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EXHIBIT E
AMENDED AND RESTATED PREFERRED STOCK INVESTOR
REGISTRATION RIGHTS AGREEMENT
AMENDED AND RESTATED PREFERRED STOCK
INVESTOR REGISTRATION RIGHTS AGREEMENT (this
"Agreement") dated as of June 27, 2002, between
TransMontaigne Inc., a Delaware corporation (the
"Company"), and the entities listed on the signature
pages of this Amended and Restated Registration
Rights Agreement (the "Preferred Stock Investors").
WHEREAS, pursuant to the terms of the Preferred Stock and
Warrant Purchase Agreements between the Company and each of the Preferred Stock
Investors (the "Stock and Warrant Purchase Agreements"), the Preferred Stock
Investors have purchased (x) shares of the Company's Series A Convertible
Preferred Stock, par value $.01 per share (the "Series A Preferred Stock") and
(y) Warrants, each to purchase three-fifths of one share of the Company's Common
Stock, par value $.01 per share (the "Common Stock") and are beneficiaries of a
Registration Rights Agreement dated as of March 25, 1999 with the Company (the
"Original Registration Rights Agreement");
WHEREAS, pursuant to the terms of the Preferred Stock
Recapitalization Agreements (the "Recapitalization Agreements") entered into, or
to be entered into, between the Company and the Preferred Stock Investors (the
"Series B Investors"), the Series B Investors have agreed to tender (the
"Recapitalization") certain of their shares of Series A Preferred Stock and
Warrants for recapitalization by the Company for consideration consisting of (x)
shares of Common Stock, (y) cash and (z) shares of the Company's Series B
Convertible Preferred Stock, par value $0.01 per share (the "Series B Preferred
Stock"); and
WHEREAS, it is a condition precedent to the Series B
Investors' obligations to participate in the Recapitalization as contemplated by
the Recapitalization Agreements that the Company and the Series B Investors
shall have entered into this Agreement to, among other things, (i) grant
registration rights in respect of the Series B Investor Shares similar to the
rights set forth in (x) the Registration Rights Agreement, dated as of April 17,
1996, and amended and restated as of June 27, 2002 (the "Institutional Investor
Registration Rights Agreement"), by and among the Company and the institutional
investors identified therein (the "Institutional Investors"), (y) the
Registration Rights Agreement, dated as of October 30, 1998, and amended and
restated as of June 27, 2002 (the "LDC Registration Rights Agreement"), between
the Company and Xxxxx Xxxxxxx Corporation ("LDC") and (z) the Original
Registration Rights Agreement and (ii) amend and restate the Original
Registration Rights Agreement as evidenced hereby.
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NOW, THEREFORE, in consideration of the aforesaid and the
mutual promises hereinafter made, the parties hereto agree that the Original
Registration Rights Agreement is hereby amended and restated in its entirety as
follows:
Definitions
Definitions. The following terms, as used herein, shall have the following
meanings:
"Advice" has the meaning set forth in Section 2.3.
"Affiliate" means, with respect to any specified person, any
other person directly or indirectly controlling, controlled by or under direct
or indirect common control with such specified person. For the purposes of this
definition, "control" when used with respect to any specified person means the
power to direct the management and policies of such person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Agreement" has the meaning set forth in the preamble to this
Agreement.
"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 are authorized or obligated by law or executive order to close.
"Commission" means the Securities and Exchange Commission or
any other Federal agency from time to time administering the 1933 Act or the
Exchange Act.
"Common Stock" has the meaning set forth in the recitals to
this Agreement.
"Common Stock Equivalent" means any securities of any person
convertible into or exchangeable or exercisable for Common Stock (whether at the
option of such person or of the holder of such securities), including the Series
A Preferred Stock and the Series B Preferred Stock.
"Company" has the meaning set forth in the preamble to this
Agreement.
"Demand Registration" has the meaning set forth in Section
2.2.1.
"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.
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"Institutional Investor Registration Rights Agreement" has the
meaning set forth in the recitals to this Agreement.
"Institutional Investors" has the meaning set forth in the
recitals to this Agreement.
"LDC" has the meaning set forth in the recitals to this
Agreement.
"LDC Demand Registration" has the meaning set forth in Section
2.2.1.
"LDC Holders" has the meaning set forth in the LDC
Registration Rights Agreement.
"LDC Notice" has the meaning set forth in Section 2.2.1.
"LDC Registration Rights Agreement" has the meaning set forth
in the recitals to this Agreement.
"1933 Act" means the Securities Act of 1933, as amended.
"Original Registration Rights Agreement" has the meaning set
forth in the recitals to this Agreement.
"Permitted Affiliate of the Preferred Stock Investors" means
any Affiliate, officer or employee of an Affiliate or investment fund managed by
an Affiliate of any Preferred Stock Investor to which any Preferred Stock
Investor may transfer record and/or beneficial ownership of the Preferred Stock
Investor Shares.
"person" means any individual, corporation, limited liability
company, firm, partnership, joint venture, association, joint-stock company,
trust, unincorporated organization or any other entity or organization,
including a government, a governmental body, a political subdivision or an
agency or instrumentality thereof.
"Piggyback Registration" has the meaning set forth in Section
2.1.1.
"Preferred Stock Investors" has the meaning set forth in the
recitals to this Agreement, and includes the Series B Investors unless expressly
indicated otherwise.
"Preferred Stock Investor Demand Notice" has the meaning set
forth in Section 2.2.1.
"Preferred Stock Investor Demand Registration" has the
meaning set forth in Section 2.2.1.
"Preferred Stock Investor Holders" has the meaning set forth
in Section 2.1.1.
"Preferred Stock Investor Notice" has the meanings set forth
in Section 2.2.1.
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"Preferred Stock Investor Shares" means the Series B Investor
Shares and any shares of Common Stock issued or issuable upon conversion of the
Series A Preferred Stock or upon exercise of the Warrants by the Preferred Stock
Investors.
"Recapitalization" has the meaning set forth in the recitals
to this Agreement.
"Recapitalization Agreement" has the meaning set forth in the
recitals to this Agreement.
"Registration" has the meaning set forth in Section 2.3.
"Registrable Securities" means (v) any shares of Common Stock
issued upon recapitalization of the Series A Preferred Stock and the Warrants
pursuant to the Recapitalization, (w) any shares of Common Stock issued or
issuable upon conversion or redemption of the Series B Preferred Stock by the
Series B Investors and owned by a Series B Investor or a Permitted Affiliate of
the Preferred Stock Investors or any other transferee of the foregoing, (x) any
shares of Common Stock issued or issuable upon conversion or redemption of the
Series A Preferred Stock, if any, by the Preferred Stock Investors and owned by
a Preferred Stock Investor or a Permitted Affiliate of the Preferred Stock
Investors or any other transferee of the foregoing, (y) any shares of Common
Stock issued or issuable upon exercise of the Warrants, if any, and (z) any
shares of Common Stock which may be issued or distributed in respect of such
shares of Common Stock by way of concession, stock dividend or stock split or
other distribution, recapitalization or reclassification, but with respect to
such shares of Common Stock, only so long as such shares are "Restricted
Securities". A share of Common Stock shall be deemed to be a "Restricted
Security" until such time as such share (i) has been effectively registered
under the 1933 Act pursuant to a registration statement with respect to the sale
of such share and disposed of pursuant to such registration statement, (ii) has
been distributed to the public pursuant to Rule 144 (or any similar provision
then in force) under the 1933 Act, (iii) has been otherwise transferred, new
certificates for it not bearing a legend restricting further transfer having
been delivered by the Company and the subsequent disposition of it not requiring
registration or qualification of it under the 1933 Act or any state securities
or blue sky law then in force or (iv) has ceased to be outstanding.
"Request Notice" has the meaning set forth in Section 2.2.1.
"Series A Preferred Stock" has the meaning set forth in the
recitals to this Agreement.
"Series B Investor Shares" means the Common Stock issued upon
recapitalization of the Series A Preferred Stock and the Warrants and any shares
of Common Stock issued or issuable upon conversion of the Series B Preferred
Stock.
"Series B Investors" has the meaning set forth in the preamble
to this Agreement, and shall include the holders of the Series B Investor
Shares.
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"Series B Preferred Stock" means the Company's Series B
Convertible Preferred Stock, par value $.01 per share, which Series B Preferred
Stock is convertible into shares of Common Stock.
"Shelf Registration" has the meaning set forth in Section
2.2.1.
"Stock and Warrant Purchase Agreements" has the meaning set
forth in the recitals to this Agreement.
"Stop Order" has the meaning set forth in Section 2.2.3.
"Third Party" has the meaning set forth in Section 2.1.1.
"Third Party Registration" has the meaning set forth in
Section 2.1.3.
"Warrants" shall mean Warrants to purchase shares of Common
Stock as more fully set forth in the Stock and Warrant Purchase Agreements.
ARTICLE II
Registration and Related Rights
SECTION 2.1. Company Registration.
2.1.1. Right to Piggyback on Company Registration of Common Stock.
Subject to Section 2.1.3, if the Company proposes, on its own initiative or at
the request of a party holding rights to demand registrations of the Common
Stock other than under the LDC Registration Rights Agreement, the Institutional
Investor Registration Rights Agreement or this Agreement (a "Third Party") to
register any Common Stock under the 1933 Act in connection with the offering of
a primary issuance or, in the case of such Third Party, a secondary issuance, of
such Common Stock on any form other than Form S-4 or Form S-8 or any form
substituting therefor (except for a registration in connection with an exchange
offer of securities solely to existing securityholders of the Company) and such
proposal would result in the filing of a registration statement with the
Commission in connection therewith at any time, the Company shall at such time
promptly give each Preferred Stock Investor, each Permitted Affiliate of the
Preferred Stock Investors and any other transferee of the foregoing then owning
Registrable Securities (collectively, the "Preferred Stock Investor Holders")
written notice of such determination no later than thirty-five (35) days prior
to the proposed effectiveness date (such proposed effectiveness date to be
specified by the Company in the written notice) of the registration statement to
be prepared in connection with such proposed registration. Any Preferred Stock
Investor Holder wishing to register all or any portion of such Preferred Stock
Investor Holder's Registrable Securities pursuant to such proposed registration
(a "Piggyback Registration") must give written notice to the Company of its
intent to participate in such proposed registration no later than fifteen (15)
days after receipt of the notice delivered by the Company. Subject to the
allocations set forth in Section 2.1.3, upon receipt of such written request of
any such Preferred Stock Investor Holder, the Company will use its reasonable
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 Preferred
Stock Investor Holders. Any Preferred Stock Investor Holder holding Registrable
Securities that has requested
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to be included in such registration may elect, in writing at least five (5)
Business Days prior to the effective date of the registration statement filed in
connection with such registration, not to register such Registrable Securities
in such registration.
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.
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 Preferred Stock Investor Holders, (y) the LDC
Holders pursuant to the LDC Registration Rights Agreement and (z) the
Institutional Investors pursuant to the Institutional Investor Registration
Rights Agreement) advise the Company in writing that in its or their opinion the
number of shares of Common Stock proposed to be sold in such Piggyback
Registration (including any shares proposed to be sold by (i) LDC Holders
pursuant to the LDC Registration Rights Agreement, (ii) Institutional Investors
pursuant to the Institutional Investor Registration Rights Agreement and (iii)
Preferred Stock Investor Holders pursuant to this 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 Piggyback
Registration only that number of shares of Common Stock which, in the opinion of
such underwriter or underwriters (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 the Preferred Stock Investor Holders, the LDC Holders and
the Institutional Investors, as the case may be), can be sold in such offering
without so affecting such price. The shares of Common Stock to be included in
such Piggyback Registration shall be apportioned (a) first, to any shares of
Common Stock that the Company proposes to sell, or in the case of a registration
at the request of a Third Party (a "Third Party Registration"), to any shares of
Common Stock that the Third Party proposes to sell, (b) second, pro rata among
any shares of Common Stock proposed to be sold by (x) any LDC Holder pursuant to
the LDC Registration Rights Agreement and (y) any Institutional Investor
pursuant to the Institutional Investor Registration Rights Agreement, up to a
maximum of 40% of the balance of the shares of Common Stock to be included in
such Piggyback Registration after subtracting the shares proposed to be sold by
the Company, or the Third Party, as the case may be, (c) third, pro rata among
any shares of Common Stock proposed to be sold by any Preferred Stock Investor
Holder and (d) fourth, pro rata among any other shares of Common Stock proposed
to be included in such Piggyback Registration, including, in the case of a Third
Party Registration, the Company, and in the case of a primary issuance by the
Company, any Third Party, in each case according to the total number of shares
of Common Stock requested for inclusion by the Preferred Stock Investor Holders,
the LDC Holders and the Institutional Investors, as applicable, or in such other
proportions as shall mutually be agreed to among such selling stockholders, as
applicable. Notwithstanding the foregoing, after June 30, 2004, 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, or
in the case of a Third Party Registration, to any shares of Common Stock that
the Third Party proposes to sell, (II) second, pro rata among any shares of
Common Stock proposed to be sold by (A) any Preferred Stock Investor Holder, (B)
any LDC Holder pursuant to the LDC Registration Rights Agreement and (C) 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
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Piggyback Registration, including, in the case of a Third Party Registration,
the Company, and in the case of a primary issuance by the Company, any Third
Party, in each case according to the total number of shares of Common Stock
requested for inclusion by the Preferred Stock Investor Holders, the LDC Holders
and the Institutional Investors, as applicable, or in such other proportions as
shall mutually be agreed to among such selling stockholders, as applicable.
SECTION 2.2. Demand Registration Rights.
2.2.1. Right to Demand. If, at any time on or after June 30, 2004, or
at any time in respect of shares of Common Stock issued upon conversion or
redemption of the Series B Preferred Stock or the Series A Preferred Stock, any
one or more of the Preferred Stock Investor Holders holding Registrable
Securities representing five percent (5%) or more in the aggregate of the then
outstanding Common Stock (assuming conversion or exercise of all Common Stock
Equivalents held by the Preferred Stock Investor Holders into Registrable
Securities at the then conversion price or exercise price) submits a written
request (a "Request Notice") to the Company for registration with the Commission
under and in accordance with the provisions of the 1933 Act of all or part of
the Registrable Securities then owned by such Preferred Stock Investor Holder or
Preferred Stock Investor Holders (a "Preferred Stock Investor Demand
Registration"), the Company shall thereupon, as expeditiously as possible, use
its reasonable 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. The Preferred Stock
Investor Holders acknowledge that, within ten (10) days after receipt of such
Request Notice, the Company will serve written notice of such registration
request to (a) all LDC Holders who hold shares of Common Stock which carry
registration rights pursuant to the LDC Registration Rights Agreement (the "LDC
Notice"), (b) all Institutional Investors who hold shares of Common Stock which
carry registration rights pursuant to the Institutional Investor Registration
Rights Agreement (the "Institutional Investor Notice") and (c) all other
Preferred Stock Investor Holders (the "Preferred Stock Investor Demand Notice"),
and, subject to the pro rata allocations set forth in Section 2.2.4, the Company
will include in such Preferred Stock Investor Demand Registration all such
shares of Common Stock held by the LDC Holders, Institutional Investors and
Preferred Stock Investor Holders with respect to which the Company has received
a written request for inclusion therein within twenty (20) days after the giving
of the LDC Notice, the Institutional Investor Notice and the Preferred Stock
Investor Demand Notice; provided, however, that in the event of a Preferred
Stock Investor Demand Registration prior to June 30, 2004, Preferred Stock
Investor Holders may only request for inclusion in such Preferred Stock Investor
Demand Registration those shares of Common Stock issued upon conversion of the
Series B Preferred Stock or the Series A Preferred Stock. Any Preferred Stock
Investor Demand Registration representing five percent (5%) or more in the
aggregate of the then outstanding Common Stock (assuming conversion or exercise
of all Common Stock Equivalents held by the Preferred Stock Investor Holders
into Registrable Securities at the then conversion price or exercise price)
shall, at the Company's option, be underwritten by one or more underwriters and
shall be subject to Section 2.2.2 if such Preferred Stock Investor Holder Demand
Registration has not previously been designated an underwritten offering;
provided, however, that any Preferred Stock Investor
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Demand Registration exclusively involving shares of Common Stock sold pursuant
to block trades need not be underwritten.
The LDC Holders and the Institutional Investors have rights to
demand registrations under the LDC Registration Rights Agreement and the
Institutional Investor Registration Rights Agreement, respectively, similar to
those of the Preferred Stock Investor Holders under this Agreement. The Company
agrees that it shall, within ten (10) days after receipt of a demand
registration request notice from (X) any one or more of the LDC Holders pursuant
to the LDC Registration Rights Agreement (an "LDC Demand Registration") or (Y)
any one or more of the Institutional Investors pursuant to the Institutional
Investor Registration Rights Agreement (an "Institutional Investor Demand
Registration") (with the terms "LDC Demand Registration", "Institutional
Investor Demand Registration" and "Preferred Stock Investor Demand Registration"
being collectively referred to herein as a "Demand Registration"), serve written
notice (the "Preferred Stock Investor Notice") of such registration request to
all Preferred Stock Investor Holders holding Registrable Securities and, subject
to the pro rata allocations set forth in Section 2.2.4, the Company shall
include in such LDC Demand Registration or such Institutional Investor Demand
Registration, as the case may be, all Registrable Securities held by Preferred
Stock Investor Holders with respect to which the Company has received a written
request for inclusion therein within twenty (20) days after the giving of the
Preferred Stock Investor Notice. Any request by one or more Preferred Stock
Investor Holders for inclusion in an LDC Demand Registration or an Institutional
Investor Demand Registration shall be deemed to be one (1) of the four (4)
Demand Registrations permitted hereunder if (i) such request is in respect of at
least 1,000,000 shares of Common Stock and (ii) at least 75% of the shares of
Common Stock requested for inclusion by the Preferred Stock Investor Holders are
so included. The Company represents that the LDC Holders and the Institutional
Investors have agreed to the Preferred Stock Investor Holders' right to
participate in LDC Demand Registrations and Institutional Investor Demand
Registrations, respectively, on the terms and conditions set forth in this
Section 2.
