exv4w45



 



Exhibit 4.45


WARRANT



NEITHER THIS WARRANT NOR ANY SHARES OF COMMON STOCK ISSUABLE UPON THE EXERCISE
OF THIS WARRANT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR APPLICABLE STATE SECURITIES LAWS. SUCH SECURITIES MAY NOT BE
OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED UNLESS (A) SUBSEQUENTLY
REGISTERED PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, AND APPLICABLE STATE SECURITIES LAWS OR (B) THE HOLDER
HEREOF SHALL HAVE DELIVERED TO THE COMPANY A WRITTEN OPINION OF COUNSEL, IN
FORM, SUBSTANCE AND SCOPE REASONABLY ACCEPTABLE TO THE COMPANY, TO THE EFFECT
THAT THE SHARES TO BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED ARE BEING
OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED PURSUANT TO AN EXEMPTION FROM
SUCH REGISTRATION.


ELECTRIC CITY CORP.



WARRANT TO PURCHASE COMMON STOCK




	 	 	 
	Warrant No.: 39	 	
Number of Shares: 5,000
	Original Date of Issuance: April 2, 2003	 	 



Electric City Corp., a Delaware corporation (the “Company”), hereby certifies
that, for good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, Engle Group, the registered holder hereof or its
permitted assigns registered on the books of the Company (the “Holder”), is
entitled, subject to the terms and conditions set forth below, to purchase from
the Company upon surrender of this Warrant, at any time or times on or after
the date hereof, but not after 5:00 P.M. Eastern Standard Time on April 2, 2004
(the “Expiration Date”), Five Thousand (5,000) fully paid and nonassessable
shares (the “Warrant Shares”) of the Company’s common stock, par value $0.0001
per share (the “Common Stock”), at the exercise price per share equal to $1.00,
subject to adjustment as hereinafter provided (the “Warrant Exercise Price”).


     Section 1. Definitions. In addition to the capitalized terms defined
elsewhere herein, the following terms as used in this Warrant shall have the
following meanings:


               (i) “Business Day” means any day other than Saturday, Sunday or other day
on which commercial banks in the City of New York are authorized or required by
law to remain closed.




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               (ii) “Person” means an individual, a limited liability company, a
partnership, a joint venture, a corporation, a trust, an unincorporated
organization or a government or any department or agency thereof.



               (iii)
“Securities Act” means the Securities Act of 1933, as amended.



     Section 2. Exercise of Warrant.


          (a) Subject to the terms and conditions hereof, this Warrant may be
exercised by the Holder, in whole or in part, during normal business hours on
any Business Day on or after the date hereof and prior to 5:00 P.M. Eastern
Standard Time on the Expiration Date by (i) delivery of a duly executed written
notice, in the form of the subscription notice attached as Exhibit A hereto
(the “Exercise Notice”), of such Holder’s election to exercise this Warrant,
which notice shall specify the number of Warrant Shares to be purchased, (ii)
payment to the Company of an amount equal to the Warrant Exercise Price
multiplied by the number of Warrant Shares as to which this Warrant is being
exercised (the “Aggregate Exercise Price”) in cash or by certified check or
wire transfer of immediately available funds, and (iii) delivery to the Company
of this Warrant (or an indemnity and evidence with respect to this Warrant in
the case of its loss, theft, mutilation or destruction as provided in Section
11). In the event of any exercise of the rights represented by this Warrant in
compliance with this Section 2(a), the Company shall, on or before the tenth
(10th) Business Day following the date of its receipt of the Exercise Notice,
the Aggregate Exercise Price and this Warrant (or an indemnity and evidence
with respect to this Warrant in the case of its loss, theft, mutilation or
destruction as provided in Section 11) (the “Exercise Delivery Documents”),
deliver at the Company’s expense to the Holder, a certificate or certificates
for the Warrant Shares so purchased, in such denominations as may be requested
by Holder and registered in the name of Holder. Upon the Company’s receipt of
the Exercise Delivery Documents, the Holder shall be deemed for all corporate
purposes to have become the holder of record of the Warrant Shares with respect
to which this Warrant has been exercised, irrespective of the date of delivery
of certificates evidencing such Warrant Shares.



          (b) Unless the rights represented by this Warrant shall have expired or
shall have been fully exercised, the Company shall, as soon as practicable and
in no event later than ten (10) Business Days after any exercise and at its own
expense, issue a new Warrant identical in all respects to this Warrant
exercised, except it shall represent rights to purchase the number of Warrant
Shares purchasable immediately prior to such exercise under this Warrant
exercised, less the number of Warrant Shares with respect to which this Warrant
is exercised.



