Exhibit 4.22
JOINDER AND FIRST AMENDMENT TO INVESTOR RIGHTS AGREEMENT
This Joinder and First Amendment to Investor Rights Agreement (this
"AGREEMENT") is dated as of June 4, 2002 and is by and among Electric City
Corp., a Delaware corporation (the "COMPANY"), Newcourt Capital USA Inc., a
Delaware corporation, Newcourt Capital Securities, 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, Leaf Mountain Company, LLC, an Illinois
limited liability company and Xxxxxxx X. Xxxxxxx, an individual.
W I T N E S S E T H:
WHEREAS, the parties hereto other than Xxxxxxx X. Xxxxxxx are parties to
that certain Investor Rights Agreement dated as of July 31, 2001 (as in effect
on the date hereof, the "EXISTING AGREEMENT"); and
WHEREAS, Xxxxxxx X. 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 sell and Xx. Xxxxxxx has agreed to purchase shares of the
Company's Series C Preferred Stock (as herein defined) together with shares of
the Company's Common Stock (as defined in the Existing Agreement) and warrants
to purchase additional shares of Series C Preferred Stock and warrants to
purchase additional shares of Common Stock; and
WHEREAS, it is a condition precedent to the obligation of Xxxxxxx X.
Xxxxxxx to purchase such shares of Series C Preferred Stock and Common Stock and
such warrants that the parties hereto enter into this Agreement and the Company
and the other parties hereto are agreeable to the same;
NOW, THEREFORE, the Parties agree as follows:
1. DEFINITIONS. All terms capitalized but not defined herein shall have
the meaning attributable to such terms in the Existing Agreement, except where
the context otherwise requires.
2. AMENDMENT OF EXISTING AGREEMENT. The Existing Agreement is hereby
amended as follows:
A. The following new defined terms are added to the definitions in
Section 1.1:
"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.
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"SERIES C INVESTOR" means Xxxxxxx X. Xxxxxxx.
"SERIES C PREFERRED STOCK" means shares of the Company's Series C
Convertible Preferred Stock, par value $0.01 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 the warrants issued to
certain of the Investors to purchase 50,000 shares of Series C Preferred
Stock as evidenced by that certain warrant certificate, of even date
herewith, issued by the Company to the Series C Investor, as it may be
amended from time to time, with the consent of the Series A Investors.
"SERIES C SECURITIES PURCHASE AGREEMENT" means that certain Securities
Purchase Agreement dated as of May 31, 2002 between the Series C Investor
and the Company, as it may be amended from time to time with the consent of
the Series A Investors.
B. The definition of Common Stock Warrants is amended and restated in its
entirety as follows:
"COMMON STOCK WARRANTS" means (a) the warrants issued to the Series A
Investors pursuant to the Securities Purchase Agreement and the Additional
Purchase Agreement, as each may be amended from time to time, and (b) the
warrants to purchase up to 281,250 shares of Common Stock issued to the
Series C Investor pursuant to the Series C Securities Purchase Agreement,
as amended from time to time.
C. The definition of Eligible Securities is amended and restated in its
entirety as follows:
"ELIGIBLE SECURITIES" means (i) the shares of Common Stock issued or
issuable upon the conversion of the Series A Preferred Stock issued or
issuable pursuant to the Securities Purchase Agreement or the Additional
Purchase Agreement or issued or issuable upon exercise of the Series A
Preferred Stock Warrants and conversion of the Series A Preferred Stock
issued or issuable pursuant to such exercise; (ii) the shares of Common
Stock issued or issuable upon the conversion of the Series C Preferred
Stock issued or issuable pursuant to the Series C Securities Purchase
Agreement or issued or issuable upon exercise of the Series C Preferred
Stock Warrants and conversion of the Series C Preferred Stock issued or
issuable pursuant to such exercise; (iii) the shares of Common Stock issued
pursuant to Securities Purchase Agreement; (iv) the shares of Common Stock
issued pursuant to the Series C Securities Purchase Agreement; (v) the
shares of Common Stock issued or issuable upon exercise of the Common Stock
Warrants or upon exercise of the Placement Agent Warrants; and (vi) 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)
and this clause (vi); PROVIDED, HOWEVER, that the foregoing definition
shall exclude in all
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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.
