest in the Sites, (b) easement interest in the Easements, and (c) interest in any other Real Property; and

(viii) each Mortgage is a valid first Lien on the Company’s right, title and interest in the applicable Mortgaged Property (including, without limitation, the Rights of Way), free and clear of all Liens, encumbrances and exceptions to title whatsoever, other than (a) the Title Exceptions and (b) Permitted Liens.

Section 4.1.38 Solvency Certificate. The Company shall have delivered to each of the Purchasers a certificate from the president of the Company certifying that the Company is Solvent after giving effect to the transactions contemplated hereby.

Section 4.1.39 Title Policy. The Company shall have delivered to the Collateral Agent (a) an ALTA extended coverage policy of title insurance (2006 form) issued by the Title Insurer and in form and substance acceptable to the Purchasers which policy shall insure that the Mortgage creates a valid first priority Lien on, and security interest in, the

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Mortgaged Property free and clear of all defects and encumbrances, except the Title Exceptions, and containing such endorsements thereto as are reasonably requested by the Purchasers, or (b) the unconditional and irrevocable commitment of the Title Insurer to issue such a policy, in each case in a coverage amount equal to $144,812,500.

Section 4.1.40 DPL Agreements. The Company shall have delivered to each of the Purchasers a copy of any agreement entered into with DPL that DPL will honor any notices received from Collateral Agent pursuant to a power of attorney granted by the Company under the Collateral Documents as if such notice were delivered by the Company under the Tariff.

Section 4.1.41 Recapture Indemnities and Guaranties. The Company shall have delivered to each of the Purchasers copies of each of the executed Recapture Indemnities and Guarantees, each of which shall be in full force and effect as of the Closing Date and each of which shall be in form and substance satisfactory to the Purchasers.

Section 4.1.42 Interconnection Service. For each System at a Site (a) the Company has obtained the relevant Interconnection Agreement for such Site (which shall be in full force and effect), with rights to delivery of the full capacity of that portion of the Project expected to be installed at such Site; and (b) all necessary network upgrades required under each such Interconnection Agreement for interconnection service at such Site have been completed and such interconnection service is fully available.

Section 4.1.43 Red Lion Transmission Line. For each System at the Red Lion Site, the approximate half-mile transmission line connecting the Red Lion Site to the Red Lion substation and the point of interconnection to the PJM Grid shall have been completed and the Company shall have provided evidence to each of the Purchasers that no other party shall be entitled to displace the Company’s access to such line in the amount necessary to accommodate the full output from the Red Lion Site (such evidence may consist of the Interconnection Agreement to be entered into with respect to the Red Lion Site if such agreement has the effect of providing that the Company has the right to place its full output on the line without displacement by any other party).

Section 4.1.44 Utilities. The Company shall have delivered to each of the Purchasers reasonably satisfactory evidence that all process water, sewer, telephone, waste disposal, electric and all other utility services necessary for the development, construction, ownership and operation of the Project are either contracted for, or readily available on commercially reasonable terms, at the Project.

Section 4.1.45 Legality. No federal, state or law or regulation, or any interpretation thereof, exists which would make the Notes, or the securing of the Notes by the Collateral, or any other aspect of the transactions contemplated herein, illegal, or which would subject the Purchasers or any of their Affiliates to any penalties, sanctions or fines.

Section 4.1.46 Utility Laws. No federal, state or local law or regulation exists as of the Closing Date under which any Purchaser would become, solely as a result of the transactions contemplated in the Credit Documents, subject to or not exempt from regulation as

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an “electric utility,” “electric corporation,” “electrical company,” “public utility,” or “holding company” under the FPA, PUHCA or the laws of the State of Delaware, except a Purchaser may become subject to such regulation upon the exercise of remedies under the Credit Documents.

Section 4.2 Conditions Precedent to All Drawdowns.

The obligations of the Holders to permit any Drawdown from the Construction Escrow Account are, in each case, subject to the prior satisfaction by the Company of each of the following conditions (unless waived in writing by the Required Holders):

Section 4.2.1 Drawdown Certificate and Independent Engineer’s Drawdown Certificate.

(a) At least seven Business Days prior to the proposed date of a Drawdown, the Company shall have provided each of the Holders and the Independent Engineer with a duly executed copy of a Drawdown Certificate, dated the date of delivery of such certificate, setting forth the date of the proposed occurrence of such Drawdown and signed by a Responsible Officer of the Company, substantially in the form of Exhibit 4.2.1(a) (the “Drawdown Certificate”).

(b) At least four Business Days prior to the proposed date of a Drawdown, the Independent Engineer shall have provided each of the Holders (with a copy to the Company) with a certificate of the Independent Engineer signed by an authorized representative of the Independent Engineer, substantially in the form of Exhibit 4.2.1(b) (the “Independent Engineer’s Drawdown Certificate”).

(c) At least two Business Days prior to the proposed date of a Drawdown, the Company shall have provided each of the Holders (with a copy to the Independent Engineer) with a certificate confirming that COD has occurred with respect to the Systems being funded under the requested Drawdown and signed by an authorized representative of the Company, substantially in the form of Exhibit 4.2.1(c) (the “Company’s COD Certificate”).

(d) At least one Business Day prior to the proposed date of a Drawdown, the Independent Engineer shall have provided each of the Holders with a certificate dated the date of delivery of such certificate, confirming that COD has occurred with respect to the Systems being funded under the requested Drawdown, substantially in the form of Exhibit 4.2.1(d) (the “Independent Engineer’s COD Certificate”).

(e) The Company shall use all reasonable efforts to provide the Holders and the Independent Engineer with drafts of any certificates and other materials to be delivered pursuant to this Section 4.2.1 in advance of the time frames listed above as reasonably requested by the Holders.

Section 4.2.2 Available Funds. After taking into consideration the making of the applicable Drawdown, the Required Holders (based on consultation with the Independent Engineer) shall have reasonably determined that Available Funds shall not be less than the aggregate unpaid amount required to cause Final Completion to occur in accordance with all Legal Requirements, the MESPA, each other Project Document pursuant to which construction

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work with respect to the Project is being performed and the Credit Documents on or before the Date Certain and to pay or provide for all anticipated non-construction Project Costs, all as set forth in the then-current Project Budget.

Section 4.2.3 Permits.

(a) Each Applicable Permit and Applicable Third Party Permit shall have been duly obtained and issued or been assigned in the Company’s or the applicable third party’s name, shall be in full force and effect, shall not be subject to any current legal proceeding, and shall not be subject to any Unsatisfied Condition that could reasonably be expected to result in material modification or revocation of such Applicable Permit and Applicable Third Party Permit, and all applicable appeal periods with respect to such Applicable Permit and Applicable Third Party Permit shall have expired.

(b) The Permits which have been obtained by the Company shall not be subject to any restriction, condition, limitation or other provision that could reasonably be expected to have a Material Adverse Effect.

Section 4.2.4 Lien Releases. Subject to the Company’s right to contest Liens as described in the definition of “Permitted Liens,” the Company shall have delivered (such delivery may be conditioned upon concurrent receipt of payment by the relevant Person) if applicable, to each of the Holders duly executed Lien waivers relating to mechanics’ and materialmen’s Liens, in form and substance reasonably acceptable to each Holder.

Section 4.2.5 Acceptable Work; No Liens. All work that has been done on the Project has been done in a good and workmanlike manner and in accordance with the MESPA, and there shall not have been filed against any of the Collateral or otherwise filed with or served upon the Company with respect to the Project or any part thereof, notice of any Lien, claim of Lien or attachment upon or claim affecting the right to receive payment of any of the moneys payable to any of the Persons named on such request which has not been released by payment or bonding or otherwise or which will not be released with the payment of such obligation out of the proceeds of the Notes, other than Permitted Liens.

Section 4.2.6 Specific Milestones.

(a) Infrastructure Buildout. For each Funded System at a Site, all necessary shared infrastructure at such Site necessary for installation of such Funded System, including without limitation the “BOF Work” for such Site, as such term is defined in the MESPA, shall have been completed, as certified by the Independent Engineer in the Independent Engineer’s Drawdown Certificate.

(b) 10 MW Limit. For the first Funded System which will cause the Project to exceed 10 MW of nameplate capacity, the Sponsor shall have built a permanent manufacturing facility for Systems located in the State of Delaware, and such Funded System, and all Systems installed following the installation of the System which causes the Project to exceed such 10 MW threshold, shall have been sourced from such manufacturing facility.

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Section 4.2.7 Tariff Compliance. The Company shall be in compliance with the Tariff in all respects.

Section 4.2.8 System COD. Each System being financed with such Drawdown has achieved COD.

Section 4.2.9 Equity Funding; Proportional Funding.

(a) Each quarter prior to any System being placed in service, the Tax Equity Investors shall have contributed to the Pledgor and the Pledgor in turn shall have contributed to the Company 20% of the aggregate purchase price of the Systems to be placed in service, consistent with the Base Case Projections.

(b) Concurrently with any Drawdown, the Tax Equity Investors shall have contributed to the Pledgor and the Pledgor in turn shall have contributed to the Company (in addition to the contribution described in Section 4.2.9(a)) 30.20% of the aggregate purchase price of the Systems placed in service through the date of such Drawdown, consistent with the Base Case Projections.

(c) After giving effect to any Drawdown, the ratio of amounts drawn from the Construction Escrow Account to the total Notes shall not exceed the ratio of the aggregate nameplate capacity of commissioned Systems to 30 MW.

Section 4.3 Conditions Precedent to each Credit Event.

Section 4.3.1 Representations and Warranties.

(a) Each representation and warranty of each Credit Party in any of the Credit Documents shall be true and correct in all material respects (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects) on and as of the date of such Credit Event, before and after giving effect to the applicable Credit Event, with the same effect as though made on and as of such date, unless such representation or warranty expressly relates solely to an earlier date; and the Company shall have certified to the Purchasers or Holders, as applicable, as to the foregoing.

(b) Each representation and warranty of each Major Project Participant contained in the Operative Documents (other than this Agreement) shall be true and correct in all material respects (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” or the like shall be true and correct in all respects) on and as of the date of such Credit Event, before and after giving effect to the Credit Event, with the same effect as though made on and as of such date, unless such representation and warranty expressly relates solely to an earlier date.

Section 4.3.2 No Default or Event of Default. No Default or Event of Default shall have occurred and be continuing or will result from the relevant Credit Event.

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Section 4.3.3 No Material Adverse Effect. At any time following the Closing Date, there shall not have occurred and be continuing any event, circumstance or condition that has, or could reasonably be expected to have, a Material Adverse Effect.

Section 4.3.4 Additional Documentation. With respect to Additional Project Documents and Applicable Permits entered into or obtained, transferred or required (whether because of the status of the development, construction or operation of the Project or otherwise) since the date of the most recent Credit Event, the Purchasers shall have received copies of such Additional Project Documents and material Applicable Permits.

Section 4.4 Conditions Precedent to Final Completion

The Final Completion Date shall occur upon the satisfaction or waiver in writing by the Required Holders of the following conditions:

Section 4.4.1 Lien Releases. The Company shall have delivered (such delivery may be conditioned upon concurrent receipt of payment by the relevant Person) if applicable, to each of the Holders duly executed Lien waivers relating to mechanics’ and materialmen’s Liens, in form and substance reasonably acceptable to each Holder.

Section 4.4.2 No Liens. There shall not have been filed with or served upon the Company with respect to the Site, the Project or any part thereof notice of any Lien or claim of Lien that has not been discharged, other than Permitted Liens.

Section 4.4.3 Final Completion Certificate of the Company. Each of the Holders shall have received a certificate from the Company, in substantially the form of Exhibit 4.4.3 certifying that:

(a) all facilities necessary for the Project as contemplated under the Tariff and the Operative Documents:

(i) have been constructed, installed, completed, tested, commissioned and paid for in accordance with the Operative Documents; and

(ii) have been completely constructed utilizing standards of workmanship and materials in accordance with the MESPA and in accordance with the terms of the Tariff and Prudent Electrical Practices (as defined in the MESPA) and all relevant equipment shall have been installed and be operating in accordance with the MESPA;

(b) each of the Systems shall have achieved COD; and

(c) 30 MW of Systems shall have passed the Performance Tests and have demonstrated performance at or better than nameplate capacity on or before the Date Certain, or if less than 30 MW of Systems have passed such Performance Tests and demonstrated such performance, the Company shall have paid the Buydown Amount.

Section 4.4.4 Final Completion Certificate of the Independent Engineer. Each of the Holders shall have received a certificate from the Independent Engineer, in substantially the form of Exhibit 4.4.4 certifying, among other things, as to the matters set forth in Section 4.4.3.

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Section 4.4.5 Major Project Documents. All Major Project Documents shall be in full force and effect and no default or event of default shall have occurred and be continuing under any Major Project Document.

Section 4.4.6 Applicable Permits. The Company (i) shall have obtained and delivered to each of the Holders copies of all material Applicable Permits obtained or to be obtained by or in the name of the Company and required to operate the Project, and (ii) shall be in compliance with all material Applicable Permits in all material respects thereunder.

Section 4.4.7 Tariff. The Tariff shall be final, non-appealable and in full force and effect.

Section 4.4.8 Debt Service Reserve Account. The Debt Service Reserve Account shall be fully funded up to the Debt Service Reserve Requirement in cash.

Section 4.4.9 Title Insurance. The Title Company shall have issued to the Collateral Agent no more than two (2) Business Days prior to the Final Completion Date an endorsement to the Title Policy in form and substance reasonably satisfactory to the Required Holders insuring the continued priority of the Lien of the Mortgage over any mechanics’ and materialmen’s liens or other construction liens or related notices as of the Final Completion Date.

Section 4.4.10 Notice of Final Completion. Each of the Holders shall have received a notice of Final Completion at least three (3) Business Days before the Final Completion Date.

ARTICLE 5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.

The Company represents and warrants to each Purchaser that:

Section 5.1 Organization; Power and Authority.

(a) The Company is a limited liability company duly formed, validly existing and in good standing under the laws of its jurisdiction of formation, and is duly qualified as a foreign company and is in good standing in each jurisdiction in which such qualification is required by law, other than those jurisdictions as to which the failure to be so qualified or in good standing could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. The Company has the limited liability company power and authority to own or hold under lease the properties it purports to own or hold under lease, to transact the business it transacts and proposes to transact, to execute and deliver this Agreement and the other Operative Documents to which is a party (including, without limitation, the Notes) and to perform the provisions hereof and thereof, including to construct, own and operate the Project.

(b) The sole member of the Company is the Pledgor.

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Section 5.2 Authorization, Etc. This Agreement and the other Operative Documents to which the Company is a party (including, without limitation, the Notes) have been duly authorized by all necessary limited liability company action on the part of the Company, and this Agreement constitutes, and upon execution and delivery thereof each other Operative Document to which the Company is a party will constitute, a legal, valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except as such enforceability may be limited by (i) applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally and (ii) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).

Section 5.3 Disclosure. The Company, through its agent, J.P. Morgan Securities, Inc. (the “Placement Agent”) has delivered to each Purchaser a copy of a Private Placement Memorandum, dated January 2013 (the “Memorandum”), relating to the transactions contemplated hereby. The Memorandum fairly describes, in all material respects, the general nature of the business and principal properties of the Company. This Agreement, the Memorandum and the documents, certificates or other writings delivered to the Purchasers by or on behalf of the Company in connection with the transactions contemplated hereby and identified in Schedule 5.3, and the financial statements listed in Schedule 5.5 (this Agreement, the Memorandum and such documents, certificates or other writings and such financial statements delivered to each Purchaser prior to February 13, 2013 being referred to, collectively, as the “Disclosure Documents”), taken as a whole, do not contain any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading in light, as of the date such information is dated or certified, of the circumstances under which they were made; provided, that to the extent any such information, report, financial statement, certificate, Certificate of Drawdown, exhibit, schedule or other document was based upon or constitutes a forecast or projection, the Company represents only that it acted in good faith and utilized reasonable assumptions and due care in the preparation of such information, report, financial statement, certificate, Certificate of Drawdown, exhibit, schedule or other document. Except as disclosed in the Disclosure Documents, since December 31, 2011, there has been no change in the financial condition, operations, business, properties or prospects of the Company except changes that individually or in the aggregate could not reasonably be expected to have a Material Adverse Effect. There is no fact known to the Company that could reasonably be expected to have a Material Adverse Effect that has not been set forth herein or in the Disclosure Documents.

Section 5.4 Subsidiaries. The Company does not have any Subsidiaries.

Section 5.5 Financial Statements; Material Liabilities. The Company has delivered to each of the Purchasers copies of the financial statements of the Company and Sponsor listed on Schedule 5.5. All of said financial statements (including in each case the related schedules and notes) fairly present in all material respects the consolidated financial position of each of the Company and Sponsor, as applicable, as of the respective dates specified in such Schedule and the results of their respective operations and cash flows and have been prepared in accordance with GAAP consistently applied throughout the periods involved except as set forth in the notes thereto (subject, in the case of any interim financial statements, to normal year-end adjustments). The Company does not have any Material liabilities that are not disclosed on such financial statements or otherwise disclosed in the Disclosure Documents.

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Section 5.6 Compliance with Laws, Other Instruments, Etc. The execution, delivery and performance by the Company of this Agreement and the other Operative Documents to which the Company is a party (including, without limitation, the Notes) will not (i) contravene, result in any breach of, or constitute a default under, or result in the creation of any Lien (other than pursuant to the Credit Documents) in respect of any property of the Company under, any indenture, mortgage, deed of trust, loan, purchase or credit agreement, lease, Governing Documents, or any other agreement or instrument to which the Company is bound or by which the Company or its properties may be bound or affected, (ii) conflict with or result in a breach of any of the terms, conditions or provisions of any order, judgment, decree, or ruling of any court, arbitrator or Governmental Authority applicable to the Company or (iii) violate any provision of any statute or other rule or regulation of any Governmental Authority applicable to the Company.

Section 5.7 Governmental Authorizations, Etc. No consent, approval or authorization of, or registration, filing or declaration with, any Governmental Authority after the date hereof is required in connection with the execution, delivery or performance by the Company of this Agreement or another Operative Documents to which the Company is a party (including, without limitation, the Notes).

Section 5.8 Observance of Agreements, Statutes and Orders. The Company is not (i) in default under any term of any agreement or instrument to which it is a party or by which it is bound, (ii) in violation of any order, judgment, decree or ruling of any court, arbitrator or Governmental Authority or (iii) in violation of any applicable law, ordinance, rule or regulation of any Governmental Authority (including, without limitation, Environmental Laws, the USA PATRIOT Act or any of the other laws and regulations that are referred to in Section 5.16), which default or violation, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.

Section 5.9 Taxes. The Company has filed all tax returns that are required to have been filed in any jurisdiction, and has paid all taxes shown to be due and payable on such returns and all other taxes and assessments levied upon it or its properties, assets, income or franchises, to the extent such taxes and assessments have become due and payable and before they have become delinquent, except for any taxes and assessments (i) the amount of which is not individually or in the aggregate Material or (ii) the amount, applicability or validity of which is currently being contested in good faith by appropriate proceedings and with respect to which the Company has established adequate reserves in accordance with GAAP. The Company knows of no basis for any other tax or assessment that could reasonably be expected to have a Material Adverse Effect. The charges, accruals and reserves on the books of the Company in respect of U.S. federal, state or other taxes for all fiscal periods are adequate.

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Section 5.10 Reserved.

Section 5.11 Licenses, Permits, Etc.

(a) The Company owns or has the right to use all licenses, permits, franchises, authorizations, patents, copyrights, service marks, trademarks and trade names, or rights thereto, that are necessary for the operation of its business, without known conflict with the rights of others. No product or service of the Company infringes in any material respect any license, permit, franchise, authorization, patent, copyright, service mark, trademark, trade name or other right owned by any other Person.

(b) To the Knowledge of the Company, there is no violation by any Person of any right of the Company with respect to any license, patent, copyright, service mark, trademark, trade name or other right owned or used by the Company.

(c) There exists no pending or threatened claim or litigation against or affecting the Company contesting its right to sell or use any such product, process, method, substance, part or other material.

(d) The Company owns no registered patents, copyrights or trademarks, or applications therefor.

Section 5.12 Compliance with ERISA.

(a) The Company and each ERISA Affiliate have operated and administered each Plan (other than any Multiemployer Plan) in compliance in all material respects with all applicable laws. Neither the Company nor any ERISA Affiliate has incurred any material liability pursuant to Title I or IV of ERISA or the penalty or excise tax provisions of the Code relating to employee benefit plans (as defined in section 3 of ERISA), and no event, transaction or condition has occurred or exists that could reasonably be expected to result in the incurrence of any such liability by the Company or any ERISA Affiliate, or in the imposition of any Lien on any of the rights, properties or assets of the Company or any ERISA Affiliate, in either case pursuant to Title I or IV of ERISA or to section 430(k) of the Code or to such penalty or excise tax provisions or to section 4068 of ERISA.

(b) The present value of the aggregate benefit liabilities under each of the Plans (other than Multiemployer Plans), determined as of the end of such Plan’s most recently ended plan year on the basis of the actuarial assumptions specified for funding purposes in such Plan’s most recent actuarial valuation report, did not exceed the aggregate current value of the assets of such Plan allocable to such benefit liabilities. The term “benefit liabilities” has the meaning specified in section 4001 of ERISA and the terms “current value” and “present value” have the meaning specified in section 3 of ERISA.

(c) The Company and its ERISA Affiliates have not incurred any partial or complete withdrawal liabilities (and are not subject to contingent withdrawal liabilities) under section 4201 or 4204 of ERISA in respect of Multiemployer Plans.

(d) The expected postretirement benefit obligation (determined as of the last day of the Company’s most recently ended fiscal year in accordance with Financial Accounting Standards Board Statement No. 106, without regard to liabilities attributable to continuation coverage mandated by section 4980B of the Code) of the Company is zero.

(e) The execution and delivery of this Agreement and the issuance and sale of the Notes hereunder will not involve any transaction that is subject to the prohibitions of section 406 of ERISA or in connection with which a tax could be imposed pursuant to section 4975(c)(1)(A)- (D) of the Code. The representation by the Company in the first sentence of this Section 5.12(e) is made in reliance upon and subject to the accuracy of, each Purchaser’s representation in Section 6.2 as to the sources of the funds used to pay the purchase price of the Notes to be purchased by such Purchaser.

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Section 5.13 Private Offering by the Company. Neither the Company nor anyone acting on its behalf has offered the Notes or any similar Securities for sale to, or solicited any offer to buy any of the same from, or otherwise approached or negotiated in respect thereof with, any Person other than the Purchasers and not more than 25 other Institutional Investors, each of which has been offered the Notes at a private sale for investment. Neither the Company nor anyone acting on its behalf has taken, or will take, any action that would subject the issuance or sale of the Notes to the registration requirements of section 5 of the Securities Act or to the registration requirements of any securities or blue sky laws of any applicable jurisdiction.

Section 5.14 Use of Proceeds; Margin Regulations. The Company will apply the proceeds of the sale of the Notes (i) on the Closing Date as set forth in Section 9.7(a)(A) and (ii) thereafter as set forth in Section 9.7(a)(B). No part of the proceeds from the sale of the Notes hereunder will be used, directly or indirectly, for the purpose of buying or carrying any margin stock within the meaning of Regulation U of the Board of Governors of the Federal Reserve System (12 CFR 221), or for the purpose of buying or carrying or trading in any Securities under such circumstances as to involve the Company in a violation of Regulation X of said Board (12 CFR 224) or to involve any broker or dealer in a violation of Regulation T of said Board (12 CFR 220). Margin stock does not constitute any of the value of the assets of the Company and the Company does not have any present intention that margin stock will constitute any of the value of such assets. As used in this Section, the terms “margin stock” and “purpose of buying or carrying” shall have the meanings assigned to them in said Regulation U.

Section 5.15 Existing Debt; Future Liens. (a) Except as described therein, Schedule 5.15 sets forth a complete and correct list of all outstanding Debt of the Company as of the Closing Date (including a description of the obligors and obligees, principal amount outstanding and collateral therefor, if any, and Guaranty thereof, if any), since which date there has been no Material change in the amounts, interest rates, sinking funds, installment payments or maturities of the Debt of the Company. The Company is not in default and no waiver of default is currently in effect, in the payment of any principal or interest on any Debt of the Company and no event or condition exists with respect to any Debt of the Company that would permit (or that with notice or the lapse of time, or both, would permit) one or more Persons to cause such Debt to become due and payable before its stated maturity or before its regularly scheduled dates of payment.

(b) The Company has not agreed or consented to cause or permit in the future (upon the happening of a contingency or otherwise) any of its property, whether now owned or hereafter acquired, to be subject to a Lien not permitted by Section 10.6.

(c) The Company is not a party to, or otherwise subject to any provision contained in, any instrument evidencing Debt of the Company, any agreement relating thereto or

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any other agreement (other than its charter or other organizational document and the Credit Documents) which limits the amount of, or otherwise imposes restrictions on the incurring of, Debt of the Company, except as specifically indicated in Schedule 5.15.

Section 5.16 Foreign Assets Control Regulations, Etc. (a) Neither the Company nor any Controlled Entity is (i) a Person whose name appears on the list of Specially Designated Nationals and Blocked Persons published by the Office of Foreign Assets Control, U.S. Department of the Treasury (“OFAC”) (an “OFAC Listed Person”) or (ii) a department, agency or instrumentality of, or is otherwise Controlled by or acting on behalf of, directly or indirectly, (x) any OFAC Listed Person or (y) any Person, entity, organization, foreign country or regime that is subject to any OFAC Sanctions Program (each OFAC Listed Person and each other Person, entity, organization and government of a country described in clause (ii), a “Blocked Person”).

(b) No part of the proceeds from the sale of the Notes hereunder constitutes or will constitute funds obtained on behalf of any Blocked Person or will otherwise be used, directly by the Company or indirectly through any Controlled Entity, in connection with any investment in, or any transactions or dealings with, any Blocked Person.

(c) To the Company’s actual knowledge after making reasonable inquiry, neither the Company nor any Controlled Entity (i) is under investigation by any Governmental Authority for, or has been charged with, or convicted of, money laundering, drug trafficking, terrorist-related activities or other money laundering predicate crimes under any applicable law (collectively, “Anti-Money Laundering Laws”), (ii) has been assessed civil penalties under any Anti-Money Laundering Laws or (iii) has had any of its funds seized or forfeited in an action under any Anti-Money Laundering Laws. The Company has taken reasonable measures appropriate to the circumstances (in any event as required by applicable law) to ensure that the Company and each Controlled Entity is and will continue to be in compliance with all applicable Anti-Money Laundering Laws.

(d) No part of the proceeds from the sale of the Notes hereunder will be used, directly or indirectly, for any improper payments to any governmental official or employee, political party, official of a political party, candidate for political office, official of any public international organization or anyone else acting in an official capacity on behalf of a Governmental Authority, in order to obtain, retain or direct business or obtain any improper advantage. The Company has taken reasonable measures appropriate to the circumstances (in any event as required by applicable law) to ensure that the Company and each Controlled Entity is and will continue to be in compliance with all applicable anti-corruption laws and regulations.

Section 5.17 Status under Certain Statutes. The Company is not subject to regulation under the Investment Company Act of 1940, as amended.

Section 5.18 Environmental Matters. (a) The Company has no knowledge of any claim nor has received any notice of any claim, and no proceeding has been instituted raising any claim against the Company or any of its real properties now or formerly owned, leased or operated by it or other assets of the Company, alleging any damage to the environment arising out of or related to the operations of the Company or violation of any Environmental Laws, except, in each case, such as could not reasonably be expected to result in a Material Adverse Effect.

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(b) The Company has no Knowledge of any facts which would give rise to any claim, public or private, of violation of Environmental Laws or damage to the environment emanating from, occurring on or in any way related to real properties now or formerly owned, leased or operated by it or to other assets of the Company or their use, except, in each case, such as could not reasonably be expected to result in a Material Adverse Effect.

(c) The Company has not stored any Hazardous Substances on real properties now or formerly owned, leased or operated by it and has not disposed of any Hazardous Substances in a manner contrary to any Environmental Laws in each case in any manner that could reasonably be expected to result in a Material Adverse Effect.

Section 5.19 Permits.

(a) There are no Permits under existing Legal Requirements with respect to the Project that are or will become Applicable Permits other than the Permits listed on Schedule 5.19. All Applicable Permits have been issued and are in full force and effect and not subject to current legal proceedings or to any Unsatisfied Condition that could reasonably be expected to result in material modification or revocation, and except as disclosed in Schedule 5.19, all applicable appeal periods with respect thereto have expired. The Company is in compliance in all material respects with any Applicable Permit that has been issued and, to the Company’s Knowledge, no other Person is in material violation of any issued Applicable Third Party Permit under which such Person is the permittee.

(b) With respect to any of the Permits which are not yet Applicable Permits or, to the Knowledge of the Company, Applicable Third Party Permits, no fact or circumstance exists which makes it likely that any such Permit will not be timely obtainable by the Company or the applicable Person (a) prior to the time that it becomes an Applicable Permit or Applicable Third Party Permit, as applicable, (b) without delay materially in excess of the time periods thereof in the Project Schedule (if applicable), (c) without expense materially in excess of the amounts provided therefor in the then-current Project Budget and (d) without being inconsistent in any material respect with any of the Operative Documents.

(c) Except as disclosed in Schedule 5.19, the Permits which have been obtained by the Company or, to the Company’s Knowledge, any other person identified in Schedule 5.19 shall not be subject to any restriction, condition, limitation or other provision that could reasonably be expected to have a Material Adverse Effect.

Section 5.20 Solvency. The Company is Solvent both before and after taking into account the transactions contemplated by the Credit Documents.

Section 5.21 Insurance. All insurance policies then required to be maintained by the Company and, to the Company’s Knowledge, each other Major Project Participant pursuant to the terms of the Operative Documents are in full force and effect, and all premiums then due and payable have been paid.

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Section 5.22 Litigation.

(a) Except as set forth in Schedule 4.1.22, as of the Closing Date, no action, litigation, suit, proceeding or investigation before or by any court, arbitrator or other Governmental Authority is pending or, to the Company’s Knowledge, threatened in writing by or against the Company, or any other Credit Party or, to the Company’s Knowledge, Major Project Participant as relates to the Project, or any of their respective properties that relate to the Project.

(b) As of the Closing Date, the Company has no Knowledge of any order, judgment or decree having been issued or proposed to be issued by any Governmental Authority that, as a result of the construction, development, ownership or operation of the Project by the Company, the sale of electricity therefrom by the Company or the entering into of any Operative Document or any transaction contemplated hereby or thereby, could reasonably be expected to cause or deem any Secured Party or the Company or any Affiliate of any of them to be subject to, or not exempted from, regulation under PUHCA, or treated as a public utility under the laws of the State of Delaware as presently constituted and as construed by the courts of the State of Delaware, respecting the rates or the financial or organizational regulation of electric utilities.

(c) After the Closing Date, (a) there is no pending or, to the Company’s Knowledge, threatened action, litigation, suit, proceeding or investigation of any kind, including actions or proceedings of or before any Governmental Authority or arbitrator to which the Company or any other Credit Party is a party, or by which any of them or any of their properties that relate to the Project are bound and (b) there is to the Company’s Knowledge, no pending or threatened action, litigation, suit, proceeding or investigation of any kind, including actions or proceedings of or before any Governmental Authority to which any Major Project Participant is a party, or by which any of them or any of their properties that relate to the Project are bound, which, in either case, has not been disclosed by the Company to the Purchasers in accordance with, and to the extent required by this Agreement, or which could reasonably be expected to have a Material Adverse Effect.

Section 5.23 Labor Matters. The Company is not engaged in any unfair labor practice that has had or could (individually or together with other similar unfair labor practices) reasonably expected to have a Material Adverse Effect.

Section 5.24 Governmental Regulation.

(a) As of the Closing Date, the Company is not subject to regulation as (a) an “electric utility company”, a “public-utility company” or a “holding company” or a “subsidiary company” of a “holding company” in each case as such term is defined under PUHCA, or (b) an “electric supplier”, a “retail electricity supplier” or a “public utility” under the laws of the State of Delaware. The Company is an Exempt Wholesale Generator and a “public utility” under the FPA with authority to make wholesale sales at market-based rates, with waivers of regulations and blanket authorizations that are customarily granted by FERC to a public utility with market- based rate authority, and such Exempt Wholesale Generator status and market-based rate authorization shall be in full force and effect, not subject to any pending protest or challenge.

(b) None of the Secured Parties nor any Affiliate of any of them will, solely as a result of the construction, ownership, leasing or operation of the Project, the sale of wholesale electric capacity, energy or ancillary services therefrom, the issuance of the Notes, or the entering into of any Operative Document in respect of the Project or any transaction contemplated hereby or thereby, be subject to, or not exempt from, regulation under the FPA or PUHCA or under state laws and regulations respecting the rates or the financial regulation of electric utilities, except that the exercise of remedies, as provided for under the Credit Documents, may cause any such Person to be subject to such regulation. The Company will not be subject to regulation as a “retail electricity supplier,” an “electric supplier” or a “public utility” under the laws of the State of Delaware then in effect.

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Section 5.25 Ranking of Obligations; Perfection and Priority of Liens.

(a) This Agreement and the Notes and the obligations evidenced hereby and thereby are and will at all times (i) be direct and unconditional general obligations of the Company and (ii) rank in right of payment and otherwise at least pari passu with all other senior secured Debt of the Company, whether now existing or hereafter incurred.

(b) The provisions of the Collateral Documents to which the Company is a party are effective to create, in favor of the Collateral Agent for the benefit of the Secured Parties, as security for the obligations purported to be secured thereby, a legal, valid and enforceable Lien on and security interest in all of the Collateral purported to be covered by such Collateral Documents, and all other necessary and appropriate action has been taken so that each such Collateral Document creates, or upon the filing of any necessary filing statements will create, a perfected Lien on and perfected security interest in all right, title and interest of the Company in the Collateral covered thereby, prior and superior to the rights of all third persons and subject to no Liens other than Permitted Liens. The Company has good, legal and valid title to all items of Collateral covered by each Collateral Document to which it is a party free and clear of all Liens other than Permitted Liens.

Section 5.26 Project Construction. To the best of the Company’s Knowledge, all work done on the Project has been done in a good and workmanlike manner, free of any material defects, and in accordance in all material respects with the Major Project Documents, Prudent Electrical Practices and all Legal Requirements.

Section 5.27 Adverse Change.

(a) As of the Closing Date, there is no fact known to the Company which has had or could reasonably be expected to have a Material Adverse Effect which has not been disclosed to the Purchasers (as of such date) by or on behalf of the Company on or prior to the Closing Date in connection with the transactions contemplated hereby.

(b) Since the Closing Date, no event, circumstance or condition has occurred and is continuing that constitutes or could reasonably be expected to result in a Material Adverse Effect.

Section 5.28 Major Project Documents. True, correct and complete copies of all Major Project Documents together with all amendments, modifications or supplements thereof as

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currently in effect have been delivered to the Purchasers. Each Major Project Document is in full force and effect and, to the Company’s Knowledge, no breaches or defaults have occurred and are continuing thereunder.

Section 5.29 Sufficiency of Rights. Other than those that can be reasonably expected to be commercially available when and as required, the services to be performed, the materials to be supplied and the real property interests, the Easements and other rights granted, or to be granted, pursuant to the Project Documents in effect as of such date:

(a) comprise all of the interests necessary to secure any right material to the acquisition, leasing, development, construction, installation, completion, operation and maintenance of the Project in accordance with all Legal Requirements and in accordance with the Project Schedule, all without reference to any proprietary information not owned by or available to the Company;

(b) are sufficient to enable the Project to be located, constructed, developed, owned, occupied, operated, maintained and used on the Sites and the Easements; and

(c) provide adequate ingress and egress from the Sites for any reasonable purpose in connection with the construction and operation of the Project.

Section 5.30 Real Estate.

(a) The Company owns and possesses (a) good and valid leasehold interests in and to the Sites, (b) valid and subsisting easement interests and licenses in and to the Easements, and (c) interests in any other Real Property, in each case free and clear of all Liens, encumbrances or other exceptions to title, other than (i) as of the Closing Date, the Title Exceptions and (ii) as of any date thereafter, Permitted Liens.

(b) The Mortgage is a valid first priority Lien on the Company’s right, title and interest in the Mortgaged Property (including, without limitation, to the extent permitted by law, the real property permits and crossing rights), free and clear of all Liens, encumbrances and exceptions to title whatsoever, other than (a) as of the Closing Date, the Title Exceptions and (b) as of any date thereafter, the Title Exceptions and Permitted Liens described in clause (a) or (b) of the definition thereof (to the extent the same are afforded priority over the Lien of the Mortgage by operation of law).

(c) With regard to each of the Real Property Documents, (a) each such Real Property Document is valid and effective against the Company and, to the Company’s Knowledge, the counterparties thereto, in accordance with the terms thereof, (b) neither the Company, nor to the Company’s Knowledge, any of the counterparties thereto, is in breach or default under such Real Property Document, and (c) to the Company’s Knowledge, no event or circumstance has occurred or currently exists which, with notice or lapse of time or both, would become a default by the Company or the counterparties thereto under such Real Property Document. No notice of default under any Real Property Document has been delivered to the Company or, to the Company’s Knowledge, the counterparties thereto.

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(d) The Company has not received written notice from any Governmental Authority of any pending or threatened proceeding to condemn or take by power of eminent domain or otherwise, by any Governmental Authority, all or any material part of the Real Property or any interest therein.

