AMENDED AND RESTATED CONSULTING AGREEMENT
Exhibit
10.6
AMENDED
AND RESTATED
THIS
AMENDED AND RESTATED CONSULTING AGREEMENT (this “Restated Agreement”) is entered
into as of this 15th day of November 2005 by and between Penn Octane
Corporation, a Delaware corporation (“Penn Octane”) and Rio Vista Energy
Partners L.P., a Delaware limited partnership (“Rio Vista”) (Penn Octane and Rio
Vista collectively, the "Company") and Xxxxxx X. Xxxxxxx, an independent
contractor ("Consultant"), as follows:
Recitals
WHEREAS,
the Company and Consultant are parties to a Consulting Agreement dated on or
about July 19, 2005 (the “Agreement”); and
WHEREAS,
the Company and Consultant wish to amend and restate the Consulting Agreement,
in full, as set forth herein.
Agreement
NOW,
THEREFORE, in consideration of the foregoing and the covenants and agreements
contained herein, the parties agree as follows:
Section
1: Engagement of Services
1.1 Services
Performed by Consultant.
Consultant shall serve as a special advisor to the board of directors of Penn
Octane and the board of managers of Rio Vista and shall provide the following
services (the “Services”) to the Company: assistance with the Company’s sale of
all or part of its LPG assets and business, assistance with other transactions
(including restructurings) involving the Company as mutually agreed by the
parties and such other services that the Company may reasonably request that
are
customarily associated with such duties. Consultant’s duties may be reasonably
modified at the Company's discretion from time to time. Consultant will report
directly to the board of directors of Penn Octane and the board of managers
of
Rio Vista and will inform the chief executive officer of the Company of matters
pertaining to the Services on a regular basis.
Consultant
shall at all times faithfully and diligently perform the Services under this
Restated Agreement and use Consultant’s best efforts, skill, and attention for
the fulfillment of the Services and the interests of the Company. Consultant
shall have discretion and control of the rendering of the Services and the
manner in which said Services are performed. Consultant shall perform all such
Services under the name and as a representative of the Company to any third
parties engaged in discussions with the Company. Unless otherwise agreed to
by
the parties, Consultant shall have no obligation to work any particular hours
or
days, nor shall Consultant be obligated to devote full time to the performance
of the Services.
1
1.2 Company
Affiliates.
Consultant acknowledges and agrees that the Company may, from time to time,
request Consultant to provide the Services or such other related services to
any
of the Company’s Affiliates, subject to the terms and conditions of this
Restated Agreement. For purposes of this Restated Agreement, “Affiliates” shall
mean a parent company, or an affiliated or subsidiary corporation or any other
legal entity that is owned, whether entirely or partially, or controlled by
the
Company. As used in this definition, "owned or controlled by" means owns or
holds the right to vote any of the stock or units of such entity, including
without limitation, the Company’s affiliated limited partnerships and limited
liability companies in the United States and the Company’s affiliated entities
in Mexico. To the extent that the Consultant provides any services to the
Affiliates, such Affiliates would have all the rights and benefits provided
to
the Company hereunder, as if such Affiliates were the Company.
1.3 Independent
Contractor.
Consultant enters into this Restated Agreement as, and shall continue to be,
an
independent contractor. Under no circumstances shall Consultant look to the
Company as his employer, or as a partner, agent, or principal. There shall
be no
tax withholdings taken from any Fees paid to Consultant pursuant to this
Restated Agreement (including, without limitation, FICA, state and federal
unemployment compensation contributions, and state and federal income taxes),
and Consultant shall pay, when and as due, any and all taxes incurred as a
result of Consultant's compensation pursuant to this Restated Agreement. Upon
request, Consultant shall provide the Company with proof of such payment.
Consultant
will indemnify and hold harmless the Company from and against all claims,
damages, losses and expenses, including reasonable fees and expenses of
attorneys and other professionals, relating to Consultant’s failure to pay such
taxes as well as any obligation imposed by law on the Company to pay any
withholding taxes, social security, unemployment or disability insurance, or
similar items in connection with compensation received by Consultant pursuant
to
this Restated Agreement.
Consultant
also understands and agrees that Consultant shall be solely responsible for
complying with all federal, state, and local laws requiring business permits,
certificates, and licenses required to carry out the Services to be performed
by
Consultant under this Restated Agreement. Furthermore, Consultant recognizes
that it is Consultant’s responsibility to obtain all insurance coverage
(including workers’ compensation) for Consultant. Upon request, Consultant shall
provide the Company with proof of such coverage.
1.4 Agency.
It is
expressly understood and agreed that Consultant shall only represent the Company
to the extent authorized by this Restated Agreement, and in no other way, and
that Consultant shall not be an agent of the Company. In this regard, Consultant
shall have no authority to enter into any agreements or other binding
obligations on the Company's behalf without the prior written authorization
of
the Company, and that Consultant shall not hold himself or herself out as an
officer, employee or agent of the Company; provided, however, that Consultant
may hold himself out as a representative of the Company as specifically
authorized by this Restated Agreement or otherwise by the Company.
2
Section
2: Compensation
2.1 Payment
of Fees.
In
consideration of the Services rendered by Consultant to the Company and/or
to
the Affiliates, the Company agrees to pay the following fees (“Fees”) to
Consultant: an amount equal to two percent (2%) of (i) the net proceeds to
the
Company resulting from a sale of assets to a third party, and (ii) the net
proceeds to the Company from sales of liquefied petroleum gas (“LPG”) to PMI
Trading Limited (“PMI”) for any calendar month in which such sales exceed the
volumes set forth on Schedule
1
attached
hereto (“Excess Volumes”), and only to the extent of net proceeds attributable
to such Excess Volumes. For purposes of a sale of assets, net proceeds shall
equal the total purchase price for the assets, as adjusted in accordance with
the purchase and sale agreement, net of transaction costs. Purchase price
adjustments shall not include payment of intercompany debt, and transaction
costs shall not include taxes or other costs not directly related to the sale.
For purposes of sales of Excess Volumes of LPG, net proceeds shall equal the
total sales price of LPG sold to PMI less transaction costs. Transaction costs
shall include the cost of LPG purchased from suppliers and other incremental
costs associated with the Excess Volumes including transportation and financing
costs but shall not include taxes or other costs not directly related to the
sale. The Fees will be due and payable to Consultant thirty (30) days following
the receipt by the Company of such net proceeds. Consultant shall be entitled
to
Fees with respect to any such sale of assets or such excess LPG volumes that
occur after the date of this Restated Agreement and on or before ninety (90)
days following any termination of this Restated Agreement. Consultant shall
not
be entitled to any Fees with respect to any sale of assets or excess LPG volumes
that occur more than ninety (90) days following any termination of this Restated
Agreement or more than one year following the date of this Restated Agreement,
whichever first occurs. Consultant shall not be entitled to any Fees with
respect to any excess LPG volumes after March 31, 2006.
In
lieu
of cash payment, the Company may, in its sole discretion, offset the amount
of
any Fees due and payable to Consultant against any amounts owed (whether or
not
then due or payable) by Consultant to the Company, including without limitation,
any amounts owed by Consultant to Penn Octane pursuant to that certain
promissory note of Consultant dated April 11, 2000 with a principal amount
of
$3,196,693.00, as such note may be amended from time to time.
Penn
Octane will be responsible for payment of Fees only with respect to net proceeds
actually received by Penn Octane. Rio Vista will be responsible for payment
of
Fees only with respect to net proceeds actually received by Rio Vista. Rio
Vista
will separately reimburse Penn Octane for any Fees that Penn Octane pays to
Consultant on Rio Vista’s behalf, including by way of offset against
Consultant’s promissory note to Penn Octane.
In
the
event of any disagreement between the Company and Consultant with regard to
the
calculation of Fees, the amount of Fees shall be conclusively determined by
the
Company’s independent public accountants within thirty (30) days following
written request by either the Company or Consultant, and the Fees will be due
and payable ten (10) days following such determination.
