10-K/A 1 peix_10ka-123115.htm 10-K/A

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 10-K/A

(Mark One)

x | AMENDMENT NO. 1 TO ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the fiscal year ended December 31, 2015

OR

o | TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the transition period from to

Commission file number: 000-21467

PACIFIC ETHANOL, INC.

(Exact name of registrant as specified in its charter)

Delaware | 41-2170618
(State or other jurisdiction of incorporation or organization) | (I.R.S. Employer Identification No.)

400 Capitol Mall, Suite 2060, Sacramento, California | 95814
(Address of principal executive offices) | (Zip Code)

Registrant’s telephone number, including area code: (916) 403-2123

Securities registered pursuant to Section 12(b) of the Act:

Title of Class | Name of Exchange on Which Registered
Common Stock, $0.001 par value | The Nasdaq Stock Market LLC (Nasdaq Capital Market)

Securities registered pursuant to Section 12(g) of the Act: None

Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes ¨ No x

Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act. Yes ¨ No x

Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes x No ¨

Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Website, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files. Yes x No ¨

Indicate by check mark if disclosure of delinquent filers in response to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of registrant’s knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K. ¨

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, or a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):

Large accelerated filer ¨ | Accelerated filer x
Non-accelerated filer ¨ (Do not check if a smaller reporting company) | Smaller reporting company ¨

Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Act). Yes ¨ No x

The aggregate market value of the voting common equity held by nonaffiliates of the registrant computed by reference to the closing sale price of such stock, was approximately $247.2 million as of June 30, 2015, the last business day of the registrant’s most recently completed second fiscal quarter. The registrant had no non-voting common equity as of June 30, 2015.

As of March 14, 2016, there were 38,982,931 shares of the registrant’s common stock $0.001 par value per share, and 3,540,132 shares of the registrant’s non-voting common stock $0.001 par value per share, outstanding.

DOCUMENTS INCORPORATED BY REFERENCE: None.

EXPLANATORY NOTE

This Amendment No. 1 (this “Amendment No. 1”) on Form 10-K/A amends the Annual Report on Form 10-K of Pacific Ethanol, Inc. (“we,” “us,” or “our”) for the year ended December 31, 2015 filed with the Securities and Exchange Commission on March 15, 2016 (the “Original Report”).

The purpose of this Amendment No. 1 is solely to furnish the Interactive Data files as Exhibit 101, in accordance with Rule 405 of Regulation S-T, which were inadvertently excluded from the Original Report. No other changes are or have been made to the Original Report.

This Amendment No. 1 together with the Original Report constitutes our Annual Report on Form 10-K for the year ended December 31, 2015.

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PART IV

Item 15. Exhibits, Financial Statement Schedules.

(a)(1) Financial Statements

See Item 8 of the registrant’s Annual Report on Form 10-K filed with the Securities and Exchange Commission on March 15, 2016.

(a)(2) Financial Statement Schedules

None.

(a)(3) Exhibits

Reference is made to the exhibits listed on the Index to Exhibits.

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|  | Where Located
Exhibit Number | Description* | Form | File Number | Exhibit Number | Filing Date | Filed Herewith
2.1 | Form of Agreement for Purchase and Sale of Units in New PE Holdco LLC dated December 6, 2013 between the Registrant and each of CIFC Funding 2007-III Asset-V LLC and CIFC Funding 2007-IV Asset-IV LLC | 10-K | 000-21467 | 2.13 | 03/31/2014 |
2.2 | Agreement for Purchase and Sale of Units in New PE Holdco LLC dated December 10, 2013 between the Registrant and Armory Fund L.P. | 10-K | 000-21467 | 2.14 | 03/31/2014 |
2.3 | Form of Agreement for Purchase and Sale of Units in New PE Holdco LLC dated December 14, 2013 between the Registrant and each of Mariner Partners, L.P. and Dee River Holdings, Inc. | 10-K | 000-21467 | 2.15 | 03/31/2014 |
2.4 | Agreement and Plan of Merger dated as of December 30, 2014 by and among Pacific Ethanol, Inc., AVR Merger Sub, Inc. and Aventine Renewable Energy Holdings, Inc. | 8-K | 000-21467 | 2.1 | 12/31/2014 |
2.5 | Amendment No. 1 to Agreement and Plan of Merger dated as of March 31, 2015 by and among Pacific Ethanol, Inc., AVR Merger Sub, Inc. and Aventine Renewable Energy Holdings, Inc. | 8-K | 000-21467 | 2.1 | 04/02/2015 |
3.1 | Certificate of Incorporation | 10-Q | 000-21467 | 3.1 | 11/06/2015 |
3.2 | Certificate of Designations, Powers, Preferences and Rights of the Series A Cumulative Redeemable Convertible Preferred Stock | 10-Q | 000-21467 | 3.2 | 11/06/2015 |
3.3 | Certificate of Designations, Powers, Preferences and Rights of the Series B Cumulative Convertible Preferred Stock | 10-Q | 000-21467 | 3.3 | 11/06/2015 |
3.4 | Certificate of Amendment to Certificate of Incorporation dated June 3, 2010 | 10-Q | 000-21467 | 3.4 | 11/06/2015 |
3.5 | Certificate of Amendment to Certificate of Incorporation effective June 8, 2011 | 10-Q | 000-21467 | 3.5 | 11/06/2015 |
3.6 | Certificate of Amendment to Certificate of Incorporation effective May 14, 2013 | 10-Q | 000-21467 | 3.6 | 11/06/2015 |
3.7 | Certificate of Amendment to Certificate of Incorporation effective July 1, 2015 | 10-Q | 000-21467 | 3.7 | 11/06/2015 |
3.8 | Amended and Restated Bylaws | 10-Q | 000-21467 | 3.1 | 11/12/2014 |
10.1 | 2006 Stock Incentive Plan, as amended# | S-8 | 333-196876 | 4.1 | 06/18/2014 |
10.2 | Form of Employee Restricted Stock Agreement# | 8-K | 000-21467 | 10.2 | 10/10/2006 |

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|  | Where Located
Exhibit Number | Description* | Form | File Number | Exhibit Number | Filing Date | Filed Herewith
10.3 | Form of Non-Employee Director Restricted Stock Agreement# | 8-K | 000-21467 | 10.3 | 10/10/2006 |
10.4 | Amended and Restated Executive Employment Agreement dated December 11, 2007 between the Registrant and Neil M. Koehler# | 8-K | 000-21467 | 10.3 | 12/17/2007 |
10.5 | Amended and Restated Executive Employment Agreement dated December 11, 2007 between the Registrant and Christopher W. Wright# | 8-K | 000-21467 | 10.5 | 12/17/2007 |
10.6 | Amended and Restated Executive Employment Agreement dated November 25, 2009 between the Registrant and Bryon T. McGregor# | 8-K | 000-21467 | 10.1 | 11/27/2009 |
10.7 | Executive Employment Agreement dated January 6, 2013 between the Registrant and Michael D. Kandris# | 8-K | 000-21467 | 10.1 | 01/10/2013 |
10.8 | Amended and Restated Executive Employment Agreement dated October 1, 2012 between the Registrant and Paul P. Kohler# | 10-K | 000-21467 | 10.11 | 03/31/2014 |
10.9 | Employment Agreement dated November 12, 2012 between the Registrant and James R. Sneed# | 10-K | 000-21467 | 10.12 | 03/31/2014 |
10.10 | Pacific Ethanol, Inc. 2015 Short-Term Incentive Plan Description# | 10-K | 000-21467 | 10.10 | 03/15/2016 |
10.11 | Form of Indemnity Agreement between the Registrant and each of its Executive Officers and Directors# | 10-K | 000-21467 | 10.46 | 03/31/2010 |
10.12 | Warrant dated March 27, 2008 issued by the Registrant to Lyles United, LLC | 8-K | 000-21467 | 10.3 | 03/27/2008 |
10.13 | Registration Rights Agreement dated March 27, 2008 between the Registrant and Lyles United, LLC | 8-K | 000-21467 | 10.4 | 03/27/2008 |
10.14 | Letter Agreement dated March 27, 2008 between the Registrant and Lyles United, LLC | 8-K | 000-21467 | 10.5 | 03/27/2008 |
10.15 | Letter Agreement dated May 22, 2008 among the Registrant, Neil M. Koehler, Bill Jones, Paul P. Koehler and Thomas D. Koehler# | 8-K | 000-21467 | 10.3 | 05/23/2008 |
10.16 | Form of Warrant dated May 23, 2008 issued by the Registrant | 8-K | 000-21467 | 10.2 | 05/23/2008 |

