1
Exhibit 3
---------
EXECUTION COPY
REGISTRATION RIGHTS AGREEMENT dated as of October 30,
1998, between TransMontaigne Inc., a Delaware corporation
(the "Company"), and Xxxxx Xxxxxxx Corporation, a New York
corporation ("LDC").
WHEREAS, the Company and LDC have entered into a Stock
Purchase Agreement dated as of September 13, 1998 (the "Stock Purchase
Agreement"), 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 Xxxxx Xxxxxxx Energy Corp.
("LDEC"), a Delaware corporation and a wholly owned subsidiary of LDC (the
"Stock Purchase");
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 common stock, par value $.01 per share, of the Company (the
"Common Stock");
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
Rights Agreement") by and among the Company and the Institutional Investors
identified therein (the "Institutional Investors").
NOW, THEREFORE, in consideration of the aforesaid and the
mutual promises hereinafter made, the parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.1. Definitions. The following terms, as used herein, shall
have the following meanings:
"Advice" has the meaning set forth in Section 2.3.
"Affiliate" means, with respect to any specified person, any
other person directly or indirectly controlling, controlled by or under direct
or indirect common control with such specified person. For the purposes of this
definition, "control" when used with respect to any
2
2
specified person means the power to direct the management and policies of such
person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Board" means the Board of Directors of the Company.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday
and Friday which is not a day on which banking institutions in New York, New
York, Boston, Massachusetts or Fayetteville, Arkansas are authorized or
obligated by law or executive order to close.
"Commission" means the Securities and Exchange Commission or
any other Federal agency from time to time administering the 1933 Act or the
Exchange Act.
"Common Stock" has the meaning set forth in the recitals to
this Agreement.
"Common Stock Equivalent" means any securities of any person
convertible into or exchangeable or exercisable for Common Stock (whether at the
option of such person or of the holder of such securities).
"Company" has the meaning set forth in the preamble to this
Agreement.
"Covered Employees" means those employees of LDEC who are to
receive an award of Employee Shares (as defined below).
"Demand Registration" has the meaning set forth in Section
2.2.1.
"Employee Shares" means that portion of the LDC Shares
(consisting of 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.
"Institutional Investor Demand Registration" has the meaning
set forth in Section 2.2.1.
"Institutional Investor Notice" has the meaning set forth in
Section 2.2.1.
3
3
"Institutional Investor Registration Rights Agreement" has the
meaning set forth in the recitals to this Agreement.
"Institutional Investors" has the meaning set forth in the
recitals to this Agreement.
"LDC" has the meaning set forth in the preamble to this
Agreement.
"LDC Demand Registration" has the meaning set forth in Section
2.2.1.
"LDC Holders" has the meaning set forth in Section
2.1.1.
"LDC Notice" has the meaning set forth in Section 2.2.1.
"LDC Shares" has the meaning set forth in the
recitals to this Agreement.
"LDEC" has the meaning set forth in the recitals to this
Agreement.
"1933 Act" means the Securities Act of 1933, as amended.
"Permitted Affiliate of LDC" means any entity that is and
continues to be at least 80% owned, directly or indirectly, by S.A. Xxxxx
Xxxxxxx et Cie.
"Permitted Affiliate Section 3.1 Agreement" has the meaning
set forth in Section 3.1.
"person" means any individual, corporation, partnership, joint
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.
"Registration" has the meaning set forth in Section 2.3.
"Registrable Securities" means any shares of Common Stock
acquired in 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
4
4
respect of such shares of Common Stock by way of concession, stock dividend or
stock split or other distribution, recapitalization or reclassification, but
with respect to such shares of Common Stock, only so long as such shares are
"Restricted Securities". A share of Common Stock shall be deemed to be a
"Restricted Security" until such time as such share (i) has been effectively
registered under the 1933 Act pursuant to a registration statement with respect
to the sale of such share and disposed of pursuant to such registration
statement, (ii) has been distributed to the public pursuant to Rule 144 (or any
similar provision then in force) under the 1933 Act, (iii) shall have been
otherwise transferred, new certificates for it not bearing a legend restricting
further transfer shall have been delivered by the Company and subsequent
disposition of it shall not require registration or qualification of it under
the 1933 Act or any state securities or blue sky law then in force or (iv) shall
have ceased to be outstanding.
"Request Notice" has the meaning set forth in Section 2.2.1.
"Share Transfer" has the meaning set forth in Section 3.1.
"Shelf Registration" has the meaning set forth in Section
2.2.1.
"Stock Purchase" has the meaning set forth in the recitals to
this Agreement.
"Stock Purchase Agreement" has the meaning set forth in the
recitals to this Agreement.
"Stop Order" has the meaning set forth in Section 2.2.3.
ARTICLE II
Registration and Related Rights
SECTION 2.1. Company Registration.
2.1.1. Right to Piggyback on Company Registration of Common
Stock. Subject to Section 2.1.3, if the Company proposes, on its own initiative,
to register any Common Stock under the 1933 Act in connection with the offering
of such Common Stock on any form other than Form S-4 or Form S-8 or any form
substituting therefor (except for a registration in connection with an exchange
offer of
5
5
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") 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 Company of its
intent to participate in such proposed registration no less than 15 days after
the receipt of such notice. Subject to the pro rata allocations set forth in
Section 2.1.3, upon receipt of such written request of any such 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
discretion decides a Piggyback Registration shall be underwritten, the Company
shall have sole discretion in the selection of any underwriter or underwriters
to manage such Piggyback Registration.
