Case 1-08-cv-10378-RWZ Document 1 Filed 03/06/2008 Page 1 ...securities.stanford.edu › ... ›...

Case 1-08-cv-10378-RWZ Document 1 Filed 03/06/2008 of 37

UNITED STATES DISTRICT COURTDISTRICT OF MASSACHUSETTS

GALEN CALVERT, Individually AndOn Behalf of All Others Similarly Situated,

CIVIL ACTION NO.

Plaintiff,

vs. CLASS ACTION COMPLAINTFOR VIOLATIONS OFFEDERAL SECURITIES LAWS

ENERNOC, INC., TIMOTHY G. HEALY,TJ GLAUTHIER, WILLIAM D. LESE,DAVID B. BREWSTER, ADAM GROSSER,NEAL C. ISAACSON, RICHARD DIETER,MORGAN STANLEY & CO. INC., andCREDIT SUISSE SECURITIES (USA) LLC,

Defendants

JURY TRIAL DEMANDED

NATURE OF THE ACTION

1. This is a class action brought on behalf of the purchasers of EnerNOC, Inc.

("EnerNOC" or the "Company") common stock pursuant to its November 14, 2007 Secondary

Offering (the "Secondary Offering" or the "Offering") of 2.5 million shares ofcommon stock priced

at $43.00 per share. In connection with this Offering - during which only 500,000 shares were sold

by the Company and 2 million shares were sold by insiders' - defendants raised gross proceeds of at

least $107.5 million, not including an additional $16.125 million in Company stock sold in

connection with the Secondary Offering pursuant to the underwriters' over-allotment option.

1 In total, insiders sold at least 2.2 million shares, including those shares sold by Underwriters pursuant to theOver-subscription Option Agreement, to reap illicit gross proceeds of at least $94.6 million._

1


2. EnerNOC, its entire Board ofDirectors, its ChiefFinancial Officer, and certain ofthe

underwriters involved in the Secondary Offering (including Morgan Stanley & Co. Inc. and Credit

Suisse Securities (USA), LLC ) are each charged with publishing and filing with the SEC a

materially false and misleading registration statement and prospectus in connection therewith in

direct violation of the Securities Act of 1933. Specifically, defendants each failed to conduct an

adequate due diligence investigation into the Company prior to that Offering and they also each

failed to reveal that, at the time of the Secondary Offering, the Company was not performing

according to plan and it was foreseeable that the fourth quarter would result in a maj or earnings miss

and losses more than 60% higher than defendants had guided investors and analysts to expect.

3. It was only on February 27, 2008, after defendants and other Company insiders had

liquidated over $94.6 million of their personally-held shares in connection with the Secondary

Offering, that EnerNOC revealed that it would report a much larger than expected loss of over $0.48

per share, well below analysts' consensus estimates of $0.30 per share. This loss was a result ofrun

away expenses, particularly related to compensation and the cost of operations.

4. These belated disclosures shocked and alarmed investors as is evident from the fact

that shares of EnerNOC collapsed immediately after defendants published fourth quarter results -

falling over 36% in a single trading day and plummeting from $25.50 per share to close at $16.31

per share on February 27, 2008. That trading day, over 3.145 million EnerNOC shares traded -

more shares than were initially sold in the Secondary Offering and many times the Company's near-

term average trading volume.

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JURISDICTION AND VENUE

5. The claims asserted herein arise under §§ 11, 12(a)(2), and 15 of the Securities Act,

15 U.S.C. §§ 77k and 77o, and rules promulgated thereunder by the Securities and Exchange

Commission (the "SEC")

6. Jurisdiction is conferred by § 22 of the Securities Act of 1933. 15 U.S.C. §77v.

7. Venue is also proper in this District pursuant to § 22 ofthe Securities Act. Defendant

EnerNOC maintains its principal place of business within this District and/or the Individual

Defendants conduct business in, and many of the acts giving rise to the violations complained of

herein, took place in this District.

8. Venue is also proper pursuant to § 22 of the Securities Act because the Underwriter

Defendants , Morgan Stanley & Co . Inc. and Credit Suisse Securities (USA), LLC., each conduct

business in, and the wrongful conduct took place in, this District.

9. In connection with the acts alleged in this complaint, defendants directly or indirectly

used the means and instrumentalities of interstate commerce, including, but not limited to, the mails,

interstate telephone communications, and the facilities of the national securities markets.

THE PARTIES

Plaintiff

10. Plaintiff GALEN CALVERT purchased shares ofEnerNOC common stock pursuant

and/or traceable to the Company's materially false and misleading registration statement and

prospectus issued by defendants in connection with the November, 2007 Secondary Offering,

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including those shares detailed in the attached Certification, incorporated herein by reference, and

was damaged thereby.

Corporate Defendant

11. Defendant ENERNOC NETWORK is a Delaware Corporation which maintains its

chief executive offices and principal place of business at 75 Federal Street, Suite 300, Boston, MA.

According to the Company' s recent press releases , EnerNOC is a leading developer and provider of

clean and intelligent energy solutions to utilities and electric power grid operators, as well as

commercial, institutional, and industrial customers. The Company's energy management solutions

purportedly help optimize the balance of electric supply and demand to manage remotely and reduce

electricity consumption across a network of commercial, institutional, and industrial customer sites.

Individual Defendants

12. The individuals identified as defendants in subparagraphs (a) - (g) below, are referred

to collectively herein as the "Individual Defendants." The Individual Defendants are each liable for

the false statements contained in the materially false and misleading registration statement and

prospectus, as alleged herein, as those statements were "group-published" information. The

Individual Defendants include the following:

(a) Defendant TIMOTHY G. HEALY ("Healy") was, at the time of the

November, 2007 Secondary Offering, Chairman of the Board of Directors and Chief Executive

Officer of EnerNOC. Defendant Healy signed the materially false and misleading registration

statement and filed with the SEC the materially false and misleading registration statement and

prospectus issued in connection with the Secondary Offering. Also in connection with this

Secondary Offering, defendant Healy sold over $2.631 million in EnerNOC shares he owned or

4


controlled.

(b) Defendant DAVID B. BREWSTER ("Brewster") was, at the time of the

November, 2007 Secondary Offering, President and Chief Operating Officer and a member of the

Board of Directors of EnerNOC. Defendant Brewster signed the materially false and misleading

registration statement and filed with the SEC the materially false and misleading registration

statement and prospectus issued in connection with the Secondary Offering. Also in connection with

this Secondary Offering, defendant Brewster sold over $5.751 million EnerNOC shares he owned or

controlled.

(c) Defendant NEAL C. ISAACSON ("Isaacson") was, at the time of the

November, 2007 Secondary Offering, Chief Financial Officer and Treasurer of EnerNOC.

Defendant Isaacson signed the materially false and misleading registration statement and filed with

the SEC the materially false and misleading registration statement and prospectus issued in

connection with the Secondary Offering. Also in connection with this Secondary Offering,

defendant Isaacson sold over $1.022 million EnerNOC shares he owned or controlled.

(d) Defendant RICHARD DIETER ("Dieter") was, at the time ofthe November,

2007 Secondary Offering, a member of the Board of Directors of EnerNOC. Defendant Dieter

signed the materially false and misleading registration statement and filed with the SEC the

materially false and misleading registration statement and prospectus issued in connection with the

Secondary Offering.

(e) Defendant TJ GLAUTHIER ("Glauthier") was, at the time ofthe November,

2007 Secondary Offering, a member of the Board of Directors of EnerNOC. Defendant Glauthier



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Secondary Offering.

(f) Defendant ADAM GROSSER ("Grosser") was, at the time ofthe November,

2007 Secondary Offering, a member of the Board of Directors of EnerNOC . Defendant Grosser



Secondary Offering. Also in connection with this Secondary Offering, defendant Grosser sold over

$27.199 million in EnerNOC shares he owned or controlled.

(g) Defendant WILLIAM D. LESE ("Lese") was, at the time ofthe November,

2007 Secondary Offering, a member ofthe Board ofDirectors ofEnerNOC . Defendant Lese signed

the materially false and misleading registration statement and filed with the SEC the materially false

and misleading registration statement and prospectus issued in connection with the Secondary

Offering. Also in connection with this Secondary Offering, defendant Lese sold over $18.796

million in EnerNOC shares he owned or controlled.

Underwriter Defendants

13. In connection with the November, 2007 Secondary Offering, the following

investment banks, including defendant MORGAN STANLEY & CO. INC. ("Morgan Stanley")

and defendant CREDIT SUISSE SECURITIES (USA) LLC ("Credit Suisse"), acted as Lead

Underwriters or "Joint Book Running Agents" of the Secondary Offering . The Underwriter

Defendants distributed 2.5 million shares of EnerNOC stock to investors, initiating the first public

market for EnerNOC shares, and distributed an additional 375,000 shares upon exercise of the

underwriters' over-allotment option. Excluding the over-allotment option of an additional 375,000

shares , the distribution of the EnerNOC shares awarded to the underwriters in the Secondary

Offering occurred, as follows:

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NumberUnderwriter of Shares

Undcrvv ritcr Defendant Credit Suisse 875,000

Underwriter Defendant Morgan Stanley 825,000

Non-Part Underwriter Canaccord Adams Inc. 375,000

Non-Partv Undcrvv ritcr Jcffcrics & Companv _ Inc. 250,000

Non-Partv Undcrvv ritcr Pacific Growth Equities. LLC 175,000

Total 2 ,500,000

14. In connection with the November, 2007 Secondary Offering, the Underwriter

Defendants were paid over $6.02 million in gross fees - paid indirectly by purchasers of the

Company's shares. The Underwriter Defendants were paid at least $2.0963 per share in connection

with the sale of the 2.875 million shares, including shares sold pursuant to the exercise of the

underwriter's over-allotment option, as follows:

Per Share Total

Without With Without With

Over-allotment Over-allotment Over-allotment Over- allotment

Undcnvriting Discounts andCommissions paid by us 2 .0% 2.096, 1.04$.15 0 I.110.18$

Expenses pa, able bv us 1.40 I.12 700.000 700.000Underwriting Discounts andCommissions paid b.\ insiders 2.0% 4 I )2.000 4 710.(7^

15. Shareholders paid over $6.72 million in fees to compensate the Underwriter

Defendants for conducting a purported significant "due diligence" investigation into EnerNOC in

connection with the Secondary Offering. The Underwriter Defendants' due diligence investigation

7


was a critical component of the Secondary Offering and was supposed to provide investors with

important safeguards and protections.

16. The due diligence investigation that the Underwriter Defendants were required to

perform should have included a detailed investigation into EnerNOC sales, accounting, controls, and

procedures and it also required the Underwriter Defendants to test the assumptions and verify the

projections adopted or ratified by defendants to the extent a reasonable investor with access to such

confidential corporate information would. A reasonable due diligence investigation would have

extended well beyond a mere casual view of EnerNOC' s books and records , accounting and

financial reports, and operational and financial controls. The failure of the Underwriter Defendants

to conduct an adequate due diligence investigation was a substantial contributing factor leading to

the harm complained of herein.

17. In addition to the foregoing, because of the Underwriter Defendants' and Individual

Defendants' positions with the Company, they each had access to the adverse undisclosed

information about EnerNOC's business, operations, products, operational trends, financial

statements, markets, and present and future business prospects via access to internal corporate

documents (including the Company's operating plans, budgets and forecasts, and reports of actual

operations compared thereto), conversations and connections with other corporate officers and

employees, attendance at management and Board ofDirectors meetings and committees thereof, and

via reports and other information provided to them in connection therewith.

18. In addition to the Underwriter Defendants, it is also appropriate to treat the Individual

Defendants named herein as a group for pleading purposes and to presume that the false, misleading,

and incomplete information conveyed in the Company's Secondary Offering registration statement

and prospectus, as alleged herein, are the collective actions of the narrowly defined group of

8


defendants identified above. Each of the Individual Defendants, by virtue of their high-level

positions with the Company, directly participated in the management ofthe Company, was directly

involved in the day-to-day operations of the Company at the highest levels, and was privy to

confidential proprietary information concerning the Company and its business, operations, products,

growth, financial statements, and financial condition, as alleged herein. Accordingly, the Individual

Defendants were also involved in drafting, producing, reviewing and/or disseminating the false and

misleading statements and information alleged herein, and approved or ratified these statements in

violation of the federal securities laws.

19. As officers and controlling persons of a publicly-held company whose common stock

was, and is, registered with the SEC pursuant to the Exchange Act, and was traded on the Nasdaq

stock market exchange (the "Nasdaq"), and governed by the provisions of the federal securities laws,

the Individual Defendants each had a duty to promptly disseminate accurate and truthful information

with respect to the Company's financial condition and performance, growth, operations, financial

statements, business, products, markets, management, earnings and present and future business

prospects, and to correct any previously-issued statements that had become materially misleading or

untrue, so that the market price of the Company's publicly-traded common stock would be based

upon truthful and accurate information. The Individual Defendants ' misrepresentations and

omissions made in connection with the issuance ofcommon stock in November, 2007, violated these

specific requirements and obligations.

20. The Individual Defendants, because of their positions of control and authority as

officers and/or directors of the Company, were able to and did control the content ofthe Secondary

Offering registration statement and prospectus, pertaining to the Company at the time of the

Offering. Each Individual Defendant was provided with copies of the documents alleged herein to

9


be misleading prior to or shortly after their issuance and/or had the ability and/or opportunity to

prevent their issuance or cause them to be corrected. Accordingly, each of the Individual

Defendants is responsible for the accuracy of the public reports and releases detailed herein and are

therefore primarily liable for the representations contained therein.

MATERIALLY FALSE & MISLEADING STATEMENTSIN THE REGISTRATION STATEMENT AND PROSPECTUS

21. On November 14, 2007, defendants published a release announcing that EnerNOC

had priced the Secondary Offering of its common stock at $43.00 per share - well above the $26.00

per share price at which defendants had sold over 4.3 million shares of common stock pursuant to

the Company's Initial Public Offering only months before in mid-May 2007. This release stated, in

part, the following:

EnerNOC prices $107.5 million secondary offering

Last update: 6:16 a.m. EST Nov. 14, 2007

WASHINGTON (MarketWatch) -- EnerNoc Inc. (ENOC) said its secondary publicoffering of 2.5 million common shares has been priced at $43 each. The Boston-based company has earmarked proceeds to fund the expansion of its business intonew regions and add to its customer base, to fund research and development, toprovide funds for acquisitions and for other general corporate purposes. EnerNoc, adeveloper and provider of "clean" energy systems, said the offering encompasses 2million shares offered by certain stockholders as well as 500,000 shares offered bythe company.

22. Later the same day, on November 14, 2007, EnerNOC initiated the Secondary

Offering and sold 2 . 5 shares at $43.00 per share for $107. 5 million in gross proceeds . These shares

were sold pursuant to a prospectus and registration statement filed with the SEC pursuant to Form

424B4. This prospectus issued in connection with the EnerNOC Secondary Offering was materially

false and misleading , and misstated material facts about the Company at the time of the Offering.

Rather than disclose the problems that existed within the Company, the registration statement and

10


prospectus concealed the facts that expenses and compensation costs were already trending well

above plan at the time of the Offering and that it was already foreseeable that the Company would

not be able to achieve guidance sponsored or endorsed by defendants for 4Q:07.

23. In fact, rather than disclose that the Company was already operating well above plan

at the time of the Offering, the prospectus focused investors instead on EnerNOC's purported

"Competitive Strengths." Investors were then conditioned to believe that these Competitive

Strengths would continue to allow the Company to report financial results and results of operations

within expectations sponsored or endorsed by defendants when defendants stated, in part, as follows:

Competitive Strengths

Our competitive strengths position us for continued leadership and rapidexpansion in the clean and intelligent power solutions sector.

First-Mover Advantage with National Presence. We are a pioneer in thedevelopment, implementation and broader adoption of technology-enabled demandresponse solutions to commercial, institutional and industrial customers on a nationalscale. We believe that with approximately 2,034 customer sites in our demandresponse network across multiple electric power grids as of September 30, 2007, weare the largest national demand response service provider for commercial,institutional and industrial customers. We reliably delivered our demand responsecapacity over 50 times in 2006 and over 100 times in the first nine months of 2007,when called upon by grid operators and utilities. We regularly respond tosimultaneous events in multiple geographic regions and on August 15, 2007, wedispatched resources within our demand response network in response to ninecontemporaneous events in three different regions ofthe United States. Our averageperformance in events during the summer of 2006, measured as delivered capacityover committed capacity, was greater than 97%. As a result, we have developed asubstantial base of operating experience in delivering demand response solutions.

Highly Scalable Business Model Focused on Commercial, Institutional andIndustrial Customers. The large size of our target customers, along with ourenterprise energy management software platform, enables us to rapidly scale ourbusiness in existing and new geographies. Once a demand response market isestablished in a region, the marginal cost of acquiring and servicing commercial,institutional and industrial customers is relatively low. In addition, the large size ofour target end-use customers significantly lowers our acquisition cost per unit ofcapacity compared to the acquisition cost of residential customers. Commercial,

11


institutional and industrial customers also often have one decision maker whocontrols multiple sites, thereby accelerating our acquisition of new capacity undermanagement, lowering our cost to expand our network of managed sites andproviding more opportunities to sell our energy management solutions.

Recurring Revenues . We engage in long-term contracts and participate in openmarket programs with grid operators and utilities through which we are paidrecurring payments, typically on a monthly basis, for the capacity that we makeavailable, whether or not we are called upon to reduce our end-use customers'electricity consumption from the electric power grid. These long-term contractsgenerally range between three and 10 years in duration. These recurring paymentssignificantly increase the visibility and predictability of our future revenues. Inaddition, we enter into long-term agreements with commercial, institutional andindustrial customers that provide us with demand response capacity. These contractscontribute to customer loyalty and foster end-use customer retention. Although notpart of their initial arrangement, a portion of these recurring cash flows can be usedby our commercial, institutional and industrial customers to purchase our suite ofenergy management solutions.

Comprehensive Technology Platform. Our scalable, proprietary technologyplatform, in addition to our operations experience, creates significant barriers toentry. We communicate via the Internet using advanced metering applications andautomation equipment that we install at end-use customer sites to make demandresponse participation viable for a wide range of commercial, institutional andindustrial organizations. The open design architecture of our proprietary technologyplatform enables us to interface with existing and new energy management andbuilding automation systems at customer sites which use a variety of protocollanguages. Once an end-use customer is enabled in our network, we collect real-timeenergy consumption data. This data enables our software to perform demandresponse measurement and verification, and also provides the underlying informationto conduct further energy management analysis and provide decision-makingsupport. In addition, rather than being limited to curtailing electricity used by aspecific type of equipment, such as air-conditioning units, our platform enables us tomanage a wide array of equipment and systems to implement appropriate demandresponse solutions on an end-user by end-user basis.

Growing Customer Base. We have rapidly and significantly grown our base ofgrid operator and utility customers since inception. As of September 30, 2007, ourgrid operator and utility customer base included ISO New England, New York ISO,PJM Interconnection, The Connecticut Light and Power Company, Pacific Gas andElectric Company, Southern California Edison Company, San Diego Gas andElectric Company, Public Service Company of New Mexico and Tampa ElectricCompany, among others. As of September 30, 2007, we had approximately 691 end-use commercial, institutional, and industrial customers for our demand responsesolutions, including Adobe Systems, Albertsons, AT&T, California State University,

12


General Electric, Level 3 Communications, Pfizer, and Stop & Shop, among others.In addition, because we have a national presence, we are able to offer a singleplatform for national chains to participate in our solutions across differentgeographic regions with different market rules and conditions. The Mdenergyacquisition included the addition of over 400 new commercial, institutional andindustrial customers to whom we now provide energy management solutions.

24. Further conditioning investors to believe that the Company was continuing to operate

according to plan, the Secondary Offering registration statement and prospectus also stated that the

Company was continuing to take advantage of significant "Market Opportunities" that would

forseeably allow the Company to meet or exceed expectations, stating, in part, as follows:

Our Market Opportunity

According to the International Energy Agency, electric power infrastructureexpenditures in the United States and Canada are expected to exceed $1.6 trillionbetween 2003 and 2030. We estimate that over 10% of the electric powerinfrastructure in North America has been constructed in order to supply electricityduring periods ofpeak demand that occur less than 1% ofthe time, or approximately88 hours per year. Based on these estimates, we believe that the market in the UnitedStates and Canada for reducing demand during these critical peak hours, in place ofbuilding supply infrastructure, is $5.9 billion per year, if the need to build-outinfrastructure occurs on an equal annual basis. Using the same assumptions, weestimate that the market for eliminating the top 1% of peak demand for electricityworldwide during this same period could be over $35 billion per year.

We provide our demand response solutions to grid operators and utilities under long-term contracts and pursuant to open market bidding programs. Our long-termcontracts generally have terms of three to 10 years and predetermined capacitycommitment and payment levels. In open market programs, grid operators andutilities generally seek bids from companies such as ours to provide demandresponse capacity based on prices offered in competitive bidding. Theseopportunities are generally characterized by energy and capacity obligations withshorter commitment periods and prices that may vary by hour, by day, by month, orby bidding period.

[W]e have substantial opportunities to continue expanding our capacity undermanagement in the regions in which we already provide our demand responsesolutions as well as in other regions in North America and, eventually,internationally....

13


25. Based in substantial part on the foregoing, the Secondary Offering prospectus and

registration statement also omitted to disclose that, at the time of the Offering, EnerNOC was

experiencing material problems that would not allow the Company to achieve its purported Growth

Strategy. Rather, defendants reported the Company's purported Strategy in the prospectus, in part,

as follows:

Strategy

Our goal is to capitalize on our scalable andproprietary technology platform aswell as our leading market position to continue providing clean and intelligentenergy solutions to commercial, institutional and industrial customers, gridoperators, and utilities. Ultimately, our goal is to become the leading outsourcedenergy management solutions provider for commercial, institutional and industrialcustomers worldwide. Key elements of our strategy include:

Target Aggressive Expansion in Existing Territories . We will continue to pursueopportunities to provide demand response capacity to grid operators and utilities inmarkets where we currently operate through additional long-term contracts and openmarket opportunities for demand response capacity. To provide this demand responsecapacity, we will enter into additional long-term agreements with commercial,institutional and industrial customers. We will also seek to provide additional energymanagement solutions to these end-use customers. Our direct sales force willcontinue to primarily focus their efforts on the six following vertical markets:technology, education, food sales and storage, government, healthcare, andmanufacturing/industrial. We believe that our full-service demand response andenergy management solutions, the recurring payments that we provide and ournational presence will enable us to continue to pursue rapid growth of our end-usecustomer base.

Strengthen National Presence by Entering New Geographic Regions. We willalso continue to expand our addressable market by pursuing new demand responseand energy management opportunities in new geographic regions. We intend toaccomplish this and capitalize on the trend toward a more responsive and distributedelectricity grid by (i) educating and marketing to existing and prospective customers,consumer advocates, consultants, industry experts, and policy makers; (ii) designingand developing demand response programs and goals in cooperation with gridoperators, utilities, regulators, and governmental agencies; and (iii) continuallyenhancing our demand response and energy management solutions.

Expand Sales of Our Growing Portfolio of Technology-Enabled EnergyManagement Solutions. We believe that our demand response solutions have

14


uniquely positioned us to deliver additional energy management solutions to ourgrowing network of commercial, institutional and industrial customers. We willcontinue to leverage our technology, including our PowerTrak energy managementsoftware platform. This platform enables us to measure, manage, benchmark, andoptimize end-use customers' energy consumption and facility operations. We willcontinue to use real-time and historical energy data to help end-use customersanalyze and control their consumption of electricity, forecast demand, measure real-time performance during demand response events, continuously monitor buildingmanagement equipment to optimize system operation, model rates and tariffs, andcreate energy scorecards to benchmark similar facilities. In addition, we willcontinue to bring energy procurement-related services and emissions trackingsolutions to our customers. We believe that end-use customers will becomeincreasingly aware of their energy costs and consumption and will look to advancedanalytics and trusted third-party providers to help them better manage their overallenergy expenditures.

Pursue Targeted Strategic Acquisitions. We intend to pursue selectiveacquisitions to reinforce our leadership position in the expanding clean andintelligent energy solutions sector. This sector consists of a number of companieswith offerings or customer relationships that present attractive acquisitionopportunities. Our track record includes successfully integrating acquired companiesto increase our customer base, enter new geographic territories and enhance ourtechnology. In September 2007, we acquired Mdenergy, LLC, an energyprocurement service provider to augment our energy management solutions.

26. To execute this purported Growth Strategy, defendants described the Company's

business model and operations "Solution" in a manner reasonably designed to condition investors to

believe that EnerNOC was continuing to operate according to plan. Thus, the Offering prospectus

reported additional purported competitive advantages that resulted from the market's acceptance of

the unique attributes of EnerNOC's products and services, including, in part, the following:

The EnerNOC Solution

We have developed aproprietary suite oftechnology applications and operationalprocesses that enable us to make demand response capacity and energy availableto grid operators and utilities on demand and remotely manage electricityconsumption at commercial, institutional and industrial customer sites. Oursolution provides thefollowing benefits:

Compelling Value Proposition to Grid Operators and Utilities . On the supplyside , grid operators and utilities deploy our technology-enabled demand response

15


solutions to supplement, avoid, or defer costly investments in generation,transmission and distribution facilities and to enhance the reliability of the electricpower system. Our demand response solution helps grid operators and utilitiesachieve their capacity and capacity reserve margin goals quickly and economicallyand allows them to diversify their portfolio of resources, without requiring theinstallation of any hardware or software at their facilities. Whereas it typically takesyears to site, permit and construct a power plant and the associated transmission anddistribution infrastructure, demand response capacity can be enabled within months,in densely populated, constrained areas, exactly where the new capacity is neededmost and with no need for new transmission or distribution infrastructure. We eitherenter into long-term contracts to sell our demand response capacity to grid operatorsand utilities, or participate in the open market opportunities for demand response thatthey establish. Together with these demand response solutions, our energymanagement solutions enhance the reliability of regional electric power grids byproviding grid operators and utilities the ability to measure, manage, shift and reduceenergy consumption in specific distribution areas within minutes.

Compelling Value Proposition to End-Use Customers. On the demand side, ourturnkey, outsourced demand response and energy management solutions create newstreams of recurring cash flows, reduce energy costs, and simplify energymanagement for participating commercial, institutional and industrial customers. Ourofferings involve no up-front capital investment on the part of the participatingcustomer. We share payments, called capacity payments, that we receive from gridoperators and utilities with our end-use customers for giving us the ability to reducetheir electrical consumption whether or not we are actually called upon to do so. Wealso generally make additional payments, called energy payments, when theyactually reduce their consumption from the electric power grid.

Energy Management Solutionsfor End-Use Customers. Our demand responsesolutions position us to deliver a complete portfolio of energy management solutionsto our commercial, institutional and industrial customers. These end-use customersare increasingly focused on efficiently managing their energy consumption andreducing costs. The real-time energy consumption data that we gather in ourPowerTrak energy management software platform empowers us to developcustomized energy management solutions that can be used across departments andfunctions throughout a customers operations on an enterprise-wide basis, to reduceour end-use customers' energy costs. The devices that we have installed inconnection with our demand response solutions enable us to implement many ofthese solutions. By delivering a recurring cash stream for our end-use customers, weare often viewed by them as a trusted partner who can help address their increasinglycomplex energy challenges.

Open, Scalable and Secure Architecture . Our NOC is supported by ourPowerTrak enterprise energy management software platform, which is built on anopen and scalable Web services architecture. PowerTrak is able to interface with

16


energy management and building automation systems at commercial, institutionaland industrial sites, thereby enabling us to cost-effectively leverage existingtechnology for remote monitoring and control from ourNOC. PowerTrak's analyticaltools enable a single NOC operator to supervise hundreds of end-use metering andcontrol points and simultaneously optimize demand response performance andenergy savings measures across numerous customer sites and geographic regions.We have built a comprehensive security infrastructure, including firewalls, intrusiondetection systems, and data encryption, and have established fail-over redundancyfor our information technology systems.

Reduced Environmental Impact. By reducing electricity consumption duringperiods of peak demand and other system emergencies, our demand responsesolutions can displace older, inefficiently-used power plants, and defer newgeneration, transmission and distribution development, resulting in reducedemissions and land use benefits. These environmental benefits are particularly clearwhen demand response capacity qualifies under regional regulations as operatingreserves. In these areas, grid operators and utilities call on demand response whencontingencies such as power plant or transmission outages occur, which can offsetthe need to keep centralized peaking power plants running on idle for thousands ofhours per year. Dispatchable demand response capacity therefore allows gridoperators and utilities to meet reserve requirements with significantly lessenvironmental impact than conventional supply-side alternatives. In addition, webelieve that growing participation in demand response by commercial, institutionaland industrial organizations will lead to an increased focus on energy managementefforts, including energy efficiency and conservation, through which end-usecustomers can significantly reduce air emissions.

27. The Secondary Offering also described the Selling Shareholders , in part , as follows:

Beneficial Owner

Shares Beneficially Shares Beneficially

Owned Prior to Owned After

this OfferingShares

this OfferingBeing Sold

in this

Number Percent Offering Number Percent

Shares Being

Sold if

Over-Allotment

is Exercised

in Full

Shares Beneficially

Owned After

Offering if

Over-Allotment

is Exercised in Full

Number Percent

Directors: andLvc''CUtive Officers:

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Funds affiliated with

Foundation Capital

Management Co. IV,

LLC(13) 3,422,470 18.44% 665,000 2,757,470 14.46% - 2,757,470 14.37%

Draper Fisher

Jurvetson New

England Fund I

(SBIC), L.P.(15) 1,366,563 7.36% 354,735 1,011,828 5.31% 106,952 904,876 4.72%

Braemar Energy

Ventures, LP(16) 1,774,289 9.56% 459,563 1,314,726 6.90% 139,122 1,175,604 6.13%

Other SellingStockholders1ham^i,1. Atkin,( I7) 11.739 I2U_UUO 491.7'9 4)I_T9 3.>ti°6

William I Ian U I S i (;-l_U„ * )7) ^4_O4

Anna IZoslicri U^_ti^ l 2(,°6 I OU_UUO 5O>_(;54 -0O _(,>4 o4

Glycol, i,1nc.(19) 3,3U3 T 746 2,557 T 272 2,285 T

[Selected Notes]

(13) Includes 3,367,298 shares of common stock held by FoundationCapital IV, L.P., 654,277 of which are being offered for sale pursuant to thisregistration statement, 28,578 shares of common stock held by Foundation CapitalIV Principals Fund, LLC, 5,556 of which are being offered for sale pursuant to thisregistration statement, and 26,594 shares of common stock held by FC IV ActiveAdvisors, LLC, 5,167 ofwhich are being offered for sale pursuant to this registrationstatement. The voting and disposition of the shares held by Foundation Capital IV,L.P., Foundation Capital IV Principals Fund, LLC and FC IV Active Advisors, LLCis determined by the managers of Foundation Capital Management Co. IV, LLC,which is the manager of each of the Foundation funds. Adam Grosser, a member ofour board ofdirectors, is a manager ofFoundation Capital Management Co. IV,LLC and shares voting and dispositive power over these shares with the othermanagers of Foundation Capital Management Co. IV, LLC: William Elmore,Kathryn Gould, Paul Holland, Paul Koontz, Michael Shuh and Warren Weiss.Mr. Grosser disclaims beneficial ownership ofthese shares except to the extent of hispecuniary interest therein.

(15) The voting and disposition of the shares held by Draper Fisher Jurvetson New

England Fund I (SBIC), L.P. is determined by the investment committee of Draper

Fisher Jurvetson New England Fund I (SBIC), LLC, which is the general partner of

Draper Fisher Jurvetson New England Fund I (SBIC), L.P. Scott M. Johnson, a

former member of our board of directors , John Fisher, Todd Hixon and Timothy

Rowe are members of the investment committee of Draper Fisher Jurvetson New

England Fund I (SBIC), L.P. and share voting and dispositive power over these

shares . Messrs . Johnson, Fisher, Hixon and Rowe disclaim beneficial ownership of

these shares except to the extent of their pecuniary interest therein.

18


(16) The voting and disposition of the shares held by Braemar Energy Ventures,L.P. is determined by the investment committee ofBraemar Partners, LLC, which isthe general partner of Braemar Power and Communications Management, L.P.,which in turn is the general partner of Braemar Energy Ventures, L.P. William D.Lese, a member ofour board ofdirectors, is a managing member ofand a memberof the investment committee of Braemar Partners, LLC and shares voting anddispositive power over these shares with the other members of the investmentcommittee. Mr. Lese disclaims beneficial ownership ofthese shares except to theextent ofhis pecuniary interest therein.

(17) Consists of 611,739 shares of common stock held by Mr. Atkins, who served

on our board ofdirectorsfrom June 2005 through April 2007, and is currently an

employee of ours...

(18) Consists of 44,206 shares of common stock owned by William Hart, amember ofour Strategic Advisory Board...

28. The Secondary Offering prospectus, incorporated by reference in the Company's

other recent SEC filings including the Company's interim reports filed pursuant to Form 10-Q and

its annual report filed pursuant to Form 10-K, state, in part, as follows:

WHERE YOU CAN FIND MORE INFORMATION

We are subject to the reporting requirements of the Securities Exchange Act of1934, as amended , and are required to file annual, quarterly and current reports,proxy statements and other information with the SEC. You may read and copy thesereports, proxy statements and other information at the SEC's public referencefacilities at 100 F Street, N.E., Room 1580, Washington , D.C. 20549 . You canrequest copies of these documents by writing to the SEC and paying a fee for thecopying cost . Please call the SEC at 1-800-SEC-0330 for more information about theoperation of the public reference facilities . SEC filings are also available at the SEC'sweb site at http://www. sec.gov .

29. Accordingly, the Company's third quarter Form 10-Q, filed with the SEC less than

two weeks before the Offering on November 5, 2007 and signed and certified by defendants Healy

and Isaacson, was clearly among those SEC filings incorporated therein. In addition to many ofthe

same materially false and misleading statements as were contained in the Secondary Offering

19


prospectus, the 3Q:07 Form 10-Q also described EnerNOC's Operations and Basis ofPresentation,

in part, as follows:

1. Description of Business and Basis of Presentation

Basis of Consolidation

The unaudited condensed consolidated financial statements ofthe Company includethe accounts of its wholly-owned subsidiaries and have been prepared in conformitywith accounting principles generally accepted in the United States (GAAP).Intercompany transactions and balances are eliminated upon consolidation. In theopinion of the Company's management, the unaudited condensed consolidatedfinancial statements include all adjustments, consisting only of normal recurringadjustments, necessary for a fair presentation of the results of operations for thisperiod.

The accompanying unaudited condensed consolidatedfinancial statements

should be read in conjunction with the audited consolidatedfinancial statements

for the year ended December 31, 2006 and the footnotes thereto included in the

Company's registration statement on Form S-1, as filed with the Securities and

Exchange Commission (SEC) on October 29, 2007.

30. The 3Q:07 Form 10-Q also reported the Company's purported Controls and

Procedures in a manner which was reasonably designed to condition investors to believe that a

proper due diligence investigation into the Company had already been conducted and that EnerNOC

maintained at least the minimum controls and procedures necessary to operate the Company in a

reasonably safe and efficient manner. As evidence ofthis, the 3Q:07 Form 10-Q also stated, in part,

the following:

Item 4T. Controls and Procedures

Evaluation of Disclosure Controls and Procedures

Our management, with the participation of our chief executive officer and chieffinancial officer, evaluated the effectiveness of our disclosure controls andprocedures as of September 30, 2007. The term "disclosure controls and procedures,"as defined in Rules 13a-15(e) and 15d-15(e) under the Securities Exchange Act of1934, as amended, or the Exchange Act, means controls and other procedures of acompany that are designed to ensure that information required to be disclosed by a

20


company in the reports that it files or submits under the Exchange Act is recorded,processed, summarized and reported, within the time periods specified in the SEC'srules and forms. Disclosure controls and procedures include, without limitation,controls and procedures designed to ensure that information required to be disclosedby a company in the reports that it files or submits under the Exchange Act isaccumulated and communicated to the company's management, including itsprincipal executive and principal financial officers as appropriate to allow timelydecisions regarding required disclosure.... Based on the evaluation of our disclosurecontrols and procedures as of September 30, 2007, our chief executive officer andchief financial officer concluded that, as of such date, our disclosure controls andprocedures were effective at the reasonable assurance level.

Internal Control over Financial Reporting

No change in our internal control over financial reporting (as defined in Rules 13a-15(f) and 15d-15(f) under the Exchange Act) occurred during the fiscal quarter endedSeptember 30, 2007, which has materially affected, or is reasonably likely tomaterially affect, our internal control over financial reporting.

31. The 3Q:07 Form 10-Q also contained Certifications by defendants Healy and

Isaacson that attested to the purported transparency and accuracy of these reports. These

Certifications stated, in part, the following:

CERTIFICATIONS

I have reviewed this quarterly report on Form 10-Q of EnerNOC, Inc.;

2. Based on my knowledge, this report does not contain any untrue statement ofa material fact or omit to state a material fact necessary to make the statements made,in light of the circumstances under which such statements were made, not misleadingwith respect to the period covered by this report;

3. Based on my knowledge, the financial statements, and other financialinformation included in this report, fairly present in all material respects the financialcondition, results of operations and cash flows of the registrant as of, and for, theperiods presented in this report;

4. The registrant's other certifying officer and I are responsible for establishingand maintaining disclosure controls and procedures (as defined in Exchange ActRules 13a-15(e) and 15d-15(e)) for the registrant and have:

a) Designed such disclosure controls and procedures , or caused suchdisclosure controls and procedures to be designed under our supervision , to ensure

21


that material information relating to the registrant, including its consolidatedsubsidiaries, is made known to us by others within those entities, particularly duringthe period in which this report is being prepared;

b) Reserved;

c) Evaluated the effectiveness ofthe registrant's disclosure controls andprocedures and presented in this report our conclusions about the effectiveness of thedisclosure controls and procedures, as of the end ofthe period covered by this reportbased on such evaluation; and

d) Disclosed in this report any change in the registrant's internal controlover financial reporting that occurred during the registrant's most recent fiscalquarter (the registrant's fourth fiscal quarter in the case of an annual report) that hasmaterially affected, or is reasonably likely to materially affect, the registrant'sinternal control over financial reporting; and

5. The registrant's other certifying officer and I have disclosed, based on ourmost recent evaluation of internal control over financial reporting, to the registrant'sauditors and the audit committee of registrant's board of directors (or personsperforming the equivalent functions):

a) All significant deficiencies and material weaknesses in the design oroperation of internal control over financial reporting which are reasonably likely toadversely affect the registrant's ability to record, process, summarize and reportfinancial information; and

b) Any fraud, whether or not material, that involves management orother employees who have a significant role in the registrant's internal control overfinancial reporting.

Date: November 5, 2007

By: /s/ TIMOTHY G. HEALYTimothy G. HealyChief Executive Officer(principal executive officer)


By:/s/ NEAL C. ISAACSONNeal C. IsaacsonChief Financial Officer(principal financial and accounting officer)

22

In connection with the Quarterly Report on Form 10-Q of EnerNOC, Inc. (the"Company"), for the quarter ended September 30, 2007, as filed with the Securitiesand Exchange Commission on the date hereof (the "Report"), the undersigned,Timothy G. Healy, Chief Executive Officer of the Company, does hereby certify,pursuant to Section 1350 of Chapter 63 of Title 18, United States Code, that:

(1) The Report fully complies with the requirements of Section 13(a) or 15(d) ofthe Securities Exchange Act of 1934; and

(2) The information contained in the Report fairly presents , in all materialrespects, the financial condition and results of operations of the Company.


By: /s/ TIMOTHY G. HEALYTimothy G. HealyChief Executive Officer

CERTIFICATION PURSUANT TO 18 U.S.C. SECTION 1350 , AS ADOPTEDPURSUANT TO SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002

In connection with the Quarterly Report on Form 10-Q of EnerNOC, Inc. (the"Company"), for the quarter ended September 30, 2007, as filed with the Securitiesand Exchange Commission on the date hereof (the "Report"), the undersigned, NealC. Isaacson , Chief Financial Officer of the Company, does hereby certify, pursuantto Section 1350 of Chapter 63 of Title 18, United States Code, that:

(1) The Report fully complies with the requirements of section 13(a) or 15(d) ofthe Securities Exchange Act of 1934; and

(2) The information contained in the Report fairly presents , in all materialrespects, the financial condition and results of operations of the Company.


By: /s/ NEAL C. ISAACSONNeal C. IsaacsonChief Financial Officer

23


32. As evidence of the purported success of the Company's Secondary Offering, on

November 28, 2007, defendants published a release that announced the closing of the Secondary

Offering, in part, as follows:

EnerNOC, Inc. Announces Closing of Follow-on Offering

BOSTON--(BUSINESS WIRE)--EnerNOC, Inc. (NASDAQ: ENOC - News) today

announced the closing, on November 19, 2007, of its follow-on public offering of

2,500,000 shares of its common stock at a price of $43.00 per share. Of the

2,500,000 shares, EnerNOC sold 500,000 shares and selling stockholders sold

2,000,000 shares. The net proceeds to EnerNOC, before expenses, are approximately

$20.5 million.

The underwriting syndicate for the offering was led by Credit Suisse Securities

(USA) LLC. Morgan Stanley & Co . Incorporated served as Joint-Lead Manager and

the other co-managing underwriters were Canaccord Adams Inc., Jefferies &

Company, Inc., and Pacific Growth Equities, LLC.

A registration statement has been filed with, and declared effective by, the Securitiesand Exchange Commission. A copy of the final prospectus related to the offeringmay be obtained from Credit Suisse Securities (USA) LLC's Prospectus Department,One Madison Avenue, New York, NY 10010, by calling toll-free 800-221-1037, orby faxing requests to 212-325-8057.

33. As further evidence ofthe purported success ofthe Secondary Offering, days after its

close, on November 30, 2007, the Associated Press reported that "EnerNOC Surges Amid Bullish

Outlook," and reported, in part, the following:

EnerNOC Shares Jump More Than 5 Percent After Analyst Issues "Buy"Rating With $55 Target

NEW YORK (AP) -- Shares ofEnerNOC Inc. surged more than 4percent Fridayafter an analyst recommended buying the stock because he believes demandfor thesix-year-old energy technology company's products will continue to grow.

The Boston-based company, which went public earlier this year, operates a system tomonitor companies' electricity use and adjust it during times of high demand.Utilities pay it for helping control the flow of power along their aging and oftenovertaxed electric grid. The company has more than 900 megawatts undermanagement.

24


In a note to investors, American Technology Research analyst Brad Manuilowbegan covering the company with a "Buy" rating and a target price of $55 pershare . That goal represents a 25 percent increase over Thursday's closing price.

Manuilow said " economic and structural challenges in the electricity marketshould create long-term growth opportunitiesfor EnerNOC with utilities and gridoperators." He also said the company is poised to benefit from government pressurefor "clean" energy and should be able to generate financial results above existingWall Street expectations.

EnerNOC shares rose $1.90, or 4.3 percent, to $45.77 Friday.

34. In December 2007 and January 2008, analysts also issued very positive guidance and

advised their clients and other shareholders to purchase shares of EnerNOC, in part, as follows:

RECENT UPGRADES & DOWNGRADES HISTORY

Date Research Firm Action From To

16-Jan-JMP Securities Initiated n/a Mkt Outperform

08

10-Jan- Pacific GrowthUpgrade Neutral Buy

08 Equities

5-Dec-07 Jefferies & Co Initiated n/a Buy

35. What investors did not and could not know at the time ofthe Secondary Offering was

that undisclosed negative conditions were already impacting, and foreseeably would continue to

adversely impact, the Company, in part, as follows:

(a) At the time of the Secondary Offering, the Company was not operating

according to plan, and defendants omitted to disclose the true impaired condition ofEnerNOC at that

time;

25


(b) At the time of the Secondary Offering, the Company' s expenses and

compensation costs were already running above plan, such that defendants already knew the

Company was experiencing greater than disclosed losses, and secretly radically diminished margins;

(c) At the time of the Secondary Offering, the Company was already

experiencing a disastrous fourth quarter that foreseeably would result in disappointing fourth quarter

and year end 2007 results;

(d) At the time ofthe Secondary Offering, EnerNOC's control deficiencies were

much more severe than revealed, and the Company did not even maintain the most minimum

standards of good Corporate Governance or controls and procedures, as is required by the SEC and

the Company's own internal guidelines and standards of business conduct; and

(e) At the time of the November Secondary Offering, defendants had not

conducted an adequate due diligence investigation into EnerNOC, which would have revealed many

of these issues, and would most likely have prevented the sale of this Company to shareholders

through the public equity markets at that time, or at the inflated price at which these shares were

originally sold.

36. However, rather than disclose the true operational and financial condition of the

Company, in connection with the Secondary Offering, Company Insiders - - including certain of the

defendants named hererin - - sold material amounts of the EnerNOC shares they owned or

controlled, in part, as follows:

26


INSIDER TRANSACTIONS REPORTED BY YAHOO ! FINANCE

Date Insider Shares Type Value

12-Feb-08 DIXON GREGG 8,900 Direct $284,000Office

19-Nov-07 FOUNDATION CAPITAL 665,000 Indirect $27,199,000MGMNT CO IV LLCBeneficial Owner (10% ormore)

19-Nov-07 GROSSER ADAM 665,000 Indirect $27,199,000Director

19-Nov-07 ELMORE WILLIAM B 665,000 Indirect $27,199,000Beneficial Owner (10% ormore)

19-Nov-07 HEALY TIMOTHY G 64,352 Direct $2,631,996Officer

19-Nov-07 BREWSTER DAVID B 18,125 Indirect $741,000Officer

19-Nov-07 BREWSTER DAVID B 122,500 Direct $5,010,250Officer

19-Nov-07 SICK TERRENCE E 20,000 Direct $818,000Officer

19-Nov-07 DIXON GREGG 20,000 Direct $818,000Officer

19-Nov-07 ISAACSON NEAL C 25,000 Direct $1,022,500Officer

19-Nov-07 SAMUELS DA M 20,000 Direct $818,000Officer

19-Nov-07 LESE WILLIAM D 459,563 Indirect $18,796,000Director

THE TRUE FINANCIAL AND OPERATIONAL CONDITION OFENERNOC IS BELATEDLY DISCLOSED

37. On February 27, 2008, over 3.14 million shares of EnerNOC traded - more shares

than were even sold in the Secondary Offering - and the stock plummeted, falling over 3 5%, or over

$9.00 per share, after defendants revealed that results for the fourth quarter and full year 2007 were

well below plan. At that time, defendants revealed that, for the fourth quarter of 2007, the period

27


which ended less than 4 weeks following the close of the Secondary Offering on December 31,

2007, the Company would report a loss of $0.48 per share - a full $0.18 lower than consensus

estimates of a loss of $0.30 per share. This loss was revealed after it was disclosed that expenses

and costs related to the compensation paid to defendants and other insiders at the Company had

resulted in a huge loss.

38. Immediately thereafter, the AssociatedPress published a report which stated, in part,

the following:

EnerNOC Tumbles on Wider 4Q Loss

EnerNOC Shares Tumble After Company Reports Much Wider 4th-Qtr Loss onSurging Costs

BOSTON (AP) -- Shares ofEnerNOCInc. tumbled Wednesday after the companyreported a much greaterfourth-quarter loss than Wall Street had expected.

The company, which makes products that allow utilities and electric grid operators toregulate supply and demand, lost $9 million, or 48 cents per share, last quarter. Thatcompares with a loss of $4.1 million, or $1.07 per share in the year-ago period, whenthe company had almost 80 percent fewer outstanding shares.

Analysts had forecast a much smaller loss of 30 cents per share, on average,according to a Thomson Financial survey.

[CJosts outpaced the sharp revenue growth as the company added moreemployees for its Texas and Ontario markets and posted higher stock-compensation expenses.

For the full year, EnerNOC's loss widened to $23.6 million, or $1.80 per share,

from $5.8 million, or $1.60 per share.

39. Following the publication of defendants' belated disclosures, on February 27, 2008,

shares ofEnerNOC immediately declined over 3 5% -falling over $9.00 per share before closing that

trading day at $16.31 per share.

28


40. This sudden and dramatic decline in the price of Company shares resulted in a

significant loss and damages to investors. As further evidence of this, also the same day, February

27, 2008, on the Yahoo.com message boards, individual anonymous authors posted notes that

attested to the harm that they had suffered as a result of defendants' publication of the materially

false and misleading registration statement and prospectus, stating, in part, as follows:

//

//

//

//

IM RUINED!!!!! 27-Feb-08 03:41 pm

MY BROKER JUST CALLED.. .MY ACCOUNT IS CLOSED AND I OWE MY BROKER25K....WHAT THE @#$% HAPPENNED HERE???DIS THEY RELEASE BAD EARNINGS ORSOMETHING...???

MY WIFE IS HYSTERICAL.. THAT WAS OUR KIDS COLLEGE MONEY! ! CAN WE SUETHE COMPANY?

http://messages.finance.yahoo. com/Stocks_%28A_to_Z%29/Stocks_E/threadview?m=tm&bn=5 163 8&tid=193 &mid=193 &tof=1 &frt=2

Ruined 27-Feb-08 02:42 pm

The worst decision I ever made. Bought at 45, doubled at 35...thinking this is the wave of thefuture... .Like a fool put 50% of my portfolio in this one and was expecting huge results. I amwondering if we have seen the bottom at 18 or should I eat my losses and sell them all. This hasbeen the hardest day of my life. All my savings....

http ://messages . finance . yahoo . com/Stocks_%28A_to_Z%29/Stocks_E/threadview?m=tm&bn=5163 8&tid=177&mid=177&tof=2&frt=2

CAUSATION AND ECONOMIC LOSS

29


41. In connection with the November, 2007 EnerNOC Secondary Offering, defendants

published a materially false and misleading registration statement and filed with the SEC and made

available to shareholders a materially false and misleading prospectus. These filings were essential

in allowing defendants to complete the Secondary Offering of 2.875 million EnerNOC shares and

raise at least $123.625 million.

42. On February 27, 2007, however, when defendants' prior misrepresentations and

illegal and improper conduct came to be revealed and were apparent to investors, shares of

EnerNOC declined precipitously - evidence that the prior artificial inflation in the price of Company

shares was eradicated. As a result of their purchases of EnerNOC stock in connection with the

Secondary Offering, including those who purchased shares traceable to the Offering in the public

markets immediately thereafter, plaintiff and other members ofthe Class suffered economic losses,

i.e. damages, under the federal securities laws.

43. By improperly characterizing the Company's then present financial condition and

misrepresenting its prospects, defendants presented a misleading image of EnerNOC's business,

operations, and future growth prospects. Within the Secondary Offering prospectus and registration

statement, defendants repeatedly emphasized the ability of the Company to continue to execute its

business plan for growth and success, and reported expenses and gross profit margins within

expectations sponsored and/or endorsed by defendants. These claims caused and maintained the

artificial inflation in EnerNOC's stock at the time ofthe Secondary Offering, and thereafter until the

truth about the Company was ultimately revealed to investors.

44. It was only following defendants' belated disclosure on February 27, 2008 that

investors learned the truth about the Company and learned that defendants could not operate the

Company according to plan and that fourth quarter 2007 results were already adversely impacted

30


prior to the Offering; as a result of this revelation, shares of the Company collapsed. Defendants'

belated disclosures had an immediate, adverse impact on the price of EnerNOC shares.

45. These belated revelations also evidenced defendants' prior misrepresentation of

EnerNOC's business prospects via defendants' false statements. As investors and the market

ultimately learned, the Company's prior business prospects had been overstated as were the

Company's results of operations. As this adverse information became known to investors, the prior

artificial inflation was immediately eliminated from EnerNOC' s share price and shareholders were

damaged as a result of this related share price decline.

46. As a direct result ofinvestors learning the truth about the Company, on February 27,

2008, shares ofEnerNOC immediately declined over 35% on very heavy trading volume of over 4.1

million shares - falling over $9.00 per share before closing that trading day at $16.31 per share.

47. This dramatic share price decline eradicated much of the artificial inflation from

EnerNOC' share price, causing real economic loss to investors who purchased this stock in, or in

connection with, the EnerNOC Secondary Offering.

48. The decline in EnerNOC's stock price following defendants' belated disclosures was

a direct result of the nature and extent of defendants' misrepresentations and omissions in the

Secondary Offering prospectus becoming known to investors and to the market. The timing and

magnitude of EnerNOC 's stock price decline negates any inference that the losses suffered by

plaintiff and the other members of the Class were caused by changed market conditions,

macroeconomic or industry factors, or even Company-specific facts unrelated to defendants' illegal

and improper conduct. During the same period in which EnerNOC's share price fell over 35% as a

result of defendants' misrepresentations and omissions being revealed, the Standard & Poor's 500

securities index was relatively unchanged.

31


49. The economic loss, i.e. damages, suffered by plaintiff and other members ofthe Class

was a direct result of defendants' misrepresentations and omissions being revealed to investors, and

the subsequent significant decline in the value of the Company's shares was also the direct result of

defendants' prior misstatements and omissions being revealed. This is also evidenced, in part, by

the chart below:

Ell,-,,-: fla i

sr.

rxttrttT-F trl+ttt, 411

^wltJI rI

4

Leer iis Fib

CLASS ACTION ALLEGATIONS

50. This is a class action on behalf of all persons who purchased EnerNOC shares, or

traceable stock, pursuant to the November, 2007 registration statement and prospectus (the "Class"),

excluding defendants. Class members are so numerous that joinder of them all is impracticable.

51. Common questions oflaw and fact predominate and include: (i) whether defendants

violated the Securities Act; (ii) whether the EnerNOC Secondary Offering registration statement and

prospectus misrepresented material facts; and (iii) the extent of and appropriate measure of damages.

52. Plaintiffs claims are typical of those of the Class. Prosecution of individual actions

would create a risk ofinconsistent adjudications. Plaintiffwill adequately protect the interests of the

32


Class. A class action is superior to other available methods for the fair and efficient adjudication of

this controversy.

//

//

//CLAIM FOR RELIEF

For Violations of §11 of the Securities Act AgainstAll Defendants and §15 of the Securities Act Against the Individual Defendants

53. Plaintiff incorporates each and every allegation above as if stated herein.

54. The Individual Defendants each signed EnerNOC's Secondary Offering registration

statement and/or filed that prospectus with the SEC and distributed it to investors. The Underwriter

Defendants each permitted their names to be included on the cover of the prospectus as the

Underwriters.

55. On or about November 14, 2007, the defendants named in this Claim for Relief

completed a Secondary Offering of 2.875 million shares ofEnerNOC stock - including the 375,000

shares allotted to underwriters in an over-allotment option - at $43.00 per share, for total proceeds

of at least $123.625 million.

56. Each of the statements alleged herein relating to EnerNOC's prospects and financial

results made in the November, 2007 prospectus and registration statement were false or misleading

when issued . The true but concealed facts were that EnerNOC was not operating according to plan

at the time of the Secondary Offering, expenses were running well above guidance, and EnerNOC

was already severely and adversely affected by that time such that the Company was already

operating below guidance for 4Q and FY: 07. These omissions were a violation of SEC Regulation

33


S-K, Item 303(a), which requires that trends which will have a material effect on a registrant's results

be disclosed.

57. All defendants named in this Claim for Relief, with the exception of EnerNOC, the

issuer (whose liability for the misstatements is absolute), owed to the purchasers of the stock,

including plaintiff and the Class, the duty to make a reasonable and diligent investigation of the

statements contained in the registration statement and prospectus at the time it became effective, to

assure that those statements were true and that there was no omission to state material facts required

to be stated in order to make the statements contained therein not misleading.

58. The officers and directors of EnerNOC who were signatories to the registration

statement and the Underwriter Defendants were responsible for the preparation ofthe prospectus and

the registration statement. By virtue of the material misrepresentations contained in the registration

statement and prospectus, plaintiff and the Class have been damaged.

59. By reason of the conduct herein alleged, each defendant named in this Claim for

Relief violated § 11 of the Securities Act. The Individual Defendants, by reason of their stock

ownership and positions with EnerNOC, were controlling persons ofEnerNOC and are liable under

§ 15 of the Securities Act.

PRAYER

WHEREFORE, plaintiff prays forjudgment as follows: declaring this action to be a proper

class action; awarding damages, including interest; and such other relief as the Court may deem

proper.

JURY TRIAL DEMANDED

Plaintiff hereby demands a trial by jury.

Dated: March 6, 2008

34

Matthew F. Pawa, BBO 652933Benjamin A. Krass, BBO # 659643

Law Offices of Matthew F. Pawa, P.C.

1280 Centre Street, Suite 230

Newton Centre, MA 02459Telephone: (617) 641-9550Facsimile: (617) 641-9551Local Counsel for Plaintiffs & the Class

Lewis Kahn

KAHN GAUTHIER SWICK, LLC650 Poydras Street , Suite 2150New Orleans , LA 70130Telephone : (504) 455-1400Facsimile: (504) 455-1498

-and-

Eric J. O'BellLAW OFFICES OF ERIC J. O'BELL, LLC3500 North Hullen StreetMetairie , Louisiana 70002Telephone: (504) 456-8677Facsimile (504) 456-8624

Attorneys for Plaintiff & the Class

3S

1

Case 1-08-cv-10378-RVVZ Document 1 Filed 03/06/2008 of 37

CERTIFICATION rM SUPPORT OF APPLICATION FOR LEr4D PLAINTIFF

Galen E. Calvert declares , as to the claims asserted under the fzderil securities law, that.

1. Plaintiff has fully reviewed the ':facts of the complaint(s) riled in this 'action allegtig

violatiotzs of the securities laws and plaintiff is willing to serve as a lead plaintiff in this case and all Ott r " €

related cases that may be consolidated with it.

2. plaintiff did not purchase securities of Ener-NOC, i nc., at the direction of counsel or

orderw participate in aprivate action under the federal securities laws.

3. Plaintiff is willing to serve as u representative 'party on +ehalf . of a clays, includi>Ag

providirt, testimony al deposition and trial , ifnecessary,

4. During the Class Period . plaimiff has executed transactions i ri the se urities of EnerNO+u i

lnc., as fellows . See Attached Schedule.

5 In the last three years, plaintiff has not sought to serve as a representative = party an 1 c1l1t

oft class in at action fled under the federal securities laws, except as indic ted-herein.

6. Plaintiff will not accept payment for serviti; as a lead plaintiff beyond its rn rata share pI

any recovery. except such reasonable costs and expenses (including lost wages) directly . relating to ti e

representation ofthe. Class as ordered or approved by the Court. -

declare under penalty of perjury that the foregoing is true and . correct to the best of rely.

kaowler e, i for nation and belief.

Dated: 0315!U$

Plaintiff

.^ r

f Case 1:08- v-10378- Document 1 Filed 03/06/2008 of 37

s I

Name ofptaintiff; Galan CaiVeltSchedule of alairtiffs Transaction(s) in

EnerNDC. Inc.

Purchase{say; "

Date Units Price

SOO(&):•

• s l"^ste• s

" i

Units Prke

y

:i

1•

• at r,

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I

Case 1-08-cv-10378-RWZ Document 1-2 Filed 03/06/2008 Page 1 of 2®JS 44 (Rev . 12/07) CIVIL COVER SHEETThe JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service ofpleadings or other papers as required by law, except as provided

by local rules of court . This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk ofCourt for the purpose of initiating

the civil docket sheet. (SEE INSTRUCTIONS ON THE REVERSE OF THE FORM.)

1. (a) PLAINTIFFS

GALEN CALVERT

(b) County of Residence of First Listed Plaintiff Flathead County, MT

(EXCEPT IN U.S . PLAINTIFF CASES)

Lewis S. Kahn Kahn Gauthier Swick, LLC650 Poydras Street, Suite 2150New 0r1e4nsr LA 70130 (504) 455-1400

C Attorney s (Firm Name , Address, and Telephone Number)

Matthew F . Pawa , Law Offices of Matthew F. Pawa , P.C., f280

Centre St. , Suite 230 , Newton Centre , MA 02459 (617 ) 641-9550

DEFENDANTS

ENERNOC, INC.

County of Residence of First Listed Defendant Suffolk County, MA

(IN U.S. PLAINTIFF CASES ONLY)

NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE

LAND INVOLVED.

Attorneys ( If Known)

II. BASIS OF JURISDICTION (Place an "X" in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES(Place an "X" in One Box for Plaintiff

O 1 U.S. Government Q9 3 Federal Question

Plaintiff (U.S. Government Not a Party)

0 2 U.S. Government 0 4 Diversity

Defendant(Indicate Citizenship of Parties in Item III)

(For Diversity Cases Only) and One Box for Defendant)

PTF DEF PTF DEF

Citizen of This State 0 1 0 1 Incorporated or Principal Place 0 4 0 4

of Business In This State

Citizen of Another State 0 2 0 2 Incorporated and Principal Place 0 5 0 5

of Business In Another State

Citizen or Subject of a 0 3 0 3 Foreign Nation 0 6 0 6

O 110 Insurance

0 120 Marine

0 130 Miller Act

0 140 Negotiable Instrument

0 150 Recovery of Overpayment

& Enforcement ofJudgmen

0 151 Medicare Act

0 152 Recovery of Defaulted

Student Loans(Excl. Veterans)

0 153 Recovery of Overpayment

of Veteran' s Benefits

0 160 Stockholders' Suits

0 190 Other Contract

O 195 Contract Product Liability

f1 196 Franchise

PERSONAL INJURY

O 310 Airplane

O 315 Airplane Product

Liability

0 320 Assault, Libel &Slander

0 330 Federal Employers

Liability

0 340 Marine

0 345 Marine Product

Liability

0 350 Motor Vehicle

0 355 Motor Vehicle

Product Liability

0 360 Other Personal

TS

PERSONAL INJURY

0 362 Personal Injury -

Med. Malpractice

0 365 Personal Injury -

Product Liability

0 368 Asbestos Personal

Injury Product

Liability

PERSONAL PROPERTY

0 370 Other Fraud

0 371 Truth in Lending

0 380 Other PersonalProperty Damage

0 385 Property Damage

Product Liability

0 210 Land Condemnation

O 220 Foreclosure

O 230 Rent Lease & Ejectment

0 240 Torts to Land

0 245 Tort Product Liability

0 290 All Other Real Property

441 Voting

442 Employment

443 Housing/Accommodations

444 Welfare

445 Amer. w/Disabilities -

Employment

446 Amer. w/Disabilities -

Other

440 Other Civil Rights

510 Motions to Vacate

Sentence

Habeas Corpus:530 General

535 Death Penalty

540 Mandamus & Other

550 Civil Rights

555 Prison Condition

610 Agriculture

620 Other Food & Drug

625 Drug Related Seizure

of Property 21 USC 881

630 Liquor Laws640 R.R. & Truck

650 Airline Regs.

660 OccupationalSafety/Health

690 Other

Act

720 Labor/Mgmt. Relations

730 Labor/Mgmt.Reporting

& Disclosure Act

740 Railway Labor Act

790 Other Labor Litigation

791 Empl. Ret. Inc.

Security Act

463 Habeas Corpus -

Alien Detainee465 Other Immigration

Actions

422 Appeal 28 USC 158

423 Withdrawal

28 USC 157

820 Copyrights

830 Patent840 Trademark

861 HIA(1395ff)

862 Black Lung (923)

863 DIWC/DIWW (405(g))

864 SSID Title XVI

870 Taxes (U.S. Plaintiff

or Defendant)

871 IRS-Third Party

26 USC 7609

0 400 State Reapportionment

0 410 Antitrust

0 430 Banks and Banking

O 450 Commerce

0 460 Deportation

0 470 Racketeer Influenced and

Corrupt Organizations

0 480 Consumer Credit

0 490 Cable/Sat TV

0 810 Selective Service

I!9 850 Securities/Commodities/

Exchange

0 875 Customer Challenge

12 USC 3410

0 890 Other Statutory Actions

0 891 Agricultural Acts

O 892 Economic Stabilization Act

0 893 Environmental Matters

0 894 Energy Allocation Act

0 895 Freedom of Information

Act

O 900Appeal of Fee Determination

Under Equal Access

to Justice

0 950 Constitutionality of

State Statutes

V. ORIGIN (Place an "X" in One Box Only) ApPeaI to District

R 1 Original O 2 Removed from Q 3 Remanded from O 4 Reinstated or Q 5 Transferred from 0 6 Multidistrict Q 7 Judge from

Proceeding State Court Appellate Court Reopened another district Litigation Magistrate( specify) Judgment

C4 1 -Ut tatute n w t h o are fill D oI f ' a ys`t,tpti sta tutes u ss diversity):c°4, ^Y $^c and 9tfoo 0e(,11Ca^^Z, and Tgo' he ^'ecunfl st k

VI. CAUSE OF ACTION Brief description of cause:Violations of tederal securities laws o

VII. REQUESTED IN 21 CHECK IF THIS IS A CLASS ACTION DEMAND $ CHECK YES only if demanded in complaint:

COMPLAINT: UNDER F.R.C.P. 23 JURY DEMAND: 2( Yes 0 No

VIII. RELATED CASE(S)(See instructions):

IF ANY JUDGE H on. Rya W. Zobel DOCKET NUMBER 1:08-cv-10361-RWZ

DATE SIGNATURE OF ATTORNEY OF RECORD

FOR OFFICE USE ONLY

RECEIPT # AMOUNT APPLYING IFP JUDGE MAG. JUDGE

Case 1-08-cv-10378-RWZ Document 1-2 Filed 03/06/2008 Page 2 of 2

JS 44 Reverse (Rev. 12/07)

INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44

Authority For Civil Cover Sheet

The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as requiredby law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the useofthe Clerk ofCourt for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk ofCourt for each civil complaintfiled. The attorney filing a case should complete the form as follows:

1. (a) Plaintiffs -Defendants . Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use onlythe full name or standard abbreviations. Ifthe plaintiff or defendant is an official within a government agency, identify first the agency and then the official, givingboth name and title.

(b) County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name ofthe county where the first listed plaintiff resides at the timeof filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land condemnation cases,the county of residence of the "defendant" is the location of the tract of land involved.)

(c) Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, notingin this section "(see attachment)".

II. Jurisdiction . The basis ofjurisdiction is set forth under Rule 8(a), F.R.C.P., which requires that jurisdictions be shown in pleadings. Place an"X" in oneof the boxes. If there is more than one basis ofjurisdiction, precedence is given in the order shown below.

United States plaintiff. (1) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States are included here.

United States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an "X" in this box.

Federal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdiction arises under the Constitution of the United States, an amendment to theConstitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes precedence, and box1 or 2 should be marked.

Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 is checked, the citizenship of thedifferent parties must be checked. (See Section III below; federal question actions take precedence over diversity cases.)

III. Residence (citizenship ) of Principal Parties . This section ofthe JS 44 is to be completed if diversity ofcitizenship was indicated above. Mark this sectionfor each principal party.

IV. Nature of Suit . Place an "X" in the appropriate box. If the nature of suit cannot be determined, be sure the cause ofaction, in Section VI below, is sufficientto enable the deputy clerk or the statistical clerks in the Administrative Office to determine the nature of suit. If the cause fits more than one nature of suit, selectthe most definitive.

V. Origin. Place an "X" in one of the seven boxes.

Original Proceedings. (1) Cases which originate in the United States district courts.

Removed from State Court. (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 U.S.C., Section 1441. When the petitionfor removal is granted, check this box.

Remanded from Appellate Court. (3) Check this box for cases remanded to the district court for further action. Use the date of remand as the filing date.

Reinstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date.

Transferred from Another District. (5) For cases transferred under Title 28 U.S.C. Section 1404(a). Do not use this for within district transfers or multidistrictlitigation transfers.

Multidistrict Litigation. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C. Section 1407. When this boxis checked, do not check (5) above.

Appeal to District Judge from Magistrate Judgment. (7) Check this box for an appeal from a magistrate judge's decision.

VI. Cause ofAction. Report the civil statute directly related to the cause ofaction and give a briefdescription of the cause. Do not cite jurisdictional statutesunless diversity. Example: U.S. Civil Statute: 47 USC 553

Brief Description: nap orized reception of cable service

VII. Requested in Complaint . Class Action. Place an "X" in this box if you are filing a class action under Rule 23, F.R.Cv.P.

Demand. In this space enter the dollar amount (in thousands of dollars) being demanded or indicate other demand such as a preliminary injunction.

Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded.

VIII. Related Cases. This section of the JS 44 is used to reference related pending cases if any. If there are related pending cases, insert the docket numbersand the corresponding judge names for such cases.

Date and Attorney Signature . Date and sign the civil cover sheet.

Case 1-08-cv-10378-RWZ Document 1-3 Filed 03/06/2008 Page 1 of 1

UNITED STATES DISTRICT COURTDISTRICT OF MASSACHUSETTS

1. Title of case ( name of first party on each side only) Calvert v. EnerNOC, Inc.

2. Category in which the case belongs based upon the numbered nature of suit code listed on the civil cover sheet. (See local

rule 40.1(a)(1)).

1. 160 , 410, 470, 535, R.23, REGARDLESS OF NATURE OF SUIT.

II. 195, 196, 368 , 400, 440 , 441-446 , 540, 550 , 555, 625, 710, 720 , 730, *Also complete AO 120 or AO 121740, 790 , 791, 820*, 830*, 840*, 850, 890 , 892-894 , 895, 950 . for patent, trademark or copyright cases

III. 110 , 120, 130 , 140, 151 , 190, 210 , 230, 240 , 245, 290, 310,315, 320 , 330, 340 , 345, 350, 355, 360 , 362, 365 , 370, 371,380, 385 , 450, 891.

IV. 2209 4229 423 9 4309 460 9 4629 463 9 4659 480 9 4909 510 9 5309 6109620, 630 , 640, 650 , 660, 690 , 810, 861-865, 870 , 871, 875, 900.

V. 1509 1529 153.

3. Title and number, if any, of related cases . (See local rule 40 . 1(g)). If more than one prior related case has been filed in thisdistrict please indicate the title and number of the first filed case in this court.

Matt Gunther v. EnerNOC, Inc., et al, Docket number 1:08-cv-10361-RWZ

4. Has a prior action between the same parties and based on the same claim ever been filed in this court?

YES [] NO

5. Does the complaint in this case question the constitutionality of an act of congress affecting the public interest ? (See 28 USC§2403)

If so, is the U.S.A. or an officer, agent or employee of the U.S. a party?YES NO /

YES NO

6. Is this case required to be heard and determined by a district court of three judges pursuant to title 28 USC §2284?

YES NO

7. Do all of the parties in this action , excluding governmental agencies of the united states and the Commonwealth ofMassachusetts ("governmental agencies "), residing in Massachusetts reside in the same division ? - (See Local Rule 40.1(d)).

YES / NO

A. If yes , in which division do all of the non-governmental parties reside?

Eastern Division / Central Division11

Western Division

B. If no , in which division do the majority of the plaintiffs or the only parties , excluding governmental agencies,residing in Massachusetts reside?

Eastern Division 11 Central Division Western Division

8. If filing a Notice of Removal - are there any motions pending in the state court requiring the attention of this Court ? ( If yes,submit a separate sheet identifying the motions)

YES NO

(PLEASE TYPE OR PRINT)

ATTORNEY 'S NAME Lewis S. Kahn

ADDRESS 650 Poydras Street, Ste. 2150 New Orleans, LA 70130

TELEPHONE NO.504-455-1400

(CategoryForm-08.wpd -2/8/08)

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