The information in this preliminary prospectus supplement is not complete and may be changed. This preliminary prospectus supplement and the accompanying prospectus are not offers to sell these securities and are not soliciting an offer to buy these securities in any jurisdiction where the offer or sale is not permitted.
|
Filed
Pursuant to Rule 424(b)(5)
Registration No. 333-180731
PROSPECTUS SUPPLEMENT
(To Prospectus dated May 17, 2012)
Subject
To Completion, Dated
April 2, 2014
PACIFIC ETHANOL, INC.
Shares
Common Stock
$ per share
We are offering
shares of our common stock, $0.001 par value, pursuant to this prospectus supplement and the accompanying prospectus.
Our common stock
is listed on The NASDAQ Capital Market under the symbol “PEIX.” On April 1, 2014, the last reported sales price of
our common stock on The NASDAQ Capital Market was $17.90 per share.
Investing
in our common stock involves certain risks. See “Risk Factors” beginning on page S-5 of this prospectus supplement,
the risk factors beginning on page 4 of the accompanying prospectus and the risk factors contained in the documents incorporated
by reference in this prospectus supplement and the accompanying prospectus. You should carefully consider the risk factors
described in this prospectus supplement, the accompanying prospectus and the documents incorporated by reference in this prospectus
supplement and the accompanying prospectus before you decide to purchase our common stock.
|
Per
Share
|
|
Total
|
Public offering price
|
$
|
|
$
|
Underwriting discounts and commissions
|
$
|
|
$
|
Proceeds, before payment of other expenses, to us
|
$
|
|
$
|
We estimate
the total expenses of this offering, excluding the underwriting discounts and commissions, will be approximately $ .
Neither the
Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed
upon the adequacy or accuracy of this prospectus supplement or the accompanying prospectus. Any representation to the contrary
is a criminal offense.
Delivery of
the shares of common stock will be made through the facilities of the Depository Trust Company. The underwriters expect to deliver
the shares of common stock against payment on or about April , 2014, subject to customary closing conditions.
_________________
Joint
Book-Running Managers
Lazard
Capital Markets Cowen and Company
Co-Manager
Craig-Hallum
Capital Group
_________________
The date of this prospectus supplement is April , 2014.
TABLE OF
CONTENTS
PROSPECTUS
SUPPLEMENT
Page
ABOUT THIS PROSPECTUS SUPPLEMENT
|
S-1
|
PROSPECTUS SUMMARY
|
S-2
|
THE OFFERING
|
S-4
|
RISK FACTORS
|
S-5
|
FORWARD–LOOKING STATEMENTS
|
S-15
|
USE OF PROCEEDS
|
S-16
|
CAPITALIZATION
|
S-17
|
DESCRIPTION OF COMMON STOCK
|
S-17
|
DIVIDEND POLICY
|
S-18
|
UNDERWRITING
|
S-19
|
LEGAL MATTERS
|
S-22
|
EXPERTS
|
S-22
|
WHERE YOU CAN FIND MORE INFORMATION
|
S-22
|
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
|
S-23
|
|
|
|
|
|
|
ABOUT THIS PROSPECTUS
|
1
|
CAUTIONARY NOTE REGARDING
FORWARD-LOOKING STATEMENTS
|
2
|
PACIFIC ETHANOL, INC.
|
3
|
RISK FACTORS
|
4
|
USE OF PROCEEDS
|
5
|
RATIO OF EARNINGS TO FIXED
CHARGES
|
5
|
DESCRIPTION OF DEBT SECURITIES
|
6
|
DESCRIPTION OF capital
STOCK
|
18
|
DESCRIPTION OF PREFERRED
STOCK
|
25
|
DESCRIPTION OF WARRANTS
|
28
|
DESCRIPTION OF UNITS
|
29
|
GLOBAL SECURITIES
|
31
|
PLAN OF DISTRIBUTION
|
33
|
DISCLOSURE OF COMMISSION
POSITION ON INDEMNIFICATION FOR SECURITIES ACT LIABILITIES
|
35
|
LEGAL MATTERS
|
35
|
EXPERTS
|
|
WHERE YOU CAN FIND MORE
INFORMATION
|
36
|
INCORPORATION OF CERTAIN
DOCUMENTS BY REFERENCE
|
37
|
ABOUT
THIS PROSPECTUS SUPPLEMENT
This document
consists of two parts. The first part is this prospectus supplement, which describes the specific terms of this offering. The
second part, the accompanying prospectus, gives more general information, some of which may not apply to this offering. Generally,
when we refer only to the “prospectus,” we are referring to both parts combined. This prospectus supplement may add
to, update or change information in the accompanying prospectus and the documents incorporated by reference into this prospectus
supplement or the accompanying prospectus.
If information
in this prospectus supplement is inconsistent with the accompanying prospectus, on the one hand, and the information contained
in the accompanying prospectus or in any document incorporated by reference that was filed with the Securities and Exchange Commission
before the date of this prospectus supplement, on the other hand, you should rely on this prospectus supplement. If any statement
in one of these documents is inconsistent with a statement in another document having a later date – for example, a document
incorporated by reference in the accompanying prospectus – the statement in the document having the later date modifies
or supersedes the earlier statement. This prospectus supplement, the accompanying prospectus and the documents incorporated into
each by reference include important information about us, the shares of common stock being offered and other information you should
know before investing in the securities offered hereby. Before you invest, you should carefully read this prospectus supplement,
the accompanying prospectus, all information incorporated by reference herein and therein, as well as the additional information
described under “Where You Can Find More Information” on page S-5 of this prospectus supplement.
You should rely
only on this prospectus supplement, the accompanying prospectus and the information incorporated or deemed to be incorporated
by reference in this prospectus supplement and the accompanying prospectus. We have not authorized anyone to provide you with
information that is in addition to, or different from, that contained or incorporated by reference in this prospectus supplement
and the accompanying prospectus. If anyone provides you with different or inconsistent information, you should not rely on it.
We are not offering to sell securities in any jurisdiction where the offer or sale is not permitted. You should not assume that
the information contained or incorporated by reference in this prospectus supplement or the accompanying prospectus is accurate
as of any date other than as of the date of this prospectus supplement or the accompanying prospectus, as the case may be, or
in the case of the documents incorporated by reference, the date of such documents regardless of the time of delivery of this
prospectus supplement and the accompanying prospectus or any sale of shares of common stock. Our business, financial condition,
liquidity, results of operations, and prospects may have changed since those dates.
When used in
this prospectus, the terms “Pacific Ethanol,” “we,” “our” and “us” refer to Pacific
Ethanol, Inc. and its consolidated subsidiaries, unless otherwise specified.
PROSPECTUS
SUMMARY
The following
summary of our business highlights some of the information contained elsewhere in or incorporated by reference into the accompanying
prospectus. Because this is only a summary, however, it does not contain all of the information that may be important to you.
You should carefully read this prospectus supplement and the accompanying prospectus, including the documents incorporated by
reference, which are described under “Where You Can Find More Information” and “Incorporation of Certain Documents
by Reference” in this prospectus supplement. You should also carefully consider the matters discussed in the section in
this prospectus supplement entitled “Risk Factors” and in the accompanying prospectus and in other periodic reports
incorporated herein by reference.
Pacific
Ethanol
Overview
We are the leading
producer and marketer of low-carbon renewable fuels in the Western United States.
We market all
the ethanol produced by four ethanol production facilities located in California, Idaho and Oregon, or the Pacific Ethanol Plants,
all the ethanol produced by two other ethanol producers in the Western United States and ethanol purchased from other third-party
suppliers throughout the United States. We market ethanol through our subsidiary Kinergy Marketing, LLC, or Kinergy. We also market
ethanol co-products, including wet distillers grains, or WDG, and corn oil for the Pacific Ethanol Plants.
We have extensive
customer relationships throughout the Western United States. Our ethanol customers are integrated oil companies and gasoline marketers
who blend ethanol into gasoline. We arrange for transportation, storage and delivery of ethanol purchased by our customers through
our agreements with third-party service providers in the Western United States, primarily in California, Arizona, Nevada, Utah,
Oregon, Colorado, Idaho and Washington. Our WDG customers are dairies and feedlots located near the Pacific Ethanol Plants. Our
corn oil is sold to poultry and biodiesel customers.
We have extensive
supplier relationships throughout the Western and Midwestern United States. In some cases, we have marketing agreements with suppliers
to market all of the output of their facilities.
We hold a 91%
ownership interest in PE Op Co., or PE Op Co., the owner of each of the plant holding companies, or the Plant Owners, that collectively
own the Pacific Ethanol Plants. We operate and maintain the Pacific Ethanol Plants under the terms of an asset management agreement
with PE Op Co. and the Plant Owners, including supplying all goods and materials necessary to operate and maintain each Pacific
Ethanol Plant. In operating the Pacific Ethanol Plants, we direct the production process to obtain optimal production yields,
lower costs by leveraging our infrastructure, enter into risk management agreements such as insurance policies and manage commodity
risk practices. We also have responsibility for any idled Pacific Ethanol Plant, such as the Pacific Ethanol Plant in Madera,
California, which has been idled since 2009 and is now in the process of being restarted.
We market ethanol
and its co-products, including WDG and corn oil, produced by the Pacific Ethanol Plants under the terms of separate marketing
agreements with the Plant Owners. The marketing agreements provide us with the absolute discretion to solicit, negotiate, administer
(including payment collection), enforce and execute ethanol and co-product sales agreements with any third party.
The Pacific
Ethanol Plants are comprised of the four facilities described immediately below and have an aggregate annual production capacity
of up to 200 million gallons. Three of the facilities are operational and one of the facilities is in the process of restarting
production. As market conditions change, we may increase, decrease or idle production at one or more operational facilities or
resume operations at any idled facility. We are restarting our facility in Madera, California and expect to commence production
in the second quarter of 2014.
Facility
Name
|
Facility
Location
|
Estimated
Annual Capacity
(gallons)
|
Current
Operating Status
|
Magic
Valley
|
Burley,
ID
|
60,000,000
|
Operating
|
Columbia
|
Boardman,
OR
|
40,000,000
|
Operating
|
Stockton
|
Stockton,
CA
|
60,000,000
|
Operating
|
Madera
|
Madera,
CA
|
40,000,000
|
Restarting
|
We earn fees
as follows under our asset management and other agreements with PE Op Co. and the Plant Owners:
|
·
|
ethanol
marketing fees of approximately 1% of the net sales price, but not less than $0.015 per
gallon and not more than $0.0225 per gallon;
|
|
·
|
corn procurement
and handling fees of $0.045 per bushel;
|
|
·
|
WDG, syrup and
corn oil fees of 5% of the third-party purchase price, excluding freight, but not less
than $2.00 per ton and not more than $3.50 per ton; and
|
|
·
|
asset management
fees of $75,000 per month for each operating facility and $40,000 per month for each
idled facility.
|
We intend to
advance our position as the leading marketer and producer of low-carbon renewable fuels in the Western United States, in part
by restarting production at our Madera, California facility in the second quarter of 2014, expanding our relationships with customers
and third-party ethanol producers to market higher volumes of ethanol 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 transportation
fuel. Further, we may seek to provide management services for other third-party ethanol production facilities in the Western United
States.
Recent Developments
On April 1,
2014, we amended the terms of certain of the Plant Owners’ credit facility and term loan arrangements with the Plant Owners’
lenders to accommodate our restart of production at the Pacific Ethanol Plant in Madera, California. Under the terms of the amendments,
one of the Plant Owners’ revolving credit facilities is maintained at $15.0 million, the Plant Owners’ other revolving
credit facility is reduced from $35.0 million to $20.0 million and the maximum amount of the Plant Owners’ term loans is
increased to allow the Plant Owners to immediately borrow an additional $7.0 million. The additional $7.0 million in borrowings
is subject to an original issue discount of 6.25%, representing loan fees payable to the lenders, resulting in net proceeds from
the additional borrowings of approximately $6.6 million. The closing of the additional loan is subject to customary closing conditions.
We intend to use the net proceeds of the additional loan for transaction expenses and expenses associated with restarting operations
at the Pacific Ethanol Plant in Madera, California.
Corporate Information
We are a Delaware
corporation that was incorporated in February 2005. Our principal executive offices are located at 400 Capitol Mall, Suite 2060,
Sacramento, California 95814. Our telephone number is (916) 403-2123 and our Internet website is www.pacificethanol.com. The content
of our Internet website does not constitute a part of this prospectus supplement or the accompanying prospectus.
THE
OFFERING
Issuer
|
Pacific
Ethanol, Inc.
|
Common stock offered by us
|
shares
|
Common stock outstanding immediately
prior to this offering
|
17,960,266
shares
|
Common stock to be outstanding
immediately after this offering
|
shares
|
Use of proceeds
|
We will
use the net proceeds from this offering to pay approximately $0.9 million in outstanding principal and accrued and unpaid
interest owed under the terms of our senior unsecured notes, and will use the remaining balance of the net proceeds of this
offering for general corporate purposes. See “Use of Proceeds” on page S-16.
|
Risk factors
|
See “Risk
Factors” beginning on page S-5 of this prospectus supplement and page 4 of the accompanying prospectus for a discussion
of factors that you should read and consider before investing in our common stock.
|
The NASDAQ Capital Market symbol
|
“PEIX”
|
______________
The number of
shares of common stock shown above to be outstanding after this offering is based on the 17,960,266 shares outstanding as of April
1, 2014 and excludes the following as of April 1, 2014:
|
·
|
323,872
shares of common stock reserved for issuance under our 2006 Stock Incentive Plan, or
2006 Plan, of which options to purchase 240,713 shares were outstanding as of that date,
at a weighted average exercise price of $4.18 per share;
|
|
·
|
762
shares of common stock reserved for issuance under outstanding options issued under our
2004 Stock Option Plan, or 2004 Plan, at a weighted average exercise price of $867.23
per share;
|
|
·
|
5,582,090
shares of common stock reserved for issuance under warrants to purchase common stock
outstanding as of that date at a weighted average exercise price of $11.92 per share;
|
|
·
|
599,681
shares of common stock reserved for issuance upon conversion of our Series B Preferred
Stock, or Series B Preferred Stock; and
|
|
·
|
any
additional shares of common stock we may issue from time to time after that date.
|
As a result
of the issuance of shares of our common stock in this offering, the conversion price of our Series B Preferred Stock will be adjusted
downward as a result of weighted-average anti-dilution price protection provisions contained in the certificate of designations
governing such securities.
RISK
FACTORS
Investing
in the shares of common stock offered hereby involves a high degree of risk. You should carefully consider the following risks
factors and the risk factors incorporated by reference to our filings with the Securities and Exchange Commission pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended, or Exchange Act, and all other information
contained or incorporated by reference in this prospectus supplement and the accompanying prospectus, including our consolidated
financial statements and the related notes, before investing in our shares of common stock. If any of these risks materialize,
our business, financial condition or results of operations could be materially harmed. In that case, the trading price of our
common stock could decline, and you may lose some or all of your investment. The risks and uncertainties we describe are not the
only ones we face. Additional risks not presently known to us, or that we currently deem immaterial, may also impair our business
operations. If any of the outcomes set forth in our risk factors were to occur, our business, financial condition, or results
of operations would likely suffer. In that event, the trading price of our common stock could decline, and you could lose all
or part of your investment.
Risks Related to our Business
We have incurred
significant losses and negative operating cash flow in the past and we may incur losses and negative operating cash flow in the
future, which may hamper our operations and impede us from expanding our business.
We have incurred
significant losses and negative operating cash flow in the past. For 2013 and 2012, we incurred consolidated net losses of approximately
$1.2 million and $43.4 million, respectively, and in 2012 incurred negative operating cash flow of negative $20.8 million. We
may incur losses and negative operating cash flow in the future. We expect to rely on cash on hand and cash, if any, generated
from our operations and from future financing activities, to fund all of the cash requirements of our business. Continued losses
and negative operating cash flow may hamper our operations and impede us from expanding our business.
Our results of
operations and our ability to operate at a profit is largely dependent on managing the costs of corn and natural gas and the prices
of ethanol, WDG and other ethanol co-products, all of which are subject to significant volatility and uncertainty.
Our results
of operations are highly impacted by commodity prices, including the cost of corn and natural gas that we must purchase, and the
prices of ethanol, WDG and other ethanol co-products that we sell. Prices and supplies are subject to and determined by market
and other forces over which we have no control, such as weather, domestic and global demand, supply shortages, export prices and
various governmental policies in the United States and around the world.
As a result
of price volatility of corn, natural gas, ethanol, WDG and other ethanol co-products, our results of operations may fluctuate
substantially. In addition, increases in corn or natural gas prices or decreases in ethanol, WDG or other ethanol co-product prices
may make it unprofitable to operate. In fact, some of our marketing activities will likely be unprofitable in a market of generally
declining ethanol prices due to the nature of our business. For example, to satisfy customer demands, we maintain certain quantities
of ethanol inventory for subsequent resale. Moreover, we procure much of our inventory outside the context of a marketing arrangement
and therefore must buy ethanol at a price established at the time of purchase and sell ethanol at an index price established later
at the time of sale that is generally reflective of movements in the market price of ethanol. As a result, our margins for ethanol
sold in these transactions generally decline and may turn negative as the market price of ethanol declines.
No assurance
can be given that corn or natural gas can be purchased at, or near, current or any particular prices or that ethanol, WDG or other
ethanol co-products will sell at, or near, current or any particular prices. Consequently, our results of operations and financial
position may be adversely affected by increases in the price of corn or natural gas or decreases in the price of ethanol, WDG
or other ethanol co-products.
Over the past
several years, the spread between ethanol and corn prices has fluctuated significantly. Fluctuations are likely to continue to
occur. A sustained narrow spread, whether as a result of sustained high or increased corn prices or sustained low or decreased
ethanol prices, would adversely affect our results of operations and financial position. Further, combined revenues from sales
of ethanol, WDG and other ethanol co-products could decline below the marginal cost of production, which may force us to suspend
production of ethanol, WDG and ethanol co-products at some or all of the Pacific Ethanol Plants.
Increased ethanol
production may cause a decline in ethanol prices or prevent ethanol prices from rising, and may have other negative effects, adversely
impacting our results of operations, cash flows and financial condition.
We believe that
the most significant factor influencing the price of ethanol has been the substantial increase in ethanol production in recent
years. Domestic ethanol production capacity has increased steadily from an annualized rate of 1.5 billion gallons per year in
January 1999 to 14.9 billion gallons in 2013 according to the Renewable Fuels Association. In addition, due to significantly improved
ethanol production margins, we anticipate that owners of idle ethanol production facilities, many of which were idled due to poor
production margins, will restart operations, thereby resulting more abundant ethanol supplies and inventories. Any increase in
the demand for ethanol may not be commensurate with increases in the supply of ethanol, thus leading to lower ethanol prices.
Also, demand for ethanol could be impaired due to a number of factors, including regulatory developments and reduced United States
gasoline consumption. Reduced gasoline consumption has occurred in the past and could occur in the future as a result of increased
gasoline or oil prices. Any of these outcomes could have a material adverse effect on our results of operations, cash flows and
financial condition.
The market price
of ethanol is volatile and subject to large fluctuations, which may cause our profitability or losses to fluctuate significantly.
The market price
of ethanol is volatile and subject to large fluctuations. The market price of ethanol is dependent upon many factors, including
the supply of ethanol and the price of gasoline, which is in turn dependent upon the price of petroleum which is highly volatile
and difficult to forecast. For example, the ethanol prices, as reported by the CBOT, ranged from $1.61 to $2.74 per gallon during
2013 and corn prices, as reported by the CBOT, ranged from $4.12 to $7.41 per bushel during 2013. Fluctuations in the market price
of ethanol may cause our profitability or losses to fluctuate significantly.
