EXHIBIT 2.6
AMENDMENT NO. 4 TO SHARE EXCHANGE AGREEMENT
THIS AMENDMENT NO. 4 TO SHARE EXCHANGE AGREEMENT (this "AMENDMENT") is
made and entered into as of February 16, 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
and that certain Amendment No. 3 to Share Exchange Agreement dated as of January
7, 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) Section 12.14 of the Exchange Agreement is hereby amended
by deleting the number "25,700,000" appearing in the fourth line of said section
and inserting in its place the number "26,200,000."
(b) Subsection (c) of Section 16.1 of the Exchange Agreement
is hereby amended by deleting the reference to "February 28, 2005" and inserting
in its place "March 25, 2005."
(c) 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: "Xxxxx Diversified, Inc. 1,170,000 1,170,000"
and inserting in its place the following new information:
"Xxxxx Diversified, Inc. 1,270,000 1,270,000"
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(d) Exhibit B to the Exchange Agreement is hereby amended to
delete the following information: "Xxxx Xxxxxxxx 60,000 60,000" and to amend the
TOTAL amounts shown on the table entitled "PEI SHAREHOLDERS AND ACCESSITY
EXCHANGE SHARES TO BE RECEIVED" as follows:
"TOTAL 13,545,866 13,545,866"
========== ===========
(e) Exhibit B to the Exchange Agreement is hereby further
amended to restate in its entirety the table entitled "PEI WARRANTHOLDERS AND
WARRANTS TO ACQUIRE ACCESSITY COMMON STOCK" as follows:
No. of Shares
Subject to Accessity Exercise Price
"Name of PEI Warrantholder Replacement Warrants Per Share
-------------------------- -------------------- ---------
Xxxxx-XxXxxx Capital Partners 14,167 $ 1.50
Prima Capital Group, Inc. 28,320 $ 1.50
Xxxxx Xxxxxxx 1,000 $ 1.50
Xxxxx-XxXxxx Capital Partners 50,000 $ 2.00
Xxxxxxx Xxxxxxxxxx 25,000 $ 0.01
Liviakis Financial Communications, Inc. 230,000 $0.0001
Xxxx-Xxxxxxx Trust 6,666 $ 3.00
Xxxxxxx X. Xxxx Revocable Trust 6,666 $ 3.00
Xxx Xxxx and Xxxxx Xxxxxxxxx 5,400 $ 3.00
Xxxxx Xxxx 2,000 $ 3.00
Xxxx-Xxxxxxx Trust 3,333 $ 5.00
Xxxxxxx X. Xxxx Revocable Trust 3,333 $ 5.00
Xxx Xxxx and Xxxxx Xxxxxxxxx 2,700 $ 5.00
Xxxxx Xxxx 1,000 $ 5.00
TOTAL 379,585 $.0001-$5.00"
=============
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(f) 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
-----------------
Xxxxx Diversifield, Inc. 730,000* 730,000*
-------- --------
* Xxxxx Diversified, Inc. ("LDI") may receive up to 730,000
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/ XXXXX XXXXXX
-----------------------------------
Xxxxx Xxxxxx, Chairman and CEO
"ACQUIRED COMPANIES": PACIFIC ETHANOL, INC.
------------------
By: /S/ XXXX XXXXXX
-----------------------------------
Xxxx Xxxxxx, Director and COO
KINERGY MARKETING, LLC
By: /S/ XXXX X. XXXXXXX
-----------------------------------
Xxxx X. Xxxxxxx, President
REENERGY, LLC
By: /S/ XXXXX X. XXXXXXXXX
-----------------------------------
Xxxxx X. Xxxxxxxxx, Member/Owner
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PEI SHAREHOLDER AND PEI WARRANTHOLDER
SIGNATURE PAGE
TO
AMENDMENT NO. 4 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/ XXXX XXXXXX
------------------------------------
Xxxx Xxxxxx,
Attorney-in-Fact
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KINERGY MEMBER
SIGNATURE PAGE
TO
AMENDMENT NO. 4 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/ XXXX X. XXXXXXX
------------------------------------
Xxxx X. Xxxxxxx
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REENERGY MEMBER
SIGNATURE PAGE
TO
AMENDMENT NO. 4 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/ XXXX X. XXXXXXX
--------------------------------------
Xxxx X. Xxxxxxx, Member
FLIN-MAC, INC.
By: /S/ XXXXX X. XXXXXXXXX
---------------------------------------
Xxxxx X. Xxxxxxxxx, President
/S/ XXXX XXXXXXXX
---------------------------------------
Xxxx Xxxxxxxx
/S/ XXX XXXXXXX
---------------------------------------
Xxx Xxxxxxx
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