Exhibit 4.2


 


REGISTRATION RIGHTS AGREEMENT


 


This Registration Rights Agreement (this “Agreement”)
is made and entered into as of November 23, 2004, by and between TransMontaigne
Inc., a Delaware corporation (the “Company”), and Morgan Stanley Capital
Group Inc. (“MSCG”).


 


WHEREAS, the Company’s wholly-owned
subsidiary, TransMontaigne Product Services Inc., a Delaware corporation (“TPSI”),
and MSCG have entered into that certain Product Supply Agreement, dated as of
November 4, 2004, as amended from time to time (the “Product Supply
Agreement”), pursuant to which and in accordance with the terms and
conditions thereof, among other things, MSCG will sell and supply Products (as
defined in the Product Supply Agreement) to TPSI and TPSI will purchase and
receive Products (as defined in the Product Supply Agreement) from MSCG at the
Terminals (as defined in the Product Supply Agreement); and


 


WHEREAS, on the date hereof as partial
consideration for MSCG entering into the Product Supply Agreement, the Company
issued to MSCG a Warrant to Purchase Common Stock of TransMontaigne Inc. (the “Warrant”),
pursuant to which MSCG has the right to purchase, subject to adjustments,
5,500,000 shares (as adjusted from time to time, the “Warrant Shares”)
of common stock, par value $0.01 per share, of the Company (the “Common
Stock”) and, in connection with the issuance of the Warrant, the Company
and MSCG have agreed to enter into this Agreement.


 


NOW, THEREFORE, in consideration of the
aforesaid, the mutual promises hereinafter made and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto agree as follows:


 


ARTICLE I

Definitions


 


Section 1.1.                                   Definitions.  The
following terms, as used herein, shall have the following meanings:


 


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


 


“Advice” has the meaning set forth in
Section 2.3.


 


“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, entity may
include a corporation, partnership, limited partnership, limited liability
company, association, joint stock company, trust or joint venture, but not an
individual human being.


 





















 


“Agreement” has the meaning set forth
in the preamble to this Agreement.


 


“Board” means the Board of Directors
of the Company.


 


“Business Day” means each Monday,
Tuesday, Wednesday, Thursday and Friday which is not a day on which banking
institutions in New York, New York are authorized or obligated by law or
executive order to close.


 


“Commission” means the Securities and
Exchange Commission or any other Federal agency from time to time administering
the 1933 Act or the Exchange Act.


 


“Common Stock” has the meaning set
forth in the recitals to this Agreement.


 


“Common Stock Equivalent” means any
securities of any Person convertible into or exchangeable or exercisable for
Common Stock (whether at the option of such Person or of the holder of such
securities), including the Warrant and Series B Preferred Stock.


 


“Company” has the meaning set forth in
the preamble to this Agreement.


 


“Demand Registration” has the meaning
set forth in Section 2.2.1(a).


 


“Exchange Act” means the Securities
Exchange Act of 1934, as amended.


 


“Existing Registration Rights Agreements”
means the Institutional Investor Registration Rights Agreement, the LDC
Registration Rights Agreement and the Preferred Stock Investor Registration
Rights Agreement.


 


“Institutional Investor Notice” has
the meaning set forth in Section 2.2.1(a).


 


“Institutional Investor Registration
Rights Agreement” means the Registration Rights Agreement, dated as of
April 17, 1996, and amended and restated as of June 27, 2002, by and among the
Company and the Institutional Investors.


 


“Institutional Investors” means the
institutional investors identified on the signature pages to the Institutional
Investor Registration Rights Agreement.


 


“LDC” means the Louis Dreyfus
Corporation.


 


“LDC Holders” has the meaning set
forth in the LDC Registration Rights Agreement.


 


“LDC Notice” has the meaning set forth
in Section 2.2.1(a).


 


“LDC Registration Rights Agreement”
means the Registration Rights Agreement, dated as of October 30, 1998, and
amended and restated as of June 27, 2002, by and between the Company and LDC.


 


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“MSCG” has the meaning set forth in
the preamble to this Agreement.


 


“MSCG Demand Notice” has the meaning
set forth in Section 2.2.1(a).


 


“MSCG Holders” has the meaning set
forth in Section 2.1.1.


 


“Person” means any individual,
corporation, limited liability company, firm, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or any
other entity or organization, including a government, a governmental body, a
political subdivision or an agency or instrumentality thereof.


 


“Piggyback Registration” has the
meaning set forth in Section 2.1.1.


 


“Preferred Stock Investors” means the
holders of Series B Preferred Stock identified on the signature pages of the
Preferred Stock Investor Registration Rights Agreement.


 


“Preferred Stock Investor Holders” has
the meaning set forth in the Preferred Stock Investor Registration Rights
Agreement.


 


“Preferred Stock Investor Notice” has
the meanings set forth in Section 2.2.1(a).


 


“Preferred Stock Investor Registration
Rights Agreement” means the Registration Rights Agreement, dated as of
March 25, 1999, and amended and restated as of June 27, 2002, by and between
the Company and the Preferred Stock Investors.


 


“Product Supply Agreement” has the
meaning set forth in the recitals to this Agreement.


 


“Registration” has the meaning set
forth in Section 2.3.


 


“Registrable Securities” means (x) the
Warrants issued to MSCG and owned by any MSCG Holder, (y) any shares of Common
Stock issued or issuable upon exercise of the Warrants, if any, and (z) any
shares of Common Stock which may be issued or distributed or be issuable in
respect of such shares of Common Stock by way of concession, stock dividend or
stock split or other distribution, recapitalization or reclassification or
similar transaction, but with respect to such shares of Common Stock, only so
long as such shares are “Restricted Securities”. A share of Common Stock
shall be deemed to be a “Restricted Security” until such time as such
share (i) has been effectively registered under the 1933 Act pursuant to a registration
statement with respect to the sale of such share and disposed of pursuant to
such registration statement, (ii) has been distributed to the public pursuant
to Rule 144 (or any similar provision then in force) under the 1933 Act, (iii)
has been otherwise transferred, new certificates for it not bearing a legend
restricting further transfer having been delivered by the Company and may be
publicly sold (without volume or manner of sale restrictions) without
registration under the 1933 Act or any state securities or blue sky law then in
force or (iv) has ceased to be outstanding.


