-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, HrsZtPlEx33bcAlT+q0/ZYf/M9yKoXOK18Pz4G7fLGD7nSTKaxENfEaEXaM5HOV2 0V8ai6DSP5tRZC2kCp0Cyg== 0000895345-03-000694.txt : 20031017 0000895345-03-000694.hdr.sgml : 20031017 20031017134303 ACCESSION NUMBER: 0000895345-03-000694 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20031017 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: TRANSMONTAIGNE INC CENTRAL INDEX KEY: 0000755199 STANDARD INDUSTRIAL CLASSIFICATION: PIPE LINES (NO NATURAL GAS) [4610] IRS NUMBER: 061052062 STATE OF INCORPORATION: DE FISCAL YEAR END: 0630 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-36106 FILM NUMBER: 03945494 BUSINESS ADDRESS: STREET 1: 1670 BROADWAY STREET 2: SUITE 3100 CITY: DENVER STATE: CO ZIP: 80202 BUSINESS PHONE: 3036268200 MAIL ADDRESS: STREET 1: P O BOX 5660 STREET 2: SUITE 3100 CITY: DENVER STATE: CO ZIP: 80217-5660 FORMER COMPANY: FORMER CONFORMED NAME: TRANSMONTAIGNE OIL CO DATE OF NAME CHANGE: 19960724 FORMER COMPANY: FORMER CONFORMED NAME: SHEFFIELD EXPLORATION CO INC DATE OF NAME CHANGE: 19920703 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: LEHMAN BROTHERS HOLDINGS INC CENTRAL INDEX KEY: 0000806085 STANDARD INDUSTRIAL CLASSIFICATION: SECURITY BROKERS, DEALERS & FLOTATION COMPANIES [6211] IRS NUMBER: 133216325 STATE OF INCORPORATION: DE FISCAL YEAR END: 1130 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: LEHMAN BROTHERS STREET 2: 745 SEVENTH AVENUE CITY: NEW YORK STATE: NY ZIP: 10019 BUSINESS PHONE: 2125267000 MAIL ADDRESS: STREET 1: LEHMAN BROTHERS STREET 2: 745 SEVENTH AVENUE CITY: NEW YORK STATE: NY ZIP: 10019 FORMER COMPANY: FORMER CONFORMED NAME: SHEARSON LEHMAN HUTTON HOLDINGS INC DATE OF NAME CHANGE: 19901017 SC 13D 1 sc13d2_lehman.txt SCHEDULE 13D (RULE 13D-101) Information to be Included in Statements Filed Pursuant to Rule 13d-1(a) and Amendments Thereto Filed Pursuant to Rule 13d-2(a) SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 Under the Securities Exchange Act of 1934 (Amendment No. )* TRANSMONTAIGNE INC. - ------------------------------------------------------------------------------- (Name of Issuer) Common Stock, par value $0.01 per share - ------------------------------------------------------------------------------- (Title of Class of Securities) 89393410 ----------------------------------------- (CUSIP Number) Jeffrey A. Welikson, Esq. With a copy to: Secretary David Golay, Esq. Lehman Brothers Holdings Inc. Fried, Frank, Harris, Shriver & Jacobson 399 Park Avenue, 11th Floor One New York Plaza New York, NY 10022 New York, New York 10004 (212) 526-0858 (212) 859-8000 - ------------------------------------------------------------------------------- (Name, Address and Telephone Number of Persons Authorized to Receive Notices and Communications) October 17, 2003 - ------------------------------------------------------------------------------- (Date of Event Which Requires Filing of This Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this Schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box |_|. Note. Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 13d-7 for other parties to whom copies are to be sent. * The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 (the "Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). SCHEDULE 13D CUSIP NO. 89393410 PAGE 2 OF 11 PAGES - -------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSON Lehman Brothers Holdings Inc. S.S. OR I.R.S. IDENTIFICATION NO. OF 13-321632 ABOVE PERSON - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A (a) [ ] GROUP (b) [ ] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS OO - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) [ ] - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION DELAWARE - -------------------------------------------------------------------------------- NUMBER OF 7 SOLE VOTING POWER SHARES 4,865,116 shares of Common Stock --------------------------------------------------------------- BENEFICIALLY 8 SHARED VOTING POWER OWNED BY -0- --------------------------------------------------------------- EACH 9 SOLE DISPOSITIVE POWER REPORTING 4,865,116 shares of Common Stock --------------------------------------------------------------- PERSON 10 SHARED DISPOSITIVE POWER WITH -0- - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 4,865,116 shares of Common Stock - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 10.7% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON HC/CO - -------------------------------------------------------------------------------- SCHEDULE 13D CUSIP NO. 89393410 PAGE 3 OF 11 PAGES - -------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSON Lehman Brothers Inc. S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE 13-2518466 PERSON - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A (a) [ ] GROUP (b) [ ] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS OO - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) [ ] - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION DELAWARE - -------------------------------------------------------------------------------- NUMBER OF 7 SOLE VOTING POWER SHARES 4,865,116 shares of Common Stock --------------------------------------------------------------- BENEFICIALLY 8 SHARED VOTING POWER OWNED BY -0- --------------------------------------------------------------- EACH 9 SOLE DISPOSITIVE POWER REPORTING 4,865,116 shares of Common Stock --------------------------------------------------------------- PERSON 10 SHARED DISPOSITIVE POWER WITH -0- - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 4,865,116 shares of Common Stock - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 10.7% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON HC/CO - -------------------------------------------------------------------------------- SCHEDULE 13D CUSIP NO. 89393410 PAGE 4 OF 11 PAGES - -------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSON LB I Group Inc. S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE 13-2741778 PERSON - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A (a) [ ] GROUP (b) [ ] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS OO - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) [ ] - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION DELAWARE - -------------------------------------------------------------------------------- NUMBER OF 7 SOLE VOTING POWER SHARES 4,862,878 shares of Common Stock --------------------------------------------------------------- BENEFICIALLY 8 SHARED VOTING POWER OWNED BY -0- --------------------------------------------------------------- EACH 9 SOLE DISPOSITIVE POWER REPORTING 4,862,878 shares of Common Stock --------------------------------------------------------------- PERSON 10 SHARED DISPOSITIVE POWER WITH -0- - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 4,862,878 shares of Common Stock - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 10.7% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON HC/CO - -------------------------------------------------------------------------------- ITEM 1. SECURITY AND ISSUER This statement relates to the Common Stock, par value $0.01 (the "Common Stock"), of TransMontaigne Inc., a Delaware corporation (the "Company"). The address of the principal executive offices of the Company is 370 Seventeenth Street, Suite 2750, Denver, Colorado 80202. ITEM 2. IDENTITY AND BACKGROUND This statement is filed on behalf of the following entities (the "Reporting Persons"): Lehman Brothers Holdings Inc., a Delaware corporation ("Holdings"), 745 Seventh Avenue New York, NY 10019 Holdings is one of the leading global investment banks, serving institutional, corporate, government and high net-worth clients and customers. Holdings is the parent of Lehman Brothers Inc. Lehman Brothers Inc., a Delaware corporation ("LBI"), 745 Seventh Avenue New York, NY 10019 LBI, a broker-dealer registered under Section 15 of the Securities Exchange Act of 1934, as amended, is a wholly owned subsidiary of Holdings and is the parent of LB I Group Inc. LB I Group Inc., a Delaware corporation ("LB I Group"), 745 Seventh Avenue New York, NY 10019 LB I Group is a wholly owned subsidiary of Lehman. The names, residence or business addresses, citizenships and present principal occupations or employment of the senior executive officers and directors of the Reporting Persons are set forth in Appendix A hereto. Neither the Reporting Persons nor, to the best knowledge of the Reporting Persons, any of the persons listed in Appendix A hereto have during the last five years (i) been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or (ii) except as set