SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
Hvide Marine Incorporated
- ---------------------------------------------------------------
(Name of Issuer)
Class A Common Stock, Par Value $0.001 Per Share
- ---------------------------------------------------------------
(Title of Class of Securities)
448515 10 6
--------------------------------------------
(CUSIP Number)
Daniel V. Cahillane J. Erik Hvide
Clipper Capital Associates, L.P. Hvide Marine, Incorporated
12 East 49th Street 2200 Eller Drive
New York, NY 10017 Fort Lauderdale, FL 33116
(212) 715-5742 (954) 524-4200
- ------------------------------------------------------------------
(Name, Address and Telephone Number of Persons Authorized to Receive
Notices and Communications)
September 12, 1996
-----------------------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule
13G to report the acquisition which is the subject of this Schedule
13D, and is filing this schedule because of Rule 13d-1(b)(3) or (4),
check the following box [ ].
Check the following box if a fee is being paid with this statement.|X|
(A fee is not required only if the reporting person: (1) has a
previous statement on file reporting beneficial ownership of more
than five percent of the class of securities described in Item 1;
and (2) has filed no amendment subsequent thereto reporting
beneficial ownership of five percent or less of such class.) (See
Rule 13d-7.)
Note: Six copies of this statement, including all exhibits, should
be filed with the Commission. See Rule 13d-1(a) for other parties to
whom copies are to be sent.
The information required on the remainder of this cover page shall
not be deemed to be "filed" for the purpose of Section 18 of the
Securities Exchange Act of 1934 ("Act") or otherwise subject to the
liabilities of that section of the Act but shall be subject to all
other provisions of the Act (however, see the Notes).
(Continued on following page(s))
Page 1 of 13 Pages
<PAGE>
SCHEDULE 13D
CUSIP No. 448515 10 6
- --------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. or I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Clipper Capital Associates, Inc.
- --------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [ ]
- --------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO
- --------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) [ ]
- --------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- ---------------------------------------------------------------------
NUMBER OF SOLE VOTING POWER
SHARES 7 -0-
BENEFICIALLY --------------------------------
OWNED BY EACH 8 SHARED VOTING POWER
REPORTING 3,804,508**
PERSON WITH --------------------------------
9 SOLE DISPOSITIVE POWER
1,870,320**
--------------------------------
10 SHARED DISPOSITIVE POWER
-0-
- ----------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,804,508**
- ----------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
- ----------------------------------------------------------------------
PERCENT OF CLASS REPRESENTED
13 BY AMOUNT IN ROW (11)
34.4%**
- ----------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
CO
- ----------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
**SEE DESCRIPTION PRESENTED UNDER THE CAPTION
"ITEM 5. INTEREST IN SECURITIES OF THE ISSUER"
Page 2 of 13 Pages
<PAGE>
SCHEDULE 13D
CUSIP No. 448515 10 6
- --------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. or I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
J. Erik Hvide
- --------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [ ]
- --------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------
4 SOURCE OF FUNDS*
IN
- --------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) [ ]
- --------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- ---------------------------------------------------------------------
NUMBER OF SOLE VOTING POWER
SHARES 7 -0-
BENEFICIALLY --------------------------------
OWNED BY EACH 8 SHARED VOTING POWER
REPORTING 3,804,508**
PERSON WITH --------------------------------
9 SOLE DISPOSITIVE POWER
206,509**
---------------------------------
10 SHARED DISPOSITIVE POWER
-0-
- ----------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,804,508**
- ----------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
- ----------------------------------------------------------------------
PERCENT OF CLASS REPRESENTED
13 BY AMOUNT IN ROW (11)
34.4%**
- ----------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
00
- ----------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
**SEE DESCRIPTION PRESENTED UNDER THE CAPTION
"ITEM 5. INTEREST IN SECURITIES OF THE ISSUER"
Page 3 of 13 Pages
<PAGE>
SCHEDULE 13D
CUSIP No. 448515 10 6
- --------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. or I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
J. Erik Hvide, as trustee of the Hvide Trust I (See Item 2)
- --------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [ ]
- --------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO
- --------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) [ ]
- --------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- ---------------------------------------------------------------------
NUMBER OF SOLE VOTING POWER
SHARES 7 -0-
BENEFICIALLY --------------------------------
OWNED BY EACH 8 SHARED VOTING POWER
REPORTING 3,804,508**
PERSON WITH --------------------------------
9 SOLE DISPOSITIVE POWER
1,454,383**
---------------------------------
10 SHARED DISPOSITIVE POWER
-0-
- ----------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,804,508**
- ----------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
- ----------------------------------------------------------------------
PERCENT OF CLASS REPRESENTED
13 BY AMOUNT IN ROW (11)
34.4%**
- ----------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
00
- ----------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
**SEE DESCRIPTION PRESENTED UNDER THE CAPTION
"ITEM 5. INTEREST IN SECURITIES OF THE ISSUER"
Page 4 of 13 Pages
<PAGE>
SCHEDULE 13D
CUSIP No. 448515 10 6
- --------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. or I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
J. Erik Hvide, as trustee of the Hvide Trust II (See Item 2).
- --------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [ ]
- --------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO
- --------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) [ ]
- --------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- ---------------------------------------------------------------------
NUMBER OF SOLE VOTING POWER
SHARES 7 -0-
BENEFICIALLY --------------------------------
OWNED BY EACH 8 SHARED VOTING POWER
REPORTING 3,804,508**
PERSON WITH --------------------------------
9 SOLE DISPOSITIVE POWER
110,215**
---------------------------------
10 SHARED DISPOSITIVE POWER
-0-
- ----------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,804,508**
- ----------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
- ----------------------------------------------------------------------
PERCENT OF CLASS REPRESENTED
13 BY AMOUNT IN ROW (11)
34.4%**
- ----------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
00
- ----------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
**SEE DESCRIPTION PRESENTED UNDER THE CAPTION
"ITEM 5. INTEREST IN SECURITIES OF THE ISSUER"
Page 5 of 13 Pages
<PAGE>
SCHEDULE 13D
CUSIP No. 448515 10 6
- --------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. or I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Metropolitan Life Insurance Company
- --------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [ ]
- --------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO
- --------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) [ ]
- --------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
New York
- ---------------------------------------------------------------------
NUMBER OF SOLE VOTING POWER
SHARES 7 -0-
BENEFICIALLY --------------------------------
OWNED BY EACH 8 SHARED VOTING POWER
REPORTING 3,804,508**
PERSON WITH --------------------------------
9 SOLE DISPOSITIVE POWER
71,820**
---------------------------------
10 SHARED DISPOSITIVE POWER
-0-
- ----------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,804,508**
- ----------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
- ----------------------------------------------------------------------
PERCENT OF CLASS REPRESENTED
13 BY AMOUNT IN ROW (11)
34.4%**
- ----------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IC
- ----------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
**SEE DESCRIPTION PRESENTED UNDER THE CAPTION
"ITEM 5. INTEREST IN SECURITIES OF THE ISSUER"
Page 6 of 13 Pages
<PAGE>
SCHEDULE 13D
CUSIP No. 448515 10 6
- --------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. or I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
OGP II, L.P.
- --------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [ ]
- --------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO
- --------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) [ ]
- --------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- ---------------------------------------------------------------------
NUMBER OF SOLE VOTING POWER
SHARES 7 -0-
BENEFICIALLY --------------------------------
OWNED BY EACH 8 SHARED VOTING POWER
REPORTING 3,804,508**
PERSON WITH --------------------------------
9 SOLE DISPOSITIVE POWER
67,596**
---------------------------------
10 SHARED DISPOSITIVE POWER
-0-
- ----------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,804,508**
- ----------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
- ----------------------------------------------------------------------
PERCENT OF CLASS REPRESENTED
13 BY AMOUNT IN ROW (11)
34.4%**
- ----------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
PN
- ----------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
**SEE DESCRIPTION PRESENTED UNDER THE CAPTION
"ITEM 5. INTEREST IN SECURITIES OF THE ISSUER"
Page 7 of 13 Pages
<PAGE>
Item 1. Security and Issuer.
This Statement relates to the Class A common stock, par value
$0.001 per share (the "Class A Common Stock"), and the Class B Common
Stock, par value $0.001 per share (the "Class B Common Stock", and
collectively with the Class A Common Stock, the "Common Stock"), of
Hvide Marine Incorporated, a Florida corporation (the "Company"). The
Class A Common Stock and the Class B Common Stock vote together on all
matters submitted to a vote of shareholders. The Class A Common Stock
has one vote per share and the Class B Common Stock has ten votes per
share. Shares of Class B Common Stock are freely convertible into
shares of Class A Common Stock on a one-for-one basis.
The Company's principal executive offices are located at
2200 Eller Drive, Fort Lauderdale, Florida 33316.
Item 2. Identity and Background.
Pursuant to Rule 13d-1(f) of Regulation 13D of the General
Rules and Regulations under the Securities Exchange Act of 1934 (the
"Act"), this Statement is being filed by (i) Clipper Capital
Associates, Inc. ("Clipper"); (ii) OGP II, L.P. ("Olympus"); (iii)
Metropolitan Life Insurance Company ("Met"); (iv) Mr. J. Erik Hvide;
(v) J. Erik Hvide, as trustee of that certain trust created by the
Declaration of Trust dated June 23, 1978, for Elsa Hvide and the
others named therein ("Hvide Trust I"); and (vi) J. Erik Hvide as
trustee of that certain trust created by the Declaration of Trust
dated June 23, 1978 for Elsa Hvide Sowrey and the others named therein
("Hvide Trust II"). The foregoing entities are hereinafter referred to
as the "Reporting Persons". The Reporting Persons are making this
single joint filing pursuant to Rule 13d-1(f)(1).
Clipper is a Delaware corporation with its principal executive
offices located at 12 East 49th Street, New York, New York 10017. At
present, the business of Clipper consists of performing the function
of, and serving as, the general partner of Clipper Capital Associates,
L.P. ("Clipper L.P."), which in turn is the general partner of certain
private investment funds. Clipper L.P. directly owns certain of the
shares of Common Stock and is the general partner of certain limited
partnerships (collectively with Clipper L.P., the "Clipper
Partnerships"), including Clipper/Merchant HMI, L.P. , Clipper/Merban,
L.P., Clipper/Hercules L.P. and Clipper/Park HMI, L.P., each of which
owns certain of the shares of Common Stock. Mr. Robert B. Calhoun,
Jr., a U.S. citizen whose business address is the same as Clipper's,
owns all of the outstanding stock of Clipper. The attached Schedule
I is a list of the directors and executive officers of Clipper; each
of the named persons is a U.S. citizen.
Met is a mutual insurance company with principal offices at
334 Madison Avenue, P.O. Box 633, Convent Station, NJ 07961-0633. Met
principally provides life insurance and annuity products and pension,
pension-related and investment-related services to individuals,
corporations and other institutions Met and its insurance subsidiaries
also provide nonmedical health, disability and property and casualty
insurance. Through its noninsurance subsidiaries, Met also offers
investment management and advisory services and commercial finance.
The attached Schedule II is a list of the directors and executive
officers of Met; each of the named persons is a U.S. citizen.
Olympus is a Delaware limited partnership with its principal
executive offices located at Metro Center, One Station Place,
Stamford, CT 06902. At present, the business of Olympus consists of
performing the function of, and serving as, the general partner of
certain limited partnerships, including Olympus Growth Fund II, L.P.,
a private investment fund, which owns certain of the shares of Common
Stock. Robert S. Morris, Louis J. Mischianti and James A Conroy are,
through wholly-owned limited liability entities, the general partners
of Olympus. Mssrs. Morris, Mischianti and Conroy are U.S. citizens
whose business address is Olympus's offices.
J. Erik Hvide is the president and chief executive officer of
the Company. He is a U.S. citizen. He is also the successor trustee of
Hvide Trust I and Hvide Trust II.
Page 8 of 13 Pages
<PAGE>
During the last five years, none of the Reporting Persons or,
to the knowledge of any Reporting Person, any of the persons named in
this Item 2, has been convicted in a criminal proceeding (excluding
traffic violations or similar misdemeanors) or has been a party to a
civil proceeding of a judicial or administrative body of competent
jurisdiction and as a result of such proceeding was or is subject to a
judgment, decree or final order enjoining future violations of, or
prohibiting or mandating activities subject to, federal or state
securities laws or finding any violation with respect to such laws.
The information with respect to a particular Reporting Person
and its executive officers, directors and controlling persons
contained herein is given solely by such Reporting Person and no other
Reporting Person has responsibility for the accuracy or completeness
of information supplied by such Reporting Person.
Item 3. Source and Amount of Funds or Other Consideration.
On September 12, 1996, pursuant to that certain
Recapitalization Agreement dated August 8, 1996 (the "Recapitalization
Agreement"), to which the Company and the Reporting Persons are
parties, Clipper (as the general partner of Clipper L.P.) acquired
beneficial ownership of 1,244,002 shares of Common Stock issued upon
the conversion of $13,883,062 million aggregate principal amount of
the Company's then-outstanding 8% Junior Subordinated Notes due 2014.
On September 30, 1994, Clipper, Met and Olympus became the
beneficial owners of the other shares of Common Stock described in
Item 5 as being beneficially owned by them in connection with the
Company's issuance of $25,000,000 of 12% Senior Subordinated Notes due
2004 and $25,000,000 of 8% Junior Subordinated Notes due 2014.
Item 4. Purpose of Transaction.
Although the Reporting Persons believe that the shares of
Common Stock that they beneficially own are an attractive investment
at this time, they continue to monitor and evaluate their investment
in the Company in light of pertinent factors, including the following:
(i) the Company's business, operations, assets, financial condition
and prospects, (ii) market, general economic and other conditions; and
(iii) other investment opportunities available to the Reporting
Persons. In light of the foregoing factors, and the plans and
requirements of the Reporting Persons from time to time, the Reporting
Persons may determine to (i) acquire additional securities of the
Company, (ii) dispose of some or all of the securities of the Company
that they beneficially own, (iii) increase or decrease their
participation in the determination of the Company's management and
policies or (iv) propose a merger, consolidation, joint venture or
other business combination involving the Company or its subsidiaries,
a sale or purchase of assets or securities of the Company or its
subsidiaries, a recapitalization, reorganization or liquidation
involving the Company or its subsidiaries or other similar actions.
The Reporting Persons reserve the right, either individually or in any
combination among themselves or together with one or more of the other
stockholders of the Company, to determine in the future to take or
cause to be taken one or more of the foregoing actions. Any sale or
disposition of shares of Common Stock by the Reporting Persons may be
made by means of privately negotiated sales, registered offerings or
other transactions or by seeking to cause the Company to effect one or
more of the transactions set forth above. In addition, the Reporting
Persons may determine to increase their interest in the Company
through one or more transactions in the open market.
Except as described in Item 6 below, the Reporting Persons do
not have either plans or proposals related to or that would result in:
(i) the acquisition by any person of additional securities of the
Company; (ii) an extraordinary corporate transaction, such as a
merger, reorganization or liquidation, involving the Company or any of
its subsidiaries; (iii) a sale or transfer of a material amount of the
assets of the Company or of any of its subsidiaries; (iv) any change
in the present board of directors or management of the Company or any
of its subsidiaries, including any plans or proposals to change the
number or term of directors or to fill any existing vacancies on the
board; (v) any material change in the present capitalization or
dividend policy of the Company; (vi) any other material change in the
Company's business or corporate structure; (vii) any changes in the
Company's charter, by-laws or instruments corresponding
Page 9 of 13 Pages
<PAGE>
thereto or other actions that may impede the acquisition of control of
the Company by any persons; (viii) causing the shares of Common Stock
to be delisted from a national securities exchange or to cease to be
authorized to be quoted in an inter-dealer quotation system of a
registered national securities association; (ix) any class of equity
securities of the Company becoming eligible for termination of
registration pursuant to Section 12(g)(4) of the Act; or (x) any
action similar to any of those enumerated above. The Reporting Persons
reserve the right, either individually or in any combination among
themselves or together with one or more of the other stockholders of
the Company, to determine in the future to take or cause to be taken
one or more of the foregoing actions.
