As filed with the Securities and Exchange Commission on June 9, 1997
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)
BOARD OF DIRECTORS STOCK COMPENSATION PLAN
KEY EMPLOYEE STOCK COMPENSATION PLAN
(Full title 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
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Title of securities Amount to Proposed maximum Proposed maximum Amount of
to be registered be registered offering price aggregate offering registration fee
per share(1) price(1)
<S> <C> <C> <C> <C>
Class A Common Stock, par value
$.001 per share................... 95,000 $24.50 $2,327,500 $705.30
- ---------------------------------- ------------------ -------------------- --------------------- ---------------------
</TABLE>
(1) Pursuant to Rule 457(c) and (h), the proposed maximum aggregate offering
price per share and the proposed maximum aggregate offering price are
estimated solely for purposes of calculating the registration fee, and are
based upon the average high and low prices of the Class A Common Stock as
reported by the Nasdaq Stock Market on June 9, 1997.
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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) Annual Report on Form 10-K for the year ended December 31,
1996;
(b) Quarterly Report on Form 10-Q for the quarter ended March 31,
1997; and
(c) 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
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 (the "Exchange
Act"), 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 provide 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 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,
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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;
(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:
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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 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
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(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 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:
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(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 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 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 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.
7
<PAGE>
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 Hvide Marine Incorporated Board of Directors Stock
Compensation Plan
10.2 Hvide Marine Incorporated Key Employee Stock Compensation Plan
23.1 Consent of Ernst & Young LLP
23.2 Consent of Dyer Ellis & Joseph (included as part of Exhibit
5.1)
24.1 Power of Attorney
* 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:
(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
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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.
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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 9th day of June, 1997.
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 June 9, 1997
- -----------------------
J. Erik Hvide Executive Officer and Director (principal
executive officer)
* Executive Vice President, Chief Financial June 9, 1997
- -----------------------
John H. Blankley Officer and Director
* Controller (principal accounting officer) June 9, 1997
- -----------------------
John J. Krumenacker
* Executive Vice President and Director June 9, 1997
- -----------------------
Eugene F. Sweeney
* Director June 9, 1997
- -----------------------
Robert B. Calhoun, Jr.
* Director June 9, 1997
- -----------------------
Gerald Farmer
* Director June 9, 1997
- -----------------------
Jean Fitzgerald
</TABLE>
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<TABLE>
<S> <C> <C>
* Director June 9, 1997
- -----------------------
John J. Lee
* Director June 9, 1997
- -----------------------
Walter C. Mink
* Director June 9, 1997
- -----------------------
Robert Rice
* Director June 9, 1997
- -----------------------
Raymond B. Vickers
</TABLE>
*By: /S/ MICHAEL JOSEPH
Michael Joseph
Attorney-in-Fact
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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 Hvide Marine Incorporated Board of Directors
Stock Compensation Plan
10.2 Hvide Marine Incorporated Key Employee Stock
Compensation Plan
23.1 Consent of Ernst & Young LLP
23.2 Consent of Dyer Ellis & Joseph
(included as part of Exhibit 5.1)
24.1 Power of Attorney
Exhibit 5.1
June 10, 1997
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 95,000 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 Board of Directors Stock Compensation Plan and Key Employee Stock
Compensation Plan (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
Exhibit 10.1
HVIDE MARINE INCORPORATED
BOARD OF DIRECTORS STOCK COMPENSATION PLAN
1. PURPOSE
The purpose of the Hvide Marine Incorporated Board of Directors Stock
Compensation Plan (the "Plan") is to provide outside directors of Hvide
Marine Incorporated or any of its affiliates or subsidiaries (the
"Company") the opportunity to acquire an equity interest in the Company.
Operationally, the Plan permits Participants to convert all or a portion of
the Participant's director's fees into stock of the Company. A
Participant's interest under the Plan shall be expressed in shares of the
Company's common stock ("Shares").
2. TERM AND PLAN YEAR
The Plan shall be effective when adopted by the Board of Directors of the
Company (the "Board"), subject to approval of the shareholders of the
Company within twelve months thereafter. The Plan shall remain in effect
until terminated by the Board. The issuance of Shares under the Plan may be
conditioned upon the effectiveness of a registration statement covering the
Shares. The Plan Year shall be the period January 1 through December 31.
3. ELIGIBILITY AND PARTICIPATION
All members of the Board who are not employees of the Company will be
eligible to participate in the Plan. A Board member will become a
Participant by submitting a Stock Election within 30 days after the Plan
becomes effective and thereafter prior to the first day of the Plan Year.
4. CONVERSION OF FEES INTO STOCK
(a) STOCK ELECTIONS: Each eligible Board member may elect to
convert a portion of his or her fees for attendance at Board
and committee meetings ("Director Fees") into Shares. The
Stock Elections (i) must be in writing, and (ii) must
designate the percentage of the fees to be converted into
Shares. The Stock Election may change from Plan Year to Plan
Year, but the Stock Election for a particular Plan Year may
not be changed after the beginning of the Plan Year to which
the election relates. Except in the initial year,
- 1 -
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each Stock Election must be made prior to the first day of the
Plan Year in which Director
Fees will be paid. A Stock Election will continue in effect
for subsequent Plan Years unless the Stock Election is changed
or revoked on or before the first day of the next Plan Year.
(b) CALCULATION OF SHARES: Amounts subject to a Stock Election
will be converted into Shares as of the last day of the month
in which such amount would have been paid in cash. The number
of Shares that a Participant will receive shall equal one
hundred twenty-five percent (125%) of the amount subject to
the Stock Election divided by the Fair Market Value (as
defined in Section 8 hereof) of a Share on the last day of the
month in which such amount would have been paid in cash but
for the Stock Election pursuant to Section 4(a). Such
calculations shall be carried to three decimal places.
5. PAYMENT OF SHARES
The Company shall issue and deliver to the Participant Share certificates for
payment of Shares as soon as practicable following the date on which the number
of Shares is calculated. Fractional Shares shall be paid in cash.
6. SHARES SUBJECT TO THE PLAN
The aggregate number of Shares that may be subject to issuance under the
Plan shall not exceed 30,000, subject to adjustment as provided in Section
9 of this Plan.
7. ADJUSTMENTS AND REORGANIZATION
In the event of any stock dividend, stock split, combination or exchange of
Shares, merger, consolidation, spin-off, recapitalization or other
distribution (other than normal cash dividends) of Company assets to
stockholders, or any other change affecting Shares or the price of Shares,
such proportionate adjustments, if any, as the Committee in its sole
discretion may deem appropriate to reflect such change shall be made with
respect to the aggregate number of Shares that may be issued under the
Plan. Any adjustments described in the preceding sentence shall be carried
to three decimal places.
8. FAIR MARKET VALUE
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<PAGE>
Fair Market Value of a Share for all purposes under the Plan shall mean,
for any particular date, (i) for any period during which the Share shall be
listed for trading on a national securities exchange or the National
Association of Securities Dealers Automated Quotation System ("NASDAQ"),
the closing price per share of Stock on such exchange or the NASDAQ closing
bid price as of the close of such trading day or (ii) for any period during
which the Share shall not be listed for trading on a national securities
exchange or NASDAQ, the market price per Share as determined by a qualified
appraiser selected by the Board. If Fair Market Value is to be determined
on a day when the markets are not open, Fair Market Value on that day shall
be the Fair Market Value on the most recent preceding day when the markets
were open.
9. TERMINATION OR AMENDMENT OF PLAN
(a) IN GENERAL: The Board may, at any time by resolution, terminate, suspend or
amend this Plan. If the Plan is terminated by the Board, no further Stock
Elections may be made under the Plan, but any Director Fees subject to a
Stock Election that have not yet been paid to the Participant at the time
of the termination of the Plan will be paid in accordance with the terms
and conditions of the Plan.
(b) WRITTEN CONSENTS: No amendment may adversely affect the right of any
Participant to have his Director Fees paid in Shares unless such
Participant consents in writing to such amendment.
10. COMPLIANCE WITH LAWS
(a) The obligations of the Company to issue any Shares under this
Plan shall be subject to all applicable laws, rules and
regulations and the obtaining of all such approvals by
governmental agencies as may be deemed necessary or
appropriate by the Board.
(b) Subject to the provisions of Section 9, the Board may take
such changes in the design and administration of this Plan as
may be necessary or appropriate to comply with the rules and
regulations of any government authority.
11. MISCELLANEOUS
(a) UNFUNDED PLAN: Nothing contained in this Plan and no action
taken pursuant to the provisions hereof shall create or be
construed to create a trust of any kind, or a fiduciary
relationship between the Company and Participant, the
Participant's designee or any other person. The Plan shall be
unfunded with respect to the Company's obligation to pay any
amounts due, and a Participant's rights to receive any payment
with respect to
- 3 -
<PAGE>
any Stock Election shall be not greater than the rights of an
unsecured general creditor of the Company.
(b) ADMINISTRATION: The Committee shall administer the Plan,
including the adoption of rules or the preparation of forms to
be used in its operation, and to interpret and apply the
provisions hereof as well as any rules which it may adopt. In
addition, the Committee may appoint other individuals, firms
or organizations to act as agent of the Company carrying out
administrative duties under the Plan. The decisions of the
Committee, including, but not limited to, interpretations and
determinations of amounts due under this Plan, shall be final
and binding on all parties.
(c) GOVERNING LAW: The validity, construction and effect of the
Plan and any actions taken or relating to the Plan, shall be
determined in accordance with the laws of the State of Florida
without regard to its conflict of law rules, and applicable
federal law.
(d) RIGHTS AS A STOCKHOLDER: A Participant shall have no rights as
a stockholder until the Participant actually becomes a holder
of record of Shares distributed with respect thereto.
(e) NOTICES: All notices or other communications made or given
pursuant to this Plan shall be in writing and shall be
sufficiently made or given if hand delivered, or if mailed by
certified mail, addressed to the Participant at the address
contained in the records of the Company or to the Company at
its principal office, as applicable.
IN WITNESS WHEREOF, HVIDE MARINE INCORPORATED SHAREHOLDERS HAVE ADOPTED THE
FOREGOING INSTRUMENT AT THE ANNUAL MEETING THIS 19TH DAY OF MAY, 1997.
- 4 -
Exhibit 10.2
HVIDE MARINE INCORPORATED
KEY EMPLOYEE STOCK COMPENSATION PLAN
1. PURPOSE
The purposes of the Hvide Marine Incorporated Key Employee Stock
Compensation Plan (the "Plan") are (i) to provide key employees of Hvide
Marine Incorporated or any of its affiliates or subsidiaries (the
"Company") the opportunity to acquire an equity interest in the Company
(ii) to attract and retain well-qualified individuals, and (iii) to align
the interests of management and the stockholders of the Company.
Operationally, the Plan permits Participants to defer receipt of a portion
of the Participant's Annual Incentive Plan payment. A Participant's
interest under the Plan shall be expressed in Stock Units equivalent to
shares of the Company's common stock ("Shares").
2. TERM AND PLAN YEAR
The Plan shall be effective when adopted by the Board of Directors of the
Company (the "Board"), subject to approval of the shareholders of the
Company within twelve months thereafter. The Plan shall remain in effect
until terminated by the Board. The issuance of Shares under the Plan may be
conditioned upon the effectiveness of a registration statement covering the
Shares. The Plan Year shall be the period January 1 through December 31.
3. ELIGIBILITY AND PARTICIPATION
Within 15 days after the Plan becomes effective and thereafter, annually by
December 1, the Compensation Committee of the Board (the "Committee") will
determine those key employees who are eligible to become Participants. An
eligible key employee will become a Participant by submitting a Deferral
Election within 30 days after the Plan becomes effective and thereafter
prior to the first day of the Plan Year. A key employee's eligibility to
submit a Deferral Election does not carry over from year to year; each key
employee must have his or her eligibility to submit a Deferral Election
determined annually by the Committee.
4. DEFERRAL OF ANNUAL INCENTIVE
(a) DEFERRAL ELECTIONS: Subject to the limits established by the
Committee, each eligible key employee may elect to defer the payment
of all or part of any Annual Incentive Plan payment which otherwise
would be paid for a Plan Year. The Deferral Elections (i) must be in
writing,
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and (ii) must designate the percentage of the Annual Incentive Plan
payment to be deferred for the Plan Year (the "Deferral Percentage").
The Deferral Percentage may change from Plan Year to Plan Year, but the
deferral percentage for a particular Plan Year may not be changed after
the beginning of the Plan Year to which the election relates. No
Deferral Percentage may be for more than 50% of that year's Annual
Incentive Plan payment. Except in the initial year, each Deferral
Election must be made prior to the first day of the Plan Year for which
the Annual Incentive Plan payment will be paid.
(b) CREDITING DEFERRAL AMOUNTS TO ACCOUNTS: Amounts deferred pursuant
to Section 4(a) shall be credited in Stock Units as of the last
day of the month in which such amount would have been paid in
cash to a bookkeeping reserve account maintained by the Company
("Stock Unit Account"). The Stock Unit Account shall have two
components - a Basic Account and a Premium Account. The number of
Stock Units credited to a Participant's Basic Account shall equal
one hundred percent (100%) of the deferred cash amount divided by
the Fair Market Value (as defined in Section 10 hereof) of a
Share on the last day of the month in which such deferral amount
would have been paid but for the Deferral Election pursuant to
Section 4(a). The number of Stock Units credited to a
Participant's Premium Account shall equal 25% of the deferred
cash amount, divided by the Fair Market Value (as defined in
Section 10 hereof) of a Share on the last day of the month in
which such deferral amount would have been paid but for the
Deferral Election pursuant to Section 4(a). Such calculations
shall be carried to three decimal places.
(c) The value of the Stock Units credited to the Participant's Stock Unit
Account shall constitute the Participant's entire benefit under this
Plan.
5. ADDITIONS TO DEFERRED ACCOUNTS
As of each dividend payment date, with respect to Shares, there shall be
credited to each Participant's Stock Unit Account certain Dividend Units
which will be an additional number of Stock Units equal to (i) the
per-share dividend payable with respect to a Share on such date multiplied
by (ii) the number of Stock Units held in the Stock Unit Account as of the
close of business on the first business day prior to such dividend payment
date and, if the dividend is payable in cash or property other than Shares,
divided by (iii) the Fair Market Value of a Share on such business day. For
purposes of this Section 5, "dividend" shall include all dividends, whether
normal or special, and whether payable in cash, Shares or other property.
The calculation of additional Stock Units shall be carried to three decimal
places.
6. VESTING OF ACCOUNTS
(a) BASIC ACCOUNT: All Stock Units credited to a Participant's Basic
Account (and the Dividend Units attributable thereto) pursuant to this
Plan shall be at all times fully vested and nonforfeitable.
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(b) PREMIUM ACCOUNT: All Stock Units credited to a Participant's
Premium Account pursuant to this Plan (and the Dividend
Units attributable thereto) shall become one hundred percent
(100 %) vested and nonforfeitable on the first day of the
Plan Year in which will occur the third anniversary of the
date the Stock Units are credited to the Participant's
Premium Account, provided that the Participant is then an
employee of the Company. In the event that the Participant
dies, becomes disabled, retires at the normal retirement age
specified in the Company's qualified retirement plan or
terminates employment for any reason within twenty- four
(24) months following a Change of Control, all unvested
Stock Units and Dividend Units will immediately become one
hundred percent (100%) vested and nonforfeitable.
Additionally, the Committee, in its sole discretion, may
accelerate a Participant's vested percent if it determines
that such action would be in the best interest of the
Company.
7. PAYMENT OF ACCOUNTS
(a) TIME OF DISTRIBUTION: Payment of the vested Stock Units to a
Participant shall be made not earlier than the first day nor later than
the last day of the first month of the Plan Year in which will occur
the third anniversary of the date the Stock Units in question were
credited to the Participant's Stock Unit Account. Notwithstanding the
preceding sentence, in the event of the death of the Participant before
the Participant's Stock Unit Account has been fully distributed, an
immediate lump sum distribution of the Stock Unit Account shall be made
to the Participant's Beneficiary or Beneficiaries in the proportions
designated by such Participant.
(b) FORM OF DISTRIBUTION: The total number of vested whole Stock Units in the
Participant's Stock Unit Account shall be paid to the Participant in an
equal number of whole Shares. The Company shall issue and deliver to the
Participant Share certificates for payment of Stock Units as soon as
practicable following the date on which the Stock Units, or any portion
thereof, become payable.
8. SHARES SUBJECT TO THE PLAN
The aggregate number of Shares that may be subject to issuance under the
Plan shall not exceed 65,000, subject to adjustment as provided in Section
9 of this Plan.
9. ADJUSTMENTS AND REORGANIZATION
In the event of any stock dividend, stock split, combination or exchange of
Shares, merger, consolidation, spin-off, recapitalization or other
distribution (other than normal cash dividends) of Company assets to
stockholders, or any other change affecting Shares or the price of Shares,
such proportionate adjustments, if any, as the Committee in its sole
discretion may deem appropriate to reflect such change shall be made with
respect to the aggregate number of Shares that may be
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issued under the Plan, and each Stock Unit or Dividend Unit held in the
Stock Unit Accounts. Any adjustments described in the preceding sentence
shall be carried to three decimal places.
10. FAIR MARKET VALUE
Fair Market Value of a Share for all purposes under the Plan shall mean,
for any particular date, (i) for any period during which the Share shall be
listed for trading on a national securities exchange or the National
Association of Securities Dealers Automated Quotation System ("NASDAQ"),
the closing price per share of Stock on such exchange or the NASDAQ closing
bid price as of the close of such trading day or (ii) for any period during
which the Share shall not be listed for trading on a national securities
exchange or NASDAQ, the market price per Share as determined by a qualified
appraiser selected by the Board. If Fair Market Value is to be determined
on a day when the markets are not open, Fair Market Value on that day shall
be the Fair Market Value on the most recent preceding day when the markets
were open.
11. TERMINATION OR AMENDMENT OF PLAN
(a) IN GENERAL: The Board may, at any time by resolution, terminate,
suspend or amend this Plan. If the Plan is terminated by the Board, no
deferrals may be credited after the effective date of such termination,
but previously credited Stock Units and Dividend Units shall remain
outstanding in accordance with the terms and conditions of the Plan.
(b) WRITTEN CONSENTS: No amendment may adversely affect the right of any
Participant to have Dividend Units credited to a Stock Unit Account or
to receive any Shares pursuant to the payout of such accounts, unless
such Participant consents in writing to such amendment.
12. COMPLIANCE WITH LAWS
(a) The obligations of the Company to issue any Shares under this Plan
shall be subject to all applicable laws, rules and regulations and the
obtaining of all such approvals by governmental agencies as may be
deemed necessary or appropriate by the Board.
(b) Subject to the provisions of Section 11, the Board may take such
changes in the design and administration of this Plan as may be
necessary or appropriate to comply with the rules and regulations of
any government authority.
13. MISCELLANEOUS
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(a) UNFUNDED PLAN: Nothing contained in this Plan and no action
taken pursuant to the provisions hereof shall create or be
construed to create a trust of any kind, or a fiduciary
relationship between the Company and Participant, the
Participant's designee or any other person. The Plan shall
be unfunded with respect to the Company's obligation to pay
any amounts due, and a Participant's rights to receive any
payment with respect to any Stock Unit Account shall be not
greater than the rights of an unsecured general creditor of
the Company.
The Company may establish a Rabbi Trust to accumulate Shares to
fund the obligations of the Company pursuant to this Plan.
Payment from the Rabbi Trust of amounts due under the terms
of this Plan shall satisfy the obligation of the Company to
make such payment. In no event shall any Participant be
entitled to receive payment of an amount from the Company
that the Participant received from the Rabbi trust.
(b) ASSIGNMENT; ENCUMBRANCES: The right to have amounts credited
to a Stock Unit Account and the right to receive payment
with respect to such Stock Unit Account under this Plan are
not assignable or transferable and shall not be subject to
any encumbrances, liens, pledges, or charges of the
Participant or to claims of the Participant's creditors. Any
attempt to assign, transfer, hypothecate or attach any
rights with respect to or derived from any Stock Unit shall
be null and void and of no force and effect whatsoever.
(c) DESIGNATION OF BENEFICIARIES: A Participant may designate in
writing a beneficiary or beneficiaries to receive any
distribution under the Plan which is made after the
Participant's death; provided, however, that if at the time
any such distribution is due, there is no designation of a
beneficiary in force or if any person (other than a trustee
or trustees) as to whom a beneficiary designation was in
force at the time of such Participant's death shall have
died before the payment became due and the Participant has
failed to provide such beneficiary designation for any
person or persons to take in lieu of such deceased person,
the person or persons entitled to receive such distribution
(or part thereof, as the case may be) shall be the
participant's executor or administrator.
(d) CHANGE OF CONTROL: 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
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13d-3(d)(1)(i) (as in effect on the date hereof) pursuant to the
Securities and Exchange Act of 1934.
(e) ADMINISTRATION: The Committee shall administer the Plan,
including the adoption of rules or the preparation of forms
to be used in its operation, and to interpret and apply the
provisions hereof as well as any rules which it may adopt.
In addition, the Committee may appoint other individuals,
firms or organizations to act as agent of the Company
carrying out administrative duties under the Plan. Except as
may be provided in a Rabbi Trust, the decisions of the
Committee, including, but not limited to, interpretations
and determinations of amounts due under this Plan, shall be
final and binding on all parties.
(f) TAX WITHHOLDING. An individual who receives payment from the
Plan shall pay to the Company, or make arrangements
satisfactory to the Committee, regarding the payment of any
federal, state or local taxes of any kind required by law to
be withheld with respect to such payment. The individual
shall make such payment or arrangement no later than the
date as of which he is scheduled to receive such payment.
The obligations of the Company under the Plan shall be
conditioned on such payment or arrangement and the Company,
to the extent permitted by law, shall have the right to
deduct any such taxes from any distribution of any kind
otherwise due to the individual. Unless otherwise determined
by the Committee, any withholding obligation of the Company
on amounts received under the Plan may be settled with
shares of common stock of the Company that are part of the
distribution that gives rise to the withholding requirement.
(g) GOVERNING LAW: The validity, construction and effect of the
Plan and any actions taken or relating to the Plan, shall be
determined in accordance with the laws of the State of
Florida without regard to its conflict of law rules, and
applicable federal law.
(h) RIGHTS AS A STOCKHOLDER: A Participant shall have no rights
as a stockholder with respect to a Stock Unit until the
Participant actually becomes a holder of record of Shares
distributed with respect thereto.
(i) NOTICES: All notices or other communications made or given
pursuant to this Plan shall be in writing and shall be
sufficiently made or given if hand delivered, or if mailed
by certified mail, addressed to the Participant at the
address contained in the records of the Company or to the
Company at its principal office, as applicable.
IN WITNESS WHEREOF, HVIDE MARINE INCORPORATED SHAREHOLDERS HAVE ADOPTED
THE FOREGOING INSTRUMENT AT THE ANNUAL MEETING THIS 19TH DAY OF MAY,
1997.
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Exhibit 23.1
Consent of Independent Certified Public Accountants
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the Key Employee Stock Plan and Board of Directors Stock
Compensation Plan of Hvide Marine Incorporated dated June 9, 1997 of our report
dated February 20, 1997, except for the eighth paragraph of Note 3, as to which
the date is March 25, 1997 with respect to the consolidated financial statements
of Hvide Marine Incorporated included in its Annual Report (Form 10-K) for the
year ended December 31, 1996, filed with the Securities and Exchange Commission.
Miami, Florida
June 9, 1997 ERNST & YOUNG LLP
Exhibit 24.1
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 June 10, 1997.
<TABLE>
<S> <C>
Hvide Marine Incorporated
Attest: /s/ GENE DOUGLAS By: /s/ J. ERIK HVIDE
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, President, Executive Vice President -- Chief
Chief Executive Officer and Director Financial Officer, and Director
(Principal Executive Officer)
/s/ JOHN J. KRUMENACKER /s/ EUGENE F. SWEENEY
John J. Krumenacker Eugene F. Sweeney
Controller Executive Vice President and Director
(Principal Accounting Officer)
</TABLE>
<PAGE>
<TABLE>
<S> <C>
/s/ ROBERT B. CALHOUN, JR. /s/ GERALD FARMER
Robert B. Calhoun, Jr. Gerald Farmer
Director Director
/s/ JEAN FITZGERALD /s/ JOHN J. LEE
Jean Fitzgerald John J. Lee
Director Director
/s/ WALTER C. MINK /s/ ROBERT RICE
Walter C. Mink Robert Rice
Director Director
/s/ RAYMOND B. VICKERS
Raymond B. Vickers
Director
</TABLE>