(e) None of the Mortgaged Property is subject to or encumbered by any option, right of first refusal or other contractual right or obligation to sell, assign or dispose of such Mortgaged Property or any interest therein.

Section 5.31 Flood Zone Disclosure. The Sites and Easements do not and will not include “improved real estate” (as such term is used in the Flood Disaster Protection Act of 1973, as amended) located in an area that has been identified by the Federal Emergency Management Agency as an area having special flood or mudslide hazards.

Section 5.32 Investments. Other than Permitted Investments, the Company has not acquired an equity interest in, acquired all or substantially all of the assets of, loaned money, extended credit or made advances to, or made deposits with (other than deposits or advances in relation to the payment for goods and equipment in the ordinary course of business the making of which is expressly contemplated pursuant to the Operative Documents), any Person.

Section 5.33 No Recordation, Etc. Each Operative Document is in proper legal form under the respective governing laws selected in such Operative Document (a) for the enforcement thereof in such jurisdictions against the Company and each other party thereto without any further action on the part of the Secured Parties, and (b) to ensure the legality, validity, enforceability, priority or admissibility in evidence of any such document it is not necessary that such document or any other document be filed, registered or recorded with, or executed or notarized before, any court or other authority in such jurisdiction or that any registration charge or stamp or similar tax be paid on or in respect of any such document, except for the recordation of the Collateral Documents and filing and recordation of such other documents as specifically contemplated pursuant to this Agreement.

Section 5.34 Organizational ID Number; Location of Tangible Collateral.

(a) The Company’s Delaware organizational identification number is 4969078.

(b) All of the tangible Collateral is, or when installed pursuant to the Project Documents will be, located on one of the Sites or the Easements or at the Company’s address set forth in Article 18; provided, that equipment may be temporarily removed from the Sites and/or the Easements from time to time in the ordinary course of business.

ARTICLE 6. REPRESENTATIONS OF THE PURCHASERS.

Section 6.1 Purchase for Investment. Each Purchaser severally represents that it is purchasing the Notes for its own account or for one or more separate accounts maintained by such Purchaser or for the account of one or more pension or trust funds and not with a view to the distribution thereof, provided that the disposition of such Purchaser’s or their property shall at all times be within such Purchaser’s or their control. Each Purchaser understands that the

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Notes have not been registered under the Securities Act and may be resold only if registered pursuant to the provisions of the Securities Act or if an exemption from registration is available, except under circumstances where neither such registration nor such an exemption is required by law, and that the Company is not required to register the Notes.

Section 6.2 Source of Funds. Each Purchaser severally represents that at least one of the following statements is an accurate representation as to each source of funds (a “Source”) to be used by such Purchaser to pay the purchase price of the Notes to be purchased by such Purchaser hereunder:

(a) the Source is an “insurance company general account” (as the term is defined in the United States Department of Labor’s Prohibited Transaction Exemption (“PTE”) 95-60) in respect of which the reserves and liabilities (as defined by the annual statement for life insurance companies approved by the NAIC (the “NAIC Annual Statement”)) for the general account contract(s) held by or on behalf of any employee benefit plan together with the amount of the reserves and liabilities for the general account contract(s) held by or on behalf of any other employee benefit plans maintained by the same employer (or affiliate thereof as defined in PTE 95-60) or by the same employee organization in the general account do not exceed 10% of the total reserves and liabilities of the general account (exclusive of separate account liabilities) plus surplus as set forth in the NAIC Annual Statement filed with such Purchaser’s state of domicile; or

(b) the Source is a separate account that is maintained solely in connection with such Purchaser’s fixed contractual obligations under which the amounts payable, or credited, to any employee benefit plan (or its related trust) that has any interest in such separate account (or to any participant or beneficiary of such plan (including any annuitant)) are not affected in any manner by the investment performance of the separate account; or

(c) the Source is either (i) an insurance company pooled separate account, within the meaning of PTE 90-1 or (ii) a bank collective investment fund, within the meaning of PTE 91-38 and, except as disclosed by such Purchaser to the Company in writing pursuant to this clause (c), no employee benefit plan or group of plans maintained by the same employer or employee organization beneficially owns more than 10% of all assets allocated to such pooled separate account or collective investment fund; or

(d) the Source constitutes assets of an “investment fund” (within the meaning of Part VI of PTE 84-14 (the “QPAM Exemption”)) managed by a “qualified professional asset manager” or “QPAM” (within the meaning of Part VI of the QPAM Exemption), no employee benefit plan’s assets that are managed by the QPAM in such investment fund, when combined with the assets of all other employee benefit plans established or maintained by the same employer or by an affiliate (within the meaning of Part VI(c)(1) of the QPAM Exemption) of such employer or by the same employee organization and managed by such QPAM, exceed 20% of the total client assets managed by such QPAM, the conditions of Part I(c) and (g) of the QPAM Exemption are satisfied, neither the QPAM nor a person controlling or controlled by the QPAM (applying the definition of “control” in Section VI(e) of the QPAM Exemption) maintains an ownership interest in the Company that would cause the QPAM and the Company to be “related” within the meaning of Part VI(h) of the QPAM Exemption and (i) the identity of

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such QPAM and (ii) the names of any employee benefit plans whose assets in the investment fund, when combined with the assets of all other employee benefit plans established or maintained by the same employer or by an affiliate (within the meaning of Part VI(c)(1) of the QPAM Exemption) of such employer or by the same employee organization, represent 10% or more of the assets of such investment fund, have been disclosed to the Company in writing pursuant to this clause (d);or

(e) the Source constitutes assets of a “plan(s)” (within the meaning of section IV(h) of PTE 96-23 (the “INHAM Exemption”)) managed by an “in-house asset manager” or “INHAM” (within the meaning of Part IV(a) of the INHAM Exemption), the conditions of Part I(a), (g) and (h) of the INHAM Exemption are satisfied, neither the INHAM nor a person controlling or controlled by the INHAM (applying the definition of “control” in section IV(d) of the INHAM Exemption) owns a 10% or more interest in the Company (as determined under Part IV(d) of the INHAM Exemption, as amended effective April 1, 2011) and (i) the identity of such INHAM and (ii) the name(s) of the employee benefit plan(s) whose assets constitute the Source have been disclosed to the Company in writing pursuant to this clause (e); or

(f) the Source is a governmental plan; or

(g) the Source is one or more employee benefit plans, or a separate account or trust fund comprised of one or more employee benefit plans, each of which has been identified to the Company in writing pursuant to this clause (g); or

(h) the Source does not include “plan assets” within the meaning of 29 CFR 2510.3-101, as modified by section 3(42) of ERISA.

As used in this Section 6.2, the terms “employee benefit plan,” “governmental plan,” and “separate account” shall have the respective meanings assigned to such terms in section 3 of ERISA.

Section 6.3 Institutional Accredited Investor. Each Purchaser severally represents that it is an institutional investor that is an “accredited investor” within the meaning of Rule 501 under the Securities Act and that it has such knowledge and experience in financial and business matters that it is capable of evaluating and bearing the economic risk of an investment in the Notes.

ARTICLE 7. INFORMATION AS TO COMPANY.

Section 7.1 Financial Statements and Rating Letter. The Company shall deliver to each Purchaser and each Holder of a Note that is an Institutional Investor:

(a) Annual Financial Statements. As soon as practicable and in any event [***] audited financial statements of the Company and Sponsor (it being acknowledged that such requirement may be satisfied by the delivery of the appropriate report on Form 10-K filed with the SEC, if applicable), all prepared in accordance with GAAP consistently applied and setting forth, in each case, in comparative form the figures for the previous fiscal year. Such financial statements shall include a statement of equity, a balance sheet as of the close of such year, an income and expense statement,

[***] Confidential Treatment Requested

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reconciliation of capital accounts (where applicable), a statement of cash flow and summary results of hedging and trading activities (in the case of the Company only), reported on without a qualification arising out of the scope of the audit, and certified by an independent certified public accountant of nationally recognized standing selected by the Person whose financial statements are being prepared. Such certificate shall not be qualified or limited because of restricted or limited examination by such accountant. The relevant accountant for the Company shall also certify that in making the examination necessary for reporting on the foregoing financial statements no knowledge was obtained of any Default or Event of Default, except as disclosed in such certificate.

(b) Quarterly Statements. As soon as practicable and in any event [***] unaudited quarterly balance sheet of the Company and Sponsor as of the last day of such quarterly period and the related statements of income, cash flows, and shareholders’ or members’ equity (as applicable) for such quarterly period and (in the case of second and third quarterly periods) for the portion of the fiscal year ending with the last day of such quarterly period, setting forth in each case in comparative form corresponding unaudited figures from the preceding fiscal year (it being acknowledged that such requirement may be satisfied by the delivery of the appropriate report on Form 10-Q filed with the SEC, if applicable) all prepared in accordance with GAAP consistently applied (subject to changes resulting from audit and normal year-end adjustments and the absence of footnote disclosures).

(c) Rating Letter. [***] (i) a copy of the final ratings letter obtained by the Company and (ii) each ratings letter obtained by the Company in accordance with Section 9.22.

Section 7.2 Other Reporting Requirements.

(a) Construction Progress Reports. The Company shall deliver to each of the Holders and the Independent Engineer, at least as frequently as each Drawdown Certificate, progress reports of the construction of the Project, in reasonable detail.

(b) Operating Report. The Company shall deliver to each of the Holders within 30 days after the end of each full quarter occurring after the Closing Date, a summary operating report with respect to the Project, which shall include, with respect to the period most recently ended (a) a monthly and year-to-date numerical and narrative assessment of (i) the Project’s compliance with each material category in the then-current Annual Operating Budget, (ii) electrical production, capacity, availability and delivery, including any reports delivered under the MESPA and MOMA, (iii) fuel use, including heat rate, (iv) plant and unit availability, (v) distributions to Pledgor, debt service payments and balances in the Accounts, (vi) Hot Box Replacements, (vii) material unresolved disputes with contractors, materialmen, suppliers or others and any related claims against the Company and (viii) warranty claims under the MESPA or MOMA; and (b) to the extent applicable, a comparison of year-to-date figures to corresponding figures provided in the prior year.

[***] Confidential Treatment Requested

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(c) Notice of Default or Event of Default — The Company shall deliver to each of the Holders promptly, and in any event within five Business Days after a Responsible Officer of the Company becoming aware of the existence of any Default or Event of Default or that any Person has given any notice or taken any action with respect to a claimed default hereunder or that any Person has given any notice or taken any action with respect to a claimed default of the type referred to in Section 11.4, a written notice specifying the nature and period of existence thereof and what action the Company is taking or proposes to take with respect thereto.

(d) ERISA Matters — The Company shall deliver to each of the Holders promptly, and in any event within five days after a Responsible Officer of the Company becoming aware of any of the following, a written notice setting forth the nature thereof and the action, if any, that the Company or an ERISA Affiliate proposes to take with respect thereto:

(i) with respect to any Plan (other than any Multiemployer Plan) that is subject to Title IV of ERISA, any reportable event, as defined in section 4043(c) of ERISA and the regulations thereunder, for which notice thereof has not been waived pursuant to such regulations as in effect on the date hereof; or

(ii) the taking by the PBGC of steps to institute, or the threatening by the PBGC of the institution of, proceedings under section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Plan subject to Title IV of ERISA, or the receipt by the Company or any ERISA Affiliate of a notice from a Multiemployer Plan that such action has been taken by the PBGC with respect to such Multiemployer Plan; or

(iii) any event, transaction or condition that could result in the incurrence of any liability by the Company or any ERISA Affiliate pursuant to Title I or IV of ERISA or the penalty or excise tax provisions of the Code relating to employee benefit plans, or in the imposition of any Lien on any of the rights, properties or assets of the Company or any ERISA Affiliate pursuant to Title I or IV of ERISA or such penalty or excise tax provisions, if such liability or Lien, taken together with any other such liabilities or Liens then existing, could reasonably be expected to have a Material Adverse Effect.

(e) Notices from Governmental Authority — The Company shall deliver to each of the Holders promptly, and in any event within 30 days of receipt thereof, copies of any notice to the Company from any federal or state Governmental Authority relating to any order, ruling, statute or other law or regulation that could reasonably be expected to have a Material Adverse Effect.

(f) Requested Information — The Company shall deliver to each of the Holders with reasonable promptness, such other data and information relating to the business, operations, affairs, financial condition, assets or properties of the Company (including, but without limitation, actual copies of the Company’s Form 10-Q and Form 10-K, if applicable) or relating to the ability of the Company to perform its obligations under the Credit Documents as from time to time may be reasonably requested by any Holder of a Note.

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(g) New Documents — The Company shall deliver to each of the Holders promptly, but in no event later than five Business Days after execution and delivery thereof, a copy of each Additional Project Document.

(h) Litigation — The Company shall deliver to each of the Holders promptly, any notice with respect to any litigation pending or, to the Company’s Knowledge, threatened in writing against the Company, such notice to include, if requested in writing by any of the Holders, copies of all papers filed in such litigation and to be given monthly if any such papers have been filed since the last notice given.

(i) Cash Grant — The Company shall deliver to each of the Holders promptly, any notice, demand or other written communication delivered to the Company or any Affiliate thereof (if the Company has a copy thereof) by the U.S. Department of the Treasury or other Governmental Authority with respect to the Cash Grant and/or any Recapture Liabilities.

(j) Outage — The Company shall deliver to each of the Holders promptly, but in no event later than five days after occurrence thereof, (a) the scheduling of any outage with an anticipated duration in excess of five days and (b) any outage (scheduled or otherwise) with a duration in excess of five days.

(k) Other information — The Company shall deliver to each of the Holders promptly upon the Company’s receipt of the same, copies of material notices received by the Company under the Major Project Documents.

(l) Project Schedule — The Company shall deliver to each of the Holders promptly, any material modification to the Project Schedule.

(m) Rating Event — The Company shall notify each of the Holders promptly of the occurrence of a Rating Event and in any event within five Business Days of the occurrence thereof.

Section 7.3 Officer’s Certificate. Each set of financial statements of the Company delivered to a Holder of a Note pursuant to Section 7.1(a) or Section 7.1(b) shall be accompanied by a certificate of a Senior Financial Officer of the Company certifying that such Senior Financial Officer has reviewed the relevant terms hereof and has made, or caused to be made, under his or her supervision, a review of the transactions and conditions of the Company from the beginning of the quarterly or annual period covered by the statements then being furnished to the date of the certificate and that such review shall not have disclosed the existence during such period of any condition or event that constitutes a Default or an Event of Default or, if any such condition or event existed or exists (including, without limitation, any such event or condition resulting from the failure of the Company to comply with any Environmental Law), specifying the nature and period of existence thereof and what action the Company shall have taken or proposes to take with respect thereto.

Section 7.4 Visitation. The Company shall, subject to requirements of Governmental Rules, safety requirements and existing confidentiality restrictions imposed upon the Company by any other Person, and, if a Default or an Event of Default then exists, at the expense of the Company, permit employees or agents of each Holder of a Note and the Independent Engineer at

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any reasonable times and upon reasonable prior notice to the Company and the Operator, (i) to inspect all of the Company’s properties, including the Sites, (ii) to examine or audit all of the Company’s books, accounts and records and make copies and memoranda thereof, (iii) to communicate with the Company’s auditors outside the presence of the Company, (iv) to discuss the business, operations, properties and financial and other conditions of the Company with officers and employees of the Company and with its independent certified public accountants, and (v) to witness any Performance Tests.

ARTICLE 8. PAYMENT AND PREPAYMENT OF THE NOTES.

Section 8.1 Required Payments; Mandatory Prepayments; Offer to Repay.

Section 8.1.1 Required Payments. Installment payments of principal due on each Note shall be made in accordance with the Amortization Schedule on each Repayment Date and each Note shall mature and all remaining principal and accrued interest payment, fees and costs (and, if applicable, the Make-Whole Amount) shall be payable on the Maturity Date.

Section 8.1.2 Mandatory Prepayment. The Company shall prepay the principal amount of the Notes at 100% of the principal amount thereof, together with accrued and unpaid interest thereon and without payment of the Make-Whole Amount:

(i) with the Net Available Amount of the proceeds of any Loss Event in relation to the Project in which the Company receives more than [***] of insurance or other proceeds, subject to the Company’s right to repair and restore as set forth in Section 3.7.2(b) of the Depositary Agreement, pursuant to Section 3.7.2(c) of the Depositary Agreement; or

(ii) with the proceeds of warranty claims or refund claims received by the Company pursuant to Section 8.2(b) or Section 8.3 of the MESPA or Section 2.5 of the MOMA, other than with respect to amounts to be deposited into the System Refund Account;

(iii) to the extent required by Section 9.20 (Partial Completion Buydown); and

(iv) to the extent required by Section 3.8.2(b) of the Depositary Agreement.

All mandatory prepayments of Notes shall be applied in the inverse order of maturity against the remaining scheduled principal repayment amounts of the Notes other than any mandatory prepayment pursuant to Section 8.1.2(iii) above which shall be applied pro rata among all remaining installments of principal.

Section 8.1.3 Offer to Repay.

(a) The Company shall make to each Holder of the Notes an Offer to Repay (as defined in paragraph (b) below) the principal amount of the Notes at 100% of the principal amount thereof, together with accrued and unpaid interest thereon to the Offer Settlement Date (as defined in paragraph (b) below) and without payment of the Make-Whole Amount or any premium as follows:

(i) upon the occurrence of a Change of Control; or

(ii) upon the occurrence of a Rating Event to the extent required by Section 9.23.

[***] Confidential Treatment Requested

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(b) Within thirty (30) days after the occurrence of any event described in paragraph (a) above requiring the Company to make an Offer to Repay, the Company shall prepare and provide to each Holder of a Note a notice (each, an “Offer to Repay Notice”), which shall be substantially in the form of Exhibit 8.1.3(b) and shall include an offer (the “Offer to Repay”) pursuant to the covenant in paragraph (a) above to repay, on the date (each, an “Offer Settlement Date”) that is twenty (20) Business Days after the date of the Offer to Repay Notice, all of such Holder’s Notes. Each Holder of a Note (or its appointee) wishing to accept the Offer to Repay shall reply, substantially in the form of Schedule 1 to Exhibit 8.1.3(b), indicating whether such Offer to Repay is accepted by the close of business on the fifth (5th) Business Day immediately preceding the Offer Settlement Date.

(c) Two Business Days prior to any Offer Settlement Date, the Company shall deliver to each Holder that has accepted an Offer to Repay pursuant to Section 8.1.3(b), a certificate of a Senior Financial Officer specifying the principal amount of the Notes of such Holder to be repaid on such Offer Settlement Date and the amount of accrued and unpaid interest thereon to the Offer Settlement Date to be paid on such Offer Settlement Date. On each Offer Settlement Date, the Company shall pay to those Holders who have accepted the related Offer to Repay the aggregate amount required to be paid pursuant to this Section 8.1.3.

(d) On the Offer Settlement Date, the Company shall deliver to each Holder that has not accepted an Offer to Repay pursuant to Section 8.1.3(b) a revised Amortization Schedule reflecting the amortization of the aggregate principal amount of Notes remaining outstanding through the Maturity Date.

Section 8.2 Optional Prepayments with Make-Whole Amount. The Company may, at its option, upon notice as provided below, prepay at any time all, or from time to time any part of, the Notes, in an amount, in the case of a partial prepayment, not less than the lesser of 5% of the aggregate principal amount of the Notes then outstanding and [***] at a redemption price equal to (i) 100% of the principal amount so prepaid, plus (ii) accrued and unpaid interest on the Notes being redeemed to the redemption date plus (iii) the Make-Whole Amount determined for the prepayment date with respect to such principal amount. The Company will give each Holder of Notes written notice of each optional prepayment under this Section 8.2 not less than 30 days and not more than 60 days prior to the date fixed for such prepayment. Each such notice shall specify such date (which shall be a Business Day), the aggregate principal amount of the Notes to be prepaid on such date, the principal amount of each Note held by such Holder to be prepaid (determined in accordance with Section 8.3), and the interest to be paid on the prepayment date with respect to such principal amount being prepaid, and shall be accompanied by a certificate of a Senior Financial Officer as to the estimated Make-Whole Amount due in connection with such prepayment (calculated as if the date of such notice were

[***] Confidential Treatment Requested

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the date of the prepayment), setting forth the details of such computation. Two Business Days prior to such prepayment, the Company shall deliver to each Holder of Notes a certificate of a Senior Financial Officer specifying the calculation of such Make-Whole Amount as of the specified prepayment date.

Section 8.3 Allocation of Partial Prepayments. In the case of each partial prepayment of the Notes pursuant to Sections 8.1.1, 8.1.2 and 8.2, the principal amount of the Notes to be prepaid shall be allocated among all of the Notes at the time outstanding in proportion, as nearly as practicable, to the respective unpaid principal amounts thereof not theretofore called for prepayment.

Section 8.4 Maturity; Surrender, Etc. In the case of each prepayment of Notes pursuant to this Article 8, the principal amount of each Note or portion thereof (in the case of a partial prepayment) to be prepaid shall mature and become due and payable on the date fixed for such prepayment, together with interest on such principal amount accrued to such date and the applicable Make-Whole Amount, if any. From and after such date, unless the Company shall fail to pay such principal amount when so due and payable, together with the interest and Make- Whole Amount, if any, as aforesaid, interest on such principal amount shall cease to accrue. Any Note paid or prepaid in full shall be surrendered to the Company and cancelled and shall not be reissued, and no Note shall be issued in lieu of any prepaid principal amount of any Note.

Section 8.5 Purchase of Notes. The Company will not and, to the extent of its power, will not permit any Affiliate to purchase, redeem, prepay or otherwise acquire, directly or indirectly, any of the outstanding Notes except upon the payment or prepayment of the Notes in accordance with the terms of this Agreement and the Notes. The Company will promptly cancel all Notes acquired by it pursuant to any payment or prepayment of Notes pursuant to any provision of this Agreement and no Notes may be issued in substitution or exchange for any such Notes. In the event that any Affiliate of the Company acquires any of the Notes (pursuant to any payment or prepayment of Notes pursuant to any provision of this Agreement or otherwise), such Notes shall be deemed not to be outstanding for purposes of determining whether the Holders of the requisite percentage of the aggregate principal amount of Notes then outstanding have approved or consented to any amendment, waiver or consent to be given under this Agreement or the Notes, or have directed the taking of any action provided herein or in the Notes to be taken upon the direction of the Holders of a specified percentage of the aggregate principal amount of Notes then outstanding.

Section 8.6 Make-Whole Amount.

“Make-Whole Amount” means, with respect to any Note, an amount equal to the excess, if any, of the Discounted Value of the Remaining Scheduled Payments with respect to the Called Principal of such Note over the amount of such Called Principal, provided that the Make-Whole Amount may in no event be less than zero. For the purposes of determining the Make-Whole Amount, the following terms have the following meanings:

“Called Principal” means, with respect to any Note, the principal of such Note that is to be prepaid pursuant to Section 8.2 or has become or is declared to be immediately due and payable pursuant to Section 12.1, as the context requires.

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“Discounted Value” means, with respect to the Called Principal of any Note, the amount obtained by discounting all Remaining Scheduled Payments with respect to such Called Principal from their respective scheduled due dates to the Settlement Date with respect to such Called Principal, in accordance with accepted financial practice and at a discount factor (applied on the same periodic basis as that on which interest on the Notes is payable) equal to the Reinvestment Yield with respect to such Called Principal.

“Reinvestment Yield” means, with respect to the Called Principal of any Note, the sum of (x) 0.50% and (y) the yield to maturity implied by the yield(s) reported as of 10:00 a.m. (New York City time) on the second Business Day preceding the Settlement Date with respect to such Called Principal, on the display designated as “Page PX1” (or such other display as may replace Page PX1) on Bloomberg Financial Markets for the most recently issued actively traded on-the- run U.S. Treasury securities (“Reported”) having a maturity equal to the Remaining Average Life of such Called Principal as of such Settlement Date. If there are no such U.S. Treasury securities Reported having a maturity equal to such Remaining Average Life, then such implied yield to maturity will be determined by (a) converting U.S. Treasury bill quotations to bond equivalent yields in accordance with accepted financial practice and (b) interpolating linearly between the yields Reported for the applicable most recently issued actively traded on-the-run U.S. Treasury securities with the maturities (1) closest to and greater than such Remaining Average Life and (2) closest to and less than such Remaining Average Life. The Reinvestment Yield shall be rounded to the number of decimal places as appears in the interest rate of the applicable Note.

If such yields are not Reported or the yields Reported as of such time are not ascertainable (including by way of interpolation), then “Reinvestment Yield” means, with respect to the Called Principal of any Note, the sum of (x) 0.50% and (y) the yield to maturity implied by the U.S. Treasury constant maturity yields reported, for the latest day for which such yields have been so reported as of the second Business Day preceding the Settlement Date with respect to such Called Principal, in Federal Reserve Statistical Release H.15 (or any comparable successor publication) for the U.S. Treasury constant maturity having a term equal to the Remaining Average Life of such Called Principal as of such Settlement Date. If there is no such U.S. Treasury constant maturity having a term equal to such Remaining Average Life, such implied yield to maturity will be determined by interpolating linearly between (1) the U.S. Treasury constant maturity so reported with the term closest to and greater than such Remaining Average Life and (2) the U.S. Treasury constant maturity so reported with the term closest to and less than such Remaining Average Life. The Reinvestment Yield shall be rounded to the number of decimal places as appears in the interest rate of the applicable Note.

“Remaining Average Life” means, with respect to any Called Principal, the number of years (calculated to the nearest one-twelfth year) obtained by dividing (i) such Called Principal into (ii) the sum of the products obtained by multiplying (a) the principal component of each Remaining Scheduled Payment with respect to such Called Principal by (b) the number of years (calculated to the nearest one-twelfth year), computed on the basis of a 360 day year composed of twelve 30 day months, that will elapse between the Settlement Date with respect to such Called Principal and the scheduled due date of such Remaining Scheduled Payment.

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“Remaining Scheduled Payments” means, with respect to the Called Principal of any Note, all payments of such Called Principal and interest thereon that would be due after the Settlement Date with respect to such Called Principal if no payment of such Called Principal were made prior to its scheduled due date, provided that if such Settlement Date is not a date on which interest payments are due to be made under the terms of the Notes, then the amount of the next succeeding scheduled interest payment will be reduced by the amount of interest accrued to such Settlement Date and required to be paid on such Settlement Date pursuant to Section 8.4 or Section 12.1.

“Settlement Date” means, with respect to the Called Principal of any Note, the date on which such Called Principal is to be prepaid pursuant to Section 8.2 or has become or is declared to be immediately due and payable pursuant to Section 12.1, as the context requires.

ARTICLE 9. AFFIRMATIVE COVENANTS.

The Company covenants that, so long as any of the Notes are outstanding:

Section 9.1 Compliance with Laws. Without limiting Section 10.5, the Company will comply with all laws, ordinances or governmental rules or regulations to which it is subject, including, without limitation, ERISA, the USA PATRIOT Act and the other laws and regulations that are referred to in Section 5.16, and will obtain and maintain in effect all licenses, certificates, permits, franchises and other governmental authorizations necessary to the ownership of its properties or to the conduct of its businesses, in each case to the extent necessary to ensure that non-compliance with such laws, ordinances or governmental rules or regulations or failures to obtain or maintain in effect such licenses, certificates, permits, franchises and other governmental authorizations could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

Section 9.2 Insurance. Without cost to the Secured Parties, the Company shall maintain or cause to be maintained on its behalf in effect at all times the types of insurance required pursuant to Schedule 9.2, in the amounts and on the terms and conditions specified therein, from insurers of the quality specified in such Schedule or other insurance companies of recognized responsibility reasonably satisfactory to the Required Holders.

Section 9.3 Maintenance of Properties. Other than property disposed of in accordance with Section 10.4, the Company shall maintain (a) a good, marketable and insurable (i) leasehold interest in the Sites, (ii) easement interest in the Easements, and (b) good, legal and valid title to all of its other material properties and assets, in each case free of all Liens other than Permitted Liens. The Company shall generally keep all property useful and necessary in its business in good working order and condition.

Section 9.4 Payment of Taxes and Claims. The Company will file all tax returns required to be filed in any jurisdiction and to pay and discharge all taxes shown to be due and payable on such returns and all other taxes, assessments, governmental charges, or levies imposed on it or any of its properties, assets, income or franchises, to the extent the same have become due and payable and before they have become delinquent and all claims for which sums have become due and payable that have or might become a Lien on properties or assets of the

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Company, provided that the Company does not need to pay any such tax, assessment, charge, levy or claim if (i) the amount, applicability or validity thereof is contested by the Company on a timely basis in good faith and in appropriate proceedings, and the Company has established adequate reserves therefor in accordance with GAAP on the books of the Company or (ii) the nonpayment of all such taxes, assessments, charges, levies and claims in the aggregate could not reasonably be expected to have a Material Adverse Effect.

Section 9.5 Corporate Existence, Etc. Subject to Section 10.2, the Company will at all times preserve and keep its limited liability company existence in full force and effect. Subject to Sections 10.2 and 10.4, the Company will at all times preserve and keep in full force and effect all rights and franchises of the Company unless, in the good faith judgment of the Company, the termination of or failure to preserve and keep in full force and effect such right or franchise could not, individually or in the aggregate, have a Material Adverse Effect.

Section 9.6 Books, Records. The Company shall maintain, or cause to be maintained, adequate books, accounts and records with respect to the Company and the Project, in which full and correct entries shall be made of all financial transactions and the assets and business of the Company, and prepare all financial statements required hereunder, in each case in accordance with GAAP (subject, in the case of unaudited financial statements, to changes resulting from audit and normal year-end adjustments and the absence of footnote disclosure) and in compliance with the regulations of any Governmental Authority having jurisdiction thereof.

Section 9.7 Use of Proceeds, Equity Contributions, Project Revenues.

(a) The Company shall use the proceeds of the sale of the Notes only (A) as of the Closing Date, (i) to fully repay any Debt outstanding under the Existing Financing Agreement, (ii) to fund the Debt Service Reserve Account up to the Debt Service Reserve Requirement, (iii) to fund the IDC Reserve Account in an amount equal to [***] (iv) to pay all fees and costs related to the transactions under this Agreement and the other Credit Documents and (v) to pay to the Pledgor the Permitted Distribution and (B) thereafter (i) to pay from the Construction Escrow Account Project Costs in respect of tested and commissioned Systems during the Ramp Up Period and (ii) to pay to the Pledgor the Final Completion Date Distribution.

(b) The Company shall apply Project Revenues and equity contributions as required by Sections 3.3.1, 3.5, 3.7 and 3.9 of the Depositary Agreement.

Section 9.8 Payment.

(a) Credit Documents. The Company shall pay all sums due under this Agreement and the other Credit Documents to which it is a party according to the terms hereof and thereof.

(b) Other Obligations. The Company shall pay, discharge or otherwise satisfy at or before maturity or before they become delinquent, as the case may be, all of its obligations under the Project Documents and all of its other obligations of whatever nature and howsoever arising, except such as may be contested in good faith or as to which a bona fide dispute may exist, provided that adequate cash reserves have been established for the payment thereof in the

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event such dispute were resolved unfavorably to the Company, or the Holders are satisfied in their reasonable discretion that non-payment of such obligation pending the resolution of such contest or dispute will not in any way endanger the Project or result in a Material Adverse Effect or that provision is made to the satisfaction of the Holders in their reasonable discretion for the posting of security (other than the Collateral) for or the bonding of such obligations or the prompt payment thereof in the event that such obligation is payable.

Section 9.9 Additional Direct Agreements. With respect to any Major Project Document entered into after the Closing Date, the Company shall use commercially reasonable efforts to cause the applicable counterparty to execute and deliver to the Collateral Agent a Direct Agreement in substantially the form of Exhibit 4.1.30, with such changes as are reasonably acceptable to the Required Holders (including dispensing with a Direct Agreement if deemed appropriate by the Required Holders).

Section 9.10 Performance of the Major Project Documents. The Company shall perform (to the extent not excused by force majeure events or the nonperformance of the other party and not subject to a good faith dispute) all of its material contractual obligations under the Major Project Documents.

Section 9.11 Utility Regulation. The Company shall take or cause to be taken all necessary or appropriate actions so that (a) (i) the Company will be an Exempt Wholesale Generator, and (ii) the Project will be an Eligible Facility at all times, (b) the Company and the Project shall not be subject to, or shall be exempt from, (A) regulation as a “public–utility company” or “holding company” under PUHCA, or (B) financial, organizational or rate regulation as an “electric utility”, “electric corporation” or any similar Person under the laws of the State of Delaware as presently constituted and as construed by the courts of the State of Delaware, and (c) the Company will be authorized under the FPA to sell electricity at market- based rates with such waivers and blanket authorizations (including blanket authorizations to issue securities under Section 204 of the FPA and 18 C.F.R. Part 34) as customarily are granted to entities with market-based rate authority.

Section 9.12 Construction of the Project. The Company shall cause the Project to be designed, engineered, constructed, developed, installed, equipped, maintained and operated in a good and workmanlike manner and in compliance with all applicable Legal Requirements, Permits and Prudent Electrical Practices (as defined in the MESPA).

Section 9.13 As-Built Survey. Within 60 days after Final Completion of the Project at each Site, the Company shall deliver to the Collateral Agent, each of the Holders and the Independent Engineer a Site survey constituting an as-built survey reflecting all Improvements to the Real Property in connection with the construction of the Project, and each such Site survey shall be subject to approval by the Independent Engineer.

Section 9.14 Operation and Maintenance of Project; Operating Budget.

(a) The Company shall keep the Project, or cause the same to be kept, in good operating condition consistent with the standard of care set forth in the MOMA, all Applicable Permits and Applicable Third Party Permits, Legal Requirements and the Operative Documents, and make or cause to be made all repairs (structural and non-structural, extraordinary or ordinary) necessary to keep the Project in such condition.

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(b) On or prior to November 1 of each year, the Company shall submit an operating plan and a budget, detailed by month, of anticipated revenues and anticipated expenditures, and anticipated expenditures from and deposit of reserves to, the Accounts, such budget to include Debt Service, deposit of reserves to the Debt Service Reserve Account, estimated dividend payments or other distributions, reserves, all anticipated O&M Costs applicable to the Project for the ensuing calendar year (or, in the case of the initial Annual Operating Budget, partial calendar year), to the conclusion of the second full calendar year thereafter and the corresponding total operation and maintenance budget amount for the applicable year from the Base Case Projections (each such annual operating plan and budget, including the initial Annual Operating Budget, an “Annual Operating Budget”). The Company shall prepare a final Annual Operating Budget no less than 30 days in advance of January 1 of each calendar year.

(c) The Company shall operate and maintain the Project, or cause the Project to be operated and maintained, within amounts for (a) any Operating Budget Category not to exceed [***] (on a year-to-date basis) and (b) for all Operating Budget Categories not to exceed [***] (on a year-to-date basis), in each case of the amounts budgeted therefor as set forth in the then-current Annual Operating Budget; provided that subject to Section 10.13, the Company may propose an amendment to the Annual Operating Budget for Required Holders’ approval if at any time the Company cannot comply with this requirement (and the Required Holders shall consider each such amendment in good faith and shall not unreasonably withhold or delay their consent to the approval of any such amendment). Pending approval of any Annual Operating Budget or amendment thereto in accordance with the terms of this Section 9.14, the Company shall use all reasonable efforts to operate and maintain the Project, or cause the Project to be operated and maintained, within the then-current Annual Operating Budget (it being acknowledged that if a particular calendar year’s Annual Operating Budget has not been approved by the time periods provided in Section 9.14(b), then the then-current Annual Operating Budget shall be deemed to be the Annual Operating Budget in effect prior to the delivery of the proposed final Annual Operating Budget pursuant to Section 9.14(b)); provided, that the amounts specified therein shall be increased to the extent specified in the Project Documents.

Section 9.15 Preservation of Rights; Further Assurances.

(a) Major Project Documents. The Company shall maintain in full force and effect, perform (subject to Section 9.8(b)) the obligations of the Company under, preserve, protect and defend the material rights of the Company under and take all reasonable action necessary to prevent termination (except by expiration in accordance with its terms) of each and every Major Project Document, including prosecution of suits to enforce any material right of the Company thereunder and enforcement of any material claims with respect thereto; provided, that upon the occurrence and during the continuance of an Event of Default or, with respect to any Project Document between the Company and any Affiliate, when such Affiliate has acted or failed to act in a manner that with the giving of notice by the Company or the passage of time, an event of default will occur under such Project Document, if the Collateral Agent or the Required Holders request that certain actions be taken and the Company fails to take the requested actions

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within 10 Business Days, the Holders or the Collateral Agent may enforce in its own name or in the Company’s name, such rights of the Company (if and to the extent not prohibited by any Governmental Rule), in addition to such rights as may be more particularly provided in the Security Agreement and the other Credit Documents.

(b) Preservation of Collateral. From time to time promptly, upon the reasonable request of the Collateral Agent or the Required Holders, the Company shall execute, acknowledge or deliver, or cause the execution, acknowledgment and delivery of, and thereafter register, file or record, or cause to be registered, filed or recorded in an appropriate governmental office, all such notices, statements, instruments and other documents (including any memorandum of lease or other agreement, financing statement, continuation statement, certificate of title or estoppel certificate) supplemental to or confirmatory of the Collateral Documents, and take such other steps as may be deemed by the Collateral Agent necessary or advisable to render fully valid and enforceable under all applicable laws the rights, liens and priorities of the Secured Parties with respect to all Collateral and other security from time to time furnished under the Credit Documents or intended to be so furnished, or for the continued validity, perfection and priority of the Liens on the Collateral covered thereby subject to no other Liens except as permitted by the applicable Collateral Document, or obtain any consents or waivers as may be necessary or appropriate in connection therewith, in each case in such form and at such times as shall be reasonably requested by the Required Holders or the Collateral Agent, and pay all reasonable fees and expenses (including reasonable attorneys’ fees) incident to compliance with this Section 9.15(b). Upon the exercise by the Required Holders or the Collateral Agent of any power, right, privilege or remedy pursuant to any Credit Document which requires any consent, approval, registration, qualification or authorization of any Governmental Authority, the Company shall execute and deliver all applications, certifications, instruments and other documents and papers that any Holder or the Collateral Agent may require. If the Required Holders or the Collateral Agent determine that they are required by law or regulation to have appraisals prepared in respect of the Real Property, the Company shall provide to each of the Holders appraisals that satisfy the applicable requirements of the Real Estate Appraisal Reform Amendments of FIRREA and are otherwise in form and substance satisfactory to the Required Holders.

(c) Enforcement of Affiliate Agreements. If at any time the Company is entitled to make a claim or pursue any other remedy under the MESPA, MOMA or the Administrative Services Agreement, the Company shall make a claim thereunder for liquidated damages or, as applicable, to have one or more Systems repaired, replaced, or repurchased by the Sponsor, or pursue such other remedy, as applicable. The Company shall otherwise enforce all of its rights under the MESPA, MOMA and Administrative Services Agreement as diligently as if its counterparty were not an Affiliate.

(d) Additional Collateral. If the Company shall at any time acquire any real property or leasehold or other interest in real property not covered by the Mortgage, then promptly upon such acquisition, the Company shall execute, deliver and record a supplement to the Mortgage, reasonably satisfactory in form and substance to the Required Holders, subjecting the real property or leasehold or other interests to the Lien and security interest created by the Mortgage. The Company shall obtain an appropriate endorsement or supplement to, as applicable, the Title Policy, insuring the Lien of the Collateral Agent in such additional property, subject only to Liens and other exceptions to title reasonably agreed by Collateral Agent of a type similar to Title Exceptions.

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(e) Further Assurances. The Company shall execute and deliver all documents as shall be reasonably required or that the Collateral Agent or any Holder shall reasonably request in connection with the rights and remedies of the Collateral Agent and the Holders of the Notes under the Operative Documents, and perform, such other reasonable acts as may be necessary to carry out the intent of the Credit Documents.

(f) Applicable Permits. The Company shall obtain and maintain all Applicable Permits.

(g) Tariff Compliance. The Company shall (a) take all actions necessary to comply with and maintain its eligibility as a QFCP Generator under the Tariff, (b) maintain as true the conditions set forth in Sections 4.1.33, 4.1.35 and 4.2.7, (c) take all actions necessary to invoice and collect the maximum amounts available under the Tariff, including, if applicable, by declaring a Forced Outage Event or a Force Majeure Event (as defined in the Tariff), (d) procure natural gas feedstock solely pursuant to the Gas Tariff.

Section 9.16 Forced Outage Event.

The Company shall declare a Forced Outage Event if permitted under the Tariff if:

(a) Sponsor has reached the System Liability Cap;

(b) The Project fails to maintain the Efficiency Bank in a positive balance;

(c) The Project output is such that there has been a failure to meet the Power Performance Warranty during a Thirty-Day Power Performance Warranty Period, as such terms are defined in the MESPA and MOMA (i.e. [***]); or

(d) A Bankruptcy Event occurs with respect to the Sponsor or the Sponsor shall cease to carry on its business.

Section 9.17 Event of Eminent Domain. If an Event of Eminent Domain shall occur with respect to any Collateral, the Company shall (a) diligently pursue all its rights to compensation against the relevant Governmental Authority in respect of such Event of Eminent Domain, (b) not, without the consent of the Required Holders (which consent shall not be unreasonably withheld or delayed), compromise or settle any claim against such Governmental Authority in an amount in excess of [***] individually and [***] in the aggregate, and (c) pay or apply all Eminent Domain Proceeds in accordance with Section 3.7 of the Depositary Agreement. The Company consents to, and agrees not to object to or otherwise impede or impair, the participation of the Holders and/or the Collateral Agent in any expropriation proceedings involving an amount in excess of [***] individually and [***] in the aggregate, and the Company shall from time to time deliver to the Holders and the Collateral Agent all documents and instruments requested by them or it to permit such participation.

[***] Confidential Treatment Requested

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Section 9.18 Environmental Laws.

The Company shall (a) comply with, and ensure compliance by all tenants, contractual counterparties, licensees and invitees, if any, with all applicable Hazardous Substance Laws and obtain and comply in all material respects with, and maintain, and ensure that all tenants, contractual counterparties, licensees and invitees obtain and comply in all material respects with, and maintain all Permits required by applicable Hazardous Substance Laws; (b) conduct and complete, or cause to be conducted and completed, all investigations, studies, sampling and testing, and all clean-up, remedial, removal, recovery and other actions required pursuant to Hazardous Substance Laws or otherwise as necessary to prevent itself or any Secured Party from incurring any material liability; (c) promptly comply in all material respects with all orders and directives of all Governmental Authorities in respect of Hazardous Substance Laws, except to the extent that the same are being contested in good faith by appropriate proceedings; (d) exercise care, custody and control over the Sites and the Project in such manner as not to pose a material or unreasonable hazard to the environment, health or safety in general; and (e) give (and shall cause the Operator and the contractors, to the extent applicable, to give) due attention to the protection and conservation of the environment in the implementation of each aspect of the Project, all in accordance with applicable Hazardous Substance Laws, Permits and Legal Requirements, and good industry practices.

Section 9.19 Independent Consultants. The Company shall (a) cooperate in all reasonable respects with the Independent Consultants and (b) ensure that each Independent Consultant is provided with all information reasonably requested by such consultant with respect to the financing, construction or operation of the Project and will exercise due care to ensure that any factual information which it may supply to such consultant is materially accurate in all respects, and not, by omission of information or otherwise, misleading in any material respect at the time such information is provided, to the extent that such consultant relied on such information in preparing its report.

Section 9.20 Partial Completion Buydown. In the event that less than 30 MW of nameplate capacity of Systems have achieved COD on or prior to the Date Certain, then the Company shall within ten Business Days re-calculate the size of the Notes under the Base Case Projections by (a) reducing the Project capacity assumption therein to the actual Project nameplate capacity, (b) maintaining DSCR at a [***] minimum through the Maturity Date under the base case, (c) maintaining DSCR at [***] minimum through the Maturity Date under the Forced Outage Tariff Structure, and (d) otherwise changing no assumptions in the Base Case Projections. The Company’s calculations shall be subject to review and approval by the Required Holders (in consultation with the Independent Engineer). Any amount by which, after such review and approval, the original total principal amount of the Notes exceeds the revised total principal amount of the Notes is the “Buydown Amount.” The Company shall prepay the Notes in the aggregate amount of the Buydown Amount within 30 days of notification from the Required Holders (in consultation with the Independent Engineer) that the Company’s re-calculation has been approved by the Required Holders (in consultation with the Independent Engineer).

Section 9.21 Separateness. The Company shall (a) maintain entity records and books of account separate from those of any other entity which is an Affiliate of the Company, (b) not

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commingle its funds or assets with those of any other entity which is an Affiliate of the Company, (c) provide that its governing body will hold all appropriate meetings to authorize and approve the Company’s actions, which meetings will be separate from those of other entities and (d) comply with the separateness provisions set forth in the Governing Documents of the Company.

Section 9.22 Rating. The Company, no less frequently than once per year (which year shall commence on the Closing Date (in the case of the first year) or the applicable anniversary of the Closing Date (in the case of each subsequent year) and end on the day prior to the immediately following anniversary of the Closing Date), obtain from the Rating Agency a ratings letter assigning a credit rating to the Notes (provided that there will be no minimum level required for such rating).

Section 9.23 Rating Event. In the event that, after the Closing Date, (i) the Sponsor obtains an investment grade rating and (ii) the “Forced Outage Event” payment provisions of the Tariff cease to be in effect (collectively, a “Rating Event”), at the Holders’ option, communicated to the Company within 30 days of the occurrence of such Rating Event, either (A) an investment grade guarantee securing the obligations of the Company under the Notes will be provided by the Sponsor, such guarantee to be in form and substance satisfactory to the Required Holders or (B) the Company shall make an Offer to Repay all of the Notes then outstanding in accordance with Section 8.1.3.

Section 9.24 Debt Service Coverage Ratio. No later than 10 days after each Repayment Date, the Company shall calculate and deliver to the Holders the DSCR for the calculation period for such Repayment Date. The calculations of the DSCR hereunder shall be used in determining the application and distribution of funds pursuant to Section 10.10 hereunder and Section 3.8 of the Depositary Agreement.

ARTICLE 10. NEGATIVE COVENANTS.

From the date of this Agreement until the Closing and thereafter, so long as any of the Notes are outstanding, the Company covenants that:

Section 10.1 Transactions with Affiliates. The Company shall not directly or indirectly enter into any transaction or series of transactions relating to the Project with or for the benefit of an Affiliate without the prior approval of the Required Holders, except for (a) the limited liability company agreement of the Company and the Operative Documents as in effect on the Closing Date and (b) as otherwise expressly permitted or contemplated by the Credit Documents.

Section 10.2 Dissolution; Merger.

The Company shall not (a) wind up, liquidate or dissolve its affairs, (b) combine, merge or consolidate with or into any other entity, or (c) purchase or otherwise acquire all or substantially all of the assets of any Person.

Section 10.3 Line of Business; Changes. The Company shall not (a) change the nature of its business or expand its business beyond the business contemplated in the Operative

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Documents or activities incidental thereto or take any action, whether by acquisition or otherwise, which would constitute or result in any material alteration to the nature of such business; (b) establish, create or acquire any Subsidiaries; or (c) directly or indirectly, change its legal form or any of its Governing Documents (including by the filing or modification of any certificate of designation) or any agreement to which it is a party with respect to its limited liability company interest or otherwise terminate, amend or modify any such Governing Document or agreement or any provision thereof, or enter into any new agreement with respect to its limited liability company interest, other than any such amendments, modifications or changes or such new agreements to which the prior consent of the Required Holders and the Collateral Agent (if appropriate) has been obtained or which are not adverse in any material respect to the interests of the Holders of the Notes.

Section 10.4 Sale or Lease of Assets. The Company shall not sell, lease, assign, transfer or otherwise dispose of assets, whether now owned or hereafter acquired, except (a) in the ordinary course of its business and at fair market value, (b) to the extent that such asset is unnecessary, worn out or no longer useful or usable in connection with the operation or maintenance of the Project, at fair market value, or (c) as expressly contemplated by the Operative Documents (including, without limitation, in connection with the return of any System to Sponsor as provided in the MESPA or MOMA). Upon any such sale, lease, assignment, transfer or other disposition of any such assets, all Liens in favor of Collateral Agent relating to such asset shall be released. The Company shall not enter into any sale and leaseback transactions.

Section 10.5 Terrorism Sanctions Regulations. The Company will not and will not permit any Controlled Entity to (a) become a Blocked Person or (b) have any investments in or engage in any dealings or transactions with any Blocked Person if such investments, dealings or transactions would cause any Holder of a Note to be in violation of any laws or regulations that are applicable to such Holder.

Section 10.6 Liens. The Company will not create, incur, assume or permit to exist (upon the happening of a contingency or otherwise) any Lien on or with respect to any property or asset (including without limitation, any document or instrument in respect of goods or account receivable) of the Company, whether now owned or hereafter acquired, or any income or profits therefrom, or assign or otherwise convey any right to receive income or profits, except Permitted Liens.

Section 10.7 Contingent Obligations. Except as provided in the Credit Documents, the Company shall not become liable as a surety, guarantor, accommodation endorser or otherwise, for or upon the obligation of any other Person or incur any Contingent Obligations; provided, that this Section 10.7 shall not be deemed to prohibit or otherwise limit the occurrence of Permitted Debt.

Section 10.8 Debt. The Company shall not incur, create, assume or permit to exist, directly or indirectly, any Debt except Permitted Debt.

Section 10.9 Investments. The Company shall not (a) make any investments (whether by purchase of stocks, bonds, notes, obligations or other securities, loan, extension of credit,

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advance or otherwise) other than Permitted Investments or make any capital contribution to any Person; or (b) other than Permitted Investments, own any equity interest in, lend money, extend credit or make advances to, or any deposits with (other than deposits or advances in relation to the payment for services in the ordinary course of business), or make deposits with, any Person other than Depositary.

Section 10.10 Restricted Payments.

Other than the Permitted Distribution and the Final Completion Date Distribution, the Company shall not directly or indirectly, make or declare any distribution, including but not limited to any repurchase of any equity interest of the Company (in cash, property or obligation) on, or any payment on account of, any interest in the Company (not including the Cash Grant proceeds), unless the following conditions have been satisfied (the “Distribution Conditions”):

(a) such distribution will occur no later than 15 days after a Repayment Date and will be made from amounts on deposit in the Distribution Suspense Account;

(b) no Default or Event of Default has occurred and is continuing as of the date of, or will result from, such distribution;

(c) the amount on deposit in the Debt Service Reserve Account is equal to the Debt Service Reserve Requirement; and

(d) the DSCR for the immediately preceding 12-month period (or, during the initial 12 months following the Final Completion Date, the actual number of complete quarters since the Final Completion Date) and as projected for the immediately succeeding 12-month period is greater than or equal to 1.25:1.

Section 10.11 Margin Loan Regulations. The Company shall not directly or indirectly apply any part of the proceeds of the Notes, any cash equity contributions received by the Company or other funds or revenues to the “buying,” “carrying” or “purchasing” of any margin stock within the meaning of Regulations T, U or X of the Federal Reserve Board, or any regulations, interpretations or rulings thereunder.

Section 10.12 Partnership, Separateness Etc. The Company shall not (a) become a general or limited partner in any partnership or a joint venturer in any joint venture, (b) create and hold stock in any Subsidiary, (c) engage in any business other than owning and operating the Project and related activities, (d) fail to maintain separate bank accounts and separate books of account, (e) fail to cause its liabilities to be readily distinguishable from the liabilities of the Sponsor and the other Affiliates of the Sponsor, (f) fail to conduct its business solely in its own name in a manner not misleading to other Persons as to its identity, or (g) fail to make all oral and written communications, including letters, invoices, purchase orders, contracts, statements, and applications solely in its name.

Section 10.13 Amendments. The Company shall not amend, modify, supplement or waive, accept, or permit or consent to the termination, amendment, modification, supplement or waiver (including any waiver (or refund) of damages (liquidated or otherwise) payable by any contractor under any Major Project Document) of, any provision of, or give any material

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consent, including a consent to appointment of a Service Provider under the MOMA (as such term is defined in the MOMA) or any other subcontractor under the MESPA or MOMA (each such termination, amendment, modification, supplement, waiver or consent, inclusive of any applicable change orders, being referred to herein as a “Project Document Modification”) under any of the Major Project Documents.

Section 10.14 Name and Location; Fiscal Year. The Company shall not change its name, its jurisdiction of organization, its organization identification number, its fiscal year or, except as required by GAAP, its accounting policies or reporting practices. The Company shall not change the location of its principal place of business unless it has given written notice to the Collateral Agent, specifying the location of the new principal place of business, not less than 30 days prior to the date such change in the location of the Company’s principal place of business is to be effective.

Section 10.15 Hazardous Substances. The Company shall not Release (or suffer the Release) into the environment any Hazardous Substances in violation of any Hazardous Substance Laws, Legal Requirements or Applicable Permits.

Section 10.16 Use of Sites. Subject to existing third party easements, rights of way, or other third party property rights over the Sites, the Company shall not use, maintain, operate or occupy, or allow the use, maintenance, operation or occupancy of, any portion of the Project or either Site for any purpose (a) which may (i) constitute a public or private nuisance or (ii) make void, voidable, or cancelable, or materially increase the premium of, any insurance policies then in force with respect to all or a portion of the Project, or (b) that could reasonably be expected to have a Material Adverse Effect.

Section 10.17 Project Documents. The Company shall not enter into or become a party to any Additional Project Document without (a) obtaining the consent from the Required Holders (unless the aggregate value thereof shall be less than [***] in which case such consent shall not be required), (b) using commercially reasonable efforts to obtain from its counterparty a Direct Agreement in the form of Exhibit 4.1.30 or as otherwise approved by the Required Holders in advance, and (c) providing an executed copy thereof to each of the Required Holders and the Collateral Agent within five Business Days after execution.

Section 10.18 Assignment by Third Parties. To the extent the Company’s consent is required, without prior consent of the Required Holders, the Company shall not consent to the assignment of any obligations under any Major Project Document by any counterparty thereto.

Section 10.19 Acquisition of Real Property. The Company shall not acquire or lease any real property or other interest in real property (excluding the acquisition of any easements or the acquisition (but not the exercise) of any options to acquire any such interests in real property the value of which is lower than [***] individually or [***] in the aggregate) other than the Sites, Easements and other interests in real property acquired on or prior to the Closing Date.

Section 10.20 ERISA. The Company shall not sponsor any employee benefit plans subject to Title I or Title IV of ERISA.

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Section 10.21 Lease Obligations. The Company shall not create, incur, assume or suffer to exist any obligations as lessee for the rent or hire of any property under leases other than the Leases.

Section 10.22 Disputes. The Company shall not agree, authorize or otherwise consent to any proposed settlement, resolution or compromise of any litigation, arbitration or other dispute with any Person without the prior authorization of the Required Holders if such proposed settlement, resolution or compromise could reasonably be expected to result in a Material Adverse Effect.

Section 10.23 Assignment. The Company shall not assign its rights or obligations under any Credit Document or any Major Project Document to any Person, except pursuant to the Collateral Documents.

Section 10.24 Accounts. The Company shall not maintain, establish or use any account (other than the Accounts), other than (i) the Cash Grant Account, (ii) the System Refund Account and (iii) an operating account with a balance not to exceed [***].

Section 10.25 Regulations; Tariff.

(a) The Company shall not cause or permit, or take any action or inaction that would result in, loss of (a) the Project’s status as an Eligible Facility and its certification as an Exempt Wholesale Generator, or (b) its authorization to sell energy, capacity and ancillary services at market-based rates.

(b) The Company shall not take any action that would result in its loss of eligibility as a QFCP Generator under the Tariff.

(c) The Company shall not consent to any modification, amendment, repeal, waiver or suspension of the Tariff.

Section 10.26 Capital Expenditures. The Company shall not make any Capital Expenditures other than Capital Expenditures set forth in the Project Budget or in the then current Annual Operating Budget that are reasonably required in order to operate and maintain the Project in accordance with the Legal Requirements and the Major Project Documents.

ARTICLE 11. EVENTS OF DEFAULT.

An “Event of Default” shall exist if any of the following conditions or events shall occur and be continuing:

Section 11.1 Failure to Make Payments.

(a) The Company defaults in the payment of any principal or Make-Whole Amount, if any, on any Note for more than one Business Day after the same becomes due and payable, whether at maturity or at a date fixed for prepayment or by declaration or otherwise; or

(b) The Company defaults in the payment of any interest on any Note for more than five Business Days after the same becomes due and payable.

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Section 11.2 Misstatements. Any representation or warranty made in writing by or on behalf of the Company or by any officer of the Company in this Agreement or in any writing furnished in connection with the transactions contemplated hereby proves to have been false or incorrect in any material respect on the date as of which made.

Section 11.3 Breach of Terms of Agreement.

(a) the Company defaults in the performance of or compliance with any term contained in Sections 7.2(c), 9.2, 9.5, 9.7, 9.15(f), 9.16, 9.20, 9.23 and Article 10; or

(b) the Company defaults in the performance of or compliance with any term contained herein (other than those referred to in Sections 11.1, 11.2 or 11.3(a)) and such default is not remedied within 30 days after the earlier of (i) a Responsible Officer of the Company obtaining Knowledge of such default and (ii) the Company receiving written notice of such default from any Holder of a Note (any such written notice to be identified as a “notice of default” and to refer specifically to this Section 11.3); provided, that, if (A) such failure does not consist principally of the failure to pay money and cannot be cured within such 30 day period, (B) such failure is susceptible of cure within 90 days, (C) the Company is proceeding with diligence and good faith to cure such failure, (D) the existence of such failure has not had and could not, after considering the nature of the cure, be reasonably expected to have a Material Adverse Effect, and (E) the Holders shall have received an officer’s certificate signed by a Responsible Officer of the Company to the effect of clauses (A), (B), (C) and (D) above and stating what action the Company is taking to cure such failure, then such 30-day cure period shall be extended to such date, not to exceed a total of 90 days, as shall be necessary for the Company diligently to cure such failure.

(c) any Credit Party shall fail to perform or observe any covenant to be performed or observed by it under any Credit Document to which it is a party and not otherwise specifically provided for in this Article 11, and such failure shall continue unremedied for a period of 10 days after such Credit Party becomes aware thereof, provided that with respect to the Equity Contribution Agreement only, such period shall be 5 Business Days.

Section 11.4 Defaults Under Other Debt. (i) the Company is in default (as principal or as guarantor or other surety) in the payment of any principal of or premium or make-whole amount or interest on any Debt that is outstanding in an aggregate principal amount of at least [***] beyond any period of grace provided with respect thereto, or (ii) the Company is in default in the performance of or compliance with any term of any evidence of any Debt in an aggregate outstanding principal amount of at least [***] or of any mortgage, indenture or other agreement relating thereto or any other condition exists, and as a consequence of such default or condition such Debt has become, or has been declared (or one or more Persons are entitled to declare such Debt to be), due and payable before its stated maturity or before its regularly scheduled dates of payment, or (iii) as a consequence of the occurrence or continuation of any event or condition (other than the passage of time or the right of the Holder of Debt to convert such Debt into equity interests), (x) the Company has become obligated to purchase or

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repay Debt before its regular maturity or before its regularly scheduled dates of payment in an aggregate outstanding principal amount of at least [***] or (y) one or more Persons have the right to require the Company so to purchase or repay such Debt.

Section 11.5 Bankruptcy; Insolvency. Any Bankruptcy Event shall occur with respect to any Major Project Participant (other than DPL and PJM) so long it shall have material outstanding or unperformed obligations under any Operative Document to which is a Party; provided that a Bankruptcy Event shall occur with respect to the Tax Equity Investors only if either (i) a Bankruptcy Event has occurred with respect to [***] or (ii) 30 days have elapsed since a claim for payment has been made under the [***] Guaranty and [***] has not paid any amount due under such [***] Guaranty within such period of time.

Section 11.6 Judgments. A final judgment or judgments for the payment of money aggregating in excess of [***] are rendered against the Company and which judgments are not (i) fully covered by insurance and the insurer has been notified of, and has not disputed the claim for the payment of, the amount of the judgment or (ii) within 60 days after entry thereof, bonded, discharged or stayed pending appeal, or are not discharged within 60 days after the expiration of such stay.

Section 11.7 ERISA. If (i) any Plan subject to Title IV of ERISA shall fail to satisfy the minimum funding standards of ERISA or the Code for any plan year or part thereof or a waiver of such standards or extension of any amortization period is sought or granted under section 412 of the Code, (ii) a notice of intent to terminate any Plan shall have been or is reasonably expected to be filed with the PBGC or the PBGC shall have instituted proceedings under ERISA section 4042 to terminate or appoint a trustee to administer any Plan subject to Title IV of ERISA or the PBGC shall have notified the Company or any ERISA Affiliate that a Plan may become a subject of any such proceedings, (iii) the aggregate “amount of unfunded benefit liabilities” (within the meaning of section 4001(a)(18) of ERISA) under all Plans, determined in accordance with Title IV of ERISA, shall exceed the aggregate current value of the assets under all Plans, (iv) the Company or any ERISA Affiliate shall have incurred or is reasonably expected to incur any liability pursuant to Title I or IV of ERISA or the penalty or excise tax provisions of the Code relating to employee benefit plans, (v) the Company or any ERISA Affiliate withdraws from any Multiemployer Plan, or (vi) the Company establishes or amends any employee welfare benefit plan that provides post-employment welfare benefits in a manner that would increase the liability of the Company thereunder; and any such event or events described in clauses (i) through (vi) above, either individually or together with any other such event or events, could reasonably be expected to have a Material Adverse Effect.

As used in Section 11.7 the terms “employee benefit plan” and “employee welfare benefit plan” shall have the respective meanings assigned to such terms in Section 3 of ERISA.

Section 11.8 Ownership of the Project. The Company shall cease to be the sole owner of the Project.

Section 11.9 Loss of Collateral. (a) All or any material portion of the Collateral is damaged, seized or appropriated without appropriate insurance proceeds (subject to the underlying deductible) or without fair value being paid therefor so as to allow replacement of

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such Collateral or prepayment of the Notes and to allow the Company to continue satisfying its obligations hereunder and under the other Operative Documents, or (b) any Person other than Collateral Agent attaches or institutes proceedings to attach all or any material part of the Collateral, and any such proceeding or attachment or any judgment Lien against any such Collateral (other than Permitted Liens) (i) remains unlifted, unstayed or undischarged for a period of 30 days or (ii) is upheld in a final nonappealable judgment of a court of competent jurisdiction.

Section 11.10 Abandonment. At any time the Company shall announce that (i) it is abandoning the Project or (ii) the Project shall be abandoned or operation thereof shall be suspended for a period of more than 30 consecutive days for any reason (other than force majeure); provided, that none of (A) scheduled maintenance of the Project, (B) repairs to the Project, whether or not scheduled, or (C) a forced outage or scheduled outage of the Project, shall constitute abandonment or suspension of the Project, so long as the Company is diligently attempting to end such suspension.

Section 11.11 Security. Any of the Collateral Documents, once executed and delivered, shall fail to provide to the Collateral Agent the Liens, first priority security interest (subject to Permitted Liens described in clauses (a) and (e) of the definition thereof and, to the extent required by Governmental Rule, clauses (b) and (c) of the definition thereof), rights, titles, interest, remedies permitted by law, powers or privileges intended to be created thereby (including the priority intended to be created thereby) or, except in accordance with its terms, cease to be in full force and effect, or the first priority or validity thereof or the applicability thereof to the Notes or any other Obligations purported to be secured or guaranteed thereby or any part thereof shall be disaffirmed by or on behalf of the Company.

Section 11.12 Regulatory Status.

(a) An Adverse PUHCA Event shall occur that could reasonably be expected to have a Material Adverse Effect and within 30 days thereafter such Adverse PUHCA Event has not been cured.

(b) If loss of the Company’s market-based rate authority could reasonably be expected to have a Material Adverse Effect, (i) the Company shall have tendered notice to FERC that it seeks to cancel its market-based rate authority, or (ii) FERC shall have issued an order revoking the Company’s market-based rate authority.

(c) If the Company’s failure to comply with any requirements under the FPA applicable to a “public utility” with authority to sell at wholesale electric power at market-based rates could reasonably be expected to have a Material Adverse Effect, FERC shall have issued an order finding that the Company has not complied with such requirement under the FPA applicable to a “public utility” with authority to sell at wholesale electric power at market-based rates.

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Section 11.13 Loss of or Failure to Obtain Applicable Permits.

(a) The Company shall fail to obtain any Permit on or before the date that such Permit becomes an Applicable Permit with respect to the Project, and such failure could reasonably be expected to have a Material Adverse Effect.

(b) Any Applicable Permit shall be materially modified (other than modifications contemplated in a Project Document requested by the Company), revoked, canceled or not renewed by the issuing agency or other Governmental Authority having jurisdiction (or otherwise ceases to be in full force and effect) and within 45 days thereafter the Company is not able to demonstrate to the reasonable satisfaction of the Required Holders that such modification of, revocation of, cancellation of, failure to renew, or failure to maintain in full force and effect such Permit could not reasonably be expected to have a Material Adverse Effect.

Section 11.14 Credit Document Matters. At any time after the execution and delivery thereof, (a) any Credit Document or any material provision hereof or thereof (i) ceases to be in full force and effect or to be valid and binding on any party thereto other than a Secured Party (other than by reason of the satisfaction in full of the Obligations or any termination of a Credit Document in accordance with the terms hereof or thereof), or is assigned or otherwise transferred (except as otherwise required or expressly permitted hereunder or thereunder) or is prematurely terminated by any party thereto (other than a Secured Party), (ii) is or becomes invalid, illegal or unenforceable, or any party hereto or thereto (other than a Secured Party) repudiates or disavows or takes any action to challenge the validity or enforceability of such agreement, (iii) is declared null and void by a Governmental Authority of competent jurisdiction, or (iv) fails to or ceases to provide the rights, powers and privileges purported to be created thereby or hereby, or (b) any authorization or approval by any Governmental Authority necessary to enable any Credit Party to comply with or perform its Obligations or otherwise perform in accordance with the terms of the Credit Documents shall be revoked, withdrawn or withheld, or shall otherwise fail to be issued or remain in full force and effect, and the failure of such authorization or approval from such Governmental Authority, other than with respect to the Tariff, is reasonably expected to have a Material Adverse Effect.

Section 11.15 Project Document Matters.

(a) Company’s Defaults. The Company shall be in breach of, or in default of, any material obligation under a Major Project Document and is not otherwise waived by the counterparty of such Major Project Document and such breach or default shall not be remediable or, if remediable, shall continue unremedied for the lesser of (i) a period of 30 days or (ii) such period of time (without giving effect to any extension given to Collateral Agent under any applicable Direct Agreement with respect thereto) under such Major Project Document which the Company has available to it in which to remedy such breach or default.

(b) Third Party Defaults. Any Person other than the Company shall be in breach of, in default under a Major Project Document and such breach or default (i) shall not be remediable or, if remediable, shall continue unremedied for a period beyond the applicable grace period and (ii) has had or could reasonably be expected to have a Material Adverse Effect.

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(c) Third Party Direct Agreements. (i) Any Person other than the Company shall disaffirm or repudiate in writing its material obligations under any Direct Agreement, (ii) any representation or warranty made by any Person other than the Company in a Direct Agreement shall be untrue or misleading in any material respect as of the time made and such untrue or misleading representation or warranty could reasonably be expected to result in a Material Adverse Effect, or (iii) a Person other than the Company shall breach any material covenant of a Direct Agreement and such breach or default shall not be remediable or, if remediable, shall continue unremedied for a period of 30 days from the time the Company obtains Knowledge of such breach.

(d) Termination. At any time after the execution and delivery thereof, any Major Project Document or any material provision hereof or thereof (i) ceases to be in full force and effect or to be valid and binding on any party thereto (other than by reason of the satisfaction of performance of such agreement or provision or any other any termination thereof in accordance with the terms thereof), or is assigned or otherwise transferred (except as otherwise required or expressly permitted hereunder or thereunder) or is prematurely terminated by any party thereto, (ii) is or becomes invalid, illegal or unenforceable, or any party hereto or thereto repudiates or disavows or takes any action to challenge the validity or enforceability of such agreement, (iii) is declared null and void by a Governmental Authority of competent jurisdiction or written notice is given by any Governmental Authority or applicable counterparty contesting the validity or enforcement thereof, or (iv) fails to or ceases to provide the rights, powers and privileges purported to be created thereby or hereby.

Section 11.16 Eminent Domain. There shall have occurred any act or series of acts attributable to any Governmental Authority which (a) in the reasonable judgment of the Required Holders has the effect of depriving the Secured Parties of their fundamental rights as creditors in respect of the Credit Documents, (b) confiscates, expropriates, nationalizes or otherwise acquires compulsorily the ownership or control by the Company of all or any material part of the Project, or (c) in the reasonable judgment of the Required Holders has the effect of materially impairing the value of any Major Project Document, and such act or series of acts continues uncured for 90 days or more.

Section 11.17 Cash Grant Recapture.

(a) During the Recapture Period, (i) the Company becomes a Disqualified Person or causes, permits or consents to any transfer of any direct or indirect equity, ownership, profits or other interest in the Company or in any Project assets to a Disqualified Person or (ii) an interest in any Project assets is transferred by the Company to a Person that has not agreed to be jointly liable with the Company for Recapture Liabilities, in each case resulting in Recapture Liability that is not subject to the Recapture Indemnities and Guarantees that has not been breached by the applicable indemnitor thereunder; or

(b) any Recapture Liability has been assessed, imposed or levied against the Company and either (i) such Recapture Liability is not subject to a Recapture Indemnity and Guarantee or (ii) any indemnitor under the Recapture Indemnities and Guarantees is in breach thereof.

Section 11.18 Final Completion. Final Completion does not occur on or prior to the Date Certain (including upon payment of the Buydown Amount, in the event payment of the Buydown Amount will result in Final Completion being achieved).

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ARTICLE 12. REMEDIES ON DEFAULT, ETC.

Section 12.1 Acceleration. (a) If an Event of Default with respect to the Company described in Section 11.5 has occurred, all the Notes then outstanding shall automatically become immediately due and payable.

(b) If any other Event of Default has occurred and is continuing, any Holder or Holders of more than 25% in principal amount of the Notes at the time outstanding may at any time at its or their option, by notice or notices to the Company, declare all the Notes then outstanding to be immediately due and payable.

(c) If any Event of Default described in Section 11.1 has occurred and is continuing, any Holder or Holders of Notes at the time outstanding affected by such Event of Default may at any time, at its or their option, by notice or notices to the Company, declare all the Notes held by it or them to be immediately due and payable.

Upon any Notes becoming due and payable under this Section 12.1, whether automatically or by declaration, such Notes will forthwith mature and the entire unpaid principal amount of such Notes, plus (x) all accrued and unpaid interest thereon (including, but not limited to, interest accrued thereon at the Default Rate) and (y) the Make-Whole Amount determined in respect of such principal amount (to the full extent permitted by applicable law), shall all be immediately due and payable, in each and every case without presentment, demand, protest or further notice, all of which are hereby waived. The Company acknowledges, and the parties hereto agree, that each Holder of a Note has the right to maintain its investment in the Notes free from repayment by the Company (except as herein specifically provided for) and that the provision for payment of a Make-Whole Amount by the Company in the event that the Notes are prepaid or are accelerated as a result of an Event of Default, is intended to provide compensation for the deprivation of such right under such circumstances.

Section 12.2 Other Remedies. If any Default or Event of Default has occurred and is continuing, and irrespective of whether any Notes have become or have been declared immediately due and payable under Section 12.1, the Holder of any Note at the time outstanding may proceed to protect and enforce the rights of such Holder by an action at law, suit in equity or other appropriate proceeding, whether for the specific performance of any agreement contained herein or in any Note, or for an injunction against a violation of any of the terms hereof or thereof, or in aid of the exercise of any power granted hereby or thereby or by law or otherwise.

Section 12.3 Rescission. At any time after any Notes have been declared due and payable pursuant to Section 12.1(b) or (c), the Holders of not less than 76% in principal amount of the Notes then outstanding, by written notice to the Company, may rescind and annul any such declaration and its consequences if (a) the Company has paid all overdue interest on the Notes, all principal of and Make-Whole Amount, if any, on any Notes that are due and payable and are unpaid other than by reason of such declaration, and all interest on such overdue principal and

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Make-Whole Amount, if any, and (to the extent permitted by applicable law) any overdue interest in respect of the Notes, at the Default Rate, (b) neither the Company nor any other Person shall have paid any amounts which have become due solely by reason of such declaration, (c) all Events of Default and Defaults, other than non-payment of amounts that have become due solely by reason of such declaration, have been cured or have been waived pursuant to Article 17, and (d) no judgment or decree has been entered for the payment of any monies due pursuant hereto or to the Notes. No rescission and annulment under this Section 12.3 will extend to or affect any subsequent Event of Default or Default or impair any right consequent thereon.

Section 12.4 No Waivers or Election of Remedies, Expenses, Etc. No course of dealing and no delay on the part of any Holder of any Note in exercising any right, power or remedy shall operate as a waiver thereof or otherwise prejudice such Holder’s rights, powers or remedies. No right, power or remedy conferred by this Agreement or by any Note upon any Holder thereof shall be exclusive of any other right, power or remedy referred to herein or therein or now or hereafter available at law, in equity, by statute or otherwise. Without limiting the obligations of the Company under Article 15, the Company will pay to the Holder of each Note on demand such further amount as shall be sufficient to cover all costs and expenses of such Holder incurred in any enforcement or collection under this Article 12, including, without limitation, reasonable attorneys’ fees, expenses and disbursements.

ARTICLE 13. REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES.

Section 13.1 Registration of Notes. The Company shall keep at its principal executive office a register for the registration and registration of transfers of Notes. The name and address of each Holder of one or more Notes, each transfer thereof and the name and address of each transferee of one or more Notes shall be registered in such register. If any Holder of one or more Notes is a nominee, then the name and address of the beneficial owner of such Note or Notes shall also be registered in such register as an owner and Holder thereof. Prior to due presentment for registration of transfer, the Person(s) in whose name any Note(s) shall be registered shall be deemed and treated as the owner and Holder thereof for all purposes hereof, and the Company shall not be affected by any notice or knowledge to the contrary. The Company shall give to any Holder of a Note that is an Institutional Investor promptly upon request therefor, a complete and correct copy of the names and addresses of all registered Holders of Notes.

Section 13.2 Transfer and Exchange of Notes.