 


“Request Notice” has the meaning set
forth in Section 2.2.1(a).


 


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“Series B Preferred Stock” means the
Company’s Series B Redeemable Convertible Preferred Stock, par value $.01 per
share, which is convertible into shares of Common Stock.


 


“Shelf Registration Statement” means a
registration statement of the Company filed with the Commission on Form S-3 (or
any successor form or other appropriate form under the 1933 Act) for an
offering to be made on a continuous or delayed basis pursuant to Rule 415 under
the 1933 Act (or any similar rule that may be adopted by the Commission)
covering the Registrable Securities.


 


“Stop Order” has the meaning set forth
in Section 2.2.3.


 


“Third Party” has the meaning set
forth in Section 2.1.1.


 


“Third Party Registration” has the
meaning set forth in Section 2.1.3.


 


“TPSI” has the meaning set forth in
the recitals to this Agreement.


 


“Warrant(s)” has the meaning set forth
in the recitals to this Agreement.


 


“Warrant Shares” has the meaning set
forth in the recitals to this Agreement.


 


ARTICLE
II

Registration and Related Rights


 


Section 2.1.                                 Company
Registration.


 


2.1.1.                     Right to
Piggyback on Company Registration of Common Stock.  Subject
to Section 2.1.3, if the Company proposes, on its own initiative or at the
request of a party holding rights to demand registrations of the Common Stock
other than under this Agreement (a “Third Party”) to register any Common
Stock under the 1933 Act in connection with the offering of a primary issuance
or, in the case of such Third Party, a secondary issuance, of such Common Stock
on any form other than Form S-4 or Form S-8 or any form substituting therefor
(except for a registration in connection with an exchange offer of securities
solely to existing securityholders of the Company) and such proposal would
result in the filing of a registration statement with the Commission in
connection therewith at any time, the Company shall at such time promptly give
MSCG, and any successor, assign or transferee of MSCG then owning Registrable
Securities (collectively, the “MSCG Holders”) written notice of such
determination no later than 35 days prior to the proposed effectiveness date
(such proposed effectiveness date to be specified by the Company in the written
notice) of the registration statement to be prepared in connection with such
proposed registration. Any MSCG Holder wishing to register all or any portion
of such MSCG Holder’s Registrable Securities pursuant to such proposed
registration (a “Piggyback Registration”) must give written notice to
the Company of its intent to participate in such proposed registration no later
than 15 days after receipt of the notice delivered by the Company. Subject to
the allocations set forth in Section 2.1.3, upon receipt of such written
request of any such MSCG Holder, the Company will use its reasonable best
efforts to effect the registration under the 1933 Act of all Registrable Securities
which the Company has been so requested to register by the MSCG Holders. Any
MSCG Holder holding Registrable Securities that has


 


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requested to be included in
such registration may elect, in writing at least five Business Days prior to
the effective date of the registration statement filed in connection with such
registration, not to register such Registrable Securities in such registration.


 


2.1.2.                     Selection of
Underwriters.  If the Company or, in the case
of a Third Party Registration, such Third Party, in its sole discretion decides
a Piggyback Registration shall be underwritten, the Company, or such Third
Party, as the case may be, shall have sole discretion in the selection of any
underwriter or underwriters to manage such Piggyback Registration.


 


2.1.3.                     Priority on
Piggyback Registrations.  If the managing underwriter
or underwriters of a Piggyback Registration (or in the case of a Piggyback
Registration not being underwritten, holders of a majority of the shares of
Common Stock proposed to be registered) advise the Company in writing that in
its or their opinion the number of shares of Common Stock proposed to be sold
in such Piggyback Registration (including any shares proposed to be sold by (i)
Preferred Stock Investor Holders pursuant to the Preferred Stock Investor
Registration Rights Agreement, (ii) LDC Holders pursuant to the LDC
Registration Rights Agreement, (iii) Institutional Investors pursuant to the
Institutional Investor Registration Rights Agreement and (iv) MSCG Holders
pursuant to this Agreement) exceeds the number which can be sold, or would
adversely affect the price at which the Common Stock could be sold in such
offering, the Company will include in such Piggyback Registration only that
number of shares of Common Stock which, in the opinion of such underwriter or
underwriters (or in the case of a Piggyback Registration not being
underwritten, holders of a majority of the shares of Common Stock proposed to
be registered), can be sold in such offering without so affecting such price.
The shares of Common Stock to be included in such Piggyback Registration shall
be apportioned (a) first, in the case of a primary issuance by the Company, to
any shares of Common Stock that the Company proposes to sell, or in the case of
a registration at the request of a Third Party (other than the MSCG Holders
pursuant to this Agreement or any Preferred Stock Investor Holders, any LDC
Holder or any Institutional Investor pursuant to an Existing Registration
Rights Agreement, a “Third Party Registration”), to any shares of Common
Stock that such Third Party proposes to sell; (b) second, pro rata
among any shares of Common Stock proposed to be sold by (x) any Preferred Stock
Investor Holders pursuant to the Preferred Stock Investor Registration Rights
Agreement, (y) any LDC Holder pursuant to the LDC Registration Rights Agreement
and (z) any Institutional Investor pursuant to the Institutional Investor
Registration Rights Agreement, in each case according to the total number of
shares of Common Stock requested for inclusion by the Preferred Stock Investor
Holders, the LDC Holders and the Institutional Investors, as applicable, or in
such other proportions as shall mutually be agreed to among such selling stockholders,
as applicable; (c) third, pro  rata among any shares of Common
Stock proposed to be sold by any MSCG Holder, according to the total number of
shares of Common Stock requested for inclusion by each MSCG Holder, or in such
other proportions as shall be mutually agreed to among such selling
stockholders; and (d) fourth, pro  rata among any other shares of
Common Stock proposed to be included in such Piggyback Registration, including,
in the case of a Third Party Registration, the Company, and in the case of a
primary issuance by the Company, any Third Party (other than the Preferred
Stock Investor Holders, the LDC Holders and the Institutional Investors).


