As filed with the Securities and Exchange Commission on August 28, 1997
Registration No. 333-_____
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_________________________
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
_________________________
TransMontaigne Oil Company
(Exact name of registrant as specified in its charter)
_________________________
Delaware 06-1052062
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
370-17th Street, Suite 2750
Denver, Colorado 80202
(303) 626-8200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
TransMontaigne Oil Company Equity Incentive Plan
(Full title of plan)
__________________
Frederick W. Boutin with a copy to:
Senior Vice President Nick Nimmo, Esq.
and Secretary Holme Roberts & Owen LLP
370 17th Street, Suite 2750 1700 17th Street, Suite 4200
Denver, Colorado 80202 Denver, Colorado 80203
(303) 626-8200 (303) 861-7000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
_________________________
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Proposed
maximum maximum Amount of
Amount to be offering price per aggregate registration
Title of securities to be registered registered (1) Share(1) offering price (1) fee
<S> <C> <C> <C> <C>
Common Stock ($.01 par value) 1,800,000 shares $16.50 $29,700,000 $9,000
</TABLE>
(1) Calculated pursuant to Rule 457(h).
1
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The following documents filed or to be filed by TransMontaigne Oil
Company (the "Company") with theSecurities and Exchange Commission (the
"Commission") are hereby incorporated or deemed to be incorporated in this
Registration Statement by reference:
(a) The Company's Annual Report on Form 10-K for the year ended
April 30, 1997, file no. 1-11763.
(b) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form S-4 (No. 333-03195), filed with the
Commission on May 10, 1996.
(c) The consolidated financial statements of Lion Oil Company as
of April 30, 1996 and 1995 and for each of the years in the three-year period
ended April 30, 1996, included in the Company's Annual Report on Form 10-K for
the year ended April 30, 1996.
(d) All other documents filed by the Company pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this
Prospectus and prior to the termination of the offering of Common Stock.
All documents subsequently filed by the Company with the Commission
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act
of 1934, as amended, subsequent to the date of this Registration Statement and
prior to the filing of a post- effective amendment to this Registration
Statement indicating that all securities offered under the Registration
Statement have been sold, or deregistering all securities then remaining unsold,
shall be deemed to be incorporated in this Registration Statement by reference
and to be a part hereof from the date of filing such documents.
6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company's Bylaws and Restated Certificate of Incorporation provide
that the Company shall, to the fullest extent permitted by the General
Corporation Law of the State of Delaware, as amended from time to time,
indemnify all directors and officers of the Company. Section 145 of the Delawar
General Corporation Law provides in part that a corporation shall have the power
to indemnify any person 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 as a director, officer,
partner or trustee of, or in any similar managerial or fiduciary position of, or
as an employee or agent of another corporation or other enterprise, against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
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 his conduct was unlawful. Similar indemnity is
authorized for such persons against expenses (including attorneys' fees)
actually and reasonably incurred in defense or settlement of any threatened,
pending or completed action or suit by or in the right of the corporation, if
such person acted in good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of the corporation, and provided further
that (unless a court of competent jurisdiction otherwise provides) such person
shall not have been adjudged liable to the corporation. Any such
indemnification may be made only as authorized in each specific case upon a
determination by the stockholders or disinterested directors that
indemnification is proper because the indemnitee has met the applicable standard
of conduct.
Additionally, the Company's Restated Certificate of Incorporation
contains a provision eliminating the personal liability of directors to the
Company or its stockholders for monetary damages arising out of a breach of
fiduciary duty. Under Delaware law, this provision eliminates the liability of
a director for breach of fiduciary duty but does not eliminate the personal
liability of any director (i) for a breach of the duty of loyalty to the
Company or to its stockholders; (ii) for acts or omissions by the director not
in good faith or which involve intentional misconduct or a knowing violation of
law; (iii) for liability arising under Section 174 of the General Corporation
Law (relating to the declaration of dividends and the purchase or redemption of
shares in violation of the General Corporation Law); or (iv) for any transaction
from which the director derived an improper personal benefit.
