AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 23, 2005
REGISTRATION NO. 333-_________
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
PACIFIC ETHANOL, INC.
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(Exact name of registrant as specified in its charter)
DELAWARE 41-2170618
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
3300 UNIVERSITY DRIVE, SUITE 201, CORAL SPRINGS, FLORIDA 33065
(Address of Principal Executive Offices) (Zip Code)
2004 STOCK OPTION PLAN
(Full title of the plan)
BARRY SIEGEL
PACIFIC ETHANOL, INC.
3300 UNIVERSITY DRIVE, SUITE 201,
CORAL SPRINGS, FLORIDA 33065
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(Name and address of agent for service)
(954) 752-6161
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(Telephone number, including area code, of agent for service)
COPY TO:
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Lawrence Muenz, Esq.
Meritz & Muenz LLP
2021 O Street, N.W.
Washington, D.C. 20036
(202) 787-1964
CALCULATION OF REGISTRATION FEE
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PROPOSED
MAXIMUM OFFERING PROPOSED AMOUNT OF
AMOUNT TO BE PRICE PER SHARE MAXIMUM AGGREGATE REGISTRATION
TITLE OF SECURITIES TO BE REGISTERED REGISTERED (1) OFFERING PRICE (1) FEE
------------------------------------------ ---------------- ------------------ -------------------- ----------------
Common Stock, $.001 par value 2,500,000 $9.00 $22,500,000 $2,648.25
shares
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(1) Calculated pursuant to Rules 457(c) and 457(h) on the basis of the average
of the high and low prices per share as reported for such securities on the
Nasdaq SmallCap Market on March 21, 2005.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I, Items 1
and 2, will be sent or given to employees in accordance with Form S-8 and Rule
428(b)(1) of the Securities Act of 1933, as amended (the "Securities Act"). We
will furnish without charge to each employee to whom information is required to
be delivered, upon written or oral request, a copy of each document incorporated
by reference in Item 3 of Part II of this Registration Statement, which
documents are incorporated by reference in the Section 10(a) prospectus, and any
other documents required to be delivered to them under Rule 428(b) of the
Securities Act. Requests should be directed to Pacific Ethanol, Inc., 3300
University Drive, Suite 201, Coral Springs, Florida 33065, Attention: Secretary.
Pacific Ethanol's telephone number is (954) 752-6161.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. Incorporation of Documents by Reference.
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We incorporate the following documents by reference in this
registration statement:
(a) Our annual report on Form 10-KSB for the fiscal year ended December
31, 2004 (File No. 000-21467), filed with the Securities and Exchange Commission
on March 17, 2005.
All reports and other documents we subsequently filed after the date of
this registration statement under Sections 13(a), 13(c), 14 and 15(d) of the
Exchange Act, prior to the filing of a post-effective amendment that indicates
that all securities offered under this registration statement have been sold, or
which deregisters all securities then remaining unsold, shall be deemed
incorporated by reference into this registration statement and shall be a part
of this registration statement from the date of filing such documents.
For purposes of this registration statement, any document or any
statement contained in a document incorporated or deemed to be incorporated
herein by reference shall be deemed to be modified or superseded to the extent
that a subsequently filed document or a statement contained herein or in any
other subsequently filed document, which also is or is deemed to be incorporated
herein by reference modifies or supersedes such document or such statement in
such document. Any statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this registration
statement.
Notwithstanding the above, information that is "furnished to" the
Commission shall not be deemed "filed with" the Commission and shall not be
deemed incorporated by reference into this Registration Statement.
ITEM 4. Description of Securities.
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GENERAL
Our Certificate of Incorporation currently authorizes us to issue
100,000,000 shares of common stock, $.001 par value per share, and 10,000,000
shares of preferred stock, $.001 par value per share. We currently has 2,939,414
shares of common stock outstanding. All outstanding shares of common stock are
fully paid and nonassessable.
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COMMON STOCK
The following summarizes the rights of holders of our common stock:
o each holder of common stock is entitled to one vote per share on all
matters to be voted upon by the stockholders;
o subject to preferences that may apply to shares of preferred stock
that may be outstanding, the holders of common stock are entitled to receive
such lawful dividends as may be declared by our board of directors;
o upon liquidation, dissolution or winding up, the holders of shares of
common stock are entitled to receive a pro rata portion of all of our assets
remaining for distribution after satisfaction of all liabilities and the payment
of any liquidation preference of any preferred stock that may be outstanding;
o there are no redemption or sinking fund provisions applicable to our
common stock; and
o there are no preemptive or conversion rights applicable to our
common stock.
