paceth_8k-042109.htm
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)
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April 21, 2009
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PACIFIC ETHANOL, INC.
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(Exact
name of registrant as specified in its charter)
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Delaware
(State
or other jurisdiction
of
incorporation)
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000-21467
(Commission
File Number)
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41-2170618
(IRS
Employer
Identification
No.)
|
|
400 Capitol Mall, Suite 2060, Sacramento,
CA
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95814
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(Address
of principal executive offices)
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(Zip
Code)
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|
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Registrant’s
telephone number, including area code:
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(916) 403-2123
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(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):
o Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
o Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
o Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
o Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
Item
5.02. Departure of
Directors or Certain Officers; Election of Directors; Appointment of Certain
Officers; Compensatory Arrangements of Certain Officers.
(a) Not
applicable.
(b) Not
applicable.
(c) (1) On
April 21, 2009, Bryon T. McGregor was appointed as Interim Chief Financial
Officer and principal financial and accounting officer of Pacific Ethanol, Inc.
(the “Company”), effective immediately.
(2) Bryon T.
McGregor, 45, served as Vice President, Finance at Pacific Ethanol from
September 2008 until his appointment as Interim Chief Financial Officer. Prior
to joining Pacific Ethanol, Mr. McGregor was employed as Senior Director for
E*TRADE Financial from February 2002 to August 2008, serving in various
capacities including International Treasurer based in London, England from 2006
to 2008, Brokerage Treasurer and Director from 2003 to 2006 and Assistant
Treasurer and Director of Finance and Investor Relations from 2002 to 2003.
Prior to joining E*TRADE, Mr. McGregor served as Manager of Finance and Head of
Project Finance for BP (formerly Atlantic Richfield Company – ARCO) from 1998 to
2001. Mr. McGregor has extensive experience in banking and served as a Director
of International Project Finance for Credit Suisse from 1992 to 1998, as
Assistant Vice President for Sumitomo Mitsubishi Banking Corp (formerly The
Sumitomo Bank Limited) from 1989 to 1992, and as Commercial Banking Officer for
Bank of America from 1987 to 1989. Mr. McGregor has a B.S. degree in Business
Management from Brigham Young University with an emphasis in International
Finance and a minor in Japanese.
(3) (A) Employment Agreement effective as of
December 22, 2008 between Pacific Ethanol, Inc. and Bryon T.
McGregor
On
December 22, 2008, Bryon T. McGregor (“Employee”) entered into an Employment
Agreement with the Company in connection with Mr. McGregor’s employment with the
Company as its Vice President, Finance. On December 22, 2008,
Employee and the Company also entered into a First Amendment to Employment
Agreement (the Employment Agreement and the First Amendment to Employment
Agreement shall be collectively referred to herein as the “Employment
Agreement”). The Employment Agreement and the First Amendment to Employment
Agreement are included as Exhibits 10.1 and 10.2 to this Current Report on Form
8-K.
The
Employment Agreement provides for at-will employment. Employee is to
receive a base salary of $185,000 per year and is eligible to receive an annual
discretionary cash bonus of up to 30% of his base salary. Employee was, however,
guaranteed a minimum cash bonus of $40,000 for 2008.
Employee
was to be issued an aggregate of 5,000 shares of the Company’s common stock
pursuant to a restricted stock purchase agreement that will vest as to 2,500
shares on the first anniversary of Employee’s first day of employment and as to
an additional 2,500 shares on the second anniversary of Employee’s first day of
employment, provided Employee is employed by the Company at that
time.
Employee
is entitled to participate in the Company’s relocation assistance program, which
will cover (i) one house hunting/familiarization trip up to four (4) days for
Employee and his family, (ii) six (6) weeks of temporary housing, and (iii) a
relocation lump sum of $20,000 to be paid on the first full pay date after
employment. Employee will be obligated to repay all amounts received
under the relocation assistance program if he resigns before completing twelve
(12) months of employment.
