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) |
June 18, 2013 |
PACIFIC ETHANOL, INC.
(Exact name of registrant as specified
in its charter)
| Delaware |
|
000-21467 |
|
41-2170618 |
| (State or other jurisdiction of incorporation) |
|
(Commission File Number) |
|
(IRS Employer Identification No.) |
| 400 Capitol Mall, Suite 2060, Sacramento, CA |
|
95814 |
| (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):
| o |
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
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| o |
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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| o |
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
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| o |
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Item 5.07 Submission of Matters to a
Vote of Security Holders
The 2013 Annual Meeting
of Stockholders (“Annual Meeting”) of Pacific Ethanol, Inc. (the “Company”) was held on June 18, 2013.
The following nominees were elected by the votes indicated to serve as directors for a one year term, or until their successors
are elected and qualified:
|
Name |
Total
Votes
for Director |
Total
Votes
Withheld from
Director |
Total
Broker
Non-Votes |
| William L. Jones |
20,720,275 |
4,430,870 |
73,309,101 |
| Neil M. Koehler |
20,160,989 |
4,990,156 |
73,309,101 |
| Terry L. Stone |
21,583,977 |
3,567,168 |
73,309,101 |
| John L. Prince |
21,616,498 |
3,534,647 |
73,309,101 |
| Douglas L. Kieta |
21,652,807 |
3,498,338 |
73,309,101 |
| Larry D. Layne |
19,358,315 |
5,792,830 |
73,309,101 |
| Michael D. Kandris |
21,648,905 |
3,502,240 |
73,309,101 |
The following proposals
were also approved at the Annual Meeting by the votes indicated:
Proposal Two: To approve the 2012
compensation of the Company’s named executive officers, as disclosed in the proxy statement pursuant to the compensation
disclosure rules of the Securities and Exchange Commission (“say-on-pay”).
| |
Total Votes |
| For |
17,196,536 |
| Against |
7,322,801 |
| Abstain |
631,808 |
| Broker Non-Votes |
73,309,101 |
Proposal Three: To recommend conducting
an advisory vote on executive compensation every one, two or three years.
| |
Total Votes |
| One Year |
11,625,706 |
| Two Years |
1,509,619 |
| Three Years |
10,613,604 |
| Abstain |
1,402,215 |
| Broker Non-Votes |
N/A |
Proposal Four: To approve an amendment
to the Company’s 2006 Stock Incentive Plan to increase the number of shares of common stock authorized for issuance under
the plan from 414,285 shares to 914,285 shares (as adjusted for the Company’s 1-for-15 reverse stock split effective May
14, 2013).
| |
Total Votes |
| For |
15,457,641 |
| Against |
9,140,066 |
| Abstain |
553,438 |
| Broker Non-Votes |
73,309,101 |
Proposal Five:
To authorize, for purposes of complying with NASDAQ Listing Rule 5635(d), the Company to issue, under the terms of that certain
Securities Purchase Agreement dated March 28, 2013 by and among the Company and the investors listed on the Schedule of Buyers
thereto, and related documents, in excess of that number of shares of the Company’s common stock equal to 20% of the total
number of shares of the Company’s common stock outstanding as of December 19, 2012.
| |
Total Votes |
| For |
18,693,773 |
| Against |
5,625,870 |
| Abstain |
831,502 |
| Broker Non-Votes |
73,309,101 |
Proposal Six: To ratify the appointment
of Hein & Associates LLP as the Company’s independent registered public accounting firm for the year ending December
31, 2013.
| |
Total Votes |
| For |
87,167,082 |
| Against |
8,312,778 |
| Abstain |
2,980,385 |
| Broker Non-Votes |
N/A |
Item 8.01 Other Events
Stockholder Approval
Notice
On March 28, 2013, the
Company entered into a Securities Purchase Agreement with certain investors (the “Investors”) pursuant to which the
Company agreed to sell to such Investors an aggregate of (i) 6,000 units (“Units”), with each Unit consisting of $1,000
of the Company’s Series A Subordinated Convertible Notes, a Series A Warrant to purchase up to 131.4 shares of the Company’s
common stock (as adjusted for the Company’s 1-for-15 reverse stock split effective May 14, 2013) for a term of two years
and a Series B Warrant to purchase up to 178.2 shares of the Company’s common stock (as adjusted for the Company’s
1-for-15 reverse stock split effective May 14, 2013) for a term of two years after the closing of the Series B Note Offering (as
defined below), in an offering (“Series A Offering”) pursuant to a prospectus supplement to the Company’s shelf
registration statement on Form S-3 (Registration No. 333-180731) at an initial closing and (ii) $8,000,000 of the Company’s
Series B Subordinated Convertible Notes (the “Series B Notes”) in an offering (the “Series B Note Offering”)
pursuant to a separate prospectus supplement to the Company’s shelf registration statement on Form S-3 (Registration No.
333-180731) at a subsequent closing.
The Series A Offering
closed on March 28, 2013. The closing of the Series B Note Offering is subject to various closing conditions, including,
without limitation, the requirement that the Company obtain stockholder approval for the Series A Offering and the Series B Note
Offering.
On June 18, 2013, the
Company delivered a notice to the Investors certifying that the Company had obtained stockholder approval for the Series A Offering
and the Series B Note Offering (“Stockholder Approval Notice”). The Stockholder Approval Notice is attached as exhibit
99.1 to this Current Report on Form 8-K. The Series B Note Offering is expected to close on or prior to June 21, 2013, subject
to satisfaction of customary closing conditions. A summary of the terms of the Series B Notes is contained in the Company’s
Current Report on Form 8-K filed on March 28, 2013.
GS CleanTech
Corporation Litigation
On May 24, 2013, GS
CleanTech Corporation (“GS CleanTech”) filed suit in the United States District Court for the Eastern District of
California, Sacramento Division (Case No.: 2:13-CV-01042-JAM-AC), naming the Company as a defendant. The suit alleges patent infringement
by virtue of certain corn oil separation technology in use at one or more of the Company’s ethanol production facilities,
including the plant located in Stockton, California. The complaint seeks preliminary and permanent injunctions prohibiting future
infringement on the patent owned by GS CleanTech and damages in an unspecified amount adequate to compensate GS CleanTech for
the alleged patent infringement, but in any event no less than a reasonable royalty for the use made of the inventions of the
patent, plus attorneys fees. The Company strongly disagrees that its use of corn oil separation technology infringes the patent
owned by GS CleanTech and intends to vigorously defend against GS CeanTech’s claims. As of the date of this report, discovery
has not commenced and a trial date has not been set. In addition, GS CleanTech has advised the Company that it is in the process
of amending its complaint.
Item 9.01 Financial Statements and Exhibits
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(a) |
Financial statements of businesses acquired. |
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Not applicable. |
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(b) |
Pro forma financial information. |
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Not applicable. |
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(c) |
Shell company transactions. |
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Not applicable. |
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(d) |
Exhibits. |
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Number |
Description |
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99.1 |
Stockholder Approval Notice |
SIGNATURES
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: June 18, 2013 |
PACIFIC ETHANOL, INC. |
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By: |
/s/ CHRISTOPHER W. WRIGHT |
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Christopher W. Wright, |
|
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Vice President, General Counsel & Secretary |
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EXHIBITS FILED WITH THIS REPORT
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Number |
Description |
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|
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99.1 |
Stockholder Approval Notice |
