SCHEDULE 13D
(Rule 13d-101)
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
Under the Securities Exchange Act of 1934
Amendment No. 8
TransMontaigne, Inc.
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(Name of Issuer)
Common Stock
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(Title of Class of Securities)
89393410
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(CUSIP Number)
Thomas R. Denison - First Reserve Corporation, One Lafayette Place, Greenwich,
CT 06830, (203) 625-2520
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(Name, Address and Telephone Number of Person Authorized to Receive Notices and
Communications)
October 9, 2003
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(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Sections 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check
the following box following box. [ ]
Note: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See Rule 13d-7(b) for other
parties to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
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CUSIP No. 89393410 SCHEDULE 13D Page 2 of 12 Pages
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1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
First Reserve Corporation
I.R.S. No.: 06-1210123
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2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [X]
(b) [ ]
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3. SEC USE ONLY
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4. SOURCE OF FUNDS*
N/A
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5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) [ ]
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6. CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
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7. SOLE VOTING POWER
NUMBER OF 0
SHARES -----------------------------------------------------
BENEFICIALLY 8. SHARED VOTING POWER
OWNED BY
EACH 5,249,366
REPORTING -----------------------------------------------------
PERSON 9. SOLE DISPOSITIVE POWER
WITH
0
-----------------------------------------------------
10. SHARED DISPOSITIVE POWER
5,249,366
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11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
5,249,366
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12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
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13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
12.9%
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14. TYPE OF REPORTING PERSON*
CO
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*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
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CUSIP No. 89393410 SCHEDULE 13D Page 3 of 12 Pages
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1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
First Reserve Fund VII, Limited Partnership
I.R.S. No.: 06-1457408
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2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [X]
(b) [ ]
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3. SEC USE ONLY
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4. SOURCE OF FUNDS*
N/A
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5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) [ ]
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6. CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
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7. SOLE VOTING POWER
NUMBER OF 0
SHARES -----------------------------------------------------
BENEFICIALLY 8. SHARED VOTING POWER
OWNED BY
EACH 2,024,027
REPORTING -----------------------------------------------------
PERSON 9. SOLE DISPOSITIVE POWER
WITH
0
-----------------------------------------------------
10. SHARED DISPOSITIVE POWER
2,024,027
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11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,024,027
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12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
--------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
5.0%
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14. TYPE OF REPORTING PERSON*
PN
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*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
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CUSIP No. 89393410 SCHEDULE 13D Page 4 of 12 Pages
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1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
First Reserve Fund VIII, L.P.
I.R.S. No.: 06-1507364
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2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [X]
(b) [ ]
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3. SEC USE ONLY
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4. SOURCE OF FUNDS*
N/A
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5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) [ ]
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6. CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
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7. SOLE VOTING POWER
NUMBER OF 0
SHARES -----------------------------------------------------
BENEFICIALLY 8. SHARED VOTING POWER
OWNED BY
EACH 3,233,529
REPORTING -----------------------------------------------------
PERSON 9. SOLE DISPOSITIVE POWER
WITH
0
-----------------------------------------------------
10. SHARED DISPOSITIVE POWER
3,233,529
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11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,233,529
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12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
--------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
7.9%
--------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON*
PN
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*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
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CUSIP No. 89393410 SCHEDULE 13D Page 5 of 12 Pages
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1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
First Reserve GP VII, L.P.
I.R.S. No.: 06-1520256
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2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [X]
(b) [ ]
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3. SEC USE ONLY
--------------------------------------------------------------------------------
4. SOURCE OF FUNDS*
N/A
--------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) [ ]
--------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
--------------------------------------------------------------------------------
7. SOLE VOTING POWER
NUMBER OF 0
SHARES -----------------------------------------------------
BENEFICIALLY 8. SHARED VOTING POWER
OWNED BY
EACH 2,024,027
REPORTING -----------------------------------------------------
PERSON 9. SOLE DISPOSITIVE POWER
WITH
0
-----------------------------------------------------
10. SHARED DISPOSITIVE POWER
2,024,027
--------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,024,027
--------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
--------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
5.0%
--------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON*
PN
--------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
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CUSIP No. 89393410 SCHEDULE 13D Page 6 of 12 Pages
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1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
First Reserve GP VIII, L.P.
