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Accounting
Branch Chief
Division
of Corporation Finance
Securities
and Exchange Commission
1
Station Place, N.E., Stop 4631
Washington,
D.C. 20549
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Re:
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Form
10-K/A for the Fiscal Year Ended December 31, 2008
Filed
April 22, 2009
File
No.
000-21467
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1.
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We
note that you have not filed the exhibits and schedules to the Credit
Agreement dated February 27, 2007 (Exhibit 10.73), and the exhibits (other
than Exhibit A) and schedules to the Debtor-In-Possession Credit Agreement
dated as of May 19, 2009 (Exhibit 10.4 to the quarterly report on Form
10-Q for the period ended June 30, 2009). Please advise. Refer to Item
601(b)(10) of Regulation S-K. Otherwise, please file complete copies of
these material agreements with your next Exchange Act
report.
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2.
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In
addition, it appears that a number of exhibits and agreements that you
have filed are not the final executed versions. As an example, we note
Exhibits 10.41 and 10.85. Please ensure that in future filings you will
file final versions of your material documents and
agreements.
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3.
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We
note your disclosure at the top of page 9 regarding your competitive
market analysis of executive compensation. Based on your current
disclosure, it appears that you benchmark your compensation,
which would required disclosure in accordance with Item 402(b)(2)(xiv) of
Regulation S-K. Question 118.05 of Regulation S-K Compliance and
Disclosure Interpretations, which are available on our website at http://www.sec.gov/divsions/corpfin/guidance/regs-kinterp.htm,
provides further guidance on when a registrant must identify the benchmark
in the filing. In future filings please make the appropriate disclosures,
including also your benchmarking components (such as the peer group of
companies). Reference such as the use of “proxy statements for
publicly-traded companies within the ethanol industry” are generic and
ambiguous.
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4.
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In
future filings, please disclose in more detail the factors taken in
consideration by the compensation committee in determining the number of
shares of restricted stock granted to each named executive officer in
April 8, 2008. Your discussion should provide a comprehensive analysis of
the substance of the compensation committee’s
decision.
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5.
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We
note footnote (7) disclosure to the Summary Compensation Table. Please
note that in accordance with Item 402(c)(2)(ix) of Regulation S-K and
pursuant to Instruction 4 of such item, to the extent that the amount of
perquisites and personal benefits exceeds the greater of $25,000 or 10% of
the total amount of perquisites and personal benefits, these perquisites
and personal benefits must be quantified and disclosed in a footnote to
the “All Other Compensation” column. To the extent applicable, in your
future filings please make the necessary changes to comply with these
disclosure requirements.
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6.
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In
accordance with Item 402(k)(3) of Regulation S-K, in future filings please
disclose the material factors upon which the compensation committee
determined the value and/or the size of the equity awards made to the
non-employee directors.
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Re:
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Pacific Ethanol,
Inc.
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●
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the Company is
responsible for the adequacy and accuracy of the disclosure in its
filings;
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●
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staff
comments or changes to disclosure in response to staff comments in the
filings
reviewed by the staff do not foreclose the Securities and Exchange
Commission
from taking any action with respect to the filing;
and
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●
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the
Company may not assert staff comments as a defense in any proceeding
initiated
by the Securities and Exchange Commission or any person under the
federal
securities laws of the United
States.
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By:
/s/ Neil M.
Koehler
Neil M. Koehler, Chief Executive Officer
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OFFICE:
916.403.2123
400
CAPITOL MALL, STE 2060
SACRAMENTO,
CA 95814
www.pacificethanol.net
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