0001019687-05-000941.txt : 20120618
0001019687-05-000941.hdr.sgml : 20120618
20050404093029
ACCESSION NUMBER: 0001019687-05-000941
CONFORMED SUBMISSION TYPE: SC 13D
PUBLIC DOCUMENT COUNT: 2
FILED AS OF DATE: 20050404
DATE AS OF CHANGE: 20050404
SUBJECT COMPANY:
COMPANY DATA:
COMPANY CONFORMED NAME: Pacific Ethanol, Inc.
CENTRAL INDEX KEY: 0000778164
STANDARD INDUSTRIAL CLASSIFICATION: INDUSTRIAL ORGANIC CHEMICALS [2860]
IRS NUMBER: 412170618
STATE OF INCORPORATION: DE
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: SC 13D
SEC ACT: 1934 Act
SEC FILE NUMBER: 005-51517
FILM NUMBER: 05727704
BUSINESS ADDRESS:
STREET 1: 5711 N. WEST AVENUE
CITY: FRESNO
STATE: CA
ZIP: 93711
BUSINESS PHONE: 559-435-1771
MAIL ADDRESS:
STREET 1: 5711 N. WEST AVENUE
CITY: FRESNO
STATE: CA
ZIP: 93711
FORMER COMPANY:
FORMER CONFORMED NAME: ACCESSITY CORP
DATE OF NAME CHANGE: 20030627
FORMER COMPANY:
FORMER CONFORMED NAME: DRIVERSSHIELD COM CORP
DATE OF NAME CHANGE: 20001115
FORMER COMPANY:
FORMER CONFORMED NAME: FIRST PRIORITY GROUP INC
DATE OF NAME CHANGE: 19920703
FILED BY:
COMPANY DATA:
COMPANY CONFORMED NAME: Jones William L
CENTRAL INDEX KEY: 0001321936
FILING VALUES:
FORM TYPE: SC 13D
BUSINESS ADDRESS:
BUSINESS PHONE: 559-435-1771
MAIL ADDRESS:
STREET 1: 5711 N. WEST AVENUE
CITY: FRESNO
STATE: CA
ZIP: 93711
SC 13D
1
jones_13d-032305.txt
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
(RULE 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS
FILED PURSUANT TO RULE 13d-1(a) AND AMENDMENTS
THERETO FILED PURSUANT TO RULE 13-2(a)
(AMENDMENT NO. _____)*
Pacific Ethanol, Inc.
--------------------------------------------------------------------------------
(Name of Issuer)
Common Stock, $.001 par value per share
--------------------------------------------------------------------------------
(Title of Class of Securities)
69423U 10 7
(CUSIP Number)
Ryan Turner, Chief Operating Officer, 5711 N. West Avenue, Fresno, CA 93711,
(559) 435-1771
--------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
March 23, 2005
--------------------------------------------------------------------------------
(Date of Event Which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition that is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following
box.
| |
NOTE: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See Rule 13d-7 for other parties
to whom copies are to be sent.
(continued on following pages)
(Page 1 of 7 Pages)
---------------
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 or otherwise subject to the liabilities of that section of the Act but
shall be subject to all other provisions of the Act (however, see the Notes).
CUSIP No. 69423U 10 7 SCHEDULE 13D Page 2 of 7
Exhibit A
--------------------------------------------------------------------------------
1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS (ENTITIES ONLY)
WILLIAM L. JONES
--------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) | |
(b) | |
--------------------------------------------------------------------------------
3 SEC USE ONLY
--------------------------------------------------------------------------------
4 SOURCE OF FUNDS
OO
--------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) OR 2(e) | |
--------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
UNITED STATES
--------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES 2,500,000
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
--------------------------------------------------------------------------------
8 SHARED VOTING POWER
0
--------------------------------------------------------------------------------
9 SOLE DISPOSITIVE POWER
2,500,000
--------------------------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
--------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,500,000
--------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES | |
--------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
9.0% (1)
--------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
IN
--------------------------------------------------------------------------------
(1) The number of outstanding shares for purposes of this
calculation consists of 27,721,985 shares outstanding as of
March 23, 2005.