In the
event the Company terminates Employee’s employment without cause or upon the
Employee’s disability, Employee is entitled to receive severance pay equal to
six (6) months of base salary. The term “cause” is defined in the
Employment Agreement as (i) Employee’s indictment or conviction of any
felony or of any crime involving dishonesty; (ii) Employee’s participation
in any fraud or other act of willful misconduct against the Company (including
any material breach of Company policy that causes or reasonably could cause harm
to the Company); (iii) Employee’s refusal to comply with any lawful directive of
the Company; (iv) Employee’s material breach of Employee’s fiduciary,
statutory, contractual, or common law duties to the Company (including any
material breach of the Employment Agreement or related Confidential Information
and Inventions Agreement); or (v) conduct by Employee which in the good faith
and reasonable determination of the Board demonstrates gross unfitness to serve;
provided, however, that in the event that any of the foregoing events is
reasonably capable of being cured, the Company shall, within twenty (20) days
after the discovery of such event, provide written notice to Employee describing
the nature of such event and Employee shall thereafter have ten (10) business
days to cure such event.
The
Employment Agreement also contains other customary terms and
conditions.
(B) Indemnity Agreement dated as of April 21, 2009
between Pacific Ethanol, Inc. and Bryon T. McGregor
The
Company entered into an Indemnity Agreement dated as of April 21, 2009 with
Bryon T. McGregor (“Indemnitee”) in connection with the appointment of
Indemnitee as Interim Chief Financial Officer of the
Company. Indemnitee’s appointment as Interim Chief Financial Officer
is effective as of April 21, 2009. The Indemnity Agreement is
included as Exhibit 10.3 to this Current Report on Form 8-K.
Under the
Indemnity Agreement, the Company has agreed to indemnify Indemnitee to the
fullest extent permitted by the Delaware General Corporation Law if (a)
Indemnitee is a party to or threatened to be made a party to or otherwise
involved in any proceeding, or (b) if Indemnitee is a party to or threatened to
be made a party to or otherwise involved in any proceeding by or in the right of
the Company to procure a judgment in its favor against any and all expenses
actually and reasonably incurred by Indemnitee in connection with the
investigation, defense, settlement or appeal of any such
proceeding.
The
indemnification obligations of the Company set forth in the preceding paragraph
are subject to the following exceptions: (a) the Company shall not be
obligated to indemnify Indemnitee on account of any proceeding with respect to
(i) remuneration paid to Indemnitee if it is determined by final judgment
or other final adjudication that such remuneration was in violation of law;
(ii) a final judgment rendered against Indemnitee for an accounting,
disgorgement or repayment of profits made from the purchase or sale by
Indemnitee of securities of the Company against Indemnitee or in connection with
a settlement by or on behalf of Indemnitee to the extent it is acknowledged by
Indemnitee and the Company that such amount paid in settlement resulted from
Indemnitee’s conduct from which Indemnitee received monetary personal profit,
pursuant to the provisions of Section 16(b) of the Securities Exchange Act
of 1934, as amended, or other provisions of any federal, state or local statute
or rules and regulations thereunder; (iii) a final judgment or other final
adjudication that Indemnitee’s conduct was in bad faith, knowingly fraudulent or
deliberately dishonest or constituted willful misconduct (but only to the extent
of such specific determination); or (iv) on account of conduct that is
established by a final judgment as constituting a breach of Indemnitee’s duty of
loyalty to the Company or resulting in any personal profit or advantage to which
Indemnitee is not legally entitled; (b) the Company shall not be obligated to
indemnify or advance expenses to Indemnitee with respect to proceedings or
claims initiated or brought by Indemnitee against the Company or its directors,
officers, employees or other agents and not by way of defense, except (i) with
respect to proceedings brought to establish or enforce a right to
indemnification under the Indemnity Agreement or under any other agreement,
provision in the Company’s Bylaws or Certificate of Incorporation or
applicable law, or (ii) with respect to any other proceeding initiated by
Indemnitee that is either approved by the Board of Directors or Indemnitee’s
participation is required by applicable law; (c) the Company shall not be
obligated to indemnify Indemnitee for any amounts paid in settlement of a
proceeding effected without the Company’s written consent; and (d) the Company
shall not be obligated to indemnify Indemnitee or otherwise act in violation of
any undertaking appearing in and required by the rules and regulations
promulgated under the Securities Act of 1933, as amended (the “Act”), or in any
registration statement filed with the Securities and Exchange Commission under
the Act.
