Exhibit 4.1


 


AS OF THE DATE THIS CERTIFICATE WAS
ORIGINALLY ISSUED, THE SECURITIES REPRESENTED BY THIS CERTIFICATE AND THE
SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE OF SUCH SECURITIES HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE “SECURITIES ACT”), AS AMENDED,
OR ANY APPLICABLE STATE SECURITIES LAWS AND MAY NOT BE SOLD OR OTHERWISE
TRANSFERRED (WHETHER OR NOT FOR CONSIDERATION) EXCEPT PURSUANT TO (1) AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND THE RULES AND
REGULATIONS THEREUNDER AND APPLICABLE STATE SECURITIES LAWS OR (2) AN EXEMPTION
FROM SUCH REGISTRATION, THE AVAILABILITY OF WHICH, IF REQUESTED BY THE ISSUER,
SHALL BE THE SUBJECT OF AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE
ISSUER.


 


WARRANTS
TO PURCHASE COMMON STOCK

OF

TRANSMONTAIGNE INC.


 


	
  Issue Date: November 23,
  2004

  	
  Certificate
  No.: W–1

  
	
  Certificate for 5,500,000
  Warrants

  	
   

  



 


For value received,
TransMontaigne Inc., a Delaware corporation (the “Company”),
hereby grants to Morgan Stanley Capital Group Inc., its successors, transferees
and assigns (each, a “Holder”) the
number of Warrants set forth above (each, a “Warrant”).  Subject to the adjustments and on the terms
and conditions hereinafter set forth, each Warrant entitles the Holder thereof
to purchase from the Company, at
any time and from time to time on or after the earlier to occur of (a) March 1,
2005 and (b) the date immediately preceding the occurrence of a Reorganization
(as defined below) (the “Initial Exercise
Date”) through and including 5:00 p.m., Denver, Colorado time, on March
1, 2010 (the “Expiration Date”), one share (each, a “Warrant Share”) of common stock, par value $0.01 per share
of the Company (the “Common Stock”),
at the exercise price per Warrant equal to $6.60 (the “Warrant Price”).  The number and kind of Warrant Shares for
which a Warrant is exercisable and the Warrant Price shall be subject to
adjustment, from time to time, as set forth below.


 


Section 1.                                            Definitions.


 


(a)  “Affiliate”  means, with
respect to any specified entity, any other entity directly or indirectly
controlling, controlled by or under direct or indirect common control with such
specified entity. For the purposes of this definition, “control”
when used with respect to any specified entity means the power to direct the
management and policies of such entity, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled”
have meanings correlative to the foregoing. 
For purposes of this definition, the term “entity” includes a
corporation, partnership, limited partnership, limited liability company,
association, joint stock company, trust or joint venture, but not an individual
human being.


 





















 


(b)  “Certificate” means this certificate or any
other certificate, which from time to time may represent the outstanding
Warrants.


 


(c)  “Common Stock” has the meaning set
forth in the preamble hereto.


 


(d)  “Company” has the meaning set
forth in the preamble hereto.


 


(e)  “Current Market Price” at any date
(the “Computation Date”), with respect to any
security, shall mean the average of the Quoted Prices of such security for each
of the 20 consecutive trading days ending on the last trading day before the
Computation Date; provided, however, that if there shall have
occurred prior to the Computation Date any event described in Section 10.1 or
10.5 that shall have become effective with respect to market transactions at
any time (the “Market–Effect Date”) on or after
the beginning of such 20 trading day period, the last reported per share sales
price for each trading day preceding the Market–Effect Date shall be adjusted,
for purposes of calculating such average, to ensure that the effect of such
event on the market price of such security shall, as nearly as possible, be
eliminated in order that the distortion in the calculation of the Current
Market Price may be minimized.  In the
absence of one or more such quotations, the Company and the Holders shall
retain an Independent Financial Expert to determine on a good faith basis the
Current Market Price, which determination shall be conclusive and binding upon
the Company and each Holder, absent manifest error.


 


(f)  “Determination Date” means with respect to any security, (i)
the effective date with respect to a subdivision, combination or
reclassification of such security and (ii) the date on which such security
trades “ex–dividend”, “ex–distribution” or “ex–rights”, as applicable, with
respect to any dividend or other distribution to which Section 10 applies, on
the American Stock Exchange or, if such security is not then listed on the
American Stock Exchange, on the principal national or regional stock exchange
or market on which such security is then listed or quoted.


 


(g)  “Exchange Act” means the Securities
Exchange Act of 1934.


 


(h)  “Expiration Date” has the meaning
set forth in the preamble hereto.


 


(i)  “Extraordinary Cash Dividend” has the meaning set forth in
Section 10.1(b)(iii).


 


(j)  “Fully–Diluted Basis” means all outstanding shares of Common Stock,
plus all shares of Common Stock issuable upon exercise, conversion or exchange
of all options, warrants, stock purchase rights or similar securities
exercisable into, exchangeable for, or convertible into Common Stock,
including, without limitation, the Warrant Shares issuable upon exercise of the
Warrants.


 


(k)  “Holder” has the meaning set forth in the preamble hereto.


 


(l)  “HSR Act” means the Hart–Scott Rodino
Antitrust Improvements Act of 1976, as amended, and the rules and regulations
promulgated thereunder.


 


2





















 


(m)  “Initial
Exercise Date” has the meaning set forth in the preamble hereto.


 


(n)  “Institutional Investor Registration Rights
Agreement” means the Amended and Restated Institutional Investor Registration Rights Agreement, dated as of
June 27, 2002, by and among the Company and the entities listed on the
signature pages thereto, as amended from time to time.


 


(o)  “Independent Financial Expert” means a
financial expert mutually satisfactory to a majority of Holders and the Company
that does not (or whose directors or executive officers do not) have a direct
or indirect financial interest in the Company or any of its Affiliates, which
has not been for at least two years and, at the time it is called upon to
provide a valuation of any security pursuant to the terms hereof is not (and
none of its directors or executive officers is), a promoter, director, or
officer of the Company or any of its subsidiaries.  The Independent Financial Expert may be
compensated and indemnified by the Company for opinions or services that it
provides as an Independent Financial Expert.


 


(p)  “Lion
Oil” means the Lion Oil Company, an Arkansas corporation, in which
the Company owns a minority equity interest.


 


(q) “Product Supply Agreement”
means the Product Supply Agreement,
dated as of November 4, 2004, by and between the Company’s wholly–owned
subsidiary, TransMontaigne Product Services Inc., and Morgan Stanley Capital
Group Inc., as amended from time to time.


 


(r)  “Quoted Price” on any day, with respect to any security,
means the last reported per share sales price of such security (or, if no sales
prices are reported, the average of the low bid and high ask prices) on the
American Stock Exchange on such day or, in the event such security is not
listed on the American Stock Exchange, on the principal national or regional
stock exchange or market on which such security is then listed or quoted.  In the absence of one or more such
quotations, the Company and the Holders shall retain an Independent Financial
Expert to determine the Quoted Price, which determination shall be binding and
conclusive upon the Company and each Holder, absent manifest error.


 


(s)  “Registrable Securities” has the meaning set forth in Section
12.


 


(t)  “Registration Rights Agreement”
means the Registration Rights
Agreement, dated as of the date hereof, by and between the Company and Morgan
Stanley Capital Group Inc., as amended from time to time.


 


(u)  “Reorganization” has the meaning set forth in Section
10.5(a)(i).


 


(v)  “Securities Act” means the Securities Act of 1933, as
amended.


 


(w)  “Spread” means, with respect to
any security, the Quoted Price of such security less the Warrant Price as
adjusted pursuant to the terms hereof.


 


3





















 


(x)  “Warrant(s)” has the meaning set forth in the preamble
hereto.


 


(y)  “Warrant Price” has the meaning set forth in the preamble
hereto.


 


(z)  “Warrant Shares” has the meaning set forth in the preamble
hereto.


 


Section 2.                                            Transfer and Exchange.


 


Section 2.1  Transfer.  Subject to compliance with the terms hereof and of
applicable law, including the Securities Act, and the rules and regulations
promulgated thereunder and any applicable state securities laws, the Warrants
may be transferred in whole or part, at any time and from time to time upon
delivery of this Certificate, accompanied by a written instrument or
instruments of transfer in form reasonably acceptable to the Company, duly
executed by the Holder or by the duly appointed legal representative thereof or
by a duly authorized attorney; provided, that, so long as the Product Supply Agreement has
not been terminated or expired on its terms, this Certificate and the Warrants
represented hereby may not be transferred, directly or indirectly through
merger, sale of equity interests of a Holder or otherwise, to a transferee that
is not an Affiliate of Morgan Stanley Capital Group Inc.


 


Section 2.2  Exchange. At
any time and from time to time, this Certificate may be exchanged at the option
of the Holder for another Certificate or Certificates of like tenor and
representing in the aggregate the right to purchase, a like number of Warrant
Shares.  Such request must be in writing,
delivered to the Company, and be accompanied by this Certificate properly
endorsed at the principal office of the Company.  As soon as practicable and in any event
within five business days after a request in accordance with this Section 2.2,
the Company shall cancel this Certificate and cause to be delivered to the
Holder, without charge therefor, such new Certificate or Certificates of like
tenor and representing in the aggregate the right to purchase a like number of
Warrant Shares at the Warrant Price, in each case as adjusted pursuant to the
terms hereof.


 


Section 3.                                            Exercise
of Warrants.


 


(a)  Subject to the terms hereof, each Warrant may
be exercised at any time, and from time to time, in whole or in part, at the
option of the Holder, on or after the Initial Exercise Date through and
including the Expiration Date.  Each
Warrant shall initially be exercisable in whole or in part for one share of
Common Stock, for an exercise price per share equal to the Warrant Price, by
surrender of this Certificate at the principal office of the Company with the
form of election to purchase attached hereto duly completed, signed and
accompanied by payment in full of the aggregate Warrant Price for the Warrants
being exercised.  Payment of the Warrant
Price may be made by (i) wire transfer or certified or bank check payable to
the order of the Company in immediately available funds; (ii) exchanging
that number of shares of Common Stock equal to the result of (A) the product of
the Warrant Price multiplied by the number of Warrants being exercised, divided
by (B) the Quoted Price of the Common Stock on the date immediately preceding
the exercise date; (iii) surrendering to the Company for cancellation a number
of Warrants having an aggregate Spread (determined with reference to the Quoted
Price of the Common Stock on the date immediately preceding the exercise


 


4





















 


date) equal to the product
of the Warrant Price multiplied by the number of Warrants being exercised; or
(iv) any combination of the foregoing.


 


(b)  As promptly as practicable after the exercise
of any Warrant (or portion thereof), and in any event within five business days
thereafter, the Company shall issue and cause to be delivered to, the Holder or
such Holder’s nominee in such name or names as the Holder may designate, a
certificate or certificates for the number of full Warrant Shares to which such
Holder shall be entitled, together with cash, as provided in Section 10 hereof,
in lieu of any fraction of a Warrant Share otherwise issuable upon such
exercise.  If, at any time prior to the
Expiration Date, less than all of the Warrants represented by this Certificate
are exercised (or surrendered in connection with a payment pursuant to Section
3(a)(iii) hereof), a new Certificate evidencing the remaining Warrants shall be
issued by the Company and the Company shall cause such Certificate to be
delivered to the Holder, or its nominee(s), without charge therefor,
concurrently with the delivery of the Warrant Shares to the Holder pursuant to
this Section 3(b).


 


Section 4.                                            Investment
Intent; Restrictive Legends.  Neither the
Warrants nor the Warrant Shares
have been registered under the Securities Act, or state securities laws.  The Holder, by receipt and acceptance of this
Certificate and the Warrants represented hereby, represents and warrants that
the Warrants and the Warrant Shares are being acquired as an investment and not
with a view to the distribution thereof, and understands and acknowledges that
the Warrants and the Warrant Shares shall bear a restrictive legend
substantially as set forth below, until with respect to the Warrant Shares, the
effectiveness of a registration covering such shares:


 


“AS OF THE DATE THIS CERTIFICATE WAS
ORIGINALLY ISSUED THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, (THE “SECURITIES ACT”)
OR ANY APPLICABLE STATE SECURITIES LAWS AND MAY NOT BE SOLD OR OTHERWISE
TRANSFERRED (WHETHER OR NOT FOR CONSIDERATION) EXCEPT PURSUANT TO (1) AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND THE RULES AND REGULATIONS
THEREUNDER AND APPLICABLE STATE SECURITIES LAWS OR (2) AN EXEMPTION FROM SUCH
REGISTRATION, THE AVAILABILITY OF WHICH, IF REQUESTED BY THE ISSUER, SHALL BE
THE SUBJECT OF AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE ISSUER.”