PREFERRED STOCK
Our board of directors is authorized to issue from time to time, in one
or more designated series, any or all of our authorized but unissued shares of
preferred stock with dividend, redemption, conversion, exchange, voting and
other provisions as may be provided in that particular series. The issuance need
not be approved by our common stockholders.
Issuance of a new series of preferred stock, while providing desirable
flexibility in connection with possible acquisitions and other corporate
purposes, could have the effect of entrenching our board of directors and making
it more difficult for a third-party to acquire, or discourage a third-party from
acquiring, a majority of our outstanding voting stock. We have no present plans
to issue any shares of or to designate any series of preferred stock.
ITEM 5. Interests of Named Experts and Counsel.
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Not Applicable.
ITEM 6. Indemnification of Directors and Officers.
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Section 145 of the Delaware General Corporation Law permits a
corporation to indemnify its directors and officers against expenses, judgments,
fines and amounts paid in settlement actually and reasonably incurred in
connection with a pending or completed action, suit or proceeding if the officer
or director acted in good faith and in a manner the officer or director
reasonably believed to be in the best interests of the corporation.
Our certificate of incorporation provides that, except in certain
specified instances, our directors shall not be personally liable to us or our
stockholders for monetary damages for breach of their fiduciary duty as
directors.
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In addition, our certificate of incorporation and bylaws obligate us to
indemnify our directors and officers against expenses and other amounts
reasonably incurred in connection with any proceeding arising from the fact that
such person is or was an agent of ours. Our bylaws also authorize us to purchase
and maintain insurance on behalf of any of our directors or officers against any
liability asserted against that person in that capacity, whether or not we would
have the power to indemnify that person under the provisions of the Delaware
General Corporation Law.
To the extent indemnification for liabilities arising under the
Securities Act of 1933, as amended, may be permitted to directors, officers and
controlling persons of Pacific Ethanol under the above provisions, or otherwise,
we have been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act of 1933, as amended, and is, therefore, unenforceable.
ITEM 7. Exemption from Registration Claimed.
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Not Applicable.
ITEM 8. Exhibits.
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4.1 2004 Stock Option Plan
5.1 Opinion of Meritz & Muenz LLP
23.1 Consent of Meritz & Muenz LLP (included in Exhibit 5.1)
23.2 Consent of Nussbaum Yates & Wolpow, P.C.
24.1 Power of Attorney (contained on the signature pages to this
Registration Statement)
ITEM 9. Undertakings.
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We hereby undertake:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement (except that
paragraphs (i) and (ii) below shall not apply if the information required by
paragraphs (i) and (ii) below is contained in periodic reports filed by us with
the Commission pursuant to Section 13 or Section 15(d) of the Exchange Act that
are incorporated by reference in this Registration Statement):
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in this Registration Statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement.
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(2) For determining liability under the Securities Act, to treat each
post-effective amendment as a new registration statement of the securities
offered, and the offering of the securities at that time to be the initial bona
fide offering.
(3) To file a post-effective amendment to remove from registration any
of the securities that remain unsold at the end of the offering.
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SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Coral Springs, State of Florida, on March 23, 2005.
PACIFIC ETHANOL, INC.,
a Delaware corporation
By: /s/ BARRY SIEGEL
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Barry Siegel, President and Chief
Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Neil Koehler his attorney-in-fact and
agent, with the power of substitution and resubstitution, for him and in his
name, place or stead, in any and all capacities, to sign any amendment to this
Registration Statement on Form S-8, and to file such amendments, together with
exhibits and other documents in connection therewith, with the Securities and
Exchange Commission, granting to such attorney-in-fact and agent, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully as he might or could do in
person, and ratifying and confirming all that the attorney-in-fact and agent, or
his substitute or substitutes, may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
date indicated.
SIGNATURE TITLE DATE
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/s/ BARRY SIEGEL Chairman of the Board, President March 23, 2005
----------------------- and Chief Executive Officer
Barry Siegel (Principal Executive Officer)
/s/ PHILIP KART Senior Vice President, Secretary March 23, 2005
----------------------- and Chief Financial Officer
Philip Kart (Principal Financial Officer)
/s/ KENNETH J. FRIEDMAN Director March 23, 2005
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Kenneth J. Friedman
/s/ BRUCE S. UDELL Director March 23, 2005
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Bruce S. Udell
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EXHIBIT INDEX
4.1 2004 Stock Option Plan
5.1 Opinion of Meritz & Muenz LLP
23.1 Consent of Meritz & Muenz LLP (included in Exhibit 5.1)
23.2 Consent of Nussbaum Yates & Wolpow, P.C.
24.1 Power of Attorney (contained on the signature pages to this
Registration Statement)
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