EXHIBIT 4.10
NEITHER THESE SECURITIES NOR THE SECURITIES ISSUABLE UPON EXERCISE OF THESE
SECURITIES HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR
THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN
AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE
SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR TO
SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE
COMPANY. THESE SECURITIES AND THE SECURITIES ISSUABLE UPON EXERCISE OF THESE
SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT SECURED
BY SUCH SECURITIES.
THIS WARRANT IS ISSUED IN CONNECTION WITH THE ACCESSITY SHARE EXCHANGE (AS
DEFINED BELOW) AS A REPLACEMENT WARRANT OF A NONSTATUTORY STOCK OPTION AGREEMENT
ISSUED ON MAY 20, 2004.
PACIFIC ETHANOL, INC.
WARRANT
Warrant No. Manternach-1 Original Issue Date: March 23, 2005
Pacific Ethanol, Inc., a Delaware corporation (the "Company"), hereby
certifies that, for value received, XXXXXXX X. XXXXXXXXXX, or its registered
assigns (the "Holder"), is entitled to purchase from the Company up to a total
of 25,000 shares of Common Stock (each such share, a "Warrant Share" and all
such shares, the "Warrant Shares"), at any time and from time to time from and
after the Original Issue Date and through and including March 23, 2006 (the
"Expiration Date"), and subject to the following terms and conditions:
1. DEFINITIONS. As used in this Warrant, the following terms shall have
the respective definitions set forth in this Section 1. Capitalized terms that
are used and not defined in this Warrant that are defined in the Purchase
Agreement (as defined below) shall have the respective definitions set forth in
the Purchase Agreement.
"ACCESSITY SHARE EXCHANGE" means the share exchange transaction among
Accessity Corp., Pacific Ethanol, Inc., a California corporation ("PEI
California"), Kinergy Marketing, LLC and ReEnergy, LLC as described in that
certain Share Exchange Agreement dated as of May 14, 2004, as amended on July
30, 2004, October 1, 2004, January 7, 2005, February 16, 2005 and March 3, 2005,
and pursuant to which Accessity Corp. was merged with and into the Company.
"BUSINESS DAY" means any day except Saturday, Sunday and any day that
is a federal legal holiday in the United States or a day on which banking
institutions in the State of California are authorized or required by law or
other government action to close.
"CALIFORNIA COURTS" means the state and federal courts sitting in the
County of Orange, State of California.
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"CAUSE" means any of the following: (1) the Holder's theft, dishonesty,
or falsification of any documents or records of the Company; (2) the Holder's
improper use or disclosure of the Company's confidential or proprietary
information; (3) any action by the Holder which has a material detrimental
effect on the Company's reputation or business; (4) the Holder's failure or
inability to perform any reasonable assigned duties after written notice from
the Company of, and a reasonable opportunity to cure, such failure or inability;
(5) any material breach by the Holder of any employment agreement between the
Holder and the Company, which breach is not cured pursuant to the terms of such
agreement; or (6) the Holder's conviction (including any plea of guilty or nolo
contendere) of any criminal act which materially impairs the Holder's ability to
perform his or her duties with the Company.
"COMMON STOCK" means the common stock of the Company, $.001 par value
per share, and any securities into which such common stock may hereafter be
reclassified.
"DISABILITY" means the permanent and total disability of the Holder
within the meaning of Section 22(e)(3) of the Internal Revenue Code of 1986, as
amended.
"EXERCISE PRICE" means One Cent ($0.01) per share, subject to
adjustment in accordance with Section 10.
"FUNDAMENTAL TRANSACTION" means any of the following: (1) the Company
effects any merger or consolidation of the Company with or into another Person
pursuant to which the Company is not the surviving entity (other than a
migratory merger conducted for the purpose of changing the Company's state of
incorporation), (2) the Company effects any sale of all or substantially all of
its assets in one or a series of related transactions, (3) any tender offer or
exchange offer (whether by the Company or another Person, but not including the
Accessity Share Exchange) is completed pursuant to which holders of Common Stock
are permitted to tender or exchange their shares for other securities, cash or
property, or (4) the Company effects any reclassification of the Common Stock or
any compulsory share exchange pursuant to which the Common Stock is effectively
converted into or exchanged for other securities, cash or property.
"GOOD REASON" means any one or more of the following:
(a) the Holder's death or Disability;
(b) without the Holder's express written consent, the
relocation of the principal place of the Holder's employment to a location that
is more than fifty (50) miles from the Holder's principal place of employment
immediately prior to the Original Issue Date, or the imposition of travel
requirements substantially more demanding of the Holder than such travel
requirements existing immediately prior to the Original Issue Date;
(c) any failure by the Company to pay, or any material
reduction by the Company of Holder's base salary in effect immediately prior to
the Original Issue Date (unless reductions comparable in amount and duration are
concurrently made for all other employees of the Company with responsibilities,
organizational level and title comparable to the Holder's).