I.R.S. No.: 06-1507318
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2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [X]
(b) [ ]
--------------------------------------------------------------------------------
3. SEC USE ONLY
--------------------------------------------------------------------------------
4. SOURCE OF FUNDS*
N/A
--------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) [ ]
--------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
--------------------------------------------------------------------------------
7. SOLE VOTING POWER
NUMBER OF 0
SHARES -----------------------------------------------------
BENEFICIALLY 8. SHARED VOTING POWER
OWNED BY
EACH 3,233,529
REPORTING -----------------------------------------------------
PERSON 9. SOLE DISPOSITIVE POWER
WITH
0
-----------------------------------------------------
10. SHARED DISPOSITIVE POWER
3,233,529
--------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,233,529
--------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
--------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
7.9%
--------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON*
PN
--------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
This Amendment No. 8 to the statement on Schedule 13D (the
"Statement"), originally filed on June 4, 1996, is filed by First Reserve Fund
VII, Limited Partnership ("Fund VII"), First Reserve GP VII, L.P. ("GP VII"),
First Reserve Fund VIII, L.P. ("Fund VIII"), First Reserve GP VIII, L.P. ("GP
VIII"), and First Reserve Corporation ("First Reserve," and collectively, the
"Reporting Persons") and relates to the Common Stock, par value $0.01 per share
(the "Common Stock"), of TransMontaigne Inc., a Delaware corporation (the
"Issuer", the "Company" or "TransMontaigne"). That Schedule 13D is hereby
amended as set forth below.
ITEM 4. PURPOSE OF THE TRANSACTION.
Item 4 is hereby amended by adding the following:
On October 9, 2003, Fund VII and Fund VIII entered into a
Stock Purchase Agreement (the "Stock Purchase Agreement") with LB I Group Inc.
(the "Buyer"), pursuant to which Fund VII and Fund VIII agreed to sell to the
Buyer all of the shares of Series B Convertible Preferred Stock, par value $0.01
per share of TransMontaigne (the "Series B Preferred Stock") owned by each Fund.
The Buyer purchased the Series B Preferred Stock at a price of $920.00 per share
plus the cash amount of dividends that had accrued but remained unpaid as of the
closing date of the transaction. See Item 6 - "Stock Purchase Agreement".
Fund VII and Fund VIII entered into the Stock Purchase
Agreement for the purpose of liquidating their ownership of the Series B
Preferred Stock of the Issuer.
ITEM 5. INTERESTS IN SECURITIES OF THE ISSUER.
Item 5 is hereby amended and restated in its entirety as
follows:
(a) As of the closing of the Stock Purchase Agreement on
October 9, 2003, the Reporting Persons beneficially owned an aggregate of
5,249,366 shares of Common Stock, which constitutes beneficial ownership of
approximately 12.9% of the 40,675,530 shares of Common Stock outstanding as of
August 29, 2003, as reported by the Issuer.
NUMBER OF SHARES
BENEFICIALLY PERCENTAGE OF
REPORTING PARTY OWNED CLASS
First Reserve Corporation (1) 5,249,366 (2) 12.9%
Fund VII (1) 2,024,027 (3) 5.0%
Fund VIII (1) 3,233,529 (4) 7.9%
GP VII (1) 2,024,027 (3) 5.0%
GP VIII (1) 3,233,529 (4) 7.9%
(1) GP VII and GP VIII are the general partners of Fund VII and Fund
VIII, respectively, and may be deemed to beneficially own the shares of Common
Stock owned by Fund VII and
Page 7 of 12
Fund VIII. First Reserve, as the general partner of GP VII and GP VIII, may be
deemed to beneficially own all of the shares of Common Stock owned by all
Reporting Persons. Fund VII and GP VII each disclaim beneficial ownership of any
shares of Common Stock not held by Fund VII; Fund VIII and GP VIII each disclaim
beneficial ownership of any shares of Common Stock not held by Fund VIII.
(2) This includes 8,190 shares of Common Stock held by John A. Hill,
which may be deemed beneficially owned by each of Fund VII and Fund VIII.
(3) This includes 8,190 shares of Common Stock held by John A. Hill,
which may be deemed beneficially owned by Fund VII.
(4) This includes and 8,190 shares of Common Stock held by John A.
Hill, which may be deemed beneficially owned by Fund VIII.
(b) Each of Fund VII and Fund VIII shares with its general partner
the power to vote or to direct the vote of the shares directly held by it. GP
VII and GP VIII, in their roles as general partners of Fund VII and Fund VIII,
respectively, and First Reserve, in its role as general partner of GP VII and GP
VIII, share with each Fund the power to cause each Fund to dispose of or vote
the shares of Common Stock beneficially held by each Fund.
(c) Effective October 9, 2003, Fund VII and Fund VIII sold 12,345 and
19,750 shares of Series B Preferred Stock, respectively, to the Buyer,
constituting all of the shares of Series B Preferred Stock held by each Fund.
See Item 6 - "Stock Purchase Agreement".
(d) To the best knowledge of the Reporting Persons, no other person has
the right to receive, or the power to direct the receipt of dividends from, or
the power to direct the receipt of proceeds of the sale of the shares of Common
Stock owned by the Reporting Persons.
(e) Not applicable.
ITEM 6. CONTRACTS, ARRANGEMENT, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO
SECURITIES OF THE ISSUER.
Item 6 is hereby amended by adding the following:
STOCK PURCHASE AGREEMENT
On October 9, 2003, Fund VII and Fund VIII entered into a
Stock Purchase Agreement (the "Stock Purchase Agreement") with LB I Group Inc.
