EXHIBIT 14
JOINDER TO STOCK TRADING AGREEMENT
This Joinder to Stock Trading Agreement (this "Agreement") is dated as
of December 19, 2003 and is by and among Electric City Corp., a Delaware
corporation (the "Company"), Augustine Fund LP, an Illinois limited partnership
("Augustine"), Technology Transformation Venture Fund, LP, a Delaware limited
partnership ("TVF"), and Xxxx Xxxxxxx, an individual ("Xxxxxxx").
W I T N E S S E T H:
WHEREAS, the Company is a party to that certain Stock Trading Agreement
dated as of July 31, 2001, as amended (the "Existing Agreement") among the
Company and the holders of its outstanding Series A Convertible Preferred Stock;
and
WHEREAS, Xxxxxx Xxxxxxx Xxxx Xxxxxx Equity Funding, Inc. ("MSDW") and
Originators Investment Plan, L.P. ("OIP"), as "Sellers", and Augustine, TVF and
Xxxxxxx, as "Purchasers", are parties to that certain Securities Purchase
Agreement, dated as of December 19, 2003, whereby MSDW and OIP have agreed to
sell and Augustine, TVF and Xxxxxxx have agreed to purchase certain outstanding
shares of the Company's Series A Convertible Preferred Stock, certain shares of
the Company's Common Stock and certain warrants to purchase additional shares of
the Company's Common Stock; and
WHEREAS, Section 2.2 of the Existing Agreement imposes certain
limitations upon private sale by any "Party" thereunder of any shares of capital
stock of the Company and/or any securities exercisable or for or convertible
into shares of capital stock of the Company, including the requirement that any
transferee become a "Party" to the Existing Agreement, and accordingly, each of
Augustine, TVF and Xxxxxxx is willing to become a "Party" to the Existing
Agreement and to enter into this Agreement for such purpose, and the Company is
agreeable to the same;
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Definitions. All terms capitalized but not defined herein
shall have the meaning attributable to such terms in the Existing Agreement,
except where the context otherwise requires.
2. Joinder. Each of Augustine, TVF and Xxxxxxx hereby agrees with
the Company, for the benefit of all parties to the Existing Agreement, that from
and after date hereof each of Augustine, TVF and Xxxxxxx shall be a party to and
be bound by the Existing Agreement with respect to all of the securities being
acquired by Augustine, TVF and Xxxxxxx, respectively, from MSDW and OIP,
including any shares of Common Stock which may hereafter be acquired pursuant to
exercise of any of the warrants to purchase additional shares of the Company's
Common Stock being acquired and including any shares of the Company's Common
Stock which may hereafter be acquired pursuant to conversion of shares of Series
A Convertible Preferred Stock.
3. Representations. Each of Augustine, TVF and Xxxxxxx, severally
for itself or himself only, hereby represents and warrants to the Company that
this Agreement has been duly
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EXHIBIT 14
executed and delivered by Augustine, TVF or Xxxxxxx (as applicable) and
constitutes the valid and binding obligation of such party, enforceable against
such party in accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general equity
principles. Each of Augustine, TVF and Xxxxxxx hereby acknowledges that it or he
has received a copy of the Existing Agreement.
4. Miscellaneous.
(a) All terms, covenants, agreements, representations, warranties
and undertakings in this Agreement shall bind and inure to the benefit of the
respective successors and assigns of the parties hereto whether so expressed or
not.
(b) Changes in or additions to this Agreement may be made or
compliance with any term, covenant, agreement, condition or provision set forth
herein may be omitted or waived, only in accordance with the provisions of the
Existing Agreement.
(c) This Agreement shall be governed and construed in accordance
with the laws of the State of New York without giving effect to the conflict of
laws principles thereof.
(d) This Agreement may be executed in counterparts, each of which
shall together constitute one and the same instrument.
(e) The section and paragraph headings herein are for convenience
only and shall not effect the construction hereof.
(f) The invalidity or unenforceability of any provision hereof
shall in no way affect the validity or enforceability of any other provision.
[Balance of page intentionally left blank; signature pages follow.]
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IN WITNESS WHEREOF, the parties hereto have caused this Joinder To
Stock Trading Agreement to be executed as of the day and year first above
written.
ELECTRIC CITY CORP. TECHNOLOGY TRANSFORMATION
VENTURE FUND, LP
By:________________________________ By:_________________________________
Name:______________________________ Name:_______________________________
Title:_____________________________ Title:______________________________
AUGUSTINE FUND LP.
____________________________________
By:________________________________ Xxxx Xxxxxxx
Name:______________________________
Title:_____________________________
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