"ORIGINAL ISSUE DATE" means the Original Issue Date first set forth on
the first page of this Warrant.
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"SERVICE" means the Holder's employment or service with the Company in
the capacity of an employee. The Holder's Service shall not be deemed to have
terminated merely because of a change in the capacity in which the Holder
renders Service to the Company, provided that there is no interruption or
termination of the Holder's Service. Furthermore, the Holder's Service with the
Company shall not be deemed to have terminated if the Holder takes any sick
leave or other bona fide leave of absence approved by the Company; provided,
however, that if any such leave exceeds ninety (90) days, on the ninety-first
(91st) day of such leave the Holder's Service shall be deemed to have terminated
unless the Holder's right to return to Service with the Company is guaranteed by
statue or contract. The Holder's Service shall be deemed to have terminated upon
an actual termination of Service.
"TRADING DAY" means (i) a day on which the Common Stock is traded on a
Trading Market (other than the OTC Bulletin Board), or (ii) if the Common Stock
is not listed on a Trading Market (other than the OTC Bulletin Board), a day on
which the Common Stock is traded in the over-the-counter market, as reported by
the OTC Bulletin Board, or (iii) if the Common Stock is not quoted on any
Trading Market, a day on which the Common Stock is quoted in the
over-the-counter market as reported by the Pink Sheets, LLC (or any similar
organization or agency succeeding to its functions of reporting prices);
provided, that in the event that the Common Stock is not listed or quoted as set
forth in (i), (ii) and (iii) hereof, then Trading Day shall mean a Business Day.
2. REGISTRATION OF WARRANT. The Company shall register this Warrant
upon records to be maintained by the Company for that purpose (the "Warrant
Register"), in the name of the record Holder hereof from time to time. The
Company may deem and treat the registered Holder of this Warrant as the absolute
owner hereof for the purpose of any exercise hereof or any distribution to the
Holder, and for all other purposes, absent actual notice to the contrary.
3. REGISTRATION OF TRANSFERS. The Company shall register the transfer
of any portion of this Warrant in the Warrant Register, upon surrender of this
Warrant, with the Form of Assignment attached hereto duly completed and signed,
to the Company at its address specified herein. Upon any such registration or
transfer, a new Warrant to purchase Common Stock, in substantially the form of
this Warrant (any such new Warrant, a "New Warrant"), evidencing the portion of
this Warrant so transferred shall be issued to the transferee and a New Warrant
evidencing the remaining portion of this Warrant not so transferred, if any,
shall be issued to the transferring Holder. The acceptance of the New Warrant by
the transferee thereof shall be deemed the acceptance by such transferee of all
of the rights and obligations of a holder of a Warrant.
4. EXERCISE AND DURATION OF WARRANTS.
(a) This Warrant shall be exercisable by the registered
Holder, to the extent Warrant Shares are vested as provided below, from time to
time on or after the Original Issue Date through and including the Expiration
Date, subject to Section 5 below. At 5:00 p.m., Pacific Standard Time on the
Expiration Date, the portion of this Warrant not exercised prior thereto shall
be and become void and of no value. The Company may not call or redeem any
portion of this Warrant without the prior written consent of the affected
Holder.
(b) This Warrant shall be vested in full on the Original Issue
Date.
5. EFFECT OF TERMINATION OF SERVICE.
(a) TERMINATION BY COMPANY FOR CAUSE. If the Holder's Service
with the Company is terminated by the Company for Cause, this Warrant, to the
extent vested but unexercised on the date on which the Holder's Service
terminated, may be exercised by the Holder at any time prior to the expiration
of three (3) months after the date on which the Holder's Service terminated, but
in any event no later than the Expiration Date.
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(b) TERMINATION BY HOLDER WITHOUT GOOD REASON. If the Holder's
Service with the Company is terminated by the Holder without Good Reason, this
Warrant, to the extent vested but unexercised on the date on which the Holder's
Service terminated, may be exercised by the Holder at any time prior to the
expiration of three (3) months after the date on which the Holder's Service
terminated, but in any event no later than the Expiration Date.
