-----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, KyQfdVOXkyh31ornm62/ZMsDOpxPrTX0SXaS2U59Opw8Dx3C+GynPAhstBvIM2Pg IsZGUmuIdWNrRZDo7QRr7w== 0000925328-97-000021.txt : 19970612 0000925328-97-000021.hdr.sgml : 19970612 ACCESSION NUMBER: 0000925328-97-000021 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 6 FILED AS OF DATE: 19970611 EFFECTIVENESS DATE: 19970611 SROS: NASD 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: FL FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-28949 FILM NUMBER: 97622200 BUSINESS ADDRESS: STREET 1: 2200 ELLER DR BUILDING 27 STREET 2: PO BOX 13038 CITY: FORT LAUDERDALE STATE: FL ZIP: 33316 BUSINESS PHONE: 3055232200 MAIL ADDRESS: STREET 1: 2200 ELLER DRIVE BLDG 27 STREET 2: 2200 ELLER DRIVE BLDG 27 CITY: FT LAUDERDALE STATE: FL ZIP: 33316 S-8 1 FORM S-8 FOR HVIDE MARINE INCORPORATED As filed with the Securities and Exchange Commission on June 9, 1997 Registration No. 333- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 HVIDE MARINE INCORPORATED (Exact name of issuer as specified in its charter) FLORIDA 65-0524593 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification Number) 2200 ELLER DRIVE, P.O. BOX 13038 FORT LAUDERDALE, FLORIDA 33316 (954) 523-2200 (Address of Principal Executive Offices and Zip Code) BOARD OF DIRECTORS STOCK COMPENSATION PLAN KEY EMPLOYEE STOCK COMPENSATION PLAN (Full title of the plans) GENE DOUGLAS, ESQ. VICE PRESIDENT-LEGAL & GENERAL COUNSEL 2200 ELLER DRIVE, P.O. BOX 13038 FORT LAUDERDALE, FLORIDA 33316 (954) 523-2200 (Telephone number, including area code, of agent for service) COPY TO: MICHAEL JOSEPH, ESQ. DYER ELLIS & JOSEPH 600 NEW HAMPSHIRE AVENUE, N.W. WASHINGTON, D.C. 20037 1 CALCULATION OF REGISTRATION FEE
Title of securities Amount to Proposed maximum Proposed maximum Amount of to be registered be registered offering price aggregate offering registration fee per share(1) price(1) Class A Common Stock, par value $.001 per share................... 95,000 $24.50 $2,327,500 $705.30 - ---------------------------------- ------------------ -------------------- --------------------- ---------------------
(1) Pursuant to Rule 457(c) and (h), the proposed maximum aggregate offering price per share and the proposed maximum aggregate offering price are estimated solely for purposes of calculating the registration fee, and are based upon the average high and low prices of the Class A Common Stock as reported by the Nasdaq Stock Market on June 9, 1997. 2 PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE. The registrant hereby incorporates by reference into this registration statement the following documents filed by the registrant with the Securities and Exchange Commission: (a) Annual Report on Form 10-K for the year ended December 31, 1996; (b) Quarterly Report on Form 10-Q for the quarter ended March 31, 1997; and (c) The description of the registrant's Class A Common Stock, $.001 par value, incorporated by reference to the registrant's Registration Statement on Form S-1, Commission File No. 33-78166; and All documents subsequently filed by the registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 (the "Exchange Act"), prior to the filing of a post-effective amendment that indicates that all securities offered have been sold or that deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this registration statement and to be a part hereof from the date of filing of such documents. ITEM 4. DESCRIPTION OF SECURITIES. Not applicable. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. Not applicable. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS. The Company's Articles of Incorporation provide that the Company shall indemnify each director and officer of the Company to the fullest extent permitted from time to time by the laws of the State of Florida or any other applicable laws as presently or hereafter in effect. Section 607.0850 of the Florida Business Corporation Act currently provides as follows: (1) A corporation shall have power to indemnify any person who was or is a party to any proceeding (other than an action by, or in the right of, the corporation), by reason of the fact that he is or was a director, officer, employee, or agent of the corporation or is or was serving at the request of the corporation as a director, officer, employee, or agent of another corporation, partnership, joint venture, trust, or other enterprise against liability incurred in connection with such proceeding, including any appeal thereof, if he acted in good faith and in a manner he reasonably believed to be in, or not opposed to, the best interests of the corporation and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any proceeding by judgment, 3 order, settlement, or conviction or upon a plea of nolo contendere or its equivalent shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he reasonably believed to be in, or not opposed to, the best interests of the corporation or, with respect to any criminal action or proceeding, had reasonable cause to believe that his conduct was unlawful. (2) A corporation shall have power to indemnify any person, who was or is a party to any proceeding by or in the right of the corporation to procure a judgment in its favor by reason of the fact that he is or was a director, officer, employee, or agent of the corporation or is or was serving at the request of the corporation as a director, officer, employee, or agent of another corporation, partnership, joint venture, trust, or other enterprise, against expenses and amounts paid in settlement not exceeding, in the judgment of the board of directors, the estimated expense of litigating the proceeding to conclusion, actually and reasonably incurred in connection with the defense or settlement of such proceeding, including any appeal thereof. Such indemnification shall be authorized if such person