As filed with the Securities and Exchange Commission on December 11, 1996
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
HVIDE MARINE INCORPORATED
(Exact name of issuer as specified in its charter)
FLORIDA 65-0524593
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
2200 ELLER DRIVE, P.O. BOX 13038
FORT LAUDERDALE, FLORIDA 33316
(954) 523-2200
(Address of Principal Executive Offices and Zip Code)
1996 EMPLOYEE STOCK PURCHASE PLAN
EQUITY OWNERSHIP PLAN
STOCK OPTION PLAN FOR DIRECTORS
(Full titles of the plans)
GENE DOUGLAS, ESQ.
VICE PRESIDENT-LEGAL & GENERAL COUNSEL
2200 ELLER DRIVE, P.O. BOX 13038
FORT LAUDERDALE, FLORIDA 33316
(954) 523-2200
(Telephone number, including area code, of agent for service)
COPY TO:
MICHAEL JOSEPH, ESQ.
DYER ELLIS & JOSEPH
600 NEW HAMPSHIRE AVENUE, N.W.
WASHINGTON, D.C. 20037
1
<PAGE>
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
Title of securities Amount to Proposed maximum Proposed maximum Amount of
to be registered be registered offering price aggregate offering registration fee (1)
per share (1) price (1)
<S> <C> <C> <C> <C>
Class A Common Stock
$.001 Par Value
To be issued under 1996 Employee
Stock Purchase Plan............... 500,000 shares $17.2125(1) $10,125,000 $3,069
To be issued under Equity
Ownership Plan.................... 1,000,000 shares $13.889(2) $13,889,000 $4,209
To be issued under Stock Option
Plan for Directors................ 70,000 shares $16.125(3) $1,287,500 $343
Total............................. 1,570,000 shares $7,621
<FN>
(1) Estimated pursuant to Rule 457(h) under the Act solely for the purpose of
calculating the registration fee. This calculation is based upon 85% of
the $20.25 closing price per share of the Class A Common Stock on the
Nasdaq National Market on December 6, 1996 (the "Market Price").
(2) Estimated pursuant to Rule 457(h) under the Act solely for the purpose of
calculating the registration fee. The price of $13.889 per share
represents the weighted average exercise price of $12.00 per share for the
771,000 shares subject to options currently outstanding and the Market
Price as to the 229,000 shares subject to options available for future
issuance.
(3) Estimated pursuant to Rule 457(h) under the Act solely for the purpose of
calculating the registration fee. The price of $16.125 per share
represents the weighted average price of $12.00 per share for the 35,000
shares subject to options currently outstanding and the Market Price as to
the 35,000 shares subject to future issuance.
</FN>
</TABLE>
2
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The registrant hereby incorporates by reference into this registration
statement the following documents filed by the registrant with the Securities
and Exchange Commission:
(a) Quarterly Report on Form 10-Q for the quarter ended September
30, 1996;
(b) Quarterly Report on Form 10-Q for the quarter ended June 30,
1996;
(c) Report on Form 8-K filed with the Commission on August 23,
1996;
(d) The description of the registrant's Class A Common Stock,
$.001 par value, incorporated by reference to the
registrant's Registration Statement on Form S-1, Commission
File No. 33-78166; and
(e) The registrant's prospectus pursuant to Rule 424(b) under the
Securities Act of 1933, as amended, filed with the Commission
on August 8, 1996.
All documents subsequently filed by the registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, prior to the
filing of a post-effective amendment that indicates that all securities offered
have been sold or that deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference in this registration statement and to
be a part hereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company's Articles of Incorporation provides that the Company shall
indemnify each director and officer of the Company to the fullest extent
permitted from time to time by the laws of the State of Florida or any other
applicable laws as presently or hereafter in effect. Section 607.0850 of the
Florida Business Corporation Act currently provides as follows:
(1) A corporation shall have power to indemnify any
person who was or is a party to any proceeding (other than an action
by, or in the right of, the
3
<PAGE>
corporation), by reason of the fact that he is or was a director,
officer, employee, or agent of the corporation or is or was serving at
the request of the corporation as a director, officer, employee, or
agent of another corporation, partnership, joint venture, trust, or
other enterprise against liability incurred in connection with such
proceeding, including any appeal thereof, if he acted in good faith and
in a manner he reasonably believed to be in, or not opposed to, the
best interests of the corporation and, with respect to any criminal
action or proceeding, had no reasonable cause to believe his conduct
was unlawful. The termination of any proceeding by judgment, order,
settlement, or conviction or upon a plea of nolo contendere or its
equivalent shall not, of itself, create a presumption that the person
did not act in good faith and in a manner which he reasonably believed
to be in, or not opposed to, the best interests of the corporation or,
with respect to any criminal action or proceeding, had reasonable cause
to believe that his conduct was unlawful.
(2) A corporation shall have power to indemnify any person,
who was or is a party to any proceeding by or in the right of the
corporation to procure a judgment in its favor by reason of the fact
that he is or was a director, officer, employee, or agent of the
corporation or is or was serving at the request of the corporation as a
director, officer, employee, or agent of another corporation,
partnership, joint venture, trust, or other enterprise, against
expenses and amounts paid in settlement not exceeding, in the judgment
of the board of directors, the estimated expense of litigating the
proceeding to conclusion, actually and reasonably incurred in
connection with the defense or settlement of such proceeding, including
any appeal thereof. Such indemnification shall be authorized if such
person acted in good faith and in a manner he reasonably believed to be
in, or not opposed to, the best interests of the corporation, except
that no indemnification shall be made under this subsection in respect
of any claim, issue, or matter as to which such person shall have been
adjudged to be liable unless, and only to the extent that, the court in
which such proceeding was brought, or any other court of competent
jurisdiction, shall determine upon application that, despite the
adjudication of liability but in view of all circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such
expenses which such court shall deem proper.
(3) To the extent that a director, officer, employee, or agent
of a corporation has been successful on the merits or otherwise in
defense of any proceeding referred to in subsection (1) or subsection
(2), or in defense of any claim, issue, or matter therein, he shall be
indemnified against expenses actually and reasonably incurred by him in
connection therewith.
(4) Any indemnification under subsection (1) or subsection
(2), unless pursuant to a determination by a court, shall be made by
the corporation only as authorized in the specific case upon a
determination that indemnification of the director, officer, employee,
or agent is proper in the circumstances because he has met the
applicable standard of conduct set forth in subsection (1) or
subsection (2).
Such determination shall be made:
(a) By the board of directors by a majority vote of a quorum
consisting of directors who were not parties to such
proceeding;
4
<PAGE>
(b) If such a quorum is not obtainable or, even if obtainable,
by majority vote of a committee duly designated by the board
of directors (in which directors who are parties may
participate) consisting solely of two or more directors not at
the time parties to the proceeding;
(c) By independent legal counsel:
1. Selected by the board of directors prescribed in
paragraph
(a) or the committee prescribed in paragraph (b); or
2. If a quorum of the directors cannot be obtained for
paragraph (a) and the committee cannot be designated
under paragraph
(b) selected by majority vote of the full board of directors
(in which directors who are parties may participate); or
(d) By the stockholders by a majority vote of a quorum
consisting of stockholders who were not parties to such
proceeding or, if no such quorum is obtainable, by a majority
vote of stockholders who were not parties to such proceeding.
(5) Evaluation of the reasonableness of expenses and
authorization of indemnification shall be made in the same manner as
the determination that indemnification is permissible. However, if the
determination of permissibility is made by independent legal counsel,
persons specified by paragraph (4)(c) shall evaluate the reasonableness
of expenses and may authorize indemnification.
(6) Expenses incurred by an officer or director in defending a
civil or criminal proceeding may be paid by the corporation in advance
of the final disposition of such proceeding upon receipt of an
undertaking by or on behalf of such director or officer to repay such
amount if he is ultimately found not to be entitled to indemnification
by the corporation pursuant to this section. Expenses incurred by other
employees and agents may be paid in advance upon such terms or
conditions that the board of directors deems appropriate.
(7) The indemnification and advancement of expenses provided
pursuant to this section are not exclusive, and a corporation may make
any other or further indemnification or advancement of expenses of any
of its directors, officers, employees, or agents, under any bylaw,
agreement, vote of stockholders or disinterested directors, or
otherwise, both as to action in his official capacity and as to action
in another capacity while holding such office. However, indemnification
or advancement of expenses shall not be made to or on behalf of any
director, officer, employee, or agent if a judgment or other final
adjudication establishes that his actions, or omissions to act, were
material to the cause of action so adjudicated and constitute:
(a) A violation of the criminal law, unless the director,
officer, employee, or agent had reasonable cause to believe
his conduct was
5
<PAGE>
lawful or had no reasonable cause to believe his conduct was
unlawful;
(b) A transaction from which the director, officer, employee,
or agent derived an improper personal benefit;
(c) In the case of a director, a circumstance under which the
liability provisions of s. 607.0834 are applicable; or
(d) Willful misconduct or a conscious disregard for the best
interests of the corporation in a proceeding by or in the
right of the corporation to procure a judgment in its
favor or in a proceeding by or in the right of a
stockholder.
(8) Indemnification and advancement of expenses as provided in
this section shall continue as, unless otherwise provided when
authorized or ratified, to a person who has ceased to be a director,
officer, employee, or agent and shall inure to the benefit of the
heirs, executors, and administrators of such a person, unless otherwise
provided when authorized or ratified.
(9) Unless the corporation's articles of incorporation provide
otherwise, notwithstanding the failure of a corporation to provide
indemnification, and despite any contrary determination of the board or
of the stockholders in the specific case, a director, officer,
employee, or agent of the corporation who is or was a party to a
proceeding may apply for indemnification or advancement of expenses, or
both, to the court conducting the proceeding, to the circuit court, or
to another court of competent jurisdiction. On receipt of an
application, the court, after giving any notice that it considers
necessary, may order indemnification and advancement of expenses,
including expenses incurred in seeking court-ordered indemnification or
advancement of expenses, if it determines that:
(a) The director, officer, employee, or agent is entitled to
mandatory indemnification under subsection (3), in which case
the court shall also order the corporation to pay the director
reasonable expenses incurred in obtaining court-ordered
indemnification or advancement of expenses;
(b) The director, officer, employee, or agent is entitled to
indemnification or advancement of expenses, or both, by virtue
of the exercise by the corporation of its power pursuant to
subsection (7); or
(c) The director, officer, employee, or agent is fairly and
reasonably entitled to indemnification or advancement of
expenses, or both, in view of all the relevant circumstances,
regardless of whether such person met the standard of conduct
set forth in subsection (1), subsection (2), or subsection
(7).
(10) For purposes of this section, the term "corporation"
includes, in addition to the resulting corporation, any constituent
corporation (including any
6
<PAGE>
constituent of a constituent) absorbed in a consolidation or merger, so
that any person who is or was a director, officer, employee, or agent
of a constituent corporation, or is or was serving at the request of a
constituent corporation as a director, officer, employee, or agent of
another corporation, partnership, joint venture, trust, or other
enterprise, is in the same position under this section with respect to
the resulting or surviving corporation as he would have with respect to
such constituent corporation if its separate existence had continued.
(11) For purposes of this section:
(a) The term "other enterprises" includes employee benefit
plans;
(b) The term "expenses" includes counsel fees, including
those for appeal;
(c) The term "liability" includes obligations to pay a
judgment, settlement, penalty, fine (including an excise tax
assessed with respect to any employee benefit plan), and
expenses actually and reasonably incurred with respect to a
proceeding;
(d) The term "proceeding" includes any threatened, pending, or
completed action, suit, or other type of proceeding, whether
civil, criminal, administrative, or investigative, and whether
formal or informal;
(e) The term "agent" includes a volunteer;
(f) The term "serving at the request of the corporation"
includes any service as a director, officer, employee, or
agent of the corporation that imposes duties on such persons,
including duties relating to an employee benefit plan and its
participants or beneficiaries; and
(g) The term "not opposed to the best interest of the
corporation" describes the actions of a person who acts in
good faith and in a manner he reasonably believes to be in the
best interests of the participants and beneficiaries of an
employee benefit plan.
(12) A corporation shall have power to purchase and maintain
insurance on behalf of any person who is or was director, officer,
employee, or agent of the corporation or is or was serving at the
request of the corporation as a director, officer, employee, or agent
of another corporation, partnership, joint venture, trust, or other
enterprise against any liability asserted against him and incurred by
him in any such capacity or arising out of his status as such, whether
or not the corporation would have the power to indemnify him against
such liability under the provisions of this section.
The Underwriting Agreement (Exhibit 1) provides for indemnification by
the Underwriters of the Registrant, its directors and executive officers and by
the Registrant of the Underwriters for
7
<PAGE>
certain liabilities, including liabilities arising under the Securities Act of
1933, as amended (the "Act") and affords certain rights of contribution with
respect thereto.
The Registrant has purchased an insurance policy that provides for
indemnification of the Registrant's executive officers and directors for
liability resulting from their negligence, error, omission or breach of duty
while acting in their capacities as executive officers and directors on any
matter claimed against them by reason of their being executive officers and
directors.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4.1* Form of Class A Common Stock Certificate (Domestic)
4.2* Form of Class A Common Stock Certificate (Foreign)
5.1 Opinion of counsel as to the legality of securities being
registered
10.1 1996 Employee Stock Purchase Plan
10.2 Equity Ownership Plan
10.3 Stock Option Plan for Directors
23.1 Consent of Ernst & Young
23.2 Consent of Dyer Ellis & Joseph (included as part of Exhibit
5.1)
23.3 Consent of Deloitte & Touche LLP
23.4 Consent of Pannell Kerr Forster of Texas, P.C.
24.1 Power of Attorney
24.2 Certificate of Secretary
* Filed as exhibit of same number to the Registrant's Registration Statement
on Form S-1, File No. 33-78166, and incorporated herein by reference.
ITEM 9. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
8
<PAGE>
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the registration
statement; and
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed by
the registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in
the registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Securities Act of 1933 and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
9
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant has duly caused this amendment to the registration statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in
Washington, D.C. on the 11th day of December, 1996.
HVIDE MARINE INCORPORATED
By: *
J. Erik Hvide
Chairman, President and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
amendment to the registration statement has been signed by the following persons
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
* Chairman of the Board, President, Chief December 11, 1996
- -----------------------
J. Erik Hvide Executive Officer and Director (principal
executive officer)
* Executive Vice President--Chief Financial December 11, 1996
- -----------------------
John H. Blankley Officer and Director
* Executive Vice President and Director December 11, 1996
- -----------------------
Donald L. Caldera
* Controller (principal accounting officer) December 11, 1996
- -----------------------
John J. Krumenacker
* Executive Vice President and Director December 11, 1996
- -----------------------
Eugene F. Sweeney
* Director December 11, 1996
- -----------------------
Robert B. Calhoun, Jr.
* Director December 11, 1996
- -----------------------
Gerald Farmer
* Director December 11, 1996
- -----------------------
Jean Fitzgerald
10
<PAGE>
*
- -----------------------
Director December 11, 1996
John Lee
* Director December 11, 1996
- -----------------------
Walter C. Mink
* Director December 11, 1996
- -----------------------
Robert Rice
* Director December 11, 1996
- -----------------------
Raymond B. Vickers
</TABLE>
*By: /s/ MICHAEL JOSEPH
Michael Joseph
Attorney-in-Fact
11
<PAGE>
INDEX TO EXHIBITS
EXHIBIT SEQUENTIALLY
NUMBER DESCRIPTION OF DOCUMENT NUMBERED PAGE
5.1 Opinion of counsel as to the legality of securities being registered
10.1 1996 Employee Stock Purchase Plan
10.2 Equity Ownership Plan
10.3 Stock Option Plan for Directors
23.1 Consent of Ernst & Young
23.2 Consent of Dyer Ellis & Joseph (included as part of Exhibit 5.1)
23.3 Consent of Deloitte & Touche LLP
23.4 Consent of Pannell Kerr Forster of Texas, P.C.
24.1 Power of Attorney
24.2 Certificate of Secretary
12
December 9, 1996
Hvide Marine Incorporated
2200 Eller Drive
Ft. Lauderdale, FL 33316
Ladies and Gentlemen:
We have acted as counsel for Hvide Marine Incorporated, a Florida corporation
(the"Company"), in connection with the issuance and sale pursuant to the
Company's registration statement on Form S-8 (the "Registration Statement") of
up to an aggregate of 1,570,000 shares of its Class A Common Stock, par value
$0.001 per share (the "Shares") that may be issued from time to time pursuant to
the Company's 1996 Employee Stock Purchase Plan, Equity Ownership Plan, and
Stock Option Plan for Directors (collectively, the "Plans"). Based upon our
examination of such corporate records and other documents and such questions of
law as we have deemed necessary and appropriate, we are of the opinion that the
Shares have been duly authorized and, when sold as provided in the Plans, will
be validly issued, fully paid, and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
Dyer Ellis & Joseph PC
HVIDE MARINE INCORPORATED
1996 EMPLOYEE STOCK PURCHASE PLAN
ARTICLE I - PURPOSE
1.01 Purpose
The Hvide Marine Incorporated 1996 Employee Stock Purchase Plan (the
"Plan") is intended to provide employees of the Company with an opportunity to
acquire a proprietary interest in the Company through the purchase of shares of
the Common Stock of the Company. It is the intention of the Company to have the
Plan qualify as an "employee stock purchase plan" under Code Section 423. The
provisions of the Plan shall be construed so as to extend and limit
participation in a manner consistent with the requirements of that section of
the Code.
ARTICLE II - DEFINITIONS
2.01. "Account" shall mean the separate bookkeeping account which shall
be established for each Participant to record the payroll deductions made on his
behalf to purchase shares of Common Stock under the Plan.
2.02. "Code" shall mean the Internal Revenue Code of 1986, as now
or hereafter amended.
2.03. "Committee" shall mean the individuals described in Article
XI.
2.04. "Common Stock" shall mean the Company's Class A common stock.
2.05. "Company" shall mean Hvide Marine Incorporated, a Florida
corporation and any Subsidiary Corporations and shall be deemed to include any
corporation into which such entity shall be merged or consolidated.
2.06. "Employee" means any person who is employed by the Company
whose customary employment is more than 20 hours per week.
2.07 "Initial Public Offering" shall mean the first instance in which
the Company's Common Stock is offered for sale to the public following
successful registration of the Common Stock with the Securities and Exchange
Commission.
2.08. "Offering" shall mean the offer of shares of Common Stock to
Participants during each Offering Period.
2.09. "Offering Commencement Date" shall mean the first date of
each Offering
1
<PAGE>
Period as set forth in Section 4.01 hereof.
2.10. "Offering Period" shall mean each period from an Offering
Commencement Date until the respective Offering Termination Date as set forth in
Section 4.01 hereof.
2.11. "Offering Termination Date" shall mean the last date of each
Offering Period as set forth in Section 4.01 hereof.
2.12. "Participant" shall mean any Employee who becomes eligible to
participate in this Plan as set forth in Section 3.01 hereof and who authorizes
payroll deductions under this Plan.
2.13. "Subsidiary Corporation" shall mean any present or future
corporation or other entity which (i) would be a "subsidiary corporation" of
the Company (as that term is defined in Section 421 et. seq. of the Code) and
(ii) is designated as a sponsor of the Plan by the Committee.
ARTICLE III - ELIGIBILITY AND PARTICIPATION
3.01. Eligibility Requirements
(a) Any Employee who has been employed by the Company for a
period of 90 days on the first Offering Date, as specified in Section 4.01,
shall be eligible to participate in that Offering and each Offering thereafter.
(b) Any other Employee shall be eligible to participate in
Offerings under the Plan as of the first January 1 on or after the date such
Employee has completed ninety (90) days of full and continuous employment with
the Company.
3.02. Restrictions on Participation
Notwithstanding any provisions of the Plan to the contrary, no Employee
shall be granted an option to participate in the Plan if, immediately after the
grant, such Employee would own stock, and/or hold outstanding options to
purchase stock, possessing 5% or more of the total combined voting power or
value of all classes of stock of the Company (for purposes of this paragraph,
the rules of Section 424(d) of the Code shall apply in determining stock
ownership of any Employee).
3.03. Commencement of Participation.
An eligible Employee may become a Participant by completing an
authorization for a payroll deduction on the form provided by the Company and
filing it with the Committee on or before the date set therefor by the
Committee, which date shall be on or before the Offering Commencement Date for
each Offering. Payroll deductions for a Participant shall commence on or after
the applicable Offering Commencement Date when
2
<PAGE>
his authorization for a payroll deduction becomes effective and shall continue
until terminated by the Participant or by a withdrawal as provided herein.
ARTICLE IV - OFFERINGS
4.01. Offerings.
The Plan will be implemented by quarterly Offerings of the Company's
Common Stock beginning on the Offering Commencement Dates and terminating on the
Offering Termination Dates indicated below:
The first Offering Period shall begin as soon as
administratively feasible following approval by the shareholders on an Offering
Commencement Date set forth below.
The Offering Periods will begin and end on the following
dates:
Offering Offering
Commencement Termination Date
Date
Each January 1 The next following March 31
Each April 1 The next following June 30
Each July 1 The next following September 30
Each October 1 The next following December 31
Each period from an Offering Commencement Date until the respective
Offering
3
<PAGE>
Termination Date is referred to as the "Offering Period".
The Board of Directors of the Company shall have the right to change
the duration of the Offering Periods and their respective Offering Commencement
Dates and Offering Termination Dates so long as any such change does adversely
affect the Plan's qualification as an employee stock purchase plan under Code
Section 423.
Notwithstanding anything contained herein to the contrary, no offerings
may be made under this Plan until the date of, or following, an Initial Public
Offering of the Company's Common Stock.
4.02. Stockholder Approval.
The Plan shall be submitted for approval by the stockholders of the
Company within twelve (12) months before or after the Plan is adopted by the
Board of Directors. Options granted hereunder shall be subject to the condition
that this Plan shall be approved by a majority of the stockholders of the
Company in the manner contemplated by Code Section 423(b)(2). If not approved by
the stockholders of the Company within the required time, the Plan shall
terminate, all options hereunder shall be canceled and shall be of no further
force and effect, and all persons who shall have authorized payroll deductions
pursuant to the terms of the Plan shall be entitled to the prompt refund in cash
of all sums withheld from them pursuant to the Plan.
ARTICLE V - PAYROLL DEDUCTIONS
5.01. Amount of Deduction.
At the time a Participant files his authorization for payroll
deduction, he shall elect to have deductions made from his pay on each payday
during the time he is a Participant in an Offering at a rate not to exceed 10%
of his compensation during any Offering Period.
5.02. Participant Account.
All payroll deductions made for a Participant shall be credited to his
Account under the Plan. A Participant may not make any separate cash payment
into such account.
5.03. Changes in Payroll Deductions
A Participant may discontinue his payroll deductions at any time and
may withdraw all amounts in his Account as provided in Article VIII, but no
other change to a Participant's payroll deductions can be made during an
Offering Period. Once a
4
<PAGE>
Participant has elected payroll deductions for an Offering Period, he may not
alter the amount of his payroll deductions until the applicable Offering
Termination Date. If a Participant discontinues payroll deductions during an
Offering Period or withdraws the amount in his Account, such Participant shall
not be allowed to recommence payroll deductions until the next January 1.
5.04. Leave of Absence.
If a Participant goes on a leave of absence, such Participant shall
have the right to elect: (a) to request withdrawal of the balance in his Account
as a result of hardship pursuant to Section 8.01 hereof, or (b) to discontinue
contributions to the Plan but remain a Participant in the Plan with respect to
the amount then in his account.
