EXHIBIT 9.1
VOTING AGREEMENT
(PACIFIC ETHANOL, INC.)
THIS VOTING AGREEMENT ("Agreement") is made and entered into effective as
of October 27th, 2003 (the "Effective Date"), by and among (i) SOUTHERN COUNTIES
OIL CO., a California. Limited Partnership ("SCOC"), (ii) XXXXXXX X. XXXXX and
XXXXXXX XXXXX, husband and wife ("Xxxxx"), (iii) XXXX X. XXXXXX and XXXXX
XXXXXX, husband and wife ("Xxxxxx"), and XXXXXX XXXXX, a single woman ("Xxxxxx"
and together with Xxxxx and Xxxxxx, the "Shareholders"). SCOC and the
Shareholders are sometimes collectively referred to herein as the "Parties" or
singularly as a "Party."
RECITALS:.
1. Immediately prior to the Effective Date, Xxxxx owned six million
(6,000,000) shares of the issued and authorized common stock of Pacific Ethanol,
Inc, (the "Corporation"), Xxxxxx and Xxxxxx each owned one million five hundred
thousand shares (1,500,000) of the issued and authorized common stock of the
Corporation, and SCOC owned no shares of the issued and authorized common stock
of the Corporation.
2. Pursuant to the terms of that certain Stock Purchase Agreement. dated
October 27, 2003 (the "Stock Purchase Agreement"), by and, among (i) SCOC as
buyer, and (ii) the Shareholders, as sellers, SCOC purchased one million two
hundred thousand (1,200,000) shares of the issued and authorized common stock of
the Corporation from Xxxxx, one hundred fifty thousand (150,000) shares of the
issued and authorized common stock of the Corporation from Xxxxxx, and one
hundred fifty thousand (150,000) shares of the issued and authorized. common
stock of the Corporation from Xxxxxx.
3. As of the Effective Date, Xxxxx owns four million eight hundred thousand
(4,800,000) shares of the issued and authorized common stock of the Corporation
(the "Xxxxx Shares"), Xxxxxx owns one million three hundred fifty thousand
(1,350,000) shares of the issued and authorized common stock of the Corporation
(the "Xxxxxx Shares"), Xxxxxx owns one million three hundred fifty thousand
(1,350,000) shares of the issued and authorized common stock of the Corporation
(the "Xxxxxx Shares" and together with the Xxxxx Shares. and the Xxxxxx Shares,
the "Shareholders' Shares), and SCOC owns one million five hundred thousand
(1,500,000) shares of the issued and authorized common stock of the Corporation
(the "SCOC Shares").
4. Pursuant to the terms of the Stock Purchase Agreement, and as a
condition precedent to SCOC's purchase of the SCOC Shares, the Shareholders
agreed to subject a certain number of the Shareholders' Shares to the terms of a
written agreement with SCOC whereby SCOC's principal, XXXXX X. XXXXXXX
("Greinke"), could be assured that those shares would be voted in favor of
Greinke being elected to the Board of Directors of the Corporation until certain
specified conditions were met.
5. As of the Effective Date; the Corporation has issued no more than
sixteen million (16,000,000) shares of its authorized common stock (the "Issued
Shares"). Further, as of the Effective Date, the Bylaws of the Corporation
provide for a five (5) member Board of Directors and, in accordance with Section
708(a) of the California Corporations Code, authorize cumulative voting by the
shareholders of the Corporation;
6. Based on both the number of the Issued Shares and the size of the
Corporation's Board of Directors, a candidate for the Board of Directors of the
Corporation need only have three million two hundred thousand one (3,200,001)
shares of the outstanding common stock of the Corporation cumulatively voted in
his or her favor to ensure that candidate's election to the Board of Directors
of the Corporation.
7. The Parties now desire to memorialize their understanding with respect
to the Shareholders' obligation to cumulatively vote a portion of the
Shareholders' Shares in favor of Greinke being elected to the Board of Directors
of the Corporation, pursuant to the terms and subject to the conditions set
forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual undertakings set forth
herein, the Parties hereby agree as follows:
1. DESIGNATION OF THE ALLOCATED SHARES. Until such time as this
Agreement is terminated in accordance with the provisions of Section 7, the
Parties hereby agree that the Shareholders shall be obligated to vote no less
than one million seven hundred thousand one (1,700,001) shares of the
Shareholders' Shares (the "Allocated Shares") on a cumulative basis in favor of
Greinke's candidacy as a member of the Board of Directors of the Corporation.
