UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 1 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)
Mark H. Swartz
Executive Vice President
Tyco International Ltd.
The Zurich Centre, Second Floor
90 Pitts Bay Road
Pembroke HM 08, Bermuda
(441) 292-8674
(Name, Address and Telephone Number of Person Authorized to Receive
Notices and Communications)
With copies to:
Meredith B. Cross Fati Sadeghi
Wilmer, Cutler & Pickering Senior Corporate Counsel
2445 M Street, N.W. Tyco International (US) Inc.
Washington, D.C. 20037 One Tyco Park
(202) 663-6000 Exeter, NH 03833
(603) 778-9700
---------------------------
September 7, 2001
(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.1 TO SCHEDULE 13D
===============================================================================
CUSIP NO. 284868 10 6 Page 2 of 13 Pages
------------
------------------------------------------------------------------------------
NAME OF REPORTING PERSON
Tyco International Ltd.
1
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON.
Not applicable
------------------------------------------------------------------------------
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
2 (a) [_]
(b) [X]
------------------------------------------------------------------------------
SEC USE ONLY
3
------------------------------------------------------------------------------
SOURCE OF FUNDS
4
AF
------------------------------------------------------------------------------
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e) [_]
5
------------------------------------------------------------------------------
CITIZENSHIP OR PLACE OF ORGANIZATION
6
Bermuda
------------------------------------------------------------------------------
SOLE VOTING POWER
7
NUMBER OF 0
SHARES -----------------------------------------------------------
SHARED VOTING POWER
BENEFICIALLY 8
OWNED BY 9,145,047**
-----------------------------------------------------------
EACH SOLE DISPOSITIVE POWER
9
REPORTING 0
PERSON -----------------------------------------------------------
SHARED DISPOSITIVE POWER
WITH 10
9,145,047**
------------------------------------------------------------------------------
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
11
9,145,047**
------------------------------------------------------------------------------
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES SHARES* [_]
12
------------------------------------------------------------------------------
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
13
22.8%**
------------------------------------------------------------------------------
TYPE OF REPORTING PERSON*
14
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. 1 TO SCHEDULE 13D
AMENDMENT NO. 1 TO SCHEDULE 13D
===============================================================================
CUSIP NO. 284868 10 6 Page 3 of 13 Pages
------------
------------------------------------------------------------------------------
NAME OF REPORTING PERSON
CIT Holdings (NV) Inc.
1
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
65-1051192
------------------------------------------------------------------------------
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
2 (a) [_]
(b) [X]
------------------------------------------------------------------------------
SEC USE ONLY
3
------------------------------------------------------------------------------
SOURCE OF FUNDS*
4
AF
------------------------------------------------------------------------------
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e) [_]
5
------------------------------------------------------------------------------
CITIZENSHIP OR PLACE OF ORGANIZATION
6
Nevada
------------------------------------------------------------------------------
SOLE VOTING POWER
7
NUMBER OF 0
SHARES -----------------------------------------------------------
SHARED VOTING POWER
BENEFICIALLY 8
OWNED BY 9,145,047**
-----------------------------------------------------------
EACH SOLE DISPOSITIVE POWER
9
REPORTING 0
PERSON -----------------------------------------------------------
SHARED DISPOSITIVE POWER
WITH 10
9,145,047**
------------------------------------------------------------------------------
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
11
9,145,047**
------------------------------------------------------------------------------
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES SHARES* [_]
12
------------------------------------------------------------------------------
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
13
22.8%**
------------------------------------------------------------------------------
TYPE OF REPORTING PERSON*
14
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. 1 TO SCHEDULE 13D
AMENDMENT NO.1 TO SCHEDULE 13D
===============================================================================
CUSIP NO. 284868 10 6 Page 4 of 13 Pages
------------
------------------------------------------------------------------------------
NAME OF REPORTING PERSON
The CIT Group Inc.
