Exhibit 10.43 (1 of 4)
WARRANT
NEITHER THIS WARRANT NOR ANY SHARES OF COMMON STOCK ISSUABLE UPON THE EXERCISE
OF THIS WARRANT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR APPLICABLE STATE SECURITIES LAWS. SUCH SECURITIES MAY NOT BE OFFERED
FOR SALE, SOLD, TRANSFERRED OR ASSIGNED UNLESS (A) SUBSEQUENTLY REGISTERED
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF
1933, AS AMENDED, AND APPLICABLE STATE SECURITIES LAWS OR (B) THE HOLDER HEREOF
SHALL HAVE DELIVERED TO THE COMPANY A WRITTEN OPINION OF COUNSEL, IN FORM,
SUBSTANCE AND SCOPE REASONABLY ACCEPTABLE TO THE COMPANY, TO THE EFFECT THAT THE
SHARES TO BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED ARE BEING OFFERED
FOR SALE, SOLD, TRANSFERRED OR ASSIGNED PURSUANT TO AN EXEMPTION FROM SUCH
REGISTRATION.
ELECTRIC CITY CORP.
WARRANT TO PURCHASE COMMON STOCK
Warrant No.: 28 Number of Shares: 25,000
Original Date of Issuance: June 10, 2002
Electric City Corp., a Delaware corporation (the "COMPANY"), hereby certifies
that, for good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, Xxxxx Xxxxxx, the registered holder hereof or its
permitted assigns registered on the books of the Company (the "HOLDER"), is
entitled, subject to the terms and conditions set forth below, to purchase from
the Company upon surrender of this Warrant, at any time or times on or after the
date hereof, but not after 5:00 P.M. Eastern Standard Time on October 16, 2005
(the "EXPIRATION DATE"), Twenty-Five Thousand (25,000) fully paid and
nonassessable shares (the "WARRANT SHARES") of the Company's common stock, par
value $0.0001 per share (the "COMMON STOCK"), at the exercise price per share
equal to $4.71, subject to adjustment as hereinafter provided (the "WARRANT
EXERCISE PRICE").
Section 1. DEFINITIONS. In addition to the capitalized terms defined
elsewhere herein, the following terms as used in this Warrant shall have the
following meanings:
(i) "BUSINESS DAY" means any day other than Saturday, Sunday
or other day on which commercial banks in the City of New York are authorized or
required by law to remain closed.
Page 1 of 9
(ii) "PERSON" means an individual, a limited liability
company, a partnership, a joint venture, a corporation, a trust, an
unincorporated organization or a government or any department or agency thereof.
(iii) "SECURITIES ACT" means the Securities Act of 1933, as
amended.
Section 2. EXERCISE OF WARRANT.
(a) Subject to the terms and conditions hereof, this Warrant may
be exercised by the Holder, in whole or in part, during normal business hours on
any Business Day on or after the date hereof and prior to 5:00 P.M. Eastern
Standard Time on the Expiration Date by (i) delivery of a duly executed written
notice, in the form of the subscription notice attached as EXHIBIT A hereto (the
"EXERCISE NOTICE"), of such Holder's election to exercise this Warrant, which
notice shall specify the number of Warrant Shares to be purchased, (ii) payment
to the Company of an amount equal to the Warrant Exercise Price multiplied by
the number of Warrant Shares as to which this Warrant is being exercised (the
"AGGREGATE EXERCISE PRICE") in cash or by certified check or wire transfer of
immediately available funds, and (iii) delivery to the Company of this Warrant
(or an indemnity and evidence with respect to this Warrant in the case of its
loss, theft, mutilation or destruction as provided in Section 11). In the event
of any exercise of the rights represented by this Warrant in compliance with
this Section 2(a), the Company shall, on or before the tenth (10th) Business Day
following the date of its receipt of the Exercise Notice, the Aggregate Exercise
Price and this Warrant (or an indemnity and evidence with respect to this
Warrant in the case of its loss, theft, mutilation or destruction as provided in
Section 11) (the "EXERCISE DELIVERY DOCUMENTS"), deliver at the Company's
expense to the Holder, a certificate or certificates for the Warrant Shares so
purchased, in such denominations as may be requested by Holder and registered in
the name of Holder. Upon the Company's receipt of the Exercise Delivery
Documents, the Holder shall be deemed for all corporate purposes to have become
the holder of record of the Warrant Shares with respect to which this Warrant
has been exercised, irrespective of the date of delivery of certificates
evidencing such Warrant Shares.
(b) Unless the rights represented by this Warrant shall have
expired or shall have been fully exercised, the Company shall, as soon as
practicable and in no event later than ten (10) Business Days after any exercise
and at its own expense, issue a new Warrant identical in all respects to this
Warrant exercised, except it shall represent rights to purchase the number of
Warrant Shares purchasable immediately prior to such exercise under this Warrant
exercised, less the number of Warrant Shares with respect to which this Warrant
is exercised.
(c) No fractional shares of Common Stock are to be issued upon the
exercise of this Warrant, but rather the number of shares of Common Stock issued
upon exercise of this Warrant shall be rounded up or down to the nearest whole
number.
Section 3. COVENANTS. The Company hereby represents, covenants and
agrees as follows:
(a) This Warrant is, and any Warrants issued in substitution for
or replacement of this Warrant will upon issuance be, duly authorized and
validly issued.
(b) All Warrant Shares which may be issued upon the exercise of
the rights
Page 2 of 9
represented by this Warrant will, upon issuance, be validly issued, fully paid
and nonassessable and free from all taxes, liens and charges with respect to the
issue thereof.
(c) Prior to exercise of this Warrant, the Company shall secure
the listing of the Warrant Shares upon each national securities exchange or
market, if any, upon which shares of Common Stock are then listed (subject to
official notice of issuance upon exercise of this Warrant) and shall maintain
such listing of the Warrant Shares so long as any other shares of Common Stock
shall be so listed.
(d) The Company has full power and authority to enter into this
Warrant, and to issue and deliver this Warrant and the Warrant Shares, and to
incur and perform fully the obligations provided herein, all of which have been
duly authorized by all necessary corporate action.
(e) This Warrant has been duly executed and delivered and is the
valid and binding obligation of the Company enforceable in accordance with its
terms.
Section 4. TAXES. The Company shall pay any and all taxes, except income
taxes, which may be payable with respect to the issuance and delivery of Warrant
Shares upon exercise of this Warrant.
Section 5. HOLDER NOT DEEMED A STOCKHOLDER. Except as otherwise
specifically provided herein, this Warrant shall not entitle Holder to vote or
receive dividends or any other rights of a stockholder of the Company,
including, without limitation, any right to vote, give or withhold consent to
any corporate action (whether a reorganization, issue of stock, reclassification
of stock, consolidation, merger, conveyance or otherwise), receive notice of
meetings or receive subscription rights.
Section 6. REPRESENTATIONS OF HOLDER. The Holder, by the acceptance
hereof, represents and warrants that it (a) is acquiring this Warrant and the
Warrant Shares solely for its own account, for investment and not with a view
towards the distribution or resale thereof in violation of the Securities Act or
any applicable state securities laws, (b) has received such documents, materials
and information as Holder deems necessary or appropriate for evaluation of the
acquisition of the Warrant and the Warrant Shares, (c) is an "accredited
investor" as such term is defined in Rule 501 of Regulation D promulgated under
the Securities Act and has such knowledge and experience in financial and
business matters that it is capable of evaluating the merits and risks of an
investment in the Warrant and the Warrant Shares, (d) understands that no U.S.
federal, state or regulatory agency has recommended, approved or endorsed, or
passed upon the fairness or suitability of, an investment in the Warrant or
Warrant Shares or passed up on the accuracy or adequacy of the information
provided to Holder, and (e) recognizes that an investment in the Warrant Shares
involves a high degree of financial risk, can bear the economic risk of losing
its entire investment in the Warrant Shares and has sought, or will seek, such
accounting, legal and tax advice as it has considered, or will consider,
necessary to make an informed investment decision with respect to its
acquisition of this Warrant and Warrant Shares. If Holder cannot make any of the
foregoing representations at the time of exercising this Warrant because it
would be factually incorrect, Holder shall so notify the Company, and it shall
be a condition to Holder's exercise of this Warrant that the Company receive
such other assurances as the Company considers reasonably necessary to assure
the Company that the issuance of the
Page 3 of 9
Warrant Shares upon exercise of this Warrant shall not violate the Securities
Act or any state securities laws.
Section 7. RESTRICTION ON TRANSFER.
(a) This Warrant and the rights granted to Holder are
transferable, in whole or in part, upon surrender of this Warrant, together with
a properly executed warrant power in the form of EXHIBIT B attached hereto;
provided, however, that any transfer or assignment shall be subject to the
approval of the Company, such approval not to be unreasonably withheld and the
conditions set forth in Section 7(b) below.
(b) Holder represents and warrants that it understands that,
except as set forth in Section 8 below, the Company is under no obligation to
register this Warrant or the Warrant Shares under the Securities Act and that
the Warrant and Warrant Shares will be characterized as "restricted securities"
under the Securities Act because they are being acquired from the Company in a
transaction not involving a public offering. Holder also represents and warrants
that it understands that neither the Warrant nor the Warrant Shares may be
offered for sale, sold, assigned or transferred unless (a) subsequently
registered pursuant to an effective registration statement under the Securities
Act and applicable state securities laws or (b) Holder shall have delivered to
the Company a written opinion of counsel, in form, substance and scope
reasonably acceptable to the Company, to the effect that the securities to be
offered for sale, sold, assigned or transferred are being offered for sale,
sold, assigned or transferred pursuant to an exemption from such registration.
(c) Unless upon their issuance such Warrant Shares are then
registered under the Securities Act pursuant to an effective registration
statement, any certificates representing Warrant Shares issued in accordance
with this Warrant shall bear a legend substantially in the following form:
THE SHARES OF COMMON STOCK OF ELECTRIC CITY CORP. (THE "COMPANY")
REPRESENTED BY THIS CERTIFICATE (THE "SHARES") HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND
MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED UNLESS (A)
SUBSEQUENTLY REGISTERED PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS OR (B) THE
HOLDER HEREOF SHALL HAVE DELIVERED TO THE COMPANY A WRITTEN OPINION OF
COUNSEL, IN FORM, SUBSTANCE AND SCOPE REASONABLY ACCEPTABLE TO THE COMPANY,
TO THE EFFECT THAT THE SHARES TO BE OFFERED FOR SALE, SOLD, TRANSFERRED OR
ASSIGNED ARE BEING OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED PURSUANT
TO AN EXEMPTION FROM SUCH REGISTRATION.
Section 8. THIS SECTION HAS BEEN LEFT BLANK INTENTIONALLY.
Page 4 of 9
Section 9.
(a) ADJUSTMENT OF WARRANT EXERCISE PRICE AND NUMBER OF WARRANT
SHARES UPON SUBDIVISION OR COMBINATION OF COMPANY STOCK. If the Company at any
time after the date of issuance of this Warrant subdivides (by any stock split
or stock dividend of its Common Stock) its outstanding shares of Common Stock
into a greater number of shares of Common Stock, the Warrant Exercise Price in
effect immediately prior to such subdivision will be proportionately reduced and
the number of Warrant Shares obtainable upon exercise of this Warrant will be
proportionately increased. If the Company at any time after the date of issuance
of this Warrant combines (by reverse stock split or otherwise) its outstanding
shares of Common Stock into a smaller number of shares of Common Stock, the
Warrant Exercise Price in effect immediately prior to such combination will be
proportionately increased and the number of Warrant Shares obtainable upon
exercise of this Warrant will be proportionately decreased. Any adjustment under
this Section 9(a) shall become effective at the close of business on the date
the subdivision or combination becomes effective.
(b) NOTICES. Upon any adjustment of the Warrant Exercise Price or
number of issuable Warrant Shares pursuant to Section 9(a), the Company will
give written notice thereof to the Holder, setting forth in reasonable detail
the calculation of such adjustment.
Section 10. REORGANIZATION, RECLASSIFICATION, CONSOLIDATION, MERGER OR
SALE. If at any time, as a result of:
(i) a capital reorganization or reclassification (other than
a subdivision or combination provided for in Section 9), or
(ii) a merger or consolidation of the Company with another
corporation (whether or not the Company is the surviving corporation) or sale of
substantially all of the Company's stock, the Common Stock issuable upon
exercise of this Warrant shall be changed into or exchanged for the same or a
different number of shares of any class or classes of capital stock of the
Company or any other Person, or other securities convertible into such shares,
then, as a part of such reorganization, reclassification, merger, consolidation
or sale, appropriate adjustments shall be made in the terms of this Warrant (or
of any securities into which this Warrant is exercised or for which this Warrant
is exchanged), so that Holder shall thereafter be entitled to receive, upon
exercise of this Warrant or of such substitute securities, the kind and amount
of shares of stock, other securities, money and property which Holder would have
received at the time of such capital reorganization, reclassification, merger,
consolidation or sale, if Holder had exercised this Warrant immediately prior to
such capital reorganization, reclassification, merger, consolidation or sale.
This Warrant, including, without limitation, the provisions of this Section 10
will be binding upon any entity succeeding to the Company by merger,
consolidation or acquisition of all or substantially all of the Company's
assets. The provisions of this Section 10 shall similarly apply to (x)
successive capital reorganizations, reclassifications, mergers, consolidations
and sale and (y) the securities of any other Person that are at the time
receivable upon the exercise of this Warrant.
Page 5 of 9
Section 11. LOST, STOLEN, MUTILATED OR DESTROYED WARRANT. If this Warrant
is lost, stolen, mutilated or destroyed, the Company shall promptly, on receipt
of evidence reasonably satisfactory to the Company of the ownership of, and the
loss, theft, mutilation or destruction of, this Warrant, and an indemnity
reasonably satisfactory to the Company (or in the case of a mutilated Warrant,
the Warrant), issue in lieu thereof a new Warrant of like denomination and tenor
as this Warrant so lost, stolen, mutilated or destroyed.
Section 12. NOTICE. Any notices, consents, waivers or other communications
required or permitted to be given under the terms of this Warrant must be in
writing and will be deemed to have been made upon receipt when delivered
personally, via pre-paid overnight courier or by registered or certified mail,
postage pre-paid, return receipt requested. The addresses for such
communications shall be:
If to the Company:
Electric City Corp.
0000 Xxxxxxxxx Xxxx
Xxx Xxxxx Xxxxxxx, XX 00000
Attention: General Counsel
If to the Holder:
Delano Group Securities
000 Xxxx Xxxxxxx Xxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxx
With a copy to:
-------------------------------
-------------------------------
-------------------------------
Attention:
--------------------
or such other address as the Company or Holder, as applicable, may specify in
written notice given to the other party in accordance with this Section 12.
Section 13. AMENDMENTS. This Warrant and any term hereof may be changed,
waived, discharged, or terminated only by an instrument in writing signed by the
party hereto against which enforcement of such change, waiver, discharge or
termination is sought.
Section 14. EXPIRATION. This Warrant, in all events, shall be wholly void
and of no effect after 5:00 P.M. Eastern Standard Time on the Expiration Date,
except that notwithstanding any other provisions hereof, the provisions of
Sections 7 and 8 shall continue in full force and effect after such date as to
any Warrant Shares or other securities issued upon the exercise of this Warrant.
Page 6 of 9
Section 15. SUCCESSORS AND ASSIGNS. The terms and provisions of this
Warrant shall inure to the benefit of, and be binding upon, the Company and the
Holder and their respective successors and permitted assigns.
Section 16. DESCRIPTIVE HEADINGS; GOVERNING LAW; ARBITRATION. The
descriptive headings of the several sections and paragraphs of this Warrant are
inserted for convenience only and do not constitute a part of this Warrant. All
questions concerning the construction, validity, enforcement and interpretation
of this Warrant shall be governed by the internal laws of the State of Illinois,
without giving effect to any choice of law or conflict of law provision or rule
(whether of the State of Illinois or any other jurisdiction) that would cause
the application of the laws of any jurisdiction other than the State of
Illinois.
In the event of any and all disagreements and controversies arising from this
Warrant, such disagreements and controversies shall be subject to binding
arbitration as arbitrated in accordance with the then current Commercial
Arbitration Rules of the American Arbitration Association in Chicago, Illinois
before one neutral arbitrator. Either party may apply to the arbitrator seeking
injunctive relief until the arbitration award is rendered or the controversy is
otherwise resolved. Without waiving any remedy under this Warrant, either party
may also seek from any court having jurisdiction any interim or provisional
relief that is necessary to protect the rights or property of that party,
pending the establishment of the arbitral tribunal (or pending the arbitral
tribunal's determination of the merits of the controversy). In the event of any
such disagreement or controversy, neither party shall directly or indirectly
reveal, report, publish or disclose any information relating to such
disagreement or controversy to any person, firm or corporation not expressly
authorized by the other party to receive such information or use such
information or assist any other person in doing so, except to comply with actual
legal obligations of such party, or unless such disclosure is directly related
to an arbitration proceeding as provided herein, including, but not limited to,
the prosecution or defense of any claim in such arbitration. The costs and
expenses of the arbitration (excluding attorneys' fees) shall be paid by the
non-prevailing party or as determined by the arbitrator.
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by a
duly authorized officer, as of the 10th day of June, 2002.
ELECTRIC CITY CORP.
By: /s/ Xxxxxxx Xxxxxxx
--------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Chief Financial Officer
Page 7 of 9
EXHIBIT A TO WARRANT
SUBSCRIPTION FORM
TO BE EXECUTED BY THE REGISTERED HOLDER TO EXERCISE THIS WARRANT
ELECTRIC CITY CORP.
The undersigned Holder hereby exercises the right to purchase
_________________ of the shares of Common Stock ("WARRANT SHARES") of Electric
City Corp., a Delaware corporation (the "COMPANY"), evidenced by the attached
Warrant (the "WARRANT"). The Holder tenders herewith payment of the Aggregate
Exercise Price in full in the amount of $___________________ in the form of
cash, certified check or wire transfer of immediately available funds with
respect to _______________ Warrant Shares. Capitalized terms used herein and not
otherwise defined shall have the respective meanings set forth in the Warrant.
Date: _______________ __, 200_
Name of Holder
By:
------------------------------------
Name:
------------------------------
Title:
-----------------------------
Page 8 of 9
EXHIBIT B TO WARRANT
FORM OF WARRANT POWER
FOR VALUE RECEIVED, the undersigned does hereby assign and transfer to
________________, a warrant to purchase ____________ shares of the Common Stock
of Electric City Corp., a Delaware corporation, represented by warrant
certificate no. _____, standing in the name of the undersigned on the books of
said corporation. The undersigned does hereby irrevocably constitute and appoint
_______________________, to transfer the warrants of said corporation, with full
power of substitution in the premises.
Dated: _________, 200_
--------------------------------
By:
----------------------------
Name:
----------------------------
Its:
-----------------------------
Page 9 of 9
Exhibit 10.43 (2 of 4)
WARRANT
NEITHER THIS WARRANT NOR ANY SHARES OF COMMON STOCK ISSUABLE UPON THE EXERCISE
OF THIS WARRANT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR APPLICABLE STATE SECURITIES LAWS. SUCH SECURITIES MAY NOT BE OFFERED
FOR SALE, SOLD, TRANSFERRED OR ASSIGNED UNLESS (A) SUBSEQUENTLY REGISTERED
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF
1933, AS AMENDED, AND APPLICABLE STATE SECURITIES LAWS OR (B) THE HOLDER HEREOF
SHALL HAVE DELIVERED TO THE COMPANY A WRITTEN OPINION OF COUNSEL, IN FORM,
SUBSTANCE AND SCOPE REASONABLY ACCEPTABLE TO THE COMPANY, TO THE EFFECT THAT THE
SHARES TO BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED ARE BEING OFFERED
FOR SALE, SOLD, TRANSFERRED OR ASSIGNED PURSUANT TO AN EXEMPTION FROM SUCH
REGISTRATION.
ELECTRIC CITY CORP.
WARRANT TO PURCHASE COMMON STOCK
Warrant No.: 29 Number of Shares: 25,000
Original Date of Issuance: June 10, 2002
Electric City Corp., a Delaware corporation (the "COMPANY"), hereby certifies
that, for good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, Xxxxxx Xxxxxxxxx, the registered holder hereof or its
permitted assigns registered on the books of the Company (the "HOLDER"), is
entitled, subject to the terms and conditions set forth below, to purchase from
the Company upon surrender of this Warrant, at any time or times on or after the
date hereof, but not after 5:00 P.M. Eastern Standard Time on October 16, 2005
(the "EXPIRATION DATE"), Twenty-Five Thousand (25,000) fully paid and
nonassessable shares (the "WARRANT SHARES") of the Company's common stock, par
value $0.0001 per share (the "COMMON STOCK"), at the exercise price per share
equal to $4.71, subject to adjustment as hereinafter provided (the "WARRANT
EXERCISE PRICE").
Section 1. DEFINITIONS. In addition to the capitalized terms defined
elsewhere herein, the following terms as used in this Warrant shall have the
following meanings:
(i) "BUSINESS DAY" means any day other than Saturday, Sunday
or other day on which commercial banks in the City of New York are authorized or
required by law to remain closed.
Page 1 of 9
(ii) "PERSON" means an individual, a limited liability
company, a partnership, a joint venture, a corporation, a trust, an
unincorporated organization or a government or any department or agency thereof.
(iii) "SECURITIES ACT" means the Securities Act of 1933, as
amended.
Section 2. EXERCISE OF WARRANT.
(a) Subject to the terms and conditions hereof, this Warrant may
be exercised by the Holder, in whole or in part, during normal business hours on
any Business Day on or after the date hereof and prior to 5:00 P.M. Eastern
Standard Time on the Expiration Date by (i) delivery of a duly executed written
notice, in the form of the subscription notice attached as EXHIBIT A hereto (the
"EXERCISE NOTICE"), of such Holder's election to exercise this Warrant, which
notice shall specify the number of Warrant Shares to be purchased, (ii) payment
to the Company of an amount equal to the Warrant Exercise Price multiplied by
the number of Warrant Shares as to which this Warrant is being exercised (the
"AGGREGATE EXERCISE PRICE") in cash or by certified check or wire transfer of
immediately available funds, and (iii) delivery to the Company of this Warrant
(or an indemnity and evidence with respect to this Warrant in the case of its
loss, theft, mutilation or destruction as provided in Section 11). In the event
of any exercise of the rights represented by this Warrant in compliance with
this Section 2(a), the Company shall, on or before the tenth (10th) Business Day
following the date of its receipt of the Exercise Notice, the Aggregate Exercise
Price and this Warrant (or an indemnity and evidence with respect to this
Warrant in the case of its loss, theft, mutilation or destruction as provided in
Section 11) (the "EXERCISE DELIVERY DOCUMENTS"), deliver at the Company's
expense to the Holder, a certificate or certificates for the Warrant Shares so
purchased, in such denominations as may be requested by Holder and registered in
the name of Holder. Upon the Company's receipt of the Exercise Delivery
Documents, the Holder shall be deemed for all corporate purposes to have become
the holder of record of the Warrant Shares with respect to which this Warrant
has been exercised, irrespective of the date of delivery of certificates
evidencing such Warrant Shares.
(b) Unless the rights represented by this Warrant shall have
expired or shall have been fully exercised, the Company shall, as soon as
practicable and in no event later than ten (10) Business Days after any exercise
and at its own expense, issue a new Warrant identical in all respects to this
Warrant exercised, except it shall represent rights to purchase the number of
Warrant Shares purchasable immediately prior to such exercise under this Warrant
exercised, less the number of Warrant Shares with respect to which this Warrant
is exercised.
(c) No fractional shares of Common Stock are to be issued upon the
exercise of this Warrant, but rather the number of shares of Common Stock issued
upon exercise of this Warrant shall be rounded up or down to the nearest whole
number.
Section 3. COVENANTS. The Company hereby represents, covenants and agrees
as follows:
(a) This Warrant is, and any Warrants issued in substitution for
or replacement of this Warrant will upon issuance be, duly authorized and
validly issued.
(b) All Warrant Shares which may be issued upon the exercise of
the rights
Page 2 of 9
represented by this Warrant will, upon issuance, be validly issued, fully paid
and nonassessable and free from all taxes, liens and charges with respect to the
issue thereof.
(c) Prior to exercise of this Warrant, the Company shall secure
the listing of the Warrant Shares upon each national securities exchange or
market, if any, upon which shares of Common Stock are then listed (subject to
official notice of issuance upon exercise of this Warrant) and shall maintain
such listing of the Warrant Shares so long as any other shares of Common Stock
shall be so listed.
(d) The Company has full power and authority to enter into this
Warrant, and to issue and deliver this Warrant and the Warrant Shares, and to
incur and perform fully the obligations provided herein, all of which have been
duly authorized by all necessary corporate action.
(e) This Warrant has been duly executed and delivered and is the
valid and binding obligation of the Company enforceable in accordance with its
terms.
Section 4. TAXES. The Company shall pay any and all taxes, except income
taxes, which may be payable with respect to the issuance and delivery of Warrant
Shares upon exercise of this Warrant.
Section 5. HOLDER NOT DEEMED A STOCKHOLDER. Except as otherwise
specifically provided herein, this Warrant shall not entitle Holder to vote or
receive dividends or any other rights of a stockholder of the Company,
including, without limitation, any right to vote, give or withhold consent to
any corporate action (whether a reorganization, issue of stock, reclassification
of stock, consolidation, merger, conveyance or otherwise), receive notice of
meetings or receive subscription rights.
Section 6. REPRESENTATIONS OF HOLDER. The Holder, by the acceptance
hereof, represents and warrants that it (a) is acquiring this Warrant and the
Warrant Shares solely for its own account, for investment and not with a view
towards the distribution or resale thereof in violation of the Securities Act or
any applicable state securities laws, (b) has received such documents, materials
and information as Holder deems necessary or appropriate for evaluation of the
acquisition of the Warrant and the Warrant Shares, (c) is an "accredited
investor" as such term is defined in Rule 501 of Regulation D promulgated under
the Securities Act and has such knowledge and experience in financial and
business matters that it is capable of evaluating the merits and risks of an
investment in the Warrant and the Warrant Shares, (d) understands that no U.S.
federal, state or regulatory agency has recommended, approved or endorsed, or
passed upon the fairness or suitability of, an investment in the Warrant or
Warrant Shares or passed up on the accuracy or adequacy of the information
provided to Holder, and (e) recognizes that an investment in the Warrant Shares
involves a high degree of financial risk, can bear the economic risk of losing
its entire investment in the Warrant Shares and has sought, or will seek, such
accounting, legal and tax advice as it has considered, or will consider,
necessary to make an informed investment decision with respect to its
acquisition of this Warrant and Warrant Shares. If Holder cannot make any of the
foregoing representations at the time of exercising this Warrant because it
would be factually incorrect, Holder shall so notify the Company, and it shall
be a condition to Holder's exercise of this Warrant that the Company receive
such other assurances as the Company considers reasonably necessary to assure
the Company that the issuance of the
Page 3 of 9
Warrant Shares upon exercise of this Warrant shall not violate the Securities
Act or any state securities laws.
Section 7. RESTRICTION ON TRANSFER.
(a) This Warrant and the rights granted to Holder are
transferable, in whole or in part, upon surrender of this Warrant, together with
a properly executed warrant power in the form of EXHIBIT B attached hereto;
provided, however, that any transfer or assignment shall be subject to the
approval of the Company, such approval not to be unreasonably withheld and the
conditions set forth in Section 7(b) below.
(b) Holder represents and warrants that it understands that,
except as set forth in Section 8 below, the Company is under no obligation to
register this Warrant or the Warrant Shares under the Securities Act and that
the Warrant and Warrant Shares will be characterized as "restricted securities"
under the Securities Act because they are being acquired from the Company in a
transaction not involving a public offering. Holder also represents and warrants
that it understands that neither the Warrant nor the Warrant Shares may be
offered for sale, sold, assigned or transferred unless (a) subsequently
registered pursuant to an effective registration statement under the Securities
Act and applicable state securities laws or (b) Holder shall have delivered to
the Company a written opinion of counsel, in form, substance and scope
reasonably acceptable to the Company, to the effect that the securities to be
offered for sale, sold, assigned or transferred are being offered for sale,
sold, assigned or transferred pursuant to an exemption from such registration.
(c) Unless upon their issuance such Warrant Shares are then
registered under the Securities Act pursuant to an effective registration
statement, any certificates representing Warrant Shares issued in accordance
with this Warrant shall bear a legend substantially in the following form:
THE SHARES OF COMMON STOCK OF ELECTRIC CITY CORP. (THE "COMPANY")
REPRESENTED BY THIS CERTIFICATE (THE "SHARES") HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND
MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED UNLESS (A)
SUBSEQUENTLY REGISTERED PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS OR (B) THE
HOLDER HEREOF SHALL HAVE DELIVERED TO THE COMPANY A WRITTEN OPINION OF
COUNSEL, IN FORM, SUBSTANCE AND SCOPE REASONABLY ACCEPTABLE TO THE COMPANY,
TO THE EFFECT THAT THE SHARES TO BE OFFERED FOR SALE, SOLD, TRANSFERRED OR
ASSIGNED ARE BEING OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED PURSUANT
TO AN EXEMPTION FROM SUCH REGISTRATION.
Section 8. THIS SECTION HAS BEEN LEFT BLANK INTENTIONALLY.
Page 4 of 9
Section 9.
(a) ADJUSTMENT OF WARRANT EXERCISE PRICE AND NUMBER OF WARRANT
SHARES UPON SUBDIVISION OR COMBINATION OF COMPANY STOCK. If the Company at any
time after the date of issuance of this Warrant subdivides (by any stock split
or stock dividend of its Common Stock) its outstanding shares of Common Stock
into a greater number of shares of Common Stock, the Warrant Exercise Price in
effect immediately prior to such subdivision will be proportionately reduced and
the number of Warrant Shares obtainable upon exercise of this Warrant will be
proportionately increased. If the Company at any time after the date of issuance
of this Warrant combines (by reverse stock split or otherwise) its outstanding
shares of Common Stock into a smaller number of shares of Common Stock, the
Warrant Exercise Price in effect immediately prior to such combination will be
proportionately increased and the number of Warrant Shares obtainable upon
exercise of this Warrant will be proportionately decreased. Any adjustment under
this Section 9(a) shall become effective at the close of business on the date
the subdivision or combination becomes effective.
(b) NOTICES. Upon any adjustment of the Warrant Exercise Price or
number of issuable Warrant Shares pursuant to Section 9(a), the Company will
give written notice thereof to the Holder, setting forth in reasonable detail
the calculation of such adjustment.
Section 10. REORGANIZATION, RECLASSIFICATION, CONSOLIDATION, MERGER OR
SALE. If at any time, as a result of:
(i) a capital reorganization or reclassification (other than
a subdivision or combination provided for in Section 9), or
(ii) a merger or consolidation of the Company with another
corporation (whether or not the Company is the surviving corporation) or sale of
substantially all of the Company's stock, the Common Stock issuable upon
exercise of this Warrant shall be changed into or exchanged for the same or a
different number of shares of any class or classes of capital stock of the
Company or any other Person, or other securities convertible into such shares,
then, as a part of such reorganization, reclassification, merger, consolidation
or sale, appropriate adjustments shall be made in the terms of this Warrant (or
of any securities into which this Warrant is exercised or for which this Warrant
is exchanged), so that Holder shall thereafter be entitled to receive, upon
exercise of this Warrant or of such substitute securities, the kind and amount
of shares of stock, other securities, money and property which Holder would have
received at the time of such capital reorganization, reclassification, merger,
consolidation or sale, if Holder had exercised this Warrant immediately prior to
such capital reorganization, reclassification, merger, consolidation or sale.
This Warrant, including, without limitation, the provisions of this Section 10
will be binding upon any entity succeeding to the Company by merger,
consolidation or acquisition of all or substantially all of the Company's
assets. The provisions of this Section 10 shall similarly apply to (x)
successive capital reorganizations, reclassifications, mergers, consolidations
and sale and (y) the securities of any other Person that are at the time
receivable upon the exercise of this Warrant.
Page 5 of 9
Section 11. LOST, STOLEN, MUTILATED OR DESTROYED WARRANT. If this Warrant
is lost, stolen, mutilated or destroyed, the Company shall promptly, on receipt
of evidence reasonably satisfactory to the Company of the ownership of, and the
loss, theft, mutilation or destruction of, this Warrant, and an indemnity
reasonably satisfactory to the Company (or in the case of a mutilated Warrant,
the Warrant), issue in lieu thereof a new Warrant of like denomination and tenor
as this Warrant so lost, stolen, mutilated or destroyed.
Section 12. NOTICE. Any notices, consents, waivers or other communications
required or permitted to be given under the terms of this Warrant must be in
writing and will be deemed to have been made upon receipt when delivered
personally, via pre-paid overnight courier or by registered or certified mail,
postage pre-paid, return receipt requested. The addresses for such
communications shall be:
If to the Company:
Electric City Corp.
0000 Xxxxxxxxx Xxxx
Xxx Xxxxx Xxxxxxx, XX 00000
Attention: General Counsel
If to the Holder:
Delano Group Securities
000 Xxxx Xxxxxxx Xxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxxxx
With a copy to:
-------------------------------
-------------------------------
-------------------------------
Attention:
------------------
or such other address as the Company or Holder, as applicable, may specify in
written notice given to the other party in accordance with this Section 12.
Section 13. AMENDMENTS. This Warrant and any term hereof may be changed,
waived, discharged, or terminated only by an instrument in writing signed by the
party hereto against which enforcement of such change, waiver, discharge or
termination is sought.
Section 14. EXPIRATION. This Warrant, in all events, shall be wholly void
and of no effect after 5:00 P.M. Eastern Standard Time on the Expiration Date,
except that notwithstanding any other provisions hereof, the provisions of
Sections 7 and 8 shall continue in full force and effect after such date as to
any Warrant Shares or other securities issued upon the exercise of this Warrant.
Page 6 of 9
Section 15. SUCCESSORS AND ASSIGNS. The terms and provisions of this
Warrant shall inure to the benefit of, and be binding upon, the Company and the
Holder and their respective successors and permitted assigns.
Section 16. DESCRIPTIVE HEADINGS; GOVERNING LAW; ARBITRATION. The
descriptive headings of the several sections and paragraphs of this Warrant are
inserted for convenience only and do not constitute a part of this Warrant. All
questions concerning the construction, validity, enforcement and interpretation
of this Warrant shall be governed by the internal laws of the State of Illinois,
without giving effect to any choice of law or conflict of law provision or rule
(whether of the State of Illinois or any other jurisdiction) that would cause
the application of the laws of any jurisdiction other than the State of
Illinois.
In the event of any and all disagreements and controversies arising from this
Warrant, such disagreements and controversies shall be subject to binding
arbitration as arbitrated in accordance with the then current Commercial
Arbitration Rules of the American Arbitration Association in Chicago, Illinois
before one neutral arbitrator. Either party may apply to the arbitrator seeking
injunctive relief until the arbitration award is rendered or the controversy is
otherwise resolved. Without waiving any remedy under this Warrant, either party
may also seek from any court having jurisdiction any interim or provisional
relief that is necessary to protect the rights or property of that party,
pending the establishment of the arbitral tribunal (or pending the arbitral
tribunal's determination of the merits of the controversy). In the event of any
such disagreement or controversy, neither party shall directly or indirectly
reveal, report, publish or disclose any information relating to such
disagreement or controversy to any person, firm or corporation not expressly
authorized by the other party to receive such information or use such
information or assist any other person in doing so, except to comply with actual
legal obligations of such party, or unless such disclosure is directly related
to an arbitration proceeding as provided herein, including, but not limited to,
the prosecution or defense of any claim in such arbitration. The costs and
expenses of the arbitration (excluding attorneys' fees) shall be paid by the
non-prevailing party or as determined by the arbitrator.
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by a
duly authorized officer, as of the 10th day of June, 2002.
ELECTRIC CITY CORP.
By: /s/ Xxxxxxx Xxxxxxx
-------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Chief Financial Officer
Page 7 of 9
EXHIBIT A TO WARRANT
SUBSCRIPTION FORM
TO BE EXECUTED BY THE REGISTERED HOLDER TO EXERCISE THIS WARRANT
ELECTRIC CITY CORP.
The undersigned Holder hereby exercises the right to purchase
_________________ of the shares of Common Stock ("WARRANT SHARES") of Electric
City Corp., a Delaware corporation (the "COMPANY"), evidenced by the attached
Warrant (the "WARRANT"). The Holder tenders herewith payment of the Aggregate
Exercise Price in full in the amount of $___________________ in the form of
cash, certified check or wire transfer of immediately available funds with
respect to _______________ Warrant Shares. Capitalized terms used herein and not
otherwise defined shall have the respective meanings set forth in the Warrant.
Date: _______________ __, 200_
Name of Holder
By:
-----------------------------------
Name:
-----------------------------
Title:
----------------------------
Page 8 of 9
EXHIBIT B TO WARRANT
FORM OF WARRANT POWER
FOR VALUE RECEIVED, the undersigned does hereby assign and transfer to
________________, a warrant to purchase ____________ shares of the Common Stock
of Electric City Corp., a Delaware corporation, represented by warrant
certificate no. _____, standing in the name of the undersigned on the books of
said corporation. The undersigned does hereby irrevocably constitute and appoint
_______________________, to transfer the warrants of said corporation, with full
power of substitution in the premises.
