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EXHIBIT 10.5
VOTING AGREEMENT
THIS VOTING AGREEMENT (this "Agreement"), dated as of November
14,
2005, is by and among Pacific Ethanol,
Inc., a Delaware corporation (the
"Company"), Cascade Investment, L. L. C., a
Washington limited liability company
(the "Purchaser") and the persons listed on
SCHEDULE I hereto (each a
"Stockholder", and, collectively, the
"Stockholders").
WHEREAS, the Purchaser and the Company propose to enter into a
Purchase
Agreement of even date herewith (the
"Purchase Agreement") providing for the
purchase by the Purchaser of certain
cumulative redeemable convertible preferred
stock of the Company (the "Preferred
Shares") (the transactions contemplated by
the Purchase Agreement, including without
limitation the issuance of securities
thereunder, the "Transactions");
WHEREAS, as a condition to the execution and delivery of the
Purchase
Agreement, the Purchaser has requested that
the Stockholders enter into this
Agreement;
WHEREAS, the Stockholders believe that the execution, delivery
and
performance of the Purchase Agreement and
the consummation of the transactions
contemplated thereby is in the best
interests of the Company and its
stockholders; and
WHEREAS, each Stockholder is the record and beneficial owner, or
the
trustee of a trust whose beneficiaries are
the beneficial owners, of such number
of shares of Common Stock of the Company
set forth opposite such Stockholder's
name on SCHEDULE I hereto (such shares of
Common Stock, as such shares may be
adjusted by stock dividend, stock split,
recapitalization, combination or
exchange of shares, merger, consolidation,
reorganization or other change or
transaction, together with shares of Common
Stock that may be acquired after the
date hereof by such Stockholder, including
shares of Common Stock issued upon
the exercise of options or warrants to
purchase Common Stock (as the same may be
adjusted as aforesaid), being collectively
referred to herein as the "Shares").
NOW, THEREFORE, in consideration of the premises and the
representations, warranties and agreements
contained herein, the Stockholders
agree as follows:
1. REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS. Each
Stockholder
hereby, severally and not jointly,
represents and warrants as follows:
(a) AUTHORITY. The Stockholder has all requisite power and
authority to
execute and deliver this Agreement and to
consummate the transactions
contemplated hereby. The execution,
delivery and performance of this Agreement
and the consummation of the transactions
contemplated hereby have been duly
authorized by the Stockholder. This
Agreement has been duly executed and
delivered by the Stockholder and
constitutes a valid and binding obligation of
the Stockholder enforceable against the
Stockholder in accordance with its
terms. Except as set forth on SCHEDULE II
hereto, neither the execution,
delivery or performance of this Agreement
by the Stockholder nor the
consummation by the Stockholder of the
transactions contemplated hereby will (i)
require any filing with, or permit,
authorization, consent or approval of, any
federal, state, local or municipal foreign
or other government or subdivision,
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branch, department or agency thereof or any
governmental or quasi-governmental
authority of any nature, including any
court or other tribunal, (a "Governmental
Entity"), (ii) result in a violation or
breach of, or constitute (with or
without due notice or lapse of time or
both) a default under, or give rise to
any right of termination, amendment,
cancellation or acceleration under, or
result in the creation of any pledge,
claim, lien, option, charge, encumbrance
or security interest of any kind or nature
whatsoever (a "Lien") upon any of the
properties or assets of the Stockholder
under, any of the terms, conditions or
provisions of any note, bond, mortgage,
indenture, lease, license, permit,
concession, franchise, contract, agreement
or other instrument or obligation (a
"Contract") to which the Stockholder is a
party or by which the Stockholder or
any of the Stockholder's properties or
assets, including the Stockholder's
Shares, may be bound or (iii) violate any
judgment, order, writ, preliminary or
permanent injunction or decree (an "Order")
or any statute, law, ordinance, rule
or regulation of any Governmental Entity (a
"Law") applicable to the Stockholder
or any of the Stockholder's properties or
assets, including the Stockholder's
Shares.
(b) THE SHARES. Subject to the terms of this Agreement, the
Stockholder's Shares and the certificates
representing such Shares are now, and
at all times during the term hereof will
be, held by such Stockholder, or by a
nominee or custodian for the benefit of
such Stockholder. The Stockholder has
good and marketable title to such Shares,
free and clear of any Liens, proxies,
voting trusts or agreements, understandings
or arrangements, except, in the case
of certain of the Stockholders, as set
forth in SCHEDULE I hereto. The
Stockholder owns of record or beneficially
no Common Stock or other voting
interest in the Company other than such
Stockholder's Shares and shares of
Company Common Stock issuable upon the
exercise of options and warrants, in each
case as set forth on SCHEDULE I hereto.
(c) PURCHASE AGREEMENT. Each Stockholder understands and
acknowledges
that the Purchaser is entering into the
Purchase Agreement in reliance upon such
Stockholder's execution and delivery of
this Agreement.
2. BOARD APPROVAL. Each Stockholder understands and acknowledges
that
the Board of Directors of the Company has,
to the extent required by applicable
law, duly and validly authorized and
approved, this Agreement, the Purchase
Agreement and the transactions contemplated
hereby and thereby.
3. AGREEMENTS OF ALL STOCKHOLDERS. Each Stockholder, severally and
not
jointly, agrees as follows:
(a) Until the Transactions are consummated or the Purchase
Agreement is
terminated in accordance with its terms,
the Stockholder shall not, (i) except
as otherwise expressly provided herein,
sell, transfer, pledge, assign or
otherwise dispose of, or enter into any
contract, option or other arrangement
(including any profit sharing arrangement)
or understanding with respect to the
sale, transfer, pledge, assignment or other
disposition of, the Shares to any
person, (ii) enter into or exercise its
rights under any voting arrangement,
whether by proxy, voting agreement, voting
trust, power-of-attorney or
otherwise, with respect to the Shares or
(iii) take any other action that would
in any way restrict, limit or interfere
with the performance of its obligations
hereunder or the transactions contemplated
hereby.
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(b) At any meeting of Stockholders of the Company called to vote
upon
the Transactions and the Purchase Agreement
or at any adjournment thereof or in
any other circumstances upon which a vote,
consent or other approval (including
by written consent) with respect to the
Transactions and the Purchase Agreement
or which is necessary to consummate the
Transactions or for the Company to
perform its obligations under the Purchase
Agreement is sought, each Stockholder
shall, including by executing a written
consent if requested by the Company,
vote (or cause to be voted) such
Stockholder's Shares in favor of the
Transactions and the adoption by the
Company of the Purchase Agreement.
(c) The Stockholders understand and acknowledge that the Purchaser
is
entering into the Purchase Agreement in
reliance upon the agreements of the
Stockholders herein.
4. GRANT OF IRREVOCABLE PROXY COUPLED WITH AN INTEREST; APPOINTMENT
OF
PROXY.
(a) Each Stockholder hereby irrevocably grants to, and appoints
Neil
Koehler, and any other individual who shall
hereafter be designated by the
Stockholders, and each of them, as such
Stockholder's proxy and attorney-in-fact
(with full power of substitution), for and
in the name, place and stead of such
Stockholder, to vote such Stockholder's
Shares, or grant a consent or approval
in respect of such Shares, at any meeting
of stockholders of the Company or at
any adjournment thereof or in any other
circumstances upon which their vote,
consent or other approval is sought in
favor of the Transaction, the adoption by
the Company of the Purchase Agreement and
the approval of the other transactions
contemplated by the Purchase Agreement;
including, without limitation, the
authorization and issuance of the
Preferre
