-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, CqYXCs/DeOF+z7ljLX5GolRhSHZPctrqakji9cp9FdZlAXHV0SQ4Ace/XVYtA/O3 7k6eE7U+StkVnvvlomsLgA== 0000925328-00-000003.txt : 20000216 0000925328-00-000003.hdr.sgml : 20000216 ACCESSION NUMBER: 0000925328-00-000003 CONFORMED SUBMISSION TYPE: S-3 PUBLIC DOCUMENT COUNT: 6 FILED AS OF DATE: 20000214 FILER: COMPANY DATA: COMPANY CONFORMED NAME: HVIDE MARINE INC CENTRAL INDEX KEY: 0000922341 STANDARD INDUSTRIAL CLASSIFICATION: DEEP SEA FOREIGN TRANSPORTATION OF FREIGHT [4412] IRS NUMBER: 650524593 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-3 SEC ACT: SEC FILE NUMBER: 333-30390 FILM NUMBER: 544475 BUSINESS ADDRESS: STREET 1: 2200 ELLER DR BLDG 27 STREET 2: PO BOX 13038 CITY: FORT LAUDERDALE STATE: FL ZIP: 33316 BUSINESS PHONE: 3055232200 MAIL ADDRESS: STREET 1: 2200 ELLER DR BLDG 27 CITY: FT LAUDERDALE STATE: FL ZIP: 33316 S-3 1 REGISTRATION STATEMENT FOR HVIDE MARINE INC. As filed with the Securities and Exchange Commission on February 14, 2000 Registration No. 333______ ================================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 --------------- FORM S-3 REGISTRATION STATEMENT Under THE SECURITIES ACT OF 1933 --------------- HVIDE MARINE INCORPORATED Delaware 65-0966399 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) --------------- 2200 Eller Drive, P.O. Box 13038 Fort Lauderdale, Florida 33316 (954) 524-4200 (Address, including zip code, and telephone number, including area code, of registrant's principal executive offices) --------------- Jean Fitzgerald Chairman and Chief Executive Officer 2200 Eller Drive, P.O. Box 13038 Fort Lauderdale, Florida 33316 (954) 524-4200 (Name, address, including zip code, and telephone number, including area code, of agent for service) --------------- Copies of communications to: John F. Kearney Dyer Ellis & Joseph, P.C. 600 New Hampshire Ave., N.W. Washington, D.C. 20037 (202) 944-3000 --------------- Approximate Date of Commencement of Proposed Sale to the Public: From time to time after this Registration Statement becomes effective. If the only securities being registered on this form are being offered pursuant to dividend or reinvestment plans, please check the following box.[ ] If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, check the following box. [X] If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ] If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ] If delivery of the prospectus is expected to be made pursuant to Rule 434, please check the following box. [ ] ================================================================================
CALCULATION OF REGISTRATION FEE: Proposed Proposed maximum maximum offering aggregate Amount of Title of each Amount to be price offering registration class of securities registered per price(1) fee to be registered security(1) Common stock, par value $0.01 per share 6,287,517 shares $11.50 $72,306,446 $19,089 Class A Warrants 57,065 warrants (2) (2) (2) Noteholder Warrants 156,777 warrants (2) (2) (2) Common stock issuable upon exercise of Class A warrants 57,065 shares $38.49 $2,196,432 $580 Common stock issuable upon exercise of noteholder warrants 156,777 shares $0.01 $1,568 $1 ======================================== ================= ============ ============== =============== Total $19,670
(1) Estimated solely for the purpose of computing the registration fee in accordance with Rule 457 of the Securities Act. (2) This registration statement also covers the shares of common stock issuable upon exercise of the warrants. In accordance with rule 457 (g), no separate fee is payable for the warrants. The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the Registration Statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine. PROSPECTUS April , 2000 Subject to Completion, Dated , 2000 Hvide Marine Incorporated 6,287,517 Shares of Common Stock Class A Warrants to Purchase 57,065 Shares of Common Stock Noteholder Warrants to Purchase 156,777 Shares of Common Stock and Shares Issued Upon Exercise of the Class A Warrants and Noteholder Warrants The security holder identified in this prospectus is offering to sell: o 6,287,517 shares of our common stock that it currently owns; o Class A Warrants to purchase 57,065 shares of our common stock; o warrants to purchase 156,777 shares of our common stock issued to the security holder in connection with its purchase of our 12 1/2% senior secured notes due 2007 (the "Noteholder Warrants"); and o the shares of our common stock issuable upon the exercise of the Class A Warrants and Noteholder Warrants. Hvide Marine Incorporated ("HMI") emerged from Chapter 11 proceedings on December 15, 1999, and the selling security holder acquired its common stock and warrants in connection with the consummation of our plan of reorganization. We agreed to register these securities for resale by the selling security holder. The selling security holder will receive all of the net proceeds from the sale of these securities and will pay any underwriting discounts and selling commissions applicable to their sale. We will not receive any proceeds from the sale of these securities. The selling security holder and participating brokers or dealers may be deemed to be underwriters within the meaning of the Securities Act. In that case, any profit on the sale of the securities by the selling security holder and any commissions or discounts received by those brokers or dealers may be deemed to be underwriting compensation under the Securities Act. The common stock and Class A Warrants are traded on the Over-the-Counter Bulletin Board under the symbols "HVDM" for the common stock and "HVDMW" for the warrants. On February 11, 2000, the last sale price for the common stock was $12.00 and for the Class A Warrants was $0.25. The Noteholder Warrants are not currently traded on any market. See"Risk Factors" beginning on page 5 for a discussion of certain factors to be considered in connection with an investment in the common stock or warrants. THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. ABOUT THIS PROSPECTUS This prospectus is a part of a registration statement that we have filed with the SEC using a "shelf registration" process. You should read both this prospectus and any supplement, together with the additional information described under "Where You Can Find More Information." You should rely only on the information provided or incorporated by reference in this prospectus or any supplement. We have not authorized anyone else to provide you with additional or different information. The common stock and warrants are not being offered in any state where the offer is not permitted. You should not assume that the information in this prospectus or any supplement is accurate as of any date other than the date of such documents. HVIDE MARINE INCORPORATED We are one of the world's leading providers of marine support and transportation services, primarily serving the energy and chemical industries. We have been an active consolidator in each of the markets in which we operate, increasing our fleet from 23 vessels in 1993 to 274 vessels at year-end 1999. Our three principal markets are domestic and international offshore energy support services, domestic offshore and harbor towing services, and transportation of specialty chemicals and petroleum products in the U.S. domestic trade. Our offshore energy support fleet provides services to operators of offshore oil and gas exploration, development and production facilities in the Gulf of Mexico, the Arabian Gulf, offshore West Africa and Southeast Asia. We are the sole provider of commercial tug services at Port Everglades and Port Canaveral, Florida, and a leading provider of those services in Tampa, Florida, Mobile, Alabama, Lake Charles, Louisiana, and Port Arthur, Texas. Our domestic transportation fleet includes five new double-hull chemical and petroleum product carriers delivered in 1998 and 1999. Our principal offices are located at 2200 Eller Drive, P.O. Box 13038, Fort Lauderdale, Florida 33316, and our telephone number is (954) 524-4200. OUR RECENT BANKRUPTCY AND REORGANIZATION The events leading to the bankruptcy Between 1997 and early 1999, we completed a number of acquisitions and built new vessels that substantially expanded our offshore energy support operations into several new international markets, increased the deepwater capability of our offshore energy support fleet, and increased our domestic offshore and harbor towing and petroleum product transportation operations. Our principal sources of cash to finance these acquisitions were bank borrowings, cash provided by operations, proceeds from two public offerings of common stock, proceeds from an offering of $119.0 million of trust preferred securities and proceeds from an offering of $300.0 million principal amount of senior notes. The significant increase in our indebtedness incurred to finance these acquisitions and newbuilds placed great demands on our capital resources beginning in late 1997, when market forces brought about a precipitous decline in our revenues. The revenues of our offshore energy support fleet are dependent upon the level of offshore oil and gas exploration, development and production activities, which are in turn heavily dependent upon the prevailing price of crude oil and natural gas. Beginning in late 1997 and continuing through 1998 and the first half of 1999, crude oil prices declined substantially, which resulted in a severe downturn in these offshore activities, and in turn, in the revenues of our offshore energy support operations. As a result of this decline in revenues, we experienced a liquidity crisis beginning in mid-1998 and were unable to comply with some of the financial covenants in our bank loan agreement. Although the lending banks agreed to modifications of these covenants, the continuing decline in our revenues caused us to be unable to comply with the modified financial covenants at the end of the first quarter of 1999. As a consequence, our independent auditors issued a qualified report on our 1998 financial statements (issued at the end of March 1999), stating that the reduction in revenues and noncompliance with the loan agreement covenants raised substantial doubt about our ability to continue as a going concern. Our lending banks agreed to further waivers of our noncompliance with covenants, which were accompanied by substantial fees and increases in interest rates. Despite these waivers, adoption of a cash management program and reduction in operating and overhead expenses during 1999, we were unable to make a $12.5 million interest payment due August 16, 1999 on our $300.0 million of senior notes. Discussions with an informal committee of holders of the senior notes and our trust preferred securities led to our filing of a petition under chapter 11 of the U.S. Bankruptcy Code on September 9, 1999. The reorganization Under our reorganization plan, which became effective on December 15, 1999: o the holders of the $300.0 million of senior notes received 9,800,000 shares of our common stock in exchange for their notes; o the holders of the $119.0 million of trust preferred securities received 200,000 shares of our common stock, as well as Class A Warrants to purchase an additional 125,000 shares, in exchange for those securities; o stockholders received Class A Warrants to purchase a total of 125,000 shares of our common stock; o Noteholder Warrants to purchase 6.75% of our common stock on a fully diluted basis, exercisable at a nominal purchase price for seven and one-half years, were issued to purchasers of our new senior secured second notes described below; and o claims of general and trade creditors were unaffected. The 9,800,000 shares received by the holders of the senior notes represent 98.0% of our currently outstanding common stock and % of our common stock on fully diluted basis after assuming exercise of all the Class A Warrants and the Noteholder Warrants. The 200,000 shares received by holders of the trust preferred securities represent 2.0% of our currently outstanding common stock and % of our common stock on fully diluted basis. We also obtained new credit facilities from a group of financial institutions. The new facilities, totaling $320.0 million, consist of $200.0 million in term loans, a $25.0 million revolving credit facility, and $95.0 million in aggregate principal amount at maturity of new 12 1/2% senior secured notes due 2007. A portion of the proceeds from these facilities was used to repay all outstanding borrowings under our bank loans and to pay administrative and other fees and expenses. The balance of the proceeds will be used for working capital and general corporate purposes. The terms of the term loans and revolving credit facility are contained in a credit agreement between us and the financial institutions. The credit agreement provides for the following facilities:
Facility Amount Maturity o A term loan $75 million 2004 o B term loan $30 million 2005 o C term loan $95 million 2006 o Revolving loan $25 million 2004
The interest rate for borrowings under the credit agreement is set from time to time at our option, subject to certain conditions set forth in the credit agreement, at either: o the higher of the rate that the administrative agent announces from time to time as its prime lending rate and 1/2 of 1% in excess of the overnight federal funds rate, plus a margin ranging from 2.25% to 4.25% or o a rate based on a percentage of the administrative agent's quotation to first-class banks in the New York interbank Eurodollar market for dollar deposits, plus a margin ranging from 3.25% to 4.25%. Borrowings under the credit agreement are secured by first priority perfected security interests in substantially all of the equity of our subsidiaries and by first priority perfected security interests in substantially all of the vessels and other assets owned by us and our subsidiaries. In addition, substantially all of our subsidiaries have guaranteed our obligations under the credit agreement. The credit agreement contains customary covenants that require us, among other things, to meet certain financial ratios and that prohibit us from taking certain actions and entering into certain transactions. The senior secured notes are our senior obligations and are secured by a second priority lien on the assets that secure borrowings under the credit agreement. The notes are unconditionally guaranteed by all of our subsidiaries that have guaranteed borrowings under the credit agreement. The notes were issued at 90.0% of their face value for gross proceeds of $85.5 million. The notes were issued under an indenture among us, the subsidiary guarantors and financial institutions serving as trustee and collateral agent. The indenture contains customary covenants that, among other things, restrict our ability to incur additional debt, sell assets, and engage in mergers and transactions with affiliates. As consideration for the purchase of the notes and as compensation for certain financial services, we issued to the purchasers of the notes Noteholder Warrants to purchase 6.75% of our common stock on a fully diluted basis at an exercise price of $.01 per share for a term of seven and one-half years. RISK FACTORS In addition to the other information contained and incorporated by reference in this prospectus, you should carefully consider the following risk factors relating to an investment in our shares and warrants. The risks and uncertainties described below are not the only ones facing our company. Additional risks and uncertainties not presently known to us or that we currently deem immaterial may also impair our business. The actual sale or possibility of the sale of substantial amounts of our common stock by the selling security holder could negatively affect the market price of our common stock. The shares of common stock offered by this prospectus, including the shares issuable upon the exercise of the warrants, constitute approximately 63.7% of our outstanding common stock and are beneficially owned by accounts managed by the selling security holder. This prospectus has been prepared to permit this holder to sell all of its common stock and warrants and the common stock underlying the warrants from time to time, if it chooses to do so, without any volume or other limitations. Sales of substantial amounts of our securities by this holder, or the possibility that substantial sales may occur, could negatively affect prevailing market prices for our securities. Our recent bankruptcy has adversely affected our ability to compete and is likely to continue to do so. We emerged from bankruptcy on December 15, 1999, the effective date of our plan of reorganization. While we were in bankruptcy, the resulting adverse publicity harmed our ability to attract new customers and to maintain favorable relationships with our existing customers and suppliers. For example, some of our suppliers required cash payments rather than extend credit, which adversely affected our liquidity. We also experienced attrition of employees in key functions. These trends may continue even though we are no longer in bankruptcy. The marine transportation industry is highly competitive, and these factors have had and are likely to continue to have an adverse effect on our ability to compete. We are highly leveraged. Although our plan of reorganization significantly reduced our debt, we still have substantial debt and debt service requirements, in absolute terms and in relation to stockholders' equity. Our ability to meet our debt service obligations will depend on a number of factors, including management's ability to maintain operating cash flow. We cannot assure you that we will achieve our targeted levels of operating cash flow. Our ability to maintain or increase operating cash flow will depend upon improvement in industry conditions discussed elsewhere in these risk factors, prevailing economic conditions and other factors, many of which are beyond our control. Our inability to maintain or increase our operating cash flow may have a material adverse impact on our business and the market price of our securities. Depressed industry conditions and substantial cash requirements have adversely affected our liquidity and may continue to do so. Beginning in mid-1998, there was a severe downturn in offshore oil and gas exploration, development and production activities in all markets in which our offshore energy support fleet operates. This downturn, which was primarily a result of a worldwide decline in oil and gas prices, resulted in a substantial decline in vessel rates and utilization throughout our industry and adversely affected our operating results. As a result, we have experienced substantial declines in revenue, earnings before interest, taxes and depreciation, or EBITDA, and net losses. Our business is not expected to fully recover unless recent oil and gas price increases are sustained, leading to upturns in exploration, development and production activities. If there is no significant increase in those activities, our liquidity will continue to be adversely affected, and our cash flow from operations and cash on hand will not be sufficient to satisfy our short-term working capital needs, capital expenditures, debt service requirements and lease and other payment obligations. Our business is substantially dependent on the oil and gas industry, which is cyclical and is currently operating at reduced levels. Our business and operations are substantially dependent upon conditions in the oil and gas industry, particularly expenditures by oil and gas companies for offshore exploration, development and production activities. These expenditures, and hence the demand for offshore energy support and transportation services, are directly influenced by oil and gas prices, expectations concerning future prices, the cost of producing and delivering oil and gas and government regulation and policies regarding exploration and development of oil and gas reserves, including the ability of OPEC to set and maintain production levels and prices. Since mid-1998, there has been a severe downturn in the level of offshore exploration and production activity, which has adversely affected the rates we receive for and the level of utilization of our offshore energy support vessels. Offshore exploration and production expenditures may not increase in the near future, and our business will not recover until there is a significant increase in these expenditures. While oil and gas prices have recently increased, the increases are not yet generally believed to be sufficiently sustained to lead to upturns in offshore exploration, development and production activities to their previous levels. We cannot predict whether or when vessel utilization and rates will improve or the extent of any improvement. Excess vessel supply and vessel newbuilds have depressed day rates and adversely affected our operating results and have caused any recovery in the offshore energy support market to lag increases in oil and gas prices. Our offshore energy support business is affected by the supply of and demand for offshore energy support vessels. During periods when supply exceeds demand there is significant downward pressure on the rates we can obtain for our vessels. Because vessel operating costs cannot be significantly reduced, any reduction in rates adversely affects our results of operations. Currently, the industry supply of offshore energy support vessels significantly exceeds demand, and this imbalance is expected to increase with the delivery of additional vessels currently under construction or on order. Newbuilds generally have substantially greater capability than older vessels, thereby exacerbating the oversupply. In addition, because the supply of vessels currently exceeds demand, we and other vessel operators have elected to defer drydocking and other significant maintenance capital expenditures and have "cold stacked" vessels, thereby creating an additional source of vessels if vessel demand increases. Thus, before there is significant improvement in vessel day rates and utilization, exploration and production activities will have to increase to levels that will generate demand for the current excess supply, cold-stacked vessels and the newbuilds that come into service. We may be at a competitive disadvantage in responding to any improved demand in the offshore energy support industry. As a result of our need to reduce capital expenditures, we are deferring required drydockings of a number of our offshore energy support vessels that are laid up due to lack of demand. If and when increased demand should provide employment opportunities for these vessels, we might not have the capital resources with which to proceed with the required drydockings or to proceed with them on as timely a basis as our competitors that have sufficient resources. We also will be required to undertake the maintenance that has been and will be deferred due to our program to reduce expenditures. We conduct international operations, which involve additional risks. We operate vessels worldwide. Operations outside the United States involve additional risks, including the possibility of vessel seizure, foreign taxation, political instability, foreign and domestic monetary and tax policies, expropriation, nationalization, loss of contract rights, war and civil disturbances or other risks that may limit or disrupt markets. Additionally, our ability to compete in the international offshore energy support market may be adversely affected by foreign government regulations that favor or require the awarding of contracts to local persons, or that require foreign persons to employ citizens of, or purchase supplies from, a particular jurisdiction. Further, our foreign subsidiaries may face governmentally imposed restrictions on their ability to transfer funds to their parent company. Our offshore energy support fleet includes many older vessels. The average age of our offshore energy support vessels, based on the later of the date of construction or rebuilding, is approximately 18 years, and approximately 31% of these vessels are more than 20 years old. We believe that after a vessel has been in service for approximately 30 years, repair, vessel certification and maintenance costs may not be economically justifiable. We may not be able to maintain our fleet by extending the economic life of existing vessels through major refurbishment or by acquiring new or used vessels. Our business is subject to environmental risk and regulations. Our operations are subject to federal, state, local and foreign laws and regulations relating to safety and health and environmental protection, including the generation, storage, handling, emission, transportation and discharge of hazardous and non-hazardous materials. The trend in environmental legislation and regulation is generally toward stricter standards, and this trend will likely continue. If we fail to comply with these regulations, we could face substantial liability for damages, remediation costs and penalties associated with oil or hazardous-substance spills or other discharges into the environment involving our vessel operations. Damages under these regulations are defined broadly to include: o natural resource damages and the costs of assessment; o damages for injury to or losses resulting from destruction of property; o net loss of taxes, royalties, rents, fees and profits by the U.S. federal, state, local and foreign governments; o lost profits from property or natural resource damage; o the net costs of providing increased or additional public services necessitated by a spill response, including protection from fire, safety or other hazards; and o the loss of subsistence use of natural resources. Our shoreside operations are also subject to federal, state, local and foreign environmental laws and regulations. In addition, tanker owners and operators are required to establish and maintain evidence of financial responsibility with respect to potential oil spill liability. We currently satisfy this requirement through self-insurance or third-party insurance. Amendments to existing laws and regulations or new laws and regulations may be adopted that could limit our ability to do business or increase our cost of doing business. Our business involves hazardous activities and other risks of loss against which we may not be adequately insured. Our business is affected by a number of risks, including the mechanical failure of our vessels, collisions, vessel loss or damage, cargo loss or damage, hostilities and labor strikes. In addition, the operation of any vessel is subject to the inherent possibility of a catastrophic marine disaster, including oil, fuel or chemical spills and other environmental mishaps, as well as other liabilities arising from owning and operating vessels. Any such event may result in the loss of revenues and increased costs and other liabilities. Although our losses from such hazards have not historically exceeded our insurance coverage, there can be no assurance that this will continue to be the case. The Oil Pollution Act of 1990, known as OPA 90, imposes virtually unlimited liability upon vessel owners, operators and certain charterers for certain oil pollution accidents in the United States. This has made liability insurance more expensive and has also prompted insurers to consider reducing available liability coverage. While we maintain insurance, there can be no assurance that all risks are adequately insured against, particularly in light of the virtually unlimited liability imposed by OPA 90, and that any particular claim will be paid. In addition, we may not be able to procure adequate insurance coverage at commercially reasonable rates in the future. Because we maintain mutual insurance, we are subject to funding requirements and coverage shortfalls in the event claims exceed available funds and reinsurance, and to premium increases based on prior loss experience. Any shortfalls could have a material adverse impact on our financial condition. We could lose Jones Act protection. A substantial portion of our operations is conducted in the U.S. domestic trade. Under the U.S. coastwise laws, known as the Jones Act, this trade is restricted to vessels built in the United States, owned and manned by U.S. citizens and registered under U.S. law. There have been repeated attempts to repeal the Jones Act, and these attempts are expected to continue in the future. Repeal of the Jones Act would result in additional competition from vessels built in lower-cost foreign shipyards and owned and manned by foreign nationals accepting lower wages and benefits than U.S. citizens, which could have a material adverse effect on our business. We will have to remove some of our vessels from the Jones Act trade. OPA 90 establishes a phase-out schedule, depending upon vessel size and age, for single-hull vessels carrying crude oil and petroleum products. The phase-out dates for our single-hull carriers are as follows: HMI Trader -- 2000, Seabulk Magnachem -- 2007, HMI Defender -- 2008, HMI Dynachem -- 2011, HMI Petrochem -- 2011 and Seabulk America -- 2015. The phase-out date for some of our fuel barges is 2015. As a result of this requirement, these vessels will be prohibited from transporting petroleum products in U.S. waters after their phase-out dates. However, these vessels may be taken out of service for other reasons prior to their OPA 90 phase-out dates. Although our remaining vessels are not subject to mandatory retirement, and we employ what we believe to be a satisfactory maintenance program for all our vessels, we may not be able to maintain our fleet by extending the economic lives of existing vessels or acquiring new or used vessels. There are restrictions on foreign ownership of our stock. In order to maintain our eligibility to operate vessels in the U.S. domestic trade, 75% of our outstanding common stock is required to be held by U.S. citizens. Although our certificate of incorporation contains provisions limiting non-U.S.-citizen ownership of our capital stock, we could lose our ability to conduct operations in the domestic trade if these provisions prove unsuccessful in maintaining the required level of citizen ownership. Loss of this ability would harm our business. As a result of this limitation upon the non-U.S.-citizen ownership of our common stock, any non-U.S.-citizen holder of our common stock may, to the extent such ownership would cause 25% or more of our outstanding common stock to be held by non-U.S.