EXHIBIT 3
STOCKHOLDERS AGREEMENT
This Stockholders Agreement, dated as of July 31,
2001 (as it may be amended from time to time, this "Agreement"),
is made by and among Electric City Corp., a Delaware corporation
(the "Company"), and each of the other entities set forth on
Schedule I hereto from time to time and shall become effective
on the Closing Date (as defined in the Securities Purchase
Agreement).
WITNESSETH
WHEREAS, the Company and the Holders have entered into
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 will sell and the
Holders will buy shares of the Company's Series A Convertible
Preferred Stock, par value $.01 per share (the "Series A
Preferred Stock"), together with shares of Common Stock,
warrants to purchase Series A Preferred Stock and warrants to
purchase Common Stock; and
WHEREAS, it is a condition to the obligations of the
Holders to purchase such securities pursuant to the Securities
Purchase Agreement that the parties hereto enter into this
Agreement.
AGREEMENT
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:
ARTICLE I
DEFINITIONS
1.1 Defined Terms. All terms capitalized but not
defined herein shall have the meaning attributable to such terms
in the Securities Purchase 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:
"Additional Purchase Agreement" means the securities
purchase agreement providing for the issuance and sale of Series
A Preferred Stock and Series A Preferred Stock Warrants to the
Additional Purchasers, as contemplated by Section 2.3 of the
Securities Purchase Agreement.
"Additional Purchaser" shall mean each purchaser under
the Additional Purchase Agreement.
"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.
"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 Electric City Corp. referenced in the
Securities Purchase Agreement.
"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..
"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.
"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 on Schedule I hereto from time to
time.
"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.
"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.
"Securities Purchase Agreement" shall have the meaning
set forth in the first recital hereof.
"Series A Preferred Stock" shall have the meaning set
forth in the first recital 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 a Holder (other than an
Additional Purchaser or its transferees) and its Affiliates hold
at least 200,000 shares of Series A Preferred Stock (as adjusted
for stock splits, stock combinations and the like) in the
aggregate, each such Holder 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 A Preferred Stock,
voting as a single class, each time Directors of the Company are
to be elected.
(b) Within 30 days of the first day that a
Holder and its Affiliates hold less than 200,000 shares of
Series A Preferred Stock (as adjusted for stock splits, stock
combinations and the like) in the aggregate, such Holder shall
cause the Director nominated by such Holder to resign from the
Board.
2.2 Board of Directors of the Company.
(a) So long as a Holder shall hold any shares of
Series A Preferred Stock, such Holder shall vote all of its
shares of Series A Preferred Stock for the election of all
Directors nominated pursuant to Section 2.1 hereof. The nominee
designated by each Holder 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 A
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 A Preferred Stock
for the purpose of obtaining a quorum and shall vote or cause
the vote of the Series A 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 A
Preferred Stock in favor of removal from the Board, upon notice
by a Holder that an individual designated by it 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 such Holder (unless such removal resulted
from such Holder and its Affiliates holding less than an
aggregate of 200,000 shares of Series A Preferred Stock, as
adjusted for stock splits, stock combinations and the like).
Each Holder shall cooperate fully in connection with the
nomination of Directors, the voting of its shares of Series A
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 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 Certificate of Designations (unless such
removal or withdrawal resulted from such Holder and its
Affiliates holding less than an aggregate of 200,000 shares of
Series A Preferred Stock, as adjusted for stock splits, stock
combinations and the like).
(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 A Preferred Stock, or enter into any arrangements of
any kind with any Person with respect to its Series A 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 each
Holder 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 such Holder of
the Series A Preferred Stock (unless such removal or withdrawal
resulted from such Holder and its Affiliates holding less than
an aggregate of 200,000 shares of Series A Preferred Stock (as
adjusted for stock splits, stock combinations and the like)),
and if 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 Series A Preferred Stock
is 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(f) of the Certificate of Designations.
2.3 Board Observation Rights. If a Holder (other
than an Additional Purchaser or its transferees) (a) possesses
the right to designate for nomination to the Board its nominee
pursuant to Section 2.1(a), or (b) no longer possesses a right
to designate for nomination to the Board its nominee pursuant to
Section 2.1(a) because such Holder and its Affiliates hold less
than an aggregate of 200,000 shares of Series A Preferred Stock
(as adjusted for stock splits, stock combinations and the like),
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. 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 A Preferred Stock. Any
Holder (including its Affiliates) who converts more than 50% of
the shares of Series A Preferred Stock (as adjusted for stock
splits, stock combinations and the like) purchased by it
pursuant to the Securities Purchase Agreement or Additional
Purchase Agreement, as applicable, shall, at the written request
of the Company, convert all of its remaining shares of Series A
Preferred Stock, if any, within five (5) Business Days of
receipt of such request, in accordance with Section 7(c) of the
Certificate of Designations. Any transferee of a Holder (other
than a Holder's Affiliates) who converts more than 50% of the
shares of Series A Preferred Stock transferred to it by a Holder
shall, at the written request of the Company, convert all of its
remaining shares of Series A Preferred Stock, if any, within
five (5) Business Days of receipt of such request, in accordance
with Section 7(c) of the Certificate of Designations.
2.5 Approval of Certain Actions by Holders of Series
A Preferred Stock.
(a) For so long as any shares of Series A
Preferred Stock remain issued and outstanding, the Company shall
not, without the affirmative consent or approval of the holders
of record representing 75% or more of the shares of Series A
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 A Preferred Stock): (i) enter into any
agreement that would restrict the Company's ability to perform
under the Securities Purchase Agreement; (ii) amend its
Certificate of Incorporation (including the Certificate of
Designations) or bylaws in any way that could adversely affect,
alter or change the rights, powers or preferences of the Series
A Preferred Stock; (iii) engage in any transaction that would
impair or reduce the rights, powers or preferences of the
Series A Preferred Stock as a class; or (iv) complete any Change
of Control Transaction (provided that if less than 400,000
shares of the Series A Preferred Stock are then outstanding (as
adjusted for stock splits, stock combinations, recapitalizations
and the like) and the then holders of Series A Preferred Stock
refused to consent to such Change of Control Transaction, the
Company may, at its option, redeem all, but not less than all,
of such Series A Preferred Stock pursuant to Section 6(e)(i)(D)
of the Certificate of Designations.
(b) For so long as at least 800,000 shares of
Series A Preferred Stock remain issued and outstanding (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 shares representing 66-
2/3% of the shares of Series A 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 A Preferred Stock):
(i) authorize or issue any capital stock or other equity
security with rights, preferences or privileges that are senior
to or pari passu with the Series A Preferred Stock or any
securities convertible or exchangeable into such capital stock
or equity, other than (x) Series A Preferred Stock issued upon
exercise of the Series A Preferred Stock Warrants issued
pursuant to the Securities Purchase Agreement, (y) Series A
Preferred Stock issued to the Additional Purchasers (as defined
in the Securities Purchase Agreement), if any, or issued upon
exercise of the Series A Preferred Stock Warrants issued to the
Additional Purchasers, if any, in compliance with Section 2.3 of
the Securities Purchase Agreement, or (z) Series A Preferred
Stock issued as payment in kind of any accrued but unpaid
dividends on the Series A Preferred Stock; (ii) authorize or
issue any options, rights or warrants to purchase capital stock
of the Company, other than Series A Preferred Stock Warrants
issued to the Additional Purchasers, if any, in compliance with
Section 2.3 of the Securities Purchase Agreement, or 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 or
by canceling existing options, rights or warrants in connection
with the grant of a new option, right or warrant; (iii)
authorize or issue any debt securities of the Company, other
than debt under the Company's existing revolving lines of credit
in effect on the date hereof 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 A 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 A 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 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 at least 1,200,000 shares of
Series A Preferred Stock remain issued and outstanding (as
adjusted for stock splits, stock combinations, recapitalizations
and the like), the Company shall not, without the affirmative
consent or approval of the holders representing 66-2/3% of the
shares of Series A 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 A Preferred Stock): (i) terminate
or newly appoint the chief executive officer or president 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
the Series A Preferred Stock. The Company shall not permit the
transfer of any of the Series A Preferred Stock on its books or
issue a new certificate representing any of the Series A
Preferred Stock unless and until the Person to whom such Series
A Preferred Stock is 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) nor any rights under
Section 2.3 (except in the case of Section 2.1(a) 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 A Preferred Stock held (or converted)
by a Holder pursuant to this Article II, the number of shares of
Series A Preferred Stock held (or converted) by all of such
Holder's Affiliates shall be aggregated with the number of
shares of Series A Preferred Stock held (or converted) by such
Holder.
2.8 Agreement of Additional Purchasers Regarding
Special Approval Rights Vote. In connection with any vote,
approval or written consent of the holders of shares of Series A
Preferred Stock pursuant to Section 2.5 of this Agreement
(and/or Section 6(e) of the Certificate of Designations), each
Additional Purchaser (and its Affiliates or their respective
transferees) shall vote or otherwise grant its approval or
written consent for its shares of Series A Preferred Stock
(prior to the close of voting but after the votes, approvals or
written consents of all of the other holders of Series A
Preferred Stock casting votes, approvals or written consents
have been tallied) in the same proportion to the aggregate
affirmative and negative votes, approvals or written consents of
the other holders of Series A Preferred Stock, with respect to
each proposal submitted for vote, approval or written consent.
ARTICLE III
GENERAL PROVISIONS
3.1 Legend on Share Certificates.
(a) All certificates for shares of Series A
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 9.3 of the
Securities Purchase Agreement (and any other legend required by
any other agreement contemplated by the Securities Purchase
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 STOCKHOLDERS
AGREEMENT, DATED AS OF JULY 31, 2001 (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 Section 3.1(a), a
certificate that no longer bears the legend set forth in 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 New York.
3.5 Entire Agreement; Amendment; Waiver.
(a) This Agreement, together with the
Certificate of Designations, contains the entire agreement among
the parties hereto with respect to the subject matter hereof.
This Agreement may not be amended or supplemented except by an
instrument or counterparts thereof in writing signed 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.
(b) The Company may enter into the Additional
Purchase Agreement. Each Holder agrees that upon each
Additional Purchaser's acquisition of Series A Preferred Stock
and Series A Preferred Stock Warrants in compliance with Section
2.3 of the Securities Purchase Agreement and execution and
delivery of a signature page to the joinder agreement between
the Company and each such Additional Purchaser pursuant to which
such Additional Purchaser agrees to become a Party and to be
bound by the terms hereof, each such Additional Purchaser shall
become a Party to this Agreement for all intents and purposes
and shall then be a Holder hereunder. The Company shall then
revise Schedule I to reflect the addition of each such
Additional Purchaser. The addition of such new parties and
revision of Schedule I shall not constitute a modification,
waiver or amendment of this Agreement that requires the consent
of or any writing from any of the Parties hereto.
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. 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 Securities Purchase Agreement, or Additional Purchase
Ageeement, as applicable.
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, 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 bylaws 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
Holder (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.
[SIGNATURE PAGE TO FOLLOW]
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: By:
____________________________
Name: Xxxx Xxxxxx Name:
____________________________
Title: Chief Executive Officer Title:
_____________________________
EP POWER FINANCE, L.L.C.,
a Delaware limited liability
company
By:
____________________________
Name:
____________________________
Title:
____________________________
XXXXXX XXXXXXX XXXX XXXXXX
EQUITY FUNDING, INC., a
Delaware corporation
By:
____________________________
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
ORIGINATORS INVESTMENT PLAN,
L.P., a Delaware limited
partnership
By: MSDW OIP Investors, Inc.,
its general partner
By:
____________________________
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
DUKE CAPITAL PARTNERS, LLC,
a Delaware limited liability
company
By:
____________________________
Name:
_____________________________
Title:
_____________________________
SCHEDULE I
HOLDERS
1. Newcourt Capital USA, Inc. is a Holder.
2. EP Power Finance, L.L.C. is a Holder
3. Xxxxxx Xxxxxxx Xxxx Xxxxxx Equity Funding, Inc. together
with Originators Investment Plan, L.P. are collectively a
Holder.
4. Duke Capital Partners, LLC is a Holder.
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[Signature Page to Stockholders Agreement]
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