TETRA Technologies, Inc. EMPLOYEE NONQUALIFIED STOCK OPTION AGREEMENT Pursuant to the terms of the TETRA Technologies, Inc. 2007 Long Term Incentive Compensation Plan
Exhibit
4.13
TETRA Technologies,
Inc.
EMPLOYEE
NONQUALIFIED STOCK OPTION AGREEMENT
Pursuant
to the terms of the
TETRA
Technologies, Inc. 2007 Long Term Incentive Compensation Plan
1.
Grant of Nonqualified
Option. TETRA Technologies, Inc., a Delaware corporation (“Company”),
hereby grants to [ ] (“Optionee”) the
right, privilege and option as herein set forth (the “Nonqualified Option”) to
purchase up to [x,xxx] shares (the “Shares”) of common stock, $0.01 par value
per share, of the Company (“Common Stock”), subject to and in accordance with
the terms and conditions of this document. This Employee Nonqualified Stock
Option Agreement (the “Agreement”) is dated as of [xx/xx/xx]. The Shares, when issued
to Optionee upon exercise of the Nonqualified Option, shall be fully paid and
nonassessable and the Optionee (or the person permitted to exercise the
Nonqualified Option in the event of Optionee’s death) shall be and have all the
rights and privileges of a stockholder of record of the Company with respect to
the Shares acquired upon exercise of the Nonqualified Option, effective upon
such exercise. The Nonqualified Option is granted pursuant to and to implement
in part the TETRA Technologies, Inc. 2007 Long Term Incentive Compensation Plan
(as amended and in effect from time to time, the “Plan”) and is subject to the
provisions of the Plan, which is hereby incorporated herein and is made a part
hereof, as well as the provisions of this Agreement. By execution of this
Agreement, Optionee agrees to be bound by all of the terms, provisions,
conditions and limitations of the Plan as implemented by the Nonqualified Option
and this Agreement, together with all rules and determinations from time to time
issued by the Management and Compensation Committee (“Committee”) pursuant to
the Plan. All capitalized terms have the meanings set forth in the Plan unless
otherwise specifically provided. All references to specified paragraphs pertain
to paragraphs of this Nonqualified Option unless otherwise provided. The
Nonqualified Option is not intended to qualify as an “incentive stock option”
within the meaning of Section 422 of the Internal Revenue Code of 1986, as
amended (the “Code”).
2.
Option Terms.
Subject to earlier termination as provided herein, the Nonqualified Option shall
expire on the 10th
anniversary of the date of grant of Nonqualified Option, which anniversary shall
be [xx/xx/xx]. The period during which the Nonqualified Option is in effect is
referred to as the “Option Period”.
3.
Option Exercise
Price. The exercise price (the “Exercise Price”) of the Shares subject to
the Nonqualified Option shall be $[xx.xx] per Share which has been determined to
be no less than the Fair Market Value Per Share of the Common Stock on the date
of grant of the Nonqualified Option.
4.
Vesting. Subject
to the provisions of this Agreement, including, without limitation, the
following provisions of this Paragraph 4, the total number of Shares subject to
this Nonqualified Option shall vest and be exercisable only in accordance with
the following schedule:
[schedule to be specified]
The vested Shares
that may be acquired under the Nonqualified Option may be purchased, in whole or
in part, at any time after they become vested during the Option Period. In
addition, the Committee may accelerate vesting and the time at which the
Nonqualified Option may be exercised, (i) upon the occurrence of a Change in
Control in accordance with Paragraph 8 below, or (ii) upon the death, Disability
or Retirement of Optionee in accordance with Paragraph 7 below.
5.
Method of
Exercise. To exercise the Nonqualified Option, Optionee shall deliver
notice to the Company at its principal executive office, directed to the Plan
Administrator, such
exercise to be
effective at the time of receipt of such notice at the Company’s principal
executive office during normal business hours, stating the number of Shares with
respect to which the Nonqualified Option is being exercised together with
payment for such Shares plus any required withholding taxes, unless other
arrangements for withholding tax liability have been made with the Committee.
The exercise notice shall be delivered in person, by certified or regular mail,
or by such other method (including electronic transmission) as determined from
time to time by the Committee or the Plan Administrator. Any exercise of the
Nonqualified Option must be for a minimum of 100 Shares or, if less, for all
remaining Shares subject to the Nonqualified Option.
6.