 


Section 5.                                            Representations and Warranties
and Covenants of the Company


 


Section 5.1  Non–Contravention.
The Company represents and warrants to each Holder that the execution, delivery
and issuance of this Certificate and the Warrants represented hereby, the
Company’s performance of its obligations hereunder as of the date hereof, and
the issuance of the Warrant Shares, upon exercise and payment therefor at the
original Warrant Price of the Warrants, do not and will not, with or without
the giving of notice, the lapse of time or both,


 


(a)  contravene or conflict with the Company’s
Certificate of Incorporation or By–laws;


 


5





















 


(b)  contravene, conflict with or constitute a
violation of any provision of any law, rule, regulation, judgment, injunction,
order or decree in effect on the original issue date of the Warrants and
binding upon or applicable to the Company;


 


(c)  contravene, conflict with, constitute a
violation of or a default under, or give rise to any right of termination,
cancellation or acceleration of any right or obligation of the Company or to a
loss of any benefit to which the Company is entitled, under any provision of
any material, contract, indenture, lease or other instrument in effect on the
original issue date of the Warrants and binding upon the Company; or


 


(d)  contravene, conflict with, constitute a
violation of, a default under, give rise to the acceleration of any right of a
holder of a security of the Company outstanding on the original issue date of
the Warrants, or any obligations of the Company to a holder of a security of
the Company outstanding on the original issue date of the Warrants or trigger
any adjustment to the economic terms of any security of the Company outstanding
on the original issue date of the Warrants, including, without limitation, any
right, obligation or adjustment that would allow the holder of any security of
the Company, immediately after


 


(i)             the execution,
delivery and issuance of this Certificate and the Warrants represented hereby,


 


(ii)          the performance
by the Company of any of its obligations hereunder as of the date hereof, or


 


(iii)       the issuance of
the Warrant Shares upon exercise and payment therefor at the original Warrant
Price of the Warrants,


 


to convert such security into, exercise such
security for, or otherwise acquire, (A) any security of the Company at a lower
price than such holder was entitled to acquire such security, or (B) a greater
number of securities of the Company, than such holder was entitled to acquire,
in each case, immediately prior to such event.


 


Section 5.2  Number of Outstanding
Shares on a Fully Diluted Basis. 
The Company represents and warrants to each Holder that, as of the date
the Warrants were originally issued, the number of shares of Common Stock
outstanding on a Fully Diluted Basis is 59,209,078, consisting of (a) 41,633,590
shares of validly issued and outstanding shares of Common Stock, (b) 5,500,000
shares of Common Stock issuable upon exercise of the Warrants, in full; (c) 11,208,588
shares of Common Stock  issuable upon
conversion of all outstanding shares of the Company’s Series B
Redeemable Convertible Preferred Stock; and (d) 866,900 shares of Common Stock issuable
pursuant to all outstanding rights, options or other awards under any stock
option or incentive plan of the Company.


 


Section 5.3  Consent of Institutional
Investors.  The Company
represents and warrants to each Holder that the Company has obtained from each
Institutional Investor (as defined in the Institutional Investor Registration
Rights Agreement) a written consent acknowledging and permitting the creation
of the rights and obligations of the Company and the Holders under the
Registration Rights Agreement.


 


6





















 


Section 6.                                            Payment
of Taxes.  The Company
shall pay all documentary stamp or other similar taxes and governmental charges
that may be imposed with respect to, the issuance or delivery of this
Certificate, the Warrants, the Warrant Shares or any other property to which
any Holder is entitled to receive upon exercise of a Warrant, in whole or in
part; provided the Company shall have no obligation to pay any taxes imposed on
the income or capital gain of any Holder or similar taxes imposed on any
Holder, all of which shall be the sole responsibility of such Holder. The Company shall not,
however, be required to pay any taxes payable in connection with any transfer
involved in the issuance or delivery of any Warrants or Warrant Shares in a
name other than that of the Holder in respect of which such Warrant Shares are
issued.  The Company may refuse to
deliver the certificates representing the Warrant Shares being issued in a name
other than the Holder’s name until the Company receives a sum sufficient to pay
any tax that will be due because such shares are to be issued in a name other
than the Holder’s name.


 


Section 7.                                            Mutilated
or Missing Certificates.  If this
Certificate is mutilated, lost, stolen or destroyed, the Company shall issue in
exchange and substitution for and upon cancellation of the mutilated
Certificate, or in lieu of and substitution for the Certificate lost, stolen or
destroyed, a new Certificate of like tenor and representing an equivalent right
or interest, but only upon receipt of evidence reasonably satisfactory to the
Company of such loss, theft or destruction and, in the case of a lost, stolen
or destroyed Certificate, an indemnity, reasonably satisfactory to the Company,
to hold the Company harmless as a result of any such delivery.


 


Section 8.                                            Reservation
of Warrant Shares, Obtaining of Governmental Approvals and Stock Exchange
Listings.


 


Section 8.1  Reservation
of Warrant Shares.  The
Company shall at all times, from and after the original issue date of the
Warrants, keep reserved and keep available, free from preemptive rights, out of
its authorized but unissued Common Stock or authorized Common Stock held in its
treasury, solely for the purpose of issuance upon exercise of the Warrants, the
number of shares of Common Stock and, in the case of any adjustment made
pursuant to Section 10, out of the applicable authorized but unissued class and
series of other securities, if any, sufficient to provide for the full exercise
of the Warrants.  The Company covenants
that all Warrant Shares issued upon exercise of the Warrants will, upon
issuance in accordance with the terms hereof, be duly authorized, validly
issued, fully paid and nonassessable and free from pre–emptive rights, and all
taxes, liens, charges, security interests and other encumbrances other than
liens, charges, security interests and other encumbrances created by the person
or entity to whom the Warrant Shares are issued.


 


Section 8.2  Governmental
Approvals and Stock Exchange Listings.  The Company will (i) obtain and keep
effective any and all permits, consents and approvals of federal or state
governmental agencies and authorities and make all filings under federal and
state securities laws, that are required in connection with the issuance and
delivery of this Certificate and the Warrants represented hereby, the exercise
of the Warrants and the issuance and delivery of the Warrant Shares issued upon
exercise of each Warrant, and (ii) have the Warrant Shares, upon their
issuance, listed on each securities exchange on which the Common Stock and any
other securities included in Warrant Shares are then listed.


 


7





















 


Section 8.3  HSR Act, Etc.  If any Holder’s intended exercise of the
Warrants, in whole or in part (along or with other proposed acquisitions of
Common Stock or other securities of the Company), would or might be subject to
the HSR Act, each of the Company and such Holder shall promptly comply with any
applicable requirements under the HSR Act relating to the filing and furnishing
of information to the Federal Trade Commission and the Antitrust Division of
the Department of Justice and shall cooperate, and cause all persons which are
part of the same “person” (as defined in the HSR Act) as the Company or Holder,
as the case may be, to cooperate and assist in such filing.  In addition, each of the Company and such
Holder shall promptly comply with any applicable anti–trust or anti–competitive
statutory or other legal requirements relating to the submission of information
for approval by a governmental competition authority or agency in a foreign
jurisdiction where the Company is then doing business.  Notwithstanding any provision hereof to the
contrary, neither the Company nor any Holder shall have any obligation
hereunder to take any steps or incur any expense to comply with any proposed
order or declaration, including the institution or defense of litigation or if
compliance with any such order or declaration shall require the disposition of
assets or otherwise.  The Company and the
Holders shall each pay one–half of any and all governmental fees associated
with any HSR or foreign filing; provided, that, each party shall
be responsible for any and all other costs, fees and expenses incurred by such
party, including any fees and expenses of attorneys and accountants retained by
such party.


 


Section 9.                                            Cancellation
of Warrants.  If the Company
purchases or otherwise acquires any Warrant, the Company shall cancel such Warrant,
and any Warrant surrendered for exchange, substitution, transfer or exercise in
whole or in part.


 


Section 10.                                      Adjustment
of Warrant Price and Number and Kind of Warrant Shares.  The number and kind of
Warrant Shares purchasable upon the exercise of each Warrant and the Warrant
Price shall be subject to adjustment from time to time, after the original
issue date of the Warrants, without regard to whether or not the Warrants are
then exercisable, upon the happening of certain events, as described below.  Such adjustments shall be cumulative and made
successively on each and every occasion that any event requiring any such
adjustment shall occur.  This Certificate
need not be changed because of any adjustment made hereunder, and the
Certificate(s) outstanding at the time of such adjustment or issued after such
adjustment may state the same Warrant Price and the same number of and kind of
Warrant Shares as are stated in the Certificate(s) prior to such adjustment, provided,
that, upon a request by such Holder in accordance with Section 2.2
hereof, the Company shall issue another Certificate or Certificates reflecting
any such adjustments.


 


Section 10.1  Mechanical Adjustments.


 


(a)  Adjustment
for Change in Capital Stock.  If
after the date hereof, the Company:


 


(i)             pays a dividend
or makes a distribution on its Common Stock in shares of its Common Stock, or
pays a dividend or makes a distribution on any other class or series of its
capital stock, which distribution includes shares of its Common Stock;


 


(ii)          subdivides the
outstanding shares of its Common Stock into a greater number of shares;


 


8





















 


(iii)       combines the
outstanding shares of its Common Stock into a smaller number of shares;


 


(iv)      makes a
distribution on its Common Stock in shares of its capital stock; or


 


(v)         issues by
reclassification of its Common Stock any shares of its capital stock (other
than (a) rights, warrants, convertible securities or options for its capital
stock or shares of Common Stock held in treasury for the Company’s equity
compensation plan or (b) shares issued pursuant to a reclassification in
connection with a Reorganization which shall be governed by Section 10.5);


 


then the following
adjustments shall be made.  In the case
of an event referred to in clause (i), (ii) and (iii) of this Section 10.1(a),
(x) the number and kind of Warrant Shares, as to which each Warrant may be
exercised, in any case, in effect immediately prior to such action shall be
adjusted so that the Holder of each Warrant thereafter may receive the number
of shares of Common Stock and the number of shares and kind of the Company’s
other capital stock that such Holder would have owned immediately following
such action if such Holder had exercised such Warrant immediately prior to such
action or any record date with respect thereto and (y) the Warrant Price in
effect immediately prior to such action shall be adjusted by dividing such
Warrant Price, (i) in the case of Section 10.1(a)(i), by one plus the number of
shares of Common Stock issued as a dividend or distributed in respect of each
share of Common Stock under Section 10.1(a)(i) or (ii) in the case of Section
10.1(a)(ii), by the number of shares of Common Stock into which each share of
Common Stock is subdivided, and (iii) in the case of an adjustment pursuant to
Section 10.1(a)(iii), by the number of shares of Common Stock into which each
share of Common Stock is combined. In the case of a distribution referred to in
Section 10.1(a)(iv) or a reclassification referred to in Section 10.1(a)(v), no
adjustment shall be made in the Warrant Price, and each Warrant included herein
shall be exercisable for one share of Common Stock and the number of shares of
capital stock distributed in respect of each share of Common Stock or for the
capital stock into which each share of Common Stock shall have been
reclassified, as the case may be, in each case for the Warrant Price in effect
immediately prior to such distribution or reclassification.  In no event shall this Section 10 apply to
any conversion of the Company’s Series B Redeemable Convertible Preferred Stock
pursuant to the terms and conditions of the Company’s Series B Redeemable
Convertible Preferred Stock as in effect on the date this Warrant was
originally issued.  An adjustment
pursuant to this Section 10.1(a) shall become effective immediately after the
applicable Determination Date.


