AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 23, 2005
REGISTRATION NO. 333-106554
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
POST-EFFECTIVE
AMENDMENT NO. 1
TO
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
PACIFIC ETHANOL, INC.
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(Exact name of registrant as specified in its charter)
DELAWARE 41-2170618
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
3300 UNIVERSITY DRIVE, SUITE 201, CORAL SPRINGS, FLORIDA 33065
(Address of Principal Executive Offices) (Zip Code)
AMENDED 1995 INCENTIVE STOCK PLAN
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(Full title of the plan)
BARRY SIEGEL
PACIFIC ETHANOL, INC.
3300 UNIVERSITY DRIVE, SUITE 201
CORAL SPRINGS, FLORIDA 33065
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(Name and address of agent for service)
(954) 752-6161
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(Telephone number, including area code, of agent for service)
COPY TO:
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Lawrence Muenz, Esq.
Meritz & Muenz LLP
2021 O Street, N.W.
Washington, D.C. 20036
(202) 787-1964
EXPLANATORY NOTE
Pursuant to Rule 414 of the Securities Act of 1933, this Registration
Statement is filed by Pacific Ethanol, Inc., a Delaware corporation (hereinafter
the "Company" or the "Registrant"), the successor by merger to Accessity Corp.,
a New York corporation (hereinafter "Accessity" or the "Predecessor
Registrant"), to amend the Registration Statement filed by the Predecessor
Registrant on Form S-8 (Registration No. 333-106554) on June 26, 2003, relating
to the Amended 1995 Incentive Stock Plan of Predecessor Registrant (the "Prior
Registration Statement"). The Company hereby adopts the Prior Registration
Statement as its own Registration Statement for all purposes of the Securities
Act of 1933 and the Securities Exchange Act of 1934, and files this amendment to
set forth additional information necessary to reflect material changes made in
connection with or resulting from the succession by merger, or necessary to keep
the Prior Registration Statement from being misleading in any material respect,
and such amendment has become effective.
The common stock of Accessity traded on The Nasdaq SmallCap Market
under the symbol "ACTY." Upon consummation of the Reincorporation Merger,
subject to the approval of the initial listing application of PEI Delaware by
The Nasdaq Stock Market, the common stock of PEI Delaware is expected to trade
under the symbol "PEIX" on The Nasdaq SmallCap Market, without interruption, and
delivery of existing stock certificates of Accessity will constitute "good
delivery" of stock certificates representing shares of common stock in stock
transactions effected after the Reincorporation Merger (as defined below).
COMPARISON OF SHAREHOLDERS' RIGHTS
In connection with a reincorporation merger (the "Reincorporation
Merger") by Accessity with and into Pacific Ethanol, Inc., a Delaware
corporation ("PEI Delaware"), the holders of Accessity common stock became
stockholders of PEI Delaware, the rights and privileges of which are governed by
Delaware law, the certificate of incorporation and bylaws of PEI Delaware,
rather than by the New York Business Corporation Law (the "NYBCL") and the
articles of incorporation, as amended, and bylaws of Accessity. Set forth below
is a comparison of the material rights of shareholders and matters of corporate
governance before and after the Reincorporation Merger.
DELAWARE AND NEW YORK CORPORATE LAWS
The following discussion includes a summary of the material differences
between the rights of Accessity's shareholders before and after the
Reincorporation Merger. In most cases, the rights of shareholders before and
after the Reincorporation Merger are substantially similar, with changes having
been made to the corporate charter documents to maintain this substantial
similarity. In other cases, there are differences that might be considered
material, and these differences may be understood from the following comparison.
BOARD OF DIRECTORS
ACCESSITY. Accessity's bylaws provided that the board of directors
shall consist of at least three and no more than seven directors, with the exact
number to be set by the board of directors. The number was set at five. The
board was divided into three classes of directors: Class I, Class II and Class
III. The term of office of each class of directors was three years, with one
class expiring each year at Accessity's annual meeting of shareholders. The
classified board was intended to serve as an anti-takeover defense because it
operated to slow a change in control of Accessity's board of directors by
limiting the number of directors that were elected annually.