Payment of Exercise
Price and Required Withholding. In order to exercise the Nonqualified
Option, the Optionee or other person or persons entitled to exercise such
Nonqualified Option shall deliver to Company payment in full for (i) the Shares
being purchased and (ii) unless other arrangements have been made with the
Committee, any required withholding taxes. The payment of the Exercise Price for
the Nonqualified Option shall either be (i) in cash, or by check payable and
acceptable to the Company, (ii) with the consent of the Committee, by tendering
to Company shares of Common Stock owned by the person exercising the
Nonqualified Option for more than six months having an aggregate Fair Market
Value as of the date of exercise that is not greater than the full exercise
price for the Shares with respect to which the Nonqualified Option is being
exercised and by paying any remaining amount of the Exercise Price (and any
required withholding taxes) as provided in (i) above, or (iii) with the consent
of the Committee and compliance with such instructions as the Committee may
specify, by delivering to the Company and to a broker a properly executed
exercise notice and irrevocable instructions to such broker to deliver to the
Company cash or a check payable and acceptable to the Company to pay the
exercise price and any applicable withholding taxes. Upon receipt of the cash or
check from the broker, the Company will deliver to the broker the shares for
which the Nonqualified Option is exercised. In the event that the person elects
to make payment as allowed under clause (ii) above, the Committee may, upon
confirming that the Optionee owns the number of additional Shares being
tendered, authorize the issuance of a new certificate for the number of Shares
being acquired pursuant to the exercise of the Nonqualified Option less that
number of Shares being tendered upon the exercise and return to the person (or
not require surrender of) the certificate for the Shares being tendered upon the
exercise. The date of sale of the shares by the broker pursuant to a cashless
exercise under (iii) above shall be the date of exercise of the Nonqualified
Option. If the Committee so requires, such person or persons shall also deliver
a written representation that all Shares being purchased are being acquired for
investment and not with a view to, or for resale in connection with, any
distribution of such Shares.
7.
Termination of
Employment. Termination of Employment, Retirement, death or Disability of
Optionee, shall affect Optionee’s rights under the Nonqualified Option as
follows:
|
|
(a)
|
Termination of
Employment. If Employment of Optionee is terminated for any reason
whatsoever other than death, Disability or Retirement, subject to the
provisions of this Section 7, any nonvested portion of the Nonqualified
Option outstanding at the time of such termination and all rights
thereunder shall wholly and completely terminate and no further vesting
shall occur, and Optionee shall be entitled to exercise his or her rights
with respect to the portion of the Nonqualified Option vested as of the
date of termination for a period that shall end on the earlier of (i) the
expiration date set forth in the Nonqualified Option with respect to the
vested portion of the Nonqualified Option or (ii) the date that occurs
three (3) months after such termination
date.
|
|
|
(b)
|
Retirement. Upon the
Retirement of Optionee:
|
|
|
(i)
|
any nonvested
portion of the Nonqualified Option shall immediately terminate and no
further vesting shall occur; and
|
Page 2
|
|
(ii)
|
any vested
portion of the Nonqualified Option shall expire on the earlier of (A) the
expiration of the Option Period; or (B) the expiration of twelve (12)
months after the date of
Retirement.
|
|
|
(c)
|
Disability or Death.
Upon termination of Employment as a result of Disability or death of
Optionee or if Optionee retires and dies during the period described in
Section 7(b)(ii) above (hereinafter the “Applicable Retirement Period”),
or if the Optionee’s Employment was terminated as a result of Disability
and the Optionee dies during the period that expires on the earlier of the
expiration of the Option Period or the first anniversary of the Optionee’s
termination of Employment due to Disability (hereinafter the “Applicable
Disability Period”),
|
|
|
(i)
|
any nonvested
portion of the Nonqualified Option that has not already terminated shall
immediately terminate and no further vesting shall occur;
and
|
|
|
(ii)
|
any vested
portion of the Nonqualified Option shall expire upon the earlier of (A)
the expiration of the Option Period or (B) the later of (1) the first
anniversary of such termination of Employment as a result of Disability or
death, or (2) the first anniversary of Optionee’s death during the
Applicable Retirement Period or the Applicable Disability
Period.
|
|
|
(d)
|
Notwithstanding
any other provision of the Nonqualified Option, the Committee, in its
discretion, may provide that,
|
|
|
(i)
|
upon
Retirement of Optionee or upon termination of Employment as a result of
Disability or death of Optionee, all or a part of any unvested portion of
the Nonqualified Option shall become vested, and together with the
previously vested portion of the Nonqualified Option, shall be exercisable
for such period and upon such terms and conditions as may be determined by
the Committee; or
|
|
|
(ii)
|
in the event
that the Optionee ceases to be an Employee, the vested portion of the
Nonqualified Option shall remain exercisable for such period and upon such
terms and conditions as may be determined by the
Committee;
|
|
|
provided,
however, that no such acceleration of vesting or continuation of
exercisability shall be effective prior to the date of the Committee’s
written determination, and no continuation may exceed the expiration of
the Option Period.
|
8. Change
in Control.
|
|
(a)
|
Change in Control. In
the event of a Change in Control described in clauses (ii), (iii) and (iv)
of the definition of Change in Control under Section 1.2 of the Plan, the
Committee may accelerate vesting and the time at which the Nonqualified
Option may be exercised so that the Nonqualified Option may be exercised
in full for a limited period of time on or before a specified date fixed
by the Committee, after which the unexercised Nonqualified Option and all
rights of Optionee thereunder shall terminate, or the Committee may
accelerate vesting and the time at which the Nonqualified Option may be
exercised so that the Nonqualified Option may be exercised in full for its
then remaining term.
|
|
|
Notwithstanding
the above, the Committee shall not be required to take any action
described in the preceding sentence and any decision made by the
Committee, in its sole discretion, not to take some or all of the actions
described in the preceding sentence shall
|
Page 3
|
be final,
binding and conclusive with respect to the Company and all other
interested persons.
|
|
|
(b)
|
Right of Cash-Out. If
approved by the Board prior to or within thirty (30) days after such time
as a Change in Control shall be deemed to have occurred, the Board shall
have the right for a forty-five (45) day period immediately following the
date that the Change in Control is deemed to have occurred to require
Optionee to transfer and deliver to Company the Nonqualified Option in
exchange for an amount equal to the “cash value” (defined below) of the
Nonqualified Option. Such right shall be exercised by written notice to
Optionee. The cash value of the Nonqualified Option shall equal the excess
of the “market value” (defined below) per Share over the Exercise Price,
if any, multiplied by the number of Shares subject to the Nonqualified
Option. For purposes of the preceding sentence, “market value” per Share
shall mean the higher of (i) the average of the Fair Market Value per
Share of Common Stock on each of the five trading days immediately
following the date a Change in Control is deemed to have occurred or (ii)
the highest price, if any, offered in connection with the Change in
Control. The amount payable to Optionee by Company pursuant to this
Paragraph 8(b) shall be in cash or by certified check and shall be reduced
by any taxes required to be
withheld.
|
9.
Reorganization of
Company and Subsidiaries. The existence of the Nonqualified Option shall
not affect in any way the right or power of Company or its stockholders to make
or authorize any or all adjustments, recapitalizations, reorganizations or other
changes in the Company’s capital structure or its business, or any merger or
consolidation of Company or any issue of bonds, debentures, preferred or prior
preference stock ahead of or affecting the Shares or the rights thereof, or the
dissolution or liquidation of Company, or any sale or transfer of all or any
part of its assets or business, or any other corporate act or proceeding,
whether of a similar character or otherwise.
10.
Adjustment of
Shares. In the event that at any time after the date of grant the
outstanding shares of Common Stock are changed into or exchanged for a different
number or kind of shares or other securities of the Company by reason of a
merger, consolidation, recapitalization, reclassification, stock split, stock
dividend, combination of shares or the like, the aggregate number of Shares
subject to the Nonqualified Option which have not vested under this Agreement
and the Exercise Price, subject to any required action by the stockholders of
the Company, shall automatically be proportionately adjusted.
11.
No Rights in
Shares. Optionee shall have no rights as a stockholder in respect of
Shares until such Optionee becomes the holder of record of such
Shares.
12.
Certain
Restrictions. The certificate issued for the Shares subject to the
restrictions described in this Paragraph 12 may, in the Committee’s discretion,
be issued with an appropriate legend describing such restrictions, and the
Committee may establish an escrow or other custodial arrangement for holding of
the certificate by a person (other than Optionee) selected by the
Committee.
By exercising the Nonqualified Option, Optionee
agrees that if at the time of such exercise the sale of Shares issued hereunder
is not covered by an effective registration statement filed under the Securities
Act of 1933 (Act), Optionee will acquire the Shares for Optionee’s own account
and without a view to resale or distribution in violation of the Act or any
other securities law, and upon any such acquisition Optionee will enter into
such written representations, warranties and agreements as Company may
reasonably request in order to comply with the Act or any other securities law
or with this Agreement. Optionee agrees that Company shall not be obligated to
take any affirmative action in order to cause the issuance or transfer of Shares
Page 4
hereunder to comply
with any law, rule or regulation that applies to the Shares subject to the
Nonqualified Option.
13.
Shares Reserved.
Company shall at all times during the Option Period reserve and keep available
such number of Shares as will be sufficient to satisfy the requirements of this
Nonqualified Option.
14.
Nontransferability of
Option. The Nonqualified Option evidenced by this Agreement is not
transferable other than by will, the laws of descent and distribution, or
pursuant to a qualified domestic relations order. The Nonqualified Option will
be exercisable during Optionee’s lifetime only by Optionee or by Optionee’s
guardian or legal representative. No right or benefit hereunder shall in any
manner be liable for or subject to any debts, contracts, liabilities, or torts
of Optionee. The Optionee (or his guardian) may, in accordance with rules and
procedures established by the Committee from time to time, transfer, for estate
planning purposes, all or part of the Nonqualified Option to one or more
immediate family members or related family trusts or partnerships or similar
entities as determined by the Committee. To the extent the Nonqualified Option
is transferred in accordance with the provisions of this Paragraph 14, the
Nonqualified Option may only be exercised by the person or persons who acquire a
proprietary interest in the Nonqualified Options pursuant to the
transfer.
15.
Amendment and
Termination. The Nonqualified Option may not be terminated by the Board
or the Committee at any time without the written consent of Optionee. This
Agreement may be amended in writing by the Company and Optionee, provided the
Company may amend this Agreement unilaterally (i) if the amendment does not
adversely affect the Optionee’s rights hereunder in any material respect, (ii)
if the Company determines that an amendment is necessary to comply with Rule
16b-3 under the Exchange Act, or (iii) if the Company determines that an
amendment is necessary to meet the requirements of the Code or to prevent
adverse tax consequences to the Optionee.
16.
No Guarantee of
Employment. The Nonqualified Option shall not confer upon Optionee any
right with respect to continuance of employment or other service with the
Company or any Affiliate, nor shall it interfere in any way with any right
Company or any Affiliate would otherwise have to terminate such Optionee’s
employment or other service at any time.
17.
Withholding of
Taxes. Any issuance of Common Stock pursuant to the exercise of the
Nonqualified Option shall not be made until appropriate arrangements
satisfactory to the Company have been made for the payment of any tax amounts
(federal, state, local or other) that may be required to be withheld or paid by
the Company with respect thereto at the minimum statutory rate. Company shall
have the right to take such action as may be necessary or appropriate to satisfy
any such tax withholding obligations.
18.
No Guarantee of Tax
Consequences. Neither Company nor any Affiliate nor the Board or
Committee makes any commitment or guarantee that any federal or state tax
treatment will apply or be available to any person eligible for the benefits
under the Nonqualified Option.
19.
Severability. In
the event that any provision of the Nonqualified Option shall be held illegal,
invalid, or unenforceable for any reason, such provision shall be fully
severable, but shall not affect the remaining provisions of the Nonqualified
Option, and the Nonqualified Option shall be construed and enforced as if the
illegal, invalid, or unenforceable provision had never been included
herein.
20. Consent
to Electronic Delivery; Electronic Signature. In lieu of receiving
documents in paper format, Optionee agrees, to the fullest extent permitted by
law, to accept electronic delivery of any documents that the Company may be
required to deliver (including, but
Page 5
not limited to,
prospectuses, prospectus supplements, grant or award notifications and
agreements, account statements, annual and quarterly reports, and all other
forms of communications) in connection with this and any other award made or
offered by the Company. Electronic delivery may be via a Company electronic mail
system or by reference to a location on a Company intranet to which Optionee has
access. Optionee hereby consents to any and all procedures the Company has
established or may establish for an electronic signature system for delivery and
acceptance of any such documents that the Company may be required to deliver,
and agrees that his or her electronic signature is the same as, and shall have
the same force and effect as, his or her manual signature.
21.
Governing Law.
The Nonqualified Option and this Agreement shall be construed in accordance with
the laws of the State of Delaware to the extent federal law does not supersede
and preempt Delaware law.
COMPANY
TETRA
Technologies, Inc.
By:
Xxxxxx X.
Xxxxxxxxx
President
& Chief Executive Officer
OPTIONEE
By:
Employee
Page 6
