SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported) APRIL 18, 2005
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PACIFIC ETHANOL, INC.
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(Exact name of registrant as specified in its charter)
DELAWARE 000-21467 41-2170618
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(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
5711 N. WEST AVENUE, FRESNO, CALIFORNIA 93711
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (559) 435-1771
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any of the
following provisions (SEE General Instruction A.2. below):
|_| Written communications pursuant to Rule 425 under the Securities Act
(17 CFR 230.425)
|_| Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17
CFR 240.14a-12)
|_| Pre-commencement communications pursuant to Rule 14d-2(b) under the
Exchange Act (17 CFR 240.14d-2(b))
|_| Pre-commencement communications pursuant to Rule 13e-4(c) under the
Exchange Act (17 CFR 240.13e-4(c))
ITEM 1.01. ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT.
Effective as of April 18, 2005, Pacific Ethanol, Inc. (the "Company")
appointed William G. Langley as Chief Financial Officer. The disclosures
contained in Item 5.02 of this report relating to this appointment are
incorporated herein by reference.
Effective as of April 18, 2005, the Company entered into an
Indemnification Agreement with Mr. William G. Langley (the "Indemnitee") in
connection with Mr. Langley's appointment as the Chief Financial Officer of the
Company on that date.
The Indemnification Agreement provides that the Company will indemnify
the Indemnitee in connection with any third-party proceeding or threatened
proceeding against the Indemnitee or in connection with a proceeding or
threatened proceeding by or in the right of the Company, such as a stockholder
derivative suit, by reason of the fact that the Indemnitee is or was an officer
and/or director of the Company, or is or was serving at the request of the
Company as a director, officer, employee or agent of another enterprise, against
all expenses, damages, judgments, amounts paid in settlement, fines, penalties
and ERISA excise taxes actually and reasonably incurred by the Indemnitee in
connection with the defense or settlement of any such proceeding, to the fullest
extent permitted by the Delaware General Corporation Law, whether or not the
Indemnitee was the successful party in any such proceeding; provided, however,
that any settlement of a third-party proceeding must be approved in writing by
the Company, and any settlement of a proceeding by or in the right of the
Company is settled with the approval of a court of competent jurisdiction or
indemnification of such amounts is otherwise ordered by a court of competent
jurisdiction in connection with such proceeding.
In addition, the Company is required to advance expenses on behalf of
the Indemnitee in connection with Indemnitee's defense in any such proceeding;
provided, that the Indemnitee undertakes in writing to repay such amounts to the
extent that it is ultimately determined that the Indemnitee is not entitled to
indemnification by the Company.
No indemnification payments or payments for expenses may be made by the
Company under the agreements (i) to indemnify or advance expenses to the
Indemnitee with respect to actions initiated or brought voluntarily by the
Indemnitee and not by way of defense, except with respect to actions brought to
establish or enforce a right to indemnification or advancement of expenses under
the agreement or any other statute or law or otherwise as required under the
Delaware General Corporation Law, but such indemnification or advancement of
expenses may be provided by the Company in specific cases if approved by the
Board of Directors by a majority vote of a quorum thereof consisting of
directors who are not parties to such action, (ii) to indemnify the Indemnitee
for any expenses, damages, judgments, amounts paid in settlement, fines,
penalties or ERISA excise taxes for which payment is actually made to the
Indemnitee under a valid and collectible insurance policy, except in respect of
any excess beyond the amount paid under such insurance, (iii) to indemnify the
Indemnitee for any expenses, damages, judgments, amounts paid in settlement,
fines, penalties or ERISA excise taxes for which the Indemnitee has been or is
indemnified by the Company or any other party otherwise than pursuant to the
agreement, or (iv) to indemnify the Indemnitee for any expenses, damages,
judgments, fines or penalties sustained in any proceeding for an accounting of
profits made from the purchase or sale by Indemnitee of securities of the
Company pursuant to the provisions of Section 16(b) of the Securities Exchange
Act of 1934 and the rules and regulations promulgated thereunder or similar
provisions of any federal, state or local statutory law.
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The Company is also required under the agreement, at the Indemnitee's
request, to maintain in full force and effect, at its sole cost and expense,
directors' and officers' liability insurance by an insurer, in an amount and
with a deductible reasonably acceptable to the Indemnitee covering the period
during which the Indemnitee is serving in any one or more of the capacities
covered by the agreement and for so long thereafter as the Indemnitee shall be
subject to any possible claim or threatened, pending or completed proceeding by
reason of the fact that the Indemnitee is serving in any of the capacities
covered by the agreement; provided, that the Company shall have no obligation to
maintain such insurance if the Company determines, in good faith, that (i) such
insurance cannot be obtained on terms which are commercially reasonable, (ii)
the premium costs for such insurance is significantly disproportionate to the
amount of coverage provided, (iii) the coverage provided by such insurance is
limited by exclusions so as to provide an insufficient benefit, or (iv) the
Company, after using best efforts, is otherwise unable to obtain such insurance.
ITEM 5.02. DEPARTURE OF DIRECTORS OR PRINCIPAL OFFICERS; ELECTION OF DIRECTORS;
APPOINTMENT OF PRINCIPAL OFFICERS.
Effective April 18, 2005, the Board of Directors of the Company
appointed William G. Langley as the Chief Financial Officer of the Company.
Since November 2002, Mr. Langley has been a partner in Tatum CFO
Partners, LLP ("Tatum"), a national partnership of more than 350 professional
chief financial officers. During this time, Mr. Langley has acted as the
full-time Chief Financial Officer for Ensequence, Inc., an inter-active
television software company, and Norton Motorsports, Inc., a consumer products
manufacturing company. In addition, from November 2004 through February 2005, he
served as interim Chief Financial Officer for Auctionplay, Inc.
From 2001 to 2002, Mr. Langley served as the President, Chief Financial
Officer and Chief Operating Officer for Laservia Company, a company specializing
in advanced laser system technology. From December 2000 to September 2001, Mr.
Langley acted as the Chief Financial Officer of Rulespace, Inc., a developer of
artificial intelligence software. Mr. Langley will remain a partner in Tatum
during his employment with the Company.
Mr. Langley's compensation is to be $20,000 per month, earned and
payable semi-monthly. If the Company terminates Mr. Langley for other than cause
during the first 120 days of his employment, he will be entitled to additional
compensation equal to $4,000 for each month served. He will not be afforded any
additional benefits other than he will accrue vacation at a rate of 1.67 days
per month.
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ITEM 9.01. FINANCIAL STATEMENTS AND EXHIBITS.
(a) Financial Statements of Businesses Acquired.
Not applicable.
(b) Pro Forma Financial Information.
Not applicable.
(c) Exhibits.
Number Description
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10.1 Description of employment arrangement with William G.
Langley
10.2 Form of Indemnification Agreement between the Company
and each of its Executive Officers and Directors (1)
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(1) Filed with the Securities and Exchange Commission on March
29, 2005 as an exhibit to the Company's Report on Form 8-K
and incorporated herein by reference.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Date: April 22, 2005 PACIFIC ETHANOL, INC.
By: /S/ NEIL KOEHLER
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Neil Koehler, President and CEO
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EXHIBITS FILED WITH THIS REPORT ON FORM 8-K
Number Description
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10.1 Description of employment arrangement with William G. Langley
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