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The board of directors consisted of three directors, with two
vacancies. Each director was entitled to serve until his successor is elected
and qualified. Directors have been removed for or without cause by an
affirmative vote of a majority of the shares entitled to vote at a special or
annual meeting of the shareholders.
PEI DELAWARE. The certificate of incorporation of PEI Delaware provides
that the number of directors which shall constitute the board of directors of
PEI Delaware will be fixed from time to time by, or in the manner provided in,
the bylaws of PEI Delaware or in an amendment thereof duly adopted by the board
of directors or the stockholders of PEI Delaware. PEI Delaware's bylaws provide
that the board of directors shall consist of seven members. This number may be
changed by a duly adopted amendment to the certificate of incorporation or by an
amendment to the bylaws duly adopted by the vote or written consent of the
holders of a majority of the stock issued and outstanding and entitled to vote
or by resolution of a majority of the board of directors, except as may be
otherwise specifically provided by statute or by the restated certificate of
incorporation. No reduction of the authorized number of directors shall have the
effect of removing any director before that director's term of office expires.
Each director is entitled to serve until his successor is elected and qualified
or until his earlier death, resignation or removal. Directors may be removed for
or without cause by a majority of the stockholders entitled to vote at a special
or annual meeting of the stockholders.
All members of the board of directors immediately prior to the
Reincorporation Merger continued as members of the board of directors of PEI
Delaware. The term of such directors will expire upon the election and
qualification of each such director's successor at the 2005 annual meeting of
stockholders of PEI Delaware. PEI Delaware does not have a classified board and,
therefore, does not have the benefit or burden of any anti-takeover effect
relating to a classified board.
AUTHORIZED SHARES
ACCESSITY. Accessity's certificate of incorporation authorized
30,000,000 shares of common stock, $0.015 par value per share, and 1,000,000
shares of preferred stock, $0.01 par value per share, of which 1,000 shares had
been designated as Series A Convertible Preferred Stock (the "Series A Preferred
Stock") and 200,000 shares had been designated as Junior Participating Preferred
Stock. As of March 23, 2005, there were 2,939,414 shares of common stock issued
and outstanding, no shares of Series A Preferred Stock issued and outstanding,
and no shares of Junior Participating Preferred Stock outstanding.
PEI DELAWARE. The certificate of incorporation of PEI Delaware
authorizes 110,000,000 shares of capital stock consisting of 100,000,000 shares
of common stock, par value $0.001 per share, and 10,000,000 shares of preferred
stock, par value $0.001 per share. Prior to the consummation of the
Reincorporation Merger, PEI Delaware issued 100 shares of common stock to
Accessity. Upon consummation of the Reincorporation Merger, the 100 issued
shares were cancelled.
LIMITATION OF DIRECTOR LIABILITY
ACCESSITY. Article Ninth of Accessity's articles of incorporation, as
amended, provided that no provision of the articles of incorporation was
intended by the corporation to be construed as limiting, prohibiting, denying or
abrogating any of the general or specific powers or rights conferred under the
New York Business Corporation Law upon Accessity and upon its directors in
particular, the power of the Corporation to furnish indemnification to directors
in their capacities as are conferred by the NYBCL. Additionally, under Section
717 of the NYBCL, directors are required to discharge their duties, including
their duties as a member of any committee of the board upon which they may
serve, in good faith and with that degree of care which an ordinarily prudent
person in a like position would use under similar circumstances.
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PEI DELAWARE. The certificate of incorporation of PEI Delaware provides
that directors of PEI Delaware will not be liable personally to PEI Delaware or
the stockholders of PEI Delaware for monetary damages for breach of fiduciary
duty as a director except for liability: (a) for any breach of the director's
duty of loyalty to the corporation or its stockholders, (b) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (c) under Section 174 of the DGCL for unlawful payment of a
dividend or approval of an unlawful stock redemption or repurchase, or (d) for
any transaction from which the director derived any improper personal benefit.
