EXHIBIT 4.5
PACIFIC ETHANOL, INC.
0000 X. Xxxx Xxxxxx Xxxxxx, Xxxxxxxxxx 00000
WARRANT AGREEMENT
THIS WARRANT AGREEMENT (this "Agreement") is made and entered into on November
_____, 2004, to be effective September 12, 2003 by and between PACIFIC ETHANOL,
INC., a California corporation ("Company") and __________ ("Holder"). Company
and Holder are sometimes collectively referred to herein as the "Parties" or
singularly as a "Party."
R E C I T A L S
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A. Company proposes to issue to Holder _____ Thousand (________) warrants to
purchase shares of Company's Common Stock (the "Shares" or the "Common Stock")
(the "Warrants").
B. Each Warrant entitles the holder thereof to purchase one share of Common
Stock.
C. The Warrants will be issued by Company to Holder as part of the consideration
payable to Holder for services provided to Company pursuant to the terms of that
certain Finder's Fee Agreement executed by and between the Parties.
NOW, THEREFORE, in consideration of the promises and the mutual agreements
herein set forth, the Parties hereto agree as follows:
1. ISSUANCE OF WARRANTS. Pursuant to the terms and subject to the conditions of
this Agreement, Company hereby issues and grants the Warrants to Holder.
2. WARRANT CERTIFICATES. The warrant certificates evidencing the Warrants (the
"Warrant Certificates") shall be in the form set forth in Exhibit "A", attached
hereto and made a part hereof, with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Agreement.
3. RIGHT TO EXERCISE WARRANTS. Each Warrant may be exercised from the effective
date of this Agreement until 4:59 P.M. (Pacific Time) on the date that is nine
(9) years after the effective date of this Agreement (the "Expiration Date").
Each Warrant not exercised on or before the Expiration Date shall automatically
expire. Each Warrant shall entitle its holder to purchase from Company one share
of Common Stock (the "Exercise Shares") at an exercise price of One and 50/100
Dollars ($1.50) per Share, subject to adjustment as set forth below (the
"Exercise Price").
4. FRACTIONAL SHARES. Company shall not be required to issue fractional shares
of the Common Stock upon the exercise of the Warrants or to deliver Warrant
Certificates that evidence fractional shares of the Common Stock. In the event
that a fraction of an Exercise Share would, except for the provisions of this
Section 4, be issuable upon the exercise of the Warrants, Company shall pay to
Holder exercising the Warrants an amount in cash equal to such fraction
multiplied by the current market value of an Exercise Share. For purposes of
this Section 4, the current market value of an Exercise Share shall be
determined as follows:
(a) if the Exercise Shares are traded in the over-the-counter market
and not on any national securities exchange and not in the NASDAQ
Reporting System, the average of the mean between the last bid and
asked prices per share, as reported by the National Quotation Bureau,
Inc., or an equivalent generally accepted reporting service, for the
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last business day prior to the date on which the Warrant is exercised,
or, if not so reported, the average of the closing bid and asked prices
for an Exercise Share as furnished to Company by any member of the
National Association of Securities Dealers, Inc., selected by Company
for that purpose.
(b) if the Exercise Shares are listed or traded on a national
securities exchange or in the NASDAQ Reporting System, the closing
price on the principal national securities exchange on which they are
so listed or traded or in the NASDAQ Reporting System, as the case may
be, on the last business day prior to the date of the exercise of the
Warrants. The closing price referred to in this subsection (b) shall be
the last reported sales price or, in case no such reported sale takes
place on such day, the average of the reported closing bid and asked
prices, in either case on the national securities exchange on which the
Exercise Shares are then listed on in the NASDAQ Reporting System; or
(c) if no such closing price or closing bid and asked prices are
available, as determined in any reasonable manner as may be prescribed
by the Board of Directors of Company.
5. MUTILATED OR MISSING WARRANT CERTIFICATES. In case any of the Warrant
Certificates shall be mutilated, lost, stolen or destroyed prior to the
Expiration Date, Company shall issue and deliver, in exchange and substitution
for and upon cancellation of the mutilated Warrant Certificate, or in lieu of
and in substitution for the Warrant Certificate lost, stolen or destroyed, a new
Warrant Certificate representing equivalent rights and interests.
6. RESERVATION OF SHARES. Company will at all times reserve and keep available,
free from preemptive rights, out of the aggregate of its authorized but unissued
Shares for the purpose of enabling it to satisfy its obligation to issue Shares
upon exercise of the Warrants, the full number of Shares deliverable upon the
exercise of all outstanding Warrants. Company covenants that all Shares which
may be issued upon exercise of the Warrants will be validly issued, fully paid
and non-assessable outstanding Shares of Company.