 


(b)  Adjustment
for Extraordinary Cash Dividends or Other Distribution.


 


(i)             If, after the
date hereof, the Company distributes to all holders of its Common Stock,
Extraordinary Cash Dividends, the number of Warrant Shares for which each
Warrant is exercisable shall be adjusted as provided in Section 10.1(c)
hereof and the Warrant Price shall be adjusted, in accordance with the following
formula:


 


9





















 




	
  R’ = R x M–F

  
	
  M

  






 


where:


 


R’
=                          the adjusted Warrant Price;


R
=                              the current Warrant Price;


M
=                          the Current Market Price; and


F
=                               the amount of the Extraordinary Cash
Dividends distributed in respect of each share of Common Stock on the
Determination Date to which this Section 10.1(b) is being applied.


 


(ii)          The adjustment
pursuant to this Section 10.l(b) shall become effective immediately after the
Determination Date for the distribution to which this Section 10.1(b) applies.


 


(iii)       For purposes of
this Section 10.1(b), the term “Extraordinary Cash
Dividend” means any cash dividend with respect to the shares of
Common Stock the per share amount of which, together with the aggregate per
share amount of cash dividends on the Common Stock to be aggregated with such
cash dividend in accordance with the provisions of this paragraph, equals or
exceeds the threshold percentages set forth in items (A) or (B) below:


 


(A)                              If a cash
dividend is declared on the Common Stock, the per share amount of which,
together with the aggregate per share amounts of all cash dividends on the
Common Stock with Determination Dates occurring in the 85 consecutive day
period ending on the date immediately prior to the date on which the Common
Stock begins trading ex–dividend with respect to the cash dividend to which
this provision is being applied equals or exceeds 5% of the average of the
Quoted Prices of the Common Stock during the period beginning on the date
immediately after the first such Determination Date in such period and ending
on the date immediately prior to the Determination Date with respect to the
cash dividend to which this provision is being applied (except that if no other
cash dividend has had a Determination Date occurring in such period, the period
for calculating the average of the Quoted Prices of the Common Stock shall be
the period commencing 85 days immediately prior to the date prior to the
Determination Date with respect to the cash dividend to which this provision is
being applied), such cash dividend together with each other cash dividend with
a Determination Date occurring in such 85 day period shall be deemed to be an
Extraordinary Cash Dividend and for purposes of applying the formula set forth
above in this Section 10.1(b), the value of “F” shall be equal to (x) the
aggregate amount of such cash dividend together with the amounts of the other
cash dividends with Determination Dates occurring in such period minus (y) the aggregate amount of such
other cash dividends with Determination Dates occurring in such period for
which a prior adjustment in the Warrant Price was previously made under this
Section 10.l(b).


 


(B)                                If a cash
dividend is declared on the Common Stock, the per share amount of which
together with the aggregate per share amounts of all cash dividends


 


10





















 


on the Common Stock with Determination Dates
occurring in the 365 consecutive day period ending on the date immediately
prior to the Determination Date with respect to the cash dividend to which this
provision is being applied equals or exceeds 5% of the average of the Quoted
Prices during the period beginning on the date immediately after the first such
Determination Date in such period and ending on the date immediately prior to
the Determination Date with respect to the cash dividend to which this
provision is being applied (except that if no other cash dividend has had a
Determination Date occurring in such period, the period for calculating the
average of the Quoted Prices shall be the period commencing 365 days prior to
the date immediately prior to the Determination Date with respect to the cash
dividend to which this provision is being applied), such cash dividend together
with each other cash dividend with an Determination Date occurring in such 365
day period shall be deemed to be an Extraordinary Cash Dividend and for
purposes of applying the formula set forth above in this Section 10.1(b), the
value of “F” shall be equal to (x) the aggregate amount of such cash dividend
together with the amounts of the other cash dividends with Determination Dates
occurring in such period minus (y)
the aggregate amount of such other cash dividends with Determination Dates
occurring in such period for which a prior adjustment in the Warrant Price was
previously made under this Section 10.1(b).


 


(iv)      In the event
that, with respect to any distribution to which this Section 10.1(b) would
otherwise apply, the amount represented by “M–F” as defined in the above
formula is less than 25% of the Current Market Price on the
Determination Date to which this Section 10.1(b) is being applied or “F” is
greater than “M,” then the adjustment provided by this Section 10.1(b) shall
not be made and in lieu thereof the provisions of Section 10.5(a) (without
reference to Section 10.5(b)) shall apply to such distribution.  No adjustment shall be made under this
Section 10.1(b) if the application of the formula stated above would result in
a value of R’ that is higher than the value of R.


 


(v)         If, after the
date hereof, the Company distributes to all holders of its Common Stock
property or assets of the Company or of any other entity or any debt or equity
securities or any rights, warrants, convertible securities or options to
purchase securities of any other entity (corporation, partnership, limited
liability or similar entity), including any securities or other property issued
by Lion Oil or its successor, then such distribution shall for purposes of the
Warrants be deemed to be an Extraordinary Cash Dividend and the number of
Warrant Shares shall be adjusted as provided in Section 10.1(c) hereof and
the Warrant Price shall be adjusted, in accordance with the formula set forth
above in this Section 10.1(b), as if such Holder had exercised the Warrant
immediately prior to the Determination Date for such distribution.  For purposes of applying the formula set
forth above, the value of “F” shall be equal to fair market value of such
securities as determined in good faith by the Company’s Board of Directors.


 


(c)  Adjustment
of Number of Shares.  Upon each
adjustment of the Warrant Price as a result of the calculations made in
Section 10.1(b), each Warrant outstanding prior to the making of the
adjustment in the Warrant Price shall thereafter evidence the right to
purchase, at the adjusted Warrant Price, that number of Warrant Shares obtained
by (i) multiplying the number of Warrant Shares purchasable upon exercise
of such Warrant immediately prior to such adjustment of the number of Warrant
Shares by the Warrant


 


11





















 


Price
in effect immediately prior to such adjustment of the Warrant Price and
(ii) dividing the product so obtained by the Warrant Price in effect
immediately after such adjustment of the Warrant Price.


