UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 2 TO
SCHEDULE 13D
Under the Securities Exchange Act of 1934
ELECTRIC CITY CORP.
-------------------
(Name of Issuer)
Common Stock, $0.0001 per share par value
-----------------------------------------
(Title of Class of Securities)
284868 10 6
--------------
(CUSIP Number)
James P. Shanahan
Senior Vice President
CIT Group Inc.
1 CIT Drive
Livingston, NJ 07039
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
With copies to:
Karen Scowcroft
Vice President
Newcourt Capital USA Inc.
CIT Capital Securities LLC
1211 Avenue of the Americas, 22nd Floor
New York, NY 10036
----------
March 22, 2004
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition that is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box
|_|.
NOTE: Schedules filed in paper format shall include a signed original and five
copies of the schedules, including all exhibits. See Rule 13d-7 for other
parties to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
AMENDMENT NO. 2 TO SCHEDULE 13D
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CUSIP No. 284868 10 6 Page 2 of 12 Pages
---------------------- -------------------
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1 NAME OF REPORTING PERSON CIT Group Inc.
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON 65-1051192
--------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [x]
--------------------------------------------------------------------------------
3 SEC USE ONLY
--------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
AF
--------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS
2(d) OR 2(e) [ ]
--------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware
--------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES 0
BENEFICIALLY -------------------------------------------------------
OWNED BY
EACH 8 SHARED VOTING POWER
REPORTING 7,373,247**
PERSON -------------------------------------------------------
WITH
9 SOLE DISPOSITIVE POWER
0
-------------------------------------------------------
10 SHARED DISPOSITIVE POWER
7,373,247**
--------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
7,373,247**
--------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES SHARES* [ ]
--------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
15.3%**
--------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
CO
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*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
**SEE ITEM 5 OF THIS AMENDMENT NO. 2 TO SCHEDULE 13D.
AMENDMENT NO. 2 TO SCHEDULE 13D
---------------------- -------------------
CUSIP No. 284868 10 6 Page 3 of 12 Pages
---------------------- -------------------
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1 NAME OF REPORTING PERSON Newcourt Capital USA Inc.
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON 36-3871861
--------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [x]
--------------------------------------------------------------------------------
3 SEC USE ONLY
--------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
WC
--------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS
2(d) OR 2(e) [ ]
--------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware
--------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES 0
BENEFICIALLY -------------------------------------------------------
OWNED BY
EACH 8 SHARED VOTING POWER
REPORTING 7,373,247**
PERSON -------------------------------------------------------
WITH
9 SOLE DISPOSITIVE POWER
0
-------------------------------------------------------
10 SHARED DISPOSITIVE POWER
7,373,247**
--------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
7,373,247**
--------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES SHARES* [ ]
--------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
15.3%**
--------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
CO
--------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
**SEE ITEM 5 OF THIS AMENDMENT NO. 2 TO SCHEDULE 13D.
AMENDMENT NO. 2 TO SCHEDULE 13D
---------------------- -------------------
CUSIP No. 284868 10 6 Page 4 of 12 Pages
---------------------- -------------------
--------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON CIT Capital Securities LLC
(formerly Newcourt Capital Securities, Inc)
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON 02-0722166
--------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [x]
--------------------------------------------------------------------------------
3 SEC USE ONLY
--------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
WC
--------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS
2(d) OR 2(e) [ ]
--------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware
--------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES 0
BENEFICIALLY -------------------------------------------------------
OWNED BY
EACH 8 SHARED VOTING POWER
REPORTING 3,314,830**
PERSON -------------------------------------------------------
WITH
9 SOLE DISPOSITIVE POWER
0
-------------------------------------------------------
10 SHARED DISPOSITIVE POWER
3,314,830**
--------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,314,830**
--------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES SHARES* [ ]
--------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
7.5%**
--------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
CO
--------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
**SEE ITEM 5 OF THIS AMENDMENT NO. 2 TO SCHEDULE 13D.
AMENDMENT NO. 2 TO SCHEDULE 13D
This Amendment No. 2 amends and restates in its entirety the Statement on
Schedule 13D dated April 18, 2001, as filed with the Securities and Exchange
Commission, as amended by Amendment No. 1 to the Statement on Schedule 13D,
dated September 7, 2001.
Item 1. Security and Issuer
This schedule relates to the beneficial ownership of shares of common
stock, $.0001 par value per share ("Common Stock"), of Electric City Corp., a
Delaware corporation (the "Company"). The principal executive offices of the
Company are located at 1280 Landmeier Road, Elk Grove Village, IL 60007.
The summary descriptions of certain agreements and documents contained in
this Amendment No. 2 to Schedule 13D are qualified in their entirety by
reference to the complete texts of such agreements and documents, which are
filed as exhibits hereto and incorporated herein by reference.
Item 2. Identity and Background
(a) - (c) On July 8, 2002, Tyco Capital Ltd., a wholly-owned subsidiary of
Tyco International Ltd. ("Tyco"), completed a sale of 100% of its shares of the
common stock of CIT Group Inc. (Del), a Delaware corporation ("CIT"), in an
initial public offering. In connection with the offering, a reorganization was
effectuated on July 2, 2002 whereby CIT Group Inc., a Nevada corporation and
formerly known as The CIT Group, Inc. ("CIT (Nevada)"), was merged with and into
its parent Tyco Capital Holding, Inc., a Nevada corporation and formerly known
as CIT Holdings (NV) Inc. ("TCH"), immediately after which that combined entity
was further merged with and into CIT (hereinafter, the "Reorganization"), with
TCH ceasing to have a separate existence. CIT was the surviving corporation in
the Reorganization and, upon consummation of the Reorganization, CIT changed its
name from CIT Group Inc. (Del) to CIT Group Inc. As a result of the
Reorganization, CIT is the successor to CIT Nevada's business, operations and
obligations. The address of the executive offices of CIT is 1 CIT Drive,
Livingston, NJ 07039.
CIT owns all of the capital stock of Newcourt Capital USA Inc.
("Newcourt"), a Delaware corporation, and Newcourt owns all of the membership
interests in CIT Capital Securities LLC, formerly known as Newcourt Capital
Securities, Inc. and CIT Capital Securities, Inc. ("CIT Capital"), a Delaware
corporation and a registered broker-dealer. CIT Capital was converted from a
Delaware corporation to a limited liability company on March 31, 2004. The
address of the executive offices of Newcourt is 1 CIT Drive, Livingston, NJ
07039. The address of the executive offices of CIT Capital is 1211 Avenue of the
Americas, 22nd Floor, New York, NY 10036. The principal business of CIT,
Newcourt and CIT Capital is commercial finance.
CIT, Newcourt and CIT Capital are referred to collectively as the
"Reporting Persons." In addition, the Reporting Persons may be deemed to be
members of a group, within the meaning of Section 13(d)(3) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), with Morgan Stanley Dean
Witter Equity Funding, Inc., Cinergy Ventures II, LLC, Originators Investment
Plan, L.P., Leaf Mountain Company, LLC, SF Capital Partners, Ltd., John Thomas
Hurvis Revocable Trust, David Asplund, John Donohoe, Technology Transformation
Venture Fund, LP, Augustine Fund, LP, and Richard Kiphart (collectively, the
"Other Investors") by virtue of the Amended and Restated Investor Rights
Agreement, dated as of March 19, 2004 (the "Investor Rights Agreement"), the
Amended and Restated Stockholders Agreement, dated as of March 19, 2004 (the
"Stockholders Agreement"), the Stock Trading Agreement, dated as of July 31,
2001 (the "Original Stock Trading Agreement") and the Amended and Restated Stock
Trading Agreement, dated as of March 19, 2004 (the "Amended and Restated Stock
Trading Agreement") each of which are described below. The Reporting Persons
disclaim beneficial ownership of the Company securities owned by the Other
Investors and have determined to file this Amendment separately from the Other
Investors.
-5-
The name, business address and present principal occupation or employment
of each of the executive officers and directors of CIT, Newcourt and CIT Capital
are set forth on Schedules I, II and III annexed hereto (the "Schedules"),
respectively, which are incorporated herein by reference.
(d) - (e) During the last five years, none of the Reporting Persons, and,
to the best knowledge of the Reporting Persons, none of the persons listed on
the Schedules hereto, has been convicted in a criminal proceeding (excluding
traffic violations and similar misdemeanors) or has been a party to a civil
proceeding of a judicial or administrative body of competent jurisdiction and as
a result of such proceeding was or is subject to a judgment, decree or final
order enjoining future violations of, or prohibiting or mandating activities
subject to, federal or state securities laws or finding any violation with
respect to such laws.
(f) Except as indicated on the Schedules, each natural person identified
is a citizen of the United States.
Item 3. Source and Amount of Funds or Other Consideration
On April 18, 2001, Newcourt obtained a warrant to purchase 1,700,000
shares of the Company's Common Stock (the "Warrant") at an exercise price of
$2.50 per share as partial consideration in connection with Newcourt's agreement
to loan the Company up to $2,000,000 pursuant to the Convertible Senior
Subordinated Promissory Note and Warrant Purchase Agreement, dated as of April
18, 2001, by and between Newcourt and the Company (the "Purchase Agreement").
Upon issuance, the Warrant became immediately exercisable and would expire on
April 18, 2004. Pursuant to the First Amendment to Convertible Senior
Subordinated Promissory Note and Warrant Purchase Agreement, dated as of July
31, 2001 (the "First Amendment"), Newcourt surrendered the Warrant. Also on July
31, 2001, the Company issued a note to Newcourt in the principal amount of
$1,200,000 (the "Bridge Note") pursuant to the First Amendment, which, among
other changes, increased the aggregate principal amount available for borrowings
under the Purchase Agreement from $2,000,000 to $3,200,000. The source of funds
for the loans was Newcourt's working capital.
Newcourt and the other entities party thereto entered into the Securities
Purchase Agreement, dated as of July 31, 2001, with the Company (the "Securities
Purchase Agreement") to acquire certain classes of the Company's securities. The
transactions contemplated by the Securities Purchase Agreement were consummated
on September 7, 2001. Under the terms of the Securities Purchase Agreement,
Newcourt purchased $4,000,000 of the Company's securities as described more
fully below.
The funds for the purchase of the securities pursuant to the Securities
Purchase Agreement came from the cancellation of $3,200,000 of the Company's
debt to Newcourt and the remainder came from the conversion of fees owed by the
Company to CIT Capital, as partial consideration for CIT Capital's services as
placement agent in connection with the Securities Purchase Agreement.
On July 31, 2001, CIT Capital received warrants to purchase 3,314,830
shares of the Company's Common Stock (the "Placement Agent Warrants") at an
exercise price of $1.00 per share as partial consideration for CIT Capital's
services as placement agent in connection with the Securities Purchase Agreement
and the Bridge Note. The Placement Agent Warrants are exercisable through
September 7, 2008. It is anticipated that the funds for the exercise of the
Placement Agent Warrants will be provided by CIT Capital's working capital and
that the source of funds for the exercise of the warrants issued under the
Securities Purchase Agreement will be Newcourt's working capital.
As described more fully below, pursuant to a Redemption and Exchange
Agreement, dated as of March 19, 2004 (the "Exchange Agreement"), by and among
the Company, Newcourt and the Other Investors, Newcourt exchanged with the
Company 322,816 shares of the Company's Series A Convertible Preferred Stock for
32,282 shares of the Company's Series E Convertible Preferred Stock.
-6-
Item 4. Purpose of Transaction
On September 7, 2001, Newcourt acquired for investment purposes $4,000,000
of the Company's Series A Convertible Preferred Stock, warrants to purchase
shares of Series A Convertible Preferred Stock, shares of Common Stock and
warrants to purchase shares of Common Stock pursuant to the Securities Purchase
Agreement.
CIT Capital received the Placement Agent Warrants as partial consideration
for its services as placement agent in connection with the Securities Purchase
Agreement and the Bridge Note. CIT Capital also received cash compensation for
its services, which was used as a credit against Newcourt's $4,000,000 purchase
price under the Securities Purchase Agreement.
Under the terms of the Exchange Agreement, the Company simultaneously
repurchased shares of its outstanding preferred stock for cash and exchanged all
of the Company's remaining preferred stock for shares of Series E Convertible
Preferred Stock. Pursuant to the Exchange Agreement, the Company repurchased
180,976 shares of Series A Convertible Preferred Stock from Newcourt for an
aggregate price of $2,352,688 and exchanged its remaining 322,816 shares of
Series A Convertible Preferred Stock for 32,282 shares of Series E Convertible
Preferred Stock, which it acquired for investment purposes.
Holders of the Series E Convertible Preferred Stock have the right to
elect up to four directors of the Company. Under the Stockholders Agreement,
Newcourt has the right to elect one director of the Company.
The Reporting Persons expect to evaluate on a continuing basis their goals
and objectives and general economic and equity market conditions, as well as the
Company's business operations and prospects. Based on such evaluations, from
time to time in the future, Newcourt may (1) convert the Series E Convertible
Preferred Stock into Common Stock, or (2) exercise the warrants to purchase
Common Stock for investment purposes. CIT Capital may exercise the Placement
Agent Warrants and the Reporting Persons may otherwise make additional purchases
of the Company's Common Stock. The Reporting Persons may, subject to the
Investor Rights Agreement, the Stock Trading Agreement and the Amended and
Restated Stock Trading Agreement, from time to time sell all or a portion of the
Common Stock that they now hold either in private placements, in the open market
pursuant to Rule 144, to the extent such rule is available for such sales, or
otherwise in conformance with the federal securities laws.
Except as set forth above, none of the Reporting Persons, nor, to the best
knowledge of each Reporting Person, any of the persons named in the Schedules to
this Amendment No. 2, has any plans or proposals that relate to or would result
in any of the matters referred to in paragraphs (a) through (j) of Item 4 of
Schedule 13D. The Reporting Persons, however, may at any time and from time to
time, review or reconsider their position with respect to any of such matters.
Item 5. Interest in Securities of the Issuer
(a) As of March 22, 2004, CIT and Newcourt beneficially owned (or are deemed
solely for purposes of Section 13(d)(3) of the Exchange Act to
beneficially own), directly or indirectly, an aggregate of 7,373,247
shares of Common Stock, consisting of 80,217 shares of Common Stock,
32,282 shares of Series E Convertible Preferred Stock and warrants to
purchase 4,064,830 shares of Common Stock and representing approximately
15.3% of the number of shares of Common Stock outstanding on March 22,
2004. As of March 22, 2004, CIT Capital beneficially owned (or is deemed
solely for purposes of Section 13(d)(3) of the Exchange Act to
beneficially own), directly or indirectly, an aggregate of 3,314,830
shares of Common Stock, consisting of warrants to purchase 3,314,830
shares of Common Stock and representing approximately 7.5% of the number
of shares of Common Stock outstanding on March 22, 2004. As a result of
the initial public offering of CIT, Tyco no longer has or will be deemed
to have beneficial ownership of any of the Company's Common Stock and is
no longer subject to filing requirements under Rule 13d-1 with respect to
the Company. As a result of the Reorganization, TCH was merged with and
into CIT and TCH ceased to have a separate existence.
-7-
(b) Assuming full exercise and conversion, as applicable, of the securities
owned by Newcourt and CIT Capital, CIT shares voting and dispositive power
with Newcourt as to 4,058,417 shares of Common Stock owned by Newcourt and
with Newcourt and CIT Capital as to 3,314,830 shares of Common Stock owned
by CIT Capital. CIT Capital has no voting or dispositive power as to
Common Stock owned by Newcourt.
The Reporting Persons disclaim beneficial ownership of the shares of
Common Stock beneficially owned by the Other Investors. The filing of this
Amendment No. 2 shall not be construed as an admission that the Reporting
Persons are the beneficial owners of the Common Stock beneficially owned
by the Other Investors or that the Reporting Persons and any of such Other
Investors constitute such a person or group. The Reporting Persons are not
responsible for the accuracy of any information filed by any of the Other
Investors.
(c) Except as set forth in this Amendment No. 2, there are no other
transactions that were effected during the last 60 days by the Reporting
Persons with respect to shares of Common Stock.
(d) Not applicable.
(e) Tyco ceased to be the beneficial owner of any of the Company's Common
Stock on July 8, 2002. TCH ceased to have a separate existence on July 2,
2002.
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to
Securities of the Issuer
The Company and CIT Capital previously entered into arrangements under
which CIT Capital served as the Company's placement agent with respect to the
Securities Purchase Agreement and a proposed private placement to an additional
investor for aggregate proceeds of $4,000,000 of the Company's Series A
Convertible Preferred Stock and warrants to purchase Series A Convertible
Preferred Stock (the "Additional Investment"). Pursuant to these arrangements,
CIT Capital received (1) the Placement Agent Warrants, and (2) a fee equal to 5%
of the aggregate gross proceeds received by the Company in connection with the
Securities Purchase Agreement.
On July 31, 2001, the Company issued warrants to CIT Capital to purchase
3,314,830 shares of Common Stock. The warrants are exercisable through September
7, 2008 at an exercise price of $1.00 per share.
On July 31, 2001, Newcourt and other investors entered into the Securities
Purchase Agreement with the Company. The transactions contemplated by the
Securities Purchase Agreement were consummated on September 7, 2001. Pursuant to
the terms of the Securities Purchase Agreement, Newcourt and the other parties
thereto collectively purchased $16,000,000 in aggregate amount of the Company's
Series A Convertible Preferred Stock, warrants to purchase Series A Convertible
Preferred Stock, shares of the Common Stock and warrants to purchase Common
Stock. Newcourt purchased for $4,000,000 the following securities:
o 400,000 shares of Series A Convertible Preferred Stock;
o warrants to purchase 100,000 shares of Series A Convertible
Preferred Stock at an initial exercise price of $10.00 per share;
o 80,217 shares of Common Stock; and
o warrants to purchase 750,000 shares of Common Stock at an initial
exercise price of $1.00 per share.
As of March 19, 2004, Newcourt and the Other Investors entered into the
Exchange Agreement pursuant to which each of them sold shares of the convertible
preferred securities it held to the Company for cash and/or exchanged the
convertible preferred securities that it held for shares of Series E Convertible
Preferred Stock. The Series E Convertible Preferred Stock is convertible
immediately into shares of Common Stock at the option of the
-8-
holder as determined by dividing $100.00 by the conversion price, which has been
initially set at $1.00, multiplied by each share of Series E Convertible
Preferred Stock, subject to adjustments.
As of March 19, 2004, Newcourt owned 503,792 shares of Series A
Convertible Preferred Stock, 103,792 of which were aggregate quarterly dividends
paid in kind since July 31, 2001. Newcourt's 100,000 warrants to purchase shares
of Series A Convertible Preferred Stock expired unexercised. Under the Exchange
Agreement, the Company simultaneously repurchased 180,976 shares of Newcourt's
Series A Convertible Preferred Stock at an aggregate price of $2,352,688 and
exchanged the remainder of Newcourt's Series A Convertible Preferred Stock for
32,282 shares of Series E Convertible Preferred Stock. Based on the initial
conversion ratio, Newcourt has the right to acquire 3,228,200 shares of Common
Stock upon the conversion of all of its Series E Convertible Preferred Stock.
Each outstanding share of Series E Convertible Preferred Stock will be entitled
to dividends at a rate of 6% per year of its stated value, which is $100.00. The
Company may pay dividends in cash or additional shares of Series E Convertible
Preferred Stock, at its option.
Pursuant to the terms of the Series E Convertible Preferred Stock,
Newcourt and the Other Investors have the right to elect up to four directors of
the twelve-member board of directors, subject to decrease depending on the
number of shares of Series E Convertible Preferred Stock outstanding. Depending
on the number of shares of Series E Convertible Preferred Stock outstanding, the
holders will also have special approval rights to approve certain matters in
which the Company proposes to engage.
In connection with the Exchange Agreement, the Company entered into the
following ancillary agreements: (1) the Investor Rights Agreement, (2) the
Stockholders Agreement and (3) the Amended and Restated Stock Trading Agreement.
Under the terms of the Investor Rights Agreement, the Other Investors, Newcourt
and CIT Capital have the right to require the Company to register the shares of
Common Stock received directly or indirectly pursuant to the Exchange Agreement,
certain other shares of Common Stock owned by them and the Common Stock
underlying any warrants owned by them. The parties to the Investor Rights
Agreement have the right to demand an aggregate of four registrations
representing at least $5 million of market value and are also entitled to
customary "piggyback" registration rights. Under the Investors Rights Agreement,
the parties thereto have a right of first offer with respect to future sales by
the Company of its capital stock to permit such parties to maintain their
percentage ownership interests.
Under the Stockholders Agreement, the investors in Series E Convertible
Preferred Stock (other than SF Capital Partners, Ltd., which is not a party to
the Stockholders Agreement) agreed as to certain voting matters. For purposes of
this agreement, Morgan Stanley Dean Witter Equity Funding, Inc. and Originators
Investment Plan, L.P. are counted as one investor. Under the Stockholders
Agreement, the parties thereto and the Company agreed that:
o for so long as 90,000 shares of Series E Convertible Preferred Stock
are issued and outstanding, each of the four investors who hold the
greatest number of shares have the right to elect a director,
provided that such investors hold at least 12.5% of the outstanding
shares of Series E Convertible Preferred Stock;
o for so long as at least 65,000 and less than 90,000 shares of Series
E Convertible Preferred Stock are issued and outstanding, each of
the three investors who hold the greatest number of shares have the
right to elect a director, provided that such investors hold at
least 9.375% of the outstanding shares of Series E Convertible
Preferred Stock;
o for so long as at least 45,000 and less than 65,000 shares of Series
E Convertible Preferred Stock are issued and outstanding, a
majority-in-interest of the outstanding Series E Convertible
Preferred Stock shall have the right to elect two board members; and
o for so long as at least 20,000 and less than 45,000 shares of Series
E Convertible Preferred Stock are issued and outstanding, a
majority-in-interest of the outstanding Series E Convertible
Preferred Stock shall have the right to elect one board member.
-9-
Each investor also agreed that if it converts more than 50% of the Series E
Convertible Preferred Stock it received under the Exchange Agreement, it will,
at the request of the Company, convert the remainder of its Series E Convertible
Preferred Stock.
On July 31, 2001, Newcourt, CIT Capital, certain other investors and
certain officers of the Company entered into the Original Stock Trading
Agreement, which limits their ability to sell Common Stock into the public
market. The Original Stock Trading Agreement became effective on September 7,
2001. Under the Original Stock Trading Agreement, the parties currently may sell
their shares subject only to certain trading volume, price and block sale
limitations set forth in the Original Stock Trading Agreement. Each party to the
Original Stock Trading Agreement and the Company has a right of first offer if
any other party to the Original Stock Trading Agreement intends to sell its
shares in a private transaction. The Original Stock Trading Agreement expires
September 7, 2004.
On March 19, 2004, Newcourt, CIT Capital and the Other Investors and
certain officers of the Company entered into an Amended and Restated Stock
Trading Agreement, to be effective on September 8, 2004. Under the Amended and
Restated Stock Trading Agreement, subject to certain exceptions, the parties may
sell their shares of Common Stock subject to certain trading volume, price and
block sale limitations set forth in the Amended and Restated Stock Trading
Agreement. The Amended and Restated Stock Trading Agreement expires September 8,
2007.
Except as set forth above, to the knowledge of the Reporting Persons,
there are no contracts, arrangements, understandings or relationships (legal or
otherwise) between the Reporting Persons and any other person with respect to
any securities of the Company, including, but not limited to, transfer or voting
of any of the securities, finder's fees, joint ventures, loan or option
arrangements, puts or calls, guarantees of profits, division of profits or loss,
or the giving or withholding of proxies.
Item 7. Material to be Filed as Exhibits
EXHIBIT
NO. DESCRIPTION
1. Joint Filing Agreement.
2. Securities Purchase Agreement, dated as of July 31, 2001, by and
among Electric City Corp., Newcourt Capital USA Inc., Duke Capital
Partners, LLC, Morgan Stanley Dean Witter Equity Funding, Inc.,
Originators Investment Plan, L.P. and EP Power Finance, L.L.C.*
3. Form of Warrant Certificate to Purchase Shares of Common Stock, Par
Value $0.0001 Per Share, of Electric City Corp. (incorporated by
reference to Exhibit E to Exhibit 2 hereto).
4. Amended and Restated Investor Rights Agreement, dated as of March
19, 2004, by and among Electric City Corp., Newcourt Capital USA
Inc., CIT Capital Securities, Inc., Morgan Stanley Dean Witter
Equity Funding, Inc., Originators Investment Plan, L.P., Cinergy
Ventures II, LLC, Leaf Mountain Company, LLC, SF Capital Partners,
Ltd., Richard Kiphart, David Asplund, John Thomas Hurvis Revocable
Trust, John Donohue, Augustine Fund, LP and Technology
Transformation Venture Fund LP.**
5. Amended and Restated Stockholders Agreement, dated as of March 19,
2004, by and among Electric City Corp., Newcourt Capital USA Inc.,
Morgan Stanley Dean Witter Equity Funding, Inc., Originators
Investment Plan, L.P., Cinergy Ventures II, LLC, Leaf Mountain
Company, LLC, Richard Kiphart, David Asplund, John Thomas Hurvis
Revocable Trust, John Donohue, Augustine Fund, LP and Technology
Transformation Venture Fund LP.**
-10-
6. Stock Trading Agreement, dated as of July 31, 2001, by and among
Electric City Corp., Newcourt Capital Securities, Inc., Newcourt
Capital USA Inc., EP Power Finance, L.L.C., Morgan Stanley Dean
Witter Equity Funding, Inc., Originators Investment Plan, L.P., Duke
Capital Partners, LLC and each of the members of management of
Electric City Corp. party thereto.*
7. Amended and Restated Stock Trading Agreement, dated as of March 19,
2004, by and among Electric City Corp., Newcourt Capital USA Inc.,
CIT Capital Securities, Inc., Morgan Stanley Dean Witter Equity
Funding, Inc., Originators Investment Plan, L.P., Cinergy Ventures
II, LLC, Leaf Mountain Company, LLC, SF Capital Partners, Ltd.,
Richard Kiphart, David Asplund, John Thomas Hurvis Revocable Trust,
John Donohue, Augustine Fund, LP, Technology Transformation Venture
Fund LP., and members of management of Electric City Corp. party
thereto.**
8. Redemption and Exchange Agreement, dated as of March 19, 2004, by
and among Electric City Corp., Newcourt Capital USA Inc., Morgan
Stanley Dean Witter Equity Funding, Inc., Originators Investment
Plan, L.P., Cinergy Ventures II, LLC, Leaf Mountain Company, LLC, SF
Capital Partners, Ltd., Richard Kiphart, David Asplund, John Thomas
Hurvis Revocable Trust, John Donohue, Augustine Fund, LP, and
Technology Transformation Venture Fund LP.**
9. Placement Agent Warrant Certificate to Purchase 3,314,830 Shares of
Common Stock, Par Value $0.0001 Per Share, of Electric City Corp.,
dated as of July 31, 2001, by and between Electric City Corp. and
Newcourt Capital Securities, Inc.* -------------
----------
* Filed as an Exhibit by the Company in its Quarterly Report on Form 10-QSB for
the Period Ended June 30, 2001 filed on August 13, 2001.
** Filed as an Exhibit by the Company in its Current Report on Form 8-K dated
March 19, 2004, filed on March 23, 2004.
-11-
SIGNATURES
After reasonable inquiry and to the best of their knowledge and belief,
the undersigned certify that the information set forth in this statement is
true, complete and correct.
CIT GROUP INC.
Date: June __, 2004 By:_________________________
Name: James P. Shanahan
Title: Senior Vice President
NEWCOURT CAPITAL USA INC.
By:_________________________
Date: June __, 2004 Name: Karen Scowcroft
Title: Vice President
CIT CAPITAL SECURITIES LLC
Date: June __, 2004 By:_________________________
Name: Karen Scowcroft
-12-
SCHEDULE I
EXECUTIVE OFFICERS AND DIRECTORS OF
CIT GROUP INC.
Present Principal Occupation
Name and Position Held Current Business Address or Employment
Albert R. Gamper, Jr. 1 CIT Drive Chairman and Chief Executive Officer, CIT Group
Director, Chairman and Livingston, NJ 07039 Inc.
Chief Executive Officer
Gary C. Butler c/o CIT Group Inc. President and Chief Operating Officer, Automatic
Director 1 CIT Drive Data Processing, Inc.
Livingston, NJ 07039
William A. Farlinger c/o CIT Group Inc. Retired, Former Chairman, Ontario Power
Director 1 CIT Drive Generation Inc.
Livingston, NJ 07039
William A. Freeman c/o CIT Group Inc. Retired, Former President of the Public
Director 1 CIT Drive Communications Group of Verizon Communications,
Livingston, NJ 07039 Inc.
Hon. Thomas H. Kean c/o CIT Group Inc. President, Drew University
Director 1 CIT Drive
Livingston, NJ 07039
Edward J. Kelly, III c/o CIT Group Inc. Chairman, President and Chief Executive Officer,
Director 1 CIT Drive Mercantile Bankshares Corporation
Livingston, NJ 07039
Marianne Miller Parrs c/o CIT Group Inc. Executive Vice President, International Paper
Director 1 CIT Drive Company
Livingston, NJ 07039
Jeffrey M. Peek 1 CIT Drive President and Chief Operating Officer, CIT Group
Director, President and Livingston, NJ 07039 Inc.
Chief Operating Officer
John R. Ryan c/o CIT Group Inc. President, Maritime College, State University of
Director 1 CIT Drive New York
Livingston, NJ 07039
Peter J. Tobin c/o CIT Group Inc. Special Assistant in Corporate Relations and
Director 1 CIT Drive Development to the President of St. John's
Livingston, NJ 07039 University
Lois M. Van Deusen c/o CIT Group Inc. Managing Partner, McCarter & English, LLP
Director 1 CIT Drive
Livingston, NJ 07039
I-1
Present Principal Occupation
Name and Position Held Current Business Address or Employment
John F. Daly 1 CIT Drive President, Commercial Services, CIT Group Inc.
President, Commercial Services Livingston, NJ 07039
Thomas B. Hallman 1 CIT Drive Vice Chairman - Specialty Finance, CIT Group
Vice Chairman - Specialty Livingston, NJ 07039 Inc.
Finance
Robert J. Ingato 1 CIT Drive Executive Vice President, General Counsel and
Executive Vice President, Livingston, NJ 07039 Secretary, CIT Group Inc., Director and
General Counsel and Secretary Executive Vice President, Newcourt Capital USA
Inc.
Roy W. Keller, Jr. 1 CIT Drive President, Equipment Finance, CIT Group Inc.
President, Equipment Livingston, NJ 07039
Finance
Joseph M. Leone 1 CIT Drive Vice Chairman and Chief Financial Officer, CIT
Vice Chairman and Chief Livingston, NJ 07039 Group Inc.
Financial Officer
Lawrence A. Marsiello 1 CIT Drive Vice Chairman and Chief Credit Officer, CIT
Vice Chairman and Chief Credit Livingston, NJ 07039 Group Inc.