acted in good faith and in a manner he reasonably believed to be in, or not opposed to, the best interests of the corporation, except that no indemnification shall be made under this subsection in respect of any claim, issue, or matter as to which such person shall have been adjudged to be liable unless, and only to the extent that, the court in which such proceeding was brought, or any other court of competent jurisdiction, shall determine upon application that, despite the adjudication of liability but in view of all circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which such court shall deem proper. (3) To the extent that a director, officer, employee, or agent of a corporation has been successful on the merits or otherwise in defense of any proceeding referred to in subsection (1) or subsection (2), or in defense of any claim, issue, or matter therein, he shall be indemnified against expenses actually and reasonably incurred by him in connection therewith. (4) Any indemnification under subsection (1) or subsection (2), unless pursuant to a determination by a court, shall be made by the corporation only as authorized in the specific case upon a determination that indemnification of the director, officer, employee, or agent is proper in the circumstances because he has met the applicable standard of conduct set forth in subsection (1) or subsection (2). Such determination shall be made: (a) By the board of directors by a majority vote of a quorum consisting of directors who were not parties to such proceeding; (b) If such a quorum is not obtainable or, even if obtainable, by majority vote of a committee duly designated by the board of directors (in which directors who are parties may participate) consisting solely of two or more directors not at the time parties to the proceeding; (c) By independent legal counsel: 4 1. Selected by the board of directors prescribed in paragraph (a) or the committee prescribed in paragraph (b); or 2. If a quorum of the directors cannot be obtained for paragraph (a) and the committee cannot be designated under paragraph (b) selected by majority vote of the full board of directors (in which directors who are parties may participate); or (d) By the stockholders by a majority vote of a quorum consisting of stockholders who were not parties to such proceeding or, if no such quorum is obtainable, by a majority vote of stockholders who were not parties to such proceeding. (5) Evaluation of the reasonableness of expenses and authorization of indemnification shall be made in the same manner as the determination that indemnification is permissible. However, if the determination of permissibility is made by independent legal counsel, persons specified by paragraph (4)(c) shall evaluate the reasonableness of expenses and may authorize indemnification. (6) Expenses incurred by an officer or director in defending a civil or criminal proceeding may be paid by the corporation in advance of the final disposition of such proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if he is ultimately found not to be entitled to indemnification by the corporation pursuant to this section. Expenses incurred by other employees and agents may be paid in advance upon such terms or conditions that the board of directors deems appropriate. (7) The indemnification and advancement of expenses provided pursuant to this section are not exclusive, and a corporation may make any other or further indemnification or advancement of expenses of any of its directors, officers, employees, or agents, under any bylaw, agreement, vote of stockholders or disinterested directors, or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office. However, indemnification or advancement of expenses shall not be made to or on behalf of any director, officer, employee, or agent if a judgment or other final adjudication establishes that his actions, or omissions to act, were material to the cause of action so adjudicated and constitute: (a) A violation of the criminal law, unless the director, officer, employee, or agent had reasonable cause to believe his conduct was lawful or had no reasonable cause to believe his conduct was unlawful; (b) A transaction from which the director, officer, employee, or agent derived an improper personal benefit; (c) In the case of a director, a circumstance under which the liability provisions of s. 607.0834 are applicable; or 5 (d) Willful misconduct or a conscious disregard for the best interests of the corporation in a proceeding by or in the right of the corporation to procure a judgment in its favor or in a proceeding by or in the right of a stockholder. (8) Indemnification and advancement of expenses as provided in this section shall continue as, unless otherwise provided when authorized or ratified, to a person who has ceased to be a director, officer, employee, or agent and shall inure to the benefit of the heirs, executors, and administrators of such a person, unless otherwise provided when authorized or ratified. (9) Unless the corporation's articles of incorporation provide otherwise, notwithstanding the failure of a corporation to provide indemnification, and despite any contrary determination of the board or of the stockholders in the specific case, a director, officer, employee, or agent of the corporation who is or was a party to a proceeding may apply for indemnification or advancement of expenses, or both, to the court conducting the proceeding, to the circuit court, or to another court of competent jurisdiction. On receipt of an application, the court, after giving any notice that it considers necessary, may order indemnification and advancement of expenses, including expenses incurred in seeking court-ordered indemnification or advancement of expenses, if it determines that: (a) The director, officer, employee, or agent is entitled to mandatory indemnification under subsection (3), in which case the court shall also order the corporation to pay the director reasonable expenses incurred in obtaining court-ordered indemnification or advancement of expenses; (b) The director, officer, employee, or agent is entitled to indemnification or advancement of expenses, or both, by virtue of the exercise by the corporation of its power pursuant to subsection (7); or (c) The director, officer, employee, or agent is fairly and reasonably entitled to indemnification or advancement of expenses, or both, in view of all the relevant circumstances, regardless of whether such person met the standard of conduct set forth in subsection (1), subsection (2), or subsection (7). (10) For purposes of this section, the term "corporation" includes, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger, so that any person who is or was a director, officer, employee, or agent of a constituent corporation, or is or was serving at the request of a constituent corporation as a director, officer, employee, or agent of another corporation, partnership, joint venture, trust, or other enterprise, is in the same position under this section with respect to the resulting or surviving corporation as he would have with respect to such constituent corporation if its separate existence had continued. (11) For purposes of this section: 6 (a) The term "other enterprises" includes employee benefit plans; (b) The term "expenses" includes counsel fees, including those for appeal; (c) The term "liability" includes obligations to pay a judgment, settlement, penalty, fine (including an excise tax assessed with respect to any employee benefit plan), and expenses actually and reasonably incurred with respect to a proceeding; (d) The term "proceeding" includes any threatened, pending, or completed action, suit, or other type of proceeding, whether civil, criminal, administrative, or investigative, and whether formal or informal; (e) The term "agent" includes a volunteer; (f) The term "serving at the request of the corporation" includes any service as a director, officer, employee, or agent of the corporation that imposes duties on such persons, including duties relating to an employee benefit plan and its participants or beneficiaries; and (g) The term "not opposed to the best interest of the corporation" describes the actions of a person who acts in good faith and in a manner he reasonably believes to be in the best interests of the participants and beneficiaries of an employee benefit plan. (12) A corporation shall have power to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee, or agent of the corporation or is or was serving at the request of the corporation as a director, officer, employee, or agent of another corporation, partnership, joint venture, trust, or other enterprise against any liability asserted against him and incurred by him in any such capacity or arising out of his status as such, whether or not the corporation would have the power to indemnify him against such liability under the provisions of this section. The Registrant has purchased an insurance policy that provides for indemnification of the Registrant's executive officers and directors for liability resulting from their negligence, error, omission or breach of duty while acting in their capacities as executive officers and directors on any matter claimed against them by reason of their being executive officers and directors. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not applicable. 7 ITEM 8. EXHIBITS. 4.1* Form of Class A Common Stock Certificate (Domestic) 4.2* Form of Class A Common Stock Certificate (Foreign) 5.1 Opinion of counsel as to the legality of securities being registered 10.1 Hvide Marine Incorporated Board of Directors Stock Compensation Plan 10.2 Hvide Marine Incorporated Key Employee Stock Compensation Plan 23.1 Consent of Ernst & Young LLP 23.2 Consent of Dyer Ellis & Joseph (included as part of Exhibit 5.1) 24.1 Power of Attorney * Filed as exhibit of same number to the Registrant's Registration Statement on Form S-1, File No. 33-78166, and incorporated herein by reference. ITEM 9. UNDERTAKINGS. (a) The undersigned registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: (i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; (ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement; and (iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement. (2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement 8 relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (b) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue. 9 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this amendment to the registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Washington, D.C. on the 9th day of June, 1997. HVIDE MARINE INCORPORATED By: * J. Erik Hvide Chairman, President and Chief Executive Officer Pursuant to the requirements of the Securities Act of 1933, this amendment to the registration statement has been signed by the following persons in the capacities and on the dates indicated.
SIGNATURE TITLE DATE * Chairman of the Board, President, Chief June 9, 1997 - ----------------------- J. Erik Hvide Executive Officer and Director (principal executive officer) * Executive Vice President, Chief Financial June 9, 1997 - ----------------------- John H. Blankley Officer and Director * Controller (principal accounting officer) June 9, 1997 - ----------------------- John J. Krumenacker * Executive Vice President and Director June 9, 1997 - ----------------------- Eugene F. Sweeney * Director June 9, 1997 - ----------------------- Robert B. Calhoun, Jr. * Director June 9, 1997 - ----------------------- Gerald Farmer * Director June 9, 1997 - ----------------------- Jean Fitzgerald
