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EXHIBIT 6
FORM OF VOTING AGREEMENT
This VOTING AGREEMENT (this "Agreement"), dated as of April __,
2001, is made by and among Xxxx, LLC, a ______________ limited liability
company, NCVC, L.L.C., a _____________ limited liability company, DYDX, LLC, a
_____________ limited liability company (each a "Stockholder," and collectively,
the "Stockholders"), and Newcourt Capital USA, Inc., a Delaware corporation
("Lender").
WITNESSETH
WHEREAS, Lender intends to loan to Electric City Corp., a
Delaware corporation (the "Company") up to $2,000,000 aggregate principal amount
pursuant to that certain Convertible Senior Subordinated Promissory Note and
Warrant Purchase Agreement (as it may be amended from time to time, the "Note
Purchase Agreement");
WHEREAS, Xxxx, LLC, is the holder of record of 7,431,502 shares
of common stock of the Company (the "Xxxx Shares"), NCVC, L.L.C., is the holder
of record of 4,488,999 shares of common stock of the Company (the NCVC Shares")
and DYDX, LLC, is the holder of record of 3,017,499 shares of common stock of
the Company (the "DYDX Shares" and collectively with the Xxxx Shares and the
NCVC Shares the "Shares"); and
WHEREAS, it is a condition to the obligation of Lender to loan
to the Company up to $2,000,000 pursuant to the Note Purchase Agreement that the
parties hereto execute and deliver this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and for other
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto agree as follows:
Section 1. Agreement to Vote; Proxy.
(a) Each Stockholder agrees with, and covenants to, Lender that
at any meeting of stockholders of the Company called to vote upon an amendment
of the Company's certificate of incorporation to increase the Company's
authorized common stock to 75,000,000 shares (the "Charter Amendment"), or at
which a vote, consent or other approval with respect to the Charter Amendment is
sought, and at every adjournment thereof, Stockholder shall vote (or cause to be
voted) or shall consent, execute a consent or cause to be executed a consent in
respect of the Xxxx Shares, NCVC Shares or DYDX Shares, as applicable, in favor
of the Charter Amendment.
(b) Each Stockholder agrees with, and covenants to, Lender that
at any meeting of stockholders of the Company called to vote upon the Securities
Purchase Agreement and the exhibits thereto, all of which are attached hereto as
Exhibit A, and the transactions contemplated thereby (the "Series A Preferred
Stock Transaction"), or at which a vote, consent or other approval with respect
to the Series A Preferred Stock Transaction is sought, and at every adjournment
thereof, Stockholder shall vote (or cause to be voted) or shall consent, execute
a
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consent or cause to be executed a consent in respect of the Xxxx Shares, NCVC
Shares or DYDX Shares, as applicable, in favor of the Series A Preferred Stock
Transaction.
(c) Each Stockholder hereby grants to, and appoints, Xxxxxxx
Xxxxxx and Xxx Xxxxxx and any other individual who is designated by Lender an
irrevocable proxy, coupled with an interest, and attorney-in-fact (with full
power of substitution), for and in the name, place and stead of such
Stockholder, with respect to the Xxxx Shares, the NCVC Shares or the DYDX
Shares, as applicable, to vote such Shares, or grant or execute a consent or
approval, in the complete discretion of Lender, at any meeting of stockholders
of the Company or at any adjournment thereof or in any other circumstances upon
which its vote, consent or other approval is sought in accordance with
paragraphs (a) or (b) of this Section 1. Such irrevocable proxy is executed and
intended to be irrevocable in accordance with the provisions of the Delaware
General Corporation Law. This Agreement, including the provisions of this
Section 1, shall be recorded in the books and records of the Company.
(d) From time to time, at the request of Lender and without
further consideration, each Stockholder shall execute and deliver to Lender such
documents and take such action as Lender may reasonably request in order to
consummate the transactions contemplated hereby.
Section 2. Representations and Warranties of Stockholders. Each
Stockholder represents and warrants to Lender as follows:
(a) Stockholder has all necessary power and authority to execute
and deliver this Agreement, to perform its obligations hereunder and to
consummate the transactions contemplated hereby.
(b) This Agreement has been duly authorized, validly executed
and delivered by Stockholder and constitutes a legal, valid and binding
agreement of Stockholder, enforceable against Stockholder in accordance with its
terms.
(c) Stockholder is the sole record owner of and has good and
valid title to the Xxxx Shares, the NCVC Shares or the DYDX Shares, as
applicable. Stockholder has the power to vote, dispose of and otherwise transfer
the Xxxx Shares, the NCVC Shares or the DYDX Shares, as applicable.
Section 3. Governing Law. This Agreement shall be governed by
the internal laws of the State of Delaware without regard to the principles of
conflicts of law.
Section 4. Notices. Notices under this Agreement shall be deemed
to be duly given to a party hereto when delivered to such party in person, by
cable, telegram, telex or facsimile, by nationally recognized overnight courier
or by registered or certified mail (postage prepaid, return receipt requested)
in writing at the address set forth for such party on the signature page hereto.
Section 5. Amendments. This Agreement may be amended only by a
written instrument duly executed by Lender and the Stockholders.
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Section 6. Assignment. Notwithstanding any other provision of
this Agreement, this Agreement shall not be assignable by any party hereto.
Subject to the preceding sentence, this Agreement will be binding upon, inure to
the benefit of and be enforceable against, (a) as to each Stockholder,
Stockholder and Stockholder's beneficiaries and representatives, and (b) Lender
and its successors and affiliates. This Agreement and the obligations of each
Stockholder hereunder shall attach to such Stockholder's Shares and shall be
binding upon any person or entity to which legal or beneficial ownership of such
Shares shall pass, whether by operation of law or otherwise, including
Stockholder's heirs, guardians, administrators or successors.
Section 7. Counterparts. This Agreement may be executed in one
or more counterparts, all of which shall be considered one and the same
agreement, and shall become effective when one or more of the counterparts have
been signed by each of the parties and delivered to the other parties, it being
understood that all parties need not sign the same counterpart.
Section 8. Specific Performance. Each Stockholder and Lender
acknowledge that this Agreement and the Shares are unique and that no party will
have an adequate remedy at law if any other party breaches any covenant herein
or fails to perform its obligations hereunder. Accordingly, Stockholder and
Lender agree that the other shall have the right, in addition to any other
rights that it may have, to specific performance and equitable injunctive relief
if the other party shall fail or threaten to fail to perform any of its
obligations under this Agreement. Each Stockholder agrees that it will not seek,
and agrees to waive any requirement for, the securing or posting of a bond in
connection with the seeking or obtaining of such equitable relief by Lender. In
addition to all other rights or remedies to which Lender may be entitled, in the
event of a default in any Stockholder's performance of its obligations under
this Agreement, such Stockholder agrees that it shall be liable to Lender for
all litigation costs and attorneys' fees incurred by Lender in connection with
the enforcement of any of its rights or remedies against such Stockholder.
[SIGNATURE PAGE TO FOLLOW]
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IN WITNESS WHEREOF, each of the parties has executed or caused
this Agreement to be executed on its behalf by its representatives thereunto
duly authorized, all as of the day and year first above written.
NEWCOURT CAPITAL USA, INC.
By:
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Name:
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Title:
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Address: c/o The CIT Group
Attn: Xxx Xxxxxx or Xxxxxxx Xxxxxx
0000 Xxxxxx xx xxx Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Fax: 000-000-0000
XXXX, LLC, a ________ limited liability
company
By:
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Xxxxxx Xxxxxx, its sole member
Address:
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Fax No.:
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NCVC, L.L.C., a _________limited
liability company
By:
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Name:
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Title:
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Address:
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Fax No.:
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DYDX, LLC, a _______limited liability
company
By:
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Name:
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Title:
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Address:
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Fax No.:
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[SIGNATURE PAGE TO VOTING AGREEMENT]