The Parties agree that the stock certificate(s) representing the Allocated
Shares shall not bear any legend referring to this Agreement; provided, however,
that a duplicate copy of this Agreement is filed with the Secretary of the
Corporation and this Agreement is agreed to and acknowledged by the Corporation
as provided below.
2. RESTRICTIONS ON TRANSFER. To accomplish the purposes of this
Agreement, until such time as this Agreement is terminated in accordance with
the provisions of Section 7, the Shareholders shall not transfer, sell, assign,
hypothecate, encumber, or alienate the Allocated Shares, without the express
written consent. of SCOC, which consent shall not be unreasonably withheld or
delayed; provided, SCOC may condition such consent on the transferor executing a
written acceptance of the terms and conditions of this Agreement.
Notwithstanding the foregoing, the Allocated Shares may be transferred at any
time among or between the Shareholders and/or trusts for the exclusive benefit
of the Shareholders; provided, prior to such transfer, such permitted
transferees' execute a written acceptance in a form reasonably satisfactory to
SCOC of all of the terms and conditions of this Agreement. A duplicate copy of
any such written acceptance shall be filed with the Secretary of the
Corporation.
3. VOTING OF ALLOCATED SHARES. Until such time as this Agreement is
terminated in accordance with the provisions Section 7, the Shareholders shall
have the exclusive right to vote the Allocated Shares or give written consent,
in person or by proxy, at all meetings of the shareholders of the Corporation,
and in all proceedings in which the vote or written consent of shareholders may
be required or authorized by law. Notwithstanding the foregoing, until such time
as this Agreement is terminated in accordance with the provisions of Section 7,
the Shareholders shall be required to vote the Allocated Shares on a cumulative
basis in favor of Greinke being elected to the Corporation's Board of Directors.
Except as is otherwise specifically set forth above, the Shareholders shall have
the exclusive right to vote the Allocated Shares or give written consent, in
person or by proxy, on all other matters that the shareholders of the
Corporation are required to vote.
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4. SHAREHOLDER'S RIGHTS. Except as otherwise specifically provided in
this Agreement, including, but not limited to, the restrictions on transfer
provided in Section 2 of this Agreement, the Shareholders shall have all the
rights, powers, and privileges of a shareholder of the Corporation that would
otherwise be available to the holder of the Allocated Shares. The Shareholders
shall possess and in their discretion shall be entitled to exercise in person or
by nominee, agent, attorney in fact, or proxy, all rights and powers of an
absolute owner and holder of the Allocated Shares, including the right to vote,
assent, or consent with respect thereto and to take part in and consent to any
corporate or shareholders' action of any kind whatsoever, and to receive
distributions with respect to those shares. The right of the Shareholders to
vote, assent, or consent shall include, without limitation, the right to vote in
favor of or in opposition to any dissolution or proposed dissolution,
liquidation, or reorganization of the Corporation, or a sale of all or
substantially all of its assets, or the issuance or creation of additional
classes of securities, or any action of any character whatsoever which may be
presented at any meeting or require the consent of shareholders of the
Corporation.
5. DIVIDENDS. Throughout the term of this Agreement, the Shareholders
shall be entitled to receive any cash or stock dividends declared by the
Corporation in connection with the Allocated Shares.
6. CHANGE IN CIRCUMSTANCES. If at any time during the term of this
Agreement, either the number of members of the Board of Directors of the
Corporation is decreased or the number of outstanding shares of the common stock
of the Corporation exceeds sixteen million (16,000,000) shares, then the Parties
agree that the number of the Allocated Shares shall be increased accordingly to
ensure that the Allocated Shares, when voted on a cumulative basis together with
the SCOC Shares, are sufficient to elect Greinke to the Board of Directors of
the Corporation.
7. EXPIRATION OR TERMINATION OF AGREEMENT. This Agreement will expire
ten (10) years after the Effective Date, without notice by or to, or action on
the part of, the Parties. In addition, this Agreement shall be terminated at an
earlier date upon the occurrence of any one of the following events:
(a) Greinke's death or permanent incapacity;
(b) A court determination that Greinke is incompetent;
(c) The mutual written consent of the Parties;
(d) SCOC sells or otherwise assigns any of the SCOC Shares to
someone other than Greinke's spouse, a direct descendent of
Greinke or his spouse, or a trust held for the exclusive
benefit of Greinke, his spouse and/or his direct
descendents; or
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(e) The Corporation elects to convert its outstanding Series A
Cumulative Convertible Redeemable Preferred Stock to common
stock of the Corporation.
8. MERGER OR CONSOLIDATION,. If the Corporation is merged into or
consolidated with another corporation, or all or substantially all of the assets
of the Corporation are transferred to another corporation, then the term
"Corporation" will be construed to include the successor corporation; and the
Parties hereby agree that any shares of the successor corporation received by
the Shareholders as a result of the Shareholders' ownership of the Allocated
Shares shall be subject to the-same obligations as the Allocated Shares were
subject to under this Agreement before the merger, consolidation, or transfer.
9. RELATIONSHIP OF PARTIES. This Agreement is not intended to create
and shall not be deemed to create, a general partnership, limited partnership,
joint venture, corporation, or joint stock company or association. The rights of
the Parties shall be limited to those conferred upon them by this Agreement.
10. REMEDIES. The Parties shall have all the remedies available to
them for breach of this Agreement by law or in equity. The Parties further agree
that in addition to all other remedies available at law or in equity, the
Parties shall be entitled to specific performance of the obligations of each
Party to this Agreement and immediate injunctive relief. The Parties also agree
and that if an action is brought in equity to enforce a Party's obligations, the
other Party will argue, as a defense, that there is an adequate remedy at law.
11. COSTS AND EXPENSES. Each Party shall pay his own attorneys' fees
and other costs in negotiating and preparing this Agreement.
12. TIME. Time is of the essence of this Agreement and all of its
provisions.
13. EFFECT OF HEADINGS. The subject headings of the sections and
subsections of this Agreement are included for purposes of convenience only and
shall not affect the construction or interpretation of any of its provisions.
14. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the Parties pertaining to the voting of the Allocated Shares, and
supersedes all prior and contemporaneous agreements, representations, and
understandings of the Parties with regard thereto. No supplement, modification
or amendment of this Agreement shall be binding unless executed in writing by
all of the Parties to this Agreement.
15. WAIVER. A waiver of any breach of this Agreement by any Party to
this Agreement shall not constitute a continuing waiver, or a waiver of any
subsequent breach of the same, or any breach of another, provision of this
Agreement.
16. COUNTERPARTS. This Agreement may be executed in any number of
counterparts and each such counterpart shall be deemed to be an original
instrument, all of which together shall constitute one and the same instrument.
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17. ASSIGNMENT. Neither Party shall assign all or any part of this
Agreement, or any interest therein, or delegate all or any, part of its
obligations under this Agreement, without the prior written consent of the other
Party.
18. BINDING EFFECT. Subject to the provisions of Section 17 of this
Agreement, this Agreement shall be binding upon and inure to the benefit of the
successors and permitted assigns of the Parties to this Agreement.
19. SURVIVAL OF AGREEMENT. The provisions of this Agreement, and the
covenants and conditions contained in this Agreement, shall be continuous and
shall survive the execution of this Agreement.
20. PROFESSIONALS' FEES. If any suit, action or proceeding of any kind
(an "Action") is brought by either Party to this Agreement to enforce, defend or
interpret any provision of this Agreement (including, without limitation, an
Action for declaratory relief or any proceeding in the Bankruptcy Court. in
which any Party to this Agreement is a debtor), the prevailing Party in such
Action shall recover from the other Party to such Action all reasonable costs
and expenses which the prevailing Party may incur in bringing such Action
(including, without limitation, any bankruptcy proceeding involving issues
peculiar to bankruptcy law in which any Party to this Agreement takes any legal
action to protect or enforce his rights) and/or enforcing any judgment granted
therein, all of which shall be deemed to have accrued upon the commencement of
such Action and shall be paid whether or not such Action is prosecuted to
judgment. For purposes of this Section 20, the "prevailing Party" means the
Party entitled to recover costs of suit, whether or not any Action proceeds .to
final judgment. Any judgment or order entered in such Action shall specifically
provide for the recovery of all reasonable costs and expenses incurred by the
prevailing Party in connection therewith, including, without limitation, costs
and expenses incurred in enforcing such judgment. For purposes of this Section
20, "costs and expenses" shall include all court costs and all attorneys',
paralegals', and other professionals' fees and costs.
