16
EXHIBIT D
EXECUTION COPY
STOCKHOLDERS' AGREEMENT
This STOCKHOLDERS' (this "Agreement") is dated as of June 28, 2002,
among TransMontaigne Inc., a Delaware corporation (the "Company"), Cortlandt X.
Xxxxxxx ("Xxxxxxx"), Xxxxxx X. Xxxxxxxx ("Xxxxxxxx"), Xxxxxx X. Xxxxx, Xx.
("Xxxxx"), Xxxxxxx X. Xxxxxx ("Xxxxxx"), Xxxxxxx X. Xxxxxx ("Xxxxxx") (the "Key
Senior Executives"), and the Investors listed on the signature pages of this
Agreement (such purchasers are collectively referred to herein as the "Investor
Group" and, individually, as an "Investor.")
WITNESSETH:
WHEREAS, each member of the Investor Group is a party to the
Stockholders' Agreement dated March 25, 1999, among the Company, certain
officers of the Company including Dietler and Xxxxx (the "1999 Officers") and
the Investor Group (the "1999 Stockholders' Agreement") relating to the shares
of the Company's Series A Convertible Preferred Stock, par value $.01 per share
(the "Series A Preferred Stock"), and the Company's Warrants (the "Warrants"),
each to purchase three-fifths of one share of the Company's Common Stock, par
value $.01 per share (the "Common Stock"), held by such Investor Group and the
shares of Common Stock into which such shares of Series A Preferred Stock and
the Warrants are convertible;
WHEREAS, pursuant to the terms of the Preferred Stock Recapitalization
Agreement between the Company and each of the Investors, the Company has agreed
to recapitalize (the "Recapitalization") 157,715.2402 of the outstanding shares
of the Series A Preferred Stock and 9,841,493 of the outstanding Warrants into
an aggregate of (i) 11,902,705 shares of the Company's Common Stock, (ii)
$21,303,000 in cash (including accrued but unpaid dividends on all the Series A
Preferred Stock through June 30, 2002), and (iii) $72,890,000 liquidation value
of the Company's Series B Convertible Preferred Stock, par value $.01 per share
(the "Series B Preferred Stock"), and the Investors have agreed to participate
in the Recapitalization on the terms and subject to the conditions set forth
therein;
WHEREAS, certain of the Investors will continue to hold shares of the
Series A Preferred Stock and Warrants;
WHEREAS, the Key Senior Executives own approximately 8.21% of the
outstanding shares of the Company's Common Stock (such shares, along with any
shares of Common Stock, that the Key Senior Executives may subsequently acquire,
the "Shares");
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WHEREAS, it is a condition precedent to the Company's and the
Investors' respective obligations to consummate the transactions contemplated by
the Preferred Stock Recapitalization Agreement that the parties hereto shall
have entered into this Agreement; and
WHEREAS, each of Dietler, Anderson, Logan, Dickey, and Xxxxxx, 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. Termination of 1999 Stockholders' Agreement
The 1999 Stockholders' Agreement is hereby terminated and each Investor
agrees that the rights of the Investors under the 1999 Stockholders' Agreement
are hereby terminated, and releases (i) the Company and (ii) each of the 1999
Officers from all obligations under the 1999 Stockholders' Agreement.
2. 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 3 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 2(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
fifteen (15) 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 and Series B Preferred Stock owned by
each Investor have been converted into shares of Common Stock at the then
current conversion price per share under Section 5 of the TransMontaigne Inc.
Certificate of Designations of Series A Convertible Preferred Stock or Section 5
of the TransMontaigne Inc. Certificate of Designations of Series B Convertible
Preferred Stock, as applicable, and all Warrants owned by each Investor have
been exercised at the then current exercise price); 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
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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, Series B Preferred Stock, Warrants
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 or Series B Preferred
Stock or Warrants 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 and Series B Preferred Stock or exercise such Warrants, as applicable,
into or for 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 2.
(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 2 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 2 hereof is unduly burdensome then the Investors and such Key
Senior Executive shall agree on terms for that particular transaction that carry
out the intent of this agreement.
3. Limitation on Transfers
(a) So long as at least 50% (on an individual or aggregate basis) of the
Investor Shares beneficially owned by the Investors or their Affiliates as
of the date hereof (calculated based on total number of shares of Common
Stock into or for which such Investor Shares are convertible or exercisable
on the date hereof) remain beneficially owned by such Investors or
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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 in excess of thirty five
percent (35%) of the aggregate number of Shares (calculated by treating all
options held by such Key Senior Executive to purchase shares of Common
Stock as exercised) held by such Key Senior Executive as of June 30, 2002,
and shares acquired subsequent to such date, as adjusted to reflect any
stock split, stock dividend, recapitalization or similar event after June
30, 2002 (other than in compliance with Section 2 hereof or in a
transaction open to all holders of Common Stock).
(b) Any attempt to Transfer or any purported Transfer of the Shares 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.
(c) On September 30, 2002 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).
(d) 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.
4. 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 2(a)
hereof.
"Affiliate" shall have the meaning given it in Section 3 of the
Preferred Stock Recapitalization Agreement.
"Xxxxxxxx" shall have the meaning set forth in the first paragraph
hereof.
"Buyer" shall have the meaning set forth in Section 2(a) hereof.
"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.
"Xxxxxx" shall have the meaning set for in the first paragraph hereof.
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"Dietler" shall have the meaning set forth in the first paragraph
hereof.
"Inclusion Notice" shall have the meaning set forth in Section 2(a)
hereof.
"Inclusion Offer" shall have the meaning set forth in Section 2(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 B Preferred Stock, Series A
Preferred Stock and Warrants and Common Stock obtained as a result of conversion
of Series B Preferred Stock and Series A Preferred Stock or exercise of the
Warrants, owned by the Investor Group.
"Xxxxxx" shall have the meaning set forth in the first paragraph
hereof.
"Xxxxx" shall have the meaning set forth in the first paragraph hereof.
"1999 Officers" has the meaning set forth in the first WHEREAS clause
hereof.
"1999 Stockholders' Agreement" has the meaning set forth in the first
WHEREAS clause 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.
"Series B Preferred Stock" shall have the meaning set forth in the
second WHEREAS clause hereof.
"Shares" shall have the meaning set forth in the fourth 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 2(a)
hereof.
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5. 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 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 Preferred Stock Recapitalization Agreement
(ii) If to the Company, to:
TransMontaigne Inc.
000 Xxxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attn: Xxxx X. Xxxxxxx
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(iii) If to Dietler, to:
TransMontaigne Inc.
000 Xxxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attn: Cortlandt X. Xxxxxxx
(iv) If to Xxxxxxxx, to:
TransMontaigne Inc.
000 Xxxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxxx
(v) If to Xxxxx, to:
TransMontaigne Inc.
000 Xxxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. Xxxxx, Xx.
(vi) If to Xxxxxx, to:
TransMontaigne Inc.
000 Xxxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxx
(vii) If to Xxxxxx, to:
TransMontaigne Inc.
000 Xxxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxx
All such notices, requests and other communications will (x) if delivered
personally to the address as provided in this Section 5(d), be deemed given upon
delivery, (y) if delivered by facsimile transmission to the facsimile number as
provided in this Section 5(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 5(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
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communication is received by any other Person to whom a copy of such notice is
to be delivered pursuant to this Section 5(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.
(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 June 30, 2002),
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.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as
of the date first written above.
TRANSMONTAIGNE INC.
By:
-------------------
Name:
Title:
KEY SENIOR EXECUTIVES
----------------------
Cortlandt X. Xxxxxxx
----------------------
Xxxxxx X. Xxxxxxxx
----------------------
Xxxxxx X. Xxxxx, Xx.
----------------------
Xxxxxxx X. Xxxxxx
----------------------
Xxxxxxx X. Xxxxxx
[Stockholders' Agreement Signature Page]
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INVESTORS
FIRST RESERVE FUND VII, LIMITED
PARTNERSHIP
By: FIRST RESERVE GP VII, L.P.
its general partner
By: FIRST RESERVE CORPORATION
its general partner
By:
-----------------------
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:
-----------------------
Name:
Title:
[Stockholders' Agreement Signature Page]
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VENCAP HOLDINGS (1987) PTE LTD
By:
----------------------------
Name:
Title:
[Stockholders' Agreement Signature Page]
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XXXXXXX US DISCOVERY FUND III, L.P.
By: XXXXXXX US DISCOVERY
PARTNERS, L.P.,
its general partner
By: XXXXXXX US DISCOVERY, LLC.
its general partner
By:
-----------------------
Name:
Title:
XXXXXXX US DISCOVERY OFFSHORE FUND
III, L.P.
By: XXXXXXX US DISCOVERY
PARTNERS, L.P.,
its general partner
By: XXXXXXX US DISCOVERY, LLC.
its general partner
By:
-----------------------
Name:
Title:
[Stockholders' Agreement Signature Page]
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XXXXXXXX TRUSTEES ET AL FBO
XXXXXX X. XXXXXXXX, XX. DTD 12/22/97
By:
-------------------------
Name:
Title:
XXXXXXXX TRUSTEES ET AL FBO
XXXXXXX X. XXXXXXXX DTD 12/22/97
By:
-------------------------
Name:
Title:
XXXXXXXX TRUSTEES ET AL FBO
XXXXXX X. XXXXXXXX XX DTD 12/22/97
By:
-------------------------
Name:
Title:
XXXXXXXX TRUSTEES ET AL FBO
XXXXXXX X. XXXXXXXX DTD 12/22/97
By:
-------------------------
Name:
Title:
[Stockholders' Agreement Signature Page]
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CODAN TRUSTEES ET AL FBO
XXXXXXXXXXX X. XXXXXXXX DTD 12/22/97
By:
-------------------------
Name:
Title:
CODAN TRUSTEES ET AL FBO
XXXX X. XXXXXXXX DTD 12/22/97
By:
-------------------------
Name:
Title:
CODAN TRUSTEES ET AL FBO
XXXXXX X. XXXXXXXXXX DTD 12/22/97
By:
-------------------------
Name:
Title:
[Stockholders' Agreement Signature Page]
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YORKTOWN ENERGY PARTNERS III, L.P.
By: YORKTOWN III COMPANY, L.L.C.,
its general partner
By:
-------------------------
Name:
Title:
YORKTOWN PARTNERS, L.L.C., as agent
By:
-------------------------
Name:
Title:
TICONDEROGA E-SERVICES FUND I, LP,
By:
-------------------------
Name:
Title:
[Stockholders' Agreement Signature Page]
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CFE, INC.
By:
-------------------------
Name:
Title:
[Stockholders' Agreement Signature Page]
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VESTAR CAPITAL PARTNERS III, L.P.
By: Vestar Associates III, L.P.,
its general partner
By: Vestar Associates Corporation III,
its general partner
By:
-------------------------
Name:
Title:
[Stockholders' Agreement Signature Page]
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