As filed with the Securities and Exchange Commission on March 20, 1997
File No.: 333-______
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
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 (I.R.S. Employer
of incorporation or organization) Identification No.)
370 17th Street, Suite 2750
Denver, CO 80202
(303) 626-8200
(Address, including zip code, and telephone number, including area
code, of registrant's principal executive offices)
Harold R. Logan, Jr., Copies of all communications,
Executive Vice President/Finance including all communications sent
TransMontaigne Oil Company to the agent for service, should
370 17th Street, Suite 2750 be sent to:
Denver, CO 80202
(303) 626-8200 Nick Nimmo, Esq.
(Name, address, including zip Holme Roberts & Owen LLP
code, and telephone number, 1700 Lincoln, Suite 4100
including area Denver, CO 80203
code, of agent for service) Tel. (303) 861-7000
Fax (303) 866-0200
Approximate date of commencement of proposed sale to the public:
From time to time after the effective date of this Registration
Statement.
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans, please
check the following box. [ ]
If any of the securities being registered on this Form are being
offered on a delayed or continuous basis pursuant to Rule 415 under
the Securities Act of 1933, other than securities offered only in
connection with dividend or interest reinvestment plans, check the
following box. [ x ]
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please
check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for
the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering [ ]
If delivery of the prospectus is expected to be made pursuant to
Rule 434, please check the following box [ ]
CALCULATION OF REGISTRATION FEE
Title of each class of
securities to be registered Common Stock, $.01 par value
Amount to be registered 100,000 shares
Proposed maximum offering
price per share(1) $16.4375
Proposed maximum aggregate
offering price(1) $1,643,750
Amount of registration fee $498.11
(1) Estimated pursuant to Rule 457(c) solely for the purpose of
calculating the registration fee.
The Registrant hereby amends this Registration Statement on such
date or dates as may be necessary to delay its effective date until
the Registrant shall file a further amendment which specifically
states that this Registration Statement shall thereafter become
effective in accordance with Section 8(a) of the Securities Act of
1933 or until the Registration Statement shall become effective on
such date as the Commission, acting pursuant to said Section 8(a), may
determine.
***************************************************************************
* *
* Information contained herein is subject to completion or amendment. A *
* Registration Statement relating to these securities has been filed *
* with the Securities and Exchange Commission. These securities may not *
* be sold nor may offers to buy be accepted prior to the time the *
* Registration Statement becomes effective. This Prospectus shall not *
* constitute an offer to sell or the solicitation of an offer to buy *
* nor shall there be any sale of these securities in any State in which *
* such offer, solicitation or sale would be unlawful prior to *
* registration or qualification under the securities laws of any such *
* State. *
* *
***************************************************************************
SUBJECT TO COMPLETION, DATED MARCH 19, 1997
100,000 SHARES
TRANSMONTAIGNE OIL COMPANY
COMMON STOCK
All of the 100,000 shares (the "Shares") of the common stock
($.01 par value per share) (the "Common Stock") of TRANSMONTAIGNE OIL
COMPANY ("TransMontaigne") offered hereby are being sold by the
selling stockholders named herein (the "Selling Stockholders"). The
registration of the Shares does not necessarily mean that any of such
Shares will be offered or sold by the Selling Stockholders. The
Shares will be offered by the Selling Stockholders from time to time
(i) on the American Stock Exchange, where the Common Stock is listed,
or elsewhere, at fixed prices which may be changed, at market prices
prevailing at the time of offer and sale, at prices related to such
prevailing market prices or at negotiated prices and (ii) in
negotiated transactions, through the writing of options on the Shares,
or a combination of such methods of sale. The Selling Stockholders
may effect such transactions by offering and selling the Shares
directly or to or through securities broker-dealers, and such broker-dealers
may receive compensation in the form of discounts,
concessions, or commissions from the Selling Stockholders and/or the
purchasers of the Shares for whom such broker-dealers may act as agent
or to whom the Selling Stockholders may sell as principal, or both
(which compensation as to a particular broker-dealer might be in
excess of customary commissions). See "The Selling Stockholders."
All Shares offered hereby were issued by TransMontaigne to the
Selling Stockholders in transactions exempt from registration under
the Securities Act of 1933, as amended (the "Securities Act").