10 * Director June 9, 1997 - ----------------------- John J. Lee * Director June 9, 1997 - ----------------------- Walter C. Mink * Director June 9, 1997 - ----------------------- Robert Rice * Director June 9, 1997 - ----------------------- Raymond B. Vickers
*By: /S/ MICHAEL JOSEPH Michael Joseph Attorney-in-Fact 11 INDEX TO EXHIBITS EXHIBIT SEQUENTIALLY NUMBER DESCRIPTION OF DOCUMENT NUMBERED PAGE 5.1 Opinion of counsel as to the legality of securities being registered 10.1 Hvide Marine Incorporated Board of Directors Stock Compensation Plan 10.2 Hvide Marine Incorporated Key Employee Stock Compensation Plan 23.1 Consent of Ernst & Young LLP 23.2 Consent of Dyer Ellis & Joseph (included as part of Exhibit 5.1) 24.1 Power of Attorney EX-5.1 2 OPINION OF DEJ Exhibit 5.1 June 10, 1997 Hvide Marine Incorporated 2200 Eller Drive Ft. Lauderdale, FL 33316 Ladies and Gentlemen: We have acted as counsel for Hvide Marine Incorporated, a Florida corporation (the"Company"), in connection with the issuance and sale pursuant to the Company's registration statement on Form S- 8 (the "Registration Statement") of up to an aggregate of 95,000 shares of its Class A Common Stock, par value $0.001 per share (the "Shares") that may be issued from time to time pursuant to the Company's Board of Directors Stock Compensation Plan and Key Employee Stock Compensation Plan (collectively, the "Plans"). Based upon our examination of such corporate records and other documents and such questions of law as we have deemed necessary and appropriate, we are of the opinion that the Shares have been duly authorized and, when sold as provided in the Plans, will be validly issued, fully paid, and non-assessable. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. Very truly yours, Dyer Ellis & Joseph PC EX-10.1 3 DIRECTORS STOCK COMPENSATION PLAN Exhibit 10.1 HVIDE MARINE INCORPORATED BOARD OF DIRECTORS STOCK COMPENSATION PLAN 1. PURPOSE The purpose of the Hvide Marine Incorporated Board of Directors Stock Compensation Plan (the "Plan") is to provide outside directors of Hvide Marine Incorporated or any of its affiliates or subsidiaries (the "Company") the opportunity to acquire an equity interest in the Company. Operationally, the Plan permits Participants to convert all or a portion of the Participant's director's fees into stock of the Company. A Participant's interest under the Plan shall be expressed in shares of the Company's common stock ("Shares"). 2. TERM AND PLAN YEAR The Plan shall be effective when adopted by the Board of Directors of the Company (the "Board"), subject to approval of the shareholders of the Company within twelve months thereafter. The Plan shall remain in effect until terminated by the Board. The issuance of Shares under the Plan may be conditioned upon the effectiveness of a registration statement covering the Shares. The Plan Year shall be the period January 1 through December 31. 3. ELIGIBILITY AND PARTICIPATION All members of the Board who are not employees of the Company will be eligible to participate in the Plan. A Board member will become a Participant by submitting a Stock Election within 30 days after the Plan becomes effective and thereafter prior to the first day of the Plan Year. 4. CONVERSION OF FEES INTO STOCK (a) STOCK ELECTIONS: Each eligible Board member may elect to convert a portion of his or her fees for attendance at Board and committee meetings ("Director Fees") into Shares. The Stock Elections (i) must be in writing, and (ii) must designate the percentage of the fees to be converted into Shares. The Stock Election may change from Plan Year to Plan Year, but the Stock Election for a particular Plan Year may not be changed after the beginning of the Plan Year to which the election relates. Except in the initial year, - 1 - each Stock Election must be made prior to the first day of the Plan Year in which Director Fees will be paid. A Stock Election will continue in effect for subsequent Plan Years unless the Stock Election is changed or revoked on or before the first day of the next Plan Year. (b) CALCULATION OF SHARES: Amounts subject to a Stock Election will be converted into Shares as of the last day of the month in which such amount would have been paid in cash. The number of Shares that a Participant will receive shall equal one hundred twenty-five percent (125%) of the amount subject to the Stock Election divided by the Fair Market Value (as defined in Section 8 hereof) of a Share on the last day of the month in which such amount would have been paid in cash but for the Stock Election pursuant to Section 4(a). Such calculations shall be carried to three decimal places. 5. PAYMENT OF SHARES The Company shall issue and deliver to the Participant Share certificates for payment of Shares as soon as practicable following the date on which the number of Shares is calculated. Fractional Shares shall be paid in cash. 6. SHARES SUBJECT TO THE PLAN The aggregate number of Shares that may be subject to issuance under the Plan shall not exceed 30,000, subject to adjustment as provided in Section 9 of this Plan. 7. ADJUSTMENTS AND REORGANIZATION In the event of any stock dividend, stock split, combination or exchange of Shares, merger, consolidation, spin-off, recapitalization or other distribution (other than normal cash dividends) of Company assets to stockholders, or any other change affecting Shares or the price of Shares, such proportionate adjustments, if any, as the Committee in its sole discretion may deem appropriate to reflect such change shall be made with respect to the aggregate number of Shares that may be issued under the Plan. Any adjustments described in the preceding sentence shall be carried to three decimal places. 8. FAIR MARKET VALUE - 2 - Fair Market Value of a Share for all purposes under the Plan shall mean, for any particular date, (i) for any period during which the Share shall be listed for trading on a national securities exchange or the National Association of Securities Dealers Automated Quotation System ("NASDAQ"), the closing price per share of Stock on such exchange or the NASDAQ closing bid price as of the close of such trading day or (ii) for any period during which the Share shall not be listed for trading on a national securities exchange or NASDAQ, the market price per Share as determined by a qualified appraiser selected by the Board. If Fair Market Value is to be determined on a day when the markets are not open, Fair Market Value on that day shall be the Fair Market Value on the most recent preceding day when the markets were open. 9. TERMINATION OR AMENDMENT OF PLAN (a) IN GENERAL: The Board may, at any time by resolution, terminate, suspend or amend this Plan. If the Plan is terminated by the Board, no further Stock Elections may be made under the Plan, but any Director Fees subject to a Stock Election that have not yet been paid to the Participant at the time of the termination of the Plan will be paid in accordance with the terms and conditions of the Plan. (b) WRITTEN CONSENTS: No amendment may adversely affect the right of any Participant to have his Director Fees paid in Shares unless such Participant consents in writing to such amendment. 10. COMPLIANCE WITH LAWS (a) The obligations of the Company to issue any Shares under this Plan shall be subject to all applicable laws, rules and regulations and the obtaining of all such approvals by governmental agencies as may be deemed necessary or appropriate by the Board. (b) Subject to the provisions of Section 9, the Board may take such changes in the design and administration of this Plan as may be necessary or appropriate to comply with the rules and regulations of any government authority. 11. MISCELLANEOUS (a) UNFUNDED PLAN: Nothing contained in this Plan and no action taken pursuant to the provisions hereof shall create or be construed to create a trust of any kind, or a fiduciary relationship between the Company and Participant, the Participant's designee or any other person. The Plan shall be unfunded with respect to the Company's obligation to pay any amounts due, and a Participant's rights to receive any payment with respect to - 3 - any Stock Election shall be not greater than the rights of an unsecured general creditor of the Company. (b) ADMINISTRATION: The Committee shall administer the Plan, including the adoption of rules or the preparation of forms to be used in its operation, and to interpret and apply the provisions hereof as well as any rules which it may adopt. In addition, the Committee may appoint other individuals, firms or organizations to act as agent of the Company carrying out administrative duties under the Plan. The decisions of the Committee, including, but not limited to, interpretations and determinations of amounts due under this Plan, shall be final and binding on all parties. (c) GOVERNING LAW: The validity, construction and effect of the Plan and any actions taken or relating to the Plan, shall be determined in accordance with the laws of the State of Florida without regard to its conflict of law rules, and applicable federal law. (d) RIGHTS AS A STOCKHOLDER: A Participant shall have no rights as a stockholder until the Participant actually becomes a holder of record of Shares distributed with respect thereto. (e) NOTICES: All notices or other communications made or given pursuant to this Plan shall be in writing and shall be sufficiently made or given if hand delivered, or if mailed by certified mail, addressed to the Participant at the address contained in the records of the Company or to the Company at its principal office, as applicable. IN WITNESS WHEREOF, HVIDE MARINE INCORPORATED SHAREHOLDERS HAVE ADOPTED THE FOREGOING INSTRUMENT AT THE ANNUAL MEETING THIS 19TH DAY OF MAY, 1997. - 4 - EX-10.2 4 KEY EMPLOYEE STOCK COMPENSATION PLAN Exhibit 10.2 HVIDE MARINE INCORPORATED KEY EMPLOYEE STOCK COMPENSATION PLAN 1. PURPOSE The purposes of the Hvide Marine Incorporated Key Employee Stock Compensation Plan (the "Plan") are (i) to provide key employees of Hvide Marine Incorporated or any of its affiliates or subsidiaries (the "Company") the opportunity to acquire an equity interest in the Company (ii) to attract and retain well-qualified individuals, and (iii) to align the interests of management and the stockholders of the Company. Operationally, the Plan permits Participants to defer receipt of a portion of the Participant's Annual Incentive Plan payment. A Participant's interest under the Plan shall be expressed in Stock Units equivalent to shares of the Company's common stock ("Shares"). 2. TERM AND PLAN YEAR The Plan shall be effective when adopted by the Board of Directors of the Company (the "Board"), subject to approval of the shareholders of the Company within twelve months thereafter. The Plan shall remain in effect until terminated by the Board. The issuance of Shares under the Plan may be conditioned upon the effectiveness of a registration statement covering the Shares. The Plan Year shall be the period January 1 through December 31. 3. ELIGIBILITY AND PARTICIPATION Within 15 days after the Plan becomes effective and thereafter, annually by December 1, the Compensation Committee of the Board (the "Committee") will determine those key employees who are eligible to become Participants. An eligible key employee will become a Participant by submitting a Deferral Election within 30 days after the Plan becomes effective and thereafter prior to the first day of the Plan Year. A key employee's eligibility to submit a Deferral Election does not carry over from year to year; each key employee must have his or her eligibility to submit a Deferral Election determined annually by the Committee. 4. DEFERRAL OF ANNUAL INCENTIVE (a) DEFERRAL ELECTIONS: Subject to the limits established by the Committee, each eligible key employee may elect to defer the payment of all or part of any Annual Incentive Plan payment which otherwise would be paid for a Plan Year. The Deferral Elections (i) must be in writing, - 1 - and (ii) must designate the percentage of the Annual Incentive Plan payment to be deferred for the Plan Year (the "Deferral Percentage"). The Deferral Percentage may change from Plan Year to Plan Year, but the deferral percentage for a particular Plan Year may not be changed after the beginning of the Plan Year to which the election relates. No Deferral Percentage may be for more than 50% of that year's Annual Incentive Plan payment. Except in the initial year, each Deferral Election must be made prior to the first day of the Plan Year for which the Annual Incentive Plan payment will be paid. (b) CREDITING DEFERRAL AMOUNTS TO ACCOUNTS: Amounts deferred pursuant to Section 4(a) shall be credited in Stock Units as of the last day of the month in which such amount would have been paid in cash to a bookkeeping reserve account maintained by the Company ("Stock Unit Account"). The Stock Unit Account shall have two components - a Basic Account and a Premium Account. The number of Stock Units credited to a Participant's Basic Account shall equal one hundred percent (100%) of the deferred cash amount divided by the Fair Market Value (as defined in Section 10 hereof) of a Share on the last day of the month in which such deferral amount would have been paid but for the Deferral Election pursuant to Section 4(a). The number of Stock Units credited to a Participant's Premium Account shall equal 25% of the deferred cash amount, divided by the Fair Market Value (as defined in Section 10 hereof) of a Share on the last day of the month in which such deferral amount would have been paid but for the Deferral Election pursuant to Section 4(a). Such calculations shall be carried to three decimal places. (c) The value of the Stock Units credited to the Participant's Stock Unit Account shall constitute the Participant's entire benefit under this Plan. 5. ADDITIONS TO DEFERRED ACCOUNTS As of each dividend payment date, with respect to Shares, there shall be credited to each Participant's Stock Unit Account certain Dividend Units which will be an additional number of Stock Units equal to (i) the per-share dividend payable with respect to a Share on such date multiplied by (ii) the number of Stock Units held in the Stock Unit Account as of the close of business on the first business day prior to such dividend payment date and, if the dividend is payable in cash or property other than Shares, divided by (iii) the Fair Market Value of a Share on such business day. For purposes of this Section 5, "dividend" shall include all dividends, whether normal or special, and whether payable in cash, Shares or other property. The calculation of additional Stock Units shall be carried to three decimal places. 6. VESTING OF ACCOUNTS (a) BASIC ACCOUNT: All Stock Units credited to a Participant's Basic Account (and the Dividend Units attributable thereto) pursuant to this Plan shall be at all times fully vested and nonforfeitable. - 2 - (b) PREMIUM ACCOUNT: All Stock Units credited to a Participant's Premium Account pursuant to this Plan (and the Dividend Units attributable thereto) shall become one hundred percent (100 %) vested and nonforfeitable on the first day of the Plan Year in which will occur the third anniversary of the date the Stock Units are credited to the Participant's Premium Account, provided that the Participant is then an employee of the Company. In the event that the Participant dies, becomes disabled, retires at the normal retirement age specified in the Company's qualified retirement plan or terminates employment for any reason within twenty- four (24) months following a Change of Control, all unvested Stock Units and Dividend Units will immediately become one hundred percent (100%) vested and nonforfeitable. Additionally, the Committee, in its sole discretion, may accelerate a Participant's vested percent if it determines that such action would be in the best interest of the Company. 7. PAYMENT OF ACCOUNTS (a) TIME OF DISTRIBUTION: Payment of the vested Stock Units to a Participant shall be made not earlier than the first day nor later than the last day of the first month of the Plan Year in which will occur the third anniversary of the date the Stock Units in question were credited to the Participant's Stock Unit Account. Notwithstanding the preceding sentence, in the event of the death of the Participant before the Participant's Stock Unit Account has been fully distributed, an immediate lump sum distribution of the Stock Unit Account shall be made to the Participant's Beneficiary or Beneficiaries in the proportions designated by such Participant. (b) FORM OF DISTRIBUTION: The total number of vested whole Stock Units in the Participant's Stock Unit Account shall be paid to the Participant in an equal number of whole Shares. The Company shall issue and deliver to the Participant Share certificates for payment of Stock Units as soon as practicable following the date on which the Stock Units, or any portion thereof, become payable. 8. SHARES SUBJECT TO THE PLAN The aggregate number of Shares that may be subject to issuance under the Plan shall not exceed 65,000, subject to adjustment as provided in Section 9 of this Plan. 9. ADJUSTMENTS AND REORGANIZATION In the event of any stock dividend, stock split, combination or exchange of Shares, merger, consolidation, spin-off, recapitalization or other distribution (other than normal cash dividends) of Company assets to stockholders, or any other change affecting Shares or the price of Shares, such proportionate adjustments, if any, as the Committee in its sole discretion may deem appropriate to reflect such change shall be made with respect to the aggregate number of Shares that may be - 3 - issued under the Plan, and each Stock Unit or Dividend Unit held in the Stock Unit Accounts. Any adjustments described in the preceding sentence shall be carried to three decimal places. 10. FAIR MARKET VALUE Fair Market Value of a Share for all purposes under the Plan shall mean, for any particular date, (i) for any period during which the Share shall be listed for trading on a national securities exchange or the National Association of Securities Dealers Automated Quotation System ("NASDAQ"), the closing price per share of Stock on such exchange or the NASDAQ closing bid price as of the close of such trading day or (ii) for any period during which the Share shall not be listed for trading on a national securities exchange or NASDAQ, the market price per Share as determined by a qualified appraiser selected by the Board. If Fair Market Value is to be determined on a day when the markets are not open, Fair Market Value on that day shall be the Fair Market Value on the most recent preceding day when the markets were open. 11. TERMINATION OR AMENDMENT OF PLAN (a) IN GENERAL: The Board may, at any time by resolution, terminate, suspend or amend this Plan. If the Plan is terminated by the Board, no deferrals may be credited after the effective date of such termination, but previously credited Stock Units and Dividend Units shall remain outstanding in accordance with the terms and conditions of the Plan. (b) WRITTEN CONSENTS: No amendment may adversely affect the right of any Participant to have Dividend Units credited to a Stock Unit Account or to receive any Shares pursuant to the payout of such accounts, unless such Participant consents in writing to such amendment. 12. COMPLIANCE WITH LAWS (a) The obligations of the Company to issue any Shares under this Plan shall be subject to all applicable laws, rules and regulations and the obtaining of all such approvals by governmental agencies as may be deemed necessary or appropriate by the Board. (b) Subject to the provisions of Section 11, the Board may take such changes in the design and administration of this Plan as may be necessary or appropriate to comply with the rules and regulations of any government authority. 13. MISCELLANEOUS - 4 - (a) UNFUNDED PLAN: Nothing contained in this Plan and no action taken pursuant to the provisions hereof shall create or be construed to create a trust of any kind, or a fiduciary relationship between the Company and Participant, the Participant's designee or any other person. The Plan shall be unfunded with respect to the Company's obligation to pay any amounts due, and a Participant's rights to receive any payment with respect to any Stock Unit Account shall be not greater than the rights of an unsecured general creditor of the Company. The Company may establish a Rabbi Trust to accumulate Shares to fund the obligations of the Company pursuant to this Plan. Payment from the Rabbi Trust of amounts due under the terms of this Plan shall satisfy the obligation of the Company to make such payment. In no event shall any Participant be entitled to receive payment of an amount from the Company that the Participant received from the Rabbi trust. (b) ASSIGNMENT; ENCUMBRANCES: The right to have amounts credited to a Stock Unit Account and the right to receive payment with respect to such Stock Unit Account under this Plan are not assignable or transferable and shall not be subject to any encumbrances, liens, pledges, or charges of the Participant or to claims of the Participant's creditors. Any attempt to assign, transfer, hypothecate or attach any rights with respect to or derived from any Stock Unit shall be null and void and of no force and effect whatsoever. (c) DESIGNATION OF BENEFICIARIES: A Participant may designate in writing a beneficiary or beneficiaries to receive any distribution under the Plan which is made after the Participant's death; provided, however, that if at the time any such distribution is due, there is no designation of a beneficiary in force or if any person (other than a trustee or trustees) as to whom a beneficiary designation was in force at the time of such Participant's death shall have died before the payment became due and the Participant has failed to provide such beneficiary designation for any person or persons to take in lieu of such deceased person, the person or persons entitled to receive such distribution (or part thereof, as the case may be) shall be the participant's executor or administrator. (d) CHANGE OF CONTROL: A "Change of Control" shall be deemed to have occurred if (i) a tender offer shall be made and consummated of the ownership of 30% or more of the outstanding voting securities of the Company, (ii) the Company shall be merged or consolidated with another corporation and as a result of such merger or consolidation less than 70% of the outstanding voting securities of the surviving or resulting corporation shall be owned in the aggregate by the former shareholders of the Company, other than affiliates (within the meaning of the Securities Exchange Act of 1934) of any party to such merger or consolidation, (iii) the Company shall sell substantially all of its assets to another corporation which corporation is not wholly owned by the company, or (iv) a person, within the meaning of Section 3(a)(9) or of Section 13(d)(3) (as in effect on the date hereof) of the Securities Exchange Act of 1934, shall acquire 30% or more of the outstanding voting securities of the Company (whether directly, indirectly, beneficially or of record). For purposes hereof, ownership of voting securities shall take into account and shall include ownership as determined by applying the provisions of Rule - 5 - 13d-3(d)(1)(i) (as in effect on the date hereof) pursuant to the Securities and Exchange Act of 1934. (e) ADMINISTRATION: The Committee shall administer the Plan, including the adoption of rules or the preparation of forms to be used in its operation, and to interpret and apply the provisions hereof as well as any rules which it may adopt. In addition, the Committee may appoint other individuals, firms or organizations to act as agent of the Company carrying out administrative duties under the Plan. Except as may be provided in a Rabbi Trust, the decisions of the Committee, including, but not limited to, interpretations and determinations of amounts due under this Plan, shall be final and binding on all parties. (f) TAX WITHHOLDING. An individual who receives payment from the Plan shall pay to the Company, or make arrangements satisfactory to the Committee, regarding the payment of any federal, state or local taxes of any kind required by law to be withheld with respect to such payment. The individual shall make such payment or arrangement no later than the date as of which he is scheduled to receive such payment. The obligations of the Company under the Plan shall be conditioned on such payment or arrangement and the Company, to the extent permitted by law, shall have the right to deduct any such taxes from any distribution of any kind otherwise due to the individual. Unless otherwise determined by the Committee, any withholding obligation of the Company on amounts received under the Plan may be settled with shares of common stock of the Company that are part of the distribution that gives rise to the withholding requirement. (g) GOVERNING LAW: The validity, construction and effect of the Plan and any actions taken or relating to the Plan, shall be determined in accordance with the laws of the State of Florida without regard to its conflict of law rules, and applicable federal law. (h) RIGHTS AS A STOCKHOLDER: A Participant shall have no rights as a stockholder with respect to a Stock Unit until the Participant actually becomes a holder of record of Shares distributed with respect thereto. (i) NOTICES: All notices or other communications made or given pursuant to this Plan shall be in writing and shall be sufficiently made or given if hand delivered, or if mailed by certified mail, addressed to the Participant at the address contained in the records of the Company or to the Company at its principal office, as applicable. IN WITNESS WHEREOF, HVIDE MARINE INCORPORATED SHAREHOLDERS HAVE ADOPTED THE FOREGOING INSTRUMENT AT THE ANNUAL MEETING THIS 19TH DAY OF MAY, 1997. - 6 - EX-23.1 5 CONSENT OF ERNST & YOUNG Exhibit 23.1 Consent of Independent Certified Public Accountants We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the Key Employee Stock Plan and Board of Directors Stock Compensation Plan of Hvide Marine Incorporated dated June 9, 1997 of our report dated February 20, 1997, except for the eighth paragraph of Note 3, as to which the date is March 25, 1997 with respect to the consolidated financial statements of Hvide Marine Incorporated included in its Annual Report (Form 10-K) for the year ended December 31, 1996, filed with the Securities and Exchange Commission. Miami, Florida June 9, 1997 ERNST & YOUNG LLP EX-24.1 6 POWER OF ATTORNEY Exhibit 24.1 POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that Hvide Marine Incorporated, a corporation organized under the laws of the State of Florida (the "Corporation"), and the undersigned officers and directors of the Corporation, individually and in their respective capacities indicated below, hereby make, constitute and appoint Michael Joseph and John F. Kearney its and their true and lawful attorneys, their separate or joint signatures sufficient to bind, with power of substitution, to execute, deliver and file in its or their behalf, and in each person's respective capacity or capacities as shown below, a registration statement on Form S-8 under the Securities Act of 1933, any and all documents in support of or supplemental to said registration statement by the Corporation; and the Corporation and each said person hereby grant to said attorneys full power and authority to do and perform each and every act and thing whatsoever as any one of said attorneys may deem necessary or advisable to carry out the full intent of this Power of Attorney to the same extent and with the same effect as the Corporation or the undersigned officers and directors of the Corporation might or could do personally in its or their capacity or capacities as aforesaid; and the Corporation and each of said persons hereby ratify, confirm and approve all acts and things that any one of said attorneys may do or cause to be done by virtue of this Power of Attorney and its signature or their signatures as the same may be signed by any one of said attorneys to said registration statement and any and all documents in support of or supplemental to said registration statement and any and all amendments thereto. Dated as of June 10, 1997. Hvide Marine Incorporated Attest: /s/ GENE DOUGLAS By: /s/ J. ERIK HVIDE Gene Douglas J. Erik Hvide Secretary Chairman, President, and Chief Executive Officer /s/ J. ERIK HVIDE /s/ JOHN H. BLANKLEY J. Erik Hvide John H. Blankley Chairman of the Board of Directors, President, Executive Vice President -- Chief Chief Executive Officer and Director Financial Officer, and Director (Principal Executive Officer) /s/ JOHN J. KRUMENACKER /s/ EUGENE F. SWEENEY John J. Krumenacker Eugene F. Sweeney Controller Executive Vice President and Director (Principal Accounting Officer)
/s/ ROBERT B. CALHOUN, JR. /s/ GERALD FARMER Robert B. Calhoun, Jr. Gerald Farmer Director Director /s/ JEAN FITZGERALD /s/ JOHN J. LEE Jean Fitzgerald John J. Lee Director Director /s/ WALTER C. MINK /s/ ROBERT RICE Walter C. Mink Robert Rice Director Director /s/ RAYMOND B. VICKERS Raymond B. Vickers Director
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