          (c) No fractional shares of Common Stock are to be issued upon the
exercise of this Warrant, but rather the number of shares of Common Stock
issued upon exercise of this Warrant shall be rounded up or down to the nearest
whole number.



     Section 3. Covenants. The Company hereby represents, covenants and agrees
as follows:


          (a) This Warrant is, and any Warrants issued in substitution for or
replacement of this Warrant will upon issuance be, duly authorized and validly
issued.



          (b) All Warrant Shares which may be issued upon the exercise of the rights




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represented by this Warrant will, upon issuance, be validly issued, fully
paid and nonassessable and free from all taxes, liens and charges with respect
to the issue thereof.


          (c) Prior to exercise of this Warrant, the Company shall secure the
listing of the Warrant Shares upon each national securities exchange or market,
if any, upon which shares of Common Stock are then listed (subject to official
notice of issuance upon exercise of this Warrant) and shall maintain such
listing of the Warrant Shares so long as any other shares of Common Stock shall
be so listed.



          (d) The Company has full power and authority to enter into this Warrant,
and to issue and deliver this Warrant and the Warrant Shares, and to incur and
perform fully the obligations provided herein, all of which have been duly
authorized by all necessary corporate action.



          (e) This Warrant has been duly executed and delivered and is the valid and
binding obligation of the Company enforceable in accordance with its terms.



     Section 4. Taxes. The Company shall pay any and all taxes, except income
taxes, which may be payable with respect to the issuance and delivery of
Warrant Shares upon exercise of this Warrant.


     Section 5. Holder Not Deemed a Stockholder. Except as otherwise
specifically provided herein, this Warrant shall not entitle Holder to vote or
receive dividends or any other rights of a stockholder of the Company,
including, without limitation, any right to vote, give or withhold consent to
any corporate action (whether a reorganization, issue of stock,
reclassification of stock, consolidation, merger, conveyance or otherwise),
receive notice of meetings or receive subscription rights.


     Section 6. Representations of Holder. The Holder, by the acceptance
hereof, represents and warrants that it (a) is acquiring this Warrant and the
Warrant Shares solely for its own account, for investment and not with a view
towards the distribution or resale thereof in violation of the Securities Act
or any applicable state securities laws, (b) has received such documents,
materials and information as Holder deems necessary or appropriate for
evaluation of the acquisition of the Warrant and the Warrant Shares, (c) is an
“accredited investor” as such term is defined in Rule 501 of Regulation D
promulgated under the Securities Act and has such knowledge and experience in
financial and business matters that it is capable of evaluating the merits and
risks of an investment in the Warrant and the Warrant Shares, (d) understands
that no U.S. federal, state or regulatory agency has recommended, approved or
endorsed, or passed upon the fairness or suitability of, an investment in the
Warrant or Warrant Shares or passed up on the accuracy or adequacy of the
information provided to Holder, and (e) recognizes that an investment in the
Warrant Shares involves a high degree of financial risk, can bear the economic
risk of losing its entire investment in the Warrant Shares and has sought, or
will seek, such accounting, legal and tax advice as it has considered, or will
consider, necessary to make an informed investment decision with respect to its
acquisition of this Warrant and Warrant Shares. If Holder cannot make any of
the foregoing representations at the time of exercising this Warrant because it
would be factually incorrect, Holder shall so notify the Company, and it shall
be a condition to Holder’s exercise of this Warrant that the Company receive
such other assurances as the Company considers reasonably necessary to assure
the Company that the issuance of the


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Warrant Shares upon exercise of this Warrant shall not violate the
Securities Act or any state securities laws.


     Section 7. Restriction on Transfer.


          (a) This Warrant and the rights granted to Holder are transferable, in
whole or in part, upon surrender of this Warrant, together with a properly
executed warrant power in the form of Exhibit B attached hereto; provided,
however, that any transfer or assignment shall be subject to the approval of
the Company, such approval not to be unreasonably withheld and the conditions
set forth in Section 7(b) below.



          (b) Holder represents and warrants that it understands that, except as set
forth in Section 8 below, the Company is under no obligation to register this
Warrant or the Warrant Shares under the Securities Act and that the Warrant and
Warrant Shares will be characterized as “restricted securities” under the
Securities Act because they are being acquired from the Company in a
transaction not involving a public offering. Holder also represents and
warrants that it understands that neither the Warrant nor the Warrant Shares
may be offered for sale, sold, assigned or transferred unless (a) subsequently
registered pursuant to an effective registration statement under the Securities
Act and applicable state securities laws or (b) Holder shall have delivered to
the Company a written opinion of counsel, in form, substance and scope
reasonably acceptable to the Company, to the effect that the securities to be
offered for sale, sold, assigned or transferred are being offered for sale,
sold, assigned or transferred pursuant to an exemption from such registration.