None of the proceeds from the sale of the Shares by the Selling
Stockholders will be received by TransMontaigne. TransMontaigne
intends to bear all expenses in connection with the registration and
sale of the Shares being offered by the Selling Stockholders other
than compensation payable to securities broker-dealers by the Selling
Stockholders and/or the purchasers of the Shares, any securities
broker-dealer expense allowances and fees and expenses of counsel (and
other advisers) to the Selling Stockholders and transfer taxes.
The Common Stock is listed on the American Stock Exchange under
the symbol "TMG." On March 18, 1997, the last reported sales price of
the Common Stock on the American Stock Exchange was $16.50 per share.
For a discussion of certain risks of an investment in the shares
of Common Stock offered hereby, see "Risk Factors" on pages 3-5.
________________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION NOR HAS THE SECURITIES AND EXCHANGE
COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION
TO THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this Prospectus is March 19, 1997
No persons have been authorized to give any information or to
make any representation not contained in this Prospectus in connection
with the offering of securities made hereby and, if given or made,
such information or representation must not be relied upon as having
been authorized by TransMontaigne or any other person. This
Prospectus does not constitute an offer to sell, or a solicitation of
an offer to buy, any securities by any person in any jurisdiction in
which it is unlawful to make any such offer or solicitation of an
offer. Neither the delivery of this Prospectus nor any distribution
of securities offered hereby shall, under any circumstances, create an
implication that there has been no change in the affairs of
TransMontaigne since the date hereof or that the information herein is
correct as of any time subsequent to its date.
AVAILABLE INFORMATION
TransMontaigne has filed with the Commission a registration
statement on Form S-3 (the "Registration Statement," which term
encompasses all amendments, exhibits, annexes and schedules thereto)
under the Securities Act with respect to the Common Stock offered
hereby. This Prospectus, which constitutes a part of the Registration
Statement, does not contain all the information set forth in the
Registration Statement, to which reference is hereby made. Statements
made in this Prospectus as to the contents of any contract, agreement
or other document referred to are not necessarily complete. With
respect to each such contract, agreement or other document filed as an
exhibit to the Registration Statement and the exhibits thereto,
reference is hereby made to the exhibit for a more complete
description of the matter involved, and each statement made herein
shall be deemed qualified in its entirety by such reference.
TransMontaigne is subject to the informational requirements of
the Securities Exchange Act of 1934 (the "Exchange Act") and in
accordance therewith files periodic reports, proxy and information
statements and other information with the Commission. The
Registration Statement filed by TransMontaigne with the Commission, as
well as such reports, proxy and information statements and other
information filed by TransMontaigne with the Commission, are available
at the web site that the Commission maintains at http://www.sec.gov
and can be inspected and copied at the public reference facilities
maintained by the Commission at Room 1024, Judiciary Plaza, 450 Fifth
Street, N.W., Washington, D.C. 20549, and at the regional offices of
the Commission located at 7 World Trade Center, Suite 1300, New York,
New York 10048, and at 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661. Copies of such material, when filed, may also be
obtained from the Public Reference Section of the Commission at 450
Fifth Street, N.W., Washington, D.C. 20549 at prescribed rates. The
Common Stock is listed on the American Stock Exchange and such
reports, proxy and information statements and other information
concerning TransMontaigne are available at the offices of the American
Stock Exchange, 86 Trinity Place, New York, NY 10006.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed or to be filed with the Commission
by TransMontaigne under the Exchange Act are herein incorporated by
reference:
(a) TransMontaigne's Annual Report on Form 10-K, File No.
001-11763, for the year ended April 30, 1996.
(b) TransMontaigne's Current Reports on Form 8-K, File No.
001-11763, as filed with the Commission on January 3, 1997 and June 6,
July 23 and December 11, 1996.
(c) TransMontaigne's Quarterly Report on Form 10-Q, File No.
001-11763, for the quarters ended July 31, and October 31, 1996 and
January 31, 1997.
(d) The description of TransMontaigne's Common Stock contained
in TransMontaigne's Registration Statement on Form S-2, File No.
333-18795.
(f) All other documents filed by TransMontaigne 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.
Any statement contained in a document incorporated, or deemed to
be incorporated, by reference herein or contained in this Prospectus
shall be deemed to be modified or superseded for purposes of this
Prospectus to the extent that a statement contained herein or in any
other subsequently filed document which also is, or is deemed to be,
incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of
this Prospectus.
