EXHIBIT 2.5
AMENDMENT NO. 3 TO SHARE EXCHANGE AGREEMENT
THIS AMENDMENT NO. 3 TO SHARE EXCHANGE AGREEMENT (this "AMENDMENT") is
made and entered into as of January 7, 2005, by and among Accessity Corp., a New
York corporation ("ACCESSITY"); Pacific Ethanol, Inc., a California corporation
("PEI"); Kinergy Marketing, LLC, an Oregon limited liability company
("KINERGY"); ReEnergy, LLC, a California limited liability company ("REENERGY,"
and together with PEI and Kinergy, the "ACQUIRED COMPANIES"); each of the
shareholders of PEI (collectively, the "PEI SHAREHOLDERS"); each of the holders
of options or warrants to acquire shares of common stock of PEI (collectively,
the "PEI WARRANTHOLDERS"); each of the limited liability company members of
Kinergy identified on the signature pages hereof (collectively, the "KINERGY
MEMBERS"); each of the limited liability company members of ReEnergy identified
on the signature pages hereof (collectively, the "REENERGY MEMBERS").
WHEREAS, Accessity, PEI, Kinergy, and ReEnergy have executed a Share
Exchange Agreement dated as of May 14, 2004, as amended by that certain
Amendment No. 1 to Share Exchange Agreement dated as of July 29, 2004 and that
certain Amendment No. 2 to Share Exchange Agreement dated as of October 1, 2004
(as so amended, the "EXCHANGE AGREEMENT"); and
WHEREAS, Accessity, PEI, Kinergy and ReEnergy desire to amend certain
provisions of the Share Exchange Agreement.
NOW THEREFORE, in consideration of the foregoing premises and the
respective promises and agreements of the parties set forth herein, the parties
hereto agree as follows:
1. DEFINITIONS. Capitalized terms used herein and not otherwise defined
herein shall have the respective meanings ascribed thereto in the Exchange
Agreement.
2. AMENDMENTS.
(a) Section 12.14 of the Exchange Agreement is hereby amended
by deleting the number "21,700,000" appearing in the fourth line of said section
and inserting in its place the number "25,700,000."
(b) Article XIV of the Exchange Agreement is hereby amended by
adding at the end thereof a new Section 14.9 which shall read in its entirety as
follows:
"14.9 REGISTRATION OF SECURITIES. The Acquired Companies
and/or Accessity shall not file a registration statement with the
Securities and Exchange Commission to register any securities issued by
any of the Acquired Companies and/or Accessity from October 1, 2004
through six (6) months after the Closing Date of the Share Exchange,
other than a registration statement on Form S-8 covering the shares of
common stock issuable to Barry Siegel and Philip Kart pursuant to
Section 12.9 of this Agreement."
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(c) Subsection (c) of Section 16.1 of the Exchange Agreement
is hereby amended by deleting the reference to "January 7, 2005" and inserting
in its place "February 28, 2005."
(d) Exhibit B to the Exchange Agreement is hereby amended by
deleting the row of the table entitled "PEI SHAREHOLDERS AND ACCESSITY EXCHANGE
SHARES TO BE RECEIVED" on Exhibit B that reads: "Lyles Diversified, Inc.
1,160,000 1,160,000" and inserting in its place the following new information:
"Lyles Diversified, Inc. 1,170,000 1,170,000"
(e) Exhibit B to the Exchange Agreement is hereby amended to
include the following information and to amend the TOTAL amounts shown on the
table entitled "PEI SHAREHOLDERS AND ACCESSITY EXCHANGE SHARES TO BE RECEIVED":
No. of Shares No. of Accessity
"Name of Shareholder of PEI Stock Owned Exchange Shares
-------------------- ------------------ ---------------
Bock-Stegman Trust 33,333 33,333
Michael T. Bock Revocable Trust 33,333 33,333
Jon Spar and Karen Kulkowski 27,000 27,000
Peter Bock 10,000 10,000
Neil Sullivan 60,000 60,000
------ ------
TOTAL 13,505,866 13,505,866"
========== ===========
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(f) Exhibit B to the Exchange Agreement is hereby further
amended to include the following information and to amend the TOTAL amounts
shown on the table entitled "PEI WARRANTHOLDERS AND WARRANTS TO ACQUIRE
ACCESSITY COMMON STOCK":
No. of Shares
Subject to Accessity Exercise Price
"Name of PE Warrantholder Replacement Warrants Per Share
------------------------- -------------------- ---------
Bock-Stegman Trust 6,666 $3.00
Michael T. Bock Revocable Trust 6,666 $3.00
Jon Spar and Karen Kulkowski 5,400 $3.00
Peter Bock 2,000 $3.00
Neil Sullivan 12,000 $3.00
-----
TOTAL $.0001-$3.00"
=============
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(g) Exhibit B to the Exchange Agreement is hereby further
amended by deleting the table entitled name "CONVERTIBLE DEBT" in its entirety
and replacing said table with the following new table which shall read in its
entirety as follows:
"CONVERTIBLE DEBT
-----------------
Lyles Diversified, Ins. * 830,000* 830,000*
------- -------
----------
* Lyles Diversified, Inc. ("LDI") may receive up to 830,000
shares of PEI Stock pursuant to the conversion of a portion of the
currently outstanding debt owed by PEI to LDI, which conversion is at
the option of LDI. Accordingly, the number of Accessity Exchange Shares
to be received by LDI shall be equal to the product of (i) the number
of shares of PEI Stock received upon conversion (at a conversion rate
of $1.50 per share) of such portion of such debt, multiplied by (ii)
the PEI Exchange Ratio. The parties acknowledge and agree that
Accessity Exchange Shares will be directly issued to LDI (without any
preceding issuance of shares of PEI Stock) if such conversion occurs
after the Closing Date."
3. MISCELLANEOUS. Except as modified and amended pursuant to this
Amendment, the Exchange Agreement shall remain in full force and effect. This
Amendment may be executed in one or more counterparts, each of which shall be
deemed an original, but all of which taken together shall constitute one and the
same instrument. This Amendment will become binding when one or more
counterparts hereof, individually or taken together, will bear the signatures of
all the parties reflected hereon as signatories.
[SIGNATURES CONTAINED ON THE FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the day and year first above written.
"ACCESSITY": ACCESSITY CORP.
---------
By: /S/ BARRY SIEGEL
----------------------------------
Barry Siegel, Chairman and CEO
"ACQUIRED COMPANIES": PACIFIC ETHANOL, INC.
------------------
By: /S/ RYAN TURNER
----------------------------------
Ryan Turner, Director and COO
KINERGY MARKETING, LLC
By: /S/ NEIL M. KOEHLER
----------------------------------
Neil M. Koehler, President
REENERGY, LLC
By: /S/ FRANK R. LINDBLOOM
----------------------------------
Frank R. Lindbloom, Member/Owner
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PEI SHAREHOLDER AND PEI WARRANTHOLDER
SIGNATURE PAGE
TO
AMENDMENT NO. 3 TO
SHARE EXCHANGE AGREEMENT
Pursuant to the authority granted to the undersigned in Section 17.2 of
the Exchange Agreement, by execution of this Amendment below by the undersigned,
the PEI Shareholders and PEI Warrantholders have executed this Amendment as of
the day and year first above written.
By: /S/ RYAN TURNER
----------------------------------
Ryan Turner,
Attorney-in-Fact
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KINERGY MEMBER
SIGNATURE PAGE
TO
AMENDMENT NO. 3 TO
SHARE EXCHANGE AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the day and year first above written.
/S/ NEIL M. KOEHLER
------------------------------------
Neil M. Koehler
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REENERGY MEMBER
SIGNATURE PAGE
TO
AMENDMENT NO. 3 TO
SHARE EXCHANGE AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the day and year first above written.
KINERGY RESOURCES, LLC
By: /S/ NEIL M. KOEHLER
-----------------------------------------
Neil M. Koehler, Member
FLIN-MAC, INC.
By: /S/ FRANK R. LINDBLOOM
------------------------------------------
Frank R. Lindbloom, President
/S/ KENT KAULFUSS
---------------------------------------------
Kent Kaulfuss
/S/ TOM KOEHLER
---------------------------------------------
Tom Koehler
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