          (c) Unless upon their issuance such Warrant Shares are then registered
under the Securities Act pursuant to an effective registration statement, any
certificates representing Warrant Shares issued in accordance with this Warrant
shall bear a legend substantially in the following form:




	 
	THE SHARES OF COMMON STOCK OF ELECTRIC CITY CORP. (THE “COMPANY”)
REPRESENTED BY THIS CERTIFICATE (THE “SHARES”) HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND
MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED UNLESS (A)
SUBSEQUENTLY REGISTERED PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS OR (B) THE
HOLDER HEREOF SHALL HAVE DELIVERED TO THE COMPANY A WRITTEN OPINION OF
COUNSEL, IN FORM, SUBSTANCE AND SCOPE REASONABLY ACCEPTABLE TO THE
COMPANY, TO THE EFFECT THAT THE SHARES TO BE OFFERED FOR SALE, SOLD,
TRANSFERRED OR ASSIGNED ARE BEING OFFERED FOR SALE, SOLD, TRANSFERRED OR
ASSIGNED PURSUANT TO AN EXEMPTION FROM SUCH REGISTRATION



     Section 8. This Section has been left blank intentionally.


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     Section 9.


          (a) Adjustment of Warrant Exercise Price and Number of Warrant Shares upon
Subdivision or Combination of Company Stock. If the Company at any time after
the date of issuance of this Warrant subdivides (by any stock split or stock
dividend of its Common Stock) its outstanding shares of Common Stock into a
greater number of shares of Common Stock, the Warrant Exercise Price in effect
immediately prior to such subdivision will be proportionately reduced and the
number of Warrant Shares obtainable upon exercise of this Warrant will be
proportionately increased. If the Company at any time after the date of
issuance of this Warrant combines (by reverse stock split or otherwise) its
outstanding shares of Common Stock into a smaller number of shares of Common
Stock, the Warrant Exercise Price in effect immediately prior to such
combination will be proportionately increased and the number of Warrant Shares
obtainable upon exercise of this Warrant will be proportionately decreased. Any
adjustment under this Section 9(a) shall become effective at the close of
business on the date the subdivision or combination becomes effective.



          (b) Notices. Upon any adjustment of the Warrant Exercise Price or number
of issuable Warrant Shares pursuant to Section 9(a), the Company will give
written notice thereof to the Holder, setting forth in reasonable detail the
calculation of such adjustment.



     Section 10. Reorganization, Reclassification, Consolidation, Merger or
Sale. If at any time, as a result of:


               (i) a capital reorganization or reclassification (other than a subdivision
or combination provided for in Section 9), or



               (ii) a merger or consolidation of the Company with another corporation
(whether or not the Company is the surviving corporation) or sale of
substantially all of the Company’s stock, the Common Stock issuable upon
exercise of this Warrant shall be changed into or exchanged for the same or a
different number of shares of any class or classes of capital stock of the
Company or any other Person, or other securities convertible into such shares,
then, as a part of such reorganization, reclassification, merger, consolidation
or sale, appropriate adjustments shall be made in the terms of this Warrant (or
of any securities into which this Warrant is exercised or for which this
Warrant is exchanged), so that Holder shall thereafter be entitled to receive,
upon exercise of this Warrant or of such substitute securities, the kind and
amount of shares of stock, other securities, money and property which Holder
would have received at the time of such capital reorganization,
reclassification, merger, consolidation or sale, if Holder had exercised this
Warrant immediately prior to such capital reorganization, reclassification,
merger, consolidation or sale. This Warrant, including, without limitation, the
provisions of this Section 10 will be binding upon any entity succeeding to the
Company by merger, consolidation or acquisition of all or substantially all of
the Company’s assets. The provisions of this Section 10 shall similarly apply
to (x) successive capital reorganizations, reclassifications, mergers,
consolidations and sale and (y) the securities of any other Person that are at
the time receivable upon the exercise of this Warrant.




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     Section 11. Lost, Stolen, Mutilated or Destroyed Warrant. If this Warrant
is lost, stolen, mutilated or destroyed, the Company shall promptly, on receipt
of evidence reasonably satisfactory to the Company of the ownership of, and the
loss, theft, mutilation or destruction of, this Warrant, and an indemnity
reasonably satisfactory to the Company (or in the case of a mutilated Warrant,
the Warrant), issue in lieu thereof a new Warrant of like denomination and
tenor as this Warrant so lost, stolen, mutilated or destroyed.


