EXHIBIT 10.21
SETTLEMENT AGREEMENT
This SETTLEMENT AGREEMENT ("Agreement"), dated as of the 30th day of
June, 2000 is made by and between XXXX XXXXX & ASSOCIATES LLC ("Consultant")
and ELECTRIC CITY CORP., a Delaware corporation ("COMPANY").
RECITALS
WHEREAS, the Company intends to strengthen its position in the
public market place and increase the value of its business through leveraging
Consultant's relationships in the private and public financial market place;
WHEREAS, the Consultant has previously provided certain services to
the company for which the company desires to compensate Consultant;
WHEREAS, the Company desires to engage Consultant to serve, on a
non-exclusive basis, as a consultant and the Consultant desires to be engaged
by the Company as a consultant to perform certain activities as hereinafter
described for an initial period of twelve (12) months unless terminated
earlier pursuant to Section 8.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Consultant and Company do
hereby agree as follows:
SECTION 1
RECITALS:
The aforementioned Recitals are incorporated into the terms and
conditions of this Agreement.
SECTION 2
SERVICES:
The Company hereby retains Consultant to provide, on a non-exclusive
basis, financial consulting assistance. Consultant further agrees to perform
such services, to devote its knowledge and skill to the best interests of the
Company in the performance thereof, and upon reasonable notice from the
Company to make itself available at all reasonable times during normal
business hours for consultation with the officers and directors of the
Company with respect thereto. Consultant will work with the Company's
executives to develop strategies, arrange meetings, review proposals, provide
feedback, and assist in negotiations as requested by the Company.
SECTION 3
COMPENSATION.
In consideration of services previously provided to the Company and
in consideration of the services to be provided under this Agreement, the
Company shall compensate the Consultant as follows:
A. Sixty thousand (60,000) shares of the Company's common $0.0001
par stock (the "Shares"). The Shares shall be delivered to the Consultant
within ten (10) days after the date of this Agreement. The Shares shall be
considered compensation for services completed by the Consultant prior to
June 30, 1999 and as such, the Company acknowledges that such Shares shall be
tradable upon receipt pursuant to the exemption provided for under Rule 144
under the Securities Act of 1933, as amended. Notwithstanding the Share's
tradability under Rule 144, Consultant agrees that: (i) Shares, at any time,
may be sold by Consultant for in excess of $7.00 per share; (ii) No more than
three thousand (3,000) shares of the Shares may be sold by the Consultant per
day; and (iii) No more than 15,000 shares of the Shares may be sold in any
ninety day period.
B. Options to purchase Forty Thousand (40,000) shares, exercisable
at the rate of Ten Thousand (10,000) quarterly from the date of this
Agreement, with such options to expire on the fourth anniversary of the date
of this Agreement, of the common $0.0001 par stock of the Company (the
"Options") at a price equal to the lower of: (i) $7.00 per share; or (ii) the
price per share of the sale by the Company of its common $0.0001 par stock
within 180 days after the date of this Agreement. The Options shall be in the
form of an option agreement attached hereto as Exhibit 3B, and made a part
hereof; and
C. The payment of Fifteen thousand dollars ($15,000.00) upon the
earlier of: (i) 180 days of the date of this Agreement; or (ii) upon the
Company's closing of equity funding in excess of $1,000,000.
SECTION 4
SURVIVAL.
The term of this Agreement shall commence as of the date hereof and
shall remain in effect for a period of twelve (12) months from the date of
this Agreement, unless earlier terminated as hereinafter provided in
Section 8. Notwithstanding the foregoing, the terms of Section 3 shall
survive this Agreement and shall be binding upon the shares of the Company's
common $0.0001 par stock issued to the Consultant under this Agreement.
SECTION 5
INDEPENDENT CONTRACTOR
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Consultant shall be and is an independent contractor and nothing herein
shall be construed to create an agency relationship or a relationship of
employer and employee between the Company and Consultant or any of the
employees, agents or representatives of Consultant. Consultant shall have no
authority, executive or otherwise, to bind the Company.
SECTION 6
RESTRICTIVE COVENANT
Consultant agrees that during the term of this Agreement and for a
period of one (1) year thereafter, it will not provide marketing or other
services on behalf of any other entity which is offering the same or similar
type of services for which it is representing Company pursuant to this
Agreement.