1
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
65-1051227
------------------------------------------------------------------------------
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
2 (a) [_]
(b) [X]
------------------------------------------------------------------------------
SEC USE ONLY
3
------------------------------------------------------------------------------
SOURCE OF FUNDS*
4
AF
------------------------------------------------------------------------------
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e) [_]
5
------------------------------------------------------------------------------
CITIZENSHIP OR PLACE OF ORGANIZATION
6
Nevada
------------------------------------------------------------------------------
SOLE VOTING POWER
7
NUMBER OF 0
SHARES -----------------------------------------------------------
SHARED VOTING POWER
BENEFICIALLY 8
OWNED BY 9,145,047**
-----------------------------------------------------------
EACH SOLE DISPOSITIVE POWER
9
REPORTING 0
PERSON -----------------------------------------------------------
SHARED DISPOSITIVE POWER
WITH 10 9,145,047**
------------------------------------------------------------------------------
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
11
9,145,047**
------------------------------------------------------------------------------
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES SHARES* [_]
12
------------------------------------------------------------------------------
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
13
22.8%**
------------------------------------------------------------------------------
TYPE OF REPORTING PERSON
14
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. 1 TO SCHEDULE 13D
AMENDMENT NO. 1 TO SCHEDULE 13D
===============================================================================
CUSIP NO. 284868 10 6 Page 5 of 13 Pages
------------
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NAME OF REPORTING PERSON
Newcourt Capital USA Inc.
1
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
36-3871861
------------------------------------------------------------------------------
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
2 (a) [_]
(b) [X]
------------------------------------------------------------------------------
SEC USE ONLY
3
------------------------------------------------------------------------------
SOURCE OF FUNDS*
4
WC
------------------------------------------------------------------------------
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e) [_]
5
------------------------------------------------------------------------------
CITIZENSHIP OR PLACE OF ORGANIZATION
6
Delaware
------------------------------------------------------------------------------
SOLE VOTING POWER
7
NUMBER OF 0
SHARES -----------------------------------------------------------
SHARED VOTING POWER
BENEFICIALLY 8
OWNED BY 9,145,047**
-----------------------------------------------------------
EACH SOLE DISPOSITIVE POWER
9
REPORTING 0
PERSON -----------------------------------------------------------
SHARED DISPOSITIVE POWER
WITH 10
9,145,047**
------------------------------------------------------------------------------
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
11
9,145,047
------------------------------------------------------------------------------
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES SHARES [_]
12
------------------------------------------------------------------------------
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
13
22.8%**
------------------------------------------------------------------------------
TYPE OF REPORTING PERSON
14
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. 1 TO SCHEDULE 13D
AMENDMENT NO. 1 TO SCHEDULE 13D
===============================================================================
CUSIP NO. 284868 10 6 Page 6 of 13 Pages
------------
------------------------------------------------------------------------------
NAME OF REPORTING PERSON
Newcourt Capital Securities, Inc.
1
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
13-3897534
------------------------------------------------------------------------------
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
2 (a) [_]
(b) [X]
------------------------------------------------------------------------------
SEC USE ONLY
3
------------------------------------------------------------------------------
SOURCE OF FUNDS
4
WC
------------------------------------------------------------------------------
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e) [_]
5
------------------------------------------------------------------------------
CITIZENSHIP OR PLACE OF ORGANIZATION
6
Delaware
------------------------------------------------------------------------------
SOLE VOTING POWER
7
NUMBER OF 0
SHARES -----------------------------------------------------------
SHARED VOTING POWER
BENEFICIALLY 8
OWNED BY 3,314,830**
-----------------------------------------------------------
EACH SOLE DISPOSITIVE POWER
9
REPORTING 0
PERSON -----------------------------------------------------------
SHARED DISPOSITIVE POWER
WITH 10
3,314,830**
------------------------------------------------------------------------------
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
11
9,145,047**
------------------------------------------------------------------------------
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES SHARES* [_]
12
------------------------------------------------------------------------------
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
13
22.8%**
------------------------------------------------------------------------------
TYPE OF REPORTING PERSON*
14
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. 1 TO SCHEDULE 13D
AMENDMENT NO. 1 TO SCHEDULE 13D
Each of the Items of this Schedule is hereby amended in its entirety.
Item 1. Security and Issuer
This schedule relates to the beneficial ownership of shares of common
stock, $0.0001 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. 1 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) Tyco International Ltd. ("Tyco"), a Bermuda company, is a
diversified manufacturing and service company that, through its subsidiaries:
. designs, manufactures and distributes electrical and electronic
components and multi-layer printed circuit boards;
. designs, manufactures and distributes disposable medical supplies and
other specialty products;
. designs, manufactures, installs and services fire detection and
suppression systems, installs, monitors and maintains electronic
security systems and designs, manufactures, distributes and services
specialty valves;
. designs, engineers, manufactures, installs, operates and maintains
undersea cable communications systems; and
. offers vendor, equipment, commercial, factoring, consumer and
structured financing and leasing capabilities through its indirect
wholly-owned subsidiary, The CIT Group, Inc. ("CIT"), acquired on June
1, 2001.