For a description of certain contracts and agreements among
the Company, the Reporting Persons and certain other stockholders of
the Company, see Item 6.
Item 5. Interest in Securities of the Company.
In accordance with Rule 13d-5(b)(1) of the General Rules and
Regulations of the Act, Clipper may be deemed to beneficially own
3,804,508 shares of Common Stock, which constitutes approximately
34.4% of the outstanding shares of Common Stock. Clipper has sole
voting power with respect to none of the shares of Common Stock; has
shared voting power (as general partner of Clipper L.P.) with respect
to 3,804,508 of the shares of Common Stock (constituting 82.6% of the
total voting power of the Common Stock) as a result of the Agreement
Among Shareholders dated August 14, 1996 (the "Shareholders
Agreement") among the Clipper Partnerships, Met, Olympus Growth Fund
II, L.P., J. Erik Hvide, the Hvide Trust I and Hvide Trust II; has
sole dispositive power with respect to 1,870,320 of the shares of
Common Stock, subject to certain limitations under the Shareholders
Agreement; and has shared dispositive power with respect to none of
the shares of Common Stock. Pursuant to that certain Amended and
Restated CSI Agreement dated August 14, 1996 (the "CSI Agreement"),
between the Company and the Clipper Partnerships, the Company has
agreed to issue additional shares of Common Stock to the Clipper
Partnerships on June 10, 1997. Pursuant to the Shareholders Agreement,
J. Erik Hvide, Hvide Trust I and Hvide Trust II have agreed to
contribute to the Company the number of shares of Common Stock the
Company issues pursuant to the CSI Agreement.
In accordance with Rule 13d-5(b)(1) of the General Rules and
Regulations of the Act, Met may be deemed to beneficially own
3,804,508 shares of Common Stock, which constitutes approximately
34.4% of the outstanding shares of Common Stock. Met has sole voting
power with respect to none of the shares of Common Stock; has shared
voting power with respect to 3,804,508 of the shares of Common Stock
(constituting 82.6% of the total voting power of the Common Stock) as
a result of the Shareholders Agreement; has sole dispositive power
with respect to 71,820 of the shares of Common Stock, subject to
certain limitations under the Shareholders Agreement; and has shared
dispositive power with respect to none of the shares of Common Stock.
In accordance with Rule 13d-5(b)(1) of the General Rules and
Regulations of the Act, Olympus may be deemed to beneficially own
3,804,508 shares of Common Stock, which constitutes approximately
34.4% of the outstanding shares of Common Stock. Olympus has sole
voting power with respect to none of the shares of Common Stock; has
shared voting power (as general partner of Olympus Growth Fund II,
L.P.) with respect to 3,804,508 of the shares of Common Stock
(constituting 82.6% of the total voting power of the Common Stock) as
a result of the Shareholders Agreement; has sole dispositive power
with respect to 67,596 of the shares of Common Stock, subject to
certain limitations under the Shareholders Agreement; and has shared
dispositive power with respect to none of the shares of Common Stock.
In accordance with Rule 13d-5(b)(1) of the General Rules and
Regulations of the Act, J. Erik Hvide may be deemed to beneficially
own 3,804,508 shares of Common Stock, which constitutes approximately
34.4% of the outstanding shares of Common Stock. Mr. Hvide has sole
voting power with respect to none of the shares of Common Stock; has
shared voting power with respect to 3,804,508 of the shares of Common
Stock (constituting 82.6% of the total voting power of the Common
Stock) as a result of the Shareholders Agreement; has sole dispositive
power with respect to 206,509 of the shares of
Page 10 of 13 Pages
<PAGE>
Common Stock, subject to certain limitations under the Shareholders
Agreement; and has shared dispositive power with respect to none of
the shares of Common Stock.
In accordance with Rule 13d-5(b)(1) of the General Rules and
Regulations of the Act, Hvide Trust I may be deemed to beneficially
own 3,804,508 shares of Common Stock, which constitutes approximately
34.4% of the outstanding shares of Common Stock. Hvide Trust I has
sole voting power with respect to none of the shares of Common Stock;
has shared voting power with respect to 3,804,508 of the shares of
Common Stock (constituting 82.6% of the total voting power of the
Common Stock) as a result of the Shareholders Agreement; has sole
dispositive power with respect to 1,454,383 of the shares of Common
Stock, subject to certain limitations under the Shareholders
Agreement; and has shared dispositive power with respect to none of
the shares of Common Stock.
In accordance with Rule 13d-5(b)(1) of the General Rules and
Regulations of the Act, Hvide Trust II may be deemed to beneficially
own 3,804,508 shares of Common Stock, which constitutes approximately
34.4% of the outstanding shares of Common Stock. Hvide Trust II has
sole voting power with respect to none of the shares of Common Stock;
has shared voting power with respect to 3,804,508 of the shares of
Common Stock (constituting 82.6% of the total voting power of the
Common Stock) as a result of the Shareholders Agreement; has sole
dispositive power with respect to 110,215 of the shares of Common
Stock, subject to certain limitations under the Shareholders
Agreement; and has shared dispositive power with respect to none of
the shares of Common Stock.
Each of the Reporting Persons disclaims beneficial ownership
of all shares of Common Stock beneficially owned by any other
Reporting Person.
There have been no transactions by the Reporting Persons in
the shares of Common Stock during the past 60 days, other than as
described above.
Item 6. Contracts, Arrangements, Understandings or Relationships
with Respect to Securities of the Company.
As noted in Item 5, the Clipper Partnerships, Met, Olympus, J.
Erik Hvide, Hvide Trust I and Hvide Trust II are parties to the
Shareholders Agreement, pursuant to which each of them has agreed to
vote all shares of Common Stock owned by it to elect one, two or three
nominees (as determined pursuant to the Shareholder Agreement)
designated by Clipper L.P and eight nominees designated by J. Erik
Hvide to the Company's board of directors. In addition, pursuant to
the Shareholders Agreement (a) such persons have granted to each other
certain rights of first refusal and certain rights of first
opportunity with respect to the shares of Common Stock, (b) the
Clipper Partnerships, Met and Olympus have agreed not to transfer any
Class A Common Stock to any person that is not an Investor Shareholder
(as defined) or a member of the Hvide Group (as defined), unless at
the time of transfer such transferor owns no shares of Class B Common
Stock, (c) the parties thereto agree not to transfer any Common Stock
(unless in a registered public sale or pursuant to Rule 144 under the
Securities Act of 1933) unless the transferee becomes a party to the
Shareholders Agreement, (d) J. Erik Hvide, Hvide Trust I and Hvide
Trust II agree not to transfer any Common Stock to a person that is
not a U.S. citizen, (e) J. Erik Hvide, Hvide Trust I and Hvide Trust
II agree to contribute to the Company a number of shares of Common
Stock equal to the number of shares issued by the Company pursuant to
the CSI Agreement, and (f) after the contribution referred to in
clause (e) above, the Clipper Partnerships, Met and Olympus agree to
convert shares of Class B Common Stock into shares of Class A Common
Stock to the extent necessary to provide J. Erik Hvide, Hvide Trust I
and Hvide Trust II with one vote more voting power than the Clipper
Partnerships, Met and Olympus have at such time.
On August 14, 1996, the Company completed the initial public
offering of 7,000,000 shares of its Common Stock. On September 12,
1996, an additional 159,000 shares of the Common Stock were sold to
the public in connection with the exercise of the Underwriters'
over-allotment option. In connection therewith, all of the shares of
Common Stock owned by the Reporting Persons became subject to
lock-up agreements (the "Lock-up Agreements") restricting, subject
to certain exceptions, the sale of such shares of Common Stock for a
period of 180 (or, in the case of the Clipper Partnerships, 365
days) days after the commencement of the initial public offering.
Page 11 of 13 Pages
<PAGE>
The Company and the Clipper Partnerships are parties to that
certain Amended and Restated Contingent Share Issuance Agreement dated
August 14, 1996 (the "CSI Agreement"), pursuant to which the Company
has agreed to issue additional shares of Common Stock to the Clipper
Partnerships on June 10, 1997 (300 days after the closing of the
initial public offering). Pursuant to the Shareholders Agreement, J.
Erik Hvide, Hvide Trust I and Hvide Trust II have agreed to contribute
to the Company the number of shares of Common Stock the Company issues
pursuant to the CSI Agreement.
The Company, the Clipper Partnerships, Met and Olympus are
parties to that certain Registration Rights Agreement dated August 14,
1996 (the "Registration Rights Agreement"), pursuant to which the
Company has granted certain registration rights with respect to the
Common Stock owned by Clipper, Met and Olympus.
Item 7. Material to be Filed as Exhibits.
The Shareholders Agreement is attached hereto as Exhibit A.
The CSI Agreement is attached hereto as Exhibit B.
The Registration Rights Agreement is attached hereto as
Exhibit C.
Page 12 of 13 Pages
<PAGE>
Signatures
After reasonable inquiry and to the best of his knowledge and
belief, each of the undersigned certifies that the information set
forth in this Statement is true, complete and correct.
Date: September 20, 1996
CLIPPER CAPITAL ASSOCIATES, INC.,
by: /s/ Daniel V. Calillane
------------------------------
Name: Daniel V. Cahillane
Title: Treasurer and Secretary
METROPOLITAN LIFE INSURANCE COMPANY,
by: /s/ Michael J. Mazzola
-------------------------------
Name: Michael J. Mazzola
Title: Assistant Vice-President
OGP II, L.P., by its general partner
LJM, LLC,
by: /s/ Louis J. Mischianti
-------------------------------
Name: Louis J. Mischianti
Title: Member
/s/ J. Erik Hvide
-----------------------------------
J. Erik Hvide
J. ERIK HVIDE, as trustee of the trust
created by the Declaration of Trust
dated June 23, 1978, for Elsa Hvide and
the others named therein,
by: /s/ J. Erik Hvide
--------------------------
Name: J. Erik Hvide
Title: Trustee
J. ERIK HVIDE, as trustee of the trust
created by the Declaration of Trust
dated June 23, 1978, for Elsa Hvide
Sowrey and the others named therein,
by: /s/ J. Erik Hvide
---------------------------
Name: J. Erik Hvide
Title: Trustee
Page 13 of 13 Pages
<PAGE>
Schedule I
Directors and Executive Officers of
Clipper Capital Associates, Inc.
Name Business and Address
Daniel V. Cahillane Clipper Capital Associates
Robert B. Calhoun 12 East 49th Street
New York, NY 10017
<PAGE>
Schedule II
Directors and Executive Officers of
Metropolitan Life Insurance Company
Executive Officers:
Harry P. Kamen Gary A. Beller C. Robert Henrikson
Chairman, President Executive Vice-President Executive Vice-President
and Chief Executive and Chief Legal Officer
Officer
Ted Athanassiades Robert H. Benmosche John D. Moynahan, Jr.
Vice-Chairman of Executive Vice-President Executive Vice-President
the Board
Gerald Clark Catherine A. Rein
Senior Executive Executive Vice-President
Vice-President and
Chief Investment
Officer
Stewart G. Nagler John H. Tweedie
Senior Executive Executive Vice-President
Vice-President and
Chief Financial
Officer
Directors:
Allen E. Murray Richard J. Mahoney Curtis H. Barnette
Retired Chairman of Chairman of the Chairman of the
the Board and Chief Executive Committee Board and Chief
Executive Officer Monsanto Company Executive Officer
Mobil Corporation Bethlehem Steel Corporation
John B. M. Place James R. Houghton Joan Ganz Cooney
Former Chairman of Chairman of the Board and Chairman,
the Board Chief Executive Officer Executive Committee
Crocker National Corning Incorporated Children's Television
Corporation Workshop
William S. Sneath Ted Athanassiades
Retired Chairman of Vice-Chairman of
the Board the Board
Union Carbide Metropolitan Life
Corporation Insurance Company
Robert G. Schwartz Ruth J. Simmons, PH.D. Harry P. Kamen
Retired Chairman of President Chairman, President and
the Board Smith College Chief Executive Officer
President and Chief Metropolitan Life
Executive Officer Insurance Company
Metropolitan Life
Insurance Company
Hugh B. Price Helene L. Kaplan John J. Phelan, Jr.
President and Chief Of Counsel Retired Chairman and
Executive Officer Skadden, Arps, Slate, Chief Executive Officer
National Urban Meagher & Flom New York Stock
League, Inc. Exchange, Inc.
EXHIBIT A
AGREEMENT AMONG SHAREHOLDERS dated as of
August 14, 1996, among the shareholders of HVIDE MARINE
INCORPORATED, a Florida corporation (the "Company"),
identified on the signature pages hereto (the
"Shareholders").
W I T N E S S E T H:
WHEREAS the Company, formerly known as Hvide Corp., was
the surviving entity in a merger (which was consummated immediately
prior to the execution and delivery of this Agreement) with the
former Hvide Marine Incorporated and in connection therewith assumed
the name Hvide Marine Incorporated;
WHEREAS the Company and the Shareholders are parties to
that certain Shareholders Agreement dated as of September 30, 1994
(the "Existing Shareholders Agreement"), that provides the
Shareholders and their affiliates with certain special rights;
WHEREAS the Company and the Shareholders are parties to
that certain Recapitalization Agreement dated as of August 8, 1996
(as amended, supplemented, replaced or otherwise modified from time
to time, the "Recapitalization Agreement"), which requires that the
Existing Shareholders Agreement be terminated and replaced with an
agreement among shareholders in the form hereof at or prior to the
closing of the Initial Public Offering (as hereinafter defined);
WHEREAS the other conditions precedent specified in the
Recapitalization Agreement have been satisfied;
NOW, THEREFORE, in consideration of the premises and
agreements contained in this Agreement, and for good and valuable
consideration, the receipt and sufficiency of which
<PAGE>
are hereby acknowledged, the parties, intending to be legally bound,
hereby agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Interpretation. For all purposes of this
Agreement and any agreement executed in connection with this
Agreement, except as otherwise expressly provided or unless the
context otherwise requires:
(a) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well
as the singular; and
(b) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Agreement as a whole and
not to any particular Article, Section or other subdivision.
SECTION 1.02. Definitions.
"Affiliate" of any specified person means (a) any other
person which, directly or indirectly, is in control of, is
controlled by or is under common control with such specified person,
(b) any other person who is a director or officer (i) of such
specified person, (ii) of any subsidiary of such specified person or
(iii) of any person described in clause (a) above and (c) if such
specified person is a partnership, any partner included in such
partnership. For purposes of this definition, control of a person
means the power, direct or indirect, to direct or cause the
direction of the management and policies of such person whether
through the ownership of Capital Stock of such person then
outstanding and normally entitled to vote in the election of
directors of such person, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the
foregoing.
"Articles" means the Amended and Restated Articles of
Incorporation of the Company.
"Board of Directors" means the Board of Directors of the
Company.
<PAGE>
"Capital Stock" of any person means any and all shares,
interests, rights to purchase, warrants, options, contingent share
certificates, participations or other equivalents of or interests in
(however designated) equity of such person, but excluding any debt
securities convertible into or exchangeable for such equity.
