Exhibit
2.1
INNOVATIVE SOFTWARE TECHNOLOGIES,
INC.
June 19, 2009
Thomas J.
Elowson
Helge
Solberg
Raymond
Leitz
AcXess
Inc.
3701 FAU
Boulevard
Suite
210
Boca Raton, FL
33431
Re: Amendment
to Stock Purchase Agreement
Gentlemen:
Reference is hereby made to that
certain Stock Purchase Agreement, dated July 24, 2007 (the “
Purchase Agreement ”), among Thomas J. Elowson, Helge
Solberg, and Raymond Leitz (collectively, the “ Buyers
”); Innovative Software Technologies, Inc., a California
corporation (the “ Seller ”); and AcXess Inc., a
Florida corporation (the “ Target
”). All capitalized terms appearing in this letter
agreement and not otherwise defined in this letter agreement shall
have the meanings ascribed thereto in the Purchase
Agreement.
As you know, the Stock Purchase
Agreement contemplated a transaction involving the purchase by
Buyers of the Target Shares and the redemption by Target of the
Redemption Shares (the “ Transaction
”). As you also know, following the execution of
the Stock Purchase Agreement, a dispute has developed as to whether
the conditions to the closing of the Transaction have been
satisfied. Pursuant to our recent discussions, the
purpose of this letter agreement is to memorialize our agreements
regarding the amendment of the Transaction and the Purchase
Agreement and the resolution of this dispute.
By executing this letter below, the
Seller, Buyers and Target confirm their agreement to the
following:
1. The
third (3 rd
) paragraph of the Purchase
Agreement is hereby amended by deleting said paragraph in its
entirety and replacing it with the following:
“This Agreement contemplates a
transaction in which (i) the Buyers will purchase the Target Shares
from Seller, and the Seller will sell the Target Shares to Buyers,
(ii) Target will redeem from Seller, and Seller will sell back to
Target, the Redemption Shares for a consideration consisting of
the promissory note described in Subsection 2(b), so that upon
the Closing the Buyers shall in the aggregate own 100% of all then
authorized, issued and outstanding capital stock of all classes,
and all other equity securities of the Target.”
2. Section
1 of the Purchase Agreement is hereby amended by deleting the
definition of “Target Share”.
3. Section
2(a) of the Purchase Agreement is hereby amended by deleting said
section in its entirety and replacing it with the
following:
“On and subject to the terms
and conditions of this Agreement, (i) the Buyers agree to purchase
from Seller, and Seller agrees to sell to Buyers, all of the Target
Shares, and (ii) Target agrees to redeem from Seller, and Seller
will sell to Target, all of the Redemption Shares. The
“Target Shares” shall consist of 1,015,543 shares of
the outstanding Common Stock, and the “Redemption
Shares” shall consist of all remaining shares of Target
standing in the name of Seller, including without limitation,
3,484,457 shares of Target’s Common Stock. The
Target Shares and Redemption Shares shall together constitute all
of the authorized, issued and outstanding shares of Common Stock
and other equity securities of the Target.”
4. Section
2(b) of the Purchase Agreement is hereby amended by deleting said
section in its entirety and replacing it with the
following:
“The purchase price to be paid
by Buyers for the Target Shares (the "Purchase Price") shall be an
amount equal to $1,015,543, to be paid in the form of the delivery
to Seller of all 4,477,292 shares of Seller common stock held by
Buyers and the cancellation of 5,978,349 options to purchase shares
of Seller common stock held by Buyers. The purchase
price to be paid by Target for the Redemption Shares shall be five
hundred thousand ($500,000), to be paid by delivery to Seller of a
promissory note in substantially the form of Exhibit A hereto in
the principal amount of $500,000, which shall be secured by all of
the assets of Target pursuant to a Security Agreement in
substantially the form of Exhibit B hereto.”
5. Section
3(a) of the Purchase Agreement is hereby amended in part to add the
following thereto:
(i) The
following is hereby added to Subsection 3(a)(v):
"The Target Shares and the
Redemption Shares together constitute 100% of all authorized,
issued and outstanding shares of the capital stock of the Target
and the Target has not issued nor are there any outstanding rights,
options, warrants, notes or other instruments or securities
convertible into any shares of the capital stock of the
Target."
(ii) The
following is hereby added as new Subsection 3(a)(vi):
"Neither Seller nor Seller's
undersigned officer Robert Rudman ("Rudman") nor, to Seller's or
Rudman's knowledge after reasonable inquiry, any other person or
entity acting or purporting to act on behalf of Seller or on behalf
of Target (other than the Buyers) has entered into or caused to be
entered into any agreement, obligation or legally binding
instrument for, on behalf or in the name of Target or otherwise,
and which could give rise to any contractual or other liability
whether absolute, accrued, contingent or otherwise binding upon
Target and to Seller and Rudman's knowledge there is no basis upon
which any person or entity could assert such a claim or liability
against Target arising from or incident to any act or omission of
Seller or Rudman. To Seller and Rudman's knowledge, no
person or entity has asserted any claim against Target that has not
been resolved.
6. &nbs
