EXHIBIT 10.9
EXECUTION COPY
REGISTRATION RIGHTS AGREEMENT dated as of
October 30, 1998, between TransMontaigne Inc., a
Delaware corporation (the "Company"), and Louis
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Dreyfus Corporation, a New York corporation
("LDC").
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WHEREAS, the Company and LDC have entered into a Stock Purchase
Agreement dated as of September 13, 1998 (the "Stock Purchase Agreement"),
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pursuant to which the Company has agreed to purchase from LDC, and LDC has
agreed to sell to the Company, all of the issued and outstanding shares of
common stock, par value $1.00 per share, of ▇▇▇▇▇ ▇▇▇▇▇▇▇ Energy Corp. ("LDEC"),
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a Delaware corporation and a wholly owned subsidiary of LDC (the "Stock
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Purchase");
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WHEREAS, a portion of the purchase price payable by the Company to LDC
in connection with the Stock Purchase consists of shares (the "LDC Shares") of
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common stock, par value $.01 per share, of the Company (the "Common Stock");
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WHEREAS, pursuant to the Stock Purchase Agreement, the Company has
agreed to enter into this Agreement to, among other things, grant LDC (and any
Permitted Affiliate of LDC (as defined below) to whom LDC transfers any portion
of the LDC Shares) registration rights in respect of the LDC Shares
substantially comparable to the rights set forth in the Registration Rights
Agreement dated as of April 17, 1996 (the "Institutional Investor Registration
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Rights Agreement") by and among the Company and the Institutional Investors
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identified therein (the "Institutional Investors").
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NOW, THEREFORE, in consideration of the aforesaid and the mutual
promises hereinafter made, the parties hereto agree as follows:
ARTICLE I
Definitions
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SECTION 1.1. Definitions. The following terms, as used herein, shall
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have the following meanings:
"Advice" has the meaning set forth in Section 2.3.
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"Affiliate" means, with respect to any specified person, any other
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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
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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
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correlative to the foregoing.
"Board" means the Board of Directors of the Company.
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"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
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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
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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
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Agreement.
"Common Stock Equivalent" means any securities of any person
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convertible into or exchangeable or exercisable for Common Stock (whether at the
option of such person or of the holder of such securities).
"Company" has the meaning set forth in the preamble to this Agreement.
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"Covered Employees" means those employees of LDEC who are to receive
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an award of Employee Shares (as defined below).
"Demand Registration" has the meaning set forth in Section 2.2.1.
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"Employee Shares" means that portion of the LDC Shares (consisting of
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148,920 shares) to be distributed to the Covered Employees immediately
following, and in connection with, the closing of the Stock Purchase.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
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"Institutional Investor Demand Registration" has the meaning set forth
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in Section 2.2.1.
"Institutional Investor Notice" has the meaning set forth in Section
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2.2.1.
"Institutional Investor Registration Rights Agreement" has the meaning
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set forth in the recitals to this Agreement.
"Institutional Investors" has the meaning set forth in the recitals to
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this Agreement.
"LDC" has the meaning set forth in the preamble to this Agreement.
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"LDC Demand Registration" has the meaning set forth in Section 2.2.1.
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"LDC Holders" has the meaning set forth in Section 2.1.1.
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"LDC Notice" has the meaning set forth in Section 2.2.1.
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"LDC Shares" has the meaning set forth in the recitals to this
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Agreement.
"LDEC" has the meaning set forth in the recitals to this Agreement.
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"1933 Act" means the Securities Act of 1933, as amended.
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"Permitted Affiliate of LDC" means any entity that is and continues to
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be at least 80% owned, directly or indirectly, by S.A. ▇▇▇▇▇ ▇▇▇▇▇▇▇ et Cie.
"Permitted Affiliate Section 3.1 Agreement" has the meaning set forth
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in Section 3.1.
"person" means any individual, corporation, partnership, joint
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venture, association, joint-stock company, trust, unincorporated organization or
any other entity or organization, including a government, a political
subdivision or an agency or instrumentality thereof.
"Piggyback Registration" has the meaning set forth in Section 2.1.1.
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"Registration" has the meaning set forth in Section 2.3.
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"Registrable Securities" means any shares of Common Stock acquired in
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connection with the Stock Purchase and owned by LDC or a Permitted Affiliate of
LDC and 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
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"Restricted Security" until such time as such share (i) has been effectively
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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.
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"Request Notice" has the meaning set forth in Section 2.2.1.
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"Share Transfer" has the meaning set forth in Section 3.1.
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"Shelf Registration" has the meaning set forth in Section 2.2.1.
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"Stock Purchase" has the meaning set forth in the recitals to this
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Agreement.
"Stock Purchase Agreement" has the meaning set forth in the recitals
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to this Agreement.
"Stop Order" has the meaning set forth in Section 2.2.3.
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ARTICLE II
Registration and Related Rights
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SECTION 2.1. Company Registration.
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2.1.1. Right to Piggyback on Company Registration of Common Stock.
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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 LDC and each Permitted Affiliate
of LDC then owning Registrable Securities (collectively, the "LDC Holders")
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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 LDC Holder wishing to register all or any
portion of such LDC Holder's Registrable Securities pursuant to such proposed
registration (a "Piggyback Registration") must give written notice to the
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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
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set forth in Section 2.1.3, upon receipt of such written request of any such LDC
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 LDC Holders. Notwithstanding the fact that a
Piggyback Registration requested pursuant to this Section 2.1 involves an
underwritten public offering, any LDC 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.
2.1.2. Selection of Underwriters. If the Company in its sole
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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
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underwriter or underwriters of a Piggyback
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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 LDC Holders and (y) 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 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 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
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LDC Holder or (y) any Institutional Investor pursuant to the Institutional
Investor Registration Rights Agreement and (iii) third, pro rata among any other
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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 LDC Holders and the Institutional Investors, or in such
other proportions as shall mutually be agreed to among the LDC Holders and the
Institutional Investors.
SECTION 2.2. Demand Registration Rights.
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2.2.1. Right to Demand. Subject to the following sentence, if, at
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any time on or after December 31, 1999, any one or more of the LDC 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 LDC 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
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under and in accordance with the provisions of the 1933 Act of all or part of
the Registrable Securities then owned by such LDC Holder or LDC Holders (an "LDC
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Demand Registration"), the Company shall thereupon, as expeditiously as
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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
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which such request is made shall represent not less than five percent (5%) of
the then outstanding Common Stock and Common Stock Equivalents. Notwithstanding
the foregoing, the LDC 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 an LDC 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 LDC Holders have not
previously submitted a Request Notice to the Company that resulted in an
effective LDC Demand Registration under the terms of this Agreement, (ii) the
Registrable Securities held by the LDC 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 LDC 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 LDC 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 LDC Holders. The LDC Holders acknowledge that,
within 10 days after receipt of such Request Notice, the Company will serve
written notice (the "Institutional Investor Notice") of such
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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, subject to the pro rata allocations set
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forth in Section 2.2.4, the Company will include in such LDC Demand Registration
all such shares of Common Stock 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 Institutional Investor Notice.
The Institutional Investors have rights to demand registrations under
the Institutional Investor Registration Rights Agreement substantially
comparable to those of the LDC 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 any one or more of the
Institutional Investors pursuant to the Institutional Investor Registration
Rights Agreement (an "Institutional Investor Demand Registration", with the
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terms "Institutional Investor Demand Registration" and "LDC Demand Registration"
being collectively referred to herein as a "Demand Registration"), serve written
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notice (the "LDC Notice") of such registration request to all LDC Holders
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holding Registrable Securities and, subject to the pro rata allocations set
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forth in Section 2.2.4, the Company shall include in such Institutional 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 LDC Notice. The Company represents that the
Institutional Investors have agreed to the LDC Holders' right to participate in
Institutional Investor Demand Registrations on the terms and conditions set
forth in this Section 2.2.
All LDC 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 LDC Holders shall collectively be entitled to request
or participate in an 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
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Registration")) pursuant to which a
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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 LDC Demand
Registration may be requested by any LDC Holder in any 12-month period;
provided, however, that if, following the effective date of any registration
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statement filed pursuant to a Demand Registration, any LDC 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 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 LDC Holders had the right to include
their Registrable Securities, either as a Piggyback Registration or pursuant to
the LDC Holders' participation rights in respect of 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
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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 LDC Demand Registration.
The Company shall have the same rights to piggyback on an LDC Demand
Registration as an LDC Holder would have in a Piggyback Registration permitted
under Section 2.1.
2.2.2. Selection of Underwriters. If a proposed LDC Demand
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Registration involves either a firm or best efforts underwritten offering, the
LDC Holder(s) giving the Request Notice with respect to such LDC 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 LDC Demand Registration.
2.2.3. Effective Registration Statement. A registration requested
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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
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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 SEC or other governmental agency or court (collectively, a "Stop Order"),
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such registration shall be deemed not to have been effected. Notwithstanding
the preceding sentence, if any such Stop Order is rescinded, the 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
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or underwriters of a Demand Registration initiated under this 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
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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
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Registrable Securities of the LDC Holders who have made a request to be included
in such Demand Registration and (y) shares of Common Stock held by Institutional
Investors who have made a request to be included in such Demand Registration and
(ii) second, pro rata among any other shares of Common Stock proposed to be
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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 Institutional Investors. As evidenced by the
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Amendment and Waiver dated as of October 30, 1998, entered into by and between
the Company and the Institutional Investors (a copy of which is attached hereto
as Annex A), the Company represents that the Institutional Investors have
approved of the Company's entering into of this Agreement and the granting to
the LDC 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
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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, the terms of this Agreement shall be deemed amended or
supplemented to the extent necessary to provide the LDC 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 LDC Holders
pursuant to this Agreement.
SECTION 2.3. Registration Procedures. It shall be a condition
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precedent to the obligations of the Company and any underwriter or underwriters
to take any action pursuant to this Article II that the LDC Holders requesting
inclusion in any Piggyback Registration or Demand
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Registration (collectively referred to as a "Registration") furnish to the
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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 LDC 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,
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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 LDC
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
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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
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 LDC 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 LDC Holder
or underwriter or underwriters, if any, may request in order to facilitate the
disposition of the securities being sold by any such LDC Holder (it being
understood that the Company consents to the use of the prospectus and any
amendment or supplement thereto by any such LDC 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 LDC 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 LDC Holders (a reasonable
number of such amended and supplemented
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prospectuses having been delivered to the LDC 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;
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 LDC Holder,
promptly incorporate in a prospectus supplement or post-effective amendment such
information as the managing underwriter or underwriters or such LDC Holder
reasonably requests to be included therein, including, without limitation, with
respect to the number of shares being sold by such LDC 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 LDC 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 LDC 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
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offer and sale under the securities or blue sky laws of each state and other
jurisdiction of the United States as such LDC 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 LDC Holders or the underwriters
may reasonably request in order to expedite or facilitate the disposition of
such Registrable Securities;
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 LDC 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 LDC Holder, underwriter, attorney, accountant
or agent in connection with such registration statement;
2.3.13. Cooperate with such LDC Holders and the managing underwriter
or underwriters, if any, to facilitate
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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 LDC 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 LDC 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 LDC 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 LDC 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 LDC
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 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
18
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 LDC
Holders and printing costs) and 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); 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 an LDC
Holder.
SECTION 2.5. Indemnification and Contribution.
---------------------------------
19
2.5.1. Indemnification by the Company. The Company agrees to
-------------------------------
indemnify and hold harmless each LDC Holder, its officers, directors and agents
and each person who controls (within the meaning of the 1933 Act and the
Exchange Act) such LDC 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 LDC 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 LDC Holder furnished in writing to the Company by such LDC 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 LDC
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 LDC 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 LDC Holders.
2.5.2. Indemnification by LDC. In connection with any Registration
-----------------------
in which an LDC Holder is participating, such LDC Holder shall furnish to the
Company in writing such information and affidavits with respect to such LDC
Holder as the Company may reasonably request for use in connection with any
registration statement or prospectus and LDC agrees 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
20
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 LDC Holder furnished in writing to the Company by such LDC Holder
expressly for use therein; provided, however, that the amount recoverable by the
-------- -------
Company from LDC under this indemnification provision shall not exceed the
amount of net proceeds received by all LDC 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 LDC (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
21
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, 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 LDC, any contribution pursuant to this Section 2.5.4
shall be limited to the amount of net proceeds received by all LDC Holders 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 LDC 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 an LDC Holder, the Company will furnish the
requesting LDC Holder with such information as may be necessary to enable such
LDC Holder to effect sales pursuant to Rule 144A. Notwithstanding the
foregoing, the Company may deregister any class of its equity securities under
Section 12 of the Exchange Act or suspend its duty to file reports with respect
to any class
22
of its securities pursuant to Section 15(d) of the Exchange Act if it is then
permitted to do so pursuant to the Exchange Act and rules and regulations
thereunder.
SECTION 2.7. Restrictions on Public Sale by Holder of Securities.
----------------------------------------------------
2.7.1. To the extent not inconsistent with applicable law, any LDC
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.
2.7.2. Each LDC 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 LDC
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 LDC Holder may
-------------------------------
participate in any Registration hereunder unless such LDC Holder (i) agrees to
sell such LDC 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
23
agreements and other documents customarily required under the terms of such
underwriting arrangements.
SECTION 2.9. Remedies. LDC 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 LDC for the reasonable costs of the expenses for counsel
for LDC incurred in connection with such proceeding.
ARTICLE III
Restrictions on Transfer of
---------------------------
Common Stock by LDC; Standstill
-------------------------------
24
SECTION 3.1. Restrictions on Transfer. Prior to December 31, 1999,
-------------------------
LDC shall not sell, assign, transfer, pledge, hypothecate, deposit in a voting
trust or otherwise dispose of any portion of the LDC Shares (any such
disposition, a "Share Transfer"), other than (x) to a Covered Employee in
--------------
connection with the distribution of Bonus Shares or (y) to a Permitted Affiliate
of LDC that has agreed in writing (the "Permitted Affiliate Section 3.1
-------------------------------
Agreement") to be bound by the terms and provisions of this Section 3.1 to the
---------
same extent that LDC would be bound if it beneficially owned the shares of
Common Stock transferred to such Permitted Affiliate of LDC and acknowledging
the last sentence of Section 4.4. LDC shall promptly notify the Company of any
Share Transfer to a Permitted Affiliate of LDC, which notification shall include
a Permitted Affiliate Section 3.1 Agreement executed by each Permitted Affiliate
of LDC to whom any shares of Common Stock have been transferred. If any
Permitted Affiliate of LDC which owns any shares of Common Stock ceases for any
reason to be a Permitted Affiliate of LDC, LDC shall promptly thereupon cause
such former Permitted Affiliate of LDC to transfer all shares of Common Stock
held by it to LDC or a Permitted Affiliate of LDC, and in no event shall any
such former Permitted Affiliate of LDC effect any Share Transfer in a manner
that would be prohibited by this Section 3.1 if such Share Transfer were
effected by LDC. On or after December 31, 1999, LDC shall not, and shall not
permit any of its Affiliates to, directly or indirectly, effect any Share
Transfer (other than to a Permitted Affiliate of LDC) in a manner that would
result in the acquisition by any other person to the extent that, to LDC's
knowledge after due inquiry (it being understood that no such inquiry is
required in respect of a non-prearranged sale over a securities exchange or
other transactions where it is not possible to determine who the acquiror is, or
in connection with a registered public offering where the Company controls the
placement of shares), after giving effect to such Share Transfer, such acquiring
person would hold in excess of five percent (5%) of the total voting power of
all voting securities of the Company.
SECTION 3.2. Standstill. For a period of five years from the Closing
-----------
Date (as such term is defined in Section 2(a)(i) of the Stock Purchase
Agreement), LDC shall not, and shall not permit any of its Affiliates to,
directly
25
or indirectly, (i) without the prior written consent of the Company, by purchase
or otherwise, acquire, agree to acquire or offer to acquire beneficial ownership
of any voting securities of the Company or direct or indirect rights or options
to acquire such beneficial ownership (including, without limitation, any voting
trust certificates representing such securities) if such acquisition would
result in the aggregate beneficial ownership by LDC and all Affiliates of LDC of
voting securities having voting power equal to or in excess of 15% of the then
aggregate voting power of the Company, (ii) enter, propose to enter into,
solicit or support any merger or business combination or change of control or
other similar transaction involving the Company or any of its subsidiaries, or
purchase, acquire, propose to purchase or acquire or solicit or support the
purchase or acquisition of any portion of the business or assets of the Company
or any of its subsidiaries other than in the ordinary course of business, (iii)
initiate or propose any matter for submission to a vote of the shareholders of
the Company or make, or in any way participate in, any "solicitation" of
"proxies" (as such terms are used in the proxy rules promulgated by the SEC
under the Exchange Act) to vote, or seek to advise or influence any person with
respect to the voting of, the Common Stock or any other voting securities of the
Company or request or take any action to obtain any list of shareholders of the
Company for such purposes, (iv) form, join or in any way participate in any
group (other than a group composed solely of LDC and its Affiliates) formed for
the purpose of acquiring, holding, voting or disposing of or taking any other
action with respect to the Common Stock or any other voting securities of the
Company that would be required under Section 13(d) of the Exchange Act to file a
Schedule 13D with respect to such voting securities, (v) deposit any shares of
Common Stock or any other voting securities of the Company in a voting trust or
enter into any voting agreement or arrangement with respect thereto, (vi) seek
representation on the Board (other than as contemplated by Section 7(b) of the
Stock Purchase Agreement), the removal of any directors from the Board or a
change in the size or composition of the Board, (vii) make any request to amend
or waive any provision of this Section 3.2, which request would require public
disclosure under applicable law, rule or regulation, (viii) disclose any intent,
purpose, plan, arrangement or proposal
26
inconsistent with the foregoing (including any such intent, purpose, plan,
arrangement or proposal that is conditioned on or would require the waiver,
amendment, nullification or invalidation of any of the foregoing) or take any
action that would require public disclosure of any such intent, purpose, plan,
arrangement or proposal, (ix) take any action challenging the validity or
enforceability of the foregoing, (x) assist, advise, encourage or negotiate with
any person with respect to, or seek to do, any of the foregoing or (xi) take, or
solicit, propose to or agree with any other person to take, any similar actions
designed to influence the management or control of the Company.
Nothing in this Section 3.2 shall (i) prohibit or restrict LDC or its
Affiliates from responding to any inquiries from any shareholders of the Company
as to LDC's or any such Affiliate's intention with respect to the voting of
shares of Common Stock or any other voting securities of the Company
beneficially owned by LDC or such Affiliate so long as such response is
consistent with the terms of this Agreement, (ii) prohibit the purchase or other
acquisition of beneficial ownership of Common Stock or other voting securities
of the Company in compliance with Section 3.2(i) or (iii) restrict the right of
any director on the Board designated by LDC as contemplated by Section 7(b) of
the Stock Purchase Agreement to vote on any matter as such designee believes
appropriate in light of his duties as a director of the Company or the manner in
which such designee may participate in his capacity as a director of the Company
in deliberations or discussions at meetings of the Board or as a member of any
committee thereof.
ARTICLE IV
Miscellaneous
-------------
27
SECTION 4.1. 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,
TransMontaigne Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
President and Chief Operating
Officer
with copies to:
TransMontaigne Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Senior Vice President, General
Counsel and Corporate Secretary
Cravath, Swaine & ▇▇▇▇▇
Worldwide Plaza
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.; and
28
(ii) if to LDC,
▇▇▇▇▇ ▇▇▇▇▇▇▇ Corporation
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
President
with copies to:
▇▇▇▇▇ ▇▇▇▇▇▇▇ Corporation
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
General Counsel; and
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Esq.
SECTION 4.2. 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 permitted 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 LDC 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
29
understandings, both oral and written (including those contained in the Stock
Purchase Agreement), between the parties hereto relating to the subject matter
hereof.
SECTION 4.3. Waiver. Each party hereto may, by written notice to the
-------
other party (i) extend the time for the performance of any of the obligations or
other actions of such other party under this Agreement; (ii) waive compliance
with any of the conditions or covenants of such other party contained in this
Agreement; and (iii) waive or modify performance of any of the obligations of
such other party under this Agreement. Except as provided in the 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 either party hereto of a breach of any provision hereof or any
preceding or succeeding breach nor the failure by either 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 4.4. Amendments. No amendment, modification or waiver in
-----------
respect of this Agreement shall be effective unless it shall be in writing and
signed by both parties hereto. Any such amendment, modification or waiver in
respect of this Agreement executed by or on behalf of LDC shall bind each other
LDC Holder, if any, to the terms and conditions thereof.
SECTION 4.5. 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 LDC (other than, in the case of LDC, to a
Permitted Affiliate of LDC in connection with a transfer of a portion of the LDC
Shares).
SECTION 4.6. 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
30
State, without regard to the conflicts of law principles of such State.
SECTION 4.7. Attorney Fees. A party in breach of this Agreement
--------------
shall, on demand, indemnify and hold harmless the other party for and against
all reasonable out-of-pocket expenses, including legal fees, incurred by such
other party by reason of the enforcement and protection of its rights under this
Agreement. The payment of such expenses is in addition to any other relief to
which such other party may be entitled.
SECTION 4.8. 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 4.9. 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 party.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date first written above.
TRANSMONTAIGNE INC.,
by /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------
Name:
Title:
▇▇▇▇▇ ▇▇▇▇▇▇▇ CORPORATION,
by /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------
Name:
Title:
ANNEX A
[Amendment and Waiver to Institutional Investor Registration Rights Agreement]
[Included as Exhibit 10.7]