"Citizen" has the meaning provided in the Articles.
"Class A Common Stock" means the Class A Common Stock,
$0.001 par value, of the Company, which has one vote per share.
"Class B Common Stock" means the Class B Common Stock,
$0.001 par value, of the Company, which has ten votes per share.
"Clipper" means Clipper Capital Associates, L.P., a
Delaware limited partnership.
"Common Stock" means the Class A Common Stock and the
Class B Common Stock.
"Contingent Share Issuance Agreement" means that certain
Amended and Restated Contingent Share Issuance Agreement (including
the Schedule and Exhibits attached thereto) dated as of the date
hereof, among the Company and the Shareholders, as the same may be
amended, supplemented, replaced or otherwise modified from time to
time.
"Exchange Act" means the Securities Exchange Act of 1934,
as amended.
"Hvide Group" means the Principal Shareholder and any
person related to him by kinship or marriage (including Hans J.
Hvide), trusts or similar arrangements established solely on the
behalf of one or more of them and partnerships and other entities
that are wholly owned by them and that remain wholly owned by them.
"Hvide Group Shareholders" means the shareholders
identified in Schedule 1 attached hereto and any transferees that
are members of the Hvide Group.
"Initial Public Offering" means the offering or sale of
the Class A Common Stock of the Company, par value $0.001 per share,
pursuant to a Registration Statement
<PAGE>
(No. 33-78166) filed by the Company with the SEC, and any amendments
or supplements thereto, including post-effective amendments, in each
case including the Prospectus contained therein, all exhibits
thereto and all documents and other materials incorporated by
reference therein.
"Investor Shareholders" means Clipper, Clipper/Merchant
HMI, L.P., a Delaware limited partnership, Clipper/Park HMI, L.P., a
Delaware limited partnership, Clipper/Merban, L.P., a Delaware
limited partnership, and Clipper/Hercules L.P., a Delaware limited
partnership, Olympus Growth Fund II, L.P., a Delaware limited
partnership, Metropolitan Life Insurance Company, a New York
corporation, each of their permitted successors and assigns and each
of their Affiliates.
"Jones Act" means Section 27 of the Merchant Marine Act,
1920, 46 U.S.C. ss.883, as amended.
"person" means any individual, corporation, partnership,
joint venture, association, joint-stock company, trust,
unincorporated organization, government or any agency or political
subdivision thereof or any other entity.
"Primary Economic Interest" of any person means, at any
time, the total number of issued and outstanding shares of Common
Stock owned by such person at such time.
"Principal Shareholder" means Mr. J. Erik Hvide.
"Rule 144" means Rule 144 (or any replacement therefor)
promulgated under the Securities Act.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as
amended.
"Subsidiary" means a corporation or other entity
(including a partnership) of which a majority of the Capital Stock
having voting power under ordinary circumstances to elect a majority
of the board of directors or other voting interests are owned by (a)
the Company, (b) the Company and one or more Subsidiaries or (c) one
or more Subsidiaries.
<PAGE>
"Total Primary Economic Interests in the Company" means,
at any time, the total number of shares of Common Stock issued and
outstanding at such time.
"Total Voting Power of the Company" means the total number
of votes that may be cast in the election of directors of the
Company at any meeting of shareholders of the Company if all Voting
Securities (assuming full conversion, exchange or exercise of all
securities (including rights, warrants, options and contingent share
certificates, but specifically excluding the conversion of any
shares of Class B Common Stock into shares of Class A Common Stock
unless such shares have been so converted prior to any such vote)
convertible into, exchangeable for or exercisable for any securities
of the Company entitled to vote generally in the election of
directors of the Company) were present and voted at such meeting,
other than votes that may be cast only upon the happening of a
contingency.
"Voting Power" of any person means the total number of
votes that may be cast in the election of directors of the Company
at any meeting of the shareholders of the Company by the Voting
Securities owned by such person (assuming full conversion, exchange
or exercise (whether or not presently convertible, exchangeable or
exercisable) of all securities (including rights, warrants, options
and contingent share certificates) convertible into, exchangeable
for or exercisable for any securities of the Company entitled to
vote generally in the election of directors of the Company), other
than votes that may be cast only upon the happening of a
contingency.
"Voting Securities" means the Class A Common Stock, the
Class B Common Stock and any other securities of the Company
entitled to vote generally in the election of directors of the
Company, and any other securities (including rights, warrants,
options and contingent share certificates) convertible into,
exchangeable for or exercisable for any Class A Common Stock, Class
B Common Stock or other securities referred to above (whether or not
presently convertible, exchangeable or exercisable).
<PAGE>
ARTICLE II
Representations and Warranties
of the Investor Shareholders
Each Investor Shareholder, severally and not jointly,
represents and warrants to each of the Hvide Group Shareholders as
follows:
SECTION 2.01. Due Authorization. Each Investor Shareholder
has full power and authority, and the legal right, to make, deliver
and perform this Agreement and to consummate the transactions
contemplated hereby, and all action on the part of such Investor
Shareholder necessary for the authorization, execution and delivery
of this Agreement and the performance of all its obligations
hereunder has been taken, and this Agreement constitutes a valid and
legally binding obligation of such Investor Shareholder, enforceable
against such Investor Shareholder in accordance with its terms.
SECTION 2.02. No Conflicts. Neither the execution and
delivery of this Agreement, nor the consummation of any of the
transactions contemplated herein, nor the compliance with the terms
and provisions hereof violates, conflicts with or will result in the
breach of, or constitute a default or an event that with notice,
lapse of time or both would constitute a default under any material
agreement or instrument to which such Investor Shareholder is a
party or which is binding on such Investor Shareholder.
ARTICLE III
Representations and Warranties
of the Hvide Group Shareholders
Each Hvide Group Shareholder, severally and not jointly,
represents and warrants to each of the Investor Shareholders as
follows:
SECTION 3.01. Due Authorization. Each Hvide Group
Shareholder has full power and authority, and the legal right, to
make, deliver and perform this Agreement and to consummate the
transactions contemplated hereby, and all action on the part of such
Hvide Group Shareholder necessary for the authorization, execution
and delivery of this Agreement and the performance of all
obligations of such
<PAGE>
Hvide Group Shareholder hereunder has been taken, and this Agreement
constitutes a valid and legally binding obligation of such Hvide
Group Shareholder, enforceable against such Hvide Group Shareholder
in accordance with its terms.
SECTION 3.02. No Conflicts. Neither the execution and
delivery of this Agreement nor the consummation of any of the
transactions contemplated herein, nor the compliance with the terms
and provisions hereof violates, conflicts with or will result in the
breach of, or constitute a default or an event that with notice,
lapse of time or both would constitute a default under any material
agreement or instrument to which such Hvide Group Shareholder is a
party or which is binding on such Hvide Group Shareholder.
SECTION 3.03. Approvals. No notice to, order, consent,
approval, license, authorization, or validation of, or filing,
recording or registration with, or exemption by, any governmental or
public body or authority, or any subdivision thereof, or any person,
is required to authorize, or is required in connection with, the
execution, delivery and performance of this Agreement by any of the
Hvide Group Shareholders.
SECTION 3.04. Shares Outstanding. Immediately prior to the
consummation of the Initial Public Offering, the Hvide Group
Shareholders will hold the outstanding Common Stock of the Company
in the respective amounts set forth in Schedule 1 hereto, free and
clear of any liens, claims, options, charges or other encumbrances,
and J. Erik Hvide, individually or as successor trustee for the
Hvide Trusts, has full power and authority to direct on behalf of
each Hvide Group Shareholder all actions required hereunder.
ARTICLE IV
Certain Rights of the Investor Shareholders and the
Principal Shareholder
SECTION 4.01. Nominations to the Board of Directors. For
so long as the aggregate Primary Economic Interest of the Investor
Shareholders is at least 5% of the Total Primary Economic Interests
in the Company, then:
(a) Each Investor Shareholder and each Hvide Group
Shareholder agrees that it will take such actions
<PAGE>
as shall be reasonably necessary to demand, request or
convene a meeting of the shareholders of the Company, and
that at every meeting of the shareholders of the Company,
however called, and at every adjournment thereof, or in
connection with any written consent of the shareholders of
the Company, it shall vote or cause to be voted all shares
of Voting Securities now held or hereafter acquired by it
or an Affiliate controlled by it, so as in each case to
elect and to continue in office a Board of Directors
consisting entirely of the following:
(i) if, at the time of any such vote, the
aggregate Primary Economic Interest of the Investor
Shareholders is at least 5%, but less than 10%, of
the Total Primary Economic Interests in the Company,
one nominee of the Investor Shareholders;
(ii) if, at the time of any such vote, the
aggregate Primary Economic Interest of the Investor
Shareholders is at least 10%, but less than 20%, of
the Total Primary Economic Interests in the Company,
two nominees of the Investor Shareholders;
(iii) if, at the time of any such vote, the
aggregate Primary Economic Interest of the Investor
Shareholders is 20% or more of the Total Primary
Economic Interests in the Company, three nominees of
the Investor Shareholders; and
(iv) eight nominees of the Principal
Shareholder, of which no more than four shall be
employees of the Company or any of its Subsidiaries
or members of the Hvide Group and the remainder of
which shall be independent of the Principal
Shareholder, the Company and its Subsidiaries.
(b) All nominations to the Board of Directors to be
made by the Investor Shareholders pursuant to this Section
4.01 shall be made by Clipper on behalf of itself and the
other Investor Shareholders.
(c) If at any time Clipper shall notify the Hvide
Group Shareholders of the Investor Shareholders' desire to
remove (with or without cause) any director of the
<PAGE>
Company previously nominated by the Investor Shareholders,
the Hvide Group Shareholders shall vote or cause to be
voted all the shares of Voting Securities owned or held of
record by them, and take such other actions as may be
reasonably necessary, so as to remove such director. No
such removal of an individual nominated pursuant to this
Section 4.01 shall affect any of the Investor
Shareholders' rights to nominate a different individual
pursuant to this Section 4.01.
(d) If at any time any director previously nominated
by the Investor Shareholders ceases to serve on the Board
of Directors (whether by reason of death, disability,
resignation, removal or otherwise), the Investor
Shareholders shall immediately be entitled to nominate a
successor director to fill the vacancy created thereby.
The Hvide Group Shareholders shall vote or cause to be
voted all the shares of Voting Securities owned or held of
record by them, and take such other actions as may be
reasonably necessary, so as to elect such director.
(e) If any of the Hvide Group Shareholders fails or
refuses to vote its Voting Securities as required by this
Section 4.01, Clipper shall have an irrevocable proxy
coupled with an interest to vote those securities on
behalf of the Investor Shareholders in accordance with
this Section 4.01, and each Hvide Group Shareholder hereby
grants to Clipper such irrevocable proxy coupled with an
interest. If any of the Investor Shareholders fails or
refuses to vote its Voting Securities as required by this
Section 4.01, the Principal Shareholder shall have an
irrevocable proxy coupled with an interest to vote those
securities on behalf of the Hvide Group Shareholders in
accordance with this Section 4.01, and each Investor
Shareholder hereby grants to the Principal Shareholder
such irrevocable proxy coupled with an interest.
(f) The nominees of the Investor Shareholders elected
to the Board of Directors pursuant to Section 4.01(a)
shall be U.S. citizens within the meaning of Section 2 of
the Shipping Act, 1916, as amended.
(g) Each Investor Shareholder and each Hvide Group
Shareholder hereby agrees (i) that Clipper and
<PAGE>
Olympus Growth Fund II, L.P. shall each be entitled to
appoint one of the observers to meetings of the Board of
Directors (and the committees thereof) that the holders of
the Class B Common Stock are entitled to appoint pursuant
to the Articles and (ii) to vote or cause to be voted all
the shares of Voting Securities owned or held of record by
it and take such other actions as may be reasonably
necessary to so cause such appointments.
(h) Except as otherwise provided in Section 4.01(b),
all actions by the Investor Shareholders pursuant to this
Section 4.01 shall require the direction or consent of
Clipper and the holders of a majority of the Voting Power
then held by the Investor Shareholders.
SECTION 4.02. Sales of the Investor Shareholders' Common
Stock. Each Investor Shareholder agrees that it shall not sell or
otherwise transfer any Class A Common Stock to any person who is not
an Investor Shareholder or a member of the Hvide Group unless, upon
the consummation of such sale or other transfer, such Investor
Shareholder shall not own any shares of Class B Common Stock.
SECTION 4.03. Rights of First Refusal. (a) In the event
that an Investor Shareholder or a Hvide Group Shareholder (the
"Offering Shareholder") has received a bona fide offer to purchase
all or any part of its shares of Class A or Class B Common Stock and
desires to accept such offer, it shall give written notice
("Notice") at the address or addresses provided pursuant to Section
8.01 of such offer to the Principal Shareholder (if the Offering
Shareholder is an Investor Shareholder) or the Investor Shareholders
(if the Offering Shareholder is a member of the Hvide Group). Such
Notice shall name the proposed transferee (including all parties who
will be receiving any direct or indirect record, or beneficial,
ownership interest in the shares transferred), specify the number of
shares of Class A or Class B Common Stock intended to be transferred
(the "Offered Shares"), the price per share and all other material
terms and conditions of the offer. The Principal Shareholder or each
Investor Shareholder, as applicable, shall then have the exclusive
and irrevocable right and option for 10 days from the date such
Notice was given to purchase all and not less than all of the
Offered Shares at the price and on the terms and conditions set
forth in such Notice. The Principal Shareholder or each Investor
<PAGE>
Shareholder, as applicable, may exercise such option by giving
written notice to the Offering Shareholder of its election to do so
within such 10 day period. If more than one such person elects to
purchase Offered Shares, each such person shall be entitled to so
purchase all or part of that proportion of the total Offered Shares
equal to the proportion that the number of shares of Common Stock
(if any) it owns bears to the number of shares of Common Stock (if
any) held by all other such persons electing to purchase.
(b) If all of the Offered Shares are elected to be
purchased in accordance with the above provisions of this Section
4.03, the purchaser or purchasers thereof shall pay the purchase
price, against delivery of the certificate or certificates
representing the Offered Shares being purchased, properly endorsed
for transfer, in the manner and within the time period set forth in
the Notice;
(c) If the bona fide offer to purchase described in
Section 4.03(a) contemplates the payment of consideration other than
cash or deferred cash payment, then the purchase price payable by
such persons pursuant to the above provisions of this Section 4.03
shall, with respect to such noncash consideration, be the cash
equivalent value thereof as agreed to by the Offering Shareholder
and such persons or, in the absence of such agreement, such cash
equivalent value as determined by a nationally recognized investment
banking firm selected by the Investor Shareholders and reasonably
acceptable to such other parties.
(d) If the Offered Shares are not elected to be purchased
in accordance with the above provisions of this Section 4.03, the
Offering Shareholder may then and only then transfer the Offered
Shares, subject to compliance with all applicable state and Federal
securities laws, at any time within 90 days from the date the Notice
was given, but only to the transferee and at a price and on the
terms specified in the Notice (or at a price and on other terms more
favorable to the Offering Shareholder than the price and the other
terms specified in the Notice); provided that any material change in
the terms that are less favorable to the Offering Shareholder or any
changes in the transferee shall require a reoffering of the Offered
Shares as provided above in this Section 4.03; provided, further,
that if the Offered Shares have not been transferred or sold within
such 90-day period, the above provisions of this Section 4.03
<PAGE>
must be satisfied again before the Offered Shares may be
transferred.