21. NOTICES. All notices and other communications required under this
Agreement shall be in writing and shall be deemed to have been duly given (i) on
the date of service, if served personally on the Party to whom notice is to be
given, (ii) on the date of receipt, if sent by facsimile to the Party to whom
notice is to be given at the facsimile number set forth below, or (iii) on the
third day after mailing, if mailed to the Party to whom notice is to be given by
first-class mail, registered or certified, postage prepaid, and property
addressed as follows:
To SCOC at: Southern Counties Oil Co.
P.O. Box 4159
0000 Xxxx Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000-0000
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With a copy to: Xxxxxx X. Xxxxxx, Esq.
Southern Counties Oil Co.
P.O. Box 4159
0000 Xxxx Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000-0000
To Shareholders at: Xxxxxxx and Xxxxxxx Xxxxx
0000 X. Xxxxxxxx Xxxx
Xxxxxx, Xxxxxxxxxx 00000
Xxxx and Xxxxx Xxxxxx
0000 Xxxx Xxxxxxxxx
Xxxxxx, Xxxxxxxxxx 00000
Xxxxxx Xxxxx
0 0xx Xxxxxx, XX, Xxx. 0
Xxxxxxxxxx, X.X. 00000-0000
With a copy to: Xxxx X. Xxxxxxxx, Esq.
Xxxxx, Xxxxxx & Xxxxxx
0000 X. Xxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
A Party or other designated recipient may change its address and/or facsimile
number by notifying the Parties and other designated-recipients of its new
address and/or facsimile number in accordance with the procedures set forth in
this Section 21.
22. GOVERNING LAW AND VENUE. This Agreement shall be governed by and
construed in accordance with the laws of the State of California. The Parties to
this Agreement agree that venue for any litigation arising under this Agreement
shall be in the County of Fresno, State of California, if instituted in the
State courts, or the Eastern District of California (Fresno), if instituted in
the Federal courts.
23. FURTHER ACTION. Each of the Parties to this Agreement shall
perform all further acts, and shall execute, acknowledge, and deliver any other
documents, which maybe reasonably necessary, appropriate or desirable to carry
out the provisions of this Agreement.
24. CONSTRUCTION. All words used in this Agreement, shall be construed
to include the plural as well as the singular number, and vice versa; words used
in this Agreement in the present tense shall include the future as well as the
present; and words used in this Agreement in the masculine gender shall include
the feminine-and neuter genders, whenever the context so requires.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the day
and year first written above.
(Signatures appear on following page.)
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"XXXXX"
/s/ Xxxxxxx Xxxxx
-------------------------------------------
XXXXXXX XXXXX
/s/ Xxxxxxx Xxxxx
-------------------------------------------
XXXXXXX XXXXX
"XXXXXX"
/s/ Xxxx X. Xxxxxx
-------------------------------------------
XXXX X. XXXXXX
/s/ Xxxxx Xxxxxx
-------------------------------------------
XXXXX XXXXXX
"XXXXXX"
/s/ Xxxxxx Xxxxx
-------------------------------------------
XXXXXX XXXXX
"SCOC"
SOUTHERN COUNTIES OIL CO.,
A CALIFORNIA LIMITED PARTNERSHIP
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------------
Name: XXXXX X. XXXXXXX
Title: Chief Executive Officer of
General Partner
(Signatures continue on following page.)
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AGREED TO AND ACKNOWLEDGED:
PACIFIC ETHANOL, INC.,
a California corporation
By: /s/ Xxxx Xxxxxx
---------------------------------------
Name: Xxxx Xxxxxx
Title: Chief Operating Officer
Date: October 27, 2003
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