forth in Appendix B attached hereto and incorporated herein by reference has been party to a civil proceeding of a judicial or administrative body of a competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws. ITEM 3. SOURCE OF FUNDS OR OTHER CONSIDERATION See Item 4 below. ITEM 4. PURPOSE OF TRANSACTION On October 9, 2003, LB I Group entered into a Stock Purchase Agreement (the "Purchase Agreement") with First Reserve Fund VII, Limited Partnership, a Delaware limited partnership, and First Reserve Fund VIII, L.P., a Delaware limited partnership (together, the "Sellers"), pursuant to which LB I Group acquired from the Sellers 32,095 shares of the Company's Series B Convertible Preferred Stock, par value $0.01 per share (the "Preferred Stock") for $920.00 per Share, plus the cash amount of dividends on each Share that were accrued (whether or not declared), for an aggregate purchase price of $29,575,542.50, in accordance with the terms of and conditions to the Purchase Agreement. The source of such funds was the working capital of LB I Group. As of October 9, 2003, the Shares were convertible into 4,862,878 shares of Common Stock at a conversion price of $6.60 per share of Common Stock. In connection with the Purchase Agreement, Ben A. Guill, one of designees of the Sellers serving as a member of the board of directors of the Company (the "Board"), resigned as a member of the Board, and David J. Butters, LB I Group's designee, was elected by the Board to serve as a member of the Board until his successor is duly elected and qualified. Furthermore, pursuant to a letter agreement (the "Letter Agreement"), dated October 9, 2003, from the Company to LB I Group, the Company agreed to nominate Mr. Butters to stand for re-election to the Board at the Company's 2003 annual meeting of stockholders. In the Letter Agreement, the Company further agreed to include Mr. Butters, or such other designee of LB I Group as LB I Group may determine, on the slate of directors recommended by the Company, and to oppose any proposal to remove such designee, at each meeting of stockholders at which the election or removal of directors is on the agenda. The Letter Agreement further provides that the Company's obligations thereunder will cease when LB I Group no longer beneficially owns at least 5% of the Company's outstanding common stock (including outstanding common equivalents) (the "Board Termination Event"). The Letter Agreement also provides that, upon the occurrence of the Board Termination Event, LB I Group's right to designate a member of the Board and the Company's obligations with respect thereto shall cease and LB I Group will cause such designee to resign from the Board. The Shares were purchased to acquire an equity interest in the Company in pursuit of specified investment objectives of the Reporting Persons. The Reporting Persons intend to continually evaluate the Company's business, prospects, financial condition, the market for the Shares, other opportunities available to the Reporting Persons, general economic conditions, money and stock market conditions and other factors and future developments that the Reporting Persons may deem relevant from time to time. Depending on such factors, the Reporting Persons may decide to acquire additional securities of the Company or sell all or part of the Shares. Any such acquisition or disposition may be effected through open market or privately negotiated transactions, or otherwise. The foregoing description of the Stock Purchase Agreement and the Letter Agreement is not intended to be complete and is qualified in its entirety by the complete text of such agreements which are incorporated herein by reference. The Stock Purchase Agreement is filed as Exhibit 1 hereto and the Letter Agreement is filed as Exhibit 2 hereto. Except as set forth above, none of the Reporting Persons nor, to the knowledge of any Reporting Person, any person identified in Appendix A, has any plans or proposals which relate to or would result in the types of transactions set forth in subparagraphs (a) through (j) of Item 4 of Schedule 13D. ITEM 5. INTEREST IN SECURITIES OF THE ISSUER (a) According to the Company's preliminary proxy statement (the "Preliminary Proxy Statement") filed with the Securities and Exchange Commission on October 3, 2003, there were 40,681,030 outstanding shares of Common Stock as of September 22, 2003, the record date for the determination of stockholders entitled to vote at the Company's 2003 annual meeting of stockholders. As a result of the transactions consummated pursuant to the Purchase Agreement, LBI and Holdings became the indirect owners of the Shares and LB I Group became the direct beneficial owner of the Shares. In addition, LBI had been the direct beneficial owner, and Holdings had been the indirect beneficial owner, of 2,238 shares of Common Stock. Accordingly, the percentage of the shares of Common Stock beneficially owned by each Reporting Person is indicated in Item 13 of the cover page relating to such Reporting Person. In addition, based upon the number of outstanding shares of Preferred Stock reported in the Preliminary Proxy Statement, the Shares represent 44.0% of the outstanding shares of Preferred Stock. Furthermore, the holders of record of shares of Preferred Stock vote together with the holders of record of shares of Common Stock and the holders of record of shares of the Company's Series A Preferred Stock as a single class on all actions to be voted on by the stockholders of the Company, other than the election of directors. To the best knowledge of the Reporting Persons, none of the persons listed on Appendix A (i) beneficially owns any Common Stock (other than in his capacity as an executive officer or director of such corporations) or (ii) has the right to acquire any Common Stock. (b) Each Reporting Person has sole power to vote and dispose of all of the shares of Common Stock which such Reporting Person beneficially owns. To the best knowledge of the Reporting Persons, none of their respective executive officers or directors has the power to vote or to direct the vote or to dispose or to direct the disposition of the Common Stock beneficially owned by such corporations (other than in his or her capacity as an executive officer or director of such corporations). (c) Holdings and its affiliates in the ordinary course of business as broker dealers may have purchased and sold shares of Common Stock on behalf of their customers. (d) Neither the Reporting Persons nor, to the best knowledge of the Reporting Persons, any person listed in Appendix A hereto know of any other person who has the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, any shares of Common Stock beneficially owned by the Reporting Persons, other than customers of LBI over whose shares LBI may have investment discretion. (e) Not applicable. ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER In connection with the Purchase Agreement, LB I Group became a party to the Company's Amended and Restated Preferred Stock Investor Registration Rights Agreement, dated as of June 27, 2002 (the "Registration Rights Agreement"), the Company's Stockholders' Agreement, dated June 27, 2002 (the "Stockholders' Agreement") and the Company's Preferred Stock Recapitalization Agreement, dated June 27, 2002 (the "Recapitalization Agreement"). Under the Registration Rights Agreement, LB I Group obtained certain piggyback and demand registration and other rights pursuant to which LB I Group may cause the Company to register any of its shares of Common Stock issued upon conversion of the Shares under the Securities Act of 1933, as amended, subject to the terms of and conditions to the Registration Rights Agreement. Under the Registration Rights Agreement, any one or more Preferred Stock Investor Holders (as defined therein) holding Registrable Securities (as defined therein) representing five percent (5%) or more in the aggregate of the then outstanding Common Stock (assuming conversion or exercise of all Common Stock Equivalents (as defined therein) held by the Preferred Stock Investor Holders into Registrable Securities at the then conversion price or exercise price) may request four (4) demand registrations, subject to the terms and conditions therein. Under the Stockholders' Agreement, subject to the terms and conditions therein, in the event that any Key Senior Executive (as defined therein) proposes to transfer any shares of Common Stock in excess of the amounts and during the time periods specified therein (other than pursuant to a transaction open to all holders of Common Stock) to any person, as a condition to such transfer, such Key