As filed with the Securities and Exchange Commission on November 4, 1997
Registration Statement No. 333-_____
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
PENN OCTANE CORPORATION
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(Exact name of registrant as specified in its charter)
DELAWARE 52-1790357
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(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
900 VETERANS BOULEVARD, SUITE 240
REDWOOD CITY, CALIFORNIA 94063
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(Address of Principal Executive Offices)
PENN OCTANE CORPORATION
1997 STOCK AWARD PLAN
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(Full Title of the Plan)
PENN OCTANE CORPORATION
900 VETERANS BOULEVARD, SUITE 240
REDWOOD CITY, CALIFORNIA 94063
ATTENTION: JEROME B. RICHTER
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(Name and Address of Agent for Service)
(415) 368-1501
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(Telephone Number, Including Area Code, of Agent for Service)
Copy to:
John F. Watkins, Esq.
Coudert Brothers
1114 Avenue of the Americas
New York, New York 10036
(212) 626-4400
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Amount Maximum Maximum
Title of Securities to be Offering Price Aggregate Amount of
to be Registered Registered Per Unit(1) Offering Price(1) Registration Fee
<S> <C> <C> <C> <C>
Common Stock, $.01 par value 150,000 $ 5.844 $ 876,600 $ 265.64
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<FN>
(1) Estimated solely for the purpose of calculating the registration fee in accordance
with Rule 457(c) of the Securities Act of 1933, as amended, based on the average of the high and
low prices per share of Common Stock of the Registrant as reported on the NASDAQ SmallCap Market
on September 28, 1997.
</TABLE>
<PAGE>
II-2
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
Penn Octane Corporation (the "Company") hereby incorporates by reference
in this Registration Statement the following:
(a) The Company's Annual Report on Form 10-KSB for the fiscal year
ended July 31, 1996.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), since the
end of the fiscal year covered by the Annual Report referred to in (a) above.
(c) The description of the Company's Common Stock, $.01 par value per
share (the "Common Stock") contained in the Company's Registration Statement
on Form 8-A (Registration Statement No. 0-24394), filed with the Securities
Exchange Commission (the "Commission") pursuant to the Exchange Act.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the filing of a
post-effective amendment which indicates that all securities offered hereby
have been sold or which deregisters all securities then remaining unsold,
shall be deemed to be incorporated by reference in this Registration Statement
and to be part hereof from the respective dates of filing of such documents.
Any statement contained in a document incorporated by reference herein, or
contained in this Registration Statement, shall be deemed to be modified or
superseded for purposes of this Registration Statement to the extent that a
statement contained herein or in any document subsequently filed which is
incorporated by reference herein modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law authorizes, inter
alia, a corporation generally to indemnify any person ("indemnitee") who was
or is a party or is threatened to be made a party to any threatened, pending
or completed action, suit or proceeding (other than an action by or in the
right of the corporation) by reason of the fact that such person is or was a
director, officer, employee or agent of the corporation, or is or was serving
at the request of the corporation, in a similar position with another
corporation or entity, against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably
incurred by such person in connection with such action, suit or proceeding if
such person acted in good faith and in a manner such person reasonably
believed to be in or not opposed to the best interests of the corporation and,
with respect to any criminal action or proceeding, had no reasonable cause to
believe such person conduct was unlawful. With respect to actions or suits by
or in the right of the corporation, however, an indemnitee who acted in good
faith and in a manner such person reasonably believed to be in or not opposed
to the best interests of the corporation is generally limited to attorneys'
fees and other expenses, and no indemnification shall be made if such person
is adjudged liable to the corporation unless and only to the extent that a
court of competent jurisdiction determines that indemnification is
appropriate. Section 145 further provides that any indemnification shall be
made by the corporation only as authorized in each specific case upon a
determination by the (i) stockholders, (ii) board of directors by a majority
vote of directors who were not parties to such action, suit or proceeding or
(iii) independent counsel that indemnification of the indemnitee is proper
because he has met the applicable standard of conduct. Section 145 provides
that indemnification pursuant to its provisions is not exclusive of other
rights of indemnification to which a person may be entitled under any by-law,
agreement, vote of stockholders or disinterested directors or otherwise.
The Company's Amended and Restated By-Laws provide that the Company will
indemnify, to the full extent permitted by law, any person or such person's
heirs, distributees, next of kin, successors, appointees, executors,
administrators, legal representatives and assigns who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative,
by reason of the fact that such person is or was a director, officer, employee
or agent of the Company, or is or was serving at the request of the Company as
a director, officer, employee or agent of another corporation, partnership,
joint venture, trust, or other enterprise, domestic or foreign, against
expenses, attorneys' fees, court costs, judgments, fines, amounts paid in
settlement and other losses actually and reasonably incurred by such person in
connection with such action, suit or proceeding.
The Company's Restated Certificate of Incorporation, as amended, also
provides that no director of the Company will be personally liable to the
Company or its stockholders for monetary damages for any breach of fiduciary
duty by such a director as a director other than for: (i) any breach of the
director's duty of loyalty to the Company or its stockholders, (ii) acts or
omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) liability under Section 174 of the General
Corporation Law of Delaware, or (iv) any transaction from which such director
derived an improper personal benefit.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
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<C> <S>
4.1 Restated Certificate of Incorporation of Penn Octane Corporation, as amended (incorporated by
reference to Exhibit 3.2 of the Company's Form 10-QSB Quarterly Report for the quarter ended April 30,
1997).
