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EXHIBIT 5
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement, dated as of April 18, 2001 (as it
may be amended from time to time, this "Agreement"), is made by and among
Electric City Corp., a Delaware corporation (the "Company"), and Newcourt
Capital Securities, Inc., a Delaware corporation ("Holder", together with the
Company, the "Parties").
WITNESSETH
WHEREAS, Holder intends to loan to 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, the parties intend for the Company to issue in return for such
advances one or more convertible senior subordinated promissory notes
(individually, as it may be amended from time to time, a "Note" and
collectively, the "Notes") and certain warrants to purchase shares of Common
Stock of the Company (as it may be amended from time to time, the "Warrants");
and
WHEREAS, it is a condition to the obligation of Holder to loan to the
Company up to $2,000,000 pursuant to the Note Purchase Agreement that the
Parties 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 agree as follows:
ARTICLE I
DEFINITIONS
1.1 Definitions. All terms capitalized but not defined herein shall have
the meaning attributable to such terms in the Note Purchase Agreement, except
where the context otherwise requires. The following additional terms when used
in this Agreement, including its preamble and recitals, shall, except where the
context otherwise requires, have the following respective meanings, such
meanings to be equally applicable to the singular and plural forms thereof:
"Agreement" shall have the meaning set forth in the preamble of
this Agreement.
"Commission" means the United States Securities and Exchange
Commission or other governmental authority at the time administering the
Securities Act.
"Common Stock" means and includes the Company's authorized common
stock, par value $.0001 per share.
"Company" shall have the meaning set forth in the preamble of
this Agreement.
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"Eligible Securities" means (i) the shares of Common Stock issued
upon conversion of any outstanding principal or accrued interest under the
Notes pursuant to Section 4.2 of such Notes; (ii) the shares of Common Stock
issued or issuable upon exercise of the Warrants; and (iii) any other shares of
Common Stock of the Company issued as (or issuable upon the conversion or
exercise of any warrant, right or other security that is issued as) a dividend
or other distribution with respect to or in exchange for or in replacement of,
the shares described in clauses (i) and (ii) and this clause (iii); provided,
however, that the foregoing definition shall exclude in all cases any Eligible
Securities sold by a Holder in a transaction in which its rights under this
Agreement are not also assigned.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and any similar or successor federal statute, and the rules and
regulations of the Commission thereunder, all as the same may be in effect at
the time.
"Holder" means have the meaning set forth in the preamble of
this Agreement.
"Note" or "Notes" shall have the meaning set forth in the
recitals hereof.
"Note Purchase Agreement" shall have the meaning set forth in the
recitals hereof.
"Parties" shall have the meaning set forth in the preamble of
this Agreement.
"Registration Request" shall have the meaning set forth in
Section 2.1 hereof.
"Securities Act" means the Securities Act of 1933, as amended,
and any similar or successor federal statute, and the rules and regulations of
the Commission thereunder, all as the same may be in effect at the time.
"Warrants" shall have the meaning set forth in the recitals
hereof.
ARTICLE II
REGISTRATION RIGHTS
2.1 Requested Registration.
(a) At any time after the date hereof, Holder may deliver to the
Company a written request (a "Registration Request") that the Company file and
use its best efforts to cause to become effective a "shelf" registration
statement on Form S-3 (or if Form S-3 is not then available, Form S-1 or such
other form that the Company is eligible to use with respect to the Eligible
Securities) under the Securities Act for an offering to be made on a continuous
basis pursuant to Rule 415 under the Securities Act with respect to such number
of Eligible Securities owned by Holder as shall be specified in such request;
provided, however, that the Company shall not be required to effect more than
two registrations on Form S-1 (or any successor form) and two registrations on
Form S-3 (or any successor form) pursuant to this Section 2.1. If such offering
is to be an underwritten offering, the managing underwriter or underwriters must
be reasonably acceptable to both Holder and the Company, which acceptance shall
not be
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unreasonably withheld. The Company shall also be entitled to include in any
registration statement filed pursuant to a Registration Request, for sale in
accordance with the method of disposition specified in such Registration
Request, such number of shares of Common Stock as the Company shall be
contractually obligated to sell for the account of other security holders.
