EXHIBIT 99.4
AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
This Amended and Restated Stockholders Agreement, dated as of March 19,
2004 (as it may be amended, restated or modified and in effect from time to
time, this "Agreement"), is made by and among Electric City Corp., a Delaware
corporation (the "Company"), and the following persons and entities (each, a
"Holder," and collectively the "Holders", except that, for purposes of this
Agreement, Originators Investment Plan, L.P. and Xxxxxx Xxxxxxx Xxxx Xxxxxx
Equity Funding, Inc. shall be considered together as one "Holder"), Newcourt
Capital USA, Inc. ("Newcourt Capital"), Originators Investment Plan, L.P.
("OIP"), Xxxxxx Xxxxxxx Xxxx Xxxxxx Equity Funding, Inc., ("Xxxxxx Xxxxxxx"),
Cinergy Ventures II, LLC ("Cinergy Ventures"), Leaf Mountain Company, LLC ("Leaf
Mountain"), Augustine Fund LP, ("Augustine"), Technology Transformation Venture
Fund, LP ("TVF"), Xxxx Xxxxxxx ("Xxxxxxx"), Xxxxxxx X. Xxxxxxx ("Xxxxxxx"),
Xxxxx X. Xxxxxxx ("Xxxxxxx") and Xxxx Xxxxxx Hurvis Revocable Trust ("Hurvis
Trust").
W I T N E S S E T H:
WHEREAS, each of the Holders is a holder of certain shares of the
Company's outstanding Series A Convertible Preferred Stock ("Series A
Preferred"), Series C Convertible Preferred Stock ("Series C Preferred") and/or
Series D Convertible Preferred Stock ("Series D Preferred" and, together with
the Series A Preferred and the Series C Preferred, the "Existing Preferred
Stock"); and
WHEREAS, the Company and certain Holders have previously entered into
that certain Stockholders Agreement, dated as of July 31, 2001, as amended (the
"Prior Agreement"); and
WHEREAS, the Company and the Holders and SF Capital Partners, Ltd. ("SF
Capital") have entered into that certain Redemption and Exchange Agreement,
dated as of the date hereof (as it may be amended, restated or modified and in
effect from time to time, the "Redemption and Exchange Agreement"), whereby the
Company will redeem for cash and/or exchange for shares of the Company's newly
created Series E Convertible Preferred Stock, par value $0.01 per share (the
"Series E Preferred Stock"), all of the outstanding shares of Existing Preferred
Stock held by the Holders and by SF Capital, and certain Holders will also
exchange certain warrants to purchase shares of the Series D Preferred for
warrants to purchase shares of Series E Preferred Stock, all as more fully
described in the Redemption and Exchange Agreement; and
WHEREAS, it is a condition to the obligations of the Holders to
exchange such securities pursuant to the Redemption and Exchange Agreement that
the parties hereto enter into this Agreement; and
WHEREAS, the Company and the Holders desire that this Agreement
supersede and replace the Prior Agreement in its entirety;
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto agree as follows:
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ARTICLE I
DEFINITIONS
1.1 Defined Terms. All terms capitalized but not defined herein
shall have the meaning attributable to such terms in the Redemption and Exchange
Agreement, except where the context otherwise requires. The following additional
terms when used in this Agreement, including its preamble and recitals, shall,
except where the context otherwise requires, have the following meanings, such
meanings to be equally applicable to the singular and plural forms thereof:
"Affiliate" means, as applied to any Person, any other Person
controlling, controlled by or under common control with such Person. For
purposes of this definition, "control" (including, with correlative meanings,
the terms "controlled by" and "under common control with"), as applied to any
Person, shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of any such other
Person, whether through the ownership of voting securities or by contract or
otherwise.
"Agreement" shall have the meaning set forth in the preamble hereof.
"Board Observer" means an individual who shall not be a member of the
Board and who shall have the rights set forth in Section 2.3 hereof.
"Board" means the Board of Directors of the Company.
"Change of Control Transaction" means a transaction that results in the
occurrence of any of the following events: (i) any "person" or "group" (as such
terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of
1934 (the "Exchange Act")) is or becomes the "beneficial owner" (as defined in
Rules 13d-3 and 13d-5 under the Exchange Act, except that a person shall be
deemed to have "beneficial ownership" of all securities that such person has the
right to acquire, whether such right is exercisable immediately or only after
the passage of time), directly or indirectly, of more than 40% of the total
outstanding voting stock of the Company; (ii) the Company consolidates with or
merges with or into another person or conveys, transfers, leases or otherwise
disposes of all or substantially all of its assets to any person, or any person
consolidates with or merges with or into the Company, in any such event,
pursuant to a transaction in which the outstanding voting stock of the Company
is converted into or exchanged for cash, securities or other property; (iii) any
person consolidates with or merges with or into a subsidiary of the Company and
such consolidation or merger results in the transfer of fifty percent (50%) or
more of the outstanding voting power of the Company or results in the holders of
the outstanding voting securities of this Company immediately prior to such
transaction holding less than a majority of the voting securities of this
Company or the surviving entity immediately thereafter; or (iv) the Company is
liquidated, dissolved or a special resolution is passed by the stockholders of
the Company approving the plan of liquidation or dissolution.
"Closing Date" shall have the meaning given to it in the Redemption and
Exchange Agreement.
"Commission" means the United States Securities and Exchange Commission
or any other governmental authority at the time administering the Securities Act
of 1933, as amended.
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"Common Stock" means and includes the Company's authorized common
stock, par value $0.0001 per share.
"Company" shall have the meaning set forth in the preamble.
"Director" means a director of the Company.
"Holders" means the entities (or groups of entities, as the case may
be) set forth in the preamble.
"Information" shall have the meaning set forth in Section 3.13.
"Other Companies" means Persons that may directly or indirectly compete
with any or all of the business of the Company or its subsidiaries.
"Parity Stock" shall have the meaning given to it in the Series E
Certificate of Designations.
"Person" means and includes an individual, a corporation, a limited
liability company, an association, a partnership, a trust or estate, a
government or any department or agency thereof.
"Redemption and Exchange Agreement" shall have the meaning set forth in
the third WHEREAS clause hereof.
"Senior Stock" shall have the meaning given to it in the Series E
Certificate of Designations.
"Series E Certificate of Designations" means the Certificate of
Designations, Preferences and Relative, Participating, Optional and Other
Special Rights of Preferred Stock and Qualifications, Limitations and
Restrictions Thereof of Series E Convertible Preferred Stock of Electric City
Corp., as filed with the Secretary of State of Delaware and as may be amended
and in effect from time to time.
"Series E Preferred Stock" shall have the meaning set forth in the
third WHEREAS clause hereof.
"Unlimited Parties" shall have the meaning set forth in Section 3.13.
ARTICLE II
VOTING
2.1 Board Nominations. The Company and the Holders hereby agree
that:
(a) For so long as the aggregate number of issued and outstanding
shares of Series E Preferred Stock is at least 90,000 shares (as adjusted for
stock splits, stock combinations, recapitalizations and the like), the four
Holders holding the greatest number of shares of Series E Preferred Stock, for
so long as each such Holder and its Affiliates hold in the aggregate at least
12.5% of the aggregate number of issued and outstanding shares of Series E
Preferred Stock as
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of the Closing Date (as adjusted for stock splits, stock combinations,
recapitalizations and the like, but excluding any unissued shares which such
Holder may have the right to acquire pursuant to any warrants to purchase Series
E Preferred Stock), shall each be entitled, through a nominating committee or
other procedure adopted by the Board, to designate for nomination by the Board
one nominee for election to the Board by the holders of the Series E Preferred
Stock, voting as a single class to the exclusion of all other classes of the
Company's capital stock, each time Directors of the Company are to be elected.
(b) For so long as the aggregate number of issued and outstanding
shares of Series E Preferred Stock is at least 65,000 shares but less than
90,000 shares (as adjusted for stock splits, stock combinations,
recapitalizations and the like), the three Holders holding the greatest number
of shares of Series E Preferred Stock, for so long as each such Holder and its
Affiliates hold in the aggregate at least 9.375% of the aggregate issued and
outstanding shares of Series E Preferred Stock as of the Closing Date (as
adjusted for stock splits, stock combinations, recapitalizations and the like,
but excluding any unissued shares which such Holder may have the right to
acquire pursuant to any warrants to purchase Series E Preferred Stock) shall
each be entitled, through a nominating committee or other procedure adopted by
the Board, to designate for nomination by the Board one nominee for election to
the Board by the holders of the Series E Preferred Stock, voting as a single
class to the exclusion of all other classes of the Company's capital stock, each
time Directors of the Company are to be elected.
(c) For so long as the aggregate number of issued and outstanding
shares of Series E Preferred Stock is at least 45,000 shares but less than
65,000 shares (as adjusted for stock splits, stock combinations,
recapitalizations and the like), a majority-in-interest of the outstanding
shares of Series E Preferred Stock shall be entitled, through a nominating
committee or other procedure adopted by the Board, to designate for nomination
by the Board two nominees for election to the Board by the holders of the Series
E Preferred Stock, voting as a single class to the exclusion of all other
classes of the Company's capital stock, each time Directors of the Company are
to be elected.
(d) For so long as the aggregate number of issued and outstanding
shares of Series E Preferred Stock is at least 20,000 shares but less than
45,000 shares (as adjusted for stock splits, stock combinations,
recapitalizations and the like), a majority-in-interest of the outstanding
shares of Series E Preferred Stock shall be entitled, through a nominating
committee or other procedure adopted by the Board, to designate for nomination
by the Board one nominee for election to the Board by the holders of the Series
E Preferred Stock, voting as a single class to the exclusion of all other
classes of the Company's capital stock, each time Directors of the Company are
to be elected.
(e) For the purposes of Sections 2.1(a) and 2.1(b), within 30 days
of the first day that any Holder and its Affiliates hold less than 12.5% in the
case of Section 2.1(a), or 9.375% in the case of Section 2.1(b), of the
aggregate issued and outstanding shares of Series E Preferred Stock as of the
Closing Date (as adjusted for stock splits, stock combinations,
recapitalizations and the like, but excluding any unissued shares which such
Holder may have the right to acquire pursuant to any warrants to purchase Series
E Preferred Stock), such Holder shall cause the Director nominated by such
Holder to resign from the Board.
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2.2 Board of Directors of the Company.
(a) So long as a Holder shall hold any shares of Series E
Preferred Stock, such Holder shall vote all of its shares of Series E Preferred
Stock for the election of all Directors nominated pursuant to Section 2.1
hereof. The nominee designated by each Holder or Holders shall be identified in
a proxy statement delivered to the Company stockholders in connection with any
annual meeting of stockholders or to the Holders in connection with a special
meeting of the Holders of Series E Preferred Stock, if such nominees have not
been already elected by written consent of the Holders.
(b) Each Holder shall appear in person or by proxy at all annual
or special meetings of stockholders and at all special meetings of the holders
of Series E Preferred Stock for the purpose of obtaining a quorum and shall vote
or cause the vote of the Series E Preferred Stock owned by such Holder or by any
Affiliate of such Holder, either in person or by proxy, to be cast in accordance
with the provisions of this Article II.
(c) Each Holder shall vote all of its Series E Preferred Stock in
favor of removal from the Board, upon notice by a Holder or Holders that an
individual designated by it or them, as the case may be, pursuant to Section 2.1
should be removed, and to use its best efforts to cause the Board to fill the
vacancy so vacated with another person designated by a Holder in accordance with
this Agreement (unless such removal resulted from circumstances requiring a
resignation pursuant to Section 2.1(e) which resignation has not occurred). Each
Holder shall cooperate fully in connection with the nomination of Directors, the
voting of its shares of Series E Preferred Stock, the execution of written
consents (if then permissible under the Certificate of Incorporation (as amended
and restated from time to time) of the Company), the calling of meetings and
other stockholder matters to effect the provisions of this Article II.
(d) If any Director nominated pursuant to Section 2.1 is unable to
serve, or once having commenced to serve, is removed or withdraws from the
Board, the Holder or Holders, as the case may be, who designated such Director
will be entitled to designate an individual to fill the vacancy on the Board so
created and each Holder will use its best efforts to cause the Board to fill the
vacancy so created with the individual so designated, in accordance with the
Certificates of Designations (unless such removal or withdrawal resulted from
circumstances requiring a resignation pursuant to Section 2.1(e) which
resignation has not occurred).
(e) Each Holder shall not and shall not permit any of its
Affiliates to grant any proxy or enter into or be bound by any voting trust or
voting agreement with respect to its Series E Preferred Stock, or enter into any
arrangements of any kind with any Person with respect to its Series E Preferred
Stock, in any case in a manner that is inconsistent with the provisions of this
Agreement.
(f) The Company shall take such actions as may be necessary to
permit the Holders to elect the nominees of the Holders pursuant to the
provisions of this Article II or to appoint such nominees to the Board to fill
any vacancy resulting from the death, resignation, removal or other withdrawal
from the Board of a Director previously designated by the Holders of the Series
E Preferred Stock (unless such removal or withdrawal resulted from from
circumstances requiring a resignation pursuant to Section 2.1(e) which
resignation has not occurred), and if
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necessary, to be included in the slate of nominees recommended by the Board to
the Company's stockholders for election as Directors.
(g) For so long as any shares of Series E Preferred Stock remain
outstanding, the number of Directors serving on the Board shall be fixed by
resolution of the Board at twelve (12) and shall not be increased or decreased
except in accordance with Section 6(e) of the Series E Certificate of
Designations.
2.3 Board Observation Rights. If a Holder possesses the right to
designate for nomination to the Board its nominee pursuant to Section 2.1(a) or
Section 2.1(b), or no longer possesses a right to designate for nomination to
the Board a nominee pursuant to Section 2.1(a) or Section 2.1(b), but such
Holder and its Affiliates hold at least an aggregate of 2,000,000 shares of the
Common Stock (calculated assuming the exercise of all rights, options and
warrants to purchase Common Stock or securities convertible or exchangable for
shares of Common Stock, and the exchange or conversion of all securities
convertible or exchangeable for Common Stock), then such Holder shall be
entitled to designate one individual to serve as a Board Observer, provided
that, notwithstanding the foregoing, (i) while Leaf Mountain holds 10,000 or
more shares of Series E Preferred Stock (as adjusted for stock splits, stock
combinations and the like), Leaf Mountain shall be entitled to designate one
individual to serve as a Board Observer , and (ii) while Xxxxxx Xxxxxxx and OIP
collectively holds 7,500 or more shares of Series E Preferred Stock (as adjusted
for stock splits, stock combinations and the like), Xxxxxx Xxxxxxx shall be
entitled to designate one individual to serve as a Board Observer. Such Board
Observer will be invited to attend all meetings of the Board and any Board
committees as an observer and to receive copies of all materials and
communications provided to the Board and Board committees when so distributed.
The Board Observer will not be excluded from any portion of Board meetings,
Board committee meetings or Board discussions except for those portions (a) in
which the Company's counsel communicates with the Board on matters where Board
Observer's attendance would result in loss of the attorney-client privilege for
the Company and (b) in which, in the good faith judgment of counsel to the
Company, participation by the Board Observer is not appropriate under applicable
law.
2.4 Conversion of Series E Preferred Stock. Any Holder (including
its Affiliates) who converts more than 50% of the shares of Series E Preferred
Stock (as adjusted for stock splits, stock combinations and the like) received
by it upon closing under the Redemption and Exchange Agreement shall, at the
written request of the Company, convert all of its remaining shares of Series E
Preferred Stock, if any, within five (5) Business Days of receipt of such
request, in accordance with Section 7(c) of the Series E Certificate of
Designations. Any transferee of a Holder (other than a Holder's Affiliates) who
converts more than 50% of the shares of Series E Preferred Stock transferred to
it by a Holder shall, at the written request of the Company, convert all of its
remaining shares of Series E Preferred Stock, if any, within five (5) Business
Days of receipt of such request, in accordance with Section 7(c) of the Series E
Certificate of Designations.
2.5 Approval of Certain Actions by Holders.
(a) For so long as any shares of Series E Preferred Stock remain
issued and outstanding, the Company shall not, without the affirmative consent
or approval of the holders of
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record representing 75% or more of the aggregate number of shares of Series E
Preferred Stock then outstanding, voting as a single class to the exclusion of
all other classes of the Company's capital stock (such consent or approval to be
given by written consent in lieu of a meeting if allowable under the Company's
Certificate of Incorporation or by vote at a meeting called for such purpose for
which notice shall have been given to the holders of the Series E Preferred
Stock) (i) enter into any agreement that would restrict the Company's ability to
perform under the Redemption and Exchange Agreement; (ii) amend its Certificate
of Incorporation (including the Series E Certificate of Designations) or By-laws
in any way that could adversely affect, alter or change the rights, powers or
preferences of the Series E Preferred Stock, through merger, consolidation,
recapitalization, reclassification or otherwise; (iii) engage in any transaction
that would directly impair or reduce the rights, powers or preferences of the
Series E Preferred Stock as a class; or (iv) complete any Change of Control
Transaction (provided that if the aggregate number of shares of the Series E
Preferred Stock outstanding is less than 45,000 shares (as adjusted for stock
splits, stock combinations, recapitalizations and the like)) and the then
holders of Series E Preferred Stock refuse to consent to such Change of Control
Transaction, the Company may, at its option, redeem all, but not less than all,
of such Series E Preferred Stock pursuant to Section 6(e)(i)(D) of the Series E
Certificate of Designations.
(b) For so long as the aggregate number of issued and outstanding
shares of Series E Preferred Stock is at least 90,000 shares (as adjusted for
stock splits, stock combinations, recapitalizations and the like), the Company
shall not, without the affirmative consent or approval of the holders of record
of shares representing 66-2/3% of the aggregate number of shares of Series E
Preferred Stock then outstanding, voting as a single class to the exclusion of
all other classes of the Company's capital stock (such consent or approval to be
given by written consent in lieu of a meeting if allowable under the Company's
Certificate of Incorporation or by vote at a meeting called for such purpose for
which notice shall have been given to the holders of the Series E Preferred
Stock): (i) authorize or issue any Senior Stock or Parity Stock or any
securities convertible or exchangeable into such securities, other than (x) the
Series E Preferred Stock Warrants, (y) Series E Preferred Stock issued upon
exercise of such Series E Preferred Stock Warrants, or (z) Series E Preferred
Stock issued as payment in kind of any accrued but unpaid dividends on the
Series E Preferred Stock; (ii) enter into any agreement or amendment with
respect to any outstanding options, rights or warrants to purchase capital stock
of the Company that reduces or that has the effect of reducing the per share
exercise price for any such options, rights or warrants; (iii) authorize or
issue any debt securities of the Company, other than debt under the existing
credit facilities in effect as of March 12, 2004 or the replacement thereof on
substantially similar terms, and any additional debt up to $1,000,000 in the
aggregate issued or incurred in the ordinary course of business (excluding trade
payables incurred in the ordinary course of business); (iv) purchase, redeem, or
otherwise acquire any of the Company's capital stock, other than the redemption
of the Series E Preferred Stock; (v) enter into any acquisition, sale, merger,
joint venture, consolidation or reorganization involving the Company or any of
its subsidiaries; (vi) sell or lease assets of the Company or any of its
subsidiaries, except in the ordinary course of business; (vii) declare or pay
any cash dividends or make any distributions on any of its capital stock, other
than on the Series E Preferred Stock; (viii) authorize the payment or pay to any
individual employee of the Company of cash compensation in excess of $500,000
per annum; or (ix) enter into any transactions (or series of transactions),
including loans, with any employee, officer or director of the Company or to or
with his, her or its Affiliates or family members (other than with respect to
payment of compensation to actual full-time employees in
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the ordinary course of business) involving $50,000 or more per year individually
or $250,000 or more per year in the aggregate.
(c) For so long as the aggregate number of issued and outstanding
shares of Series E Preferred Stock is at least 130,000 shares (as adjusted for
stock splits, stock combinations, recapitalizations and the like), the Company
shall not, without the affirmative consent or approval of the holders of record
of shares of Series E Preferred Stock representing at least 66-2/3% of the
aggregate number of shares of Series E Preferred Stock then outstanding, voting
as a single class to the exclusion of all other classes of the Company's capital
stock (such consent or approval to be given by written consent in lieu of a
meeting if allowable under the Company's Certificate of Incorporation or by vote
at a meeting called for such purpose for which notice shall have been given to
the holders of the Series E Preferred Stock): (i) terminate or newly appoint the
chief executive officer of the Company; (ii) approve any annual capital budget
if such budget provides for annual capital expenditures by the Company and its
subsidiaries in excess of $1,000,000 in the aggregate in any year; or (iii)
approve the incurrence of any single capital expenditure (or series of related
capital expenditures) in excess of $500,000; provided, however, the Company
shall have the right to make any reasonable emergency capital expense that the
Board of Directors determines is necessary to maintain operations as a result of
a catastrophic event.
2.6 Successors. The provisions of this Agreement shall be binding
upon the successor in interest to any Holder of shares of the Series E Preferred
Stock. The Company shall not permit the transfer of any shares of the Series E
Preferred Stock on its books or issue a new certificate representing any shares
of the Series E Preferred Stock unless and until the Person to whom such shares
of Series E Preferred Stock are to be transferred shall have executed a written
agreement, substantially in the form of this Agreement, pursuant to which such
Person becomes a party to this Agreement and agrees to be bound by all the
provisions hereof as if such Person were a Holder hereunder; provided, however,
that such successor Persons shall not have any rights to designate any Directors
pursuant to Section 2.1(a) or Section 2.1(b) nor any rights under Section 2.3
(except in the case of Section 2.1(a) or Section 2.1(b) or Section 2.3 if such
Person is an Affiliate of a Holder having rights thereunder).
2.7 Aggregation. For purposes of determining the number of shares
of Series E Preferred Stock held (or converted) by a Holder pursuant to this
Article II, the number of shares of Series E Preferred Stock held (or converted)
by all of such Holder's Affiliates shall be aggregated with the number of shares
of Series E Preferred Stock held (or converted) by such Holder.
ARTICLE III
GENERAL PROVISIONS
3.1 Legend on Share Certificates.
All certificates for shares of Series E Preferred Stock that are
subject to the terms and provisions of Article 2, in addition to such other
legends as may be required by law, shall bear the legend set forth in Section
7.08 of the Redemption and Exchange Agreement (and any other
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legend required by any other agreement contemplated by the Redemption and
Exchange Agreement), as applicable, and the following legend:
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE ALSO SUBJECT TO
CERTAIN REQUIREMENTS AS TO VOTING CONTAINED IN THE AMENDED AND
RESTATED STOCKHOLDERS AGREEMENT, DATED AS OF MARCH 19, 2004
(AS SUCH AGREEMENT MAY BE AMENDED FROM TIME TO TIME), BETWEEN
THE COMPANY AND CERTAIN STOCKHOLDERS, A COPY OF WHICH IS ON
FILE WITH THE SECRETARY OF THE COMPANY.
(B) Upon the termination of this Agreement, each Holder shall be
entitled to receive, in exchange for any certificate bearing the legend
described in this Section 3.1(a), a certificate that no longer bears the legend
set forth in this Section 3.1(a), unless the Company shall have sooner
determined (based upon advice of legal counsel) that such legend is no longer
required by law.
3.2 Injunctive Relief. It is acknowledged that it is impossible to
measure in money the damages that would be suffered if the parties fail to
comply with the obligations imposed on them by this Agreement and that, in the
event of any such failure, an aggrieved Person will be irreparably damaged and
will not have an adequate remedy at law. Any such Person shall, therefore, be
entitled to injunctive relief and/or specific performance to enforce such
obligations, and if any action should be brought in equity to enforce any of
such provisions of this Agreement, none of the parties hereto shall raise the
defense that there is an adequate remedy at law.
3.3 Further Assurances. Each party hereto shall do and perform or
cause to be done and performed all such further acts and things and shall
execute and deliver all such other agreements, certificates, instruments and
documents as any other party hereto reasonably may request in order to carry out
the intent and accomplish the purposes of this Agreement and the consummation of
the transactions contemplated hereby.
3.4 Governing Law. Except as to matters governed by the General
Corporation Law of the State of Delaware and decisions thereunder of the
Delaware courts applicable to Delaware corporations, which shall be governed by
such laws and decisions, this Agreement shall be construed and enforced in
accordance with, and the rights of the parties shall be governed by, the laws of
the State of Illinois.
3.5 Entire Agreement; Amendment; Waiver. Effective as of the date
hereof, this Agreement amends and restates in its entirety the Prior Agreement.
This Agreement is intended by the parties as a final expression of their
agreement and a complete and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject matter contained
herein. There are no restrictions, promises, warranties or undertakings other
than those set forth or referred to herein or therein. This Agreement supersedes
all prior agreements and understandings between the parties with respect to such
subject matter. This Agreement may not be amended or supplemented except by an
instrument or counterparts thereof in writing signed
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by the Holders and by the Company. Any such amendment so approved shall be
binding on all Holders and all other Persons bound by this Agreement. No waiver
of any term or provision shall be effective unless in writing signed by the
party to be charged.
3.6 Binding Effect. This Agreement shall be binding on and inure
to the benefit of the parties hereto and, subject to the terms and provisions
hereof, their respective legal representatives, successors and assigns.
3.7 Invalidity of Provision. The invalidity or unenforceability of
any provision of this Agreement in any jurisdiction shall not affect the
validity or enforceability of the remainder of this Agreement in that
jurisdiction or the validity or enforceability of this Agreement, including that
provision, in any other jurisdiction.
3.8 Counterparts. This Agreement may be executed in two or more
counterparts, all of which shall be deemed but one and the same instrument and
each of which shall be deemed an original, and it shall not be necessary in
making proof of this Agreement to produce or account for more than one such
counterpart for each of the parties hereto. Delivery by facsimile by any of the
parties hereto of an executed counterpart of this Agreement shall be effective
as an original executed counterpart hereof and shall be deemed a representation
that an original executed counterpart hereof will be delivered.
3.9 Notices. All notices, consents and other communications under
this Agreement shall be in writing and shall be deemed to have been duly given
when (a) delivered by hand, (b) sent by telecopier (with receipt confirmed),
provided that a copy is mailed by certified or registered mail, return receipt
requested, or (c) when received by the addressee, if sent by Express Mail,
Federal Express or other express delivery service (receipt requested), in each
case to the appropriate addresses and telecopier numbers set forth below (or to
such other addresses and telecopier numbers as a party may designate as to
itself by notice to the other parties):
(i) If to the Company:
0000 Xxxxxxxxx Xxxx
Xxx Xxxxx Xxxxxxx, XX 00000-0000
Fax No. 000-000-0000
Attention: General Counsel
(ii) If to a Holder: at the address set forth in
the Redemption and Exchange Agreement.
3.10 Headings. The descriptive headings of the several paragraphs
of this Agreement are inserted for convenience only and do not constitute part
of this Agreement.
3.11 Representations and Warranties. Each party to this Agreement
represents and warrants to the other parties to this Agreement that (i) all
action on the part of such party necessary for the authorization, execution,
delivery and performance of this Agreement has been taken and (ii) this
Agreement is the legally valid and binding obligation of such party, enforceable
against such party in accordance with its terms, subject to applicable
bankruptcy,
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insolvency, reorganization, moratorium, and similar laws affecting creditors'
rights and remedies generally and to equitable principles relating to
enforceability.
3.12 No Conflict. The Company shall not enter into any agreement
that is inconsistent with or that would in any way interfere with the rights of
the parties hereto. The Company shall ensure that its Certificate of
Incorporation and By-laws do not at any time conflict with the provisions of
this Agreement then in effect. In the event that any such conflict should
nevertheless exist, the provisions of this Agreement shall control to the extent
permitted under applicable law.
3.13 Unlimited Parties. All parties to this Agreement hereby
acknowledge and agree that:
(a) Nothing in this Agreement shall in any way limit or
be construed as limiting the ability of a Holder or its Affiliates or
Directors or Board Observers designated by such Holders (collectively,
the "Unlimited Parties"), and such Unlimited Parties may, in the past,
present or future, carry out and engage in any and all activities
associated with their businesses, including, without limitation,
underwriting (including, without limitation, underwriting investments
of private equity of the Unlimited Parties or other persons in the
business of designing, developing, manufacturing or marketing of power
conservation and reliability systems, including, without limitation,
direct competitors of the Company), trading, brokerage, financing,
derivatives, foreign exchange, asset management activities and
principal investment, and for the avoidance of doubt and without
limiting the generality of the foregoing, the Unlimited Parties may:
(i) purchase and hold long or short positions, otherwise make
investments, trade or otherwise effect transactions, for their own
account or the account of their customers, in the debt or equity
securities or loans of persons which may directly or indirectly compete
with any or all of the business of the Company (the "Other Companies");
and (ii) provide financial advice to the Other Companies; and
(b) The Unlimited Parties may have information that may
be of interest or value to the Company ("Information") regarding
various matters including without limitation, (i) an Unlimited Party's
products, plans, services and technology, and plan and strategies
relating thereto, (ii) current and future investments an Unlimited
Party has made, may make, may consider or may become aware of with
respect to other companies and other products, services and technology,
including without limitation, Other Companies, and (iii) developments
with respect to the technologies, products and services, and plans and
strategies relating thereto, including, without limitation, Other
Companies. The Company agrees that the Unlimited Parties shall have no
duty to disclose any Information to the Company or permit the Company
to participate in any investments or transactions based on any
Information, or to otherwise take advantage of any opportunity that may
be of interest to the Company if it were aware of such Information.
[Balance of page intentionally left blank; signature pages follow.]
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IN WITNESS WHEREOF, the parties hereto have executed this Amended and
Restated Stockholders Agreement as of the day and year first above written.
COMPANY HOLDERS
ELECTRIC CITY CORP., NEWCOURT CAPITAL USA INC.,
a Delaware corporation a Delaware corporation
By: _____________________________ By: _______________________________
Name: Xxxx Xxxxxx Name: _______________________________
Title: Chief Executive Officer Title: _______________________________
XXXXXX XXXXXXX XXXX XXXXXX
EQUITY FUNDING, INC., a Delaware
corporation
By: _______________________________
Name: _______________________________
Title: _______________________________
ORIGINATORS INVESTMENT PLAN,
L.P., a Delaware limited partnership
By: _______________________________
Name: _______________________________
Title: _______________________________
CINERGY VENTURES II, LLC, a
Delaware limited liability company
By: _______________________________
Name: _______________________________
Title: _______________________________
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LEAF MOUNTAIN COMPANY, LLC, an
Illinois limited liability company
By: _______________________________
Name: _______________________________
Title: _______________________________
AUGUSTINE FUND LP, an Illinois limited
partnership
By: _______________________________
Name: _______________________________
Title: _______________________________
TECHNOLOGY TRANSFORMATION
VENTURE FUND, LP, a Delaware limited
partnership
By: _______________________________
Name: _______________________________
Title: _______________________________
______________________________________
XXXXXXX X. XXXXXXX, an individual
______________________________________
XXXXX X. XXXXXXX, an individual
______________________________________
XXXX XXXXXXX, an individual
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XXXX XXXXXX HURVIS REVOCABLE
TRUST, an Illinois trust
By: _______________________________
Name: _______________________________
Title: _______________________________
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