REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is entered into as of
the Closing Date (as defined herein) by and among Penn Octane Corporation, a
Delaware corporation (the Company), and the person whose signature appears on
the execution pages of this Agreement (together with its permitted successors
and assigns, the "Investors").
This Agreement is entered into pursuant to the Purchase Agreement between
the Company and the Investor dated as of December 14, 1998 (the "Purchase
Agreement"). In order to induce the Investor to enter into the Purchase
Agreement, the Company has agreed to provide the registration rights set forth
in this Agreement. The execution of this Agreement by the Company is a
condition to the closing under the Purchase Agreement.
The parties hereby agree as follows:
1. Definitions
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Capitalized terms used herein without definition shall have the respective
meanings set forth in the Purchase Agreement. As used in this Agreement, the
following terms shall have the following meanings:
Closing Date: The date on which the Closing occurs pursuant to the
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Purchase Agreement.
Exchange Act: The Securities Exchange Act of 1934, as amended, and the
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rules and regulations of the Commission promulgated thereunder.
Losses: The term "Losses" shall have the meaning set forth in Section 6
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hereof.
Prospectus: The prospectus included in any Registration Statement
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(including, without limitation, a prospectus that discloses information
previously omitted from a prospectus filed as part of an effective registration
statement in reliance upon Securities Act Rule 430A), as amended or supplemented
by any prospectus supplement, with respect to the terms of the offering of any
portion of the Registrable Securities covered by such Registration Statement and
all other amendments and supplements to the prospectus, including post-effective
amendments, and all material incorporated by reference or deemed to be
incorporated by reference in such prospectus.
Registrable Securities: All shares of Common Stock sold pursuant to the
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Purchase Agreement, plus any Common Stock issued or issuable to the Investor in
respect of the Warrant Share pursuant to any stock split, stock dividend,
recapitalization, or similar event. The Warrants are not Registrable Securities
hereunder. As to any Registrable Securities, such securities shall cease to be
Registrable Securities when (i) a registration statement with respect to the
sale of such securities shall have become effective under the Securities Act and
such securities shall have been disposed of pursuant to such effective
registration statement, (ii) such securities shall have been distributed
pursuant to Rule 144 or any similar provision then in force, under the
Securities Act, (iii) such securities shall have been otherwise transferred, new
certificates or other evidences of ownership for them not bearing a legend
restricting further transfer and not subject to any stop transfer order or other
restrictions on transfer shall have been delivered by the Company and subsequent
disposition of such securities shall not require registration or qualification
of such securities under the Securities Act or any state securities laws then in
force or (iv) the sale of such securities by the Investor shall no longer
require registration under the Securities Act or such securities shall cease to
be outstanding.
Registration Expenses: All reasonable expenses incurred by the Company in
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complying with Section 3 hereof, including all registration and filing fees,
printing expenses, fees and disbursements of counsel for the Company, and blue
sky fees and expenses.
Registration Statement: Any registration statement of the Company which
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covers any of the Registrable Securities pursuant to the provisions of this
Agreement, including the Prospectus, amendments and supplements to such
registration statement, including post-effective amendments, all exhibits, and
all material incorporated by reference or deemed to be incorporated reference in
such registration statement.
Restricted Securities: The Shares and the Warrant Shares upon original
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issuance thereof, and at all times subsequent thereto, until, in the case of any
such security, it is no longer required to bear the legend set forth on such
security pursuant to the terms of the security, the Purchase Agreement and
applicable law.
Rule 144: Rule 144 under the Securities Act, as such Rule may be amended
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from time to time, or any similar rule or regulation hereafter adopted by the
Commission (excluding Rule 144A).
2. Securities Subject to this Agreement
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The securities entitled to the benefits of this Agreement are the
Registrable Securities.
3. Registration Rights.
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(a) Demand Registration.