CUSIP No. 69423U 10 7 SCHEDULE 13D Page 3 of 7
ITEM 1. SECURITY AND ISSUER.
The securities that are the subject of this statement consist of common
stock, $.001 par value per share, of Pacific Ethanol, Inc., a Delaware
corporation formerly known as Accessity Corp. (the "Issuer"). The names and the
address of the principal executive officers of the Issuer are as follows:
Principal Executive Officers: Neil M. Koehler,
Chief Executive Officer and President
Ryan Turner,
Chief Operating Officer and Secretary
Maria Tharpe, Chief Financial Officer
Address: Pacific Ethanol, Inc.
5711 N. West Avenue
Fresno, CA 93711
ITEM 2. IDENTITY AND BACKGROUND.
(a) William L. Jones, an individual (referred to herein as the
"Reporting Person").
(b) The business address for the Reporting Person is:
Pacific Ethanol, Inc.
5711 N. West Avenue
Fresno, CA 93711
(c) The principal occupation of the Reporting Person is as the Chairman
of the Issuer. The Issuer's address is given in subsection (b) above.
(d) - (e) During the last five years the Reporting Person has not, (i)
been convicted in a criminal proceeding (excluding traffic violations or similar
misdemeanors); or (ii) been a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction where as a result of such
proceeding was or is subject to a judgment, decree or final order enjoining
future violations of, or prohibiting or mandating activities subject to, federal
or state securities laws or finding any violation with respect to such laws.
(f) The Reporting Person is a citizen of the United States.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
As described in Item 4 below, the Reporting Person acquired its shares
of common stock of the Issuer by way of a share exchange transaction, with the
consideration for the Reporting Person's acquisition of shares of Issuer common
stock being the Reporting Person's shares of common stock of Pacific Ethanol,
Inc., a California corporation ("PEI California"). The disclosures set forth in
Item 4 are incorporated herein by reference.
ITEM 4. PURPOSE OF TRANSACTION.
On March 23, 2005, the Issuer completed a share exchange transaction
(the "Share Exchange Transaction") with the shareholders of PEI California and
the holders of the membership interests of each of Kinergy Marketing, LLC, an
Oregon limited liability company ("Kinergy"), and ReEnergy, LLC, a California
limited liability company ("ReEnergy"), pursuant to which the Issuer acquired
all of the issued and outstanding capital stock of PEI California and all of the
outstanding membership interests of Kinergy and ReEnergy.
CUSIP No. 69423U 10 7 SCHEDULE 13D Page 4 of 7
The Issuer's predecessor, Accessity Corp., a New York corporation,
entered into a 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 with PEI California, Kinergy, ReEnergy and the holders of the capital stock
and membership interests thereof.
Prior to the consummation of the Share Exchange Transaction, Accessity
reincorporated in the State of Delaware under the name "Pacific Ethanol, Inc"
through a merger of Accessity with and into its then-wholly-owned Delaware
subsidiary named Pacific Ethanol, Inc., which was formed for the purpose of
effecting the reincorporation (the "Reincorporation Merger"). In connection with
the Reincorporation Merger, the shareholders of Accessity became stockholders of
the Issuer and the Issuer succeeded to the rights, properties and assets and
assumed the liabilities of Accessity. Also in connection with the
Reincorporation Merger, the former shareholders of Accessity became the
shareholders of the Issuer and holders of options and warrants to acquire shares
common stock of Accessity became holders of options and warrants of the Issuer.
In the Share Exchange Transaction, PEI California shareholders received
one share of the Issuer's common stock for each share of PEI California common
stock they owned, the sole limited liability company member of Kinergy received
38,750 shares of the Issuer's common stock for each one percent of outstanding
limited liability company interest he owned, and the limited liability company
members of ReEnergy received 1,250 shares of the Issuer's common stock for each
one percent of outstanding limited liability company interest they owned. In
addition, holders of options and warrants to acquire shares of common stock of
PEI California became holders of warrants to acquire an equal number of shares
of the Issuer's common stock.
