UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
(Mark One)
xx
¨¨
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
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
(State or other jurisdiction of incorporation or organization)
41-2170618
(I.R.S. Employer Identification No.)
400 Capitol Mall, Suite 2060, Sacramento, California
(Address of principal executive offices)
95814
(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
Common Stock, $0.001 par value
Name of Exchange on Which Registered
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 ¨
Non-accelerated filer ¨ (Do not check if a smaller reporting company)
Accelerated filer x
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:
Part III incorporates by reference certain information from the registrant’s proxy statement (the “Proxy Statement”) for the 2016
Annual Meeting of Stockholders to be filed on or before April 29, 2016
TABLE OF CONTENTS
PART I
Page
Item 1.
Business.
Item 1A.
Risk Factors.
Item 1B.
Unresolved Staff Comments.
Item 2.
Properties.
Item 3.
Legal Proceedings.
Item 4.
Mine Safety Disclosures.
Item 5.
Market For Registrant’s Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities.
PART II
Item 6.
Selected Financial Data.
Item 7.
Management’s Discussion and Analysis of Financial Condition and Results of Operations.
Item 7A.
Quantitative and Qualitative Disclosures About Market Risk.
Item 8.
Financial Statements and Supplementary Data.
Item 9.
Changes in and Disagreements With Accountants on Accounting and Financial Disclosure.
Item 9A.
Controls and Procedures.
Item 9B.
Other Information.
Item 10.
Directors, Executive Officers and Corporate Governance.
Item 11.
Executive Compensation.
PART III
Item 12.
Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters.
Item 13.
Certain Relationships and Related Transactions, and Director Independence.
Item 14.
Principal Accounting Fees and Services.
Item 15.
Exhibits, Financial Statement Schedules.
Index to Exhibits
Signatures
Exhibits Filed with this Report
PART IV
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CAUTIONARY STATEMENT
All statements included or incorporated by reference in this Annual Report on Form 10-K, other than statements or
characterizations of historical fact, are forward-looking statements. Examples of forward-looking statements include, but are not limited to,
statements concerning projected net sales, costs and expenses and gross margins; our accounting estimates, assumptions and judgments;
the demand for ethanol and its co-products; the competitive nature of and anticipated growth in our industry; production capacity and
goals; our ability to consummate acquisitions and integrate their operations successfully; and our prospective needs for additional capital.
These forward-looking statements are based on our current expectations, estimates, approximations and projections about our industry
and business, management’s beliefs, and certain assumptions made by us, all of which are subject to change. Forward-looking statements
can often be identified by words such as “anticipates,” “expects,” “intends,” “plans,” “predicts,” “believes,” “seeks,” “estimates,”
“may,” “will,” “should,” “would,” “could,” “potential,” “continue,” “ongoing,” similar expressions and variations or negatives of these
words. These statements are not guarantees of future performance and are subject to risks, uncertainties and assumptions that are difficult
to predict. Therefore, our actual results could differ materially and adversely from those expressed in any forward-looking statements as a
result of various factors, some of which are listed under “Risk Factors” in Item 1A of this report. These forward-looking statements speak
only as of the date of this report. We undertake no obligation to revise or update publicly any forward-looking statement for any reason,
except as otherwise required by law.
Item 1. Business.
Business Overview
PART I
We are a leading producer and marketer of low-carbon renewable fuels in the United States.
We own and operate eight strategically-located ethanol production facilities. Four of our plants are in the Western states of
California, Oregon and Idaho, or the Pacific Ethanol West plants; and four of our plants are located in the Midwestern states of Illinois and
Nebraska, or the Pacific Ethanol Central plants. Our plants have a combined ethanol production capacity of 515 million gallons per year.
We are the sixth largest producer of ethanol in the United States based on annualized volumes. We market all the ethanol and co-products
produced at our eight plants as well as ethanol produced by third parties. On an annualized basis, we market over 800 million gallons of
ethanol and over 1.5 million tons of ethanol co-products on a dry matter basis. Our business consists of two operating segments: a
production segment and a marketing segment.
Our mission is to advance our position and significantly increase our market share as a leading producer and marketer of low-
carbon renewable fuels in the United States. We intend to accomplish this goal in part by expanding our ethanol production capacity and
distribution infrastructure, accretive acquisitions, lowering the carbon intensity of our ethanol, extending our marketing business into new
regional and international markets, and implementing new technologies to promote higher production yields and greater efficiencies.
Production Segment
We produce ethanol and co-products at our eight production facilities described below. Our Pacific Ethanol West plants are
located on the West Coast near their respective fuel and feed customers, offering significant timing, transportation cost and logistical
advantages. Our Pacific Ethanol Central plants are located in the Midwest in the heart of the Corn Belt, benefit from low-cost and abundant
feedstock production and allow for access to many additional domestic markets. In addition, our ability to load unit trains from the Pacific
Ethanol Central plants allows for greater access to international markets.
Pacific Ethanol West {
Pacific Ethanol Central {
Facility Name
Magic Valley
Columbia
Stockton
Madera
Aurora West
Aurora East
Pekin Wet
Pekin Dry
Facility Location
Burley, ID
Boardman, OR
Stockton, CA
Madera, CA
Aurora, NE
Aurora, NE
Pekin, IL
Pekin, IL
Estimated Annual Capacity
(gallons)
60,000,000
40,000,000
60,000,000
40,000,000
110,000,000
45,000,000
100,000,000
60,000,000
We produce ethanol co-products at our eight production facilities such as wet distillers grains, or WDG, dry distillers grains with
solubles, or DDGS, wet and dry corn gluten feed, condensed distillers solubles, corn gluten meal, corn germ, corn oil, distillers yeast and
CO2.
1
Marketing Segment
We market ethanol and co-products produced by our eight ethanol production facilities and market ethanol produced by third
parties. We have extensive customer relationships throughout the Western and Midwestern United States. Our ethanol customers are
integrated oil companies and gasoline marketers who blend ethanol into gasoline. Our customers depend on us to provide a reliable supply
of ethanol, and manage the logistics and timing of delivery with very little effort on their part. Our customers collectively require ethanol
volumes in excess of the supplies we produce at our eight production facilities. We secure additional ethanol supplies from third party
plants in California and other third party suppliers in the Midwest where a majority of ethanol producers are located. We arrange for
transportation, storage and delivery of ethanol purchased by our customers through our agreements with third-party service providers in the
Western United States as well as in the Midwest from a variety of sources.
We market our distillers grains and other feed co-products to dairies and feedlots, in many cases located near our ethanol plants.
These customers use our feed co-products for livestock as a substitute for corn and other sources of starch and protein. We sell our corn oil
to poultry and biodiesel customers. We do not market co-products from other ethanol producers.
See “Note 5 – Segments” to our Notes to Consolidated Financial Statements included elsewhere in this report for financial
information about our segments.
Acquisition of Aventine
On July 1, 2015, we consummated our acquisition of Aventine Renewable Energy Holdings, Inc., now known as Pacific Ethanol
Central, LLC, or Aventine, under the terms of an Agreement and Plan of Merger dated as of December 30, 2014 by and among Pacific
Ethanol, Inc., AVR Merger Sub, Inc., one of our wholly-owned subsidiaries, and Aventine. Under the terms of the acquisition, Aventine
became one of our wholly-owned subsidiaries.
We believe the Aventine acquisition is resulting in a number of synergies and strategic advantages. We believe the acquisition has
spread commodity and basis price risks across diverse markets and products, assisting in our efforts to optimize margin management;
improve our hedging opportunities with a greater correlation to the liquid physical and paper markets in Chicago; and increase our
flexibility and alternatives in feedstock procurement for our Midwest and Western production facilities. The acquisition also expands our
marketing reach into new markets and extends our mix of co-products. We believe the acquisition will enable us to have deeper market
insight and engagement in major ethanol and feed markets outside the Western United States, thereby improving pricing opportunities;
allow us to establish access to markets in 48 states for ethanol sales and access many markets with ethanol and co-product sales reaching
domestic and international customers; and enable us to use our more diverse mix of co-products to generate strong co-product returns. In
addition, the acquisition increased our combined ethanol production capacity to 515 million gallons per year and increased our annualized
ethanol marketing volume to over 800 million gallons.
Company History
We are a Delaware corporation formed in February 2005. Our common stock trades on The NASDAQ Capital Market under the
symbol “PEIX.” Our Internet website address is http://www.pacificethanol.com. Information contained on our website is not part of this
Annual Report on Form 10-K. Our Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q, Current Reports on Form 8-K and any
amendments to such reports filed with or furnished to the Securities and Exchange Commission and other Securities and Exchange
Commission filings are available free of charge through our website as soon as reasonably practicable after the reports are electronically
filed with, or furnished to, the Securities and Exchange Commission.
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Business Strategy
Our primary goal is to advance our position and significantly increase our market share as a leading producer and marketer of low-
carbon renewable fuels in the United States. The key elements of our business and growth strategy to achieve this objective include:
·
·
·
·
Expand ethanol production capacity and distribution infrastructure. We believe the United States ethanol production industry
is poised for consolidation. We evaluate and intend to pursue opportunities to acquire additional ethanol production, storage and
distribution facilities and related infrastructure as financial resources and business prospects make these acquisitions desirable.
To this end, we are examining specific opportunities to extend our current production and marketing platform with strategic and
synergistic acquisitions. In addition, we plan to expand our distribution infrastructure by increasing our ability to provide
transportation, storage and related logistical services to our customers throughout the United States.
Lower the carbon intensity of our ethanol. We plan to further reduce the carbon intensity of the ethanol we produce. We are
able to sell this lower carbon intensity ethanol in certain regions at premium prices compared to higher carbon intensity ethanol.
We are able to charge premium prices for this ethanol based on state laws and regulations, such as Low-Carbon Fuel Standards
enacted in California and Oregon that require blenders to use lower carbon intensity ethanol in their gasoline. When available
and cost-effective, we intend to use feedstock other than corn, including cellulosic feedstock, as the raw material used in the
production of ethanol to further reduce the carbon intensity of our ethanol.
Extend our marketing business into new regional and international markets. We have strengthened our market position in the
Midwest through our acquisition of Aventine. We intend to pursue opportunities to extend our marketing business into new
regional markets within reach from Aventine’s plants in Illinois and Nebraska. We also plan to leverage our new relationships
with Aventine’s customers to market and sell additional ethanol sourced from third parties. In addition, we are exploring
opportunities to market and sell ethanol internationally.
Implement new technologies. We intend to continue to evaluate and implement new equipment and technologies to increase the
production yields and efficiencies of our ethanol plants, reduce our use of carbon-based fuels, use other feedstocks, and allow
us to produce advanced biofuels as financial resources and market conditions justify these investments.
Competitive Strengths
We believe that our competitive strengths include the following:
· Our customer and supplier relationships. We have extensive business relationships with customers and suppliers in
California and other Western states. We have also established extensive business relationships with new customers and
suppliers in the Midwest through our acquisition of Aventine. In addition, we have developed extensive business
relationships with major and independent un-branded gasoline suppliers who collectively control the majority of all
gasoline sales in those regions.
3
· Our ethanol distribution network. We believe we have a competitive advantage due to our experience in marketing to
customers in major metropolitan and rural markets in the Western United States. We have developed an ethanol
distribution network for delivery of ethanol by truck to virtually every significant fuel terminal as well as to numerous
smaller fuel terminals throughout California and other Western states. Fuel terminals have limited storage capacity and we
have successfully secured storage tanks at many of the terminals we service. In addition, we have an extensive network of
third-party delivery trucks available to deliver ethanol throughout the Western United States. In the Midwest, we have the
benefit at our Nebraska facilities to sell and deliver products in bulk via unit trains providing us access to western, gulf
coast and international import markets. Our Illinois facilities provide excellent logistical access via rail, truck and barge. Its
relatively unique wet milling process allows us to extract the highest use and value from each component of the corn
kernel. As a result, the wet milling process generates a higher level of cost recovery from corn than that produced at a dry
mill. Further, the additional higher valued co-products can be sold at premium prices under fixed price, longer term
contracts (up to 12 months) thus providing a more stable source or revenue in what can be a volatile commodity industry.
· Our strategic locations. We operate our eight ethanol plants in markets where we believe their individual locations, as well
as our overall ethanol production and marketing platform, provide strategic advantages. Our production in both the Western
United States and in the Midwest enables us to source ethanol from two different regions, which we believe will allow us to
address regional inefficiencies and other challenges such as rail congestion and other supply constraints as well as pricing
anomalies.
o
Pacific Ethanol West plants. We operate the Pacific Ethanol West plants in the Western United States where we
believe local characteristics create an opportunity to capture a significant production and shipping cost advantage over
competing ethanol production facilities in other regions. We believe a combination of factors enable us to achieve this
cost advantage, including:
§
§
§
Locations near fuel blending facilities lower our ethanol transportation costs while providing timing and logistical
advantages over competing locations that require ethanol to be shipped over much longer distances, and in many
cases, require double-handling.
Locations adjacent to major rail lines allow the efficient delivery of corn in large unit trains from major corn-
producing regions, and allow for the efficient delivery of ethanol in large unit trains to other markets, including
markets with higher demand.
Locations near large concentrations of dairy and/or beef cattle enable delivery of WDG, over short distances
without the need for costly drying processes.
o
Pacific Ethanol Central plants. We operate the Pacific Ethanol Central plants in the Midwest which enables us to
participate in the largest regional ethanol market in the United States as well as international markets. Our Midwest
locations, coupled with our locations in the Western United States, also allow us many advantages over locations
solely on the West Coast, including:
§
§
Locations in diverse markets assist us in spreading commodity and basis price risks across markets and products,
supporting our efforts to optimize margin management.
Locations in the Midwest enhance our overall hedging opportunities with a greater correlation to the highly-liquid
physical and paper markets in Chicago.
4
§
§
Locations in diverse markets support heightened flexibility and alternatives in feedstock procurement for our
various production facilities.
Locations in the Midwest allow us deeper market insight and engagement in major ethanol and feed markets
outside the Western United States, thereby improving pricing opportunities.
· Our low carbon-intensity ethanol. California and Oregon have enacted Low-Carbon Fuel Standards for transportation fuels.
Under these Low-Carbon Fuel Standards, the ethanol we produce at our production facilities in the Western United States
has a lower carbon-intensity than most ethanol produced at plants by other producers. This is primarily because the Pacific
Ethanol West plants use less energy in their production processes. The ethanol produced in California by other producers,
all of which we market, also has a lower carbon-intensity rating than either gasoline or ethanol produced in the Midwest.
The lower carbon-intensity rating of ethanol we produce at the Pacific Ethanol West plants or otherwise resell from third-
party California producers is valued in the market by our customers and has enabled us to capture premium prices for this
ethanol.
· Modern technologies. Our Pacific Ethanol West plants use the latest production technologies to take advantage of state-of-
the-art technical and operational efficiencies to achieve lower operating costs, higher yields and more efficient production
of ethanol and its co-products and reduce our use of carbon-based fuels.
· Our experienced management. Our senior management team has a proven track record with significant operational and
financial expertise and many years of experience in the ethanol, fuel and energy industries. Our senior executives, who
average approximately 15 years of industry experience, have successfully navigated a wide variety of business and
industry-specific challenges and deeply understand of the business of successfully producing and marketing ethanol and its
co-products.
We believe that these competitive strengths will help us attain our goal to advance our position and significantly increase our
market share as a leading producer and marketer of low-carbon renewable fuels in the United States.
Industry Overview and Market Opportunity
Overview of Ethanol Market
The primary applications for fuel-grade ethanol in the United States include:
· Octane enhancer. On average, regular unleaded gasoline has an octane rating of 87 and premium unleaded gasoline has an
octane rating of 91. In contrast, pure ethanol has an average octane rating of 113. Adding ethanol to gasoline enables
refiners to produce greater quantities of lower octane blend stock with an octane rating of less than 87 before blending. In
addition, ethanol is commonly added to finished regular grade gasoline as a means of producing higher octane mid-grade
and premium gasoline.
·
Renewable fuels. Ethanol is blended with gasoline in order to enable gasoline refiners to comply with a variety of
governmental programs, in particular, the national Renewable Fuel Standard, or national RFS, which was enacted to
promote alternatives to fossil fuels. See “—Governmental Regulation.”
5
·
Fuel blending. In addition to its performance and environmental benefits, ethanol is used to extend fuel supplies. In light of
the need for transportation fuel in the United States and the dependence on foreign crude oil and refined products, the
United States is increasingly seeking domestic sources of fuel. Much of the ethanol blending throughout the United States
is done for the purpose of extending the volume of fuel sold at the gasoline pump.
The United States ethanol industry is supported by federal and state legislation and regulation. For example, the Energy
Independence and Security Act of 2007, which was signed into law in December 2007, significantly increased the prior national RFS.
Under the national RFS, the mandated use of all renewable fuels rises incrementally in succeeding years and peaks at 36.0 billion gallons
by 2022. Under the national RFS, approximately 13.6 billion gallons in 2014 and 14.5 billion gallons in 2015 were required from
conventional, or corn-based, ethanol. Under the national RFS, 14.4 billion gallons are required from conventional ethanol in 2016. The
national RFS allows the Environmental Protection Agency, or EPA, to adjust the annual requirement based on certain facts.
According to the U.S. Energy Information Administration, the domestic ethanol industry produced a record of approximately 14.8
billion gallons of ethanol in 2015. We believe that the ethanol market in California alone represented approximately 10% of the national
market. However, the Western United States has relatively few ethanol facilities and local ethanol production levels are substantially below
the local demand for ethanol. The balance of ethanol is shipped via rail from the Midwest to the Western United States. Gasoline and diesel
fuel that supply the major fuel terminals are shipped in pipelines throughout portions of the Western United States. Unlike gasoline and
diesel fuel, however, ethanol is not shipped in these types of pipelines because ethanol has an affinity for mixing with water already present
in the pipelines. When mixed, water dilutes ethanol and creates significant quality control issues. Therefore, ethanol must be trucked from
rail terminals to regional fuel terminals, or blending racks.
We believe that approximately 90% of the ethanol produced in the United States is made in the Midwest from corn. According to
the Department of Energy, or DOE, ethanol is generally blended at a rate of 10% by volume, but is also blended at a rate of up to 85% by
volume for vehicles designed to operate on 85% ethanol. The EPA has increased the allowable blend of ethanol in gasoline from 10% by
volume to 15% by volume for model year 2001 and newer automobiles, pending final approvals by certain state regulatory authorities.
Some retailers have begun blending at higher rates in states that have approved higher blend rates.
Compared to gasoline, ethanol is generally considered to be cleaner burning and contains higher octane. We anticipate that the
increasing demand for renewable transportation fuels coupled with limited opportunities for gasoline refinery expansions and the growing
importance of reducing CO2 emissions through the use of renewable fuels will generate additional growth in the demand for ethanol.
According to the DOE, total annual gasoline consumption in the United States is approximately 140 billion gallons and total
annual ethanol consumption represented approximately 10% of this amount in 2014. The domestic ethanol industry has substantially
reached this 10% blend ratio, and we believe the industry has significant potential for growth as the industry migrates to an up to 15% blend
ratio, which would translate into an annual demand of up to 20 billion gallons of ethanol.
Overview of Ethanol Production Process
Ethanol production from starch- or sugar-based feedstock is a highly-efficient process that we believe now yields substantially
more energy from ethanol and its co-products than is required to make the products. The modern production of ethanol requires large
amounts of corn, or other high-starch grains, and water as well as chemicals, enzymes and yeast, and denaturants including unleaded
gasoline or liquid natural gas, in addition to natural gas and electricity.
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Dry Milling Process
In the dry milling process, corn or other high-starch grain is first ground into meal, then slurried with water to form a mash.
Enzymes are then added to the mash to convert the starch into the simple sugar, dextrose. Ammonia is also added for acidic (pH) control
and as a nutrient for the yeast. The mash is processed through a high temperature cooking procedure, which reduces bacteria levels prior to
fermentation. The mash is then cooled and transferred to fermenters, where yeast is added and the conversion of sugar to ethanol and CO2
begins.
After fermentation, the resulting “beer” is transferred to distillation, where the ethanol is separated from the residual “stillage.” The
ethanol is concentrated to 190 proof using conventional distillation methods and then is dehydrated to approximately 200 proof,
representing 100% alcohol levels, in a molecular sieve system. The resulting anhydrous ethanol is then blended with about 2.5%
denaturant, which is usually gasoline, and is then ready for shipment to market.
The residual stillage is separated into a coarse grain portion and a liquid portion through a centrifugation process. The soluble
liquid portion is concentrated to about 40% dissolved solids by an evaporation process. This intermediate state is called condensed distillers
solubles, or syrup. The coarse grain and syrup portions are then mixed to produce WDG or can be mixed and dried to produce dried
distillers grain with solubles, or DDGS. Both WDG and DDGS are high-protein animal feed products.
Wet Milling Process
In the wet milling process, corn or other high-starch grain is first soaked or “steeped” in water for 24 – 48 hours to separate the
grain into its many components. After steeping, the corn slurry is processed first to separate the corn germ, from which the corn oil can be
further separated. The remaining fiber, gluten and starch components are further separated and sold.
The steeping liquor is concentrated in an evaporator. The concentrated product, called heavy steep water, is co-dried with the fiber
component and is then sold as corn gluten feed. The gluten component is filtered and dried to produce corn gluten meal.
The starch and any remaining water from the mash is then processed into ethanol or dried and processed into corn syrup. The
fermentation process for ethanol at this stage is similar to the dry milling process.
Overview of Distillers Grains Market
Distillers grains are produced as a co-product of ethanol production and are valuable components of feed rations primarily to
dairies and beef cattle markets, both nationally and internationally. Our plants produce both WDG and DDGS. WDG is sold to customers
proximate to the plants and DDGS is delivered by truck, rail and barge to customers in domestic and international markets.
Producing WDG also allows us to use up to one-third less process energy thus reducing production costs and lowering the carbon
footprint of these plants thereby increasing demand in California where premiums are paid for the low-carbon attributes.
7
Historically, the market price for distillers grains has generally tracked the value of corn. We believe that the market price of
WDG and DDGS is determined by a number of factors, including the market value of corn, soybean meal and other competitive
ingredients, the performance or value of WDG and DDGS in a particular feed formulation and general market forces of supply and demand,
including export markets for these co-products. The market price of distillers grains is also often influenced by nutritional models that
calculate the feed value of distillers grains by nutritional content, as well as reliability of consistent supply.
Customers
We market and sell through our wholly-owned subsidiary, Kinergy Marketing LLC, or Kinergy, all of the ethanol produced by our
eight production facilities. Kinergy also markets ethanol produced by third parties. We have extensive customer relationships throughout
the Western and Midwestern United States. Our ethanol customers are integrated oil companies and gasoline marketers who blend ethanol
into gasoline. Our customers depend on us to provide a reliable supply of ethanol, and manage the logistics and timing of delivery with very
little effort on their side. Our customers collectively require ethanol volumes in excess of the supplies we produce at our eight production
facilities. We secure additional ethanol supplies from third party plants in California and other third party suppliers in the Midwest where a
majority of ethanol producers are located. We arrange for transportation, storage and delivery of ethanol purchased by our customers
through our agreements with third-party service providers in the Western United States as well as in the Midwest from a variety of sources.
We also market all of the co-products produced at our eight plants. We do not market co-products from other ethanol producers.
Our co-products include WDG, DDGS, wet and dry corn gluten feed, condensed distillers solubles, corn gluten meal, corn germ, corn oil,
distillers yeast and CO2. We market our distillers grains and other feed co-products to dairies and feedlots, in many cases located near our
ethanol plants. These customers use our feed co-products for livestock as a substitute for corn and other sources of starch and protein. We
sell our corn oil to poultry and biodiesel customers.
Our production segment generated $527.7 million, $450.5 million and $387.5 million in net sales for the years ended December
31, 2015, 2014, and 2013, respectively, from the sale of ethanol. Our production segment generated $182.5 million, $111.9 million and
$119.7 million in net sales for the years ended December 31, 2015, 2014, and 2013, respectively, from the sale of co-products.
During 2015, 2014 and 2013, we sold an aggregate of approximately 319.2 million, 183.5 million and 149.7 million gallons of
fuel-grade ethanol and 2.1 million, 1.5 million and 1.3 million tons of ethanol co-products, respectively.
Our marketing segment generated $481.0 million, $545.0 million and $401.3 million in net sales for the years ended December
31, 2015, 2014, and 2013, respectively, from the sale of ethanol.
During 2015, 2014 and 2013, we produced or purchased ethanol from third parties and resold an aggregate of approximately 594
million, 400 million and 302 million gallons of fuel-grade ethanol to approximately 69, 41 and 37 customers, respectively. Sales to our four
largest customers, Chevron Products USA, Valero Energy Corporation, Sinclair Oil Corporation and Tesoro Refining and Marketing
Company LLC in 2015, 2014 and 2013 represented an aggregate of approximately 45%, 59% and 58%, of our net sales, respectively. Sales
to each of our other customers represented less than 10% of our net sales in each of 2015, 2014 and 2013.
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Suppliers
Production Segment
Our ethanol production operations are dependent upon various raw materials suppliers, including suppliers of corn, natural gas,
electricity and water. The cost of corn is the most important variable cost associated with our ethanol production. We source corn for our
plants using standard contracts, including spot purchase, forward purchase and basis contracts. When resources are available, we seek to
limit the exposure of our ethanol production operations to raw material price fluctuations by purchasing forward a portion of our corn
requirements on a fixed price basis and by purchasing corn and other raw materials futures contracts.
During 2015, 2014 and 2013, purchases of corn from our three largest suppliers represented an aggregate of approximately 41%,
53% and 59% of our total corn purchases, respectively, for those periods. Purchases from each of our other corn suppliers represented less
than 10% of total corn purchases in each of 2015, 2014 and 2013.
Marketing Segment
Our marketing operations are dependent upon various third-party producers of fuel-grade ethanol. In addition, we provide ethanol
transportation, storage and delivery services through third-party service providers with whom we have contracted to receive ethanol at
agreed upon locations from our third party suppliers and to store and/or deliver the ethanol to agreed-upon locations on behalf of our
customers. These contracts generally run from year-to-year, subject to termination by either party upon advance written notice before the
end of the then current annual term.
During 2015, 2014 and 2013, we purchased and resold from third parties an aggregate of approximately 275.3 million, 215.4
million and 151.4 million gallons, respectively, of fuel-grade ethanol.
During 2015, 2014 and 2013, purchases of fuel-grade ethanol from our three largest third-party suppliers represented an aggregate
of approximately 37%, 68% and 77% of our total third party ethanol purchases, respectively, for those periods. Purchases from each of our
other third party ethanol suppliers represented less than 10% of total third-party ethanol purchases in each of 2015, 2014 and 2013.
Pacific Ethanol Plants
The table below provides an overview of our eight ethanol production facilities. Our plants have an aggregate annual production
capacity of up to 515 million gallons. All of our plants are currently operational. As market conditions change, we may increase, decrease
or idle production at one or more operational facilities or resume operations at any idled facility.
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Pacific Ethanol West Plants
Location
Approximate maximum annual ethanol production capacity (in
millions of gallons)
Production milling process
Primary energy source
Pacific Ethanol Central Plants
Location
Approximate maximum annual ethanol production capacity (in
millions of gallons)
Production milling process
Primary energy source
Commodity Risk Management
Madera
Facility
Columbia
Facility
Magic Valley
Facility
Madera, CA Boardman, OR
Burley, ID
Stockton
Facility
Stockton, CA
40
Dry
Natural Gas
40
Dry
Natural Gas
60
Dry
Natural Gas
60
Dry
Natural Gas
Pekin
Wet Facility
Pekin, IL
Pekin
Dry Facility
Pekin, IL
Aurora West
Facility
Aurora, NE
Aurora East
Facility
Aurora, NE
100
Wet
Natural
Gas/Coal
60
Dry
Natural Gas
110
Dry
Natural Gas
45
Dry
Natural Gas
We employ various risk mitigation techniques. For example, we may seek to mitigate our exposure to commodity price
fluctuations by purchasing forward a portion of our corn and natural gas requirements through fixed-price or variable-price contracts with
our suppliers, as well as entering into derivative contracts for ethanol, corn and natural gas. To mitigate ethanol inventory price risks, we
may sell a portion of our production forward under fixed- or index-price contracts, or both. We may hedge a portion of the price risks by
selling exchange-traded futures contracts. Proper execution of these risk mitigation strategies can reduce the volatility of our gross profit
margins. However, given the nature of our business, we cannot effectively hedge against extreme volatility or certain market conditions.
For example, ethanol prices, as reported by the Chicago Board of Trade, or CBOT, ranged from $1.31 to $1.69 per gallon during 2015 and
$1.50 to $3.52 per gallon during 2014 and corn prices, as reported by the CBOT, ranged from $3.48 to $4.34 per bushel during 2015 and
from $3.21 to $5.16 per bushel during 2014.
Marketing Arrangements
We market all the ethanol produced at our eight production facilities. In addition, we have exclusive ethanol marketing agreements
with two third-party ethanol producers, Calgren Renewable Fuels, LLC and AE Advanced Fuels Keyes, Inc., to market and sell their entire
ethanol production volumes. Calgren Renewable Fuels, LLC owns and operates an ethanol production facility in Pixley, California with
annual production capacity of 55 million gallons. AE Advanced Fuels Keyes, Inc. owns and operates an ethanol production facility in
Keyes, California with annual production capacity of 55 million gallons. We intend to evaluate and pursue opportunities to enter into
marketing arrangements with other third-party ethanol producers as business prospects make these marketing arrangements advisable.
Competition
We are the sixth largest producer of ethanol in the United States based on annualized volumes and operate in the highly
competitive ethanol production and marketing industry. The largest ethanol producers in the United States are Archer Daniels Midland
Company and Valero Energy Corporation, collectively with over 20% of the total installed ethanol production capacity in the United
States. In addition, there are many mid-size producers with several plants under ownership, smaller producers with one or two plants, and
several ethanol marketers that create significant competition. Overall, we believe there are over 200 ethanol production facilities in the
United States with a total installed production capacity of approximately 15.6 billion gallons and many brokers and marketers with whom
we compete for sales of ethanol and its co-products.
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We believe that our competitive strengths include our customer and supplier relationships, our extensive ethanol distribution
network, our strategic locations, our low carbon ethanol, our use of modern technologies at our production facilities and our experienced
management. We believe that these advantages will help us to attain our goal to advance our position and significantly increase our market
share as a leading producer and marketer of low-carbon renewable fuels in the United States.
Most of the largest metropolitan areas in the United States have fuel terminals served by rail, but other major metropolitan areas
and more remote smaller cities and rural areas do not. We believe that we have a competitive advantage in the Western United States in
particular due to our experience in marketing to the segment of customers in major metropolitan and rural markets in the Western United
States. We manage the complicated logistics of shipping ethanol to intermediate storage locations throughout the Western United States
and trucking the ethanol from these storage locations to blending racks where the ethanol is blended with gasoline. We believe that by
establishing an efficient service for truck deliveries to these more remote locations, we have differentiated ourselves from our competitors
on the West Coast. In addition, due to our Pacific Ethanol West plant locations, we believe that we benefit from our ability to increase spot
sales of ethanol from those plants following ethanol price spikes caused from time to time by rail delays in delivering ethanol from the
Midwest to the Western United States.
Our strategic locations in the Western United States designed to capitalize on cost efficiencies may nevertheless result in higher
than expected costs as a result of more expensive raw materials and related shipping costs, including corn, which generally must be
transported from the Midwest. If the costs of producing and shipping ethanol and its co-products over short distances are not advantageous
relative to the costs of obtaining raw materials from the Midwest, then the benefits of our strategic locations on the West Coast may not be
realized.
Governmental Regulation
Our business is subject to federal, state and local laws and regulations relating to the production of renewable fuels, the protection
of the environment and in support of the corn and ethanol industries. These laws, their underlying regulatory requirements and their
enforcement, some of which are described below, impact, or may impact, our existing and proposed business operations by imposing:
·
·
·
·
restrictions on our existing and proposed business operations and/or the need to install enhanced or additional controls;
the need to obtain and comply with permits and authorizations;
liability for exceeding applicable permit limits or legal requirements, in some cases for the remediation of contaminated soil
and groundwater at our facilities, contiguous and adjacent properties and other properties owned and/or operated by third
parties; and
specifications for the ethanol we market and produce.
In addition, some governmental regulations are helpful to our ethanol production and marketing business. The ethanol fuel
industry is supported by federal and state mandates and environmental regulations that favor the use of ethanol in motor fuel blends in North
America. Some of the governmental regulations applicable to our ethanol production and marketing business are briefly described below.
11
National Energy Legislation
The Energy Independence and Security Act of 2007, which was signed into law in December 2007, significantly increased the
prior national RFS. The national RFS significantly increases the mandated use of renewable fuels, rising incrementally each year, to 36.0
billion gallons by 2022.
Under the provisions of the Energy Independence and Security Act of 2007, the EPA has the authority to waive the mandated
national RFS requirements in whole or in part. To grant a waiver, the EPA administrator must determine, in consultation with the
Secretaries of Agriculture and Energy, that there is inadequate domestic renewable fuel supply or implementation of the requirement would
severely harm the economy or environment of a state, region or the United States as a whole.
Legislation aimed at reducing or eliminating the renewable fuel use required by the national RFS has been introduced in the
United States Congress. On February 4, 2015, the RFS Elimination Act (H.R. 703) was introduced in the House of Representatives. The
bill would fully repeal the national RFS. Also introduced on February 4, 2015, was the RFS Reform Act (H.R. 704), which prohibits corn-
based ethanol from meeting the national RFS requirements, caps the amount of ethanol that can be blended into conventional gasoline at
10%, and requires the EPA to set requirements for cellulosic biofuels at actual production levels. On February 3, 2015, a bill (H.R. 21) was
introduced in the House of Representatives to vacate the waiver issued by EPA allowing the use of 15% ethanol blends in certain light-duty
vehicles.
In the Senate, the Corn Ethanol Mandate Elimination Act of 2015 (S. 577) was introduced on February 26, 2015. The bill would
eliminate corn ethanol as qualifying as a renewable fuel under the national RFS. On March 18, 2015, the American Energy Renaissance Act
of 2015 (S. 791) was introduced in the Senate. Companion legislation (H.R. 1487) was introduced in the House of Representatives on
March 19, 2015. Among other provisions, the bill would phase out the national RFS between 2016 and 2019 and fully repeal the program
in 2020. The Renewable Fuel Standard Repeal Act (S. 1584) was introduced in the Senate on June 16, 2015. It would fully repeal the
national RFS.
All of these bills were assigned to a congressional committee, which will consider them before possibly sending any of them on to
the House of Representatives or the Senate as a whole.
E15 (a Blend of Gasoline and Ethanol)
The EPA has allowed fuel and fuel-additive manufacturers to introduce into commercial gasoline that contains greater than 10%
ethanol by volume, up to 15% ethanol by volume, or E15, for vehicles from model year 2001 and beyond. Additional changes to some
states’ laws to allow for the use of E15 are still required, however, commercial sale of E15 has begun in some states.
State Energy Legislation and Regulations
In January 2007, California’s Governor signed an executive order directing the California Air Resources Board to implement
California’s Low-Carbon Fuel Standard for transportation fuels. California’s Low-Carbon Fuel Standard requires fuel suppliers to reduce
the carbon intensity of transportation fuels to 10% below 2010 levels by 2020. The Governor’s office estimates that the standard will have
the effect of increasing current renewable fuels use in California by three to five times by 2020.
The California Air Resources Board has engaged in a comprehensive process to re-adopt California’s Low-Carbon Fuel Standard
for transportation fuels through 2020 and is expected to extend this through 2030 applying aggressive new carbon intensity reduction
targets for the final 10 years. We believe the revised program will be beneficial as we produce among the lowest carbon intensity ethanol
commercially available, and we receive a premium for the fuel we sell into the California marketplace, which we expect will increase as
the compliance curve steepens beginning in 2016.
12
A program similar to California’s Low-Carbon Fuel Standard has also been adopted in Oregon and the Canadian province of
British Columbia, and is under discussion in Washington State. These regions, together with California, represent a very large segment of
the overall demand for transportation fuels in the United States.
Additional Environmental Regulations
In addition to the governmental regulations applicable to the ethanol production and marketing industry described above, our
business is subject to additional federal, state and local environmental regulations, including regulations established by the EPA, the San
Joaquin Valley Regional Water Quality Control Board, the San Joaquin Valley Air Pollution Control District and the California Air
Resources Board. We cannot predict the manner or extent to which these regulations will harm or help our business or the ethanol
production and marketing industry in general.
Employees
As of March 14, 2016, we had approximately 465 full-time employees. We believe that our employees are highly-skilled, and our
success will depend in part upon our ability to retain our employees and attract new qualified employees, many of whom are in great
demand. Approximately 135 of our employees are presently represented by a labor union, covered by a collective bargaining agreement.
We have never had a work stoppage or strike and we consider our relations with our employees to be good.
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Item 1A. Risk Factors.
Before deciding to purchase, hold or sell our common stock, you should carefully consider the risks described below in addition to
the other information contained in this Report and in our other filings with the Securities and Exchange Commission, including subsequent
reports on Forms 10-Q and 8-K. The risks and uncertainties described below are not the only ones we face. Additional risks and
uncertainties not presently known to us or that we currently deem immaterial may also affect our business. If any of these known or
unknown risks or uncertainties actually occurs with material adverse effects on Pacific Ethanol, our business, financial condition, results
of operations and/or liquidity could be seriously harmed. In that event, the market price for our common stock will likely decline, and you
may lose all or part of your investment.
Risks Related to our Business
We have incurred significant losses and negative operating cash flow in the past and we may incur losses and negative operating
cash flow in the future, which may hamper our operations and impede us from expanding our business.
We have incurred significant losses and negative operating cash flow in the past. For the year ended December 31, 2015, we
incurred consolidated net losses of approximately $18.9 million and incurred negative operating cash flows of $26.8 million. For 2013 and
2012, we incurred consolidated net losses of $1.2 million and $43.4 million, respectively, and in 2012 incurred negative operating cash
flow of $20.8 million. We may incur losses and negative operating cash flow in the future. We expect to rely on cash on hand and cash, if
any, generated from our operations and from future financing activities to fund all of the cash requirements of our business. Continued
losses and negative operating cash flow may hamper our operations and impede us from expanding our business.
Our results of operations and our ability to operate at a profit is largely dependent on managing the costs of corn and natural gas
and the prices of ethanol, distillers grains and other ethanol co-products, all of which are subject to significant volatility and
uncertainty.
Our results of operations are highly impacted by commodity prices, including the cost of corn and natural gas that we must
purchase, and the prices of ethanol, distillers grains and other ethanol co-products that we sell. Prices and supplies are subject to and
determined by market and other forces over which we have no control, such as weather, domestic and global demand, supply shortages,
export prices and various governmental policies in the United States and around the world.
As a result of price volatility of corn, natural gas, ethanol, distillers grains and other ethanol co-products, our results of operations
may fluctuate substantially. In addition, increases in corn or natural gas prices or decreases in ethanol, distillers grains or other ethanol co-
product prices may make it unprofitable to operate. In fact, some of our marketing activities will likely be unprofitable in a market of
generally declining ethanol prices due to the nature of our business. For example, to satisfy customer demands, we maintain certain
quantities of ethanol inventory for subsequent resale. Moreover, we procure much of our inventory outside the context of a marketing
arrangement and therefore must buy ethanol at a price established at the time of purchase and sell ethanol at an index price established later
at the time of sale that is generally reflective of movements in the market price of ethanol. As a result, our margins for ethanol sold in these
transactions generally decline and may turn negative as the market price of ethanol declines.
No assurance can be given that corn or natural gas can be purchased at, or near, current or any particular prices or that ethanol,
distillers grains or other ethanol co-products will sell at, or near, current or any particular prices. Consequently, our results of operations
and financial position may be adversely affected by increases in the price of corn or natural gas or decreases in the price of ethanol,
distillers grains or other ethanol co-products.
14
Over the past several years, the spread between ethanol and corn prices has fluctuated significantly. Fluctuations are likely to
continue to occur. A sustained narrow spread, whether as a result of sustained high or increased corn prices or sustained low or decreased
ethanol prices, would adversely affect our results of operations and financial position. Further, combined revenues from sales of ethanol,
distillers grains and other ethanol co-products could decline below the marginal cost of production, which may force us to suspend
production of ethanol, distillers grains and ethanol co-products at some or all of our plants.
Increased ethanol production may cause a decline in ethanol prices or prevent ethanol prices from rising, and may have other
negative effects, adversely impacting our results of operations, cash flows and financial condition.
We believe that the most significant factor influencing the price of ethanol has been the substantial increase in ethanol production
in recent years. According to the Renewable Fuels Association, domestic ethanol production capacity increased from an annualized rate of
1.5 billion gallons per year in January 1999 to a record 14.8 billion gallons in 2015. In addition, if ethanol production margins improve, we
anticipate that owners of idle ethanol production facilities, many of which may be idled due to poor production margins, will restart
operations, thereby resulting in more abundant ethanol supplies and inventories. Any increase in the demand for ethanol may not be
commensurate with increases in the supply of ethanol, thus leading to lower ethanol prices. Also, demand for ethanol could be impaired due
to a number of factors, including regulatory developments and reduced United States gasoline consumption. Reduced gasoline consumption
has occurred in the past and could occur in the future as a result of increased gasoline or oil prices or other factors such as increased
automobile fuel efficiency. Any of these outcomes could have a material adverse effect on our results of operations, cash flows and
financial condition.
The market price of ethanol is volatile and subject to large fluctuations, which may cause our profitability or losses to fluctuate
significantly.
The market price of ethanol is volatile and subject to large fluctuations. The market price of ethanol is dependent upon many
factors, including the supply of ethanol and the price of gasoline, which is in turn dependent upon the price of petroleum which is highly
volatile and difficult to forecast. For example, ethanol prices, as reported by the CBOT, ranged from $1.31 to $1.69 per gallon during 2015
and $1.50 to $3.52 per gallon during 2014. Fluctuations in the market price of ethanol may cause our profitability or losses to fluctuate
significantly.
Some of our marketing activities will likely be unprofitable in a market of generally declining ethanol prices due to the nature of our
business.
Some of our marketing activities will likely be unprofitable in a market of generally declining ethanol prices due to the nature of
our business. For example, to satisfy customer demands, we maintain certain quantities of ethanol inventory for subsequent resale.
Moreover, we procure much of our inventory outside the context of a marketing arrangement and therefore must buy ethanol at a price
established at the time of purchase and sell ethanol at an index price established later at the time of sale that is generally reflective of
movements in the market price of ethanol. As a result, our margins for ethanol sold in these transactions generally decline and may turn
negative as the market price of ethanol declines.
15
Disruptions in ethanol production infrastructure may adversely affect our business, results of operations and financial condition.
Our business depends on the continuing availability of rail, road, port, storage and distribution infrastructure. In particular, due to
limited storage capacity at our plants and other considerations related to production efficiencies, our plants depend on just-in-time delivery
of corn. The production of ethanol also requires a significant and uninterrupted supply of other raw materials and energy, primarily water,
electricity and natural gas. The prices of electricity and natural gas have fluctuated significantly in the past and may fluctuate significantly
in the future. Local water, electricity and gas utilities may not be able to reliably supply the water, electricity and natural gas that our plants
need or may not be able to supply those resources on acceptable terms. Any disruptions in the ethanol production infrastructure, whether
caused by labor difficulties, earthquakes, storms, other natural disasters or human error or malfeasance or other reasons, could prevent
timely deliveries of corn or other raw materials and energy and may require us to halt production at one or more plants which could have a
material adverse effect on our business, results of operations and financial condition.
We may engage in hedging transactions and other risk mitigation strategies that could harm our results of operations.
In an attempt to partially offset the effects of volatility of ethanol prices and corn and natural gas costs, we may enter into contracts
to fix the price of a portion of our ethanol production or purchase a portion of our corn or natural gas requirements on a forward basis. In
addition, we may engage in other hedging transactions involving exchange-traded futures contracts for corn, natural gas and unleaded
gasoline from time to time. The financial statement impact of these activities is dependent upon, among other things, the prices involved
and our ability to sell sufficient products to use all of the corn and natural gas for which forward commitments have been made. Hedging
arrangements also expose us to the risk of financial loss in situations where the other party to the hedging contract defaults on its contract
or, in the case of exchange-traded contracts, where there is a change in the expected differential between the underlying price in the
hedging agreement and the actual prices paid or received by us. As a result, our results of operations and financial condition may be
adversely affected by fluctuations in the price of corn, natural gas, ethanol and unleaded gasoline.
Operational difficulties at our plants could negatively impact sales volumes and could cause us to incur substantial losses.
Operations at our plants are subject to labor disruptions, unscheduled downtimes and other operational hazards inherent in the
ethanol production industry, including equipment failures, fires, explosions, abnormal pressures, blowouts, pipeline ruptures, transportation
accidents and natural disasters. Some of these operational hazards may cause personal injury or loss of life, severe damage to or destruction
of property and equipment or environmental damage, and may result in suspension of operations and the imposition of civil or criminal
penalties. Our insurance may not be adequate to fully cover the potential operational hazards described above or we may not be able to
renew this insurance on commercially reasonable terms or at all.
Moreover, our plants may not operate as planned or expected. All of these facilities are designed to operate at or above a specified
production capacity. The operation of these facilities is and will be, however, subject to various uncertainties. As a result, these facilities
may not produce ethanol and its co-products at expected levels. In the event any of these facilities do not run at their expected capacity
levels, our business, results of operations and financial condition may be materially and adversely affected.
Future demand for ethanol is uncertain and may be affected by changes to federal mandates, public perception, consumer
acceptance and overall consumer demand for transportation fuel, any of which could negatively affect demand for ethanol and
our results of operations.