Nothing
contained in this Restated Agreement shall preclude the Company from paying
additional fees or compensation to Consultant for services rendered with respect
to other mutually agreed transactions. Any understanding regarding such
additional fees or compensation will be memorialized in a separate written
agreement between the parties.
3
2.2 Expenses.
Consultant shall provide receipts for all actual, reasonable travel and other
out-of-pocket expenses incurred by Consultant as necessary in connection with
the performance of the Services by Consultant. Consultant agrees to submit
to
the Company such documentation as may be necessary to substantiate all such
expenses and reimbursements for deduction by the Company as reasonable and
necessary under Section 162 of the Internal Revenue Code. No expense claim
more
than ninety (90) days old shall be reimbursed.
2.3 Taxes.
Fees do
not include taxes. To the extent that Consultant is required to pay any federal,
state or local income, sales, use, property or value-added taxes based upon
the
Fees and/or the Services provided under this Restated Agreement, such taxes
shall be the sole responsibility of Consultant.
Section
3: Term; Termination
3.1 Term.
The
term of this Restated Agreement shall begin on the date first set forth above
and shall continue until the earlier of (i) termination in accordance with
the
provisions of this Section
3.1,
and
(ii) one year from the date of this Restated Agreement. Each of the Company
and
Consultant may terminate this Restated Agreement, with or without cause, upon
thirty (30) days’ written notice to the other party. The provisions of
Sections
1.3, 2.1, 4, 5, 6, 9, and 10
shall
survive the expiration or termination of this Restated Agreement.
3.2 Final
Payments.
Following termination of this Restated Agreement in accordance with Section
3.1,
any
accrued, but unpaid, Fees shall be shall be paid to Consultant in accordance
with Section
2.1.
Within
thirty (30) days following the date of such termination, Consultant shall submit
a final expense reimbursement request to the Company in accordance with
Section
2.2.
Section
4: Confidentiality.
4.1 Duty
to Maintain Confidential Information.
(a) The
Company and the Affiliates have previously furnished to Consultant, and may
continue to furnish to Consultant, such information, proprietary data and access
to the Company’s personnel and records (all such information and access,
“Information”) as reasonably necessary and/or appropriate for Consultant to
perform the Services, the confidentiality of which gives the Company and the
Affiliates a competitive advantage in its business. As used herein, the term
“Information” is to be broadly construed and includes, but is not limited to,
(i) presentations, ideas, trade secrets, processes, systems, techniques,
formulas, source and object code, data, programs, know-how, flowcharts, methods,
compounds, diagrams, drawings, models, specifications, improvements,
discoveries, developments, designs, and other works of authorship, whether
patented or registered for trademark or copyright protections, if any, (ii)
information regarding marketing, sales, licensing, accounting, product or
service development, assets, competitive analyses, unpublished financial
statements, budgets, forecasts, prices, costs, business plans, research and
development plans, clients, client marketing, research and any other
confidential client activity, suppliers, and employees, (iii) information
relating to potential acquisitions, dispositions and financing of the Company
and Affiliates, and (iv) any other information of the type which the Company
and/or the Affiliates have a legal obligation to keep confidential or which
the
Company and/or Affiliate treats as confidential or proprietary, whether or
not
owned or developed by the Company or the Affiliates. The term “Information”
shall also include any and all such Information pertaining to the Company,
its
Affiliates, and their respective customers and suppliers.
4
(b) During
the time that this Restated Agreement remains in effect and at all times
thereafter, Consultant agrees:
(1) to
keep
the Information confidential and not to copy, publish, transmit, or disclose
to
others or allow any other party to copy, publish, transmit, or disclose to
others, any Information, except in accordance with Consultant's fiduciary duty
to the Company pursuant to this Restated Agreement and in furtherance of the
interests of the Company and the Affiliates;
(2) to
use
the Information exclusively for the purpose of performing the Services under
this Restated Agreement and for no other purpose; and
(3) that
the
Information is, shall be, and shall remain the exclusive property of the Company
and the Affiliates, and Consultant shall neither have nor acquire any right,
title, or interest therein.
(c) The
foregoing confidentiality obligations of Consultant shall not apply to any
information that (i) is a matter of public knowledge (from a source or sources
other than Consultant), (ii) is independently developed by a person not a party
to this Restated Agreement without the use, directly or indirectly, of the
Information, or (iii) is required by law or the order of any court or
governmental agency, or in any litigation or similar proceeding to be disclosed,
provided that Consultant shall, prior to making any such required disclosure,
notify the Company and/or the Affiliate in sufficient time to permit them to
seek an appropriate protective order.
4.2.
Third
Party Information.
Consultant understands that the Company and the Affiliates have received and
in
the future will receive from third parties confidential or proprietary
information (“Third Party Information”) subject to a duty of the Company and the
Affiliates to hold such information in confidence and to use it only for the
limited, authorized purpose of performing its obligations to the third party.
Both during and after the term of this Restated Agreement, Consultant will
hold
all Third Party Information in the strictest confidence and will not disclose,
misappropriate, disseminate, publish, or use it in any manner or form, except
as
required by the Services for the Company and/or the Affiliates or as expressly
authorized in writing by an officer of the Company and/or the Affiliates.
4.3 Breach
of Confidentiality.
Both
parties agree that in the event of a breach, threatened breach, violation,
or
evasion of the terms of this Section
4,
immediate and irreparable injury shall occur to the Company and/or its
Affiliates, that such injury may be impossible to measure or remedy in monetary
damages, and the Company and/or the Affiliates shall be authorized to seek
all
equitable remedies, including injunctive relief or specific performance, in
addition to any other legal or equitable remedies that may be available under
this Restated Agreement and/or at law.
5
4.4 Return
of Company Information.
Upon
termination of this Restated Agreement or upon request by the Company and/or
the
Affiliates, Consultant will promptly deliver to the Company and the Affiliates
all drawings, notes, memoranda, presentations, brochures, specifications,
programs, reports, and other documents and manifestations, with all copies
and
any other materials containing or disclosing any Information, Third Party
Information or any other materials related to the Company or the Affiliates
or
the Services, whether prepared by Consultant or another party. Consultant agrees
not to retain any written, electronic or other tangible material containing
or
concerning any Information or Third Party Information of the Company and/or
the
Affiliates and to maintain the confidentiality of this Information, Third Party
Information and materials in the future.
4.5 Trading
in Company Securities.
Consultant shall not buy, sell or conduct any other transaction in or relating
to the securities of the Company at any time when Consultant is in possession
of
material, nonpublic information concerning the Company, its Affiliates, or
its
or their securities. Notwithstanding the foregoing, Consultant may buy, sell
or
conduct any other transaction in the securities of the Company directly with
the
Company or an Affiliate of the Company at any time. The restrictions contained
in this Section 4.5 shall not apply with respect to information that has been
publicly disclosed by the Company in a manner consistent with the provisions
of
Rule 101(e) of Regulation FD promulgated under the Securities Exchange Act
of
1934.
4.6 Termination
of Obligations.
Consultant’s obligations under this Section
4
shall
terminate two (2) years after the termination or expiration of this Restated
Agreement.
Section
5: Assignment of Ownership
5.1 Work
Product.
(a) Consultant
agrees and hereby intends that all information, trade secrets, data,
discoveries, programs, business plans, documents, materials and works of
authorship or other intellectual property arising out of, resulting from,
related to, or in connection with the Services provided by Consultant, or
otherwise conceived or discovered by Consultant, alone or with others, under
this Restated Agreement, or in connection with services rendered by Consultant
to the Company or the Affiliates before the date of this Restated Agreement
(collectively, the “Work Product”) are specially ordered or commissioned works
and shall be considered work made for hire as provided in the U.S. Copyright
Act
(17 U.S.C. 101(2)). All Work Product and the benefits thereof shall immediately
and automatically be the sole and absolute property of the Company and/or the
Affiliates, as the case may be.
6
(b) In
addition to the foregoing, Consultant hereby irrevocably assigns, conveys and
transfers to the Company and/or to the Affiliates, their successors and assigns,
as the case may be, all of Consultant’s right, title and interest worldwide in
all copyrights, patents, trade secrets, confidential and proprietary rights
in
and to the Work Product, including any derivations or modifications thereto
and
any associated moral rights, and any other work product created by Consultant
for the Company or the Affiliates or during any time Consultant is performing
services for the Company or the Affiliates. Further, Consultant agrees to
execute, verify and deliver such additional assignment documentation with
respect to the Work Product as the Company or the Affiliates may request from
time to time. If Consultant has any rights in and to the Work Product that
cannot be assigned, (i) Consultant hereby unconditionally and irrevocably agrees
to waive and hereby does waive enforcement of such rights against Company and
the Affiliates, their successors, assigns and licensees, and (ii) Consultant
agrees to grant and hereby does grant to Company and the Affiliates, their
successors, assigns and licensees, a royalty-free, worldwide, perpetual,
irrevocable, exclusive license to use, copy, modify, transfer, offer for sale
and distribute the Work Product for any and all legal purposes. In addition,
Consultant shall assist the Company and the Affiliates in obtaining patents,
copyrights and any other available legal protection for the Work Product.
(c) Nothing
in this Section
5.1
shall be
interpreted to alter or modify Consultant’s status as an independent
contractor.
5.2 Enforcement
of Rights.
Consultant
shall assist the Company and the Affiliates in every proper way to obtain,
and
enforce the Company’s and/or the Affiliates’ United States and foreign rights
relating to the Work Product or the Information in any and all countries. To
that end, Consultant shall execute, verify, and deliver such documents and
perform such other acts (including appearances as a witness) as the Company
or
the Affiliates may reasonably request for use in applying for, obtaining,
perfecting, evidencing, sustaining and enforcing such rights and the assignment
thereof. If the Company or the Affiliates are unable for any reason to obtain
Consultant’s signature, after reasonable effort, on any documentation needed in
connection with the foregoing obligations, Consultant hereby irrevocably
designates and appoints the Company and the Affiliates and their duly authorized
agents as Consultant’s attorney-in-fact to act for and on Consultant’s behalf to
execute, verify and file any such documents and to do all other lawfully
permitted acts to further the purposes of this Section
5
with the
same legal force and effect as if executed by Consultant. Consultant hereby
irrevocably waives and assigns to the Company and the Affiliates, any and all
claims, of any nature whatsoever, which Consultant now or may hereafter have
against the Company and/or the Affiliates for infringement with respect to
any
Work Product.
Section
6: Restrictive Covenants
6.1 Conflict
of Interest.
During
the period of Consultant’s engagement with the Company, without the prior
written consent of the Company: (a) Consultant shall not directly or indirectly
engage in any employment, occupation, consulting, or other business activity
which the Company determines in good faith to be in competition with the Company
or its Affiliates; and (b) Consultant shall not usurp or take advantage of
any
such business activity without first offering the opportunity to the Company
and/or the Affiliates.
7
6.2 Compliance
with Laws.
Consultant agrees that in the course of fulfilling Consultant’s responsibilities
under this Restated Agreement, he shall not engage in any conduct, furnish
any
information or take any other action which would violate or cause the Company
to
violate any United States law or lose any United States federal tax benefits,
including but not limited to any of the activities described in or prohibited
by
The Foreign Corrupt Practices Act of 1977, Section 999 of The Internal Revenue
Code of 1986, The Export Administration Act of 1984, and all regulations
promulgated thereunder. Furthermore, Consultant agrees that in performing the
Services he will comply with and avoid violation of any other applicable laws
of
the Mexico, the United States of America, the State of Texas and any other
jurisdiction or political subdivision thereof, including regulations, rules
and
orders promulgated under such laws and customs having the effect of law. Without
limiting the generality of the foregoing, Consultant will not make any offer,
payment, promise to pay or authorization of the payment of any money, or any
offer, gift, promise to give, or authorization of the giving of anything of
value, directly or indirectly, to any government official, political party,
party official, or candidate for public or political office to induce such
persons to use their influence with a government or instrumentality in order
to
obtain an improper business advantage for Consultant or the Company. Consultant
will not retain any sub-agent or representative in connection with the
performance of the Services without the prior written consent of the Company.
6.3 Equitable
Remedies.
Consultant acknowledges that irreparable injury will result to the Company
from
violation of any of the terms of this Restated Agreement, specifically those
identified under Sections
4, 5 and 6.
Therefore, Consultant expressly agrees that the Company shall be entitled,
in
addition to damages and any other remedies provided by law, to an injunction
(without notice and without the necessity of posting a bond) or other equitable
remedy respecting such violation or continued violation.
Section
7: Consultant’s Representations.
7.1 No
Conflicts.
Consultant represents and warrants that performance of this Restated Agreement
does not and will not breach any other agreement to which Consultant is a party.
Consultant further represents and warrants that Consultant has not entered
into,
and agrees not to enter into, any agreement, either oral or written, in conflict
with or in violation of this Restated Agreement.
7.2 Binding
Obligation.
Upon
its execution and delivery, this Restated Agreement shall constitute the valid
and binding obligation of Consultant, enforceable against Consultant in
accordance with its terms, except that such enforcement may be subject to
bankruptcy, insolvency, reorganization, moratorium or other similar laws now
or
hereafter in effect relating to creditors’ rights and general principles of
equity.
Section
8: Company’s Representations
8.1 Authority.
Company
represents that it has the full power and authority to enter into and perform
this Restated Agreement and that the Company has authorized the execution,
delivery, and performance of this Restated Agreement.
8
8.2 Binding
Obligation.
Upon
its execution and delivery, this Restated Agreement shall constitute the valid
and binding obligation of the Company, enforceable against the Company in
accordance with its terms, except that such enforcement may be subject to
bankruptcy, insolvency, reorganization, moratorium or other similar laws now
or
hereafter in effect relating to creditors’ rights and general principles of
equity.
Section
9: Indemnification
9.1 Indemnification.
Consultant shall indemnify the Company and the Affiliates and their respective
directors, officers, managers, employees, general and limited partners,
stockholders, agents, affiliates, attorneys, successors and assigns
(collectively, the "Indemnified Parties") from and against any and all third
party claims, losses, damages, liabilities and costs (including legal and other
professional fees and expenses), joint or several, to which such Indemnified
Parties may become subject relating to or arising out of Consultant's actual
breach of his obligations under this Restated Agreement. Consultant shall
reimburse the Indemnified Parties for all expenses (including legal and other
professional fees and expenses) incurred in connection with the investigation,
preparation or defense of any pending or threatened claim or any action or
proceeding arising therefrom, whether or not any of the Indemnified Parties
is a
party to such claim or action.
Section
10: Miscellaneous
10.1. Assignment.
This
Restated Agreement and the Services to be provided hereunder may not be assigned
or otherwise transferred by Consultant, or by operation of law, without the
prior written consent of the Company. The Company may assign or transfer this
Restated Agreement to any Affiliate, without the consent of Consultant. The
Company’s assignment of this Restated Agreement to any Affiliate shall in no way
affect Consultant’s obligations under this Restated Agreement.
10.2
Waiver
and Amendments.
No
waiver, amendment or modification of any provision of this Restated Agreement
shall be effective unless consented to by both parties in writing. No failure
or
delay by either party in exercising any right, power or remedy under this
Restated Agreement shall operate as a waiver of any such right, power or remedy.
No waiver of any breach of any covenant or provision contained herein shall
be
deemed a waiver of any preceding or succeeding breach thereof or of any other
covenant or provision. No extension of time for performance of any obligation
or
act shall be deemed an extension of the time for performance of any other
obligation or act.
10.3
Notices.
Any
notice or communication provided for or required by this Restated Agreement
to
be in writing shall be: (a) hand delivered, (b) sent by certified mail with
full
postage, or (c) sent by overnight courier service with proof of delivery. Any
notice so sent shall be deemed received upon the earlier of an actual receipt
or
three business days after proper posting. The addresses of the parties shall
be
as indicated below, but the parties may change their notice addresses by giving
written notice of such change to the other party at its current address in
accordance with this Section.
9
|
If
to Consultant:
|
Xxxxxx
X. Xxxxxxx
|
|
000
Xxxxxxxx Xxxxx
|
|
|
Xxxx
Xxxxxx, Xxxxxxxxxx 00000
|
|
|
If
to Company:
|
Penn
Octane Corporation
|
|
Rio
Vista Energy Partners L.P.
|
|
|
Attn:
Chief Executive Officer
|
|
|
000
Xxxxxxx Xxxx, Xxxxx 0000
|
|
|
Xxxxxxx,
Xxxxx 00000
|
|
|
With
a copy to:
|
|
|
Xxxxx
X. Xxxxx, Esq.
|
|
|
Xxx
Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
|
|
|
Xxx
Xxxxxxxxx, Xxxxxxxxxx 00000
|
10.4
Professional
Fees.
In the
event of the bringing of any action, suit, or arbitration by a party hereto
against another party hereunder by reason of any breach of any of the covenants,
agreements, or provisions arising out of this Restated Agreement, the prevailing
party shall be entitled to recover all costs and expenses of that action, suit,
or arbitration, at trial, in arbitration, or on appeal, and in collection
therewith, including but not limited to, reasonable attorneys' fees, accounting,
and other professional fees resulting therefrom.
10.5
Legal
and Equitable Remedies.
Due
to
the personal and unique nature of Consultant’s services pursuant to this
Restated Agreement, and because Consultant shall become acquainted with and
have
access to the Company’s proprietary information, the Company shall have the
right to enforce this Restated Agreement and any of its provisions by
injunction, specific performance or other equitable relief, without bond, and
without prejudice to any other rights and remedies that the Company may
otherwise have to enforce this Restated Agreement.
10.6
Arbitration.
Any
controversy or claim arising out of or relating to this Restated Agreement
(other than claims for preliminary injunctive relief or other prejudgment or
equitable remedies) shall be settled by binding arbitration in Houston, Texas
or
Los Angeles, California (at the election of the party commencing the action)
in
accordance with the Commercial Rules of the American Arbitration Association
then in effect, and judgment upon an award rendered in such arbitration may
be
entered in any court having jurisdiction thereof.
BOTH
PARTIES HAVE READ AND UNDERSTAND THIS SECTION
10.6,
WHICH
DISCUSSES ARBITRATION. THE PARTIES UNDERSTAND THAT BY SIGNING THIS AGREEMENT,
THEY AGREE TO SUBMIT ANY FUTURE CLAIMS ARISING OUT OF RELATING TO, OR IN
CONNECTION WITH THIS AGREEMENT, OR THE INTERPRETATION, VALIDITY, CONSTRUCTION,
PERFORMANCE, BREACH, OR TERMINATION THEREOF TO BINDING ARBITRATION, AND THAT
THIS ARBITRATION CLAUSE CONSTITUTES A WAIVER OF EACH PARTIES' RIGHT TO A JURY
TRIAL AND RELATES TO THE RESOLUTION OF ALL DISPUTES RELATING TO ALL ASPECTS
OF
THE RELATIONSHIP BETWEEN CONSULTANT AND THE COMPANY.
10
10.7
Severability.
Should
any one or more of the provisions of this Restated Agreement be determined
to be
illegal or unenforceable, all other provisions of the Agreement shall be given
effect separately from those provisions of this Restated Agreement so determined
and the other provisions shall not be affected by the illegality or
unenforceability.
10.8
Representation
by Counsel; Interpretation.