TransMontaigne hereby undertakes to provide without charge to
each person, including any beneficial owner, to whom a Prospectus is
delivered, upon written or oral request of such person, a copy of any
and all of the documents that have been incorporated by reference in
this Prospectus (not including exhibits to the information that is
incorporated by reference unless such exhibits are specifically
incorporated by reference into such documents). Such request may be
directed to TransMontaigne, 370 17th Street, Suite 2750, Denver,
Colorado 80202, Attention: Harold R. Logan, Jr., Executive Vice
President/Finance, telephone (303) 626-8200.
THE COMPANY
TransMontaigne provides a broad range of integrated
transportation, terminaling, supply, distribution, gathering,
processing and marketing services to producers, refiners,
distributors, marketers and end-users of petroleum products, natural
gas and crude oil in the downstream sector of the petroleum industry.
TransMontaigne is a holding company which conducts its operations
through its subsidiaries primarily in the mid-continent and Rocky
Mountain regions of the United States. TransMontaigne does not
explore for, or produce, crude oil or natural gas, and it owns no
crude oil or natural gas reserves. The executive offices of
TransMontaigne, a Delaware corporation, are located at 370 17th
Street, Republic Plaza, Suite 2750, Denver, CO 80202, and its
telephone number is (303) 626-8200.
TransMontaigne's Common Stock is listed on the American Stock
Exchange under the symbol "TMG." On March 18, 1997, the closing sale
price of the Common Stock was $16.50 per share.
CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
The discussion in this Prospectus contains forward-looking
statements that involve risks and uncertainties. TransMontaigne's
actual results could differ materially from those discussed herein.
Factors that could cause or contribute to such differences include,
but are not limited to, those discussed in "Risk Factors,"as well as
those discussed elsewhere in this Prospectus. Statements contained in
this Prospectus that are not historical facts are forward-looking
statements that are subject to the safe harbor created by the Private
Securities Litigation Reform Act of 1995.
RISK FACTORS
In evaluating an investment in the Common Stock being offered
hereby, prospective investors should consider carefully, among other
things, the following risk factors.
Losses in Prior Years
Prior to present management's assumption of control of
TransMontaigne in April 1995, TransMontaigne incurred net losses for
several years, primarily due to the underutilization of its
facilities; realization of small or negative margins from bulk product
sales and wholesale marketing activities; and a lack of adequate
equity capital. This underutilization was primarily the result of
TransMontaigne's inability to finance capital improvements and the
inventory required to more fully utilize these facilities. The small
or negative margins from bulk product sales and wholesale marketing
activities were primarily the result of volatile market prices of
refined petroleum products and ineffective inventory management.
Volatile market prices of refined petroleum products during these
periods frequently resulted in sales of products at prices lower than
cost and caused losses from inventory write-downs. Although
TransMontaigne has recorded net earnings since April 1995, there can
be no assurance that such earnings will continue.
Sales Volume Volatility
Because TransMontaigne generates small net margins from product
sales, it is dependent on high sales volumes. The volumes of
TransMontaigne's sales can be impacted by the prices of refined
products, NGLs and natural gas, which are subject to significant
fluctuation depending upon numerous factors beyond TransMontaigne's
control, including the supply of and demand for gasoline and other
refined products, NGLs and natural gas, which are affected by, among
other things, changes in domestic and foreign economies, political
affairs, production levels, industry-wide inventory levels, the
availability of imports, the marketing of gasoline and other refined
products by competitors, the marketing of competitive fuels, the
impact of energy conservation efforts and the extent of government
regulation. Sales volumes are also affected by regional factors, such
as local market conditions, the availability of transportation systems
with adequate capacity, transportation costs, fluctuating and seasonal
demands for products, variations in weather patterns from year to year
and the operations of companies providing competing services.
Competition
TransMontaigne competes with other petroleum companies, national,
regional and local pipeline and terminaling companies and other
product suppliers and exchangers, as well as national, regional and
local natural gas gathering, processing and marketing companies, of
which many have more extensive facilities, control substantially
greater supplies of product and have significantly greater financial
resources than TransMontaigne.
Price and Credit Risks
While TransMontaigne attempts to reduce its exposure to the risk
of price volatility of oil and gas products by selectively hedging a
limited portion of its inventory through the purchase and sale of
futures and options contracts, some risks cannot be effectively
hedged, including price risks on products for which futures contracts
are not regularly traded, such as mid-continent conventional gasoline
(as opposed to New York Harbor reformulated unleaded gasoline, which
is regularly traded) and basis risks (the risk that price
differentials between delivery points, delivery periods or types of
products will change). TransMontaigne experiences basis risk in its
mid-continent operations because of the differences between
mid-continent spot refined product prices and futures contract prices
on the New York Mercantile Exchange (the "NYMEX"). TransMontaigne is
also exposed to credit risks in the event the other party to a futures
contract or bulk sale is unable to perform its contractual obligations
or a wholesale customer is unable to pay for products purchased.
TransMontaigne generally does not hedge the price risk on certain
portions of its inventory, consisting of pipeline fill, tank bottoms
and a minimum product supply required to satisfy exchange obligations.
TransMontaigne could be required to recognize a financial statement
loss on a portion of its inventory arising from market price
fluctuations in order to reflect lower of cost or market adjustments,
although such losses would have no impact on cash flow as long as
TransMontaigne continues to operate its facilities.
Dependence on Petroleum Supplies
A material decline in crude oil and refined products supplies
could adversely affect TransMontaigne's tariff revenues from pipeline
shipments of refined petroleum products, terminaling and storage fees
and margins from bulk and truck loading rack product sales.
TransMontaigne must continually connect new wells to its natural gas
gathering systems in order to maintain or increase throughput levels
to offset natural declines in dedicated volumes. The future level of
drilling will depend upon, among other factors, the prices for crude
oil and natural gas, the energy policy of the federal government and
the availability of foreign supplies, none of which are within
TransMontaigne's control. There is no assurance that TransMontaigne
will continue to be successful in replacing the supply of dedicated
natural gas reserves gathered and processed by its facilities.
Acquisition and Expansion Opportunities; Availability of Financing
In order for TransMontaigne to expand its business through the
selective purchase or construction of new or expanded facilities,
TransMontaigne is required to identify those opportunities and to
finance such activities using a combination of cash flow and equity
and debt financing. Any additional equity financing could be dilutive
to TransMontaigne's earnings and book value per share, and any debt
financing could significantly increase TransMontaigne's interest
expense and involve restrictive covenants. No assurance can be given
that TransMontaigne will identify appropriate opportunities for
expansion which will satisfy its target rates of return; that
financing on terms acceptable to TransMontaigne can be obtained; that
TransMontaigne will be successful in negotiating satisfactory terms of
acquisition; that TransMontaigne will be successful in integrating
acquired businesses into its organization; or that such acquisitions
will improve operating results. Oil and gas price volatility may make
it difficult to estimate the value and agree on the purchase price and
terms of acquisitions as well as to forecast the return on investment
in prospective projects.
Operational Hazards and Uninsured Risks
TransMontaigne's operations are subject to customary hazards and
unforeseen interruptions, including leaks, spills, fires and injury to
personnel. Operations also could be interrupted by natural disasters,
adverse weather or other events beyond TransMontaigne's control.
Furthermore, TransMontaigne transports, gathers and processes volatile
and toxic petroleum products such as gasoline, diesel oil, jet fuel
and NGLs and natural gas in certain areas of dense population.
Consistent with insurance coverage typically available to the
petroleum industry, TransMontaigne's insurance policies do not provide
coverage for losses or liabilities relating to pollution, except for
sudden and accidental occurrences. TransMontaigne carries insurance
for some, but not all, accidents and disruptions, and there can be no
assurance that such coverage, if any, will be adequate to cover all
losses.
Environmental, Safety and Other Regulatory Matters
The operations of TransMontaigne are subject to the jurisdiction
of local, state and federal governmental agencies with respect to
environmental, safety and other regulatory matters. TransMontaigne
could be adversely affected by environmental costs and liabilities
which may be incurred. Risks of substantial environmental costs and
liabilities are inherent in pipeline, terminaling, storage, gathering,
treating and processing operations, and there can be no assurance that
substantial environmental costs and liabilities will not be incurred.
TransMontaigne currently owns and operates, and has in the past owned
and operated, properties which have been used for transporting,
terminaling, storing and processing of petroleum products and
gathering, transportation and processing of natural gas. Hydrocarbons
or other pollutants or wastes may have been previously disposed of or
released on or under some of these properties. Moreover, it is
possible that other developments, such as increasingly strict
environmental laws, regulations and enforcement policies thereunder,
could result in substantial costs and liabilities.
Federal and state agencies also could require TransMontaigne to
alter its pipeline tariffs or impose additional safety requirements,
either of which could affect operating results. TransMontaigne cannot
predict how future regulation of interstate and intrastate petroleum
product pipelines may change and there can be no assurance that any
such future regulation will not have a material adverse effect on
TransMontaigne.
Concentrated Ownership
The officers and directors of TransMontaigne and the institutional
affiliates of certain directors control approximately 53.2% of the
outstanding Common Stock. As a result, they are able to control
TransMontaigne.
Limited Trading Market
Because there is a small public float in the Common Stock, sales
of small amounts of Common Stock in the public market could materially
adversely affect the market price for the Common Stock. Sales of
Common Stock, or the perception that such sales could occur, could
materially adversely affect prevailing market prices for the Common
Stock and may make it more difficult for TransMontaigne to sell shares
of Common Stock in the future at times and for prices that it deems
appropriate. TransMontaigne had 25,783,974 shares of Common Stock
outstanding as of March 11, 1997. The shares of Common Stock offered
hereby will be freely tradeable without restriction under the
Securities Act.
SELLING STOCKHOLDERS
The following table sets forth certain information regarding the
Selling Stockholders and the Shares offered by the Selling
Stockholders pursuant to this Prospectus. Since the Selling
Stockholders may sell all, some or none of their Shares, no estimate
can be made of the number of Shares that are to be offered hereby or
that will be owned by each Selling Stockholder upon completion of the
offering to which this Prospectus relates.
Name of Selling Stockholder Number of Shares
Beneficially Owned
Richard A. Bradsby II 1,000
Robert J. Clark 57,043
Sherry Draper-Anderson 1,000
Michael R. Henderson 5,000
Steven B. Huckaby 33,957
Nancy J. Rife 1,000
Michael J. Wozniak 1,000
Total 100,000
Robert J. Clark is President, Richard A. Bradsby II is Treasurer,
Michael R. Henderson is Vice President of Operations, Steven B.
Huckaby is Executive Vice President, Nancy J. Rife is Assistant
Secretary and Sherry Draper-Anderson is an employee of Bear Paw Energy
Inc., a wholly owned subsidiary of TransMontaigne.
PLAN OF DISTRIBUTION
The shares of Common Stock covered by this Prospectus may be
offered or sold from time to time by the Selling Stockholders, or by
pledgees, donees, transferees or other successors in interest. Such
sales may be made on the American Stock Exchange, in block trades,
pursuant to purchases by a broker or a dealer as principal, in private
transactions or otherwise, at prices then prevailing in the market or
at negotiated prices. TransMontaigne will not receive any of the
proceeds from sales by Selling Stockholders.
Any broker or dealer involved in the offer or sale of the shares
included herein may receive brokerage commissions or discounts. To
the knowledge of TransMontaigne, there is currently no agreement with
any broker or dealer respecting such transactions. Upon sale of such
shares, any or all of the Selling Stockholders or anyone effecting
sales on behalf of the Selling Stockholders may be deemed an
underwriter, as that term is defined in the Securities Act. None of
the Selling Stockholders believes he is an underwriter within the
meaning of the Securities Act. All expenses of the registration of
the Common Stock covered by this Prospectus are to be borne by
TransMontaigne.
LEGAL MATTERS
The validity of the issuance of the shares of Common Stock
described herein will be passed upon for TransMontaigne by Holme
Roberts & Owen LLP, Denver, Colorado.
EXPERTS
The consolidated financial statements of TransMontaigne Oil
Company as of April 30, 1996 and 1995 and for the years ended April
30, 1996 and 1995, the seven months ended April 30, 1994 and the year
ended September 30, 1993 have been incorporated by reference herein in
reliance upon the report of KPMG Peat Marwick LLP, independent
certified public accountants, incorporated by reference herein, and
upon the authority of such firm as experts in accounting and auditing.
The consolidated financial statements of Lion Oil Company and
Subsidiary as of April 30, 1996 and 1995, and the related consolidated
statements of earnings, stockholders' equity and cash flow for each of
the years in the three-year period ended April 30, 1996 included in
TransMontaigne Oil Company's annual report on Form 10-K for the year
ended April 30, 1996, have been incorporated by reference herein in
reliance upon the report of KPMG Peat Marwick LLP, independent
certified public accountants, incorporated by reference herein, and
upon the authority of said firm as experts in accounting and auditing.
The report of KPMG Peat Marwick LLP refers to a change in the method
of accounting for income taxes effective May 1, 1993.
The historical summaries of revenue and direct operating expenses
of the Grasslands Facilities for the nine months ended September 30,
1996 and the years ended December 31, 1995 and 1994 included in
TransMontaigne's Current Report on Form 8-K, as filed with the
Commission on January 3, 1997, have been incorporated by reference
herein in reliance upon the report of KPMG Peat Marwick LLP,
independent certified public accountants, incorporated by reference
herein, and upon the authority of such firm as experts in accounting
and auditing.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following table shows the estimated expenses to be incurred
in connection with the issuance of the securities being registered:
Registration Fee--SEC $ 498
Printing Expenses $ 500
Accountants' Fees and Expenses $1,000
Legal Fees and Expenses $5,000
Miscellaneous $ 500
Total Costs $7,498
All of the above expenses except the SEC registration fee are
estimated.
Item 15. Indemnification of Directors and Officers
Under Section 145 of the General Corporation Law of the State of
Delaware (the "DGCL"), a Delaware corporation has the power, under
specified circumstances, to indemnify its directors, officers,
employees and agents in connection with threatened, pending or
completed actions, suits or proceedings, whether civil, criminal,
administrative or investigative (other than an action by or in right
of the corporation), brought against them by reason of the fact that
they were or are such directors, officers, employees or agents,
against expenses, judgments, fines and amounts paid in settlement
actually and reasonably incurred in any such action, suit or
proceeding. Article IX of TransMontaigne's Charter and Article 6 of
TransMontaigne's Bylaws provide for indemnification of each person who
is or was or is threatened to be made a party to any threatened,
pending or completed civil, administrative, criminal or investigative
action, suit or proceeding (other than an action by or in right of the
corporation) because such person is or was a director or officer of
TransMontaigne or, while a director or officer of TransMontaigne, is
or was serving at the request of TransMontaigne as a director,
officer, partner, trustee, agent or employee of another corporation or
of a partnership, joint venture, trust association, partnership or
other enterprise, against expenses (including attorney's fees),
judgments, fines, and amounts paid in settlement, incurred by the
person in connection with such action, suit or proceeding, if the
person acted in good faith and in a manner that such person reasonably
believed to be in or not opposed to the best interest of
TransMontaigne, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe that his conduct was
unlawful.
TransMontaigne also maintains policies of directors and officers
liability insurance.
Section 102(b)(7) of the DGCL provides that a certificate of
incorporation may contain a provision eliminating or limiting the
personal liability of a director to the corporation or its
stockholders for monetary damages for breach of fiduciary duty as a
director, provided that such provision does not eliminate or limit the
liability of a director (i) for any breach of the director's duty of
loyalty to the corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or
a knowing violation of law, (iii) under Section 174 of the DGCL
(relating to liability for unauthorized acquisitions or redemptions
of, or dividends on, capital stock) or (iv) for any transaction from
which the director derived an improper personal benefit. Article VIII
of TransMontaigne's Charter contains such a provision.
Item 16. Exhibits and Financial Statement Schedules
3.1 Restated Articles of Incorporation and Certificate of Merger.
Incorporated by reference to TransMontaigne Oil Company Form 10-K
(Securities and Exchange Commission File No. 1-11763) for the
year ended April 30, 1996.
3.2 Amended and Restated By-Laws. Incorporated by reference to
TransMontaigne Oil Company Form S-2 (Securities and Exchange
Commission File No. 333-18795).
5.1 Form of opinion of Holme Roberts & Owen LLP regarding the
legality of the securities. FILED HEREWITH
21 Schedule of TransMontaigne's Subsidiaries. Incorporated by
reference to TransMontaigne Oil Company Form S-2 (Securities and
Exchange Commission File No. 333-18795).