16
Although many trade groups, academics and governmental agencies have supported ethanol as a fuel additive that promotes a
cleaner environment, others have criticized ethanol production as consuming considerably more energy and emitting more greenhouse
gases than other biofuels and potentially depleting water resources. Some studies have suggested that corn-based ethanol is less efficient
than ethanol produced from other feedstock and that it negatively impacts consumers by causing increased prices for dairy, meat and other
food generated from livestock that consume corn. Additionally, ethanol critics contend that corn supplies are redirected from international
food markets to domestic fuel markets. If negative views of corn-based ethanol production gain acceptance, support for existing measures
promoting use and domestic production of corn-based ethanol could decline, leading to reduction or repeal of federal mandates, which could
adversely affect the demand for ethanol. These views could also negatively impact public perception of the ethanol industry and acceptance
of ethanol as an alternative fuel.
There are limited markets for ethanol beyond those established by federal mandates. Discretionary blending and E85 blending are
important secondary markets. Discretionary blending is often determined by the price of ethanol versus the price of gasoline. In periods
when discretionary blending is financially unattractive, the demand for ethanol may be reduced. Also, the demand for ethanol is affected by
the overall demand for transportation fuel. Demand for transportation fuel is affected by the number of miles traveled by consumers and
the fuel economy of vehicles. Market acceptance of E15 may partially offset the effects of decreases in transportation fuel demand. A
reduction in the demand for ethanol and ethanol co-products may depress the value of our products, erode our margins and reduce our
ability to generate revenue or to operate profitably. Consumer acceptance of E15 and E85 fuels is needed before ethanol can achieve any
significant growth in market share relative to other transportation fuels.
If we fail to integrate successfully the businesses of Pacific Ethanol and Aventine our results of operations will be adversely affected.
The success of the Aventine acquisition will depend, in large part, on our ability to realize the anticipated benefits from combining
the businesses of Pacific Ethanol and Aventine. To realize these anticipated benefits, we must successfully integrate the businesses of
Pacific Ethanol and Aventine. This integration has been and will continue to be complex and time-consuming.
The failure to integrate successfully and to manage successfully the challenges presented by the integration process may result in
our failure to achieve some or all of the anticipated benefits of the acquisition.
Potential difficulties that may be encountered in the integration process include the following:
·
·
·
·
complexities associated with managing the larger, more complex, combined business;
integrating personnel;
potential unknown liabilities and unforeseen expenses, delays or regulatory conditions associated with the acquisition; and
performance shortfalls as a result of the diversion of management’s attention caused by integrating Pacific Ethanol’s and
Aventine’s operations.
Our future results will suffer if we do not effectively manage our expanded operations.
Our business following the Aventine acquisition is significantly larger than the individual businesses of Pacific Ethanol and
Aventine prior to the acquisition. Our future success depends, in part, upon our ability to manage our expanded business, which will pose
substantial challenges for our management, including challenges related to the management and monitoring of new operations and
associated increased costs and complexity. We cannot assure you that we will be successful or that we will realize the expected operating
efficiencies, annual net operating synergies, revenue enhancements and other benefits currently anticipated to result from the acquisition.
17
Our level of indebtedness may make it more difficult for us to pay or refinance our debts and we may need to divert our cash flow
from operations to debt service payments. Our indebtedness could limit our ability to pursue other strategic opportunities and could
increase our vulnerability to adverse economic and industry conditions.
Our debt service obligations could have an adverse impact on our earnings and cash flows for as long as the indebtedness is
outstanding. Our indebtedness could also have important consequences to holders of our common stock. For example, it could:
· make it more difficult to pay or refinance our debts as they become due during adverse economic and industry conditions
because any decrease in revenues could cause us to not have sufficient cash flows from operations to make our scheduled debt
payments;
·
·
limit our flexibility to pursue other strategic opportunities or react to changes in our business and the industry in which we
operate and, consequently, place us at a competitive disadvantage to our competitors who have less debt; or
require a substantial portion of our cash flows from operations to be used for debt service payments, thereby reducing the
availability of our cash flows to fund working capital, capital expenditures, acquisitions, dividend payments and other general
corporate purposes.
Based upon current levels of operations, we expect to generate sufficient cash on a consolidated basis to make all principal and
interest payments when such payments become due under our existing credit facilities, indentures and other instruments governing our
outstanding indebtedness, but there can be no assurance that we will be able to repay or refinance such borrowings and obligations.
If Kinergy fails to satisfy its financial covenants under its credit facility, it may experience a loss or reduction of that facility, which
would have a material adverse effect on our financial condition and results of operations.
We are substantially dependent on Kinergy’s credit facility to help finance its operations. Kinergy must satisfy monthly financial
covenants under its credit facility, including fixed-charge coverage ratio covenants. Kinergy will be in default under its credit facility if it
fails to satisfy any financial covenant. A default may result in the loss or reduction of the credit facility. The loss of Kinergy’s credit
facility, or a significant reduction in Kinergy’s borrowing capacity under the facility, would result in Kinergy’s inability to finance a
significant portion of its business and would have a material adverse effect on our financial condition and results of operations.
The United States ethanol industry is highly dependent upon certain federal and state legislation and regulation and any changes in
legislation or regulation could have a material adverse effect on our results of operations, cash flows and financial condition.
The EPA has implemented the national RFS pursuant to the Energy Policy Act of 2005 and the Energy Independence and Security
Act of 2007. The national RFS program sets annual quotas for the quantity of renewable fuels (such as ethanol) that must be blended into
motor fuels consumed in the United States. The domestic market for ethanol is significantly impacted by federal mandates under the
national RFS program for volumes of renewable fuels (such as ethanol) required to be blended with gasoline. Future demand for ethanol
will be largely dependent upon incentives to blend ethanol into motor fuels, including the relative price of gasoline versus ethanol, the
relative octane value of ethanol, constraints in the ability of vehicles to use higher ethanol blends, the national RFS, and other applicable
environmental requirements. Any significant increase in production capacity above the national RFS minimum requirements may have an
adverse impact on ethanol prices.
18
Legislation aimed at reducing or eliminating the renewable fuel use required by the national RFS has been introduced in the
United States Congress. On January 21, 2015, the Leave Ethanol Volumes at Existing Levels (LEVEL) Act (H.R. 434) was introduced in the
House. The bill would amend the national RFS by decreasing the required volume of renewable fuels in 2015-2022 to 7.5 billion gallons
per year. On February 4, 2015, the RFS Elimination Act (H.R. 703) was introduced in the House of Representatives. The bill would fully
repeal the national RFS. Also introduced on February 4, 2015, was the RFS Reform Act (H.R. 704), which prohibits corn-based ethanol
from meeting the national RFS requirements, caps the amount of ethanol that can be blended into conventional gasoline at 10%, and
requires the EPA to set requirements for cellulosic biofuels at actual production levels. On January 6, 2015, a bill (H.R. 21) was introduced
in the House of Representatives to, among other things, vacate any waivers issued under the Clean Air Act to allow the sale of mid-level
ethanol blends for use in motor vehicles. A mid-level ethanol blend is an ethanol-gasoline blend containing 10-20% of ethanol by volume
that is intended to be used in any conventional gasoline-powered motor vehicle or nonroad vehicle or engine. On February 26, 2015, the
Corn Ethanol Mandate Elimination Act of 2015 (S. 577) was introduced in the Senate. The bill would eliminate corn ethanol as qualifying
as a renewable fuel under the national RFS. The American Energy Renaissance Act of 2015 (S. 791 and H.R. 1487), which was introduced
in the Senate on March 18, 2015 and the House on March 19, 2015, would phase out the national RFS over a five-year period. The
Renewable Fuel Standard Repeal Act (S. 1584), which would fully repeal the national RFS, was introduced in the Senate on June 16, 2015.
All of these bills were assigned to a congressional committee, which will consider them before possibly sending any of them on to the
House of Representatives or the Senate as a whole. Our operations could be adversely impacted if any legislation is enacted that reduces or
eliminates the national RFS volume requirements or that reduces or eliminates corn ethanol as qualifying as a renewable fuel under the
national RFS.
Under the provisions of the Clean Air Act, as amended by the Energy Independence and Security Act of 2007, the EPA has
limited authority to waive or reduce the mandated national RFS requirements, which authority is subject to consultation with the
Secretaries of Agriculture and Energy, and based on a determination that there is inadequate domestic renewable fuel supply or
implementation of the applicable requirements would severely harm the economy or environment of a state, region or the United States.
For 2016, the EPA reduced the national RFS from the statutory level of 15.0 billion gallons to 14.0 billion gallons. We believe that the
EPA’s decision to propose cuts to the congressionally established volumes is based on the EPA’s perception that the nation’s refueling
infrastructure is currently unable to distribute the statutorily-required volumes to consumers. Our results of operations, cash flows and
financial condition could be adversely impacted if the EPA further reduces the national RFS requirements from the statutory levels
specified in the national RFS.
The ethanol production and marketing industry is extremely competitive. Many of our significant competitors have greater
production and financial resources and one or more of these competitors could use their greater resources to gain market share at
our expense. In addition, a number of Kinergy’s suppliers may circumvent the marketing services we provide, causing our sales and
profitability to decline.
The ethanol production and marketing industry is extremely competitive. Many of our significant competitors in the ethanol
production and marketing industry, including Archer Daniels Midland Company and Valero Energy Corporation, have substantially greater
production and/or financial resources. As a result, our competitors may be able to compete more aggressively and sustain that competition
over a longer period of time. Successful competition will require a continued high level of investment in marketing and customer service
and support. Our limited resources relative to many significant competitors may cause us to fail to anticipate or respond adequately to new
developments and other competitive pressures. This failure could reduce our competitiveness and cause a decline in market share, sales and
profitability. Even if sufficient funds are available, we may not be able to make the modifications and improvements necessary to compete
successfully.
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We also face increasing competition from international suppliers. Currently, international suppliers produce ethanol primarily from
sugar cane and have cost structures that are generally substantially lower than our cost structures. Any increase in domestic or foreign
competition could cause us to reduce our prices and take other steps to compete effectively, which could adversely affect our business,
financial condition and results of operations.
In addition, some of our suppliers are potential competitors and, especially if the price of ethanol reaches historically high levels,
they may seek to capture additional profits by circumventing our marketing services in favor of selling directly to our customers. If one or
more of our major suppliers, or numerous smaller suppliers, circumvent our marketing services, our sales and profitability may decline.
Our ability to utilize net operating loss carryforwards and certain other tax attributes may be limited.
Federal and state income tax laws impose restrictions on the utilization of net operating loss, or NOL, and tax credit carryforwards
in the event that an “ownership change” occurs for tax purposes, as defined by Section 382 of the Internal Revenue Code, or Code. In
general, an ownership change occurs when stockholders owning 5% or more of a “loss corporation” (a corporation entitled to use NOL or
other loss carryovers) have increased their ownership of stock in such corporation by more than 50 percentage points during any three-year
period. The annual base limitation under Section 382 of the Code is calculated by multiplying the loss corporation’s value at the time of the
ownership change by the greater of the long-term tax-exempt rate determined by the Internal Revenue Service in the month of the
ownership change or the two preceding months.
As of December 31, 2015, we had $137.6 million of federal NOLs that are limited in their annual use under Section 382 of the
Code. Accordingly, our ability to utilize these NOL carryforwards may be substantially limited. These limitations could in turn result in
increased future tax obligations, which could have a material adverse effect on our business, financial condition and results of operations.
The high concentration of our sales within the ethanol production and marketing industry could result in a significant reduction in
sales and negatively affect our profitability if demand for ethanol declines.
We expect to be completely focused on the production and marketing of ethanol and its co-products for the foreseeable future. We
may be unable to shift our business focus away from the production and marketing of ethanol to other renewable fuels or competing
products. Accordingly, an industry shift away from ethanol or the emergence of new competing products may reduce the demand for
ethanol. A downturn in the demand for ethanol would likely materially and adversely affect our sales and profitability.
We may be adversely affected by environmental, health and safety laws, regulations and liabilities.
We are subject to various federal, state and local environmental laws and regulations, including those relating to the discharge of
materials into the air, water and ground, the generation, storage, handling, use, transportation and disposal of hazardous materials and
wastes, and the health and safety of our employees. In addition, some of these laws and regulations require us to operate under permits that
are subject to renewal or modification. These laws, regulations and permits can often require expensive pollution control equipment or
operational changes to limit actual or potential impacts to the environment. A violation of these laws and regulations or permit conditions
can result in substantial fines, natural resource damages, criminal sanctions, permit revocations and/or facility shutdowns. In addition, we
have made, and expect to make, significant capital expenditures on an ongoing basis to comply with increasingly stringent environmental
laws, regulations and permits.
20
We may be liable for the investigation and cleanup of environmental contamination at each of our plants and at off-site locations
where we arrange for the disposal of hazardous substances or wastes. If these substances or wastes have been or are disposed of or released
at sites that undergo investigation and/or remediation by regulatory agencies, we may be responsible under the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, or other environmental laws for all or part of the costs of investigation
and/or remediation, and for damages to natural resources. We may also be subject to related claims by private parties alleging property
damage and personal injury due to exposure to hazardous or other materials at or from those properties. Some of these matters may require
us to expend significant amounts for investigation, cleanup or other costs.
In addition, new laws, new interpretations of existing laws, increased governmental enforcement of environmental laws or other
developments could require us to make significant additional expenditures. Continued government and public emphasis on environmental
issues can be expected to result in increased future investments for environmental controls at our plants. Present and future environmental
laws and regulations, and interpretations of those laws and regulations, applicable to our operations, more vigorous enforcement policies
and discovery of currently unknown conditions may require substantial expenditures that could have a material adverse effect on our results
of operations and financial condition.
The hazards and risks associated with producing and transporting our products (including fires, natural disasters, explosions and
abnormal pressures and blowouts) may also result in personal injury claims or damage to property and third parties. As protection against
operating hazards, we maintain insurance coverage against some, but not all, potential losses. However, we could sustain losses for
uninsurable or uninsured risks, or in amounts in excess of existing insurance coverage. Events that result in significant personal injury or
damage to our property or third parties or other losses that are not fully covered by insurance could have a material adverse effect on our
results of operations and financial condition.
If we are unable to attract or retain key personnel, our ability to operate effectively may be impaired, which could have a material
adverse effect on our business, financial condition and results of operations.
Our ability to operate our business and implement strategies depends, in part, on the efforts of our executive officers and other key
personnel. Our future success will depend on, among other factors, our ability to retain our current key personnel and attract and retain
qualified future key personnel, particularly executive management. In addition, the success of the Aventine acquisition will depend in part
on our ability to retain key personnel. It is possible that these personnel might decide not to remain with us now that the acquisition is
completed. If these key personnel terminate their employment, our business activities might be adversely affected and management’s
attention might be diverted from integrating the businesses of Pacific Ethanol and Aventine to recruiting suitable replacement personnel.
We may be unable to locate suitable replacements for any such key personnel or offer employment to potential replacement personnel on
reasonable terms. If we are unable to attract or retain key personnel, our ability to operate effectively may be impaired, which could have a
material adverse effect on our business, financial condition and results of operations.
21
We depend on a small number of customers for the majority of our sales. A reduction in business from any of these customers could
cause a significant decline in our overall sales and profitability.
The majority of our sales are generated from a small number of customers. During 2015, 2014 and 2013, four customers
accounted for an aggregate of approximately $538 million, $659 million and $521 million in net sales, representing 45%, 59% and 58% of
our net sales, respectively, for those periods. We expect that we will continue to depend for the foreseeable future upon a small number of
customers for a significant portion of our sales. Our agreements with these customers generally do not require them to purchase any
specified amount of ethanol or dollar amount of sales or to make any purchases whatsoever. Therefore, in any future period, our sales
generated from these customers, individually or in the aggregate, may not equal or exceed historical levels. If sales to any of these
customers cease or decline, we may be unable to replace these sales with sales to either existing or new customers in a timely manner, or at
all. A cessation or reduction of sales to one or more of these customers could cause a significant decline in our overall sales and
profitability.
Our lack of long-term ethanol orders and commitments by our customers could lead to a rapid decline in our sales and profitability.
We cannot rely on long-term ethanol orders or commitments by our customers for protection from the negative financial effects of
a decline in the demand for ethanol or a decline in the demand for our marketing services. The limited certainty of ethanol orders can make
it difficult for us to forecast our sales and allocate our resources in a manner consistent with our actual sales. Moreover, our expense levels
are based in part on our expectations of future sales and, if our expectations regarding future sales are inaccurate, we may be unable to
reduce costs in a timely manner to adjust for sales shortfalls. Furthermore, because we depend on a small number of customers for a
significant portion of our sales, the magnitude of the ramifications of these risks is greater than if our sales were less concentrated. As a
result of our lack of long-term ethanol orders and commitments, we may experience a rapid decline in our sales and profitability.
There are limitations on our ability to receive distributions from our subsidiaries.
We conduct most of our operations through subsidiaries and are dependent upon dividends or other intercompany transfers of
funds from our subsidiaries to generate free cash flow. Moreover, some of our subsidiaries are limited in their ability to pay dividends or
make distributions to us by the terms of their financing arrangements.
Risks Related to Ownership of our Common Stock
Our stock price is highly volatile, which could result in substantial losses for investors purchasing shares of our common stock and
in litigation against us.
The market price of our common stock has fluctuated significantly in the past and may continue to fluctuate significantly in the
future. The market price of our common stock may continue to fluctuate in response to one or more of the following factors, many of which
are beyond our control:
·
·
·
·
·
·
·
·
·
·
·
·
·
·
·
·
fluctuations in the market prices of ethanol and its co-products;
the cost of key inputs to the production of ethanol, including corn and natural gas;
the volume and timing of the receipt of orders for ethanol from major customers;
competitive pricing pressures;
our ability to timely and cost-effectively produce, sell and deliver ethanol;
the announcement, introduction and market acceptance of one or more alternatives to ethanol;
losses resulting from adjustments to the fair values of our outstanding warrants to purchase our common stock;
changes in market valuations of companies similar to us;
stock market price and volume fluctuations generally;
the possibility that the anticipated benefits from our acquisition of Aventine cannot be fully realized in a timely manner or
at all, or that integrating the acquired operations will be more difficult, disruptive or costly than anticipated;
regulatory developments or increased enforcement;
fluctuations in our quarterly or annual operating results;
additions or departures of key personnel;
our inability to obtain any necessary financing;
our financing activities and future sales of our common stock or other securities; and
our ability to maintain contracts that are critical to our operations.
22
Furthermore, we believe that the economic conditions in California and other Western states, as well as the United States as a
whole, could have a negative impact on our results of operations. Demand for ethanol could also be adversely affected by a slow-down in
the overall demand for oxygenate and gasoline additive products. The levels of our ethanol production and purchases for resale will be
based upon forecasted demand. Accordingly, any inaccuracy in forecasting anticipated revenues and expenses could adversely affect our
business. The failure to receive anticipated orders or to complete delivery in any quarterly period could adversely affect our results of
operations for that period. Quarterly results are not necessarily indicative of future performance for any particular period, and we may not
experience revenue growth or profitability on a quarterly or an annual basis.
The price at which you purchase shares of our common stock may not be indicative of the price that will prevail in the trading
market. You may be unable to sell your shares of common stock at or above your purchase price, which may result in substantial losses to
you and which may include the complete loss of your investment. In the past, securities class action litigation has often been brought
against a company following periods of high stock price volatility. We may be the target of similar litigation in the future. Securities
litigation could result in substantial costs and divert management’s attention and our resources away from our business.
Any of the risks described above could have a material adverse effect on our results of operations or the price of our common
stock, or both.
23
We may incur significant non-cash expenses in future periods due to adjustments to the fair values of our outstanding warrants.
These non-cash expenses may materially and adversely affect our reported net income or losses and cause our stock price to decline.
From 2010 through 2013, we issued in various financing transactions warrants to purchase shares of our common stock. The
warrants were initially recorded at their fair values, which are adjusted quarterly, generally resulting in non-cash expenses or income if the
market price of our common stock increases or decreases, respectively, during the period. For example, due to the substantial increase in
the market price of our common stock in the first quarter of 2014 and because the exercise prices of these warrants were, as of March 31,
2014, well below the market price of our common stock, the fair values of the warrants and the related non-cash expenses were
significantly higher in the first quarter of 2014 than in prior quarterly periods, which resulted in an unusually large non-cash expense for the
quarter. These fair value adjustments will continue in future periods until all of our warrants are exercised or expire. We may incur
additional significant non-cash expenses in future periods due to adjustments to the fair values of our outstanding warrants resulting from
increases in the market price of our common stock during those periods. These non-cash expenses may materially and adversely affect our
reported net income or losses and cause our stock price to decline.
The conversion or exercise of our outstanding derivative securities could substantially dilute your investment, reduce your voting
power, and, if the resulting shares of common stock are resold into the market, or if a perception exists that a substantial number of
shares may be issued and then resold into the market, the market price of our common stock and the value of your investment could
decline significantly.
Our outstanding options to acquire our common stock issued to employees, directors and others, and warrants to purchase our
common stock, allow the holders of these derivative securities an opportunity to profit from a rise in the market price of our common stock.
We have issued common stock in respect of our derivative securities in the past and may do so in the future. If the prices at which our
derivative securities are converted or exercised, are lower than the price at which you made your investment, immediate dilution of the
value of your investment will occur. Our issuance of shares of common stock under these circumstances will also reduce your voting
power. In addition, sales of a substantial number of shares of common stock resulting from any of these issuances, or even the perception
that these sales could occur, could adversely affect the market price of our common stock. As a result, you could experience a significant
decline in the value of your investment as a result of both the actual and potential issuance of shares of our common stock.
Item 1B. Unresolved Staff Comments.
We have received no written comments regarding our periodic or current reports from the staff of the Securities and Exchange
Commission that were issued 180 days or more preceding the end of our 2015 fiscal year and that remain unresolved.
Item 2. Properties.
Our corporate headquarters, located in Sacramento, California, consists of a 10,000 square foot office under a lease expiring in
2018. The Pacific Ethanol West plants are located in Madera, California, at a 137 acre facility; Boardman, Oregon, at a 25 acre facility;
Burley, Idaho, at a 160 acre facility; and Stockton, California, at a 30 acre facility. We own the land in Madera, California and Burley,
Idaho. The land in Boardman, Oregon and Stockton, California are leased under leases expiring in 2026 and 2022, respectively. The Pacific
Ethanol Central plants are located in Pekin, Illinois at a 94 acre facility and Aurora, Nebraska, at a 96 acre facility. We own the land in
Pekin, Illinois and Aurora, Nebraska. We also own an idled ethanol production facility in Canton, Illinois on a 289 acre facility, of which a
significant portion is farm land. Our production segment includes the Pacific Ethanol West plants and the Pacific Ethanol Central plants.
See “Business—Production Facilities.”
24
Item 3. Legal Proceedings.
We are subject to legal proceedings, claims and litigation arising in the ordinary course of business. While the amounts claimed
may be substantial, the ultimate liability cannot presently be determined because of considerable uncertainties that exist. Therefore, it is
possible that the outcome of those legal proceedings, claims and litigation could adversely affect our quarterly or annual operating results or
cash flows when resolved in a future period. However, based on facts currently available, management believes such matters will not
adversely affect in any material respect our financial position, results of operations or cash flows.
We have evaluated the following pending cases and have recorded $3.2 million as a litigation contingency with respect to these
cases for amounts that are probable and estimable.
Western Sugar Cooperative
Pacific Ethanol, Inc., through a subsidiary acquired in its acquisition of Aventine, became involved in a pending lawsuit with
Western Sugar Cooperative (“Western Sugar”) that pre-dated the Aventine acquisition.
On February 27, 2015, Western Sugar filed a complaint in the United States District Court for the District of Colorado (Case No.
1:15-cv-00415) naming Aventine Renewable Energy, Inc. (“ARE, Inc.”), one of Aventine’s subsidiaries, as defendant. Western Sugar
amended its complaint on April 21, 2015. ARE, Inc. purchased surplus sugar through a United States Department of Agriculture program.
Western Sugar was one of the entities that warehoused this sugar for ARE, Inc. The suit alleges that ARE, Inc. breached its contract with
Western Sugar by failing to pay certain penalty rates for the storage of its sugar or alternatively failing to pay a premium rate for storage.
Western Sugar alleges that the penalty rates apply because ARE, Inc. failed to take timely delivery or otherwise cause timely shipment of
the sugar. Western Sugar claims “expectation damages” in the amount of approximately $8.6 million. ARE, Inc. filed answers to Western
Sugar’s complaint and amended complaint generally denying Western Sugar’s allegations and asserting various defenses. The case is
currently in its discovery phase. We are evaluating Western Sugar’s claims.
Item 4. Mine Safety Disclosures.
Not applicable.
25
PART II
Item 5. Market For Registrant’s Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities.
Market Information
Our common stock trades on The NASDAQ Capital Market under the symbol “PEIX”. We also have non-voting common stock
outstanding which is not listed on an exchange. The table below shows, for each fiscal quarter indicated, the high and low sales prices of
shares of our common stock. The prices shown reflect inter-dealer prices, without retail mark-up, mark-down or commission, and may not
necessarily represent actual transactions.
Year Ended December 31, 2015:
First Quarter (January 1 – March 31)
Second Quarter (April 1 – June 30)
Third Quarter (July 1 – September 30)
Fourth Quarter (October 1 – December 31)
Year Ended December 31, 2014:
First Quarter
Second Quarter
Third Quarter
Fourth Quarter
Price Range
High
Low
$
$
$
$
$
$
$
$
12.16 $
13.70 $
10.45 $
7.64 $
18.20 $
18.65 $
23.97 $
15.57 $
7.51
9.90
6.11
3.74
4.83
10.43
13.75
9.10
Security Holders
As of March 14, 2016, we had 38,974,972 shares of common stock outstanding held of record by approximately 340 stockholders
and 3,540,132 shares of non-voting common stock outstanding held of record by 15 stockholders. These holders of record include
depositories that hold shares of stock for brokerage firms which, in turn, hold shares of stock for numerous beneficial owners. On March 14,
2016, the closing sales price of our common stock on The NASDAQ Capital Market was $5.20 per share.
Performance Graph
The graph below shows a comparison of the cumulative total stockholder return on our common stock with the cumulative total
return on The NASDAQ Composite Index and The NASDAQ Clean Edge Green Energy Index, or Peer Group, in each case over the five-
year period ended December 31, 2015.
The graph assumes $100 invested at the indicated starting date in our common stock and in each of The NASDAQ Composite
Index and the Peer Group, with the reinvestment of all dividends. We have not paid or declared any cash dividends on our common stock
and do not anticipate paying any cash dividends on our common stock in the foreseeable future. Stockholder returns over the indicated
periods should not be considered indicative of future stock prices or stockholder returns. This graph assumes that the value of the
investment in our common stock and each of the comparison groups was $100 on December 31, 2010.
26
PACIFIC ETHANOL, INC.
THE NASDAQ COMPOSITE INDEX
THE NASDAQ CLEAN EDGE
GREEN ENERGY INDEX
Dividend Policy
Cumulative Total Return ($)
12/10
12/11
12/12
12/13
12/14
12/15
100.00
100.00
20.98
100.53
6.26
116.92
6.72
166.19
13.63
188.78
6.31
199.95
100.00
62.01
64.84
121.94
127.90
126.21
We have never paid cash dividends on our common stock and do not intend to pay cash dividends on our common stock in the
foreseeable future. We anticipate that we will retain any earnings for use in the continued development of our business.
Our current and future debt financing arrangements may limit or prevent cash distributions from our subsidiaries to us, depending
upon the achievement of specified financial and other operating conditions and our ability to properly service our debt, thereby limiting or
preventing us from paying cash dividends. Further, the holders of our outstanding Series B Preferred Stock are entitled to dividends of 7%
per annum, payable quarterly in arrears. In 2013, 2014 and 2015, we declared and paid in cash dividends on our outstanding shares of
Series B Preferred Stock as they became due. Accrued and unpaid dividends in respect of our Series B Preferred Stock must be paid prior to
the payment of any dividends in respect of shares of our common stock.
27
Recent Sales of Unregistered Securities
None.
Purchases of Equity Securities by the Issuer and Affiliated Purchasers
None.
Item 6. Selected Financial Data.
The following table sets forth our selected consolidated financial data. We prepared this information using our consolidated
financial statements for each of the years ended December 31, 2015, 2014, 2013, 2012 and 2011.
You should read this selected consolidated financial data together with the consolidated financial statements and related notes
contained in this report and in our prior and subsequent reports filed with the Securities and Exchange Commission, as well as the section of
this report and our other reports entitled “Management’s Discussion and Analysis of Financial Condition and Results of Operations.” The
historical results that appear below are not necessarily indicative of results to be expected for any future periods.
$
Consolidated Statements of Operations Data:
Net sales
Cost of goods sold
Gross profit (loss)
Selling, general and administrative expenses
Asset impairments
Income (loss) from operations
Fair value adjustments and warrant inducements
Interest expense, net
Loss on extinguishments of debt
Other income (expense), net
Income (loss) before provision for income taxes
(Benefit) provision for income taxes
Consolidated net income (loss)
Net (income) loss attributed to noncontrolling
interests
Net income (loss) attributed to Pacific Ethanol,
Inc.
$
Preferred stock dividends
Income allocated to participating securities
Income (loss) available to common stockholders $
$
Income (loss) per share, basic
Income (loss) per share, diluted
$
Basic weighted-average shares
Diluted weighted-average shares
Consolidated Balance Sheet Data:
Cash and cash equivalents
Working capital
Total assets
Long-term debt
Stockholders’ equity
$
$
$
$
$
2015
Years Ended December 31,
2014
2013
(in thousands, except per share data)
2012
2011
1,191,176 $
1,183,766
7,410
23,412
1,970
(17,972)
1,641
(12,594)
–
18
(28,907)
(10,034)
(18,873)
1,107,412 $
998,927
108,485
17,108
–
91,377
(37,532)
(9,438)
(2,363)
(905)
41,139
15,137
26,002
908,437 $
875,507
32,930
14,021
–
18,909
(1,013)
(15,671)
(3,035)
(352)
(1,162)
–
(1,162)
816,044 $
835,568
(19,524)
12,141
–
(31,665)
1,954
(13,049)
–
(595)
(43,355)
–
(43,355)
87
(4,713)
381
24,298
(18,786) $
(1,265)
–
(20,051) $
(0.60) $
(0.60) $
33,173
33,173
52,712 $
125,033 $
675,143 $
204,324 $
371,544 $
21,289 $
(1,265)
(585)
19,439 $
0.93 $
0.86 $
20,810
22,669
(781) $
(1,265)
–
(2,046) $
(0.17) $
(0.17) $
12,264
12,264
62,084 $
112,498 $
297,896 $
34,533 $
217,982 $
5,151 $
51,161 $
241,049 $
99,158 $
94,901 $
(19,057) $
(1,268)
–
(20,325) $
(2.81) $
(2.81) $
7,224
7,224
7,586 $
45,017 $
214,963 $
121,282 $
72,907 $
901,188
881,789
19,399
15,427
–
3,972
7,559
(14,813)
–
(741)
(4,023)
–
(4,023)
7,097
3,074
(1,265)
(111)
1,698
0.75
0.75
2,249
2,266
8,914
57,766
232,476
94,439
119,264
No cash dividends on our common stock were declared during any of the periods presented above.
28
Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations.
The following discussion and analysis of our financial condition and results of operations should be read in conjunction with our
consolidated financial statements and notes to consolidated financial statements included elsewhere in this report. This discussion contains
forward-looking statements, reflecting our plans and objectives that involve risks and uncertainties. Actual results and the timing of events
may differ materially from those contained in these forward-looking statements due to a number of factors, including those discussed in the
section entitled “Risk Factors” and elsewhere in this report.
Overview
We are a leading producer and marketer of low-carbon renewable fuels in the United States.
We own and operate eight strategically-located ethanol production facilities. Four of our plants are in the Western states of
California, Oregon and Idaho; and four of our plants are located in the Midwestern states of Illinois and Nebraska. Our plants have a
combined ethanol production capacity of 515 million gallons per year. We are the sixth largest producer of ethanol in the United States
based on annualized volumes. We market all the ethanol and co-products produced at our eight plants as well as ethanol produced by third
parties. On an annualized basis, we market over 800 million gallons of ethanol and over 1.5 million tons of ethanol co-products on a dry
matter basis. Our business consists of two operating segments: a production segment and a marketing segment.
Our mission is to advance our position and significantly increase our market share as a leading producer and marketer of low-
carbon renewable fuels in the United States. We intend to accomplish this goal in part by expanding our ethanol production capacity and
distribution infrastructure, accretive acquisitions, lowering the carbon intensity of our ethanol, extending our marketing business into new
regional and international markets, and implementing new technologies to promote higher production yields and greater efficiencies.
Production Segment
We produce ethanol and co-products at our eight production facilities described below. Our Pacific Ethanol West plants are
located on the West Coast near their respective fuel and feed customers, offering significant timing, transportation cost and logistical
advantages. Our Pacific Ethanol Central plants are located in the Midwest in the heart of the Corn Belt, benefit from low-cost and abundant
feedstock production and allow for access to many additional domestic markets. In addition, our ability to load unit trains from the Pacific
Ethanol Central plants allows for greater access to international markets.
Pacific Ethanol West {
Pacific Ethanol Central {
Facility Name
Magic Valley
Columbia
Stockton
Madera
Aurora West
Aurora East
Pekin Wet
Pekin Dry
29
Facility Location
Burley, ID
Boardman, OR
Stockton, CA
Madera, CA
Aurora, NE
Aurora, NE
Pekin, IL
Pekin, IL
Estimated Annual Capacity
(gallons)
60,000,000
40,000,000
60,000,000
40,000,000
110,000,000
45,000,000
100,000,000
60,000,000
We produce ethanol co-products at our eight production facilities such as wet distillers grains, or WDG, dry distillers grains with
solubles, or DDGS, wet and dry corn gluten feed, condensed distillers solubles, corn gluten meal, corn germ, corn oil, distillers yeast and
CO2.
Marketing Segment
We market ethanol and co-products produced by our eight ethanol production facilities and market ethanol produced by third
parties. We have extensive customer relationships throughout the Western and Midwestern United States. Our ethanol customers are
integrated oil companies and gasoline marketers who blend ethanol into gasoline. Our customers depend on us to provide a reliable supply
of ethanol, and manage the logistics and timing of delivery with very little effort on their part. Our customers collectively require ethanol
volumes in excess of the supplies we produce at our eight production facilities. We secure additional ethanol supplies from third party
plants in California and other third party suppliers in the Midwest where a majority of ethanol producers are located. We arrange for
transportation, storage and delivery of ethanol purchased by our customers through our agreements with third-party service providers in the
Western United States as well as in the Midwest from a variety of sources.
We market our distillers grains and other feed co-products to dairies and feedlots, in many cases located near our ethanol plants.
These customers use our feed co-products for livestock as a substitute for corn and other sources of starch and protein. We sell our corn oil
to poultry and biodiesel customers. We do not market co-products from other ethanol producers.
Acquisition of Aventine
On July 1, 2015, we consummated our acquisition of Aventine under the terms of an Agreement and Plan of Merger dated as of
December 30, 2014 by and among Pacific Ethanol, Inc., AVR Merger Sub, Inc., one of our wholly-owned subsidiaries, and Aventine.
Under the terms of the acquisition, Aventine became one of our wholly-owned subsidiaries.
We believe the Aventine acquisition is resulting in a number of synergies and strategic advantages. We believe the acquisition
has spread commodity and basis price risks across diverse markets and products, assisting in our efforts to optimize margin management;
improve our hedging opportunities with a greater correlation to the liquid physical and paper markets in Chicago; and increase our
flexibility and alternatives in feedstock procurement for our Midwest and Western production facilities. The acquisition also expands our
marketing reach into new markets and extends our mix of co-products. We believe the acquisition will enable us to have deeper market
insight and engagement in major ethanol and feed markets outside the Western United States, thereby improving pricing opportunities;
allow us to establish access to markets in 48 states for ethanol sales and access many markets with ethanol and co-product sales reaching
domestic and international customers; and enable us to use our more diverse mix of co-products to generate strong co-product returns. In
addition, the acquisition increased our combined ethanol production capacity to 515 million gallons per year and increased our annualized
ethanol marketing volume to over 800 million gallons.
30
Current Initiatives and Outlook
We experienced a compressed margin environment throughout most of 2015. Overall crush margins, which reflect ethanol and co-
product sales prices relative to production inputs such as corn and natural gas, remained low in 2015 compared to 2014. This margin
compression is due to lower ethanol prices predominantly caused by higher industry-wide inventory levels creating a supply and demand
imbalance in the industry. We have moderated production at our plants, currently at approximately 85% of overall capacity, to better align
supply and demand.
We remain confident in the long-term demand for renewable fuels and our ability to execute and create value. Although ethanol
currently is at a premium to the wholesale price of gasoline, we believe this underscores the value of ethanol as a high-octane, cleaner-
burning and cheapest available liquid transportation fuel.
We expect our acquisition of Aventine to result in significant synergies in multiple areas of our business. Our goal is to achieve at
least $12.0 million annualized in synergistic benefits, and we have thus far achieved 75% of that amount, attaining approximately $9.0
million annualized in synergistic benefits. We believe our larger, more diversified platform yields significant benefits, including enhanced
purchasing power, increased revenues, new product sales and an overall strengthened position as a low-cost producer and marketer of
ethanol and high-value co-products.
The regulatory environment continues to support the long-term demand for renewable fuels. California’s Low-Carbon Fuel
Standard requires refiners to reduce the carbon intensity of their fuels by 10% between 2011 and 2020, which we believe is an aggressive
requirement that will necessitate a significant amount of low-carbon fuel to displace gasoline in the California fuel supply. Currently, we
receive a $0.08 to $0.09 per gallon premium over Midwest ethanol on each California production gallon sold into the California market.
We expect this premium to increase as the compliance curve steepens in 2016.
We have undertaken a number of plant improvement initiatives. In February 2016, we entered into a technology license and
purchase agreement for our Madera facility for an industrial scale membrane system that separates water from ethanol during the plant’s
dehydration process. We expect this technology to increase operating efficiencies, lower production costs and reduce the carbon intensity of
ethanol produced at our Madera facility. We began producing cellulosic ethanol at our Stockton plant and we are working with our
technology provider and the EPA to qualify this ethanol for special premiums over conventional ethanol. We are also working on
cogeneration technology at our Stockton plant, and are examining the feasibility of implementing the technology at our Madera facility.
We continue to manage our capital spending, focusing on innovative, revenue-enhancing and cost-reducing projects that optimize our use of
cash while providing high near-term returns. We incurred $3.0 million of capital expenditures in the fourth quarter of 2015 and plan to limit
capital improvements to $24.0 million in 2016, the majority of which we intend to adjust based on market conditions and capital resources.
31
Net exports of ethanol continue to be a positive factor for the industry. According to the U.S. Energy Information Administration,
United States exports of ethanol were 87 million gallons in January 2016, a 27% year-over-year increase and the largest single month of
exports since November 2014. We expect United States exports to further increase as Brazil migrates to higher blend levels, strong demand
from Canada persists and Asia and other parts of the world continue to draw exports from the United States.
Our goals for 2016 include further integrating and optimizing our Pacific Ethanol Central plants to maximize the synergies from
our acquisition of Aventine; leveraging our diverse base of production and marketing assets to expand our share of the renewable fuels and
ethanol co-product markets; continuing to reinvest in our ethanol production business through initiatives focused on further improving
operating efficiencies and yields, expanding capacity and diversifying our revenue and product mix in ways that provide near-term,
meaningful returns; and further lowering the carbon intensity of our ethanol by modifying existing operations and investing in new
technologies such as co-generation, anaerobic digestion and solar power generation, all of which are directed at expanding our share of the
renewable fuels market and delivering long-term, profitable growth.
2015 Financial Performance Summary
Summary
Our consolidated net sales increased by 8%, or $83.8 million, to $1,191.2 million for 2015 from $1,107.4 million for 2014. Our
net income available to common stockholders declined by $39.5 million to a net loss of $20.1 million for 2015 from net income of $19.4
million for 2014.
Factors that contributed to our results of operations for 2015 include:
·
Net sales. The increase in our net sales for 2015 as compared to 2014 was primarily due to the following combination of
factors:
o Higher production and marketing sales volumes. Our net sales for the period increased due to increases in both
production and third party gallons sold. Our production sales volume of ethanol increased 74% to 319.2 million
gallons for 2015 from 183.5 million gallons for 2014 and our third party sales volume increased 16% to 382.3 million
gallons for 2015 from 329.7 million gallons for 2014. The increased production sales volume was primarily due our
acquisition of Aventine, which added 134.6 million gallons to our 2015 sales volume.
o
Lower ethanol sales prices. Higher production and marketing sales volumes were partially offset by a decrease in our
average ethanol sales price by 32% to $1.68 per gallon for 2015 as compared to $2.48 per gallon for 2014.
· Gross margin. Our gross margin decreased significantly to 0.6% for 2015 from 9.8% for 2014. The decline in our gross margin
was primarily the result of significantly lower corn crush margins driven by lower ethanol sales prices compared to a record
year in 2014.
32
·
·
·
·
Selling, general and administrative expenses. Our selling, general and administrative expenses, or SG&A, increased by $6.3
million to $23.4 million for 2015, as compared to $17.1 million for 2014, primarily as a result of our acquisition of Aventine.
On a per gallon basis, however, our SG&A declined in 2015 compared to 2014.
Fair value adjustments and warrant inducements. Warrants we issued over the past few years are recorded at fair value, updated
with quarterly adjustments for changes in their fair values and warrant inducements, resulting in income of $1.6 million for 2015
as compared to an expense of $37.5 million for 2014. The expense in 2014 is primarily due to the significant amount by which
the price of our common stock increased in 2014, exceeding the exercise prices of our warrants.
Interest expense. Our interest expense increased by $3.2 million to $12.6 million for 2015 from $9.4 million for 2014. This
increase is primarily due to increased average debt balances from our assumption of $145.0 million in term debt from the
Aventine acquisition.
Benefit for income taxes. In 2015, we recorded a tax benefit of $10.0 million related to our taxable losses in 2015 that will be
carried back to offset a portion of our 2014 tax liability.
Sales and Margins
We generate sales by marketing all the ethanol produced by our eight ethanol plants, all the ethanol produced by two other ethanol
producers in the Western United States and ethanol purchased from other third-party suppliers throughout the United States. We also
market ethanol co-products, including WDG and DDGS, wet and dry corn gluten feed, condensed distillers soluble, corn gluten meal, corn
germ, corn oil, distillers yeast and CO2, for our ethanol plants.
Our profitability is highly dependent on various commodity prices, including the market prices of ethanol, corn and natural gas.
Our average ethanol sales price decreased by 32.3% to $1.68 per gallon in 2015 from $2.48 per gallon in 2014. Similarly, the
average price of ethanol, as reported by the CBOT, decreased by 27.1% to $1.51 per gallon for 2015 from $2.07 per gallon for 2014.
Our average cost of corn decreased in 2015 as compared to 2014, positively impacting our corn crush margins. Specifically, our
average cost of corn decreased by 21% to $4.29 per bushel for 2015 from $5.45 per bushel for 2014. This decrease is commensurate with
the decline in the average price of corn as reported by the CBOT.
We have three principal methods of selling ethanol: as a merchant, as a producer and as an agent. See “—Critical Accounting
Policies—Revenue Recognition” below.
When acting as a merchant or as a producer, we generally enter into sales contracts to ship ethanol to a customer’s desired
location. We support these sales contracts through purchase contracts with several third-party suppliers or through our own production. We
manage the necessary logistics to deliver ethanol to our customers either directly from a third-party supplier or from our inventory via truck
or rail. Our sales as a merchant or as a producer expose us to significant price risks resulting from potential fluctuations in the market price
of ethanol and corn. Our exposure varies depending on the magnitude of our sales and purchase commitments compared to the magnitude
of our existing inventory, as well as the pricing terms—such as market index or fixed pricing—of our contracts. We seek to mitigate our
exposure to price risks by implementing appropriate risk management strategies.
33
When acting as an agent for third-party suppliers, we conduct back-to-back purchases and sales in which we match ethanol
purchase and sale contracts of like quantities and delivery periods. When acting in this capacity, we receive a predetermined service fee and
have little or no exposure to price risks resulting from potential fluctuations in the market price of ethanol. For these sales, we record the
marketing fee as net sales.
We believe that our gross profit margins depend primarily on five key factors:
·
·
·
·
·
the market price of ethanol, which we believe is impacted by the degree of competition in the ethanol market; the price of
gasoline and related petroleum products; and government regulation, including government mandates;
the market price of key production input commodities, including corn and natural gas;
the market price of co-products;
our ability to anticipate trends in the market price of ethanol, co-products, and key input commodities and implement
appropriate risk management and opportunistic strategies; and
the proportion of our sales of ethanol produced at our ethanol plants to our sales of ethanol produced by unrelated third-
parties.
We seek to optimize our gross profit margins by anticipating the factors above and, when resources are available, implementing
hedging transactions and taking other actions designed to limit risk and address these factors. For example, we may seek to decrease
inventory levels in anticipation of declining ethanol prices and increase inventory levels in anticipation of rising ethanol prices. We may
also seek to alter our proportion or timing, or both, of purchase and sales commitments. Furthermore, we may diversify our ethanol
feedstock to lower our average costs and/or increase our ethanol sales prices from premiums for low-carbon intensity rated ethanol.
Our limited resources to act upon the anticipated factors described above and/or our inability to anticipate these factors or their
relative importance, and adverse movements in the factors themselves, could result in declining or even negative gross profit margins over
certain periods of time. Our ability to anticipate these factors or favorable movements in these factors may enable us to generate above-
average gross profit margins. However, given the difficulty associated with successfully forecasting any of these factors, we are unable to
estimate our future gross profit margins.
Results of Operations
Accounting for the Results of Aventine and PE Op Co.
