Exhibit 10.8
AGREEMENT TO ELECT DIRECTORS
THIS AGREEMENT TO ELECT DIRECTORS (this "Agreement"), dated as of April 17,
1996, is by and among TRANSMONTAIGNE OIL COMPANY, a Delaware corporation (the
"Company"), and the FIRST RESERVE INVESTORS listed on the signature pages
hereof.
WHEREAS, the First Reserve Investors own 6,582,830 shares of common stock, $.01
par value, of the Company (the "Common Stock"); and
WHEREAS, pursuant to a Stockholders Agreement dated May 10, 1995 (the
"Stockholders Agreement"), the First Reserve Investors have the right to elect
two directors to the Board of Directors of the Company by; and
WHEREAS, the Stockholders Agreement will terminate by its own terms at such time
as the Common Stock is registered under the Securities and Exchange Act of 1934
and is being traded on a nationally recognized exchange or the Nasdaq National
Market; and
WHEREAS, the parties wish to provide for the appointment of two directors to the
Board of Directors of the Company by the First Reserve Investors after
termination of the Stockholders Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1.1. Board of Directors. From and after termination of the Stockholders
Agreement, the First Reserve Investors and the Company hereby agree to take, at
any time and from time to time, all action necessary (including, without
limitation, voting the Common Stock owned by them, calling special meetings of
stockholders and executing and delivering written consents) to cause two
directors designated by the First Reserve Investors from time to time to be
elected to the Company's Board of Directors. The First Reserve Investors hereby
designate John A. Hill and William E. Macaulay as their initial nominees for
directors. The Company shall cooperate fully in connection with any vote to
elect as promptly as possible any persons designated by the First Reserve
Investors in accordance with this Agreement. In the event of a disagreement
within the First Reserve Investors group as to any person who the First Reserve
Investors wish to designate for its seats on the Board of Directors, unless
otherwise agreed by the various First Reserve Investors, a majority vote, by
shares of Common Stock held, of the First Reserve Investors shall resolve the
disagreement.
SECTION 1.2. Notices. All notices, requests and other communications to any
party hereunder shall be in writing (including telex, facsimile or similar
writing) and shall be given to such party at its address or telex or facsimile
number set forth on the signature pages hereof or such other address or telex or
facsimile number as such party may hereafter specify in writing to the Secretary
of the Company for the purpose by notice to the party sending such
communication. Each such notice, request or other communication shall be
effective (i) if given by telex or facsimile, when such message is transmitted
to the number set forth on such signature pages or such other number as a party
may specify in writing to the Secretary of the Company or (ii) if given by any
other means, the earlier of, (x) when delivered by hand to the address set forth
on such signature pages or such other address as a party may specify in writing
to the Secretary of the Company or (y) five business days after the mailing of
such notice by certified mail. A single notice to the First Reserve Investors
shall be deemed to be notice to all First Reserve Investors at the same address.
SECTION 2.3. Binding Effect; Benefits. This Agreement shall be binding upon and
inure to the benefit of the parties to this Agreement and their respective
successors and permitted 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 or 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 2.4. Waiver. Any party hereto may, without binding any other party, by
written notice to another party (a) extend the time for the performance of any
of the obligations or other actions of such other party under this Agreement;
(b) waive compliance with any of the conditions or covenants of such other party
contained in this Agreement; and (c) waive or modify performance of any of the
obligations of such other party under this Agreement. 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 representations, warranties, covenants or agreements 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 2.5. Amendment. This Agreement may be amended, modified or supplemented
only by a written instrument executed by the Company and by the First Reserve
Investors.
SECTION 2.6. 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 any First Reserve Investor.
SECTION 2.7. Term. This Agreement shall be effective from and after termination
of the Stockholders Agreement and shall terminate and no longer be binding on
the parties hereto at such time as the First Reserve Investors own less than 10%
of the Common Stock.
SECTION 2.8. Limited Liability of Partners. Notwithstanding any other provision
of this Agreement, neither the general partner nor the limited partners nor any
future general or limited partner of any First Reserve Investor shall have any
personal liability for performance of any obligation of such First Reserve
Investor under this Agreement in excess of the respective capital contribution
of such general partner and limited partners to such First Reserve Investor.
SECTION 2.9. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF DELAWARE WITHOUT REGARD TO THE PRINCIPLES OF
CONFLICTS OF LAWS.
SECTION 2.10. Pronouns. Whenever the context may require any pronoun used herein
shall include the corresponding masculine, feminine or neuter forms.
SECTION 2.11. Attorneys Fees. In the event of a dispute concerning the
provisions of this Agreement which results in litigation, arbitration or other
dispute resolution proceedings the parties agree that the legal fees and other
expenses of the prevailing party shall be borne by the other, non-prevailing
parties to the dispute.
SECTION 2.12. 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 2.13. Counterparts. This Agreement may be executed in any number of
counterparts or separate number of counterparts, each of which shall be deemed
to be an original and all of which together shall be deemed to be one and the
same instrument.
IN WITNESS WHEREOF, the Company and each First Reserve Investor have executed
this Agreement as of the day and year first above written.
TRANSMONTAIGNE OIL COMPANY
By: /s/
Its:
Notices:
Cortlandt S. Dietler
Chief Executive Officer
P.O. Box 5660
Denver, CO 80127
Telephone No.: 303/605-1798
Facsimile No.: 303/605-1671
FIRST RESERVE INVESTORS:
FIRST RESERVE SECURED ENERGY
ASSETS FUND, LIMITED PARTNERSHIP
By: FIRST RESERVE CORPORATION,
as Managing General Partner
By: /s/
Managing Director
Notices:
475 Steamboat Road
Greenwich, CT 06830
Attention: Bruce M. Rothstein
Telephone No.: 203/661-6601
Facsimile No.: 203/661-6729
FIRST RESERVE FUND VI,
LIMITED PARTNERSHIP
By: FIRST RESERVE CORPORATION,
as Managing General Partner
By: /s/
Managing Director
Notices:
475 Steamboat Road
Greenwich, CT 06830
Attention: Bruce M. Rothstein
Telephone No.: 203/661-6601
Facsimile No.: 203/661-6729
FIRST RESERVE FUND V-II,
LIMITED PARTNERSHIP
By: FIRST RESERVE CORPORATION,
as Managing General Partner
By: /s/
Managing Director
Notices:
475 Steamboat Road
Greenwich, CT 06830
Attention: Bruce M. Rothstein
Telephone No.: 203/661-6601
Facsimile No.: 203/661-6729
FIRST RESERVE FUND V,
LIMITED PARTNERSHIP
By: FIRST RESERVE CORPORATION,
as Managing General Partner
By: /s/
Managing Director
Notices:
475 Steamboat Road
Greenwich, CT 06830
Attention: Bruce M. Rothstein
Telephone No.: 203/661-6601
Facsimile No.: 203/661-6729