MCJUNKIN RED MAN HOLDING CORPORATION NONQUALIFIED STOCK OPTION AGREEMENT
Exhibit 10.9.1
XXXXXXXX RED MAN HOLDING CORPORATION
NONQUALIFIED STOCK OPTION AGREEMENT
NONQUALIFIED STOCK OPTION AGREEMENT
THIS AGREEMENT (this “Agreement”), is made effective as of [________, 200__] (the
“Date of Grant”), between XxXxxxxx Red Man Holding Corporation, a Delaware corporation (the
“Company”), PVF Holdings LLC, a Delaware limited liability company (“PVF Holdings
LLC”) (solely for purposes of Section 16 hereof), and [__________] (the “Participant”).
1. Grant of the Option. The Company hereby grants to the Participant the right and
option (the “Option”) to purchase, on the terms and conditions hereinafter set forth, all
or any part of an aggregate of [__________] Shares, subject to adjustment as set forth in the Plan.
The Option Price shall be $ [__________] USD, which the Company and the Participant agree is
not less than the Fair Market Value of the Shares as of the date hereof.
(a) Subject to the earlier termination or cancellation of the Option as set forth herein, the
Option shall vest and become exercisable as follows:
(i) Prior to the second (2nd) anniversary of the Date of Grant, no portion of the
Option shall vest or be exercisable;
(ii) On and after the second (2nd) anniversary of the Date of Grant, the Option
shall vest and be exercisable with respect to an aggregate of one-fourth (1/4) of the Shares
originally subject to the Option, provided that the Participant’s Employment with the Company or
any of its Affiliates has not terminated as of such anniversary;
(iii) On and after the third (3rd) anniversary of the Date of Grant, the Option
shall vest and be exercisable with respect to an aggregate of one-half (1/2) of the Shares
originally subject to the Option, provided that the Participant’s Employment with the Company or
any of its Affiliates has not terminated as of such anniversary;
(iv) On and after the fourth (4th) anniversary of the Date of Grant, the Option
shall vest and be exercisable with respect to an aggregate of three-fourths (3/4) of the Shares
originally subject to the Option, provided that the Participant’s Employment with the Company or
any of its Affiliates has not terminated as of such anniversary; and
(v) On and after the fifth (5th) anniversary of the Date of Grant, the Option shall
vest and be exercisable with respect to an aggregate of one hundred percent of the Shares
originally subject to the Option provided, that the Participant’s Employment with the Company or
any of its Affiliates has not terminated as of such anniversary.
(vi) Notwithstanding the foregoing, in the event of (x) the Participant’s death or Disability
or (y) the occurrence of a Transaction, the Option shall, to the extent not then vested,
automatically become fully vested and exercisable.
The portion of the Option which has become vested and exercisable as described herein is
hereinafter referred to as the “Vested Portion.”
(b) If the Participant’s Employment is terminated by the Company or an Affiliate for Cause,
the Option shall, whether or not vested, be automatically canceled without payment of consideration
therefor.
(c) If the Participant’s Employment with the Company or any of its Affiliates terminates for
any reason other than (x) Cause or (y) the Participant’s death or Disability, the Option shall, to
the extent not previously vested, be automatically canceled by the Company without payment of
consideration therefor, and the Vested Portion of the Option shall remain exercisable for the
period set forth in Section 2(d).
(d) Subject to the provisions of the Plan and this Agreement, the Participant may exercise all
or any part of the Vested Portion of the Option at any time prior to the earliest to occur of (i)
the ten-year anniversary of the Date of Grant and (ii) 90 days following the date of the
Participant’s termination of Employment (other than a termination of Employment due to the
Participant’s death or Disability).
(e) Notwithstanding the foregoing, upon termination of Employment due to the Participant’s
death or Disability, the Participant or the Participant’s executor or administrator, or the person
or persons to whom the Participant’s right under this Agreement shall pass by will or by the laws
of descent and distribution as the case may be may exercise all or any part of the Vested Portion
of the Option at any time prior to the earliest to occur of (i) the ten-year anniversary of the
Date of Grant and (ii) twenty-four months following such termination of Employment.
(f) Unless the Option is exercised on the day the Option expires or within a period of five
(5) business days in advance of the day the Option expires, the Participant is not permitted to
exercise the Option while having inside information (voorwetenschap) as defined in Section 5:53 of
the Dutch Act on the Financial Supervision, to the extent that Dutch law is applicable.
2
(a) The Vested Portion of the Option may be exercised by delivering to the Company at its
principal office written notice of intent so to exercise. Such notice shall specify the number of
Shares for which the Option is being exercised (the “Purchased Shares”) and shall be
accompanied by payment in full of the Option Price in cash or by check or wire transfer;
provided, however, that with the written consent of the Committee (which consent
may be withheld for any or no reason), payment of such aggregate exercise price may instead be
made, in whole or in part, by (A) the delivery to the Company of a certificate or certificates
representing Shares having a Fair Market Value on the date of exercise equal to the aggregate
exercise price, duly endorsed or accompanied by a duly executed stock power, which delivery
effectively transfers to the Company good and valid title to such shares, free and clear of any
pledge, commitment, lien, claim or other encumbrance (such shares to be valued on the basis of the
aggregate Fair Market Value thereof on the date of such exercise), or (B) by a reduction in the
number of Purchased Shares to be issued upon such exercise having a Fair Market Value on the date
of exercise equal to the aggregate exercise price in respect of the Purchased Shares, provided that
the Company is not then prohibited from purchasing or acquiring such Shares. The Participant shall
not have any rights to dividends or other rights of a stockholder with respect to Shares subject to
the Option until the Participant has given written notice of exercise of the Option, paid in full
for such Shares and, if applicable, has satisfied any other conditions imposed by the Committee or
pursuant to the Plan or this Agreement.
(b) Notwithstanding any other provision of the Plan or this Agreement to the contrary, the
Option may not be exercised prior to the completion of any registration or qualification of the
Option or the Shares under applicable state and federal securities or other laws, or under any
ruling or regulation of any governmental body or national securities exchange (collectively, the
“Legal Requirements”) that the Committee shall in its sole discretion determine to be
necessary or advisable, unless an exemption to such registration or qualification is available and
satisfied. The Committee may establish additional procedures as it deems necessary or desirable in
connection with the exercise of the Option or the issuance of any Shares upon such exercise to
comply with any Legal Requirements. Such procedures may include but are not limited to the
establishment of limited periods during which the Option may be exercised or that following receipt
of the notice of exercise and prior to the completion of the exercise, the Participant will be
required to affirm the exercise of the Option following receipt of any disclosure deemed necessary
or desirable by the Committee.
(c) Upon the Company’s determination that the Option has been validly exercised as to any of
the Shares, the Company shall issue certificates in the Participant’s name for such Shares. Such
certificates will be held by the Company on behalf of the Participant until such time as the Shares
represented by such certificates are transferred as permitted by the Stockholders Agreement.
(d) In the event of the Participant’s death or Disability, the Option shall remain exercisable
by the Participant’s executor or administrator, or the person or persons to whom the Participant’s
rights under this Agreement shall pass by will or by the laws of descent and distribution as the
case may be, for the period set forth in Section 2(e) (and the term
3
“Participant” shall be deemed to include such heir or legatee). Any such heir or legatee of
the Participant shall take rights herein granted subject to the terms and conditions hereof.
(e) In consideration of the grant of this Option, the Participant agrees that, as a condition
to the exercise of any option to purchase Shares (whether this Option or any other option), the
Participant shall, with respect to such Shares, have become a party to the Stockholders Agreement.
4. Sale of Shares.
(a) To the extent that Dutch law is applicable, the Shares acquired upon the exercise of the
Option, may only be sold by the Participant if he or she is not in the possession of inside
information as defined in Section 5:53 of the Dutch Act on the Financial Supervision, unless:
(i) the Option is exercised on the day the Option expires or within a period of five business
days in advance of the day the Option expires, and
(ii) the Participant has given written notice to the Company of his intention to sell the
Shares acquired upon the exercise of the Option in accordance with (i) at least four months before
the day the Option expires.
After the Participant has notified the Company as stated under (i), the Participant is obliged to
sell the Shares within the period mentioned under (ii).
(b) To the extent that Dutch law is applicable, and the Shares are not sold within the period
specified above under (a), the Shares acquired upon the exercise of the Option, may only be sold by
the Participant if he or she is not in the possession of inside information as defined in Section
5:53 of the Dutch Act on the Financial Supervision.
5. No Right to Continued Employment. The granting of the Option evidenced hereby and
this Agreement shall impose no obligation on the Company or any Affiliate to continue the
Employment of the Participant and shall not lessen or affect the Company’s or its Affiliates’ right
to terminate the Employment of such Participant.
6. Legend on Certificates. The certificates representing the Shares purchased by
exercise of the Option shall be subject to such stop transfer orders and other restrictions as the
Committee may deem advisable under the Plan or the rules, regulations, and other requirements of
the Securities and Exchange Commission, any stock exchange upon which such Shares are listed, and
any applicable federal or state laws, and the Committee may cause a legend or legends to be put on
any such certificates to make appropriate reference to such restrictions.
7. Transferability. Unless otherwise determined by the Committee, the Option may not
be assigned, alienated, pledged, attached, sold or otherwise transferred or encumbered by the
Participant otherwise than by will or by the laws of descent and distribution, and any such
purported assignment, alienation, pledge, attachment, sale, transfer or encumbrance shall be void
and unenforceable against the Company or any Affiliate; provided, that the designation of a
beneficiary shall not constitute an assignment, alienation, pledge, attachment, sale, transfer or
4
encumbrance. No such permitted transfer of the Option to heirs or legatees of the Participant
shall be effective to bind the Company unless the Committee shall have been furnished with written
notice thereof and a copy of such evidence as the Committee may deem necessary to establish the
validity of the transfer and the acceptance by the transferee or transferees of the terms and
conditions hereof. During the Participant’s lifetime, the Option is exercisable only by the
Participant.
8. Withholding. The Participant shall be required to pay to the Company or any
Affiliate, and the Company shall have the right and is hereby authorized to withhold, any
applicable withholding taxes in respect of the Option, its exercise or any payment or transfer
under, or with respect to, the Option and to take such other action as may be necessary in the
opinion of the Committee to satisfy all obligations for the payment of such withholding taxes. The
Participant shall be solely responsible for the payment of all taxes relating to the payment or
provision of any amounts or benefits hereunder.
9. Securities Laws. Upon the acquisition of any Shares pursuant to the exercise of
the Option, the Participant will make or enter into such written representations, warranties and
agreements as the Committee may reasonably request in order to comply with applicable securities
laws or with this Agreement.
10. Successors in Interest. This Agreement shall inure to the benefit of and be
binding upon any successor to the Company. This Agreement shall inure to the benefit of the
Participant’s legal representatives. All obligations imposed upon the Participant and all rights
granted to the Company under this Agreement shall be binding upon the Participant’s heirs,
executors, administrators and successors.
11. Resolution of Disputes. Any dispute or disagreement which may arise under, or as
a result of, or in any way relate to, the interpretation, construction or application of this
Agreement shall be determined by the Board. Any determination made hereunder shall be final,
binding and conclusive on the Participant, the Participant’s heirs, executors, administrators and
successors, and the Company and its subsidiaries for all purposes.
12. Notices. Any notice necessary under this Agreement shall be addressed to the
Company in care of its Secretary at the principal executive office of the Company and to the
Participant at the address appearing in the personnel records of the Company for the Participant or
to either party hereto at such other address as either party may hereafter designate in writing to
the other. Any such notice shall be deemed effective upon receipt thereof by the addressee.
13. Choice of Law. This Agreement shall be governed by and construed in accordance
with the laws of the state of New York, without regard to principles of conflicts of laws.
14. Option Subject to Plan. By entering into this Agreement, the Participant agrees
and acknowledges that the Participant has received and read a copy of the Plan. The Option is
subject to the Plan. The terms and provisions of the Plan, as it may be amended from time to time,
are hereby incorporated herein by reference. In the event of a conflict between any term or
5
provision contained herein and a term or provision of the Plan, the applicable terms and
provisions of the Plan, as applicable, will govern and prevail.
15. Accredited Investor Status Representation of Participant. Please check the box
next to any of the following statements that apply:
o | Your individual net worth, or joint net worth with your spouse, as of the date hereof, exceeds $1,000,000; | ||
o | You had individual income in excess of $200,000 in each of the two most recent years, or joint income with your spouse in excess of $300,000 in each of those years, and have a reasonable expectation of reaching the same income level in the current year; or | ||
o | None of the statements above apply. |
16. Adoption of Stockholders Agreement. The parties hereto agree that, upon the grant
of the Option hereunder, the Participant shall be made a party to the Management Stockholders
Agreement among PVF LLC (formerly known as McJ Holding LLC), the Company, and the other parties
thereto (the “Stockholders Agreement”) as an “Executive” (as defined in the Stockholders
Agreement) with the rights and obligations of holders of “Stock” (as defined in the Stockholders
Agreement) and the Participant hereby agrees to become a party to the Stockholders Agreement and to
be bound by, and subject to, all of the representations, covenants, terms and conditions of the
Stockholders Agreement that are applicable to an Executive with such rights and obligations.
Execution and delivery of this Agreement by the Participant shall also constitute execution and
delivery by the Participant of the Stockholders Agreement, without further action of any party. A
copy of the Stockholders Agreement is attached hereto as Exhibit A. In addition to the
representations and warranties in the Stockholders Agreement that Participant makes as an
Executive, the Participant represents and warrants to the Company that (a) the Participant has
carefully reviewed the Stockholders Agreement and has also reviewed all other documents the
Participant deems necessary or desirable in order for the Participant to become a party to the
Stockholders Agreement (by executing this Agreement); (b) the Participant has been granted the
opportunity to ask questions of, and receive answers from, representatives of the Company
concerning the Stockholders Agreement and the terms and conditions thereof that the Participant
deems necessary; and (c) this Agreement (and by executing this Agreement, the Stockholders
Agreement) has been duly executed and delivered by Participant and constitutes a valid and binding
agreement of Participant enforceable against the Participant in accordance with its terms and the
terms of the Stockholders Agreement.
17. Complete Agreement. The Plan and this Agreement shall constitute the entire
agreement between the parties with respect to the Option.
18. Signature in Counterparts. This Agreement may be signed in counterparts, each of
which shall be an original, with the same effect as if the signatures thereto and hereto were upon
the same instrument.
[signature page follows]
6
XXXXXXXX RED MAN HOLDING CORPORATION |
||||
By: | ||||
Name: | ||||
Title: | ||||
PVF HOLDINGS LLC (for purposes of Section 16 only) |
||||
By: | ||||
Name: | ||||
Title: | ||||
PARTICIPANT |
||||
By: | ||||
Name: | ||||