Some of our marketing
activities will likely be unprofitable in a market of generally declining ethanol prices due to the nature of our business.
Some of our
marketing activities will likely be unprofitable in a market of generally declining ethanol prices due to the nature of our business.
For example, to satisfy customer demands, we maintain certain quantities of ethanol inventory for subsequent resale. Moreover,
we procure much of our inventory outside the context of a marketing arrangement and therefore must buy ethanol at a price established
at the time of purchase and sell ethanol at an index price established later at the time of sale that is generally reflective
of movements in the market price of ethanol. As a result, our margins for ethanol sold in these transactions generally decline
and may turn negative as the market price of ethanol declines.
Disruptions in
ethanol production infrastructure may adversely affect our business, results of operations and financial condition.
Our business
depends on the continuing availability of rail, road, port, storage and distribution infrastructure. In particular, due to limited
storage capacity at the Pacific Ethanol Plants and other considerations related to production efficiencies, the Pacific Ethanol
Plants depend on just-in-time delivery of corn. The production of ethanol also requires a significant and uninterrupted supply
of other raw materials and energy, primarily water, electricity and natural gas. The prices of electricity and natural gas have
fluctuated significantly in the past and may fluctuate significantly in the future. Local water, electricity and gas utilities
may not be able to reliably supply the water, electricity and natural gas that the Pacific Ethanol Plants will need or may not
be able to supply those resources on acceptable terms. Any disruptions in the ethanol production infrastructure, whether caused
by labor difficulties, earthquakes, storms, other natural disasters or human error or malfeasance or other reasons, could prevent
timely deliveries of corn or other raw materials and energy and may require the Pacific Ethanol Plants to halt production which
could have a material adverse effect on our business, results of operations and financial condition.
We may
be unable to timely restart production at our Madera, California plant.
We plan to restart
production in the second quarter of 2014 at our 40 million gallon per year facility in Madera, California. Restarting production
at our Madera facility will require, among other things, permit renewals, significant capital and successful testing and start-up
activities. We may be unable to timely renew or obtain the necessary permits or conduct successful testing and start-up activities
to restart our Madera facility as planned, which may adversely impact our results of operations, cash flows and financial condition.
We and the Pacific
Ethanol Plants may engage in hedging transactions and other risk mitigation strategies that could harm our results of operations.
In an attempt
to partially offset the effects of volatility of ethanol prices and corn and natural gas costs, the Pacific Ethanol Plants may
enter into contracts to fix the price of a portion of their ethanol production or purchase a portion of their corn or natural
gas requirements on a forward basis. In addition, we may engage in other hedging transactions involving exchange-traded futures
contracts for corn, natural gas and unleaded gasoline from time to time. The financial statement impact of these activities is
dependent upon, among other things, the prices involved and our ability to sell sufficient products to use all of the corn and
natural gas for which forward commitments have been made. Hedging arrangements also expose us to the risk of financial loss in
situations where the other party to the hedging contract defaults on its contract or, in the case of exchange-traded contracts,
where there is a change in the expected differential between the underlying price in the hedging agreement and the actual prices
paid or received by us. As a result, our results of operations and financial condition may be adversely affected by fluctuations
in the price of corn, natural gas, ethanol and unleaded gasoline.
Operational difficulties
at the Pacific Ethanol Plants could negatively impact sales volumes and could cause us to incur substantial losses.
Operations at
the Pacific Ethanol Plants are subject to labor disruptions, unscheduled downtimes and other operational hazards inherent in the
ethanol production industry, including equipment failures, fires, explosions, abnormal pressures, blowouts, pipeline ruptures,
transportation accidents and natural disasters. Some of these operational hazards may cause personal injury or loss of life, severe
damage to or destruction of property and equipment or environmental damage, and may result in suspension of operations and the
imposition of civil or criminal penalties. Insurance obtained by the Pacific Ethanol Plants may not be adequate to fully cover
the potential operational hazards described above or the Pacific Ethanol Plants may not be able to renew this insurance on commercially
reasonable terms or at all.
Moreover, the
production facilities at the Pacific Ethanol Plants may not operate as planned or expected. All of these facilities are designed
to operate at or above a specified production capacity. The operation of these facilities is and will be, however, subject to
various uncertainties. As a result, these facilities may not produce ethanol and its co-products at expected levels. In the event
any of these facilities do not run at their expected capacity levels, our business, results of operations and financial condition
may be materially and adversely affected.
The United States
ethanol industry is highly dependent upon certain federal and state legislation and regulation and any changes in legislation
or regulation could have a material adverse effect on our results of operations, cash flows and financial condition.
The U.S. Environmental
Protection Agency, or EPA, has implemented a Renewable Fuel Standard, or RFS, pursuant to the Energy Policy Act of 2005 and the
Energy Independence and Security Act of 2007. The RFS program sets annual quotas for the quantity of renewable fuels (such as
ethanol) that must be blended into motor fuels consumed in the United States. The domestic market for ethanol is significantly
impacted by federal mandates under the RFS program for volumes of renewable fuels (such as ethanol) required to be blended with
gasoline. The national RFS minimum requirement of 13.8 billion gallons of conventional biofuels (or ethanol derived from corn
starch) to be consumed in the U.S. in 2013 reflected approximated current domestic production levels of such ethanol. Future demand
of ethanol will be largely dependent upon incentives to blend ethanol into motor fuels, including the relative price of gasoline
versus ethanol, the relative octane value of ethanol, constraints in the ability of vehicles to use higher ethanol blends, the
national RFS, and other applicable environmental requirements. Any significant increase in production capacity above the national
RFS minimum requirements may have an adverse impact on ethanol prices.
Legislation
aimed at reducing or eliminating the renewable fuel use required by the national RFS has been introduced in Congress. On April
10, 2013 the Renewable Fuel Standard Elimination Act was introduced as H.R. 1461. The bill is targeted to repeal the national
RFS. Also introduced on April 10, 2013 was the RFS Reform Bill, H.R. 1462, which would prohibit more than ten percent ethanol
in gasoline and reduce the national RFS mandated volume of renewable fuel. On May 14, 2013, the Domestic Alternatives Fuels Act
of 2013 was introduced in the U.S. House of Representatives as H.R. 1959 to allow ethanol produced from natural gas to be used
to meet the national RFS mandate. These bills were assigned to a congressional committee, which will consider them before possibly
sending any on to the House or Senate as a whole. Our operations could be adversely impacted if the RFS Reform Act of 2013, the
RFS Elimination Act of 2013, or other legislation is enacted that reduces the national RFS volume requirements.
Under the provisions
of the Clean Air Act, as amended by the Energy Independence and Security Act of 2007, the EPA has limited authority to waive or
reduce the mandated national RFS requirements, which authority is subject to consultation with the Secretaries of Agriculture
and Energy, and based on a determination that there is inadequate domestic renewable fuel supply or implementation of the applicable
requirements would severely harm the economy or environment of a state, region or the United States. On November 15, 2013, the
EPA released its Notice of Proposed Rulemaking for the 2014 Renewable Fuel Standard. The EPA proposes setting the 2014 Renewable
Volume Obligations, or RVO, for key categories of biofuel covered by the national RFS below the 2014 volumes set in 2007 by the
Energy Independence and Security Act of 2007 and below the 2013 volumes. The proposal seeks comment on a range of total renewable
fuel volumes for 2014, which includes a proposed total RVO of 15.2 billion gallons for total renewable fuel blended into transportation
fuels of which corn ethanol would be approximately 13.0 billion gallons, down from the original legislative target of 18.15 billion
gallons for total renewable fuels of which corn ethanol would have been approximately 14.4 billion gallons and 0.8 billion gallons
less of corn ethanol than what was required in 2013. Our operations could be adversely impacted if the EPA accepts the proposed
RVOs.
Future demand for
ethanol is uncertain and may be affected by changes to federal mandates, public perception, consumer acceptance and overall consumer
demand for transportation fuel, any of which could negatively affect demand for ethanol and our results of operations.
Although many
trade groups, academics and governmental agencies have supported ethanol as a fuel additive that promotes a cleaner environment,
others have criticized ethanol production as consuming considerably more energy and emitting more greenhouse gases than other
biofuels and potentially depleting water resources. Some studies have suggested that corn-based ethanol is less efficient than
ethanol produced from other feedstock and that it negatively impacts consumers by causing prices to increase for dairy, meat and
other food generated from livestock that consume corn. Additionally, ethanol critics contend that corn supplies are redirected
from international food markets to domestic fuel markets. If negative views of corn-based ethanol production gain acceptance,
support for existing measures promoting use and domestic production of corn-based ethanol could decline, leading to reduction
or repeal of federal mandates, which would adversely affect the demand for ethanol. These views could also negatively impact public
perception of the ethanol industry and acceptance of ethanol as an alternative fuel.
There are limited
markets for ethanol beyond those established by federal mandates. Discretionary blending and E85 blending are important secondary
markets. Discretionary blending is often determined by the price of ethanol versus the price of gasoline. In periods when discretionary
blending is financially unattractive, the demand for ethanol may be reduced. Also, the demand for ethanol is affected by the overall
demand for transportation fuel, which peaked in 2007 and has been declining steadily since then. Demand for transportation fuel
is affected by the number of miles traveled by consumers and the fuel economy of vehicles. Market acceptance of E15 may partially
offset the effects of decreases in transportation fuel demand. A reduction in the demand for ethanol and ethanol co-products may
depress the value of our products, erode our margins and reduce our ability to generate revenue or to operate profitably. Consumer
acceptance of E15 and E85 fuels is needed before ethanol can achieve any significant growth in market share relative to other
transportation fuels.
The ethanol production
and marketing industry is extremely competitive. Many of our significant competitors have greater production and financial resources
and one or more of these competitors could use their greater resources to gain market share at our expense. In addition, a number
of Kinergy’s suppliers may circumvent the marketing services we provide, causing our sales and profitability to decline.
The ethanol
production and marketing industry is extremely competitive. Many of our significant competitors in the ethanol production and
marketing industry, including Archer Daniels Midland Company and Valero Energy Corporation, have substantially greater production
and/or financial resources. As a result, our competitors may be able to compete more aggressively and sustain that competition
over a longer period of time. Successful competition will require a continued high level of investment in marketing and customer
service and support. Our limited resources relative to many significant competitors may cause us to fail to anticipate or respond
adequately to new developments and other competitive pressures. This failure could reduce our competitiveness and cause a decline
in market share, sales and profitability. Even if sufficient funds are available, we may not be able to make the modifications
and improvements necessary to compete successfully.
We also face
increasing competition from international suppliers. Currently, international suppliers produce ethanol primarily from sugar cane
and have cost structures that are generally substantially lower than the cost structures of the Pacific Ethanol Plants. Any increase
in domestic or foreign competition could cause the Pacific Ethanol Plants to reduce their prices and take other steps to compete
effectively, which could adversely affect their and our results of operations and financial condition.
In addition,
some of our suppliers are potential competitors and, especially if the price of ethanol reaches historically high levels, they
may seek to capture additional profits by circumventing our marketing services in favor of selling directly to our customers.
If one or more of our major suppliers, or numerous smaller suppliers, circumvent our marketing services, our sales and profitability
may decline.
If Kinergy fails
to satisfy its financial covenants under its credit facility, it may experience a loss or reduction of that facility, which would
have a material adverse effect on our financial condition and results of operations.
We are substantially
dependent on Kinergy’s credit facility to help finance its operations. Kinergy must satisfy monthly financial covenants
under its credit facility, including covenants regarding its earnings before interest, taxes, depreciation and amortization (EBITDA)
and fixed-charge coverage ratios. Kinergy will be in default under its credit facility if it fails to satisfy any financial covenant.
A default may result in the loss or reduction of the credit facility. The loss of Kinergy’s credit facility, or a significant
reduction in Kinergy’s borrowing capacity under the facility, would result in Kinergy’s inability to finance a significant
portion of its business and would have a material adverse effect on our financial condition and results of operations.
The high concentration
of our sales within the ethanol marketing and production industry could result in a significant reduction in sales and negatively
affect our profitability if demand for ethanol declines
.
We expect to
be completely focused on the marketing and production of ethanol and its co-products for the foreseeable future. We may be unable
to shift our business focus away from the marketing and production of ethanol to other renewable fuels or competing products.
Accordingly, an industry shift away from ethanol or the emergence of new competing products may reduce the demand for ethanol.
A downturn in the demand for ethanol would likely materially and adversely affect our sales and profitability.
In addition to
ethanol produced by the Pacific Ethanol Plants, we also depend on a small number of third-party suppliers for a significant portion
of the ethanol we sell. If any of these suppliers does not continue to supply us with ethanol in adequate amounts, we may be unable
to satisfy the demands of our customers and our sales, profitability and relationships with our customers will be adversely affected.
In addition
to the ethanol produced by the Pacific Ethanol Plants, we also depend, and expect to continue to depend for the foreseeable future,
on a small number of third-party suppliers for a significant portion of the total amount of ethanol that we sell. Our third-party
suppliers are primarily located in the Midwestern United States. The delivery of ethanol from these suppliers is therefore subject
to delays resulting from inclement weather and other conditions. If any of these suppliers is unable or declines for any reason
to continue to supply us with ethanol in adequate amounts, we may be unable to replace that supplier and source other supplies
of ethanol in a timely manner, or at all, to satisfy the demands of our customers. If this occurs, our sales, profitability and
our relationships with our customers will be adversely affected.
We may be adversely
affected by environmental, health and safety laws, regulations and liabilities
.
We are subject
to various federal, state and local environmental laws and regulations, including those relating to the discharge of materials
into the air, water and ground, the generation, storage, handling, use, transportation and disposal of hazardous materials and
wastes, and the health and safety of our employees. In addition, some of these laws and regulations require us to operate under
permits that are subject to renewal or modification. These laws, regulations and permits can often require expensive pollution
control equipment or operational changes to limit actual or potential impacts to the environment. A violation of these laws and
regulations or permit conditions can result in substantial fines, natural resource damages, criminal sanctions, permit revocations
and/or facility shutdowns. In addition, we have made, and expect to make, significant capital expenditures on an ongoing basis
to comply with increasingly stringent environmental laws, regulations and permits.
We may be liable
for the investigation and cleanup of environmental contamination at each of the Pacific Ethanol Plants and at off-site locations
where we arrange for the disposal of hazardous substances or wastes. If these substances or wastes have been or are disposed of
or released at sites that undergo investigation and/or remediation by regulatory agencies, we may be responsible under the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, or other environmental laws for all or part of the costs of investigation
and/or remediation, and for damages to natural resources. We may also be subject to related claims by private parties alleging
property damage and personal injury due to exposure to hazardous or other materials at or from those properties. Some of these
matters may require us to expend significant amounts for investigation, cleanup or other costs.
In addition,
new laws, new interpretations of existing laws, increased governmental enforcement of environmental laws or other developments
could require us to make significant additional expenditures. Continued government and public emphasis on environmental issues
can be expected to result in increased future investments for environmental controls at the Pacific Ethanol Plants. Present and
future environmental laws and regulations, and interpretations of those laws and regulations, applicable to our operations, more
vigorous enforcement policies and discovery of currently unknown conditions may require substantial expenditures that could have
a material adverse effect on our results of operations and financial condition.
The hazards
and risks associated with producing and transporting our products (including fires, natural disasters, explosions and abnormal
pressures and blowouts) may also result in personal injury claims or damage to property and third parties. As protection against
operating hazards, we maintain insurance coverage against some, but not all, potential losses. However, we could sustain losses
for uninsurable or uninsured risks, or in amounts in excess of existing insurance coverage. Events that result in significant
personal injury or damage to our property or third parties or other losses that are not fully covered by insurance could have
a material adverse effect on our results of operations and financial condition.
If we are unable
to attract and retain key personnel, our ability to operate effectively may be impaired.
Our ability
to operate our business and implement strategies depends, in part, on the efforts of our executive officers and other key employees. Our
future success will depend on, among other factors, our ability to retain our current key personnel and attract and retain qualified
future key personnel, particularly executive management. Failure to attract or retain key personnel could have a material adverse
effect on our business and results of operations.
We depend on a
small number of customers for the majority of our sales. A reduction in business from any of these customers could cause a significant
decline in our overall sales and profitability.
The majority
of our sales are generated from a small number of customers. During 2013 and 2012, three customers accounted for an aggregate
of approximately 52% and 49% of our net sales, respectively. We expect that we will continue to depend for the foreseeable future
upon a small number of customers for a significant portion of our sales. Our agreements with these customers generally do not
require them to purchase any specified amount of ethanol or dollar amount of sales or to make any purchases whatsoever. Therefore,
in any future period, our sales generated from these customers, individually or in the aggregate, may not equal or exceed historical
levels. If sales to any of these customers cease or decline, we may be unable to replace these sales with sales to either existing
or new customers in a timely manner, or at all. A cessation or reduction of sales to one or more of these customers could cause
a significant decline in our overall sales and profitability.
Our lack of long-term
ethanol orders and commitments by our customers could lead to a rapid decline in our sales and profitability.
We cannot rely
on long-term ethanol orders or commitments by our customers for protection from the negative financial effects of a decline in
the demand for ethanol or a decline in the demand for our marketing services. The limited certainty of ethanol orders can make
it difficult for us to forecast our sales and allocate our resources in a manner consistent with our actual sales. Moreover, our
expense levels are based in part on our expectations of future sales and, if our expectations regarding future sales are inaccurate,
we may be unable to reduce costs in a timely manner to adjust for sales shortfalls. Furthermore, because we depend on a small
number of customers for a significant portion of our sales, the magnitude of the ramifications of these risks is greater than
if our sales were less concentrated. As a result of our lack of long-term ethanol orders and commitments, we may experience a
rapid decline in our sales and profitability.
Our debt levels
could negatively impact our business prospects, results of operations, cash flows and financial condition.
As of March
28, 2014, our consolidated debt was $72.7 million, including $47.7 million in consolidated term and revolving debt of the Plant
Owners. Our debt levels could result in significant adverse consequences. For example, we are required to dedicate a substantial
portion of our cash flow from operations to make payments on our debt, thereby reducing the availability of cash flow for working
capital, capital expenditures and other business activities. In addition, our ability to obtain additional financing for working
capital, capital expenditures, acquisitions and other business activities may be limited. Our debt levels may also increase our
vulnerability to both general and industry-specific adverse economic conditions and leave us at a competitive disadvantage against
less leveraged competitors.
The Plant Owners’
debt is secured by all of the Plant Owners’ assets, including the Pacific Ethanol Plants. If the Plant Owners are unable
to meet the repayment or other terms of their indebtedness, they will be in default of their obligations to their lenders. Upon
the occurrence of a default, the lenders could foreclose on the Plant Owners’ assets, including the Pacific Ethanol Plants,
which would materially and adversely impact our results of operations, cash flows and financial condition, and could result in
no significant assets left for our stockholders in the event of a liquidation.
There are limitations
on our ability to receive distributions from our subsidiaries.
We conduct most
of our operations through subsidiaries and are dependent upon dividends or other intercompany transfers of funds from our subsidiaries
to generate free cash flow. Moreover, some of our subsidiaries are limited in their ability to pay dividends or make distributions
to us by the terms of their financing arrangements.
Risks Related to this Offering
and Ownership of our Common Stock
We have broad discretion
as to the use of the net proceeds we receive from this offering and may not use them effectively.