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(i) The Investor, or if the Investor shall have assigned any of its
rights to any permitted successors and assigns hereunder, the
holders of a majority of the Registrable Securities may request
that the Company register, and upon such request the Company will
register, all or part of the Registrable Securities (the "Demand
Registration"), subject to the terms and conditions of this
Agreement. The holders of Registrable Securities will be entitled
to request one Demand Registration which may be a shelf
registration relating to sales of proposed to be made by holders
of Registrable Securities pursuant to Rule 415 of the SEC. The
request (a "Registration Request") for the Demand Registration
shall specify (a) the approximate number of shares of Registrable
Securities
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requested to be registered (but not less than a majority of
shares of the then outstanding number of shares of Registrable
Securities), and (b) the intended method of distribution of such
shares. Within ten days after the date of sending of such
request, the Company will give written notice of such requested
registration to all other holders of Registrable of Securities
and will include in such Registrable Securities which holders of
Registrable Securities request the Company to include such
registration by written notice given to the Company with 15 days
after the date of sending of the Company's notice.
(ii) A registration will count as the Demand Registration if (a) the
holders of Registrable Securities are able to register and sell
at least seventy-five percent of the Registrable Securities
requested to be included in such registration or (b) a
registration statement relating to a Demand Registration is
prepared by the Company but prior to or after filing is withdrawn
or abandoned at the request of the holders of the Registrable
Securities to be covered by such registration statement (other
than as a result of a material adverse change to the Company or
following a postponement by the Company pursuant to Section
4(b)).
(iii)The Company may include in any Demand Registration securities
other than shares of Registrable Securities and securities to be
registered for offering and sale on behalf of the Company ("Other
Securities"), subject to compliance with the provisions of this
Section in the event any limitation is imposed on the number of
securities that may be included in such registration. If the
managing underwriter(s) advise the Company in writing that in
their opinion the number of shares of Registrable Securities and
Other Securities desired to be included in such offering exceeds
the number of shares of Registrable Securities and Other
Securities, if any, which can be sold in an orderly manner in
such offering within a price range acceptable to the holders of a
majority of the shares of Registrable Securities initially
requesting registration, the Company will include in such
registration, prior to the inclusion of any Other Securities, the
number of shares of Registrable Securities requested to be
included which in the opinion of such underwriters can be sold in
an orderly manner within the price range of such offering,
allocated pro rata among the respective holders thereof on the
basis of the number of shares of Registrable Securities which
each such holder has requested the Company to include in such
registration.
(iv) Selection of Underwriter. The holders of a majority of the shares
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of Registrable Securities to be included in a registration will
have the right to designate an underwriter to co-manage the
offering being registered under the Demand registration, subject
to the Company's approval which will not be
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unreasonably withheld or delayed. The Company will designate the
lead-managing underwriter of the offering.
(b) "Piggy-Back" Registrations.
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If at any time the Company shall determine to register any of its
Common Stock under the Securities Act, whether in connection with a public
offering by the Company, a public offering by shareholders, or both, including,
without limitation, by means of any shelf registration pursuant to Rule 415
under the Securities Act or any similar rule or regulation, but other than a
Demand Registration or a registration to implement an employee benefit or
dividend reinvestment plan, the Company shall promptly give written notice
thereof to the Investor who shall be the registered holder(s) of Registrable
Securities and shall use its reasonable efforts to effect the registration under
the Securities Act of such Registrable Securities as may be requested in a
writing delivered to the Company within 30 days after such notice by the
Investor as well as to include such Registrable Securities in any notifications,
registrations or qualifications under any state securities laws which shall be
made or obtained with respect to the securities being registered by the Company;
provided, however, that (a) any distribution of Registrable Securities pursu-ant
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to such registration shall be managed by the investment banking firm, if any,
managing the distribution of the securities being offered by the Company on the
same terms as all other securities to be registered, and (b) the Company shall
not be required under this Section 3(b) to include Registrable Securities in any
registration of securities if the Company shall have been advised by the
investment banking firm managing the offering of the securities proposed to be
registered by the Company or others that the inclusion of Registrable Securities
in such offering would substantially interfere with the orderly sale of such
securities which the Company or others propose to register; provided, however,
that in making any determination under this subparagraph (b) as to the inclusion
of the Registrable Securities in any such offering, Registrable Securities shall
be registered on a pro-rata basis with any other securities as to which the
Company has granted or may in the future grant registration rights.
(c) Registration Expenses.