7. RIGHTS OF HOLDER. Holder shall not, by virtue of anything contained in this
Agreement or otherwise, prior to exercise of the Warrants, be entitled to any
right whatsoever, either in law or equity, of a stockholder of Company,
including without limitation, the right to receive dividends or to vote or to
consent or to receive notice as a shareholder in respect of the meetings of
shareholders or the election of directors of Company of any other matter.
8. INVESTMENT INTENT. Holder represents and warrants to Company that Holder is
acquiring the Warrants for investment and with no present intention of
distributing or reselling any of the Warrants.
9. CERTIFICATES TO BEAR LANGUAGE. The Warrants and the certificate or
certificates therefor shall bear the following legend by which each holder shall
be bound:
"THE SECURITIES REPRESENTED BY THIS INSTRUMENT HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") OR ANY OTHER
APPLICABLE STATE SECURITIES LAWS, AND MAY NOT BE SOLD, PLEDGED OR
OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION THEREOF UNDER
THE ACT OR ANY OTHER APPLICABLE STATE SECURITIES LAWS, OR PURSUANT TO
RULE 144 OF THE ACT OR AN OPINION OF COUNSEL, REASONABLY SATISFACTORY
TO THE CORPORATION AND ITS COUNSEL, THAT SUCH REGISTRATION IS NOT
REQUIRED."
The Shares and the certificate or certificates evidencing any such Shares shall
bear the following legend:
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"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE "ACT") OR ANY OTHER
STATE SECURITIES LAWS. THE SHARES MAY NOT BE SOLD OR TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN OPINION OF COUNSEL, REASONABLY
SATISFACTORY TO THE CORPORATION AND ITS COUNSEL, THAT AN EXEMPTION FROM
REGISTRATION UNDER THE ACT OR APPLICABLE STATE SECURITIES LAWS IS
AVAILABLE."
Certificates for Warrants without such legend shall be issued if such Warrants
or Shares are sold pursuant to an effective registration statement under the
Securities Act of 1933 (the "Act") or if Company has received an opinion from
counsel reasonably satisfactory to counsel for Company, that such legend is no
longer required under the Act.
10. ADJUSTMENT OF NUMBER OF SHARES AND CLASS OF CAPITAL STOCK PURCHASABLE. The
number of Shares and class of capital stock purchasable under this Agreement are
subject to adjustment from time to time as set forth in this Section 10.
(a) ADJUSTMENT FOR CHANGE IN CAPITAL STOCK. If Company: (i) pays a
dividend or makes a distribution on its Common Stock, in each case, in
shares of its Common Stock; (ii) splits its outstanding shares of
Common Stock into a greater number of shares; (iii) combines its
outstanding shares of Common Stock into a smaller number of shares;
(iv) makes a distribution on its Common Stock in shares of its capital
stock other than Common Stock; or (v) issues by reclassification of its
shares of Common Stock any shares of its capital stock; then the number
and classes of shares purchasable upon exercise of each Warrant in
effect immediately prior to such action shall be adjusted so that the
holder of any Warrant thereafter exercised may receive the number and
classes of shares of capital stock of Company which such holder would
have owned immediately following such action if such holder had
exercised the Warrant immediately prior to such action. For a dividend
or distribution the adjustment shall become effective immediately after
the record date for the dividend or distribution. For a split,
combination or reclassification, the adjustment shall become effective
immediately after the effective date of the subdivision, combination or
reclassification. If after an adjustment the holder of a Warrant upon
exercise of it may receive shares of two or more classes of capital
stock of Company, the Board of Directors of Company shall in good faith
determine the allocation of the adjusted Exercise Price between or
among the classes of capital stock. After such allocation, that portion
of the Exercise Price applicable to each share of each such class of
capital stock shall thereafter be subject to adjustment on terms
comparable to those applicable to Common Stock in this Agreement.
Notwithstanding the allocation of the Exercise Price between or among
shares of capital stock as provided by this Section 10(a), a Warrant
may only be exercised in full by payment of the entire Exercise Price
currently in effect.
(b) CONSOLIDATION, MERGER OR SALE OF COMPANY. If Company is a party to
a consolidation, merger or transfer of assets which reclassifies or
changes its outstanding Common Stock, the successor corporation (or
corporation controlling the successor corporation or Company, as the
case may be) shall by operation of law assume Company's obligations
under this Agreement. Upon consummation of such transaction the
Warrants shall automatically become exercisable for the kind and amount
of securities, cash or other assets which the holder of a Warrant would
have owned immediately after the consolidation, merger or transfer if
the holder had exercised the Warrant immediately before the effective
date of such transaction. As a condition to the consummation of such
transaction, Company shall arrange for the person or entity obligated
to issue securities or deliver cash or other assets upon exercise of
the Warrant to, concurrently with the consummation of such transaction,
assume Company's obligations hereunder by executing an instrument so
providing and further providing for adjustments which shall be as
nearly equivalent as may be practical to the adjustments provided for
in this Section 10(b).
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11. SUCCESSORS. All the covenants and provisions of this Agreement by or for the
benefit of Company or Holder shall bind and inure to the benefit of their
respective successors and assigns hereunder.
12. COUNTERPARTS. This Agreement may be executed in any number of counterparts
and each of such counterparts shall for all proposes be deemed to be an
original, and such counterparts shall together constitute by one and the same
instrument.
13. NOTICES. All notices or other communications under this Agreement shall be
in writing and shall be deemed to have been given if delivered by hand or mailed
by certified mail, postage prepaid, return receipt requested, addressed as
follows: if to Company: Attention: Chief Operating Officer, and to Holder: at
the address of Holder appearing on the books of Company or Company's transfer
agent, if any. Either Company or Holder may from time to time change the address
to which notices to it are to be mailed hereunder by notice in accordance with
the provisions of this Section 13.
14. SUPPLEMENTS AND AMENDMENTS. Company may from time to time supplement or
amend this Agreement without the approval of any holders of the Warrants in
order to cure any ambiguity or to be correct or supplement any provision
contained herein which may be defective or inconsistent with any other
provision, or to make any other provisions in regard to matters or questions
herein arising hereunder which Company may deem necessary or desirable and which
shall not materially adversely affect the interest of the holder.
15. SEVERABILITY. If for any reason any provision, paragraph or term of this
Agreement is held to be invalid or unenforceable, all other valid provisions
herein shall remain in full force and effect and all terms, provisions and
paragraphs of this Agreement shall be deemed to be severable.
16. GOVERNING LAW AND VENUE. This Agreement shall be deemed to be a contract
made under the laws of the State of California and for all purposes shall be
governed and construed in accordance with the laws of said State. Any proceeding
arising under this Agreement shall be instituted in Fresno County, State of
California.
17. HEADINGS. Paragraphs and subparagraph headings, used herein are included
herein for convenience of reference only and shall not affect the construction
of this Agreement nor constitute a part of this Agreement for any other purpose.
18. ATTORNEYS' FEES. Should any action or proceeding be commenced between the
Parties concerning any provision of this Agreement, or the rights and duties of
any party in relation thereto, the prevailing Party shall be entitled, in
addition to such other relief as may be granted, to recover from the losing
Party all costs and expenses, including reasonable attorneys', paralegals', and
other professionals' fees and costs, incurred by such prevailing Party in such
action or proceeding and in any appeal thereof.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be duly
executed, as of the date and year first above written.
COMPANY HOLDER
PACIFIC ETHANOL, INC.,
a California Corporation
By: ____________________________________ By: ________________________________
Xxxx Xxxxxx, Chief Operating Officer Its:
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EXHIBIT "A"
WARRANT TO PURCHASE SHARES OF COMMON STOCK OF PACIFIC ETHANOL, INC.
THE SECURITIES REPRESENTED BY THIS INSTRUMENT HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") OR ANY OTHER APPLICABLE STATE
SECURITIES LAWS, AND MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHOUT
AN EFFECTIVE REGISTRATION THEREOF UNDER THE ACT OR ANY OTHER APPLICABLE STATE
SECURITIES LAWS, OR PURSUANT TO RULE 144 OF THE ACT OR AN OPINION OF COUNSEL,
REASONABLY SATISFACTORY TO THE CORPORATION AND ITS COUNSEL, THAT SUCH
REGISTRATION IS NOT REQUIRED.
Void after 4:59 P.M. September 12, 2012
Initial Number of Shares: __________________
Initial Exercise Price: $1.50 per share
Date of Grant: September 12, 2003
Expiration Date: September 12, 2012
THIS CERTIFIES THAT, for value received, ______________, or any person to whom
the interest in this Warrant is lawfully transferred ("Holder") is entitled to
purchase the above number (as adjusted pursuant to Section 4 hereof) of the
non-assessable shares of the Common Stock (the "Shares") of Pacific Ethanol,
Inc., a California corporation (the "Company") having an Initial Exercise Price
as set forth above, subject to the provisions and upon the terms and conditions
set forth herein. The exercise price, as adjusted from time-to-time as provided
herein, is referred to as the "Exercise Price."
1. TERM. The purchase right represented by this Warrant is exercisable, in whole
or in part, at any time commencing on the Date of Grant and ending on the
Expiration Date, after which time the Warrant shall be void.
2. METHOD OF EXERCISE; PAYMENT; ISSUANCE OF NEW WARRANT. Subject to Section 1
hereof, the right to purchase Shares represented by this Warrant may be
exercised by Holder, in whole or in part, for the total number of Shares
remaining available for exercise by the surrender of this Warrant (with the
Notice of Exercise and Investment Representation Statement forms attached hereto
as Exhibit "B" and Exhibit "C", respectively, duly executed by Holder) at the
principal office of the Company and by the payment to the Company, by check made
payable to the Company drawn on a United States bank and for United States
funds, or by delivery to the Company of evidence of cancellation of indebtedness
of the Company to such Holder, of an amount equal to the then applicable
Exercise Price per share multiplied by the number of Shares then being
purchased. In the event of any exercise of the purchase right represented by
this Warrant, certificates for the Shares so purchased shall be promptly
delivered to Holder and, unless this Warrant has been fully exercised or has
expired, a new Warrant representing the portion of the Shares, if any, with
respect to which this Warrant shall not then have been exercised shall also be
promptly delivered to Holder.
3. EXERCISE PRICE. The Exercise Price at which this Warrant may be exercised
shall be the Initial Exercise Price, as adjusted from time to time pursuant to
Section 4 hereof.
4. RECLASSIFICATION, REORGANIZATION, CONSOLIDATION OR MERGER. In the case of any
reclassification of the Common Stock of the Company, or any reorganization,
consolidation or merger of the Company with or into another corporation (other
than a merger or reorganization with respect to which the Company is the
continuing corporation and which does not result in any reclassification of the
Common Stock), the Company, or such successor corporation, as the case may be,
shall execute a new warrant, providing that the Holder shall have the right to
exercise such new warrant and upon such exercise to receive, in lieu of each
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share of Common Stock issuable upon exercise of this Warrant, the number and
kind of securities, money and property receivable upon such reclassification,
reorganization, consolidation or merger by a holder of shares of Common Stock of
the Company for each share of Common Stock. Such new warrant shall provide for
adjustments which shall be as nearly equivalent as may be practicable to the
adjustments provided for in this Section 4, including, without limitation,
adjustments to the Exercise Price and to the number of shares issuable upon
exercise of this Warrant. The provisions of this Section 4 shall similarly apply
to successive reclassifications, reorganizations, consolidations or mergers.
5. TRANSFERABILITY AND NON-NEGOTIABILITY OF WARRANT. This Warrant may not be
transferred or assigned in whole or in part without compliance with applicable
federal and state securities laws by the transferor and the transferee
(including, without limitation, the delivery of investment representation
letters and legal opinions reasonably satisfactory to the Company, if reasonably
requested by the Company). Subject to the provisions of this Section 5, title to
this Warrant may be transferred in the same manner as a negotiable instrument
transferable by endorsement and delivery.
6. MISCELLANEOUS. The Company covenants that it will at all times reserve and
keep available, solely for the purpose of issue upon the exercise hereof, a
sufficient number of shares of Common Stock to permit the exercise hereof in
full. Such shares, when issued in compliance with the provisions of this Warrant
and the Articles of Incorporation of the Company, as amended, will be duly
authorized, validly issued, fully paid and non-assessable. No Holder of this
Warrant, as such, shall, prior to the exercise of this Warrant, be entitled to
vote or receive dividends or be deemed to be a shareholder of the Company for
any purpose, nor shall anything contained in this Warrant be construed to confer
upon Holder, as such, any rights of a shareholder of the Company or any right to
vote, give or withhold consent to any corporate action, receive notice of
meetings, receive dividends or subscription rights, or otherwise. Upon receipt
of evidence reasonably satisfactory to the Company of the loss, theft,
destruction or mutilation of this Warrant and, in the case of any such loss,
theft or destruction, upon delivery of an indemnity agreement reasonably
satisfactory in form and amount to the Company or, in the case of any such
mutilation, upon surrender and cancellation of such Warrant, the Company at its
expense will execute and deliver, in lieu thereof, a new Warrant representing
equivalent rights and interests. No fractional shares shall be issued in
connection with any exercise hereunder, but in lieu of such fractional shares
the Company shall make a cash payment equal to such fraction multiplied by the
current market value of a Share, as defined in Section 6 of the Warrant
Agreement by and between the original Holder and the Company. The terms and
provisions of this Warrant shall inure to the benefit of, and be binding upon,
the Company and the Holder hereof and their respective successors and assigns.