23.1 Consent of KPMG Peat Marwick LLP. FILED HEREWITH
23.2 Consent of KPMG Peat Marwick LLP. FILED HEREWITH
23.3 Consent of KPMG Peat Marwick LLP. FILED HEREWITH
24 Powers of Attorney. See the signature page hereof.
Item 17. Undertakings
Insofar as indemnification for liabilities arising under the 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 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 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 Act and will be governed by the final adjudication of
such issue.
The undersigned Registrant hereby undertakes:
(a) 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 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;
and
(iii) 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;
provided, however, that paragraphs (a)(i) and (a)(ii) do not apply if
the Registration Statement is on Form S-3 or Form S-8, and the
information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the
Registrant pursuant to section 13 or section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the
Registration Statement.
(b) That for the purpose of determining any liability under the
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.
(c) 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.
(d) For the purposes of determining any liability under the Act,
the information omitted from the form of prospectus filed as a part of
this Registration Statement in reliance upon Rule 430A and contained
in a form of prospectus filed by the Registrant pursuant to Rule
424(b)(1) or (4) or 497(h) under the Act shall be deemed to be a part
of this Registration Statement as of the time it was declared
effective.
(e) For the purposes of determining any liability under the Act,
each post-effective amendment that contains a form of prospectus
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.
(f) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Act, each filing of
the Registrant's annual report pursuant to section 13(a) or section
15(d) of the Securities Exchange Act of 1934 (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to
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.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant has duly caused this Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in Denver,
Colorado on the 20th day of March, 1997.
TransMontaigne Oil Company
By /s/Richard E. Gathright
Richard E. Gathright
President
Each person whose signature appears below does hereby make,
constitute and appoint each of Harold R. Logan, Jr., Richard E.
Gathright and W.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 March 20, 1997.
Name and Signature Title
/s/ CORTLANDT S. DIETLER Chairman and Chief Executive Officer
Cortlandt S. Dietler (Principal executive officer)
/s/ RICHARD E. GATHRIGHT Director and President
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
Rodney S. Pless (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
Director
Edwin H. Morgens
[LETTERHEAD OF HOLME ROBERTS & OWEN LLP APPEARS HERE]
TransMontaigne Oil Company
370 17th Street, Suite 2750
Denver, CO 80202
Re: Sale of Shares of Common Stock Pursuant to Registration
Statement on Form S-3
Gentlemen:
We have acted as counsel to TransMontaigne Oil Company (the
"Company") in connection with the registration by the Company of
100,000 shares of common stock, $.01 par value per share (the
"Shares") described in the Registration Statement on Form S-3 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 23.1
Accountants' Consent
The Board of Directors
TransMontaigne Oil Company:
We consent to the use of our report relating to the
consolidated balance sheets of TransMontaigne Oil Company as of
April 30, 1996 and 1995, and the related consolidated statements
of operations, stockholders' equity, and cash flows for the years
ended April 30, 1996 and 1995, the seven months ended April 30,
1994 and the year ended September 30, 1993 incorporated by
reference herein and to the reference to our firm under the
heading "Experts" in the prospectus.
KPMG Peat Marwick LLP
Denver, Colorado
March 19, 1997
Exhibit 23.2
Accountants' Consent
The Board of Directors
Lion Oil Company:
We consent to incorporation by reference in the registration
statement on Form S-2 of TransMontaigne Oil Company of our report
dated July 19, 1996 relating to the consolidated balance sheets
of Lion Oil Company 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, and to the reference to our firm under the heading
"Experts" in the prospectus. Our report refers to a change in
the method of accounting for income taxes effective May 1, 1993.
KPMG Peat Marwick LLP
Jackson, Mississippi
March 19, 1997
Exhibit 23.3
Accountants' Consent
The Board of Directors
TransMontaigne Oil Company:
We consent to the use of our report relating to the
historical summaries of revenue and direct operating expenses of
a natural gas gathering, processing, treating and fractionation
system (the Grasslands Facilities) of Koch Industries, Inc.
acquired by TransMontaigne Oil Company for the nine months ended
September 30, 1996 and the years ended December 31, 1995 and 1994
incorporated by reference herein and the reference to our firm
under the heading "Experts" in the prospectus.
KPMG Peat Marwick LLP
Denver, Colorado
March 19, 1997