Notwithstanding the foregoing provisions of this Section 2.1(a), to the extent
that, in the opinion of the underwriter or underwriters (if the method of
disposition shall be an underwritten public offering), marketing considerations
require the reduction of the number of shares of Common Stock covered by any
such registration, the number of shares of Common Stock to be registered and
sold pursuant to such registration shall be reduced as follows:
(i) First, the number of shares of Common Stock to be
registered on behalf of Persons other than the Holder, if any, shall be reduced
(to zero, if necessary) pro rata according to the number of shares of restricted
Common Stock held by each to the extent permitted by the Company's agreements
with such Persons; and
(ii) Second, the number of shares of Eligible Securities
to be registered on behalf of the Holder and of shares of Common Stock held by
other Persons holding registration rights granted by the Company entitled to be
included pro rata with the Holder shall be reduced pro rata according to the
number of shares of Eligible Securities held by each.
In the event that the number of shares of Eligible Securities
that are actually registered under any Registration Request under this Section
2.1(a) is less than the number requested to be registered by the Holder because
of inclusion of shares of Common Stock held by other Persons with registration
rights that must be included in such registration pursuant to clause (ii) above,
then such Registration Request shall not be deemed to be one of the Registration
Requests that may be demanded by the Holder pursuant to this Section 2.1(a).
(b) As soon as practicable following the receipt of a
Registration Request, the Company will use its best efforts to register under
the Securities Act, for an offering to be made on a continuous basis pursuant to
Rule 415 of the Securities Act, the number of shares of Eligible Securities
specified in such Registration Request.
2.2 Registration Procedures. If and whenever the Company is required by
the provisions of Section 2.1 to effect the registration of any Eligible
Securities under the Securities Act, the Company shall:
(a) prepare and file with the Commission a registration statement
with respect to such securities that will permit the public resale thereof
without restriction under the Securities Act and in accordance with the method
of distribution specified in the Registration Request, and the Company shall use
its best efforts (i) to cause such registration statement to be filed within 45
days of receipt of the Registration Request, (ii) to cause such registration
statement to be declared effective as promptly as practicable and (iii) to
maintain the effectiveness of such registration statement until such time as all
securities registered thereunder shall have been sold;
(b) promptly prepare and file with the Commission such amendments
and supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to effect and maintain the
effectiveness of such registration statement for the
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period specified in Section 2.2(a) and as to comply with the provisions of the
Securities Act with respect to the disposition of all Eligible Securities
covered by such registration statement in accordance with the intended method of
disposition set forth in such registration statement for such period, including
such amendments or supplements as are necessary to cure any untrue statement or
omission referred to in Section 2.2(e)(vi);
(c) provide to the managing underwriter or underwriters, not more
than one counsel for all underwriters, Holder and not more than one counsel for
Holder the opportunity to participate in the preparation of (i) such
registration statement, (ii) each prospectus relating thereto and included
therein or filed with the Commission and (iii) each amendment or supplement
thereto;
(d) make available for inspection by the parties referred to in
Section 2.2(c) such financial and other information and books and records of the
Company, and cause the officers, directors and employees of the Company, and
counsel and independent certified public accountants of the Company, to respond
to such inquiries, as shall be reasonably necessary, in the judgment of
respective counsel to Holder and such underwriter or underwriters, to conduct a
reasonable investigation within the meaning of the Securities Act; provided,
however, that each such person shall be required to retain in confidence and not
to disclose to any other person any information or records reasonably designated
by the Company in writing as being confidential until such time as such
information becomes a matter of public record (whether by virtue of its
inclusion in such registration statement or otherwise), unless (i) such person
shall be required to disclose such information pursuant to the subpoena or order
of any court or other governmental agency or body having jurisdiction over the
matter or (ii) such information is required to be set forth in such registration
statement or the prospectus included therein or in an amendment to such
registration statement or an amendment or supplement to such prospectus in order
that such registration statement, prospectus, amendment or supplement, as the
case may be, shall not contain an untrue statement of a material fact or omit to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, and such information has not been so set
forth after the request by Holder to such effect;
(e) immediately notify the persons referred to in Section 2.2(c)
and (if requested by any such person) confirm such advice in writing, (i) when
such registration statement or any prospectus included therein or any amendment
or supplement thereto has been filed and, with respect to such registration
statement or any such amendment, when the same has become effective, (ii) of any
material comments by the Commission with respect thereto or any request by the
Commission for amendments or supplements to such registration statement or
prospectus or for additional information, (iii) of the issuance by the
Commission of any stop order suspending the effectiveness of such registration
statement or the initiation of any proceedings for that purpose, (iv) if at any
time the representations and warranties of the Company contemplated by Section
2.2(1)(i) cease to be true and correct in all material respects, (v) of the
receipt by the Company of any notification with respect to the suspension of the
qualification of any Eligible Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose or (vi) at any time
when a prospectus is required to be delivered under the Securities Act, of the
occurrence or failure to occur of any event, or any other change in law, fact or
circumstance, as a result of which such registration statement,
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prospectus or any amendment or supplement thereto, or any document incorporated
by reference in any of the foregoing, contains an untrue statement of a material
fact or omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances then existing;
(f) take reasonable efforts to obtain the withdrawal at the
earliest practicable date of any order suspending the effectiveness of such
registration statement or any post-effective amendment thereto;
(g) if requested by the managing underwriter or underwriters or
Holder, promptly incorporate in a prospectus supplement or post-effective
amendment such information as such managing underwriter or underwriters or
Holder reasonably specify should be included therein relating to the terms of
the sale of such Eligible Securities, including, without limitation, information
with respect to the number of Eligible Securities being sold to such
underwriters, the name and description of Holder, the purchase price being paid
therefor by such underwriters and any other terms of the underwritten (or best
efforts underwritten) offering of the Eligible Securities to be sold in such
offering, and make all required filings of such prospectus supplement or
post-effective amendment promptly after notification of the matters to be
incorporated in such prospectus supplement or post-effective amendment;
(h) furnish to Holder and each underwriter and counsel for Holder,
if any, a copy of such executed registration statement, each such amendment and
supplement thereto (in each case including all exhibits thereto, whether or not
such exhibits are incorporated by reference therein) and such number of copies
of the prospectus included in such registration statement (including each
preliminary prospectus and any summary prospectus) and each amendment or
supplement thereto, in conformity with the requirements of the Securities Act,
as Holder and managing underwriter, if any, may reasonably request in order to
facilitate the disposition of Eligible Securities by Holder or by the
participating underwriters;
(i) use its best efforts to (i) register or qualify the Eligible
Securities to be included in such registration statement under such other
securities laws or blue sky laws of such jurisdictions as Holder and each
managing underwriter, if any, thereof shall reasonably request, (ii) keep such
registrations or qualifications in effect for so long as is necessary to effect
the disposition of such Eligible Securities in the manner contemplated by the
registration statement, the prospectus included therein and any amendment or
supplement thereto and (iii) take any and all such actions as may be reasonably
necessary or advisable to enable Holder and any participating underwriter or
underwriters to consummate the disposition in such jurisdictions of such
Eligible Securities;
(j) cooperate with Holder and the managing underwriters, if any,
to facilitate the timely preparation and delivery of certificates representing
Eligible Securities to be sold, which certificates shall be printed,
lithographed or engraved, or produced by any combination of such methods, and
which shall not bear any restrictive legends; and, in the case of an
underwritten public offering, enable such Eligible Securities to be registered
in such names as the underwriter or underwriters may request at least two (2)
business days prior to any sale of such Eligible Securities;
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(k) provide not later than the effective date of the registration
statement a transfer agent and registrar for such Eligible Securities and a
CUSIP number for all Eligible Securities;
(l) enter into an underwriting agreement, engagement letter,
agency agreement, "best efforts" underwriting agreement or similar agreement, as
appropriate, and take such other actions in connection therewith as Holder shall
reasonably request in order to expedite or facilitate the disposition of such
Eligible Securities, and in connection therewith, whether or not an underwriting
agreement is entered into and whether or not the registration is an underwritten
public offering, (i) make such representations and warranties to Holder and the
underwriters, if any, in form, substance and scope as are customarily made in an
underwritten public offering; (ii) obtain an opinion of counsel to the Company
in customary form and covering such matters as are customarily covered by such
an opinion as Holder and the underwriters, if any, may reasonably request,
addressed to Holder and the underwriters, if any, and dated the effective date
of such registration statement (or, if such registration includes an
underwritten public offering, dated the date of the closing under the
underwriting agreement); (iii) obtain a "cold comfort" letter from the
independent certified public accountants of the Company addressed to Holder and
the underwriters, if any, dated the effective date of such registration
statement (and, if such registration includes an underwritten public offering,
also dated the date of the closing under the underwriting agreement), such
letter to be in customary form and covering such matters as are customarily
covered by such letters; (iv) deliver such documents and certificates as may be
reasonably requested by Holder and the managing underwriter or underwriters, if
any, to evidence compliance with clause (i) of this Section 2.2(1) and with any
customary conditions contained in the underwriting agreement or other agreement
entered into by the Company and (v) undertake such obligations relating to
expense reimbursement, indemnification and contribution as are provided in
Sections 2.3, 2.4 and 2.5 hereof;
(m) cause all such Eligible Securities registered hereunder to be
listed on each securities exchange or over-the-counter market on which similar
securities issued by the Company are then listed, if applicable; and
(n) otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission.
Notwithstanding the provisions of Section 2.2(a), the Company's
obligation to file a registration statement, or cause such registration
statement to become effective, shall be suspended, without incurring any
liability to Holder, for a period not to exceed 60 days if there exists at the
time material non-public information relating to the Company that, in the
reasonable opinion of the Company, should not be disclosed, provided that any
such suspension shall occur no more than once in any 12-month period. In such an
event, the Company shall promptly inform Holder of the Company's decision to
defer filing of a registration statement and shall notify Holder promptly (but
in any event not later than upon the expiration of the 60-day period specified
in the immediately preceding sentence) of the recommencement of the Company's
best efforts to file the registration statement and to cause the registration
statement to become effective. If the Company shall so postpone the filing of a
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registration statement, (i) the Company shall use its reasonable best efforts to
limit the delay to as short a period as is practicable and (ii) Holder shall
have the right to withdraw the request for registration by giving written notice
to the Company at any time. In the event of such withdrawal, such request shall
not be counted for purposes of the number of requests for registration to which
the Holder is entitled pursuant to Section 2.1(a).
In connection with each registration of Eligible Securities
hereunder, Holder will furnish to the Company in writing such information with
respect to it and the proposed distribution by it as shall be reasonably
necessary in order to assure compliance with applicable federal and state
securities laws. Holder also agrees to notify the Company as promptly as
practicable of any inaccuracy or change in information previously furnished by
Holder to the Company or of the occurrence of any other event, in either case as
a result of which any prospectus relating to such registration contains an
untrue statement of a material fact regarding Holder or the distribution of such
Eligible Securities or omits to state any material fact regarding Holder or the
distribution of such Eligible Securities required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances then existing, and promptly to furnish to the Company any
additional information required to correct and update such previously furnished
information or required so that such prospectus shall not contain, with respect
to Holder or the distribution of such Eligible Securities, an untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, in light of
the circumstances then existing. Holder further agrees that upon giving any
notice referred to in the immediately preceding sentence, or upon receipt of any
notice from the Company pursuant to Section 2.2(e)(vi) hereof, Holder shall
forthwith discontinue the disposition of Eligible Securities pursuant to the
registration statement applicable to such Eligible Securities until Holder shall
have received copies of an amended or supplemented registration statement or
prospectus, and if so directed by the Company, Holder shall deliver to the
Company (at the Company's expense) all copies, other than permanent file copies,
then in Holder's possession of the prospectus covering such Eligible Securities
at the time of receipt of such notice.
2.3 Expense. The Company shall pay all expenses incurred in complying
with Sections 2.1 and 2.2, including without limitation all registration and
filing fees, printing expenses, fees and disbursements of counsel and
independent public accountants for the Company, fees and expenses of one counsel
for Holder, fees and expenses (including counsel fees) incurred in connection
with complying with state securities or "blue sky" laws (other than those that
by law must be paid by selling security holders), transfer taxes, fees of
transfer agents and registrars and stock exchange listing fees, but excluding
all underwriting discounts and selling commissions applicable to the sale of
Eligible Securities.
2.4 Indemnification.
(a) In the event of a registration of Eligible Securities under
the Securities Act pursuant to Sections 2.1 and 2.2, the Company shall indemnify
and hold harmless Holder, each officer and director of Holder, each underwriter
of such Eligible Securities thereunder and each other person, if any, who
controls Holder or underwriter within the meaning of the Securities Act, against
any losses, claims, damages or liabilities, joint or several, to which
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Holder, or such officer, director, underwriter or controlling person may become
subject under the Securities Act or otherwise or in any action in respect
thereof, and will reimburse Holder and each such officer, director, underwriter
and controlling person for any legal or other expenses reasonably incurred by
them in connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of any material
fact contained in any registration statement under which such Eligible
Securities were registered under the Securities Act pursuant to Sections 2.1 and
2.2, any preliminary prospectus or final prospectus contained therein, or any
amendment or supplement thereof, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading; provided,
however, that the Company shall not be liable to Holder or such officer,
director, underwriter or controlling person in any such case if and to the
extent that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement or omission or alleged
omission made in conformity with information furnished by Holder, or such
officer, director, underwriter or controlling person in writing specifically for
use in such registration statement or prospectus.
(b) Holder will indemnify and hold harmless the Company, each
underwriter and each person, if any, who controls the Company or any underwriter
within the meaning of the Securities Act, each officer of the Company who signs
the registration statement, and each director of the Company, against all
losses, claims, damages or liabilities, joint or several, to which the Company
or any such officer, director, underwriter, or controlling person may become
subject under the Securities Act or otherwise, and shall reimburse the Company
and each such officer, director, underwriter and controlling person for any
legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action,
but only to the extent that any such loss, claim, damage or liability (or action
in respect thereof) arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in reliance upon
and in conformity with information pertaining to Holder furnished in writing to
the Company by Holder specifically for use in the registration statement or
prospectus relating to such Eligible Securities. Notwithstanding the immediately
preceding sentence, the liability of Holder hereunder shall not in any event
exceed the net proceeds received by Holder from the sale of Eligible Securities
covered by such registration statement.
(c) Promptly after receipt by an indemnified party hereunder of
notice of the commencement of any action, such indemnified party, if a claim in
respect thereof is to be made against an indemnifying party hereunder, shall
notify such indemnifying party in writing thereof, but the omission so to notify
such indemnifying party shall not relieve such indemnifying party from any
liability that it may have to any indemnified party other than under this
Section 2.4 and, unless the failure to so provide notice materially adversely
affects or prejudices such indemnifying party's defense against any action,
shall not relieve such indemnifying party from any liability that it may have to
any indemnified party under this Section 2.4. In case any such action shall be
brought against any indemnified party and it shall notify an indemnifying party
of the commencement thereof, such indemnifying party shall be entitled to
participate in and, to the extent it shall wish, to assume and undertake the
defense thereof with counsel reasonably
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satisfactory to such indemnified party, and, after notice from such indemnifying
party to such indemnified party of its election so to assume and undertake the
defense thereof, such indemnifying party shall not be liable to such indemnified
party under this Section 2.4 for any legal expenses subsequently incurred by
such indemnified party in connection with the defense thereof other than
reasonable costs of investigation and of liaison with counsel so selected;
provided, however, that, if the defendants in any such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be reasonable defenses available to it
that are different from or additional to those available to the indemnifying
party or if the interests of the indemnified party reasonably may be deemed to
conflict with the interests of the indemnifying party, the indemnified party
shall have the right to select a separate counsel and to assume and undertake
the defense of such action, with the expenses and fees of such separate counsel
and other expenses related to such defense to be reimbursed by the indemnifying
party as incurred.
(d) No indemnifying party shall be liable for any amounts paid in
a settlement effected without the consent of such indemnifying party, which
consent shall not be unreasonably withheld or delayed. No indemnifying party
shall consent to entry of any judgment or enter into any settlement that does
not include as an unconditional term thereof the giving by the plaintiff to the
indemnified party of a release from all liability in respect of such claim or
litigation.
(e) The reimbursements required by this Section 2.4 shall be made
by periodic payment during the course of the investigation or defense, as and
when bills are received and expenses incurred.
2.5 Contribution. If for any reason the indemnity set forth in Section
2.4 is unavailable or is insufficient to hold harmless an indemnified party,
then the indemnifying party shall contribute to the amount paid or payable by
such indemnified party as a result of the aggregate losses, claims, damages,
liabilities and expenses of the nature contemplated by said indemnity (a) in
such proportion as is appropriate to reflect the relative fault of the
indemnifying party on the one hand and such indemnified party on the other hand
(determined by reference to, among other things, whether the untrue statement of
a material fact or omission to state a material fact relates to information
supplied by the indemnifying party or such indemnified party and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission) or (b) if the allocation provided by
Section 2.5(a) above is not permitted by applicable law or provides a lesser sum
to such indemnified party than the amount hereinafter calculated, in such
proportion as is appropriate to reflect not only the relative fault of the
indemnifying party and such indemnified party but also the relative benefits
received by the indemnifying party on the one hand and such indemnified party on
the other hand, as well as any other relevant equitable considerations.
The Parties agree that it would not be just and equitable if
contribution pursuant to this Section 2.5 were determined by pro rata allocation
or by any other method of allocation that does not take account of the equitable
consideration referred to in the immediately preceding paragraph. The amount
paid or payable by an indemnified party as a result of the
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losses, claims, damages, liabilities or expenses referred to in such paragraph
shall be deemed to include, subject to the limitations set forth above, any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 2.5, Holder shall not be required
to contribute any amount in excess of the amount by which the net proceeds of
the sale of Eligible Securities sold by Holder and distributed to the public
exceeds the amount of any damages that Holder has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person that is not guilty of such fraudulent misrepresentation.
2.6 Underwriting Agreement. If Eligible Securities are to be sold
pursuant to a registration statement in an underwritten offering pursuant to
Sections 2.1 and 2.2, each of the Company and Holder agrees to enter into a
written agreement with the managing underwriter or underwriters selected in the
manner herein provided in such form and containing such provisions as are
reasonably satisfactory to the Company and Holder and as are customary in the
securities business for such an arrangement among such underwriter or
underwriters, Holder and companies of the Company's size and investment stature.
Holder shall not be required to make any representations and warranties to the
Company or the underwriters other than representations or warranties regarding
the identity of Holder, Holder's Eligible Securities, Holder's ability to
transfer title to Holder's Eligible Securities and Holder's intended method of
distribution or any other representations required by applicable law.
2.7 Reports Under Securities Exchange Act of 1934. With a view to making
available to the Holder the benefits of Rule 144 promulgated under the
Securities Act and any other rule or regulation of the SEC that may at any time
permit the Holder to sell securities of the Company to the public without
registration or pursuant to a registration on Form S-3, the Company agrees to:
(a) make and keep public information available, as those terms
are understood and defined in SEC Rule 144, at all times so long as the Company
remains subject to the periodic reporting requirements under Sections 13 or
15(d) of the Exchange Act;
(b) take such action, including the voluntary registration of its
Common Stock under Section 12 of the Exchange Act, as is necessary to enable the
Holder to use Form S-3 for the sale of its Eligible Securities;
(c) file with the SEC in a timely manner all reports and other
documents as may be required of the Company under the Securities Act and the
Exchange Act; and
(d) furnish to Holder, so long as Holder owns any Eligible
Securities, forthwith upon request (i) a written statement by the Company that
it has complied with the reporting requirements of SEC Rule 144, the Securities
Act and the Exchange Act (at any time after it has become subject to such
reporting requirements), or that it qualifies as a registrant whose securities
may be resold pursuant to Form S-3 (at any time after it so qualifies), (ii) a
copy of the most recent annual or quarterly report of the Company and such other
reports and
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documents so filed by the Company, and (iii) such other information as may be
reasonably requested in availing any Holder of any rule or regulation of the SEC
which permits the selling of any such securities without registration or
pursuant to such form.
ARTICLE III
MISCELLANEOUS
3.1 Assignment; Third Party Beneficiaries. All covenants and agreements
contained in this Agreement by or on behalf of any of the signatories shall bind
and inure to the benefit of the respective successors and assigns of the
signatories, whether so expressed or not. If any transferee of Holder shall
acquire Eligible Securities in any manner (other than by way of a registered
public offering), whether by operation of law or otherwise, such Eligible
Securities shall be held subject to all of the terms of this Agreement, and by
taking and holding such Eligible Securities such transferee shall be entitled to
receive the benefits of and be conclusively deemed to have agreed to be bound by
and to perform all of the terms and provisions of this Agreement. The benefits
to which any such transferee shall be entitled shall include, without
limitation, the rights to register Eligible Securities under Sections 2.1 and
2.2.
3.2 Notices. All notices, consents and other communications under this
Agreement shall be in writing and shall be deemed to have been duly given when
(a) delivered by hand, (b) sent by telecopier (with receipt confirmed), provided
that a copy is mailed by registered or certified mail, return receipt requested
or (c) when received by the addressee, if sent by Express Mail, Federal Express
or other express delivery service (receipt requested), in each case to the
appropriate addresses and telecopier numbers set forth below (or to such other
addresses and telecopier numbers as a party may designate as to itself by notice
to the other parties):
(i) If to the Company: 0000 Xxxxxxxxx Xxxx, Xxx Xxxxx Xxxxxxx, XX
00000-0000, Fax No. 000-000-0000, Attention: General Counsel.
(ii) If to Holder: at the address set forth in the Note Purchase
Agreement.
3.3 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
3.4 Amendments. This Agreement may not be amended or modified, and no
provision hereof may be waived, except in writing, and any such writing shall
only be effective with respect to a Party who has executed such writing. The
failure of any of the Parties to insist upon strict adherence to any term of
this Agreement on any occasion shall not be considered a waiver of that term or
deprive such Party of the right thereafter to insist upon strict adherence to
that term or any other term of this Agreement.
3.5 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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3.6 Remedies. The Parties acknowledge that there may be no adequate
remedy at law if any Party fails to perform any of its obligations hereunder and
that each Party may be irreparably harmed by any such failure, and accordingly
agree that each Party, in addition to any other remedy that it may be entitled
in law or in equity, shall be entitled to compel specific performance of the
obligations of any other Party under this Agreement in accordance with the terms
and conditions of this Agreement in any court of the United States or any state
thereof having jurisdiction.
3.7 Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
3.8 Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions contained herein shall not be in any way impaired
thereby, it being intended that all of the rights and privileges of Holder shall
be enforceable to the fullest extent permitted by law.
3.9 Entire Agreement. This Agreement is intended by the Parties as a
final expression of their agreement and a complete and exclusive statement of
the agreement and understanding of the parties hereto in respect of the subject
matter contained herein. There are no restrictions, promises, warranties or
undertakings other than those set forth or referred to herein or therein. This
Agreement supersedes all prior agreements and understandings between the Parties
with respect to such subject matter.
[Signature Page Follows]
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
ELECTRIC CITY CORP.,
a Delaware corporation
By: /s/ XXXX XXXXXX
------------------------------------
Name: Xxxx Xxxxxx
Title: Chief Executive Officer
NEWCOURT CAPITAL USA INC.,
a Delaware corporation
By: /s/ XXX XXXXXX
------------------------------------
Name: Xxx Xxxxxx
Title: Managing Director
NEWCOURT CAPITAL USA INC.,
a Delaware corporation
By: /s/ XXXXX XXXXXXXXX
------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Vice President
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
