As filed with the Securities and Exchange Commission on June 30, 1998
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)
Hvide Marine Incorporated Amended and
Restated Equity Ownership Plan
(Full title of the plans)
John H. Blankley
Executive Vice President and Chief Financial Officer
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................... 1,000,000 $13.75 $13,750,000 $4,056.25
- ---------------------------------- ------------------ -------------------- --------------------- ---------------------
</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 23, 1998.
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INTRODUCTION
REGISTRATION OF ADDITIONAL SECURITIES
This Registration Statement on Form S-8 is filed by Hvide Marine
Incorporated, a Florida corporation (the "Company"), to register an additional
1,000,000 shares of the Company's Class A Common Stock, par value $.001 per
share, issuable from time to time under the Hvide Marine Amended and Restated
Equity Ownership Plan and consists of only those items required by General
Instruction E to Form S-8.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Pursuant to the General Instructions for registration statements on
Form S-8, Part I (information required in the Section 10(a) Prospectus) is not
filed as part of this Registration Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Pursuant to General Instruction E for registration statements on Form
S-8, the contents of the Registration Statement on Form S-8 of the Company,
relating to the Hvide Marine Incorporated Equity Ownership Plan, Registration
No. 333-17621, filed with the Securities and Exchange Commission on December 11,
1996, are incorporated herein by reference.
Item 8. Exhibits.
5.1 Opinion of counsel as to the legality of the additional shares
being registered
10.1 Hvide Marine Incorporated Amended and Restated Equity Ownership
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
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the city of the District of Columbia on the 30th day of June,
1998.
HVIDE MARINE INCORPORATED
By: *
J. Erik Hvide
Chairman, President and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
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 30, 1998
- ---------------------- Executive Officer and Director (principal
J. Erik Hvide executive officer)
* Executive Vice President, Chief Financial June 30, 1998
- ---------------------- Officer and Director (principal financial
John H. Blankley officer)
* Controller (principal accounting officer) June 30, 1998
- -----------------------
John J. Krumenacker
* Executive Vice President and Director June 30, 1998
- -----------------------
Eugene F. Sweeney
* Director June 30, 1998
- -----------------------
Robert B. Calhoun, Jr.
* Director June 30, 1998
- -----------------------
Gerald Farmer
* Director June 30, 1998
- -----------------------
Jean Fitzgerald
</TABLE>
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<TABLE>
<CAPTION>
<S> <C> <C>
* Director June 30, 1998
- -----------------------
John J. Lee
* Director June 30, 1998
- -----------------------
Walter C. Mink
* Director June 30, 1998
- -----------------------
Robert Rice
* Director June 30, 1998
- -----------------------
Raymond B. Vickers
* Director June 30, 1998
- -----------------------
Josiah O. Low III
</TABLE>
*By: /S/ MICHAEL JOSEPH
Michael Joseph
Attorney-in-Fact
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INDEX TO EXHIBITS
Exhibit
Number Description of Document
5.1 Opinion of counsel as to the legality of the additional shares
being registered
10.1 Hvide Marine Incorporated Amended and Restated Equity Ownership
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 30, 1998
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 preparation of a registration statement
on Form S-8 (the "Registration Statement"), which is to be filed with the
Securities and Exchange Commission pursuant to General Instruction E of Form
S-8, to register an additional 1,000,000 shares of the Company's Class A Common
Stock, par value $.001 per share (the "Additional Shares"), that may be issued
from time to time pursuant to the Hvide Marine Incorporated Amended and Restated
Equity Ownership Plan (the "Plan").
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 Additional Shares have been duly authorized and, when issued,
delivered and paid for pursuant to and in accordance with the Plan, 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,
/s/ Dyer Ellis & Joseph
Exhibit 10.1
HVIDE MARINE INCORPORATED
AMENDED AND RESTATED
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............................... 8
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
SECTION 4 RESTRICTIONS ON STOCK...................................... 10
4.1 Escrow of Shares.............................................. 10
4.2 Forfeiture of Shares.......................................... 10
4.3 Restrictions on Transfer...................................... 10
<PAGE>
SECTION 5 GENERAL PROVISIONS......................................... 10
5.1 Withholding................................................... 10
5.2 Changes in Capitalization; Merger; Liquidation................ 11
5.3 Compliance with Code.......................................... 12
5.4 Right to Terminate Employment................................. 12
5.5 Restrictions on Delivery and Sale of Shares; Legends.......... 12
5.6 Non-alienation of Benefits.................................... 12
5.7 Termination and Amendment of the Plan......................... 12
5.8 Stockholder Approval.......................................... 13
5.9 Choice of Law................................................. 13
Effective Date of Plan................................................. 13
<PAGE>
HVIDE MARINE INCORPORATED
AMENDED AND RESTATED
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 1 -- DEFINITIONS
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
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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 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
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(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.
(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.
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(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 NonQualified 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 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
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 personnel.
2.2 Stock Subject to the Plan. Subject to adjustment in accordance with
Section 5.2, 2,000,000 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
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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 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.
2.4 Eligibility and Limits. Participants in the Plan shall be selected
by the Committee from among those employees of the Company and its affiliates
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.
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(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 NonQualified 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 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
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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;
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
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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 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,
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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.
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
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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 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
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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 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 reorgan-
ization of the
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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 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
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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:
Attest:
Secretary
[CORPORATE SEAL]
13
Exhibit 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We consent to the incorporation by reference in the Registration
Statement (Form S-8) dated June 30, 1998, pertaining to the Hvide Marine
Incorporated Amended and Restated Equity Ownership Plan of our report dated
February 19, 1998 except for the third paragraph of Note 18, as to which the
date is March 16, 1998, 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, 1997, filed with the Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
Miami, Florida
June 26, 1998
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 30, 1998.
Hvide Marine Incorporated
<TABLE>
<CAPTION>
<S> <C>
Attest: /S/ Christopher D. Strong By: /S/ J. Erik Hvide
Christopher D. Strong J. Erik Hvide
Assistant 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) (Principal Financial Officer)
/S/ John Krumenacker /S/ Eugene F. Sweeney
John Krumenacker Eugene F. Sweeney
Controller Executive Vice President and Director
(Principal Accounting Officer)
/S/ Robert B. Calhoun, Jr. /S/ Gerald Farmer
Robert B. Calhoun, Jr. Gerald Farmer
Director Director
</TABLE>
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<PAGE>
<TABLE>
<CAPTION>
<S> <C>
/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 /S/ Josiah O. Low III
Raymond B. Vickers Josiah O. Low III
Director Director
</TABLE>
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