Additionally, if the DGCL is subsequently amended, then the liability of a
director of PEI Delaware shall be eliminated or limited to the fullest extent
permitted by the DGCL, as so amended. This provision, which is substantially
similar to Section 719 of the NYBCL that was applicable to Accessity, protects
directors of PEI Delaware against personal liability for monetary damages from
breaches of their duty of care. Under Delaware law, absent adoption of this
provision in the certificate of incorporation of PEI Delaware, directors can be
held liable for gross negligence in connection with decisions made on behalf of
the corporation in the performance of their duty of care, but may not be liable
for simple negligence.
INDEMNIFICATION
ACCESSITY. Sections 722 and 726 et seq., of the NYBCL provide that
Accessity had the right to indemnify, to purchase indemnity insurance for, and
to pay and advance expenses to directors, officers and other persons who are
eligible for, or entitled to, such indemnification, payments or advances, by
being made or threatened to be made a party to an action or a proceedings,
whether criminal, civil, administrative or investigative by reason of the fact
that he is or was a director, officer or employee of Accessity, or served any
other enterprise as director or officer or employee at the request of Accessity.
PEI DELAWARE. Under Section 145 of the DGCL, directors, officers,
employees and other individuals may be indemnified against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement in connection
with specified actions, suits or proceedings, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the
corporation, including a derivative action, a "Corporation Action") if they
acted in good faith and in a manner they reasonably believed to be in, or not
opposed to, the best interests of the corporation, and, regarding any criminal
action or proceeding, had no reasonable cause to believe their conduct was
unlawful. A similar standard is applicable in the case of Corporation Actions,
except that indemnification only extends to expenses (including attorneys' fees)
incurred in connection with the defense or settlement of such actions. The DGCL
further requires court approval before there can be any indemnification where
the person seeking indemnification has been found liable to the corporation. To
the extent that a director or officer is otherwise eligible to be indemnified is
successful on the merits of any claim or defense described above,
indemnification for expenses (including attorneys' fees) actually and reasonably
incurred is mandated by the DGCL.
The provisions regarding indemnification in the bylaws of PEI Delaware
are substantially similar to those in the Accessity bylaws. The certificate of
incorporation and bylaws of PEI Delaware also provides that PEI Delaware may
indemnify, in addition to a person who is or was a director, officer, employee
or agent of PEI Delaware, or is or was serving at the request of PEI Delaware as
a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, a person who is or was a director,
officer, employee or agent of any resulting corporation or any constituent
corporation (including any constituent of a constituent) absorbed in a
consolidation or merger with PEI Delaware which, if its separate existence had
continued, would have had power and authority to indemnify its directors,
officers, employees or agents, so that any person who is or was a director,
officer, employee or agent of such constituent corporation, or is or was serving
at the request of such constituent corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise, shall stand in the same position with respect to the resulting or
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surviving corporation as he would have with respect to such constituent
corporation if its separate existence had continued. The right to
indemnification is not exclusive of any other right which any person may have or
acquire under any statute, any provision of the certificate of incorporation or
bylaws of PEI Delaware, or otherwise.
ANTI-TAKEOVER STATUTES/PROVISIONS
ACCESSITY. Section 912 of the NYBCL prohibits, in general, any business
combination, such as a merger or consolidation, between a New York corporation
and an "interested shareholder" (which is defined generally as any owner of 20%
or more of the corporation's outstanding voting stock) for five years after the
date on which such shareholder became an interested shareholder unless the
business combination or the stock acquisition which caused the person to become
an interested shareholder was approved in advance by the corporation's board of
directors. This provision of the NYBCL is effective even if all parties should
subsequently decide that they wish to engage in the business combination.
Following the five-year moratorium period, the New York corporation may engage
in certain business combinations with an interested shareholder only if, among
other things, (a) the business combination is approved by the affirmative vote
of the holders of a majority of the outstanding voting shares not beneficially
owned by the interested shareholder proposing the business combination, or (b)
the business combination meets certain criteria designed to ensure that the
remaining shareholders receive fair consideration for their shares.
Neither Accessity's articles of incorporation, as amended, nor bylaws
specifically addressed the foregoing. Accessity did not opt out of any of the
foregoing anti-takeover provisions.