SECTION 7
ASSIGNMENT
In view of the nature of the services to be performed by Consultant
under this Agreement, Consultant shall not have the right to assign or
transfer any of the rights or benefits hereunder, nor shall they be subject
to voluntary or involuntary alienation without the written permission of the
Company. Notwithstanding the foregoing, Consultant shall have the right to
assign the Shares to Condor Investment Trust, Xxxx Xxxxx, personally, Xxx
Xxxxxx, MRP LLC, Xxxxx Xxxxxx and Xxxxx Xxxxxxx with the cooperation of the
Company.
SECTION 8
TERMINATION
This Agreement may be terminated by either party at any time by written
notice of termination given to the other party at least thirty (30) days in
advance of the termination date stated in such notice. Notwithstanding the
foregoing, the terms of Section 3 shall survive this Agreement and shall be
binding upon the shares of the Company's common $0.0001 par stock issued to
the Consultant under this Agreement.
SECTION 9
NOTICE
Any notice required or permitted hereunder shall be made in writing (a)
either by actual delivery of the notice into the hands of the party thereto
entitled, by messenger or by overnight delivery service or (b) by the mailing
of the notice in the United States mail, certified or registered mail, return
receipt requested, all postage prepaid and addressed to the party to whom the
notice is to be given at the party's respective address set forth below.
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IF TO THE CONSULTANT:
Prinz & Associates LLC
000 Xxxxxxxxx Xxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
IF TO THE COMPANY:
Electric City Corp.
0000 Xxxxxxxx Xxxx
Xxx Xxxxx Xxxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxx Xxxxxx
With a copy to:
Xxxxxx & Xxxxx, Ltd.
000 Xxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxx, Esq.
SECTION 10
GOVERNING LAW
This Agreement and all questions arising in connection herewith shall be
governed by the laws of the State of Illinois.
SECTION 11
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 may be modified only by a
written instrument duly executed by each party.
SECTION 12
SEVERABILITY
All Sections, clauses and covenants contained in this Agreement are
severable, and in the event any of them shall be held to be invalid by any
court of competent jurisdiction, this Agreement shall be interpreted as if
such invalid sections, clauses or covenants were not contained herein.
SECTION 13
COUNTERPARTS
This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same.
SECTION 14
WAIVER
In further consideration of this Agreement: (a) Consultant, personally
and any entities in which he may have an interest, and their members and
managers (hereinafter collectively referred to as "Consultant Parties")
hereby release, indemnify and Covenant Not To Xxx or bring any other actions,
and agree to hold harmless (to the fullest extent permitted by law) the
Company, its owners, officers and directors (hereinafter collectively
referred to as "Company Parties"), from any and all current and prior claims,
demands, losses, obligations, actions, suits, judgments and liabilities
(including liabilities for penalties) arising out of, or in any way related
to Company Parties' actions or inactions relating to the Company's securities
or current or prior business transactions between the parties: and (b)
Company Parties hereby release, indemnify and Covenant Not To Xxx or bring
any other actions, and agree to hold harmless (to the fullest extent
permitted by law) Consultant Parties, from any and all current and prior
claims, demands, losses, obligations, actions, suits, judgments and
liabilities (including liabilities for penalties) arising out of, or in any
way related to Consultant Parties' actions or inactions relating to the
Company's securities or current or prior business transactions between the
parties. Further, the parties agree that in the event of any controversies
arising under this Agreement (such controversies referred to as the
"Controversies"), that such Controversies shall be arbitrated in accordance
with the rules of the American Arbitration Association in Chicago, Illinois.
Each party shall select an arbitrator of its own choice and those arbitrators
shall select a third arbitrator who shall arbitrate the Controversy.
Notwithstanding the foregoing, any party may bring and pursue an action in
any federal or state court located in Chicago, Illinois seeking provisional
relief, including a temporary restraining order or preliminary injunction,
pending such arbitration proceeding. Any provisional relief obtained shall be
discontinued once the arbitrators have assumed jurisdiction, if they order
such discontinuance. Further the parties agree that in the event of any such
Controversy, all parties shall not (nor will any party assist any other
person to do so) directly or indirectly reveal, report, publish or disclose
any information relating to such controversy to any person, firm or
corporation not expressly authorized by the other party to receive such
information, or use (or assist any person to use) such information except to
comply with actual legal obligations of the parties or if the disclosure is
directly related to an arbitration proceeding or seeking provisional relief
as provided for herein. The provisions of this paragraph shall survive this
Agreement.
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page follows]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed on the date first set forth above.
ELECTRIC CITY CORP. PRINZ & ASSOCIATES LLC
By: /s/ Xxxx Xxxxxx By: /s/ Xxxx Xxxxx
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Title: Chief Executive Officer Title: Managing Partner for
Xxxx Xxxxx & Associates LLC
