AND EXCHANGE COMMISSION
Washington, D.C. 20549
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)
|(State or Other Jurisdiction||(Commission File Number)||(IRS Employer|
|of Incorporation)||Identification No.)|
Capitol Mall, Suite 2060
|(Address of Principal Executive Offices)||(Zip Code)|
Registrant’s Telephone Number, Including Area Code: (916) 403-2123
|(Former Name or Former Address, if Changed Since Last Report)|
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):
|☐||Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)|
|☐||Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)|
|☐||Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))|
|☐||Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))|
Securities registered pursuant to Section 12(b) of the Act:
|Title of each class||Trading Symbol(s)||Name of each exchange on which registered|
|Common Stock, $0.001 par value||PEIX||The
Nasdaq Stock Market LLC|
(Nasdaq Capital Market)
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. ☐
|Item 1.01||Entry into a Material Definitive Agreement.|
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.
|Item 9.01||Financial Statements and Exhibits.|
|5.1||Opinion of Troutman Pepper Hamilton Sanders LLP (*)|
|10.1||At Market Issuance Sales Agreement dated as of August 13, 2020 by and between Pacific Ethanol, Inc. and H.C. Wainwright & Co., LLC (*)|
|23.1||Consent of Troutman Pepper Hamilton Sanders LLP (included in Exhibit 5.1)|
|(#)||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.|
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||PACIFIC ETHANOL, INC.|
|By:||/S/ CHRISTOPHER W. WRIGHT|
|Christopher W. Wright,|
|Vice President, General Counsel & Secretary|