Except as described in Item 4, the Reporting Person does not have any
plans or proposals that relate to or would result in: (i) the acquisition of
additional securities of the Issuer, or the disposition of securities of the
Issuer; (ii) any extraordinary corporate transaction; (iii) any sale or transfer
of a material amount of assets of the Issuer or any of its subsidiaries; (iv)
any change in the present board of directors or management of the Issuer; (v)
any material change in the present capitalization or dividend policy of the
Issuer; (vi) any other material change in the Issuer's business or corporate
structure; (vii) any changes in the Issuer's charter, bylaws or instruments
corresponding thereto, or other actions which may impede the acquisition of
control of the Issuer by any person; (viii) causing a class of securities of the
Issuer to be delisted from a national securities exchange or to cease to be
authorized to be quoted in an inter-dealer quotation system of a registered
national securities association; (ix) a class of equity securities of the Issuer
becoming eligible for termination of registration pursuant to Section 12(g)(4)
of the Securities Exchange Act of 1934; or (x) any action similar to any of
those enumerated above.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
(a) The Reporting Person beneficially owns 2,500,000 shares of common
stock of the Issuer, which equals approximately 9.0% of the outstanding shares
of common stock of the Issuer as of March 23, 2005.
(b) The Reporting Person has sole voting and dispositive power as to
2,500,000 shares.
(c) Other than as described above in Item 4, the Reporting Person has
not effected any transactions in the Issuer's common stock during the past 60
days.
CUSIP No. 69423U 10 7 SCHEDULE 13D Page 5 of 7
(d) Not applicable.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS
WITH RESPECT TO SECURITIES OF THE ISSUER.
The Reporting Person is a party to that certain Voting Agreement (the
"Voting Agreement") dated October 27, 2003 by and among Southern Counties Oil
Co., a California limited partnership ("SCOC"), and the Reporting Person and
Maurine Jones, husband and wife, Ryan Turner and Wendy Turner, husband and wife,
and Andrea Jones, an individual, each of whom is also a shareholder of the
Issuer (collectively, the "Shareholders"). Such Voting Agreement provides that
the Shareholders must vote no less than 1,700,001 of their collective shares
(the "Allocated Shares") in favor of Frank P. Greinke's candidacy as a member of
the Issuer's (formerly PEI California's) Board of Directors. Mr. Greinke is the
Chief Executive Officer of the general partner of SCOC and is also a director of
the Issuer. The Shareholders have the exclusive right to vote the Allocated
Shares as they wish with regard to all other matters. The Voting Agreement also
provides that the Shareholders may not transfer the Allocated Shares without
SCOC's written consent. SCOC consented to the transfer of the Allocated Shares
in connection with the Share Exchange Transaction described in Item 4 above.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
2.1 Agreement and Plan of Merger dated March 23, 2005 between the
Company and Accessity Corp. (1)
2.2 Share Exchange Agreement dated as of May 14, 2004 by and among
Accessity Corp., Pacific Ethanol, Inc., Kinergy Marketing,
LLC, ReEnergy, LLC and the other parties named therein (1)
2.3 Amendment No. 1 to Share Exchange Agreement dated as of July
29, 2004 by and among Accessity Corp., Pacific Ethanol, Inc.,
Kinergy Marketing, LLC, ReEnergy, LLC and the other parties
named therein (1)
2.4 Amendment No. 2 to Share Exchange Agreement dated as of
October 1, 2004 by and among Accessity Corp., Pacific Ethanol,
Inc., Kinergy Marketing, LLC, ReEnergy, LLC and the other
parties named therein (1)
2.5 Amendment No. 3 to Share Exchange Agreement dated as of
January 7, 2005 by and among Accessity Corp., Pacific Ethanol,
Inc., Kinergy Marketing, LLC, ReEnergy, LLC and the other
parties named therein (1)
2.6 Amendment No. 4 to Share Exchange Agreement dated as of
February 16, 2005 by and among Accessity Corp., Pacific
Ethanol, Inc., Kinergy Marketing, LLC, ReEnergy, LLC and the
other parties named therein (1)
2.7 Amendment No. 5 to Share Exchange Agreement dated as of March
3, 2005 by and among Accessity Corp., Pacific Ethanol, Inc.,
Kinergy Marketing, LLC, ReEnergy, LLC and the other parties
named therein (1)
9.1 Voting Agreement dated as of October 27, 2003 by and among
Southern Counties Oil Co., a California limited partnership,
William L. Jones and Maurine Jones, Ryan Turner and Wendy
Turner, and Andrea Jones
CUSIP No. 69423U 10 7 SCHEDULE 13D Page 6 of 7
(1) Filed as an exhibit to the Issuer's current report on Form 8-K
for March 23, 2005 and incorporated herein by reference.