6. DELIVERY OF WARRANT SHARES.
(a) To effect exercises hereunder, the Holder shall not be
required to physically surrender this Warrant unless the aggregate Warrant
Shares represented by this Warrant is being exercised. Upon delivery of the
Exercise Notice (in the form attached hereto) to the Company (with the attached
Warrant Shares Exercise Log) at its address for notice set forth herein and upon
payment of the Exercise Price multiplied by the number of Warrant Shares that
the Holder intends to purchase hereunder, the Company shall promptly (but in no
event later than three Trading Days after the Date of Exercise (as defined
herein)) issue and deliver to the Holder, a certificate for the Warrant Shares
issuable upon such exercise. The Company shall, upon request of the Holder and
subsequent to the date on which a registration statement covering the resale of
the Warrant Shares has been declared effective by the Securities and Exchange
Commission ("Commission"), use its reasonable best efforts to deliver Warrant
Shares hereunder electronically through the Depository Trust Corporation or
another established clearing corporation performing similar functions, if
available, provided, that, the Company may, but will not be required to change
its transfer agent if its current transfer agent cannot deliver Warrant Shares
electronically through the Depository Trust Corporation. A "Date of Exercise"
means the date on which the Holder shall have delivered to the Company: (i) the
Exercise Notice (with the Warrant Exercise Log attached to it), appropriately
completed and duly signed and (ii) payment of the Exercise Price for the number
of Warrant Shares so indicated by the Holder to be purchased.
(b) If by the third Trading Day after a Date of Exercise the
Company fails to deliver the required number of Warrant Shares in the manner
required pursuant to Section 6(a), then the Holder will have the right to
rescind such exercise.
(c) If by the third Trading Day after a Date of Exercise the
Company fails to deliver the required number of Warrant Shares in the manner
required pursuant to Section 6(a), and if after such third Trading Day and prior
to the receipt of such Warrant Shares, the Holder purchases (in an open market
transaction or otherwise) shares of Common Stock to deliver in satisfaction of a
sale by the Holder of the Warrant Shares which the Holder anticipated receiving
upon such exercise (a "Buy-In"), then the Company shall (1) pay in cash to the
Holder the amount by which (x) the Holder's total purchase price (including
brokerage commissions, if any) for the shares of Common Stock so purchased
exceeds (y) the amount obtained by multiplying (A) the number of Warrant Shares
that the Company was required to deliver to the Holder in connection with the
exercise at issue by (B) the closing sale price of the Common Stock at the time
of the obligation giving rise to such purchase obligation and (2) at the option
of the Holder, either reinstate the portion of the Warrant and equivalent number
of Warrant Shares for which such exercise was not honored or deliver to the
Holder the number of shares of Common Stock that would have been issued had the
Company timely complied with its exercise and delivery obligations hereunder.
The Holder shall provide the Company written notice and supporting documentation
indicating the amounts payable to the Holder in respect of the Buy-In.
(d) The Company's obligations to issue and deliver Warrant
Shares in accordance with the terms hereof are absolute and unconditional,
irrespective of any action or inaction by the Holder to enforce the same, any
waiver or consent with respect to any provision hereof, the recovery of any
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judgment against any person or any action to enforce the same, or any setoff,
counterclaim, recoupment, limitation or termination, or any breach or alleged
breach by the Holder or any other person of any obligation to the Company or any
violation or alleged violation of law by the Holder or any other person, and
irrespective of any other circumstance which might otherwise limit such
obligation of the Company to the Holder in connection with the issuance of
Warrant Shares. Nothing herein shall limit a Xxxxxx's right to pursue any other
remedies available to it hereunder, at law or in equity including, without
limitation, a decree of specific performance and/or injunctive relief with
respect to the Company's failure to timely deliver certificates representing
Warrant Shares upon exercise of the Warrant as required pursuant to the terms
hereof.
7. CHARGES, TAXES AND EXPENSES. Issuance and delivery of Warrant Shares
upon exercise of this Warrant shall be made without charge to the Holder for any
issue or transfer tax, withholding tax, transfer agent fee or other incidental
tax or expense in respect of the issuance of such certificates, all of which
taxes and expenses shall be paid by the Company; provided, however, that the
Company shall not be required to pay any tax which may be payable in respect of
any transfer involved in the registration of any certificates for Warrant Shares
or Warrants in a name other than that of the Holder. The Holder shall be
responsible for all other tax liability that may arise as a result of holding or
transferring this Warrant or receiving Warrant Shares upon exercise hereof.
8. REPLACEMENT OF WARRANT. If this Warrant is mutilated, lost, stolen
or destroyed, the Company shall issue or cause to be issued in exchange and
substitution for and upon cancellation hereof, or in lieu of and substitution
for this Warrant, a New Warrant, but only upon receipt of evidence reasonably
satisfactory to the Company of such loss, theft or destruction and customary and
reasonable indemnity (which shall not include a surety bond), if requested.