Senior Executive is required to cause the buyer to offer to purchase from each Investor (as defined therein), at each such Investor's option, up to that number of shares determined in accordance with the terms therein on the same terms and conditions as are applicable to the transferor's shares. The Stockholders' Agreement also provides that, subject to the terms and conditions therein, so long as at least 50% (on an individual or aggregate basis) of the shares of Common Stock beneficially owned by the Investors or their affiliates as of the date thereof remain beneficially owned by such Investors (as defined therein) or such affiliates during the five year period beginning on the date thereof and ending on the fifth anniversary of such date, each Key Senior Executive agrees not to transfer, in any transaction or series of transactions during such period, that number of shares of Common Stock that represents in excess of thirty five percent (35%) of the aggregate number of shares of Common Stock (calculated by treating all options held by such Key Senior Executive to purchase shares of Common Stock as exercised) held by such Key Senior Executive as of June 30, 2002, and shares acquired subsequent to such date, as adjusted to reflect any stock split, stock dividend, recapitalization or similar event after June 30, 2002 (other than in compliance with terms thereof or in a transaction open to all holders of Common Stock). In connection with the Purchase Agreement, the requisite number of Investors (as defined therein) and the Company agreed that so long as the Shares are beneficially owned by LB I Group, the Shares shall be treated as though they continued to be beneficially owned by the original Investors (as defined therein). Under the Recapitalization Agreement, subject to the terms and conditions therein, the Company agreed to comply with certain covenants, including certain affirmative covenants that require the Company to, and to cause each of its subsidiaries to, maintain its corporate existence and tangible assets in good repair, comply with all applicable laws, promptly pay its taxes and keep adequate insurance, each as therein provided. The Recapitalization Agreement also provided that, subject to the terms and conditions therein, the Investors (as defined therein) would receive certain financial information of the Company as well as certain inspection rights and the right to communicate with the senior management and the accountants of the Company, each as therein provided. The Recapitalization Agreement also included certain negative covenants that, subject to the terms and conditions therein, prohibit the Company from (a) issuing any shares or class or series of equity or equity-linked security, which is senior to, or pari passu with, the Preferred Stock as to dividend payments or amounts payable in the event of liquidation or winding-up of the Company other than any additional shares of Series A Preferred Stock issued as dividends on the Series A Preferred Stock and any additional shares of Preferred Stock issued as dividends on the Preferred Stock, (b) except as provided therein, redeeming, repurchasing or otherwise acquiring, either directly or indirectly through any of its subsidiaries, any shares of capital stock of the Company, or any other rights or options to subscribe for or purchase any capital stock of the Company and (c) permitting the par value or the determined or stated value of any shares of Common Stock receivable upon the conversion of the shares of Preferred Stock acquired pursuant to the Recapitalization Agreement (or other recapitalization agreements between the Company and other Investors (as defined therein)) to exceed the amount payable therefor upon such conversion. In connection with the Purchase Agreement, David J. Butters became a director of the Company. See Item 4 above. The foregoing description of the Registration Rights Agreement, the Stockholders' Agreement and the Recapitalization Agreement is not intended to be complete and is qualified in its entirety by the complete text of such agreements which are incorporated herein by reference. The Registration Rights Agreement is filed as Exhibit 3 hereto, the Stockholders' Agreement is filed as Exhibit 4 hereto and the Recapitalization Agreement is filed as Exhibit 5 hereto. ITEM 7. MATERIAL TO BE FILED AS EXHIBITS 1. Stock Purchase Agreement, dated as of October 9, 2003, by and among the Sellers on one hand, and LBI on the other hand. 2. Letter Agreement, dated as of October 9, 2003, from the Company to LBI. 3. The Company's Amended and Restated Preferred Stock Investor Registration Rights Agreement, dated as of June 27, 2002 (incorporated by reference to Exhibit 99.5 of the Company's Current Report on Form 8-K filed on July 15, 2002). 4. The Company's Stockholders' Agreement, dated June 27, 2002 (incorporated by reference to Exhibit 99.8 of The Company's Current Report on Form 8-K filed on July 15, 2002). 5. The Company's Recapitalization Agreement, dated June 27, 2002 (incorporated by reference to Exhibit 99.3 of The Company's Current Report on Form 8-K filed on July 15, 2002). SIGNATURES After reasonable inquiry and to the best of its knowledge and belief, each of the undersigned certifies that the information set forth in this statement is true, complete and correct. Dated: October 17, 2003 LEHMAN BROTHERS HOLDINGS INC. By: /s/ Barrett S. DiPaolo ------------------------------- Name: Barrett S. DiPaolo Title: Senior Vice President LEHMAN BROTHERS INC. By: /s/ Barrett S. DiPaolo ------------------------------- Name: Barrett S. DiPaolo Title: Senior Vice President LB I GROUP INC. By: /s/ Barrett S. DiPaolo ------------------------------- Name: Barrett S. DiPaolo Title: Senior Vice President APPENDIX A LEHMAN BROTHERS HOLDINGS INC. BOARD OF DIRECTORS NAME / TITLE BUSINESS ADDRESS - ------------ ---------------- MICHAEL L. AINSLIE Lehman Brothers Holdings Inc. Private Investor and former President and 745 Seventh Avenue Chief Executive Officer of Sotheby's Holdings New York, New York 10019 JOHN F. AKERS Lehman Brothers Holdings Inc. Retired Chairman of 745 Seventh Avenue International Business Machines New York, New York 10019 Corporation ROGER S. BERLIND Lehman Brothers Holdings Inc. Theatrical Producer 745 Seventh Avenue New York, New York 10019 THOMAS H. CRUIKSHANK Lehman Brothers Holdings Inc. Retired Chairman and Chief 745 Seventh Avenue Executive Officer of Halliburton Company New York, New York 10019 RICHARD S. FULD, JR. Lehman Brothers Holdings Inc. Chairman and Chief Executive 745 Seventh Avenue Officer of New York, New York 10019 Lehman Brothers Holdings Inc. HENRY KAUFMAN Lehman Brothers Holdings Inc. President of Henry Kaufman & Company, Inc. 745 Seventh Avenue New York, New York 10019 JOHN D. MACOMBER Lehman Brothers Holdings Inc. Principal of JDM Investment Group 745 Seventh Avenue New York, New York 10019 DINA MERRILL Lehman Brothers Holdings Inc. Director and Vice 745 Seventh Avenue Chairman of RKO Pictures, Inc. and Actress New York, New York 10019 SIR CHRISTOPHER GENT Lehman Brothers Holdings Inc. Former Chief Executive Officer 745 Seventh Avenue of Vodafone Plc New York, New York 10019 All of the above individuals are citizens of the United States, except for Sir Christopher Gent, who is a citizen of the United Kingdom. LEHMAN BROTHERS HOLDINGS INC. EXECUTIVE OFFICERS NAME / TITLE BUSINESS ADDRESS - ------------ ---------------- RICHARD S. FULD, JR. Lehman Brothers Holdings Inc. Chairman and Chief Executive Officer 745 Seventh Avenue of Lehman Brothers Holdings Inc. New York, New York 10019 DAVID GOLDFARB Lehman Brothers Holdings Inc. Chief Financial Officer 745 Seventh Avenue New York, New York 10019 JOSEPH M. GREGORY Lehman Brothers Holdings Inc. Chief Administrative Officer 745 Seventh Avenue New York, New York 10019 JONATHAN E. BEYMAN Lehman Brothers Holdings Inc. Chief of Operations and Technology 745 Seventh Avenue New York, New York 10019 THOMAS A. RUSSO Lehman Brothers Holdings Inc. Chief Legal Officer 745 Seventh Avenue New York, New York 10019 BRADLEY H. JACK Lehman Brothers Holdings Inc. Head of Investment Banking 745 Seventh Avenue Division New York, New York 10019 All of the above individuals are citizens of the United States. LEHMAN BROTHERS INC. BOARD OF DIRECTORS NAME / TITLE BUSINESS ADDRESS - ------------ ---------------- HOWARD L. CLARK, JR. Lehman Brothers Holdings Inc. Vice Chairman 745 Seventh Avenue New York, New York 10019 THOMAS H. CRUIKSHANK Lehman Brothers Holdings Inc. Retired Chairman and Chief 745 Seventh Avenue Executive Officer of New York, New York 10019 Halliburton Company FREDERICK FRANK Lehman Brothers Holdings Inc. Vice Chairman 745 Seventh Avenue New York, New York 10019 RICHARD S. FULD, JR. Lehman Brothers Holdings Inc. Chairman and Chief Executive 745 Seventh Avenue Officer of Lehman Brothers New York, New York 10019 Holdings Inc. HARVEY M. KRUEGER Lehman Brothers Holdings Inc. Vice Chairman 745 Seventh Avenue New York, New York 10019 SHERMAN R. LEWIS, JR. Lehman Brothers Holdings Inc. Vice Chairman 745 Seventh Avenue New York, New York 10019 All of the above individuals are citizens of the United States LEHMAN BROTHERS INC. EXECUTIVE OFFICERS NAME / TITLE BUSINESS ADDRESS - ------------ ---------------- RICHARD S. FULD, JR. Lehman Brothers Holdings Inc. Chairman and Chief Executive Officer 745 Seventh Avenue New York, New York 10019 DAVID GOLDFARB Lehman Brothers Holdings Inc. Chief Financial Officer 745 Seventh Avenue New York, New York 10019 JOSEPH M. GREGORY Lehman Brothers Holdings Inc. Chief Operating Officer 745 Seventh Avenue New York, New York 10019 BRADLEY H. JACK Lehman Brothers Holdings Inc. Chief Operating Officer 745 Seventh Avenue New York, New York 10019 THOMAS A. RUSSO Lehman Brothers Holdings Inc. Chief Legal Officer 745 Seventh Avenue New York, New York 10019 All of the above individuals are citizens of the United States. LB I GROUP INC. BOARD OF DIRECTORS NAME / TITLE BUSINESS ADDRESS - ------------ ---------------- DAVID GOLDFARB Lehman Brothers Holdings Inc. Director 745 Seventh Avenue New York, New York 10019 ROCCO F. ANDRIOLA Lehman Brothers Holdings Inc. Director 745 Seventh Avenue New York, New York 10019 All of the above individuals are citizens of the United States. LB I GROUP INC. EXECUTIVE OFFICERS NAME / TITLE BUSINESS ADDRESS - ------------ ---------------- DEXTER E SENFT Lehman Brothers Holdings Inc. Managing Director 745 Seventh Avenue New York, New York 10019 MICHAEL I BRILL Lehman Brothers Holdings Inc. Senior Vice President 745 Seventh Avenue New York, New York 10019 MICHAEL J KONIGSBERG Lehman Brothers Holdings Inc. Senior Vice President 745 Seventh Avenue New York, New York 10019 EDWARD B MCGEOUGH Lehman Brothers Holdings Inc. Senior Vice President 745 Seventh Avenue New York, New York 10019 BRIAN P WADE Lehman Brothers Holdings Inc. Senior Vice President 745 Seventh Avenue New York, New York 10019 JARETT WAIT Lehman Brothers Holdings Inc. Senior Vice President 745 Seventh Avenue New York, New York 10019 ALAN WASHKOWITZ Lehman Brothers Holdings Inc. Senior Vice President 745 Seventh Avenue New York, New York 10019 JEFFREY S WECKER Lehman Brothers Holdings Inc. Senior Vice President 745 Seventh Avenue New York, New York 10019 All of the above individuals are citizens of the United States. APPENDIX B Lehman and its affiliates have been involved in a number of civil proceedings which concern matters arising in connection with the conduct of their businesses. Certain of such proceedings have resulted in findings of violation of federal or state securities laws. Each of these proceedings was settled by Lehman or its affiliate consenting to the entry of an order without admitting or denying the allegations in the complaint. All of such proceedings are reported and summarized in the Schedule D to Lehman's Form BD filed with the Securities and Exchange Commission, which descriptions are hereby incorporated by reference. EX-99.1 3 ex99_1.txt STOCK PURCHASE AGREEMENT THIS STOCK PURCHASE AGREEMENT (this "Agreement"), is made and entered into as of this 9th day of October, 2003, by and among First Reserve Fund VII, Limited Partnership, a Delaware limited partnership ("Fund VII") and First Reserve Fund VIII, L.P., a Delaware limited partnership ("Fund VIII," and with Fund VII, "Sellers"), on the one hand, and LB I Group Inc. ("Buyer"), on the other hand. WHEREAS, Fund VII is owner of 12,345 shares (the "Fund VII Shares") of the Series B Convertible Preferred Stock, par value $0.01 per share ("Preferred Stock") of TransMontaigne Inc., a Delaware corporation (the "Company"), as such Preferred Stock is described in the TransMontaigne Inc. Certificate of Designations of Series B Convertible Preferred Stock, filed with the Secretary of State of the State of Delaware on July 15, 2002 (the "Certificate"); WHEREAS, Fund VIII is the owner of 19,750 shares of Preferred Stock (the "Fund VIII Shares" and with the Fund VII Shares, the "Shares"); and WHEREAS, Sellers desire to sell and transfer the Shares to Buyer, and Buyer desires to purchase the Shares from Sellers; NOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants herein contained, Sellers and Buyer agree as follows: 1. PURCHASE AND SALE OF SHARES. --------------------------- 1.1 CALCULATION OF PURCHASE PRICE. On the terms and conditions set forth herein, at the Closing, the Sellers will sell the Shares to Buyer, free and clear of all liens, pledges, encumbrances and claims whatsoever, and Buyer will purchase the Shares from Sellers. The per share purchase price for the Shares (the "Per Share Price") shall be equal to (a) $920.00 plus (b) the cash amount of dividends on a Share that are accrued (whether or not declared) in accordance with the terms of Section 2(a)(i) of the Certificate but that remain unpaid as of the Closing Date. 1.2 CLOSING; PURCHASE AND SALE OF SHARES. The closing of the transaction herein contemplated (the "Closing") shall take place at the offices of First Reserve Corporation, One Lafayette Place, Greenwich, Connecticut 06830. The Closing shall take place immediately following satisfaction or waiver of the conditions set forth in Section 1.3 (the "Closing Date"). At the Closing, Sellers shall transfer the Shares by delivering to Buyer certificates representing the Shares, together with duly executed stock powers. At the Closing, Buyer shall pay to Fund VII the sum equal to the Per Share Price multiplied by the number of Fund VII Shares, and shall pay to Fund VIII the sum equal to the Per Share Price multiplied by the number of Fund VIII Shares (collectively with the amount paid to Fund VII, the "Purchase Price"). Assuming the Closing Date is on the date hereof, the Per Share Price will be equal to $921.50, resulting in total consideration of $11,375,917.50 payable to Fund VII, and $18,199,625.00 payable to Fund VIII. Payments of the Purchase Price shall be made in cash by wire transfers to accounts of Sellers specified in advance of the Closing Date. 1.3 CONDITIONS TO CLOSING. (a) The obligation of Buyer to consummate the purchase and sale of the Shares as contemplated hereby is subject to the satisfaction on or before the Closing Date of the conditions set forth below, any of which may be waived in writing: (i) no preliminary or permanent injunction or other order of any court or other governmental entity shall be in effect or threatened nor shall there be in effect any statute, rule, regulation or executive order promulgated or enacted by any governmental entity that, in any such case, prevents the consummation of the transactions contemplated by this Agreement; and no suit, action, claim, proceeding or investigation before any governmental entity shall have been commenced or threatened by any person or entity seeking to prevent the sale of the Shares or asserting that the sale of all or a portion of the Shares would be unlawful; (ii) the representations and warranties of each Seller contained in this Agreement shall be true and correct in all respects on and as of the Closing Date with the same force and effect as though such representations and warranties had been made or given on and as of the Closing Date; and each and all of the agreements and covenants of each Seller to be performed or complied with by it on or before the Closing Date pursuant to this Agreement shall have been performed or complied with in all respects; (iii) the 15-day advance notice provisions of Section 10(a) of the Certificate (the "Advance Notice") shall have been satisfied by Sellers, or waived by the Company pursuant to the Letter Agreement (defined below); (iv) there shall not have been any event or occurrence that has or is reasonably likely to have a material adverse effect on the business, operations, assets, properties, prospects or material customer relationships of the Company; (v) Buyer shall have received an executed letter agreement from the Company, in the form attached hereto as Exhibit A (the "Letter Agreement"), which Letter Agreement shall contain, among other things, the Company's agreement and acknowledgement (the "Recapitalization Agreement") to the effect that for all purposes of the Preferred Stock Recapitalization Agreements, dated June 27, 2002, between the Company and each of Fund VII and Fund VIII (the "Preferred Stock Recapitalization Agreements," together with the Stockholders' Agreement (defined below) and the Registration Rights Agreement (defined below), the "Investor Documents") (i) Buyer is the "Investor" and an "Institutional Investor" (each as defined in the Preferred Stock Recapitalization Agreements) and (ii) Buyer has all of the rights of the "Investor" and an "Institutional Investor" under the Preferred Stock Recapitalization Agreements, including without limitation such rights provided in Sections 4, 7.1, 7.2, 7.3, 7.4, 7.5, 10, 11 and 13 thereof; (vi) Seller shall have caused one of its designees ("Seller Designee") serving as a member of the board of directors of the Company (the "Board") to resign as a member of the Board; (vii) A majority of the members of the Board, immediately after the resignation of Seller Designee, shall have duly elected David Butters or such other designee of Buyer as Buyer may determine to serve as a member of the Board in accordance with the certificate of incorporation and by-laws of the Company and such election shall be evidenced by a consent in writing, which consent shall have been delivered to Buyer; (viii) Each party to the Stockholders' Agreement, dated June 28, 2002, among the Company, various investors, including Sellers, and certain employees of the Company (the "Stockholders' Agreement"), shall have executed and delivered to Buyer a written consent (the "Stockholders' Consent") in a form satisfactory to Buyer to the effect that such party agrees and acknowledges that for all purposes of the Stockholders' Agreement (i) Buyer is an "Investor" and a member of the "Investor Group" (each as defined in the Stockholders' Agreement"), (ii) the Shares are "Investor Shares" (as defined in the Stockholders' Agreement), (iii) for purposes of the calculation required by Section 3 of the Stockholders' Agreement, so long as the Shares are owned beneficially by Buyer or its affiliates, the Shares shall be treated as though they continued to be beneficially owned by the original Investors (as defined in the Stockholders' Agreement) and (iv) Buyer has all of the rights of the "Investor" and a member of the "Investor Group" under the Stockholders' Agreement, including without limitation such rights provided in Sections 2 and 3 thereof; and (ix) The Company and the holders of two-thirds of the Registrable Securities (as defined in the Amended and Restated Preferred Stock Investor Registration Rights Agreement, dated June 28, 2002, among the Company and various investors, including Fund VII and Fund VIII (the "Registration Rights Agreement")), together with the requisite parties to the Company's Amended and Restated Institutional Investor Registration Rights Agreement, dated as of June 27, 2002, and the requisite parties to the Company's Amended and Restated Louis Dryfus Corporation Registration Rights Agreement, dated as of June 27, 2002, shall have executed and delivered to Buyer a written consent (the "Registration Rights Consent") in a form satisfactory to Buyer to the effect that such party agrees and acknowledges that for all purposes of the Registration Rights Agreement (i) Buyer is a "Series B Investor" and a "Preferred Stock Investor" (each as defined in the Registration Rights Agreement), (ii) the Shares are "Registrable Securities" and "Series B Investor Shares" (each as defined in the Registration Rights Agreement) and (iii) Buyer has all of the rights of a "Series B Investor" and "Preferred Stock Investor" under the Registration Rights Agreement, including without limitation such rights provided in Sections 2.1, 2.2, 2.3, 2.4 and 2.5 thereof. (b) The obligation of Sellers to consummate the purchase and sale of the Shares as contemplated hereby is subject to the satisfaction on or before the Closing Date of the conditions set forth below, any of which may be waived in writing: (i) no preliminary or permanent injunction or other order of any court or other governmental entity shall be in effect or threatened nor shall there be in effect any statute, rule, regulation or executive order promulgated or enacted by any governmental entity that, in any such case, prevents the consummation of the transactions contemplated by this Agreement; and no suit, action, claim, proceeding or investigation before any governmental entity shall have been commenced or threatened by any person or entity seeking to prevent the sale of the Shares or asserting that the sale of all or a portion of the Shares would be unlawful; (ii) the representations and warranties of Buyer contained in this Agreement shall be true and correct in all material respects on and as of the Closing Date with the same force and effect as though such representations and warranties had been made or given on and as of the Closing Date; and each and all of the agreements and covenants of Buyer to be performed or complied with by it on or before the Closing Date pursuant to this Agreement shall have been performed or complied with in all respects; and (iii) the Advance Notice shall have been satisfied by Sellers, or waived by the Company. 1.4 TERMINATION. The obligations of the parties to close the transactions contemplated by this Agreement may be terminated: (a) at any time, by mutual consent of the Sellers and Buyer; (b) by Buyer, if it is not in material breach of this Agreement and any of the conditions set forth in 1.3(a) are incapable of being satisfied prior to October 31, 2003 (the "Termination Date"); or (c) by Buyer or Sellers, if the terminating party is not in material breach of this Agreement and the Closing Date has not occurred by the Termination Date. If the obligation to close the transactions contemplated by this Agreement is terminated pursuant to any provision of this Section 1.4, then this Agreement shall forthwith become void and there shall not be any liability or obligation with respect to the terminated provisions of this Agreement on the part of the Sellers or Buyer except and to the extent such termination results from the willful breach by a party of any of its representations, warranties or agreements hereunder. 2. REPRESENTATIONS AND WARRANTIES. ------------------------------ 2.1 BY SELLERS The Sellers represent and warrant to Buyer that: (a) Power, Authority, Etc. Each Seller has the requisite power and authority to execute, deliver and perform this Agreement and to consummate the transactions contemplated herein. Each Seller's execution, delivery and performance of this Agreement has been duly authorized by all requisite action. This Agreement will, when executed and delivered by each Seller, constitute the legal, valid and binding obligation of that Seller, enforceable in accordance with its terms. (b) Ownership of Shares. The Shares are validly issued and outstanding, fully paid and non-assessable, free and clear of all liens, proxies, taxes, rights (including rights of first offer and tag along rights) or other encumbrances, and not subject to pre-emptive, participation or similar rights of the stockholders of the Company or others. Each Seller is the record and beneficial owner of the Shares attributed to it in the Recitals to this Agreement and, upon Closing, each Seller is transferring the Shares attributed to it in the Recitals to Buyer free and clear of all liens, proxies, taxes, mortgages, pledges, security interests, restrictions, agreements with respect to voting, prior assignments, encumbrances, options, rights (including rights of first refusal and tag-along rights) and claims of any kind or nature whatsoever, except as set forth in the Certificate, this Agreement, any Investor Document or the Letter Agreement. Promptly following execution of this Agreement, Sellers will deliver the Advance Notice to the Company. (c) Conflicting Agreements and Charter Provisions. Neither the execution and delivery of this Agreement nor the fulfillment of and compliance with the terms and provisions hereof will conflict with or result in a breach of the terms, conditions or provisions of, or give rise to a right of termination under, or constitute a default under, or result in any violation of the Certificate, either Seller's certificate of incorporation or by-laws (or any similar document of corporate governance) or any mortgage, agreement, instrument, order, judgment, decree, statute, law, rule or regulation to which either Seller or any of its respective properties is subject. (d) Governmental Consents, Etc. Except for any notification that may be required under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, neither Seller is required to obtain any consent, approval or authorization of, or to make any declaration or filing with, any governmental authority as a condition to or in connection with the valid execution, delivery and performance of this Agreement, or the performance by the Sellers of their obligations in respect thereof. (e) Form 10-K. To the actual knowledge of the Sellers, the information contained or incorporated by reference in the Company's Annual Report on Form 10-K for the fiscal year ending June 30, 2003 (the "10-K"), as filed with the Securities and Exchange Commission on September 29, 2003, was true and correct in all material respects as of the date of its filing and, as of such date, the 10-K did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. The "actual knowledge" of Sellers shall mean the actual conscious knowledge of Ben Guill or John Hill, and specifically excludes any facts of which Messrs. Guill or Hill reasonably should have been aware, whether as the result of due inquiry or otherwise. Except as set forth above, Sellers are making no representations or warranties, express or implied, of any nature regarding the Company, the Shares or the transactions contemplated hereby. 