We closed our acquisition of Aventine on July 1, 2015 and, as a result, our results of operations include Aventine’s results of
operations only as of and for the six months ended December 31, 2015. Further, since October 6, 2010, our consolidated financial
statements have included the financial statements of PE Op Co., the holding company that owns the entities which own the Pacific Ethanol
West plants. As such, PE Op Co.’s financial statements in turn include the financial statements of those entities which own the Pacific
Ethanol West plants. On October 6, 2010, we purchased a 20% ownership interest in PE Op Co., which gave us the single largest equity
position in PE Op Co. Based on our ownership interest as well as our asset management and marketing agreements with PE Op Co., we
determined that, beginning on October 6, 2010, we were the primary beneficiary of PE Op Co., and as such, we consolidated PE Op Co.’s
financial results with our financial results. We obtained full voting control of PE Op Co. on May 22, 2015 when we became the sole owner
of PE Op Co., and as of December 31, 2015, we continued to hold a 100% ownership interest in PE Op Co.
34
Selected Financial Information
The following selected financial information should be read in conjunction with our consolidated financial statements and notes to
our consolidated financial statements included elsewhere in this report, and the other sections of “Management’s Discussion and Analysis
of Financial Condition and Results of Operations” contained in this report.
Certain performance metrics that we believe are important indicators of our results of operations include:
Production gallons sold (in millions)
Third party gallons sold (in millions)
Total gallons sold (in millions)
Average sales price per gallon
Corn cost per bushel—CBOT equivalent
Average basis(1)
Delivered cost of corn
Co-product revenues as % of delivered cost of
corn(2)
Average CBOT ethanol price per gallon
Average CBOT corn price per bushel
$
$
$
$
$
$
Years Ended December 31,
2014
2013
2015
319.2
382.3
701.5
1.68 $
3.77 $
0.52 $
4.29 $
183.5
329.7
513.2
2.48 $
4.21 $
1.24 $
5.45 $
35.8%
32.5%
1.51 $
3.77 $
2.07 $
4.16 $
149.7
264.2
413.9
2.59
5.72
1.60
7.32
29.6%
2.25
5.78
Percentage Change
2015 vs 2014
74.0%
16.0%
36.7%
(32.3)%
(10.5)%
(58.1)%
(21.3)%
10.2%
(27.1)%
(9.4)%
2014 vs 2013
22.6%
24.8%
24.0%
(4.2)%
(26.4)%
(22.5)%
(25.5)%
9.8%
(8.0)%
(28.0)%
(1) Corn basis represents the difference between the immediate cash price of delivered corn and the future
price of corn for Chicago delivery.
(2) Co-product revenues as a percentage of delivered cost of corn shows our yield based on sales of co-
products, including WDG and corn oil, generated from ethanol we produced.
35
Year Ended December 31, 2015 Compared to the Year Ended December 31, 2014
Years Ended
December 31,
2015
2014
(dollars in thousands)
Dollar
Change
Favorable
(Unfavorable)
Net sales
Cost of goods sold
Gross profit
Selling, general and administrative
expenses
Asset impairments
Income (loss) from operations
Fair value adjustments and warrant
inducements
Interest expense, net
Loss on extinguishments of debt
Other income (expense), net
Income (loss) before provision for income
taxes
(Benefit) provision for income taxes
Consolidated net income (loss)
Net (income) loss attributed to
noncontrolling interests
Net income (loss) attributed to Pacific
Ethanol, Inc.
Preferred stock dividends
Income allocated to participating
securities
Income (loss) available to common
stockholders
Net Sales
$1,191,176 $1,107,412 $
1,183,766
7,410
998,927
108,485
23,412
1,970
(17,972)
1,641
(12,594)
–
18
(28,907)
(10,034)
(18,873)
17,108
–
91,377
(37,532)
(9,438)
(2,363)
(905)
41,139
15,137
26,002
83,764
(184,839)
(101,075)
(6,304)
(1,970)
(109,349)
39,173
(3,156)
2,363
923
(70,046)
25,171
(44,875)
87
(4,713)
4,800
$ (18,786) $
(1,265)
21,289 $
(1,265)
(40,075)
–
–
(585)
585
$ (20,051) $
19,439 $
(39,490)
Percentage
Change
Favorable
(Unfavorable)
Results as a Percentage of
Net Sales for the Years
Ended
December 31,
2015
2014
7.6%
(18.5)%
(93.2)%
(36.8)%
NM
NM
NM
33.4%
100.0%
NM
NM
NM
NM
NM
NM
–%
NM
NM
100.0%
99.4%
0.6%
100.0%
90.2%
9.8%
2.0%
0.2%
(1.5)%
0.1%
(1.1)%
–%
–%
(2.4)%
(0.8)%
(1.6)%
–%
(1.6)%
(0.1)%
–%
1.5%
–%
8.3%
(3.4)%
(0.9)%
(0.2)%
(0.1)%
3.7%
1.4%
2.3%
(0.4)%
1.9%
(0.1)%
(0.0)%
(1.7)%
1.8%
The increase in our consolidated net sales for 2015 as compared to 2014 was primarily due to an increase in our total gallons sold,
which was partially offset by a decline in our average sales price per gallon.
36
We increased both production and third party gallons sold, and our volume of co-products sold, for 2015 as compared to 2014. The
increases in volumes of our production gallons and co-products sold are primarily due to additional volumes from our new Pacific Ethanol
Central plants, and, to a lesser extent, third party supplier plants. In addition, we expanded our customer base and our sales to a larger
national footprint with the addition of regions we cover with our Midwest plants.
Our average sales price per gallon decreased 32.3% to $1.68 for 2015 compared to our average sales price per gallon of $2.48 for
2014. Similarly, the average CBOT ethanol price per gallon, declined 27.1% to $1.51 for 2015 compared to an average CBOT sales price
per gallon of $2.07 for 2014.
Production Segment
Net sales of ethanol from our production segment increased by $77.3 million, or 17%, to $527.7 million for 2015 as compared to
$450.4 million for 2014. Our total volume of production ethanol gallons sold increased by 135.7 million gallons, or 74%, to 319.2 million
gallons for 2015 as compared to 183.5 million gallons for 2014. Of the additional 135.7 million gallons of ethanol sold in 2015, an
aggregate of 134.6 million gallons were attributable to production at our Midwestern plants which we acquired on July 1, 2015. At our
average sales price per gallon of $1.68 for 2015, we generated $228.0 million in additional net sales from our production segment from the
135.7 million additional gallons of produced ethanol sold in 2015 as compared to 2014. The decline of $0.80, or 32.3%, in our average
sales price per gallon in 2015 as compared to 2014 reduced our net sales from our production segment by $150.7 million.
Net sales of co-products increased $70.6 million, or 63%, to $182.5 million for 2015 as compared to $111.9 million for 2014. Our
total volume of co-products sold increased by 0.6 million tons to 2.1 million tons for 2015 from 1.5 million tons for 2014. At our average
sales price per ton of $88.27 for 2015, we generated $53.3 million in additional net sales from the 0.6 million additional tons of co-products
sold in 2015 as compared to 2014. In addition, the increase of $15.65, or 21.6%, in our average sales price per ton in 2015 as compared to
2014 contributed to the increase in our net sales resulting from higher sales volumes by $17.3 million.
Marketing Segment
Net sales of ethanol from our marketing segment decreased by $64.0 million, or 12%, to $481.0 million for 2015 as compared to
$545.0 million for 2014.
Our total volume of ethanol gallons sold by our marketing segment increased by 188.3 million gallons, or 37%, to 701.5 million
gallons for 2015 as compared to 513.2 million gallons for 2014. Our additional production gallons sold accounted for 135.7 million gallons
of this increase, as noted above, and our additional third-party gallons sold accounted for 52.6 million gallons of this increase.
The increase in production gallons sold by our marketing segment contributed insignificantly to net sales generated by our
marketing segment, resulting in an additional $1.3 million in net sales, which were eliminated upon consolidation.
At our average sales price per gallon of $1.68 for 2015, we generated $88.3 million in additional net sales from our marketing
segment from the 52.6 million gallons in additional third-party ethanol sold in 2015 as compared to 2014. However, the decline of $0.80, or
32.3%, in our average sales price per gallon in 2015 as compared to 2014 reduced our net sales from third-party ethanol sold by our
marketing segment by $153.6 million.
Cost of Goods Sold and Gross Profit
Our consolidated gross profit declined significantly to $7.4 million for 2015 from a record $108.5 million for 2014, representing a
gross margin of 0.6% for 2015 compared to 9.8% for 2014. Our consolidated gross profit decreased primarily due to a decline of $0.80 in
our average sales price per gallon in 2015 as compared to 2014.
Production Segment
Our production segment reduced our consolidated gross profit by $98.4 million for 2015 as compared to 2014. Of this amount,
$94.3 million is attributable to lower margins resulting primarily from our lower average sales price per gallon in 2015 as compared to
2014, and $4.1 million in lower gross profit is attributed to the 135.7 million gallon increase in production volumes sold in 2015 as
compared to 2014.
Marketing Segment
Our marketing segment reduced our consolidated gross profit by $3.4 million for 2015 as compared to 2014. Of this amount, $4.4
million is attributable to lower margins resulting primarily from our lower average sales price per gallon in 2015 as compared to 2014,
which was partially offset by $1.0 million in additional gross profit from the 188.3 million gallon increase in marketing volumes in 2015 as
compared to 2014.
Selling, General and Administrative Expenses
Our SG&A increased $6.3 million to $23.4 million for 2015 as compared to $17.1 million for the same period in 2014. The
increase in SG&A is primarily due to our new Pacific Ethanol Central operations. On a per gallon basis, however, our SG&A declined in
2015 as compared to 2014.
Asset Impairments
We recorded an asset impairment charge of $2.0 million for the year ended December 31, 2015 related to our abandonment of
certain accounting and information technology systems in connection with our integration of Aventine. We did not record any asset
impairment for the year ended December 31, 2014.
37
Fair Value Adjustments and Warrant Inducements
We issued warrants in various financing transactions from 2010 through 2013. These warrants were initially recorded at fair value
and are adjusted quarterly. As a result of quarterly fair value adjustments and warrant inducements, we recorded income of $1.6 million for
2015 and an expense of $37.5 million for 2014.
These changes in fair value are primarily due to the volatility in the market price of our common stock from period to period. The
substantial change in fair value for 2014 occurred because the exercise prices of our warrants were well below the market price of our
common stock throughout the year, most notably at March 31, 2014. At December 31, 2013, the market price of our common stock was
$5.09 per share and our outstanding warrants had a weighted-average exercise price of $7.27 per share. At March 31, 2014, the market price
of our common stock had increased to $15.58 per share, and our outstanding warrants were in-the-money and had significant intrinsic value.
At December 31, 2014, the market price of our common stock had declined slightly from the prior quarter to $10.33.
These fair value adjustments will continue in future periods until all of our warrants are exercised or expire. These adjustments
will generally reduce our net income or increase our net loss if the market price of our common stock increases from the prior quarter
through the date of a warrant’s exercise, if exercised during the quarter, or if our common stock increases on a quarter over quarter basis for
warrants outstanding at the end of a quarter. Conversely, the adjustments will generally increase our net income or reduce our net loss if the
market price of our common stock declines in these scenarios.
We paid an aggregate of $2.3 million in cash to certain warrant holders as inducements to exercise their warrants in 2014. No such
payments were made in 2015.
Interest Expense
Interest expense, net increased by $3.2 million to $12.6 million for 2015 from $9.4 million for 2014. Interest expense is primarily
related to our debt associated with our production segment. The increase in interest expense, net for 2015 is primarily related to our
increased term debt outstanding due to Aventine’s $145.6 million in term debt.
Loss on Extinguishments of Debt
We extinguished certain PE Op Co. debt in 2014 by paying $2.4 million in cash in excess of the amount of the debt, and as such,
recorded a loss on extinguishments of debt. We retired a total of $70.8 million in debt during 2014, eliminating all parent level debt and
reducing our consolidated third-party debt at the plant level to $17.0 million as of December 31, 2014. No such debt extinguishments were
made in 2015.
Provision (Benefit) for Income Taxes
In 2015, we generated losses, which are able to be carried back to offset prior year’s income subject to income tax, resulting in a tax
benefit. As a result, this increased our income tax receivable to $10.7 million, which we expect to receive in 2016. In addition, in 2015, we
recognized a $1.5 million tax benefit related to adjustments to our tax asset valuation allowance from a prior period.
Net (Income) Loss Attributed to Noncontrolling Interests
Net (income) loss attributed to noncontrolling interests relates to our consolidated treatment of PE Op Co., which indirectly owns
our Pacific Ethanol West plants. We consolidated PE Op Co.’s financial results for the periods presented, however, because we owned less
than 100% of PE Op Co. for portions of the periods, we reduced our consolidated net income (loss) for the noncontrolling interests, which
were the ownership interests that we did not own. The decreases in net income attributed to noncontrolling interests for the periods are
primarily due to lower operating income from lower commodity margins, much of which was generated at the plant level. Going forward,
given our 100% ownership of PE Op Co., no amounts will be recorded for noncontrolling interests.
38
Preferred Stock Dividends
Shares of our Series B Preferred Stock are entitled to quarterly cumulative dividends payable in arrears in an amount equal to 7%
per annum of the purchase price per share of the Series B Preferred Stock. We accrued and paid in cash dividends of $1.3 million for each
of 2015 and 2014 in respect of our Series B Preferred Stock.
Year Ended December 31, 2014 Compared to the Year Ended December 31, 2013
Years Ended
December 31,
2014
2013
(dollars in thousands)
Dollar
Change
Favorable
(Unfavorable)
$1,107,412 $ 908,437 $
998,927
108,485
875,507
32,930
198,975
(123,420)
75,555
17,108
91,377
14,021
18,909
(37,532)
(9,438)
(2,363)
(905)
41,139
15,137
26,002
(1,013)
(15,671)
(3,035)
(352)
(1,162)
–
(1,162)
(3,087)
72,468
(36,519)
6,233
672
(553)
42,301
(15,137)
27,164
(4,713)
381
(5,094)
21,289 $
(1,265)
(585)
(781) $
(1,265)
–
22,070
–
(585)
Net sales
Cost of goods sold
Gross profit
Selling, general and administrative
expenses
Income from operations
Fair value adjustments and warrant
inducements
Interest expense, net
Loss on extinguishments of debt
Other expense, net
Income (loss) before provision for income
taxes
Provision for income taxes
Consolidated net income (loss)
Net (income) loss attributed to
noncontrolling interests
Net income (loss) attributed to Pacific
Ethanol, Inc.
$
Preferred stock dividends
Income allocated to participating securities
Income (loss) available to common
stockholders
$
19,439 $
(2,046) $
21,485
Percentage
Change
Favorable
(Unfavorable)
Results as a Percentage of
Net Sales for the Years
Ended
December 31,
2014
2013
21.9%
(14.1)%
229.4%
(22.0)%
383.2%
(3,605.0)%
39.8%
22.1%
(157.1)%
NM
NM
NM
NM
NM
–%
–%
NM
100.0%
90.2%
9.8%
1.5%
8.3%
100.0%
96.4%
3.6%
1.5%
2.1%
(3.4)%
(0.9)%
(0.2)%
(0.1)%
3.7%
1.4%
2.3%
(0.1)%
(1.7)%
(0.3)%
–%
(0.1)%
–%
(0.1)%
(0.4)%
–%
1.9%
(0.1)%
–%
1.8%
(0.1)%
(0.1)%
–%
(0.2)%
Net Sales
The increase in our consolidated net sales for 2014 as compared to 2013 was primarily due to an increase in our total gallons sold,
which was partially offset by a decline in our average sales price per gallon.
39
We increased both production and third-party gallons sold, and our volume of co-products sold, for 2014 as compared to 2013.
The increases in our production gallons and third-party gallons sold are primarily due to increased production rates at our Pacific
Ethanol West plants and third party supplier plants, respectively, including as a result of the restart of production at our Madera plant. The
increase in our volume of co-products sold is due to increased production at our Pacific Ethanol West plants, including as a result of the
restart of production at our Madera plant. We and our third party suppliers increased production rates due to higher industry-wide corn
crush margins resulting from lower corn costs and relatively higher ethanol prices due to tighter ethanol supplies relative to demand,
especially in the Western United States due to weather conditions in the first quarter of 2014 and ongoing rail logistics challenges which
constrained the flow of ethanol and co-products from the Midwest to the markets in which we operate. In addition, we expanded our
customer base and our sales within the regions we cover which contributed to higher third party gallons sold.
Our average sales price per gallon decreased 4.2% to $2.48 for 2014 compared to our average sales price per gallon of $2.59 for
2013. The average CBOT ethanol price per gallon, however, declined 8% to $2.07 for 2014 compared to an average CBOT sales price per
gallon of $2.25 for 2013.
Production Segment
Net sales of ethanol from our production segment increased by $62.9 million, or 16%, to $450.4 million for 2014 as compared to
$387.5 million for 2013. Our total volume of production ethanol gallons sold increased by 33.8 million gallons, or 23%, to 183.5 million
gallons for 2014 as compared to 149.7 million gallons for 2013. Of the additional 33.8 million gallons of ethanol sold in 2014, an aggregate
of 20.0 million gallons were attributable to the restart of our Madera plant. At our average sales price per gallon of $2.48 for 2014, we
generated $83.8 million in additional net sales from our production segment from the 33.8 million additional gallons of produced ethanol
sold in 2014 as compared to 2013. The decline of $0.11, or 4.2%, in our average sales price per gallon in 2014 as compared to 2013 reduced
our net sales from our production segment by $20.9 million.
Net sales of co-products decreased by $7.8 million, or 7%, to $111.9 million for 2014 as compared to $119.7 million for 2013. Our
total volume of co-products sold increased by 0.17 million tons to 1.50 million tons for 2014 from 1.33 million tons for 2013. At our
average sales price per ton of $72.62 for 2014, we generated $12.3 million in additional net sales from our production segment from the
0.17 million additional tons of co-products sold in 2014 as compared to 2013. However, the decline of $14.61, or 16.7%, in our average
sales price per ton in 2014 as compared to 2013 fully offset the increase in our net sales resulting from higher sales volumes, reducing our
net sales from our production segment by $20.1 million. Although net sales of our other co-products increased in 2014 as compared to
2013, we believe the overall changes in sales volumes and prices of those co-products were immaterial to our net sales for 2014.
Marketing Segment
Net sales of ethanol from our marketing segment increased by $143.7 million, or 36%, to $545.0 million for 2014 as compared to
$401.3 million for 2013.
Our total volume of ethanol gallons sold by our marketing segment increased by 99.3 million gallons, or 24%, to 513.2 million
gallons for 2014 as compared to 413.9 million gallons for 2013. Our additional production gallons sold accounted for 33.8 million gallons
of this increase, as noted above, and our additional third-party gallons sold accounted for 65.5 million gallons of this increase.
The increase in production gallons sold by our marketing segment contributed insignificantly to net sales generated by our
marketing segment, resulting in an additional $0.6 million in net sales, which were eliminated upon consolidation.
At our average sales price per gallon of $2.48 for 2014, we generated $162.4 million in additional net sales from our marketing
segment from the 65.5 million gallons in additional third-party ethanol sold in 2014 as compared to 2013. However, the decline of $0.11, or
4.2%, in our average sales price per gallon in 2014 as compared to 2013 reduced our net sales from third-party ethanol sold by our
marketing segment by $19.3 million.
Cost of Goods Sold and Gross Profit
Our consolidated gross profit improved significantly to $108.5 million for 2014 from $32.9 million for 2014, representing a gross
margin of 9.8% for 2014 compared to 3.6% for 2013. Our consolidated gross profit increased primarily due to our production gallons sold
at significantly improved corn crush margins, predominantly related to lower corn costs and tighter ethanol supplies relative to demand as
well as higher ethanol prices in the Western United States due to weather conditions in the first quarter of 2014 and rail logistics challenges
which constrained the flow of ethanol and co-products from the Midwest to the markets in which we operate. Crush and commodity
margins reflect ethanol and co-product sales prices relative to ethanol production inputs such as corn and natural gas. Our ongoing plant
efficiency and yield improvement initiatives also positively impacted our margins.
Production Segment
Our production segment increased our consolidated gross profit by $73.8 million for 2014 as compared to 2013. Of this amount,
$57.4 million is attributable to higher margins resulting primarily from improved corn crush margins and $16.4 million is attributable to the
33.8 million gallon increase in production volumes sold in 2014 as compared to 2013.
Marketing Segment
Our marketing segment increased our consolidated gross profit by $0.1 million for 2014 as compared to 2013. Of this amount,
$2.4 million is attributable to additional gross profit from the 99.3 million gallon increase in marketing volumes in 2014 as compared to
2013, which was partially offset by $2.3 million in lower gross profit resulting primarily from our lower average sales price per gallon in
2014 as compared to 2013.
40
Selling, General and Administrative Expenses
Our SG&A increased $3.1 million to $17.1 million for 2014 as compared to $14.0 million for the same period in 2013. The
increase in SG&A is primarily due to an increase in compensation costs of $1.0 million due to incentive compensation tied to our
profitability and an increase in professional fees of $1.8 million due to increased corporate and plant activity, including $0.7 million related
to our acquisition of Aventine.
Fair Value Adjustments and Warrant Inducements
We issued certain warrants in various financing transactions from 2010 through 2013. These warrants were initially recorded at
fair value and are adjusted quarterly. As a result of quarterly adjustments to their fair values and warrant inducements, we recorded an
expense of $37.5 million for 2014 and $1.0 million for 2013.
The significant expense and changes in fair value in 2014 are primarily due to the increased number of warrants issued in the three
months ended March 31, 2013 and the volatility in the market price of our common stock from period to period. The substantial change in
fair value for 2014 occurred because the exercise prices of our warrants were well below the market price of our common stock throughout
the year, most notably at March 31, 2014. At December 31, 2013, the market price of our common stock was $5.09 per share and our
outstanding warrants had a weighted-average exercise price of $7.27 per share. At March 31, 2014, the market price of our common stock
had increased to $15.58 per share, and our outstanding warrants were in-the-money and had significant intrinsic value. At December 31,
2014, the market price of our common stock had declined slightly from the prior quarter to $10.33.
These fair value adjustments will continue in future periods until all of our warrants are exercised or expire. These adjustments
will generally reduce our net income or increase our net loss if the market price of our common stock increases from the prior quarter
through the date of a warrant’s exercise, if exercised during the quarter, or if our common stock increased on a quarter over quarter basis for
warrants outstanding at the end of a quarter. Conversely, the adjustments will generally increase our net income or reduce our net loss if the
market price of our common stock declines in these scenarios.
We paid an aggregate of $2.3 million and $0.8 million in cash to certain warrant holders as inducements to exercise their warrants
in 2014 and 2013, respectively.
Interest Expense
Interest expense, net declined by $6.2 million to $9.4 million for 2014 from $15.7 million for 2013. The decrease in interest
expense, net for these periods, which were primarily related to our production segment, is due to decreased average debt balances, partially
offset by accelerations of debt discount and deferred financing fees of an aggregate of $2.1 million for 2014, due to the early retirement of
the debt associated with our Pacific Ethanol West plants and our senior unsecured notes.
41
Loss on Extinguishments of Debt
We extinguished certain PE Op Co. debt by paying $2.4 million in cash in excess of the amount of the debt, and as such, recorded a
loss on extinguishments of debt. We retired a total of $70.8 million in debt during 2014, eliminating all parent level debt and reducing our
consolidated third-party debt at the Pacific Ethanol West plant level to $17.0 million as of December 31, 2014.
Other Expense, Net
Other expense, net increased by $0.5 million to $0.9 million for 2014 from $0.4 million for 2013. The increase in other expense,
net is primarily due to our significantly reduced debt balances in 2014.
Provision for Income Taxes
In 2014, we generated income subject to income tax. Our fair value adjustments and warrant inducements are not tax deductible
and thus resulted in larger taxable income as compared to reported income before our provision for income taxes. On a cash basis, we
applied our net operating loss carryforwards to a portion of our taxable income for the year.
Net (Income) Loss Attributed to Noncontrolling Interests
Net (income) loss attributed to noncontrolling interests relates to our consolidated treatment of PE Op Co., and represents the
noncontrolling interest of other owners in PE Op Co.’s income or losses. We consolidated PE Op Co.’s financial results for the periods
presented, however, because we owned less than 100% of PE Op Co. during the periods, we accordingly reduced our net income (loss) for
the noncontrolling interests, which represents the remaining ownership interests that we did not own. We increased our ownership interest
in PE Op Co. to 96% during 2014. In early 2013, when we owned a smaller percentage of PE Op Co., gross margins and profits were lower
than in the latter part of the year when we owned a higher percentage of PE Op Co. As a result, income attributed to the noncontrolling
interests was lower and income attributed to us was higher as we owned more of PE Op Co. during periods of higher gross margins and
profits.
Preferred Stock Dividends
Shares of our Series B Preferred Stock are entitled to quarterly cumulative dividends payable in arrears in an amount equal to 7%
per annum of the purchase price per share of the Series B Preferred Stock. We accrued and paid in cash dividends of $1.3 million for each
of 2014 and 2013 in respect of our Series B Preferred Stock.
42
Liquidity and Capital Resources
During 2015, we funded our operations primarily from cash on hand, including cash held by Aventine as of the closing of our
acquisition of Aventine, and advances from Kinergy’s revolving credit facility. These funds were also used to make capital expenditures,
payoff Aventine’s revolving credit facility, make payments on our capital leases and pay dividends in respect of our Series B Preferred
Stock.
Our current available capital resources consist of cash on hand and amounts available for borrowing under Kinergy’s credit
facility. We expect that our future available capital resources will consist primarily of our remaining cash balances, amounts available for
borrowing, if any, under our credit facilities, cash generated from operations and proceeds from any warrant exercises.
We believe that current and future available capital resources, revenues generated from operations, and other existing sources of
liquidity, including our credit facilities, will be adequate to meet our anticipated capital requirements for at least the next twelve months.
Quantitative Year-End Liquidity Status
We believe that the following amounts provide insight into our liquidity and capital resources. The following selected financial
information should be read in conjunction with our consolidated financial statements and notes to consolidated financial statements
included elsewhere in this report, and the other sections of “Management’s Discussion and Analysis of Financial Condition and Results of
Operations” contained in this report. The information below as of December 31, 2015 includes amounts consolidated from our acquisition
of Aventine. The information below as of July 1, 2015 represents the corresponding Aventine amounts outstanding as of July 1, 2015, the
effective date of the acquisition (dollars in thousands).
Cash and cash equivalents
Current assets
Property and equipment, net
Current liabilities
Notes payable, noncurrent portion
Working capital
Working capital ratio
Restricted Net Assets
Pacific Ethanol
December 31,
2015
December 31,
2014
Aventine
July 1,
2015
$
$
$
$
$
$
52,712 $
197,942 $
464,960 $
72,909 $
204,324 $
125,033 $
2.71
62,084 $
137,945 $
155,302 $
25,447 $
34,533 $
112,498 $
5.42
18,756
69,149
312,781
27,233
156,465
41,916
2.54
At December 31, 2015, we had approximately $164.0 million of net assets at our subsidiaries that were not available to be transferred
to the parent company in the form of dividends, loans or advances due to restrictions contained in the credit facilities of these subsidiaries.
43
Changes in Working Capital and Cash Flows
Working capital increased to $125.0 million at December 31, 2015 from $112.5 million at December 31, 2014 as a result of an
increase of $60.0 million in current assets, partially offset by an increase of $47.5 million in current liabilities.
Current assets increased primarily due to an increase of $42.3 million in inventories and $26.7 million in accounts receivable
resulting primarily from our new Pacific Ethanol Central operations, and an increase of $2.5 million in income tax receivables resulting
predominantly from our net losses in 2015 that may be carried back to offset the prior year’s income.
Our cash and cash equivalents declined by $9.4 million at December 31, 2015 as compared to December 31, 2014 due to $26.8
million of cash used in our operations and $6.3 million of cash used in our investing activities, offset by $23.8 million of cash provided by
our financing activities, as discussed below.
Our current liabilities increased primarily due to an increase of $21.3 million in accounts payable and accrued liabilities resulting
from our new Pacific Ethanol Central operations and the reclassification of $17.0 million of long-term debt as current liabilities as the
maturity date of the debt became within one year. This debt was associated with our Pacific Ethanol West plants and was repaid in
February 2016.
Cash provided by or used in our Operating Activities
Cash provided by our operating activities declined by $115.2 million in 2015 as compared to 2014. We used $26.8 million of cash
in our operating activities in 2015. The decline in cash provided by our operating activities is primarily due to lower net income caused by
reduced margins resulting from lower ethanol prices. Additional factors that contributed to the decline in cash provided by our operating
activities include:
·
·
·
an increase in accounts receivable of $16.7 million primarily due to higher sales volumes attributable to our new Pacific
Ethanol Central operations;
an increase in inventory of $17.2 million primarily due to higher sales volumes attributable to our new Pacific Ethanol
Central operations; and
a decrease in accounts payable and accrued expenses of $11.9 million due to the timing of payments.
These amounts were partially offset by:
·
an increase in depreciation and amortization of $10.4 million due to additional assets subject to depreciation and
amortization from our acquisition of Aventine.
44
Cash provided by or used in our Investing Activities
Cash used in our investing activities declined by $12.9 million in 2015 as compared to 2014. We used $6.3 million of cash in our
investing activities in 2015. The decline in cash used in our investing activities is primarily due to $18.8 million in cash acquired in
connection with our acquisition of Aventine upon closing the transaction. Additional factors that contributed to the decline in cash used in
our investing activities include:
·
a decrease of $6.0 million in our purchases of PE Op Co. ownership interests. We used $6.0 million of cash in 2014 to
acquire the remaining 4% of PE Op Co. ownership interests. We did not expend any amounts in 2015 to purchase PE Op
Co. ownership interests.
These amounts were partially offset by:
·
·
an increase in expenditures of $7.2 million for additions to property and equipment associated with our plant improvement
initiatives; and
an increase of $4.6 million for purchases of temporary cash collateralized letters of credit related to our new Pacific Ethanol
Central operations.
Cash provided by or used in our Financing Activities
Cash provided by our financing activities increased by $35.9 million in 2015 as compared to 2014. We generated $23.8 million of
cash from our financing activities in 2015. The increase in cash provided by our financing activities is primarily due to $45.1 million of
additional borrowings under Kinergy’s credit facility. Additional factors that contributed to the increase in cash provided by our financing
activities include:
·
·
·
a decline of $26.0 million in payments to retire certain indebtedness of the Pacific Ethanol West plants;
a decline of $17.0 million in funds used to purchase outstanding indebtedness of the Pacific Ethanol West plants; and
a decline of $14.0 million in payments on our senior unsecured notes.
We retired a significant amount of indebtedness in 2014 through the direct repayment or the purchase of our outstanding
consolidated debt.
These amounts were partially offset by:
·
·
a decline of $26.1 million in proceeds from the sale of our common stock and warrants. We raised capital in 2014 through
the sale of common stock and warrants. We did not raise capital by selling common stock or warrants in 2015; and
a decline of $43.3 million in proceeds from the exercise of our outstanding warrants. We processed numerous warrant
exercises in 2014 driven by a substantial increase in the price per share of our common stock. Warrant exercises did not
recur in any significant amount in 2015.
45
Kinergy Operating Line of Credit
Kinergy maintains an operating line of credit for an aggregate amount of up to $75.0 million. The credit facility expires on
December 31, 2020. Interest accrues under the credit facility at a rate equal to (i) the three-month London Interbank Offered Rate
(“LIBOR”), plus (ii) a specified applicable margin ranging from 1.75% to 2.75%. The credit facility’s monthly unused line fee is 0.25% to
0.375% of the amount by which the maximum credit under the facility exceeds the average daily principal balance during the immediately
preceding month. Payments that may be made by Kinergy to Pacific Ethanol as reimbursement for management and other services provided
by Pacific Ethanol to Kinergy are limited under the terms of the credit facility to $1.5 million per fiscal quarter. Payments that may be made
by Pacific Ag. Products, LLC, or PAP, to Pacific Ethanol as reimbursement for management and other services provided by Pacific Ethanol
to PAP are limited under the terms of the credit facility to $0.5 million per fiscal quarter. PAP, one of our indirect wholly-owned
subsidiaries, markets our co-products and also provides raw material procurement services to our subsidiaries.
The credit facility also includes the accounts receivable of PAP as additional collateral.
For all monthly periods in which excess availability falls below a specified level, Kinergy and PAP must collectively maintain a
fixed-charge coverage ratio (calculated as a twelve-month rolling earnings before interest, taxes, depreciation and amortization (EBITDA)
divided by the sum of interest expense, capital expenditures, principal payments of indebtedness, indebtedness from capital leases and taxes
paid during such twelve-month rolling period) of at least 2.0 and are prohibited from incurring certain additional indebtedness (other than
specific intercompany indebtedness). Kinergy’s and PAP’s obligations under the credit facility are secured by a first-priority security
interest in all of their assets in favor of the lender. Kinergy and PAP believe they are in compliance with this covenant. The following table
summarizes Kinergy’s financial covenants and actual results for the periods presented (dollars in thousands):
Fixed Charge Coverage Ratio Requirement
Actual
Excess
Years Ended December 31,
2014
2015
2.00
10.02
8.02
2.00
17.66
15.66
Pacific Ethanol has guaranteed all of Kinergy’s obligations under the credit facility. As of December 31, 2015, Kinergy had an
outstanding balance of $61.0 million and an available borrowing base under the credit facility of $67.2 million, representing $6.2 million of
excess availability under the credit facility.
Pacific Ethanol West Term Debt and Operating Line of Credit
Our indebtedness associated with our Pacific Ethanol West plants as of December 31, 2015 consisted of a $32.5 million tranche A-
1 term loan and a $26.3 million tranche A-2 term loan. Pacific Ethanol, Inc. holds $41.8 million of these term loans, which are eliminated
in consolidation. The term debt required monthly interest payments at a floating rate equal to the three-month LIBOR or the Prime Rate of
interest, at our election, plus 10.0%. At December 31, 2015, the average interest rate was approximately 13.25%. Repayments of principal
were based on available free cash flow of the Pacific Ethanol West plants, until maturity, when all principal amounts were due.
46
The term loans represented permanent financing and were secured by a perfected, first-priority security interest in all of the assets,
including inventories and all rights, title and interest in all tangible and intangible assets, of the Pacific Ethanol West plants. The creditors
under the term loans for the Pacific Ethanol West plants did not have recourse to Pacific Ethanol, Inc.
On February 26, 2016, we retired the $17.0 million outstanding balance by purchasing the lender’s position for cash at par without
any prepayment penalty. This purchase increased the amount of the term loans held by us to a combined $58.8 million. As a result, we have
no continuing obligations to any third-party lender under the credit agreements associated with this term debt.
Pacific Ethanol Central Term Debt
On July 1, 2015, upon effectiveness of the Aventine acquisition, Aventine became one of our wholly-owned subsidiaries and, on a
consolidated basis, the combined company became obligated with respect to Aventine’s term loan and revolving credit facilities.
Aventine’s creditors under Aventine’s term loan and revolving credit facilities have recourse solely against Aventine and its subsidiaries
and not against Pacific Ethanol, Inc. or its other direct or indirect subsidiaries. As of July 1, 2015, Aventine’s revolving line of credit had an
outstanding balance of approximately $13.8 million. On July 1, 2015, we repaid, on behalf of Aventine, approximately $14.5 million,
including approximately $0.7 million in termination fees, representing all amounts owed under the revolving line of credit.
As of December 31, 2015, Pacific Ethanol Central’s term loan facility had an outstanding balance of approximately $145.6 million.
Interest on the term loan facility accrues and may be paid in cash at a rate of 10.5% per annum or may be paid in-kind at a rate of 15.0% per
annum by adding such interest to the outstanding principal balance. If we elect to pay interest in-kind, the interest is capitalized at the end
of each quarter. The term loan facility matures on September 24, 2017. The term loan facility is secured through a first-priority lien on
substantially all of Aventine’s assets and contains customary financial covenants, including the requirement that Aventine maintain a cash
balance of at least $2.0 million.
Pacific Ethanol Debt
Senior Unsecured Notes
On January 11, 2013 we issued and sold $22.2 million in aggregate principal amount of senior unsecured notes and warrants to
purchase an aggregate of 1.7 million shares of our common stock for aggregate net proceeds of $22.1 million. As of December 31, 2015,
we have fully repaid these notes and the warrants have been exercised.
Effects of Inflation
The impact of inflation was not significant to our financial condition or results of operations for 2015, 2014 or 2013.
47
Contractual Obligations
The following table outlines payments due under our significant contractual obligations (in thousands):
Contractual Obligations
At December 31, 2015
Sourcing commitments(1)
Debt principal
Debt interest(2)
Capital projects
Operating leases(3)
Capital leases(3)
Preferred dividends(4)
Total commitments
$
$
2016
2017
2018
2019
2020
Thereafter
– $
Total
– $
26,486 $
–
16,510
5,197
15,662
4,630
1,265
69,750 $ 174,950 $
145,619
12,688
–
11,647
3,731
1,265
– $
–
1,220
–
8,212
547
1,265
11,244 $
– $
–
1,220
–
5,558
–
1,265
8,043 $
61,003
1,220
–
953
–
1,265
64,441 $
26,486
– $
206,622
–
32,858
–
5,197
–
43,681
1,649
8,908
–
1,265
7,590
2,914 $ 331,342
__________
(1)
(2)
(3)
(4)
Unconditional purchase commitments for production materials incurred in the normal course of business.
Payments based on interest rates and balances as of December 31, 2015 through maturity.
Future minimum payments under capital and non-cancelable operating leases.
Represents dividends on 926,942 shares of Series B Preferred Stock. Dividends accrue until Series B Preferred Stock is converted to
common stock or redeemed. The “thereafter” amount includes only one additional year of dividends.
The above table outlines our obligations as of December 31, 2015 and does not reflect the changes in our obligations that occurred
after that date.
Critical Accounting Policies
Our discussion and analysis of our financial condition and results of operations is based upon our consolidated financial
statements, which have been prepared in accordance with accounting principles generally accepted in the United States of America. The
preparation of these financial statements requires us to make estimates and judgments that affect the reported amounts of assets and
liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amount of net sales and
expenses for each period. The following represents a summary of our critical accounting policies, defined as those policies that we believe
are the most important to the portrayal of our financial condition and results of operations and that require management’s most difficult,
subjective or complex judgments, often as a result of the need to make estimates about the effects of matters that are inherently uncertain.
Revenue Recognition
We recognize revenue when it is realized or realizable and earned. We consider revenue realized or realizable and earned when
there is persuasive evidence of an arrangement, delivery has occurred, the sales price is fixed or determinable, and collection is reasonably
assured. We derive revenue primarily from sales of ethanol and related co-products. We recognize revenue when title transfers to our
customers, which is generally upon the delivery of these products to a customer’s designated location. These deliveries are made in
accordance with sales commitments and related sales orders entered into with customers either verbally or in written form. The sales
commitments and related sales orders provide quantities, pricing and conditions of sales. In this regard, we engage in three basic types of
revenue generating transactions:
·
·
As a producer. Sales as a producer consist of sales of our inventory produced at our ethanol production facilities.
As a merchant. Sales as a merchant consist of sales to customers through purchases from third-party suppliers in which we may
or may not obtain physical control of the ethanol or co-products in which shipments are directed from our suppliers to our
terminals or direct to our customers but for which we accept the risk of loss in the transactions.
48
·
As an agent. Sales as an agent consist of sales to customers through purchases from third-party suppliers in which the risks and
rewards of inventory ownership remain with third-party suppliers and we receive a predetermined service fee under these
transactions.
The following table shows our net sales generated as a producer, a merchant and as an agent for the years presented (in thousands):
Producer
Merchant
Agent
$
$
For the Years Ended December 31,
2014
2013
2015
710,114 $
479,551
1,511
1,191,176 $
562,281 $
543,222
1,909
1,107,412 $
507,159
399,350
1,928
908,437
Revenue from sales of third-party ethanol and its co-products is recorded net of costs when we are acting as an agent between a
customer and a supplier and gross when we are a principal to the transaction. Several factors are considered to determine whether we are
acting as an agent or principal, most notably whether we are the primary obligor to the customer, whether we have inventory risk and
related risk of loss or whether we add meaningful value to the supplier’s product or service. Consideration is also given to whether we have
latitude in establishing the sales price or have credit risk, or both. When we act as an agent, we record revenues on a net basis, or our
predetermined fees and any associated freight, based upon the amount of net revenues retained in excess of amounts paid to suppliers.
We record revenues based upon the gross amounts billed to our customers in transactions where we act as a producer or a
merchant and obtain title to ethanol and its co-products and therefore own the product and any related unmitigated inventory risk for the
ethanol, regardless of whether we actually obtain physical control of the product.
Warrants and Conversion Features Carried at Fair Value
We have recorded our warrants issued since 2010 and the conversion features of our subordinated convertible notes issued in 2013
at fair value. We believe the valuation of these warrants and conversion features is a critical accounting estimate because valuation
estimates obtained from third parties involve inputs other than quoted prices to value the warrants and conversion features. Changes in
these estimates, and in particular, certain of the inputs to the valuation estimates, can be volatile from period to period and may markedly
impact the total mark-to-market valuation of the warrants and convertible notes recorded as fair value adjustments in our consolidated
statements of operations. We recorded income from fair value adjustments and warrant inducements of $1.6 million and expenses from fair
value adjustments and warrant inducements of $37.5 million and $1.0 million for the years ended December 31, 2015, 2014 and 2013,
respectively. Our senior convertible notes issued in 2013 were fully retired in 2014.
Impairment of Long-Lived and Intangible Assets
Our long-lived assets have been primarily associated with our ethanol production facilities, reflecting their original cost, adjusted
for depreciation and any subsequent impairment.
We assess the impairment of long-lived assets, including property and equipment, purchased intangibles subject to amortization
and other long-lived assets, when events or changes in circumstances indicate that the fair value of an asset could be less than the net book
value of the asset. Generally, we assess long-lived assets for impairment by first determining the forecasted, undiscounted cash flows each
asset is expected to generate plus the net proceeds expected from the sale of the asset. If the amount of proceeds is less than the carrying
value of the asset, we then determine the fair value of the asset. An impairment loss would be recognized when the fair value is less than
the related net book value, and an impairment expense would be recorded in the amount of the difference. Forecasts of future cash flows
are judgments based on our experience and knowledge of our operations and the industry in which we operate. These forecasts could be
significantly affected by future changes in market conditions, the economic environment, including inflation, and the purchasing decisions
of our customers.
49
We review our intangible assets with indefinite lives at least annually or more frequently if impairment indicators arise. In our
review, we determine the fair value of these assets using market multiples and discounted cash flow modeling and compare it to the net
book value of the acquired assets.
In 2015, we recorded an impairment charge of $2.0 million on our long-lived assets related to the abandonment of certain
accounting and information technology systems following our integration of Aventine.
We did not recognize any asset impairment charges in 2014 and 2013.
Valuation Allowance for Deferred Taxes
We account for income taxes under the asset and liability approach, where deferred tax assets and liabilities are determined based
on differences between financial reporting and tax bases of assets and liabilities, and are measured using enacted tax rates and laws that are
expected to be in effect when the differences reverse. Valuation allowances are established when necessary to reduce deferred tax assets to
the amounts expected to be realized.
We evaluate our deferred tax asset balance for realizability. To the extent we believe it is more likely than not that some portion or
all of our deferred tax assets will not be realized, we will establish a valuation allowance against the deferred tax assets. Realization of our
deferred tax assets is dependent upon future taxable income during the periods in which the associated temporary differences become
deductible. We consider the scheduled reversal of deferred tax liabilities, projected future taxable income and tax planning strategies in
making this assessment. These changes, if any, may require possible material adjustments to these deferred tax assets, resulting in a
reduction in net income or an increase in net loss in the period when such determinations are made.
Derivative Instruments
We evaluate our contracts to determine whether the contracts are derivative instruments. Management may elect to exempt certain
forward contracts that meet the definition of a derivative from derivative accounting as normal purchases or normal sales. Normal
purchases and normal sales are contracts that provide for the purchase or sale of something other than a financial instrument or derivative
instrument that will be delivered in quantities expected to be used or sold over a reasonable period in the normal course of business.
Contracts that meet the requirements of normal purchases or sales are documented as normal and exempted from the fair value accounting
and reporting requirements of derivative accounting.
We enter into short-term cash, option and futures contracts as a means of securing purchases of corn, natural gas and sales of
ethanol and managing exposure to changes in commodity prices. All of our exchange-traded derivatives are designated as non-hedge
derivatives for accounting purposes, with changes in fair value recognized in net income. Although the contracts are economic hedges of
specified risks, they are not designated as and accounted for as hedging instruments.
50
Realized and unrealized gains and losses related to exchange-traded derivative contracts are included as a component of cost of
goods sold in the accompanying financial statements. The fair values of contracts entered through commodity exchanges are presented on
the accompanying balance sheet as derivative instruments. The selection of normal purchase or sales contracts, and use of hedge
accounting, are accounting policies that can change the timing of recognition of gains and losses in the statement of operations.
Accounting for Business Combinations
Determining the fair value of assets acquired and liabilities assumed in a business combination is considered a critical accounting
estimate because the allocation of the purchase price to assets acquired and liabilities assumed based upon fair values requires significant
management judgment and the use of subjective measurements. Variability in industry conditions and changes in assumptions or subjective
measurements used to allocate fair value are reasonably possible and may have a material impact on our financial position, liquidity or
results of operations.
Allowance for Doubtful Accounts
We sell ethanol primarily to gasoline refining and distribution companies, sell corn oil to poultry and biodiesel customers and sell
other co-products to dairy operators and animal feed distributors. We had significant concentrations of credit risk from sales of our ethanol
as of December 31, 2015 and 2014, as described in Note 1 to our consolidated financial statements included elsewhere in this report.
However, historically, those ethanol customers have had good credit ratings and we have collected the amounts billed to those customers.
Receivables from customers are generally unsecured. We continuously monitor our customer account balances and actively pursue
collections on past due balances.
We maintain an allowance for doubtful accounts for balances that appear to have specific collection issues. Our collection process
is based on the age of the invoice and requires attempted contacts with the customer at specified intervals. If after a specified number of
days, we have been unsuccessful in our collection efforts, we consider recording a bad debt allowance for the balance in question. We
would eventually write-off accounts included in our allowance when we have determined that collection is not likely. The factors
considered in reaching this determination are the apparent financial condition of the customer, and our success in contacting and negotiating
with the customer.
We recognized a bad debt recovery of $0.3 million and less than $0.1 million, and a bad debt expense of $0.2 million, for the
years ended December 31, 2015, 2014 and 2013, respectively.
51
Impact of New Accounting Pronouncements
See “Note 1 – Organization and Significant Accounting Policies – Recent Accounting Pronouncements” of the Notes to
Consolidated Financial Statements commencing on page F-12 of this report.
Item 7A. Quantitative and Qualitative Disclosures About Market Risk.
We are exposed to various market risks, including changes in commodity prices and interest rates as discussed below. Market risk
is the potential loss arising from adverse changes in market rates and prices. In the ordinary course of business, we may enter into various
types of transactions involving financial instruments to manage and reduce the impact of changes in commodity prices and interest rates.
We do not expect to have any exposure to foreign currency risk as we conduct all of our transactions in U.S. dollars.
Commodity Risk
We produce ethanol and ethanol co-products. Our business is sensitive to changes in the prices of each of ethanol and corn. In the
ordinary course of business, we may enter into various types of transactions involving financial instruments to manage and reduce the
impact of changes in ethanol and corn prices. We do not enter into derivatives or other financial instruments for trading or speculative
purposes.
We are subject to market risk with respect to ethanol pricing. Ethanol prices are sensitive to global and domestic ethanol supply;
crude-oil supply and demand; crude-oil refining capacity; carbon intensity; government regulation; and consumer demand for alternative
fuels. Our ethanol sales are priced using contracts that are either based on a fixed price or an indexed price tied to a specific market, such as
the CBOT or the Oil Price Information Service. Under these fixed-priced arrangements, we are exposed to risk of a decrease in the market
price of ethanol between the time the price is fixed and the time the ethanol is sold.
We satisfy our physical corn needs, the principal raw material used to produce ethanol and ethanol co-products, based on supply-
guaranteed contracts with our vendors. Generally, we determine the purchase price of our corn at the time we begin to grind that day’s
needs. Sometimes we may also enter into contracts with our vendors to fix a portion of the purchase price. As such, we are also subject to
market risk with respect to the price of corn. The price of corn is subject to wide fluctuations due to unpredictable factors such as weather
conditions, farmer planting decisions, governmental policies with respect to agriculture and international trade and global supply and
demand. Under the fixed price arrangements, we assume the risk of a decrease in the market price of corn between the time the price is
fixed and the time the corn is utilized.
Ethanol co-products are sensitive to various demand factors such as numbers of livestock on feed, prices for feed alternatives and
supply factors, primarily production of ethanol co-products by ethanol plants and other sources.
As noted above, we may attempt to reduce the market risk associated with fluctuations in the price of ethanol or corn by
employing a variety of risk management and hedging strategies. Strategies include the use of derivative financial instruments such as
futures and options executed on the CBOT and/or the New York Mercantile Exchange, as well as the daily management of physical corn.
These derivatives are not designated for special hedge accounting treatment, and as such, the changes in the fair values of these
contracts are recorded on the balance sheet and recognized immediately in cost of goods sold. We recognized losses of $0.3 million, $1.1
million and $1.9 million related to settled non-designated hedges as the change in the fair values of these contracts for the years ended
December 31, 2015, 2014 and 2013, respectively.
52
At December 31, 2015, we prepared a sensitivity analysis to estimate our exposure to ethanol and corn. Market risk related to these
factors was estimated as the potential change in pre-tax income resulting from a hypothetical 10% adverse change in the prices of our
expected ethanol and corn volumes. The results of this analysis as of December 31, 2015, which may differ materially from actual results,
are as follows (in millions):
Commodity
Ethanol
Corn
Interest Rate Risk
Year Ending
December 31,
2015 Volume
701.5
114.0
Unit of
Measure
Gallons $
Bushels $
Approximate
Adverse Change
to
Pre-Tax Income
54.0
48.9
We are exposed to market risk from changes in interest rates. Exposure to interest rate risk results primarily from our indebtedness
that bears interest at variable rates. At December 31, 2015, $78.0 million of our long-term debt was variable-rate in nature. Based on a 100
basis point (1.00%) increase in the interest rate on our long-term debt, our pre-tax income for the year ended December 31, 2015 would be
negatively impacted by approximately $0.8 million.
Item 8. Financial Statements and Supplementary Data.
Reference is made to the financial statements, which begin at page F-1 of this report.
Item 9. Changes in and Disagreements with Accountants on Accounting and Financial Disclosure.
None.
Item 9A. Controls and Procedures.
We conducted an evaluation under the supervision and with the participation of our management, including our Chief Executive
Officer and Chief Financial Officer, of the effectiveness of the design and operation of our disclosure controls and procedures. The term
“disclosure controls and procedures,” as defined in Rules 13a-15(e) and 15d-15(e) under the Securities and Exchange Act of 1934, as
amended, or Exchange Act, means controls and other procedures of a company that are designed to ensure that information required to be
disclosed by the company in the reports it files or submits under the Exchange Act is recorded, processed, summarized and reported, within
the time periods specified in the Securities and Exchange Commission’s rules and forms. Disclosure controls and procedures also include,
without limitation, controls and procedures designed to ensure that information required to be disclosed by a company in the reports that it
files or submits under the Exchange Act is accumulated and communicated to the company’s management, including its principal executive
and principal financial officers, or persons performing similar functions, as appropriate, to allow timely decisions regarding required
disclosure. Based on this evaluation, our Chief Executive Officer and Chief Financial Officer concluded as of December 31, 2015 that our
disclosure controls and procedures were effective at a reasonable assurance level.
53
Management’s Report on Internal Control over Financial Reporting
Our management is responsible for establishing and maintaining adequate internal control over financial reporting as defined in
Rules 13a-15(f) and 15d-15(f) under the Exchange Act. Our internal control over financial reporting is designed to provide reasonable
assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance
with generally accepted accounting principles. Our internal control over financial reporting includes those policies and procedures that:
(i)
(ii)
pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and
dispositions of our assets;
provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in
accordance with generally accepted accounting principles, and that our receipts and expenditures are being made only in
accordance with authorizations of our management and directors; and
(iii)
provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of
our assets that could have a material effect on our financial statements.
Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also,
projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of
changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.
A material weakness is defined by the Public Company Accounting Oversight Board’s Audit Standards AS 2201 as being a
deficiency, or combination of deficiencies, in internal control over financial reporting, such that there is a reasonable possibility that a
material misstatement of the company’s annual or interim financial statements will not be prevented or detected on a timely basis by the
company’s internal controls.
Under the supervision and with the participation of our management, including our principal executive officer and principal
financial officer, we conducted an evaluation of the effectiveness of our internal control over financial reporting based on the framework
set forth in Internal Control — Integrated Framework (2013) issued by the Committee of Sponsoring Organizations of the Treadway
Commission. Based on our evaluation under the framework set forth in Internal Control — Integrated Framework (2013), our management
concluded that our internal control over financial reporting was effective as of December 31, 2015.
We completed our acquisition of Aventine on July 1, 2015. As permitted pursuant to the Securities and Exchange Commission’s
guidance, management excluded Aventine’s business from its assessment of the effectiveness of our internal control over financial
reporting as of December 31, 2015. Aventine represented approximately 53% of our total assets as of December 31, 2015 and Aventine’s
business generated approximately 25% of our net sales for the year ended December 31, 2015.
RSM US LLP, an independent registered public accounting firm, has issued an attestation report on our internal control over
financial reporting as of December 31, 2015. That report is included in Part IV of this report.
54
Inherent Limitations on the Effectiveness of Controls
Management does not expect that our disclosure controls and procedures or our internal control over financial reporting will
prevent or detect all errors and all fraud. A control system, no matter how well conceived and operated, can provide only reasonable, not
absolute, assurance that the objectives of the control systems are met. Further, the design of a control system must reflect the fact that there
are resource constraints, and the benefits of controls must be considered relative to their costs. Because of the inherent limitations in a cost-
effective control system, no evaluation of internal control over financial reporting can provide absolute assurance that misstatements due to
error or fraud will not occur or that all control issues and instances of fraud, if any, have been or will be detected.
These inherent limitations include the realities that judgments in decision-making can be faulty and that breakdowns can occur
because of a simple error or mistake. Controls can also be circumvented by the individual acts of some persons, by collusion of two or more
people, or by management override of the controls. The design of any system of controls is based in part on certain assumptions about the
likelihood of future events, and there can be no assurance that any design will succeed in achieving its stated goals under all potential future
conditions. Projections of any evaluation of controls effectiveness to future periods are subject to risks. Over time, controls may become
inadequate because of changes in conditions or deterioration in the degree of compliance with policies or procedures.
Changes in Internal Control over Financial Reporting
There has been no change in our internal control over financial reporting (as defined in Rules 13a-15(f) and 15d-15(f) under the
Exchange Act) during the most recently completed fiscal quarter that has materially affected, or is reasonably likely to materially affect, our
internal control over financial reporting.
Item 9B. Other Information.
None.
55
Item 10. Directors, Executive Officers and Corporate Governance.
PART III
The information under the captions “Information about our Board of Directors, Board Committees and Related Matters” and
“Section 16(a) Beneficial Ownership Reporting Compliance,” appearing in the Proxy Statement, is hereby incorporated by reference.
Item 11. Executive Compensation.
The information under the caption “Executive Compensation and Related Information,” appearing in the Proxy Statement, is
hereby incorporated by reference.
Item 12. Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters.
The information under the captions “Security Ownership of Certain Beneficial Owners and Management” and “Equity
Compensation Plan Information,” appearing in the Proxy Statement, is hereby incorporated by reference.
Item 13. Certain Relationships and Related Transactions, and Director Independence.
The information under the captions “Certain Relationships and Related Transactions” and “Information about our Board of
Directors, Board Committees and Related Matters—Director Independence” appearing in the Proxy Statement, is hereby incorporated by
reference.
Item 14. Principal Accounting Fees and Services.
The information under the caption “Audit Matters—Principal Accountant Fees and Services,” appearing in the Proxy Statement, is
hereby incorporated by reference.
Item 15. Exhibits, Financial Statement Schedules.
(a)(1) Financial Statements
PART IV
Reference is made to the financial statements listed on and attached following the Index to Consolidated Financial Statements
contained on page F-1 of this report.
(a)(2) Financial Statement Schedules
None.
(a)(3) Exhibits
Reference is made to the exhibits listed on the Index to Exhibits.
56
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
Reports of Independent Registered Public Accounting Firms
Consolidated Balance Sheets as of December 31, 2015 and 2014
Consolidated Statements of Operations for the Years Ended December 31, 2015, 2014 and 2013
Consolidated Statements of Comprehensive Income (Loss) for the Years Ended December 31, 2015, 2014 and 2013
Consolidated Statements of Stockholders’ Equity for the Years Ended December 31, 2015, 2014 and 2013
Consolidated Statements of Cash Flows for the Years Ended December 31, 2015, 2014 and 2013
Notes to Consolidated Financial Statements
F-2
F-5
F-7
F-8
F-9
F-10
F-12
F-1
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Board of Directors and Stockholders
Pacific Ethanol, Inc.
We have audited the accompanying consolidated balance sheet of Pacific Ethanol, Inc. and subsidiaries as of December 31, 2015, and the
related consolidated statements of operations, comprehensive income (loss), stockholders' equity, and cash flows for the year then ended.
These financial statements are the responsibility of the Company's management. Our responsibility is to express an opinion on these
financial statements based on our audit.
We conducted our audit in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those
standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of
material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial
statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as
evaluating the overall financial statement presentation. We believe that our audit provides a reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above present fairly, in all material respects, the financial position of
Pacific Ethanol, Inc. and subsidiaries as of December 31, 2015, and the results of their operations and their cash flows for the year then
ended, in conformity with U.S. generally accepted accounting principles.
We have also audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States), Pacific
Ethanol, Inc.'s and subsidiaries’ internal control over financial reporting as of December 31, 2015, based on criteria established in Internal
Control — Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission in 2013, and our
report dated March 15, 2016 expressed an unqualified opinion on the effectiveness of Pacific Ethanol, Inc.’s internal control over financial
reporting.
/s/ RSM US LLP
Sioux Falls, South Dakota
March 15, 2016
F-2
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Board of Directors and Stockholders
Pacific Ethanol, Inc.
We have audited Pacific Ethanol, Inc.'s internal control over financial reporting as of December 31, 2015, based on criteria established in
Internal Control — Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission in 2013.
Pacific Ethanol, Inc.’s management is responsible for maintaining effective internal control over financial reporting and for its assessment
of the effectiveness of internal control over financial reporting included in the accompanying Management’s Report on Internal Control
over Financial Reporting. Our responsibility is to express an opinion on the company's internal control over financial reporting based on
our audit.
We conducted our audit in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those
standards require that we plan and perform the audit to obtain reasonable assurance about whether effective internal control over financial
reporting was maintained in all material respects. Our audit included obtaining an understanding of internal control over financial reporting,
assessing the risk that a material weakness exists, and testing and evaluating the design and operating effectiveness of internal control based
on the assessed risk. Our audit also included performing such other procedures as we considered necessary in the circumstances. We
believe that our audit provides a reasonable basis for our opinion.
As described in Management’s Report on Internal Control over Financial Reporting, management has excluded Pacific Ethanol Central,
LLC (previously known as Aventine Renewable Energy Holdings, Inc.) from its assessment of internal control over financial reporting as
of December 31, 2015, because it was acquired by the Company in a purchase business combination in the third quarter of 2015. We have
also excluded Pacific Ethanol Central, LLC from our audit of internal control over financial reporting. Pacific Ethanol Central, LLC is a
wholly owned subsidiary whose total assets and net sales represent approximately 53% and 25%, respectively, of the related consolidated
financial statement amounts as of and for the year ended December 31, 2015.
A company's internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of
financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting
principles. A company's internal control over financial reporting includes those policies and procedures that (a) pertain to the maintenance
of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the company; (b) provide
reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally
accepted accounting principles, and that receipts and expenditures of the company are being made only in accordance with authorizations of
management and directors of the company; and (c) provide reasonable assurance regarding prevention or timely detection of unauthorized
acquisition, use, or disposition of the company's assets that could have a material effect on the financial statements.
Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections of
any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in
conditions, or that the degree of compliance with the policies or procedures may deteriorate.
In our opinion, Pacific Ethanol, Inc. maintained, in all material respects, effective internal control over financial reporting as of December
31, 2015, based on criteria established in Internal Control — Integrated Framework issued by the Committee of Sponsoring Organizations
of the Treadway Commission in 2013.
We have also audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States), the
consolidated balance sheet of Pacific Ethanol, Inc. and subsidiaries as of December 31, 2015, and the related consolidated statements of
operations, comprehensive income (loss), stockholders’ equity and cash flows for the year then ended, and our report dated March 15, 2016
expressed an unqualified opinion.
/s/ RSM US LLP
Sioux Falls, South Dakota
March 15, 2016
F-3
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Board of Directors and Stockholders
Pacific Ethanol, Inc.
We have audited the accompanying consolidated balance sheet of Pacific Ethanol, Inc. and subsidiaries as of December 31, 2014, and the
related consolidated statements of operations, comprehensive income (loss), stockholders' equity, and cash flows for each of the two years
ended December 31, 2014 and 2013. These financial statements are the responsibility of the Company's management. Our responsibility is
to express an opinion on these financial statements based on our audits.
We conducted our audits in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those
standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of
material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial
statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as
evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above present fairly, in all material respects, the financial position of
Pacific Ethanol, Inc. and subsidiaries as of December 31, 2014 and 2013, and the results of their operations and their cash flows for each of
the two years ended December 31, 2014 and 2013, in conformity with U.S. generally accepted accounting principles.
/s/ Hein & Associates LLP
Irvine, California
March 16, 2015, except for the 2014 and 2013 information in Note 5 as to which the date is March 15, 2016
F-4
PACIFIC ETHANOL, INC.
CONSOLIDATED BALANCE SHEETS
(in thousands, except shares and par value)
Current Assets:
ASSETS
Cash and cash equivalents
Accounts receivable, net of allowance for doubtful accounts of $25 and $6, respectively
Inventories
Prepaid inventory
Income tax receivables
Other current assets
$
Total current assets
Property and equipment, net
Other Assets:
Intangible assets, net
Other assets
Total other assets
Total Assets
$
December 31,
2015
2014
52,712 $
61,346
60,820
5,973
10,654
6,437
197,942
464,960
2,678
9,563
12,241
675,143 $
62,084
34,612
18,550
11,595
8,121
2,983
137,945
155,302
2,786
1,863
4,649
297,896
The accompanying notes are an integral part of these consolidated financial statements.
F-5
PACIFIC ETHANOL, INC.
CONSOLIDATED BALANCE SHEETS (CONTINUED)
(in thousands, except shares and par value)
LIABILITIES AND STOCKHOLDERS’ EQUITY
December 31,
2015
2014
Current Liabilities:
Accounts payable – trade
Accrued liabilities
Current portion – capital leases
Current portion – long-term debt
Accrued PE Op Co. purchase
Other current liabilities
Total current liabilities
Long-term debt, net of current portion
Capital leases, net of current portion
Warrant liabilities at fair value
Deferred tax liabilities
Other liabilities
Total Liabilities
Commitments and contingencies (Notes 1, 8, 9 and 15)
Stockholders’ Equity:
Preferred stock, $0.001 par value; 10,000,000 shares authorized:
Series A: 1,684,375 shares authorized; no shares issued and outstanding as of
December 31, 2015 and 2014
Series B: 1,580,790 shares authorized; 926,942 shares issued and outstanding as of
December 31, 2015 and 2014; liquidation preference of $18,075 as of December 31,
2015
Common stock, $0.001 par value; 300,000,000 shares authorized; 38,974,972 and
24,499,534 shares issued and outstanding as of December 31, 2015 and 2014,
respectively
Non-voting common stock, $0.001 par value; 3,553,000 shares authorized; 3,540,132 and
no shares issued and outstanding as of December 31, 2015 and 2014, respectively
Additional paid-in capital
Accumulated other comprehensive income
Accumulated deficit
Total Pacific Ethanol, Inc. stockholders’ equity
Noncontrolling interests
Total stockholders’ equity
Total Liabilities and Stockholders’ Equity
$
$
30,520 $
10,072
4,248
17,003
3,828
7,238
72,909
204,324
4,183
273
1,174
20,736
303,599
–
1
39
4
902,843
1,040
(532,383)
371,544
–
371,544
675,143 $
13,122
6,203
4,077
–
–
2,045
25,447
34,533
2,055
1,986
15,434
459
79,914
–
1
25
–
725,813
–
(512,332)
213,507
4,475
217,982
297,896
The accompanying notes are an integral part of these consolidated financial statements.
F-6
PACIFIC ETHANOL, INC.
CONSOLIDATED STATEMENTS OF OPERATIONS
(in thousands, except per share data)
Net sales
Cost of goods sold
Gross profit
Selling, general and administrative expenses
Asset impairments
Income (loss) from operations
Fair value adjustments and warrant inducements
Interest expense, net
Loss on extinguishments of debt
Other income (expense), net
Income (loss) before provision for income taxes
(Benefit) provision for income taxes
Consolidated net income (loss)
Net (income) loss attributed to noncontrolling interests
Net income (loss) attributed to Pacific Ethanol, Inc.
Preferred stock dividends
Income allocated to participating securities
Income (loss) available to common stockholders
Income (loss) per share, basic
Income (loss) per share, diluted
Weighted-average shares outstanding, basic
Weighted-average shares outstanding, diluted
$
$
$
$
$
$
$
Years Ended December 31,
2014
1,107,412 $
998,927
108,485
17,108
–
91,377
(37,532)
(9,438)
(2,363)
(905)
41,139
15,137
26,002
(4,713)
21,289 $
(1,265) $
(585) $
19,439 $
0.93 $
0.86 $
2015
1,191,176 $
1,183,766
7,410
23,412
1,970
(17,972)
1,641
(12,594)
–
18
(28,907)
(10,034)
(18,873)
87
(18,786) $
(1,265) $
– $
(20,051) $
(0.60) $
(0.60) $
33,173
33,173
20,810
22,669
2013
908,437
875,507
32,930
14,021
–
18,909
(1,013)
(15,671)
(3,035)
(352)
(1,162)
–
(1,162)
381
(781)
(1,265)
–
(2,046)
(0.17)
(0.17)
12,264
12,264
The accompanying notes are an integral part of these consolidated financial statements.
F-7
PACIFIC ETHANOL, INC.
CONSOLIDATED STATEMENTS OF COMPREHENSIVE INCOME (LOSS)
(in thousands)
Consolidated net income (loss)
Net (income) loss attributed to noncontrolling interests
Net income (loss) attributed to Pacific Ethanol, Inc.
Other comprehensive income – net gain arising during the period on defined
benefit pension plans
Comprehensive income (loss) attributed to Pacific Ethanol, Inc.
$
$
(18,873) $
87
(18,786)
1,040
(17,746) $
26,002 $
(4,713)
21,289
–
21,289 $
(1,162)
381
(781)
–
(781)
Years Ended December 31,
2014
2015
2013
The accompanying notes are an integral part of these consolidated financial statements.
F-8
Balances, January 1, 2013
Stock-based compensation
expense – restricted
stock and options to
employees and directors,
net of cancellations
Shares issued on
convertible notes
Shares issued on senior
notes
Warrant exercises
Shares issued as payment of
prior unpaid Series B
preferred dividends
Purchases of interests in PE
Op Co.
Preferred stock dividends
Net loss
Balances, December 31,
2013
Stock-based compensation
expense – restricted
stock issued to
employees and directors,
net of cancellations and
tax
Issuance of common stock
Warrant exercises
Shares issued as payment of
prior unpaid Series B
preferred dividends
Purchases of interests in PE
Op Co.
Tax impact of purchases of
interests in PE Op Co.
Preferred stock dividends
Net income
Balances, December 31,
2014
Stock-based compensation
expense – restricted
stock and options to
employees and directors,
net of cancellations and
tax
Warrant exercises
Shares issued in Aventine
acquisition
Pension plan adjustment
Purchases of interests in PE
Op Co.
Preferred stock dividends
Net loss
Balances, December 31,
2015
PACIFIC ETHANOL, INC.
CONSOLIDATED STATEMENTS OF STOCKHOLDERS’ EQUITY
(in thousands)
Preferred Stock
Common Stock
Additional
Paid-In
Shares
Amount
1
927 $
Shares
Amount
Capital
9,789 $
10 $
582,861 $
Accumulated
Deficit
(530,310) $
Accum. Other
Comprehensive
Income
Non-
Controlling
Interests
Total
– $
20,345 $ 72,907
–
–
–
–
–
–
–
–
–
–
–
–
–
–
–
–
600
4,446
500
280
511
–
–
–
1
4
–
–
1
–
–
–
1,696
18,551
2,000
2,317
2,192
11,940
–
–
–
–
–
–
–
–
(1,265)
(781)
–
–
–
–
–
–
–
–
–
1,697
–
18,555
–
–
2,000
2,317
–
2,193
(14,281)
–
(381)
(2,341)
(1,265)
(1,162)
927 $
1
16,126 $
16 $
621,557 $
(532,356) $
– $
5,683 $ 94,901
–
–
–
–
–
–
–
–
–
–
–
–
–
–
–
–
90
1,750
6,413
120
–
–
–
–
–
2
6
1
–
–
–
–
1,890
26,071
85,156
1,462
(79)
(10,244)
–
–
–
–
–
–
–
–
(1,265)
21,289
–
–
–
–
–
–
–
–
–
–
–
1,890
26,073
85,162
–
1,463
(5,921)
(6,000)
–
–
4,713
(10,244)
(1,265)
26,002
927 $
1
24,499 $
25 $
725,813 $
(512,332)
– $
4,475 $ 217,982
–
–
–
–
–
–
–
–
–
216
42
–
–
17,758
–
–
–
–
–
–
–
–
–
18
–
–
–
–
1,475
440
174,555
–
560
–
–
–
–
–
–
–
(1,265)
(18,786)
–
–
–
1,040
–
–
–
–
–
1,475
440
–
–
174,573
1,040
(4,388)
–
(87)
(3,828)
(1,265)
(18,873)
927 $
1
42,515 $
43 $
902,843 $
(532,383) $
1,040 $
– $ 371,544
The accompanying notes are an integral part of these consolidated financial statements.
F-9
PACIFIC ETHANOL, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
(in thousands)
For the Years Ended December 31,
2014
2015
2013
$
(18,873) $
26,002 $
(1,162)
Operating Activities:
Consolidated net income (loss)
Adjustments to reconcile consolidated net income (loss) to
cash provided by (used in) operating activities:
Depreciation and amortization of intangibles
Fair value adjustments
Loss on extinguishments of debt
Asset impairments
Deferred income taxes
Inventory valuation
Change in fair value on commodity derivative instruments
Amortization of deferred financing costs
Amortization of debt discounts
Noncash compensation
Bad debt expense (recovery)
Loss on disposals of assets
Interest expense added to plant owners’ debt
Interest on convertible debt paid with stock
Changes in operating assets and liabilities, net of effects from acquisition
of Aventine:
Accounts receivable
Inventories
Prepaid expenses and other assets
Prepaid inventory
Accounts payable and accrued expenses
Net cash provided by (used in) operating activities
Investing Activities:
Additions to property and equipment
Net cash from acquisition of Aventine
Purchase of cash collateralized letters of credit
Purchases of PE Op Co. ownership interests
Net cash used in investing activities
$
$
$
F-10
23,632
(1,641)
–
1,970
(2,023)
509
542
272
716
2,019
(354)
–
–
–
(15,950)
(13,296)
58
5,622
(10,045)
(26,842) $
(20,507) $
18,756
(4,574)
–
(6,325) $
13,186
35,260
2,363
–
5,129
970
808
1,217
1,815
1,838
(42)
439
–
–
726
3,866
(7,818)
720
1,853
88,332 $
(13,259) $
–
–
(6,000)
(19,259) $
12,136
227
3,035
–
–
8
1,821
2,009
1,272
1,724
169
–
4,745
111
(9,414)
(2,150)
(2,340)
(6,893)
8,889
14,187
(3,993)
–
–
(2,340)
(6,333)
PACIFIC ETHANOL, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
(in thousands)
Financing Activities:
Net proceeds from common stock and warrants
Proceeds from warrant exercises
Proceeds from senior notes and warrants
Proceeds from convertible notes and warrants
Proceeds from plant borrowings
Net proceeds (payments) on Kinergy’s line of credit
Payments on plant borrowings
Purchase of plant owners’ debt
Payments on senior unsecured notes
Debt issuance costs
Payment on related party note
Preferred stock dividend payments
Payments on capital leases
Net cash provided by (used in) financing activities
Net increase (decrease) in cash and cash equivalents
Cash and cash equivalents at beginning of period
Cash and cash equivalents at end of period
Supplemental Information:
Interest paid
Income taxes (received) paid
Noncash financing and investing activities:
Preferred stock dividends paid in common stock
Accrued payment for ownership positions of PE Op Co.
Capital leases added to plant and equipment
Original discount on senior and convertible debt
Purchase of sugar inventory with note
Reclass of warrant liability to equity upon exercises
Reclass of noncontrolling interest to APIC upon acquisitions of ownership
interests in PE Op Co.
Debt extinguished with issuance of common stock
Common stock issued in Aventine acquisition (see Note 2)
For the Years Ended December 31,
2014
2015
2013
$
$
$
$
$
$
$
$
$
$
$
$
$
$
– $
368
–
–
–
43,584
(13,833)
–
–
–
–
(1,265)
(5,059)
23,795 $
(9,372)
62,084
52,712 $
26,073 $
43,676
–
–
–
(1,512)
(39,792)
(17,038)
(13,984)
(438)
(750)
(3,459)
(4,916)
(12,140) $
56,933
5,151
62,084 $
11,685 $
(5,710) $
6,596 $
17,930 $
– $
3,828 $
1,864 $
– $
– $
72 $
560 $
– $
174,573 $
1,463 $
– $
– $
– $
– $
41,486 $
(79) $
– $
– $
–
2,064
22,192
14,000
7,000
(669)
(17,115)
(27,088)
(6,208)
(1,560)
–
(1,265)
(1,640)
(10,289)
(2,435)
7,586
5,151
7,515
–
2,192
–
12,829
8,558
5,000
260
11,940
16,000
–
The accompanying notes are an integral part of these consolidated financial statements.
F-11
PACIFIC ETHANOL, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1. ORGANIZATION AND SIGNIFICANT ACCOUNTING POLICIES.
Organization and Business – The consolidated financial statements include, for all periods presented, the accounts of Pacific Ethanol, Inc.,
a Delaware corporation (“Pacific Ethanol”), and its direct and indirect subsidiaries (collectively, the “Company”), including its wholly-
owned subsidiaries, Kinergy Marketing LLC, an Oregon limited liability company (“Kinergy”), Pacific Ag. Products, LLC, a California
limited liability company (“PAP”) and PE Op Co., a Delaware corporation (“PE Op Co.”). The Company had a 100% and 96% ownership
interest in PE Op Co. as of December 31, 2015 and 2014, respectively.
The Company’s acquisition of Aventine Renewable Energy Holdings, Inc. (now, Pacific Ethanol Central, LLC, a Delaware limited liability
company, “Aventine”) was consummated on July 1, 2015, and as a result, the Company’s consolidated financial statements include the
results of Aventine only as of and for the six months ended December 31, 2015.
The Company is a leading producer and marketer of low-carbon renewable fuels in the United States. The Company’s four ethanol plants
in the Western United States (together with their respective holding companies, the “Pacific Ethanol West Plants”) are located in close
proximity to both feed and ethanol customers and thus enjoy unique advantages in efficiency, logistics and product pricing. These plants
produce among the lowest-carbon ethanol produced in the United States due to low energy use in production.
With the addition of four Midwestern ethanol plants in July 2015 as a result of the Company’s acquisition of Aventine, the Company now
has a combined ethanol production capacity of 515 million gallons per year, markets, on an annualized basis, over 800 million gallons of
ethanol, and produces, on an annualized basis, over one million tons of co-products such as wet and dry distillers grains, wet and dry corn
gluten feed, condensed distillers solubles, corn gluten meal, corn germ, distillers yeast and CO2. The Company’s four ethanol plants in the
Midwest (together with their respective holding companies, the “Pacific Ethanol Central Plants”) are located in the heart of the Corn Belt,
benefit from low-cost and abundant feedstock production and allow for access to many additional domestic markets. In addition, the
Company’s ability to load unit trains from these facilities in the Midwest allows for greater access to international markets.
As of December 31, 2015, all eight facilities were operating. On April 30, 2014, the Company’s previously idled facility in Madera,
California commenced producing ethanol. As market conditions change, the Company may increase, decrease or idle production at one or
more operational facilities or resume operations at any idled facility.
Basis of Presentation – The consolidated financial statements and related notes have been prepared in accordance with accounting
principles generally accepted in the United States (“GAAP”) and include the accounts of the Company. All significant intercompany
accounts and transactions have been eliminated in consolidation.
Segments – A segment is a component of an enterprise whose operating results are regularly reviewed by the enterprise’s chief operating
decision maker to make decisions about resources to be allocated to the segment and assess its performance, and for which discrete financial
information is available. The Company determines and discloses its segments in accordance with the Financial Accounting Standards
Board’s (“FASB”) Accounting Standards Codification Section 280, Segment Reporting (“ASC 280”), which defines how to determine
segments. The Company reports its financial and operating performance in two reportable segments: (1) ethanol production, which includes
the production and sale of ethanol and co-products, with all eight of the Company’s production facilities aggregated, and (2) marketing and
distribution, which includes marketing and merchant trading for Company-produced ethanol and co-products and third-party ethanol.
Cash and Cash Equivalents – The Company considers all highly-liquid investments with an original maturity of three months or less to be
cash equivalents.
F-12
PACIFIC ETHANOL, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Accounts Receivable and Allowance for Doubtful Accounts – Trade accounts receivable are presented at face value, net of the allowance
for doubtful accounts. The Company sells ethanol to gasoline refining and distribution companies, sells distillers grains and other feed co-
products to dairy operators and animal feedlots and sells corn oil to poultry and biodiesel customers generally without requiring collateral.
Due to a limited number of ethanol customers, the Company had significant concentrations of credit risk from sales of ethanol as of
December 31, 2015 and 2014, as described below.
The Company maintains an allowance for doubtful accounts for balances that appear to have specific collection issues. The collection
process is based on the age of the invoice and requires attempted contacts with the customer at specified intervals. If, after a specified
number of days, the Company has been unsuccessful in its collection efforts, a bad debt allowance is recorded for the balance in question.
Delinquent accounts receivable are charged against the allowance for doubtful accounts once uncollectibility has been determined. The
factors considered in reaching this determination are the apparent financial condition of the customer and the Company’s success in
contacting and negotiating with the customer. If the financial condition of the Company’s customers were to deteriorate, resulting in an
impairment of ability to make payments, additional allowances may be required.
Of the accounts receivable balance, approximately $42,049,000 and $28,427,000 at December 31, 2015 and 2014, respectively, were used
as collateral under Kinergy’s operating line of credit. The allowance for doubtful accounts was $25,000 and $6,000 as of December 31,
2015 and 2014, respectively. The Company recorded a bad debt recovery of $354,000 and $42,000, and a bad debt expense of $169,000 for
the years ended December 31, 2015, 2014 and 2013, respectively. The Company does not have any off-balance sheet credit exposure
related to its customers.
Concentration Risks – Credit risk represents the accounting loss that would be recognized at the reporting date if counterparties failed
completely to perform as contracted. Concentrations of credit risk, whether on- or off-balance sheet, that arise from financial instruments
exist for groups of customers or counterparties when they have similar economic characteristics that would cause their ability to meet
contractual obligations to be similarly affected by changes in economic or other conditions described below. Financial instruments that
subject the Company to credit risk consist of cash balances maintained in excess of federal depository insurance limits and accounts
receivable, which have no collateral or security. The Company has not experienced any significant losses in such accounts and believes that
it is not exposed to any significant risk of loss of cash.
The Company sells fuel-grade ethanol to gasoline refining and distribution companies. The Company sold ethanol to customers
representing 10% or more of the Company’s total net sales, as follows.
Customer A
Customer B
Customer C
Customer D
2015
Years Ended December 31,
2014
2013
15%
12%
12%
6%
20%
20%
11%
8%
23%
17%
6%
12%
The Company had accounts receivable due from these customers totaling $21,358,000 and $20,706,000, representing 35% and 60% of total
accounts receivable, as of December 31, 2015 and 2014, respectively.
F-13
PACIFIC ETHANOL, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
The Company purchases fuel-grade ethanol for resale and corn, its largest cost component in producing ethanol, from its suppliers. The
Company purchased ethanol and corn from suppliers representing 10% or more of the Company’s total purchases for the purchase and
production of ethanol, as follows:
Supplier A
Supplier B
Supplier C
2015
Years Ended December 31,
2014
2013
19%
13%
9%
26%
12%
15%
37%
8%
14%
Approximately 29% of the Company’s employees are covered by a collective bargaining agreement.
Inventories – Inventories consisted primarily of bulk ethanol, corn, co-products, Low-Carbon Fuel Standard (“LCFS”) credits, beet sugar
and unleaded fuel, and are valued at the lower-of-cost-or-net realizable value, with cost determined on a first-in, first-out basis. Inventory
balances consisted of the following (in thousands):
Finished goods
LCFS credits
Raw materials
Work in progress
Other
Total
December 31,
2015
2014
$
$
31,153 $
6,957
9,891
11,121
1,698
60,820 $
10,143
975
2,695
3,274
1,463
18,550
Property and Equipment – Property and equipment are stated at cost. Depreciation is computed using the straight-line method over the
following estimated useful lives:
Buildings
Facilities and plant equipment
Other equipment, vehicles and furniture
40 years
10 – 25 years
5 – 10 years
The cost of normal maintenance and repairs is charged to operations as incurred. Significant capital expenditures that increase the life of an
asset are capitalized and depreciated over the estimated remaining useful life of the asset. The cost of fixed assets sold, or otherwise
disposed of, and the related accumulated depreciation or amortization are removed from the accounts, and any resulting gains or losses are
reflected in current operations.
Intangible Assets – The Company amortizes intangible assets with definite lives using the straight-line method over their established lives,
generally 2-10 years. Additionally, the Company tests these assets with established lives for impairment if conditions exist that indicate that
carrying values may not be recoverable. Possible conditions leading to the unrecoverability of these assets include changes in market
conditions, changes in future economic conditions or changes in technological feasibility that impact the Company’s assessments of future
operations. The Company assesses indefinite-lived intangible assets for impairment annually, or more frequently if circumstances indicate
impairment may have occurred. If the carrying value of an indefinite-lived intangible asset exceeds its fair value, an impairment loss is
recognized in an amount equal to that excess. If the Company determines that an impairment charge is needed, the charge will be recorded
as asset impairment in the consolidated statements of operations.
Deferred Financing Costs – Deferred financing costs are costs incurred to obtain debt financing, including all related fees, and are
amortized as interest expense over the term of the related financing using the straight-line method, which approximates the interest rate
method. Amortization of deferred financing costs was $272,000, $779,000 and $2,009,000 for the years ended December 31, 2015, 2014
and 2013, respectively. Unamortized deferred financing costs were approximately $462,000 at December 31, 2015 and are recorded in
other assets in the consolidated balance sheets.
F-14
PACIFIC ETHANOL, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Derivative Instruments and Hedging Activities – Derivative transactions, which can include exchange-traded forward contracts and futures
positions on the New York Mercantile Exchange or the Chicago Board of Trade, are recorded on the balance sheet as assets and liabilities
based on the derivative’s fair value. Changes in the fair value of derivative contracts are recognized currently in income unless specific
hedge accounting criteria are met. If derivatives meet those criteria, and hedge accounting is elected, effective gains and losses are deferred
in accumulated other comprehensive income (loss) and later recorded together with the hedged item in consolidated income (loss). For
derivatives designated as a cash flow hedge, the Company formally documents the hedge and assesses the effectiveness with associated
transactions. The Company has designated and documented contracts for the physical delivery of commodity products to and from
counterparties as normal purchases and normal sales.
Revenue Recognition – The Company recognizes revenue when it is realized or realizable and earned. The Company considers revenue
realized or realizable and earned when there is persuasive evidence of an arrangement, delivery has occurred, the sales price is fixed or
determinable, and collection is reasonably assured. The Company derives revenue primarily from sales of ethanol and related co-products.
The Company recognizes revenue when title transfers to its customers, which is generally upon the delivery of these products to a
customer’s designated location. These deliveries are made in accordance with sales commitments and related sales orders entered into
either verbally or in writing with customers. The sales commitments and related sales orders provide quantities, pricing and conditions of
sales. In this regard, the Company engages in three basic types of revenue generating transactions:
·
·
·
As a producer. Sales as a producer consist of sales of the Company’s inventory produced at its plants.
As a merchant. Sales as a merchant consist of sales to customers through purchases from third-party suppliers in which the
Company may or may not obtain physical control of the ethanol or co-products, in which shipments are directed from the
Company’s suppliers to its terminals or direct to its customers but for which the Company accepts the risk of loss in the
transactions.
As an agent. Sales as an agent consist of sales to customers through purchases from third-party suppliers in which the risks and
rewards of inventory ownership remain with third-party suppliers and the Company receives a predetermined service fee under
these transactions.
Revenue from sales of third-party ethanol and co-products is recorded net of costs when the Company is acting as an agent between a
customer and a supplier and gross when the Company is a principal to the transaction. The Company recorded $1,510,000, $1,908,000 and
$1,928,000 in net sales when acting as an agent for the years ended December 31, 2015, 2014 and 2013, respectively. Several factors are
considered to determine whether the Company is acting as an agent or principal, most notably whether the Company is the primary obligor
to the customer and whether the Company has inventory risk and related risk of loss or whether the Company adds meaningful value to the
supplier’s product or service. Consideration is also given to whether the Company has latitude in establishing the sales price or has credit
risk, or both. When the Company acts as an agent, it recognizes revenue on a net basis or recognizes its predetermined fees and any
associated freight, based upon the amount of net revenues retained in excess of amounts paid to suppliers.
The Company records revenues based upon the gross amounts billed to its customers in transactions where the Company acts as a producer
or a merchant and obtains title to ethanol and its co-products and therefore owns the product and any related, unmitigated inventory risk for
the ethanol, regardless of whether the Company actually obtains physical control of the product.
Shipping and Handling Costs – Shipping and handling costs are classified as a component of cost of goods sold in the accompanying
consolidated statements of operations.
F-15
PACIFIC ETHANOL, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
California Ethanol Producer Incentive Program – The Company participated in the California Ethanol Producer Incentive Program
(“CEPIP”) through the Pacific Ethanol West Plants located in California since the program’s inception in 2010. The CEPIP was a program
to provide funds to an eligible California facility—up to $0.25 per gallon of production—when current production corn crush spreads,
measured as the difference between specified ethanol and corn index prices, were less than prescribed levels determined by the California
Energy Commission. As of December 31, 2014, the program is no longer funded. For any month in which a payment was made by the
CEPIP, the Company would be required to reimburse the funds within the subsequent five years from each payment date, if the corn crush
spread exceeded $1.00 per gallon. In 2010 and 2011, the Company received an aggregate of $2,000,000 in CEPIP funds. Since these funds
were provided to subsidize low production costs and encourage eligible facilities to either continue production or start up production in low
margin environments, the Company recorded the proceeds as a credit to cost of goods sold in the periods the funds were received. For the
years ended December 31, 2014 and 2013, the Company recorded aggregate amounts of $1,878,000 and $122,000 as cost of goods sold,
respectively, in respect of the Company’s repayments under the CEPIP to the California Energy Commission.
Stock-Based Compensation – The Company accounts for the cost of employee services received in exchange for the award of equity
instruments based on the fair value of the award, determined on the date of grant. The expense is to be recognized over the period during
which an employee is required to provide services in exchange for the award. The Company estimates forfeitures at the time of grant and
makes revisions, if necessary, in the second quarter of each year if actual forfeitures differ from those estimates. Based on historical
experience, the Company estimated future unvested forfeitures at 8% for the years ended December 31, 2015, 2014 and 2013. The
Company recognizes stock-based compensation expense as a component of selling, general and administrative expenses in the consolidated
statements of operations.
Impairment of Long-Lived Assets – The Company assesses the impairment of long-lived assets, including property and equipment,
internally developed software and purchased intangibles subject to amortization, when events or changes in circumstances indicate that the
fair value of assets could be less than their net book value. In such event, the Company assesses long-lived assets for impairment by first
determining the forecasted, undiscounted cash flows the asset is expected to generate plus the net proceeds expected from the sale of the
asset. If this amount is less than the carrying value of the asset, the Company will then determine the fair value of the asset. An impairment
loss would be recognized when the fair value is less than the related asset’s net book value, and an impairment expense would be recorded
in the amount of the difference. Forecasts of future cash flows are judgments based on the Company’s experience and knowledge of its
operations and the industries in which it operates. These forecasts could be significantly affected by future changes in market conditions,
the economic environment, including inflation, and purchasing decisions of the Company’s customers.
Provision for Income Taxes – Income taxes are accounted for under the asset and liability approach, where deferred tax assets and liabilities
are determined based on differences between financial reporting and tax basis of assets and liabilities, and are measured using enacted tax
rates and laws that are expected to be in effect when the differences reverse. Valuation allowances are established when necessary to reduce
deferred tax assets to the amounts expected to be realized.
The Company accounts for uncertainty in income taxes using a two-step approach to recognizing and measuring uncertain tax positions.
The first step is to evaluate the tax position for recognition by determining whether it is more likely than not that the position will be
sustained on audit, including resolution of related appeals or litigation processes, if any. The second step is to measure the tax benefit as the
largest amount which is more than 50% likely of being realized upon ultimate settlement. An uncertain tax position is considered
effectively settled on completion of an examination by a taxing authority if certain other conditions are satisfied. Should the Company incur
interest and penalties relating to tax uncertainties, such amounts would be classified as a component of interest expense, net and other
income (expense), net, respectively. The Company adopted early the provisions of ASU 2015-17, whereby all deferred tax assets and
liabilities are classified as noncurrent in the Company’s consolidated balance sheets.
F-16
PACIFIC ETHANOL, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
The Company files a consolidated federal income tax return. This return includes all entities 80% or more owned by the Company as well
as the Company’s pro-rata share of taxable income from pass-through entities in which the Company holds an ownership interest. State tax
returns are filed on a consolidated, combined or separate basis depending on the applicable laws relating to the Company and its
subsidiaries.
Income (Loss) Per Share – Basic income (loss) per share is computed on the basis of the weighted-average number of shares of common
stock outstanding during the period. Preferred dividends are deducted from net income (loss) attributed to Pacific Ethanol, Inc. and are
considered in the calculation of income (loss) available to common stockholders in computing basic income (loss) per share. Common
stock equivalents to the preferred stock are considered participating securities and are also included in this calculation when dilutive. For
the year ended December 31, 2014, the calculation has been revised from the calculation previously reported to reflect the participating
securities.