(a) Upon surrender of any Note to the Company at the address and to the attention of the designated officer (all as specified in Section 18(iii)), for registration of transfer or exchange (and in the case of a surrender for registration of transfer accompanied by a written instrument of transfer duly executed by the registered Holder of such Note or such Holder’s attorney duly authorized in writing and accompanied by the relevant name, address and other information for notices of each transferee of such Note or part thereof), within ten Business Days thereafter, the Company shall execute and deliver, at the Company’s expense (except as provided below), one or more new Notes (as requested by the Holder thereof) in exchange therefor, in an aggregate principal amount equal to the unpaid principal amount of the surrendered Note. Each such new Note shall be payable to such Person as such Holder may request and shall be substantially in the form of Exhibit 1. Each such new Note shall be dated and bear interest from

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the date to which interest shall have been paid on the surrendered Note or dated the date of the surrendered Note if no interest shall have been paid thereon. The Company may require payment of a sum sufficient to cover any stamp tax or governmental charge imposed in respect of any such transfer of Notes as a condition of registering the transfer of Notes on its register. Notes shall not be transferred in denominations of less than [***] provided that if necessary to enable the registration of transfer by a Holder of its entire holding of Notes, one Note may be in a denomination of less than [***]. Any transferee, by its acceptance of a Note registered in its name (or the name of its nominee), shall be deemed to have made the representations set forth in Article 6.

(b) The Purchasers understands that the Notes are not being registered under the Securities Act or any state securities law and are being sold to the Purchasers in a transaction that is exempt from the registration requirements of the Securities Act. Neither the Company nor any other person or entity is obligated to register the Notes under the Securities Act or any other securities or “Blue Sky” laws.

(c) The Purchasers understand that the Note will bear a legend to substantially the following effect:

THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”). NEITHER THIS NOTE NOR ANY PORTION HEREOF MAY BE OFFERED, SOLD OR OTHERWISE TRANSFERRED EXCEPT IN COMPLIANCE WITH THE REGISTRATION PROVISIONS OF THE SECURITIES ACT AND ANY APPLICABLE PROVISIONS OF ANY STATE BLUE SKY OR SECURITIES LAWS OR PURSUANT TO AN AVAILABLE EXEMPTION FROM SUCH REGISTRATION PROVISIONS.

Section 13.3 Replacement of Notes. Upon receipt by the Company at the address and to the attention of the designated officer (all as specified in Section 18(iii)) of evidence reasonably satisfactory to it of the ownership of and the loss, theft, destruction or mutilation of any Note (which evidence shall be, in the case of an Institutional Investor, notice from such Institutional Investor of such ownership and such loss, theft, destruction or mutilation), and

(a) in the case of loss, theft or destruction, of indemnity reasonably satisfactory to it (provided that if the Holder of such Note is, or is a nominee for, an original Purchaser or another Holder of a Note with a minimum net worth of at least [***] or a Qualified Institutional Buyer, such Person’s own unsecured agreement of indemnity shall be deemed to be satisfactory), or

(b) in the case of mutilation, upon surrender and cancellation thereof, within ten Business Days thereafter,

the Company at its own expense shall execute and deliver, in lieu thereof, a new Note, dated and bearing interest from the date to which interest shall have been paid on such lost, stolen, destroyed or mutilated Note or dated the date of such lost, stolen, destroyed or mutilated Note if no interest shall have been paid thereon.

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ARTICLE 14. PAYMENTS ON NOTES.

Section 14.1 Place of Payment. Subject to Section 14.2, payments of principal, Make-Whole Amount, if any, and interest becoming due and payable on the Notes shall be made in New York, New York, at the principal office of the Collateral Agent in such jurisdiction. The Company may at any time, by notice to each Holder of a Note, change the place of payment of the Notes so long as such place of payment shall be either the principal office of the Company in such jurisdiction or the principal office of a bank or trust company in such jurisdiction.

Section 14.2 Home Office Payment. So long as any Purchaser or its nominee shall be the Holder of any Note, and notwithstanding anything contained in Section 14.1 or in such Note to the contrary, the Company will pay all sums becoming due on such Note for principal, Make-Whole Amount, if any, interest and all other amounts becoming due hereunder by the method and at the address specified for such purpose below such Purchaser’s name in Schedule A, or by such other method or at such other address as such Purchaser shall have from time to time specified to the Company in writing for such purpose, without the presentation or surrender of such Note or the making of any notation thereon, except that upon written request of the Company made concurrently with or reasonably promptly after payment or prepayment in full of any Note, such Purchaser shall surrender such Note for cancellation, reasonably promptly after any such request, to the Company at its principal executive office or at the place of payment most recently designated by the Company pursuant to Section 14.1. Prior to any sale or other disposition of any Note held by a Purchaser or its nominee, such Purchaser will, at its election, either endorse thereon the amount of principal paid thereon and the last date to which interest has been paid thereon or surrender such Note to the Company in exchange for a new Note or Notes pursuant to Section 13.2. The Company will afford the benefits of this Section 14.2 to any Institutional Investor that is the direct or indirect transferee of any Note purchased by a Purchaser under this Agreement and that has made the same agreement relating to such Note as the Purchasers have made in this Section 14.2.

ARTICLE 15. EXPENSES, ETC.

Section 15.1 Transaction Expenses. Whether or not the transactions contemplated hereby are consummated, the Company will pay all costs and expenses (including reasonable attorneys’ fees of a special counsel and, if reasonably required by the Required Holders, local or other counsel) incurred by the Purchasers and each other Holder of a Note in connection with such transactions and in connection with any amendments, waivers or consents under or in respect of the Credit Documents (whether or not such amendment, waiver or consent becomes effective), including, without limitation: (a) the costs and expenses incurred in enforcing or defending (or determining whether or how to enforce or defend) any rights under the Credit Documents or in responding to any subpoena or other legal process or informal investigative demand issued in connection with the Credit Documents, or by reason of being a Holder of any Note, (b) the costs and expenses, including financial advisors’ fees, incurred in connection with the insolvency or bankruptcy of the Company or in connection with any work-out or restructuring of the transactions contemplated by the Credit Documents and (c) the costs and expenses incurred in connection with the initial filing of this Agreement and all related documents and financial information with the SVO provided, that such costs and expenses under this clause (c) shall not exceed [***]. The Company will pay, and will save each Purchaser

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and each other Holder of a Note harmless from, all claims in respect of any fees, costs or expenses, if any, of brokers and finders (other than those, if any, retained by a Purchaser or other Holder in connection with its purchase of the Notes).

Section 15.2 Survival. The obligations of the Company under this Article 15 will survive the payment or transfer of any Note, the enforcement, amendment or waiver of any provision of the Credit Documents, and the termination of the Credit Documents.

ARTICLE 16. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE AGREEMENT.

All representations and warranties contained herein shall survive the execution and delivery of this Agreement and the Notes, the purchase or transfer by any Purchaser of any Note or portion thereof or interest therein and the payment of any Note, and may be relied upon by any subsequent Holder of a Note, regardless of any investigation made at any time by or on behalf of such Purchaser or any other Holder of a Note. All statements contained in any certificate or other instrument delivered by or on behalf of the Company pursuant to this Agreement shall be deemed representations and warranties of the Company made as of the date of delivery of such certificate or other instrument (except as otherwise provided therein) under this Agreement. Subject to the preceding sentence, the Credit Documents embody the entire agreement and understanding between each Purchaser and the Company and supersede all prior agreements and understandings relating to the subject matter hereof.

ARTICLE 17. AMENDMENT AND WAIVER.

Section 17.1 Requirements. This Agreement and the Notes may be amended, and the observance of any term hereof or of the Notes may be waived (either retroactively or prospectively), only with the written consent of the Company and the Required Holders, except that:

(a) no amendment or waiver of any of the provisions of Articles 1, 2, 3, 4, 5, 6 or 21 hereof, or any defined term (as it is used therein), will be effective as to any Purchaser unless consented to by such Purchaser in writing;

(b) no amendment or waiver may, without the written consent of each Purchaser and the Holder of each Note at the time outstanding, (i) subject to the provisions of Article 12 relating to acceleration or rescission, change the amount or time of any prepayment or payment of principal of, or reduce the rate or change the time of payment or method of computation of (x) interest on the Notes or (y) the Make-Whole Amount, (ii) change the percentage of the principal amount of the Notes the Holders of which are required to consent to any amendment or waiver, or (iii) amend any of Article 8 (except as set forth in Section 17.1(c)), Section 11.1(b), or Articles 12, 17 or 20; and

(c) the provisions of Section 8.5 may be amended or waived to permit offers to purchase made by the Company or an Affiliate pro rata to the Holders of all Notes at the time outstanding upon the same terms and conditions only with the written consent of the Company and the Super-Majority Holders.

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Section 17.2 Solicitation of Holders of Notes.

(a) Solicitation. The Company will provide each registered Holder of a Note on the note register maintained by the Company pursuant to Section 13.1 with sufficient information, at least 10 Business Days in advance of the date a decision is required, to enable such Holder to make an informed and considered decision with respect to any proposed amendment, waiver or consent in respect of any of the Credit Documents. The Company will deliver executed or true and correct copies of each amendment, waiver or consent effected pursuant to the provisions of this Article 17 to each registered Holder of a Note on the note register maintained by the Company pursuant to Section 13.1 promptly following the date on which it is executed and delivered by, or receives the consent or approval of, the requisite Holders of Notes.

(b) Payment. The Company will not directly or indirectly pay or cause to be paid any remuneration, whether by way of supplemental or additional interest, fee or otherwise, or grant any security or provide other credit support, to any Holder of a Note as consideration for or as an inducement to the entering into by such Holder of any waiver or amendment of any of the terms and provisions of any Credit Document unless such remuneration is concurrently paid, or security is concurrently granted or other credit support concurrently provided, on the same terms, ratably to each Holder of a Note even if such Holder did not consent to such waiver or amendment.

(c) Consent in Contemplation of Transfer. Any consent made pursuant to this Article 17 by a Holder of Notes that has transferred or has agreed to transfer its Notes to the Company or any Affiliate of the Company pursuant to a waiver under Section 17.1(c) or subsequent to Section 8.5 having been amended pursuant to Section 17.1(c) and has provided or has agreed to provide such written consent as a condition to such transfer shall be void and of no force or effect except solely as to such Holder, and any amendments effected or waivers granted or to be effected or granted that would not have been or would not be so effected or granted but for such consent (and the consents of all other Holders of Notes that were acquired under the same or similar conditions) shall be void and of no force or effect except solely as to such Holder.

Section 17.3 Binding Effect, etc. Any amendment or waiver consented to as provided in this Article 17 applies equally to all Holders of Notes and is binding upon them and upon each future Holder of any Note and upon the Company without regard to whether such Note has been marked to indicate such amendment or waiver. No such amendment or waiver will extend to or affect any obligation, covenant, agreement, Default or Event of Default not expressly amended or waived or impair any right consequent thereon. No course of dealing between the Company and any Holder of a Note nor any delay in exercising any rights under any Credit Document shall operate as a waiver of any rights of any Holder of such Note.

Section 17.4 Notes Held by Company, etc. Solely for the purpose of determining whether the Holders of the requisite percentage of the aggregate principal amount of Notes then outstanding approved or consented to any amendment, waiver or consent to be given under the Credit Documents, or have directed the taking of any action provided in the Credit Documents to be taken upon the direction of the Holders of a specified percentage of the aggregate principal amount of Notes then outstanding, Notes directly or indirectly owned by the Company or any of its Affiliates shall be deemed not to be outstanding.

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ARTICLE 18. NOTICES.

All notices and communications provided for hereunder shall be in writing and sent (a) by facsimile if the sender on the same day sends a confirming copy of such notice by an internationally recognized overnight delivery service (charges prepaid), (b) by registered or certified mail with return receipt requested (postage prepaid), or (c) by an internationally recognized overnight delivery service (with charges prepaid). Any such notice must be sent:

(i) if to any Purchaser or its nominee, to such Purchaser or nominee at the address specified for such communications in Schedule A, or at such other address as such Purchaser or nominee shall have specified to the Company in writing,

(ii) if to any other Holder of any Note, to such Holder at such address as such other Holder shall have specified to the Company in writing, or

(iii) if to the Company, to the Company at the following address: Diamond State Generation Partners, LLC, 1252 Orleans Drive, Sunnyvale, CA 94089, Attn: Bill Brockenborough, or at such other address as the Company shall have specified to the Holder of each Note in writing.

Notices under this Article 18 will be deemed given only when actually received during the normal business hours of the recipient on a Business Day or if received after such normal hours on a Business Day or on a day that is not a Business Day, then on the next succeeding Business Day.

ARTICLE 19. REPRODUCTION OF DOCUMENTS.

This Agreement and all documents relating thereto, including, without limitation, (a) consents, waivers and modifications that may hereafter be executed, (b) documents received by any Purchaser at the Closing (except the Notes themselves), and (c) financial statements, certificates and other information previously or hereafter furnished to any Purchaser, may be reproduced by such Purchaser by any photographic, photostatic, electronic, digital, or other similar process and such Purchaser may destroy any original document so reproduced. The Company agrees and stipulates that, to the extent permitted by applicable law, any such reproduction shall be admissible in evidence as the original itself in any judicial or administrative proceeding (whether or not the original is in existence and whether or not such reproduction was made by such Purchaser in the regular course of business) and any enlargement, facsimile or further reproduction of such reproduction shall likewise be admissible in evidence. This Article 19 shall not prohibit the Company or any other Holder of Notes from contesting any such reproduction to the same extent that it could contest the original, or from introducing evidence to demonstrate the inaccuracy of any such reproduction.

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ARTICLE 20. CONFIDENTIAL INFORMATION.

For the purposes of this Article 20, “Confidential Information” means information delivered to any Purchaser by or on behalf of the Company in connection with the transactions contemplated by or otherwise pursuant to this Agreement that is proprietary in nature and that was clearly marked or labeled or otherwise adequately identified when received by such Purchaser as being confidential information of the Company, provided that such term does not include information that (a) was publicly known or otherwise known to such Purchaser prior to the time of such disclosure, (b) subsequently becomes publicly known through no act or omission by such Purchaser or any Person acting on such Purchaser’s behalf, (c) otherwise becomes known to such Purchaser other than through disclosure by the Company or (d) constitutes financial statements delivered to such Purchaser under Section 7.1 that are otherwise publicly available. Each Purchaser will maintain the confidentiality of such Confidential Information in accordance with procedures adopted by such Purchaser in good faith to protect confidential information of third parties delivered to such Purchaser, provided that such Purchaser may deliver or disclose Confidential Information to (i) its directors, officers, employees, agents, attorneys, trustees and affiliates (to the extent such disclosure reasonably relates to the administration of the investment represented by its Notes), (ii) its auditors, financial advisors and other professional advisors who agree to hold confidential the Confidential Information substantially in accordance with the terms of this Article 20, (iii) any other Holder of any Note, (iv) any Institutional Investor to which it sells or offers to sell such Note or any part thereof or any participation therein (if such Person has agreed in writing prior to its receipt of such Confidential Information to be bound by the provisions of this Article 20), (v) any Person from which it offers to purchase any Security of the Company (if such Person has agreed in writing prior to its receipt of such Confidential Information to be bound by the provisions of this Article 20), (vi) any federal or state regulatory authority having jurisdiction over such Purchaser, (vii) the NAIC or the SVO or, in each case, any similar organization, or any nationally recognized rating agency that requires access to information about such Purchaser’s investment portfolio, or (viii) any other Person to which such delivery or disclosure may be necessary or appropriate (w) to effect compliance with any law, rule, regulation or order applicable to such Purchaser, (x) in response to any subpoena or other legal process, (y) in connection with any litigation to which such Purchaser is a party or (z) if an Event of Default has occurred and is continuing, to the extent such Purchaser may reasonably determine such delivery and disclosure to be necessary or appropriate in the enforcement or for the protection of the rights and remedies under the Credit Documents. Each Holder of a Note, by its acceptance of a Note, will be deemed to have agreed to be bound by and to be entitled to the benefits of this Article 20 as though it were a party to this Agreement. On reasonable request by the Company in connection with the delivery to any Holder of a Note of information required to be delivered to such Holder under this Agreement or requested by such Holder (other than a Holder that is a party to this Agreement or its nominee), such Holder will enter into an agreement with the Company embodying the provisions of this Article 20.

In the event that as a condition to receiving access to information relating to the Company in connection with the transactions contemplated by or otherwise pursuant to this Agreement, any Purchaser is required to agree to a confidentiality undertaking (whether through Intralinks or otherwise) which is different from the terms of this Article 20, the terms of this Article 20 shall, as between such Purchaser and the Company, supersede the terms of any such other confidentiality undertaking.

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ARTICLE 21. SUBSTITUTION OF PURCHASER.

Each Purchaser shall have the right to substitute any one of its Affiliates as the purchaser of the Notes that it has agreed to purchase hereunder, by written notice to the Company, which notice shall be signed by both such Purchaser and such Affiliate, shall contain such Affiliate’s agreement to be bound by this Agreement and shall contain a confirmation by such Affiliate of the accuracy with respect to it of the representations set forth in Article 6. Upon receipt of such notice, any reference to such Purchaser in this Agreement (other than in this Article 21), shall be deemed to refer to such Affiliate in lieu of such original Purchaser. In the event that such Affiliate is so substituted as a Purchaser hereunder and such Affiliate thereafter transfers to such original Purchaser all of the Notes then held by such Affiliate, upon receipt by the Company of notice of such transfer, any reference to such Affiliate as a “Purchaser” in this Agreement (other than in this Article 21), shall no longer be deemed to refer to such Affiliate, but shall refer to such original Purchaser, and such original Purchaser shall again have all the rights of an original Holder of the Notes under this Agreement.

ARTICLE 22. MISCELLANEOUS.

Section 22.1 Successors and Assigns. All covenants and other agreements contained in this Agreement by or on behalf of any of the parties hereto bind and inure to the benefit of their respective successors and permitted assigns (including, without limitation, any subsequent Holder of a Note) whether so expressed or not.

Section 22.2 Payments Due on Non-Business Days. Anything in this Agreement or the Notes to the contrary notwithstanding, any payment of principal of or Make-Whole Amount or interest on any Note that is due on a date other than a Business Day shall be made on the next succeeding Business Day without including the additional days elapsed in the computation of the interest payable on such next succeeding Business Day; provided that if the maturity date of any Note is a date other than a Business Day, the payment otherwise due on such maturity date shall be made on the next succeeding Business Day and shall include the additional days elapsed in the computation of interest payable on such next succeeding Business Day.

Section 22.3 Accounting Terms. All accounting terms used herein which are not expressly defined in this Agreement have the meanings respectively given to them in accordance with GAAP. Except as otherwise specifically provided herein, (i) all computations made pursuant to this Agreement shall be made in accordance with GAAP, and (ii) all financial statements shall be prepared in accordance with GAAP. For purposes of determining compliance with the financial covenants contained in this Agreement, any election by the Company to measure any financial liability using fair value (as permitted by Accounting Standard Codification Topic No. 825-10-25 – Fair Value Option or any similar accounting standard) shall be disregarded and such determination shall be made as if such election had not been made.

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Section 22.4 Severability. Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall (to the full extent permitted by law) not invalidate or render unenforceable such provision in any other jurisdiction.

Section 22.5 Construction, etc. Each covenant contained herein shall be construed (absent express provision to the contrary) as being independent of each other covenant contained herein, so that compliance with any one covenant shall not (absent such an express contrary provision) be deemed to excuse compliance with any other covenant. Where any provision herein refers to action to be taken by any Person, or which such Person is prohibited from taking, such provision shall be applicable whether such action is taken directly or indirectly by such Person.

For the avoidance of doubt, all Schedules and Exhibits attached to this Agreement shall be deemed to be a part hereof.

Section 22.6 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be an original but all of which together shall constitute one instrument. Each counterpart may consist of a number of copies hereof, each signed by less than all, but together signed by all, of the parties hereto.

Section 22.7 Governing Law. This Agreement shall be construed and enforced in accordance with, and the rights of the parties shall be governed by, the law of the State of New York excluding choice-of-law principles of the law of such State that would permit the application of the laws of a jurisdiction other than such State.

Section 22.8 Jurisdiction and Process; Waiver of Jury Trial. (a) The Company irrevocably submits to the non-exclusive jurisdiction of any New York State or federal court sitting in the Borough of Manhattan, The City of New York, over any suit, action or proceeding arising out of or relating to this Agreement or the Notes. To the fullest extent permitted by applicable law, the Company irrevocably waives and agrees not to assert, by way of motion, as a defense or otherwise, any claim that it is not subject to the jurisdiction of any such court, any objection that it may now or hereafter have to the laying of the venue of any such suit, action or proceeding brought in any such court and any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum.

(b) The Company consents to process being served by or on behalf of any Holder of Notes in any suit, action or proceeding of the nature referred to in Section 22.8(a) by mailing a copy thereof by registered or certified mail (or any substantially similar form of mail), postage prepaid, return receipt requested, to it at its address specified in Article 18 or at such other address of which such Holder shall then have been notified pursuant to said Article. The Company agrees that such service upon receipt (i) shall be deemed in every respect effective service of process upon it in any such suit, action or proceeding and (ii) shall, to the fullest extent permitted by applicable law, be taken and held to be valid personal service upon and personal delivery to it. Notices hereunder shall be conclusively presumed received as evidenced by a delivery receipt furnished by the United States Postal Service or any reputable commercial delivery service.

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(c) Nothing in this Section 22.8 shall affect the right of any Holder of a Note to serve process in any manner permitted by law, or limit any right that the Holders of any of the Notes may have to bring proceedings against the Company in the courts of any appropriate jurisdiction or to enforce in any lawful manner a judgment obtained in one jurisdiction in any other jurisdiction.

(d) The parties hereto hereby waive trial by jury in any action brought on or with respect to this Agreement, the Notes or any other document executed in connection herewith or therewith.

Section 22.9 Scope of Liability.

Except as set forth in this Section 22.9 and Section 8.22 of the Pledge Agreement, notwithstanding anything in any Credit Document to the contrary, the Secured Parties shall have no recourse or claims with respect to the transactions contemplated by the Operative Documents against Pledgor, Sponsor or any of their respective Affiliates (other than the Company), shareholders, officers, directors or employees (collectively, the “Nonrecourse Persons”) and the Secured Parties’ recourse against the Company shall be limited to the Collateral, the Project, all Project Revenues, all proceeds of the Notes, Insurance Proceeds, Eminent Domain Proceeds, and all income or revenues of the foregoing as and to the extent provided herein and in the Collateral Documents (which, for the avoidance of doubt, excludes the payments allowed to any Nonrecourse Person pursuant to the terms of any Credit Documents); provided, that the foregoing provision of this Section 22.9 shall not in any way (a) constitute a waiver, release or discharge of any of the indebtedness, or of any of the terms, covenants, conditions, or provisions of any Credit Document (and the same shall continue, but without personal liability to the Nonrecourse Persons, until fully paid, discharged, observed, or performed) or otherwise relieve any such Person from its obligations under the Credit Documents to which it is a party or shall preclude, restrict, reduce, limit or otherwise affect the rights, powers and remedies of the Secured Parties to enforce (or cause to be enforced) such obligations against such Person or such Person’s properties to the extent permitted by any Credit Document to which it is a party; (b) limit, reduce, restrict or otherwise affect the right of any Secured Party (or any assignee, beneficiary or successor to any of them) to name the Company or any other Person as a defendant in any action or suit for a judicial foreclosure or for the exercise of any other remedy under or with respect to any Credit Document, or for injunction or specific performance, so long as no judgment in the nature of a deficiency judgment shall be enforced against any Nonrecourse Person, except as set forth in this Section 22.9; (c) limit, reduce, restrict or otherwise affect any right or remedy of any Secured Party (or any assignee or beneficiary thereof or successor thereto) with respect to, and each of the Nonrecourse Persons shall remain fully liable to the extent that it would otherwise be liable for its own actions with respect to, any fraud, willful misrepresentation (which shall not include innocent or negligent misrepresentation), or misappropriation of Project Revenues, proceeds of the Notes, Insurance Proceeds, Eminent Domain Proceeds or any other earnings, revenues, rents, issues, profits or proceeds from or of the Collateral, that should or would have been paid as provided herein or paid or delivered to any Secured Party (or any assignee or beneficiary thereof or successor thereto) towards any payment required under any other Credit

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Document; (d) affect or diminish or constitute a waiver, release or discharge of any specific written obligation, covenant, representation, or agreement in respect of the transactions contemplated by the Operative Documents made by any of the Nonrecourse Persons or any security granted by the Nonrecourse Persons in support of the obligations of such Persons under any Collateral Document (or as security for the obligations of the Company), including Pledgor’s obligations, covenants, representations and agreements under the Pledge Agreement; nor (e) limit the liability of (i) any Person who is a party to any Project Document or has issued any certificate or other statement in connection therewith with respect to such liability as may arise solely by reason of the terms and conditions of such Project Document (but subject to any limitation of liability in such Project Document), certificate or statement, or (ii) any Person rendering a legal opinion pursuant to this Agreement, in each case under this clause (e) relating solely to such liability of such Person as may arise under such referenced agreement, instrument or opinion. The limitations on recourse set forth in this Section 22.9 shall survive the termination of this Agreement.

Section 22.10 U.S. Tax Forms.

Each Holder, on or before the date it becomes a party to this Agreement and thereafter upon reasonable request of the Company, shall furnish to the Company, to the extent such Holder is legally eligible to do so, either a completed and signed IRS Form W-9 or IRS Form W-8BEN (or other applicable Form W-8, together with applicable attachments), as may be applicable, to claim a complete exemption from U.S. federal withholding tax.

*  *  *  *  *

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If you are in agreement with the foregoing, please sign the form of agreement on a counterpart of this Agreement and return it to the Company, whereupon this Agreement shall become a binding agreement between you and the Company.

Very truly yours,
DIAMOND STATE GENERATION PARTNERS, LLC
By	/s/ William E. Brockenborough
Name:	William E. Brockenborough
Title:	President

Note Purchase Agreement (Diamond State Generation Partners, LLC)

This Agreement is hereby accepted and agreed to as of the date hereof.
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
By:	Babson Capital Management LLC, its investment adviser
By	/s/ Thomas P. Shea
Name:	Thomas P. Shea
Title:	Managing Director

Note Purchase Agreement (Diamond State Generation Partners, LLC)

This Agreement is hereby accepted and agreed to as of the date hereof.
C. M. LIFE INSURANCE COMPANY
By:	Babson Capital Management LLC, its investment adviser
By	/s/ Thomas P. Shea
Name:	Thomas P. Shea
Title:	Managing Director

Note Purchase Agreement (Diamond State Generation Partners, LLC)

This Agreement is hereby accepted and agreed to as of the date hereof.
MASSMUTUAL ASIA LIMITED
By:	Babson Capital Management LLC, its investment adviser
By	/s/ Thomas P. Shea
Name:	Thomas P. Shea
Title:	Managing Director

Note Purchase Agreement (Diamond State Generation Partners, LLC)

This Agreement is hereby accepted and agreed to as of the date hereof.
TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF AMERICA
By	/s/ Joseph R. Cantey Jr.
Name:	Joseph R. Cantey Jr.
Title:	Director

Note Purchase Agreement (Diamond State Generation Partners, LLC)

This Agreement is hereby accepted and agreed to as of the date hereof.
AXA EQUITABLE LIFE INSURANCE COMPANY
By	/s/ Amy Judd
	Amy Judd, Investment Officer

Note Purchase Agreement (Diamond State Generation Partners, LLC)

This Agreement is hereby accepted and agreed to as of the date hereof.
GENWORTH LIFE AND ANNUITY INSURANCE COMPANY
By	/s/ John R. Endres
Name:	John R. Endres
Title:	Investment Officer

Note Purchase Agreement (Diamond State Generation Partners, LLC)

This Agreement is hereby accepted and agreed to as of the date hereof.
GENWORTH LIFE INSURANCE COMPANY OF NEW YORK
By	/s/ John R. Endres
Name:	John R. Endres
Title:	Investment Officer

Note Purchase Agreement (Diamond State Generation Partners, LLC)

This Agreement is hereby accepted and agreed to as of the date hereof.
MODERN WOODMEN OF AMERICA
By	/s/ Michael E. Dau
Name:	Michael E. Dau
Title:	Treasurer & Investment Manager

Note Purchase Agreement (Diamond State Generation Partners, LLC)

DIAMOND STATE GENERATION PARTNERS, LLC

1252 ORLEANS DRIVE

SUNNYVALE, CA 94089

INFORMATION RELATING TO PURCHASERS

NAME AND ADDRESS OF PURCHASER	PRINCIPAL AMOUNT OF NOTES TO BE PURCHASED
MODERN WOODMEN OF AMERICA		[	***]

(1) All payments by wire transfer of immediately available funds to:

The Northern Trust Company

50 South LaSalle Street

Chicago, IL 60675

ABA No. 071-000-152

Account Name: Modern Woodmen of America

Account No. [***]

with sufficient information to identify the source and application of such funds.

(2) All notices of payments and written confirmations of such wire transfers:

Modern Woodmen of America

Attn: Investment Accounting Department

1701 First Avenue

Rock Island, IL 61201

Fax: [***]

(3) All other communications:

Modern Woodmen of America

Attn: Investment Department

1701 First Avenue

Rock Island, IL 61201

investments@modern-woodmen.org

Fax: [***]

[***] Confidential Treatment Requested

SCHEDULE A

(to Note Purchase Agreement)

NAME AND ADDRESS OF PURCHASER	PRINCIPAL AMOUNT OF NOTES TO BE PURCHASED
AXA EQUITABLE LIFE INSURANCE COMPANY		[	***]

1. All payments by wire transfer of immediately available funds to:

The Chase Manhattan Bank, N.A.

Account (s): AXA Equitable Life Insurance Company

4 Chase Metrotech Center

Brooklyn, New York 11245

ABA No.: 021-000021

Bank Account: [***]

Custody Account: [***]

Face Amount of [***]

with sufficient information to identify the source and application of such funds.

2. All notices of payments and written confirmations of such wire transfers:

AXA Equitable Life Insurance Company

C/O AllianceBernstein LP

1345 Avenue of the America

37^th Floor

New York, New York 10105

Attention: Cosmo Valente Telephone #: [***]

3. All other communications:

AXA Equitable Life Insurance Company

C/O AllianceBernstein LP

1345 Avenue of the Americas, 37th Floor

New York, NY 10105

Attention: Terry McCarthy

AllianceBernstein LP

Telephone #: [***]

[***] Confidential Treatment Requested

SCHEDULE A

(to Note Purchase Agreement)

NAME AND ADDRESS OF PURCHASER	PRINCIPAL AMOUNT OF NOTES TO BE PURCHASED
AXA EQUITABLE LIFE INSURANCE COMPANY		[	***]

1. All payments by wire transfer of immediately available funds to:

The Chase Manhattan Bank, N.A.

Account (s): AXA Equitable Life Insurance Company

4 Chase Metrotech Center

Brooklyn, New York 11245

ABA No.: 021-000021

Bank Account: [***]

Custody Account: [***]

Face Amount of [***]

with sufficient information to identify the source and application of such funds.

2. All notices of payments and written confirmations of such wire transfers:

AXA Equitable Life Insurance Company

C/O AllianceBernstein LP

1345 Avenue of the America

37^th Floor

New York, New York 10105

Attention: Cosmo Valente Telephone #: [***]

3. All other communications:

AXA Equitable Life Insurance Company

C/O AllianceBernstein LP

1345 Avenue of the Americas, 37th Floor

New York, NY 10105

Attention: Terry McCarthy

AllianceBernstein LP

Telephone #: [***]

[***] Confidential Treatment Requested

SCHEDULE A

(to Note Purchase Agreement)

NAME AND ADDRESS OF PURCHASER	PRINCIPAL AMOUNT OF NOTES TO BE PURCHASED
TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF AMERICA		[	***]

1. All payments by wire transfer of immediately available funds through the Automated Clearing House System to:

JPMorgan Chase Bank, N.A.

ABA # 021-000-021

Account Number: [***]

Account Name: [***]

For Further Credit to the Account Number: [***]

Reference: [***]

Maturity Date: March 30, 2025/Interest Rate: 5.22% P&I Breakdown

with sufficient information to identify the source and application of such funds.

2. All notices of payments and written confirmations of such wire transfers:

Teachers Insurance and Annuity Association of America

730 Third Avenue

New York, New York 10017

Attention: Securities Accounting Division

Phone: [***]

Email: [***]

With a copy to:

JPMorgan Chase Bank, N.A.

P.O. Box 35308

Newark, New Jersey 07101

And to:

Teachers Insurance and Annuity Association of America

8500 Andrew Carnegie Boulevard

Charlotte, North Carolina 28262

Attention: Global Private Markets

Telephone:	[***] [***]
Facsimile:	[***]
Email:	[***]

[***] Confidential Treatment Requested

SCHEDULE A

(to Note Purchase Agreement)

3. All other communications:

Teachers Insurance and Annuity Association of America

8500 Andrew Carnegie Boulevard

Charlotte, North Carolina 28262

Attention: Global Private Markets

Telephone:	[***] [***]
Facsimile:	[***]
Email:	[***]

[***] Confidential Treatment Requested

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NAME AND ADDRESS OF PURCHASER	PRINCIPAL AMOUNT OF NOTES TO BE PURCHASED
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY		[	***]

1. All payments by wire transfer of immediately available funds to:

MassMutual Co-Owned Account

Citibank

New York, New York

ABA # [***]

Acct # [***]

RE: Description of security, cusip, principal and interest split

with sufficient information to identify the source and application of such funds.

2. All notices of payments and written confirmations of such wire transfers:

Massachusetts Mutual Life Insurance Company

1295 State Street

Springfield, MA 01111

Attn: [***]

With a copy to:

Massachusetts Mutual Life Insurance

c/o Babson Capital Management LLC

1500 Main Street – Suite 2200

Springfield, MA 01115

Attn: Securities Investment Division

With email notification to:

1. [***]

2. [***]

3. [***]

3. All other communications:

Massachusetts Mutual Life Insurance Company

c/o Babson Capital Management LLC

1500 Main Street – Suite 2200

PO Box 15189

Springfield, MA 01115-5189

Attn: Securities Investment Division

[***] Confidential Treatment Requested

SCHEDULE A

(to Note Purchase Agreement)

With email notification to:

1. [***]

2. [***]

3. [***]

[***] Confidential Treatment Requested

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NAME AND ADDRESS OF PURCHASER	PRINCIPAL AMOUNT OF NOTES TO BE PURCHASED
C.M. LIFE INSURANCE COMPANY		[	***]

1. All payments by wire transfer of immediately available funds to:

MassMutual Co-Owned Account

Citibank

New York, New York

ABA # [***]

Acct # [***]

RE: Description of security, cusip, principal and interest split

with sufficient information to identify the source and application of such funds.

2. All notices of payments and written confirmations of such wire transfers:

C. M. Life Insurance Company

c/o Massachusetts Mutual Life Insurance Company

1295 State Street

Springfield, MA 01111

Attn: [**]

With a copy to:

C. M. Life Insurance Company

c/o Babson Capital Management LLC

1500 Main Street – Suite 2200

Springfield, MA 01115

Attn: Securities Investment Division

With email notification to:

1. [***]

2. [***]

3. [***]

3. All other communications:

C. M. Life Insurance Company

c/o Babson Capital Management LLC

1500 Main Street – Suite 2200

PO Box 15189

Springfield, MA 01115-5189

Attn: Securities Investment Division

[***] Confidential Treatment Requested

SCHEDULE A

(to Note Purchase Agreement)

With email notification to:

1. [***]

2. [***]

3. [***]

[***] Confidential Treatment Requested

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NAME AND ADDRESS OF PURCHASER	PRINCIPAL AMOUNT OF NOTES TO BE PURCHASED
MASSMUTUAL ASIA LIMITED		[	***]

1. All payments by wire transfer of immediately available funds to:

Gerlach & Co.

c/o Citibank, N.A.

ABA # [***]

Concentration Acct # [***]

Attn: [***]

FFC: [***]

Name of Security/CUSIP Number

with sufficient information to identify the source and application of such funds.

2. All notices of payments and written confirmations of such wire transfers:

MassMutual Asia Limited

c/o Massachusetts Mutual Life Insurance Company

1295 State Street

Springfield, MA 01111

Attn: [***]

With a copy to:

MassMutual Asia Limited

c/o Babson Capital Management LLC

1500 Main Street – Suite 2200

Springfield, MA 01115

Attn: Securities Investment Division

With email notification to:

1. [***]

2. [***]

3. [***]

3. All other communications:

MassMutual Asia Limited

c/o Babson Capital Management LLC

1500 Main Street – Suite 2200

PO Box 15189

Springfield, MA 01115-5189

Attn: Securities Investment Division

[***] Confidential Treatment Requested

SCHEDULE A

(to Note Purchase Agreement)

With email notification to:

1. [***]

2. [***]

3. [***]

[***] Confidential Treatment Requested

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NAME AND ADDRESS OF PURCHASER	PRINCIPAL AMOUNT OF NOTES TO BE PURCHASED
GENWORTH LIFE AND ANNUITY INSURANCE COMPANY		[	***]

1. All payments by wire transfer of immediately available funds to:

The Bank of New York

ABA #: 021000018

Account #: [***]

SWIFT Code: [***]

Acct Name: Private Placement Income Collection Account

Attn: PP P&I Department

Reference: GLAIC / LA_TLC

CUSIP/PPN & Security Description, and Identify Principal & Interest Amounts

Face Amount of [***]

And By Email: [***]

Fax: [***]

with sufficient information to identify the source and application of such funds.