Dated: _________, 200_
-----------------------------------
By:
-------------------------------
Name:
-----------------------------
Its:
------------------------------
Page 9 of 9
Exhibit 10.43 (3 of 4)
WARRANT
NEITHER THIS WARRANT NOR ANY SHARES OF COMMON STOCK ISSUABLE UPON THE EXERCISE
OF THIS WARRANT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR APPLICABLE STATE SECURITIES LAWS. SUCH SECURITIES MAY NOT BE OFFERED
FOR SALE, SOLD, TRANSFERRED OR ASSIGNED UNLESS (A) SUBSEQUENTLY REGISTERED
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF
1933, AS AMENDED, AND APPLICABLE STATE SECURITIES LAWS OR (B) THE HOLDER HEREOF
SHALL HAVE DELIVERED TO THE COMPANY A WRITTEN OPINION OF COUNSEL, IN FORM,
SUBSTANCE AND SCOPE REASONABLY ACCEPTABLE TO THE COMPANY, TO THE EFFECT THAT THE
SHARES TO BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED ARE BEING OFFERED
FOR SALE, SOLD, TRANSFERRED OR ASSIGNED PURSUANT TO AN EXEMPTION FROM SUCH
REGISTRATION.
ELECTRIC CITY CORP.
WARRANT TO PURCHASE COMMON STOCK
Warrant No.: 27 Number of Shares: 25,000
Original Date of Issuance: June 10, 2002
Electric City Corp., a Delaware corporation (the "COMPANY"), hereby certifies
that, for good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, Xxxx Xxxxxx, the registered holder hereof or its
permitted assigns registered on the books of the Company (the "HOLDER"), is
entitled, subject to the terms and conditions set forth below, to purchase from
the Company upon surrender of this Warrant, at any time or times on or after the
date hereof, but not after 5:00 P.M. Eastern Standard Time on October 16, 2005
(the "EXPIRATION DATE"), Twenty-Five Thousand (25,000) fully paid and
nonassessable shares (the "WARRANT SHARES") of the Company's common stock, par
value $0.0001 per share (the "COMMON STOCK"), at the exercise price per share
equal to $4.71, subject to adjustment as hereinafter provided (the "WARRANT
EXERCISE PRICE").
Section 1. DEFINITIONS. In addition to the capitalized terms defined
elsewhere herein, the following terms as used in this Warrant shall have the
following meanings:
(i) "BUSINESS DAY" means any day other than Saturday, Sunday
or other day on which commercial banks in the City of New York are authorized or
required by law to remain closed.
Page 1 of 9
(ii) "PERSON" means an individual, a limited liability
company, a partnership, a joint venture, a corporation, a trust, an
unincorporated organization or a government or any department or agency thereof.
(iii) "SECURITIES ACT" means the Securities Act of 1933, as
amended.
Section 2. EXERCISE OF WARRANT.
(a) Subject to the terms and conditions hereof, this Warrant may
be exercised by the Holder, in whole or in part, during normal business hours on
any Business Day on or after the date hereof and prior to 5:00 P.M. Eastern
Standard Time on the Expiration Date by (i) delivery of a duly executed written
notice, in the form of the subscription notice attached as EXHIBIT A hereto (the
"EXERCISE NOTICE"), of such Holder's election to exercise this Warrant, which
notice shall specify the number of Warrant Shares to be purchased, (ii) payment
to the Company of an amount equal to the Warrant Exercise Price multiplied by
the number of Warrant Shares as to which this Warrant is being exercised (the
"AGGREGATE EXERCISE PRICE") in cash or by certified check or wire transfer of
immediately available funds, and (iii) delivery to the Company of this Warrant
(or an indemnity and evidence with respect to this Warrant in the case of its
loss, theft, mutilation or destruction as provided in Section 11). In the event
of any exercise of the rights represented by this Warrant in compliance with
this Section 2(a), the Company shall, on or before the tenth (10th) Business Day
following the date of its receipt of the Exercise Notice, the Aggregate Exercise
Price and this Warrant (or an indemnity and evidence with respect to this
Warrant in the case of its loss, theft, mutilation or destruction as provided in
Section 11) (the "EXERCISE DELIVERY DOCUMENTS"), deliver at the Company's
expense to the Holder, a certificate or certificates for the Warrant Shares so
purchased, in such denominations as may be requested by Holder and registered in
the name of Holder. Upon the Company's receipt of the Exercise Delivery
Documents, the Holder shall be deemed for all corporate purposes to have become
the holder of record of the Warrant Shares with respect to which this Warrant
has been exercised, irrespective of the date of delivery of certificates
evidencing such Warrant Shares.
(b) Unless the rights represented by this Warrant shall have
expired or shall have been fully exercised, the Company shall, as soon as
practicable and in no event later than ten (10) Business Days after any exercise
and at its own expense, issue a new Warrant identical in all respects to this
Warrant exercised, except it shall represent rights to purchase the number of
Warrant Shares purchasable immediately prior to such exercise under this Warrant
exercised, less the number of Warrant Shares with respect to which this Warrant
is exercised.
(c) No fractional shares of Common Stock are to be issued upon the
exercise of this Warrant, but rather the number of shares of Common Stock issued
upon exercise of this Warrant shall be rounded up or down to the nearest whole
number.
Section 3. COVENANTS. The Company hereby represents, covenants and agrees
as follows:
(a) This Warrant is, and any Warrants issued in substitution for
or replacement of this Warrant will upon issuance be, duly authorized and
validly issued.
(b) All Warrant Shares which may be issued upon the exercise of
the rights
Page 2 of 9
represented by this Warrant will, upon issuance, be validly issued, fully paid
and nonassessable and free from all taxes, liens and charges with respect to the
issue thereof.
(c) Prior to exercise of this Warrant, the Company shall secure
the listing of the Warrant Shares upon each national securities exchange or
market, if any, upon which shares of Common Stock are then listed (subject to
official notice of issuance upon exercise of this Warrant) and shall maintain
such listing of the Warrant Shares so long as any other shares of Common Stock
shall be so listed.
(d) The Company has full power and authority to enter into this
Warrant, and to issue and deliver this Warrant and the Warrant Shares, and to
incur and perform fully the obligations provided herein, all of which have been
duly authorized by all necessary corporate action.
(e) This Warrant has been duly executed and delivered and is the
valid and binding obligation of the Company enforceable in accordance with its
terms.
Section 4. TAXES. The Company shall pay any and all taxes, except income
taxes, which may be payable with respect to the issuance and delivery of Warrant
Shares upon exercise of this Warrant.
Section 5. HOLDER NOT DEEMED A STOCKHOLDER. Except as otherwise
specifically provided herein, this Warrant shall not entitle Holder to vote or
receive dividends or any other rights of a stockholder of the Company,
including, without limitation, any right to vote, give or withhold consent to
any corporate action (whether a reorganization, issue of stock, reclassification
of stock, consolidation, merger, conveyance or otherwise), receive notice of
meetings or receive subscription rights.
Section 6. REPRESENTATIONS OF HOLDER. The Holder, by the acceptance
hereof, represents and warrants that it (a) is acquiring this Warrant and the
Warrant Shares solely for its own account, for investment and not with a view
towards the distribution or resale thereof in violation of the Securities Act or
any applicable state securities laws, (b) has received such documents, materials
and information as Holder deems necessary or appropriate for evaluation of the
acquisition of the Warrant and the Warrant Shares, (c) is an "accredited
investor" as such term is defined in Rule 501 of Regulation D promulgated under
the Securities Act and has such knowledge and experience in financial and
business matters that it is capable of evaluating the merits and risks of an
investment in the Warrant and the Warrant Shares, (d) understands that no U.S.
federal, state or regulatory agency has recommended, approved or endorsed, or
passed upon the fairness or suitability of, an investment in the Warrant or
Warrant Shares or passed up on the accuracy or adequacy of the information
provided to Holder, and (e) recognizes that an investment in the Warrant Shares
involves a high degree of financial risk, can bear the economic risk of losing
its entire investment in the Warrant Shares and has sought, or will seek, such
accounting, legal and tax advice as it has considered, or will consider,
necessary to make an informed investment decision with respect to its
acquisition of this Warrant and Warrant Shares. If Holder cannot make any of the
foregoing representations at the time of exercising this Warrant because it
would be factually incorrect, Holder shall so notify the Company, and it shall
be a condition to Holder's exercise of this Warrant that the Company receive
such other assurances as the Company considers reasonably necessary to assure
the Company that the issuance of the
Page 3 of 9
Warrant Shares upon exercise of this Warrant shall not violate the Securities
Act or any state securities laws.
Section 7. RESTRICTION ON TRANSFER.
(a) This Warrant and the rights granted to Holder are
transferable, in whole or in part, upon surrender of this Warrant, together with
a properly executed warrant power in the form of EXHIBIT B attached hereto;
provided, however, that any transfer or assignment shall be subject to the
approval of the Company, such approval not to be unreasonably withheld and the
conditions set forth in Section 7(b) below.
(b) Holder represents and warrants that it understands that,
except as set forth in Section 8 below, the Company is under no obligation to
register this Warrant or the Warrant Shares under the Securities Act and that
the Warrant and Warrant Shares will be characterized as "restricted securities"
under the Securities Act because they are being acquired from the Company in a
transaction not involving a public offering. Holder also represents and warrants
that it understands that neither the Warrant nor the Warrant Shares may be
offered for sale, sold, assigned or transferred unless (a) subsequently
registered pursuant to an effective registration statement under the Securities
Act and applicable state securities laws or (b) Holder shall have delivered to
the Company a written opinion of counsel, in form, substance and scope
reasonably acceptable to the Company, to the effect that the securities to be
offered for sale, sold, assigned or transferred are being offered for sale,
sold, assigned or transferred pursuant to an exemption from such registration.