(the "Buyer"), pursuant to which (i) Fund VII agreed to sell all 12,345 of its
shares of Series B Convertible Preferred Stock, par value $0.01 per share of
TransMontaigne (the "Series B Preferred Stock") and (ii) Fund VIII agreed to
sell all 19,750 of its shares of Series B Preferred Stock to the Buyer. The
Buyer purchased the Series B Preferred Stock at a price of $920.00 per share
plus the cash amount of dividends that had accrued but remained unpaid as of the
closing date of the transaction. Fund VII and Fund
Page 8 of 12
VIII also agreed to assign to the Buyer their rights under the Stockholders'
Agreement, dated June 28, 2002, among the Company, various investors, and
certain employees of the Company, and the Amended and Restated Preferred Stock
Investor Registration Rights Agreement, dated June 28, 2002, among the Company
and various investors.
LETTER AGREEMENT
On October 9, 2003, First Reserve Fund VI, Limited Partnership
("Fund VI"), Fund VII, Fund VIII and TransMontaigne (the "Parties") entered into
a Letter Agreement (the "Letter Agreement"), pursuant to which the Parties
agreed to amend the Agreement to Elect Directors, dated April 17, 1996, as
amended (the "Director Agreement"), among the Parties to (i) remove Fund VI as a
First Reserve Investor, as defined in the Director Agreement, and (ii) to
provide that the First Reserve Investors will have the right to designate one
director to be elected to TransMontaigne's Board of Directors.
ITEM 7. EXHIBITS.
A. Stock Purchase Agreement, dated October 9, 2003
B. Letter Agreement, dated October 9, 2003
C. Joint Filing Agreement
Page 9 of 12
SIGNATURE
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this Statement is true,
complete and correct.
Dated: October 10, 2003.
FIRST RESERVE CORPORATION
By: /s/ Thomas R. Denison
--------------------------------------
Name: Thomas R. Denison
Title: Managing Director
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/ Thomas R. Denison
----------------------------------
Name: Thomas R. Denison
Title: Managing Director
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/ Thomas R. Denison
---------------------------------
Name: Thomas R. Denison
Title: Managing Director
Page 10 of 12
FIRST RESERVE GP VII, L.P.
By: First Reserve Corporation,
its General Partner
By: /s/ Thomas R. Denison
---------------------------------
Name: Thomas R. Denison
Title: Managing Director
FIRST RESERVE GP VIII, L.P.
By: First Reserve Corporation,
its General Partner
By: /s/ Thomas R. Denison
---------------------------------
Name: Thomas R. Denison
Title: Managing Director
Page 11 of 12
SCHEDULE 13D
EXHIBIT INDEX
EXHIBIT A Stock Purchase Agreement, dated October 9, 2003
EXHIBIT B Letter Agreement, dated October 9, 2003
EXHIBIT C Joint Filing Agreement
Page 12 of 12
EXHIBIT A
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "Agreement"), is made and
entered into as of this 9th day of October, 2003, by and among First Reserve
Fund VII, Limited Partnership, a Delaware limited partnership ("Fund VII") and
First Reserve Fund VIII, L.P., a Delaware limited partnership ("Fund VIII," and
with Fund VII, "Sellers"), on the one hand, and LB I Group Inc. ("Buyer"), on
the other hand.
WHEREAS, Fund VII is owner of 12,345 shares (the "Fund VII
Shares") of the Series B Convertible Preferred Stock, par value $0.01 per share
("Preferred Stock") of TransMontaigne Inc., a Delaware corporation (the
"Company"), as such Preferred Stock is described in the TransMontaigne Inc.
Certificate of Designations of Series B Convertible Preferred Stock, filed with
the Secretary of State of the State of Delaware on July 15, 2002 (the
"Certificate");
WHEREAS, Fund VIII is the owner of 19,750 shares of Preferred
Stock (the "Fund VIII Shares" and with the Fund VII Shares, the "Shares"); and
WHEREAS, Sellers desire to sell and transfer the Shares to
Buyer, and Buyer desires to purchase the Shares from Sellers;
NOW, THEREFORE, in consideration of the foregoing premises and
the mutual covenants herein contained, Sellers and Buyer agree as follows:
1. PURCHASE AND SALE OF SHARES.
1.1 CALCULATION OF PURCHASE PRICE. On the terms and conditions
set forth herein, at the Closing, the Sellers will sell the Shares to Buyer,
free and clear of all liens, pledges, encumbrances and claims whatsoever, and
Buyer will purchase the Shares from Sellers. The per share purchase price for
the Shares (the "Per Share Price") shall be equal to (a) $920.00 plus (b) the
cash amount of dividends on a Share that are accrued (whether or not declared)
in accordance with the terms of Section 2(a)(i) of the Certificate but that
remain unpaid as of the Closing Date.
1.2 CLOSING; PURCHASE AND SALE OF SHARES. The closing of the
transaction herein contemplated (the "Closing") shall take place at the offices
of First Reserve Corporation, One Lafayette Place, Greenwich, Connecticut 06830.