Applicants for a New Warrant under such circumstances shall also comply with
such other reasonable regulations and procedures and pay such other reasonable
third-party costs as the Company may prescribe. If a New Warrant is requested as
a result of a mutilation of this Warrant, then the Holder shall deliver such
mutilated Warrant to the Company as a condition precedent to the Company's
obligation to issue the New Warrant.
9. RESERVATION OF WARRANT SHARES. The Company covenants that it will at
all times reserve and keep available out of the aggregate of its authorized but
unissued and otherwise unreserved Common Stock, solely for the purpose of
enabling it to issue Warrant Shares upon exercise of this Warrant as herein
provided, the number of Warrant Shares which are then issuable and deliverable
upon the exercise of this entire Warrant, free from preemptive rights or any
other contingent purchase rights of Persons other than the Holder (taking into
account the adjustments and restrictions of Section 10). The Company covenants
that all Warrant Shares so issuable and deliverable shall, upon issuance and the
payment of the applicable Exercise Price in accordance with the terms hereof, be
duly and validly authorized, issued and fully paid and nonassessable.
10. CERTAIN ADJUSTMENTS. The Exercise Price and number of Warrant
Shares issuable upon exercise of this Warrant are subject to adjustment from
time to time as set forth in this Section 10.
(a) STOCK DIVIDENDS AND SPLITS. If the Company, at any time
while this Warrant is outstanding, (i) pays a stock dividend on its Common Stock
or otherwise makes a distribution on any class of capital stock that is payable
in shares of Common Stock, (ii) subdivides outstanding shares of Common Stock
into a larger number of shares, or (iii) combines outstanding shares of Common
Stock into a smaller number of shares, then in each such case the Exercise Price
shall be multiplied by a fraction of which the numerator shall be the number of
shares of Common Stock outstanding immediately before such event and of which
the denominator shall be the number of shares of Common Stock outstanding
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immediately after such event. Any adjustment made pursuant to clause (i) of this
paragraph shall become effective immediately after the payment of the dividend
or the making of the distribution, and any adjustment pursuant to clause (ii) or
(iii) of this paragraph shall become effective immediately after the effective
date of such subdivision or combination.
(b) FUNDAMENTAL TRANSACTIONS. If, at any time while this
Warrant is outstanding there is a Fundamental Transaction, then the Holder shall
have the right thereafter to receive, upon exercise of this Warrant, the same
amount and kind of securities, cash or property as it would have been entitled
to receive upon the occurrence of such Fundamental Transaction if it had been,
immediately prior to such Fundamental Transaction, the holder of the number of
Warrant Shares then issuable upon exercise in full of this Warrant (the
"Alternate Consideration"). For purposes of any such exercise, the determination
of the Exercise Price shall be appropriately adjusted to apply to such Alternate
Consideration based on the amount of Alternate Consideration issuable in respect
of one share of Common Stock in such Fundamental Transaction, and the Company
shall apportion the Exercise Price among the Alternate Consideration in a
reasonable manner reflecting the relative value of any different components of
the Alternate Consideration. If holders of Common Stock are given any choice as
to the securities, cash or property to be received in a Fundamental Transaction,
then the Holder shall be given the same choice as to the Alternate Consideration
it receives upon any exercise of this Warrant following such Fundamental
Transaction. At the Holder's option and request, any successor to the Company or
surviving entity in such Fundamental Transaction shall issue to the Holder a new
warrant substantially in the form of this Warrant and consistent with the
foregoing provisions and evidencing the Holder's right to purchase the Alternate
Consideration for the aggregate Exercise Price upon exercise thereof. The terms
of any agreement pursuant to which a Fundamental Transaction is effected shall
include terms requiring any such successor or surviving entity to comply with
the provisions of this paragraph (b) and insuring that the Warrant (or any such
replacement security) will be similarly adjusted upon any subsequent transaction
analogous to a Fundamental Transaction.
(c) NUMBER OF WARRANT SHARES. Simultaneously with any
adjustment to the Exercise Price pursuant to this Section 10, the number of
Warrant Shares that may be purchased upon exercise of this Warrant shall be
increased or decreased proportionately, so that after such adjustment the
aggregate Exercise Price payable hereunder for the adjusted number of Warrant
Shares shall be the same as the aggregate Exercise Price in effect immediately
prior to such adjustment.
(d) CALCULATIONS. All calculations under this Section 10 shall
be made to the nearest cent or the nearest 1/100th of a share, as applicable.