The following tables compute basic and diluted earnings per share (in thousands, except per share data):
Net loss attributed to Pacific Ethanol
Less: Preferred stock dividends
Basic and Diluted loss per share:
Loss available to common stockholders
Net income attributed to Pacific Ethanol
Less: Preferred stock dividends
Less: Allocated to participating securities
Basic income per share:
Income available to common stockholders
Add: Warrants
Diluted income per share:
Income available to common stockholders
Net loss attributed to Pacific Ethanol
Less: Preferred stock dividends
Basic and diluted loss per share:
Loss available to common stockholders
Loss
Numerator
Year Ended December 31, 2015
Shares
Denominator
Per-Share
Amount
$
(18,786)
(1,265)
$
(20,051)
33,173 $
(0.60)
Income
Numerator
Year Ended December 31, 2014
Shares
Denominator
Per-Share
Amount
$
21,289
(1,265)
(585)
$
19,439
–
20,810 $
1,859
0.93
$
19,439
22,669 $
0.86
Loss
Numerator
Year Ended December 31, 2013
Shares
Denominator
Per-Share
Amount
$
$
(781)
(1,265)
(2,046)
12,264 $
(0.17)
F-17
PACIFIC ETHANOL, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
There were an aggregate of 817,000, 660,000 and 1,357,000 potentially dilutive shares from convertible securities outstanding as of
December 31, 2015, 2014 and 2013, respectively. These convertible securities were not considered in calculating diluted income (loss) per
common share for the years ended December 31, 2015, 2014 and 2013 as their effect would be anti-dilutive.
Financial Instruments – The carrying values of cash and cash equivalents, accounts receivable, accounts payable and accrued liabilities are
reasonable estimates of their fair values because of the short maturity of these items. The Company recorded at fair value its warrants and
conversion features of its convertible notes. The Company believes the carrying value of its long-term debt approximates fair value because
the interest rates on these instruments are variable.
Employment-related Benefits – Employment-related benefits associated with pensions and postretirement health care are expensed based on
actuarial analysis. The recognition of expense is affected by estimates made by management, such as discount rates used to value certain
liabilities, investment rates of return on plan assets, increases in future wage amounts and future health care costs. Discount rates are
determined based on a spot yield curve that includes bonds with maturities that match expected benefit payments under the plan.
Estimates and Assumptions – The preparation of the consolidated financial statements in conformity with GAAP requires management to
make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities
at the date of the financial statements and the reported amounts of revenues and expenses during the reporting period. Significant estimates
are required as part of determining the fair value of warrants and conversion features, allowance for doubtful accounts, net realizable value
of inventory, estimated lives of property and equipment and intangibles, long-lived asset impairments, valuation allowances on deferred
income taxes and the potential outcome of future tax consequences of events recognized in the Company’s financial statements or tax
returns, and the valuation of assets acquired and liabilities assumed as a result of business combinations. Actual results and outcomes may
materially differ from management’s estimates and assumptions.
Subsequent Events – Management evaluates, as of each reporting period, events or transactions that occur after the balance sheet date
through the date that the financial statements are issued for either disclosure or adjustment to the consolidated financial results.
Reclassifications – Certain prior year amounts have been reclassified to conform to the current presentation. Such reclassification had no
effect on the consolidated net income (loss) reported in the consolidated statements of operations.
Recent Accounting Pronouncements – In February 2016, the FASB issued new guidance on accounting for leases. Under the new guidance,
lessees will be required to recognize the following for all leases (with the exception of short-term leases) at the commencement date: (1) a
lease liability, which is a lessee’s obligation to make lease payments arising from a lease, measured on a discounted cash flow basis; and (2)
a “right of use” asset, which is an asset that represents the lessee’s right to use the specified asset for the lease term. Under the new
guidance, lessor accounting is largely unchanged, with some minor exceptions. Lessees will no longer be provided with a source of off-
balance sheet financing for other than short-term leases. The standard is effective for public companies for annual reporting periods
beginning after December 15, 2019, and for interim periods beginning after December 15, 2020. Early adoption is permitted. The Company
has several operating leases that may be impacted by this guidance. The Company is currently evaluating the impact of the adoption of this
accounting standard on its consolidated results of operations and financial condition.
F-18
PACIFIC ETHANOL, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
In November 2015, the FASB issued new guidance that requires deferred tax liabilities and assets to be classified as noncurrent in a
classified balance sheet. The guidance is effective for public companies for annual reporting periods beginning after December 15, 2016,
including interim periods within that reporting period. Early adoption is permitted. For the year ended December 31, 2015, the Company
adopted the guidance.
In May 2014, the FASB issued new guidance on the recognition of revenue. The guidance states that an entity should recognize revenue to
depict the transfer of promised goods or services to customers in an amount that reflects the consideration to which the entity expects to be
entitled in exchange for those goods or services. The standard was originally effective for annual reporting periods beginning after
December 15, 2016, including interim periods within that reporting period, but has been further deferred one year. The Company’s
adoption begins with the first fiscal quarter of fiscal year 2018. The Company is currently evaluating the impact of the adoption of this
accounting standard update on its consolidated results of operations and financial condition.
In April 2015, the FASB issued new guidance on presentation of debt issuance costs. Historically, entities have presented debt issuance
costs as an asset. Under the new guidance, effective for fiscal years beginning after December 31, 2015, debt issuance costs will be
reclassified as a deduction to the carrying amount of the related debt balance. The guidance does not change any of the Company’s other
debt recognition or disclosure. The Company will adopt the guidance beginning January 1, 2016.
In July 2015, the FASB issued new guidance on simplifying the measurement of inventory. Under the new guidance, entities are required
to measure most inventory at the lower of cost and net realizable value, thereby simplifying the current guidance under which an entity must
measure inventory at the lower of cost or market. This guidance is effective prospectively for fiscal years beginning after December 15,
2016. Early adoption is permitted. The Company has adopted the guidance with no material impact on its results of operations or financial
condition.
In September 2015, the FASB issued new guidance on simplifying the accounting for measurement-period adjustments. Under the new
guidance, an acquirer must recognize adjustments to provisional amounts that are identified during the measurement period in the reporting
period in which the adjustment amounts are determined. The guidance also requires acquirers to present separately on the face of the
statement of operations or disclose in the notes, the portion of the amount recorded in current-period earnings by line item that would have
been recorded in previous reporting periods if the adjustment to the provisional amounts had been recognized as of the acquisition date.
The guidance is effective for fiscal years beginning after December 31, 2015, applied prospectively. Early adoption is permitted. The
Company will consider early adoption in future periods related to its current measurement period for its acquisition of Aventine.
2. PACIFIC ETHANOL CENTRAL PLANTS.
On December 30, 2014, the Company entered into a definitive merger agreement with Aventine, a Midwest ethanol producer, under which
the Company agreed to acquire Aventine and, therefore indirectly, the Pacific Ethanol Central Plants, through a stock-for-stock merger. The
acquisition closed on July 1, 2015 and the Company issued an aggregate of 17.8 million shares of common stock and non-voting common
stock for 100% of the outstanding shares of common stock of Aventine. The common stock and non-voting common stock issued as
consideration had an aggregate fair value of $174.6 million, based on the closing market price of the Company’s common stock on the
acquisition date.
F-19
PACIFIC ETHANOL, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
The Company believes the Aventine acquisition is resulting in a number of synergies and strategic advantages. The Company believes the
acquisition has spread commodity and basis price risks across diverse markets and products, assisting in its efforts to optimize margin
management; improve its hedging opportunities with a greater correlation to the liquid physical and paper markets in Chicago; and increase
its flexibility and alternatives in feedstock procurement for its Midwestern and Western production facilities. The acquisition also expands
the Company’s marketing reach into new markets and extends its mix of co-products. The Company believes the acquisition will enable it
to have deeper market insight and engagement in major ethanol and feed markets outside the Western United States, thereby improving
pricing opportunities; allows the Company to establish access to markets in 48 states for ethanol sales and access many markets with
ethanol and co-product sales reaching domestic and international customers; and enable it to use its more diverse mix of co-products to
generate strong co-product returns. In addition, the acquisition also increases the Company’s combined annual ethanol production capacity
to 515 million gallons per year and annualized ethanol marketing volume to over 800 million gallons, including Aventine’s historical
volumes.
The Company has recognized the following allocation of the purchase price at fair values. The Company has included in the following
allocation its estimated fair values for certain operating lease agreements and open commitments. The fair-value determination of long-term
debt is based on the interest rate environment at the acquisition date. The fair value allocation related to deferred taxes is provisional and
incomplete as the Company is finalizing its review of deferred taxes. The Company expects to complete its review by mid-2016. Based on
the current allocation, the Company has recorded an immaterial bargain purchase gain on the acquisition.
Based upon these fair value estimates, the purchase price consideration allocation is as follows (in thousands):
Cash and cash equivalents
Accounts receivable
Inventory
Other current assets
Total current assets
Property and equipment
Net deferred tax assets
Other assets
Total assets acquired
Accounts payable and accrued liabilities
Long-term debt - revolvers
Long-term debt - term debt
Pension plan liabilities
Other non-current liabilities
Total liabilities
Net assets acquired
F-20
$
$
$
$
$
18,756
10,430
29,483
8,304
66,973
312,781
12,159
750
392,663
27,780
13,721
142,744
8,518
25,327
218,090
174,573
PACIFIC ETHANOL, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
The contractual amount due on the accounts receivable acquired was $10.8 million, of which $0.4 million is expected to be uncollectible.
As discussed in Note 15, the Company recorded $3.7 million, included in other noncurrent liabilities above, as a litigation contingency
related to certain legal cases for amounts that were probable and estimable as of the acquisition date. Subsequent to the acquisition date, the
Company paid approximately $0.4 million of this amount.
The following table presents unaudited pro forma financial information assuming the acquisition occurred on January 1, 2014 (in thousands
except per share data).
Net sales – pro forma
Cost of goods sold – pro forma
Selling, general and administrative expenses – pro forma
Net income (loss) – pro forma
Diluted net income (loss) per share – pro forma
Diluted weighted-average shares – pro forma
Years Ended December 31,
2014
2015
$
$
$
$
$
1,484,676 $
1,469,512 $
34,735 $
(34,136) $
(0.81) $
42,053
1,695,440
1,528,387
47,796
12,596
0.31
40,428
The effects of the initial step-up of inventories and open contracts in the aggregate of $8.7 million recorded during 2015 were excluded in
the above amounts for 2015, and instead recorded for the year 2014, as if the acquisition had occurred on January 1, 2014. For the six
months ended December 31, 2015, Aventine contributed $299.0 million in net sales and $16.3 million in pre-tax loss. For the years ended
December 31, 2015 and 2014, the Company recorded approximately $1.4 million and $0.7 million, respectively, in costs associated with
the Aventine acquisition. These costs are reflected in selling, general and administrative expenses on the Company’s consolidated
statements of operations, but were excluded from the amounts above.
3. PACIFIC ETHANOL WEST PLANTS.
Consolidation of PE Op Co. – The Company concluded that from PE Op Co.’s inception to the time the Company became a 91% owner,
PE Op Co. was a variable interest entity (“VIE”) because the other owners of PE Op Co., due to the Company’s involvement through the
contractual arrangements discussed below, at all times lacked the power to direct the activities that most significantly impacted PE Op
Co.’s economic performance. However, since the Company’s acquisition in December 2013 that brought its ownership interest in PE Op
Co. to 91%, the Company has obtained and maintained sufficient control, both by way of agreements as well as based on structural control
of PE Op Co., such that PE Op Co. is no longer considered a VIE, and as such the Company consolidates PE Op Co. under the voting
rights model. On April 1, 2014, PE Op Co. was converted from a Delaware limited liability company to a Delaware C-corporation and
changed its name from New PE Holdco LLC to PE Op Co.
In August 2014, the Company purchased an additional 5% of the ownership interests in PE Op Co. for $6,000,000 in cash, bringing its total
ownership interest to 96% as of December 31, 2014.
In May 2015, the Company purchased the remaining 4% ownership interest in PE Op Co. that it did not own, giving it 100% ownership of
PE Op Co.
Because the Company has a controlling financial interest in PE Op Co., it did not record any gain or loss on these purchases, but instead
reduced the amount of noncontrolling interest on the consolidated balance sheets by an aggregate of $4,388,000, $5,921,000 and
$14,281,000 and recorded the difference of $560,000, $79,000 and $11,940,000 for the years ended December 31, 2015, 2014 and 2013,
respectively, which represents the fair value of these purchases above the price paid by the Company, to additional paid-in capital on the
consolidated balance sheets. Further, in 2014, the Company recorded a deferred tax liability related to its cumulative adjustments to
additional paid-in capital of $10,244,000.
F-21
PACIFIC ETHANOL, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
The Company’s acquisition of its ownership interest in PE Op Co. does not impact the Company’s rights or obligations under any of the
agreements described below. Further, creditors of PE Op Co. or its subsidiaries do not have recourse to the Company. Since its acquisition,
the Company has not provided any additional support to PE Op Co. beyond the terms of the agreements described below.
The Company, directly or through one of its subsidiaries, has entered into the management and marketing agreements described below.
4.
INTERCOMPANY AGREEMENTS.
Affiliate Management Agreement – Pacific Ethanol, Inc. (the “Parent”) entered into an Affiliate Management Agreement (“AMA”) with its
operating subsidiaries, namely Kinergy, PAP, the Pacific Ethanol West Plants and the Pacific Ethanol Central Plants, effective July 1, 2015,
under which the Company agreed to provide operational and administrative and staff support services. These services generally include, but
are not limited to, administering the subsidiaries’ compliance with their credit agreements and performing billing, collection, record
keeping and other administrative and ministerial tasks. The Parent agreed to supply all labor and personnel required to perform its services
under the AMA, including the labor and personnel required to operate and maintain the production facilities and marketing activities. These
services are billed at a predetermined amount per subsidiary each month plus out of pocket costs such as employee wages and benefits.
The AMA had an initial term of one year and automatic successive one year renewal periods. In addition to typical conditions for a party to
terminate the agreement prior to its expiration, the Parent may terminate the AMA, and any subsidiary may terminate the AMA, at any time
by providing at least 90 days prior notice of such termination.
The Parent recorded revenues of approximately $8.1 million related to the AMA for the year ended December 31, 2015. These amounts
have been eliminated upon consolidation. As the Parent was in the process of integrating the Pacific Ethanol Central Plants in the last half
of 2015, no such fees were charged to the Pacific Ethanol Central Plants, but such fees commenced in January 2016.
Prior Plant Management Agreement – Prior July 1, 2015, the Parent entered into a Plant Management Agreement (“PMA”) with the
Pacific Ethanol West Plants under which the Parent agreed to operate and maintain the Pacific Ethanol West Plants. These services
generally included, but were not limited to, administering the Plants’ compliance with their credit agreements and performing billing,
collection, record keeping and other administrative and ministerial tasks. The Parent agreed to supply all labor and personnel required to
perform its services under the PMA, including the labor and personnel required to operate and maintain the production facilities.
The costs and expenses associated with the Parent’s provision of services under the PMA were prefunded by the Pacific Ethanol West
Plants under a preapproved budget. The Parent’s obligation to provide services was limited to the extent there were sufficient funds
advanced by the plants to cover the associated costs and expenses.
As compensation for providing the services under the PMA, the Parent was paid $75,000 per month for each production facility that was
operational and $40,000 per month for each production facility that was idled. The Parent recorded revenues attributed to the PMA of
approximately $1.8 million, for the year ended December 31, 2015 and $3.5 million for each of the years ended December 31, 2014 and
2013. These amounts have been eliminated upon consolidation.
F-22
PACIFIC ETHANOL, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
In addition to the monthly fee, the Parent was to be paid a performance bonus if certain profit metrics were met. During the year ended
December 31, 2014, the Company earned $2.8 million in performance bonuses. These amounts have been eliminated upon consolidation.
No bonuses were paid in 2015 and 2013.
Ethanol Marketing Agreements – Kinergy entered into separate ethanol marketing agreements with each of the Company’s eight plants,
which granted it the exclusive right to purchase, market and sell the ethanol produced at those facilities. Under the terms of the ethanol
marketing agreements, within ten days after delivering ethanol to Kinergy, an amount is paid to Kinergy equal to (i) the estimated purchase
price payable by the third-party purchaser of the ethanol, minus (ii) the estimated amount of transportation costs to be incurred, minus (iii)
the estimated incentive fee payable to Kinergy, which equals 1% of the aggregate third-party purchase price, provided that the marketing
fee shall not be less than $0.015 per gallon and not more than $0.0225 per gallon. Each of the ethanol marketing agreements had an initial
term of one year and successive one year renewal periods at the option of the individual plant.
Kinergy recorded revenues of approximately $5,262,000, $3,986,000 and $3,351,000 related to the ethanol marketing agreements for the
years ended December 31, 2015, 2014 and 2013, respectively. These amounts have been eliminated upon consolidation.
Corn Procurement and Handling Agreements – PAP entered into separate corn procurement and handling agreements with each of the four
Pacific Ethanol West Plants. Under the terms of the corn procurement and handling agreements, each facility appointed PAP as its
exclusive agent to solicit, negotiate, enter into and administer, on its behalf, corn supply arrangements to procure the corn necessary to
operate its facility. PAP also provides grain handling services including, but not limited to, receiving, unloading and conveying corn into
the facility’s storage and, in the case of whole corn delivered, processing and hammering the whole corn.
PAP is to receive a fee of $0.045 per bushel of corn delivered to each facility as consideration for its procurement and handling services,
payable monthly. Each corn procurement and handling agreement had an initial term of one year and successive one year renewal periods at
the option of the individual plant.
PAP recorded revenues of approximately $2,910,000, $2,989,000 and $2,423,000 related to the corn procurement and handling agreements
for the years ended December 31, 2015, 2014 and 2013, respectively. These amounts have been eliminated upon consolidation.
Distillers Grains Marketing Agreements – PAP entered into separate distillers grains marketing agreements with each of the Company’s
eight plants, which grant PAP the exclusive right to market, purchase and sell the various co-products produced at each facility. Under the
terms of the distillers grains marketing agreements, within ten days after a plant delivers co-products to PAP, the plant is paid an amount
equal to (i) the estimated purchase price payable by the third-party purchaser of the co-products, minus (ii) the estimated amount of
transportation costs to be incurred, minus (iii) the estimated amount of fees and taxes payable to governmental authorities in connection
with the tonnage of the co-products produced or marketed, minus (iv) the estimated incentive fee payable to the Company, which equals (a)
5% of the aggregate third-party purchase price for wet corn gluten feed, wet distillers grains, corn condensed distillers solubles and
distillers grains with solubles, or (b) 1% of the aggregate third-party purchase price for corn gluten meal, dry corn gluten feed, dry distillers
grains, corn germ and corn oil. Each distillers grains marketing agreement had an initial term of one year and successive one year renewal
periods at the option of the individual plant.
PAP recorded revenues of approximately $4,438,000, $4,788,000 and $4,584,000 related to the distillers grain marketing agreements for
the years ended December 31, 2015, 2014 and 2013, respectively. These amounts have been eliminated upon consolidation.
F-23
PACIFIC ETHANOL, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
5. SEGMENTS.
The Company previously reported as a single segment, however, as a result of changes in the Company’s business in 2015, after a
reassessment, the Company changed the number of its operating and reportable segments as determined under ASC 280.
The Company reports its financial and operating performance in two segments: (1) ethanol production, which includes the production and
sale of ethanol and co-products, with all eight of the Company’s production facilities aggregated, and (2) marketing and distribution, which
includes marketing and merchant trading for Company-produced ethanol and co-products and third-party ethanol.
Income before provision for income taxes includes management fees charged by the Parent to the segment. The production segment
incurred $6.0 million, $8.8 million and $5.6 million in management fees for the years ended December 31, 2015, 2014 and 2013,
respectively. The marketing and distribution segment incurred $3.9 million, $3.9 million and $3.6 million in management fees for the years
ended December 31, 2015, 2014 and 2013, respectively. Corporate activities include selling, general and administrative expenses,
consisting primarily of corporate employee compensation, professional fees and overhead costs not directly related to a specific operating
segment.
During the normal course of business, the segments do business with each other. The preponderance of this activity occurs when the
Company’s marketing segment markets ethanol produced by the production segment for a marketing fee, as discussed in Note 4. These
intersegment activities are considered arms’-length transactions. Consequently, although these transactions impact segment performance,
they do not impact the Company’s consolidated results since all revenues and corresponding costs are eliminated in consolidation.
Capital expenditures are substantially all incurred at the Company’s production segment.
F-24
PACIFIC ETHANOL, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
The following tables set forth certain financial data for the Company’s operating segments (in thousands):
Net Sales:
Ethanol production:
Net sales from external customers
Intersegment net sales
Total segment revenues
Marketing and distribution:
Net sales from external customers
Intersegment net sales
Total segment net sales
Net sales including intersegment activity
Intersegment eliminations
Net sales as reported
Cost of goods sold:
Ethanol production
Marketing and distribution
Intersegment eliminations
Income (loss) before provision for income taxes:
Ethanol production
Marketing and distribution
Corporate activities
Depreciation and amortization:
Ethanol production
Marketing and distribution
Corporate activities
Interest expense:
Ethanol production
Marketing and distribution
Corporate activities
Years Ended December 31,
2014
2015
2013
$
710,201 $
562,388 $
–
710,201
–
562,388
480,975
5,262
486,237
1,196,438
(5,262)
1,191,176 $
545,024
3,986
549,010
1,111,398
(3,986)
1,107,412 $
719,833 $
476,410
(12,477)
1,183,766 $
(32,723) $
3,200
616
(28,907) $
23,091 $
151
390
23,632 $
473,598 $
537,010
(11,681)
998,927 $
72,278 $
6,068
(37,207)
41,139 $
12,509 $
551
126
13,186 $
(11,969) $
(625)
–
(12,594) $
(7,048) $
(566)
(1,824)
(9,438) $
$
$
$
$
$
$
$
$
$
507,162
–
507,162
401,275
3,351
404,626
911,788
(3,351)
908,437
492,186
393,366
(10,045)
875,507
3,776
5,217
(10,155)
(1,162)
11,533
499
104
12,136
(11,248)
(527)
(3,896)
(15,671)
F-25
PACIFIC ETHANOL, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
The following table sets forth the Company’s total assets by operating segment (in thousands):
Total assets:
Ethanol production
Marketing and distribution
Corporate assets
Years Ended December 31,
2014
2015
$
$
536,013 $
107,532
31,598
675,143 $
190,630
70,068
37,198
297,896
6. PROPERTY AND EQUIPMENT.
Property and equipment consisted of the following (in thousands):
Facilities and plant equipment
Land
Other equipment, vehicles and furniture
Construction in progress
Accumulated depreciation
December 31,
2015
2014
501,800 $
7,541
9,084
23,579
542,004
(77,044)
464,960 $
190,714
2,570
7,641
8,720
209,645
(54,343)
155,302
$
$
Depreciation expense, including idled facilities, was $23,524,000, $12,712,000 and $11,662,000 for the years ended December 31, 2015,
2014 and 2013, respectively. One of the Pacific Ethanol West Plants was idled for four months in 2014 and for all of 2013. Depreciation on
the Company’s idled assets was an aggregate of $699,000 and $2,108,000 for the years ended December 31, 2014 and 2013, respectively.
Included in plant and equipment is $9,971,000 and $3,467,000 at December 31, 2015 and 2014, respectively, attributable to capital leases.
Depreciation expense related to these capital leases was $340,000, $231,000 and none for the years ended December 31, 2015, 2014 and
2013, respectively. For the year ended December 31, 2015, the Company recorded an impairment charge of $1,970,000 related to the
abandonment of certain accounting and information technology systems following its integration of Aventine.
7.
INTANGIBLE ASSETS.
Intangible assets consisted of the following (in thousands):
Useful Life
(Years)
Gross
December 31, 2015
Accumulated
Amortization
Net Book
Value
December 31, 2014
Accumulated
Amortization
Net Book
Value
Gross
Non-
Amortizing:
Kinergy
tradename
Amortizing:
Customer
relationships
Total
intangible
assets, net
$
2,678 $
– $
2,678 $
2,678 $
– $
2,678
10
4,741
(4,741)
–
4,741
(4,633)
108
$
7,419 $
(4,741) $
2,678 $
7,419 $
(4,633) $
2,786
F-26
PACIFIC ETHANOL, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Kinergy Tradename – The Company recorded a tradename valued at $2,678,000 in 2006 as part of its acquisition of Kinergy. The
Company determined that the Kinergy tradename has an indefinite life and therefore, rather than being amortized, will be tested annually
for impairment. The Company did not record any impairment of the Kinergy tradename for the years ended December 31, 2015, 2014 and
2013.
Customer Relationships – The Company recorded customer relationships valued at $4,741,000 as part of its acquisition of Kinergy. The
Company has established a useful life of ten years for these customer relationships. Amortization expense associated with intangible assets
totaled $108,000, $474,000 and $474,000 for the years ended December 31, 2015, 2014 and 2013, respectively.
8. DERIVATIVES.
The business and activities of the Company expose it to a variety of market risks, including risks related to changes in commodity prices.
The Company monitors and manages these financial exposures as an integral part of its risk management program. This program
recognizes the unpredictability of financial markets and seeks to reduce the potentially adverse effects that market volatility could have on
operating results.
Commodity Risk – Cash Flow Hedges – The Company uses derivative instruments to protect cash flows from fluctuations caused by
volatility in commodity prices for periods of up to twelve months in order to protect gross profit margins from potentially adverse effects of
market and price volatility on ethanol sale and purchase commitments where the prices are set at a future date and/or if the contracts specify
a floating or index-based price for ethanol. In addition, the Company hedges anticipated sales of ethanol to minimize its exposure to the
potentially adverse effects of price volatility. These derivatives may be designated and documented as cash flow hedges and effectiveness is
evaluated by assessing the probability of the anticipated transactions and regressing commodity futures prices against the Company’s
purchase and sales prices. Ineffectiveness, which is defined as the degree to which the derivative does not offset the underlying exposure, is
recognized immediately in cost of goods sold. For the years ended December 31, 2015, 2014 and 2013, the Company did not designate any
of its derivatives as cash flow hedges.
Commodity Risk – Non-Designated Hedges – The Company uses derivative instruments to lock in prices for certain amounts of corn and
ethanol by entering into exchange-traded forward contracts for those commodities. These derivatives are not designated for special hedge
accounting treatment. The changes in fair value of these contracts are recorded on the balance sheet and recognized immediately in cost of
goods sold. The Company recognized net losses of $542,000, $808,000 and $1,821,000 as the change in the fair value of these contracts
for the years ended December 31, 2015, 2014 and 2013, respectively.
Non Designated Derivative Instruments – The classification and amounts of the Company’s derivatives not designated as hedging
instruments are as follows (in thousands):
Type of Instrument
Balance Sheet Location
Fair Value
Balance Sheet Location
Fair Value
Commodity contracts
Other current assets
$
$
2,081 Other current liabilities
2,081
$
$
1,848
1,848
As of December 31, 2015
Assets
Liabilities
F-27
PACIFIC ETHANOL, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
As of December 31, 2015
Assets
Liabilities
Type of Instrument
Balance Sheet Location
Fair Value
Balance Sheet Location
Fair Value
Commodity contracts
Other current assets
$
$
1,586 Other current liabilities
1,586
$
$
1,149
1,149
The classification and amounts of the Company’s recognized gains (losses) for its derivatives not designated as hedging instruments are as
follows (in thousands):
Type of Instrument
Statements of Operations Location
2015
Commodity contracts
Cost of goods sold
$
$
Type of Instrument
Statements of Operations Location
2015
Realized Losses
For the Years Ended December 31,
2014
(338) $
(338) $
(1,144) $
(1,144) $
2013
(1,901)
(1,901)
Unrealized (Losses) Gains
For the Years Ended December 31,
2014
2013
Commodity contracts
Cost of goods sold
$
$
(204) $
(204) $
336 $
336 $
80
80
9. DEBT.
Long-term borrowings are summarized as follows (in thousands):
Kinergy operating line of credit
Term debt
Less unamortized discount
Less short-term portion
Long-term debt
December 31, 2015 December 31, 2014
17,530
$
17,003
34,533
–
–
34,533
61,003 $
162,622
223,625
(2,298)
(17,003)
204,324 $
$
Kinergy Line of Credit – Kinergy has an operating line of credit for an aggregate amount of up to $75,000,000 with an “accordion” feature
to further increase the maximum credit under the credit facility to up to $100,000,000 in minimum increments of $5,000,000 each, upon
Kinergy’s request, but subject to the consent of the agent and the lenders in their sole discretion. The line of credit matures on December
31, 2020. The credit facility is based on Kinergy’s eligible accounts receivable and inventory levels, subject to certain concentration
reserves. The credit facility is subject to certain other sublimits, including inventory loan limits. Interest accrues under the line of credit at a
rate equal to (i) the three-month London Interbank Offered Rate (“LIBOR”), plus (ii) a specified applicable margin ranging between 1.75%
and 2.75%. The applicable margin was 1.75%, for a total rate of 2.375% at December 31, 2015. The credit facility’s monthly unused line
fee is an annual rate equal to 0.25% to 0.375% depending on the average daily principal balance during the immediately preceding month.
Payments that may be made by Kinergy to the Company as reimbursement for management and other services provided by the Company to
Kinergy are limited under the terms of the credit facility to $1,100,000 per fiscal quarter.
F-28
PACIFIC ETHANOL, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
The credit facility also includes the accounts receivable of PAP as additional collateral. Payments that may be made by PAP to Pacific
Ethanol as reimbursement for management and other services provided by Payments that may be made by PAP to the Company as
reimbursement for management and other services provided by the Company to PAP are limited under the terms of the credit facility to
$500,000 per fiscal quarter.
For each calendar month, Kinergy and PAP are collectively required to maintain a fixed-charge coverage ratio (calculated as a twelve-
month rolling EBITDA divided by the sum of interest expense, capital expenditures, principal payments of indebtedness, indebtedness
from capital leases and taxes paid during such twelve-month rolling period) of at least 2.0 and are prohibited from incurring certain
additional indebtedness (other than specific intercompany indebtedness.
Kinergy and PAP’s obligations under the credit facility are secured by a first-priority security interest in all of their assets in favor of the
lender. Pacific Ethanol has guaranteed all of Kinergy’s obligations under the line of credit. As of December 31, 2015, Kinergy had an
available borrowing base under the credit facility of $67,161,000.
Pacific Ethanol West Plants’ Term Debt – The Pacific Ethanol West Plants’ debt as of December 31, 2015 consisted of a $32,487,000
tranche A-1 term loan and a $26,279,000 tranche A-2 term loan, both of which have a maturity date in June 2016. Pacific Ethanol, Inc.
holds a combined $41,763,000 of these term loans, which are eliminated upon consolidation. As of December 31, 2015, the combined
outstanding balance of these loans was $17,003,000 on a consolidated basis (net of Pacific Ethanol, Inc. holdings).
The term debt requires monthly interest payments at a floating rate equal to the three-month LIBOR or the Prime Rate of interest, at the
election of the Pacific Ethanol West Plants, plus 10.0%. At December 31, 2015, the interest rate was approximately 13.25%. Repayments of
principal are based on available free cash flow of the Pacific Ethanol West Plants, until maturity, when all principal amounts are due.
On February 26, 2016, the Company retired the $17,003,000 outstanding balance by purchasing the lender’s position for cash at par
without any prepayment penalty. This purchase increased the amount of the term loans held by Pacific Ethanol to a combined $58,766,000.
As a result, the Company has no continuing obligations to any third-party lender under the credit agreements associated with this term debt.
F-29
PACIFIC ETHANOL, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Senior Unsecured Notes – On January 11, 2013, under the terms of a securities purchase agreement dated December 19, 2012 among the
Company and five accredited investors, the Company issued and sold to the investors in a private offering $22,192,000 in aggregate
principal amount of its senior unsecured notes (“January 2013 Notes”) and warrants to purchase an aggregate of 1,708,700 shares of the
Company’s common stock (“January 2013 Financing Transaction”) for aggregate net proceeds of $22,072,000. The warrants have an
exercise price of $6.32 per share and expire in January 2018. The January 2013 Notes had an original maturity date of March 30, 2016 and
bore interest at a rate of 5% per annum, subject to adjustment. Payments due under the January 2013 Notes ranked senior to all other
indebtedness of the Company and its subsidiaries, other than certain permitted senior indebtedness.
Upon closing of the January 2013 Financing Transaction, the Company recorded a debt discount of $2,657,000 associated with the value of
the warrants issued in connection with the financing. The debt discount will be amortized over the life of the January 2013 Notes to
approximate a yield adjustment.
If at any time the Company were to receive net cash proceeds from an issuance of equity or equity-linked securities of the Company,
interest received from any purchased and outstanding plant owners’ term debt, certain sales of assets or as a result of incurring certain
indebtedness, then the Company would be obligated to prepay the January 2013 Notes using 100% of all such net cash proceeds, provided
that any net proceeds received in connection with an equity-linked issuance must be used to either prepay the January 2013 Notes or
purchase certain outstanding debt issued by the plant owners.
During 2014, the Company made principal cash payments on the January 2013 Notes in the aggregate amount of $13,984,000, fully
retiring the debt prior to maturity. During 2013, the Company made principal cash payments on the January 2013 Notes in the aggregate
amount of $6,208,000 and the Company issued 500,000 shares of its common stock as a $2,000,000 principal payment, resulting in a loss
of $229,000 on extinguishment of debt.
Subordinated Convertible Notes – On March 28, 2013, the Company issued $6,000,000 in aggregate principal amount of its Series A
Subordinated Convertible Notes (“Series A Notes”), and warrants to purchase an aggregate of 1,839,600 shares of common stock for
aggregate gross proceeds of $6,000,000. On June 21, 2013, the Company issued $8,000,000 in aggregate principal amount of its Series B
Subordinated Convertible Notes (“Series B Notes”) for aggregate gross proceeds of $8,000,000. The warrants had an exercise price of
$7.59 per share. Of the warrants issued in the transaction, warrants to purchase 788,400 shares of common stock expired in March 2015 and
warrants to purchase 1,051,200 shares of common stock expired in June 2015. The net proceeds of these offerings of $12,560,000 were
used to (i) purchase $6,665,000 of the plant owners’ debt maturing in June 2013, the maturity of which was also extended at the time from
June 2013 to June 2016, and of which the Company immediately retired $1,122,000; (ii) acquire an additional 5% ownership interest in PE
Op Co.; and (iii) purchase and immediately retire an additional $3,500,000 of the plant owners’ term debt.
Unless converted or redeemed earlier, the Series A and B Notes were to mature on March 28, 2014. The Series A and B Notes bore interest
at 5% per annum, compounded monthly. All amounts due under the Series A and B Notes were convertible at any time, in whole or in part,
at the option of the holders into shares of the Company’s common stock at a conversion price (“Fixed Conversion Price”), which was
subject to adjustment as described below.
F-30
PACIFIC ETHANOL, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
The Series A and B Notes were initially convertible into shares of the Company’s common stock at the initial Fixed Conversion Price of
$15.00 per share. If the Company sold or issued any securities with “floating” conversion prices based on the market price of its common
stock, the holder of a Series A or B Note would have the right thereafter to substitute the “floating” conversion price for the Fixed
Conversion Price upon conversion of all or part of the Series A or B Note.
The Company determined that the conversion feature of the Series A and B Notes and the related warrants require bifurcation and liability
classification and measurement, at fair value, and require evaluation at each reporting period. The initial fair values of the conversion
feature of the Series A Notes of $1,400,800 and the warrants of $882,500 were accounted for as a debt discount and were amortized into
interest expense as a yield adjustment over the term of the Series A Notes. The initial fair values of the conversion feature of the Series B
Notes of $2,928,500 and the warrants of $689,300 were accounted for as a debt discount and were amortized into interest expense as a yield
adjustment over the term of the Series B Notes.
In 2013, the Company made installment payments and processed a number of conversions. In the aggregate, the Company issued 4,446,000
shares of its common stock in payment of principal and interest in an aggregate amount of the $14,000,000 in respect of the Series A and B
Notes. In connection with these installment payments and conversions, the Company recorded losses on extinguishments of debt of
$4,621,000 for the year ended December 31, 2013.
As of December 31, 2013, the Series A and B Notes had been fully retired.
Acquisitions of Pacific Ethanol West Plant Debt – On January 11, 2013, the Company used $21,500,000 of the proceeds of the January
2013 Financing Transaction to purchase from certain lenders an aggregate amount of $21,500,000 of the Pacific Ethanol West plant
owners’ tranche A-2 term loans. The Company determined that the acquisition of the plant debt was a modification of terms because the
lenders who held the acquired plant debt were the lenders under the January 2013 Notes. Based on the Company’s review of the present
value of cash flows of the January 2013 Notes compared to the older plant debt, which resulted in a less than 10% change, the modification
was not significant and the Company did not record a gain or loss associated with the modification. The Company expensed certain legal
costs associated with the debt modification of approximately $408,000, rather than amortizing those expenses over the life of the debt.
Because the plant debt acquired is now held by Pacific Ethanol, Inc. this specific debt is eliminated in consolidation.
On March 28, 2013, the Company used proceeds from the issuance of its Series A Notes and warrants to purchase $3,500,000 of revolving
credit facility debt, at par, from a lender. Under the terms of the amended credit facility, the Company was obligated to immediately
forgive the purchased amount of revolving credit facility debt and has permanently reduced the maximum commitment on this facility to
$36,500,000.
On March 28, 2013, the Company also used proceeds from the issuance of its Series A Notes and warrants to purchase $2,636,000 of
tranche A-2 term loans and an additional 3% ownership interest in PE Op Co. for a combined purchase price of $2,150,000. The Company
first allocated $331,000 of this payment to the PE Op Co. ownership interest and the remainder was allocated to the tranche A-2 term loans.
The $817,000 difference between the amount the Company allocated to the term loans and the face amount of $2,636,000 was recorded as
a gain on extinguishment of debt.
On June 21, 2013, the Company used proceeds from the issuance of its Series B Notes to purchase $1,122,000 of revolving credit facility
debt at a discount. Under the terms of the amended credit facility, the Company was obligated to immediately forgive the purchased
amount of revolving credit facility debt and has permanently reduced the maximum commitment on this facility to $35,378,000.
On June 21, 2013, the Company also used proceeds from the issuance of its Series B Notes to purchase $2,907,000 of tranche A-1 and A-2
term loans at a discount and an additional 2% ownership interest in PE Op Co. for $197,000. The Company recorded a gain on
extinguishment of debt of $998,000 related to the discount it paid for the revolving and term loans.
On June 6, 2014, the Company purchased $14,675,000 of term debt for $17,038,000 in cash, reducing its consolidated plant term debt by
$14,675,000, and recorded a $2,363,000 loss on extinguishment of debt for the amount paid in excess of the principal balance.
As of December 31, 2015, the Company held an aggregate of $41,763,000 of the tranche A-1 and tranche A-2 term loans, which has been
eliminated upon consolidation.
F-30
PACIFIC ETHANOL, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Pacific Ethanol Central Plants’ Term Debt – As of September 30, 2015, the Pacific Ethanol Central Plants had term debt with an
outstanding balance of $145,619,000. On July 1, 2015, upon effectiveness of the Aventine acquisition, Aventine became a wholly-owned
subsidiary of the Company and, on a consolidated basis, the combined company became obligated with respect to the Pacific Ethanol
Central Plants’ term loan and revolving credit facilities. The creditors under the term loan for the Pacific Ethanol Central Plants have
recourse solely against the Pacific Ethanol Central Plants and their subsidiaries but not against Pacific Ethanol, Inc. or its other direct or
indirect subsidiaries. In connection with the Company’s allocation of purchase price, the debt was recorded at $142,744,000, net of a
discount of $2,875,000.
The term loan facility matures on September 24, 2017. The term loan facility is secured through a first-priority lien on substantially all of
the Pacific Ethanol Central Plants’ assets and contains customary financial covenants, including the requirement that Aventine maintain a
cash balance of at least $2.0 million. Interest on the term loan facility accrues and may be paid in cash at a rate of 10.5% per annum or may
be paid in-kind at a rate of 15.0% per annum by adding such interest to the outstanding principal balance. If the Company were to elect to
pay interest in-kind, the interest would be capitalized at the end of each quarter. The Company paid interest in cash for the period from July
1, 2015, the effective date of the Aventine acquisition, through December 31, 2015.
On July 1, 2015, the Company repaid in full $14.5 million, including approximately $0.7 million in termination fees, representing all
amounts owed under Aventine’s revolving credit facility.
Interest Expense on Borrowings and Maturities – Interest expense on all borrowings discussed above was $11,745,000, $6,546,000 and
$12,680,000 for the years ended December 31, 2015, 2014 and 2013, respectively. The consolidated long-term debt matures as follows:
$17,003,000 was to mature in 2016 but was repaid in February 2016; $145,619,000 matures in September 2017 and $61,003,000 matures in
December 2020.
At December 31, 2015, there were approximately $164.0 million of net assets of the Company’s subsidiaries that were not available to be
transferred to the parent company in the form of dividends, loans or advances due to restrictions contained in the credit facilities of these
subsidiaries.
10. PENSION PLANS.
Retirement Plan - The Company sponsors a defined benefit pension plan (the “Retirement Plan”) that is noncontributory, and covers only
“grandfathered” unionized employees at its Pekin, Illinois, facility. Benefits are based on a prescribed formula based upon the employee's
years of service. On October 31, 2015, the Union ratified a new collective bargaining agreement with the Company for its hourly
production workers in Pekin, Illinois. This new agreement was effective November 1, 2015. The revised amended agreement states that,
among other things, employees hired after November 1, 2010, will not be eligible to participate in the Retirement Plan. The Company uses
a December 31 measurement date for its Retirement Plan. The Company's funding policy is to make the minimum annual contribution that
is required by applicable regulations.
F-31
PACIFIC ETHANOL, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
The Company assumed the Retirement Plan as part of its acquisition of Aventine on July 1, 2015. Information related to the Retirement
Plan as of and for the period from July 1, 2015 to December 31, 2015 is presented below (dollars in thousands):
Amounts at the end of the year:
Accumulated/projected benefit obligation
Fair value of plan assets
Funded status, (underfunded)/overfunded
Amounts recognized in the consolidated balance sheets:
Other liabilities
Accumulated other comprehensive income, unrecognized net income
Amounts recognized in the plan for the year:
Company contributions
Participant contributions
Benefits paid
Net periodic benefit cost
Other changes recognized in other comprehensive income:
Net gain
Amortization of net gain/(loss)
Total recognized in other comprehensive income
Assumptions used in computation benefit obligations:
Discount rate
Expected long-term return on plan assets
Rate of compensation increase
$
$
$
$
$
$
$
$
$
$
16,552
12,567
(3,985)
(3,985)
(885)
–
–
(315)
49
885
–
885
4.23%
7.75%
–
The Company is not expected to make contributions in the year ending December 31, 2016. Expected net periodic benefit cost for 2016 is
estimated at approximately $0.2 million.
F-32
PACIFIC ETHANOL, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
The following table summarizes the expected benefit payments for the Company's plan for each of the next five fiscal years and in the
aggregate for the five fiscal years thereafter (in thousands):
December 31:
2016
2017
2018
2019
2020
2021-25
$
$
648
657
672
684
699
3,893
7,253
See Note 16 for discussion of the plan’s fair value disclosures.
Historical and future expected returns of multiple asset classes were analyzed to develop a risk-free real rate of return and risk premiums for
each asset class. The overall rate for each asset class was developed by combining a long-term inflation component, the risk-free real rate of
return, and the associated risk premium. A weighted average rate was developed based on those overall rates and the target asset allocation
of the plan.
The Company's pension committee is responsible for overseeing the investment of pension plan assets. The pension committee is
responsible for determining and monitoring the appropriate asset allocations and for selecting or replacing investment managers, trustees,
and custodians. The pension plan's current investment target allocations are 50% equities and 50% debt. The pension committee reviews
the actual asset allocation in light of these targets periodically and rebalances investments as necessary. The pension committee also
evaluates the performance of investment managers as compared to the performance of specified benchmarks and peers and monitors the
investment managers to ensure adherence to their stated investment style and to the plan's investment guidelines.
Postretirement Plan - The Company also sponsors a health care plan and life insurance plan (the “Postretirement Plan”) that provides
postretirement medical benefits and life insurance to certain “grandfathered” unionized employees. Employees hired after December 31,
2000, are not eligible to participate in the Postretirement Plan. The plan is contributory, with contributions required at the same rate as
active employees. Benefit eligibility under the plan reduces at age 65 from a defined benefit to a defined dollar cap based upon years of
service.
F-33
PACIFIC ETHANOL, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
The Company assumed the Postretirement Plan as part of its acquisition of Aventine on July 1, 2015. Information related to the
Postretirement Plan as of and for the period from July 1, 2015 to December 31, 2015 is presented below (dollars in thousands):
Amounts at the end of the year:
Accumulated/projected benefit obligation
Fair value of plan assets
Funded status, (underfunded)/overfunded
Amounts recognized in the consolidated balance sheets:
Accrued liabilities
Other liabilities
Accumulated other comprehensive income, unrecognized net income
Amounts recognized in the plan for the year:
Company contributions
Participant contributions
Benefits paid
Net periodic benefit cost
Other changes recognized in OCI:
Net gain
Amortization of net gain/(loss)
Total recognized in other comprehensive income
Assumptions used in computation benefit obligations:
Discount rate
$
$
$
$
$
$
$
$
$
$
$
3,619
–
(3,619)
(214)
(3,405)
(155)
20
15
(35)
97
155
–
155
3.95%
The Company does not expect to recognize any amortization of net actuarial loss during the year ended December 31, 2016.
F-34
PACIFIC ETHANOL, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
The following table summarizes the expected benefit payments for the Company's plan for each of the next five fiscal years and in the
aggregate for the five fiscal years thereafter (in thousands):
December 31:
2016
2017
2018
2019
2020
2021-25
$
$
214
226
174
190
177
1,056
2,037
For purposes of determining the cost and obligation for pre-Medicare postretirement medical benefits, a 5.0% annual rate of increase in the
per capita cost of covered benefits (i.e., health care trend rate) was assumed for the plan in 2016, adjusting to a rate of 5.5% in 2025.
Assumed health care cost trend rates have a significant effect on the amounts reported for health care plans.
11. INCOME TAXES.
The Company recorded a provision (benefit) for income taxes as follows (in thousands):
Current provision (benefit)
Deferred provision (benefit)
Total
2015
Years Ended December 31,
2014
2013
$
$
(8,011) $
(2,023)
(10,034) $
11,040 $
4,097
15,137 $
–
–
–
A reconciliation of the differences between the United States statutory federal income tax rate and the effective tax rate as provided in the
consolidated statements of operations is as follows:
Statutory rate
State income taxes, net of federal benefit
Change in valuation allowance
Fair value adjustments and warrant inducements
Domestic production gross receipts deduction
Section 382 reduction to loss carryover
Stock compensation
Non-deductible items
Change in tax status of PE Op Co.
Convertible debt instruments
Other
Effective rate
Years Ended December 31,
2014
2015
2013
35.0%
9.2
(4.2)
2.0
(2.9)
0.1
(0.8)
(0.5)
–
–
(3.2)
34.7%
35.0%
10.0
(11.5)
31.8
(2.0)
(24.2)
–
0.6
(1.6)
–
(1.3)
36.8%
35.0%
(8.2)
458.0
–
–
(141.1)
(20.9)
(27.7)
–
(297.7)
2.6
0.0%
F-35
PACIFIC ETHANOL, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Deferred income taxes are provided using the asset and liability method to reflect temporary differences between the financial statement
carrying amounts and the tax bases of assets and liabilities using presently enacted tax rates and laws. The components of deferred income
taxes included in the consolidated balance sheets were as follows (in thousands):
Deferred tax assets:
Net operating loss carryforwards
Railcar contracts
Pension liability
R&D and AMT credits
Litigation accrual
Capital leases
Stock-based compensation
Other
Total deferred tax assets
Deferred tax liabilities:
Fixed assets
Intangibles
Debt basis
Other
Total deferred tax liabilities
Valuation allowance
Net deferred tax liabilities
Classified in balance sheet as:
Deferred tax liabilities
December 31,
2015
2014
53,867 $
5,143
2,647
2,303
1,290
1,021
724
5,367
72,362
(30,272)
(1,091)
(912)
(1,423)
(33,698)
(39,838)
(1,174) $
12,385
–
–
–
–
–
781
1,944
15,110
(24,813)
(1,134)
–
(450)
(26,397)
(4,147)
(15,434)
(1,174) $
(15,434)
$
$
$
A portion of the Company’s net operating loss carryforwards will be subject to provisions of the tax law that limit the use of losses
incurred by a company prior to the date certain ownership changes occur.
Due to the limitation, a significant portion of these net operating loss carryforwards will expire regardless of whether the Company
generates future taxable income. After reducing these net operating loss carryforwards for the amount which will expire, the Company had
federal net operating loss carryforwards of approximately $137,611,000 and state net operating loss carryforwards of approximately
$123,462,000 at December 31, 2015. These net operating loss carryforwards expire as follows (in thousands):
Tax Years
2016–2020
2021–2025
2026–2030
2031–2035
Federal
State
$
$
– $
7,258
13,624
116,729
137,611 $
21,344
1,412
33,635
67,071
123,462
F-36
PACIFIC ETHANOL, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Certain of these net operating losses are not immediately available, but become available to be utilized in each of the years ended December
31, as follows (in thousands):
Year
2016
2017
2018
2019
2020
Thereafter
State
Federal
$ 26,820 $ 32,504
6,748
6,748
6,277
6,169
65,016
$ 137,611 $ 123,462
10,862
10,862
6,383
5,282
77,402
To the extent amounts are not utilized in any year, they may be carried forward to the next year until expiration. These amounts may
change if there are future additional limitations on their utilization.
In assessing whether the deferred tax assets are realizable, a more likely than not standard is applied. If it is determined that it is more
likely than not that deferred tax assets will not be realized, a valuation allowance must be established against the deferred tax assets. The
ultimate realization of deferred tax assets is dependent upon the generation of future taxable income during the periods in which the
associated temporary differences become deductible. Management considers the scheduled reversal of deferred tax liabilities, projected
future taxable income and tax planning strategies in making this assessment.
A valuation allowance has been established in the amount of $39,838,000, $4,147,000 and $8,422,000 at December 31, 2015, 2014 and
2013, respectively, based on the Company’s assessment of the future realizability of certain deferred tax assets. For the years ended
December 31, 2015 and 2014, the Company recorded an increase of $1,221,000 and a decrease of $4,275,000 in the valuation allowance,
respectively. During the year ended December 31, 2015, the Company recognized $1,500,000 in tax benefit related to adjustments to its tax
asset valuation allowance from a prior year. In addition, a valuation allowance of $34,469,000 was recorded against the Aventine deferred
tax assets with respect to purchase accounting, attributable almost exclusively to the expected expiration of net operating loss
carryforwards due to limitations caused by ownership changes as previously discussed. The valuation allowance on deferred tax assets is
related to future deductible temporary differences and net operating loss carryforwards (exclusive of net operating losses associated with
items recorded directly to equity) for which the Company has concluded it is more likely than not that these items will not be realized in the
ordinary course of operations.
At December 31, 2015, the Company had no increase or decrease in unrecognized income tax benefits for the year as a result of uncertain
tax positions taken in a prior or current period. There was no accrued interest or penalties relating to tax uncertainties at December 31,
2015. Unrecognized tax benefits are not expected to increase or decrease within the next twelve months.
F-37
PACIFIC ETHANOL, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
The Company is subject to income tax in the United States federal jurisdiction and various state jurisdictions and has identified its federal
tax return and tax returns in state jurisdictions below as “major” tax filings. These jurisdictions, along with the years still open to audit
under the applicable statutes of limitation, are as follows:
Jurisdiction
Tax Years
Federal
Arizona
California
Colorado
Idaho
Illinois
Indiana
Iowa
Kansas
Minnesota
Missouri
Nebraska
Oklahoma
Oregon
2012 – 2014
2012 – 2014
2011 – 2014
2011 – 2014
2012 – 2014
2012 – 2014
2012 – 2014
2014
2014
2014
2014
2012 – 2014
2014
2012 – 2014
However, because the Company had net operating losses and credits carried forward in several of the jurisdictions, including the United
States federal and California jurisdictions, certain items attributable to closed tax years are still subject to adjustment by applicable taxing
authorities through an adjustment to tax attributes carried forward to open years.
12. PREFERRED STOCK.
The Company has 6,734,835 undesignated shares of authorized and unissued preferred stock, which may be designated and issued in the
future on the authority of the Company’s Board of Directors. As of December 31, 2015, the Company had the following designated
preferred stock:
Series A Preferred Stock – The Company has authorized 1,684,375 shares of Series A Cumulative Redeemable Convertible Preferred Stock
(“Series A Preferred Stock”), with none outstanding at December 31, 2015 and 2014. Shares of Series A Preferred Stock that are converted
into shares of the Company’s common stock revert to undesignated shares of authorized and unissued preferred stock.
Upon any issuance, the Series A Preferred Stock would rank senior in liquidation and dividend preferences to the Company’s common
stock. Holders of Series A Preferred Stock would be entitled to quarterly cumulative dividends payable in arrears in cash in an amount equal
to 5% per annum of the purchase price per share of the Series A Preferred Stock. The holders of the Series A Preferred Stock would have
conversion rights initially equivalent to two shares of common stock for each share of Series A Preferred Stock, subject to customary
antidilution adjustments. Certain specified issuances will not result in antidilution adjustments. The shares of Series A Preferred Stock
would also be subject to forced conversion upon the occurrence of a transaction that would result in an internal rate of return to the holders
of the Series A Preferred Stock of 25% or more. Accrued but unpaid dividends on the Series A Preferred Stock are to be paid in cash upon
any conversion of the Series A Preferred Stock.
The holders of Series A Preferred Stock would have a liquidation preference over the holders of the Company’s common stock equivalent
to the purchase price per share of the Series A Preferred Stock plus any accrued and unpaid dividends on the Series A Preferred Stock. A
liquidation would be deemed to occur upon the happening of customary events, including transfer of all or substantially all of the
Company’s capital stock or assets or a merger, consolidation, share exchange, reorganization or other transaction or series of related
transactions, unless holders of 66 2/3% of the Series A Preferred Stock vote affirmatively in favor of or otherwise consent to such
transaction.
F-38
PACIFIC ETHANOL, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Series B Preferred Stock – The Company has authorized 1,580,790 shares of Series B Cumulative Convertible Preferred Stock (“Series B
Preferred Stock”), with 926,942 shares outstanding at December 31, 2015 and 2014. Shares of Series B Preferred Stock that are converted
into shares of the Company’s common stock revert to undesignated shares of authorized and unissued preferred stock.
The Series B Preferred Stock ranks senior in liquidation and dividend preferences to the Company’s common stock. Holders of Series B
Preferred Stock are entitled to quarterly cumulative dividends payable in arrears in cash in an amount equal to 7.00% per annum of the
purchase price per share of the Series B Preferred Stock; however, subject to the provisions of the Letter Agreement described below, such
dividends may, at the option of the Company, be paid in additional shares of Series B Preferred Stock based initially on the liquidation
value of the Series B Preferred Stock. In addition to the quarterly cumulative dividends, holders of the Series B Preferred Stock are entitled
to participate in any common stock dividends declared by the Company to its common stockholders. The holders of Series B Preferred
Stock have a liquidation preference over the holders of the Company’s common stock initially equivalent to $19.50 per share of the Series
B Preferred Stock plus any accrued and unpaid dividends on the Series B Preferred Stock. A liquidation will be deemed to occur upon the
happening of customary events, including the transfer of all or substantially all of the capital stock or assets of the Company or a merger,
consolidation, share exchange, reorganization or other transaction or series of related transaction, unless holders of 66 2/3% of the Series B
Preferred Stock vote affirmatively in favor of or otherwise consent that such transaction shall not be treated as a liquidation. The Company
believes that such liquidation events are within its control and therefore has classified the Series B Preferred Stock in stockholders’ equity.
As of December 31, 2015, the Series B Preferred Stock was convertible into 634,641 shares of the Company’s common stock. The
conversion ratio is subject to customary antidilution adjustments. In addition, antidilution adjustments are to occur in the event that the
Company issues equity securities, including derivative securities convertible into equity securities (on an as-converted or as-exercised
basis), at a price less than the conversion price then in effect. The shares of Series B Preferred Stock are also subject to forced conversion
upon the occurrence of a transaction that would result in an internal rate of return to the holders of the Series B Preferred Stock of 25% or
more. The forced conversion is to be based upon the conversion ratio as last adjusted. Accrued but unpaid dividends on the Series B
Preferred Stock are to be paid in cash upon any conversion of the Series B Preferred Stock.
The holders of Series B Preferred Stock vote together as a single class with the holders of the Company’s common stock on all actions to be
taken by the Company’s stockholders. Each share of Series B Preferred Stock entitles the holder to approximately 0.03 votes per share on
all matters to be voted on by the stockholders of the Company. Notwithstanding the foregoing, the holders of Series B Preferred Stock are
afforded numerous customary protective provisions with respect to certain actions that may only be approved by holders of a majority of
the shares of Series B Preferred Stock.
In 2008, the Company entered into Letter Agreements with Lyles United LLC (“Lyles United”) and other purchasers under which the
Company expressly waived its rights under the Certificate of Designations relating to the Series B Preferred Stock to make dividend
payments in additional shares of Series B Preferred Stock in lieu of cash dividend payments without the prior written consent of Lyles
United and the other purchasers.
Registration Rights Agreement – In connection with the sale of its Series B Preferred Stock, the Company entered into a registration rights
agreement with Lyles United. The registration rights agreement is to be effective until the holders of the Series B Preferred Stock, and their
affiliates, as a group, own less than 10% for each of the series issued, including common stock into which such Series B Preferred Stock
has been converted. The registration rights agreement provides that holders of a majority of the Series B Preferred Stock, including
common stock into which such Series B Preferred Stock has been converted, may demand and cause the Company to register on their
behalf the shares of common stock issued, issuable or that may be issuable upon conversion of the Preferred Stock and as payment of
dividends thereon, and upon exercise of the related warrants (collectively, the “Registrable Securities”). The Company is required to keep
such registration statement effective until such time as all of the Registrable Securities are sold or until such holders may avail themselves
of Rule 144 for sales of Registrable Securities without registration under the Securities Act of 1933, as amended. The holders are entitled to
two demand registrations on Form S-1 and unlimited demand registrations on Form S-3; provided, however, that the Company is not
obligated to effect more than one demand registration on Form S-3 in any calendar year. In addition to the demand registration rights
afforded the holders under the registration rights agreement, the holders are entitled to unlimited “piggyback” registration rights. These
rights entitle the holders who so elect to be included in registration statements to be filed by the Company with respect to other registrations
of equity securities. The Company is responsible for all costs of registration, plus reasonable fees of one legal counsel for the holders,
which fees are not to exceed $25,000 per registration. The registration rights agreement includes customary representations and warranties
on the part of both the Company and the holders and other customary terms and conditions.
F-39
PACIFIC ETHANOL, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
The Company accrued and paid in cash preferred stock dividends of $1,265,000 for each of the years ended December 31, 2015, 2014 and
2013.
For the years ended December 31, 2011, 2010 and 2009, the Company accrued but did not pay any preferred stock dividends. Beginning in
2012, the Company entered into a series of agreements with the parties to whom unpaid dividends were owed under which the Company
issued shares of its common stock in satisfaction of a portion of the accrued and unpaid dividends. In connection with each payment of
accrued and unpaid dividends, the payees agreed to forebear for a term from exercising any rights they may have with the respect to
accrued and unpaid dividends. In 2014, the Company paid the last two installments in cash. The following table summarizes the details of
the Company’s payments to the holders of its Series B Preferred Stock:
Agreement/Payment Date
August 12, 2012
December 26, 2012
March 27, 2013
July 26, 2013
September 17, 2013
May 23, 2014
November 24, 2014
December 23, 2014
Amount of
Dividends Paid
Shares of
Common Stock
Issued
Extended Forbearance Date
$
$
732,000
732,000
732,000
731,000
731,000
1,463,000
1,000,000
1,194,000
7,315,000
January 1, 2014
June 30, 2014
September 30, 2014
December 31, 2014
March 31, 2015
November 30, 2015
157,000
144,500
139,000
175,000
197,000
120,000
–
–
932,500
13. COMMON STOCK AND WARRANTS.
The following table summarizes warrant activity for the years ended December 31, 2015, 2014 and 2013 (number of shares in thousands):
Balance at December 31, 2012
Warrants issued
Warrants exercised
Warrants expired
Balance at December 31, 2013
Warrants exercised
Warrants expired
Balance at December 31, 2014
Warrants exercised
Warrants expired
Balance at December 31, 2015
Number of
Shares
Price per
Share
5,039
3,548
(285)
(27) $
8,275
(6,615)
(804) $
856
(42) $
(432) $
382
$1.80 – $745.50 $
$6.32 – $7.59 $
$1.80 – $8.85 $
745.50 $
$5.47 – $735.00 $
$6.09 – $8.85 $
5.47 $
$6.09 – $735.00 $
8.85 $
8.85 $
$6.09 – $735.00 $
Weighted
Average
Exercise Price
17.10
6.98
7.27
745.50
10.04
7.17
5.47
36.55
8.85
8.85
70.87
F-40
PACIFIC ETHANOL, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
January 2013 Financing – In connection with the January 2013 Financing Transaction, the Company issued warrants to purchase an
aggregate of 1,708,700 shares of common stock. All of the warrants were exercised in 2014.
Series A and B Notes – In connection with the Company’s issuance of its Series A and B Notes, the Company issued warrants to purchase
up to 788,400 and 1,051,200 shares of common stock, respectively. All of the warrants were exercised in 2014.
September 2012 Public Offering – On September 26, 2012, the Company raised $10,091,000, net of $909,000 of underwriting fees and
issuance costs, through a public offering of units consisting of an aggregate of 1,833,000 shares of common stock and warrants immediately
exercisable to purchase an aggregate of 1,833,000 shares of common stock at an exercise price of $8.85 per share and which expire in
September 2015. The Company accounted for the net proceeds of the offering by first allocating the $1,658,000 fair value of the warrants
to liabilities and then allocating the remaining amount to equity. As of December 31, 2015, all of these warrants were either exercised or
expired.
July 2012 Public Offering – On July 3, 2012, the Company raised $10,903,000, net of $1,137,000 of underwriting fees and issuance costs,
through a public offering of units consisting of an aggregate of 1,867,000 shares of common stock, warrants immediately exercisable to
purchase an aggregate of 1,867,000 shares of common stock at an exercise price of $9.45 per share and which expire in 2017 (“Series I
Warrants”) and warrants immediately exercisable to purchase an aggregate of 933,000 shares of common stock at an exercise price of $7.95
per share and which expire in 2014 (“Series II Warrants”). The Series I Warrants and the Series II Warrants are subject to “weighted-
average” anti-dilution adjustments if the Company issues or is deemed to have issued securities at a price lower than their then applicable
exercise prices. Due to subsequent transactions, the exercise price of the Series I Warrants was reduced to $6.09 per share and the exercise
price of the Series II Warrants was reduced to $5.47 per share. The Company accounted for the net proceeds of the offering by first
allocating the $3,380,000 fair value of the warrants to liabilities and then allocating the remaining amount to equity. The Series II Warrants
expired unexercised. As of December 31, 2015, Series I Warrants to purchase 211,000 shares of common stock remained outstanding.
Warrant Inducements – During 2014 and 2013, certain holders exercised warrants and received payments from the Company in the
aggregate amounts of $2,271,000 and $785,800, respectively, in cash as an inducement for these exercises, which were recorded as an
expense. There were no warrant inducements in 2015.
Warrant Terms – The exercise prices of the warrants described above are subject to adjustment for stock splits, combinations or similar
events, and, in such event, the number of shares issuable upon the exercise of the warrants will also be adjusted so that the aggregate
exercise price shall be the same immediately before and immediately after the adjustment. The warrants generally require payments to be
made by the Company for failure to deliver the shares of common stock issuable upon exercise. The warrants may not be exercised if, after
giving effect to the exercise, the investor together with its affiliates would beneficially own in excess of 4.99% of the Company’s
outstanding shares of common stock. The blocker applicable to the exercise of the warrants may be raised or lowered to any other
percentage not in excess of 9.99%, except that any increase will only be effective upon 61-days’ prior notice to the Company. If the
Company issues options, convertible securities, warrants, stock, or similar securities to holders of its common stock generally, each holder
of certain warrants has the right to acquire the same securities as if the holder had exercised its warrants. The warrants prohibit the
Company from entering into specified transactions involving a change of control, unless the successor entity assumes all of the Company’s
obligations under the warrants under a written agreement before the transaction is completed. When there is a transaction involving a
permitted change of control, a holder of a warrant will have the right to force the Company to repurchase the holder’s warrant for a
purchase price in cash equal to the Black-Scholes value (as calculated under the individual warrant agreements) of the then unexercised
portion of the warrant.
Accounting for Warrants – The Company has determined that the warrants issued in the above transactions did not meet the conditions for
classification in stockholders’ equity and as such, the Company has recorded them as a liability at fair value. The Company will revalue
them at each reporting period. Further, as noted above, certain of the exercise prices declined as a result of the anti-dilution adjustments
due to subsequent transactions. Accordingly, the Company recorded fair value adjustments quarterly, with total fair value adjustments of
$1,641,000 of income for the year ended December 31, 2015 and $35,260,000 and $648,000 of expense for the years ended December 31,
2014, 2013, respectively, which is largely attributed to adjustment, if any, to their exercise prices, term shortening and changes in the
market value of the Company’s common stock. See Note 15 for the Company’s fair value assumptions.
F-41
PACIFIC ETHANOL, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Registration Rights Agreements – In connection with the above issuances, the Company entered into a registration rights agreements with
all of the investors to file registration statements on Form S-1 or S-3 with the Securities and Exchange Commission by certain dates for the
resale by the purchasers of the shares of common stock issued and the shares of common stock issuable upon exercise of the warrants.
Subject to customary grace periods, the Company is required to keep the registration statements (and the accompanying prospectuses)
available for use for resale by the investors on a delayed or continuous basis at then-prevailing market prices at all times until the earlier of
(i) the date as of which all of the investors may sell all of the shares of common stock required to be covered by the registration statement
without restriction under Rule 144 under the Securities Act of 1933, as amended (including volume restrictions) and without the need for
current public information required by Rule 144(c)(1), if applicable) or (ii) the date on which the investors have sold all of the shares of
common stock covered by the registration statement. The Company must pay registration delay payments of up to 2% of each investor’s
initial investment per month if the registration statement ceases to be effective prior to the expiration of deadlines provided for in the
registration rights agreement. The initial registration statements became effective by the stated deadlines and the Company did not record
any liability associated with any registration delay payments under the registration rights agreements.
14. STOCK-BASED COMPENSATION.
The Company has two equity incentive compensation plans: a 2004 Stock Option Plan and a 2006 Stock Incentive Plan.
2004 Stock Option Plan – The 2004 Stock Option Plan authorized the issuance of incentive stock options (“ISOs”) and non-qualified stock
options (“NQOs”) to the Company’s officers, directors or key employees or to consultants that do business with the Company for up to an
aggregate of 23,810 shares of common stock. On September 7, 2006, the Company terminated the 2004 Stock Option Plan, except to the
extent of issued and outstanding options then existing under the plan. The Company had options outstanding to purchase 762 shares of
common stock under its 2004 Stock Option Plan at December 31, 2014. These options expired unexercised in 2015.
2006 Stock Incentive Plan – The 2006 Stock Incentive Plan authorizes the issuance of ISOs, NQOs, restricted stock, restricted stock units,
stock appreciation rights, direct stock issuances and other stock-based awards to the Company’s officers, directors or key employees or to
consultants that do business with the Company for up to an aggregate of 1,715,000 shares of common stock.
Stock Options – On June 18, 2013, the Company granted options to purchase an aggregate of 229,000 shares of the Company’s common
stock at an exercise price of $3.74 per share, which was the closing price per share of the Company’s common stock on the date of grant,
with an estimated fair value of $1.68. The options vested as to 33% on each of April 1, 2014 and April 1, 2015 and vest as to 34% on April
1, 2016. The options expire 10 years from the date of grant. Fair value was determined using the Black-Scholes Option Pricing Model. The
inputs to estimating fair value were: exercise price of $3.74; estimated life of 3.0 years; expected volatility of 68.0%, risk free interest rate
of 0.57% and no dividend yield. The Company estimated expected volatility using peer companies within its industry.
Summaries of the status of Company’s stock option plans as of December 31, 2015 and 2014 and of changes in options outstanding under
the Company’s plans during those years are as follows (shares in thousands):
Outstanding at beginning of year
Expired
Outstanding at end of year
Options exercisable at end of year
Number
of Shares
Years Ended December 31,
2015
Weighted
Average
Exercise Price
6.91
867.24
4.18
4.18
241 $
(1)
240 $
164 $
2014
Number
of Shares
241 $
–
241 $
89 $
Weighted
Average
Exercise Price
6.91
–
6.91
11.59
F-42
PACIFIC ETHANOL, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Stock options outstanding as of December 31, 2015 were as follows (number of shares in thousands):
Range of
Exercise Prices
Number
Outstanding
Options Outstanding
Weighted
Average
Remaining
Contractual Life
(yrs.)
Options Exercisable
Weighted
Average
Exercise
Price
Number
Exercisable
Weighted
Average
Exercise
Price
$
$
3.74
12.90
229
11
7.47 $
5.59 $
3.74
12.90
153 $
11 $
3.74
12.90
The options outstanding at December 31, 2015 and 2014 had intrinsic values of $238,000 and $1,509,000, respectively.
Restricted Stock – The Company granted to certain employees and directors shares of restricted stock under its 2006 Stock Incentive Plan
pursuant to restricted stock agreements. A summary of unvested restricted stock activity is as follows (shares in thousands):
Unvested at December 31, 2012
Issued
Vested
Canceled
Unvested at December 31, 2013
Issued
Vested
Canceled
Unvested at December 31, 2014
Issued
Vested
Canceled
Unvested at December 31, 2015
Weighted
Average
Grant Date
Fair Value
Per Share
Number of
Shares
16 $
615 $
(142) $
(17) $
472 $
155 $
(227) $
(10) $
390 $
307 $
(220) $
(14) $
463 $
50.40
4.56
7.85
6.20
5.07
15.23
5.79
4.30
8.71
10.16
7.94
10.08
10.00
The fair value of the common stock at vesting aggregated $2,603,000, $3,858,000 and $601,000 for the years ended December 31, 2015,
2014 and 2013, respectively. Stock-based compensation expense related to employee and non-employee restricted stock and option grants
recognized in selling, general and administrative expenses, were as follows (in thousands):
Employees
Non-employees
Total stock-based compensation expense
Years Ended December 31,
2014
2015
2013
$
$
1,694 $
325
2,019 $
1,493 $
345
1,838 $
1,333
391
1,724
At December 31, 2015, the total compensation cost related to unvested awards which had not been recognized was $4,622,000 and the
associated weighted-average period over which the compensation cost attributable to those unvested awards would be recognized is
approximately 2 years.
F-43
PACIFIC ETHANOL, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
15. COMMITMENTS AND CONTINGENCIES.
Commitments – The following is a description of significant commitments at December 31, 2015:
Leases – Future minimum lease payments required by non-cancelable leases in effect at December 31, 2015 are as follows (in thousands):
Years Ended December 31,
2016
2017
2018
2019
2020
Thereafter
Total minimum payments
Amount representing interest
Obligations under capital leases
Obligations due within one year
Long-term obligations under capital leases
$
$
Capital Leases
Operating Leases
15,662
11,647
8,212
5,558
953
1,649
43,681
4,630 $
3,731
547
–
–
–
8,908 $
(477)
8,431
(4,248)
4,183
Total rent expense during the years ended December 31, 2015, 2014 and 2013 was $9,528,000 $2,417,000 and $1,454,000, respectively.
Sales Commitments – At December 31, 2015, the Company had entered into sales contracts with its major customers to sell certain
quantities of ethanol and co-products. The Company had open ethanol indexed-price contracts for 307,670,000 gallons of ethanol as of
December 31, 2015 and open indexed-price ethanol sales contracts valued at $15,041,000 as of December 31, 2015. The Company had
open fixed-price co-product sales contracts valued at $23,241,000 and open indexed-price co-product sales contracts for 181,000 tons as of
December 31, 2015. These sales contracts are scheduled to be completed throughout 2016.
Purchase Commitments – At December 31, 2015, the Company had indexed-price purchase contracts to purchase 23,944,000 gallons of
ethanol and fixed-price purchase contracts to purchase $5,793,000 of ethanol from its suppliers. The Company had fixed-price purchase
contracts to purchase $20,693,000 of corn from its suppliers. These purchase commitments are scheduled to be satisfied throughout 2016.
Other Commitments – At December 31, 2015, the Company had firm commitments for various capital and process improvement projects at
the Company’s plants of approximately $5,198,000, most of which is expected to be completed in 2016.
Contingencies – The following is a description of significant contingencies at December 31, 2015:
Litigation – The Company is subject to various claims and contingencies in the ordinary course of its business, including those related to
litigation, business transactions, employee-related matters, and others. When the Company is aware of a claim or potential claim, it
assesses the likelihood of any loss or exposure. If it is probable that a loss will result and the amount of the loss can be reasonably
estimated, the Company will record a liability for the loss. If the loss is not probable or the amount of the loss cannot be reasonably
estimated, the Company discloses the claim if the likelihood of a potential loss is reasonably possible and the amount involved could be
material. While there can be no assurances, the Company does not expect that any of its pending legal proceedings will have a material
financial impact on the Company’s operating results.
F-44
PACIFIC ETHANOL, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Pacific Ethanol, Inc., through a subsidiary acquired in its acquisition of Aventine, became involved in a pending lawsuit with Western Sugar
Cooperative (“Western Sugar”) that pre-dated the Aventine acquisition.
On February 27, 2015, Western Sugar filed a complaint in the United States District Court for the District of Colorado (Case No. 1:15-cv-
00415) naming Aventine Renewable Energy, Inc. (“ARE, Inc.”), one of Aventine’s subsidiaries, as defendant. Western Sugar amended its
complaint on April 21, 2015. ARE, Inc. purchased surplus sugar through a United States Department of Agriculture program. Western
Sugar was one of the entities that warehoused this sugar for ARE, Inc. The suit alleges that ARE, Inc. breached its contract with Western
Sugar by failing to pay certain penalty rates for the storage of its sugar or alternatively failing to pay a premium rate for storage. Western
Sugar alleges that the penalty rates apply because ARE, Inc. failed to take timely delivery or otherwise cause timely shipment of the sugar.
Western Sugar claims “expectation damages” in the amount of approximately $8.6 million. ARE, Inc. filed answers to Western Sugar’s
complaint and amended complaint generally denying Western Sugar’s allegations and asserting various defenses. The case is currently in
its discovery phase.
The Company, through subsidiaries acquired in its acquisition of Aventine, became involved in various pending lawsuits with Aurora
Cooperative Elevator Company (“Aurora Coop”) that pre-dated the Aventine acquisition.
On July 26, 2015, the Company settled all outstanding litigation with Aurora Coop. The Company and Aurora Coop agreed to dismiss all
lawsuits with prejudice with no admission of fault or liability by the parties, and to release the alleged option held by Aurora Coop to
repurchase the land upon which the Company’s 110 million gallon ethanol production facility in Aurora, Nebraska is located (the “Aurora
West Facility”). In addition, the parties agreed to terminate the grain supply, marketing and various other agreements between them or their
subsidiaries. Under the terms of the settlement, the Company and Aurora Coop will each bear its own costs and fees associated with the
lawsuits and the settlement. The Company and Aurora Coop agreed to continue to work together to amend or replace certain real property
easements currently in place to ensure continued mutual access by both parties to a system of rails, rail switches, roads, electrical
improvements, and utilities already constructed near the Aurora West Facility.
On May 24, 2013, GS CleanTech Corporation (“GS CleanTech”), filed a suit in the United States District Court for the Eastern District of
California, Sacramento Division (Case No.: 2:13-CV-01042-JAM-AC), naming Pacific Ethanol, Inc. as a defendant. On August 29, 2013,
the case was transferred to the United States District Court for the Southern District of Indiana and made part of the pre-existing multi-
district litigation involving GS CleanTech and multiple defendants. The suit alleged infringement of a patent assigned to GS CleanTech by
virtue of certain corn oil separation technology in use at one or more of the ethanol production facilities in which the Company has an
interest, including Pacific Ethanol Stockton LLC (“PE Stockton”), located in Stockton, California. The complaint sought preliminary and
permanent injunctions against the Company, prohibiting future infringement on the patent owned by GS CleanTech and damages in an
unspecified amount adequate to compensate GS CleanTech for the alleged patent infringement, but in any event no less than a reasonable
royalty for the use made of the inventions of the patent, plus attorneys’ fees. The Company answered the complaint, counterclaimed that
the patent claims at issue, as well as the claims in several related patents, are invalid and unenforceable and that the Company is not
infringing. Pacific Ethanol, Inc. does not itself use any corn oil separation technology and may seek a dismissal on those grounds.
F-45
PACIFIC ETHANOL, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
On March 17 and March 18, 2014, GS CleanTech filed suit naming as defendants two Company subsidiaries: PE Stockton and Pacific
Ethanol Magic Valley, LLC (“PE Magic Valley”). The claims were similar to those filed against Pacific Ethanol, Inc. in May 2013. These
two cases were transferred to the multi-district litigation division in United States District Court for the Southern District of Indiana, where
the case against Pacific Ethanol, Inc. was pending. Although PE Stockton and PE Magic Valley do separate and market corn oil, Pacific
Ethanol, Inc., PE Stockton and PE Magic Valley strongly disagree that either of the subsidiaries use corn oil separation technology that
infringes the patent owned by GS CleanTech. In a January 16, 2015 decision, the District Court for the Southern District of Indiana ruled in
favor of a stipulated motion for partial summary judgment for Pacific Ethanol, Inc., PE Stockton and PE Magic Valley finding that all of
the GS CleanTech patents in the suit were invalid and, therefore, not infringed. GS CleanTech has said it will appeal this decision when the
remaining claim in the suit has been decided. The only remaining claim alleges that GS CleanTech inequitably conducted itself before the
United States Patent Office when obtaining the patents at issue.
A trial in the District Court for the Southern District of Indiana was conducted in October 2015 on that single issue as well as whether GS
CleanTech’s behavior during prosecution of the patents renders this an exceptional case. The Company is awaiting the court’s decision. If
the Defendants, including Pacific Ethanol, Inc., PE Stockton and PE Magic Valley, succeed in proving inequitable conduct, and that GS
CleanTech’s behavior makes this an “exceptional case” such a finding would allow the Court to award to Pacific Ethanol, Inc., PE Stockton
and PE Magic Valley the attorneys’ fees expended to date for defense in this case. It is unknown whether GS CleanTech would appeal such
a ruling.
The Company did not record a provision for these matters as of December 31, 2015 as the Court has now ruled that all of the GS
CleanTech patents in the suit are invalid and, therefore, not infringed. Further, the Company believes a material adverse ruling on appeal
against Pacific Ethanol, Inc., PE Stockton and/or PE Magic Valley is not probable. The Company believes that any liability Pacific Ethanol,
Inc., PE Stockton and/or PE Magic Valley may incur would not have a material adverse effect on the Company’s financial condition or its
results of operations.
The Company has evaluated the above cases as well as other pending cases. The Company currently has recorded $3.3 million as a
litigation contingency liability with respect to these cases for amounts that are probable and estimable.
16. FAIR VALUE MEASUREMENTS.
The fair value hierarchy prioritizes the inputs used in valuation techniques into three levels, as follows:
·
·
·
Level 1 – Observable inputs – unadjusted quoted prices in active markets for identical assets and liabilities;
Level 2 – Observable inputs other than quoted prices included in Level 1 that are observable for the asset or liability through
corroboration with market data; and
Level 3 – Unobservable inputs – includes amounts derived from valuation models where one or more significant inputs are
unobservable. For fair value measurements using significant unobservable inputs, a description of the inputs and the
information used to develop the inputs is required along with a reconciliation of Level 3 values from the prior reporting period.
Pooled separate accounts – Pooled separate accounts invest primarily in domestic and international stocks, commercial paper or single
mutual funds. The net asset value is used as a practical expedient to determine fair value for these accounts. Each pooled separate account
provides for redemptions by the Retirement Plan at reported net asset values per share, with little to no advance notice requirement,
therefore these funds are classified within Level 2 of the valuation hierarchy.
F-46
PACIFIC ETHANOL, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Warrants – Except for the warrants issued September 26, 2012, the Company’s warrants were valued using a Monte Carlo Binomial
Lattice-Based valuation methodology, adjusted for marketability restrictions. The warrants issued September 26, 2012, due to no anti-
dilution protection features, were valued using the Black-Scholes Valuation Model.
The Company recorded its warrants issued from 2011 through 2012 and the conversion features associated with its convertible notes at fair
value and designated them as Level 3 on their issuance dates.
Significant assumptions used and related fair values for the warrants as of December 31, 2015 were as follows:
Original
Exercise Price
Issuance
6.09
07/3/2012
$
8.43
12/13/2011 $
Risk Free
Volatility
49.1%
48.4%
Interest Rate Term (years)
1.51
0.95
0.86%
0.65%
Market
Discount
22.9%
18.3%
Warrants
Outstanding
211,000
138,000
Fair Value
200,000
73,000
273,000
$
Significant assumptions used and related fair values for the warrants as of December 31, 2014 were as follows:
Original
Issuance
09/26/2012 $
$
07/3/2012
$
12/13/2011
Exercise Price
8.85
6.09
8.43
Risk Free
Volatility
51.0%
56.1%
54.3%
Interest Rate Term (years)
0.74
2.51
1.95
0.19%
0.89%
0.67%
Market
Discount
37.0%
32.8%
28.7%
Warrants
Outstanding
473,000
211,000
138,000
Fair Value
748,000
811,000
427,000
$ 1,986,000
The estimated fair value of the warrants is affected by the above underlying inputs. Observable inputs include the values of exercise price,
stock price, term and risk-free interest rate. As separate inputs, an increase (decrease) in either the term or risk free interest rate will result in
an increase (decrease) in the estimated fair value of the warrant.
Unobservable inputs include volatility and market discount. An increase (decrease) in volatility will result in an increase (decrease) in the
estimated warrant value and an increase (decrease) in the market discount will result in a decrease (increase) in the estimated warrant fair
value.
The volatility utilized was a blended average of the Company’s historical volatility and implied volatilities derived from a selected peer
group. The implied volatility component has remained relatively constant over time given that implied volatility is a forward-looking
assumption based on observable trades in public option markets. Should the Company’s historical volatility increase (decrease) on a go-
forward basis, the resulting value of the warrants would increase (decrease).
The market discount, or a discount for lack of marketability, is quantified using a Black-Scholes option pricing model, with a primary
model input of assumed holding period restriction. As the assumed holding period increases (decreases), the market discount increases
(decreases), conversely impacting the value of the warrant fair value.
Convertible Notes – The conversion feature imbedded in the convertible notes was valued using a Monte Carlo Binomial Lattice-Based
valuation methodology, adjusted for marketability restrictions. The Company estimated the fair value of the conversion feature until the
retirement of the convertible notes in December 2013.
Other Derivative Instruments – The Company’s other derivative instruments consist of commodity positions. The fair values of the
commodity positions are based on quoted prices on the commodity exchanges and are designated as Level 1 inputs.
F-47
PACIFIC ETHANOL, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
The following table summarizes recurring fair value measurements by level at December 31, 2015 (in thousands):
Assets:
Derivative financial instruments(1)
$
2,081 $
2,081 $
– $
Fair Value
Level 1
Level 2
Level 3
Defined benefit plan assets(2) (pooled
separate accounts):
Large U.S. Equity (3)
Small/Mid U.S. Equity(4)
International Equity(5)
Fixed Income(6)
Liabilities:
Warrants (7)
Derivative financial instruments(8)
$
$
$
3,662
1,099
1,525
6,281
14,648 $
–
–
–
–
2,081
3,662
1,099
1,525
6,281
12,567 $
(273) $
(1,848)
(2,121) $
– $
(1,848)
(1,848) $
– $
–
– $
(273)
–
(273)
Benefit Plan
Percentage
Allocation
29%
9%
12%
50%
–
–
–
–
–
–
The following table summarizes recurring fair value measurements by level at December 31, 2014 (in thousands):
Assets:
Derivative financial instruments(1)
Liabilities:
Warrants
Derivative financial instruments
Fair Value
Level 1
Level 2
Level 3
$
$
$
$
1,586 $
1,586 $
1,586 $
1,586 $
(1,986) $
(1,149)
(3,135) $
– $
(1,149)
(1,149) $
– $
– $
– $
–
– $
–
–
(1,986)
–
(1,986)
__________
(1) Included in other current assets in the consolidated balance sheets.
(2) See Note 10 for accounting discussion.
(3) This category includes investments in funds comprised of equity securities of large U.S. companies. The funds are valued using the
net asset value method in which an average of the market prices for the underlying investments is used to value the fund.
(4) This category includes investments in funds comprised of equity securities of small- and medium-sized U.S. companies. The funds
are valued using the net asset value method in which an average of the market prices for the underlying investments is used to value
the fund.
(5) This category includes investments in funds comprised of equity securities of foreign companies including emerging markets. The
funds are valued using the net asset value method in which an average of the market prices for the underlying investments is used to
value the fund.
(6) This category includes investments in funds comprised of U.S. and foreign investment-grade fixed income securities, high-yield
fixed income securities that are rated below investment-grade, U.S. treasury securities, mortgage-backed securities, and other asset-
backed securities. The funds are valued using the net asset value method in which an average of the market prices for the underlying
investments is used to value the fund.
(7) Included in warrant liabilities at fair value in the consolidated balance sheets.
(8) Included in accrued liabilities in the consolidated balance sheets.
F-48
PACIFIC ETHANOL, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
For fair value measurements using significant unobservable inputs (Level 3), a description of the inputs and the information used to
develop the inputs is required along with a reconciliation of Level 3 values from the prior reporting period. The changes in the Company’s
fair value of its Level 3 inputs with respect to its warrants were as follows (in thousands):
Balance, December 31, 2012
Issuance of warrants in January offering
Issuance of notes and warrants in March offering
Issuance of notes in June offering
Conversions of notes
Exercises of warrants
Adjustments to fair value for the period
Balance, December 31, 2013
Exercises of warrants
Expiration of warrants
Adjustments to fair value for the period
Balance, December 31, 2014
Exercises of warrants
Expiration of warrants
Adjustments to fair value for the period
Balance, December 31, 2015
F-49
Warrants
Conversion
Features
$
$
$
$
$
4,892 $
2,657 $
1,572
–
–
(260)
(646)
8,215 $
(41,486)
(3)
35,260
1,986 $
(72)
(527)
(1,114)
273 $
–
–
1,401
2,929
(5,205)
–
875
–
–
–
–
–
–
–
–
–
PACIFIC ETHANOL, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
17. PARENT COMPANY FINANCIALS.
Pacific Ethanol, Inc.
Condensed Financial Information of the Registrant
Balance Sheets - Parent Company Only
(in thousands)
Cash and cash equivalents
Receivables from consolidated subsidiaries
Other current assets
Total current assets
Property and equipment, net
Investments in consolidated subsidiaries
Pacific Ethanol West plant term debt
Other assets
Total other assets
Total Assets
Accounts payable and accrued liabilities
Payables to consolidated subsidiaries
Accrued PE Op Co. purchase
Total current liabilities
Warrant liabilities at fair value
Deferred tax liabilities
Other liabilities
Total Liabilities
Preferred stock
Non-voting common stock
Common stock
Additional paid-in capital
Accumulated other comprehensive income
Accumulated deficit
Total Pacific Ethanol, Inc. stockholders' equity
Noncontrolling interests
Total stockholders' equity
$
$
$
December 31,
2015
2014
20,618 $
14,505
11,361
46,484
1,695
301,416
41,763
838
344,017
23,915
8,547
8,647
41,109
2,572
154,134
41,763
1,933
197,830
392,196 $
241,511
1,963 $
13,230
3,828
19,021
273
1,174
184
20,652
1
4
39
902,843
1,040
(532,383)
371,544
–
371,544
2,347
3,526
–
5,873
1,986
15,434
236
23,529
1
–
25
725,813
–
(512,332)
213,507
4,475
217,982
Total Liabilities and Stockholders' Equity
$
392,196 $
241,511
F-50
PACIFIC ETHANOL, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Pacific Ethanol, Inc.
Condensed Financial Information of the Registrant
Statements of Operations - Parent Company Only
(in thousands)
Management fees from subsidiaries
Selling, general and administrative expenses
Asset impairments
Loss from operations
Fair value adjustments and warrant inducements
Interest income
Interest expense
Loss on extinguishments of debt
Income (loss) before provision for income taxes
Provision for income taxes
Income before equity earnings of subsidiaries
Equity earnings of consolidated subsidiaries
Consolidated net income (loss)
Years Ended December 31,
2014
2015
2013
$
$
9,857 $
(14,336)
(1,970)
(6,449)
1,641
5,739
(27)
–
904
–
904
(19,690)
(18,786) $
12,731 $
(12,779)
–
(48)
(37,532)
4,753
(1,813)
(2,363)
(37,003)
–
(37,003)
58,292
21,289 $
9,837
(10,188)
–
(351)
(1,013)
5,088
(3,912)
(9,481)
(9,669)
–
(9,669)
8,888
(781)
F-51
PACIFIC ETHANOL, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Pacific Ethanol, Inc.
Condensed Financial Information of the Registrant
Statements of Cash Flows - Parent Company Only
(in thousands)
Operating Activities:
Net income (loss)
Adjustments to reconcile net income (loss) to cash used in operating
Years Ended December 31,
2014
2015
2013
$
(18,786) $
21,289 $
(781)
activities:
Equity Earnings
Depreciation and amortization
Fair value adjustments
Loss on extinguishments of debt
Asset impairments
Deferred income taxes
Amortization of debt discount
Changes in operating assets and liabilities:
Accounts receivables
Other assets
AP and accruals
Accounts payable with subsidiaries
Net cash used in operating activities
Investing Activities:
Additions to property and equipment
Purchase of PE OP Co. Ownership
Net cash used in Investing activities
Financing Activities:
Preferred stock Dividends
Proceeds from Equity Raise
Proceeds from issuance of senior notes
Proceeds from issuance of convertible notes
Payment on related party Note
Payments on senior notes
Purchase of PE OP Co. debt
Proceeds from exercise of warrants
Net Cash (used in) provided by financing activities
Net (decrease) increase in cash and equivalents
Cash and equivalents at beginning of period
Cash and equivalents at ending of period
19,690
390
(1,641)
–
1,970
(14,260)
–
(5,958)
5,895
604
11,179
(917) $
(58,292)
126
35,260
2,363
–
5,128
1,674
(7,001)
(13,772)
(587)
5,846
(7,966) $
(1,483) $
–
(1,483) $
(455) $
(6,000)
(6,455) $
(1,265) $
–
–
–
–
–
–
368
(897) $
(3,297)
23,915
20,618 $
(3,459) $
26,073
–
–
(750)
(13,984)
(17,038)
43,676
34,518 $
20,097
3,818
23,915 $
(8,888)
104
(648)
9,481
–
–
(179)
(495)
828
(1,358)
1,724
(212)
(72)
(2,340)
(2,412)
(1,265)
–
22,192
14,000
–
(6,208)
(27,088)
2,064
3,695
1,071
2,747
3,818
$
$
$
$
$
$
Restricted Net Assets – At December 31, 2015, the Company had approximately $164.0 million of net assets at its subsidiaries that were
not available to be transferred to the Parent company in the form of dividends, loans or advances due to restrictions contained in the credit
facilities of these subsidiaries.