PEI DELAWARE. Section 203 of the DGCL is similar, but not identical, to
Section 912 of the NYBCL. Section 203 of the DGCL, which applies to PEI
Delaware, regulates transactions with major stockholders after they become major
stockholders. Section 203 of the DGCL prohibits a Delaware corporation from
engaging in mergers, dispositions of ten percent or more of its assets, certain
issuances of stock and other transactions ("business combinations") with a
person or group that owns 15% or more of the voting stock of the corporation (an
"interested stockholder") for a period of three years after the interested
stockholder crosses the 15% threshold. These restrictions on transactions
involving an interested stockholder do not apply if (a) before the interested
stockholder owned 15% or more of the voting stock, the board of directors
approved the business combination or the transaction that resulted in the person
or group becoming an interested stockholder, (b) in the transaction that
resulted in the person or group becoming an interested stockholder, the person
or group acquired at least 85% of the voting stock other than stock owned by
directors who are also officers and certain employee stock plans, or (c) after
the person or group became an interested stockholder, the board of directors and
at least two-thirds of the voting stock other than stock owned by the interested
stockholder approves the business combination at a meeting.
The restrictions contained in Section 203 of the DGCL do not apply to
PEI Delaware in connection with the Reincorporation Merger because, under
Section 203(b)(4) of the DGCL, such restrictions generally do not apply where a
corporation does not have a class of voting stock that is (i) listed on a
national securities exchange, (ii) authorized for quotation on The Nasdaq Stock
Market, or (iii) held of record by more than 2,000 stockholders.
PREFERRED STOCK
ACCESSITY. Accessity's articles of incorporation, as amended,
authorized the board of directors to issue preferred stock. Section 502 of the
NYBCL provides that if more than one class of shares is authorized by the
articles of incorporation, the articles of incorporation must prescribe the
number of shares in each class and a distinguishing designation for each class
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and before the issuance of shares of a class, the preferences, limitations, and
relative rights of each class must be described in the articles of
incorporation. All shares of a class must have preferences, limitations, and
relative rights identical with those of other shares of the same class except to
the extent otherwise permitted by the NYBCL.
PEI DELAWARE. The certificate of incorporation of PEI Delaware
authorizes the board of directors of PEI Delaware to issue up to 10,000,000
shares of preferred stock and to determine the preferences, limitations and
relative rights of any class or series of PEI Delaware preferred stock prior to
issuance.
CUMULATIVE VOTING
Section 618 of the NYBCL and Section 214 of the DGCL provide that
cumulative voting rights, in respect of the election of directors, will only
exist if provided for in the corporation's articles/certificate of
incorporation. Neither Accessity's articles of incorporation, as amended, nor
the certificate of incorporation of PEI Delaware provide for cumulative voting
rights in the election of directors.
ACTION WITHOUT A MEETING
ACCESSITY. Under Section 615 of the NYBCL, any action required or
permitted to be taken at a shareholders' meeting may be taken without a meeting
only by the unanimous written consent signed by all of the shareholders entitled
to vote on such action.
PEI DELAWARE. Section 228 of the DGCL permits any action required or
permitted to be taken at a stockholders' meeting to be taken by written consent
signed by the holders of the number of shares that would have been required to
effect the action at an actual meeting of the stockholders at which all shares
were present and voted. Section 228 of the DGCL will govern stockholders rights
in PEI Delaware.
ANNUAL MEETINGS
ACCESSITY. Section 602 of the NYBCL requires that a corporation hold an
annual meeting of its shareholders. Accessity's bylaws provide that an annual
meeting of its shareholders shall be held five months following the close of the
company's fiscal year to elect directors and transaction such other business as
may be properly come before the meeting.
PEI DELAWARE. Section 211(d) of the DGCL authorizes the board of
directors or those persons authorized by the corporation's certificate of
incorporation or bylaws to call an annual meeting of the corporation's
stockholders. The bylaws of PEI Delaware provide that an annual meeting may be
called by the board of directors, the chairman of the board, the president, the
secretary, any two officers of PEI Delaware, and by the secretary of PEI
Delaware at the request of not less than 10% of the total voting power of all
outstanding securities of PEI Delaware then entitled to vote or as otherwise may
be required by law.