     Section 12. Notice. Any notices, consents, waivers or other
communications required or permitted to be given under the terms of this
Warrant must be in writing and will be deemed to have been made upon receipt
when delivered personally, via pre-paid overnight courier or by certified mail,
postage pre-paid, return receipt requested. The addresses for such
communications shall be:


          If to the Company:




	 	Electric City Corp.

1280 Landmeier Road

Elk Grove Village, IL 60007

Attention: General Counsel



          If to the Holder:




	 	Engle Group

169 Garden Terrace Lane

Millers Creek, NC 28651-8688



or such other address as the Company or Holder, as applicable, may specify in
written notice given to the other party in accordance with this Section 12.


     Section 13. Amendments. This Warrant and any term hereof may be changed,
waived, discharged, or terminated only by an instrument in writing signed by
the party hereto against which enforcement of such change, waiver, discharge or
termination is sought.


     Section 14. Expiration. This Warrant, in all events, shall be wholly void
and of no effect after 5:00 P.M. Eastern Standard Time on the Expiration Date,
except that notwithstanding any other provisions hereof, the provisions of
Sections 7 and 8 shall continue in full force and effect after such date as to
any Warrant Shares or other securities issued upon the exercise of this
Warrant.


     Section 15. Successors and Assigns. The terms and provisions of this
Warrant shall inure to the benefit of, and be binding upon, the Company and the
Holder and their respective successors and permitted assigns.


     Section 16. Descriptive Headings; Governing Law; Arbitration. The
descriptive headings of the several sections and paragraphs of this Warrant are
inserted for convenience only and do not constitute a part of this Warrant.
All questions concerning the construction, validity, enforcement and
interpretation of this Warrant shall be governed by the internal laws of the
State


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of Illinois, without giving effect to any choice of law or conflict of law
provision or rule (whether of the State of Illinois or any other jurisdiction)
that would cause the application of the laws of any jurisdiction other than the
State of Illinois.


In the event of any and all disagreements and controversies arising from this
Warrant, such disagreements and controversies shall be subject to binding
arbitration as arbitrated in accordance with 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 Warrant, 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.


     IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by a
duly authorized officer, as of the 2nd day of April, 2003.



	 	 	 
	 	 	
ELECTRIC CITY CORP.
	 	 	 
	 	 	
By: /s/ Jeffrey Mistarz
	 	 	


	 	 	 
	 	 	
Name: Jeffrey Mistarz
	 	 	 
	 	 	
Title: Chief Financial Officer



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EXHIBIT A TO WARRANT



SUBSCRIPTION FORM



TO BE EXECUTED BY THE REGISTERED HOLDER TO EXERCISE THIS WARRANT



ELECTRIC CITY CORP.



     The
undersigned Holder hereby exercises the right to purchase
               
of the shares of Common Stock (“Warrant Shares”) of Electric
City Corp., a Delaware corporation (the “Company”), evidenced by the attached
Warrant (the “Warrant”). The Holder tenders herewith payment of the Aggregate
Exercise Price in full in the amount of
$               
in the form of
cash, certified check or wire transfer of immediately available funds with
respect to
               
Warrant Shares. Capitalized terms used herein and
not otherwise defined shall have the respective meanings set forth in the
Warrant.


Date:
               ,
200   



Name of Holder



	 	 	 	 	 	 	 
	By:	 	 	 	 	 	 
	 	 	
	 	 
	 	 	 	 	 	 	 
	 	 	
Name:	 	 	 	 
	 	 	 	 	
	 	 
	 	 	
Title:	 	 	 	 
	 	 	 	 	
	 	 



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EXHIBIT B TO WARRANT



FORM OF WARRANT POWER



FOR VALUE RECEIVED, the undersigned
does hereby assign and transfer to
               ,
a warrant to purchase
               
                    
shares of the Common Stock
of Electric City Corp., a Delaware corporation, represented by warrant
certificate no.
            , standing in the name of the undersigned on the books of
said corporation. The undersigned does hereby irrevocably constitute and
appoint
               , to transfer the warrants of said corporation,
with full power of substitution in the premises.


Dated:
               ,
200   




	 	 	 	 	 	 
	 	 	
	 
	 	 	 	 	 	 
	 	 	
By:	 	 	 
	 	 	 	 	
	 
	 	 	
Name:	 	 	 
	 	 	 	 	
	 
	 	 	
Its:	 	 	 
	 	 	 	 	
	 





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