2.1.3. Priority on Piggyback Registrations. If the managing
underwriter or underwriters of a Piggyback Registration (or in the case of a
Piggyback Registration not being underwritten, holders of a majority of the
shares of Common Stock proposed to be registered by (x) the 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
6
6
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 LDC Holder or (y) any
Institutional Investor pursuant to the Institutional Investor Registration
Rights Agreement and (iii) third, pro rata among any other shares of Common
Stock proposed to be included in such Piggyback Registration, in each case
according to the total number of shares of Common Stock requested for inclusion
by the 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.
2.2.1. Right to Demand. Subject to the following sentence, if,
at any time on or after December 31, 1999, any one or more of the 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
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
Demand Registration"), the Company shall thereupon, as expeditiously as
possible, use its best efforts to file a registration statement with the
Commission and have the registration statement declared effective by the
Commission; provided, however, that the number of Registrable Securities as to
which such request is made shall represent not less than five percent (5%) of
the then outstanding Common Stock and Common Stock Equivalents. 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
7
7
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 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 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 terms "Institutional Investor Demand Registration" and "LDC Demand
Registration" being collectively referred to herein as a "Demand Registration"),
serve written notice (the "LDC Notice") of such registration request to all LDC
Holders holding Registrable Securities and, subject to the pro rata allocations
set 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.
8
8
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
Registration")) pursuant to which a registration statement covering Registrable
Securities shall be filed with and declared effective by the Commission, the
expenses of which shall be borne by the Company in accordance with Section 2.4,
and no more than one 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 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
9
9
(iii) the Board makes a good faith determination that the public disclosures
required to be made in the requested registration statement would have a
material and adverse impact on the business, financial condition or prospects of
the Company, the Company may at its option direct that such request be delayed
for a period of not more than 90 days, which right to delay may be exercised by
the Company only one time in respect of each 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
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 pursuant to this Section 2.2 shall not be deemed to have been effected
unless the registration statement prepared in connection therewith has become
effective; provided, however, that if, within 75 days after such registration
statement has become effective (135 days in the case of the Shelf Registration),
the offering of Registrable Securities pursuant to such registration statement
is interfered with by any stop order, injunction or other order or requirement
of the SEC or other governmental agency or court (collectively, a "Stop Order"),
such registration shall be deemed not to have been effected. Notwithstanding the
preceding sentence, if any such Stop Order is rescinded, the effective period
shall continue upon such rescission and be extended by the number of days by
which such Stop Order reduced the effective period.
2.2.4. Priority on Demand Registrations. If the managing
underwriter or underwriters of a Demand Registration initiated under this
Agreement or the Institutional Investor Registration Rights Agreement advise the
Company in writing that in its or their opinion the number of shares of Common
Stock proposed to be sold in such Demand Registration exceeds the number which
can be sold, or would adversely affect the price at which the Common Stock could
be sold in such offering, the Company will include in such registration only
that number of shares of Common Stock which, in the opinion of such underwriter
or underwriters,
10
10
can be sold in such offering without so affecting such price. The shares of
Common Stock to be included in such Demand Registration shall be apportioned (i)
first, pro rata among (x) the Registrable Securities of the 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 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 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 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
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 Registration (collectively
referred to as a "Registration") furnish to the Company such information
regarding them, the Registrable Securities held by them, the intended method of
disposition of such Registrable Securities, and such agreements regarding
indemnification, disposition of such securities and the other matters referred
to in this Article II as the Company may reasonably request and as may be
required in connection with any action to be taken by the
11
11
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, 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 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;
12
12
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 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
13
13
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 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
14
14
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 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
15
15
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 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.
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
16
16
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 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
17
17
(i) give prompt written notice to the indemnifying party of any claim with
respect to which it seeks indemnification and (ii) unless in such indemnified
party's reasonable judgment a conflict of interest may exist between such
indemnified and indemnifying party, permit the indemnifying party to assume the
defense of such claim, with counsel reasonably satisfactory to the indemnified
party. The failure to so notify the indemnifying party shall relieve the
indemnifying party from any liability hereunder with respect to the action to
the extent that such failure materially prejudices the indemnifying party.
Whether or not such defense is assumed by the indemnifying party, the
indemnifying party shall not be subject to any liability for any settlement made
without its consent (which consent shall not be unreasonably withheld). No
indemnifying party shall consent to entry of any judgment or enter into any
settlement which does not include as an unconditional term thereof the giving by
the claimant or plaintiff to such indemnified party of a release from all
liability in respect of such claim or litigation. An indemnifying party who is
not entitled to, or elects not to, 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.
18
18
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 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
19
19
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 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
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)
20
20
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 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
21
21
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 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
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
22
22
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.
000 Xxxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxxx
President and Chief Operating
Officer
with copies to:
TransMontaigne Inc.
000 Xxxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxx X. Xxxxxxx, Esq.
Senior Vice President, General
Counsel and Corporate Secretary
Cravath, Swaine & Xxxxx
Worldwide Plaza
000 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.; and
23
23
(ii) if to LDC,
Xxxxx Xxxxxxx Corporation
Xxx Xxxxxxxx Xxxx
X.X. Xxx 000
Xxxxxx, Xxxxxxxxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxx Xxxxxxx
President
with copies to:
Xxxxx Xxxxxxx Corporation
Xxx Xxxxxxxx Xxxx
X.X. Xxx 000
Xxxxxx, Xxxxxxxxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
General Counsel; and
Xxxxx Xxxxxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxxx, 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 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
24
24
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 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
25
25
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
--------------------------------------------
Name:
Title:
XXXXX XXXXXXX CORPORATION,
by
------------------------------------------
Name:
Title:
26
ANNEX A
[AMENDMENT AND WAIVER TO INSTITUTIONAL INVESTOR
REGISTRATION RIGHTS AGREEMENT--TO COME WHEN EXECUTED]
