Unassociated Document


    Exhibit
10.45

    


    THIRD
AMENDMENT TO

    AMENDMENT
TO DEBENTURES AND WARRANTS,

    AGREEMENT
AND WAIVER

    


    THIS
THIRD AMENDMENT TO AMENDMENT TO DEBENTURES AND WARRANTS, AGREEMENT AND WAIVER
(this “Agreement”) is
entered into as of October 31, 2009 (the “Effective Date”) by and among
Ecotality, Inc., a
Nevada corporation (the “Company”), on the one
hand, and Enable Growth
Partners LP (“EGP”), Enable Opportunity Partners LP (“EOP”), Pierce
Diversified Strategy Master Fund LLC, Ena (“Pierce”, together with EGP, EOP and Pierce, the “Enable Funds”), Shenzhen Goch
Investments Ltd. (“SGI”)
and BridgePointe Master Fund Ltd. (“BridgePointe,” together with
the Enable Funds and SGI, each individually referred to as an “Existing Holder” and collectively as the
“Existing Holders” or the
“Existing Investors”).  Capitalized terms not defined in this
Agreement shall have the meanings ascribed to such terms in the May 2009
Amendment (as defined below).

    


    Recitals

    


    WHEREAS, the Debtors and the
Existing Holders entered into an Amendment to Debentures and Warrants, Agreement
and Waiver on or about May 15, 2009, as amended by the First
Amendment and the Second Amendment (the “May 2009
Amendment”);

    


    WHEREAS, on or about July 2,
2009, the Existing Investors entered into a First Amendment to Amendment to
Debentures and Warrants, Agreement and Waiver (the “First
Amendment”);

    


    WHEREAS, on or about July 2,
2009, the Existing Investors entered into a Second Amendment to Amendment to
Debentures and Warrants, Agreement and Waiver (the “Second Amendment”);

    


    WHEREAS, the Company met the
First Management Incentive Target on September 30, 2009, but has not yet issued
to Jonathan Read, President and Chief Executive Officer of the Company, any
shares of Common Stock or warrants to purchase shares of Common Stock as
permitted by Section 30(a) of the May 2009 Amendment;

    


    WHEREAS, the Company and the
Investors now desire that the terms of Section 30 of the May 2009 Amendment be
further modified and clarified and have entered into this Agreement to document
their agreement regarding such modifications.

    


    NOW THEREFORE, in
consideration of the mutual promises and agreements contained herein, and
intending to be legally bound hereby, the undersigned parties hereby agree as
follows:


    
      
         


      

      
        
        

        
          

        

      

      
         


      

    

    


    A.         Incorporation of Preliminary
Statements. The Recitals set forth above by this reference hereto are
hereby incorporated into this Agreement.

    


    B.     
    Amendment to Section 30(a)
of the May 2009 Amendment.

    


    (1)         Section
30(a) of the May 2009 Amendment is hereby amended and replaced with the
following:

    


    Issuances Upon Satisfaction
of First Management Incentive Target.  As of September 30,
2009, the Company shall be entitled to grant to Jonathan Read, President and
Chief Executive Officer of the Company, 40,410,312 shares of Common Stock (the
“First Incentive Common Stock
Grant”), subject to such conditions and vesting schedule as the Company
may, in its reasonable discretion, impose on the First Incentive Grant Amount;
provided,
however, that in no event shall such grant occur later than January 15,
2010 (the “Latest First Grant
Date”).  In lieu of the First Incentive Common Stock Grant, the
Company shall be entitled to instead grant to Jonathan Read any combination of
the following (the “Substitution First Incentive
Grant”), so long as the economic value of such Substitution First
Incentive Grant is equal to the value of the First Incentive Common Stock Grant
had it had been granted on such date and subject to similar conditions: (i)
40,410,312 shares of Series A Convertible Preferred Stock of the Company (“Series A Preferred Stock”); or
(ii)(A) options to acquire, at fair market value on the date of grant, up to
40,410,312 shares of Common Stock, Series A Preferred Stock or a combination of
shares of Common Stock and Series A Preferred Stock; and (B) an amount of cash
or shares of Common Stock or Series A Preferred Stock (or any combination
thereof) with a fair market value equal to the fair market value of the First
Incentive Common Stock Grant on such date.  Any Substitution First
Incentive Grant may be subject to such conditions and vesting schedule as the
Company may, in its reasonable discretion, impose on the Substitution First
Incentive Grant; provided, however,
that in no event shall such grant occur later than the Latest First Incentive
Grant Date.  For purposes hereof, the “First Management Incentive
Target,” the “Second
Management Incentive Target” and the “Third Management Incentive
Target” shall each have the respective meanings set forth on Schedule I attached
hereto shall be referred to as the “Management Incentive Target
Schedule.”