Tyco's registered offices are located at The Zurich Centre, Second Floor,
90 Pitts Bay Road, Pembroke HM 08, Bermuda. The executive offices of Tyco's
principal United States subsidiaries are located at One Tyco Park, Exeter, New
Hampshire 03833.
CIT Holdings (NV) Inc. ("CIT Holdings"), a Nevada corporation, is a direct
wholly-owned subsidiary of Tyco that owns all of the capital stock of CIT, a
Nevada corporation. CIT owns all of the capital stock of Newcourt Capital USA
Inc. ("Newcourt"), a Delaware corporation, and Newcourt owns all of the capital
stock of Newcourt Capital Securities, Inc. ("Newcourt Securities"), a Delaware
corporation and a registered broker-dealer. The address of the executive offices
of CIT Holdings is One Tyco Park, Exeter, New Hampshire 03833. The address of
the executive offices of CIT, Newcourt and Newcourt Securities is 1211 Avenue of
the Americas, New York, NY 10036. The principal business of CIT Holdings, CIT,
Newcourt and Newcourt Securities is commercial finance.
Tyco, CIT Holdings, CIT, Newcourt and Newcourt Securities 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 EP
Power Finance, L.L.C., Morgan Stanley Dean Witter Equity Funding, Inc.,
Originators Investment Plan, L.P. and Duke Capital Partners, LLC (collectively,
the "Other Investors") by virtue of the Investors Rights Agreement, Stockholders
Agreement and Stock Trading Agreement 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.
The name, business address and present principal occupation or employment
of each of the executive officers and directors of Tyco, CIT Holdings, CIT,
Newcourt and Newcourt Securities are set forth on Schedules I, II, III, IV and V
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 Investors 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 Newcourt Securities, as partial consideration for Newcourt
Securities' services as placement agent in connection with the Securities
Purchase Agreement.
On July 31, 2001, Newcourt Securities 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 Newcourt
Securities' services as placement agent in connection with the Securities
Purchase Agreement and the Bridge Note. The Placement Agent Warrants are
exercisable from November 6, 2001 through September 7, 2008.
It is anticipated that the funds for the exercise of the Placement Agent
Warrants will be provided by Newcourt Securities' 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.
Item 4. Purpose of Transaction
Newcourt acquired for investment purposes $4,000,000 of the Company's
Convertible Preferred Stock, warrants to purchase shares of Convertible
Preferred Stock, shares of Common Stock and warrants to purchase shares of
Common Stock pursuant to the Securities Purchase Agreement.
Newcourt Securities 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. Newcourt Securities 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.
The Company's board of directors is currently comprised of eight members.
Under the terms of the Securities Purchase Agreement, holders of the Convertible
Preferred Stock have the right to elect up to four additional directors, at
which time the Company's board of directors will consist of 12 directors.
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 Convertible Preferred
Stock into Common Stock, (2) exercise the warrants to purchase the Convertible
Preferred Stock, and subsequently convert such stock into Common Stock, or (3)
exercise the warrants to purchase Common Stock for investment purposes. Newcourt
Securities 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 and the Stock
Trading Agreement (defined below), 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 document, 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 September 7, 2001, the Reporting Persons 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
9,145,047 shares of Common Stock, representing approximately 22.8% of
the number of shares of Common Stock outstanding on August 13, 2001,
plus the number of shares of Common Stock that the Reporting Persons
have the right to acquire within 60 days and the 240,651 shares of
Common Stock that the Other Investors acquired on September 7, 2001.
(b) Assuming full exercise and conversion, as applicable, of the
securities issued to Newcourt under the Securities Purchase Agreement
and full exercise of the Placement Agent Warrants by Newcourt
Securities, Tyco, CIT Holdings and CIT share voting and dispositive
power with Newcourt as to 5,830,217 shares of Common Stock owned by
Newcourt and with Newcourt and Newcourt Securities as to 3,314,830
shares of Common Stock owned by Newcourt Securities. Newcourt
Securities has no voting or dispositive power as to Common Stock owned
by Newcourt.