The number of shares of Common Stock outstanding at any given time shall not
include shares owned or held by or for the account of the Company, and the
disposition of any such shares shall be considered an issue or sale of Common
Stock.
(e) NOTICE OF ADJUSTMENTS. Upon the occurrence of each
adjustment pursuant to this Section 10, the Company at its expense will promptly
compute such adjustment in accordance with the terms of this Warrant and prepare
a certificate setting forth such adjustment, including a statement of the
adjusted Exercise Price and adjusted number or type of Warrant Shares or other
securities issuable upon exercise of this Warrant (as applicable), describing
the transactions giving rise to such adjustments and showing in detail the facts
upon which such adjustment is based. Upon written request, the Company will
promptly deliver a copy of each such certificate to the Holder and to the
Company's Transfer Agent.
(f) NOTICE OF CORPORATE EVENTS. If the Company (i) declares a
dividend or any other distribution of cash, securities or other property in
respect of its Common Stock, including without limitation any granting of rights
or warrants to subscribe for or purchase any capital stock of the Company or any
Subsidiary, (ii) authorizes or approves, enters into any agreement contemplating
or solicits stockholder approval for any Fundamental Transaction or (iii)
authorizes the voluntary dissolution, liquidation or winding up of the affairs
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of the Company, then the Company shall deliver to the Holder a notice describing
the material terms and conditions of such transaction (but only to the extent
such disclosure would not result in the dissemination of material, non-public
information to the Holder) at least ten (10) calendar days prior to the
applicable record or effective date on which a Person would need to hold Common
Stock in order to participate in or vote with respect to such transaction, and
the Company will take all steps reasonably necessary in order to insure that the
Holder is given the practical opportunity to exercise this Warrant prior to such
time so as to participate in or vote with respect to such transaction; provided,
however, that the failure to deliver such notice or any defect therein shall not
affect the validity of the corporate action required to be described in such
notice.
11. PAYMENT OF EXERCISE PRICE. The Holder shall pay the Exercise Price
by delivering to the Company immediately available funds.
12. NO FRACTIONAL SHARES. No fractional shares of Warrant Shares will
be issued in connection with any exercise of this Warrant. In lieu of any
fractional shares which would, otherwise be issuable, the Company shall pay cash
equal to the product of such fraction multiplied by the closing sale price of
one Warrant Share as reported by the applicable Trading Market on the date of
exercise.
13. REGISTRATION RIGHTS.
(a) PIGGY-BACK REGISTRATION RIGHTS. If at any time when there
is not an effective registration statement covering the Warrant Shares, the
Company shall determine to prepare and file with the Commission a registration
statement relating to an offering for its own account or the account of others
under the Securities Act of any of its equity securities, other than on Form S-4
or Form S-8 (each as promulgated under the Securities Act) or their then
equivalents relating to equity securities to be issued solely in connection with
any acquisition of any entity or business or equity securities issuable in
connection with stock option or other employee benefit plans, the Company shall
send to the Holder of this Warrant written notice of such determination and, if
within fifteen (15) days after receipt of such notice, any such holder shall so
request in writing, (which request shall specify the Warrant Shares intended to
be registered on behalf of the Holder), the Company will cause the registration
under the Securities Act of all Warrant Shares which the Company has been so
requested to register by the Holder, to the extent requisite to permit the
disposition of the Warrant Shares so to be registered, provided that if at any
time after giving written notice of its intention to register any securities and
prior to the effective date of the registration statement filed in connection
with such registration, the Company shall determine for any reason not to
register or to delay registration of such securities, the Company may, at its
election, give written notice of such determination to the Holder and,
thereupon, (i) in the case of a determination not to register, shall be relieved
of its obligation to register any Warrant Shares in connection with such
registration, and (ii) in the case of a determination to delay registering,
shall be permitted to delay registering any Warrant Shares being registered
pursuant to this Section for the same period as the delay in registering such
other securities. The Company shall include in such registration statement all
or any part of such Warrant Shares the Holder requests to be registered;
provided, however, that the Company shall not be required to register any
Warrant Shares pursuant to this Section that are eligible for sale pursuant to
Rule 144(k) of the Securities Act. In the case of an underwritten public
offering, if the managing underwriter(s) or underwriter(s) should reasonably
object to the inclusion of the Warrant Shares in such registration statement,
then if the Company after consultation with the managing underwriter should
reasonably determine that the inclusion of such Warrant Shares, would materially
adversely affect the offering contemplated in such registration statement, and
based on such determination recommends inclusion in such registration statement
of fewer or none of the Warrant Shares of the Holders, then the number of
Warrant Shares of the Holder included in such registration statement may be
reduced if the Company after consultation with the underwriter(s) recommends the
inclusion of fewer Warrant Shares, or none of the Warrant Shares shall be
included in such registration statement, if the Company after consultation with
the underwriter(s) recommends the inclusion of none of such Warrant Shares.