 


5





















 


Section 2.2             Demand
Registration Rights.


 


2.2.1.       Right to
Demand Registration.


 


(a)                                  If, at any
time one or more of the MSCG Holders holding Registrable Securities
representing 2.5% or more in the aggregate of the then outstanding Common Stock
(assuming conversion or exercise of all Common Stock Equivalents held by the
MSCG Holders into Common Stock at the then conversion price or exercise price)
submits a written request (a “Request Notice”) to the Company for
registration with the Commission under and in accordance with the provisions of
the 1933 Act of all or part of the Registrable Securities then owned by such
MSCG Holder or MSCG Holders (a “Demand Registration”), the Company shall
thereupon, as expeditiously as possible, use its reasonable best efforts to
file a registration statement with the Commission and have the registration
statement declared effective by the Commission; provided, however,
that the number of Registrable Securities as to which such request is made
shall represent not less than 2.5% of the then outstanding Common Stock and
Common Stock Equivalents. The MSCG Holders acknowledge that, within 10 days
after receipt of such Request Notice, the Company will serve written notice of
such registration request to (i) all Preferred Stock Investor Holders who hold
shares of Common Stock which carry registration rights pursuant to the
Preferred Stock Investor Registration Rights Agreement (the “Preferred Stock
Investor Notice”), (ii) all LDC Holders who hold shares of Common Stock
which carry registration rights pursuant to the LDC Registration Rights
Agreement (the “LDC Notice”), (iii) all Institutional Investors who hold
shares of Common Stock which carry registration rights pursuant to the
Institutional Investor Registration Rights Agreement (the “Institutional
Investor Notice”) and (iv) all other MSCG Holders (the “MSCG Demand
Notice”), and, subject to the pro  rata allocations set forth
in Section 2.2.4, the Company will include in such Demand Registration all such
shares of Common Stock held by the Preferred Stock Investor Holders, LDC
Holders, Institutional Investors and MSCG Holders with respect to which the
Company has received a written request for inclusion therein within 20 days
after the giving of the Preferred Stock Investor Notice, the LDC Notice, the
Institutional Investor Notice and the MSCG Demand Notice. Any Demand
Registration representing 2.5% or more in the aggregate of the then outstanding
Common Stock (assuming conversion or exercise of all Common Stock Equivalents
held by the MSCG Holders into Common Stock at the then conversion price or
exercise price) shall, at MSCG’s option, be underwritten by one or more
underwriters and shall be subject to Section 2.2.2 if such Demand Registration
has not previously been designated an underwritten offering.


 


(b)                                 All MSCG
Holders requesting registration of their Registrable Securities pursuant to
this Section 2.2.1 shall specify the aggregate number of Registrable Securities
proposed to be registered and the intended methods of disposition thereof. The
MSCG Holders shall collectively be entitled to request, three Demand
Registrations (the last of which shall be a Shelf Registration Statement
pursuant to Rule 415 under the 1933 Act to be effective for not less than 180
days) pursuant to which a registration statement covering Registrable Securities
shall be filed with and declared effective by the Commission, the expenses of
which shall be borne by the Company in accordance with Section 2.4, and no more
than one Demand Registration may be requested by any MSCG


 


6





















 


Holder in any 12-month period; provided, however,
that if, following the effective date of any registration statement filed
pursuant to a Demand Registration, any MSCG Holder whose Registrable Securities
are to be included in such Demand Registration pursuant to this Section 2.2.1
elects, by giving written notice to the Company not later than 90 days after
such effective date, not to dispose of its Registrable Securities because of a
material adverse change or event in the business, condition (financial or
otherwise), assets or prospects of the Company and its subsidiaries, taken as a
whole, or because of a material adverse change or event with respect to the
Company and its subsidiaries, taken as a whole, not disclosed in the final
prospectus prepared in connection with such Demand Registration, then such
Demand Registration shall not count as one of the three Demand Registrations
permitted hereunder unless shares of Common Stock representing 2.5% or more of
the then outstanding Common Stock, including Common Stock Equivalents, are sold
pursuant to the registration statement prepared in connection with such Demand
Registration within 90 days of the effective date of such registration
statement and prior to the occurrence of such material adverse change or event.


 


(c)                                  If at the
time of any Request Notice (i) the Company is engaged in a registered public
offering as to which the MSCG Holders had the right to include their
Registrable Securities, whether as a Piggyback Registration or otherwise, (ii)
the Company is engaged in any other activity outside of the ordinary course of
business, such as a merger, consolidation, recapitalization or acquisition
which, in the good faith judgment of the Board, would be materially and
adversely affected by the requested registration or (iii) the Board makes a
good faith determination that the public disclosures required to be made in the
requested registration statement would have a material and adverse impact on
the business, financial condition or prospects of the Company, the Company may
at its option direct that such request be delayed for a period of not more than
90 days, which right to delay may be exercised by the Company only one time in
respect of each Demand Registration.


 


(d)                                 The Company
shall have the same rights to piggyback on a Demand Registration as a MSCG
Holder would have in a Piggyback Registration permitted under Section 2.1
subject to the pro  rata allocations set forth in Section 2.2.4.


 


2.2.2.       Selection of
Underwriters.    If a proposed Demand
Registration involves either a firm or best efforts underwritten offering, the
MSCG Holder(s) giving the Request Notice with respect to such Demand
Registration shall have the right, subject to approval by the Company (which
approval shall not be unreasonably withheld), to select the underwriter or
underwriters to manage such Demand Registration.


 


2.2.3.       Effective
Registration Statement.    A registration
requested pursuant to this Section 2.2 shall not be deemed to have been
effected unless the registration statement prepared in connection therewith has
become effective; provided, however, that if, within 75 days
after such registration statement has become effective (135 days in the case of
the Shelf Registration Statement), the offering of Registrable Securities
pursuant to such registration statement is interfered with by any stop order,
injunction or other order or requirement of the Commission or other
governmental agency or court (collectively, a “Stop Order”), such
registration shall be deemed not to have been effected. Notwithstanding the
preceding sentence,


 


7





















 


if any such Stop Order is
rescinded, the effective period shall continue upon such rescission and be
extended by the number of days by which such Stop Order reduced the effective
period.


 


2.2.4.                     Priority on
Demand Registrations.    If the managing
underwriter or underwriters of a Demand Registration initiated under this
Agreement advise the Company in writing that in its or their opinion the number
of shares of Common Stock proposed to be sold in such Demand Registration
exceeds the number which can be sold, or would adversely affect the price at
which the Common Stock could be sold in such offering, the Company will include
in such registration only that number of shares of Common Stock which, in the
opinion of such underwriter or underwriters, can be sold in such offering
without so affecting such price. The shares of Common Stock to be included in
such Demand Registration shall be apportioned (x) first, shares of Common Stock
held by MSCG Holders who have made a request to be included in such Demand
Registration, (y) second, pro  rata among (i) shares of Common
Stock held by Preferred Stock Investor Holders who have made a request to be
included in such Demand Registration, (ii) shares of Common Stock held by LDC
Holders who have made a request to be included in such Demand Registration and
(iii) shares of Common Stock held by Institutional Investors who have made a
request to be included in such Demand Registration, based on the number of
shares required to be included in such registration statement, (z) third, pro
rata any other shares of Common Stock proposed to be included in such
Demand Registration, including any shares proposed to be sold by the Company
pursuant to such Demand Registration.


 


2.2.5.                     Additional
Rights.  If the Company at any time after the date
hereof grants to any other holders of Common Stock or Common Stock Equivalents
any rights to request the Company to effect the registration under the 1933 Act
of any such shares of Common Stock on terms more favorable to such holders than
the terms set forth in this Agreement, the terms of this Agreement shall be
deemed amended or supplemented to the extent necessary to provide the MSCG
Holders with the same, more favorable terms. The Company shall not grant any
other Person rights to register securities of the Company on terms which could
restrict in any way the ability of the Company fully to perform its obligations
to the MSCG Holders pursuant to this Agreement, except for the Preferred Stock
Investor Registration Rights Agreement, the LDC Registration Rights Agreement
and the Institutional Investor Registration Rights Agreement and the granting
of registration rights in respect of Piggyback Registrations and Demand
Registrations to the Preferred Stock Investor Holders, the LDC Holders and the
Institutional Investors, respectively, on the respective terms and conditions
set forth in such agreements, as of the date hereof, to which MSCG hereby
consents.


 


Section 2.3                                      Registration
Procedures.    It shall be a
condition precedent to the obligations of the Company and any underwriter or
underwriters to take any action pursuant to this Article II that the MSCG
Holders requesting inclusion in any Piggyback Registration, Shelf Registration
Statement or Demand Registration (collectively referred to as a “Registration”)
furnish to the Company such information regarding them, the Registrable
Securities held by them, the intended method of disposition of such Registrable
Securities, and such agreements regarding indemnification, disposition of such
securities and the other matters referred to in this Article II as the Company
may reasonably request and as may be required in connection with any action to
be taken by the Company or any such underwriter. With respect to any
Registration which includes Registrable Securities held by a MSCG Holder, the
Company shall, subject to Sections 2.1 and 2.2;


 


8





















 


2.3.1.                     Prepare and
file with the Commission a registration statement on the appropriate form
prescribed by the Commission within 90 days after the end of the period within
which requests for registration may be given to the Company, file with the
Commission any necessary amendments to the registration statement with respect
to such Registrable Securities and use its reasonable best efforts to cause
such registration statement to become effective; provided, however,
that at least five business days prior to filing a registration statement and
at least three business days prior to the filing of a prospectus or any
amendments or supplements to a registration statement or a prospectus,
including documents incorporated by reference after the initial filing of the
registration statement, the Company shall furnish to the holders of the
Registrable Securities covered by such registration statement and the
underwriter or underwriters, if any, copies of or drafts of all such documents
proposed to be filed, which documents shall be subject to the reasonable review
of such holders and underwriters, if any, and the Company shall not file any
registration statement or amendment thereto or any prospectus or any supplement
thereto or any documents required to be incorporated by reference therein to
which the MSCG Holders or the underwriters, if any, shall reasonably object;


 


2.3.2.                     Prepare and
file with the Commission such amendments and post-effective amendments to such
registration statement and any documents required to be incorporated by
reference therein as may be necessary to keep the registration statement
effective for a period of time as necessary to complete the offering, which
period shall be not less than 90 days (or 180 days in the case of the Shelf
Registration Statement) (or such shorter period that shall terminate when all
Registrable Securities covered by such registration statement have been sold or
withdrawn, but not prior to the expiration of the time period referred to in
Section 4(3) of the 1933 Act and Rule 174 thereunder, if applicable); cause the
prospectus to be supplemented by any required prospectus supplement, and as so
supplemented to be filed pursuant to Rule 424 under the 1933 Act (or any
successor rule); and comply with the provisions of the 1933 Act applicable to
it with respect to the disposition of all Registrable Securities covered by
such registration statement during the applicable period in accordance with the
intended methods of disposition by the sellers thereof set forth in such
registration statement or supplement to the prospectus;


 


2.3.3.                     Furnish to
each such MSCG Holder, without charge, at least one conformed copy of the
registration statement and any post-effective amendment thereto, upon request,
and such number of copies of the prospectus (including each preliminary
prospectus) and any amendments or supplements thereto, and any exhibits or
documents incorporated by reference therein as any such MSCG Holder or
underwriter or underwriters, if any, may request in order to facilitate the disposition
of the securities being sold by any such MSCG Holder (it being understood that
the Company consents to the use of the prospectus and any amendment or
supplement thereto by any such MSCG Holder covered by the registration
statement and the underwriter or underwriters, if any, in connection with the
offering and sale of the securities covered by the prospectus or any amendments
or supplements thereto);


 


2.3.4.                     Immediately
notify each such MSCG Holder, at any time when a prospectus relating thereto is
required to be delivered under the 1933 Act, when the Company becomes aware of
the occurrence of any event as a result of which the prospectus included in
such registration statement (as then in effect) contains any untrue statement
of material fact or omits to state a material fact necessary to make the
statements therein (in the case of the


 


9





















 


prospectus or any preliminary
prospectus, in light of the circumstances under which they were made) not
misleading and, as promptly as practicable thereafter, prepare and file with
the Commission and furnish a supplement or amendment to such prospectus so
that, as thereafter delivered to the MSCG Holders (a reasonable number of such
amended and supplemented prospectuses having been delivered to the MSCG
Holders), such prospectus will not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading;


 


2.3.5.                     Use its
reasonable best efforts to cause all securities included in such registration
statement to be listed, by the date of the first sale of securities pursuant to
such registration statement, on each national securities exchange or market on
which the Common Stock is then listed;


 


2.3.6.                     Make every
reasonable effort to obtain the withdrawal of any Stop Order suspending the
effectiveness of the registration statement or other order suspending the use
of any preliminary or final prospectus at the earliest possible moment;


 


2.3.7.                     Subject to
the time limitations specified in Section 2.3.2, if requested by the managing
underwriter or underwriters or any such MSCG Holder, promptly incorporate in a
prospectus supplement or post-effective amendment such information with respect
to the offering as the managing underwriter or underwriters or such MSCG Holder
reasonably requests to be included therein, including, without limitation, with
respect to the number of shares being sold by such MSCG Holder to such
underwriter or underwriters, the purchase price being paid therefor by such
underwriter or underwriters and with respect to any term of the underwritten
offering of the securities to be sold in such offering; and make all required
filings of such prospectus supplement or post-effective amendment as soon as
practicable after being notified of the matters to be incorporated in such
prospectus supplement or post-effective amendment;


 


2.3.8.                     As promptly
as practicable after the filing with the Commission of any document which is
incorporated by reference into a registration statement, deliver a reasonable
number of copies of such document to each such MSCG Holder;


 


2.3.9.                     Prior to the
date on which the registration statement is declared effective, use its
reasonable best efforts to register or qualify, and cooperate with such MSCG
Holders, the underwriter or underwriters, if any, and their counsel in
connection with the registration or qualification of, the securities covered by
the registration statement for offer and sale under the securities or blue sky
laws of each state and other jurisdiction of the United States as such MSCG
Holders or managing underwriter or underwriters, if any, requests in writing,
use its reasonable best efforts to keep each such registration or qualification
effective, including through new filings, or amendments or renewals, during the
period such registration statement is required to be kept effective and do any
and all other acts or things necessary or advisable to enable the disposition
in all such jurisdictions of the Registrable Securities covered by the
applicable registration statement; provided, however, that the Company
shall not be required to qualify generally to do business in any jurisdiction
where it is not then so qualified or to take any action which would subject it
to general service of process in any such jurisdiction where it is not then so
subject;


 


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2.3.10.               Enter into
such customary agreements (including an underwriting agreement in customary
form) and take such other actions customarily taken by registrants, if any, as
the MSCG Holders or the underwriters may reasonably request in order to
expedite or facilitate the disposition of such Registrable Securities;


 


2.3.11.               Obtain a “comfort”
letter or letters from the Company’s independent public accountants in
customary form and covering matters of the type customarily covered by “comfort”
letters as the MSCG Holders or the underwriters, if any, may reasonably
request, dated the date of execution of the underwriting agreement, if
applicable, and brought down to the closing under the underwriting agreement;


 


2.3.12.               Obtain for
delivery to the MSCG Holders holding Registrable Securities covered by such
registration statement and to the underwriter or underwriters, if any, an
opinion or opinions from counsel for the Company dated the effective date of
the registration statement, or in the event of an underwritten offering, the
date of the closing under the underwriting agreement, in customary form, scope
and substance, which counsel and opinions shall be reasonably satisfactory to a
majority of the MSCG Holders and the underwriter or underwriters, if any, and
their respective counsel.


 


2.3.13.               Make
available for inspection by any MSCG Holder holding Registrable Securities
covered by such registration statement, by any underwriter participating in any
disposition to be effected pursuant to such registration statement and by any
attorney, accountant or other agent retained by any such seller or any such
underwriter, all pertinent financial and other records, pertinent corporate
documents and properties of the Company, and cause the Company’s officers,
directors, employees and independent public accountants to make themselves
available to discuss the business of the Company and to supply all information
reasonably requested by any such MSCG Holder, underwriter, attorney, accountant
or agent in connection with such registration statement;


 


2.3.14.               Cooperate
with such MSCG Holders and the managing underwriter or underwriters, if any, to
facilitate the timely preparation and delivery of certificates (not bearing any
restrictive legends) representing securities to be sold under the registration
statement, and enable such securities to be in such denominations and
registered in such names as the MSCG Holders or the managing underwriter or
underwriters, if any, may request; and


 


2.3.15.               Use its
reasonable best efforts to cause the securities covered by the registration
statement to be registered with or approved by such other governmental agencies
or authorities within the United States, including, without limitation, the
National Association of Securities Dealers, Inc., as may be necessary to enable
the seller or sellers thereof or the underwriter or underwriters, if any, to
consummate the disposition of such Registrable Securities.


 


2.3.16.               The MSCG
Holders, upon receipt of any notice from the Company of the happening of any
event of the kind described in Section 2.3.4, shall forthwith discontinue
disposition of the securities until the MSCG Holders’ receipt of the copies of
the supplemented or amended prospectus contemplated by Section 2.3.4 or until
they are advised in writing (the “Advice”) by the Company that the use
of the prospectus may be resumed, and have received copies of any additional or
supplemental filings which are incorporated by reference in the


 


11





















 


prospectus, and, if so directed
by the Company, each MSCG Holder shall, or shall request the managing
underwriter or underwriters, if any, to, deliver to the Company (at the Company’s
expense) all copies, other than permanent file copies then in such MSCG Holder’s
possession, of the prospectus covering such securities which is current at the
time of receipt of such notice. In the event that the Company gives any such
notice, the time periods set forth in Section 2.3.4 shall be extended by the
number of days during the period from and including the date of the giving of
such notice to and including the date when each seller of securities covered by
such registration statement shall have received the copies of the supplemented
or amended prospectus contemplated by Section 2.3.4 or the Advice.


 


Section 2.4                                      Registration
Expenses.  In the case of any Registration, the Company
shall bear all of the costs and expenses of such Registration (including,
without limitation, the expenses of preparing any registration statement,
Commission and state “blue sky” filings, registration and qualification fees,
the cost of providing any legal opinion or “comfort” letters requested by the
MSCG Holders and printing costs) and legal fees or expenses of one counsel for
the MSCG Holders, the Preferred Stock Investor Holders, the LDC Holders and the
Institutional Investors mutually selected by the MSCG Holders, the Preferred
Stock Investor Holders, the LDC Holders and the Institutional Investors (such
counsel being subject to the reasonable approval of the Company); provided,
however, that the Company shall not be responsible for registration or
qualification fees or underwriter’s discounts or commissions that are
attributable to the Registrable Securities of a MSCG Holder.  In connection with any Registration, the
Company shall be required to obtain independent outside counsel that is
sophisticated in securities law matters and that is reasonably satisfactory to
a majority of the MSCG Holders that have shares of Common Stock included in
such Registration.


 


Section 2.5                                      Indemnification
and Contribution.


 


2.5.1.                     Indemnification
by the Company.  The Company agrees to
indemnify and hold harmless each MSCG Holder, its officers, directors, advisors
and agents and each Person who controls (within the meaning of the 1933 Act or
the Exchange Act) such Person from and against all losses, claims, damages,
liabilities (or actions or proceedings in respect thereof, whether or not such
Person is a party thereto) and expenses (including but not limited to cost of
investigation and legal expenses) arising out of or based upon any untrue or
allegedly untrue statement of a material fact contained in any registration
statement, prospectus or preliminary prospectus in which such MSCG Holder is
participating or in any document incorporated by reference therein or any
omission or alleged omission to state therein a material fact necessary to make
the statements therein (in the case of the prospectus or any preliminary
prospectus, in light of the circumstances under which they were made) not
misleading, except insofar as the same are caused by, based upon or contained
in any information with respect to such MSCG Holder furnished in writing to the
Company by such MSCG Holder expressly for use therein; provided, however,
that the foregoing indemnity agreement with respect to any preliminary
prospectus shall not inure to the benefit of any MSCG Holder from whom the
Person asserting such loss, claim, damage or liability purchased shares of
Common Stock if it is determined that it was the responsibility of such MSCG
Holder to provide such Person with a current copy of the prospectus and such
current copy of the prospectus would have cured such loss, claim, damage or
liability. The Company shall also indemnify, if applicable and if requested,
underwriters (as such term is defined in the 1933 Act), their officers and
directors and each Person who controls


 


12





















 


such Persons (within the
meaning of the 1933 Act and the Exchange Act) to the same extent as provided
above with respect to the indemnification of the MSCG Holders.


 


2.5.2.                     Indemnification
by MSCG.  In connection with any Registration in which a
MSCG Holder is participating, such MSCG Holder shall furnish to the Company in
writing such information and affidavits with respect to such MSCG Holder as the
Company may reasonably request for use in connection with any registration
statement or prospectus and the MSCG agree to indemnify and hold harmless the
Company, its directors, officers and agents and each Person who controls
(within the meaning of the 1933 Act and the Exchange Act) the Company from and
against any losses, claims, damages, liabilities (or actions or proceedings in
respect thereof, whether or not the Company is a party thereto) and expenses
(including reasonable cost of investigation and legal expense) arising out of
or based upon any untrue statement of a material fact or any omission to state
a material fact necessary to make the statements in the registration statement
or prospectus or preliminary prospectus (in the case of the prospectus or
preliminary prospectus, in light of the circumstances under which they were
made) not misleading, to the extent, but only to the extent, that such untrue
statement or omission is contained in any information or affidavit with respect
to such MSCG Holder furnished in writing to the Company by such MSCG Holder
expressly for use therein; provided, however, that the amount
recoverable by the Company from the MSCG Holder under this indemnification
provision together with any amounts recovered from the MSCG Holders under
Section 3.7 hereof shall not exceed the amount of net proceeds received by all
MSCG Holders from the sale of Registrable Securities in connection with any
such Registration; and provided  further that the indemnity
agreement contained in this Section 2.5.2 shall not apply to amounts paid in
settlement of any loss, claim, damage, liability or action arising pursuant to
a Registration if such settlement is effected without the consent of such MSCG
Holder (which consent shall not be unreasonably withheld). Such indemnity shall
remain in full force and effect regardless of any investigation made by or on
behalf of the Company or any of the prospective sellers, or any of their
respective Affiliates, directors, officers or controlling Persons and shall
survive the transfer of such securities by such seller.


 


2.5.3.                     Conduct of
Indemnification Proceedings.  Any Person entitled to
indemnification hereunder shall (x) give prompt written notice to the
indemnifying party of any claim with respect to which it seeks indemnification
and (y) unless in such indemnified party’s reasonable judgment a conflict of
interest may exist between such indemnified and indemnifying party, permit the
indemnifying party to assume the defense of such claim, with counsel reasonably
satisfactory to the indemnified party. The failure to so notify the
indemnifying party shall relieve the indemnifying party from any liability
hereunder with respect to the action to the extent that such failure materially
prejudices the indemnifying party. Whether or not such defense is assumed by
the indemnifying party, the indemnifying party shall not be subject to any
liability for any settlement made without its consent (which consent shall not
be unreasonably withheld). No indemnifying party shall consent to entry of any
judgment or enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
indemnified party of a release from all liability in respect of such claim or litigation.
An indemnifying party who is not entitled to, or elects not to, assume the
defense of a claim shall not be obligated to pay the fees and expenses of more
than one counsel for all parties indemnified by such indemnifying party with
respect to such claim, unless in the reasonable judgment of any indemnified
party, a conflict of interest may exist between such indemnified


 


13





















 


party and any other of such
indemnified parties with respect to such claim, in which event the indemnifying
party shall be obligated to pay the reasonable fees and expenses of such
additional counsel or counsels.


 


2.5.4.                     Contribution.  If
for any reason the indemnification provided for in the preceding Sections 2.5.1
and 2.5.2 is unavailable to an indemnified party as contemplated by the
preceding Sections 2.5.1 and 2.5.2 for any reason, then the indemnifying party
shall contribute to the amount paid or payable by the indemnified party as a
result of such loss, claim, damage or liability in such proportion as is
appropriate to reflect not only the relative benefits received by the
indemnified party and the indemnifying party, but also the relative fault of
the indemnified party and the indemnifying party, as well as any other relevant
equitable considerations. Notwithstanding the foregoing, if the indemnifying
party is any MSCG Holder, any contribution pursuant to this Section 2.5.4 shall
be several and not joint, and shall be limited to the amount of net proceeds
received by such MSCG Holder from the sale of Registrable Securities in
connection with the applicable Registration.


 


2.5.5.                     Other
Indemnification.  Indemnification similar to
that set forth in the preceding subdivisions of this Section 2.5 (with
appropriate modifications) shall be given by the Company and MSCG with respect
to any required registration or other qualification of securities under any
Federal or state law or regulation or governmental authority other than the
1933 Act.


 


Section 2.6                                      Exchange Act
Reports.  The Company agrees that it will use its
reasonable best efforts to file in a timely manner all reports required to be
filed by it pursuant to the Exchange Act to the extent the Company is required
to file such reports. Upon the reasonable request of MSCG, the Company will
furnish MSCG with such information as may be necessary to enable MSCG to effect
sales pursuant to Rule 144A.


 


Section 2.7                                      Restrictions
on Public Sale by Holder of Securities.


 


2.7.1.                     Lock-Up
Periods for Selling Holders.  To the extent not inconsistent
with applicable law, any MSCG Holder whose Registrable Securities are included
in a Registration relating in whole or in part to an underwritten public
offering agrees not to effect any public sale or distribution of the issue
being registered or any similar security of the Company, or any securities
convertible into or exchangeable or exercisable for such securities, including
a public sale pursuant to Rule 144 under the 1933 Act, during the 14 days prior
to, and during the 180-day period beginning on, the effective date of such
registration statement (except as part of such Registration); provided, however,
that the foregoing shall only apply if and to the extent requested by the
managing underwriter or underwriters.


 


2.7.2.                     Lock-Up
Periods During Company Offering.  Each MSCG Holder agrees
that, in the event the Company files a registration statement under the 1933
Act with respect to an underwritten public offering of any shares of Common
Stock or Common Stock Equivalents, such MSCG Holder shall not effect any public
sale or distribution of any Common Stock owned by it (other than as part of
such underwritten public offering) within seven (7) days prior to, and during
the 180-day period beginning on, the effective date of such registration
statement and the Company hereby also so agrees and agrees to use its
reasonable best efforts to cause, as the managing underwriters may require,
each other holder of any equity security, or of any security


 


14





















 


convertible into or
exchangeable or exercisable for any equity security, of the Company purchased
from the Company (at any time other than in a public offering) to so agree.


 


Section 2.8                                      Participation
in Registrations.  No MSCG Holder may
participate in any Registration hereunder unless such MSCG Holder (x) agrees to
sell such MSCG Holder’s securities on the basis provided in any underwriting
arrangements approved by the Persons entitled hereunder to approve such
arrangements and (y) completes and executes all questionnaires, powers of
attorney, underwriting agreements and other documents customarily required
under the terms of such underwriting arrangements.


 


Section 2.9                                      Remedies.  MSCG
shall have the right and remedy to have the provisions of Sections 2.1 and 2.2
specifically enforced by any court having jurisdiction in the event that the
Company breaches such provisions, and the Company shall reimburse MSCG for the
reasonable costs of the expenses for counsel for MSCG incurred in connection
with such proceeding.


 


ARTICLE
III


Miscellaneous


 


Section 3.1.                                   Notices.  All
notices or other communications required or permitted to be given hereunder
shall be in writing and shall be delivered by hand or sent by prepaid telex,
cable or telecopy or sent, postage prepaid, by registered, certified or express
mail or reputable overnight courier service and shall be deemed given when so
delivered by hand, telexed, cabled or facsimile, or if mailed, three days after
mailing (one business day in the case of express mail or overnight courier
service), as follows:


 


if
to the Company, to:


 


TransMontaigne Inc.

1670 Broadway, Suite 3100

Denver, Colorado 80202

Phone:  (303) 626-8200

Fax: (303) 626-8228

Attention:  Erik B. Carlson, Esq.


 


with a copy to:


 


Hogan & Hartson L.L.P.

One Tabor Center, Suite 1500

1200 Seventeenth Street

Denver, Colorado 80202

Phone:    (303) 454-2420

Fax:         (303)
899-7333

Attention:  Whitney Holmes, Esq.


 


15





















 


If
to MSCG, to:


 


Morgan Stanley Capital Group Inc.

2000 Westchester Avenue, Floor 01

Purchase, New York 10577

Phone:  (914) 225-1607

Fax:  (914) 225-9301

Attention:  Javed Ahmed


 


with a copy to:


 


Morgan Stanley Capital Group Inc.

2000 Westchester Avenue, Floor 01

Purchase, New York 10577

Phone:  (914) 225-5542

Fax:  (914) 225-5715

Attention:  Herb Thornhill


 


and a copy to:


 


Cleary, Gottlieb, Steen & Hamilton

One Liberty Plaza

New York, NY 10006

Phone:  (212) 225-2000

Fax:  (212) 225-3999

Attention:  Christopher E. Austin


 


Section 3.2.                                   Binding
Effect; Benefits.  This Agreement shall be binding upon and inure
to the benefit of the parties to this Agreement and their respective
successors, transferees and assigns. Nothing in this Agreement, express or
implied, is intended or shall be construed to give any Person other than the
parties to this Agreement, the other MSCG Holders, if any, and their respective
successors or assigns any legal or equitable right, remedy or claim under or in
respect of any agreement or any provision contained herein. This Agreement
constitutes the entire agreement and understanding, and supersedes and
terminates all prior agreements and understandings, both oral and written,
between the parties hereto relating to the subject matter hereof.


 


Section 3.3.                                   Waiver.  Any
party hereto may, by written notice to any other party (x) extend the time for
the performance of any of the obligations or other actions of such other party
under this Agreement to the extent that such obligations or other actions are
due to the party giving notice; (y) waive compliance with any of the conditions
or covenants of such other party contained in this Agreement to the extent that
such conditions or covenants relate to the party giving notice; and (z) waive
or modify performance of any of the obligations of such other party under this
Agreement to the extent that such obligations are due to the party giving
notice. Except as provided in the preceding sentence, no action taken pursuant
to this Agreement, including, without limitation, any investigation by or on
behalf of any party, shall be deemed to constitute a waiver by the party taking
such action of compliance with any representation,


 


16





















 


warranty, covenant or agreement
contained herein. Neither the waiver by any party hereto of a breach of any
provision hereof or any preceding or succeeding breach nor the failure by any
party to exercise any right or privilege hereunder shall be deemed a waiver of
such party’s rights or privileges hereunder nor shall it be deemed a waiver of
such party’s rights to exercise the same at any subsequent time or times
hereunder.


 


Section 3.4.                                   Amendments.  No
amendment or modification in respect of this Agreement shall be effective
unless it shall be in writing and signed by the Company and the holders of
two-thirds of the Registrable Securities. Any such amendment or modification in
respect of this Agreement executed by or on behalf of the MSCG Holders shall
bind each other MSCG Holder, if any, to the terms and conditions thereof. The
Company agrees that all holders of Registrable Securities shall be notified by
the Company in advance of any proposed amendment or modification of this
Agreement, but failure to give such notice shall not in any way affect the
validity of any such amendment or modification. In addition, promptly after
obtaining the written consent of the holders as herein provided, the Company
shall transmit a copy of any amendment or modification which has been adopted
to all holders of Registrable Securities then outstanding, but failure to
transmit copies shall not in any way affect the validity of any such amendment
or modification.


 


Section 3.5.                                   Assignability.  Neither
this Agreement nor any right, remedy, obligation or liability arising hereunder
or by reason hereof shall be assignable by either the Company or MSCG (other
than by MSCG in connection with, and in compliance with the terms and
conditions of, a transfer, in whole or in part, of the Registrable Securities),
or any transferee of the foregoing.  Any
assignment in violation of this Section 3.5 shall be void and of no force or
effect.


 


Section 3.6.                                Governing
Law.  This Agreement, and any dispute arising out of, relating to
or in connection with this Agreement, shall be governed by and construed in
accordance with the internal laws of the State of New York applicable to
agreements made and to be performed entirely within such State.


 


To
the fullest extent permitted by applicable law, each party hereto (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 Agreement or the transactions contemplated 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 Agreement or the transactions contemplated hereby and (iii) irrevocably
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 3.7.                                   Attorney
Fees.  Subject to Section 2.5.2, a party in breach of this
Agreement shall, on demand, indemnify and hold harmless the other parties
hereto from and against all reasonable out-of-pocket expenses, including legal
fees, incurred by such other parties


 


17





















 


by reason of the enforcement
and protection of their rights under this Agreement. The payment of such
expenses is in addition to any other relief to which such other parties may be
entitled.


 


Section 3.8.                                   Section
and Other Headings.  The section and other headings contained in
this Agreement are for reference purposes only and shall not affect the meaning
or interpretation of this Agreement.


 


Section 3.9.                                   Counterparts.  This
Agreement may be executed in one or more counterparts, all of which shall be
considered one and the same agreement, and, subject to Section 3.10, shall
become effective when one or more such counterparts have been signed by each of
the parties and delivered to the other parties.


 


Section 3.10.                             Condition
Precedent to Effectiveness.  Each
party acknowledges and agrees that this Agreement and the rights and
obligations created hereby shall not be effective until the earlier to occur of
(a) March 1, 2005 and (b) the date immediately preceding the occurrence of a
Reorganization (as defined in the Warrant).


 


Section 3.11.                             Institutional
Investors Registration Rights Agreement. 
The Company represents and warrants to MSCG that the Company has
obtained from each Institutional Investor a written consent acknowledging and
permitting the creation of the rights and obligations of the Company and MSCG
under this Agreement.


 


[Signature
Page to Follow.]


 


18





















 


IN WITNESS WHEREOF, the parties have caused
this Agreement to be duly executed as of the date first written above.


 


 


	
   

  	
  TRANSMONTAIGNE INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Randall J. Larson

  
	
   

  	
   

  	
  Name: Randall J. Larson

  
	
   

  	
   

  	
  Title: Executive Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  MORGAN STANLEY CAPITAL GROUP INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Neal A. Shear

  
	
   

  	
   

  	
  Name: Neal A. Shear

  
	
   

  	
   

  	
  Title: Chairman and President

  



 


 


[Registration Rights Agreement Signature Page]