exv4w39



 





Exhibit 4.39




JOINDER TO STOCKHOLDERS AGREEMENT




     This Joinder To Stockholders 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, an Ohio limited
partnership (“TVP”), and John Donohue, an individual (“Donohue”).



W I T N E S S E T H:




     WHEREAS, the Company is a party to that certain Stockholders 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, Morgan Stanley Dean Witter Equity Funding, Inc. (“MSDW”) and
Originators Investment Plan, L.P. (“OIP”), as “Sellers”, and Augustine, TVF and
Donohue, 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 Donohue 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, it is a condition precedent to the obligations of each of
Augustine, TVF and Donohue to purchase such securities from MSDW and OIP that
the parties hereto enter into this Agreement and the Company is agreeable to
the same; and



     NOW, THEREFORE, the Parties 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 Donohue 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 Donohue shall be a party to
and be bound by the Existing Agreement as a Holder thereunder (as such term is
defined therein).



     3. Representations. Each of Augustine, TVF and Donohue, severally for
itself or himself only, hereby represents and warrants to the Company that this
Agreement has been duly executed and delivered by Augustine, TVF or Donohue (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 Donohue
hereby acknowledges that it or he has received a copy of the Existing
Agreement.



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     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 two or more counterparts, all of
which shall be deemed but one and the same instrument and each of which shall
be deemed an original, and it shall not be necessary in making proof of this
Agreement to produce or account for more than one such counterpart for each of
the parties hereto. Delivery by facsimile by any of the parties hereto of an
executed counterpart of this Agreement shall be effective as an original
executed counterpart hereof and shall be deemed a representation that an
original executed counterpart hereof will be delivered.



     (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
Stockholders Agreement to be executed as of the day and year first above
written.



	 	 	 	 	 	 	 
	ELECTRIC CITY CORP.
	 	TECHNOLOGY TRANSFORMATION

VENTURE FUND, LP
	 
	 	 	 	 	 	 
	By:

	 	/s/ Jeffrey Mistarz
	 	By:
	 	/s/ William M. Custer
	

	 	
 
	 	 	 	
 
	

	 	Jeffrey Mistarz

Chief Financial Officer
	 	Name:

Title:
	 	William M. Custer

President, Custer Capital Fund IV, GP
	 
	 	 	 	 	 	 
	AUGUSTINE FUND LP.	 	 	 	 
	 
	 	 	 	 	 	 
	By:

	 	/s/ Thomas F. Duszynski
	 	/s/ John Donohue
	

	 	
 
	 	
 
	Name:

Title:

	 	Thomas F. Duszynski

Chief Financial Officer
	 	John Donohue








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