We retain broad
discretion to use the net proceeds from this offering and may use the net proceeds for general corporate purposes, which may include,
among other things, working capital requirements, capital expenditures, acquisitions, and the repayment of outstanding indebtedness.
Our management will have broad discretion as to the application of the net proceeds from this offering in excess of the approximately
$0.9 million owed under our senior unsecured notes. Accordingly, you will have to rely upon the judgment of our management with
respect to the use of those net proceeds. Our stockholders may not agree with the manner in which our management chooses to allocate
and spend the net proceeds. Moreover, our management may use the net proceeds for corporate purposes that may not increase our
profitability or our market value. The failure by our management to apply these funds effectively could harm our business. See
“Use of Proceeds” on page S-16.
Future
sales of substantial amounts of our common stock could adversely affect the market price of our common stock.
Future sales
of substantial amounts of our common stock, or securities convertible or exchangeable into shares of our common stock, into the
public market, including shares of our common stock issued upon exercise of options and warrants, or perceptions that those sales
could occur, could adversely affect the prevailing market price of our common stock and our ability to raise capital in the future.
Based on the
sale of shares of our common stock in this offering, we will be selling a number of shares that represents approximately
% of the number of shares of common stock that we currently have outstanding. Resales of substantial amounts of the shares
of our common stock issued in this offering as well as shares of our common stock issuable upon conversion or exercise of currently
outstanding derivative securities could have a negative effect on our stock price.
The conversion
or exercise of our outstanding derivative securities or the issuance of shares of our common stock in payment of interest on outstanding
promissory notes or in lieu of accrued and unpaid dividends on our Series B Preferred Stock could substantially dilute your investment,
reduce your voting power, and, if the resulting shares of common stock are resold into the market, or if a perception exists that
a substantial number of shares may be issued and then resold into the market, the market price of our common stock and the value
of your investment could decline significantly.
Our Series B
Preferred Stock, which is convertible into our common stock, and outstanding options to acquire our common stock issued to employees,
directors and others, and warrants to purchase our common stock, allow the holders of these derivative securities an opportunity
to profit from a rise in the market price of our common stock. In addition, we may elect to issue shares of our common stock in
payment of interest on our outstanding promissory notes or in lieu of accrued and unpaid cash dividends on our Series B Preferred
Stock. We have issued common stock in respect of our derivative securities, promissory notes and accrued and unpaid dividends
on our Series B Preferred Stock in the past and expect to do so in the future. If the prices at which our derivative securities
are converted or exercised, or at which shares of common stock in payment of interest on our promissory notes or in lieu of accrued
and unpaid dividends on our Series B Preferred Stock are issued, are lower than the price at which you made your investment, immediate
dilution of the value of your investment will occur. Our issuance of shares of common stock under these circumstances will also
reduce your voting power. In addition, sales of a substantial number of shares of common stock resulting from any of these issuances,
or even the perception that these sales could occur, could adversely affect the market price of our common stock. As a result,
you could experience a significant decline in the value of your investment as a result of both the actual and potential issuance
of shares of our common stock.
We expect to incur
significant non-cash expenses in the first quarter of 2014, and may incur additional significant non-cash expenses in future periods,
due to adjustments to the fair values of our outstanding warrants. These non-cash expenses may materially and adversely affect
our reported net income or losses and cause our stock price to decline.
From 2010 through
2013, we issued in various financing transactions warrants to purchase shares of our common stock. The warrants were initially
recorded at their fair values, which are adjusted quarterly, generally resulting in non-cash expenses or income if the market
price of our common stock increases or decreases, respectively, during the period. For the first quarter of 2014, we expect to
incur significant non-cash expenses due to adjustments to the fair values of our outstanding warrants to purchase our common stock
resulting from the substantial increase in the market price of our common stock during the period. These non-cash expenses will
be significantly higher in the first quarter of 2014 than in prior quarterly periods. We may incur additional significant non-cash
expenses in future periods due to adjustments to the fair values of our outstanding warrants resulting from increases in the market
price of our common stock during those periods. These non-cash expenses may materially and adversely affect our reported net income
or losses and cause our stock price to decline.
Our stock price
is highly volatile, which could result in substantial losses for investors purchasing shares of our common stock and in litigation
against us.
The market price
of our common stock has fluctuated significantly in the past and may continue to fluctuate significantly in the future. The market
price of our common stock may continue to fluctuate in response to one or more of the following factors, many of which are beyond
our control:
|
·
|
fluctuations
in the market prices of ethanol and its co-products, including WDG and corn oil;
|
|
·
|
the cost of key
inputs to the production of ethanol, including corn and natural gas;
|
|
·
|
our ability to
timely restart ethanol production at our Madera, California facility;
|
|
·
|
the volume and
timing of the receipt of orders for ethanol from major customers;
|
|
·
|
competitive pricing
pressures;
|
|
·
|
our ability to
produce, sell and deliver ethanol on a cost-effective and timely basis;
|
|
·
|
the announcement,
introduction and market acceptance of one or more alternatives to ethanol;
|
|
·
|
losses resulting
from adjustments to the fair values of our outstanding warrants to purchase our common
stock;
|
|
·
|
changes in market
valuations of companies similar to us;
|
|
·
|
stock market price
and volume fluctuations generally;
|
|
·
|
regulatory developments
or increased enforcement;
|
|
·
|
fluctuations in
our quarterly or annual operating results;
|
|
·
|
additions or departures
of key personnel;
|
|
·
|
our inability
to obtain financing;
|
|
·
|
our financing
activities and future sales of our common stock or other securities; and
|
|
·
|
our ability to
maintain contracts that are critical to our operations, including the asset management
agreement with the Plant Owners that provides us with the ability to operate the Pacific
Ethanol Plants and the marketing agreements with the Plant Owners that provide us with
the ability to market all ethanol and co-products produced by the Pacific Ethanol Plants.
|
Furthermore,
we believe that the economic conditions in California and other Western states, as well as the United States as a whole, could
have a negative impact on our results of operations. Demand for ethanol could also be adversely affected by a slow-down in overall
demand for oxygenate and gasoline additive products. The levels of our ethanol production and purchases for resale will be based
upon forecasted demand. Accordingly, any inaccuracy in forecasting anticipated revenues and expenses could adversely affect our
business. The failure to receive anticipated orders or to complete delivery in any quarterly period could adversely affect our
results of operations for that period. Quarterly results are not necessarily indicative of future performance for any particular
period, and we may not experience revenue growth or profitability on a quarterly or an annual basis.
The price at
which you purchase shares of our common stock may not be indicative of the price that will prevail in the trading market. You
may be unable to sell your shares of common stock at or above your purchase price, which may result in substantial losses to you
and which may include the complete loss of your investment. In the past, securities class action litigation has often been brought
against a company following periods of high stock price volatility. We may be the target of similar litigation in the future.
Securities litigation could result in substantial costs and divert management’s attention and our resources away from our
business.
Any of the risks
described above could have a material adverse effect on our results of operations or the price of our common stock, or both.
FORWARD–LOOKING
STATEMENTS
This prospectus
and the documents incorporated by reference into this prospectus contain “forward-looking statements” and are intended
to be covered by the safe harbor provided for under Section 27A of the Securities Act of 1933, as amended, or Securities Act,
and Section 21E of the Exchange Act. These forward-looking statements include our current expectations and projections about future
results, performance, business strategy, recent and pending acquisitions, budgets, objectives of management for future operations,
legal strategies, prospects and opportunities. We have tried to identify these forward-looking statements by using words like
“believe,” “expect,” “may,” “will,” “would,” “could,”
“seek,” “estimate,” “continue,” “anticipate,” “intend,” “future,”
“plan” or variations of those terms and other similar expressions, including their use in the negative. 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 and any applicable prospectus supplement. These forward-looking statements are subject to a number of risks, uncertainties
and other factors that could cause our actual results, performance, prospects or opportunities to differ materially from those
expressed in, or implied by, these forward-looking statements. We claim the protection of the safe harbor for forward–looking
statements contained in the Private Securities Litigation Reform Act of 1995 for all forward–looking statements.
Forward–looking
statements may be made regarding our business, operations, financial performance and condition, earnings, our prospects, as well
as regarding our industry generally. Forward-looking statements are not guarantees of performance. You should understand that
these factors, in addition to those discussed in “Risk Factors” above and elsewhere in this prospectus, and in the
documents that are incorporated by reference into this prospectus, could affect our future results and could cause those results
or other outcomes to differ materially from those expressed or implied in any forward–looking statement.
Given these
risks and uncertainties, readers are cautioned not to place undue reliance on our forward-looking statements. Projections included
in such risk factors have been prepared based on assumptions, which we believe to be reasonable, but not in accordance with United
States generally accepted accounting principles or any guidelines of the Securities and Exchange Commission. Actual results will
vary, perhaps materially, and we undertake no obligation to update the projections at any future date. You are strongly cautioned
not to place undue reliance on such projections. All subsequent written and oral forward-looking statements attributable to Pacific
Ethanol or to persons acting on our behalf are expressly qualified in their entirety by these cautionary statements. Except as
required by the federal securities laws, we do not intend to update or revise any forward-looking statements, whether as a result
of new information, future events or otherwise.
USE
OF PROCEEDS
We estimate
that the net proceeds from the sale of our common stock in this offering will be approximately $ million, after deducting underwriting discounts and commissions and our estimated expenses related to the offering.
Under the terms
of our senior unsecured notes issued on January 11, 2013, or January 2013 Notes, we are obligated to prepay the January 2013 Notes
using the net cash proceeds from this offering. Therefore, we will use approximately $0.9 million of the net proceeds from this
offering to pay all outstanding principal and accrued and unpaid interest owed under the terms of the January 2013 Notes.
We intend to
use the remaining net proceeds from this offering for general
corporate purposes, which may include, among other things, working capital requirements, capital expenditures, acquisitions, and
the repayment of outstanding indebtedness. Pending the application of the net proceeds as described herein, we expect to invest
the net proceeds in demand deposit accounts or short-term, investment-grade securities.
CAPITALIZATION
The following
table sets forth our cash and cash equivalents and capitalization as of December 31, 2013 on (i) an actual basis, and (ii) an
as adjusted basis to give effect to the sale of the shares of common stock offered hereby (assuming net proceeds of approximately
$ million and use of approximately $0.9 million of the net proceeds
from this offering to pay all outstanding principal and accrued and unpaid interest owed) under the terms of the January 2013 Notes.
The following
table should be read in conjunction with “Use of Proceeds” and our consolidated financial statements and related notes,
which are incorporated by reference into this prospectus supplement. We can provide no assurance that we will be able to close
the offering contemplated in this prospectus supplement.
|
|
At
December 31, 2013
|
|
|
|
Actual
|
|
|
As
Adjusted
|
|
|
|
(in thousands, except share and per
share amounts)
|
|
|
|
(audited)
|
|
|
(unaudited)
|
|
Cash
and cash equivalents
|
|
$
|
5,151
|
|
|
$
|
|
|
|
|
|
|
|
|
|
|
|
Long-term debt
|
|
$
|
98,408
|
|
|
$
|
97,459
|
|
Stockholders’ equity:
|
|
|
|
|
|
|
|
|
Preferred stock, $0.001 par
value: Shares authorized: 10,000,000; Series A: Shares authorized: 1,684,375; shares issued: 0
Series B: Shares authorized:
1,580,790; shares issued: 926,942
|
|
|
1
|
|
|
|
1
|
|
Common stock, $0.001 par value:
Shares authorized: 300,000,000; shares issued: 16,126,287 on an actual basis and shares issued on an as adjusted
basis
|
|
|
16
|
|
|
|
|
|
Additional paid-in capital
|
|
|
621,557
|
|
|
|
|
|
Accumulated deficit
|
|
|
(532,356
|
)
|
|
|
(532,356
|
)
|
Noncontrolling interest
|
|
|
5,683
|
|
|
|
5,683
|
|
Total stockholders’
equity
|
|
|
94,901
|
|
|
|
|
|
Total capitalization
|
|
$
|
193,309
|
|
|
$
|
|
|
|
|
|
|
|
|
|
|
|
DESCRIPTION
OF COMMON STOCK
Authorized and Outstanding Capital
Stock
Our authorized
capital stock consists of 300,000,000 shares of common stock, $0.001 par value per share, and 10,000,000 shares of preferred stock,
$0.001 par value per share, of which 1,684,375 shares are designated as Series A Cumulative Redeemable Convertible Preferred
Stock, or Series A Preferred Stock, and 1,580,790 shares are designated as Series B Preferred Stock. As of April 1, 2014,
there were 17,960,266 shares of common stock, no shares of Series A Preferred Stock and 926,942 shares of Series B Preferred Stock
issued and outstanding. On June 8, 2011, we effected a one-for-seven reverse split of our common stock. On May 14, 2013, we effect
a one-for-fifteen reverse split of our common stock. All share information contained in this prospectus reflects the effects of
these reverse stock splits. The following description of our capital stock does not purport to be complete and should be reviewed
in conjunction with our certificate of incorporation, including our Certificate of Designations, Powers, Preferences and Rights
of the Series A Preferred Stock, or Series A Certificate of Designations, our Certificate of Designations, Powers, Preferences
and Rights of the Series B Preferred Stock, or Series B Certificate of Designations, and our bylaws.
Common Stock
All outstanding
shares of common stock are fully paid and nonassessable. The following summarizes the rights of holders of our common stock:
|
·
|
each
holder of common stock is entitled to one vote per share on all matters to be voted upon
generally by the stockholders;
|
|
·
|
subject
to preferences that may apply to shares of preferred stock outstanding, the holders of
common stock are entitled to receive lawful dividends as may be declared by our board
of directors, or Board;
|
|
·
|
upon
our liquidation, dissolution or winding up, the holders of shares of common stock are
entitled to receive a pro rata portion of all our assets remaining for distribution after
satisfaction of all our liabilities and the payment of any liquidation preference of
any outstanding preferred stock;
|
|
·
|
there
are no redemption or sinking fund provisions applicable to our common stock; and
|
|
·
|
there
are no preemptive or conversion rights applicable to our common stock.
|
Transfer Agent and Registrar
Our shares of
common stock are traded on The NASDAQ Capital Market under the symbol “PEIX.” The transfer agent and registrar for
our common stock is American Stock Transfer & Trust Company, LLC. Its telephone number is (718) 921-8200.
DIVIDEND
POLICY
We have never
paid cash dividends on our common stock and do not intend to pay cash dividends on our common stock in the foreseeable future.
We anticipate that we will retain any earnings for use in the continued development of our business.
Our current
and future debt financing arrangements may limit or prevent cash distributions from our subsidiaries to us, depending upon the
achievement of specified financial and other operating conditions and our ability to properly service our debt, thereby limiting
or preventing us from paying cash dividends. Further, the holders of our outstanding Series B Preferred Stock are entitled to
dividends of 7% per annum, payable quarterly in arrears. In 2012 and 2013, we declared and paid in cash dividends on our outstanding
shares of Series B Preferred Stock as they became due. As of March 28, 2014, we had accrued unpaid dividends in respect of our
Series B Preferred Stock aggregating approximately $3.7 million. The holders of our outstanding Series B Preferred Stock have
agreed to forbear until March 31, 2015 from exercising any and all of their rights and remedies, if any, against us with respect
to such unpaid dividends, provided we remain current in the payment of future dividends. Accrued and unpaid dividends in respect
of our Series B Preferred Stock must be paid prior to the payment of any dividends in respect of shares of our common stock.
UNDERWRITING
Subject to the
conditions contained in an underwriting agreement dated the date of this prospectus supplement, the underwriters named below have
agreed to purchase, and we have agreed to sell, the number of shares listed opposite their names below. The underwriters are committed
to purchase and pay for all of the shares if any are purchased.
Underwriter
|
Number of Shares
|
Lazard Capital Market LLC
|
|
Cowen and Company, LLC
|
|
Craig-Hallum Capital Group
, LLC
|
|
Total
|
|
The underwriters
are offering the shares subject to its acceptance of the shares from us and subject to prior sale. The underwriting agreement
provides that the obligations of the underwriters to pay for and accept delivery of the shares offered by this prospectus supplement
are subject to the approval of certain legal matters by its counsel and to other conditions, including the absence of any material
adverse change in our business and the receipt of customary legal opinions, letters and certificates. The underwriters are committed
to take and pay for all of the shares being offered, if any are taken.
Commissions and Discounts
The underwriters
have advised us that they propose to offer the shares to the public at $ per share. The underwriters propose to offer
the shares to certain dealers at the same price less a concession of not more than $ per share. After this offering,
the public offering price, concession and reallowance to dealers may be reduced by the underwriters. No reduction will change
the amount of proceeds to be received by us as indicated on the cover page of this prospectus supplement. The shares of common
stock are offered by the underwriters as stated in this prospectus supplement, subject to receipt and acceptance and subject to
their right to reject any order in whole or in part.
The following
table summarizes the public offering price, underwriting discounts and commissions and proceeds before payment of other expenses:
|
|
|
Per Share
|
|
|
|
Total
|
|
Public offering price
|
|
$
|
|
|
|
$
|
|
|
Underwriting discounts and commissions
|
|
$
|
|
|
|
$
|
|
|
Proceeds, before payment of other expenses, to us
|
|
$
|
|
|
|
$
|
|
|
We have agreed
to reimburse the underwriters for their expenses, including the fees and expenses of their counsel. We estimate that the total
expenses payable by us in connection with this offering, other than the underwriting discounts and commissions referred to in
the table above, will be approximately $ , which includes approximately $ in expenses incurred by the underwriters
(including approximately in fees and expenses of their counsel) and approximately $ in expenses incurred by
us (including the fees and expenses of our counsel, independent registered public accountants and other miscellaneous expenses).
The
relationship between Lazard Freres & Co. LLC and Lazard Capital Markets LLC is governed by a business alliance agreement
between their respective parent companies. Pursuant to such agreement, Lazard Freres & Co. LLP referred this transaction
to Lazard Capital Markets LLC and will receive a referral fee from Lazard Capital Markets LLC in connection therewith; however,
such referral fee is not in addition to the fee paid by us to Lazard Capital Markets LLC described above.
Indemnification
We and the underwriters
have agreed to indemnify each other, and we have also agreed to indemnify the underwriters against certain liabilities, including
liabilities under the Securities Act and liabilities arising from breaches of representations and warranties contained in the
underwriting agreement. We have also agreed to contribute to payments the underwriters may be required to make in respect of such
liabilities.
Lock–up Agreements
We and each
of our executive officers and directors, subject to certain customary exceptions, have agreed not to dispose of or hedge any of
our shares of common stock or securities convertible into or exercisable or exchangeable for common stock for 90 days after the
date of this prospectus supplement without first obtaining the written consent of Lazard Capital Markets LLC and Cowen and Company, LLC.
The 90–day “lock–up” period during which we and our executive officers and directors are restricted from
engaging in transactions in our common stock or securities convertible into or exercisable or exchangeable for common stock is
subject to extension such that, in the event that either (i) during the last 17 days of the “lock–up” period,
we issue an earnings or financial results release or material news or a material event relating to us occurs, or (ii) prior
to the expiration of the “lock–up” period, we announce that we will release earnings or financial results during
the 16–day period beginning on the last day of the “lock–up” period, then in either case the expiration
of the “lock–up” period will be extended until the expiration of the 18–day period beginning on the issuance
of the earnings or financial results release or the occurrence of the material news or material event, as applicable.
Price Stabilization, Short Positions
In order to
facilitate the offering of our securities, the underwriters may engage in transactions that stabilize, maintain or otherwise affect
the price of our common stock.
These transactions
may include short sales, stabilizing transactions, purchases to cover positions created by short sales and passive market making.
The underwriters may sell more shares than they are obligated to purchase under the underwriting agreement, creating a short position.
A short position may be created if the underwriters are concerned that there may be downward pressure on the price of the common
stock in the open market after pricing that could adversely affect investors who purchased in this offering. The underwriters will close out any short position by purchasing shares in the open market. As an additional
means of facilitating this offering, the underwriters may bid for, and purchase, shares of our common stock in the open market
to stabilize the price of the common stock. These activities may raise or maintain the market price of our common stock above
independent market levels or prevent or slow a decline in the market price of our common stock. The underwriters are not required
to engage in these activities, and may end any of these activities without notice at any time. These transactions may be effected
on The NASDAQ Capital Market or otherwise.
Electronic Distribution
A prospectus
in electronic format may be made available on websites maintained by the underwriters. The underwriters may agree to allocate
a number of shares of common stock to other underwriters for sale to their online brokerage account holders. Internet distributions
will be allocated by the underwriters on the same basis as other allocations.
Listing
Our shares of common stock are traded
on The NASDAQ Capital Market under the symbol “PEIX.”
Transfer Agent and Registrar
The transfer
agent and registrar for our common stock is American Stock Transfer & Trust Company, LLC. Its telephone number is (718) 921-8200.
Selling Restrictions
No action has
been taken in any jurisdiction (except in the United States) that would permit a public offering of our common stock, or the possession,
circulation or distribution of this prospectus supplement, the accompanying prospectus or any other material relating to us or
our common stock in any jurisdiction where action for that purpose is required. Accordingly, our common stock may not be offered
or sold, directly or indirectly, and none of this prospectus supplement, the accompanying prospectus or any other offering material
or advertisements in connection with our common stock may be distributed or published, in or from any country or jurisdiction,
except in compliance with any applicable rules and regulations of any such country or jurisdiction.
European Economic
Area
In relation
to each Member State of the European Economic Area which has implemented the Prospectus Directive, each a “Relevant Member
State”, with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member
State, or the “Relevant Implementation Date”, our securities will not be offered to the public in that Relevant Member
State prior to the publication of a prospectus in relation to our securities that has been approved by the competent authority
in that Relevant Member State or, where appropriate, approved in another Relevant Member State and notified to the competent authority
in that Relevant Member State, all in accordance with the Prospectus Directive, except that, with effect from and including the
Relevant Implementation Date, an offer of our securities may be made to the public in that Relevant Member State at any time:
|
·
|
to
any legal entity that is a qualified investor as defined in the Prospectus Directive;
|
|
·
|
to
fewer than 100 or, if the Relevant Member State has implemented the relevant provision
of the 2010 PD Amending Directive, 150 natural or legal persons (other than qualified
investors as defined in the Prospectus Directive), as permitted under the Prospectus
Directive, subject to obtaining the prior consent of the manager for any such offer;
or
|
|
·
|
in
any other circumstances which do not require the publication by the issuer of a prospectus
pursuant to Article 3(2) of the Prospectus Directive,
|
provided that
no such offer of the securities shall require the issuer or any underwriter to publish a prospectus pursuant to Article 3
of the Prospectus Directive.
For the purposes
of this provision, the expression an “offer of securities to the public” in relation to any securities in any Relevant
Member State means the communication in any form and by any means of sufficient information on the terms of the offer and securities
to be offered so as to enable an investor to decide to purchase or subscribe securities, as the same may be varied in that Relevant
Member State by any measure implementing the Prospectus Directive in that Relevant Member State and the expression “Prospectus
Directive” means Directive 2003/71/EC (and amendments thereto, including the 2010 PD Amending Directive, to the extent implemented
in the Relevant Member State), and includes any relevant implementing measure in each Relevant Member State and the expression
“2010 PD Amending Directive” means Directive 2010/73/EU.
Switzerland
This document
does not constitute a prospectus within the meaning of Art. 652a of the Swiss Code of Obligations. The shares of common stock
will not be offered, directly or indirectly, to the public in Switzerland. Neither this document nor any other offering materials
relating to the shares of common stock may be distributed, published or otherwise made available in Switzerland except in a manner
which will not constitute a public offer of the shares of common stock in Switzerland.
Affiliations
The underwriters
and their affiliates may in the future provide various investment banking, financial advisory and other financial services to
us and our affiliates for which they may receive advisory or transaction fees, as applicable, plus out-of-pocket expenses of the
nature and in amounts customary in the industry for these financial services. We expect to continue to use Lazard Capital Markets LLC, Cowen and Company, LLC and their respective affiliates for various services in the future.
LEGAL
MATTERS
The validity
of the securities being offered by this prospectus will be passed upon by our counsel, Troutman Sanders LLP, Irvine, California.
Certain legal matters will be passed upon for the underwriters by Proskauer Rose LLP, New York, New York.
EXPERTS
The consolidated financial statements incorporated in this
Prospectus by reference to the Annual Report on Form 10-K for the year ended December 31, 2013, have been audited by Hein &
Associates LLP, an independent registered public accounting firm, as stated in their reports incorporated by reference herein,
and have been so incorporated in reliance upon such reports and upon the authority of such firm as experts in accounting and auditing.
WHERE
YOU CAN FIND MORE INFORMATION
We file annual,
quarterly and current reports, proxy statements and other information with the Securities and Exchange Commission. We also filed
a registration statement on Form S-3, including exhibits, under the Securities Act with respect to the securities offered by this
prospectus supplement. This prospectus supplement and the accompanying prospectus is a part of the registration statement, but
neither this prospectus supplement nor the accompanying prospectus contains all of the information included in the registration
statement or the exhibits.
A copy the registration
statement and any other document that we file with the Securities and Exchange Commission are available to the public over the
Internet at the Securities and Exchange Commission’s website at
www.sec.gov
. You may also read and copy, at prescribed
rates, any document we file with the Securities and Exchange Commission at the Public Reference Room of the Securities and Exchange
Commission located at 100 F Street, N.E., Washington, D.C. 20549. Please call the Securities and Exchange Commission at (800) SEC-0330
for further information on the Securities and Exchange Commission’s Public Reference Rooms.
INCORPORATION
OF CERTAIN DOCUMENTS BY REFERENCE
The Securities
and Exchange Commission allows us to “incorporate by reference” the information we file with the Securities and Exchange
Commission. This means that we can disclose important information to you by referring you to another filed document. Any information
referred to in this way is considered part of this prospectus from the date we file that document. Any reports filed by us with
the Securities and Exchange Commission after the date of this prospectus and before the date that the offering of the securities
by means of this prospectus is terminated will automatically update and, where applicable, supersede any information contained
in this prospectus or incorporated by reference in this prospectus. Accordingly, we incorporate by reference the following documents
or information filed with the Securities and Exchange Commission:
|
·
|
Annual
Report on Form 10-K for the fiscal year ended December 31, 2013 filed with the Securities
and Exchange Commission on March 31, 2014;
|
|
·
|
Annual
Report on Form 10-K/A for the fiscal year ended December 31, 2013 filed with the
Securities and Exchange Commission on April 2, 2014;
|
|
·
|
Current
Reports on Form 8-K filed with the Securities and Exchange Commission on February 26,
2014 and April 2, 2014;
|
|
·
|
The
description of our capital stock contained in our Current Report on Form 8-K filed
with the Securities and Exchange Commission on June 8, 2007; and
|
|
·
|
All
documents filed by us with the Securities and Exchange Commission under Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act on or after the date of this prospectus and before
the termination of the offering under this prospectus, other than documents or information
deemed furnished and not filed in accordance with Securities and Exchange Commission
rules.
|
We will provide
a copy of the documents we incorporate by reference (including exhibits to such filings that we have specifically incorporated
by reference in such filings), at no cost, to any person who received this prospectus. To request a copy of any or all of these
documents, you should write or telephone us at: Investor Relations, Pacific Ethanol, Inc., 400 Capitol Mall, Suite 2060, Sacramento,
California 95814, (916) 403-2123. In addition, each document incorporated by reference is readily accessible on our website at
www.pacificethanol.com
. We are not incorporating the information on our website other than these filings into this prospectus
supplement.
You should rely
only on the information provided or incorporated by reference in this prospectus supplement. We have not authorized anyone else
to provide you with different information. You should not assume that the information in this prospectus supplement is accurate
as of any date other than the date on the cover page of such documents.
PROSPECTUS
PACIFIC ETHANOL, INC.
$100,000,000
Debt Securities
Common Stock
Preferred Stock
Warrants
Units
This prospectus relates
to the sale from time to time in one or more offerings of up to $100,000,000 of:
|
•
|
debt securities, which we may issue in one or more series;
|
|
•
|
shares of our common stock;
|
|
•
|
shares of our preferred stock, which we may issue in one or more series or classes;
|
|
•
|
warrants to purchase our debt securities, common stock or preferred stock; and
|
We will provide the specific
terms of any securities to be offered in one or more supplements to this prospectus. The prospectus supplements may also add, update
or change information contained in this prospectus. This prospectus may not be used to offer and sell securities unless accompanied
by a prospectus supplement.
When securities are offered
under this prospectus, we will provide you with a prospectus supplement describing the specific securities being offered, the manner
in which they are being offered, the offering price of the securities and the net proceeds from the sale of those securities. The
securities may be offered separately or together in any combination or as a separate series. You should carefully read this prospectus
and any accompanying prospectus supplement, together with any documents incorporated by reference herein and therein, before you
invest in our securities. We may sell these securities to or through underwriters, to other purchasers, through dealers or agents
or through any combination of these methods, on a continuous or delayed basis. See “Plan of Distribution.” The names
of the underwriters, dealers and agents, if any, will be set forth in the accompanying prospectus supplement. If any underwriters,
dealers or agents are involved in the sale of any securities, the applicable prospectus supplement will also set forth any applicable
commissions or discounts payable to them.
Our common stock is traded
on The NASDAQ Capital Market under the symbol “PEIX.” On May 10, 2012, the last reported sale price
of our common stock on The NASDAQ Capital Market was $0.94.
_______________
Investing in our securities
involves substantial risks. See “Risk Factors” beginning on page 4 of this prospectus and in the applicable
prospectus supplement, and in any other document incorporated by reference herein or therein, for factors you should consider before
buying any of our securities.
_______________
This prospectus may not
be used to consummate a sale of any securities unless accompanied by a prospectus supplement.
The securities may be sold
directly by us to investors, through agents designated from time to time or to or through underwriters or dealers, on a continuous
or delayed basis. For additional information on the methods of sale, you should refer to the section entitled “Plan
of Distribution” in this prospectus. If any agents or underwriters are involved in the sale of any securities
with respect to which this prospectus is being delivered, the names of such agents or underwriters and any applicable fees, commissions,
discounts and over-allotment options will be set forth in a prospectus supplement. The price to the public of such securities
and the net proceeds that we expect to receive from such sale will also be set forth in a prospectus supplement.
Neither the Securities
and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The date of this prospectus
is May 17, 2012.
TABLE OF CONTENTS
|
Page
|
|
|
ABOUT THIS PROSPECTUS
|
1
|
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
|
2
|
PACIFIC ETHANOL, INC.
|
3
|
RISK FACTORS
|
4
|
USE OF PROCEEDS
|
5
|
RATIO OF EARNINGS TO FIXED CHARGES
|
5
|
DESCRIPTION OF DEBT SECURITIES
|
6
|
DESCRIPTION OF CAPITAL STOCK
|
18
|
DESCRIPTION OF PREFERRED STOCK
|
25
|
DESCRIPTION OF WARRANTS
|
28
|
DESCRIPTION OF UNITS
|
29
|
GLOBAL SECURITIES
|
31
|
PLAN OF DISTRIBUTION
|
33
|
DISCLOSURE OF COMMISSION POSITION ON INDEMNIFICATION FOR SECURITIES ACT LIABILITIES
|
35
|
LEGAL MATTERS
|
35
|
EXPERTS
|
35
|
WHERE YOU CAN FIND MORE INFORMATION
|
36
|
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
|
37
|
ABOUT THIS PROSPECTUS
This prospectus is part
of a “shelf” registration statement that we have filed with the Securities and Exchange Commission. By using a shelf
registration statement, we may sell, at any time and from time to time in one or more offerings, any combination of the securities
described in this prospectus, up to a total dollar amount of $100,000,000. This prospectus provides you with a general
description of the securities that we may offer. Each time we sell securities, we will provide a prospectus supplement and attach
it to this prospectus. The prospectus supplement will contain more specific information about the terms of that offering, including
the specific amounts, prices and terms of the securities offered. The prospectus supplements may also add, update or change information
contained or incorporated by reference in this prospectus. Any statement that we make in this prospectus will be modified or superseded
by any inconsistent statement made by us in a prospectus supplement. If there is any inconsistency between the information in this
prospectus and the information in the prospectus supplement, you should rely on the information in the prospectus supplement. THIS
PROSPECTUS MAY NOT BE USED TO CONSUMMATE A SALE OF SECURITIES UNLESS IT IS ACCOMPANIED BY A PROSPECTUS SUPPLEMENT.
The exhibits to the registration
statement of which this prospectus is a part contain the full text of certain contracts and other important documents we have summarized
in this prospectus. Because these summaries may not contain all the information that you may find important in deciding whether
to purchase the securities we may offer, you should review the full text of these documents. The registration statement and the
exhibits can be obtained from the Securities and Exchange Commission as indicated under the heading “Where You Can Find Additional
Information” below.
You should rely only on
the information contained or incorporated by reference in this prospectus or any applicable prospectus supplements filed with the
Securities and Exchange Commission. We have not authorized anyone to provide you with different information and, if you are given
any information or representation about these matters that is not contained or incorporated by reference in this prospectus or
a prospectus supplement, you must not rely on that information. We are not making an offer to sell securities in any jurisdiction
where the offer or sale of such securities is not permitted.
Neither the delivery
of this prospectus or any applicable prospectus supplement
nor any sale made using this prospectus or any applicable prospectus
supplement implies that there has been no change in our affairs or that the information in this prospectus or in any applicable
prospectus supplement is correct as of any date after their respective dates. You should not assume that the information in or
incorporated by reference in this prospectus or any applicable prospectus supplement prepared by us, is accurate as of any date
other than the date(s) on the front covers of those documents. Our business, financial condition, results of operations and prospects
may have changed since those dates.
When used in this prospectus,
the terms “Pacific Ethanol,” “we,” “our” and “us” refer to Pacific Ethanol, Inc.
and its consolidated subsidiaries, unless otherwise specified. Unless otherwise stated or indicated by context, the
phrase “this prospectus” refers to the prospectus and any applicable prospectus supplement.
CAUTIONARY NOTE REGARDING
FORWARD-LOOKING STATEMENTS
This prospectus and the
documents incorporated by reference into this prospectus contain “forward-looking statements” and are intended to be
covered by the safe harbor provided for under Section 27A of the Securities Act of 1933, as amended, or Securities Act, and Section
21E of the Securities Exchange Act of 1934, as amended, or Exchange Act. These forward-looking statements include our
current expectations and projections about future results, performance, prospects and opportunities. We have tried to identify
these forward-looking statements by using words like “believe,” “expect,” “may,” “will,”
“could,” “seek,” “estimate,” “continue,” “anticipate,” “intend,”
“future,” “plan” or variations of those terms and other similar expressions, including their use in the
negative. 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 and any applicable prospectus supplement. These forward-looking statements are subject to a number
of risks, uncertainties and other factors that could cause our actual results, performance, prospects or opportunities to differ
materially from those expressed in, or implied by, these forward-looking statements.
These risks, uncertainties
and other factors include, but are not limited to, those set forth under “Risk Factors” included in our most recent
Annual Report on Form 10-K or any updates in our Quarterly Reports on Form 10-Q, together with all of the other information appearing
in or incorporated by reference into this prospectus and any applicable prospectus supplement. Given these risks and
uncertainties, readers are cautioned not to place undue reliance on our forward-looking statements. Projections included
in such risk factors have been prepared based on assumptions, which we believe to be reasonable, but not in accordance with United
States generally accepted accounting principles or any guidelines of the Securities and Exchange Commission. Actual
results will vary, perhaps materially, and we undertake no obligation to update the projections at any future date. You
are strongly cautioned not to place undue reliance on such projections. All subsequent written and oral forward-looking
statements attributable to Pacific Ethanol or to persons acting on our behalf are expressly qualified in their entirety by these
cautionary statements. Except as required by federal securities laws, we do not intend to update or revise any forward-looking
statements, whether as a result of new information, future events or otherwise.
PACIFIC ETHANOL, INC.
Overview
We are the leading marketer
and producer of low-carbon renewable fuels in the Western United States.
We market all the ethanol
produced by four ethanol production facilities located in California, Idaho and Oregon, or Pacific Ethanol Plants, all the ethanol
produced by three other ethanol producers in the Western United States and ethanol purchased from other third-party suppliers throughout
the United States. We also market ethanol co-products, including wet distillers grains and syrup, or WDG, for the Pacific Ethanol
Plants.
We have extensive customer
relationships throughout the Western United States. Our ethanol customers are integrated oil companies and gasoline marketers who
blend ethanol into gasoline. We arrange for transportation, storage and delivery of ethanol purchased by our customers through
our agreements with third-party service providers in the Western United States, primarily in California, Arizona, Nevada,
Utah, Oregon, Colorado, Idaho and Washington. Our WDG customers are dairies and feedlots located near the Pacific Ethanol Plants.
We have extensive supplier
relationships throughout the Western and Midwestern United States. In some cases, we have marketing agreements with suppliers to
market all of the output of their facilities.
We hold a 34% ownership
interest in New PE Holdco LLC, or New PE Holdco, the owner of each of the plant holding companies, or the Plant Owners, that collectively
own the Pacific Ethanol Plants. We operate and maintain the Pacific Ethanol Plants under the terms of an asset management agreement
with New PE Holdco and the Plant Owners, including supplying all goods and materials necessary to operate and maintain each Pacific
Ethanol Plant. In operating the Pacific Ethanol Plants, we direct the production process to obtain optimal production yields, lower
costs by leveraging our infrastructure, enter into risk management agreements such as insurance policies and manage commodity risk
practices. We are also in complete charge of, and have care and custody over, each Pacific Ethanol Plant that is not operational,
and provide recommendations as to when a Pacific Ethanol Plant should become operational. We perform all activities necessary to
support a cost effective return of any idled Pacific Ethanol Plant to operational status once New PE Holdco approves our recommendation
to re-start an idled Pacific Ethanol Plant.
We market ethanol and WDG
produced by the Pacific Ethanol Plants under the terms of separate marketing agreements with the Plant Owners whose facilities
are operational. The marketing agreements provide us with the absolute discretion to solicit, negotiate, administer (including
payment collection), enforce and execute ethanol and co-product sales agreements with any third party.
The Pacific Ethanol Plants
are comprised of the four facilities described immediately below, three of which are currently operational. When market conditions
permit, and with approval of New PE Holdco, we intend to resume operations at the Madera, California facility.
Facility Name
|
Facility Location
|
Estimated Annual Capacity
(gallons)
|
Current Operating Status
|
Magic Valley
|
Burley, ID
|
60,000,000
|
Operating
|
Columbia
|
Boardman, OR
|
40,000,000
|
Operating
|
Stockton
|
Stockton, CA
|
60,000,000
|
Operating
|
Madera
|
Madera, CA
|
40,000,000
|
Idled
|
We also provide operations,
maintenance and accounting services for a 250,000 gallon per year cellulosic integrated biorefinery owned by ZeaChem Inc. in Boardman,
Oregon, which is adjacent to the Pacific Ethanol Columbia plant.