(e) The rights of first refusal set forth above in this
Section 4.03 (i) shall not apply to any transfer of shares by any
Investor Shareholder to another Investor Shareholder, (ii) shall not
apply to any transfer of shares by any member of the Hvide Group by
way of sale, bona fide gift or testamentary or intestate transfer or
otherwise, to one or more members of the Hvide Group; provided that
such transferee member or members are bound by the terms and
provisions hereof, and (iii) shall not apply to any public sale of
Common Stock registered with the SEC or made pursuant to Rule 144.
(f) Notwithstanding the foregoing provisions of this
Section 4.03, if any member of the Hvide Group, other than the
Principal Shareholder, desires to transfer Common Stock to any
person not a member of the Hvide Group, then the Principal
Shareholder shall have the first opportunity to purchase such
shares. Any shares not so purchased shall then be subject to the
provisions of Section 4.03(a), except that the Principal Shareholder
shall not have any further rights of first refusal. Notwithstanding
the foregoing provisions of this Section 4.03, if any Investor
Shareholder desires to transfer Common Stock to any person that is
not an Investor Shareholder, then each other Investor Shareholder
shall have the first opportunity to purchase such shares, pro rata,
based on their respective holdings of Common Stock; provided that
such right of first opportunity shall not apply to any public sale
of Common Stock registered with the SEC or made pursuant to Rule
144. Any shares not so purchased shall then be subject to the
provisions of Section 4.03(a), except that the Investor Shareholders
shall not have any further rights of first refusal.
(g) The rights of first refusal provided herein may be
transferred by any Investor Shareholder only to another Investor
Shareholder, and by any member of the Hvide Group only to another
member of the Hvide Group.
SECTION 4.04. Modification of Articles and By-laws. Each
Investor Shareholder and each Hvide Group Shareholder agrees that if
and when the Investor Shareholders own in the aggregate less than 5%
of the then issued and outstanding shares of Class B Common Stock,
it shall vote or cause to be voted all shares of Common Stock
<PAGE>
now held or hereafter acquired by it or an Affiliate controlled by
it, and take such other actions as may be reasonably necessary, to
cause the Articles and by-laws of the Company to be amended so as to
remove therefrom the provisions requiring the approval of the
holders of the Class B Common Stock for certain corporate actions.
ARTICLE V
Transferability Generally; Citizenship
SECTION 5.01. Compliance with Applicable Law.
Notwithstanding any other provision contained in this Agreement,
each Investor Shareholder and each Hvide Group Shareholder will not,
directly or indirectly, sell all or any part of the Common Stock
owned by such person, unless and until appropriate action necessary
for compliance with the Securities Act and the Exchange Act shall
have been taken.
SECTION 5.02. Transfers to Permitted Transferees. Neither
any Investor Shareholder, any Hvide Group Shareholder nor any
transferee may sell or otherwise transfer (including any transfer by
operation of law or otherwise of the corpus of a trust to the
beneficiaries of such trust) all or any portion of its shares of
Common Stock to any person (other than a party to this Agreement)
unless and until such person shall have become a party to, and
become bound by all the terms and conditions of, this Agreement, and
in connection therewith such person has executed and delivered to
each of Clipper and the Principal Shareholder a counterpart of this
Agreement; provided that such requirements shall not apply to any
registered public sale of Common Stock in connection with the
Initial Public Offering or any subsequent public sale of Common
Stock registered with the SEC or made pursuant to Rule 144.
SECTION 5.03. Transfers by the Hvide Group Shareholders.
The Hvide Group Shareholders shall not transfer all or any part of
the shares of Common Stock owned by them to a person that is not a
Citizen, and pursuant to such obligation shall not transfer shares
of Common Stock to a person that is not a Hvide Group Shareholder
unless and until such person provides the necessary proof of
citizenship.
<PAGE>
ARTICLE VI
Legend for the Common Stock
SECTION 6.01. Legend for the Common Stock. The
certificates representing the Common Stock held by the Shareholders
shall bear a legend reading substantially as follows:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), AND ARE SUBJECT TO A CERTAIN AGREEMENT AMONG
SHAREHOLDERS. NO SALE, HYPOTHECATION, TRANSFER OR OTHER DISPOSITION
OF THIS CERTIFICATE (OTHER THAN TO THE ISSUER THEREOF) MAY BE MADE
UNLESS MADE IN ACCORDANCE WITH SUCH AGREEMENT AMONG SHAREHOLDERS AND
EITHER (A) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OR (B) PURSUANT TO AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT.
ARTICLE VII
Contribution and Conversion of Shares
of Class B Common Stock.
SECTION 7.01. Contribution of Shares of Class B Common
Stock by the Hvide Group Shareholders. Each of the Hvide Group
Shareholders hereby agrees to contribute, pro rata, to the Company
an amount of shares of Class B Common Stock equal to the amount of
shares of Class A Common Stock issued by the Company at any time
pursuant to the Contingent Share Issuance Agreement. Such shares
shall be contributed concurrently with the issuance of shares from
time to time by the Company pursuant to such agreement.
SECTION 7.02. Conversion of the Investor Shareholders'
Class B Common Stock. If, after the Hvide Group Shareholders
contribute Class B Common Stock to the Company pursuant to Section
7.01, the Investor Shareholders have more Voting Power than the
Hvide Group Shareholders, then the Investor Shareholders shall, to
the extent permitted by the Articles, convert, pro rata, shares of
Class B Common Stock into shares of Class A Common Stock to the
extent necessary to make the Voting Power of the Hvide Group
Shareholders exceed the Voting Power of the Investor Shareholders by
one vote.
<PAGE>
ARTICLE VII
Miscellaneous
SECTION 8.01. Notices. All notices and other
communications pertaining to this Agreement shall be in writing and
shall be deemed to have been duly given upon the receipt thereof.
Such notices shall be delivered by hand, or mailed, certified or
registered mail with postage prepaid:
(a) if to Clipper or the other Investor Shareholders, at
their respective addresses set forth in Schedule 2 hereto, with
a copy to:
Cravath, Swaine & Moore
Worldwide Plaza
825 Eighth Avenue
New York, NY 10019-7475
Attention of D. Collier Kirkham, Esq.; and
(b) if to the Principal Shareholder or the other Hvide
Group Shareholders, to him or each of them at:
2200 Eller Drive, P. O. Box 13038
Fort Lauderdale, FL 33316
Attention of Gene Douglas, Esq.
with a copy to:
Dyer Ellis & Joseph
600 New Hampshire Avenue, N.W.
Washington, D.C. 20037
Attention of Michael Joseph, Esq.
or to such other person or address as shall be furnished to
the other party in writing.
SECTION 8.02. Parties. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and each of their
respective permitted successors and assigns. Nothing expressed or
mentioned in this Agreement is intended or shall be construed to
give any person, firm or corporation, other than the parties hereto
and their respective permitted successors and assigns, any legal or
equitable right, remedy or claim under or in respect of this
Agreement or any provision herein contained. This Agreement and all
conditions and provisions hereof are intended to be
<PAGE>
for the sole and exclusive benefit of the parties hereto and their
respective permitted successors and assigns, and for the benefit of
no other person, firm or corporation.
SECTION 8.03. Governing Law. This Agreement shall be
governed by the laws of the State of Florida regardless of the laws
that might otherwise govern under applicable principles of conflict
of laws thereof.
SECTION 8.04. Successors and Assigns. Each party hereto
may, subject to Section 4.03(g) hereof, assign to one or more
assignees all or a portion of its interests, rights and obligations
under this Agreement; provided that (i) each such party may only so
assign such interests, rights and obligations to the extent that it
transfers shares of Common Stock to such assignee in accordance with
the provisions hereof and (ii) such assignee shall have executed and
delivered to each of Clipper and the Principal Shareholder a
counterpart hereof.
SECTION 8.05. Severability Clause. In case any provision
in this Agreement shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions
shall not in any way be affected or impaired thereby and such
provision shall be ineffective only to the extent of such
invalidity, illegality or unenforceability. The parties hereto shall
endeavor in good-faith negotiations to replace the invalid, illegal
or unenforceable provisions with valid provisions the economic
effect of which comes as close as possible to that of the invalid,
illegal or unenforceable provisions.
SECTION 8.06. Representations, Warranties and Agreements
To Survive Delivery. All representations, warranties and agreements
contained in or incorporated into this Agreement shall remain
operative and in full force and effect, regardless of any
investigation made by or on behalf of any of the Shareholders or any
controlling person of any of the Shareholders, or by or on behalf of
the Principal Shareholder, and shall survive the execution and
delivery of this Agreement.
SECTION 8.07. Waivers, Amendment and Remedies. The failure
of any of the parties to insist in any one or more instances upon
strict performance of any of the provisions of this Agreement or to
take advantage of any of its rights hereunder shall not be construed
as a waiver of any such provisions or the relinquishment of any such
<PAGE>
rights, but the same shall continue and remain in full force and
effect.
Neither this Agreement nor any provision hereof may be
waived, amended or modified except pursuant to an agreement or
agreements in writing entered into by the Principal Shareholder,
Clipper and the Investor Shareholders holding a majority of the
Voting Power then held by the Investor Shareholders.
Except as otherwise expressly limited in this Agreement,
all remedies under this Agreement shall be cumulative and in
addition to every other remedy provided for herein or by law.
SECTION 8.08. Specific Performance. Each of the
Shareholders agrees that the other Shareholders would be irreparably
damaged if for any reason it fails to perform any of its obligations
under this Agreement, and that the other Shareholders would not have
an adequate remedy at law for money damages in such event.
Accordingly, each Shareholder shall be entitled to seek specific
performance and injunctive and other equitable relief to enforce the
performance of this Agreement by the other Shareholders. This
provision is without prejudice to any other rights that any
Shareholder may have against any other Shareholder for any failure
to perform its obligations under this Agreement.
SECTION 8.09. Termination of Agreement. At such time as
the aggregate Primary Economic Interest of the Investor Shareholders
shall be less than 5% of the Total Primary Economic Interests in the
Company, the rights and obligations of the parties hereunder shall
cease and this Agreement shall terminate and be of no further force
and effect.
SECTION 8.10. Voting Agreements, etc. None of the
Shareholders shall, nor shall any Shareholder permit any other
Shareholder controlled by it to, enter into any agreement or
understanding with any person, directly or indirectly, to vote,
grant any proxy or give instructions with respect to the voting of
Voting Securities in any manner inconsistent with the terms of this
Agreement.
SECTION 8.11. Entire Agreement. This Agreement, together
with all schedules hereto, is intended by the parties hereto to be a
final expression of their agreement in respect of the subject matter
contained herein, and
<PAGE>
supersedes all prior agreements and understandings between the
parties hereto with respect to such subject matter.
SECTION 8.12. Headings. The headings of the Articles and
the Sections in this Agreement are for convenience of reference only
and shall not be deemed to alter or affect the meaning or
interpretation of any provisions hereof.
SECTION 8.13. Counterparts. This Agreement may be executed
in counterparts, each of which shall be deemed to be an original and
all of which shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have duly executed this
Agreement as of the date first above written.
CLIPPER CAPITAL ASSOCIATES,
L.P.,
by its general partner
Clipper Capital Associates,
Inc.,
by
/s/ Daniel V. Cahillane
----------------------------
Name: Daniel V. Cahillane
Title: Treasurer &
Secretary
CLIPPER/MERCHANT HMI, L.P.,
by its general partner
Clipper Capital Associates,
L.P.,
by its general partner Clipper
Capital Associates, Inc.,
by
/s/ Daniel V. Cahillane
----------------------------
Name: Daniel V. Cahillane
Title: Treasurer &
Secretary
<PAGE>
CLIPPER/PARK HMI, L.P.,
by its general partner Clipper
Capital Associates, L.P.,
by its general partner Clipper
Capital Associates, Inc.,
by
/s/ Daniel V. Cahillane
----------------------------
Name: Daniel V. Cahillane
Title: Treasurer &
Secretary
CLIPPER/MERBAN, L.P.,
by its general partner
Clipper Capital Associates,
L.P.,
by its general partner Clipper
Capital Associates, Inc.,
by
/s/ Daniel V. Cahillane
----------------------------
Name: Daniel V. Cahillane
Title: Treasurer &
Secretary
CLIPPER/HERCULES, L.P.,
by its general partner
Clipper Capital Associates,
L.P.,
by its general partner Clipper
Capital Associates, Inc.,
by
/s/ Daniel V. Cahillane
----------------------------
Name: Daniel V. Cahillane
Title: Treasurer &
Secretary
<PAGE>
METROPOLITAN LIFE INSURANCE
COMPANY,
by
/s/ Michael J. Mazzola
----------------------------
Name: Michael J. Mazzola
Title: Asst. Vice-President
OLYMPUS GROWTH FUND II, L.P.,
by its general partner OGP II,
L.P.,
by
/s/ Louis J. Mischianti
---------------------------
Name: Louis J. Mischianti
Title: Partner
/s/ J. Erik Hvide
----------------------------
J. Erik Hvide
Trust created by the
Declaration of Trust dated
June 23, 1978, for Elsa Hvide
and the others named therein,
by
/s/ J. Erik Hvide
-------------------------
J. Erik Hvide
Trust created by the
Declaration of Trust, dated
June 23, 1978, for Elsa Hvide
Sowrey and the others named
therein,
by
/s/ J. Erik Hvide
-----------------------
J. Erik Hvide
<PAGE>
SCHEDULE I
Hvide Group Shareholders
Holder Class A Class B
Shares Shares
J. Erik Hvide 2,000 204,509
Trust created by the Declaration of 0 1,454,383
Trust dated June 23, 1978, for
Elsa Hvide and the others named
therein
Trust created by the Declaration of 0 110,215
Trust, dated June 23, 1978, for
Elsa Hvide Sowrey and the others
named therein
<PAGE>
SCHEDULE II
Addresses for Investor Shareholders
Clipper Capital Associates, L.P.,
Clipper/Hercules HMI, L.P.,
Clipper/Merban, L.P.,
Clipper/Merchant HMI, L.P., and
Clipper/Park HMI, L.P.
c/o Clipper Capital Associates, L.P.
12 East 49th Street (30th Floor)
New York, NY 10017
Attention of: Mr. Kevin A. Macdonald
Metropolitan Life Insurance Company
334 Madison Avenue
P.O. Box 633
Convent Station, NJ 07961-0633
Attention of: Mr. Charles Symington
Olympus Growth Fund II, L.P.
c/o Olympus Partners
Metro Center, One Station Place
Stamford, CT 06902
Attention of: Mr. Louis J. Mischianti
EXHIBIT B
AMENDED AND RESTATED CONTINGENT SHARE
ISSUANCE AGREEMENT dated as of August 14, 1996,
among HVIDE MARINE INCORPORATED, a Florida
corporation (the "Company"), and the purchasers
identified in Schedule 1 attached hereto (the
"Purchasers").
W I T N E S S E T H:
WHEREAS pursuant to the Contingent Share Issuance
Agreement dated as of September 30, 1994 (the "Initial CSI
Agreement"), the Company issued to the Purchasers the Series 1
Common Stock Contingent Share Issuances (the "Series 1 CSIs") and
Series 2 Common Stock Contingent Share Issuances (the "Series 2
CSIs" and, together with the Series 1 CSIs, the "CSIs") in the
amounts set forth on Schedule 1 hereto;
WHEREAS the Company, formerly known as Hvide Corp., was
the surviving entity in a merger (which was consummated
immediately prior to the execution and delivery of this
Agreement) with the former Hvide Marine Incorporated and in
connection therewith assumed the name Hvide Marine Incorporated;
WHEREAS the Company and the Purchasers are parties to
that certain Recapitalization Agreement dated as of August 8,
1996 (as amended, supplemented, replaced or otherwise modified
from time to time, the "Recapitalization Agreement"; each
capitalized term used but not defined herein shall have the
meaning ascribed to such term in the Recapitalization Agreement),
which requires that the Initial CSI Agreement be amended and
restated in the form hereof at or prior to the closing of the
Initial Public Offering;
WHEREAS the other conditions precedent specified in the
Recapitalization Agreement have been satisfied;
NOW, THEREFORE, in consideration of the foregoing
premises, the agreements herein set forth and other good and
valuable consideration, the receipt and sufficiency of which
<PAGE>
are hereby acknowledged, the parties hereto hereby amend and
restate the Initial CSI Agreement as follows:
ARTICLE I
CSI Certificates
SECTION 1.01. CSI Certificates. The parties hereto
acknowledge and affirm that the Purchasers are the holders of
record of the certificates (the "CSI Certificates") representing
the CSIs issued by the Company pursuant to the Initial CSI
Agreement in the amounts set forth on Schedule 1 hereto. Each
reference in the CSI Certificates to the Contingent Share
Issuance Agreement and the terms thereof shall be deemed to be a
reference to this Amended and Restated Contingent Shares Issuance
Agreement and the terms hereof.
SECTION 1.02. Exchange and Replacement of CSI
Certificates. (a) Exchange. Any CSI Certificate may be exchanged
at the option of the registered holder thereof (the "Holder") for
another CSI Certificate or Certificates representing in the
aggregate a like number of CSIs. Any Holder desiring to effect
such an exchange shall make such request in writing delivered to
the Company and shall surrender, properly endorsed, the CSI
Certificate or Certificates to be so exchanged. Thereupon, the
Company shall execute and deliver to the Holder, or at the
Holder's written direction to any other person, a new CSI
Certificate or Certificates, as the case may be, as so requested.
(b) Replacement. In case any of the CSI Certificates
shall be mutilated, lost, stolen or destroyed, the Company shall
issue and deliver in exchange and substitution for and upon
cancellation of the mutilated CSI Certificate, or in lieu of and
substitution for the CSI Certificate lost, stolen or destroyed, a
new CSI Certificate of like tenor and representing an equivalent
right and interest; but, unless waived by the Company, only upon
receipt, in the case of loss, theft or destruction of such CSI
Certificate, of an indemnity in an amount reasonably satisfactory
to the Company. An applicant for such substitute CSI Certificate
shall also comply with such other reasonable regulations and pay
such other reasonable charges as the Company may prescribe.
<PAGE>
SECTION 1.03. Legend for the CSI Certificates. The CSI
Certificates will bear a legend reading substantially as follows:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE "SECURITIES
ACT"). NO SALE, HYPOTHECATION, TRANSFER OR OTHER DISPOSITION
OF THIS CERTIFICATE (OTHER THAN TO THE ISSUER HEREOF) MAY BE
MADE UNLESS EITHER (A) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OR (B) PURSUANT TO AN
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.
ARTICLE II
[INTENTIONALLY OMITTED]
ARTICLE III
Issuance Terms
SECTION 3.01. Triggering Events for the CSIs. (a) Upon
the occurrence of a Triggering Event (as defined below):
(i) the Company shall issue to the Holder of a Series 1
CSI the number of shares (the "Class A Shares" or "Shares")
of Class A Common Stock, $0.001 par value, of the Company
(the "Class A Common Stock"; the Class A Common Stock,
together with the Class B Common Stock, $0.001 par value, of
the Company (the "Class B Common Stock"), are hereinafter
referred to collectively as the "Common Stock"), determined
pursuant to Section 3.02 hereof, and such Holder shall pay
the Company par value for such shares; and
(ii) the Company shall issue to the Holder of a Series
2 CSI the number of Shares determined pursuant to Section
3.03 hereof, and such Holder shall pay the Company par value
for such Shares.
(b) As used in this Agreement, the term 9"Triggering
Event" shall mean 300 days after the closing of the Initial
Public Offering.
<PAGE>
SECTION 3.02. Number of Shares Issuable to the Holder
of a Series 1 CSI. Upon the occurrence of a Triggering Event, the
Company shall issue to each Holder of a Series 1 CSI the number
of Shares determined by dividing (i) the lesser of (x) the number
of additional Shares, if any, that would have to be issued
pursuant to the Series 1 CSIs so as to cause the All-in Return
(as defined in Section 3.04) to equal 60% or (y) the number of
shares of Common Stock equal to 9.375% of the then issued and
outstanding Common Stock of the Company on a fully diluted basis
without giving effect to the CSIs and not including the shares of
Common Stock issued in the Initial Public Offering or the shares
of Common Stock issuable upon conversion of the Junior
Subordinated Notes by (ii) 150,000, the total number of Series 1
CSIs issued by the Company pursuant to this Agreement.
SECTION 3.03. Number of Shares Issuable to the Holder
of a Series 2 CSI. Upon the occurrence of a Triggering Event, the
Company shall issue to each Holder of a Series 2 CSI the number
of Shares determined by dividing (i) the lesser of (x) the number
of additional Shares, if any, that would have to be issued
pursuant to the Series 2 CSIs so as to cause the All-in Return to
equal 35% or (y) the number of shares of Common Stock equal to
12.5% of the then issued and outstanding Common Stock of the
Company on a fully diluted basis without giving effect to the
CSIs and not including the shares of Common Stock issued in the
Initial Public Offering or the shares of Common Stock issuable
upon conversion of the Junior Subordinated Notes by (ii) 200,000,
the total number of Series 2 CSIs issued by the Company pursuant
to this Agreement.
SECTION 3.04. All-in Return. (a) As used in this
Agreement, the term "All-in Return" shall mean the annual
internal rate of return earned by the Purchasers and their
assignees with respect to their aggregate $25,000,000 investment
(the "Investment Amount") in the Junior Subordinated Notes and
the Common Stock, including, in addition to the Common Stock
issued pursuant to the Junior Subordinated Note Agreement, any
shares of Common Stock that are received upon the conversion of
Junior Subordinated Notes pursuant to the Recapitalization
Agreement (collectively, the "Purchased Shares").
(b) The All-in Return shall be measured from September
30, 1994 (the "Junior Subordinated Notes Closing Date") until the
date of the Triggering Event (the
<PAGE>
"Measurement Date"). For purposes of determining the All-in Return,
(i) the Investment Amount shall be treated as an outflow occurring
on the Junior Subordinated Notes Closing Date, (ii) the amounts paid
in cash by the Company as interest, principal and redemption with
respect to the Junior Subordinated Notes shall be treated as inflows
on the dates such amounts are received by the Purchasers, (iii) the
proceeds, net of transaction expenses, actually realized by the
Purchasers with respect to the disposition and sale of the Purchased
Shares shall be treated as inflows on the date of such sales or
dispositions, and (iv) any Purchased Shares still held on the
Measurement Date and any shares of Common Stock to be issued
pursuant to the CSIs shall be treated as inflows in an amount equal
to their value on the Measurement Date (the "Measurement Date Share
Value"). The Measurement Date Share Value shall be an amount
calculated by multiplying (A) the average of Closing Prices (as
defined in Section 4.01 hereof, and appropriately adjusted to
reflect any stock splits or other dilutive events occurring during
such period) for the 30 consecutive trading days immediately prior
to the Measurement Date by (B) 95%. Examples of the calculation of
the All-in Return are set forth in Exhibit B.
SECTION 3.05. Delivery of Certificates. Subject to
Section 3.08, upon a Triggering Event, the Company shall cause to
be delivered to each Holder, with all reasonable dispatch, a
certificate or certificates for the number of full shares of
Common Stock issuable to such Holder pursuant to the CSIs in such
name or names as such Holder may designate.
SECTION 3.06. Elimination of Fractional Interests. The
Company shall not be required to issue certificates representing
fractions of shares of Common Stock upon a Triggering Event, nor
shall it be required to issue scrip or pay cash in lieu of
fractional interests, it being the intent of the parties that all
fractional interests shall be eliminated by rounding any fraction
to the nearest whole number of shares of Common Stock or other
securities, properties or rights.
SECTION 3.07. Reservation of Securities. The Company
shall at all times reserve and keep available such number of
shares of Common Stock as shall be issuable pursuant to the CSIs,
and shall at all times reserve and keep available an adequate
allowance, as the parties may reasonably agree, on the Company's
foreign stock register, to provide for the issuance of such
Shares (so that the
<PAGE>
receipt of such Shares by persons other than citizens of the
United States will not result in the Company no longer qualifying
as a United States citizen under the Shipping Act, 1916, as
amended, or other applicable Federal or state maritime laws). The
Company covenants and agrees that all shares of Common Stock
issued pursuant to the CSIs shall be duly and validly issued,
fully paid, nonassessable and not subject to the preemptive
rights of any stockholder of the Company.
SECTION 3.08. Payment of Taxes. The Company will pay
all documentary stamp taxes, if any, attributable to the shares
of Common Stock issued pursuant to the CSIs; provided, however,
that the Company shall not be required to pay any tax or taxes
which may be payable in respect of any transfer involved in the
issue or delivery of any CSI Certificate in a name other than
that of the Holder of the transferred CSI Certificate or
Certificates or of any certificate for shares of Common Stock
issued pursuant to the CSIs in a name other than that of the
Holder of the CSI Certificate.
ARTICLE IV
Miscellaneous
SECTION 4.01. Closing Price. As used in this Agreement,
the term "Closing Price" on any day shall mean the reported last
sales price regular way on such day on the New York Stock
Exchange, or, if not reported for such Exchange, on the New York
Stock Exchange Composite Tape, or, in case no such reported sale
takes place on such day, the average of the reported closing bid
and asked prices regular way on the New York Stock Exchange, or,
if Common Stock is not listed or admitted to trading on such
Exchange, on the principal national securities exchange on which
such Common Stock is listed or admitted to trading, or, if not
listed or admitted to trading on any national securities
exchange, the average of the closing bid and asked prices in the
over-the-counter market as furnished by any New York Stock
Exchange member firm selected from time to time by the Company
for that purpose. The term "trading day" shall mean, so long as
Common Stock is listed or admitted to trading on the New York
Stock Exchange (or any successor to such Exchange), a date on
which the New York Stock Exchange (or such successor) is open for
the transaction of business, or, if such Common Stock is not
listed or admitted to
<PAGE>
trading on such Exchange, a date on which the principal national
securities exchange on which such Common Stock is listed is open
for the transaction of business, or, if such Common Stock is not
listed or admitted to trading on any national securities
exchange, a date on which any New York Stock Exchange member firm
is open for the transaction of business. The price of shares of
any class of Common Stock shall be deemed to be the Closing Price
of the publicly traded class of Common Stock, if any.
SECTION 4.02. Compliance with Applicable Law.
Notwithstanding anything to the contrary herein, the acquisition
of Class A Shares by any Holder hereunder shall be subject to any
limitations then imposed under applicable Federal or state
maritime (including, without limitation, establishing U.S.
Citizenship in accordance with the Shipping Act, 1916, as
amended), banking or other law, including without limitation the
International Banking Act of 1978, as amended, the Bank Company
Act of 1956, as amended and any applicable rules or regulations
promulgated thereunder by, or understandings with, the Board of
Governors of the Federal Reserve System, it being understood and
agreed that in the event a Holder is not permitted under any such
applicable law to acquire the full amount of Class A Shares to
which such Holder would then be entitled pursuant hereto, such
Holder shall acquire as many Class A Shares as shall be
permissible under applicable law; provided that in the event such
Holder is then not permitted under applicable law to acquire any
portion of such Class A Shares, such Holder may or, if required
by applicable law, shall transfer its right to receive any such
Class A Shares to another investor at a purchase price not
greater than the fair market value of such shares as mutually
determined by such Holder and such investor; provided, further,
that if an issuance hereunder (after giving effect to the
alternatives described above) would result in such a violation
and the right to receive such Shares may be deferred in
accordance with applicable law, the right to receive such Shares
shall be deferred until (but only until) the issuance of such
shares may be effected without causing such a violation. In the
event that a Holder of CSIs under this Agreement determines to
transfer its rights hereunder to any person or entity as
permitted hereunder, such transfer shall, if required by
applicable law, in addition to any other requirements set forth
herein, be subject to the condition that, upon notice from such
Holder of any applicable restrictions or limitations under
applicable law on its ability to acquire Class A Shares, the
transferee shall
<PAGE>
agree in writing to be bound by any such restrictions or
limitations to the same extent as if such transferee was itself
subject thereto.
SECTION 4.03. Notices. All notices and other
communications pertaining to this Agreement shall be in writing
and shall be deemed to have been duly given upon the receipt
thereof. Such notices shall be delivered by hand, or mailed,
certified or registered mail with postage prepaid:
(a) If to a Purchaser, at its address set forth in
Schedule 1 hereto, with a copy to:
Cravath, Swaine & Moore Worldwide Plaza 825 Eighth
Avenue New York, NY 10019-7475 Attention of D.
Collier Kirkham
or to such other address as such Purchaser may prescribe from
time to time by written notice to the Company.
(b) If to the Company, to it at:
2200 Eller Drive, P.O. Box 13038 Fort Lauderdale,
FL 33316 Attention of Gene Douglas
with a copy to:
Dyer Ellis & Joseph 600 New Hampshire Avenue, N.W.
Washington, D.C. 20037 Attention of Michael Joseph
or to such other address as the Company may prescribe from time
to time by written notice to each of the Purchasers.
SECTION 4.04. Governing Law. This Agreement shall be
governed by the laws of the State of Florida regardless of the
laws that might otherwise govern under applicable principles of
conflict of laws thereof.
SECTION 4.05. Successors. All the covenants and
provisions of this Agreement by or for the benefit of the parties
hereto shall bind and inure to the benefit of their respective
successors and assigns hereunder.
<PAGE>
SECTION 4.06. Entire Agreement; Modification. This
Agreement contains the entire understanding between the parties
hereto with respect to the subject matter hereof and may not be
modified or amended except by a writing duly signed by the party
against whom enforcement of the modification or amendment is
sought.
SECTION 4.07. Severability. If any provision of this
Agreement shall be held to be invalid and unenforceable, such
invalidity or unenforceability shall not affect any other
provision of this Agreement.
SECTION 4.08. Benefits of This Agreement; Disclaimer.
Nothing in this Agreement shall be construed to give to any
person or corporation other than the parties hereto any legal or
equitable right, remedy or claim under this Agreement, but this
Agreement shall be for the sole and exclusive benefit of the
parties hereto.
SECTION 4.09. No Novation. Nothing herein contained
shall be construed as a substitution or a novation of the
obligations of the Company under the Initial CSI Agreement or the
CSIs, which shall remain in full force and effect except as
modified hereby.
SECTION 4.10. Captions. The captions of the sections
and subsections of this Agreement have been inserted for
convenience only and shall have no substantive effect.
SECTION 4.11. Counterparts. This Agreement may be
executed in any number of counterparts, each of which so executed
shall be deemed to be an original; but such
<PAGE>
counterparts together shall constitute but one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the day, month and year first
above written.