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|  | Where Located
Exhibit Number | Description* | Form | File Number | Exhibit Number | Filing Date | Filed Herewith
10.17 | Amended and Restated Loan and Security Agreement dated May 4, 2012 among Kinergy Marketing LLC, Pacific Ag. Products, LLC, the parties thereto from time to time as Lenders, Wells Fargo Bank, National Association and Wells Fargo Capital Finance, LLC | 8-K | 000-21467 | 10.1 | 05/08/2012 |
10.18 | Amendment No. 1 to Amended and Restated Loan and Security Agreement dated December 4, 2013 among Kinergy Marketing LLC, Pacific Ag. Products, LLC and Wells Fargo Capital Finance, LLC | 8-K | 000-21467 | 10.3 | 07/06/2015 |
10.19 | Amendment No. 2 to Amended and Restated Loan and Security Agreement dated December 29, 2014 among Kinergy Marketing LLC, Pacific Ag. Products, LLC and Wells Fargo Capital Finance, LLC | 8-K | 000-21467 | 10.2 | 07/06/2015 |
10.20 | Amendment No. 3 to Amended and Restated Loan and Security Agreement dated July 1, 2015 among Kinergy Marketing LLC, Pacific Ag. Products, LLC and Wells Fargo Capital Finance, LLC | 8-K | 000-21467 | 10.1 | 07/06/2015 |
10.21 | Amendment No. 4 to Amended and Restated Loan and Security Agreement dated December 11, 2015 among Kinergy Marketing LLC, Pacific Ag. Products, LLC and Wells Fargo Capital Finance, LLC | 10-K | 000-21467 | 10.21 | 03/15/2016 |
10.22 | Amendment No. 5 to Amended and Restated Loan and Security Agreement dated December 28, 2015 among Kinergy Marketing LLC, Pacific Ag. Products, LLC and Wells Fargo Capital Finance, LLC | 10-K | 000-21467 | 10.22 | 03/15/2016 |
10.23 | Amended and Restated Guarantee dated May 4, 2012 by the Registrant in favor of Wells Fargo Capital Finance, LLC for and on behalf of Lenders | 8-K | 000-21467 | 10.2 | 05/08/2012 |
10.24 | Form of Warrants dated December 13, 2011 issued by the Registrant | 8-K/A | 000-21467 | 10.2 | 12/12/2011 |
10.25 | Form of Series I Warrants issued by the Registrant on July 3, 2012 | 8-K | 000-21467 | 10.1 | 06/28/2012 |

