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CLASS A WARRANT AGREEMENT
Dated as of __________________, 1999
by and between
HVIDE MARINE INCORPORATED
and
[WARRANT AGENT]
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WARRANT AGREEMENT dated as of _________________, 1999 (the
"Agreement") between Hvide Marine Incorporated, a Delaware corporation (the
"Company"), and _________________, as warrant agent (the "Warrant Agent").
WHEREAS, the Company proposes to issue Class A Common Stock
Purchase Warrants, as hereinafter described (the "Warrants"), to purchase up to
an aggregate of 250,000 shares of Common Stock (as defined below) in connection
with the Plan of Reorganization of the Company under Chapter 11 of the
Bankruptcy Code (the "Plan"), each Warrant entitling the holder thereof to
purchase one share of Common Stock.
WHEREAS, the Company desires the Warrant Agent to act on
behalf of the Company, and the Warrant Agent is willing so to act, in connection
with the issuance of Warrant Certificates (as defined below) and other matters
as provided herein.
NOW, THEREFORE, in consideration of the premises and the
mutual agreements herein set forth, and for the purpose of defining the
respective rights and obligations of the Company, the Warrant Agent and the
Holders (as defined below), the parties hereto agree as follows:
SECTION 1. Certain Definitions. As used in this Agreement, the
following terms shall have the following respective meanings:
"Affiliate" of any person means any person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such person. For purposes of this definition, "control" when used
with respect to any person means the power to direct the management and policies
of such person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise, and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Commission" means the Securities and Exchange Commission.
"Common Stock" means the common stock, par value $.01 per
share, of the Company, and any other capital stock of the Company into which
such common stock may be converted or reclassified or that may be issued in
respect of, in exchange for, or in substitution for, such common stock by reason
of any stock splits, stock dividends, distributions, mergers, consolidations or
other like events.
"Company" means Hvide Marine Incorporated, a Delaware
corporation, and its successors and assigns.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exercisability Date" means 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.
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"Expiration Date" means 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 ____________________ 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 in the form of 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). The Global
Warrants shall be deposited on the date of issuance (which shall be the
Effective Date of the Plan, as that term is defined therein, 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 may
receive from the Depositary and the Warrant Agent Warrants in definitive form
(each a "Definitive Warrant" and collectively the "Definitive Warrants"),
substantially in the form of Exhibit A attached hereto (not including footnote 1
thereto) as set forth in Section 6 below. 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
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facsimile signature of any person who shall have been Chairman of the Board,
President, Vice President, Secretary or Assistant Secretary, notwithstanding the
fact that at the time the Warrant Certificates shall be countersigned and
delivered or disposed of such person shall have ceased to hold such office. The
seal of the Company may be in the form of a facsimile thereof and may be
impressed, affixed, imprinted or otherwise reproduced on the Warrant
Certificates.
Warrant Certificates shall be dated the date of
countersignature.
SECTION 5. Registration and Countersignature. The Warrant
Agent, on behalf of the Company, shall number and register the Warrant
Certificates in a register as they are issued by the Company.
Warrant Certificates shall be manually countersigned by the
Warrant Agent and shall not be valid for any purpose unless so countersigned.
The Warrant Agent shall, upon written instructions of the Chairman of the Board,
the President, a Vice President, the Treasurer or the Controller of the Company,
initially countersign, issue and deliver Warrant Certificates representing
Warrants entitling the Holders thereof to purchase not more than the number of
Warrant Shares referred to above in the first recital hereof and shall
countersign and deliver Warrant Certificates as otherwise provided in this
Agreement.
The Company and the Warrant Agent may deem and treat the
Holder(s) of the Warrant Certificates as the absolute owner(s) thereof
(notwithstanding any notation of ownership or other writing thereon made by
anyone), for all purposes, and neither the Company nor the Warrant Agent shall
be affected by any notice to the contrary.
SECTION 6. Registration of Transfers and Exchanges.
(a) Transfer and Exchange of Global Warrants. The transfer and
exchange of Global Warrants or beneficial interests therein shall be effected
through the Depositary, in accordance with this Warrant Agreement and the
procedures of the Depositary therefor.
(b) Exchange of a Beneficial Interest in a Global Warrant for
a Definitive Warrant.
(i) Any person having a beneficial interest in a Global
Warrant may upon request exchange such beneficial interest for a Warrant
Certificate. Upon receipt by the Warrant Agent of written instructions or such
other form of instructions as is customary for the Depositary from the
Depositary or its nominee on behalf of any person having a beneficial interest
in a Global Warrant, the Warrant Agent shall cause, in accordance with the
standing instructions and procedures existing between the Depositary and Warrant
Agent, the number of Warrants represented by the Global Warrant to be reduced by
the number of Warrants to be represented by the Warrant Certificates to be
issued in exchange for the interest in the Global Warrant and, following such
reduction, the Company shall execute and the Warrant Agent shall countersign and
deliver to the transferee, as the case may be, a Warrant Certificate.
(ii) Warrant Certificates issued in exchange for a beneficial
interest in a Global Warrant pursuant to this Section 6(b) shall be registered
in such names as the Depositary,
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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 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,
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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. 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
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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 concurrently 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
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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 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 Warrant Agent
hereby agrees that it will not issue any stock certificates delivered hereunder
other than upon the exercise of Warrants in accordance with the terms of this
Agreement and, promptly after the issuance of any such stock certificates, to
notify the Transfer Agent of such issuance.
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.
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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
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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 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.
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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
11
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, 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 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
12
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 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 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
13
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
0000 Xxxxx Xxxxx, X.X. Xxx 00000
Xx. Xxxxxxxxxx, XX 00000
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
Attention: General Counsel
In case the Company shall fail to maintain such office or
agency or shall fail to give such notice of the location or of any change in the
location thereof, presentations may be made and notices and demands may be
served at the principal office of the Warrant Agent.
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:
=======================
=======================
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
14
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.
15
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.
[Signature Page Follows]
16
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:
[WARRANT AGENT]
By:
Name:
Title:
17
EXHIBIT A
[Form of Warrant Certificate]
[Face]
No. Warrants
Class A Warrant Certificate
HVIDE MARINE INCORPORATED
This Warrant Certificate certifies that , or its registered
assigns, is the registered holder of Warrants expiring ____________, 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 _____________,
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 $______ 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 _________, 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:
A1
HVIDE MARINE INCORPORATED
By:
Name:
Title: President
By:
Name:
Title: Secretary
[SEAL]
Countersigned:
----------------------
as Warrant Agent
By:
Authorized Signature
A2
[Form of Warrant Certificate]
[Reverse]
[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 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx) shall act as the depositary until a successor shall be
appointed by the Company and the Warrant Agent. 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 OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as
the registered owner hereof, Cede & Co., has an interest herein.]1
The Warrants evidenced by this Warrant Certificate are
part of a duly authorized issue of Warrants expiring ___________, 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 ______________, 1999
(the "Warrant Agreement"), duly executed and delivered by the Company to
_______________, 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
--------
1 This paragraph is to be included only if the Warrant is in global form.
A3
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 this Warrant Certificate entitles any Holder
hereof to any rights of a stockholder of the Company.
A4
[Form of Election to Purchase]
(To Be Executed Upon Exercise Of Warrant)
The undersigned hereby irrevocably elects to exercise the
right, represented by this Warrant Certificate, to receive shares of
Common Stock and herewith makes payment therefor. 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