D. The definition of Investors is amended and restated in its entirety as
follows:
"INVESTORS" means the Series A Investors, the Placement Agent and the
Series C Investor, collectively, and "INVESTOR" means any of them.
E. The definition of Parties is amended and restated in its entirety as
follows:
"PARTIES" means the Series A Investors, the Placement Agent, the
Series C Investor and the Company, collectively, and "PARTY" means any of
them.
F. Clause (d) of Section 3.1 is amended and restated in its entirety as
follows:
(d) The right of first offer in this Section 3.1 shall not be
applicable (i) to the issuance or sale of Common Stock (or options
therefore) to employees, consultants and directors pursuant to plans or
agreements approved by the Board of Directors for the purpose of soliciting
or retaining their services, (ii) to the issuance of securities in
connection with a bona fide business acquisition of or by the Company,
whether by merger, consolidation, sale of assets, sale or exchange of stock
or otherwise, (iii) to Common Stock issued upon conversion of the Series A
Preferred Stock or the Series C Preferred Stock or the exercise of the
Common Stock Warrants or the Placement Agent Warrants, (iv) to the Series A
Preferred Stock issued upon the exercise of Series A Preferred Stock
Warrants or the Series C Preferred Stock issued upon the exercise of the
Series C Preferred Stock Warrants, (v) to the issuance of securities
pursuant to options, warrants, notes or other rights to acquire securities
of the Company which were outstanding on July 31, 2001, (vi) to a Qualified
Primary Offering, (vii) to the issuance of Series A Preferred Stock and
Series A Preferred Stock Warrants pursuant to the Additional Purchase
Agreement in compliance with Section 2.3 of the Securities Purchase
Agreement, or (viii) to stock splits, stock dividends or like transactions.
G. Clause (ii) of Section 4.2 is amended and restated in its entirety as
follows:
(ii) If to an Investor: at the address set forth in the Securities
Purchase Agreement, the Additional Purchase Agreement or the Series C
Securities Purchase Agreement, as applicable.
H. Schedule I is amended and restated in its entirety as follows:
SCHEDULE I - INVESTORS
Newcourt Capital USA Inc.
Newcourt Capital Securities, Inc.
EP Power Finance, L.L.C.
Xxxxxx Xxxxxxx Xxxx Xxxxxx Equity Funding, Inc.
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Originators Investment Plan, X.X.
Xxxx Capital Partners, LLC
Leaf Mountain Company, LLC
Xxxxxxx X. Xxxxxxx
3. JOINDER. Each of the parties to this Agreement hereby agrees that
from and after date hereof Xxxxxxx X. Xxxxxxx shall be a party to and be bound
by the Investor Rights Agreement, as amended by this Agreement, as an Investor
and a Holder thereunder (as such terms are defined therein).
4. REPRESENTATIONS. Each party to this Agreement hereby represents and
warrants to each of the other parties to this Agreement that this Agreement has
been duly executed and delivered by such party and constitutes the valid and
binding obligation of such party, enforceable against such party in accordance
with its terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating to
or affecting creditors' rights and to general equity principles. Xxxxxxx X.
Xxxxxxx hereby acknowledges that he has received a copy of the Investor Rights
Agreement.
5. MISCELLANEOUS.
(a) All terms, covenants, agreements, representations, warranties and
undertakings in this Agreement shall bind and inure to the benefit of the
respective successors and assigns of the parties hereto whether so expressed or
not.
(b) Changes in or additions to this Agreement may be made or compliance
with any term, covenant, agreement, condition or provision set forth herein may
be omitted or waived, only in accordance with the provisions of the Investor
Rights Agreement, as amended hereby.
(c) This Agreement shall be governed and construed in accordance with the
laws of the State of New York without giving effect to the conflict of laws
principles thereof.
(d) This Agreement may be executed in counterparts, each of which shall
together constitute one and the same instrument.
(e) The section and paragraph headings herein are for convenience only and
shall not effect the construction hereof.
(f) The invalidity or unenforceability of any provision hereof shall in no
way affect the validity or enforceability of any other provision.
[Balance of page intentionally left blank; signature page follows.]
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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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