This Warrant shall be governed by and construed under the laws of the State of
California. Should any litigation be commenced between the parties hereto
concerning this Warrant, the party prevailing in such litigation shall be
entitled, in addition to such other relief as may be granted, to recover from
the losing party a reasonable sum for its attorneys' fees and costs in such
litigation, or any other separate action brought for that purpose.
Holder: ________________________ PACIFIC ETHANOL, Inc., a
California corporation
By: ___________________________ By: ___________________________
Name: _________________________ Name: _________________________
Title: ________________________ Title: ________________________
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EXHIBIT B
NOTICE OF EXERCISE
TO: PACIFIC ETHANOL, INC.
FROM: ________________________________
1. The undersigned hereby elects to purchase ___________ shares of the Common
Stock of Pacific Ethanol, Inc. (the "Shares") pursuant to the terms of the
attached Warrant, and tenders herewith payment of the purchase price of the
Shares in full.
2. Please issue a certificate or certificates representing the Shares of the
Common Stock in the name of the undersigned or in such other name as is
specified below:
Name: ___________________________
Tax ID: ___________________________
Address: ___________________________
___________________________
3. The undersigned represents that the Shares are being acquired for the account
of the undersigned for investment and not with a view to, or for resale in
connection with, the distribution thereof and that the undersigned has no
present intention of distributing or reselling the Shares. In support thereof,
the undersigned has executed the Investment Representation Statement attached
hereto.
Signed: ________________________
Date: __________________________
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EXHIBIT C
INVESTMENT REPRESENTATION STATEMENT
PURCHASER: _________________________________
COMPANY: PACIFIC ETHANOL, INC.
SECURITY: COMMON STOCK
AMOUNT: _________________________________
DATE: _________________________________
In connection with the purchase of the above-listed Securities, I, the
Purchaser, represent to the Company the following:
(a) I am aware of the Company's business affairs and financial condition, and
have acquired sufficient information about the Company to reach an informed and
knowledgeable decision to acquire the Securities. I am purchasing these
Securities for my own account for investment purposes only and not with a view
to, or for the resale in connection with, any "distribution" thereof for
purposes of the Securities Act of 1933 ("Securities Act").
(b) I understand that the Securities have not been registered under the
Securities Act in reliance upon a specific exemption therefrom, which exemption
depends upon, among other things, the bona fide nature of my investment intent
as expressed herein.
(c) I further understand that the Securities must be held indefinitely unless
subsequently registered under the Securities Act or unless an exemption from
registration is otherwise available. In addition, I understand that the
certificate evidencing the Securities will be imprinted with a legend which
prohibits the transfer of the Securities unless they are registered or such
registration is not required as reflected in a written opinion of counsel for
the Purchaser in a form reasonably satisfactory to the Company or receipt of a
no-action letter from the Securities and Exchange Commission.
(d) I am aware of the provisions of Rule 144, promulgated under the Securities
Act, which, in substance, permits limited public resale of "restricted
securities" acquired, directly or indirectly, from the issuer thereof (or from
an affiliate of such issuer), in a non-public offering subject to the
satisfaction of certain conditions, if applicable, including, among other
things: the availability of certain public information about the Company; the
resale occurring not less than one year after the party has purchased and paid
for the securities to be sold; the sale being made through a broker in an
unsolicited "broker's transaction" or in transactions directly with a market
maker (as said term is defined under the Securities Exchange Act of 1934); and
the amount of securities being sold during any three month period not exceeding
the specified limitations stated therein.
(e) I further understand that at the time I wish to sell the Securities there
may be no public market upon which to make such a sale, and that, even if such a
public market then exists, the Company may not be satisfying the current public
information requirements of Rule 144, and that, in such event, I may be
precluded from selling the Securities under Rule 144 even if the one-year
minimum holding period had been satisfied.
(f) I further understand that in the event all of the requirements of Rule 144
are not satisfied, registration under the Securities Act, compliance with
Regulation A, or some other registration exemption will be required; and that,
notwithstanding the fact that Rule 144 is not exclusive, the Staff of the SEC
has expressed its opinion that persons proposing to sell private placement
securities other than in a registered offering and otherwise than pursuant to
Rule 144 will have a substantial burden of proof in establishing that an
exemption from registration is available for such offers or sales, and that such
persons and their respective brokers who participate in such transactions do so
at their own risk.
Date: ____________________________ ____________________________
Purchaser
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