Exhibit 4.20
CONSENT AND AMENDMENT
This Consent and Amendment (this "CONSENT") is dated as of the 4th day of
June, 2002, and is made by and among by and among Electric City Corp., a
Delaware corporation (the "COMPANY"), Newcourt Capital USA Inc., a Delaware
corporation "NEWCOURT"), EP Power Finance L.L.C., a Delaware limited liability
company ("EP POWER"), Xxxxxx Xxxxxxx Xxxx Xxxxxx Equity Funding, Inc., a
Delaware corporation ("MSDW"), Originators Investment Plan, L.P., a Delaware
limited partnership ("OIP"), Duke Capital Partners, LLC, a Delaware limited
liability company ("DUKE"), Leaf Mountain Company, LLC, an Illinois limited
liability company ("LEAF MOUNTAIN"), Newcourt Capital Securities, Inc., a
Delaware corporation (the "PLACEMENT AGENT") and Xxxxxxx X. Xxxxxxx, an
individual ("XXXXXXX").
W I T N E S S E T H:
WHEREAS, Newcourt, EP Power, MSDW, OIP, Duke (collectively, the "INITIAL
SERIES A HOLDERS"; the Initial Series A Holders and Leaf Mountain are
collectively referred to herein as the "SERIES A HOLDERS") and the Company are
parties to that certain Securities Purchase Agreement, dated as of July 31, 2001
(as it may be amended from time to time, the "SECURITIES PURCHASE AGREEMENT"),
whereby the Company sold and the Initial Series A Holders bought 1,600,000
shares of the Company's Series A Convertible Preferred Stock, par value $0.01
per share (the "SERIES A PREFERRED STOCK"), together with warrants to purchase
400,000 additional shares of the Series A Preferred Stock (the "INITIAL SERIES A
PREFERRED STOCK WARRANTS"), 320,868 shares of the Company's common stock, par
value $0.0001 per share (the "COMMON STOCK") and warrants to purchase 3,000,000
additional shares of the Common Stock (the "INITIAL SERIES A HOLDERS' COMMON
STOCK WARRANTS"); and
WHEREAS, in connection with the transactions contemplated by the Securities
Purchase Agreement, the Company issued to the Placement Agent warrants to
purchase 3,314,830 shares of the Common Stock (the "PLACEMENT AGENT WARRANTS")
WHEREAS, Leaf Mountain and the Company are parties to that certain
Securities Purchase Agreement dated as of November 29, 2001 (as it may be
amended from time to time, the "ADDITIONAL SECURITIES PURCHASE AGREEMENT"),
whereby the Company sold and Leaf Mountain bought 300,000 shares of the Series A
Preferred Stock, together with warrants to purchase 75,000 additional shares of
the Series A Preferred Stock (the "LEAF MOUNTAIN SERIES A PREFERRED STOCK
WARRANTS"), 45, 122 shares of the Common Stock and warrants to purchase 421,875
additional shares of the Common Stock (the "LEAF MOUNTAIN COMMON STOCK
WARRANTS"); and
WHEREAS, Xxxxxxx and the Company are parties to that certain Securities
Purchase Agreement dated as of May 31, 2002 (as it may be amended from time to
time, the "SERIES C SECURITIES PURCHASE AGREEMENT"), whereby the Company has
agreed to issue and sell to Xxxxxxx and Xxxxxxx has agreed to purchase from the
Company 200,000 shares of the Company's Series C Convertible Preferred Stock,
par value $0.01 per share (the "SERIES C PREFERRED STOCK"), together with
warrants to purchase 50,000 additional shares of the Series C Preferred Stock
(the
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"SERIES C PREFERRED STOCK WARRANTS"), 30,082 shares of the Common Stock, and
warrants to purchase 281,250 additional shares of the Common Stock (the "XXXXXXX
COMMON STOCK WARRANTS") (the sale by the Company to Xxxxxxx of such shares of
Series C Preferred Stock and Common Stock, Series C Preferred Stock Warrants and
Xxxxxxx Common Stock Warrants, and the consummation of the other transactions
contemplated by the Series C Securities Purchase Agreement, are collectively
referred to herein as the "SERIES C TRANSACTIONS"); and
WHEREAS, it is a condition precedent to the obligation of the Company and
Xxxxxxx to consummation of the Series C Transactions that the parties hereto
enter into this Consent and the Series A Holders and the Placement Agent desire
to induce Xxxxxxx to purchase and the Company to sell such securities and to
consummate the Series C Transactions and accordingly are willing to enter into
this Consent;
NOW, THEREFORE, in consideration of the premises and mutual agreements
contained herein, the parties hereto hereby agree as follows:
1. CONSENTS AND WAIVERS.
(a) Each of the Initial Series A Holders hereby (i) consents to the
Company and Xxxxxxx entering into the Series C Securities Purchase Agreement and
to the consummation of the transactions contemplated thereby; (ii) waives any
pre-emptive rights of such Initial Series A Holder in respect to the Series C
Transactions; (iii) waives any default under the Securities Purchase Agreement,
the Initial Series A Preferred Stock Warrants, the Initial Series A Holders'
Common Stock Warrants and the other "Transaction Documents" (as defined in the
Securities Purchase Agreement) arising from consummation of the Series C
Transactions or by reason thereof; and (iv) agrees that such event shall not be
deemed to give rise to any adjustments pursuant to Section 2 of the Initial
Series A Preferred Stock Warrants or Section 2 of the Initial Series A Holders'
Common Stock Warrants.
(b) The Placement Agent hereby (i) consents to the Company and Xxxxxxx
entering into the Series C Securities Purchase Agreement and to the consummation
of the transactions contemplated thereby; (ii) waives any pre-emptive rights of
the Placement Agent in respect to the Series C Transactions; (iii) waives any
default under the Placement Agent Warrants arising from consummation of the
Series C Transactions or by reason thereof; and (iv) agrees that such event
shall not be deemed to give rise to any adjustments pursuant to Section 2 of
Placement Agent Warrants.
(c) Leaf Mountain hereby (i) consents to the Company and Xxxxxxx entering
into the Series C Securities Purchase Agreement and to the consummation of the
transactions contemplated thereby; (ii) waives any pre-emptive rights of Leaf
Mountain in respect to the Series C Transactions; (iii) waives any default under
the Additional Securities Purchase Agreement, the Leaf Mountain Series A
Preferred Stock Warrants, the Leaf Mountain Common Stock Warrants and the other
"Transaction Documents" (as defined in the Additional Securities Purchase
Agreement) arising from consummation of the Series C Transactions or by reason
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thereof; and (iv) agrees that such event shall not be deemed to give rise to any
adjustments pursuant to Section 2 of the Leaf Mountain Series A Preferred Stock
Warrants or Section 2 of the Leaf Mountain Common Stock Warrants.
2. AMENDMENT OF EXISTING INVESTORS' COMMON STOCK WARRANTS. Collectively,
the Initial Series A Holders' Common Stock Warrants, the Placement Agent
Warrants and the Leaf Mountain Common Stock Warrants are referred to herein as
the "EXISTING INVESTORS' COMMON STOCK WARRANTS". Each of the Series A Holders,
the Placement Agent and the Company hereby agree that, effective upon closing
under the Series C Securities Purchase Agreement, the respective Existing
Investors' Common Stock Warrants of each of the Series A Holders and the
Placement Agent shall each be amended as follows:
(a) Section 2(a)(vi) shall be amended and restated in its entirety as
follows:
(vi) ADJUSTMENT TO DETERMINATION OF EXERCISE PRICE. When making
the calculations and determinations described in this Section 2(a),
there shall not be taken into account (A) the issuance of Common Stock
upon the exercise of options or warrants outstanding on the Issue Date
or issued pursuant to the Additional Securities Purchase Agreement or
the Series C Securities Purchase Agreement, (B) the issuance of Common
Stock upon the conversion of the Series A Preferred Stock of the
Company, (C) the issuance of Common Stock upon the conversion of the
Series C Preferred Stock of the Company, (D) the issuance of Common
Stock upon exercise of the Warrants evidenced by this Warrant
Certificate, any other warrants to purchase Common Stock issued
pursuant to the Securities Purchase Agreement, or the Placement Agent
Warrants (as defined in the Securities Purchase Agreement), (E) the
issuance of Series A Preferred Stock upon exercise of the Series A
Preferred Stock Warrants or as dividends upon shares of the Series A
Preferred Stock, (F) the issuance of Series C Preferred Stock upon
exercise of the Series C Preferred Stock Warrants or as dividends upon
shares of the Series C Preferred Stock, (G) the issuance of 320,868
shares of Common Stock pursuant to the Securities Purchase Agreement,
(H) the issuance of 45,122 shares of Common Stock pursuant to the
Additional Securities Purchase Agreement, and (I) the issuance of
30,082 shares of Common Stock pursuant to the Series C Securities
Purchase Agreement.
(b) Section 2(b) shall be amended and restated in its entirety as follows:
(b) SUBDIVISION; COMBINATION OF STOCK OR STOCK DIVIDENDS. In
case the Company shall at any time subdivide its outstanding shares of
Common Stock into a greater number of shares, by split or otherwise,
or issue additional shares of Common Stock as a dividend (other than
(i) a dividend in accordance with Section 3 of the Series A
Certificate of Designations in respect of the Series A Preferred
Stock, or (ii) a dividend in accordance with Section 3 of the Series C
Certificate of Designations in respect of the Series C Preferred
Stock), or make
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any other distribution upon any class or series of stock payable in
shares of Common Stock or Convertible Securities, the Exercise Price
in effect immediately prior to such subdivision shall be
proportionately reduced and, conversely, in case the outstanding
shares of Common Stock of the Company shall be combined into a smaller
number of shares, the Exercise Price in effect immediately prior to
such combination shall be proportionately increased.
(c) Section 13 shall be amended by the addition thereto of the following
additional definitions:
"ADDITIONAL SECURITIES PURCHASE AGREEMENT" means that certain
Securities Purchase Agreement, dated November 29, 2001, by the Company and
Leaf Mountain Company, an Illinois limited liability company, as the same
may be amended, modified or otherwise supplemented from time to time in
accordance with its terms with the consent of the Holder.
"SERIES A 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 A Convertible Preferred Stock of the
Company, as filed with the Secretary of State of Delaware.
"SERIES A INVESTORS" means, collectively, Newcourt Capital USA Inc., a
Delaware corporation, EP Power Finance L.L.C., a Delaware limited liability
company, Xxxxxx Xxxxxxx Xxxx Xxxxxx Equity Funding, Inc., a Delaware
corporation, Originators Investment Plan, L.P., a Delaware limited
partnership, Duke Capital Partners, LLC, a Delaware limited liability
company, and Leaf Mountain Company, LLC, an Illinois limited liability
company. "SERIES A INVESTOR" means any of such entities.
"SERIES A PREFERRED STOCK" means shares of the Company's Series A
Convertible Preferred Stock, $0.01 par value per share, issued pursuant to
the Securities Purchase Agreement or the Additional Securities Purchase
Agreement, or issued pursuant to the Series A Preferred Stock Warrants, or
issued as dividends upon shares of the Series A Preferred Stock issued
pursuant to the Securities Purchase Agreement or the Additional Securities
Purchase Agreement or the Series A Preferred Stock Warrants.
"SERIES A PREFERRED STOCK WARRANTS" means those certain warrant
certificates to purchase shares of Series A Preferred Stock which have been
issued by the Company to the Series A Investors pursuant to the Securities
Purchase Agreement or the Additional Securities Purchase Agreement, as such
warrant certificates may be amended or modified with the consent of the
Holder and in effect from time to time.
"SERIES C 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 C Convertible
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Preferred Stock of the Company, as filed with the Secretary of State of
Delaware.
"SERIES C PREFERRED STOCK" means shares of the Company's Series C
Convertible Preferred Stock, $0.01 par value per share, issued pursuant to
the Series C Securities Purchase Agreement, or issued pursuant to the
Series C Preferred Stock Warrants, or issued as dividends upon shares of
the Series C Preferred Stock issued pursuant to the Series C Securities
Purchase Agreement or the Series C Preferred Stock Warrants.
"SERIES C PREFERRED STOCK WARRANTS" means those certain warrant
certificates to purchase shares of Series C Preferred Stock which have been
issued by the Company to Xxxxxxx X. Xxxxxxx pursuant to the Series C
Securities Purchase Agreement, as such warrant certificates may be amended
or modified with the consent of the Holder and in effect from time to time.
"SERIES C SECURITIES PURCHASE AGREEMENT" means that certain Securities
Purchase Agreement, dated May 31, 2002, by the Company and Xxxxxxx X.
Xxxxxxx, as the same may be amended, modified or otherwise supplemented
from time to time with the consent of the Holder.
3. ATTACHING OF CONSENT TO EXISTING INVESTORS' COMMON STOCK WARRANTS.
Each of the Series A Holders and the Placement Agent hereby agrees that a copy
of this Consent shall be attached to and maintained with the Existing Investors'
Common Stock Warrants held by such Series A Holder or the Placement Agent, as
applicable and, upon request therefore, the Company shall be provided with
evidence of such action having been taken.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized 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: /s/ Xxxx Xxxxxx By: /s/ Xxx X. Xxxxxx
------------------------------- ---------------------------------
Name: Xxxx Xxxxxx Name: Xxx X. Xxxxxx
Title: Chief Executive Officer -------------------------------
Title: Senior Vice President
------------------------------
EP POWER FINANCE, L.L.C.,
a Delaware limited liability company
By: /s/ Gar Seifullin
---------------------------------
Name: Gar Seifullin
-------------------------------
Title: Managing Director
------------------------------
XXXXXX XXXXXXX XXXX XXXXXX
EQUITY FUNDING, INC., a Delaware
corporation
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxx
-------------------------------
Title: Vice President
------------------------------
ORIGINATORS INVESTMENT PLAN,
L.P., a Delaware limited partnership
By: MSDW OIP Investors, Inc., its
general partner
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxx
-------------------------------
Title: Vice President
------------------------------
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DUKE CAPITAL PARTNERS, LLC,
a Delaware limited liability company
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxx
-------------------------------
Title: EVP & Managing Director
------------------------------
NEWCOURT CAPITAL SECURITIES,
INC., a Delaware corporation
By: /s/ Xxx X. Xxxxxx
---------------------------------
Name: Xxx X. Xxxxxx
-------------------------------
Title: Managing Director
------------------------------
LEAF MOUNTAIN COMPANY, LLC,
an Illinois limited liability company
By: /s/ Xxxx X. Xxxxxxx
---------------------------------
Name: Xxxx X. Xxxxxxx
-------------------------------
Title: Manager
------------------------------
/s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Xxxxxxx X. Xxxxxxx
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