OPINION AND ORDER Plaintiff Alpha Capital Anstalt (“Plaintiff” or “Alpha Capital”) moves for summary judgment as to the liability of Defendant Real Goods Solar, Inc. (“RGS”) for breach of contract. (ECF Nos. 55-58.) RGS moves for summary judgment dismissing all of Plaintiff’s claims against RGS. (ECF Nos. 59-62.) Defendant Roth Capital Partners, LLC (“Roth Capital”) moves for summary judgment dismissing all of Plaintiff’s claims against Roth Capital. (ECF Nos. 63-64.) For the following reasons, the Court DENIES Plaintiff’s motion in its entirety, GRANTS RGS’s motion in part and DENIES it in part, and GRANTS Roth Capital’s motion in its entirety.RELEVANT FACTSThis action relates to an investment made by Alpha Capital in a public offering by RGS. Defendants are RGS and Roth Capital, which acted as placement agent for RGS in connection with the offering. (See Am. Compl., ECF No. 29,
12, 19.)On February 1, 2017, RGS entered into a Securities Purchase Agreement (the “SPA”), dated as of February 1, 2017, with fifteen institutional and accredited investors (the “First Offering”). (Pl. 56.1 Stmt., ECF No. 57,6; RGS Counter 56.1 Stmt., ECF No. 72,6.) Pursuant to the SPA, Alpha Capital invested approximately $1.1 million to purchase RGS Securities in the First Offering. (Pl. 56.1 Stmt.7; RGS Counter 56.1 Stmt.7.) On February 6, 2017, Alpha Capital, along with fourteen other institutional investors, closed on the purchase of units of RGS securities issued in the First Offering. (Pl. 56.1 Stmt.8; RGS Counter 56.1 Stmt.8.)The SPA contains certain provisions relevant to the pending motions, as follows:Section 4.13(a) [hereinafter referred to as the "90-Day Prohibition"] provides: “From the date hereof until 90 calendar days after the Closing Date, neither the Company [RGS] nor any Subsidiary shall issue, enter into any agreement to issue or announce the issuance or proposed issuance of any shares of Common Stock or Common Stock Equivalents.” (Hoffner Decl. Ex. C, ECF No. 56-3, at 26.)1Section 4.14 [hereinafter referred to as the "Equal Treatment Provision"] provides in relevant part:No consideration (including any modification of any Transaction Document) shall be offered or paid to any Person to amend or consent to a waiver or modification of any provision of the Transaction Documents unless the same consideration is also offered to all of the parties to such Transaction Documents….(Id. at 28.)Section 5.5 [which, as set forth below, includes both the "50.1 percent Requirement" and the "Disproportionate Impact Provisions"] provides in relevant part:No provision of this Agreement may be waived, modified, supplemented or amended except in a written instrument signed by the Company [RGS] and Purchasers which purchased (or prior to the Closing Date, agreed to purchase) at least 50.1 percent in interest of the Shares based on the initial Subscription Amounts hereunder [the "50.1 percent Requirement"], provided that if any amendment, modification or waiver disproportionately and adversely impacts a Purchaser (or group of Purchasers), the consent of such disproportionately impacted Purchaser (or group of Purchasers) shall also be required…. Any proposed amendment or waiver that disproportionately, materially and adversely affects the rights and obligations of any Purchaser relative to the comparable rights and obligations of the other Purchasers shall require the prior written consent of such adversely affected Purchaser. [the "Disproportionate Impact Provisions"]…(Id. at 29.)The securities purchased pursuant to the SPA as part of the First Offering included both shares of common stock and Series L Warrants. For example, Alpha Capital purchased 145,162 shares of common stock and 209,838 warrants. (Hoffner Decl. Ex. C, ECF No. 56-4, at 6.) The SPA defines “Shares” as “the shares of Common Stock issuable to each Purchaser pursuant to this Agreement.” (Hoffner Decl. Ex. C, ECF No. 56-3, at 4.) The SPA defines “Warrant Shares” as “the shares of Common Stock issuable upon exercise of the Warrants.” (Id. at 5.)On the morning of February 7, 2017, Roth Capital contacted RGS and advised that the day’s trading provided RGS with the opportunity to raise additional funds through a second offering in the form of an “Intraday trade” (the “Second Offering”). (Pl. 56.1 Stmt.13; RGS Counter 56.1 Stmt.13.) In order to proceed with the Second Offering, RGS needed to obtain waivers of the 90-Day Prohibition by complying with the 50.1 percent Requirement. (Pl. 56.1 Stmt.14; RGS Counter 56.1 Stmt.14; RGS 56.1 Stmt., ECF No. 62,43; Pl. Counter 56.1 Stmt., ECF No. 69,43.)Waiver letters were executed by seven investors and received by RGS on February 7 and 8, 2017.2 (Pl. 56.1 Stmt.23; RGS Counter 56.1 Stmt.23; Hoffner Decl. Ex. M, ECF No. 56-14; Hoffner Decl. Ex. Q, ECF No. 56-18, at 5.) These seven investors participated in the Second Offering, which closed on February 8, 2018.3 (Hoffner Decl. Ex. Q, at 12-13; Pl. 56.1 Stmt.36; RGS Counter 56.1 Stmt.36.) Alpha Capital never was offered the opportunity to participate in the Second Offering. (Pl. 56.1 Stmt.22; RGS Counter 56.1 Stmt.22.)PROCEDURAL HISTORYPlaintiff filed its Complaint in this case on February 16, 2017, principally asserting securities fraud claims in connection with the Second Offering. (Compl., ECF No. 1.) Plaintiff filed an Amended Complaint on May 12, 2017, asserting the following claims: Count I against RGS for breach of the SPA; Count II against RGS for rescission based upon breach of the SPA; Count III against Roth Capital for tortious interference with the SPA; and Count IV against Roth Capital for conspiring to induce breach of the SPA. (Am. Compl.