The Reporting Persons disclaim beneficial ownership of the 17,490,651
shares of Common Stock beneficially owned by the Other Investors. The
filing of this Amendment 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 above, 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) Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to
Securities of the Issuer
The Company and Newcourt Securities previously entered into arrangements
under which Newcourt Securities 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
Convertible Preferred Stock and warrants to purchase Convertible Preferred Stock
(the "Additional Investment"). Pursuant to these arrangements, Newcourt
Securities (1) received the Placement Agent Warrants; (2) received a fee equal
to 5% of the aggregate gross proceeds received by the Company in connection with
the Securities Purchase Agreement; (3) will receive a fee equal to 5% of the
aggregate proceeds from the Additional Investment, if consummated; and (4) will
receive a fee equal to 5% of the aggregate gross proceeds from the exercise of
any warrants to purchase the Convertible Preferred Stock.
On July 31, 2001, the Company issued warrants to Newcourt Securities to
purchase 3,314,830 shares of Common Stock. The warrants are exercisable from
November 6, 2001 through September 7, 2008 at an exercise price of $1.00 per
share.
On July 31, 2001, Newcourt and the 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 Investors collectively purchased $16,000,000 in aggregate amount of the
Company's Convertible Preferred Stock, warrants to purchase Convertible
Preferred Stock, shares of the Common Stock and warrants to purchase Common
Stock. Newcourt purchased for $4,000,000 the following securities:
. 400,000 shares of Convertible Preferred Stock;
. warrants to purchase 100,000 shares of Convertible Preferred Stock at
an initial exercise price of $10.00 per share;
. 80,217 shares of Common Stock; and
. warrants to purchase 750,000 shares of Common Stock at an initial
exercise price of $1.00 per share.
The Convertible Preferred Stock is convertible beginning on November 6,
2001 into shares of Common Stock at the option of the holder as determined by
dividing $10.00 by the conversion price, which has been initially set at $1.00,
multiplied by each share of Convertible Preferred Stock, subject to adjustments
as set forth in the Securities Purchase Agreement. Based on the initial
conversion ratio, Newcourt has the right to acquire 5,000,000 shares of Common
Stock as a result of the conversion of the Convertible Preferred Stock and the
exercise of the warrants to purchase Convertible Preferred Stock that it will
receive upon the closing of the transaction. Each outstanding share of
Convertible Preferred Stock will be entitled to dividends at a rate of 10% per
year of its stated value, which is $10.00. The Company may pay dividends in cash
or additional shares of Convertible Preferred Stock until the first dividend
payment that occurs after three years following the initial issuance of the
Convertible Preferred Stock. After that date, dividends must be paid in cash and
the dividend rate increases 0.5% every six months to a maximum rate of 15% per
year.
Pursuant to the terms of the 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 Convertible Preferred Stock outstanding. Depending on the number of
shares of 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 Securities Purchase Agreement, the Company entered
into certain ancillary agreements -- the Investor Rights Agreement, the
Stockholders Agreement and the Stock Trading Agreement. Under the terms of the
Investor Rights Agreement, dated as of July 31, 2001 (the "Investor Rights
Agreement"), which became effective on September 7, 2001, the Other Investors,
Newcourt and Newcourt Securities have the right to require the Company to
register the shares of Common Stock received directly or indirectly pursuant to
the Securities Purchase Agreement or the Common Stock to be received by Newcourt
Securities upon exercise of the Placement Agent Warrants. The Other Investors,
Newcourt and Newcourt Securities, as a group, have the right to demand an
aggregate of four registrations representing at least $5 million of market
value. The Other Investors, Newcourt and Newcourt Securities are also entitled
to customary "piggyback" registration rights. Under the Investors Rights
Agreement, the Other Investors, Newcourt and Newcourt Securities 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.
On July 31, 2001, the Other Investors, Newcourt and the Company entered
into the Stockholders Agreement (the "Stockholders Agreement"), which became
effective on September 7, 2001. Under the Stockholders Agreement, each investor
has the right to designate one member of the board of directors and to have a
representative attend all meetings of the board of directors as a board observer
so long as it holds at least 200,000 shares of Convertible Preferred Stock. For
purposes of this agreement, Morgan Stanley Dean Witter Equity Funding, Inc. and
Originators Investment Plan, L.P. are counted as one investor. Additionally, the
Other Investors, Newcourt and the Company have agreed that for so long as an
investor owns at least 2,000,000 shares of Common Stock, subject to adjustments,
a representative of such investor is entitled to attend all meetings of the
board of directors as an observer if such investor does not have a designated
board member. Each investor also agrees that if it converts more than 50% of the
Convertible Preferred Stock it purchased under the Securities Purchase
Agreement, it will, at the request of the Company, convert the remainder of its
Convertible Preferred Stock.
On July 31, 2001, the Other Investors, Newcourt, Newcourt Securities and
certain officers of the Company entered into the Stock Trading Agreement (the
"Stock Trading Agreement"), which limits their ability to sell Common Stock into
the public market. The Stock Trading Agreement became effective on September 7,
2001. Until the Company has completed a qualified primary offering, as set forth
in the Stock Trading Agreement, the parties to the Stock Trading Agreement may
not sell their shares of Common Stock without complying with the sale
restrictions set forth in such agreement. If the Company does not complete a
qualified public offering within 18 months after September 7, 2001, the parties
may sell their shares subject only to certain trading volume and block sale
limitations set forth in the Stock Trading Agreement.
Each party to the Stock Trading Agreement and the Company has a right of
first offer if any other party to the Stock Trading Agreement intends to sell
its shares in a private transaction. The Stock Trading Agreement will terminate
on September 7, 2004. However, if a qualified primary offering is completed
within three years after the Stock Trading Agreement became effective, the Stock
Trading Agreement will terminate 18 months after the completion of the qualified
primary offering.
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 Series A Preferred Stock,
Par Value $0.01 Per Share, of Electric City Corp. (incorporated by
reference to Exhibit D to Exhibit 2 hereto)
4. 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)
5. Investor Rights Agreement, dated as of July 31, 2001, by and among Electric
City Corp. and the Parties set forth on Schedule I thereto.*
6. Stockholders Agreement, dated as of July 31, 2001, by and among Electric
City Corp. and the Parties set forth on Schedule I thereto.*
7. 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.*
8. 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.
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.
TYCO INTERNATIONAL LTD.
Date: September 17, 2001 By: /s/ MARK H. SWARTZ
--------------------------------
Name: Mark H. Swartz
Title: Executive Vice President
and Chief Financial Officer
CIT HOLDINGS (NV) INC.
Date: September 17, 2001 By: /s/ MARK H. SWARTZ
--------------------------------
Name: Mark H. Swartz
Title: Vice President
THE CIT GROUP, INC.
Date: September 17, 2001 By: /s/ JOSEPH M. LEONE
--------------------------------
Name: Joseph M. Leone
Title: Executive Vice President
and Chief Financial Officer
NEWCOURT CAPITAL USA INC.
Date: September 17, 2001 By: /s/ KAREN SCOWCROFT
--------------------------------
Name: Karen Scowcroft
Title: Vice President
NEWCOURT CAPITAL SECURITIES, INC.
Date: September 17, 2001 By: /s/ DANIEL M. MORASH
--------------------------------
Name: Daniel M. Morash
Title: Managing Director
SCHEDULE I
EXECUTIVE OFFICERS AND DIRECTORS OF TYCO INTERNATIONAL LTD.
Present Principal
Name and Current Business Occupation
Position Held Address or Employment
L. Dennis Kozlowski One Tyco Park Chairman of the Board,
Chairman of the Board, Exeter, NH 03833 President and Chief
President and Executive Officer of Tyco
Chief Executive Officer
Lord Michael A. Carlisle Holdings Limited Chairman of Carlisle
Ashcroft KCMG 60 Market Square Holdings Limited
Director (citizen of Great Belize City, Belize
Britain and Belize)
Joshua M. Berman One Town Center Road Director and Vice
Director and Vice President Boca Raton, FL 33486 President of Tyco
Richard S. Bodman VMS Group Managing General Partner
Director 2 Wisconsin Circle of VMS Group
Suite 610
Chevy Chase, MD 20815
John F. Fort, III 1323 North Boulevard Chairman of the Board
Director Houston, TX 77006 of Insilco Corp.
Stephen W. Foss Foss Manufacturing Chairman and Chief
Director Company, Inc. Executive Officer of
380 Lafayette Road Foss Manufacturing
Hampton, NH 03842 Company, Inc.
Wendy E. Lane Lane Holdings, Inc. Chairman of Lane
Director 348 Grove Street Holdings, Inc.