Officer
David D. McKerroll 1 CIT Drive Group Co-Chief Executive Officer, Capital
Group Co-Chief Executive Officer, Livingston, NJ 07039 Finance, CIT Group Inc., President, Newcourt
Capital Finance (citizen of Capital USA Inc. and CIT Capital Securities LLC
Canada)
Victor D. Russo 1 CIT Drive President, Business Credit, CIT Group Inc.
President, Business Credit Livingston, NJ 07039
William J. Taylor 1 CIT Drive Executive Vice President, Controller and Chief
Executive Vice President, Livingston, NJ 07039 Accounting Officer, CIT Group Inc., Executive
Controller and Chief Vice President and Controller, Newcourt Capital
Accounting Officer USA Inc.
Nikita Zdanow 1 CIT Drive Group Co-Chief Executive Officer, Capital Finance,
Group Co-Chief Executive Officer, Livingston, NJ 07039 CIT Group Inc.
Capital Finance
I-2
SCHEDULE II
EXECUTIVE OFFICERS AND DIRECTORS OF NEWCOURT CAPITAL USA INC.
Present Principal Occupation
Name and Position Held Current Business Address or Employment
Thomas L. Abbate 1 CIT Drive Executive Vice President and Chief
Director Livingston, NJ 07039 Risk Officer, CIT Group Inc.
Robert J. Ingato See Schedule I See Schedule I
Director, Executive Vice President
Glenn A. Votek 1 CIT Drive Executive Vice President and
Director, Executive Vice President - Livingston, NJ 07039 Treasurer, CIT Group Inc., Executive
Corporate Treasury and Treasurer Vice President - Corporate Treasury,
Newcourt Capital USA Inc. and CIT
Capital Securities LLC
David D. McKerroll See Schedule I See Schedule I
President
(citizen of Canada)
Murray A. Eastwood 1 CIT Drive Chief Credit Officer, Newcourt
Chief Credit Officer Livingston, NJ 07039 Capital USA Inc. and CIT Capital
(citizen of Canada) Securities LLC
J. Daryl MacLellan 1 CIT Drive Chief Operating Officer, Newcourt
Chief Operating Officer Livingston, NJ 07039 Capital USA Inc. and CIT Capital
(citizen of Canada) Securities LLC
Kenneth I. Brown 1 CIT Drive Executive Vice President, Newcourt
Executive Vice President Livingston, NJ 07039 Capital USA Inc.
C. Jeffrey Knittel 1 CIT Drive Executive Vice President, Newcourt
Executive Vice President Livingston, NJ 07039 Capital USA Inc.
Stephen L. McClure 1 CIT Drive Executive Vice President, Newcourt
Executive Vice President Livingston, NJ 07039 Capital USA Inc.
Daniel M. Morash 1 CIT Drive Executive Vice President and
Managing Director Livingston, NJ 07039 Managing Director, Newcourt Capital
USA Inc., Director and Managing
Director, CIT Capital Securities
LLC
William J. Taylor See Schedule I See Schedule I
Executive Vice President and
Controller
II-1
SCHEDULE III
EXECUTIVE OFFICERS AND DIRECTORS OF CIT CAPITAL SECURITIES LLC
Present Principal Occupation
Name and Position Held Current Business Address or Employment
David D. McKerroll See Schedule I See Schedule I
Director and President
(citizen of Canada)
Murray A. Eastwood See Schedule II See Schedule II
Chief Credit Officer
(citizen of Canada)
J. Daryl MacLellan See Schedule II See Schedule II
Chief Operating Officer
(citizen of Canada)
Annie Ropar 1211 Avenue of the Americas Chief Financial Officer, CIT Capital
Chief Financial Officer New York, NY 10036 Securities LLC
(citizen of Canada)
Glenn A. Votek See Schedule II See Schedule II
Executive Vice President
-Corporate Treasury
Michael E. Stupay 1211 Avenue of the Americas Financial and Operations Principal,
Financial and Operations New York, NY 10036 CIT Capital Securities LLC
Principal
Johannes G.M. Derksen 1211 Avenue of the Americas Managing Director, CIT Capital
Managing Director New York, NY 10036 Securities LLC
(citizen of Holland)
Daniel M. Morash See Schedule II See Schedule II
Director and Managing
Director
Guy A. Piazza 1211 Avenue of the Americas Managing Director, CIT Capital
Managing Director New York, NY 10036 Securities LLC
Robert W. Sexton 1211 Avenue of the Americas Managing Director, CIT Capital
Director and Managing New York, NY 10036 Securities LLC
Director
III-1