EXHIBIT 99.6
AMENDED AND RESTATED STOCK TRADING AGREEMENT
This Amended and Restated Stock Trading Agreement, dated as of March
19, 2004 (as it may be amended, restated or modified and in effect from time to
time, this "Agreement"), is made by and among Electric City Corp., a Delaware
corporation (the "Company"), Newcourt Capital USA, Inc., a Delaware corporation
("Newcourt Capital"), Originators Investment Plan, L.P., a Delaware limited
partnership ("OIP), Xxxxxx Xxxxxxx Xxxx Xxxxxx Equity Funding, Inc., a Delaware
corporation ("Xxxxxx Xxxxxxx"), Cinergy Ventures II, LLC, a Delaware limited
liability company ("Cinergy Ventures"), Leaf Mountain Company LLC, an Illinois
limited liability company ("Leaf Mountain"), SF Capital Partners Ltd., a British
Virgin Islands company ("SF Capital"), Xxxxxxx X. Xxxxxxx, an individual
("Xxxxxxx" ), Xxxxx X. Xxxxxxx, an individual ("Xxxxxxx"), Xxxx Xxxxxx Hurvis
Revocable Trust, an Illinois trust ("Hurvis Trust"), Xxxx Xxxxxxx, an individual
("Xxxxxxx"), Xxxxxxxxx Fund, LP, an Illinois limited partnership ("Augustine"),
and Technology Transformation Venture Fund, LP, a Delaware limited partnership
("TVP") (collectively, Newcourt Capital, OIP, Xxxxxx Xxxxxxx, Cinergy Ventures,
Leaf Mountain, SF Capital, Kiphart, Asplund, Hurvis Trust, Xxxxxxx, Xxxxxxxxx
and TVP are referred to herein as the "Investors"), CIT Capital Securities, Inc.
(formerly known as Newcourt Capital Securities, Inc.), a Delaware corporation
("CIT Capital Securities") , and each of the members of management of the
Company set forth on the signature pages hereto, and shall become effective on
September 8, 2004, as more fully set forth below.
W I T N E S S E T H:
WHEREAS, each of the Investors is a holder of certain shares of the
Company's outstanding Series A Convertible Preferred Stock ("Series A
Preferred"), Series C Convertible Preferred Stock ("Series C Preferred") and/or
Series D Convertible Preferred Stock ("Series D Preferred" and, together with
the Series A Preferred and the Series C Preferred, the "Existing Preferred
Stock"), and each Investor is also a holder of shares of Common Stock (as
hereinafter defined), and each Investor is also a holder of certain warrants to
purchase additional shares of Common Stock of the Company and certain Investors
are also holders of warrants to purchase additional shares of Series D
Preferred; and
WHEREAS, CIT Capital Securities also holds a warrant to purchase shares
of Common Stock of the Company; and
WHEREAS, the parties hereto have previously entered into one or more of
the following: that certain Stock Trading Agreement, dated as of July 31, 2001,
as amended, that certain Stock Trading Agreement, dated as of June 4, 2002 or
that certain Stock Trading Agreement dated as of June 27, 2003 (collectively,
the "Prior Agreements"); and
WHEREAS, the Company and the Investors have entered into that certain
Redemption and Exchange Agreement, dated as of March 19, 2004 (as it may be
amended, restated or modified and in effect from time to time, the "Redemption
and Exchange Agreement"), whereby the Company will redeem certain shares of
Existing Preferred Stock held by some Investors and all of the Investors will
exchange their remaining shares of the Company's Existing Preferred Stock for
shares of the Company's Series E Convertible Preferred Stock, par value $0.01
per share (the "Series E Preferred Stock") and the Investors holding warrants to
purchase shares of
-1-
the Series D Preferred will exchange such warrants for replacement warrants to
purchase shares of Series E Preferred Stock, all as more fully described in the
Redemption and Exchange Agreement; and
WHEREAS, it is a condition to the obligations of the Investors and the
Company to closing of the transactions contemplated by the Redemption and
Exchange Agreement that the Company and the Parties enter into this Agreement;
and
WHEREAS, the Company and the Parties hereto desire that this Agreement
supersede and replace all three of the Prior Agreements in their entirety;
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1 Defined Terms. All terms capitalized but not defined herein
shall have the meaning attributable to such terms in the Redemption and Exchange
Agreement, except where the context otherwise requires. The following additional
terms when used in this Agreement, including its preamble and recitals, shall,
except where the context otherwise requires, have the following meanings, such
meanings to be equally applicable to the singular and plural forms thereof:
"Affiliate" means, as applied to any Person, any other Person
controlling, controlled by or under common control with such Person. For
purposes of this definition, "control" (including, with correlative meanings,
the terms "controlled by" and "under common control with"), as applied to any
Person, shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of any such other
Person, whether through the ownership of voting securities or by contract or
otherwise. With respect to individuals, the term Affiliate shall also include
such individual's parents, spouse, children or grandchildren.
"Agreement" shall have the meaning set forth in the preamble
hereof.
"Average Daily Trading Volume" with respect to any trading day, means
the average daily trading volume of the Common Stock as reported on the American
Stock Exchange (or, if not traded on the American Stock Exchange, any national
securities exchange or automated quotation services on which the Common Stock is
then listed for trading) for the twenty (20) consecutive trading days (as
adjusted to exclude the highest and the lowest volume trading days for such
twenty (20) consecutive trading day period) ending on the date immediately prior
to such trading day.
"Block Sales" means a sale of at least 10,000 shares of Common Stock.
"Closing Price" means the closing price of the Common Stock as reported
on the American Stock Exchange (or, if not traded on the American Stock
Exchange, any national
-2-
securities exchange or automated quotation services on which the Common Stock is
then listed for trading).
"Common Stock" means and includes the Company's authorized common
stock, par value $0.0001 per share.
"Company" shall have the meaning set forth in the preamble hereof.
"Investors" shall have the meaning set forth in the preamble hereof.
"Parties" means all of the parties that are signatories to this
Agreement from time to time, including under any joinders executed pursuant to
the terms hereof, other than the Company.
"Person" means and includes an individual, a corporation, a limited
liability company, an association, a partnership, a trust or estate, a
government or any department or agency thereof.
"Redemption and Exchange Agreement" shall have the meaning set forth in
the fourth WHEREAS clause hereof.
ARTICLE II
TRADING RESTRICTIONS
2.1 Agreement for Benefit of Company. Each Party hereby agrees
that its obligations under this Agreement are for the benefit of the Company and
further agrees that the Company shall be entitled to enforce such Party's
obligations under this Agreement.
2.2 Effective Date; Public Sales. This Agreement shall become
effective on September 8, 2004. Until such date, the Prior Agreements shall
continue in full force and effect. On September 8, 2004, the Prior Agreements
shall each terminate and be of no further force or effect. On and after
September 8, 2004, during the term of this Agreement, no Party may sell any of
its Common Stock into the public market except in accordance with the following
trading restrictions:
(a) During the term of this Agreement and at any time the
Closing Price on the then prior trading day is $4.00 per share or more,
no restrictions hereunder shall apply.
(b) During the term of this Agreement and at any time the
Closing Price on the then prior trading day is at least $2.00 per share
but less than $4.00 per share, such Party may sell any of its Common
Stock into the public market, subject to the following conditions:
(i) the number of shares of Common Stock sold by such
Party on any trading day may not exceed fifteen
percent (15%) of the Average Daily Trading Volume;
and
(ii) Block Sales by such Party must be executed at a
minimum price per share of 90% of the ask price as
reported on the American Stock Exchange (or,
-3-
if not traded on the American Stock Exchange, any
national securities exchange or automated quotation
services on which the Common Stock is then listed for
trading).
(c) During the term of this Agreement and at any time the
Closing Price on the then prior trading day is at least $1.00 per share
but less than $2.00 per share, such Party may sell any of its Common
Stock into the public market, subject to the following conditions:
(i) the number of shares of Common Stock sold by such
Party on any trading day may not exceed ten percent
(10%) of the Average Daily Trading Volume; and
(ii) Block Sales by such Party must be executed at a
minimum price per share of 90% of the ask price as
reported on the American Stock Exchange (or, if not
traded on the American Stock Exchange, any national
securities exchange or automated quotation services
on which the Common Stock is then listed for
trading).
(d) During the term of this Agreement and at any time the
Closing Price on the then prior trading day is less than $1.00 per
share, such Party may sell any of its Common Stock into the public
market, subject to the following conditions:
(i) the number of shares of Common Stock sold by such
Party on any trading day may not exceed five percent
(5%) of the Average Daily Trading Volume; and
(ii) Block Sales by such Party must be executed at a
minimum price per share of 90% of the ask price as
reported on the American Stock Exchange (or, if not
traded on the American Stock Exchange, any national
securities exchange or automated quotation services
on which the Common Stock is then listed for
trading).
2.3. Private Sales. Any Party may sell any of its shares of Series
E Preferred Stock or Common Stock (or securities exercisable or exchangeable for
or convertible into shares of Series E Preferred Stock or Common Stock) it owns
in a private transaction not effected over any securities exchange; provided,
however, that any such private sale of shares of Series E Preferred Stock or
Common Stock (or securities exercisable or exchangeable for or convertible into
shares of Series E Preferred Stock or Common Stock) to a party that is not a
Party to this Agreement shall have as a condition to such sale that such
acquiring party shall become a Party to this Agreement by executing a joinder
hereto with the Company acknowledging that the shares of Series E Preferred
Stock or Common Stock (or securities exercisable or exchangeable for or
convertible into shares of Series E Preferred Stock or Common Stock) being
acquired shall be subject to the terms hereof while this Agreement remains in
effect.
2.4 Transfer to Affiliates. Notwithstanding anything in this
Agreement to the contrary, any party may freely sell or otherwise transfer any
Series E Preferred Stock or Common Stock (or securities exercisable or
exchangeable for or convertible into shares of Series
-4-
E Preferred Stock or Common Stock) it owns to its Affiliates without such sale
or transfer being subject to the terms of this Agreement; provided, however,
that any such Affiliate shall become a party to and bound by this Agreement and
its ownership and sales of shares of Series E Preferred Stock or Common Stock or
other securities exercisable or exchangeable for or convertible into shares of
Series E Preferred Stock or Common Stock shall be aggregated with the
transferring Party for purposes of Sections 2.1 and 2.2.
2.5 Term of Trading Agreement. The term of this Agreement shall
terminate on September 7, 2007.
2.6 Amendments to the Trading Agreement. This Agreement may only
be amended upon the prior written consent of the Company and all other Parties
at the time of such amendment.
2.7 Purchases by Management in the Public Market. Notwithstanding
anything in this Article II to the contrary, all shares of Common Stock
purchased by members of management that are signatories hereto in the public
market from other than the Company or its underwriters shall not be subject to
this Article II.
2.8 Agreement Not Applicable to Xxxxxxx Xxxxxx or Xxxxx Xxxxxxxx.
The Parties and the Company acknowledge that Xxxxxxx Xxxxxx and Xxxxx Xxxxxxxx
were each signatories to the 2001 Stock Trading Agreement and that Messrs.
Pokora and Kawamura have since ceased to be officers or employees of the Company
or any of its Subsidiaries. Accordingly, the Parties and the Company each hereby
agree that Messrs. Pokora and Kawamura shall not be Parties to this Agreement,
without prejudice to any of their rights or obligations under the 2001 Stock
Trading Agreement.
2.9 Agreement Not Applicable to Certain SF Capital Partners, Ltd
Common Stock. The Parties and the Company acknowledge that SF Capital
Securities, Ltd. and the Company were signatories to a Stock Trading Agreement
dated as of February 27, 2003 (the "SF Capital Trading Agreement") which was
entered into in connection with the purchase by SF Capital Partners, Ltd. from
the Company of 1,086,957 shares of Common Stock (including any adjustments
occurring thereto after the date hereof for stock splits, stock combinations and
the like, the "Excluded SF Capital Common Shares") and warrants (the "Excluded
SF Capital Common Stock Warrants") evidenced by Warrant No. 32 issued by the
Company to purchase up to 300,000 additional shares of Common Stock (including
any adjustments occurring thereto after the date hereof for stock splits, stock
combinations and the like, the "Excluded SF Capital Warrant Shares"). The
Parties and the Company hereby agree that (a) this Agreement does not apply with
respect to any Excluded SF Capital Common Shares or any Excluded SF Capital
Common Stock Warrants or any Excluded SF Capital Warrant Shares; and (b) that
the SF Capital Trading Agreement has been terminated, effective March 20, 2004.
2.10 Agreement Not Applicable to Certain Xxxxxxx Common Stock. The
Parties and the Company acknowledge that Xxxxxxx X. Xxxxxxx and the Company are
signatories to a Stock Trading Agreement dated as of April 23, 2003 (the
"Xxxxxxx Trading Agreement") which was entered into in connection with the
purchase by Xxxxxxx X. Xxxxxxx from the Company of 456,429 shares of Common
Stock (including any adjustments occurring thereto after the date
-5-
hereof for stock splits, stock combinations and the like, the "Excluded Xxxxxxx
Common Shares") and warrants (the "Excluded Xxxxxxx Common Stock Warrants")
evidenced by Warrant No. 41 issued by the Company to purchase up to 125,974
additional shares of Common Stock (including any adjustments occurring thereto
after the date hereof for stock splits, stock combinations and the like, the
"Excluded Xxxxxxx Warrant Shares"). The Parties and the Company hereby agree
that (a) this Agreement does not apply with respect to any Excluded Xxxxxxx
Common Shares or any Excluded Xxxxxxx Common Stock Warrants or any Excluded
Xxxxxxx Warrant Shares; and (b) that this Agreement does not amend, modify,
supersede or otherwise in any manner change or affect the Xxxxxxx Trading
Agreement, which remains in full force and effect in accordance with its terms.
ARTICLE III
GENERAL PROVISIONS
3.1 Legend on Share Certificates.
(a) After this Agreement becomes effective, all Company securities
that are subject to the terms and provisions of Article II, in addition to such
other legends as may be required by law and any other legend required by the
Redemption and Exchange Agreement or any Ancillary Agreements (as defined in the
Redemption and Exchange Agreement) shall bear the following legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE ALSO
SUBJECT TO CERTAIN REQUIREMENTS AS TO TRADING CONTAINED IN THE
AMENDED AND RESTATED STOCK TRADING AGREEMENT, DATED MARCH 19,
2004, BY AND AMONG THE COMPANY AND CERTAIN SECURITY HOLDERS, A
COPY OF WHICH IS ON FILE WITH THE SECRETARY OF THE COMPANY.
(b) Upon the termination of this Agreement, each Party shall be
entitled to receive, in exchange for any security bearing the legend regarding
this Agreement specifically set forth in Section 3.1(a), a security without such
legend.
ARTICLE IV
MISCELLANEOUS
4.1 Injunctive Relief. It is acknowledged that it is impossible to
measure in money the damages that would be suffered if the Parties fail to
comply with the obligations imposed on them by this Agreement and that, in the
event of any such failure, an aggrieved Party would be irreparably damaged and
would not have an adequate remedy at law. Any such Party shall, therefore, be
entitled to injunctive relief and/or specific performance to enforce such
obligations, and if any action should be brought in equity to enforce any of
such provisions of this Agreement, none of the Parties shall raise the defense
that there is an adequate remedy at law.
4.2 Governing Law. Except as to matters governed by the General
Corporation Law of the State of Delaware and decisions thereunder of the
Delaware courts applicable to Delaware corporations, which shall be governed by
such laws and decisions, this Agreement shall be
-6-
construed and enforced in accordance with, and the rights of the parties shall
be governed by, the laws of the State of Illinois.
4.3 Entire Agreement; Waiver. As among the Parties and the
Company, this Agreement supersedes the Prior Agreements and contains the entire
agreement among the parties hereto with respect to the subject matter hereof. No
waiver of any term or provision shall be effective unless in writing signed by
the party to be charged. This Agreement does not modify, amend or otherwise
affect either the SF Capital Trading Agreement (as defined in Section 2.8) or
the Xxxxxxx Trading Agreement (as defined in Section 2.9).
4.4 Binding Effect. This Agreement shall be binding on and inure
to the benefit of the Parties and, subject to the terms and provisions hereof,
their respective legal representatives, successors and assigns.
4.5 Invalidity of Provision. The invalidity or unenforceability of
any provision of this Agreement in any jurisdiction shall not affect the
validity or enforceability of the remainder of this Agreement in that
jurisdiction or the validity or enforceability of this Agreement, including that
provision, in any other jurisdiction.
4.6 Counterparts. This Agreement may be executed in two or more
counterparts, all of which shall be deemed but one and the same instrument and
each of which shall be deemed an original, and it shall not be necessary in
making proof of this Agreement to produce or account for more than one such
counterpart for each of the parties hereto. Delivery by facsimile by any of the
parties hereto of an executed counterpart of this Agreement shall be effective
as an original executed counterpart hereof and shall be deemed a representation
that an original executed counterpart hereof will be delivered.
4.7 Notices. All notices, consents and other communications under
this Agreement shall be in writing and shall be deemed to have been duly given
when (a) delivered by hand, (b) sent by telecopier (with receipt confirmed),
provided that a copy is mailed by certified or registered mail, return receipt
requested, or (c) when received by the addressee, if sent by Express Mail,
Federal Express or other express delivery service (receipt requested), in each
case to the appropriate addresses and telecopier numbers set forth below (or to
such other addresses and telecopier numbers as a party may designate as to
itself by notice in accordance herewith given to each of the other parties):
-7-
(i) If to the Company:
0000 Xxxxxxxxx Xxxx
Xxx Xxxxx Xxxxxxx, XX 00000-0000
Fax No. 000-000-0000
Attention: Chief Financial Officer
(ii) If to a Party: at the address set forth in
the Redemption and Exchange Agreement or the
signature page to this Agreement.
4.8 Headings. The descriptive headings of the several paragraphs
of this Agreement are inserted for convenience only and do not constitute part
of this Agreement.
[BALANCE OF PAGE INTENTIONALLY LEFT BLANK; SIGNATURE PAGE FOLLOWS.]
-8-
IN WITNESS WHEREOF, the parties hereto have caused this Amended and
Restated Stock Trading Agreement to be executed as of the day and year first
above written.
COMPANY INVESTORS
ELECTRIC CITY CORP., NEWCOURT CAPITAL USA INC.,
By:_____________________________ By: __________________________________
Name: Xxxx Xxxxxx Name: ________________________________
Title: Chief Executive Officer Title: _______________________________
MANAGEMENT CIT CAPITAL SECURITIES, INC.
XXXX XXXXXX
By: __________________________________
Name: ________________________________
_________________________________ Title: _______________________________
XXXXXX XXXXXXX XXXX XXXXXX
EQUITY FUNDING, INC.
XXXXXXX XXXXXXX
By: __________________________________
Name: ________________________________
_________________________________ Title: _______________________________
ORIGINATORS INVESTMENT PLAN, L.P.
XXXXXX XXXXXX
By: MSDW OIP Investors, Inc.,
its general partner
_________________________________
By: __________________________________
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
CINERGY VENTURES II, LLC
By: __________________________________
Name: ________________________________
Title: _______________________________
-9-
LEAF MOUNTAIN COMPANY, LLC
By: __________________________________
Name: ________________________________
Title: _______________________________
SF CAPITAL PARTNERS, LTD.
By: __________________________________
Name: ________________________________
Title: _______________________________
XXXXXXX XXXXXXX
______________________________________
XXXXX X. XXXXXXX
______________________________________
XXXX XXXXXX HURVIS REVOCABLE TRUST
By: __________________________________
Name: ________________________________
Title: _______________________________
XXXX XXXXXXX
______________________________________
-10-
AUGUSTINE FUND LP
By: __________________________________
Name: ________________________________
Title: _______________________________
TECHNOLOGY TRANSFORMATION VENTURE
FUND, LP
By: __________________________________
Name: ________________________________
Title: _______________________________
-11-