 


(d)  Adjustment
for Issuance of Capital Stock. 
Except as set forth in Section 10.1(a) above and except for the issue of
shares pursuant to any stock option or incentive plan of the Company adopted by
the Company’s Board of Directors and approved by the Company’s stockholders or
pursuant to the conversion of the Company’s outstanding Series B Redeemable
Convertible Preferred Stock pursuant to the terms and conditions of the
Company’s Series B Redeemable Convertible Preferred Stock as in effect on the
date this Warrant was originally issued, if and when the Company issues or sells any Common
Stock (including, rights, warrants, convertible securities or options for its
capital stock) for a consideration per share less than the per share Warrant
Price in effect at the time of such issue or sale, then forthwith upon such
issue or sale, (i) the number of Warrant Shares for which each Warrant is
exercisable will be increased to equal the product obtained by multiplying the
number of shares of Common Stock for which such Warrant was exercisable
immediately prior to such issue or sale, by a fraction (A) the numerator of
which shall be the number of shares of Common Stock outstanding on a Fully
Diluted Basis immediately after such issue or sale and (B) the denominator of
which shall be the number of shares of Common Stock outstanding on a Fully
Diluted Basis immediately prior to such issue or sale plus, the number of
shares of Common Stock which the aggregate amount of consideration received by
the Company upon such issue or sale, if any, would have purchased at the
Warrant Price in effect immediately prior to such issue or sale and (ii) the
Warrant Price shall be adjusted to equal the product obtained by multiplying
the Warrant Price immediately prior to such adjustment by a fraction, (A) the
numerator of which shall be the number of shares of Common Stock for which such
Warrant was exercisable immediately prior to the adjustment under clause (i)
and (B) the denominator of which shall be the number of shares of Common Stock
for which such Warrant is exercisable immediately after the adjustment under
clause (i)


 


Section 10.2  When
Adjustment May Be Deferred.  No
adjustment in the Warrant Price need be made unless such adjustment would
require an increase or decrease of at least 1% in the Warrant Price.  Any adjustments that are not made shall be
carried forward and taken into account in any subsequent adjustment.  All calculations under this Section 10 shall
be made to the nearest cent or to the nearest 1/1000th of a share, as the case
may be.


 


Section 10.3  Notice of
Adjustment.  Whenever the
number or kind of Warrant Shares or the Warrant Price is adjusted (including an
adjustment entitled to be deferred pursuant to Section 10.2), the Company shall
promptly mail to each Holder a notice of the adjustment briefly stating the
facts requiring the adjustment and the manner of computing it and the amount of
the adjustment, including the number of shares of Common Stock and the kinds
and amounts of other securities, cash and other property for which and the
Warrant Price at which such Warrant is exercisable immediately after such
adjustment and all other relevant information.


 


12





















 


Section 10.4  Notice of
Certain Transactions.  If:


 


(a)  the Company
takes any action that would require an adjustment in the kind or number of
Warrant Shares or the Warrant Price pursuant to Section 10.1; or


 


(b) 
the Company takes any action referred to in Section 10.5; or


 


(c)  there is a
liquidation or dissolution of the Company; or


 


(d)  the Company
or any other person makes an offer to all holders of the outstanding Common
Stock or other securities issuable upon exercise of the Warrants to purchase or
exchange any shares of the outstanding Common Stock or other securities
issuable upon exercise of the Warrants for cash, assets, capital stock, debt
reduction or any rights, warrants, convertible securities or options to
purchase securities of the Company or such other person;


 


then the Company shall mail to each Holder a
notice stating the proposed record date for a dividend or distribution, rights
offering, the proposed effective date of a subdivision, combination,
reclassification, consolidation, merger, binding share exchange, transfer,
liquidation or dissolution or the initial expiration date of any such
offer.  The Company shall mail the notice
at least 15 days before such date. 
Failure to file or mail the notice or any defect in it shall not affect
the validity of the transaction.


 


Section 10.5  Reorganization
of Company.


 


(a)  If the
Company consolidates with or merges into, or sells or transfers (other than by
mortgage or pledge) all or substantially all of its properties and assets to,
another person, or the Company is a party to a merger or binding share exchange
that reclassifies or changes its outstanding Common Stock or other securities
issuable upon exercise of the Warrants (each, a “Reorganization”), each Warrant
shall after such transaction be exercisable, upon the terms and conditions
specified herein, for the kind and amount of securities or other assets (other
than any securities or other property issued by Lion Oil or its successor)
receivable as a result of such transaction by a holder of the number of shares
of Common Stock or other securities issuable upon exercise of such Warrant that
would have been purchasable upon exercise of such Warrant immediately before
the effective date of such transaction (assuming that such Holder failed to
exercise any rights of election with respect thereto and received per Warrant
Share the kind and amount of securities, cash or other assets received per
share of Common Stock by a majority or (if more than two options) plurality, as
applicable, of the non–electing shares). The Company shall not effect any such
transaction unless prior to or simultaneously with the consummation thereof the
surviving or resulting corporation (if other than the Company) of such
transaction (or, if applicable, the corporation controlling the surviving or
resulting corporation or the Company, as the case may be) or the transferee of
such properties and assets or other appropriate entity shall assume, by a
supplemental agreement executed and delivered to each Holder, the obligation to
deliver to each Holder such securities, assets or cash as, in accordance with
the foregoing provisions, such holders may be entitled to purchase upon
exercise of such Warrant and the other obligations of the Company under such
Warrant.


 


13





















 


(b) 
Notwithstanding the foregoing, (i) if upon a Reorganization of the Company,
consideration payable in exchange for shares of Common Stock consists solely of
cash, or (ii) upon the dissolution, liquidation or winding up of the Company,
then the Holders shall be entitled to receive distributions on the date of such
event on an equal basis with the holders of the Common Stock as if the
Warrants had been exercised immediately prior to such event, less the Warrant
Price, and the Warrants shall be terminated and no longer of any force and
effect.