VOTING, APPRAISAL RIGHTS AND CORPORATE REORGANIZATIONS
ACCESSITY. The NYBCL generally requires a majority vote of shareholders
to approve a plan of merger or share exchange unless the articles of
incorporation or board requires a greater vote. Section 910 of the NYBCL does
not provide for dissenters' rights for a merger or plan of share exchange by a
corporation the shares of which are listed on a national securities exchange or
designated as a national market system security on an interdealer quotation
system by the National Association of Securities Dealers, Inc.
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PEI DELAWARE. The DGCL generally requires a majority vote of
stockholders to approve a merger, sale of assets or similar reorganization
transaction. Section 262 of the DGCL does not provide for dissenters' rights of
appraisal for (a) the sale, lease or exchange of all or substantially all of the
assets of a corporation, (b) a merger by a corporation, the shares of which are
either listed on a national securities exchange or held by more than 2,000
stockholders if such stockholders receive shares of the surviving corporation or
of a listed or widely held corporation, or (c) certain mergers not requiring
stockholder approval.
AMENDMENT TO CERTIFICATE/ARTICLES OF INCORPORATION
ACCESSITY. Except as otherwise provided in the NYBCL, an amendment to
the articles of incorporation must be approved by (a) a majority of the votes
cast when a quorum is present, unless shareholders have dissenters' rights on
the amendment, and (b) a majority of the outstanding shares entitled to vote, if
shareholders have dissenters' rights on the amendment.
PEI DELAWARE. The DGCL provides that an amendment to the certificate of
incorporation must be approved by a majority of the outstanding stock entitled
to vote. The certificate of incorporation of PEI Delaware reserves the right of
PEI Delaware to amend, alter, change or repeal any provision contained in its
certificate of incorporation, in the manner now or hereafter prescribed by
statute.
AMENDMENT TO BYLAWS
ACCESSITY. Article IX, Section 1 of Accessity's bylaws provided that
the bylaws may be amended by an affirmative vote of two-thirds of all shares
eligible to be cast on such amendment or, if the board of directors recommends
such an amendment, then only a majority of all shares eligible to be cast on
such amendment is required.
PEI DELAWARE. Section 109 of the DGCL places the power to adopt, amend
or repeal bylaws in the corporation's stockholders, but permits the corporation,
in its certificate of incorporation, also to vest such power in the board of
directors. Although the board of directors is vested with such authority
pursuant to the certificate of incorporation of PEI Delaware, the stockholders'
power to make, repeal, alter, amend and rescind bylaws will remain unrestricted.
The articles of incorporation, as amended, and bylaws of Accessity and
the articles of incorporation and bylaws of PEI Delaware are available for
inspection by stockholders of the Registrant at the principal offices of
Accessity located at 3300 University Drive, Suite 201, Coral Springs, Florida
33065.
PREEMPTIVE RIGHTS
ACCESSITY. NYBCL Section 622 provides that the shareholders of a
corporation do not have a preemptive right to acquire a corporation's unissued
shares except to the extent the articles of incorporation so provide.
Accessity's articles of incorporation, as amended, did not provide Accessity's
shareholders with preemptive rights.
PEI DELAWARE. Under Section 102 of the DGCL, no statutory preemptive
rights will exist, unless a corporation's certificate of incorporation specifies
otherwise. The certificate of incorporation of PEI Delaware does not provide for
any such preemptive rights.
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DIVIDEND RIGHTS
ACCESSITY. The NYBCL does not permit dividend distributions if, after
giving effect to the proposed dividend, (a) the corporation would be unable to
pay its debts as they become due in the usual course of business, or (b) the
corporation's total assets would be less than the sum of its total liabilities
plus (unless the articles of incorporation permit otherwise) the amount that
would be needed, if the corporation were to be dissolved at the time of
distribution, to satisfy the preferential rights (if any) of shareholders whose
preferential rights are superior to those of shareholders receiving the
distribution.