HVIDE MARINE INCORPORATED,
by /s/ Gene Douglas
----------------
Name: Gene Douglas
Title: V.P.-Legal &
General Counsel
and Secretary
CLIPPER/MERCHANT HMI, L.P.,
by its general partner
Clipper Capital Associates,
L.P.,
by its general partner
Clipper Capital Associates,
Inc.,
by /s/ Daniel V. Cahillane
-----------------------
Name: Daniel V. Cahillane
Title: Treasurer & Secretary
<PAGE>
CLIPPER/MERBAN, L.P.,
by its general partner
Clipper Capital Associates,
L.P.,
by its general partner
Clipper Capital Associates,
Inc.,
by /s/ Daniel V. Cahillane
-----------------------
Name: Daniel V. Cahillane
Title: Treasurer & Secretary
CLIPPER/PARK HMI, L.P.,
by its general partner
Clipper Capital Associates,
L.P.,
by its general partner
Clipper Capital Associates,
Inc.,
by /s/ Daniel V. Cahillane
-----------------------
Name: Daniel V. Cahillane
Title: Treasurer & Secretary
<PAGE>
CLIPPER/HERCULES, L.P.,
by its general partner
Clipper Capital Associates,
L.P.,
by its general partner
Clipper Capital Associates,
Inc.,
by /s/ Daniel V. Cahillane
-----------------------
Name: Daniel V. Cahillane
Title: Treasurer & Secretary
CLIPPER CAPITAL ASSOCIATES,
L.P.,
by its general partner
Clipper Capital Associates,
Inc.,
by /s/ Daniel V. Cahillane
-----------------------
Name: Daniel V. Cahillane
Title: Treasurer & Secretary
<PAGE>
Schedule 1
Number of Number of
Name and Address Series 1 CSIs Series 2 CSIs
- -------------------- --------------- ---------------
Clipper/Merchant 25,031 33,374
HMI, L.P.
Clipper/Merban 25,031 33,374
L.P.
Clipper/Park HMI, 62,577 83,436
L.P.
Clipper/Hercules 34,601 46,135
L.P.
Clipper Capital 2,760 3,680
Associates, L.P.
The address for notices of each Purchaser is:
In care of Clipper Capital Associates, L.P. 12 East 49th
Street (30th Floor) New York, NY 10017
Attention of: Mr. Kevin A. Macdonald
<PAGE>
EXHIBIT B
EXAMPLES OF ALL-IN RETURN
($ mm)
EXAMPLE #1:
Assumptions: Closing on Sept. 30, 1994. IPO
completed after one year on
Sept. 30, 1995.
All-in Return based on trading value of
stock 120 days after operation of 180-
day lock-up period.
Calculation of Return:
Cash
Date Flow Comment
9/30/94 ($25.000) Initial investment at Closing.
9/30/95 27.061 Return of Jr. Sub. Note
principal plus accrued
interest in connection with
IPO.
7/31/96 19.950 Measurement Date valuation of
350,000 common shares issued
with Jr. Sub. Note at Closing
Price of $60.00 per share
(350,000 x $60.00 x 95%).
All-in Return: 61.7% Internal rate of return exceeds
60%; no Series 1 or Series
2 CSIs are issued.
EXAMPLE # 2
Assumptions: Closing on Sept. 30, 1994. IPO
completed after three years on
Sept. 30, 1997. Secondary
registration statement declared
effective by SEC Feb. 28, 1998.
However, IPO lock-up period does
not expire until Mar. 31, 1998.
<PAGE>
Calculation of Return:
Cash
Date Flow Comment
9/30/94 ($25.000) Initial investment at closing.
9/30/97 31.706 Return of Jr. Sub. Note
principal plus accrued interest
in connection with IPO.
3/31/98 23.275 Measurement Date valuation of
350,000 common shares at
Closing Price of $70.00 per
share (350,000 x $70.00 x 95%).
9.975 Measurement Date valuation of
150,000 shares under Series 1
CSIs at $70.00 per share
(150,000 x $70.00 x 95%).
1.378 Measurement Date valuation of
20,722 shares under Series 2
CSIs at $70.00 per share
(20,722 x $70.00 x 95%).
All-in Return: 35.0% Internal rate of return of
35.0% requires issuance of
150,000 Series 1 CSI shares
and 20,722 Series 2 CSI shares
based on applicable hurdle
rates.
<PAGE>
EXAMPLE # 3
Assumptions: Closing on Sept. 30, 1994. No IPO
completed prior to fourth anniversary
of closing on Sept. 30, 1998.
Independent investment bank determines
fair market value of shares to be
$45.00.
Calculation of Return:
Cash
Date Flow Comment
9/30/94 ($25.000) Initial investment at closing.
9/30/98 34.320 Measurement Date valuation of
Jr. Sub. Note including
accrued interest as determined
by independent investment
bank.
14.963 Measurement Date valuation of
350,000 common shares at
Closing Price of $45.00 per
share (350,000 x $45.00 x 95%).
6.413 Measurement Date valuation of
150,000 shares under Series 1
CSIs at Closing Price of $45.00
per share (150,000 x $45.00
x 95%).
8.550 Measurement Date Valuation of
200,000 shares under Series 2
CSIs at Closing Price of
$45.00 per share (200,000 x $45.00
x 95%).
<PAGE>
Cash
Date Flow Comment
All-in Return: 26.6% Internal rate of return of 26.6%
requires issuance of maximum
150,000 Series 1 CSI shares and
200,000 Series 2 CSI shares.
EXHIBIT C
REGISTRATION RIGHTS AGREEMENT dated as of August
14, 1996, by and between HVIDE MARINE INCORPORATED, a
Florida corporation (the "Company"), and the
shareholders of the Company identified on the
signature pages hereof (together with their permitted
successors and assigns, the "Shareholders").
W I T N E S S E T H:
WHEREAS the Company and the Shareholders are parties to
the Recapitalization Agreement dated as of August 8, 1996 (as
amended, supplemented or otherwise modified from time to time, the
"Recapitalization Agreement");
WHEREAS it is a condition to the effectiveness of the
Recapitalization Agreement that the Company execute and deliver this
Agreement and provide the registration rights set forth herein;
NOW, THEREFORE, in order to induce the Shareholders to
consummate the transactions contemplated by the Recapitalization
Agreement and in consideration of the premises and agreements
contained in this Agreement and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties, intending to be legally bound, agree as
follows:
SECTION 1. Interpretation and Definitions. (a) For all
purposes of this Agreement, except as otherwise expressly provided
or unless the context otherwise requires:
(i) the terms defined in this Section 1 have the meanings
assigned to them in this Section and include the plural as well
as the singular; and
(ii) the words "herein", "hereof" and "hereunder" and
other words of similar import refer to this Agreement as a
whole and not to any particular Section or other subdivision.
(b) As used in this Agreement, the following terms shall
have the following meanings:
<PAGE>
"Additional Shareholders" means persons, other than
Shareholders or members of the Hvide Group, from time to time
holding Registrable Securities of the Company.
"Board" means the board of directors of the Company.
"Capital Stock" of any person means any and all shares,
interests, rights to purchase, warrants, options, contingent share
certificates, participations or other equivalents of or interests in
(however designated) equity of such person, but excluding any debt
securities convertible into or exchangeable for such equity.
"Clipper" means Clipper Capital Associates, L.P., a
Delaware limited partnership
"Clipper Shareholders" means Clipper, Clipper/Merchant
HMI, L.P., a Delaware limited partnership, Clipper/Park HMI, L.P., a
Delaware limited partnership, Clipper/Merban, L.P., a Delaware
limited partnership, and Clipper/Hercules, L.P., a Delaware limited
partnership, and each of their permitted successors and assigns.
"Demand Registration" has the meaning ascribed to such
term in Section 2 hereof.
"Exchange Act" means the Securities Exchange Act of 1934,
as amended.
"Hvide Group" means J. Erik Hvide and any person related
to him by kinship or marriage (including Hans J. Hvide), trusts or
similar arrangements established solely on the behalf of one or more
of them and partnerships and other entities that are wholly owned by
them and that remain wholly owned by them.
"Initial Public Offering" means the offering or sale of
the Class A Common Stock of the Company, par value $0.001 per share,
pursuant to a Registration Statement (No. 33-78166) filed by the
Company with the SEC, and any amendments or supplements thereto,
including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all documents
and other materials incorporated by reference therein.
"Managing Underwriter" means the Underwriter or
Underwriters that manage or lead an underwritten offering.
<PAGE>
"person" means any individual, corporation, partnership,
joint venture, association, joint-stock company, trust,
unincorporated organization, government or any agency or political
subdivision thereof or any other entity.
"Piggyback Registration" has the meaning ascribed to such
term in Section 3 hereof.
"Prospectus" means the prospectus included in any
Registration Statement (including a prospectus that discloses
information previously omitted from a prospectus filed as part of an
effective registration statement in reliance upon Rule 430A under
the Securities Act) and all amendments and supplements to such
prospectus, including post-effective amendments.
"Registrable Securities" means the Class A and Class B
Common Stock par value $0.001 per share of the Company (as presently
constituted), any stock or other securities into which or for which
such Class A or Class B Common Stock may hereafter be changed,
converted or exchanged, and any other securities issued to holders
of such Class A or Class B Common Stock (or such shares into which
or for which such shares are so changed, converted or exchanged)
upon any reclassification, share combination, share subdivision,
share dividend, merger, consolidation or similar transactions or
events, provided that any such securities shall not be Registrable
Securities with respect to a proposed offer or sale thereof if a
Registration Statement with respect to the sale of such securities
shall have become effective under the Securities Act and such
securities shall have been disposed of in accordance with the plan
of distribution set forth in such Registration Statement.
"Registration Statement" means any registration statement
filed by the Company with the SEC under the Securities Act that
covers some or all Registrable Securities, and any amendments or
supplements thereto, including post-effective amendments, in each
case including the Prospectus contained therein, all exhibits
thereto and all documents and other materials incorporated by
reference therein.
"SEC" means the United States Securities and Exchange
Commission.
<PAGE>
"Securities Act" means the Securities Act of 1933, as
amended.
"Selling Party" has the meaning ascribed to such term in
Section 7(b) hereof.
"Subsidiary" means a corporation or other entity
(including a partnership) of which a majority of the Capital Stock
having voting power under ordinary circumstances to elect a majority
of the board of directors or other voting interests are owned by (a)
the Company, (b) the Company and one or more Subsidiaries or (c) one
or more Subsidiaries.
"Underwriter" means any underwriter of Registrable
Securities in connection with an offering thereof pursuant to a
Registration Statement.
SECTION 2. Demand Registration. (a) Upon written notice
from Clipper requesting that the Company effect the registration (a
"Demand Registration") under the Securities Act of any or all of the
Registrable Securities held by any of the Shareholders, which notice
shall specify the intended method or methods of disposition of such
Registrable Securities, the Company will use its best efforts to
effect (at the earliest practicable date), the registration under
the Securities Act of such Registrable Securities for disposition in
accordance with the intended method or methods of disposition stated
in such request, provided that:
i) if, while a registration request is pending pursuant to
this Section 2(a), counsel to the Company delivers to Clipper
an opinion to the effect that the filing of a registration
statement would require the disclosure of material information
that the Company has a bona fide business purpose for
preserving as confidential and that such disclosure would have
a material adverse effect on the Company's business or
prospects, the Company shall not be required to effect a
registration pursuant to this Section 2(a) until the earlier of
(1) the date upon which such material information is disclosed
to the public or ceases to be material and (2) 30 days after
the delivery of such opinion; and
ii) Clipper shall have the right to exercise registration
rights pursuant to this Section 2(a) an aggregate of three (3)
times.
<PAGE>
(b) Notwithstanding any other provision of this Agreement
to the contrary, a registration requested by Clipper pursuant to
this Section 2 shall not be deemed to have been effected (and,
therefore, not exercised for purposes of Section 2(a)), if (i) it
has not become effective, (ii) it is interfered with by any stop
order, injunction or other order or requirement of the SEC or other
governmental agency or court such that the Registrable Securities
requested to be registered cannot be completely distributed in
accordance with the plan of distribution set forth in the related
Registration Statement, unless the sole reason for such interference
is a misrepresentation or an omission by any Clipper Shareholder, or
(iii) the conditions to closing specified in the purchase agreement
or underwriting agreement entered into in connection with such
registration are not satisfied or waived, unless such failure is
caused solely by a default by any Clipper Shareholder in carrying
out its obligations thereunder.
(c) In the event that any registration pursuant to this
Section 2 shall involve, in whole or in part, an underwritten
offering, Clipper shall have the right to designate the Managing
Underwriter for such underwritten offering; provided that such
Managing Underwriter shall be reasonably acceptable to the Company.
(d) The Company shall have the right to cause the
registration of additional securities for sale for the account of
any person (including the Company) in any registration of
Registrable Securities requested by Clipper pursuant to Section
2(a); provided, that the Company shall not have the right to cause
the registration of such additional securities if Clipper is advised
in writing (with a copy to the Company) by one or more of the
Managing Underwriters designated pursuant to Section 2(c) that, in
such firm's opinion, registration of such additional securities
would materially and adversely affect the offering and sale of the
Registrable Securities then contemplated by Clipper (on its own
behalf and on behalf of the other Shareholders); provided, further,
that to the extent Clipper is so advised that a lesser number of
such additional securities could be so registered and sold in such
offering, such additional securities shall be allocated as follows:
(A) first, the securities the Company proposes to sell; (B) second,
the securities held by any Additional
<PAGE>
Shareholders to be included in such offering; and (C) third, the
securities held by the Hvide Group to be included in such offering.
Clipper may require that any such additional securities be included
in the offering proposed by Clipper on the same terms and conditions
as the Registrable Securities that are included therein.
SECTION 3. Piggyback Registrations. If the Company
proposes to register a transaction under the Securities Act (other
than pursuant to a registration statement on Form S-4 or S-8 or the
equivalent thereof) involving any of its equity securities (or any
security with respect to which equity securities may be issuable
upon exercise, conversion or exchange of any options, rights thereto
or thereunder) to be offered for cash or cash equivalents, the
Company shall each such time give, at least 30 days prior to the
anticipated filing date of the Registration Statement relating to
such transaction, written notice to the Shareholders of the
Company's intention to do so, describing such securities and
specifying the form and manner and the other relevant facts involved
in such proposed registration (including, without limitation, the
identity of any Managing Underwriter, which Managing Underwriter
shall have been mutually selected by the Company and Clipper, and
whether such offering will be pursuant to a "best efforts" or "firm
commitment" underwriting). Upon the written request of any
Shareholder delivered to the Company within 25 days after such
notice shall have been given to the Shareholders (which request
shall specify the Registrable Securities intended to be disposed of
by such Shareholder and the intended method of disposition thereof),
the Company shall, if it has not already done so, use its best
efforts to effect the registration (a "Piggyback Registration")
under the Securities Act, as expeditiously as is reasonable, of the
sale of all Registrable Securities that the Company has been so
requested to register by the Shareholders and include all such
Registrable Securities in such offering (in accordance with the
intended methods of distribution thereof as aforesaid); provided,
that:
(i) if, at any time after giving such written notice of
its intention to register any offering of such securities and
prior to the effective date of the Registration Statement filed
in connection with such Piggyback Registration, the Company
shall determine for any reason not to register or to delay the
registration of such offering of securities, the Company may,
at its election, give written notice of such determination to
the Shareholders in connection with such Piggyback
<PAGE>
Registration (but the Company shall not thereby be relieved
from its obligation to pay the registration expenses in
connection therewith to the extent provided in Section 6
hereof), without prejudice, however, to any rights of any
Shareholder hereunder;
(ii) if the Managing Underwriter of such underwritten
offering shall inform the Company in writing of its opinion
that the number of securities requested to be included in such
offering would materially and adversely affect its ability to
effect such offering (such opinion shall state the reasons
therefor and the approximate number of securities that may be
included in such offering without such effect), the Company
shall register an offering of, and shall subsequently offer,
that number of securities that the Company is so advised can be
sold in such offering, which shall be allocated as follows: (A)
first, the securities the Company proposes to sell; (B) second,
the Registrable Securities held by any Shareholder and
requested to be included in such offering; (C) third, the
Registrable Securities held by any Additional Shareholder and
requested to be included in such offering; and (D) fourth, the
securities proposed to be sold by any member of the Hvide
Group;
(iii) Clipper shall have the right, upon written notice (a
"Conversion Notice") to the Company (A) within fifteen days
after receipt of notice of the Company's proposal to register a
transaction under the Securities Act pursuant to this Section 3
or (B) within fifteen days after receipt of notice pursuant to
clause (i) above of the Company's intention to discontinue any
such offering, to convert any registration of securities
proposed by the Company into a Demand Registration, and upon
the Company's receipt of such Conversion Notice, any such
proposed registration shall be treated as a Demand Registration
in accordance with the provisions of Sections 2 and 4 hereof;
provided that any Conversion Notice shall not be effective if,
within five days of the Company's receipt thereof, (A) the
Board demonstrates to the reasonable satisfaction of Clipper
that the Company has an identifiable need for the capital to be
raised by the Company in such offering for a specific purpose
and that such capital cannot reasonably be raised through
alternative means and (B) the Managing Underwriter indicates in
writing that, in its reasonable opinion, so converting the
<PAGE>
offering would materially and adversely affect the public
equity financing proposed by the Company; and
(iv) no registration of Registrable Securities effected
under this Section 3 shall relieve the Company of its
obligation to effect registrations of Registrable Securities
pursuant to Section 2 hereof; provided, however, that, subject
to Section 2(b) hereof, a Piggyback Registration converted to a
Demand Registration pursuant to clause (iii) above shall be
considered a Demand Registration for the purposes of Section
2(a)(ii) hereof.
SECTION 4. Registration Procedures. If and whenever the
Company is required to effect the registration of any Registrable
Securities under the Securities Act as provided in Section 2 or 3
hereof, the following provisions shall apply:
(a) The Company shall furnish to the Shareholders and
their counsel prior to the filing thereof with the SEC, a copy of
any Registration Statement by which such registration is effected
(including any preliminary prospectus contained therein), and each
amendment thereto and each amendment or supplement, if any, to the
Prospectus included therein and shall in good faith consider
incorporating in each such document, when so filed with the SEC,
such changes as Clipper reasonably may propose.
(b) The Company shall ensure that (i) any such
Registration Statement and any amendment thereto and any Prospectus
forming part thereof and any amendment or supplement thereto
complies as to form in all material respects with the Securities
Act, (ii) any such Registration Statement and any amendment thereto
does not, when it becomes effective, contain an untrue statement of
a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading and (iii) subject to Section 5 hereof, any Prospectus
forming part of any such Registration Statement, and any amendment
or supplement to such Prospectus, does not include an untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading, other
than, with respect to clauses (ii) and (iii) above, any such untrue
statement or omission made therein in reliance upon and conformity
with written information furnished to the Company
<PAGE>
by or on behalf of any Shareholder specifically for inclusion
therein.
(c) The Company shall promptly advise each Shareholder
then holding Registrable Securities and, if requested by such
Shareholder, promptly confirm such advice in writing:
(i) when any such Registration Statement and any amendment
or supplement thereto has been filed with the SEC and when any
such Registration Statement or any post-effective amendment
thereto has become effective;
(ii) of any request by the SEC for amendments or
supplements to any such Registration Statement or the
Prospectus included therein or for additional information;
(iii) of the issuance by the SEC of any stop order
suspending the effectiveness of any such Registration Statement
or the initiation of any actions or proceedings for that
purpose;
(iv) of the receipt by the Company of any notification
with respect to the suspension of the qualification of the
Registrable Securities included therein for sale in any
jurisdiction or the initiation or threatening of any action or
proceeding for such purpose; and
(v) of the happening of any event that requires the making
of any changes in any such Registration Statement or Prospectus
so that, as of such date, the statements therein are not
misleading and do not omit to state a material fact required to
be stated therein or necessary to make the statements therein
(in the case of the Prospectus, in light of the circumstances
under which they were made) not misleading.
(d) The Company shall use its best efforts to obtain the
withdrawal of any order suspending the effectiveness of any such
Registration Statement at the earliest possible time.
(e) The Company shall furnish to each Shareholder and its
counsel, without charge, a copy of each Registration Statement and
any and all amendments thereto, including financial statements and
schedules, and all exhibits thereto (including those incorporated
therein by reference).
<PAGE>
(f) The Company shall furnish to each Shareholder and its
counsel, without charge, copies of any and all correspondence with
the SEC or any other governmental entity relating to any
Registration Statement or the public offering of the Company's
securities.
(g) The Company shall deliver to each Shareholder, without
charge, as many copies of the Prospectus (including each preliminary
Prospectus) included in such Registration Statement and any
amendment or supplement thereto as such person may reasonably
request; and subject to Section 5 below, the Company consents to the
use of the Prospectus or any amendment or supplement thereto by each
such person in connection with the offering and sale of the
Registrable Securities covered by the Prospectus or any amendment or
supplement thereto.
(h) Prior to any offering of Registrable Securities
pursuant to any Registration Statement, the Company shall use its
best efforts to register or qualify or cooperate with each
Shareholder and its counsel in connection with the registration or
qualification of such Registrable Securities for offer and sale
under the securities, Blue Sky or similar laws of such jurisdictions
as the Shareholders request, and the Company shall use its best
efforts to do any and all other acts or things necessary or
advisable to enable the offer and sale in such jurisdictions of the
Registrable Securities covered by such 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 or to taxation in any such jurisdiction where it
is not then so subject.
(i) The Company shall cooperate with each Shareholder to
facilitate the timely preparation and delivery of certificates
representing Registrable Securities to be sold pursuant to any
Registration Statement free of any restrictive legends and in such
denominations and registered in such names as requested prior to
such sales.
(j) Subject to Section 5 hereof, at any time and from time
to time upon the occurrence of any event contemplated by paragraph
(c)(ii) or (c)(v) above, the Company shall promptly prepare and file
with the SEC a post- effective amendment to any Registration
Statement or an amendment or supplement to the related Prospectus or
file any other required document so that, as thereafter delivered
<PAGE>
to purchasers of the Registrable Securities offered thereby, the
Prospectus will not include an untrue statement of a material fact
or omit to state any material fact necessary to make the statements
therein, in light of the circumstances under which they were made,
not misleading.
(k) The Company shall comply with all applicable rules and
regulations of the SEC and shall make generally available to the
Shareholders as soon as practicable after the effective date of the
applicable Registration Statement an earnings statement satisfying
the provisions of Section 11(a) of the Securities Act and Rule 158
under the Securities Act.
(l) Each Shareholder that plans to participate in a
distribution pursuant to a Registration Statement shall furnish to
the Company such information regarding such Shareholder and its
affiliates and the distribution of such Registrable Securities as
the Company may from time to time reasonably require for inclusion
in such Registration Statement. Such information at the time any
Registration Statement and any amendment thereto becomes effective,
and at the time any Prospectus or supplement thereto previously
reviewed by the Shareholders forming a part of any Registration
Statement is delivered in any offering of Registrable Securities,
shall not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein (in the case of the Prospectus, in light
of the circumstances under which they were made) not misleading.
Each Shareholder shall advise the Company and, if requested by the
Company, confirm such advice in writing in the event that such
Shareholder becomes aware of the happening of any event that
requires the making of any changes in a Registration Statement or
Prospectus so that as of such dates the statements therein provided
by any Shareholder specifically for inclusion therein are not
misleading and do not omit to state a material fact required to be
stated therein or necessary to make the statements therein (in the
case of the Prospectus, in light of the circumstances under which
they were made) not misleading.
(m) Subject to Section 5 hereof, the Company shall, upon
request, promptly incorporate in a Prospectus or prospectus
supplement or post-effective amendment to a Registration Statement,
such information, if any, as the Managing Underwriter, the
Shareholders and the Company reasonably agree should be included
therein and shall make all required filings of such Prospectus or
prospectus
<PAGE>
supplement or post-effective amendment as soon as practicable
following notification of the matters to be incorporated in such
Prospectus or prospectus supplement or post-effective amendment, and
the Company shall print and deliver copies of such amended
Prospectus or prospectus supplement to all purchasers of such
Registrable Securities.
(n) If requested by the Shareholders in connection with
the offering and sale of Registrable Securities pursuant to a
Registration Statement, the Company shall enter into one or more
underwriting agreements with the Managing Underwriter selected (i)
by Clipper in accordance with Section 2(c) hereof or (ii) by the
mutual agreement of the Company and Clipper in accordance with
Section 3 hereof, as applicable. Any such underwriting agreement
shall contain such representations and warranties by the Company and
such other terms and provisions as are then customarily included in
underwriting agreements relating to secondary public offerings,
including, without limitation, indemnification and contribution
provisions and procedures to the effect and to the extent provided
in Section 7 hereof and provisions for the delivery of opinions of
counsel and accountants' letters to the effect and to the extent
provided in Section 4(o) hereof. The Shareholders on whose behalf
any Registrable Securities are to be distributed by such
underwriters shall be parties to any such underwriting agreement and
the representations and warranties by, and any other agreements on
the part of, the Company to and for the benefit of such underwriters
shall also be made to and for the benefit of such Shareholders. Such
underwriting agreement shall also contain such representations and
warranties by the Shareholders on whose behalf the Registrable
Securities are to be distributed as are then customarily contained
in underwriting agreements with respect to secondary distributions.
(o) The Company shall (i) make reasonably available for
inspection during normal business hours by the Shareholders, any
Underwriter participating in any disposition pursuant to a
Registration Statement, and any attorney, accountant or other agent
or representative retained by the Shareholders or any such
Underwriter all relevant financial and other records, pertinent
corporate documents and properties of the Company and its
Subsidiaries; (ii) cause the Company's officers, directors and
employees to supply all relevant information reasonably requested by
the Shareholders or any such Underwriter, attorney, accountant,
agent or representative in connection with any such Registration
Statement as is customary for
<PAGE>
similar due diligence examinations; provided, however, that any
information that is designated in writing by the Company as
confidential at the time of delivery of such information shall be
kept confidential by the Shareholders or any such Underwriter,
attorney, accountant, agent or representative, unless (x) disclosure
is, in the opinion of counsel to the disclosing party, required to
be made in connection with a court proceeding or required by law or
(y) such information becomes available to the public generally or
through a third party without an accompanying obligation of
confidentiality; (iii) make such representations and warranties to
the holders of Registrable Securities registered thereunder and the
Underwriters, if any, in form, substance and scope as are
customarily made by issuers in secondary public underwritten
offerings; (iv) obtain opinions of counsel to the Company and
updates thereof (which counsel and opinions (in form, scope and
substance) shall be reasonably satisfactory to the Managing
Underwriter, if any) addressed to each selling holder of Registrable
Securities and the Underwriters, if any, covering such matters as
are customarily covered in opinions requested in underwritten
secondary public offerings by an affiliate and such other matters as
may be reasonably requested by such holders of Registrable
Securities and Underwriters; (v) obtain "cold comfort" letters and
updates thereof from the independent certified public accountants of
the Company (and, if necessary, any other independent certified
public accountants of any Subsidiary of the Company or of any
business acquired by the Company for which financial statements and
financial data are, or are required to be, included in a
Registration Statement), addressed to each holder of Registrable
Securities and the Underwriters, if any, in customary form and
covering matters of the type customarily covered in "cold comfort"
letters in connection with underwritten secondary public offerings
by an affiliate; (vi) deliver such documents and certificates as may
be reasonably requested by the Shareholders and the Managing
Underwriter, if any, including those to evidence compliance with
this Section 4 and with any customary conditions contained in the
underwriting agreement or other agreements entered into by the
Company; and (vii) participate in good faith in any meetings with
potential investors or securities analysts (including "road shows")
as Clipper may from time to time reasonably request. The foregoing
actions set forth in clauses (iii), (iv), (v) and (vi) of this
Section 4(o) shall be performed at (A) the effectiveness of such
Registration Statement and each post- effective amendment thereto
and (B) each closing under any
<PAGE>
underwriting or similar agreement as and to the extent required
thereunder.
(p) The Company shall cause all Registrable Securities to
be listed on each securities exchange or quoted through each
automated interdealer quotation system on which similar securities
of the Company are then listed or quoted.
(q) If, pursuant to any other provision of this Agreement,
not all Registrable Securities held by a Shareholder and requested
to be included in a registered offering may be so included, then,
with respect to the Registrable Securities that such Shareholder
may, pursuant to the terms hereof, include in such offering, such
Shareholder in its sole discretion shall determine which of its
Registrable Securities shall be so included.
SECTION 5. Suspension of Offerings in Certain
Circumstances. The Company shall be entitled for the period referred
to below to postpone the filing of any Registration Statement or the
taking of any other action (including those actions required by
Section 2, 3 or 4(m) hereof) otherwise required to be prepared,
filed or taken by it pursuant to Section 2, 3 or 4(m) hereof and/or
to direct the suspension of any public offering, sale or
distribution of Registrable Securities if the Board determines in
good faith that any disclosure that would be required in connection
therewith would have a material adverse effect on the Company or any
financing, acquisition, disposition, merger, business combination,
corporate reorganization, or other transaction or development
involving the Company or any Subsidiary of the Company (a "Business
Development Determination"). Such postponement or direction shall
continue until such time as the Board determines that the
preparation and/or filing of such Registration Statement or the
taking of any such action and/or such public offering, sale or
distribution would no longer have a material adverse effect on the
Company or any such transaction but shall not, in any event, exceed
30 days for any particular Business Development Determination or 60
days for all Business Development Determinations during any twelve
month period. No Business Development Determination shall occur
within 90 days of the expiration of a postponement or suspension
caused by another Business Development Determination. The Board
shall, as promptly as practicable, give the Shareholders written
notice of any Business Development Determination.
<PAGE>
SECTION 6. Registration Expenses. The Company shall bear
all costs and expenses incurred in connection with Sections 2, 3 and
4 hereof, including fees and disbursements of its counsel and
accountants, the reasonable fees and disbursements of one counsel
for the Shareholders, printing, messenger and delivery expenses and
all SEC, NASD and Blue Sky filing fees (including those payable by
any Underwriters), provided, that such expenses shall exclude any
brokerage fees or underwriting discounts and fees.
SECTION 7. Indemnification and Contribution. (a)
Indemnification of Shareholders. In the case of any offering or sale
of Registrable Securities covered by this Agreement, the Company
shall indemnify and hold harmless each of the Shareholders and each
person affiliated with or retained by any Shareholder and who may be
subject to liability under any applicable securities laws, against
any and all losses, claims, damages or liabilities to which they or
any of them may become subject under the Securities Act or any other
statute or common law of the United States of America or political
subdivision thereof, or any other country or political subdivision
thereof or otherwise, including, subject to Section 7(c) hereof, any
amount paid in settlement of any litigation commenced or threatened
(including any amounts paid pursuant to or in settlement of claims
made under customary indemnification or contribution provisions of
any underwriting or similar agreement entered into by the
Shareholders in connection with any offering or sale of Registrable
Securities), and shall, subject to Section 7(c) hereof, promptly
reimburse them, as and when incurred, for any legal fees or
disbursements or other expenses incurred by them in connection with
investigating any claims and defending any actions, insofar as any
such losses, claims, damages, liabilities or actions shall arise out
of or shall be based upon any untrue statement or alleged untrue
statement of a material fact contained in any Registration Statement
(or in any preliminary or final Prospectus included therein) or
other offering document relating to the offering and sale of such
Registrable Securities, or the omission or alleged omission to state
therein a material fact required to be stated therein or necessary
to make the statements therein not misleading; provided, however,
that the Company will not be liable in any case to the extent that
any such loss, claim, damage or liability is determined by a final
and non-appealable judgment of a court of competent jurisdiction to
have been caused by any such untrue statement or omission made
therein in reliance upon and in conformity with written information
furnished to the Company by or on behalf of any such
<PAGE>
Shareholders specifically for inclusion therein, including any such
information furnished pursuant to Section 4(l) hereof. Any offering
or sale of the Company's common stock pursuant to the Initial Public
Offering shall be considered an offering or sale of Registrable
Securities for the purposes of the indemnity provided for in this
Section 7(a) and the contribution provided for in Section 7(d)
hereof.
(b) Indemnification of the Company. In the case of each
offering or sale of securities covered by this Agreement, each
Shareholder that sells such Registrable Securities pursuant to a
Registration Statement ("Selling Party") shall indemnify and hold
harmless the Company and each person, if any, who controls the
Company within the meaning of Section 15 of the Securities Act, each
person affiliated with or retained by the Company and who may be
subject to liability under any applicable securities laws, and each
of the Company's directors and those officers of the Company who
shall have signed any Registration Statement or other offering
document, against any and all losses, claims, damages or liabilities
to which they or any of them may become subject under the Securities
Act or any other statute or common law of the United States of
America or political subdivision thereof, or any other country or
political subdivision thereof or otherwise, including, subject to
Section 7(c) hereof, any amount paid in settlement of any litigation
commenced or threatened (including any amounts paid pursuant to or
in settlement of claims made under customary indemnification or
contribution provisions of any underwriting or similar agreement
entered into by the respective Shareholders in connection with any
offering or sale of Registrable Securities), and shall, subject to
Section 7(c) hereof, promptly reimburse them, as and when incurred,
for any legal fees or disbursements or other expenses incurred by
them in connection with investigating any claims and defending any
actions, insofar as any such losses, claims, damages, liabilities or
actions shall arise out of or shall be based upon any untrue
statement or alleged untrue statement of a material fact contained
in any Registration Statement (or in any preliminary or final
Prospectus included therein) or other offering document relating to
the offering and sale of such Registrable Securities, or the
omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading; provided, however, that such Shareholders
shall not be liable in any case, except to the extent such loss,
claim, damage or liability is determined by a final and non-
appealable judgment of a court of competent jurisdiction to
<PAGE>
have been caused by written information solely relating to such
Shareholders and their affiliates furnished to the Company by or on
behalf of such Shareholders specifically for inclusion in any
Registration Statement, any preliminary Prospectus or Prospectus
contained in such Registration Statement or other offering document,
or any amendment thereof or supplement thereto, including any such
information furnished pursuant to Section 4(l); provided, further,
that in no case shall any Shareholder be responsible for any amount
in excess of the amount of net proceeds received by such Shareholder
in connection with the sale of Registrable Securities in the
offering that is the subject of such loss, claim, damage or
liability.
(c) Procedure for Indemnification. Each party indemnified
under paragraph (a) or (b) of this Section 7, shall, promptly after
receipt of notice of the commencement of any action against such
indemnified party in respect of which indemnity may be sought,
notify the indemnifying party in writing of the commencement
thereof. The omission of any indemnified party so to notify an
indemnifying party of such action shall not relieve such
indemnifying party from any liability in respect of such action
which it may have to such indemnified party on account of the
indemnity agreement contained in paragraph (a) or (b) of this
Section 7, except to the extent that such indemnifying party was or
is actually prejudiced thereby, and in no event shall relieve such
indemnifying party from any other liability that it may have to such
indemnified party to the extent such indemnifying party has not
actually been prejudiced thereby. In case any such action shall be
brought against any indemnified party and such indemnified party
shall notify an indemnifying party of the commencement thereof, such
indemnifying party shall be entitled to participate therein and, to
the extent that it may wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party. If such
indemnifying party so assumes the defense thereof, it may not agree
to any settlement of any such action as the result of which any
remedy or relief, other than monetary damages for which such
indemnifying party shall be responsible hereunder, shall be applied
to or against such indemnified party, without the prior written
consent of such indemnified party. An indemnifying party may not
assume or jointly assume the defense of an action if in the
reasonable judgment of the indemnified party a conflict of interest
may exist between such indemnifying party and such indemnified party
with respect to such action. An indemnifying party who is not
entitled to, who
<PAGE>
elects not to, or who has not appointed counsel reasonably
satisfactory to the indemnified party within a reasonable time to,
assume the defense of an action shall be obligated to pay the fees
and expenses of counsel for such indemnified party; provided that
such indemnifying party shall not be obligated to pay the fees and
the expenses of more than one counsel (plus local counsel) for all
parties who may be indemnified by such indemnifying party with
respect to such action, unless in the reasonable judgment of any
indemnified party a conflict of interest exists between such
indemnified party and any other indemnified party with respect to
such action. If the indemnifying party does not assume the defense
of an action, it shall be bound by any settlement to which the
indemnified party agrees, irrespective of whether such indemnifying
party consents thereto provided, that if such indemnifying party
does not assume the defense of action because of a conflict of
interest that prevented it from doing so, then such indemnifying
party shall be bound by any settlement to which the indemnified
party agrees and to which such indemnifying party consents (which
consent shall not be unreasonably withheld). In any action with
respect to which the indemnifying party has assumed the defense
thereof, the indemnified party shall continue to be entitled to
participate in the defense thereof, with counsel of its own choice,
provided that such indemnifying party shall be relieved of the
obligation hereunder to reimburse such indemnified party for the
costs thereof.
(d) Contribution. In the event that the indemnity provided
in paragraph (a) or (b) of this Section 7 is unavailable to or
insufficient to hold harmless an indemnified party for any reason,
the applicable indemnifying party agrees, in lieu of or in addition
to indemnifying such indemnified party, to contribute to the
aggregate losses, claims, damages and liabilities (including legal
or other expenses reasonably incurred in connection with
investigating or defending same) (collectively "Losses") to which
such indemnified party may be subject in such proportion as is
appropriate to reflect the relative fault of such indemnifying party
on the one hand and such indemnified party on the other with respect
to the statements or omissions which resulted in such Losses and any
other relevant equitable considerations; provided, however, that in
no case shall any Selling Party be responsible for any amount in
excess of the amount of net proceeds received by such Selling Party
in connection with the sale of Registrable Securities in the
offering that is the subject of such loss, claim, damage or
liability; provided, further, that in no event shall any Selling
party
<PAGE>
be responsible for any amount not resulting from a final and
non-appealable judgment by a court of competent jurisdiction.
Relative fault shall be determined by reference to whether any
alleged untrue statement or omission related to information provided
by the indemnifying party or the indemnified party. The Company and
the Shareholders agree that it would not be just and equitable if
contribution were determined by pro rata allocation or any other
method of allocation that does not take account of the equitable
considerations referred above. Notwithstanding the provisions of
this paragraph (d), no person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 7, each
person who controls a Selling Party within the meaning of either the
Securities Act or the Exchange Act and each director, officer,
employee and agent of a Selling Party, and each person who controls
the Company within the meaning of either the Securities Act or the
Exchange Act, each officer of the Company who shall have signed the
Registration Statement and each director of the Company shall have
the same rights to contribution as the Company or the appropriate
Selling Party, as applicable, subject in each case to the applicable
terms and conditions of this paragraph (d).
SECTION 8. Transfer of Registration Rights. Each
Shareholder (and any permitted transferee) may transfer all or any
portion of its rights under this Agreement to any transferee (each,
a "transferee") of an amount of Registrable Securities owned by such
Shareholder. Any transfer of registration rights pursuant to this
Section 8 shall be effective upon receipt by the Company of written
notice from any Shareholder stating the name and address of any
transferee and identifying the amount of Registrable Securities with
respect to which the rights under this Agreement are being
transferred and the nature of the rights so transferred. In
connection with any such transfer, the term "Shareholder" as used in
this Agreement shall, where appropriate to assign the rights and
obligations of the Shareholders hereunder to such transferee, be
deemed to refer to the transferee holder of such Registrable
Securities, and each such transferee shall be deemed to be a party
to this Agreement, and, subject to the terms contained herein, shall
be entitled to the benefits hereof. The Shareholders and such
transferees may exercise the registration rights hereunder in such
proportion as they shall agree among themselves; provided, that in
no event
<PAGE>
shall the Company be required to effect more than an aggregate of
three (3) registrations pursuant to Section 2 of this Agreement or
to do so upon the request of any person other than Clipper. After
any such transfer, each Shareholder shall retain its rights under
this Agreement with respect to all other Registrable Securities
owned by such Shareholder.
SECTION 9. Miscellaneous. (a) Notices. All notices and
other communications pertaining to this Agreement shall be in
writing and shall be deemed to have been duly given upon the receipt
thereof. Such notices shall be delivered by hand or mailed,
certified or registered mail with postage prepaid:
(i) if to Clipper, to it at:
12 East 49th Street (30th Floor)
New York, NY 10017
Attention of Kevin A. Macdonald
with a copy to:
Cravath, Swaine & Moore
Worldwide Plaza
825 Eighth Avenue
New York, NY 10019-7475
Attention of D. Collier Kirkham, Esq.;
(ii) if to the other Shareholders, to them at their
respective addresses set forth on Schedule 1
hereto, with a copy to:
Cravath, Swaine & Moore
Worldwide Plaza
825 Eighth Avenue
New York, NY 10019-7475
Attention of D. Collier Kirkham, Esq.; and
<PAGE>
(iii) if to the Company, to it at:
2200 Eller Drive, P. O. Box 13038
Fort Lauderdale, FL 33316
Attention of Gene Douglas, Esq.
with a copy to:
Dyer Ellis & Joseph
600 New Hampshire Avenue, N.W.
Washington, D.C. 20037
Attention of Michael Joseph, Esq.
or to such other person or address as shall be furnished to the
other party in writing.
(b) Parties. This Agreement shall inure to the benefit of
and be binding upon the parties hereto and each of their respective
successors and permitted assigns. Nothing expressed or mentioned in
this Agreement is intended or shall be construed to give any person,
firm or corporation, other than the parties hereto and their
respective successors and permitted assigns, any legal or equitable
right, remedy or claim under or in respect of this Agreement or any
provision herein contained. This Agreement and all conditions and
provisions hereof are intended to be for the sole and exclusive
benefit of the parties hereto and their respective successors and
permitted assigns, and for the benefit of no other person, firm or
corporation.
(c) Governing Law. This Agreement shall be governed by the
laws of the State of Florida regardless of the laws that might
otherwise govern under applicable principles of conflict of laws
thereof.
(d) Assignment. Except as provided in Section 8 hereof,
the parties may not assign or transfer their rights or obligations
under this Agreement. Subject to the preceding sentence, this
Agreement shall be binding upon, inure to the benefit of, and be
enforceable by the parties and their respective successors and
permitted assigns.
(e) Severability Clause. In case any provision in this
Agreement shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby and such provision shall be
ineffective only to the extent of such invalidity, illegality or
unenforceability. The parties shall endeavor in good-faith
<PAGE>
negotiations to replace the invalid, illegal or unenforceable
provisions with valid provisions the economic effect of which comes
as close as possible to that of the invalid, illegal or
unenforceable provisions.
(f) Waivers, Amendment and Remedies. The failure of any of
the parties to insist in any one or more instances upon strict
performance of any of the provisions of this Agreement or to take
advantage of any of its rights hereunder shall not be construed as a
waiver of any such provisions or the relinquishment of any such
rights, but the same shall continue and remain in full force and
effect.
Neither this Agreement nor any provision hereof may be
waived, amended or modified except pursuant to an agreement or
agreements in writing entered into by the Company, Clipper and
Shareholders holding in excess of 50% of the Registrable Securities
then held by all Shareholders.
Except as otherwise expressly limited in this Agreement,
all remedies under this Agreement shall be cumulative and in
addition to every other remedy provided for herein or by law.
(g) Entire Agreement. This Agreement, together with all
exhibits and schedules hereto, is intended by the parties hereto to
be a final expression of their agreement in respect of the subject
matter contained herein, and supersedes all prior agreements and
understandings between the parties hereto with respect to such
subject matter.
(h) Headings. The headings of the Sections in this
Agreement are for convenience of reference only and shall not be
deemed to alter or affect the meaning or interpretation of any
provision hereof.
(i) Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed to be an
<PAGE>
original and all of which shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the parties have duly executed this
Agreement as of the date first above written.
HVIDE MARINE INCORPORATED,
by
/s/ Gene Douglas
------------------------
Name: Gene Douglas
Title: V.P.-Legal & General
Counsel and Secretary
CLIPPER CAPITAL ASSOCIATES,
L.P.,
by its general partner
Clipper Capital Associates,
Inc.,
by
/s/ Daniel V. Cahillane
--------------------------
Name: Daniel V. Cahillane
Title: Treasurer &
Secretary
CLIPPER/MERCHANT HMI, L.P.,
by its general partner
Clipper Capital Associates,
L.P.,
by its general partner
Clipper Capital Associates,
Inc.,
by
/s/ Daniel V. Cahillane
-------------------------
Name: Daniel V. Cahillane
Title: Treasurer &
Secretary
<PAGE>
CLIPPER/PARK HMI, L.P.,
by its general partner
Clipper Capital Associates,
L.P.,
by its general partner
Clipper Capital Associates,
Inc.,
by
/s/ Daniel V. Cahillane
---------------------------
Name: Daniel V. Cahillane
Title: Treasurer &
Secretary
CLIPPER/MERBAN, L.P.,
by its general partner
Clipper Capital Associates,
L.P.,
by its general partner
Clipper Capital Associates,
Inc.,
by
/s/ Daniel V. Cahillane
--------------------------
Name: Daniel V. Cahillane
Title: Treasurer &
Secretary
<PAGE>
CLIPPER/HERCULES, L.P.,
by its general partner
Clipper Capital Associates,
L.P.,
by its general partner
Clipper Capital Associates,
Inc.,
by
/s/ Daniel V. Cahillane
---------------------------
Name: Daniel V. Cahillane
Title: Treasurer &
Secretary
METROPOLITAN LIFE INSURANCE
COMPANY,
by
/s/ Michael J. Mazzola
---------------------------
Name: Michael J. Mazzola
Title: Asst. Vice-President
OLYMPUS GROWTH FUND II, L.P.,
by its general partner
OGP II, L.P.,
by
/s/ Louis J. Mischianti
---------------------------
Name: Louis J. Mischianti
Title: Partner
<PAGE>
Schedule 1
Addresses for Notice
Clipper Capital Associates, L.P.,
Clipper/Hercules HMI, L.P.,
Clipper/Merban, L.P.,
Clipper/Merchant HMI, L.P., and
Clipper/Park HMI, L.P.
c/o Clipper Capital Associates, L.P.
12 East 49th Street (30th Floor)
New York, NY 10017
Attention of: Mr. Kevin A. Macdonald
Metropolitan Life Insurance Company
334 Madison Avenue
P.O. Box 633
Convent Station, NJ 07961-0633
Attention of: Mr. Charles Symington
Olympus Growth Fund II, L.P.
c/o Olympus Partners
Metro Center, One Station Place
Stamford, CT 06902
Attention of: Mr. Louis J. Mischianti