 


(c) 
If, upon a Reorganization, the Company makes a distribution to all
holders of its Common Stock any of its assets (other than any securities or
other property issued by Lion Oil or its successor), or debt securities or any
rights, warrants, convertible securities or options to purchase securities of
the Company then, from and after the record date for determining the holders of
Common Stock entitled to receive the distribution, each Warrant shall be
exercisable, upon the terms and conditions specified herein for the shares of
Common Stock into which such Warrant was exercisable immediately prior to such
record date, plus the kind and amount of securities, cash or other assets
comprising the distribution that such Holder would have received if such Holder had
exercised such Warrant immediately prior to the Determination Date for such
distribution.


 


(d)  If, upon a Reorganization, the Company makes
a distribution of securities or other property issued by Lion Oil or its
successor to all holders of its Common Stock, then for purposes hereof such
distribution shall be deemed to occur immediately before such Reorganization
and be treated as an Extraordinary Cash Dividend in accordance with Section 10.1(b)(v),
and the provisions of this Section 10.5 shall then apply as if the distribution
of Lion Oil securities or other property was not part of the Reorganization.


 


Section 10.6  Certain
Adjustments to the Company’s Series B Redeemable
Convertible Preferred Stock. 
In the event that the Company’s Series B Redeemable Convertible
Preferred Stock is at any time adjusted or modified pursuant to Section 5(d)(x)
of the TransMontaigne Inc. Certificate of Designations of the Series B Redeemable
Convertible Preferred Stock, but the provisions of the Warrants would not result in a similar
adjustment hereunder, then the Company shall similarly adjust the provisions of
the Warrants so as to preserve, without dilution, the exercise rights of the
Holders.


 


Section 10.7  Simultaneous Adjustments.  In
the event that this Section 10 requires adjustments to the Warrant Price or the
number and kind of Warrant Shares under more than one of Sections 10.1(a) or 10.1(b), and the effective date or
the Determination Dates, as applicable, for the distributions giving rise to
such adjustments shall occur on the same date, then such adjustments shall be
made by applying, first, the provisions of Section 10.l(a), and second, the
provisions of Section 10.1(b).


 


Section 10.8  Successive
Adjustments.  After an adjustment to the Warrant
Price under this Section 10, any subsequent event requiring an adjustment under
this Section 10 shall cause an adjustment to the Warrant Price or the number
and kind of Warrant Shares, in each case, as so adjusted.


 


14





















 


Section 10.9  Further
Adjustments.  If after an adjustment pursuant to
this Section 10, the Holder upon exercise hereof may receive shares of two or
more classes or series of capital stock of the Company (which may include the
Common Stock), shares of capital stock other than the Common Stock or shares of
capital stock of any other person, the Warrant Price and the number and kind of
Warrant Shares, in each case, shall thereafter be subject to adjustment upon
the occurrence of an action taken with respect to any such class or series of
capital stock of the Company or such other person as is contemplated by this
Section 10 with respect to the Common Stock, on terms comparable to those
applicable to Common Stock in this Section 10.


 


Section 11.                                      Fractional Interests.  The Company shall not be required
to issue fractional shares of Common Stock or other securities on the exercise
of any Warrant.  If any fraction of a
share of Common Stock or other security would, except for the provisions of
this Section 11, be issuable on the exercise of a Warrant (or any portion
thereof), the Company shall pay an amount in cash equal to the then Current
Market Price per share multiplied by such fraction.  Notwithstanding the provisions of this
Section 11, in computing adjustments to the Warrant Price or the number and
kind of shares of Common Stock, fractional shares of Common Stock shall be
taken into account and any outstanding Warrant may at any time represent the right
to receive upon conversion less than one share of Common Stock or some other
number of shares of Common Stock which is not a whole number.


 


Section 12.                                      Registration Rights. The Warrants and the Warrant Shares
shall be deemed “Registrable Securities” under the Registration Rights
Agreement and shall have all registration rights afforded to Registrable
Securities therein.


 


Section 13.                                      No Rights as
Stockholders.  Nothing
contained herein shall be construed as conferring upon the Holder the right to
vote or to receive dividends or to consent or to receive any notice (other than
as set forth herein) as stockholders in respect of any meeting of stockholders
for the election of directors of the Company or any other matter, or any rights
whatsoever as stockholders of the Company.


 


Section 14.                                      Notices.


 


(a)                                  All notices and other communications provided
for or permitted hereunder shall be in writing and shall be deemed given (i)
when made, if made by hand delivery, (ii) upon confirmation, if made by
facsimile, or (iii) one business day after being deposited with a reputable
next–day courier, postage prepaid, to the parties as follows:


 


if
to the Company:


 


TransMontaigne Inc.

1670 Broadway, Suite 3100

Denver, Colorado 80202

Attention:  Erik B. Carlson

Facsimile No.:  (303) 626–8228


 


15





















 


with a copy to:


 


Hogan & Hartson L.L.P.

One Tabor Center, Suite 1500

1200 Seventeenth Street

Denver, Colorado 80202

Attention: Whitney Holmes

Facsimile No. (303) 899–7333


 


if
to the Holder:


 


Record
address notified to the Company by the Holder


 


(b)                                 The Company or any Holder by notice to each
other party may designate additional or different addresses as shall be
furnished in writing by such party.  Any
notice or communication mailed to the Holder shall be mailed by first class
mail or other equivalent means at such Holder’s address and shall be
sufficiently given to such Holder if so mailed within the time prescribed.


 


Section 15.                                      Amendment and Waiver.  The Company and each Holder may from time to time supplement, modify or
amend the provisions hereof, except, no provision hereof may be amended,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given, without the written consent of the Company
and the Holders holding Warrants representing the right to purchase a majority
of the Warrant Shares purchasable upon exercise of the then outstanding
Warrants.


 


Section 16.                                      Successors.  All the covenants and provisions hereof by or for the benefit of the
Company or the Holder shall be binding upon and shall inure to the benefit of
their respective successors and assigns hereunder.


 


Section 17.                                      Governing Law.


 


(a) The validity, interpretation and
performance of this Certificate and the Warrants represented hereby and any
dispute arising out of, relating to or in connection with this Certificate and
the Warrants represented hereby shall be governed by the laws of the State of
New York, as applied to contracts made and performed within the State of New York,
without regard to principles of conflicts of law.


