EXHIBIT 3.1
State of Delaware
Secretary of State
Division of Corporations
Delivered 06:27 PM 02/28/2005
Filed 06:27 PM 02/28/2005
SRV 050169353 - 3877538 FILE
CERTIFICATE OF INCORPORATION
OF
PACIFIC ETHANOL, INC.,
A DELAWARE CORPORATION
FIRST: The name of the corporation is:
PACIFIC ETHANOL, INC.
SECOND: The address of the corporation's registered office in the State
of Delaware is Corporation Trust Center, 1209 Orange Street, in the City of
Wilmington, County of New Castle, State of Delaware. The name of the registered
agent of the corporation at such location is The Corporation Trust Company.
THIRD: The nature of the business or purposes to be conducted or
promoted by the corporation is to engage in any lawful act or activity for which
corporations may be organized under the General Corporation Law of the State of
Delaware.
FOURTH: The corporation is authorized to issue one class of capital
stock to be designated "Common Stock" and another class of capital stock to be
designated "Preferred Stock." The total number of shares of Common Stock that
the corporation is authorized to issue is one hundred million (100,000,000),
with a par value of $.001 per share. The total number of shares of Preferred
Stock that the corporation is authorized to issue is ten million
(10,000,000)with a par value of $.001 per share.
Except as otherwise provided by law, the shares of stock of
the corporation, regardless of class, may be issued by the corporation from time
to time in such amounts, for such consideration and for such corporate purposes
as the board of directors may from time to time determine. A description of the
different classes and series of the corporation's capital stock and a statement
of the designations and the relative rights, preferences and limitations of the
shares of each class and series of capital stock are as follows:
COMMON STOCK. Except as otherwise provided by the General
Corporation Law of the State of Delaware or in this Article FOURTH (or in any
certificate of designation establishing a series of Preferred Stock), the
holders of Common Stock shall exclusively possess all voting power of the
corporation. Each share of Common Stock shall be equal in all respects to every
other share of Common Stock. Each holder of record of issued and outstanding
Common Stock shall be entitled to one (1) vote on all matters for each share so
held. Subject to the rights and preferences, if any, of the holders of Preferred
Stock, each issued and outstanding share of Common Stock shall entitle the
record holder thereof to receive dividends and distributions out of funds
legally available therefor, when, as and if declared by the board of directors,
in such amounts and at such times, if any, as the board of directors shall
determine, ratably in proportion to the number of shares of Common Stock held by
each such record holder. Upon any voluntary or involuntary liquidation,
dissolution or winding up of the corporation, after there shall have been paid
to or set aside for the holders of any class of capital stock having preference
over the Common Stock in such circumstances the full preferential amounts to
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which they are respectively entitled, the holders of the Common Stock, and of
any class or series of capital stock entitled to participate in whole or in part
therewith as to the distribution of assets, shall be entitled, after payment or
provision for the payment of all debts and liabilities of the corporation, to
receive the remaining assets of the corporation available for distribution, in
cash or in kind, ratably in proportion to the number of shares of Common Stock
held by each such holder.
PREFERRED STOCK. The board of directors is authorized by
resolution or resolutions, from time to time adopted, to provide for the
issuance of Preferred Stock in one or more series and to fix and state the
voting powers, designations, preferences and relative participating, optional or
other special rights of the shares of each series and the qualifications,
limitations and restrictions thereof, including, but not limited to,
determination of one or more of the following:
(i) the distinctive designations of each such series
and the number of shares which shall constitute such series, which number may be
increased (except where otherwise provided by the board of directors in creating
such series) or decreased (but not below the number of shares thereof then
outstanding) from time to time by the board of directors;
(ii) the annual rate or amount of dividends payable
on shares of such series, whether such dividends shall be cumulative or
non-cumulative, the conditions upon which and the dates when such dividends
shall be payable, the date from which dividends on cumulative series shall
accrue and be cumulative on all shares of such series issued prior to the
payment date for the first dividend of such series, the relative rights of
priority, if any, of payment of dividends on the shares of that series, and the
participating or other special rights, if any, with respect to such dividends;
(iii) whether such series will have any voting rights
in addition to those prescribed by law and, if so, the terms and conditions of
the exercise of such voting rights;
(iv) whether the shares of such series will be
redeemable or callable and, if so, the prices at which, and the terms and
conditions on which, such shares may be redeemed or called, which prices may
vary under different conditions and at different redemption or call dates;
(v) the amount or amounts payable upon the shares of
such series in the event of voluntary or involuntary liquidation, dissolution or
winding up of the corporation, and the relative rights of priority, if any, of
payment of shares of such series;
(vi) whether the shares of such series shall be
entitled to the benefit of a sinking or retirement fund to be applied to the
purchase or redemption of such shares, and if so entitled, the amount of such
fund and the manner of its application, including the price or prices at which
such shares may be redeemed or purchased through the application of such fund;
(vii) whether the shares of such series shall be
convertible into, or exchangeable for, shares of any other class or classes or
of any other series of the same or any other class or classes of capital stock
of the corporation, and if so convertible or exchangeable, the conversion price
or prices, or the rate or rates of exchange, and the adjustments thereof, if
any, at which such conversion or exchange may be made, and any other terms of
such conversion or exchange;
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(viii) whether the shares of such series that are
redeemed or converted shall have the status of authorized but unissued shares of
Preferred Stock and whether such shares may be reissued as shares of the same or
any other series of stock;
(ix) the conditions and restrictions, if any, on the
payment of dividends or on the making of other distributions on, or the
purchase, redemption or other acquisition by the corporation, or any subsidiary
thereof, of, the Common Stock or any other class (or other series of the same
class) ranking junior to the shares of such series as to dividends or upon
liquidation, dissolution or winding up of the corporation; and
(x) the conditions and restrictions, if any, on the
creation of indebtedness of the corporation, or any subsidiary thereof, or on
the issue of any additional stock ranking on parity with or prior to the shares
of such series as to dividends or upon liquidation, dissolution or winding up of
the corporation.