(c) Unless upon their issuance such Warrant Shares are then
registered under the Securities Act pursuant to an effective registration
statement, any certificates representing Warrant Shares issued in accordance
with this Warrant shall bear a legend substantially in the following form:
THE SHARES OF COMMON STOCK OF ELECTRIC CITY CORP. (THE "COMPANY")
REPRESENTED BY THIS CERTIFICATE (THE "SHARES") HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND
MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED UNLESS (A)
SUBSEQUENTLY REGISTERED PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS OR (B) THE
HOLDER HEREOF SHALL HAVE DELIVERED TO THE COMPANY A WRITTEN OPINION OF
COUNSEL, IN FORM, SUBSTANCE AND SCOPE REASONABLY ACCEPTABLE TO THE COMPANY,
TO THE EFFECT THAT THE SHARES TO BE OFFERED FOR SALE, SOLD, TRANSFERRED OR
ASSIGNED ARE BEING OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED PURSUANT
TO AN EXEMPTION FROM SUCH REGISTRATION.
Section 8. THIS SECTION HAS BEEN LEFT BLANK INTENTIONALLY.
Page 4 of 9
Section 9.
(a) ADJUSTMENT OF WARRANT EXERCISE PRICE AND NUMBER OF WARRANT
SHARES UPON SUBDIVISION OR COMBINATION OF COMPANY STOCK. If the Company at any
time after the date of issuance of this Warrant subdivides (by any stock split
or stock dividend of its Common Stock) its outstanding shares of Common Stock
into a greater number of shares of Common Stock, the Warrant Exercise Price in
effect immediately prior to such subdivision will be proportionately reduced and
the number of Warrant Shares obtainable upon exercise of this Warrant will be
proportionately increased. If the Company at any time after the date of issuance
of this Warrant combines (by reverse stock split or otherwise) its outstanding
shares of Common Stock into a smaller number of shares of Common Stock, the
Warrant Exercise Price in effect immediately prior to such combination will be
proportionately increased and the number of Warrant Shares obtainable upon
exercise of this Warrant will be proportionately decreased. Any adjustment under
this Section 9(a) shall become effective at the close of business on the date
the subdivision or combination becomes effective.
(b) NOTICES. Upon any adjustment of the Warrant Exercise Price or
number of issuable Warrant Shares pursuant to Section 9(a), the Company will
give written notice thereof to the Holder, setting forth in reasonable detail
the calculation of such adjustment.
Section 10. REORGANIZATION, RECLASSIFICATION, CONSOLIDATION, MERGER OR
SALE. If at any time, as a result of:
(i) a capital reorganization or reclassification (other than
a subdivision or combination provided for in Section 9), or
(ii) a merger or consolidation of the Company with another
corporation (whether or not the Company is the surviving corporation) or sale of
substantially all of the Company's stock, the Common Stock issuable upon
exercise of this Warrant shall be changed into or exchanged for the same or a
different number of shares of any class or classes of capital stock of the
Company or any other Person, or other securities convertible into such shares,
then, as a part of such reorganization, reclassification, merger, consolidation
or sale, appropriate adjustments shall be made in the terms of this Warrant (or
of any securities into which this Warrant is exercised or for which this Warrant
is exchanged), so that Holder shall thereafter be entitled to receive, upon
exercise of this Warrant or of such substitute securities, the kind and amount
of shares of stock, other securities, money and property which Holder would have
received at the time of such capital reorganization, reclassification, merger,
consolidation or sale, if Holder had exercised this Warrant immediately prior to
such capital reorganization, reclassification, merger, consolidation or sale.
This Warrant, including, without limitation, the provisions of this Section 10
will be binding upon any entity succeeding to the Company by merger,
consolidation or acquisition of all or substantially all of the Company's
assets. The provisions of this Section 10 shall similarly apply to (x)
successive capital reorganizations, reclassifications, mergers, consolidations
and sale and (y) the securities of any other Person that are at the time
receivable upon the exercise of this Warrant.
Page 5 of 9
Section 11. LOST, STOLEN, MUTILATED OR DESTROYED WARRANT. If this Warrant
is lost, stolen, mutilated or destroyed, the Company shall promptly, on receipt
of evidence reasonably satisfactory to the Company of the ownership of, and the
loss, theft, mutilation or destruction of, this Warrant, and an indemnity
reasonably satisfactory to the Company (or in the case of a mutilated Warrant,
the Warrant), issue in lieu thereof a new Warrant of like denomination and tenor
as this Warrant so lost, stolen, mutilated or destroyed.
Section 12. NOTICE. Any notices, consents, waivers or other communications
required or permitted to be given under the terms of this Warrant must be in
writing and will be deemed to have been made upon receipt when delivered
personally, via pre-paid overnight courier or by registered or certified mail,
postage pre-paid, return receipt requested. The addresses for such
communications shall be:
If to the Company:
Electric City Corp.
0000 Xxxxxxxxx Xxxx
Xxx Xxxxx Xxxxxxx, XX 00000
Attention: General Counsel
If to the Holder:
Delano Group Securities
000 Xxxx Xxxxxxx Xxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxx Xxxxxx
With a copy to:
-------------------------------
-------------------------------
-------------------------------
Attention:
------------------
or such other address as the Company or Holder, as applicable, may specify in
written notice given to the other party in accordance with this Section 12.
Section 13. AMENDMENTS. This Warrant and any term hereof may be changed,
waived, discharged, or terminated only by an instrument in writing signed by the
party hereto against which enforcement of such change, waiver, discharge or
termination is sought.
Section 14. EXPIRATION. This Warrant, in all events, shall be wholly void
and of no effect after 5:00 P.M. Eastern Standard Time on the Expiration Date,
except that notwithstanding any other provisions hereof, the provisions of
Sections 7 and 8 shall continue in full force and effect after such date as to
any Warrant Shares or other securities issued upon the exercise of this Warrant.
Page 6 of 9
Section 15. SUCCESSORS AND ASSIGNS. The terms and provisions of this
Warrant shall inure to the benefit of, and be binding upon, the Company and the
Holder and their respective successors and permitted assigns.
Section 16. DESCRIPTIVE HEADINGS; GOVERNING LAW; ARBITRATION. The
descriptive headings of the several sections and paragraphs of this Warrant are
inserted for convenience only and do not constitute a part of this Warrant. All
questions concerning the construction, validity, enforcement and interpretation
of this Warrant shall be governed by the internal laws of the State of Illinois,
without giving effect to any choice of law or conflict of law provision or rule
(whether of the State of Illinois or any other jurisdiction) that would cause
the application of the laws of any jurisdiction other than the State of
Illinois.
In the event of any and all disagreements and controversies arising from this
Warrant, such disagreements and controversies shall be subject to binding
arbitration as arbitrated in accordance with the then current Commercial
Arbitration Rules of the American Arbitration Association in Chicago, Illinois
before one neutral arbitrator. Either party may apply to the arbitrator seeking
injunctive relief until the arbitration award is rendered or the controversy is
otherwise resolved. Without waiving any remedy under this Warrant, either party
may also seek from any court having jurisdiction any interim or provisional
relief that is necessary to protect the rights or property of that party,
pending the establishment of the arbitral tribunal (or pending the arbitral
tribunal's determination of the merits of the controversy). In the event of any
such disagreement or controversy, neither party shall directly or indirectly
reveal, report, publish or disclose any information relating to such
disagreement or controversy to any person, firm or corporation not expressly
authorized by the other party to receive such information or use such
information or assist any other person in doing so, except to comply with actual
legal obligations of such party, or unless such disclosure is directly related
to an arbitration proceeding as provided herein, including, but not limited to,
the prosecution or defense of any claim in such arbitration. The costs and
expenses of the arbitration (excluding attorneys' fees) shall be paid by the
non-prevailing party or as determined by the arbitrator.
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by a
duly authorized officer, as of the 10th day of June, 2002.
ELECTRIC CITY CORP.
By: /s/ Xxxxxxx Xxxxxxx
--------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Chief Financial Officer
Page 7 of 9
EXHIBIT A TO WARRANT
SUBSCRIPTION FORM
TO BE EXECUTED BY THE REGISTERED HOLDER TO EXERCISE THIS WARRANT
ELECTRIC CITY CORP.
The undersigned Holder hereby exercises the right to purchase
_________________ of the shares of Common Stock ("WARRANT SHARES") of Electric
City Corp., a Delaware corporation (the "COMPANY"), evidenced by the attached
Warrant (the "WARRANT"). The Holder tenders herewith payment of the Aggregate
Exercise Price in full in the amount of $___________________ in the form of
cash, certified check or wire transfer of immediately available funds with
respect to _______________ Warrant Shares. Capitalized terms used herein and not
otherwise defined shall have the respective meanings set forth in the Warrant.
Date: _______________ __, 200_
Name of Holder
By:
-----------------------------------
Name:
-----------------------------
Title:
----------------------------
Page 8 of 9
EXHIBIT B TO WARRANT
FORM OF WARRANT POWER
FOR VALUE RECEIVED, the undersigned does hereby assign and transfer to
________________, a warrant to purchase ____________ shares of the Common Stock
of Electric City Corp., a Delaware corporation, represented by warrant
certificate no. _____, standing in the name of the undersigned on the books of
said corporation. The undersigned does hereby irrevocably constitute and appoint
_______________________, to transfer the warrants of said corporation, with full
power of substitution in the premises.