“Expenses”
shall be broadly construed and shall include, without limitation, all direct and
indirect costs of any type or nature whatsoever (including, without limitation,
all attorneys’, witness, or other professional fees and related disbursements,
and other out-of-pocket costs of whatever nature), actually and reasonably
incurred by Indemnitee in connection with the investigation, defense or appeal
of a proceeding or establishing or enforcing a right to indemnification under
the Indemnity Agreement, the Delaware General Corporation Law or otherwise, and
amounts paid in settlement by or on behalf of Indemnitee, but shall not include
any judgments, fines or penalties actually levied against Indemnitee for such
individual’s violations of law. The term “expenses” shall also include
reasonable compensation for time spent by Indemnitee for which he is not
compensated by the Company or any subsidiary or third party (i) for any period
during which Indemnitee is not an agent, in the employment of, or providing
services for compensation to, the Company or any subsidiary; and (ii) if the
rate of compensation and estimated time involved is approved by the directors of
the Company who are not parties to any action with respect to which expenses are
incurred, for Indemnitee while an agent of, employed by, or providing services
for compensation to, the Company or any subsidiary.
If
Indemnitee requests the Company to pay the expenses of any proceeding, the
Company, if appropriate, shall be entitled to assume the defense of such
proceeding or to participate to the extent permissible in such proceeding, with
counsel reasonably acceptable to Indemnitee. Upon assumption of the
defense by the Company, the Company shall not be liable to Indemnitee for any
fees of counsel subsequently incurred by Indemnity with respect to the same
proceeding.
In
addition, the Company is required to advance expenses on behalf of the
Indemnitee in connection with Indemnitee’s defense in any such proceeding;
provided, that the Indemnitee undertakes in writing to repay such amounts to the
extent that it is ultimately determined that the Indemnitee is not entitled to
indemnification by the Company.
To the
extent that the Company maintains an insurance policy or policies providing
liability insurance for directors, officers, employees, or agents of the Company
or of any subsidiary, Indemnitee shall be covered by such policy or policies in
accordance with its or their terms to the maximum extent of the coverage
available for any such director, officer, employee or agent under such policy or
policies.
(d) Not
applicable.
(e) The
disclosures included in Item 5.02(c)(3) above are incorporated herein by
reference.
Item
9.01. Financial
Statements and Exhibits.
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(a)
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Financial statements
of businesses acquired.
Not
applicable.
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(b)
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Pro forma financial
information.
Not
applicable.
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(c)
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Shell company
transactions.
Not
applicable.
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10.1
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Employment
Agreement effective as of December 22, 2008 by and between Pacific
Ethanol, Inc. and Bryon T. McGregor
(*)
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10.2
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First
Amendment to Employment Agreement entered into on December 22, 2008 by and
between Pacific Ethanol, Inc. and Bryon T. McGregor
(*)
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10.3
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Indemnity
Agreement dated as of April 21, 2009 by and between Pacific Ethanol, Inc.
and Bryon T. McGregor (*)
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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: April
22, 2009
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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
Number
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Description
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10.1
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Employment
Agreement effective as of December 22, 2008 by and between Pacific
Ethanol, Inc. and Bryon T. McGregor
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10.2
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First
Amendment to Employment Agreement entered into on December 22, 2008 by and
between Pacific Ethanol, Inc. and Bryon T. McGregor
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10.3
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Indemnity
Agreement dated as of April 21, 2009 by and between Pacific Ethanol, Inc.
and Bryon T.
McGregor
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7