----------------------
All expenses of any registration and offering of Registrable
Securities pursuant to this Section 3 (including, without limitation,
registration fees, and disbursements of the Company's counsel, fees for listing
the Registrable Securities on any exchange on which similar securities of the
Company are listed for trading or on the NASDAQ/AMEX Stock Market) shall be
borne by the Company provided, however, that the expenses of any Demand
Registration made within one year of the date of this Agreement shall be paid by
the holders of the Registrable Securities. The Company shall pay underwrit-ing
discounts or commissions payable with respect to the sale of the Registrable
Securities, the fees and disbursements of the separate counsel for the holders
of Registrable Securities and related transfer taxes in an aggregate amount not
to exceed $20,000.
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4. Registration Procedures.
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(a) In connection with any registration pursuant to Section 3 hereof, the
Company will prepare and file with the SEC, a Registration Statement, and any
amendments and supplements thereto, on any form for which the Company then
qualifies or which counsel for the Company shall deem appropriate, and use its
reasonable best efforts to cause such Registration Statement to become
effective; provided that before filing with the SEC a Registration Statement or
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prospectus or any amendments or supplements thereto, the Company will (i)
furnish to the Investor and counsel selected by the Investor copies of all such
documents proposed to be filed, which documents will be subject to the review
and comment by the Investor and such counsel, and (ii) notify the Investors of
any stop order issued or threatened by the SEC and take all reasonable actions
required to prevent the entry of such stop order or to remove it if entered. The
Company will also (i) promptly notify the Investor of the effectiveness of such
Registration Statement, (ii) furnish to the Investor such number of copies of
such Registration Statement, and each amendment and supplement thereto, the
Prospectus included in such Registration Statement and such other documents as
the Investor may reasonably request; (iii) use its reasonable best efforts to
register or qualify such securities to be registered under such other securities
or blue sky laws of such jurisdictions as any Purchaser reasonably requests;
(iv) use its reasonable best efforts to cause all such securities to be
registered to be listed on each securities exchange on which similar securities
issued by the Company are then listed for trading or on the NASDAQ/AMEX Stock
market, and to provide a transfer agent and registrar for such securities to be
registered no later than the effective date of such Registration Statement; (v)
enter in to such customary agreements (including an underwriting agreement in
customary form) and take all such other actions as the Investor or the
underwriters retained by the Investor, if any, reasonably request in order to
expedite or facilitate the disposition of such securities to be registered,
including customary indemnification; and (vi) otherwise use its reasonable
efforts to comply with all applicable rules and regulations of the SEC and the
states and make available to the Investor as soon as reasonably practicable (but
not more than eighteen months) after the effective date of the registration
Statement, an earnings statement that satisfies the provisions of Section 11(a)
of the Securities Act and the rules of the SEC thereunder. The Company shall
take all other actions reasonably necessary or advisable to enable the Investor
to consummate the disposition of any Registrable Securities pursuant to any
registration Statement and to comply with the Securities Act and the Exchange
Act in connection with any offer and sale of any Registrable Securities. The
terms of this Section 4 shall not require the Company to qualify as a foreign
corporation or as a dealer in securities or to execute or file any general
consent to service of process under the laws of any such jurisdiction where it
is not so subject.
(b) In connection with any effective Registration Statement filed pursuant
to this Agreement, the Company will immediately notify the holders of
Registrable Securities registered pursuant to the Registration Statement of the
happening of any event as a result of which the Registration Statement or any
Prospectus contains an untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then existing, and will
promptly prepare and furnish to the holders of Registrable Securities a
5
supplement or amendment to such prospectus so that the Registration Statement or
such Prospectus will not contain an untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary to make
the statements therein not misleading in light of the circumstances then
existing. Notwithstanding the foregoing, if the Company determines in its
reasonable business judgment that an amendment or supplement to the Registration
Statement or any such Prospectus would interfere with any material financing,
acquisition, corporate reorganization, or other material corporate transaction
or development involving the Company, the Company may delay the preparation and
filing of such amendment or supplement for a period of up to 60 days in the
aggregate in order to complete or make a public announcement with respect to
such material transaction or development (it being understood that the Company
shall be obligated to extend the period of time it is required to maintain in
effect any such Registration Statement to take into account the period of time
that such holders of Registrable Securities are unable to offer or sell
Registrable Securities by reason of this Section 4(c)).
5. Holdback Agreements.
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(a) Restrictions on Public Sale by Holders of Registrable Securities.
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Each holder of Registrable Securities whose Registrable Securities are covered
by a Registration Statement filed pursuant to Section 3 hereof agrees, if
requested by the managing underwriters in an underwritten offering (to the
extent timely notified in writing by the Company or the managing underwriters),
not to effect any public sale or distribution of securities of the Company of
any class included in such Registration Statement, including a sale pursuant to
Rule 144 (except as part of such underwritten offering), during the 10-day
period prior to, and the 90-day period beginning on, the effective date of any
Registration Statement.
(b) The foregoing provisions shall not apply to any holder of
Registrable Securities if such holder is prevented by applicable statute or
regulation from entering into any such agreement; provided, however, that any
-----------------
such holder shall undertake in its request to participate in any such
underwritten offering not to effect any public sale or distribution of the class
of Registrable Securities covered by such Registration Statement (except as part
of such underwritten offering) during such period unless it has provided five
(5) business days prior written notice of such sale or distribution to the
managing underwriter or underwriters.
6. Indemnification
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(a) Indemnification by Company. The Company shall indemnify and hold
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harmless, to the full extent permitted by law, each holder of Registrable
Securities, its officers, directors, agents and employees, each person who
controls such holder (within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act), and the partners, officers, directors, agents
or employees of any such controlling person, from and against all losses,
claims, damages, liabilities, costs (including, without limitation, all
reasonable attorneys' fees) and expenses (collectively, "Losses"), arising out
of or based upon any untrue statement of a material fact contained in any
Registration Statement, Prospectus or preliminary prospectus, or arising out of
6
or based upon any omission of a material fact required to be stated therein or
necessary to make the statements therein in light of the circumstances under
which they were made (in the case of any Prospectus) not misleading, except
insofar as the same are based solely upon information furnished to the Company
by such holder for use therein; provided, however, that the Company shall not be
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liable in any such case to the extent that any such Loss arises out of or is
based upon an untrue statement or omission made in any preliminary prospectus or
Prospectus if (i) such holder failed to send or deliver a copy of the Prospectus
or Prospectus supplement with or prior to the delivery of written confirmation
of the sale of Registrable Securities and (ii) the Prospectus or Prospectus
supplement would have corrected such untrue statement or omission.
(b) Indemnification by Holder of Registrable Securities. In connection
---------------------------------------------------
with any Registration Statement in which a holder of Registrable Securities is
participating, such holder of Registrable Securities shall furnish to the
Company in writing such information concerning such holder and its proposed
disposition of Registrable Securities pursuant to such registration as the
Company may reasonably request for use in connection with any Registration
Statement or Prospectus. Each Investor shall indemnify and hold harmless, to
the full extent permitted by law, the Company, and its officers, directors,
agents and employees, each person who controls the Company (within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act) and the
officers, directors, agents or employees of any such controlling person, from
and against all Losses arising out of or based upon any untrue statement of a
material fact contained in any Registration Statement, Prospectus or preliminary
prospectus, or arising out of or based upon any omission of a material fact
required to be stated therein or necessary to make the statements therein in
light of the circumstances under which they were made (in the case of any
Prospectus) not misleading, to the extent, but only to the extent, that such
untrue statement or omission is contained in any information so furnished in
writing by such holder to the Company for use in such Registration Statement,
Prospectus or preliminary prospectus. Such indemnity shall remain in full force
and effect regardless of any investigation made by or on behalf of the Company
or any holder and any of their respective directors, officers, agents, employees
or controlling persons (within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act) and shall survive the transfer of such
securities by such holder.
(c) Conduct of Indemnification Proceedings. If any action or
------------------------------------------
proceeding (including any governmental investigation or inquiry) shall be
brought or any claim shall be asserted against any person entitled to indemnity
hereunder (an "indemnified party"), such indemnified party shall promptly notify
the party from which such indemnity is sought (the "indemnifying party") in
writing, and the indemnifying party shall assume the defense thereof, including
the employment of counsel reasonably satisfactory to the indemnified party and
the payment of all fees and expenses incurred in connection with the defense
thereof. All such fees and expenses (including any fees and expenses incurred
in connection with investigating or preparing to defend such action or
proceeding) incurred by the indemnified party, shall be paid to the indemnified
party, as incurred, within 20 days of written notice thereof to the indemnifying
party; provided, however, that if, in accordance with this Section 6, the
------------------
indemnifying party is not liable to the indemnified party, such fees and
expenses shall be returned promptly to the indemnifying party. Any such
indemnified party shall have the right to employ separate counsel in any such
action, claim or proceeding and to participate in the defense thereof, but the
7
fees and expenses of such counsel shall be the expense of such indemnified party
unless (a) the indemnifying party has agreed to pay such fees and expenses, (b)
the indemnifying party shall have failed promptly to assume the defense of such
action, claim or proceeding and to employ counsel reasonably satisfactory to the
indemnified party in any such action, claim or proceeding, or (c) the named
parties to any such action, claim or proceeding (including any impleaded
parties) include both such indemnified party and the indemnifying party, and
such indemnified party shall have been advised by counsel that there may be one
or more legal defenses available to it which are different from or additional to
those available to the indemnifying party (in which case, if such indemnified
party notifies the indemnifying party in writing that it elects to employ
separate counsel at the expense of the indemnifying party, the indemnifying
party shall not have the right to assume the defense of such action, claim or
proceeding on behalf of such indemnified party, it being understood, however,
that the indemnifying party shall not, in connection with any one such action,
claim or proceeding or separate but substantially similar or related actions,
claims or proceedings in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and expenses of
more than one separate firm of attorneys (together with appropriate local
counsel) at any time for all such indemnified parties hereunder, unless in the
opinion of counsel for such indemnified party a conflict of interest may exist
between such indemnified party and any other of such indemnified parties with
respect to such action, claim or proceeding, in which event the indemnifying
party shall be obligated to pay the fees and expenses of such additional counsel
or counsels). No indemnifying party will consent to entry of any judgment or
enter into any settlement which does not include as an unconditional term
thereof the release of such indemnified party from all liability in respect to
such claim or litigation without the written consent (which consent will not be
unreasonably withheld) of the indemnified party. No indemnified party shall
consent to entry of any judgment or enter into any set-tlement without the
written consent (which consent will not be unreasonably withheld) of the
indemnifying party from which indemnity or contribution is sought.
(d) Contribution. If the indemnification provided for in this Section
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6 from the indemnifying party is unavailable to an in-demnified party in respect
of any Losses, then each applicable indemnifying party in lieu of indemnifying
such indemnified party hereunder shall contribute to the amount paid or payable
by such indemnified party as a result of such Losses, in such proportion as is
appropriate to reflect the relative fault of the indemnifying party and
indemnified party in connection with the actions, statements or omissions which
resulted in such Losses as well as any other relevant equitable considerations.
The relative fault of such indemnifying party and the indemnified party shall be
determined by reference to, among other things, whether any action in question,
including any untrue statement of a material fact or omission of a material
fact, has been taken or made by, or relates to information supplied by, such
indemnifying party or indemnified party, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
action, statement or omission. The amount paid or payable by a party as a
result of any Losses shall be deemed to include, subject to the limitations set
forth in Section 6(c), any legal or other fees or expenses reasonably incurred
by such party in connection with any action, suit, claim, investigation or
proceeding.
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The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 6(d) were determined by pro rata
allocation or by any other method of allocation which does not take into account
the equitable considerations referred to in the immediately preceding paragraph.
No person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
7. Rule 144
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The Company shall file the reports required to be filed by it under the
Securities Act and the Exchange Act and the rules and regulations adopted by the
Commission thereunder, and will take such further action as any holder of
Registrable Securities may reasonably request, all to the extent required from
time to time to enable such holder to sell Registrable Securities without
registration under the Securities Act within the limitation of the exemption
provided by Rule 144 or Rule 144A. Upon the request of any holder of
Registrable Securities, the Company shall deliver to such holder a written
statement as to whether the Company has complied with such information and
requirements. Notwithstanding the foregoing, nothing in this Section 7 shall be
deemed to require the Company to register any of its securities under any
section of the Exchange Act.
8. Underwritten Registrations
---------------------------
If any of the Registrable Securities covered by any registration are to be
sold in an underwritten offering, the investment banker or investment bankers
and manager or managers that will administer the offering will be selected by
the Company. The Investor may not participate in any underwritten registration
hereunder unless the Investor (i) agrees to sell the Investor's Registrable
Securities on the basis provided in the underwriting arrangements approved by
the Company, and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents required
under the terms of such underwriting arrangements.