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(b) NOTIFICATION. The Company shall notify the Holder as
promptly as possible (and, in the case of (i)(A) below, not less than three (3)
days prior to such filing) and (if requested by any such person) confirm such
notice in writing no later than one (1) business day following the day (i)(A)
when a prospectus or any prospectus supplement or post-effective amendment to
the registration statement is proposed to be filed; (B) when the Commission
notifies the Company whether there will be a "review" of such registration
statement and whenever the Commission comments in writing on such registration
statement and (C) with respect to the registration statement or any
post-effective amendment, when the same has become effective; (ii) of any
request by the Commission or any other federal or state governmental authority
for amendments or supplements to the registration statement or prospectus or for
additional information; (iii) of the issuance by the Commission of any stop
order suspending the effectiveness of the registration statement covering any or
all of the Warrant Shares or the initiation of any proceedings for that purpose;
(iv) of the receipt by the Company of any notification with respect to the
suspension of the qualification or exemption from qualification of any of the
Warrant Shares for sale in any jurisdiction, or the initiation or threatening of
any proceeding for such purpose; and (v) of the occurrence of any event that
makes any statement made in the registration statement or prospectus or any
document incorporated or deemed to be incorporated therein by reference untrue
in any material respect or that requires any revisions to the registration
statement, prospectus or other documents so that, in the case of the
registration statement or the prospectus, as the case may be, it will not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading.
(c) CERTAIN COVENANTS OF HOLDER.
(i) Holder covenants and agrees that (i) it will not
sell any Warrant Shares under the registration statement until
it has received copies of the prospectus as then amended or
supplemented and notice from the Company that such
registration statement and any post-effective amendments
thereto have become effective, (ii) it and its officers,
directors or affiliates, if any, will comply with the
prospectus delivery requirements of the Securities Act as
applicable to them in connection with sales of Warrant Shares
pursuant to the registration statement and (iii) it will
furnish to the Company information regarding such Holder and
the distribution of such Warrant Shares as is required by law
to be disclosed in the registration statement, and the Company
may exclude from such registration the Warrant Shares of any
such Holder who unreasonably fails to furnish such information
within a reasonable time.
(ii) Holder agrees by its acquisition of Warrant
Shares that, upon receipt of a notice from the Company of the
occurrence of any event of the kind described in Section 13(b)
above, such Holder will forthwith discontinue disposition of
Warrant Shares under the registration statement until such
Xxxxxx's receipt of the copies of the supplemented prospectus
and/or amended registration statement, or until it is advised
in writing by the Company that the use of the applicable
prospectus may be resumed, and, in either case, has received
copies of any additional or supplemental filings that are
incorporated or deemed to be incorporated by reference in such
prospectus or registration statement.
(d) INDEMNIFICATION. The Holder shall indemnify and hold
harmless the Company, the directors, officers, agents and employees, each person
who controls the Company (within the meaning of Section 15 of the Securities Act
and Section 20 of the Exchange Act), and the directors, officers, agents or
employees of such controlling persons, to the fullest extent permitted by
applicable law, from and against all losses, claims, damages, liabilities, costs
(including, without limitation, costs of preparation and attorneys' fees) and
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expenses (as determined by a court of competent jurisdiction in a final judgment
not subject to appeal or review), as incurred, arising solely out of or based
solely upon any untrue statement or alleged untrue statement of a material fact
contained in the registration statement, any prospectus, or any form of
prospectus or form of prospectus or in any amendment or supplement thereto or in
any preliminary prospectus, or arising solely out of or based solely upon any
omission of a material fact required to be stated therein or necessary to make
the statements therein (in the case of any prospectus or supplement thereto, in
the light of the circumstances under which they were made) not misleading, to
the extent, but only to the extent, that such untrue statement or omission or
alleged untrue statement or omission is contained in any information so
furnished in writing by the Holder to the Company specifically for inclusion in
the registration statement or such prospectus and that such information was
reasonably relied upon by the Company for use in the registration statement,
such prospectus or such form of prospectus or to the extent that such
information relates to the Holder or the Holder's proposed method of
distribution of Warrant Shares and was reviewed and expressly approved in
writing by the Holder expressly for use in the registration statement, such
prospectus or such form of prospectus. In no event shall the liability of any
selling Holder hereunder be greater in amount than the dollar amount of the net
proceeds received by such Holder upon the sale of the Warrant Shares giving rise
to such indemnification obligation.