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|  | Where Located
Exhibit Number | Description* | Form | File Number | Exhibit Number | Filing Date | Filed Herewith
10.26 | Second Amended and Restated Credit Agreement dated October 29, 2012 among Pacific Ethanol Holding Co. LLC, Pacific Ethanol Madera LLC, Pacific Ethanol Columbia , LLC, Pacific Ethanol Stockton LLC, Pacific Ethanol Magic Valley, LLC, the Lenders referred to therein, Wells Fargo Bank, N.A. and Amarillo National Bank | 10-Q | 000-21467 | 10.6 | 11/14/2012 |
10.27 | First Amendment to Second Amended and Restated Credit Agreement dated January 4, 2013 among Pacific Ethanol Holding Co. LLC, Pacific Ethanol Madera LLC, Pacific Ethanol Columbia , LLC, Pacific Ethanol Stockton LLC, Pacific Ethanol Magic Valley, LLC, the Lenders referred to therein, Wells Fargo Bank, N.A. and the other parties identified therein | S-1 | 333-189713 | 10.44 | 06/28/2013 |
10.28 | Second Amendment to Second Amended and Restated Credit Agreement dated March 28, 2013 among Pacific Ethanol Holding Co. LLC, Pacific Ethanol Madera LLC, Pacific Ethanol Columbia , LLC, Pacific Ethanol Stockton LLC, Pacific Ethanol Magic Valley, LLC, the Lenders referred to therein, Wells Fargo Bank, N.A. and the other parties identified therein | 10-K | 000-21467 | 10.28 | 03/15/2016 |
10.29 | Third Amendment to Second Amended and Restated Credit Agreement dated April 1, 2014 among Pacific Ethanol Holding Co. LLC, Pacific Ethanol Madera LLC, Pacific Ethanol Columbia , LLC, Pacific Ethanol Stockton LLC, Pacific Ethanol Magic Valley, LLC, the Lenders referred to therein, Wells Fargo Bank, N.A. and the other parties identified therein | 8-K | 000-21467 | 10.2 | 04/01/2014 |
10.30 | Fourth Amendment to Second Amended and Restated Credit Agreement dated January 30, 2016 among Pacific Ethanol Holding Co. LLC, Pacific Ethanol Madera LLC, Pacific Ethanol Columbia , LLC, Pacific Ethanol Stockton LLC, Pacific Ethanol Magic Valley, LLC, PE Op Co., the Lenders referred to therein, Wells Fargo Bank, N.A. and the other parties identified therein | 10-K | 000-21467 | 10.30 | 03/15/2016 |

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|  | Where Located
Exhibit Number | Description* | Form | File Number | Exhibit Number | Filing Date | Filed Herewith
10.31 | Fifth Amendment to Second Amended and Restated Credit Agreement dated February 26, 2016 among Pacific Ethanol Holding Co. LLC, Pacific Ethanol Madera LLC, Pacific Ethanol Columbia , LLC, Pacific Ethanol Stockton LLC, Pacific Ethanol Magic Valley, LLC, PE Op Co., the Lenders referred to therein, Wells Fargo Bank, N.A. and the other parties identified therein | 10-K | 000-21467 | 10.31 | 03/15/2016 |
10.32 | Lender Assignment Agreement dated June 9, 2014 between Pacific Ethanol, Inc. and CWD OC 522 Master Fund, Ltd. | 8-K | 000-21467 | 10.1 | 06/10/2014 |
10.33 | Lender Assignment Agreement dated June 9, 2014 between Pacific Ethanol, Inc. and Candlewood Special Situations Master Fund, Ltd. | 8-K | 000-21467 | 10.2 | 06/10/2014 |
10.34 | Agreement for Purchase and Sale of Loans and Assignment of Commitment dated June 9, 2014 between Pacific Ethanol, Inc. and Candlewood Credit Value Master Fund II, L.P. | 8-K | 000-21467 | 10.3 | 06/10/2014 |
10.35 | Letter Agreement dated May 23, 2014 among the Registrant and the holders of the Registrant’s Series B Cumulative Convertible Preferred Stock | 8-K | 000-21467 | 10.1 | 05/28/2014 |
10.36 | Stockholders Agreement dated December 30, 2014 between Pacific Ethanol, Inc. and the parties identified therein | 8-K | 000-21467 | 10.1 | 12/31/2014 |
10.37 | Stockholders Agreement dated December 30, 2014 between Pacific Ethanol, Inc. and Credit Suisse Securities (USA) LLC | 8-K | 000-21467 | 10.2 | 12/31/2014 |
10.38 | Amended and Restated Senior Secured Term Loan Credit Agreement dated September 24, 2012 among Aventine Renewable Energy Holdings, Inc., the lenders from time to time party thereto, and Citibank, N.A. | S-4 | 333-201879 | 10.1 | 02/04/2015 |
10.39 | Incremental Amendment dated June 18, 2013 among Aventine Renewable Energy Holdings, Inc., the lenders identified therein, and Citibank, N.A. | S-4 | 333-201879 | 10.2 | 02/04/2015 |
10.40 | Loan and Security Agreement dated September 17, 2014 among Aventine Renewable Energy, Inc., the lenders from time to time party thereto, Midcap Financial, LLC and Alostar Bank of Commerce | S-4 | 333-201879 | 10.3 | 02/04/2015 |