PEI DELAWARE. Delaware corporations may pay dividends out of the excess
of the net assets of the corporation (the "Surplus") less the consideration
received by the corporation for any shares of its capital stock (the "Capital")
or, if there is no Surplus, out of net profits for the fiscal year in which
declared and/or the preceding fiscal year. Section 170 of the DGCL also provides
that dividends may not be paid out of net profits if, after the payment of the
dividend, Capital is less than the Capital represented by the outstanding stock
of all classes having a preference upon the distribution of assets.
Pursuant to the consummation of the Reincorporation Merger, the Rights
Agreement dated December 28, 1998 between Accessity and North American Transfer
Co., as Rights Agent, was terminated and, as provided in the certificate of
incorporation and bylaws of Pacific Ethanol, Inc., a Delaware corporation, the
surviving corporation in the Reincorporation Merger, no shares of preferred
stock are designated as Preferred Stock.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents containing the information specified in Part I, Items 1
and 2, will be sent or given to employees in accordance with Form S-8 and Rule
428(b)(1) of the Securities Act of 1933, as amended (the "Securities Act"). We
will furnish without charge to each employee to whom information is required to
be delivered, upon written or oral request, a copy of each document incorporated
by reference in Item 3 of Part II of this Registration Statement, which
documents are incorporated by reference in the Section 10(a) prospectus, and any
other documents required to be delivered to them under Rule 428(b) of the
Securities Act. Requests should be directed to Pacific Ethanol, Inc., 3300
University Drive, Suite 201, Coral Springs, Florida 33065, Attention: Secretary.
Pacific Ethanol's telephone number is (954) 752-6161.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. Incorporation of Documents by Reference.
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We incorporate the following documents by reference in this
registration statement:
(a) Our annual report on Form 10-KSB for the fiscal year ended December
31, 2004 (File No. 000-21467), filed with the Securities and Exchange Commission
on March 17, 2005.
All reports and other documents we subsequently filed after the date of
this registration statement under Sections 13(a), 13(c), 14 and 15(d) of the
Exchange Act, prior to the filing of a post-effective amendment that indicates
that all securities offered under this registration statement have been sold, or
which deregisters all securities then remaining unsold, shall be deemed
incorporated by reference into this registration statement and shall be a part
of this registration statement from the date of filing such documents.
For purposes of this registration statement, any document or any
statement contained in a document incorporated or deemed to be incorporated
herein by reference shall be deemed to be modified or superseded to the extent
that a subsequently filed document or a statement contained herein or in any
other subsequently filed document, which also is or is deemed to be incorporated
herein by reference modifies or supersedes such document or such statement in
such document. Any statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this registration
statement.
Notwithstanding the above, 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 Registration Statement.
ITEM 4. Description of Securities.
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GENERAL
Our Certificate of Incorporation currently authorizes us to issue
100,000,000 shares of common stock, $.001 par value per share, and 10,000,000
shares of preferred stock, $.001 par value per share. We currently have
2,939,414 shares of common stock outstanding. All outstanding shares of common
stock are fully paid and nonassessable.
COMMON STOCK
The following summarizes the rights of holders of our common stock:
o each holder of common stock is entitled to one vote per share on
all matters to be voted upon by the stockholders;
o subject to preferences that may apply to shares of preferred stock
that may be outstanding, the holders of common stock are entitled to receive
such lawful dividends as may be declared by our board of directors;
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o upon liquidation, dissolution or winding up, the holders of shares
of common stock are entitled to receive a pro rata portion of all of our assets
remaining for distribution after satisfaction of all liabilities and the payment
of any liquidation preference of any preferred stock that may be outstanding;
o there are no redemption or sinking fund provisions applicable to
our common stock; and
o there are no preemptive or conversion rights applicable to our
common stock.
PREFERRED STOCK
Our board of directors is authorized to issue from time to time, in one
or more designated series, any or all of our authorized but unissued shares of
preferred stock with dividend, redemption, conversion, exchange, voting and
other provisions as may be provided in that particular series. The issuance need
not be approved by our common stockholders.