4.2 Amended and Restated By-Laws of Penn Octane Corporation (incorporated by reference to Exhibit 3.1
of the Company's Form 10-QSB Quarterly Report for the quarter ended April 30, 1997).
5 Opinion of Coudert Brothers.
23.1 Consent of Burton McCumber & Prichard, L.L.P.
23.2 The consent of Coudert Brothers is incorporated by reference to Exhibit 5 of this Registration
Statement.
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ITEM 9. UNDERTAKINGS
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
(i) to include any prospectus required by section 10(a)(3)
of the Securities Act of 1933, as amended (the "Securities Act");
(ii) to reflect in the prospectus any facts or events
arising after the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in the
Registration Statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range may
be reflected in the form of prospectus filed with the Commission pursuant to
Rule 424(b) if, in the aggregate, the changes in volume and price represent no
more than 20 percent change in the maximum aggregate offering price set forth
in the "Calculation of Registration Fee" table in the effective Registration
Statement; and
(iii) to include any additional or changed material
information with respect to the plan of distribution not previously disclosed
in the Registration Statement;
<PAGE>
provided, however, that clauses (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
clauses is contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
Registration Statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
The undersigned Registrant hereby undertakes that, for the purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to section 13(a) or section 15(d) of the
Exchange Act (and where applicable, each filing of an employee benefit plan's
annual report pursuant to section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall be deemed to be
a new Registration Statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions or otherwise, the Registrant
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities
being registered, the Registrant will, unless in the opinion of its counsel
the matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed
by the final adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Redwood City, State of California,
on this day of September, 1997.
PENN OCTANE CORPORATION
By: /s/ Jerome B. Richter
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Jerome B. Richter
Chairman, President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
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<CAPTION>
SIGNATURE TITLE DATE
- ------------------------ ------------------------------ --------------------
<C> <S> <C>
/s/ Jerome B. Richter Jerome B. Richter October 29 , 1997
Chairman, President and Chief
Executive Officer
/s/ Ian T. Bothwell Ian T. Bothwell October 29 , 1997
Vice President, Treasurer,
Assistant Secretary,
Chief Financial Officer and
Principal Accounting Officer
/s/ Jorge R. Bracamontes Jorge R. Bracamontes October 29 , 1997
Executive Vice President and
Secretary
/s/ John P. Holmes John P. Holmes October 29 , 1997
Director
/s/ Kenneth G. Oberman Kenneth G. Oberman October 29 , 1997
Director
/s/ Stewart J. Paperin Stewart J. Paperin
Director October 29 , 1997
/s/ John H. Robinson John H. Robinson October 29 , 1997
Director
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<PAGE>
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EXHIBIT INDEX
Exhibit Page
No. Description No.
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<C> <S> <C>
4.1 Restated Certificate of Incorporation of Penn Octane Corporation, as amended
(incorporated by reference to Exhibit 3.2 of the Company's Form 10-QSB Quarterly Report
for the quarter ended April 30, 1997).
4.2 Amended and Restated By-Laws of Penn Octane Corporation (incorporated by reference to
Exhibit 3.1 of the Company's Form 10-QSB Quarterly Report for the quarter ended April 30,
1997).
5 Opinion of Coudert Brothers. II-6
23.1 Consent of Burton McCumber & Prichard, L.L.P. II-7
23.2 The consent of Coudert Brothers is incorporated by reference to Exhibit 5 of this
Registration Statement.
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<PAGE>
Exhibit 5
[Letterhead of Coudert Brothers]
October 29, 1997
Penn Octane Corporation
900 Veterans Boulevard
Redwood City, California 94063
Dear Gentlemen:
We are rendering our opinion with respect to the legality of the
150,000 shares of Common Stock, par value of $.01 per share (the "Shares"), of
Penn Octane Corporation, a Delaware corporation (the "Company"), being
registered under the Securities Act of 1933 on the Company's Registration
Statement on Form S-8 (the "Registration Statement"). The Shares constitute
additional shares of Common Stock which have been reserved for issuance upon
the exercise of options granted or to be granted under the Company's 1997
Stock Award Plan (the "Plan").
As counsel for the Company, we are familiar with the corporate
proceedings taken by the Company in connection with the authorization for
issuance of the Shares, and we have examined such corporate records of the
Company and other documents as we deem necessary for purposes of the opinion
herein expressed.
Based on the foregoing, and having regard for the legal
considerations we deem relevant, we are of the opinion that the Shares, upon
issuance in accordance with the terms of the Plan, will constitute legally and
validly issued, fully paid and nonassessable shares of the Common Stock of the
Company.
We hereby consent to the inclusion of this opinion as Exhibit 5 to
the Registration Statement.
Very truly yours,
Coudert Brothers
<PAGE>
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We have issued our report dated September 27, 1996 (except for Note
P as to which the date is October 10, 1996), accompanying the financial
statements of Penn Octane Corporation appearing on page 14 of Penn Octane
Corporation's Annual Report on Form 10-KSB for the fiscal year ended July 31,
1996 incorporated by reference in this Registration Statement. We consent to
the incorporation by reference in the Registration Statement of the
aforementioned report.
BURTON MCCUMBER & PRICHARD, L.L.P.
Brownsville, Texas
October 29, 1997