All shares within each series of Preferred Stock shall be
alike in every particular, except with respect to the dates from which
dividends, if any, shall commence to accrue.
FIFTH: The number of directors which constitute the whole Board of
Directors shall be fixed exclusively by one or more resolutions adopted from
time to time by the Board of Directors in accordance with the Bylaws of the
corporation. Except as otherwise required by the General Corporation Law of the
State of Delaware, (i) newly created directorships resulting from any increase
in the number of directors and any vacancies on the Board of Directors resulting
from death, resignation, disqualification, removal or other cause shall be
filled by the affirmative vote of a majority of the remaining directors then in
office, even though less than a quorum of the Board of Directors, or by a sole
remaining director; (ii) any director elected in accordance with the preceding
clause (i) shall hold office for the remainder of the full term of the class of
directors in which the new directorship was created or the vacancy occurred and
until such director's successor shall have been elected and qualified; and (iii)
no decreased in the number of directors constituting the Board of Directors
shall shorten the term of any incumbent director. The manner by which a director
of the corporation may be removed from office shall be as provided in the Bylaws
of the corporation. Advance notice of new business and stockholder nominations
for the election of directors shall be given in the manner and to the extent
provided in the Bylaws of the corporation. Elections of directors need not be by
written ballot unless the Bylaws of the corporation shall so provide.
SIXTH: The corporation may, to the fullest extent to which it is
empowered to do so and under the circumstances permitted by the General
Corporation Law of the State of Delaware or any other applicable laws, as they
may from time to time be in effect, indemnify any person who was made or is
threatened to be made party to any threatened, pending or completed action, suit
or proceeding, whether civil, criminal, administrative or investigative, by
reason of the fact that he is or was a director or officer of the corporation,
or is or was serving at the specific request of the corporation as a director or
officer of another corporation, partnership, joint venture, trust or other
enterprise (including, without limitation, any employee benefit plan), against
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all expenses (including attorneys' fees), judgments, fines and amounts incurred
by him or her in connection with such action, suit or proceeding, and may take
such steps as may be deemed appropriate by the board of directors, including
purchasing and maintain insurance, entering into contracts (including, without
limitation, contracts of indemnification between the corporation and its
directors and officers), creating a trust fund, granting security interests or
using other means (including, without limitation, a letter of credit) to ensure
the payment of such amounts as may be necessary to effect such indemnification.
SEVENTH: To the fullest extent permitted by the General Corporation Law
of the State of Delaware as the same exists or as it may hereafter by amended, a
director of the corporation shall not be personally liable to the corporation or
its stockholders for monetary damages for breach of fiduciary duty as a
director; provided, that in no event will the liability of any director of this
corporation be eliminated or otherwise limited (i) for any breach of the
director's duty of loyalty to the corporation or its stockholders; (ii) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law; (iii) under Section 174 of the General Corporation Law
of the State of Delaware; or (iv) for any transaction from which the director
derived any improper personal benefit. If the General Corporation Law of the
State of Delaware is amended to authorize corporate action further eliminating
or limiting the personal liability of directors, then the liability of a
director of the corporation shall be eliminated or limited to the fullest extent
permitted by the General Corporation Law of the State of Delaware, as so
amended.
Any repeal or modification of the foregoing paragraph, or the
adoption of any provision of this certificate of incorporation inconsistent with
the foregoing paragraph, shall not eliminate, reduce or otherwise adversely
affect any right or protection of a director of the corporation existing at the
time of such repeal or modification in respect of any matter occurring, or any
cause of action, suit or proceeding that, but for the foregoing paragraph, would
accrue or arise, prior to such repeal, modification or adoption of an
inconsistent provision.
EIGHTH: The corporation reserves the right to amend, alter, change or
repeal any provision contained in this Certificate of Incorporation, in the
manner now or hereafter prescribed by law, and all rights conferred upon the
stockholders herein are granted pursuant to this reservation.
NINTH: The corporation is to have perpetual existence.
TENTH: Meetings of the stockholders of the corporation may be held
within or without the State of Delaware, as the Bylaws may provide. The books of
the corporation may be kept (subject to any provision contained in the Bylaws)
outside the State of Delaware at such place or places as may be designated from
time to time by the Board of Directors or in the Bylaws of the corporation.
ELEVENTH: In furtherance and not in limitation of the powers conferred
by statute, the Board of Directors is expressly authorized to make, alter, amend
or repeal the Bylaws of the Corporation unless and to the extent the General
Corporation Law of the State of Delaware shall provide otherwise.
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TWELFTH: The name and address of the sole incorporator of the
corporation is:
Larry A. Cerutti
611 Anton Boulevard, 14th Floor
Costa Mesa, CA 92626
THIRTEENTH: The provisions of Section 203 of the General Corporation
Law of the State of Delaware shall be applicable to this corporation.
I, THE UNDERSIGNED, being the sole incorporator hereinbefore
named, for the purpose of forming a corporation pursuant to the General
Corporation Law of the State of Delaware, do make this certificate, hereby
declaring and certifying that this is my act and deed and the facts herein
stated are true, and accordingly have hereunto set my hand this 28th day of
February, 2005.
By: /S/ LARRY A. CERUTTI
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Larry A. Cerutti, Sole Incorporator
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