10-Q

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549

FORM 10-Q

(Mark One)

x Quarterly Report Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

For the quarterly period ended September 30, 2002

OR

o Transition Report Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

         Commission File Number 001-11763

TRANSMONTAIGNE INC.

Delaware
(State or other jurisdiction of
incorporation or organization)
06-1052062
(I.R.S. Employer
Identification No.)

2750 Republic Plaza, 370 Seventeenth Street
Denver, Colorado 80202
(Address, including zip code, of principal executive offices)

(303) 626-8200
(Telephone number, including area code)

Indicate by check mark whether the Registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the Registrant was required to file such report), and (2) has been subject to such filing requirements for the past 90 days.

Yes x No o

As of November 1, 2002 there were 40,586,959 shares of the Registrant’s Common Stock outstanding.

TABLE OF CONTENTS

			Page No.
PART I.	FINANCIAL INFORMATION
	Item 1.	Unaudited Consolidated Financial Statements
		Consolidated Balance Sheets	4
		September 30, 2002 and June 30, 2002
		Consolidated Statements of Operations	5
		Three Months Ended September 30, 2002 and 2001
		Consolidated Statements of Preferred Stock and Common Stockholders’ Equity	6
		Year Ended June 30, 2002 and Three Months Ended September 30, 2002
		Consolidated Statements of Cash Flows	7
		Three Months Ended September 30, 2002 and 2001
		Notes to Consolidated Financial Statements	9
	Item 2.	Management’s Discussion and Analysis of Financial Condition and Results of Operations	22
	Item 3.	Qualitative and Quantitative Disclosures about Market Risk	35
	Item 4.	Controls and Procedures	35
PART II.	OTHER INFORMATION
	Item 6.	Exhibits and Reports on Form 8-K	36

SIGNATURES	37
CERTIFICATIONS	38

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PART I.   FINANCIAL INFORMATION

ITEM 1.    UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS

         The interim consolidated financial statements of TransMontaigne Inc. for the three months ended September 30, 2002 are included herein beginning on the following page. The accompanying interim consolidated financial statements should be read in conjunction with our annual consolidated financial statements and related notes, together with our discussion and analysis of financial condition and results of operations, included in our Annual Report on Form 10-K for the year ended June 30, 2002.

         TransMontaigne Inc. is a holding company with the following active subsidiaries during the three months ended September 30, 2002.

• TransMontaigne Product Services Inc. (“TPSI”)

• TransMontaigne Transport Inc.

• Refined Solutions Inc.

         Effective December 31, 2001, TransMontaigne Terminaling Inc. and TransMontaigne Pipeline Inc. were merged into TPSI, which is now our primary operating subsidiary. Effective June 27, 2002, TransMontaigne Holding Inc. was dissolved.

         We do not have any off-balance-sheet arrangements (other than operating leases) or special-purpose entities.

3

TRANSMONTAIGNE INC.
AND SUBSIDIARIES

Consolidated Balance Sheets
September 30, 2002 and June 30, 2002
(In thousands)

	September 30, 2002			June 30, 2002
Assets
Current assets:
Cash and cash equivalents	$	15,645			30,852
Restricted cash held by commodity broker		10,266			4,577
Trade accounts receivable, net		199,689			173,736
Inventories – discretionary volumes		180,241			175,169
Unrealized gains on energy services and risk management contracts		28,350			26,334
Prepaid expenses and other		2,594			2,598
		436,785			413,266
Property, plant and equipment, net		249,155			251,431
Inventories – minimum volumes		45,298			45,298
Unrealized gains on energy services and risk management contracts		13,512			13,969
Investments in petroleum related assets		10,131			10,131
Deferred tax assets		7,639			7,882
Deferred debt issuance costs, net		2,529			2,729
Other assets		4,203			4,263
	$	769,252			748,969
Liabilities, Preferred Stock, and Common Stockholders’ Equity
Current liabilities:
Commodity margin loan	$	17,087			11,312
Trade accounts payable		138,552			102,780
Unrealized losses on energy services and risk management contracts		42,172			22,163
Inventory due under exchange agreements		33,924			16,908
Excise taxes payable		58,758			72,045
Other accrued liabilities		28,058			25,842
		318,551			251,050
Other liabilities:
Long-term debt		140,000			187,000
Unrealized losses on energy services and risk management contracts		426			209
Total liabilities		458,977			438,259
Preferred stock:
Series A Convertible Preferred stock		24,421			24,421
Series B Redeemable Convertible Preferred stock		80,537			80,939
		104,958			105,360
Common stockholders’ equity:
Common stock		399			399
Capital in excess of par value		245,818			245,844
Deferred stock-based compensation		(2,088	)		(2,540	)
Accumulated deficit		(38,812	)		(38,353	)
		205,317			205,350
	$	769,252			748,969

See accompanying notes to consolidated financial statements.

4

TRANSMONTAIGNE INC.
AND SUBSIDIARIES

Consolidated Statements of Operations
Three Months Ended September 30, 2002 and 2001
(In thousands, except per share amounts)

	Three Months Ended September 30,
	2002			2001
Revenues
Product supply, distribution, and marketing, net	$	7,612			27,599
Terminal and pipelines		17,395			15,516
		25,007			43,115
Direct operating costs and expenses:
Lower of cost or market write-downs on minimum inventory volumes		—			849
Terminals and pipelines		6,467			7,175
		6,467			8,024
Net operating margins		18,540			35,091
Costs and expenses:
Selling, general and administrative		9,331			8,465
Depreciation and amortization		4,256			4,282
Corporate relocation and transition		1,084			—
		14,671			12,747
Operating income		3,869			22,344
Other income (expense):
Dividend income from and equity in earnings of petroleum related investments		374			1,349
Interest income		69			264
Interest expense		(3,293	)		(3,053	)
Other financing costs:
Amortization of debt issuance costs		(229	)		(464	)
Unrealized gain (loss) on interest rate swap		75			(3,612	)
Loss on disposition of assets, net		—			(1,295	)
		(3,004	)		(6,811	)
Earnings before income taxes		865			15,533
Income tax expense		(329	)		(5,902	)
Net earnings		536			9,631
Preferred stock dividends		(995	)		(2,404	)
Net earnings (loss) attributable to common stockholders	$	(459	)		7,227
Earnings (loss) per common share
Basic	$	(0.01	)		0.23
Diluted	$	(0.01	)		0.17
Weighted average common shares outstanding:
Basic		39,031			31,150
Diluted		39,031			43,125

See accompanying notes to consolidated financial statements.

5

TRANSMONTAIGNE INC.
AND SUBSIDIARIES

Consolidated Statements of Preferred Stock and Common Stockholders’ Equity
Year Ended June 30, 2002 and Three Months Ended September 30, 2002
(In thousands)

	Preferred stock
	Series A			Series B			Common stock			Capital in excess of par value			Deferred stock-based compensation			Retained earnings (accumulated deficit)			Total common stockholders’ equity
Balance at June 30, 2001	$	174,825			—		$	318			205,256			(2,465	)		(35,559	)		167,550
Common stock issued for options     exercised		—			—			—			151			—			—			151
Common stock repurchased from     employees for withholding taxes		—			—			—			(112	)		—			—			(112	)
Net tax effect arising from stock-     based compensation		—			—			—			(24	)		—			—			(24	)
Forfeiture of restricted stock     awards prior to vesting		—			—			(1	)		(501	)		502			—			—
Deferred compensation related to     restricted stock awards		—			—			4			2,085			(2,089	)		—			—
Amortization of deferred stock-     based compensation		—			—			—			—			1,512			—			1,512
Preferred stock dividends paid-in-     kind		9,816			—			—			—			—			(9,816	)		(9,816	)
Recapitalization of Series A     Convertible Preferred stock		(160,220	)		80,939			119			59,394			—			(1,536	)		57,977
Common stock repurchased and     retired		—			—			(41	)		(20,405	)		—			—			(20,446	)
Net earnings		—			—			—			—			—			8,558			8,558
Balance at June 30, 2002	$	24,421			80,939		$	399			245,844			(2,540	)		(38,353	)		205,350
Common stock issued for options     exercised		—			—			—			11			—			—			11
Common stock repurchased from     employees for withholding taxes		—			—			—			(50	)		—			—			(50	)
Net tax effect arising from stock-     based compensation		—			—			—			64			—			—			64
Forfeiture of restricted stock     awards prior to vesting		—			—			—			(51	)		51			—			—
Amortization of deferred stock-     based compensation		—			—			—			—			401			—			401
Preferred stock dividends		—			—			—			—			—			(1,397	)		(1,397	)
Amortization of premium on Series     B Redeemable Convertible     Preferred stock		—			(402	)		—			—			—			402			402
Net earnings		—			—			—			—			—			536			536
Balance at September 30, 2002	$	24,421			80,537		$	399			245,818			(2,088	)		(38,812	)		205,317

See accompanying notes to consolidated financial statements.

6

TRANSMONTAIGNE INC.
AND SUBSIDIARIES

Consolidated Statements of Cash Flows
Three Months Ended September 30, 2002 and 2001
(In thousands)

	Three Months Ended September 30,
	2002			2001
Cash flows from operating activities:
Net earnings	$	536			9,631
Adjustments to reconcile net earnings to net cash provided (used) by operating        activities:
Depreciation and amortization		4,256			4,282
Equity in earnings of petroleum related investments		—			(21	)
Deferred tax expense		243			5,855
Net tax effect arising from stock-based compensation		64			(43	)
Loss (gain) on disposition of assets, net		—			1,295
Amortization of deferred stock-based compensation		401			313
Amortization of debt issuance costs		229			464
Unrealized (gain) loss on interest rate swap		(75	)		3,612
Net change in unrealized gains/losses on long-term energy services and risk          management contracts		674			2,611
Lower of cost or market write-down on minimum inventory volumes		—			849
Changes in operating assets and liabilities, net of non-cash activities:
Trade accounts receivable, net		(25,953	)		(29,783	)
Inventories – discretionary volumes		(5,072	)		10,373
Prepaid expenses and other		4			270
Trade accounts payable		35,772			(15,492	)
Inventory due under exchange agreements		17,016			(18,536	)
Unrealized (gain) loss on energy services and risk management contracts		17,993			13,274
Excise taxes payable and other accrued liabilities		(12,394	)		(12,636	)
Net cash provided (used) by operating activities		33,694			(23,682	)
Cash flows from investing activities:
Purchases of property, plant and equipment		(1,980	)		(345	)
Proceeds from sales of assets		—			94,109
Decrease (increase) in restricted cash held by commodity broker		(5,689	)		7,984
Increase in other assets		61			151
Net cash provided (used) by investing activities		(7,608	)		101,899
Cash flows from financing activities:
Net repayments of long-term debt		(47,000	)		(41,000	)
Net borrowings of commodity margin loan		5,775			—
Deferred debt issuance costs		(29	)		—
Common stock issued for options exercised		11			30
Common stock repurchased from employees for withholding taxes		(50	)		—
Preferred stock dividends paid in cash		—			—
Net cash used by financing activities		(41,293	)		(40,970	)
Increase (decrease) in cash and cash equivalents		(15,207	)		37,247
Cash and cash equivalents at beginning of period		30,852			9,346
Cash and cash equivalents at end of period	$	15,645			46,593

See accompanying notes to consolidated financial statements.

7

TRANSMONTAIGNE INC.
AND SUBSIDIARIES

Consolidated Statements of Cash Flows (continued)
Three Months Ended September 30, 2002 and 2001
(In thousands)

	Three Months Ended September 30,
	2002		2001
Supplemental disclosures of cash flow information:
Sale of West Shore shares on July 27, 2001:
Investment in West Shore	$	—		12,814
Loss on disposition		—		(9,896	)
Cash received from sale	$	—		2,918
Sale of NORCO system on July 31, 2001:
Assets disposed	$	—		49,733
Liabilities recorded upon sale		—		3,416
Gain on disposition		—		8,601
Cash received from sale	$	—		61,750
Other cash sales:
Cash received from sale of Little Rock facilities on June 30, 2001	$	—		29,033
Cash received from sales of other assets	$	—		408
Total cash received from sales of assets	$	—		94,109

See accompanying notes to consolidated financial statements.

8

TRANSMONTAIGNE INC.
AND SUBSIDIARIES

Notes to Consolidated Financial Statements

September 30, 2002 and June 30, 2002

(1)      Summary of Critical and Significant Accounting Policies

Principles of Consolidation and Use of Estimates

The accompanying consolidated financial statements in this Quarterly Report on Form 10-Q have been prepared pursuant to the rules and regulations of the Securities and Exchange Commission. Accordingly, these statements reflect adjustments (consisting only of normal recurring entries), which are, in our opinion, necessary for a fair presentation of the financial results for the interim periods presented. Certain information and notes normally included in annual financial statements have been condensed in or omitted from these interim financial statements pursuant to such rules and regulations. These consolidated financial statements should be read in conjunction with the consolidated financial statements and related notes, together with our discussion and analysis of financial condition and results of operations, included in our Annual Report on Form 10-K for the year ended June 30, 2002.

Our accounting and financial reporting policies conform to accounting principles and practices generally accepted in the United States of America. The accompanying consolidated financial statements include the accounts of TransMontaigne Inc. and its majority-owned subsidiaries. All significant intercompany accounts and transactions have been eliminated in consolidation.

The preparation of financial statements in conformity with generally accepted accounting principles requires us to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the reporting periods. The following estimates, in our opinion, are subjective in nature, require the exercise of judgment, and involve complex analysis: allowance for doubtful accounts; fair value of inventories—discretionary volumes and energy services contracts; accrued lease abandonment costs; accrued transportation and deficiency obligations; and accrued environmental obligations. Changes in these estimates and assumptions will occur as a result of the passage of time and the occurrence of future events. Actual results could differ from these estimates.

Nature of Business and Basis of Presentation

TransMontaigne Inc., a Delaware corporation (“TransMontaigne”), was formed in 1995 to create an independent petroleum products merchant based in Denver, Colorado. We are a holding company that conducts operations primarily in the Mid-Continent, Gulf Coast, Southeast, Mid-Atlantic and Northeast regions of the United States. We provide a broad range of integrated supply, distribution, marketing, terminal storage, and transportation services to refiners, distributors, marketers, and industrial/commercial end-users of refined petroleum products (e.g., gasoline, diesel fuel, and heating oil), chemicals, crude oil and other bulk liquids (collectively referred to as “Product”).

Our commercial operations currently are divided into two main operating segments: (i) Product supply, distribution, and marketing, and (ii) terminals and pipelines.

Accounting for Product Supply, Distribution, and Marketing Operations

Our Product supply, distribution, and marketing operations include energy trading and risk management activities. Our energy trading and risk management activities are marked to market (i.e., recorded at fair value in the accompanying consolidated balance sheets) in accordance with Emerging Issues Task Force Issue No. 98-10 (“EITF 98-10”), Accounting for Contracts Involved in Energy Trading and Risk Management Activities. The mark-to-market method of accounting requires that the effect of changes in the fair value of our energy trading and risk management activities be recognized as assets and liabilities and included in net revenues attributable to Product supply, distribution, and marketing in the period of the change in value.

The consensus on EITF 98-10 previously permitted revenues from energy trading and risk management activities to be presented on the face of the statement of operations on either a gross or net basis. We previously elected to present revenues

9

from our Product supply, distribution, and marketing operations on a gross basis with a separate line item entitled “Product costs” in the costs and expenses section of the accompanying consolidated statements of operations. Product costs represent the cost of the Products sold, settlement of risk management contracts, transportation, storage, terminaling costs, and commissions. At its June 2002 meeting, the EITF amended its consensus on EITF 98-10 to require that revenues from energy trading and risk management activities be reported on a net basis (i.e., product costs are required to be netted directly against gross revenues to arrive at net revenues). That amended guidance is effective for financial statements issued for periods ending after July 15, 2002. We have adopted that amended guidance for all periods presented. Therefore, for the three months ended September 30, 2002 and 2001, we have presented revenues from our Product supply, distribution and marketing operations on a net basis in the accompanying consolidated statements of operations. Net earnings (loss) have not been affected by this change in presentation. Net revenues attributable to our Product supply, distribution, and marketing operations are as follows (in thousands):

	Three Months ended September 30,
	2002			2001
Gross revenues	$	1,718,186			1,527,618
Less cost of revenues		(1,710,574	)		(1,500,019	)
Net revenues	$	7,612			27,599

Our energy trading and risk management activities include our inventories—discretionary volumes, energy services contracts, and risk management contracts.

Energy Services Contracts. We enter into energy services contracts that require us to deliver physical quantities of Product over a specified term at a specified price. The pricing of the Product delivered under energy services contracts may be fixed at a stipulated price per gallon, or it may vary based on changes in published indices (e.g., Platt’s—Bulk and OPIS—Wholesale).

Our energy services contracts are carried at fair value in the accompanying consolidated financial statements. The fair value of our energy services contracts is included in “Unrealized gains or losses on energy services and risk management contracts” in the accompanying consolidated balance sheets. Changes in the fair value of our energy services contracts are included in net revenues attributable to our Product supply, distribution and marketing operations.

Risk Management Contracts. We enter into risk management contracts to minimize our exposure to changes in commodity prices. We evaluate our market risk exposure from an overall portfolio basis that considers changes in physical inventories—discretionary volumes, open positions in energy services contracts, and open positions in risk management contracts. We enter into risk management contracts that offset the changes in the values of our inventories—discretionary volumes and energy services contracts. At September 30, 2002, our open positions in risk management contracts include futures contracts (purchases and sales), over-the-counter forward contracts (purchases and sales), swaps, and other financial instruments to manage market exposure, primarily commodity price risk.

Our risk management contracts are carried at fair value in the accompanying consolidated financial statements. The fair value of our risk management contracts is included in “Unrealized gains or losses on energy services and risk management contracts” in the accompanying consolidated balance sheet. Changes in the fair value of our risk management contracts are included in net revenues attributable to our Product supply, distribution and marketing operations.

Inventories—Discretionary Volumes. Our inventories—discretionary volumes are held for sale or exchange in the ordinary course of business and consist of refined petroleum products, primarily gasoline and distillates. Our inventories—discretionary volumes are carried at fair value in the accompanying consolidated financial statements. Changes in the fair value of our inventories—discretionary volumes are included in net revenues attributable to our Product supply, distribution and marketing operations.

Inventories—Minimum Volumes. Our inventories—minimum volumes are required to be held for operating balances in the conduct of our overall operating activities. We do not consider our inventories—minimum volumes to be a component of our energy trading and risk management activities. We do not intend to sell or exchange these inventories in the ordinary course

10

of business and, therefore, we do not hedge the market risks associated with this minimum inventory. Currently, we have designated 2.0 million barrels of refined petroleum products as inventories—minimum volumes.

Our inventories—minimum volumes are presented in the accompanying consolidated balance sheets as non-current assets and are carried at the lower of cost or market (replacement cost).

Accounting for Terminal and Pipeline Activities

In connection with our terminal and pipeline operations, we utilize the accrual method of accounting for revenue and expenses. At our terminals and pipelines, we provide throughput, storage, and transportation related services to distributors, marketers, and industrial/commercial end-users of Products. Throughput revenue is recognized when the Product is delivered to the customer; storage revenue is recognized ratably over the term of the storage contract; transportation revenue is recognized when the Product has been delivered to the customer at the specified delivery location.

Cash and Cash Equivalents

We consider all short-term investments with a remaining maturity of three months or less at the date of purchase to be cash equivalents.

Restricted cash represents cash deposits held by our commodity broker to cover initial and variation margin requirements related to open NYMEX futures contracts.

Earnings (Loss) Per Common Share

Basic earnings (loss) per common share is calculated based on the weighted average number of common shares outstanding during the period, excluding restricted common stock subject to continuing vesting requirements. Diluted earnings (loss) per share is calculated based on the weighted average number of common shares outstanding during the period and, when dilutive, potential common shares from the exercise of stock options and warrants to purchase common stock and restricted common stock subject to continuing vesting requirements pursuant to the treasury stock method. Diluted earnings (loss) per share also gives effect, when dilutive, to the conversion of the preferred stock pursuant to the if-converted method.

Adoption of New Accounting Pronouncements

In June 2001, the Financial Accounting Standards Board (“FASB”) issued Statement of Financial Accounting Standards (“SFAS”) No. 143, Accounting for Asset Retirement Obligations, which addresses financial accounting and reporting for obligations associated with the retirement of tangible long-lived assets and the associated asset retirement costs. The standard applies to legal obligations associated with the retirement of long-lived assets that result from the acquisition, construction, development and/or normal use of the asset. SFAS No. 143 requires that the fair value of a liability for an asset retirement obligation be recognized in the period in which it is incurred if a reasonable estimate of fair value can be made. The fair value of the liability is added to the carrying amount of the associated asset and this additional carrying amount is depreciated over the life of the asset. The liability is accreted at the end of each period through charges to operating expense. If the obligation is settled for other than the carrying amount of the liability, a gain or loss is recognized on settlement. We adopted the provisions of SFAS No. 143 effective July 1, 2002. In connection with the adoption of SFAS No. 143, we reviewed current laws and regulations governing obligations for asset retirements. Based on that review we did not identify any legal obligations associated with the retirement of our tangible long-lived assets. Therefore, the adoption of SFAS No. 143 did not have an impact on our consolidated financial statements.

In August 2001, the FASB issued SFAS No. 144, Accounting for the Impairment or Disposal of Long-Lived Assets, which addresses the financial accounting and reporting for long-lived assets to be disposed of by sale and broadens the presentation of discontinued operations to include more disposal transactions. SFAS No. 144 also provides guidance that will eliminate inconsistencies in accounting for the impairment or disposal of long-lived assets under existing accounting pronouncements. We adopted the provisions of SFAS No. 144 effective July 1, 2002. The adoption of SFAS No. 144 did not have an impact on our consolidated financial statements.

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Reclassifications

Certain amounts in the prior years have been reclassified to conform to the current year’s presentation. We have classified inventories—minimum volumes as a non-current asset in the accompanying consolidated balance sheet (see Note 8 of Notes to Consolidated Financial Statements). We also have presented separately the current and non-current unrealized gains/losses on open energy services and risk management contracts in the accompanying consolidated balance sheet (see Note 6 of Notes to Consolidated Financial Statements).

(2)      Dispositions

On July 31, 2001, we sold the NORCO Pipeline system and related terminals (“NORCO”) for cash consideration of approximately $62.0 million and recognized a net gain of approximately $8.6 million on the sale. For the month ended July 31, 2001, we recognized net revenues of approximately $1.2 million, direct operating costs and expenses of approximately $0.6 million, and depreciation and amortization expense of approximately $0.3 million related to the operations of the NORCO system.

On July 27, 2001, we sold a portion of our investment in the common stock of West Shore Pipeline Company (“West Shore”) for cash consideration of approximately $2.9 million. We recognized a net loss of approximately $1.1 million on this sale. We also recognized an impairment loss on our remaining investment in West Shore of approximately $8.8 million. On October 29, 2001, we sold our remaining investment in West Shore for cash consideration of approximately $23.1 million, which approximated our adjusted cost basis. For the three months ended September 30, 2001, we recognized dividend income from West Shore of approximately $0.6 million.

(3)      Acquisitions of Terminals and Pipelines

Effective June 30, 2002, we acquired for cash consideration of approximately $7.2 million the remaining 40% interest that we previously did not own in the Razorback Pipeline system (“Razorback”), a 67 mile petroleum products pipeline between Mount Vernon, Missouri and Rogers, Arkansas with approximately .4 million barrels of storage capacity.

On July 31, 2002, we acquired for cash consideration of approximately $.6 million a Products terminal in Brownsville, Texas. The 25,000-barrel terminal provides us with additional storage and rail car handling facilities in Brownsville, Texas.

The purchase price of each transaction was allocated to the assets and liabilities acquired based upon the estimated fair value of the assets and liabilities as of the acquisition date. The purchase price was allocated as follows (in thousands):

	Razorback			Brownsville
Prepaid expenses and other current assets	$	2			—
Property, plant and equipment		7,188			630
Other accrued liabilities assumed		(75	)		—
Cash paid, net of cash acquired of $85 and $0, respectively	$	7,115			630

We accounted for the step-acquisition of Razorback using the purchase method of accounting as of the effective date of the transaction. The proforma combined results of operations including Razorback as if the step-acquisition of Razorback had occurred on July 1, 2001 would not have been materially different from the results of operations reported in the accompanying consolidated statements of operations.

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(4)      Trade Accounts Receivable

Trade accounts receivable, net consists of the following (in thousands):

	September 30, 2002			June 30, 2002
Trade accounts receivable	$	201,239			174,986
Less allowance for doubtful accounts		(1,550	)		(1,250	)
	$	199,689			173,736

(5)      Inventories—Discretionary Volumes

Inventories—discretionary volumes are as follows (in thousands):

	September 30, 2002		June 30, 2002
Products held for sale or exchange	$	146,317		158,261
Products due under exchange agreements		33,924		16,908
Inventories—discretionary volumes	$	180,241		175,169

Our inventories—discretionary volumes are an integral component of our overall energy trading and risk management activities. Our inventories—discretionary volumes are held for sale or exchange in the ordinary course of business and consist of Products, primarily gasolines and distillates. Products due under exchange agreements represent physical Products in our possession that we owe to counterparties pursuant to an exchange agreement in which we exchange Product in a specified delivery location for Product in a different delivery location.

At September 30, 2002 and June 30, 2002, we held for sale or exchange approximately 4.2 million and 5.2 million barrels of discretionary inventory, net of 1.0 million and .5 million barrels due under exchange agreements, at a weighted average value of approximately $0.83 and $0.72 per gallon, respectively.

(6)      Unrealized Gains and Losses on Energy Services and Risk Management Contracts

Unrealized gains and losses on energy services and risk management contracts are as follows (in thousands):

	September 30, 2002			June 30, 2002
Unrealized gains—current	$	28,350			26,334
Unrealized gains—long-term		13,512			13,969
Unrealized gains—asset		41,862			40,303
Unrealized losses—current		(42,172	)		(22,163	)
Unrealized losses—long-term		(426	)		(209	)
Unrealized losses—liability		(42,598	)		(22,372	)
Net asset (liability) position	$	(736	)		17,931

  Our energy services contracts are primarily “fixed-price” sales commitments to industrial/commercial end users, logistical service contracts, and swap contracts.

Our risk management contracts include forward purchases and sales, swaps, and other financial instruments to offset market exposure, primarily commodity price risk, on our energy trading contracts and inventories—discretionary volumes. In managing market risks on these contracts and inventories, we evaluate the market exposure from an overall portfolio basis that considers both the open position in the energy services contracts and the related movement of certain physical inventory balances (see Note 5 of Notes to Consolidated Financial Statements).

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(7)      Property, Plant, and Equipment

Property, plant and equipment, net is as follows (in thousands):

	September 30, 2002			June 30, 2002
Land	$	14,125			14,125
Terminals, pipelines, and equipment		277,163			276,559
Technology and equipment		12,672			12,645
Furniture, fixtures, and equipment		5,732			5,732
Construction in progress		4,640			3,291
		314,332			312,352
Less accumulated depreciation		(65,177	)		(60,921	)
	$	249,155			251,431

(8)      Inventories—Minimum Volumes

Inventories—minimum volumes are as follows (in thousands):

	September 30, 2002			June 30, 2002
Products:
At original cost basis	$	76,579			76,579
Adjustment for write-downs to lower of cost or market		(31,281	)		(31,281	)
Inventories—minimum volumes	$	45,298			45,298

Our inventories—minimum volumes are required to be held for operating balances in the conduct of our overall operating activities. We do not consider our inventories—minimum volumes to be a component of our energy trading and risk management activities. We do not intend to sell or exchange these inventories in the ordinary course of business and, therefore, we do not hedge the market risks associated with this minimum inventory. Our inventories—minimum volumes are presented in the accompanying consolidated balance sheets as non-current assets and are carried at the lower of cost or market. At September 30, 2002 and June 30, 2002, the weighted average adjusted cost basis of our inventories—minimum volumes was $0.54 per gallon.

During the three months ended September 30, 2001, we recognized an impairment loss of approximately $.8 million due to lower of cost or market write-downs on our inventories—minimum volumes.

(9)      Other Assets

Other assets are as follows (in thousands):

	September 30, 2002		June 30, 2002
Prepaid transportation	$	2,644		2,644
Commodity trading membership		1,500		1,500
Deposits and other assets		59		119
	$	4,203		4,263

Prepaid transportation relates to our contractual transportation and deficiency agreements with three interstate Product pipelines (see Note 14 of Notes to Consolidated Financial Statements).

Commodity trading membership represents the purchase price we paid to acquire two seats on the NYMEX.

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(10)      Accrued Liabilities

Accrued liabilities are as follows (in thousands):

	September 30, 2002		June30, 2002
Interest rate swap, at fair value	$	5,354		5,429
Accrued environmental obligations		2,198		2,329
Accrued corporate relocation and transition		1,640		2,029
Accrued lease abandonment		3,110		3,110
Accrued indemnities—NORCO		1,300		1,300
Accrued transportation and deficiency obligations		2,620		2,839
Deferred revenue—energy services		2,293		1,600
Accrued expenses		5,947		5,080
Dividend payable—preferred stock		1,397		—
Deposits and other accrued liabilities		2,199		2,126
	$	28,058		25,842

Accrued Corporate Relocation and Transition. During the year ended June 30, 2002, we announced to our employees that our Product supply, distribution, and marketing operations in Atlanta, Georgia would be relocated to Denver, Colorado. On March 19, 2002, we offered approximately 72 employees the opportunity to relocate to Denver, Colorado and we informed approximately 25 employees that they would not be offered the opportunity to relocate to Denver, Colorado. Ultimately, 36 employees chose to relocate to Denver, Colorado. Those employees are entitled to receive a transition bonus and a relocation package payable upon transfer to the Denver office. The transition bonus is being accrued over the period from date of acceptance by the employee to the expected date of arrival in Denver, Colorado. The relocation costs are being accrued as incurred/earned by the employee. Ultimately, 36 employees chose not to relocate and those employees are entitled to receive termination benefits upon their termination date as determined by us. The special termination benefits were accrued upon receipt of the notification from the employee that they did not intend to accept the offer to relocate to Denver, Colorado.

During the three months ended September 30, 2002, we paid special termination benefits to 10 employees and we paid transition bonuses to 28 employees. We expect to pay the remaining special termination benefits before March 31, 2003, and the remaining transition bonuses during the three months ending December 31, 2002.

	Accrued liability at June 30, 2002		Amounts incurred/accrued during the period		Amounts paid during the period			Accrued liability at September 30, 2002
Accrued special termination benefits to employees not     relocating to Denver , Colorado	$	1,428		—		(488	)		940
Accrued transition benefits payable to employees     relocating to Denver, Colorado		501		225		(526	)		200
Relocation costs incurred during the period		100		859		(459	)		500
	$	2,029		1,084		(1,473	)		1,640

Accrued Lease Abandonment. In connection with our corporate relocation and transition, we entered into an operating lease for new office space in Denver, Colorado. The new lease was executed on April 19, 2002. We expect to vacate our existing office space in Denver, Colorado during February 2003 and we vacated our excess space in Atlanta, Georgia during October 2002. The accrual for the abandonment of the office leases represents the excess of the remaining lease payments subsequent to vacancy of the space by us over the estimated sublease rentals to be received based on current market conditions. At September 30, 2002 and June 30, 2002, the accrued liability for lease abandonment costs was approximately $3.1 million.

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We expect to pay the accrued liability of approximately $3.1 million, net of estimated sublease rentals, as follows:

Years ending June 30:	Lease payments		Estimated sublease rentals			Accrued liability
2003	$	745		(97	)		648
2004		991		(562	)		429
2005		1,020		(565	)		455
2006		1,045		(569	)		476
2007		948		(508	)		440
Thereafter		1,243		(581	)		662
	$	5,992		(2,882	)		3,110

Deferred Revenue—Energy Services. In connection with a fixed-price supply contract with a large industrial/commercial end-user, we committed to provide this customer with supply chain management services over the term of the supply contract. At June 30, 2002, our deferred revenue associated with the supply chain management services was approximately $1.6 million. During the three months ended September 30, 2002, we recognized approximately $150,000 in net revenues attributable to our Product supply, distribution and marketing operations from the amortization of the deferred revenues—energy services.

We enter into risk management contracts with industrial/commercial end-users that permit industrial/commercial end-users to fix the price of their fuel purchases. These contracts provide for industrial/commercial end-users to pay to us a fixed price per gallon in exchange for receiving from us a variable price per gallon based upon published prices. During the three months ended September 30, 2002, we originated risk management contracts with an estimated fair value of approximately $840,000, representing the excess of the amounts we expect to receive from the industrial/commercial end-users over our estimate of the forward price curve of the underlying commodity adjusted for basis (geographical location) differentials. At September 30, 2002, we deferred the fair value of the contracts. We will amortize the deferred revenue—energy services into net revenues attributable to our Product supply, distribution, and marketing operations over the respective terms of the contracts.

(11)      Debt

Debt is as follows (in thousands):

	September 30, 2002			June 30, 2002
Commodity margin loan	$	17,087			11,312
Bank credit facility		140,000			187,000
		157,087			198,312
Less current debt		(17,087	)		(11,312	)
Long-term debt	$	140,000			187,000

Commodity Margin Loan. We currently have a commodity margin loan agreement with Salomon Smith Barney that allows us to borrow up to $20.0 million to fund certain initial and variation margin requirements in commodities accounts maintained by us with Salomon Smith Barney. The entire unpaid principal amount of the loan, together with accrued interest, is due and payable on demand. Outstanding loans bear interest at the average 90-day Treasury Bill rate plus 1.75% (3.38% at September 30, 2002).

Bank Credit Facility. On June 28, 2002, we executed an amended and restated Senior Secured Credit Facility (“New Facility”) with a syndication of banks. The New Facility provides for a maximum borrowing line of credit that is the lesser of (i) $300 million and (ii) the borrowing base (as defined; $274 million at September 30, 2002). Borrowings under the New Facility bear interest (at our option) based on the lender’s base rate plus a specified margin, or LIBOR plus a specified margin; the specified margins are a function of our leverage ratio (as defined). Borrowings under the New Facility are secured by substantially all of our assets. The terms of the New Facility include financial covenants relating to fixed charge coverage, current ratio, maximum leverage ratio, consolidated tangible net worth, capital expenditures, cash distributions and open inventory positions that are tested on a quarterly and annual basis. As of September 30, 2002, we were in compliance with all covenants included in the New Facility.