-citizens, be required to sell its common stock to us. There is no established trading market for our equity securities. Although our common stock was previously traded on the Nasdaq National Market, Nasdaq halted trading of our shares when we initiated our chapter 11 reorganization. Our new common stock and warrants were issued as of December 15, 1999, the effective date of our plan of reorganization, and do not have an established trading market. As a result, there may be little liquidity in the market for these securities, market prices may not reflect their true value, and market prices may change substantially in response to changes in the supply of and demand for the securities. The Class A Warrants may expire before the market price of the common stock exceeds their exercise price. The market price of the common stock may never exceed the Class A Warrant exercise price of $38.49 per share, or may exceed the exercise price only after the Class A Warrants expire on December 14, 2003. As a result, a purchaser of the Class A Warrants may never be able to obtain value through the exercise of the warrants. We do not anticipate paying dividends. We do not anticipate paying any dividends on our common stock in the foreseeable future. In addition, the covenants in our borrowing agreements prohibit the payment of dividends. We are authorized to issue preferred stock without stockholder approval. We are authorized to issue preferred stock without stockholder approval. If we issue preferred stock, it may have dividend, liquidation and voting rights senior to those of our common stock. As a result, the effects of an issuance of preferred stock could include: o reduction of the amount of cash otherwise available for payment of dividends on our common stock, o dilution of the voting power of our common stock if the preferred stock has voting rights, and o restriction of the rights of holders of our common stock to share in our assets upon liquidation until satisfaction of any liquidation preference granted to the holders of preferred stock. In addition, so-called "blank check" preferred stock may be viewed as having possible anti-takeover effects, if it were used to make a third party's attempt to gain control of our company more difficult, time consuming or costly. We have no current plans to issue preferred stock as an anti-takeover device or otherwise, and our borrowing agreements restrict our ability to issue preferred stock. Our borrowing agreements contain covenants that restrict our activities. Our borrowing agreements o require us to meet certain financial tests, including the maintenance of minimum ratios of leverage, debt service and indebtedness to net worth, o limit certain liens, o limit additional borrowing, o restrict us from making certain investments, o restrict certain payments, including dividends, on shares of any class of capital stock, and o limit our ability to do certain things, such as entering into certain types of business transactions, including mergers and acquisitions. These provisions could limit our future ability to continue to pursue actions or strategies that we believe would be beneficial to our company or our stockholders. Forward-Looking Statements This prospectus and the information it incorporates by reference include forward-looking statements. These are statements that address activities, events or developments that we expect, project, believe or anticipate will or may occur in the future. Examples include statements about future levels of day rates for offshore energy support vessels, future capital expenditures and investments in the acquisition and refurbishment of vessels, repayment of debt, business strategies, future acquisitions, expansion and growth of operations and other similar matters. These statements are based on assumptions and analyses made by our management in light of its experience and its perception of historical trends, current conditions, expected future developments, and other factors it believes are appropriate in the circumstances. These statements are subject to a number of assumptions, risks and uncertainties, including the risk factors discussed in this prospectus, general economic and business conditions, oil and gas prices, foreign exchange and currency fluctuations, the business opportunities (or lack thereof) that may be presented to and pursued by us, changes in laws or regulations and other factors, many of which are beyond our control. We caution you that these forward-looking statements are not guarantees of future performance and that actual results or developments may differ materially from those we project. DESCRIPTION OF CAPITAL STOCK We are authorized to issue 20,000,000 shares of common stock, par value $0.01 per share, and 5,000,000 shares of preferred stock, without par value. As of February 11, 2000, 10,000,000 shares of common stock were issued and outstanding. We have not issued any preferred stock. Common Stock Holders of our common stock are entitled to one vote for each share held of record on all matters submitted to a vote of the stockholders, including the election of directors. They do not have cumulative voting rights. Subject to preferences that may be applicable to any outstanding series of preferred stock, holders of our common stock are entitled to share ratably in any dividends that may be declared by our Board of Directors out of legally available funds. Upon any liquidation, dissolution or winding up of HMI, the holders of common stock will be entitled to share ratably in the net assets legally available for distribution to shareholders, in each case after payment of all of our liabilities and subject to preferences that may be applicable to any series of preferred stock then outstanding. Holders of common stock have no preemptive or conversion rights or other rights to subscribe for additional shares. There are no sinking fund provisions applicable to the common stock. Subject to applicable law, we may, at the discretion of our Board, redeem shares of our common stock if the provisions described under "--Limitation on Stock Ownership by Non-U.S. Citizens" are not met. The outstanding shares of common stock are fully paid and nonassessable. The rights, preferences and privileges of holders of common stock are subject to the rights of the holders of shares of any series of preferred stock that we may designate and issue in the future. Preferred Stock Our Board has the authority, without further action by the stockholders, to issue from time to time shares of preferred stock in one or more series. The Board may fix the number of shares, designations, preferences, powers and other special rights of the preferred stock. The preferences, powers, rights and restrictions of different series of preferred stock may differ. The issuance of preferred stock could decrease the amount of earnings and assets available for distribution to holders of common stock or affect adversely the rights and powers, including voting rights, of the holders of common stock. The issuance may also have the effect of discouraging, delaying or preventing a change in control of HMI, regardless of whether the transaction may be beneficial to stockholders. We have no current plans to issue any shares of preferred stock. Delaware Law and Certain Charter and By-law Provisions Section 203 of the General Corporation Law of Delaware (the "GCL"), an antitakeover law, prohibits a publicly held Delaware corporation from engaging in a "business combination" with an "interested stockholder" for a period of three years after the date of the transaction in which the person became an interested stockholder. There are several exceptions that permit an interested stockholder to engage in a business combination, including if prior to the date the stockholder became an interested stockholder the Board approves either the business combination or the interested stockholder transaction, or if the business combination is approved by our Board and authorized by a vote of at least 66 2/3% of the outstanding voting stock of the corporation not owned by the interested stockholder. A "business combination" includes mergers, asset sales and other transactions resulting in a financial benefit to the interested stockholder. Subject to some exceptions, an "interested stockholder" is a person who, together with affiliates and associates, owns, or within three years did own, 15% or more of the corporation's voting stock. Our certificate of incorporation and by-laws provide for the division of our Board into three classes as nearly equal in size as possible with staggered three-year terms. Any vacancy on the Board, however occurring, including a vacancy resulting from an enlargement of the Board, may be filled only by vote of a majority of the directors then in office. The classification of our Board and the limitation on the filling of vacancies could have the effect of making it more difficult for a third party to acquire, or of discouraging a third party from acquiring, control of HMI. Our certificate of incorporation prohibits the issuance of nonvoting equity securities. However, preferred stock having the right, voting separately as a class, to elect any directors if and when dividends payable on shares of preferred stock have been in arrears and unpaid for a specified period of time will not be deemed nonvoting equity securities. Limitation of Liability Our certificate of incorporation contains a provision eliminating, to the fullest extent permitted by the GCL, directors' personal liability to HMI and to its stockholders for monetary damages for breaches of fiduciary duty. By virtue of this provision, under the GCL, a director will not be personally liable for monetary damages for a breach of his or her fiduciary duty, except for liability arising out of: o a breach of duty of loyalty to HMI or to its stockholders, o acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law, o dividends or stock repurchases or redemptions that are unlawful under Delaware law, or o any transaction from which the director receives an improper personal benefit. This provision pertains only to breaches of duty by directors as directors and not in any other corporate capacity, such as officers. Our certificate of incorporation also provides that HMI shall, to the fullest extent permitted by the GCL, indemnify each director, officer, employee or agent against, and hold each director, officer, employee or agent harmless from, certain expenses, liabilities, and losses, including attorneys' fees. These expenses, liabilities, and losses are those reasonably incurred in connection with a proceeding brought against the director or officer by reason of the fact that he or she was a director, officer, employee or agent of HMI or was serving at our request as a director, officer, employee or agent of another entity. Under this provision, we are required to advance all reasonable costs incurred in defending any such proceeding to the fullest extent permitted by Delaware law. Limitation on Stock Ownership by Non-U.S. Citizens Our certificate of incorporation: o contains provisions limiting the aggregate percentage ownership by non-U.S. citizens (as defined below) of each class of our capital stock to 24.99% of the outstanding shares of each class to ensure that such foreign ownership will not exceed the maximum percentage of 25.0% permitted by federal law, o requires a dual stock certificate system to help determine non-U.S.-citizen ownership, and o permits the Board to make determinations reasonably necessary to ascertain such ownership and implement the limitations. These provisions are intended to protect our ability to operate our vessels in the U.S. domestic trade governed by the Jones Act, and to assure continuous compliance with the citizenship requirements of the Merchant Marine Act, 1936, as amended, and the Shipping Act, 1916, as amended, and the regulations promulgated thereunder. Under our dual stock certificate system, certificates representing shares of our common stock bear legends that designate the certificates as either "citizen" or "non-citizen," depending on the citizenship of the owner. We may also issue non-certificated shares through depositories if we determine that the depositories have established procedures that allow us to monitor the ownership of our common stock by non-U.S. citizens. For purposes of the dual stock certificate system, a "non-citizen" is defined as any person other than a citizen, and a "citizen" is defined as: o any individual who is a citizen of the U.S. by birth, naturalization, or as otherwise authorized by law; o any corporation (a) organized under the laws of the U.S., or a state, territory, district, political subdivision or possession thereof (each, a "state"), (b) of which title to not less than 75% of each class or series of its stock is beneficially owned by and vested in citizens, free from any trust or fiduciary obligation in favor of non-U.S. citizens, (c) of which not less than 75% of the voting power is vested in citizens, free from any contract or understanding through which voting power may be exercised directly or indirectly on behalf of non-U.S. citizens, (d) of which there are no other means by which control is conferred upon or permitted to be exercised by non-U.S. citizens, (e) whose president, chief executive officer, chairman of the board and all officers authorized to act in their absence or disability, are citizens, and (f) of which more than 50% of the number of its directors necessary to constitute a quorum are citizens; o any partnership (a) organized under the laws of the U.S. or a state of the U.S., (b) all general partners of which are citizens, and (c) of which not less than a 75% interest is beneficially owned and controlled by, and vested in, citizens, free and clear of any trust or fiduciary obligation in favor of non-U.S. citizens; o any association (a) organized under the laws of the U.S. or a state of the U.S., (b) of which 100% of the members are citizens, (c) whose president, chief executive officer, or equivalent position, chairman of the board, or equivalent committee or body, and all persons authorized to act in their absence or disability, are citizens, (d) of which not less than 75% of the voting power is beneficially owned by citizens, free and clear of any trust or fiduciary obligation in favor of non-U.S. citizens, and (e) of which more than 50% of that number of its directors or equivalent persons necessary to constitute a quorum are citizens; o any limited liability company (a) organized under the laws of the U.S. or a state of the U.S., (b) of which not less than 75% of the members are citizens, and the remaining members are persons meeting the requirements of 46 U.S.C.ss.12102(a), (c) of which not less than 75% of the voting power is vested in citizens, free and clear of any trust or fiduciary obligation in favor of any non-U.S. citizen, (d) whose president or other chief executive officer or equivalent position, chairman of the board or equivalent committee or body, managing members (or equivalent), if any, and all persons authorized to act in their absence or disability are citizens and (e) of which more than 50% of the number of its directors or equivalent persons necessary to constitute a quorum are citizens; o any joint venture, if not an association, corporation, partnership, or limited liability company, (a) organized under the laws of the U.S. or a state of the U.S., and (b) 100% of the members are, or of which 100% of the equity is beneficially owned and vested in citizens, free and clear of any trust or fiduciary obligation in favor of any non-U.S. citizens; and o any trust (a) domiciled in and existing under the laws of the U.S. or a state of the U.S., (b) all of the trustees of which are citizens, (c) of which not less than a 75% interest is held for the benefit of citizens, free and clear of any trust or fiduciary obligation in favor or any non-U.S. citizens and (d) each beneficiary of which with an enforceable interest in the trust is a citizen. This definition is applicable at all tiers of ownership and in both form and substance at each tier of ownership. Shares of our common stock are transferable to citizens at any time and are transferable to non-U.S. citizens if, at the time of the transfer, the transfer would not increase the aggregate ownership by non-U.S. citizens of our common stock above 24.99% of the total outstanding shares. Any purported transfer to non-U.S. citizens of shares in excess of 24.99% of the outstanding shares will be ineffective as against us for all purposes, including voting, dividends, and other distributions. In addition, the shares may not be transferred on our books and we may refuse to recognize the holder as a stockholder, except to the extent necessary to effect any remedy available to us. Subject to these limitations, upon surrender of any stock certificate for transfer, the transferee will receive citizen (blue) certificates or non-U.S. citizen (red) certificates. Our certificate of incorporation establishes procedures for the transfer of shares to enforce the limitations described above. Under the procedures, before a stock certificate is issued or transferred, the recipient or transferee of the shares must provide a certificate providing information about their citizenship. If the recipient or transferee is acting as a fiduciary or nominee for a beneficial owner, the beneficial owner must provide the certificate. The issuance or transfer will be denied upon refusal to furnish the citizenship certificate. Furthermore, as part of the dual stock certificate system, depositories holding shares of our common stock will be required to maintain separate accounts for citizen and non-U.S. citizen shares. When the beneficial ownership of shares is transferred, the depositories' participants will be required to advise the depositories as to the account in which the transferred shares should be held. In addition, to the extent necessary to enable us to determine the number of shares owned by non-U.S. citizens, we may require record holders and beneficial owners of shares of common stock to confirm their citizenship status and may temporarily withhold dividends payable to, and deny voting rights to, any such record holder or beneficial owner until confirmation of citizenship is received. Should we become aware that the ownership by non-U.S. citizens of our common stock at any time exceeds 24.99% of our outstanding shares we may temporarily withhold dividends and other distributions on and to deny voting rights with respect to the excess shares. We may withhold dividends and distributions and deny voting rights pending the transfer of the excess shares such shares to a citizen or the reduction in the percentage of shares owned by non-U.S. citizens to below 25.0%. If we withhold dividends and distributions, we will set them aside for the account of the excess shares. Once the excess shares are transferred to a citizen or the aggregate ownership of shares by non-U.S. citizens is less than 25.0%, we will pay the dividends to the then record holders of the related shares. So long as the excess exists, excess shares will not be deemed to be outstanding for purposes of determining the vote required on any matter brought before the stockholders for a vote. Our Board has the power to determine which shares of common stock constitute the excess shares. The determination will be made by reference to the date or dates on which the shares were purchased by non-U.S. citizens, starting with the most recent acquisitions of shares by a non-U.S. citizen and including, in reverse chronological order, all other acquisitions of shares by non-U.S. citizens from and after the acquisition that first caused the percentage of shares owned by non-U.S. citizens to exceed 24.99%. The excess shares resulting from a determination that a record holder or beneficial owner is no longer a citizen will be deemed to have been acquired as of the date of such determination. We may redeem excess shares in order to reduce the aggregate ownership by non-U.S. citizens to 24.99%. As long as our common stock is not authorized for listing on a national securities exchange or for quotation on the Nasdaq National Market, the redemption price will be the average of the bid and asked prices furnished by any Nasdaq member firm that makes a market for the 30 trading days preceding the date of determination. If it is so listed, the redemption price will be the average of the closing sale price of the shares during the 30 trading days preceding the date of determination. The redemption price for excess shares will be payable in cash. In addition to implementing these procedures, our Board may take other ministerial actions or interpret our foreign ownership policy as it deems necessary in order to implement the policy. --------- The above statements and descriptions concerning our certificate of incorporation and by-laws are not complete and are qualified by reference to the copies of those documents that have been filed as exhibits to the registration statement of which this prospectus is part. For information on obtaining copies of those documents, see "Where You Can find More Information." DESCRIPTION OF CLASS A WARRANTS The Class A Warrants are subject to a Warrant Agreement (the "Class A Warrant Agreement") between us and State Street Bank and Trust Company (the "Warrant Agent"). The following summary of the material provisions of the Class A Warrant Agreement is not complete; for more information, refer to the Class A Warrant Agreement, which is an exhibit to the registration statement of which this prospectus is part. For information on obtaining a copy of the Class A Warrant Agreement, see "Where You Can Find More Information." General Each Class A Warrant entitles the holder to purchase one share of our common stock at an exercise price of $38.49 (the "Class A Exercise Price"). The exercise price and the number of shares of common stock issuable upon the exercise of the Class A Warrants are both subject to adjustment in certain cases described below. The Class A Warrants are exercisable at any time on or after December 15, 1999. If they are not exercised, the Class A Warrants will automatically expire at 5:00 p.m. on December 14, 2003 (the "Expiration Date"). The Class A Warrants may be exercised by surrendering to the Warrant Agent the warrant certificates, if any, with the accompanying form of election to purchase and an application for purchase of common stock (or equivalent form with citizenship information). No Class A Warrant may be exercised if such exercise causes ownership of our common stock by non-U.S. citizens to exceed the limit set by applicable law or our certificate of incorporation. These must be properly completed and executed and delivered with payment of the Class A Exercise Price. Payment of the Class A Exercise Price may be made in the form of cash or a certified or official bank check, payable to the order of Hvide Marine Incorporated. Upon surrender of the warrant certificates and payment of the Class A Exercise Price, the Warrant Agent will notify us, and we will deliver to or upon the written order of the holder, stock certificates representing the number of whole shares of common stock or other property to which the holder is entitled, including any cash payment to adjust for fractional interests in shares issuable upon exercise. If less than all of the Class A Warrants evidenced by a Class A Warrant certificate are exercised, a new Class A Warrant certificate will be issued for the remaining number of Class A Warrants. We will not be required to, but may at our option, issue fractional shares of common stock on the exercise of Class A Warrants. If more than one Class A Warrant is presented for exercise in full at the same time by the same holder, the number of full shares issuable upon such exercise will be computed on the basis of the aggregate number of shares issuable on exercise of the Class A Warrants so presented. If any fraction of a share would be issuable on the exercise of any Class A Warrant, and we elect not to issue such fractional shares, we will direct the transfer agent to pay cash equal to the then current market price per share multiplied by the fraction computed to the nearest whole cent. Certificates for Class A Warrants will be issued in registered form only, and no service charge will be made for registration for transfer or exchange upon surrender of any warrant certificate at the office of the Warrant Agent maintained for that purpose. We may require payment of a sum sufficient to cover any tax or other governmental charge imposed in connection with registration for transfer or exchange of warrant certificates. The holders of the Class A Warrants do not have the rights of stockholders, including the right to vote on matters submitted to our stockholders and the right to receive cash dividends. The holders of the Class A Warrants are not entitled to share in our assets in the event of the liquidation, dissolution or winding up of our company's affairs. Adjustments The number of shares issuable upon the exercise of the Class A Warrants and the Class A Exercise Price both are subject to adjustment in certain events. These events include if we o subdivide our outstanding shares of common stock, o combine our outstanding shares of common stock into a smaller number of shares, or o issue by reclassification of our shares of common stock any shares of our capital stock. The Class A Exercise Price in effect and the number of shares issuable upon exercise of each Class A Warrant immediately prior to these actions will be adjusted so that the holder of any Class A Warrant will be entitled to receive the number of shares of our capital stock it would have owned immediately following the action had it exercised their Class A Warrants immediately prior to the action. In case of certain consolidations or mergers of our company, or the sale of all or substantially all of its assets, each Class A Warrant will be exercisable for the right to receive the kind and amount of shares of stock or other securities or property to which the holder would have been entitled as a result of the consolidation, merger or sale had it exercised their Class A Warrants immediately prior to the transaction. Reservation of Shares We have authorized and reserved for issuance the number of shares of our common stock that will be issuable upon the exercise of all outstanding Class A Warrants. These shares of common stock, when paid for and issued, will be duly and validly issued, fully paid and non-assessable, free of preemptive rights and free from all taxes, liens, charges and security interests. Amendment We and the Warrant Agent may amend or supplement the Warrant Agreement for certain purposes without consent of the holders of the Class A Warrants. These include curing defects or inconsistencies or making changes that do not materially adversely affect the rights of any holder. Any amendment or supplement to the Warrant Agreement that has a material adverse effect on the interests of the holders of the Class A Warrants requires the written consent of the holders of a majority of the then outstanding Class A Warrants. The consent of each holder of the Class A Warrants affected is required for any amendment increasing the Class A Exercise Price or decreasing the number of shares issuable upon exercise of the Class A Warrants, except for adjustments provided for in the Class A Warrant Agreement as described above. DESCRIPTION OF NOTEHOLDER WARRANTS The Noteholder Warrants are subject to a Warrant Agreement (the "Noteholder Warrant Agreement") between us and State Street Bank and Trust Company (the "Warrant Agent"), pursuant to which we issued 723,861 common stock warrants. The following summary of the material provisions of the Noteholder Warrant Agreement is not complete; for more information, refer to the Noteholder Warrant Agreement, which is an exhibit to the registration statement of which this prospectus is part. For information on obtaining a copy of the Noteholder Warrant Agreement, see "Where You Can Find More Information." General Each Noteholder Warrant entitles the holder to purchase one share of our common stock at an exercise price of $.01 or pursuant to the Cashless Exercise Provision in the Noteholder Warrant Agreement (the "Noteholder Exercise Price"). The exercise price and the number of shares of common stock issuable upon the exercise of the Noteholder Warrants are both subject to adjustment in certain cases described below. The Noteholder Warrants are exercisable at any time on or after December 15, 1999. If they are not exercised, the Noteholder Warrants will automatically expire at 5:00 p.m. on June 30, 2007 (the "Expiration Date"). Holders of the Noteholder Warrants are entitled to purchase in the aggregate approximately 6.75% of our common stock outstanding on a fully diluted basis. The Noteholder Warrants may be exercised by surrendering to the Warrant Agent the warrant certificates, if any, with the accompanying form of election to purchase and Application for Purchase of Common Stock (or equivalent form with citizenship information). These must be properly completed and executed and delivered with payment of the Noteholder Exercise Price. Payment of the Noteholder Exercise Price may be made in the form of cash or a certified or official bank check, payable to the order of Hvide Marine Incorporated. Upon surrender of the warrant certificates and payment of the Noteholder Exercise Price, the Warrant Agent will deliver to or upon the written order of the holder stock certificates representing the number of whole shares of common stock or other property to which the holder is entitled, including any cash payment to adjust for fractional interests in shares issuable upon exercise. If less than all of the Noteholder Warrants evidenced by a Noteholder Warrant certificate are exercised, a new Noteholder Warrant certificate will be issued for the remaining number of Noteholder Warrants. We will not issue fractional shares on the exercise of Noteholder Warrants. If more than one Noteholder Warrant is presented for exercise in full at the same time by the same holder, the number of full shares issuable upon such exercise will be computed on the basis of the aggregate number of shares issuable on exercise of the Noteholder Warrants so presented. If any fraction of a share would be issuable on the exercise of any Noteholder Warrant, we will direct the transfer agent to pay cash equal to the excess of the value (as determined by our Board in good faith) of a warrant share over the Exercise Price on the day before the warrant is exercised, multiplied by the fraction. Certificates for Noteholder Warrants will be issued in registered form only, and no service charge will be made for registration for transfer or exchange upon surrender of any warrant certificate at the office of the Warrant Agent maintained for that purpose. We may require payment of a sum sufficient to cover any tax imposed in connection with registration for transfer or exchange of warrant certificates. The holders of the Noteholder Warrants do not have the rights of stockholders, including the right to vote on matters submitted to our stockholders and the right to receive cash dividends. The holders of the Noteholder Warrants are not entitled to share in our assets in the event of the liquidation, dissolution or winding up of our company's affairs. Adjustments The number of shares issuable upon the exercise of the Noteholder Warrants and the Exercise Price both are subject to adjustment in certain events. These events include if we o pay a dividend or make a distribution on our common stock in shares of any class of our capital stock, o subdivide our outstanding shares of common stock, o combine our outstanding shares of common stock into a smaller number of shares, or o issue by reclassification of our shares of common stock any shares of our capital stock. The Noteholder Exercise Price in effect and the number of shares issuable upon exercise of each Noteholder Warrant immediately prior to these actions will be adjusted so that the holder of any Noteholder Warrant will be entitled to receive the number of shares of our capital stock it would have owned immediately following the action had it exercised their Noteholder Warrants immediately prior to the action. In addition, we will adjust the number of shares issuable upon the exercise of the Noteholder Warrants and/or the Exercise Price if we issue or sell common stock or certain rights, options or warrants for the purchase of common stock or if we make certain distributions (including any evidence of indebtedness or assets). In case of certain consolidations or mergers of our company, or the sale of all or substantially all of its assets, each Noteholder Warrant will be exercisable for the right to receive the kind and amount of shares of stock or other securities or property to which the holder would have been entitled as a result of the consolidation, merger or sale had it exercised their Noteholder Warrants immediately prior to the transaction. Reservation of Shares We have authorized and reserved for issuance the number of shares of our common stock that will be issuable upon the exercise of all outstanding Noteholder Warrants. These shares of common stock, when paid for and issued, will be duly and validly issued, fully paid and non-assessable, free of preemptive rights and free from all taxes, liens, charges and security interests. Amendment We and the Warrant Agent may amend or supplement the Warrant Agreement for certain purposes without consent of the holders of the Noteholder Warrants. These include curing defects or inconsistencies or making changes that do not materially adversely affect the rights of any holder. Any amendment or supplement to the Warrant Agreement that has a material adverse effect on the interests of the holders of the Noteholder Warrants requires the written consent of the holders of a majority of the then outstanding Noteholder Warrants. The consent of each holder of the Noteholder Warrants affected is required for any amendment increasing the Exercise Price or decreasing the number of shares issuable upon exercise of the Noteholder Warrants, except for adjustments provided for in the Noteholder Warrant Agreement as described above. Registration Rights We have granted holders of our Noteholder Warrants various registration rights. If at any time we propose or are required to register common equity securities under the Securities Act, holders of our Noteholder Warrants have the right to cause us to use our reasonable best efforts, following a customary notice and response period, to register the common stock underlying their warrants with our registration statement. In addition, we have agreed to effect a registration statement on up to two occasions upon demand by warrant holders owning at least 25% of the Noteholder Warrants. SELLING SECURITY HOLDER The following table sets forth information with respect to the selling security holder whose shares and warrants are covered by this prospectus. The share information provided in the table below is based on information provided to us by the selling security holder as of December 15, 1999. We calculated beneficial ownership according to Rule 13d-3 of the Exchange Act as of this date. We may update, amend or supplement this prospectus from time to time to update the disclosure in this section. The selling security holder may from time to time offer and sell any or all of its equity securities that are registered under this prospectus. Because the selling security holder is not obligated to sell its equity securities, and because the selling security holder may also acquire our publicly traded equity securities, we cannot estimate how many equity securities the selling security holder will beneficially own after this offering.
