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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): March 25, 1999
TransMontaigne Inc.
(Exact Name of Registrant as Specified in its Charter)
Delaware 001-11763 06-1052062
(State or Other (Commission File (IRS Employer
Jurisdiction of Number Identification
Incorporation) Number)
370 Seventeenth Street
Suite 2750
Denver, CO 80202
(Address of Principal Executive Office)
Registrant's telephone number, including area code: (303) 626-8200
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<PAGE>
Item 5. Other Events
On Wednesday, March 31, 1999, TransMontaigne Inc. (the "Company")
announced that it has completed a private placement of $170 million of
Convertible Preferred Stock Units. Each Unit consists of one share of 5%
Convertible Preferred Stock, convertible into common stock at $15 per
share, and one Warrant to purchase six-tenths of a share of common stock at
a price of $14 per full common share equivalent. The proceeds of the
financing will be used to repay bank debt and for general corporate
purposes.
Attached hereto as Exhibit 99.1 is the press release issued by
the Company relating to this private placement. Attached hereto as Exhibits
99.2-99.8 are the Form of Preferred Stock and Warrant Purchase Agreement,
the Certificate of Designations of Series A Preferred Stock, the Warrant
Agreement, the Registration Rights Agreement, the Stockholders' Agreement,
an Amendment and Waiver and a Second Amendment and Waiver.
Item 7. Financial Statements and Exhibits
(c) Exhibits
Exhibit No. Description
99.1 Press release dated March 31, 1999.
99.2 Form of Preferred Stock and Warrant
Purchase Agreement (without exhibits).
99.3 Certificate of Designations of Series A
Convertible Preferred Stock.
99.4 Warrant Agreeent between the Company
and BankBoston, N.A. dated March 25,
1999.
99.5 Stockholders' Agreement among the
Company and certain institutional
purchasers signatories thereto dated
March 25, 1999.
99.6 Registration Rights Agreement between
the Company and the purchasers
signatories thereto dated March 25, 1999
(without exhibits).
99.7 Amendment and Waiver between the Company
and Louis Dreyfus Corporation dated March
25, 1999.
99.8 Second Amendment and Waiver by and among
the Company and certain institutional
investors signatories thereto dated March
25, 1999.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on its behalf
by the undersigned hereunto duly authorized.
TransMontaigne Inc.,
By: /s/ Harold R. Logan, Jr.
----------------------------
Harold R. Logan, Jr.
Executive Vice President
March 31, 1999
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EXHIBIT INDEX
Exhibit No. Description of Exhibit
99.1 Press release dated March 31, 1999.
99.2 Form of Preferred Stock and Warrant Purchase Agreement (without
exhibits).
99.3 Certificate of Designations of Series A Convertible Preferred
Stock.
99.4 Warrant Agreeent between the Company and BankBoston, N.A.
dated March 25, 1999.
99.5 Stockholders' Agreement among the Company and certain
institutional purchasers signatories thereto dated March 25,
1999.
99.6 Registration Rights Agreement between the Company and the
purchasers signatories thereto dated March 25, 1999 (without
exhibits).
99.7 Amendment and Waiver between the Company and Louis Dreyfus
Corporation dated March 25, 1999.
99.8 Second Amendment and Waiver by and among the Company and
certain institutional investors signatories thereto dated
March 25, 1999.
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Exhibit 99.1
Contact: Harold R. Logan, Jr.
Executive Vice President/Finance
303-626-8200
Wednesday, 31 March 1999 Release at 8:30 A.M. Eastern Time
- ------------------------ ---------------------------------
TransMontaigne Inc. Closes on $170 Million Private Placement of Equity
Denver, Colorado, March 31, 1999 - TransMontaigne Inc. (ASE: TMG) today
announced that it has closed a private placement of $170 million of
Convertible Preferred Stock Units. Each Unit consists of one share of 5%
Convertible Preferred Stock, convertible into common stock at $15 per
share, and one Warrant to purchase six-tenths of a share of common stock at
a price of $14 per full common share equivalent. Proceeds will be used to
repay bank debt and for general corporate purposes.
Denver-based TransMontaigne, with principal operating offices in Atlanta,
Ga., and Fayetteville, Ark. is the dominant independent provider of
"seamless" logistical petroleum product services to the petroleum industry
in the United States, and is the largest provider of natural gas services
to producers in the Williston Basin of the northern Rockies. TransMontaigne
provides a broad range of logistically integrated transportation,
terminaling, supply, distribution, gathering, processing and marketing
services to refiners, manufacturers, producers, transporters, suppliers,
distributors, marketers and end-users of petroleum products, natural gas,
crude oil, chemicals, and other bulk liquids. TransMontaigne operates
exclusively for the purpose of providing these services to its customers,
and does not explore for, or produce, crude oil or natural gas.
The securities referenced in this press release have not been, and will not
be, registered under the Securities Act of 1933, as amended, and may not be
offered or sold in the United States absent registration or an applicable
exemption from registration requirements.
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Exhibit 99.2
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PREFERRED STOCK AND WARRANT PURCHASE AGREEMENT
dated
March__, 1999
between
TRANSMONTAIGNE INC.
and
[NAME OF PURCHASER]
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TABLE OF CONTENTS
Page
SECTION 1. SALE AND PURCHASE OF PREFERRED STOCK AND WARRANTS...............1
SECTION 2. THE CLOSING.....................................................2
SECTION 3. DEFINITIONS.....................................................2
SECTION 4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY..................12
4.1. Corporate Existence, Power and Authority...............12
4.2. Capital Stock..........................................13
4.3. Subsidiaries...........................................14
4.4. Business...............................................15
4.5. No Defaults or Conflicts...............................15
4.6. Disclosure Materials; Other Information................16
4.7. Litigation.............................................17
4.8. Taxes..................................................17
4.9. ERISA. ................................................17
4.10. Legal Compliance.......................................19
4.11. Outstanding Securities.................................19
4.12. Permits, Licenses and Approvals; Intellectual
Property and Other Rights..............................19
4.13. Properties.............................................19
4.14. Environmental Compliance...............................20
4.15. Offering of Shares and Warrants........................20
4.16. SEC Reports............................................20
4.17. Indebtedness...........................................21
4.18. Use of Proceeds........................................21
4.19. Other Names............................................21
4.20. Brokers................................................21
SECTION 5. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER........22
5.1. Corporate Power and Authority..........22
5.2. Investment Intent......................22
5.3. Brokers................................22
5.4. Access.................................23
5.5 Purchaser Qualification................23
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SECTION 6. RESTRICTIONS ON TRANSFER...............................24
SECTION 7. INFORMATION AS TO THE COMPANY..........................24
7.1. Financial Information...............................24
7.2. Communication with Accountants......................26
7.3. Inspection..........................................26
7.4. Notices.............................................27
7.5. Confidentiality.....................................28
SECTION 8. AFFIRMATIVE COVENANTS..................................28
8.1. Maintenance of Existence, Properties and Franchises;
Compliance with Law; Taxes; Insurance...............28
8.2. Environmental Matters...............................29
SECTION 9. NEGATIVE COVENANTS.....................................29
9.1. No Dilution or Impairment; No Changes in Capital
Stock...............................................29
9.2. Actions Prior to the Closing Date...................30
9.3. Additional Issuances of Series A Convertible
Preferred Stock.....................................30
SECTION 10. PREEMPTIVE RIGHTS......................................30
SECTION 11. CONDITIONS TO PURCHASER'S OBLIGATIONS..................33
11.1. Certificate of Designations; Stockholders' Agreement;
Registration Rights Agreement........................33
11.2. Certificates for Shares and Warrants.................33
11.3. Accuracy of Representations and Warranties...........33
11.4. Compliance with Agreements...........................33
11.5. Officers' Certificates...............................34
11.6. Proceedings..........................................34
11.7. Legality; Governmental and Other Authorization.......34
11.8. No Material Adverse Change...........................34
11.9. Opinion of Counsel...................................34
11.10. Additional Purchases of Shares and Warrants..........35
11.11. Other Documents......................................35
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SECTION 12. INDEMNIFICATION FOR BREACH OF REPRESENTATIONS,
WARRANTIES AND COVENANTS AND INDEMNIFICATION FOR
ENVIRONMENTAL LIABILITIES..............................35
SECTION 13. EXPENSES...............................................36
SECTION 14. DIRECT PAYMENTS........................................38
SECTION 15. AMENDMENTS AND WAIVERS.................................38
SECTION 16. NOTICES................................................38
SECTION 17. MISCELLANEOUS..........................................39
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PREFERRED STOCK AND WARRANT PURCHASE AGREEMENT
This PREFERRED STOCK AND WARRANT PURCHASE AGREEMENT
is dated as of March __, 1999 between TransMontaigne Inc., a
Delaware corporation (the "Company"), and the Purchaser
listed on the signature page of this Agreement (the
"Purchaser").
W I T N E S S E T H :
WHEREAS, the Company desires to issue and sell to
the Purchaser, and the Purchaser desires to purchase from the
Company, shares of the Company's Series A Convertible
Preferred Stock, par value $.01 per share (the "Series A
Convertible Preferred Stock"), and Warrants to purchase
shares of the Company's Common Stock, all upon the terms and
provisions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual
covenants and agreements set forth herein and for other good
and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
SECTION 1. SALE AND PURCHASE OF PREFERRED STOCK AND WARRANTS
(a) The Company agrees to sell to the Purchaser
and, subject to the terms and conditions hereof and in
reliance upon the representations and warranties of the
Company contained herein, the Purchaser agrees to purchase
from the Company on the Closing Date specified in Section 2
hereof, the number of shares of Series A Convertible
Preferred Stock and the number of Warrants, each to purchase
three-fifths of one share of Common Stock of the Company,
set forth opposite the Purchaser's name on Schedule 1
hereto. The shares of Series A Convertible Preferred Stock
being acquired under this Agreement and by the other
Purchasers under the other Stock and Warrant Purchase
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Agreements are collectively referred to herein as the
"Shares", containing rights and privileges as more fully set
forth in the Certificate of Designations of the Company in
the form attached hereto as Exhibit A-1 (the "Certificate of
Designations"). "Warrants" means up to an aggregate of
13,334,000 Warrants to purchase up to an aggregate of
8,000,400 shares of Common Stock, subject to adjustment. The
Warrants have the terms set forth in the Warrant Agreement
of the Company in the form attached hereto as Exhibit A-2
(the "Warrant Agreement").
(b) The aggregate purchase price to be paid to the
Company by the Purchaser for the Shares and Warrants to be
purchased by the Purchaser pursuant to this Agreement shall
be the amount set forth opposite the Purchaser's name on
Schedule 1 hereto. No further payment shall be required from
the Purchaser for the Shares and Warrants. Exercise of the
Warrants is conditioned upon payment of the exercise price
set forth in the Warrant Agreement.
(c) The Shares and Warrants are being sold to the
purchasers listed on Schedule 1 hereto (the "Purchasers")
pursuant to this Agreement and the other Series A
Convertible Preferred Stock and Warrant Purchase Agreements
(all such agreements collectively, as from time to time
supplemented or amended or as the terms thereof may be
waived, the "Stock and Warrant Purchase Agreements"). All
Stock and Warrant Purchase Agreements shall be identical
except as to the identities of the respective Purchasers,
the number of Shares and Warrants to be purchased, the date
of such Stock and Warrant Purchase Agreement, and certain
delayed closing mechanics for certain Purchases. The sale of
Shares and Warrants to each Purchaser under each Stock and
Warrant Purchase Agreement is to be a separate sale, and no
Purchaser shall have any liability under any Stock and
Warrant Purchase Agreement other than the Stock and Warrant
Purchase Agreement to which it is a party.
SECTION 2. THE CLOSING
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(a) Subject to the terms and conditions hereof,
the closing of the purchase and sale of the Shares and
Warrants to be purchased by the Purchaser (the "Closing")
will take place at the offices of Morgan, Lewis & Bockius
LLP, 101 Park Avenue, New York, New York at 10:00 A.M., New
York City time, on March 25, 1999 or such other time and
date as shall be mutually agreed to by the Company and the
Purchaser, but in any event no later than March 31, 1999.
Such time and date are herein referred to as the "Closing
Date."
(b) Subject to the terms and conditions hereof, on
the Closing Date (i) the Company will deliver to the
Purchaser (x) a certificate registered in the Purchaser's
name (or the name of its nominee, if any, as specified on
Schedule 1 hereto) evidencing the number of Shares set forth
opposite the Purchaser's name on Schedule 1 and (y) a
Warrant Certificate (pursuant to the Warrant Agreement)
registered in the Purchaser's name (or the name of its
nominee, if any, as specified on Schedule 1 hereto)
evidencing a number of Warrants equal to the number set
forth opposite the Purchaser's name on Schedule 1, and (ii)
the Purchaser will deliver to the Company a certified or
official bank check (or wire transfer) in an amount equal to
the aggregate purchase price (as specified in Section 1(b)
hereof) for the Shares and Warrants to be purchased by the
Purchaser payable to the order of the Company in federal or
other immediately available (same-day) funds.
SECTION 3. DEFINITIONS
(a) For purposes of this Agreement, the following
definitions shall apply (such definitions to be equally
applicable to both the singular and plural forms of the
terms defined):
"Affiliate", when used with respect to any Person,
means (i) if such Person is a corporation, any officer
or director thereof and any Person which is, directly
or indirectly, the beneficial owner (by itself or as
part of any group) of more than five percent (5%) of
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any class of any equity security (within the meaning of
the Securities Exchange Act) thereof, and, if such
beneficial owner is a partnership, any general partner
thereof, or if such beneficial owner is a corporation,
any Person controlling, controlled by or under common
control with such beneficial owner, or any officer or
director of such beneficial owner or of any corporation
occupying any such control relationship, (ii) if such
Person is a partnership, any general or limited partner
thereof, and (iii) any other Person which, directly or
indirectly, controls or is controlled by or is under
common control with such Person. For purposes of this
definition, "control" (including the correlative terms
"controlling", "controlled by" and "under common
control with"), with respect to any Person, shall mean
possession, directly or indirectly, of the power to
direct or cause the direction of the management and
policies of such Person, whether through the ownership
of voting securities or by contract or otherwise. The
holding of Shares (or of Conversion Shares obtained
upon conversion of Shares) or Warrants (or of Warrant
Shares issuable upon the exercise of the Warrants), and
the rights under any Stock and Warrant Purchase
Agreement or under the Certificate of Designations, the
Warrant Agreement, the Stockholders' Agreement or the
Registration Rights Agreement, or the exercise of any
such rights, shall not cause a Purchaser to be deemed
to be an "Affiliate" of the Company or of any
Subsidiary.
"Agreement" means this Preferred Stock and Warrant
Purchase Agreement (together with exhibits and
schedules) as from time to time supplemented or amended
or as the terms hereof may be waived.
"Benefit Plan" means any Plan, existing at the
Closing Date or prior thereto, established or to which
contributions have at any time been made by the Company
or any Subsidiary, or any predecessor of any of the
foregoing, or under which any employee, former employee
or director of the Company or any Subsidiary or any
<PAGE>
beneficiary thereof is covered, is eligible for
coverage or has benefit rights.
"Board" or "Board of Directors" means with respect
to any Person which is a corporation, a business trust
or other entity, the board of directors or other group,
however, designated, which is charged with legal
responsibility for the management of such Person, or
any committee of such board of directors or group,
however designated, which is authorized to exercise the
power of such board or group in respect of the matter
in question.
"Business Day" means any day other than a
Saturday, Sunday or any day on which banks in the City
of New York are authorized or obligated to close.
"Capitalized Leases" means any lease to which the
Company or a Subsidiary is party as lessee, or by which
it is bound, under which it leases any property (real,
personal or mixed) from any lessor other than the
Company or a Subsidiary, and which is required to be
capitalized in accordance with generally accepted
accounting principles consistently applied.
"Certificate of Designations" has the meaning set
forth in Section 1(a) hereof.
"Closing" has the meaning set forth in Section
2(a) hereof.
"Closing Date" has the meaning set forth in
Section 2(a) hereof.
"Code" means the Internal Revenue Code of 1986, as
amended from time to time, and the regulations
thereunder.
"Commission" means the Securities and Exchange
Commission and any successor agency of the federal
government administering the Securities Act or the
Securities Exchange Act.
<PAGE>
"Common Stock" means the Company's Common Stock,
par value $.01 per share, and shall also include any
capital stock or other securities of the Company into
which Common Stock is changed, including by way of a
reclassification, combination or subdivision.
"Company" means TransMontaigne Inc., a Delaware
corporation, and its successors and assigns.
"Consolidated" or "consolidated", when used with
reference to any financial term in this Agreement,
means the aggregate for the Company and its
Subsidiaries of the amounts signified by such term for
all such Persons, with intercompany items eliminated,
and otherwise as determined in accordance with
generally accepted accounting principles consistently
applied (except as otherwise expressly provided
herein).
"Conversion Price" means the Conversion Price per
share of Common Stock into which the Series A
Convertible Preferred Stock is convertible, as such
Conversion Price may be adjusted pursuant to Section 5
of the Certificate of Designations.
"Conversion Share" or "Conversion Shares" means
the shares of the Company's Common Stock obtained or
obtainable upon conversion of Shares and shall also
include any capital stock or other securities into
which Conversion Shares are changed and any capital
stock or other securities resulting from or comprising
a reclassification, combination or subdivision of, or a
stock dividend on, any Conversion Shares.
"Credit Agreement" means the Second Amended and
Restated Credit Agreement, dated as of October 30,
1998, between the Company and Bank Boston, N.A., as
agent, as amended, modified or the terms of which are
waived from time to time, or one or more credit
agreements, that subsequent to the termination or
expiration of the Credit Agreement, may be entered into
to refinance the Indebtedness incurred in connection
with the Credit Agreement or any successor credit
agreement, as amended, modified or the terms of which
are waived from time to time.
"Disclosure Material" has the meaning specified in
Section 4.6(a) hereof.
"Environmental Laws" means all applicable federal,
state, local, foreign, civil and criminal laws,
statutes, ordinances, orders, codes, Environmental
Permits, rules and regulations and common law relating
to the protection of the environment and human health
or relating to the release, handling, use,
<PAGE>
generation, treatment, storage, transportation or
disposal of Hazardous Materials, including but not
limited to the Resource Conservation and Recovery Act
of 1976, 42 U.S.C. ss. 6901 et seq.; the Toxic
Substances Control Act, 15 U.S.C. ss. 2601 et seq.; the
Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, 42 U.S.C. ss. 9601 et seq.; the
Federal Water Pollution Control Act, 33 U.S.C. ss. 1251
et seq.; the Clean Air Act, 42 U.S.C. ss. 7401 et seq.;
the Hazardous Materials Transportation Act, 49 U.S.C.
ss. 1801 et seq.; The Occupational Safety and Health
Act, 29 U.S.C. ss. 651; the Federal Insecticide,
Fungicide and Rodenticide Act, 7 U.S.C. ss. 136y et
seq.; and the Oil Pollution Act of 1990, 33 U.S.C. ss.
2701 et seq., all as may be amended or superseded from
time to time.
"Environmental Lien" means any Liens arising under
or pursuant to any Environmental Law.
"Environmental Permits" means all permits,
licenses, approvals, authorizations or consents
required by any Governmental Authority under any
applicable Environmental Law and includes any and all
orders, consent orders or binding agreements issued by
or entered into with a Governmental Authority under any
applicable Environmental Law.
"ERISA" means Employee Retirement Income Security
Act of 1974, as amended.
"ERISA Affiliate" means each "person" (as defined
in Section 3(9) of ERISA) which is under "common
control" with the Company or any of its Subsidiaries
(within the meaning of Section 414(b) or (c) or, solely
for purposes of Section 302 of ERISA and Section 412 of
the Code, is treated as a single employer under Section
414(m) or (o) of the Code).
"Governmental Authority" means any federal, state,
or local governmental agency or authority (including
regulatory authority) having jurisdiction over the
Company or any of its Subsidiaries or any of its
respective assets or businesses.
"Guaranty" means (i) any guaranty or endorsement
of the payment or performance of, or any contingent
obligation in respect of, any indebtedness or other
obligation of any other Person, (ii) any other
arrangement whereby credit is extended to one obligor
(directly or indirectly) on the basis of any promise or
undertaking of another Person (a) to pay the
indebtedness of such obligor, (b) to purchase an
obligation owed by such obligor, (c) to purchase or
lease assets (or to provide funds, goods or services)
under circumstances that would enable such obligor to
discharge one or more of its obligations or (d) to
maintain the capital,
<PAGE>
working capital, solvency or general financial
condition of such obligor, in each case whether or not
such arrangement is disclosed in the balance sheet of
such other Person or is referred to in a footnote
thereto and (iii) any liability as a general partner of
a partnership in respect of indebtedness or other
obligations of such partnership; provided, however,
that the term "Guaranty" shall not include (1)
endorsements for collection or deposit in the ordinary
course of business or (2) obligations of the Company or
its Subsidiaries which would constitute Guaranties
solely by virtue of the continuing liability of a
Person which has sold assets subject to liabilities for
the liabilities which were assumed by the Person
acquiring the assets, unless such liability is required
to be carried on the consolidated balance sheet of the
Company. The amount of any Guaranty and the amount of
indebtedness resulting from such Guaranty shall be the
maximum amount of the guarantor's potential obligation
in respect of such Guaranty.
"Hazardous Materials" means any petroleum,
petroleum hydrocarbons, petroleum waste or petroleum
products, underground storage tanks, asbestos or
asbestos-containing materials, pesticides, lead and
lead-containing materials, urea formaldehyde insulation
and polychlorinated biphenyls (PCBs), ionizing and
non-ionizing radiation including radon and
electromagnetic frequency radiation; and any chemicals,
materials, substances or wastes in any amount or
concentration which are now or hereafter designated or
regulated as "hazardous substances," "hazardous
wastes," "hazardous materials," "extremely hazardous
wastes," "restricted hazardous wastes," "toxic
substances" or "toxic pollutants" under any
Environmental Law.
"Indebtedness" of any Person means, without
duplication, as of any date as of which the amount
thereof is to be determined, (i) all obligations of
such Person to repay money borrowed (including, without
limitation, all notes payable and drafts accepted
representing extensions of credit, all obligations
under letters of credit, all obligations evidenced by
bonds, debentures, notes or other similar instruments
and all obligations upon which interest charges are
customarily paid), (ii) all Capitalized Leases in
respect of which such Person is liable as lessee or as
the guarantor of the lessee, (iii) all monetary
obligations which are secured by any Lien existing on
property owned by such Person whether or not the
obligations secured thereby have been incurred or
assumed by such Person, (iv) all conditional sales
contracts and similar title retention debt instruments
under which such Person is obligated to make payments,
(v) all Guaranties by such Person and (vi) all
contractual obligations (whether absolute or
contingent) of such Person to repurchase goods sold and
distributed. "Indebtedness" shall not include, however,
(1) Indebtedness of the Company to any of its
wholly-owned Subsidiaries or Indebtedness of any
wholly-owned Subsidiary to the Company or to another
wholly-owned Subsidiary, and (2) any unfunded
obligations in any
<PAGE>
employee pension benefit plan (as defined in ERISA) of the Company
or of any Subsidiary.
"Institutional Investors" means all of the Purchasers which are
parties to the Stockholders' Agreement.
"Investment" means, with respect to any Person, (i) any loan,
advance or extension of credit by such Person to, and any
contributions to the capital of, any other Person, (ii) any Guaranty
by such Person, (iii) any interest in any capital stock, equity
interest or other securities of any other Person, (iv) any transfer
or sale of property of such Person to any other Person other than
upon full payment, in cash, or not less than the fair market value
of such property and (v) any commitment or option to make an
Investment if, in the case of an option, the consideration for the
acquisition of which exceeds $10,000, and any of the foregoing under
clauses (i) through (v) shall be considered an Investment whether
such Investment is acquired by purchase, exchange, merger or any
other method; provided, that the term "Investment" (1) shall not
include an Investment in the Company or in a wholly-owned
Subsidiary, (2) shall not include current trade and customer
accounts receivable and allowances, provided they relate to goods
furnished in the ordinary course of business and are given in
accordance with the customary practices of the Company or a
Subsidiary, (3) shall not include temporary investments of excess
cash of the Company or of any Subsidiary in any of the following:
(A) investment grade obligations maturing within one year of their
issuance which as to principal and interest constitute direct
obligations of, or obligations guaranteed by, the United States of
America, (B) negotiable certificates of deposit of banks or trust
companies which are organized under the laws of the United States of
America or any state thereof and which have capital and surplus of
at least $500,000,000, (C) commercial paper which is rated not less
than prime-one or A-1 or their equivalents by Moody's Investor
Service, Inc., or Standard & Poor's Corporation or their successors,
(D) any repurchase agreement secured by any one or more of the
foregoing and (E) money market funds primarily investing in any of
the foregoing securities and sponsored by or affiliated with
nationally recognized brokerage or investment advisory firms, and
(4) shall not include Investments of the Company or any Subsidiary
existing on the date hereof.
"Lien" means any mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or other), or
preference, priority or other security interest of any kind or
nature whatsoever (including, without limitation, any conditional
sale or other title retention agreement, any financing lease having
substantially the same effect as any of the foregoing, any
assignment or other conveyance of any right to receive income and
any assignment of
<PAGE>
receivables with recourse against the assignor), any filing of a
financing statement as debtor under the Uniform Commercial Code or
any similar statute and any agreement to give or make any of the
foregoing.
"Material Adverse Effect" means a material adverse effect on
the business, assets, operations, condition (financial or other) or
prospects of the Company and its Subsidiaries on a consolidated
basis.
"Outstanding" or "outstanding" means (a) when used with
reference to the Shares or Warrants as of a particular time, all
Shares or Warrants theretofore duly issued except (i) Shares or
Warrants theretofore reported as lost, stolen, mutilated or
destroyed or surrendered for transfer, exchange or replacement, in
respect of which new or replacement Shares or Warrants have been
issued by the Company, (ii) Shares and Warrants theretofore canceled
by the Company and (iii) Shares and Warrants registered in the name
of, as well as Shares and Warrants owned beneficially by, the
Company, any Subsidiary or any of their Affiliates. For purposes of
the preceding sentence, in no event shall "Affiliates" include (x)
the persons which are identified as "Purchasers" on Schedule 1
hereto or (y) any Affiliates of any such persons.
"Pension Plan" means any "employee pension benefit plan" as
defined in Section 3(2) of ERISA.
"Person" or "person" means an individual, corporation, limited
liability company, partnership, firm, association, joint venture,
trust, unincorporated organization, government, governmental body,
agency, political subdivision or other entity.
"Plan" means any bonus, incentive compensation, deferred
compensation, pension, profit sharing, retirement, stock purchase,
stock option, stock ownership, stock appreciation rights, phantom
stock, leave of absence, layoff, vacation, day or dependent care,
legal services, cafeteria, life, health, accident, disability,
workers' compensation or other insurance, severance, separation or
other employee benefit plan, practice, policy or arrangement of any
kind, whether written or oral, or whether for the benefit of a
single individual or more than one individual including, but not
limited to, any "employee benefit plan" within the meaning of
Section 3(3) of ERISA.
"Preferred Stock" means any class of the capital stock of a
corporation (whether or not convertible into any other class of such
capital stock) which has any right, whether absolute or contingent,
to receive dividends or other distributions of the assets of such
corporation (including, without limitation,
<PAGE>
amounts payable in the event of the voluntary or involuntary
liquidation, dissolution or winding-up of such corporation), which
right is superior to the rights of another class of the capital
stock of such corporation. "Preferred Stock" includes, without
limitation, the Series A Convertible Preferred Stock.
"Purchaser" means the person who accepts and agrees to the
terms hereof as indicated by such person's signature (as "the
undersigned Purchaser") on the execution page of this Agreement,
together with its successors.
"Purchasers" has the meaning set forth in Section 1(c) hereof,
together with their respective successors.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of the Closing Date, among the Company and each
of the Purchasers.
"Restricted Payment" means (i) every payment in connection with
the redemption, purchase, retirement or other acquisition by or on
behalf of the Company or any Subsidiary of any shares of the
Company's or a Subsidiary's capital stock (as defined below),
whether or not owned by the Company or any Subsidiary, (ii) every
payment to or on behalf of any Affiliate of the Company or any
Affiliate of any Subsidiary on account of or with respect to any
lease arrangements, and (iii) every payment by or on behalf of the
Company or any Subsidiary (whether as repayment or prepayment of
principal or as interest or otherwise) on or with respect to (A) any
obligation to repay money borrowed owing to any Affiliate of the
Company or of any Subsidiary or (B) any obligation, to any Person,
of any Affiliate of the Company or of any Subsidiary to any other
holder of shares of the Company's capital stock (as defined below),
which obligation is assumed, or is the subject of a Guaranty, by the
Company or a Subsidiary; provided, however, (a) that the
restrictions of the foregoing clause (i) shall not apply to any
payment in respect of capital stock of the Company to the extent
payable in shares of the capital stock of the Company, (b) that the
restrictions of the foregoing clause (ii) shall not apply to any
scheduled prepayment or repayment of Indebtedness, provided that
such Indebtedness being prepaid or repaid, if issued after the date
hereof, is not at the time of such prepayment or repayment or at any
prior time thereto owing to an Affiliate of the Company, (c) that
none of the foregoing clauses shall apply to any payments from a
Subsidiary to the Company or from a Subsidiary to a wholly-owned
Subsidiary, (d) that none of the foregoing clauses shall apply to
any purchases by the Company from a wholly-owned Subsidiary of
additional capital stock of such Subsidiary and (e) that none of the
foregoing clauses shall apply to any payments, distributions or
other transfers or actions on or with respect to the Shares or to
the
<PAGE>
Purchasers (or holders of Shares) under the Stock and Warrant
Purchase Agreements. For purposes of this definition, "capital
stock" shall also include warrants and other rights and options to
acquire shares of capital stock (whether upon exercise, conversion,
exchange or otherwise).
"SEC Reports" has the meaning set forth in Section 4.16 hereof.
"Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations of the Commission thereunder.
"Securities Exchange Act" means the Securities Exchange Act of
1934, as amended, and the rules and regulations of the Commission
thereunder.
"Series A Convertible Preferred Stock" means the Company's
Series A Convertible Preferred Stock, par value $.01 per share,
which will have the rights, powers and privileges on the Closing
Date as more fully set forth in the Certificate of Designations.
"Shares" has the meaning set forth in Section 1(a) hereof. In
the event that any Shares are transferred (other than a transfer to
an Affiliate of the Purchaser), then the transferees of such Shares
shall not be entitled to any benefits under this Agreement with
respect to such Shares and such Shares shall no longer be considered
to be "Shares" for purposes of any provision of this Agreement.
"Stock and Warrant Purchase Agreements" has the meaning set
forth in Section 1(c) hereof.
"Stockholders' Agreement" means the Stockholders' Agreement,
dated as of the Closing Date, among the Company, the Institutional
Investors and certain officers of the Company.
"Subsidiary", with respect to any Person, means any
corporation, association or other entity of which more than 50% of
the total voting power of shares of stock or other equity interests
(without regard to the occurrence of any contingency) to vote in the
election of directors, managers or trustees thereof is, at the time
as of which any determination is being made, owned or controlled,
directly or indirectly, by such Person or one or more of its
Subsidiaries, or both. The term "Subsidiary" or "Subsidiaries" when
used herein without reference to any particular Person, means a
Subsidiary or Subsidiaries of the Company.
"Tax" or "Taxes" means any and all present or future taxes,
levies, imposts, duties, deductions, charges or withholdings imposed
by any
<PAGE>
Governmental Authority, together with any interest, penalties,
additions to tax or additional amounts with respect thereto.
"Tax Returns" means any returns, reports or statements
(including any information returns) required to be filed for
purposes of a particular Tax.
"Taxing Authority" means any governmental agency, board,
bureau, body, department or authority of any United States federal,
state or local jurisdiction, or any foreign jurisdiction, having or
purporting to exercise jurisdiction with respect to any Tax.
"Warrants" has the meaning set forth in Section 1(a) hereof.
"Warrant Agreement" has the meaning set forth in Section 1(a)
hereof.
"Warrant Share" or "Warrant Shares" means the shares of the
Company's Common Stock obtained or obtainable upon the exercise of
Warrants and shall also include any capital stock or other
securities into which Warrant Shares are changed and any capital
stock or other securities resulting from or comprising a
reclassification, combination or subdivision of, or a stock dividend
on, any Warrant Shares.
(b) For all purposes of this Agreement, except as otherwise
expressly provided or unless the context otherwise requires:
(i) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Agreement as a whole and
not to any particular Section or other subdivision;
(ii) all accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with United
States generally accepted accounting principles consistently
applied (except as otherwise provided herein);
(iii) all computations provided for herein, if any, shall
be made in accordance with United States generally accepted
accounting principles consistently applied (except as otherwise
provided herein);
(iv) any uses of the masculine, feminine or neuter gender
shall also be deemed to include any other gender, as
appropriate;
<PAGE>
(v) all references herein to actions by the Company or any
Subsidiary, such as "create", "sell", "transfer", "dispose of",
etc., mean such action whether voluntary or involuntary, by
operation of law or otherwise;
(vi) the exhibits and schedules to this Agreement shall be
deemed a part of this Agreement;
(vii) each of the representations and warranties of the
Company contained in Section 4 hereof is separate and is not
limited, qualified or modified by the existence, wording or
satisfaction of any other representation or warranty of the
Company in Section 4 or otherwise;
(viii) each of the covenants of the Company contained in
Sections 7, 8 and 9 hereof or otherwise contained in any Stock
and Warrant Purchase Agreement is separate and is not limited
or satisfied by the existence, wording or satisfaction of any
other covenant of the Company in Section 7, 8 or 9 or
otherwise; and
(ix) all references herein (in covenants or otherwise) to
any action(s) which are to be taken (or which are prohibited
from being taken) by any Person, the Company or any Subsidiary
shall apply to such Person, the Company or such Subsidiary, as
the case may be, whether such action is taken directly or
indirectly.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to the Purchaser as follows
as of the date hereof and as of the Closing Date:
4.1. Corporate Existence, Power and Authority.
(a) The Company and each Subsidiary are corporations duly
organized, validly existing and in good standing under the laws of their
jurisdictions of incorporation. The Company and each Subsidiary are duly
qualified, licensed and authorized to do business and are in good
standing in each jurisdiction in which they own or lease any property or
in which the conduct of their business requires them to so qualify or be
so licensed, except for such jurisdictions where the failure to so
qualify or be so licensed would not have a Material Adverse Effect.
(b) No proceeding has been commenced for the dissolution or
merger of the Company or any Subsidiary or
<PAGE>
the amendment of its respective certificate or articles of incorporation
(other than the Certificate of Designations) or any comparable document
with respect to any Subsidiary organized under the laws of a jurisdiction
outside the United States. Neither the Company nor any Subsidiary is in
violation in any respect of its certificate or articles of incorporation
or by-laws (or any comparable document with respect to any Subsidiary
organized under the laws of a jurisdiction outside the United States).
(c) Each of the Company and each Subsidiary has all requisite
power, authority (corporate and other) and legal right to own or to hold
under lease and to operate the properties it owns or holds and to conduct
its business as now being conducted.
(d) The Company has all requisite power, authority (corporate
and other) and legal right to execute, deliver, enter into, consummate
the transactions contemplated by and perform its obligations under (i)
the Stock and Warrant Purchase Agreements, including, without limitation,
the issuance by the Company of the Shares and the Conversion Shares as
contemplated herein and therein and in the Certificate of Designations
and the issuance by the Company of the Warrants and Warrant Shares as
contemplated herein and therein and in the Warrant Agreement, (ii) the
Stockholders' Agreement and (iii) the Registration Rights Agreement. The
execution, delivery and performance of the Stock and Warrant Purchase
Agreements, the Stockholders' Agreement and the Registration Rights
Agreement by the Company (including, without limitation, the issuance by
the Company of the Shares and the Conversion Shares as contemplated
herein and therein and in the Certificate of Designations and the
issuance by the Company of the Warrants and Warrant Shares as
contemplated herein and therein and in the Warrant Agreement) have been
duly authorized by all required corporate and other actions. The Company
has duly executed and delivered the Stock and Warrant Purchase
Agreements, the Stockholders' Agreement and the Registration Rights
Agreement. The Stock and Warrant Purchase Agreements, the Stockholders'
Agreement and the Registration Rights Agreement constitute the legal,
valid and binding obligations of the Company enforceable in accordance
with their respective terms, subject to bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer and other similar laws
relating to the rights of creditors generally from time to time in effect
and to general principles of equity, including without limitation,
concepts of materiality, reasonableness, good faith and fair dealing,
regardless of whether in a proceeding in equity or at law.
4.2. Capital Stock.
(a) The authorized capital stock of the Company consists of (i)
80,000,000 shares of Common Stock, par value $.01 per share, and (ii)
2,000,000 shares of Preferred Stock, par value $.01 per share, of which,
after giving effect to the
<PAGE>
Certificate of Designations, 250,000 shares will have been designated as
Series A Convertible Preferred Stock. On the date hereof, there are
outstanding (i) no shares of Preferred Stock and (ii) 30,471,024 shares
of Common Stock. On the Closing Date, after giving effect to the issuance
of Shares contemplated by the Stock and Warrant Purchase Agreements, (a)
no more than 200,000 shares of Series A Convertible Preferred Stock and
(b) 30,471,024 shares of Common Stock will be outstanding and (c)
4,500,000 shares of Common Stock (as of March 17, 1999) are reserved for
issuance under the Company's equity incentive plans. All of such
outstanding shares are, or on the Closing Date will be (assuming, with
respect to the Shares, that the Shares are paid for pursuant to this
Agreement), duly authorized, validly issued and outstanding, fully paid
and non-assessable. The shares of the Company's Common Stock issuable
upon conversion of the Series A Convertible Preferred Stock will be, when
issued in accordance with the terms of the Series A Convertible Preferred
Stock, duly authorized, validly issued, fully paid and non-assessable.
The Warrant Shares will be, when issued in accordance with the terms of
the Warrant Agreement, duly authorized, validly issued, fully paid and
non-assessable. Except as disclosed on Exhibit B hereto or pursuant to
the Stock and Warrant Purchase Agreements, none of the shares of the
Company's capital stock which will be outstanding at the Closing (i) were
or will be subject to preemptive rights when issued or (ii) provide the
holders thereof with any preemptive rights with respect to any issuances
of capital stock.
(b) The only shares of the Company's Common Stock reserved for
issuance by the Company are (i) shares of Common Stock to be issued upon
conversion of the Shares and exercise of the Warrants, (ii) shares of
Common Stock to be issued pursuant to the Company's equity incentive
plans and (iii) shares of Common Stock reserved for issuance on exercise
of Warrants issued in connection with the Amended and Restated Debenture
Agreement between the Company and various affiliates of Massachusetts
Mutual Life Insurance Company.
(c) Except as disclosed on Exhibit B hereto or pursuant to the
Stock and Warrant Purchase Agreements, there are no outstanding options,
warrants, subscriptions, rights, convertible securities or other
agreements or plans under which the Company may become obligated to issue
or sell shares of its capital stock or other securities.