 


(b)
To the fullest extent permitted by applicable law, the Company and by receipt
and acceptance of this Warrant each Holder (i) agrees that any claim, action or
proceeding by such party seeking any relief whatsoever arising out of, relating
to or in connection with, this Certificate and the Warrants represented hereby
shall be brought only in the United States District Court for the Southern
District of New York and in any New York State court located in the Borough of
Manhattan and not in any other State or Federal court in the United States of
America or any other court in any other country, (ii) agrees to submit to the
exclusive jurisdiction of such courts located in the State of New York for
purposes of all legal proceedings arising out of, in relation to or in
connection with, this Certificate, the Warrants represented hereby or the
transactions contemplated hereby and (iii) irrevocably


 


16





















 


waives any objection which
it may now or hereafter have to the laying of the venue of any such proceeding
brought in such a court and any claim that any such proceeding brought in such
a court has been brought in an inconvenient forum.


 


Section 18.                                      Third Party Beneficiary.  The provisions hereof have been and are made solely for the benefit of
the Company and each Holder, and their respective successors, transferees and
assigns, and no other person shall acquire or have any right hereunder or by
virtue hereof.


 


Section 19.                                      Headings.  The headings in this Certificate are for convenience only and shall not
limit or otherwise affect the meaning hereof.


 


Section 20.                                      Severability.  If any term, provision, covenant or restriction herein is held by a
court of competent jurisdiction to be invalid, illegal, void or unenforceable,
the remainder of the terms, provisions, covenants and restrictions set forth
herein shall remain in full force and effect and shall in no way be affected,
impaired or invalidated, and the parties hereto shall use their best efforts to
find and employ an alternative means to achieve the same or substantially the
same result as that contemplated by such term, provision, covenant or
restriction. It is hereby stipulated and declared to be the intention of the
parties that they would have executed the remaining terms, provisions,
covenants and restrictions without including any of such which may be hereafter
declared invalid, illegal, void or unenforceable.


 


Section 21.                                      Entire Agreement.  This Certificate and the other Certificates which may from time to time
represent the Warrants is intended by the parties as a final expression of
their agreement and intended to be a complete and exclusive statement of the
agreement and understanding of the parties hereto in respect of the subject
matter contained herein and therein. 
There are no restrictions, promises, warranties or undertakings, other
than those set forth or referred to herein and therein.  This Certificate and the other Certificates
which from time to time may represent the Warrants supersedes all prior
agreements and understandings between the parties with respect to such subject
matter.


 


Section 22.                                      Attorneys’ Fees.  In any action or proceeding brought to enforce any provision hereof, or
where any provision hereof is validly asserted as a defense, the prevailing
party, as determined by the court, shall be entitled to recover reasonable
attorneys’ fees in addition to any other available remedy.


 


Section 23.                                      Further Assurances.  Each party hereto agrees to use all reasonable efforts to obtain all
consents and approvals, and to do all other things, necessary for the
transactions contemplated hereby on or prior to the Expiration Date.  The parties agree to take such further action
and to deliver or cause to be delivered to each other after the date hereof
such additional agreements or instruments as any of them may reasonably request
for the purpose of carrying out the agreements and transactions contemplated
hereby and thereby.


 


[Signature
Page to Follow.]


 


17





















 


IN WITNESS WHEREOF, the
Company has caused this Certificate to be duly executed, all as of the day and
year first above written.


 


	
   

  	
  TRANSMONTAIGNE INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Randall J. Larson

  
	
   

  	
   

  	
   

  
	
   

  	
  Its:

  	
  Executive Vice President

  
	
   

  
	
   

  
	
  (Corporate Seal)

  
	
   

  
	
   

  
	
  Attest:

  
	
   

  
	
   

  
	
  /s/ Erik B. Carlson

  	
   

  
	
   

  	
   

  
	
  Secretary

  
				



 


18





















 


ELECTION
TO PURCHASE


 


The undersigned hereby
irrevocably elects to exercise Warrants represented by this Warrant and to
purchase                 
shares of Common Stock of TransMontaigne Inc. upon the exercise of such
Warrants, and requests that Certificates for such shares be issued and
delivered as follows:


 


	
  ISSUE TO:

  	
   

  	
   

  
	
   

  	
  (Name)

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  (Address, Including Zip Code)

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  (Social Security or Tax
  Identification Number)

  
	
   

  	
   

  	
   

  
	
  DELIVER TO:

  	
   

  	
   

  
	
   

  	
  (Name)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  (Address, Including Zip
  Code)

  



 


In payment of the purchase
price for Common Stock of TransMontaigne Inc., the undersigned hereby (a)
tenders payment of $               in
accordance with Section 3(a) of the Warrant. 
If the number of Warrant Shares hereby exercised is fewer than all the
Warrant Shares represented by this Warrant, the undersigned requests that a new
Warrant representing the number of full Warrant Shares not exercised to be
issued and delivered as set forth below, in accordance with Section 3(b) of the
Warrant:


 


	
  Name of Holder or
  Assignee:

  	
   

  	
   

  
	
   

  	
  (Please Print)

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Address:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Signature:

  	
   

  	
   

  	
  DATED:

  	
   

  	
  , 20

  	
   

  	
   

  
	
  (Signature must conform in
  all respects to name of holder as specified on the fact of this Warrant)

  
	
   

  
	
   

  
	
  Signature Guaranteed:

  	
   

  	
   

  
											



 





















 


ASSIGNMENT


 


FOR VALUE RECEIVED, the
undersigned hereby sells, assigns and transfers unto the Assignee named below
all of the rights of the undersigned represented by the within Warrant, with
respect to the number of Warrant Shares set forth below:


 


	
  Name of Assignee

  	
   

  	
  Address

  	
   

  	
  Number of

  Warrant Shares

  	
   

  	
  Taxpayer

  Identification

  Number

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


and does hereby irrevocably constitute and
appoint                            ,
Attorney, to make such transfer on the Warrant Register maintained at the
principal office of the Company with full power of substitution in the
premises.


 


	
  Dated:

  	
   

  	
   20

  	
   

  	
   

  	
   

  
	
   

  	
  Signature

  
	
  (Signature must conform in
  all respects to name of holder as specified on the face of this Warrant).

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Signature Guaranteed: