Registration No. 333-105084
SECURITIES AND EXCHANGE COMMISSION
UNDER
THE SECURITIES ACT OF 1933
ELECTRIC CITY CORP.
Delaware (State or other jurisdiction of incorporation or organization |
1280 Landmeier Road Elk Grove Village, IL 60007 (847) 437-1666 |
36-4197337 (I.R.S. Employer Identification No.) |
(Address, Including Zip Code, and Telephone
Number, Including Area Code, of Registrants
Principal Executive Offices)
JEFFREY R. MISTARZ
Chief Financial Officer and Treasurer
Electric City Corp., 1280 Landmeier Road, Elk Grove Village, Illinois, 60007, (847) 437-1666
(Name, Address, and Telephone Number of Agent for Service)
Copies to:
Andrew H. Connor
Schwartz Cooper Greenberger & Krauss, Chtd.
180 N. LaSalle Street, Suite 2700
Chicago, Illinois 60601
(312) 346-1300
Approximate Date of Commencement of Proposed sale to the Public:
From time to time after the effective date of this registration statement.
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box o
If any of the securities being registered on this form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, as amended, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. x
If this form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. o
If this form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. o
If delivery of the prospectus is expected to be made pursuant to Rule 434, check the following box. o
PROSPECTUS
ELECTRIC CITY CORP.
Our principal executive office is located at 1280 Landmeier Road, Elk Grove Village, Illinois, 60007. Our telephone number at that address is (847) 437-1666. Our web site is located at http://www.elccorp.com.
Investing in our common stock involves risks described beginning on page 4.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed upon the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense.
TABLE OF CONTENTS
About This Prospectus |
1 | |||
Where You Can Find More Information |
1 | |||
Incorporation Of Certain Documents By Reference |
1 | |||
Cautionary Note Regarding Forward-Looking Statements |
2 | |||
Prospectus Summary |
3 | |||
Risk Factors |
4 | |||
Use of Proceeds |
15 | |||
Plan of Distribution |
15 | |||
Selling Stockholders |
17 | |||
Legal Matters |
21 | |||
Experts |
21 |
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ABOUT THIS PROSPECTUS
This prospectus is a part of a registration statement that we have filed with the Securities and Exchange Commission (SEC or Commission) using a shelf registration process. You should rely only on the information provided in this prospectus or any supplement or amendment. We have not authorized anyone else to provide you with additional or different information. You should not assume that the information in this prospectus or any supplement or amendment is accurate as of any date other than the date on the front of this prospectus or any supplement or amendment.
Unless the context otherwise requires, Electric City, the Company, we, our, us and similar expressions refers to Electric City Corp. and its subsidiaries, and the term common stock means Electric City Corp.s common stock, par value $0.0001 per share.
WHERE YOU CAN FIND MORE INFORMATION
We file reports, proxy statements and other information with the SEC. Information filed with the SEC by us can be inspected and copied at the public reference room maintained by the SEC at 450 Fifth Street, N.W., Room 1024, Washington, D.C. 20549. You may also obtain copies of this information by mail from the Public Reference Section of the SEC, 450 Fifth Street, N.W., Washington, D.C. 20549, at prescribed rates. Further information on the operation of the SECs public reference room in Washington, D.C. can be obtained by calling the SEC at 1-800-SEC-0330.
The SEC also maintains a web site that contains reports, proxy statements and other information about issuers, such as us, who file electronically with the SEC. The address of that site is http://www.sec.gov.
Our common stock is listed on the American Stock Exchange (AMEX: ELC), and reports, proxy statements and other information concerning us can also be inspected at the offices of the American Stock Exchange at 86 Trinity Place, New York, New York 10006. Our web site address is http://www.elccorp.com. The information on our web site, however, is not, and should not be deemed to be, a part of this prospectus.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The rules of the SEC allow us to incorporate by reference information into this prospectus, which means that we can disclose important information to you by referring you to another document filed separately with the SEC. The information incorporated by reference is deemed to be part of this prospectus, and later information that we file with the SEC will automatically update and supersede that information. This prospectus incorporates by reference the documents set forth below that we have previously filed with the SEC. These documents contain important information about us.
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| our Annual Report on Form 10-KSB for the year ended December 31, 2002 (filed with the SEC on March 31, 2003); | ||
| our Quarterly Report on Form 10-QSB for our fiscal quarter ended March 31, 2003 (filed with the SEC on May 15, 2003); | ||
| our Form 8-A (filed with the SEC on December 8, 2000); | ||
| our Form 8-K (filed with the SEC on June 5, 2003); | ||
| our Form 8-K/A (filed with the SEC on July 2, 2003); | ||
| our Form 8-K (filed with the SEC on July 2, 2003); | ||
| our Quarterly Report on Form 10-QSB for our fiscal quarter ended June 30, 2003 (filed with the SEC on August 14, 2003); | ||
| our Form 8-K (filed with the SEC on August 15, 2003); | ||
| our Form 8-K (filed with the SEC on September 3, 2003); | ||
| our Form 8-K (filed with the SEC on September 16, 2003); | ||
| our Form 8-K (filed with the SEC on November 13, 2003); | ||
| our Quarterly Report on Form 10-QSB for our fiscal quarter ended September 30, 2003 (filed with the SEC on November 13, 2003); | ||
| our registration statement on Form SB-2 (filed with the SEC on October 20, 2003); | ||
| our registration statement on Form SB-2/A (filed with the SEC on November 14, 2003); | ||
| all documents filed by us with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act after the date of this prospectus and before the termination of the offering. |
You may request a free copy of any of the documents incorporated by reference in this prospectus (other than exhibits, unless they are specifically incorporated by reference in the documents) by writing or telephoning us at the following address:
Electric City Corp. | ||
Attn: Investor Relations | ||
1280 Landmeier Road | ||
Elk Grove Village, IL 60007-2410 | ||
Telephone: (847) 437-1666 |
You should rely only on the information provided or incorporated by reference in this prospectus or in the applicable supplement to this prospectus. You should not assume that the information in this prospectus and the applicable supplement is accurate as of any date other than the date on the front cover of the document.
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
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PROSPECTUS SUMMARY
The following summary is qualified in its entirety by the more detailed information appearing elsewhere in this prospectus.
Our Company
Our Products
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Our EnergySaver product line is manufactured at our facilities in Elk Grove Village, Illinois, with manufacturing and assembly scaled to order demand. Building and environmental control services and solutions provided by Great Lakes are based out of a separate facility also located in Elk Grove Village, Illinois.
Giorgio Reverberi has patented in the U.S. and Italy certain technologies underlying the EnergySaver products. We have entered into a license agreement and series of agreements with Mr. Reverberi and our founder, Mr. Joseph Marino, relating to the license of the EnergySaver technology in the United States and certain other markets.
We are pursuing a multi-channel marketing and sales distribution strategy to bring our energy saving products to market. Our multi-channel approach includes the use of a direct sales force, distributors and manufacturers representatives.
The Offering | ||
Securities Offered | The selling stockholders are offering up to 17,660,651 shares of our common stock. | |
Terms of the Offering | We have agreed to use our best efforts to keep this registration statement effective until April 23, 2004. | |
Use of Proceeds | We will not receive any of the proceeds from any sale of the shares offered by this prospectus by the selling stockholders. To the extent the selling stockholders exercise their options or warrants, we intend to use the proceeds we receive from such exercise(s) for general corporate purposes. | |
American Stock Exchange Symbol | ELC |
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RISK FACTORS
You should carefully consider the risks and uncertainties described below and all of the other information included in this prospectus before you decide whether to purchase shares of our common stock. Any of the following risks could materially adversely affect our business, financial condition or operating results and could negatively affect the value of your investment.
Risks Related to Our Business
We have a limited operating history upon which to evaluate our potential for future success. |
We were formed in December 1997. To date, we have only generated limited revenues from the sale of our products and do not expect to generate significant revenues until we sell a significantly larger number of our products. Accordingly, we have only a limited operating history upon which you can base an evaluation of our business and prospects. The likelihood of our success must be considered in light of the risks and uncertainties frequently encountered by early stage companies like ours in an evolving market. If we are unsuccessful in addressing these risks and uncertainties, our business will be materially harmed.
Continuing losses and our inability to date to generate positive cash flow create a significant risk that we will be unable to continue as a going concern. |
We have incurred significant operating losses since inception and may not achieve or sustain profitability in the future. |
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A decrease in electric retail rates could lessen demand for our EnergySaver products. |
We have a license under certain patents and our ability to sell our products may be adversely impacted if the license expires or is terminated. |
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If we are not able to protect our intellectual property rights against infringement or others obtain intellectual property rights relating to energy management technology, we could lose our competitive advantage in the energy management market. |
Claims of patent infringement against us, regardless of merit, could result in the expenditure of significant financial and managerial resources by us. We may be forced to seek to enter license agreements with third parties (other than Mr. Reverberi) to resolve claims of infringement by our products of the intellectual property rights of third parties. These licenses may not be available on acceptable terms or at all. The failure to obtain such licenses on acceptable terms could have a negative effect on our business.
The loss of key personnel may harm our ability to obtain and retain customers, manage our rapid growth and compete effectively. |
If we are unable to manage our growth, it will adversely affect our business, the quality of our products and our ability to attract and retain key personnel. |
We are subject to the risks inherent in the expansion and growth of a business enterprise. Growth in our business will place a strain on our operational and administrative resources and increase the level of responsibility for our existing and new management personnel. To manage our growth effectively, we will need to:
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| further develop and improve our operating, information, accounting, financial and other internal systems and controls on a timely basis; | ||
| improve our business development, marketing and sales capabilities; and | ||
| expand, train, motivate and manage our employee base. |
Our current senior management has limited experience managing a publicly traded company. Our systems currently in place may not be adequate if we continue to grow and may need to be modified and enhanced. The skills of management currently in place may not be adequate if we continue to grow.
If our EnergySaver products do not achieve or sustain market acceptance, our ability to compete will be adversely affected. |
To date, we have not sold our EnergySaver product line in very large quantities and a sufficient market may not develop for it. Significant marketing will be required in order to establish a sufficient market for the EnergySaver products. The technology underlying these products may not become a preferred technology to address the energy management needs of our customers and potential customers. Failure to successfully develop, manufacture and commercialize products on a timely and cost-effective basis will have a material adverse effect on our ability to compete in the energy management market.
Failure to meet customers expectations or deliver expected technical performance could result in losses and negative publicity. |
Customer engagements involve the installation of energy management equipment that we design to help our clients reduce energy/power consumption. We rely on outside contractors to install our EnergySaver products. Any defects in this equipment and/or its installation or any other failure to meet our customers expectations could result in:
| delayed or lost revenues due to adverse customer reaction; | ||
| requirements to provide additional products and/or services to a customer at no charge; | ||
| negative publicity regarding us and our products, which could adversely affect our ability to attract or retain customers; and | ||
| claims for substantial damages against us, regardless of our responsibility for such failure. |
If sufficient additional funding is not available to us, the commercialization of our products and our ability to grow may be hindered. |
Our operations have not generated positive cash flow since the inception of the Company in 1997. We have funded our operations through the issuance of common and preferred stock and secured debt. Our ability to continue to operate until our cash flow turns positive may
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Raising additional capital or consummation of additional acquisitions through the issuance of equity or equity-linked securities could dilute your ownership interest in us. |
If we receive additional funds through the issuance of equity securities or convertible debt securities, our existing stockholders will likely experience dilution of their present equity ownership position and voting rights. Depending on the number of shares issued and the terms and conditions of the issuance, new equity securities could have rights, preferences, or privileges senior to those of our common stock.
Failure to effectively market our energy management products could impair our ability to sell large quantities of these products. |
One of the challenges we face in commercializing our energy management products is demonstrating the advantages of our products over more traditional products and competitive products. As we grow, we will need to further develop our marketing and sales force. In addition to our internal sales force, we rely on third parties to market and sell our products. We currently maintain a number of relationships and have a number of agreements with third parties regarding the marketing and distribution of our EnergySaver products and are dependent upon the efforts of these third parties in marketing and selling these products. Maintenance of these relationships is based primarily on an ongoing mutual business opportunity and a good overall working relationship. The current contracts associated with certain of these relationships allow the distributors to terminate the relationship upon 30 days written notice. Without these relationships, our ability to market and sell our EnergySaver products could be harmed and we may need to divert even more resources to increasing our internal sales force. If we are unable to expand our internal sales force and maintain our third party marketing relationships, our ability to generate significant revenues could be seriously harmed.
The distribution rights we have granted to third parties in specified geographic territories may make it difficult for us to grow our business in such territories if those distributors do not successfully market and support our products in those territories. We have in the past been, are
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now, and may in the future be, involved in disputes with distributors that have distribution rights in specified geographic territories, but are not achieving our goals. During 2000, we repurchased for cash and stock consideration the distribution rights from three distributors that were not meeting our sales goals. We may have to expend additional funds, incur debt or issue additional securities in the future to repurchase other distribution rights that we have granted or may grant in the future.
If our Virtual Negawatt Power Plan concept is unsuccessful, distribution of our EnergySaver product line may be impaired and our growth could suffer. |
If we do not successfully compete with others in the very competitive energy management market, we may not achieve profitability. |
Product liability claims could result in losses and could divert our managements time and resources. |
The manufacture and sale of our products creates a risk of product liability claims. Any product liability claims, with or without merit, could result in costly litigation and reduced sales, cause us to incur significant liabilities and divert our managements time, attention and resources. We do have product liability insurance coverage; however, there is no assurance that such insurance is adequate to cover all potential claims. The successful assertion of any such large claim against us could materially harm our liquidity and operating results.
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Our current internal manufacturing capacity is limited and if demand for our products increases significantly and we are unable to increase our capacity quickly and efficiently our business could suffer. |
Our ability to continue to pay dividends on our preferred stock with additional shares of preferred stock is limited, and once cash dividends are required to begin, the dividend rate will increase every six months. |
The last dividend payment date on which we will are permitted to pay dividends on our Series A Convertible Preferred stock with additional shares of Series A Convertible Preferred stock is September 30, 2004. The last such date applicable with respect to the Series C Convertible Preferred stock is June 30, 2005. The last such date applicable with respect to the Series D Convertible Preferred stock is June 30, 2006. Beginning with December 31, 2004 (in the case of Series A), September 30, 2005 (in the case of Series C) and September 30, 2006 (in the case of Series D Preferred), we will be required to begin paying dividends on our preferred stock in cash. In addition, once dividends become payable in cash for a series of preferred stock, the dividend rate will increase by 1/2 of 1% every six months, up to a maximum rate of 15% per annum, for such series of our preferred stock. Payment of such cash dividends could strain our liquidity and restrict or severely limit our ability to carry out our business objectives. Failure to pay the dividends in cash when required would constitute an event of default under the related agreements.
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Risks Related to this Offering
Because of the current market price of our common stock, in conjunction with the fact that we are a relatively small company with a history of operating losses, the future trading market for our stock may not be active on a consistent basis, which may make it difficult for you to sell your shares. |
The trading volume of our stock in the future will depend in part on our ability to increase our revenue and reduce or eliminate our operating losses. If an active and liquid trading market does not exist for our common stock on AMEX, you may have difficulty selling your shares.
The need to raise additional capital will most likely be dilutive to our current stockholders and could result in new investors receiving rights that are superior to those of existing stockholders. |
a liquidation preference of $20 per share; |
special approval rights in respect of certain actions by the Company, including any issuance of shares of capital stock by the Company (other than to pay dividends on the preferred and under certain other limited exceptions such as conversion of outstanding convertible securities) and any acquisition, sale, merger, joint venture, consolidation or reorganization involving the Company or any of its subsidiaries; |
a conversion price that may be below the market price of our common stock; | |
the Series A Preferred has the right to elect up to four directors; |
the right to vote with the holders of common stock on an as converted basis on all matters on which holders of our common stock are entitled to vote, except with respect to the election of directors or as otherwise provided by law; |
a right of first offer on the sale of equity by the Company in a private transaction; and |
anti-dilution protection that would adjust the conversion price on their preferred shares and the exercise price on their warrants in the event we issue equity at a price which is less than the conversion price or exercise price of their securities. |
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Joseph Marino, Mr. Richard Kiphart and DYDX may be able to control matters requiring stockholder approval or could cause our stock price to decline through future sales because they beneficially own a large percentage of our common stock. |
A significant percentage of the outstanding shares of our common stock, including the shares beneficially owned by Mr. Marino, Mr. Kiphart or DYDX, can be sold in the public market from time to time, subject to limitations imposed by Federal securities laws. The market price of our common stock could decline as a result of sales of a large number of our presently outstanding shares of common stock by Mr. Marino, Mr. Kiphart, DYDX or other stockholders in the public market or due to the perception that these sales could occur. This could also make it more difficult for us to raise funds through future offerings of our equity securities.
Provisions of our charter and by-laws, in particular our blank check preferred stock, could discourage an acquisition of our company that would benefit our stockholders. |
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USE OF PROCEEDS
PLAN OF DISTRIBUTION
The selling stockholders may sell all or a portion of the common stock subject to this prospectus and offered hereby from time to time directly or through one or more underwriters, broker-dealers or agents. If the common stock is sold through underwriters or broker-dealers, the selling stockholders will be responsible for underwriting discounts or commissions or agents commissions. Certain of the selling stockholders are also subject to stock trading agreements that restrict the amount of their public sales on any given day and within certain longer periods of time. The common stock may be sold in one or more transactions at fixed prices, at prevailing market prices at the time of the sale, at varying prices determined at the time of sale, or at negotiated prices. These sales may be effected in transactions, which may involve crosses or block transactions,
- | on any national securities exchange or quotation service on which the securities may be listed or quoted at the time of sale, | ||
- | in the over-the-counter market, |
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- | in transactions otherwise than on these exchanges or systems or in the over-the- counter market, | ||
- | through the writing of options, whether such options are listed on an options exchange or otherwise, or | ||
- | by any other legally available means. |
If the selling stockholders effect such transactions by selling shares of common stock to or through underwriters, broker-dealers or agents, such underwriters, brokers-dealers or agents may receive commissions in the form of discounts, concessions or commissions from the selling stockholders or commissions from purchasers of the shares of common stock for whom they may act as agent or to whom they may sell as principal (which discounts, concessions or commissions as to particular underwriters, brokers-dealers or agents may be in excess of those customary in the types of transactions involved). In connection with sales of the common stock or otherwise, the selling stockholders may enter into hedging transactions with broker-dealers, which may in turn engage in short sales of the common stock in the course of hedging in positions they assume. The selling stockholders may also sell shares of common stock short and deliver shares of common stock covered by this prospectus to close out short positions, provided that the short sale is made after the registration statement is declared effective and a copy of this prospectus is delivered in connection with the short sale. The selling stockholders may also loan or pledge shares of common stock to broker-dealers that in turn may sell such shares under this prospectus. Our directors and executive officers are not permitted to make short sales under our insider trading compliance program or under Section 16 of the Securities Exchange Act.
The selling stockholders and any broker-dealer participating in the distribution of the shares of common stock may be deemed to be underwriters within the meaning of the Securities Act, and any commissions paid, or any discounts or concessions allowed to any such broker-dealer may be deemed to be underwriting commissions or discounts under the Securities Act. At the time a particular offering of the shares of common stock is made, a prospectus supplement, if required, will be distributed which will set forth the aggregate amount of shares of common stock being offered and the terms of the offering, including the name or names of any broker-dealers or agents, any discounts, commissions and other terms constituting compensation from the selling stockholders and any discounts, commissions or concessions allowed or reallowed or paid to broker-dealers.
Under the securities laws of some states, the shares of common stock may be sold in such states only through registered or licensed brokers or dealers. In addition, in most states the shares of common stock may not be sold unless such shares have been registered or qualified for sale in such state or an exemption from registration or qualification is available and is complied with.
There can be no assurance that any selling stockholders will sell any or all of the shares of common stock registered pursuant to the registration statement of which this prospectus forms a part.
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The selling stockholders and any other person participating in such distribution will be subject to applicable provisions of the Exchange Act and the rules and regulations thereunder, including, without limitation, Regulation M of the Exchange Act, which may limit the timing of purchases and sales of any of the shares of common stock by the selling stockholders and any other participating person. Regulation M may also restrict the ability of any person engaged in the distribution of the shares of common stock to engage in market-making activities with respect to the shares of common stock.
All of the foregoing may affect the marketability of the shares of common stock and the ability of any person or entity to engage in market-making activities with respect to the shares of common stock.
Once sold under the registration statement, of which this prospectus forms a part, the shares of common stock will be freely tradable in the hands of persons other than our affiliates.
SELLING STOCKHOLDERS
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The owners of some of the shares being registered herein are parties to various trading agreements which limit the number of shares they may sell in any publicly traded transaction on any given day and within certain longer periods of time. The trading restrictions imposed by the trading agreements with respect to sales in publicly traded transactions do not transfer to a buyer of the securities being offered hereby.
The table below lists the selling stockholders and other information regarding the beneficial ownership of the common stock by each of the selling stockholders. The first column lists, for each selling stockholder, the number of shares of common stock held by such stockholder including shares issuable (pursuant to options or warrants) to such stockholder. The second column lists the shares of common stock (including shares issued or issuable upon exercise of options or warrants) being offered by this prospectus by each selling stockholder. The column titled Ownership After Offering assumes the sale of all of the shares offered by each selling stockholder, although each selling stockholder may sell all, some or none of his, her or its shares in this offering.
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Ownership After | ||||||||||||||||||||||||
Ownership Prior to Offering | Offering | |||||||||||||||||||||||
Securities Being | ||||||||||||||||||||||||
Selling Stockholder (25) | Shares | % | Offered | Shares | % | |||||||||||||||||||
Pam Aronson |
107,629 | * | 107,629 | 0 | 0 | % | ||||||||||||||||||
Aftbird & Co., nominee for
The Munder Power Plus Fund,
A series of Munder Series
Trust (formerly a series of
the Munder Funds, Inc.) |
1,324,695 | (1) | 3.801 | % | 1,324,695 | (1) | 0 | 0 | % | |||||||||||||||
Barretto Pacific Corporation |
20,000 | * | 20,000 | 0 | 0 | % | ||||||||||||||||||
Capstone Investments |
50,000 | (2) | * | 50,000 | (2) | 0 | 0 | % | ||||||||||||||||
Carson Conant Trust |
226,153 | (3) | * | 226,153 | (3) | 0 | 0 | % | ||||||||||||||||
Chappell Conant Trust |
226,153 | (4) | * | 226,153 | (4) | 0 | 0 | % | ||||||||||||||||
Marilee Conant |
852,015 | (5) | 2.458 | % | 852,015 | (5) | 0 | 0 | % | |||||||||||||||
Victor Conant |
852,015 | (6) | 2.458 | % | 852,015 | (6) | 0 | 0 | % | |||||||||||||||
Jason Diamond |
50,000 | (7) | * | 50,000 | (7) | 0 | 0 | % | ||||||||||||||||
DYDX Consulting LLC(8) |
3,439,500 | (9) | 9.711 | % | 947,546 | (9) | 2,491,954 | 7.229 | % | |||||||||||||||
Engle Group |
5,000 | * | 5,000 | 0 | 0 | % | ||||||||||||||||||
Greg Hawkins |
20,000 | * | 20,000 | 0 | 0 | % | ||||||||||||||||||
Henning Capital |
40,000 | (10) | * | 40,000 | (10) | 0 | 0 | % | ||||||||||||||||
Richard Kiphart |
8,132,243 | (11) | 19.338 | % | 582,403 | (12) | 7,549,840 | 18.007 | % | |||||||||||||||
Kevin McKneely |
1,725,075 | (13) | 4.950 | % | 1,725,075 | (13) | 0 | 0 | % | |||||||||||||||
Patrick McKneely |
215,639 | (14) | * | 215,639 | (14) | 0 | 0 | % | ||||||||||||||||
Ryan McKneely |
215,639 | (15) | * | 215,639 | (15) | 0 | 0 | % | ||||||||||||||||
Earl Nightingale |
107,629 | (16) | * | 107,629 | (16) | 0 | 0 | % | ||||||||||||||||
Pino Manufacturing LLC(17) |
7,954,852 | (18) | 21.992 | % | 7,954,852 | (18) | 0 | 0 | % | |||||||||||||||
R&R Investments |
50,000 | (19) | * | 50,000 | (19) | 0 | 0 | % | ||||||||||||||||
William Ritger |
27,000 | * | 27,000 | 0 | 0 | % | ||||||||||||||||||
SF Capital Partners |
2,876,136 | (20) | 7.811 | % | 791,956 | (21) | 2,384,180 | 6.475 | % | |||||||||||||||
TheStockBroker.com |
15,000 | (22) | * | 15,000 | (22) | 0 | 0 | % | ||||||||||||||||
TheStockPage.com |
160,000 | (23) | * | 160,000 | (23) | 0 | 0 | % | ||||||||||||||||
Michael Stelter(24) |
1,044,252 | 3.029 | % | 1,044,252 | 0 | 0 | % | |||||||||||||||||
Wall & Broad Equities |
50,000 | * | 50,000 | 0 | 0 | % |
* Less than 1% |
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(1) | Includes warrants to purchase 375,000 shares of common stock. | |
(2) | Includes warrants to purchase 50,000 shares of common stock. | |
(3) | Includes options to purchase 49,946 shares of common stock. | |
(4) | Includes options to purchase 49,946 shares of common stock. | |
(5) | Includes options to purchase 188,168 shares of common stock. | |
(6) | Includes options to purchase 188,168 shares of common stock. | |
(7) | Includes warrants to purchase 50,000 shares of common stock. | |
(8) | Mr. Nicholas Konstant, one of our founders, holds a 100% membership interest in DYDX. | |
(9) | Includes an option to purchase 947,546 shares of common stock. | |
(10) | Includes warrants to purchase 25,000 shares of common stock. | |
(11) | Includes 550,560 shares of common stock, warrants to purchase 1,006,053 shares of common stock, 3,556,060 shares of common stock issuable upon conversion of shares of Series A Convertible Preferred Stock, 2,336,130 shares of common stock issuable upon conversion of Series C Convertible Preferred Stock, 552,190 shares of common stock issuable upon conversion of shares of Series D Convertible Preferred Stock, and 131,250 shares of common stock issuable upon exercise and conversion of warrants to purchase shares of Series D Convertible Preferred Stock. | |
(12) | Includes 456,429 shares of common stock and warrants to purchase 125,974 shares of common stock. | |
(13) | Includes options to purchase 380,984 shares of common stock. | |
(14) | Includes options to purchase 47,624 shares of common stock. | |
(15) | Includes options to purchase 47,624 shares of common stock. | |
(16) | Includes options to purchase 23,770 shares of common stock. | |
(17) | Mr. Joseph Marino, one of our founders and former Chairman and CEO, holds a 100% ownership interest in Pino Manufacturing. | |
(18) | Includes options to purchase 1,700,000 shares of common stock. | |
(19) | Includes warrants to purchase 50,000 shares of common stock. |
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(20) | Includes 528,556 shares of common stock and 2,347,580 shares of common stock issuable upon conversion of shares of the Companys Series A and Series D Convertible Preferred Stock, but excludes 717,188 shares of common stock that may become issuable pursuant to warrants held by SF Capital. The warrants held by SF Capital, which entitle it to purchase up to 717,188 share of common stock, contain provisions known as exercise caps which prohibit the holder of the Warrants (and its affiliates) from exercising such warrants to the extent that giving effect to such exercise, such holder would beneficially own in excess of 4.999% and 9.999% of the Companys outstanding common stock, as the case may be. The holder can waive the 4.999% limit, but such waiver will not become effective until the 61st day after such notice is delivered to the Company, and these limits will not restrict the number of shares of Common Stock which a holder may receive or beneficially own in order to determine the amount of securities or other consideration that such holder may receive in the event of a merger or other business combination or reclassification involving the Company. The Selling Stockholder table set forth above reflects the operation of such exercise caps in that we have not included the 717,188 shares of common stock issuable pursuant to such warrants as SF Capital has advised us that it does not beneficially own such shares due to the fact that it cannot exercise its right to purchase these shares at this time. In the absence of such caps, SF Capital would be able to purchase all the shares issuable upon exercise of these warrants and would have a beneficial ownership percentage of 9.573%. | |
(21) | Includes warrants to purchase 300,000 shares of common stock. | |
(22) | Includes warrants to purchase 15,000 shares of common stock. | |
(23) | Includes warrants to purchase 160,000 shares of common stock. | |
(24) | Michael Stelter is one of our co-founders and has been one of our directors since our incorporation in June 1998. | |
(25) | Munder Power Plus Fund, Richard Kiphart, and SF Capital Partners have entered into stock trading agreements, which among other things, place restrictions on the number of shares they can sell publicly at any given time and from time to time under certain conditions. |
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LEGAL MATTERS
Certain legal matters in connection with the shares of common stock offered hereby will be passed upon for Electric City by Schwartz, Cooper, Greenberger & Krauss, Chtd. of Chicago, Illinois.
EXPERTS
The financial statements incorporated by reference in this Prospectus have been audited by BDO Seidman, LLP, independent certified public accountants, to the extent and for the periods set forth in their report (which contains an explanatory paragraph regarding the Companys ability to continue as a going concern) incorporated by reference herein, and is included in reliance upon such report given upon the authority of said firm as experts in auditing and accounting.
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INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses Of Issuance And Distribution.
SEC Registration Fee |
$ | 2,037.00 | ||
Legal Fees and Expenses |
15,000.00 | |||
Accounting Fees and Expenses |
11,000.00 | |||
Costs of Printing |
500.00 | |||
Miscellaneous Expenses |
| |||
Total |
$ | 28,537.00 | ||
Item 15. Indemnification of Directors and Officers
Subsection (a) of Section 145 of the Delaware General Corporation Law empowers a corporation to indemnify any person who was or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) by reason of the fact that he or she is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him or her in connection with such action, suit or proceeding if he or she acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful.
Subsection (b) of Section 145 empowers a corporation to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that he or she is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys fees) actually and reasonably incurred by him or her in connection with the defense or settlement of such action or suit if he or she acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the corporation and except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all of the circumstances of the
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case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper.
Section 145 further provides that to the extent a director or officer of a corporation has been successful in the defense of any action, suit or proceeding referred to in subsection (a) and (b) or in the defense of any claim, issue or matter therein, he or she shall be indemnified against expenses (including attorneys fees) actually and reasonably incurred by him or her in connection therewith; that the indemnification provided by Section 145 shall not be deemed exclusive of any other rights to which the indemnified party may be entitled; and that the scope of indemnification extends to directors, officers, employees, or agents of a constituent corporation absorbed in a consolidation or merger and persons serving in that capacity at the request of the constituent corporation for another. Section 145 also empowers a corporation to purchase and maintain insurance on behalf of a director or officer of the corporation against any liability asserted against him or her or incurred by him or her in any such capacity or arising out of his or her status as such whether or not the corporation would have the power to indemnify him or her against such liabilities under Section 145.
Article VIII of Electric Citys By-laws specifies that Electric City shall indemnify its directors, officers, employees and agents to the full extent that such right of indemnity is permitted by law. This provision of the By-laws is deemed to be a contract between Electric City and each director and officer who serves in such capacity at any time while such provision and the relevant provisions of the Delaware General Corporation Law are in effect, and any repeal or modification thereof shall not offset any right to indemnification in respect of action, suit or proceeding theretofore or thereafter brought or threatened based in whole or in part upon any such state of facts. The amendment or repeal of such provision of the By-Laws may be effected by the affirmative vote of the holders of a majority in interest of all outstanding capital stock of Electric City entitled to vote, in person or by proxy, at any annual or special meeting in which a quorum is present. The By-Laws may also be amended, adopted or repealed in whole or in part by actions of the majority of the board of directors. In certain circumstances, 75% of the voting power of all outstanding shares of the Series A and Series C Convertible Preferred Stock of Electric City is also required to approve any amendment of the By-Laws.
Electric City has executed indemnification agreements with certain officers pursuant to which Electric City has agreed to indemnify such parties to the full extent permitted by law, subject to certain exceptions, if they become subject to an action because of serving as a director, officer, employee, agent or fiduciary of Electric City.
Section 102(b)(7) of the Delaware General Corporation Law enables a corporation in its certificate of incorporation to limit the personal liability of members of its board of directors for violation of a directors fiduciary duty of care. This section does not, however, limit the liability of a director for breaching his or her duty of loyalty, failing to act in good faith, engaging in intentional misconduct or knowingly violating a law, authorizing unlawful payments of dividends or unlawful redemptions or stock purchases as contemplated by Section 174 of Delaware General Corporation Law, or from any transaction in which the director derived an improper personal benefit. This section also will have no effect on claims arising under the federal securities laws.
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Electric Citys Amended and Restated Certificate of Incorporation limits the liability of its directors as authorized by Section 102(b)(7). The affirmative vote of the holders of a majority of the voting power of all outstanding shares of the capital stock of Electric City, and, in certain circumstances, 75% of the voting power of all outstanding shares of the Series A and Series C convertible preferred stock of Electric City, is required to amend such provisions.
Electric City has obtained liability insurance for the benefit of its directors and officers which provides coverage for losses of directors and officers for liabilities arising out of claims against such persons acting as directors or officers of Electric City (or any subsidiary thereof) due to any breach of duty, neglect, error, misstatement, misleading statement, omission or act done by such directors and officers, except as prohibited by law.
Exhibit | ||
Number | Description | |
4.24 | Securities Purchase Agreement dated December 16, 2002, between Electric City Corp. and Munder Power Plus Fund, A Series of the Munder Funds, Inc. (Incorporated by references to the Companys Annual Report filed on Form 10-KSB for the period ended December 31, 2002.) | |
4.25 | Stock Trading Agreement dated December 16, 2002, between Electric City Corp. and Munder Power Plus Fund, A Series of the Munder Funds, Inc. (Incorporated by reference to the Companys Annual Report filed on Form 10-KSB for the period ended December 31, 2002.) | |
4.26 | Securities Purchase Agreement dated February 27, 2003, between Electric City Corp. and SF Capital Partners Ltd. (Incorporated by reference to the Companys Annual Report filed on Form 10-KSB for the period ended December 31, 2002.) | |
4.27 | Stock Trading Agreement dated February 27, 2003, between Electric City Corp. and SF Capital Partners Ltd. (Incorporated by reference to the Companys Annual Report filed on Form 10-KSB for the period ended December 31, 2002.) | |
4.28 | Securities Purchase Agreement dated April 17, 2003, between Electric City Corp. and Munder Power Plus Fund, A Series of the Munder Funds, Inc. (Incorporated by reference to the Companys Registration Statement on Form S-3 filed on May 5, 2003 (No. 333-105084).) | |
4.29 | Acknowledgment and Amendment to Stock Trading Agreement dated April 17, 2003, between Electric City Corp. and Munder Power Plus Fund, A Series of the Munder Funds, Inc. (Incorporated by reference to the Companys Registration Statement on Form S-3 filed on May 5, 2003 (No. 333-105084).) | |
4.30 | Securities Purchase Agreement dated April 23, 2003, between Electric City Corp. and Richard P. Kiphart (Incorporated by reference to the Companys Registration Statement on Form S-3 filed on May 5, 2003 (No. 333-105084).) | |
4.31 | Stock Trading Agreement dated April 23, 2003, between Electric City Corp. and |
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Exhibit | ||
Number | Description | |
Richard P. Kiphart. (Incorporated by reference to the Companys Registration Statement on Form S-3 filed on May 5, 2003 (No. 333-105084).) | ||
4.32 | Stock Trading Agreement dated May 31, 2003 between Dale Hoppensteadt and Electric City Corp. (Incorporated herein by reference to Electric City Corps Current Report on Form 8-K dated June 3, 2003 filed with the SEC on June 5, 2003.) | |
4.33 | Securities Purchase Agreement dated as of June 27, 2003, between Electric City Corp. and Cinergy Ventures II, LLC, Mr. Richard Kiphart, SF Capital Partners, Ltd., John Thomas Hurvis Revocable Trust and Mr. David Asplund (Incorporated by reference to the Companys Current Report on Form 8-K filed on July 2, 2003.) | |
4.34 | Certificate Of Designations, Preferences And Relative, Participating, Optional And Other Special Rights Of Preferred Stock And Qualifications, Limitations And Restrictions Thereof Of Series D Convertible Preferred Stock Of Electric City Corp. (Incorporated by reference to the Companys Current Report on Form 8-K filed on July 2, 2003.) | |
4.35 | Stock Trading Agreement dated as of June 27, 2003, between Electric City Corp. and Cinergy Ventures II, LLC, Mr. Richard Kiphart, SF Capital Partners, Ltd., John Thomas Hurvis Revocable Trust and Mr. David Asplund. (Incorporated by reference to the Companys Current Report on Form 8-K filed on July 2, 2003.) | |
4.36 | Registration Rights Agreement dated September 11, 2003 by and between Electric City Corp. and Laurus Master Fund, Ltd. (Incorporated herein by reference to Electric City Corps Current Report on Form 8-K dated September 11, 2003 filed with the SEC on September 16, 2003.) | |
4.37 | Registration Rights Agreement dated September 11, 2003 by and between Electric City Corp. and Laurus Master Fund, Ltd. (Incorporated herein by reference to Electric City Corps Current Report on Form 8-K dated September 11, 2003 filed with the SEC on September 16, 2003.) | |
4.38 | Joinder and Second Amendment to Investor Rights Agreement dated as of June 27, 2003 by and among Electric City Corp., Newcourt Capital USA Inc., Newcourt Capital Securities, Inc., EP Power Finance L.L.C., Morgan Stanley Dean Witter Equity Funding, Inc., Originators Investment Plan, L.P., Duke Capital Partners, LLC, Leaf Mountain Company, LLC, Richard P. Kiphart, Cinergy Ventures II, LLC, SF Capital Partners, Ltd., John Thomas Hurvis Revocable Trust and David R. Asplund. (Incorporated by reference to the Companys Current Report on Form 8-K filed on July 2, 2003.) | |
4.39* | Joinder to Stockholders Agreement dated as of December 19, 2003 by and among Electric City Corp., Augustine Fund LP, Technology Transformation Venture Fund, LP and John Donohue. | |
4.40* | Joinder to Investor Rights Agreement dated as of December 19, 2003 by and among Electric City Corp., Augustine Fund LP, Technology Transformation Venture Fund, LP and John Donohue. | |
4.41* | Joinder to Stock Trading Agreement dated as of December 19, 2003 by and among Electric City Corp., Augustine Fund LP, Technology |
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Exhibit | ||
Number | Description | |
Transformation Venture Fund, LP and John Donohue. | ||
4.42* | Warrant Certificate to Purchase 50,000 shares of Common Stock Par Value $0.0001 Per Share, of Electric City Corp. issued to Jason Diamond. | |
4.43* | Warrant Certificate to Purchase 27,000 shares of Common Stock Par Value $0.0001 Per Share, of Electric City Corp. issued to William Ritger | |
4.44* | Warrant Certificate to Purchase 15,000 shares of Common Stock Par Value $0.0001 Per Share, of Electric City Corp. issued to Stockbroker.com | |
4.45* | Warrant Certificate to Purchase 5,000 shares of Common Stock Par Value $0.0001 Per Share, of Electric City Corp. issued to Engle Group | |
4.46* | Warrant Certificate to Purchase 50,000 shares of Common Stock Par Value $0.0001 Per Share, of Electric City Corp. issued to R&R Investments | |
4.47* | Warrant Certificate to Purchase 50,000 shares of Common Stock Par Value $0.0001 Per Share, of Electric City Corp. issued to Barretto Pacific Corporation | |
4.48* | Warrant Certificate to Purchase 50,000 shares of Common Stock Par Value $0.0001 Per Share, of Electric City Corp. issued to Wall & Broad Equities | |
4.49* | Warrant Certificate to Purchase 20,000 shares of Common Stock Par Value $0.0001 Per Share, of Electric City Corp. issued to Gregory Hawkins | |
4.50* | Warrant Certificate to Purchase 160,000 shares of Common Stock Par Value $0.0001 Per Share, of Electric City Corp. issued to TheStockPage.com | |
4.51* | Warrant Certificate to Purchase 40,000 shares of Common Stock Par Value $0.0001 Per Share, of Electric City Corp. issued to Henning Capital Ltd. | |
4.52* | Warrant Certificate to Purchase 50,000 shares of Common Stock Par Value $0.0001 Per Share, of Electric City Corp. issued to Wall & Broad Equities | |
4.53* | Warrant Certificate to Purchase 10,000 shares of Common Stock Par Value $0.0001 Per Share, of Electric City Corp. issued to Catalina Capital Management | |
4.54* | Warrant Certificate to Purchase 100,000 shares of Common Stock Par Value $0.0001 Per Share, of Electric City Corp. issued to Utica Properties | |
5.1 | Opinion of Schwartz Cooper Greenberger & Krauss, Chtd. with respect to the legality of the common stock being registered. (Incorporated herein by reference to Electric City Corps Registration Statement on Form S-3/A filed on August 11, 2003 (No. 333-105084).) | |
23.1* | Consent of BDO Seidman, LLP. | |
23.2 | Consent of Schwartz Cooper Greenberger & Krauss, Chtd. (Incorporated herein by reference to Electric City Corps Registration Statement on Form S-3/A filed on August 11, 2003 (No. 333-105084).) |
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Exhibit | ||
Number | Description | |
24.1* | Power of Attorney (included on the signature page hereof). |
* Filed herewith
Item 17. Undertakings
The undersigned registrant hereby will:
(1) File, during any period in which it offers or sells securities, a post-effective amendment to this registration statement to: |
(i) Include any prospectus required by Section 10(a)(3) of the Securities Act; |
(ii) Reflect in the prospectus any facts or events which, individually or together, represent a fundamental change in the information in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of a prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the Calculation of Registration Fee table in the effective registration statement; and |
(iii) Include any additional or changed material information on the plan of distribution; |
provided, however, that paragraphs (i) and (ii) do not apply if the information required to be included in a post-effective amendment thereby is contained in periodic reports filed by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act that are incorporated by reference in the registration statement. |
(2) For determining liability under the Securities Act, treat each such post-effective amendment as a new registration statement of securities offered, and the offering of the securities at that time shall be deemed to be the initial bona fide offering; and |
(3) File a post-effective amendment to remove from registration any of the securities that remain unsold at the end of the offering. |
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in such Securities Act and is, therefore, unenforceable. In the event a claim against the registrant for indemnification against such liabilities (other than the
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SIGNATURES
ELECTRIC CITY CORP. | ||||
By: | /s/ John Mitola | |||
John Mitola | ||||
Chief Executive Officer |
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POWER OF ATTORNEY
The undersigned hereby constitutes and appoints John Mitola and Jeffrey Mistarz, and each of them, as his true and lawful attorneys-in-fact and agents, jointly and severally, with full power of substitution and resubstitution, for and in his stead, in any and all capacities, to sign on his behalf this Registration Statement on Form S-3 in connection with the registration of common stock by the registrant and offering thereof pursuant hereto and to execute any amendments thereto (including post-effective amendments), including a registration statement filed pursuant to Rule 462(b), or certificates that may be required in connection with this Registration Statement, and to file the same, with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission and granting unto said attorneys-in-fact and agents, and each of them, jointly and severally, the full power and authority to do and perform each and every act and thing necessary or advisable to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, jointly or severally, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities below.
Signature | Title | Date | ||
/s/ John P. Mitola | Chief Executive Officer | 3/24/03 | ||
John P. Mitola | ||||
/s/ Jeffrey Mistarz | Chief Financial Officer and Treasurer | 3/24/03 | ||
Jeffrey Mistarz | ||||
/s/ Robert Manning | Chairman of the Board | 3/25/03 | ||
Robert Manning | ||||
/s/ Anthony Ashley | Director | 5/2/03 | ||
Anthony Ashley | ||||
/s/ David Asplund | Director | 3/31/03 | ||
David Asplund | ||||
/s/ Frederic Brace | Director | 3/24/03 | ||
Frederic Brace | ||||
/s/ Kevin McEneely | Director | 3/25/03 | ||
Kevin McEneely | ||||
/s/ Gerald Pientka | Director | 5/5/03 | ||
Gerald Pientka | ||||
/s/ Michael Stelter | Director | 3/26/03 | ||
Michael Stelter | ||||
/s/ Robert Wagner | Director | 3/26/03 | ||
Robert Wagner, Jr. |
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INDEX TO EXHIBITS
Exhibit | ||
Number | Description | |
4.24 | Securities Purchase Agreement dated December 16, 2002, between Electric City Corp. and Munder Power Plus Fund, A Series of the Munder Funds, Inc. (Incorporated by references to the Companys Annual Report filed on Form 10-KSB for the period ended December 31, 2002.) | |
4.25 | Stock Trading Agreement dated December 16, 2002, between Electric City Corp. and Munder Power Plus Fund, A Series of the Munder Funds, Inc. (Incorporated by references to the Companys Annual Report filed on Form 10-KSB for the period ended December 31, 2002.) | |
4.26 | Securities Purchase Agreement dated February 27, 2003, between Electric City Corp. and SF Capital Partners, Ltd. (Incorporated by references to the Companys Annual Report filed on Form 10-KSB for the period ended December 31, 2002.) | |
4.27 | Stock Trading Agreement dated February 27, 2003, between Electric City Corp. and SF Capital Partners, Ltd. (Incorporated by references to the Companys Annual Report filed on Form 10-KSB for the period ended December 31, 2002.) | |
4.28 | Securities Purchase Agreement dated April 17, 2003, between Electric City Corp. and Munder Power Plus Fund, A Series of the Munder Funds, Inc. (Incorporated by reference to the Companys Registration Statement on Form S-3 filed on May 5, 2003 (No. 333-105084).) | |
4.29 | Acknowledgment and Amendment to Stock Trading Agreement dated April 17, 2003, between Electric City Corp. and Munder Power Plus Fund, A Series of the Munder Funds, Inc. (Incorporated by reference to the Companys Registration Statement on Form S-3 filed on May 5, 2003 (No. 333-105084).) | |
4.30 | Securities Purchase Agreement dated April 23, 2003, between Electric City Corp. and Richard P. Kiphart. (Incorporated by reference to the Companys Registration Statement on Form S-3 filed on May 5, 2003 (No. 333-105084).) | |
4.31 | Stock Trading Agreement dated April 23, 2003, between Electric City Corp. and Richard P. Kiphart. (Incorporated by reference to the Companys Registration Statement on Form S-3 filed on May 5, 2003 (No. 333-105084).) | |
4.32 | Stock Trading Agreement dated May 31, 2003 between Dale Hoppensteadt and Electric City Corp. (Incorporated herein by reference to Electric City Corps Current Report on Form 8-K dated June 3, 2003 filed with the SEC on June 5, 2003.) | |
4.33 | Securities Purchase Agreement dated as of June 27, 2003, between Electric City Corp. and Cinergy Ventures II, LLC, Mr. Richard Kiphart, SF Capital Partners, Ltd., John Thomas Hurvis Revocable Trust and Mr. David Asplund. (Incorporated by reference to the Companys Current Report on Form 8-K filed on July 2, 2003.) | |
4.34 | Certificate Of Designations, Preferences And Relative, Participating, Optional And Other Special Rights Of Preferred Stock And Qualifications, Limitations |
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Exhibit | ||
Number | Description | |
And Restrictions Thereof Of Series D Convertible Preferred Stock Of Electric City Corp. (Incorporated by reference to the Companys Current Report on Form 8-K filed on July 2, 2003.) | ||
4.35 | Stock Trading Agreement dated as of June 27, 2003, between Electric City Corp. and Cinergy Ventures II, LLC, Mr. Richard Kiphart, SF Capital Partners, Ltd., John Thomas Hurvis Revocable Trust and Mr. David Asplund. (Incorporated by reference to the Companys Current Report on Form 8-K filed on July 2, 2003.) | |
4.36 | Registration Rights Agreement dated September 11, 2003 by and between Electric City Corp. and Laurus Master Fund, Ltd. (Incorporated herein by reference to Electric City Corps Current Report on Form 8-K dated September 11, 2003 filed with the SEC on September 16, 2003.) | |
4.37 | Registration Rights Agreement dated September 11, 2003 by and between Electric City Corp. and Laurus Master Fund, Ltd. (Incorporated herein by reference to Electric City Corps Current Report on Form 8-K dated September 11, 2003 filed with the SEC on September 16, 2003.) | |
4.38 | Joinder and Second Amendment to Investor Rights Agreement dated as of June 27, 2003 by and among Electric City Corp., Newcourt Capital USA Inc., Newcourt Capital Securities, Inc., EP Power Finance L.L.C., Morgan Stanley Dean Witter Equity Funding, Inc., Originators Investment Plan, L.P., Duke Capital Partners, LLC, Leaf Mountain Company, LLC, Richard P. Kiphart, Cinergy Ventures II, LLC, SF Capital Partners, Ltd., John Thomas Hurvis Revocable Trust and David R. Asplund. (Incorporated by reference to the Companys Current Report on Form 8-K filed on July 2, 2003.) | |
4.39* | Joinder to Stockholders Agreement dated as of December 19, 2003 by and among Electric City Corp., Augustine Fund LP, Technology Transformation Venture Fund, LP and John Donohue. | |
4.40* | Joinder to Investor Rights Agreement dated as of December 19, 2003 by and among Electric City Corp., Augustine Fund LP, Technology Transformation Venture Fund, LP and John Donohue. | |
4.41* | Joinder to Stock Trading Agreement dated as of December 19, 2003 by and among Electric City Corp., Augustine Fund LP, Technology Transformation Venture Fund, LP and John Donohue. | |
4.42* | Warrant Certificate to Purchase 50,000 shares of Common Stock Par Value $0.0001 Per Share, of Electric City Corp. issued to Jason Diamond. | |
4.43* | Warrant Certificate to Purchase 27,000 shares of Common Stock Par Value $0.0001 Per Share, of Electric City Corp. issued to William Ritger | |
4.44* | Warrant Certificate to Purchase 15,000 shares of Common Stock Par Value $0.0001 Per Share, of Electric City Corp. issued to Stockbroker.com | |
4.45* | Warrant Certificate to Purchase 5,000 shares of Common Stock Par Value $0.0001 Per Share, of Electric City Corp. issued to Engle Group | |
4.46* | Warrant Certificate to Purchase 50,000 shares of Common Stock Par Value $0.0001 Per Share, of Electric City Corp. issued to R&R Investments |
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Exhibit | ||
Number | Description | |
4.47* | Warrant Certificate to Purchase 50,000 shares of Common Stock Par Value $0.0001 Per Share, of Electric City Corp. issued to Barretto Pacific Corporation | |
4.48* | Warrant Certificate to Purchase 50,000 shares of Common Stock Par Value $0.0001 Per Share, of Electric City Corp. issued to Wall & Broad Equities | |
4.49* | Warrant Certificate to Purchase 20,000 shares of Common Stock Par Value $0.0001 Per Share, of Electric City Corp. issued to Gregory Hawkins | |
4.50* | Warrant Certificate to Purchase 160,000 shares of Common Stock Par Value $0.0001 Per Share, of Electric City Corp. issued to TheStockPage.com | |
4.51* | Warrant Certificate to Purchase 40,000 shares of Common Stock Par Value $0.0001 Per Share, of Electric City Corp. issued to Henning Capital Ltd. | |
4.52* | Warrant Certificate to Purchase 50,000 shares of Common Stock Par Value $0.0001 Per Share, of Electric City Corp. issued to Wall & Broad Equities | |
4.53* | Warrant Certificate to Purchase 10,000 shares of Common Stock Par Value $0.0001 Per Share, of Electric City Corp. issued to Catalina Capital Management | |
4.54* | Warrant Certificate to Purchase 100,000 shares of Common Stock Par Value $0.0001 Per Share, of Electric City Corp. issued to Utica Properties | |
5.1 | Opinion of Schwartz Cooper Greenberger & Krauss, Chtd. with respect to the legality of the common stock being registered. (Incorporated herein by reference to Electric City Corps Registration Statement on Form S-3/A filed on August 11, 2003 (No. 333-105084).) | |
23.1* | Consent of BDO Seidman, LLP. | |
23.2 | Consent of Schwartz Cooper Greenberger & Krauss, Chtd. (Incorporated herein by reference to Electric City Corps Registration Statement on Form S-3/A filed on August 11, 2003 (No. 333-105084).) | |
24.1* | Power of Attorney (included on the signature page hereof). |
* Filed herewith
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