Exhibit 4.6
AMENDED AND RESTATED INVESTOR RIGHTS
AGREEMENT
This Amended and
Restated Investor Rights 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 each of the parties set forth on
Schedule I attached hereto from time to time
(collectively, the “ Investors ” and, together
with the Company, the “ Parties ”) and shall
become effective on the Closing Date (as defined in the Redemption
and Exchange Agreement (as defined below)).
WITNESSETH
WHEREAS, each of
the Investors (other than CIT Capital Securities Inc.) 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 of shares of the Company’s Common
Stock; and
WHEREAS, each of
the Investors is a holder of Common Stock Warrants (as herein
defined); and certain of the Investors are also holders of certain
warrants to purchase additional shares of Series D Preferred
Stock; and
WHEREAS, the
Parties have previously entered into that certain Investor Rights
Agreement dated as of July 31, 2001, as amended (the “
Prior Agreement ”);
WHEREAS, the
Company and each of the Investors (other than CIT Capital
Securities Inc.) 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 Investors, and certain
Investors 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 such Investors to exchange such
securities pursuant to the Redemption and Exchange Agreement that
the parties hereto enter into this Agreement; and
WHEREAS, the
Parties 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 agree as follows:
ARTICLE I
DEFINITIONS
1.1
Definitions . 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 respective
meanings, such meanings to be equally applicable to the singular
and plural forms thereof:
“
Additonal Securities Purchase Agreement ” means the
Securities Purchase Agreement dated as of November 29, 2001
between the Company and Leaf Mountain, as amended and in effect
from time to time.
“
Agreement ” shall have the meaning set forth in the
preamble of this Agreement.
“
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 other governmental authority at the time
administering the Securities Act.
“
Common Stock ” means and includes the Company’s
authorized common stock, par value $0.0001 per share.
“
Common Stock Warrants ” means, collectively, the
warrants to purchase Common Stock which are listed on
Schedule II to this Agreement, and any warrants which
may hereafter be issued by the Company pursuant to transfer,
partial exercise or subdivision of such warrants as provided
therein.
“
Company ” shall have the meaning set forth in the
preamble of this Agreement.
“
Eligible Securities ” means (i) the shares of
Common Stock issued or issuable upon the conversion of the
Series E Preferred Stock issued or issuable pursuant to the
Redemption and Exchange Agreement; (ii) the shares of Common
Stock issued or issuable upon exercise of the Series E
Preferred Stock Warrants and conversion of the Series E
Preferred Stock issued or issuable pursuant to such exercise;
(iii) the shares of Common Stock issued or issuable pursuant
to conversion of any shares of Series E Preferred Stock issued
as dividends in respect of outstanding shares of Series E
Preferred Stock; (iv) the shares of Common Stock issued or
issuable upon exercise of the Common Stock Warrants; (v) the shares
of Common Stock issued pursuant to the Securities Purchase
Agreement, the Additional Securities Purchase Agreement, the
Series C Securities Purchase Agreement and the Series D
Securities Purchase Agreement; (vi) the shares of Common Stock
issued prior to the Closing Date pursuant to conversion of shares
of Series A Preferred; and (vii) any other shares of Common
Stock issued as (or issuable upon the conversion or exercise of any
warrant, right or other security that is issued as) a dividend or
other distribution with respect to or in exchange for or in
replacement of, the shares described in clauses (i), (ii), (iii),
(iv), (v), (vi) and this clause
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(vii); provided , however , that
the foregoing definition shall exclude in all cases any Eligible
Securities sold by a Holder in a transaction in which its rights
under this Agreement are not also assigned; and provided
further that any Eligible Securities sold pursuant to
Rule 144 or sold in a registered public offering that has been
declared effective shall no longer be Eligible Securities
hereunder.
“
Exchange Act ” means the Securities Exchange Act of
1934, as amended, and any similar or successor federal statute, and
the rules and regulations of the Commission thereunder, all as the
same may be in effect at the time.
“
Existing Preferred Stock ” shall have the meaning set
forth in the first WHEREAS clause of this Agreement.
“
Fully-Exercising Investor ” shall have the meaning set
forth in Section 3.1 hereof.
“
Holder ” means a registered holder of record of
outstanding Eligible Securities or securities convertible into or
exercisable for, directly or indirectly, Eligible
Securities.
“
Investors ” shall have the meaning set forth in the
preamble hereto.
“
Leaf Mountain ” means Leaf Mountain Company, LLC, an
Illinois limited liability company.
“
Notice ” shall have the meaning set forth in
Section 3.1 hereof.
“
Parties ” shall have the meaning set forth in the
preamble hereto.
“
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.
“
Piggyback Request ” shall have the meaning set forth
in Section 2.2(a) hereof.
“
Qualified Primary Offering ” means a firmly
underwritten primary registered public offering of the Common Stock
by the Company that raises at least $35 million in gross
proceeds at a price of at least $5.00 per share (as adjusted for
stock splits, stock combinations, recapitalizations and the
like).
“
Redemption and Exchange Agreement ” shall have the
meaning set forth in the fourth WHEREAS clause of this
Agreement.
“
Registration Request ” shall have the meaning set
forth in Section 2.1 hereof.
“
Requesting Holder ” shall have the meaning set forth
in Section 2.1 hereof.
“
Rule 144 ” means Rule 144 promulgated by the
Commission under the Securities Act, as in effect from time to
time.
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“
Securities Act ” means the Securities Act of 1933, as
amended, and any similar or successor federal statute, and the
rules and regulations of the Commission thereunder, all as the same
may be in effect at the time.
“
Securities Purchase Agreement ” means that certain
Securities Purchase Agreement, dated as of July 31, 2001, by
and among the Company, certain of the Investors and certain other
Persons, as amended and in effect from time to time.
“
Series C Securities Purchase Agreement ” means
that certain Securities Purchase Agreement, dated as of
May 31, 2002, between the Company and Richard Kiphart, as
amended and in effect from time to time.
“
Series D Securities Purchase Agreement ” means
that certain Securities Purchase Agreement, dated as of
June 27, 2003, by and among the Company and certain of the
Investors, as amended and in effect from time to time.
“
Series E Preferred Stock ” shall have the meaning
set forth in the fourth WHEREAS clause of this
Agreement.
“
Series E Preferred Stock Warrants ” means the
warrants to purchase shares of Series E Preferred Stock issued
to certain of the Investors pursuant to the Redemption and Exchange
Agreement.
“
Shares ” shall have the meaning set forth in
Section 3.1 hereof.
ARTICLE II
REGISTRATION RIGHTS
2.1
Requested Registration .
(a) At
any time after the Closing Date, Holders holding at least a
majority of the shares constituting Eligible Securities may deliver
to the Company a written request that the Company file and use its
best efforts to cause to become effective a registration statement
under the Securities Act with respect to such number of the
Eligible Securities owned by the Holders as shall be specified in
such request (a “ Registration Request ”),
including, if specified in the Registration Request, a
“shelf” registration statement on Form S-3 (or if Form
S-3 is not then available, Form S-1 or such other form that the
Company is eligible to use with respect to the Eligible Securities)
for an offering to be made on a delayed or continuous basis
pursuant to Rule 415 under the Securities Act; provided
, however , that the Company shall not be obligated to
effect any such registration pursuant to this
Section 2.1 if the aggregate value on the date of the
Registration Request of the Eligible Securities to be registered
thereon is less than $5,000,000. The Company shall not be required
to file and use its best efforts to cause to become effective,
pursuant to a Registration Request under this
Section 2.1 more than four (4) registration
statements at the demand of the Holders. The party (or parties)
delivering a Registration Request is hereinafter referred to as the
“ Requesting Holder .”
