Item 1.01 Entry into a Material Definitive Agreement.
On
The Shares will be sold and issued pursuant to the Company's Registration
Statement on Form S-3 (File No. 333-238939), which was previously declared
effective by the
The Company or the Sales Agent, under certain circumstances and upon notice to the other, may suspend the offering of the Shares under the Sales Agreement. The offering of the Shares pursuant to the Sales Agreement will terminate upon the sale of all of the Shares subject to the Sales Agreement, or sooner if either the Company or the Sales Agent terminate the Sales Agreement.
The Company will pay the Sales Agent a commission of up to 3.0% of the gross
proceeds from any sale of the Shares sold pursuant to the Sales Agreement. In
addition, the Company has agreed to reimburse the Sales Agent for fees and
disbursements of its legal counsel in an amount not to exceed
The Company made certain customary representations, warranties and covenants in the Sales Agreement concerning the Company and its subsidiaries and the registration statement, prospectus, prospectus supplement and other documents and filings relating to the offering of the Shares. In addition, the Company has agreed to indemnify the Sales Agent against certain liabilities.
The foregoing description of the Sales Agreement is qualified in its entirety by reference to that agreement, a copy of which is filed as Exhibit 10.1 to this Current Report on Form 8-K and is incorporated herein by reference.
This Current Report on Form 8-K, including the exhibits filed herewith, shall not constitute an offer to sell or the solicitation of an offer to buy the securities discussed herein, nor shall there be any offer, solicitation or sale of the securities in any state in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of such state.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits. Number Description (#) 5.1 Opinion ofTroutman Pepper Hamilton Sanders LLP (*) 10.1 At Market Issuance Sales Agreement dated as ofAugust 13, 2020 by and betweenPacific Ethanol, Inc. andH.C. Wainwright & Co., LLC (*) 23.1 Consent ofTroutman Pepper Hamilton Sanders LLP (included in Exhibit 5.1) (*) Filed herewith.
(#) All of the agreements filed as exhibits to this report 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. 1
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