Shares of Common Stock Beneficially Owned Before Offering Name Number Percent Entities affiliated with 6,287,517 2 63.7% 3 Loomis, Sayles & Company, L.P. 1 One Financial Center Boston, MA 02111 --------------
(1) A Loomis, Sayles & Company, L.P. ("Loomis") officer was appointed to the creditors' committee that represented creditors of the Company in conjunction with the development of the Company's plan of reorganization under chapter 11 of the U.S. bankruptcy code. The effective date of the plan was December 15, 1999. As of the effective date, Loomis is no longer a member of any creditors' committee relating to the Company and disclaims any present intent to change or influence control of the Company's management. (2) Based on the Schedule 13D/A filed jointly on December 29, 1999 by Loomis and its general partner, Loomis, Sayles & Company, Inc., Loomis holds these securities on behalf of a number of managed accounts, two of which beneficially own more than 5% of the issued and outstanding common stock of the Company. Loomis has full discretion to manage each of these accounts through advisory agreements. Includes 57,065 shares issuable upon the exercise of Loomis' Class A Warrants and 156,777 shares issuable upon exercise of Loomis' Noteholder Warrants, assuming that no anti-dilution or other adjustments are required on or before the date of exercise, that were exercisable within 60 days of the date hereof. (3) The percentages are calculated on the basis of the amount of outstanding shares of common stock as of , 1999, which is , plus shares of common stock underlying each holder's options and warrants which have been issued and are exercisable within 60 days hereof. The selling security holder received the shares of common stock and the Class A Warrants in connection with our plan of reorganization in respect of securities it held before the reorganization. In addition, the selling security holder obtained warrants to purchase 156,777 shares of common stock in connection with its acquisition of our 12 1/2% senior secured notes due 2007. In connection with our plan of reorganization, we entered into a registration rights agreement where we agreed to file a registration statement on an appropriate form under the Securities Act with respect to the equity securities offered hereby and any debt securities held by the selling security holder. We further agreed that we will use our best efforts to cause this registration statement to be declared effective and to keep it continuously effective, subject to customary limitations, so as to permit or facilitate the sale or distribution of these securities. In addition, the selling security holder may make unlimited demands on us for registration under the Securities Act and has customary "piggyback" registration rights to include its equity securities in other registration statements we file. Pursuant to this registration rights agreement, we have agreed to pay expenses in connection with the performance of the obligations to effect the shelf, demand and piggyback registrations other than underwriting fees, discounts, commissions or other similar selling expenses. We have also agreed to indemnify the selling security holder against certain liabilities, including liabilities under the Securities Act. PLAN OF DISTRIBUTION Who may sell and applicable restrictions We will not receive any of the proceeds from the sale of securities offered hereby. The selling security holder will be offering and selling all securities offered and sold under this prospectus. Alternatively, the selling security holder may from time to time offer the securities through brokers, dealers or agents that may receive compensation in the form of discounts, concessions or commissions from the selling security holder and/or the purchasers of the securities for whom they may act as agent. In effecting sales, broker-dealers that are engaged by the selling security holder may arrange for other broker-dealers to participate. The selling security holder and any brokers, dealers or agents who participate in the distribution of the securities may be deemed to be underwriters, and any profits on the sale of the securities by them and any discounts, commissions or concessions received by any broker, dealer or agent may be deemed to be underwriting discounts and commissions under the Securities Act. To the extent the selling security holder may be deemed to be an underwriter, it may be subject to statutory liabilities, including, but not limited to, Sections 11, 12 and 17 of the Securities Act and Rule 10b-5 under the Exchange Act. Manner of sales The selling security holder will act independently of us in making decisions with respect to the timing, manner and size of each sale. Sales of our equity securities may be made over the over-the-counter market. The securities may be sold at then prevailing market prices, at prices related to prevailing market prices or at negotiated prices. The selling security holder may also resell all or a portion of the securities in open market transactions in reliance upon Rule 144 under the Securities Act, provided that the securities meet the criteria and conform to the requirements of this rule. The selling security holder may decide not to sell any of the securities offered under this prospectus, and it may transfer, devise or gift these securities by other means. The securities may be sold according to one or more of the following methods: o a block trade in which the broker or dealer so engaged will attempt to sell the securities as agent but may position and resell a portion of the block as principal to facilitate the transaction; o purchases by a broker or dealer as principal and resale by the broker or dealer for its account; o ordinary brokerage transactions and transactions in which the broker solicits purchasers; o an exchange distribution under the rules of the exchange; o transactions in the over-the-counter market; o face-to-face transactions between sellers and purchasers without a broker-dealer; o by writing options; o through underwriters or dealers who may receive compensation in the form of underwriting discounts, concessions or commissions; o the pledge of the securities as security for any loan or obligation; and o a combination of any of the above transactions. Some persons participating in this offering may engage in transactions that stabilize, maintain or otherwise affect the price of the securities, including the entry of stabilizing bids or syndicate covering transactions or the imposition of penalty bids. The selling security holder and any other person participating in a distribution will be subject to applicable provisions of the Exchange Act and the rules and regulations thereunder including Regulation M. This regulation may limit the timing of purchases and sales of any of the securities by the selling security holder and any other person. The anti-manipulation rules under the Exchange Act may apply to sales of securities in the market and to the activities of the selling security holder and its affiliates. Furthermore, Regulation M of the Exchange Act may restrict the ability of any person engaged in the distribution of the securities to engage in market-making activities with respect to the particular securities being distributed for a period of up to five business days before the distribution. All of the foregoing may affect the marketability of the securities and the ability of any person or entity to engage in market-making activities with respect to the securities. Hedging and other transactions with broker-dealers In connection with distributions of the securities, the selling security holder may enter into hedging transactions with broker-dealers. In connection with these transactions, broker-dealers may engage in short sales of the registered securities in the course of hedging the positions they assume with selling security holder. The selling security holder may also sell securities short and redeliver the securities to close out short positions. The selling security holder may also enter into option or other transactions with broker-dealers which require the delivery to the broker-dealer of the registered securities. The broker-dealer may then resell or transfer these securities under this prospectus. The selling security holder may also loan or pledge the registered securities to a broker-dealer and the broker-dealer may sell the securities so loaned or, upon a default, the broker-dealer may effect sales of the pledged securities under this prospectus. Prospectus delivery Because the selling security holder may be deemed to be an underwriter within the meaning of Section 2(11) of the Securities Act, it will be subject to the prospectus delivery requirements of the Securities Act. At any time a particular offer of the securities is made, a revised prospectus or prospectus supplement, if required, will be distributed which will set forth: o the name of the selling security holder and of any participating underwriters, broker-dealers or agents; o the aggregate amount and type of securities being offered; o the price at which the securities were sold and other material terms of the offering; o any discounts, commissions, concessions and other items constituting compensation from the selling security holder and any discounts, commissions or concessions allowed or reallowed or paid to dealers; and o that the participating broker-dealers did not conduct any investigation to verify the information in this prospectus or incorporated in this prospectus by reference. The prospectus supplement or a post-effective amendment will be filed with the SEC to reflect the disclosure of additional information with respect to the distribution of the securities. Expenses associated with registration We have agreed to pay the expenses of registering the securities under the Securities Act, including registration and filing fees, printing and duplication expenses, administrative expenses and legal and accounting fees. The selling security holder will pay its own brokerage fees, if any. Suspension of this offering We may suspend the use of this prospectus if we learn of any event that causes this prospectus to include an untrue statement of a material fact or omit to state a material fact required to be stated in the prospectus or necessary to make the statements in the prospectus not misleading in the light of the circumstances then existing. If this type of event occurs, a prospectus supplement or post-effective amendment, if required, will be distributed to the selling security holder. Indemnification Pursuant to a registration rights agreement we entered into with the selling security holder in connection with the initial offer and sale of the securities by the selling security holder, we have agreed to indemnify the selling security holder against certain liabilities, including liabilities under the Securities Act. EXPERTS Ernst & Young, LLP, independent auditors, have audited our consolidated financial statements included in our Annual Report on Form 10-K for the year ended December 31, 1999, as set forth in their report, which is incorporated by reference in this prospectus and elsewhere in the registration statement. Our financial statements are incorporated by reference in reliance on Ernst & Young LLP's report, given on their authority as experts in accounting and auditing. WHERE YOU CAN FIND MORE INFORMATION We file with the SEC annual, quarterly and current reports, proxy statements and other information required by the Securities Exchange Act of 1934, as amended. You may read and copy any document we file at the SEC's public reference rooms located at Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549, at Northwestern Atrium Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661, and at Seven World Trade Center, Suite 1300, New York, New York 10048. Please call the SEC at 1-800-SEC-0330 for further information on the public reference rooms. Copies of such material can be obtained by mail from the Public Reference Section of the SEC at 450 Fifth Street, N.W., Judiciary Plaza, Washington, D.C. 20549 at prescribed rates. Our filings with the SEC are also available to the public on the SEC's Internet web site at http://www.sec.gov. DOCUMENTS INCORPORATED BY REFERENCE The SEC allows us to incorporate by reference the information we file with it, which means that we can disclose important information to you by referring you to those documents. The information incorporated by reference is considered to be part of this prospectus, and information that we file with the SEC later will automatically update and supersede this information. The following documents filed by us and any future filings made by us with the SEC under sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act prior to the termination of the offering are incorporated by reference in this prospectus: o our annual report on Form 10-K for the latest fiscal year for which such a report has been filed, and o our quarterly reports on Form 10-Q and current reports on Form 8-K filed since the end of the latest fiscal year for which we have filed an annual report on Form 10-K. You may request a copy of these and any future filings, at no cost, by writing or telephoning us at: Hvide Marine Incorporated 2200 Eller Drive P.O. Box 13038 Ft. Lauderdale, Florida 33316 (954) 524-4200 Attention: Investor Relations PART II INFORMATION NOT REQUIRED IN THE PROSPECTUS Item 14. Other expenses of issuance and distribution. The following table sets forth an estimate of the expenses that will be incurred by the Registrant in connection with the distribution of the securities being registered hereby:
SEC registration fee..........................................$19,670 Legal fees and expenses.......................................$ Accounting fees and expenses..................................$ Miscellaneous.................................................$ ------------ Total.........................................................$ -------- --------
Item 15. Indemnification of directors and officers. Generally, Section 145 of the GCL permits a corporation to indemnify certain persons made a party to an action, by reason of the fact that such person 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 or enterprise if the person acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the corporation. In the case of an action by or in the right of the corporation, no indemnification may be made in respect of any matter as to which such person is adjudged liable to the corporation unless the Delaware Court of Chancery or the court in which such action was brought determines that despite the adjudication of liability such person is fairly and reasonably entitled to indemnity for such expenses. To the extent such person has been successful in the defense of any matter, such person shall be indemnified against expenses actually and reasonably incurred by him or her. The registrant's certificate of incorporation provides that it shall, to the fullest extent permitted by the GCL, indemnify each officer, director, employee, or agent. Section 102(b)(7) of the GCL enables a Delaware corporation to include a provision in its certificate of incorporation limiting a director's liability to the corporation or its stockholders for monetary damages for breaches of fiduciary duty as a director. The registrant's certificate of incorporation provides that its directors shall not be liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty, except for liability for breach of duty of loyalty, for acts or omissions not in good faith involving intentional misconduct or a knowing violation of law, for liability under Section 174 of the GCL, or for any transaction from which the director derived an improper personal benefit.
Item 16. Exhibits. Exhibit No. Description - -------- ----------- 2.1* Debtor's First Amended Joint Plan of Reorganization, dated November 1, 1999, and related Disclosure Statement, filed with the U.S. Bankruptcy Court for the District of Delaware (incorporated by reference to Exhibits 1 and 2 to the Schedule 13D/A filed with the Commission on December 29, 1999 by Loomis, Sayles & Company, L.P. (Commission File No. 000-28732)). 3.1(a) Certificate of Incorporation of the Registrant 3.1(b)+ Certificate of Merger of the Registrant 3.2 By-laws of the Registrant 4.1+ Form of Common Stock Certificate of the Registrant 4.2 Form of Warrant Certificate of the Registrant 4.3* Indenture for the 12 1/2% Senior Secured Notes due 2007, dated December 15, 1999 among Hvide Marine Incorporated as the Issuer, the Subsidiary Guarantors named therein, State Street Bank and Trust Company as the Trustee and Bankers Trust Company as the Collateral Agent (incorporated by reference to Exhibit 4.1 to the Registrant's Form 8-K filed with the Commission on December 27, 1999 (Commission File No. 000-28732)). 4.4* Warrant Agreement, dated December 15, 1999, between Hvide Marine Incorporated and State Street Bank and Trust Company as Warrant Agent (incorporated by reference to Exhibit 4.2 to the Registrant's Form 8-K filed with the Commission on December 27, 1999 (Commission File No. 000-28732)). 4.5 Class A Warrant Agreement, dated as of December 15, 1999 by and between Hvide Marine Incorporated and State Street Bank and Trust Company. 5.1 Opinion of Dyer Ellis & Joseph. 10.1* Credit Agreement, dated December 15, 1999, among Hvide Marine Incorporated, Bankers Trust Company as Administrative Agent, Deutsche Bank Securities Inc. as Lead Arranger and Book Manager, Meespierson Capital Corp. as Syndication Agent and Co-Arranger and the various persons from time to time parties to the agreement as Lenders (incorporated by reference to Exhibit 10.1 to the Registrant's Form 8-K filed with the Commission on December 27, 1999 (Commission File No. 000-28732)). 10.2* Common Stock Registration Rights Agreement, dated December 15, 1999, among Hvide Marine Incorporated, Bankers Trust Corporation and Great American Life Insurance Company, Great American Insurance Company, New Energy Corp., American Empire Surplus Lines Insurance Company, Worldwide Insurance Company and American National Fire Insurance Company as Purchasers (incorporated by reference to Exhibit 10.2 to the Registrant's Form 8-K filed with the Commission on December 27, 1999 (Commission File No. 000-28732)). 10.3* Registration Rights Agreement for the 12 1/2% Senior Secured Notes due 2007, dated December 15, 1999, among Hvide Marine Incorporated, Bankers Trust Corporation and Great American Life Insurance Company, Great American Insurance Company, New Energy Corp., American Empire Surplus Lines Insurance Company, Worldwide Insurance Company and American National Fire Insurance Company as Purchasers (incorporated by reference to Exhibit 10.3 to the Registrant's Form 8-K filed with the Commission on December 27, 1999 (Commission File No. 000-28732)). 10.4* Registration Rights Agreement by and between Loomis, Sayles & Company, L.P. and Hvide Marine Incorporated, dated as of December 15, 1999 (incorporated by reference to Exhibit 4 to the Schedule 13D/A filed with the Commission on December 29, 1999 by Loomis, Sayles & Company, L.P. (Commission File No. 000-28732)). 23.1+ Consent of Ernst & Young LLP. 23.2+ Consent of Dyer Ellis & Joseph (included in their opinion filed as Exhibit 5.1). 24 Powers of Attorney (contained in the signature pages hereto). 27* Financial Data Schedule. 99.1* Order, dated December 9, 1999, of the United States Bankruptcy Court for the District of Delaware, confirming the First Amended Joint Plan of Reorganization in In re: Hvide Marine Incorporated, et al., Case No. 99-3024 (PJW), including the Supplement to such Plan (incorporated by reference to Exhibit 99.1 to the Registrant's Form 8-K filed with the Commission on December 27, 1999 (Commission File No. 000-28732)). - ----------------- * Incorporated herein by reference. + To be filed.
Item 17. Undertakings. 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 provisions in Item 15 above, or otherwise, the registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in such act 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 or 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 of whether such indemnification by it is against public policy as expressed in such act and will be governed by the final adjudication of such issue. 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 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to 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. 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; (a) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; (b) 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. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement; and (c) 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 (1)(a) and (1)(b) above do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission 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 Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that Hvide Marine Incorporated, a corporation organized under the laws of the State of Delaware (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-3 under the Securities Act of 1933, any and all amendments to and documents in support of or supplemental to said registration statement by the Corporation; and the Corporation and each said person hereby grant to said attorney full power and authority to do and perform each and every act and thing whatsoever as said attorney 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 amendments to and documents in support of or supplemental to said registration statement and any and all amendments thereto. SIGNATURES Pursuant to the requirements of Rule 402 of the Securities Act of 1933, as amended, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized. HVIDE MARINE INCORPORATED By: /s/ JEAN FITZGERALD Jean Fitzgerald Chief Executive Officer Pursuant to the requirements of the Securities Act of 1933, as amended, this report has been signed by the following persons in the capacities and on the dates indicated.
Signature Title Date /s/ JEAN FITZGERALD Chairman of the Board, February 14, 2000 - -------------------------------------- Jean Fitzgerald Chief Executive Officer and Director (principal executive officer) /s/ EUGENE F. SWEENEY President, Chief Operating February 14, 2000 - -------------------------------------- Eugene F. Sweeney Officer and Director /s/ WALTER S. ZORKERS Executive Vice President, February 14, 2000 - -------------------------------------- Walter S. Zorkers Chief Financial Officer, and Director (principal financial officer) /s/ JOHN J. KRUMENACKER Controller (principal accounting February 14, 2000 - -------------------------------------- John J. Krumenacker officer) /s/ JAMES J. GAFFNEY Director February 14, 2000 - -------------------------------------- James J. Gaffney /s/ JOHN F. McGOVERN Director February 14, 2000 - -------------------------------------- John F. McGovern Director February , 2000 - -------------------------------------- Thomas P. Moore, Jr. /s/ DONALD R. SHEPHERD Director February 14, 2000 - -------------------------------------- Donald R. Shepherd
EX-3.I(A) 2 CERTIFICATE OF INCORPORATION CERTIFICATE OF INCORPORATION OF HVIDE MARINE INCORPORATED Incorporated under the Laws of the State of Delaware * * * * * I, the undersigned, for the purpose of incorporating and organizing a corporation under the General Corporation Law of the State of Delaware, do hereby execute this Certificate of Incorporation and do hereby certify as follows: ARTICLE I The name of the corporation (the "Corporation") is: Hvide Marine Incorporated ARTICLE II The address of the Corporation's registered office in the State of Delaware is The Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County of New Castle. The name of the Corporation's registered agent at such address is The Corporation Trust Company. ARTICLE III The purpose of the Corporation shall be to engage in any lawful act or activity for which corporations may be organized and incorporated under the General Corporation Law of the State of Delaware (the "GCL"). ARTICLE IV (a) The total number of shares of stock which the Corporation shall have authority to issue is Twenty-five Million (25,000,000), consisting of Five Million (5,000,000) shares of Preferred Stock, without par value (the "Preferred Stock"), and Twenty Million (20,000,000) shares of Common Stock, par value $.01 per share (the "Common Stock"). (b) The Preferred Stock may be issued from time to time in one or more series. The Board of Directors is hereby authorized to provide for the issuance of shares of Preferred Stock in series and, by filing a certificate pursuant to the applicable law of the State of Delaware ("Preferred Stock Designation"), to establish from time to time the number of shares to be included in each such series, and to fix the designation, powers, preferences and rights of the shares of each such series and the qualifications, limitations and restrictions thereof. The authority of the Board of Directors with respect to each series shall include, but not be limited to, determination of the following: (1) The designation of the series, which may be by distinguishing number, letter or title. (2) The number of shares of the series, which number the Board of Directors may thereafter (except where otherwise provided in the Preferred Stock Designation) increase or decrease (but not below the number of shares thereof then outstanding). (3) Whether dividends, if any, shall be cumulative or noncumulative and the dividend rate of the series. (4) The dates on which dividends, if any, shall be payable. (5) The redemption rights and price or prices, if any, for shares of the series. (6) The terms and amount of any sinking fund provided for the purchase or redemption of shares of the series. (7) The amounts payable on, and the preferences, if any, of, shares of the series in the event of any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Corporation. (8) Whether the shares of the series shall be convertible into shares of any other class or series, or any other security, of the Corporation or any other corporation, and, if so, the specification of such other class or series of such other security, the conversion price or prices or rate or rates, any adjustments thereof, the date or dates at which such shares shall be convertible and all other terms and conditions upon which such conversion may be made. (9) Restrictions on the issuance of shares of the same series or of any other class or series. (10) The voting rights of the holders of shares of the series. The Corporation shall be prohibited from issuing any series of Preferred Stock without voting rights; provided, however, that any series of Preferred Stock having the right, voting separately as a series, to elect any directors of the Corporation if and when dividends payable on such series shall have been in arrears and unpaid for a specified period of time shall not be deemed to have voting rights. (c) The Common Stock shall be subject to the express terms of the Preferred Stock and any series thereof. Each share of Common Stock shall be equal to each other share of Common Stock. The holders of shares of Common Stock shall be entitled to one vote for each such share upon all questions presented to the stockholders. Except as may be provided in this Certificate of Incorporation or in a Preferred Stock Designation, or as may be required by law, the Common Stock shall have the exclusive right to vote for the election of directors and for all other purposes, and holders of Preferred Stock shall not be entitled to receive notice of any meeting of stockholders at which they are not entitled to vote. (d) The Corporation shall be entitled to treat the person in whose name any share of its stock is registered as the owner thereof for all purposes and shall not be bound to recognize any equitable or other claim to, or interest in, such share on the part of any other person, whether or not the Corporation shall have notice thereof, except as expressly provided by applicable law. ARTICLE V (a) For purposes of this Article V, the following terms shall have the meanings specified below: (1) A Person shall be deemed to be the "Beneficial Owner" of, or to "Beneficially Own," shares of Common Stock to the extent such Person would be deemed to be the beneficial owner thereof pursuant to Rule 13d-3 promulgated by the Securities and Exchange Commission under the Securities Exchange Act of 1934, as such rule may be amended from time to time. (2) "Citizen " shall mean, at all tiers of ownership and in both form and substance at each tier of ownership: (A) any individual who is a citizen of the United States, by birth, naturalization or as otherwise authorized by law; (B) any corporation (i) that is organized under the laws of the United States, or of a state of the United States or a political subdivision thereof, Guam, Puerto Rico, the Virgin Islands, American Samoa, the District of Columbia, the Northern Mariana Islands, or any other territory or possession of the United States (each a "State"), (ii) of which title to not less than 75% of each class or series of its capital stock is Beneficially Owned by and vested in Persons who are Citizens, as defined herein, free from any trust or fiduciary obligation in favor of Non-Citizens, as defined herein, (iii) of which not less than 75% of the voting power of the then outstanding shares of capital stock of such corporation entitled to vote generally in the election of directors of such corporation is vested in Citizens, free from any contract or understanding through which it is arranged that such voting power may be exercised directly or indirectly on behalf of Non-Citizens, (iv) of which there are no other means by which control is conferred upon or permitted to be exercised by Non-Citizens, (v) whose president, chief executive officer (by whatever title), chairman of the board of directors and all officers authorized to act in the absence or disability of such Persons are Citizens, and (vi) of which more than 50% of that number of its directors necessary to constitute a quorum are Citizens; (C) any partnership (i) that is organized under the laws of the United States or of a State, (ii) all general partners of which are Citizens, and (iii) of which not less than a 75% interest is Beneficially Owned and controlled by, and vested in, Persons who are Citizens, free and clear of any trust or fiduciary obligation in favor of any Non-Citizens; (D) any association (i) that is organized under the laws of the United States or of a State, (ii) of which 100% of the members are Citizens, (iii) whose president or other chief executive officer (or equivalent position), chairman of the board of directors (or equivalent committee or body) and all Persons authorized to act in the absence or disability of such Persons are Citizens, (iv) of which not less than 75% of the voting power of such association entitled to vote generally in the election of directors (or equivalent Persons) is vested in Citizens, free and clear of any trust or fiduciary obligation in favor of any Non-Citizens, and (v) of which more than 50% of that number of its directors (or equivalent Persons) necessary to constitute a quorum are Citizens; (E) any limited liability company (i) that is organized under the laws of the United States or of a State, (ii) of which 75% of the members are Citizens, and the remaining members are Persons meeting the requirements of 46 U.S.C. ss.12102(a), (iii) whose president and/or chief executive officer (or equivalent positions), chairman of the board of directors (or equivalent committee or body) and all Persons authorized to act in the absence or disability of such Persons are Citizens, (iv) of which not less than 75% of the voting power of such company entitled to vote generally in the election of directors (or equivalent Persons) is vested in Citizens, free and clear of any trust or fiduciary obligation in favor of any Non-Citizens, and (v) of which more than 50% of that number of its directors (or equivalent Persons) necessary to constitute a quorum are Citizens; (F) any joint venture (if not an association, corporation, partnership or limited liability company) (i) that is organized under the laws of the United States or of a State, and (ii) of which 100% of the members are, or 100% of the equity is Beneficially Owned by, Citizens, free and clear of any trust or fiduciary obligation in favor of any Non-Citizens; and (G) any trust (i) that is domiciled in and existing under the laws of the United States or a State, (ii) all of the trustees of which are Citizens, (iii) of which not less than 75% interest is held for the benefit of Citizens, free and clear of any trust or fiduciary obligation in favor of any Non-Citizens, and (iv) each beneficiary of which with an enforceable interest in the trust is a Citizen. (3) "Fair Market Value" shall mean the average Market Price of one share of capital stock for the 30 consecutive trading days immediately preceding the date of determination. The "Market Price" for a particular day shall mean: (A) the last reported sales price, regular way, or, in case no sale takes place on such day, the average of the reported closing bid and asked prices, regular way, as reported on the consolidated reporting system of the principal national securities exchange (then registered as such pursuant to Section 6 of the Securities Exchange Act of 1934, as amended) on which such capital stock is then listed or admitted to unlisted trading privileges; or (B) if such capital stock is not then listed or admitted to unlisted trading privileges on any national securities exchange, as such prices referred to in clause (A) above are included for quotation through the National Association of Securities Dealers, Inc. Automated Quotation ("NASDAQ") National Market System; or (C) if such capital stock is not then listed or admitted to unlisted trading privileges on any national securities exchange, and is not then included for quotation through the NASDAQ National Market System, (i) the average of the closing bid and asked prices on such day in the over-the-counter market as reported by NASDAQ, or (ii) if bid and asked prices for such capital stock on such day shall not have been reported on NASDAQ, the average of the bid and asked prices for such day as furnished by any NASDAQ member firm regularly making a market in and for the capital stock. If such capital stock ceases to be publicly traded, the Fair Market Value thereof shall mean the fair value of one share of such capital stock determined jointly by the Corporation and the holders of a majority of the securities being affected by such determination. If such parties are unable to reach agreement within a reasonable period of time, such fair value shall be determined by an independent appraiser jointly selected by the Corporation and the holders of such capital stock being evaluated for redemption, whose determination shall be final and binding and whose fees shall be paid by the Corporation. (4) "Non-Citizen " shall mean any Person other than a Citizen. (5) "Permitted Percentage" shall mean 24.99% of the shares of any class or series of capital stock from time to time issued and outstanding. (6) "Person" shall mean any individual, corporation, trust, partnership, joint venture, association, joint stock company, unincorporated organization, government or any agency or political subdivision thereof or any other entity. (b) It is the policy of the Corporation that Non-Citizens should Beneficially Own, individually or in the aggregate, no more than the Permitted Percentage of each class or series of the capital stock of the Corporation. If at any time Non-Citizens, individually or in the aggregate, become the Beneficial Owners of more than the Permitted Percentage of any class or series of capital stock, then the Corporation shall have the power to take the actions prescribed in Sections (c), (d) and (e) of this Article V. The provisions of this Article V are intended to assure that the Corporation remains in continuous compliance with the citizenship requirements of the Merchant Marine Act of 1936, as amended, the Shipping Act, 1916, as amended (collectively, the "Maritime Laws") and the regulations promulgated thereunder. Any amendments to the Maritime Laws or the regulations relating to the citizenship of vessel owners are deemed to be incorporated herein by reference. The Board of Directors (or any duly constituted committee thereof) is specifically authorized to make all such reasonable determinations in accordance with applicable law and this Certificate of Incorporation to implement the provisions of this Article V. (c) To implement the policy set forth in Section (b) of this Article V, the Corporation shall institute a Dual Stock Certificate System such that (1) each certificate representing shares of capital stock that are Beneficially Owned by a Citizen shall be marked "Citizen" and each certificate representing shares of capital stock that are Beneficially Owned by a Non-Citizen shall be marked "Non-Citizen", but with all such certificates to be identical in all other respects and to comply with all provisions of the laws of the State of Delaware; (2) to the extent necessary to enable the Corporation to submit any proof of citizenship required by law or by contract with the United States government (or any agency thereof), the Corporation may require the record holders and the Beneficial Owners of such capital stock to confirm their citizenship status from time to time, and dividends payable with respect to stock held by such record holder or owned by such Beneficial Owner may, in the discretion of the Board of Directors, be withheld until confirmation of such citizenship status is received; and (3) the stock transfer records of the Corporation shall be maintained in such manner as to enable the percentage of capital stock that is Beneficially Owned by Citizens and by Non-Citizens to be confirmed. The Board of Directors is authorized to take such other ministerial actions or make such interpretations of this Certificate of Incorporation as it may deem necessary or advisable in order to implement the policy set forth in Section (b) of this Article V. Nothing contained in this Certificate of Incorporation shall be construed as requiring the Corporation to issue physical certificates in connection with the issuance of shares of capital stock held through The Depository Trust Company or other depository if the Board of Directors determines that The Depository Trust Company or such other depository has established procedures that will allow the Corporation to determine the citizenship of the Beneficial Owner of shares of capital stock held through them. The Board of Directors is authorized to take such ministerial actions or make such interpretations of this Certificate of Incorporation as it may deem necessary or advisable in order to facilitate the trading of capital stock through The Depository Trust Company or other depository as the Board of Directors may determine. (d) Any transfer, or attempted transfer, of any shares of capital stock, the effect of which would be to cause one or more Non-Citizens to Beneficially Own capital stock in excess of the Permitted Percentage, shall be ineffective as against the Corporation, and neither the Corporation nor its transfer agent shall register such transfer or purported transfer on the stock transfer records of the Corporation and neither the Corporation nor its transfer agent shall be required to recognize the transferee or purported transferee thereof as a stockholder of the Corporation for any purpose whatsoever except to the extent necessary to effect any remedy available to the Corporation under this Article V. A citizenship certificate shall be required from all transferees (and from any recipient upon original issuance) of stock certificates representing shares of capital stock of the Corporation and, if such transferee (or recipient) is acting as a fiduciary or nominee for a Beneficial Owner, with respect to such Beneficial Owner, and registration of transfer (or original issuance) shall be denied upon refusal to furnish such certificate. (e) If on any date (including any record date) the number of shares of a class or series of capital stock Beneficially Owned by Non-Citizens is in excess of the Permitted Percentage (such shares herein referred to as the "Excess Shares"), the Corporation shall determine those shares Beneficially Owned by Non-Citizens that constitute such Excess Shares. The determination of those shares that constitute Excess Shares shall be made by reference to the date or dates on which such shares were acquired by Non-Citizens, starting with the most recent acquisition of such shares by a Non-Citizen and including, in reverse chronological order of acquisition, all other acquisitions of such shares by Non-Citizens from and after the acquisition of such shares by a Non-Citizen that first caused the Permitted Percentage to be exceeded. For the purposes of this Article V, Excess Shares that result from a determination that a stockholder is no longer a Citizen will be deemed to have been acquired as of the date that it is determined that such stockholder is not a Citizen. The determination of the Corporation as to those shares that constitute the Excess Shares shall be conclusive. Shares deemed to constitute Excess Shares shall (so long as such excess exists) not be accorded any voting rights and shall not be deemed to be outstanding for purposes of determining the vote required on any matter properly brought before the stockholders of the Corporation for a vote thereon. The Corporation shall (so long as such excess exists) withhold the payment of dividends and the sharing in any other distribution (upon liquidation or otherwise) in respect of the Excess Shares. At such time as the Permitted Percentage is no longer exceeded, full voting rights shall be restored to any shares previously deemed to be Excess Shares and any dividend or distribution with respect thereto that has been withheld shall be due and paid solely to the record holders of such shares at the time the Permitted Percentage is no longer exceeded. (f) Unless such redemption is not permitted under the GCL or under other provisions of applicable law, Excess Shares shall be subject to redemption by the Corporation (by action of the Board of Directors, in its discretion) solely to the extent necessary to reduce the aggregate number of shares of such capital stock owned by Non-Citizens to the Permitted Percentage. The terms and conditions of such redemption shall be as follows: (1) the per share redemption price (the "Transfer Price") to be paid for the Excess Shares shall be the sum of (A) the Fair Market Value of such shares of capital stock plus (B) an amount equal to the amount of any dividend or any other distribution (upon liquidation or otherwise) declared in respect of such shares prior to the date on which such shares are called for redemption and which amount has been withheld by the Corporation pursuant to Section (e) of this Article V; (2) the Transfer Price shall be paid in cash (by bank or cashier's check); (3) the Excess Shares to be redeemed shall be selected in the same manner as provided in Section (e) of this Article V and shall not exceed the number necessary to reduce the percentage of shares of each class and series of capital stock owned by Non-Citizens, in the aggregate, to the Permitted Percentage for such class or series; provided that the Corporation may adjust upward to the nearest whole share the number of shares to be redeemed so as not to be required to redeem or issue fractional shares; (4) written notice of the date of redemption (the "Transfer Date"), together with a letter of transmittal to accompany certificates representing shares of stock that are surrendered for redemption (if any), shall be given either by hand delivery or by overnight courier service or by first-class mail, postage prepaid, to each holder of record of the selected shares to be redeemed, at such holder's last known address as the same appears on the stock register of the Corporation (unless such notice is waived in writing by any such holders) (the "Transfer Notice"); (5) the Transfer Date (for purposes of determining right, title and interest in and to shares of capital stock being selected for redemption) shall be the later of (A) the date specified in the Transfer Notice furnished to record holders (which shall not be earlier than the date of such notice) or (B) the date on which the funds necessary to effect the redemption have been irrevocably deposited in trust for the benefit of such record holders; (6) each Transfer Notice shall specify (A) the Transfer Date (as determined pursuant to Subsection (5) of this Section (f)), (B) the number and the class or series of shares of capital stock to be redeemed from such holder (and, to the extent such shares are certificated, the certificate number(s) representing such shares), (C) the Transfer Price and the manner of payment thereof, (D) the place where certificates for such shares (if such shares are certificated) are to be surrendered for cancellation against the simultaneous payment of the Transfer Price, (E) any instructions as to the endorsement or assignment for transfer for such certificates (if any) and the completion of the accompanying letter of transmittal, and (F) the fact that all right, title and interest in respect of the shares so selected for redemption (including, without limitation, voting and dividend rights) shall cease and terminate on the Transfer Date, except for the right to receive the Transfer Price; (7) in the case of a redemption, from and after the Transfer Date, all right, title and interest in respect of the shares selected for redemption (including, without limitation, voting and dividend rights) shall cease and terminate, such shares shall no longer be deemed to be outstanding (and may either be retired or held by the Corporation as treasury stock) and the owners of such shares shall thereafter be entitled only to receive the Transfer Price; and (8) upon surrender of the certificates (if any) for any shares so redeemed in accordance with the requirements of the Transfer Notice and accompanying letter of transmittal (and otherwise in proper form for transfer as specified in the Transfer Notice), the owner of such shares shall be entitled to payment of the Transfer Price. In case fewer than all the shares represented by any such certificate are redeemed, a new certificate (or certificates), to the extent such shares were certificated, shall be issued representing the shares not redeemed, without cost to the holder. (g) In determining the citizenship of the Beneficial Owners or their transferees of its capital stock, the Corporation may rely on the stock transfer records of the Corporation and the citizenship certificates given by Beneficial Owners or their transferees or any recipients (in the case of original issuance) (in each case whether such certificates have been given on their own behalf or on behalf of others) to prove the citizenship of such Beneficial Owners, transferees or recipients. The determination of the citizenship of Beneficial Owners and their transferees may also be subject to proof in such other way or ways as the Corporation may deem reasonable. The Corporation may at any time reasonably require proof, in addition to the citizenship certificates, of the Beneficial Owner or proposed transferee of capital stock, and the payment of dividends may be withheld, and any application for transfer of ownership on the stock transfer records of the Corporation may be refused, until such additional proof is submitted. (h) Each provision of this Article V is intended to be severable from every other provision. If any one or more of the provisions contained in this Article V is held to be invalid, illegal or unenforceable, the validity, legality or enforceability of any other provision of this Article V shall not be affected, and this Article V shall be construed as if the provisions held to be invalid, illegal or unenforceable had never been contained herein. ARTICLE VI The Board of Directors is hereby authorized to create and issue, whether or not in connection with the issuance and sale of any of its stock or other securities or property, rights entitling the holders thereof to purchase from the Corporation shares of stock or other securities of the Corporation or any other corporation. The times at which and the terms upon which such rights are to be issued will be determined by the Board of Directors and set forth in the contracts or instruments that evidence such rights. The authority of the Board of Directors with respect to such rights shall include, but not be limited to, determination of the following: (a) The initial purchase price per share or other unit of the stock or other securities or property to be purchased upon exercise of such rights. (b) Provisions relating to the times at which and the circumstances under which such rights may be exercised or sold or otherwise transferred, either together with or separately from, any other stock or other securities of the Corporation. (c) Provisions which adjust the number or exercise price of such rights or amount or nature of the stock or other securities or property receivable upon exercise of such rights in the event of a combination, split or recapitalization of any stock of the Corporation, a change in ownership of the Corporation's stock or other securities or a reorganization, merger, consolidation, sale of assets or other occurrence relating to the Corporation or any stock of the Corporation, and provisions restricting the ability of the Corporation to enter into any such transaction absent an assumption by the other party or parties thereto of the obligations of the Corporation under such rights. (d) Provisions which deny the holder of a specified percentage of the outstanding stock or other securities of the Corporation the right to exercise such rights and/or cause the rights held by such holder to become void. (e) Provisions which permit the Corporation to redeem or exchange such rights. (f) The appointment of a rights agent with respect to such rights. ARTICLE VII In furtherance of, and not in limitation of, the powers conferred by law, the Board of Directors is expressly authorized and empowered: (a) to adopt, amend or repeal the By-laws of the Corporation; provided, however, that the By-laws adopted by the Board of Directors under the powers hereby conferred may be amended or repealed by the Board of Directors or by the stockholders having voting power with respect thereto, provided further that in the case of amendments by stockholders, the affirmative vote of the holders of a majority of the voting power of the then outstanding Voting Stock (as defined below), voting together as a single class, shall be required to alter, amend or repeal any provision of the By-laws; and (b) from time to time to determine whether and to what extent, and at what times and places, and under what conditions and regulations, the accounts and books of the Corporation, or any of them, shall be open to inspection of stockholders; and, except as so determined or as expressly provided in this Certificate of Incorporation or in any Preferred Stock Designation, no stockholder shall have any right to inspect any account, book or document of the Corporation other than such rights as may be conferred by applicable law. The Corporation may in its By-laws confer powers upon the Board of Directors in addition to the foregoing and in addition to the powers and authorities expressly conferred upon the Board of Directors by applicable law. Notwithstanding anything contained in this Certificate of Incorporation to the contrary, the affirmative vote of the holders of a majority of the voting power of the then outstanding Voting Stock, voting together as a single class, shall be required to amend, repeal or adopt any provision inconsistent with paragraph (a) of this Article VII. For the purposes of this Certificate of Incorporation, "Voting Stock" shall mean the outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors. ARTICLE VIII Subject to the rights of the holders of any series of Preferred Stock or any other series or class of stock as set forth in this Certificate of Incorporation to elect additional directors under specific circumstances, and except as otherwise provided under applicable law, any action required or permitted to be taken by the stockholders of the Corporation may be effected at a duly called annual or special meeting of stockholders of the Corporation or may be effected by the written consent, in lieu of a meeting of stockholders, of the holders of a majority of the voting power of the then outstanding Voting Stock. Notwithstanding anything contained in this Certificate of Incorporation to the contrary, the affirmative vote of a majority of the voting power of the then outstanding Voting Stock, voting together as a single class, shall be required to amend, repeal or adopt any provision inconsistent with this Article VIII. ARTICLE IX Subject to the rights of the holders of any series of Preferred Stock or any other series or class of stock as set forth in this Certificate of Incorporation to elect additional directors under specified circumstances, the number of directors of the Corporation shall be fixed, and may be increased or decreased from time to time, in such manner as may be prescribed by the By-laws of the Corporation. The total number of directors who are not citizens of the United States shall at no time exceed a minority of the number of directors necessary to constitute a quorum for the transaction of business at any meeting of the Board of Directors, as provided in the By-laws of the Corporation. Unless and except to the extent that the By-laws of the Corporation shall so require, the election of directors of the Corporation need not be by written ballot. The directors, other than those who may be elected by the holders of any series of Preferred Stock or any other series or class of stock as set forth in this Certificate of Incorporation, shall be divided into three classes, as nearly equal in number as possible. One class of directors shall be initially elected for a term expiring at the annual meeting of stockholders to be held in 2000, another class shall be initially elected for a term expiring at the annual meeting of stockholders to be held in 2001, and another class shall be initially elected for a term expiring at the annual meeting of stockholders to be held in 2002. Members of each class shall hold office until their successors are elected and qualified. At each succeeding annual meeting of the stockholders of the Corporation, the successors of the class of directors whose term expires at that meeting shall be elected by a plurality vote of all votes cast at such meeting to hold office for a term expiring at the annual meeting of stockholders held in the third year following the year of their election. Subject to the rights of the holders of any series of Preferred Stock or any other series or class of stock as set forth in this Certificate of Incorporation to elect additional directors under specified circumstances, any director may be removed from office at any time by the stockholders, with or without cause. Notwithstanding anything contained in this Certificate of Incorporation to the contrary, the affirmative vote of the holders of a majority of the voting power of the then outstanding Voting Stock, voting together as a single class, shall be required to amend, repeal or adopt any provision inconsistent with this Article VIII. ARTICLE X Each person who is or was or has agreed to become a director or officer of the Corporation, or each such person who is or was serving or who has agreed to serve at the request of the Board of Directors or an officer of the Corporation as an employee or agent of the Corporation or as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, including service with respect to employee benefit plans (including the heirs, executors, administrators or estate of such person), shall be indemnified by the Corporation, in accordance with the By-laws of the Corporation, to the fullest extent permitted from time to time by the GCL as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than said law permitted prior to such amendment) or any other applicable laws as presently or hereafter in effect. Without limiting the generality or the effect of the foregoing, the Corporation may enter into one or more agreements with any person which provide for indemnification greater than or different from that provided in this Article X. Any amendment or repeal of this Article X shall not adversely affect any right or protection existing hereunder in respect of any act or omission occurring prior to such amendment or repeal. ARTICLE XI A director of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (a) for any breach of the director's duty of loyalty to the Corporation or its stockholders, (b) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (c) under Section 174 of the GCL (or any successor to such provision), or (d) for any transaction from which the director derived an improper personal benefit. Any amendment or repeal of this Article XI shall not adversely affect any right or protection of a director of the Corporation existing hereunder in respect of any act or omission occurring prior to such amendment or repeal. ARTICLE XII Except as may be expressly provided in this Certificate of Incorporation, the Corporation reserves the right at any time and from time to time to amend, alter, change or repeal any provision contained in this Certificate of Incorporation or a Preferred Stock Designation, and any other provisions authorized by the laws of the State of Delaware at the time in force may be added or inserted, in the manner now or hereafter prescribed herein or by applicable law, and all rights, preferences and privileges of whatsoever nature conferred upon stockholders, directors or any other persons whomsoever by and pursuant to this Certificate of Incorporation in its present form or as hereafter amended are granted subject to the right reserved in this Article XII; provided, however, that any amendment or repeal of Article X or Article XI of this Certificate of Incorporation shall not adversely affect any right or protection existing hereunder in respect of any act or omission occurring prior to such amendment or repeal; and provided further that no Preferred Stock Designation shall be amended after the issuance of any shares of the series of Preferred Stock created thereby, except in accordance with the terms of such Preferred Stock Designation and the requirements of applicable law. ARTICLE XIII The name and mailing address of the incorporator is Robert B. Lamm, c/o Hvide Marine Incorporated, 2200 Eller Drive, P.O. Box 13038, Fort Lauderdale, Florida 33316. IN WITNESS WHEREOF, I, the undersigned, being the incorporator hereinbefore named, do hereby further certify that the facts hereinabove stated are truly set forth and, accordingly, I have hereunto set my hand this 9th day of December 1999. Robert B. Lamm Incorporator EX-3.2 3 BY-LAWS BY-LAWS of HVIDE MARINE INCORPORATED Incorporated under the Laws of the State of Delaware ARTICLE I OFFICES AND RECORDS Section 1.1. Delaware Office. The principal office of the Corporation in the State of Delaware shall be located in Wilmington, Delaware, and the name and address of its registered agent is The Corporation Trust Company, The Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County of New Castle. Section 1.2. Other Offices. The Corporation may have such other offices, either within or without the State of Delaware, as the Board of Directors may designate or as the business of the Corporation may from time to time require. Section 1.3. Books and Records. The books and records of the Corporation may be kept outside the State of Delaware at such place or places as may from time to time be designated by the Board of Directors. ARTICLE II STOCKHOLDERS Section 2.1. Annual Meeting. The annual meeting of the stockholders of the Corporation shall be held annually on such date as may be fixed by the Board of Directors. Section 2.2. Special Meetings. Subject to the rights of the holders of any series of stock having a preference over the Common Stock of the Corporation as to dividends or upon liquidation ("Preferred Stock") with respect to such series of Preferred Stock, special meetings of the stockholders may be called by the Chairman of the Board, by the President, by the Board of Directors pursuant to a resolution adopted by a majority of the total number of directors which the Corporation would have if there were no vacancies (the "Whole Board"), by a duly designated committee of the Board of Directors whose powers and authority, as provided in a resolution adopted by a majority of the Whole Board, include the power to call such meetings, or by the holders of a majority of the voting power of the then outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors (the "Voting Stock"). Section 2.3. Place of Meeting. The person or entity calling any annual or special meeting of the stockholders may designate the place of such meeting. If no designation is so made, the place of meeting shall be the principal office of the Corporation. Section 2.4. Notice of Meeting. Written or printed notice, stating the place, date and time of the meeting and the purpose or purposes for which the meeting is called, shall be delivered by the Corporation not less than ten (10) days nor more than sixty (60) days before the date of the meeting, either personally or by mail, to each stockholder of record entitled to vote at such meeting. If mailed, such notice shall be deemed to be delivered when deposited in the U.S. mail with postage thereon prepaid, addressed to the stockholder at his address as it appears on the stock transfer books of the Corporation. Such further notice shall be given as may be required by law. Only such business shall be conducted at a special meeting of stockholders as shall have been brought before the meeting pursuant to the Corporation's notice of meeting. Meetings may be held without notice if all stockholders entitled to vote are present, or if notice is waived by those not present in accordance with Section 6.4 of these By-laws. Any previously scheduled meeting of the stockholders may be postponed, and (unless the Certificate of Incorporation otherwise provides) any special meeting of the stockholders may be cancelled, by resolution of the Board of Directors, or by the stockholders calling the meeting, upon public notice given prior to the date previously scheduled for such meeting of stockholders. Section 2.5. Quorum and Adjournment. Except as otherwise provided by law or by the Certificate of Incorporation, the holders of a majority of the voting power of the then outstanding Voting Stock, represented in person or by proxy, shall constitute a quorum at a meeting of stockholders, except that when specified business is to be voted on by a class or series of stock voting as a class, the holders of a majority of the voting power of the shares of such class or series shall constitute a quorum of such class or series for the transaction of such business. The chairman of the meeting or the holders of a majority of the voting power so represented may adjourn the meeting from time to time, whether or not there is a quorum. No notice of the time and place of adjourned meetings need be given except as required by law. The stockholders present at a duly called meeting at which a quorum is present may continue to transact business until adjournment, notwithstanding the withdrawal of enough stockholders to leave less than a quorum. Section 2.6. Proxies. At all meetings of stockholders, a stockholder may vote by proxy executed in writing (or in any other manner permitted by law) by the stockholder, or by his duly authorized attorney-in-fact. Section 2.7. Notice of Stockholder Business and Nominations. (A) Annual Meetings of Stockholders. (1) Nominations of persons for election to the Board of Directors of the Corporation and the proposal of business to be considered by the stockholders may be made at an annual meeting of stockholders (a) pursuant to the Corporation's notice of meeting, (b) by or at the direction of the Board of Directors or (c) by any stockholder of the Corporation who was a stockholder of record at the time of giving of the notice provided for in this Section 2.7, who is entitled to vote at the meeting and who complies with the notice procedures set forth in this Section 2.7. (2) For nominations or other business to be properly brought before an annual meeting by a stockholder pursuant to clause (c) of paragraph (A)(1) of this Section 2.7, the stockholder must have given timely notice thereof in writing to the Secretary of the Corporation, and such other business must otherwise be a proper matter for stockholder action. To be timely, a stockholder's notice shall be delivered to the Secretary at the principal executive offices of the Corporation not later than the close of business on the 60th day nor earlier than the close of business on the 90th day prior to the first anniversary of the preceding year's annual meeting; provided, however, that in the event that the date of the annual meeting is more than 30 days before or more than 60 days after such anniversary date, notice by the stockholder to be timely must be so delivered not earlier than the close of business on the 90th day prior to such annual meeting and not later than the close of business on the later of the 60th day prior to such annual meeting or the 10th day following the day on which public announcement of the date of such meeting is first made by the Corporation. In no event shall the public announcement of an adjournment of an annual meeting commence a new time period for the giving of a stockholder's notice as described above. Such stockholder's notice shall set forth (a) as to each person whom the stockholder proposes to nominate for election or re-election as a director all information relating to such person that is required to be disclosed in solicitations of proxies for election of directors in an election contest, or is otherwise required, in each case pursuant to Regulation 14A under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and Rule 14a-11 thereunder (including such person's written consent to being named in the proxy statement as a nominee and to serving as a director if elected); (b) as to any other business that the stockholder proposes to bring before the meeting, a brief description of the business desired to be brought before the meeting, the reasons for conducting such business at the meeting and any material interest in such business of such stockholder and the beneficial owner, if any, on whose behalf the proposal is made; and (c) as to the stockholder giving the notice and the beneficial owner, if any, on whose behalf the nomination or proposal is made (i) the name and address of such stockholder, as they appear on the Corporation's books, and of such beneficial owner and (ii) the class and number of shares of the Corporation which are owned beneficially and of record by such stockholder and such beneficial owner. (3) Notwithstanding anything in the second sentence of paragraph (A)(2) of this Section 2.7 to the contrary, in the event that the number of directors to be elected to the Board of Directors of the Corporation is increased and there is no public announcement by the Corporation naming all of the nominees for election as director or specifying the size of the increased Board of Directors at least 70 days prior to the first anniversary of the preceding year's annual meeting, a stockholder's notice required by this Section 2.7 shall also be considered timely, but only with respect to nominees for any new positions created by such increase, if it shall be delivered to the Secretary at the principal executive offices of the Corporation not later than the close of business on the 10th day following the day on which such public announcement is first made by the Corporation. (B) Special Meetings of Stockholders. Only such business shall be conducted at a special meeting of stockholders as shall have been brought before the meeting pursuant to the Corporation's notice of meeting. Nominations of persons for election to the Board of Directors may be made at a special meeting of stockholders at which directors are to be elected pursuant to the Corporation's notice of meeting (a) by or at the direction of the Board of Directors or (b) by any stockholder of the Corporation who is a stockholder of record at the time of giving of notice provided for in this Section 2.7, who shall be entitled to vote at the meeting and who complies with the notice procedures set forth in this Section 2.7. In the event the Corporation calls a special meeting of stockholders for the purpose of electing one or more directors to the Board of Directors, any such stockholder may nominate a person or persons (as the case may be), for election to such position(s) as specified in the Corporation's notice of meeting, if the stockholder's notice required by paragraph (A)(2) of this Section 2.7 shall be delivered to the Secretary at the principal executive offices of the Corporation not earlier than the close of business on the 90th day prior to such special meeting and not later than the close of business on the later of the 60th day prior to such special meeting or the 10th day following the day on which public announcement is first made of the date of the special meeting and of the nominees proposed by the Board of Directors to be elected at such meeting. In no event shall the public announcement of an adjournment of a special meeting commence a new time period for the giving of a stockholder's notice as described above. (C) General. (1) Only such persons who are nominated in accordance with the procedures set forth in this Section 2.7 shall be eligible to serve as directors and only such business shall be conducted at a meeting of stockholders as shall have been brought before the meeting in accordance with the procedures set forth in this Section 2.7. Except as otherwise provided by law, the Certificate of Incorporation or these By-laws, the chairman of the meeting shall have the power and duty to determine whether a nomination or any business proposed to be brought before the meeting was made or proposed, as the case may be, in accordance with the procedures set forth in this Section 2.7 and, if any proposed nomination or business is not in compliance with this Section 2.7, to declare that such defective proposal or nomination shall be disregarded. (2) For purposes of this Section 2.7, "public announcement" shall mean disclosure in a press release reported by the Dow Jones News Service, Associated Press or a comparable national news service or in a document publicly filed by the Corporation with the Securities and Exchange Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act. (3) Notwithstanding the foregoing provisions of this Section 2.7, a stockholder shall also comply with all applicable requirements of the Exchange Act and the rules and regulations thereunder with respect to the matters set forth in this Section 2.7. Nothing in this Section 2.7 shall be deemed to affect any rights (i) of stockholders to request inclusion of proposals in the Corporation's proxy statement pursuant to Rule 14a-8 under the Exchange Act or (ii) of the holders of any series of Preferred Stock to elect directors under specified circumstances. Section 2.8. Procedure for Election of Directors; Required Vote. Election of directors at all meetings of the stockholders at which directors are to be elected shall be by ballot, and, subject to the rights of the holders of any series of Preferred Stock to elect directors under specified circumstances, a plurality of the votes cast thereat shall elect directors. Except as otherwise provided by law, the Certificate of Incorporation, or these By-laws, in all matters other than the election of directors, the affirmative vote of the holders of a majority of the voting power present in person or represented by proxy at the meeting and entitled to vote on the matter shall be the act of the stockholders. Section 2.9. Inspectors of Elections; Opening and Closing the Polls. The Board of Directors by resolution shall appoint one or more inspectors, which inspector or inspectors may include individuals who serve the Corporation in other capacities, including, without limitation, as officers, employees, agents or representatives, to act at meetings of stockholders and make written reports thereof. One or more persons may be designated as alternate inspectors to replace any inspector who fails to act. If no inspector or alternate has been appointed to act or is able to act at a meeting of stockholders, the chairman of the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before discharging his or her duties, shall take and sign an oath faithfully to execute the duties of inspector with strict impartiality and according to the best of his or her ability. The inspectors shall have the duties prescribed by law. The chairman of the meeting shall fix and announce at the meeting the date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at a meeting. ARTICLE III BOARD OF DIRECTORS Section 3.1. General Powers. The business and affairs of the Corporation shall be managed under the direction of the Board of Directors. In addition to the powers and authorities by these By-laws expressly conferred upon them, the Board of Directors may exercise all such powers of the Corporation and do all such lawful acts and things as are not by statute or by the Certificate of Incorporation or by these By-laws required to be exercised or done by the stockholders. Section 3.2. Number, Tenure and Qualifications. Subject to the rights of the holders of any series of Preferred Stock to elect directors under specified circumstances, the number of directors shall be fixed from time to time exclusively pursuant to a resolution adopted by a majority of the Whole Board. The directors, other than those who may be elected by the holders of any series of Preferred Stock under specified circumstances, shall be divided, with respect to the time for which they severally hold office, into three classes, as nearly equal in number as is reasonably possible, designated Class I, Class II and Class III, with the initial term of office of the Class I directors to expire at the 2000 annual meeting of stockholders, the initial term of office of the Class II directors to expire at the 2001 annual meeting of stockholders and the initial term of office of the Class III directors to expire at the 2002 annual meeting of stockholders, with each director to hold office until his or her successor shall have been duly elected and qualified. At each annual meeting of stockholders, commencing with the 2000 annual meeting, directors elected to succeed those directors whose terms then expire shall be elected for a term of office to expire at the third succeeding annual meeting of stockholders after their election, with each director to hold office until his or her successor shall have been duly elected and qualified. Section 3.3. Regular Meetings. A regular meeting of the Board of Directors shall be held without other notice than this Section 3.3 immediately after, and at the same place as, the Annual Meeting of Stockholders. The Board of Directors may fix the time and place for the holding of additional regular meetings without notice. Section 3.4. Special Meetings. Special meetings of the Board of Directors shall be called at the request of the Chairman of the Board, the President or a majority of the directors then in office. The person or persons authorized to call special meetings of the Board of Directors may fix the place and time of such meetings. Section 3.5. Notice. Notice of any special meeting or notice of a change in the time or place of any regular meeting of the Board of Directors shall be given to each director at his or her business or residence in writing by hand delivery, first-class or overnight mail or courier service, telegram, or facsimile or other electronic transmission (including electronic mail), or orally by telephone. If mailed by first-class mail, such notice shall be deemed adequately delivered when deposited in the U.S. mails so addressed, with postage thereon prepaid, at least five (5) days before such meeting. If by telegram, overnight mail or courier service, such notice shall be deemed adequately delivered when the telegram is delivered to the telegraph company or the notice is delivered to the overnight mail or courier service company at least twenty-four (24) hours before such meeting. If by facsimile or other electronic transmission, such notice shall be deemed adequately delivered when the notice is transmitted at least twelve (12) hours before such meeting. If by telephone, the notice shall be communicated to the director or his or her representative or answering machine. If by telephone or by hand delivery, the notice shall be given at least twenty-four (24) hours prior to the time set for the meeting. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the Board of Directors need be specified in the notice of such meeting, except for amendments to these By-laws, as provided under Section 8.1. A meeting may be held at any time without notice if all the directors are present or if those not present waive notice of the meeting in accordance with Section 6.4 of these By-laws. Section 3.6. Action by Consent of Board of Directors. Any action required or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be taken without a meeting if all members of the Board of Directors or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the Board of Directors or committee. Section 3.7. Conference Telephone Meetings. Members of the Board of Directors, or any committee thereof, may participate in a meeting of the Board of Directors or such committee by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at such meeting. Section 3.8. Quorum. Subject to Section 3.9, a number of directors equal to at least a majority of the Whole Board shall constitute a quorum for the transaction of business. If at any meeting of the Board of Directors there shall be less than a quorum present, a majority of the directors present may adjourn the meeting from time to time without further notice. The act of the majority of the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors. The directors present at a duly organized meeting may continue to transact business until adjournment, notwithstanding the withdrawal of enough directors to leave less than a quorum. Section 3.9. Vacancies. Subject to applicable law and the rights of the holders of any series of Preferred Stock with respect to such series of Preferred Stock, and unless the Board of Directors otherwise determines, vacancies resulting from death, resignation, retirement, disqualification, removal from office or other cause, and newly created directorships resulting from any increase in the authorized number of directors, may be filled only by the affirmative vote of a majority of the remaining directors, though less than a quorum of the Board of Directors, and directors so chosen shall hold office for a term expiring at the annual meeting of stockholders at which the term of office of the class to which they have been elected expires and until such director's successor shall have been duly elected and qualified. No decrease in the number of authorized directors constituting the Whole Board shall shorten the term of any incumbent director. Section 3.10. Committees. The Board of Directors may establish one or more committees. Each Committee shall consist of two or more directors of the Corporation designated by the Board of Directors. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. Any such committee may to the extent permitted by law exercise such powers and shall have such responsibilities as shall be specified in the designating resolution. In the absence or disqualification of any member of such committee or committees, the member or members thereof present at any meeting and not disqualified from voting, whether or not constituting a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of any such absent or disqualified member. Each committee shall keep written minutes of its proceedings and shall report such proceedings to the Board of Directors when requested. A majority of any committee may determine its action and fix the time and place of its meetings, unless the Board of Directors shall otherwise provide. Notice of such meetings shall be given to each member of the committee in the manner provided for in Section 3.5 of these By-laws. The Board of Directors shall have the power at any time to fill vacancies in, to change the membership of, or to dissolve any such committee. Nothing herein shall be deemed to prevent the Board of Directors from appointing one or more committees consisting in whole or in part of persons who are not directors of the Corporation; provided, however, that no such committee shall have or may exercise any authority of the Board of Directors. The term of office of a committee member shall be as provided in the resolution of the Board designating him or her but shall not exceed his or her term as a director. If prior to the end of his or her term, a committee member should cease to be a director, he or she shall cease to be a committee member. Any member of a committee may resign at any time by giving written notice to the Board of Directors, the Chairman of the Board, the President or the Secretary. Such resignation shall take effect as provided in Section 6.6 of these By-laws in the case of resignations by directors. Any member of a committee may be removed from such committee, either with or without cause, at any time, by resolution adopted by a majority of the Whole Board. Any vacancy in a committee shall be filled by the Board of Directors in the manner prescribed by these By-laws for the original designation of the members of such committee. Section 3.11. Removal. Subject to the rights of the holders of any series of Preferred Stock with respect to such series of Preferred Stock, any director, or the entire Board of Directors, may be removed from office at any time by the stockholders, with or without cause. Section 3.12. Records. The Board of Directors shall cause to be kept a record containing the minutes of the proceedings of the meetings of the Board of Directors and of the stockholders, appropriate stock books and registers and such books of records and accounts as may be necessary for the proper conduct of the business of the Corporation. ARTICLE IV OFFICERS Section 4.1. Elected Officers. The elected officers of the Corporation shall be a Chairman of the Board, a President, a Secretary, a Treasurer, and such other officers (including, without limitation, a Chief Financial Officer) as the Board of Directors may deem proper from time to time. The Chairman of the Board shall be chosen from among the directors. Each officer elected by the Board of Directors shall have such powers and duties as generally pertain to his or her respective office, subject to the specific provisions of this ARTICLE IV. Such officers shall also have such powers and duties as may be conferred from time to time by the Board of Directors. The Board of Directors may from time to time elect, or the Chairman of the Board or the President may appoint, such assistant officers (including one or more Assistant Vice Presidents, Assistant Secretaries, Assistant Treasurers and Assistant Controllers) as may be necessary or desirable for the conduct of the business of the Corporation. Such assistant officers shall have such duties and shall hold their offices for such terms as shall be provided in these By-laws or as may be prescribed by the Board of Directors or by the Chairman of the Board or the President, as the case may be. The Chairman of the Board, the Chief Executive Officer (if different from the Chairman of the Board), the President, and any Vice President or other individual authorized to act in the absence of any of the foregoing, shall be citizens of the United States. Section 4.2. Election and Term of Office. The elected officers of the Corporation shall be elected annually by the Board of Directors at the regular meeting of the Board of Directors held after the annual meeting of the stockholders or at any other time as the Board of Directors may deem proper. Each officer shall hold office until his successor shall have been duly elected and shall have qualified or until his death or until he shall resign, but any officer may be removed from office in the manner specified in Section 4.10 of these By-laws. No officer or assistant shall have any rights against the Corporation for compensation by virtue of such election beyond the date of the election of his or her successor, or his or her death, resignation or removal, whichever event shall first occur, except as otherwise provided in an employment contract or under an employee deferred compensation plan Section 4.3. Chairman of the Board. The Chairman of the Board shall preside at all meetings of the stockholders and of the Board of Directors and shall be the Chief Executive Officer of the Company. The Chairman of the Board shall be responsible for the general management of the affairs of the Corporation and shall perform all duties incidental to his or her office as may be required by law and all such other duties as are properly required of him or her by the Board of Directors. He or she shall make reports to the Board of Directors and the stockholders, and shall see that all orders and resolutions of the Board of Directors and of any committee thereof are carried into effect. The Chairman of the Board may also serve as President, if so elected by the Board of Directors. Section 4.4. President. The President shall act in a general executive capacity and shall assist the Chairman of the Board in the administration and operation of the Corporation's business and the general supervision of its policies and affairs. In the absence of or the inability to act of the Chairman of the Board, the President shall perform all duties of the Chairman of the Board and preside at all meetings of stockholders and of the Board of Directors. Section 4.5. Vice Presidents. Each Vice President shall have such powers and shall perform such duties as shall be assigned to him by the Board of Directors. Section 4.6. Chief Financial Officer. The Chief Financial Officer (if any) shall be a Vice President and act in an executive financial capacity. He shall assist the Chairman of the Board and the President in the general supervision of the Corporation's financial policies and affairs. Section 4.7. Treasurer. The Treasurer shall exercise general supervision over the receipt, custody and disbursement of corporate funds. The Treasurer shall cause the funds of the Corporation to be deposited in such banks as may be authorized by the Board of Directors, or in such banks as may be designated as depositaries in the manner provided by resolution of the Board of Directors. He or she shall have such further powers and duties and shall be subject to such directions as may be granted or imposed upon him or her from time to time by the Board of Directors, the Chairman of the Board or the President. Section 4.8. Secretary. The Secretary shall keep or cause to be kept in one or more books provided for that purpose, the minutes of all meetings of the Board of Directors, the committees of the Board of Directors and the stockholders; he or she shall see that all notices are duly given in accordance with the provisions of these By-laws and as required by law; he or she shall be custodian of the records and the seal of the Corporation and affix and attest the seal to all stock certificates of the Corporation (unless the seal of the Corporation on such certificates shall be a facsimile, as hereinafter provided) and affix and attest the seal to all other documents to be executed on behalf of the Corporation under its seal; and he or she shall see that the books, reports, statements, certificates and other documents and records required by law to be kept and filed are properly kept and filed; and in general, he or she shall perform all the duties incident to the office of Secretary and such other duties as from time to time may be assigned to him or her by the Board of Directors, the Chairman of the Board or the President. Section 4.9. Controller. The Controller shall have general control, charge and supervision of the accounts of the Corporation. He or she shall see that proper accounts are maintained and that all accounts are properly credited from time to time. He or she shall prepare or cause to be prepared the financial statements of the Corporation. Section 4.10. Removal. Any officer elected by the Board of Directors may be removed by the affirmative vote of a majority of the Whole Board whenever, in their judgment, the best interests of the Corporation would be served thereby. Any assistant officer appointed by the Chairman of the Board or the President may be removed by him or her whenever, in his or her judgment, the best interests of the Corporation would be served thereby. The removal of an officer or assistant officer shall be without prejudice to the contractual rights, if any, of the person so removed. Section 4.11. Vacancies. A newly created elected office and a vacancy in any elected office because of death, resignation, or removal may be filled by the Board of Directors for the unexpired portion of the term at any meeting of the Board of Directors. ARTICLE V STOCK CERTIFICATES AND TRANSFERS Section 5.1. Stock Certificates and Transfers. The interest of each stockholder of the Corporation shall be evidenced by certificates for shares of stock in such form as the appropriate officers of the Corporation may from time to time prescribe. The shares of the stock of the Corporation shall be transferred on the books of the Corporation by the holder thereof in person or by his or her attorney, upon surrender for cancellation of certificates for at least the same number of shares, with an assignment and power of transfer endorsed thereon or attached thereto, duly executed, with such proof of the authenticity of the signature as the Corporation or its agents may reasonably require. The certificates of stock shall be signed, countersigned and registered in such manner as the Board of Directors may by resolution prescribe, which resolution may permit all or any of the signatures on such certificates to be in facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate has ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if he were such officer, transfer agent or registrar at the date of issue. Section 5.2. Lost, Stolen or Destroyed Certificates. No certificate for shares of stock in the Corporation shall be issued in place of any certificate alleged to have been lost, destroyed or stolen, except on production of such evidence of such loss, destruction or theft and on delivery to the Corporation of a bond of indemnity in such amount, upon such terms and secured by such surety, as the Board of Directors or any officer may in its or his or her discretion require. ARTICLE VI MISCELLANEOUS PROVISIONS Section 6.1. Fiscal Year. The fiscal year of the Corporation shall begin on the first day of January and end on the thirty-first day of December of each year. Section 6.2. Dividends. The Board of Directors may from time to time declare, and the Corporation may pay, dividends on its outstanding shares in the manner and upon the terms and conditions provided by law and the Certificate of Incorporation. Section 6.3. Seal. The corporate seal shall have enscribed thereon the words "Corporate Seal," the year of incorporation and around the margin thereof the words "Hvide Marine Incorporated". Section 6.4. Waiver of Notice. Whenever any notice is required to be given to any stockholder or director of the Corporation under the provisions of the General Corporation Law of the State of Delaware (the "GCL") or these By-laws, a waiver thereof in writing, signed by the person or persons entitled to such notice, whether before or after the time stated therein, shall be deemed equivalent to the giving of such notice. The attendance of any stockholder at a meeting in person or by proxy, without protesting at the beginning of the meeting the lack of notice of such meeting, shall constitute a waiver of notice of such stockholder. Neither the business to be transacted at, nor the purpose of, any annual or special meeting of the stockholders or the Board of Directors or committee thereof need be specified in any waiver of notice of such meeting. Section 6.5. Audits. The accounts, books and records of the Corporation shall be audited upon the conclusion of each fiscal year by an independent certified public accountant selected by the Board of Directors, and it shall be the duty of the Board of Directors to cause such audit to be done annually. Section 6.6. Resignations. Any director or any officer or assistant officer, whether elected or appointed, may resign at any time by giving written notice of such resignation to the Chairman of the Board, the President, or the Secretary, and such resignation shall be deemed to be effective as of the close of business on the date said notice is received by the Chairman of the Board, the President, or the Secretary, or at such later time as is specified therein. No formal action shall be required of the Board of Directors or the stockholders to make any such resignation effective. Section 6.7. Indemnification and Insurance. (A) Each person who was or is made a party or is threatened to be made a party to or is involved in any action, suit, or proceeding, whether civil, criminal, administrative or investigative (hereinafter, a "proceeding"), by reason of the fact that he or she or a person of whom he or she is the legal representative is or was a director or officer of the Corporation or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust or other enterprise, including service with respect to employee benefit plans maintained or sponsored by the Corporation, whether the basis of such proceeding is alleged action in an official capacity as a director, officer, employee or agent or in any other capacity while serving as a director, officer, employee or agent, shall be indemnified and held harmless by the Corporation to the fullest extent authorized by the GCL as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than said law permitted the Corporation to provide prior to such amendment), against all expense, liability and loss (including attorneys' fees, judgments, fines, excise taxes or penalties and amounts paid or to be paid in settlement) reasonably incurred or suffered by such person in connection therewith, and such indemnification shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of his or her heirs, executors and administrators; provided, however, that except as provided in paragraph (C) of this Section 6.7, the Corporation shall indemnify any such person seeking indemnification in connection with a proceeding (or part thereof) initiated by such person only if such proceeding (or part thereof) was authorized by the Board of Directors. The right to indemnification conferred in this Section 6.7 shall be a contract right and shall include the right to be paid by the Corporation the expenses incurred in defending any such proceeding in advance of its final disposition, such advances to be paid by the Corporation within 20 days after the receipt by the Corporation of a statement or statements from the claimant requesting such advance or advances from time to time; provided, however, that if the GCL requires, the payment of such expenses incurred by a director or officer in his or her capacity as a director or officer (and not in any other capacity in which service was or is rendered by such person while a director or officer, including, without limitation, service to an employee benefit plan) in advance of the final disposition of a proceeding, shall be made only upon delivery to the Corporation of an undertaking by or on behalf of such director or officer, to repay all amounts so advanced if it shall ultimately be determined that such director or officer is not entitled to be indemnified under this Section 6.7 or otherwise. (B) To obtain indemnification under this Section 6.7, a claimant shall submit to the Corporation a written request, including therein or therewith such documentation and information as is reasonably available to the claimant and is reasonably necessary to determine whether and to what extent the claimant is entitled to indemnification. Upon written request by a claimant for indemnification pursuant to the first sentence of this paragraph (B), a determination, if required by applicable law, with respect to the claimant's entitlement thereto shall be made as follows: (1) if requested by the claimant, by Independent Counsel (as hereinafter defined), or (2) if no request is made by the claimant for a determination by Independent Counsel, (i) by the Board of Directors by a majority vote of a quorum consisting of Disinterested Directors (as hereinafter defined), or (ii) if a quorum of the Board of Directors consisting of Disinterested Directors is not obtainable or, even if obtainable, such quorum of Disinterested Directors so directs, by Independent Counsel in a written opinion to the Board of Directors, a copy of which shall be delivered to the claimant, or (iii) if a quorum of Disinterested Directors so directs, by the stockholders of the Corporation. In the event the determination of entitlement to indemnification is to be made by Independent Counsel at the request of the claimant, the Independent Counsel shall be selected by the Board of Directors unless there shall have occurred within two years prior to the date of the commencement of the action, suit or proceeding for which indemnification is claimed a "Change of Control" (as defined below) in which case the Independent Counsel shall be selected by the claimant unless the claimant shall request that such selection be made by the Board of Directors. If it is so determined that the claimant is entitled to indemnification, payment to the claimant shall be made within 10 days after such determination. (C) If a claim under paragraph (A) of this Section 6.7 is not paid in full by the Corporation within 30 days after a written claim pursuant to paragraph (B) of this Section 6.7 has been received by the Corporation, the claimant may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim and, if successful in whole or in part, the claimant shall be entitled to be paid also the expense of prosecuting such claim. It shall be a defense to any such action (other than an action brought to enforce a claim for expenses incurred in defending any proceeding in advance of its final disposition where the required undertaking, if any is required, has been tendered to the Corporation) that the claimant has not met the standard of conduct which makes it permissible under the GCL for the Corporation to indemnify the claimant for the amount claimed, but the burden of proving such defense shall be on the Corporation. Neither the failure of the Corporation (including its Board of Directors, Independent Counsel or stockholders) to have made a determination prior to the commencement of such action that indemnification of the claimant is proper in the circumstances because he or she has met the applicable standard of conduct set forth in the GCL, nor an actual determination by the Corporation (including its Board of Directors, Independent Counsel or stockholders) that the claimant has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the claimant has not met the applicable standard of conduct. (D) If a determination shall have been made pursuant to paragraph (B) of this Section 6.7 that the claimant is entitled to indemnification, the Corporation shall be bound by such determination in any judicial proceeding commenced pursuant to paragraph (C) of this Section 6.7. (E) The Corporation shall be precluded from asserting in any judicial proceeding commenced pursuant to paragraph (C) of this Section 6.7 that the procedures and presumptions of this Section 6.7 are not valid, binding and enforceable and shall stipulate in such proceeding that the Corporation is bound by all the provisions of this Section 6.7. (F) The right to indemnification and the payment of expenses incurred in defending a proceeding in advance of its final disposition conferred in this Section 6.7 shall not be exclusive of any other right which any person may have or hereafter acquire under any statute, provision of the Certificate of Incorporation, these By-laws, agreement, vote of stockholders or Disinterested Directors or otherwise. No repeal or modification of this Section 6.7 shall in any way diminish or adversely affect the rights of any director, officer, employee or agent of the Corporation hereunder in respect of any occurrence or matter arising prior to any such repeal or modification. (G) The Corporation may maintain insurance, at its expense, to protect itself and any director, officer, employee or agent of the Corporation or another corporation, partnership, joint venture, trust or other enterprise against any expense, liability or loss, whether or not the Corporation would have the power to indemnify such person against such expense, liability or loss under the GCL. To the extent that the Corporation maintains any policy or policies providing such insurance, each such director or officer, and each such agent or employee to which rights to indemnification have been granted as provided in paragraph (H) of this Section 6.7, shall be covered by such policy or policies in accordance with its or their terms to the maximum extent of the coverage thereunder for any such director, officer, employee or agent. (H) The Corporation may, to the extent authorized from time to time by the Board of Directors, grant rights to indemnification, and rights to be paid by the Corporation the expenses incurred in defending any proceeding in advance of its final disposition, to any employee or agent of the Corporation to the fullest extent of the provisions of this Section 6.7 with respect to the indemnification and advancement of expenses of directors and officers of the Corporation. (I) If any provision or provisions of this Section 6.7 shall be held to be invalid, illegal or unenforceable for any reason whatsoever: (1) the validity, legality and enforceability of the remaining provisions of this Section 6.7 (including, without limitation, each portion of any paragraph of this By-law containing any such provision held to be invalid, illegal or unenforceable, that is not itself held to be invalid, illegal or unenforceable) shall not in any way be affected or impaired thereby; and (2) to the fullest extent possible, the provisions of this Section 6.7 (including, without limitation, each such portion of any paragraph of this By-law containing any such provision held to be invalid, illegal or unenforceable) shall be construed so as to give effect to the intent manifested by the provision held invalid, illegal or unenforceable. (J) For purposes of this Section 6.7: (1) "Disinterested Director" means a director of the Corporation who is not and was not a party to the matter in respect of which indemnification is sought by the claimant. (2) "Independent Counsel" means a law firm, a member of a law firm, or an independent practitioner, that is experienced in matters of corporation law and shall include any person who, under the applicable standards of professional conduct then prevailing, would not have a conflict of interest in representing either the Corporation or the claimant in an action to determine the claimant's rights under this Section 6.7. (3) "Change of Control" has the meaning given such term in the Corporation's Stock Option Plan, as the same may be amended or superseded from time to time. (K) Any notice, request or other communication required or permitted to be given to the Corporation under this Section 6.7 shall be in writing and either delivered in person or sent by facsimile, telex, telegram, overnight mail or courier service, or certified or registered mail, postage prepaid, return receipt requested, to the Secretary of the Corporation and shall be effective only upon receipt by the Secretary. ARTICLE VII CONTRACTS, PROXIES, ETC. Section 7.1. Contracts. Except as otherwise required by law, the Certificate of Incorporation or these By-laws, any contracts or other instruments may be executed and delivered in the name and on the behalf of the Corporation by such officer or officers of the Corporation as the Board of Directors may from time to time direct. Such authority may be general or confined to specific instances as the Board of Directors may determine. The Chairman of the Board, the President or any Vice President may execute bonds, contracts, deeds, leases and other instruments to be made or executed for or on behalf of the Corporation. Subject to any restrictions imposed by the Board of Directors or the Chairman of the Board, the President or any Vice President of the Corporation may delegate contractual powers to others under his or her jurisdiction, it being understood, however, that any such delegation of power shall not relieve such officer of responsibility with respect to the exercise of such delegated power. Section 7.2. Proxies. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairman of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the Corporation, in the name and on behalf of the Corporation, to cast the votes which the Corporation may be entitled to cast as the holder of stock or other securities in any other corporation, any of whose stock or other securities may be held by the Corporation, at meetings of the holders of the stock or other securities of such other corporation, or to consent in writing, in the name of the Corporation as such holder, to any action by such other corporation, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consent, and may execute or cause to be executed in the name and on behalf of the Corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he may deem necessary or proper in the premises. ARTICLE VIII AMENDMENTS Section 8.1. Amendments. These By-laws may be altered, amended, or repealed at any meeting of the Board of Directors or of the stockholders, provided notice of the proposed change was given in the notice of the meeting and, in the case of a meeting of the Board of Directors, in a notice given not less than two days prior to the meeting; provided, however, that, in the case of amendments by stockholders, notwithstanding any other provisions of these By-laws or any provision of law which might otherwise permit a lesser vote or no vote, but in addition to any affirmative vote of the holders of any particular class or series of the capital stock of the Corporation required by law, the Certificate of Incorporation or these By-laws, the affirmative vote of the holders of a majority of the voting power of all the then outstanding shares of the Voting Stock, voting together as a single class, shall be required to alter, amend or repeal any provision of these By-laws. EX-4.2 4 FORM OF WARRANT CERTIFICATE EXHIBIT A [Form of Warrant Certificate] [Face] Cusip No. 44851M 11 7 ______ Warrants Class A Warrant Certificate HVIDE MARINE INCORPORATED This Warrant Certificate certifies that , or its registered assigns, is the registered holder of Warrants expiring December 14, 2003 (the "Warrants") to purchase Common Stock, par value $.01 (the "Common Stock"), of Hvide Marine Incorporated, a Delaware corporation (the "Company"). Each Warrant entitles the registered holder upon exercise at any time from 9:00 a.m. on or after the date of the consummation of the Plan of Reorganization of Hvide Marine Incorporated, a Florida corporation, under Chapter 11 of the Bankruptcy Code (the "Exercisability Date") until 5:00 p.m. New York City Time on December 14, 2003, to receive from the Company one fully paid and nonassessable share of Common Stock (the "Warrant Shares") at the initial exercise price (the "Exercise Price") of $38.49 per share payable in lawful money of the United States of America upon surrender of this Warrant Certificate and payment of the Exercise Price at the office or agency of the Warrant Agent, but only subject to the conditions set forth herein and in the Warrant Agreement referred to on the reverse hereof. The Exercise Price and number of Warrant Shares issuable upon exercise of the Warrants are subject to adjustment upon the occurrence of certain events set forth in the Warrant Agreement. No Warrant may be exercised before the Exercisability Date. No Warrant may be exercised after 5:00 p.m., New York City Time on December 14, 2003, and to the extent not exercised by such time such Warrants shall become void. Reference is hereby made to the further provisions of this Warrant Certificate set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as though fully set forth at this place. This Warrant Certificate shall not be valid unless countersigned by the Warrant Agent, as such term is used in the Warrant Agreement. This Warrant Certificate shall be governed by and construed in accordance with the internal laws of the State of New York. IN WITNESS WHEREOF, Hvide Marine Incorporated, a Delaware corporation, has caused this Warrant Certificate to be signed by its President and by its Secretary, each by a signature or a facsimile thereof, and has caused a facsimile of its corporate seal to be affixed hereunto or imprinted hereon. Dated: HVIDE MARINE INCORPORATED By: Name: Title: President By: Name: Title: Secretary [SEAL] Countersigned: State Street Bank and Trust Company - ---------------------- as Warrant Agent By: Authorized Signature [Form of Warrant Certificate] [Reverse] [ Because vessels owned by Hvide Marine Incorporated (the "Company") and its subsidiaries operate in the United States coastwise trades, United States law provides that no more than 25 percent of its stock may be owned or controlled by Non-Citizens, as defined in the Application for Purchase of Common Stock printed below on this Certificate. Under the Articles of Incorporation of the Company, the maximum percentage of the total outstanding shares of common stock of the Company that may be owned by Non-Citizens is 24.99%. Any purported sale, transfer or other disposition to Non-Citizens of shares of common stock which would result in increasing the ownership of shares by Non-Citizens above such maximum permitted percentage shall be ineffective as against the Company to transfer the shares or any voting or other rights in respect thereof, and such transfer shall not be recorded on the books of the Company in any such case, and neither the Company nor the transfer agent for the common stock shall be required to recognize the transferee or purported transferee thereof as a stockholder of the Company for any purpose whatsoever except to the extent necessary to effect any remedy available to the Company. Each share of common stock issued by the Company shall be represented by either CITIZEN SHARE CERTIFICATES or NON- CITIZEN SHARE CERTIFICATES, and shall be subject to the limitations set forth thereon. Any shares represented by CITIZEN SHARE CERTIFICATES held in the names of or for the account of Non-Citizens will have no rights, and the Company may regard any certificate representing such shares, whether or not validly issued, as having been invalidly issued. The Company will furnish to any Warrant holder, upon written request and without charge, copies of the applicable provisions of the Certificate of Incorporation of the Company. Any such request may be addressed to the Company. The shares of common stock to be purchased pursuant to this Warrant will be issued on the books of the Company only if [the Application for Purchase of Common Stock set forth below has been executed by the purchaser and]1 the Company determines that such issuance will not cause the percentage ownership of common stock by Non-Citizens to exceed the maximum permitted percentage. --------------------------------------------- APPLICATION FOR PURCHASE OF COMMON STOCK The undersigned (the "Applicant") makes application for the purchase by the Applicant of the number of shares of common stock indicated below and hereby certifies to Hvide Marine Incorporated that: (answer (a), (b) and/or (c) as applicable) -------- 1 This clause to be inserted only if the Warrant is in Definitive form. (a) The Applicant will be the beneficial owner of shares of the common stock of Hvide Marine Incorporated and is o is not o a "Citizen" (check one). (b) The Applicant will hold shares of the common stock of Hvide Marine Incorporated for the benefit of one or more "Persons" who ARE "Citizens." (c) The Applicant will hold shares of the common stock of Hvide Marine Incorporated for the benefit of one or more "Persons" who ARE NOT "Citizens." The Applicant agrees that, on the request of Hvide Marine Incorporated, he will furnish proof in support of this Certificate. The Applicant understands that he has an ongoing obligation to provide the information set forth herein and agrees to provide a new Citizenship Certificate at any time as the facts affecting his citizenship or the citizenship of the beneficial owner(s) for whom he holds Hvide Marine Incorporated common stock change. Hvide Marine Incorporated will provide a blank Citizenship Certificate to the Applicant upon request. IMPORTANT NOTICE THIS APPLICATION CONSTITUTES A BASIS FOR HVIDE MARINE INCORPORATED'S REPRESENTATION TO THE UNITED STATES GOVERNMENT THAT IT IS A CITIZEN WITHIN THE MEANING OF THE SHIPPING ACT, 1916, AS AMENDED. ANY PERSON MAKING A STATEMENT HEREIN WHICH HE KNOWS TO BE FALSE MAY BE PROCEEDED AGAINST UNDER TITLE 18, UNITED STATES CODE, SECTION 1001, WHICH SECTION PRESCRIBES PENALTIES OF UP TO FIVE YEARS IMPRISONMENT OR A FINE OF UP TO $10,000. This Application is dated , . Signature of Applicant For purposes of this Certificate: A "Citizen" is: (i) any individual who is a citizen of the United States, by birth, naturalization or as otherwise authorized by law; (ii)any corporation (A) that is organized under the laws of the United States, or of a state of the United States or a political subdivision thereof, Guam, Puerto Rico, the Virgin Islands, American Samoa, the District of Columbia, the Northern Mariana Islands, or any other territory or possession of the United States (each a "State"), (B) of which title to not less than 75% of each class or series of its capital stock is Beneficially Owned, as defined herein, by and vested in Persons, as defined herein, who are Citizens, as defined herein, free from any trust or fiduciary obligation in favor of Non-Citizens, as defined herein, (C) of which not less than 75% of the voting power of the then outstanding shares of capital stock of such corporation entitled to vote generally in the election of directors of such corporation is vested in Citizens free from any contract or understanding through which it is arranged that such voting power may be exercised directly or indirectly on behalf of Non-Citizens, (D) of which there are no other means by which control is conferred upon or permitted to be exercised by Non-Citizens, (E) whose president, chief executive officer (by whatever title), chairman of the Board of Directors and all officers authorized to act in the absence or disability of such Persons are Citizens, and (F) of which more than 50% of that number of its directors necessary to constitute a quorum are Citizens; (iii) any partnership (A) that is organized under the laws of the United States or of a State, (B) all general partners of which are Citizens, and (C) of which not less than a 75% interest is Beneficially Owned and controlled by, and vested in, Persons who are Citizens, free and clear of any trust or fiduciary obligation in favor of any Non-Citizens; (iv)any association (A) that is organized under the laws of the United States or of a State, (B) of which 100% of the members are Citizens, (C) whose president or other chief executive officer (or equivalent position), chairman of the Board of Directors (or equivalent committee or body) and all Persons authorized to act in the absence or disability of such Persons are Citizens, (D) of which not less than 75% of the voting power of such association entitled to vote generally in the election of directors (or equivalent Persons) is vested in Citizens, free and clear of any trust or fiduciary obligation in favor of any Non-Citizens, and (E) of which more than 50% of the number of its directors (or equivalent Persons) necessary to constitute a quorum are Citizens; (v) any limited liability company (A) that is organized under the laws of the United States or of a State, (B) of which not less than 75% of the membership interests are Beneficially Owned by and vested in Persons that are Citizens free from any trust or fiduciary obligation in favor of Non-Citizens and of which the remaining membership interests are Beneficially Owned by and vested in Persons meeting the requirements of 46 U.S.C.ss.12102(a), (C) of which not less than 75% of the voting power is vested in Citizens free from any contract or understanding through which it is arranged that such voting power may be exercised directly or indirectly in behalf of Non-Citizens, (D) of which there are no other means by which control is conferred upon or permitted to be exercised by Non-Citizens, (E) whose president or other chief executive officer (or equivalent position), chairman of the Board of Directors (or equivalent committee or body), managing members (or equivalent), if any, and all Persons authorized to act in the absence or disability of such Persons are Citizens, and (F) of which more than 50% of the number of its directors (or equivalent Persons) necessary to constitute a quorum are Citizens; (vi)any joint venture (if not an association, corporation, partnership, or limited liability company) (A) that is organized under the laws of the United States or of a State, and (B) of which 100% of the members are, or 100% of the equity is Beneficially Owned by, Citizens, free and clear of any trust or fiduciary obligation in favor of any Non-Citizens; and (vii) any trust (A) that is domiciled in and existing under the laws of the United States or of a State, (B) all the trustees of which are Citizens, (C) of which not less than a 75% interest is held for the benefit of Citizens, free and clear of any trust or fiduciary obligation in favor of any Non- Citizens, and (D) each beneficiary of which with an enforceable interest in the trust is a Citizen. The foregoing definition is applicable at all tiers of ownership and in both form and substance at each tier of ownership. A "Non-Citizen" is any Person other than a Citizen. A "Person" is an individual, corporation, partnership, association, trust, joint venture, limited liability company or other entity. A Person shall be deemed to be the "Beneficial Owner" of, or to "Beneficially Own" shares of Common Stock to the extent such Person would be deemed to be the beneficial owner thereof pursuant to Rule 13d-3 promulgated by the Securities and Exchange Commission under the Securities Exchange Act of 1934, as such rule may be amended from time to time. [ Unless and until it is exchanged in whole or in part for Warrant Certificates in definitive form, the Warrants represented by this Certificate may not be transferred except as a whole by the depositary to a nominee of the depositary or by a nominee of the depositary to the depositary or another nominee of the depositary or by the depositary or any such nominee to a successor depositary or a nominee of such successor depositary. The Depository Trust Company ("DTC"), (55 Water Street, New York, New York) shall act as the depositary until a successor shall be appointed by the Company. Unless this certificate is presented by an authorized representative of DTC to the issuer or its agent for registration of transfer, exchange or payment, and any new certificate issued is registered in the name of Cede & Co. or such other name as requested by an authorized representative of DTC (and any payment is made to Cede & Co. or such other entity as is requested by an authorized representative of 2 The Application is to be included only if the warrant is in Definitive Form. DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest herein.]3 The Warrants evidenced by this Warrant Certificate are part of a duly authorized issue of Warrants expiring December 14, 2003 entitling the holder on exercise to receive shares of Common Stock, par value $.01, of the Company (the "Common Stock"), and are issued or to be issued pursuant to a Warrant Agreement, dated as of December 15, 1999 (the "Warrant Agreement"), duly executed and delivered by the Company to State Street Bank and Trust Company, as warrant agent (the "Warrant Agent"), which Warrant Agreement is hereby incorporated by reference herein and made a part of this instrument and is hereby referred to for a description of the rights, limitation of rights, obligations, duties and immunities thereunder of the Warrant Agent, the Company and the holders (the words "holder" or "holders" meaning the registered holder or registered holders) of the Warrants. A copy of the Warrant Agreement may be obtained by the holder hereof upon written request to the Company. Capitalized terms used herein without definition shall have the meanings ascribed to them in the Warrant Agreement. Warrants may be exercised at any time from 9:00 a.m. on or after the Exercisability Date and until 5:00 p.m., New York City Time on the Expiration Date. The holder of Warrants evidenced by this Warrant Certificate may exercise them by surrendering this Warrant Certificate, with the form of election to purchase set forth hereon properly completed and executed, together with payment of the Exercise Price in lawful money of the United States of America at the office of the Warrant Agent. In the event that upon any exercise of Warrants evidenced hereby the number of Warrants exercised shall be less than the total number of Warrants evidenced hereby, there shall be issued to the holder hereof or his assignee a new Warrant Certificate evidencing the number of Warrants not exercised. No adjustment shall be made for any dividends on any Common Stock issuable upon exercise of this Warrant. The Warrant Agreement provides that upon the occurrence of certain events the Exercise Price set forth on the face hereof and/or the number of shares of Common Stock issuable upon the exercise of each Warrant shall, subject to certain conditions, be adjusted. Upon the exercise of any Warrant, the Company may, at its option, pay cash in lieu of the issuance of fractional shares of Common Stock as provided in the Warrant Agreement. Warrant Certificates, when surrendered at the office of the Warrant Agent by the registered holder thereof in person or by legal representative or attorney duly authorized in writing, may be exchanged, in the manner and subject to the limitations provided in the Warrant Agreement, but without payment of any service charge, for another Warrant Certificate or Warrant Certificate's of like tenor evidencing in the aggregate a like number of Warrants. Upon due presentation for registration of transfer of this Warrant Certificate at the office of the Warrant Agent a new Warrant Certificate or Warrant Certificates of like tenor and evidencing in the aggregate a like number of Warrants shall be issued to the transferee(s) in exchange for this Warrant Certificate, subject to the limitations provided in the Warrant Agreement, without charge except for any tax or other governmental charge imposed in connection therewith. The Company and the Warrant Agent may deem and treat the Holder(s) hereof as the absolute owner(s) of this Warrant Certificate (notwithstanding any notation of ownership or - -------- 3 This paragraph is to be included only if the Warrant is in global form. other writing hereon made by anyone), for the purpose of any exercise hereof, of any distribution to the Holder(s) hereof, and for all other purposes, and neither the Company nor the Warrant Agent shall be affected by any notice to the contrary. Neither the Warrants nor this Warrant Certificate entitles any Holder hereof to any rights of a stockholder of the Company. [Form of Election to Purchase] (To Be Executed Upon Exercise Of Warrant) The undersigned hereby irrevocably elects to exercise the right with respect to ______ Warrants, represented by this Warrant Certificate, to receive shares of Common Stock and herewith makes payment therefor in the amount of $___________. The undersigned requests that a certificate for such shares be registered in the name of , whose address is and that such shares be delivered to , whose address is . If said number of shares is less than all of the shares of Common Stock purchasable hereunder, the undersigned requests that a new Warrant Certificate representing the remaining balance of such shares be registered in the name of , whose address is , and that such Warrant Certificate be delivered to , whose address is . . Signature Date: Signature Guaranteed EX-4.5 5 CLASS A WARRANT AGREEMENT ----------------------------------------------------------------------- CLASS A WARRANT AGREEMENT Dated as of December 15, 1999 by and between HVIDE MARINE INCORPORATED and STATE STREET BANK AND TRUST COMPANY ----------------------------------------------------------------------- WARRANT AGREEMENT dated as of December 15, 1999 (the "Agreement") between Hvide Marine Incorporated, a Delaware corporation (the "Company"), and State Street Bank and Trust Company, as warrant agent (the "Warrant Agent"). WHEREAS, the Company proposes to issue Class A Common Stock Purchase Warrants, as hereinafter described (the "Warrants"), to purchase up to an aggregate of 250,000 shares of Common Stock (as defined below) in connection with the Plan of Reorganization of the Company under Chapter 11 of the Bankruptcy Code (the "Plan"), each Warrant entitling the holder thereof to purchase one share of Common Stock. WHEREAS, the Company desires the Warrant Agent to act on behalf of the Company, and the Warrant Agent is willing so to act, in connection with the issuance of Warrant Certificates (as defined below) and other matters as provided herein. NOW, THEREFORE, in consideration of the premises and the mutual agreements herein set forth, and for the purpose of defining the respective rights and obligations of the Company, the Warrant Agent and the Holders (as defined below), the parties hereto agree as follows: SECTION 1. Certain Definitions. As used in this Agreement, the following terms ------------------- shall have the following respective meanings: "Affiliate" of any person means any person directly or indirectly controlling or controlled by or under direct or indirect common control with such person. For purposes of this definition, "control" when used with respect to any person means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise, and the terms "controlling" and "controlled" have meanings correlative to the foregoing. "Commission" means the Securities and Exchange Commission. ---------- "Common Stock" means the common stock, par value $.01 per share, of the Company, and any other capital stock of the Company into which such common stock may be converted or reclassified or that may be issued in respect of, in exchange for, or in substitution for, such common stock by reason of any stock splits, stock dividends, distributions, mergers, consolidations or other like events. "Company" means Hvide Marine Incorporated, a Delaware corporation, and its successors and assigns. "Exchange Act" means the Securities Exchange Act of 1934, as amended. "Exercisability Date" means December 15, 1999, the Effective Date of the Plan. "Exercise Price" means the purchase price per share of Common Stock to be paid upon the exercise of each Warrant in accordance with the terms hereof, which price shall initially be $38.49 per share, subject to adjustment pursuant to Section 12 hereof. "Expiration Date" means December 14, 2003, the date that is four years following the Exercisability Date. "Holder" means a registered holder of Warrants. "person" means any individual, corporation, partnership, limited liability company, joint venture, association, joint-stock company, trust, unincorporated organization or government or any agency or political subdivision thereof. "Plan" means the Debtors' First Amended Joint Plan of Reorganization dated November 1, 1999 filed by Hvide Marine Incorporated, a Florida corporation, and its affiliate and subsidiary debtors. "Securities Act" means the Securities Act of 1933, as amended. "Warrant Agent" means State Street Bank and Trust Company or the successor or successors of such Warrant Agent appointed in accordance with the terms hereof. "Warrant Shares" means the shares of Common Stock issued or issuable upon the exercise of the Warrants. SECTION 2. Appointment of Warrant Agent. The Company hereby appoints the Warrant Agent to act as agent for the Company in accordance with the instructions set forth in this Agreement, and the Warrant Agent hereby accepts such appointment. SECTION 3. Issuance of Warrants: Warrant Certificates. The Warrants will be issued, as instructed by the Company in writing on or prior to the date of issuance pursuant to Section 5 hereof, in the form of (i) one or more global certificates (Each a "Global Warrant" and collectively the "Global Warrants") substantially in the form of Exhibit A attached hereto (including footnote 1 thereto), and (ii) one or more warrants in the form of definitive certificates (each a "Definitive Warrant" and collectively the "Definitive Warrants"), substantially in the form of Exhibit A attached hereto (not including footnote 1 thereto). The Global Warrants shall be deposited on the date of issuance (which shall be the Exercisability Date) or as soon as practicable thereafter with, or on behalf of, The Depository Trust Company (the "Depositary") and registered in the name of Cede & Co., as the Depositary's nominee. Each Global Warrant shall represent such of the outstanding Warrants as shall be specified therein and each shall provide that it shall represent the aggregate amount of outstanding Warrants from time to time endorsed thereon and that the aggregate amount of outstanding Warrants represented thereby may from time to time be reduced or increased, as appropriate. Upon request, a Holder that holds Warrants through the Depositary may receive from the Depositary and the Warrant Agent Definitive Warrants as set forth in Section 6 below. The initial Definitive Warrants shall also be issued on the date of issuance (which shall be the Exercisability Date) or as soon as practicable thereafter, and promptly thereafter shall be delivered by U.S. mail by the Warrant Agent to the holders thereof to the addresses specified in accordance with the written instructions of the Company. Any certificates (each a "Warrant Certificate" and collectively the "Warrant Certificates") evidencing the Global Warrants or the Definitive Warrants to be delivered pursuant to this Agreement shall be substantially in the form set forth in Exhibit A attached hereto. SECTION 4. Execution of Warrant Certificates. Warrant Certificates shall be signed on behalf of the Company by its Chairman of the Board or its President or a Vice President and by its Secretary or an Assistant Secretary under its corporate seal. Each such signature upon the Warrant Certificates may be in the form of a facsimile signature of the present or any future Chairman of the Board, President, Vice President, Secretary or Assistant Secretary and may be imprinted or otherwise reproduced on the Warrant Certificates and for that purpose the Company may adopt and use the facsimile signature of any person who shall have been Chairman of the Board, President, Vice President, Secretary or Assistant Secretary, notwithstanding the fact that at the time the Warrant Certificates shall be countersigned and delivered or disposed of such person shall have ceased to hold such office. The seal of the Company may be in the form of a facsimile thereof and may be impressed, affixed, imprinted or otherwise reproduced on the Warrant Certificates. Warrant Certificates shall be dated the date of countersignature. SECTION 5. Registration and Countersignature. The Warrant Agent, on behalf of the Company, shall number and register the Warrant Certificates in a register as they are issued by the Company. Warrant Certificates shall be manually countersigned by the Warrant Agent and shall not be valid for any purpose unless so countersigned. The Warrant Agent shall, upon written instructions of the Chairman of the Board, the President, a Vice President, the Treasurer or the Controller of the Company, initially countersign, issue and deliver Warrant Certificates representing Warrants entitling the Holders thereof to purchase not more than the number of Warrant Shares referred to above in the first recital hereof and shall countersign and deliver Warrant Certificates as otherwise provided in this Agreement. The Company and the Warrant Agent may deem and treat the Holder(s) of the Warrant Certificates as the absolute owner(s) thereof (notwithstanding any notation of ownership or other writing thereon made by anyone), for all purposes, and neither the Company nor the Warrant Agent shall be affected by any notice to the contrary. SECTION 6. Registration of Transfers and Exchanges. --------------------------------------- (a) Transfer and Exchange of Global Warrants. The transfer and exchange of Global Warrants or beneficial interests therein shall be effected through the Depositary, in accordance with this Warrant Agreement and the procedures of the Depositary therefor. (b) Exchange of a Beneficial Interest in a Global Warrant for a Definitive Warrant. (i) Any person having a beneficial interest in a Global Warrant may upon request exchange such beneficial interest for a Warrant Certificate. Upon receipt by the Warrant Agent of written instructions or such other form of instructions as is customary for the Depositary from the Depositary or its nominee on behalf of any person having a beneficial interest in a Global Warrant, the Warrant Agent shall cause, in accordance with the standing instructions and procedures existing between the Depositary and Warrant Agent, the number of Warrants represented by the Global Warrant to be reduced by the number of Warrants to be represented by the Warrant Certificates to be issued in exchange for the interest in the Global Warrant and, following such reduction, the Company shall execute and the Warrant Agent shall countersign and deliver to the transferee, as the case may be, a Warrant Certificate. (ii)Warrant Certificates issued in exchange for a beneficial interest in a Global Warrant pursuant to this Section 6(b) shall be registered in such names as the Depositary, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Warrant Agent. The Warrant Agent shall deliver such Warrant Certificates to the persons in whose names such Warrants are so registered. (c) Transfer and Exchange of Definitive Warrants. When Definitive Warrants are presented to the Warrant Agent with a request: (i) to register the transfer of such Definitive Warrants; or (ii)to exchange such Definitive Warrants for an equal number of Definitive Warrants of other authorized denominations, the Warrant Agent shall register the transfer or make the exchange as requested if its requirements for such transactions are met; provided, however, that the Definitive Warrants presented or surrendered for registration of transfer or exchange shall be duly endorsed or accompanied by a written instruction of transfer in form satisfactory to the Warrant Agent, duly executed by the Holder thereof or by his attorney, duly authorized in writing. (d) Exchange or Transfer of a Definitive Warrant for a Beneficial Interest in a Global Warrant. Upon receipt by the Warrant Agent of a Definitive Warrant, duly endorsed or accompanied by appropriate instruments of transfer, in form satisfactory to the Warrant Agent, together with written instructions directing the Warrant Agent to make, or to direct the Depositary to make, an 5 endorsement on the Global Warrant to reflect an increase in the number of Warrants represented by the Global Warrant, the Warrant Agent shall cancel such Definitive Warrant and cause, or direct the Depositary to cause, in accordance with the standing instructions and procedures existing between the Depositary and the Warrant Agent, the number of Warrants represented by the Global Warrant to be increased accordingly. If no Global Warrants are then outstanding, the Company shall issue and the Warrant Agent shall countersign a new Global Warrant representing the appropriate number of Warrants. (e) Restrictions on Transfer and Exchange of Global Warrants. Notwithstanding any other provisions of this Warrant Agreement (other than the provisions set forth in subsection (f) of this Section 6), a Global Warrant may not be transferred as a whole except by the Depositary to a nominee of the Depositary or by a nominee of the Depositary to the Depositary or another nominee of the Depositary or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary. (f) Countersigning of Definitive Warrants in Absence of Depositary. If at any time: (i) the Depositary for the Global Warrants notifies the Company that the Depositary is unwilling or unable to continue as Depositary for the Global Warrants and a successor Depositary for the Global Warrants is not appointed by the Company within 90 days after delivery of such notice; or (ii) The Company, in its sole discretion, notifies the Warrant Agent in writing that it elects to cause the issuance of Definitive Warrants under this Warrant Agreement, then the Company shall execute, and the Warrant Agent, upon written instructions signed by two officers of the Company, shall countersign and deliver Definitive Warrants, in an aggregate number equal to the number of Warrants represented by Global Warrants, in exchange for such Global Warrants. (g) Cancellation of Global Warrant. At such time as all beneficial interests in Global Warrants have either been exchanged for Definitive Warrants or canceled, all Global Warrants shall be returned to or retained and canceled by the Warrant Agent. (h) Obligations with respect to Transfers and Exchanges of Warrants. (i) To permit registrations of transfers and exchanges, the Company shall execute and the Warrant Agent is hereby authorized to countersign, in accordance with the provisions of Section 5 and this Section 6, Definitive Warrants and Global Warrants as required pursuant to the provisions of this Section 6. (ii) All Definitive Warrants and Global Warrants issued upon any registration of transfer or exchange of Definitive Warrants or Global Warrants shall be the valid obligations of the Company, entitled to the same benefits under this Warrant Agreement, as the Definitive Warrants or Global Warrants surrendered upon such registration of transfer or exchange. (iii) Prior to due presentment for registration of transfer of any Warrant, the Warrant Agent and the Company may deem and treat the person in whose name any Warrant is registered as the absolute owner of such Warrant and neither the Warrant Agent, nor the Company shall be affected by notice to the contrary. SECTION 7. Terms of Warrants: Exercise of Warrants. Subject to the terms of this Agreement, each Holder shall have the right, which may be exercised commencing at the opening of business on the Exercisability Date and until 5:00 p.m., New York City time, on the Expiration Date to receive from the Company the number of fully paid and nonassessable Warrant Shares which the Holder may at the time be entitled to receive on exercise of such Warrants and payment of the Exercise Price then in effect for such Warrant Shares. A Warrant may be exercised upon surrender to the Company at the principal office of the Warrant Agent of the certificate or certificates evidencing the Warrant to be exercised with the form of election to purchase on the reverse thereof duly filled in and signed, which signature shall be guaranteed by a bank or trust company having an office or correspondent in the United States or a broker or dealer which is a member of a registered securities exchange or the National Association of Securities Dealers, Inc., and upon payment to the Warrant Agent for the account of the Company of the Exercise Price as adjusted as herein provided, for each of the Warrant Shares in respect of which such Warrant is then exercised; provided, that in connection with such exercise, the Company shall be furnished with information regarding the citizenship of the Holder of the Warrant being exercised (which in the case of a Definitive Warrant, shall be furnished by completing the Application for Purchase of Common Stock set forth on the reverse of the Warrant, and in the case of Global Warrants, shall be furnished in such manner established by the Depositary that is acceptable to the Company and complies with the requirements set forth in the Company's Certificate of Incorporation, as amended from time to time); provided, further, no Warrant may be exercised if the Company determines that such exercise shall cause the ownership of its common stock by persons or entities that are not citizens of the United States to exceed the maximum percentage permitted under applicable law as more fully described in the Certificate of Incorporation of the Company, as amended from time to time; provided, further, that in the event that the exercise is not accepted by the Company for such reason, the Holder of the Warrant shall be entitled to the remedies that would have otherwise been available to such Holder under the Company's Certificate of Incorporation, as amended from time to time, had the Holder been a transferee of the Company's common stock that caused the percentage ownership by non-citizens to exceed the maximum permitted percentage under applicable law. Notwithstanding anything to the contrary contained herein, the Holder of a Warrant that is not entitled to exercise such Warrant as a result of the restrictions on ownership by non- citizens shall not have any rights as a stockholder of the Company. The Warrant Agent shall have no duty to evaluate or determine the citizenship of any Holder of any Warrant at any time and shall have no responsibility with respect to the ownership of the Company's common stock by any party or the consequences thereof. Payment of the aggregate Exercise Price shall be made in cash or by certified or official bank check, payable to the order of the Company. The exercise of Warrants by Holders of beneficial interest in Global Warrants shall be effected in accordance with this Agreement and the procedures of the Depositary therefor. Subject to the provisions of Section 8 hereof, upon surrender of Warrants and payment of the Exercise Price as provided above, the Warrant Agent shall thereupon promptly notify the Company, and the Company shall promptly transfer to the Holder of such Warrant Certificate a certificate or certificates for the appropriate number of Warrant Shares to which the Holder is entitled, registered or otherwise placed in, or payable to the order of, such name or names as may be directed in writing by the Holder, and shall deliver such certificate or certificates representing the Warrant Shares and any cash in lieu of any fraction of a share as provided in Section 14 to the person or persons entitled to receive the same. Any such certificate or certificates representing the Warrant Shares shall be deemed to have been issued and any person so designated to be named therein shall be deemed to have become a Holder of record of such Warrant Shares as of the date of the surrender of such Warrants and payment of the Exercise Price. The Warrants shall be exercisable commencing on the Exercisability Date, at the election of the Holders thereof, either in full or from time to time in part and, in the event that a certificate evidencing Warrants is exercised in respect of fewer than all of the Warrant Shares issuable on such exercise at any time prior to the date of expiration of the Warrants, a new certificate evidencing the remaining Warrant or Warrants will be issued, and the Warrant Agent is hereby irrevocably authorized to countersign and to deliver the required new Warrant Certificate or Certificates pursuant to the provisions of this Section and of Section 4 hereof, and the Company, whenever required by the Warrant Agent, will supply the Warrant Agent with Warrant Certificates duly executed on behalf of the Company for such purpose. All Warrant Certificates surrendered upon exercise of Warrants shall be canceled by the Warrant Agent. Such canceled Warrant Certificates shall then be disposed of by the Warrant Agent in a manner satisfactory to the Company. The Warrant Agent shall account promptly to the Company with respect to Warrants exercised and promptly pay to the Company all monies received by the Warrant Agent for the purchase of Warrant Shares through the exercise of such Warrants. The Warrant Agent shall keep copies of this Agreement and any notices given or received hereunder by or from the Company available for inspection by the Holders during normal business hours at its office. The Company shall supply the Warrant Agent from time to time with such numbers of copies of this Agreement as the Warrant Agent may request. SECTION 8. Payment of Taxes. The Company will pay all documentary stamp taxes attributable to the initial issuance of Warrant Shares upon the exercise of Warrants; provided, however, that the Company shall not be required to pay any tax or taxes which may be payable in respect of any transfer involved in the issue of any Warrant Certificates or any certificates for Warrant Shares in a name other than that of the Holder of a Warrant Certificate surrendered for registration or transfer or upon the exercise of a Warrant, and the Company shall not be required to issue or deliver such Warrant Certificates or certificates for Warrant Shares unless or until the person or persons requesting the issuance thereof shall have paid to the Company the amount of such tax or shall have established to the satisfaction of the Company that such tax has been paid. SECTION 9. Mutilated or Missing Warrant Certificates. In case any Warrant Certificate shall be mutilated, lost, stolen or destroyed, the Company may in its discretion issue and the Warrant Agent may countersign, in exchange and substitution for and upon cancellation of the mutilated Warrant Certificate, or in lieu of and substitution for the Warrant Certificate lost, stolen or destroyed, a new Warrant Certificate of like tenor and representing an equivalent number of Warrants, but only upon receipt of evidence reasonably satisfactory to the Company and the Warrant Agent of such loss, theft or destruction of such Warrant Certificate and indemnity, if requested, also reasonably satisfactory to them. Applicants for such substitute Warrant Certificates shall also comply with such other reasonable regulations and pay such other reasonable charges as the Company or the Warrant Agent may prescribe. SECTION 10. Reservation of Warrant Shares. The Company will at all times reserve and keep available, free from preemptive rights, out of the aggregate of its authorized but unissued Common Stock or its authorized and issued Common Stock held in its treasury, for the purpose of enabling it to satisfy any obligation to issue Warrant Shares upon exercise of Warrants, the maximum number of shares of Common Stock which may then be deliverable upon the exercise of all outstanding Warrants. The transfer agent for the Common Stock (the "Transfer Agent") and every subsequent transfer agent for any shares of the Company's capital stock issuable upon the exercise of any of the Warrants will be irrevocably authorized and directed at all times to reserve such number of authorized shares as shall be required for such purpose. The Company will keep a copy of this Agreement on file with the Transfer Agent and with every subsequent transfer agent for any shares of the Company's capital stock issuable upon the exercise of the Warrants. The Warrant Agent is hereby irrevocably authorized to requisition from time to time from such Transfer Agent the stock certificates required to honor outstanding Warrants upon exercise thereof in accordance with the terms of this Agreement. The form of such requisition is attached as Exhibit B. The Company will supply such Transfer Agent with duly executed certificates for such purpose and will provide or otherwise make available any cash which may be payable as provided in Section 14. The Company will furnish such Transfer Agent copies of all notices of adjustment transmitted to each Holder of the Warrants pursuant to Section 15 hereof. The Transfer Agent is ChaseMellon Shareholder Services LLC. The Company will promptly notify the Warrant Agent in writing of any change in the Transfer Agent. Before taking any action which would cause an adjustment pursuant to Section 12 hereof that would reduce the Exercise Price below the then par value (if any) of the Warrant Shares, the Company will take any corporate action which may, in the opinion of its counsel (which may be counsel for or employed by the Company), be necessary in order that the Company may validly and legally issue fully paid and nonassessable Warrant Shares at the Exercise Price as so adjusted. The Company covenants that all Warrant Shares which may be issued upon exercise of Warrants in accordance with the terms of this Agreement (including the payment of the Exercise Price) will, upon issue, be duly and validly issued, fully paid, nonassessable, free of preemptive rights and free from all taxes, liens, charges and security interests with respect to the issue thereof. SECTION 11. Obtaining Stock Exchange Listings. The Company will from time to time take all action which may be necessary so that the Warrant Shares, immediately upon their issuance upon the exercise of Warrants, will be listed on the principal securities exchanges and markets (including, without limitation, the NASDAQ National Market) within the United States of America, if any, on which other shares of Common Stock are then listed. Upon the listing of such Warrant Shares, the Company shall notify the Warrant Agent in writing. The Company will obtain and keep all required permits and records in connection with such listing. Until the Warrant Shares have been listed, the Company may suspend the exercisability of the Warrants. SECTION 12. Adjustment of Exercise Price and Number of Warrant Shares Issuable. The number and kind of shares purchasable upon the exercise of Warrants and the Exercise Price shall be subject to adjustment from time to time as follows: (a) Stock Splits, Combinations, etc. In case the Company shall hereafter (A) subdivide its outstanding shares of Common Stock, (B) combine its outstanding shares of Common Stock into a smaller number of shares, or (C) issue by reclassification of its shares of Common Stock any shares of capital stock of the Company, the Exercise Price in effect and the number of Warrant Shares issuable upon exercise of each Warrant immediately prior to such action shall be adjusted so that the Holder of any Warrant thereafter exercised shall be entitled to receive the number of shares of capital stock of the Company which such Holder would have owned immediately following such action had such Warrant been exercised immediately prior thereto. An adjustment made pursuant to this paragraph shall become effective immediately after the record date in the case of a dividend and shall become effective immediately after the effective date in the case of a subdivision, combination or reclassification. If, as a result of an adjustment made pursuant to this paragraph, the Holder of any Warrant thereafter exercised shall become entitled to receive shares of two or more classes of capital stock of the Company, the Board of Directors of the Company (whose determination shall be conclusive) shall determine the allocation of the adjusted Exercise Price between or among shares of such classes of capital stock. (b) Reclassification, Combinations, Mergers, etc. In case of any reclassification or change of outstanding shares of Common Stock issuable upon exercise of the Warrants (other than as set forth in paragraph (a) above and other than a change in par value, or from par value to no par value, or from no par value to par value or as a result of a subdivision or combination), or in case of any consolidation or merger of the Company with or into another corporation (other than a merger in which the Company is the continuing corporation and which does not result in any reclassification or change of the then outstanding shares of Common Stock or other capital stock issuable upon exercise of the Warrants) or in case of any sale or conveyance to another corporation of the property of the Company as an entirety or substantially as an entirety, then, as a condition of such reclassification, change, consolidation, merger, sale or conveyance, the Company or such a successor or purchasing corporation, as the case may be, shall forthwith make lawful and adequate provision whereby the Holder of each Warrant then outstanding shall have the right thereafter to receive on exercise of such Warrant the kind and amount of shares of stock and other securities and property receivable upon such reclassification, change, consolidation, merger, sale or conveyance by a Holder of the number of shares of Common Stock issuable upon exercise of such Warrant immediately prior to such reclassification, change, consolidation, merger, sale or conveyance. (c) No De Minimis Adjustments. No adjustment in the conversion price need be made unless the adjustment would require an increase or decrease of at least 1% of the conversion price. Any adjustments that are not made shall be carried forward and taken into account in any subsequent adjustment. (d) No Adjustment for Dividends. Except as provided in this Section 12, no adjustment in respect of any dividends or other payments or distributions made to holders of securities issuable upon exercise of Warrants shall be made during the term of a Warrant or upon the exercise of a Warrant. SECTION 13. Statement on Warrants. Irrespective of any adjustment in the number or kind of shares issuable upon the exercise of the Warrants or the Exercise Price, Warrants theretofore or thereafter issued may continue to express the same number and kind of shares as are stated in the Warrants initially issuable pursuant to this Agreement. SECTION 14. Fractional Interest. (a) The Company shall not be required to, but may, at its option, issue fractional shares of Common Stock on the exercise of Warrants. If any fraction of a share of Common Stock would, except for the provisions of this Section, be issuable on the exercise of any Warrant, the Company shall direct the Transfer Agent to pay an amount in cash calculated by it to equal the then current market price per share multiplied by such fraction computed to the nearest whole cent. If more than one Warrant shall be presented for exercise in full at the same time by the same Holder, the number of full shares of Common Stock which shall be issuable upon such exercise shall be computed on the basis of the aggregate number of shares of Common Stock acquirable on exercise of the Warrants so presented. The Holders, by their acceptance of the Warrant Certificates, expressly waive any and all rights to receive any fraction of a share of Common Stock or a stock certificate representing a fraction of a share of Common Stock. (b) For the purpose of any computation of current market price under this Section 14, the current market price per share of Common Stock at any date shall be the closing price on the business day immediately prior to the exercise of the applicable Warrant. The closing price for any day shall be the last reported sale price regular way or, in case no such reported sale takes place on such day, the average of the closing bid and asked prices regular way for such day, in each case (1) on the principal national securities exchange on which the shares of Common Stock are listed or to which such shares are admitted to trading or (2) if the Common Stock is not listed or admitted to trading on a national securities exchange, in the over-the-counter market as reported by NASDAQ National Market or any comparable system or (3) if the Common Stock is not listed on NASDAQ National Market or a comparable system, as furnished by two members of the NASD selected from time to time in good faith by the Board of Directors of the Company for that purpose. In the absence of all of the foregoing, or if for any other reason the current market price per share cannot be determined pursuant to the foregoing provisions of this paragraph (b), the current market price per share shall be the fair market value thereof as determined in good faith by the Board of Directors of the Company. SECTION 15. Notices to Warrant Holders. Upon any adjustment of the Exercise Price pursuant to Section 12, the Company shall promptly thereafter cause to be given to each Holder of Warrants at such Holder's address appearing on the Warrant register and to the Warrant Agent written notice of such adjustment by first-class mail, postage prepaid. The Company's determination with respect to adjustments pursuant to Section 12 shall be conclusive. The Warrant Agent shall not at any time be under any duty or responsibility to any Holder to determine whether any facts exist that may require any adjustment of the number of shares of Common Stock or other stock or property issuable on exercise of the Warrants or the Exercise Price, or with respect to the nature or extent of any such adjustment when made, or with respect to the method employed in making such adjustment or the validity or value (or the kind or amount) of any shares of Common Stock or other stock or property which may be issuable on exercise of the Warrants. The Warrant Agent shall not be responsible for any failure of the Company to make any cash payment or to issue, transfer or deliver any shares of Common Stock or stock certificates or other capital stock or property upon the exercise of any Warrant. In case: (a) the Company shall authorize the issuance to all holders of shares of Common Stock of rights, options or warrants to subscribe for or purchase shares of Common Stock or of any other subscription rights or warrants; or (b) the Company shall authorize the distribution (including upon its liquidation) to all holders of shares of Common Stock of evidences of its indebtedness or assets (including cash dividends or cash distributions payable out of consolidated earnings or earned surplus, but excluding dividends payable in shares of Common Stock or distributions referred to in Section 12 hereof); then the Company shall cause to be filed with the Warrant Agent and shall cause to be given to each Holder of Warrants at such Holder's address appearing on the Warrant register, at least 10 days prior to the applicable record date hereinafter specified, or promptly in the case of events for which there is no record date, by first class mail, postage prepaid, a written notice stating the date as of which the holders of record of shares of Common Stock to be entitled to receive any such rights, options, warrants or distribution is to be determined. The failure to give the notice required by this Section 15 or any defect therein shall not affect the legality or validity of any distribution, right, option or warrant or the vote upon any action. Nothing contained in this Agreement or in any of the Warrant Certificates shall be construed as conferring upon the Holders thereof the right to vote or to consent or to receive notice as shareholders in respect of the meetings of shareholders or the election of directors of the Company or any other matter, or any other rights whatsoever as shareholders of the Company. SECTION 16. Merger, Consolidation or Change of Name of Warrant Agent. Any corporation into which the Warrant Agent may be merged or with which it may be consolidated, or any corporation resulting from any merger or consolidation to which the Warrant Agent shall be a party, or any corporation succeeding to the business of the Warrant Agent, shall be the successor to the Warrant Agent hereunder without the execution or filing of any paper or any further act on the part of any of the parties hereto, provided that such corporation would be eligible for appointment as a successor warrant agent under the provisions of Section 18. Any such successor Warrant Agent shall promptly cause notice of its succession as Warrant Agent to be mailed (by first class mail, postage prepaid) to each Holder at such Holder's last address as shown on the register maintained by the Warrant Agent pursuant to this Agreement. In case at the time such successor to the Warrant Agent shall succeed to the agency created by this Agreement, and in case at that time any of the Warrant Certificates shall have been countersigned but not delivered, any such successor to the Warrant Agent may adopt the countersignature of the original Warrant Agent; and in case at that time any of the Warrant Certificates shall not have been countersigned, any successor to the Warrant Agent may countersign such Warrant Certificates either in the name of the predecessor Warrant Agent or in the name of the successor to the Warrant Agent; and in all such cases such Warrant Certificates shall have the full force and effect provided in the Warrant Certificates and in this Agreement. In case at any time the name of the Warrant Agent shall be changed and at such time any of the Warrant Certificates shall have been countersigned but not delivered, the Warrant Agent whose name has been changed may adopt the countersignature under its prior name, and in case at that time any of the Warrant Certificates shall not have been countersigned, the Warrant Agent may countersign such Warrant Certificates either in its prior name or in its changed name, and in all such cases such Warrant Certificates shall have the full force and effect provided in the Warrant Certificates and in this Agreement. SECTION 17. Warrant Agent. The Warrant Agent undertakes the duties and obligations imposed by this Agreement upon the following terms and conditions, by all of which the Company and the Holders of Warrants, by their acceptance thereof, shall be bound: (a) The statements contained herein and in the Warrant Certificates shall be taken as statements of the Company and the Warrant Agent assumes no responsibility for the correctness of any of the same except such as describe the Warrant Agent or action taken or to be taken by it. The Warrant Agent assumes no responsibility with respect to the distribution of the Warrant Certificates except as herein otherwise provided. (b) The Warrant Agent shall not be responsible for any failure of the Company to comply with any of the covenants contained in this Agreement or in the Warrant Certificates to be complied with by the Company. (c) The Warrant Agent may consult at any time with counsel satisfactory to it (which may be counsel for or employed by the Company) and the Warrant Agent shall incur no liability or responsibility to the Company or to any Holder of any Warrant Certificate in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or the advice of such counsel. (d) The Warrant Agent shall incur no liability or responsibility to the Company or to any Holder of any Warrant Certificate for any action taken in accordance with the provisions of this Agreement in reliance on any Warrant Certificate, certificate of shares, notice, resolution, waiver, consent, order, certificate, or other paper, document or instrument believed by it to be genuine and to have been signed, sent or presented by the proper party or parties. (e) The Company agrees to pay to the Warrant Agent reasonable compensation for all services rendered by the Warrant Agent pursuant to this Agreement, to reimburse the Warrant Agent for all out-of-pocket expenses, including counsel fees, taxes and governmental charges and other charges of any kind and nature reasonably incurred by the Warrant Agent in the execution of this Agreement and to indemnify the Warrant Agent and save it harmless against any and all liabilities, including judgments, reasonable costs and counsel fees, for anything done or omitted by the Warrant Agent pursuant to this Agreement except as a result of its gross negligence or bad faith. The Warrant Agent shall notify the Company of any claim for which it may seek indemnity. The Company shall defend the claim and the Warrant Agent shall cooperate in the defense. The Warrant Agent may have separate counsel and the Company shall pay the reasonable fees and expenses of such counsel. The Company need not pay for any settlement made without its consent. (f) The Warrant Agent shall be under no obligation to institute any action, suit or legal proceeding or to take any other action likely to involve expense unless the Company or one or more Holders of Warrant Certificates shall furnish the Warrant Agent with reasonable security and indemnity for any costs and expenses which may be incurred, but this provision shall not affect the power of the Warrant Agent to take such action as it may consider proper, whether with or without any such security or indemnity. All rights of action under this Agreement or under any of the Warrants may be enforced by the Warrant Agent without the possession of any of the Warrant Certificates or the production thereof at any trial or other proceeding relative thereto, and any such action, suit or proceeding instituted by the Warrant Agent shall be brought in its name as Warrant Agent and any recovery of judgment shall be for the ratable benefit of the Holders of the Warrants, as their respective rights or interests may appear. (g) The Warrant Agent, and any stockholder, director, officer or employee of it, may buy, sell or deal in any of the Warrants or other securities of the Company or become pecuniarily interested in any transaction in which the Company may be interested, or contract with or lend money to the Company or otherwise act as fully and freely as though it were not Warrant Agent under this Agreement. Nothing herein shall preclude the Warrant Agent from acting in any other capacity for the Company or for any other legal entity. (h) The Warrant Agent shall act hereunder solely as agent for the Company, and its duties shall be determined solely by the provisions hereof. The Warrant Agent shall not be liable for anything which it may do or refrain from doing in connection with this Agreement except for its own gross negligence or bad faith. (i) The Warrant Agent shall not at any time be under any duty or responsibility to any Holder of any Warrant Certificate to make or cause to be made any adjustment of the Exercise Price or number of Warrant Shares or other securities or property deliverable as provided in this Agreement, or to determine whether any facts exist which may require any of such adjustments, or with respect to the nature or extent of any such adjustments, when made, or with respect to the method employed in making the same. The Warrant Agent shall not be accountable with respect to the validity or value or the kind or amount of any Warrant Shares or of any securities or property which may at any time be issued or delivered upon the exercise of any Warrant or with respect to whether any such Warrant Shares or other securities will when issued be validly issued and fully paid and nonassessable, and makes no representation with respect thereto. SECTION 18. Resignation and Removal of Warrant Agent; Appointment of Successor. No resignation or removal of the Warrant Agent and no appointment of a successor warrant agent shall become effective until the acceptance of appointment by the successor warrant agent as provided herein. The Warrant Agent may resign its duties and be discharged from all further duties and liability hereunder (except liability arising as a result of the Warrant Agent's own gross negligence or willful misconduct) after giving written notice to the Company. The Company may remove the Warrant Agent upon written notice, and the Warrant Agent shall thereupon in like manner be discharged from all further duties and liabilities hereunder, except as aforesaid. The Warrant Agent shall, at the Company's expense, cause to be mailed (by first class mail, postage prepaid) to each Holder of a Warrant at such Holder's last address as shown on the register of the Company maintained by the Warrant Agent a copy of said notice of resignation or notice of removal, as the case may be. Upon such resignation or removal, the Company shall appoint in writing a new warrant agent. If the Company shall fail to make such appointment within a period of 30 days after it has been notified in writing of such resignation by the resigning Warrant Agent or after such removal, then the resigning Warrant Agent or the Holder of any Warrant may apply to any court of competent jurisdiction for the appointment of a new warrant agent. Any new warrant agent, whether appointed by the Company or by such a court, shall be a corporation doing business under the laws of the United States or any state thereof, in good standing and having a combined capital and surplus of not less than $50,000,000. The combined capital and surplus of any such new warrant agent shall be deemed to be the combined capital and surplus as set forth in the most recent annual report of its condition published by such warrant agent prior to its appointment, provided that such reports are published at least annually pursuant to law or to the requirements of a federal or state supervising or examining authority. After acceptance in writing of such appointment by the new warrant agent, it shall be vested with the same powers, rights, duties and responsibilities as if it had been originally named herein as the Warrant Agent, without any further assurance, conveyance, act or deed; but if for any reason it shall be necessary or expedient to execute and deliver any further assurance, conveyance, act or deed, the same shall be done and shall be legally and validly executed and delivered by the resigning or removed Warrant Agent. Not later than the effective date of any such appointment, the Company shall give notice thereof to the resigning or removed Warrant Agent. Failure to give any notice provided for in this Section, however, or any defect therein, shall not affect the legality or validity of the resignation of the Warrant Agent or the appointment of a new warrant agent, as the case may be. SECTION 19. Notices to Company and Warrant Agent. Any notice or demand authorized by this Agreement to be given or made by the Warrant Agent or by the Holder of any Warrant Certificate to or on the Company shall be sufficiently given or made when and if deposited in the mail, first class or registered, postage prepaid, addressed (until another address is filed in writing by the Company with the Warrant Agent), as follows: Hvide Marine Incorporated 2200 Eller Drive, P.O. Box 13038 Ft. Lauderdale, FL 33316 Telecopy: (954) 527-1772 Telephone: (954) 523-2200 Attention: General Counsel Any notice pursuant to this Agreement to be given by the Company or by the Holder of any Warrant Certificate to the Warrant Agent shall be sufficiently given when and if deposited in the mail, first-class or registered, postage prepaid, addressed (until another address is filed in writing by the Warrant Agent with the Company) to the Warrant Agent as follows: State Street Bank and Trust Company Goodwin Square 225 Asylum Street, 23rd Floor Hartford, CT 06103 Attention: Cauna Silva Telecopy: (860) 244-1881 SECTION 20. Supplements and Amendments. The Company and the Warrant Agent may from time to time supplement or amend this Agreement without the approval of any Holders in order to cure any ambiguity or to correct or supplement any provision contained herein which may be defective or inconsistent with any other provision herein, or to make any other provisions in regard to matters or questions arising hereunder which the Company and the Warrant Agent may deem necessary or desirable and which shall not in any way materially adversely affect the interests of the Holders of Warrant Certificates. Any amendment or supplement to this Agreement that has a material adverse effect on the interests of Holders shall require the written consent of Holders representing a majority of the then outstanding Warrants. The consent of each Holder of a Warrant affected shall be required for any amendment pursuant to which the Exercise Price would be increased or the number of Warrant Shares purchasable upon exercise of Warrants would be decreased (other than pursuant to adjustments provided for in Section 12 hereof). The Warrant Agent shall be entitled to receive and, subject to Section 17, shall be fully protected in relying upon, an officers' certificate and opinion of counsel as conclusive evidence that any such amendment or supplement is authorized or permitted hereunder, that it is not inconsistent herewith, and that it will be valid and binding upon the Company in accordance with its terms. SECTION 21. Successors. All the covenants and provisions of this Agreement by or for the benefit of the Company or the Warrant Agent shall bind and inure to the benefit of their respective successors and assigns hereunder. SECTION 22. Termination. This Agreement (other than any party's obligations with respect to Warrants previously exercised and with respect to indemnification under Section 17) shall terminate at 5:00 p.m., New York City time on the Expiration Date. SECTION 23. Governing Law. THIS AGREEMENT AND EACH WARRANT CERTIFICATE ISSUED HEREUNDER SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE LAWS OF THE STATE OF NEW YORK AND FOR ALL PURPOSES SHALL BE CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF SAID STATE. SECTION 24. Benefits of This Agreement. (a) Nothing in this Agreement shall be construed to give to any Person other than the Company, the Warrant Agent and the Holders of the Warrant Certificates any legal or equitable right, remedy or claim under this Agreement; but this Agreement shall be for the sole and exclusive benefit of the Company, the Warrant Agent and the Holders of the Warrant Certificates. (b) Prior to the exercise of the Warrants, no Holder of a Warrant Certificate, as such, shall be entitled to any rights of a stockholder of the Company, including, without limitation, the right to receive dividends or subscription rights, the right to vote, to consent, to exercise any preemptive right, to receive any notice of meetings of stockholders for the election of directors of the Company or any other matter or to receive any notice of any proceedings of the Company, except as may be specifically provided for herein. The Holders of the Warrants are not entitled to share in the assets of the Company in the event of the liquidation, dissolution or winding up of the Company's affairs. (c) All rights of action in respect of this Agreement are vested in the Holders of the Warrants, and any Holder of any Warrant, without the consent of the Warrant Agent or the Holder of any other Warrant, may, on such Holder's own behalf and for such Holder's own benefit, enforce, and may institute and maintain any suit, action or proceeding against the Company suitable to enforce, or otherwise in respect of, such Holder's rights hereunder, including the right to exercise, exchange or surrender for purchase such Holder's Warrants in the manner provided in this Agreement. SECTION 25. Counterparts. This Agreement may be executed in any number of counterparts and each of such counterparts shall for all purposes be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed, as of the day and year first above written. HVIDE MARINE INCORPORATED By: Name: Title: STATE STREET BANK AND TRUST COMPANY By: Name: Title: EXHIBIT A [Form of Warrant Certificate] [Face] Cusip No. 44851M 11 7 _______ Warrants Class A Warrant Certificate HVIDE MARINE INCORPORATED This Warrant Certificate certifies that , or its registered assigns, is the registered holder of Warrants expiring December 14, 2003 (the "Warrants") to purchase Common Stock, par value $.01 (the "Common Stock"), of Hvide Marine Incorporated, a Delaware corporation (the "Company"). Each Warrant entitles the registered holder upon exercise at any time from 9:00 a.m. on or after the date of the consummation of the Plan of Reorganization of Hvide Marine Incorporated, a Florida corporation, under Chapter 11 of the Bankruptcy Code (the "Exercisability Date") until 5:00 p.m. New York City Time on December 14, 2003, to receive from the Company one fully paid and nonassessable share of Common Stock (the "Warrant Shares") at the initial exercise price (the "Exercise Price") of $38.49 per share payable in lawful money of the United States of America upon surrender of this Warrant Certificate and payment of the Exercise Price at the office or agency of the Warrant Agent, but only subject to the conditions set forth herein and in the Warrant Agreement referred to on the reverse hereof. The Exercise Price and number of Warrant Shares issuable upon exercise of the Warrants are subject to adjustment upon the occurrence of certain events set forth in the Warrant Agreement. No Warrant may be exercised before the Exercisability Date. No Warrant may be exercised after 5:00 p.m., New York City Time on December 14, 2003, and to the extent not exercised by such time such Warrants shall become void. Reference is hereby made to the further provisions of this Warrant Certificate set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as though fully set forth at this place. This Warrant Certificate shall not be valid unless countersigned by the Warrant Agent, as such term is used in the Warrant Agreement. This Warrant Certificate shall be governed by and construed in accordance with the internal laws of the State of New York. IN WITNESS WHEREOF, Hvide Marine Incorporated, a Delaware corporation, has caused this Warrant Certificate to be signed by its President and by its Secretary, each by a signature or a facsimile thereof, and has caused a facsimile of its corporate seal to be affixed hereunto or imprinted hereon. Dated: HVIDE MARINE INCORPORATED By: Name: Title: President By: Name: Title: Secretary [SEAL] Countersigned: State Street Bank and Trust Company - ---------------------- as Warrant Agent By: Authorized Signature [Form of Warrant Certificate] [Reverse] [ Because vessels owned by Hvide Marine Incorporated (the "Company") and its subsidiaries operate in the United States coastwise trades, United States law provides that no more than 25 percent of its stock may be owned or controlled by Non-Citizens, as defined in the Application for Purchase of Common Stock printed below on this Certificate. Under the Articles of Incorporation of the Company, the maximum percentage of the total outstanding shares of common stock of the Company that may be owned by Non-Citizens is 24.99%. Any purported sale, transfer or other disposition to Non-Citizens of shares of common stock which would result in increasing the ownership of shares by Non-Citizens above such maximum permitted percentage shall be ineffective as against the Company to transfer the shares or any voting or other rights in respect thereof, and such transfer shall not be recorded on the books of the Company in any such case, and neither the Company nor the transfer agent for the common stock shall be required to recognize the transferee or purported transferee thereof as a stockholder of the Company for any purpose whatsoever except to the extent necessary to effect any remedy available to the Company. Each share of common stock issued by the Company shall be represented by either CITIZEN SHARE CERTIFICATES or NON- CITIZEN SHARE CERTIFICATES, and shall be subject to the limitations set forth thereon. Any shares represented by CITIZEN SHARE CERTIFICATES held in the names of or for the account of Non-Citizens will have no rights, and the Company may regard any certificate representing such shares, whether or not validly issued, as having been invalidly issued. The Company will furnish to any Warrant holder, upon written request and without charge, copies of the applicable provisions of the Certificate of Incorporation of the Company. Any such request may be addressed to the Company. The shares of common stock to be purchased pursuant to this Warrant will be issued on the books of the Company only if [the Application for Purchase of Common Stock set forth below has been executed by the purchaser and]1 the Company determines that such issuance will not cause the percentage ownership of common stock by Non-Citizens to exceed the maximum permitted percentage. [ APPLICATION FOR PURCHASE OF COMMON STOCK The undersigned (the "Applicant") makes application for the purchase by the Applicant of the number of shares of common stock indicated below and hereby certifies to Hvide Marine Incorporated that: (answer (a), (b) and/or (c) as applicable) -------- 1 This clause to be inserted only if the Warrant is in Definitive form. (a) The Applicant will be the beneficial owner of shares of the common stock of Hvide Marine Incorporated and is o is not o a "Citizen" (check one). (b) The Applicant will hold shares of the common stock of Hvide Marine Incorporated for the benefit of one or more "Persons" who ARE "Citizens." (c) The Applicant will hold shares of the common stock of Hvide Marine Incorporated for the benefit of one or more "Persons" who ARE NOT "Citizens." The Applicant agrees that, on the request of Hvide Marine Incorporated, he will furnish proof in support of this Certificate. The Applicant understands that he has an ongoing obligation to provide the information set forth herein and agrees to provide a new Citizenship Certificate at any time as the facts affecting his citizenship or the citizenship of the beneficial owner(s) for whom he holds Hvide Marine Incorporated common stock change. Hvide Marine Incorporated will provide a blank Citizenship Certificate to the Applicant upon request. IMPORTANT NOTICE THIS APPLICATION CONSTITUTES A BASIS FOR HVIDE MARINE INCORPORATED'S REPRESENTATION TO THE UNITED STATES GOVERNMENT THAT IT IS A CITIZEN WITHIN THE MEANING OF THE SHIPPING ACT, 1916, AS AMENDED. ANY PERSON MAKING A STATEMENT HEREIN WHICH HE KNOWS TO BE FALSE MAY BE PROCEEDED AGAINST UNDER TITLE 18, UNITED STATES CODE, SECTION 1001, WHICH SECTION PRESCRIBES PENALTIES OF UP TO FIVE YEARS IMPRISONMENT OR A FINE OF UP TO $10,000. This Application is dated , . Signature of Applicant For purposes of this Certificate: A "Citizen" is: (i) any individual who is a citizen of the United States, by birth, naturalization or as otherwise authorized by law; (ii) any corporation (A) that is organized under the laws of the United States, or of a state of the United States or a political subdivision thereof, Guam, Puerto Rico, the Virgin Islands, American Samoa, the District of Columbia, the Northern Mariana Islands, or any other territory or possession of the United States (each a "State"), (B) of which title to not less than 75% of each class or series of its capital stock is Beneficially Owned, as defined herein, by and vested in Persons, as defined herein, who are Citizens, as defined herein, free from any trust or fiduciary obligation in favor of Non-Citizens, as defined herein, (C) of which not less than 75% of the voting power of the then outstanding shares of capital stock of such corporation entitled to vote generally in the election of directors of such corporation is vested in Citizens free from any contract or understanding through which it is arranged that such voting power may be exercised directly or indirectly on behalf of Non-Citizens, (D) of which there are no other means by which control is conferred upon or permitted to be exercised by Non-Citizens, (E) whose president, chief executive officer (by whatever title), chairman of the Board of Directors and all officers authorized to act in the absence or disability of such Persons are Citizens, and (F) of which more than 50% of that number of its directors necessary to constitute a quorum are Citizens; (iii) any partnership (A) that is organized under the laws of the United States or of a State, (B) all general partners of which are Citizens, and (C) of which not less than a 75% interest is Beneficially Owned and controlled by, and vested in, Persons who are Citizens, free and clear of any trust or fiduciary obligation in favor of any Non-Citizens; (iv) any association (A) that is organized under the laws of the United States or of a State, (B) of which 100% of the members are Citizens, (C) whose president or other chief executive officer (or equivalent position), chairman of the Board of Directors (or equivalent committee or body) and all Persons authorized to act in the absence or disability of such Persons are Citizens, (D) of which not less than 75% of the voting power of such association entitled to vote generally in the election of directors (or equivalent Persons) is vested in Citizens, free and clear of any trust or fiduciary obligation in favor of any Non-Citizens, and (E) of which more than 50% of the number of its directors (or equivalent Persons) necessary to constitute a quorum are Citizens; (v) any limited liability company (A) that is organized under the laws of the United States or of a State, (B) of which not less than 75% of the membership interests are Beneficially Owned by and vested in Persons that are Citizens free from any trust or fiduciary obligation in favor of Non- Citizens and of which the remaining membership interests are Beneficially Owned by and vested in Persons meeting the requirements of 46 U.S.C.ss.12102(a), (C) of which not less than 75% of the voting power is vested in Citizens free from any contract or understanding through which it is arranged that such voting power may be exercised directly or indirectly in behalf of Non- Citizens, (D) of which there are no other means by which control is conferred upon or permitted to be exercised by Non-Citizens, (E) whose president or other chief executive officer (or equivalent position), chairman of the Board of Directors (or equivalent committee or body), managing members (or equivalent), if any, and all Persons authorized to act in the absence or disability of such Persons are Citizens, and (F) of which more than 50% of the number of its directors (or equivalent Persons) necessary to constitute a quorum are Citizens; (vi) any joint venture (if not an association, corporation, partnership, or limited liability company) (A) that is organized under the laws of the United States or of a State, and (B) of which 100% of the members are, or 100% of the equity is Beneficially Owned by, Citizens, free and clear of any trust or fiduciary obligation in favor of any Non-Citizens; and (vii) any trust (A) that is domiciled in and existing under the laws of the United States or of a State, (B) all the trustees of which are Citizens, (C) of which not less than a 75% interest is held for the benefit of Citizens, free and clear of any trust or fiduciary obligation in favor of any Non-Citizens, and (D) each beneficiary of which with an enforceable interest in the trust is a Citizen. The foregoing definition is applicable at all tiers of ownership and in both form and substance at each tier of ownership. A "Non-Citizen" is any Person other than a Citizen. A "Person" is an individual, corporation, partnership, association, trust, joint venture, limited liability company or other entity. A Person shall be deemed to be the "Beneficial Owner" of, or to "Beneficially Own" shares of Common Stock to the extent such Person would be deemed to be the beneficial owner thereof pursuant to Rule 13d-3 promulgated by the Securities and Exchange Commission under the Securities Exchange Act of 1934, as such rule may be amended from time to time. ]2 [ Unless and until it is exchanged in whole or in part for Warrant Certificates in definitive form, the Warrants represented by this Certificate may not be transferred except as a whole by the depositary to a nominee of the depositary or by a nominee of the depositary to the depositary or another nominee of the depositary or by the depositary or any such nominee to a successor depositary or a nominee of such successor depositary. The Depository Trust Company ("DTC"), (55 Water Street, New York, New York) shall act as the depositary until a successor shall be appointed by the Company. Unless this certificate is presented by an authorized representative of DTC to the issuer or its agent for registration of transfer, exchange or payment, and any new certificate issued is registered in the name of Cede & Co. or such other name as requested by an authorized representative of DTC (and any payment is made to Cede & Co. or such other entity as is requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR -------- 2 The Application is to be included only if the warrant is in Definitive Form. OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest herein.]3 The Warrants evidenced by this Warrant Certificate are part of a duly authorized issue of Warrants expiring December 14, 2003 entitling the holder on exercise to receive shares of Common Stock, par value $.01, of the Company (the "Common Stock"), and are issued or to be issued pursuant to a Warrant Agreement, dated as of December 15, 1999 (the "Warrant Agreement"), duly executed and delivered by the Company to State Street Bank and Trust Company, as warrant agent (the "Warrant Agent"), which Warrant Agreement is hereby incorporated by reference herein and made a part of this instrument and is hereby referred to for a description of the rights, limitation of rights, obligations, duties and immunities thereunder of the Warrant Agent, the Company and the holders (the words "holder" or "holders" meaning the registered holder or registered holders) of the Warrants. A copy of the Warrant Agreement may be obtained by the holder hereof upon written request to the Company. Capitalized terms used herein without definition shall have the meanings ascribed to them in the Warrant Agreement. Warrants may be exercised at any time from 9:00 a.m. on or after the Exercisability Date and until 5:00 p.m., New York City Time on the Expiration Date. The holder of Warrants evidenced by this Warrant Certificate may exercise them by surrendering this Warrant Certificate, with the form of election to purchase set forth hereon properly completed and executed, together with payment of the Exercise Price in lawful money of the United States of America at the office of the Warrant Agent. In the event that upon any exercise of Warrants evidenced hereby the number of Warrants exercised shall be less than the total number of Warrants evidenced hereby, there shall be issued to the holder hereof or his assignee a new Warrant Certificate evidencing the number of Warrants not exercised. No adjustment shall be made for any dividends on any Common Stock issuable upon exercise of this Warrant. The Warrant Agreement provides that upon the occurrence of certain events the Exercise Price set forth on the face hereof and/or the number of shares of Common Stock issuable upon the exercise of each Warrant shall, subject to certain conditions, be adjusted. Upon the exercise of any Warrant, the Company may, at its option, pay cash in lieu of the issuance of fractional shares of Common Stock as provided in the Warrant Agreement. Warrant Certificates, when surrendered at the office of the Warrant Agent by the registered holder thereof in person or by legal representative or attorney duly authorized in writing, may be exchanged, in the manner and subject to the limitations provided in the Warrant Agreement, but without payment of any service charge, for another Warrant Certificate or Warrant Certificate's of like tenor evidencing in the aggregate a like number of Warrants. Upon due presentation for registration of transfer of this Warrant Certificate at the office of the Warrant Agent a new Warrant Certificate or Warrant Certificates of like tenor and evidencing in the aggregate a like number of Warrants shall be issued to the transferee(s) in exchange for this Warrant Certificate, subject to the limitations provided in the Warrant Agreement, without charge except for any tax or other governmental charge imposed in connection therewith. The Company and the Warrant Agent may deem and treat the Holder(s) hereof as the absolute owner(s) of this Warrant Certificate (notwithstanding any notation of ownership or other writing hereon made by anyone), for the purpose of any exercise hereof, of any distribution to the Holder(s) hereof, and for all other purposes, and neither the Company nor the Warrant Agent shall be affected by any notice to the contrary. Neither the Warrants nor - -------- 3 This paragraph is to be included only if the Warrant is in global form. this Warrant Certificate entitles any Holder hereof to any rights of a stockholder of the Company. [Form of Election to Purchase] (To Be Executed Upon Exercise Of Warrant) The undersigned hereby irrevocably elects to exercise the right with respect to ______ Warrants, represented by this Warrant Certificate, to receive shares of Common Stock and herewith makes payment therefor in the amount of $___________. The undersigned requests that a certificate for such shares be registered in the name of , whose address is and that such shares be delivered to , whose address is . If said number of shares is less than all of the shares of Common Stock purchasable hereunder, the undersigned requests that a new Warrant Certificate representing the remaining balance of such shares be registered in the name of , whose address is , and that such Warrant Certificate be delivered to , whose address is . . Signature Date: Signature Guaranteed A8 EXHIBIT B [Form of Common Stock Requisition] [date] [Transfer Agent Name] [Transfer Agent Address] Re: Hvide Marine Incorporated Class A Warrant Agreement, dated as of December 15, 1999 Gentlemen: Reference is made to that certain Class A Warrant Agreement, dated as of December 15, 1999 (the "Warrant Agreement"), by and between Hvide Marine Incorporated, a Delaware corporation (the "Company"), and State Street Bank and Trust Company, as warrant agent (the "Warrant Agent"). Pursuant to Section 10 of the Warrant Agreement, the Warrant Agent hereby requests that _________________, as transfer agent for the Company (the "Transfer Agent"), provide the Warrant Agent with duly executed certificates representing shares of common stock of the Company as set forth on Appendix 1 hereto. Such shares are to be issued in respect of Warrants (as defined in the Warrant Agreement) exercised pursuant to the Warrant Agreement. If this request is in respect of a Definitive Warrant (as defined in the Warrant Agreement) attached is a copy of the Application to Purchase Common Stock of each holder of the Warrants set forth on Appendix 1, indicating the citizenship of such holder. The Warrant Agent hereby certifies that it has received for the account of the Company the Exercise Price (as defined in the Warrant Agreement) in respect of each Warrant exercised for shares of common stock being requested hereunder. STATE STREET BANK AND TRUST COMPANY By: Name: Title: EX-5.1 6 OPINION OF DYER ELLIS & JOSEPH February 14, 2000 Securities and Exchange Commission 450 Fifth Street, N.W. Washington, D.C. 20549 Attn: William Tolbert, Assistant Director Division of Corporation Finance Re: Hvide Marine Incorporated Ladies and Gentlemen: On behalf of Hvide Marine Incorporated, we are filing a registration statement on Form S-3 relating to resales of shares of HMI's common stock and warrants. HMI filed a petition under chapter 11 of the U.S. Bankruptcy Code on September 9, 1999, and its reorganization plan became effective on December 15, 1999. As I discussed with William Tolbert on January 24, HMI will not be eligible to use Form S-3 until it files its Form 10-K for 1999 on or about March 31 due to the eligibility requirement of Instruction I.A.5 of the form. Mr. Tolbert indicated that he would accept the filing on Form S-3 before the Form 10-K is filed based upon our undertaking not to request that it be declared effective until after the Form 10-K is filed. Please contact me at 202-944-3049 or Michael Joseph at 202-944-3065 if you have any questions or comments. Very truly yours, John F. Kearney -----END PRIVACY-ENHANCED MESSAGE-----