(d) Except as disclosed on Exhibit B hereto, there are no
outstanding registration rights with respect to any capital stock of the
Company or of any Subsidiary, which will be outstanding on the Closing
Date, or any capital stock referred to in Section 4.2(b) or 4.2(c) or in
the last sentence of Section 4.3(b) below.
(e) Except as disclosed on Exhibit B hereto, there are no
voting agreements, voting trusts, proxies or other agreements or
understandings with third
<PAGE>
parties to which the Company is a party with respect to the voting of any
capital stock of the Company or any Subsidiary.
(f) Except as disclosed on Exhibit B hereto or pursuant to the
Stock and Warrant Purchase Agreements, there are no anti-dilution
protections or other adjustment provisions in existence with respect to
any capital stock of the Company or any Subsidiary or any capital stock
referred to in Section 4.2(b) or 4.2(c) or in the last sentence of
Section 4.3(b) below.
(g) The Certificate of Designations has been duly adopted by
the Company and as of the Closing Date will be in full force and effect.
Upon filing of the Certificate of Designations with the Secretary of
State of Delaware, the Shares will have all of the rights, priorities and
terms set forth in the Certificate of Designations.
(h) As of the Closing Date, the Warrant Agreement will have
been duly executed by the Company, and the Warrants will have all of the
rights and privileges set forth in the Warrant Agreement.
(i) To the knowledge of the Company, those persons who, as of
the date hereof, own, directly or indirectly, more than 5% of the
Company's outstanding Common Stock are as follows: Cortlandt S. Dietler,
First Reserve Corporation, Merrill Lynch Growth Fund, John A. Hill and
Louis Dreyfus Corporation.
4.3. Subsidiaries.
(a) The only Subsidiaries of the Company are those set forth on
Exhibit B hereto. Such Subsidiaries are owned as set forth on Exhibit B
hereto. Neither the Company nor any Subsidiary has any Investments in any
other Person, except as described on Exhibit B hereto.
(b) All outstanding shares of capital stock of the Subsidiaries
have been duly authorized and validly issued and are fully paid and
non-assessable and, except as disclosed on Exhibit B hereto, are owned
beneficially and of record by the Company free and clear of all Liens,
options or claims of any kind. Except as disclosed on Exhibit B hereto,
there are no outstanding options, warrants, subscriptions, rights,
convertible securities or other agreements or plans under which any
Subsidiary may become obligated to issue, sell or transfer shares of its
capital stock or other securities.
(c) Except as described on Exhibit B hereto, there are no
restrictions (whether by charter, agreement, instrument, judgment,
decree, order or otherwise (other than the applicable law)) that prohibit
any Subsidiary from paying dividends to the Company.
<PAGE>
4.4. Business.
The Company and its Subsidiaries are engaged primarily in the
business of providing a broad range of logistical services, including
transportation, terminaling, supply, distribution, gathering, processing
and marketing, to the midstream and downstream sectors of the petroleum
and petrochemical industries. Neither the Company nor any of its
Subsidiaries currently engages in, or has any intention of engaging in,
any other business. The Company is not subject to the Public Utility
Holding Company Act of 1935, as amended, the Federal Power Act, as
amended, or subject to regulation as a "public utility" or "public
service corporation" or subject to regulation under the applicable legal
requirements of any state relating to public utilities and/or public
service corporations.
4.5. No Defaults or Conflicts.
(a) Neither the Company nor any of its Subsidiaries is in
violation or default in any material respect under any indenture,
agreement or instrument to which it is a party or by which it or its
properties may be bound other than for such defaults as could not
reasonably be expected to have a Material Adverse Effect. Neither the
Company nor any Subsidiary is in default under any material order, writ,
injunction, judgment or decree of any court or other governmental
authority or arbitrator(s) other than for such defaults as could not
reasonably be expected to have a Material Adverse Effect.
(b) Other than as set forth in Exhibit B, the execution,
delivery and pe rformance by the Company of the Stock and Warrant
Purchase Agreements, the Stockholders' Agreement and the Registration
Rights Agreement and any of the transactions contemplated hereby or
thereby (including, without limitation, the issuance of the Shares and
the Conversion Shares as contemplated herein and therein and in the
Certificate of Designations, the adoption of the Certificate of
Designations as an amendment to the Company's certificate of
incorporation and the issuance by the Company of the Warrants and Warrant
Shares as contemplated herein and therein and in the Warrant Agreement)
do not and will not (i) violate or conflict with, with or without the
giving of notice or the passage of time or both, any provision of (A) the
respective certificates or articles of incorporation or by-laws of the
Company or any of its Subsidiaries (or with respect to any Subsidiary
organized under the laws of a jurisdiction outside the United States, the
respective comparable documents under the laws of such jurisdiction) or
(B) any law, rule, regulation or order of any federal, state, county,
municipal or other governmental authority, or any judgment, writ,
injunction, decree, award or other action of any court or governmental
authority or arbitrator(s), or any agreement, indenture or other
instrument applicable to the Company or any of its Subsidiaries or any of
their respective properties, (ii) result in the creation of any Lien
<PAGE>
upon any of the Company's or any Subsidiary's properties, assets or
revenues, (iii) other than (A) as required by Delaware law or the
Securities Exchange Act (with respect to filings only) or (B) with
respect to the Registration Rights Agreement, pursuant to the Securities
Act or state securities laws, require the consent, waiver, approval,
order or authorization of, or declaration, registration, qualification or
filing with, any Person (whether or not a governmental authority and
including, without limitation, any shareholder approval), or (iv) cause
anti-dilution clauses of any outstanding securities to become operative
or give rise to any preemptive rights.
4.6. Disclosure Materials; Other Information.
(a) The Company has previously furnished to the Purchaser the
materials described on Schedule 2 hereto (the "Disclosure Material"). The
audited and unaudited historical financial statements referred to or
contained in the materials referred to on Schedule 2 fairly present the
consolidated financial condition of the Company as of the respective
dates thereof and the consolidated results of the operations of the
Company for such periods and have been prepared in accordance with United
States generally accepted accounting principles consistently applied,
except that any such unaudited statements may omit notes and may be
subject to year- end adjustment.
(b) Since January 31, 1999, except as disclosed on Exhibit B
hereto or in the Company's Form 10-Q for the quarter ended December 31,
1998, (i) the business of the Company and the Subsidiaries has been
conducted in the ordinary course and (ii) there has been no material
adverse change in the assets, properties, liabilities, business, affairs,
results of operations, condition (financial or otherwise) or prospects of
the Company on a consolidated basis. As of the Closing Date and as of the
date hereof, except as disclosed on Exhibit B hereto, there are no
material liabilities of the Company or any Subsidiary which would be
required to be provided for in a consolidated balance sheet of the
Company as of either such date prepared in accordance with United States
generally accepted accounting principles consistently applied, other than
liabilities provided for in the financial statements referred to in
Section 4.6(a). Since January 31, 1999, no amount or property has
directly or indirectly been declared, ordered, paid, made or set aside
for any Restricted Payment nor has any such action been agreed to.
(c) Other than any financial projections or capital expenditure
forecasts (on which the Company makes no representations or warranties
other than that such financial projections or capital expenditure
forecasts have been prepared on a reasonable basis) none of the
Disclosure Material contained or contains a false or misleading statement
of a material fact or omits to state any material fact necessary in order
to make the statements made in such Disclosure Material, in light of the
circumstances under which they were made, not misleading.
4.7. Litigation.
Except as disclosed on Exhibit B hereto, there is no action,
suit, proceeding, investigation or claim pending or, to the knowledge of
the Company or the Subsidiaries, threatened in law, equity or otherwise
before any court, administrative agency or arbitrator which (i) questions
the validity of the Stock and Warrant Purchase Agreements, the
Certificate of Designations, the Warrant Agreement, the Stockholders'
Agreement, the Registration Rights Agreement, the Shares, or the Warrants
or any action taken or to be taken pursuant hereto or thereto, or (ii)
could reasonably be expected to have a Material Adverse Effect.
4.8. Taxes.
Each of the Company and each Subsidiary has timely filed or
caused to be filed all Tax Returns required to have been filed and has
paid or caused to be paid all Taxes required to have been paid by it,
except (a) any Taxes that are being contested in good faith by
appropriate proceedings and for which the Company or such Subsidiary, as
applicable, has set aside on its books adequate reserves or (b) to the
extent that the failure to do so could not reasonably be expected to
result in a Material Adverse Effect.
4.9. ERISA.
(a) All Benefit Plans are listed in Exhibit B, and copies of
all documentation relating to such Benefit Plans have been delivered or
made available to Purchasers (including copies of written Benefit Plans,
written descriptions of oral Benefit Plans, summary plan descriptions,
trust agreements, the three most recent annual returns, employee
communications, and IRS determination letters).
(b) Each Benefit Plan has at all times been maintained and
administered in all material respects in accordance with its terms and
with the requirements of all applicable law, including ERISA and the Code
except where the failure to comply would not be reasonably expected to
result in a material liability, and each Benefit Plan intended to qualify
under section 401(a) of the Code has at all times since its adoption been
so qualified, and each trust which forms a part of any such plan has at
all times since its adoption been tax-exempt under section 501(a) of the
Code.
(c) No Benefit Plan has incurred any "accumulated funding
deficiency" within the meaning of section 302 of ERISA or section 412 of
the Code, and neither the Company nor any ERISA Affiliate has incurred
any liability to a Benefit Plan (other than for contributions not yet
due) or to the Pension Benefit Guaranty Corporation
<PAGE>
(other than for payment of premiums not yet due) with respect to any
Benefit Plan subject to Title IV of ERISA.
(d) No "reportable event" (within the meaning of section 4043
of ERISA) has occurred with respect to any Benefit Plan or any Plan
maintained by an ERISA Affiliate since the effective date of said section
4043 other than a reportable event for which the 30-day notice
requirement has been waived.
(e) No Benefit Plan is a multiemployer plan within the meaning
of section 3(37) of ERISA.
(f) No direct, contingent or secondary liability has been
incurred or is expected to be incurred by the Company or any Subsidiary
under Title IV of ERISA to any party with respect to any Benefit Plan, or
with respect to any other Plan presently or heretofore maintained or
contributed to by any ERISA Affiliate.
(g) Neither the Company, any Subsidiary nor any ERISA Affiliate
has incurred any liability for any tax imposed under section 4971 through
4980B of the Code or civil liability under section 502(i) or (l) of
ERISA.
(h) No benefit under any Benefit Plan, including, without
limitation, any severance or parachute payment plan or agreement, will be
established or become accelerated, vested or payable solely by reason of
any transaction contemplated under this Agreement.
(i) No Benefit Plan provides health or death benefit coverage
beyond the termination of an employee's employment, except as required by
Part 6 of Subtitle B of Title I of ERISA or section 4980B of the Code or
any State laws requiring continuation of benefits coverage following
termination of employment.
(j) No material suit, action or other litigation (excluding
claims for benefits incurred in the ordinary course of plan activities)
has been brought or, to the knowledge of the Company or any Subsidiary,
threatened against or with respect to any Benefit Plan and there are no
facts or circumstances known to the Company or any Subsidiary that could
reasonably be expected to give rise to any such suit, action or other
litigation.
(k) All contributions to Benefit Plans that were required to be
made under such Benefit Plans have been made when due, and all benefits
accrued under any unfunded Benefit Plan have been paid, accrued or
otherwise adequately reserved in accordance with generally accepted
accounting principles and each of the Company and
<PAGE>
each Subsidiary has performed all material obligations required to be
performed under all Benefit Plans.
(l) The execution, delivery and performance of the Stock and
Warrant Purchase Agreements, the Stockholders' Agreement and the
Registration Rights Agreement and the consummation of the transactions
contemplated hereby and thereby (including, without limitation, the
offer, issue and sale by the Company, and the purchase by the Purchaser
of the Shares, the Conversion Shares, the Warrants and the Warrant
Shares) will not involve any "prohibited transaction" within the meaning
of ERISA or the Code.
4.10. Legal Compliance.
(a) Each of the Company and each Subsidiary has complied with
all applicable laws, rules, regulations, orders, licenses, judgments,
writs, injunctions, decrees or demands, except to the extent that failure
to so comply could not reasonably be expected to result in a Material
Adverse Effect.
(b) There are no adverse orders, judgments, writs, injunctions,
decrees or demands of any court or administrative body, domestic or
foreign, or of any other governmental agency or instrumentality, domestic
or foreign, outstanding against the Company or any Subsidiary which could
reasonably be expected to result in a Material Adverse Effect.
4.11. Outstanding Securities.
All securities (as defined in the Securities Act) of each of
the Company and the Subsidiaries have been offered, issued, sold and
delivered in compliance with, or pursuant to exemptions from, all
applicable federal and state laws, and the rules and regulations of
federal and state regulatory bodies governing the offering, issuance,
sale and delivery of securities.
4.12. Permits, Licenses and Approvals; Intellectual Property
and Other Rights.
To the knowledge of the Company, each of the Company and each
Subsidiary owns or possesses all franchises, licenses, permits, consents,
approvals and other authority (governmental or otherwise), patents,
patent rights, trademarks, trademark rights, trade names, trade name
rights and copyrights, and all rights and privileges with respect to any
of the foregoing, as are necessary for the conduct of its business as now
being conducted and as proposed to be conducted. Neither the Company nor
any Subsidiary is in default in any material respect under any of such
franchises, licenses,
<PAGE>
permits, consents, approvals or other authority. To the knowledge of the
Company, the rights of (and use by) each of the Company and each
Subsidiary with respect to such or any other patents, patent rights,
trademarks, trademark rights, trade names, trade name rights or
copyrights do not conflict with or infringe any rights of others in a
manner which could reasonably be expected to result in a Material Adverse
Effect and no such claim of conflict or infringement has been asserted by
any Person.
4.13. Properties.
Each of the Company and each Subsidiary has good and marketable
title to its real property. Certain real property used by the Company or
the Subsidiaries in the conduct of their respective businesses is held
under lease, and neither the Company nor any Subsidiary is aware of any
pending or threatened claim or action by any lessor of any such property
to terminate any such lease. All such leases are valid and in full force
and effect, and none of such leases is in default.
4.14. Environmental Compliance.
To the Company's knowledge, the Company (i) is not in violation
of any Environmental Laws in effect in any jurisdiction in which any
properties owned, operated or leased by the Company or any of its
Subsidiaries are located or where any of them conducts its business, (ii)
does not own, operate or lease any real property contaminated with any
Hazardous Materials, at levels or in amounts that require investigation
or remediation under any Environmental Laws, (iii) is not liable or
alleged to be liable for any off-site transportation, treatment, storage
or disposal of Hazardous Materials or contamination pursuant to any
Environmental Laws, and (iv) is not subject to any claim arising under
Environmental Laws, which violation, contamination, liability or claim
would individually or in the aggregate have a Material Adverse Effect,
and the Company is not aware of any pending investigation which might
lead to such a claim.
4.15. Offering of Shares and Warrants.
None of the Company, any Subsidiary, any agent or any other
person acting on its behalf, directly or indirectly, (i) offered any of
the Shares, the Warrants or any similar security of the Company (A) by
any form of general solicitation or general advertising (within the
meaning of Regulation D under the Securities Act) or (B) for sale to or
solicited offers to buy any thereof from, or otherwise approached or
negotiated with respect thereto with, any person other than the
Purchasers and other investors each of which the Company reasonably
believed was an "accredited investor" within the meaning of Regulation D
under the Securities Act or (ii) has done or caused to be done (or has
omitted to do or to cause to be done) any act which act (or which
omission) would result in bringing the issuance or sale of the Shares
within the provisions of Section 5 of the
<PAGE>
Securities Act or the filing, notification or reporting provisions of any
state securities laws.
4.16. SEC Reports.
The Company has filed all proxy statements, reports and other
documents required to be filed by it under the Securities Exchange Act.
The Company has furnished the Purchaser with copies of (i) its Annual
Report on Form 10-K for the fiscal year ended April 30, 1998, (ii) its
Quarterly Report on Form 10-Q for the fiscal quarters ended September 30,
1998 and December 31, 1998 and (iii) its Proxy Statement dated August 6,
1998 (collectively, the "SEC Reports"). Each SEC Report was in
substantial compliance with the requirements of its respective form and
none of the SEC Reports, nor the financial statements (and the notes
thereto) included in the SEC Reports, as of their respective dates or as
subsequently supplemented or amended, contained any untrue statement of a
material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
4.17. Indebtedness.
Exhibit B hereto sets forth (i) the amount of all Indebtedness
of the Company or any Subsidiary in excess of $1,000,000 outstanding on
the date hereof, (ii) any Lien with respect to such Indebtedness and
(iii) a list of each instrument or agreement governing such Indebtedness.
The Company has made available to the Purchaser a complete and correct
copy of each such instrument or agreement (including all amendments,
supplements or modifications thereto). No default exists with respect to
or under any such Indebtedness or any instrument or agreement relating
thereto and no event or circumstance exists with respect thereto that
(with notice or the lapse of time or both) would give rise to such a
default.
4.18. Use of Proceeds.
The Company will use the proceeds realized from the sale of the
Shares and the Warrants to repay debt, to fund future acquisitions, for
capital expenditures and for working capital and general corporate
purposes. No portion of such proceeds will be used for the purpose,
whether immediate, incidental or ultimate, of purchasing or carrying,
within the meaning of Regulation U of the Board of Governors of the
Federal Reserve System, as amended from time to time, any "margin stock"
as defined in said Regulation U, or for the purpose of purchasing,
carrying or trading in securities within the meaning of Regulation T of
the Board of Governors of the Federal Reserve System, as amended from
time to time, or for the purpose of reducing or retiring any indebtedness
which both (i) was originally incurred to purchase any such margin stock
or other
<PAGE>
securities and (ii) was directly or indirectly secured by such margin
stock or other securities. None of the assets of the Company or any
Subsidiary includes any such "margin stock."
4.19. Other Names.
The businesses previously or presently conducted by the Company
and the Subsidiaries have not been conducted under any corporate, trade
or fictitious name, other than those names listed on Exhibit B hereto.
4.20. Brokers.
No broker, finder or investment banker or other party is
entitled to any brokerage, finder's or other similar fee or commission in
connection with any Stock and Warrant Purchase Agreement, the
Stockholders' Agreement, the Registration Rights Agreement, the Warrant
Agreement or the Certificate of Designations or any of the transactions
contemplated hereby or thereby, based upon arrangements made by or on
behalf of the Company or any of its Subsidiaries or Affiliates.
SECTION 5. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser represents and warrants to the Company as follows
as of the date hereof and as of the Closing Date:
5.1. Corporate Power and Authority.
The Purchaser has all requisite power, authority and legal
right to execute, deliver, enter into, consummate the transactions
contemplated by and perform its obligations under this Agreement, the
Stockholders' Agreement and the Registration Rights Agreement. The
execution, delivery and performance of this Agreement, the Stockholders'
Agreement and the Registration Rights Agreement by the Purchaser have
been duly authorized by all required corporate and other actions. The
Purchaser has duly executed and delivered this Agreement, the
Stockholders' Agreement and the Registration Rights Agreement, and this
Agreement, the Stockholders' Agreement and the Registration Rights
Agreement constitute the legal, valid and binding obligations of the
Purchaser enforceable against the Purchaser in accordance with their
respective terms, subject to bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer and other similar laws relating to the
rights of creditors generally from time to time in effect and to general
principles of equity, including without limitation, concepts of
materiality, reasonableness, good faith and fair dealing, regardless of
whether in a proceeding in equity or at law.
<PAGE>
5.2. Investment Intent.
The Purchaser is purchasing the Shares and the Warrants to be
purchased by it for its own account for investment and not with a view to
any distribution thereof in violation of applicable securities laws;
provided, however, that the Purchaser may transfer record and/or
beneficial ownership of the Shares, the Conversion Shares, the Warrants
or the Warrant Shares to one or more Affiliates, officers or employees of
Affiliates or investment funds managed by Affiliates of the Purchaser so
long as such transfer is made in compliance with the Securities Act and
any applicable state securities laws. It is understood that the
disposition of the Purchaser's property shall at all times be within the
Purchaser's control. If the Purchaser should in the future decide to
dispose of any of its Shares, Conversion Shares, Warrants or Warrant
Shares, it is understood that it may do so only in compliance with the
Securities Act, applicable securities laws and this Agreement. The
Purchaser is an "accredited investor" as defined in Rule 501(a) under the
Securities Act.
5.3. Brokers.
No broker, finder or investment banker or other party is
entitled to any brokerage, finder's or other similar fee or commission in
connection with any Stock and Warrant Purchase Agreement, the
Stockholders' Agreement, the Registration Rights Agreement, the Warrant
Agreement or the Certificate of Designations or any of the transactions
contemplated hereby or thereby, based upon arrangements made by or on
behalf of the Purchaser or any of its Subsidiaries or Affiliates.
5.4. Access.
The Purchaser has had access to such financial and other
information, and has been afforded the opportunity to ask such questions
of representatives of the Company and its affiliates and receive answers
thereto, as the Purchaser deems necessary in connection with its decision
to purchase the Shares and the Warrants.
5.5 Purchaser Qualification.
(a) The Purchaser (alone or with the aid of his investment
advisors) has such knowledge and experience in financial and business
matters that the Purchaser is capable of evaluating the merits and risks
of its investment in the Shares and the Warrants;
(b) The Purchaser is able to bear the economic risk of an
investment in the Shares and the Warrants
<PAGE>
and has the ability to hold the Shares and the Warrants acquired by such
Purchaser indefinitely and the ability to suffer a complete loss of such
investment;
(c) The Purchaser has received and read a copy of the
Disclosure Materials (not including financial projections) describing the
Company, and has otherwise received sufficient information to enable the
Purchaser to evaluate the merits and risks of such investment in the
Shares and the Warrants;
(d) The Purchaser is familiar with the type of investment which
the Shares and the Warrants constitute and has reviewed the purchase of
the Shares and the Warrants subscribed for herein with tax and legal
counsel and investment representatives to the extent deemed advisable.
The Purchaser believes that the Shares and the Warrants are securities of
the kind such Purchaser wishes to acquire and that the nature of the
Shares and the Warrants and the amount of such Purchaser's investment are
consistent with such Purchaser's overall investment program and financial
position;
(e) All information the Purchaser has supplied to the Company
is true and accurate; and
(f) The Purchaser will immediately notify the Company if any of
the representations and warranties made herein become untrue.
SECTION 6. RESTRICTIONS ON TRANSFER
The Purchaser agrees that it will not sell or otherwise dispose
of any Shares, Conversion Shares, Warrants or Warrant Shares unless such
Shares, Conversion Shares, Warrants or Warrant Shares have been
registered under the Securities Act and, to the extent required, under
any applicable state securities laws, or pursuant to an applicable
exemption from such registration requirements. The Company may endorse on
all certificates evidencing Shares, Conversion Shares, Warrants or
Warrant Shares a legend stating or referring to such transfer
restrictions and require, as a condition to transfer, from the Purchasers
and any proposed transferee of the Purchaser such certifications, legal
opinions, or other information as the Company may reasonably require to
confirm that such transfer is being made in compliance with, pursuant to
an exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act or any state securities laws;
provided, that no such legend shall be endorsed on any such certificates
which, when issued, are no longer subject to the restrictions of this
Section 6.
<PAGE>
SECTION 7. INFORMATION AS TO THE COMPANY
The Company covenants and agrees as follows:
7.1. Financial Information.
(a) The Company will maintain, and cause each Subsidiary to
maintain, a system of accounting established and administered in accordance
with sound business practices to permit preparation of financial statements
in accordance with United States generally accepted accounting principles
consistently applied.
(b) So long as any of the Shares remain Outstanding, the Company
will deliver to each Purchaser without duplication of any of the items
listed below, the following:
(i) within ninety-five (95) days after the close of
each fiscal year of the Company, (A) an audited consolidated
balance sheet of the Company and its Subsidiaries as of the
end of such fiscal year and (B) audited consolidated
statements of operations, stockholders' equity and cash
flows of the Company and its Subsidiaries for such fiscal
year, in each case setting forth in comparative form the
corresponding figures for the preceding fiscal year; and
such statements shall be accompanied by a management
analysis of any material differences between the results for
such fiscal year and the corresponding figures for the
preceding year, provided that the delivery within such time
period of the Company's Form 10-K and annual report to each
Purchaser shall satisfy its obligation under this Section
7.1(b)(i);
(ii) as soon as practicable, copies (A) of all
financial statements, proxy material or reports sent to the
Company's or any Subsidiary's stockholders (other than
wholly owned Subsidiaries), (B) of any public press releases
and (C) of all reports or registration statements (without
exhibits) filed with the Commission pursuant to the
Securities Act or the Securities Exchange Act;
(iii) within fifty (50) days after the close of each of
the first three (3) fiscal quarters of the Company, (A) a
consolidated balance sheet of the Company and its
Subsidiaries as of the end of such fiscal quarter and (B)
consolidated statements of operations, stockholders' equity
and cash flows of the Company and its Subsidiaries for the
portion of the fiscal year ended with the end of such
quarter, in each case in reasonable detail, signed by the
Chief Financial Officer, Chief Executive Officer or the
<PAGE>
President of the Company and setting forth in comparative
form the corresponding figures for the comparable period
one year prior thereto (subject to normal year-end
adjustments), together with a management analysis of any
material differences between such results and the
corresponding figures for such prior period, provided that
the delivery within such time period of the Company's Form
10-Q shall satisfy its obligations under this Section
7.1(b)(iii);
(iv) within fifty (50) days after the close of each
fiscal quarter of the Company, a certificate of an officer
of the Company certifying the Company's compliance with
the covenants contained in Section 9 of this Agreement;
(v) as soon as practicable and without duplication of
any of the above items, any other materials furnished to
holders of the Company's Common Stock;
(vi) as soon as practicable, such other information
as may reasonably be requested by a Purchaser;
(vii) as soon as practicable, copies of management
letters with respect to the Company or its Subsidiaries or
their operations submitted to the Company by independent
public accountants;
(viii) as soon as practicable, copies of the annual
budget within 90 days after the beginning of each fiscal
year;
(ix) as soon as practicable, notice of default under
any material agreement, contract or other instrument to
which the Company or any of its Subsidiaries is a party or
by which any of them is bound; and
(x) as soon as practicable, any other information
that is sent to the Board of Directors that is deemed to
be materially important by the Company's management.
In lieu of the foregoing, the Company may deliver, as soon as
practicable, to each Purchaser any materials furnished to the Company's
lenders under the Credit Agreement so long as such materials include
information substantially similar to the information described in clauses
(i) to (x) of this Section 7.1(b).
The Company's obligations under this Section 7.1(b) and Section
7.2 shall terminate with respect to any Purchaser, if after any sale or
conversion of Shares by such Purchaser, such Purchaser ceases to hold a
number of Shares at least equal to or greater
than 10% of the number of Shares set forth opposite such Purchaser's name
on Schedule 1 hereto.
(c) All such financial statements referred to in this Section
7.1 shall be prepared in accordance with United States generally accepted
accounting principles consistently applied (except for any change in
accounting principles specified therein and except that any interim
financial statements may omit notes and may be subject to normal year-end
adjustments).
(d) Without limiting the foregoing provisions of this Section
7.1, the Company agrees that, if requested in writing by any Purchaser,
it will not deliver to such Purchaser (until otherwise instructed by such
Purchaser) (x) any non-public information or non- public materials
regarding the Company or any Subsidiary (whether described in this
Section 7.1 or otherwise) and (y) any information (whether or not
included in clause (x)) which such Purchaser specifies that it does not
want to receive. The Company shall comply with any such request with
respect to each such Purchaser until instructed otherwise by the
Purchaser.
7.2. Communication with Accountants.
With the prior written approval of the Company, and subject to
the terms and conditions set forth in such approval, the Purchaser may
communicate directly with the independent certified public accountants
for the Company or any Subsidiary and with the Company's prior written
consent may receive from such accountants any and all financial
statements and any other information of any kind that they may have with
respect to the assets, properties, liabilities, business, affairs,
results of operations, condition (financial or otherwise) or prospects of
the Company or any Subsidiary.
7.3. Inspection.
The Company will permit each holder of a Share and any
authorized representative of such holder to visit and inspect any of the
properties of the Company and its Subsidiaries, to examine their
respective books and records and to discuss with their officers their
books and records and the assets, properties, liabilities, business,
affairs, results of operations, condition (financial or otherwise) or
prospects of the Company or any Subsidiary, all at such reasonable times
and as often as may be reasonably requested.
<PAGE>
7.4. Notices.
The Company will give notice to all holders of Shares promptly
after it learns (other than by notice from all of such holders) of the
existence of any of the following:
(a) any default under any Indebtedness (or under any indenture,
mortgage or other agreement relating to any Indebtedness) which
Indebtedness is in an aggregate principal amount exceeding $200,000 (or
the equivalent thereof in other currencies) in respect of which the
Company or any Subsidiary is liable;
(b) any action or proceeding which has been commenced or
threatened against the Company or any of its Subsidiaries (i) which, if
adversely determined, would have, individually or in the aggregate, a
material adverse effect on the ability of the Company to perform its
obligations under the Stock and Warrant Purchase Agreements, the
Stockholders' Agreement, the Registration Rights Agreement, the Warrant
Agreement or the Certificate of Designations or (ii) which involves
primarily a claim for damages if the amount involved, exclusive of
interest and costs, exceeds $2,000,000;
(c) if any (i) "reportable event" (as such term is described in
Section 4043(c) of ERISA) has occurred; or (ii) "accumulated funding
deficiency" (within the meaning of Section 412(a) of the Code) has been
incurred with respect to a Pension Plan maintained or contributed to (or
required to be maintained or contributed to) by the Company or any ERISA
Affiliate that is subject to the funding requirements of ERISA and the
Code or that an application may be or has been made to the Secretary of
the Treasury for a waiver or modification of the minimum funding standard
(including any required installment payments) or an extension of any
amortization period under Section 412 of the Code, in each case with
respect to such a Pension Plan; or (iii) Pension Plan maintained or
contributed to (or required to be maintained or contributed to) by the
Company or any ERISA Affiliate has been terminated, reorganized,
petitioned or declared insolvent under Title IV of ERISA.
(d) Each of the Company and its Subsidiaries shall immediately
notify the holders of Shares, and provide copies upon receipt, of all
written claims, complaints, notices or inquiries from governmental
authorities relating to the condition of its facilities and properties or
compliance with Environmental Laws which could reasonably be expected to
have a Material Adverse Effect.
Such notice, (i) with respect to (a), shall specify the nature and period
of existence of any such default and what the Company proposes to do with
respect thereto and, (ii) with respect to (b), (c) or (d), shall specify
the nature of any such matter referred to in such clause, what action the
Company or any Subsidiary proposes to take with respect thereto
<PAGE>
and what action any other relevant Person is taking or proposes to take
with respect thereto.
7.5. Confidentiality.
(a) The Purchaser agrees to keep any information delivered or
made available by the Company pursuant to this Section 7 confidential
from anyone other than persons employed or retained by such Purchaser
(who shall be informed of and agree to maintain the confidentiality
obligation imposed by this Section 7.5); provided that nothing herein
shall prevent any Purchaser from disclosing such information (i) to any
of its Affiliates or any other Purchaser, (ii) upon the order of any
court or administrative agency or as otherwise required by law, (iii)
upon the request or demand of any regulatory agency or authority, (iv)
which had been publicly disclosed other than as a result of a disclosure
by the Purchaser prohibited by this Agreement, (v) in connection with any
litigation to which the Purchaser may be a party, (vi) to the extent
necessary in connection with the exercise of any remedy hereunder, or
(viii) to such Purchaser's legal counsel and independent auditors.
(b) The Purchaser agrees not to use any confidential
information delivered or made available by the Company pursuant to this
Section 7 to purchase or sell any securities of the Purchaser in a manner
or under circumstances that would violate the Securities Exchange Act.
SECTION 8. AFFIRMATIVE COVENANTS
The Company covenants and agrees as follows:
8.1. Maintenance of Existence, Properties and Franchises;
Compliance with Law; Taxes; Insurance.
The Company will, and will cause each Subsidiary to:
(a) maintain their respective corporate existence, rights and
other franchises in full force and effect; provided, that the Company may
terminate the corporate existence of any Subsidiary, or permit the
termination or abandonment of rights or other franchises, if in the
opinion of the Company it is no longer in the Company's best interests to
maintain such existence, rights or other franchises;
(b) maintain their respective tangible assets in good repair,
working order and condition so far as necessary or advantageous to the
proper carrying on of their respective businesses;
<PAGE>
(c) comply with all applicable laws and with all applicable
orders, rules, rulings, certificates, licenses, regulations, demands,
judgments, writs, injunctions and decrees; provided, that such compliance
shall not be necessary so long as (i) the applicability or validity of
any such law, order, rule, ruling, certificate, license, regulation,
demand, judgment, writ, injunction or decree shall be contested in good
faith by appropriate proceedings and (ii) failure to so comply could not
reasonably be expected to have a Material Adverse Effect;
(d) pay promptly when due all Taxes imposed upon its
properties, assets or income and all claims or indebtedness (including,
without limitation, vendor's, workmen's and like claims) which might
become a lien upon such properties or assets; provided, that payment of
any such Tax shall not be necessary so long as (i) the applicability or
validity thereof shall be contested in good faith by appropriate
proceedings and a reserve, if appropriate, shall have been established
with respect thereto and (ii) failure to make such payment could not
reasonably be expected to have a Material Adverse Effect; and
(e) keep adequately insured, by insurers of nationally
recognized stature, all its properties (excluding terminal equipment,
underground pipelines and above-ground storage tanks, all of which are
self-insured in a manner the Company believes to be fiscally prudent) of
a character customarily insured by entities similarly situated, against
loss or damage of the kinds and in amounts customarily insured against by
such entities and with such deductibles or coinsurance as is customary;
provided, however, that the Company may self-insure in a manner believed
to be fiscally prudent by the Company.
8.2. Environmental Matters.
Each of the Company and its Subsidiaries shall use and operate
all of its facilities and properties in material compliance with all
Environmental Laws, keep all Environmental Permits in effect and remain
in material compliance therewith, and handle all Hazardous Materials in
material compliance with all applicable Environmental Laws, except where
any failure to so act could not, individually or in the aggregate, have a
Material Adverse Effect.
SECTION 9. NEGATIVE COVENANTS
The Company covenants and agrees that without the prior written
consent of the holders of two-thirds of the outstanding Shares:
<PAGE>
9.1. No Dilution or Impairment; No Changes in Capital Stock.
The Company will not, by amendment of its certificate of
incorporation or through any consolidation, merger, reorganization,
transfer of assets, dissolution, issue or sale of securities or any other
voluntary action, avoid or seek to avoid the observance or performance of
any of the terms of the Stock and Warrant Purchase Agreements, the
Certificate of Designations, the Warrant Agreement, the Registration
Rights Agreement or the Stockholders' Agreement (it being understood that
the Company will not be prohibited from taking actions that are permitted
by the terms of such agreements). The Company (a) will not issue any
shares or class or series of equity or equity-linked security, which is
senior to, or pari passu with, the Series A Convertible Preferred Stock
as to dividend payments or amounts payable in the event of liquidation or
winding-up of the Company, (b) except as otherwise permitted by the
Certificate of Designations or the Warrant Agreement, will not redeem,
repurchase or otherwise acquire, either directly or indirectly through
any of its Subsidiaries, any shares of capital stock of the Company, or
any other rights or options to subscribe for or purchase any capital
stock of the Company, (c) will not permit the par value or the determined
or stated value of any shares of Common Stock receivable upon the
conversion of the Shares or exercise of the Warrants to exceed the amount
payable therefor upon such conversion, (d) will take all such action
within its control as may be necessary or appropriate in order that the
Company may at all times validly and legally issue duly authorized, fully
paid and non-assessable shares of the Common Stock free from all taxes,
Liens and charges with respect to the issue thereof, upon the conversion
of the Shares or exercise of the Warrants from time to time outstanding,
(e) will not take any action which results in any adjustment of the
current conversion price under the Certificate of Designations or the
current exercise price under the Warrant Agreement if the total number of
shares of the Common Stock (or other securities) issuable after the
action upon the conversion of all of the then outstanding Shares or the
exercise of all of the then outstanding Warrants would exceed the total
number of shares of Common Stock (or other securities) then authorized by
the Company's certificate of incorporation and available for the purpose
of issuance upon such conversion or exercise and (f) will not have any
authorized Common Stock (and will not issue any Common Stock) other than
its existing authorized Common Stock, par value per $.01 share.
9.2. Actions Prior to the Closing Date.
From the date hereof through the Closing Date, the Company will
not, and will not permit any Subsidiary to, (a) issue or agree to issue
any capital stock or any securities exercisable for, or convertible or
exchangeable into, capital stock or (b) purchase, redeem or otherwise
acquire any of its capital stock; provided, however, that this Section
9.2 shall not limit, or be applicable to, (i) the transactions
contemplated by the Stock and Warrant Purchase Agreements and (ii) grants
of options or issuances of
<PAGE>
Common Stock to officers, directors or employees of the Company pursuant
to the current terms of the Company's 1997 Option Plan.
9.3. Additional Issuances of Series A Convertible Preferred
Stock.
The Company will not issue in excess of 200,000 shares of
Series A Convertible Preferred Stock, other than shares of Series A
Convertible Preferred Stock issued in lieu of cash dividends on existing
shares of Series A Convertible Preferred Stock.
SECTION 10. PREEMPTIVE RIGHTS
(a) Except for (i) issuances of pro rata dividends to all
holders of Common Stock, (ii) stock issued to employees, officers or
directors in connection with management options or incentive plans
approved by the Board of Directors, (iii) stock issued in connection with
any merger, acquisition, business combination, joint venture, partnership
or limited liability company, (iv) stock issued for consideration
amounting to less than $1,000,000 in any single transaction where the
purchase price is not less than the then applicable Conversion Price;
provided, that the aggregate amount of all such transactions shall not
exceed $2,000,000 in any twelve (12) month period, or (v) issuances
pursuant to the Stock and Warrant Purchase Agreements, on conversion of
the Shares or exercise of the Warrants, the Institutional Investors, in
order to enable such holders to maintain their fully diluted percentage
ownership of the Company's Common Stock based solely on the Conversion
Shares, shall have preemptive rights, as hereinafter set forth, to
purchase any capital stock, including any warrants or securities
convertible into capital stock, of the Company hereafter issued by the
Company so that each Institutional Investor shall hereafter be entitled
to acquire a percentage of capital stock which is hereafter issued equal
to the same percentage of the issued and outstanding Common Stock of the
Company as is held (directly (but only as a result of conversion of
shares of Series A Convertible Preferred Stock) or obtainable upon
conversion of the Series A Convertible Preferred Stock) by such
Institutional Investor immediately prior to the date on which the capital
stock is to be issued. As used herein, "issue" (and variations thereof)
includes sales and transfers by the Company of treasury shares.
(b) The Company shall, before issuing any additional capital
stock (other than in accordance with the exceptions referred to in
Section 10(a) or 10(d) hereof), give written notice thereof to the
Institutional Investors. Such notice shall specify what type of
instrument the Company intends to issue and the consideration which the
Company intends to receive therefor. For a period of twenty (20) days
following receipt by the Institutional Investors of such notice, the
Company shall be deemed to have irrevocably offered to sell to each
Institutional Investor a sufficient
<PAGE>
number of shares of such capital stock so that such holder, if such
Institutional Investor elects to acquire such shares as hereinafter set
forth, shall be capable of acquiring the same percentage of such shares
as the percentage of Common Stock beneficially owned (directly (but only
as a result of conversion of shares of Series A Convertible Preferred
Stock) or obtainable upon conversion of the Series A Convertible
Preferred Stock) by such Institutional Investor at the time of such
notice. In the event any such offer is accepted, in whole or in part, by
an Institutional Investor, the Company shall sell such shares (which
number may be adjusted downward on a pro rata basis if the original
number of shares proposed to be issued is reduced) to such holder for the
consideration and on the terms set forth in the Company's notice (given
under the first two sentences of this paragraph). In the event that one
or more Institutional Investors elects not to, or fails to, exercise its
rights under this Section 10 within the twenty (20) day period, then the
Company may issue the shares of capital stock offered to, but not
purchased by, such Institutional Investors to third persons but only for
the same consideration set forth in the Company's notice (given under the
first two sentences of this paragraph) and no later than sixty (60) days
after the expiration of such twenty day period. The closing for such
transaction shall take place as proposed by the Company with respect to
the shares of capital stock proposed to be issued, at which closing the
Company shall deliver certificates for the shares of capital stock or
other securities in the respective names of the Institutional Investors
against receipt of the consideration therefor.
(c) Notwithstanding any other provision hereof, in the event
that the Company has granted preemptive rights to holders of its
securities, other than the Series A Convertible Preferred Stock, the
preemptive rights of the Institutional Investors created hereby will be
applicable only in the case of the initial issuance of capital stock to
such holders of securities other than the Series A Convertible Preferred
Stock. Notwithstanding any other provision hereof, the preemptive rights
granted to Institutional Investors by this Section 10 shall terminate
with respect to a share of Series A Convertible Preferred Stock upon the
transfer (other than a transfer to an Affiliate of the Institutional
Investor), conversion or redemption of such share of Series A Convertible
Preferred Stock in accordance with the provisions hereof or the
Certificate of Designations.
(d) Notwithstanding any other provision hereof, if the Company
proposes to issue any capital stock pursuant to a registered public
offering or in any other transaction involving a financial intermediary
acting as an initial purchaser or placement agent of such capital stock
(an "Intermediated Offering"), then the Company shall, (i) at the
commencement of such offering give written notice thereof to the
Institutional Investors indicating the proposed aggregate amount and type
of capital stock proposed to be issued and (ii) on entering into an
underwriting, purchase or other agreement setting forth the terms of the
sale of such capital stock, (A) give written notice to the Institutional
Investors indicating such terms and (B) offer to sell (on a private
placement
<PAGE>
basis) for a period of twenty (20) days such number of shares of such
capital stock as would represent the same percentage of the sum of (1)
the total number of shares sold in the Intermediated Offering and (2) the
total number of shares offered to Institutional Investors pursuant to
this Section 10 as the number of shares of Common Stock beneficially
owned (directly (but only as a result of conversion of Series A
Convertible Preferred Stock) or obtainable upon conversion of Series A
Convertible Preferred Stock) by such Institutional Investor represent of
the total number of shares of Common Stock outstanding, in each case at
the time of the notice given pursuant to this clause (ii). If such offer
is accepted, in whole or in part, by an Institutional Investor, the
Company shall sell such shares to such Institutional Investor for the
price paid by investors in the Intermediated Offering. In the event that
one or more Institutional Investors elects not to, or fails to, exercise
its rights under this Section 10 within the twenty (20) day period, then
the Company may issue the shares of capital stock offered to, but not
purchased by, such Institutional Investors to third persons but only for
the same consideration set forth in the Company's notice (given under the
first two sentences of this paragraph) and no later than sixty (60) days
after the expiration of such twenty day period. The closing for any sales
to Institutional Investors made pursuant to this clause (d) shall occur
on the third business day following the expiration of the 20-day offer
period or on such earlier date as the holders of the Series A Convertible
Preferred Stock and the Company agree, at which closing the Company shall
deliver certificates for the shares of capital stock in the respective
names of the Institutional Investors exercising their preemptive rights
against receipt of the consideration therefor.
(e) Any offer and sale of securities to Institutional Investors
pursuant to this Section 10 will be subject to compliance with the
Securities Act and customary closing conditions, including opinions as to
an exemption from the registration requirements of the Securities Act.
SECTION 11. CONDITIONS TO PURCHASER'S OBLIGATIONS
The Purchaser's obligation to purchase Shares and Warrants
hereunder is subject to satisfaction of the following conditions at the
Closing (any of which may be waived by the Purchaser):
11.1. Certificate of Designations; Stockholders' Agreement;
Registration Rights Agreement.
(a) The certificate of incorporation of the Company shall have
been duly amended by the filing of the Certificate of Designations in the
form of Exhibit A-1 hereto.
<PAGE>
(b) The Company, the Institutional Investors and certain
officers of the Company named therein shall have entered into a
Stockholders' Agreement substantially in the form of Exhibit C hereto.
(c) The Company shall have entered into a Registration Rights
Agreement with the Purchasers substantially in the form of Exhibit D
hereto.
11.2. Certificates for Shares and Warrants.
The Purchaser shall concurrently receive the certificates for
Shares and Warrants contemplated by Section 2(b) hereof.
11.3. Accuracy of Representations and Warranties.
The representations and warranties of the Company contained in
the Stock and Warrant Purchase Agreement or in any certificate or
document delivered pursuant hereto shall be true and correct on and as of
the Closing Date with the same effect as though made on and as of the
Closing Date.
11.4. Compliance with Agreements.
The Company shall have performed and complied in all material
respects with all agreements, covenants and conditions contained in the
Stock and Warrant Purchase Agreements and any other document contemplated
hereby or thereby which are required to be performed or complied with by
the Company on or before the Closing Date.
11.5. Officers' Certificates.
The Purchaser shall have received a certificate dated the
Closing Date and signed by the President or Chief Executive Officer and
by the Secretary or the Treasurer of the Company, to the effect that the
conditions of Sections 11.1(a), 11.3, 11.4 and 11.8 have been satisfied.
11.6. Proceedings.
All corporate and other proceedings in connection with the
transactions contemplated by the Stock and Warrant Purchase Agreements,
and all documents incident thereto, shall be in form and substance
satisfactory to the Purchaser and its counsel, and the Purchaser shall
have received all such originals or certified or other copies of such
documents as the Purchaser or its counsel may reasonably request.
<PAGE>
11.7. Legality; Governmental and Other Authorization.
The purchase of and payment for the Shares and the Warrants
shall not be prohibited by any law or governmental order, rule, ruling,
regulation, release, interpretation or opinion applicable to the
Purchaser and shall not subject the Purchaser to any penalty, tax,
liability or other onerous condition. Any necessary consents, approvals,
licenses, permits, orders and authorizations of, and any filings,
registrations or qualifications with, any governmental or administrative
agency or other Person, with respect to the transactions contemplated by
the Stock and Warrant Purchase Agreements, shall have been obtained or
made and shall be in full force and effect. The Company shall have
delivered to the Purchaser, upon its reasonable request setting forth
what is required, factual certificates or other evidence, in form and
substance reasonably satisfactory to the Purchaser and its special
counsel, to enable the Purchaser to establish compliance with this
condition.
11.8. No Material Adverse Change.
There shall have been no material adverse change in the assets,
properties, liabilities, business, affairs, results of operations,
condition (financial or otherwise) or prospects of the Company on a
consolidated basis since January 31, 1999.
11.9. Opinion of Counsel.
The Purchaser shall have received opinions, dated the Closing
Date and addressed to the Purchasers, of Cravath, Swaine & Moore, as
counsel for the Company, and of Erik B. Carlson, general counsel of the
Company, which opinions shall be in form and substance satisfactory to
the Purchaser and its counsel and shall be to the effect set forth in
Exhibit E hereto.
11.10. Additional Purchases of Shares and Warrants.
The sale and purchase of Shares and Warrants for an aggregate
purchase price of not less than $50,000,000 by the Purchasers pursuant to
the Stock and Warrant Purchase Agreements between each of the Purchasers
and the Company shall be or shall have been consummated.
11.11. Other Documents.
The Purchaser shall have received such other documents, in form
and substance satisfactory to the Purchaser and its counsel, relating to
matters incident to the transactions contemplated hereby as the Purchaser
may reasonably request.
<PAGE>
SECTION 12. INDEMNIFICATION FOR BREACH OF REPRESENTATIONS, WARRANTIES AND
COVENANTS AND INDEMNIFICATION FOR ENVIRONMENTAL LIABILITIES
(a) The representations, warranties, covenants and agreements
of the Company and the Purchaser contained in this Agreement, the
Registration Rights Agreement or in any document or certificate delivered
pursuant hereto or thereto or in connection herewith shall survive, and
shall continue in effect following, the execution and delivery of the
Stock and Warrant Purchase Agreements, the Registration Rights Agreement,
the closing hereunder and thereunder, any investigation at any time made
by the Purchaser or on its behalf or by any other Person, the issuance,
sale and delivery of the Shares or the Warrants, any disposition thereof
and any payment, conversion or cancellation of the Shares; provided, that
Section 9 shall terminate upon conversion of all of the Shares. All
statements contained in any certificate or other document delivered by or
on behalf of the Company pursuant hereto shall constitute representations
and warranties by the Company hereunder.
(b) The Company agrees to indemnify and hold the Purchaser
harmless from and against and will pay to the Purchaser the full amount
of any loss, damage, liability or expense (including amounts paid in
settlement and reasonable attorneys' fees and expenses) to the Purchaser
resulting either directly or indirectly from any breach of the
representations, warranties, covenants or agreements of the Company
contained in this Stock and Warrant Purchase Agreement, or in the
Registration Rights Agreement or any other document or certificate
delivered pursuant hereto or thereto or in connection herewith or
therewith; provided, however, that the Company shall not be required to
indemnify the Purchaser or any other indemnified party for any diminution
in the value of the Shares, the Conversion Shares, the Warrants or the
Warrant Shares.
(c) The Company will defend, indemnify and hold harmless each
current, former and future holder of Shares or Warrants, its employees,
officers, directors, stockholders, partners, agents, representatives and
assigns, from and against any judgments, suits and claims, joint or
several, and any loss, damage, liability and expense (including
attorneys' fees and expenses and costs of investigation) arising out of
(i) the presence, disposal, release, removal, discharge, storage or
transportation of any Hazardous Material upon, into, from or affecting
any real property (including improvements) currently or formerly owned,
leased, operated or occupied by the Company or any Subsidiary; (ii) any
judicial or administrative action, suit or proceeding, actual or
threatened, relating to Hazardous Material upon, in, from or affecting
any real property (including improvements) currently or formerly owned,
leased, operated or occupied by the Company or any Subsidiary; (iii) any
violation of any Environmental Law by the Company or any Subsidiary or
any of their agents, tenants, subtenants or invitees; (iv) the imposition
of any Environmental Lien for the recovery of costs
<PAGE>
expended in the investigation, study or remediation of any environmental
liability of (or asserted against) the Company or any Subsidiary; and (v)
any liability arising out of or related to the off-site shipment,
disposal, treatment, handling, storage or transportation of Hazardous
Materials; provided, however, that the Company shall not be required to
indemnify the Purchaser or any other indemnified party for any diminution
in the value of the Shares, the Conversion Shares, the Warrants or the
Warrant Shares. This Section 12(c) shall survive any payment, conversion
or transfer of Shares or Warrants and any termination of this Agreement.
SECTION 13. EXPENSES
(a) Whether or not the transactions herein contemplated are
consummated, the Company will pay (i) the costs, fees and expenses of the
Company and its counsel in connection with the Stock and Warrant Purchase
Agreements, the Certificate of Designations, the Warrant Agreement, the
Stockholders' Agreement and the Registration Rights Agreement and the
issuance of the Shares, the Conversion Shares, the Warrants and the
Warrant Shares and the furnishing of all opinions by counsel for the
Company, (ii) the fees and expenses of Morgan, Lewis & Bockius LLP in
connection with the drafting, negotiation and execution of the Stock and
Warrant Purchase Agreements, the Certificate of Designations, the Warrant
Agreement, the Stockholders' Agreement and the Registration Rights
Agreement and the transactions contemplated hereby and thereby and the
closing of the transactions contemplated hereby (whether or not a closing
occurs hereunder and if a closing occurs the Company will make such
payment on the Closing Date); provided, however, that such fees and
expenses shall not exceed $80,000 without the prior written approval of
the Company.
(b) In addition to all other sums due hereunder or provided for
in this Agreement, the Company shall pay to the Purchaser or its agents,
respectively, an amount sufficient to indemnify such persons (net of any
Taxes on any indemnity payments) against all reasonable costs and
expenses (including reasonable attorneys' fees and expenses and
reasonable costs of investigation) and damages and liabilities incurred
by the Purchaser or its agents pursuant to any investigation or
proceeding (other than an investigation or proceeding initiated by a
Purchaser) against any or all of the Company, the Purchasers, or their
agents, arising out of or in connection with the Stock and Warrant
Purchase Agreements, the Stockholders' Agreement, or purchase of the
Shares or the Warrants (or any transaction contemplated hereby or thereby
or any other document or instrument executed herewith or therewith or
pursuant hereto or thereto), whether or not the transactions contemplated
by this Agreement are consummated, which investigation or proceeding
requires the participation of the Purchaser or its agents or is commenced
or filed against the Purchaser or its agents because of the Stock and
Warrant Purchase Agreements, the Stockholders' Agreement, the purchase of
the Shares or the
<PAGE>
Warrants or any of the transactions contemplated hereby or thereby (or
any other document or instrument executed herewith or therewith or
pursuant hereto or thereto), other than any investigation or proceeding
in which it is finally determined that there was gross negligence or
willful misconduct on the part of the Purchaser or its agents. The
Company shall assume the defense, and shall have its counsel represent
the Purchaser and such agents, in connection with investigating,
defending or preparing to defend any such action, suit, claim or
proceeding (including any inquiry or investigation); provided, however,
that the Purchaser, or any such agent, shall have the right (without
releasing the Company from any of its obligations hereunder) to employ
its own counsel and either to direct its own defense or to participate in
the Company's defense, but the fees and expenses of such counsel shall be
at the expense of such person unless (i) the employment of such counsel
shall have been authorized in writing by the Company in connection with
such defense, (ii) the Company shall not have provided its counsel to
take charge of such defense or (iii) the Purchaser, or such agent of the
Purchaser, shall have reasonably concluded that there may be defenses
available to it or them which are different from or additional to those
available to the Company, then in any of such events referred to in
clauses (i), (ii) or (iii) such reasonable counsel fees and expenses (but
only for one counsel for the Purchasers and their agents) shall be borne
by the Company. Any settlement of any such action, suit, claim or
proceeding shall require the consent of both the Company and such
indemnified person (neither of which shall unreasonably withhold its
consent).
(c) The Company agrees to pay, or to cause to be paid, all
documentary, stamp and other similar Taxes levied under the laws of the
United States of America, any state or local Taxing Authority thereof or
therein or any other applicable jurisdiction in connection with the
issuance and sale of the Shares or the Warrants to the Purchasers and the
execution and delivery of the Stock and Warrant Purchase Agreements, the
Stockholders' Agreement, the Registration Rights Agreement and any other
documents or instruments contemplated hereby or thereby and any
modification of the Certificate of Designations, the Warrant Agreement,
the Stockholders' Agreement, the Registration Rights Agreement or the
Stock and Warrant Purchase Agreements or any such other documents or
instruments and will hold the Purchaser harmless without limitation as to
time against any and all liabilities with respect to all such Taxes.
(d) The obligations of the Company under this Section 13 shall
survive the Closing hereunder and any termination of the Stock and
Warrant Purchase Agreements.
SECTION 14. DIRECT PAYMENTS
As long as the Purchaser or any institutional holder which is a
direct or indirect transferee (as a result of one or more transfers) from
the Purchaser shall be the holder of any Shares, the Company will make
all redemption payments, liquidation payments and other distributions by
wire transfer to the Purchaser's or such other holder's (or its
nominee's) account at any bank or trust company in the United States,
notwithstanding any contrary provision herein or in the Company's
certificate of incorporation with respect to the place of payment. The
Purchaser has provided an address on Schedule 1 hereto for payments by
wire transfer, and such address may be changed for the Purchaser or any
subsequent holder by notice to the Company. All such payments shall be
made in U.S. dollars and in federal or other immediately available funds.
SECTION 15. AMENDMENTS AND WAIVERS
(a) The terms and provisions of this Agreement may be amended,
waived, modified or terminated only with the written consent of (1) the
Company and (2) either (A) the Purchaser or (B) in the case of an
amendment, waiver, modification or termination applicable to all Stock
and Warrant Purchase Agreements, the holders of two-thirds of the
outstanding Shares; provided, however, that no such amendment, waiver,
modification or termination shall change this Section 15(a) without the
written consent of the holders of all the Shares and the Warrants then
outstanding.
(b) The Company agrees that all holders of Shares and Warrants
shall be notified by the Company in advance of any proposed amendment,
waiver, modification or termination of this Agreement, but failure to
give such notice shall not in any way affect the validity of any such
amendment, waiver, modification or termination. In addition, promptly
after obtaining the written consent of the holders as herein provided,
the Company shall transmit a copy of any amendment, waiver, modification
or termination which has been adopted to all holders of Shares and
Warrants then outstanding, but failure to transmit copies shall not in
any way affect the validity of any such amendment, waiver, modification
or termination.
SECTION 16. NOTICES
All notices, requests, demands, consents and other
communications hereunder shall be in writing and shall be delivered by
hand or shall be sent by telex or telecopy (confirmed by registered,
certified or overnight mail or courier, postage and delivery charges
prepaid), (i) if to the Company, to TransMontaigne Inc., 370
<PAGE>
Seventeenth Street, Suite 2750, Denver, CO 80202, Attention: Erik B.
Carlson, with a copy to Cravath, Swaine & Moore, Worldwide Plaza, 825
Eighth Avenue, New York, NY 10019-7475, Attention: Kris F. Heinzelman or
(ii) if to the Purchaser, at the addresses indicated on Schedule 1 hereto
or at such other address as a party may from time to time designate as
its address in writing to the other party to this Agreement. Whenever any
notice is required to be given hereunder, such notice shall be deemed
given and such requirement satisfied only when such notice is delivered
or, if sent by telex or telecopier, when received.
SECTION 17. MISCELLANEOUS
(a) The Stock and Warrant Purchase Agreements, the
Stockholders' Agreement, the Registration Rights Agreement, the
Certificate of Designations and the Warrant Agreement contain the entire
agreement between the Purchaser and the Company, and supersede any prior
oral or written agreements, commitments, terms or understandings,
regarding the subject matter hereof.
(b) Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
(c) This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and
assigns, whether so expressed or not; provided, however, that (other than
with respect to a transfer to an Affiliate of the Purchaser) no party to
this Agreement may assign any of its rights, duties or obligations under
this Agreement without the other party's prior written consent, which
consent shall not be unreasonably withheld. The Purchaser shall provide
the Company with reasonable notice of any transfer to an Affiliate. Other
than with respect to a transfer to an Affiliate of the Institutional
Investor, the preemptive rights set forth in Section 10 are not
transferable.
(d) If permitted pursuant to Section 17(c), the Purchaser may
assign, in whole or in part, any or all of its rights (and/or
obligations) under this Agreement to any permitted transferee of any or
all of its Shares or Warrants, and (unless such assignment expressly
provides otherwise) any such assignment shall not diminish the rights the
Purchaser would otherwise have under this Agreement or with respect to
any remaining Shares or Warrants held by the Purchaser.
<PAGE>
(e) No course of dealing and no delay on the part of any party
hereto in exercising any right, power, or remedy conferred by this
Agreement shall operate as a waiver thereof or otherwise prejudice such
party's rights, powers and remedies. No single or partial exercise of any
right, power or remedy conferred by this Agreement shall preclude any
other or further exercise thereof or the exercise of any other right,
power or remedy.
(f) Each party (each a "Disclosing Party") to this Agreement
agrees that it will not issue any press releases or other public
disclosure using the name of the other party or any of its Affiliates
without at least two (2) Business Days' prior written notice to the other
party and without the prior written consent of the other party unless the
Disclosing Party is required to do so under law and then, in any event,
the Disclosing Party or its Affiliate will consult with the other party
before issuing such press release or other public disclosure and with as
much advance notice to the other party as is reasonably practicable under
the circumstances.
(g) The headings and captions in this Agreement are for
convenience of reference only and shall not define, limit or otherwise
affect any of the terms or provisions hereof.
(h) This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York (other than any
conflict of laws rule which might result in the application of the laws
of any other jurisdiction).
(i) This Agreement may be executed by the parties hereto in
separate counterparts, each of which when so executed and delivered shall
be an original, but all such counterparts shall together constitute one
and the same instrument, and all signatures need not appear on any one
counterpart.
(j) THE PARTIES HEREBY CONSENT TO THE JURISDICTION OF ANY STATE
OR FEDERAL COURT LOCATED WITHIN THE COUNTY OF NEW YORK, STATE OF NEW YORK
AND IRREVOCABLY AGREE THAT ALL ACTIONS OR PROCEEDINGS RELATING TO THIS
AGREEMENT, THE CERTIFICATE OF DESIGNATIONS, THE WARRANT AGREEMENT, THE
STOCKHOLDERS' AGREEMENT, THE SHARES OR THE CONVERSION SHARES WILL BE
LITIGATED IN SUCH COURTS. THE PARTIES ACCEPT FOR THEMSELVES AND IN
CONNECTION WITH THEIR PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE
NONEXCLUSIVE JURISDICTION OF THE
AFORESAID COURTS AND WAIVE ANY DEFENSE OF FORUM NON CONVENIENS.
(k) THE COMPANY AND THE PURCHASER HEREBY WAIVE THEIR RESPECTIVE
RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR
ARISING OUT OF THIS AGREEMENT, THE CERTIFICATE OF DESIGNATIONS, THE
WARRANT AGREEMENT, THE STOCKHOLDERS' AGREEMENT, THE SHARES OR THE
CONVERSION SHARES, OR ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT
MATTER OF THIS TRANSACTION. THE SCOPE OF THIS WAIVER IS INTENDED TO BE
ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT
AND THAT RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION, INCLUDING,
WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS,
AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. THE COMPANY AND THE
PURCHASER FURTHER WARRANT AND REPRESENT THAT EACH HAS REVIEWED THIS
WAIVER WITH ITS LEGAL COUNSEL, AND THAT EACH KNOWINGLY AND VOLUNTARILY
WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL.
THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER
ORALLY OR IN WRITING, AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT
AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO (OR ASSIGNMENTS OF)
THIS AGREEMENT, THE CERTIFICATE OF DESIGNATIONS, THE WARRANT AGREEMENT,
THE STOCKHOLDERS' AGREEMENT, THE SHARES OR THE CONVERSION SHARES. IN THE
EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO
A TRIAL (WITHOUT A JURY) BY THE COURT.
<PAGE>
[remainder of page intentionally left blank]
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed as of the date first above written.
TRANSMONTAIGNE INC.
By
---------------------
Name:
Title:
Accepted and Agreed to as of the
date first above written by the
undersigned Purchaser:
By
-----------------------------
Name:
Title:
<PAGE>
Exhibit 99.3
TRANSMONTAIGNE INC.
CERTIFICATE OF DESIGNATIONS
OF
SERIES A CONVERTIBLE PREFERRED STOCK
------------------------------------
Pursuant to Section 151(g) of the Delaware General Corporation Law
The undersigned officer hereby certifies that:
A. He is the duly elected and acting chief executive officer of
TRANSMONTAIGNE INC., a Delaware corporation (the "Corporation").
B. On March 17, 1999, the Board of Directors of the Corporation
duly adopted resolutions in order to designate the Series A Preferred Stock
(as set forth in the resolution below).
C. The resolution set forth below has not been modified, altered
or amended and is presently in full force and effect.
RESOLVED, that pursuant to the authority expressly vested in the
Board of Directors of the Corporation by Article 5.3 of the Certificate of
Incorporation of the Corporation, the Board of Directors hereby fixes and
determines the voting rights, designations, preferences, qualifications,
privileges, limitations, restrictions, options, conversion rights and other
special and relative rights of a series of the preferred stock, par value
$.01 per share, which shall be designated as Series A Convertible Preferred
Stock (the "Series A Preferred Stock").
Certain defined terms used herein are set forth in Section 12
hereof.
1. Designation. 250,000 shares of preferred stock, par value $.01
per share, of the Corporation are hereby constituted as a series of the
preferred stock designated as "Series A Convertible Preferred Stock."
2. Dividends.
(a) Cash Dividends on Series A Preferred Stock. The
Corporation shall pay, when and as declared by the Corporation's Board of
<PAGE>
Directors, to the holders of the Series A Preferred Stock, out of the assets
of the Corporation legally available therefor, cash dividends (subject to
Section 2(a)(vi) hereof) at the times, in the amounts and with such priorities
as follows:
(i) Dividend Rate. Dividends on shares of Series A Preferred Stock
will be payable in arrears in cash at a rate per annum equal to 5% of the
Preferred Liquidation Value thereof on the Dividend Payment Date.
Dividends will be calculated on the basis of a 360 day year consisting
of twelve months of thirty days each in a year. If the Corporation
fails to exercise on December 31, 2003 the redemption option set forth
in Section 6(a) hereof, then the cash dividend payable on the Series A
Preferred Stock shall increase, commencing January 1, 2004, to a rate
per annum equal to 16% of the Preferred Liquidation Value, provided,
that the increased dividend rate shall apply only if Series A
Preferred Stock remains outstanding after December 31, 2003.
(ii) Accrual of Dividends.
(A) Dividends on each share of Series A Preferred Stock
shall accrue cumulatively on a daily basis from the Issue Date to
the date on which the redemption or conversion of such share of
Series A Preferred Stock shall have been effected, whether or not
such dividends have been declared and whether or not there shall
be (at the time such dividends became or become payable or any
other time) profits, surpluses or other funds of the Corporation
legally available for the payment of dividends.
(B) To the extent not paid on any Dividend Payment Date for
any reason other than the Corporation's compliance with Section
2(b) hereof, all dividends which have accrued on any share of
Series A Preferred Stock then outstanding during the period from
and including the preceding Dividend Payment Date (or from and
including the Issue Date in the case of the initial Dividend
Payment Date) to (but excluding) such Dividend Payment Date shall
be added on such Dividend Payment Date to the Preferred
Liquidation Value of such share of Series A Preferred Stock (so
that, without limitation, dividends shall thereafter accrue in
respect of the amount of such accrued but unpaid dividends) and
shall remain a part thereof until (but only until) such dividends
are paid. The "Preferred Liquidation Value" of any share of
Series A Preferred Stock as of a particular date shall be equal
to the sum of $1,000 plus an amount equal to any accrued and
unpaid dividends on such share of Series A Preferred Stock added
to the Preferred Liquidation Value of such share of Series A
Preferred Stock on any Dividend Payment Date pursuant to this
Section 2(a)(ii)(B) and not thereafter paid.
<PAGE>
(iii) Payment Dates. Full cumulative dividends on the Series
A Preferred Stock shall be payable quarterly, on the last day of
March, June, September and December in each year (each, a
"Dividend Payment Date"). The first Dividend Payment Date shall
be June 30, 1999. If any Dividend Payment Date shall be on a day
other than a Business Day, then the Dividend Payment Date shall
be on the next succeeding Business Day. An amount equal to the
full cumulative dividends shall also be payable, in satisfaction
of such dividend obligation, upon liquidation as provided under
Section 3 hereof, and upon redemption as provided under Section 6
hereof. The Board of Directors may fix a record date for the
determination of holders of shares of Series A Preferred Stock
entitled to receive payment of the dividends payable pursuant to
this Section 2, which record date shall not be more than 60 days
prior to the Dividend Payment Date.
(iv) Amounts Payable. The amount of dividends payable on
Series A Preferred Stock on each Dividend Payment Date shall be
the full cumulative dividends which are unpaid through and
including such Dividend Payment Date. Dividends which are not
paid for any reason whatsoever on a Dividend Payment Date shall
cumulate until paid and shall be payable on the next Dividend
Payment Date on which payment can lawfully be made (or upon
liquidation or redemption as provided herein). Holders of shares
of Series A Preferred Stock called for redemption on a redemption
date falling between the close of business on a dividend payment
record date and the opening of business on the corresponding
Dividend Payment Date shall, in lieu of receiving such dividend
payment on the Dividend Payment Date fixed therefor, receive an
amount equal to such dividend payment (consisting of all accumulated
and unpaid dividends through the redemption date) on the date fixed
for redemption. If for whatever reason all payments have not been
made with respect to any share of Series A Preferred Stock as
required by Section 3 on a distribution date or all payments have
not been made with respect to any share of Series A Preferred Stock
as required by Section 6 on a redemption date (other than because
of a failure by the holder thereof to tender such shares for payment
on such date), then, notwithstanding any other provision hereof,
dividends shall continue to accumulate on such outstanding shares
until paid.
(v) Compliance with Section 2(a)(vi) or 2(b). Notwithstanding
any other provision hereof, any dividend not paid by the Corporation
under this Section 2(a) because of the Corporation's compliance
with Section 2(a)(vi) or 2(b) will be deemed paid under the provision
of this Certificate of Designations.
(vi) Notwithstanding any other provision hereof, in the
event that the Corporation is contractually prohibited or restricted
<PAGE>
from paying dividends on the Series A Preferred Stock in
full in cash, such dividends may be paid, in whole or in part, at
the Corporation's option, by the distribution to the holders of
the Series A Preferred Stock of additional shares of Series A
Preferred Stock ("Additional Preferred Shares") to the extent of
such prohibition. The number of Additional Preferred Shares
issued in lieu of such cash payment shall be determined by (A)
dividing (1) the amount in cash that was payable on the Dividend
Payment Date (in accordance with Section 2(a)) but not paid by
(2) the Liquidation Value and (B) multiplying the result by 110%.
(b) Dividends on Common Stock. In the event that (i) the
Corporation shall at any time or from time to time declare, order, pay or
make a dividend or other distribution (whether in cash, securities, rights
to purchase securities or other property) on its Common Stock and (ii) such
dividend or other distribution exceeds on a per share Common Stock
equivalent basis the amount payable on a share of Series A Preferred Stock
on the Dividend Payment Date immediately following the declaration of such
dividend or other distribution on the Common Stock, the holders of the
Series A Preferred Stock shall receive, in lieu of the dividend payable
under Section 2(a) on such Dividend Payment Date, from the Corporation,
with respect to each share of Series A Preferred Stock held, a dividend or
distribution that is the same dividend or distribution that would be
received by a holder of the number of shares of Common Stock into which
such share of Series A Preferred Stock is convertible pursuant to the
provisions of Section 5 hereof on the record date for such dividend or
distribution with respect to Common Stock; provided, however, that if such
dividend or distribution on the Common Stock would have resulted in an
adjustment to the Conversion Price pursuant to Section 5(d) (i) (but for
the last sentence of Section 5(d) (i)), the Company shall also pay to the
holders of the Series A Preferred Stock the dividend payable under Section
2(a) on such Dividend Payment Date. Any such dividend or distribution shall
be declared, ordered, paid or made on the Series A Preferred Stock at the
same time such dividend or distribution is declared, ordered, paid or made
on the Common Stock.
(c) Limitation on Dividends, Repurchases and Redemptions. So
long as any shares of Series A Preferred Stock shall be outstanding, the
Corporation shall not declare or pay or set apart for payment any dividends
or make any other distributions on any Junior Securities, whether in cash,
securities, rights to purchase securities or other property (other than
dividends or distributions payable in shares of the class or series upon
which such dividends or distributions are declared or paid), nor shall the
Corporation or any of its Subsidiaries purchase, redeem or otherwise
acquire for any consideration or make payment on account of the purchase,
redemption or other retirement of any Parity Securities or Junior
Securities, nor shall any monies be paid or made available for a sinking
fund for the purchase or redemption of any Parity Securities or Junior
Securities, unless with respect to all of the foregoing all dividends or
other distributions to which the holders of Series A Preferred Stock shall
have been entitled, pursuant to Sections 2(a) and 2(b) hereof, shall have
been paid or declared and a sum of money has been set apart for the full
payment thereof.
(d) Pro Rata Payments. In the event that full dividends are
not paid or made available to the holders of all outstanding shares of
Series A Preferred Stock and of any Parity Securities and funds available
<PAGE>
for payment of dividends shall be insufficient to permit payment in full to
holders of all such stock of the full preferential amounts to which they
are then entitled, then the entire amount available for payment of
dividends shall be distributed ratably among all such holders of Series A
Preferred Stock and of any Parity Securities in proportion to the full
amount to which they would otherwise be respectively entitled.
3. Preference on Liquidation.
(a) Liquidation Preference for Series A Preferred Stock. In
the event that the Corporation shall liquidate, dissolve or wind up,
whether voluntarily or involuntarily, no distribution shall be made to the
holders of shares of Common Stock or other Junior Securities (and no monies
shall be set apart for such purpose) unless prior thereto, the holders of
shares of Series A Preferred Stock shall have received an amount per share
equal to the greater of (i) the sum of (x) the Liquidation Value, plus (y)
all accrued but unpaid dividends thereon through the date of distribution,
(ii) ratable distributions determined with respect to the holders of Series
A Preferred Stock, any other securities convertible into, exchangeable for
or exercisable for Common Stock and Common Stock on the basis of the number
of shares of Common Stock into which such Series A Preferred Stock could be
converted pursuant to the provisions of Section 5 hereof immediately prior
to such distribution and (iii) the Payment Amount, on a per share basis
(the greater of (i), (ii) and (iii) above is herein referred to as the
"Series A Liquidation Preference"). The "Liquidation Value" means $1,000
per share with respect to the Series A Preferred Stock.
(b) Pro Rata Payments. If, upon any such liquidation,
dissolution or other winding up of the affairs of the Corporation, the
assets of the Corporation shall be insufficient to permit the payment in
full of the Series A Liquidation Preference for each share of Series A
Preferred Stock then outstanding and the full liquidating payments on all
Parity Securities, then the assets of the Corporation remaining shall be
ratably distributed among the holders of Series A Preferred Stock and of
any Parity Securities in proportion to the full amounts to which they would
otherwise be respectively entitled if all amounts thereon were paid in
full.
(c) Sale Not a Liquidation. Neither the voluntary sale,
conveyance, exchange or transfer (for cash, shares of stock, securities or
other consideration) of all or substantially all the property or assets of
the Corporation nor the consolidation, merger or other business combination
of the Corporation with or into one or more corporations shall be deemed to
be a liquidation, dissolution or winding-up, voluntary or involuntary, of
the Corporation.
(d) Notice of Liquidation. Written notice of any
liquidation, dissolution or winding up of the Corporation, stating the
payment date or dates when and the place or places where amounts
distributable in such circumstances shall be payable, shall be given by
first class mail, postage prepaid, not less than thirty (30) days prior to
any payment date specified therein, to the holders of record of the Series
A Preferred Stock at their respective addresses as shall appear on the
records of the Corporation.
<PAGE>
4. Voting. The Series A Preferred Stock shall vote together with
the Common Stock as a single class on all actions to be voted on by the
stockholders of the Corporation other than the election of directors. Each
share of Series A Preferred Stock shall entitle the holder thereof to such
number of votes per share on each such action as shall equal the number of
shares of Common Stock (excluding fractions of a share) into which each
share of Series A Preferred Stock is convertible on the record date for
such stockholder vote. The holders of Series A Preferred Stock shall be
entitled to notice of any stockholder's meeting in accordance with the
By-Laws of the Corporation.
5. Conversion. The holders of shares of Series A Preferred Stock
shall have the right to convert all or a portion of such shares into fully
paid and nonassessable shares of Common Stock as follows:
(a) Right to Convert. Subject to and upon compliance with
the provisions of this Section 5, a holder of shares of Series A Preferred
Stock shall have the right, at the option of such holder, at any time, to
convert any or all of such shares into the number of fully paid and
nonassessable shares of Common Stock (calculated as to each conversion
rounded down to the nearest 1/100th of a share) obtained by dividing the
aggregate Liquidation Value of the shares to be converted, plus all accrued
but unpaid dividends thereon (but excluding accrued but undeclared
dividends which have accrued in the fiscal quarter during which such
conversion occurs) through the date of conversion (unless the holder of
shares of Series A Preferred Stock being so converted shall have elected to
receive any such dividends in respect of the shares being converted
subsequent to conversion), by the Conversion Price and by surrender of such
shares, such surrender to be made in the manner provided in paragraph (b)
of this Section 5. The Common Stock issuable upon conversion of the shares
of Series A Preferred Stock, when such Common Stock shall be issued in
accordance with the terms hereof, is hereby declared to be and shall be
duly authorized, validly issued, fully paid and nonassessable Common Stock.
(b) Mechanics of Conversion. Each holder of Series A
Preferred Stock that desires to convert the same into shares of Common
Stock shall surrender the certificate or certificates therefor, duly
endorsed, at the principal office of the Corporation or of any transfer
agent for the Series A Preferred Stock, accompanied by written notice to
the Corporation that such holder elects to convert the same and stating
therein the number of shares of Series A Preferred Stock being converted
and whether all accrued and unpaid dividends in respect of such shares
shall be included in the calculation set forth in Section 5(a) hereof, and
setting forth the name or names in which such holder wishes the certificate
or certificates for shares of Common Stock to be issued if such name or
names shall be different than that of such holder. Thereupon, the
Corporation shall issue and deliver at such office on the second succeeding
Business Day (unless such conversion is in connection with an underwritten
public offering of Common Stock, in which event concurrently with such
conversion) to such holder or on such holder's written order, (i) a
certificate or certificates for the number of validly issued, fully paid
and nonassessable full shares of Common Stock to which such holder is
entitled and (ii) if less than the full number of shares of Series A
Preferred Stock evidenced by the surrendered certificate or certificates
are being converted, a new certificate or certificates, of like tenor, for
<PAGE>
the number of shares evidenced by such surrendered certificate or
certificates less the number of shares converted.
Each conversion shall be deemed to have been effected
immediately prior to the close of business on the date of such surrender of
the shares to be converted (except that if such conversion is in connection
with an underwritten public offering of Common Stock, then such conversion
shall be deemed to have been effected upon such surrender) so that the
rights of the holder thereof as to the shares being converted shall cease
at such time except for the right to receive shares of Common Stock and if
the holder of the shares being so converted shall have elected to receive
dividends subsequent to such conversion, all accrued and unpaid dividends
in accordance herewith (but excluding accrued but undeclared dividends
which have accrued in the fiscal quarter during which such conversion
occurs), and the person entitled to receive the shares of Common Stock
issuable upon such conversion shall be treated for all purposes as the
record holder of such shares of Common Stock at such time.
(c) Conditional Conversion. Notwithstanding any other
provision hereof, if conversion of any shares of Series A Preferred Stock
is to be made in connection with a public offering of Common Stock or any
transaction described in Section 5(d)(vi) hereof, the conversion of any
shares of Series A Preferred Stock may, at the election of the holder
thereof, be conditioned upon the consummation of the public offering or
such transaction, in which case such conversion shall not be deemed to be
effective until the consummation of such public offering or transaction.
(d) Adjustment of the Conversion Price. The Conversion Price
shall be adjusted from time to time as follows:
(i) Adjustment for Stock Dividends, Splits and Combinations. If the
Corporation at any time or from time to time after the Issue Date,
pays a stock dividend in shares of Common Stock, effects a subdivision
of the outstanding Common Stock, combines the outstanding shares of
Common Stock, or issues by reclassification of shares of its Common
Stock any shares of capital stock of the Corporation, then, in each
such case, the Conversion Price in effect immediately prior to such
event shall be adjusted so that each holder of shares of Series A
Preferred Stock shall have the right to convert its shares of Series A
Preferred Stock into the number of shares of Common Stock which it
would have owned after the event had such shares of Series A Preferred
Stock been converted immediately before the happening of such event.
Any adjustment under this Section 5(d)(i) shall become effective
retroactively immediately after the record date in the case of a
dividend and shall become effective immediately after the effective
date in the case of an issuance, subdivision, combination or
reclassification. If the Corporation pays a stock dividend in shares
of its Common Stock and the holders of the Series A Preferred Stock
received such stock dividend pursuant to Section 2(b) hereof, the
Conversion Price shall not be adjusted for such stock dividend under
this Section 5(d)(i).
<PAGE>
(ii) Issuance of Additional Shares of Stock. If at any time the
Corporation shall (except as hereinafter provided) issue or sell any
Additional Shares of Stock in exchange for consideration in an amount
per Additional Share of Stock less than the Conversion Price in effect
immediately prior to such issuance or sale of Additional Shares of
Stock, then the Conversion Price in effect immediately prior to such
issuance or sale of such Additional Shares of Stock (the "Adjustment
Event") shall be adjusted to equal the price determined by multiplying
such Conversion Price by a fraction, of which:
(x) the numerator shall be (1) the number of shares of
Common Stock outstanding immediately prior to such Adjustment
Event plus (2) the number of shares of Common Stock which the
aggregate amount of consideration, if any, received by the
Corporation for the total number of Additional Shares of Stock
would purchase at the greater of (I) the Market Price per share
of the Common Stock in effect immediately prior to such
Adjustment Event or (II) the Conversion Price in effect
immediately prior to such Adjustment Event, and
(y) the denominator shall be the number of shares of Common
Stock outstanding immediately after such Adjustment Event;
provided, however, that such adjustment shall be made only if the
Conversion Price determined from such adjustment shall be less than
the Conversion Price in effect immediately prior to the issuance of
such Additional Shares of Stock. The provisions of this Section
5(d)(ii) shall not apply to any issuance of Additional Shares of
Common Stock for which an adjustment is provided under Section 5(d)(i)
or 5(a)(iii) or which are dividends or distributions received by the
holders of the Series A Preferred Stock pursuant to Section 2(b)
hereof.
(iii)(A) Issuance of Warrants or Other Rights. If at any time
the Corporation shall in any manner (whether directly or by assumption
in a merger in which the Corporation is the surviving corporation)
issue or sell any warrants or other rights to subscribe for or
purchase any Additional Shares of Stock or any Convertible Securities,
whether or not the rights to exchange or convert thereunder are
immediately exercisable, and the consideration received for such
warrants or other rights shall be less than the Conversion Price in
effect immediately prior to the time of such issue or sale, then the
Conversion Price shall be adjusted as provided in Section 5(d)(ii),
except that "Adjustment Event" shall mean such issuance or sale and
the denominator shall include the Additional Shares of Stock that
would be issued upon exercise of such warrants and rights and
conversion of any such Convertible Securities. No further adjustments
of the Conversion Price shall be made upon the actual issue or sale of
such Additional Shares of Stock or of such Convertible Securities upon
exercise of such warrants or other rights or upon the actual issue of
Common Stock upon the conversion or exchange of such Convertible
Securities.
<PAGE>
(B) Issuance of Convertible Securities. If at any time the
Corporation shall in any manner (whether directly or by assumption in a
merger in which the Corporation is the surviving corporation) issue or
sell, any Convertible Securities, whether or not the rights to convert
thereunder are immediately exercisable, and the consideration received for
such Convertible Securities shall be less than the Conversion Price in
effect immediately prior to the time of such issue or sale, then the
Conversion Price shall be adjusted as provided in Section 5(d)(ii), except
that "Adjustment Event" shall mean such issuance or sale and the
denominator shall include the Additional Shares of Stock that would be
issued upon conversion of such Convertible Securities. No adjustment of the
Conversion Price shall be made under this Section 5(d)(iii)(B) upon the
issuance of any Convertible Securities which are issued pursuant to the
exercise of any warrants or other subscription or purchase rights therefor,
if any such adjustment shall previously have been made upon the issuance of
such warrants or other rights pursuant to Section 5(d)(iii)(A). No further
adjustments of the Conversion Price shall be made upon the actual issue of
Common Stock upon conversion of such Convertible Securities and, if any
issue or sale of such Convertible Securities is made upon exercise of any
warrant or other right to subscribe for or to purchase any such Convertible
Securities for which adjustments of the Conversion Price have been or are
to be made pursuant to other provisions of this Section 5(d), no further
adjustments of the Conversion Price shall be made by reason of such issue
or sale.
(iv) Superseding Adjustments. If, at any time after any
adjustment of the Conversion Price at which the Series A Preferred
Stock is convertible shall have been made pursuant to Section
5(d)(iii) as a result of any issuance of warrants, rights or
Convertible Securities,
(A) such warrants or rights, or the right of conversion or
exchange in such other Convertible Securities, shall expire, and
all or a portion of such warrants or rights, or the right of
conversion or exchange with respect to all or a portion of such
other Convertible Securities, as the case may be, shall not have
been exercised, or
(B) the consideration per share for which shares of Common
Stock are issuable pursuant to such warrants or rights, or the
terms of such other Convertible Securities, shall be increased
solely by virtue of provisions therein contained for an automatic
increase in such consideration per share upon the occurrence of a
specified date or event,
then such previous adjustment pursuant to Section 5(d)(iii) shall be
rescinded and annulled and the Additional Shares of Stock which were
deemed to have been issued by virtue of the computation made in
connection with the adjustment so rescinded and annulled shall no
longer be deemed to have been issued by virtue of such computation.
Thereupon, a recomputation shall be made of the effect of such rights
or options or other Convertible Securities on the basis of
(C) treating the number of Additional Shares of Stock or
other property, if any, theretofore actually issued or issuable
<PAGE>
pursuant to the previous exercise of any such warrants or rights
or any such right of conversion or exchange, as having been
issued on the date or dates of any such exercise and for the
consideration actually received and receivable therefor, and
(D) treating any such warrants or rights or any such other
Convertible Securities which then remain outstanding as having
been granted or issued immediately after the time of such
increase of the consideration per share for which shares of stock
or other property are issuable under such warrants or rights or
other Convertible Securities;
whereupon a new adjustment of the Conversion Price at which the Series A
Preferred Stock is convertible shall be made, which new adjustment
shall supersede the previous adjustment so rescinded and annulled.
(v) Other Provisions Applicable to Adjustments under this
Section. The following provisions shall be applicable to making
adjustments to the shares of Common Stock into which the Series A
Preferred Stock is convertible and the Conversion Price at which the
Series A Preferred Stock is convertible provided for in this Section
5(d):
(A) Computation of Consideration. To the extent that any
Additional Shares of Stock or any Convertible Securities or any
warrants or other rights to subscribe for or purchase any
Additional Shares of Stock or any Convertible Securities shall be
issued for cash consideration, the consideration received by the
Corporation therefor shall be the amount of the cash received by
the Corporation therefor, or, if such Additional Shares of Stock
or Convertible Securities are offered by the Corporation for
subscription, the subscription price, or, if such Additional
Shares of Stock or Convertible Securities are sold to
underwriters or dealers for public offering without a
subscription offering, the initial public offering price (in any
such case subtracting any amounts paid or receivable for accrued
interest or accrued dividends). To the extent that such issuance
shall be for a consideration other than cash, then except as
herein otherwise expressly provided, the amount of such
consideration shall be deemed to be the fair value of such
consideration at the time of such issuance as determined in good
faith by the Board of Directors of the Corporation. In case any
Additional Shares of Stock or any Convertible Securities or any
warrants or other rights to subscribe for or purchase such
Additional Shares of Stock or Convertible Securities shall be
issued in connection with any merger in which the Corporation
issues any securities, the amount of consideration therefor shall
be deemed to be the fair value, as determined in good faith by
the Board of Directors of the Corporation, of such portion of the
assets and business of the nonsurviving corporation as such Board
in good faith shall determine to be attributable to such
Additional Shares of Stock, Convertible Securities, warrants or
other rights, as the case may be. The consideration for warrants
<PAGE>
or other rights to subscribe for or purchase any Additional
Shares of Stock or any Convertible Securities shall be the
consideration received by the Corporation for issuing such
warrants or other rights plus the additional consideration
payable (or deemed paid) to the Corporation upon exercise of such
warrants or other rights plus, in the case of Convertible
Securities, the additional consideration, if any, payable (or
deemed paid) to the Corporation upon the exercise of the right of
conversion or exchange of such Convertible Securities. The
consideration for any Convertible Securities shall be the
consideration received by the Corporation for issuing warrants or
other rights to subscribe for or purchase such Convertible
Securities, plus the consideration paid or payable to the
Corporation in respect of the subscription for or purchase of
such Convertible Securities, plus the additional consideration,
if any, payable (or deemed paid) to the Corporation upon the
exercise of the right of conversion or exchange of such
Convertible Securities. In case of the issuance at any time of
any Additional Shares of Stock or Convertible Securities in
payment or satisfaction of any dividends or interest upon any
class of stock other than Common Stock or Convertible Securities,
the Corporation shall be deemed to have received for such
Additional Shares of Stock or Convertible Securities a
consideration equal to the amount of such dividend so paid or
satisfied.
(B) When Adjustments to Be Made. The adjustments required by
this Section 5(d) shall be made whenever and as often as any
event requiring an adjustment shall occur, except that any
adjustment of the Conversion Price that would otherwise be
required may be postponed (except in the case of a subdivision or
combination of shares of the Common Stock, as provided for in
Section 5(d)(i)) if such adjustment either by itself or with
other adjustments not previously made amount to a change in the
Conversion Price of less than $.05. Any adjustment representing a
change of less than such minimum amount (except as aforesaid)
which is postponed shall be carried forward and made as soon as
such adjustment, together with other adjustments required by this
Section 5(d) and not previously made, would result in a minimum
adjustment. For the purpose of any adjustment, any event shall be
deemed to have occurred at the close of business on the date of
its occurrence.
(C) Fractional Interests. In computing adjustments under
this Section 5(d), fractional interests in the Common Stock shall
be taken into account to the nearest 1/100th of a share.
(D) Challenge to Good Faith Determination. Whenever the
Board of Directors of the Corporation shall be required to make a
determination in good faith of the fair value of any item under
this Section 5(d), such determination may be challenged in good
faith by the holders of two-thirds of the Series A Preferred
Stock and any dispute shall be resolved by an investment banking
<PAGE>
firm of recognized national standing selected by the Corporation.
The fees of such investment banker shall be borne by such holders
unless such investment banker's calculation results in a downward
adjustment of the Conversion Price exceeding 110% of the
adjustment made in accordance with the Corporation's calculation,
in which case such fees shall be paid by the Corporation.
(vi) Reorganization, Reclassification, Merger or Consolidation.
If the Corporation shall at any time reorganize or reclassify the
outstanding shares of Common Stock (other than a change in par value,
or from no par value to par value, or from par value to no par value,
or as a result of a subdivision or combination) or consolidate with or
merge into another corporation (where the Corporation is not the
continuing corporation after such merger or consolidation), the Series
A Preferred Stock shall automatically become convertible into the same
kind and number of shares of stock and other securities, cash or other
property (and upon the same terms and with the same rights) as would
have been receivable by a holder of the number of shares of Common
Stock into which such shares of Series A Preferred Stock could have
been converted immediately prior to such reorganization,
reclassification, consolidation or merger. The Conversion Price upon
such conversion shall be the Conversion Price that would otherwise be
in effect pursuant to the terms hereof. Notwithstanding anything
herein to the contrary, the Corporation will not effect any such
reorganization, reclassification, merger or consolidation unless prior
to the consummation thereof, the corporation which may be required to
deliver any stock, securities or other assets upon the conversion of
the Series A Preferred Stock shall agree by an instrument in writing
to deliver such stock, cash, securities or other assets to the holders
of the Series A Preferred Stock. A sale, transfer or lease of all or
substantially all of the assets of the Corporation to another person
shall be deemed a reorganization, reclassification, consolidation or
merger for the foregoing purposes.
(vii) Exceptions to Adjustment of Conversion Price. Anything
herein to the contrary notwithstanding, the Corporation shall not make
any adjustment of the Conversion Price (i) in the case of the issuance
of shares of Common Stock (a) upon exercise of any portion of the
Warrants, (b) on any conversion of shares of Series A Preferred Stock,
(c) pursuant to stock options or other equity incentive plans for
employees, officers and/or directors of the Corporation or (d)
pursuant to the terms of any other securities outstanding on the Issue
Date or (ii) in the case of issuance of Additional Preferred Shares as
dividends on Series A Preferred Stock.
(viii) Officer's Certificate. Upon each adjustment of the
Conversion Price, and in the event of any change in the rights of a
holder of Series A Preferred Stock by reason of other events herein
set forth, then and in each such case, the Corporation will promptly
provide a certificate of a duly authorized officer of the Corporation,
stating the adjusted Conversion Price, or specifying the other shares
of the Common Stock, securities or assets and the amount thereof
receivable as a result of such change in rights, and setting forth in
<PAGE>
reasonable detail the method of calculation and the facts upon which
such calculation is based. The Corporation will promptly mail a copy
of such certificate to the holders of Series A Preferred Stock. If the
holders of two-thirds of the Series A Preferred Stock disagree with
such calculation, the Corporation agrees to obtain within thirty (30)
Business Days an opinion of a firm of independent certified public
accountants selected by the Corporation's Board of Directors to review
such calculation and the opinion of such firm of independent certified
public accountants shall be final and binding on the parties and shall
be conclusive evidence of the correctness of the computation with
respect to any such adjustment of the Conversion Price. The fees of
such accounting firm shall be borne by such holders unless such
accounting firm's calculation results in a downward adjustment of the
Conversion Price exceeding 110% of the adjustment made in accordance
with the Corporation's calculation, in which case such fees shall be
paid by the Corporation.
(ix) Corporation to Prevent Dilution. In case at any time or from
time to time conditions arise by reason of action taken by the
Corporation, which in the good faith opinion of its Board of Directors
are not adequately covered by the provisions of this Section 5(d), and
which might materially and adversely affect the exercise rights of the
holders of the Series A Preferred Stock, the Board of Directors of the
Corporation shall appoint a firm of independent certified public
accountants, which shall give their opinion upon the adjustment, if
any, on a basis consistent with the standards established in the other
provisions of this Section 5(d), necessary with respect to the
Conversion Price, so as to preserve, without dilution (other than as
specifically contemplated by the Certificate of Incorporation), the
exercise rights of the holders of the Series A Preferred Stock. Upon
receipt of such opinion, the Board of Directors of the Corporation
shall forthwith make the adjustments described therein.
(e) No Impairment. The Corporation will not, by amendment of
its Certificate of Incorporation or through any reorganization,
recapitalization, transfer of assets, consolidation, merger, dissolution,
issue or sale of securities or any other voluntary action, avoid or seek to
avoid the observance or performance of any of the terms to be observed or
performed hereunder by the Corporation (it being understood that the
Corporation will not be prohibited from taking actions that are permitted
by the terms hereunder) but will at all times in good faith assist in the
carrying out of all the provisions of Section 5 hereof and in the taking of
all such action as may be necessary or appropriate in order to protect the
conversion rights of the holders of the Series A Preferred Stock against
impairment.
(f) No Fractional Shares Adjustments. No fractional shares
shall be issued upon conversion of the Series A Preferred Stock. The number
of full shares of Common Stock issuable upon conversion of all shares of
Series A Preferred Stock converted by the same stockholder at the same time
shall be computed on the basis of the aggregate amount of the shares to be
converted. Instead of any fractional shares of Common Stock which would
otherwise be issuable upon conversion of any shares of Series A Preferred
Stock, the Corporation will pay a cash adjustment in respect of such
<PAGE>
fractional interest in an amount equal to the same fraction of the Market
Price per share of Common Stock on the day of conversion.
(g) Shares to be Reserved. The Corporation shall at all
times reserve and keep available, out of its authorized and unissued stock,
solely for the purpose of effecting the conversion of the Series A Preferred
Stock, such number of shares of Common Stock as shall from time to time be
sufficient to effect the conversion of all of the Series A Preferred Stock
from time to time outstanding. The Corporation shall from time to time, in
accordance with the laws of the State of Delaware, use its best efforts to
obtain stockholder approval to increase, and thereafter to, increase the
authorized number of shares of Common Stock if at any time the number of
shares of authorized but unissued Common Stock shall be insufficient to
permit the conversion in full of the Series A Preferred Stock.
(h) Taxes and Charges. The Corporation will pay any and all
issue or other taxes that may be payable in respect of any issuance or
delivery of shares of Common Stock on conversion of the Series A Preferred
Stock. The Corporation shall not, however, be required to pay any tax which
may be payable in respect of any transfer involved in the issuance or
delivery of Common Stock in a name other than that of the registered holder
of the Series A Preferred Stock, and no such issuance or delivery shall be
made unless and until the Person requesting such issuance has paid to the
Corporation the amount of such tax or has established, to the satisfaction
of the Corporation, that such tax has been paid.
(i) Closing of Books. The Corporation will at no time close
its transfer books against the transfer of any shares of Series A Preferred
Stock or of any shares of Common Stock issued or issuable upon the
conversion of any shares of Series A Preferred Stock in any manner which
interferes with the timely conversion of such shares of Series A Preferred
Stock.
6. Redemption
(a) Redemption at the Corporation's Option. The Corporation
may, at its option, redeem all, but not less than all, of the then
outstanding shares of Series A Preferred Stock at the Mandatory Redemption
Price at any time on or after December 31, 2003. Any redemption of the
Series A Preferred Stock pursuant to this Section 6(a) shall be at a price
per share equal to the Liquidation Value plus all accrued but unpaid
dividends thereon through the redemption date (the "Mandatory Redemption
Price"). The Mandatory Redemption Price shall be paid, at the election of
the Corporation, in cash or shares of Common Stock (or any combination
thereof), provided, that, for purposes of calculating the number of shares
of Common Stock to be received by each holder of Series A Preferred Stock,
each such share of Common Stock shall be valued at 90% of the Market Price.
Notwithstanding the foregoing, the Corporation will not issue any such
shares of Common Stock to holders of more than 5% of the Common Stock or in
an aggregate amount in excess of 19.99% of the then outstanding Common
Stock, in each case to the extent such issuances are prohibited by any
applicable rules of any stock exchange on which the Common Stock is then
listed.
<PAGE>
(b) Redemption at Option of Holder Upon a Fundamental
Change. If a Fundamental Change occurs, each holder of Series A Preferred
Stock shall have the right, at the holder's option, to require the
Corporation to redeem all of such holder's Series A Preferred Stock, or any
portion thereof, on the date (the "Redemption Date") selected by the
Corporation that is not less than ten (10) nor more than twenty (20) days
after the Final Surrender Date, at a price per share equal to the Optional
Redemption Price, provided, that the Corporation may not effect such
redemption if the Corporation does not have sufficient capital and surplus
to permit such redemption under Delaware law, although such failure to make
such redemption shall not affect in any way the legal claim of the holders
for such redemption; provided, further, that the Corporation's obligation
to pay the Optional Redemption Price upon a Fundamental Change shall
constitute a claim which is not indebtedness of the Corporation and in any
event is an equity claim that is subordinated to any indebtedness or any
other creditor's claim of the Corporation. The Corporation agrees that it
will not voluntarily complete any Fundamental Change unless proper
provision has been made to satisfy its obligations under this Section 6(b).
Any redemption of the Series A Preferred Stock pursuant to this Section
6(b) shall be at a redemption price per share equal to the Series A
Liquidation Preference, except that, for purposes of the calculation of the
Series A Liquidation Preference under this Section 6(b), clause (ii) of the
definition of Series A Liquidation Preference in Section 3(a) hereof shall
provide for the amount per share such holders would have received if such
holders had converted their shares of Series A Preferred Stock into shares
of Common Stock immediately prior to the Fundamental Change (the "Optional
Redemption Price"). Payment of the Optional Redemption Price shall be made
in cash. As a condition to the exercise of such option to redeem, the
holder of the Series A Preferred Stock, in addition to the tender of such
Series A Preferred Stock, must tender all Warrants (including any
additional Warrants issued pursuant to the terms of such Warrants) issued
in connection with the Series A Preferred Stock.
(c) Procedures for Redemption. In the event the Corporation
shall redeem shares of Series A Preferred Stock pursuant to Section 6, the
Corporation shall give written notice of such redemption by first class
mail, postage prepaid, mailed not less than thirty (30) nor more than
ninety (90) days prior to the redemption date, to each holder of record of
the shares to be redeemed, at such holder's address as the same appears on
the stock records of the Corporation. Each such notice shall state, if
applicable: (i) the redemption date; (ii) the number of shares of Series A
Preferred Stock to be redeemed; (iii) the Mandatory Redemption Price; (iv)
the place or places where certificates for such shares are to be
surrendered for payment of the Mandatory Redemption Price; (v) that payment
will be made upon presentation and surrender of such Series A Preferred
Stock and, if appropriate, the related Warrants; (vi) the then current
Conversion Price and the date on which the right to convert such shares of
Series A Preferred Stock will expire; (vii) that dividends on the shares to
be redeemed shall cease to accrue following such redemption date; (viii)
that such redemption is mandatory, if pursuant to Section 6(a), and (ix)
that dividends, if any, accrued to the date fixed for redemption will be
paid as specified in such notice. Notice having been mailed as aforesaid,
from and after the redemption date, unless the Corporation shall be in
default in the payment of the Mandatory Redemption Price or Optional
Redemption Price, as the case may be (including, if applicable, any accrued
and unpaid dividends to the date fixed for redemption), (A) dividends on
<PAGE>
the shares of the Series A Preferred Stock so called for redemption shall
cease to accrue, (B) such shares shall be deemed no longer outstanding and
(C) all rights of the holders thereof as stockholders of the Corporation
(except the right to receive from the Corporation (i) any moneys or shares
of Common Stock payable upon redemption without interest thereon and, (ii)
in the case of a partial redemption, any shares of Series A Preferred Stock
not redeemed pursuant to Section 6(a) hereof) shall cease.
Upon surrender in accordance with such notice of the
certificates for any such shares so redeemed pursuant to Section 6(a)
(properly endorsed or assigned for transfer, if the Board of Directors
shall so require and the notice shall so state), such shares shall be
redeemed by the Corporation at the Mandatory Redemption Price.
Notwithstanding the foregoing, if notice of redemption has
been given pursuant to this Section 6 and any holder of shares of Series A
Preferred Stock shall, prior to the close of business on the third (3rd)
Business Day preceding the redemption date, give written notice to the
Corporation pursuant to Section 5(b) hereof of the conversion of any or all
of the shares to be redeemed held by such holder (accompanied by a
certificate or certificates for such shares, duly endorsed or assigned to
the Corporation), then the conversion of such shares to be redeemed shall
become effective as provided in Section 5 hereof.
(d) Notice of Fundamental Change. Within thirty (30) days
after the occurrence of a Fundamental Change, the Corporation shall mail to
all holders of record of the Series A Preferred Stock a notice in the
manner and containing the information set out in clauses (i) through (ix)
of the second sentence of the first paragraph of Section 6(c), except that,
for purposes of this Section 6(d), references to "Mandatory Redemption
Price" shall mean the Optional Redemption Price and such notice shall also
describe the occurrence of such Fundamental Change and of the redemption
right arising as a result thereof. To exercise the redemption right, a
holder of Series A Preferred Stock must surrender, on or before the date
which is, subject to any contrary requirements of applicable law, thirty
(30) days after the date of mailing of the notice from the Corporation (the
"Final Surrender Date"), the certificates representing the Series A
Preferred Stock with respect to which the right is being exercised, duly
endorsed for transfer to the Corporation, together with a written notice of
election.
(e) Election Irrevocable. An election by a holder of Series
A Preferred Stock to have the Corporation repurchase shares of Series A
Preferred Stock pursuant to Section 6(b) shall become irrevocable at the
close of business on the Final Surrender Date.
7. Shares to be Retired. Any share of Series A Preferred
Stock converted, redeemed, repurchased or otherwise acquired by the
Corporation shall be retired and canceled and shall upon cancellation be
restored to the status of authorized but unissued shares of preferred
stock, subject to reissuance by the Board of Directors as shares of
preferred stock of one or more other series but not as shares of Series A
Preferred Stock.
<PAGE>
8. Affirmative Covenants.
(a) Office for Payment, Exchange and Registration; Location
of Office; Notice of Change of Name or Office. So long as any shares of
Series A Preferred Stock are outstanding, the Corporation will maintain an
office or agency where shares of Series A Preferred Stock may be presented
for redemption, exchange, conversion, exercise or registration of transfer.
Such office or agency initially shall be the office of the Corporation.
The Corporation shall give each holder of shares of Series A
Preferred Stock at least twenty (20) days' prior written notice of any
change in (i) the name of the Corporation as then in effect or (ii) the
location of the office of the Corporation required to be maintained under
this Section 8(a).
(b) Reservation of Shares. The Corporation shall at all
times keep reserved, free from preemptive rights, out of its authorized
Common Stock a number of shares of Common Stock sufficient to provide for
the exercise of the conversion rights provided in Section 5 hereof.
(c) Securities Exchange Act Registration. Unless a
Fundamental Change has occurred or would occur, the Corporation will
maintain the registration of its Common Stock, under Section 12(b) or
Section 12(g), whichever is applicable, of the Securities Exchange Act, and
the Corporation will file on time such information, documents and reports
as the Commission may require or prescribe for companies whose stock has
been registered pursuant to such Section 12(b) or Section 12(g), whichever
is applicable.
(d) Delivery of Information for Rule 144 or Rule 144A
Transactions. If required to permit sales of shares of Series A Preferred
Stock pursuant to Rule 144, the Corporation will, upon the request of any
holder of shares of Series A Preferred Stock, make generally available to
the public such financial and other information, as is set forth in clause
(c)(2) of Rule 144.
If a holder of shares of Series A Preferred Stock proposes
to transfer any such shares pursuant to Rule 144A under the Securities Act
(as in effect from time to time), the Corporation agrees to provide (upon
the request of such holder or the prospective transferee) to such holder
and (if requested) to the prospective transferee any financial or other
information concerning the Corporation and its Subsidiaries which is
required to be delivered by such holder to any transferee of such shares
pursuant to such Rule 144A.
9. Negative Covenants. The Corporation covenants and agrees
that without the prior written consent of the holders of a two-thirds of
the outstanding shares of Series A Preferred Stock:
<PAGE>
(a) Indebtedness. The Corporation will not (i) incur
Indebtedness, other than any Indebtedness permitted to be incurred pursuant
to the Credit Agreement or pursuant to any Indenture or (ii) enter into any
agreement related to debt that prohibits the Corporation from paying
dividends on the Series A Preferred Stock in Additional Preferred Shares.
(b) Consolidation, Liquidation, Merger and Sale. For the
period beginning on the date hereof and ending eighteen (18) months
thereafter, the Corporation will not, and will not agree to: (i) sell,
lease, transfer or otherwise dispose of all or substantially all of its
assets, directly or indirectly, to any other Person or (ii) effect a merger
or consolidation if the Corporation is not the surviving corporation from
such merger or consolidation.
(c) Maintenance of Public Market. The Corporation will not
proceed with a program of acquisition of its Common Stock, initiate a
corporate reorganization or recapitalization or undertake a consolidation
or merger or authorize, consent to or take any action (other than a
transaction open to all holders of Common Stock in which the consideration
offered is cash or securities registered under the Securities Exchange Act
and such securities are registered on a national securities exchange (or
the NASDAQ National Market) and the average number of outstanding shares of
such capital stock (other than shares held by Affiliates) over the prior
three month period is not less than the average number of outstanding
shares of Common Stock (other than shares held by Affiliates)) (A) which
results in the registration of the Corporation's Common Stock under the
Securities Exchange Act to be no longer required; (B) requiring the
Corporation to make a filing under Schedule 13e-3 of the Securities
Exchange Act; (C) substantially eliminating the public market for shares of
Common Stock of the Corporation; or (D) causing a delisting of the
Corporation's Common Stock from the American Stock Exchange (or any
national securities exchange on which the Common Stock is listed) unless
such Common Stock is delisted as a result of being listed on the NASDAQ
Stock Market or another national securities exchange.
(d) No Change in Business. Neither the Corporation nor any
of its Subsidiaries will change substantially the character of its business
as conducted on the date hereof.
(e) Restricted Payments; Investments. Neither the
Corporation nor any of its Subsidiaries will declare or make or permit to
be declared or made: (i) any Restricted Payment unless such Restricted
Payment would be permitted to be declared or made pursuant to the Credit
Agreement or pursuant to any Indenture or (ii) any Investment not permitted
to be made pursuant to the Credit Agreement or pursuant to any Indenture.
(f) No Restrictions on Dividends. Neither the Corporation
nor any Subsidiary will create (or permit to exist) any consensual
restrictions (whether by agreement or otherwise) that may affect or limit
the ability of any Subsidiary to pay dividends or to make other
distributions of any or all of its assets to the Corporation or to any
Subsidiary, except as permitted under the Credit Agreement or under any
Indenture.
<PAGE>
(g) Private Placement Status. Neither the Corporation nor
any agent nor other Person acting on the Corporation's behalf will do or
cause to be done any act which act would require the registration of the
initial issuance or sale by the Corporation of the Series A Preferred Stock
within the provisions of Section 5 of the Securities Act or the filing,
notification or reporting requirements of any state securities law.
(h) Amendments to Charter; By-Laws. The Corporation will not
amend its certificate of incorporation or by-laws in any manner that would
impair or reduce the rights of the Series A Preferred Stock.
10. Call.
(a) Call at the Corporation's Option. Subject to the other
provisions of this Section 10, on any date beginning two years after the
Issue Date, the Corporation shall have the right to redeem all (but not
less than all) of the outstanding shares of Series A Preferred Stock (the
"Call"), provided, that as of the day preceding the Call Notice (i) the
Market Price of a share of Common Stock is equal to, or greater than, 175%
of the then applicable Conversion Price and (ii) the Common Stock has
traded, on the principal market for the Common Stock, with an average daily
volume in excess of 30,000 shares for a period of 90 consecutive days. Any
redemption of the Series A Preferred Stock pursuant to this Section 10(a)
shall be at a price per share of Series A Preferred Stock equal to the
Mandatory Redemption Price and shall be payable in cash.
(b) Procedures for Call at the Corporation's Option. The
Corporation's right to redeem the Series A Preferred Stock pursuant to
Section 10(a) shall be conditioned upon the Corporation giving notice (the
"Call Notice"), by first class mail, postage prepaid, of the exercise of
the Call to the holders of the Series A Preferred Stock not less than
twenty-five (25) days prior to the date of the redemption (the "Call
Date"). Each Call Notice shall state: (i) the Call Date; (ii) the Mandatory
Redemption Price; (iii) the place or places where certificates for such
shares are to be surrendered for payment of the Mandatory Redemption Price;
(iv) that payment will be made upon presentation and surrender of such
Series A Preferred Stock; (v) the then current Conversion Price and the
date on which the right to convert such shares of Series A Preferred Stock
will expire; (vi) that dividends on the shares to be purchased shall cease
to accrue following such Call Date; (vii) that such Call is mandatory; and
(viii) that accrued and unpaid dividends, if any, accrued to and including
the Call Date will be paid as specified in such notice. Notice having been
mailed as aforesaid, from and after the Call Date, unless the Corporation
shall be in default in the payment of the Mandatory Redemption Price
(including any accrued and unpaid dividends to (but excluding) the Call
Date), (A) dividends on the shares of the Series A Preferred Stock shall
cease to accrue, (B) such shares shall be deemed no longer outstanding and
(C) all rights of the holders thereof as stockholders of the Corporation
(except the right to receive from the Corporation (i) any moneys payable
upon exercise of the Call without interest thereon and (ii) any shares of
Common Stock pursuant to Section 5 hereof) shall cease.
Upon surrender in accordance with the Call Notice of the
certificates for any such shares so redeemed (properly endorsed or assigned
for transfer, if the Board of Directors shall so require and the Call
Notice shall so state), such shares shall be redeemed by the Corporation at
the applicable Mandatory Redemption Price.
Notwithstanding the foregoing, if the Call Notice has been
given pursuant to this Section 10 and any holder of shares of Series A
Preferred Stock shall, prior to the close of business on the twentieth
(20th) day after the date of such Call Notice, give written notice to the
Corporation pursuant to Section 5(b) hereof of the conversion of any or all
of the shares to be redeemed held by such holder (accompanied by a
certificate or certificates for such shares, duly endorsed or assigned to
the Corporation), then (i) the conversion of such shares to be redeemed
shall become effective as provided in Section 5 hereof and (ii) the
Corporation's right to Call such shares shall terminate.
11. Amendments With Consent of Holders. The Corporation may
amend this Certificate of Designations with the consent of the holders of
two-thirds of the outstanding shares of Series A Preferred Stock. However,
without the consent of each holder affected thereby, an amendment may not:
(i) reduce the amount of holders which must consent to an amendment; (ii)
reduce the rate of or extend the time for payment of dividends under
Section 2 hereof; (iii) reduce the number of shares to be issued or change
the price payable upon the conversion, pursuant to Section 5, or
redemption, pursuant to Section 6 or Section 10, as the case may be, or
change the form of the consideration payable upon such redemption, of
shares of Series A Preferred Stock or change the date on which shares of
Series A Preferred Stock may be converted or redeemed in accordance with
Section 5, Section 6 or Section 10 hereof, as the case may be; and (iv)
make any change in this Section 11.
It shall not be necessary for the consent of the holders
under this Section 11 to approve the particular form of any proposed
amendment, but it shall be sufficient if such consent approves the
substance thereof. The Corporation agrees that all holders of Series A
Preferred Stock shall be notified by the Corporation in advance of any
proposed amendment of this Certificate of Designations, but failure to give
such notice shall not in any way affect the validity of any such amendment.
In addition, promptly after obtaining the consent of the holders as herein
provided, the Corporation shall transmit a copy of any amendment which has
been adopted to all holders of Series A Preferred Stock then outstanding,
but failure to transmit copies shall not in any way affect the validity of
any such amendment.
12. Definitions. As used herein, the following terms shall
have the respective meanings set forth below:
"Additional Preferred Shares" means additional shares of
Series A Preferred Stock paid as a dividend on the Series A
Preferred Stock in accordance with Section 2(a)(vi).
<PAGE>
"Additional Shares of Stock" means all shares of Common
Stock issued by the Corporation after the Issue Date, other than
(i) in the case of the issuance of shares of Common Stock (a)
upon exercise of any portion of the Warrants, (b) on any
conversion of shares of Series A Preferred Stock, (c) pursuant to
stock options or other equity incentive plans for employees,
officers and/or directors of the Corporation or (d) pursuant to
the terms of any other securities outstanding on the Issue Date
or (ii) Common Stock issuable upon conversion of Additional
Preferred Shares.
"Affiliate", when used with respect to any Person, means (i)
if such Person is a corporation, any officer or director thereof
and any Person which is, directly or indirectly, the beneficial
owner (by itself or as part of any group) of more than five
percent (5%) of any class of any equity security (within the
meaning of the Securities Exchange Act) thereof, and, if such
beneficial owner is a partnership, any general partner thereof,
or if such beneficial owner is a corporation, any Person
controlling, controlled by or under common control with such
beneficial owner, or any officer or director of such beneficial
owner or of any corporation occupying any such control
relationship, (ii) if such Person is a partnership, any general
or limited partner thereof, and (iii) any other Person which,
directly or indirectly, controls or is controlled by or is under
common control with such Person. For purposes of this definition,
"control" (including the correlative terms "controlling",
"controlled by" and "under common control with"), with respect to
any Person, shall mean possession, directly or indirectly, of the
power to direct or cause the direction of the management and
policies of such Person, whether through the ownership of voting
securities or by contract or otherwise.
"Business Day" means any day that is not a Saturday, a
Sunday or any day on which banks in the State of New York are
authorized or obligated to close.
"Call" shall have the meaning set forth in Section 10(a).
"Call Date" shall have the meaning set forth in Section
10(b).
"Call Notice" shall have the meaning set forth in Section
10(b).
"Capitalized Leases" means any lease to which the
Corporation or a Subsidiary is party as lessee, or by which it is
bound, under which it leases any property (real, personal or
mixed) from any lessor other than the Corporation or a
Subsidiary, and which is required to be capitalized in accordance
with generally accepted accounting principles consistently
applied.
<PAGE>
"Commission" means the United States Securities and Exchange
Commission and any successor agency of the federal government
administering the Securities Act or the Securities Exchange Act.
"Common Stock" means the Corporation's Common Stock, par
value $.01 per share, and shall also include any capital stock or
other securities of the Corporation into which Common Stock is
changed, including by way of a reclassification, combination or
subdivision.
"Conversion Price" means the Conversion Price per share of
Common Stock into which the Series A Preferred Stock is
convertible, as such Conversion Price may be adjusted pursuant to
Section 5 hereof. The initial Conversion Price will be $15.00.
For the purposes of the Additional Preferred Shares, the initial
Conversion Price (before adjustment, if any) shall be equal to:
(i) if the closing price or the average of the bid and asked
price, as the case may be, on the close of business on the
Dividend Payment Date of the Common Stock (the "Common Stock
Closing Price") is less than or equal to the Conversion Price of
the Series A Preferred Stock, then the Conversion Price, (ii) if
the Common Stock Closing Price, is greater than the Conversion
Price but less than 120% of such Conversion Price, then the
Common Stock Closing Price, or (iii) if the Common Stock Closing
Price is 120% of the Conversion Price or greater, then 120% of
such Conversion Price.
"Convertible Securities" means evidences of indebtedness,
shares of preferred stock or other securities which are
convertible into or exchangeable, with or without payment of
additional consideration in cash or property, for Additional
Shares of Stock, either immediately or upon the occurrence of a
specified date or a specified event, other than the Series A
Preferred Stock and the Warrants.
"Corporation" means TransMontaigne Inc., a Delaware
corporation.
"Credit Agreement" means the Second Amended and Restated
Credit Agreement, dated as of October 30, 1998, between the
Corporation and Bank Boston, N.A., as agent, as amended, modified
or the terms of which are waived from time to time, or one or
more credit agreements, that subsequent to the termination or
expiration of the Credit Agreement, may be entered into to
refinance the Indebtedness incurred in connection with the Credit
Agreement or any successor credit agreement, as amended, modified
or the terms of which are waived from time to time.
"Dividend Payment Date" shall have the meaning set forth in
Section 2(a)(iii).
<PAGE>
"Final Surrender Date" shall have the meaning set forth in
Section 6(d).
"Fundamental Change" means any of the following events:
(i) the sale of all or substantially all of the assets
of the Corporation;
(ii) any event (A) which results in the registration of
the Corporation's Common Stock under the Securities Exchange
Act to be no longer required; (B) requiring the Corporation
to make a filing under Schedule 13e-3 of the Securities
Exchange Act; (C) substantially eliminating the public
market for shares of Common Stock of the Corporation; or (D)
causing a delisting of the Corporation's Common Stock from
the American Stock Exchange (or any national securities
exchange on which the Common Stock is listed) unless such
Common Stock is delisted as a result of being listed on the
NASDAQ Stock Market or another national securities exchange;
(iii) any consolidation of the Corporation with, or
merger of the Corporation into, any other person, any merger
of another person into the Corporation or any other business
combination involving the Corporation which results in the
holders of the Corporation's stock immediately prior to
giving effect to such transaction owning shares of capital
stock of the surviving corporation in such transaction
representing fifty percent (50%) or less of the total voting
power of all shares of capital stock of such surviving
corporation entitled to vote generally in the election of
directors;
(iv) the commencement by the Corporation of a voluntary
case under the Federal bankruptcy laws or any other
applicable Federal or state bankruptcy, insolvency or
similar law; the consent by the Corporation to the entry of
an order for relief in an involuntary case under such law or
to the appointment of a receiver, liquidator, assignee,
custodian, trustee, sequestrator (or other similar official)
of the Corporation or of any substantial part of its
property; any assignment by the Corporation for the benefit
of its creditors; any admission by the Corporation in
writing of its inability to pay its debts generally as they
become due; the entry of a decree or order for relief in
respect of the Corporation by a court having jurisdiction in
the premises in an involuntary case under Federal bankruptcy
laws or any other applicable Federal or state bankruptcy,
insolvency or similar law appointing a receiver, liquidator,
assignee, custodian, trustee, sequestrator (or other similar
official) of the Corporation or of any substantial part of
<PAGE>
its property, or ordering the winding up or liquidation of
its affairs, and on account of any such event the
Corporation shall liquidate, dissolve or wind up; or the
liquidation, dissolution or winding up of the Corporation
under any other circumstances;
(v) an event of default (under the Credit Agreement or
any Indenture) which has resulted in the acceleration of the
Indebtedness outstanding under such Credit Agreement or
Indenture, but only if such acceleration has not been cured,
waived or otherwise annulled (including by way of repayment
of the Indebtedness) within 10 days of such acceleration;
(vi) any Person, together with "affiliates" and
"associates" of such Person within the meaning of Rule 12b-2
of the Exchange Act, which is not now a beneficial owner of
at least 1% of the equity securities of the Corporation
shall acquire after the date hereof beneficial ownership
within the meaning of Rule 13d-3 of the Exchange Act of
greater than 50% of the voting power of the capital stock of
the Corporation; or
(vii) any failure to comply with any of the terms of
Section 8 or Sections 9(d), 9(g) or 9(h) hereof, which
failure is not cured within thirty (30) days of notice of
its occurrence.
"Guaranty" means (i) any guaranty or endorsement of the
payment or performance of, or any contingent obligation in
respect of, any indebtedness or other obligation of any other
Person, (ii) any other arrangement whereby credit is extended to
one obligor (directly or indirectly) on the basis of any promise
or undertaking of another Person (a) to pay the indebtedness of
such obligor, (b) to purchase an obligation owed by such obligor,
(c) to purchase or lease assets (or to provide funds, goods or
services) under circumstances that would enable such obligor to
discharge one or more of its obligations or (d) to maintain the
capital, working capital, solvency or general financial condition
of such obligor, in each case whether or not such arrangement is
disclosed in the balance sheet of such other Person or is
referred to in a footnote thereto and (iii) any liability as a
general partner of a partnership in respect of indebtedness or
other obligations of such partnership; provided, that the term
"Guaranty" shall not include (1) endorsements for collection or
deposit in the ordinary course of business or (2) obligations of
the Corporation or its Subsidiaries which would constitute
Guaranties solely by virtue of the continuing liability of a
Person which has sold assets subject to liabilities for the
liabilities which were assumed by the Person acquiring the
assets, unless such liability is required to be carried on the
consolidated balance sheet of the Corporation. The amount of any
Guaranty and the amount of indebtedness resulting from such
<PAGE>
Guaranty shall be the maximum amount of the guarantor's potential
obligation in respect of such Guaranty.
"Indebtedness" of any Person means, without duplication, as
of any date as of which the amount thereof is to be determined,
(i) all obligations of such Person to repay money borrowed
(including, without limitation, all notes payable and drafts
accepted representing extensions of credit, all obligations under
letters of credit, all obligations evidenced by bonds,
debentures, notes or other similar instruments and all
obligations upon which interest charges are customarily paid),
(ii) all Capitalized Leases in respect of which such Person is
liable as lessee or as the guarantor of the lessee, (iii) all
monetary obligations which are secured by any Lien existing on
property owned by such Person whether or not the obligations
secured thereby have been incurred or assumed by such Person,
(iv) all conditional sales contracts and similar title retention
debt instruments under which such Person is obligated to make
payments, (v) all Guaranties by such Person and (vi) all
contractual obligations (whether absolute or contingent) of such
Person to repurchase goods sold and distributed. "Indebtedness"
shall not include, however, (1) Indebtedness of the Corporation
to any of its wholly-owned Subsidiaries or Indebtedness of any
wholly-owned Subsidiary to the Corporation or to another
wholly-owned Subsidiary, and (2) any unfunded obligations in any
employee pension benefit plan (as defined in ERISA) of the
Corporation or of any Subsidiary.
"Indenture" means any indenture, deed of trust or other
similar instrument pursuant to which debt securities of the
Corporation are outstanding, whether existing on the Issue Date
or at any subsequent date, as amended, modified or the terms or
which are waived from time to time.
"Investment" means, with respect to any Person, (i) any
loan, advance or extension of credit by such Person to, and any
contributions to the capital of, any other Person, (ii) any
Guaranty by such Person, (iii) any interest in any capital stock,
equity interest or other securities of any other Person, (iv) any
transfer or sale of property of such Person to any other Person
other than upon full payment, in cash, or not less than the fair
market value of such property and (v) any commitment or option to
make an Investment if, in the case of an option, the
consideration for the acquisition of which exceeds $10,000, and
any of the foregoing under clauses (i) through (v) shall be
considered an Investment whether such Investment is acquired by
purchase, exchange, merger or any other method; provided, that
the term "Investment" (1) shall not include an Investment in the
Corporation or in a wholly-owned Subsidiary, (2) shall not
include current trade and customer accounts receivable and
allowances, provided they relate to goods furnished in the
ordinary course of business and are given in accordance with the
customary practices of the Corporation or a Subsidiary, (3) shall
not include temporary investments of excess cash of the
Corporation or of any Subsidiary in any of the following:
<PAGE>
(A) investment grade obligations maturing within one year of
their issuance which as to principal and interest constitute
direct obligations of, or obligations guaranteed by, the United
States of America, (B) negotiable certificates of deposit of
banks or trust companies which are organized under the laws of
the United States of America or any state thereof and which have
capital and surplus of at least $500,000,000, (C) commercial
paper which is rated not less than prime- one or A-1 or their
equivalents by Moody's Investors Service, Inc., or Standard &
Poor's Corporation or their successors, (D) any repurchase
agreement secured by any one or more of the foregoing and (E)
money market funds primarily investing in any of the foregoing
securities and sponsored by or affiliated with nationally
recognized brokerage or investment advisory firms, and (4) shall
not include Investments of the Corporation or any Subsidiary
existing on the date hereof.
"Issue Date" means the date of the original issuance of the
Series A Preferred Stock by the Corporation.
"Junior Securities" mean the Common Stock and any other
class of capital stock or series of preferred stock hereafter
created by the Corporation which does not expressly provide that
it ranks senior to or pari passu with the Series A Preferred
Stock as to dividends, other distributions, liquidation
preference or otherwise.
"Liquidation Value" shall have the meaning set forth in
Section 3(a).
"Mandatory Redemption Price" shall have the meaning set
forth in Section 6(a).
"Market Price" means, as to any security on the date of
determination thereof, the average of the closing prices of such
security's sales on all principal United States securities
exchanges on which such security may at the time be listed, or,
if there shall have been no sales on any such exchange on any
day, the last trading price of such security on such day, or if
there is no such price, the average of the bid and asked prices
at the end of such day, on the Nasdaq Stock Market, in each such
case averaged for a period of twenty (20) consecutive Business
Days prior to the day when the Market Price is being determined
(except that, for purposes of the calculation of the Market Price
under clause (i) of the proviso in the first sentence of Section
10(a), such prices will be averaged for a period of thirty (30)
consecutive Business Days prior to the day when the Market Price
is being determined under Section 10(a)); provided, that if such
security is listed on any United States securities exchange the
term "Business Days" as used in this sentence means business days
on which such exchange is open for trading. Notwithstanding the
foregoing, with respect to the issuance of any security by the
<PAGE>
Corporation in an underwritten public offering, the Market Price
shall be the per share purchase price paid by the public
investors. If at any time such security is not listed on any
exchange or the Nasdaq Stock Market, the Market Price shall be
deemed to be the fair value thereof determined by an investment
banking firm of nationally recognized standing selected by the
Board of Directors of the Corporation, as of the most recent
practicable date when the determination is to be made, taking
into account the value of the Corporation as a going concern, and
without taking into account any lack of liquidity of such
security or any discount for a minority interest.
"Optional Redemption Price" shall have the meaning set forth
in Section 6(b).
"Parity Securities" mean any class of capital stock or
series of preferred stock hereafter created by the Corporation,
with the prior written consent of the holders of two-thirds of
the outstanding Shares of Series A Preferred Stock, which
expressly provides that it ranks pari passu with the Series A
Preferred Stock as to dividends, other distributions, liquidation
preference or otherwise.
"Payment Amount" means such amount as is necessary to cause
the net present value to equal zero as of any date of all Cash
Inflows and all Cash Outflows (each as defined below) with
respect to the Series A Preferred Stock being redeemed pursuant
to Section 6(b) or held on the date of the distribution pursuant
to Section 3, as the case may be, when calculated with an annual
interest rate (compounded annually) equal to twelve percent
(12%). "Cash Inflows" as used herein means all cash payments,
including the Payment Amount, received by the holders of the
Series A Preferred Stock as a dividend or distribution with
respect to, or as consideration for the sale of, such Series A
Preferred Stock (whether such payments are received from the
Corporation or any other Person). "Cash Outflows" as used herein
means $1,000 per share of such Series A Preferred Stock. (For the
avoidance of doubt, Cash Inflows and Cash Outflows with respect
to any Series A Preferred Stock not included in the Series A
Preferred Stock being repurchased pursuant to Section 6 hereof as
part of the transaction for which the Payment Amount is then
being calculated shall not be included in the Cash Inflows and
Cash Outflows used to make such calculation (for purposes of
Section 6 only), and only the Cash Inflows and Cash Outflows with
respect to the Series A Preferred Stock which are then being
redeemed pursuant to Section 6 hereof in the transaction for
which the Payment Amount is then being calculated shall be used
in the Cash Inflows and Cash Outflows used to make such
calculation (for purposes of Section 6 only).)
<PAGE>
"Person" or "person" shall mean an individual, partnership,
corporation, trust, unincorporated organization, joint venture,
government or agency, political subdivision thereof, or any other
entity of any kind.
"Preferred Liquidation Value" shall have the meaning set
forth in Section 2(a)(ii)(B).
"Redemption Date" shall have the meaning set forth in
Section 6(b).
"Restricted Payment" shall have the meaning set forth in the
Credit Agreement.
"Rule 144" means (i) Rule 144 under the Securities Act as
such Rule is in effect from time to time and (ii) any successor
rule, regulation or law, as in effect from time to time.
"Rule 144A" means (i) Rule 144A under the Securities Act as
such Rule is in effect from time to time and (ii) any successor
rule, regulation or law, as in effect from time to time.
"Rule 144 Transaction" means a transfer of Conversion Shares
(A) complying with Rule 144 as such Rule is in effect on the date
of such transfer (but not including a sale other than pursuant to
"brokers' transactions" as defined in clauses (1) and (2) of
paragraph (g) of such Rule as in effect on the date hereof) and
(B) occurring at a time when the Common Stock is registered
pursuant to Section 12 of the Securities Exchange Act.
"Securities Act" means the Securities Act of 1933, as
amended, and the rules and regulations of the Commission
thereunder.
"Securities Exchange Act" means the Securities Exchange Act
of 1934, as amended.
"Series A Liquidation Preference" shall have the meaning set
forth in Section 3(a).
"Series A Preferred Stock" shall have the meaning set forth
in the resolution paragraph in the preamble.
"Stock and Warrant Purchase Agreements" shall mean the Stock
and Warrant Purchase Agreements, between the Corporation and each
of the Purchasers listed on the signature pages thereof, pursuant
to which such Purchasers purchased Series A Preferred Stock and
Warrants.
<PAGE>
"Subsidiary", with respect to any Person, means any
corporation, association or other entity of which more than fifty
percent (50%) of the total voting power of shares of stock or
other equity interests (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or
trustees thereof is, at the time as of which any determination is
being made, owned or controlled, directly or indirectly, by such
Person or one or more of its Subsidiaries, or both. The term
"Subsidiary" or "Subsidiaries" when used herein without reference
to any particular Person, means a Subsidiary or Subsidiaries of
the Corporation.
"Warrants" shall mean Warrants to purchase shares of Common
Stock, issued pursuant to the Stock and Warrant Purchase
Agreements, which rights and privileges are more fully set forth
in the Stock and Warrant Purchase Agreements and the Warrant
Agreement attached as Exhibit A-2 thereto.
13. Exchange of Shares; Cancellation of Surrendered Shares;
Replacement.
(a) Subject to Section 5 hereof, at any time at the request
of any holder of shares of Series A Preferred Stock of the Corporation at
its address provided under Section 14 hereof, the Corporation at its
expense (except for any transfer tax arising out of the exchange) will
issue and deliver to or upon the order of the holder in exchange therefor a
new certificate or certificates in such amount or amounts as such holder
may request in the aggregate representing the number of shares of Series A
Preferred Stock represented by such surrendered certificates, and
registered in the name of such holder or as such holder may direct,
provided that the holder and any proposed transferee deliver to the
Corporation such certifications, legal opinions or other information as the
Corporation may reasonably require to confirm that such transfer is being
made in compliance with, pursuant to an exemption from, or in a transaction
not subject to, the registration requirements of the Securities Act or any
state securities laws.
(b) Any share certificate for Series A Preferred Stock which
is converted into Conversion Shares in whole or in part shall be canceled
by the Corporation, and no new share certificate for Series A Preferred
Stock shall be issued in lieu of any shares of Series A Preferred Stock
which have been converted into Conversion Shares. The Corporation shall
issue a new certificate with respect to any shares of Series A Preferred
Stock which were not converted into Conversion Shares and were represented
by a certificate which was converted in part.
(c) Upon receipt of evidence satisfactory to the Corporation
of the loss, theft, destruction or mutilation of any share certificate for
Series A Preferred Stock and, in the case of any such loss, theft or
destruction, upon delivery of an indemnity agreement reasonably
satisfactory to the Corporation (if requested by the Corporation), or in
the case of any such mutilation, upon surrender of such share certificate
(which surrendered share certificate shall be canceled by the Corporation),
the Corporation will issue a new share certificate for Series A Preferred
Stock, of like tenor in lieu of such lost, stolen, destroyed or mutilated
<PAGE>
share certificate as if the lost, stolen, destroyed or mutilated share
certificate were then surrendered for exchange.
14. Notices. Except as may otherwise be provided for herein,
all notices referred to herein shall be in writing, and all notices
hereunder shall be deemed to have been given (i) upon receipt, in the case
of a notice of conversion given to the Corporation as contemplated in
Section 5(b) hereof or in the case of a notice of redemption at the
holder's option given to the Corporation as contemplated in Section 6(b)
hereof, or (ii) in all other cases, upon the earlier of (x) receipt of such
notice, (y) three (3) Business Days after the mailing of such notice if
sent by registered mail (unless first-class mail shall be specifically
permitted for such notice under the terms hereof) or (z) the Business Day
following sending such notice by overnight courier, in any case with
postage or delivery charges prepaid, addressed: if to the Corporation, to
its offices at 370 Seventeenth Street, Suite 2750, Denver, CO 80202,
Attention: Erik B. Carlson, or to an agent of the Corporation designated as
permitted by the Certificate of Incorporation, or, if to any holder of the
Series A Preferred Stock, to such holder at the address of such holder of
the Series A Preferred Stock as listed in the stock record books of the
Corporation, or to such other address as the Corporation or holder, as the
case may be, shall have designated by notice similarly given.
<PAGE>
IN WITNESS WHEREOF, TransMontaigne Inc. has caused this
Certificate of Designations to be signed by its Chief Executive Officer and
attested to by its Secretary, all as of the 25th day of March, 1999.
TRANSMONTAIGNE INC.
By: /s/ Cortlandt S. Dietler
--------------------------
Cortlandt S. Dietler
Chief Executive Officer
Attest:
By: /s/ Erik B. Carlson
------------------------
Erik B. Carlson
Secretary
<PAGE>
Exhibit 99.4
WARRANT AGREEMENT
Dated as of
March 25, 1999
between
TRANSMONTAIGNE INC.
and
BankBoston, N.A.
as the Warrant Agent
--------------------------------------------------------------
Warrants for
Common Stock of
Transmontaigne Inc.
--------------------------------------------------------------
<PAGE>
WARRANT AGREEMENT dated as of March 25, 1999
between TRANSMONTAIGNE INC., a Delaware corporation
(the "Company"), and BankBoston, N.A., as Warrant Agent
(the "Warrant Agent").
The Company desires, FOR VALUE RECEIVED, to issue the Warrants
described herein (the "Warrants," which term includes all Warrants issued
in substitution therefor). The registered holder (the "Holder") of each
Warrant, is entitled, subject to the provisions of the Warrant Certificate,
to purchase 0.6 shares (as such number may be adjusted in accordance with
Section 5 hereof) of the Company's Common Stock, par value $0.01 per share
(such class of stock, together with any capital stock of the Company into
which such class of stock shall be converted, being referred to herein as
"Common Stock"), at $14.00 per share (as such number may be adjusted in
accordance with Section 5 hereof) (the "Exercise Price"). The number of
shares of Common Stock to be received upon the exercise of each Warrant and
the Exercise Price shall be adjusted from time to time as hereinafter set
forth. The shares of Common Stock or other securities or property
deliverable upon such exercise, as adjusted from time to time, are
hereinafter sometimes referred to as "Warrant Shares."
The Warrants will be originally issued in connection with the
issue and sale by the Company of up to 200,000 shares of the Company's
Series A Convertible Preferred Stock, par value $.01 per share (the "Series
A Preferred Stock"). The Warrants and the Series A Preferred Stock have
been issued pursuant to the Stock and Warrant Purchase Agreements (the
"Purchase Agreements"), between the Company and each of the Purchasers
named therein (the "Purchasers"). The Warrants originally so issued
evidence rights to purchase an aggregate of up to 8,000,400 Warrant Shares
at the Exercise Price. The Purchase Agreement under which each Warrant was
originally issued is herein referred to as the "Purchase Agreement." Each
Warrant is subject to the provisions, and is entitled to the benefits, of
the Purchase Agreement.
Section 1. Warrant Certificates; Transfer, Exchange, Assignment,
Loss of Warrant or Conversion.
1.1. Warrant Certificates. All Warrant Certificates shall be
substantially in the form of Annex A hereto, with such modifications as may
be approved by the Board of Directors of the Company. The Warrant
Certificates will be imprinted with a legend in substantially the following
form:
NEITHER THE WARRANT REPRESENTED BY THIS CERTIFICATE
NOR THE COMMON STOCK ISSUABLE UPON THE EXERCISE
HEREOF HAS BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY
STATE SECURITIES LAWS, AND NEITHER MAY BE SOLD OR
OTHERWISE TRANSFERRED WITHOUT REGISTRATION UNDER
THE SECURITIES ACT AND ANY APPLICABLE STATE
SECURITIES LAW UNLESS AN EXEMPTION FROM
REGISTRATION IS THEN AVAILABLE.
<PAGE>
1.2. Execution and Countersignature. Two Officers shall sign the
Warrant Certificate for the Company by manual or facsimile signature. If
required by law, the Company's seal shall be impressed, affixed, imprinted
or reproduced on the Warrant Certificate and may be in facsimile form.
If an Officer whose signature is on a Warrant Certificate no
longer holds that office at the time the Warrant Agent countersigns the
Warrant Certificate, the Warrants evidenced by such Warrant Certificate
shall be valid nevertheless.
At any time and from time to time after the execution of this
Warrant Agreement, the Warrant Agent or an agent reasonably acceptable to
the Company shall upon receipt of a written order of the Company signed by
two Officers or by an Officer and either an Assistant Secretary or an
Assistant Treasurer of the Company manually countersign for original issue
a Warrant Certificate evidencing the number of Warrants specified in such
order; provided that the Warrant Agent shall be entitled to receive an
Officers' Certificate and an Opinion of Counsel of the Company as to
compliance with this Agreement that it may reasonably request in connection
with such countersignature of Warrants. Such order shall specify the number
of Warrants to be evidenced on the Warrant Certificate to be countersigned,
the date on which such Warrant Certificate is to be countersigned and the
number of Warrants then authorized.
The Warrants evidenced by a Warrant Certificate shall not be
valid until an authorized signatory of the Warrant Agent manually
countersigns the Warrant Certificate. The signature shall be conclusive
evidence that the Warrant Certificate has been countersigned under this
Agreement.
1.3. Certificate Register. The Warrant Agent shall keep a
register ("Certificate Register") of the Warrant Certificates and of their
transfer and exchange. The Certificate Register shall show the names and
addresses of the respective Holders and the date and number of Warrants
evidenced on the face of each of the Warrant Certificates.
1.4. Transfer. The Warrants may be assigned in whole or in part
or transferred in whole or in part; subject, however, to compliance with
the provisions of the Securities Act and the rules and regulations
promulgated thereunder and any applicable state securities laws and,
further, provided, that the Holder and any proposed transferee deliver to
the Company such certifications, legal opinions or other information as the
Company may reasonably require to confirm that such transfer is being made
in compliance with, pursuant to an exemption from, or in a transaction not
subject to, the registration requirements of the Securities Act or any
state securities laws.
1.5. Procedure for Assignment or Transfer. The Warrants shall be
transferable only on the books of the Warrant Agent maintained at the
Warrant Agent's or its agent's principal shareholder services office upon
delivery of such Warrants together with the form of assignment, in
substantially the form attached as Annex C hereto, duly completed and
signed by the Holder or by its duly authorized attorney or representative,
or accompanied by proper evidence of succession, assignment or authority to
transfer in form acceptable to the Warrant Agent and the Company. The
Warrant Agent or Company may, in its discretion, require, as a condition to
any transfer of Warrants, a signature guarantee by a participant in a
recognized signature guarantee medallion program in the United States. Upon
<PAGE>
any registration of transfer, the Warrant Agent shall deliver a new Warrant
Certificate or Certificates of like tenor and evidencing in the aggregate a
like number of Warrants to the person entitled thereto in exchange for such
Warrants, subject to the limitations provided herein, without any charge
except for any tax or other governmental charge imposed in connection
therewith. The Warrants may be divided or combined with other Warrants
which carry the same rights upon presentation thereof at the principal
office of the Warrant Agent together with a written notice signed by the
Holder thereof, specifying the denominations in which new Warrants are to
be issued.
1.6. Loss, Theft, Destruction or Mutilation. Upon receipt by the
Warrant Agent of evidence satisfactory to it of the loss, theft,
destruction or mutilation of a Warrant Certificate, and (in the case of
loss, theft or destruction) of reasonably satisfactory indemnification,
including the posting of a surety bond, to the Warrant Agent or (in the
case of mutilation) presentation of a Warrant Certificate for surrender and
cancellation, the Warrant Agent will execute and deliver a new Warrant
Certificate of like tenor in lieu thereof and any such lost, stolen,
destroyed or mutilated Warrant shall thereupon become void.
1.7. Conversion. Any Warrant underlying a Warrant Certificate
which is exercised in whole or in part shall be canceled by the Company,
and no new Warrant Certificate shall be issued in lieu of any Warrants
which have been exercised. The Company shall issue a new Warrant
Certificate with respect to any Warrants which were not exercised and were
represented by a Warrant Certificate which was exercised in part.
Section 2. Exercise of Warrant.
2.1. Manner of Exercise. (a) Each Warrant may be exercised by the
Holder, in whole or in part, at any time or from time to time through and
including March 24, 2004 (the "Expiration Date") during normal business
hours on any Business Day (as defined in the Purchase Agreement) by
surrender of such Warrant together with the form of subscription duly
executed by such Holder in substantially the form attached as Annex B
hereto, to the Company at its office designated pursuant to the Purchase
Agreement (or, if such exercise is in connection with an underwritten
public offering of Warrant Shares subject to such Warrant, at the location
at which the underwriting agreement requires that such Warrant Shares be
delivered), with a copy of such executed form of subscription to the
Warrant Agent and, if different, the Transfer Agent for the Common Stock.
(b) Payment of the Exercise Price for the Warrant Shares shall be
made at the Warrant Agent's principal shareholder services offices,
presently located at 150 Royall Street, Canton, Massachusetts, 02021, (i)
in immediately available (same day) funds by certified or bank check or
wire transfer payable to the order of the Company, in any case, in an
amount equal to (x) the number of Warrant Shares specified in such form of
subscription, multiplied by (y) the then current Exercise Price or (ii) in
the manner provided in Section 2.6 hereof. The Holder shall thereupon be
entitled to receive the number of Warrant Shares specified in such form of
subscription (plus cash in lieu of any fractional shares as provided in
Section 2.3 hereof).
2.2. Effective Date. Each exercise of a Warrant pursuant to
Section 2.1 hereof shall be deemed to have been effected immediately prior
to the close of business on the Business Day on which such Warrant is
surrendered to the Company as provided in Section 1.1 hereof
<PAGE>
unless a later time is specified in writing by the Holder surrendering such
Warrant (except that if such exercise is in connection with an underwritten
public offering of Warrant Shares subject to such Warrant, then such exercise
shall be deemed to have been effected upon such surrender of such Warrant
unless a later time is specified in writing by the Holder surrendering such
Warrant). On each such day that an exercise of a Warrant is deemed effected,
the person or persons in whose name or names any certificate or certificates
for Warrant Shares are issuable upon such exercise (as provided in Section 2.3
hereof) shall be deemed to have become the holder of record thereof.
2.3. Warrant Share Certificates, Cash for Fractional Warrant
Shares and Reissuance of Warrants. As promptly as practicable after the
exercise of a Warrant, in whole or in part, and in any event within five
(5) Business Days thereafter (unless such exercise shall be in connection
with a public offering of Warrant Shares subject to such Warrant, in which
event concurrently with such exercise), the Company at its expense
(including the payment by it of any applicable issue, stamp or other taxes,
except for any transfer tax payable if the Warrant Shares are to be issued
to a person other than the Holder) will cause to be issued in the name of
and delivered to the Holder or, subject to Section 6 of the Purchase
Agreement, as the Holder may direct:
(i) a certificate or certificates for the number of Warrant
Shares to which the Holder shall be entitled upon such exercise plus, in
lieu of any fractional share to which the Holder would otherwise be
entitled, cash in an amount equal to the same fraction of the Market Price
(as defined in Section 5.2(D) hereof) per Warrant Share on the Business
Day next preceding the date of such exercise; and
(ii) in case such exercise is in part only, a new Warrant
Certificate or Certificates, substantially identical hereto, representing
the rights formerly represented by such Warrant which have not expired
or been exercised.
2.4. Acknowledgment of Obligation. The Company will, at the time
of or at any time after each exercise of a Warrant, upon the request of the
Holder thereof or of any Warrant Shares issued upon such exercise, acknowledge
in writing its continuing obligation to afford to such Holder all rights, if
any (including, without limitation, any rights to registration of any such
Warrant Shares pursuant to the Registration Rights Agreement (as defined in the
Purchase Agreement)) to which such Holder shall continue to be entitled under
such Warrant, the Purchase Agreement and the Registration Rights Agreement;
provided, that if any such Holder shall fail to make any such request, the
failure shall not affect the continuing obligation of the Company to afford
such rights to such Holder.
2.5. Conditional Exercise. Notwithstanding any other provision
hereof, if any exercise of any portion of a Warrant is to be made in
connection with a public offering of Warrant Shares or any transaction
described in Section 5.6 hereof, the exercise of any portion of such
Warrant may, at the election of the Holder, be conditioned upon the
consummation of the public offering or such transaction, in which case such
exercise shall not be deemed to be effective until the consummation of such
public offering or transaction.
2.6. Cashless Exercise of Warrant. In addition to and without
limiting the rights of the Holder under the terms of the Warrants, the
<PAGE>
Holder shall have the option, but not the obligation, to convert its
Warrants, or any portion thereof (the "Conversion Right"), into Warrant
Shares as provided in this Section 2.6 at any time on or prior to the
Expiration Date. Upon exercise of the Conversion Right with respect to a
particular number of shares subject to such Warrants (the "Converted
Warrant Shares"), the Company shall deliver to the Holder (without payment
by the Holder of any Exercise Price or any cash or other consideration)
that number of Warrant Shares equal to the quotient obtained by dividing
(i) the value of such Warrant (or the specified portion hereof) on the
effective date of the exercise of the Conversion Right, as provided in
Section 2.2 hereof (the "Conversion Date"), which value shall be determined
by subtracting (x) the aggregate exercise price of the Converted Warrant
Shares immediately prior to the exercise of the Conversion Right from (y)
the aggregate Market Price (determined as provided in Section 5.2(D)
hereof) of such Converted Warrant Shares on the Conversion Date by (ii) the
Market Price of one Warrant Share on the Conversion Date.
Section 3. Reservation of Shares. The Company shall at all times
after the date hereof and until the Expiration Date reserve and keep
available, out of its authorized and unissued stock, solely for the purpose
of effecting the issuance and delivery upon exercise of the Warrants, the
number of Warrant Shares as shall be required for issuance and delivery
upon exercise in full of the Warrants. The Company shall from time to time,
in accordance with the laws of the State of Delaware, use its best efforts
to obtain stockholder approval to increase the authorized number of shares
of Common Stock if at any time the number of shares of authorized but
unissued Common Stock shall be insufficient to permit the exercise in full
of the Warrants.
Section 4. Warrant Certificate Holder Not Deemed a Stockholder.
The Holder shall not, solely because of holding a Warrant, be entitled to
vote, receive dividends or be deemed the holder of Common Stock or any
other securities of the Company which may at any time be issuable on the
exercise of the Warrants for any purpose whatsoever, nor shall anything
contained herein be construed to confer upon the Holder, as such, any of
the rights of a stockholder of the Company, including without limitation,
any right to vote for the election of directors or upon any matters
submitted to stockholders at any meeting thereof, or to give or withhold
consent to any corporate action (whether upon any recapitalization,
issuance of stock, reclassification of stock, change of par value or change
of stock to no par value, consolidation, merger, conveyance or otherwise),
or to receive notice of meetings or other actions affecting stockholders,
or to receive dividend or subscription rights, or otherwise, until such
Warrant shall have been exercised in accordance with the provisions hereof.
Section 5. Anti-Dilution. The number of Warrant Shares for which a Warrant
is exercisable and/or the Exercise Price at which such Warrant Shares may
be purchased upon exercise of such Warrant shall be subject to adjustment
from time to time as set forth in this Section 5.
5.1. Increase or Decrease in Conversion Price of Series A
Preferred Stock. If, at any time, there is an increase or decrease in the
Conversion Price of the Series A Preferred Stock under the Certificate of
<PAGE>
Designation of the Series A Convertible Preferred Stock such that there is a
new Conversion Price (the "Adjusted Conversion Price"), then (A) the Exercise
Price as to the Common Stock into which a Warrant is exercisable immediately
prior to such increase or decrease in Conversion Price shall be adjusted by
multiplying the Exercise Price by a fraction, of which (x) the numerator shall
be the Adjusted Conversion Price and (y) the denominator shall be the
Conversion Price as to the Common Stock into which the Series A Preferred Stock
is exercisable immediately prior to such increase or decrease in Conversion
Price and (B) the Warrant Shares for which such Warrant is exercisable
immediately after the occurrence of such increase or decrease in the Conversion
Price shall be adjusted by multiplying the number of Warrant Shares for which
such Warrant is exercisable immediately prior to the occurrence of such
increase or decrease in Conversion Price by a fraction, of which (x) the
numerator shall be the Conversion Price as to the Common Stock into which the
Series A Preferred Stock is exercisable immediately prior to such increase or
decrease in Conversion Price and (y) the denominator shall be the Adjusted
Conversion Price.
5.2. Other Provisions Applicable to Adjustments under this
Section. The following provisions shall be applicable to making adjustments
of the Warrant Shares for which a Warrant is exercisable and the Exercise
Price at which such Warrant Shares may be purchased upon exercise of such
Warrant provided for in this Section 5:
(A) When Adjustments to Be Made. The adjustments required
by this Section 5 shall be made whenever and as often as any event
requiring an adjustment shall occur, except that any adjustment of
the Exercise Price that would otherwise be required may be postponed
(except in the case of a subdivision or combination of shares of the
Common Stock, as provided for in Section 5(d)(1) of the Certificate
of Designations of the Series A Preferred Stock) if such adjustment
either by itself or with other adjustments not previously made amount
to a change in the Exercise Price of less than $.05. Any adjustment
representing a change of less than such minimum amount (except as
aforesaid) which is postponed shall be carried forward and made as
soon as such adjustment, together with other adjustments required by
this Section 5 and not previously made, would result in a minimum
adjustment. For the purpose of any adjustment, any event shall be
deemed to have occurred at the close of business on the date of its
occurrence.
(B) Fractional Interests. In computing adjustments under
this Section 5, fractional interests in the Common Stock shall be
taken into account to the nearest 1/100th of a share.
(C) Challenge to Good Faith Determination. Whenever the
Board of Directors of the Company shall be required to make a
determination in good faith of the fair value of any item under this
Section 5, such determination may be challenged in good faith by
holders of two-thirds of the Warrants and any dispute shall be
resolved by an investment banking firm of recognized national
<PAGE>
standing jointly selected by the Company. The fees of such
investment banker shall be borne by such holders unless such
investment banker's calculation results in a downward adjustment of
the Exercise Price exceeding 110% of the adjustment made in
accordance with the Company's calculation, in which case such fees
shall be paid by the Company.
(D) Determination of Market Price. "Market Price" means,
as to any security on the date of determination thereof, the average
of the closing prices of such security's sales on all principal
United States securities exchanges on which such security may at the
time be listed, or, if there shall have been no sales on any such
exchange on any day, the last trading price of such security on such
day, or if there is no such price, the average of the bid and asked
prices at the end of such day, on the Nasdaq Stock Market, in each
such case averaged for a period of twenty (20) consecutive Business
Days prior to the day when the Market Price is being determined
(except that, for purposes of the calculation of the Market Price
in Section 1.6, such prices will be averaged for a period of ten (10)
consecutive Business Days prior to the day when the Market Price is
being determined under Section 1.6); provided, that if such security
is listed on any United States securities exchange the term "Business
Days" as used in this sentence means business days on which such
exchange is open for trading. Notwithstanding the foregoing, with
respect to the issuance of any security by the Company in an
underwritten public offering, the Market Price shall be the per share
purchase price paid by the public investors. If at any time such
security is not listed on any exchange or the Nasdaq Stock Market,
the Market Price shall be deemed to be the fair value thereof
determined by an investment banking firm of nationally recognized
standing selected by the Board of Directors of the Company, as of the
most recent practicable date when the determination is to be made,
taking into account the value of the Company as a going concern, and
without taking into account any lack of liquidity of such security or
any discount for a minority interest.
5.3. Reorganization, Reclassification, Merger or Consolidation.
If the Company shall at any time reorganize or reclassify the outstanding
shares of Common Stock (other than a change in par value, or from no par
value to par value, or from par value to no par value, or as a result of a
subdivision or combination) or consolidate with or merge into another
corporation (where the Company is not the continuing corporation after such
merger or consolidation), the Warrants shall automatically become
convertible into the same kind and number of shares of stock and other
securities, cash or other property (and upon the same terms and with the
same rights) as would have been receivable by a holder of the number of
Warrant Shares into which such Warrants could have been exercised
immediately prior to such reorganization, reclassification, consolidation
or merger. The Exercise Price upon such conversion shall be the Exercise
Price that would otherwise be in effect pursuant to the terms hereof.
Notwithstanding anything herein to the contrary, the Company will not
effect any such reorganization, reclassification, merger or consolidation
unless prior to the consummation thereof, the corporation which may be
required to deliver any stock, securities or other assets upon the exercise
of the Warrants shall agree by an instrument in writing to deliver such
stock, cash, securities or other assets to the holders of the Warrants. A
sale, transfer or lease of all or substantially all of the assets of the
Company to another person shall be deemed a reorganization,
reclassification, consolidation or merger for the foregoing purposes.
<PAGE>
5.4. Exceptions to Adjustment of Exercise Price. Anything herein
to the contrary notwithstanding, the Company shall not make any adjustment
of the Exercise Price or the number of Warrant Shares for which a Warrant
is exercisable (i) in the case of the issuance of shares of Common Stock
(a) upon exercise of all or any portion of the Warrants, (b) on any
conversion of shares of Series A Preferred Stock, (c) pursuant to stock
options or other equity incentive plans for employees, officers and/or
directors of the Company or (d) pursuant to the terms of any other
securities outstanding on the Initial Issuance Date or (ii) in the case of
issuance of additional shares of Series A Preferred Stock as dividends on
Series A Preferred Stock. Further, (A) the Company shall make no further
adjustments of the Exercise Price or the number of Warrant Shares into
which a Warrant is exercisable when no shares of Series A Preferred Stock
remain outstanding and (B) upon the conversion of any shares of Series A
Preferred Stock held by any Holder, the Company shall make no further
adjustments of the Exercise Price or the number of Warrant Shares for which
Warrants are exercisable with respect to Warrants held by such Holder equal
to the aggregate number of Warrants held by such Holder multiplied by a
fraction where (x) the numerator is the total shares of Series A Preferred
Stock converted into Common Stock by such Holder and (y) the denominator is
the original number of shares of Series A Preferred Stock held by such
Holder.
5.5. Officer's Certificate. Upon each adjustment of the Exercise
Price and upon each change in the Warrant Shares issuable upon the exercise
of a Warrant, and in the event of any change in the rights of a Holder by
reason of other events herein set forth, then and in each such case, the
Company will promptly obtain a certificate of a duly authorized officer of
the Company, stating the adjusted Exercise Price and the new Warrant Shares
so issuable, or specifying the other shares of the Common Stock, securities
or assets and the amount thereof receivable as a result of such change in
rights, and setting forth in reasonable detail the method of calculation
and the facts upon which such calculation is based. The Company will
promptly mail a copy of such certificate to the Holders and to the Warrant
Agent. If the holders of two-thirds of the Warrants disagree with such
calculation, the Company agrees to obtain within thirty (30) Business Days
an opinion of a firm of independent certified public accountants selected
by the Company's Board of Directors to review such calculation and the
opinion of such firm of independent certified public accountants shall be
final and binding on the parties and shall be conclusive evidence of the
correctness of the computation with respect to any such adjustment of the
Exercise Price and any such change in the number of Warrant Shares so
issuable. The fees of such accounting firm shall be borne by such holders
unless such accounting firm's calculation results in a downward adjustment
of the Exercise Price exceeding 110% of the adjustment made in accordance
with the Company's calculation, in which case such fees shall be paid by
the Company.
<PAGE>
5.6. Company to Prevent Dilution. In case at any time or from
time to time conditions arise by reason of action taken by the Company,
which in the good faith opinion of its Board of Directors are not
adequately covered by the provisions of this Section 5, and which might
materially and adversely affect the exercise rights of the Holders, the
Board of Directors of the Company shall appoint such firm of independent
certified public accountants, which shall give their opinion upon the
adjustment, if any, on a basis consistent with the standards established in
the other provisions of this Section 5, necessary with respect to the
Exercise Price, so as to preserve, without dilution (other than as
specifically contemplated by this Warrant), the exercise rights of the
Holders. Upon receipt of such opinion, the Board of Directors of the
Company shall forthwith make the adjustments described therein.
5.7. No Impairment. The Company will not, by amendment of its
Certificate of Incorporation or through any reorganization,
recapitalization, transfer of assets, consolidation, merger, dissolution,
issue or sale of securities or any other voluntary action, avoid or seek to
avoid the observance or performance of any of the terms to be observed or
performed hereunder by the Company (it being understood that the Company
will not be prohibited from taking actions that are permitted by the terms
hereunder) but will at all times in good faith assist in the carrying out
of all the provisions of Section 5 hereof and in the taking of all such
action as may be necessary or appropriate in order to protect the
conversion rights of the holders of the Warrants against impairment.
Section 6. Character of Shares of Stock.
All shares of the Common Stock issuable upon the exercise of a
Warrant shall, when issued to a Holder, be duly authorized, validly issued,
fully paid and nonassessable, free and clear of any lien or encumbrance and
without any preemptive rights.
Section 7. Notice to Holder.
So long as any Warrant shall be outstanding, (i) if the Company
shall pay any dividend or make any distribution upon the Common Stock, (ii)
if the Company shall offer to the holders of Common Stock, for subscription
or purchase by them, any shares of any class of stock of the Company or any
other rights or (iii) if there shall be any capital reorganization of the
Company, reclassification of the capital stock of the Company,
consolidation or merger of the Company with or into another corporation,
sale, lease or transfer of all or substantially all of the property and
assets of the Company, voluntary or involuntary dissolution, liquidation or
winding up of the Company, then in any such event, the Company shall cause
to be mailed by certified mail to each Holder, at least 30 days prior to
the relevant date of the event described above, a notice containing a brief
description of the proposed action and stating the date or expected date on
which a record is to be taken for the purpose of such dividend,
distribution or rights, or the date or expected date such reclassification,
reorganization, consolidation, merger, conveyance, lease or transfer,
dissolution, liquidation or winding up shall take place or be voted upon by
holders of the Common Stock of record, and the date or expected date as of
which the holders of Common Stock of record shall be entitled to exchange
their shares of Common Stock for securities or other property deliverable
upon any such event.
<PAGE>
Section 8. Disposition of Warrant Shares.
The stock certificates of the Company that will evidence the
Warrant Shares or any other security issued or issuable upon exercise of
this Warrant will be imprinted with a legend in substantially the following
form:
The securities represented by this Certificate have not been
registered under the Securities Act of 1933, as amended (the "Act"),
or any applicable state securities laws and may not be sold or
otherwise transferred (whether or not for consideration) unless
registered under the Act and any applicable state securities laws
unless an exemption from registration is then available.
Except as provided in the Registration Rights Agreement, the Company does
not agree to register any of the Warrant Shares for distribution in
accordance with the provisions of the Securities Act or any applicable
state securities laws, and the Company has not agreed to comply with any
exemption from registration under the Securities Act or any applicable
state securities laws for the resale of the Warrant Shares. Hence, it is
the understanding of the Holder that by virtue of the provisions of certain
rules respecting "restricted securities" promulgated by the Securities and
Exchange Commission, the Warrant Shares may be required to be held
indefinitely, unless and until registered under the Securities Act and any
applicable state securities laws unless an exemption from such registration
is available, in which case the Holders may still be limited as to the
number of Warrant Shares that may be sold.
Section 9. Governing Law.
This Warrant Agreement and the Warrant Certificates shall be
construed in accordance with the laws of the State of New York applicable
to contracts executed and to be performed wholly within such state without
regard to any conflicts of laws principles.
Section 10. Notice.
Any notice, demand, document or other communication given or
delivered hereunder shall be in writing, and may be (i) personally
delivered, (ii) given or made by United States registered or certified
mail, return receipt requested, postage prepaid, or (iii) given or made by
overnight courier or express mail for delivery the next Business Day,
delivery charges prepaid, addressed as follows:
If to the Company: TransMontaigne Inc.
370 Seventeenth Street, Suite 2750
Denver, CO 80202
Facsimile No.: 303-626-8228
Attention: Erik B. Carlson
with a copy to:
Cravath, Swaine & Moore
Worldwide Plaza
825 Eighth Avenue
New York, NY 10019-7475
Facsimile No.: (212) 474-3700
Attention: Kris F. Heinzelman
<PAGE>
If to the Holder: to the addresses indicated on Schedule 1 to the Purchase
Agreements
If to the Warrant Agent: BankBoston, N.A.
c/o EquiServe Limited Partnership
150 Royall Street
Canton, Massachusetts 02021
Attention: Client Administration
The Company, the Warrant Agent and the Holders shall each have the right to
designate a different address for itself by notice similarly given. All
such notices, demands, documents or other communication will be deemed to
be delivered (i) upon receipt, if personally delivered, (ii) on the third
full Business Day following the day of mailing, if sent by United States
registered or certified mail and (iii) on the Business Day following the
date it was sent, if sent by overnight courier or express mail for delivery
the next Business Day.
Section 11. Company Will Not Close Books.
The Company will at no time close its transfer books against the
transfer of Warrants or of any shares of Common Stock issued or issuable
upon the exercise of Warrants in any manner which interferes with the
timely exercise of the Warrants.
Section 12. Successors and Assigns.
This Warrant Agreement and the rights evidenced hereby shall
inure to the benefit of and be binding upon the successors of the Company,
the Warrant Agent and the successors and assigns of the Holders. The
provisions of this Warrant Agreement are intended to be for the benefit of
all Holders from time to time of Warrants and shall be enforceable by any
such Holder.
Section 13. Amendment.
(a) The terms and provisions of this Warrant Agreement may be
amended, waived, modified or terminated only with the written consent of
(1) the Company, (2) the Warrant Agent and (3) either (A) the Holder or (B)
in the case of an amendment, waiver, modification or termination applicable
to all Warrants, the holders of Warrants representing two- thirds of the
Warrant Shares obtainable upon exercise of the Warrants; provided, that
without the consent of each Holder affected thereby, an amendment, waiver,
modification or termination may not: (i) reduce the amount of holders that
must consent to an amendment, waiver, modification or termination, (ii)
change the Exercise Price or the Expiration Date of the Warrants or (iii)
make any changes in this Section 13.
(b) The Company agrees that all holders of Warrants shall be
notified by the Company in advance of any proposed amendment, waiver,
modification or termination of this Warrant Agreement, but failure to give
such notice shall not in any way affect the validity of any such amendment,
waiver, modification or termination. In addition, promptly after obtaining
<PAGE>
the written consent of the holders as herein provided, the Company shall
transmit a copy of any amendment, waiver, modification or termination which
has been adopted to all holders of Warrants then outstanding, but failure
to transmit copies shall not in any way affect the validity of any such
amendment, waiver, modification or termination.
Section 14. Warrant Agent.
14.1. Appointment of Warrant Agent. The Company hereby appoints
the Warrant Agent to act as agent for the Company in accordance with
provisions of this Agreement and the Warrant Agent hereby accepts such
appointment.
14.2. Rights and Duties of Warrant Agent. (a) Agent for the
Company. In acting under this Warrant Agreement and in connection with the
Warrant Certificates, the Warrant Agent is acting solely as agent of the
Company and does not assume any obligation or relationship or agency or
trust for or with any of the Holders of Warrant Certificates or beneficial
owners of Warrants.
(b) Counsel. The Warrant Agent may consult with counsel
satisfactory to it, and the advice of such counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in accordance with
the advice of such counsel.
(c) Documents. The Warrant Agent shall be protected and shall
incur no liability for or in respect of any action taken or thing suffered
by it in reliance upon any Warrant Certificate, notice, direction, consent,
certificate, affidavit, statement or other paper or document reasonably
believed by it to be genuine and to have been presented or signed by the
proper parties. (d) No Implied Obligations. The Warrant Agent shall be
obligated to perform only such duties as are herein and in the Warrant
Certificates specifically set forth and no implied duties or obligations
shall be read into this Agreement or the Warrant Certificates against the
Warrant Agent. The Warrant Agent shall not be under any obligation to take
any action hereunder which may tend to involve in it any expense or
liability for which it does not receive indemnity if such indemnity is
reasonably requested. The Warrant Agent shall not be accountable or under
any duty or responsibility for the use by the Company of any of the Warrant
Certificates countersigned by the Warrant Agent and delivered by it to the
Holders or on behalf of the Holders pursuant to this Agreement or for the
application by the Company of the proceeds of the Warrants. The Warrant
Agent shall have no duty or responsibility in case of any default by the
Company in the performance of its covenants or agreements contained herein
or in the Warrant Certificates or in the case of the receipt of any written
demand from a holder with respect to such default, including any duty or
responsibility to initiate or attempt to initiate any proceedings at law or
otherwise.
(e) Not Responsible for Adjustments or Validity of Stock. The
Warrant Agent shall not at any time be under any duty or responsibility to
any Holder to determine whether any facts exist that may require an
adjustment of the number of shares of Common Stock purchasable upon
exercise of each Warrant or the Exercise Price, or with respect to the
nature or extent of any adjustment when made or with respect to the method
<PAGE>
employed, or herein or in any supplemental agreement provided to be
employed, in making the same. The Warrant Agent shall not be accountable
with respect to the validity or value of any shares of Common Stock or of
any securities or property which may at any time be issued or delivered
upon the exercise of any Warrant or upon any adjustment, and it makes no
representation with respect thereto. The Warrant Agent shall not be
responsible for any failure of the Company to make any cash payment or to
issue, transfer or deliver any shares of Common Stock or stock certificates
upon the surrender of any Warrant Certificate for the purpose of exercise
or upon any adjustment, or to comply with any of the covenants of the
Company contained herein.
14.3. Individual Rights of Warrant Agent. The Warrant Agent and
any stockholder, director, officer or employee of the Warrant Agent may
buy, sell or deal in any of the Warrants or other securities of the Company
or its affiliates or become pecuniarily interested in transactions in which
the Company or its affiliates may be interested, or contract with or lend
money to the Company or its affiliates or otherwise act as fully and freely
as though it were not the Warrant Agent under this Agreement. Nothing
herein shall preclude the Warrant Agent from acting in any other capacity
for the Company or for any other legal entity.
14.4. Warrant Agent's Disclaimer. The Warrant Agent shall not be
responsible for and makes no representation as to the validity or adequacy
of this Agreement or the Warrant Certificates and it shall not be
responsible for any statement in this Agreement or the Warrant Certificates
other than its countersignature thereon.
14.5. Compensation and Indemnity. The Company agrees to pay the
Warrant Agent reasonable fees for services hereunder, and to reimburse the
Warrant Agent for its reasonable out-of-pocket expenses as incurred. The
Company shall indemnify the Warrant Agent against any loss, liability or
expense (including reasonable agents' and attorneys' fees and expenses)
incurred by it without negligence or bad faith on its part arising out of
or in connection with the acceptance or performance of its duties under
this Agreement. The Warrant Agent shall notify the Company promptly of any
claim for which it may seek indemnity. The Company need not reimburse any
expense or indemnity against any loss or liability incurred by the Warrant
Agent through wilful misconduct, gross negligence or bad faith. The
Company's payment and indemnity obligations pursuant to this Section 14.5
shall survive the termination of this Agreement.
14.6. Successor Warrant Agent. (a) The Company To Provide Warrant
Agent. The Company agrees for the benefit of the Holders that there shall
at all times be a Warrant Agent hereunder until all the Warrants have been
exercised or are no longer exercisable.
(b) Resignation and Removal. The Warrant Agent may at any time
resign by giving written notice to the Company of such intention on its
part, specifying the date on which its desired resignation shall become
effective; provided, however, that such date shall not be less than 60 days
after the date on which such notice is given unless the Company otherwise
agrees. The Warrant Agent hereunder may be removed at any time by the
filing with it of an instrument in writing signed by or on behalf of the
Company and specifying such removal and the date when it shall become
effective, which date shall not be less than 60 days after such notice is
given unless the Warrant Agent otherwise agrees. Any removal under this
Section 14.6 shall take effect upon the appointment by the Company as
<PAGE>
hereinafter provided of a successor Warrant Agent (which shall be a bank or
trust company authorized under the laws of the jurisdiction of its
organization to exercise corporate trust powers) and the acceptance of such
appointment by such successor Warrant Agent.
(c) The Company To Appoint Successor. In case at any time the
Warrant Agent shall resign, or shall be removed, or shall become incapable
of acting, or shall be adjudged a bankrupt or insolvent, or shall commence
a voluntary case under the Federal bankruptcy laws, as now or hereafter
constituted, or under any other applicable Federal or State bankruptcy,
insolvency or similar law or shall consent to the appointment of or taking
possession by a receiver, custodian, liquidator, assignee, trustee,
sequestrator (or other similar official) of the Warrant Agent or its
property or affairs, or shall make an assignment for the benefit of
creditors, or shall admit in writing its inability to pay its debts
generally as they become due, or shall take corporate action in furtherance
of any such action, or a decree or order for relief by a court having
jurisdiction in the premises shall have been entered in respect of the
Warrant Agent in an involuntary case under the Federal bankruptcy laws, as
now or hereafter constituted, or any other applicable Federal or State
bankruptcy, insolvency or similar law; or a decree or order by a court
having jurisdiction in the premises shall have been entered for the
appointment of a receiver, custodian, liquidator, assignee, trustee,
sequestrator (or similar official) of the Warrant Agent or of its property
or affairs, or any public officer shall take charge or control of the
Warrant Agent or of its property or affairs for the purpose of
rehabilitation, conservation, winding up of or liquidation, a successor
Warrant Agent, qualified as aforesaid, shall be appointed by the Company by
an instrument in writing, filed with the successor Warrant Agent. Upon the
appointment as aforesaid of a successor Warrant Agent and acceptance by the
successor Warrant Agent of such appointment, the incumbent Warrant Agent
shall cease to be Warrant Agent hereunder; provided, however, that in the
event of the resignation of the Warrant Agent hereunder, such resignation
shall be effective on the earlier of (i) the date specified in the Warrant
Agent's notice of resignation and (ii) the appointment and acceptance of a
successor Warrant Agent hereunder.
(d) Successor To Expressly Assume Duties. Any successor Warrant
Agent appointed hereunder shall execute, acknowledge and deliver to its
predecessor and to the Company an instrument accepting such appointment
hereunder, and thereupon such successor Warrant Agent, without any further
act, deed or conveyance, shall become vested with all the rights and
obligations of such predecessor with like effect as if originally named as
Warrant Agent hereunder, and such predecessor, upon payment of its charges
and disbursements then unpaid, shall thereupon become obligated to
transfer, deliver and pay over, and such successor Warrant Agent shall be
entitled to receive, all monies, securities and other property on deposit
with or held by such predecessor, as Warrant Agent hereunder.
(e) Successor by Merger. Any corporation into which the Warrant
Agent hereunder may be merged or consolidated, or any corporation resulting
from any merger or consolidation to which the Warrant Agent shall be a
party, or any corporation to which the Warrant Agent shall sell or
otherwise transfer all or substantially all of its corporate trust or
shareholder services business; provided that it shall be qualified as
aforesaid, shall be the successor Warrant Agent under this Agreement
without the execution or filing of any paper or any further act on the part
of any of the parties hereto.
<PAGE>
Section 15. Headings.
Section headings in this Warrant Agreement are for reference only
and shall not affect the meaning or construction of any of the provisions
hereof.
<PAGE>
IN WITNESS WHEREOF, the Company has executed this Warrant
Agreement as of the date first written above.
TRANSMONTAIGNE INC.
By: /s/ Harold R. Logan, Jr.
--------------------------
Harold R. Logan, Jr.
Executive Vice President/Finance
COUNTERSIGNED:
BankBoston, N.A.,
as Warrant Agent
By: /s/ Tyler H. Haynes
-------------------------
Tyler H. Haynes
Administrative Manager
Issue Date: March 25, 1999
-----------------
<PAGE>
ANNEX A
FORM OF WARRANT CERTIFICATE
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"), OR ANY APPLICABLE STATE SECURITIES LAWS AND MAY NOT
BE SOLD OR OTHERWISE TRANSFERRED (WHETHER OR NOT FOR
CONSIDERATION) UNLESS REGISTERED UNDER THE ACT AND ANY
APPLICABLE STATE SECURITIES LAWS UNLESS AN EXEMPTION FROM
REGISTRATION IS THEN AVAILABLE.
THE HOLDER OF THIS SECURITY (AND THE COMMON STOCK INTO WHICH
THIS SECURITY IS CONVERTIBLE) AGREES FOR THE BENEFIT OF THE
COMPANY THAT (A) THIS SECURITY AND ANY SECURITY INTO WHICH
SUCH SECURITY IS EXCHANGEABLE MAY BE OFFERED, RESOLD, PLEDGED
OR OTHERWISE TRANSFERRED ONLY (i) OTHER THAN WITH RESPECT TO
THE COMMON STOCK, WITHIN THE UNITED STATES TO A PERSON WHOM
THE SELLER REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN
A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (ii)
PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF
AVAILABLE), (iii) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OR (iv) TO THE COMPANY, IN
EACH OF CASES (i) THROUGH (iv) IN ACCORDANCE WITH ANY
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES
OR ANY OTHER APPLICABLE JURISDICTION, AND (B) THE HOLDER
WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY
PURCHASER OF THIS SECURITY FROM IT OF THE RESALE RESTRICTIONS
REFERRED TO IN (A) ABOVE.
<PAGE>
No. W- Certificate for Warrants
WARRANTS TO PURCHASE COMMON STOCK OF
TRANSMONTAIGNE INC.
THIS CERTIFIES THAT, , or its
registered assigns, is the registered holder of the number of
Warrants set forth above (the "Warrants"). Each Warrant
entitles the holder thereof (the "Holder"), at its option and
subject to the provisions contained herein and in the Warrant
Agreement referred to below, to purchase from TransMontaigne
Inc., a Delaware corporation ("the Company"), three-fifths of
one share (the "Warrant Shares") of Common Stock, par value
$0.01 per share, of the Company (the "Common Stock") at the
per share exercise price of $14.00 (the "Exercise Price").
This Warrant Certificate shall terminate and become void as
of the close of business on March 24, 2004 (the "Expiration
Date") or upon the exercise hereof as to all the shares of
Common Stock subject hereto. The number of shares purchasable
upon exercise of the Warrants and the Exercise Price per
share shall be subject to adjustment from time to time as set
forth in the Warrant Agreement.
This Warrant Certificate is issued under and in
accordance with a Warrant Agreement dated as of March 25,
1999 (the "Warrant Agreement"), between the Company and
Boston Equiserve, (the "Warrant Agent", which term includes
any successor Warrant Agent under the Warrant Agreement) and
is subject to the terms and provisions contained in the
Warrant Agreement to all of which terms and provisions the
Holder of this Warrant Certificate consents by acceptance
hereof. The Warrant Agreement is hereby incorporated herein
by reference and made a part hereof. Reference is hereby made
to the Warrant Agreement for a full statement of the
respective rights, limitations of rights, duties and
obligations of the Company, the Warrant Agent and the Holders
of the Warrants. Capitalized terms used but not defined
herein shall have the meanings ascribed thereto in the
Warrant Agreement. A copy of the Warrant Agreement may be
obtained for inspection by the Holder hereof upon written
request to the Warrant Agent at Boston Equiserve, 150 Royall
Street, Mail Stop 45-02-62,Canton, MA 02021 (fax:
781-575-5775).
Subject to the terms of the Warrant Agreement, the
Warrants may be exercised in whole or in part (i) by
presentation of this Warrant Certificate with the
Subscription Form attached hereto duly executed and with the
simultaneous payment of the Exercise Price in cash (subject
to adjustment) to the Warrant Agent for the account of the
Company at the office of the Warrant Agent or (ii) by
Cashless Exercise. Payment of the Exercise Price shall be
<PAGE>
made in cash or by certified or official bank check payable
to the order of the Company or by wire transfer of funds to
an account designated by the Company for such purpose.
Payment by Cashless Exercise shall be made by the surrender
of one or more Warrant Certificates (and without payment of
the Exercise Price in cash) in exchange for such number of
shares of Common Stock equal to the quotient obtained by
dividing (1) the value of such Warrant Certificate (or the
specified portion thereof) on the effective date of the
exercise of the Conversion Right, which value shall be
determined by subtracting (x) the aggregate exercise price of
the Converted Warrant Shares immediately prior to the
exercise of the Conversion Right from (y) the aggregate
Market Price of such Converted Warrant Shares on the
Conversion Date by (ii) the Market Price of one Warrant Share
on the Conversion Date.
The Company may require payment of a sum sufficient
to cover any taxes, assessments or other governmental charges
in connection with the transfer or exchange of the Warrant
Certificates, but not for any exchange or original issuance
(not involving a transfer) with respect to temporary Warrant
Certificates, the exercise of the Warrants or the Warrant
Shares.
Upon any partial exercise of the Warrants, there
shall be countersigned and issued to the Holder hereof a new
Warrant Certificate in respect of the remaining Warrant
Shares which shall not have been exercised. This Warrant
Certificate may be exchanged at the office of the Warrant
Agent by presenting this Warrant Certificate properly
endorsed with a request to exchange this Warrant Certificate
for other Warrant Certificates evidencing an equal number of
Warrants. The Company is not required to issue fractional
Warrant Shares upon the exercise of Warrants, but the Company
may pay an amount in cash equal to the Market Price for one
Warrant Share on the Business Day next preceding the date the
Warrant is presented for exercise, multiplied by the fraction
of a Warrant Share that would be issuable on the exercise of
any Warrant.
All shares of Common Stock issuable by the Company
upon the exercise of the Warrants shall, upon such issue, be
duly and validly issued and fully paid and nonassessable.
Prior to the due presentation for registration of
transfer of any Warrant, the Holder in whose name the Warrant
Certificate is registered may be deemed and treated by the
Company and the Warrant Agent as the absolute owner of the
Warrant evidenced by such Warrant Certificate for all
purposes whatsoever and neither the Company nor the Warrant
Agent shall be affected by notice to the contrary.
<PAGE>
The Warrants do not entitle any Holder hereof to
any of the rights of a shareholder of the Company.
This Warrant Certificate shall not be valid or
obligatory for any purpose until it shall have been counter
signed by the Warrant Agent.
TRANSMONTAIGNE INC.,
by:
-------------------------
Name:
Title:
Attest:
- ---------------------------
Secretary
DATED:
Countersigned:
BANKBOSTON, N.A.,as Warrant Agent,
by
-----------------------------
Authorized Signatory
<PAGE>
FORM OF SUBSCRIPTION
(to be signed only upon exercise of Warrants)
To: TransMontaigne Inc.
The undersigned registered holder of the
accompanying Warrant hereby irrevocably exercises such
Warrant or portion thereof for, and purchases thereunder,
_______1 Warrant Shares (as defined in such Warrant) and
herewith [makes payment therefor of $_______] [or] [makes
payment therefor by conversion of _______ Warrant Shares
represented by such Warrant pursuant to Section 1.6 of such
Warrant]. The undersigned requests that the certificates for
such Warrant Shares be issued in the name of, and delivered
to, _______________________, whose address is
_______________________.
Date: _________, ____
______________________________
2
(Signature of Owner)
______________________________
(Street Address)
______________________________
(City) (State) (Zip Code)
Signature Guaranteed by:
______________________________
- --------
1 Insert the number of Warrant Shares as to which this Warrant is
being exercised. In the case of a partial exercise, a new Warrant or
Warrants will be issued and delivered, representing the unexercised portion
of this Warrant, to the holder surrendering the same.
2 Signature must be guaranteed by an "eligible guarantor institution,"
that is, a bank, stockbroker, savings and loan association or credit union
meeting the requirements of the Registrar, which requirements include
membership or participation in the Securities Transfer Agents Medallion
Program ("STAMP") or such other "signature guarantee program" as may be
determined by the Registrar in addition to, or in substitution for, STAMP,
all in accordance with the Securities Exchange ACT of 1934, as amended.
<PAGE>
Securities and/or check to be issued to:
Please insert social security or identifying number:
Name:
Street Address:
City, State and Zip Code:
A new Warrant Certificate evidencing any unexercised Warrants
evidenced by the within Warrant Certificate is to be issued
to:
Please insert social security or identifying number:
Name:
Street Address:
City, State and Zip Code:
<PAGE>
FORM OF ASSIGNMENT
(to be signed only upon transfer of Warrants)
TRANSMONTAIGNE INC.
For value received, the undersigned hereby sells,
assigns and transfers unto ___________________ of
_____________________ the right represented by the within
Warrant to purchase ______ shares of Common Stock of
TransMontaigne Inc. to which the within Warrant relates, and
appoints _____________________ Attorney to transfer such
right on the books of TransMontaigne Inc. with full power of
substitution in the premises.
Date: _________, ____
______________________________
3
(Signature of Owner)
______________________________
(Street Address)
______________________________
(City) (State) (Zip Code)
Signature Guaranteed by:
______________________________
- --------
3 Signature must be guaranteed by an "eligible guarantor institution,"
that is, a bank, stockbroker, savings and loan association or credit union
meeting the requirements of the Registrar, which requirements include
membership or participation in the Securities Transfer Agents Medallion
Program ("STAMP") or such other "signature guarantee program" as may be
determined by the Registrar in addition to, or in substitution for, STAMP,
all in accordance with the Securities Exchange ACT of 1934, as amended.
<PAGE>
ANNEX B
FORM OF SUBSCRIPTION
(To be executed only upon exercise of the Warrant
in whole or in part)
To TransMontaigne Inc.
The undersigned registered holder of the accompanying Warrant
hereby irrevocably exercises such Warrant or portion thereof for, and
purchases thereunder, _______1/ Warrant Shares (as defined in such Warrant)
and herewith [makes payment therefor of $_______] [or] [makes payment
therefor by conversion of _______ Warrant Shares represented by such
Warrant pursuant to Section 2.6 of such Warrant]. The undersigned requests
that the certificates for such Warrant Shares be issued in the name of, and
delivered to, ________________________, whose address is ____________________.
Dated:
Name of Warrant Holder: ______________________________________________
(Name must conform in all respects to name of
holder as specified on the face of the Warrant)
--------------------------------------
(Street Address)
--------------------------------------
(City) (State) (Zip Code)
1/ Insert the number of Warrant Shares as to which this Warrant is being
exercised. In the case of a partial exercise, a new Warrant or Warrants
will be issued and delivered, representing the unexercised portion of this
Warrant, to the holder surrendering the same.
<PAGE>
ANNEX C
FORM OF ASSIGNMENT
(To be signed only on transfer of Warrant)
For value received, the undersigned hereby sells, assigns and
transfers unto ____________________________ [Name] of _____________
[Address] the right represented by the within Warrant to purchase ________
shares of Common Stock of TransMontaigne Inc. to which the within Warrant
relates, and appoints ____________________ Attorney to transfer such right
on the books of TransMontaigne Inc. with full power of substitution in the
premises.
Dated:________
---------------------------------------
(Name must conform to name of holder as
specified on the face of the Warrant)
---------------------------------------
(Street Address)
---------------------------------------
(City) (State) (Zip Code)
Signed in the presence of:
- ----------------------------
<PAGE>
Exhibit 99.5
STOCKHOLDERS' AGREEMENT
This STOCKHOLDERS' AGREEMENT (this "Agreement") is dated as of
March 25, 1999, among TransMontaigne Inc., a Delaware corporation (the
"Company"), Cortlandt S. Dietler ("Dietler"), Richard E. Gathright
("Gathright"), Harold R. Logan, Jr. ("Logan"), William A. Sikora ("Sikora"
and, together with Dietler, Gathright and Logan, the "Key Senior
Executives") and the Purchasers listed on the signature pages of this
Stockholders' Agreement (such purchasers are collectively referred to
herein as the "Investor Group" and, individually, as an "Investor.")
W I T N E S S E T H:
WHEREAS, pursuant to the terms of the Preferred Stock and Warrant
Purchase Agreements between the Company and each of the Investors (the
"Stock and Warrant Purchase Agreements"), the Investors have purchased
shares of the Company's Series A Convertible Preferred Stock, par value
$.01 per share (the "Series A Preferred Stock") and Warrants to purchase
shares of the Company's Common Stock (the "Warrants");
WHEREAS, the Key Senior Executives own approximately 11.5% of the
outstanding shares of the Company's Common Stock (such shares, along with
any shares of Common Stock, par value $.01 per share (the "Common Stock"),
that the Key Senior Executives may subsequently acquire, the "Shares");
WHEREAS, it is a condition precedent to the Company's and the
Investors' respective obligations to consummate the transactions
contemplated by the Stock and Warrant Purchase Agreements that the parties
hereto shall have entered into this Agreement; and
<PAGE>
WHEREAS, each of Dietler, Gathright, Logan, Sikora, the Company
and the Investors desires to enter into this Agreement to regulate certain
aspects of their relationship;
NOW, THEREFORE, in consideration of the agreements and mutual
covenants contained herein, the parties hereto hereby agree as follows:
1. Rights of Inclusion (Tag-Along Rights).
(a) In the event any of the Key Senior Executives proposes to
Transfer any Shares (the "Transferor Shares") in excess of the amounts and
during the time periods specified in Section 2 hereof (other than pursuant
to a transaction open to all holders of the Common Stock) to any Person
(the "Buyer"), as a condition to such Transfer, such Key Senior Executive
shall cause the Buyer to offer (the "Inclusion Offer") to purchase from
each Investor, at each such Investor's option, up to that number of
Investor Shares determined in accordance with Section 1(b) on the same
terms and conditions as are applicable to the Transferor Shares except that
each Investor shall not be required to provide any representation, warranty
or other undertaking other than with respect to its ownership of, and
authority to Transfer, the Investor Shares owned by it free of any liens or
encumbrances. Such Key Senior Executive shall provide prompt written notice
to each Investor (the "Inclusion Notice") setting forth all the terms and
conditions of the Inclusion Offer, and each Investor may accept the
Inclusion Offer in whole or in part by providing a written notice of
acceptance with respect to Investor Shares owned by it to such Key Senior
Executive within twenty (20) days of delivery of the Inclusion Notice to it
(the "Acceptance Notice").
(b) Each Investor shall have the right to sell, pursuant to the
Inclusion Offer, Investor Shares representing the same percentage of all
Investor Shares owned by it as the Transferor Shares are of all Shares
owned by such Key Senior Executive (such percentage shall be calculated on
the basis that all shares of Series A Preferred Stock owned by each
Investor have been converted into shares of Common Stock at the current
conversion price per share under Section 5 of the Certificate of
Designations); provided, however, that if no Investor elects to exercise
such right, such Key Senior Executive shall nonetheless be entitled to
Transfer all of the Transferor Shares described in the Inclusion Notice. In
the event the number of Investor Shares for which the Investor Group elects
to exercise such right, along with the Transferor Shares and any other
shares of the Company to be sold by other stockholders pursuant to any
similar rights granted to such other stockholders, exceed the number of
shares which the Buyer is willing to purchase, the number of shares to be
Transferred to the Buyer by each transferor shall be reduced so that each
transferor is entitled to Transfer the same percentage of its shares
(determined on a Common Stock equivalent basis) included in its Acceptance
Notice as each other transferor. If an Investor elects to exercise such
right, such Investor may, in its sole discretion, determine the composition
of the Investor Shares (i.e., the number of the shares of Series A
Preferred Stock and Common Stock to be included in the Investor Shares) to
be Transferred by it to the Buyer pursuant to the Inclusion Offer. In the
event that any Investor chooses to include any shares of Series A Preferred
Stock in the Investor Shares to be Transferred by it to the Buyer pursuant
to the Inclusion Offer, any such Investor shall, prior to or simultaneously
with such Transfer, convert such shares of Series A Preferred Stock into
shares of Common Stock so that each Investor Transfers only Common Stock to
the Buyer.
(c) Each Key Senior Executive shall have ninety (90) days,
commencing on the date of the Inclusion Notice, in which to Transfer, on
behalf of himself and the Investor Group up to the number of shares covered
by the Inclusion Offer (including the Transferor Shares) to the Buyer. The
terms of such Transfer, including, without limitation, price and form of
consideration, shall be as set forth in the Inclusion Notice. If at the end
of such ninety (90) day period such Key Senior Executive has not completed
the Transfer of the Transferor Shares and the Investor Shares (if any)
proposed to be Transferred, such Key Senior Executive may not proceed with
such Transfer or any other Transfer without first giving a new Inclusion
Notice pursuant to the provisions of this Section 1.
<PAGE>
(d) If a Key Senior Executive is able to complete the Transfer of
the Transferor Shares and the Investor Shares (if any) proposed to be
Transferred within such ninety (90) day period, at the closing thereof,
each Investor shall deliver to the Buyer a certificate or certificates
representing the Investor Shares owned by it to be Transferred pursuant to
the Inclusion Offer, free and clear of all liens and encumbrances, and the
Buyer shall pay to each such Investor the purchase price for the Investor
Shares so Transferred pursuant to this Section 1 and shall furnish such
other evidence of the completion of such Transfer and the terms thereof as
may be reasonably requested by the Investor Group.
(e) Notwithstanding any provision hereof to the contrary if any
Key Senior Executive and the Investors agree that the strict enforcement of
the terms of Section 1 hereof is unduly burdensome then the Investors and
such Key Senior Executive shall agree on terms for that particular
transaction which carry out the intent of this agreement.
2. Limitation on Transfers.
(a) So long as at least 50% (on an individual or aggregate basis)
of the Shares or Conversion Shares (as defined in the Preferred Stock and
Warrant Purchase Agreements) beneficially owned by the Investors or their
Affiliates as of the date hereof remain beneficially owned by such
Investors or such Affiliates during the five year period beginning on the
date hereof and ending on the fifth anniversary of such date, each Key
Senior Executive agrees not to Transfer, in any transaction or series of
transactions during such period, that number of Shares that represents
thirty percent (30%) or more of the aggregate number of Shares (calculated
by treating all options or warrants held by such Key Senior Executive to
purchase shares of Common Stock as exercised) held by such Key Senior
Executive as of December 31, 1998, as adjusted to reflect any stock split,
stock dividend, recapitalization or similar event since December 31, 1998
(other than in compliance with Section 1 hereof or in a transaction open to
all holders of Common Stock).
(b) So long as at least 50% (on an individual or aggregate basis)
of the Shares or Conversion Shares (as defined in the Preferred Stock and
Warrant Purchase Agreements) beneficially owned by the Investors or their
Affiliates as of the date hereof remain beneficially owned by such
Investors or such Affiliates during the seven year period beginning on the
date hereof and ending on the seventh anniversary of such date, each Key
Senior Executive agrees not to Transfer, in any transaction or series of
transactions during such period, that number of Shares that represents
fifty percent (50%) or more of the aggregate number of Shares (calculated
by treating all options or warrants held by such Key Senior Executive to
purchase shares of Common Stock as exercised) held by such Key Senior
Executive as of December 31, 1998, as adjusted to reflect any stock split,
stock dividend, recapitalization or similar event since December 31, 1998
(other than in compliance with Section 1 hereof or in a transaction open to
all holders of Common Stock).
<PAGE>
(c) Any attempt to Transfer or any purported Transfer of the
Shares or Conversion Shares (as defined in the Preferred Stock and Warrant
Purchase Agreements) not in accordance with the terms of this Agreement
shall be null and void and the Company, as the issuer of such securities,
shall not permit any transfer agent of such securities to give any effect
to any such attempted Transfer in its stock records of which, after due
inquiry, it has knowledge.
(d) On June 30, 1999 and at the end of each subsequent fiscal
quarter of the Company, each Key Senior Executive will deliver to the
Company's secretary all reports or filings made by such Key Senior
Executive with the Securities and Exchange Commission (or other securities
regulatory authority or body) pursuant to Rule 144 or Section 16 of the
Securities Exchange Act of 1934, as amended (or similar rules or sections).
(e) Notwithstanding any other provision hereof any Transfer of
Shares by a Key Senior Executive pursuant any legal settlement, including,
without limitation, to a divorce decree, will not be considered a Transfer
for purposes of this Agreement.
3. Definitions.
As used herein, the following terms shall have the respective
meanings set forth below:
"Acceptance Notice" shall have the meaning set forth in Section
1(a) hereof.
"Affiliate" shall have the meaning given it in Section 3 of the
Stock and Warrant Purchase Agreements.
"Buyer" shall have the meaning set forth in Section 1(a) hereof.
"Certificate of Designations" shall have the meaning given it in
Section 1(a) of the Stock and Warrant Purchase Agreements.
"Common Stock" means the Company's Common Stock, par value $.01
per share; and shall also include any capital stock or other securities
into which Common Stock is changed and any capital stock or other
securities resulting from or comprising a reclassification, combination or
subdivision of, or a stock dividend on, any Common Stock.
"Company" shall have the meaning set forth in the first paragraph
hereof.
"Dietler" shall have the meaning set forth in the first paragraph
hereof.
"Gathright" shall have the meaning set forth in the first
paragraph hereof.
"Inclusion Notice" shall have the meaning set forth in Section
1(a) hereof.
<PAGE>
"Inclusion Offer" shall have the meaning set forth in Section
1(a) hereof.
"Investor" shall have the meaning set forth in the first
paragraph hereof.
"Investor Group" shall have the meaning set forth in the first
paragraph hereof.
"Investor Shares" means all Series A Preferred Stock, Warrants
and Common Stock obtained as a result of conversion of Series A Preferred
Stock or exercise of Warrants owned by the Investor Group.
"Logan" shall have the meaning set forth in the first paragraph
hereof.
"Person" means an individual, corporation, partnership, firm,
association, joint venture, trust, unincorporated organization,
governmental body, agency, political subdivision or other entity.
"Series A Preferred Stock" shall have the meaning set forth in
the first WHEREAS clause hereof.
"Shares" shall have the meaning set forth in the second WHEREAS
clause hereof.
"Sikora" shall have the meaning set forth in the first paragraph
hereof.
"Stock and Warrant Purchase Agreements" shall have the meaning
set forth in the first WHEREAS clause hereof.
"Transfer" means, with respect to any security, any direct or
indirect sale, transfer, assignment, hypothecation, pledge or any other
disposition of such security or any interest therein.
"Transferor Shares" shall have the meaning set forth in Section
1(a) hereof.
"Warrants" shall have the meaning set forth in the first WHEREAS
clause hereof.
4. Miscellaneous.
(a) In the event of a breach by any party to this Agreement of
its obligations under this Agreement, any party injured by such breach, in
addition to being entitled to exercise all rights granted by law, including
recovery of damages, will be entitled to specific performance of its rights
under this Agreement. The parties agree that the provisions of this
Agreement shall be specifically enforceable, it being agreed by the parties
that the remedy at law, including monetary damages, for breach of any such
provision will be inadequate compensation for any
<PAGE>
loss and that any defense in any action for specific performance that a
remedy at law would be adequate is waived.
(b) Except as otherwise provided herein, no modification,
amendment or waiver of any provision of this Agreement will be effective
against any party hereto unless such modification, amendment or waiver is
approved in writing by the party against whom such modification, amendment
or waiver is to be effective, which in the case of the Investors shall
require the approval of Investors holding two-thirds of the Investor
Shares. The failure of any party to enforce any of the provisions of this
Agreement will in no way be construed as a waiver of such provisions and
will not affect the right of such party thereafter to enforce each and
every provision of this Agreement in accordance with its terms.
(c) All covenants and agreements in this Agreement by or on
behalf of any of the parties hereto will bind and inure to the benefit of
the respective successors and assigns of the parties hereto whether so
expressed or not; provided, that no party to this Agreement may assign any
of its rights, duties or obligations under this Agreement, except with the
other parties' written consent.
(d) All notices, requests and other communications hereunder must
be in writing and will be deemed to have been duly given only if delivered
personally or by facsimile transmission or sent by nationally recognized
overnight courier service to the parties at the following addresses or
facsimile numbers:
(i) If to an Investor, to:
the addresses indicated on Schedule 1 to the Stock and
Warrant Purchase Agreements.
(ii) If to the Company, to:
TransMontaigne Inc.
370 Seventeenth Street
Suite 2750
Denver, CO 80202
Attn: Erik B. Carlson
<PAGE>
(iii) If to Dietler, to:
TransMontaigne Inc.
370 Seventeenth Street
Suite 2750
Denver, CO 80202
Attn: Cortlandt S. Dietler
(iv) If to Gathright, to:
TransMontaigne Inc.
370 Seventeenth Street
Suite 2750
Denver, CO 80202
Attn: Richard E. Gathright
(v) If to Logan, to:
TransMontaigne Inc.
370 Seventeenth Street
Suite 2750
Denver, CO 80202
Attn: Harold R. Logan, Jr.
(vi) If to Sikora, to:
TransMontaigne Inc.
370 Seventeenth Street
Suite 2750
Denver, CO 80202
Attn: William A. Sikora
All such notices, requests and other communications will (x) if delivered
personally to the address as provided in this Section 4(d), be deemed given
upon delivery, (y) if delivered by facsimile transmission to the facsimile
number as provided in this Section 4(d), be deemed given upon receipt and
(z) if delivered by nationally recognized overnight courier service in the
manner described above to the address as provided in this Section 4(d), be
deemed given on the business day following the day it was sent (in each
case regardless of whether such notice, request or other communication is
received by any other Person to whom a copy of such notice is to be
delivered pursuant to this Section 4(d)). Any party from time to time may
change its address, facsimile number or other information for the purpose
of notices to that party by giving notice specifying such change to the
other parties hereto.
<PAGE>
(e) The headings used in this Agreement have been inserted for
convenience of reference only and do not define or limit the provisions
hereof.
(f) If any provision of this Agreement is held to be illegal,
invalid or unenforceable, and if the rights or obligations of any party
hereto under this Agreement will not be materially and adversely affected
then, (i) such provision will be fully severable, (ii) this Agreement will
be construed and enforced as if such illegal, invalid or unenforceable
provision had never comprised a part hereof, (iii) the remaining provisions
of this Agreement will remain in full force and effect and will not be
affected by the illegal, invalid or unenforceable provision or by its
severance herefrom and (iv) in lieu of such illegal, invalid or
unenforceable provision, there will be added automatically as a part of
this Agreement a legal, valid and enforceable provision as similar in terms
to such illegal, invalid or unenforceable provision as may be possible.
(g) This Agreement shall be governed by and construed in
accordance with the laws of the State of New York applicable to a contract
executed and performed in such State without giving effect to the conflicts
of laws principles thereof.
(h) This Agreement may be executed in any number of counterparts
(which counterparts may include any counterparts delivered prior to March
31, 1999), each of which will be deemed an original, but all of which
together will constitute one and the same instrument.
(i) The terms of this Agreement shall cease and be of no further
effect with respect to a Key Senior Executive upon the death or
resignation, removal or termination of employment with the Company of such
Key Senior Executive, but shall continue with respect to all other Key
Senior Executives.
<PAGE>
IN WITNESS WHEREOF, the parties have duly executed this Agreement
as of the date first written above.
TRANSMONTAIGNE INC.
By: /s/ Cortlandt S. Dietler
------------------------
Name:
Title:
KEY SENIOR EXECUTIVES
/s/ Cortlandt S. Dietler
-----------------------------
Cortlandt S. Dietler
/s/ Richard E. Gathright
-----------------------------
Richard E. Gathright
/s/ Harold R. Logan, Jr.
-----------------------------
Harold R. Logan, Jr.
/s/ William A. Sikora
-------------------------------------
William A. Sikora
INVESTORS
FLEMING US DISCOVERY FUND III, L.P.
By: FLEMING US DISCOVERY PARTNERS, L.P.,
its general partner
By: FLEMING US DISCOVERY, LLC,
its general partner
By: /s/ Robert L. Burr
----------------------
Robert L. Burr, member
FLEMING US DISCOVERY OFFSHORE FUND
III, L.P.
By: FLEMING US DISCOVERY
PARTNERS, L.P.,
its general partner
By: FLEMING US DISCOVERY, LLC.
its general partner
By: /s/ Robert L. Burr
----------------------
Robert L. Burr, member
LAUGHLIN TRUSTEES ET AL FBO RICHARD R.
OHRSTROM, JR. DTD 12/22/97
By: /s/ Andrew W. Regan
---------------------------
Name:
Trustee:
LAUGHLIN TRUSTEES ET AL FBO KENNETH
M. OHRSTROM DTD 12/22/97
By: /s/ Andrew W. Regan
---------------------------
Name:
Trustee:
LAUGHLIN TRUSTEES ET AL FBO GEORGE L.
OHRSTROM II DTD 12/22/97
By: /s/ Andrew W. Regan
---------------------------
Name:
Trustee:
LAUGHLIN TRUSTEES ET AL FBO BARNABY
A. OHRSTROM DTD 12/22/97
By: /s/ Andrew W. Regan
---------------------------
Name:
Trustee:
CODAN TRUSTEES ET AL FBO
CHRISTROPHER F. OHRSTROM DTD 12/22/97
By: /s/ Andrew W. Regan
---------------------------
Name:
Trustee:
CODAN TRUSTEES ET AL FBO MARK J.
OHRSTROM DTD 12/22/97
By: /s/ Andrew W. Regan
---------------------------
Name:
Trustee:
CODAN TRUSTEES ET AL FBO ESMOND V.
HARMSWORTH DTD 12/22/97
By: /s/ James B. Richardson
---------------------------
Name: James B. Richardson
Trustee: Trustee
YORKTOWN ENERGY PARTNERS III, L.P.
By: YORKTOWN III COMPANY, L.L.C.,
its general partner
By: /s/ Peter A. Leidel, member
---------------------------
Peter A. Leidel, member
YORKTOWN PARTNERS, L.L.C.,
as agent
By: /s/ Peter A. Leidel
--------------------------------
Peter A. Leidel, member
TICONDEROGA PARTNERS IV, L.P.,
By: TICONDEROGA ASSOCIATES IV,
L.L.C.,
its general partner
By: /s/ Peter A. Leidel
---------------------------
Peter A. Leidel, member
CFE, INC.
By: /s/ Glenn P. Bartley
--------------------------------
Name:
Title:
VESTAR CAPITAL PARTNERS III, L.P.
By: Vestar Associates III, L.P.
its general partner
By: Vestar Associates
Corporation III
its general partner
By: /s/ James C. Kelley
---------------------------
Name: James C. Kelley
Title: Managing Director
<PAGE>
FIRST RESERVE FUND VII, LIMITED
PARTNERSHIP
By FIRST RESERVE GP VII, L.P.
its general partner
By: FIRST RESERVE CORPORATION
its general partner
By: /s/ William McCauley
----------------------
Name:
Title:
FIRST RESERVE FUND VIII. L.P.
By: FIRST RESERVE GP VIII, L.P.
its general partner
By: FIRST RESERVE CORPORATION
its general partner
By: /s/ William McCauley
----------------------
Name:
Title:
VENCAP HOLDINGS (1987) PTE LTD
By: /s/ Brett Fisher
----------------------
Name:
Title:
<PAGE>
Exhibit 99.6
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT dated as of March 25, 1999, between
TransMontaigne Inc., a Delaware corporation (the "Company"), and the
entities listed on the signature pages of this Registration Rights
Agreement (the "Fund Investors").
WHEREAS, pursuant to the terms of the Preferred Stock and Warrant
Purchase Agreements between the Company and each of the Fund Investors (the
"Stock and Warrant Purchase Agreements"), the Fund Investors have or will
purchase an aggregate of (x) up to 200,000 shares of the Company's Series A
Preferred Stock and (y) up to 13,334,000 Warrants to purchase up to
8,000,400 shares of the Company's Common Stock, par value $.01 per share
(the "Common Stock"); and
WHEREAS, it is a condition precedent to the Fund Investors'
obligations to consummate the transactions contemplated by the Stock and
Warrant Purchase Agreements that the parties hereto shall have entered into
this Agreement to, among other things, grant the Fund Investors (and any
Permitted Affiliate of the Fund Investors (as defined below) to whom the
Fund Investors transfer any portion of the Fund Investor Shares) and any
other transferee of Fund Investor Shares registration rights in respect of
the Fund Investor Shares substantially comparable to the rights set forth
in (x) the Registration Rights Agreement, dated as of April 17, 1996, and
amended as of October 30, 1998 and March 25, 1999 (the "Institutional
Investor Registration Rights Agreement"), by and among the Company and the
Institutional Investors identified therein (the "Institutional Investors"),
and (y) the Registration Rights Agreement, dated as of October 30, 1998,
and as amended as of March 25, 1999 (the "LDC Registration Rights
Agreement"), between the Company and Louis Dreyfus Corporation ("LDC").
NOW, THEREFORE, in consideration of the aforesaid and the mutual
promises hereinafter made, the parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.1. Definitions. The following terms, as used herein,
shall have the following meanings:
"Advice" has the meaning set forth in Section 2.3.
"Affiliate" means, with respect to any specified person, any
other person directly or indirectly controlling, controlled by or under
direct or indirect common control with such specified person. For the
purposes of this definition, "control" when used with respect to any
specified person means the power to direct the management and policies of
such person, directly or indirectly, whether through the ownership of
voting securities, by contract or otherwise; and the terms "controlling"
and "controlled" have meanings correlative to the foregoing.
"Board" means the Board of Directors of the Company.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday
and Friday which is not a day on which banking institutions in New York,
New York, Boston, Massachusetts or Fayetteville, Arkansas are authorized or
obligated by law or executive order to close.
"Commission" means the Securities and Exchange Commission or any
other Federal agency from time to time administering the 1933 Act or the
Exchange Act.
"Common Stock" has the meaning set forth in the recitals to this
Agreement.
"Common Stock Equivalent" means any securities of any person
convertible into or exchangeable or exercisable for Common Stock (whether
at the option of such person or of the holder of such securities),
including the Series A Preferred Stock and the Warrants.
"Company" has the meaning set forth in the preamble to this
Agreement.
"Demand Registration" has the meaning set forth in Section 2.2.1.
<PAGE>
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Fund Investors" has the meaning set forth in the preamble to
this Agreement, and shall include the holders of the Fund Investor Shares.
"Fund Investor Demand Registration" has the meaning set forth in
Section 2.2.1.
"Fund Investor Holders" has the meaning set forth in Section
2.1.1.
"Fund Investor Holders Notice" has the meaning set forth in
Section 2.2.1.
"Fund Investor Notice" has the meanings et forth in Section
2.2.1.
"Fund Investor Shares" means the Series A Preferred Stock, the
Warrants, and any shares of Common Stock issued or issuable upon conversion
of the Series A Preferred Stock or upon exercise of the Warrants purchased
by the Fund Investors pursuant to the Stock and Warrant Purchase
Agreements.
"Institutional Investor Demand Registration" has the meaning set
forth in Section 2.2.1.
"Institutional Investor Notice" has the meaning set forth in
Section 2.2.1.
"Institutional Investor Registration Rights Agreement" has the
meaning set forth in the recitals to this Agreement.
"Institutional Investors" has the meaning set forth in the
recitals to this Agreement.
"LDC" has the meaning set forth in the recitals to this
Agreement.
"LDC Demand Registration" has the meaning set forth in Section
2.2.1.
"LDC Holders" has the meaning set forth in the LDC Registration
Rights Agreement.
"LDC Notice" has the meaning set forth in Section 2.2.1.
"LDC Registration Rights Agreement" has the meaning set forth in
the recitals to this Agreement.
<PAGE>
"1933 Act" means the Securities Act of 1933, as amended.
"Permitted Affiliate of the Fund Investors" means any Affiliate,
officer or employee of an Affiliate or investment fund managed by an
Affiliate of any Fund Investor to which any Fund Investor may transfer
record and/or beneficial ownership of the Fund Investor Shares.
"person" means any individual, corporation, limited liability
company, firm, partnership, joint venture, association, joint-stock
company, trust, unincorporated organization or any other entity or
organization, including a government, a governmental body, a political
subdivision or an agency or instrumentality thereof.
"Piggyback Registration" has the meaning set forth in Section
2.1.1.
"Registration" has the meaning set forth in Section 2.3.
"Registrable Securities" means (x) any shares of Common Stock
issued or issuable upon conversion of the Series A Preferred Stock or
exercise of the Warrants purchased by the Fund Investors pursuant to the
Stock and Warrant Purchase Agreements and owned by a Fund Investor or a
Permitted Affiliate of the Fund Investors or any other transferee of the
foregoing and (y) any shares of Common Stock which may be issued or
distributed in respect of such shares of Common Stock by way of concession,
stock dividend or stock split or other distribution, recapitalization or
reclassification, but with respect to such shares of Common Stock, only so
long as such shares are "Restricted Securities". A share of Common Stock
shall be deemed to be a "Restricted Security" until such time as such share
(i) has been effectively registered under the 1933 Act pursuant to a
registration statement with respect to the sale of such share and disposed
of pursuant to such registration statement, (ii) has been distributed to
the public pursuant to Rule 144 (or any similar provision then in force)
under the 1933 Act, (iii) shall have been otherwise transferred, new
certificates for it not bearing a legend restricting further transfer shall
have been delivered by the Company and subsequent disposition of it shall
not require registration or qualification of it under the 1933 Act or any
state securities or blue sky law then in force or (iv) shall have ceased to
be outstanding.
"Request Notice" has the meaning set forth in Section 2.2.1.
"Shelf Registration" has the meaning set forth in Section 2.2.1.
"Series A Preferred Stock" means the Company's Series A
Convertible Preferred Stock, par value $.01 per share, which Series A
Preferred Stock is convertible into shares of Common Stock.
<PAGE>
"Stock and Warrant Purchase Agreement" has the meaning set forth
in the recitals to this Agreement.
"Stop Order" has the meaning set forth in Section 2.2.3.
"Warrants" shall mean Warrants to purchase shares of Common Stock
as more fully set forth in the Stock and Warrant Purchase Agreements.
ARTICLE II
Registration and Related Rights
SECTION 2.1. Company Registration.
2.1.1. Right to Piggyback on Company Registration of Common
Stock. Subject to Section 2.1.3, if the Company proposes, on its own
initiative, to register any Common Stock under the 1933 Act in connection
with the offering of such Common Stock on any form other than Form S-4 or
Form S-8 or any form substituting therefor (except for a registration in
connection with an exchange offer of securities solely to existing
securityholders of the Company) and such proposal would result in the
filing of a registration statement with the Commission in connection
therewith at any time on or after December 31, 1999, the Company shall each
such time promptly give each Fund Investor, each Permitted Affiliate of the
Fund Investors and any other transferee of the foregoing then owning
Registrable Securities (collectively, the "Fund Investor Holders") prior
written notice of such determination no later than 45 days prior to the
proposed filing date of the registration statement to be prepared in
connection with such proposed registration. Any Fund Investor Holder
wishing to register all or any portion of such Fund Investor Holder's
Registrable Securities pursuant to such proposed registration (a "Piggyback
Registration") must give written notice to the Company of its intent to
participate in such proposed registration no less than 15 days after the
receipt of such notice. Subject to the pro rata allocations set forth in
Section 2.1.3, upon receipt of such written request of any such Fund
Investor Holder, the Company will use its best efforts to effect the
registration under the 1933 Act of all Registrable Securities which the
Company has been so requested to register by the Fund Investor Holders.
Notwithstanding the fact that a Piggyback Registration requested pursuant
to this Section 2.1 involves an underwritten public offering, any Fund
Investor Holder holding Registrable Securities that has requested to be
included in such registration may elect, in writing at least three Business
Days prior to the effective date of the registration statement filed in
connection with such registration, not to register such Registrable
Securities in connection with such registration.
<PAGE>
2.1.2. Selection of Underwriters. If the Company in its sole
discretion decides a Piggyback Registration shall be underwritten, the
Company shall have sole discretion in the selection of any underwriter or
underwriters to manage such Piggyback Registration.
2.1.3. Priority on Piggyback Registrations. If the managing
underwriter or underwriters of a Piggyback Registration (or in the case of
a Piggyback Registration not being underwritten, holders of a majority of
the shares of Common Stock proposed to be registered by (x) the Fund
Investor Holders, (y) the LDC Holders pursuant to the LDC Registration
Rights Agreement and (z) the Institutional Investors pursuant to the
Institutional Investor Registration Rights Agreement) advise the Company in
writing that in its or their opinion the number of shares of Common Stock
proposed to be sold in such Piggyback Registration (including any shares
proposed to be sold by (x) LDC Holders pursuant to the LDC Registration
Rights Agreement and (y) Institutional Investors pursuant to the
Institutional Investor Registration Rights Agreement) exceeds the number
which can be sold, or would adversely affect the price at which the Common
Stock could be sold in such offering, the Company will include in such
registration only that number of shares of Common Stock which, in the
opinion of such underwriter or underwriters (or holders of a majority of
the shares of Common Stock proposed to be registered by the Fund Investor
Holders, the LDC Holders and the Institutional Investors, as the case may
be), can be sold in such offering without so affecting such price. The
shares of Common Stock to be included in such Piggyback Registration shall
be apportioned (i) first, to any shares of Common Stock that the Company
proposes to sell, (ii) second, pro rata among any shares of Common Stock
proposed to be sold by (x) any Fund Investor Holder, (y) any LDC Holder
pursuant to the LDC Registration Rights Agreement or (z) any Institutional
Investor pursuant to the Institutional Investor Registration Rights
Agreement and (iii) third, pro rata among any other shares of Common Stock
proposed to be included in such Piggyback Registration, in each case
according to the total number of shares of Common Stock requested for
inclusion by the Fund Investor Holders, the LDC Holders and the
Institutional Investors, or in such other proportions as shall mutually be
agreed to among the Fund Investor Holders, the LDC Holders and the
Institutional Investors.
SECTION 2.2. Demand Registration Rights.
2.2.1. Right to Demand. Subject to the following sentence, if, at
any time on or after December 31, 1999, any one or more of the Fund
Investor Holders holding Registrable Securities representing ten percent
(10%) or more in the aggregate of the then outstanding Common Stock
(assuming conversion or exercise of all Common Stock Equivalents held by
the Fund Investor Holders into Registrable Securities at the then
conversion price or exercise price) submits a written request (a "Request
Notice") to the Company for registration with the Commission under and in
accordance with the
<PAGE>
provisions of the 1933 Act of all or part of the Registrable Securities
then owned by such Fund Investor Holder or Fund Investor Holders (a "Fund
Investor Demand Registration"), the Company shall thereupon, as
expeditiously as possible, use its best efforts to file a registration
statement with the Commission and have the registration statement declared
effective by the Commission; provided, however, that the number of
Registrable Securities as to which such request is made shall represent not
less than five percent (5%) of the then outstanding Common Stock and Common
Stock Equivalents; provided further, however, that for purposes of a Fund
Investor Demand Registration, the term "Registrable Securities" shall
include Registrable Securities (as defined therein) under the Institutional
Investors Registration Rights Agreement. Notwithstanding the foregoing, the
Fund Investor Holders shall have the right, even though they hold
Registrable Securities representing less than ten percent (10%) in the
aggregate of the then outstanding Common Stock, to initiate a Fund Investor
Demand Registration by submitting a Request Notice to the Company at any
time on or after December 31, 1999 if all of the following conditions are
met: (i) the Fund Investor Holders have not previously submitted a Request
Notice to the Company that resulted in an effective Fund Investor Demand
Registration under the terms of this Agreement, (ii) the Registrable
Securities held by the Fund Investor Holders represent less than ten
percent (10%) in the aggregate of the then outstanding Common Stock as a
result of additional issuances of Common Stock by the Company after the
date of this Agreement, (iii) the Fund Investor Holders are not then
eligible to sell the Registrable Securities held by them pursuant to the
provisions of paragraph (k) of Rule 144 under the 1933 Act (or any
successor provision) and (iv) such Request Notice relates to the proposed
sale by the Fund Investor Holders of either (x) Registrable Securities
representing not less than five percent (5%) of the then outstanding Common
Stock and Common Stock Equivalents or (y) all of the Registrable Securities
then held by the Fund Investor Holders. The Fund Investor Holders
acknowledge that, within 10 days after receipt of such Request Notice, the
Company will serve written notice (x) (the "LDC Notice") of such
registration request to all LDC Holders who hold shares of Common Stock
which carry registration rights pursuant to the LDC Registration Rights
Agreement, (y) (the "Institutional Investor Notice") of such registration
request to all Institutional Investors who hold shares of Common Stock
which carry registration rights pursuant to the Institutional Investor
Registration Rights Agreement and (z) of such registration request to all
Fund Investor Holders (the "Fund Investor Holders Notice") who hold
Registrable Securities, and, subject to the pro rata allocations set forth
in Section 2.2.4, the Company will include in such Fund Investor Demand
Registration all such shares of Common Stock held by the LDC Holders,
Institutional Investors and Fund Investor Holders, as the case may be, with
respect to which the Company has received a written request for inclusion
therein within 20 days after the giving of the LDC Notice, the
Institutional Investor Notice and the Fund Investor Holders Notice, as the
case may be.
<PAGE>
The LDC Holders and the Institutional Investors have rights to
demand registrations under the LDC Registration Rights Agreement and the
Institutional Investor Registration Rights Agreement, respectively,
substantially comparable to those of the Fund Investor Holders under this
Agreement. The Company agrees that, at any time on or after December 31,
1999, it shall, within 10 days after receipt of a demand registration
request notice from (x) any one or more of the LDC Holders pursuant to the
LDC Registration Rights Agreement (an "LDC Demand Registration") or (y) any
one or more of the Institutional Investors pursuant to the Institutional
Investor Registration Rights Agreement (an "Institutional Investor Demand
Registration", with the terms "LDC Demand Registration", "Institutional
Investor Demand Registration" and "Fund Investor Demand Registration" being
collectively referred to herein as a "Demand Registration"), serve written
notice (the "Fund Investor Notice") of such registration request to all
Fund Investor Holders holding Registrable Securities and, subject to the
pro rata allocations set forth in Section 2.2.4, the Company shall include
in such LDC Demand Registration or such Institutional Investor Demand
Registration, as the case may be, all Registrable Securities held by Fund
Investor Holders with respect to which the Company has received a written
request for inclusion therein within 20 days after the giving of the Fund
Investor Notice. The Company represents that the LDC Holders and the
Institutional Investors have agreed to the Fund Investor Holders' right to
participate in LDC Demand Registrations and Institutional Investor Demand
Registrations, respectively, on the terms and conditions set forth in this
Section 2.2.
All Fund Investor Holders requesting registration of their
Registrable Securities pursuant to this Section 2.2.1 shall specify the
aggregate number of Registrable Securities proposed to be registered and
the intended methods of disposition thereof. The Fund Investor Holders
shall collectively be entitled to request or participate in an LDC Holder
or Institutional Investor request for four Demand Registrations (the last
of which shall be a shelf registration pursuant to Rule 415 under the 1933
Act to be effective for not less than 180 days (the "Shelf Registration"))
pursuant to which a registration statement covering Registrable Securities
shall be filed with and declared effective by the Commission, the expenses
of which shall be borne by the Company in accordance with Section 2.4, and
no more than one Fund Investor Demand Registration may be requested by any
Fund Investor Holder in any 12-month period; provided, however, that if,
following the effective date of any registration statement filed pursuant
to a Demand Registration, any Fund Investor Holder whose Registrable
Securities are to be included in such Demand Registration pursuant to this
Section 2.2.1 elects, by giving written notice to the Company not later
than 90 days after such effective date, not to dispose of its Registrable
Securities because of a material adverse change in the business, condition
(financial or otherwise), assets or prospects of the Company and its
subsidiaries, taken as a whole, or because of a material adverse event with
respect to the Company and its subsidiaries, taken as a whole, not
disclosed in the final prospectus prepared in connection with such Demand
Registration, then such Demand Registration
<PAGE>
shall not count as one of the four Demand Registrations permitted hereunder
unless shares of Common Stock representing five percent (5%) or more of the
then outstanding Common Stock, including Common Stock Equivalents, are sold
pursuant to the registration statement prepared in connection with such
Demand Registration within 90 days of the effective date of such
registration statement and prior to the occurrence of such material adverse
change or event.
If at the time of any Request Notice (i) the Company is engaged
in a registered public offering as to which the Fund Investor Holders had
the right to include their Registrable Securities, either as a Piggyback
Registration or pursuant to the Fund Investor Holders' participation rights
in respect of an LDC Demand Registration or an Institutional Investor
Demand Registration, or which was made on Form S-4 or any successor form,
(ii) the Company is engaged in any other activity outside of the ordinary
course of business, such as a merger, consolidation, recapitalization or
acquisition which, in the good faith judgment of the Board, would be
materially and adversely affected by the requested registration or (iii)
the Board makes a good faith determination that the public disclosures
required to be made in the requested registration statement would have a
material and adverse impact on the business, financial condition or
prospects of the Company, the Company may at its option direct that such
request be delayed for a period of not more than 90 days, which right to
delay may be exercised by the Company only one time in respect of each Fund
Investor Demand Registration.
The Company shall have the same rights to piggyback on a Fund
Investor Demand Registration as a Fund Investor Holder would have in a
Piggyback Registration permitted under Section 2.1 subject to the pro rata
allocations set forth in Section 2.2.4..
2.2.2. Selection of Underwriters. If a proposed Fund Investor
Demand Registration involves either a firm or best efforts underwritten
offering, the Fund Investor Holder(s) giving the Request Notice with
respect to such Fund Investor Demand Registration shall have the right,
subject to approval by the Company (which approval shall not be
unreasonably withheld), to select the underwriter or underwriters to manage
such Fund Investor Demand Registration.
2.2.3. Effective Registration Statement. A registration requested
pursuant to this Section 2.2 shall not be deemed to have been effected
unless the registration statement prepared in connection therewith has
become effective; provided, however, that if, within 75 days after such
registration statement has become effective (135 days in the case of the
Shelf Registration), the offering of Registrable Securities pursuant to
such registration statement is interfered with by any stop order,
injunction or other order or requirement of the Commission or other
governmental agency or court (collectively, a "Stop Order"), such
registration shall be deemed not to have been effected. Notwithstanding the
preceding sentence, if any such Stop Order is rescinded, the
<PAGE>
effective period shall continue upon such rescission and be extended by the
number of days by which such Stop Order reduced the effective period.
2.2.4. Priority on Demand Registrations. If the managing
underwriter or underwriters of a Demand Registration initiated under this
Agreement, the LDC Registration Rights Agreement or the Institutional
Investor Registration Rights Agreement advise the Company in writing that
in its or their opinion the number of shares of Common Stock proposed to be
sold in such Demand Registration exceeds the number which can be sold, or
would adversely affect the price at which the Common Stock could be sold in
such offering, the Company will include in such registration only that
number of shares of Common Stock which, in the opinion of such underwriter
or underwriters, can be sold in such offering without so affecting such
price. The shares of Common Stock to be included in such Demand
Registration shall be apportioned (i) first, pro rata among (x) the
Registrable Securities of the Fund Investor Holders who have made a request
to be included in such Demand Registration, (y) shares of Common Stock held
by LDC Holders who have made a request to be included in such Demand
Registration and (z) shares of Common Stock held by Institutional Investors
who have made a request to be included in such Demand Registration, based
on the number of shares required to be included in such registration
statement, and (ii) second, pro rata among any other shares of Common Stock
proposed to be included in such Demand Registration, including any shares
proposed to be sold by the Company pursuant to such Demand Registration.
2.2.5. Approval of LDC Holders and Institutional Investors. As
evidenced by the Amendment and Waiver dated as of March 25, 1999, entered
into by and between the Company and the LDC Holders (a copy of which is
attached hereto as Annex A), the Company represents that the LDC Holders
have approved of the Company's entering into of this Agreement and the
granting to the Fund Investor Holders of registration rights in respect of
Piggyback Registrations and Demand Registrations on the terms and
conditions set forth herein. As evidenced by the Amendment and Waiver dated
as of March 25, 1999, entered into by and between the Company and the
Institutional Investors (a copy of which is attached hereto as Annex B),
the Company represents that the Institutional Investors have approved of
the Company's entering into of this Agreement and the granting to the Fund
Investor Holders of registration rights in respect of Piggyback
Registrations and Demand Registrations on the terms and conditions set
forth herein.
2.2.6. Additional Rights. If the Company at any time grants to
any other holders of Common Stock or Common Stock Equivalents any rights to
request the Company to effect the registration under the 1933 Act of any
such shares of Common Stock on terms more favorable to such holders than
the terms set forth in this Agreement,
<PAGE>
the terms of this Agreement shall be deemed amended or supplemented to the
extent necessary to provide the Fund Investor Holders with the same more
favorable terms. The Company shall not grant any other person rights to
register securities of the Company on terms which could restrict in any way
the ability of the Company fully to perform its obligations to the Fund
Investor Holders pursuant to this Agreement.
SECTION 2.3. Registration Procedures. It shall be a condition
precedent to the obligations of the Company and any underwriter or
underwriters to take any action pursuant to this Article II that the Fund
Investor Holders requesting inclusion in any Piggyback Registration or
Demand Registration (collectively referred to as a "Registration") furnish
to the Company such information regarding them, the Registrable Securities
held by them, the intended method of disposition of such Registrable
Securities, and such agreements regarding indemnification, disposition of
such securities and the other matters referred to in this Article II as the
Company may reasonably request and as may be required in connection with
any action to be taken by the Company or any such underwriter. With respect
to any Registration which includes Registrable Securities held by a Fund
Investor Holder, the Company shall, subject to Sections 2.1 and 2.2:
2.3.1. Prepare and file with the Commission a registration
statement on the appropriate form prescribed by the Commission within 60
days after the end of the period within which requests for registration may
be given to the Company, file with the Commission any necessary amendments
to the registration statement with respect to such Registrable Securities
and use its best efforts to cause such registration statement to become
effective; provided, however, that at least five business days prior to
filing a registration statement or prospectus or any amendments or
supplements thereto, including documents incorporated by reference after
the initial filing of the registration statement, the Company shall furnish
to the holders of the Registrable Securities covered by such registration
statement and the underwriter or underwriters, if any, copies of or drafts
of all such documents proposed to be filed, which documents shall be
subject to the reasonable review of such holders and underwriters, if any,
and the Company shall not file any registration statement or amendment
thereto or any prospectus or any supplement thereto or any documents
required to be incorporated by reference therein to which the Fund Investor
Holders or the underwriters, if any, shall reasonably object;
2.3.2. Prepare and file with the Commission such amendments and
post-effective amendments to such registration statement and any documents
required to be incorporated by reference therein as may be necessary to
keep the registration statement effective for a period of time as necessary
to complete the offering, which period shall be not less than 90 days (or
180 days in the case of the Shelf Registration) (or such shorter period
that shall terminate when all Registrable Securities covered by such
registration statement have been sold or withdrawn, but not prior to the
expiration of the time period
<PAGE>
referred to in Section 4(3) of the 1933 Act and Rule 174 thereunder, if
applicable); cause the prospectus to be supplemented by any required
prospectus supplement, and as so supplemented to be filed pursuant to Rule
424 under the 1933 Act (or any successor rule); and comply with the
provisions of the 1933 Act applicable to it with respect to the disposition
of all Registrable Securities covered by such registration statement during
the applicable period in accordance with the intended methods of
disposition by the sellers thereof set forth in such registration statement
or supplement to the prospectus;
2.3.3. Furnish to each such Fund Investor Holder, without charge,
at least one conformed copy of the registration statement and any
post-effective amendment thereto, upon request, and such number of copies
of the prospectus (including each preliminary prospectus) and any
amendments or supplements thereto, and any exhibits or documents
incorporated by reference therein as any such Fund Investor Holder or
underwriter or underwriters, if any, may request in order to facilitate the
disposition of the securities being sold by any such Fund Investor Holder
(it being understood that the Company consents to the use of the prospectus
and any amendment or supplement thereto by any such Fund Investor Holder
covered by the registration statement and the underwriter or underwriters,
if any, in connection with the offering and sale of the securities covered
by the prospectus or any amendments or supplements thereto);
2.3.4. Immediately notify each such Fund Investor Holder, at any
time when a prospectus relating thereto is required to be delivered under
the 1933 Act, when the Company becomes aware of the happening of any event
as a result of which the prospectus included in such registration statement
(as then in effect) contains any untrue statement of material fact or omits
to state a material fact necessary to make the statements therein (in the
case of the prospectus or any preliminary prospectus, in light of the
circumstances under which they were made) not misleading and, as promptly
as practicable thereafter, prepare and file with the Commission and furnish
a supplement or amendment to such prospectus so that, as thereafter
delivered to the Fund Investor Holders (a reasonable number of such amended
and supplemented prospectuses having been delivered to the Fund Investor
Holders), such prospectus will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading;
2.3.5. Use its best efforts to cause all securities included in
such registration statement to be listed, by the date of the first sale of
securities pursuant to such registration statement, on each national
securities exchange or market on which the Common Stock is then listed;
<PAGE>
2.3.6. Make every reasonable effort to obtain the withdrawal of
any Stop Order suspending the effectiveness of the registration statement
at the earliest possible moment;
2.3.7. Subject to the time limitations specified in Section
2.3.2, if requested by the managing underwriter or underwriters or any such
Fund Investor Holder, promptly incorporate in a prospectus supplement or
post-effective amendment such information as the managing underwriter or
underwriters or such Fund Investor Holder reasonably requests to be
included therein, including, without limitation, with respect to the number
of shares being sold by such Fund Investor Holder to such underwriter or
underwriters, the purchase price being paid therefor by such underwriter or
underwriters and with respect to any term of the underwritten offering of
the securities to be sold in such offering; and make all required filings
of such prospectus supplement or post-effective amendment as soon as
practicable after being notified of the matters to be incorporated in such
prospectus supplement or post-effective amendment;
2.3.8. As promptly as practicable after the filing with the
Commission of any document which is incorporated by reference into a
registration statement, deliver a reasonable number of copies of such
document to each such Fund Investor Holder;
2.3.9. Prior to the date on which the registration statement is
declared effective, use its best efforts to register or qualify, and
cooperate with such Fund Investor Holders, the underwriter or underwriters,
if any, and their counsel in connection with the registration or
qualification of, the securities covered by the registration statement for
offer and sale under the securities or blue sky laws of each state and
other jurisdiction of the United States as such Fund Investor Holders or
managing underwriter or underwriters, if any, requests in writing, use its
best efforts to keep each such registration or qualification effective,
including through new filings, or amendments or renewals, during the period
such registration statement is required to be kept effective and do any and
all other acts or things necessary or advisable to enable the disposition
in all such jurisdictions of the Registrable Securities covered by the
applicable registration statement; provided, however, that the Company
shall not be required to qualify generally to do business in any
jurisdiction where it is not then so qualified or to take any action which
would subject it to general service of process in any such jurisdiction
where it is not then so subject;
2.3.10. Enter into such customary agreements (including an
underwriting agreement in customary form) and take such other actions
customarily taken by registrants, if any, as the Fund Investor Holders or
the underwriters may reasonably request in order to expedite or facilitate
the disposition of such Registrable Securities;
<PAGE>
2.3.11. Obtain a "cold comfort" letter or letters from the
Company's independent public accountants in customary form and covering
matters of the type customarily covered by "cold comfort" letters as the
underwriters, if any, may reasonably request;
2.3.12. Make available for inspection by any Fund Investor Holder
holding Registrable Securities covered by such registration statement, by
any underwriter participating in any disposition to be effected pursuant to
such registration statement and by any attorney, accountant or other agent
retained by any such seller or any such underwriter, all pertinent
financial and other records, pertinent corporate documents and properties
of the Company, and cause the Company's officers, directors and employees
to supply all information reasonably requested by any such Fund Investor
Holder, underwriter, attorney, accountant or agent in connection with such
registration statement;
2.3.13. Cooperate with such Fund Investor Holders and the
managing underwriter or underwriters, if any, to facilitate the timely
preparation and delivery of certificates (not bearing any restrictive
legends) representing securities to be sold under the registration
statement, and enable such securities to be in such denominations and
registered in such names as the Fund Investor Holders or the managing
underwriter or underwriters, if any, may request; and
2.3.14. Use its best efforts to cause the securities covered by
the registration statement to be registered with or approved by such other
governmental agencies or authorities within the United States, including,
without limitation, the National Association of Securities Dealers, Inc.,
as may be necessary to enable the seller or sellers thereof or the
underwriter or underwriters, if any, to consummate the disposition of such
Registrable Securities.
The Fund Investor Holders, upon receipt of any notice from the
Company of the happening of any event of the kind described in Section
2.3.4, shall forthwith discontinue disposition of the securities until the
Fund Investor Holders' receipt of the copies of the supplemented or amended
prospectus contemplated by Section 2.3.4 or until they are advised in
writing (the "Advice") by the Company that the use of the prospectus may be
resumed, and have received copies of any additional or supplemental filings
which are incorporated by reference in the prospectus, and, if so directed
by the Company, each Fund Investor Holder shall, or shall request the
managing underwriter or underwriters, if any, to, deliver to the Company
(at the Company's expense) all copies, other than permanent file copies
then in such Fund Investor Holder's possession, of the prospectus covering
such securities which is current at the time of receipt of such notice. In
the event that the Company gives any such notice, the time periods set
forth in Section 2.3.4 shall be extended by the number of days during the
period from and including the date of the giving of such notice to and
including the date when each seller
<PAGE>
of securities covered by such registration statement shall have received
the copies of the supplemented or amended prospectus contemplated by
Section 2.3.4 or the Advice.
SECTION 2.4. Registration Expenses. In the case of any
Registration, the Company shall bear all of the costs and expenses of such
Registration (including, without limitation, the expenses of preparing any
registration statement, Commission and state "blue sky" filings,
registration and qualification fees, the cost of providing any legal
opinion or "cold comfort" letters requested by the Fund Investor Holders
and printing costs) and legal fees or expenses of one counsel for the Fund
Investor Holders, the LDC Holders and the Institutional Investors mutually
selected by the Fund Investor Holders, the LDC Holders and the
Institutional Investors (such counsel being subject to the reasonable
approval of the Company); provided, however, that the Company shall not be
responsible for registration or qualification fees or underwriter's
discounts or commissions that are attributable to the Registrable
Securities of a Fund Investor Holder.
SECTION 2.5. Indemnification and Contribution.
2.5.1. Indemnification by the Company. The Company agrees to
indemnify and hold harmless each Fund Investor Holder, its officers,
directors and agents and each person who controls (within the meaning of
the 1933 Act and the Exchange Act) such Fund Investor Holder against all
losses, claims, damages, liabilities and expenses arising out of or based
upon any untrue or alleged untrue statement of a material fact contained in
any registration statement, prospectus or preliminary prospectus in which
such Fund Investor Holder is participating or in any document incorporated
by reference therein or any omission or alleged omission to state therein a
material fact necessary to make the statements therein (in the case of the
prospectus or any preliminary prospectus, in light of the circumstances
under which they were made) not misleading, except insofar as the same are
caused by, based upon or contained in any information with respect to such
Fund Investor Holder furnished in writing to the Company by such Fund
Investor Holder expressly for use therein; provided, however, that the
foregoing indemnity agreement with respect to any preliminary prospectus
shall not inure to the benefit of any Fund Investor Holder from whom the
person asserting such loss, claim, damage or liability purchased shares of
Common Stock if it is determined that it was the responsibility of such
Fund Investor Holder to provide such person with a current copy of the
prospectus and such current copy of the prospectus would have cured such
loss, claim, damage or liability. The Company shall also indemnify
underwriters (as such term is defined in the 1933 Act), their officers and
directors and each person who controls such persons (within the meaning of
the 1933 Act and the Exchange Act) to the same extent as provided above
with respect to the indemnification of the Fund Investor Holders.
<PAGE>
2.5.2. Indemnification by Fund Investor. In connection with any
Registration in which a Fund Investor Holder is participating, such Fund
Investor Holder shall furnish to the Company in writing such information
and affidavits with respect to such Fund Investor Holder as the Company may
reasonably request for use in connection with any registration statement or
prospectus and the Fund Investors agree to indemnify and hold harmless the
Company, its directors, officers and agents and each person who controls
(within the meaning of the 1933 Act and the Exchange Act) the Company
against any losses, claims, damages, liabilities and expenses arising out
of or based upon any untrue statement of a material fact or any omission to
state a material fact necessary to make the statements in the registration
statement or prospectus or preliminary prospectus (in the case of the
prospectus or preliminary prospectus, in light of the circumstances under
which they were made) not misleading, to the extent, but only to the
extent, that such untrue statement or omission is contained in any
information or affidavit with respect to such Fund Investor Holder
furnished in writing to the Company by such Fund Investor Holder expressly
for use therein; provided, however, that the amount recoverable by the
Company from the Fund Investors under this indemnification provision shall
not exceed the amount of net proceeds received by all Fund Investor Holders
from the sale of Registrable Securities in connection with any such
Registration; and provided further that the indemnity agreement contained
in this Section 2.5.2 shall not apply to amounts paid in settlement of any
loss, claim, damage, liability or action arising pursuant to a Registration
if such settlement is effected without the consent of the Fund Investors
(which consent shall not be unreasonably withheld). Such indemnity shall
remain in full force and effect regardless of any investigation made by or
on behalf of the Company or any of the prospective sellers, or any of their
respective Affiliates, directors, officers or controlling persons and shall
survive the transfer of such securities by such seller.
2.5.3 Conduct of Indemnification Proceedings. Any person entitled
to indemnification hereunder shall (i) give prompt written notice to the
indemnifying party of any claim with respect to which it seeks
indemnification and (ii) unless in such indemnified party's reasonable
judgment a conflict of interest may exist between such indemnified and
indemnifying party, permit the indemnifying party to assume the defense of
such claim, with counsel reasonably satisfactory to the indemnified party.
The failure to so notify the indemnifying party shall relieve the
indemnifying party from any liability hereunder with respect to the action
to the extent that such failure materially prejudices the indemnifying
party. Whether or not such defense is assumed by the indemnifying party,
the indemnifying party shall not be subject to any liability for any
settlement made without its consent (which consent shall not be
unreasonably withheld). No indemnifying party shall consent to entry of any
judgment or enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
indemnified party of a release from all liability in respect of such claim
or litigation. An indemnifying party who is not entitled to, or elects not
to,
<PAGE>
assume the defense of a claim shall not be obligated to pay the fees and
expenses of more than one counsel for all parties indemnified by such
indemnifying party with respect to such claim.
2.5.4. Contribution. If for any reason the indemnification
provided for in the preceding Sections 2.5.1 and 2.5.2 is unavailable to an
indemnified party as contemplated by the preceding Sections 2.5.1 and 2.5.2
for any reason, then the indemnifying party shall contribute to the amount
paid or payable by the indemnified party as a result of such loss, claim,
damage or liability in such proportion as is appropriate to reflect not
only the relative benefits received by the indemnified party and the
indemnifying party, but also the relative fault of the indemnified party
and the indemnifying party, as well as any other relevant equitable
considerations. Notwithstanding the foregoing, if the indemnifying party is
any Fund Investor, any contribution pursuant to this Section 2.5.4 shall be
several and not joint, and shall be limited to the amount of net proceeds
received by such Fund Investor Holder from the sale of Registrable
Securities in connection with the applicable Registration.
2.5.5. Other Indemnification. Indemnification similar to that set
forth in the preceding subdivisions of this Section 2.5 (with appropriate
modifications) shall be given by the Company and the Fund Investors with
respect to any required registration or other qualification of securities
under any Federal or state law or regulation or governmental authority
other than the 1933 Act.
SECTION 2.6. Exchange Act Reports. The Company agrees that it
will use its best efforts to file in a timely manner all reports required
to be filed by it pursuant to the Exchange Act to the extent the Company is
required to file such reports. Upon request of a Fund Investor Holder, the
Company will furnish the requesting Fund Investor Holder with such
information as may be necessary to enable such Fund Investor Holder to
effect sales pursuant to Rule 144A.
SECTION 2.7. Restrictions on Public Sale by Holder of Securities.
2.7.1. To the extent not inconsistent with applicable law, any
Fund Investor Holder whose Registrable Securities are included in a
Registration relating in whole or in part to an underwritten public
offering agrees not to effect any public sale or distribution of the issue
being registered or any similar security of the Company, or any securities
convertible into or exchangeable or exercisable for such securities,
including a public sale pursuant to Rule 144 under the 1933 Act, during the
14 days prior to, and during the 180-day period beginning on, the effective
date of such registration statement (except as part of such Registration);
provided, however, that the foregoing shall only apply if and to the extent
requested by the managing underwriter or underwriters.
<PAGE>
2.7.2. Each Fund Investor Holder agrees that, in the event the
Company files a registration statement under the 1933 Act with respect to
an underwritten public offering of any shares of Common Stock or Common
Stock Equivalent, such Fund Investor Holder shall not effect any public
sale or distribution of any Common Stock owned by it (other than as part of
such underwritten public offering) within 7 days prior to, and during the
180-day period beginning on, the effective date of such registration
statement and the Company hereby also so agrees and agrees to use its best
efforts to cause, as the managing underwriters may require, each other
holder of any equity security, or of any security convertible into or
exchangeable or exercisable for any equity security, of the Company
purchased from the Company (at any time other than in a public offering) to
so agree.
SECTION 2.8. Participation in Registrations. No Fund Investor
Holder may participate in any Registration hereunder unless such Fund
Investor Holder (i) agrees to sell such Fund Investor Holder's securities
on the basis provided in any underwriting arrangements approved by the
persons entitled hereunder to approve such arrangements and (ii) completes
and executes all questionnaires, powers of attorney, underwriting
agreements and other documents customarily required under the terms of such
underwriting arrangements.
SECTION 2.9. Remedies. Each Fund Investor shall have the right
and remedy to have the provisions of Sections 2.1 and 2.2 specifically
enforced by any court having jurisdiction in the event that the Company
breaches such provisions, and the Company shall reimburse the Fund Investor
for the reasonable costs of the expenses for counsel for the Fund Investor
incurred in connection with such proceeding.
ARTICLE III
Miscellaneous
SECTION 3.1. Notices. All notices or other communications
required or permitted to be given hereunder shall be in writing and shall
be delivered by hand or sent by prepaid telex, cable or telecopy or sent,
postage prepaid, by registered, certified or express mail or reputable
overnight courier service and shall be deemed given when so delivered by
hand, telexed, cabled or telecopied, or if mailed, three days after mailing
(one business day in the case of express mail or overnight courier
service), as follows:
(i) if to the Company, to
TransMontaigne Inc.
370 Seventeenth Street
<PAGE>
Suite 2750
Denver, Colorado 80202
Phone: (303) 626-8200
Fax: (303) 626-8228
Attention: Erik B. Carlson
with a copy to:
Cravath, Swaine & Moore
Worldwide Plaza
825 Eighth Avenue
New York, New York 10019
Phone: (212) 474-1600
Fax: (212) 474-3700
Attention: Kris F. Heinzelman, Esq.
(ii) If to a Fund Investor, to:
the addresses indicated on Schedule 1 to the Preferred
Stock and Warrant Purchase Agreements.
SECTION 3.2. Binding Effect; Benefits. This Agreement shall be
binding upon and inure to the benefit of the parties to this Agreement and
their respective successors and assigns. Nothing in this Agreement, express
or implied, is intended or shall be construed to give any person other than
the parties to this Agreement, the other Fund Investor Holders, if any, and
their respective successors or assigns any legal or equitable right, remedy
or claim under or in respect of any agreement or any provision contained
herein. This Agreement constitutes the entire agreement and understanding,
and supersedes and terminates all prior agreements and understandings, both
oral and written (including those contained in the Stock and Warrant
Purchase Agreements), between the parties hereto relating to the subject
matter hereof.
SECTION 3.3. Waiver. Any party hereto may, by written notice to
any other party (i) extend the time for the performance of any of the
obligations or other actions of such other party under this Agreement to
the extent that such obligations or other actions are due to the party
giving notice; (ii) waive compliance with any of the conditions or
covenants of such other party contained in this Agreement to the extent
that such conditions or covenants relate to the party giving notice; and
(iii) waive or modify performance of any of the obligations of such other
party under this Agreement to the extent that such obligations are due to
the party giving notice. Except as provided in the
<PAGE>
preceding sentence, no action taken pursuant to this Agreement, including,
without limitation, any investigation by or on behalf of any party, shall
be deemed to constitute a waiver by the party taking such action of
compliance with any representation, warranty, covenant or agreement
contained herein. Neither the waiver by any party hereto of a breach of any
provision hereof or any preceding or succeeding breach nor the failure by
any party to exercise any right or privilege hereunder shall be deemed a
waiver of such party's rights or privileges hereunder nor shall it be
deemed a waiver of such party's rights to exercise the same at any
subsequent time or times hereunder.
SECTION 3.4. Amendments. No amendment, modification or waiver in
respect of this Agreement shall be effective unless it shall be in writing
and signed by the Company and the holders of two thirds of the Registrable
Securities. Any such amendment, modification or waiver in respect of this
Agreement executed by or on behalf of the Fund Investors shall bind each
other Fund Investor Holder, if any, to the terms and conditions thereof.
The Company agrees that all holders of Registrable Securities shall be
notified by the Company in advance of any proposed amendment, modification
or waiver of this Agreement, but failure to give such notice shall not in
any way affect the validity of any such amendment, modification or waiver.
In addition, promptly after obtaining the written consent of the holders as
herein provided, the Company shall transmit a copy of any amendment,
modification or waiver which has been adopted to all holders of Registrable
Securities then outstanding, but failure to transmit copies shall not in
any way affect the validity of any such amendment, modification or waiver.
SECTION 3.5. Assignability. Neither this Agreement nor any right,
remedy, obligation or liability arising hereunder or by reason hereof shall
be assignable by either the Company or any Fund Investor (other than, in
the case of any Fund Investor, to a Permitted Affiliate of the Fund
Investors in connection with a transfer of a portion of the Fund Investor
Shares), or any transferee of the foregoing.
SECTION 3.6. Governing Law. This Agreement shall be governed by
and construed in accordance with the internal laws of the State of New York
applicable to agreements made and to be performed entirely within such
State, without regard to the conflicts of law principles of such State.
SECTION 3.7. Attorney Fees. A party in breach of this Agreement
shall, on demand, indemnify and hold harmless the other parties hereto from
and against all reasonable out-of-pocket expenses, including legal fees,
incurred by such other parties by reason of the enforcement and protection
of their rights under this Agreement. The payment of such expenses is in
addition to any other relief to which such other parties may be entitled.
<PAGE>
SECTION 3.8. Section and Other Headings. The section and other
headings contained in this Agreement are for reference purposes only and
shall not affect the meaning or interpretation of this Agreement.
SECTION 3.9. Counterparts. This Agreement may be executed in one
or more counterparts, all of which shall be considered one and the same
agreement, and shall become effective when one or more such counterparts
have been signed by each of the parties and delivered to the other parties
at any time on or prior to March 31, 1999.
<PAGE>
IN WITNESS WHEREOF, the parties have caused this Agreement to be
duly executed as of the date first written above.
TRANSMONTAIGNE INC.
by
/s/ Cortlandt S. Dietler
-----------------------------------------
Name: Cortlandt S. Dietler
Title:
FLEMING US DISCOVERY FUND III, L.P.
By: FLEMING US DISCOVERY PARTNERS, L.P.,
its general partner
By: FLEMING US DISCOVERY, LLC,
its general partner
By: /s/ Robert L. Burr
---------------------------
Robert L. Burr, member
FLEMING US DISCOVERY OFFSHORE FUND III, L.P.
By: FLEMING US DISCOVERY PARTNERS, L.P.,
its general partner
By: FLEMING US DISCOVERY, LLC,
its general partner
By: /s/ Robert L. Burr
---------------------------
Robert L. Burr, member
FIRST RESERVE FUND VII, LIMITED
PARTNERSHIP
By FIRST RESERVE GP VII, L.P.
its general partner
By: FIRST RESERVE CORPORATION
its general partner
By: /s/ William McCauley
----------------------
Name: William McCauley
Title:
FIRST RESERVE FUND VIII, L.P.
By: FIRST RESERVE GP VIII, L.P.
its general partner
By: FIRST RESERVE CORPORATION
its general partner
By: /s/ William McCauley
--------------------------
Name: William McCauley
Title:
<PAGE>
VENCAP HOLDINGS (1987) PTE LTD
By: /s/ Brett Fisher
----------------------
Name: Brett Fisher
Title:
LAUGHLIN TRUSTEES ET AL FBO RICHARD R.
OHRSTROM, JR. DTD 12/22/97
By: /s/ Andrew W. Regan
---------------------------
Name: Andrew W. Regan
Title:
LAUGHLIN TRUSTEES ET AL FBO KENNETH
M. OHRSTROM DTD 12/22/97
By: /s/ Andrew W. Regan
---------------------------
Name: Andrew W. Regan
Title:
LAUGHLIN TRUSTEES ET AL FBO GEORGE L.
OHRSTROM II DTD 12/22/97
By: /s/ Andrew W. Regan
---------------------------
Name: Andrew W. Regan
Title:
LAUGHLIN TRUSTEES ET AL FBO BARNABY
A. OHRSTROM DTD 12/22/97
By: /s/ Andrew W. Regan
---------------------------
Name: Andrew W. Regan
Title:
CODAN TRUSTEES ET AL FBO
CHRISTROPHER F. OHRSTROM DTD 12/22/97
By: /s/ Andrew W. Regan
---------------------------
Name: Andrew W. Regan
Title:
<PAGE>
CODAN TRUSTEES ET AL FBO MARK J.
OHRSTROM DTD 12/22/97
By: /s/ Andrew W. Regan
---------------------------
Name: Andrew W. Regan
Title:
CODAN TRUSTEES ET AL FBO ESMOND V.
HARMSWORTH DTD 12/22/97
By: /s/ James B. Richardson
---------------------------
Name: James B. Richardson
Title: Trustee
YORKTOWN ENERGY PARTNERS III, L.P.
By: YORKTOWN III COMPANY, L.L.C.,
its general partner
By: /s/ Peter A. Leidel, member
---------------------------
Peter A. Leidel, member
YORKTOWN PARTNERS, L.L.C.,
as agent
By: /s/ Peter A. Leidel
--------------------------------
Peter A. Leidel, member
TICONDEROGA PARTNERS IV, L.P.,
By: TICONDEROGA ASSOCIATES IV,
L.L.C.,
its general partner
By: /s/ Peter A. Leidel
---------------------------
Peter A. Leidel, member
CFE, INC.
By: /s/ Glenn P. Bartley
--------------------------------
Name: Glenn P. Bartley
Title:
WIEGERS & CO.
By: /s/ George A. Wiegers
--------------------------------
Name: George A. Wiegers
Title: General Partner
WIEGERS FAMILY FOUNDATION
By: George A. Wiegers
--------------------------------
Name: George A. Wiegers
Title: Trustee
VESTAR CAPITAL PARTNERS III, L.P.
By: Vestar Associates III, L.P.
its general partner
By: Vestar Associates Corporation III
its general partner
By: /s/ James C. Kelley
---------------------------
Name: James C. Kelley
Title: Managing Director
CORTLANDT S. DIETLER
/s/ Cortlandt S. Dietler
--------------------------
Name: Cortlandt S. Dietler
Title:
<PAGE>
EXHIBIT 99.7
AMENDMENT AND WAIVER dated as of March
25, 1999, by and between TransMontaigne Inc.,
a Delaware corporation (the "Company"), and
Louis Dreyfus Corporation, a New York
corporation ("LDC").
WHEREAS, the Company and LDC are parties to a
Registration Rights Agreement dated as of October 30, 1998
(the "Agreement");
WHEREAS, the Company and certain purchasers party
thereto (collectively, the "Fund Investors") have entered
into or propose to enter into Preferred Stock and Warrant
Purchase Agreements (the "Stock and Warrant Purchase
Agreements"), pursuant to which the Company has agreed to
sell to the Fund Investors, and the Fund Investors have
agreed to purchase from the Company, up to an aggregate of
200,000 shares of Series A Convertible Preferred Stock, par
value $.01 per share (the "Series A Preferred Stock"), and up
to 13,334,000 warrants (the "Warrants") to purchase up to
8,000,400 shares of the Company's Common Stock (as defined
below);
WHEREAS, upon conversion of the Series A Preferred
Stock and upon exercise of the Warrants the Company will
issue to the Fund Investors (and to each Person to whom the
Fund Investors are permitted under the terms of the Stock and
Warrant Purchase Agreements and the Fund Investor
Registration Rights Agreement (as defined below) to transfer
any portion of the Series A Preferred Stock or the Warrants)
shares (the "Shares") of common stock, par value $.01 per
share, of the Company (the "Common Stock");
WHEREAS, pursuant to the Stock and Warrant Purchase
Agreements, the Company has agreed to enter into a
Registration Rights Agreement (the "Fund Investor
Registration Rights Agreement") to, among other things, grant
the Fund Investors (and to each Person to whom the Fund
Investors are permitted under the terms of the Stock and
Warrant Purchase Agreements and the Fund Investor
Registration Rights Agreement to transfer any portion of the
Series A Preferred Stock, the Warrants or the Shares
(together, the "Securities")) registration rights in respect
of the Shares substantially comparable to the rights set
forth in the Agreement;
WHEREAS, the Company and LDC desire to amend the
Agreement in certain respects to coordinate the provisions of
the Agreement and the Fund Investor Registration Rights
Agreement and LDC desires to waive certain provisions of the
<PAGE>
Agreement to permit the Company to enter into the Fund
Investor Registration Rights Agreement.
NOW, THEREFORE, in consideration of the aforesaid
and the mutual promises hereinafter made, the parties hereto
agree as follows:
SECTION 1. Defined Terms. Unless otherwise defined
herein, all capitalized terms used herein shall have the
meanings ascribed to such terms in the Agreement.
SECTION 2. Waiver of Certain Provisions of the
Agreement. In accordance with Section 4.3 of the Agreement,
LDC hereby waives any and all provisions of the Agreement to
the extent necessary in order to permit the Company to enter
into and perform under the Fund Investor Registration Rights
Agreement, a copy of which is attached hereto as Annex A.
SECTION 3. Amendments to the Agreement. Effective
as of the date hereof, the Agreement is hereby amended and
supplemented as follows:
(a) Pari Passu Treatment. LDC hereby acknowledges
and agrees that, at any time on or after December 31, 1999,
(i) the Fund Investors and (ii) each Person to whom the Fund
Investors are permitted under the terms of the Stock and
Warrant Purchase Agreements and the Fund Investor
Registration Rights Agreement to transfer the Securities
(collectively, the "Fund Investor Holders") have the right
(i) pursuant to Section 2.1.1 of the Fund Investor
Registration Rights Agreement, to participate in Piggyback
Registrations and (ii) pursuant to Section 2.2.1 of the Fund
Investor Registration Rights Agreement, to participate in
Demand Registrations, in each case, pursuant to Sections
2.1.3 and 2.2.4, respectively, of the Fund Investor
Registration Rights Agreement, pari passu in terms of
priority with the LDC Holders under the Agreement. The
Company hereby acknowledges and agrees that the LDC Holders
have the right, pursuant to Sections 2.2.1 and 2.2.4 of the
Fund Investor Registration Rights Agreement and subject to
the terms and conditions set forth in Section 3(b) of this
Amendment and Waiver, to receive notice of, and participate
in, demand registrations initiated by the Fund Investor
Holders pursuant to the Fund Investor Registration Rights
Agreement ("Fund Investor Demand Registrations") pari passu
in terms of priority with the Fund Investor Holders
thereunder. Participation by an LDC Holder in a Fund Investor
Demand Registration shall count as one of the four Demand
Registrations that the LDC Holders have the right to
<PAGE>
request or participate in a request for pursuant to Section
2.2.1 of the Agreement.
(b) Notification of Fund Investor Demand
Registration Requests; Priority on Fund Investor Demand
Registrations. The Company agrees that it shall, within 10
days after receipt of a Fund Investor Demand Registration
request notice from any one or more of the Fund Investor
Holders pursuant to Section 2.2.1 of the Fund Investor
Registration Rights Agreement, serve written notice (the
"Fund Investor Notice") of such registration request to all
LDC Holders holding Registrable Securities and, subject to
the pro rata allocations set forth in the next succeeding
sentence, the Company shall include in such Fund Investor
Demand Registration all Registrable Securities held by LDC
Holders with respect to which the Company has received a
written request for inclusion therein within 20 days after
the giving of the Fund Investor Notice. The shares of Common
Stock to be included in any such Fund Investor Demand
Registration shall be apportioned (i) first, pro rata among
(x) the Registrable Securities of the Institutional Investors
who have made a request to be included in such Fund Investor
Demand Registration, (y) the Registrable Securities of the
LDC Holders who have made a request to be included in such
Fund Investor Demand Registration and (z) the Registrable
Securities of the Fund Investor Holders who have made a
request to be included in such Fund Investor Demand
Registration, and (ii) second, pro rata among any other
shares of Common Stock proposed to be included in such Fund
Investor Demand Registration, including any shares proposed
to be sold by the Company pursuant to such Fund Investor
Demand Registration. The Company represents that the Fund
Investor Holders have agreed to the LDC Holders' right to
participate in Fund Investor Demand Registrations on the
terms and conditions set forth in this Section 3(b).
(c) Blackout Period. Clause (i) of the first
sentence of the fourth paragraph of Section 2.2.1 of the
Agreement is hereby amended by deleting the phrase "either as
a Piggyback Registration or pursuant to the LDC Holders'
participation rights in respect of an Institutional Investor
Demand Registration" and inserting in lieu thereof the phrase
"whether as a Piggyback Registration, pursuant to the LDC
Holders' participation rights in respect of an Institutional
Investor Demand Registration or pursuant to the LDC Holders'
participation rights in respect of a Fund Investor Demand
Registration (as such term is defined in the Amendment and
Waiver dated as of March 25, 1999 to this Agreement)".
<PAGE>
(d) Registration Expenses. Section 2.4 of the
Agreement is hereby amended by deleting the phrase " legal
fees or expenses of one counsel for the LDC Holders and the
Institutional Investors mutually selected by the LDC Holders
and the Institutional Investors (such counsel being subject
to the reasonable approval of the Company)" beginning in the
eighth line thereof and inserting in lieu thereof the phrase
" and legal fees or expenses of one counsel for the
Institutional Investors, the LDC Holders and the Fund
Investor Holders (as such term is defined in the Amendment
and Waiver dated as of March 25, 1999 to this Agreement)
mutually selected by the Institutional Investors, the LDC
Holders and the Fund Investor Holders (such counsel being
subject to the reasonable approval of the Company)".
SECTION 4. Notices. All notices hereunder shall be
made in accordance with Section 4.1 of the Agreement.
SECTION 5. Governing Law. This Amendment and Waiver
shall be governed by and construed in accordance with the
internal laws of the State of New York applicable to
agreements made and to be performed entirely within such
State, without regard to the conflicts of law principles of
such State.
SECTION 6. Counterparts. This Amendment and Waiver
may be executed in one or more counterparts, all of which
shall be considered one and the same agreement, and shall
become effective when one or more such counterparts have been
signed by each of the parties and delivered to the other
parties.
<PAGE>
IN WITNESS WHEREOF, the parties have caused this
Amendment and Waiver to be duly executed as of the date first
written above.
TRANSMONTAIGNE INC.,
by /s/ Harold R. Logan, Jr.
---------------------------
Name: Harold R. Logan, Jr.
Title: Executive Vice
President/Finance
LOUIS DREYFUS CORPORATION,
by /s/ Peter Griffin
--------------------------
Name: Peter Griffin
Title: President
<PAGE>
EXHIBIT 99.8
SECOND AMENDMENT AND WAIVER dated as of
March 25, 1999, by and among TransMontaigne
Inc., a Delaware corporation (the "Company"),
and the entities listed on the signature pages
hereof (the "Institutional Investors").
WHEREAS, the Company and the Institutional
Investors are parties to a Registration Rights Agreement
dated as of April 17, 1996 as amended and waived on October
30, 1998 (the "Agreement");
WHEREAS, the Company and certain purchasers party
thereto (collectively, the "Fund Investors") have entered
into or propose to enter into Preferred Stock and Warrant
Purchase Agreements (the "Stock and Warrant Purchase
Agreements"), pursuant to which the Company has agreed to
sell to the Fund Investors, and the Fund Investors have
agreed to purchase from the Company, up to an aggregate of
200,000 shares of Series A Convertible Preferred Stock, par
value $.01 per share (the "Series A Preferred Stock"), and up
to 13,334,000 warrants (the "Warrants") to purchase up to
8,000,400 shares of the Company's Common Stock (as defined
below);
WHEREAS, upon conversion of the Series A Preferred
Stock and upon exercise of the Warrants the Company will
issue to the Fund Investors (and to each Person to whom the
Fund Investors are permitted under the terms of the and the
Fund Investor Registration Rights Agreement (as defined
below) to transfer any portion of the Series A Preferred
Stock or the Warrants) shares (the "Shares") of common stock,
par value $.01 per share, of the Company (the "Common
Stock");
WHEREAS, pursuant to the , the Company has agreed
to enter into a Registration Rights Agreement (the "Fund
Investor Registration Rights Agreement") to, among other
things, grant the Fund Investors (and to each Person to whom
the Fund Investors are permitted under the terms of the Stock
and Warrant Purchase Agreements and the Fund Investor
Registration Rights Agreement to transfer any portion of the
Series A Preferred Stock, the Warrants or the Shares
(together, the "Securities")) registration rights in respect
of the Shares substantially comparable to the rights set
forth in the Agreement;
WHEREAS, the Company and the Institutional
Investors desire to amend the Agreement in certain respects
to coordinate the provisions of the Agreement and the Fund
Investor Registration Rights Agreement and the Institutional
Investors desire to waive certain provisions of the
<PAGE>
Agreement to permit the Company to enter into the Fund
Investor Registration Rights Agreement.
NOW, THEREFORE, in consideration of the aforesaid
and the mutual promises hereinafter made, the parties hereto
agree as follows:
SECTION 1. Defined Terms. Unless otherwise defined
herein, all capitalized terms used herein shall have the
meanings ascribed to such terms in the Agreement.
SECTION 2. Waiver of Certain Provisions of the
Agreement. In accordance with Section 3.3 of the Agreement,
the Institutional Investors hereby waive any and all
provisions of the Agreement to the extent necessary in order
to permit the Company to enter into and perform under the
Fund Investor Registration Rights Agreement, a copy of which
is attached hereto as Annex A.
SECTION 3. Amendments to the Agreement. Effective
as of the date hereof, the Agreement is hereby amended and
supplemented as follows:
(a) Pari Passu Treatment. The Institutional
Investors hereby acknowledge and agree that, at any time on
or after December 31, 1999, (i) the Fund Investors and (ii)
each Person to whom the Fund Investors are permitted under
the terms of the Stock and Warrant Purchase Agreements and
the Fund Investor Registration Rights Agreement to transfer
shares of Common Stock (collectively, the "Fund Investor
Holders") have the right (x) pursuant to Section 2.1.1 of the
Fund Investor Registration Rights Agreement, to participate
in Piggyback Registrations and (y) pursuant to Section 2.2.1
of the Fund Investor Registration Rights Agreement, to
participate in Demand Registrations, in each case, pursuant
to Sections 2.1.3 and 2.2.4, respectively, of the Fund
Investor Registration Rights Agreement, pari passu in terms
of priority with the Institutional Investors under the
Agreement. The Company hereby acknowledges and agrees that
the Institutional Investors have the right, pursuant to
Sections 2.2.1 and 2.2.4 of the Fund Investor Registration
Rights Agreement and subject to the terms and conditions set
forth in Section 3(b) of this Second Amendment and Waiver, to
receive notice of, and participate in, demand registrations
initiated by the Fund Investor Holders pursuant to the Fund
Investor Registration Rights Agreement ("Fund Investor Demand
Registrations") pari passu in terms of priority with the Fund
Investor Holders thereunder. Participation by an
Institutional Investor in a Fund Investor Demand Registration
shall count as one of the four
<PAGE>
Demand Registrations that the Institutional Investors have
the right to request or participate in a request for pursuant
to Section 2.2.1 of the Agreement.
(b) Notification of Fund Investor Demand
Registration Requests; Priority on Fund Investor Demand
Registrations. The Company agrees that it shall, within 10
days after receipt of a Fund Investor Demand Registration
request notice from any one or more of the Fund Investor
Holders pursuant to Section 2.2.1 of the Fund Investor
Registration Rights Agreement, serve written notice (the
"Fund Investor Notice") of such registration request to all
Institutional Investors holding Registrable Securities and,
subject to the pro rata allocations set forth in the next
succeeding sentence, the Company shall include in such Fund
Investor Demand Registration all Registrable Securities held
by Institutional Investors with respect to which the Company
has received a written request for inclusion therein within
20 days after the giving of the Fund Investor Notice. The
shares of Common Stock to be included in any such Fund
Investor Demand Registration shall be apportioned (i) first,
pro rata among (x) the Registrable Securities of the
Institutional Investors who have made a request to be
included in such Fund Investor Demand Registration, (y) the
Registrable Securities of LDC Holders who have made a request
to be included in such Fund Investor Demand Registration and
(z) the Registrable Securities of the Fund Investor Holders
who have made a request to be included in such Fund Investor
Demand Registration and (ii) second, pro rata among any other
shares of Common Stock proposed to be included in such Fund
Investor Demand Registration, including any shares proposed
to be sold by the Company pursuant to such Fund Investor
Demand Registration. The Company represents that the Fund
Investor Holders have agreed to the Institutional Investors'
right to participate in Fund Investor Demand Registrations on
the terms and conditions set forth in this Section 3(b).
(c) Blackout Period. Clause (i) of the first
sentence of the second paragraph of Section 2.2.1 of the
Agreement is hereby amended by deleting the phrase "either as
a Piggyback Registration or pursuant to the Institutional
Investors' participation rights in respect of an LDC Demand
Registration (as such term is defined in the Amendment and
Waiver dated as of October 30, 1998 to this Agreement)" and
inserting in lieu thereof the phrase " whether as a Piggyback
Registration, pursuant to the Institutional Investors'
participation rights in respect of an LDC Demand Registration
(as such term is defined in the Amendment and Waiver dated as
of October 30, 1998 to this Agreement) or pursuant to the
Institutional Investors' participation
<PAGE>
rights in respect of a Fund Investor Demand Registration (as
such term is defined in the Second Amendment and Waiver dated
as of March 25, 1999 to this Agreement),".
(d) Registration Expenses. Section 2.4 of the
Agreement is hereby amended by deleting the phrase "and legal
fees or expenses of one counsel for the Institutional
Investors and the LDC Holders (as such term is defined in the
Amendment and Waiver dated as of October 30, 1998 to this
Agreement) mutually selected by the Institutional Investors
and the LDC Holders (such counsel being subject to the
reasonable approval of the Company)" beginning in the fifth
line thereof and inserting in lieu thereof the phrase "and
legal fees or expenses of one counsel for the Institutional
Investors, the LDC Holders (as such term is defined in the
Amendment and Waiver dated as of October 30, 1998 to this
Agreement) and the Fund Investor Holders (as such term is
defined in the Second Amendment and Waiver dated as of March
25, 1999 to this Agreement) mutually selected by the
Institutional Investors, the LDC Holders and the Fund
Investor Holders (such counsel being subject to the
reasonable approval of the Company)".
SECTION 4. Notices. All notices hereunder shall be
made in accordance with Section 3.1 of the Agreement.
SECTION 5. Governing Law. This Second Amendment and
Waiver shall be governed by and construed in accordance with
the internal laws of the State of New York applicable to
agreements made and to be performed entirely within such
State, without regard to the conflicts of law principles of
such State.
SECTION 6. Counterparts. This Second Amendment and
Waiver may be executed in one or more counterparts, all of
which shall be considered one and the same agreement, and
shall become effective when one or more such counterparts
have been signed by each of the parties and delivered to the
other parties.
<PAGE>
IN WITNESS WHEREOF, the parties have caused this
Second Amendment and Waiver to be duly executed as of the
date first written above.
TRANSMONTAIGNE INC.,
by /s/ Harold R. Logan, Jr.
--------------------------
Name: Harold R. Logan, Jr.
Title: Executive Vice
President/Finance
YORKTOWN INVESTORS: YORKTOWN ENERGY PARTNERS, L.P.,
by YORKTOWN COMPANY LLC,
its General Partner
by /s/ Peter A. Leidel
-----------------------
Name: Peter A. Leidel
Title: Member
YORKTOWN ENERGY PARTNERS II, L.P.,
by YORKTOWN II COMPANY LLC,
its General Partner
by /s/ Peter A. Leidel
----------------------
Name: Peter A. Leidel
Title: Member
LEXINGTON PARTNERS III, L.P.
by WARBURG DILLON READ, LLC,
its General Partner
by /s/ Steve Chrappa
-----------------------
Name: Steve Chrappa
Title: Associate Director
<PAGE>
LEXINGTON PARTNERS IV, L.P.
by DRMC, INC.,
its General Partner
by /s/ Steve Chrappa
------------------------
Name: Steve Chrappa
Title: Associate Director
WARBURG DILLON READ, LLC,
as Nominee
by /s/ Steve Chrappa
--------------------------
Name: Steve Chrappa
Title: Associate Director
WARBURG DILLON READ, LLC,
as Agent
by /s/ Steve Chrappa
---------------------------
Name: Steve Chrappa
Title: Associate Director
WATERWAGON & CO., Nominee for
Merrill Lynch Growth Fund for
Investment and Retirement
by /s/ Steven I. Silverman
---------------------------
Name: Steven I. Silverman
Title: Portfolio Manager
MASSMUTUAL INVESTORS: MASSACHUSETTS MUTUAL LIFE INSURANCE
COMPANY
by /s/ Richard C. Morrison
----------------------------
Name: Richard C. Morrison
Title: Managing Director
<PAGE>
THE FOLLOWING IS THE SIGNATURE
LINE AND LEGEND FOR MASSMUTUAL
CORPORATE INVESTORS:
MASSMUTUAL CORPORATE INVESTORS
by /s/ Richard C. Morrison
----------------------------
Name: Richard C. Morrison
Title: Vice President
The foregoing is executed on behalf
of MassMutual Corporate Investors,
organized under a Declaration of
Trust, dated September 13, 1985, as
amended from time to time. The
obligations of such Trust are not
personally binding upon, nor shall
resort be had to the property of,
any of the Trustees, shareholders,
officers, employees or agents of
such Trust, but the trust's
property only shall be bound.
<PAGE>
THE FOLLOWING IS THE SIGNATURE
LINE AND LEGEND FOR MASSMUTUAL
PARTICIPATION INVESTORS:
MASSMUTUAL PARTICIPATION INVESTORS
by /s/ Richard C. Morrison
---------------------------------
Name: Richard C. Morrison
Title: Vice President
The foregoing is executed on behalf
of MassMutual Participation
Investors, organized under a
Declaration of Trust, dated April
7, 1998, as amended from time to
time. The obligations of such Trust
are not personally binding upon,
nor shall resort be had to the
property of, any of the Trustees,
shareholders, officers, employees
or agents of such Trust, but the
trust's property only shall be
bound.
MASSMUTUAL CORPORATE VALUE PARTNERS
LIMITED, A Grand Cayman Island
Corporation
by MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY,
its Investment Manager
by /s/ Richard C. Morrison
----------------------------
Name: Richard C. Morrison
Title: Managing Director
<PAGE>
FIRST RESERVE INVESTORS: FIRST RESERVE SECURED ENERGY ASSETS
FUND, LIMITED PARTNERSHIP
by FIRST RESERVE CORPORATION,
as Managing General Partner
by /s/ William McCauley
-----------------------------
Name: William McCauley
Title:
FIRST RESERVE FUND VI, LIMITED
PARTNERSHIP
by FIRST RESERVE CORPORATION,
as Managing General Partner
by /s/ William McCauley
----------------------------
Name: William McCauley
Title:
FIRST RESERVE FUND V-II, LIMITED
PARTNERSHIP
by FIRST RESERVE CORPORATION,
as Managing General Partner
by /s/ William McCauley
----------------------------
Name: William McCauley
Title:
FIRST RESERVE FUND V, LIMITED
PARTNERSHIP
by FIRST RESERVE CORPORATION,
as Managing General Partner
by /s/ William McCauley
----------------------------
Name: William McCauley
Title:
