EXHIBIT 4.5
TRADING AGREEMENT
THIS agreement (the "Agreement") is made as of this 17th day of
October, 2000 between Augustine Fund, L.P. (the "Stockholder") and Electric City
Corp., a Delaware corporation (hereinafter the "Corporation") (collectively, the
"Parties").
WHEREAS, Stockholder is the owner of shares of $0.0001 par value
common stock ("Stock") of the Corporation; and
WHEREAS, the Parties believe it is in the best interest of the
Corporation and its stockholders to avoid unusually high volumes of trading
activity and certain other trading activity in the Stock which could adversely
affect the market for the Stock;
NOW, THEREFORE, in consideration of the foregoing and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by each of the parties hereto, the parties do hereby agree as
follows:
Section 1. TRADING RESTRICTIONS
1.1 RESTRICTED TRADING. Shares owned by Stockholder sold in a publicly
traded transaction through a broker-dealer or with a market maker on any trading
day may only be sold in amounts not to exceed ten percent (10%) of the average
daily trading volume of the Stock of the Corporation over the prior ten (10)
trading days. Shares sold subject to this Section 1.1 must be executed during
regular trading hours and cannot be sold as an opening transaction on, or sold
in the last 1/2 hour of regular trading hours of, any trading day.
1.3 TRADING BLACKOUTS. Notwithstanding the provisions of Section 1.1
herein, the Company, at its sole option, may direct Stockholder to cease sales
of its shares of Stock on any trading day, with such directive limited to four
trading days each year, to commence upon the effective date of this Agreement.
1.4 CORPORATE ACTION. It is understood that corporate counsel for the
Corporation may withhold the requisite Rule 144 and other opinions and the
Corporation may withhold the requisite authorization for any transaction, but
only if such transaction violates the terms of this Agreement.
Section 2. PRIVATE SALES
2.1 PRIVATE SALES. Notwithstanding any provision to the contrary
herein, Stockholder, at any time, may engage in a private transaction to sell,
pledge, gift or margin Stock. Any private sale will be subject to Augustine
Fund, L.P. in the first right, and the Corporation in the second right, having a
right of first refusal to purchase any Stock from any other Participant (as
defined in Section 3.1 herein) pursuant to the same terms and conditions of such
private sale, but such right of first refusal shall not apply to any private
transactions entered into by Joseph Marino.
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2.2 PRIVATE PURCHASES BY THIRD PARTIES.Notwithstanding any provisions
to the contrary herein and in particular, Section 2.1 herein, in the event any
third party contacts the Corporation with a desire to purchase at least 100,000
shares of Stock in a single transaction, the Corporation shall provide the
Participants with a right of first refusal to sell their Stock to such third
party, subject to the terms of such offer. In the event that multiple
Participants desire to sell shares of Stock, then the offer to purchase shall be
allocated equally among the selling Participants. This provision shall not
preclude the Corporation's ability to raise additional capital at any time
subject to the company's need to issue equity which is subject to any required
board and shareholder approval.
Section 3. TERM AND TERMINATION.
3.1. TERM. This Agreement shall become effective as of the date that
all of the following stockholders (collectively, the "Participants") have
executed an Agreement with the Corporation, as attached, upon which date the
Corporation shall provide written notice to the Participants, named as follows:
Augustine Fund, L.P., Victor Conant, Joseph Marino, Kevin McEneely and Michael
Stelter. The Corporation expects to add additional participants to this
Agreement and will notify the Participants in writing of any additional
participants which are added to this Agreement in the future. This Agreement
shall terminate upon the third anniversary of the effective date of this
Agreement. Within thirty (30) days prior to termination of this Agreement, the
Corporation and the Participants shall meet to determine, in good faith, if this
Agreement should be extended in order to maintain the best interests of the
Corporation. The Corporation and the Participants agree to make best efforts to
extend this Agreement and to make any reasonable revisions (if any) to this
Agreement at the time.
Section 4. GENERAL PROVISIONS.
4.1. NOTICES. All notices required or permitted by this Agreement shall
be in writing and either delivered personally or by express courier service
(such as Federal Express) or by registered or certified mail, return receipt
requested, postage and registration fees prepaid, addressed: if to a Party, to
his or her respective address as appears on the transfer books kept by the
Trustees; if to either Trustee, to his or her last known business address;
notices delivered personally shall be deemed given on the date of personal
delivery or delivery by express courier service and notices sent by registered
or certified mail shall be deemed delivered on the third business day following
deposit of the notice in the United States mail.
4.2. BINDING EFFECT. This Agreement shall inure to the benefit of and
shall be binding upon the Parties hereto, their respective executors,
administrators, other personal representatives, successors and assigns.
4.3. COUNTERPARTS. This Agreement may be signed in any number of
counterparts each of which shall be deemed an original but all of which, taken
together, shall be and constitute one document.
4.4. DESCRIPTIVE HEADINGS. Headings of paragraphs and sections are for
convenience only and do not define, limit or construe the contents of the
sections to which they refer or pertain.
4.5. AMENDMENTS. This Agreement may not be amended, or any provisions
hereof waived, without the approval of both Parties.
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4 .6. GOVERNING LAW; SEVERABILITY. This Agreement will be governed by
and construed and enforced in accordance with the laws of the State of Illinois
without giving effect to any conflicts of laws provisions that might cause this
Agreement to be governed by or construed or enforced in accordance with the laws
of any other jurisdiction. Whenever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision shall (a) be reformed by the
Parties to reflect the intent of the Parties, or (b) if reformation is not
possible, be ineffective only to the extent of such prohibition or invalidity,
without invalidating the remainder of this Agreement.
4.7 ARBITRATION. The Parties agree that in the event of any and all
disagreements and controversies arising from this Agreement or any other
agreements between the Company and Stockholder, the breach, termination or
validity thereof or the past, present and future dealings between the Parties,
such disagreements and controversies shall be subject to binding arbitration as
arbitrated in accordance wit the then current Commercial Arbitration Rules of
the American Arbitration Association in Chicago, Illinois before one neutral
arbitrator. Either Party may apply to the arbitrator seeking injunctive relief
until the arbitration award is rendered or the controversy is otherwise
resolved. Without waiving any remedy under this Agreement, either Party may also
seek from any court having jurisdiction any interim or provisional relief that
is necessary to protect the rights or property of that Party, pending the
establishment of the arbitral tribunal (or pending the arbitral tribunal's
determination of the merits of the controversy). In the event of any such
disagreement or controversy, neither Party shall directly or indirectly reveal,
report, publish or disclose any information relating to such disagreement or
controversy to any person, firm or corporation not expressly authorized by the
other Party to receive such information or use such information or assist any
other person in doing so, except to comply with actual legal obligations of such
Party or unless such disclosure is directly related to an arbitration proceeding
as provided herein, including, but not limited to, the prosecution or defense of
any claim in such arbitration. The costs and expenses of the arbitration
(excluding attorneys' fees) shall be paid by the non-prevailing Party or as
determined by the arbitrator. This paragraph shall survive the termination of
this Agreement.
4.8 ENTIRE AGREEMENT. This Agreement sets forth the entire
understanding of the Parties with respect to the subject matter hereof,
supersedes all existing agreements between them concerning such subject matter
and supersedes any and all prior negotiations, correspondence and
understandings. This Agreement is the result of negotiation and accordingly, the
normal rules of construction to the effect that any ambiguity shall be resolved
against the drafting party shall not be employed in the interpretation of this
Agreement.
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Signature page follows]
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IN WITNESS WHEREOF, Stockholder and the Corporation have executed
this Agreement as of the day and year first written above.
STOCKHOLDER: ELECTRIC CITY CORP.
Augustine Fund LP
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[Name]
By: /s/ Thomas Duszynski By: /s/ Jeffrey Mistarz
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Its: General Partner Its: Chief Fiancial Officer & Treasurer
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