Corporate Information
We are a Delaware corporation
that was incorporated in February 2005. Our principal executive offices are located at 400 Capitol Mall, Suite 2060,
Sacramento, California 95814. Our telephone number is (916) 403-2123 and our Internet website is
www.pacificethanol.net
. The
content of our Internet website does not constitute a part of this prospectus.
In 2006, we began constructing
the first of the four Pacific Ethanol Plants and were continuously engaged in plant construction until the fourth facility was
completed in 2008. In late 2008 and early 2009, we idled production at three of the Pacific Ethanol Plants due to adverse market
conditions and lack of adequate working capital. On May 17, 2009, each of the Plant Owners filed voluntary petitions for relief
under chapter 11 of Title 11 of the United States Bankruptcy Code, or Bankruptcy Code, in the United States Bankruptcy Court for
the District of Delaware, or Bankruptcy Court, in an effort to restructure their indebtedness. On April 16, 2010, the Plant Owners
filed a joint plan of reorganization, or Plan, with the Bankruptcy Court, which was structured in cooperation with a number of
the Plant Owners’ secured lenders. The Bankruptcy Court confirmed the Plan at a hearing on June 8, 2010. On June 29, 2010,
or Effective Date, the Plant Owners emerged from bankruptcy under the terms of the Plan. Under the Plan, on the Effective Date,
all of the ownership interests in the Plant Owners were transferred to New PE Holdco, which was wholly-owned as of that date by
some of the prepetition lenders to the Plant Owners and new lenders to the Plant Owners. As a result, the Pacific Ethanol Plants
became wholly-owned by New PE Holdco as of the Effective Date.
RISK FACTORS
Investing in our securities
involves significant risks. Before making an investment decision, you should consider carefully the risks, uncertainties
and other factors described in our most recent Annual Report on Form 10-K, as supplemented and updated by subsequent quarterly
reports on Form 10-Q and current reports on Form 8-K that we have filed or will file with the Securities and Exchange Commission,
and in documents which are incorporated by reference into this prospectus, as well as the risk factors and other information contained
in or incorporated by reference into the applicable prospectus supplement.
If any of these risks were
to occur, our business, affairs, prospects, assets, financial condition, results of operations and cash flow could be materially
and adversely affected. If this occurs, the market or trading price of our securities could decline, and you could lose
all or part of your investment. In addition, please read “Cautionary Note Regarding Forward-Looking Statements”
in this prospectus, where we describe additional uncertainties associated with our business and the forward-looking statements
included or incorporated by reference into this prospectus.
USE OF PROCEEDS
We will retain broad discretion
over the use of the net proceeds from the sale of the securities offered by this prospectus. Unless otherwise specified in the
applicable prospectus supplement, we currently expect to use the net proceeds of our sale of securities for general corporate purposes,
which may include, among other things, working capital requirements, capital expenditures, acquisitions, acquisitions of additional
ownership interests in New PE Holdco, and the repayment of outstanding indebtedness. Pending these uses, we expect
to invest the net proceeds in demand deposit accounts or short-term, investment-grade securities.
RATIO OF EARNINGS TO FIXED
CHARGES
The following summary is
qualified by the more detailed information appearing in the computation table found in Exhibit 12.1 to the registration statement
of which this prospectus is part and the historical financial statements, including the notes to those financial statements, incorporated
by reference in this prospectus.
Our earnings are inadequate
to cover fixed charges. The following table sets forth the dollar amount of the coverage deficiency for all periods
(in thousands):
|
|
Year Ended December 31,
|
|
|
|
2011
|
|
|
2010
|
|
|
2009
|
|
|
2008
|
|
|
2007
|
|
Ratio of Earnings to Fixed Charges
|
|
|
1.12x
|
|
|
|
7.46x
|
|
|
|
—
|
|
|
|
—
|
|
|
|
0.3x
|
|
Excess (Deficiency) of Earnings Available to Cover Fixed Charges
|
|
$
|
1,985
|
|
|
$
|
72,121
|
|
|
$
|
(310,948
|
)
|
|
$
|
(160,371
|
)
|
|
$
|
(27,101
|
)
|
DESCRIPTION OF DEBT SECURITIES
The complete terms of the
debt securities will be contained in the indenture and supplemental indenture applicable to the debt securities. These documents
have been or will be included or incorporated by reference as exhibits to the registration statement of which this prospectus is
a part. You should read the indenture and supplemental indenture. You should also read the prospectus supplement, which will contain
additional information and which may update or change some of the information below.
This section describes the
general terms of the debt securities that we may offer using this prospectus. Further terms of the debt securities will be stated
in the applicable prospectus supplement. The following description and any description of the debt securities in a prospectus supplement
may not be complete and is subject to and qualified in its entirety by reference to the terms of the applicable indenture, supplemental
indenture and form of debt security.
General
We may issue debt securities,
in one or more series, as either senior or subordinated debt or as senior or subordinated convertible or exchangeable debt. The
senior debt securities will rank equally with any other unsubordinated debt that we may have and may be secured or unsecured. The
subordinated debt securities will be subordinate and junior in right of payment, to the extent and in the manner described in the
instrument governing the debt, to all or some portion of our senior indebtedness. Any convertible debt securities that we may issue
will be convertible into or exchangeable for common stock or other securities of Pacific Ethanol. Conversion may be mandatory or
at your option and would be at prescribed conversion rates.
The debt securities will
be issued under one or more indentures, which are contracts between us and an eligible banking institution or other eligible party,
as trustee. While the terms we have summarized below will apply generally to any debt securities that we may offer under this prospectus,
we will describe the particular terms of any debt securities that we may offer in more detail in a prospectus supplement.
We will issue the senior
debt securities under the senior indenture that we will enter into with the trustee named in the senior indenture. We will issue
the subordinated debt securities under the subordinated indenture that we will enter into with the trustee named in the subordinated
indenture. We have filed forms of these documents as exhibits to the registration statement of which this prospectus is a part.
We use the term “indentures” to refer to both the senior indenture and the subordinated indenture.
The following summaries
of the material provisions of the senior debt securities, the subordinated debt securities and the indentures are not complete
and are qualified in their entirety by reference to all of the provisions of the indenture applicable to a particular series of
debt securities. You should read the applicable prospectus supplement that we may authorize to be provided to you related to the
series of debt securities being offered, as well as the complete indentures that contain the terms of the debt securities. Forms
of indentures have been filed as exhibits to the registration statement of which this prospectus is a part, and we will file supplemental
indentures and forms of debt securities containing the terms of the debt securities being offered as exhibits to the registration
statement of which this prospectus is a part or such supplemental indentures will be incorporated by reference to reports that
we file with the Securities and Exchange Commission. Except as we may otherwise indicate, the terms of the senior indenture and
the subordinated indenture are identical.
The indentures will be qualified
under the Trust Indenture Act of 1939, as amended. We use the term “indenture trustee” to refer to either the senior
trustee or the subordinated trustee, as applicable.
The indentures do not limit
the amount of other debt that we may incur and do not contain financial or similar restrictive covenants. The indentures do not
contain any provision to protect holders of debt securities against a sudden or dramatic decline in our ability to pay our debt.
The prospectus supplement
will describe the debt securities offered and the price or prices at which we will offer the debt securities. The description will
include:
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the title of the debt securities;
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whether the debt securities are senior debt securities or subordinated debt securities and, if subordinated debt securities, the related subordination terms;
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principal amount being offered, and, if a series, the total amount authorized and the total amount outstanding;
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any limit on the aggregate principal amount of the debt securities or the series of which they are a part;
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the date or dates on which we must pay the principal;
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whether the debt securities will be issued with any original issue discount;
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whether the debt securities are convertible into common stock or other securities or property and, if so, the terms and conditions upon which conversion will be effected, including the initial conversion price or conversion rate and any adjustments thereto and the conversion period;
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the rate or rates at which the debt securities will bear interest, if any, the date or dates from which interest will accrue, and the dates on which we must pay interest;
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whether and under what circumstances, if any, we will pay a premium or additional amounts on any debt securities;
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the place or places where we must pay the principal and any premium or interest on the debt securities;
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the terms and conditions on which we may redeem or retire any debt security, if at all;
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any obligation to redeem or repurchase any debt securities, and the terms and conditions on which we must do so;
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the denominations in which we may issue the debt securities if other than denominations of $1,000 and any integral multiple thereof;
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the manner in which we will determine the amount of principal of or any premium or interest or additional amounts on the debt securities;
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the principal amount of the debt securities that we will pay upon declaration of acceleration of their maturity if other than 100%;
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the amount that will be deemed to be the principal amount for any purpose, including the principal amount that will be due and payable upon any maturity or that will be deemed to be outstanding as of any date;
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whether the debt securities will be secured or unsecured, and the terms of any secured debt;
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whether the debt securities are defeasible;
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if applicable, the terms of any right to convert debt securities into, or exchange debt securities for, shares of common stock or other securities or property;
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restrictions on transfer, sale or other assignment, if any;
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our right, if any, to defer payment of interest and the maximum length of any such deferral period;
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provisions for a sinking fund, purchase or other analogous fund, if any;
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whether we will issue the debt securities in the form of one or more global securities and, if so, the respective depositaries for the global securities and the terms of the global securities;
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any addition to or change in the events of default applicable to the debt securities and any change in the right of the trustee or the holders to declare the principal amount of any of the debt securities due and payable;
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any addition to or change in the covenants in the indentures, including whether the indenture will restrict our ability or the ability of our subsidiaries to:
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incur additional indebtedness;
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issue additional securities;
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pay dividends or make distributions in respect of our capital shares or the capital shares of our subsidiaries;
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place restrictions on our subsidiaries’ ability to pay dividends, make distributions or transfer assets;
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make investments or other restricted payments;
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sell or otherwise dispose of assets;
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enter into sale-leaseback transactions;
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engage in transactions with stockholders or affiliates;
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issue or sell shares of our subsidiaries; or
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effect a consolidation or merger;
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whether the indenture will require us to maintain any interest coverage, fixed charge, cash flow-based, asset-based or other financial ratios;
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a discussion of any material United States federal income tax considerations applicable to the debt securities;
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information describing any book-entry features;
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procedures for any auction or remarketing, if any; and
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any other specific terms, preferences, rights or limitations of, or restrictions on, the debt securities, including any events of default that are in addition to those described in this prospectus or any covenants provided with respect to the debt securities that are in addition to those described above, and any terms that may be required by us or advisable under applicable laws or regulations or advisable in connection with the marketing of the debt securities.
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We may sell the debt securities
at a substantial discount below their stated principal amount. We will describe United States federal income tax considerations,
if any, applicable to debt securities sold at an original issue discount in the prospectus supplement. An “original issue
discount security” is any debt security that provides for an amount less than the principal amount to be due and payable
upon the declaration of acceleration of the maturity under the terms of the applicable indenture. The prospectus supplement relating
to any original issue discount securities will describe the particular provisions relating to acceleration of the maturity upon
the occurrence of an event of default. In addition, we will describe United States federal income tax or other considerations applicable
to any debt securities that are denominated in a currency or unit other than United States dollars in the prospectus supplement.
Conversion and Exchange
Rights
The applicable prospectus
supplement will describe, if applicable, the terms on which you may convert debt securities into or exchange them for common stock
or other securities or property of ours. The conversion or exchange may be mandatory or may be at your option. The prospectus supplement
will describe how the number of shares of common stock or other securities or property to be received upon conversion or exchange
would be calculated.
Subordination of Subordinated
Debt Securities
Unless the prospectus supplement
indicates otherwise, the following provisions will apply to the subordinated debt securities. The indebtedness underlying the subordinated
debt securities will be payable only if all payments due under our senior indebtedness, including any outstanding senior debt securities,
have been made. If we distribute our assets to creditors upon any dissolution, winding-up, liquidation or reorganization or in
bankruptcy, insolvency, receivership or similar proceedings, we must first pay all amounts due or to become due on all senior indebtedness
before we pay the principal of, or any premium or interest on, the subordinated debt securities. In the event the subordinated
debt securities are accelerated because of an event of default, we may not make any payment on the subordinated debt securities
until we have paid all senior indebtedness or the acceleration is rescinded. If the payment of subordinated debt securities accelerates
because of an event of default, we must promptly notify holders of senior indebtedness of the acceleration.
Unless otherwise indicated
in a prospectus supplement, we may not make any payment on the subordinated debt securities if a default in the payment of the
principal of, premium, if any, interest or other obligations, including a default under any repurchase or redemption obligation,
in respect of senior indebtedness occurs and continues beyond any applicable grace period. We may not make any payment on the subordinated
debt securities if any other default occurs and continues with respect to senior indebtedness that permits holders of the senior
indebtedness to accelerate its maturity and the trustee receives a notice of such default from us, a holder of such senior indebtedness
or other person permitted to give such notice. We may not resume payments on the subordinated debt securities until the defaults
are cured or certain periods pass.
If we experience a bankruptcy,
dissolution or reorganization, holders of senior indebtedness may receive more, ratably, and holders of subordinated debt securities
may receive less, ratably, than our other creditors.
The indentures in the forms
initially filed as exhibits to the registration statement of which this prospectus is a part do not limit the amount of indebtedness
which we may incur, including senior indebtedness or subordinated indebtedness, and do not limit us from issuing any other debt,
including secured debt or unsecured debt.
Form, Exchange and Transfer
We will issue debt securities
only in fully registered form, without coupons, and, unless otherwise specified in the prospectus supplement, only in denominations
of $1,000 and any integral multiple thereof. The indentures provide that we may issue debt securities of a series in temporary
or permanent global form and as book-entry securities that will be deposited with, or on behalf of, The Depository Trust Company,
or DTC, or another depositary named by us and identified in a prospectus supplement with respect to that series. We currently anticipate
that the debt securities of each series offered and sold pursuant to this prospectus will be issued as global debt securities as
described under “Global Securities” and will trade in book-entry form only.
At the option of the holder,
subject to the terms of the indentures and the limitations applicable to global securities described in the applicable prospectus
supplement, the holder of the debt securities of any series can exchange the debt securities for other debt securities of the same
series, in any authorized denomination and of like tenor and aggregate principal amount.
Subject to the terms of
the indentures and the limitations applicable to global securities set forth in the applicable prospectus supplement, holders of
the debt securities may present the debt securities for exchange or for registration of transfer, duly endorsed or with the form
of transfer endorsed thereon duly executed if so required by us or the security registrar, at the office of the security registrar
or at the office of any transfer agent designated by us for this purpose. Unless otherwise provided in the debt securities that
the holder presents for transfer or exchange, we will make no service charge for any registration of transfer or exchange, but
we may require payment of any taxes or other governmental charges.
We will name in the applicable
prospectus supplement the security registrar, and any transfer agent in addition to the security registrar, that we initially designate
for any debt securities. We may at any time designate additional transfer agents or rescind the designation of any transfer agent
or approve a change in the office through which any transfer agent acts, except that we will be required to maintain a transfer
agent in each place of payment for the debt securities of each series.
If we elect to redeem the
debt securities of any series, we will not be required to:
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issue, register the transfer or exchange of any debt securities of any series being redeemed in part during a period beginning at the opening of business 15 days before the day of mailing of a notice of redemption of any debt securities that may be selected for redemption and ending at the close of business on the day of the mailing; or
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register the transfer of or exchange any debt securities so selected for redemption, in whole or in part, except the unredeemed portion of any debt securities we are redeeming in part.
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Consolidation, Merger and
Sale of Assets
Unless otherwise specified
in the prospectus supplement, we may not consolidate with or merge into, or sell, convey, transfer, lease or otherwise dispose
of all or substantially all of our properties and assets to, any person, and shall not permit any other person to consolidate with
or merge into us, unless:
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either: (i) we are the surviving corporation or (ii) the person formed by or surviving any consolidation, amalgamation or merger or resulting from such conversion (if other than Pacific Ethanol) or to which such sale, assignment, transfer, conveyance or other disposition has been made, is a corporation, limited liability company or limited partnership organized and validly existing under the laws of the United States, any state of the United States or the District of Columbia and assumes our obligations under the debt securities and under the indentures pursuant to agreements reasonably satisfactory to the indenture trustee;
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immediately before and after giving pro forma effect to such transaction, no event of default, and no event which, after notice or lapse of time or both, would become an event of default, has occurred and is continuing; and
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several other conditions, including any additional conditions with respect to any particular debt securities specified in the applicable prospectus supplement, are met.
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The terms of any securities
that we may offer pursuant to this prospectus may limit our ability to merge or consolidate or otherwise sell, convey, transfer
or otherwise dispose of all or substantially all of our assets, which terms would be set forth in the applicable prospectus supplement
and supplemental indenture.
Events of Default
Unless otherwise specified
in the applicable prospectus supplement, it is anticipated that each of the following will constitute an event of default under
the applicable indenture with respect to debt securities of any series:
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failure to pay principal of or any premium on any debt security of that series when due, whether or not, in the case of subordinated debt securities, such payment is prohibited by the subordination provisions of the subordinated indenture;
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failure to pay any interest on any debt securities of that series when due, continued for 30 days, whether or not, in the case of subordinated debt securities, such payment is prohibited by the subordination provisions of the subordinated indenture;
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failure to deposit any sinking fund payment, when due, in respect of any debt security of that series, whether or not, in the case of subordinated debt securities, such deposit is prohibited by the subordination provisions of the subordinated indenture;
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failure to perform or comply with the provisions described under “—Consolidation, Merger and Sale of Assets”;
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failure to perform any of our other covenants in such indenture (other than a covenant included in such indenture solely for the benefit of a series other than that series), continued for 60 days after written notice has been given to us by the applicable indenture trustee, or the holders of at least 25% in principal amount of the outstanding debt securities of that series, as provided in such indenture; and
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certain events of bankruptcy, insolvency or reorganization affecting us or any significant subsidiary.
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If an event of default (other
than an event of default with respect to Pacific Ethanol described in the last item listed above) with respect to the debt securities
of any series at the time outstanding occurs and is continuing, either the applicable trustee or the holders of at least 25% in
principal amount of the outstanding debt securities of that series by notice as provided in the applicable indenture may declare
the principal amount of the debt securities of that series (or, in the case of any debt security that is an original issue discount
debt security, such portion of the principal amount of such debt security as may be specified in the terms of such debt security)
to be due and payable immediately, together with any accrued and unpaid interest thereon. If an event of default with respect to
Pacific Ethanol described in the last item listed above with respect to the debt securities of any series at the time outstanding
occurs, the principal amount of all the debt securities of that series (or, in the case of any such original issue discount security,
such specified amount) will automatically, and without any action by the applicable trustee or any holder, become immediately due
and payable, together with any accrued and unpaid interest thereon. After any such acceleration, but before a judgment or decree
based on acceleration, the holders of a majority in principal amount of the outstanding debt securities of that series may, under
certain circumstances, rescind and annul such acceleration if all events of default, other than the non-payment of accelerated
principal (or other specified amount), have been cured or waived as provided in the applicable Indenture. For information as to
waiver of defaults, see “—Modification and Waiver” below.
Subject to the provisions
in the indentures relating to the duties of the trustees in case an event of default has occurred and is continuing, each trustee
will be under no obligation to exercise any of its rights or powers under the applicable indenture at the request or direction
of any of the holders, unless such holders have offered to such trustee reasonable security or indemnity. Subject to such provisions
for the indemnification of the trustees, the holders of a majority in principal amount of the outstanding debt securities of any
series will have the right to direct the time, method and place of conducting any proceeding for any remedy available to the trustee
or exercising any trust or power conferred on the trustee with respect to the debt securities of that series.
No holder of a debt security
of any series will have any right to institute any proceeding with respect to the applicable indenture, or for the appointment
of a receiver or a trustee, or for any other remedy thereunder, unless:
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such holder has previously given to the trustee under the applicable indenture written notice of a continuing event of default with respect to the debt securities of that series;
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the holders of not less than 25% in principal amount of the outstanding debt securities of that series have made written request, and such holder or holders have offered reasonable indemnity, to the trustee to institute such proceeding as trustee; and
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the trustee has failed to institute such proceeding, and has not received from the holders of a majority in principal amount of the outstanding debt securities of that series a direction inconsistent with such request, within 60 days after such notice, request and offer.
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However, such limitations
do not apply to a suit instituted by a holder of a debt security for the enforcement of payment of the principal of or any premium
or interest on such debt security on or after the applicable due date specified in such debt security.
We will be required to furnish
to each trustee annually, within 150 days after the end of each fiscal year, a certificate by certain of our officers as to whether
or not we, to their knowledge, are in default in the performance or observance of any of the terms, provisions and conditions of
the applicable indenture and, if so, specifying all such known defaults.
Modification and Waiver
Unless otherwise specified
in the prospectus supplement, modifications and amendments of an indenture may be made by us and the applicable trustee with the
consent of the holders of a majority in principal amount of the outstanding debt securities of each series affected by such modification
or amendment. However, no such modification or amendment may, without the consent of the holder of each outstanding
debt security affected thereby:
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change the stated maturity of the principal of, or time for payment of any installment of principal of or interest on, any debt security;
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reduce the principal amount of, or any premium or the rate of interest on, any debt security;
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reduce the amount of principal of an original issue discount security or any other debt security payable upon acceleration of the maturity thereof;
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change the place or the coin or currency of payment of principal of, or any premium or interest on, any debt security;
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impair the right to institute suit for the enforcement of any payment due on any debt security;
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modify the subordination provisions in the case of subordinated debt securities;
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reduce the percentage in principal amount of outstanding debt securities of any series, the consent of whose holders is required for modification or amendment of the indenture;
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reduce the percentage in principal amount of outstanding debt securities of any series necessary for waiver of compliance with certain provisions of the indenture or for waiver of certain defaults; or
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modify such provisions with respect to modification, amendment or waiver, except to increase any such percentage or to provide that certain other provisions of the indenture cannot be modified or waived without the consent of the holder of each outstanding debt security affected thereby.
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The holders of a majority
in principal amount of the outstanding debt securities of any series may waive compliance by us with certain restrictive provisions
of the applicable indenture. The holders of a majority in principal amount of the outstanding debt securities of any series may
waive any past default under the applicable indenture, except a default in the payment of principal, premium or interest and certain
covenants and provisions of the indenture which cannot be amended without the consent of the holder of each outstanding debt security
of such series.
Each of the indentures provides
that in determining whether the holders of the requisite principal amount of the outstanding debt securities have given or taken
any direction, notice, consent, waiver or other action under such indenture as of any date:
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the principal amount of an original issue discount security that will be deemed to be outstanding will be the amount of the principal that would be due and payable as of such date upon acceleration of maturity to such date;
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the principal amount of a debt security denominated in one or more foreign currencies or currency units that will he deemed to be outstanding will be the United States-dollar equivalent, determined as of such date in the manner prescribed for such debt security, of the principal amount of such debt security (or, in the case of an original issue discount security the United States dollar equivalent on the date of original issuance of such security of the amount determined as provided immediately above); and
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certain debt securities, including those owned by us or any of our other affiliates, will not be deemed to be outstanding.
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Except in certain limited
circumstances, we will be entitled to set any day as a record date for the purpose of determining the holders of outstanding debt
securities of any series entitled to give or take any direction, notice, consent, waiver or other action under the applicable indenture,
in the manner and subject to the limitations provided in the indenture. In certain limited circumstances, the trustee will be entitled
to set a record date for action by holders. If a record date is set for any action to be taken by holders of a particular series,
only persons who are holders of outstanding debt securities of that series on the record date may take such action.
Optional Redemption
If specified in the applicable
prospectus supplement, we may elect to redeem all or part of the outstanding debt securities of a series from time to time before
the maturity date of the debt securities of that series. Upon such election, we will notify the indenture trustee of the redemption
date and the principal amount of debt securities of the series to be redeemed. If less than all the debt securities of the series
are to be redeemed, the particular debt securities of that series to be redeemed will be selected by the depositary in accordance
with its procedures. The applicable prospectus supplement will specify the redemption price for the debt securities to be redeemed
(or the method of calculating such price), in each case in accordance with the terms and conditions of those debt securities.
Notice of redemption will
be given to each holder of the debt securities to be redeemed not less than 30 nor more than 60 days prior to the date set for
such redemption. This notice will include the following information, as applicable: the redemption date; the redemption price (or
the method of calculating such price); if less than all of the outstanding debt securities of such series are to be redeemed, the
identification (and, in the case of partial redemption, the respective principal amounts) of the particular debt securities to
be redeemed; that on the redemption date the redemption price will become due and payable upon each security to be redeemed and,
if applicable, that interest thereon will cease to accrue after such date; the place or places where such debt securities are to
be surrendered for payment of the redemption price; and that the redemption is for a sinking fund, if such is the case.
Prior to any redemption
date, we will deposit or cause to be deposited with the indenture trustee or with a paying agent (or, if we are acting as our own
paying agent with respect to the debt securities being redeemed, we will segregate and hold in trust as provided in the applicable
indenture) an amount of money sufficient to pay the aggregate redemption price of, and (except if the redemption date shall be
an interest payment date or the debt securities of such series provide otherwise) accrued interest on, all of the debt securities
or the part thereof to be redeemed on that date. On the redemption date, the redemption price will become due and payable upon
all of the debt securities to be redeemed, and interest, if any, on the debt securities to be redeemed will cease to accrue from
and after that date. Upon surrender of any such debt securities for redemption, we will pay those debt securities surrendered at
the redemption price together, if applicable, with accrued interest to the redemption date.
Any debt securities to be
redeemed only in part must be surrendered at the office or agency established by us for such purpose, and we will execute, and
the indenture trustee will authenticate and deliver to a holder without service charge, new debt securities of the same series
and of like tenor, of any authorized denominations as requested by that holder, in a principal amount equal to and in exchange
for the unredeemed portion of the debt securities that holder surrenders.
Satisfaction and Discharge
Each indenture will be discharged
and will cease to be of further effect as to all outstanding debt securities of any series issued thereunder, when:
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all outstanding debt securities of that series that have been authenticated (except lost, stolen or destroyed debt securities that have been replaced or paid and debt securities for whose payment money has theretofore been deposited in trust and thereafter repaid to us or discharged from such trust) have been delivered to the trustee for cancellation; or
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all outstanding debt securities of that series that have not been delivered to the trustee for cancellation have become due and payable or will become due and payable at their stated maturity within one year or are to be called for redemption within one year under arrangements satisfactory to the trustee;
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and in either case
we have irrevocably deposited with the trustee as trust funds for such purpose money in an amount sufficient, without consideration
of any reinvestment of interest, to pay and discharge the entire indebtedness of such debt securities not delivered to the trustee
for cancellation, for principal, premium, if any, and accrued interest to the date of such deposit (in the case of debt securities
that have become due and payable) or to the stated maturity or redemption date;
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we have paid or caused to be paid all other sums payable by us under the indenture with respect to the debt securities of that series; and
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we have delivered an officer’s certificate and an opinion of counsel to the trustee stating that all conditions precedent to satisfaction and discharge of the indenture with respect to the debt securities of that series have been complied with.
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Legal Defeasance and Covenant
Defeasance
If and to the extent indicated
in the applicable prospectus supplement, we may elect, at our option at any time, to have provisions of the indentures relating
to defeasance and discharge of indebtedness, which we call “legal defeasance,” relating to defeasance of certain restrictive
covenants applied to the debt securities of any series, or to any specified part of a series, which we call “covenant defeasance.”
Legal Defeasance
. The
indentures provide that, upon our exercise of our option (if any) to have the provisions relating to legal defeasance applied to
any debt securities, we will be discharged from all our obligations, and, if such debt securities are subordinated debt securities,
the provisions of the subordinated indenture relating to subordination will cease to be effective, with respect to such debt securities
(except for certain obligations to convert, exchange or register the transfer of debt securities, to replace stolen, lost or mutilated
debt securities, to maintain paying agencies and to hold moneys for payment in trust) upon the deposit in trust for the benefit
of the holders of such debt securities of money or United States government obligations, or both, which, through the payment of
principal and interest in respect thereof in accordance with their terms, will provide money in an amount sufficient to pay the
principal of and any premium and interest on such debt securities on the respective stated maturities in accordance with the terms
of the applicable indenture and such debt securities. Such defeasance or discharge may occur only if, among other things:
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we have delivered to the applicable trustee an opinion of counsel to the effect that we have received from, or there has been published by, the United States Internal Revenue Service a ruling, or there has been a change in tax law, in either case to the effect that holders of such debt securities will not recognize gain or loss for federal income tax purposes as a result of such deposit and legal defeasance and will be subject to federal income tax on the same amount, in the same manner and at the same times as would have been the case if such deposit and legal defeasance were not to occur;
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no event of default or event that with the passing of time or the giving of notice, or both, shall constitute an event of default shall have occurred and be continuing at the time of such deposit;
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such deposit and legal defeasance will not result in a breach or violation of, or constitute a default under, any agreement or instrument (other than the applicable indenture) to which we are a party or by which we are bound;
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we must deliver to the trustee an officer’s certificate stating that the deposit was not made by us with the intent of preferring the holders of the debt securities over any of our other creditors or with the intent of defeating, hindering, delaying or defrauding any of our other creditors or others;
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we must deliver to the trustee an officer’s certificate stating that all conditions precedent set forth in the items set forth immediately above and the item set forth immediately below, as applicable, have been complied with;
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in the case of subordinated debt securities, at the time of such deposit, no default in the payment of all or a portion of principal of (or premium, if any) or interest on any of our senior debt shall have occurred and be continuing, no event of default shall have resulted in the acceleration of any of our senior debt and no other event of default with respect to any of our senior debt shall have occurred and be continuing permitting after notice or the lapse of time, or both, the acceleration thereof: and
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we have delivered to the trustee an opinion of counsel to the effect that all conditions precedent set forth in first, third or fourth item above have been complied with.
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Covenant Defeasance
. The
indentures provide that, upon our exercise of our option (if any) to have the covenant defeasance provisions applied to any debt
securities, we may omit to comply with certain restrictive covenants (but not to conversion, if applicable), including those that
may be described in the applicable prospectus supplement, the occurrence of certain events of default, which are described above
in the fifth item listed under “Events of Default” above and any that may be described in the applicable prospectus
supplement, will not be deemed to either be or result in an event of default and, if such debt securities are subordinated debt
securities, the provisions of the subordinated indenture relating to subordination will cease to be effective, in each case with
respect to such debt securities. In order to exercise such option, we must deposit, in trust for the benefit of the holders of
such debt securities, money or United States government obligations, or both, which, through the payment of principal and interest
in respect thereof in accordance with their terms, will provide money in an amount sufficient to pay the principal of and any premium
and interest on such debt securities on the respective stated maturities in accordance with the terms of the applicable indenture
and such debt securities. Such covenant defeasance may occur only if we have delivered to the applicable trustee an opinion of
counsel that in effect says that holders of such debt securities will not recognize gain or loss for federal income tax purposes
as a result of such deposit and covenant defeasance and will be subject to federal income tax on the same amount, in the same manner
and at the same times as would have been the case if such deposit and covenant defeasance were not to occur, and the requirements
set forth in the second, third, fourth, fifth, sixth and seventh items above are satisfied. If we exercise this option with respect
to any debt securities and such debt securities were declared due and payable because of the occurrence of any event of default,
the amount of money and United States government obligations so deposited in trust would be sufficient to pay amounts due on such
debt securities at the time of their respective stated maturities but may not be sufficient to pay amounts due on such debt securities
upon any acceleration resulting from such event of default. In such case, we would remain liable for such payments.
Notices
We will mail notices to
holders of debt securities at the addresses that appear in the security register.
Title
We may treat the person
in whose name a debt security is registered as the absolute owner, whether or not such debt security may be overdue, for the purpose
of making payment and for all other purposes.
Information Concerning
the Indenture Trustee
The indenture trustee undertakes
to perform only those duties as are specifically set forth in the applicable indenture. The indenture trustee must use the same
degree of care as a prudent person would exercise or use in the conduct of his or her own affairs. The indenture trustee shall
be under no obligation to exercise any of the rights or powers vested in it by an indenture at the request or direction of any
of the applicable holders pursuant to such indenture unless such holders shall have offered to the indenture trustee security or
indemnity satisfactory to the trustee against the costs, expenses and liabilities which might be incurred by it in compliance with
such request or direction.
Payment and Paying Agents
Unless otherwise indicated
in the applicable prospectus supplement, payment of interest on a debt security on any interest payment date will be made to the
person in whose name such debt security (or one or more predecessor securities) is registered at the close of business on the regular
record date for such interest.
Unless otherwise indicated
in the applicable prospectus supplement, principal of and any premium and interest on the debt securities of a particular series
will be payable at the office of such paying agent or paying agents as we may designate for such purpose from time to time, except
that at our option payment of any interest on debt securities in certificated loan may be made by check mailed to the address of
the person entitled thereto as such address appears in the security register. Unless otherwise indicated in the applicable prospectus
supplement, the corporate trust office of the trustee under the senior indenture in The City of New York will be designated as
sole paying agent for payments with respect to senior debt securities of each series, and the corporate trust office of the trustee
under the subordinated indenture in The City of New York will be designated as the sole paying agent for payment with respect to
subordinated debt securities of each series. Any other paying agents initially designated by us for the debt securities of a particular
series will be named in the applicable prospectus supplement. We may at any time designate additional paying agents or rescind
the designation of any paying agent or approve a change in the office through which any paying agent acts, except that we will
be required to maintain a paying agent in each place of payment for the debt securities of a particular series.
All money paid by us to
a paying agent for the payment of the principal of or any premium or interest on any debt security which remain unclaimed at the
end of two years after such principal, premium or interest has become due and payable will be repaid to us, and the holder of such
debt security thereafter may look only to us for payment.
Governing Law
The indentures and the
debt securities will be governed by and construed in accordance with the laws of the state of New York.
DESCRIPTION OF CAPITAL STOCK
Authorized and Outstanding
Capital Stock
Our authorized capital stock
consists of 300,000,000 shares of common stock, $0.001 par value per share, and 10,000,000 shares of preferred stock, $0.001 par
value per share, of which 1,684,375 shares are designated as Series A Preferred Stock and 1,580,790 shares are designated
as Series B Preferred Stock. As of May 10, 2012, there were 86,801,993 shares of common stock, no shares of Series
A Preferred Stock and 926,942 shares of Series B Preferred Stock issued and outstanding. On June 8, 2011, we effected
a one-for-seven reverse split of our common stock. All share information contained in this prospectus reflects the effect
of this reverse stock split. The following description of our capital stock does not purport to be complete and should
be reviewed in conjunction with our certificate of incorporation, including our Certificate of Designations, Powers, Preferences
and Rights of the Series A Preferred Stock, or Series A Certificate of Designations, our Certificate of Designations, Powers,
Preferences and Rights of the Series B Preferred Stock, or Series B Certificate of Designations, and our bylaws.
Common Stock
All outstanding shares of
common stock are fully paid and nonassessable. The following summarizes the rights of holders of our common stock:
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each holder of common stock is entitled to one vote per share on all matters to be voted upon generally by the stockholders;
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subject to preferences that may apply to shares of preferred stock outstanding, the holders of common stock are entitled to receive lawful dividends as may be declared by our board of directors, or Board;
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upon our liquidation, dissolution or winding up, the holders of shares of common stock are entitled to receive a pro rata portion of all our assets remaining for distribution after satisfaction of all our liabilities and the payment of any liquidation preference of any outstanding preferred stock;
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there are no redemption or sinking fund provisions applicable to our common stock; and
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there are no preemptive or conversion rights applicable to our common stock.
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Preferred Stock
Our Board 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 and need only be approved by holders, if any, of our Series A Preferred
Stock and Series B Preferred Stock if, as described below, the shares of preferred stock to be issued have preferences that are
senior to or on parity with those of our Series A Preferred Stock and Series B Preferred Stock.
The rights of the holders
of our common stock, Series A Preferred Stock and Series B Preferred Stock will be subject to, and may be adversely affected by,
the rights of the holders of any preferred stock that may be issued in the future. 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 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. The following is a summary of the terms of the Series A Preferred
Stock and the Series B Preferred Stock.
Series B Preferred Stock
As of May 10, 2012, 926,942
shares of Series B Preferred Stock were issued and outstanding and an aggregate of 1,419,210 shares of Series B Preferred Stock
had been converted into shares of our common stock. The converted shares of Series B Preferred Stock have been returned
to undesignated preferred stock. A balance of 653,848 shares of Series B Preferred Stock remain authorized for issuance.
Rank and Liquidation
Preference
Shares of Series B Preferred
Stock rank prior to our common stock as to distribution of assets upon liquidation events, which include a liquidation, dissolution
or winding up of Pacific Ethanol, whether voluntary or involuntary. The liquidation preference of each share of Series B Preferred
Stock is equal to $19.50, or Series B Issue Price, plus any accrued but unpaid dividends on the Series B Preferred Stock. If assets
remain after the amounts are distributed to the holders of Series B Preferred Stock, the assets shall be distributed pro rata,
on an as-converted to common stock basis, to the holders of our common stock and Series B Preferred Stock. The written consent
of a majority of the outstanding shares of Series B Preferred Stock is required before we can authorize the issuance of any class
or series of capital stock that ranks senior to or on parity with shares of Series B Preferred Stock.
Dividend Rights
As long as shares of Series
B Preferred Stock remain outstanding, each holder of shares of Series B Preferred Stock are entitled to receive, and shall be paid
quarterly in arrears, in cash out of funds legally available therefor, cumulative dividends, in an amount equal to 7.0% of the
Series B Issue Price per share per annum with respect to each share of Series B Preferred Stock. The dividends may,
at our option, be paid in shares of Series B Preferred Stock valued at the Series B Issue Price. In the event we declare,
order, pay or make a dividend or other distribution on our common stock, other than a dividend or distribution made in common stock,
the holders of the Series B Preferred Stock shall be entitled to receive with respect to each share of Series B Preferred Stock
held, any dividend or distribution that would be received by a holder of the number of shares of our common stock into which the
Series B Preferred Stock is convertible on the record date for the dividend or distribution.
The Series B Preferred Stock
ranks pari passu with respect to dividends and liquidation rights with the Series A Preferred Stock and pari passu with respect
to any class or series of capital stock specifically ranking on parity with the Series B Preferred Stock.
Optional Conversion
Rights
Each share of Series B Preferred
Stock is convertible at the option of the holder into shares of our common stock at any time. Each share of Series B
Preferred Stock is convertible into the number of shares of common stock as calculated by multiplying the number of shares of Series
B Preferred Stock to be converted by the Series B Issue Price, and dividing the result thereof by the Conversion Price. The
“Conversion Price” was initially $45.50 per share of Series B Preferred Stock, subject to adjustment; therefore, each
share of Series B Preferred Stock was initially convertible into 0.43 shares of common stock, which number is equal to the quotient
of the Series B Issue Price of $19.50 divided by the initial Conversion Price of $45.50 per share of Series B Preferred Stock. Accrued
and unpaid dividends are to be paid in cash upon any conversion.