The Closing shall take place immediately following satisfaction or waiver of the
conditions set forth in Section 1.3 (the "Closing Date"). At the Closing,
Sellers shall transfer the Shares by delivering to Buyer certificates
representing the Shares, together with duly executed stock powers. At the
Closing, Buyer shall pay to Fund VII the sum equal to the Per Share Price
multiplied by the number of Fund VII Shares, and shall pay to Fund VIII the sum
equal to the Per Share Price multiplied by the number of Fund VIII Shares
(collectively with the amount paid to Fund VII, the "Purchase Price"). Assuming
the Closing Date is on the date hereof, the Per Share Price will be equal to
$921.50, resulting in total consideration of $11,375,917.50 payable to Fund VII,
and $18,199,625.00 payable to Fund VIII. Payments of the Purchase Price shall be
made in cash by wire transfers to accounts of Sellers specified in advance of
the Closing Date.
1.3 CONDITIONS TO CLOSING.
(a) The obligation of Buyer to consummate
the purchase and sale of the Shares as contemplated hereby is subject to the
satisfaction on or before the Closing Date of the conditions set forth below,
any of which may be waived in writing:
(i) no preliminary or permanent
injunction or other order of any court or other governmental
entity shall be in effect or threatened nor shall there be in
effect any statute, rule, regulation or executive order
promulgated or enacted by any governmental entity that, in any
such case, prevents the consummation of the transactions
contemplated by this Agreement; and no suit, action, claim,
proceeding or investigation before any governmental entity
shall have been commenced or threatened by any person or
entity seeking to prevent the sale of the Shares or asserting
that the sale of all or a portion of the Shares would be
unlawful;
(ii) the representations and
warranties of each Seller contained in this Agreement shall be
true and correct in all respects on and as of the Closing Date
with the same force and effect as though such representations
and warranties had been made or given on and as of the Closing
Date; and each and all of the agreements and covenants of each
Seller to be performed or complied with by it on or before the
Closing Date pursuant to this Agreement shall have been
performed or complied with in all respects;
(iii) the 15-day advance notice
provisions of Section 10(a) of the Certificate (the "Advance
Notice") shall have been satisfied by Sellers, or waived by
the Company pursuant to the Letter Agreement (defined below);
(iv) there shall not have been any
event or occurrence that has or is reasonably likely to have a
material adverse effect on the business, operations, assets,
properties, prospects or material customer relationships of
the Company;
(v) Buyer shall have received an
executed letter agreement from the Company, in the form
attached hereto as Exhibit A (the "Letter Agreement"), which
Letter Agreement shall contain, among other things, the
Company's agreement and acknowledgement (the "Recapitalization
Agreement") to the effect that for all purposes of the
Preferred Stock Recapitalization Agreements, dated June 27,
2002, between the Company and each of Fund VII and Fund VIII
(the "Preferred Stock Recapitalization Agreements," together
with the Stockholders' Agreement (defined below) and the
Registration Rights Agreement (defined below), the "Investor
Documents") (i) Buyer is the "Investor" and an "Institutional
Investor" (each as defined in the Preferred Stock
Recapitalization Agreements) and (ii) Buyer has all of the
rights of the "Investor" and an "Institutional Investor" under
the Preferred Stock Recapitalization Agreements, including
without limitation such rights provided in Sections 4, 7.1,
7.2, 7.3, 7.4, 7.5, 10, 11 and 13 thereof;
(vi) Seller shall have caused one of
its designees ("Seller Designee") serving as a member of the
board of directors of the Company (the "Board") to resign as a
member of the Board;
(vii) A majority of the members of
the Board, immediately after the resignation of Seller
Designee, shall have duly elected David Butters or such other
designee of Buyer as Buyer may determine to serve as a member
of the Board in accordance with the certificate of
incorporation and by-laws of the Company and such election
shall be evidenced by a consent in writing, which consent
shall have been delivered to Buyer;
2
(viii) Each party to the
Stockholders' Agreement, dated June 28, 2002, among the
Company, various investors, including Sellers, and certain
employees of the Company (the "Stockholders' Agreement"),
shall have executed and delivered to Buyer a written consent
(the "Stockholders' Consent") in a form satisfactory to Buyer
to the effect that such party agrees and acknowledges that for
all purposes of the Stockholders' Agreement (i) Buyer is an
"Investor" and a member of the "Investor Group" (each as
defined in the Stockholders' Agreement"), (ii) the Shares are
"Investor Shares" (as defined in the Stockholders' Agreement),
(iii) for purposes of the calculation required by Section 3 of
the Stockholders' Agreement, so long as the Shares are owned
beneficially by Buyer or its affiliates, the Shares shall be
treated as though they continued to be beneficially owned by
the original Investors (as defined in the Stockholders'
Agreement) and (iv) Buyer has all of the rights of the
"Investor" and a member of the "Investor Group" under the
Stockholders' Agreement, including without limitation such
rights provided in Sections 2 and 3 thereof; and
(ix) The Company and the holders of
two-thirds of the Registrable Securities (as defined in the
Amended and Restated Preferred Stock Investor Registration
Rights Agreement, dated June 28, 2002, among the Company and
various investors, including Fund VII and Fund VIII (the
"Registration Rights Agreement")), together with the requisite
parties to the Company's Amended and Restated Institutional
Investor Registration Rights Agreement, dated as of June 27,
2002, and the requisite parties to the Company's Amended and
Restated Louis Dryfus Corporation Registration Rights
Agreement, dated as of June 27, 2002, shall have executed and
delivered to Buyer a written consent (the "Registration Rights
Consent") in a form satisfactory to Buyer to the effect that
such party agrees and acknowledges that for all purposes of
the Registration Rights Agreement (i) Buyer is a "Series B
Investor" and a "Preferred Stock Investor" (each as defined in
the Registration Rights Agreement), (ii) the Shares are
"Registrable Securities" and "Series B Investor Shares" (each
as defined in the Registration Rights Agreement) and (iii)
Buyer has all of the rights of a "Series B Investor" and
"Preferred Stock Investor" under the Registration Rights
Agreement, including without limitation such rights provided
in Sections 2.1, 2.2, 2.3, 2.4 and 2.5 thereof.
