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CLASS A WARRANT AGREEMENT
Dated as of December 15, 1999
by and between
HVIDE MARINE INCORPORATED
and
STATE STREET BANK AND TRUST COMPANY
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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.
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"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.
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(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
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
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
▇▇▇▇▇▇▇ Square
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
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
▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ 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 ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇) 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
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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: