As
filed with the Securities and Exchange Commission on July 27,
2007
Registration
No. 333-143617
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
AMENDMENT
NO. 1 TO
FORM
S-3
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
(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)
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(Primary
Standard Industrial
Classification
Code Number)
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(I.R.S.
Employer
Identification
No.)
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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
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Title
of Each Class of Securities to be Registered(1)
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Amount
to
be
Registered(2)
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Proposed
Maximum
Offering
Price
Per
Unit(2)(3)
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Proposed
Maximum
Aggregate
Offering
price(2)(3)
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Amount
of
Registration
Fee(2)(4)
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Common
Stock, $.001 par value
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$ ―
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$ ―
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$ ―
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$ ―
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Warrants
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$ ―
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$ ―
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$ ―
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$ ―
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Total
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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)
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An
indeterminate number of shares of common stock and an indeterminate
number
of warrants to purchase common stock are being registered hereunder,
but
in no event will the aggregate offering price of all securities issued
from time to time pursuant to this registration statement exceed
$250,000,000. Any securities registered hereunder may be sold
separately or as units with other securities registered
hereunder. The securities registered also include such
indeterminate number of shares of common stock as may be issued upon
exercise of warrants or pursuant to the antidilution provisions of
such
warrants. 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.
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(2)
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Not
required to be included or specified per security in accordance with
General Instruction II.D of Form
S-3.
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(3)
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The
proposed maximum offering price per unit and aggregate offering price
per
class of security will be determined from time to time by the Registrant
in connection with the issuance by the Registrant of the securities
registered pursuant to this registration
statement.
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(4)
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A
registration fee of $7,675 was paid with the initial filing of this
registration statement. The registration fee was calculated in
accordance with Rule 457(o) under the Securities
Act.
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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 JULY 27, 2007
$250,000,000
PACIFIC
ETHANOL, INC.
Common
Stock
Warrants
We
may
from time to time offer and sell common stock and warrants to purchase our
common stock in one or more offerings for an aggregate initial offering price
of
$250,000,000. We may offer and sell these securities separately or as units,
which may include combinations of the securities. This prospectus describes
the
general manner in which our securities 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 July 26, 2007, the closing sale price of our common
stock on the NASDAQ Global Market was $12.76 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 securities involves risks. See “Risk Factors” on page
5. 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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12
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Where
You Can Find Additional Information
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12
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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
and warrants to purchase our common stock in one or more offerings up to an
aggregate dollar amount of $250,000,000. Each time we sell any securities 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 securities 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 securities. A prospectus supplement, which we will provide to you
each time we offer securities, will provide the names of any underwriters,
dealers, or agents involved in the sale of the securities, 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 securities 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
securities 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 securities 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
securities. 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 securities 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
securities 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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at
prices related to the prevailing market prices;
or
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Any
of
the prices at which we sell securities may be at a discount to market prices.
Broker-dealers may also receive from purchasers of the securities 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 and
terms of the securities to which such prospectus supplement relates,
including:
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any
over-allotment options under which underwriters, if any, may purchase
additional securities;
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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
securities;
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the
public offering or purchase price of such
securities;
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any
underwriting discounts or commissions or agency fees or other items
constituting underwriter or agent
compensation;
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any
discounts, commissions or concessions allowed or reallowed or paid
to
dealers;
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any
securities exchanges or markets on which the securities may be
listed;
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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 securities
will
be named in the applicable prospectus
supplement.
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Underwritten
Offerings
If
underwriters are used in the sale of any securities, the securities 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 securities may be
either offered to the public through underwriting syndicates represented by
managing underwriters, or directly by underwriters. Underwriters may sell the
securities to or through dealers, and such dealers may receive compensation
in
the form of discounts. Generally, the underwriters’ obligations to purchase the
securities will be subject to conditions precedent and the underwriters will
be
obligated to purchase all of the securities if they purchase any of the
securities. 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 securities 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 those securities. We also may, from time to time, authorize dealers
or
agents to offer and sell the securities 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 securities 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 securities directly to third
parties or may engage the services of one or more underwriters, dealers or
agents, including standby underwriters, to sell the unsubscribed securities
to
third parties.
Other
Offerings
Our
securities may also be sold in one or more of the following
transactions:
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block
transactions (which may involve crosses) in which a broker-dealer
may sell
all or a portion of the securities as agent but may position and
resell
all or a portion of the block as principal to facilitate the
transaction;
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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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ordinary
brokerage transactions and transactions in which a broker-dealer
solicits
purchasers;
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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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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 securities 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 securities will be subject to certain conditions
precedent.
Stabilization
In
connection with the offering of securities 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 the applicable securities. These transactions may include stabilization
transactions pursuant to which these persons may bid for or purchase securities
for the purpose of stabilizing the market price.
The
underwriters in an offering of securities may also create a “short position” for
their account by selling more securities 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 securities
in
the open market following completion of the offering of securities 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 securities 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
securities 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 securities 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 our 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
The
securities 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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Our
Current Report on Form 8-K for July 18, 2007, as filed with the Commission
on July 23, 2007 (File No.
000-21467);
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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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|
|
·
|
Our
Current Report on Form 8-K for May 4, 2007, as filed with the Commission
on May 10, 2007;
|
|
|
·
|
Our
Proxy Statement for our 2007 Annual Meeting of Stockholders, as filed
with
the Commission on April 27, 2007;
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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;
|
|
|
·
|
Our
Current Report on Form 8-K for April 13, 2007, as filed with the
Commission on April 13, 2007;
|
|
|
·
|
Our
Annual Report on Form 10-K for the year ended December 31, 2006,
as filed
with the Commission on March 12, 2007;
and
|
|
|
·
|
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,
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 securities offered in this offering will be passed upon for
us
by Rutan & Tucker, LLP, Costa Mesa, California.
The
financial statements and management’s report on the effectiveness of internal
control over financial reporting 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.
The
report of Hein & Associates LLP dated March 7, 2007, on management’s
assessment of the effectiveness of internal control over financial reporting
and
the effectiveness of internal control over financial reporting as of December
31, 2006, expressed an opinion that Pacific Ethanol, Inc. had not maintained
effective internal control over financial reporting as of December 31, 2006,
based on criteria established in Internal Control—Integrated Framework issued by
the Committee of Sponsoring Organizations of the Treadway Commission
(COSO).
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 securities
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 securities 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
|
|
|
|
|
|
Total
|
|
$ |
|
|
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:
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|
·
|
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 Registrant’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 Securities Purchase Agreement (*)
|
|
4.2
|
|
Form
of Common Stock Purchase Warrant (*)
|
|
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)
(**)
|
_______________
|
(*)
|
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 July 27, 2007.
| |
PACIFIC
ETHANOL, INC.
|
|
| |
|
|
|
| |
|
|
|
|
|
By:
|
/s/ NEIL
M. KOEHLER |
|
| |
|
Neil
M. Koehler
President
and Chief Executive Officer
|
|
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.
|
|
|
|
|
|
| |
|
|
|
|
|
*
William
L. Jones
|
|
Chairman
of the Board and Director
|
|
July
27, 2007
|
| |
|
|
|
|
|
/s/
NEIL M. KOEHLER
Neil
M. Koehler
|
|
President,
Chief Executive Officer and Director (principal executive
officer)
|
|
July
27, 2007
|
| |
|
|
|
|
|
/s/
JOHN T. MILLER
John
T. Miller
|
|
Chief
Operating Officer and Acting Chief Financial Officer (principal financial
and accounting officer)
|
|
July
27, 2007
|
| |
|
|
|
|
|
*
Terry
L. Stone
|
|
Director
|
|
July
27, 2007
|
| |
|
|
|
|
|
*
John
L. Prince
|
|
Director
|
|
July
27, 2007
|
| |
|
|
|
|
|
*
Douglas
L. Kieta
|
|
Director
|
|
July
27, 2007
|
| |
|
|
|
|
|
*
Robert
P. Thomas
|
|
Director
|
|
July
27, 2007
|
| |
|
|
|
|
|
*
Daniel
A. Sanders
|
|
Director
|
|
July
27, 2007
|
| |
|
|
|
|
|
*By:
/s/ NEIL M. KOEHLER
Neil
M. Koehler
Attorney
in Fact
|
|
|
|
July
27, 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)
|
|