Pacific Ethanol, Inc.
As
filed with the Securities and Exchange Commission on June 8,
2007
Registration
No. 333-_________
SECURITIES
AND EXCHANGE COMMISSION
FORM
S-3
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
PACIFIC
ETHANOL, INC.
(Exact
name of Registrant as specified in its charter)
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Delaware
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2860
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41-2170618
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|
(State
or Other Jurisdiction of
Incorporation
or Organization)
|
(Primary
Standard Industrial
Classification
Code Number)
|
(I.R.S.
Employer
Identification
No.)
|
400
Capitol Mall, Suite 2060
Sacramento,
California 95814
(916)
403-2123
(Address,
Including Zip Code, and Telephone Number, Including Area Code, of Registrant’s
Principal Executive Offices)
Neil
Koehler
Chief
Executive Officer
Pacific
Ethanol, Inc.
400
Capitol Mall, Suite 2060
Sacramento,
California 95814
(916)
403-2123 / (916) 446-3937 (fax)
(Name,
Address, Including Zip Code, and Telephone Number, Including Area Code, of
Agent
for Service)
Copies
of all correspondence to:
Larry
A. Cerutti, Esq.
John
T. Bradley, Esq.
Rutan
& Tucker, LLP
611
Anton Boulevard, 14th Floor
Costa
Mesa, California 92626
(714)
641-5100 / (714) 546-9035 (fax)
Approximate
date of commencement of proposed sale to the public: From
time to time after the effective date of this registration statement.
If
the
only securities being registered on this Form are being offered pursuant to
dividend or interest reinvestment plans, check the following box.
¨
If
any of
the securities being registered on this Form are to be offered on a delayed
or
continuous basis pursuant to Rule 415 under the Securities Act, other than
securities offered only in connection with dividend or interest reinvestment
plans, check the following box. x
If
this
Form is filed to register additional securities for an offering pursuant to
Rule
462(b) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. ¨
If
this
Form is a post-effective amendment filed pursuant to Rule 462(c) under the
Securities Act, check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the same
offering. ¨
If
this
Form is a registration statement pursuant to General Instruction I.D. or a
post-effective amendment thereto that shall become effective upon filing with
the Commission pursuant to Rule 462(e) under the Securities Act, check the
following box. ¨
If
this
Form is a post-effective amendment to a registration statement filed pursuant
to
General Instruction I.D. filed to register additional securities or additional
classes of securities pursuant to Rule 413(b) under the Securities Act, check
the following box. ¨
CALCULATION
OF REGISTRATION FEE
|
Title
of Each Class of
Securities
to be Registered
|
Amount
to
be
Registered(1)
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Proposed
Maximum
Offering
Price
Per
Share(2)
|
Proposed
Maximum
Aggregate
Offering
price(1)(2)
|
Amount
of
Registration
Fee(3)
|
|
Common
stock, $.001 par value
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$250,000,000
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$
―
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$250,000,000
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$7,675
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(1)
An
indeterminate number of shares of common stock are being registered hereunder,
but in no event will the aggregate offering price of all common stock issued
from time to time pursuant to this registration statement exceed $250,000,000.
In addition, pursuant to Rule 416 under the Securities Act, the shares being
registered hereunder include such indeterminate number of shares of common
stock
as may be issuable with respect to the shares being registered hereunder as
a
result of stock splits, stock dividends or similar transactions.
(2)
The
proposed maximum offering price per share of common stock will be determined
from time to time by the Registrant in connection with the issuance by the
Registration of the common stock registered pursuant to this registration
statement.
(3)
The
registration fee was calculated in accordance with Rule 457(o) under the
Securities Act.
The
Registrant hereby amends this Registration Statement on such date or dates
as
may be necessary to delay its effective date until the Registrant shall file
a
further amendment which specifically states that this Registration Statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
The
information in this prospectus is not complete and may be changed. We may not
sell these securities until the registration statement filed with the Securities
and Exchange Commission is effective. This prospectus is not an offer to sell
these securities, and we are not soliciting offers to buy these securities,
in
any state where the offer or sale is not permitted.
PRELIMINARY
PROSPECTUS
SUBJECT
TO COMPLETION DATED JUNE 8, 2007
$250,000,000
PACIFIC
ETHANOL, INC.
We
may
from time to time offer and sell common stock in one or more offerings for
an
aggregate initial offering price of $250,000,000. This prospectus describes
the
general manner in which our common stock may be offered using this prospectus.
We will specify in one or more accompanying prospectus supplements and/or free
writing prospectuses (each, a “prospectus supplement”) the terms of the
securities to be offered and sold. We may also add, update or change in a
prospectus supplement certain of the information contained in this prospectus
or
in documents we incorporate by reference into this prospectus. We may sell
these
securities to or through underwriters or dealers and also to other purchasers
or
through agents. We will set forth the names of any underwriters, dealers or
agents in an accompanying prospectus supplement. For additional information
on
the methods of sale, you should refer to the section entitled “Plan of
Distribution” beginning on page 7 of this prospectus.
Our
common stock is quoted on the NASDAQ Global Market under the symbol “PEIX.” On
June 6, 2007, the closing sale price of our common stock on the NASDAQ
Global Market was $12.97 per share.
The
mailing address and the telephone number of our principal executive offices
are
400 Capitol Mall, Suite 2060, Sacramento, California 95814, (916) 403-2123
Investing
in our shares of common stock involves risks. You should review carefully the
risks and uncertainties described under the heading “Risk Factors” contained in
any applicable prospectus supplement and under similar headings in the other
documents we incorporate by reference into this prospectus.
Neither
the Securities and Exchange Commission nor any state securities commission
has
approved or disapproved of these securities or determined if this prospectus
is
accurate or complete. Any representation to the contrary is a criminal
offense.
This
prospectus may not be used to consummate sales of securities unless it is
accompanied by a prospectus supplement.
The
date of this prospectus is ______________, 2007.
TABLE
OF CONTENTS
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Page
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About
This Prospectus
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3
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Prospectus
Summary
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4
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Risk
Factors
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5
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Special
Note Regarding Forward-Looking Statements
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6
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Use
of Proceeds
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6
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Dilution
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6
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Plan
of Distribution
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7
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Incorporation
of Certain Information by Reference
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10
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Legal
Matters
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11
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Experts
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11
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Transfer
Agent and Registrar
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11
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Where
You Can Find Additional Information
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11
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ABOUT
THIS PROSPECTUS
This
prospectus is part of a registration statement filed with the Securities and
Exchange Commission, or Commission, using a “shelf” registration process. Under
the shelf registration process, we may, from time to time, sell our common
stock
in one or more offerings up to an aggregate dollar amount of $250,000,000.
Each
time we sell any common stock under this prospectus, we will provide a
prospectus supplement that will contain more specific information about the
terms of that offering. We may also add, update or change in a prospectus
supplement any of the information contained in this prospectus or in documents
we have incorporated by reference into this prospectus. This prospectus,
together with the applicable prospectus supplements and the documents
incorporated by reference into this prospectus and the prospectus supplements,
includes the material information relating to this offering. You should
carefully read both this prospectus and the applicable prospectus supplement
together with the additional information described herein under “Where You Can
Find Additional Information” before buying securities in this
offering.
We
may
sell the common stock offered pursuant to this prospectus to or through
underwriters, dealers or agents or directly to purchasers. We and our agents
reserve the sole right to accept and to reject in whole or in part any proposed
purchase of common stock. A prospectus supplement, which we will provide to
you
each time we offer common stock, will provide the names of any underwriters,
dealers, or agents involved in the sale of the common stock, and any applicable
fee, commission or discount arrangements with them.
You
should rely only on the information contained in or incorporated by reference
into this prospectus or a related prospectus supplement. We have not authorized
anyone to provide you with information that is different. This prospectus may
be
used only where it is legal to sell the common stock offered pursuant to this
prospectus. This document is not an offer to sell, or a solicitation of an
offer
to buy, in any state where the offer or sale is prohibited. The information
in
this prospectus or any prospectus supplement is accurate only on the date of
this prospectus or such prospectus supplement and may become obsolete later.
Neither the delivery of this prospectus or any prospectus supplement, nor any
sale made under this prospectus or any prospectus supplement will, under any
circumstances, imply that the information in this prospectus or any prospectus
supplement is correct as of any date after the date of this prospectus or such
prospectus supplement.
PROSPECTUS
SUMMARY
To
fully understand this offering and its consequences to you, you should read
the
following summary along with the more detailed information and our consolidated
financial statements and the notes to those financial statements incorporated
by
reference in this prospectus. In this prospectus, the words “we,” “us,” “our”
and similar terms refer to Pacific Ethanol, Inc., a Delaware corporation,
together with its subsidiaries, unless the context provides
otherwise.
Pacific
Ethanol, Inc.
Our
primary goal is to become the leading marketer and producer of renewable fuels
in the Western United States.
We
produce and sell ethanol and its co-products and provide transportation, storage
and delivery of ethanol through third-party service providers in the Western
United States, primarily in California, Nevada, Arizona, Oregon and Colorado.
We
have extensive customer relationships throughout the Western United States
and
extensive supplier relationships throughout the Western and Midwestern United
States.
Our
customers are oil companies who blend ethanol into gasoline. We supply ethanol
to our customers either from our own ethanol production facilities located
within the regions we serve, or with ethanol procured in bulk from other
producers. In some cases, we have marketing agreements with other ethanol
producers to market all of the output of their facilities.
We
intend
to achieve our goal of becoming the leading marketer and producer of renewable
fuels in the Western United States in part by expanding our relationships with
customers and third-party ethanol producers to market higher volumes of ethanol
throughout the Western United States, by expanding our relationships with animal
feed distributors and end users to build local markets for wet distillers
grains, or WDG, the primary co-product of our ethanol production, and by
expanding the market for ethanol by continuing to work with state governments
to
encourage the adoption of policies and standards that promote ethanol as a
fuel
additive and ultimately as a primary transportation fuel. In addition, we intend
to achieve this goal in part by expanding our production capacity to 220 million
gallons of annual production capacity by mid 2008 and 420 million gallons of
annual production capacity by the end of 2010. We also intend to expand our
distribution infrastructure by expanding our ability to provide transportation,
storage and related logistical services to our customers throughout the Western
United States.
Corporate
Information
Our
principal executive offices are located at 400 Capitol Mall, Suite 2060,
Sacramento, California 95814. Our telephone number is (916) 403-2123. Our
Internet address is www.pacificethanol.net.
Information contained on, or that is accessible through, our website should
not
be considered to be part of this prospectus.
RISK
FACTORS
Except
for the historical information contained in this prospectus or incorporated
by
reference, this prospectus (and the information incorporated by reference in
this prospectus) contains forward-looking statements that involve risks and
uncertainties. Our actual results could differ materially from those discussed
here or incorporated by reference. Factors that could cause or contribute to
such differences include, but are not limited to, those discussed in the section
entitled “Risk Factors” contained in our most recent Annual Report on Form 10-K
and Quarterly Report on Form 10-Q filed with the Commission, as well as any
amendments thereto reflected in subsequent filings with the Commission, which
are incorporated herein by reference in their entirety (the “Pacific Ethanol
Risk Factors”).
Investment
in our securities involves risks. Prior to making a decision about investing
in
our securities, you should consider carefully the Pacific Ethanol Risk Factors,
together with all of the other information contained or incorporated by
reference in this prospectus and any prospectus supplement, including any
additional specific risks described in any prospectus supplement. Each of these
risk factors could adversely affect our business, operating results and
financial condition, which may result in the loss of all or part of your
investment.
Keep
these risk factors in mind when you read forward-looking statements contained
elsewhere or incorporated by reference in this prospectus and any prospectus
supplement. These statements relate to our expectations about future events.
Discussions containing forward-looking statements may be found, among other
places, in “Business” and “Management’s Discussion and Analysis of Financial
Condition and Results of Operations” incorporated by reference from our Annual
Reports on Form 10-K and our Quarterly Reports on Form 10-Q, as well as any
amendments thereto reflected in subsequent filings with the Commission. These
forward-looking statements are based largely on our expectations and projections
about future events and future trends affecting our business, and so are subject
to risks and uncertainties, including the risks and uncertainties described
below under “Special Note Regarding Forward-Looking Statements,” that could
cause actual results to differ materially from those anticipated in the
forward-looking statements.
SPECIAL
NOTE REGARDING FORWARD-LOOKING STATEMENTS
This
prospectus contains forward-looking statements, including statements concerning
future conditions in the ethanol marketing and production industries, and
concerning our future business, financial condition, operating strategies,
and
operational and legal risks. We use words like “believe,” “expect,” “may,”
“will,” “could,” “seek,” “estimate,” “continue,” “anticipate,” “intend,” “goal,”
“future,” “plan” or variations of those terms and other similar expressions,
including their use in the negative, to identify forward-looking statements.
You
should not place undue reliance on these forward-looking statements, which
speak
only as to our expectations as of the date of this prospectus. These
forward-looking statements are subject to a number of risks and uncertainties,
including those identified under the caption “Risk Factors” above, contained in
any applicable prospectus supplement and contained in our most recent Annual
Report on Form 10-K and our most recent Quarterly Report on Form 10-Q, as well
as any amendments thereto reflected in subsequent filings with the Commission.
Although we believe that the expectations reflected in these forward-looking
statements are reasonable, actual conditions in the ethanol marketing and
production industries, and actual conditions and results in our business, could
differ materially from those expressed in these forward-looking statements.
In
addition, none of the events anticipated in the forward-looking statements
may
actually occur. Any of these different outcomes could cause the price of our
common stock to decline substantially. Except as required by law, we undertake
no duty to update any forward-looking statement after the date of this
prospectus, either to conform any statement to reflect actual results or to
reflect the occurrence of unanticipated events.
USE
OF PROCEEDS
Unless
otherwise provided in the applicable prospectus supplement, we intend to use
the
net proceeds from the sale of our common stock under this prospectus for general
corporate purposes, including application of the proceeds to our ethanol plant
construction program and acquisitions of ethanol production assets. We will
set
forth in a prospectus supplement our intended use for the net proceeds received
from the sale of our common stock. Pending the application of the net proceeds,
we intend to invest the net proceeds in investment-grade, interest-bearing
securities. Our management will retain broad discretion as to the allocation
of
the net proceeds of any offering.
We
will
set forth in a prospectus supplement the following information regarding any
material dilution of the equity interests of investors purchasing securities
in
an offering under this prospectus:
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·
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the
net tangible book value per share of our equity securities before
and
after the offering;
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·
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the
amount of the increase in such net tangible book value per share
attributable to the cash payments made by the purchasers in the
offering;
and
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·
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the
amount of the immediate dilution from the public offering price
that will
be absorbed by such
purchasers.
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PLAN
OF DISTRIBUTION
We
may
sell our common stock offered pursuant to this prospectus and any accompanying
prospectus supplements:
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·
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to
or through one or more underwriters or
dealers;
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·
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through
any combination of these methods of sale.
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Our
common stock may be offered and sold:
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·
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at
a fixed price or prices, which may be changed;
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·
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at
market prices prevailing at the time of sale;
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·
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at
prices related to the prevailing market prices; or
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Any
of
the prices at which we sell common stock may be at a discount to market prices.
Broker-dealers may also receive from purchasers of the common stock compensation
that is not expected to exceed that customary in the types of transactions
involved.
Each
prospectus supplement, to the extent applicable, will describe the number of
shares and terms of the offering to which such prospectus supplement relates,
including:
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·
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any
over-allotment options under which underwriters, if any, may purchase
additional common stock;
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·
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the
name or names of any underwriters or agents with whom we have entered
into
an arrangement with respect to the sale of such common
stock;
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·
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the
public offering or purchase price of such common
stock;
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·
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any
underwriting discounts or commissions or agency fees or other items
constituting underwriter or agent
compensation;
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·
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any
discounts, commissions or concessions allowed or reallowed or paid
to
dealers;
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·
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any
securities exchanges or markets on which the securities may be
listed;
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·
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the
net proceeds we will receive from such sale;
and
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·
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any
underwriter or agent involved in the offer and sale of the common
stock
will be named in the applicable prospectus supplement.
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Underwritten
Offerings
If
underwriters are used in the sale of any common stock, the common stock will
be
acquired by the underwriters for their own account and may be resold from time
to time in one or more transactions described above. The common stock may be
either offered to the public through underwriting syndicates represented by
managing underwriters, or directly by underwriters. Underwriters may sell the
common stock to or through dealers, and such dealers may receive compensation
in
the form of discounts. Generally, the underwriters’ obligations to purchase the
common stock will be subject to conditions precedent and the underwriters will
be obligated to purchase all of the common stock if they purchase any of the
common stock. We may use underwriters with whom we have a material relationship.
We will describe any such underwriters in the applicable prospectus supplement,
naming the underwriter and the nature of any such relationship.
Direct
Sales and Sales Through Agents
We
may
sell common stock directly to institutional investors or others who may be
deemed to be underwriters within the meaning of the Securities Act with respect
to any sale of the common stock. We also may, from time to time, authorize
dealers or agents to offer and sell the common stock upon such terms and
conditions as may be set forth in the applicable prospectus supplement. In
order
to comply with the securities laws of certain states, if applicable, the common
stock offered will be sold in such jurisdictions only through registered or
licensed brokers or dealers. In addition, in certain states, securities may
not
be sold unless they have been registered or qualified for sale in the applicable
state or an exemption from the registration or qualification requirement is
available and is complied with. This prospectus, one or more prospectus
supplements, and the registration statement of which this prospectus is a part
may be used in conjunction with one or more other registration statements to
the
extent permitted by the Securities Act and the rules and regulations promulgated
thereunder.
Rights
Offerings
We
also
may sell directly to investors through subscription rights distributed to our
stockholders on a pro rata basis. In connection with any distribution of
subscription rights to stockholders, if all of the underlying securities are
not
subscribed for, we may sell the unsubscribed shares of common stock directly
to
third parties or may engage the services of one or more underwriters, dealers
or
agents, including standby underwriters, to sell the unsubscribed common stock
to
third parties.
Other
Offerings
Our
common stock may also be sold in one or more of the following transactions:
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·
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block
transactions (which may involve crosses) in which a broker-dealer
may sell
all or a portion of the shares as agent but may position and resell
all or
a portion of the block as principal to facilitate the transaction;
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·
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purchases
by a broker-dealer as principal and resale by the broker-dealer for
its
own account pursuant to a prospectus supplement;
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·
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ordinary
brokerage transactions and transactions in which a broker-dealer
solicits
purchasers;
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·
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sales
“at the market” to or through a market maker or into an existing trading
market, on an exchange or otherwise, for securities; and
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·
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sales
in other ways not involving a market maker or established trading
markets,
including direct sales to
purchasers.
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We
may
also enter into derivative transactions with third parties, or sell securities
not covered by this prospectus to third parties in privately negotiated
transactions. If the applicable prospectus supplement indicates, in connection
with those derivatives, the third parties may sell common stock covered by
this
prospectus and the applicable prospectus supplement, including in short sale
transactions. If so, the third party may use securities pledged by us or
borrowed from us or others to settle those sales or to close out any related
open borrowings of stock, and may use securities received from us in settlement
of those derivatives to close out any related open borrowings of stock. The
third party in such sale transactions will be an underwriter and will be
identified in the applicable prospectus supplement or in a post-effective
amendment.
Dealers
and agents that participate in the distribution of securities may be deemed
to
be underwriters under the Securities Act, and any discounts or commissions
received by them and any profit realized by them on the resale of securities
they realize may be deemed to be underwriting discounts and commissions under
the Securities Act.
Indemnification
Underwriters,
dealers and agents and remarketing firms may be entitled, under agreements
entered into with us, to indemnification against and contribution toward certain
civil liabilities, including liabilities under the Securities Act, or to
contribute with respect to payments that the agents, dealers, underwriters
or
remarketing firms may be required to make. Unless otherwise set forth in an
accompanying prospectus supplement, the obligations of any underwriters to
purchase any of our common stock will be subject to certain conditions
precedent.
Stabilization
In
connection with the offering of common stock under this prospectus, certain
underwriters, and selling group members and their respective affiliates, may
engage in transactions that stabilize, maintain or otherwise affect the market
price of our common stock. These transactions may include stabilization
transactions pursuant to which these persons may bid for or purchase common
stock for the purpose of stabilizing the market price.
The
underwriters in an offering of common stock may also create a “short position”
for their account by selling more common stock in connection with the offering
than they are committed to purchase from us. In that case, the underwriters
could cover all or a portion of the short position by either purchasing common
stock in the open market following completion of the offering of common stock
hereby or by exercising any over-allotment option granted to them by us. In
addition, the managing underwriter may impose “penalty bids” under contractual
arrangements with other underwriters, which means that it can reclaim from
an
underwriter (or any selling group member participating in the offering) for
the
account of the other underwriters, the selling concession for the common stock
that is distributed in the offering but subsequently purchased for the account
of the underwriters in the open market. Any of the transactions described in
this paragraph or comparable transactions that are described in any accompanying
prospectus supplement may result in the maintenance of the price of our common
stock at a level above that which might otherwise prevail in the open market.
None of the transactions described in this paragraph or in an accompanying
prospectus supplement are required to be taken by an underwriter and, if they
are undertaken, may be discontinued at any time.
Under
applicable rules and regulations under the Securities Exchange Act of 1934,
as
amended, or Exchange Act, under certain circumstances a person engaged in the
distribution of the common stock offered under this prospectus and an
accompanying prospectus supplement may not simultaneously engage in market
making activities with respect to our securities for a specified period prior
to
the commencement of such distribution.
Passive
Market-Making on NASDAQ
Any
underwriters who are qualified market makers on the NASDAQ Global Market may
engage in passive market making transactions in the common stock on the NASDAQ
Global Market in accordance with Rule 103 of Regulation M. Passive market makers
must comply with applicable volume and price limitations and must be identified
as passive market makers. In general, a passive market maker must display its
bid at a price not in excess of the highest independent bid for such security;
if all independent bids are lowered below the passive market making bid,
however, the passive market making bid must then be lowered when certain
purchase limits are exceeded.
Remarketing
Arrangements
Common
stock may also be offered and sold, if so indicated in an applicable prospectus
supplement, in connection with a remarketing upon their purchase, in accordance
with a redemption or repayment pursuant to their terms, or otherwise, by one
or
more remarketing firms, acting as principals for their own accounts or as agents
for us. Any remarketing firm will be identified and the terms of its agreements,
if any, with us and its compensation will be described in the applicable
prospectus supplement.
Other
Relationships
Underwriters,
dealers, agents and remarketing firms may engage in transactions with, or
perform services for, us and our affiliates in the ordinary course of business.
INCORPORATION
OF CERTAIN INFORMATION BY REFERENCE
The
Commission allows us to incorporate by reference information we file with it,
which means we can disclose important information to you by referring you to
documents we have filed with the Commission. The information incorporated by
reference is considered to be a part of this prospectus. We incorporate by
reference the documents listed below and any future filings we make with the
Commission under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act prior
to
the termination of the offering covered by this prospectus:
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·
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Our
Quarterly Report on Form 10-Q for the three months ended March 31,
2007,
as filed with the Commission on May 10,
2007;
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·
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Our
Current Report on Form 8-K for May 4, 2007, as filed with the Commission
on May 10, 2007 (File No.
0-21467);
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·
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Our
Proxy Statement for our 2007 Annual Meeting of Stockholders, as filed
with
the Commission on April 27, 2007;
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·
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Our
Amendment No. 1 to Annual Report on Form 10-K for the year ended
December
31, 2006, as filed with the Commission on April 23,
2007;
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·
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Our
Current Report on Form 8-K for April 13, 2007, as filed with the
Commission on April 13, 2007 (File No.
0-21467);
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·
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Our
Annual Report on Form 10-K for the year ended December 31, 2006,
as filed
with the Commission on March 12, 2007;
and
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·
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The
description of our capital stock contained in our Current Report
on Form
8-K for June 8, 2007, as filed with the Commission on June 8, 2007
(File No. 0-21467), including any amendments or reports filed for the
purpose of updating such
description.
|
Any
statement in a document incorporated or deemed to be incorporated by reference
in this prospectus is deemed to be modified or superseded to the extent that
a
statement contained in this prospectus, or in any other document we subsequently
file with the Commission, modifies or supersedes that statement. If any
statement is modified or superseded, it does not constitute a part of this
prospectus, except as modified or superseded.
Information
that is “furnished to” the Commission shall not be deemed “filed with” the
Commission and shall not be deemed incorporated by reference into this
prospectus or the registration statement of which this prospectus is a
part.
We
will
provide to each person, including any beneficial owner, to whom a prospectus
is
delivered, a copy of any or all of the information that has been incorporated
by
reference in this prospectus but not delivered with this prospectus. You may
request a copy of these filings, at no cost, by writing or telephoning us at
the
following address and phone number:
Pacific
Ethanol, Inc.
400
Capitol Mall, Suite 2060
Sacramento,
California 95814
Attention:
Secretary
Telephone:
(916) 403-2123
The
validity of the shares of common stock offered in this offering will be passed
upon for us by Rutan & Tucker, LLP, Costa Mesa, California.
The
financial statements incorporated by reference in this prospectus and
registration statement have been audited by Hein & Associates LLP, an
independent registered public accounting firm, to the extent and for the periods
indicated in their report and are incorporated by reference in reliance upon
such report and upon the authority of such Firm as experts in accounting and
auditing.
TRANSFER
AGENT AND REGISTRAR
The
transfer agent and registrar for our common stock is American Stock Transfer
& Trust Company. Its telephone number is (212) 936-5100.
We
have
filed a registration statement on Form S-3 with respect to the common stock
offered in this prospectus with the Commission in accordance with the Securities
Act, and the rules and regulations enacted under its authority. This prospectus,
which constitutes a part of the registration statement, does not contain all
of
the information included in the registration statement and its exhibits and
schedules. Statements contained in this prospectus regarding the contents of
any
document referred to in this prospectus are not necessarily complete, and in
each instance, we refer you to the full text of the document which is filed
as
an exhibit to the registration statement. Each statement concerning a document
which is filed as an exhibit should be read along with the entire document.
For
further information regarding us and the common stock offered in this
prospectus, we refer you to the registration statement and its exhibits and
schedules, which may be inspected without charge at the Commission’s Public
Reference Room at 100 F Street N.E., Washington, D.C. 20549. Please call the
Commission at (800) 732-0330 for further information on the Public
Reference Room.
The
Commission also maintains an Internet website that contains reports, proxy
and
information statements, and other information regarding issuers, such as us,
that file electronically with the Commission. The Commission’s website address
is http://www.sec.gov.
PACIFIC
ETHANOL, INC.
PROSPECTUS
_________________,
2007
We
have not authorized any dealer, salesman or other person to give any information
or to make any representation other than those contained in this prospectus
and
any accompanying supplement to this prospectus. You must not rely upon any
information or representation not contained in this prospectus or any
accompanying prospectus supplement. This prospectus and any accompanying
supplement to this prospectus do not constitute an offer to sell or the
solicitation of an offer to buy any securities other than the registered
securities to which they relate, nor do this prospectus and any accompanying
supplement to this prospectus constitute an offer to sell or the solicitation
of
an offer to buy securities in any jurisdiction to any person to whom it is
unlawful to make such offer or solicitation in such jurisdiction. The
information contained in this prospectus and any accompanying supplement to
this
prospectus is accurate as of the dates on their covers. When we deliver this
prospectus or a supplement or make a sale pursuant to this prospectus or a
supplement, we are not implying that the information is current as of the date
of the delivery or sale.
PART
II
PART
II: INFORMATION NOT REQUIRED IN PROSPECTUS
Item
14. Other
Expenses of Issuance and Distribution
The
following table sets forth all expenses to be paid by the Registrant in
connection with this offering. All amounts shown are estimates except for the
SEC registration fee.
|
SEC
registration fee
|
|
$
|
7,675
|
|
|
Legal
fees and expenses
|
|
|
100,000
|
|
|
Accounting
fees and expenses
|
|
|
25,000
|
|
|
Printing
expenses
|
|
|
25,000
|
|
|
Blue
sky fees and expenses
|
|
|
25,000
|
|
|
Transfer
agent and registrar fees and expenses
|
|
|
25,000
|
|
|
Miscellaneous
|
|
|
25,000
|
|
|
Total
|
|
$
|
232,675
|
|
Item
15. Indemnification
of Directors and Officers
Section
145 of the Delaware General Corporation Law authorizes a court to award, or
a
corporation’s board of directors to grant, indemnity to officers, directors and
other corporate agents in terms sufficiently broad to permit indemnification
under certain circumstances and subject to certain limitations, such as if
such
person acted in good faith and in a manner such person reasonably believed
to be
in or not opposed to the best interests of the Registrant, and with respect
to
any criminal proceeding, had no reasonable cause to believe such person’s
conduct was unlawful.
As
permitted to Section 145 of the Delaware General Corporation Law, the
Registrant’s certificate of incorporation includes a provision that eliminates
the personal liability of its directors of monetary damages for breach of their
fiduciary duty as directors.
In
addition, as permitted by Section 145 of the Delaware General Corporation Law,
the bylaws of the Registrant provide that:
| |
·
|
the
Registrant shall indemnify its directors and officers for serving
the
Registrant in those capacities or for serving other business enterprises
at the Registrant’s request, to the fullest extent permitted by Delaware
law;
|
| |
·
|
the
Registrant may, in its discretion, indemnify employees and agents
in those
circumstances where indemnification is not required by
law;
|
| |
·
|
the
Registrant is required to advance expenses, as incurred, to its directors
and officers in connection with defending a proceeding, except that
such
director or officer shall undertake to repay such advance if it is
ultimately determined that such person is not entitled to
indemnification;
|
| |
·
|
the
rights conferred in the bylaws are not exclusive, and the Registrant
is
authorized to enter into indemnification agreements with its directors,
officers, employees and agents and to obtain insurance to indemnify
such
persons; and
|
| |
·
|
the
Registrant may not retroactively amend the bylaw provisions to reduce
its
indemnification obligations to directors, officers, employees and
agents.
|
The
Registrant’s policy is to enter into separate indemnification agreements with
each of its directors and officers that provide the maximum indemnity allowed
to
directors and officers by Section 145 of the Delaware General Corporation
Law and which allow for additional procedural protections. The Registrant also
maintains directors’ and officers’ insurance to insure those persons against
various liabilities.
Registration
rights agreements between the Registrant and various investors provide for
cross-indemnification in connection with registration of the registration’s
common stock on behalf of those investors.
These
indemnification provisions and the indemnification agreements entered into
between the Registrant and its officers and directors may be sufficiently broad
to permit indemnification of the Registrant’s officers and directors for
liabilities (including reimbursement of expenses incurred) arising under the
Securities Act.
Item
16. Exhibits
The
following exhibits are included or incorporated herein by
reference.
|
Exhibit
Number
|
Description
|
|
1.1
|
Form
of Underwriting Agreement (*)
|
|
4.1
|
Form
of Stock Purchase Agreement (*)
|
|
5.1
|
Opinion
of Rutan & Tucker, LLP (**)
|
|
23.1
|
Consent
of Independent Registered Public Accounting Firm (**)
|
|
23.2
|
Consent
of Rutan & Tucker, LLP (contained in Exhibit 5.1)
(**)
|
|
24.1
|
Power
of Attorney (contained in the signature page hereto)
(**)
|
_______________
|
(*)
|
To
be filed by amendment or as an exhibit to a report under the Securities
Exchange Act of 1934, as amended, and incorporated herein by
reference.
|
Item
17. Undertakings
The
undersigned Registrant hereby undertakes:
(1) To
file,
during any period in which offers or sales are being made, a post-effective
amendment to this registration statement:
(i) To
include any prospectus required by Section 10(a)(3) of the Securities Act
of 1933;
(ii) To
reflect in the prospectus any facts or events arising after the effective date
of the registration statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement. Notwithstanding
the
foregoing, any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than a 20 percent change in the maximum
aggregate offering price set forth in the “Calculation of Registration Fee”
table in the effective registration statement; and
(iii) To
include any material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material change to
such information in the registration statement;
provided,
however,
that
paragraphs (1)(i), (1)(ii) and (1)(iii) do not apply if the information required
to be included in a post-effective amendment by those paragraphs is contained
in
reports filed with or furnished to the Commission by the Registrant pursuant
to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement, or is contained in
a
form of prospectus filed pursuant to Rule 424(b) that is part of the
registration statement
(2) That,
for
the purpose of determining any liability under the Securities Act of 1933,
each
such post-effective amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona
fide
offering
thereof.
(3) To
remove
from registration by means of a post-effective amendment any of the securities
being registered which remain unsold at the termination of the
offering.
The
undersigned Registrant hereby undertakes that for the purpose of determining
liability under the Securities Act of 1933 to any purchaser:
(1) Each
prospectus filed by the Registrant pursuant to Rule 424(b)(3) shall be deemed
to
be part of the registration statement as of the date the filed prospectus was
deemed part of and included in the registration statement; and
(2) Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5) or (b)(7)
as
part of a registration statement in reliance on Rule 430B relating to an
offering made pursuant to Rule 415(a)(1)(i), (vii), or (x), for the purpose
of
providing the information required by section 10(a) of the Securities Act of
1933 shall be deemed to be part of and included in the registration statement
as
of the earlier of the date such form of prospectus is first used after
effectiveness or the date of the first contract of sale of securities in the
offering described in the prospectus. As provided in Rule 430B, for liability
purposes of the issuer and any person that is at that date an underwriter,
such
date shall be deemed to be a new effective date of the registration statement
relating to the securities in the registration statement to which that
prospectus relates, and the offering of such securities at that time shall
be
deemed to be the initial bona fide offering thereof. Provided, however, that
no
statement made in a registration statement or prospectus that is part of the
registration statement or made in a document incorporated or deemed incorporated
by reference in to the registration statement or prospectus that is part of
the
registration statement will, as to a purchaser with a time contract of sale
prior to such effective date, supersede or modify any statement that was made
in
the registration statement or prospectus that was part of the registration
statement or made in any such document immediately prior to such effective
date;
or
That,
for
the purpose of determining liability of the Registrant under the Securities
Act
of 1933 to any purchaser in the initial distribution of the securities, the
undersigned Registrant undertakes that in a primary offering of securities
of
the undersigned Registrant pursuant to this registration statement, regardless
of the underwriting method used to sell the securities to the purchaser, if
the
securities are offered or sold to such purchaser by means of any of the
following communications, the undersigned Registrant will be a seller to the
purchaser and will be considered to offer or sell such securities to such
purchaser:
(1) Any
preliminary prospectus or prospectus of the undersigned Registrant relating
to
the offering required to be filed pursuant to Rule 424;
(2) Any
free
writing prospectus relating to the offering prepared by or on behalf of the
undersigned Registrant or used or referred to by the undersigned Registrant;
(3) The
portion of any other free writing prospectus relating to the offering containing
material information about the undersigned Registrant or its securities provided
by or on behalf of the undersigned Registrant; and
(4) Any
other
communication that is an offer in the offering made by the undersigned
Registrant to the purchaser.
The
undersigned Registrant hereby undertakes that, for purposes of determining
any
liability under the Securities Act of 1933, each filing of the Registrant’s
annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange
Act
of 1934 (and, where applicable, each filing of an employee benefit plan’s annual
report pursuant to Section 15(d) of the Securities Exchange Act of 1934)
that is incorporated by reference in the registration statement shall be deemed
to be a new registration statement relating to the securities being offered
therein, and the offering of such securities at that time shall be deemed to
be
the initial bona fide offering thereof.
Insofar
as indemnification for liabilities arising under the Securities Act of 1933
may
be permitted to directors, officers and controlling persons of the Registrant
pursuant to the provisions described in Item 15 hereof, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act of 1933, and is, therefore, unenforceable. In the event that
a
claim for indemnification against such liabilities (other than the payment
by
the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the Registrant certifies
that
it has reasonable grounds to believe that it meets all of the requirements
for
filing on Form S-3 and has duly caused this registration statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of
Sacramento, State of California on June 8, 2007.
| |
|
|
| |
PACIFIC
ETHANOL,
INC. |
|
|
|
| |
By: |
/s/ NEIL
M.
KOEHLER |
| |
|
| |
Neil
M.
Koehler
President and Chief Executive
Officer
|
POWER
OF ATTORNEY
KNOW
ALL
MEN BY THESE PRESENTS, that the undersigned officers and directors of Pacific
Ethanol, Inc., a Delaware corporation, which is filing a registration statement
on Form S-3 with the Securities and Exchange Commission under the provisions
of
the Securities Act of 1933, as amended, hereby constitute and appoint Neil
M.
Koehler, their true and lawful attorney-in-fact and agent, with full power
of
substitution and resubstitution, for him or her and in his or her name, place
and stead, in any and all capacities, to sign such registration statement and
any or all amendments to the registration statement, including a prospectus
or
an amended prospectus therein, and all other documents in connection therewith
to be filed with the Securities and Exchange Commission, granting unto said
attorney-in-fact and agent full power and authority to do and perform each
and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all interests and purposes as they might or could do
in
person, hereby ratifying and confirming all that said attorney-in-fact and
agents, or his substitute or substitutes, may lawfully do or cause to be done
by
virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, this Registration Statement
has been signed by the following persons in the capacities and on the dates
indicated.
|
Name
|
Title
|
Date
|
| |
|
|
|
/s/
WILLIAM L. JONES
William
L. Jones
|
Chairman
of the Board and Director
|
June
8, 2007
|
| |
|
|
|
/s/
NEIL M. KOEHLER
Neil
M. Koehler
|
President,
Chief Executive Officer and Director (principal executive
officer)
|
June
8, 2007
|
| |
|
|
|
/s/
DOUGLAS C. JEFFRIES
Douglas
C. Jeffries
|
Chief
Financial Officer (principal financial and accounting
officer)
|
June
8, 2007
|
| |
|
|
|
/s/
TERRY L. STONE
Terry
L. Stone
|
Director
|
June
8, 2007
|
| |
|
|
|
/s/
JOHN L. PRINCE
John
L. Prince
|
Director
|
June
8, 2007
|
| |
|
|
|
/s/
DOUGLAS L. KIETA
Douglas
L. Kieta
|
Director
|
June
8, 2007
|
| |
|
|
|
/s/
ROBERT P. THOMAS
Robert
P. Thomas
|
Director
|
June
8, 2007
|
| |
|
|
|
/s/
DANIEL A. SANDERS
Daniel
A. Sanders
|
Director
|
June
8, 2007
|
INDEX
TO EXHIBITS
|
Exhibit
Number
|
Description
|
|
5.1
|
Opinion
of Rutan & Tucker, LLP
|
|
23.1
|
Consent
of Independent Registered Public Accounting Firm
|
|
23.2
|
Consent
of Rutan & Tucker, LLP (contained in Exhibit 5.1)
|
|
24.1
|
Power
of Attorney (contained in the signature page to the registration
statement)
|
II-6