(e) ASSIGNMENT. The rights of the Holder hereunder, including
the right to have the Company register for resale the Warrant Shares in
accordance with the terms of this Agreement, shall be automatically assignable
by the Holder to any affiliate of the Holder or any other Holder or affiliate of
any other Holder of all or a portion of the Warrant Shares if: (i) the Holder
agrees in writing with the transferee or assignee to assign such rights, and a
copy of such agreement is furnished to the Company within a reasonable time
after such assignment, (ii) the Company is, within a reasonable time after such
transfer or assignment, furnished with written notice of (a) the name and
address of such transferee or assignee, and (b) the securities with respect to
which such registration rights are being transferred or assigned, (iii)
following such transfer or assignment the further disposition of such securities
by the transferee or assignees is restricted under the Securities Act and
applicable state securities laws, and (iv) at or before the time the Company
receives the written notice contemplated by clause (ii) of this Section, the
transferee or assignee agrees in writing with the Company to be bound by all of
the provisions of this Warrant. In addition, each Holder shall have the right to
assign its rights hereunder to any other person with the prior written consent
of the Company, which consent shall not be unreasonably withheld. The rights to
assignment shall apply to the Holders (and to subsequent) successors and
assigns.
14. NOTICES. Any and all notices or other communications or deliveries
hereunder (including, without limitation, any Exercise Notice) shall be in
writing and shall be deemed given and effective on the earliest of (i) the date
of transmission, if such notice or communication is delivered via facsimile at
the facsimile number specified in this Section prior to 5:00 p.m. (California
time) on a Trading Day, (ii) the next Trading Day after the date of
transmission, if such notice or communication is delivered via facsimile at the
facsimile number specified in this Section on a day that is not a Trading Day or
later than 5:00 p.m. (California time) on any Trading Day, (iii) the Trading Day
following the date of mailing, if sent by nationally recognized overnight
courier service, or (iv) upon actual receipt by the party to whom such notice is
required to be given. The addresses for such communications shall be: (i) if to
the Company, to Pacific Ethanol, Inc., Attn: President, or to Facsimile No.:
(000) 000-0000 (or such other address as the Company shall indicate in writing
in accordance with this Section), or (ii) if to the Holder, to the address or
facsimile number appearing on the Warrant Register or such other address or
facsimile number as the Holder may provide to the Company in accordance with
this Section.
15. WARRANT AGENT. The Company shall serve as warrant agent under this
Warrant. Upon ten (10) days' notice to the Holder, the Company may appoint a new
warrant agent. Any corporation into which the Company or any new warrant agent
may be merged or any corporation resulting from any consolidation to which the
Company or any new warrant agent shall be a party or any corporation to which
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the Company or any new warrant agent transfers substantially all of its
corporate trust or shareholders services business shall be a successor warrant
agent under this Warrant without any further act. Any such successor warrant
agent shall promptly cause notice of its succession as warrant agent to be
mailed (by first class mail, postage prepaid) to the Holder at the Holder's last
address as shown on the Warrant Register.
16. MISCELLANEOUS.
(a) This Warrant shall be binding on and inure to the benefit
of the parties hereto and their respective successors and assigns. Subject to
the preceding sentence, nothing in this Warrant shall be construed to give to
any Person other than the Company and the Holder any legal or equitable right,
remedy or cause of action under this Warrant. This Warrant may be amended only
in writing signed by the Company and the Holder and their successors and
assigns.
(b) All questions concerning the construction, validity,
enforcement and interpretation of this Warrant shall be governed by and
construed and enforced in accordance with the internal laws of the State of
California, without regard to the principles of conflicts of law thereof. Each
party agrees that all legal proceedings concerning the interpretations,
enforcement and defense of this Warrant and the transactions herein contemplated
("Proceedings") (whether brought against a party hereto or its respective
Affiliates, employees or agents) shall be commenced exclusively in the
California Courts. Each party hereto hereby irrevocably submits to the exclusive
jurisdiction of the California Courts for the adjudication of any dispute
hereunder or in connection herewith or with any transaction contemplated hereby
or discussed herein, and hereby irrevocably waives, and agrees not to assert in
any Proceeding, any claim that it is not personally subject to the jurisdiction
of any California Court, or that such Proceeding has been commenced in an
improper or inconvenient forum. Each party hereto hereby irrevocably waives
personal service of process and consents to process being served in any such
Proceeding by mailing a copy thereof via registered or certified mail or
overnight delivery (with evidence of delivery) to such party at the address in
effect for notices to it under this Warrant and agrees that such service shall
constitute good and sufficient service of process and notice thereof. Nothing
contained herein shall be deemed to limit in any way any right to serve process
in any manner permitted by law. Each party hereto hereby irrevocably waives, to
the fullest extent permitted by applicable law, any and all right to trial by
jury in any legal proceeding arising out of or relating to this Warrant or the
transactions contemplated hereby. If either party shall commence a Proceeding to
enforce any provisions of this Warrant, then the prevailing party in such
Proceeding shall be reimbursed by the other party for its attorney's fees and
other costs and expenses incurred with the investigation, preparation and
prosecution of such Proceeding.
(c) The headings herein are for convenience only, do not
constitute a part of this Warrant and shall not be deemed to limit or affect any
of the provisions hereof.
(d) In case any one or more of the provisions of this Warrant
shall be invalid or unenforceable in any respect, the validity and
enforceability of the remaining terms and provisions of this Warrant shall not
in any way be affected or impaired thereby and the parties will attempt in good
faith to agree upon a valid and enforceable provision which shall be a
commercially reasonable substitute therefor, and upon so agreeing, shall
incorporate such substitute provision in this Warrant.
(e) Prior to exercise of this Warrant, the Holder hereof shall
not, by reason of by being a Holder, be entitled to any rights of a shareholder
with respect to the Warrant Shares.
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IN WITNESS WHEREOF, the Company has caused this Warrant to be duly
executed by its authorized officer as of the date first indicated above.
PACIFIC ETHANOL, INC.
By: /S/ XXXX XXXXXX
------------------------------------
Xxxx Xxxxxx, Chief Operating Officer
The undersigned Holder hereby acknowledges and agrees that this Warrant
is being issued as a replacement warrant of that certain Nonstatutory Stock
Option Agreement issued on May 20, 2004 ("Stock Option"), which Stock Option is
hereby cancelled and of no effect.
/S/ XXXXXXX X. XXXXXXXXXX
-------------------------
XXXXXXX X. XXXXXXXXXX
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EXERCISE NOTICE
PACIFIC ETHANOL, INC.
WARRANT DATED MARCH 23, 2005
The undersigned Holder hereby irrevocably elects to purchase
_____________ shares of Common Stock pursuant to the above referenced Warrant.
Capitalized terms used herein and not otherwise defined have the respective
meanings set forth in the Warrant.
(1) The undersigned Holder hereby exercises its right to purchase
_________________ Warrant Shares pursuant to the Warrant.
(2) The Holder shall pay the sum of $____________ to the Company in accordance
with the terms of the Warrant. Payment shall take the form of (check applicable
box):
[ ] in lawful money of the United States; or
[ ] the cancellation of such number of Warrant Shares as
is necessary, in accordance with the formula set
forth in subsection 4(c), to exercise this Warrant
with respect to the maximum number of Warrant Shares
purchasable pursuant to the cashless exercise
procedure set forth in subsection 4(c).
(3) Pursuant to this Exercise Notice, the Company shall deliver to the holder
_______________ Warrant Shares in accordance with the terms of the Warrant.
(4) The undersigned represents that it has and will comply with the prospectus
delivery requirements of the Securities Act.
Dated:___________________, _______ Name of Holder:
(Print)____________________________________
By: _______________________________________
Name: _____________________________________
Title: ____________________________________
(Signature must conform in all respects to
name of holder as specified on the face of
the Warrant)
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WARRANT SHARES EXERCISE LOG
---------------------------
----------------------------- ----------------------------- ---------------------------------- ---------------------
Number of Warrant
Number of Warrant Shares Number of Warrant Shares Shares Remaining to
Date Available to be Exercised Exercised be Exercised
----------------------------- ----------------------------- ---------------------------------- ---------------------
----------------------------- ----------------------------- ---------------------------------- ---------------------
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PACIFIC ETHANOL, INC.
WARRANT ORIGINALLY ISSUED MARCH 23, 2005
WARRANT NO. _____
FORM OF ASSIGNMENT
[To be completed and signed only upon transfer of Warrant]
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ________________________________ the right represented by the
above-captioned Warrant to purchase ____________ shares of Common Stock to which
such Warrant relates and appoints ________________ attorney to transfer said
right on the books of the Company with full power of substitution in the
premises.
Dated: _______________, ____
___________________________________________
(Signature must conform in all respects to
name of holder as specified on the face of
the Warrant)
___________________________________________
Address of Transferee
___________________________________________
___________________________________________
In the presence of:
_____________________
_____________________
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