Each
party to this Restated Agreement acknowledges that such party has caused this
Restated Agreement to be reviewed and/or had the opportunity to have it approved
by legal counsel of such party’s own choice. Consultant acknowledges and agrees
that the Law Offices of Xxxxx Xxxxx has represented the Company, not Consultant,
in connection with the preparation and execution of this Restated Agreement
and
that the Law Offices of Xxxxx Xxxxx may continue to represent the Company in
matters related to this Restated Agreement and otherwise. Consultant has been
advised to obtain independent legal counsel in such connection. The Company
acknowledges and agrees that the Law Offices of Xxxxx Xxxxx has represented
and
may continue to represent Consultant in matters unrelated to this Restated
Agreement. The parties hereby waive any claim of conflict of interest based
on
the foregoing. The parties have negotiated the provisions of this Restated
Agreement, and any presumption that an ambiguity contained in this Restated
Agreement shall be construed against the party that caused this Restated
Agreement to be drafted shall not apply to the interpretation of this Restated
Agreement.
10.9
Governing
Law and Venue.
This
Restated Agreement has been entered into in the State of Texas and shall be
governed by, interpreted under, and construed and enforced in accordance with
the internal laws of Texas. All claims, arbitrations and lawsuits in connection
with this Restated Agreement must be brought in Xxxxxx County, Texas or Los
Angeles County, California. Consultant and Company hereby agree to this
jurisdiction and venue.
10.10 Entire
Agreement.
This
Restated Agreement constitutes the entire agreement between the parties hereto
with respect to the subject matter hereof and supersedes any and all prior
or
contemporaneous agreements, understandings, discussions, and/or commitments
of
any kind with respect to the subject matter hereof, including without limitation
the Consulting Agreement between the parties dated on or about July 19, 2005.
This Restated Agreement may not be amended or supplemented, nor may any right
hereunder be waived, except in writing signed by each of the
parties.
10.11 Severability.
If any
provision of this Restated Agreement is declared void, or otherwise
unenforceable, such provision shall be deemed to be severed from this Restated
Agreement, which shall otherwise remain in full force and effect.
10.12 Survival.
The
provisions of Sections
1.3, 2.1, 4, 5, 6, 9, and 10
shall
survive any termination or expiration of this Restated Agreement.
10.13 Further
Assurances.
The
parties shall, from time to time, promptly execute and deliver such further
instruments, documents and papers and perform such further acts as may be
necessary or proper to carry out and effect the terms of this Restated
Agreement.
10.14 Counterparts.
This
agreement may be executed in one or more counterparts, each of which shall
be
deemed an original and all of which together shall constitute one and the same
instrument. Facsimile signatures shall have the same legal effect as original
signatures.
11
IN
WITNESS WHEREOF,
the
parties have executed this Consulting Agreement as of the date first written
above.
|
"The
Company"
|
"Consultant"
|
|||
|
PENN
OCTANE CORPORATION
|
||||
|
By:
|
/s/
Xxxxxxx X. Xxxxxx
|
/s/
Xxxxxx
X. Xxxxxxx
|
||
|
Xxxxxxx
X. Xxxxxx,
|
Xxxxxx
X. Xxxxxxx
|
|||
|
Chief
Executive Officer
|
||||
|
RIO
VISTA ENERGY PARTNERS L.P.
|
||||
|
By:
|
Rio
Vista GP LLC, General Partner
|
|||
|
By:
|
/s/
Xxxxxxx X. Xxxxxx
|
|||
|
Xxxxxxx
X. Xxxxxx,
|
||||
|
Chief
Executive Officer
|
||||
12
Schedule
1
|
Month
|
Nominal
LPG Volume
|
|
|
July
2005
|
3,500,000 gallons
|
|
|
August
2005
|
3,500,000 gallons
|
|
|
September
2005
|
6,000,000 gallons
|
|
|
October
2005
|
9,000,000 gallons
|
|
|
November
2005
|
13,000,000
gallons
|
|
|
December
2005
|
13,000,000
gallons
|
|
|
January
2006
|
13,000,000
gallons
|
|
|
February
2006
|
13,000,000
gallons
|
|
|
March
2006
|
9,000,000 gallons
|
|