All Preferred Stock Investor Holders requesting registration
of their Registrable Securities pursuant to this Section 2.2.1 shall specify the
aggregate number of Registrable Securities proposed to be registered and the
intended methods of disposition thereof. The Preferred Stock Investor Holders
shall collectively be entitled to request, or participate in a Preferred Stock
Investor Holder request, an Institutional Investor request or an LDC Holder
request for, four (4) 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 (1) Preferred Stock
Investor Demand Registration may be requested by any Preferred Stock Investor
Holder in any 12-month period; provided, however, that if, following the
effective date of any registration statement filed pursuant to a Demand
Registration, any Preferred Stock Investor Holder whose Registrable Securities
are to be included in such Demand Registration pursuant to this Section 2.2.1
elects, by giving written notice to the Company not later than ninety (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
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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 (1) of the four (4) 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 ninety (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 Preferred Stock Investor
Holders had the right to include their Registrable Securities, whether as a
Piggyback Registration or pursuant to the Preferred Stock Investor Holders'
participation rights in respect of an LDC Demand Registration or an
Institutional Investor Demand Registration, or which was made on Form S-4 or any
successor form, (II) the Company is engaged in any other activity outside of the
ordinary course of business, such as a merger, consolidation, recapitalization
or acquisition which, in the good faith judgment of the Board, would be
materially and adversely affected by the requested registration or (III) the
Board makes a good faith determination that the public disclosures required to
be made in the requested registration statement would have a material and
adverse impact on the business, financial condition or prospects of the Company,
the Company may at its option direct that such request be delayed for a period
of not more than ninety (90) days, which right to delay may be exercised by the
Company only one (1) time in respect of each Preferred Stock Investor Demand
Registration.
The Company shall have the same rights to piggyback on a
Preferred Stock Investor Demand Registration as a Preferred Stock Investor
Holder would have in a Piggyback Registration permitted under Section 2.1
subject to the pro rata allocations set forth in Section 2.2.4.
2.2.2. Selection of Underwriters. If a proposed Preferred Stock
Investor Demand Registration involves either a firm or best efforts underwritten
offering, the Preferred Stock Investor Holder(s) giving the Request Notice with
respect to such Preferred Stock Investor Demand Registration shall have the
right, subject to approval by the Company (which approval shall not be
unreasonably withheld), to select the underwriter or underwriters to manage such
Preferred Stock Investor Demand Registration.
2.2.3. Effective Registration Statement. A registration requested
pursuant to this Section 2.2 shall not be deemed to have been effected unless
the registration statement prepared in connection therewith has become
effective; provided, however, that if, within 75 days after such registration
statement has become effective (135 days in the case of the Shelf Registration),
the offering of Registrable Securities pursuant to such registration statement
is interfered with by any stop order, injunction or other order or requirement
of the Commission or other governmental agency or court (collectively, a "Stop
Order"), such registration shall be deemed not to have been effected.
Notwithstanding the preceding sentence, if any such Stop Order is rescinded, the
effective period shall continue upon such rescission and be extended by the
number of days by which such Stop Order reduced the effective period.
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2.2.4. Priority on Demand Registrations. If the managing underwriter or
underwriters of a Demand Registration initiated under this Agreement, the LDC
Registration Rights Agreement or the Institutional Investor Registration Rights
Agreement advise the Company in writing that in its or their opinion the number
of shares of Common Stock proposed to be sold in such Demand Registration
exceeds the number which can be sold, or would adversely affect the price at
which the Common Stock could be sold in such offering, the Company will include
in such registration only that number of shares of Common Stock which, in the
opinion of such underwriter or underwriters, can be sold in such offering
without so affecting such price. The shares of Common Stock to be included in
such Demand Registration shall be apportioned (x) first, pro rata among (i)
shares of Common Stock held by Preferred Stock Investor Holders who have made a
request to be included in such Demand Registration, (ii) shares of Common Stock
held by LDC Holders who have made a request to be included in such Demand
Registration and (iii) shares of Common Stock held by Institutional Investors
who have made a request to be included in such Demand Registration, based on the
number of shares required to be included in such registration statement, and (y)
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. Notwithstanding the foregoing, the
shares of Common Stock to be included in any Demand Registration prior to June
30, 2004 shall be apportioned (a) first, pro rata among any shares of Common
Stock proposed to be sold by (x) any LDC Holder pursuant to the LDC Registration
Rights Agreement and (y) any Institutional Investor pursuant to the
Institutional Investor Registration Rights Agreement, up to a maximum of 40% of
the total number of shares of Common Stock to be included in such Demand
Registration, (b) second, pro rata among any shares of Common Stock proposed to
be sold by any Preferred Stock Investor Holder and (c) third, 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, in each case according to the total number of
shares of Common Stock requested for inclusion by the Preferred Stock Investor
Holders, the LDC Holders and the Institutional Investors, as applicable, or in
such other proportions as shall mutually be agreed to among such selling
stockholders, as applicable.
2.2.5. Approval of LDC Holders and Institutional Investors. As
evidenced by the Institutional Investor Registration Rights Agreement and the
LDC Registration Rights Agreement, each in the form attached hereto, the Company
represents that the Institutional Investors and the LDC Holders have approved
the Company's entering into this Agreement and the granting to the Preferred
Stock Investor Holders of registration rights in respect of Piggyback
Registrations and Demand Registrations on the terms and conditions set forth
herein.
2.2.6. Additional Rights. If the Company at any time grants to any
other holders of Common Stock or Common Stock Equivalents any rights to request
the Company to effect the registration under the 1933 Act of any such shares of
Common Stock on terms more favorable to such holders than the terms set forth in
this Agreement, the terms of this Agreement shall be deemed amended or
supplemented to the extent necessary to provide the Preferred Stock Investor
Holders with the same, more favorable terms. The Company shall not grant any
other person rights to register securities of the Company on terms which could
restrict in any way the ability of the Company fully to perform its obligations
to the Preferred Stock Investor Holders pursuant to this Agreement, except for
the Institutional Investor Registration Rights Agreement and the
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LDC Registration Rights Agreement and the granting of registration rights in
respect of Piggyback Registrations and Demand Registrations to the Institutional
Investors and the LDC Holders, respectively, on the respective terms and
conditions set forth in such agreements, to which the Preferred Stock Investors
hereby consent.
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 Preferred Stock Investor Holders
requesting inclusion in any Piggyback Registration or Demand Registration
(collectively referred to as a "Registration") furnish to the Company such
information regarding them, the Registrable Securities held by them, the
intended method of disposition of such Registrable Securities, and such
agreements regarding indemnification, disposition of such securities and the
other matters referred to in this Article II as the Company may reasonably
request and as may be required in connection with any action to be taken by the
Company or any such underwriter. With respect to any Registration which includes
Registrable Securities held by a Preferred Stock Investor Holder, the Company
shall, subject to Sections 2.1 and 2.2;
2.3.1. Prepare and file with the Commission a registration statement on
the appropriate form prescribed by the Commission within ninety (90) 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 reasonable
best efforts to cause such registration statement to become effective; provided,
however, that at least five (5) business days prior to filing a registration
statement and at least three (3) business days prior to the filing of a
prospectus or any amendments or supplements to a registration statement or a
prospectus, 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 Preferred Stock Investor Holders or the underwriters, if any, shall
reasonably object;
2.3.2. Prepare and file with the Commission such amendments and
post-effective amendments to such registration statement and any documents
required to be incorporated by reference therein as may be necessary to keep the
registration statement effective for a period of time as necessary to complete
the offering, which period shall be not less than 90 days (or 180 days in the
case of the Shelf Registration) (or such shorter period that shall terminate
when all Registrable Securities covered by such registration statement have been
sold or withdrawn, but not prior to the expiration of the time period 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;
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2.3.3. Furnish to each such Preferred Stock Investor Holder, without
charge, at least one (1) 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 Preferred Stock Investor Holder or underwriter or
underwriters, if any, may request in order to facilitate the disposition of the
securities being sold by any such Preferred Stock Investor Holder (it being
understood that the Company consents to the use of the prospectus and any
amendment or supplement thereto by any such Preferred Stock Investor Holder
covered by the registration statement and the underwriter or underwriters, if
any, in connection with the offering and sale of the securities covered by the
prospectus or any amendments or supplements thereto);
2.3.4. Immediately notify each such Preferred Stock Investor Holder, at
any time when a prospectus relating thereto is required to be delivered under
the 1933 Act, when the Company becomes aware of the occurrence 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 Preferred Stock Investor
Holders (a reasonable number of such amended and supplemented prospectuses
having been delivered to the Preferred Stock Investor Holders), such prospectus
will not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading;
2.3.5. Use its reasonable 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 Preferred
Stock Investor Holder, promptly incorporate in a prospectus supplement or
post-effective amendment such information with respect to the offering as the
managing underwriter or underwriters or such Preferred Stock Investor Holder
reasonably requests to be included therein, including, without limitation, with
respect to the number of shares being sold by such Preferred Stock Investor
Holder to such underwriter or underwriters, the purchase price being paid
therefor by such underwriter or underwriters and with respect to any term of the
underwritten offering of the securities to be sold in such offering; and make
all required filings of such prospectus supplement or post-effective amendment
as soon as practicable after being notified of the matters to be incorporated in
such prospectus supplement or post-effective amendment;
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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
Preferred Stock Investor Holder;
2.3.9. Prior to the date on which the registration statement is
declared effective, use its reasonable best efforts to register or qualify, and
cooperate with such Preferred Stock Investor Holders, the underwriter or
underwriters, if any, and their counsel in connection with the registration or
qualification of, the securities covered by the registration statement for offer
and sale under the securities or blue sky laws of each state and other
jurisdiction of the United States as such Preferred Stock Investor Holders or
managing underwriter or underwriters, if any, requests in writing, use its
reasonable 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 Preferred Stock Investor Holders or the underwriters
may reasonably request in order to expedite or facilitate the disposition of
such Registrable Securities;
2.3.11. Obtain a "comfort" letter or letters from the Company's
independent public accountants in customary form and covering matters of the
type customarily covered by "comfort" letters as the underwriters, if any, may
reasonably request;
2.3.12. Make available for inspection by any Preferred Stock Investor
Holder holding Registrable Securities covered by such registration statement, by
any underwriter participating in any disposition to be effected pursuant to such
registration statement and by any attorney, accountant or other agent retained
by any such seller or any such underwriter, all pertinent financial and other
records, pertinent corporate documents and properties of the Company, and cause
the Company's officers, directors and employees to supply all information
reasonably requested by any such Preferred Stock Investor Holder, underwriter,
attorney, accountant or agent in connection with such registration statement;
2.3.13. Cooperate with such Preferred Stock Investor Holders and the
managing underwriter or underwriters, if any, to facilitate the timely
preparation and delivery of certificates (not bearing any restrictive legends)
representing securities to be sold under the registration statement, and enable
such securities to be in such denominations and registered in such names as the
Preferred Stock Investor Holders or the managing underwriter or underwriters, if
any, may request; and
2.3.14. Use its reasonable best efforts to cause the securities covered
by the registration statement to be registered with or approved by such other
governmental agencies or authorities
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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 Preferred Stock Investor Holders, upon receipt of any
notice from the Company of the happening of any event of the kind described in
Section 2.3.4, shall forthwith discontinue disposition of the securities until
the Preferred Stock Investor Holders' receipt of the copies of the supplemented
or amended prospectus contemplated by Section 2.3.4 or until they are advised in
writing (the "Advice") by the Company that the use of the prospectus may be
resumed, and have received copies of any additional or supplemental filings
which are incorporated by reference in the prospectus, and, if so directed by
the Company, each Preferred Stock Investor Holder shall, or shall request the
managing underwriter or underwriters, if any, to, deliver to the Company (at the
Company's expense) all copies, other than permanent file copies then in such
Preferred Stock Investor Holder's possession, of the prospectus covering such
securities which is current at the time of receipt of such notice. In the event
that the Company gives any such notice, the time periods set forth in Section
2.3.4 shall be extended by the number of days during the period from and
including the date of the giving of such notice to and including the date when
each seller 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 "comfort" letters
requested by the Preferred Stock Investor Holders and printing costs) and legal
fees or expenses of one (1) counsel for the Preferred Stock Investor Holders,
the LDC Holders and the Institutional Investors mutually selected by the
Preferred Stock Investor Holders, the LDC Holders and the Institutional
Investors (such counsel being subject to the reasonable approval of the
Company); provided, however, that the Company shall not be responsible for
registration or qualification fees or underwriter's discounts or commissions
that are attributable to the Registrable Securities of a Preferred Stock
Investor Holder.