(b) The obligation of Sellers to consummate
the purchase and sale of the Shares as contemplated hereby is subject to the
satisfaction on or before the Closing Date of the conditions set forth below,
any of which may be waived in writing:
(i) no preliminary or permanent
injunction or other order of any court or other governmental
entity shall be in effect or threatened nor shall there be in
effect any statute, rule, regulation or executive order
promulgated or enacted by any governmental entity that, in any
such case, prevents the consummation of the transactions
contemplated by this Agreement; and no suit, action, claim,
proceeding or investigation before any governmental entity
shall have been commenced or threatened by any person or
entity seeking to prevent the sale of the Shares or asserting
that the sale of all or a portion of the Shares would be
unlawful;
(ii) the representations and
warranties of Buyer contained in this Agreement shall be true
and correct in all material respects on and as of the Closing
Date with the same force and effect as though such
representations and warranties had been made or given on and
as of the Closing Date; and each and all of the agreements and
covenants of Buyer to be performed or complied with by it on
or before the Closing Date pursuant to this Agreement shall
have been performed or complied with in all respects; and
3
(iii) the Advance Notice shall have
been satisfied by Sellers, or waived by the Company.
1.4 TERMINATION. The obligations of the parties to close the
transactions contemplated by this Agreement may be terminated:
(a) at any time, by mutual consent of the Sellers and Buyer;
(b) by Buyer, if it is not in material breach of this
Agreement and any of the conditions set forth in 1.3(a) are incapable of being
satisfied prior to October 31, 2003 (the "Termination Date"); or
(c) by Buyer or Sellers, if the terminating party is not in
material breach of this Agreement and the Closing Date has not occurred by the
Termination Date.
If the obligation to close the transactions contemplated by
this Agreement is terminated pursuant to any provision of this Section 1.4, then
this Agreement shall forthwith become void and there shall not be any liability
or obligation with respect to the terminated provisions of this Agreement on the
part of the Sellers or Buyer except and to the extent such termination results
from the willful breach by a party of any of its representations, warranties or
agreements hereunder.
2. REPRESENTATIONS AND WARRANTIES.
2.1 BY SELLERS The Sellers represent and warrant to Buyer that:
(a) Power, Authority, Etc. Each Seller has the requisite power
and authority to execute, deliver and perform this Agreement and to consummate
the transactions contemplated herein. Each Seller's execution, delivery and
performance of this Agreement has been duly authorized by all requisite action.
This Agreement will, when executed and delivered by each Seller, constitute the
legal, valid and binding obligation of that Seller, enforceable in accordance
with its terms.
(b) Ownership of Shares. The Shares are validly issued and
outstanding, fully paid and non-assessable, free and clear of all liens,
proxies, taxes, rights (including rights of first offer and tag along rights) or
other encumbrances, and not subject to pre-emptive, participation or similar
rights of the stockholders of the Company or others. Each Seller is the record
and beneficial owner of the Shares attributed to it in the Recitals to this
Agreement and, upon Closing, each Seller is transferring the Shares attributed
to it in the Recitals to Buyer free and clear of all liens, proxies, taxes,
mortgages, pledges, security interests, restrictions, agreements with respect to
voting, prior assignments, encumbrances, options, rights (including rights of
first refusal and tag-along rights) and claims of any kind or nature whatsoever,
except as set forth in the Certificate, this Agreement, any Investor Document or
the Letter Agreement. Promptly following execution of this Agreement, Sellers
will deliver the Advance Notice to the Company.
(c) Conflicting Agreements and Charter Provisions. Neither the
execution and delivery of this Agreement nor the fulfillment of and compliance
with the terms and provisions hereof will conflict with or result in a breach of
the terms, conditions or provisions of, or give rise to a right of termination
under, or constitute a default under, or result in any violation of the
Certificate, either Seller's certificate of incorporation or by-laws (or any
similar document of corporate governance) or any mortgage, agreement,
instrument, order, judgment, decree, statute, law, rule or regulation to which
either Seller or any of its respective properties is subject.
4
(d) Governmental Consents, Etc. Except for any notification
that may be required under the Hart-Scott-Rodino Antitrust Improvements Act of
1976, as amended, neither Seller is required to obtain any consent, approval or
authorization of, or to make any declaration or filing with, any governmental
authority as a condition to or in connection with the valid execution, delivery
and performance of this Agreement, or the performance by the Sellers of their
obligations in respect thereof.
(e) Form 10-K. To the actual knowledge of the Sellers, the
information contained or incorporated by reference in the Company's Annual
Report on Form 10-K for the fiscal year ending June 30, 2003 (the "10-K"), as
filed with the Securities and Exchange Commission on September 29, 2003, was
true and correct in all material respects as of the date of its filing and, as
of such date, the 10-K did not contain an untrue statement of a material fact or
omit 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. The "actual knowledge" of Sellers shall mean the actual
conscious knowledge of Ben Guill or John Hill, and specifically excludes any
facts of which Messrs. Guill or Hill reasonably should have been aware, whether
as the result of due inquiry or otherwise.
Except as set forth above, Sellers are making no representations or warranties,
express or implied, of any nature regarding the Company, the Shares or the
transactions contemplated hereby.
2.2 BY BUYER.
(a) Buyer represents and warrants to Sellers that Buyer has
the requisite power and authority to execute, deliver and perform this Agreement
and to consummate the transactions contemplated herein, that Buyer's execution,
delivery and performance of this Agreement has been duly authorized by all
requisite action on the part of Buyer and that this Agreement will, when
executed and delivered by Buyer, constitute the legal, valid and binding
obligation of Buyer, enforceable against Buyer in accordance with its terms.
(b) Buyer represents and warrants to each Seller that Buyer is
an "accredited investor" as defined in the rules promulgated under Securities
Act of 1933, as amended (the "Act"), that the Shares are being acquired for
investment purposes and not with a view to, or in connection with, the sale or
distribution thereof, and that Buyer understands that the sale of the Shares to
Buyer has not been registered under the Act. Buyer acknowledges that upon
consummation of the transactions contemplated by this Agreement, the Shares will
be "restricted securities" within the meaning of Rule 144(a)(3) under the Act.
Buyer agrees that it will not sell or otherwise dispose of any Shares or equity
securities received upon the conversion thereof unless the sale or disposal of
such securities has been registered under the Act or such sale or disposal is
made pursuant to an applicable exemption from such registration requirements.
Buyer agrees that the certificate or certificates representing the Shares shall
bear a legend that such shares have not been registered under the Act or any
state securities laws and any additional legend required under any of the
Investor Documents assigned to Buyer. Buyer agrees that, in order to ensure
compliance with the restrictions referred to herein, the Company may issue
appropriate "stop transfer" instructions to its transfer agent, unless Buyer's
proposed transfer is in compliance with applicable securities laws, for purposes
of the foregoing. Buyer acknowledges that the Company shall not be required (i)
to transfer on its books any Shares that are or have been sold or otherwise
transferred in violation of any of the provisions of this Agreement or any
Investor Document to which Buyer is or becomes a party or (ii) to treat as owner
of such Shares or to accord the right to vote or pay dividends to any
transferee(s) to whom such Shares may have been so transferred.
5
(c) Buyer represents that it is a sophisticated investor and
has sufficient knowledge and information available to it with regard to any
investment decision in respect of the Shares.
3. SELLERS' COVENANTS AND AGREEMENTS . Each Seller hereby agrees and
acknowledges (x) that for all purposes of the Stockholders' Agreement (i) Buyer
is an "Investor" and a member of the "Investor Group" (each as defined in the
Stockholders' Agreement"), (ii) the Shares are "Investor Shares" (as defined in
the Stockholders' Agreement), (iii) for purposes of the calculation required by
Section 3 of the Stockholders' Agreement, so long as the Shares are owned
beneficially by Buyer or its affiliates, the Shares shall be treated as though
they continued to be beneficially owned by the original Investors (as defined in
the Stockholders' Agreement) and (iv) Buyer has all of the rights of the
"Investor" and a member of the "Investor Group" under the Stockholders'
Agreement, including without limitation such rights provided in Sections 2 and 3
thereof and (y) that for all purposes of the Registration Rights Agreement (i)
Buyer is a "Series B Investor" and a "Preferred Stock Investor" (each as defined
in the Registration Rights Agreement), (ii) the Shares are "Registrable
Securities" and "Series B Investor Shares" (each as defined in the Registration
Rights Agreement) and (iii) Buyer has all of the rights of a "Series B Investor"
and "Preferred Stock Investor" under the Registration Rights Agreement,
including without limitation such rights provided in Sections 2.1, 2.2, 2.3, 2.4
and 2.5 thereof.
4. MISCELLANEOUS.
4.1 REASONABLE BEST EFFORTS. Each party shall use its reasonable best
efforts to timely satisfy each of the conditions to be satisfied by it as
provided in Section 1.3.
4.2 AMENDMENT; WAIVER. This Agreement, together and the other documents
specifically contemplated herein to be delivered in connection herewith
constitute the entire agreement of the parties hereto with respect to the
subject matter hereof, and supersede all prior oral and written agreements and
understandings regarding the same. This Agreement may only be amended by a
writing duly executed by all of the parties hereto. No waiver of any provision
of this Agreement shall be binding upon any party unless the waiver is in
writing and signed by the parties hereto. The waiver by any party of a breach of
any provision under this Agreement shall not operate or be construed as a waiver
of any subsequent similar or other breach hereof.
4.3 GOVERNING LAW. THIS AGREEMENT SHALL BE DEEMED TO BE MADE IN AND IN
ALL RESPECTS SHALL BE INTERPRETED, CONSTRUED AND GOVERNED BY AND IN ACCORDANCE
WITH THE LAW OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE CONFLICT OF LAW
PRINCIPLES THEREOF THAT WOULD APPLY THE SUBSTANTIVE LAWS OF ANY OTHER
JURISDICTION.
4.4 ASSIGNMENT. This Agreement shall be binding upon and inure to the
benefit of each of the parties hereto, and their respective successors and
permitted assigns. No party hereto may assign any of its rights hereunder to
another party without the prior written consent of the other party hereto;
provided that, each party hereto may assign its rights hereunder without such
consent if such assignment is made to an affiliate of such assigning party.
4.5 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original and all of which
together shall be deemed to be one and the same instrument.
4.6 NOTICES. All notices, consents, requests, instructions, approvals
and other communications provided for herein shall be deemed validly given, made
or served if in writing and delivered personally or sent by certified mail,
postage prepaid, or by overnight courier, or by telecopier to
6
the address set forth opposite the receiving party's signature hereto, or to
such other address as shall be furnished in writing by any party to the others.
4.7 FURTHER ASSURANCES. The Sellers agree to cooperate with Buyer, and
at Buyer's request, to execute and deliver any further instruments (and to cause
any further instruments to be executed and delivered by any third party,
including without limitation the Company) as Buyer may reasonably request in
order to carry out the intent of the parties hereunder.
4.8 CONFIDENTIALITY. The Buyer shall not disclose any confidential
information provided by Sellers to Buyer in connection with the transactions
contemplated hereby to any party except Buyer's representatives, employees,
affiliates and agents ("Representatives") . Buyer shall not use the confidential
information to purchase or sell any equity securities of the Company in
violation of the Securities Exchange Act of 1934, as amended. For purposes of
this Section 3.8, the term "confidential information" shall not include any
information that (a) is or becomes public knowledge other than as a result of
the disclosure of such information by Buyer in a manner prohibited hereunder;
(b) was received by the Buyer through a third party (other than the Company or
its affiliates) that, to the knowledge of the Buyer, had the right to disclose
the confidential information to Buyer; (c) was in the Buyer's possession prior
to disclosure hereunder and was not acquired, directly or indirectly, from any
person or entity in a relationship of trust with the Company with respect to
such confidential information; (d) in connection with any litigation to which
Buyer may be a party; or (e) is required by applicable federal, state, or local
law, rule, or regulation or requested by or demanded of any judicial, regulatory
or administrative agency to be disclosed by the Buyer or its Representatives.
[Remainder of Page Intentionally Blank - Signatures Follow]
7
IN WITNESS WHEREOF, Sellers and Buyer have executed this
Agreement as of the date first above written.
SELLERS
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/ Thomas R. Denison Address: One Lafayette Place
------------------------------------ Greenwich, CT 06830
Name: Thomas R. Denison Fax: 203.661.6729
------------------------------------
Title: Managing Director
------------------------------------
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/ Thomas R. Denison Address: One Lafayette Place
------------------------------------ Greenwich, CT 06830
Name: Thomas R. Denison Fax: 203.661.6729
------------------------------------
Title: Managing Director
------------------------------------
BUYER
LB I GROUP INC.
