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EXHIBIT 99(d)
PRICE VESTED RESTRICTED STOCK OPTION AWARD AGREEMENT
BETWEEN
TEAM, INC. AND XXXXXX X. XXXX
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TEAM, INC.
PRICE VESTED RESTRICTED STOCK OPTION AWARD AGREEMENT
("PVOS")
THIS PRICE VESTED RESTRICTED STOCK OPTION AWARD AGREEMENT (the
"Agreement") is made effective as of November 2, 1998 between Team, Inc., a
Texas corporation (the "Company"), and XXXXXX XXXX (the "Option Holder").
WHEREAS, Hawk and the Company have entered into an employment agreement the
("Employment Agreement") which is dated as of the Grant Date which provides in
section 5.b. thereof for the grant of an option (the "Option" or "PVO Option")
to purchase 200,000 shares ("Shares") of the common stock of the Company, $0.30
par value subject among other things to a vesting schedule with respect to the
exercise of such options ; and,
WHEREAS, the Employment Agreement provides that Hawk's right to exercise the PVO
Option will fully vest immediately in the event that: (i) Hawk's employment with
the Company is terminated pursuant to Sections 8.a. or 8c. of the Employment
Agreement or (ii) a "Change of Control" occurs while Hawk is an employee of the
Company in a transaction which is not recommended by the Company's Board of
Directors (the aforesaid events which give rise to immediate vesting shall be
referred to herein as an "Accelerating Event");
NOW, THEREFORE, in consideration of the premises and the covenants contained
herein, the receipt and sufficiency and adequacy of which are hereby
acknowledged, the parties agree as follows:
1. GRANT OF OPTION. Subject to the terms and conditions of this
Agreement, the Company, with the unanimous authorization and approval of its
Board of Directors, hereby grants to Hawk effective as of the Grant Date this
PVO Option to purchase 200,000 Shares at a price of $3.625 per share (the
"Option Price") which is the mean of the opening price ($3.50) and the closing
price of the Shares as traded on the American Stock Exchange on the Grant Date.
This Agreement and the purchase of Shares hereunder is not intended to be and
should not be interpreted to qualify as an Incentive Stock Option as that term
is used in Section 422 of the Internal Revenue Code of 1986, as amended.
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2. OPTION PERIOD. The PVO Option granted herein may be exercised in
whole or in part at any time prior to the termination of the Option Period as
determined pursuant to Section 5 below, subject however to the limitation that
said PVO Option shall be exercisable in increments ratably as set forth in
Exhibit A hereto (the "Vesting Schedule"); provided, however, that
notwithstanding the Vesting Schedule, this PVO Option shall become fully vested
with respect to all Shares covered by this Agreement upon the occurrence of an
Accelerating Event; and, provided further, the Board of Directors of the
Company, in its sole discretion, may waive the Vesting Schedule and, upon
written notice to the Option Holder, accelerate the earliest date or dates in
which the Option granted hereunder is exercisable. The PVO Option granted by
this Agreement is the Option described in Section 5.c of the Employment
Agreement.
3. METHOD FOR EXERCISING THE OPTION. The vested portion of the Option
may be exercised in whole or in part only by delivery in person or through
certified or registered mail to the Company at its principal office in Alvin,
Texas (attention: Corporate Secretary) of written notice specifying the Option
that is being exercised and the number of Shares with respect to which the
Option is being exercised. The notice must be accompanied by payment of the
Option Price for the portion of the Option being exercised. Payment of this
portion of the Option Price for the Shares shall be made in full by any of the
following methods or any combination of the following methods:
(a) In cash or by certified or cashier's check payable to
Team, Inc.;
(b) The delivery to the Company of certificates representing
the number of Shares then owned by the Option Holder, the Fair Market Value
(defined in Section 11(i) below) of which equals the Option Price of the Shares
purchased pursuant to the Option, properly endorsed for transfer to the Company.
(For purposes of this Agreement, the Fair Market Value of any Shares delivered
in payment of the Option Price upon exercise of the Option shall be the Fair
Market Value as of the exercise date, and the exercise date shall be the day of
delivery of the certificates for the Shares used as payment of the Option
Price); or
(c) The delivery to the Company of a properly executed notice
of exercise together with irrevocable instructions to a broker to deliver
promptly to the Company, in payment of the Option Price, the amount of the cash
proceeds of the sale of Shares or a loan from the broker to the Option Holder
sufficient, in each case, to pay the Option Price, and in a form satisfactory to
the Corporate Secretary.
Upon such notice to the Corporate Secretary and payment in
full of the amount of the Option Price being exercised, the exercise of the
Option shall be deemed to be effective, and a properly executed certificate or
certificates representing the Shares so purchased shall be issued by the Company
and delivered to the Option Holder or the agent designated by the Option Holder.
4. ADJUSTMENTS.
(a) In the event that the outstanding Shares are hereafter
increased or decreased or changed into or exchanged for a different
number or kind of shares or other securities of the Company or of
another corporation, by reason of a recapitalization, reclassification,
stock split-up, combination of shares, or dividend
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or other distribution payable in capital stock, appropriate adjustment
shall be made by the Board in the number and kind of shares as to which
outstanding Option, or portions thereof then unexercised, shall be
exercisable, to the end that the proportionate interest of the holder
of the Option shall, to the extent practicable, be maintained as before
the occurrence of such event. Such adjustment in outstanding Option
shall be made without change in the total price applicable to the
unexercised portion of the Option but with a corresponding adjustment
in the Option price per share.
(b) In the event that the Board shall adopt resolutions
recommending the dissolution or liquidation of the Company, any Option
granted under this Agreement shall terminate as of a date to be fixed
by the Board, provided that not less than thirty (30) days' written
notice of the date so fixed shall be given to each Optionee and each
such Optionee shall have the right during such period to exercise his
Option as to all or any part of the Shares covered thereby, including
Shares as to which such Option would not otherwise be exercisable by
reason of an insufficient lapse of time.
(c) In the event of a Reorganization (as hereinafter defined)
in which the Company is not the surviving or acquiring company, or in
which the Company is or becomes a wholly owned subsidiary of another
company after the effective date of the Reorganization, then
(i) If there is no plan or agreement respecting the
Reorganization ("Reorganization Agreement") or if the
Reorganization Agreement does not specifically provide for the
change, conversion or exchange of the Shares under outstanding
and unexercised stock options for securities of another
corporation, then the Board shall take such action, and the
Option shall terminate, as provided in subparagraph (b) of
this Paragraph 4; or
(ii) If there is a Reorganization Agreement and if
the Reorganization Agreement specifically provides for the
change, conversion, or exchange of the Shares under
outstanding and unexercised stock options for securities of
another corporation, then the Board shall adjust the Shares
under such outstanding and unexercised stock options in a
manner not inconsistent with the provisions of the
Reorganization Agreement for the adjustment, change,
conversion, or exchange of such Shares and such Option.
(d) The term "Reorganization" as used in subparagraph (c) of
this Paragraph 4 shall mean any statutory merger, statutory
consolidation, sale of all or substantially all of the assets of the
Company, or sale, pursuant to an agreement with the Company, of
securities of the Company pursuant to which the Company is or becomes a
wholly owned subsidiary of another company after the effective date of
the Reorganization.
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(e) Adjustments and determinations under this Paragraph 4
shall be made by the Board, whose decisions shall be final, binding,
and conclusive.
5. EXPIRATION AND TERMINATION OF THE OPTION. This PVO Option shall
expire at 5:00 p.m. Houston, Texas time on November 2, 2008 or prior to such
time as follows (the period from the Grant Date to the date of the expiration of
the PVO Option is defined herein as the "Option Period"):
(a) Upon termination of the employment of the Option Holder
for any reason other than death, the Option exercisable as of the date of
termination may be exercised by Option Holder within three months after the date
of the termination of employment of the Option Holder. If, as of the date of
termination of employment, the Option Holder has completed at least five full
years of continuous service with the Company, the three month period provided
for in the preceding sentence shall be increased to six months. The
determination of whether the Option Holder has completed such period of service
shall be made by the Company's Board of Directors.
(b) Upon termination of the employment of the Option Holder by
reason of the death of the Option Holder, all the shares under the Option
without regard to whether exercisable as of the date of the Option Holder's
death, may be exercised by the personal representative of the deceased Option
Holder, within 12 months of the date of the Option Holder's death.
6. TRANSFERABILITY. The Option may not be transferred except by will or
pursuant to the laws of descent and distribution, and it shall be exercisable
during the Option Holder's life only by him, and after his death, only by those
entitled to do so under his will or the applicable laws of descent and
distribution.
7. COMPLIANCE WITH SECURITIES LAWS. Upon the acquisition of any Shares
pursuant to the exercise of the Option herein granted, the Option Holder or any
person acting under Section 5(b) will enter into such written representations,
warranties and agreements as the Company may reasonably request in order to
comply with applicable securities laws or with this Agreement.
8. LEGENDS ON CERTIFICATES. The Certificates representing the Shares
purchased by exercise of an Option will be stamped or otherwise imprinted with
legends in such form as the Company or its counsel may require with respect to
any applicable restrictions on sale or transfer and the stock transfer records
of the Company will reflect stock-transfer instructions with respect to such
shares.
9. WITHHOLDING.
(a) Arrangement for Withholding. The Option Holder hereby
agrees to make appropriate arrangements with the Company to provide for the
amount of additional tax withholding under Sections 3102 and 3402 of the
Internal Revenue Code and applicable state income tax laws, if any, resulting
from the exercise of the Option. If such arrangements are not made, the Company
may refuse to issue any Shares to the Option Holder.
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(b) Withholding Election. The Option Holder may elect to pay
all such amounts of tax withholding, or any part thereof, by electing to
transfer to the Company, or to have the Company withhold from shares otherwise
issuable to the Option Holder, Shares having a value equal to the amount
required to be withheld or such lesser amount as may be elected by the Option
Holder provided that all such elections shall be subject to the approval or
disapproval of the Company's Board of Directors. The value of Shares to be
withheld shall be based on the Designated Value of the Common Stock on the date
that the amount of tax to be withheld is to be determined.
10. ACKNOWLEDGMENT OF OPTION HOLDER. The Option Holder acknowledges
having received and read this Agreement and agrees to comply with all laws,
rules and regulations applicable to the grant and exercise of the Option and the
sale or other disposition of the Common Stock.
11. MISCELLANEOUS.
(a) Notices. Any notice required or permitted to be given
under this Agreement shall be in writing and shall be given by first class
registered or certified mail, postage prepaid, or by personal delivery to the
appropriate party, addressed:
(i) If to the Company, to the Company at its
principal place of business at Alvin, Texas (Attention: Corporate Secretary) or
at such other address as may have been furnished to the Option Holder in writing
by the Company; or
(ii) If to the Option Holder, to the Option Holder at
his address on file with the Company, or at such other address as may have been
furnished to the Company by the Option Holder.
Any such notice shall be deemed to have been given as of the fourth day after
deposit in the United States Postal Service, postage prepaid, properly addressed
as set forth above, in the case of mailed notice, or as of the date delivered in
the case of personal delivery.
(b) Amendment. The Board of Directors may make any adjustment
in the Option Price, the number of Shares subject to, or the terms of the Option
by amendment or by substitution of an outstanding Option. Such amendment or
substitution may result in terms and conditions (including Option Price, the
number of Shares covered, Vesting Schedule or Option Period) that differ from
the terms and conditions of this Option. The Board of Directors may not,
however, adversely affect the rights of the Option Holder without the consent of
the Option Holder. If such action is made by amendment, the effective date of
such amendment will be the date of the original grant of this Option. Except as
provided herein, this Agreement may not be amended or otherwise modified unless
evidenced in writing and signed by the Company and the Option Holder.
(c) Severability. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, and each other provision of this
Agreement shall be severable and enforceable to the extent permitted by law.
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(d) Waiver. Any provision contained in this Agreement may be
waived, either generally or in any particular instance, by the Company.
(e) Binding Effect. This Agreement shall be binding upon and
inure to the benefit of the Company and the Option Holder and their respective
heirs, executors, administrators, legal representatives, successors and assigns.
(f) Rights to Employment. Nothing contained in this Agreement
shall be construed as giving the Option Holder any right to be retained in the
employ of the Company and this Agreement is limited solely to governing the
rights and obligations of the Option Holder with respect to the Common Stock and
the Option.
(g) Gender and Number. Except when otherwise indicated by the
context, the masculine gender shall also include the feminine gender, and the
definition of any term herein in the singular shall also include the plural.
(h) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Texas.
(i) "Fair Market Value" means the closing price of the Common
Stock reported on the composite tape or other reporting medium (for securities
listed on the American Stock Exchange or other primary market or exchange on
which the Common Stock is traded) as of the relevant date; provided, however,
that if the Common Stock does not trade on the relevant date, such price shall
be determined based upon the closing price of the Common Stock on the next
preceding date on which trades occurred; and provided further, however, that
should the primary market or exchange on which the Common Stock is traded adopt
a continuous twenty-four hour trading policy, "Fair Market Value" for purposes
of this Plan shall mean the price of the Common Stock on the last trade prior to
4:30 p.m., New York time, on any relevant date.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
date(s) set forth below.
TEAM, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
Title: Director and Member of
Executive Committee
OPTION HOLDER
/s/ Xxxxxx X. Xxxx
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Xxxxxx X. Xxxx
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EXHIBIT A
Vesting Schedule
Vesting of the PVO Option covered by this Agreement shall occur when
the public market price of the Shares achieves the following price levels:
LEVELS OPTION VESTED
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LEVEL 1:
At the end of any consecutive six (6)
month period during which the average
Closing Price (as hereafter defined) of 33 1/3%
the Common Stock throughout such six (6)
month period is $7.00 per share,
provided that the Closing Price is also
at least $7.00 per share at the end of
such six (6) month period.
LEVEL 2:
At the end of any consecutive six (6)
month period during which the average
Closing Price (as hereafter defined) of 66 2/3%
the Common Stock throughout such six (6)
month period is $10.50 per share,
provided that the Closing Price is also
at least $10.50 per share at the end of
such six (6) month period.
LEVEL 3:
At the end of any consecutive six (6)
month period during which the average
Closing Price (as hereafter defined) of 100%
the Common Stock throughout such six (6)
month period is $14.00 per share,
provided that the Closing Price is also
at least $14.00 per share at the end of
such six (6) month period.
For purposes of this Agreement, "Closing Price" means the closing price
of the Common Stock reported on the composite tape or other reporting medium
(for securities listed on the American Stock Exchange or other primary market or
exchange on which the Common Stock is
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traded), provided, however, that should the primary market or exchange on which
the Common Stock is traded adopt a continuous twenty-four hour trading policy,
"Fair Market Value" for purposes of this Agreement shall mean the price of the
Common Stock on the last trade prior to 4:30 p.m., New York time, on any
relevant date.
In the event that an adjustment to the Option Price per share is made
or required to be made pursuant to Section 4(a) of this Agreement, then the
price level requirements in this Exhibit A shall also be appropriately adjusted.
If the market price requirements for two or more previously unachieved
vesting levels are achieved in a single six-month period, then the vesting of
PVO Options for all such vesting levels achieved in such six-month period shall
occur.
