FIRST AMENDMENT TO AMENDMENT TO DEBENTURES AND WARRANTS, AGREEMENT AND WAIVER
EXHIBIT 10.1
FIRST
AMENDMENT TO
AMENDMENT
TO DEBENTURES AND WARRANTS,
AGREEMENT
AND WAIVER
THIS FIRST AMENDMENT TO AMENDMENT TO
DEBENTURES AND WARRANTS, AGREEMENT AND WAIVER (this “Agreement”) is entered into on
June ____, 2009 by and among Ecotality, Inc., a Nevada
corporation (the “Company”) and the Company’s
subsidiaries Ecotality Stores,
Inc., a Nevada corporation, Electric Transportation Engineering
Corporation, an Arizona corporation (“ETEC”), The Clarity Group, Inc., an
Arizona corporation, and Portable Energy De Mexico, S.A. d
C.V., a Mexican corporation, and GHV Refrigeration Inc., a
California corporation, (such subsidiaries, the “Guarantors” and together with
the Company, the “Debtors”), on the one hand,
and Enable Growth Partners LP
(“EGP”), Enable
Opportunity Partners LP (“EOP”), Xxxxxx Diversified Strategy
Master Fund LLC, Ena (“Xxxxxx”, together with EGP,
EOP and Xxxxxx, the “Enable
Funds”), and BridgePointe Master Fund Ltd. (“BridgePointe,” together with
the Enable Funds, each individually referred to as an “Existing Holder” and
collectively as the “Existing
Holders” or the
“Existing Investors”),
on the other hand and by Xxxxxx Xxxxxx, Xxxxxxx Xxxxxx and Xxxxx Xxxxxx.
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 (the “May 2009 Amendment”);
and
WHEREAS, the Company and the
Investors now desire that the terms of the May 2009 Amendment be modified 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.
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B.
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Amendment to May 2009
Amendment. The parties now wish to amend the May 2009 Amendment as
set forth below.
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1. Section
1. The definition of “Required Holders” in Section 1 of the
May 2009 Amendment is hereby amended and replaced with the
following:
“‘Required
Holders’ shall mean the holders of 85% of the
then outstanding principal amount of Included Debt.”
2. Section 10. Clause
(ii) of the first sentence of Section 10 of the May 2009 Amendment is hereby
amended to change the reference to “75% of the outstanding principal amount of
the Included Debt, excluding the Included Debt held by the Enable Funds” to
refer to “85% of the outstanding principal amount of the Included Debt,
excluding the Included Debt held by the Enable Funds”. In addition, the language
in the first sentence of Section 10 of the May 2009 Amendment which currently
reads as follows:
“
.. . . the nominee of the Bridge Lenders (either itself or through its investment
manager), at its option, shall have the right (in each case, such right holders
are referred to as “Board Right
Holders”) to recommend a nominee (each, an “Investor Nominee”) . . .
”,
is hereby
amended to instead read as follows:
“
.. . . BridgePointe and the Bridge Lenders (in each case, either itself or
through its investment manager), each at its option, shall have the right (in
each case, such right holder is referred to as a “Board Right Holder”) to
recommend a nominee (each, an “Investor Nominee”) . .
..”
3. Section 11(b). The
definition of “June 30 Fully Diluted Amount” in Section 11(b) of the May 2009
Amendment is hereby amended and replaced with the following:
“June 30 Fully Diluted Amount”
shall mean an amount equal to the product of: (i) the fully diluted number of
shares of common stock of the Company as of June 30, 2009, excluding shares
issuable upon conversion of the Included Debt and shares issuable upon the
exercise of the Total Warrants of the Included Holders, but for purposes of
clarification expressly not excluding any shares issuable upon exercise of any
Joint Venture Warrants (as defined below) outstanding as of June 30, 2009,
multiplied by (ii) five (5). For purposes hereof, “Joint Venture Warrants” shall
mean any warrants issued by the Company in conjunction with any joint venture
transaction.
4. Section 12. Section
12 of the May 2009 Amendment is hereby amended to add the following new
paragraph to the end of such Section 12:
“Notwithstanding
anything in this Section 12 to the contrary, it is expressly understood that the
issuance by the Company of up to 86,088,860 warrants to purchase shares of
Company common stock to Shenzhen Goch Investment Ltd. pursuant to that certain
letter of intent, dated as of June___, 2009, by and between the Company and
Shenzhen Goch Investment Ltd. (the “Cybernaut LOI”) will not, under any
circumstances, constitute a Triggering Issuance for the purposes of this
Agreement; provided that the terms of such warrants to purchase shares of
Company common stock are substantially similar to those set forth in the
Cybernaut LOI.”
5. Section 13. Clause
(a) of Section 13 of the May 2009 Amendment regarding “Section 9 Additional Covenants”
which have been added to the Debentures, is hereby amended to change the
reference in new Debenture Section 9(c) from “75% in principal amount of the
then outstanding Debentures,” to “85% in
principal amount of the then outstanding Debentures,”.
6. Section 14. The first
sentence of Section 14 of the May 2009 Amendment, which currently reads as
follows:
“No provision of this Agreement may
be waived or amended except in a written instrument signed by the Company and by
the Existing Holders holding 75% of the principal amount of the outstanding
Debentures.”
is hereby
amended to instead read as follows:
“No
provision of this Agreement may be waived or amended except in a written
instrument signed by the Company and by the Required Holders.”
7. No Further
Amendments. Except as set forth
above, the May 2009 Amendment shall remain in full force and effect in
accordance with its terms.
8. Counterparts. This Amendment 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
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By:
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Name:
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Title:
Chief Executive Officer
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ECOTALITY STORES, INC., a
Nevada corporation
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By:
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Name:
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Title:
Chief Executive Officer
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ELECTRIC TRANSPORTATION ENGINEERING
CORPORATION, an Arizona corporation
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By:
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Name:
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Title:
Chief Executive Officer
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THE CLARITY GROUP, INC., an
Arizona corporation
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By:
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Name:
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Title:
Chief Executive Officer
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PORTABLE ENERGY DE MEXICO, S.A. D
C.V., a Mexican corporation
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By:
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Name:
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Title:
Chief Executive Officer
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G.H.V. REFRIGERATION, INC., a
California corporation
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By:
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Name:
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Title:
Chief Executive Officer
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XXXXXX
XXXXXX, Individually
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By:
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XXXXX
XXXXXX, Individually
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By:
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XXXXXXX
XXXXXX, Individually
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By:
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[signature page of Holders/Investors
follows]
Convertible
Debenture Holders’ Signature Page
BRIDGEPOINTE
MASTER FUND LTD.
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By:
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Name:
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Title:
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ENABLE
GROWTH PARTNERS LP
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By:
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Name:
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Title:
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ENABLE
OPPORTUNITY PARTNERS LP
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By:
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Name:
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Title:
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XXXXXX
DIVERSIFIED STRATEGY MASTER FUND LLC, ENA
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By:
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Name:
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Title:
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