Current Report Filing (8-k)
August 13 2020 - 4:29PM
Edgar (US Regulatory)
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date
of Report (Date of earliest event reported): August 13, 2020
PACIFIC
ETHANOL, INC.
(Exact
Name of Registrant as Specified in Charter)
Delaware
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000-21467
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41-2170618
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(State
or Other Jurisdiction
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(Commission
File Number)
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(IRS
Employer
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of
Incorporation)
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Identification
No.)
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400
Capitol Mall, Suite 2060
Sacramento, California
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95814
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(Address
of Principal Executive Offices)
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(Zip
Code)
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Registrant’s
Telephone Number, Including Area Code: (916)
403-2123
(Former
Name or Former Address, if Changed Since Last Report)
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Check
the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant
under any of the following provisions (see General Instruction A.2. below):
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☐
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Written communications pursuant to Rule 425 under the Securities
Act (17 CFR 230.425)
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☐
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Soliciting material pursuant to Rule 14a-12 under the Exchange
Act (17 CFR 240.14a-12)
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☐
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Pre-commencement communications pursuant to Rule 14d-2(b)
under the Exchange Act (17 CFR 240.14d-2(b))
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☐
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Pre-commencement communications pursuant to Rule 13e-4(c)
under the Exchange Act (17 CFR 240.13e-4(c))
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Securities
registered pursuant to Section 12(b) of the Act:
Title
of each class
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Trading
Symbol(s)
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Name
of each exchange on which registered
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Common
Stock, $0.001 par value
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PEIX
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The
Nasdaq Stock Market LLC
(Nasdaq Capital Market)
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Indicate
by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (17 CFR
§230.405) or Rule 12b-2 of the Securities Exchange Act of 1934 (17 CFR §240.12b-2). Emerging growth company ☐
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for
complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
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Item
1.01
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Entry
into a Material Definitive Agreement.
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On
August 13, 2020, Pacific Ethanol, Inc. (the “Company”) entered into an At Market Issuance Sales Agreement (the “Sales
Agreement”) with H.C. Wainwright & Co., LLC (the “Sales Agent”). Pursuant to the Sales Agreement, the Sales
Agent will act as the Company’s sales agent with respect to an offering and sale, at any time and from time to time, of
the Company’s common stock, par value $0.001 per share (the “Shares”). Sales of the Shares, if any, will be
made by any method permitted by law deemed to be an “at the market offering” as defined in Rule 415 under the Securities
Act of 1933, as amended, including without limitation sales made directly on or through The Nasdaq Capital Market.
The
Shares will be sold and issued pursuant to the Company’s Registration Statement on Form S-3 (File No. 333-238939), which
was previously declared effective by the Securities and Exchange Commission, and the related base prospectus and one or more prospectus
supplements.
The
Company or the Sales Agent, under certain circumstances and upon notice to the other, may suspend the offering of the Shares under
the Sales Agreement. The offering of the Shares pursuant to the Sales Agreement will terminate upon the sale of all of the Shares
subject to the Sales Agreement, or sooner if either the Company or the Sales Agent terminate the Sales Agreement.
The Company will pay the
Sales Agent a commission of up to 3.0% of the gross proceeds from any sale of the Shares sold pursuant to the Sales Agreement.
In addition, the Company has agreed to reimburse the Sales Agent for fees and disbursements of its legal counsel in an amount not
to exceed $50,000 and to reimburse the Sales Agent for the documented fees and costs of its legal counsel incurred in connection
with its ongoing diligence and other requirements arising from the transactions contemplated by the Sales Agreement in an amount
not to exceed $2,500 per calendar quarter.
The
Company made certain customary representations, warranties and covenants in the Sales Agreement concerning the Company and its
subsidiaries and the registration statement, prospectus, prospectus supplement and other documents and filings relating to the
offering of the Shares. In addition, the Company has agreed to indemnify the Sales Agent against certain liabilities.
The
foregoing description of the Sales Agreement is qualified in its entirety by reference to that agreement, a copy of which is filed
as Exhibit 10.1 to this Current Report on Form 8-K and is incorporated herein by reference.
This
Current Report on Form 8-K, including the exhibits filed herewith, shall not constitute an offer to sell or the solicitation of
an offer to buy the securities discussed herein, nor shall there be any offer, solicitation or sale of the securities in any state
in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of
such state.
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Item
9.01
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Financial
Statements and Exhibits.
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(#)
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All
of the agreements filed as exhibits to this report contain representations and warranties made by the parties thereto. The assertions
embodied in such representations and warranties are not necessarily assertions of fact, but a mechanism for the parties to allocate
risk. Accordingly, investors should not rely on the representations and warranties as characterizations of the actual state of
facts or for any other purpose at the time they were made or otherwise.
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SIGNATURE
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf
by the undersigned hereunto duly authorized.
Date: August
13, 2020
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PACIFIC
ETHANOL, INC.
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By:
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/S/
CHRISTOPHER W. WRIGHT
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Christopher
W. Wright,
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Vice
President, General Counsel & Secretary
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