5
<PAGE>
ARTICLE VI - GRANTING OF OPTION
6.01. Number of Option Shares.
As of each Offering Termination Date, a Participant shall be deemed to
have been granted an option to purchase the whole number of shares of the Common
Stock equal to an amount determined as follows: (i) the amount in such
Participant's Account as of such Offering Termination Date, divided by (ii) an
amount equal to the "Applicable Percentage" of the market value of the Common
Stock on such Offering Termination Date; with the result rounded down to the
nearest whole number. The Applicable Percentage shall be: (i) determined by the
Board of Directors for each Offering Period, (ii) not less than 85% nor more
than 100%, and (iii) announced by the Company on or before the beginning of each
Offering Period. The Applicable Percentage announced for any Offering Period
shall apply for such Offering Period and any subsequent Offering Periods until
and unless a change in Applicable Percentage is announced. The market value of
the Common Stock shall be determined as provided in Section 6.02 below.
Any options granted under the Plan before the date the stockholders of
the Company (acting at a duly called meeting of such stockholders) are treated
under Code Section 423(b)(2) as having approved the Plan shall be granted
subject to such approval and, if such stockholders fail to approve the Plan on
or before all such options automatically shall be null and void.
6.02. Option Price
The option price of stock purchased with payroll deductions made during
each Offering Period for Participant therein shall be equal to the "Applicable
Percentage" (as determined in accordance with Section 6.01) of the closing price
of the stock on the Offering Termination Date or the Offering Commencement Date
for such Offering period, whichever is lower. In the event that the Offering
Closing Date or the Offering Commencement date is not a business day, the
applicable closing price for that date shall be the nearest prior business day
on which trading occurred on the NASDAQ Stock Market or other stock exchange on
which the Common Stock is actively traded. If the Common Stock is not admitted
to trading on any of the aforesaid dates for which closing prices of the stock
are to be determined, then reference shall be made to the fair market value of
the stock on that date, as determined on such basis as shall be established or
specified for that purpose by the Committee.
6.03. Statutory Limitation
No option granted by operation of the Plan to any Participant in any
Offering shall permit his rights to purchase shares of Common Stock under this
Plan or under any other employee stock purchase plan (within the meaning of Code
Section 423) of the Company to accrue (within the meaning of Code Section
423(b)(8) at a rate which exceeds $25,000 in any calendar year. Such value shall
be determined as of the Offering Termination Dates within each calendar year (or
portion of such year) in which such option would be
6
<PAGE>
outstanding, and the options granted by operation of the Plan under Section 6.01
to any Participant automatically shall be limited by this Section 6.03.
ARTICLE VII - EXERCISE OF OPTION
7.01. Automatic Exercise.
Unless a Participant is permitted to withdraw his payroll deductions as
a result of hardship, his option for the purchase of stock with payroll
deductions made during any Offering Period will be deemed to have been exercised
automatically on the Offering Termination Date applicable to such Offering
Period, for the purchase of the number of whole shares of stock which the
accumulated payroll deductions in his Account at that time will purchase at the
applicable option price. Any excess amount in his Account at that time will
remain in his Account for future applications in accordance with the terms of
the Plan.
7.02. Fractional Shares
Fractional shares will not be issued under the Plan and any accumulated
payroll deductions which would have been used to purchase fractional shares will
remain in each Participant's Account and carried over to the next Offering
Period.
7.03. Election Not to Exercise Option.
Except in the case of a hardship as determined by the Committee, once
payroll deductions commence for an Offering Period, a Participant will be
required to exercise any options granted to him with respect to such Offering
Period.
7.04. Transferability of Option.
During a Participant's lifetime, options held by such Participant shall
be exercisable only by that Participant and no Participant in the Plan shall
have the right to assign his interest in the Plan.
7.05. Delivery of Stock; Nominee Record Holder.
As promptly as practicable after the Offering Termination Date of each
Offering, the Company will deliver to each Participant, as appropriate, the
stock purchased upon exercise of his option. Notwithstanding the foregoing, at
the option of the Committee, the stock purchased may be issued in the name of a
nominee (the "Nominee") on behalf of all Participants or on behalf of all
Participants to whom fewer than a specified number of shares are to be issued.
If Common Stock is issued to a Nominee on behalf of all or some Participants,
then the following shall apply: (i) each such Participant shall have all
ownership rights attributable to the ownership of such Common Stock on his
behalf, and (ii) the Company and the Nominee shall cause separate stock
certificates to be issued in
7
<PAGE>
the name of and delivered to such a Participant upon the earliest to occur of
his request for a separate certificate in his name, his termination of
employment with the Company for any reason whatsoever or the termination of the
Plan. The Company shall indemnify any such Nominee and hold him harmless from
any and all actions, loss, damage or liability suffered by him as a result of
serving as the Nominee for the Participants hereunder except to the extent
caused by such Nominee's gross negligence or willful misconduct. The Company
shall have the right to remove and replace any Nominee. By prior written notice
to the Company, the Nominee may resign. Any Nominee removed or resigning shall
take such action as may be necessary or desirable to transfer to the successor
Nominee selected by the Company all shares of Common Stock then in his name as
Nominee.
ARTICLE VIII - WITHDRAWAL
8.01. In General.
In the event of a severe economic hardship, a Participant may request
permission to withdraw payroll deductions credited to his Account under the Plan
by giving written notice to the Committee. The Committee in its sole discretion
will determine whether a hardship exists. If the Committee does decide that a
hardship exists, all of the Participant's payroll deductions credited to his
Account will be paid to him, and such Participant shall not be allowed to again
participate or authorize further payroll deductions under the Plan until the
January 1 next following the date of the withdrawal notice.
8.02. Termination of Employment.
Upon termination of a Participant's employment for any reason,
including retirement (but excluding death while in the employ of the Company),
the payroll deductions credited to his Account will be returned to him.
8.03. Termination of Employment Due to Death.
Upon termination of the Participant's employment because of his death,
his beneficiary (as defined in Section 12.01) shall have the right to elect, by
written notice given to the Committee prior to the Offering Termination Date,
either: (a) to withdraw all of the payroll deductions credited to the
Participant's Account under the Plan, or (b) to exercise the Participant's
option for the purchase of stock on the Offering Termination Date next following
the date of the Participant's death for the purchase of the number of whole
shares of stock which the accumulated payroll deductions in the Participant's
Account at the date of the Participant's death will purchase at the applicable
option price, in which event, any excess in such Account will be returned to
said beneficiary. In the event that no such written notice of election shall be
duly received by the Committee, the beneficiary shall automatically be deemed to
have elected, pursuant to paragraph (b), to exercise the Participant's option to
purchase stock.
8
<PAGE>
8.04. Leave of Absence.
A Participant on leave of absence shall subject to the election made by
such Participant pursuant to Section 5.04, continue to be a Participant in the
Plan with respect to the amounts then in his Account so long as such Participant
is on continuous leave of absence.
ARTICLE IX - NO INTEREST
9.01. No Interest.
No interest will be paid or allowed on any money paid into the Plan or
credited to the account of any Participant.
ARTICLE X - STOCK
10.01. Maximum Number of Shares.
The maximum number of shares which shall be issued under the Plan,
subject to adjustment upon changes in capitalization of the Company as provided
in Section 12.04, shall be 500,000 shares for all Offerings. If the total number
of shares for which options are exercised on any Offering Termination Date in
accordance with Article VI exceeds the maximum number of shares available for
purchase hereunder, the Company shall make a pro rata allocation of the shares
available for delivery and distribution in as nearly a uniform manner as shall
be practicable and as it shall determine to be equitable, and the balance of
payroll deductions credited to the account of each Participant under the Plan
shall be returned to him as promptly as possible.
10.02. Participant's Interest in Option Stock.
The Participant will have no interest in stock covered by any option
granted to him hereunder until such option has been exercised.
10.03. Registration of Stock.
Stock to be delivered to a Participant under the Plan will be
registered in the name of the Participant or in the name of the Nominee for such
Participant as provided in Section 7.05 hereof.
Restrictions on Exercise.
The Board of Directors may, in its discretion, require as conditions to
the exercise of any option that the shares of Common Stock reserved for issuance
upon the exercise
9
<PAGE>
of the option shall have been duly listed, upon official notice of issuance,
upon a stock exchange, and that either:
(a) a Registration Statement under the Securities Act of
1933, as amended, with respect to said shares shall be effective, or
(b) the Participant shall have represented at the time of
purchase, in form and substance satisfactory to the Company, that it is his
intention to purchase the shares for investment and not for resale or
distribution.
ARTICLE XI - ADMINISTRATION
11.01. Appointment of Committee.
The Board of Directors shall appoint a committee (the "Committee") to
administer the Plan, which may consist of persons who may or may not be members
of the Board of Directors.
11.02. Authority of Committee.
Subject to the express provisions of the Plan, the Committee shall have
plenary authority in its discretion to interpret and construe any and all
provisions of the Plan, to adopt rules and regulations for administering the
Plan and to make all other determinations deemed necessary or advisable for
administering the Plan. The Committee's determination on the foregoing matters
shall be conclusive.
11.03 Rules Governing the Administration of the Committee.
The Board of Directors may from time to time appoint members of the
Committee in substitution for or in addition to members previously appointed and
may fill vacancies, however caused, in the Committee. The Committee may select
one of its members as its Chairman and shall hold its meetings at such times and
places as it shall deem advisable and may hold telephonic meetings. A majority
of its members shall constitute a quorum. All determinations of the Committee
shall be made by a majority of its members. The Committee may correct any defect
or omission or reconcile any inconsistency in the Plan, in the manner and to the
extent it shall deem desirable. Any decision or determination reduced to writing
and signed by a majority of the members of the Committee shall be as fully
effective as if it had been made by a majority vote at a meeting duly called and
held. The Committee may appoint a secretary and shall make such rules and
regulations for the conduct of its business as it shall deem advisable.
11.04. Notices.
All notices and other communications from a Participant to the
Committee, under or in connection with, this Plan shall be deemed to have been
filed with the Committee when actually received in the form specified by the
Committee at the location and by the
10
<PAGE>
person designated by the Committee for the receipt of such notices and
communications.
ARTICLE XII - MISCELLANEOUS
12.01. Designation of Beneficiary.
A Participant may file a written designation of a beneficiary who is to
receive any stock and/or cash. Such designation of beneficiary may be changed by
the Participant at any time by written notice to the Committee. Upon the death
of a Participant and upon receipt by the Company of proof of identity and
existence at the Participant's death of a beneficiary validly designated by him
under the Plan, the Company shall deliver such stock and/or cash to such
beneficiary validly designated under the Plan who is living at the time of such
Participant's death, the Company shall deliver such stock and/or cash to the
executor or administrator of the estate of the Participant, or if no such
executor or administrator has been appointed (to the knowledge of the Company),
the Company, in its discretion, may deliver such stock and/or cash to the spouse
or to any one or more dependents of the Participant as the Company may
designate. No beneficiary shall, prior to the death of the Participant by whom
he has been designated, acquire any interest in the stock or cash credited to
the Participant under the Plan.
12.02. Transferability.
Neither payroll deductions credited to a Participant's Account nor any
rights with regard to the exercise of an option or to receive stock under the
Plan may be assigned, transferred, pledged or otherwise disposed of in any way
by the Participant other than (i) by will or the laws of descent and
distribution, or (ii) stock held by the Nominee for the benefit of such
Participant as provided in Section 7.05 hereof. Any such attempted assignment,
transfer, pledge or other disposition shall be without effect, except that the
Company may treat such act as an election to withdraw funds in accordance with
the terms of the Plan.
12.03. Use of Funds.
All payroll deductions received or held by the Company under the Plan
may be used by the Company for any corporate purpose and the Company shall not
be obligated to segregate such payroll deductions.
12.04. Adjustment Upon Changes in Capitalization.
(a) If the outstanding shares of Common Stock of the Company
have increased, decreased, changed into or been exchanged for a different number
or kind of shares or securities of the Company through reorganization, merger,
recapitalization, reclassification, stock dividend, stock split, reverse stock
split or similar transaction,
11
<PAGE>
appropriate and proportionate adjustments may be made by the Committee in the
number and/or kind of shares which are subject to purchase under outstanding
options and on the option exercise price applicable to such outstanding options.
In addition, in any such event, the number and/or kind of shares which may be
offered in the Offerings described in Article IV hereof and the maximum number
of shares which may be issued under the Plan as set forth in Section 10.01 shall
also be proportionately adjusted.
(b) Upon the dissolution or liquidation of the Company, or
upon a reorganization, merger or consolidation of the Company with one or more
corporation as a result of which the Company is not the surviving corporation,
or upon a sale of substantially all of the property or stock of the Company to
another corporation, the holder of each option then outstanding under the Plan
will thereafter be entitled to receive at the next Offering Termination Date
upon the exercise of such option for each share as to which such option shall be
exercised, as nearly as reasonably may be determined, the cash, securities
and/or property which a holder of one share of the Common Stock was entitled to
receive upon and at the time of such transaction. The Board of Directors shall
take such steps in connection with such transactions as the Board shall deem
necessary to assure that the provisions of this Section 12.04 shall thereafter
be applicable, as nearly as reasonably may be determined, in relation to the
said cash, securities and/or property as to which such holder of such option
might thereafter be entitled to receive.
12.05. Amendment and Termination
(a) The Plan shall terminate as of the earliest of: (i) the
date the maximum number of shares of Common Stock available for purchase
hereunder shall have been purchased in accordance with the terms of the Plan, or
(ii) the date the Plan is terminated as provided in paragraph (b) below.
(b) The Board of Directors shall have complete power and
authority to terminate or amend the Plan; provided, however, that the Board of
Directors shall not, without the approval of the stockholders of the Corporation
(i) increase the maximum number of shares which may be issued under the Plan
(except pursuant to Section 12.04); or (ii) amend the requirements as to the
class of Employees eligible to participate in the purchase of stock under the
Plan. No termination, modification or amendment of the Plan may, without the
consent of a Participant then having an option under the Plan to purchase stock,
adversely affect the rights of such Participant under such option.
12.06. Effective Date.
The Plan shall become effective as of the date it is approved by a
majority of the shareholders of the Company.
12.07. No Employment Rights.
12
<PAGE>
The Plan does not, directly or indirectly, create any right for the
benefit of any Employee or class of Employees to purchase any shares under the
Plan, or create in any Employee or class of Employees any right with respect to
continuation of employment by the Company, and it shall not be deemed to
interfere in any way with the Company's right to terminate, or otherwise modify,
an Employee's employment at any time.
12.08. Effect of Plan.
The provisions of the Plan shall, in accordance with its terms, be
binding upon, and inure to the benefit of, all successors of each Employee
participating in the Plan, including, without limitation, such Employee's estate
and the executors, administrators or trustees thereof, heirs and legatees, and
any receiver, trustee in bankruptcy or representative of creditors of such
Employee.
12.09. Governing Law.
The laws of the State of Florida will govern all matters relating to
the Plan except to the extent superseded by the laws of the United States.
12.10. Headings.
The headings to sections in the Plan have been included for convenience
of reference only and shall not affect the interpretation of the Plan.
13
HVIDE MARINE INCORPORATED
EQUITY OWNERSHIP PLAN
<PAGE>
TABLE OF CONTENTS
Page
SECTION 1 DEFINITIONS 1
1.1 Definitions 1
SECTION 2 GENERAL TERMS 4
2.1 Purpose of the Plan 4
2.2 Stock Subject to the Plan 4
2.3 Administration of the Plan 4
2.4 Eligibility and Limits 5
SECTION 3 TERMS OF AWARDS 5
3.1 Terms and Conditions of All Awards 5
3.2 Terms and Conditions of Options 6
(a) Option Price 6
(b) Option Term 6
(c) Payment 6
(d) Conditions to the Exercise of an Option 6
(e) Termination of Incentive Stock Option 7
(f) Special Provisions for Certain
Substitute Options 7
3.3 Terms and Conditions of Stock Appreciation Rights 7
(a) Payment 7
(b) Conditions to Exercise 7
3.4 Terms and Conditions of Stock Awards 8
3.5 Terms and Conditions of Dividend Equivalent Rights 8
(a) Payment 8
(b) Conditions to Payment 8
3.6 Terms and Conditions of Performance Unit Awards 8
(a) Payment 8
(b) Conditions to Payment 9
3.7 Terms and Conditions of Phantom Shares 9
(a) Payment 9
(b) Conditions to Payment 9
3.8 Treatment of Awards Upon Termination of Employment 9
i
<PAGE>
SECTION 4 RESTRICTIONS ON STOCK 9
4.1 Escrow of Shares 9
4.2 Forfeiture of Shares 10
4.3 Restrictions on Transfer 10
SECTION 5 GENERAL PROVISIONS 10
5.1 Withholding 10
5.2 Changes in Capitalization; Merger; Liquidation 11
5.3 Compliance with Code 11
5.4 Right to Terminate Employment 12
5.5 Restrictions on Delivery and Sale of Shares; Legends12
5.6 Non-alienation of Benefits 12
5.7 Termination and Amendment of the Plan 12
5.8 Stockholder Approval 12
5.9 Choice of Law 12
5.10 Effective Date of Plan 13
ii
<PAGE>
HVIDE MARINE INCORPORATED
EQUITY OWNERSHIP PLAN
Hvide Marine Incorporated hereby establishes this Plan to be called the Equity
Ownership Plan to encourage certain employees of the Company to acquire Common
Stock of the Company, to make monetary payments to certain employees based upon
the value of the Common Stock, or based upon achieving certain goals on a basis
mutually advantageous to such employees and the Company and thus provide an
incentive for continuation of the efforts of the employees for the success of
the Company, for continuity of employment and to further the interests of the
shareholders.
SECTION 1DEFINITIONS
1.1 Definitions. Whenever used herein, the masculine pronoun shall be
deemed to include the feminine, the singular to include the plural, unless the
context clearly indicates otherwise, and the following capitalized words and
phrases are used herein with the meaning thereafter ascribed:
(a) "Award" means any Stock Option, Stock Appreciation
Right, Restricted Stock or Performance Award granted under the Plan.
(b) "Beneficiary" means the person or persons designated by a
Participant to exercise an Award in the event of the Participant's death while
employed by the Company, or in the absence of such designation, the executor or
administrator of the Participant's estate.
(c) "Board" means the Board of Directors of the Company.
(d) "Cause" means conduct by the Participant amounting to (1)
fraud or dishonesty against the Company, (2) willful misconduct, repeated
refusal to follow the reasonable directions of the Board of Directors of the
Company, or knowing violation of law in the course of performance of the duties
of Participant's employment with the Company, (3) repeated absences from work
without a reasonable excuse, (4) repeated intoxication with alcohol or drugs
while on the Company's premises during regular business hours, (5) a conviction
or plea of guilty or nolo contendere to a felony or a crime involving
dishonesty, or (6) a breach or violation of the terms of any employment or other
agreement to which Participant and the Company are party.
(e) "Change in Control" shall be deemed to have occurred if
(i) a tender offer shall be made and consummated of the ownership of 30% or more
of the outstanding voting securities of the Company, (ii) the Company shall be
merged or consolidated with another corporation and as a result of such merger
or consolidation less than 70% of the outstanding voting securities of the
surviving or resulting corporation shall be owned in the aggregate by the former
shareholders of the Company, other than affiliates (within the meaning of the
Securities Exchange Act of 1934) of any party to such merger or consolidation,
(iii) the Company shall sell
-1-
<PAGE>
substantially all of its assets to another corporation which is not a wholly
owned company, or (iv) a person, within the meaning of Section 3(a)(9) or of
Section 13(d)(3) (as in effect on the date hereof) of the securities Exchange
Act of 1934, shall acquire 30% or more of the outstanding voting securities of
the Company ( whether directly, indirectly beneficially or of record). For
purposes hereof, ownership of voting securities shall take into account and
shall include ownership as determined by applying the provisions of Rule
13d-3(d)(1)(i) ( as in effect on the date hereof) pursuant to the Securities
Exchange Act of 1934.
(f) "Code" means the Internal Revenue Code of 1986, as
amended.
(g) "Committee" means the Compensation Committee of the
Board of Directors.
(h) "Company" means Hvide Marine Incorporated, a Florida
corporation.
(i) "Disability" has the same meaning as provided in the
retirement plan maintained by the Company. In the event of a dispute, the
determination of Disability shall be made by the Committee. In making its
determination the Committee may, but is not required to, rely on advice of a
physician competent in the area to which such Disability relates. The Committee
may make the determination in its sole discretion and any decision of the
Committee will be binding on all parties.
(j) "Disposition" means any conveyance, sale, transfer,
assignment, pledge or hypothecation, whether outright or as security, inter
vivos or testamentary, with or without consideration, voluntary or involuntary.
(k) "Dividend Equivalent Rights" means certain rights to
receive cash payments as described in Plan Section 3.5.
(l) "Fair Market Value" means, for any particular date,(i) for
any period during which the Stock shall not be listed for trading on a national
securities exchange, but when prices for the Stock shall be reported by the
National Market System of the National Association of Securities Dealers
Automated Quotation System ("NASDAQ"), the last transaction price per share as
quoted by the National Market System of NASDAQ, (ii) for any period during which
the Stock shall not be listed for trading on a national securities exchange or
its price reported by the National Market System of NASDAQ, but when prices for
the Stock shall be reported by NASDAQ, the closing bid price as reported by
NASDAQ, (iii) for any period during which the Stock shall be listed for trading
on a national securities exchange, the closing price per share of Stock on such
exchange as of the close of such trading day, or (iv) the market price per share
of Stock as determined by a qualified valuation expert selected by the Board in
the event neither (i), (ii), or (iii) above shall be applicable. If the Fair
Market Value is to be determined as of a day when the securities markets are not
open, the Fair Market Value on that day shall be the Fair Market Value on the
next succeeding day when the markets are open.
(m) "Incentive Stock Option" means an incentive stock option,
as defined in Code Section 422, described in Plan Section 3.2.
-2-
<PAGE>
(n) "Non-Qualified Stock Option" means a stock option, other
than an option qualifying as an Incentive Stock Option, described in Plan
Section 3.2
(o) "Option" means a Non-Qualified Stock Option or an
Incentive Stock Option.
(p) "Over 10% Owner" means an individual who at the time an
Incentive Stock Option is granted owns Stock possession more than 10% of the
total combined voting power of the Company or one of its Parents of
Subsidiaries, determined by applying the attribution rules of Code Section
424(d).
(q) "Parent" means any corporation (other than the Company) in
an unbroken chain of corporation ending with the Company if, with respect to
Incentive Stock Options, at the time of granting of the Option, each of the
corporation other than the company owns stock possessing 50% or more of the
total combined voting power of all classes of stock in one of the other
corporations in the chain.
(r) "Participant" means an individual who receives an
Award hereunder.
(s) "Performance Unit Award" refers to a performance unit
award described in Plan Section 3.6.
(t) "Phantom Shares" refers to the rights described in
Plan Section 3.7.
(u) "Plan" means the Hvide Marine Incorporated Equity
Ownership Plan.
(v) "Retirement" means a Participant's termination of
employment after attaining age 62.
(w) "Stock" means the Company's Class A common stock.
(x) "Stock Agreement" means an agreement between the
Company and a Participant or other documentation evidencing an Award.
(y) "Stock Appreciation Right" means a stock appreciation
right described in Plan Section 3.3.
(z) "Stock Award" means a stock award described in Plan
Section 3.4.
(aa) "Subsidiary" means any corporation (other than the
Company) in an unbroken chain of corporations beginning with the Company if,
with respect to Incentive Stock Options, at the time of the granting of the
Option, each of the corporations other than the last corporation in the unbroken
chain owns stock possession 50% or more of the total combined voting power of
all classes of stock in one of the other corporations in the chain.
(ab) "Termination of Employment" means the termination of the
employee- employer relationship between a Participant and the Company and its
affiliates regardless of the fact that severance or similar payments are made to
the Participant, for any reason, including, but not by way of limitation, a
termination by resignation, discharge, death, Disability or Retirement. The
Committee shall, in its absolute discretion, determine the effect of all matters
and questions relating to Termination of Employment, including, but not by way
of limitation, the question of whether a leave of absence constitutes a
Termination of Employment, or whether a Termination of Employment is for Cause.
In the event that a Participant who has been granted a Non- Qualified Stock
Option hereunder ceases to be an employee but remains a member of the Board, no
Termination of Employment shall be deemed to have occurred until the Participant
ceases to be a member of the Board.
(ac) "Vested" means that an Award is nonforfeitable and
exercisable with regard to a designated number of shares of Stock.
SECTION 2 GENERAL TERMS
2.1 Purpose of the Plan. The Plan is intended to (a) provide incentive
to officers and key employees of the Company and its affiliates to stimulate
their efforts toward the continued success of the Company and to operate and
manage the business in a manner that will provide for the long-term growth and
profitability of the Company; (b) encourage stock ownership by officers and key
employees by providing them with a means to acquire a proprietary interest in
the Company by acquiring shares of Stock or to receive compensation which is
based upon appreciation in the value of Stock; and (c) provide a means of
obtaining and rewarding key personnel.
2.2 Stock Subject to the Plan. Subject to adjustment in accordance with
Section 5.2, 1,000,000 shares of Stock (the "Maximum Plan Shares") are hereby
reserved and subject to issuance under the Plan. At no time shall the Company
have outstanding Awards and shares of Stock issued in respect to Awards in
excess of the Maximum Plan Shares. To the extent permitted by law, the shares of
Stock attributable to the nonvested, unpaid, unexercised, unconverted or
otherwise unsettled portion of any Award that is forfeited, canceled or expires
or terminates for any reason without becoming vested, paid, exercised, converted
or otherwise settled in full shall again be available for purposes of the Plan.
2.3 Administration of the Plan. The Plan shall be administered by the
Committee. The Committee shall have full authority in its discretion to
determine the officers and key employees of the Company or its affiliates to
whom Awards shall be granted and the terms and provisions of Stock Incentives,
subject to the Plan. Subject to the provisions of the Plan, the Committee shall
have full and conclusive authority to interpret the Plan; to prescribe, amend
and rescind rules and regulations relating to the Plan; to determine the terms
and provisions of the respective Stock Agreements and to make all other
determinations necessary or advisable for the proper administration of the Plan.
The committee's determination under the Plan need not be uniform and may be made
by it selectively among persons who receive, or are eligible to receive, awards
under the Plan (whether or not such persons are similarly situated). The
Committee's decisions shall be final and binding on all Participants.
-3-
<PAGE>
2.4 Eligibility and Limits. Participants in the Plan shall be selected
by the Committee from among those employees of the Company who, in the opinion
of the Committee, are in a position to contribute materially to the Company's
continued growth and development and to its long-term financial success. In the
case of Incentive Stock Options, the aggregate Fair Market Value (determined as
at the date an Incentive Stock Option is granted) of Stock with respect to which
Stock Options intended to meet the requirements of Code Section 422 become
exercisable for the first time by an individual during any calendar year under
all plans of the Company and its Parents and Subsidiaries shall not exceed
$100,000; provided further, that if the limitation is exceeded, the Incentive
Stock Option(s) which cause the limitation to be exceeded shall be treated as
Non-Qualified Stock Option(s). No participant shall receive Awards which in
total shall be for more than 500,000 shares of Stock.
SECTION 3 TERMS OF AWARDS
3.1 Terms and Conditions of All Awards.
(a) The number of shares of Stock as to which an Award shall
be granted shall be determined by the Committee in its sole discretion, subject
to the provisions of Sections 2.2 and 2.4 as to the total number of shares
available for grants under the Plan.
(b) Each Award shall be evidenced by a Stock Agreement in such
form as the Committee may determine is appropriate, subject to the provisions of
the Plan.
(c) The date an Award is granted shall be the date on which
the Committee has approved the terms and conditions of the Stock Agreement and
has determined the recipient of the Award and the number of shares covered by
the Award and has taken all such other action necessary to complete the grant of
the Award.
(d) The Committee may provide in any Stock Agreement a vesting
schedule. The vesting schedule shall specify when such Awards shall become
Vested and thus exercisable. Notwithstanding any vesting schedule which may be
specified in a Stock Agreement, in the event the Participant terminates within 2
years following a Change of Control the Awards granted under the Plan shall
become 100% Vested and exercisable except to the extent that the exercisability
of any such Award would result in an "excess parachute payment" within the
meaning of Section 280G of the Code.
(e) Awards shall not be transferable or assignable except by
will or by the laws of descent and distribution and shall be exercisable, during
the Participant's lifetime, only by the Participant, or in the event of the
Disability of the Participant, by the legal representative of the Participant.
3.2 Terms and Conditions of Options. At the time any Option is granted,
the Committee shall determine whether the Option is to be an Incentive Stock
Option or a Non- Qualified Stock Option, and the Option shall be clearly
identified as to its status as an Incentive Stock Option or a Non-Qualified
Stock Option. At the time any Incentive Stock Option is
-4-
<PAGE>
exercised, the Company shall be entitled to place a legend on the certificates
representing the shares of Stock purchased pursuant to the Option to clearly
identify them as shares of Stock purchased upon exercise of an Incentive Stock
Option. An Incentive Stock Option may only be granted within ten (10) years from
the earlier of the date the Plan, as amended and restated, is adopted or
approved by the Company's stockholders.
(a) Option Price. Subject to adjustment in accordance with
Section 5.2 and the other provisions of this Section 3.2, the exercise price
(the "Exercise Price") per share of the Stock purchasable under any Option shall
be as set forth in the applicable Stock Agreement. With respect to each grant of
an Incentive Stock Option to a Participant who is not an Over 10% Owner, the
Exercise Price per share shall not be less than the Fair Market Value on the
date the Option is granted. With respect to each grant for an Incentive Stock
Option to a Participant who is an Over 10% Owner, the Exercise Price shall not
be less than 110% of the Fair Market Value on the date the Option is granted.
(b) Option Term. Any Incentive Stock Option granted to a
Participant who is not an Over 10% Owner shall not be exercisable after the
expiration of ten (10) years after the date the Option is granted. Any Incentive
Stock Option granted to an Over 10% Owner shall not be exercisable after the
expiration of five (5) years after the date the Option is granted. In either
case, the Committee may specify a shorter term and state such term in the Stock
Agreement.
(c) Payment. Payment for all shares of Stock purchased
pursuant to exercise of an Option shall be made in any form or manner authorized
by the Committee in the Stock Agreement or by amendment thereto, including, but
not limited to, cash or, if the Stock Agreement provides, (i) by delivery to the
Company of a number of shares of Stock which have been owned by the holder for
at least six (6) months prior to the date of exercise having an aggregate Fair
Market Value on the date of exercise equal to the Exercise Price or (ii) by
tendering a combination of cash and Stock. Payment shall be made at the time
that the Option or any part thereof is exercised, and no shares shall be issued
or delivered upon exercise of an option until full payment has been made by the
Participant. The holder of an Option, as such, shall have none of the rights of
a stockholder.
(d) Conditions to the Exercise of an Option. Each Option
granted under the Plan shall be exercisable by whom, at such time or times, or
upon the occurrence of such event or events, and in such amounts, as the
Committee shall specify in the Stock Agreement; provided, however, that
subsequent to the grant of an Option, the Committee, at any time before complete
termination of such Option, may accelerate the time or times at which such
Option may be exercised in whole or in part, including, without limitation, upon
a Change in Control and may permit the Participant or any other designated
person to exercise the Option, or any portion thereof, for all or part of the
remaining Option term notwithstanding any provision of the Stock Agreement to
the contrary.
(e) Termination of Incentive Stock Option. With respect to an
Incentive Stock Option, in the event of Termination of Employment of a
Participant, the Option or portion thereof held by the Participant which is
unexercised shall expire, terminate, and become unexercisable no later than the
expiration of three (3) months after the date of Termination of Employment;
-5-
<PAGE>
provided, however, that in the case of a holder whose Termination of Employment
is due to death or Disability, one (1) year shall be substituted for such three
(3) month period. For purposes of this Subsection (e), Termination of Employment
of the Participant shall not be deemed to have occurred if the Participant is
employed by another corporation (or a parent or subsidiary corporation of such
other corporation) which has assumed the Incentive Stock Option of the
Participant in a transaction to which Code Section 424(a) is applicable.
(f) Special Provisions for Certain Substitute Options.
Notwithstanding anything to the contrary in this Section 3.2, any Option issued
in substitution for an option previously issued by another entity, which
substitution occurs in connection with a transaction to which Code Section
424(a) is applicable, may provide for an exercise price computed in accordance
with such Code Section and the regulations thereunder and may contain such other
terms and conditions as the Committee may prescribe to cause such substitute
Option to contain as nearly as possible the same terms and conditions (including
the applicable vesting and termination provisions) as those contained in the
previously issued option being replaced thereby.
3.3 Terms and Conditions of Stock Appreciation Rights. A Stock
Appreciation Right may be granted in connection with all or any portion of a
previously or contemporaneously granted Award or not in connection with an
Award. A Stock Appreciation Right shall entitle the Participant to receive the
excess of (1) the Fair Market Value of a specified or determinable number of
shares of the Stock at the time of payment or exercise over (2) a specified
price which, in the case of a Stock Appreciation Right granted in connection
with an Option, shall be not less than the Exercise Price for that number of
shares. A Stock Appreciation Right granted in connection with an Award may only
be exercised to the extent that the related Award has not been exercised, paid
or otherwise settled. The exercise of a Stock Appreciation Right granted in
connection with an Award shall result in a pro rata surrender or cancellation of
any related Award to the extent the Stock Appreciation Right has been exercised.
(a) Payment. Upon payment or exercise of a Stock Appreciation
Right, the Company shall pay to the Participant the appreciation in cash or
shares of Stock (valued at the aggregate Fair Market Value on the date of
payment or exercise) as provided in the Stock Agreement or, in the absence of
such provision, as the Committee may determine.
(b) Conditions to Exercise. Each Stock Appreciation Right
granted under the Plan shall be exercisable or payable at such time or times, or
upon the occurrence of such event or events, and in such amounts, as the
Committee shall specify in the Stock Agreement; provided, however, that
subsequent to the grant of a Stock Appreciation Right, the Committee, at any
time before complete termination of such Stock Appreciation Right, may
accelerate the time or times at which such Stock Appreciation Right may be
exercised or paid in whole or in part.
3.4 Terms and Conditions of Stock Awards. The numbers of Stock subject
to a Stock Award and restrictions or conditions on such shares, if any, shall be
as the Committee determines, and the certificate for such shares shall bear
evidence of any restrictions or conditions. Subsequent to the date of the grant
of the Stock Award, the Committee shall have the power to permit, in its
discretion, an acceleration of the expiration of an applicable restriction
period with respect to any part or all of the shares awarded to a Participant.
The Committee may require a
-6-
<PAGE>
cash payment from the Participant in an amount no greater than the aggregate
Fair Market Value of the shares of Stock awarded determined at the date of grant
in exchange for the grant of a Stock Award or may grant a Stock Award without
the requirement of a cash payment.
3.5 Terms and Conditions of Dividend Equivalent Rights. A Dividend
Equivalent Right shall entitle the Participant to receive payments from the
Company in an amount determined by reference to any cash dividends paid on a
specified number of shares of Stock to Company stockholders of record during the
period such rights are effective. The Committee may impose such restrictions and
conditions on any Dividend Equivalent Right as the Committee in its discretion
shall determine, including the date any such right shall terminate and may
reserve the right to terminate, amend or suspend any such right at any time.
(a) Payment. Payment in respect of a Dividend Equivalent Right
may be made by the Company in cash or shares of Stock (valued at Fair Market
Value on the date of payment) as provided in the Stock Agreement or, in the
absence of such provision, as the Committee may determine.
(b) Conditions to Payment. Each Dividend Equivalent Right
granted under the Plan shall be payable at such time or times, or upon the
occurrence of such event or events, and in such amounts, as the Committee shall
specify in the Dividend Equivalent Right; provided, however, that subsequent to
the grant of a Dividend Equivalent Right, the Committee, at any time before
complete termination of such Dividend Equivalent Right, may accelerate the time
or times at which such Dividend Equivalent Right may be paid in whole or in
part.
3.6 Terms and Conditions of Performance Unit Awards. A Performance Unit
Award shall entitle the Participant to receive, at a specified future date,
payment of an amount equal to all or a portion of the value of a specified
number of units (stated in terms of a designated dollar amount per unit) granted
by the Committee. At the time of the grant, the Committee must determine the
base value of each unit, the number of units subject to a Performance Unit
Award, the performance factors applicable to the determination of the ultimate
payment value of the Performance Unit Award and the period over which Company
performance shall be measured. The Committee may provide for an alternate base
value for each unit under certain specified conditions.
(a) Payment. Payment in respect of Performance Unit Awards may
be made by the Company in cash or shares of Stock (valued at Fair Market Value
on the date of payment) as provided in the Stock Agreement or, in the absence of
such provision, as the Committee may determine.
(b) Conditions to Payment. Each Performance Unit Award granted
under the Plan shall be payable at such time or times, or upon the occurrence of
such event or events, and in such amounts, as the Committee shall specify in the
Performance Unit Award; provided, however, that subsequent to the grant of a
Performance Unit Award, the Committee, at any time before complete termination
of such Performance Unit Award, may accelerate the time or times at which such
Performance Unit Award may be paid in whole or in part.
-7-
<PAGE>
3.7 Terms and Conditions of Phantom Shares. Phantom shares shall
entitle the Participant to receive, at a specified future date, payment of an
amount equal to all or a portion of the Fair Market Value of a specified number
of shares of Stock at the end of a specified period. At the time of the grant,
the Committee shall determine the factors which will govern the portion of the
rights so payable, including, at the discretion of the Committee, any
performance criteria that must be satisfied as a condition to payment.
(a) Payment. Payment in respect of Phantom Shares may be made
by the Company in cash or shares of Stock (valued at Fair Market Value on the
date of payment) as provided in the Stock Agreement or, in the absence of such
provision, as the Committee may determine.
(b) Conditions to Payment. Each Phantom Share granted under
the Plan shall be payable at such time or times, or upon the occurrence of such
event or events, and in such amounts, as the Committee shall specify in the
Phantom Share; provided, however, that subsequent to the grant of a Phantom
Share, the Committee, at any time before complete termination of such Phantom
Share, may accelerate the time or times at which such Phantom Share may be paid
in whole or in part.
3.8 Treatment of Awards Upon Termination of Employment. Except as
otherwise provided by Plan Section 3.2(e), any award under this Plan to a
Participant who suffers a Termination of Employment may be canceled,
accelerated, paid or continued, as provided in the Stock Agreement or, in the
absence of such provision, as the Committee may determine. The portion of any
award exercisable in the event of continuation or the amount of any payment due
under a continued award may be adjusted by the Committee to reflect the
Participant's period of service from the date of grant through the date of the
Participant's Termination of Employment or such other factors as the Committee
determines are relevant to its decision to continue the award.
SECTION 4 RESTRICTIONS ON STOCK
4.1 Escrow of Shares. Any certificates representing the shares of Stock
issued under the Plan shall be issued in the Participant's name, but, if the
Stock Agreement so provides, the shares of Stock shall be held by a custodian
designated by the Committee (the "Custodian"). Each Stock Agreement providing
for transfer of shares of Stock to the Custodian shall appoint the Custodian as
the attorney-in-fact for the Participant for the term specified in the Stock
Agreement, with full power and authority in the Participant's name, place and
stead to transfer, assign and convey to the Company any shares of Stock held by
the Custodian for such Participant, if the Participant forfeits the shares under
the terms of the Stock Agreement. During the period that the Custodian holds the
shares subject to this Section, the Participant shall be entitled to all rights,
except as provided in the Stock Agreement, applicable to shares of Stock not so
held. Any dividends declared on shares of Stock held by the Custodian shall, as
the Committee may provide in the Stock Agreement, be paid directly to the
Participant or, in the alternative, be retained by the Custodian until the
expiration of the term specified in the Stock Agreement and shall then be
delivered, together with any proceeds, with the shares of Stock to
-8-
<PAGE>
the Participant or the Company, as applicable.
4.2 Forfeiture of Shares. Notwithstanding any vesting schedule set
forth in any Stock Agreement, in the event that the Participant violates a non
competition agreement as set forth in the Stock Agreement, all Awards and shares
of Stock issued to the holder pursuant to the Plan shall be forfeited; provided,
however, that the Company shall return to the holder the lesser of any
consideration paid by the Participant in exchange for Stock issued to the
Participant pursuant to the Plan or the then Fair Market Value of the Stock
forfeited hereunder.
4.3 Restrictions on Transfer. The Participant shall not have the right
to make or permit to exist any Disposition of the shares of Stock issued
pursuant to the Plan except as provided in the Plan or the Stock Agreement. Any
Disposition of the shares of Stock issued under the Plan by the Participant not
made in accordance with the Plan or the Stock Agreement shall be void. The
Company shall not recognize, or have the duty to recognize, any Disposition not
made in accordance with the Plan and the Stock Agreement, and the shares so
transferred shall continue to be bound by the Plan and the Stock Agreement.
SECTION 5 GENERAL PROVISIONS
5.1 Withholding. The Company shall deduct from all cash distributions
under the Plan any taxes required to be withheld by federal, state or local
government. Whenever the Company proposes or is required to issue or transfer
shares of Stock under the Plan or upon the vesting of any Stock Award, the
Company shall have the right to require the recipient to remit to the Company an
amount sufficient to satisfy any federal, state and local withholding tax
requirements prior to the delivery of any certificate or certificates for such
shares or the vesting of such Stock Award. A Participant may pay the withholding
tax in cash, or, if the Stock Agreement provides, a Participant may also elect
to have the number of shares of Stock he is to receive reduced by, or with
respect to a Stock Award, tender back to the Company, the smallest number of
whole shares of Stock which, when multiplied by the Fair Market Value of the
shares determined as of the Tax Date (defined below), is sufficient to satisfy
federal, state and local, if any, withholding taxes arising from exercise or
payment of an Award (a "Withholding Election"). A Participant may make a
Withholding Election only if both of the following conditions are met:
(a) The Withholding Election must be made on or prior to the
date on which the amount of tax required to be withheld is determined (the "Tax
Date") by executing and delivering to the Company a properly completed notice of
Withholding Election as prescribed by the Committee; and
(b) Any Withholding Election made will be irrevocable;
however, the Committee may in its sole discretion approve and give no effect to
the Withholding Election.
5.2 Changes in Capitalization; Merger; Liquidation.
(a) The number of shares of Stock reserved for the grant
of Options, Dividend Equivalent Rights, Performance Unit Awards, Phantom Shares,
Stock Appreciation Rights and
-9-
<PAGE>
Stock Awards; the number of shares of Stock reserved for issuance upon the
exercise or payment, as applicable, of each outstanding Option, Dividend
Equivalent Right, Performance Unit Award, Phantom Share and Stock Appreciation
Right and upon vesting or grant, as applicable, of each Stock Award; the
Exercise Price of each outstanding Option and the specified number of shares of
Stock to which each outstanding Dividend Equivalent Right, Phantom Share and
Stock Appreciation Right pertains shall be proportionately adjusted for any
increase or decrease in the number of issued shares of Stock resulting from a
subdivision or combination of shares or the payment of a stock dividend in
shares of Stock to holders of outstanding shares of Stock or any other increase
or decrease in the number of shares of Stock outstanding effected without
receipt of consideration by the Company.
(b) In the event of a merger, consolidation or other
reorganization of the Company or tender offer for shares of Stock, the Committee
may make such adjustments with respect to awards and take such other action as
it deems necessary or appropriate to reflect or in anticipation of such merger,
consolidation, reorganization or tender offer, including, without limitation,
the substitution of new awards, the termination or adjustment of outstanding
awards, the acceleration of awards or the removal of restrictions on outstanding
awards. Any adjustment pursuant to this Section 5.2 may provide, in the
Committee's discretion, for the elimination without payment therefor of any
fractional shares that might otherwise become subject to any Award.
(c) The existence of the Plan and the Awards granted pursuant
to the Plan shall not affect in any way the right or power of the Company to
make or authorize any adjustment, reclassification, reorganization or other
change in its capital or business structure, any merger or consolidation of the
Company, any issue of debt or equity securities having preferences or priorities
as to the Stock or the rights thereof, the dissolution or liquidation of the
Company, any sale or transfer of all or any part of its business or assets, or
any other corporate act or proceeding.
5.3 Compliance with Code. All Incentive Stock Options to be granted
hereunder are intended to comply with Code Section 422, and all provisions of
the Plan and all Incentive Stock Options granted hereunder shall be construed in
such manner as to effectuate that intent.
5.4 Right to Terminate Employment. Nothing in the Plan or in any Award
shall confer upon any Participant the right to continue as an employee or
officer of the Company or any of its affiliates or affect the right of the
Company or any of its affiliates to terminate the Participant's employment at
any time.
5.5 Restrictions on Delivery and Sale of Shares; Legends. Each Award is
subject to the condition that if at any time the Committee, in its discretion,
shall determine that the listing, registration or qualification of the shares
covered by such Award upon any securities exchange or under any state or federal
law is necessary or desirable as a condition of or in connection with the
granting of such Award or the purchase or delivery of shares thereunder, the
delivery of any or all shares pursuant to such Award may be withheld unless and
until such listing, registration or qualification shall have been effected. If a
registration statement is not in effect under the Securities Act of 1933 or any
applicable state securities laws with respect to the shares of Stock
-10-
<PAGE>
purchasable or otherwise deliverable under Awards then outstanding, the
Committee may require, as a condition of exercise of any Option or as a
condition to any other delivery of Stock pursuant to an Award, that the
Participant or other recipient of an Award represent, in writing, that the
shares received pursuant to the Award are being acquired for investment and not
with a view to distribution and agree that shares will not be disposed of except
pursuant to an effective registration statement, unless the Company shall have
received an opinion of counsel that such disposition is exempt from such
requirement under the Securities Act of 1933 and any applicable state securities
laws. The Company may include on certificates representing shares delivered
pursuant to an Award such legends referring to the foregoing representations or
restrictions or any other applicable restrictions on resale as the Company, in
its discretion, shall deem appropriate.
5.6 Non-alienation of Benefits. Other than as specifically provided
with regard to the death of a Participant, no benefit under the Plan shall be
subject in any manner to anticipation, alienation, sale, transfer, assignment,
pledge, encumbrance or charge; and any attempt to do so shall be void. No such
benefit shall, prior to receipt by the Participant, be in any manner liable for
or subject to the debts, contracts, liabilities, engagements or torts of the
Participant.
5.7 Termination and Amendment of the Plan. The Board of Directors at
any time may amend or terminate the Plan without stockholder approval; provided,
however, that the Board of Directors may condition any amendment on the approval
of stockholders of the Company if such approval is necessary or advisable with
respect to tax, securities or other applicable laws. No such termination or
amendment without the consent of the holder of an Award shall adversely affect
the rights of the Participant under such Award.
5.8 Stockholder Approval. The Plan shall be submitted to the
stockholders of the Company for their approval within twelve (12) months before
or after the adoption of the Plan by the Board of Directors of the Company. If
such approval is not obtained, any Award granted hereunder shall be void.