(b) As
soon as practicable following the receipt of a Registration
Request, the Company will use its best efforts to register under
the Securities Act, for public sale in
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accordance with the method of
disposition specified in such Registration Request, the number of
shares of Eligible Securities specified in such Registration
Request (and the number of Eligible Securities specified in all
notices received from Holders within 20 business days after notice
of the Registration Request has been delivered pursuant to
Section 2.2 hereof). The Company shall also be entitled to
include in any registration statement filed pursuant to a
Registration Request, for sale in accordance with the method of
disposition specified in such Registration Request, such number of
shares of Common Stock as the Company shall desire to sell for its
own account or for the account of other security holders or both.
If the method of sale designated is an underwritten public
offering, the managing underwriter or underwriters must be
reasonably acceptable to both the Requesting Holder (or the holders
of a majority of the shares of Eligible Securities held by all
parties comprising the Requesting Holder if more than one party is
the Requesting Holder) and the Company, which acceptance shall not
be unreasonably withheld. Notwithstanding the foregoing provisions
of this Section 2.1(b) , to the extent that, in the
opinion of the underwriter or underwriters (if the method of
disposition shall be an underwritten public offering), marketing
considerations require the reduction of the number of shares of
Common Stock covered by any such registration, the number of shares
of Common Stock to be registered and sold pursuant to such
registration shall be reduced as follows:
(i) first,
the number of shares of Common Stock to be registered on behalf of
the Company shall be reduced (to zero, if necessary);
and
(ii) second,
the number of shares of Common Stock to be registered on behalf of
Persons other than the Holders and their Affiliates, if any, shall
be reduced (to zero, if necessary) pro rata according to the number
of shares of restricted Common Stock held by each; and
(iii) third,
the number of shares of Eligible Securities to be registered on
behalf of the Holders and their Affiliates shall be reduced pro
rata according to the number of shares of Eligible Securities held
by each.
(c) Notwithstanding
anything to the contrary contained herein, the exercise by any
Holder of any right hereunder with respect to shares of Eligible
Securities shall not affect or diminish any other rights of such
Holder hereunder with respect to any other securities of the
Company held by such Holder.
(d) In
addition to any rights Leaf Mountain may have under clause (a)
above, while it is the holders of not less than an aggregate of
750,000 shares of the Common Stock (calculated assuming the
exercise of all rights, options, warrants to purchase Common Stock
or securities convertible or exchangeable for shares of Common
Stock), may deliver to the Company, on a single occasion, a
Registration Request that the Company file and use its best efforts
to cause to become effective, a registration statement under the
Securities Act with respect to Eligible Securities comprising not
less than 750,000 shares of Common Stock, on the terms and subject
to the other conditions applicable to any Registration Request
under this Section. Within forty-eight (48) hours of receipt
of such Registration Request, the Company shall provide written
notice to all of holders of Series E Preferred Stock of such
Registration Request.
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2.2
Piggyback Registration .
(a) If
the Company at any time after the Closing Date proposes to register
Common Stock under the Securities Act for sale to the public
(including registrations pursuant to Section 2.1 hereof),
whether for its own account or for the account of other security
holders or both (except registration statements on Form S-8, S-4 or
another form not available for registering the Eligible Securities
for sale to the public), each such time it will give written notice
to all Holders of its intention to do so. Upon the written request
of any Holder (a “ Piggyback Request ”), given
within 20 business days after receipt of any such notice, to
register any of its Eligible Securities, the Company shall, subject
to Section 2.2(b) below, cause the Eligible Securities
as to which registration shall have been so requested to be covered
by the registration statement proposed to be filed by the
Company.
(b) In
the event that any registration statement described in this
Section 2.2 shall relate, in whole or in part, to an
underwritten public offering of shares of Common Stock, the
Eligible Securities to be registered must be sold through the same
underwriters as have been selected by the Company (or agreed to
pursuant to Section 2.1 hereof, if applicable).
Otherwise, the method of distribution of the Eligible Securities to
be sold by any Holder making a Piggyback Request shall be as
specified therein. Except with respect to all Holders (and their
respective Affiliates) in the case of a registration statement
filed pursuant to a Registration Request under
Section 2.1 hereof, the number of shares of Common
Stock to be included in such registration statement on account of
any Person may be reduced if and to the extent that the underwriter
or underwriters shall be of the opinion that such inclusion would
materially adversely affect the marketing of the total number of
shares of Common Stock proposed to be sold, and the number of
shares to be registered and sold by each Person (other than the
Company) shall be reduced pro rata according to the relative number
of fully diluted shares of Common Stock owned by such Person.
Notwithstanding the foregoing provisions of this
Section 2.2 , the Company may withdraw any registration
statement referred to in this Section 2.2 (other than a
registration statement filed pursuant to a Registration Request
under Section 2.1 ) without thereby incurring any
liability for such withdrawal to any requesting Holder.
2.3
Registration Procedures . If and whenever the Company is
required by the provisions of Sections 2.1 or
2.2 to effect the registration of any Eligible Securities
under the Securities Act, the Company shall:
(a) prepare
and file with the Commission a registration statement with respect
to such securities that will permit the public sale thereof in
accordance with the method of distribution specified in the
applicable Registration Request, and the Company shall use its best
efforts (i) to cause such registration statement to be filed
within 60 days of receipt of the Registration Request,
(ii) to cause such registration statement to be declared
effective as promptly as practicable and (iii) to maintain the
effectiveness of such registration statement for a period of not
less than 90 days or, in the case of a registration statement
pursuant to a Registration Request under Section 2.1 ,
until such times as all securities registered thereunder have been
sold;
(b) promptly
prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used
in connection therewith as may be necessary to effect and maintain
the effectiveness of such registration statement for the
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period specified in
Section 2.3(a) and as to comply with the provisions of
the Securities Act with respect to the disposition of all Eligible
Securities covered by such registration statement in accordance
with the intended method of disposition set forth in such
registration statement for such period, including such amendments
or supplements as are necessary to cure any untrue statement or
omission referred to in Section 2.3(e)(vi) ;
(c) provide
to the managing underwriter or underwriters and not more than one
counsel for all underwriters, and provide to the Holders of
Eligible Securities to be included in such registration statement
and not more than one counsel for all such Holders, the opportunity
to participate in the preparation of (i) such registration
statement, (ii) each prospectus relating thereto and included
therein or filed with the Commission, and (iii) each amendment
or supplement thereto;
(d) make
available for inspection by the parties referred to in Section
2.3(c) such financial and other information and books and
records of the Company, and cause the officers, directors and
employees of the Company, and counsel and independent certified
public accountants of the Company, to respond to such inquiries, as
shall be reasonably necessary, in the judgment of respective
counsel to such Holders and such underwriter or underwriters, to
conduct a reasonable investigation within the meaning of the
Securities Act; provided , however , that each such
Person shall be required to retain in confidence and not to
disclose to any other Person any information or records reasonably
designated by the Company in writing as being confidential until
such time as such information becomes a matter of public record
(whether by virtue of its inclusion in such registration statement
or otherwise), unless (i) such Person shall be required to
disclose such information pursuant to the subpoena or order of any
court or other governmental agency or body having jurisdiction over
the matter or (ii) such information is required to be set
forth in such registration statement or the prospectus included
therein or in an amendment to such registration statement or an
amendment or supplement to such prospectus in order that such
registration statement, prospectus, amendment or supplement, as the
case may be, shall not contain an untrue statement of a material
fact or omit to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading,
and such information has not been so set forth after the request by
a Holder to such effect;
(e) immediately
notify the Persons referred to in Section 2.3(c) and
(if requested by any such Person) confirm such advice in writing,
(i) when such registration statement or any prospectus
included therein or any amendment or supplement thereto has been
filed and, with respect to such registration statement or any such
amendment, when the same has become effective; (ii) of any
written or material comments by the Commission with respect thereto
or any request by the Commission for amendments or supplements to
such registration statement or prospectus or for additional
information; (iii) of the issuance by the Commission of any
stop order suspending the effectiveness of such registration
statement or the initiation of any proceedings for that purpose;
(iv) if at any time the representations and warranties of the
Company contemplated by Section 2.3(1)(i) cease to be
true and correct in all material respects; (v) of the receipt
by the Company of any notification with respect to the suspension
of the qualification of any Eligible Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for
such purpose; or (vi) at any time when a prospectus is
required to be delivered under the Securities Act, of the
occurrence or failure to occur of any event, or any other change in
law, fact or circumstance, as a result of which such registration
statement,
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prospectus or any amendment or
supplement thereto, or any document incorporated by reference in
any of the foregoing, contains 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 light of the circumstances then existing;
(f) take
reasonable efforts to prevent or obtain the withdrawal at the
earliest practicable date of any order suspending the effectiveness
of such registration statement or any post-effective amendment
thereto;
(g) if
requested by the managing underwriter or underwriters or the
Holders of at least a majority of the Eligible Securities being
sold in connection with an underwritten public offering, promptly
incorporate in a prospectus supplement or post-effective amendment
such information as such managing underwriter or underwriters or
such Holders reasonably specify should be included therein relating
to the terms of the sale of such Eligible Securities, including,
without limitation, information with respect to the number of
Eligible Securities being sold to such underwriters, the names and
descriptions of such Holders, the purchase price being paid
therefore by such underwriters and any other terms of the
underwritten (or best efforts underwritten) offering of the
Eligible Securities to be sold in such offering, and make all
required filings of such prospectus supplement or post-effective
amendment promptly after notification of the matters to be
incorporated in such prospectus supplement or post-effective
amendment;
(h) furnish
to each Holder of Eligible Securities included in such registration
and each underwriter and counsel for Holder, if any, thereof a copy
of such executed registration statement, each such amendment and
supplement thereto (in each case including all exhibits thereto,
whether or not such exhibits are incorporated by reference therein)
and such number of copies of the prospectus included in such
registration statement (including each preliminary prospectus and
any summary prospectus) and each amendment or supplement thereto,
in conformity with the requirements of the Securities Act, as such
Holder and the managing underwriter, if any, may reasonably request
in order to facilitate the disposition of such Eligible Securities
by such Holder or by the participating underwriters;
(i) use
its best efforts to (i) register or qualify the Eligible
Securities to be included in such registration statement under such
other securities laws or blue sky laws of such jurisdictions as any
Holder of such Eligible Securities and each managing underwriter,
if any, thereof shall reasonably request, (ii) keep such
registrations or qualifications in effect for so long as is
necessary to effect the disposition of such Eligible Securities in
the manner contemplated by the registration statement, the
prospectus included therein and any amendment or supplement thereto
and (iii) take any and all such actions as may be reasonably
necessary or advisable to enable such Holder and any participating
underwriter or underwriters to consummate the disposition in such
jurisdictions of such Eligible Securities;
(j) cooperate
with the Holders of the Eligible Securities included in such
registration and the managing underwriters, if any, to facilitate
the timely preparation and delivery of certificates representing
Eligible Securities to be sold, which certificates shall be
printed, lithographed or engraved, or produced by any combination
of such methods, and which shall not bear any restrictive legends;
and, in the case of an underwritten public offering, enable
such
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Eligible Securities to be
registered in such names as the underwriter or underwriters may
request at least two (2) business days prior to any sale of
such Eligible Securities;
(k) provide
not later than the effective date of the registration statement a
transfer agent and registrar for such Eligible Securities and a
CUSIP number for all Eligible Securities;
(l) enter
into an underwriting agreement, engagement letter, agency
agreement, “best efforts” underwriting agreement or
similar agreement, as appropriate, and take such other actions in
connection therewith as the Holders of at least a majority of the
Eligible Securities to be included in such registration shall
reasonably request in order to expedite or facilitate the
disposition of