Dated: _________, 200_
-----------------------------------
By:
-----------------------------
Name:
-----------------------------
Its:
-----------------------------
Page 9 of 9
Exhibit 10.43 (4 of 4)
WARRANT
NEITHER THIS WARRANT NOR ANY SHARES OF COMMON STOCK ISSUABLE UPON THE EXERCISE
OF THIS WARRANT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR APPLICABLE STATE SECURITIES LAWS. SUCH SECURITIES MAY NOT BE OFFERED
FOR SALE, SOLD, TRANSFERRED OR ASSIGNED UNLESS (A) SUBSEQUENTLY REGISTERED
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF
1933, AS AMENDED, AND APPLICABLE STATE SECURITIES LAWS OR (B) THE HOLDER HEREOF
SHALL HAVE DELIVERED TO THE COMPANY A WRITTEN OPINION OF COUNSEL, IN FORM,
SUBSTANCE AND SCOPE REASONABLY ACCEPTABLE TO THE COMPANY, TO THE EFFECT THAT THE
SHARES TO BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED ARE BEING OFFERED
FOR SALE, SOLD, TRANSFERRED OR ASSIGNED PURSUANT TO AN EXEMPTION FROM SUCH
REGISTRATION.
ELECTRIC CITY CORP.
WARRANT TO PURCHASE COMMON STOCK
Warrant No.: 26 Number of Shares: 25,000
Original Date of Issuance: June 10, 2002
Electric City Corp., a Delaware corporation (the "COMPANY"), hereby certifies
that, for good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, Xxxxx X. Xxxxxxx, the registered holder hereof or its
permitted assigns registered on the books of the Company (the "HOLDER"), is
entitled, subject to the terms and conditions set forth below, to purchase from
the Company upon surrender of this Warrant, at any time or times on or after the
date hereof, but not after 5:00 P.M. Eastern Standard Time on October 16, 2005
(the "EXPIRATION DATE"), Twenty-Five Thousand (25,000) fully paid and
nonassessable shares (the "WARRANT SHARES") of the Company's common stock, par
value $0.0001 per share (the "COMMON STOCK"), at the exercise price per share
equal to $4.71, subject to adjustment as hereinafter provided (the "WARRANT
EXERCISE PRICE").
Section 1. DEFINITIONS. In addition to the capitalized terms defined
elsewhere herein, the following terms as used in this Warrant shall have the
following meanings:
(i) "BUSINESS DAY" means any day other than Saturday, Sunday or
other day on which commercial banks in the City of New York are authorized or
required by law to remain closed.
Page 1 of 9
(ii) "PERSON" means an individual, a limited liability company, a
partnership, a joint venture, a corporation, a trust, an unincorporated
organization or a government or any department or agency thereof.
(iii) "SECURITIES ACT" means the Securities Act of 1933, as amended.
Section 2. EXERCISE OF WARRANT.
(a) Subject to the terms and conditions hereof, this Warrant may
be exercised by the Holder, in whole or in part, during normal business hours on
any Business Day on or after the date hereof and prior to 5:00 P.M. Eastern
Standard Time on the Expiration Date by (i) delivery of a duly executed written
notice, in the form of the subscription notice attached as EXHIBIT A hereto (the
"EXERCISE NOTICE"), of such Holder's election to exercise this Warrant, which
notice shall specify the number of Warrant Shares to be purchased, (ii) payment
to the Company of an amount equal to the Warrant Exercise Price multiplied by
the number of Warrant Shares as to which this Warrant is being exercised (the
"AGGREGATE EXERCISE PRICE") in cash or by certified check or wire transfer of
immediately available funds, and (iii) delivery to the Company of this Warrant
(or an indemnity and evidence with respect to this Warrant in the case of its
loss, theft, mutilation or destruction as provided in Section 11). In the event
of any exercise of the rights represented by this Warrant in compliance with
this Section 2(a), the Company shall, on or before the tenth (10th) Business Day
following the date of its receipt of the Exercise Notice, the Aggregate Exercise
Price and this Warrant (or an indemnity and evidence with respect to this
Warrant in the case of its loss, theft, mutilation or destruction as provided in
Section 11) (the "EXERCISE DELIVERY DOCUMENTS"), deliver at the Company's
expense to the Holder, a certificate or certificates for the Warrant Shares so
purchased, in such denominations as may be requested by Holder and registered in
the name of Holder. Upon the Company's receipt of the Exercise Delivery
Documents, the Holder shall be deemed for all corporate purposes to have become
the holder of record of the Warrant Shares with respect to which this Warrant
has been exercised, irrespective of the date of delivery of certificates
evidencing such Warrant Shares.
(b) Unless the rights represented by this Warrant shall have
expired or shall have been fully exercised, the Company shall, as soon as
practicable and in no event later than ten (10) Business Days after any exercise
and at its own expense, issue a new Warrant identical in all respects to this
Warrant exercised, except it shall represent rights to purchase the number of
Warrant Shares purchasable immediately prior to such exercise under this Warrant
exercised, less the number of Warrant Shares with respect to which this Warrant
is exercised.
(c) No fractional shares of Common Stock are to be issued upon the
exercise of this Warrant, but rather the number of shares of Common Stock issued
upon exercise of this Warrant shall be rounded up or down to the nearest whole
number.
Section 3. COVENANTS. The Company hereby represents, covenants and agrees
as follows:
(a) This Warrant is, and any Warrants issued in substitution for
or replacement of this Warrant will upon issuance be, duly authorized and
validly issued.
(b) All Warrant Shares which may be issued upon the exercise of
the rights
Page 2 of 9
represented by this Warrant will, upon issuance, be validly issued, fully
paid and nonassessable and free from all taxes, liens and charges with respect
to the issue thereof.
(c) Prior to exercise of this Warrant, the Company shall secure
the listing of the Warrant Shares upon each national securities exchange or
market, if any, upon which shares of Common Stock are then listed (subject to
official notice of issuance upon exercise of this Warrant) and shall maintain
such listing of the Warrant Shares so long as any other shares of Common Stock
shall be so listed.
(d) The Company has full power and authority to enter into this
Warrant, and to issue and deliver this Warrant and the Warrant Shares, and to
incur and perform fully the obligations provided herein, all of which have been
duly authorized by all necessary corporate action.
(e) This Warrant has been duly executed and delivered and is the
valid and binding obligation of the Company enforceable in accordance with its
terms.
Section 4. TAXES. The Company shall pay any and all taxes, except income
taxes, which may be payable with respect to the issuance and delivery of Warrant
Shares upon exercise of this Warrant.
Section 5. HOLDER NOT DEEMED A STOCKHOLDER. Except as otherwise
specifically provided herein, this Warrant shall not entitle Holder to vote or
receive dividends or any other rights of a stockholder of the Company,
including, without limitation, any right to vote, give or withhold consent to
any corporate action (whether a reorganization, issue of stock, reclassification
of stock, consolidation, merger, conveyance or otherwise), receive notice of
meetings or receive subscription rights.
Section 6. REPRESENTATIONS OF HOLDER. The Holder, by the acceptance
hereof, represents and warrants that it (a) is acquiring this Warrant and the
Warrant Shares solely for its own account, for investment and not with a view
towards the distribution or resale thereof in violation of the Securities Act or
any applicable state securities laws, (b) has received such documents, materials
and information as Holder deems necessary or appropriate for evaluation of the
acquisition of the Warrant and the Warrant Shares, (c) is an "accredited
investor" as such term is defined in Rule 501 of Regulation D promulgated under
the Securities Act and has such knowledge and experience in financial and
business matters that it is capable of evaluating the merits and risks of an
investment in the Warrant and the Warrant Shares, (d) understands that no U.S.
federal, state or regulatory agency has recommended, approved or endorsed, or
passed upon the fairness or suitability of, an investment in the Warrant or
Warrant Shares or passed up on the accuracy or adequacy of the information
provided to Holder, and (e) recognizes that an investment in the Warrant Shares
involves a high degree of financial risk, can bear the economic risk of losing
its entire investment in the Warrant Shares and has sought, or will seek, such
accounting, legal and tax advice as it has considered, or will consider,
necessary to make an informed investment decision with respect to its
acquisition of this Warrant and Warrant Shares. If Holder cannot make any of the
foregoing representations at the time of exercising this Warrant because it
would be factually incorrect, Holder shall so notify the Company, and it shall
be a condition to Holder's exercise of this Warrant that the Company receive
such other assurances as the Company considers reasonably necessary to assure
the Company that the issuance of the
Page 3 of 9
Warrant Shares upon exercise of this Warrant shall not violate the Securities
Act or any state securities laws.
Section 7. RESTRICTION ON TRANSFER.
(a) This Warrant and the rights granted to Holder are
transferable, in whole or in part, upon surrender of this Warrant, together with
a properly executed warrant power in the form of EXHIBIT B attached hereto;
provided, however, that any transfer or assignment shall be subject to the
approval of the Company, such approval not to be unreasonably withheld and the
conditions set forth in Section 7(b) below.
(b) Holder represents and warrants that it understands that,
except as set forth in Section 8 below, the Company is under no obligation to
register this Warrant or the Warrant Shares under the Securities Act and that
the Warrant and Warrant Shares will be characterized as "restricted securities"
under the Securities Act because they are being acquired from the Company in a
transaction not involving a public offering. Holder also represents and warrants
that it understands that neither the Warrant nor the Warrant Shares may be
offered for sale, sold, assigned or transferred unless (a) subsequently
registered pursuant to an effective registration statement under the Securities
Act and applicable state securities laws or (b) Holder shall have delivered to
the Company a written opinion of counsel, in form, substance and scope
reasonably acceptable to the Company, to the effect that the securities to be
offered for sale, sold, assigned or transferred are being offered for sale,
sold, assigned or transferred pursuant to an exemption from such registration.
(c) Unless upon their issuance such Warrant Shares are then
registered under the Securities Act pursuant to an effective registration
statement, any certificates representing Warrant Shares issued in accordance
with this Warrant shall bear a legend substantially in the following form:
THE SHARES OF COMMON STOCK OF ELECTRIC CITY CORP. (THE "COMPANY")
REPRESENTED BY THIS CERTIFICATE (THE "SHARES") HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND
MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED UNLESS (A)
SUBSEQUENTLY REGISTERED PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS OR (B) THE
HOLDER HEREOF SHALL HAVE DELIVERED TO THE COMPANY A WRITTEN OPINION OF
COUNSEL, IN FORM, SUBSTANCE AND SCOPE REASONABLY ACCEPTABLE TO THE COMPANY,
TO THE EFFECT THAT THE SHARES TO BE OFFERED FOR SALE, SOLD, TRANSFERRED OR
ASSIGNED ARE BEING OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED PURSUANT
TO AN EXEMPTION FROM SUCH REGISTRATION.
Section 8. THIS SECTION HAS BEEN LEFT BLANK INTENTIONALLY.
Page 4 of 9
Section 9.
(a) ADJUSTMENT OF WARRANT EXERCISE PRICE AND NUMBER OF WARRANT
SHARES UPON SUBDIVISION OR COMBINATION OF COMPANY STOCK. If the Company at any
time after the date of issuance of this Warrant subdivides (by any stock split
or stock dividend of its Common Stock) its outstanding shares of Common Stock
into a greater number of shares of Common Stock, the Warrant Exercise Price in
effect immediately prior to such subdivision will be proportionately reduced and
the number of Warrant Shares obtainable upon exercise of this Warrant will be
proportionately increased. If the Company at any time after the date of issuance
of this Warrant combines (by reverse stock split or otherwise) its outstanding
shares of Common Stock into a smaller number of shares of Common Stock, the
Warrant Exercise Price in effect immediately prior to such combination will be
proportionately increased and the number of Warrant Shares obtainable upon
exercise of this Warrant will be proportionately decreased. Any adjustment under
this Section 9(a) shall become effective at the close of business on the date
the subdivision or combination becomes effective.
(b) NOTICES. Upon any adjustment of the Warrant Exercise Price or
number of issuable Warrant Shares pursuant to Section 9(a), the Company will
give written notice thereof to the Holder, setting forth in reasonable detail
the calculation of such adjustment.
Section 10. REORGANIZATION, RECLASSIFICATION, CONSOLIDATION, MERGER OR
SALE. If at any time, as a result of:
(i) a capital reorganization or reclassification (other than
a subdivision or combination provided for in Section 9), or
(ii) a merger or consolidation of the Company with another
corporation (whether or not the Company is the surviving corporation) or sale of
substantially all of the Company's stock, the Common Stock issuable upon
exercise of this Warrant shall be changed into or exchanged for the same or a
different number of shares of any class or classes of capital stock of the
Company or any other Person, or other securities convertible into such shares,
then, as a part of such reorganization, reclassification, merger, consolidation
or sale, appropriate adjustments shall be made in the terms of this Warrant (or
of any securities into which this Warrant is exercised or for which this Warrant
is exchanged), so that Holder shall thereafter be entitled to receive, upon
exercise of this Warrant or of such substitute securities, the kind and amount
of shares of stock, other securities, money and property which Holder would have
received at the time of such capital reorganization, reclassification, merger,
consolidation or sale, if Holder had exercised this Warrant immediately prior to
such capital reorganization, reclassification, merger, consolidation or sale.
This Warrant, including, without limitation, the provisions of this Section 10
will be binding upon any entity succeeding to the Company by merger,
consolidation or acquisition of all or substantially all of the Company's
assets. The provisions of this Section 10 shall similarly apply to (x)
successive capital reorganizations, reclassifications, mergers, consolidations
and sale and (y) the securities of any other Person that are at the time
receivable upon the exercise of this Warrant.
Page 5 of 9
Section 11. LOST, STOLEN, MUTILATED OR DESTROYED WARRANT. If this Warrant
is lost, stolen, mutilated or destroyed, the Company shall promptly, on receipt
of evidence reasonably satisfactory to the Company of the ownership of, and the
loss, theft, mutilation or destruction of, this Warrant, and an indemnity
reasonably satisfactory to the Company (or in the case of a mutilated Warrant,
the Warrant), issue in lieu thereof a new Warrant of like denomination and tenor
as this Warrant so lost, stolen, mutilated or destroyed.
Section 12. NOTICE. Any notices, consents, waivers or other communications
required or permitted to be given under the terms of this Warrant must be in
writing and will be deemed to have been made upon receipt when delivered
personally, via pre-paid overnight courier or by registered or certified mail,
postage pre-paid, return receipt requested. The addresses for such
communications shall be:
If to the Company:
Electric City Corp.
0000 Xxxxxxxxx Xxxx
Xxx Xxxxx Xxxxxxx, XX 00000
Attention: General Counsel
If to the Holder:
Delano Group Securities
000 Xxxx Xxxxxxx Xxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxx
With a copy to:
-------------------------------
-------------------------------
-------------------------------
Attention:
------------------
or such other address as the Company or Holder, as applicable, may specify in
written notice given to the other party in accordance with this Section 12.
Section 13. AMENDMENTS. This Warrant and any term hereof may be changed,
waived, discharged, or terminated only by an instrument in writing signed by the
party hereto against which enforcement of such change, waiver, discharge or
termination is sought.
Section 14. EXPIRATION. This Warrant, in all events, shall be wholly void
and of no effect after 5:00 P.M. Eastern Standard Time on the Expiration Date,
except that notwithstanding any other provisions hereof, the provisions of
Sections 7 and 8 shall continue in full force and effect after such date as to
any Warrant Shares or other securities issued upon the exercise of this Warrant.
Page 6 of 9
Section 15. SUCCESSORS AND ASSIGNS. The terms and provisions of this
Warrant shall inure to the benefit of, and be binding upon, the Company and the
Holder and their respective successors and permitted assigns.
Section 16. DESCRIPTIVE HEADINGS; GOVERNING LAW; ARBITRATION. The
descriptive headings of the several sections and paragraphs of this Warrant are
inserted for convenience only and do not constitute a part of this Warrant. All
questions concerning the construction, validity, enforcement and interpretation
of this Warrant shall be governed by the internal laws of the State of Illinois,
without giving effect to any choice of law or conflict of law provision or rule
(whether of the State of Illinois or any other jurisdiction) that would cause
the application of the laws of any jurisdiction other than the State of
Illinois.
In the event of any and all disagreements and controversies arising from this
Warrant, such disagreements and controversies shall be subject to binding
arbitration as arbitrated in accordance with the then current Commercial
Arbitration Rules of the American Arbitration Association in Chicago, Illinois
before one neutral arbitrator. Either party may apply to the arbitrator seeking
injunctive relief until the arbitration award is rendered or the controversy is
otherwise resolved. Without waiving any remedy under this Warrant, either party
may also seek from any court having jurisdiction any interim or provisional
relief that is necessary to protect the rights or property of that party,
pending the establishment of the arbitral tribunal (or pending the arbitral
tribunal's determination of the merits of the controversy). In the event of any
such disagreement or controversy, neither party shall directly or indirectly
reveal, report, publish or disclose any information relating to such
disagreement or controversy to any person, firm or corporation not expressly
authorized by the other party to receive such information or use such
information or assist any other person in doing so, except to comply with actual
legal obligations of such party, or unless such disclosure is directly related
to an arbitration proceeding as provided herein, including, but not limited to,
the prosecution or defense of any claim in such arbitration. The costs and
expenses of the arbitration (excluding attorneys' fees) shall be paid by the
non-prevailing party or as determined by the arbitrator.
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by a
duly authorized officer, as of the 10th day of June, 2002.
ELECTRIC CITY CORP.
By: /s/ Xxxxxxx Xxxxxxx
-------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Chief Financial Officer
Page 7 of 9
EXHIBIT A TO WARRANT
SUBSCRIPTION FORM
TO BE EXECUTED BY THE REGISTERED HOLDER TO EXERCISE THIS WARRANT
ELECTRIC CITY CORP.
The undersigned Holder hereby exercises the right to purchase
_________________ of the shares of Common Stock ("WARRANT SHARES") of Electric
City Corp., a Delaware corporation (the "COMPANY"), evidenced by the attached
Warrant (the "WARRANT"). The Holder tenders herewith payment of the Aggregate
Exercise Price in full in the amount of $___________________ in the form of
cash, certified check or wire transfer of immediately available funds with
respect to _______________ Warrant Shares. Capitalized terms used herein and not
otherwise defined shall have the respective meanings set forth in the Warrant.
Date: _______________ __, 200_
Name of Holder
By:
-----------------------------------
Name:
------------------------------
Title:
-----------------------------
Page 8 of 9
EXHIBIT B TO WARRANT
FORM OF WARRANT POWER
FOR VALUE RECEIVED, the undersigned does hereby assign and transfer to
________________, a warrant to purchase ____________ shares of the Common Stock
of Electric City Corp., a Delaware corporation, represented by warrant
certificate no. _____, standing in the name of the undersigned on the books of
said corporation. The undersigned does hereby irrevocably constitute and appoint
_______________________, to transfer the warrants of said corporation, with full
power of substitution in the premises.
Dated: _________, 200_
-----------------------------------
By:
-------------------------------
Name:
-----------------------------
Its:
------------------------------
Page 9 of 9