9. Miscellaneous
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(a) Amendments and Waivers. The provisions of this Agreement,
------------------------
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given unless the Company obtains the written consent of holders of at
least a majority of the then outstanding Registrable Securities affected by such
amendment, modification or supplement. Notwithstanding the foregoing, a waiver
or consent to depart from the provisions hereof with respect to a matter which
relates exclusively to the rights of holders of Registrable Securities whose
securi-ties are being sold pursuant to a Registration Statement and which does
not directly or indirectly affect the rights of holders of Registrable
Securities whose securities are not being sold pursuant to such Registration
Statement may be given by holders of a majority of the Registrable Securities
being sold by such holders.
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(b) Notices. All notices and other communications provided for or
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permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, next day air courier, telex, or telecopy: (i) if to a holder
of Registrable Securities, at the most current address given by such holder to
the Company in accordance with the provisions of this Section 9(b), which
address initially is, with respect to the Investor, the address set forth in
Section B of the Purchase Agreement; and (ii) if to the Company, at 000 Xxxxxxxx
Xxxxxxxxx, Xxxxx 000, Xxxxxxx Xxxx Xxxxxxxxxx 00000, attention: Secretary, and
thereafter at such other address, notice of which is given in accordance with
the provisions of this Section 8(b).
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; two business days after
being deposited in the mail, postage prepaid, if mailed; one business day after
being sent by next day air courier; when answered back, if telexed; and when
receipt acknowledged, if telecopied.
(c) Transfer of Registration Rights. The rights granted to the holders
-------------------------------
pursuant to this Agreement to cause the Company to register securities may not
be assigned or otherwise transferred in any way other than to an Affiliate of
the holder to whom the holder has transferred all or any part of the Warrant or
the Amended Note.
(d) Counterparts. This Agreement may be executed in any number of
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counterparts by the parties hereto, each of which when so executed shall be
deemed to be an original and all of which taken together shall constitute one
and the same agreement.
(e) Headings. The headings in this Agreement are for convenience of
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reference only and shall not limit or otherwise affect the meaning hereof.
(f) Governing Law. This Agreement shall be governed by and construed
---------------
in accordance with the laws of the State of New York without regard to
principles of conflict of laws.
(g) Severability. If any term, provision, covenant or restriction of
------------
this Agreement is held by a court of competent jurisdiction to be invalid, void
or unenforceable, the remainder of the terms, provisions, covenants and
restrictions set forth herein shall remain in full force and effect and shall in
no way be affected, impaired or invalidated, and the parties hereto shall use
their best efforts to find and employ an alternative means to achieve the same
or substantially the same result as that contemplated by such term, provision,
covenant or restriction. It is hereby stipulated and declared to be the
intention of the parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of such which may
be hereafter declared invalid, void or unenforceable.
(h) Entire Agreement. This Agreement is intended by the parties to be
-----------------
a final expression of their agreement and a complete and exclusive statement of
the agreement and understanding of the parties hereto in respect of the subject
matter contained herein. There are no restrictions, promises, warranties nor
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undertakings, other than those set forth or referred to herein with respect to
the registration rights granted by the Company with respect to the securities
sold pursuant to the Purchase Agreement. This Agreement supersedes all prior
agreements and understandings between the parties with respect to such subject
matter.
(i) Attorneys' Fees. If any action or proceeding is brought to enforce
----------------
any provision of this Agreement, or where any provision hereof is validly
asserted as a defense, the successful party shall be entitled to recover
reasonable attorneys' fees in addition to its costs and expenses and any other
available remedy.
IN WITNESS WHEREOF, the parties have executed this agreement as of December
14, 1998.
PENN OCTANE CORPORATION
By: ______________________________________
Xxx X. Xxxxxxxx
Chief Financial Officer
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IN WITNESS WHEREOF, the parties have executed this agreement as of December 14,
1998.
KFP Grand Ltd.
By: ____________________________________
Xxxxxxx Xxxxxx
President
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SCHEDULE I
Investors and Addresses
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KFP Grand Ltd. Shares Purchased: 500,000
000 X. Xxxx Xxxxxxxxx Xxxxxxx, Xxxxx 0000 Xxxxxxxx: 300,000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx Xxxxxx
President
with a copy to:
Xxxxxx Xxxxxx, Esq.
Xxxxxx & Xxxx, L.L.P.
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
1