Needham, MA 02492
James S. Pasman, Jr. One Tyco Park Director of CSAM
Director Exeter, NH 03833 Income Fund, Inc. and
CSAM Strategic Global
Income Fund, Inc.;
Trustee of Deutsche
Bank VIT Funds and
Director of approximately
50 funds in the
Warburg Pincus Funds
Complex and the
Credit Suisse International
Funds Complex
W. Peter Slusser Slusser Associates, Inc. President of Slusser
Director One Citicorp Center Associates, Inc.
Suite 5100
153 East 53rd Street
New York, NY 10022
Mark H. Swartz One Tyco Park Executive Vice President
Executive Vice President, Exeter, NH 03833 and Chief Financial
Chief Financial Officer Officer of Tyco
and Director
Frank E. Walsh, Jr. Sandy Hill Foundation Chairman of Sandy Hill Foundation
Director 330 South Street
Morristown, NJ 07962
Joseph F. Welch The Bachman Company President and Chief Executive Officer of
Director 50 North Fourth Street The Bachman Company
Reading, PA 19612
Mark A. Belnick One Tyco Park Executive Vice President and Chief
Executive Vice President Exeter, NH 03833 Corporate Counsel of Tyco
and Chief Corporate
Counsel
Jerry R. Boggess Three Tyco Park President of Tyco Fire and
President of Tyco Fire and Exeter, NH 03833 Security Services Group
Security Services Group
Albert R. Gamper, Jr. The CIT Group, Inc. President and Chief Executive Officer of
President and Chief Executive 1211 Avenue of the Americas The CIT Group, Inc.
Officer of The CIT Group, Inc. New York, NY 10036
Neil R. Garvey TyCom Ltd. President and Chief Executive Officer of
President and Chief Executive One Tyco Park TyCom Ltd.
Officer of Exeter, NH 03833
TyCom Ltd.
Juergen W. Gromer Postfach Carl Benz Str. President of Tyco Electronics
President of Tyco Electronics 12-14
(citizen of the Federal 64625 Benshiem, Germany
Republic of Germany)
Richard J. Meelia One Tyco Park President of Tyco Healthcare
President of Tyco Healthcare Exeter, NH 03833 Group
Group
SCHEDULE II
EXECUTIVE OFFICERS AND DIRECTORS OF
CIT HOLDINGS (NV) INC.
Present Principal Occupation or
Name and Position Held Current Business Address Employment
L. Dennis Kozlowski Tyco International (US) Inc. Chairman of the Board, President and
President and Director One Tyco Park Chief Executive Officer of Tyco
Exeter, NH 03833 International Ltd.
Mark H. Swartz Tyco International (US) Inc. Executive Vice President and Chief
Vice President and Director One Tyco Park Financial Officer of Tyco International
Exeter, NH 03833 Ltd.
Mark A. Belnick Tyco International (US) Inc. Executive Vice President and Chief
Vice President and Director One Tyco Park Corporate Counsel of Tyco International
Exeter, NH 03833 Ltd.
Mark D. Foley Tyco International (US) Inc. Senior Vice President, Finance of Tyco
Vice President One Tyco Park International (US) Inc.
Exeter, NH 03833
Irving Gutin Tyco International (US) Inc. Senior Vice President of Tyco
Vice President One Tyco Park International (US) Inc.
Exeter, NH 03833
J. Brad McGee The CIT Group, Inc. Executive Vice President and Chief
Vice President 1211 Avenue of the Americas Administrative Officer of The CIT Group,
New York, NY 10036 Inc.
M. Brian Moroze Tyco International (US) Inc. General Counsel of Tyco International
Secretary One Tyco Park (US) Inc.
Exeter, NH 03833
Patty Prue Tyco International (US) Inc. Senior Vice President, Human Resources of
Vice President One Tyco Park Tyco International (US) Inc.
Exeter, NH 03833
Michael A. Robinson Tyco International (US) Inc. Senior Vice President and Corporate
Treasurer One Tyco Park Treasurer of Tyco International (US) Inc.
Exeter, NH 03833
Scott Stevenson Tyco International (US) Inc. Senior Vice President, Tax of Tyco
Vice President and Assistant One Tyco Park International (US) Inc.
Treasurer Exeter, NH 03833
Mark A. Whitney Tyco International (US) Inc. Senior Corporate Counsel, Business
Vice President and Assistant One Tyco Park Development of Tyco International (US)
Secretary Exeter, NH 03833 Inc.
SCHEDULE III
EXECUTIVE OFFICERS AND DIRECTORS OF
THE CIT GROUP, INC.