Issuance of a new series of preferred stock, while providing desirable
flexibility in connection with possible acquisitions and other corporate
purposes, could have the effect of entrenching our board of directors and making
it more difficult for a third-party to acquire, or discourage a third-party from
acquiring, a majority of our outstanding voting stock. We have no present plans
to issue any shares of or to designate any series of preferred stock.
ITEM 5. Interests of Named Experts and Counsel.
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Not Applicable.
ITEM 6. Indemnification of Directors and Officers.
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Section 145 of the Delaware General Corporation Law permits a
corporation to indemnify its directors and officers against expenses, judgments,
fines and amounts paid in settlement actually and reasonably incurred in
connection with a pending or completed action, suit or proceeding if the officer
or director acted in good faith and in a manner the officer or director
reasonably believed to be in the best interests of the corporation.
Our certificate of incorporation provides that, except in certain
specified instances, our directors shall not be personally liable to us or our
stockholders for monetary damages for breach of their fiduciary duty as
directors.
In addition, our certificate of incorporation and bylaws obligate us to
indemnify our directors and officers against expenses and other amounts
reasonably incurred in connection with any proceeding arising from the fact that
such person is or was an agent of ours. Our bylaws also authorize us to purchase
and maintain insurance on behalf of any of our directors or officers against any
liability asserted against that person in that capacity, whether or not we would
have the power to indemnify that person under the provisions of the Delaware
General Corporation Law.
To the extent indemnification for liabilities arising under the
Securities Act of 1933, as amended, may be permitted to directors, officers and
controlling persons of Pacific Ethanol under the above provisions, or otherwise,
we have 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, as amended, and is, therefore, unenforceable.
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ITEM 7. Exemption from Registration Claimed.
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Not Applicable.
ITEM 8. Exhibits.
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4.1 Amended 1995 Incentive Stock Plan (1)
23.1 Consent of Nussbaum Yates & Wolpow, P.C.
24.1 Power of Attorney (contained on the signature pages to this
Registration Statement)
________
(1) Filed as Exhibit 10.7 to the Registrant's Form 10-KSB for the
fiscal year ended December 31, 2002 field with the Securities and
Exchange Commission on March 31, 2003.
ITEM 9. Undertakings.
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We hereby undertake:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement (except that
paragraphs (i) and (ii) below shall not apply if the information required by
paragraphs (i) and (ii) below is contained in periodic reports filed by us with
the Commission pursuant to Section 13 or Section 15(d) of the Exchange Act that
are incorporated by reference in this Registration Statement):
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act;
(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 this 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.
(2) For determining liability under the Securities Act, to treat each
post-effective amendment as a new registration statement of the securities
offered, and the offering of the securities at that time to be the initial bona
fide offering.
(3) To file a post-effective amendment to remove from registration any
of the securities that remain unsold at the end of the offering.
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SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Coral Springs, State of Florida, on March 23, 2005.
PACIFIC ETHANOL, INC.,
a Delaware corporation
By: /s/ BARRY SIEGEL
---------------------------------
Barry Siegel, President and Chief
Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Neil Koehler his attorney-in-fact and
agent, with the power of substitution and resubstitution, for him and in his
name, place or stead, in any and all capacities, to sign any amendment to this
Registration Statement on Form S-8, and to file such amendments, together with
exhibits and other documents in connection therewith, with the Securities and
Exchange Commission, granting to such 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 as he might or could do in
person, and ratifying and confirming all that the attorney-in-fact and agent, or
his substitute or substitutes, may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
date indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ BARRY SIEGEL Chairman of the Board, President March 23, 2005
----------------------- and Chief Executive Officer
Barry Siegel (Principal Executive Officer)
/s/ PHILIP KART Senior Vice President, Secretary March 23, 2005
----------------------- and Chief Financial Officer
Philip Kart (Principal Financial Officer)
/s/ KENNETH J. FRIEDMAN Director March 23, 2005
-----------------------
Kenneth J. Friedman
/s/ BRUCE S. UDELL Director March 23, 2005
-----------------------
Bruce S. Udell
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EXHIBIT INDEX
23.1 Consent of Nussbaum Yates & Wolpow, P.C.
24.1 Power of Attorney (contained on the signature pages to this
Registration Statement)
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