0000950131-01-503797.txt : 20011019 0000950131-01-503797.hdr.sgml : 20011019 ACCESSION NUMBER: 0000950131-01-503797 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20011017 EFFECTIVENESS DATE: 20011017 FILER: 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: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-71724 FILM NUMBER: 1760649 BUSINESS ADDRESS: STREET 1: 370 17TH ST STREET 2: SUITE 2750 CITY: DENVER STATE: CO ZIP: 80202 BUSINESS PHONE: 3036268200 MAIL ADDRESS: STREET 1: P O BOX 5660 STREET 2: SUITE 2750 CITY: DENVER STATE: CO ZIP: 80217 FORMER COMPANY: FORMER CONFORMED NAME: SHEFFIELD EXPLORATION CO INC DATE OF NAME CHANGE: 19920703 FORMER COMPANY: FORMER CONFORMED NAME: TRANSMONTAIGNE OIL CO DATE OF NAME CHANGE: 19960724 S-8 1 ds8.txt FORM S-8 As filed with the Securities and Exchange Commission on October 17, 2001 Registration No. 333-__________ ================================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ________________________ FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ________________________ TransMontaigne Inc. (Exact name of registrant as specified in its charter) Delaware 06-1052062 ------------------------------------------------------------------------------------------------------- (State or other jurisdiction of incorporation or organization) (I.R.S. Employer Identification No.) 2750 Republic Plaza 370 17th Street Denver, Colorado 80202 ------------------------------------------------------------------------------------------------------- (Address of Principal Executive Offices) (Zip Code)
TransMontaigne Inc. Equity Incentive Plan -------------------------------------------------------------------------------- (Full title of the plan) ________________________ Erik B. Carlson, Esq. Copy to: Secretary and General Counsel Whitney Holmes, Esq. TransMontaigne Inc. Hogan & Hartson L.L.P. 2750 Republic Plaza 1200 Seventeenth Street, Suite 1500 370 17th Street Denver, Colorado 80202 Denver, Colorado 80202 (303) 899-7300 (303) 626-8200 ---------------------------------------------------------------------------------------------- (Name, address and telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
===================================================================================================================== Amount Proposed maximum Proposed maximum Amount of Title of securities to be offering price aggregate offering registration to be registered Registered (1) per share (2) price (2) fee (2) --------------------------------------------------------------------------------------------------------------------- Common stock, par value $.01 per share 2,312,095 $5.34 $12,346,587.30 $3,086.65 --------------------------------------------------------------------------------------------------------------------- =====================================================================================================================
(1) Pursuant to Rule 416 under the Securities Act of 1933, as amended (the "Securities Act"), this registration statement covers, in addition to the number of shares of common stock shown in the table above, an indeterminate number of shares of common stock that may be issued as a result of anti- dilution provisions contained in the plan. (2) Estimated solely for the purpose of calculating the registration fee pursuant to Rules 457(c) and 457(h) under the Securities Act on the basis of the average high and low sales prices of the Registrant's common stock as reported on the American Stock Exchange on October 10, 2001. The exhibit index is located on page 5 of this registration statement. ================================================================================ -------------------------------------------------------------------------------- EXPLANATORY NOTE TransMontaigne Inc., a Delaware corporation (the "Registrant"), filed with the Securities and Exchange Commission (the "Commission") under the Securities Act the Registration Statement on Form S-8, File No. 333-34579 (the "Prior Registration Statement"), covering the registration on August 29, 1997 of 1,800,000 shares of common stock authorized for issuance under the TransMontaigne Oil Company Equity Incentive Plan as then in effect (the "Original Plan"). Effective as of March 17, 1999, the Registrant's Board of Directors approved two amendments to the Original Plan (as so amended, the "Plan"). The first amendment, ratified by the stockholders of the Registrant on November 18, 1999, (1) increased the number of shares of common stock available for issuance thereunder by 1,700,000 shares to a total of 3,500,000, (2) added an "evergreen" feature pursuant to which the number of shares available for issuance under the Plan increases annually, beginning on June 30, 2000, by a number of shares of common stock of the Registrant equal to one percent of the total number of issued and outstanding shares of common stock on the last day of immediately preceding fiscal year (June 30), and (3) changed the name of the Plan to "TransMontaigne Inc. Equity Incentive Plan." The second amendment changed the definition of "change in control" under the Plan. Accordingly, after giving effect to the one percent increases on June 30, 2000 and 2001, the total number of shares of common stock issued or available for issuance under the Plan as of October 17, 2001 is 4,112,095. PART I INFORMATION REQUIRED IN SECTION 10(a) PROSPECTUS Item 2. Registrant Information and Employee Plan Annual Information. If participants in the Plan call or write to Harold R. Logan, Jr., Chief Financial Officer, TransMontaigne Inc., 2750 Republic Plaza, 370 17th Street, Denver, Colorado 80202, (303) 626-8200, we will provide them with copies of the documents incorporated by reference in Item 3 of Part II of this registration statement and other documents required to be delivered to participants in the Plan pursuant to Rule 428(b) under the Securities Act, without charge. The documents incorporated by reference in Item 3 of Part II of this registration statement are incorporated by reference in the Section 10(a) prospectus. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference. Pursuant to Instruction E of Form S-8, the contents of the Prior Registration Statement are incorporated herein by reference. Additionally, the following documents and all other documents subsequently filed with the Commission by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), prior to the filing of a post-effective amendment that indicates that all the shares of common stock offered hereby have been sold or that deregisters all such shares of common stock then remaining unsold, are hereby incorporated herein by reference to be a part of this registration statement from the date of filing of such documents: (a) The Registrant's latest annual report filed pursuant to Section 13(a) or 15(d) of the Exchange Act; (b) All other reports filed pursuant to Section 13(a) or 15(d) of the Exchange Act since the end of the fiscal year covered by the annual report referred to in (a) above; and 2 (c) The description of the Registrant's common stock contained in the Registrant's Registration Statement on Form 8-A (File No. 001-12646) filed with the Commission on December 6, 1993 under the Exchange Act, as updated in the Registrant's Registration Statement on Form S-4 (File No. 333-03195) filed with the Commission on May 10, 1996 under the Securities Act. Any statement contained in a document incorporated or deemed to be incorporated by reference shall be deemed to be modified or superseded to the extent that a statement contained in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such prior statement. Any such statement so modified or superseded shall not be deemed to constitute a part of this registration statement, except as so modified or superseded. To the extent that any proxy statement or any current report on Form 8-K is incorporated by reference herein, such incorporation shall not include any information contained in such proxy statement or in Item 9 of such Form 8-K which is not, pursuant to the Commission's rules, deemed to be "filed" with the Commission or subject to the liabilities of Section 18 of the Exchange Act. Item 8. Exhibits. Exhibit No. Description of Exhibit ----------- ---------------------- 5.1 Opinion of Hogan & Hartson L.L.P. with respect to the legality of the common stock registered hereby. FILED HEREWITH. 23.1 Consent of Hogan & Hartson L.L.P. Contained in its opinion filed herewith as Exhibit 5.1. 23.2 Consent of KPMG LLP, Independent Public Accountants, with respect to the Registrant. FILED HEREWITH. 24.1 Power of Attorney. Included on the signature page to this registration statement. 99.1 TransMontaigne Oil Company Equity Incentive Plan. Incorporated by reference to the Registrant's Definitive Proxy Statement (File No. 001-11763) filed on August 8, 1997 in connection with its August 28, 1997 Annual Meeting of Stockholders. 99.2 Amendment to TransMontaigne Oil Company Equity Incentive Plan, effective March 17, 1999, changing name of Plan to "TransMontaigne Inc. Equity Incentive Plan" and increasing the number of shares of the Registrant's common stock authorized for issuance under the Plan. Incorporated by reference to the Registrant's Definitive Proxy Statement (File No. 001-11763) filed on October 26, 1999 in connection with its November 18, 1999 Annual Meeting of Stockholders. 99.3 Amendment to TransMontaigne Inc. Equity Incentive Plan, effective March 17, 1999, modifying the definition of "change in control" under the Plan. FILED HEREWITH. 3 SIGNATURES The Registrant. Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Denver, State of Colorado on this 9th day of October, 2001. TRANSMONTAIGNE INC. By: /s/ DONALD H. ANDERSON --------------------------- Donald H. Anderson Chief Executive Officer KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Donald H. Anderson and Harold R. Logan, Jr., and each of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, to sign, execute and file with the Securities and Exchange Commission (or any other governmental or regulatory authority), for us and in our names in the capacities indicated below, this registration statement on Form S-8 (including all amendments thereto) with all exhibits and any and all documents required to be filed with respect thereto, granting unto said attorneys-in-fact and agents and each of them, full power and authority to do and to perform each and every act and thing necessary or desirable to be done in and about the premises in order to effectuate the same as fully to all intents and purposes as he himself might or could do if personally present, hereby ratifying and confirming all that said attorneys-in- fact and agents, or any of them, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement on Form S-8 has been signed on by the following persons in the capacities and on the dates indicated:
SIGNATURE TITLE DATE --------- ----- ---- /s/ DONALD H. ANDERSON President, Chief Executive Officer, Chief Operating October 9, 2001 ------------------------------------ Officer, Vice Chairman and Director Donald H. Anderson (Principal Executive Officer) /s/ HAROLD R. LOGAN, JR. Executive Vice President, Chief Financial Officer, October 9, 2001 ------------------------------------ Treasurer and Director Harold R. Logan, Jr. (Principal Financial Officer) /s/ RODNEY R. HILT Vice President, Controller and Chief Accounting October 9, 2001 ------------------------------------ Officer Rodney R. Hilt (Principal Accounting Officer) /s/ CORTLANDT S. DIETLER Chairman and Director October 9, 2001 ------------------------------------ Cortlandt S. Dietler /s/ BEN A. GUILL Director October 15, 2001 ------------------------------------ Ben A. Guill /s/ BRYAN H. LAWRENCE Director October 12, 2001 ------------------------------------ Bryan H. Lawrence /s/ EDWIN H. MORGENS Director October 11, 2001 ------------------------------------ Edwin H. Morgens
4 EXHIBIT INDEX Exhibit No. Description of Exhibit ----------- ---------------------- 5.1 Opinion of Hogan & Hartson L.L.P. with respect to the legality of the common stock registered hereby. FILED HEREWITH. 23.1 Consent of Hogan & Hartson L.L.P. Contained in its opinion filed herewith as Exhibit 5.1. 23.2 Consent of KPMG LLP, Independent Public Accountants, with respect to the Registrant. FILED HEREWITH. 24.1 Power of Attorney. Included on the signature page to this registration statement. 99.1 TransMontaigne Oil Company Equity Incentive Plan. Incorporated by reference to the Registrant's Definitive Proxy Statement (File No. 001-11763) filed on August 8, 1997 in connection with its August 28, 1997 Annual Meeting of Stockholders. 99.2 Amendment to TransMontaigne Oil Company Equity Incentive Plan, effective March 17, 1999, changing name of Plan to "TransMontaigne Inc. Equity Incentive Plan" and increasing the number of shares of the Registrant's common stock authorized for issuance under the Plan. Incorporated by reference to the Registrant's Definitive Proxy Statement (File No. 001-11763) filed on October 26, 1999 in connection with its November 18, 1999 Annual Meeting of Stockholders. 99.3 Amendment to TransMontaigne Inc. Equity Incentive Plan, effective March 17, 1999, modifying the definition of "change in control" under the Plan. FILED HEREWITH. 5 EX-5.1 3 dex51.txt COUNSEL TO TRANSMONTAIGNE INC Exhibit 5.1 October 17, 2001 Board of Directors TransMontaigne Inc. 2750 Republic Plaza 370 17th Street Denver, Colorado 80202 Gentlemen: We are acting as counsel to TransMontaigne Inc., a Delaware corporation (the "Company"), in connection with its registration, pursuant to a registration statement on Form S-8 (the "Registration Statement") filed with the Securities and Exchange Commission relating to the proposed public offering of up to 2,312,095 shares of the Company's common stock, par value $0.01 per share, all of which shares (the "Shares") are to be sold by the Company under the terms of the TransMontaigne Inc. Equity Incentive Plan, as amended (the "Plan"). This opinion letter is furnished to you at your request to enable you to fulfill the requirements of Item 601(b)(5) of Regulation S-K, 17 C.F.R. (S) 229.601(b)(5), in connection with the Registration Statement. For purposes of this opinion letter, we have examined copies of the following documents: 1. An executed copy of the Registration Statement. 2. A copy of the Plan, as certified by the Secretary of the Company on the date hereof as being complete, accurate, and in effect. 3. The Certificate of Incorporation of the Company, as certified by the Secretary of State of the State of Delaware on October 15, 2001 and by the Secretary of the Company on the date hereof as being complete, accurate, and in effect. 4. The Bylaws of the Company, as certified by the Secretary of the Company on the date hereof as being complete, accurate, and in effect. 5. A certificate of good standing of the Company issued by the Secretary of State of the State of Delaware dated October 15, 2001. 6. Resolutions of the Board of Directors of the Company (a) adopted by unanimous written consent dated July 18, 1997, (b) adopted at a meeting held on March 17, 1999, and (c) adopted by unanimous written consent dated April 23, 1999, each as certified by the Secretary of the Company on the date hereof as being complete, accurate, and in effect, relating to the adoption of the Plan, the filing of the Board of Directors of TransMontaigne Inc. October 17, 2001 Page 2 of 2 Registration Statement, the issuance and sale of the Shares and arrangements in connection therewith. 7. Minutes of the Annual Meeting of Stockholders of the Company and the respective Certificates of Inspectors of Election for meetings held on (a) August 28, 1997, and (b) November 18, 1999, each as certified by the Secretary of the Company on the date hereof as being complete, accurate, and in effect, relating to the ratification and amendment of the Plan. 8. A certificate of an officer of the Company, dated the date hereof, as to certain facts relating to the Company. In our examination of the aforesaid documents, we have assumed the genuineness of all signatures, the legal capacity of all natural persons, the accuracy and completeness of all documents submitted to us, the authenticity of all original documents, and the conformity to authentic original documents of all documents submitted to us as copies (including telecopies). This opinion letter is given, and all statements herein are made, in the context of the foregoing. This opinion letter is based as to matters of law solely on the Delaware General Corporation Law, as amended. We express no opinion herein as to any other laws, statutes, ordinances, rules, or regulations. As used herein, the term "Delaware General Corporation Law, as amended" includes the statutory provisions contained therein, all applicable provisions of the Delaware Constitution and reported judicial decisions interpreting these laws. Based upon, subject to and limited by the foregoing, we are of the opinion that following (i) effectiveness of the Registration Statement, (ii) issuance of the Shares pursuant to the terms of the Plan, and (iii) receipt by the Company of the consideration for the Shares specified in the resolutions adopted by the Board of Directors authorizing the issuance thereof, the Shares will be validly issued, fully paid, and nonassessable. This opinion letter has been prepared for your use in connection with the Registration Statement and speaks as of the date hereof. We assume no obligation to advise you of any changes in the foregoing subsequent to the delivery of this opinion letter. We hereby consent to the filing of this opinion letter as Exhibit 5.1 to the Registration Statement. In giving this consent, we do not thereby admit that we are an "expert" within the meaning of the Securities Act of 1933, as amended. Very truly yours, /s/ HOGAN & HARTSON L.L.P. HOGAN & HARTSON L.L.P. EX-23.2 4 dex232.txt AUDITOR'S CONSENT Exhibit 23.2 Consent of Independent Auditors The Board of Directors and Stockholders TransMontaigne Inc.: We consent to the incorporation by reference in the registration statement on Form S-8 relating to the TransMontaigne Inc. Equity Incentive Plan of our report dated September 19, 2001 relating to the consolidated balance sheets of TransMontaigne Inc. and subsidiaries as of June 30, 2001 and 2000, and the related consolidated statements of operations, stockholders' equity, and cash flows for each of the years in the three-year period ended June 30, 2001, which report appears in the June 30, 2001 annual report on Form 10-K of TransMontaigne Inc. /s/ KPMG LLP KPMG LLP Denver, Colorado October 16, 2001 EX-99.3 5 dex993.txt AMENDMENT TO EQUITY INCENTIVE PLAN EXHIBIT 99.3 AMENDMENT TO TRANSMONTAIGNE INC. EQUITY INCENTIVE PLAN This Amendment to the TransMontaigne Inc. Equity Incentive Plan (the "Plan") is effective March 17, 1999. RECITALS 1. TransMontaigne Inc., formerly known as TransMontaigne Oil Company, a Delaware corporation (the "Company"), adopted the Plan effective as of August 28, 1997. 2. The Board of Directors of the Company has determined that it is in the best interests of the Company to amend the Plan's provisions concerning change in control. 3. Capitalized terms used in this Amendment and not defined herein shall have the meanings given to them in the Plan AMENDMENT 1. Section 5.3(b) of the Plan shall be amended in its entirety to provide as follows: "For purposes of this Plan, a "change in control" shall be deemed to have occurred if (a) any "person" or "group" (within the meaning of Sections 13(d) and 14(d)(2) of the Exchange Act), other than a trustee or other fiduciary holding securities under an employee benefit plan of the Company, is or becomes the "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of more than 40% of the then outstanding voting stock of the Company without the prior approval of at least two-thirds of the members of the Board who are unaffiliated with such person or group; or (b) at any time during any period of three consecutive years (not including any period prior to the Effective Date), individuals who at the beginning of such period constitute the Board (and any new director whose election by the Board or whose nomination for election by the Company's stockholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of such period or whose election or nomination for election was previously so approved) cease for any reason to constitute a majority thereof; or (c) the stockholders of the Company approve a merger or consolidation of the Company with any other corporation, other than a merger or consolidation which would result in the voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity) at least 80% of the combined voting power of the voting securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or the stockholders approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of all or substantially all of the Company's assets." 2. This Amendment was approved by the directors on April 23, 1999 and shall be effective on March 17, 1999. 3. The Plan may be amended and restated to include the provisions of this Amendment. 4. Except as amended in this document, the Plan shall continue in full force and effect. TRANSMONTAIGNE INC. By: /s/ Richard E. Gathright ----------------------------- Richard E. Gathright President and Chief Operating Officer 2