    


    (2)         Amendment to Section 30(b)
of the May 2009 Amendment.  Section 30(b) of the May 2009
Amendment is hereby amended and replaced with the following:


    
      
         


      

      
        
        

        
          

        

      

      
         


      

    


    Issuances Upon Satisfaction
of First and Second Management Incentive Targets.  “If and when
the Company has met both the First Management Incentive Target and the Second
Management Incentive Target hereto on the respective dates specified next to
each such Management Incentive Target in the Management Incentive Target
Schedule, the Company shall be entitled to issue to the employees, officers or
directors of the Company, in addition to anything issued pursuant to Section
30(a) hereof, 49,951,714 shares of Common Stock (the “Second Incentive Common Stock
Grant”), subject to such conditions and vesting schedule as the Company
may, in its reasonable discretion, impose on the Second Incentive Grant Amount;
provided,
however, that in no event shall such grant occur later than six (6)
months after the date that the Company meets the Second Management Incentive
Target (the “Latest Second
Grant Date”).  In lieu of the Second Incentive Common Stock
Grant, the Company shall be entitled to instead grant to such employees,
officers and directors any combination of the following (the “Substitution Second Incentive
Grant”), so long as the economic value of such Substitution Second
Incentive Grant is equal to the value of the Second Incentive Common Stock Grant
had it had been granted on such date and subject to similar conditions: (i)
49,951,714 shares of Series A Preferred Stock; or (ii)(A) options to acquire, at
fair market value on the date of grant, up to 49,951,714 shares of Common Stock,
Series A Preferred Stock or a combination of shares of Common Stock and Series A
Preferred Stock; and (B) an amount of cash or shares of Common Stock or Series A
Preferred Stock (or any combination thereof) with a fair market value equal to
the fair market value of the Second Incentive Common Stock Grant on such
date.  Any Substitution Second Incentive Grant may be subject to such
conditions and vesting schedule as the Company may, in its reasonable
discretion, impose on the Substitution Second Incentive Grant; provided, however,
that in no event shall such grant occur later than the Latest Second Incentive
Grant Date].”

    


    (3)         Amendment to Section 30(c)
of the May 2009 Amendment.  Section 30(c) of the May 2009
Amendment is hereby amended and replaced with the following:

    


    “Issuances
Upon Satisfaction of First, Second and Third Management Incentive
Targets.  “If
and when the Company has met the First Management Incentive Target, the Second
Management Incentive Target and the Third Management Incentive Target hereto on
the respective dates specified next to each such Management Incentive Target in
the Management Incentive Target Schedule, the Company shall be entitled to issue
to the employees, officers or directors of the Company, in addition to anything
issued pursuant to Sections 30(a) and 30(b) hereof, 49,951,713 shares of Common
Stock (the “Third Incentive
Common Stock Grant”),
subject to such conditions and vesting schedule as the Company may, in its
reasonable discretion, impose on the Second Incentive Grant Amount; provided,
however, that in no
event shall such grant occur later than six (6) months after the date that the
Company meets the Third Management Incentive Target (the “Latest Third
Grant Date”).  In lieu of the Third
Incentive Common Stock Grant, the Company shall be entitled to instead grant to
such employees, officers and directors any combination of the following (the
“Substitution
Third Incentive Grant”), so long as the economic value of
such Substitution Third Incentive Grant is equal to the value of the Third
Incentive Common Stock Grant had it had been granted on such date and subject to
similar conditions: (i) 49,951,713 shares of Series A Preferred Stock; or
(ii)(A) options to acquire, at fair market value on the date of grant, up to
49,951,713 shares of Common Stock, Series A Preferred Stock or a combination of
shares of Common Stock and Series A Preferred Stock; and (B) an amount of cash
or shares of Common Stock or Series A Preferred Stock (or any combination
thereof) with a fair market value equal to the fair market value of the Third
Incentive Common Stock Grant on such date.  Any Substitution Third
Incentive Grant may be subject to such conditions and vesting schedule as the
Company may, in its reasonable discretion, impose on the Substitution Third
Incentive Grant; provided,
however, that in no
event shall such grant occur later than the Latest Third Incentive Grant
Date].”


    
      
         


      

      
        
        

        
          

        

      

      
         


      

    

    


    C.          No Further
Amendments.  Except as set forth above, the May 2009 Amendment
shall remain in full force and effect in accordance with its terms.

    


    D.          Counterparts.  This
Agreement may be executed in counterparts and delivered by facsimile and all so
executed and delivered shall constitute a single original.

    


    [signature
pages follow]


    
      
         


      

      
        
        

        
          

        

      

      
         


      

    


    IN WITNESS WHEREOF, the
parties have duly executed this Agreement as of the date first written
above.

    


    ECOTALITY, INC., a Nevada
corporation

    


    
      
        
          	
                  By: 

                	
                  /s/ Barry
      S. Baer

                


        

      

    

    
      
        	
                Name: 

              	
                Barry S. Baer    

              


      

    

    
      
        	
                Title:
      Chief
      Financial Officer

              


      

    

    


    [signature page of Holders/Investors
follows]


    
      
         


      

      
        
        

        
          

        

      

      
         


      

    


    Convertible
Debenture Holders’ Signature Page

    


    BRIDGEPOINTE MASTER FUND
LTD.

    


    
      
        	
                 By: 

              	
                /s/ Eric
      S. Swartz

              


      

    

    
      
        	
                Name: 

              	
                      
                  Eric
      S. Swartz

                

              


      

    

    
      
        	
                Title: 

              	
                      
                  Director

                

              


      

    

    


    ENABLE GROWTH PARTNERS
LP


    
      
        


        
          
            	
                     By: 

                  	
                          
                      /s/ Brendan
      O’
Neil

                    

                  


          

        

        
          
            	
                    Name: 

                  	
                          
                      Brendan O’
      Neil

                    

                  


          

        

        
          
            	
                    Title: 

                  	
                          
                      President
      and
CIO

                    

                  


          

        

      

    

     

    ENABLE OPPORTUNITY PARTNERS
LP


    
      


      
        
          	
                   By: 

                	
                  /s/ Brendan
      O’ Neil

                


        

      

      
        
          	
                  Name: 

                	
                  Brendan O’
Neil

                


        

      

      
        
          	
                  Title: 

                	
                        
                    President
      and
CIO

                  

                


        

      

    

     

    PIERCE DIVERSIFIED STRATEGY MASTER
FUND LLC, ENA


    
      


      
        
          	
                   By: 

                	
                        
                    /s/ Brendan
      O’
Neil

                  

                


        

      

      
        
          	
                  Name: 

                	
                  Brendan O’
Neil

                


        

      

      
        
          	
                  Title: 

                	
                        
                    President
      and
CIO

                  

                


        

      

    

    


    SHENZHEN GOCH INVESTMENT
LTD.


    
      


      
        
          	
                   By: 

                	
                        
                    /s/ Daryl
      Magana

                  

                


        

      

      
        
          	
                  Name: 

                	
                        
                    Daryl
      Magana

                  

                


        

      

      
        
          	
                  Title: 

                	
                        
                    Authorized
      Representative