2
8. EXHIBITS.
4.1 Restated Certificate of Incorporation of the Company.(1)
4.2 Bylaws of the Company.(2)
5.1 Opinion and Consent of Holme Roberts & Owen LLP.
10.1 TransMontaigne Oil Company Equity Incentive Plan.(3)
23.1 Consent of Counsel. See Exhibit 5.1
23.2 Consent of KPMG Peat Marwick LLP
23.3 Consent of KPMG Peat Marwick LLP
24. Power of Attorney. See the signature page hereof.
(1) Filed previously as an Exhibit to the Company's Annual Report on Form 10-K
(No. 1-11763) for the year ended April 30, 1996, and incorporated herein by
reference.
(2) Filed previously as an Exhibit to the Company's Registration Statement on
Form S-4 (No. 0-13201) dated January 22, 1991, and incorporated herein by
reference.
(3) Filed previously as an appendix to the Company's Proxy Statement filed in
connection with the July 10, 1997, Annual Meeting of Shareholders, and
incorporated herein by reference.
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 to include any material information
with respect to the plan of distribution not previously disclosed in the
Registration Statement, or any material change to such information in the
Registration Statement; (2) that, for the purpose of determining any liability
under the Securities Act of 1933, 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; and (3) to remove from registration by
means of a post-effective amendment any of the securities which remain unsold at
the termination of the offering.
B. The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933, each
filing of the Company's annual report pursuant to Section 13(a) or Section 15(d)
of the Securities Exchange Act of 1934 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.
C. Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Company pursuant to the foregoing provisions, or otherwise, the
Company has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the Company
of expenses incurred or paid by a director, officer or controlling person of the
Company in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or 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 Act and will be governed by the final
adjudication of such issue.
3
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
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 Denver, State of Colorado, on the 28th day of August,
1997.
TransMontaigne Oil Company
By: /s/ Frederick W. Boutin
Frederick W. Boutin
Senior Vice President
and Secretary
Each person whose signature appears below does hereby make, constitute
and appoint each of Richard E. Gathright, Harold R. Logan, Jr. and William A.
Sikora as such person's true and lawful attorney-in-fact and agent, with full
power of substitution, resubstitution and revocation to execute, deliver and
file with the Securities and Exchange Commission, for and on such person's
behalf, and in any and all capacities, this Registration Statement on Form S-8,
and any and all amendments (including post-effective amendments) thereto, with
all exhibits thereto and other documents in connection therewith, granting unto
said attorney-in-fact and agent full power and authority to do and perform each
and every act and thing requisite and necessary to be done as fully to all
intents and purposes as such person might or could do in person, hereby
ratifying and confirming all that said attorney-in-fact and agent or such
person's substitute or substitutes may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities indicated on August 28, 1997.
<TABLE>
<CAPTION>
Name and Signature Title
<S> <C>
/s/Cortlandt S. Dietler Chairman and Chief Executive Officer
Cortlandt S. Dietler (Principal Executive Officer)
/s/Richard E. Gathright President, Chief Operating Officer and Director
Richard E. Gathright (Principal Operating Officer)
/s/Harold R. Logan, Jr. Executive Vice President/Finance,
Harold R. Logan, Jr. Treasurer and Director
(Principal Financial Officer)
/s/Rodney S. Pless Vice President, Chief Accounting Officer and
Rodney S. Pless Controller
(Principal Accounting Officer)
/s/John A. Hill Director
John A. Hill
/s/Bryan H. Lawrence Director
Bryan H. Lawrence
/s/William E. Macaulay Director
William E. Macaulay
4
/s/Edwin H. Morgens Director
Edwin H. Morgens
</TABLE>
5
EXHIBIT INDEX
Exhibit
No. Description
4.1 Restated Certificate of Incorporation of the Company.(1)
4.2 Bylaws of the Company.(2)
5.1 Opinion and Consent of Holme Roberts & Owen LLP.
10.1 TransMontaigne Oil Company Equity Incentive Plan.(3)
23.1 Consent of Counsel. See Exhibit 5.1
23.2 Consent of KPMG Peat Marwick LLP
23.3 Consent of KPMG Peat Marwick LLP
24. Power of Attorney. See the signature page hereof.
(1) Filed previously as an Exhibit to the Company's Annual Report on Form 10-K
(No. 1-11763) for the year ended April 30, 1996, and incorporated herein by
reference.
(2) Filed previously as an Exhibit to the Company's Registration Statement on
Form S-4 (No. 0-13201) dated January 22, 1991, and incorporated herein by
reference.
(3) Filed previously as an appendix to the Company's Proxy Statement filed in
connection with the July 10, 1997, Annual Meeting of Shareholders, and
incorporated herein by reference.
6
Exhibit 5.1 OPINION AND CONSENT OF HRO
[LETTERHEAD OF HOLME ROBERTS & OWEN LLP APPEARS HERE]
TransMontaigne Oil Company
370 17th Street, Suite 900
Denver, CO 80202
Re: Sale of Shares of Common Stock Pursuant to
Registration Statement on Form S-8
Gentlemen:
We have acted as counsel to TransMontaigne Oil Company (the "Company") in
connection with the registration by the Company of 1,800,000 shares of common
stock, $.01 par value per share (the "Shares") described in the Registration
Statement on Form S-8 of the Company, being filed with the Securities and
Exchange Commission concurrently herewith. In such connection we have examined
certain corporate records and proceedings of the Company including actions taken
by the Company's Board of Directors in respect of the authorization and
issuance of the Shares, and such other matters as we deemed appropriate.
Based upon the foregoing, we are of the opinion that the Shares have been
duly authorized and, when issued and sold as contemplated by the Registration
Statement and in accordance with the employee benefit plans covered thereby,
will be legally issued, fully paid and non- assessable shares of capital stock
of the Company.
We hereby consent to be named in the Registration Statement and in the
Prospectus constituting a part thereof, as amended from time to time, as the
attorneys who will pass upon legal matters in connection with the issuance of
the Shares, and to the filing of this Opinion as an Exhibit to the aforesaid
Registration Statement. In giving this consent, we do not thereby admit that
we are in the category of persons whose consent is required under Section 7 of
the Securities Act of 1933 or the rules of the Securities and Exchange
Commission.
Very truly yours,
/s/ HOLME ROBERTS & OWEN LLP
Exhibit 23.2
CONSENT OF INDEPENDENT AUDITORS
_______________________________________
To the Board of Directors and Stockholders
TransMontaigne Oil Company:
We consent to incorporation by reference in the registration statement on Form
S-8 relating to the TransMontaigne Oil Company Equity Incentive Plan of our
report dated June 19, 1997, relating to the consolidated balance sheets of
TransMontaigne Oil Company and subsidiaries as of April 30, 1997 and 1996, and
the related consolidated statements of operations, stockholders' equity, and
cash flows for each of the years in the three-year period ended April 30, 1997,
which report appears in the April 30, 1997 annual report on Form 10-K of
TransMontaigne Oil Company.
KPMG Peat Marwick LLP
Denver, Colorado
August 28, 1997
Exhibit 23.3
CONSENT OF INDEPENDENT AUDITORS
______________________________________
To the Board of Directors and Stockholders
TransMontaigne Oil Company:
We consent to incorporation by reference in the registration statement on Form
S-8 of TransMontaigne Oil Company relating to the TransMontaigne Oil Company
Equity Incentive Plan of our report dated July 19, 1996, relating to the
consolidated balance sheets of Lion Oil Company and subsidiary as of April 30,
1996 and 1995, and the related consolidated statements of earnings,
stockholders' equity, and cash flows for each of the years in the three year
period ended April 30, 1996, which report appears in the April 30, 1996 annual
report on Form 10-K of TransMontaigne Oil Company.
KPMG Peat Marwick LLP
Jackson, Mississippi
August 28, 1997