2.2 BY BUYER. (a) Buyer represents and warrants to Sellers that Buyer has the requisite power and authority to execute, deliver and perform this Agreement and to consummate the transactions contemplated herein, that Buyer's execution, delivery and performance of this Agreement has been duly authorized by all requisite action on the part of Buyer and that this Agreement will, when executed and delivered by Buyer, constitute the legal, valid and binding obligation of Buyer, enforceable against Buyer in accordance with its terms. (b) Buyer represents and warrants to each Seller that Buyer is an "accredited investor" as defined in the rules promulgated under Securities Act of 1933, as amended (the "Act"), that the Shares are being acquired for investment purposes and not with a view to, or in connection with, the sale or distribution thereof, and that Buyer understands that the sale of the Shares to Buyer has not been registered under the Act. Buyer acknowledges that upon consummation of the transactions contemplated by this Agreement, the Shares will be "restricted securities" within the meaning of Rule 144(a)(3) under the Act. Buyer agrees that it will not sell or otherwise dispose of any Shares or equity securities received upon the conversion thereof unless the sale or disposal of such securities has been registered under the Act or such sale or disposal is made pursuant to an applicable exemption from such registration requirements. Buyer agrees that the certificate or certificates representing the Shares shall bear a legend that such shares have not been registered under the Act or any state securities laws and any additional legend required under any of the Investor Documents assigned to Buyer. Buyer agrees that, in order to ensure compliance with the restrictions referred to herein, the Company may issue appropriate "stop transfer" instructions to its transfer agent, unless Buyer's proposed transfer is in compliance with applicable securities laws, for purposes of the foregoing. Buyer acknowledges that the Company shall not be required (i) to transfer on its books any Shares that are or have been sold or otherwise transferred in violation of any of the provisions of this Agreement or any Investor Document to which Buyer is or becomes a party or (ii) to treat as owner of such Shares or to accord the right to vote or pay dividends to any transferee(s) to whom such Shares may have been so transferred. (c) Buyer represents that it is a sophisticated investor and has sufficient knowledge and information available to it with regard to any investment decision in respect of the Shares. 3. SELLERS' COVENANTS AND AGREEMENTS. Each Seller hereby agrees and acknowledges (x) that for all purposes of the Stockholders' Agreement (i) Buyer is an "Investor" and a member of the "Investor Group" (each as defined in the Stockholders' Agreement"), (ii) the Shares are "Investor Shares" (as defined in the Stockholders' Agreement), (iii) for purposes of the calculation required by Section 3 of the Stockholders' Agreement, so long as the Shares are owned beneficially by Buyer or its affiliates, the Shares shall be treated as though they continued to be beneficially owned by the original Investors (as defined in the Stockholders' Agreement) and (iv) Buyer has all of the rights of the "Investor" and a member of the "Investor Group" under the Stockholders' Agreement, including without limitation such rights provided in Sections 2 and 3 thereof and (y) that for all purposes of the Registration Rights Agreement (i) Buyer is a "Series B Investor" and a "Preferred Stock Investor" (each as defined in the Registration Rights Agreement), (ii) the Shares are "Registrable Securities" and "Series B Investor Shares" (each as defined in the Registration Rights Agreement) and (iii) Buyer has all of the rights of a "Series B Investor" and "Preferred Stock Investor" under the Registration Rights Agreement, including without limitation such rights provided in Sections 2.1, 2.2, 2.3, 2.4 and 2.5 thereof. 4. MISCELLANEOUS. ------------- 4.1 REASONABLE BEST EFFORTS. Each party shall use its reasonable best efforts to timely satisfy each of the conditions to be satisfied by it as provided in Section 1.3. 4.2 AMENDMENT; WAIVER. This Agreement, together and the other documents specifically contemplated herein to be delivered in connection herewith constitute the entire agreement of the parties hereto with respect to the subject matter hereof, and supersede all prior oral and written agreements and understandings regarding the same. This Agreement may only be amended by a writing duly executed by all of the parties hereto. No waiver of any provision of this Agreement shall be binding upon any party unless the waiver is in writing and signed by the parties hereto. The waiver by any party of a breach of any provision under this Agreement shall not operate or be construed as a waiver of any subsequent similar or other breach hereof. 4.3 GOVERNING LAW. THIS AGREEMENT SHALL BE DEEMED TO BE MADE IN AND IN ALL RESPECTS SHALL BE INTERPRETED, CONSTRUED AND GOVERNED BY AND IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE CONFLICT OF LAW PRINCIPLES THEREOF THAT WOULD APPLY THE SUBSTANTIVE LAWS OF ANY OTHER JURISDICTION. 4.4 ASSIGNMENT. This Agreement shall be binding upon and inure to the benefit of each of the parties hereto, and their respective successors and permitted assigns. No party hereto may assign any of its rights hereunder to another party without the prior written consent of the other party hereto; provided that, each party hereto may assign its rights hereunder without such consent if such assignment is made to an affiliate of such assigning party. 4.5 COUNTERPARTS. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original and all of which together shall be deemed to be one and the same instrument. 4.6 NOTICES. All notices, consents, requests, instructions, approvals and other communications provided for herein shall be deemed validly given, made or served if in writing and delivered personally or sent by certified mail, postage prepaid, or by overnight courier, or by telecopier to the address set forth opposite the receiving party's signature hereto, or to such other address as shall be furnished in writing by any party to the others. 4.7 FURTHER ASSURANCES. The Sellers agree to cooperate with Buyer, and at Buyer's request, to execute and deliver any further instruments (and to cause any further instruments to be executed and delivered by any third party, including without limitation the Company) as Buyer may reasonably request in order to carry out the intent of the parties hereunder. 4.8 CONFIDENTIALITY. The Buyer shall not disclose any confidential information provided by Sellers to Buyer in connection with the transactions contemplated hereby to any party except Buyer's representatives, employees, affiliates and agents ("Representatives") . Buyer shall not use the confidential information to purchase or sell any equity securities of the Company in violation of the Securities Exchange Act of 1934, as amended. For purposes of this Section 3.8, the term "confidential information" shall not include any information that (a) is or becomes public knowledge other than as a result of the disclosure of such information by Buyer in a manner prohibited hereunder; (b) was received by the Buyer through a third party (other than the Company or its affiliates) that, to the knowledge of the Buyer, had the right to disclose the confidential information to Buyer; (c) was in the Buyer's possession prior to disclosure hereunder and was not acquired, directly or indirectly, from any person or entity in a relationship of trust with the Company with respect to such confidential information; (d) in connection with any litigation to which Buyer may be a party; or (e) is required by applicable federal, state, or local law, rule, or regulation or requested by or demanded of any judicial, regulatory or administrative agency to be disclosed by the Buyer or its Representatives. [Remainder of Page Intentionally Blank - Signatures Follow] IN WITNESS WHEREOF, Sellers and Buyer have executed this Agreement as of the date first above written. SELLERS FIRST RESERVE FUND VII, LIMITED PARTNERSHIP By: First Reserve GP VII, L.P., its General Partner By: First Reserve Corporation, its General Partner By: /s/ Thomas R. Denison Address: One Lafayette Place Name: Thomas R. Denison Greenwich, CT 06830 Title: Managing Director Fax: 203.661.6729 FIRST RESERVE FUND VIII, L.P. By: First Reserve GP VIII, L.P., its General Partner By: First Reserve Corporation, its General Partner By: /s/ Thomas R. Denison Address: One Lafayette Place Name: Thomas R. Denison Greenwich, CT 06830 Title: Managing Director Fax: 203.661.6729 BUYER LB I GROUP INC. By: /s/ Fred Steinberg Address: 399 Park Avenue, 9th Floor Name: Fred Steinberg New York, NY 10022 Title: Vice President Attention: Fred Steinberg SIGNATURE PAGE FOR STOCK PURCHASE AGREEMENT Form of Letter Agreement [date] LB I Group Inc. 399 Park Avenue, 9th Floor New York, NY 10022 Re: Transfer of Series B Convertible Preferred Stock ("Series B Stock") Ladies and Gentlemen: This Letter Agreement is being delivered to you as a condition to the transfer of 32,095 shares (the "Shares") of the Series B Stock of TransMontaigne, Inc., a Delaware corporation (the "Company), from First Reserve Fund VII, Limited Partnership, a Delaware limited partnership ("Fund VII") and First Reserve Fund VIII, L.P., a Delaware limited partnership ("Fund VIII" and with Fund VII, the "Sellers") to LB I Group Inc. (the "Buyer"), pursuant to the Stock Purchase Agreement, dated October 9, 2003, by and among Buyer and the Sellers (the "Purchase Agreement"). Unless otherwise defined herein, all capitalized terms used herein shall have the meanings assigned to them in the Purchase Agreement. The Company and Buyer hereby agree as follows: (a) The Company agrees and acknowledges that for all purposes of the Preferred Stock Recapitalization Agreements (i) Buyer is the "Investor" and an "Institutional Investor" (each as defined in the Preferred Stock Recapitalization Agreements) and (ii) Buyer has all of the rights as the "Investor" and an "Institutional Investor" under the Preferred Stock Recapitalization Agreements, including without limitation such rights provided in Sections 4, 7.1, 7.2, 7.3, 7.4, 7.5, 10, 11 and 13 thereof. (b) The Company agrees and acknowledges that for all purposes of the Stockholders' Agreement (i) Buyer is an "Investor" and a member of the "Investor Group" (each as defined in the Stockholders' Agreement"), (ii) the Shares are "Investor Shares" (as defined in the Stockholders' Agreement"), (iii) for purposes of the calculation required by Section 3 of the Stockholders' Agreement, so long as the Shares are owned beneficially by Buyer or its affiliates, the Shares shall be treated as though they continued to be beneficially owned by the original Investors (as defined in the Stockholders' Agreement) and (iv) Buyer has all of the rights of an "Investor" and a member of the "Investor Group" under the Stockholders' Agreement, including without limitation such rights provided in Sections 2 and 3 thereof. (c) The Company agrees and acknowledges that for all purposes of the Registration Rights Agreement (i) Buyer is a "Series B Investor" and a "Preferred Stock Investor" (each as defined in the Registration Rights Agreement), (ii) the Shares are "Registrable Securities" and "Series B Investor Shares" (each as defined in the Registration Rights Agreement) and (iii) Buyer has all of the rights of a "Series B Investor" and a "Preferred Stock Investor" under the Registration Rights, including without limitation such rights provided in Sections 2.1, 2.2, 2.3, 2.4 and 2.5 thereof. (d) The Company shall use its best efforts to obtain any and all other consents necessary or advisable to consummate the transactions contemplated by the Purchase Agreement and the granting of rights to Buyer contemplated by paragraphs (a) through (c) above (the "Consents"), including without limitation, (i) recommending that all of the parties (the "Parties") to the Stockholders' Agreement and the Registration Rights Agreement promptly execute and deliver to Buyer the Stockholders' Consent and the Registration Rights Consent, (ii) promptly and diligently contacting all Parties in order to obtain the Consents and deliver or cause to be delivered the Consents to Buyer and (iii) proceeding diligently to obtain the Consents. The Company will execute any and all documents and instruments and take any and all actions reasonably requested by Buyer to give effect to the transactions contemplated by the Purchase Agreement. (e) If any of the Consents are incapable of being delivered to Buyer, or in any event are not obtained for any reason, by October 9, 2003, at the request of Buyer, the Company shall grant to Buyer rights with respect to the Shares that are substantially equivalent to the rights held by the Sellers immediately prior to the consummation of the transactions contemplated by the Purchase Agreement, to the extent the grant of such rights would not breach any material agreement between the Company and any stockholder of the Company. (f) The Company hereby agrees that, upon consummation of the transactions contemplated by the Purchase Agreement, the Company will take all such actions that are necessary or advisable in order to cause David Butters, or such other designee of Buyer as Buyer may determine ("Buyer Designee") to be elected as a member of the Board, and thereafter will include Buyer Designee on the slate of directors recommended by the Company, and will oppose any proposal to remove Buyer Designee, at each meeting of stockholders at which the election or removal of directors is on the agenda until such time (the "Board Termination Event") as Buyer no longer beneficially owns at least ___% of the Company's common stock on a fully-diluted basis. Upon the occurrence of the Board Termination Event, Buyer will cause Buyer Designee to resign from the Board. (g) The Company represents and warrants to Buyer that:: (i) Upon the conversion of any of the Shares into shares of the Company's common stock, par value $.01 per share ("Common Shares"), in accordance with Section 5 of the Certificate, such Common Shares shall be validly issued and outstanding, fully paid and non-assessable, free and clear of all liens, taxes, proxies, rights (including rights of first offer and tag along rights) or other encumbrances, and not subject to pre-emptive, participation or similar rights of the stockholders of the Company or others. The Common Shares issuable upon conversion of the Shares have been validly reserved for issuance. (ii) At October 9, 2003, the authorized capital stock of the Company consists of (i) 80,000,000 Common Shares, of which [40,663,447] shares are validly issued and outstanding, fully paid and nonassessable, and (ii) 2,000,000 shares of the Company's preferred stock, par value $.01 per share, of which (A) 250,000 are designated series A convertible preferred stock, par value $0.01 per share, of the Company, of which [24,421] shares are validly issued and outstanding, fully paid and nonassessable and (B) 100,000 are designated as series B redeemable convertible preferred Stock, of which [72,890] are validly issued and outstanding, fully paid and nonassessable. Other than with respect to the Investor Documents or as disclosed in the 10-K, there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, shares of any class of capital stock of the Company or any of its subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its subsidiaries is or may become bound relating to the issuance, repurchase or transfer of any shares of capital stock or options, warrants or rights to purchase or acquire any shares of capital stock of the Company or any of its subsidiaries or relating to the voting of any shares of capital stock of the Company or any of its subsidiaries. (iii) The Company and the Board have taken all necessary action, if any, in order to render inapplicable any control share acquisition, business combination, poison pill (including any distribution under a rights agreement) or other similar anti-takeover provision under the Company's certificate of incorporation, the laws of its state of incorporation or the laws of any other state which is or could become applicable to Buyer, and that would be adverse to Buyer, as a result of the transactions contemplated by the Purchase Agreement, including without limitation the Sellers' sale of the Shares and Buyer's ownership of the Shares. (h) The Company has received the Advance Notice from Sellers, and hereby waives any requirement that additional time pass prior to the consummation of Sellers' sale of the Shares to Buyer. [Remainder of Page Intentionally Blank - Signatures Follow] When accepted by you, this Letter Agreement will constitute the agreement of the Company and Buyer with respect to the foregoing. Please indicate your acceptance be signing in the space provided below. Very truly yours, ----------------------------------- [title] AGREED AND ACCEPTED: LB I GROUP INC. By: ------------------------------ Name: ------------------------------ Title: ------------------------------ Date: ------------------------------ EX-99.2 4 ex99_2.txt Letter Agreement October 9, 2003 LB I Group, Inc. 399 Park Avenue, 9th Floor New York, NY 10022 Attention: Fred Steinberg Re: Transfer of Series B Convertible Preferred Stock ("Series B Stock") Ladies and Gentlemen: This Letter Agreement is being delivered to you in connection with the transfer of 32,095 shares (the "Shares") of the Series B Stock of TransMontaigne Inc., a Delaware corporation (the "Company"), from First Reserve Fund VII, Limited Partnership, a Delaware limited partnership ("Fund VII") and First Reserve Fund VIII, L.P., a Delaware limited partnership ("Fund VIII" and with Fund VII, the "Sellers") to LB I Group, Inc. (the "Buyer"), pursuant to the Stock Purchase Agreement, dated October 9, 2003, by and among Buyer and the Sellers (the "Purchase Agreement"). The Company and Buyer hereby agree as follows: (a) This Letter Agreement shall not become effective until all of the following conditions have been met: (i) the consummation of the transactions contemplated by the Purchase Agreement and the written notification of such consummation provided by Buyer to the Company; (ii) the execution and delivery of an amendment to the Agreement to Elect Directors by and between First Reserve Corporation and certain of its affiliates and the Company, dated as of April 17, 1996, as amended, in form and substance reasonably satisfactory to the Company, the effect of which amendment shall be to decrease the number of directors that First Reserve Corporation may designate to the Company's board of directors from two to one; and (iii) the receipt by the Company of a resignation from Mr. Ben Guill from his position on the Company's board of directors. If such conditions shall not have been met by October 9, 2003, this Letter Agreement shall be null and void and have no further effect. (b) The Company hereby consents to the assignment of the rights and obligations of the Sellers under the Company's Preferred Stock Recapitalization Agreement dated June 27, 2002 (the "Recapitalization Agreement") to Buyer so that (i) Buyer shall be deemed an "Investor" (as defined in the Recapitalization Agreement) and (ii) Buyer shall have the rights and obligations as an "Investor" under the Recapitalization Agreement provided in Sections 4, 5, 6, 7, 10, 11, 13, 14, and 15 thereof. (c) The Company hereby consents to the assignment of the rights and obligations of the Sellers under the Company's Stockholders' Agreement dated as of June 28, 2002 (the "Stockholders' Agreement"), to Buyer so that (i) Buyer shall be and have all rights and obligations as an "Investor" and a member of the "Investor Group" (each as defined in the Stockholders' Agreement), including without limitation such rights provided in Sections 2 and 3 of the Stockholders' Agreement, (ii) the Shares shall be "Investor Shares" (as defined in the Stockholders' Agreement), and (iii) for purposes of the calculation required by Section 3 of the Stockholders' Agreement, so long as the Shares are owned beneficially by Buyer or its Affiliates, the Shares shall be treated as though they continued to be beneficially owned by the original Investors. (d) The Company hereby consents to the assignment of the rights and obligations of the Sellers under the Company's Preferred Stock Investor Registration Rights Agreement dated as of June 27, 2002 (the "Registration Rights Agreement") to Buyer so that (i) Buyer shall be and have all rights and obligations as a "Series B Investor" and a "Preferred Stock Investor" (each as defined in the Registration Rights Agreement), including without limitation such rights provided in Sections 2.1 through 2.5 of the Registration Rights Agreement and (ii) the Shares shall be "Registrable Securities" and "Series B Investor Shares" (each as defined in the Registration Rights Agreement). (e) The Company hereby agrees that, upon consummation of the transactions contemplated by the Purchase Agreement, the Company will take all such actions that are necessary or advisable in order to cause David J. Butters, or such other designee of Buyer as Buyer may determine ("Buyer Designee") to be elected as a member of the Company's board of directors (the "Board"), and thereafter will include Buyer Designee on the slate of directors recommended by the Company, and will oppose any proposal to remove Buyer Designee, at each meeting of stockholders at which the election or removal of directors is on the agenda until such time as Buyer no longer beneficially owns at least 5% of the Company's outstanding common stock (including outstanding common equivalents) (the "Board Termination Event"). Upon the occurrence of the Board Termination Event, Buyer's right to designate a member of the Company's Board and the Company's obligations with respect thereto shall cease and Buyer will cause Buyer Designee to resign from the Board. (f) The Company represents and warrants to Buyer that: (i) Upon the conversion of any of the Shares into shares of the Company's common stock, par value $.01 per share ("Common Shares"), in accordance with Section 5 of the Company's Certificate of Designations of Series B Convertible Preferred Stock, such Common Shares shall be validly issued and outstanding, fully paid and non-assessable, free and clear of all liens, taxes, proxies, rights (including rights of first offer and tag along rights) or other encumbrances, and not subject to preemptive, participation or similar rights of the stockholders of the Company or others. The Common Shares issuable upon conversion of the Shares have been validly reserved for issuance. (ii) At September 22, 2003, the authorized capital stock of the Company consists of (i) 80,000,000 Common Shares, of which 40,681,030 shares are validly issued and outstanding, fully paid and nonassessable, and (ii) 2,000,000 shares of the Company's preferred stock, par value $0.01 per share, of which 100,000 are designated as Series B Convertible Preferred Stock, of which 72,890 are validly issued and outstanding, fully paid and nonassessable. Other than with respect to the Company documents referred to in sections (b) through (d) above or as disclosed in the Annual Report on From 10-K for the year ended June 30, 2003, there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, shares of any class of capital stock of the Company or any of its subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its subsidiaries is or may become bound relating to the issuance, repurchase or transfer of any shares of capital stock or options, warrants or rights to purchase or acquire any shares of capital stock of the Company or any of its subsidiaries. (iii) The transfer of the Shares from the Sellers to Buyer does not trigger any control share acquisition, business combination, poison pill or other similar anti-takeover statute or contractual provision applicable to the Company. (iv) The advanced notice provisions applicable to the transfer of the Shares in the Company's Certificate of Designations of Series B Convertible Preferred Stock and the Recapitalization Agreement have been satisfied. [Remainder of Page Intentionally Blank - Signatures Follow] When accepted by you, this Letter Agreement will constitute the agreement of the Company and Buyer with respect to the foregoing. Please indicate your acceptance be signing in the space provided below. Very truly yours, By: /s/ Erik B. Carlson ------------------- Name: Erik B. Carlson Title: Vice President AGREED AND ACCEPTED: LB I GROUP INC. By: /s/ Fred Steinberg ------------------- Name: Fred Steinberg Title: Vice President Date: October 9. 2003 -----END PRIVACY-ENHANCED MESSAGE-----