Mandatory Conversion
Rights
In the event of a Transaction
which will result in an internal rate of return to holders of Series B Preferred Stock of 25% or more, each share of Series B Preferred
Stock shall, concurrently with the closing of the Transaction, be converted into shares of common stock. A “Transaction”
is defined as a sale, lease, conveyance or disposition of all or substantially all of our capital stock or assets or a merger,
consolidation, share exchange, reorganization or other transaction or series of related transactions (whether involving us or a
subsidiary) in which the stockholders immediately prior to the transaction do not retain a majority of the voting power in the
surviving entity. Any mandatory conversion will be made into the number of shares of common stock determined on the
same basis as the optional conversion rights above. Accrued and unpaid dividends are to be paid in cash upon any conversion.
No shares of Series B Preferred
Stock will be converted into common stock on a mandatory basis unless at the time of the proposed conversion we have on file with
the Securities and Exchange Commission an effective registration statement with respect to the shares of common stock issued or
issuable to the holders on conversion of the Series B Preferred Stock then issued or issuable to the holders and the shares of
common stock are eligible for trading on The NASDAQ Stock Market (or approved by and listed on a stock exchange approved by the
holders of 66 2/3% of the then outstanding shares of Series B Preferred Stock).
Conversion Price Adjustments
The Conversion Price is
subject to customary adjustment for stock splits, stock combinations, stock dividends, mergers, consolidations, reorganizations,
share exchanges, reclassifications, distributions of assets and issuances of convertible securities, and the like. The Conversion
Price is also subject to downward adjustments if we issue shares of common stock or securities convertible into or exercisable
for shares of common stock, other than specified excluded securities, at per share prices less than the then effective Conversion
Price. In this event, the Conversion Price shall be reduced to the price determined by dividing (i) an amount equal to the sum
of (a) the number of shares of common stock outstanding immediately prior to the issue or sale multiplied by the then existing
Conversion Price, and (b) the consideration, if any, received by us upon such issue or sale, by (ii) the total number of shares
of common stock outstanding immediately after the issue or sale. For purposes of determining the number of shares of
common stock outstanding as provided in clauses (i) and (ii) above, the number of shares of common stock issuable upon conversion
of all outstanding shares of Series B Preferred Stock, and the exercise of all outstanding securities convertible into or exercisable
for shares of common stock, will be deemed to be outstanding.
The Conversion Price will
not be adjusted in the case of the issuance or sale of the following: (i) securities issued to our employees, officers or directors
or options to purchase common stock granted by us to our employees, officers or directors under any option plan, agreement or other
arrangement duly adopted by us and the grant of which is approved by the compensation committee of our Board; (ii) the Series B
Preferred Stock and any common stock issued upon conversion of the Series B Preferred Stock; (iii) securities issued on the conversion
of any convertible securities, in each case, outstanding on the date of the filing of the Series B Certificate of Designations;
and (iv) securities issued in connection with a stock split, stock dividend, combination, reorganization, recapitalization or other
similar event for which adjustment is made in accordance with the foregoing.
Voting Rights and
Protective Provisions
The Series B Preferred Stock
votes together with all other classes and series of our voting stock as a single class on all actions to be taken by our stockholders. Each
share of Series B Preferred Stock entitles the holder thereof to the number of votes equal to the number of shares of common stock
into which each share of Series B Preferred Stock is convertible on all matters to be voted on by our stockholders, however, the
number of votes for each share of Series B Preferred Stock may not exceed the number of shares of common stock into which each
share of Series B Preferred Stock would be convertible if the applicable Conversion Price were $45.50 (subject to appropriate adjustment
for stock splits, stock dividends, combinations and other similar recapitalizations affecting the shares).
We are not permitted, without
first obtaining the written consent of the holders of at least a majority of the then outstanding shares of Series B Preferred
Stock voting as a separate class, to:
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increase or decrease the total number of authorized shares of Series B Preferred Stock or the authorized shares of our common stock reserved for issuance upon conversion of the Series B Preferred Stock (except as otherwise required by our certificate of incorporation or the Series B Certificate of Designations);
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increase or decrease the number of authorized shares of preferred stock or common stock (except as otherwise required by our certificate of incorporation or the Series B Certificate of Designations);
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alter, amend, repeal, substitute or waive any provision of our certificate of incorporation or our bylaws, so as to affect adversely the voting powers, preferences or other rights, including the liquidation preferences, dividend rights, conversion rights, redemption rights or any reduction in the stated value of the Series B Preferred Stock, whether by merger, consolidation or otherwise;
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authorize, create, issue or sell any securities senior to or on parity with the Series B Preferred Stock or securities that are convertible into securities senior to or on parity the Series B Preferred Stock with respect to voting, dividend, liquidation or redemption rights, including subordinated debt;
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authorize, create, issue or sell any securities junior to the Series B Preferred Stock other than common stock or securities that are convertible into securities junior to Series B Preferred Stock other than common stock with respect to voting, dividend, liquidation or redemption rights, including subordinated debt;
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authorize, create, issue or sell any additional shares of Series B Preferred Stock other than the Series B Preferred Stock initially authorized, created, issued and sold, Series B Preferred Stock issued as payment of dividends and Series B Preferred Stock issued in replacement or exchange therefore;
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engage in a Transaction that would result in an internal rate of return to holders of Series B Preferred Stock of less than 25%;
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declare or pay any dividends or distributions on our capital stock in a cumulative amount in excess of the dividends and distributions paid on the Series B Preferred Stock in accordance with the Series B Certificate of Designations;
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authorize or effect the voluntary liquidation, dissolution, recapitalization, reorganization or winding up of our business; or
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purchase, redeem or otherwise acquire any of our capital stock other than Series B Preferred Stock, or any warrants or other rights to subscribe for or to purchase, or any options for the purchase of, our capital stock or securities convertible into or exchangeable for our capital stock.
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Reservation of Shares
We initially were required
to reserve 3,000,000 shares of common stock for issuance upon conversion of shares of Series B Preferred Stock and are required
to maintain a sufficient number of reserved shares of common stock to allow for the conversion of all shares of Series B Preferred
Stock.
Series A Preferred Stock
As of May 10, 2012, no shares
of Series A Preferred Stock were issued and outstanding and an aggregate of 5,315,625 shares of Series A Preferred Stock had been
converted into shares of our common stock and returned to undesignated preferred stock. A balance of 1,684,375 shares
of Series A Preferred Stock remain authorized for issuance. The rights and preferences of the Series A Preferred Stock
are substantially the same as the Series B Preferred Stock, except as follows:
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the Series A Issue Price, on which the Series A Preferred Stock liquidation preference is based, is $16.00 per share;
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dividends accrue and are payable at a rate per annum of 5.0% of the Series A Issue Price per share;
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each share of Series A Preferred Stock is convertible at a rate equal to the Series A Issue Price divided by an initial Conversion Price of $56.00 per share;
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holders of the Series A Preferred Stock have a number of votes equal to the number of shares of common stock into which each share of Series A Preferred Stock is convertible on all matters to be voted on by our stockholders, voting together as a single class; provided, however, that the number of votes for each share of Series A Preferred Stock shall not exceed the number of shares of common stock into which each share of Series A Preferred Stock would be convertible if the applicable Conversion Price were $62.93 (subject to appropriate adjustment for stock splits, stock dividends, combinations and other similar recapitalizations affecting the shares); and
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we are not permitted, without first obtaining the written consent of the holders of at least a majority of the then outstanding shares of Series A Preferred Stock voting as a separate class, to:
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change the number of members of our Board to be more than nine members or less than seven members;
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effect any material change in our industry focus or that of our subsidiaries, considered on a consolidated basis;
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authorize or engage in, or permit any subsidiary to authorize or engage in, any transaction or series of transactions with one of our or our subsidiaries’ current or former officers, directors or members with value in excess of $100,000, excluding compensation or the grant of options approved by our Board; or
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authorize or engage in, or permit any subsidiary to authorize or engage in, any transaction with any entity or person that is affiliated with any of our or our subsidiaries’ current or former directors, officers or members, excluding any director nominated by the initial holder of the Series B Preferred Stock.
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Preemptive Rights
Holders of our Series A
Preferred Stock have preemptive rights to purchase a pro rata portion of all capital stock or securities convertible into capital
stock that we issue, sell or exchange, or agree to issue, sell or exchange, or reserve or set aside for issuance, sale or exchange. We
must deliver each holder of our Series A Preferred Stock a written notice of any proposed or intended issuance, sale or exchange
of capital stock or securities convertible into capital stock which must include a description of the securities and the price
and other terms upon which they are to be issued, sold or exchanged together with the identity of the persons or entities (if known)
to which or with which the securities are to be issued, sold or exchanged, and an offer to issue and sell to or exchange with the
holder of the Series A Preferred Stock the holder’s pro rata portion of the securities, and any additional amount of the
securities should the other holders of Series A Preferred Stock subscribe for less than the full amounts for which they are entitled
to subscribe. In the case of a public offering of our common stock for a purchase price of at least $12.00 per share and a total
gross offering price of at least $50 million, the preemptive rights of the holders of the Series A Preferred Stock shall be limited
to 50% of the securities. Holders of our Series A Preferred Stock have a 30 day period during which to accept the offer. We
will have 90 days from the expiration of this 30 day period to issue, sell or exchange all or any part of the securities as to
which the offer has not been accepted by the holders of the Series A Preferred Stock, but only as to the offerees or purchasers
described in the offer and only upon the terms and conditions that are not more favorable, in the aggregate, to the offerees or
purchasers or less favorable to us than those contained in the offer.
The preemptive rights of
the holders of the Series A Preferred Stock shall not apply to any of the following securities: (i) securities issued to our employees,
officers or directors or options to purchase common stock granted by us to our employees, officers or directors under any option
plan, agreement or other arrangement duly adopted by us and the grant of which is approved by the compensation committee of our
Board; (ii) the Series A Preferred Stock and any common stock issued upon conversion of the Series A Preferred Stock; (iii) securities
issued on the conversion of any convertible securities, in each case, outstanding on the date of the filing of the Series A Certificate
of Designations; (iv) securities issued in connection with a stock split, stock dividend, combination, reorganization, recapitalization
or other similar event for which adjustment is made in accordance with the Series A Certificate of Designations; and (v) the issuance
of our securities issued for consideration other than cash as a result of a merger, consolidation, acquisition or similar business
combination by us approved by our Board.
Anti-Takeover Effects
of Delaware Law and Our Certificate of Incorporation and Bylaws
A number of provisions of
Delaware law, our certificate of incorporation and our bylaws contain provisions that could have the effect of delaying, deferring
and discouraging another party from acquiring control of us. These provisions, which are summarized below, are expected
to discourage coercive takeover practices and inadequate takeover bids. These provisions are also designed to encourage
persons seeking to acquire control of us to first negotiate with our board of directors. We believe that the benefits
of increased protection of our potential ability to negotiate with an unfriendly or unsolicited acquiror outweigh the disadvantages
of discouraging a proposal to acquire us because negotiation of these proposals could result in an improvement of their terms.
Undesignated Preferred
Stock
The ability to authorize
undesignated preferred stock makes it possible for our Board to issue preferred stock with voting or other rights or preferences
that could impede the success of any attempt to acquire us. These and other provisions may have the effect of deferring
hostile takeovers or delaying changes in control or management of Pacific Ethanol.
Delaware Anti-Takeover
Statute
We are subject to the provisions
of Section 203 of the Delaware General Corporation Law, or DGCL, regulating corporate takeovers. In general, Section
203 prohibits a publicly-held Delaware corporation from engaging, under specified circumstances, in a business combination with
an interested stockholder for a period of three years following the date the person became an interested stockholder unless:
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prior to the date of the transaction, the board of directors of the corporation approved either the business combination or the transaction which resulted in the stockholder becoming an interested stockholder;
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upon consummation of the transaction that resulted in the stockholder becoming an interested stockholder, the stockholder owned at least 85% of the voting stock of the corporation outstanding at the time the transaction commenced, excluding for purposes of determining the number of shares of voting stock outstanding (but not the outstanding voting stock owned by the stockholder) (1) shares owned by persons who are directors and also officers and (2) shares owned by employee stock plans in which employee participants do not have the right to determine confidentially whether shares held subject to the plan will be tendered in a tender or exchange offer; or
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on or subsequent to the date of the transaction, the business combination is approved by the board and authorized at an annual or special meeting of stockholders, and not by written consent, by the affirmative vote of at least 66⅔% of the outstanding voting stock that is not owned by the interested stockholder.
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Generally, a business combination
includes a merger, asset or stock sale, or other transaction resulting in a financial benefit to the interested stockholder. An
interested stockholder is a person who, together with affiliates and associates, owns or, within three years prior to the determination
of interested stockholder status, did own 15% or more of a corporation’s outstanding voting securities. We expect
the existence of its provision to have an anti-takeover effect with respect to transactions our Board does not approve in advance. We
also anticipate that Section 203 of the DGCL may also discourage attempts that might result in a premium over the market price
for the shares of common stock held by stockholders.
The provisions of Delaware
law, our certificate of incorporation and our bylaws could have the effect of discouraging others from attempting hostile takeovers
and, as a consequence, they may also inhibit temporary fluctuations in the market price of our common stock that often result from
actual or rumored hostile takeover attempts. These provisions may also have the effect of preventing changes in our
management. It is possible that these provisions could make it more difficult to accomplish transactions that stockholders
may otherwise deem to be in their best interests.
DESCRIPTION OF PREFERRED
STOCK
We may issue up to 6,734,835
shares of preferred stock, par value $0.001 per share, from time to time in one or more classes or series, with the exact terms
of each series or class established by our Board. Without seeking stockholder approval, our Board may issue preferred stock with
voting and other rights that are greater than the rights of our common stock and could adversely affect the voting power of the
holders of our common stock.
The rights, preferences,
privileges and restrictions of the preferred stock of each series or class will be determined by our Board and set forth in a certificate
of designations relating to such series or class that will amend our Certificate of Incorporation. We will include each certificate
of designations as an exhibit to the registration statement that includes this prospectus, or as an exhibit to a filing with the
Securities and Exchange Commission that is incorporated by reference into this prospectus. The description of preferred stock in
any prospectus supplement will not necessarily describe all of the terms of the preferred stock in detail. You should read the
applicable certificate of designations for a complete description of all of the terms.
This section describes the
general terms of the preferred stock that we may offer using this prospectus. Further terms of the preferred stock will be stated
in the applicable prospectus supplement. The following description and any description of the preferred stock in a prospectus supplement
may not be complete and is subject to and qualified in its entirety by reference to the terms of the certificate of designations.
Terms
You should refer to the
applicable prospectus supplement relating to the offering of any series of preferred stock for specific terms of the shares, including
the following terms:
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the maximum number of shares in the series or class and the distinctive designation;
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number of shares offered and initial offering price;
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the terms on which dividends, if any, will be paid;
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the terms of any preemptive rights;
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the terms on which the shares may be redeemed, if at all;
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the liquidation preference, if any;
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the terms of any retirement or sinking fund for the repurchase or redemption of the shares of the series;
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the terms and conditions, if any, on which the shares of the series shall be convertible into, or exchangeable for, shares of any other class or classes of capital stock, including the conversion price, rate or other manner of calculation, conversion period and anti-dilution provisions, if applicable;
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terms and conditions upon which shares will be exchangeable into debt securities or any other securities, including the exchange price, rate or other manner of calculation, exchange period and any anti-dilution provisions, if applicable;
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the relative ranking and preference as to dividend rights and rights upon liquidation, dissolution or the winding up of our affairs, including liquidation preference amount;
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any limitation on issuance of any series of preferred stock ranking senior to or on a parity with that series of preferred stock as to dividend rights and rights upon liquidation, dissolution or the winding up of our affairs;
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the voting rights, if any, on the shares of the series;
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any or all other preferences and relative, participating, operational or other special rights or qualifications, limitations or restrictions of the shares; and
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any material United States federal income tax consequences.
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The issuance of preferred stock
may delay, deter or prevent a change in control.
Ranking
Unless we provide otherwise
in an applicable prospectus supplement, the preferred stock offered through that supplement will, with respect to dividend rights
and rights upon our liquidation, dissolution or winding up, rank:
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senior to all classes or series of our common stock, and to all other equity securities ranking junior to the offered preferred stock;
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on a parity with all of our equity securities ranking on a parity with the offered preferred stock; and
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junior to all of our equity securities ranking senior to the offered preferred stock.
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As used herein, the term
“equity securities” does not include convertible debt securities.
Voting Rights
Unless otherwise indicated
in the applicable prospectus supplement, holders of our preferred stock will not have any voting rights, except as may be required
by applicable law.
Dividends
Subject to any preferential
rights of any outstanding shares or series of shares, our preferred stockholders are entitled to receive dividends, if any, when
and as authorized by our Board, out of legally available funds, as specified in the applicable prospectus supplement.
Redemption
If we provide for a redemption
right in a prospectus supplement, the preferred stock offered through that supplement will be subject to mandatory redemption or
redemption at our option, in whole or in part, in each case upon the terms, at the times and at the redemption prices set forth
in that prospectus supplement.
Liquidation Preference
In the event of our voluntary
or involuntary dissolution, liquidation, or winding up, the holders of any series of our preferred stock will be entitled to receive,
after distributions to holders of any series or class of our capital shares ranking senior, an amount equal to the stated or liquidation
value of the series plus, if applicable, an amount equal to accrued and unpaid dividends. If the assets and funds to be distributed
among the holders of our preferred stock will be insufficient to permit full payment to the holders, then the holders of our preferred
stock will share ratably in any distribution of our assets in proportion to the amounts that they otherwise would receive on their
our preferred stock if the shares were paid in full.
Conversion Rights
The terms and conditions,
if any, upon which any series of preferred stock is convertible into common stock or other securities will be set forth in the
prospectus supplement relating to the offering of those preferred stock. These terms typically will include number of shares of
common stock or other securities into which the preferred stock is convertible; conversion price (or manner of calculation); conversion
period; provisions as to whether conversion will be at the option of the holders of the preferred stock or at our option; events,
if any, requiring an adjustment of the conversion price; and provisions affecting conversion in the event of the redemption of
that series of preferred stock.
Transfer Agent and Registrar
We will identify in a prospectus
supplement the transfer agent and registrar for any series of preferred stock offered by this prospectus.
DESCRIPTION OF WARRANTS
The complete terms of the
warrants will be contained in the applicable warrant agreement and warrant. These documents will be included or incorporated by
reference as exhibits to the registration statement of which this prospectus is a part. You should read the warrant and warrant
agreement. You should also read the prospectus supplement, which will contain additional information and which may update or change
some of the information below.
This section describes the
general terms of the warrants to purchase common stock, preferred stock and/or debt securities that we may offer using this prospectus.
Further terms of the warrants will be stated in the applicable prospectus supplement. The following description and any description
of the rights in a prospectus supplement may not be complete and is subject to and qualified in its entirety by reference to the
terms of the warrant and warrant agreement.
General
We may issue additional
warrants for the purchase of common stock, preferred stock and/or debt securities in one or more series. If we offer warrants,
we will describe the terms in a prospectus supplement. Warrants may be offered independently, together with other securities offered
by any prospectus supplement, or through a dividend or other distribution to stockholders and may be attached to or separate from
other securities. Warrants may be issued under a written warrant agreement to be entered into between us and the holder or beneficial
owner, or under a written warrant agreement with a warrant agent specified in a prospectus supplement. A warrant agent would act
solely as our agent in connection with the warrants of a particular series and would not assume any obligation or relationship
of agency or trust for or with any holders or beneficial owners of those warrants.
