EXHIBIT 2.7
AMENDMENT NO. 5 TO SHARE EXCHANGE AGREEMENT
THIS AMENDMENT NO. 5 TO SHARE EXCHANGE AGREEMENT (this "AMENDMENT") is
made and entered into as of March 3, 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, that
certain Amendment No. 2 to Share Exchange Agreement dated as of October 1, 2004,
that certain Amendment No. 3 to Share Exchange Agreement dated as of January 7,
2005 and that certain Amendment No. 4 to Share Exchange Agreement dated as of
February 16, 2005 (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) Article V of the Exchange Agreement is hereby
amended to add the following new Section 5.5:
5.5 APPROVAL OF EQUITY OFFERING. Such PEI Shareholder
hereby approves and ratifies the Securities Purchase Agreement
(the "SECURITIES PURCHASE AGREEMENT") between PEI and each
investor who subscribes for units (the "UNITS") consisting of
shares of PEI's common stock and warrants to purchase shares
of PEI's common stock pursuant to PEI's Confidential Private
Placement Memorandum dated February 2, 2005, as supplemented
by Supplement No. 1 to Confidential Private Placement
Memorandum dated February 24 2005, and as further supplemented
by Supplement No. 2 to Confidential Private Placement
Memorandum dated March 3, 2005 (collectively, the
"Memorandum").
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(b) Article XVII of the Exchange Agreement is hereby amended
to add the following new Section 17.17:
17.17 JOINDER. Each PEI Shareholder who is also a
subscriber of Units offered by PEI pursuant to the Memorandum
and the Securities Purchase Agreement shall, by virtue of
their execution of the Securities Purchase Agreement, be
deemed to be a signatory to this Agreement and, as a result,
shall be subject to all of the provisions of this Agreement as
if such PEI Shareholder were an actual signatory hereto.
(c) Section 12.14 of the Exchange Agreement is hereby amended
by deleting the number "26,200,000" appearing in the fourth line of said section
and inserting in its place the number "28,800,000."
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.
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By: /S/ BARRY SIEGEL
----------------------------------
Barry Siegel, Chairman and CEO
"ACQUIRED COMPANIES": PACIFIC ETHANOL, INC.
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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. 5 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. 5 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. 5 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
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Frank R. Lindbloom, President
/S/ KENT KAULFUSS
--------------------------------------------
Kent Kaulfuss
/S/ TOM KOEHLER
--------------------------------------------
Tom Koehler
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