In connection with any Registration, the Company shall be
required to obtain independent outside counsel that is sophisticated in
securities law matters and that is reasonably satisfactory to a majority of the
Preferred Stock Investor Holders that have shares of Common Stock included in
such Registration.
SECTION 2.5. Indemnification and Contribution.
2.5.1. Indemnification by the Company. The Company agrees to indemnify
and hold harmless each Preferred Stock Investor Holder, its officers, directors
and agents and each person who controls (within the meaning of the 1933 Act and
the Exchange Act) such Preferred Stock Investor Holder against all losses,
claims, damages, liabilities and expenses arising out of or based upon any
untrue or allegedly untrue statement of a material fact contained in any
registration statement, prospectus or preliminary prospectus in which such
Preferred Stock Investor Holder is participating or in any document incorporated
by reference therein or any omission or alleged omission to state therein a
material fact necessary to make the statements therein (in the case of the
prospectus or any preliminary prospectus, in light of the circumstances under
which they were made) not misleading, except insofar as the same are caused by,
based upon or contained in any information with respect to such Preferred Stock
Investor Holder furnished in writing to the Company by such Preferred Stock
Investor Holder expressly for use therein; provided, however,
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that the foregoing indemnity agreement with respect to any preliminary
prospectus shall not inure to the benefit of any Preferred Stock Investor Holder
from whom the person asserting such loss, claim, damage or liability purchased
shares of Common Stock if it is determined that it was the responsibility of
such Preferred Stock Investor Holder to provide such person with a current copy
of the prospectus and such current copy of the prospectus would have cured such
loss, claim, damage or liability. The Company shall also indemnify underwriters
(as such term is defined in the 1933 Act), their officers and directors and each
person who controls such persons (within the meaning of the 1933 Act and the
Exchange Act) to the same extent as provided above with respect to the
indemnification of the Preferred Stock Investor Holders.
2.5.2. Indemnification by Preferred Stock Investors. In connection with
any Registration in which a Preferred Stock Investor Holder is participating,
such Preferred Stock Investor Holder shall furnish to the Company in writing
such information and affidavits with respect to such Preferred Stock Investor
Holder as the Company may reasonably request for use in connection with any
registration statement or prospectus and the Preferred Stock Investors agree to
indemnify and hold harmless the Company, its directors, officers and agents and
each person who controls (within the meaning of the 1933 Act and the Exchange
Act) the Company against any losses, claims, damages, liabilities and expenses
arising out of or based upon any untrue statement of a material fact or any
omission to state a material fact necessary to make the statements in the
registration statement or prospectus or preliminary prospectus (in the case of
the prospectus or preliminary prospectus, in light of the circumstances under
which they were made) not misleading, to the extent, but only to the extent,
that such untrue statement or omission is contained in any information or
affidavit with respect to such Preferred Stock Investor Holder furnished in
writing to the Company by such Preferred Stock Investor Holder expressly for use
therein; provided, however, that the amount recoverable by the Company from the
Preferred Stock Investors under this indemnification provision shall not exceed
the amount of net proceeds received by all Preferred Stock Investor Holders from
the sale of Registrable Securities in connection with any such Registration; and
provided further that the indemnity agreement contained in this Section 2.5.2
shall not apply to amounts paid in settlement of any loss, claim, damage,
liability or action arising pursuant to a Registration if such settlement is
effected without the consent of the Preferred Stock Investors (which consent
shall not be unreasonably withheld). Such indemnity shall remain in full force
and effect regardless of any investigation made by or on behalf of the Company
or any of the prospective sellers, or any of their respective Affiliates,
directors, officers or controlling persons and shall survive the transfer of
such securities by such seller.
2.5.3. Conduct of Indemnification Proceedings. Any person entitled to
indemnification hereunder shall (x) give prompt written notice to the
indemnifying party of any claim with respect to which it seeks indemnification
and (y) 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
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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, unless in the
reasonable judgment of any indemnified party, a conflict of interest may exist
between such indemnified party and any other of such indemnified parties with
respect to such claim, in which event the indemnifying party shall be obligated
to pay the reasonable fees and expenses of such additional counsel or counsels.
2.5.4. Contribution. If for any reason the indemnification provided for
in the preceding Sections 2.5.1 and 2.5.2 is unavailable to an indemnified party
as contemplated by the preceding Sections 2.5.1 and 2.5.2 for any reason, then
the indemnifying party shall contribute to the amount paid or payable by the
indemnified party as a result of such loss, claim, damage or liability in such
proportion as is appropriate to reflect not only the relative benefits received
by the indemnified party and the indemnifying party, but also the relative fault
of the indemnified party and the indemnifying party, as well as any other
relevant equitable considerations. Notwithstanding the foregoing, if the
indemnifying party is any Preferred Stock Investor Holder, any contribution
pursuant to this Section 2.5.4 shall be several and not joint, and shall be
limited to the amount of net proceeds received by such Preferred Stock Investor
Holder from the sale of Registrable Securities in connection with the applicable
Registration.
2.5.5. Other Indemnification. Indemnification similar to that set forth
in the preceding subdivisions of this Section 2.5 (with appropriate
modifications) shall be given by the Company and the Preferred Stock Investors
with respect to any required registration or other qualification of securities
under any Federal or state law or regulation or governmental authority other
than the 1933 Act.
SECTION 2.6. Exchange Act Reports. The Company agrees that it will use
its reasonable best efforts to file in a timely manner all reports required to
be filed by it pursuant to the Exchange Act to the extent the Company is
required to file such reports. Upon request of a Preferred Stock Investor
Holder, the Company will furnish the requesting Preferred Stock Investor Holder
with such information as may be necessary to enable such Preferred Stock
Investor Holder to effect sales pursuant to Rule 144A.
SECTION 2.7 Restrictions on Public Sale by Holder of Securities.
2.7.1. Lock-Up Periods for Selling Holders. To the extent not
inconsistent with applicable law, any Preferred Stock Investor Holder whose
Registrable Securities are included in a Registration relating in whole or in
part to an underwritten public offering agrees not to effect any public sale or
distribution of the issue being registered or any similar security of the
Company, or any securities convertible into or exchangeable or exercisable for
such securities, including a public sale pursuant to Rule 144 under the 1933
Act, during the fourteen (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.
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2.7.2. Lock-Up Periods During Company Offering. Each Preferred Stock
Investor Holder agrees that, in the event the Company files a registration
statement under the 1933 Act with respect to an underwritten public offering of
any shares of Common Stock or Common Stock Equivalents, such Preferred Stock
Investor Holder shall not effect any public sale or distribution of any Common
Stock owned by it (other than as part of such underwritten public offering)
within seven (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 reasonable 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 Preferred Stock
Investor Holder may participate in any Registration hereunder unless such
Preferred Stock Investor Holder (x) agrees to sell such Preferred Stock Investor
Holder's securities on the basis provided in any underwriting arrangements
approved by the persons entitled hereunder to approve such arrangements and (y)
completes and executes all questionnaires, powers of attorney, underwriting
agreements and other documents customarily required under the terms of such
underwriting arrangements.
SECTION 2.9. Remedies. Each Preferred Stock Investor shall have the
right and remedy to have the provisions of Sections 2.1 and 2.2 specifically
enforced by any court having jurisdiction in the event that the Company breaches
such provisions, and the Company shall reimburse the Preferred Stock Investor
for the reasonable costs of the expenses for counsel for the Preferred Stock
Investor incurred in connection with such proceeding.
ARTICLE III
Miscellaneous
SECTION 3.1. Notices. All notices or other communications required or
permitted to be given hereunder shall be in writing and shall be delivered by
hand or sent by prepaid telex, cable or telecopy or sent, postage prepaid, by
registered, certified or express mail or reputable overnight courier service and
shall be deemed given when so delivered by hand, telexed, cabled or telecopied,
or if mailed, three (3) days after mailing (one (1) business day in the case of
express mail or overnight courier service), as follows:
(x) if to the Company, to:
TransMontaigne Inc.
000 Xxxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxx X. Xxxxxxx, Esq.
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with a copy to:
Cravath, Swaine & Xxxxx
Worldwide Plaza
000 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxx X. Xxxxxxxxxx, Esq.
(y) If to a Preferred Stock Investor, to the addresses
indicated on Schedule 1 to the Recapitalization Agreements.
SECTION 3.2. Binding Effect; Benefits. This Agreement shall be binding
upon and inure to the benefit of the parties to this Agreement and their
respective successors and assigns. Nothing in this Agreement, express or
implied, is intended or shall be construed to give any person other than the
parties to this Agreement, the other Preferred Stock Investor Holders, if any,
and their respective successors or assigns any legal or equitable right, remedy
or claim under or in respect of any agreement or any provision contained herein.
This Agreement constitutes the entire agreement and understanding, and
supersedes and terminates all prior agreements and understandings, both oral and
written (including those contained in the letter agreements dated April 17, 2002
between the Company and each Preferred Stock Investor and the Recapitalization
Agreements), between the parties hereto relating to the subject matter hereof.
SECTION 3.3. Waiver. Any party hereto may, by written notice to any
other party (x) extend the time for the performance of any of the obligations or
other actions of such other party under this Agreement to the extent that such
obligations or other actions are due to the party giving notice; (y) waive
compliance with any of the conditions or covenants of such other party contained
in this Agreement to the extent that such conditions or covenants relate to the
party giving notice; and (z) waive or modify performance of any of the
obligations of such other party under this Agreement to the extent that such
obligations are due to the party giving notice. Except as provided in the
preceding sentence, no action taken pursuant to this Agreement, including,
without limitation, any investigation by or on behalf of any party, shall be
deemed to constitute a waiver by the party taking such action of compliance with
any representation, warranty, covenant or agreement contained herein. Neither
the waiver by any party hereto of a breach of any provision hereof or any
preceding or succeeding breach nor the failure by any party to exercise any
right or privilege hereunder shall be deemed a waiver of such party's rights or
privileges hereunder nor shall it be deemed a waiver of such party's rights to
exercise the same at any subsequent time or times hereunder.
SECTION 3.4. Amendments. No amendment, modification or waiver in
respect of this Agreement shall be effective unless it shall be in writing and
signed by the Company and the holders of two-thirds of the Registrable
Securities. Any such amendment, modification or waiver in respect of this
Agreement executed by or on behalf of the Preferred Stock Investors shall bind
Page 50 of __
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each other Preferred Stock Investor Holder, if any, to the terms and conditions
thereof. The Company agrees that all holders of Registrable Securities shall be
notified by the Company in advance of any proposed amendment, modification or
waiver of this Agreement, but failure to give such notice shall not in any way
affect the validity of any such amendment, modification or waiver. In addition,
promptly after obtaining the written consent of the holders as herein provided,
the Company shall transmit a copy of any amendment, modification or waiver which
has been adopted to all holders of Registrable Securities then outstanding, but
failure to transmit copies shall not in any way affect the validity of any such
amendment, modification or waiver.