F-52
PACIFIC ETHANOL, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
18. SUBSEQUENT EVENT.
Pacific Ethanol West Plants’ Term Debt Repayment – On February 26, 2016, the Company retired the $17,003,000 outstanding balance of
the Pacific Ethanol West Plants’ term debt by purchasing the lender’s position for cash at par without any prepayment penalty. This
purchase increased the amount held by Pacific Ethanol to a combined $58,766,000. As a result, the Company has no continuing obligations
to any third-party lender under the credit agreements associated with this term debt.
19. QUARTERLY FINANCIAL DATA (UNAUDITED).
The Company’s quarterly results of operations for the years ended December 31, 2015 and 2014 are as follows (in thousands). Certain of
these calculations has been revised from the calculations previously reported to reflect the participating securities.
First
Quarter
Second
Quarter
Third
Quarter
Fourth
Quarter
December 31, 2015:
$
Net sales
$
Gross profit (loss)
$
Income (loss) from operations
$
Net income (loss) attributed to Pacific Ethanol, Inc.
$
Preferred stock dividends
Income allocated to participating securities
$
Net income (loss) available to common stockholders $
Income (loss) per common share:
206,176 $
(987) $
(5,892) $
(4,380) $
(312) $
– $
(4,692) $
227,621 $
6,254 $
2,261 $
1,010 $
(315) $
(18) $
677 $
380,622 $
(7,380) $
(14,826) $
(14,663) $
(319) $
– $
(14,982) $
Basic
Diluted
$
$
(0.19) $
(0.19) $
0.03 $
0.03 $
(0.36) $
(0.36) $
376,757
9,523
485
(753)
(319)
–
(1,072)
(0.03)
(0.03)
First
Quarter
Second
Quarter
Third
Quarter
Fourth
Quarter
December 31, 2014:
$
Net sales
$
Gross profit
$
Income from operations
$
Net income (loss) attributed to Pacific Ethanol, Inc.
$
Preferred stock dividends
Income allocated to participating securities
$
Net income (loss) available to common stockholders $
Income (loss) per common share:
254,543 $
38,545 $
34,875 $
(10,826) $
(312) $
– $
(11,138) $
321,144 $
33,576 $
29,261 $
15,572 $
(315) $
(462) $
14,795 $
275,573 $
17,986 $
13,594 $
4,025 $
(319) $
(100) $
3,606 $
Basic
Diluted
$
$
(0.69) $
(0.69) $
0.74 $
0.65 $
0.16 $
0.15 $
256,152
18,378
13,647
12,518
(319)
(314)
11,885
0.49
0.48
F-53
INDEX TO EXHIBITS
Exhibit
Number
2.1
2.2
2.3
2.4
2.5
3.1
3.2
3.3
3.4
3.5
3.6
3.7
3.8
10.1
10.2
Description*
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
Agreement for Purchase and Sale of Units in New
PE Holdco LLC dated December 10, 2013
between the Registrant and Armory Fund L.P.
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.
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.
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.
Certificate of Incorporation
Certificate of Designations, Powers, Preferences
and Rights of the Series A Cumulative
Redeemable Convertible Preferred Stock
Certificate of Designations, Powers, Preferences
and Rights of the Series B Cumulative Convertible
Preferred Stock
Certificate of Amendment to Certificate of
Incorporation dated June 3, 2010
Certificate of Amendment to Certificate of
Incorporation effective June 8, 2011
Certificate of Amendment to Certificate of
Incorporation effective May 14, 2013
Certificate of Amendment to Certificate of
Incorporation effective July 1, 2015
Amended and Restated Bylaws
2006 Stock Incentive Plan, as amended#
Form of Employee Restricted Stock Agreement#
Form
10-K
File Number
000-21467
Where Located
Exhibit
Number
2.13
Filing Date
03/31/2014
Filed
Herewith
10-K
000-21467
2.14
03/31/2014
10-K
000-21467
2.15
03/31/2014
8-K
000-21467
2.1
12/31/2014
8-K
000-21467
2.1
04/02/2015
10-Q
10-Q
000-21467
000-21467
10-Q
000-21467
10-Q
000-21467
10-Q
000-21467
10-Q
000-21467
10-Q
000-21467
3.1
3.2
3.3
3.4
3.5
3.6
3.7
10-Q
S-8
8-K
000-21467
333-196876
000-21467
3.1
4.1
10.2
11/06/2015
11/06/2015
11/06/2015
11/06/2015
11/06/2015
11/06/2015
11/06/2015
11/12/2014
06/18/2014
10/10/2006
57
Exhibit
Number
10.3
10.4
10.5
10.6
10.7
10.8
10.9
10.10
10.11
10.12
10.13
10.14
10.15
10.16
Description*
Form of Non-Employee Director Restricted Stock
Agreement#
Amended and Restated Executive Employment
Agreement dated December 11, 2007 between the
Registrant and Neil M. Koehler#
Amended and Restated Executive Employment
Agreement dated December 11, 2007 between the
Registrant and Christopher W. Wright#
Amended and Restated Executive Employment
Agreement dated November 25, 2009 between the
Registrant and Bryon T. McGregor#
Executive Employment Agreement dated January
6, 2013 between the Registrant and Michael D.
Kandris#
Amended and Restated Executive Employment
Agreement dated October 1, 2012 between the
Registrant and Paul P. Kohler#
Employment Agreement dated November 12,
2012 between the Registrant and James R. Sneed#
Pacific Ethanol, Inc. 2015 Short-Term Incentive
Plan Description#
Form of Indemnity Agreement between the
Registrant and each of its Executive Officers and
Directors#
Warrant dated March 27, 2008 issued by the
Registrant to Lyles United, LLC
Registration Rights Agreement dated March 27,
2008 between the Registrant and Lyles United,
LLC
Letter Agreement dated March 27, 2008 between
the Registrant and Lyles United, LLC
Letter Agreement dated May 22, 2008 among the
Registrant, Neil M. Koehler, Bill Jones, Paul P.
Koehler and Thomas D. Koehler#
Form of Warrant dated May 23, 2008 issued by
the Registrant
Form
8-K
File Number
000-21467
Where Located
Exhibit
Number
10.3
Filing Date
10/10/2006
Filed
Herewith
8-K
000-21467
10.3
12/17/2007
8-K
000-21467
10.5
12/17/2007
8-K
000-21467
10.1
11/27/2009
8-K
000-21467
10.1
01/10/2013
10-K
000-21467
10.11
03/31/2014
10-K
000-21467
10.12
03/31/2014
10-K
000-21467
10.46
03/31/2010
X
8-K
8-K
8-K
8-K
000-21467
000-21467
000-21467
000-21467
10.3
10.4
10.5
10.3
03/27/2008
03/27/2008
03/27/2008
05/23/2008
8-K
000-21467
10.2
05/23/2008
58
Exhibit
Number
10.17
10.18
10.19
10.20
10.21
10.22
10.23
10.24
10.25
Description*
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
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
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
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
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
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
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
Form of Warrants dated December 13, 2011 issued
by the Registrant
Form of Series I Warrants issued by the Registrant
on July 3, 2012
Form
8-K
File Number
000-21467
Where Located
Exhibit
Number
10.1
Filing Date
05/08/2012
Filed
Herewith
8-K
000-21467
10.3
07/06/2015
8-K
000-21467
10.2
07/06/2015
8-K
000-21467
10.1
07/06/2015
X
X
8-K
000-21467
10.2
05/08/2012
8-K/A
000-21467
8-K
000-21467
10.2
10.1
12/12/2011
06/28/2012
59
Form
10-Q
File Number
000-21467
Where Located
Exhibit
Number
10.6
Filing Date
11/14/2012
Filed
Herewith
S-1
333-189713
10.44
06/28/2013
8-K
000-21467
10.2
04/01/2014
X
X
Exhibit
Number
10.26
10.27
10.28
10.29
10.30
Description*
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
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
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
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
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
60
Description*
Form File Number
Where Located
Exhibit
Number
Filing Date
Filed
Herewith
X
Exhibit
Number
10.31
10.32
10.33
10.34
10.35
10.36
10.37
10.38
10.39
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
Lender Assignment Agreement dated June 9,
2014 between Pacific Ethanol, Inc. and CWD
OC 522 Master Fund, Ltd.
Lender Assignment Agreement dated June 9,
2014 between Pacific Ethanol, Inc. and
Candlewood Special Situations Master Fund,
Ltd.
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.
Letter Agreement dated May 23, 2014 among
the Registrant and the holders of the
Registrant’s Series B Cumulative Convertible
Preferred Stock
Stockholders Agreement dated December 30,
2014 between Pacific Ethanol, Inc. and the
parties identified therein
Stockholders Agreement dated December 30,
2014 between Pacific Ethanol, Inc. and Credit
Suisse Securities (USA) LLC
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.
Incremental Amendment dated June 18, 2013
among Aventine Renewable Energy
Holdings, Inc., the lenders identified therein,
and Citibank, N.A.
8-K
000-21467
10.1
06/10/2014
8-K
000-21467
10.2
06/10/2014
8-K
000-21467
10.3
06/10/2014
8-K
000-21467
10.1
05/28/2014
8-K
000-21467
10.1
12/31/2014
8-K
000-21467
10.2
12/31/2014
S-4
333-201879
10.1
02/04/2015
S-4
333-201879
10.2
02/04/2015
61
Exhibit
Number
10.40
14.1
21.1
23.1
23.2
31.1
31.2
32.1
101.INS
101.SCH
101.CAL
101.DEF
101.LAB
101.PRE
Description*
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
Code of Ethics
Subsidiaries of the Registrant
Consent of Independent Registered Public
Accounting Firm
Consent of Independent Registered Public
Accounting Firm
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
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
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
XBRL Instance Document
XBRL Taxonomy Extension Schema
XBRL Taxonomy Extension Calculation
Linkbase
XBRL Taxonomy Extension Definition
Linkbase
XBRL Taxonomy Extension Label Linkbase
XBRL Taxonomy Extension Presentation
Linkbase
Form
S-4
File Number
333-201879
Where Located
Exhibit
Number
10.3
Filed
Herewith
Filing Date
02/04/2015
8-K
000-21467
14.1
07/06/2015
X
X
X
X
X
X
X
X
X
X
X
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.
61
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.
SIGNATURES
PACIFIC ETHANOL, INC.
By:
/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
/s/ TERRY L. STONE
Terry L. Stone
/s/ JOHN L. PRINCE
John L. Prince
/s/ DOUGLAS L. KIETA
Douglas L. Kieta
/s/ LARRY D. LAYNE
Larry D. Layne
Chief Operating Officer and Director
March 15, 2016
March 15, 2016
March 15, 2016
March 15, 2016
March 15, 2016
Director
Director
Director
Director
62
EXHIBITS FILED WITH THIS REPORT
Exhibit
Number
10.10
10.21
10.22
10.28
10.30
10.31
21.1
23.1
23.2
31.1
31.2
32.1
Description
Pacific Ethanol, Inc. 2015 Short-Term Incentive Plan Description
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
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
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
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
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
Subsidiaries of the Registrant
Consent of Independent Registered Public Accounting Firm
Consent of Independent Registered Public Accounting Firm
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
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
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
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
_______________
(*) 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.
63
Exhibit 10.10
Pacific Ethanol, Inc. 2015 Short-Term Incentive Plan (“Plan”) Description
·
·
Effective Date: The Plan was adopted by the compensation committee (the “Compensation Committee”) of the board of directors of
Pacific Ethanol, Inc. (the “Company”) on April 14, 2015.
Participants: The Company’s Chief Executive Officer, Chief Financial Officer, Chief Operating Officer, General Counsel, Vice
President of Commodities and Corporate Development and Vice President of Ethanol Supply and Marketing, (“Executive
Officers”), and other officer, director and manager-level personnel will be eligible to participate in the Plan.
· Aggregate Plan Pool: The dollar amount of the aggregate Plan pool will be established by the Compensation Committee.
· Awards: Awards under the Plan for Executive Officers will be determined by the Compensation Committee. Awards under the Plan
for other officer, director and manager-level personnel will be determined by the Company’s executive committee, within the limits
of the Plan pool approved by the Compensation Committee.
·
Individual Targets: The Plan payout targets for Executive Officers will be determined by the Compensation Committee. The Plan
payout targets for other officer, director and manager-level personnel will be set as a percentage of a participant’s base salary in
accordance with compensation policies established by the Company’s executive committee or a participant’s employment
agreement with the Company.
· Award Components: Awards under the Plan will be based on three elements: financial performance, departmental performance and
individual performance. Company financial performance will be an element in all participants’ awards. One or both of the
departmental performance and individual performance elements will also apply. Each element will be assigned a weighting based
upon a participant’s role in the Company.
o
o
o
The financial performance element will be based on an earnings before interest, taxes, debt extinguishments, fair value
adjustments, warrant inducements and depreciation and amortization (“Adjusted EBITDA”) goal established by the
Compensation Committee. The financial performance element is non-discretionary and will be funded at a rate of 0% to
175% of the participant’s targeted payout amount for the element based on the level of actual Adjusted EBITDA compared
to the Adjusted EBITDA goal.
The departmental performance element will be based on quantitative criteria and subjective elements established by the
Company’s executive committee. The extent to which a department will be deemed to have achieved its performance goals
will be determined by the Company’s executive committee in consultation with the Compensation Committee. The
departmental element is discretionary and will be funded at a rate of 0% to 100% of the participant’s targeted payout
amount for the element.
The individual performance element will be based on individual participant goals based on quantitative criteria and
subjective elements established by each participant’s supervisor, in consultation with the Company’s executive committee.
The extent to which a participant will be deemed to have achieved his or her individual performance goals will be
determined by the Company’s executive committee in consultation with the participant’s supervisor; provided, however,
that the extent to which a participant who is an Executive Officer will be deemed to have achieved his or her individual
performance goals will be recommended by the Company’s Chief Executive Officer but ultimately determined by the
Compensation Committee. The individual performance element is discretionary and will be funded at a rate of 0% to 100%
of the participant’s targeted payout amount for the element.
Exhibit 10.21
AMENDMENT NO. 4
TO
AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
This AMENDMENT NO. 4 TO AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT (this “Amendment”) is
entered into as of December 11, 2015, by and among WELLS FARGO CAPITAL FINANCE, LLC, in its capacity as agent (in such
capacity, “Agent”) for the Lenders (as defined in the Loan Agreement referred to below), KINERGY MARKETING LLC (“ Kinergy”),
and PACIFIC AG. PRODUCTS, LLC (“ Pacific Ag ” and together with Kinergy, each individually, a “Borrower” and collectively, the
“Borrowers”).
WHEREAS, Borrowers, Agent and Lenders have entered into certain financing arrangements as set forth in (a) the Amended and
Restated Loan and Security Agreement, dated as of May 4, 2012, by and among Agent, Lenders and Borrowers (as amended, restated,
renewed, extended, supplemented, substituted and otherwise modified from time to time, the “Loan Agreement ”) and (b) the Financing
Agreements (as defined in the Loan Agreement); and
WHEREAS, Borrowers have advised Agent that Pacific AG desires to enter into Marketing Agreements (as defined in the Loan
Agreement) with certain of the Aventine Affiliates, each substantially in the form of Exhibit A attached hereto (the “Pacific AG
Marketing Agreements”);
WHEREAS, Borrowers have advised Agent that Borrowers and Parent desire to replace the Intercompany Operating Agreement
(as defined in the Loan Agreement) with a certain Affiliated Company Agreement, effective as of July 1, 2015, among Borrowers and
Parent, substantially in the form of Exhibit B attached hereto (the “Affiliated Company Agreement”);
WHEREAS, Borrowers, Agent and Lenders have agreed to amend and modify certain provisions of Loan Agreement, subject to
the terms and conditions of this Amendment.
NOW, THEREFORE, upon the mutual agreements and covenants set forth herein and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1. Definitions.
(a) Additional Definitions. The Loan Agreement is hereby amended to add the following new definition thereto:
““Amendment No. 4” shall mean Amendment No. 4 to Amended and Restated Loan and Security
Agreement, dated as of December 11, 2015.”
““Affiliated Company Agreement” shall mean that certain Affiliated Company Agreement, effective as
of July 1, 2015, by and among the Borrowers party thereto, certain of the Aventine Affiliates, and Parent pursuant
to which Parent will provide certain services to Borrowers as more particularly set forth therein, as amended,
restated, modified or supplemented from time to time.”
(b) Interpretation. Capitalized terms used and not defined in this Amendment shall have the respective meanings given
them in the Loan Agreement.
1
2 . Consent. To the extent their consent may be necessary or required under the Loan Agreement or the other Financing
Agreement, Agent and Lenders hereby consent to the consummation of the transactions contemplated by the Pacific AG Marketing
Agreements and the Affiliated Company Agreement.
3. Amendments.
(a) Intercompany Operating Agreement. Section 1.66 of the Loan Agreement is hereby deleted in its entirety and the
following substituted therefor:
“1.66 [Reserved].”
(b) Affiliated Company Agreement. Each Section of the Loan Agreement and the other Financing Documents in which
the term “Intercompany Operating Agreement” appears, including, without limitation, Sections 1.106 (Receivables), 9.12(b) (Transactions
With Affiliates), and 10.1(n) (Events of Default) of the Loan Agreement, is hereby amended to delete the reference to “Intercompany
Operating Agreement” appearing therein and substitute “Affiliate Company Agreement” in lieu thereof.
in its entirety and the following substituted therefor:
(c) Marketing Agreements. The definition of “Marketing Agreements” set forth in the Loan Agreement is hereby deleted
““Marketing Agreements” shall mean each of (i) the Ethanol Marketing Agreements, dated on or about the date of
Amendment No. 3 and (ii) the Co-Product Marketing Agreements, dated on or about the date of Amendment No. 4, by and
among one or more Borrowers and one or more Aventine Affiliates, as amended, and such other marketing agreements that
may be approved by Agent from time to time in its reasonable discretion.”
4 . Additional Representation. In addition to the continuing representations, warranties and covenants at any time made by
Borrowers to Agent and Lenders pursuant to the Loan Agreement and the other Financing Agreements, Borrowers hereby jointly and
severally represent, warrant and covenant with and to Agent and Lenders that as of the date of this Amendment and after giving effect
hereto, no Default or Event of Default exists or has occurred and is continuing.
5. Release. In consideration of the agreements of Agent and Lenders contained herein and the making of loans by or on behalf of
Agent and Lenders to Borrowers pursuant to the Loan Agreement, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, each Borrower and Parent on behalf of itself and its successors, assigns, and other legal
representatives, hereby, jointly and severally, absolutely, unconditionally and irrevocably releases, remises and forever discharges Agent
and each Lender, and their present and former shareholders, affiliates, subsidiaries, divisions, predecessors, directors, officers, attorneys,
employees, agents and other representatives and their respective successors and assigns (Agent, each Lender and all such other parties
being hereinafter referred to collectively as the “Releasees” and individually as a “Releasee”), of and from all demands, actions, causes of
action, suits, covenants, contracts, controversies, agreements, promises, sums of money, accounts, bills, reckonings, damages and any and
all other claims, counterclaims, defenses, rights of set-off, demands and liabilities whatsoever (individually, a “Claim” and collectively,
“Claims”) of every name and nature, known or unknown, suspected or unsuspected, both at law and in equity, whether liquidated or
unliquidated, matured or unmatured, asserted or unasserted, fixed or contingent, foreseen or unforeseen and anticipated or unanticipated,
which any Borrower or Parent, or any of its successors, assigns, or other legal representatives and its successors and assigns may now or
hereafter own, hold, have or claim to have against the Releasees or any of them for, upon, or by reason of any nature, cause or thing
whatsoever which arises at any time on or prior to the day and date of this Agreement, in relation to, or in any way in connection with the
Loan Agreement, as amended and supplemented through the date hereof, this Agreement and the other Financing Agreements. Each
Borrower and Parent understands, acknowledges and agrees that the release set forth above may be pleaded as a full and complete defense
and may be used as a basis for an injunction against any action, suit or other proceeding which may be instituted, prosecuted or attempted in
breach of the provisions of such release.
2
6. Conditions to Effectiveness. The effectiveness of this Amendment shall be subject to the receipt by Agent of:
(a) an original (or electronic copy) of this Amendment duly authorized, executed and delivered by Borrowers and Lenders;
(b) an original (or electronic copy) of a letter agreement re: Consent to Co-Product Marketing Agreements and Release of
Lien on Purchased Assets, duly authorized, executed and delivered by Citibank, N.A., in its capacity as Agent under the Aventine Term
Loan Agreement, and Pacific Ethanol Central, LLC (f/k/a Aventine Renewal Energy Holdings, Inc.); and
(c) an original (or electronic copy) of the Affiliated Company Agreement, duly authorized, executed and delivered by
Parent and Borrowers.
7. Effect of this Amendment. Except as modified pursuant hereto, no other changes or modifications to the Loan Agreement or the
other Financing Agreements are intended or implied and in all other respects the Loan Agreement and other Financing Agreements are
hereby specifically ratified, restated and confirmed by all parties hereto as of the date hereof. To the extent of conflict between the terms of
this Amendment, on the one hand, and Loan Agreement or the other Financing Agreements, on the other hand, the terms of this
Amendment shall control.
8. Further Assurances. Borrowers shall execute and deliver such additional documents and take such additional action as may be
reasonably requested by Agent to effectuate the provisions and purposes of this Amendment.
9. Binding Effect. This Amendment shall be binding upon and inure to the benefit of each of the parties hereto and their respective
successors and assigns.
10. Governing Law. The rights and obligations hereunder of each of the parties hereto shall be governed by and interpreted and
determined in accordance with the internal laws of the State of California (without giving effect to principles of conflict of laws).
3
11. Counterparts. This Amendment may be signed in counterparts, each of which shall be an original and all of which taken
together constitute one agreement. In making proof of this Amendment, it shall not be necessary to produce or account for more than one
counterpart signed by the party to be charged. Delivery of an executed counterpart of this Amendment electronically or by facsimile shall
be effective as delivery of an original executed counterpart of this Amendment.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
4
IN WITNESS WHEREOF, the parties hereto have caused teas Amendment to be duly executed and delivered by their authorized
officers as of the day and year first above written,
BORROWERS:
KINERGY MARKETING LLC,
as a Borrower
By: /s/ Bryon T. McGregor
Name: Bryon T. McGregor
Title: Chief Financial Officer
PACIFIC AG PRODUCTS, LLC,
as a Borrower
By: /s/ Bryon T. McGregor
Name: Bryon T. McGregor
Title: Chief Financial Officer
ACKNOWLEDGED AND AGREED:
PACIFIC ETHANOL, INC.,
as Parent
By: /s/ Bryon T. McGregor
Name: Bryon T. McGregor
Title: Chief Financial Officer
AGENT AND LENDER
WELLS FARGO CAPITAL FINANCE, LLC,
as Agent and sole Lender
By: /s/ Carlos Valles
Name: Carlos Valles
Title: Vice President
Signature Page to Amendment No. 4
Exhibit 10.22
AMENDMENT NO. 5
TO
AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
This AMENDMENT NO. 5 TO AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT (this “Amendment”) is
entered into as of December 28, 2015, by and among WELLS FARGO CAPITAL FINANCE, LLC, in its capacity as agent (in such
capacity, “Agent”) for the Lenders (as defined in the Loan Agreement referred to below), KINERGY MARKETING LLC (“ Kinergy”),
and PACIFIC AG. PRODUCTS, LLC (“ Pacific Ag ” and together with Kinergy, each individually, a “Borrower” and collectively, the
“Borrowers”).
WHEREAS, Borrowers, Agent and Lenders have entered into certain financing arrangements as set forth in (a) the Amended and
Restated Loan and Security Agreement, dated as of May 4, 2012, by and among Agent, Lenders and Borrowers (as amended, restated,
renewed, extended, supplemented, substituted and otherwise modified from time to time, the “Loan Agreement ”) and (b) the Financing
Agreements (as defined in the Loan Agreement); and
WHEREAS, Borrowers, Agent and Lenders have agreed to amend and modify certain provisions of Loan Agreement, subject to
the terms and conditions of this Amendment.
NOW, THEREFORE, upon the mutual agreements and covenants set forth herein and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1. Interpretation. Capitalized terms used and not defined in this Amendment shall have the respective meanings given them in the
Loan Agreement.
2. Amendments.
(a) Fixed Charge Coverage Ratio. The proviso appearing at the end of Section 9.17(b) of the Loan Agreement is hereby
deleted in its entirety and the following substituted therefor:
“; provided, that, this Section 9.17(b) shall not apply to any month for which the Excess Availability was
at all times during such month, and at all times during each of the two (2) prior months, greater than twenty
percent (20%) of the Maximum Credit, except, that, the foregoing test metric shall be based on Liquidity and not
Excess Availability during any consecutive five (5) Business Day period that includes the last Business Day of a
fiscal quarter (not to exceed five (5) total Business Days for any quarter end).”
3 . Additional Representation. In addition to the continuing representations, warranties and covenants at any time made by
Borrowers to Agent and Lenders pursuant to the Loan Agreement and the other Financing Agreements, Borrowers hereby jointly and
severally represent, warrant and covenant with and to Agent and Lenders that as of the date of this Amendment and after giving effect
hereto, no Default or Event of Default exists or has occurred and is continuing.
1
4. Release. In consideration of the agreements of Agent and Lenders contained herein and the making of loans by or on behalf of
Agent and Lenders to Borrowers pursuant to the Loan Agreement, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, each Borrower and Parent on behalf of itself and its successors, assigns, and other legal
representatives, hereby, jointly and severally, absolutely, unconditionally and irrevocably releases, remises and forever discharges Agent
and each Lender, and their present and former shareholders, affiliates, subsidiaries, divisions, predecessors, directors, officers, attorneys,
employees, agents and other representatives and their respective successors and assigns (Agent, each Lender and all such other parties
being hereinafter referred to collectively as the “Releasees” and individually as a “Releasee”), of and from all demands, actions, causes of
action, suits, covenants, contracts, controversies, agreements, promises, sums of money, accounts, bills, reckonings, damages and any and
all other claims, counterclaims, defenses, rights of set-off, demands and liabilities whatsoever (individually, a “Claim” and collectively,
“Claims”) of every name and nature, known or unknown, suspected or unsuspected, both at law and in equity, whether liquidated or
unliquidated, matured or unmatured, asserted or unasserted, fixed or contingent, foreseen or unforeseen and anticipated or unanticipated,
which any Borrower or Parent, or any of its successors, assigns, or other legal representatives and its successors and assigns may now or
hereafter own, hold, have or claim to have against the Releasees or any of them for, upon, or by reason of any nature, cause or thing
whatsoever which arises at any time on or prior to the day and date of this Agreement, in relation to, or in any way in connection with the
Loan Agreement, as amended and supplemented through the date hereof, this Agreement and the other Financing Agreements. Each
Borrower and Parent understands, acknowledges and agrees that the release set forth above may be pleaded as a full and complete defense
and may be used as a basis for an injunction against any action, suit or other proceeding which may be instituted, prosecuted or attempted in
breach of the provisions of such release.
5. Conditions to Effectiveness. The effectiveness of this Amendment shall be subject to the receipt by Agent of an original (or
electronic copy) of this Amendment duly authorized, executed and delivered by Borrowers and Lenders.
6. Effect of this Amendment. Except as modified pursuant hereto, no other changes or modifications to the Loan Agreement or the
other Financing Agreements are intended or implied and in all other respects the Loan Agreement and other Financing Agreements are
hereby specifically ratified, restated and confirmed by all parties hereto as of the date hereof. To the extent of conflict between the terms of
this Amendment, on the one hand, and Loan Agreement or the other Financing Agreements, on the other hand, the terms of this
Amendment shall control.
7. Further Assurances. Borrowers shall execute and deliver such additional documents and take such additional action as may be
reasonably requested by Agent to effectuate the provisions and purposes of this Amendment.
8. Binding Effect. This Amendment shall be binding upon and inure to the benefit of each of the parties hereto and their respective
successors and assigns.
9. Governing Law. The rights and obligations hereunder of each of the parties hereto shall be governed by and interpreted and
determined in accordance with the internal laws of the State of California (without giving effect to principles of conflict of laws).
2
10. Counterparts. This Amendment may be signed in counterparts, each of which shall be an original and all of which taken
together constitute one agreement. In making proof of this Amendment, it shall not be necessary to produce or account for more than one
counterpart signed by the party to be charged. Delivery of an executed counterpart of this Amendment electronically or by facsimile shall
be effective as delivery of an original executed counterpart of this Amendment.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
3
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and delivered by their authorized
officers as of the day and year first above written.
BORROWERS:
KINERGY MARKETING LLC,
as a Borrower
/s/ MIKE KRAMER
By:
Name: Mike Kramer
VP/Treasurer
Title:
PACIFIC AG. PRODUCTS, LLC,
as a Borrower
/s/ MIKE KRAMER
By:
Name: Mike Kramer
Title: VP/Treasurer
ACKNOWLEDGED AND AGREED:
PACIFIC ETHANOL, INC,
as Parent
/s/ MIKE KRAMER
By:
Name: Mike Kramer
VP/Treasurer
Title:
AGENT AND LENDER:
WELLS FARGO CAPITAL FINANCE, LLC,
as Agent and sole Lender
/s/ CARLOS VALLES
By:
Name: Carlos Valles
Vice President
Title:
Signature Page to Amendment No. 5
Exhibit 10.28
SECOND AMENDMENT TO SECOND AMENDED AND RESTATED
CREDIT AGREEMENT
This SECOND AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT (this
"Amendment"), dated as of March 28, 2013, is entered into by and among PACIFIC ETHANOL HOLDING CO. LLC, a Delaware limited
liability company ("Pacific Holding"), PACIFIC ETHANOL MADERA LLC, a Delaware limited liability company ("Madera"), PACIFIC
ETHANOL COLUMBIA, LLC, a Delaware limited liability company ("Boardman"), PACIFIC ETHANOL STOCKTON LLC, a
Delaware limited liability company ("Stockton"), and PACIFIC ETHANOL MAGIC VALLEY, LLC, a Delaware limited liability company
("Burley" and, together with Pacific Holding, Madera, Boardman and Stockton, the "Borrowers"), Pacific Holding, as Borrowers' Agent,
NEW PE HOLDCO LLC, a Delaware limited liability company, as Pledgor (the "Pledgor"), each of the Lenders whose signatures appear
on the signature pages to this Amendment (individually, each a "Consenting Lender" and collectively, the "Consenting Lenders"), WELLS
FARGO BANK, N.A., as administrative agent for the Lenders ("Administrative Agent"), WELLS FARGO BANK, N.A., as collateral
agent for the Senior Secured Parties ("Collateral Agent") and AMARILLO NATIONAL BANK, as accounts bank ("Accounts Bank").
Capitalized terms used but not otherwise defined herein shall have the meaning ascribed to such terms in the Credit Agreement (as
hereinafter defined).
RECITALS
WHEREAS, Borrowers, Borrowers' Agent, the Pledgor, the Lenders party thereto, Administrative Agent, Collateral
Agent and Accounts Bank entered into that certain Second Amended and Restated Credit Agreement dated as of October 29, 2012 (as
amended by the First Amendment to Second Amended and Restated Credit Agreement dated as of January 4, 2013, the "Credit
Agreement");
WHEREAS, Borrowers and Borrowers' Agent have requested, and the Required Lenders have agreed to, certain
amendments to the Credit Agreement upon the terms and subject to the conditions set forth herein in order to, among other things, include
Tranche A-2 Loans held by Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A., "Rabobank Nederland", New York Branch
("Rabobank") as "Designated Tranche A-2 Term Loans" in order that the Maturity Date thereof is June 30, 2016;
hereinafter defined), the Credit Agreement is hereby amended as follows:
NOW, THEREFORE, the parties hereto agree that upon the occurrence of the Amendment Effective Date (as
SECTION 1.
Amendments to Credit Agreement. The Credit Agreement is hereby amended as of the Amendment Effective Date as
follows:
1.1.
Section 11.03(j)(iv) of the Credit Agreement is hereby deleted in its entirety and replaced with the following:
(iv) notwithstanding any provision of this Agreement to the contrary, following (A) the purchase of any Loan or
Commitment by an Affiliated Lender and (B) the payment and performance in full of all obligations under all PEI
Notes, such Affiliated Lender may (but, except as otherwise provided in the foregoing clause (iii), shall not be
obligated to) cancel such Loan and/or terminate such Commitment via contribution to the capital of one or more
Borrowers or otherwise and such Loans and/or Commitments shall be deemed to be no longer outstanding or
available under any provision of the Financing Documents.
1
1.2.
The following new defined terms are hereby added to Exhibit A of the Credit Agreement in the appropriate
alphabetical order as follows:
"PEI Junior Unsecured Notes" means those certain unsecured notes to be issued by Pacific Ethanol pursuant to the
Securities Purchase Agreement dated as of March 28, 2013 by and among Pacific Ethanol and the investors party
thereto.
"PEI Notes" means, collectively, the PEI Senior Unsecured Notes and the PEI Junior Unsecured Notes.
1.3.
The following defined term is hereby deleted and replaced with the following:
"Designated Tranche A-2 Lender" means (a) Candlewood Special Situations Master Fund, Ltd., CWD OC 522
Master Fund Ltd. and Credit Suisse Loan Funding LLC, (b) Cooperatieve Centrale RaiffeisenBoerenleenbank
B.A., "Rabobank Nederland", New York Branch, (c) any Affiliated Lender or (d) any assignee of any Lender
described in the foregoing clauses (a), (b) and (c).
SECTION 2.
Payment of Costs and Fees. Each Borrower (i) reaffirms its obligations under Section 11.07 of the Credit Agreement and (ii)
without limiting the provisions set forth in Section 11.07 of the Credit Agreement, acknowledges, consents and agrees that
it shall promptly pay, upon receipt of invoices therefor, to the Administrative Agent and each Consenting Lender all
reasonable out-of-pocket costs, fees, expenses and charges of every kind in connection with the preparation, negotiation,
execution and delivery of this Amendment incurred by or on behalf of such Persons, including, without limitation, the
reasonable fees and disbursements of Sidley Austin LLP, counsel to certain Consenting Lenders.
SECTION 3.
Acknowledgements.
3.1.
Reaffirmation of Obligations. Each Loan Party hereby (a) reaffirms, acknowledges, confirms and agrees to its
respective guarantees, pledges and grants of security interests and other commitments and Obligations under the
Financing Documents and (b) confirms and agrees that the Financing Documents and all guarantees, pledges and
grants of security interests and other commitments and Obligations thereunder shall continue to be in full force and
effect following the effectiveness of this Amendment. All Obligations under the Credit Agreement and the other
Financing Documents owing by the Loan Parties to the Administrative Agent, the Collateral Agent, the Accounts
Bank and each Lender, as the case may be, are unconditionally owing by the Loan Parties to the Administrative
Agent, the Collateral Agent and each Lender, as the case may be, without offset, defense or counterclaim of any
kind, nature or description whatsoever.
2
3.2.
3.3.
Acknowledgement of Security Interests. Each Loan Party hereby acknowledges, confirms and agrees that the
Collateral Agent, for itself and the benefit of Senior Secured Parties, has and shall continue to have valid,
enforceable and perfected first-priority liens (subject only to Permitted Liens) upon and security interests in the
Collateral granted to the Collateral Agent, for itself and the benefit of Senior Secured Parties, pursuant to the
Financing Documents.
Binding Effect of Documents. Each Loan Party hereby acknowledges, confirms and agrees that: (i) each of the
Financing Documents to which it is a party has been duly executed and delivered to the Administrative Agent, the
Collateral Agent, the Accounts Bank and the Lenders thereto by it, and each is in full force and effect as of the
Amendment Effective Date, (ii) the agreements and obligations of such Loan Party contained in the Credit
Agreement as amended by this Amendment (the "Amended Credit Agreement"), in each of the other Financing
Documents and in this Amendment constitute the legal, valid and binding obligations of such Loan Party,
enforceable against such Loan Party in accordance with their respective terms, and such Loan Party has no valid
defense to the enforcement of the obligations under the Amended Credit Agreement or the other Financing
Documents, except as enforceability may be limited by bankruptcy, insolvency, moratorium, reorganization or
other similar laws limiting creditors rights generally and except as enforceability may be limited by general
principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and
(iii) the Administrative Agent, the Collateral Agent, the Accounts Bank and each Lender are and shall be entitled to
the rights, remedies and benefits provided for in the Financing Documents and under applicable law or at equity.
SECTION 4.
Representations and Warranties of Loan Parties. Each of the Loan Parties hereby represents and warrants in favor of the
Administrative Agent, the Collateral Agent, the Accounts Bank and each Lender as follows:
4.1.
The execution, delivery and performance by such Loan Party of this Amendment and the performance of the
Amended Credit Agreement are within such Loan Party's powers and have been duly authorized by all necessary
action on the part of such Loan Party.
3
4.2.
4.3.
4.4.
4.5.
4.6.
This Amendment has been duly executed and delivered by such Loan Party and each of this Amendment, the
Amended Credit Agreement and the other Financing Documents constitutes a legal, valid and binding obligation of
such Loan Party enforceable in accordance with its terms except as enforceability may be limited by bankruptcy,
insolvency, moratorium, reorganization or other similar laws limiting creditors rights generally and except as
enforceability may be limited by general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
The execution, delivery or performance of this Amendment by such Loan Party (i) does not require any consent or
approval of, registration of filing with, or any other action by, any Person (including, without limitation, any
Governmental Authority) except (A) such as have been obtained or made and are in full force and effect and (B)
filings necessary to perfect Liens created by the Financing Documents, (ii) will not violate the organizational or
governing documents of any Loan Party and (iii) will not violate any applicable Law or any Contractual Obligation
applicable to or binding upon such Loan Party or any of their respective properties or assets.
No event has occurred or is continuing, that would constitute a Default or an Event of Default under the Credit
Agreement, the Amended Credit Agreement or any other Financing Document.
As of the Amendment Effective Date, no litigation by, investigation known to such Loan Party by, or proceeding
of, any Governmental Authority is pending or, to the knowledge of such Loan Party, has been threatened against
such Loan Party which (i) challenges such Loan Party's right, power, or competence to enter into this Amendment
or perform any of its obligations under this Amendment, the Amended Credit Agreement or any other the
Financing Documents or the validity or enforceability of this Amendment, the Amended Credit Agreement or any
other Financing Document or any action taken under this Amendment, the Amended Credit Agreement or any other
Financing Document or (ii) is reasonably likely, if adversely decided, to have a Material Adverse Effect.
After giving effect to this Amendment, the representations and warranties of such Loan Party contained in the
Amended Credit Agreement and the other Financing Documents are true and correct in all material respects
(provided, that if any representation or warranty is by its terms qualified by concepts of materiality, such
representation shall be true and correct in all respects) on and as of the Amendment Effective Date with the same
effect as if such representations and warranties had been made on and as of such date, except that any such
representation or warranty which is expressly made only as of a specified date need be true only as of such date.
4
SECTION 5.
Conditions to Effectiveness of this Amendment. This Amendment shall become effective as of the first date on or prior to
March 28, 2013 on which each of the following conditions has been satisfied (or waived in writing by the Required
Lenders) (the "Amendment Effective Date"):
5.1.
5.2.
5.3.
5.4.
Amendment. The Administrative Agent shall have received duly executed counterparts of this Amendment from
each Loan Party, the Required Lenders, the Collateral Agent, the Administrative Agent and the Accounts Bank.
Costs and Expenses. The Borrowers shall have paid all fees, costs and expenses incurred in connection with this
Amendment and any other Financing Documents that have been invoiced and are required to be paid hereunder or
under the Credit Agreement (including, without limitation, reasonable legal fees and expenses of the Administrative
Agent and each Consenting Lender).
Representations and Warranties. The representations and warranties made or deemed made by the Loan Parties
under this Amendment shall be true and correct (subject to the materiality qualifiers set forth in such representations
and warranties) as of the Amendment Effective Date.
Customary Closing Documents. The Consenting Lenders shall have received such officer's certificates, secretary's
certificates, resolutions, lien searches and other customary deliverables as they shall request.
Upon satisfaction of the foregoing closing conditions, one or more of the Consenting Lenders shall promptly provide
written confirmation to Borrowers' Agent and the Administrative Agent of such satisfaction and identify the Amendment
Effective Date. For avoidance of doubt, the parties to this Amendment acknowledge and agree that any assignment of the
Tranche A-2 Loans held by Rabobank to Pacific Ethanol or its Affiliates shall be deemed to have occurred after this
Amendment becomes effective.
5
SECTION 6.
Effect on the Financing Documents.
6.1.
6.2.
6.3.
Except as set forth in this Amendment, the Credit Agreement and each of the other Financing Documents shall be
and remain unchanged and in full force and effect in accordance with their respective terms, are hereby ratified and
confirmed in all respects and the Administrative Agent, the Collateral Agent, the Accounts Bank and each Lender
expressly reserves the right to require strict compliance with the terms of the Credit Agreement (and, following the
Amendment Effective Date, the Amended Credit Agreement) and the other Financing Documents. The execution,
delivery, and performance of this Amendment shall not operate as a modification or waiver of any right, power, or
remedy of any Agent or any Lender under the Credit Agreement (and, following the Amendment Effective Date,
the Amended Credit Agreement) or any other Financing Document and no such action shall be construed as (i) a
waiver or forbearance of any of the Administrative Agent's, the Collateral Agent's, the Accounts Bank's or the
Lenders' rights, remedies, and powers against the Borrowers, any other Loan Party or the Collateral (including,
without limitation, the right to terminate without notice the making of Revolving Loans) or (ii) a waiver of any
Default or Event of Default. Notwithstanding any provision of this Amendment, nothing herein shall adversely
affect the rights, remedies, duties, liabilities, obligations and/or responsibilities of any Lender that has not
consented to the terms hereof to the extent such consent may be required pursuant to the Credit Agreement,
including Section 11.01 thereof.
Upon and after the effectiveness of this Amendment, each reference in the Credit Agreement to "this Agreement,"
"hereunder," "herein," "hereof' or words of like import referring to the Credit Agreement, and each reference in the
other Financing Documents to "the Credit Agreement," "thereunder," "therein," "thereof' or words of like import
referring to the Credit Agreement, shall mean and be a reference to the Credit Agreement as modified by this
Amendment.
To the extent that any terms and conditions in any of the Financing Documents shall contradict or be in conflict
with any terms or conditions of the Credit Agreement, after giving effect to this Amendment, such terms and
conditions are hereby deemed modified or amended accordingly to reflect the terms and conditions of the Credit
Agreement as modified hereby (except to the extent that such contradiction or conflict is expressly permitted by this
Amendment).
SECTION 7.
Governing Law. This Amendment shall be governed by, and construed and interpreted in accordance with, the laws of the
State of New York, without regard to conflicts of law principles that would require the application of laws of another
jurisdiction.
SECTION 8.
Financing Document. This Amendment shall be deemed to be a Financing Document for all purposes.
6
SECTION 9.
Release by Loan Parties. As of the Effective Date, each Loan Party hereby waives, releases, remises and forever discharges
the Administrative Agent, the Collateral Agent, the Accounts Bank, each Lender, each of the other Senior Secured Parties,
each of their respective Affiliates and each of the officers, directors, employees, and professionals of each Lender, the
Administrative Agent, the Collateral Agent, the Accounts Bank and each of the other Senior Secured Parties and their
respective Affiliates (collectively, the "Releasees"), from any and all claims, demands, obligations, liabilities, causes of
action, damages, losses, costs and expenses of any kind or character, known or unknown, past or present, liquidated or
unliquidated, suspected or unsuspected, which such Loan Party ever had from the beginning of the world or now has or that
any of the Loan Parties' respective successors and assigns hereafter can or may have against any such Releasee which
relates, directly or indirectly to the Credit Agreement, any other Financing Document, or to any acts or omissions of any
such Releasee relating to the Credit Agreement or any other Financing Document in each case, pertaining to facts, events or
circumstances existing on or prior to the date hereof, including, without limitation, the execution and delivery by any and all
Releasees of this Amendment, except for the duties and obligations expressly set forth in this Amendment, the Credit
Agreement and the other Financing Documents (as modified by the provisions hereof). As to each and every claim released
hereunder, each Loan Party hereby represents that it has received the advice of legal counsel with regard to the releases
contained herein, and waives the benefits of each provision of applicable federal or state law (including, without limitation,
the laws of the state of New York), if any, pertaining to general releases after having been advised by its legal counsel with
respect thereto. Each Loan Party understands that the facts which they believe to be true at the time of making the release
provided for herein may later turn out to be different than they now believe, and that information which is not now known
or suspected may later be discovered. Each Loan Party accepts this possibility, and each Loan Party assumes the risk of the
facts being different and new information being discovered; and each Loan Party further agrees that the release provided for
herein shall in all respects continue to be effective and not subject to termination or rescission because of any difference in
such facts or any new information.
SECTION 10.
Severability. Wherever possible, each provision of this Amendment shall be interpreted in such a manner as to be effective
and valid under applicable law, but if any provision of this Amendment shall be prohibited by or invalid under applicable
law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of
such provision or the remaining provisions of this Amendment.
SECTION 11. Counterparts. This Amendment may be executed by one or more of the parties hereto on any number of separate
counterparts, each of which shall be deemed an original and all of which, taken together, shall be deemed to constitute one
and the same instrument. Delivery of an executed counterpart of this Amendment by facsimile or other electronic
transmission shall be as effective as delivery of a manually executed counterpart hereof.
7
SECTION 12.
SECTION 13.
Lender Direction. Each of the undersigned Lenders hereby directs each of the Administrative Agent, the
Collateral Agent and the Accounts Bank to execute and deliver this Amendment and to perform its respective
obligations hereunder.
Extending Lenders. Candlewood Special Situations Master Fund, LTD. and CWD OC 522 Master Fund, LTD.