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Maturities of debt at September 30, 2002 are as follows (in thousands):

Years ending:
June 30, 2003	$	17,087
June 30, 2004		—
June 30, 2005		140,000
	$	157,087

(12)      Preferred Stock

At September 30, 2002 and June 30, 2002, we have authorized the issuance of up to 2,000,000 shares of preferred stock. Preferred stock is as follows (in thousands, except per share data):

	September 30, 2002		June 30, 2002
Series A Convertible Preferred stock, par value $0.01 per share, 250,000 shares authorized, 24,421 shares issued and outstanding, liquidation preference of $24,421	$	24,421	$	24,421
Series B Redeemable Convertible Preferred stock, par value $0.01 per share, 100,000 shares authorized, 72,890 shares issued and outstanding, liquidation preference of $72,890	$	80,537	$	80,939

On June 28, 2002, we consummated an agreement with the holders of the Series A Convertible Preferred Stock (the “Preferred Stock Recapitalization Agreement”) to redeem a portion of the outstanding Series A Convertible Preferred Stock and warrants in exchange for cash, shares of common stock, and shares of a newly created and designated preferred stock (“Series B Redeemable Convertible Preferred Stock”). The Preferred Stock Recapitalization Agreement resulted in the redemption of 157,715 shares of Series A Convertible Preferred Stock and warrants to purchase 9,841,493 shares of common stock in exchange for the (i) issuance of 72,890 shares of Series B Redeemable Convertible Preferred Stock with a fair value of approximately $80.9 million, (ii) issuance of 11,902,705 shares of common stock with a fair value of approximately $59.5 million, and (iii) a cash payment of approximately $21.3 million. The initial carrying amount of the Series B Redeemable Convertible Preferred Stock of approximately $80.9 million will be decreased ratably over its 5-year term until it equals its liquidation value of approximately $72.9 million with an equal reduction in the amount of preferred stock dividends recorded for financial reporting purposes.

Preferred stock dividends on the Series A Convertible Preferred Stock were $0.3 million and $2.4 million for the three months ended September 30, 2002 and 2001, respectively. Preferred stock dividends on the Series B Redeemable Convertible Preferred stock were $0.7 million for the three months ended September 30, 2002. The amount of the Series B Redeemable Convertible Preferred stock dividend recognized for financial reporting purposes is composed of the amount of the dividend payable to the holders of the Series B Redeemable Convertible Preferred stock of $1.1 million offset by the amortization of the premium on the carrying amount of the Series B Redeemable Convertible Preferred stock of $0.4 million.

(13)      Common Stock

At September 30, 2002 and June 30, 2002, we were authorized to issue up to 80,000,000 shares of common stock with a par value of $0.01 per share. At September 30, 2002 and June 30, 2002, there were 39,925,043 shares and 39,942,658 shares issued and outstanding, respectively. Our bank credit facility and the certificates of designations of our preferred stock contain restrictions on the payment of dividends on our common stock.

We have a restricted stock plan that provides for awards of common stock to certain key employees, subject to forfeiture if employment terminates prior to the vesting dates. The market value of shares awarded under the plan is recorded in common stockholders’ equity as deferred stock-based compensation. Amortization of deferred compensation of approximately $0.4 million and $0.3 million is included in selling, general and administrative expense for the three months ended September 30, 2002 and 2001, respectively.

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On October 25, 2002, we granted awards of 690,000 shares of restricted common stock to certain key employees. The deferred-stock based compensation associated with those awards was approximately $3.0 million, which will be amortized to income over their respective four-year vesting period.

(14)      Commitments and Contingencies

Transportation and Deficiency Agreements. In connection with our sale of two Product distribution facilities in Little Rock, Arkansas, we are potentially liable for payments of up to $725,000 per year for a five-year period through June 30, 2006. The potential liability for each year is based on the actual throughput volumes of the facility for each year as compared to the contractual thresholds of 20,000 and 32,500 barrels per day (“BPD”). If actual volumes exceed 32,500 BPD, we will not be obligated to pay any of the $725,000 for that given year. If actual volumes are between 20,000 and 32,500 BPD, we will be obligated to pay a prorated portion of the $725,000 for that given year. If actual volumes are less than 20,000 BPD, we are obligated to pay the entire $725,000 for that given year. At June 30, 2002, we recognized an accrued liability of approximately $1.0 million (see Note 10 of Notes to Consolidated Financial Statements) representing our estimate of the future payments we expect to pay for the shortfall in our actual volumes and our estimated shortfall in volumes for the remainder of the term of the agreement. During the three months ended September 30, 2002, we paid approximately $0.2 million as settlement for our shortfall in volumes for the year ended June 30, 2002. Based on actual throughput volumes for the three months ended September 30, 2002, we made no additional adjustments to the accrued liability as of and for the three months ended September 30, 2002.

We also are subject to three transportation and deficiency agreements (“T&D’s”) with three separate Product interstate pipeline companies. Each agreement calls for guaranteed minimum shipping volumes over the term of the agreements. If actual volumes shipped are less than the guaranteed minimum volumes, we must make payment to the counterparty for any shortfall at the contracted pipeline tariff. Such payments are accounted for as prepaid transportation, since we have a contractual right to apply the amounts to charges for using the interstate pipeline after the end of the term of the T&D.

At June 30, 2002, prepaid transportation of approximately $2.6 million is included in other assets and our accrued liability, representing our estimate of the future payments we expect to pay for the estimated shortfall in volumes for the remainder of the terms of the T&D agreements, is approximately $1.8 million. Based on actual volumes shipped during the three months ended September 30, 2002, we made no adjustments to the prepaid transportation or accrued liability as of and for the three months ended September 30, 2002.

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(15)      Earnings Per Share

The following tables reconcile the computation of basic earnings per share (“EPS”) and diluted EPS (in thousands, except per share amounts):

	Three Months ended September 30,
	2002			2001
Net earnings	$	536			9,631
Preferred stock dividends		(995	)		(2,404	)
Net earnings (loss) attributable to common stockholders for basic and diluted EPS	$	(459	)		7,227
Basic weighted average shares		39,031			31,150
Effect of dilutive securities:
Restricted common stock subject to continuing vesting requirements		—			63
Stock options		—			252
Common stock issuable upon conversion of:
Series A Convertible Preferred stock		—			11,660
Series B Redeemable Convertible Preferred stock		—			—
Diluted weighted average shares		39,031			43,125
Earnings (loss) per share:
Basic	$	(0.01	)		0.23
Diluted	$	(0.01	)		0.17

We exclude potentially dilutive securities from our computation of diluted earnings per share when their effect would be anti-dilutive. The following securities were excluded from the earnings per share computation as of and for the three months ended September 30, 2002, as their inclusion would have been anti-dilutive:

	September 30, 2002
Restricted common stock subject to continuing vesting requirements		873,428
Common stock issuable upon exercise of stock options		1,271,940
Common stock issuable upon exercise of stock purchase warrants		900,045
Common stock issuable upon conversion of:
Series A Convertible Preferred stock		1,628,082
Series B Redeemable Convertible Preferred stock		11,043,928
		15,717,423

For the three months ended September 30, 2002, all potentially dilutive securities were excluded because we reported a net loss attributable to common stockholders. For the three months ended September 30, 2002, the stock options had a weighted average exercise price of $4.69 per share, the stock purchase warrants had a weighted average exercise price of $14.00 per share, the Series A Convertible Preferred stock had a conversion price of $15.00, and the Series B Redeemable Convertible Preferred stock had a conversion price of $6.60.

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(16)      Business Segments

We provide a broad range of integrated supply, distribution, marketing, terminal storage and transportation services to refiners, distributors, marketers and industrial/commercial end-users of Products in the midstream sector of the petroleum and chemical industries. We conduct business in the following segments:

• Product supply, distribution, and marketing—consists of services for the supply and distribution of Products through Product exchanges, and bulk purchases and sales in the physical and derivative markets, and the marketing of Products to retail, wholesale and industrial/commercial customers at truck terminal rack locations, and providing related value-added fuel procurement and management services.

• Terminals and pipelines—consists of an extensive terminal and pipeline infrastructure that handles Products with transportation connections via pipelines, barges, rail cars and trucks to our facilities or to third-party facilities with an emphasis on transportation connections primarily through the Colonial, Plantation, Texas Eastern, Explorer and Williams pipeline systems.

• Corporate—consists of our investments in non-controlled business ventures and general corporate items that are not allocated to specific segments (e.g., financing costs and income taxes).

Information about our business segments is summarized below (in thousands):

	Three Months ended September 30, 2002
	Product supply, distribution, and marketing			Terminals and pipelines			Corporate			Total consolidated
Revenues from external customers	$	7,612			8,239			—			15,851
Inter-segment revenues		—			9,156			—			9,156
Revenues, net		7,612			17,395			—			25,007
Direct operating costs and expenses		—			(6,467	)		—			(6,467	)
Net operating margins		7,612			10,928			—			18,540
Selling, general and administrative		(5,287	)		(2,191	)		(1,853	)		(9,331	)
Depreciation and amortization		(258	)		(3,783	)		(215	)		(4,256	)
Corporate relocation and transition		(1,084	)		—			—			(1,084	)
		(6,629	)		(5,974	)		(2,068	)		(14,671	)
Operating income (loss)	$	983			4,954			(2,068	)		3,869
Capital expenditures	$	—			1,980			—			1,980

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	Three Months ended September 30, 2002
	Product supply, distribution, and marketing			Terminals and pipelines			Corporate			Total consolidated
Revenues from external customers	$	27,599			8,042			—			35,641
Inter-segment revenues		—			7,474			—			7,474
Revenues, net		27,599			15,516			—			43,115
Lower of cost or market write-downs on minimum     inventories		(849	)		—			—			(849	)
Direct operating costs and expenses		—			(7,175	)					(7,175	)
Net operating margins		26,750			8,341			—			35,091
Selling, general and administrative		(5,183	)		(1,888	)		(1,394	)		(8,465	)
Depreciation and amortization		—			(3,760	)		(522	)		(4,282	)
		(5,183	)		(5,648	)		(1,916	)		(12,747	)
Operating income (loss)	$	21,567			2,693			(1,916	)		22,344
Capital expenditures	$	62			283			—			345

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ITEM 2.    MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS

This Quarterly Report contains certain forward-looking statements and information relating to TransMontaigne Inc. that are based on beliefs and assumptions made by us as well as information currently available to us. When used in this document, the words “anticipate,” “believe,” “estimate,” “expect,” and similar expressions, are intended to identify forward-looking statements. Such statements reflect our current views with respect to future events and are subject to certain risks, uncertainties, and assumptions. Should one or more of these risks or uncertainties materialize, or should underlying assumptions prove incorrect, actual results may vary materially from those described herein as anticipated, believed, estimated or expected. We do not intend to update these forward-looking statements except as required by law.

GENERAL

The following discussion and analysis of the results of operations, liquidity, capital resources, and commodity price risk should be read in conjunction with the accompanying consolidated financial statements.

TransMontaigne Inc. (“TransMontaigne”) was formed in 1995 to create an independent refined petroleum products merchant based in Denver, Colorado. We are a holding company that conducts our commercial activities primarily in the Mid-Continent, Gulf Coast, Southeast, Mid-Atlantic and Northeast regions of the United States. We supply, distribute, transport, store, and market refined petroleum products, chemicals, crude oil, and other bulk liquids (collectively referred to as “Products”) to refiners, distributors, marketers, and industrial/commercial end-users.

Our commercial activities currently are divided into two main operating segments: (i) Product supply, distribution, and marketing services, and (ii) terminal and pipeline operations. Our Product supply, distribution and marketing operations generally utilize our terminal and pipeline infrastructure to market and trade various Products and provide specialized supply, logistical, and risk management services to our customers.

Product Supply, Distribution, and Marketing Operations

We seek to maintain a balanced position of forward sale commitments against our discretionary inventories and forward purchase commitments, thereby minimizing or eliminating exposure to commodity price fluctuations. We evaluate our exposure to commodity price risk from an overall portfolio basis that considers the continuous movement of discretionary inventory volumes and the open positions in energy services and risk management contracts. However, there are certain risks that we do not attempt to hedge or eliminate. For example, we attempt to exploit the price relationships between various delivery locations (referred to as “basis (geographical location) differentials”). These differentials create opportunities for increased operating margins when we predict the most beneficial location (highest value location) for sales of our discretionary inventories of refined products. However, the margins created from exploiting these market inefficiencies do not occur ratably over our reporting periods.

Our Product supply, distribution, and marketing operations typically purchase Products at prevailing prices from refiners and producers at production points and common trading locations. When we purchase Products, we simultaneously sell the Products for physical delivery to third party users or by entering into future delivery obligations, such as futures contracts on the NYMEX. These futures contracts minimize or eliminate our exposure to fluctuations in the quoted price of the commodity, but do not minimize exposure to basis (geographical location) differentials. These Products are then shipped via barge, pipelines we own, or third party-owned pipelines to terminals we own or to third-party terminal locations. From these terminal locations, the Products are made available to our customers either through contract sales, exchange agreements or daily-priced rack sales.

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Rack Sales. We manage the physical quantity of our discretionary inventories of Product through daily-priced rack sales. On a daily basis we establish the selling price for each Product for each of our delivery locations/terminals. We announce or “post” those selling prices to independent local jobbers via facsimile, website, email, and telephone communications. Our selling price of a particular Product on a particular day is a function of our supply at that delivery location/terminal and our estimate of the costs to replenish the Product at that delivery location. The demand for a particular Product is sensitive to changes in pricing. If our objective is to increase demand for a particular Product at a specific delivery location, we would post the selling price of that Product at the low end of the range of prices being offered at that location to increase our local demand. If our objective is to decrease demand for a particular Product at a specified delivery location, we would post a selling price at the high end of the range of prices being offered at that location to reduce our local demand. For the three months ended September 30, 2002 and 2001, we averaged approximately 124,000 and 75,000 barrels per day, respectively, of delivered volumes under daily-priced rack sales.

Exchanges. Exchange agreements are entered into with major oil companies and independent refiners. These agreements provide for the exchange of Product at one delivery location for Product at a different location. We generally receive a fee based on the volume of the Product exchanged. That fee takes into account the cost of transportation from the receipt location to the exchange delivery location. For the three months ended September 30, 2002 and 2001, we averaged approximately 98,000 and 142,000 barrels per day, respectively, of delivered volumes under exchange agreements.

Bulk and Cycle Sales. Bulk and cycle sales of Products are entered into with major oil companies and independent refiners. These transactions involve the sale of Products in large quantities in liquid bulk markets (Pasadena, TX, New York Harbor, Chicago, IL, Tulsa, OK refining area, and Los Angeles, CA). These transactions also involve the sale of Products in large quantities prior to scheduled delivery to us by producers and refiners for transportation by pipelines, barges, vessels, or rail cars to our terminals. These transactions may occur while the Products are in transit prior to reaching our terminals. For the three months ended September 30, 2002 and 2001, we averaged approximately 475,000 and 364,000 barrels per day, respectively, of delivered volumes under bulk and cycle sales.

Contract Sales. Contract sales of Products are conducted from our own and third-party terminal, storage, and delivery locations with independent local jobbers, industrial/commercial end users, and governmental agencies. Contract sales provide these customers with a specified volume of Product over a specified term at a specified price. The terms of these contracts range from as short as one month to terms that span up to three years. The pricing of the Product delivered under a contract sale may be fixed at a stipulated price per gallon or it may vary based on changes in published indices (e.g., OPIS and Platts). For the three months ended September 30, 2002 and 2001, we averaged approximately 97,000 and 75,000 barrels per day, respectively, of delivered volumes under contract sales.

Energy Services. We provide “supply chain management” services to our industrial/commercial end-users downstream of the truck loading rack location. Fuel and risk management logistical services provide our large and small volume customers an assured, cost effective delivered source of Products supply through our pipelines and terminals, as well as through third-party pipeline, terminal, truck, rail and barge distribution channels. Customers of our “supply chain management” services receive the benefits of our web-based technology systems enabling the customers to minimize their total Product costs while meeting their volumetric needs. We generally receive a fee based on the volume of the Products we originate for the customer in exchange for providing our supply chain management services.

Our Product supply, distribution, and marketing operations include energy trading and risk management activities as defined by Emerging Issues Task Force Issue No. 98-10 (“EITF 98-10”), Accounting for Contracts Involved in Energy Trading and Risk Management Activities. In accordance with EITF 98-10, our energy trading and risk management activities are marked to market (i.e., recorded at fair value in the accompanying consolidated balance sheet). The mark-to-market method of accounting requires that the effect of changes in the fair value of our energy trading and risk management activities be recognized as assets and liabilities and included in net revenues attributable to Product supply, distribution, and marketing in the period of the change in value.

Our energy trading and risk management activities include our inventories—discretionary volumes, energy services contracts, and risk management contracts. Our inventories—discretionary volumes are held for sale or exchange in the ordinary course of business and consist of refined petroleum products, primarily gasoline and distillates. Our energy services contracts require us to deliver physical quantities of Products over specified terms at specified prices. Our risk management contracts (e.g., forward sales contracts, forward purchase contracts, and swaps) minimize our exposure to changes in commodity prices. We enter into risk management contracts with the objective of offsetting the changes in the values of our inventories—discretionary volumes and energy services contracts. It is our policy not to acquire Products, futures contracts or other derivative products for the purpose of speculating on the flat price associated with the underlying commodity. Risk

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management policies have been established by our Risk Management Committee to monitor and control these price risks. Our Risk Management Committee is composed of our senior executives.

Our inventories—discretionary volumes are carried at fair value in the accompanying consolidated financial statements. Our energy services and risk management contracts also are carried at fair value in the accompanying consolidated financial statements. The fair value of our energy services and risk management contracts are presented as “Unrealized gains or losses on energy services and risk management contracts” in the accompanying consolidated balance sheet.

Terminals and Pipelines

We own and operate a terminal infrastructure that handles Products with transportation connections via pipelines, barges, rail cars and trucks to our facilities and to third-party facilities. As of September 30, 2002, we owned and operated the following facilities: 30 delivery locations/terminals with approximately 9.9 million barrels of tank space capacity along the Colonial and Plantation pipeline systems; 3 delivery locations/terminals with approximately 500,000 barrels of tank space capacity along the Explorer/Williams pipeline systems; 3 delivery locations/terminals with approximately 1.0 million barrels of tank capacity along the Florida coast; 1 delivery location/terminal with approximately 2.2 million barrels of tank capacity in Brownsville, Texas; and 12 delivery locations/terminals with approximately 2.9 million barrels of tank capacity along the Mississippi and Ohio rivers.

We own an interstate Products pipeline operating from Mt. Vernon, Missouri to Rogers, Arkansas (the “Razorback Pipeline”), together with associated terminal facilities at Mt. Vernon and Rogers. The Razorback Pipeline is the only Products pipeline providing transportation services to northwest Arkansas. Effective June 30, 2002, we acquired for cash consideration of approximately $7.2 million the remaining 40% interest in the Razorback Pipeline system that we did not previously own. We also own and operate a small intrastate crude oil gathering pipeline system, located in east Texas (the “CETEX pipeline”).

The success of our terminal and pipeline operations depends in large part on the level of demand for Products by end users in the geographic locations served by such facilities and the ability and willingness of our customers to supply such demand by utilizing our terminals and pipelines as opposed to the terminals and pipelines of other companies. At our terminals and pipelines, we provide throughput, storage, and transportation related services to distributors, marketers and industrial/commercial end-users of Products.

Throughput and Storage Revenues. Terminal throughput fees are based on the volume of Products handled at the facility’s truck loading racks, generally at a standard rate per gallon. Terminal storage fees generally are based on a per barrel rate or tank space capacity committed and will vary with the duration of the arrangement, the Product stored and special handling requirements, particularly when certain types of chemicals and other bulk liquids are involved. For the three months ended September 30, 2002 and 2001, we averaged approximately 480,000 and 515,000 barrels per day, respectively, of throughput and storage volumes at our terminals.

Transportation Revenues. Pipeline transportation fees are based on the volume of Products transported and the distance from the origin point to the delivery point. For the three months ended September 30, 2002 and 2001, we averaged approximately 27,000 and 33,000 barrels per day, respectively, of transported volumes through our pipelines.

The direct operating costs and expenses of the terminals and pipelines operations include the directly related wages and employee benefits, utilities, communications, maintenance and repairs, property taxes, rent, vehicle expenses, environmental compliance costs, materials and supplies. We cannot predict the impact of future fuel conservation measures, alternate fuel requirements, governmental regulation, technological advances in fuel economy, demographic changes, weather conditions, crop prices, and energy-generation devices, all of which could reduce the demand for Products in the areas we serve.

CRITICAL ACCOUNTING ESTIMATES

A summary of the significant accounting policies that we have adopted and followed in the preparation of our consolidated financial statements is detailed in our Annual Report on Form 10-K for the year ended June 30, 2002 (see Note 1 of Notes to the Consolidated Financial Statements). Certain of these accounting policies require the use of estimates. The following estimates, in our opinion, are subjective in nature, require the exercise of judgment, and involve complex analysis: allowance for doubtful accounts; fair value of inventories—discretionary volumes and energy services contracts; accrued lease abandonment costs; accrued transportation and deficiency obligations; and accrued environmental obligations. These

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estimates are based on our knowledge and understanding of current conditions and actions we may take in the future. Changes in these estimates will occur as a result of the passage of time and the occurrence of future events. Subsequent changes in these estimates may have a significant impact on our financial condition and results of operations.

SIGNIFICANT DEVELOPMENTS

On July 31, 2002, we closed on the purchase of a 25,000-barrel terminal in Brownsville, Texas. The terminal provides us with additional storage and rail car handling facilities and operating synergies with our main facility in Brownsville, Texas.

On August 23, 2002, we announced the signing of a long-term terminaling agreement with P.M.I. Trading Limited to provide Products terminaling services and a related pipeline construction assistance agreement with P.M.I. Services North America, Inc., both affiliates of Petroleos Mexicanos, for the construction of a new 17-mile U.S. Products pipeline from the U.S./Mexican border to our terminaling facility located at the port of Brownsville, Texas.

SUBSEQUENT EVENTS

Corporate Relocation and Transition.    During the three months ended September 30, 2002, we relocated our Product supply, distribution, and marketing operations from Atlanta, Georgia to our existing office space at 370 17^th Street in Denver, Colorado. During October and November 2002, our Product supply, distribution, and marketing operations moved into our new office space at 1670 Broadway in Denver, Colorado. Our executive and administrative operations expect to vacate our existing office space at 370 17^th Street and join our Product supply, distribution, and marketing operaitons at 1670 Broadway during March 2003.

New Accounting Pronouncements with Delayed Effective Dates.    On October 25, 2002, the EITF reached a consensus that energy trading and risk management activities should no longer be marked to market pursuant to Issue No. 98-10. Rather, energy trading and risk management activities that qualify as derivative contracts pursuant to SFAS No. 133 will be recognized as assets and liabilities at fair value and energy trading and risk management activities that do not qualify as derivative contracts will be treated as executory contracts and recognized pursuant to the accrual method of accounting (see New Accounting Pronouncements with Delayed Effective Dates, on page 34 of this Quarterly Report on Form 10-Q).

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RESULTS OF OPERATIONS

Selected financial data regarding our operating income is summarized below (in thousands):

	Three Months Ended September 30,
	2002			2001
Product supply, distribution, and marketing:
Revenues, net	$	7,612			27,599
Lower of cost or market write-downs on inventories – minimum volumes		—			(849	)
Net operating margins		7,612			26,750
Terminals and pipelines:
Revenues		17,395			15,516
Direct operating costs and expenses		(6,467	)		(7,175	)
Net operating margins		10,928			8,341
Total net operating margins		18,540			35,091
Selling, general and administrative expenses		(9,331	)		(8,465	)
Depreciation and amortization		(4,256	)		(4,282	)
Corporate relocation and transition		(1,084	)		—
Operating income	$	3,869			22,344

(1) Net operating margins represent net revenues, less direct operating costs and expenses.

Selected volumetric data:

	Three Months Ended September 30,
	2002		2001
Terminal Volumes – bbls/day		480,422		515,035
Terminal net operating margin per bbl	$	0.220	$	0.162
Pipeline Volumes – bbls/day		27,129		32,674
Pipeline net operating margin per bbl	$	0.480	$	0.288

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         The following summary reflects our comparative EBITDA, adjusted EBITDA, and net cash flows for the three months ended September 30, 2002 and 2001 (in thousands):

	Three Months Ended September 30,
	2002			2001
EBITDA (1)	$	8,499			27,975
Adjusted EBITDA (2)	$	8,499			28,824
Net cash provided (used) by operating activities	$	33,694			(23,682	)
Net cash provided (used) by investing activities	$	(7,608	)		101,899
Net cash (used) by financing activities	$	(41,293	)		(40,970	)
Calculation of EBITDA and Adjusted EBITDA:
Net operating margins:
Product supply, distribution, and marketing	$	7,612			26,750
Terminals and pipelines		10,928			8,341
Total net operating margins		18,540			35,091
Selling, general and administrative expenses		(9,331	)		(8,465	)
Corporate relocation and transition		(1,084	)		—
Dividend income		374			1,349
EBITDA (1)		8,499			27,975
Plus write-downs on minimum inventory		—			849
Adjusted EBITDA (2)	$	8,499			28,824

(1) EBITDA is defined as total net operating margin, less selling, general and administrative expenses, less corporate relocation and transition, plus dividend income from petroleum related investments. We believe that, in addition to cash flow from operating activities and net earnings (loss), EBITDA is a useful financial performance measurement for assessing operating performance since it provides an additional basis to evaluate our ability to incur and service debt and to fund capital expenditures. In evaluating EBITDA, we believe that consideration should be given, among other things, to the amount by which EBITDA exceeds interest costs for the period; how EBITDA compares to principal repayments on debt for the period; and how EBITDA compares to capital expenditures for the period. To evaluate EBITDA, the components of EBITDA such as revenue and direct operating expenses and the variability of such components over time, also should be considered. EBITDA should not be construed, however, as an alternative to operating income (loss) (as determined in accordance with GAAP) as an indicator of our operating performance, or to cash flows from operating activities (as determined in accordance with GAAP) as a measure of liquidity. Our method of calculating EBITDA may differ from methods used by other companies and, as a result, EBITDA measures disclosed herein might not be comparable to other similarly titled measures used by other companies.

(2) Adjusted EBITDA is defined as EBITDA plus lower of cost or market write-downs on the inventories – minimum volumes. We believe that Adjusted EBITDA is the most useful measure in evaluating our performance because it eliminates the impact on operating results from the impairment of our inventories - minimum volumes.

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THREE MONTHS ENDED SEPTEMBER 30, 2002 COMPARED TO THREE MONTHS ENDED SEPTEMBER 30, 2001

We reported net earnings of $0.5 million for the three months ended September 30, 2002, compared to net earnings of $9.6 million for the three months ended September 30, 2001. After preferred stock dividends, the net (loss) attributable to common stockholders was $(0.5) million for the three months ended September 30, 2002, compared to net earnings of $7.2 million for the three months ended September 30, 2001. Basic and diluted loss per common share for the three months ended September 30, 2002 was $(0.01) based on 39.0 million weighted average common shares outstanding. Basic and diluted earnings per share for the three months ended September 30, 2001 was $0.23 per share and $0.17 per share, respectively, based upon 31.1 million weighted average common shares outstanding and 43.1 million weighted average diluted shares outstanding.

Product Supply, Distribution and Marketing

Our Product supply, distribution, and marketing operations include energy trading and risk management activities as defined by Emerging Issues Task Force Issue No. 98-10 (“EITF 98-10”), Accounting for Contracts Involved in Energy Trading and Risk Management Activities. In accordance with EITF 98-10, our energy trading and risk management activities are marked to market (i.e., recorded at fair value in the accompanying consolidated balance sheet). The mark-to-market method of accounting requires that the effect of changes in the fair value of our energy trading and risk management activities be recognized as assets and liabilities and included in net revenues attributable to Product supply, distribution, and marketing in the period of the change in value.

We seek to maintain a balanced position of forward sale commitments against our discretionary inventories and forward purchase commitments, thereby minimizing or eliminating exposure to commodity price fluctuations. We evaluate our exposure to commodity price risk from an overall portfolio basis that considers the continuous movement of discretionary inventory volumes and the open positions in energy services and risk management contracts. However, there are certain risks that we do not attempt to hedge or eliminate. For example, we attempt to exploit the price relationships between various delivery locations (referred to as “basis (geographical location) differentials”). These differentials create opportunities for increased operating margins when we predict the most beneficial location (highest value location) for sales of our discretionary inventories of refined products. However, the margins created from exploiting these market inefficiencies do not occur ratably over our reporting periods.

During a “contango” or “carry” market structure, we utilize our and third-party terminals to store Products to capture commodity price differentials between current and future months. Mark-to-market accounting will create volatility in our net operating margins due to either the widening or narrowing of these pricing spreads from the original spread relationship. If the spreads widen (narrow), marking these storage volumes and the related forward contracts to market will produce unrealized losses (gains) in interim reporting periods. These negative (positive) results will reverse and the originally anticipated spread will be recognized during the future periods when the physical Product inventory is delivered against the short future position. At September 30, 2002, we held approximately 1.3 million barrels of distillates in our terminals for future delivery.

The net revenues reported for the Product supply, distribution and marketing operations include amounts realized on Product sales, exchanges and arbitrage. The net revenues from our Product supply, distribution, and marketing operations for the three months ended September 30, 2002 were $7.6 million compared to $27.6 million for the three months ended September 30, 2001. Net revenues from our Product supply, distribution, and marketing operations are affected by our ability to take advantage of volatility in basis (geographical location) differentials that are caused by market imbalances. We experienced a lack of sustained volatility in basis (geographical location) differentials during the three months ended September 30, 2002, which prevented us from taking advantage of the opportunities that are created by selling Product in the highest value location; whereas, during the three months ended September 30, 2001, we were able to increase our net operating margins by taking advantage of the price volatility in the gasoline market. A disruption at a Chicago refinery in August 2001 resulted in supply and demand imbalances that increased volatility in basis (geographical location) differentials. This disruption increased the basis (geographical location) differentials for both gasoline and distillates between the Gulf Coast, Chicago and Group (Mid-Continent) regions, which created significant margin opportunities in arbitraging the basis (geographical location) differentials between those markets. The decrease in net revenues during the three months ended September 30, 2002 also was due, in part, to the recognition of unrealized losses on energy trading activities of approximately $2.5 million, which resulted from a decline in the value of crude oil options, and an unfavorable relationship between crude oil and refined product prices.

During the three months ended September 30, 2002, no impairment losses were recognized due to lower of cost or market write-downs on minimum inventory volumes. During the three months ended September 30, 2001, we recognized impairment

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losses of approximately $0.8 million due to lower of cost or market write-downs on the minimum inventory volumes. This write-down is included in net operating margins attributable to our Product supply, distribution, and marketing operations.

Terminals and Pipelines

The revenues from our terminal and pipeline operations for the three months ended September 30, 2002 were $17.4 million, compared to $15.5 million for the three months ended September 30, 2001. The increase of $1.9 million in revenues was due principally to increases in storage revenues of $0.8 million at our Brownsville, Texas facilities and $0.5 million at our Selma, North Carolina facilities, increases in throughput and storage revenues of $1.4 million due to increased volumes at our marketing and supply terminals, increases in transportation revenues of $0.4 million due to increased volumes through our pipelines, offset by a decrease in revenues of $1.2 million associated with the NORCO system, which was disposed on July 31, 2001. The net operating margins from our terminal and pipeline operations for the three months ended September 30, 2002 were $10.9 million, compared to $8.3 million for the three months ended September 30, 2001. The increase of $2.6 million in net operating margins was due principally to an increase in throughput and storage volumes at our terminals without a corresponding increase in direct operating costs and expenses, offset by the absence of the net operating margins from the NORCO system. For the month ended July 31, 2001, the net operating margins from the NORCO system were $0.6 million.

Our pipeline net operating margins per barrel of transported volumes were approximately $0.48 and $0.29 for the three months ended September 30, 2002 and 2001, respectively. The increase in net operating margins per barrel is due principally to the higher unit tariff being realized on one of our joint tariffs, as compared to the lower unit tariff associated with our NORCO system, which was disposed of in July 2001.

Costs and Expenses

Selling, general and administrative expenses for the three months ended September 30, 2002 were $9.3 million, compared to $8.5 million for the three months ended September 30, 2001. The increase of $0.8 million was due principally to compensation and travel expenses incurred for redundant employees involved in our corporate relocation and transition during the three months ended September 30, 2002.

Depreciation and amortization for the three months ended September 30, 2002 and 2001, was $4.3 million. The effects on depreciation and amortization associated with the disposition of the NORCO system were offset by depreciation and amortization on new additions to property, plant, and equipment.

We recognized special charges of $1.1 million during the three months ended September 30, 2002 related to the corporate relocation and transition. We expect to recognize an additional special charge of $1.0 million during the remainder of the year ending June 30, 2003 to complete the corporate relocation and transition. The additional special charges principally will consist of additional transition benefits, employee relocation costs, and moving costs related to the relocation of the corporate headquarters to the new office space.

Other Income and Expenses

Dividend income from and equity in earnings of petroleum related investments for the three months ended September 30, 2002 was $0.4 million, compared to $1.3 million for the three months ended September 30, 2001. The decrease of $0.9 million in dividend income was due principally to a decrease of $0.3 million in dividends received from Lion Oil Company and the absence of $0.6 million in dividends received from West Shore. We sold a portion of our investment in West Shore on July 27,2001 and our remaining investment on October 29, 2001.

Interest income for the three months ended September 30, 2002 was $0.1 million, compared to $0.3 million for the three months ended September 30, 2001. The decrease of $0.2 million was due primarily to a decrease in interest bearing cash balances and lower interest rates during the three months ended September 30, 2002. Pursuant to our cash management practices, excess cash balances are used to pay down our outstanding borrowings under our bank credit facility and commodity margin loan.

Interest expense for the three months ended September 30, 2002 was $3.3 million, compared to $3.1 million during the three months ended September 30, 2001. The increase of $0.2 million in interest expense was primarily attributable to an increase in the amount of debt outstanding during the current period, offset by lower interest rates during the three months ended September 30, 2002, as the average interest rate under our bank credit facility was 4.3% and 5.7% for the three months ended September 30, 2002 and 2001, respectively. For the three months ended September 30, 2002, our interest expense resulted from $1.6 million for outstanding borrowings under our bank credit facility, $0.1 million for outstanding letters of credit, $0.1 million for outstanding borrowings under our commodity margin loan, and $1.5 million in net payments for the interest rate swap. For the three months ended September 30, 2001, our interest expense resulted from $2.1 million for outstanding borrowings under our bank credit facility and Senior Notes, $0.1 million for outstanding letters of credit, $0.2 million for outstanding borrowings under our commodity margin loan, and $0.7 million in net payments for the interest rate swap.

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Other financing costs for the three months ended September 30, 2002 were $0.2 million, compared to $4.1 million for the three months ended September 30, 2001. The decrease of $3.9 million in other financing costs was due principally to a reduction in the amortization of deferred financing costs of $0.2 million and an unrealized gain on an interest rate swap of $0.1 million during the three months ended September 30, 2002, as compared to an unrealized loss on an interest rate swap of $3.6 million during the three months ended September 30, 2001. The swap agreement provides that we pay a fixed interest rate of 5.48% on the notional amount of $150 million in exchange for receiving a variable rate based on LIBOR so long as the one-month LIBOR interest rate does not rise above 6.75%. If the one-month LIBOR rate rises above 6.75%, the swap knocks out and we will receive no payments under the agreement until such time as the one-month LIBOR rate declines below 6.75%. At September 30, 2002 and 2001, the one-month LIBOR rate was 1.8% and 2.6%, respectively. This swap agreement expires in August 2003.

Loss on the disposition of assets, net for the three months ended September 30, 2001, consists of an $8.6 million gain on the sale of the NORCO system and an $9.9 million loss on the sale of West Shore shares.

Income Taxes

Income tax expense was $0.5 million for the three months ended September 30, 2002, which represents an effective combined federal and state income tax rate of 38.0%. Income tax expense was $5.9 million for the three months ended September 30, 2001, which represents an effective combined federal and state income tax rate of 38.0%.

Preferred Stock Dividends

Preferred stock dividends on our Series A Convertible Preferred Stock were $0.3 million and $2.4 million for the three months ended September 30, 2002 and 2001, respectively. The decrease in the current year dividend resulted from a reduction in the number of shares of Series A Convertible Preferred Stock outstanding during the current period. On June 28, 2002, we entered into an agreement with the holders of the Series A Convertible Preferred Stock (the “Preferred Stock Recapitalization Agreement”) to redeem a portion of the outstanding Series A Convertible Preferred Stock and warrants in exchange for cash, shares of common stock, and shares of a newly created and designated preferred stock (“Series B Redeemable Convertible Preferred Stock”). The Preferred Stock Recapitalization Agreement resulted in the redemption of 157,715 shares of Series A Convertible Preferred Stock and warrants to purchase 9,841,493 shares of common stock in exchange for the (i) issuance of 72,890 shares of Series B Redeemable Convertible Preferred Stock with a fair value of approximately $80.9 million, (ii) issuance of 11,902,705 shares of common stock with a fair value of approximately $59.5 million, and (iii) a cash payment of approximately $21.3 million.

Preferred stock dividends on our Series B Redeemable Convertible Preferred stock were $0.7 million for the three months ended September 30, 2002. There were no shares of Series B Redeemable Convertible Preferred stock outstanding during the three months ended September 30, 2001. The initial carrying amount of the Series B Redeemable Convertible Preferred Stock of approximately $80.9 million will be decreased ratably over its 5-year term until it equals its liquidation value of approximately $72.9 million with an equal reduction in the amount of preferred stock dividends recorded for financial reporting purposes. The amount of the dividend recognized for financial reporting purposes is composed of the amount of the dividend payable to the holders of the Series B Redeemable Convertible Preferred stock of $1.1 million, offset by the amortization of the premium on the carrying amount of the Series B Redeemable Convertible Preferred stock of $0.4 million.

LIQUIDITY, CAPITAL RESOURCES, AND COMMODITY PRICE RISK

At September 30, 2002, our current assets exceeded our current liabilities by $118.5 million, compared to $162.2 million at June 30, 2002. The decrease of $44.0 million in working capital is due principally to an increase in trade accounts payable and an increase in unrealized losses on energy services and risk management contracts, offset by an increase in trade accounts receivable.

The increase in accounts receivable of $25.9 million is due principally to an increase in the volume of daily-priced rack sales, which are billed on a gross basis, compared to exchange transactions, which are billed on a net basis, and an increase in Product supply, distribution, and marketing volumes coupled with a corresponding increase in commodity prices. Our gross revenues for the Product supply, distribution, and marketing operations were approximately $1.7 billion for the three months ended September 30, 2002, compared to approximately $1.5 billion for the three months ended September 30, 2001.

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Our inventories—discretionary volumes are held for sale or exchange in the ordinary course of business and consist of Products, primarily gasolines and distillates. Our inventories—discretionary volumes are presented in the accompanying consolidated balance sheet as current assets and are carried at fair value. Inventories—discretionary volumes are as follows (in thousands):

	September 30, 2002				June 30, 2002
	Amount		Bbls		Amount		Bbls
Products held for sale or exchange	$	146,317		4,196	$	158,261		5,224
Products due to others under exchange agreements, net		33,924		1,019		16,908		525
Inventories—discretionary volumes	$	180,241		5,215	$	175,169		5,749

During the last six months of the year ended June 30, 2002, we increased our discretionary inventory of distillates to capitalize on the “carry” or “contango” market structure. During a “contango” market, we utilize our and third-party terminals to store Products to capture commodity price differentials between current and future months. At September 30, 2002, we held approximately 1.3 million barrels of distillates in our terminals for future delivery.

Our inventories—discretionary volumes are an integral component of our overall energy trading and risk management activities. We evaluate the level of inventories—discretionary volumes in combination with energy trading and risk management disciplines (including certain hedging strategies, forward purchases and sales, swaps and other financial instruments) to manage market exposure, primarily commodity price risk. We evaluate the market exposure from an overall portfolio basis that considers both continuous movement of physical inventory balances and related open positions in energy trading and risk management contracts.

Our inventories—minimum volumes are required to be held for operating balances in the conduct of our overall operating activities. We do not intend to sell or exchange these inventories in the ordinary course of business and, therefore, we do not hedge the market risks associated with this minimum inventory. Our inventories—minimum volumes are presented in the accompanying consolidated balance sheet as non-current assets and are carried at the lower of cost or market. Inventories—minimum volumes are as follows (in thousands):

	September 30, 2002				June 30, 2002
	Amount		Bbls		Amount		Bbls
Gasolines	$	27,855		1,200	$	27,855		1,200
Distillates		17,443		800		17,443		800
Inventories—minimum volumes	$	45,298		2,000	$	45,298		2,000

During the three months ended September 30, 2001, we recognized an impairment loss of approximately $0.8 million due to lower of cost or market write-downs on this minimum inventory. This write-down is included in net operating margins attributable to our Product supply, distribution, and marketing operations. At September 30, 2002 and June 30, 2002, the weighted average adjusted cost basis of our inventories—minimum volumes was $0.54 per gallon.

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Relative month-end commodity prices from June 30, 2001 to September 30, 2002 (NYMEX close on the last day of the month) are as follows:

	Crude		Heating Oil		Gasoline
6/30/01		$ 26.25		.709		.721
7/31/01		26.35		.697		.732
8/31/01		27.20		.766		.806
9/30/01		23.43		.664		.680
10/31/01		21.18		.598		.552
11/30/01		19.44		.532		.534
12/31/01		19.84		.551		.573
1/31/02		19.48		.523		.559
2/28/02		21.74		.563		.581
3/31/02		26.31		.669		.825
4/30/02		27.29		.689		.823
5/31/02		25.31		.630		.738
6/30/02		26.86		.680		.794
7/31/02		27.02		.676		.830
8/31/02		28.98		.748		.814
9/30/02		30.45		.802		.814

The following table indicates the maturities of our energy services and risk management contracts, including the credit quality of our counterparties to those contracts with unrealized gains at September 30, 2002.

	Fair value of contracts (in thousands)
	Maturity less than 1 year			Maturity 1-3 years			Maturity 4-5 years		Maturity in excess of 5 years		Total
Unrealized gain position—asset
Energy services contracts:
Investment grade	$	1,609			70			—		—		1,679
Non-investment grade		3,074			7,227			—		—		10,301
No external rating		5,506			588			—		—		6,094
		10,189			7,885			—		—		18,074
Risk management contracts—     NYMEX futures contracts		18,161			5,627			—		—		23,788
	$	28,350			13,512			—		—		41,862
Unrealized loss position—liability
Energy services contracts	$	(17,492	)		(407	)		—		—		(17,899	)
Risk management contracts—     NYMEX futures contracts		(24,680	)		(19	)		—		—		(24,699	)
	$	(42,172	)		(426	)		—		—		(42,598	)
Net unrealized gain (loss)     position—asset (liability)	$	(13,822	)		13,086			—		—		(736	)

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At September 30, 2002, the unrealized gain on our energy services contracts with non-investment grade counterparties was approximately $10.3 million. A single industrial/commercial end-user represented approximately $9.0 million of that unrealized gain. At September 30, 2002, we also had energy services contracts with that end-user that were in an unrealized loss position of approximately $2.9 million. Therefore, the fair value of our energy services contracts with that industrial/commercial end-user was approximately $6.1 million at September 30, 2002. The following table includes information about the changes in the fair value of our energy services contracts with that industrial/commercial end-user for the three months ended September 30, 2002 (in thousands):

Fair value at June 30, 2002	$	11,041
Amounts realized or otherwise settled during the year		(1,545	)
Change in fair value attributable to change in commodity prices		(3,942	)
Other changes in fair value		613
Fair value at September 30, 2002	$	6,167

We do not acquire or sell Products, futures contracts, or other financial instruments solely for the purpose of speculating on changes in commodity prices. Our Risk Management Committee reviews the discretionary inventory and related open positions in energy services and risk management contracts on a regular basis in order to ensure compliance with our inventory and risk management policies. We have adopted policies under which changes to our net risk position, which is subject to commodity price risk, requires the prior approval of our Audit Committee of the Board of Directors.

Our inventories—discretionary volumes, energy services contracts, and risk management contracts are the integral components of our overall energy trading and risk management activities. We evaluate our market risk exposure from an overall portfolio basis that considers changes in physical inventories—discretionary volumes, open positions in energy services contracts, and open positions in risk management contracts. We have established risk management policies and procedures to monitor and control our market risk exposure. Our overall risk management objective is to minimize our exposure to changes in commodity prices. We accomplish this objective by entering into risk management contracts that offset the changes in the values of our inventories—discretionary volumes and energy services contracts when there are changes in commodity prices. At September 30, 2002, our open positions in risk management contracts include forward contracts (purchases and sales), swaps, and other financial instruments to manage market exposure, primarily commodity price risk.

We principally utilize exchange-traded risk management contracts to manage our commodity price risk. These contracts require us to maintain initial and variation margin deposits with a third party financial intermediary. At September 30, 2002 we had $9.4 million on deposit to cover our margin requirements on open risk management contracts, which consisted solely of an initial margin deposit. At June 30, 2002, we had $8.6 million on deposit to cover our margin requirements on open risk management contracts, which consisted solely of an initial margin deposit. At September 30, 2002, a $0.05 per gallon unfavorable change in commodity prices would have required us to deposit approximately $3.6 million in variation margin. Conversely, a $0.05 per gallon favorable change in commodity prices would have permitted us to reduce the deposit in our margin account by approximately $3.6 million. We have the contractual right to request that the counterparties to our energy services contracts post additional letters of credit or make additional cash deposits with us to assist us in meeting our obligations to cover our margin requirements.

Excluding the acquisition of the Products terminal in Brownsville, Texas, capital expenditures for the three months ended September 30, 2002 were $1.4 million for terminal and pipeline facilities and assets to support these facilities. Capital expenditures for the remainder of the year ending June 30, 2003, are estimated to be approximately $4.0 million. Future capital expenditures will depend on numerous factors, including the availability, economics and cost of appropriate acquisitions which we identify and evaluate; the economics, cost and required regulatory approvals with respect to the expansion and enhancement of existing systems and facilities; customer demand for the services we provide; local, state and federal governmental regulations; environmental compliance requirements; and the availability of debt financing and equity capital on acceptable terms.

Our bank credit facility provides for a maximum borrowing line of credit that is the lesser of (i) $300 million and (ii) the borrowing base. The borrowing base is a function of our accounts receivable, inventory, exchanges, margin deposits, open positions of energy services and risk management contracts, outstanding letters of credit, and outstanding indebtedness as defined in the facility. The borrowing base was $274 million at September 30, 2002. Borrowings under the bank credit facility are secured by substantially all of our assets. The terms of the bank credit facility include financial covenants relating to fixed charge coverage, current ratio, maximum leverage ratio, consolidated tangible net worth, capital expenditures, cash distributions and open inventory positions that are tested on a quarterly and annual basis. As of September 30, 2002, we were in compliance with all covenants included in the facility. At September 30, 2002, we had borrowings of $140.0 million

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outstanding and letters of credit of $15.7 outstanding under the bank credit facility. We also had the ability to borrow an additional $118.0 million under the facility based on the borrowing base computation at September 30, 2002.

We believe that our current working capital position; future cash expected to be provided by operating activities; available borrowing capacity under our bank credit facility and commodity margin loan; and our relationship with institutional lenders and equity investors should enable us to meet our planned capital and liquidity requirements.

Net cash provided by operating activities of $33.7 million for the three months ended September 30, 2002 was due principally to increases in trade accounts payable, inventory due under exchange agreements, and an increase in unrealized losses on energy services and risk management contracts, offset by an increase in trade accounts receivable. The net cash used by operating activities of $23.7 million for the three months ended September 30, 2001 was due principally to an increase in trade accounts receivable and decreases in trade accounts payable and inventory due under exchange agreements, offset by a decrease in unrealized gains on energy services and price risk management activities and inventories – discretionary volumes.

Net cash used by investing activities of $7.6 million for the three months ended September 30, 2002 was due principally to capital expended for construction and improvements to existing operating facilities and acquisitions of $2.0 million and additional restricted cash of $5.7 million to cover required margin deposits on risk management contracts. Net cash provided by investing activities of $101.9 million during the three months ended September 30, 2001 was due principally to proceeds received from the sale of assets of $94.1 million.

Net cash used by financing activities of $41.3 million for the three months ended September 30, 2002 was due principally to repayments of borrowings under our bank credit facility of $47.0 million offset by proceeds from additional borrowings under our commodity margin loan of $5.8 million. Net cash used by financing activities of $41.0 million for the three months ended September 30, 2001 was due principally to repayments of borrowings under our bank credit facility and master shelf facility.

NEW ACCOUNTING PRONOUNCEMENTS WITH DELAYED EFFECTIVE DATES

In June 2002, the FASB issued SFAS No. 146, Accounting for Costs Associated with Exit or Disposal Activities, which addresses financial accounting and reporting for costs associated with exit or disposal activities and nullifies EITF Issue No. 94-3, Liability Recognition for Certain Employee Termination Benefits and Other Costs to Exit an Activity (including Certain Costs Incurred in a Restructuring). SFAS No. 146 applies to costs associated with an exit activity that does not involve an entity newly acquired in a business combination or with a disposal activity covered by SFAS No. 144. A liability for a cost associated with an exit or disposal activity generally shall be recognized and measured initially at its fair value in the period in which the liability is incurred. In periods subsequent to initial measurement, changes to the liability shall be measured using the credit-adjusted risk-free rate that was used to measure the liability initially. We are required to adopt the provisions of SFAS No. 146 for exit or disposal activities initiated after December 31, 2002. In connection with our corporate relocation and transition, we accrued our expected lease abandonment costs and severance costs. It would appear that SFAS No. 146 would not permit the accrual of those expected costs in advance of those costs being incurred. Had SFAS No. 146 been in effect as of July 1, 2001, we believe that approximately $3.1 million of accrued lease abandonment costs and approximately $0.7 million of accrued severance benefits would not have been recognized during the year ended June 30, 2002.

On October 25, 2002, the EITF reached a consensus that energy trading and risk management activities should no longer be marked to market pursuant to Issue No. 98-10. Rather, energy trading and risk management activities that qualify as derivative contracts pursuant to SFAS No. 133, Accounting for Derivative Instruments and Hedging Activities, will be recognized as assets and liabilities at fair value and energy trading and risk management activities that do not qualify as derivative contracts will be treated as executory contracts and recognized pursuant to the accrual method of accounting (i.e., when cash becomes due and payable to us or our customers pursuant to the terms of the contracts). That consensus also concluded that all physical inventories, including inventory volumes associated with energy trading activities, be carried at the lower of cost or market pursuant to Accounting Research Bulletin (“ARB”) No. 43, Chapter 4—Inventory Pricing. The consensus is effective for new energy trading and risk management activities commencing after October 25, 2002. Effective January 1, 2003 all energy trading and risk management activities that commenced on or before October 25, 2002, will be required to be adjusted through a cumulative effect adjustment retroactive to July 1, 2002. Therefore, we may be recasting our financial position and results of operations for the three months ended September 30, 2002 and the three months ending December 31, 2002 to adopt the new accounting requirements when we report our results for the three and nine months ending March 31, 2003. We currently are unable to determine the impact that the new accounting requirements will have on our financial position or results of operations due to (i) the complexities of determining which of our energy trading and risk management activities qualify as executory contracts or derivative contracts, (ii) whether any of the derivative contracts would qualify as “fair value” hedges of our inventories—discretionary volumes, and (iii) whether our inventories—discretionary volumes would qualify for the exception in ARB 43 to be carried at fair value. In the event that the new accounting requirements do not permit us to carry our inventories—discretionary volumes at fair value, we likely will recognize significant non-cash gains and losses associated with our risk management contracts that hedge those inventory volumes, resulting in significant fluctuations between periods in our reported net revenues attributable to our Product supply, distribution, and marketing operations.

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ITEM 3.    QUALITATIVE AND QUANTITATIVE DISCLOSURES ABOUT MARKET RISK

         The information contained in Item 3 updates, and should be read in conjunction with, information set forth in Part II, Item 7A in our Annual Report on Form 10-K for the year ended June 30, 2002, in addition to the interim consolidated financial statements and accompanying notes presented in Items 1 and 2 of this Quarterly Report on Form 10-Q.

         There are no material changes in market risks faced by us from those reported in our Annual Report on Form 10-K for the year ended June 30, 2002.

ITEM 4.    CONTROLS AND PROCEDURES

         Within the 90 days prior to the date of this report, we carried out an evaluation, under the supervision and with the participation of our management, including our Chief Executive Officer and Chief Financial Officer, of the effectiveness of the design and operation of TransMontaigne’s disclosure controls and procedures pursuant to Exchange Act Rule 13a-14. Based upon that evaluation, our Chief Executive Officer and Chief Financial Officer concluded that TransMontaigne’s disclosure controls and procedures are effective in timely alerting them to material information required to be included in TransMontaigne’s periodic Securities and Exchange Commission filings relating to TransMontaigne (including its consolidated subsidiaries). There were no significant changes in TransMontaigne’s internal controls or in other factors that could signficantly affect these internal controls subsequent to the date of our most recent evaluation.

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PART II. OTHER INFORMATION

ITEM 6.    EXHIBITS AND REPORTS ON FORM 8-K

(a)      Exhibits:

3.2	Amended and Restated By-Laws of TransMontaigne Inc. as of October 1, 2002. FILED HEREWITH
10.1	Change in Control Agreement between TransMontaigne Inc. and Donald H. Anderson dated April 12, 2001. FILED HEREWITH
10.2	Change in Control Agreement between TransMontaigne Inc. and Erik B. Carlson dated April 12, 2001. FILED HEREWITH
10.3	Change in Control Agreement between TransMontaigne Inc. and Larry F. Clynch dated April 12, 2001. FILED HEREWITH
10.4	Change in Control Agreement between TransMontaigne Inc. and William S. Dickey dated April 12, 2001. FILED HEREWITH
10.5	Change in Control Agreement between TransMontaigne Inc. and Harold R. Logan, Jr. dated April 12, 2001. FILED HEREWITH
10.6	Change in Control Agreement between TransMontaigne Inc. and Randall J. Larson dated May 1, 2002. FILED HEREWITH
99.1	Certification of Chief Executive Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002. FILED HEREWITH
99.2	Certification of Chief Financial Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002. FILED HEREWITH

(b)      Reports on Form 8-K:

         A Current Report on Form 8-K filed on July 15, 2002 contained disclosures under Item 5, Other Events, and Item 7, Exhibits.

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SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.

Dated: November 14, 2002	TRANSMONTAIGNE INC. (Registrant)
	/s/ DONALD H. ANDERSON
	Donald H. Anderson President, Chief Executive Officer, Chief Operating Officer and Vice Chairman

/s/ HAROLD R. LOGAN,JR.

Harold R. Logan, Jr.
Executive Vice President, Chief Financial Officer and Treasurer

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CERTIFICATIONS

I, Donald H. Anderson, President, Chief Executive Officer, Chief Operating Officer and Vice Chairman of TransMontaigne Inc., certify that:

1.	I have reviewed this quarterly report on Form 10–Q of TransMontaigne Inc. (“Registrant”);
2.	Based on my knowledge, this quarterly report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this quarterly report;
3.	Based on my knowledge, the financial statements, and other financial information included in this quarterly report, fairly present in all material respects the financial condition, results of operations and cash flows of the Registrant as of, and for, the periods presented in this quarterly report;
4.	The Registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a–14 and 15d–14) for the Registrant and we have:

a)	designed such disclosure controls and procedures to ensure that material information relating to the Registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this quarterly report is being prepared;
b)	evaluated the effectiveness of the Registrant’s disclosure controls and procedures as of a date within 90 days prior to the filing date of this quarterly report (the “Evaluation Date”); and
c)	presented in this quarterly report our conclusions about the effectiveness of the disclosure controls and procedures based on our evaluation as of the Evaluation Date;

5. The Registrant’s other certifying officer and I have disclosed, based on our most recent evaluation, to the Registrant’s auditors and the audit committee of Registrant’s board of directors (or persons performing the equivalent function):

a)	all significant deficiencies in the design or operation of internal controls which could adversely affect the Registrant’s ability to record, process, summarize and report financial data and have identified for the Registrant’s auditors any material weaknesses in internal controls; and
b)	any fraud, whether or not material, that involves management or other employees who have a significant role in the Registrant’s internal controls; and

6. The Registrant’s other certifying officer and I have indicated in this quarterly report whether or not there were significant changes in internal controls or in other factors that could significantly affect internal controls subsequent to the date of our most recent evaluation, including any corrective actions with regard to significant deficiencies and material weaknesses.

Date: November 14, 2002	/s/ DONALD H. ANDERSON
	Donald H. Anderson President, Chief Executive Officer, Chief Operating Officer and Vice Chairman

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I, Harold R. Logan, Jr, Executive Vice President, Chief Financial Officer and Treasurer of TransMontaigne Inc., certify that:

1.	I have reviewed this quarterly report on Form 10–Q of TransMontaigne Inc. (“Registrant”);
2.	Based on my knowledge, this quarterly report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this quarterly report;
3.	Based on my knowledge, the financial statements, and other financial information included in this quarterly report, fairly present in all material respects the financial condition, results of operations and cash flows of the Registrant as of, and for, the periods presented in this quarterly report;
4.	The Registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a–14 and 15d–14) for the Registrant and we have:

a)	designed such disclosure controls and procedures to ensure that material information relating to the Registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this quarterly report is being prepared;
b)	evaluated the effectiveness of the Registrant’s disclosure controls and procedures as of a date within 90 days prior to the filing date of this quarterly report (the “Evaluation Date”); and
c)	presented in this quarterly report our conclusions about the effectiveness of the disclosure controls and procedures based on our evaluation as of the Evaluation Date;

5. The Registrant’s other certifying officer and I have disclosed, based on our most recent evaluation, to the Registrant’s auditors and the audit committee of Registrant’s board of directors (or persons performing the equivalent function):

a)	all significant deficiencies in the design or operation of internal controls which could adversely affect the Registrant’s ability to record, process, summarize and report financial data and have identified for the Registrant’s auditors any material weaknesses in internal controls; and
b)	any fraud, whether or not material, that involves management or other employees who have a significant role in the Registrant’s internal controls; and

6. The Registrant’s other certifying officer and I have indicated in this quarterly report whether or not there were significant changes in internal controls or in other factors that could significantly affect internal controls subsequent to the date of our most recent evaluation, including any corrective actions with regard to significant deficiencies and material weaknesses.

Date: November 14, 2002	/s/HAROLD R. LOGAN, JR.
	Harold R. Logan, Jr. Executive Vice President, Chief Financial Officer and Treasurer

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Exhibit Index

3.2	Amended and Restated By-Laws of TransMontaigne Inc. as of October 1, 2002. FILED HEREWITH
10.1	Change in Control Agreement between TransMontaigne Inc. and Donald H. Anderson dated April 12, 2001. FILED HEREWITH
10.2	Change in Control Agreement between TransMontaigne Inc. and Erik B. Carlson dated April 12, 2001. FILED HEREWITH
10.3	Change in Control Agreement between TransMontaigne Inc. and Larry F. Clynch dated April 12, 2001. FILED HEREWITH
10.4	Change in Control Agreement between TransMontaigne Inc. and William S. Dickey dated April 12, 2001. FILED HEREWITH
10.5	Change in Control Agreement between TransMontaigne Inc. and Harold R. Logan, Jr. dated April 12, 2001. FILED HEREWITH
10.6	Change in Control Agreement between TransMontaigne Inc. and Randall J. Larson dated May 1, 2002. FILED HEREWITH
99.1	Certification of Chief Executive Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002. FILED HEREWITH
99.2	Certification of Chief Financial Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002. FILED HEREWITH

EX-3.2

Exhibit 3.2

TransMontaigne Inc.

By - Laws

(As of October 1, 2002)

ARTICLE 1

Offices

Section 1.1   Registered Office.

          The registered office of the Corporation shall be in Wilmington, Delaware.

Section 1.2   Corporate Office.

          The Corporation may have its office or offices at such place or places as the Board of Directors, in its discretion, may from time to time determine.

ARTICLE 2

Meetings of Stockholders

Section 2.1   Time and Place.

          Any meeting of the stockholders may be held at such time and such place, either within or without the State of Delaware, as shall be designated from time to time by resolution of the Board of Directors or as shall be stated in a duly authorized notice of the meeting.

Section 2.2   Annual Meeting.

          The annual meeting of the stockholders shall be held on the date and at the time fixed, from time to time, by the Board of Directors; provided however, that unless the Board otherwise designates, the annual meeting shall be held on or before the third Wednesday of December of each year, at a time and place set by the Chief Executive Officer, after due notice. The annual meeting shall be for the purpose of electing a Board of Directors and transacting such other business as may properly be brought before the meeting.

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Section 2.3   Special Meetings.

          Special meetings of the stockholders, for any purpose or purposes, unless otherwise prescribed by statute or by the Certificate of Incorporation, may be called by the President or the Board of Directors and shall be called by the President or Secretary at the written request of stockholders owning a majority of the entire capital stock of the Corporation issued and outstanding and entitled to vote. Such request shall state the purpose or purposes of the proposed meeting.

Section 2.4   Notices.

          Written notice stating the place, date, and hour of the meeting and, in case of a special meeting, the purpose or purposes for which the meeting is called, shall be given not less than ten nor more than sixty days before the date of the meeting, except as otherwise required by statute or the Certificate of Incorporation, either personally or by mail, prepaid telegram, telex, cablegram, or radiogram, to each stockholder of record entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, addressed to the stockholder at his address as it appears on the stock records of the Corporation. If given personally or otherwise than by mail, such notice shall be deemed to be given when either handed to the stockholder or delivered to the stockholder’s address as it appears on the stock records of the Corporation.

Section 2.5   Record Date.

          In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting, or at any adjournment of a meeting, of stockholders; or entitled to express consent to corporate action in writing without a meeting; or entitled to receive payment of any dividend or other distribution or allotment of any rights; or entitled to exercise any rights in respect of any change, conversion, or exchange of stock; or for the purpose of any other lawful action; the Board of Directors may fix, in advance, a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors. The record date for determining the stockholders entitled to notice of or to vote at any meeting of the stockholders or any adjournment thereof shall not be more than sixty nor less than ten days before the date of

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such meeting. The record date for determining the stockholders entitled to consent to corporate action in writing without a meeting shall not be more than ten days after the date upon which the resolution fixing the record date is adopted by the Board of Directors. The record date for any other action shall not be more than sixty days prior to such action. If no record date is fixed, (i) the record date for determining stockholders entitled to notice of or to vote at any meeting shall be at the close of business on the day next preceding the day on which notice is given or, if notice is waived by all stockholders, at the close of business on the day next preceding the day on which the meeting is held; (ii) the record date for determining stockholders entitled to express consent to corporate action in writing without a meeting, when no prior action by the Board of Directors is required, shall be the first date on which a signed written consent setting forth the action taken or to be taken is delivered to the Corporation and, when prior action by the Board of Directors is required, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (iii) the record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating to such other purpose. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

Section 2.6   Voting List.

          The Secretary shall prepare and make, at least ten days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order and showing the address and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten days prior to the meeting, either at a place within the city where the meeting is to be held (which place shall be specified in the notice of the meeting) or, if not so specified, at the place where the meeting is to be held. The list shall be produced and kept at the place of the meeting during the whole time thereof and may be inspected by any stockholder who is present.

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Section 2.7   Quorum.

          The holders of a majority of the stock issued and outstanding and entitled to vote at the meeting, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of business, except as otherwise provided by statute or by the Certificate of Incorporation. If, however, such a quorum shall not be present at any meeting of stockholders, the stockholders entitled to vote, present in person or represented by proxy, shall have the power to adjourn the meeting from time to time, without notice if the time and place are announced at the meeting, until a quorum shall be present. At such adjourned meeting at which a quorum shall be present, any business may be transacted which might have been transacted at the original meeting. If the adjournment is for more than thirty days or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.

Section 2.8   Voting and Proxies.

          At every meeting of the stockholders, each stockholder shall be entitled to one vote, in person or by proxy, for each share of stock having voting power held by such stockholder, but no proxy shall be voted after three years from its date unless the proxy provides for a longer period. Any stockholder entitled to vote may vote by proxy, provided that the instrument authorizing such proxy to act shall have been executed in writing (which shall include telegraphing or cabling) by the stockholder himself or his duly authorized attorney. When a quorum is present at any meeting, the vote of the holders of a plurality shall decide all elections of directors. All other questions shall be decided by a majority of the stock having voting power present in person or represented by proxy, unless the question is one upon which, by express provision of the statutes or of the Certificate of Incorporation, a different vote is required, in which case such express provision shall govern.

Section 2.9   Waiver.

          Attendance of a stockholder of the Corporation, either in person or by proxy, at any meeting, whether annual or special, shall constitute a waiver of notice of such meeting, except where a stockholder attends a meeting for the express purpose of

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objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. A written waiver of notice of any such meeting signed by a stockholder or stockholders entitled to such notice, whether before, at, or after the time for notice or the time of the meeting, shall be equivalent to notice. Neither the business to be transacted at, nor the purpose of, any meeting need be specified in any written waiver of notice.

Section 2.10   Judges of Election.

          The Board of Directors may appoint Judges of Election to serve at any election of directors and at balloting on any other matter that may properly come before a meeting of stockholders. If no such appointment shall be made, or if any of the Judges so appointed shall fail to attend, or refuse or be unable to serve, then such appointment may be made by the presiding officer at the meeting.

Section 2.11   Consent of Stockholders in Lieu of Meeting.

          Any action required or permitted to be taken at any annual or special meeting of stockholders of the Corporation may be taken without a meeting, without prior notice, and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing. Any such consent may be in counterparts and shall bear the date of signature of each stockholder who signs the consent. No such consent shall be effective to taken any action unless, within sixty days following the date of the earliest signature thereon, the consent or counterparts thereof, bearing the signatures of holders of stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote were present and voted to take such action, are delivered to the Corporation by delivery to its principal place of business or to the Secretary of the Corporation. Any action taken pursuant to such consent shall be effective as of the date of the last signature thereon needed to make it effective unless otherwise provided in the

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consent. All counterparts of such consent necessary to make it effective shall be filed with the minutes of proceedings of the stockholders. If the action that is consented to is such as would have required the filing of a certificate under any provisions of the Delaware General Corporation Law if such action had been voted upon by stockholders at a meeting, the certificate filed shall state, in lieu of any statement concerning a vote of stockholders, that written consent has been given in accordance with the provisions of Section 228 of the Delaware General Corporation Law.

ARTICLE 3

Directors

Section 3.1   Number.

          The Board of Directors shall be comprised of no fewer than seven (7), nor more than eleven (11) members, as fixed from time to time by resolution of the Board of Directors; provided, however, that no action by the Board of Directors to reduce the size of the Board shall act to shorten the length of the term of any director at that time in office.

Section 3.2   Elections.

          Except as provided in Section 3.3 of this Article 3, the Board of Directors shall be elected at the annual meeting of the stockholders or at a special meeting called for that purpose. Each director shall hold such office until his successor is elected and qualified or until his earlier death, resignation or removal. Directors need not be shareholders.

Section 3.3   Vacancies.

          Any vacancy occurring on the Board of Directors and any directorship to be filled by reason of an increase in the Board of Directors may be filled by the affirmative vote of a majority of the remaining directors, although less than a quorum, or by a sole remaining director. Such newly elected director shall hold such office until his successor is elected and qualified or until his earlier resignation or removal.

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Section 3.4   Meetings.

         The first meeting of each newly elected Board of Directors elected at the annual meeting of stockholders shall be held immediately after, and at the same place as, the annual meeting of the stockholders, provided a quorum is present, and no notice of such meeting shall be necessary in order to legally constitute the meeting. The Board of Directors may, by resolution, establish a place and time for regular meetings which may thereafter be held without call or notice.

Section 3.5   Notice of Special Meetings.

         Special meetings may be called by the Chairman of the Board, the President, any Vice-president or any two members of the Board of Directors. Such notice may be given to each member of the Board of Directors by mail by the Secretary, the President, or the members of the board calling the meeting by depositing the same in the United States mail, postage prepaid, at least five days before the meeting, addressed to the director at the last address he has furnished to the Corporation for this purpose, and any notice so mailed shall be deemed to have been given at the time when mailed. Notice may also be given at least forty-eight hours before the meeting in person, by telephone, or by a writing (including prepaid telegram, telex, cablegram, radiogram, or similar writing), and such notice shall be deemed to have been given when the personal or telephone conversation occurs or when the writing is either personally delivered to the director or is delivered to such address as is stated above, as the case may be.

Section 3.6   Quorum.

         At all meetings of the Board of Directors, a majority of the total number of directors shall constitute a quorum for the transaction of business, and the act of a majority of the directors present at any meeting at which a quorum is present shall be the act of the Board of Directors, except as otherwise specifically required by statute, the Certificate of Incorporation, or these By Laws. If less than a quorum is present, the director or directors present may adjourn the meeting from time to time without further notice. Voting by proxy is not permitted at meetings of the Board of Directors.

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Section 3.7   Waiver.

         Attendance of a director at a meeting of the Board of Directors shall constitute a waiver of notice of such meeting, except where a director attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. A written waiver of notice signed by a director or directors entitled to such notice, whether before, at, or after the time of the meeting, shall be equivalent to the giving of such notice.

Section 3.8    Action Without Meeting.

         Any action required or permitted to be taken at a meeting of the Board of Directors may be taken without a meeting if a consent in writing setting forth the action so taken shall be signed by all of the directors and filed with the minutes of proceedings of the Board of Directors. Any such consent may be in counterparts and shall be effective on the date of the last signature thereon unless otherwise provided therein.

Section 3.9   Attendance by Telephone.

         Members of the Board of Directors may participate in a meeting of such board by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at such meeting.

Section 3.10   Removal of Directors.

         At any special meeting of the stockholders, duly called as provided in the By-Laws, any director may, by the affirmative vote of the Holders of the majority of all the shares of stock outstanding and entitled to vote for the election of directors, be removed from office, either with or without cause. At such a meeting a successor to such removed director may be elected by a plurality of the votes cast, or if any such vacancy is not so filled, it may be filled by the directors provided in these By-Laws.

Section 3.11   Resignation of Directors.

         Any director may resign at any time by giving written notice of such resignation to the Board of Directors, the Chairman of the Board, the President and any Vice-president or the Secretary. Any such resignation shall take effect at the time specified therein, or if

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no time be specified, upon receipt thereof, the acceptance of such resignation shall not be necessary to make it effective.

Section 3.12   Compensation of Directors.

         Directors shall receive such reasonable compensation for their services as such, whether in the form of salary or fixed fee for attendance at meetings or other forms of compensation with expenses, if any, as the Board of Directors may from time to time determine. Nothing herein contained shall be construed to preclude any Director from serving the Corporation in any other capacity and receiving compensation therefor.

ARTICLE 4

Officers

Section 4.1   Officers.

         The Corporation shall have such officers, with such titles and directors, as the Board of Directors may determine. The officers of the Corporation may include a Chairman of the Board, a Vice Chairman of the Board, a President, one or more Executive Vice presidents, one or more Senior Vice Presidents, one or more Vice Presidents, a Secretary, a Treasurer, and such other officers as may be appointed in accordance with the provisions of Section 4.3. Any person may hold two or more of such offices.

Section 4.2   Election, Term of Office and Qualifications.

         Each officer (except such officers as may be appointed in accordance with the provisions of Section 4.3 of this Article) shall be elected by the Board of Directors. Each such officer (whether elected at the first meeting of the Board of Directors after the annual meeting of stockholders or to fill a vacancy or otherwise) shall hold his office until the first meeting of the Board of Directors after the next annual meeting of stockholders and until his successor shall have been elected, or until his death, or until he shall have resigned in the manner provided in Section 4.4 of this Article or shall have been removed in the manner provided in Section 4.5

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Section 4.3   Subordinate Officers and Agents.

         The Board of Directors from time to time may appoint other officers or agents (including one or more Assistant Vice-presidents, one or more Assistant Secretaries and one or more Assistant Treasurers), to hold office for such period, have such authority and perform such duties as are provided in these By-Laws or as may be provided in the resolutions appointing them. The Board of Directors may delegate to any officer or agent the power to appoint any such subordinate officers or agents and to prescribe their respective terms of office, authorities and duties.

Section 4.4   Resignations.

         Any officer may resign at any time provided the same would not result in a breach of any contract to which said person is a party, by giving written notice of such resignation to the Board of Directors, the President, a Vice-president or the Secretary. Unless otherwise specified in such written notice, such resignation shall take effect upon receipt thereof by the Board of Directors or any such officer.

Section 4.5   Removal.

         Any officer specifically designated in Section 4.1 may be removed at any time, either with or without cause, at any meeting of the Board of Directors by the vote of the majority of all the directors then in office. Any officer or agent appointed in accordance with the provisions of Section 4.3 of this Article may be removed, either with or without cause, by the Board of Directors at any meeting, by the vote of the majority of all the directors present at such meeting, or by any superior officer or agent upon whom such power of removal shall have been conferred by the Board of Directors.

Section 4.6   Vacancies.

         A vacancy in any office by reason of death, resignation, removal, disqualification or any other cause shall be filled for the unexpired portion of the term in the manner prescribed by these By-Laws for regular election or appointment to such office.

Section 4.7   The Chairman of the Board.

         The Chairman of the Board, if such officer has been appointed by the Board of Directors, shall preside at all meetings of the directors and stockholders; he shall be exofficio a member of all standing committees. Except where by law the signature of the

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President is required, the Chairman of the Board shall have the same power as the President to execute instruments on behalf of the Corporation; and he shall perform such other duties as the Board of Directors may from time to time prescribe. Except where by law the signature of the President is required, the Chairman of the Board shall have the same power as the President to execute instruments on behalf of the Corporation; and he shall perform such other duties as the Board of Directors may from time to time prescribe.

Section 4.8   The Vice Chairman of the Board.

         The Vice Chairman of the Board, if such officer has been appointed by the Board of Directors, shall be the chief executive officer of the Corporation. In the absence of the Chairman of the Board, or if such office is vacant, he shall preside at all meeting of the stockholders and of the Directors, and shall exercise all other powers and perform all other duties of the Chairman of the Board; he shall be ex officio a member of all standing committees; and he shall perform such other duties as the Board of Directors may from time to time prescribe. Except where by law the signature of the President is required, the Vice Chairman of the Board shall have the same powers as the President to execute instruments on behalf of the Corporation.

Section 4.9   The President.

         The President shall be the chief operating officer of the Corporation. In the absence of the Chairman of the Board and the Vice Chairman of the Board, or if such offices are vacant, he shall preside at all meetings of the stockholders and of the Directors, and shall exercise all other powers and perform all other duties of the Chairman of the Board and Vice Chairman of the Board; he shall be ex officio a member of all standing committees; and he shall perform such other duties as the Board of Directors may from time to time prescribe.

Section 4.9   The Vice-presidents.

         If there be more than one Vice-president, the Board of Directors may designate one of the Vice-presidents as Executive Vice-president, who shall be first in order of seniority, and may grant to others of the Vice-presidents such titles as shall indicate their relative seniority. The Vice-president, or if there be more than one, the Vice-presidents in

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the order of their seniority as indicated by such titles or as otherwise determined by the Board of Directors, shall, in the absence or disability of the President, exercise the powers and perform the duties of said officers; and he or they shall perform such duties as the Board of Directors or the President may from time to time prescribe.

Section 4.10   The Secretary.

         If requested, the Secretary shall attend all meetings of the Board of Directors and all meetings of the stockholders and record all the proceedings of the meetings of the Corporation and of the Board of Directors in a book to be kept for that purpose and shall perform similar duties for any committees of the Board of Directors when required. The Secretary shall give, or cause to be given, notice of all meetings of the stockholders and special meetings of the Board of Directors, and shall perform such other duties as may be prescribed by the Board of Directors or the President. The Secretary shall have custody of the corporate seal of the Corporation and he, or an Assistant Secretary, shall have authority to affix the seal to any instrument requiring it and when so affixed, it may be attested by his signature or by the signature of such Assistant Secretary. The Board of Directors may give general authority to any other officer to affix the seal of the Corporation and to attest the affixing by his signature.

Section 4.11   Assistant Secretaries.

         At the request of the Secretary or in his absence or disability; the Assistant Secretary designated by him (or in the absence of such designation, the Assistant Secretary designated by the Board of Directors, or the Chairman of the Board, or the President) shall perform all the duties of the Secretary, and, when so acting, shall have all the powers of and be subject to all restrictions upon the Secretary. The Assistant Secretaries shall perform such other duties as from time to time may be assigned to them respectively by the Board of Directors, the President or the Secretary.

Section 4.12   The Treasurer.

         The Treasurer shall:

         (a)   have charge of and supervision over and be responsible for the funds, securities, receipts and disbursements of the Corporation;

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          (b)   cause the moneys and other valuable effects of the Corporation to be deposited in the name and to the credit of the Corporation in such banks or trust companies or other depositaries as shall be selected or to be otherwise dealt with in such manner as the Board of Directors may direct;

         (c)   cause the funds of the Corporation to be disbursed by checks or drafts upon the authorized depositaries of the Corporation, and cause to be taken and preserved proper vouchers for all moneys disbursed;

         (d)   render to the Board of Directors or the President, whenever requested, a statement of the financial condition of the Corporation and of all his transactions as Treasurer;

         (e)   cause to be kept at the Corporation’s principal office correct books of account of all its business and transactions and such duplicate books of account as he shall determine and upon application cause such books or duplicates thereof to be exhibited to any director;

         (f)   be empowered, from time to time, to require from the officers or agents of the Corporation reports or statements giving such information as he may desire with respect to any and all financial transactions of the Corporation;

         (g)   in general, perform all duties incident to the office of Treasurer and such other duties as are given to him by these By-Laws or as from time to time may be assigned to him by the Board of Directors or the President.

Section 4.13   Assistant Treasurers.

         At the request of the Treasurer or in his absence or disability, the Assistant Treasurer designated by him (or in the absence of such designation, the Assistant Treasurer designated by the Board of Directors, or the President) shall perform all the duties of the Treasurer, and, when so acting, shall have all the powers of and be subject to all restrictions upon the Treasurer. The Assistant Treasurers shall perform such other duties as from time to time may be assigned to them respectively by the Board of Directors, the President or the Treasurer.

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Section 4.14   Salaries.

         The salaries of the officers of the Corporation shall be fixed from time to time by the Board of Directors, except that the Board of Directors may delegate to any person the power to fix the salaries or other compensation of any officers or agents appointed in accordance with the provisions of Section 4.3 of this Article. No officer shall be prevented from receiving such salary by reason of the fact that he is also a director of the Corporation.

Section 4.15   Surety Bonds.

         If the Board of Directors shall so require, any officer or agent of the Corporation shall execute to the Corporation a bond in such sum and with such surety or sureties as the Board of Directors may direct, conditioned upon the faithful discharge of his duties, including responsibility for negligence and for the accounting for all property, funds or securities of the Corporation which may come into his hands.

ARTICLE 5

Committees

Section 5.1   Designation of Committees.

         The Board of Directors may by resolution passed by a majority of the whole board, designate one or more committees for the performance of delegated or designated functions to the extent permitted by law, each committee to consist of one or more directors of the Corporation. The Board of Directors shall designate one or more directors as alternate members of any committee, who, in the order specified by the Board of Directors may replace any absent or disqualified member at any meeting of the committee. If at a meeting of any committee one or more of the members thereof should be absent or disqualified, and if either the Board of Directors has not so designated any alternate members, or the number of absent or disqualified members exceeds the number of alternate members who are present at such meeting, then the member or members of such committee (including alternates) present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another

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director to act at the meeting in the place of any such absent or disqualified member. The term of office of the members of each committee shall be fixed from time to time by the Board of Directors subject to these By-Laws, provided however that any committee member who ceases to be a member of the Board of Directors shall ipso facto cease to be a committee member.

Section 5.2   Committee Powers and Authority.

         The Board of Directors may provide, by resolution or by amendment to these By-Laws, that a committee may exercise all the power and authority of the Board of Directors in the management of the business and affairs of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers which may require it; provided, however, that a committee may not exercise the power or authority of the Board of Directors in reference to amending the Certificate of Incorporation (except that a committee may, to the extent authorized in the resolution or resolutions providing for the issuance of shares of stock adopted by the Board of Directors, pursuant to the Certificate of Incorporation, fix the designations and any of the preferences or rights of shares of preferred stock relating to dividends, redemption, dissolution, any distribution of property or assets of the Corporation, or the conversion into, or the exchange of shares for, share of any other class or classes or any other series of the same or any other class or classes of stock of the Corporation or fix the number of shares of any series of stock or authorize the increase or decrease of the shares of any series), adopting an agreement of merger or consolidation, recommending to the stockholders the sale, lease, or exchange of all or substantially all of the Corporation’s property and assets, recommending to the stockholders a dissolution of the Corporation or a revocation of a dissolution, or amending these By-Laws; and, unless the resolution expressly so provides, no such committee shall have the power or authority to declare a dividend, to authorize the issuance of stock or to adopt a certificate of ownership and merger pursuant to Section 253 of the Delaware Corporation Law.

Section 5.3   Committee Procedures.

         To the extent the Board of Directors or the committee does not establish other procedures for the committee, each committee shall be governed by the procedures

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established in Section 3.4 (except as they relate to an annual meeting of the Board of Directors) and Sections 3.5, 3.6, 3.7, 3.8, and 3.9 of these By-Laws, as if the committee were the Board of Directors.

ARTICLE 6

Indemnification

         Section 6.1   Expenses for Actions Other Than by or in the Right of the Corporation.

         The Corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending, or completed action, suit, or proceeding, whether civil, criminal, administrative, or investigative (other than an action by or in the right of the Corporation) by reason of the fact that he is or was a director or officer of the Corporation, or, while a director or officer of the Corporation, is or was serving at the request of the Corporation as a director, officer, employee, or agent of another corporation, partnership, joint venture, trust, association, or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit, or proceeding, if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit, or proceeding by judgment, order, settlement, conviction, or upon plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, that he had reasonable cause to believe that his conduct was unlawful.

         Section 6.2   Expenses for Actions by or in the Right of the Corporation.

         The Corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending, or completed action or suit by or in the

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right of the Corporation to procure a judgment in its favor by reason of the fact that he is or was a director or officer of the Corporation, or, while a director or officer of the Corporation, is or was serving at the request of the Corporation as a director, officer, employee, or agent of another corporation, partnership, joint venture, trust, association, or other enterprise, against expenses (including attorney’s fees) actually and reasonably incurred by him in connection with the defense or settlement of such action or suit, if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Corporation, except that no indemnification shall be made in respect of any claim, issue, or matter as to which such person shall have been adjudged to be liable to the Corporation unless and only to the extent that the Court of Chancery of the State of Delaware or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery of the State of Delaware or such other court shall deem proper.

         Section 6.3   Successful Defense.

         To the extent that any person referred to in the preceding two sections of this Article 6 has been successful on the merits or otherwise in defense of any action, suit, or proceeding referred to in such sections, or in defense of any claim, issue, or matter therein, he shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by him in connection therewith.

         Section 6.4   Determination to Indemnify.

         Any indemnification under the first two sections of this Article 6 (unless ordered by a court) shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the director or officer is proper in the circumstances because he has met the applicable standard of conduct set forth therein. Such determination shall be made (i) by the Board of Directors by a majority vote of a quorum consisting of directors who were not parties to such action, suit, or proceeding, or (ii) if such quorum is not obtainable or, even if obtainable, a quorum of disinterested

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directors so directs, by independent legal counsel in a written opinion, or (iii) by the stockholders.

         Section 6.5   Expense Advances.

         Expenses incurred by an officer or director in defending a civil or criminal action, suit, or proceeding may be paid by the Corporation in advance of the final disposition of such action, suit, or proceeding upon receipt of an undertaking by or on behalf of the director or officer to repay such amount if it shall ultimately be determined that he is not entitled to be indemnified by the Corporation as authorized in this Article 6.

         Section 6.6   Provisions Nonexclusive.

         The indemnification and advancement of expenses provided by, or granted pursuant to, the other sections of this Article 6, shall not be deemed exclusive of any other rights to which any person seeing indemnification or advancement of expenses may be entitled, under the Certificate of Incorporation or under any other by-law, agreement, insurance policy, vote of stockholders or disinterested directors, statute, or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office.

         Section 6.7   Insurance.

         By action of the Board of Directors, notwithstanding any interest of the directors in the action, the Corporation shall have power to purchase and maintain insurance, in such amounts as the Board of Directors deems appropriate, on behalf of any person who is or was a director or officer of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee, or agent of another Corporation, partnership, joint venture, trust, association, or other enterprise, against any liability asserted against him and incurred by him in any such capacity, or arising out of his status as such, whether or not he is indemnified against such liability or expense under the provisions of this Article 6 and whether or not the Corporation would have the power or would be required to indemnify him against such liability under the provisions of this Article 6 or of the Delaware General Corporation Law or by any other applicable law.

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         Section 6.8   Surviving Corporation.

         The Board of Directors may provide by resolution that references to “the Corporation” in this Article 6 shall include, in addition to this Corporation, all constituent corporations absorbed in a merger with this Corporation so that any person who was a director or officer of such a constituent corporation or is or was serving at the request of such constituent corporation as a director, employee, or agent of another corporation, partnership, joint venture, trust, association, or other entity shall stand in the same position under the provisions of this Article 6 with respect to this Corporation as he would if he had served this Corporation in the same capacity or is or was so serving such other entity at the request of this Corporation, as the case may be.

         Section 6.9   Inurement.

         The indemnification and advancement of expenses provided by, or granted pursuant to, this Article 6 shall continue as to a person who has ceased to be a director or officer and shall inure to the benefit of the heirs, executors, and administrators of such person.

         Section 6.10   Employees and Agents.

         To the same extent as it may do for a director or officer, the Corporation may indemnify and advance expenses to a person who is not and was not a director or officer of the Corporation but who is or was an employee or agent of the Corporation or who is or was serving at the request of the Corporation as a director, officer, employee, or agent of another corporation, partnership, joint venture, trust, association, or other enterprise.

ARTICLE 7

Stock

         Section 7.1   Certificates.

         Every holder of stock in the Corporation represented by certificates and, upon request, every holder of uncertificated shares shall be entitled to have a certificate, signed by or in the name of the Corporation by the chairman of the Board of Directors, or the President or Vice-president, and by the Secretary or an Assistant Secretary, or the

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Treasurer or an Assistant Treasurer of the Corporation, certifying the number of shares owned by him in the Corporation.

         Section 7.2   Facsimile Signatures.

         Where a certificate of stock is countersigned (i) by a transfer agent other than the Corporation or its employee or (ii) by a registrar other than the Corporation or its employee, any other signature on the certificate may be facsimile. In case any officer, transfer agent, or registrar who has signed, or whose facsimile signature or signatures have been placed upon, any such certificate shall cease to be such officer, transfer agent, or registrar, whether because of death, resignation, or otherwise, before such certificate is issued, the certificate may nevertheless be issued by the Corporation with the same effect as if he were such officer, transfer agent, or registrar at the date of issue.

         Section 7.3   Transfer of Stock.

         Transfers of shares of stock of the Corporation shall be made on the books of the Corporation only upon presentation of the certificate or certificates representing such shares properly endorsed or accompanied by a proper instrument of assignment, except as may otherwise be expressly provided by the laws of the State of Delaware or by order by a court of competent jurisdiction. The officers or transfer agents of the Corporation may, in their discretion, require a signature guaranty before making any transfer.

         Section 7.4   Lost Certificates.

         The Board of Directors may direct that a new certificate of stock be issued in place of any certificate issued by the Corporation that is alleged to have been lost, stolen, or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate to be lost, stolen, or destroyed. When authorizing such issue of a new certificate, the Board of Directors may, in its discretion and as a condition precedent to the issuance of a new certificate, require the owner of such lost, stolen, or destroyed certificate, or his legal representative, to give the Corporation a bond in such sum as it may reasonably direct as indemnity against any claim that may be made against the Corporation on account of the alleged loss, theft, or destruction of any such certificate or the issuance of such new certificate.

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         Section 7.5   Registered Stockholders.

         The Corporation shall be entitled to treat the person in whose name any shares of stock are registered on its books as the owner of such shares for all purposes and shall not be bound to recognize any equitable or other claim or interest in such shares on the part of any other person, whether or not the Corporation shall have notice of such claim or interest, except as expressly provided by the laws of Delaware.

ARTICLE 8

Seal

         The Board of Directors may adopt and provide a seal which shall be circular in form and shall bear the name of the Corporation and the words “SEAL” and “DELAWARE,” and which, when adopted, shall constitute the corporate seal of the Corporation. The seal may be used by causing it or a facsimile thereof to be impressed or affixed or manually reproduced.

ARTICLE 9

Fiscal Year

         The Board of Directors, by resolution, may adopt a fiscal year for the Corporation.

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ARTICLE 10

Amendment

         Subject to the Certificate of Incorporation, these By-Laws may at any time and from time to time be amended, altered, or repealed by the Board of Directors.

The undersigned Secretary of the Corporation hereby certifies that the foregoing By-Laws are the By-Laws of the Corporation in effect on October 1, 2002.

Erik B. Carlson, Secretary

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EX-10.1

Exhibit 10.1

CONFIDENTIAL

CHANGE IN CONTROL AGREEMENT

         This Agreement is between TransMontaigne Inc. (“Company”), and Donald H. Anderson (the “Executive”), and shall be effective as of April 12, 2001 (the “Effective Date”).

         WHEREAS the Board of Directors of the Company (the “Board”) has determined that it is in the best interests of the Company and its stockholders to assure that the Company will have the continued dedication of the Executive notwithstanding the possibility, threat or occurrence of a Change of Control (as defined in this Agreement) of the Company; and

         WHEREAS, the Board has further determined that in order to diminish the distraction of the Executive attributable to the uncertainties and risks created by a pending or threatened Change of Control and in order to encourage the Executive’s full attention and dedication to the Company both currently and in the event of any threatened or pending Change in Control, it is appropriate to provide the Executive with compensation and benefits upon the occurrence of a Change in Control which ensure that the compensation and benefits expectations of the Executive will be met and which are competitive with those of other corporations; and

         WHEREAS in order to accomplish these objectives, the Company and the Executive accordingly desire to enter into this Agreement on the terms and conditions set forth below;

         NOW, THEREFORE, in consideration of the promises and mutual covenants set forth herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:

         1.       Term of Agreement. The term of this Agreement (the “Term”) shall commence on the Effective Date and shall continue until the third anniversary thereof; provided, however, that on such anniversary date and on each subsequent anniversary of the Effective Date, the term of this Agreement shall automatically be extended for one additional year unless, not later than ninety (90) days prior to such anniversary date, either party shall have given notice that such party does not wish to extend the Term; and provided, further, that if an actual or threatened Change in Control (as defined in paragraph 3 below) shall have occurred during the original or any extended Term of this Agreement, then the Term of this Agreement shall continue for a period twenty-four (24) calendar months beyond the calendar month in which such actual or threatened Change in Control occurs.

         2.       Employment After Change in Control. If the Executive is in the employ of the Company on the date of an actual or threatened Change in Control, the Company shall continue Executive in its employ for the period commencing on the date of the

actual Change in Control and ending on the last day of the Term of this Agreement (the “Employment Period”). During the Employment Period, the Executive shall hold such position with the Company and exercise such authority and perform such duties as are substantially commensurate with the Executive’s position, authority and duties immediately prior to the threatened or actual Change in Control. The Executive agrees that, during the Employment Period, the Executive shall devote his full professional time and attention to the Executive’s duties and perform such duties faithfully and efficiently.

                  Notwithstanding anything in this Agreement to the contrary, if a Change in Control occurs and if the Executive’s employment with the Company is terminated prior to the date on which the Change in Control occurs, and if it is reasonably demonstrated by the Executive that such termination of employment (i) was at the request of a third party, who has taken steps reasonably calculated to effect a Change in Control or (ii) otherwise arose in connection with or anticipation of a Change in Control, then for all purposes of this Agreement, the “Employment Period” shall mean the date immediately prior to the date of such termination of employment.

         3.       Change in Control. For purposes of this Agreement, an actual “Change in Control” shall be deemed to have occurred if upon the occurrence of any of the following:

                  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

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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.

                  For the purposes of this Agreement, a “threatened Change in Control” means the determination by the Board, in the exercise of its reasonable business judgment, that a third person has taken steps to effect an actual Change in Control and that such actual Change of Control could occur within 90 days after such determination.

         4.       Compensation During the Employment Period. During the Employment Period, the Executive shall be compensated as follows:

                  a.   The Executive shall receive an annual salary which is not less than his or her annual salary immediately prior to the Employment Period and shall be eligible to receive an increase in annual salary which is not less favorable than increases in salary for the Company’s other executives with similar responsibilities and performance levels;

                  b.   the Executive shall be eligible to participate in short-term and long-term cash-based incentive compensation plans which, in the aggregate, provide bonus opportunities that are not less favorable to the Executive than the greater of (i) the opportunities provided to the Company’s other executives with similar responsibilities and performance levels; and, (ii) the opportunities provided to the Executive under all such plans in which the Executive was participating prior to the Employment Period;

                  c.   the Executive shall be eligible to participate in stock option, performance awards, restricted stock and other equity-based incentive compensation plans (the “Plans”) on a basis not less favorable to the Executive than the greater of the Plans available (i) to the Executive immediately prior to the Employment Period, or (ii) to other executives of the Company with similar responsibilities and performance levels; and,

                  d.   the Executive shall be eligible to receive employee benefits (including, but not limited to, tax-qualified and nonqualified savings plan benefits, medical insurance, disability income protection, life insurance coverage and death benefits) and perquisites which are not less favorable to the Executive than (i) the employee benefits and perquisites provided to the Company’s other executives, or (ii) the employee benefits and perquisites to which the Executive would be entitled under the Company’s employee benefit plans and perquisites as in effect immediately prior to the Employment Period.

         5.       Termination. For purposes of this Agreement, “Termination” shall mean termination of the employment of the Executive during the Employment Period (i) by the Company, for any reason other than death or Cause (as described below), or (ii) by resignation of the Executive for Good Reason. For the purposes of this Agreement, “Good Reason” shall include, but not be limited to, any of the following events:

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                  a.   the assignment to the Executive by the Company of duties inconsistent with, or a substantial alteration in the nature or status of, the Executive’s responsibilities immediately prior to a Change in Control.

                  b.   a reduction by the Company in the Executive’s compensation or benefits as in effect on the date of a Change in Control;

                  c.   a relocation of the Company’s principal offices to a location outside the Denver, Coloradometropolitan area, or the Executive’s relocation to any place other than the Denver, Coloradooffices of the Company, except for reasonably required travel by the Executive on the Company’s business.

                  d.   any material breach by the Company of any provision of this Agreement, if such material breach has not been cured within thirty (30) days following written notice of such breach by the Executive to the Company setting forth the nature of the breach;

                  e.   any failure by the Company to obtain the assumption and performance of this Agreement by any successor (by merger, consolidation or otherwise) or assign by the Company in accordance with paragraph 15(d) of this Agreement; or

                  f.   Executive determines, in his sole discretion, during the Employment Period, that circumstances have so changed that he is not willing to continue in his position with the Company and elects a Termination of his employment with the Company.

                  The date of the Executive’s Termination under this paragraph 5 shall be the date specified by the Executive or the Company, as the case may be, in a written notice to the other party complying with the requirements of paragraph 15(a) below. For purposes of this Agreement, “Cause” shall mean

                           (1)   the Executive’s material breach of the terms of this Agreement, if such material breach has not been substantially cured within thirty (30) days following written notice to the Executive from the Company of such breach setting forth with specificity the nature of the violation or, if cure cannot reasonably be effected within such 30-day period, if the Executive does not commence such cure within such 30-day period and thereafter pursue such cure continuously and with due diligence until cure has been effected;

                           (2)   the Executive’s willful dishonesty towards, fraud upon, felony crime against, deliberate material injury or material bad faith action with respect to, or deliberate or attempted injury to the Company; or

                           (3)   the Officer’s conviction for any felony crime (whether in connection with the Company’s affairs or otherwise).

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         6.       Severance Payments. Subject to the provisions of paragraph 9 below, in the event of a Termination described in paragraph 5 above:

                  a.   the Company shall pay the Executive’s unpaid salary, accrued vacation pay and unreimbursed business expenses through and including the date of Termination; and

                  b.   in addition, following Executive’s execution of a legal release in a form satisfactory to Company in its sole discretion reasonably exercised and drafted so as to ensure a final, complete and enforceable release of all claims that Executive has or may have against Company relating to or arising in any way from Executive’s employment with Company and/or the termination thereof, and complete and continuing confidentiality of Company’s proprietary information and trade secrets, the circumstances of Executive’s separation from Company, and compensation received by Executive in connection with that separation, in lieu of the amount otherwise payable under paragraph 4 above, the Executive shall continue to receive, at the Company’s expense, medical insurance, disability income protection, life insurance coverage and death benefits, and perquisites in accordance with subparagraph 4(d) above for a period of 24 months after the date of Termination (under COBRA or through an individual conversion policy, as appropriate) or until Executive becomes eligible for comparable benefits under benefit plans sponsored by another employer, and shall also be entitled to a lump sum payment in cash no later than ten (10) business days after the date of Termination equal to the sum of:

                           (1)   an amount equal to 2 times the Executive’s annual salary rate plus 2 times target bonus award in effect immediately prior to the date of Termination.

                           (2)   an amount equal to the assigned target bonus for the Executive for the year of Termination prorated through the date of Termination.

         7.       Deferred Compensation Plans.

                  a.   For purposes of this paragraph, “deferred compensation plans” shall mean all nonqualified deferred compensation plans presently maintained by the Company or adopted in the future by the Company. If an actual or threatened Change in Control occurs during the original or any extended Term of this Agreement, the Company shall, within thirty (30) days after the earlier of the date of such threatened Change in Control or the date of such actual Change in Control, establish a “rabbi trust” and transfer to such “rabbi trust” an amount of cash sufficient to provide all benefits accrued by the Executive under all deferred compensation plans. Thereafter, the Company will, at least quarterly, transfer to the “rabbi trust” an amount of cash sufficient to provide any additional benefits accrued by the Executive under all deferred compensation plans.

                  b.   In the event of a Termination as set forth in paragraph 5 above: (a) all of the Executive’s benefits, including without limitation matching contributions,

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under all deferred compensation plans shall be 100% vested, regardless of the Executive’s years of service with the Company and regardless of any vesting provisions of such deferred compensation plans; (b) the Executive will be entitled to all benefits, including without limitation matching contributions, under all deferred compensation plans for the year in which such Termination occurs, regardless of any provision in any such deferred compensation plan making such benefits contingent upon employment for a particular portion of the year or as of a particular day in that year or making such benefits contingent upon accrual of a specific number of hours, days, weeks, or months of service during that year.

                  c.   The provisions of paragraph 7(b) apply only in the event of a “Termination” as defined in paragraph 5. Under paragraph 5, the term “Termination means terminations of employment of the Executive during the “Employment Period.” Under paragraph 2, the “Employment Period” commences on the date of an actual Change in Control. Therefore, the provisions of paragraph 7(b) do not apply in the case of a termination of employment of the Executive unless such termination of employment of the Executive occurs on or after the date of an actual Change in Control and unless such termination of employment of the Executive also meets the other requirements of the definition of the term “Termination” set forth in Paragraph 5.

         8.       Stock Based Awards. In the event of a Termination as set forth in paragraph 5 above, the restrictions on any outstanding stock-based awards (including, without limitation, nonqualified stock options, incentive stock options and restricted stock) granted to Executive under any incentive plan or arrangement shall lapse and such stock-based awards shall become 100% vested, and all stock options and stock appreciation rights granted to Executive shall become immediately exercisable. Notwithstanding anything to the contrary in the Executive’s stock option agreements with the Company, all such stock options shall be exercisable for a period of twelve (12) months after the date of Termination (but in no event beyond the expiration date applicable to such stock options)

         9.       Make-Whole Payments. If any payment or benefit to which the Executive is entitled, whether under this Agreement or otherwise, in connection with a Change in Control or the Executive’s termination of employment (a “Payment”) is subject to any tax under section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), or any similar federal or state law (an “Excise Tax”), the Company shall pay to the Executive an additional amount (the “Make Whole-Amount”) which is equal to (i) the amount of the Excise Tax, plus (ii) the aggregate amount of any interest, penalties, fines or additions to any tax that are imposed in connections with such Excise Tax, plus (iii) all income, excise and other applicable taxes imposed on the Executive under the laws of any Federal, state or local government or taxing authority by reason of the payments required under clause (i) and clause (ii) and this clause (iii). Notwithstanding any other provisions of this Agreement, however, such Make Whole-Amount will not be paid to the Executive if the Payment is less than ten (10) percent above the maximum amount that may be paid without incurring Excise Tax; and in such event, the cash severance payments provided in paragraph 6 above and/or the outplacement services

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provided in paragraph 10 below, at the Executive’s election, shall be reduced to a level that results in the total Payment being equal to the maximum amount that may be paid without incurring Excise Tax.

                  a.   For purposes of determining the Make-Whole Amount, the Executive shall be deemed to be taxed at the highest marginal rate under all applicable local, state, federal and foreign income tax laws for the year in which the Make-Whole Amount is paid. The Make-Whole Amount payable with respect to an Excise Tax shall be paid by the Company coincident with the Payment with respect to which such Excise Tax relates.

                  b.   All calculations under this paragraph 9 shall be made initially by the Company and the Company shall provide prompt written notice thereof to the Executive to enable the Executive to timely file all applicable tax returns. Upon request of the Executive, the Company shall provide the Executive with sufficient tax and compensation data to enable the Executive or his tax advisor to independently make the calculations described in subparagraph (a) above and the Company shall reimburse the Executive for reasonable fees and expenses incurred for any such verification.

                  c.   If the Executive gives written notice to the Company of any objection to the results of the Company’s calculations within sixty (60) days of the Executive’s receipt of written notice thereof, the dispute shall be referred for determination to tax counsel selected by the independent auditors of the Company (“Tax Counsel”). The Company shall pay all reasonable fees and expenses of such Tax Counsel. Pending such determination by Tax Counsel, the Company shall pay the Executive the Make-Whole Amount as determined by the Company in good faith. The Company shall pay the Executive any additional amount determined by Tax Counsel to be due under this paragraph 9 (together with interest thereon at a rate equal to 120% of the Federal short-term rate compounded dailydetermined under section 1274(d) of the Code) promptly after such determination.

                  d.   The determination by Tax Counsel shall be conclusive and binding upon all parties unless the Internal Revenue Service, a court of competent jurisdiction, or such other duly empowered governmental body or agency (a “Tax Authority”) determines that the Executive owes a greater or lesser amount of Excise Tax with respect to any Payment than the amount determined by Tax Counsel.

                  e.   If a Taxing Authority makes a claim against the Executive which, if successful, would require the Company to make a payment under this paragraph 9, the Executive agrees to contest the claim, with counsel reasonably satisfactory to the Company, on request of the Company, subject to the following conditions:

                           (1)   The Executive shall notify the Company of any such claim within ten (10) days of becoming aware thereof. In the event that the Company desires the claim to be contested, it shall promptly (but in no event more than thirty (30) days after the notice from the Executive or such shorter time as the Taxing Authority may

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specify for responding to such claim) request the Executive contest the claim. The Executive shall not make any payment of any tax which is subject of the claim before the Executive has given the notice or during the thirty (30) day period thereafter unless the Executive receives written instructions from the Company to make such payment together with an advance of funds sufficient to make the requested payment plus any amounts payable under this paragraph 9 determined as if such advance were an Excise Tax, in which case the Executive will act promptly in accordance with such instructions.

                           (2)   If the Company so requests, the Executive will contest the claim by either paying the tax claimed and suing for a refund in the appropriate court or contesting the claim in the United States Tax Court or other appropriate court, as directed by the Company; provided, however, that any request by the Company for the Executive to pay the tax shall be accompanied by an advance from the Company to the Executive of funds sufficient to make the requested payment plus any amounts payable under this paragraph 9 determined as if such advance were an Excise Tax. If directed by the Company in writing, the Executive will take all action necessary to compromise or settle the claim, but in no event will the Executive compromise or settle the claim or cease to contest the claim without the written consent of the Company; provided, however, that the Executive may take any such action if the Executive waives in writing his or her right to a payment under this paragraph 9 for any amounts payable in connection with such claim. The Executive agrees to cooperate in good faith with the Company in contesting the claim and to comply with any reasonable request from the Company concerning the contest of the claim, including the pursuit of administrative remedies, the appropriate forum for any judicial proceedings, and the legal basis for contesting the claim. Upon request of the Company, the Executive shall take appropriate appeals of any judgment or decision that would require the Company to make a payment under this paragraph 9. Provided that the Executive is in compliance with the provisions of this paragraph, the Company shall be liable for and indemnify the Executive against any loss in connection with, and all costs and expenses, including attorneys’ fees, which may be incurred as a result of, contesting the claim, and shall provide to the Executive, within ten (10) days after each written request therefor by the Executive, cash advances or reimbursement for all such costs and expenses actually incurred or reasonably expected to be incurred by the Executive as a result of contesting the claim.

                  f.   Should a Tax Authority finally determine that an additional Excise Tax is owed, then the Company shall pay an additional Make-Whole Amount to the Executive in a manner consistent with this paragraph 9 with respect to any additional Excise Tax and any assessed interest, fines, or penalties. If any Excise Tax as calculated by the Company or Tax Counsel, as the case may be, is finally determined by a Tax Authority to exceed the amount required to be paid under applicable law, then the Executive shall repay such excess to the Company within thirty (30) days of such determination; provided that such repayment shall be reduced by the amount of any taxes paid by the Executive on such excess which is not offset by the tax benefit attributable to the repayment.

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         10.      Outplacement Services. If the Executive’s Termination occurs during the Employment Period, the Company shall provide to the Executive, at the Executive’s election, outplacement services of an experienced firm, selected by the Company and acceptable to the Executive, located not more than thirty miles from the location of Executive’s office immediately prior to the Employment Period, provided that the cost of such services shall not exceed $30,000 and such services shall not extend beyond six (6) months from the date of Executive’s Termination.

         11.      Deductions and Withholding. All payments to the Executive under this Agreement will be subject to applicable deductions and withholding of state and federal taxes.

         12.      Confidentiality, Non-Solicitation and Non-Competition. The Executive agrees that:

                  a.   Except as may be required by the lawful order of a court or agency of competent jurisdiction, or except to the extent that the Executive has the express written authorization from the Company, the Executive agrees to keep secret and confidential for a period of two years following the termination of Executive’s employmentall non-public information concerning the Company or any entity in which the Company has a 25% or greater ownership interest (“Company-Related Entity”) which was acquired by or disclosed to Executive during the course of Executive’s employment with the Company or any Company-Related Entity controlled by the Company, and not to disclose the same, either directly or indirectly, to any other person, firm or business entity or to use it in any way.

                  b.   While the Executive is employed by the Company or Company-Related Entity and for a period of one year after the date of the Executive terminates employment for any reason, the Executive covenants and agrees that Executive will not, whether for Executive or for any other person, business, partnership, association, firm, company or corporation, initiate contact with, solicit, divert or take away any of the customers (entities or individuals from which the Company or any Company-Related Entity receives rents or payments for services) of the Company or any Company-Related Entity or employees of the Company or any Company-Related Entity in existence from time to time during Executive’s employment with the Company or any Company-Related Entity and at the time of such initiation, solicitation or diversion.

                  c.   While the Executive is employed by the Company or any Company- Related Entity, the Executive covenants and agrees that Executive will not, directly or indirectly, engage in, assist, perform services for, plan for, establish or open, or have any financial interest (other than (i) ownership of 1% or less of the outstanding stock of any corporation listed on the New York or American Stock Exchange or included in the National Association of Securities Dealers Automated Quotation System, or (ii) ownership of securities in any entity affiliated with the Company) in any person, firm, corporation, or business entity (whether as an employee, officer, director or

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consultant) that engages primarily in the refined petroleum product terminaling, pipeline transportation or logistical services business.

         13.      Dispute Resolution.

                  a.   Executive and Company agree that in the event of any controversy or claim arising out of this Agreement, they shall negotiate in good faith to resolve the controversy or claim privately, amicably and confidentially. Each party may consult with counsel in connection with such negotiations.

                  b.   In the event that such controversy or claim cannot be resolved through such good-faith negotiations, the disputing party may proceed to initiate litigation within thirty (30) days from the date of commencement of such negotiations. In such event, the Company agrees to pay as incurred, to the full extent permitted by law, all legal fees and expenses which the Executive may reasonably incur as a result of any contest (regardless of the outcome thereof, but not in the case of fees incurred with respect to a claim brought in bad faith by the Executive) initiated by the Company, the Executive or others regarding the validity or enforceability of, or liability under, any provision of this Agreement or any guarantee of performance thereof (including as a result of any contest by the Executive with respect to the amount of any payment pursuant to this Agreement), plus in each case, interest on any delayed payment at the applicable Federal rate provided for in Section 7872(f)(2)(A) of the Code.

         14.      Mitigation and Set-Off. The Executive shall not be required to mitigate the amount of any payment provided for in this Agreement by seeking other employment or otherwise. The Company shall not be entitled to set-off against the amounts payable to the Executive under this Agreement any amounts owed to the Company by the Executive, or any amounts earned, or which could have been earned, by the Executive after the date of Termination of Executive’s employment with the Company.

         15.      Miscellaneous Provisions.

                  a.   Notice. Except as otherwise specifically provided in this Agreement, any notices, requests, demands or other communications provided for by this Agreement shall be sufficient if in writing and if sent by telecopy or facsimile transmission or by hand delivery or registered, certified, or overnight mail to the Executive at the last address Executive has filed in writing with the Company or, in the case of the Company, to the attention of the Secretary of the Company, at its principal executive offices. Such notices and communications shall be deemed to have been received on the date of confirmation of receipt, in the case of telecopy or facsimile transmission, or upon the date of delivery thereof or the fifth (5th) business day after the mailing thereof, whichever is earlier, in the case of the remaining delivery methods.

                           Any Termination by the Company for Cause, or by the Executive for Good Reason, shall be communicated by “Notice of Termination” to the other party hereto given in accordance with the procedures above referenced. For the purposes of

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this Agreement, a “Notice of Termination” means a written notice which (i) indicates the specific Termination provision in this Agreement relied upon, (ii) to the extent applicable, sets forth in reasonable detail the facts and circumstances claimed to provide a basis for the Executive’s Termination under the provision so indicated, and (iii) if the date of Termination is other than the date of receipt of such Notice of Termination, specifies the date of Termination, which date shall not be more than thirty (30) days after the giving of such notice. The failure by the Executive or the Company to set forth in the Notice of Termination any fact or circumstance which contributes to a showing of Good Reason or Cause shall not waive any right of the Executive or the Company, as the case may be, hereunder or preclude the Executive or the Company, respectively, from asserting such fact or circumstance in enforcing the Executive’s or the Company’s rights hereunder.

                  b.   Binding Effect; Assignment. This Agreement shall inure to the benefit of, and shall be binding upon, the parties hereto and their respective successors, assigns, heirs, and legal representatives. This Agreement may not be assigned by Executive, nor may Executive assign or pledge any of his or her rights, including rights to payment, hereunder.

                  c.   Governing Law. The provisions of this Agreement shall be construed in accordance with the laws of the State of Colorado, without application of conflict of laws provisions thereunder.

                  d.   Successors to the Company. The Company shall require any successor, whether direct or indirect, by purchase, merger, consolidation or otherwise, and whether to all or substantially all of the business and/or assets of the Company, to assume and to expressly perform the obligations of this Agreement in the same manner and to the same extent that the Company would be required to perform it if no such succession had taken place. As used in this Agreement, “Company” shall mean the Company as hereinbefore defined and any successor to its business and/or assets as aforesaid which assumes and agrees to perform this Agreement by operation of law or otherwise. Such assumption shall be by an express agreement signed by both the successor Company and the Executive and shall be reasonably satisfactory to the Executive. If the Company fails to obtain such an express assumption, that shall be a breach of this Agreement and shall entitle the Executive to the same benefits and compensation as he or she would be entitled to if the Employment Period was terminated under paragraph 5.

                  e.   Employment Status. Nothing in this Agreement shall be deemed to create an employment agreement between the Company and the Executive providing for the employment of the Executive by the Company for any fixed period of time, other than as provided in paragraphs 1 and 2. The Executive’s employment is terminable at-will by the Company or the Executive, meaning that either party may terminate the employment relationship at any time, with or without cause, subject to the provisions of paragraphs 1, 2, and 5. Upon termination of the Executive’s employment prior to the

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date of a threatened Change in Control, there shall be no further rights under this Agreement.

                  f.   Entire Agreement. This Agreement contains the entire agreement between the parties hereto and supersedes all prior agreements and understandings, oral or written, between the parties hereto concerning its subject matter, with respect to the subject matter hereof.

                  g.   Amendments and Waivers. This Agreement may not be modified or amended except by an instrument or instruments in writing signed by the party against whom enforcement or any such modification or amendment is sought. Either party hereto may, by an instrument in writing, waive compliance by the other party with any term or provision of this Agreement on the part of such other party hereto to be performed or complied with. The waiver by any party hereto of a breach of any term or provision of this Agreement shall not be construed as a waiver of any subsequent breach.

                  h.   Construction. Headings in this Agreement are for convenience only and shall not control the meaning of this Agreement. Whenever applicable, masculine and neutral pronouns shall equally apply to the feminine genders; the singular shall include the plural and the plural shall include the singular. The parties have reviewed and understand this Agreement, and each has had a full opportunity to negotiate the Agreement’s terms and to consult with counsel of their own choosing. Therefore, the parties expressly waive all applicable common law and statutory rules of construction that any provision of this Agreement should be construed against the Agreement’s drafter, and agree that this Agreement and all amendments thereto shall be construed as a whole, according to the fair meaning of the language used.

                  i.   Severability. In the event that any provision or portion of this Agreement shall be determined to be invalid or unenforceable for any reason, the remaining provisions of this Agreement shall be unaffected thereby and shall remain in full force and effect.

                  j.   Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same agreement.

         IN WITNESS WHEREOF, the Executive has hereunto set his or her hand and, pursuant to the authorization from its Board of Directors, the Company has caused these presents to be executed in its name and on its behalf, all as of the day and year first above written.

TransMontaigne Inc. Donald H. Anderson

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/s/ CORTLANDT S. DIETLER	/s/ DONALD H. ANDERSON
Cortlandt S. Dietler, Chairman Date: April 16, 2001	Donald H. Anderson Date: April 16, 2001

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EX-10.2

Exhibit 10.2

CONFIDENTIAL

CHANGE IN CONTROL AGREEMENT

         This Agreement is between TransMontaigne Inc. (“Company”), and Erik B. Carlson (the “Executive”), and shall be effective as of April 12, 2001 (the “Effective Date”).

         WHEREAS the Board of Directors of the Company (the “Board”) has determined that it is in the best interests of the Company and its stockholders to assure that the Company will have the continued dedication of the Executive notwithstanding the possibility, threat or occurrence of a Change of Control (as defined in this Agreement) of the Company; and

         WHEREAS, the Board has further determined that in order to diminish the distraction of the Executive attributable to the uncertainties and risks created by a pending or threatened Change of Control and in order to encourage the Executive’s full attention and dedication to the Company both currently and in the event of any threatened or pending Change in Control, it is appropriate to provide the Executive with compensation and benefits upon the occurrence of a Change in Control which ensure that the compensation and benefits expectations of the Executive will be met and which are competitive with those of other corporations; and

         WHEREAS in order to accomplish these objectives, the Company and the Executive accordingly desire to enter into this Agreement on the terms and conditions set forth below;

         NOW, THEREFORE, in consideration of the promises and mutual covenants set forth herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:

         1.       Term of Agreement. The term of this Agreement (the “Term”) shall commence on the Effective Date and shall continue until the third anniversary thereof; provided, however, that on such anniversary date and on each subsequent anniversary of the Effective Date, the term of this Agreement shall automatically be extended for one additional year unless, not later than ninety (90) days prior to such anniversary date, either party shall have given notice that such party does not wish to extend the Term; and provided, further, that if an actual or threatened Change in Control (as defined in paragraph 3 below) shall have occurred during the original or any extended Term of this Agreement, then the Term of this Agreement shall continue for a period twenty-four (24) calendar months beyond the calendar month in which such actual or threatened Change in Control occurs.

         2.       Employment After Change in Control. If the Executive is in the employ of the Company on the date of an actual or threatened Change in Control, the Company shall continue Executive in its employ for the period commencing on the date of the

actual Change in Control and ending on the last day of the Term of this Agreement (the “Employment Period”). During the Employment Period, the Executive shall hold such position with the Company and exercise such authority and perform such duties as are substantially commensurate with the Executive’s position, authority and duties immediately prior to the threatened or actual Change in Control. The Executive agrees that, during the Employment Period, the Executive shall devote his full professional time and attention to the Executive’s duties and perform such duties faithfully and efficiently.

                  Notwithstanding anything in this Agreement to the contrary, if a Change in Control occurs and if the Executive’s employment with the Company is terminated prior to the date on which the Change in Control occurs, and if it is reasonably demonstrated by the Executive that such termination of employment (i) was at the request of a third party, who has taken steps reasonably calculated to effect a Change in Control or (ii) otherwise arose in connection with or anticipation of a Change in Control, then for all purposes of this Agreement, the “Employment Period” shall mean the date immediately prior to the date of such termination of employment.

         3.       Change in Control. For purposes of this Agreement, an actual “Change in Control” shall be deemed to have occurred if upon the occurrence of any of the following:

                  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

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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.

                  For the purposes of this Agreement, a “threatened Change in Control” means the determination by the Board, in the exercise of its reasonable business judgment, that a third person has taken steps to effect an actual Change in Control and that such actual Change of Control could occur within 90 days after such determination.

         4.       Compensation During the Employment Period. During the Employment Period, the Executive shall be compensated as follows:

                  a.   The Executive shall receive an annual salary which is not less than his or her annual salary immediately prior to the Employment Period and shall be eligible to receive an increase in annual salary which is not less favorable than increases in salary for the Company’s other executives with similar responsibilities and performance levels;

                  b.   the Executive shall be eligible to participate in short-term and long-term cash-based incentive compensation plans which, in the aggregate, provide bonus opportunities that are not less favorable to the Executive than the greater of (i) the opportunities provided to the Company’s other executives with similar responsibilities and performance levels; and, (ii) the opportunities provided to the Executive under all such plans in which the Executive was participating prior to the Employment Period;

                  c.   the Executive shall be eligible to participate in stock option, performance awards, restricted stock and other equity-based incentive compensation plans (the “Plans”) on a basis not less favorable to the Executive than the greater of the Plans available (i) to the Executive immediately prior to the Employment Period, or (ii) to other executives of the Company with similar responsibilities and performance levels; and,

                  d.   the Executive shall be eligible to receive employee benefits (including, but not limited to, tax-qualified and nonqualified savings plan benefits, medical insurance, disability income protection, life insurance coverage and death benefits) and perquisites which are not less favorable to the Executive than (i) the employee benefits and perquisites provided to the Company’s other executives, or (ii) the employee benefits and perquisites to which the Executive would be entitled under the Company’s employee benefit plans and perquisites as in effect immediately prior to the Employment Period.

         5.       Termination. For purposes of this Agreement, “Termination” shall mean termination of the employment of the Executive during the Employment Period (i) by the Company, for any reason other than death or Cause (as described below), or (ii) by resignation of the Executive for Good Reason. For the purposes of this Agreement, “Good Reason” shall include, but not be limited to, any of the following events:

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                  a.   the assignment to the Executive by the Company of duties inconsistent with, or a substantial alteration in the nature or status of, the Executive’s responsibilities immediately prior to a Change in Control.

                  b.   a reduction by the Company in the Executive’s compensation or benefits as in effect on the date of a Change in Control;

                  c.   a relocation of the Company’s principal offices to a location outside the Denver, Coloradometropolitan area, or the Executive’s relocation to any place other than the Denver, Coloradooffices of the Company, except for reasonably required travel by the Executive on the Company’s business.

                  d.   any material breach by the Company of any provision of this Agreement, if such material breach has not been cured within thirty (30) days following written notice of such breach by the Executive to the Company setting forth the nature of the breach; or

                  e.   any failure by the Company to obtain the assumption and performance of this Agreement by any successor (by merger, consolidation or otherwise) or assign by the Company in accordance with paragraph 15(d) of this Agreement.

                  The date of the Executive’s Termination under this paragraph 5 shall be the date specified by the Executive or the Company, as the case may be, in a written notice to the other party complying with the requirements of paragraph 15(a) below. For purposes of this Agreement, “Cause” shall mean

                           (1)   the Executive’s material breach of the terms of this Agreement, if such material breach has not been substantially cured within thirty (30) days following written notice to the Executive from the Company of such breach setting forth with specificity the nature of the violation or, if cure cannot reasonably be effected within such 30-day period, if the Executive does not commence such cure within such 30-day period and thereafter pursue such cure continuously and with due diligence until cure has been effected;

                           (2)   the Executive’s willful dishonesty towards, fraud upon, felony crime against, deliberate material injury or material bad faith action with respect to, or deliberate or attempted injury to the Company; or

                           (3)   the Officer’s conviction for any felony crime (whether in connection with the Company’s affairs or otherwise).

         6.       Severance Payments. Subject to the provisions of paragraph 9 below, in the event of a Termination described in paragraph 5 above:

                  a.   the Company shall pay the Executive’s unpaid salary, accrued vacation pay and unreimbursed business expenses through and including the date of Termination; and

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                  b.   in addition, following Executive’s execution of a legal release in a form satisfactory to Company in its sole discretion reasonably exercised and drafted so as to ensure a final, complete and enforceable release of all claims that Executive has or may have against Company relating to or arising in any way from Executive’s employment with Company and/or the termination thereof, and complete and continuing confidentiality of Company’s proprietary information and trade secrets, the circumstances of Executive’s separation from Company, and compensation received by Executive in connection with that separation, in lieu of the amount otherwise payable under paragraph 4 above, the Executive shall continue to receive, at the Company’s expense, medical insurance, disability income protection, life insurance coverage and death benefits, and perquisites in accordance with subparagraph 4(d) above for a period of 24 months after the date of Termination (under COBRA or through an individual conversion policy, as appropriate) or until Executive becomes eligible for comparable benefits under benefit plans sponsored by another employer, and shall also be entitled to a lump sum payment in cash no later than ten (10) business days after the date of Termination equal to the sum of:

                           (1)   an amount equal to 2 times the Executive’s annual salary rate plus 2 times target bonus award in effect immediately prior to the date of Termination.

                           (2)   an amount equal to the assigned target bonus for the Executive for the year of Termination prorated through the date of Termination.

         7.       Deferred Compensation Plans.

                  a.   For purposes of this paragraph, “deferred compensation plans” shall mean all nonqualified deferred compensation plans presently maintained by the Company or adopted in the future by the Company. If an actual or threatened Change in Control occurs during the original or any extended Term of this Agreement, the Company shall, within thirty (30) days after the earlier of the date of such threatened Change in Control or the date of such actual Change in Control, establish a “rabbi trust” and transfer to such “rabbi trust” an amount of cash sufficient to provide all benefits accrued by the Executive under all deferred compensation plans. Thereafter, the Company will, at least quarterly, transfer to the “rabbi trust” an amount of cash sufficient to provide any additional benefits accrued by the Executive under all deferred compensation plans.

                  b.   In the event of a Termination as set forth in paragraph 5 above: (a) all of the Executive’s benefits, including without limitation matching contributions, under all deferred compensation plans shall be 100% vested, regardless of the Executive’s years of service with the Company and regardless of any vesting provisions of such deferred compensation plans; (b) the Executive will be entitled to all benefits, including without limitation matching contributions, under all deferred compensation plans for the year in which such Termination occurs, regardless of any provision in any such deferred compensation plan making such benefits contingent upon employment for a particular portion of the year or as of a particular day in that year or making such

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benefits contingent upon accrual of a specific number of hours, days, weeks, or months of service during that year.

                  c.   The provisions of paragraph 7(b) apply only in the event of a “Termination” as defined in paragraph 5. Under paragraph 5, the term “Termination means terminations of employment of the Executive during the “Employment Period.” Under paragraph 2, the “Employment Period” commences on the date of an actual Change in Control. Therefore, the provisions of paragraph 7(b) do not apply in the case of a termination of employment of the Executive unless such termination of employment of the Executive occurs on or after the date of an actual Change in Control and unless such termination of employment of the Executive also meets the other requirements of the definition of the term “Termination” set forth in Paragraph 5.

         8.       Stock Based Awards. In the event of a Termination as set forth in paragraph 5 above, the restrictions on any outstanding stock-based awards (including, without limitation, nonqualified stock options, incentive stock options and restricted stock) granted to Executive under any incentive plan or arrangement shall lapse and such stock-based awards shall become 100% vested, and all stock options and stock appreciation rights granted to Executive shall become immediately exercisable. Notwithstanding anything to the contrary in the Executive’s stock option agreements with the Company, all such stock options shall be exercisable for a period of twelve (12) months after the date of Termination (but in no event beyond the expiration date applicable to such stock options)

         9.       Make-Whole Payments. If any payment or benefit to which the Executive is entitled, whether under this Agreement or otherwise, in connection with a Change in Control or the Executive’s termination of employment (a “Payment”) is subject to any tax under section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), or any similar federal or state law (an “Excise Tax”), the Company shall pay to the Executive an additional amount (the “Make Whole-Amount”) which is equal to (i) the amount of the Excise Tax, plus (ii) the aggregate amount of any interest, penalties, fines or additions to any tax that are imposed in connections with such Excise Tax, plus (iii) all income, excise and other applicable taxes imposed on the Executive under the laws of any Federal, state or local government or taxing authority by reason of the payments required under clause (i) and clause (ii) and this clause (iii). Notwithstanding any other provisions of this Agreement, however, such Make Whole-Amount will not be paid to the Executive if the Payment is less than ten (10) percent above the maximum amount that may be paid without incurring Excise Tax; and in such event, the cash severance payments provided in paragraph 6 above and/or the outplacement services provided in paragraph 10 below, at the Executive’s election, shall be reduced to a level that results in the total Payment being equal to the maximum amount that may be paid without incurring Excise Tax.

                  a.   For purposes of determining the Make-Whole Amount, the Executive shall be deemed to be taxed at the highest marginal rate under all applicable local, state, federal and foreign income tax laws for the year in which the Make-Whole Amount is paid. The Make-Whole

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Amount payable with respect to an Excise Tax shall be paid by the Company coincident with the Payment with respect to which such Excise Tax relates.

                  b.   All calculations under this paragraph 9 shall be made initially by the Company and the Company shall provide prompt written notice thereof to the Executive to enable the Executive to timely file all applicable tax returns. Upon request of the Executive, the Company shall provide the Executive with sufficient tax and compensation data to enable the Executive or his tax advisor to independently make the calculations described in subparagraph (a) above and the Company shall reimburse the Executive for reasonable fees and expenses incurred for any such verification.

                  c.   If the Executive gives written notice to the Company of any objection to the results of the Company’s calculations within sixty (60) days of the Executive’s receipt of written notice thereof, the dispute shall be referred for determination to tax counsel selected by the independent auditors of the Company (“Tax Counsel”). The Company shall pay all reasonable fees and expenses of such Tax Counsel. Pending such determination by Tax Counsel, the Company shall pay the Executive the Make-Whole Amount as determined by the Company in good faith. The Company shall pay the Executive any additional amount determined by Tax Counsel to be due under this paragraph 9 (together with interest thereon at a rate equal to 120% of the Federal short-term rate compounded dailydetermined under section 1274(d) of the Code) promptly after such determination.

                  d.   The determination by Tax Counsel shall be conclusive and binding upon all parties unless the Internal Revenue Service, a court of competent jurisdiction, or such other duly empowered governmental body or agency (a “Tax Authority”) determines that the Executive owes a greater or lesser amount of Excise Tax with respect to any Payment than the amount determined by Tax Counsel.

                  e.   If a Taxing Authority makes a claim against the Executive which, if successful, would require the Company to make a payment under this paragraph 9, the Executive agrees to contest the claim, with counsel reasonably satisfactory to the Company, on request of the Company, subject to the following conditions:

                           (1)   The Executive shall notify the Company of any such claim within ten (10) days of becoming aware thereof. In the event that the Company desires the claim to be contested, it shall promptly (but in no event more than thirty (30) days after the notice from the Executive or such shorter time as the Taxing Authority may specify for responding to such claim) request the Executive contest the claim. The Executive shall not make any payment of any tax which is subject of the claim before the Executive has given the notice or during the thirty (30) day period thereafter unless the Executive receives written instructions from the Company to make such payment together with an advance of funds sufficient to make the requested payment plus any amounts payable under this paragraph 9 determined as if such advance were an Excise Tax, in which case the Executive will act promptly in accordance with such instructions.

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                            (2)   If the Company so requests, the Executive will contest the claim by either paying the tax claimed and suing for a refund in the appropriate court or contesting the claim in the United States Tax Court or other appropriate court, as directed by the Company; provided, however, that any request by the Company for the Executive to pay the tax shall be accompanied by an advance from the Company to the Executive of funds sufficient to make the requested payment plus any amounts payable under this paragraph 9 determined as if such advance were an Excise Tax. If directed by the Company in writing, the Executive will take all action necessary to compromise or settle the claim, but in no event will the Executive compromise or settle the claim or cease to contest the claim without the written consent of the Company; provided, however, that the Executive may take any such action if the Executive waives in writing his or her right to a payment under this paragraph 9 for any amounts payable in connection with such claim. The Executive agrees to cooperate in good faith with the Company in contesting the claim and to comply with any reasonable request from the Company concerning the contest of the claim, including the pursuit of administrative remedies, the appropriate forum for any judicial proceedings, and the legal basis for contesting the claim. Upon request of the Company, the Executive shall take appropriate appeals of any judgment or decision that would require the Company to make a payment under this paragraph 9. Provided that the Executive is in compliance with the provisions of this paragraph, the Company shall be liable for and indemnify the Executive against any loss in connection with, and all costs and expenses, including attorneys’ fees, which may be incurred as a result of, contesting the claim, and shall provide to the Executive, within ten (10) days after each written request therefor by the Executive, cash advances or reimbursement for all such costs and expenses actually incurred or reasonably expected to be incurred by the Executive as a result of contesting the claim.

                  f.   Should a Tax Authority finally determine that an additional Excise Tax is owed, then the Company shall pay an additional Make-Whole Amount to the Executive in a manner consistent with this paragraph 9 with respect to any additional Excise Tax and any assessed interest, fines, or penalties. If any Excise Tax as calculated by the Company or Tax Counsel, as the case may be, is finally determined by a Tax Authority to exceed the amount required to be paid under applicable law, then the Executive shall repay such excess to the Company within thirty (30) days of such determination; provided that such repayment shall be reduced by the amount of any taxes paid by the Executive on such excess which is not offset by the tax benefit attributable to the repayment.

         10.      Outplacement Services. If the Executive’s Termination occurs during the Employment Period, the Company shall provide to the Executive, at the Executive’s election, outplacement services of an experienced firm, selected by the Company and acceptable to the Executive, located not more than thirty miles from the location of Executive’s office immediately prior to the Employment Period, provided that the cost of such services shall not exceed $30,000 and such services shall not extend beyond six (6) months from the date of Executive’s Termination.

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         11.      Deductions and Withholding. All payments to the Executive under this Agreement will be subject to applicable deductions and withholding of state and federal taxes.

         12.      Confidentiality, Non-Solicitation and Non-Competition. The Executive agrees that:

                  a.   Except as may be required by the lawful order of a court or agency of competent jurisdiction, or except to the extent that the Executive has the express written authorization from the Company, the Executive agrees to keep secret and confidential for a period of two years following the termination of Executive’s employmentall non-public information concerning the Company or any entity in which the Company has a 25% or greater ownership interest (“Company-Related Entity”) which was acquired by or disclosed to Executive during the course of Executive’s employment with the Company or any Company-Related Entity controlled by the Company, and not to disclose the same, either directly or indirectly, to any other person, firm or business entity or to use it in any way.

                  b.   While the Executive is employed by the Company or Company-Related Entity and for a period of one year after the date of the Executive terminates employment for any reason, the Executive covenants and agrees that Executive will not, whether for Executive or for any other person, business, partnership, association, firm, company or corporation, initiate contact with, solicit, divert or take away any of the customers (entities or individuals from which the Company or any Company-Related Entity receives rents or payments for services) of the Company or any Company-Related Entity or employees of the Company or any Company-Related Entity in existence from time to time during Executive’s employment with the Company or any Company-Related Entity and at the time of such initiation, solicitation or diversion.

                  c.   While the Executive is employed by the Company or any Company- Related Entity, the Executive covenants and agrees that Executive will not, directly or indirectly, engage in, assist, perform services for, plan for, establish or open, or have any financial interest (other than (i) ownership of 1% or less of the outstanding stock of any corporation listed on the New York or American Stock Exchange or included in the National Association of Securities Dealers Automated Quotation System, or (ii) ownership of securities in any entity affiliated with the Company) in any person, firm, corporation, or business entity (whether as an employee, officer, director or consultant) that engages primarily in the refined petroleum product terminaling, pipeline transportation or logistical services business.

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         13.      Dispute Resolution.

                  a.   Executive and Company agree that in the event of any controversy or claim arising out of this Agreement, they shall negotiate in good faith to resolve the controversy or claim privately, amicably and confidentially. Each party may consult with counsel in connection with such negotiations.

                  b.   In the event that such controversy or claim cannot be resolved through such good-faith negotiations, the disputing party may proceed to initiate litigation within thirty (30) days from the date of commencement of such negotiations. In such event, the Company agrees to pay as incurred, to the full extent permitted by law, all legal fees and expenses which the Executive may reasonably incur as a result of any contest (regardless of the outcome thereof, but not in the case of fees incurred with respect to a claim brought in bad faith by the Executive) initiated by the Company, the Executive or others regarding the validity or enforceability of, or liability under, any provision of this Agreement or any guarantee of performance thereof (including as a result of any contest by the Executive with respect to the amount of any payment pursuant to this Agreement), plus in each case, interest on any delayed payment at the applicable Federal rate provided for in Section 7872(f)(2)(A) of the Code.

         14.      Mitigation and Set-Off. The Executive shall not be required to mitigate the amount of any payment provided for in this Agreement by seeking other employment or otherwise. The Company shall not be entitled to set-off against the amounts payable to the Executive under this Agreement any amounts owed to the Company by the Executive, or any amounts earned, or which could have been earned, by the Executive after the date of Termination of Executive’s employment with the Company.

         15.      Miscellaneous Provisions.

                  a.   Notice. Except as otherwise specifically provided in this Agreement, any notices, requests, demands or other communications provided for by this Agreement shall be sufficient if in writing and if sent by telecopy or facsimile transmission or by hand delivery or registered, certified, or overnight mail to the Executive at the last address Executive has filed in writing with the Company or, in the case of the Company, to the attention of the Secretary of the Company, at its principal executive offices. Such notices and communications shall be deemed to have been received on the date of confirmation of receipt, in the case of telecopy or facsimile transmission, or upon the date of delivery thereof or the fifth (5th) business day after the mailing thereof, whichever is earlier, in the case of the remaining delivery methods.

                           Any Termination by the Company for Cause, or by the Executive for Good Reason, shall be communicated by “Notice of Termination” to the other party hereto given in accordance with the procedures above referenced. For the purposes of this Agreement, a “Notice of Termination” means a written notice which (i) indicates the specific Termination provision in this Agreement relied upon, (ii) to the extent applicable, sets forth in reasonable detail the facts and circumstances claimed to provide

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a basis for the Executive’s Termination under the provision so indicated, and (iii) if the date of Termination is other than the date of receipt of such Notice of Termination, specifies the date of Termination, which date shall not be more than thirty (30) days after the giving of such notice. The failure by the Executive or the Company to set forth in the Notice of Termination any fact or circumstance which contributes to a showing of Good Reason or Cause shall not waive any right of the Executive or the Company, as the case may be, hereunder or preclude the Executive or the Company, respectively, from asserting such fact or circumstance in enforcing the Executive’s or the Company’s rights hereunder.

                  b.   Binding Effect; Assignment. This Agreement shall inure to the benefit of, and shall be binding upon, the parties hereto and their respective successors, assigns, heirs, and legal representatives. This Agreement may not be assigned by Executive, nor may Executive assign or pledge any of his or her rights, including rights to payment, hereunder.

                  c.   Governing Law. The provisions of this Agreement shall be construed in accordance with the laws of the State of Colorado, without application of conflict of laws provisions thereunder.

                  d.   Successors to the Company. The Company shall require any successor, whether direct or indirect, by purchase, merger, consolidation or otherwise, and whether to all or substantially all of the business and/or assets of the Company, to assume and to expressly perform the obligations of this Agreement in the same manner and to the same extent that the Company would be required to perform it if no such succession had taken place. As used in this Agreement, “Company” shall mean the Company as hereinbefore defined and any successor to its business and/or assets as aforesaid which assumes and agrees to perform this Agreement by operation of law or otherwise. Such assumption shall be by an express agreement signed by both the successor Company and the Executive and shall be reasonably satisfactory to the Executive. If the Company fails to obtain such an express assumption, that shall be a breach of this Agreement and shall entitle the Executive to the same benefits and compensation as he or she would be entitled to if the Employment Period was terminated under paragraph 5.

                  e.   Employment Status. Nothing in this Agreement shall be deemed to create an employment agreement between the Company and the Executive providing for the employment of the Executive by the Company for any fixed period of time, other than as provided in paragraphs 1 and 2. The Executive’s employment is terminable at-will by the Company or the Executive, meaning that either party may terminate the employment relationship at any time, with or without cause, subject to the provisions of paragraphs 1, 2, and 5. Upon termination of the Executive’s employment prior to the date of a threatened Change in Control, there shall be no further rights under this Agreement.

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                  f.   Entire Agreement. This Agreement contains the entire agreement between the parties hereto and supersedes all prior agreements and understandings, oral or written, between the parties hereto concerning its subject matter, with respect to the subject matter hereof.

                  g.   Amendments and Waivers. This Agreement may not be modified or amended except by an instrument or instruments in writing signed by the party against whom enforcement or any such modification or amendment is sought. Either party hereto may, by an instrument in writing, waive compliance by the other party with any term or provision of this Agreement on the part of such other party hereto to be performed or complied with. The waiver by any party hereto of a breach of any term or provision of this Agreement shall not be construed as a waiver of any subsequent breach.

                  h.   Construction. Headings in this Agreement are for convenience only and shall not control the meaning of this Agreement. Whenever applicable, masculine and neutral pronouns shall equally apply to the feminine genders; the singular shall include the plural and the plural shall include the singular. The parties have reviewed and understand this Agreement, and each has had a full opportunity to negotiate the Agreement’s terms and to consult with counsel of their own choosing. Therefore, the parties expressly waive all applicable common law and statutory rules of construction that any provision of this Agreement should be construed against the Agreement’s drafter, and agree that this Agreement and all amendments thereto shall be construed as a whole, according to the fair meaning of the language used.

                  i.   Severability. In the event that any provision or portion of this Agreement shall be determined to be invalid or unenforceable for any reason, the remaining provisions of this Agreement shall be unaffected thereby and shall remain in full force and effect.

                  j.   Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same agreement.

         IN WITNESS WHEREOF, the Executive has hereunto set his or her hand and, pursuant to the authorization from its Board of Directors, the Company has caused these presents to be executed in its name and on its behalf, all as of the day and year first above written.

TransMontaigne Inc.	Erik B. Carlson
/s/ DONALD H. ANDERSON	/s/ ERIK B. CARLSON
Donald H. Anderson, President Date: April 12, 2001	Date: April 16, 2001

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EX-10.3

Exhibit 10.3

CONFIDENTIAL

CHANGE IN CONTROL AGREEMENT

         This Agreement is between TransMontaigne Inc. (“Company”), and Larry F. Clynch (the “Executive”), and shall be effective as of April 12, 2001 (the “Effective Date”).

         WHEREAS the Board of Directors of the Company (the “Board”) has determined that it is in the best interests of the Company and its stockholders to assure that the Company will have the continued dedication of the Executive notwithstanding the possibility, threat or occurrence of a Change of Control (as defined in this Agreement) of the Company; and

         WHEREAS, the Board has further determined that in order to diminish the distraction of the Executive attributable to the uncertainties and risks created by a pending or threatened Change of Control and in order to encourage the Executive’s full attention and dedication to the Company both currently and in the event of any threatened or pending Change in Control, it is appropriate to provide the Executive with compensation and benefits upon the occurrence of a Change in Control which ensure that the compensation and benefits expectations of the Executive will be met and which are competitive with those of other corporations; and

         WHEREAS in order to accomplish these objectives, the Company and the Executive accordingly desire to enter into this Agreement on the terms and conditions set forth below;

         NOW, THEREFORE, in consideration of the promises and mutual covenants set forth herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:

         1.       Term of Agreement. The term of this Agreement (the “Term”) shall commence on the Effective Date and shall continue until the third anniversary thereof; provided, however, that on such anniversary date and on each subsequent anniversary of the Effective Date, the term of this Agreement shall automatically be extended for one additional year unless, not later than ninety (90) days prior to such anniversary date, either party shall have given notice that such party does not wish to extend the Term; and provided, further, that if an actual or threatened Change in Control (as defined in paragraph 3 below) shall have occurred during the original or any extended Term of this Agreement, then the Term of this Agreement shall continue for a period twenty-four (24) calendar months beyond the calendar month in which such actual or threatened Change in Control occurs.

         2.       Employment After Change in Control. If the Executive is in the employ of the Company on the date of an actual or threatened Change in Control, the Company shall continue Executive in its employ for the period commencing on the date of the

actual Change in Control and ending on the last day of the Term of this Agreement (the “Employment Period”). During the Employment Period, the Executive shall hold such position with the Company and exercise such authority and perform such duties as are substantially commensurate with the Executive’s position, authority and duties immediately prior to the threatened or actual Change in Control. The Executive agrees that, during the Employment Period, the Executive shall devote his full professional time and attention to the Executive’s duties and perform such duties faithfully and efficiently.

                  Notwithstanding anything in this Agreement to the contrary, if a Change in Control occurs and if the Executive’s employment with the Company is terminated prior to the date on which the Change in Control occurs, and if it is reasonably demonstrated by the Executive that such termination of employment (i) was at the request of a third party, who has taken steps reasonably calculated to effect a Change in Control or (ii) otherwise arose in connection with or anticipation of a Change in Control, then for all purposes of this Agreement, the “Employment Period” shall mean the date immediately prior to the date of such termination of employment.

         3.       Change in Control.For purposes of this Agreement, an actual “Change in Control” shall be deemed to have occurred if upon the occurrence of any of the following:

                  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

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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.

                  For the purposes of this Agreement, a “threatened Change in Control” means the determination by the Board, in the exercise of its reasonable business judgment, that a third person has taken steps to effect an actual Change in Control and that such actual Change of Control could occur within 90 days after such determination.

         4.       Compensation During the Employment Period. During the Employment Period, the Executive shall be compensated as follows:

                  a.   The Executive shall receive an annual salary which is not less than his or her annual salary immediately prior to the Employment Period and shall be eligible to receive an increase in annual salary which is not less favorable than increases in salary for the Company’s other executives with similar responsibilities and performance levels;

                  b.   the Executive shall be eligible to participate in short-term and long-term cash-based incentive compensation plans which, in the aggregate, provide bonus opportunities that are not less favorable to the Executive than the greater of (i) the opportunities provided to the Company’s other executives with similar responsibilities and performance levels; and, (ii) the opportunities provided to the Executive under all such plans in which the Executive was participating prior to the Employment Period;

                  c.   the Executive shall be eligible to participate in stock option, performance awards, restricted stock and other equity-based incentive compensation plans (the “Plans”) on a basis not less favorable to the Executive than the greater of the Plans available (i) to the Executive immediately prior to the Employment Period, or (ii) to other executives of the Company with similar responsibilities and performance levels; and,

                  d.   the Executive shall be eligible to receive employee benefits (including, but not limited to, tax-qualified and nonqualified savings plan benefits, medical insurance, disability income protection, life insurance coverage and death benefits) and perquisites which are not less favorable to the Executive than (i) the employee benefits and perquisites provided to the Company’s other executives, or (ii) the employee benefits and perquisites to which the Executive would be entitled under the Company’s employee benefit plans and perquisites as in effect immediately prior to the Employment Period.

         5.       Termination. For purposes of this Agreement, “Termination” shall mean termination of the employment of the Executive during the Employment Period (i) by the Company, for any reason other than death or Cause (as described below), or (ii) by resignation of the Executive for Good Reason. For the purposes of this Agreement, “Good Reason” shall include, but not be limited to, any of the following events:

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                  a.   the assignment to the Executive by the Company of duties inconsistent with, or a substantial alteration in the nature or status of, the Executive’s responsibilities immediately prior to a Change in Control.

                  b.   a reduction by the Company in the Executive’s compensation or benefits as in effect on the date of a Change in Control;

                  c.   a relocation of the Company’s principal offices to a location outside the Denver, Colorado metropolitan area, or the Executive’s relocation to any place other than the Denver, Colorado offices of the Company, except for reasonably required travel by the Executive on the Company’s business.

                  d.   any material breach by the Company of any provision of this Agreement, if such material breach has not been cured within thirty (30) days following written notice of such breach by the Executive to the Company setting forth the nature of the breach; or

                  e.   any failure by the Company to obtain the assumption and performance of this Agreement by any successor (by merger, consolidation or otherwise) or assign by the Company in accordance with paragraph 15(d) of this Agreement.

                  The date of the Executive’s Termination under this paragraph 5 shall be the date specified by the Executive or the Company, as the case may be, in a written notice to the other party complying with the requirements of paragraph 15(a) below. For purposes of this Agreement, “Cause” shall mean

                           (1)   the Executive’s material breach of the terms of this Agreement, if such material breach has not been substantially cured within thirty (30) days following written notice to the Executive from the Company of such breach setting forth with specificity the nature of the violation or, if cure cannot reasonably be effected within such 30-day period, if the Executive does not commence such cure within such 30-day period and thereafter pursue such cure continuously and with due diligence until cure has been effected;

                           (2)   the Executive’s willful dishonesty towards, fraud upon, felony crime against, deliberate material injury or material bad faith action with respect to, or deliberate or attempted injury to the Company; or

                           (3)   the Officer’s conviction for any felony crime (whether in connection with the Company’s affairs or otherwise).

         6.       Severance Payments. Subject to the provisions of paragraph 9 below, in the event of a Termination described in paragraph 5 above:

                  a.   the Company shall pay the Executive’s unpaid salary, accrued vacation pay and unreimbursed business expenses through and including the date of Termination; and

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                  b.   in addition, following Executive’s execution of a legal release in a form satisfactory to Company in its sole discretion reasonably exercised and drafted so as to ensure a final, complete and enforceable release of all claims that Executive has or may have against Company relating to or arising in any way from Executive’s employment with Company and/or the termination thereof, and complete and continuing confidentiality of Company’s proprietary information and trade secrets, the circumstances of Executive’s separation from Company, and compensation received by Executive in connection with that separation, in lieu of the amount otherwise payable under paragraph 4 above, the Executive shall continue to receive, at the Company’s expense, medical insurance, disability income protection, life insurance coverage and death benefits, and perquisites in accordance with subparagraph 4(d) above for a period of 12 months after the date of Termination (under COBRA or through an individual conversion policy, as appropriate) or until Executive becomes eligible for comparable benefits under benefit plans sponsored by another employer, and shall also be entitled to a lump sum payment in cash no later than ten (10) business days after the date of Termination equal to the sum of:

                           (1)   an amount equal to 1 times the Executive’s annual salary rate plus 1 times target bonus award in effect immediately prior to the date of Termination.

                           (2)   an amount equal to the assigned target bonus for the Executive for the year of Termination prorated through the date of Termination.

         7.       Deferred Compensation Plans.

                  a.   For purposes of this paragraph, “deferred compensation plans” shall mean all nonqualified deferred compensation plans presently maintained by the Company or adopted in the future by the Company. If an actual or threatened Change in Control occurs during the original or any extended Term of this Agreement, the Company shall, within thirty (30) days after the earlier of the date of such threatened Change in Control or the date of such actual Change in Control, establish a “rabbi trust” and transfer to such “rabbi trust” an amount of cash sufficient to provide all benefits accrued by the Executive under all deferred compensation plans. Thereafter, the Company will, at least quarterly, transfer to the “rabbi trust” an amount of cash sufficient to provide any additional benefits accrued by the Executive under all deferred compensation plans.

                  b.   In the event of a Termination as set forth in paragraph 5 above: (a) all of the Executive’s benefits, including without limitation matching contributions, under all deferred compensation plans shall be 100% vested, regardless of the Executive’s years of service with the Company and regardless of any vesting provisions of such deferred compensation plans; (b) the Executive will be entitled to all benefits, including without limitation matching contributions, under all deferred compensation plans for the year in which such Termination occurs, regardless of any provision in any such deferred compensation plan making such benefits contingent upon employment for a particular portion of the year or as of a particular day in that year or making such

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benefits contingent upon accrual of a specific number of hours, days, weeks, or months of service during that year.

                  c.   The provisions of paragraph 7(b) apply only in the event of a “Termination” as defined in paragraph 5. Under paragraph 5, the term “Termination means terminations of employment of the Executive during the “Employment Period.” Under paragraph 2, the “Employment Period” commences on the date of an actual Change in Control. Therefore, the provisions of paragraph 7(b) do not apply in the case of a termination of employment of the Executive unless such termination of employment of the Executive occurs on or after the date of an actual Change in Control and unless such termination of employment of the Executive also meets the other requirements of the definition of the term “Termination” set forth in Paragraph 5.

         8.       Stock Based Awards. In the event of a Termination as set forth in paragraph 5 above, the restrictions on any outstanding stock-based awards (including, without limitation, nonqualified stock options, incentive stock options and restricted stock) granted to Executive under any incentive plan or arrangement shall lapse and such stock-based awards shall become 100% vested, and all stock options and stock appreciation rights granted to Executive shall become immediately exercisable. Notwithstanding anything to the contrary in the Executive’s stock option agreements with the Company, all such stock options shall be exercisable for a period of twelve (12) months after the date of Termination (but in no event beyond the expiration date applicable to such stock options)

         9.       Make-Whole Payments. If any payment or benefit to which the Executive is entitled, whether under this Agreement or otherwise, in connection with a Change in Control or the Executive’s termination of employment (a “Payment”) is subject to any tax under section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), or any similar federal or state law (an “Excise Tax”), the Company shall pay to the Executive an additional amount (the “Make Whole-Amount”) which is equal to (i) the amount of the Excise Tax, plus (ii) the aggregate amount of any interest, penalties, fines or additions to any tax that are imposed in connections with such Excise Tax, plus (iii) all income, excise and other applicable taxes imposed on the Executive under the laws of any Federal, state or local government or taxing authority by reason of the payments required under clause (i) and clause (ii) and this clause (iii). Notwithstanding any other provisions of this Agreement, however, such Make Whole-Amount will not be paid to the Executive if the Payment is less than ten (10) percent above the maximum amount that may be paid without incurring Excise Tax; and in such event, the cash severance payments provided in paragraph 6 above and/or the outplacement services provided in paragraph 10 below, at the Executive’s election, shall be reduced to a level that results in the total Payment being equal to the maximum amount that may be paid without incurring Excise Tax.

                  a.   For purposes of determining the Make-Whole Amount, the Executive shall be deemed to be taxed at the highest marginal rate under all applicable local, state, federal and foreign income tax laws for the year in which the Make-Whole

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Amount is paid. The Make-Whole Amount payable with respect to an Excise Tax shall be paid by the Company coincident with the Payment with respect to which such Excise Tax relates.

                  b.   All calculations under this paragraph 9 shall be made initially by the Company and the Company shall provide prompt written notice thereof to the Executive to enable the Executive to timely file all applicable tax returns. Upon request of the Executive, the Company shall provide the Executive with sufficient tax and compensation data to enable the Executive or his tax advisor to independently make the calculations described in subparagraph (a) above and the Company shall reimburse the Executive for reasonable fees and expenses incurred for any such verification.

                  c.   If the Executive gives written notice to the Company of any objection to the results of the Company’s calculations within sixty (60) days of the Executive’s receipt of written notice thereof, the dispute shall be referred for determination to tax counsel selected by the independent auditors of the Company (“Tax Counsel”). The Company shall pay all reasonable fees and expenses of such Tax Counsel. Pending such determination by Tax Counsel, the Company shall pay the Executive the Make-Whole Amount as determined by the Company in good faith. The Company shall pay the Executive any additional amount determined by Tax Counsel to be due under this paragraph 9 (together with interest thereon at a rate equal to 120% of the Federal short-term rate compounded dailydetermined under section 1274(d) of the Code) promptly after such determination.

                  d.   The determination by Tax Counsel shall be conclusive and binding upon all parties unless the Internal Revenue Service, a court of competent jurisdiction, or such other duly empowered governmental body or agency (a “Tax Authority”) determines that the Executive owes a greater or lesser amount of Excise Tax with respect to any Payment than the amount determined by Tax Counsel.

                  e.   If a Taxing Authority makes a claim against the Executive which, if successful, would require the Company to make a payment under this paragraph 9, the Executive agrees to contest the claim, with counsel reasonably satisfactory to the Company, on request of the Company, subject to the following conditions:

                           (1)   The Executive shall notify the Company of any such claim within ten (10) days of becoming aware thereof. In the event that the Company desires the claim to be contested, it shall promptly (but in no event more than thirty (30) days after the notice from the Executive or such shorter time as the Taxing Authority may specify for responding to such claim) request the Executive contest the claim. The Executive shall not make any payment of any tax which is subject of the claim before the Executive has given the notice or during the thirty (30) day period thereafter unless the Executive receives written instructions from the Company to make such payment together with an advance of funds sufficient to make the requested payment plus any amounts payable under this paragraph 9 determined as if such advance were an Excise Tax, in which case the Executive will act promptly in accordance with such instructions.

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                            (2)   If the Company so requests, the Executive will contest the claim by either paying the tax claimed and suing for a refund in the appropriate court or contesting the claim in the United States Tax Court or other appropriate court, as directed by the Company; provided, however, that any request by the Company for the Executive to pay the tax shall be accompanied by an advance from the Company to the Executive of funds sufficient to make the requested payment plus any amounts payable under this paragraph 9 determined as if such advance were an Excise Tax. If directed by the Company in writing, the Executive will take all action necessary to compromise or settle the claim, but in no event will the Executive compromise or settle the claim or cease to contest the claim without the written consent of the Company; provided, however, that the Executive may take any such action if the Executive waives in writing his or her right to a payment under this paragraph 9 for any amounts payable in connection with such claim. The Executive agrees to cooperate in good faith with the Company in contesting the claim and to comply with any reasonable request from the Company concerning the contest of the claim, including the pursuit of administrative remedies, the appropriate forum for any judicial proceedings, and the legal basis for contesting the claim. Upon request of the Company, the Executive shall take appropriate appeals of any judgment or decision that would require the Company to make a payment under this paragraph 9. Provided that the Executive is in compliance with the provisions of this paragraph, the Company shall be liable for and indemnify the Executive against any loss in connection with, and all costs and expenses, including attorneys’ fees, which may be incurred as a result of, contesting the claim, and shall provide to the Executive, within ten (10) days after each written request therefor by the Executive, cash advances or reimbursement for all such costs and expenses actually incurred or reasonably expected to be incurred by the Executive as a result of contesting the claim.

                  f.   Should a Tax Authority finally determine that an additional Excise Tax is owed, then the Company shall pay an additional Make-Whole Amount to the Executive in a manner consistent with this paragraph 9 with respect to any additional Excise Tax and any assessed interest, fines, or penalties. If any Excise Tax as calculated by the Company or Tax Counsel, as the case may be, is finally determined by a Tax Authority to exceed the amount required to be paid under applicable law, then the Executive shall repay such excess to the Company within thirty (30) days of such determination; provided that such repayment shall be reduced by the amount of any taxes paid by the Executive on such excess which is not offset by the tax benefit attributable to the repayment.

         10.      Outplacement Services. If the Executive’s Termination occurs during the Employment Period, the Company shall provide to the Executive, at the Executive’s election, outplacement services of an experienced firm, selected by the Company and acceptable to the Executive, located not more than thirty miles from the location of Executive’s office immediately prior to the Employment Period, provided that the cost of such services shall not exceed $30,000 and such services shall not extend beyond six (6) months from the date of Executive’s Termination.

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         11.      Deductions and Withholding. All payments to the Executive under this Agreement will be subject to applicable deductions and withholding of state and federal taxes.

         12.      Confidentiality, Non-Solicitation and Non-Competition. The Executive agrees that:

                  a.   Except as may be required by the lawful order of a court or agency of competent jurisdiction, or except to the extent that the Executive has the express written authorization from the Company, the Executive agrees to keep secret and confidential for a period of two years following the termination of Executive’s employmentall non-public information concerning the Company or any entity in which the Company has a 25% or greater ownership interest (“Company-Related Entity”) which was acquired by or disclosed to Executive during the course of Executive’s employment with the Company or any Company-Related Entity controlled by the Company, and not to disclose the same, either directly or indirectly, to any other person, firm or business entity or to use it in any way.

                  b.   While the Executive is employed by the Company or Company-Related Entity and for a period of one year after the date of the Executive terminates employment for any reason, the Executive covenants and agrees that Executive will not, whether for Executive or for any other person, business, partnership, association, firm, company or corporation, initiate contact with, solicit, divert or take away any of the customers (entities or individuals from which the Company or any Company-Related Entity receives rents or payments for services) of the Company or any Company-Related Entity or employees of the Company or any Company-Related Entity in existence from time to time during Executive’s employment with the Company or any Company-Related Entity and at the time of such initiation, solicitation or diversion.

                  c.   While the Executive is employed by the Company or any Company- Related Entity, the Executive covenants and agrees that Executive will not, directly or indirectly, engage in, assist, perform services for, plan for, establish or open, or have any financial interest (other than (i) ownership of 1% or less of the outstanding stock of any corporation listed on the New York or American Stock Exchange or included in the National Association of Securities Dealers Automated Quotation System, or (ii) ownership of securities in any entity affiliated with the Company) in any person, firm, corporation, or business entity (whether as an employee, officer, director or consultant) that engages primarily in the refined petroleum product terminaling, pipeline transportation or logistical services business.

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         13.      Dispute Resolution.

                  a.   Executive and Company agree that in the event of any controversy or claim arising out of this Agreement, they shall negotiate in good faith to resolve the controversy or claim privately, amicably and confidentially. Each party may consult with counsel in connection with such negotiations.

                  b.   In the event that such controversy or claim cannot be resolved through such good-faith negotiations, the disputing party may proceed to initiate litigation within thirty (30) days from the date of commencement of such negotiations. In such event, the Company agrees to pay as incurred, to the full extent permitted by law, all legal fees and expenses which the Executive may reasonably incur as a result of any contest (regardless of the outcome thereof, but not in the case of fees incurred with respect to a claim brought in bad faith by the Executive) initiated by the Company, the Executive or others regarding the validity or enforceability of, or liability under, any provision of this Agreement or any guarantee of performance thereof (including as a result of any contest by the Executive with respect to the amount of any payment pursuant to this Agreement), plus in each case, interest on any delayed payment at the applicable Federal rate provided for in Section 7872(f)(2)(A) of the Code.

         14.      Mitigation and Set-Off. The Executive shall not be required to mitigate the amount of any payment provided for in this Agreement by seeking other employment or otherwise. The Company shall not be entitled to set-off against the amounts payable to the Executive under this Agreement any amounts owed to the Company by the Executive, or any amounts earned, or which could have been earned, by the Executive after the date of Termination of Executive’s employment with the Company.

         15.      Miscellaneous Provisions.

                  a.   Notice. Except as otherwise specifically provided in this Agreement, any notices, requests, demands or other communications provided for by this Agreement shall be sufficient if in writing and if sent by telecopy or facsimile transmission or by hand delivery or registered, certified, or overnight mail to the Executive at the last address Executive has filed in writing with the Company or, in the case of the Company, to the attention of the Secretary of the Company, at its principal executive offices. Such notices and communications shall be deemed to have been received on the date of confirmation of receipt, in the case of telecopy or facsimile transmission, or upon the date of delivery thereof or the fifth (5th) business day after the mailing thereof, whichever is earlier, in the case of the remaining delivery methods.

                           Any Termination by the Company for Cause, or by the Executive for Good Reason, shall be communicated by “Notice of Termination” to the other party hereto given in accordance with the procedures above referenced. For the purposes of this Agreement, a “Notice of Termination” means a written notice which (i) indicates the specific Termination provision in this Agreement relied upon, (ii) to the extent applicable, sets forth in reasonable detail the facts and circumstances claimed to provide

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a basis for the Executive’s Termination under the provision so indicated, and (iii) if the date of Termination is other than the date of receipt of such Notice of Termination, specifies the date of Termination, which date shall not be more than thirty (30) days after the giving of such notice. The failure by the Executive or the Company to set forth in the Notice of Termination any fact or circumstance which contributes to a showing of Good Reason or Cause shall not waive any right of the Executive or the Company, as the case may be, hereunder or preclude the Executive or the Company, respectively, from asserting such fact or circumstance in enforcing the Executive’s or the Company’s rights hereunder.

                  b.   Binding Effect; Assignment. This Agreement shall inure to the benefit of, and shall be binding upon, the parties hereto and their respective successors, assigns, heirs, and legal representatives. This Agreement may not be assigned by Executive, nor may Executive assign or pledge any of his or her rights, including rights to payment, hereunder.

                  c.   Governing Law. The provisions of this Agreement shall be construed in accordance with the laws of the State of Colorado, without application of conflict of laws provisions thereunder.

                  d.   Successors to the Company. The Company shall require any successor, whether direct or indirect, by purchase, merger, consolidation or otherwise, and whether to all or substantially all of the business and/or assets of the Company, to assume and to expressly perform the obligations of this Agreement in the same manner and to the same extent that the Company would be required to perform it if no such succession had taken place. As used in this Agreement, “Company” shall mean the Company as hereinbefore defined and any successor to its business and/or assets as aforesaid which assumes and agrees to perform this Agreement by operation of law or otherwise. Such assumption shall be by an express agreement signed by both the successor Company and the Executive and shall be reasonably satisfactory to the Executive. If the Company fails to obtain such an express assumption, that shall be a breach of this Agreement and shall entitle the Executive to the same benefits and compensation as he or she would be entitled to if the Employment Period was terminated under paragraph 5.

                  e.   Employment Status. Nothing in this Agreement shall be deemed to create an employment agreement between the Company and the Executive providing for the employment of the Executive by the Company for any fixed period of time, other than as provided in paragraphs 1 and 2. The Executive’s employment is terminable at-will by the Company or the Executive, meaning that either party may terminate the employment relationship at any time, with or without cause, subject to the provisions of paragraphs 1, 2, and 5. Upon termination of the Executive’s employment prior to the date of a threatened Change in Control, there shall be no further rights under this Agreement.

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                  f.   Entire Agreement. This Agreement contains the entire agreement between the parties hereto and supersedes all prior agreements and understandings, oral or written, between the parties hereto concerning its subject matter, with respect to the subject matter hereof.

                  g.   Amendments and Waivers. This Agreement may not be modified or amended except by an instrument or instruments in writing signed by the party against whom enforcement or any such modification or amendment is sought. Either party hereto may, by an instrument in writing, waive compliance by the other party with any term or provision of this Agreement on the part of such other party hereto to be performed or complied with. The waiver by any party hereto of a breach of any term or provision of this Agreement shall not be construed as a waiver of any subsequent breach.

                  h.   Construction. Headings in this Agreement are for convenience only and shall not control the meaning of this Agreement. Whenever applicable, masculine and neutral pronouns shall equally apply to the feminine genders; the singular shall include the plural and the plural shall include the singular. The parties have reviewed and understand this Agreement, and each has had a full opportunity to negotiate the Agreement’s terms and to consult with counsel of their own choosing. Therefore, the parties expressly waive all applicable common law and statutory rules of construction that any provision of this Agreement should be construed against the Agreement’s drafter, and agree that this Agreement and all amendments thereto shall be construed as a whole, according to the fair meaning of the language used.

                  i.   Severability. In the event that any provision or portion of this Agreement shall be determined to be invalid or unenforceable for any reason, the remaining provisions of this Agreement shall be unaffected thereby and shall remain in full force and effect.

                  j.   Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same agreement.

         IN WITNESS WHEREOF, the Executive has hereunto set his or her hand and, pursuant to the authorization from its Board of Directors, the Company has caused these presents to be executed in its name and on its behalf, all as of the day and year first above written.

TransMontaigne Inc.	Larry F. Clynch
/s/ DONALD H. ANDERSON	/s/ LARRY F. CLYNCH
Donald H. Anderson, President Date: April 16, 2002	Date: April 16, 2002

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EX-10.4

Exhibit 10.4

CONFIDENTIAL

CHANGE IN CONTROL AGREEMENT

         This Agreement is between TransMontaigne Inc. (“Company”), and William S. Dickey (the “Executive”), and shall be effective as of April 12, 2001 (the “Effective Date”).

         WHEREAS the Board of Directors of the Company (the “Board”) has determined that it is in the best interests of the Company and its stockholders to assure that the Company will have the continued dedication of the Executive notwithstanding the possibility, threat or occurrence of a Change of Control (as defined in this Agreement) of the Company; and

         WHEREAS, the Board has further determined that in order to diminish the distraction of the Executive attributable to the uncertainties and risks created by a pending or threatened Change of Control and in order to encourage the Executive’s full attention and dedication to the Company both currently and in the event of any threatened or pending Change in Control, it is appropriate to provide the Executive with compensation and benefits upon the occurrence of a Change in Control which ensure that the compensation and benefits expectations of the Executive will be met and which are competitive with those of other corporations; and

         WHEREAS in order to accomplish these objectives, the Company and the Executive accordingly desire to enter into this Agreement on the terms and conditions set forth below;

         NOW, THEREFORE, in consideration of the promises and mutual covenants set forth herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:

         1.       Term of Agreement. The term of this Agreement (the “Term”) shall commence on the Effective Date and shall continue until the third anniversary thereof; provided, however, that on such anniversary date and on each subsequent anniversary of the Effective Date, the term of this Agreement shall automatically be extended for one additional year unless, not later than ninety (90) days prior to such anniversary date, either party shall have given notice that such party does not wish to extend the Term; and provided, further, that if an actual or threatened Change in Control (as defined in paragraph 3 below) shall have occurred during the original or any extended Term of this Agreement, then the Term of this Agreement shall continue for a period twenty-four (24) calendar months beyond the calendar month in which such actual or threatened Change in Control occurs.

         2.       Employment After Change in Control. If the Executive is in the employ of the Company on the date of an actual or threatened Change in Control, the Company shall continue Executive in its employ for the period commencing on the date of the

actual Change in Control and ending on the last day of the Term of this Agreement (the “Employment Period”). During the Employment Period, the Executive shall hold such position with the Company and exercise such authority and perform such duties as are substantially commensurate with the Executive’s position, authority and duties immediately prior to the threatened or actual Change in Control. The Executive agrees that, during the Employment Period, the Executive shall devote his full professional time and attention to the Executive’s duties and perform such duties faithfully and efficiently.

         Notwithstanding anything in this Agreement to the contrary, if a Change in Control occurs and if the Executive’s employment with the Company is terminated prior to the date on which the Change in Control occurs, and if it is reasonably demonstrated by the Executive that such termination of employment (i) was at the request of a third party, who has taken steps reasonably calculated to effect a Change in Control or (ii) otherwise arose in connection with or anticipation of a Change in Control, then for all purposes of this Agreement, the “Employment Period” shall mean the date immediately prior to the date of such termination of employment.

         3.       Change in Control.For purposes of this Agreement, an actual “Change in Control” shall be deemed to have occurred if upon the occurrence of any of the following:

                  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

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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.

                  For the purposes of this Agreement, a “threatened Change in Control” means the determination by the Board, in the exercise of its reasonable business judgment, that a third person has taken steps to effect an actual Change in Control and that such actual Change of Control could occur within 90 days after such determination.

         4.       Compensation During the Employment Period. During the Employment Period, the Executive shall be compensated as follows:

                  a.   The Executive shall receive an annual salary which is not less than his or her annual salary immediately prior to the Employment Period and shall be eligible to receive an increase in annual salary which is not less favorable than increases in salary for the Company’s other executives with similar responsibilities and performance levels;

                  b.   the Executive shall be eligible to participate in short-term and long-term cash-based incentive compensation plans which, in the aggregate, provide bonus opportunities that are not less favorable to the Executive than the greater of (i) the opportunities provided to the Company’s other executives with similar responsibilities and performance levels; and, (ii) the opportunities provided to the Executive under all such plans in which the Executive was participating prior to the Employment Period;

                  c.   the Executive shall be eligible to participate in stock option, performance awards, restricted stock and other equity-based incentive compensation plans (the “Plans”) on a basis not less favorable to the Executive than the greater of the Plans available (i) to the Executive immediately prior to the Employment Period, or (ii) to other executives of the Company with similar responsibilities and performance levels; and,

                  d.   the Executive shall be eligible to receive employee benefits (including, but not limited to, tax-qualified and nonqualified savings plan benefits, medical insurance, disability income protection, life insurance coverage and death benefits) and perquisites which are not less favorable to the Executive than (i) the employee benefits and perquisites provided to the Company’s other executives, or (ii) the employee benefits and perquisites to which the Executive would be entitled under the Company’s employee benefit plans and perquisites as in effect immediately prior to the Employment Period.

         5.       Termination. For purposes of this Agreement, “Termination” shall mean termination of the employment of the Executive during the Employment Period (i) by the Company, for any reason other than death or Cause (as described below), or (ii) by resignation of the Executive for Good Reason. For the purposes of this Agreement, “Good Reason” shall include, but not be limited to, any of the following events:

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                  a.   the assignment to the Executive by the Company of duties inconsistent with, or a substantial alteration in the nature or status of, the Executive’s responsibilities immediately prior to a Change in Control.

                  b.   a reduction by the Company in the Executive’s compensation or benefits as in effect on the date of a Change in Control;

                  c.   a relocation of the Company’s principal offices to a location outside the Denver, Colorado metropolitan area, or the Executive’s relocation to any place other than the Denver, Colorado offices of the Company, except for reasonably required travel by the Executive on the Company’s business.

                  d.   any material breach by the Company of any provision of this Agreement, if such material breach has not been cured within thirty (30) days following written notice of such breach by the Executive to the Company setting forth the nature of the breach; or

                  e.   any failure by the Company to obtain the assumption and performance of this Agreement by any successor (by merger, consolidation or otherwise) or assign by the Company in accordance with paragraph 15(d) of this Agreement.

                  The date of the Executive’s Termination under this paragraph 5 shall be the date specified by the Executive or the Company, as the case may be, in a written notice to the other party complying with the requirements of paragraph 15(a) below. For purposes of this Agreement, “Cause” shall mean

                           (1)   the Executive’s material breach of the terms of this Agreement, if such material breach has not been substantially cured within thirty (30) days following written notice to the Executive from the Company of such breach setting forth with specificity the nature of the violation or, if cure cannot reasonably be effected within such 30-day period, if the Executive does not commence such cure within such 30-day period and thereafter pursue such cure continuously and with due diligence until cure has been effected;

                           (2)   the Executive’s willful dishonesty towards, fraud upon, felony crime against, deliberate material injury or material bad faith action with respect to, or deliberate or attempted injury to the Company; or

                           (3)   the Officer’s conviction for any felony crime (whether in connection with the Company’s affairs or otherwise).

         6.       Severance Payments. Subject to the provisions of paragraph 9 below, in the event of a Termination described in paragraph 5 above:

                  a.   the Company shall pay the Executive’s unpaid salary, accrued vacation pay and unreimbursed business expenses through and including the date of Termination; and

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                  b.   in addition, following Executive’s execution of a legal release in a form satisfactory to Company in its sole discretion reasonably exercised and drafted so as to ensure a final, complete and enforceable release of all claims that Executive has or may have against Company relating to or arising in any way from Executive’s employment with Company and/or the termination thereof, and complete and continuing confidentiality of Company’s proprietary information and trade secrets, the circumstances of Executive’s separation from Company, and compensation received by Executive in connection with that separation, in lieu of the amount otherwise payable under paragraph 4 above, the Executive shall continue to receive, at the Company’s expense, medical insurance, disability income protection, life insurance coverage and death benefits, and perquisites in accordance with subparagraph 4(d) above for a period of 24 months after the date of Termination (under COBRA or through an individual conversion policy, as appropriate) or until Executive becomes eligible for comparable benefits under benefit plans sponsored by another employer, and shall also be entitled to a lump sum payment in cash no later than ten (10) business days after the date of Termination equal to the sum of:

                           (1)   an amount equal to 2 times the Executive’s annual salary rate plus 2 times target bonus award in effect immediately prior to the date of Termination.

                           (2)   an amount equal to the assigned target bonus for the Executive for the year of Termination prorated through the date of Termination.

         7.       Deferred Compensation Plans.

                  a.   For purposes of this paragraph, “deferred compensation plans” shall mean all nonqualified deferred compensation plans presently maintained by the Company or adopted in the future by the Company. If an actual or threatened Change in Control occurs during the original or any extended Term of this Agreement, the Company shall, within thirty (30) days after the earlier of the date of such threatened Change in Control or the date of such actual Change in Control, establish a “rabbi trust” and transfer to such “rabbi trust” an amount of cash sufficient to provide all benefits accrued by the Executive under all deferred compensation plans. Thereafter, the Company will, at least quarterly, transfer to the “rabbi trust” an amount of cash sufficient to provide any additional benefits accrued by the Executive under all deferred compensation plans.

                  b.   In the event of a Termination as set forth in paragraph 5 above: (a) all of the Executive’s benefits, including without limitation matching contributions, under all deferred compensation plans shall be 100% vested, regardless of the Executive’s years of service with the Company and regardless of any vesting provisions of such deferred compensation plans; (b) the Executive will be entitled to all benefits, including without limitation matching contributions, under all deferred compensation plans for the year in which such Termination occurs, regardless of any provision in any such deferred compensation plan making such benefits contingent upon employment for a particular portion of the year or as of a particular day in that year or making such

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benefits contingent upon accrual of a specific number of hours, days, weeks, or months of service during that year.

                  c.   The provisions of paragraph 7(b) apply only in the event of a “Termination” as defined in paragraph 5. Under paragraph 5, the term “Termination means terminations of employment of the Executive during the “Employment Period.” Under paragraph 2, the “Employment Period” commences on the date of an actual Change in Control. Therefore, the provisions of paragraph 7(b) do not apply in the case of a termination of employment of the Executive unless such termination of employment of the Executive occurs on or after the date of an actual Change in Control and unless such termination of employment of the Executive also meets the other requirements of the definition of the term “Termination” set forth in Paragraph 5.

         8.       Stock Based Awards. In the event of a Termination as set forth in paragraph 5 above, the restrictions on any outstanding stock-based awards (including, without limitation, nonqualified stock options, incentive stock options and restricted stock) granted to Executive under any incentive plan or arrangement shall lapse and such stock-based awards shall become 100% vested, and all stock options and stock appreciation rights granted to Executive shall become immediately exercisable. Notwithstanding anything to the contrary in the Executive’s stock option agreements with the Company, all such stock options shall be exercisable for a period of twelve (12) months after the date of Termination (but in no event beyond the expiration date applicable to such stock options)

         9.       Make-Whole Payments. If any payment or benefit to which the Executive is entitled, whether under this Agreement or otherwise, in connection with a Change in Control or the Executive’s termination of employment (a “Payment”) is subject to any tax under section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), or any similar federal or state law (an “Excise Tax”), the Company shall pay to the Executive an additional amount (the “Make Whole-Amount”) which is equal to (i) the amount of the Excise Tax, plus (ii) the aggregate amount of any interest, penalties, fines or additions to any tax that are imposed in connections with such Excise Tax, plus (iii) all income, excise and other applicable taxes imposed on the Executive under the laws of any Federal, state or local government or taxing authority by reason of the payments required under clause (i) and clause (ii) and this clause (iii). Notwithstanding any other provisions of this Agreement, however, such Make Whole-Amount will not be paid to the Executive if the Payment is less than ten (10) percent above the maximum amount that may be paid without incurring Excise Tax; and in such event, the cash severance payments provided in paragraph 6 above and/or the outplacement services provided in paragraph 10 below, at the Executive’s election, shall be reduced to a level that results in the total Payment being equal to the maximum amount that may be paid without incurring Excise Tax.

                  a.   For purposes of determining the Make-Whole Amount, the Executive shall be deemed to be taxed at the highest marginal rate under all applicable local, state, federal and foreign income tax laws for the year in which the Make-Whole Amount is paid. The Make-Whole

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Amount payable with respect to an Excise Tax shall be paid by the Company coincident with the Payment with respect to which such Excise Tax relates.

                  b.   All calculations under this paragraph 9 shall be made initially by the Company and the Company shall provide prompt written notice thereof to the Executive to enable the Executive to timely file all applicable tax returns. Upon request of the Executive, the Company shall provide the Executive with sufficient tax and compensation data to enable the Executive or his tax advisor to independently make the calculations described in subparagraph (a) above and the Company shall reimburse the Executive for reasonable fees and expenses incurred for any such verification.

                  c.   If the Executive gives written notice to the Company of any objection to the results of the Company’s calculations within sixty (60) days of the Executive’s receipt of written notice thereof, the dispute shall be referred for determination to tax counsel selected by the independent auditors of the Company (“Tax Counsel”). The Company shall pay all reasonable fees and expenses of such Tax Counsel. Pending such determination by Tax Counsel, the Company shall pay the Executive the Make-Whole Amount as determined by the Company in good faith. The Company shall pay the Executive any additional amount determined by Tax Counsel to be due under this paragraph 9 (together with interest thereon at a rate equal to 120% of the Federal short-term rate compounded dailydetermined under section 1274(d) of the Code) promptly after such determination.

                  d.   The determination by Tax Counsel shall be conclusive and binding upon all parties unless the Internal Revenue Service, a court of competent jurisdiction, or such other duly empowered governmental body or agency (a “Tax Authority”) determines that the Executive owes a greater or lesser amount of Excise Tax with respect to any Payment than the amount determined by Tax Counsel.

                  e.   If a Taxing Authority makes a claim against the Executive which, if successful, would require the Company to make a payment under this paragraph 9, the Executive agrees to contest the claim, with counsel reasonably satisfactory to the Company, on request of the Company, subject to the following conditions:

                           (1)   The Executive shall notify the Company of any such claim within ten (10) days of becoming aware thereof. In the event that the Company desires the claim to be contested, it shall promptly (but in no event more than thirty (30) days after the notice from the Executive or such shorter time as the Taxing Authority may specify for responding to such claim) request the Executive contest the claim. The Executive shall not make any payment of any tax which is subject of the claim before the Executive has given the notice or during the thirty (30) day period thereafter unless the Executive receives written instructions from the Company to make such payment together with an advance of funds sufficient to make the requested payment plus any amounts payable under this paragraph 9 determined as if such advance were an Excise Tax, in which case the Executive will act promptly in accordance with such instructions.

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                            (2)   If the Company so requests, the Executive will contest the claim by either paying the tax claimed and suing for a refund in the appropriate court or contesting the claim in the United States Tax Court or other appropriate court, as directed by the Company; provided, however, that any request by the Company for the Executive to pay the tax shall be accompanied by an advance from the Company to the Executive of funds sufficient to make the requested payment plus any amounts payable under this paragraph 9 determined as if such advance were an Excise Tax. If directed by the Company in writing, the Executive will take all action necessary to compromise or settle the claim, but in no event will the Executive compromise or settle the claim or cease to contest the claim without the written consent of the Company; provided, however, that the Executive may take any such action if the Executive waives in writing his or her right to a payment under this paragraph 9 for any amounts payable in connection with such claim. The Executive agrees to cooperate in good faith with the Company in contesting the claim and to comply with any reasonable request from the Company concerning the contest of the claim, including the pursuit of administrative remedies, the appropriate forum for any judicial proceedings, and the legal basis for contesting the claim. Upon request of the Company, the Executive shall take appropriate appeals of any judgment or decision that would require the Company to make a payment under this paragraph 9. Provided that the Executive is in compliance with the provisions of this paragraph, the Company shall be liable for and indemnify the Executive against any loss in connection with, and all costs and expenses, including attorneys’ fees, which may be incurred as a result of, contesting the claim, and shall provide to the Executive, within ten (10) days after each written request therefor by the Executive, cash advances or reimbursement for all such costs and expenses actually incurred or reasonably expected to be incurred by the Executive as a result of contesting the claim.

                  f.   Should a Tax Authority finally determine that an additional Excise Tax is owed, then the Company shall pay an additional Make-Whole Amount to the Executive in a manner consistent with this paragraph 9 with respect to any additional Excise Tax and any assessed interest, fines, or penalties. If any Excise Tax as calculated by the Company or Tax Counsel, as the case may be, is finally determined by a Tax Authority to exceed the amount required to be paid under applicable law, then the Executive shall repay such excess to the Company within thirty (30) days of such determination; provided that such repayment shall be reduced by the amount of any taxes paid by the Executive on such excess which is not offset by the tax benefit attributable to the repayment.

         10.      Outplacement Services. If the Executive’s Termination occurs during the Employment Period, the Company shall provide to the Executive, at the Executive’s election, outplacement services of an experienced firm, selected by the Company and acceptable to the Executive, located not more than thirty miles from the location of Executive’s office immediately prior to the Employment Period, provided that the cost of such services shall not exceed $30,000 and such services shall not extend beyond six (6) months from the date of Executive’s Termination.

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         11.      Deductions and Withholding. All payments to the Executive under this Agreement will be subject to applicable deductions and withholding of state and federal taxes.

         12.      Confidentiality, Non-Solicitation and Non-Competition. The Executive agrees that:

                  a.   Except as may be required by the lawful order of a court or agency of competent jurisdiction, or except to the extent that the Executive has the express written authorization from the Company, the Executive agrees to keep secret and confidential for a period of two years following the termination of Executive’s employmentall non-public information concerning the Company or any entity in which the Company has a 25% or greater ownership interest (“Company-Related Entity”) which was acquired by or disclosed to Executive during the course of Executive’s employment with the Company or any Company-Related Entity controlled by the Company, and not to disclose the same, either directly or indirectly, to any other person, firm or business entity or to use it in any way.

                  b.   While the Executive is employed by the Company or Company-Related Entity and for a period of one year after the date of the Executive terminates employment for any reason, the Executive covenants and agrees that Executive will not, whether for Executive or for any other person, business, partnership, association, firm, company or corporation, initiate contact with, solicit, divert or take away any of the customers (entities or individuals from which the Company or any Company-Related Entity receives rents or payments for services) of the Company or any Company-Related Entity or employees of the Company or any Company-Related Entity in existence from time to time during Executive’s employment with the Company or any Company-Related Entity and at the time of such initiation, solicitation or diversion.

                  c.   While the Executive is employed by the Company or any Company- Related Entity, the Executive covenants and agrees that Executive will not, directly or indirectly, engage in, assist, perform services for, plan for, establish or open, or have any financial interest (other than (i) ownership of 1% or less of the outstanding stock of any corporation listed on the New York or American Stock Exchange or included in the National Association of Securities Dealers Automated Quotation System, or (ii) ownership of securities in any entity affiliated with the Company) in any person, firm, corporation, or business entity (whether as an employee, officer, director or consultant) that engages primarily in the refined petroleum product terminaling, pipeline transportation or logistical services business.

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         13.      Dispute Resolution.

                  a.   Executive and Company agree that in the event of any controversy or claim arising out of this Agreement, they shall negotiate in good faith to resolve the controversy or claim privately, amicably and confidentially. Each party may consult with counsel in connection with such negotiations.

                  b.   In the event that such controversy or claim cannot be resolved through such good-faith negotiations, the disputing party may proceed to initiate litigation within thirty (30) days from the date of commencement of such negotiations. In such event, the Company agrees to pay as incurred, to the full extent permitted by law, all legal fees and expenses which the Executive may reasonably incur as a result of any contest (regardless of the outcome thereof, but not in the case of fees incurred with respect to a claim brought in bad faith by the Executive) initiated by the Company, the Executive or others regarding the validity or enforceability of, or liability under, any provision of this Agreement or any guarantee of performance thereof (including as a result of any contest by the Executive with respect to the amount of any payment pursuant to this Agreement), plus in each case, interest on any delayed payment at the applicable Federal rate provided for in Section 7872(f)(2)(A) of the Code.

         14.      Mitigation and Set-Off. The Executive shall not be required to mitigate the amount of any payment provided for in this Agreement by seeking other employment or otherwise. The Company shall not be entitled to set-off against the amounts payable to the Executive under this Agreement any amounts owed to the Company by the Executive, or any amounts earned, or which could have been earned, by the Executive after the date of Termination of Executive’s employment with the Company.

         15.      Miscellaneous Provisions.

                  a.   Notice. Except as otherwise specifically provided in this Agreement, any notices, requests, demands or other communications provided for by this Agreement shall be sufficient if in writing and if sent by telecopy or facsimile transmission or by hand delivery or registered, certified, or overnight mail to the Executive at the last address Executive has filed in writing with the Company or, in the case of the Company, to the attention of the Secretary of the Company, at its principal executive offices. Such notices and communications shall be deemed to have been received on the date of confirmation of receipt, in the case of telecopy or facsimile transmission, or upon the date of delivery thereof or the fifth (5th) business day after the mailing thereof, whichever is earlier, in the case of the remaining delivery methods.

                           Any Termination by the Company for Cause, or by the Executive for Good Reason, shall be communicated by “Notice of Termination” to the other party hereto given in accordance with the procedures above referenced. For the purposes of this Agreement, a “Notice of Termination” means a written notice which (i) indicates the specific Termination provision in this Agreement relied upon, (ii) to the extent applicable, sets forth in reasonable detail the facts and circumstances claimed to provide

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a basis for the Executive’s Termination under the provision so indicated, and (iii) if the date of Termination is other than the date of receipt of such Notice of Termination, specifies the date of Termination, which date shall not be more than thirty (30) days after the giving of such notice. The failure by the Executive or the Company to set forth in the Notice of Termination any fact or circumstance which contributes to a showing of Good Reason or Cause shall not waive any right of the Executive or the Company, as the case may be, hereunder or preclude the Executive or the Company, respectively, from asserting such fact or circumstance in enforcing the Executive’s or the Company’s rights hereunder.

                  b.   Binding Effect; Assignment. This Agreement shall inure to the benefit of, and shall be binding upon, the parties hereto and their respective successors, assigns, heirs, and legal representatives. This Agreement may not be assigned by Executive, nor may Executive assign or pledge any of his or her rights, including rights to payment, hereunder.

                  c.   Governing Law. The provisions of this Agreement shall be construed in accordance with the laws of the State of Colorado, without application of conflict of laws provisions thereunder.

                  d.   Successors to the Company. The Company shall require any successor, whether direct or indirect, by purchase, merger, consolidation or otherwise, and whether to all or substantially all of the business and/or assets of the Company, to assume and to expressly perform the obligations of this Agreement in the same manner and to the same extent that the Company would be required to perform it if no such succession had taken place. As used in this Agreement, “Company” shall mean the Company as hereinbefore defined and any successor to its business and/or assets as aforesaid which assumes and agrees to perform this Agreement by operation of law or otherwise. Such assumption shall be by an express agreement signed by both the successor Company and the Executive and shall be reasonably satisfactory to the Executive. If the Company fails to obtain such an express assumption, that shall be a breach of this Agreement and shall entitle the Executive to the same benefits and compensation as he or she would be entitled to if the Employment Period was terminated under paragraph 5.

                  e.   Employment Status. Nothing in this Agreement shall be deemed to create an employment agreement between the Company and the Executive providing for the employment of the Executive by the Company for any fixed period of time, other than as provided in paragraphs 1 and 2. The Executive’s employment is terminable at-will by the Company or the Executive, meaning that either party may terminate the employment relationship at any time, with or without cause, subject to the provisions of paragraphs 1, 2, and 5. Upon termination of the Executive’s employment prior to the date of a threatened Change in Control, there shall be no further rights under this Agreement.

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                  f.   Entire Agreement. This Agreement contains the entire agreement between the parties hereto and supersedes all prior agreements and understandings, oral or written, between the parties hereto concerning its subject matter, with respect to the subject matter hereof.

                  g.   Amendments and Waivers. This Agreement may not be modified or amended except by an instrument or instruments in writing signed by the party against whom enforcement or any such modification or amendment is sought. Either party hereto may, by an instrument in writing, waive compliance by the other party with any term or provision of this Agreement on the part of such other party hereto to be performed or complied with. The waiver by any party hereto of a breach of any term or provision of this Agreement shall not be construed as a waiver of any subsequent breach.

                  h.   Construction. Headings in this Agreement are for convenience only and shall not control the meaning of this Agreement. Whenever applicable, masculine and neutral pronouns shall equally apply to the feminine genders; the singular shall include the plural and the plural shall include the singular. The parties have reviewed and understand this Agreement, and each has had a full opportunity to negotiate the Agreement’s terms and to consult with counsel of their own choosing. Therefore, the parties expressly waive all applicable common law and statutory rules of construction that any provision of this Agreement should be construed against the Agreement’s drafter, and agree that this Agreement and all amendments thereto shall be construed as a whole, according to the fair meaning of the language used.

                  i.   Severability. In the event that any provision or portion of this Agreement shall be determined to be invalid or unenforceable for any reason, the remaining provisions of this Agreement shall be unaffected thereby and shall remain in full force and effect.

                  j.   Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same agreement.

         IN WITNESS WHEREOF, the Executive has hereunto set his or her hand and, pursuant to the authorization from its Board of Directors, the Company has caused these presents to be executed in its name and on its behalf, all as of the day and year first above written.

TransMontaigne Inc.	William S. Dickey
/s/ DONALD H. ANDERSON	/s/ WILLIAM S. DICKEY
Donald H. Anderson, President Date: April 12, 2001	Date: April 16, 2001

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EX-10.5

Exhibit 10.5

CONFIDENTIAL

CHANGE IN CONTROL AGREEMENT

         This Agreement is between TransMontaigne Inc. (“Company”), and Harold R. Logan, Jr. (the “Executive”), and shall be effective as of April 12, 2001 (the “Effective Date”).

         WHEREAS the Board of Directors of the Company (the “Board”) has determined that it is in the best interests of the Company and its stockholders to assure that the Company will have the continued dedication of the Executive notwithstanding the possibility, threat or occurrence of a Change of Control (as defined in this Agreement) of the Company; and

         WHEREAS, the Board has further determined that in order to diminish the distraction of the Executive attributable to the uncertainties and risks created by a pending or threatened Change of Control and in order to encourage the Executive’s full attention and dedication to the Company both currently and in the event of any threatened or pending Change in Control, it is appropriate to provide the Executive with compensation and benefits upon the occurrence of a Change in Control which ensure that the compensation and benefits expectations of the Executive will be met and which are competitive with those of other corporations; and

         WHEREAS in order to accomplish these objectives, the Company and the Executive accordingly desire to enter into this Agreement on the terms and conditions set forth below;

         NOW, THEREFORE, in consideration of the promises and mutual covenants set forth herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:

         1.       Term of Agreement. The term of this Agreement (the “Term”) shall commence on the Effective Date and shall continue until the third anniversary thereof; provided, however, that on such anniversary date and on each subsequent anniversary of the Effective Date, the term of this Agreement shall automatically be extended for one additional year unless, not later than ninety (90) days prior to such anniversary date, either party shall have given notice that such party does not wish to extend the Term; and provided, further, that if an actual or threatened Change in Control (as defined in paragraph 3 below) shall have occurred during the original or any extended Term of this Agreement, then the Term of this Agreement shall continue for a period twenty-four (24) calendar months beyond the calendar month in which such actual or threatened Change in Control occurs.

         2.       Employment After Change in Control. If the Executive is in the employ of the Company on the date of an actual or threatened Change in Control, the Company shall continue Executive in its employ for the period commencing on the date of the

actual Change in Control and ending on the last day of the Term of this Agreement (the “Employment Period”). During the Employment Period, the Executive shall hold such position with the Company and exercise such authority and perform such duties as are substantially commensurate with the Executive’s position, authority and duties immediately prior to the threatened or actual Change in Control. The Executive agrees that, during the Employment Period, the Executive shall devote his full professional time and attention to the Executive’s duties and perform such duties faithfully and efficiently.

                  Notwithstanding anything in this Agreement to the contrary, if a Change in Control occurs and if the Executive’s employment with the Company is terminated prior to the date on which the Change in Control occurs, and if it is reasonably demonstrated by the Executive that such termination of employment (i) was at the request of a third party, who has taken steps reasonably calculated to effect a Change in Control or (ii) otherwise arose in connection with or anticipation of a Change in Control, then for all purposes of this Agreement, the “Employment Period” shall mean the date immediately prior to the date of such termination of employment.

         3.       Change in Control. For purposes of this Agreement, an actual “Change in Control” shall be deemed to have occurred if upon the occurrence of any of the following:

                  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

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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.

                  For the purposes of this Agreement, a “threatened Change in Control” means the determination by the Board, in the exercise of its reasonable business judgment, that a third person has taken steps to effect an actual Change in Control and that such actual Change of Control could occur within 90 days after such determination.

         4.       Compensation During the Employment Period. During the Employment Period, the Executive shall be compensated as follows:

                  a.    The Executive shall receive an annual salary which is not less than his or her annual salary immediately prior to the Employment Period and shall be eligible to receive an increase in annual salary which is not less favorable than increases in salary for the Company’s other executives with similar responsibilities and performance levels;

                  b.    the Executive shall be eligible to participate in short-term and long-term cash-based incentive compensation plans which, in the aggregate, provide bonus opportunities that are not less favorable to the Executive than the greater of (i) the opportunities provided to the Company’s other executives with similar responsibilities and performance levels; and, (ii) the opportunities provided to the Executive under all such plans in which the Executive was participating prior to the Employment Period;

                  c.    the Executive shall be eligible to participate in stock option, performance awards, restricted stock and other equity-based incentive compensation plans (the “Plans”) on a basis not less favorable to the Executive than the greater of the Plans available (i) to the Executive immediately prior to the Employment Period, or (ii) to other executives of the Company with similar responsibilities and performance levels; and,

                  d.    the Executive shall be eligible to receive employee benefits (including, but not limited to, tax-qualified and nonqualified savings plan benefits, medical insurance, disability income protection, life insurance coverage and death benefits) and perquisites which are not less favorable to the Executive than (i) the employee benefits and perquisites provided to the Company’s other executives, or (ii) the employee benefits and perquisites to which the Executive would be entitled under the Company’s employee benefit plans and perquisites as in effect immediately prior to the Employment Period.

         5.       Termination. For purposes of this Agreement, “Termination” shall mean termination of the employment of the Executive during the Employment Period (i) by the Company, for any reason other than death or Cause (as described below), or (ii) by resignation of the Executive for Good Reason. For the purposes of this Agreement, “Good Reason” shall include, but not be limited to, any of the following events:

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                  a.   the assignment to the Executive by the Company of duties inconsistent with, or a substantial alteration in the nature or status of, the Executive’s responsibilities immediately prior to a Change in Control.

                  b.   a reduction by the Company in the Executive’s compensation or benefits as in effect on the date of a Change in Control;

                  c.   a relocation of the Company’s principal offices to a location outside the Denver, Coloradometropolitan area, or the Executive’s relocation to any place other than the Denver, Coloradooffices of the Company, except for reasonably required travel by the Executive on the Company’s business.

                  d.   any material breach by the Company of any provision of this Agreement, if such material breach has not been cured within thirty (30) days following written notice of such breach by the Executive to the Company setting forth the nature of the breach;

                  e.   any failure by the Company to obtain the assumption and performance of this Agreement by any successor (by merger, consolidation or otherwise) or assign by the Company in accordance with paragraph 15(d) of this Agreement; or

                  f.   Executive determines, in his sole discretion, during the Employment Period, that circumstances have so changed that he is not willing to continue in his position with the Company and elects a Termination of his employment with the Company.

                  The date of the Executive’s Termination under this paragraph 5 shall be the date specified by the Executive or the Company, as the case may be, in a written notice to the other party complying with the requirements of paragraph 15(a) below. For purposes of this Agreement, “Cause” shall mean

                           (1)    the Executive’s material breach of the terms of this Agreement, if such material breach has not been substantially cured within thirty (30) days following written notice to the Executive from the Company of such breach setting forth with specificity the nature of the violation or, if cure cannot reasonably be effected within such 30-day period, if the Executive does not commence such cure within such 30-day period and thereafter pursue such cure continuously and with due diligence until cure has been effected;

                           (2)    the Executive’s willful dishonesty towards, fraud upon, felony crime against, deliberate material injury or material bad faith action with respect to, or deliberate or attempted injury to the Company; or

                           (3)    the Officer’s conviction for any felony crime (whether in connection with the Company’s affairs or otherwise).

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         6.       Severance Payments. Subject to the provisions of paragraph 9 below, in the event of a Termination described in paragraph 5 above:

                  a.    the Company shall pay the Executive’s unpaid salary, accrued vacation pay and unreimbursed business expenses through and including the date of Termination; and

                  b.    in addition, following Executive’s execution of a legal release in a form satisfactory to Company in its sole discretion reasonably exercised and drafted so as to ensure a final, complete and enforceable release of all claims that Executive has or may have against Company relating to or arising in any way from Executive’s employment with Company and/or the termination thereof, and complete and continuing confidentiality of Company’s proprietary information and trade secrets, the circumstances of Executive’s separation from Company, and compensation received by Executive in connection with that separation, in lieu of the amount otherwise payable under paragraph 4 above, the Executive shall continue to receive, at the Company’s expense, medical insurance, disability income protection, life insurance coverage and death benefits, and perquisites in accordance with subparagraph 4(d) above for a period of 24 months after the date of Termination (under COBRA or through an individual conversion policy, as appropriate) or until Executive becomes eligible for comparable benefits under benefit plans sponsored by another employer, and shall also be entitled to a lump sum payment in cash no later than ten (10) business days after the date of Termination equal to the sum of:

                           (1)     an amount equal to 2 times the Executive’s annual salary rate plus 2 times target bonus award in effect immediately prior to the date of Termination.

                           (2)     an amount equal to the assigned target bonus for the Executive for the year of Termination prorated through the date of Termination.

         7.       Deferred Compensation Plans.

                  a.   For purposes of this paragraph, “deferred compensation plans” shall mean all nonqualified deferred compensation plans presently maintained by the Company or adopted in the future by the Company. If an actual or threatened Change in Control occurs during the original or any extended Term of this Agreement, the Company shall, within thirty (30) days after the earlier of the date of such threatened Change in Control or the date of such actual Change in Control, establish a “rabbi trust” and transfer to such “rabbi trust” an amount of cash sufficient to provide all benefits accrued by the Executive under all deferred compensation plans. Thereafter, the Company will, at least quarterly, transfer to the “rabbi trust” an amount of cash sufficient to provide any additional benefits accrued by the Executive under all deferred compensation plans.

                  b.   In the event of a Termination as set forth in paragraph 5 above: (a) all of the Executive’s benefits, including without limitation matching contributions,

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under all deferred compensation plans shall be 100% vested, regardless of the Executive’s years of service with the Company and regardless of any vesting provisions of such deferred compensation plans; (b) the Executive will be entitled to all benefits, including without limitation matching contributions, under all deferred compensation plans for the year in which such Termination occurs, regardless of any provision in any such deferred compensation plan making such benefits contingent upon employment for a particular portion of the year or as of a particular day in that year or making such benefits contingent upon accrual of a specific number of hours, days, weeks, or months of service during that year.

                  c.    The provisions of paragraph 7(b) apply only in the event of a “Termination” as defined in paragraph 5. Under paragraph 5, the term “Termination means terminations of employment of the Executive during the “Employment Period.” Under paragraph 2, the “Employment Period” commences on the date of an actual Change in Control. Therefore, the provisions of paragraph 7(b) do not apply in the case of a termination of employment of the Executive unless such termination of employment of the Executive occurs on or after the date of an actual Change in Control and unless such termination of employment of the Executive also meets the other requirements of the definition of the term “Termination” set forth in Paragraph 5.

         8.       Stock Based Awards. In the event of a Termination as set forth in paragraph 5 above, the restrictions on any outstanding stock-based awards (including, without limitation, nonqualified stock options, incentive stock options and restricted stock) granted to Executive under any incentive plan or arrangement shall lapse and such stock-based awards shall become 100% vested, and all stock options and stock appreciation rights granted to Executive shall become immediately exercisable. Notwithstanding anything to the contrary in the Executive’s stock option agreements with the Company, all such stock options shall be exercisable for a period of twelve (12) months after the date of Termination (but in no event beyond the expiration date applicable to such stock options)

         9.       Make-Whole Payments. If any payment or benefit to which the Executive is entitled, whether under this Agreement or otherwise, in connection with a Change in Control or the Executive’s termination of employment (a “Payment”) is subject to any tax under section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), or any similar federal or state law (an “Excise Tax”), the Company shall pay to the Executive an additional amount (the “Make Whole-Amount”) which is equal to (i) the amount of the Excise Tax, plus (ii) the aggregate amount of any interest, penalties, fines or additions to any tax that are imposed in connections with such Excise Tax, plus (iii) all income, excise and other applicable taxes imposed on the Executive under the laws of any Federal, state or local government or taxing authority by reason of the payments required under clause (i) and clause (ii) and this clause (iii). Notwithstanding any other provisions of this Agreement, however, such Make Whole-Amount will not be paid to the Executive if the Payment is less than ten (10) percent above the maximum amount that may be paid without incurring Excise Tax; and in such event, the cash severance payments provided in paragraph 6 above and/or the outplacement services

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provided in paragraph 10 below, at the Executive’s election, shall be reduced to a level that results in the total Payment being equal to the maximum amount that may be paid without incurring Excise Tax.

                  a.   For purposes of determining the Make-Whole Amount, the Executive shall be deemed to be taxed at the highest marginal rate under all applicable local, state, federal and foreign income tax laws for the year in which the Make-Whole Amount is paid. The Make-Whole Amount payable with respect to an Excise Tax shall be paid by the Company coincident with the Payment with respect to which such Excise Tax relates.

                  b.   All calculations under this paragraph 9 shall be made initially by the Company and the Company shall provide prompt written notice thereof to the Executive to enable the Executive to timely file all applicable tax returns. Upon request of the Executive, the Company shall provide the Executive with sufficient tax and compensation data to enable the Executive or his tax advisor to independently make the calculations described in subparagraph (a) above and the Company shall reimburse the Executive for reasonable fees and expenses incurred for any such verification.

                  c.   If the Executive gives written notice to the Company of any objection to the results of the Company’s calculations within sixty (60) days of the Executive’s receipt of written notice thereof, the dispute shall be referred for determination to tax counsel selected by the independent auditors of the Company (“Tax Counsel”). The Company shall pay all reasonable fees and expenses of such Tax Counsel. Pending such determination by Tax Counsel, the Company shall pay the Executive the Make-Whole Amount as determined by the Company in good faith. The Company shall pay the Executive any additional amount determined by Tax Counsel to be due under this paragraph 9 (together with interest thereon at a rate equal to 120% of the Federal short-term rate compounded daily determined under section 1274(d) of the Code) promptly after such determination.

                  d.   The determination by Tax Counsel shall be conclusive and binding upon all parties unless the Internal Revenue Service, a court of competent jurisdiction, or such other duly empowered governmental body or agency (a “Tax Authority”) determines that the Executive owes a greater or lesser amount of Excise Tax with respect to any Payment than the amount determined by Tax Counsel.

                  e.   If a Taxing Authority makes a claim against the Executive which, if successful, would require the Company to make a payment under this paragraph 9, the Executive agrees to contest the claim, with counsel reasonably satisfactory to the Company, on request of the Company, subject to the following conditions:

                           (1)   The Executive shall notify the Company of any such claim within ten (10) days of becoming aware thereof. In the event that the Company desires the claim to be contested, it shall promptly (but in no event more than thirty (30) days after the notice from the Executive or such shorter time as the Taxing Authority may

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specify for responding to such claim) request the Executive contest the claim. The Executive shall not make any payment of any tax which is subject of the claim before the Executive has given the notice or during the thirty (30) day period thereafter unless the Executive receives written instructions from the Company to make such payment together with an advance of funds sufficient to make the requested payment plus any amounts payable under this paragraph 9 determined as if such advance were an Excise Tax, in which case the Executive will act promptly in accordance with such instructions.

                           (2)   If the Company so requests, the Executive will contest the claim by either paying the tax claimed and suing for a refund in the appropriate court or contesting the claim in the United States Tax Court or other appropriate court, as directed by the Company; provided, however, that any request by the Company for the Executive to pay the tax shall be accompanied by an advance from the Company to the Executive of funds sufficient to make the requested payment plus any amounts payable under this paragraph 9 determined as if such advance were an Excise Tax. If directed by the Company in writing, the Executive will take all action necessary to compromise or settle the claim, but in no event will the Executive compromise or settle the claim or cease to contest the claim without the written consent of the Company; provided, however, that the Executive may take any such action if the Executive waives in writing his or her right to a payment under this paragraph 9 for any amounts payable in connection with such claim. The Executive agrees to cooperate in good faith with the Company in contesting the claim and to comply with any reasonable request from the Company concerning the contest of the claim, including the pursuit of administrative remedies, the appropriate forum for any judicial proceedings, and the legal basis for contesting the claim. Upon request of the Company, the Executive shall take appropriate appeals of any judgment or decision that would require the Company to make a payment under this paragraph 9. Provided that the Executive is in compliance with the provisions of this paragraph, the Company shall be liable for and indemnify the Executive against any loss in connection with, and all costs and expenses, including attorneys’ fees, which may be incurred as a result of, contesting the claim, and shall provide to the Executive, within ten (10) days after each written request therefor by the Executive, cash advances or reimbursement for all such costs and expenses actually incurred or reasonably expected to be incurred by the Executive as a result of contesting the claim.

                  f.   Should a Tax Authority finally determine that an additional Excise Tax is owed, then the Company shall pay an additional Make-Whole Amount to the Executive in a manner consistent with this paragraph 9 with respect to any additional Excise Tax and any assessed interest, fines, or penalties. If any Excise Tax as calculated by the Company or Tax Counsel, as the case may be, is finally determined by a Tax Authority to exceed the amount required to be paid under applicable law, then the Executive shall repay such excess to the Company within thirty (30) days of such determination; provided that such repayment shall be reduced by the amount of any taxes paid by the Executive on such excess which is not offset by the tax benefit attributable to the repayment.

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         10.      Outplacement Services. If the Executive’s Termination occurs during the Employment Period, the Company shall provide to the Executive, at the Executive’s election, outplacement services of an experienced firm, selected by the Company and acceptable to the Executive, located not more than thirty miles from the location of Executive’s office immediately prior to the Employment Period, provided that the cost of such services shall not exceed $30,000 and such services shall not extend beyond six (6) months from the date of Executive’s Termination.

         11.      Deductions and Withholding. All payments to the Executive under this Agreement will be subject to applicable deductions and withholding of state and federal taxes.

         12.      Confidentiality, Non-Solicitation and Non-Competition. The Executive agrees that:

                  a.   Except as may be required by the lawful order of a court or agency of competent jurisdiction, or except to the extent that the Executive has the express written authorization from the Company, the Executive agrees to keep secret and confidential for a period of two years following the termination of Executive’s employmentall non-public information concerning the Company or any entity in which the Company has a 25% or greater ownership interest (“Company-Related Entity”) which was acquired by or disclosed to Executive during the course of Executive’s employment with the Company or any Company-Related Entity controlled by the Company, and not to disclose the same, either directly or indirectly, to any other person, firm or business entity or to use it in any way.

                  b.   While the Executive is employed by the Company or Company-Related Entity and for a period of one year after the date of the Executive terminates employment for any reason, the Executive covenants and agrees that Executive will not, whether for Executive or for any other person, business, partnership, association, firm, company or corporation, initiate contact with, solicit, divert or take away any of the customers (entities or individuals from which the Company or any Company-Related Entity receives rents or payments for services) of the Company or any Company-Related Entity or employees of the Company or any Company-Related Entity in existence from time to time during Executive’s employment with the Company or any Company-Related Entity and at the time of such initiation, solicitation or diversion.

                  c.   While the Executive is employed by the Company or any Company- Related Entity, the Executive covenants and agrees that Executive will not, directly or indirectly, engage in, assist, perform services for, plan for, establish or open, or have any financial interest (other than (i) ownership of 1% or less of the outstanding stock of any corporation listed on the New York or American Stock Exchange or included in the National Association of Securities Dealers Automated Quotation System, or (ii) ownership of securities in any entity affiliated with the Company) in any person, firm, corporation, or business entity (whether as an employee, officer, director or

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consultant) that engages primarily in the refined petroleum product terminaling, pipeline transportation or logistical services business.

         13.      Dispute Resolution.

                  a.   Executive and Company agree that in the event of any controversy or claim arising out of this Agreement, they shall negotiate in good faith to resolve the controversy or claim privately, amicably and confidentially. Each party may consult with counsel in connection with such negotiations.

                  b.   In the event that such controversy or claim cannot be resolved through such good-faith negotiations, the disputing party may proceed to initiate litigation within thirty (30) days from the date of commencement of such negotiations. In such event, the Company agrees to pay as incurred, to the full extent permitted by law, all legal fees and expenses which the Executive may reasonably incur as a result of any contest (regardless of the outcome thereof, but not in the case of fees incurred with respect to a claim brought in bad faith by the Executive) initiated by the Company, the Executive or others regarding the validity or enforceability of, or liability under, any provision of this Agreement or any guarantee of performance thereof (including as a result of any contest by the Executive with respect to the amount of any payment pursuant to this Agreement), plus in each case, interest on any delayed payment at the applicable Federal rate provided for in Section 7872(f)(2)(A) of the Code.

         14.      Mitigation and Set-Off. The Executive shall not be required to mitigate the amount of any payment provided for in this Agreement by seeking other employment or otherwise. The Company shall not be entitled to set-off against the amounts payable to the Executive under this Agreement any amounts owed to the Company by the Executive, or any amounts earned, or which could have been earned, by the Executive after the date of Termination of Executive’s employment with the Company.

         15.      Miscellaneous Provisions.

                  a.   Notice. Except as otherwise specifically provided in this Agreement, any notices, requests, demands or other communications provided for by this Agreement shall be sufficient if in writing and if sent by telecopy or facsimile transmission or by hand delivery or registered, certified, or overnight mail to the Executive at the last address Executive has filed in writing with the Company or, in the case of the Company, to the attention of the Secretary of the Company, at its principal executive offices. Such notices and communications shall be deemed to have been received on the date of confirmation of receipt, in the case of telecopy or facsimile transmission, or upon the date of delivery thereof or the fifth (5th) business day after the mailing thereof, whichever is earlier, in the case of the remaining delivery methods.

                           Any Termination by the Company for Cause, or by the Executive for Good Reason, shall be communicated by “Notice of Termination” to the other party hereto given in accordance with the procedures above referenced. For the purposes of

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this Agreement, a “Notice of Termination” means a written notice which (i) indicates the specific Termination provision in this Agreement relied upon, (ii) to the extent applicable, sets forth in reasonable detail the facts and circumstances claimed to provide a basis for the Executive’s Termination under the provision so indicated, and (iii) if the date of Termination is other than the date of receipt of such Notice of Termination, specifies the date of Termination, which date shall not be more than thirty (30) days after the giving of such notice. The failure by the Executive or the Company to set forth in the Notice of Termination any fact or circumstance which contributes to a showing of Good Reason or Cause shall not waive any right of the Executive or the Company, as the case may be, hereunder or preclude the Executive or the Company, respectively, from asserting such fact or circumstance in enforcing the Executive’s or the Company’s rights hereunder.

                  b.   Binding Effect; Assignment. This Agreement shall inure to the benefit of, and shall be binding upon, the parties hereto and their respective successors, assigns, heirs, and legal representatives. This Agreement may not be assigned by Executive, nor may Executive assign or pledge any of his or her rights, including rights to payment, hereunder.

                  c.   Governing Law. The provisions of this Agreement shall be construed in accordance with the laws of the State of Colorado, without application of conflict of laws provisions thereunder.

                  d.   Successors to the Company. The Company shall require any successor, whether direct or indirect, by purchase, merger, consolidation or otherwise, and whether to all or substantially all of the business and/or assets of the Company, to assume and to expressly perform the obligations of this Agreement in the same manner and to the same extent that the Company would be required to perform it if no such succession had taken place. As used in this Agreement, “Company” shall mean the Company as hereinbefore defined and any successor to its business and/or assets as aforesaid which assumes and agrees to perform this Agreement by operation of law or otherwise. Such assumption shall be by an express agreement signed by both the successor Company and the Executive and shall be reasonably satisfactory to the Executive. If the Company fails to obtain such an express assumption, that shall be a breach of this Agreement and shall entitle the Executive to the same benefits and compensation as he or she would be entitled to if the Employment Period was terminated under paragraph 5.

                  e.   Employment Status. Nothing in this Agreement shall be deemed to create an employment agreement between the Company and the Executive providing for the employment of the Executive by the Company for any fixed period of time, other than as provided in paragraphs 1 and 2. The Executive’s employment is terminable at-will by the Company or the Executive, meaning that either party may terminate the employment relationship at any time, with or without cause, subject to the provisions of paragraphs 1, 2, and 5. Upon termination of the Executive’s employment prior to the

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date of a threatened Change in Control, there shall be no further rights under this Agreement.

                  f.   Entire Agreement. This Agreement contains the entire agreement between the parties hereto and supersedes all prior agreements and understandings, oral or written, between the parties hereto concerning its subject matter, with respect to the subject matter hereof.

                  g.   Amendments and Waivers. This Agreement may not be modified or amended except by an instrument or instruments in writing signed by the party against whom enforcement or any such modification or amendment is sought. Either party hereto may, by an instrument in writing, waive compliance by the other party with any term or provision of this Agreement on the part of such other party hereto to be performed or complied with. The waiver by any party hereto of a breach of any term or provision of this Agreement shall not be construed as a waiver of any subsequent breach.

                  h.   Construction Headings in this Agreement are for convenience only and shall not control the meaning of this Agreement. Whenever applicable, masculine and neutral pronouns shall equally apply to the feminine genders; the singular shall include the plural and the plural shall include the singular. The parties have reviewed and understand this Agreement, and each has had a full opportunity to negotiate the Agreement’s terms and to consult with counsel of their own choosing. Therefore, the parties expressly waive all applicable common law and statutory rules of construction that any provision of this Agreement should be construed against the Agreement’s drafter, and agree that this Agreement and all amendments thereto shall be construed as a whole, according to the fair meaning of the language used.

                  i.   Severability. In the event that any provision or portion of this Agreement shall be determined to be invalid or unenforceable for any reason, the remaining provisions of this Agreement shall be unaffected thereby and shall remain in full force and effect.

                  j.   Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same agreement.

         IN WITNESS WHEREOF, the Executive has hereunto set his or her hand and, pursuant to the authorization from its Board of Directors, the Company has caused these presents to be executed in its name and on its behalf, all as of the day and year first above written.

TransMontaigne Inc. Harold R. Logan, Jr.

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/s/ DONALD H. ANDERSON	/s/ HAROLD R. LOGAN,JR.
Donald H. Anderson, President Date: April 12, 2001	Date: April 16, 2001

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EX-10.6

Exhibit 10.6

CONFIDENTIAL

CHANGE IN CONTROL AGREEMENT

         This Agreement is between TransMontaigne Inc. (“Company”), and Randall J. Larson (the “Executive”), and shall be effective as of May 1, 2002 (the “Effective Date”).

         WHEREAS the Board of Directors of the Company (the “Board”) has determined that it is in the best interests of the Company and its stockholders to assure that the Company will have the continued dedication of the Executive notwithstanding the possibility, threat or occurrence of a Change of Control (as defined in this Agreement) of the Company; and

         WHEREAS, the Board has further determined that in order to diminish the distraction of the Executive attributable to the uncertainties and risks created by a pending or threatened Change of Control and in order to encourage the Executive’s full attention and dedication to the Company both currently and in the event of any threatened or pending Change in Control, it is appropriate to provide the Executive with compensation and benefits upon the occurrence of a Change in Control which ensure that the compensation and benefits expectations of the Executive will be met and which are competitive with those of other corporations; and

         WHEREAS in order to accomplish these objectives, the Company and the Executive accordingly desire to enter into this Agreement on the terms and conditions set forth below;

         NOW, THEREFORE, in consideration of the promises and mutual covenants set forth herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:

         1.       Term of Agreement. The term of this Agreement (the “Term”) shall commence on the Effective Date and shall continue until the third anniversary thereof; provided, however, that on such anniversary date and on each subsequent anniversary of the Effective Date, the term of this Agreement shall automatically be extended for one additional year unless, not later than ninety (90) days prior to such anniversary date, either party shall have given notice that such party does not wish to extend the Term; and provided, further, that if an actual or threatened Change in Control (as defined in paragraph 3 below) shall have occurred during the original or any extended Term of this Agreement, then the Term of this Agreement shall continue for a period of twenty-four (24) calendar months beyond the calendar month in which such actual or threatened Change in Control occurs.

         2         Employment After Change in Control. If the Executive is in the employ of the Company on the date of an actual or threatened Change in Control, the Company shall continue Executive in its employ for the period commencing on the date of the

actual Change in Control and ending on the last day of the Term of this Agreement (the “Employment Period”). During the Employment Period, the Executive shall hold such position with the Company and exercise such authority and perform such duties as are substantially commensurate with the Executive’s position, authority and duties immediately prior to the threatened or actual Change in Control. The Executive agrees that, during the Employment Period, the Executive shall devote his full professional time and attention to the Executive’s duties and perform such duties faithfully and efficiently.

                  Notwithstanding anything in this Agreement to the contrary, if a Change in Control occurs and if the Executive’s employment with the Company is terminated prior to the date on which the Change in Control occurs, and if it is reasonably demonstrated by the Executive that such termination of employment (i) was at the request of a third party who has taken steps reasonably calculated to effect a Change in Control, or (ii) otherwise arose in connection with or anticipation of a Change in Control, then for all purposes of this Agreement, the “Employment Period” shall mean the date immediately prior to the date of such termination of employment.

         3.       Change in Control. For purposes of this Agreement, an actual “Change in Control” shall be deemed to have occurred if upon the occurrence of any of the following:

                  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

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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.

                  For the purposes of this Agreement, a “threatened Change in Control” means the determination by the Board, in the exercise of its reasonable business judgment, that a third person has taken steps to effect an actual Change in Control and that such actual Change of Control could occur within ninety (90) days after such determination.

         4.       Compensation During the Employment Period. During the Employment Period, the Executive shall be compensated as follows:

                  a.   the Executive shall receive an annual salary which is not less than his annual salary immediately prior to the Employment Period and shall be eligible to receive an increase in annual salary which is not less favorable than increases in salary for the Company’s other executives with similar responsibilities and performance levels;

                  b.   the Executive shall be eligible to participate in short-term and long-term cash-based incentive compensation plans which, in the aggregate, provide bonus opportunities that are not less favorable to the Executive than the greater of (i) the opportunities provided to the Company’s other executives with similar responsibilities and performance levels and, (ii) the opportunities provided to the Executive under all such plans in which the Executive was participating prior to the Employment Period;

                  c.   the Executive shall be eligible to participate in stock option, performance awards, restricted stock and other equity-based incentive compensation plans (the “Plans”) on a basis not less favorable to the Executive than the greater of the Plans available (i) to the Executive immediately prior to the Employment Period, or (ii) to other executives of the Company with similar responsibilities and performance levels; and,

                  d.   the Executive shall be eligible to receive employee benefits (including, but not limited to, tax-qualified and non-qualified savings plan benefits, medical insurance, disability income protection, life insurance coverage and death benefits) and perquisites which are not less favorable to the Executive than (i) the employee benefits and perquisites provided to the Company’s other executives, or (ii) the employee benefits and perquisites to which the Executive would be entitled under the Company’s employee benefit plans and perquisites as in effect immediately prior to the Employment Period.

         5.       Termination. For purposes of this Agreement, “Termination” shall mean termination of the employment of the Executive during the Employment Period (i) by the Company, for any reason other than death or Cause (as defined below), or (ii) by resignation of the Executive for Good Reason. For the purposes of this Agreement, “Good Reason” shall include, but not be limited to, any of the following events:

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                  a.   the assignment to the Executive by the Company of duties inconsistent with, or a substantial alteration in the nature or status of, the Executive’s responsibilities immediately prior to a Change in Control;

                  b.   a reduction by the Company in the Executive’s compensation or benefits as in effect on the date of a Change in Control;

                  c.   a relocation of the Company’s principal offices to a location outside the Denver, Colorado metropolitan area, or the Executive’s relocation to any place other than the Denver, Colorado offices of the Company, except for reasonably required travel by the Executive on the Company’s business;

                  d.   any material breach by the Company of any provision of this Agreement, if such material breach has not been cured within thirty (30) days following written notice of such breach by the Executive to the Company setting forth the nature of the breach; or

                  e.   any failure by the Company to obtain the assumption and performance of this Agreement by any successor (by merger, consolidation or otherwise) or assign by the Company in accordance with paragraph 15(d) of this Agreement.

                  The date of the Executive’s Termination under this paragraph 5 shall be the date specified by the Executive or the Company, as the case may be, in a written notice to the other party complying with the requirements of paragraph 15(a) below. For purposes of this Agreement, “Cause” shall mean

                           (1)   the Executive’s material breach of the terms of this Agreement, if such material breach has not been substantially cured within thirty (30) days following written notice to the Executive from the Company of such breach setting forth with specificity the nature of the violation or, if cure cannot reasonably be effected within such 30-day period, if the Executive does not commence such cure within such 30-day period and thereafter pursue such cure continuously and with due diligence until cure has been effected;

                           (2)   the Executive’s willful dishonesty towards, fraud upon, felony crime against, deliberate material injury or material bad faith action with respect to, or deliberate or attempted injury to the Company; or

                           (3)   the Executive’s conviction for any felony crime (whether in connection with the Company’s affairs or otherwise).

         6.       Severance Payments. Subject to the provisions of paragraph 9 below, in the event of a Termination described in paragraph 5 above:

                  a.   the Company shall pay the Executive’s unpaid salary, accrued vacation pay and unreimbursed business expenses through and including the date of Termination; and

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                  b.   in addition, following Executive’s execution of a legal release in a form satisfactory to Company in its sole discretion reasonably exercised and drafted so as to ensure a final, complete and enforceable release of all claims that Executive has or may have against Company relating to or arising in any way from Executive’s employment with Company and/or the termination thereof, and complete and continuing confidentiality of Company’s proprietary information and trade secrets, the circumstances of Executive’s separation from Company, and compensation received by Executive in connection with that separation, in lieu of the amount otherwise payable under paragraph 4 above, the Executive shall continue to receive, at the Company’s expense, medical insurance, disability income protection, life insurance coverage and death benefits, and perquisites in accordance with subparagraph 4(d) above for a period of twenty-four (24) months after the date of Termination (under COBRA or through an individual conversion policy, as appropriate), or until Executive becomes eligible for comparable benefits under benefit plans sponsored by another employer, and shall also be entitled to a lump sum payment in cash no later than ten (10) business days after the date of Termination equal to the sum of:

                           (1)   an amount equal to two (2 times the Executive’s annual salary rate plus two (2) times target bonus award in effect immediately prior to the date of Termination, plus

                           (2)   an amount equal to the assigned target bonus for the Executive for the year of Termination prorated through the date of Termination.

         7.       Deferred Compensation Plans.

                  a.   For purposes of this paragraph, “deferred compensation plans” shall mean all non-qualified deferred compensation plans presently maintained by the Company or adopted in the future by the Company. If an actual or threatened Change in Control occurs during the original or any extended Term of this Agreement, the Company shall, within thirty (30) days after the earlier of the date of such threatened Change in Control or the date of such actual Change in Control, establish a “rabbi trust” and transfer to such “rabbi trust” an amount of cash sufficient to provide all benefits accrued by the Executive under all deferred compensation plans. Thereafter, the Company will, at least quarterly, transfer to the “rabbi trust” an amount of cash sufficient to provide any additional benefits accrued by the Executive under all deferred compensation plans.

                  b   In the event of a Termination as set forth in paragraph 5 above: (a) all of the Executive’s benefits, including, without limitation, matching contributions, under all deferred compensation plans shall be 100% vested, regardless of the Executive’s years of service with the Company and regardless of any vesting provisions of such deferred compensation plans; (b) the Executive will be entitled to all benefits, including, without limitation, matching contributions, under all deferred compensation plans for the year in which such Termination occurs, regardless of any provision in any

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such deferred compensation plan making such benefits contingent upon employment for a particular portion of the year or as of a particular day in that year or making such benefits contingent upon accrual of a specific number of hours, days, weeks, or months of service during that year.

                  c.   The provisions of paragraph 7(b) apply only in the event of a “Termination” as defined in paragraph 5. Under paragraph 5, the term “Termination” means termination of employment of the Executive during the “Employment Period.” Under paragraph 2, the “Employment Period” commences on the date of an actual Change in Control. Therefore, the provisions of paragraph 7(b) do not apply in the case of a termination of employment of the Executive unless such termination of employment of the Executive occurs on or after the date of an actual Change in Control and unless such termination of employment of the Executive also meets the other requirements of the definition of the term “Termination” set forth in paragraph 5.

         8.       Stock Based Awards. In the event of a Termination as set forth in paragraph 5 above, the restrictions on any outstanding stock-based awards (including, without limitation, non-qualified stock options, incentive stock options and restricted stock) granted to Executive under any incentive plan or arrangement shall lapse and such stock-based awards shall become 100% vested, and all stock options and stock appreciation rights granted to Executive shall become immediately exercisable. Notwithstanding anything to the contrary in the Executive’s stock option agreements with the Company, all such stock options shall be exercisable for a period of twelve (12) months after the date of Termination (but in no event beyond the expiration date applicable to such stock options)

         9.       Make-Whole Payments. If any payment or benefit to which the Executive is entitled, whether under this Agreement or otherwise, in connection with a Change in Control or the Executive’s Termination (a “Payment”) is subject to any tax under section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), or any similar federal or state law (an “Excise Tax”), the Company shall pay to the Executive an additional amount (the “Make-Whole Amount”) which is equal to (i) the amount of the Excise Tax, plus (ii) the aggregate amount of any interest, penalties, fines or additions to any tax that are imposed in connection with such Excise Tax, plus (iii) all income, excise and other applicable taxes imposed on the Executive under the laws of any federal, state or local government or taxing authority by reason of the payments required under clause (i), clause (ii) and this clause (iii). Notwithstanding any other provisions of this Agreement, however, such Make-Whole Amount will not be paid to the Executive if the Payment is less than ten (10) percent above the maximum amount that may be paid without incurring Excise Tax; and in such event, the cash severance payments provided in paragraph 6 above and/or the outplacement services provided in paragraph 10 below, at the Executive’s election, shall be reduced to a level that results in the total Payment being equal to the maximum amount that may be paid without incurring Excise Tax.

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                  a.   For purposes of determining the Make-Whole Amount, the Executive shall be deemed to be taxed at the highest marginal rate under all applicable local, state, federal and foreign income tax laws for the year in which the Make-Whole Amount is paid. The Make-Whole Amount payable with respect to an Excise Tax shall be paid by the Company coincident with the Payment with respect to which such Excise Tax relates.

                  b.   All calculations under this paragraph 9 shall be made initially by the Company and the Company shall provide prompt written notice thereof to the Executive to enable the Executive to timely file all applicable tax returns. Upon request of the Executive, the Company shall provide the Executive with sufficient tax and compensation data to enable the Executive or his tax advisor to independently make the calculations described in subparagraph (a) above and the Company shall reimburse the Executive for reasonable fees and expenses incurred for any such verification.

                  c.   If the Executive gives written notice to the Company of any objection to the results of the Company’s calculations within sixty (60) days of the Executive’s receipt of written notice thereof, the dispute shall be referred for determination to tax counsel selected by the independent auditors of the Company (“Tax Counsel”). The Company shall pay all reasonable fees and expenses of such Tax Counsel. Pending such determination by Tax Counsel, the Company shall pay the Executive the Make-Whole Amount as determined by the Company in good faith. The Company shall pay the Executive any additional amount determined by Tax Counsel to be due under this paragraph 9 (together with interest thereon at a rate equal to 120% of the Federal short-term rate compounded dailydetermined under section 1274(d) of the Code) promptly after such determination.

                  d.   The determination by Tax Counsel shall be conclusive and binding upon all parties unless the Internal Revenue Service, a court of competent jurisdiction, or such other duly empowered governmental body or agency (a “Tax Authority”) determines that the Executive owes a greater or lesser amount of Excise Tax with respect to any Payment than the amount determined by Tax Counsel.

                  e.   If a Tax Authority makes a claim against the Executive which, if successful, would require the Company to make a payment under this paragraph 9, the Executive agrees to contest the claim, with counsel reasonably satisfactory to the Company, on request of the Company, subject to the following conditions:

                           (1)   The Executive shall notify the Company of any such claim within ten (10) days of becoming aware thereof. In the event that the Company desires the claim to be contested, it shall promptly (but in no event more than thirty (30) days after the notice from the Executive, or such shorter time as the Tax Authority may specify for responding to such claim) request that the Executive contest the claim. The Executive shall not make any payment of any tax which is the subject of the claim before the Executive has given the notice, or during the thirty (30) day period thereafter, unless the Executive receives written instructions from the Company to make such

7

payment together with an advance of funds sufficient to make the requested payment, plus any amounts payable under this paragraph 9 determined as if such advance were an Excise Tax, in which case the Executive will act promptly in accordance with such instructions.

                           (2)   If the Company so requests, the Executive will contest the claim by either paying the tax claimed and suing for a refund in the appropriate court, or by contesting the claim in the United States Tax Court or other appropriate court, as directed by the Company; provided, however, that any request by the Company for the Executive to pay the tax shall be accompanied by an advance from the Company to the Executive of funds sufficient to make the requested payment, plus any amounts payable under this paragraph 9 determined as if such advance were an Excise Tax. If directed by the Company in writing, the Executive will take all action necessary to compromise or settle the claim, but in no event will the Executive compromise or settle the claim or cease to contest the claim without the written consent of the Company; provided, however, that the Executive may take any such action if the Executive waives in writing his right to a payment under this paragraph 9 for any amounts payable in connection with such claim. The Executive agrees to cooperate in good faith with the Company in contesting the claim and to comply with any reasonable request from the Company concerning the contest of the claim, including the pursuit of administrative remedies, the appropriate forum for any judicial proceedings, and the legal basis for contesting the claim. Upon request of the Company, the Executive shall take appropriate appeals of any judgment or decision that would require the Company to make a payment under this paragraph 9. Provided that the Executive is in compliance with the provisions of this paragraph, the Company shall be liable for and indemnify the Executive against any loss in connection with, and all costs and expenses, including attorneys’ fees, which may be incurred as a result of, contesting the claim, and shall provide to the Executive, within ten (10) days after each written request therefor by the Executive, cash advances or reimbursement for all such costs and expenses actually incurred or reasonably expected to be incurred by the Executive as a result of contesting the claim.

                  f.   Should a Tax Authority finally determine that an additional Excise Tax is owed, then the Company shall pay an additional Make-Whole Amount to the Executive in a manner consistent with this paragraph 9 with respect to any additional Excise Tax and any assessed interest, fines or penalties. If any Excise Tax as calculated by the Company or Tax Counsel, as the case may be, is finally determined by a Tax Authority to exceed the amount required to be paid under applicable law, then the Executive shall repay such excess to the Company within thirty (30) days of such determination, provided that such repayment shall be reduced by the amount of any taxes paid by the Executive on such excess which is not offset by the tax benefit attributable to the repayment.

         10.      Outplacement Services. If the Executive’s Termination occurs during the Employment Period, the Company shall provide to the Executive, at the Executive’s election, outplacement services of an experienced firm, selected by the Company and acceptable to the Executive, located not more than thirty (30) miles from the location of

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Executive’s office immediately prior to the Employment Period, provided that the cost of such services shall not exceed $30,000 and such services shall not extend beyond six (6) months from the date of Executive’s Termination.

         11.      Deductions and Withholding. All payments to the Executive under this Agreement will be subject to applicable deductions and withholding of state and federal taxes.

         12.      Confidentiality, Non-Solicitation and Non-Competition. The Executive agrees that:

                  a.   Except as may be required by the lawful order of a court or agency of competent jurisdiction, or except to the extent that the Executive has the express written authorization from the Company, the Executive agrees to keep secret and confidential for a period of two (2) years following the Executive’s termination of employmentall non-public information concerning the Company, or any entity in which the Company has a 25% or greater ownership interest (“Company-Related Entity”) which was acquired by or disclosed to the Executive during the course of the Executive’s employment with the Company, or any Company-Related Entity controlled by the Company, and not to disclose the same, either directly or indirectly, to any other person, firm or business entity or to use it in any way.

                  b.   While the Executive is employed by the Company or Company-Related Entity and for a period of one (1) year after the date of the Executive’s termination of employment for any reason, the Executive covenants and agrees that Executive will not, whether for Executive or for any other person, business, partnership, association, firm, company or corporation, initiate contact with, solicit, divert or take away any of the customers (entities or individuals from which the Company or any Company-Related Entity receives rents or payments for services) of the Company or any Company-Related Entity, or employees of the Company or any Company-Related Entity in existence from time to time during Executive’s employment with the Company or any Company-Related Entity and at the time of such initiation, solicitation or diversion.

                  c.   While the Executive is employed by the Company or any Company-Related Entity, the Executive covenants and agrees that Executive will not, directly or indirectly, engage in, assist, perform services for, plan for, establish or open, or have any financial interest (other than (i) ownership of 1% or less of the outstanding stock of any corporation listed on the New York or American Stock Exchange or included in the National Association of Securities Dealers Automated Quotation System, or (ii) ownership of securities in any entity affiliated with the Company) in any person, firm, corporation, or business entity (whether as an employee, officer, director or consultant) that engages primarily in the refined petroleum product terminaling, pipeline transportation or logistical services business.

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         13.      Dispute Resolution.

                  a.   The Executive and the Company agree that in the event of any controversy or claim arising out of this Agreement, they shall negotiate in good faith to resolve the controversy or claim privately, amicably and confidentially. Each party may consult with counsel in connection with such negotiations.

                  b.   In the event that such controversy or claim cannot be resolved through such good faith negotiations, the disputing party may proceed to initiate litigation within thirty (30) days from the date of commencement of such negotiations. In such event, the Company agrees to pay as incurred, to the full extent permitted by law, all legal fees and expenses which the Executive may reasonably incur as a result of any contest (regardless of the outcome thereof, but not in the case of fees incurred with respect to a claim brought in bad faith by the Executive) initiated by the Company, the Executive or others regarding the validity or enforceability of, or liability under, any provision of this Agreement or any guarantee of performance thereof (including as a result of any contest by the Executive with respect to the amount of any payment pursuant to this Agreement), plus in each case, interest on any delayed payment at the applicable Federal rate provided for in Section 7872(f)(2)(A) of the Code.

         14.      Mitigation and Set-Off. The Executive shall not be required to mitigate the amount of any payment provided for in this Agreement by seeking other employment or otherwise. The Company shall not be entitled to set-off against the amounts payable to the Executive under this Agreement any amounts owed to the Company by the Executive, or any amounts earned, or which could have been earned, by the Executive after the date of Executive’s Termination.

         15.      Miscellaneous Provisions.

                  a.   Notice. Except as otherwise specifically provided in this Agreement, any notices, requests, demands or other communications provided for by this Agreement shall be sufficient if in writing and if sent by telecopy or facsimile transmission or by hand delivery or registered, certified, or overnight mail to the Executive at the last address the Executive has filed in writing with the Company or, in the case of the Company, to the attention of the Secretary of the Company, at its principal executive offices. Such notices and communications shall be deemed to have been received on the date of confirmation of receipt, in the case of telecopy or facsimile transmission, or upon the date of delivery thereof or the fifth (5th) business day after the mailing thereof, whichever is earlier, in the case of the remaining delivery methods.

                           Any Termination by the Company for Cause, or by the Executive for Good Reason, shall be communicated by “Notice of Termination” to the other party hereto given in accordance with the procedures above referenced. For the purposes of this Agreement, a “Notice of Termination” means a written notice which (i) indicates the specific Termination provision in this Agreement relied upon, (ii) to the extent applicable, sets forth in reasonable detail the facts and circumstances claimed to provide

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a basis for the Executive’s Termination under the provision so indicated, and (iii) if the date of Termination is other than the date of receipt of such Notice of Termination, specifies the date of Termination, which date shall not be more than thirty (30) days after the giving of such notice. The failure by the Executive or the Company to set forth in the Notice of Termination any fact or circumstance which contributes to a showing of Good Reason or Cause shall not waive any right of the Executive or the Company, as the case may be, hereunder or preclude the Executive or the Company, respectively, from asserting such fact or circumstance in enforcing the Executive’s or the Company’s rights hereunder.

                  b.   Binding Effect; Assignment. This Agreement shall inure to the benefit of, and shall be binding upon, the parties hereto and their respective successors, assigns, heirs, and legal representatives. This Agreement may not be assigned by the Executive, nor may the Executive assign or pledge any of his rights, including rights to payment, hereunder.

                  c.   Governing Law. The provisions of this Agreement shall be construed in accordance with the laws of the State of Colorado, without application of conflict of laws provisions thereunder.

                  d.   Successors to the Company. The Company shall require any successor, whether direct or indirect, by purchase, merger, consolidation or otherwise, and whether to all or substantially all of the business and/or assets of the Company, to assume and to expressly perform the obligations of this Agreement in the same manner and to the same extent that the Company would be required to perform it if no such succession had taken place. As used in this Agreement, “Company” shall mean the Company as hereinbefore defined and any successor to its business and/or assets as aforesaid which assumes and agrees to perform this Agreement by operation of law or otherwise. Such assumption shall be by an express agreement signed by both the successor Company and the Executive and shall be reasonably satisfactory to the Executive. If the Company fails to obtain such an express assumption, that shall be a breach of this Agreement and shall entitle the Executive to the same benefits and compensation as he would be entitled to if the Employment Period was terminated under paragraph 5.

                  e.   Employment Status. Nothing in this Agreement shall be deemed to create an employment agreement between the Company and the Executive providing for the employment of the Executive by the Company for any fixed period of time, other than as provided in paragraphs 1 and 2. The Executive’s employment is terminable at-will by the Company or the Executive, meaning that either party may terminate the employment relationship at any time, with or without cause, subject to the provisions of paragraphs 1, 2, and 5. Upon termination of the Executive’s employment prior to the date of a threatened Change in Control, there shall be no further rights under this Agreement.

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                  f.   Entire Agreement. This Agreement contains the entire agreement between the parties hereto and supersedes all prior agreements and understandings, oral or written, between the parties hereto concerning its subject matter, with respect to the subject matter hereof.

                  g.   Amendments and Waivers. This Agreement may not be modified or amended except by an instrument or instruments in writing signed by the party against whom enforcement or any such modification or amendment is sought. Either party hereto may, by an instrument in writing, waive compliance by the other party with any term or provision of this Agreement on the part of such other party hereto to be performed or complied with. The waiver by any party hereto of a breach of any term or provision of this Agreement shall not be construed as a waiver of any subsequent breach.

                  h.   Construction. Headings in this Agreement are for convenience only and shall not control the meaning of this Agreement. Whenever applicable, masculine and neutral pronouns shall equally apply to the feminine genders; the singular shall include the plural and the plural shall include the singular. The parties have reviewed and understand this Agreement, and each has had a full opportunity to negotiate the Agreement’s terms and to consult with counsel of their own choosing. Therefore, the parties expressly waive all applicable common law and statutory rules of construction that any provision of this Agreement should be construed against the Agreement’s drafter, and agree that this Agreement and all amendments thereto shall be construed as a whole, according to the fair meaning of the language used.

                  i.   Severability. In the event that any provision or portion of this Agreement shall be determined to be invalid or unenforceable for any reason, the remaining provisions of this Agreement shall be unaffected thereby and shall remain in full force and effect.

                  j.   Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same Agreement.

         IN WITNESS WHEREOF, the Executive has hereunto set his hand and, pursuant to the authorization from its Board of Directors, the Company has caused these presents to be executed in its name and on its behalf, all as of the day and year first above written.

TransMontaigne Inc.	Randall J. Larson
/s/ DONALD H. ANDERSON	/s/ RANDALL J. LARSON
Donald H. Anderson, President Date: May 6, 2002	Date: May 6, 2002

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EX-99.1

EXHIBIT 99.1

CERTIFICATION PURSUANT TO
18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002

         In connection with the Quarterly Report of TransMontaigne Inc. (the “Company”) on Form 10-Q for the period ended September 30, 2002, as filed with the Securities and Exchange Commission on the date hereof (the “Report”), I, Donald H. Anderson, Chief Executive Officer of the Company, certify pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that, to my knowledge:

(1)	The Report fully complies with the requirements of section 13(a) or 15(d) of the Securities Exchange Act of 1934; and
(2)	The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.

/S/ DONALD H. ANDERSON

Donald H. Anderson
President, Chief Executive, Chief
       Operating Officer and Vice Chairman
November 14, 2002

EX-99.2

EXHIBIT 99.2

CERTIFICATION PURSUANT TO
18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002

         In connection with the Quarterly Report of TransMontaigne Inc. (the “Company”) on Form 10-Q for the period ended September 30, 2002, as filed with the Securities and Exchange Commission on the date hereof (the “Report”), I, Harold R. Logan, Jr., Chief Financial Officer of the Company, certify pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that, to my knowledge:

(1)	The Report fully complies with the requirements of section 13(a) or 15(d) of the Securities Exchange Act of 1934; and
(2)	The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.

/S/HAROLD R. LOGAN,JR.

Harold R. Logan, Jr.
Executive Vice President, Chief Financial
      Officer and Treasurer
November 14, 2002