SECTION 3.5. Assignability. Neither this Agreement nor any right,
remedy, obligation or liability arising hereunder or by reason hereof shall be
assignable by either the Company or any Preferred Stock Investor (other than, in
the case of any Preferred Stock Investor, to a Permitted Affiliate of the
Preferred Stock Investors in connection with a transfer of a portion of the
Preferred Stock Investor Shares), or any transferee of the foregoing.
SECTION 3.6. Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York
applicable to agreements made and to be performed entirely within such State.
SECTION 3.7. Attorney Fees. A party in breach of this Agreement shall,
on demand, indemnify and hold harmless the other parties hereto from and against
all reasonable out-of-pocket expenses, including legal fees, incurred by such
other parties by reason of the enforcement and protection of their rights under
this Agreement. The payment of such expenses is in addition to any other relief
to which such other parties may be entitled.
SECTION 3.8. Section and Other Headings. The section and other headings
contained in this Agreement are for reference purposes only and shall not affect
the meaning or interpretation of this Agreement.
SECTION 3.9. Counterparts. This Agreement may be executed in one or
more counterparts, all of which shall be considered one and the same agreement,
and shall become effective when one or more such counterparts have been signed
by each of the parties and delivered to the other parties.
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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:
[Registration Rights Agreement Signature Page]
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FIRST RESERVE FUND VII,
LIMITED PARTNERSHIP
By: FIRST RESERVE GP VII, L.P.
its general partner
By: FIRST RESERVE CORPORATION
its general partner
By:
--------------------------------
Name:
Title:
FIRST RESERVE FUND VIII, L.P.
By: FIRST RESERVE GP VIII, L.P.
its general partner
By: FIRST RESERVE CORPORATION
its general partner
By:
--------------------------------
Name:
Title:
[Registration Rights Agreement Signature Page]
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VENCAP HOLDINGS (1987) PTE LTD
By:
--------------------------------
Name:
Title:
[Registration Rights Agreement Signature Page]
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55
XXXXXXX US DISCOVERY FUND III, L.P.
By: XXXXXXX US DISCOVERY
PARTNERS, L.P.,
its general partner
By: XXXXXXX US DISCOVERY, LLC.
its general partner
By:
--------------------------------
Name:
Title:
XXXXXXX US DISCOVERY OFFSHORE FUND
III, L.P.
By: XXXXXXX US DISCOVERY
PARTNERS, L.P.,
its general partner
By: XXXXXXX US DISCOVERY, LLC.
its general partner
By:
--------------------------------
Name:
Title:
[Registration Rights Agreement Signature Page]
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XXXXXXXX TRUSTEES ET AL FBO
XXXXXX X. XXXXXXXX, XX. DTD 12/22/97
By:
---------------------------
Name:
Title:
XXXXXXXX TRUSTEES ET AL FBO
XXXXXXX X. XXXXXXXX DTD 12/22/97
By:
---------------------------
Name:
Title:
XXXXXXXX TRUSTEES ET AL FBO
XXXXXX X. XXXXXXXX XX DTD 12/22/97
By:
---------------------------
Name:
Title:
XXXXXXXX TRUSTEES ET AL FBO
XXXXXXX X. XXXXXXXX DTD 12/22/97
By:
---------------------------
Name:
Title:
[Registration Rights Agreement Signature Page]
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CODAN TRUSTEES ET AL FBO
XXXXXXXXXXX X. XXXXXXXX DTD 12/22/97
By:
---------------------------
Name:
Title:
CODAN TRUSTEES ET AL FBO
XXXX X. XXXXXXXX DTD 12/22/97
By:
---------------------------
Name:
Title:
CODAN TRUSTEES ET AL FBO
XXXXXX X. XXXXXXXXXX DTD 12/22/97
By:
---------------------------
Name:
Title:
[Registration Rights Agreement Signature Page]
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58
YORKTOWN ENERGY PARTNERS III, L.P.
By: YORKTOWN III COMPANY, L.L.C.,
its general partner
By:
-------------------------------
Name:
Title:
YORKTOWN PARTNERS, L.L.C.,
as agent
By:
-------------------------------
Name:
Title:
TICONDEROGA E-SERVICES FUND I, LP,
By:
-------------------------------
Name:
Title:
[Registration Rights Agreement Signature Page]
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CFE, INC.
By:
-------------------------------
Name:
Title:
[Registration Rights Agreement Signature Page]
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60
XXXXXXX & CO.
By:
---------------------------
Name:
Title:
XXXXXXX FAMILY FOUNDATION
By:
---------------------------
Name:
Title:
[Registration Rights Agreement Signature Page]
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61
VESTAR CAPITAL PARTNERS III, L.P.
By: Vestar Associates III, L.P.,
its general partner
By: Vestar Associates Corporation
III, its general partner
By:
---------------------------
Name:
Title:
[Registration Rights Agreement Signature Page]
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62
CORTLANDT X. XXXXXXX
----------------------------------
[Registration Rights Agreement Signature Page]
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00
XXXXXXXX X. XXXXX
----------------------------------
[Registration Rights Agreement Signature Page]
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64
XXXXXXXX X. XXXXX TRUST
By:
-------------------------------
Name:
Title:
[Registration Rights Agreement Signature Page]
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65
XXXXX X. XXXXXXX
----------------------------------
[Registration Rights Agreement Signature Page]
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66
XXXXXX X. XXXXXX
----------------------------------
[Registration Rights Agreement Signature Page]
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67
[Form of Institutional Investor Registration Rights Agreement]
Page 67 of __
68
[Form of LDC Registration Rights Agreement]
Page 68 of __