CUSIP No. 69423U 10 7 SCHEDULE 13D Page 7 of 7
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
March 31, 2005
-----------------------------------
(Date)
/s/ William L. Jones, an individual
-----------------------------------
(Signature)
EX-9.1
2
pei_13gex9-1.txt
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) WILLIAM C.
JONES and MAURINE JONES, husband and wife ("Jones"), (iii) RYAN W. TURNER and
WENDY TURNER, husband and wife ("Turner"), and ANDREA JONES, a single woman
("Andrea" and together with Jones and Turner, 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, Jones owned six million
(6,000,000) shares of the issued and authorized common stock of Pacific Ethanol,
Inc, (the "Corporation"), Turner and Andrea 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 Jones, one hundred fifty thousand (150,000) shares of the
issued and authorized common stock of the Corporation from Turner, and one
hundred fifty thousand (150,000) shares of the issued and authorized. common
stock of the Corporation from Andrea.
3. As of the Effective Date, Jones owns four million eight hundred
thousand (4,800,000) shares of the issued and authorized common stock of the
Corporation (the "Jones Shares"), Turner owns one million three hundred fifty
thousand (1,350,000) shares of the issued and authorized common stock of the
Corporation (the "Turner Shares"), Andrea owns one million three hundred fifty
thousand (1,350,000) shares of the issued and authorized common stock of the
Corporation (the "Andrea Shares" and together with the Jones Shares. and the
Turner 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, FRANK P. GREINKE
("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.
1
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.
2
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
3
(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.
4
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
1800 West Katella Avenue
Suite 400
Orange, California 92867-3449
5
With a copy to: . Robert W. Bollar, Esq.
Southern Counties Oil Co.
P.O. Box 4159
1800 West Katella Avenue
Suite 400
Orange, California 92867-3449
To Shareholders at: William and Maurine Jones
2254 W. Dovewood Lane
Fresno, California 93711
Ryan and Wendy Turner
1567 West Robinwood
Fresno, California 93711
Andrea Jones
1 3rd Street, NE, Apt. 7
Washington, D.C. 20002-7301
With a copy to: Carl R. Refuerzo, Esq.
Baker, Manock & Jensen
5260 N. Palm Avenue, Suite 421
Fresno, California 93704
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.)
6
"JONES"
/s/ William Jones
WILLIAM JONES
/s/ Maurine Jones
-------------------------------------------------
MAURINE JONES
"TURNER"
/s/ Ryan W. Turner
-------------------------------------------------
RYAN W. TURNER
/s/ Wendy Turner
-------------------------------------------------
WENDY TURNER
"ANDREA"
/s/ Andrea Jones
-------------------------------------------------
ANDREA JONES
"SCOC"
SOUTHERN COUNTIES OIL CO.,
A CALIFORNIA LIMITED PARTNERSHIP
By: /s/ Frank P. Greinke
---------------------------------------------
Name: FRANK P. GREINKE
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/ Ryan Turner
---------------------------------------------
Name: Ryan Turner
Title: Chief Operating Officer
Date: October 27, 2003