The following are some of
the terms relating to a series of warrants that could be described in a prospectus supplement:
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aggregate number of warrants;
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price or prices at which the warrants will be issued;
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designation, number, aggregate principal amount, denominations and terms of the securities that may be purchased on exercise of the warrants;
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date, if any, on and after which the warrants and the debt securities offered with the warrants, if any, will be separately transferable;
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purchase price for each security purchasable on exercise of the warrants;
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the terms for changes to or adjustments in the exercise price, if any;
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dates on which the right to purchase certain securities upon exercise of the warrants will begin and end;
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minimum or maximum number of securities that may be purchased at any one time upon exercise of the warrants;
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anti-dilution provisions or other adjustments to the exercise price of the warrants;
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terms of any right that we may have to redeem the warrants;
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effect of any merger, consolidation, sale or other transfer of our business on the warrants and the applicable warrant agreement;
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name and address of the warrant agent, if any;
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information with respect to book-entry procedures;
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any material United States federal income tax considerations; and
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other material terms, including terms relating to transferability, exchange, exercise or amendments of the warrants.
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Until any warrants to purchase
our securities are exercised, holders of the warrants will not have any rights of holders of the underlying securities.
Outstanding Warrants
As of May 10, 2012, we had
outstanding warrants to purchase 6,139,674 shares of our common stock at exercise prices ranging from $0.45 to $49.70 per share. These
outstanding warrants consist of warrants to purchase an aggregate of 252,101 shares of common stock at an exercise price of $0.45
per share expiring in 2017, warrants to purchase an aggregate of 4,956,250 shares of common stock at an exercise price of $1.50
per share expiring in 2016, warrants to purchase an aggregate of 502,750 shares of common stock at an exercise price of $49.00
per share expiring in 2018, and warrants to purchase an aggregate of 428,573 shares of common stock at an exercise price of $49.70
per share expiring in 2013.
DESCRIPTION OF UNITS
The complete terms of the
units will be contained in the unit agreement and any document applicable to the securities comprising the units. These documents
will be included or incorporated by reference as exhibits to the registration statement of which this prospectus is a part. You
should read the unit agreement and any related documents. You also should read the prospectus supplement, which will contain additional
information and which may update or change some of the information below.
This section describes the
general terms of the units that we may offer using this prospectus. Further terms of the units will be stated in the applicable
prospectus supplement. The following description and any description of the units in a prospectus supplement may not be complete
and is subject to and qualified in its entirety by reference to the terms of any agreement relating to the units and the related
documents applicable to the securities constituting the units.
We may issue units, in one
or more series, consisting of any combination of one or more of the other securities described in this prospectus. If we offer
units, we will describe the terms in a prospectus supplement. Units may be issued under a written unit agreement to be entered
into between us and the holder or beneficial owner, or we could issue units under a written unit agreement with a unit agent specified
in a prospectus supplement. A unit agent would act solely as our agent in connection with the units of a particular series and
would not assume any obligation or relationship of agency or trust for or with any holders or beneficial owners of those units.
Each unit will be issued
so that the holder of the unit is also the holder of each security included in the unit. Thus, the holder of a unit will have the
rights and obligations of a holder of each included security.
The following are some of
the unit terms that could be described in a prospectus supplement:
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aggregate number of units;
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price or prices at which the units will be issued;
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designation and terms of the units and of the securities comprising the units, including whether and under what circumstances those securities may be held or transferred separately;
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effect of any merger, consolidation, sale or other transfer of our business on the units and the applicable unit agreement;
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name and address of the unit agent;
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information with respect to book-entry procedures;
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any material United States federal income tax considerations; and
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other material terms, including terms relating to transferability, exchange, exercise or amendments of the units.
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The provisions described
in this section, as well as those described under “Description of Capital Stock,” “Description of Preferred Stock,”
“Description of Debt Securities,” and “Description of Warrants,” will apply to each unit and to any common
stock, preferred stock, debt security or warrant included in each unit, respectively.
Unless otherwise provided
in the applicable prospectus supplement, the unit agreements will be governed by the laws of the State of New York. The unit agreement
under which a unit is issued may provide that the securities included in the unit may not be held or transferred separately, at
any time or at any time before a specified date. We will file as an exhibit to a filing with the Securities and Exchange Commission
that is incorporated by reference into this prospectus the forms of the unit agreements containing the terms of the units being
offered. The description of units in any prospectus supplement will not necessarily describe all of the terms of the units in detail.
You should read the applicable unit agreements for a complete description of all of the terms.
GLOBAL SECURITIES
Unless otherwise indicated
in the applicable prospectus supplement, securities other than common stock will be issued in the form of one or more global certificates,
or “global securities,” registered in the name of a depositary or its nominee. Unless otherwise indicated in the applicable
prospectus supplement, the depositary will be The Depository Trust Company, commonly referred to as DTC. We expect that DTC’s
nominee will be Cede & Co. Accordingly, we expect Cede & Co. to be the initial registered holder of all securities that
are issued in global form. No person that acquires a beneficial interest in those securities will be entitled to receive a certificate
representing that person’s interest in the securities except as described herein or in the applicable prospectus supplement.
Unless and until definitive securities are issued under the limited circumstances described below, all references to actions by
holders of securities issued in global form will refer to actions taken by DTC upon instructions from its participants, and all
references to payments and notices to holders will refer to payments and notices to DTC or Cede & Co., as the registered holder
of these securities.
DTC is a limited-purpose
trust company organized under the New York Banking Law, a “banking organization” within the meaning of the New York
Banking Law, a member of the Federal Reserve System, a “clearing corporation” within the meaning of the New York Uniform
Commercial Code, and a “clearing agency” registered pursuant to the provisions of Section 17A of the Exchange Act.
DTC holds securities that DTC participants deposit with DTC. DTC also facilitates the settlement among DTC participants of securities
transactions, such as transfers and pledges, in deposited securities through electronic computerized book-entry changes in DTC
participants’ accounts, thereby eliminating the need for physical movement of certificates. DTC participants include securities
brokers and dealers, banks, trust companies and clearing corporations, and may include other organizations. DTC is a wholly owned
subsidiary of the Depository Trust & Clearing Company, or DTCC. DTCC, in turn, is owned by a number of DTC’s participants
and subsidiaries of DTCC as well as by other financial companies, including the New York Stock Exchange, Inc. and the Financial
Industry Regulatory Authority, Inc. Indirect access to the DTC system also is available to others such as banks, brokers, dealers
and trust companies that clear through or maintain a custodial relationship with a participant, either directly or indirectly.
The rules applicable to DTC and DTC participants are on file with the Securities and Exchange Commission.
Persons that are not participants
or indirect participants but desire to purchase, sell or otherwise transfer ownership of, or other interests in, securities may
do so only through participants and indirect participants. Under a book-entry format, holders may experience some delay in their
receipt of payments, as such payments will be forwarded by our designated agent to Cede & Co., as nominee for DTC. DTC will
forward such payments to its participants, who will then forward them to indirect participants or holders. Holders will not be
recognized by the relevant registrar, transfer agent, trustee or warrant agent as registered holders of the securities entitled
to the benefits of our Certificate of Incorporation or the applicable indenture, warrant agreement, trust agreement or guarantee.
Beneficial owners that are not participants will be permitted to exercise their rights only indirectly through and according to
the procedures of participants and, if applicable, indirect participants.
Under the rules, regulations
and procedures creating and affecting DTC and its operations as currently in effect, DTC will be required to make book-entry transfers
of securities among participants and to receive and transmit payments to participants. DTC rules require participants and indirect
participants with which beneficial securities owners have accounts to make book-entry transfers and receive and transmit payments
on behalf of their respective account holders.
Because DTC can act only
on behalf of participants, who in turn act only on behalf of participants or indirect participants, and certain banks, trust companies
and other persons approved by it, the ability of a beneficial owner of securities issued in global form to pledge such securities
to persons or entities that do not participate in the DTC system may be limited due to the unavailability of physical certificates
for these securities.
We expect DTC to advise
us that DTC will take any action permitted to be taken by a registered holder of any securities under our Certificate of Incorporation
or the relevant indenture, warrant agreement, trust agreement or guarantee only at the direction of one or more participants to
whose accounts with DTC such securities are credited.
Unless otherwise indicated
in the applicable prospectus supplement, a global security will be exchangeable for the relevant definitive securities registered
in the names of persons other than DTC or its nominee only if:
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DTC notifies us that it is unwilling or unable to continue as depositary for that global security or if DTC ceases to be a clearing agency registered under the Exchange Act when DTC is required to be so registered;
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we execute and deliver to the relevant registrar, transfer agent, trustee and/or warrant agent an order complying with the requirements of the applicable indenture, trust agreement or warrant agreement that the global security will be exchangeable for definitive securities in registered form; or
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there has occurred and is continuing a default in the payment of any amount due in respect of the securities or, in the case of debt securities, an event of default or an event that, with the giving of notice or lapse of time, or both, would constitute an event of default with respect to these debt securities.
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Any global security that
is exchangeable under the preceding sentence will be exchangeable for securities registered in such names as DTC directs.
Upon the occurrence of any
event described in the preceding paragraph, DTC is generally required to notify all participants of the availability of definitive
securities. Upon DTC surrendering the global security representing the securities and delivery of instructions for re-registration,
the registrar, transfer agent, trustee or warrant agent, as the case may be, will reissue the securities as definitive securities,
and then such persons will recognize the holders of such definitive securities as registered holders of securities entitled to
the benefits of our articles or the relevant indenture trust agreement and/or warrant agreement.
Redemption notices will
be sent to Cede & Co. as the registered holder of the global securities. If less than all of a series of securities are being
redeemed, DTC will determine the amount of the interest of each direct participant to be redeemed in accordance with its then current
procedures.
Except as described above,
the global security may not be transferred except as a whole by DTC to a nominee of DTC or by a nominee of DTC to DTC or another
nominee of DTC or to a successor depositary we appoint. Except as described above, DTC may not sell, assign, transfer or otherwise
convey any beneficial interest in a global security evidencing all or part of any securities unless the beneficial interest is
in an amount equal to an authorized denomination for these securities.
The information in this
section concerning DTC and DTC’s book-entry system has been obtained from sources that we believe to be accurate, but we
assume no responsibility for the accuracy thereof. None of us, any indenture trustee, any depositary, any rights agent, any registrar
and transfer agent or any warrant agent, or any agent of any of them, will have any responsibility or liability for any aspect
of DTC’s or any participant’s records relating to, or for payments made on account of, beneficial interests in a global
security, or for maintaining, supervising or reviewing any records relating to such beneficial interests.
Secondary trading in notes
and debentures of corporate issuers is generally settled in clearing-house or next-day funds. In contrast, beneficial interests
in a global security, in some cases, may trade in the DTC’s same-day funds settlement system, in which secondary market trading
activity in those beneficial interests would be required by DTC to settle in immediately available funds. There is no assurance
as to the effect, if any, that settlement in immediately available funds would have on trading activity in such beneficial interests.
Also, settlement for purchases of beneficial interests in a global security upon the original issuance of this security may be
required to be made in immediately available funds.
PLAN OF DISTRIBUTION
We may sell or distribute
the securities included in this prospectus through underwriters, through agents, dealers, in private transactions, at market prices
prevailing at the time of sale, at prices related to the prevailing market prices, or at negotiated prices.
In addition, we may sell
some or all of the securities included in this prospectus through:
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a block trade in which a broker-dealer may resell a portion of the block, as principal, in order to facilitate the transaction;
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purchases by a broker-dealer, as principal, and resale by the broker-dealer for its account; or
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ordinary brokerage transactions and transactions in which a broker solicits purchasers.
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In addition, we may enter
into option or other types of transactions that require us to deliver common shares to a broker-dealer, who will then resell or
transfer the common shares under this prospectus. We may enter into hedging transactions with respect to our securities. For example,
we may:
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enter into transactions involving short sales of the common shares by broker-dealers;
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sell common shares short themselves and deliver the shares to close out short positions;
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enter into option or other types of transactions that require us to deliver common shares to a broker-dealer, who will then resell or transfer the common shares under this prospectus; or
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loan or pledge the common shares to a broker-dealer, who may sell the loaned shares or, in the event of default, sell the pledged shares.
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We may 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, if not identified in this prospectus, will be identified
in the applicable prospectus supplement (or a post-effective amendment). In addition, we may otherwise loan or pledge securities
to a financial institution or other third party that in turn may sell the securities short using this prospectus. Such financial
institution or other third party may transfer its economic short position to investors in our securities or in connection with
a concurrent offering of other securities.
There is currently no market
for any of the securities, other than the shares of common stock listed on The NASDAQ Capital Market. If the securities are traded
after their initial issuance, they may trade at a discount from their initial offering price, depending on prevailing interest
rates, the market for similar securities and other factors. While it is possible that an underwriter could inform us that it intends
to make a market in the securities, such underwriter would not be obligated to do so, and any such market making could he discontinued
at any time without notice. Therefore, we cannot assure you as to whether an active trading market will develop for these other
securities. We have no current plans for listing the debt securities on any securities exchange; any such listing with respect
to any particular debt securities will be described in the applicable prospectus supplement.
Any broker-dealers or other
persons acting on our behalf that participate with us in the distribution of the shares may be deemed to be underwriters and any
commissions received or profit realized by them on the resale of the shares may be deemed to be underwriting discounts and commissions
under the Securities Act. As of the date of this prospectus, we are not a party to any agreement, arrangement or understanding
between any broker or dealer and us with respect to the offer or sale of the securities pursuant to this prospectus.
We may have agreements with
agents, underwriters, dealers and remarketing firms to indemnify them or their controlling persons against certain civil liabilities,
including liabilities under the Securities Act. Agents, underwriters, dealers and remarketing firms, and their affiliates, may
engage in transactions with, or perform services for, us in the ordinary course of business. This includes commercial banking and
investment banking transactions.
At the time that any particular
offering of securities is made, to the extent required by the Securities Act, a prospectus supplement will be distributed setting
forth the terms of the offering, including the aggregate number of securities being offered, the purchase price of the securities,
the initial offering price of the securities, the names of and the respective amounts underwritten by any underwriters, dealers
or agents, nature of the underwriters’ obligation to purchase the securities, any discounts, commissions and other items
constituting compensation from us and any discounts, commissions or concessions allowed or reallowed or paid to dealers. The nature
and amount of discounts and commissions to underwriters for each security and in total will be provided in tabular format.
Pursuant to a requirement
by the Financial Industry Regulatory Authority, or FINRA, the maximum commission or discount to be received by any FINRA member
or independent broker/dealer may not exceed 8% of the gross proceeds received by us for the sale of any securities offered pursuant
to this prospectus and any applicable prospectus supplement.
DISCLOSURE OF COMMISSION
POSITION ON INDEMNIFICATION
FOR SECURITIES ACT LIABILITIES
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 foregoing provisions, 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 Act 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 Act and will be governed
by the final adjudication of such issue.
LEGAL MATTERS
Unless otherwise indicated
in the applicable prospectus supplement, the validity of the securities being offered by this prospectus will be passed upon by
Rutan & Tucker, LLP.
EXPERTS
The financial statements
incorporated by reference in this prospectus and registration statement have been audited by Hein & Associates LLP, an independent
registered public accounting firm, as stated in their report (which report expresses an unqualified opinion) and are incorporated
by reference in reliance upon such report and upon the authority of such firm as experts in accounting and auditing.
WHERE YOU CAN FIND MORE
INFORMATION
We have filed with the Securities
and Exchange Commission a registration statement on Form S-3 under the Securities Act, and the rules and regulations
promulgated under the Securities Act, with respect to the securities offered under this prospectus. This prospectus,
which constitutes a part of the registration statement, does not contain all of the information contained in the registration statement
and the exhibits and schedules to the registration statement. Many of the contracts and documents described in this
prospectus are filed as exhibits to the registration statements and you may review the full text of these contracts and documents
by referring to these exhibits.
For further information
with respect to us and the securities offered under this prospectus, reference is made to the registration statement and its exhibits
and schedules. We file reports, including annual reports on Form 10-K, quarterly reports on Form 10-Q and current reports
on Form 8-K with the Securities and Exchange Commission. The public may read and copy any materials we file with the
Securities and Exchange Commission at the Securities and Exchange Commission’s Public Reference Room at 100 F Street, N.E.,
Washington, DC 20549, on official business days during the hours of 10 a.m. to 3 p.m. The registration statement, including its
exhibits and schedules, may be inspected at the Public Reference Room. The public may obtain information on the operation of the
Public Reference Room by calling the Securities and Exchange Commission at 1-800-SEC-0330.
The Securities and Exchange
Commission maintains an Internet web site that contains reports, proxy and information statements and other information regarding
issuers, including Pacific Ethanol, that file electronically with the Securities and Exchange Commission. The Securities
and Exchange Commission’s Internet website address is
http://www.sec.gov
. Our
Internet website address is
http://www.pacificethanol.net/
.
We do not anticipate that
we will send an annual report to our stockholders until and unless we are required to do so by the rules of the Securities and
Exchange Commission.
All trademarks or trade
names referred to in this prospectus are the property of their respective owners.
INCORPORATION OF CERTAIN
DOCUMENTS BY REFERENCE
The Securities and Exchange
Commission allows us to “incorporate by reference” the information we file with the Securities and Exchange Commission. This
means that we can disclose important information to you by referring you to another filed document. Any information
referred to in this way is considered part of this prospectus from the date we file that document. Any reports filed
by us with the Securities and Exchange Commission after the date of this prospectus and before the date that the offering
of the securities by means of this prospectus is terminated will automatically update and, where applicable, supersede any information
contained in this prospectus or incorporated by reference in this prospectus. Accordingly, we incorporate by reference
the following documents or information filed with the Securities and Exchange Commission:
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Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2012 filed with the Securities and Exchange Commission on May 11, 2012;
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Current Report on Form 8-K filed with the Securities and Exchange Commission on May 10, 2012;
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Current Report on Form 8-K filed with the Securities and Exchange Commission on May 8, 2012;
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Annual Report on Form 10-K/A for the fiscal year ended December 31, 2011, which we filed with the Securities and Exchange Commission on April 13, 2012;
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Annual Report on Form 10-K for the fiscal year ended December 31, 2011, which we filed with the Securities and Exchange Commission on March 8, 2012;
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Current Report on Form 8-K filed with the Securities and Exchange Commission on February 27, 2012;
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Current Report on Form 8-K filed with the Securities and Exchange Commission on January 31, 2012;
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Current Report on Form 8-K filed with the Securities and Exchange Commission on January 5, 2012;
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The description of our capital stock contained in our Current Report on Form 8-K filed with the Securities and Exchange Commission on June 8, 2007; and
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All documents filed by us in accordance with Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act on or after the date of this prospectus and before the termination of an offering under this prospectus, other than documents or information deemed furnished and not filed in accordance with Securities and Exchange Commission rules.
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We will provide a copy of
the documents we incorporate by reference, at no cost, to any person who received this prospectus. To request a copy
of any or all of these documents, you should write or telephone us at: Investor Relations, Pacific Ethanol, Inc., 400
Capitol Mall, Suite 2060, Sacramento, California 95814, (916) 403-2123. In addition, each document incorporated by reference
is readily accessible on our website at
www.pacificethanol.net
.
PACIFIC ETHANOL,
INC.
Shares
Common Stock
$ per share
_________________
PROSPECTUS SUPPLEMENT
_________________
_________________
Joint Book-Running
Managers
Lazard Capital
Markets Cowen
and Company
_________________
Co-Manager
Craig-Hallum Capital Group
_________________
April , 2014
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