(collectively the "Candlewood Funds") acknowledge and agree that (a) the Candlewood Funds have or will
become Extending Lenders and (b) on or before April 30, 2013 the Candlewood Funds will either (i) execute
and deliver such additional documents as Administrative Agent and Borrowers' Agent may reasonably require to
confirm the Candlewood Funds status as an Extending Lender or (ii) acquire by assignment a portion of the
Loans held by Credit Suisse Loan Funding LLC (which is an Extending Lender) in order to become an
Extending Lender pursuant to clause (c) of the definition of such term in the Credit Agreement.
[Signature Pages Follow]
8
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their respective officers as
of the day and year first written above.
PACIFIC ETHANOL HOLDING CO. LLC, as a Borrower and as
Borrowers' Agent
By:
/s/ Bryon T. McGregor
Name: Bryon T. McGregor
Title: Chief Operating Officer
PACIFIC ETHANOL MADERA LLC, as a Borrower
By:
/s/ Bryon T. McGregor
Name: Bryon T. McGregor
Title: Chief Operating Officer
PACIFIC ETHANOL COLUMBIA, LLC, as a Borrower
By:
/s/ Bryon T. McGregor
Name: Bryon T. McGregor
Title: Chief Operating Officer
PACIFIC ETHANOL STOCKTON LLC, as a Borrower
By:
/s/ Bryon T. McGregor
Name: Bryon T. McGregor
Title: Chief Operating Officer
PACIFIC ETHANOL MAGIC VALLEY, LLC, as a Borrower
By:
/s/ Bryon T. McGregor
Name: Bryon T. McGregor
Title: Chief Operating Officer
Signature Page to Second Amendment to Second Amended and Restated Credit Agreement
NEW PE HOLDCO, LLC, as Pledgor
By:
/s/ Bryon T. McGregor
Name: Bryon T. McGregor
Title: Chief Operating Officer
Signature Page to Second Amendment to Second Amended and Restated Credit Agreement
AMARILLO NATIONAL BANK, as Accounts Bank
By:
/s/ Craig L. Sanders
Name: Craig L. Sanders
Title:
Executive Vice President
Signature Page to Second Amendment to Second Amended and Restated Credit Agreement
WELLS FARGO BANK, N. A., as Administrative Agent and
Collateral Agent
By:
/s/ Michael Pinzon
Name: Michael Pinzon
Title: Vice President
Signature Page to Second Amendment to Second Amended and Restated Credit Agreement
REQUIRED LENDER:
CANDLEWOOD CREDIT VALUE MASTER FUND II LP
By:
Credit Value Partners, LP, as Investment Manager
By:
/s/ Michael Geroux
Name: Michael Geroux
Partner
Title:
Signature Page to Second Amendment to Second Amended and Restated Credit Agreement
REQUIRED LENDER:
CANDLEWOOD SPECIAL SITUATIONS FUND, LP
By:
/s/ David Koenig
Name: David Koenig
Title: Authorized Signatory
Signature Page to Second Amendment to Second Amended and Restated Credit Agreement
REQUIRED LENDER:
CANDLEWOOD SPECIAL SITUATIONS MASTER FUND, LTD.
By:
/s/ David Koenig
Name: David Koenig
Title: Authorized Signatory
Signature Page to Second Amendment to Second Amended and Restated Credit Agreement
REQUIRED LENDER:
CWD OC 522 MASTER FUND, LTD.
By:
/s/ David Koenig
Name: David Koenig
Title: Authorized Signatory
Signature Page to Second Amendment to Second Amended and Restated Credit Agreement
REQUIRED LENDER:
CREDIT SUISSE LOAN FUNDING LLC
By:
By:
/s/ Robert Healey
Name: Robert Healey
Title: Authorized Signatory
/s/ Michael Wotanowski
Name: Michael Wotanowski
Title: Authorized Signatory
Signature Page to Second Amendment to Second Amended and Restated Credit Agreement
REQUIRED LENDER:
METROPOLITAN LIFE INSURANCE COMPANY
By:
/s/ David Yu
Name: David Yu
Title: Director
Signature Page to Second Amendment to Second Amended and Restated Credit Agreement
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A., “RABOBANK NEDERLAND”, NEW
YORK BRANCH
By:
By:
/s/ Benjamin Matz
Name: Benjamin Matz
Title: Vice President
/s/ William Fitzgerald
Name: William Fitzgerald
Title: Managing Director
Signature Page to Second Amendment to Second Amended and Restated Credit Agreement
The undersigned, as Collateral Agent under the Senior Credit Agreement, hereby acknowledges receipt of notice of the foregoing
Amendment as required pursuant to Section 7.01(b) of the Intercreditor Agreement.
ACCEPTANCE OF NOTICE
WELLS FARGO BANK, N.A., as Collateral Agent
By:
/s/ Michael Pinzon
Name: Michael Pinzon
Title: Vice President
Signature Page to Second Amendment to Second Amended and Restated Credit Agreement
Exhibit 10.30
FOURTH AMENDMENT TO SECOND AMENDED AND RESTATED
CREDIT AGREEMENT
This FOURTH AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT (this “ Amendment”),
dated as of January 30, 2016 (the “Effective Date”), is entered into by and among PACIFIC ETHANOL HOLDING CO. LLC, a Delaware
limited liability company (“Pacific Holding”), PACIFIC ETHANOL MADERA LLC, a Delaware limited liability company (“ Madera”),
PACIFIC ETHANOL COLUMBIA, LLC, a Delaware limited liability company (“Boardman”), PACIFIC ETHANOL STOCKTON LLC,
a Delaware limited liability company (“Stockton”), and PACIFIC ETHANOL MAGIC VALLEY, LLC, a Delaware limited liability
company (“Burley” and, together with Pacific Holding, Madera, Boardman and Stockton, the “Borrowers”), Pacific Holding, as Borrowers’
Agent, PE OP CO., a Delaware corporation (f/k/a New PE Holdco LLC), as Pledgor (the “Pledgor” and together with Borrowers and Pacific
Holding as Borrower’s Agent, the “Borrower Parties”), each of the Lenders, WELLS FARGO BANK, N.A., as administrative agent for the
Lenders (“Administrative Agent”), and WELLS FARGO BANK, N.A., as collateral agent for the Senior Secured Parties (“ Collateral
Agent”). Capitalized terms used but not otherwise defined herein shall have the meaning ascribed to such terms in the Credit Agreement (as
hereinafter defined).
RECITALS
WHEREAS, the Borrower Parties, the Lenders party thereto, Administrative Agent, Collateral Agent, and Accounts Bank, entered
into that certain Second Amended and Restated Credit Agreement dated as of October 29, 2012 (as amended to date, the “ Credit
Agreement”);
WHEREAS, pursuant to the Credit Agreement, three separate commitments were extended to the Borrowers, a Tranche A-1 Term
Loan, a Tranche A-2 Term Loan and a Revolving Loan (which Revolving Loan includes a letter of credit sub-facility commitment, the
“Letter of Credit Sub-facility”), all as further described in the Credit Agreement, including Sections 2.01 through 2.03 thereof);
WHEREAS, pursuant to Section 2.03 of the Credit Agreement, the Letter of Credit Sub-facility was terminated and no letters of
credit remain outstanding with respect to Letter of Credit Sub-facility; and
WHEREAS, pursuant to that certain Acknowledgement and Confirmation of Termination of Lender Commitments dated as of
December 29, 2015 (the “Acknowledgement”) executed by Borrower Parties in favor of Administrative Agent, Collateral Agent and
Lenders, Borrower Parties acknowledged and confirmed to Administrative Agent, Collateral Agent and Lenders that the Revolving Loan
Commitment has been terminated and, pursuant to that Acknowledgement, further agreed to enter into this Amendment with Administrative
Agent, Collateral Agent and Lenders to confirm and otherwise formally document such termination on the terms and conditions set forth
below;
NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy of which is hereby acknowledged and
confirmed, the parties hereto hereby agree as follows:
SECTION 1.
Amendments. The Credit Agreement is hereby amended as follows:
1.1
By amending the definitions of “Aggregate Revolving Loan Commitment” and “Revolving Loan Commitment” in
their entirety to read as follows:
““Aggregate Revolving Loan Commitment” means $0.”
1
““Revolving Loan Commitment” means $0.”
1.2
By amending Section 3.11(a) in its entirety to read as follows:
“(a) Reserved.”
SECTION 2.
SECTION 3.
Confirmation of Termination of Revolving Loan Commitment . It is hereby confirmed that effective as of no later than
December 29, 2015, (i) there are no outstanding Revolving Loans under the Credit Agreement and the Revolving Loan
Commitment of each Revolving Lender has been unconditionally and permanently terminated (which termination includes
confirmation of the unconditional and permanent termination of the Letter of Credit Sub-facility).
Payment of Costs and Fees. Each Borrower (i) reaffirms its obligations under Section 11.07 of the Credit Agreement and (ii)
without limiting the provisions set forth in Section 11.07 of the Credit Agreement, acknowledges, consents and agrees that
it shall promptly pay, upon receipt of invoices therefor, to the Administrative Agent, the Collateral Agent and each Lender
all reasonable out-of-pocket costs, fees, expenses and charges of every kind in connection with the preparation, negotiation,
execution and delivery of this Amendment incurred by or on behalf of such Persons, including, without limitation, the
reasonable fees and disbursements of Kelley Drye & Warren LLP, counsel to the Administrative Agent and the Collateral
Agent.
SECTION 4.
Acknowledgements.
4.1.
4.2.
4.3.
Reaffirmation of Obligations. Each Borrower Party hereby (a) reaffirms, acknowledges, confirms and agrees to its
respective guarantees, pledges and grants of security interests and other commitments and Obligations under the
Financing Documents and (b) confirms and agrees that the Financing Documents and all guarantees, pledges and
grants of security interests and other commitments and Obligations thereunder shall continue to be in full force and
effect following the effectiveness of this Amendment. All Obligations under the Credit Agreement and the other
Financing Documents owing by the Borrower Parties to the Administrative Agent, the Collateral Agent, the
Accounts Bank and each Lender, as the case may be, are unconditionally owing by the Borrower Parties to the
Administrative Agent, the Collateral Agent, the Accounts Bank and each Lender, as the case may be, without
offset, defense or counterclaim of any kind, nature or description whatsoever.
Acknowledgement of Security Interests. Each Borrower Party hereby acknowledges, confirms and agrees that the
Collateral Agent, for itself and the benefit of Senior Secured Parties, has and shall continue to have valid,
enforceable and perfected first-priority liens (subject only to Permitted Liens) upon and security interests in the
Collateral granted to the Collateral Agent, for itself and the benefit of Senior Secured Parties, pursuant to the
Financing Documents.
Binding Effect of Documents. Each Borrower Party hereby acknowledges, confirms and agrees that: (i) each of the
Financing Documents to which it is a party has been duly executed and delivered to the Administrative Agent, the
Collateral Agent, the Accounts Bank and the Lenders party thereto by it, and each is in full force and effect as of
the Effective Date, (ii) the agreements and obligations of such Borrower Party contained in the Credit Agreement,
in each of the other Financing Documents and in this Amendment constitute the legal, valid and binding obligations
of such Borrower Party, enforceable against such Borrower Party in accordance with their respective terms, and
such Borrower Party has no valid defense to the enforcement of the obligations under the Credit Agreement or the
other Financing Documents, except as enforceability may be limited by bankruptcy, insolvency, moratorium,
reorganization or other similar laws limiting creditors rights generally and except as enforceability may be limited
by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or
at law) and (iii) the Administrative Agent, the Collateral Agent, the Accounts Bank and each Lender are and shall
be entitled to the rights, remedies and benefits provided for in the Financing Documents and under applicable law
or at equity.
2
SECTION 5.
Representations and Warranties of Borrower Parties . Each of the Borrower Parties hereby represents and warrants in favor
of the Administrative Agent, the Collateral Agent, the Accounts Bank and each Lender as follows:
5.1.
5.2
5.3.
5.4.
5.5.
5.6.
The execution, delivery and performance by such Borrower Party of this Amendment are within such Borrower
Party’s powers and have been duly authorized by all necessary action on the part of such Borrower Party.
This Amendment has been duly executed and delivered by such Borrower Party and this Amendment constitutes a
legal, valid and binding obligation of such Borrower Party enforceable in accordance with its terms except as
enforceability may be limited by bankruptcy, insolvency, moratorium, reorganization or other similar laws limiting
creditors rights generally and except as enforceability may be limited by general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law).
The execution, delivery or performance of this Amendment by such Borrower Party (i) does not require any
consent or approval of, registration of filing with, or any other action by, any Person (including, without limitation,
any Governmental Authority) except such as have been obtained or made and are in full force and effect, (ii) will
not violate the organizational or governing documents of any Borrower Party and (iii) will not violate any
applicable Law or any Contractual Obligation applicable to or binding upon such Borrower Party or any of their
respective properties or assets.
No event has occurred or is continuing, that would constitute a Default or an Event of Default under the Credit
Agreement or any other Financing Document.
As of the Effective Date no litigation by, investigation known to such Borrower Party by, or proceeding of, any
Governmental Authority is pending or, to the knowledge of such Borrower Party, has been threatened against such
Borrower Party which (i) challenges such Borrower Party’s right, power, or competence to enter into this
Amendment or perform any of its obligations under this Amendment or the validity or enforceability of this
Amendment or any action taken under this Amendment or (ii) is reasonably likely, if adversely decided, to have a
Material Adverse Effect.
After giving effect to this Amendment, the representations and warranties of such Borrower Party contained in the
Credit Agreement and the other Financing Documents are true and correct in all material respects (provided, that if
any representation or warranty is by its terms qualified by concepts of materiality, such representation shall be true
and correct in all respects) on and as of the Effective Date with the same effect as if such representations and
warranties had been made on and as of such date, except that any such representation or warranty which is
expressly made only as of a specified date need be true only as of such date.
3
SECTION 6.
Conditions to Effectiveness of this Amendment. This Amendment shall be effective only if and when signed by, and when
counterparts hereof shall have been delivered to the Administrative Agent (by hand delivery, mail, telecopy or other
electronic transmission) by, the Borrower Parties and the Lenders.
SECTION 7.
Effect on the Financing Documents.
7.1.
7.2.
7.3.
Except as set forth in this Amendment, the Credit Agreement and each of the other Financing Documents shall be
and remain unchanged and in full force and effect in accordance with their respective terms, are hereby ratified and
confirmed in all respects and the Administrative Agent, the Collateral Agent, the Accounts Bank and each Lender
expressly reserves the right to require strict compliance with the terms of the Credit Agreement (and, following the
Effective Date, the Credit Agreement, as amended by this Amendment) and the other Financing Documents. The
execution, delivery, and performance of this Amendment shall not operate as a modification or waiver of any right,
power, or remedy of any Agent or any Lender under the Credit Agreement (and, following the Effective Date, , the
Credit Agreement, as amended by this Amendment) or any other Financing Document and no such action shall be
construed as (i) a waiver or forbearance of any of the Administrative Agent’s, the Collateral Agent’s, the Accounts
Bank’s or the Lenders’ rights, remedies, and powers against the Borrowers, any other Borrower Party or the
Collateral or (ii) a waiver of any Default or Event of Default. Notwithstanding any provision of this Amendment,
nothing herein shall adversely affect the rights, remedies, duties, liabilities, obligations and/or responsibilities of
any Lender that has not consented to the terms hereof to the extent such consent may be required pursuant to the
Credit Agreement, including Section 11.01 thereof.
Upon and after the effectiveness of this Amendment, each reference in the Credit Agreement to “this Agreement,”
“hereunder,” “herein,” “hereof” or words of like import referring to the Credit Agreement, and each reference in
the other Financing Documents to “the Credit Agreement,” “thereunder,” “therein,” “thereof” or words of like
import referring to the Credit Agreement, shall mean and be a reference to the Credit Agreement as modified by
this Amendment.
To the extent that any terms and conditions in any of the Financing Documents shall contradict or be in conflict
with any terms or conditions of the Credit Agreement, after giving effect to this Amendment, such terms and
conditions are hereby deemed modified or amended accordingly to reflect the terms and conditions of the Credit
Agreement as modified hereby (except to the extent that such contradiction or conflict is expressly permitted by this
Amendment).
SECTION 8.
Ratification. Except as expressly modified hereby or waived herein, the Credit Agreement and the other Financing
Documents shall be and remain unchanged and in full force and effect in accordance with their respective terms, are hereby
ratified and confirmed in all respects.
4
SECTION 9.
Governing Law. This Amendment shall be governed by, and construed and interpreted in accordance with, the laws of the
State of New York, without regard to conflicts of law principles that would require the application of laws of another
jurisdiction.
SECTION 10.
Financing Document. This Amendment shall be deemed to be a Financing Document for all purposes.
SECTION 11.
Severability. Wherever possible, each provision of this Amendment shall be interpreted in such a manner as to be effective
and valid under applicable law, but if any provision of this Amendment shall be prohibited by or invalid under applicable
law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of
such provision or the remaining provisions of this Amendment.
SECTION 12. Counterparts. This Amendment may be executed by one or more of the parties hereto on any number of separate
counterparts, each of which shall be deemed an original and all of which, taken together, shall be deemed to constitute one
and the same instrument. Delivery of an executed counterpart of this Amendment by facsimile or other electronic
transmission shall be as effective as delivery of a manually executed counterpart hereof.
SECTION 13. Lender Direction. Each of the undersigned Lenders hereby directs each of the Administrative Agent and the Collateral
Agent to execute and deliver this Amendment and to perform its respective obligations hereunder. The undersigned Lenders
agree and direct that no other document (including without limitation any opinion) is required in connection with this
Amendment.
[Signature Pages Follow]
5
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their respective officers as of the
day and year first written above.
PACIFIC ETHANOL HOLDING CO. LLC, as a Borrower and as Borrower’s Agent
By: /s/ BRYON T. MCGREGOR
Name: Bryon T. McGregor
Title: Chief Financial Officer
PACIFIC ETHANOL MADERA LLC, as a Borrower
By: /s/ BRYON T. MCGREGOR
Name: Bryon T. McGregor
Title: Chief Financial Officer
PACIFIC ETHANOL COLUMBIA, LLC, as a Borrower
By: /s/ BRYON T. MCGREGOR
Name: Bryon T. McGregor
Title: Chief Financial Officer
PACIFIC ETHANOL STOCKTON LLC, as a Borrower
By: /s/ BRYON T. MCGREGOR
Name: Bryon T. McGregor
Title: Chief Financial Officer
PACIFIC ETHANOL MAGIC VALLEY, LLC, as a Borrower
By: /s/ BRYON T. MCGREGOR
Name: Bryon T. McGregor
Title: Chief Financial Officer
PE OP CO., as Pledgor
By: /s/ BRYON T. MCGREGOR
Name: Bryon T. McGregor
Title: Chief Financial Officer
WELLS FARGO BANK, N.A., as Administrative Agent and Collateral Agent
By: /s/ MICHAEL ROTH
Name: Michael Roth
Title: V.P.
Signature Page to Amendment to Second Amended and Restated Credit Agreement
The undersigned Lender acknowledges and agrees that this signature page shall be fully valid and binding upon such Lender upon its
execution and delivery by such Lender to the Administrative Agent and may not thereafter be revoked, terminated or cancelled by such
Lender.
Candlewood Special Situations Master Fund, Ltd., as Lender
By: /s/ DAVID KOENIG
Name: David Koenig
Title: PM & Managing Partner of CIG, the Investment Advisor
Signature Page to Amendment to Second Amended and Restated Credit Agreement
The undersigned Lender acknowledges and agrees that this signature page shall be fully valid and binding upon such Lender upon its
execution and delivery by such Lender to the Administrative Agent and may not thereafter be revoked, terminated or cancelled by such
Lender.
Candlewood Financial Opportunities Master Fund, Ltd., as Lender
By: /s/ DAVID KOENIG
Name: David Koenig
Title: PM & Managing Partner of CIG, the Investment Advisor
Signature Page to Amendment to Second Amended and Restated Credit Agreement
The undersigned Lender acknowledges and agrees that this signature page shall be fully valid and binding upon such Lender upon its
execution and delivery by such Lender to the Administrative Agent and may not thereafter be revoked, terminated or cancelled by such
Lender.
Candlewood Financial Opportunities Fund, LLC, as Lender
By: /s/ DAVID KOENIG
Name: David Koenig
Title: PM & Managing Partner of CIG, the Investment Advisor
Signature Page to Amendment to Second Amended and Restated Credit Agreement
The undersigned Lender acknowledges and agrees that this signature page shall be fully valid and binding upon such Lender upon its
execution and delivery by such Lender to the Administrative Agent and may not thereafter be revoked, terminated or cancelled by such
Lender.
CWD Master Fund, Ltd., as Lender
By: /s/ DAVID KOENIG
Name: David Koenig
Title: PM & Managing Partner of CIG, the Investment Advisor
Signature Page to Amendment to Second Amended and Restated Credit Agreement
The undersigned Lender acknowledges and agrees that this signature page shall be fully valid and binding upon such Lender upon its
execution and delivery by such Lender to the Administrative Agent and may not thereafter be revoked, terminated or cancelled by such
Lender.
Flagler Master Fund SPC Ltd. for and on behalf of Segregated Portfolio A, as Lender
By: /s/ DAVID KOENIG
Name: David Koenig
Title: PM & Managing Partner of CIG, the Investment Advisor
Signature Page to Amendment to Second Amended and Restated Credit Agreement
The undersigned Lender acknowledges and agrees that this signature page shall be fully valid and binding upon such Lender upon its
execution and delivery by such Lender to the Administrative Agent and may not thereafter be revoked, terminated or cancelled by such
Lender.
Flagler Master Fund SPC Ltd. for and on behalf of Segregated Portfolio B, as Lender
By: /s/ DAVID KOENIG
Name: David Koenig
Title: PM & Managing Partner of CIG, the Investment Advisor
Signature Page to Amendment to Second Amended and Restated Credit Agreement
The undersigned Lender acknowledges and agrees that this signature page shall be fully valid and binding upon such Lender upon its
execution and delivery by such Lender to the Administrative Agent and may not thereafter be revoked, terminated or cancelled by such
Lender.
Credit Suisse Loan Funding LLC, as Lender
By: /s/ ROBERT HEALEY
Name: Robert Healey
Title: Authorized Signatory
Signature Page to Amendment to Second Amended and Restated Credit Agreement
Exhibit 10.31
FIFTH AMENDMENT TO SECOND AMENDED AND RESTATED
CREDIT AGREEMENT
This FIFTH AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT (this “ Amendment”), dated
as of February 26, 2016 (the “Effective Date”), is entered into by and among PACIFIC ETHANOL HOLDING CO. LLC, a Delaware
limited liability company (“Pacific Holding”), PACIFIC ETHANOL MADERA LLC, a Delaware limited liability company (“ Madera”),
PACIFIC ETHANOL COLUMBIA, LLC, a Delaware limited liability company (“Boardman”), PACIFIC ETHANOL STOCKTON LLC,
a Delaware limited liability company (“Stockton”), and PACIFIC ETHANOL MAGIC VALLEY, LLC, a Delaware limited liability
company (“Burley” and, together with Pacific Holding, Madera, Boardman and Stockton, the “Borrowers”), Pacific Holding, as Borrowers’
Agent, PE OP CO., a Delaware corporation (f/k/a New PE Holdco LLC), as Pledgor (the “Pledgor” and together with Borrowers and Pacific
Holding as Borrower’s Agent, the “Borrower Parties”), each of the Lenders, WELLS FARGO BANK, N.A., as administrative agent for the
Lenders (“Administrative Agent”), and WELLS FARGO BANK, N.A., as collateral agent for the Senior Secured Parties (“ Collateral
Agent”). Capitalized terms used but not otherwise defined herein shall have the meaning ascribed to such terms in the Credit Agreement (as
hereinafter defined).
RECITALS
WHEREAS, the Borrower Parties, the Lenders party thereto, Administrative Agent, Collateral Agent, and Accounts Bank, entered
into that certain Second Amended and Restated Credit Agreement dated as of October 29, 2012 (as amended to date, the “ Credit
Agreement”);
WHEREAS, pursuant to the Credit Agreement, three separate commitments were extended to the Borrowers, a Tranche A-1 Term
Loan, a Tranche A-2 Term Loan and a Revolving Loan, all as further described in the Credit Agreement, including Sections 2.01 through
2.03 thereof;
WHEREAS, the Revolving Loan Commitment has been terminated and each of the Revolving Lenders have ceased being
Lenders under the Credit Agreement;
WHEREAS, Credit Suisse Loan Funding LLC (“Credit Suisse”) and Pacific Ethanol, Inc. constitute 100% of the Tranche A-1
Lenders;
WHEREAS, Pacific Ethanol, Inc. constitutes the sole Tranche A-2 Lender;
WHEREAS, the Borrowers desire to prepay 100% of the Tranche A-1 Term Loans and other Obligations held by Credit Suisse
(the “Loan Prepayment”), and Credit Suisse has agreed to waive any Make-Whole Amount due and payable in connection with the Loan
Prepayment; and
WHEREAS, following the Loan Prepayment, Pacific Ethanol, Inc. shall constitute the sole Lender under the Credit Agreement
and desires to amend and modify the Credit Agreement as set forth herein;
NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy of which is hereby acknowledged and
confirmed, the parties hereto hereby agree as follows:
SECTION 1.
Consent and Waiver Regarding Prepayment. As of the date hereof, the following amounts are due (collectively, the
“Prepayment Amount”): (A) the principal amount of Tranche A-1 Term Loans held by Credit Suisse in an amount equal
to$17,003,037.06; (B) the accrued interest in respect thereof through February 23, 2016 in an amount equal to $156,790.30,
with interest accruing after February 23, 2016 at the per diem rate of $6,271.61 until payment in full is received; and (C) the
accrued but unpaid fees and costs of Administrative Agent and Collateral Agent, including its attorneys fees and costs, in an
amount equal to $52,757.16 (the “Agent Fees”). Notwithstanding any provision of the Credit Agreement, (i) each of the
Lenders hereby consents to the Borrowers’ effecting the Loan Prepayment by (x) paying to Credit Suisse on the date hereof
an amount equal to the Prepayment Amount (less the Agent Fees) without any requirement that such prepayment be made in
accordance with any waterfall provision in the Credit Agreement or any portion thereof otherwise be distributed to any other
Lender, and (y) paying to the Administrative Agent on the date hereof an amount equal to the Agent Fees, and (ii) Credit
Suisse hereby waives any and all prepayment premiums or other amounts (other than the Prepayment Amount) due and
payable to Credit Suisse (including, without limitation, the Make-Whole Amount provided by Section 3.15 of the Credit
Agreement) in connection with the Loan Prepayment. Each of the Administrative Agent and the Lenders waives any notice
requirement in connection with such Loan Prepayment. In addition to the Prepayment Amount, Borrowers will be obligated
to, and shall promptly, pay Administrative Agent’s and Collateral Agent’s fees and reasonable, out-of-pocket fees and costs
related to this Amendment and the consummation thereof (including the fees and costs of the Administrative Agent’s and
Collateral Agent’s counsel).
1
SECTION 2.
Amendments. The Credit Agreement is hereby amended as follows:
2.1
Section 10.06(b) of the Credit Agreement is hereby amended and restated to read as follows:
“(b) Upon any notice of resignation by any Agent or upon the removal of any Agent by the proper Persons pursuant to
Section 10.06(a), the Required Lenders of the Revolving Loan Class and the Required Lenders of the Tranche A-1 Term
Loan Class shall appoint a successor Collateral Agent or Administrative Agent, as applicable, hereunder and under each
other Financing Document, or the Required Lenders of the Revolving Loan Class, the Required Lenders of the Tranche A-
1 Term Loan Class and the Required Senior Lenders shall appoint a successor Accounts Bank.”
2.2
Section 10.06(c) of the Credit Agreement is hereby amended and restated to read as follows:
“(c) If no successor Agent has been appointed by the proper Persons under Section 10.06(b) within thirty (30) days after the
date such notice of resignation was given by such Agent or the proper Persons elected to remove such Agent under Section
10.06(a), and provided that no Default or Event of Default has occurred and is continuing, the Borrowers may appoint a
replacement Agent within the immediately succeeding fifteen (15) days.”
SECTION 3.
Payment of Costs and Fees. Each Borrower (i) reaffirms its obligations under Section 11.07 of the Credit Agreement and (ii)
without limiting the provisions set forth in Section 11.07 of the Credit Agreement, acknowledges, consents and agrees that
it shall promptly pay, upon receipt of invoices therefor, to the Administrative Agent, the Collateral Agent and each Lender
all reasonable out-of-pocket costs, fees, expenses and charges of every kind in connection with the preparation, negotiation,
execution and delivery of this Amendment incurred by or on behalf of such Persons, including, without limitation, the
reasonable fees and disbursements of Kelley Drye & Warren LLP, counsel to the Administrative Agent and the Collateral
Agent.
2
SECTION 4.
Acknowledgements.
4.1.
4.2.
4.3.
Reaffirmation of Obligations. Each Borrower Party hereby (a) reaffirms, acknowledges, confirms and agrees to its
respective guarantees, pledges and grants of security interests and other commitments and Obligations under the
Financing Documents and (b) confirms and agrees that the Financing Documents and all guarantees, pledges and
grants of security interests and other commitments and Obligations thereunder shall continue to be in full force and
effect following the effectiveness of this Amendment. All Obligations under the Credit Agreement and the other
Financing Documents owing by the Borrower Parties to the Administrative Agent, the Collateral Agent, the
Accounts Bank and each Lender, as the case may be, are unconditionally owing by the Borrower Parties to the
Administrative Agent, the Collateral Agent, the Accounts Bank and each Lender, as the case may be, without
offset, defense or counterclaim of any kind, nature or description whatsoever.
Acknowledgement of Security Interests. Each Borrower Party hereby acknowledges, confirms and agrees that the
Collateral Agent, for itself and the benefit of Senior Secured Parties, has and shall continue to have valid,
enforceable and perfected first-priority liens (subject only to Permitted Liens) upon and security interests in the
Collateral granted to the Collateral Agent, for itself and the benefit of Senior Secured Parties, pursuant to the
Financing Documents.
Binding Effect of Documents. Each Borrower Party hereby acknowledges, confirms and agrees that: (i) each of the
Financing Documents to which it is a party has been duly executed and delivered to the Administrative Agent, the
Collateral Agent, the Accounts Bank and the Lenders party thereto by it, and each is in full force and effect as of
the Effective Date, (ii) the agreements and obligations of such Borrower Party contained in the Credit Agreement,
in each of the other Financing Documents and in this Amendment constitute the legal, valid and binding obligations
of such Borrower Party, enforceable against such Borrower Party in accordance with their respective terms, and
such Borrower Party has no valid defense to the enforcement of the obligations under the Credit Agreement or the
other Financing Documents, except as enforceability may be limited by bankruptcy, insolvency, moratorium,
reorganization or other similar laws limiting creditors rights generally and except as enforceability may be limited
by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or
at law) and (iii) the Administrative Agent, the Collateral Agent, the Accounts Bank and each Lender are and shall
be entitled to the rights, remedies and benefits provided for in the Financing Documents and under applicable law
or at equity.
SECTION 5.
Representations and Warranties of Borrower Parties. Each of the Borrower Parties hereby represents and warrants in favor
of the Administrative Agent, the Collateral Agent, the Accounts Bank and each Lender as follows:
5.1.
The execution, delivery and performance by such Borrower Party of this Amendment are within such Borrower
Party’s powers and have been duly authorized by all necessary action on the part of such Borrower Party.
3
5.2
5.3.
5.4.
5.5.
5.6.
This Amendment has been duly executed and delivered by such Borrower Party and this Amendment constitutes a
legal, valid and binding obligation of such Borrower Party enforceable in accordance with its terms except as
enforceability may be limited by bankruptcy, insolvency, moratorium, reorganization or other similar laws limiting
creditors rights generally and except as enforceability may be limited by general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law).
The execution, delivery or performance of this Amendment by such Borrower Party (i) does not require any
consent or approval of, registration of filing with, or any other action by, any Person (including, without limitation,
any Governmental Authority) except such as have been obtained or made and are in full force and effect, (ii) will
not violate the organizational or governing documents of any Borrower Party and (iii) will not violate any
applicable Law or any Contractual Obligation applicable to or binding upon such Borrower Party or any of their
respective properties or assets.
No event has occurred or is continuing, that would constitute a Default or an Event of Default under the Credit
Agreement or any other Financing Document.
As of the Effective Date no litigation by, investigation known to such Borrower Party by, or proceeding of, any
Governmental Authority is pending or, to the knowledge of such Borrower Party, has been threatened against such
Borrower Party which (i) challenges such Borrower Party’s right, power, or competence to enter into this
Amendment or perform any of its obligations under this Amendment or the validity or enforceability of this
Amendment or any action taken under this Amendment or (ii) is reasonably likely, if adversely decided, to have a
Material Adverse Effect.
After giving effect to this Amendment, the representations and warranties of such Borrower Party contained in the
Credit Agreement and the other Financing Documents are true and correct in all material respects (provided, that if
any representation or warranty is by its terms qualified by concepts of materiality, such representation shall be true
and correct in all respects) on and as of the Effective Date with the same effect as if such representations and
warranties had been made on and as of such date, except that any such representation or warranty which is
expressly made only as of a specified date need be true only as of such date.
SECTION 6.
Conditions to Effectiveness of this Amendment. This Amendment shall be effective only (i) if and when signed by, and
when counterparts hereof shall have been delivered to the Administrative Agent (by hand delivery, mail, telecopy or other
electronic transmission) by, the Borrower Parties and the Lenders, and (ii) when the Borrower Parties shall have paid (A)
an amount equal to the Prepayment Amount (less the Agent Fees) to Credit Suisse, and (B) an amount equal to the Agent
Fees to the Administrative Agent.
4
SECTION 7.
Effect on the Financing Documents.
7.1.
7.2.
7.3.
Except as set forth in this Amendment, the Credit Agreement and each of the other Financing Documents shall be
and remain unchanged and in full force and effect in accordance with their respective terms, are hereby ratified and
confirmed in all respects and the Administrative Agent, the Collateral Agent, the Accounts Bank and each Lender
expressly reserves the right to require strict compliance with the terms of the Credit Agreement (and, following the
Effective Date, the Credit Agreement, as amended by this Amendment) and the other Financing Documents. The
execution, delivery, and performance of this Amendment shall not operate as a modification or waiver of any right,
power, or remedy of any Agent or any Lender under the Credit Agreement (and, following the Effective Date, , the
Credit Agreement, as amended by this Amendment) or any other Financing Document and no such action shall be
construed as (i) a waiver or forbearance of any of the Administrative Agent’s, the Collateral Agent’s, the Accounts
Bank’s or the Lenders’ rights, remedies, and powers against the Borrowers, any other Borrower Party or the
Collateral or (ii) a waiver of any Default or Event of Default. Notwithstanding any provision of this Amendment,
nothing herein shall adversely affect the rights, remedies, duties, liabilities, obligations and/or responsibilities of
any Lender that has not consented to the terms hereof to the extent such consent may be required pursuant to the
Credit Agreement, including Section 11.01 thereof.
Upon and after the effectiveness of this Amendment, each reference in the Credit Agreement to “this Agreement,”
“hereunder,” “herein,” “hereof” or words of like import referring to the Credit Agreement, and each reference in
the other Financing Documents to “the Credit Agreement,” “thereunder,” “therein,” “thereof” or words of like
import referring to the Credit Agreement, shall mean and be a reference to the Credit Agreement as modified by
this Amendment.
To the extent that any terms and conditions in any of the Financing Documents shall contradict or be in conflict
with any terms or conditions of the Credit Agreement, after giving effect to this Amendment, such terms and
conditions are hereby deemed modified or amended accordingly to reflect the terms and conditions of the Credit
Agreement as modified hereby (except to the extent that such contradiction or conflict is expressly permitted by this
Amendment).
SECTION 8.
Ratification. Except as expressly modified hereby or waived herein, the Credit Agreement and the other Financing
Documents shall be and remain unchanged and in full force and effect in accordance with their respective terms, are hereby
ratified and confirmed in all respects.
SECTION 9.
Governing Law. This Amendment shall be governed by, and construed and interpreted in accordance with, the laws of the
State of New York, without regard to conflicts of law principles that would require the application of laws of another
jurisdiction.
SECTION 10.
Financing Document. This Amendment shall be deemed to be a Financing Document for all purposes.
SECTION 11.
Severability. Wherever possible, each provision of this Amendment shall be interpreted in such a manner as to be effective
and valid under applicable law, but if any provision of this Amendment shall be prohibited by or invalid under applicable
law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of
such provision or the remaining provisions of this Amendment.
SECTION 12. Counterparts. This Amendment may be executed by one or more of the parties hereto on any number of separate
counterparts, each of which shall be deemed an original and all of which, taken together, shall be deemed to constitute one
and the same instrument. Delivery of an executed counterpart of this Amendment by facsimile or other electronic
transmission shall be as effective as delivery of a manually executed counterpart hereof.
SECTION 13. Lender Direction. Each of the undersigned Lenders hereby directs each of the Administrative Agent and the Collateral
Agent to execute and deliver this Amendment and to perform its respective obligations hereunder. The undersigned Lenders
agree and direct that no other document (including without limitation any opinion) is required in connection with this
Amendment.
[Signature Pages Follow]
5
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their respective officers as of the
day and year first written above.
PACIFIC ETHANOL HOLDING CO. LLC, as a Borrower and as Borrowers’ Agent
By: /s/ BRYON T. MCGREGOR
Name: Bryon T. McGregor
Title: Chief Financial Officer
PACIFIC ETHANOL MADERA LLC, as a Borrower
By: /s/ BRYON T. MCGREGOR
Name: Bryon T. McGregor
Title: Chief Financial Officer
PACIFIC ETHANOL COLUMBIA, LLC, as a Borrower
By: /s/ BRYON T. MCGREGOR
Name: Bryon T. McGregor
Title: Chief Financial Officer
PACIFIC ETHANOL STOCKTON LLC, as a Borrower
By: /s/ BRYON T. MCGREGOR
Name: Bryon T. McGregor
Title: Chief Financial Officer
PACIFIC ETHANOL MAGIC VALLEY, LLC, as a Borrower
By: /s/ BRYON T. MCGREGOR
Name: Bryon T. McGregor
Title: Chief Financial Officer
PE OP CO., as Pledgor
By: /s/ BRYON T. MCGREGOR
Name: Bryon T. McGregor
Title: Chief Financial Officer
WELLS FARGO BANK, N.A., as Administrative Agent and Collateral Agent
By: /s/ MICHAEL ROTH
Name: Michael Roth
Title: V.P.
Signature Page to Amendment to Second Amended and Restated Credit Agreement
The undersigned Lender acknowledges and agrees that this signature page shall be fully valid and binding upon such Lender upon its
execution and delivery by such Lender to the Administrative Agent and may not thereafter be revoked, terminated or cancelled by such
Lender.
Credit Suisse Loan Funding LLC, as Lender
By: /s/ ROBERT HEALEY
Name: Robert Healey
Title: Authorized Signatory
By: /s/ MICHAEL WOTANOWSKI
Name: Michael Wotanowski
Title: Authorized Signatory
Signature Page to Amendment to Second Amended and Restated Credit Agreement
The undersigned Lender acknowledges and agrees that this signature page shall be fully valid and binding upon such Lender upon its
execution and delivery by such Lender to the Administrative Agent and may not thereafter be revoked, terminated or cancelled by such
Lender.
Pacific Ethanol, Inc., as Lender
By: /s/ BRYON T. MCGREGOR
Name: Bryon T. McGregor
Title: Chief Financial Officer
Signature Page to Amendment to Second Amended and Restated Credit Agreement
EXHIBIT 21.1
Subsidiary Name
Kinergy Marketing LLC
Pacific Ag. Products, LLC
Pacific Ethanol Development, LLC
PE Op Co.
Pacific Ethanol Holding Co. LLC
Pacific Ethanol Columbia, LLC
Pacific Ethanol Madera LLC
Pacific Ethanol Magic Valley, LLC
Pacific Ethanol Stockton LLC
Pacific Ethanol Central, LLC
Pacific Ethanol Aurora East, LLC
Pacific Ethanol Aurora West, LLC
Pacific Ethanol Canton, LLC
Pacific Ethanol Pekin, Inc.
SUBSIDIARIES OF THE REGISTRANT
Name(s) Under Which
Subsidiary Does Business*
State or Jurisdiction of
Incorporation or Organization
−
PAP
−
−
−
−
−
−
−
−
−
−
−
−
Oregon
California
Delaware
Delaware
Delaware
Delaware
Delaware
Delaware
Delaware
Delaware
Delaware
Delaware
Delaware
Delaware
*
If different from the name of the subsidiary.
EXHIBIT 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in Registration Statement (Nos. 333-123538, 333-137663, 333-169002, 333-176540, 333-
185884, 333-189478 and 333-196876) on Form S-8 and (Nos. 333-178685, 333-180731 and 333-195364) on Form S-3 and (No. 333-
201879) on Form S-4, of Pacific Ethanol, Inc. of our reports dated March 15, 2016 relating to our audits of the consolidated financial
statements and internal control over financial reporting of Pacific Ethanol, Inc., which appear in this Annual Report on Form 10-K of
Pacific Ethanol, Inc. for the year ended December 31, 2015.
/s/ RSM US LLP
Sioux Falls, South Dakota
March 15, 2016
EXHIBIT 23.2
Consent of Independent Registered Public Accounting Firm
We consent to the incorporation by reference in Registration Statement (Nos. 333-137663, 333-123538, 333-169002, 333-176540, 333-
185884, 333-189478 and 333-196876) on Form S-8 and (Nos. 333-178685, 333-180731 and 333-195364) on Form S-3 and (No. 333-
201879) on Form S-4, of Pacific Ethanol, Inc. of our report dated March 16, 2015, relating to our audits of the consolidated financial
statements, and the financial statement schedules, as of December 31, 2014 and for the years ended December 31, 2014 and 2013, which
appears in this Annual Report on Form 10-K of Pacific Ethanol, Inc. for the year ended December 31, 2015.
/s/ HEIN & ASSOCIATES LLP
Irvine, California
March 15, 2016
EXHIBIT 31.1
CERTIFICATION
Pacific Ethanol, Inc. (the “registrant”) completed its acquisition of Aventine Renewable Energy Holdings, Inc. (“Aventine”) on July
1, 2015. As permitted pursuant to the Securities and Exchange Commission’s guidance, management excluded Aventine’s business from its
assessment of the effectiveness of the registrant’s internal control over financial reporting as of December 31, 2015. Aventine represented
approximately 53% of the registrant’s total assets as of December 31, 2015 and Aventine’s business generated approximately 25% of the
registrant’s net sales for the year ended December 31, 2015.
I, Neil M. Koehler, certify that:
1. I have reviewed this Annual Report on Form 10-K of Pacific Ethanol, Inc.;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact
necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect
to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all
material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this
report;
4. The registrant’s other certifying officers and I are responsible for establishing and maintaining disclosure controls and procedures
(as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules
13a-15(f) and 15d-15(f)) for the registrant and have:
(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under
our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us
by others within those entities, particularly during the period in which this report is being prepared;
(b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be
designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of
financial statements for external purposes in accordance with generally accepted accounting principles;
(c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our
conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on
such evaluation; and
(d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the
registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is
reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
5. The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over
financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the
equivalent functions):
(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting
which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the
registrant’s internal control over financial reporting.
Date: March 15, 2016
/s/ NEIL M. KOEHLER
Neil M. Koehler
President and Chief Executive Officer (Principal Executive Officer)
EXHIBIT 31.2
CERTIFICATION
Pacific Ethanol, Inc. (the “registrant”) completed its acquisition of Aventine Renewable Energy Holdings, Inc. (“Aventine”) on July
1, 2015. As permitted pursuant to the Securities and Exchange Commission’s guidance, management excluded Aventine’s business from its
assessment of the effectiveness of the registrant’s internal control over financial reporting as of December 31, 2015. Aventine represented
approximately 53% of the registrant’s total assets as of December 31, 2015 and Aventine’s business generated approximately 25% of the
registrant’s net sales for the year ended December 31, 2015.
I, Bryon T. McGregor, certify that:
1. I have reviewed this Annual Report on Form 10-K of Pacific Ethanol, Inc.;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact
necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect
to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all
material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this
report;
4. The registrant’s other certifying officers and I are responsible for establishing and maintaining disclosure controls and procedures
(as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules
13a-15(f) and 15d-15(f)) for the registrant and have:
(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under
our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us
by others within those entities, particularly during the period in which this report is being prepared;
(b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be
designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of
financial statements for external purposes in accordance with generally accepted accounting principles;
(c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our
conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on
such evaluation; and
(d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the
registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is
reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
5. The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over
financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the
equivalent functions):
(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting
which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the
registrant’s internal control over financial reporting.
Date: March 15, 2016
/s/ BRYON T. MCGREGOR
Bryon T. McGregor
Chief Financial Officer (Principal Financial and Accounting Officer)
EXHIBIT 32.1
CERTIFICATIONS 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
In connection with the Annual Report on Form 10-K of Pacific Ethanol, Inc. (the “Company”) for the year ended December 31, 2015
(the “Report”), the undersigned hereby certify in their capacities as Chief Executive Officer and Chief Financial Officer of the Company,
respectively, pursuant to 18 U.S.C. section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that:
1. the Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended;
and
2. the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of
the Company.
Date: March 15, 2016
Date: March 15, 2016
By:
By:
/s/ NEIL M. KOEHLER
Neil M. Koehler
Chief Executive Officer
(Principal Executive Officer)
/s/ BRYON T. MCGREGOR
Bryon T. McGregor
Chief Financial Officer (Principal Financial and Accounting
Officer)
A signed original of this written statement required by Section 906, or other document authenticating, acknowledging, or otherwise
adopting the signatures that appear in typed form within the electronic version of this written statement required by Section 906, has been
provided to the Company and will be retained by the Company and furnished to the Securities and Exchange Commission or its staff upon
request.