5.9 Choice of Law. The laws of the State of Florida shall govern
the Plan, to the extent not preempted by federal law.
5.10 Effective Date of Plan. The Plan, as amended and restated,
shall become effective upon the date the Plan is approved by the stockholders of
the Company.
HVIDE MARINE INCORPORATED
By:
Title:
-11-
<PAGE>
Attest:
Secretary
[CORPORATE SEAL]
HVIDE MARINE INCORPORATED
STOCK OPTION PLAN
FOR DIRECTORS
<PAGE>
HVIDE MARINE INCORPORATED
STOCK OPTION PLAN FOR DIRECTORS
TABLE OF CONTENTS
ARTICLE PAGE
I. ESTABLISHMENT, PURPOSE AND EFFECTIVE DATE OF PLAN................. 1
1.1 Establishment............................................ 1
1.2 Purpose.................................................. 1
1.3 Effective Date........................................... 1
II. DEFINITIONS....................................................... 1
2.1 Definitions.....................................................1
(a) "Beneficiary"....................................... 1
(b) "Board"............................................. 1
(c) "Change of Control"................................. 2
(d) "Code".............................................. 2
(e) "Committee"......................................... 2
(f) "Company"........................................... 2
(g) "Disability"........................................ 2
(h) "Exercise Price".................................... 2
(i) "Fair Market Value"................................. 2
(j) "Initial Public Offering"........................... 2
(k) "Non-Qualified Stock Option"........................ 3
(l) "Option"............................................ 3
(m) "Participant"....................................... 3
(n) "Retirement"........................................ 3
(o) "Service"........................................... 3
(p) "Stock"............................................. 3
(q) "Stock Option Agreement"............................ 3
(r) "Vested"............................................ 3
(s) "Service"........................................... 3
(t) "Stock"............................................. 3
(u) "Stock Option Agreement"............................ 3
(v) "Vested"............................................ 3
<PAGE>
TABLE OF CONTENTS (CONTINUED)
ARTICLE PAGE
III. ELIGIBILITY AND PARTICIPATION...................................... 3
IV. ADMINISTRATION..................................................... 4
V. STOCK SUBJECT TO PLAN.............................................. 4
5.1 Number.................................................... 4
5.2 Unused Stock.............................................. 4
5.3 Adjustment in Capitalization.............................. 4
VI. DURATION OF PLAN................................................... 5
VII. TERMS OF OPTIONS................................................... 5
7.1 Grant of Options.......................................... 5
7.2 Option Agreement.......................................... 5
7.3 Exercise Price............................................ 5
7.4 Duration of Options....................................... 5
7.5 Vesting of Options........................................ 6
7.6 Nontransferability of Options............................. 6
7.7 Restriction on Stock Transferability...................... 6
7.8 Exercise of Options....................................... 6
7.9 Purchase for Investment................................... 6
VIII. CESSATION AS DIRECTOR.............................................. 7
IX. AMENDMENT, MODIFICATION AND TERMINATION OF PLAN.................... 7
X. TAX WITHHOLDING.................................................... 8
XI. UNFUNDED PLAN...................................................... 8
<PAGE>
TABLE OF CONTENTS (CONTINUED)
ARTICLE PAGE
XII. NO RIGHT TO REMAIN A DIRECTOR.......................................8
XIII. REQUIREMENT OF LAW 8
13.1 Requirement of Law ............................................8
13.2 Governing Law .................................................9
<PAGE>
HVIDE MARINE INCORPORATED
STOCK OPTION PLAN FOR DIRECTORS
ARTICLE I
ESTABLISHMENT, PURPOSE AND EFFECTIVE DATE OF PLAN
1.1 Establishment.
Hvide Marine Incorporated, a Florida corporation, hereby establishes a
stock option plan for members of its Board of Directors, which shall be
known as the Hvide Marine Incorporated Stock Option Plan for Directors
(the "Plan").
1.2 Purpose.
The purpose of the Plan is to aid the Company in competing with other
companies for the services of new Directors, to induce Directors to
remain as Directors, to focus Directors on the long-term Company
objectives, to reward and recognize Directors for their contributions
to the success of the Company and to motivate Directors to acquire an
interest in the Company.
1.3 Effective Date.
The "Effective Date" of the Plan shall be June 28, 1996 subject to
approval by the vote of the holders of a majority of the Stock within
12 months before or after the adoption of the Plan by the Board.
ARTICLE II - DEFINITIONS
2.1 Definitions.
Whenever used herein, the masculine pronoun shall be deemed to include the
feminine, the singular to include the plural, unless the context clearly
indicates otherwise, and the following capitalized words and phrases are used
herein with the meaning thereafter ascribed:
a) "Annual Options" means options granted on an ongoing annual basis.
b) "Beneficiary" means the person or persons designated by a Participant
to exercise an Option in the event of the Participant's death while
employed by, or as a Director of, the Company, or in the absence of
such designation, the legal representative of the Participant's estate.
-1-
<PAGE>
c) "Board" or "Directors" mean the Board of Directors of the Company.
d) A "Change of Control" shall be deemed to have occurred if (i) a tender
offer shall be made and consummated of the ownership of 30% or more of the
outstanding voting securities of the Company, (ii) the Company shall be
merged or consolidated with another corporation and as a result of such
merger or consolidation less than 70% of the outstanding voting securities
of the surviving or resulting corporation shall be owned in the aggregate
by the former shareholders of the Company, other than affiliates (within
the meaning of the Securities Exchange Act of 1934) of any party to such
merger or consolidation, (iii) the Company shall sell substantially all of
its assets to another corporation which corporation is not wholly owned by
the company, or (iv) a person, within the meaning of Section 3(a)(9) or of
Section 13(d)(3) (as in effect on the date hereof) of the Securities
Exchange Act of 1934, shall acquire 30% or more of the outstanding voting
securities of the Company (whether directly, indirectly, beneficially or of
record). For purposes hereof, ownership of voting securities shall take
into account and shall include ownership as determined by applying the
provisions of Rule 13d-3(d)(1)(i) (as in effect on the date hereof)
pursuant to the Securities and Exchange Act of 1934.
e) "Code" means the Internal Revenue Code of 1986, as amended.
f) "Committee" means the Compensation Committee of the Board.
g) "Company" means Hvide Marine Incorporated, a Florida corporation.
h) "Disability" means the inability of an individual to fulfill his
responsibilities as a Director as a result of mental or physical
incapacity.
i) "Exercise Price" means, with respect to any Option, a value as
specified in Section 7.3, determined as of the date of grant of such
Option.
j) "Fair Market Value" means, for any particular date, (i) for any period
during which the Stock shall not be listed for trading on a national
securities exchange, but when prices for the Stock shall be reported
by the National Market System of the National Association of
Securities Dealers Automated Quotation System ("NASDAQ"), the last
transaction price per share as quoted by the National Market System of
NASDAQ, (ii) for any period during which the Stock shall not be listed
for trading on a national securities exchange or its price reported by
the National Market System of NASDAQ, but when prices for the Stock
shall be reported by NASDAQ, the closing bid price as reported by
NASDAQ, (iii) for any period during which the Stock shall be listed
for trading on a national securities exchange, the closing price per
share of Stock on such exchange as of the close of such trading day,
or (iv) the market price per share of Stock as determined by a
qualified valuation expert selected by the Board in the event neither
(i), (ii), or (iii) above shall be applicable. If the Fair Market
Value is to be determined as of a day when the securities markets are
not open, the Fair Market Value on that day shall be the Fair Market
Value on the next succeeding day when the markets are open.
-2-
<PAGE>
k) "Initial Options" means Options granted in the initial year that an
individual becomes a Director.
l) "Initial Public Offering" means the first instance in which Company
Stock is offered for sale to the public following successful
registration of the Stock with the Securities and Exchange Commission.
m) "IPO Options" means Options granted in conjunction with the Initial
Public Offering of Company Stock.
n) "Non-Qualified Stock Option" means a Stock Option, other than an Option
qualifying as an Incentive Stock Option, as defined in Code Section
422.
o) "Option" means the contractual right granted to a Participant to
purchase a share of Stock under the Plan at a stated price for a
specified period of time.
p) "Option Date" means (i) with regard to IPO Options, the date of the
date of the Initial Public Offering or; (ii) with regard to all other
Options granted under the Plan, the first business day after the annual
meeting of stockholders of the Company.
q) "Participant" means a Director who has been granted Options under the
Plan.
r) "Retirement" means the cessation of a Participant's Service as a
Director after attaining age 62.
s) "Service" means the period of time that an individual serves as a
member of the Board and includes any service prior to the adoption of
the Plan as well as service as a consultant to the Board prior to
election to the Board.
t) "Stock" means the Company's Class A Common Stock.
u) "Stock Option Agreement" means an agreement between the Participant
and the Company evidencing the grant and terms of an Option.
v) "Vested" means that an Option is nonforfeitable and exercisable with
regard to a designated number of shares of Stock as specified in
Section 7.5.
ARTICLE III - ELIGIBILITY AND PARTICIPATION
All members of the Board, who are not otherwise officers or employees
of the Company, shall be eligible to participate in the Plan.
-3-
<PAGE>
ARTICLE IV - ADMINISTRATION
The Committee shall be responsible for the administration of the Plan.
The Committee, by majority action thereof, is authorized to interpret
the Plan, to prescribe, amend, and rescind rules and regulations
relating to the Plan, to provide for conditions and assurances deemed
necessary or advisable to protect the interests of the Company, and to
make all other determinations necessary or advisable for the
administration of the Plan, but only to the extent not contrary to the
express provisions of the Plan. Determinations, interpretations, or
other actions made or taken by the Committee pursuant to the provisions
of the Plan shall be uniformly applied and shall be final, binding and
conclusive for all purposes and upon all persons.
ARTICLE V - STOCK SUBJECT TO PLAN
5.1 Number.
Subject to adjustment as provided by Section 5.3, the total number of
shares of Stock reserved for Options and subject to issuance under the
Plan may not exceed 70,000 shares of Stock. The shares to be delivered
under the Plan may consist, in whole or in part, of authorized but
unissued Stock or treasury Stock, not reserved for any other purpose.
5.2 Unused Stock.
In the event any shares of Stock are subject to an Option which, for
any reason, expires or is terminated unexercised as to such shares,
such shares again shall become available for issuance under the Plan.
5.3 Adjustment in Capitalization.
In the event of any change in the Stock of the Company by reason of any
stock dividend, recapitalization, reorganization, merger,
consolidation, split-up, combination, or change of shares, or rights
offering to purchase Stock at a price substantially below fair market
value, or of any similar change affecting the Stock, the number and
Exercise Price of any Options may be proportionately adjusted, as
deemed equitable and appropriate by the Committee, and the number of
shares of Stock subject to issuance under the Plan may be
proportionately adjusted by the Board upon the recommendation of the
Committee, as the Board deems equitable and appropriate.
-4-
<PAGE>
ARTICLE VI - DURATION OF PLAN
The Plan shall remain in effect, subject to the Board's right to
terminate the Plan pursuant to Article IX, until all Stock subject to
it has been purchased or acquired pursuant to the provisions hereof.
Notwithstanding the foregoing, no Option may be granted under the Plan
on or after the tenth anniversary of the Plan's Effective Date.
ARTICLE VII - TERMS OF OPTIONS
7.1 Grant of Options.
Each person who is an eligible participant in the Plan as specified in
Article III shall receive the following Option grants.
a) Those eligible Directors as of the Initial Public Offering will
receive 5,000 IPO Options on the Option Date.
b) Those individuals who become eligible Directors after the Initial
Public Offering will receive 5,000 Initial Options on the first
Option Date following their election to the Board.
c) All eligible Directors will receive 1,500 Annual Options each year
on the next Option Date following the grant of IPO Options or
Initial Options.
7.2 Stock Option Agreement.
Each Option shall be evidenced by a Stock Option Agreement that shall
specify the type of Options granted, the Exercise Price, the duration
of the Options, the number of shares of Stock to which the Option
pertains, the events by which the Options become Vested, and such other
provisions as the Committee shall determine.
7.3 Exercise Price.
All Options granted under the Plan will be granted at a price equal to
the Fair Market Value as of the Option Date applicable to that Option.
7.4 Duration of Options.
Each Option shall expire at such time as the Committee shall determine
at the time it is granted, provided, however, that no Option shall be
exercisable on or after ten years following the date of grant.
-5-
<PAGE>
7.5 Vesting of Options.
a) All Options granted under the Plan will become 100% Vested and
exerciseable as of the first anniversary of the date that the
Options are granted.
b) Notwithstanding the provisions of Subsection (a) above, Options
granted under the Plan will become 100% Vested and exerciseable in
the event of the Participant's death, Disability, completion of
ten (10) years Service, Retirement or Change of Control, except to
the extent that the exerciseability of any such Option would
result in an "excess parachute payment" within the meaning of
Section 280G of the Code.
7.6 Nontransferability of Options.
No Option granted under the Plan, may be sold, transferred, pledged,
assigned, or otherwise alienated or hypothecated, otherwise than by
will or by the laws of descent and distribution. During the lifetime of
the Participant, Options may be exercised only by the Participant.
7.7 Restriction on Stock Transferability.
The Committee may impose such restrictions on any shares of Stock
acquired pursuant to the exercise of an Option under the Plan as it may
deem advisable, including, without limitation, restrictions under
applicable federal securities law, under the requirements of any stock
exchange upon which such shares of Stock are then listed, under any
blue sky or state securities laws applicable to such shares and under
any buy/sell agreements entered into by the existing shareholders.
7.8 Exercise of Options.
A Participant shall exercise a Vested Option by written notice to the
Committee specifying the number of shares of Stock to be purchased. The
Exercise Price of any Vested Option shall be payable to the Company in
full at the time of the exercise of the Option in a manner as is
specified in the Stock Agreement.
7.9 Purchase for Investment.
At the time of any exercise of any Option, the Committee may, if it
shall deem it necessary for any reason connected with any law or
regulation of any governmental authority relating to the regulation of
securities, require as a condition to the issuance of Stock that the
Participant represent in writing to the Company that it is his
intention to acquire the Stock for investment only and not for resale.
In the event such a representation is required and made, no Stock shall
be issued to the Participant unless and until the Company is satisfied
with the validity of such representation. Certificates for Stock as to
which such representation is required and made may, in the discretion
of the Board, be endorsed with a legend noting such representations.
-6-
<PAGE>
ARTICLE VIII - CESSATION AS DIRECTOR
In the event the Participant shall cease to be a Director of the
Company for any reason, except following an event enumerated in Section
7.5(b), any outstanding Vested Options may be exercised for a period of
twelve (12) months following such cessation as a Director (or the
expiration date of the Option, if shorter). The Participant may
exercise any such Options as were exercisable at the date of cessation
as a Director, and no more.
In the event the Participant shall cease to be a Director of the
Company following an event enumerated in Section 7.5(b), except death,
any outstanding Vested Options may be exercised until the expiration
date of the Option. The Participant may exercise only such options as
were exercisable at the date of the cessation as a director, and no
more.
If the Participant dies before his service as a Director ceases, the
Participant's Beneficiary may, within the twelve (12) month period
following death (or the expiration date of the Options, if shorter),
exercise the Options on the Participant's behalf.
ARTICLE IX
AMENDMENT, MODIFICATION AND TERMINATION OF PLAN
The Board may at any time terminate, and from time to time may amend or
modify the Plan, provided, however, that no such action of the Board,
without the approval by vote of the holders of a majority of Stock may:
(a) Increase the total amount of Stock which may be issued under
the Plan, except as provided in Sections 5.1 and 5.3 of the Plan.
(b) Change the class of individuals eligible to receive Options.
(c) Change the provisions of the Plan regarding the Option price
except as permitted by Section 5.3.
(d) Materially increase the cost of the Plan or materially
increase the benefits to Participants.
(e) Extend the period during which Options may be granted.
(f) Extend the maximum period after the date of grant during which
Options may be exercised.
No amendment, modification, or termination of the Plan shall in any
manner adversely affect any Option granted under the Plan without the
consent of the Participant.
-7-
<PAGE>
ARTICLE X - TAX WITHHOLDING
Whenever shares of Stock are to be issued under the Plan, the Company
shall have the power to require the recipient of the Stock to remit to
the Company an amount sufficient to satisfy federal, state, and local
tax withholding requirements. The Company may also withhold from
delivery to the recipient a number of shares, the Fair Market Value of
which is sufficient to satisfy federal, state and local withholding
requirements.
ARTICLE XI - UNFUNDED PLAN
The Plan shall be unfunded. The Company shall not be required to
segregate any assets that may be represented by Options. The Company
shall not be deemed to be a trustee of any amounts to be paid under any
Option. Any liability of the Company to pay any Participant with
respect to an Option shall be based solely upon any contractual
obligations created pursuant to the provisions of the Plan; no such
obligation shall be deemed to be secured by any pledge or encumbrance
on any property of the Company.
ARTICLE XII - NO RIGHT TO REMAIN A DIRECTOR
The grant of an Option shall not create any right in any person to
remain as a Director of the Company.
ARTICLE XIII - REQUIREMENT OF LAW
13.1 Requirement of Law.
The granting of Options and the issuance of shares of Stock shall be
subject to all applicable laws, rules, and regulations, and to such
approvals by any governmental agencies or national securities exchanges
as may be required.
13.2 Governing Law.
The Plan, and all agreements hereunder, shall be construed in
accordance with and governed by the laws of the State of Florida except
to the extent superseded by federal law.
-8-
<PAGE>
HVIDE MARINE INCORPORATED
BY:___________________________
TITLE: ________________________
ATTEST:
- -----------------------------
SECRETARY
[CORPORATE SEAL]
Exhibit 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-8) pertaining to the Stock Option Plan for
Directors, Equity Ownership Plan and the 1996 Employee Stock Purchase Plan of
Hvide Marine Incorporated and to the incorporation by reference therein of our
report dated March 28, 1996, except the first paragraph of Note 14, as to which
the date is May 10, 1996, with respect to the consolidated financial statements
of Hvide Marine Incorporated included in its Registration Statement (Form S-1
No. 33-78166), filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
Miami, Florida
December 10, 1996
Exhibit 23.3
CONSENT OF INDEPENDENT AUDITORS
We hereby consent to the incorporation by reference in this registration
statement of Hvide Marine Incorporated (the "Company") on Form S-8 of our report
dated January 26, 1996 relating to the financial statements of OMI Chemical
Carrier Group included in the Company's Prospectus dated August 8, 1996, which
is incorporated by reference in this registration statement.
DELOITTE & TOUCHE LLP
New York, New York
December 9, 1996
Exhibit 23.4
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We consent to the incorporation by reference in this registration statement on
Form S-8 of our reports dated April 12, 1996 (except for certain disclosures
presented in Footnote 1, as to which the date is August 1, 1996) on our audits
of (i) the statements of assets to be sold and related statements of vessel
operations of Seal Fleet, Inc. and Subsidiaries and (ii) the combined statements
of vessel operations of Indian Seal Partners, Ltd., Baffin Seal Partners, Ltd.,
Baltic Seal Partners, Ltd., Bengal Seal Partners, Ltd., and Ross Seal Partners,
Ltd. appearing in the registration statement on Form S-1 (File No. 33-78166) of
Hvide Marine Incorporated.
PANNELL KERR FORSTER OF TEXAS, P.C.
Houston, Texas
December 10, 1996
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that Hvide Marine Incorporated, a
corporation organized under the laws of the State of Florida (the
"Corporation"), and the undersigned officers and directors of the Corporation,
individually and in their respective capacities indicated below, hereby make,
constitute and appoint Michael Joseph and John F. Kearney its and their true and
lawful attorneys, their separate or joint signatures sufficient to bind, with
power of substitution, to execute, deliver and file in its or their behalf, and
in each person's respective capacity or capacities as shown below, a
registration statement on Form S-8 under the Securities Act of 1933, any and all
documents in support of or supplemental to said registration statement by the
Corporation; and the Corporation and each said person hereby grant to said
attorneys full power and authority to do and perform each and every act and
thing whatsoever as any one of said attorneys may deem necessary or advisable to
carry out the full intent of this Power of Attorney to the same extent and with
the same effect as the Corporation or the undersigned officers and directors of
the Corporation might or could do personally in its or their capacity or
capacities as aforesaid; and the Corporation and each of said persons hereby
ratify, confirm and approve all acts and things that any one of said attorneys
may do or cause to be done by virtue of this Power of Attorney and its signature
or their signatures as the same may be signed by any one of said attorneys to
said registration statement and any and all documents in support of or
supplemental to said registration statement and any and all amendments thereto.
Dated as of December 10, 1996.
Hvide Marine Incorporated
Attest: By:
Gene Douglas J. Erik Hvide
Secretary Chairman, President, and Chief Executive Officer
/s/ J. ERIK HVIDE /S/ JOHN H. BLANKLEY
J. Erik Hvide John H. Blankley
Chairman of the Board of Directors, Executive Vice President -- Chief
President, Chief Executive Officer and Financial Officer, and Director
Director
(Principal Executive Officer)
/S/ DONALD L. CALDERA /S/ JOHN KRUMENACKER
Donald L. Caldera John Krumenacker
Executive Vice President and Director Controller
(Principal Accounting Officer)
/s/ EUGENE F. SWEENEY /S/ ROBERT B. CALHOUN, JR.
Eugene F. Sweeney Robert B. Calhoun, Jr.
Executive Vice President and Director Director
- 1 -
<PAGE>
/S/ GERALD FARMER /S/ JEAN FITZGERALD
Gerald Farmer Jean Fitzgerald
Director Director
/S/ WALTER C. MINK
John Lee Walter C. Mink
Director Director
/S/ ROBERT RICE /S/ RAYMOND B. VICKERS
Robert Rice Raymond B. Vickers
Director Director
CERTIFICATE OF SECRETARY
The undersigned, Gene Douglas, Secretary of Hvide Marine Incorporated,
a Florida corporation (the "Corporation"), hereby certifies that on December 10,
1996, the Board of Directors of the Corporation duly adopted the resolution set
forth below:
RESOLVED, that, the officers of the Corporation be, and each
of them hereby is, authorized and directed, in the name and on behalf
of the Corporation, to cause to be prepared, to execute personally or
by attorney in fact, and to file with the Securities and Exchange
Commission under the Securities Act, a Registration Statement on Form
S-8 (the "Form S-8 Registration Statement"), including any prospectus
included therein, financial statements, exhibits and schedules thereto,
with respect to the up to 500,000 shares of Class A Common Stock
reserved for issuance under the Corporation's 1996 Employee Stock
Purchase Plan, with respect to the up to 1,000,000 shares of Class A
Common Stock reserved for issuance under the Corporation's Equity
Ownership Plan, and with respect to the up to 70,000 shares of Class A
Common Stock reserved for issuance under the Corporation's Stock Option
Plan for Directors, and to file any amendments or supplements to any of
the foregoing relating to such shares and to cause the Form S-8
Registration Statement and any amendments or supplements thereto to
become effective in accordance with the Securities Act and the rules
and regulations of the Commission thereunder;
RESOLVED, that the officers of the Corporation be, and each of
them hereby is, authorized and directed, in the name and on behalf of
the Corporation, to take all such action and execute all such documents
as such officers may deem necessary or advisable with respect to the
Form S-8 Registration Statement;
Such resolution has not been amended, rescinded, or otherwise modified and is in
full force and effect on the date hereof.
IN WITNESS WHEREOF, I have executed this Certificate this 10th day of
December, 1996.
Gene Douglas
Secretary