Present Principal Occupation
Name and Position Held Current Business Address or Employment
L. Dennis Kozlowski Tyco International (US) Inc. Chairman of the Board, President and Chief
Director One Tyco Park Executive Officer of Tyco International Ltd.
Exeter, NH 03833
Albert R. Gamper, Jr. 1211 Avenue of the Americas President and Chief Executive Officer of The CIT
Director, President and New York, NY 10036 Group, Inc.
Chief Executive Officer
Mark H. Swartz Tyco International (US) Inc. Executive Vice President and Chief Financial
Director One Tyco Park Officer of Tyco International Ltd.
Exeter, NH 03833
J. Brad McGee 1211 Avenue of the Americas Executive Vice President and Chief
Director, Executive Vice New York, NY 10036 Administrative Officer of The CIT Group, Inc.
President and Chief
Administrative Officer
Joseph M. Leone 1211 Avenue of the Americas Executive Vice President and Chief Financial
Director, Executive Vice New York, NY 10036 Officer of The CIT Group, Inc.
President and Chief Financial
Officer
Robert J. Ingato 1211 Avenue of the Americas Executive Vice President and General Counsel of
Executive Vice President and New York, NY 10036 The CIT Group, Inc.
General Counsel
SCHEDULE IV
EXECUTIVE OFFICERS AND DIRECTORS OF NEWCOURT CAPITAL USA INC.
Present Principal Occupation
Name and Position Held Current Business Address or Employment
David D. McKerroll 1211 Avenue of the Americas President of Newcourt Capital USA
Director and President of 22nd Floor Inc. and Group CEO of Structured
Newcourt Capital USA Inc. and New York, NY 10036 Finance for CIT
Group CEO of Structured
Finance for CIT
(citizen of Canada)
J. Daryl MacLellan 1211 Avenue of the Americas Chief Operating Officer of Newcourt
Director and Chief 22nd Floor Capital USA Inc.
Operating Officer New York, NY 10036
(citizen of Canada)
Daniel M. Morash 1211 Avenue of the Americas Managing Director of Newcourt
Managing Director 22nd Floor Capital USA Inc.
New York, NY 10036
John C. Wehner 1211 Avenue of the Americas Senior Vice President of Newcourt
Senior Vice President 22nd Floor Capital USA Inc.
New York, NY 10036
Robert Golding 1211 Avenue of the Americas Vice President of Newcourt Capital
Vice President 22nd Floor USA Inc.
New York, NY 10036
SCHEDULE V
EXECUTIVE OFFICERS AND DIRECTORS OF NEWCOURT CAPITAL SECURITIES, INC.
Present Principal Occupation
Name and Position Held Current Business Address or Employment
David D. McKerroll 1211 Avenue of the Americas President of Newcourt Capital
Director and President of 22nd Floor Securities, Inc.
Newcourt Capital Securities, New York, NY 10036
Inc.
(citizen of Canada)
J. Daryl MacLellan 1211 Avenue of the Americas Chief Operating Officer of Newcourt
Chief Operating Officer 22nd Floor Capital Securities, Inc.
(citizen of Canada) New York, NY 10036
Murray A. Eastwood 1211 Avenue of the Americas Chief Credit Officer of Newcourt
Chief Credit Officer 22nd Floor Capital Securities, Inc.
(citizen of Canada) New York, NY 10036
Michael E. Stupay 1211 Avenue of the Americas Financial and Operations Principal of
Financial and Operations 22nd Floor Newcourt Capital Securities, Inc.
Principal New York, NY 10036
Johannes G.M. Derksen 1211 Avenue of the Americas Managing Director of Newcourt Capital
Managing Director 22nd Floor Securities, Inc.
(citizen of Holland) New York, NY 10036
Daniel M. Morash 1211 Avenue of the Americas Managing Director of Newcourt Capital
Director and Managing 22nd Floor Securities, Inc.
Director New York, NY 10036
Robert W. Sexton 1211 Avenue of the Americas Managing Director of Newcourt Capital
Director and Managing 22nd Floor Securities, Inc.
Director New York, NY 10036
Eric S. Mandelbaum 650 CIT Drive Secretary of Newcourt Capital
Secretary Livingston, NJ 07039 Securities, Inc.
Robert J. Ingato 650 CIT Drive Assistant Secretary of Newcourt
Assistant Secretary Livingston, NJ 07039 Capital Securities, Inc.