By: /s/ Fred Steinberg Address: 399 Park Avenue, 9th Floor
------------------------------------ New York, NY 10022
Name: Fred Steinberg Attention: Fred Steinberg
------------------------------------
Title: Vice President
------------------------------------
EXHIBIT B
First Reserve Fund VII, Limited Partnership
First Reserve Fund VIII, L.P.
c/o First Reserve Corporation
One Lafayette Place
Greenwich, CT 06830
Re: Board Representation in connection with Transfer of Series B
Convertible Preferred Stock ("Series B Stock")
Ladies and Gentlemen:
This Letter Agreement is being delivered to you as a condition to the
transfer of 32,095 shares (the "Shares") of the Series B Stock of
TransMontaigne, Inc., a Delaware corporation (the "Company), from First Reserve
Fund VII, Limited Partnership, a Delaware limited partnership ("Fund VII") and
First Reserve Fund VIII, L.P., a Delaware limited partnership ("Fund VIII" and
with Fund VII, the "Sellers") to LB I Group Inc. (the "Buyer"), pursuant to the
Stock Purchase Agreement, dated October __, 2003, by and among Buyer and the
Sellers (the "Purchase Agreement").
In connection with the transfer of the Shares, the Sellers and Buyer
have requested, and the Company has agreed, that the Company provide certain
board representation rights to the Buyer. In exchange, the Sellers have agreed
to relinquish their rights under the Agreement to Elect Directors, dated April
17, 1996, as amended (the "Director Agreement"), with respect to one of the two
board seats covered by the Director Agreement.
Accordingly, the Company and Sellers hereby agree to amend the Director
Agreement as follows:
A. First Reserve Fund VI, Limited Partnership is hereby removed as a
"First Reserve Investor."
B. Section 1.1 of the Director Agreement is hereby amended in its
entirety to read as follows:
Board of Directors. From and after termination of the
Stockholders Agreement, the First Reserve Investors and the Company
hereby agree to take, at any time and from time to time, all action
necessary (including, without limitation, voting the Common Stock owned
by them, calling special meetings of stockholders and executing and
delivering written consents) to cause one director designated by the
First Reserve Investors from time to time to be elected to the
Company's Board of Directors. The First Reserve Investors hereby
designate John A. Hill as their initial nominee for director. The
Company shall cooperate fully in connection with any vote to elect as
promptly as possible any persons designated by the First Reserve
Investors in accordance with this Agreement. In the event of a
disagreement within the First Reserve Investors group as to any person
who the First Reserve Investors wish to designate for its seats on the
Board of Directors, unless otherwise agreed by the various First
Reserve Investors, a majority vote, by shares of Common Stock held, of
the First Reserve Investors shall resolve the disagreement. The First
Reserve Investors may elect, by written agreement among
themselves and without notice to the Company, to appoint a single First
Reserve Investor as the entity designating a director hereunder.
When accepted by you, this Letter Agreement will constitute the
agreement of the Company and Buyer with respect to the foregoing. Please
indicate your acceptance be signing in the space provided below.
Very truly yours,
/s/ Williams S. Dickey
Executive Vice President
AGREED AND ACCEPTED:
FIRST RESERVE FUND VI, LIMITED PARTNERSHIP
BY: FIRST RESERVE CORPORATION, GENERAL PARTNER
By: /s/ Thomas R. Denison
---------------------------------
Name: Thomas R. Denison
---------------------------------
Title: Managing Director
---------------------------------
FIRST RESERVE FUND VII, LIMITED PARTNERSHIP
BY: FIRST RESERVE GP VII, L.P., GENERAL PARTNER
BY: FIRST RESERVE CORPORATION, GENERAL PARTNER
By: /s/ Thomas R. Denison
----------------------------------
Name: Thomas R. Denison
-----------------------------------
Title: Managing Director
-----------------------------------
FIRST RESERVE FUND VIII, L. P.
BY: FIRST RESERVE GP VIII, L.P., GENERAL PARTNER
BY: FIRST RESERVE CORPORATION, GENERAL PARTNER
By: /s/ Thomas R. Denison
----------------------------------
Name: Thomas R. Denison
-----------------------------------
Title: Managing Director
-----------------------------------
EXHIBIT C
JOINT FILING AGREEMENT
We, the signatories of Amendment 8 to the statement on Schedule 13D
filed with respect to the Common Stock of TransMontaigne, Inc. to which this
Agreement is attached, hereby agree that such statement is, and any amendments
thereto filed by any of us will be, filed on behalf of each of us pursuant to
and in accordance with the provisions of Rule 13d-1(k) of the Securities
Exchange Act of 1934.
Dated: October 10, 2003
FIRST RESERVE CORPORATION
By: /s/ Thomas R. Denison
----------------------------------------
Name: Thomas R. Denison
Title: Managing Director
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/ Thomas R. Denison
------------------------------------
Name: Thomas R. Denison
Title: Managing Director
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/ Thomas R. Denison
-------------------------------------
Name: Thomas R. Denison
Title: Managing Director
FIRST RESERVE GP VII, L.P.
By: First Reserve Corporation,
its General Partner
By: /s/ Thomas R. Denison
-------------------------------------
Name: Thomas R. Denison
Title: Managing Director
FIRST RESERVE GP VIII, L.P.
By: First Reserve Corporation,
its General Partner
By: /s/ Thomas R. Denison
-------------------------------------
Name: Thomas R. Denison
Title: Managing Director