2. All notices of payments and written confirmations of such wire transfers:

Genworth Financial, Inc.

Account: Genworth Life and Annuity Insurance Company

3001 Summer Street

Stamford, CT 06905

Attn: Trade Operations

Telephone No: [***]

Fax No: [***]

[***]

and

The Bank of New York

Income Collection Department

P.O. Box 19266

Newark, NJ 07195

Attn: PP P&I Department

Ref: GLAIC, CUSIP/PPN & Security Description

P&I Contact: [***]

[***] Confidential Treatment Requested

SCHEDULE A

(to Note Purchase Agreement)

3. All other communications:

Genworth Financial, Inc.

Account: Genworth Life and Annuity Insurance Company

3001 Summer Street, 2^nd Floor

Stamford, CT 06905

Attn: Private Placements

Telephone No: [***]

Fax No: [***]

[***]

[***] Confidential Treatment Requested

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NAME AND ADDRESS OF PURCHASER	PRINCIPAL AMOUNT OF NOTES TO BE PURCHASED
GENWORTH LIFE AND ANNUITY INSURANCE COMPANY		[	***]

1. All payments by wire transfer of immediately available funds to:

The Bank of New York

ABA #: [***]

Account #: [***]

SWIFT Code: [***]

Acct Name: Private Placement Income Collection Account

Attn: PP P&I Department

Reference: GLAIC / LATERMUL

CUSIP/PPN & Security Description, and Identify Principal & Interest Amounts

Face Amount of [***]

And By Email: [***]

Fax: [***]

with sufficient information to identify the source and application of such funds.

2. All notices of payments and written confirmations of such wire transfers:

Genworth Financial, Inc.

Account: Genworth Life and Annuity Insurance Company

3001 Summer Street

Stamford, CT 06905

Attn: Trade Operations

Telephone No: [***]

Fax No: [***]

[***]

and

The Bank of New York

Income Collection Department

P.O. Box 19266

Newark, NJ 07195

Attn: PP P&I Department

Ref: GLAIC, CUSIP/PPN & Security Description

P&I Contact: [***]

[***] Confidential Treatment Requested

SCHEDULE A

(to Note Purchase Agreement)

3. All other communications:

Genworth Financial, Inc.

Account: Genworth Life and Annuity Insurance Company

3001 Summer Street, 2^nd Floor

Stamford, CT 06905

Attn: Private Placements

Telephone No: [***]

Fax No: [***]

[***]

[***] Confidential Treatment Requested

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NAME AND ADDRESS OF PURCHASER	PRINCIPAL AMOUNT OF NOTES TO BE PURCHASED
GENWORTH LIFE AND ANNUITY INSURANCE COMPANY		[	***]

1. All payments by wire transfer of immediately available funds to:

The Bank of New York

ABA #: [***]

Account #: [***]

SWIFT Code: [***]

Acct Name: Private Placement Income Collection Account

Attn: PP P&I Department

Reference: GLAIC / LASPIA

CUSIP/PPN & Security Description, and Identify Principal & Interest Amounts

Face Amount of [***]

And By Email: [***]

Fax: [***]

with sufficient information to identify the source and application of such funds.

2. All notices of payments and written confirmations of such wire transfers:

Genworth Financial, Inc.

Account: Genworth Life and Annuity Insurance Company

3001 Summer Street

Stamford, CT 06905

Attn: Trade Operations

Telephone No: [***]

Fax No: [***]

[***]

and

The Bank of New York

Income Collection Department

P.O. Box 19266

Newark, NJ 07195

Attn: PP P&I Department

Ref: GLAIC, CUSIP/PPN & Security Description

P&I Contact: [***]

[***] Confidential Treatment Requested

SCHEDULE A

(to Note Purchase Agreement)

3. All other communications:

Genworth Financial, Inc.

Account: Genworth Life and Annuity Insurance Company

3001 Summer Street, 2^nd Floor

Stamford, CT 06905

Attn: [***]

Telephone No: [***]

Fax No: [***]

[***]

[***] Confidential Treatment Requested

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NAME AND ADDRESS OF PURCHASER	PRINCIPAL AMOUNT OF NOTES TO BE PURCHASED
GENWORTH LIFE INSURANCE COMPANY OF NEW YORK		[	***]

1. All payments by wire transfer of immediately available funds to:

The Bank of New York

ABA #: 021000018

Account #: [***]

SWIFT Code: [***]

Acct Name: [***]

Attn: [***]

Reference: [***]

CUSIP/PPN & Security Description, and Identify Principal & Interest Amounts

Face Amount of [***]

And By Email: [***]

Fax: [***]

with sufficient information to identify the source and application of such funds.

2. All notices of payments and written confirmations of such wire transfers:

Genworth Financial, Inc.

Account: Genworth Life Insurance Company of New York

3001 Summer Street

Stamford, CT 06905

Attn: [***]

Telephone No: [***]

Fax No: [***]

[***]

and

The Bank of New York

Income Collection Department

P.O. Box 19266

Newark, NJ 07195

Attn: [***]

Ref: [***]

P&I Contact: [***]

[***] Confidential Treatment Requested

SCHEDULE A

(to Note Purchase Agreement)

3. All other communications:

Genworth Financial, Inc.

Account: Genworth Life Insurance Company of New York

3001 Summer Street, 2^nd Floor

Stamford, CT 06905

Attn: [***]

Telephone No: [***]

Fax No: [***]

[***]

[***] Confidential Treatment Requested

-86-

DEFINED TERMS

As used herein, the following terms have the respective meanings set forth below or set forth in the Section hereof following such term:

“Accounts” means the Construction Escrow Account, the Revenue Account, the Operating Account, the Distribution Suspense Account, the IDC Reserve Account, Debt Service Reserve Account, the Loss Proceeds Account, the Note Redemption Account and each cash collateral account referred to in the Credit Documents (other than the Cash Grant Account and System Refund Account), including any sub-accounts within such accounts.

“Additional Project Documents” means any material contracts or agreements related to the construction, testing, maintenance, repair, operation or use of the Project entered into by Company and any other Person, or assigned to Company, subsequent to the Closing Date; provided that any such contracts and agreements providing for the payment by or to Company of less than [***] or the provision to Company of less than [***] per annum individually in value of goods or services, shall be deemed not to constitute an Additional Project Document.

“Administrative Services Agreement” means the Administrative Services Agreement dated as of April 13, 2012 among Company, Pledgor and the Administrative Services Provider, as amended by the Omnibus Amendment.

“Administrative Services Provider” means Sponsor.

“Adverse PUHCA Event” means (i) loss of Exempt Wholesale Generator status for the Company or loss of Eligible Facility status for the Project, (ii) the Company shall have tendered notice to FERC that the Company has ceased to be an Exempt Wholesale Generator, (iii) FERC shall have issued an order determining that the Company no longer meets the criteria of an Exempt Wholesale Generator or takes other action revoking such Exempt Wholesale Generator status or (iv) the Company otherwise becoming subject to regulation under PUHCA.

“Affiliate” of a specified Person means any other Person that (a) directly, or indirectly through one or more intermediaries, Controls, is Controlled by or is under common Control with such Person, or (b) only with respect to matters relating to PUHCA, (i) is an “affiliate” as defined in Section 1262(1) of PUHCA or (ii) directly or indirectly owns, Controls or holds with power to vote, 5% or more of the outstanding voting securities of such Person. When used with respect to Company, “Affiliate” shall include Pledgor and any Affiliate thereof (other than Company).

“Agreement” means this Agreement as it may be amended or supplemented from time to time.

“ALTA” means American Land Title Association.

“Amortization Schedule” means the schedule showing the amortization of the Notes from the Closing Date to the Maturity Date, attached hereto as Schedule 8.1.

“Annual Operating Budget” is defined in Section 9.14(b).

“Anti-Money Laundering Laws” is defined in Section 5.16(c).

[***] Confidential Treatment Requested

SCHEDULE B

(to Note Purchase Agreement)

“Applicable Permit” means, at any time, any Permit (a) that is necessary under applicable Legal Requirements or any of the Operative Documents to have been obtained by or on behalf of the Company at such time in light of the stage of development, construction or operation of the Project to construct, test, operate, maintain, repair, lease, own or use the Project as contemplated by the Operative Documents, to sell electricity from the Project or deliver fuel to the Project, or for the Company to enter into any Operative Document or to consummate any transaction contemplated thereby, in each case in accordance with all applicable Legal Requirements, or (b) that is necessary so that none of the Company or any Secured Party nor any Affiliate of any of them may be deemed by any Governmental Authority to be subject to regulation under the FPA or PUHCA (except as provided in Section 5.24) or treated as a public utility under the Constitution and the laws of the State of Delaware as presently constituted and as construed by the courts of the State of Delaware with respect to the regulation of the rates of, or the financial or organizational regulation of, electric utilities as a result of the development and construction or operation of the Project or the sale of electricity therefrom. The Tariff and the Gas Tariff are always Applicable Permits.

“Applicable Third Party Permit” means, at any time, any Permit that is necessary to have been obtained by such time in light of the stage of development, construction or operation of the Project by any Person (other than the Company) that is a party to a Major Project Document or a Credit Document in order to perform such Person’s obligations thereunder (other than Permits necessary to conduct its business generally and maintain its existence and good standing), or in order to consummate any transaction contemplated thereby, in each case in accordance with all applicable Legal Requirements.

“Available Funds” means, at any time and without duplication, the aggregate committed amount of all sources of capital available to the Company by way of (a) amounts in the Construction Escrow Account, (b) undisbursed Insurance Proceeds or Eminent Domain Proceeds which are available for payment of Project Costs, (c) any Project Revenues which are available for payment of Project Costs and (d) to the extent not all committed equity has been invested in the Project and there are equity investment undertakings in place and the Holders reasonably have no reason to believe that the amounts committed to be invested thereunder will not be invested, the remainder of the commitments thereunder.

“Bankruptcy Event” shall be deemed to occur, with respect to any Person, if (a) that Person shall commence any case, proceeding or other voluntary action seeking to have an order for relief entered with respect to it, or seeking to adjudicate it bankrupt or insolvent, or seeking liquidation, arrangement, adjustment, winding-up, reorganization, dissolution, composition under any applicable Debtor Relief Law or other relief with respect to it or its debts; (b) such Person shall apply for, or consent or acquiesce to, the appointment of, a receiver, administrator, administrative receiver, liquidator, sequestrator, trustee or other official with similar powers for itself or any substantial part of its assets; (c) such Person shall make a general assignment for the benefit of its creditors; (d) an involuntary case shall be commenced seeking liquidation or reorganization of such Person under any applicable Debtor Relief Law, or seeking issuance of a warrant of attachment, execution or distraint, or any similar proceedings shall be commenced against such Person under any other applicable law and (i) such Person consents to the institution of the involuntary case against it, (ii) the petition commencing the involuntary case is not timely controverted, (iii) the petition commencing the involuntary case is not dismissed within 45 days

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of its filing, (iv) an interim trustee is appointed to take possession of all or a portion of the property, and/or to operate all or any part of the business of such Person and such appointment is not vacated within 45 days, or (v) an order for relief shall have been issued or entered therein; or (e) a decree or order of a court having jurisdiction in the premises for the appointment of a receiver, administrator, administrative receiver, liquidator, sequestrator, trustee or other official having similar powers, over such Person or all or a part of its property shall have been entered; or (f) any other similar relief shall be granted against such Person under any applicable Debtor Relief Law, or such Person shall file a petition or consent or shall otherwise institute any similar proceeding under any other applicable law, or shall take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in any of the acts set forth above in this definition; or (g) such Person shall generally not, or shall be unable to, or shall admit in writing its inability to, pay its debts as they become due.

“Base Case Projections” means a projection of operating results showing at a minimum Company’s good faith estimates, as of the Closing Date, of revenues, operating expenses and sources and uses over the forecast period, in substantially the form of Schedule 4.1.27, which shall be of a nature and in an amount satisfactory to the Purchasers in consultation with Independent Engineer.

“Blocked Person” is defined in Section 5.16(a).

“Brookside Lease” means the Lease Agreement, dated as of April 19, 2012, between the Company and the Delaware Department of Transportation, an agency of the State of Delaware, relating to property located at 512 East Chestnut Hill Road, Newark, DE 19713, as amended from time to time.

“Brookside Site” means the real property which is the subject of the Brookside Lease.

“Business Day” means any day other than a Saturday, a Sunday or a day on which commercial banks in New York City or the State of California are required or authorized to be closed.

“Buydown Amount” is defined in Section 9.20.

“Capital Expenditures” mean expenditures made by the Company to acquire or construct fixed assets, plant and equipment which, in accordance with GAAP, are or should be included in “purchase of property and equipment” or similar items reflected in the statement of cash flows of the Company (including renewals, improvements and replacements thereto, but, notwithstanding the foregoing, excluding any such expenditures that are paid out of Loss Proceeds).

“Capital Lease” means, at any time, a lease with respect to which the lessee is required concurrently to recognize the acquisition of an asset and the incurrence of a liability in accordance with GAAP.

“Cash Grant” means a grant under Section 1603 of division B of the American Recovery and Reinvestment Act of 2009, as amended, with respect to the Project.

“Cash Grant Account” means the account established in the name of Pledgor pursuant to the Control Agreement, dated as of April 13, 2012, by and among the Pledgor, the Managing

-3-

Member, [***] and The Bank of New York Mellon, into which the Cash Grant proceeds will be deposited, provided that such account shall not be an “Account” under the Depositary Agreement.

“Cash Grant Guidance” means the guidance issued on July 9, 2009 (as revised), by the U.S. Treasury Department for payments for specified energy property in lieu of tax credits under Section 1603 of the American Recovery and Reinvestment Act of 2009 (P.L. 111-5), as amended, and any clarification, amendment addition or supplement thereto, and any other guidance (including in the form of frequently asked questions and answers), instructions or terms and conditions published or issued by the U.S. Treasury Department or any other Governmental Authority.

“Change of Control” means (a) before the Final Completion Date, the Sponsor ceases to indirectly own and control 100% of the economic and voting interest in the Company (excluding any interests held by the Tax Equity Investors) or (b) after the Final Completion Date, the Sponsor ceases to indirectly own and control 50.1% of the economic and voting interest in the Company (excluding any interests held by the Tax Equity Investors).

“Closing” is defined in Article 3.

“Closing Date” is defined in Section 4.1.

“COD” for a System means “Commencement of Operations” of such System, as such term is defined in the MESPA.

“Code” means the Internal Revenue Code of 1986, as amended from time to time, and the rules and regulations promulgated thereunder from time to time.

“Collateral” means all property which is subject or is intended to become subject to the security interests or liens granted by any of the Collateral Documents.

“Collateral Agency Agreement” means the Collateral Agency Agreement, dated as of the Closing Date, in form and substance satisfactory to the Purchasers, between the Purchasers and the Collateral Agent.

“Collateral Agent” means Deutsche Bank Trust Company Americas, acting in its capacity as collateral agent for the Secured Parties under the Credit Documents.

“Collateral Documents” means the Mortgage, the Pledge Agreement, the Security Agreement, the Collateral Agency Agreement, each Direct Agreement, the Interparty Agreement and any fixture filings, financing statements, or other similar documents filed, recorded or delivered in connection with the foregoing.

“Company” means Diamond State Generation Partners, LLC, a Delaware limited liability company.

“Company’s COD Certificate” means a certificate delivered to the Holders, substantially in the form of Exhibit 4.2.1(c).

[***] Confidential Treatment Requested

-4-

“Confidential Information” is defined in Article 20.

“Construction Escrow Account” is defined in Section 2.1 of the Depositary Agreement.

“Construction Services Agreement” means the Interconnection Service Agreement among PJM, the Company and DPL effective as of June 19, 2012.

“Contingent Obligation” means, as to any Person, any obligation, agreement, understanding or arrangement (including purchase or repurchase agreements, reimbursement agreements with respect to letters of credit or acceptances, indemnity arrangements, grants of collateral to support the obligations of another Person, keep-well agreements and take-or-pay or through-put arrangements) of such Person guaranteeing or intended to guarantee any indebtedness, leases, dividends or other obligations of any other Person in any manner, whether directly or indirectly; provided, that the term “Contingent Obligation” shall not include endorsements of instruments for deposit or collection in the ordinary course of business.

“Control” means the possession, directly or indirectly (either alone or pursuant to an arrangement or understanding with one or more other Persons), of the power to direct or cause the direction of the management or policies of a Person, whether through the ownership of voting securities, by contract or otherwise, and the terms “Controlling” and “Controlled” shall have meanings correlative thereto.

“Controlled Entity” means any of the Subsidiaries of the Company and any Affiliate of the Company or Subsidiary of the Company that in each case is Controlled by the Company or a Subsidiary of the Company.

“Credit Documents” means this Agreement, any Notes, the Depositary Agreement, the Equity Contribution Agreement, the Collateral Documents, the Recapture Indemnities and Guarantees, and any other security agreements or letter agreement or similar document, and any amendment to the foregoing or consent or waiver given under the foregoing, entered into by any Secured Party, on the one hand, and the Company or one or more Affiliates of the Company, on the other hand, in connection with the transactions contemplated by the Credit Documents.

“Credit Event” means each of the Closing Date, each Drawdown and the Final Completion Date.

“Credit Parties” means the Company, Pledgor, Managing Member and Sponsor.

“[***] Guaranty” means the Guaranty, dated as of April 13, 2012, as amended by the First Amendment to Guarantee, dated as of March 20, 2013 and issued by [***] in favor of the Company and the Collateral Agent.

“Date Certain” means June 30, 2014.

“Debt” of any Person means, without duplication, (a) all obligations (including contingent obligations) of such Person for borrowed money, (b) all obligations of such Person evidenced by

[***] Confidential Treatment Requested

-5-

bonds, debentures, notes or other similar instruments, (c) all obligations of such Person to pay the deferred purchase price of property or services, except trade accounts payable and other accrued expenses arising in the ordinary course of business which in accordance with GAAP would not be shown on the liability side of the balance sheet of such Person, (d) all obligations of such Person under leases which are or should be, in accordance with GAAP, recorded as capital leases in respect of which such Person is liable, (e) all obligations of such Person to purchase securities (or other property) which arise out of or in connection with the sale of the same or substantially similar securities (or property), (f) all deferred obligations of such Person to reimburse any bank or other Person in respect of amounts paid or advanced under a letter of credit or other instrument, (g) all obligations, contingent or otherwise, of such Person in respect of acceptances, letters of credit or similar extensions of credit, (h) all Debt (as described in the preceding clauses) of others secured by (or for which the holder of such Debt has an existing right, contingent or otherwise, to be secured by) any Lien on any asset of such Person, whether or not such Debt is assumed by such Person and (i) all Debt (as described in the preceding clauses) of others guaranteed directly or indirectly by such Person or as to which such Person has an obligation which is substantially the economic equivalent of a guaranty.

“Debt Service” means, for the Company and for any period, all obligations for principal and interest payments and any fees, expenses and other charges, including fees and agent fees, due and payable in respect of all Debt for borrowed money in such period.

“Debt Service Reserve Account” is defined in Section 2.1 of the Depositary Agreement.

“Debt Service Reserve Requirement” means, with respect to any date and the Notes, an amount equal to the sum of (x) the greatest six (6) months of Debt Service under the Notes and (y) 90-days of RECs valued at [***] per REC, provided that the Debt Service Reserve Requirement shall never exceed the outstanding principal and interest to maturity of the Notes.

“Debtor Relief Laws” means the Bankruptcy Code of the United States, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws of the United States or other applicable jurisdictions from time to time in effect.

“Default” means an event or condition the occurrence or existence of which would, with the lapse of time or the giving of notice or both, become an Event of Default.

“Default Rate” means, with respect to any obligation payable under the Credit Documents, for any applicable period of time, the interest rate per annum equal to [***] above the interest rate otherwise applicable to such obligation for such period.

“Depositary” means Deutsche Bank Trust Company Americas, not in its individual capacity but solely as depositary agent, bank and securities intermediary under the Depositary Agreement.

“Depositary Agreement” means the Depositary Agreement, dated as of the Closing Date, among the Company, Collateral Agent and Depositary.

[***] Confidential Treatment Requested

-6-

“Direct Agreements” means the consents specified on Schedule 4.30.1 and any other third party consents to the assignments contemplated by the Credit Documents, in the form set forth in Exhibit 4.30.1.

“Disclosure Documents” is defined in Section 5.3.

“Disqualified Person” means (a) any Federal, State or local government (or any political subdivision, agency or instrumentality thereof); (b) any organization described in Section 501(c) of the Code and exempt from tax under Section 501(a) of the Code; (c) any entity referenced in Section 54(j)(4) of the Code; (d) any foreign person or entity as defined in Section 168(h)(2)(C) of the Code unless the exception under Section 168(h)(2)(B) of the Code applies with respect to the income from the Company for that Person; (e) any person described in Section 50(d)(1), including a real estate investment trust, as defined in Section 856(a) of the Code; and (f) any partnership or other pass-through entity (including a single member disregarded entity) any direct or indirect partner (or other direct or indirect holder of an equity or profits interest) of which is described in clauses (a)–(e) unless such person holds its interest in the partnership or other pass-through entity indirectly through a taxable “C” corporation; provided that, if and to the extent the definition of “Disqualified Person” under Section 1603 of the American Recovery and Reinvestment Act of 2009, as amended, is amended or supplemented after the Closing Date, the definition of “Disqualified Person” shall be interpreted to conform to such amendment or supplement and any Treasury guidance with respect thereto.

“Distribution Conditions” is defined in Section 10.10.

“Distribution Suspense Account” is defined in Section 2.1 of the Depositary Agreement.

“Dollars” and “$” means United States dollars or such coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debts in the United States of America.

“DPL” means Delmarva Power & Light Company, a Delaware and Virginia corporation.

“DPSC” means the Delaware Public Service Commission.

“Drawdown” means a disbursement of funds from the Construction Escrow Account in accordance with the terms of Section 3.2.2 of the Depositary Agreement.

“Drawdown Certificate” means a certificate delivered to the Holders substantially in the form of Exhibit 4.2.1(a).

“DSCR” means, for any period, the ratio of (a) Operating Cash Available for Debt Service for such period to (b) Debt Service for such period.

“Easements” shall have the meaning given in the granting clause of the applicable Mortgage.

“Efficiency Bank” is defined in the MESPA.

“Eligible Facility” means an “eligible facility” within the meaning of PUHCA.

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“Eminent Domain Proceeds” is defined in Section 1.1 of the Depositary Agreement.

“Energy” is defined in the Tariff.

“Environmental Consultant” means Terracon Consultants, Inc., or its successor appointed by the Required Holders and, for so long as no Event of Default or Default has occurred and is continuing, the Company.

“Environmental Laws” means any and all current or future federal, state, local and foreign statutes, laws, including common law, regulations or ordinances, rules, judgments, orders, decrees, permits licenses or restrictions imposed by a Governmental Authority relating to pollution or protection of the environment or natural resources and protection of human health, including but not limited to the National Environmental Policy Act, 42 U.S.C. Section 4321 et seq.; Federal Endangered Species Act, 16 U.S.C. Section 1551 et seq.; the Migratory Bird Treaty Act of 1918, 16 U.S.C. Section 703 et seq.; Bald and Golden Eagle Protection Act, 16 U.S.C. Section 668; and shall include all Hazardous Substances Laws.

“Environmental Reports” means, collectively, (a) the Phase 1 Environmental Site Assessment, Proposed Fuel Cell Facility (Red Lion Site) of Terracon Consultants, Inc. dated March 13, 2013 and (b) the Phase 1 Environmental Site Assessment, Proposed Fuel Cell Facility (Brookside Site) of Terracon Consultants, Inc., dated March 13, 2013.

“Equity Contribution Agreement” means the Equity Contribution Agreement, dated as of the Closing Date, among the Company, the Sponsor and the Collateral Agent.

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and the rules and regulations promulgated thereunder from time to time in effect.

“ERISA Affiliate” means any Person (whether or not incorporated) which is under common control with the Company within the meaning of section 4001(a) of ERISA or that is treated as a single employer together with the Company under section 414 of the Code.

“Event of Default” is defined in Article 11.

“Event of Eminent Domain” means any compulsory transfer or taking by condemnation, eminent domain or exercise of a similar power, or transfer under threat of such compulsory transfer or taking, of any part of the Collateral, by any agency, department, authority, commission, board, instrumentality or political subdivision of the State of Delaware, the United States or another Governmental Authority having jurisdiction.

“Exempt Wholesale Generator” means an “exempt wholesale generator” within the meaning of PUHCA and FERC’s regulations implementing PUHCA.

“Existing Financing Agreement” means the Credit Agreement, dated as of March 22, 2012, among the Company, the lenders party thereto and The Royal Bank of Scotland PLC as administrative agent and collateral agent.

-8-

“Existing Systems” means 8.8 MW of Systems manufactured and installed by Sponsor at the Sites pursuant to the MESPA which are operating as of the Closing Date.

“Federal Reserve Board” means the Board of Governors of the Federal Reserve System.

“FERC” means the Federal Energy Regulatory Commission and its successors.

“Final Completion” means the date upon which conditions set forth in Sections 4.3 and 4.4 have been satisfied or waived in writing by the Required Holders.

“Final Completion Date” means the date upon which Final Completion is achieved.

“Final Completion Date Distribution” means a distribution in an amount up to the amounts remaining on deposit in the Construction Escrow Account and the IDC Reserve Account, in the aggregate, following the occurrence of the Final Completion Date, to be made to the Pledgor by the Company on or after the Final Completion Date.

“FIRREA” means the Federal Institutions Reform, Recovery and Enforcement Act of 1989.

“Forced Outage Event” is defined in the Tariff.

“Forced Outage Tariff Structure” is defined in the Base Case Projections.

“FPA” means the Federal Power Act, as amended, and FERC’s implementing regulations related thereto.

“Funded System” means a System with respect to which a payment under the MESPA has been financed or, in the case of the Systems that were in operation on the Closing Date, refinanced with the proceeds of the Notes hereunder.

“GAAP” means generally accepted accounting principles as in effect from time to time in the

United States of America.

“Gas Service Agreements” means, collectively, (i) the Large Volume Gas Qualified Fuel Cell Provider-Renewable Capable Service Agreement, effective as of June 19, 2012, between the Sponsor and DPL (for the Brookside Site), as assigned by Sponsor to the Company pursuant to the Assignment and Assumption Agreement, dated as of March 13, 2013, and (ii) the Large Volume Gas Qualified Fuel Cell Provider-Renewable Capable Service Agreement, effective as of December 12, 2012 between the Company and DPL (for the Red Lion Site).

“Gas Tariff” mean’s DPL’s Service Classification “LVG-QFCP-RC” filed for gas service applicable to REPS Qualified Fuel Cell Provider Projects and approved by the DPSC in Order No. 8062 dated October 18, 2011, as adopted and supplemented by DPSC’s Findings, Opinion and Order No. 8079, dated December 1, 2011.

“Governing Documents” means, with respect to any Person, the certificate or articles of incorporation, bylaws, operating agreement or other organizational or governing documents of such Person, and, in particular, (a) in the case of any corporation, the certificate of incorporation

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and by-laws (or similar documents) of such Person, (b) in the case of any limited liability company, the certificate of formation and operating agreement (or similar documents) of such Person, (c) in the case of any limited partnership, the certificate of formation and limited partnership agreement (or similar documents) of such Person, (d) in the case of any general partnership, the partnership agreement (or similar document) of such Person and (e) in any other case, the functional equivalent of the foregoing.

“Governmental Authority” means the government of the United States or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank).

“Governmental Rule” means any constitution, code, statute, law, regulation, ordinance, rule, judgment, order, decree, binding directive, treaty or other governmental restriction or any similar form of decision of or determination by, any Governmental Authority.

“Guaranty” means, with respect to any Person, any obligation (except the endorsement in the ordinary course of business of negotiable instruments for deposit or collection) of such Person guaranteeing any indebtedness, dividend or other obligation of any other Person in any manner, whether directly or indirectly, including (without limitation) obligations incurred through an agreement, contingent or otherwise, by such Person:

(a) to purchase such indebtedness or obligation or any property constituting security therefor;

(b) to advance or supply funds (i) for the purchase or payment of such indebtedness or obligation, or (ii) to maintain any working capital or other balance sheet condition or any income statement condition of any other Person or otherwise to advance or make available funds for the purchase or payment of such indebtedness or obligation;

(c) to lease properties or to purchase properties or services primarily for the purpose of assuring the owner of such indebtedness or obligation of the ability of any other Person to make payment of the indebtedness or obligation; or

(d) otherwise to assure the owner of such indebtedness or obligation against loss in respect thereof.

In any computation of the indebtedness or other liabilities of the obligor under any Guaranty, the indebtedness or other obligations that are the subject of such Guaranty shall be assumed to be direct obligations of such obligor.

“Hazardous Substances” means any and all substances or materials defined as “hazardous substances,” “pollutants,” “contaminants,” “hazardous waste,” “hazardous materials,” “regulated substances,” “hazardous chemical substance or mixture,” “imminently hazardous chemical substance or mixture,” toxic substances,” or similar terms, as such terms are designated, regulated classified, listed, or defined under or with respect to which any liability

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may be imposed pursuant to any Hazardous Substances Law, including without limitation any petroleum product (including byproducts or breakdown products of petroleum products), asbestos-containing material, polychlorinated biphenyls or urea formaldehyde foam insulation.

“Hazardous Substances Law” means any of:

(a) the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (42 U.S.C. Section 9601 et seq.);

(b) the Federal Water Pollution Control Act (33 U.S.C. Section 1251 et seq.);

(c) the Resource Conservation and Recovery Act (42 U.S.C. Section 6901 et seq.);

(d) the Clean Air Act (42 U.S.C. Section 7401 et seq.);

(e) the Emergency Planning and Community Right to Know Act (42 U.S.C. Section 11001 et seq.);

(f) the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. Section 136 et seq.);

(g) the Oil Pollution Act of 1990 (P.L. 101-380, 104 Stat. 486);

(h) the Safe Drinking Water Act (42 U.S.C. Section 300f et seq.);

(i) the Toxic Substances Control Act (15 U.S.C. Section 2601 et seq.);

(j) the Hazardous Materials Transportation Act (49 U.S.C. Section 1801 et seq.);

(k) applicable Delaware statutes related to the release of Hazardous Substances;

(l) Delaware ordinances and regulations related to the release of Hazardous Substances; and

(m) all other federal, state, local and municipal Governmental Rules, any and all Legal Requirements, and any and all common law requirements, rules and bases of liability regulating, relating to, or imposing liability or standards of conduct concerning pollution or protection of human health or the environment or which otherwise govern Hazardous Substances, as are now or may at any time hereafter be in effect, together with the regulations adopted pursuant to all foregoing.

“Holder” means, with respect to any Note, the Person in whose name such Note is registered in the register maintained by the Company pursuant to Section 13.1, provided, however, that if such Person is a nominee, then for the purposes of Articles 7 and 12, Section 17.2 and Article 18 and any related definitions in this Schedule B, “Holder” shall mean the beneficial owner of such Note whose name and address appears in such register.

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“Hot Box Replacement” means the permanent removal and replacement of the rack-mounted assemblies containing the arrays of fuel cell components in a System (which, for example in a Model ES-5700, includes six such assemblies).

“IDC Reserve Account” is defined in Section 2.1 of the Depositary Agreement.

“Improvements” is defined in the Mortgage.

“Independent Consultants” means, collectively, the Insurance Consultant and the Independent Engineer.

“Independent Engineer” means SAIC Energy, Environment & Infrastructure, LLC, or its successor appointed by the Required Holders, and for so long as no Event of Default or Default has occurred and is continuing, the Company.

“Independent Engineer’s COD Certificate” means a certificate delivered to the Holders, substantially in the form of Exhibit 4.2.1(d).

“Independent Engineer’s Drawdown Certificate” means a certificate delivered to the Holders, substantially in the form of Exhibit 4.2.1(b).

“INHAM Exemption” is defined in Section 6.2(e).

“Institutional Investor” means (a) any Purchaser of a Note, (b) any Holder of a Note holding (together with one or more of its affiliates) more than 5% of the aggregate principal amount of the Notes then outstanding, (c) any bank, trust company, savings and loan association or other financial institution, any pension plan, any investment company, any insurance company, any broker or dealer, or any other similar financial institution or entity, regardless of legal form, and (d) any Related Fund of any Holder of any Note.

“Insurance Consultant” means Moore-McNeil LLC, or its successor appointed by the Required Holders, and for so long as no Event of Default or Default has occurred and is continuing, the Company.

“Insurance Proceeds” is defined in Section 1.1 of the Depositary Agreement.

“Interconnection Agreements” mean the (a) Interconnection Service Agreement, dated June 19, 2012, entered into among Company, PJM and DPL with respect to the Red Lion Site, and the (b) the Standard Agreement for Interconnection, dated March 27, 2012, entered into by Company and DPL with respect to the Brookside Site.

“Interparty Agreement” means the Interparty Agreement, dated as of the Closing Date, among Company, Pledgor, Managing Member, Tax Equity Investors and the Collateral Agent.

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“Knowledge” means, with respect to the Company, the actual knowledge of the senior managers of the Company who are charged with direct or indirect responsibility for the Project.

“Leases” means the Red Lion Lease and the Brookside Lease.

“Legal Requirements” means, as to any Person, the Governing Documents of such Person, any requirement under a Permit, and any Governmental Rule in each case applicable to or binding upon such Person or any of its properties or to which such Person or any of its property is subject.

“Lien” means, with respect to any Person, any mortgage, lien, pledge, charge, security interest or other encumbrance, or any interest or title of any vendor, lessor, lender or other secured party to or of such Person under any conditional sale or other title retention agreement or Capital Lease, upon or with respect to any property or asset of such Person (including in the case of stock, stockholder agreements, voting trust agreements and all similar arrangements).

“Loss Event” is defined in Section 1.1 of the Depositary Agreement.

“Loss Proceeds” is defined in Section 1.1 of the Depositary Agreement.

“Loss Proceeds Account” is defined in Section 2.1 of the Depositary Agreement.

“Major Project Documents” means the MESPA, the MOMA, the Interconnection Agreements, each Lease, the Easements, the Service Application, the Administrative Services Agreement, the Gas Service Agreements, the Construction Services Agreement, any guaranty agreements related to the foregoing executed by Persons in favor of Company and, unless otherwise agreed by the Required Holders prior to its execution and delivery, any Additional Project Document.

“Major Project Participants” means, without duplication, the Company, Managing Member, Sponsor, Operator, PJM, Pledgor, DPL, the Administrative Services Provider, any indemnitor under a Recapture Indemnity and Guarantee and any guarantor thereof, the Tax Equity Investors party to the Interparty Agreement, and to the extent not already included in this list, any counterparty to a Major Project Document.

“Make-Whole Amount” is defined in Section 8.6.

“Managing Member” means Clean Technologies II, LLC, a Delaware limited liability company.

“Material” means material in relation to the business, operations, affairs, financial condition, assets, properties, or prospects of the Company taken as a whole.

“Material Adverse Effect” means an event, circumstance, condition or occurrence of whatever nature that materially and adversely affects (a) the business, assets (including the Project), property, prospects, results of operation or financial condition of a Major Project Participant, (b) the Company’s rights to the Project and the Project assets, (c) any Major Project Participant’s ability to perform its obligations under the Operative Documents, (d) the validity or priority of the Secured Parties’ security interests in the Collateral, or (e) the validity or enforceability of any Operative Document (including the ability of the Secured Parties to enforce any of their remedies thereunder).

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“Maturity Date” means March 30, 2025.

“[***]” means [***], a Delaware corporation.

“Memorandum” is defined in Section 5.3.

“MESPA” means the Master Energy Server Purchase Agreement between Sponsor and the Company, dated as of April 13, 2012, as amended by the Omnibus Amendment.

“MOMA” means the Master Operations and Maintenance Agreement, between the Company and Operator, dated as of April 13, 2012, as amended by the Omnibus Amendment.

“Mortgage” means the Leasehold Mortgage, Security Agreement, Assignment of Rents, and Financing Statement and Fixture Filing, dated as of the Closing Date, in form and substance satisfactory to the Purchasers, between the Company and Collateral Agent.

“Mortgaged Property” is defined in the granting clause of the Mortgage.

“Multiemployer Plan” means any Plan that is a “multiemployer plan” (as such term is defined in section 4001(a)(3) of ERISA).

“NAIC” means the National Association of Insurance Commissioners or any successor thereto.

“NAIC Annual Statement” is defined in Section 6.2(a).

“Net Available Amount” is defined in Section 1.1 of the Depositary Agreement.

“Note Redemption Account”is defined in Section 2.1 of the Depositary Agreement.

“Notes” is defined in Article 1.

“O&M Costs” means, for any period, cash amounts incurred and paid by the Company for the operation and maintenance of the Project or any portion thereof and for the purchase of goods and services in connection therewith, including (a) premiums for insurance policies, (b) costs of fuel and other consumables, (c) costs of obtaining any other materials, supplies, utilities or services for the Project, (d) costs of maintaining, renewing and amending Permits, (e) franchise, licensing, property, real estate, sales and excise Taxes, (f) general and administrative expenses, (g) employee salaries, wages and other employment-related costs, (h) business management and administrative service fees, (i) costs required to be paid by the Project under any Project Document or Credit Document (other than scheduled Debt Service and Project Costs but including scheduled interest or lease payments in respect of other Permitted Debt) or to satisfy any Legal Requirement or obtain or maintain any Permit, (j) legal, accounting and consulting fees and other transaction costs and all other fees payable to the Holders (other than amounts constituting scheduled Debt Service), (k) necessary Capital Expenditures (other than capital expenditures made in connection with the repair or restoration of any casualty suffered by the

[***] Confidential Treatment Requested

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Project to the extent funded with insurance or similar proceeds applied pursuant to Section 3.7 of the Depositary Agreement or infusions of equity pursuant to the Credit Documents), and (l) all other fees and expenses necessary for the continued operation and maintenance of the Project and the conduct of the business of the Project, but exclusive in all cases of non-cash charges and also exclusive of all interest charges and charges for the payment or amortization of principal of the Notes. O&M Costs shall not include payments for restoration or repair of the Project from the Loss Proceeds Account or income Taxes.

“Obligations” means and includes all loans, advances, debts, liabilities, and obligations, howsoever arising, owed by the Company or the Pledgor (or, if such term is used by reference to any specific Person, by such Person) to any of the Secured Parties of every kind and description (whether or not evidenced by any note or instrument and whether or not for the payment of money), direct or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, pursuant to the terms of the Credit Documents, including (a) all principal, interest, Make-Whole Amount, fees, charges, expenses, attorneys’ fees and accountants fees, repayment obligations, prepayment obligations, and reimbursement obligations payable by the Company or the Pledgor thereunder, (b) the due and punctual performance of all covenants, agreements, obligations and liabilities of the Company or the Pledgor to the Secured Parties under or pursuant to the Credit Documents, (c) any and all sums advanced by any of the Secured Parties to preserve the Collateral or preserve or perfect Liens in the Collateral, and (d) in the event of any proceeding for the collection or enforcement described herein, after an Event of Default has occurred and is continuing and unwaived in accordance with the provisions hereof, the expenses of retaking, holding, preparing for sale or lease, selling or otherwise disposing of or realizing on the Collateral, or of any exercise by Collateral Agent, on behalf of the Secured Parties, of its rights under the Collateral Documents, together with reasonable attorney’s fees and court costs.

“OFAC” is defined in Section 5.16(a).

“OFAC Listed Person” is defined in Section 5.16(a).

“OFAC Sanctions Program” means any economic or trade sanction that OFAC is responsible for administering and enforcing. A list of OFAC Sanctions Programs may be found at http://www.ustreas.gov/offices/enforcement/ofac/programs/.

“Offer Settlement Date” is defined in Section 8.1.3(b).

“Offer to Repay” is defined in Section 8.1.3(b).

“Offer to Repay Notice” is defined in Section 8.1.3(b).

“Omnibus Amendment” means the Omnibus First Amendment to MESPA, MOMA and ASA, dated as of March 20, 2013, entered into among the Company, the Sponsor and Pledgor.

“Operating Account” is defined in Section 2.1 of the Depositary Agreement.

“Operating Budget Category” means (a) individually, any line item category set forth in that portion of the then-current Annual Operating Budget showing sources and uses of Project funds, and (b) collectively, all line item categories set forth in that portion of the then-current Annual Operating Budget showing sources and uses of Project funds.

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“Operating Cash Available for Debt Service” means, for any period, Project Revenues during such period minus O&M Costs during such period.

“Operative Documents” means, collectively, the Credit Documents and the Project Documents.

“Operator” means Bloom Energy Corporation, a Delaware corporation.

“PBGC” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA or any successor thereto.

“Performance Tests” means any tests under the MESPA to demonstrate COD.

“Permit” means any approval, consent, waiver, exemption, variance, franchise, order, permit, authorization, right or license of or from a Governmental Authority.

“Permitted Debt” means (a) Debt incurred under the Credit Documents, (b) Debt pursuant to the terms of a Project Document (but not for borrowed money), either not more than 90 days past due or being contested in good faith, (c) trade or other similar Debt incurred in the ordinary course of business (but not for borrowed money), either not more than 90 days past due or being contested in good faith, (d) the following contingent liabilities, to the extent otherwise constituting Debt: (i) the acquisition of goods, supplies or merchandise in the normal course of business or normal trade credit, (ii) the endorsement of negotiable instruments received in the normal course of its business, and (iii) contingent liabilities incurred with respect to any Applicable Permit or Operative Document, (e) purchase money obligations incurred to finance the purchase price of discrete items of equipment not comprising an integral part of the Project that extend only to the equipment being financed in an aggregate amount of secured principal and capital lease obligations not exceeding [***] at any one time outstanding, and (f) obligations in respect of surety bonds or similar instruments in an aggregate amount not exceeding [***] at any one time outstanding.

“Permitted Distribution” means a distribution in an amount not to exceed [***] to be made to the Pledgor by the Company as of the Closing Date, subject to the satisfaction of the relevant conditions precedent under Section 4.1.

“Permitted Investments” is defined in the Depositary Agreement.

“Permitted Liens” means (a) the rights and interests of any Secured Party as provided in the Credit Documents; (b) statutory Liens for any current Tax, assessment or other governmental charge not yet due and payable, and Liens for Taxes, assessments or governmental charges being contested in accordance with the requirements of Section 9.4; (c) materialmen’s, mechanics’, workers’, repairmen’s, employees’ or other like Liens, arising in the ordinary course of business or in connection with the construction, operation or maintenance of the Project, either for amounts not yet due or for amounts being contested in good faith and by appropriate proceedings, so long as (i) such proceedings shall not involve any substantial danger of the sale, forfeiture or loss of the Project, either Site or any Easements, as the case may be, title thereto or

[***] Confidential Treatment Requested

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any interest therein and shall not interfere in any material respect with the use or disposition of the Project, either Site or any Easements, (ii) a bond or other security reasonably acceptable to the Holders has been posted or provided in such manner and amount as to assure the Holders that any amounts determined to be due will be promptly paid in full when such contest is determined, or (iii) adequate cash reserves have been provided therefor; (d) Liens arising out of judgments or awards so long as an appeal or proceeding for review is being prosecuted in good faith and for the payment of which adequate reserves, bonds or other security reasonably acceptable to the Holders have been provided or are fully covered by insurance; (e) the Title Exceptions; (f) Liens, deposits or pledges to secure statutory obligations or performance of bids, tenders, contracts (other than for the repayment of borrowed money) or leases, or for purposes of like general nature in the ordinary course of its business, not to exceed [***] in the aggregate at any time, and with any such Lien to be released as promptly as practicable; (g) other Liens incident to the ordinary course of business that are not incurred in connection with the obtaining of any loan, advance or credit and that do not in the aggregate materially impair the use of the property or assets of Company or the value of such property or assets for the purposes of such business; and (h) involuntary Liens as contemplated by the Operative Documents (including a Lien of an attachment, judgment or execution) securing a charge or obligation, on any of Company’s property, either real or personal, whether now or hereafter owned in the aggregate sum of less than [***].

“Person” means an individual, partnership, corporation, limited liability company, association, trust, unincorporated organization, business entity or Governmental Authority.

“PJM” means PJM Interconnection, L.L.C., a regional transmission organization.

“PJM Agreements” is defined in the Tariff.

“PJM Grid” means the system of transmission lines and associated facilities that have been placed under PJM’s operational control.

“Placed in Service Date” means the date on which each System is “placed-in-service” within the meaning of the Code and Cash Grant Guidance.

“Placement Agent” is defined in Section 5.3.

“Plan” means an “employee benefit plan” (as defined in section 3(3) of ERISA) subject to Title I of ERISA that is or, within the preceding six years, has been established or maintained, or to which contributions are or, within the preceding six years, have been made or required to be made, by the Company or any ERISA Affiliate or with respect to which the Company or any ERISA Affiliate may have any liability.

“Pledge Agreement” means, the Pledge and Security Agreement, dated as of the Closing Date, in form and substance satisfactory to the Purchasers, among Pledgor, the Company and Collateral Agent.

“Pledgor” means Diamond State Generation Holdings, LLC, a Delaware limited liability company.

[***] Confidential Treatment Requested

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“Portfolio” means, on an aggregate basis, all Systems owned by Company at any time that were purchased pursuant to the MESPA and that have achieved COD, other than Systems that have been repurchased by Sponsor pursuant to the terms of the MESPA.

“Project” means a portfolio of up to 150 Bloom Energy baseload fuel cell electricity generators with an aggregate capacity of 30 MW to be located on the Sites and the Easements commonly known as Brookside (for the 3 MW part of the Project, in Newark, Delaware) and Red Lion (for the 27 MW part of the Project, in New Castle County, Delaware).

“Project Budget” means the budget for all anticipated costs to be incurred in connection with the development, construction, installation, timing and start-up of the Project as set forth in Schedule 4.1.26.

“Project Costs” means: (a) the Purchase Price (as defined in the MESPA) of Systems; (b) all other Project-related costs and other development costs (including all Site related costs payable to any Person, including landowners or any Governmental Authority), insurance costs, management services fees and expenses and expenses to complete the development, design, construction and financing of the Project; (c) contingency funds, start-up costs and initial working capital costs; (d) O&M Costs due and payable prior to Final Completion; and (f) interest and fees pursuant to this Agreement prior to Final Completion.

“Project Document Modification” is defined in Section 10.13.

“Project Documents” means, without duplication, the Major Project Documents and any other agreement or document relating to the development, construction or operation of the Project to which the Company is a party.

“Project Revenues” means, without duplication, all income and cash receipts of the Company derived from the ownership or operation of the Project (other than Cash Grant proceeds), including payments received by the Company from DPL pursuant to the Tariff, from Sponsor under the MESPA and the MOMA (other than payments permitted to be deposited into the System Refund Account), proceeds of any delay in start up or business interruption or liability insurance (to the extent such liability insurance proceeds represent reimbursement of third party claims previously paid by the Company), income derived from the sale or use of electric capacity or energy transmitted or distributed or ancillary services or environmental attributes produced by the Project, proceeds from sale of assets, investment income on amounts in the Accounts (solely to the extent deposited in the applicable Account), but excluding solely for purposes of calculating Operating Cash Available for Debt Service, (a) any receipts derived from the sale of any property pertaining to the Project or incidental to the operation of the Project, as determined in conformity with cash accounting principles, (b) proceeds of casualty insurance, (c) performance liquidated damages under the MESPA and MOMA, (d) the proceeds of any condemnation awards relating to the Project and (e) proceeds from the Collateral Documents.

“Project Schedule” means the schedule for construction and completion of the Project as set forth in Schedule 4.1.28.

“property” or “properties” means, unless otherwise specifically limited, real or personal property of any kind, tangible or intangible, choate or inchoate.

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“Prudent Electrical Practices” is defined in the MESPA.

“PTE” is defined in Section 6.2(a).

“PUHCA” means the Public Utility Holding Company Act of 2005 (42 U.S.C. §§ 16451-16463), and FERC’s implementing regulations related thereto (18 C.F.R. Part 366).

“Purchaser” or “Purchasers” means each of the purchasers whose signatures appear at the end of this Agreement and such Purchaser’s successors and assigns (so long as any such assignment complies with Section 13.2), provided, however, that any Purchaser of a Note that ceases to be the registered holder or a beneficial owner (through a nominee) of such Note as the result of a transfer thereof pursuant to Section 13.2 shall cease to be included within the meaning of “Purchaser” of such Note for the purposes of this Agreement upon such transfer.

“QFCP Generator” is defined in the Tariff.

“QPAM Exemption” is defined in Section 6.2(d).

“Qualified Fuel Cell Provider” is defined in the Tariff.

“Qualified Fuel Cell Provider Project” is defined in the Tariff.

“Qualified Institutional Buyer” means any Person who is a “qualified institutional buyer” within the meaning of such term as set forth in Rule 144A(a)(1) under the Securities Act.

“Ramp Up Period” means the period from the Closing Date through the Final Completion Date.

“Rating Agency” means Fitch Ratings Inc. to the extent that at each relevant time of determination, it has an active and current rating in effect on the Notes, or if Fitch Ratings Inc. shall cease to rate debt instruments of the type similar to the Notes, another nationally recognized rating agency or agencies then rating debt instruments of a type similar to the Notes as shall be selected by the Holders, in consultation with the Company, as a substitute therefor.

“Rating Event” is defined in Section 9.23.

“Real Property” means the real property, including the Sites and the Improvements, which is the subject of the Mortgages.

“Real Property Documents” means any documents, agreements or instruments pursuant to which Company has rights in Real Property, all easements, sub-easements, leases, subleases, licenses and other agreements with landowners, any non-disturbance agreements and any deeds pursuant to which Company owns a fee interest in real property.

“REC” means renewable energy credits.

“Recapture Indemnities and Guarantees” means each of (i) the Cash Grant Indemnity Agreement, dated as of March 20, 2013, by the Sponsor in favor of the Company and the Collateral Agent, (ii) the Cash Grant Indemnity Agreement, dated as of March 20, 2013, by [***] in favor of the Company and the Collateral Agent and (iii) the [***] Guaranty.

[***] Confidential Treatment Requested

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“Recapture Liabilities” means any loss, liability or payment resulting from or required to be made to the United States of America (or any agency or instrumentality thereof) resulting from all or any portion of the Cash Grant being “recaptured” or disallowed as a result of the Project or any part thereof being disposed of, all or any portion of the Project ceasing to be specified energy property, an ownership interest in the Project or the Company being disposed of during the Recapture Period to a Disqualified Person, or otherwise, including any interest and penalties related thereto.

“Recapture Period” means the period commencing on the Placed in Service Date and ending on the fifth anniversary of the Placed in Service Date or, to the extent applicable, such different period as prescribed under the Code.

“Red Lion Lease” means the amended and restated lease agreement between Company and DPL, dated as of June 26, 2012, relating to property located at 1593 River Road, New Castle, Delaware 19720, as amended from time to time

“Red Lion Site” means the real property which is the subject of the Red Lion Lease.

“Related Fund” means, with respect to any Holder of any Note, any fund or entity that (i) invests in Securities or bank loans, and (ii) is advised or managed by such Holder, the same investment advisor as such Holder or by an affiliate of such Holder or such investment advisor.

“Release” means disposing, discharging, injecting, spilling, leaking, leaching, dumping, pumping, pouring, emitting, escaping or emptying into or upon any land or water or air.

“Repayment Date” has the meaning assigned to such term in the Amortization Schedule.

“Reportable Event” means any of the events set forth in section 4043(b) or (c) of ERISA for which notice to the PBGC has not been waived.

“REPS Act” means the Renewable Energy Portfolio Standards Act, as amended by S.B. 124, enacted July 10, 2011 (Title 26, Chap. 1, section 351 et seq. of the Code of the State of Delaware).

“Required Holders” means at any time on or after the Closing, the Holders of at least 50.1% in principal amount of the Notes at the time outstanding (exclusive of Notes then owned by the Company or any of its Affiliates).

“Responsible Officer” means, as to any Person, its president, chief executive officer, any vice president, treasurer, secretary, or assistant secretary, or any natural Person who is a managing general partner or manager or managing member of a limited liability company (or any of the preceding with regard to any such managing general partner, manager or managing member).

“Revenue Account” is defined in Section 2.1 of the Depositary Agreement.

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“Rights of Way” is defined in Section 4.1.37(vi).

“SEC” means the Securities and Exchange Commission of the United States, or any successor thereto.

“Secured Parties” means Collateral Agent and the Holders of the Notes, and each of their respective successors, transferees and assigns and shall include, without limitation, all former Collateral Agents and Holders of Notes to the extent that the Obligations owing to such Persons were incurred while such Persons were in such capacities and such Obligations have not been paid or satisfied in full; provided, that no Affiliate of Sponsor shall be a “Secured Party.”

“Securities” or “Security” shall have the meaning specified in section 2(1) of the Securities Act.

“Securities Act” means the Securities Act of 1933, as amended from time to time, and the rules and regulations promulgated thereunder from time to time in effect.

“Security Agreement” means the Security Agreement, dated as of the Closing Date, in form and substance satisfactory to the Purchasers, between the Company and Collateral Agent.

“Senior Financial Officer” means the chief financial officer, principal accounting officer, treasurer or comptroller of the Company.

“Service Application” is defined in the Tariff.

“Sites” means the Brookside Site and the Red Lion Site.

“Solvent” means, with respect to any Person, that as of the date of determination, (a) the aggregate value of all properties of such Person at their present saleable value (i.e., the amount that may be realized within a reasonable time, considered to be six months to one year, either through collection or sale at the regular market value, conceiving the latter as the amount that could be obtained for the property in question within such period by a capable and diligent businessperson from an interested buyer who is willing to purchase under ordinary selling conditions), exceed the amount of all the debts and liabilities (including contingent, subordinated, unmatured and unliquidated liabilities) of such Person, (b) such Person will not, on a consolidated basis, have an unreasonably small capital with which to conduct its business operations heretofore conducted and (c) such Person will have, on a consolidated basis, sufficient cashflow to enable it to pay its debts as they mature.

“Source” is defined in Section 6.2.

“Sponsor” means Bloom Energy Corporation, a Delaware corporation.

“Subsidiary” means, as to any Person, a corporation, partnership, limited liability company, limited liability partnership or other entity of which such Person: (a) owns 10% or more of the shares of stock or other ownership interests having ordinary voting power (other than stock or such other ownership interests having such power only by reason of the happening of a contingency) to elect a majority of the board of directors or other managers of such corporation, partnership or other entity and/or (b) controls the management, directly or indirectly through one or more intermediaries.

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“Super-Majority Holders” means at any time on or after the Closing Date, the Holders of at least 80% in principal amount of the Notes at the time outstanding (exclusive of Notes then owned by the Company or any of its Affiliates).

“SVO” means the Securities Valuation Office of the NAIC or any successor to such Office.

“System” means each proprietary solid oxide fuel cell power generating unit to be purchased from Sponsor by the Company under the MESPA.

“System Liability Cap” means the liability caps referred to in Sections 8.2(b), 8.3(c), 8.9 and 10.5 of the MESPA and Sections 2.5(c), 2.8 and 7.1 of the MOMA.

“System Refund Account” means the account established by the Company into which, if any payments are received by the Company from the Sponsor based on refunds for a System’s purchase deposit (in accordance with Section 3.2(d) of the MESPA) or if there is a full refund of the purchase price of a full System (in accordance with Section 8.3 of the MESPA) and the applicable System is not a Funded System, any payment received by the Company representing the proportional amount thereof allocable to the equity in the Company will be deposited, provided that such account shall not be an “Account” under the Depositary Agreement.

“Tariff” means DPL’s Service Classification “QFCP-RC” for REPS Qualified Fuel Cell Provider Projects as approved by the DPSC in Order No. 8062 dated October 18, 2011, as adopted and supplemented by DPSC’s Findings, Opinion and Order No. 8079, dated December 1, 2011.

“Tax Equity Investors” means [***] and any other one or more investors in “Class B” membership interests in Pledgor (as contemplated by the limited liability company agreement of Pledgor as in effect on the Closing Date).

“Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.

“Title Exception” means the exceptions to title set forth in the Title Policy.

“Title Insurer” means First American Title Insurance Company.

“Title Policy” means the policy of the title insurance issued by the Title Insurer dated as of the Closing Date, including all amendments thereto, endorsements thereof and substitutions or replacements therefor.

“UCC” means the Uniform Commercial Code as the same may, from time to time, be in effect in the State of New York; provided, in the event that, by reason of mandatory provisions of law, any or all of the perfection or priority of the security interest in any Collateral is governed by the Uniform Commercial Code as in effect in a jurisdiction other than the State of New York the

[***] Confidential Treatment Requested

-22-

term “UCC” shall mean the Uniform Commercial Code as in effect in such other jurisdiction for purposes of the provisions of the Credit Documents relating to such perfection or priority and for purposes of definitions related to such provisions.

“Unsatisfied Condition” means a condition in a Permit that has not been satisfied and that either (a) must be satisfied before such Permit can become effective, (b) must be satisfied as of the date on which a representation is made or a condition precedent must be satisfied under this Agreement, or (c) must be satisfied as of a future date but with respect to which facts or circumstances exist which, to the Company’s Knowledge, could reasonably be expected to result in a failure to satisfy such Permit condition, and which failure could reasonably result in a Material Adverse Effect.

“USA PATRIOT Act” means United States Public Law 107-56, Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001, as amended from time to time, and the rules and regulations promulgated thereunder from time to time in effect.

-23-

RULES OF INTERPRETATION

1. The singular includes the plural and the plural includes the singular.

2. The word “or” is not exclusive. Thus, if a party “may do (a) or (b)”, then the party may do either or both. The party is not limited to a mutually exclusive choice between the two alternatives.

3. A reference to a Governmental Rule includes any amendment or modification to such Governmental Rule, and all regulations, rulings and other Governmental Rules promulgated under such Governmental Rule.

4. A reference to a Person includes its successors and permitted assigns to the extent permitted and in accordance with the terms of the Credit Documents.

5. Accounting terms have the meanings assigned to them by GAAP, as applied by the accounting entity to which they refer.

6. The words “include,” “includes” and “including” are not limiting.

7. A reference in a document to an Article, Section, Exhibit, Schedule, Annex or Appendix is to the Article, Section, Exhibit, Schedule, Annex or Appendix of such document unless otherwise indicated. Exhibits, Schedules, Annexes or Appendices to any document shall be deemed incorporated by reference in such document.

8. References to any document, instrument or agreement (a) shall include all exhibits, schedules and other attachments thereto, (b) shall include all documents, instruments or agreements issued or executed in replacement thereof, and (c) means such document, instrument or agreement, or replacement or predecessor thereto, as amended, waived, supplemented, restructured, repaid, refunded, refinanced or otherwise modified (in each case, to the extent applicable) from time to time (to the extent permitted and in accordance with the terms of the Credit Documents) and in effect at any given time.

9. The words “hereof,” “herein” and “hereunder” and words of similar import when used in any document shall refer to such document as a whole and not to any particular provision of such document.

10. References to “days” means calendar days, unless the term “Business Days” shall be used. References to a time of day means such time in New York, New York, unless otherwise specified. If the Company or any Affiliate of the Company is required to perform an action, deliver a document or take such other action by a calendar day and such day is not a Business Day, then the Company or such Affiliate shall take such action by the next succeeding “Business Day.”

11. The Credit Documents are the result of negotiations among, and have been reviewed by the Company, the Pledgor, the Purchasers, the Collateral Agent, the Depositary and their respective counsel. Accordingly, the Credit Documents shall be deemed to be the product of all parties thereto, and no ambiguity shall be construed in favor of or against the Company, the Pledgor, the Purchasers, the Collateral Agent and the Depositary.

-24-

12. The words “will” and “shall” shall be construed to have the same meaning and effect.

13. Capitalized terms in any Credit Document have the meanings set forth therein and any capitalized term used in a Credit Document and not defined therein or in this Schedule B but in another Credit Document has the meaning in such other Credit Document.

14. Any term defined in this Schedule B by reference to another document, instrument or agreement shall continue to have the meaning ascribed thereto, as in full force and effect as of the date of this Agreement (without giving effect to any amendment to such terms unless expressly consented to by the Collateral Agent and the Holders of the Notes), whether or not such other document, instrument or agreement remains in effect.

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SCHEDULE 4.1.22

LITIGATION

1. Nichols et al. v. Markell et al., No. 1:12-cv-00777, currently pending in the United States District Court for the District of Delaware.

2. John A. Nichols v. State Coastal Zone Industrial Control Board, Delaware Department of Natural Resources and Environmental Control, and Diamond State Generation Partners, LLC, C.A. No. N12A-07-001 MMJ (Delaware Superior Court), dismissal of Nichols’ appeal affirmed by the Delaware Superior Court on March 14, 2013; Nichols has 30 days to file an appeal with the Delaware Supreme Court.

SCHEDULE 4.1.22 TO NOTE PURCHASE AGREEMENT

[***]

[***] Confidential Treatment Requested

[***]

[***] Confidential Treatment Requested

[***]

[***] Confidential Treatment Requested

SCHEDULE 4.1.30

LIST OF DIRECT AGREEMENTS

1. Direct Agreement with respect to the MESPA.

2. Direct Agreement with respect to the MOMA.

3. Direct Agreement with respect to the Administrative Services Agreement.

SCHEDULE 4.1.30 TO NOTE PURCHASE AGREEMENT

SCHEDULE 5.3

DISCLOSURE MATERIALS

1. Base Case Projections.

2. “USPP Investor Presentation” of January 2013 posted to the datasite established by J.P. Morgan Securities LLC with respect to Note Purchase Agreement.

SCHEDULE 5.3 TO NOTE PURCHASE AGREEMENT

SCHEDULE 5.5

FINANCIAL STATEMENTS

1. Audited annual financial statements of Bloom Energy Corporation for the year ended December 31, 2011.

2. Unaudited quarterly financial statements of Bloom Energy Corporation for the quarter ended September 30, 2012.

3. Unaudited quarterly financial statements of Diamond State Generation Partners, LLC for the quarter ended September 30, 2012.

SCHEDULE 5.5 TO NOTE PURCHASE AGREEMENT

SCHEDULE 5.15

EXISTING DEBT

Debt in the amount of [***] (including a [***] debt service reserve letter of credit) of the Company under the Credit Agreement, dated as of March 22, 2012, among the Company, The Royal Bank of Scotland plc as administrative agent and collateral agent, and the lenders party thereto.

[***] Confidential Treatment Requested

SCHEDULE 5.15

(to Note Purchase Agreement)

SCHEDULE 5.19

PERMITS

Part I

Brookside

Permit	Issuing Authority	Status
National Pollutant Discharge Elimination System (“NPDES”) Permit (construction)	Delaware Department of Natural Resources and Environmental Control (“DNREC”)	Approved
Air Permit	DNREC	Approved
Stormwater Review and Engineering Approval	New Castle/DNREC	Completed
Planning Dept. and Site Plan Approval	New Castle County	Approved
Feasibility Study	PJM	Completed
Generation Interconnection Facilities Study Report	PJM	Completed
DelDOT Entrance Permit	DDOT	Issued
NPDES Notice of Termination (“NOT”)	DNREC	The NOT will be filed once construction has finished
Notice of Self-Certification of Exempt Wholesale Generator Status, filed in Docket No. EG12-44-000.	FERC	Filed March 15, 2012.
DPL’s Service Classification “LVG-QFCP-RC” filed for gas service applicable to REPS Qualified Fuel Cell Provider Projects	Delaware Public Services Commission (DPSC)	Approved by the DPSC in Order No. 8062 dated October 18, 2011, as adopted and supplemented by DPSC’s Findings, Opinion and Order No. 8079, dated December 1, 2011
DPL’s Service Classification “QFCP-RC” for REPS Qualified Fuel Cell Provider Projects	DPSC	Approved by the DPSC in Order No. 8062 dated October 18, 2011, as adopted and supplemented by DPSC’s Findings, Opinion and Order No. 8079, dated December 1, 2011
Order from FERC granting Project Company MBR Authority	FERC	Issued

SCHEDULE 5.19 TO NOTE PURCHASE AGREEMENT

Part II

Red Lion

Permit	Issuing Authority	Status
Stormwater Discharge Notice of Intent (formerly listed as “NOI”)	DNREC	Completed
Waiving of 100 foot well restriction on the deed	Delaware City Refining Co.	Approved
System Impact Study/ISA/CSA	PJM	Completed
Transmission line right of way	DPL	Not applicable
DNREC Coastal Zone Permit	DNREC	Approved
DNREC well permit	DNREC	Not applicable
Air Permit (Operating and Construction)	DNREC	Approved and Issued
Stormwater Review and Engineering Approval	New Castle County	Approved
Planning Dept. and Site Plan Approval	New Castle County	Approved
Record Plan	New Castle County	Approved
DDOT Entrance Permit	DDOT	Issued
Stormwater Discharge Notice of Intent	DNREC	Completed
Firemarshal Review	State of Delaware	Completed
Feasibility Study	PJM	Completed
Wetlands Review	New Castle County	Completed
NPDES NOT	DNREC	Will be filed once construction has finished
Notice of Self-Certification of Exempt Wholesale Generator Status, filed in Docket No. EG12-44-000.	FERC	Filed March 15, 2012.
DPL’s Service Classification “LVG-QFCP-RC” filed for gas service applicable to REPS Qualified Fuel Cell Provider Projects	Delaware Public Services Commission (DPSC)	Approved by the DPSC in Order No. 8062 dated October 18, 2011, as adopted and supplemented by DPSC’s Findings, Opinion and Order No. 8079, dated December 1, 2011
DPL’s Service Classification “QFCP-RC” for REPS Qualified Fuel Cell Provider Projects	DPSC	Approved by the DPSC in Order No. 8062 dated October 18, 2011, as adopted and supplemented by DPSC’s Findings, Opinion and Order No. 8079, dated December 1, 2011
Order from FERC granting Project Company MBR Authority	FERC	Issued

SCHEDULE 5.19 TO NOTE PURCHASE AGREEMENT

[***]

[***] Confidential Treatment Requested

SCHEDULE 9.2

REQUIRED INSURANCE

The Company shall, without cost to the Secured Parties, obtain and maintain or cause to be obtained and maintained in full force and effect the insurance policies as required in this Schedule.

In each case the policies must be with insurance carriers with a rating of at least A- and a financial size category of at least X by A.M. Best or A by S&P or otherwise reasonably acceptable to the Required Holders.

The policies specified in Appendix 1 of this Schedule shall be in full force and effect at all times on and after the Closing Date or at such later inception date as is permitted by Appendix 1 to this Schedule until Termination subject to renewal no more frequently than annually.

At no time shall there be any gap in cover.

The policy limits and cover of the insurances required in this schedule shall be sufficient to satisfy the requirements set forth in the Project Documents, but in no event less than the limits and coverage provisions set forth in Appendix 1 herein. The obligation to verify that the insurances carried by the Company meet the requirements of the Project Documents shall rest solely with the Company.

The Company shall not violate or permit to be violated any condition, provision or requirement of any insurance policy required by this Schedule, and the Company shall perform, satisfy and comply with all conditions, provisions and requirements of all insurance policies.

The Company hereby waives any and every claim for recovery against the Purchasers or their directors, officers and employees and agents for any and all loss or damage covered by any insurance policies to be maintained under this Schedule to the extent such loss or damage is recovered under any such policy.

All policies of insurance required to be maintained pursuant to this Schedule, other than cover required by law, shall be endorsed such that if at any time they are cancelled, lapsed, terminated or suspended (by any party including the insuring parties), such cancellation, lapse, termination or suspension shall not become effective until at least 30 days after receipt by the Collateral Agent from such insurer of such cancellation, lapse, termination or suspension, except for non-payment of premium for which the required written notice shall be 10 days. In addition to this requirement, the Company shall inform each of the Purchasers as soon a reasonably possible if it becomes aware of and such cancellation, lapse, termination or suspension or of any reasonable prospect of such and shall further requite its broker to do the same.

All policies of insurance required to be maintained pursuant to this Schedule except workers compensation and employers liability shall provide:

• Additional Insured status for the Collateral Agent and each of the Purchasers, the Tax Equity Investors, the Sponsor and in the case of liability policies only also their

SCHEDULE 9.2 TO NOTE PURCHASE AGREEMENT

respective affiliates, directors, officers, employees and agents (collectively, the “Additional Insureds”). This requirement shall not apply to any professional indemnity policy.

• Waivers of subrogation from the insurers in favor of the Additional Insureds.

• Policies shall either (a) be non-cancellable except for non-payment of premium with at least 10 days written notice of such to each of the Purchasers; or (b) have cancellation/non-payment provisions in accordance with the provisions of this Schedule.

• Each Purchaser or the Collateral Agent, on behalf of the Purchasers, will have the right but not the obligation to pay premiums on behalf of the Company in case of non-payment.

• Policies shall be unaffected by any bankruptcy or foreclosure relating to the Company or the Project.

• Insurance shall be primary and not excess to or contributing with any other insurance or self-insurance maintained by the Company or the Additional Insureds. However, policies can act in excess of underlying policies and any policies provided by contractors in accordance with the requirements of this Schedule.

• The Company shall ensure that no Insurer of a policy required in accordance with the terms of this Schedule shall permit the first named insured under such policy to reduce limits or cover or degrade terms and conditions without the prior written approval of the Required Holders.

• The Additional Insureds shall have no obligations whatsoever including but not limited to no obligation to pay premium and no obligation to pay deductibles.

• Policy limits shall act in excess of deductibles including the indemnity period for time element insurance which shall act in excess of the delay deductible for such insurance.

• Insurer costs and expenses including any associated with claims including claims adjustment are for the account of the relevant insurer and further will not be deducted from policy limits or sublimits.

In addition, all property policies including marine cargo (if applicable) and further including any time element insurance shall provide:

• That the Collateral Agent for the benefit of the holders of the Notes shall be sole loss payee of any amounts payable under the policies in relation to the Company and the Project.

• A non vitiation clause the form of a multiple insured clause or equivalent protection acceptable to the Required Holders acting reasonably.

• From the first policy renewal following the date of this agreement, cover for unintentional errors and omissions for a [***] sublimit.

• Replacement cost, new for old, with no deduction of any kind including no coinsurance provision or a waiver thereof and no allowance for depreciation (accounting or otherwise), obsolescence or loss of value over time other than in a total constructive loss or other scenario where repair/replacement does not follow loss.

• An advance or partial payment endorsement.

• A clause requiring the insurer to make final payment on any claim within thirty days after the submission of proof of loss and its acceptance by the insurer.

• Except for marine transit policies, a LEG2 exclusion or similar endorsement with no sublimit applied.

[***] Confidential Treatment Requested

SCHEDULE 9.2 TO NOTE PURCHASE AGREEMENT

In addition, all liability policies except workers compensation and employers liability shall provide:

• Severability.

• Cross liability with no insured or additional insured excluded.

The above requirements shall be referred to as the “Required Holder Provisions”. The Required Holder Provisions can be provided either as endorsements to or in the main body of the relevant policy. All policies that replace or renew policies shall contain provisions, including limits, sublimits, deductibles, exclusions and the Required Holder Provisions, that are, mutatis mutandis, in all material regards at least the same as those in place at the Closing Date or, if later, the date of first inception of such policy cover, except in relation to risks where exposure no longer exists or where a better level of cover is provided or which would be required in accordance with the provisions of this Schedule.

The Company shall provide each of the Purchasers as soon as reasonably possible prior to financial close, and at least 10 days prior to any subsequent policy inception or renewal, a certificate of pre-agreed format from:

• Each placing broker confirming:

• Summary policy terms in the pre-agreed format.

• That all policies required by this schedule are in full force and effect.

• All insurance premiums that are due and payable have been paid in full with no premium overdue.

There shall be appended to such certificate or letter of undertaking insurance certificates for each policy required by this Schedule listing the major sublimits (to be agreed) and confirming that all required endorsements that apply to such policy are in place.

• The Insurance Consultant confirming that:

• The insurance provided complies with the requirements of this Agreement including this Schedule and further complies with the requirements of the Company in the Project Documents.

• That the undertakings made by each placing broker conform to the requirements of prudent industry practice.

The insurance provided by the Company shall be at least that evidenced in any certificates or other evidence provided by or on behalf of the Company.

Any of the requirements of this Schedule can be satisfied by single or by combined policies. However, as would be deemed necessary in accordance with prudent industry practice, a joint loss agreement will be required and included as part of the respective policies (for example, if there were separate marine transit and builders all-risk policies, then a 50:50 clause would be required).

SCHEDULE 9.2 TO NOTE PURCHASE AGREEMENT

If in the opinion of the Company, acting reasonably, any insurance, including the terms and conditions, required endorsements and limits or deductibles thereof, hereby required by this Schedule to be maintained, other than insurance required to be maintained by law which shall be maintained at all times, shall not be available on commercially reasonable terms in the commercial insurance market, the Company shall promptly inform the Collateral Agent and each of the Purchasers of such purported unavailability and the Company shall seek a waiver from the Required Holders in relation to such purported unavailability in which case the Required Holders, acting after consultation with the Insurance Consultant, shall not unreasonably withhold agreement to waive such requirement to the extent the maintenance thereof is not so available. The granting by the Required Holders of any such waiver is conditional on: (i) the Company first requesting such waiver in writing, which request shall be accompanied by written reports prepared by the Company and its placing broker certifying that such insurance is not available on commercially reasonable terms in the commercial insurance market for projects of similar type and capacity and, in any case where the required amount is not so available, certifying as to the maximum amount which is so available, and explaining in detail the basis for such conclusions and the form and substance of such reports to be reasonably acceptable to the Required Holders after consultation with the Insurance Consultant; (ii) at any time after the granting of any such waiver, any Secured Party may request, and the Company shall furnish to each Secured Party within fifteen (15) days after such request, supplemental reports reasonably acceptable to the Required Holders updating the prior reports and reaffirming such conclusion; (iii) any such waiver granted by the Required Holders can amend, to the extent reasonably required to mitigate any increased risks created by the absence of insurance cover that is the subject of the waiver, any of the terms of this Schedule and this Agreement; (iv) any Purchaser may require the Company to obtain the best available insurance comparable to the requirements of this Schedule on commercially reasonable terms then available in the commercial insurance market (as determined by the Insurance Consultant); and (v) such waiver shall be effective only so long as such insurance shall not be available on commercially reasonable terms in the commercial insurance market (as determined by the Insurance Consultant) it being understood that the failure of the Company to furnish any supplemental reports shall be deemed to be conclusive evidence that such waiver is no longer effective because such condition no longer exists, but that such failure is not the only way to establish such non-existence.

Any failure on the part of any Secured Party to pursue or obtain the evidence of insurance required by this Schedule from the Company and/or failure to point out any non-compliance of such evidence of insurance shall not constitute a waiver of any of the insurance requirements in this Schedule.

Each liability insurance policy required pursuant to this Schedule that is permitted to be written on a “claims made” basis shall provide (a) a retroactive date (as such term is specified in each of such policies) that is no later than the Closing Date and (b) each time any policy written on a “claims made” basis is not renewed or the retroactive date of such policy is to be changed, the Company shall obtain and maintain, or cause to be obtained or maintained, for each such policy or policies the broadest extended reporting period coverage, or “tail”, reasonably available in the commercial insurance market for each such policy or policies but in no case less than three

SCHEDULE 9.2 TO NOTE PURCHASE AGREEMENT

(3) years. The Company may satisfy the requirements of this Section by obtaining “prior acts” coverage from a subsequent insurance carrier on terms acceptable to the Collateral Agent, acting reasonably.

All property insurance including marine cargo and any time element insurance shall not include any annual or term aggregate limits or sublimits except for the perils of windstorm, flood, earth movement, unintentional errors & omissions and land and water decontamination but only to the extent permitted in Appendix 1 to this Schedule. Liability policies may have general aggregate limits in accordance with prudent insurance market practice.

All insurance policies required to be maintained pursuant to this Schedule shall contain terms and conditions reasonably acceptable to the Required Holders following consultation with the Insurance Consultant.

In the event that at any time the insurance as herein provided or as evidenced shall be reduced or cease to be maintained, then (without limiting the rights of any Secured Party hereunder in respect of the Event of Default which arises as a result of such failure) any Secured Party, upon ten (10) Business Days’ prior written notice (unless such insurance coverage would lapse within such period, in which event notice should be given as soon as reasonably possible) to the Company of any such failure, may (but shall not be obligated to) take out the required policies of insurance and pay the premiums on the same. All amounts so advanced for such purpose shall become an additional obligation of the Company to the Secured Parties that provided such funding, and the Company shall forthwith pay such amounts, together with interest on such amounts at the applicable Default Rate from the date so advanced.

The Required Holders can, acting reasonably, require such additional cover to be provided as is required to conform to prudent industry practice.

The Required Holders shall have the option to be present and/or to send representatives during meetings and/or negotiations with insurers of any loss settlement in relation to the Company or the Project regarding (a) total constructive loss or any scenario in which repair/replacement will not follow loss, (b) any circumstance involving a claim in relation to an event or series of events which has or could be reasonably expected to lead to a Default. Neither the Company nor any of its Affiliates shall be permitted to settle any such claim with an insurer without the approval of the Required Holders to the agreed settlement.

Each Purchaser may, pursuant to its rights and obligations under this Agreement and this Schedule and the provisions therein, consult with the Insurance Consultant and require reports, compliance certificates and other work product from the Insurance Consultant.

Terms used in this Schedule, unless otherwise specifically defined, shall have the meaning normally ascribed to them in accordance with prudent industry practice in relation to a project similar in type and jurisdiction as the Project.

SCHEDULE 9.2 TO NOTE PURCHASE AGREEMENT

APPENDIX 1

(a) Construction Phase Property Policy

If the Purchasers or Tax Equity Investors are pre funding construction phase expenditures then as a condition precedent to such funding, evidence shall be provided that is reasonably acceptable to the Required Holders or Tax Equity Investors (as applicable) that adequate property insurance is in place sufficient to cover the value of (a) the largest transit shipment and offsite storage; and (b) aggregate assets on site at the Project and Delay in Start-Up exposure prior to the All Risk Property and Business Interruption Insurance being in full force and effect. Furthermore, the Collateral Agent and each of the Purchasers will be added as additional insured to the construction general liability policy which shall have limits and terms adequate to cover their exposure.

(b) All Risk Property and Business Interruption Insurance

From the earlier of (a) Completion; and (b) First Funding Event, “All Risk Property” insurance shall be provided for all property, equipment and construction and erection activities associated with the Project on an “all risk” basis insuring the Company and the Additional Insureds, as their interests may appear, including but not limited to coverage for the perils of earth movement (including but not limited to earthquake, landslide, subsidence, sink hole and volcanic eruption), flood, named windstorm. There shall be no requirement for machinery breakdown coverage subject to the agreement of the Required Holders and the Tax Equity Investors, acting reasonably, that such risks are adequately covered by Power Performance Warranty.

The policy limit shall be an amount not less than the aggregate full replacement cost of the projects such amount also being referred to as the “full policy limit”. Full insurable value shall mean the full replacement cost value of the Project on a “new for old” basis, including but not limited any new or existing buildings or structures, any improvements to new or existing property, equipment, mechanical plant, electrical plant, spare parts, and supplies and temporary works.

Per occurrence sublimits shall be at least as follows:

•       Unintentional Errors & Omissions	[***]
•       Debris removal	[***]
•       Architects and engineers fees	[***]
•       Expediting expense	[***]
•       Blueprints, drawings, etc.	[***]
•       On site pollution	[***]

An annual aggregate sublimit shall be permitted for flood of [***]. An annual aggregate sublimit shall be permitted for earth movement of [***] subject to confirmation from the

[***] Confidential Treatment Requested

SCHEDULE 9.2 TO NOTE PURCHASE AGREEMENT

independent engineer and accepted by the Required Holders and the Tax Equity Investors, acting reasonably, that any such damage is likely to be within this limit. Limits for windstorm shall be full policy limits on a per occurrence basis.

The All Risk Property policy shall include a seventy-two (72) hour flood/named windstorm/earthquake clause. There shall be no serial loss clause.

Business Interruption coverage insuring the loss of expected gross revenues for the largest single Project for a period of not less than the greater of (a) 12 months; and, (b) the longest lead time for replacement as determined by the Required Holders and the Tax Equity Investors in consultation with the Independent Engineer as a result of physical loss or damage by perils required to be insured under the All Risk Property policy, including all sections preceding this section, which cause a reduction in output.

Contingent business interruption insurance covering loss of gross revenues less non-continuing expenses for:

• Power Suppliers and Public Utilities Extension – loss, including delay, caused by interference/interruption of power/other utility including export substation – full cover.

• Prevention of Ingress/Egress 90 days

• Damage to an export substation cover for loss of expected gross revenues less non-recurrent costs for a six month indemnity period.

Some or all of the requirement for contingent business interruption can be reduced or eliminated subject to the agreement of the Required Holders and the Tax Equity Investors that such risks or proportions of such risks are adequately covered by the Tariff.

Deductibles shall be the best commercially available in accordance with prudent industry practice not exceeding 2% for earthquake.

(c) Marine Cargo and Marine Business Interruption Insurance

To the extent a material exposure exists, transit coverage, either included in a property policy or under a separate policy (including air, land and ocean cargo, as applicable) on an “all-risk” basis and a “warehouse to warehouse” basis with a per occurrence limit equal to not less than [***]% of the value including transit and insurance of such shipment involving Project or any other Collateral assets to or from any storage site or the Project site at all times for which the Company has accepted risk of loss or has responsibility for providing insurance. Coverage shall include loading and unloading, temporary storage (as applicable). Coverage shall be maintained in accordance with prudent industry practice in all regards with per occurrence deductibles of not more than [***] for physical damage and other terms and conditions acceptable to the Required Holders and the Tax Equity Investors in consultation with the Insurance Consultant.

Marine Business Interruption insurance shall be attached to the Marine Cargo policy providing equivalent cover, mutatis mutandis, to the Business Interruption cover attached to the All Risk Property policy in accordance with the terms of this Schedule.

[***] Confidential Treatment Requested

SCHEDULE 9.2 TO NOTE PURCHASE AGREEMENT

(d) General Liability

A limit of [***] per occurrence and in the aggregate shall be provided for:

• Property damage, death and injury (including mental injury).

• Broad form property damage.

• Blanket contractual.

• Products/completed operations

• Advertising injury

• XCU

Deductibles shall be the best commercially available in accordance with prudent industry practice.

(e) Automobile Liability

Automobile liability insurance, to the extent exposure exists, including coverage for owned, non-owned and hired automobiles for both bodily injury and property damage and containing appropriate no-fault insurance provisions or other endorsements in accordance with state legal requirements, with a combined single limit of no less than [***] per accident with respect to bodily injury, property damage or death. Deductibles shall be the best commercially available in accordance with prudent industry practice.

(f) Workers’ Compensation and Employer’s Liability

If the Company has employees, workers’ compensation insurance in compliance with statutory requirements and employer’s liability insurance, to the extent exposure exists, with a limit of not less than [***] per accident, per employee and per disease including such other forms of insurance that the Company is required by law to provide for the Project, all other states’ endorsement and, to the extent any exposure exists, coverage with respect to the USL&H Act and Jones Act, covering loss resulting from bodily injury, sickness, disability or death of the employees of the Company. Deductibles shall be the best commercially available in accordance with prudent industry practice.

(g) Pollution Liability

Pollution liability insurance for liability arising out of property damage or bodily injury to third parties as a result of sudden and accidental pollution including the cost of on-site and off-site clean up in an amount not less than [***] per occurrence and in the aggregate. Deductibles shall be the best commercially available in accordance with prudent industry practice.

(h) Umbrella Liability Insurance

An aggregate limit of [***] (or [***], if so required by any Project Document) shall be attached and in excess of the underlying general liability, automobile liability, employers’ liability policies on a following form basis with drop down provisions.

[***] Confidential Treatment Requested

SCHEDULE 9.2 TO NOTE PURCHASE AGREEMENT

(i) Errors and Omissions Liability

Errors and omissions insurance for liability arising out of property damage or bodily injury to third parties as a result of prototype manufacturing errors and omissions liability [***] per glitch and in the aggregate. Deductibles shall be the best commercially available in accordance with prudent industry practice.

(j) Directors & Officers Insurance

Directors & Officers insurance, including Employment Practices (if employees) in an amount not less than [***] on industry standard policy forms subject to a retention not to exceed [***]. This requirement may be satisfied by a corporate policy.

[***] Confidential Treatment Requested

SCHEDULE 9.2 TO NOTE PURCHASE AGREEMENT

[FORM OF NOTE]

THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”). NEITHER THIS NOTE NOR ANY PORTION HEREOF MAY BE OFFERED, SOLD OR OTHERWISE TRANSFERRED EXCEPT IN COMPLIANCE WITH THE REGISTRATION PROVISIONS OF THE SECURITIES ACT AND ANY APPLICABLE PROVISIONS OF ANY STATE BLUE SKY OR SECURITIES LAWS OR PURSUANT TO AN AVAILABLE EXEMPTION FROM SUCH REGISTRATION PROVISIONS.

THE HOLDER OF THIS NOTE, BY ACCEPTANCE OF THIS NOTE, AND EACH HOLDER OF A BENEFICIAL INTEREST THEREIN, AGREE TO TREAT THE NOTE AS INDEBTEDNESS OF THE COMPANY FOR APPLICABLE FEDERAL, STATE, AND LOCAL INCOME AND FRANCHISE TAX LAW AND FOR PURPOSES OF ANY OTHER TAX IMPOSED ON, OR MEASURED BY, INCOME.

EXHIBIT 1

(to Note Purchase Agreement)

DIAMOND STATE GENERATION PARTNERS, LLC

5.22% SENIOR SECURED NOTE DUE MARCH 30, 2025

No. [        ]	[Date]
$[        ]	PPN 25275@AA1

FOR VALUE RECEIVED, the undersigned, DIAMOND STATE GENERATION PARTNERS, LLC (herein called the “Company”), a limited liability company formed and existing under the laws of the State of Delaware, hereby promises to pay to [            ], or registered assigns, the principal sum of [                    ] DOLLARS (or so much thereof as shall not have been prepaid) on [            ,         ] (the “Maturity Date”), with interest (computed on the basis of a 360-day year of twelve 30-day months) (a) on the unpaid balance hereof at the rate of 5.22% per annum from the date hereof, payable quarterly, on the 30^th day of March, June, September and December in each year, commencing with the [            ] next succeeding the date hereof, and on the Maturity Date, until the principal hereof shall have become due and payable, and (b) to the extent permitted by law, on any overdue payment of interest and, during the continuance of an Event of Default, on such unpaid balance and on any overdue payment of any Make-Whole Amount, at the Default Rate, payable quarterly as aforesaid (or, at the option of the registered holder hereof, on demand).

Payments of principal of, interest on and any Make-Whole Amount with respect to this Note are to be made in lawful money of the United States of America at the principal office of the Collateral Agent in New York, New York or at such other place as the Company shall have designated by written notice to the holder of this Note as provided in the Note Purchase Agreement referred to below.

This Note is one of a series of Senior Secured Notes (herein called the “Notes”) issued pursuant to the Note Purchase Agreement, dated as of March 20, 2013 (as from time to time amended, the “Note Purchase Agreement”), between the Company and the respective Purchasers named therein and is entitled to the benefits thereof. Each holder of this Note will be deemed, by its acceptance hereof, to have (i) agreed to the confidentiality provisions set forth in Article 20 of the Note Purchase Agreement and (ii) made the representations set forth in Article 6 of the Note Purchase Agreement. Unless otherwise indicated, capitalized terms used in this Note shall have the respective meanings ascribed to such terms in the Note Purchase Agreement.

This Note is registered in the register of Notes maintained by the Company and, as provided in the Note Purchase Agreement, upon surrender of this Note for registration of transfer accompanied by a written instrument of transfer duly executed, by the registered holder hereof or such holder’s attorney duly authorized in writing, a new Note for a like principal amount will be issued to, and registered in the name of, the transferee. Prior to due presentment for registration of transfer, the Company may treat the person in whose name this Note is registered as the owner hereof for the purpose of receiving payment and for all other purposes, and the Company will not be affected by any notice to the contrary.

EXHIBIT 1

(to Note Purchase Agreement)

The Company will make required prepayments of principal on the dates and in the amounts specified in the Note Purchase Agreement. This Note is also subject to optional prepayment, in whole or from time to time in part, at the times and on the terms specified in the Note Purchase Agreement, but not otherwise.

If an Event of Default occurs and is continuing, the principal of this Note may be declared or otherwise become due and payable in the manner, at the price (including any applicable Make-Whole Amount) and with the effect provided in the Note Purchase Agreement.

This Note shall be construed and enforced in accordance with, and the rights of the Company and the holder of this Note shall be governed by, the law of the State of New York excluding choice-of-law principles of the law of such State that would permit the application of the laws of a jurisdiction other than such State.

DIAMOND STATE GENERATION PARTNERS, LLC
By
	[Title]

EXHIBIT 1

(to Note Purchase Agreement)

EXHIBIT 4.1.13(a)

FORM OF OPINION OF COUNSEL TO THE COMPANY

[See Execution Version]

EXHIBIT 4.1.13(a) TO NOTE PURCHASE AGREEMENT

Exhibit 4.1.13(b)

FORM OF OPINION OF SPECIAL REGULATORY COUNSEL

TO THE COMPANY

[See Execution Version]

EXHIBIT 4.1.13(b) TO NOTE PURCHASE AGREEMENT

Exhibit 4.1.13(c)

FORM OF OPINION OF SPECIAL CONSTITUTIONAL COUNSEL

TO THE COMPANY

[See Execution Version]

EXHIBIT 4.1.13(c) TO NOTE PURCHASE AGREEMENT

EXHIBIT 4.1.13(d)

FORM OF OPINION OF SPECIAL DELAWARE COUNSEL

TO THE COMPANY

[See Execution Version]

EXHIBIT 4.1.13(d) TO NOTE PURCHASE AGREEMENT

Exhibit 4.1.13(e)

FORM OF OPINION OF SPECIAL COUNSEL

TO THE PURCHASERS

[See Execution Version]

EXHIBIT 4.1.13(e) TO NOTE PURCHASE AGREEMENT

EXHIBIT 4.1.14

FORM OF INSURANCE CONSULTANT CERTIFICATE

Date: March 20, 2013

[Purchasers]

Re: Diamond State Generation Partners, LLC – Insurance Consultant’s Certificate

Ladies and Gentlemen:

The undersigned, a duly authorized representative of Moore-McNeil, LLC, a Tennessee limited liability company (the “Insurance Consultant”), hereby delivers this Insurance Consultant’s Certificate to you in accordance with Section 4.1.14 of that certain Note Purchase Agreement, dated as of March 20, 2013 (as amended, supplemented or otherwise modified from time to time, the “Note Purchase Agreement”), among Diamond State Generation Partners, LLC, a Delaware limited liability company (the “Company”) and the Purchasers party thereto. Capitalized terms used herein and not otherwise defined have the meanings provided in the Note Purchase Agreement.

The Insurance Consultant hereby makes the following statements in favor of the Secured Parties with respect to the Company and the Project as of the date hereof:

1. The Insurance Consultant acknowledges that pursuant to the Note Purchase Agreement, the Company is issuing Notes in connection with, among other things, the construction, operation and development of the Project and the Holders are relying on this Insurance Consultant’s Certificate and the Insurance Consultant’s report dated March 19, 2013 (the “Insurance Consultant’s Report”), with respect to the Project.

2. Attached hereto as Annex I is an accurate and complete copy of the Insurance Consultant’s Report.

3. The Insurance Consultant’s Report was prepared in good faith by the Insurance Consultant pursuant to the scope of services in accordance with generally accepted consulting practices.

4. Nothing has come to the attention of the Insurance Consultant that causes the Insurance Consultant to believe that the Insurance Consultant’s Report, as of the date hereof, contains any untrue statement of material fact or omits to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading.

5. The Insurance Consultant hereby confirms, as of the date hereof, that the evaluation, conclusions and recommendations contained in the Insurance Consultant’s Report are accurate and complete in all material respects.

EXHIBIT 4.1.14 TO NOTE PURCHASE AGREEMENT

6. In connection with the preparation of the Insurance Consultant’s Report, personnel of the Insurance Consultant have participated in meetings or telephonic discussions with representatives of the Company and its Affiliates, the Company’s insurance broker, Collateral Agent, the Purchasers, counsel to the Company, counsel to Collateral Agent, and counsel to the Purchasers in respect of the Project.

7. Upon delivery of the certificate from the Company’s insurance broker and the original certificates of insurance, copies of which are attached hereto as Annex II, the Company will have provided satisfactory evidence of compliance with the terms and conditions of Sections 4.1.14, 4.1.15, 5.21 and 9.2 and Schedule 9.2 of the Note Purchase Agreement.

The undersigned, on behalf of the Insurance Consultant, hereby confirms that the Secured Parties shall be permitted to rely on the Insurance Consultant’s Report as if the Insurance Consultant’s Report was specifically addressed to each of them.

[Signature page follows]

EXHIBIT 4.1.14 TO NOTE PURCHASE AGREEMENT

IN WITNESS WHEREOF, the Insurance Consultant has caused this Insurance Consultant’s Certificate to be duly executed and delivered by an authorized officer of the Insurance Consultant as of the date first above written.

MOORE-MCNEIL, LLC,

a Tennessee limited liability company

By:

Name:

Title:

EXHIBIT 4.1.14 TO NOTE PURCHASE AGREEMENT

Annex I

to Insurance Consultant’s Certificate

Insurance Consultant’s Report

[See attached]

EXHIBIT 4.1.14 TO NOTE PURCHASE AGREEMENT

EXHIBIT 4.1.16

FORM OF INDEPENDENT ENGINEER CERTIFICATE

[LETTERHEAD OF INDEPENDENT ENGINEER]

To: the Purchasers identified on Exhibit A (the “Purchasers”)

Subject:	Independent Engineer’s Report
	Diamond State Generation Partners, LLC Project

Ladies and Gentlemen:

This letter is provided in accordance with Section 4.1.16 of that certain Note Purchase Agreement, dated as of March 20, 2013 (as amended, supplemented or otherwise modified from time to time, the “Note Purchase Agreement”), between Diamond State Generation Partners, LLC, a Delaware limited liability company (the “Company”) and the Purchasers party thereto (the “Purchasers”).

SAIC Energy, Environment & Infrastructure, LLC (“SAIC”) has been retained by Bloom Energy Corporation (“Bloom”) and the Purchasers to act as the Independent Engineer under the Note Purchase Agreement and has prepared an Independent Engineer’s Report dated March [    ], 2013 (the “Report”), a copy of which is attached hereto.

The Report was prepared pursuant to the scope of services under our Amended and Restated Professional Services Agreement, dated as of March 15, 2013 (the “Services Agreement”) with Bloom, the Collateral Agent and the Purchasers and those services were provided in accordance with generally accepted engineering practices.

In connection with the preparation of the Report, personnel of SAIC have participated in meetings or telephone discussions with representatives of the Company and its affiliates, the Purchasers, counsel to the Company, and counsel to the Purchasers in respect of the Project (as defined in the Report).

This letter and attached Report are solely for the information of, and assistance to, the Purchasers in conducting and documenting their investigation of the matters covered by the Report in connection with the Project, and it is not to be used, circulated, quoted, or otherwise referred to outside of the lending group for any purpose, nor is it to be referred to in whole or in part in any other document, except that reference may be made to it in the above-mentioned Note Purchase Agreement and in any list of closing documents pertaining to the Project.

SAIC disclaims any obligation to update this letter and the attached Report. This letter and the attached Report are not intended to, and may not, be construed to benefit any party other than the Purchasers.

EXHIBIT 4.1.16 TO NOTE PURCHASE AGREEMENT

Very truly yours,

SAIC ENERGY, ENVIRONMENT & INFRASTRUCTURE, LLC

Signature

Title

EXHIBIT 4.1.16 TO NOTE PURCHASE AGREEMENT

EXHIBIT A

PURCHASERS

AXA Equitable Life Insurance Company

C. M. Life Insurance Company

Genworth Life and Annuity Insurance Company

Genworth Life Insurance Company of New York

Massachusetts Mutual Life Insurance Company

MassMutual Asia Limited

Modern Woodmen of America

Teachers Insurance and Annuity Association of America

EXHIBIT 4.1.16 TO NOTE PURCHASE AGREEMENT

EXHIBIT B

REPORT

EXHIBIT 4.1.16 TO NOTE PURCHASE AGREEMENT

EXHIBIT 4.1.17

FORM OF ENVIRONMENTAL RELIANCE LETTERS

March 20, 2013

[Addressees (“Relying Parties”)]

RE: Grant of Reliance on Proposed Fuel Cell Facility (Red Lion Site), 1593 River Road, New Castle, New Castle County, Delaware Phase I ESA Report dated March 13, 2013, Terracon Project # J2137112 (“Reports”)

To whom it may concern:

Terracon hereby agrees to grant Relying Parties reliance on the above referenced “Reports” to the full extent and as if the final reports were contracted for and directed or addressed to Relying Parties, subject to the conditions below.

As of the date hereof, based upon the services performed and to the extent of our knowledge, information and belief, we are not aware of a release of a hazardous substance at the sites that requires remediation under current Hazardous Substances Law (as defined in that certain Note Purchase Agreement among Diamond State Generation Partners, LLC and the Purchasers (as defined therein) dated as of March 20, 2013).

The Reports reflect the opinions of Terracon as of the date of the Reports and the Relying Parties should be aware that conditions may have changed materially from that date. Terracon has no obligation to provide any information obtained or discovered by Terracon subsequent to the date of the Reports, or to perform any additional services, regardless of whether the information would affect any conclusions, recommendations, or opinions in the Reports. Further, Relying Parties recognize that if they have requested reliance on a Phase I report more than 180 days from the date of its issuance, or if Relying Parties have not provided a completed User Questionnaire form, Relying Parties acknowledge the grant of reliance does not satisfy ASTM requirements and may not satisfy the requirements set forth in 40 CFR Part 312 for “all appropriate inquiry” or other requirements necessary for CERCLA protection.

Relying Parties’ reliance upon the Reports is subject to all of the terms, limitations, restrictions, and caveats referenced in the Reports and related agreements. Terracon only performed those tasks as set out in the Reports. Any opinions or recommendations contained in the Reports are based solely on the Tasks agreed upon in the Agreements and/or presented in the Reports. Unless Terracon agrees in writing, no person or entity other than Relying Parties and Terracon’s client may rely upon the Reports.

EXHIBIT 4.1.17 TO NOTE PURCHASE AGREEMENT

March 20, 2013

[Addressees (“Relying Parties”)]

RE: Grant of Reliance on Proposed Fuel Cell Facility (Brookside Site), 512 East Chestnut Hill Road, Newark, New Castle County, Delaware Phase I ESA Report dated March 13, 2013, Terracon Project # J2137112 (“Reports”)

To whom it may concern:

Terracon hereby agrees to grant Relying Parties reliance on the above referenced “Reports” to the full extent and as if the final reports were contracted for and directed or addressed to Relying Parties, subject to the conditions below.

As of the date hereof, based upon the services performed and to the extent of our knowledge, information and belief, we are not aware of a release of a hazardous substance at the sites that requires remediation under current Hazardous Substances Law (as defined in that certain Note Purchase Agreement among Diamond State Generation Partners, LLC and the Purchasers (as defined therein) dated as of March 20, 2013).

The Reports reflect the opinions of Terracon as of the date of the Reports and the Relying Parties should be aware that conditions may have changed materially from that date. Terracon has no obligation to provide any information obtained or discovered by Terracon subsequent to the date of the Reports, or to perform any additional services, regardless of whether the information would affect any conclusions, recommendations, or opinions in the Reports. Further, Relying Parties recognize that if they have requested reliance on a Phase I report more than 180 days from the date of its issuance, or if Relying Parties have not provided a completed User Questionnaire form, Relying Parties acknowledge the grant of reliance does not satisfy ASTM requirements and may not satisfy the requirements set forth in 40 CFR Part 312 for “all appropriate inquiry” or other requirements necessary for CERCLA protection.

Relying Parties’ reliance upon the Reports is subject to all of the terms, limitations, restrictions, and caveats referenced in the Reports and related agreements. Terracon only performed those tasks as set out in the Reports. Any opinions or recommendations contained in the Reports are based solely on the Tasks agreed upon in the Agreements and/or presented in the Reports. Unless Terracon agrees in writing, no person or entity other than Relying Parties and Terracon’s client may rely upon the Reports.

EXHIBIT 4.1.17 TO NOTE PURCHASE AGREEMENT

EXHIBIT 4.1.30

FORM OF DIRECT AGREEMENT

This DIRECT AGREEMENT (as amended, modified or supplemented from time to time, this “Consent”), dated as of             , 2013, is executed by                     , a                      (“Contracting Party”), DIAMOND STATE GENERATION PARTNERS, LLC, a Delaware limited liability company (“Assignor”), and DEUTSCHE BANK TRUST COMPANY AMERICAS, as Collateral Agent (in its capacity as collateral agent for the Secured Parties, as defined below, “Collateral Agent”).

A. Assignor intends to develop, construct, install, finance, own, operate and maintain a portfolio of fuel cell electricity generators with an aggregate capacity of 30 MW, to be located on one or more sites in New Castle County, Delaware (the “Project”);

B. In order to finance the development, construction, installation, testing, leasing, operation and use of the Project and the acquisition of certain other assets related thereto, Assignor has entered into that certain Note Purchase Agreement, dated as of March 20, 2013 (as amended, amended and restated, supplemented or otherwise modified from time to time, the “Note Purchase Agreement”), among Assignor and the Purchasers party thereto (collectively with Collateral Agent, “Secured Parties”), pursuant to which, among other things, the Assignor will issue Notes (as defined in the Note Purchase Agreement) to the Purchasers;

C. Assignor has entered into that certain                     , dated as of             , 2013 (as amended, amended and restated, supplemented or otherwise modified from time to time in accordance with the terms thereof and hereof, the “Agreement”) with Contracting Party;

D. As collateral security for all obligations of Assignor to the Secured Parties under the Note Purchase Agreement and related documents, Assignor has granted to Collateral Agent a first-priority security interest in all of its right, title and interest in, to and under the Agreement (the “Assigned Interest”) pursuant to that certain Security Agreement, dated as of even date herewith (as amended, modified or supplemented from time to time, the “Security Agreement”), made by Assignor in favor of Collateral Agent for the benefit of the Secured Parties; and

E. It is a requirement under the Note Purchase Agreement that Contracting Party and the other parties hereto shall have executed this Consent.

EXHIBIT 4.1.30 TO NOTE PURCHASE AGREEMENT

NOW THEREFORE, in consideration of the foregoing and the mutual agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree, notwithstanding anything in the Agreement to the contrary, as follows:

1. Consent and Agreement. Contracting Party:

a. consents to the assignment of the Assigned Interest as collateral security to Collateral Agent;

b. acknowledges the right (but not the obligation) of Collateral Agent in the exercise of its rights and remedies under the Security Agreement to make all demands, give all notices, take all actions and exercise all rights of Assignor under the Agreement, and agrees to accept any such exercise; provided, however, that, insofar as Collateral Agent exercises any of its rights under the Agreement or makes any claims with respect to payments or other obligations under the Agreement, the terms and conditions of the Agreement applicable to such exercise of rights or claims shall apply to Collateral Agent to the same extent as to Assignor;

c. agrees not to (i) cancel or terminate the Agreement or suspend performance of its services thereunder, except as provided in the Agreement or by operation of law and, in any event, except as in accordance with Section 4 of this Consent; (ii) consent to or accept any cancellation or termination of the Agreement by Assignor without the prior written consent of the Collateral Agent, except as provided in the Agreement and in accordance with Section 4 of this Consent; or (iii) sell, assign or otherwise dispose (by operation of law or otherwise) of any part of its right, title or interest in the Agreement, in each case without the prior written consent of Collateral Agent;

d. agrees not to amend, supplement or modify the Agreement in any material respect without the prior written consent of Collateral Agent (such consent not to be unreasonably withheld or delayed); and

e. agrees to promptly deliver to Collateral Agent copies of all notices of default, suspension or termination delivered by Contracting Party under the Agreement.

2. Assignor’s Acknowledgement. Assignor acknowledges and agrees that Contracting Party is permitted to perform its obligations under the Agreement upon Collateral Agent’s exercise of Assignor’s rights in accordance with this Consent, and that Contracting Party shall bear no liability to Assignor solely as a result of performing its obligations under the Agreement upon such exercise by Collateral Agent.

3. Transferees. Contracting Party agrees that if Collateral Agent shall notify Contracting Party in writing that as a result of foreclosure (whether judicial or non-judicial), deed-in-lieu-of-foreclosure or other sale or transfer of the Assigned Interest, Collateral Agent or any other applicable purchaser, successor, assignee or designee (in each case, a “Transferee”) is to succeed to Assignor’s rights in the Assigned Interest, then the Transferee shall be substituted for Assignor under the Agreement and Contracting Party shall (a) recognize the Transferee as its counterparty under the Agreement and (b) continue to perform its obligations under the Agreement in favor of the Transferee; provided, however, that such Transferee has assumed in writing all of Assignor’s obligations under the Agreement, other than any obligations which by their nature are incapable of being cured. If Collateral Agent or an entity controlled by

EXHIBIT 4.1.30 TO NOTE PURCHASE AGREEMENT

Collateral Agent or one or more of the Secured Parties is the initial Transferee, such initial Transferee shall have the right to assign all of its interest in the Agreement to any subsequent Transferee, provided such subsequent Transferee has assumed in writing all of the initial Transferee’s obligations under the Agreement. Upon such assignment, the initial Transferee shall be released from any further liability under the Agreement.

4. Right to Cure. In the event of a default or breach by Assignor in the performance of any of its obligations under the Agreement, or upon the occurrence or non-occurrence of any event or condition under the Agreement which would immediately or with the passage of any applicable grace period or the giving of notice, or both, enable Contracting Party to terminate the Agreement or suspend its performance thereunder (a “Default”), Contracting Party shall not terminate the Agreement or suspend its performance thereunder until it first gives written notice of the Default to Collateral Agent and affords Collateral Agent (a) a period of 45 days from receipt of such notice to cure such Default if such Default is the failure to pay amounts to Contracting Party which are due and payable under the Agreement or (b) with respect to any other Default, a reasonable opportunity, but no more than 90 days from receipt of such notice, to cure such Default (provided that during such cure period Collateral Agent or Assignor continues to diligently attempt to cure such Default). If (i) possession of the Project is necessary to cure any Default, and Collateral Agent commences foreclosure or any other proceedings necessary to take possession of the Project, or (ii) Collateral Agent is prohibited by any court order or bankruptcy or insolvency proceedings from curing the Default or from commencing or prosecuting such proceedings, and provided all monetary obligations on Assignor’s part under the Agreement have been performed, then in either case the cure period in clause (b) of the previous sentence shall be extended for a reasonable period to allow Collateral Agent to complete such proceedings and Collateral Agent or the applicable Transferee to effect the cure.

5. Replacement Agreement. In the event that the Agreement is rejected or terminated as a result of any bankruptcy or insolvency proceeding, Contracting Party shall, at the option of Collateral Agent exercised within 45 days after such rejection or termination, enter into a new agreement with Collateral Agent or a designated entity controlled by Collateral Agent or one or more of the Secured Parties, having identical terms as the Agreement (subject to any conforming changes necessitated by the substitution of parties and other changes as the parties may mutually agree, the “Replacement Agreement”). Collateral Agent (or such designee, as the case may be) shall have the right to assign all of its interest in the Replacement Agreement to any person, provided such assignee has assumed in writing all of Collateral Agent’s or such designee’s obligations under the Agreement. Upon an assignment as discussed in the immediately preceding sentence, Collateral Agent or such designee shall be released from any further liability under the Agreement.

6. Refinancing. In the event that the Note Purchase Agreement is amended and restated, refinanced or replaced by other credit facilities (including without limitation a note offering, debt securities, bank facility or other type of financing, whether incurred by the Assignor or an affiliate thereof), this Consent shall continue in full force and effect for the benefit of the Assignor and the provider of such new credit facilities or their collateral agent(s) (the “New Collateral Agent”), provided that (i) within ten days following delivery by the Collateral Agent to Contracting Party of the notice that the Assignor’s obligations under the Note Purchase Agreement have been satisfied in full, the New Collateral Agent shall have notified the

EXHIBIT 4.1.30 TO NOTE PURCHASE AGREEMENT

Contracting Party that it assumes the rights and the prospective obligations of the Collateral Agent under this Consent, and shall have supplied substitute notice address information and (ii) thereafter, (A) the term “Collateral Agent” and “Secured Parties” shall be deemed to refer to the New Collateral Agent, or the lenders and other secured parties under such new credit facilities, as appropriate, (B) the term “Note Purchase Agreement” shall be deemed to refer to the credit agreement, indenture or other instrument providing for the new credit facilities, and (C) the term “Security Agreement” shall be deemed to refer to the security agreement under which the Assigned Interest is assigned as collateral to secure performance of the obligations of the Assignor or an affiliate thereof under the new credit facilities. In connection with any transaction described in this Section 6, upon the request of the Assignor, the Contracting Party shall execute and deliver to the agent or other representative of the New Collateral Agent a reasonable estoppel certificate confirming, if it can do so accurately, among other things, that as of the date of such certificate each of the Contracting Party and, to the best knowledge of the Contracting Party, the Assignor is in compliance with all of their respective material obligations under the Agreement.

7. No Liability. Contracting Party acknowledges and agrees that Collateral Agent (a) shall not have any liability or obligation under the Agreement until, if ever, Collateral Agent expressly assumes such obligations in writing and (b) has no obligation to cure any Default. Notwithstanding anything to the contrary herein, the sole recourse of Contracting Party in seeking the enforcement of any obligations under this Consent, the Agreement or a Replacement Agreement shall be to any Transferee’s right, title and interest in the Project.

8. Payment of Monies. Commencing on the date of this Consent and so long as the Note Purchase Agreement remains in effect, Contracting Party hereby agrees to make all payments required to be made by it under the Agreement in U.S. dollars and in immediately available funds, directly to Collateral Agent for deposit into the account to be established and notified to Contracting Party by Collateral Agent from time to time, to such other Person and/or at such other address or account as the Collateral Agent may from time to time specify in writing to Contracting Party. Assignor hereby instructs Contracting Party, and Contracting Party accepts such instructions, to make all payments due and payable to Assignor under the Agreement as set forth in the immediately preceding sentence.

9. Representations and Warranties. Contracting Party hereby represents and warrants to Assignor and Collateral Agent as of the date of this Consent as follows:

a. Contracting Party is duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation/incorporation and has all requisite power and authority to execute, deliver and perform its obligations under the Agreement and this Consent.

b. The execution, delivery and performance by Contracting Party of the Agreement and this Consent have been duly authorized by all necessary action, and do not and will not require any further consents or approvals which have not been obtained, or violate any provision of any law, regulation, order, judgment, injunction or similar matters or breach any agreement presently in effect with respect to or binding on Contracting Party.

EXHIBIT 4.1.30 TO NOTE PURCHASE AGREEMENT

c. This Consent and the Agreement are legal, valid and binding obligations of Contracting Party, enforceable against Contracting Party in accordance with their respective terms except as enforceability may be limited by bankruptcy, reorganization, insolvency, moratorium and other laws affecting creditors’ rights in general and except to the extent that the availability of equitable remedies is subject to the discretion of the court before which any proceeding therefor may be brought.

d. The Agreement is in full force and effect and any amendment, supplement or modification thereto since the date of execution of the Agreement is reflected in the definition of “Agreement” set forth above.

e. To the best of Contracting Party’s knowledge, Assignor has fulfilled all of its obligations under the Agreement required as of the date hereof, and there are no breaches, Defaults or unsatisfied conditions presently existing (or which would exist after the passage of time and/or giving of notice) that would allow Contracting Party to terminate the Agreement or suspend its performance thereunder.

f. There is no litigation, action, suit, proceeding or investigation pending or (to the best of Contracting Party’s knowledge) threatened against Contracting Party before or by any court, administrative agency, arbitrator or governmental authority, body or agency which, if adversely determined, individually or in the aggregate, could adversely affect the performance by Contracting Party of its obligations hereunder or under the Agreement.

g. [The Agreement and this Consent are the only agreements between Assignor and Contracting Party with respect to the Project, and all of the conditions precedent to effectiveness under the Agreement have been satisfied or waived.] [Provision to be removed for Direct Agreements with Bloom Energy]

h. No excusable delay, force majeure, or the like, has occurred under the Agreement.

10. Additional Provisions. [To insert specific provisions as may be relevant to the Agreement. Such provisions, if any, to be identified after due diligence and review of the Agreement is complete.]

11. Notices. Any communications between the parties hereto or notices provided herein to be given, may be given to the following addresses:

If to Contracting Party:	NAME
	ADDRESS
	Attention:
	Telephone:
	Fax:
	Email:

EXHIBIT 4.1.30 TO NOTE PURCHASE AGREEMENT

If to Collateral Agent:	Deutsche Bank Trust Company Americas
	60 Wall Street, MS NYC60-2715
	New York, New York 10005-2858
	Attn: Trust and Agency Services
	Email: [●]
If to Assignor:	Diamond State Generation Partners, LLC
	1252 Orleans Drive
	Sunnyvale, CA 94089
	Attn: [***]
	Email: [***]

All notices hereunder shall be in writing and shall be considered as properly given (a) if delivered in person, (b) if sent by overnight delivery service, (c) if mailed by first class mail, postage prepaid, registered or certified with return receipt requested or (d) if sent by email; provided, that the foregoing clause (d) shall not apply to notices if the party to receive the notice has notified the other parties that it is incapable of receiving notices by email or if no email address is given above or later provided as an approved method of receiving notice. Notice so given shall be effective upon receipt by the addressee, except that communication or notice so transmitted by email shall be deemed to have been validly and effectively given upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return email or other written acknowledgement); provided, however, that if any notice is tendered to an addressee and the delivery thereof is refused by such addressee, such notice shall be effective upon such tender. Any party shall have the right to change its address for notice hereunder by giving of written notice to the other parties in the manner set forth herein above.

12. Binding Effect; Amendments; Confirmation. This Consent shall be binding upon and benefit the Contracting Party, Assignor and Collateral Agent and their respective successors, transferees and permitted assigns (including without limitation, any entity that refinances all or any portion of Assignor’s obligations under the Note Purchase Agreement). No termination, amendment, variation or waiver of any provisions of this Consent shall be effective unless in writing and signed by Contracting Party, Collateral Agent and Assignor.

13. Governing Law. This Consent shall be governed by the laws of the State of New York without reference to conflicts of laws rules thereof (other than Section 5-1401 of the New York General Obligations Law). CONTRACTING PARTY, ASSIGNOR, AND COLLATERAL AGENT HEREBY SUBMIT TO THE NONEXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK AND OF ANY NEW YORK STATE COURT SITTING IN NEW YORK CITY FOR THE PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO THIS CONSENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH OF CONTRACTING PARTY, ASSIGNOR AND COLLATERAL AGENT IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT AND ANY CLAIM THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.

[***] Confidential Treatment Requested

EXHIBIT 4.1.30 TO NOTE PURCHASE AGREEMENT

EACH OF CONTRACTING PARTY, ASSIGNOR AND COLLATERAL AGENT HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS CONSENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

14. Counterparts. This Consent may be executed in one or more duplicate counterparts, and when executed and delivered by all the parties listed below, shall constitute a single binding agreement.

[Signature pages follow]

EXHIBIT 4.1.30 TO NOTE PURCHASE AGREEMENT

IN WITNESS WHEREOF, the undersigned, by its officer thereunto duly authorized, has duly executed this Consent as of the date first above written.

[CONTRACTING PARTY]
By:
	Name:
	Title:

EXHIBIT 4.1.30 TO NOTE PURCHASE AGREEMENT

Accepted and agreed:
DIAMOND STATE GENERATION PARTNERS, LLC, a Delaware limited liability company as Grantor
By:
Name:
Title:
Accepted and agreed:
DEUTSCHE BANK TRUST COMPANY AMERICAS, as Collateral Agent
By:
	Name:
	Title:

EXHIBIT 4.1.30 TO NOTE PURCHASE AGREEMENT

EXHIBIT 4.2.1(a)

FORM OF DRAWDOWN CERTIFICATE

[LETTERHEAD OF COMPANY]

Date:                  ,         ¹

Drawdown Date:                  ,         

[                    ]

SAIC Energy, Environment & Infrastructure, LLC,

as Independent Engineer

Meditech Corporate Center, West Wing

550 Cochituate Road

Framingham, MA 01701

Re: Diamond State Generation Partners, LLC – Drawdown Certificate

Ladies and Gentlemen:

This Drawdown Certificate is delivered to you pursuant to Section 4.2.1(a) of the Note Purchase Agreement, dated as of March 20, 2013 (as amended, supplemented or otherwise modified from time to time, the “Note Purchase Agreement”), among Diamond State Generation Partners, LLC, a Delaware limited liability company (the “Company”), and the Purchasers party thereto. Capitalized terms used herein and not otherwise defined have the meanings provided in the Note Purchase Agreement.

I, [                    ], am a Responsible Officer of the Company. I have reviewed the provisions of the Credit Documents which are relevant to the furnishing of this Drawdown Certificate. To the extent that this Drawdown Certificate evidences, attests or confirms compliance with any covenants, representations, warranties or conditions precedent provided for in the Credit Documents, I have made such examination or investigation as was, in my opinion, reasonably necessary to enable me to express an informed opinion as to whether such covenants, representations, warranties or conditions have been complied with. This Drawdown Certificate relates to a Credit Event to take place on the date specified above as the “Drawdown Date” (the “Drawdown Date”).

I, on behalf of the Company, solely in my capacity as a Responsible Officer of the Company and not in my personal capacity, and without personal liability therefor, do hereby

¹  Certificate must be submitted to each of the Holders and Independent Engineer at least 7 Business Days prior to the date of each Drawdown.

EXHIBIT 4.2.1(a) TO NOTE PURCHASE AGREEMENT

certify to the Secured Parties that the following statements are accurate, true and complete on the date hereof (except for those statements that solely relate to a later date), and will be accurate, true and complete on and as of the Drawdown Date:

1) The aggregate Project Costs incurred, but not yet paid, through the date of the requested Credit Event are anticipated to be $        .

2) The Project Costs to be paid with the funds requested in connection with this Drawdown Certificate are to be paid with proceeds of the Notes deposited in the Construction Escrow Account in the amounts shown on Appendix I hereto.

3) The currently estimated aggregate Project Costs necessary to achieve Final Completion are as described and segregated in Appendix I hereto. Such amount is consistent with the current Project Budget (as amended, allocated, re-allocated or modified from time to time in accordance with Section 9.14 of the Note Purchase Agreement) or has otherwise been approved or permitted pursuant to the Note Purchase Agreement.

4) The variances in estimated Project Costs (from the Closing Date to the proposed Drawdown Date) are summarized in Appendix I hereto and such variances are described in the current or past construction progress reports delivered pursuant to Section 7.2(a) of the Note Purchase Agreement.

5) Attached in Appendix II hereto are the previously paid or due and payable invoices, purchase orders or other documents evidencing the Project Costs that are to be reimbursed or paid with the funds requested in connection with this Drawdown Certificate.

6) After taking into consideration the making of the Credit Event hereby requested, Available Funds are not less than the aggregate unpaid amount required: (a) to cause Final Completion to occur in accordance with all Legal Requirements, each Project Document pursuant to which construction work with respect to the Project is being performed, the Credit Documents, and the Project Schedule, on or before the Date Certain; and (b) to pay or provide for all anticipated non-construction Project Costs, all as set forth in the current Project Budget (as amended, allocated, re-allocated or modified from time to time in accordance with Section 9.14 of the Note Purchase Agreement). After taking into consideration the making of the Credit Event hereby requested, the sources and uses of such Available Funds to achieve Final Completion are as follows:

Sources		Uses
Total:	$	Total:	$

EXHIBIT 4.2.1(a) TO NOTE PURCHASE AGREEMENT

7) The estimated (a) Commencement of Operations date (under and as defined in the MESPA), (b) Final Completion Date, and (c) Placed in Service Date are each set forth on Appendix III hereto, in the case of clauses (a) and (c), with respect to the Systems being funded under this requested Credit Event.

8) Each representation and warranty of each Credit Party in any of the Credit Documents to which it is a party is true and correct in all material respects (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” is true and correct in all respects) on and as of the date of the Drawdown Date, before and after giving effect to the Credit Event requested hereby, with the same effect as though made on and as of such date, unless such representation or warranty expressly relates solely to an earlier date.

9) To my knowledge, each representation and warranty of each Major Project Participant contained in the Operative Documents (other than the Note Purchase Agreement) is true and correct in all material respects (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” or the like is true and correct in all respects) on and as of the Drawdown Date, before and after giving effect to the Credit Event requested hereby, with the same effect as though made on and as of such date, unless such representation and warranty expressly relates solely to an earlier date.

10) No Default or Event of Default has occurred and is continuing or will result from the funding of the Credit Event hereby requested.

11) All work that has been done on the Project to date has been done in a good and workmanlike manner and in accordance with the Project Documents (including any and all approved change orders made in accordance therewith, if any; any such approved change orders are listed on Appendix V together with all other requested and pending change orders) and there has not been filed against any of the Collateral or otherwise filed with or served upon the Company with respect to the Project or any part thereof, notice of any Lien, claim of Lien or attachment upon or claim affecting the right to receive payment of any of the moneys payable to any of the Persons named on such request which has not been released by payment or bonding or otherwise or which will not be released with the payment of such obligation out of the Notes or non-Note proceeds hereby requested, other than Permitted Liens.

12) Except for any such Liens being contested by the Company as permitted under the definition of “Permitted Liens”, attached in Appendix IV are duly executed Lien waivers required to be delivered to each of the Holders pursuant to Section 4.2.4 of the Note Purchase Agreement relating to mechanics’ and materialmen’s Liens from each Person performing work at the Site or having a statutory right to file a mechanics’ and/or materialmen’s Lien, as the case may be, for all work, services and materials (including equipment and fixtures of all kinds, done, previously performed or furnished for the construction of the Project), for which the related Project Costs have been or will, from the proceeds of the requested Drawdown, be paid.

EXHIBIT 4.2.1(a) TO NOTE PURCHASE AGREEMENT

13) Each Applicable Permit and Applicable Third Party Permit has been duly obtained or been assigned in the Company’s or the applicable third party’s name, is in full force and effect, is not subject to any current legal proceeding, and is not subject to any Unsatisfied Condition that could reasonably be expected to result in material modification or revocation of such Applicable Permit and Applicable Third Party Permit, and all applicable appeal periods with respect to such Applicable Permit and Applicable Third Party Permit have expired. The Permits which have been obtained by the Company are not subject to any restriction, condition, limitation or other provision that could reasonably be expected to have a Material Adverse Effect.

14) [The Sponsor has built a permanent manufacturing facility for Systems located in the State of Delaware, and all Systems beyond which the Project has exceeded 10 MW of nameplate capacity have been sourced from such facility.]¹

15) The Company is in compliance with the Tariff in all respects.

16) Each System being financed has achieved COD or will achieve COD prior to the Drawdown Date.

17) The Tax Equity Investors have contributed to the Pledgor and the Pledgor in turn has contributed to the Company 20% of the aggregate purchase price of the Systems to be financed with the proceeds of the requested Credit Event, consistent with the Base Case Projections.

18) Concurrently with this Drawdown, the Tax Equity Investors have contributed to the Company [30.10]% of the aggregate purchase price of the Systems to be financed with the proceeds of the requested Credit Event, consistent with the Base Case Projections. After giving effect to this Drawdown, the ratio of amounts drawn from the Construction Escrow Account to the total Notes have not exceeded the ratio of the aggregate nameplate capacity of commissioned Systems to 30 MW.

19) [All shared infrastructure at [the applicable Site] necessary for installation of each Funded System to be installed at such Site, including without limitation the “BOF Work” for such Site, as such term is defined in the MESPA, has been completed.² ]

20) At any time following the Closing Date, no event, circumstance or condition has occurred and is continuing that has, or could reasonably be expected to have, a Material Adverse Effect.

[Signature page follows]

¹  Insert after the first Funded System has caused the Project to exceed 10 MW of nameplate capacity.

²  Only include for first Credit Event for each Site.

EXHIBIT 4.2.1(a) TO NOTE PURCHASE AGREEMENT

IN WITNESS WHEREOF, the undersigned has caused this Drawdown Certificate to be duly executed and delivered on behalf of the Company as of the date first above written.

DIAMOND STATE GENERATION PARTNERS, LLC, a Delaware limited liability company

By:

Name:

Title:

EXHIBIT 4.2.1(a) TO NOTE PURCHASE AGREEMENT

APPENDIX I

to Drawdown Certificate

Currently Estimated Aggregate Project Costs

Project Cost	Amount
	$
	$
	$
	$
	$
	Total: $

Summary of Variances in Estimated Project Costs (from Closing Date to Proposed Drawdown Date)

EXHIBIT 4.2.1(a) TO NOTE PURCHASE AGREEMENT

APPENDIX II

to Drawdown Certificate

Invoices

EXHIBIT 4.2.1(a) TO NOTE PURCHASE AGREEMENT

APPENDIX III

to Drawdown Certificate

Estimated Dates

Expected Final Completion Date:             , 20    

Expected Commercial Operation Date: [Indicate Commercial Operation Date for each individual system, by Serial Number or other distinct means]

Expected Placed in Service Date: [Indicate Placed in Service Date for each individual system, by Serial Number or other distinct means]

EXHIBIT 4.2.1(a) TO NOTE PURCHASE AGREEMENT

APPENDIX IV

to Drawdown Certificate

Lien Waivers

EXHIBIT 4.2.1(a) TO NOTE PURCHASE AGREEMENT

APPENDIX V

to Drawdown Certificate

Change Orders

1. Approved

2. Requested and Pending

EXHIBIT 4.2.1(a) TO NOTE PURCHASE AGREEMENT

EXHIBIT 4.2.1(b)

FORM OF INDEPENDENT ENGINEER’S DRAWDOWN CERTIFICATE

[Letterhead of Independent Engineer]

(Delivered pursuant to Section 4.2.1(b)

of the Note Purchase Agreement)

Date:	[                    ]4
	Drawdown Date: [                    ]

[                    ]

Subject: Independent Engineer’s Drawdown Certificate

Ladies and Gentlemen:

This Drawdown Certificate (this “Certificate”) is delivered to you by SAIC Energy, Environmental & Infrastructure, LLC (“SAIC”) as “Independent Engineer” pursuant to Section 4.2.1(b) of the Note Purchase Agreement, dated as of March 20, 2013 (as amended, supplemented or otherwise modified from time to time, the “Note Purchase Agreement”), among Diamond State Generation Partners, LLC, a Delaware limited liability company (the “Company”), and the Purchasers party thereto.

The Independent Engineer hereby makes the following statements as of the date of this certificate:

1. We have reviewed the provisions of Section 4.2.1 of the Note Purchase Agreement as they identify the responsibilities of the Independent Engineer related to providing this Certificate as required by Section 4.2.1(b).

2. All defined terms set forth in this Certificate shall have the respective meanings specified in the Note Purchase Agreement unless the context otherwise requires or unless otherwise defined. We have reviewed the Note Purchase Agreement as to the meaning of defined terms used herein.

3. We have reviewed the Company’s [Drawdown Certificate] No. [    ] and the attachments thereto, dated as of [                    ] (the “Current Drawdown Certificate”), requesting that a Drawdown from the Construction Escrow Account in the aggregate amount of [$        ] (the “Drawdown”) be disbursed on [                    ] (the “Drawdown Date”).

⁴  Certificate must be submitted to each Holder (with a copy to the Company) at least 4 Business Days prior to the date of each Drawdown.

EXHIBIT 4.2.1(b) TO NOTE PURCHASE AGREEMENT

4. In connection herewith, we have reviewed: (a) the Company’s, contractors’ and subcontractors’ monthly construction progress reports dated [                    ] for progress through [                    ]; (b) we have also reviewed the material and data made available to us by Bloom Energy Corporation as the “Seller” under the MESPA; and (c) we have reviewed other material, such as invoices, applications for payment, payment receipts and lien waivers or releases, relating to the development of the Project as we believed was necessary to establish the accuracy of the technical aspects of the Current Drawdown Certificate.

5. We last visited the Project Sites on [                    ] and observed progress at the Project. Our site observations of progress did not include investigation of buried items or other unobservable items or hidden conditions. We have reviewed documentation and held discussions with the Company regarding the progress of construction activities at the Project since that time.

6. This Certificate was prepared pursuant to the scope of services under our Amended and Restated Professional Services Agreement, dated as of March [    ], 2013 (the “Services Agreement”) with Bloom Energy Corporation, the Collateral Agent and each of the Purchasers and with the degree of skill and diligence normally practiced by professional engineers or consultants performing the same or similar services on like projects.

Based upon the foregoing review and review procedures and on the understanding and assumption that we have been provided true and complete information from other parties as to the matters covered by the Current Drawdown Certificate, as of the date of this Certificate, except as set forth in Attachment A to this Certificate, we are of the opinion that:

a. Based on our review of the Company’s previous expenditures compared to the Project Budget and our review of the progress of engineering, procurement and construction, we concur with the Company’s estimate of the Project Costs to Final Completion as set forth in the Current Drawdown Certificate [If not, continue as follows: , except as noted in Attachment A [state reasons and approximate amount of variance, if known in Attachment A]];

b. Each of the (a) Commencement of Operations Dates, (b) Final Completion Date, and (c) Placed in Service Dates are expected to be achieved by the dates indicated in Appendix III of the Current Drawdown Certificate [If not, continue as follows: , except as noted in Attachment A. [state reasons scheduled dates will vary from the estimates set forth in the Current Drawdown Certificate in Attachment A];

c. Our scope of review, which, to the extent practical and consistent with our scope of work under our Services Agreement, includes periodically reviewing the progress of engineering, procurement and construction for the Project, has not brought to our attention, any errors in the information contained in the Current Drawdown Certificate; [If any paragraphs in the Current Drawdown Certificate are incorrect, list and specify reasons for each paragraph in Attachment A.]

d. To our knowledge no other Permits other than the permits identified in Schedule 5.19 of the Note Purchase Agreement are required in connection with the construction and operation of the Project;

EXHIBIT 4.2.1(b) TO NOTE PURCHASE AGREEMENT

e. To the best of our knowledge and the extent of our site observations, the quality of construction performed during the period covered by this Certificate was performed materially in conformance with the applicable construction Project Documents; [If unsatisfactory, specify reasons in Attachment A.]

f. The work accomplished during the period covered by this Certificate is in accordance with the Project Schedule; [If unsatisfactory, specify reasons in Attachment A.]

g. The request for funds in the Current Drawdown Certificate is in conformance, on a cumulative basis, with the drawdown schedule included with the Project Budget; and [If not, state reasons in Attachment A.]

h. To the best of our knowledge, there are no approved, pending or proposed change orders that are not listed in Appendix V to the Current Drawdown Certificate [except as noted in Attachment A [list change orders in Attachment A]].

This Certificate is solely for the information of and assistance to each of the Purchasers in conducting and documenting their investigation of the matters in connection with the Project and is not to be used, circulated, quoted, or otherwise referred to for any other purpose. This Certificate is not intended to, and may not, be construed to benefit any party other than the Purchasers.

Very truly yours,

SAIC ENERGY, ENVIRONMENT & INFRASTRUCTURE, LLC

[Name goes here]

[Title goes here]

[Name goes here]

[Title goes here]

EXHIBIT 4.2.1(b) TO NOTE PURCHASE AGREEMENT

SCHEDULE I – THIRD PARTIES

EXHIBIT 4.2.1(b) TO NOTE PURCHASE AGREEMENT

ATTACHMENT A

EXCEPTIONS AND CLARIFICATIONS

[List any exceptions or clarifications. If there are none indicate “NONE”.]

EXHIBIT 4.2.1(b) TO NOTE PURCHASE AGREEMENT

EXHIBIT 4.2.1(c)

FORM OF COMPANY’S COD CERTIFICATE

[LETTERHEAD OF COMPANY]

Date:              ,         ⁵

Drawdown Date:              ,         

[                    ]

SAIC Energy, Environment & Infrastructure, LLC,

as Independent Engineer

Meditech Corporate Center, West Wing

550 Cochituate Road

Framingham, MA 01701

Re: Diamond State Generation Partners, LLC – Drawdown Certificate Confirmation of COD

Ladies and Gentlemen:

This Drawdown Certificate Confirmation of Commencement of Operations (“Certificate of COD”) is delivered to you pursuant to Section 4.2.1(c) of the Note Purchase Agreement, dated as of March 20, 2013 (as amended, supplemented or otherwise modified from time to time, the “Note Purchase Agreement”), among Diamond State Generation Partners, LLC, a Delaware limited liability company, (the “Company”), and the Purchasers party thereto. Capitalized terms used herein and not otherwise defined have the meanings provided in the Note Purchase Agreement.

I, [                    ], am a Responsible Officer of the Company. I have reviewed the provisions of the Credit Documents which are relevant to the furnishing of this Drawdown Certificate of COD for the Systems listed in Appendix 1 to this Certificate of COD. To the extent that this Certificate of COD evidences, attests or confirms compliance with any covenants, representations, warranties or conditions precedent provided for in the Credit Documents, I have made such examination or investigation as was, in my opinion, reasonably necessary to enable me to express an informed opinion as to whether such covenants, representations, warranties or conditions have been complied with. This Certificate of COD relates to a Credit Event to take place on the date specified above as the “Drawdown Date” (the “Drawdown Date”).

⁵  Certificate must be submitted to each Holder and Independent Engineer at least 2 Business Days prior to the date of each Drawdown.

I, on behalf of the Company, solely in my capacity as a Responsible Officer of the Company and not in my personal capacity, and without personal liability therefor, do hereby certify to the Secured Parties that the following statement is accurate, true and complete on the date hereof, and will be accurate, true and complete on and as of the Drawdown Date:

1) COD has occurred with respect to the Systems listed in Appendix 1 being funded under this requested Credit Event.

IN WITNESS WHEREOF, the undersigned has caused this Drawdown Certificate Confirmation of COD to be duly executed and delivered on behalf of the Company as of the date first above written.

	DIAMOND STATE GENERATION
	PARTNERS, LLC, a Delaware limited liability company
	By:
	Name:
	Title:
Appendix

EXHIBIT 4.2.1(c) TO NOTE PURCHASE AGREEMENT

APPENDIX 1

Systems Commencement of Operations

Date:                  ,         ⁶

Drawdown Date:                  ,         

System Number System Description

⁶  Certificate must be submitted to each Holder and Independent Engineer at least 2 Business Days prior to the submission of each Drawdown.

EXHIBIT 4.2.1(c) TO NOTE PURCHASE AGREEMENT

EXHIBIT 4.2.1(d)

FORM OF INDEPENDENT ENGINEER’S COD CERTIFICATE

[Letterhead of Independent Engineer]

(Delivered pursuant to Section 4.2.1(d)

of the Note Purchase Agreement)

Date: [                    ]⁷

Drawdown Date: [                    ]

[                    ]

Subject: Independent Engineer’s Drawdown Certificate Confirmation of COD

Ladies and Gentlemen:

This Independent Engineer’s Drawdown Certificate Confirmation of COD (this “Certificate”) is delivered to you by SAIC Energy, Environmental & Infrastructure, LLC (“SAIC”) as “Independent Engineer” pursuant to Section 4.2.1(d) of the Note Purchase Agreement, dated as of March 20, 2013 (as amended, supplemented or otherwise modified from time to time, the “Note Purchase Agreement”), among Diamond State Generation Partners, LLC, a Delaware limited liability company (the “Company”) and the Purchasers party thereto.

The Independent Engineer hereby makes the following statements as of the date of this certificate:

1. We have reviewed the provisions of Section 4.2.1 of the Note Purchase Agreement as they identify the responsibilities of the Independent Engineer related to providing this Certificate as required by Section 4.2.1(d).

2. All defined terms set forth in this Certificate shall have the respective meanings specified in the Note Purchase Agreement unless the context otherwise requires or unless otherwise defined. We have reviewed the Note Purchase Agreement as to the meaning of defined terms used herein.

3. We have reviewed the Company’s [Drawdown Certificate] No. [    ] and the attachments thereto, dated as of [                    ] (the “Current Drawdown Certificate”), requesting that a Drawdown from the Construction Escrow Account be disbursed on [                    ] (the “Drawdown Date”). We have also reviewed the Company’s COD Certificate dated as of [                    ].

4. We last visited the Project Sites on [                    ] and observed progress at the Project. Our site observations of progress did not include investigation of buried items or

⁷  Certificate must be submitted to each Holder (with a copy to the Company) at least 1 Business Day prior to the date of each Drawdown.

other unobservable items or hidden conditions. We have reviewed documentation and held discussions with the Company regarding the progress of construction activities at the Project since that time.

5. This Certificate was prepared pursuant to the scope of services under our Amended and Restated Professional Services Agreement, dated as of March 15, 2013 (the “Services Agreement”) with Bloom Energy Corporation, the Collateral Agent and the Purchasers and with the degree of skill and diligence normally practiced by professional engineers or consultants performing the same or similar services on like projects.

Based upon the foregoing review and review procedures and on the understanding and assumption that we have been provided true and complete information from other parties as to the matters covered by the Current Drawdown Certificate, as of the date of this Certificate, except as set forth in this Certificate, we are of the opinion that:

A. COD [choose one: has/has not] occured with respect to the Systems being funded under this requested Credit Event.

This Certificate is solely for the information of and assistance to each of the Purchasers in conducting and documenting their investigation of the matters in connection with the Project and is not to be used, circulated, quoted, or otherwise referred to for any other purpose. This Certificate is not intended to, and may not, be construed to benefit any party other than the Purchasers.

Very truly yours,

SAIC ENERGY, ENVIRONMENT &

INFRASTRUCTURE, LLC

[Name goes here]

[Title goes here]

[Name goes here]

[Title goes here]

EXHIBIT 4.2.1(d) TO NOTE PURCHASE AGREEMENT

EXHIBIT 4.4.3

FORM OF FINAL COMPLETION CERTIFICATE OF THE COMPANY

[LETTERHEAD OF COMPANY]

Date:                  ,             

[Addressees]

SAIC Energy, Environment & Infrastructure, LLC,

as Independent Engineer

[Address]

Re: Diamond State Generation Partners, LLC – Final Completion Certificate

Ladies and Gentlemen:

This Final Completion Certificate (this “Certificate”) is delivered to you pursuant to Section 4.4.3 of the Note Purchase Agreement, dated as of March 20, 2013 (as amended, supplemented or otherwise modified from time to time, the “Note Purchase Agreement”), among Diamond State Generation Partners, LLC, a Delaware limited liability company (the “Company”) and the Purchasers party thereto. Capitalized terms used herein and not otherwise defined have the meanings provided in the Note Purchase Agreement.

I, [                    ], am a Responsible Officer of the Company. I have reviewed the provisions of the Credit Documents which are relevant to the furnishing of this Certificate. To the extent that this Certificate evidences, attests or confirms compliance with any covenants, representations, warranties or conditions precedent provided for in the Credit Documents, I have made such examination or investigation as was, in my opinion, reasonably necessary to enable me to express an informed opinion as to whether such covenants, representations, warranties or conditions have been complied with.

I, on behalf of the Company, solely in my capacity as a Responsible Officer of the Company and not in my personal capacity, and without personal liability therefor, do hereby certify to the Secured Parties that the following statements are accurate, true and complete on the date hereof, except as waived in writing by the Required Holders:

1) All facilities necessary for the Project as contemplated under the Tariff and the Operative Documents have been constructed, installed, completed, tested, commissioned and paid for in accordance with the Operative Documents.

2) All facilities necessary for the Project as contemplated under the Tariff and the Operative Documents have been completely constructed utilizing standards of workmanship and

EXHIBIT 4.4.3 TO NOTE PURCHASE AGREEMENT

materials in accordance with the MESPA and in accordance with the terms of the Tariff and Prudent Electrical Practices (as such term is defined in the MESPA) and all relevant equipment has been installed and is operating in accordance with the MESPA.

3) Each of the Systems has achieved COD.

4) [Choose one: [30 MW of Systems have passed the Performance Tests and have demonstrated performance at or better than nameplate capacity on or before the Date Certain.] / [Less than 30 MW of Systems have passed the Performance Tests and demonstrated performance at or better than nameplate capacity on or before the Date Certain, and the Company has paid the Buydown Amount.]]

5) All Major Project Documents are in full force and effect and no default or event of default has occurred and is continuing under any Major Project Document.

6) The Company (i) has obtained and delivered to each of the Purchasers copies of all material Applicable Permits obtained or to be obtained by or in the name of the Company and required to operate the Project, and (ii) is in compliance with all material Applicable Permits in all material respects thereunder.

7) The Tariff is final, non-appealable and in full force and effect.

8) All work that has been done on the Project to date has been done in a good and workmanlike manner and in accordance with the Project Documents (including any and all approved change orders made in accordance therewith, if any; any such approved change orders are listed on Appendix I together with all other requested and pending change orders) and there has not been filed against any of the Collateral or otherwise filed with or served upon the Company with respect to the Project or any part thereof, notice of any Lien, claim of Lien or attachment upon or claim affecting the right to receive payment of any of the moneys payable to any of the Persons named on such request which has not been released by payment or bonding or otherwise or which will not be released with the payment of such obligation out of the Notes or non Note proceeds hereby requested, other than Permitted Liens.

9) Except for any such Liens being contested by the Company as permitted under the definition of “Permitted Liens”, attached in Appendix II are duly executed Lien waivers required to be delivered to each of the Holders pursuant to Section 4.4.1 of the Note Purchase Agreement relating to mechanics’ and materialmen’s Liens from each Person performing work at the Site or having a statutory right to file a mechanics’ and/or materialmen’s Lien, as the case may be, for all work, services and materials (including equipment and fixtures of all kinds, done, previously performed or furnished for the construction of the Project), for which the related Project Costs have been or will be paid.

IN WITNESS WHEREOF, the undersigned has caused this Certificate to be duly executed and delivered on behalf of the Company as of the date first above written.

EXHIBIT 4.4.3 TO NOTE PURCHASE AGREEMENT

DIAMOND STATE GENERATION

PARTNERS, LLC, a Delaware limited liability company

By:

Name:

Title:

EXHIBIT 4.4.3 TO NOTE PURCHASE AGREEMENT

APPENDIX I

to Final Completion Certificate

Change Orders

1. Approved

2. Requested and Pending

EXHIBIT 4.4.3 TO NOTE PURCHASE AGREEMENT

APPENDIX II

to Final Completion Certificate

Lien Waivers

EXHIBIT 4.4.3 TO NOTE PURCHASE AGREEMENT

EXHIBIT 4.4.4

FORM OF FINAL COMPLETION CERTIFICATE OF THE INDEPENDENT ENGINEER

[Letterhead of Independent Engineer]

(Delivered pursuant to Section 4.4.4

of the Note Purchase Agreement)

Date: [                    ]

[Addressees]

Subject: Independent Engineer’s Final Completion Certificate

Ladies and Gentlemen:

This Independent Engineer’s Final Completion Certificate (this “Certificate”) is delivered to you by SAIC Energy, Environmental & Infrastructure, LLC (“SAIC”) as “Independent Engineer” pursuant to Section 4.4.4 of the Note Purchase Agreement, dated as of March 20, 2013 (as amended, supplemented or otherwise modified from time to time, the “Note Purchase Agreement”), among Diamond State Generation Partners, LLC, a Delaware limited liability company (the “Company”) and the Purchasers party thereto.

The Independent Engineer hereby makes the following statements as of the date of this Certificate:

1. We have reviewed the provisions of Sections 4.4.4 of the Note Purchase Agreement as they identify the responsibilities of the Independent Engineer related to providing this Certificate as required by Section 4.4.4. We issue this Certificate pursuant to our responsibilities with regard to the Project as set forth in the Note Purchase Agreement, including review of completion testing, infrastructure work, compliance with Project Schedule and budget and adequacy of remaining funds.

2. All defined terms set forth in this Certificate shall have the respective meanings specified in the Note Purchase Agreement unless the context otherwise requires or unless otherwise defined. We have reviewed the Note Purchase Agreement as to the meaning of defined terms used herein.

3. This Certificate was prepared pursuant to the scope of services under our Amended and Restated Professional Services Agreement, dated as of March 15, 2013 (the “Services Agreement”) with Bloom Energy Corporation, the Collateral Agent and each of the Purchasers and with the degree of skill and diligence normally practiced by professional

EXHIBIT 4.4.4 TO NOTE PURCHASE AGREEMENT

engineers or consultants performing the same or similar services on like projects. Our review and observations are based on the understanding and assumption that we have been provided true and complete information from other parties as to the matters covered by this Certificate.

4. All facilities necessary for the Project as contemplated under the Tariff and the applicable construction Project Documents have been constructed, installed, completed, tested, commissioned and paid for in accordance with the applicable construction Project Documents.

5. All facilities necessary for the Project as contemplated under the Tariff and the applicable construction Project Documents have been completely constructed utilizing standards of workmanship and materials in accordance with the MESPA and in accordance with the terms of the Tariff and Prudent Electrical Practices (as such term is defined in the MESPA) and all relevant equipment has been installed and is operating in accordance with the MESPA.

6. Each of the Systems has achieved COD.

7. [Choose one: [30 MW of Systems have passed the Performance Tests and have demonstrated performance at or better than nameplate capacity on or before the Date Certain.] / [Less than 30 MW of Systems have passed the Performance Tests and demonstrated performance at or better than nameplate capacity on or before the Date Certain, and the Company has paid the Buydown Amount.]]

This Certificate is solely for the information of and assistance to each of the Purchasers in conducting and documenting their investigation of the matters in connection with the Project and is not to be used, circulated, quoted, or otherwise referred to within or without the lending group for any other purpose. This Certificate is not intended to, and may not, be construed to benefit any party other than the Purchasers.

Very truly yours,

SAIC ENERGY, ENVIRONMENT &

INFRASTRUCTURE, LLC

[Name goes here]

[Title goes here]

[Name goes here]

[Title goes here]

EXHIBIT 4.4.4 TO NOTE PURCHASE AGREEMENT

EXHIBIT 8.1.3(b)

FORM OF OFFER TO REPAY NOTICE

[Insert name of holder of the Note]

[Insert address of holder of the Note]

[Insert date]

Reference is made to the Note Purchase Agreement dated as of March 20, 2013 (as amended, modified or supplemented and in effect from time to time, the “Note Purchase Agreement”) among Diamond State Generation Partners, LLC, a Delaware limited liability company (the “Company”) and the Purchasers party thereto. Terms used herein and not otherwise defined herein have the meanings assigned to such terms in the Note Purchase Agreement.

Pursuant to Section 8.1.3(b) of the Note Purchase Agreement, the Company hereby notifies you that it is making the following Offer to Repay:

1. The Offer Settlement Date shall be [        ]⁸.

2. The aggregate principal amount of all Notes to be repaid on the Offer Settlement Date shall be $[        ]⁹.

Please indicate your acceptance in whole or in part of the Offer to Repay by executing and delivering the notice in the form attached as Schedule 1 hereto on or prior to the fifth (5^th) Business Day prior to the Offer Settlement Date. If you do not accept the Offer to Repay in whole on or prior to [        ]¹⁰, you shall be deemed to have rejected the Offer to Repay, and, accordingly, your Notes will not be repaid on the Offer Settlement Date.

Sincerely,
DIAMOND STATE GENERATION PARTNERS, LLC
By:
	Name:
	Title:

⁸  Insert date twenty (20) Business Days after the date hereof.

⁹  Insert aggregate amount of all Notes to be repaid pursuant to this Offer to Repay Notice, which shall be the principal amount of the Notes at 100% of the principal amount thereof, together with accrued and unpaid interest thereon to the Offer Settlement Date and without payment of the Make-Whole Amount or any premium.

¹⁰  Insert the date that is five (5) Business Days prior to the Offer Settlement Date.

EXHIBIT 8.1.3(b) TO NOTE PURCHASE AGREEMENT

Schedule 1

TO OFFER TO REPAY NOTICE

FORM OF OFFER ACCEPTANCE NOTICE

OFFER ACCEPTANCE NOTICE

Diamond State Generation Partners, LLC

1252 Orleans Drive

Sunnyvale, CA 94089

Attention: [                    ]

[Insert Date]

Reference is made to the Note Purchase Agreement dated as of March 20, 2013 (as amended, modified or supplemented and in effect from time to time, the “Note Purchase Agreement”) among Diamond State Generation Partners, LLC, a Delaware limited liability company (the “Company”) and the Purchasers party thereto. Terms used herein and not otherwise defined herein have the meanings assigned to such terms in the Note Purchase Agreement. Reference is also made to the Offer to Repay Notice dated as of [Insert Date].

Pursuant to Section 8.1.3(b) of the Note Purchase Agreement, we hereby notify the Company that we accept the Offer to Repay in full as set forth in the Offer to Repay Notice.

Sincerely,
[Insert name of holder of the Notes]
By:
	Name:
	Title:

EXHIBIT 8.1.3(b)

To Note Purchase Agreement