| 8 |

|  | Where Located
Exhibit Number | Description* | Form | File Number | Exhibit Number | Filing Date | Filed Herewith
14.1 | Code of Ethics | 8-K | 000-21467 | 14.1 | 07/06/2015 |
21.1 | Subsidiaries of the Registrant | 10-K | 000-21467 | 21.1 | 03/15/2016 |
23.1 | Consent of Independent Registered Public Accounting Firm | 10-K | 000-21467 | 23.1 | 03/15/2016 |
23.2 | Consent of Independent Registered Public Accounting Firm | 10-K | 000-21467 | 23.2 | 03/15/2016 |
31.1 | Certification Required by Rule 13a-14(a) of the Securities Exchange Act of 1934, as amended, as Adopted Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 | 10-K | 000-21467 | 31.1 | 03/15/2016 |
31.2 | Certification Required by Rule 13a-14(a) of the Securities Exchange Act of 1934, as amended, as Adopted Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 | 10-K | 000-21467 | 31.2 | 03/15/2016 |
31.3 | Certification Required by Rule 13a-14(a) of the Securities Exchange Act of 1934, as amended, as Adopted Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 |  |  |  |  | X
31.4 | Certification Required by Rule 13a-14(a) of the Securities Exchange Act of 1934, as amended, as Adopted Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 |  |  |  |  | X
32.1 | Certification of Chief Executive Officer and Chief Financial Officer Pursuant to 18 U.S.C. Section 1350, as Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 | 10-K | 000-21467 | 32.1 | 03/15/2016 |
101.INS | XBRL Instance Document |  |  |  |  | X
101.SCH | XBRL Taxonomy Extension Schema |  |  |  |  | X
101.CAL | XBRL Taxonomy Extension Calculation Linkbase |  |  |  |  | X
101.DEF | XBRL Taxonomy Extension Definition Linkbase |  |  |  |  | X
101.LAB | XBRL Taxonomy Extension Label Linkbase |  |  |  |  | X
101.PRE | XBRL Taxonomy Extension Presentation Linkbase |  |  |  |  | X

_______________

(#) | A contract, compensatory plan or arrangement to which a director or executive officer is a party or in which one or more directors or executive officers are eligible to participate.
(*) | Certain of the agreements filed as exhibits 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.

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SIGNATURES

Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized on this 15th day of March, 2016.

PACIFIC ETHANOL, INC.
/s/ NEIL M. KOEHLER
Neil M. Koehler President and Chief Executive Officer

Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the Registrant and in the capacities and on the dates indicated.

Signature | Title | Date
/s/ WILLIAM L. JONES William L. Jones | Chairman of the Board and Director | March 15, 2016
/s/ NEIL M. KOEHLER Neil M. Koehler | President, Chief Executive Officer (Principal Executive Officer) and Director | March 15, 2016
/s/ BRYON T. MCGREGOR Bryon T. McGregor | Chief Financial Officer (Principal Financial and Accounting Officer) | March 15, 2016
/s/ MICHAEL D. KANDRIS Michael D. Kandris | Chief Operating Officer and Director | March 15, 2016
/s/ TERRY L. STONE Terry L. Stone | Director | March 15, 2016
/s/ JOHN L. PRINCE John L. Prince | Director | March 15, 2016
/s/ DOUGLAS L. KIETA Douglas L. Kieta | Director | March 15, 2016
/s/ LARRY D. LAYNE Larry D. Layne | Director | March 15, 2016

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EXHIBITS FILED WITH THIS REPORT

Exhibit Number | Description
31.3 | Certification Required by Rule 13a-14(a) of the Securities Exchange Act of 1934, as amended, as Adopted Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002
31.4 | Certification Required by Rule 13a-14(a) of the Securities Exchange Act of 1934, as amended, as Adopted Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002
101.INS | XBRL Instance Document
101.SCH | XBRL Taxonomy Extension Schema
101.CAL | XBRL Taxonomy Extension Calculation Linkbase
101.DEF | XBRL Taxonomy Extension Definition Linkbase
101.LAB | XBRL Taxonomy Extension Label Linkbase
101.PRE | XBRL Taxonomy Extension Presentation Linkbase

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