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EXHIBIT 10(w)
STANDSTILL AND VOTING AGREEMENT
THIS STANDSTILL AND VOTING AGREEMENT (the "Agreement"), is entered into
on this the 30th day of June, 1997, by and between Team, Inc., a Texas
corporation ("Team") and Xxxxxxxxx International, Inc., a Michigan corporation
("Shareholder"). Team and the Shareholder are referred to collectively herein
as the "Parties."
INTRODUCTION
Pursuant to a Stock Purchase Agreement of even date herewith ("Stock
Purchase Agreement"), Shareholder is acquiring 650,000 shares ("Shares") of
the common stock, $0.30 par value per share ("Common Stock"), of Team and the
Shareholder has agreed to execute this Agreement as additional consideration to
Team under the Stock Purchase Agreement.
The Shareholder and Team have agreed that this Agreement shall be
executed as a condition precedent to the closing of the transactions
contemplated by the Stock Purchase Agreement, in order to promote the stability
of the management of Team, in recognition that such stability is necessary and
desirable for Team, and for the Shareholder as a result of its substantial
investment in Team represented by the Shares, to promote stable relationships
with customers, suppliers and lenders, to assist in recruiting key employees
and to avoid contributing to excessive volatility in the market price of Team
Common Stock.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and the mutual promises
herein made and in consideration of the representations, warranties and
covenants herein contained, the Parties agree as follows:
Section 1 Standstill Agreement.
1.1 Shareholder agrees that, except to the extent provided in
Section 1.2, during the period beginning on the date of this Agreement and
ending on the date five years after the date of this Agreement ("Standstill
Term"), it will not acquire or agree to acquire, or cause or permit any
"Affiliate" (as hereinafter defined) or any Group (as hereinafter defined) of
which Shareholder is a member to acquire or agree to acquire, (a) any Common
Stock, or any other securities ("Other Voting Securities") of Team that entitle
the holder thereof to vote or may entitle the holder thereof to vote under
certain circumstances (including but not limited to the right to vote on
matters as to which the Texas Business Corporation Act ("TBCA") and/or the
articles of incorporation or bylaws of Team require or permit voting by a class
of securities that ordinarily does not have the right to vote on matters
submitted to a vote of Shareholder), (b) any option, warrant or other right to
acquire Common Stock or Other Voting Securities, (c) any option, warrant or
other right to acquire securities or other rights convertible into or
exchangeable for Common Stock or Other Voting Securities, or (d) any right or
power ("Voting Right") to vote, or to control, direct or influence the manner
of voting of, Common Stock or Other Voting Securities, or any option or other
right to acquire a Voting Right. The ownership or possession of, or right to
acquire ownership or possession of, Common Stock,
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Other Voting Securities or Voting Rights (collectively, "Team Voting
Securities") as covered in items (a), (b), (c) and (d) above are sometimes
collectively referred to hereinafter as "Voting Power."
1.2 The restrictions set forth in Section 1.1 shall not apply
to Shareholder or its Affiliate or Group if (a) at the time of a proposed
transaction otherwise subject to Section 1.1 the Shareholder and its Affiliates
and any Group of which it is a member collectively have Voting Power with
respect to no more than 30% of the issued and outstanding shares of Team Voting
Securities, and (b) upon consummation of the proposed transaction the
Shareholder and Affiliates and any Group of which it is a member will continue
to have Voting Power with respect to no more than 30% of the issued and
outstanding shares of Team Voting Securities, determined on a Fully Diluted
Basis. "Fully Diluted Basis" means, with respect to calculating percentage
ownership of the Common Stock, treating as currently issued and outstanding all
shares of Common Stock that Team may be required to issue in the future in
connection with currently valid, binding and enforceable options, warrants,
purchase rights, subscription rights, conversion rights, exchange rights, or
other contracts or commitments that could require Team to issue, sell, or cause
to become outstanding, any of its Common Stock.
1.3 As used in this Agreement, (a) an "Affiliate" of, or
person "Affiliated" with, a specified person, is a person or entity that
directly, or indirectly through one or more intermediaries, controls or is
controlled by, or is under common control with, the person specified, and shall
include (without limitation of the foregoing) any entity of which Shareholder
and/or any of the beneficial owners of Shareholder's outstanding shares of
stock own 10% or more of the outstanding voting securities and/or voting
rights, and (b) the term "Group" means a person and entities and persons under
Shareholder's direct or indirect control or acting on Shareholder's behalf or
with whom Shareholder or such other person in a control relationship to
Shareholder and/or any member of a group of persons is acting together to
accomplish the same or similar objective or bring about the same events,
including by example, objectives which would usurp the limitations of this
Agreement.
1.4 Under that certain Rights Agreement ("Rights Agreement"),
by and between Team and Ameritrust Company, N.A., dated October 24, 1990, the
acquisition by any shareholder or group of shareholders and/or their affiliates
of 15% of the Common Stock triggers certain rights of other holders of the
Common Stock. Accordingly, if during the Standstill Term Shareholder or an
Affiliate or a member of a Group of which Shareholder is a member proposes to
enter into an agreement to acquire or to acquire Common Stock, Other Voting
Securities or Voting Rights representing Voting Power over 2 1/2% or more of
the issued and outstanding Common Stock of Team such Shareholder or Affiliate
or Group member shall give Team not less than 5 days written notice prior to
entering into such agreement or making such acquisition, which notice shall
describe in reasonable detail the proposed acquisition. Team shall, promptly
after receipt of such notice, take such actions as reasonably necessary to
terminate the Rights Agreement.
1.5 During the Standstill Term, sales or other dispositions of
Common Stock by Shareholder or any Affiliate or a member of a Group of which
Shareholder is a member shall be made only (a) by means of a firm commitment
underwriting pursuant to the registration rights provided in that certain
Registration Rights Agreement, of even date herewith, by and between Team and
Shareholder (the "Registration Rights Agreement") or (b) in "brokers'
transactions", as such term is defined in Rule 144(g) under the Securities Act
of 1933, as amended ("Act") or (c) in
Standstill and Voting Agreement/Page 2
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accordance with Section 6 of this Agreement. Shares of Common Stock sold
pursuant to (a) or (b) above shall pass to the purchaser free of this
Agreement, and Team shall execute such acknowledgments thereof as the selling
Shareholder or purchaser may reasonably request at the time of sale.
Section 2. Voting Agreement.
2.1 Shareholder agrees with Team that during the Standstill
Term all shares of Team Common Stock owned by Shareholder or any Affiliate or
any Group of which it is a member shall be voted in the manner recommended to
Shareholder by a majority of the members of the Board of Directors of Team as
to (a) any election of a director or directors of Team, and (b) any merger,
consolidation, dissolution, or a sale of all or substantially all of the assets
of Team; provided, however, that Shareholder (or any Affiliate or Group as the
case may be) shall be permitted in its sole discretion, to vote its shares of
Common Stock against any merger, consolidation, dissolution, or sale of all or
substantially all of the assets of Team. On all other matters submitted to a
vote of shareholders, Shareholder shall be entitled to direct the vote of its
shares of Team Voting Securities, in the manner provided in Section 2.3.
2.2 Shareholder hereby grants proxy ("Proxy") to Xxxxxxx X.
Xxxx or Xxxxx Xxxxxx ("Proxy Agents"), with full power of substitution, to vote
all of the shares of Team Common Stock owned by Shareholder on each and every
matter covered by Section 2.1(a) or (b) submitted to a vote of the Team
Shareholder during the Standstill Term. Shareholder further agrees that Team
shall have the right in its sole discretion to remove and replace such Proxy
Agents or appoint additional Proxy Agents, without notice to or consent of the
Shareholder. Such Proxies shall expire at the end of the Standstill Term.
SHAREHOLDER ACKNOWLEDGES AND AGREES THAT THE PROXIES GRANTED PURSUANT TO THIS
SECTION 2.2 ARE COUPLED WITH AN INTEREST AND SHALL BE IRREVOCABLE. Shareholder
further agrees to execute, and to cause any Affiliate or member of a Group of
which it is a member that in the future acquires any Voting Power with respect
to Team Common Stock to execute, a proxy covering the Team Common Stock or
other rights giving rise to such Voting Power, on the same terms as provided in
this Section 2.
2.3 With respect to any matter covered by Section 2.1(a) or
(b), the Shareholder and Team hereby agree that the Proxy Agents shall vote its
Proxy in the manner provided in Sections 2.1 and 2.2, and each of the Proxy
Agents is hereby irrevocably so instructed. With respect to any matter
submitted to a vote of Shareholder and which is not covered by the terms of
Section 2.1(a) or (b), the Proxy Agents shall vote such shares in the manner
instructed in writing from time to time by the Shareholder, or, in the absence
of written instructions, in the manner recommended to Shareholder by a majority
of the Board of Directors of Team.
2.4 Shareholder agrees that neither it nor any Affiliate or
Group of which it is a member that has granted or in the future grants a Proxy
pursuant to this Section 2 shall have any right to challenge, contest or object
to any procedural or other matter relating to the recommendations to
Shareholder made by the Team Board of Directors as to the voting of Common
Stock as to matters detailed in Section 2.1(a) and 2.1(b) above.
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Section 3. Legend, Stop Order, Etc..
3.1 The Shareholder and Team acknowledge and agree that the
provisions of Sections 1.5 and 6 hereof constitute reasonable restrictions on
transfer of the shares of Common Stock of the Shareholder within the meaning of
Article 2.22 of the TBCA, and that the provisions of Section 2 hereof
constitute a voting agreement within the meaning of Article 2.30B of the TBCA.
3.2 The Shareholder and Team agree that each certificate
issued to Shareholder or an Affiliate or a Group of which it is a member
representing shares of Team Common Stock shall bear the following legend, which
legend shall not be included on certificates issued upon receipt of cancelled
certificates in respect of a transfer in compliance with the terms hereof:
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE PROVISIONS
OF AN AGREEMENT BETWEEN TEAM, INC. AND XXXXXXXXX INTERNATIONAL, INC.,
AND MAY NOT BE SOLD OR TRANSFERRED EXCEPT IN ACCORDANCE WITH SUCH
AGREEMENT. THE SHARES REPRESENTED BY THIS CERTIFICATE ARE ALSO SUBJECT
TO THE PROVISIONS OF A VOTING AGREEMENT SET FORTH IN SUCH AGREEMENT, A
COUNTERPART OF WHICH HAS BEEN DEPOSITED WITH THE CORPORATION AT ITS
PRINCIPAL OFFICE, AND A COPY OF WHICH WILL BE PROVIDED TO ANY
SHAREHOLDER UPON WRITTEN REQUEST.
3.3 The Shareholder and Team acknowledge and agree that a
counterpart of this Agreement shall be deposited with Team at its principal
office.
3.4 The Shareholder consents to the entry of a stop transfer
order with the transfer agent or agents of Team securities against the transfer
of Team Voting Securities except in compliance with the requirements of this
Agreement, or if Team is its own transfer agent with respect to any Team Voting
Securities, to the refusal by Team to transfer any such securities except in
compliance with the requirements of this Agreement.
Section 4. Certain Other Agreements of Shareholder. The Shareholder
or its Affiliates or any Group of which it is a member shall not, unless the
prior written consent of Team has been obtained (and then only to the extent
express written consent has been obtained): (a) solicit proxies or become a
"participant" in a "solicitation" (as such terms are defined in Regulation 14A
under the Act) in opposition to the recommendation of the majority of the
directors of Team with respect to any matter; or (b) join or permit any
Affiliate of them to join a partnership, limited partnership, syndicate, or
other group for the purpose of acquiring, holding or disposing of Team Voting
Securities within the meaning of Section 13(d) of the Act; or (c) initiate,
propose or otherwise solicit shareholders for any matter at any time or induce
or attempt to induce any other person to initiate any shareholder proposal or a
tender offer for shares of Team securities or any change of control of Team, or
for the purpose of convening a shareholders' meeting of Team; or (d) subject to
the limitation contained in Section 1.2, acquire or permit any entity under
their control to acquire, by purchase or otherwise, more than five percent of
any class of equity securities of any entity which, prior to the time they
acquire more than five percent of such class, is publicly disclosed (by filing
with the Securities and Exchange Commission or otherwise) to be the beneficial
owner of more than five percent of any class of Team Voting Securities;
provided that if Shareholder and/or its Affiliates
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or a member of a Group of which it is a member acquires control of such entity,
Team shall have the right to purchase the Team Voting Securities owned by such
entity in accordance with Section 6.
Section 5. Representations and Warranties of Shareholder.
Shareholder hereby represents and warrants to Team that: (a) Except for the
Common Stock being acquired by it pursuant to the Stock Purchase Agreement,
neither of it nor any of its Affiliates nor any member of a Group, if any,
directly or indirectly, owns (or has any option or other right to acquire) any
Common Stock, and (b) it is not acting in concert with any person with respect
to the Common Stock.
Section 6. Right of First Refusal.
6.1 During the Standstill Term, sales or other dispositions of
Common Stock by Shareholder or any Affiliate or a member of a Group of which
Shareholder is a member shall be made only (a) by means of a firm commitment
underwriting pursuant to the registration rights provided in the Registration
Rights Agreement or (b) in "brokers' transactions", as such term is defined in
Rule 144(g) under the Securities Act of 1933, as amended ("Act") or (c) in
accordance with the terms of this Section 6. Simultaneously with notifying
Team of the exercise of its right to sell shares pursuant to subsection (a) of
this Section 6.1, Shareholder shall offer to sell Team all of the shares which
Shareholder wishes to sell pursuant to subsection 6.1(a) for a price per share
which is equal to the average closing price of Team shares as reported by the
Wall Street Journal for each of the ten trading days immediately preceding the
date of Shareholder's notice to Team.
6.2 If Shareholder shall receive a bona fide offer from a
third party or parties to purchase or otherwise acquire Common Stock therefrom
at any time, it shall have the right to sell or dispose of the amount of Common
Stock which is the subject of such offer by such third party or parties if,
prior to such sale, transfer or other disposition, Team shall have been given
the opportunity, in the following manner, to purchase such Common Stock:
(a) Shareholder shall give notice (the "Transfer
Notice") to Team in writing of such intention, specifying the name of the
proposed purchaser or transferor, the number of shares of Common Stock proposed
to be transferred, the proposed price therefor and the other material terms
upon which such disposition is proposed to be made.
(b) Team shall have the right, exercisable by written
notice given by Team within 20 business days after receipt of such Transfer
Notice to purchase (or to cause a corporation, entity, person or group
designated by Team to purchase) all, but not a part of, the shares of Common
Stock specified in such Transfer Notice for cash at the price set forth
therein. If Team exercises its right of first refusal hereunder, the closing
of the purchase of the shares of Common Stock with respect to which such right
has been exercised shall take place within the later to occur of 30 business
days after the date of the notice by Team or seven business days after receipt
by Team of any required governmental or Shareholder' approvals and any
necessary financing is approved and obtained (which must be obtained, if at
all, within 45 days of Team's receipt of the Transfer Notice). Upon exercise
of its right of first refusal, Team shall be legally obligated to use its best
efforts to secure all approvals required in connection therewith and shall be
liable in damages to the selling party if any failure of Team to perform its
obligations hereunder shall result in the failure of such purchase to occur.
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If the purchase price specified in the Transfer Notice includes any
property other than cash, such purchase price shall be deemed to be the amount
of any cash included in the purchase price plus the value (as jointly
determined by nationally recognized investment banking firms selected by each
party or, in the event such firms are unable to agree, a third nationally
recognized investment banking firm to be selected by them) of such other
property including in such price. For this purpose: (1) The parties shall use
their best efforts to cause any determination of the value of any property
included in the purchase price to be made within seven days after the date of
delivery of the Transfer Notice; if the firms selected by the selling party and
Team are unable to agree upon the value of any such property within such seven
day period, the firms shall promptly select a third firm whose determination
shall be conclusive; and (2) the date on which Team must exercise its right of
first refusal shall be extended until seven days after the determination of the
value of property included in the purchase price.
(c) If Team does not exercise its right of first
refusal hereunder within the time specified for such exercise, the party giving
the Transfer Notice shall be free during the period of 90 calendar days
following the expiration of such time for exercise to sell the shares of Common
Stock specified in such Notice to the person and at the price specified therein
or at any price in excess thereof and, if such sale is consummated, such shares
of Common Stock shall be transferred free of the terms and provisions of this
Agreement.
6.3 In the event that any person shall make a tender or
exchange offer ("Tender Offer") for more than 20% of the outstanding Common
Stock of Team prior to the termination of this Agreement, Shareholder shall not
tender any Common Stock pursuant to such Tender Offer unless it gives notice to
Team no later than six days prior to the last day when securities may be
tendered in order to be accepted under such offer or to qualify for any
proration applicable to such offer (the "Tender Date") that it intends to
tender a specified number of shares of Common Stock pursuant to such offer.
For purposes hereof a Tender Offer to purchase shares of Common Stock shall be
deemed to be an offer at the price specified therein, without regard to any
provisions thereof with respect to proration or conditions to the offeror's
obligation to purchase. If notice is given, Team shall have the right,
exercisable by giving notice to Shareholder at least two days prior to the
Tender Date, to purchase or cause its designee to purchase the number of shares
of Common Stock specified in Shareholder's notice for cash. If Team exercises
such right by giving such notice, the closing of the purchase of the Common
Stock shall take place not later than one day prior to the Tender Date;
provided, however, that if the purchase price specified in the Tender Offer
includes any property other than cash, the closing shall occur within 30
calendar days after Team gives notice of the exercise of its right of first
refusal hereunder, and the value of any property included in the purchase price
shall be determined pursuant to the provisions of Section 6.2(b). If Team does
not exercise such right by giving such notice, then Shareholder shall be free
to accept the Tender Offer with respect to which such notice of exercise was
given. Shareholder shall have the right to withdraw such notice (whether or
not Team shall have theretofore given notice of withdrawal to Team at any time
up to the earlier of the closing of any purchase by Shareholder) or its
designee or the Tender Date. At any time on or before the day prior to the
Tender Date, Team shall have the right to withdraw its notice to Stockholder
and decline to purchase the common Stock in which event Shareholder shall be
free to tender its Common Stock pursuant to such offer. The purchase price to
be paid by Team or its designee pursuant to this Section 6.3 shall be (i) if
such Tender Offer is consummated, the purchase price that Shareholder would
have received if it had tendered its Common Stock and such Common Stock had
been purchased in such Tender Offer, including any
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increase in the price paid by the tender offeror after exercise by Team of its
right of first refusal hereunder, or (ii) if such Tender Offer is not
consummated, the highest price offered pursuant thereto, in each case with
property, if any, to be valued pursuant to the provisions of Section 6.2(b).
In the event that a Tender Offer is consummated, shares transferred to the
tender offeror in accordance with this Section 6.3 shall be transferred free of
the terms of this Agreement.
6.4 In the event that Team elects to exercise its rights of
first refusal under this Section 6, Team may specify in its notice of intention
to exercise such right another person as its designee to purchase the Common
Stock to which such notice relates. If Team shall designate another person as
the purchaser pursuant to this Section 6, this giving of notice of acceptance
of the right of first refusal by Team shall constitute a legally binding
obligation of Team to complete such purchase if such person shall fail to do
so; provided, however, that Team shall have its rights to withdrawal provided
for in this Section 6.
6.5 The pledge by Shareholder of its Common Stock to secure
indebtedness incurred by Shareholder or its Affiliates to a lending institution
not Affiliated with Shareholder shall not constitute a sale or other
disposition under Section 6.1 so long as no event of default has occurred under
such pledge or the underlying indebtedness; provided, however, that the
instruments creating such lending institution's security interest shall provide
that such lending institution shall notify the Company upon the occurrence of
any event of default under such instruments, and such instruments shall include
the agreement of such lending institution to comply with the provisions of this
Section 6 in its sale or disposition of the Shares under such instruments. The
Parties hereby agree that, in the event of a sale or a disposition of shares in
accordance with this Section 6, such shares shall be transferred free of the
terms of this Agreement and such lending institution is a permitted assignee of
Shareholder's rights under Section 10(e) of the Registration Rights Agreement.
Section 7. Miscellaneous Provisions.
7.1 The Parties acknowledge and agree that irreparable damage
would occur in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise breached.
It is accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of the provisions of this Agreement and to
enforce specifically the terms and provisions hereof in any court of the United
States or any state thereof having jurisdiction, this being in addition to any
other remedy to which they may be entitled at law or equity.
7.2 No Party shall issue any press release or make any public
announcement relating to the subject matter of this Agreement prior to the
Closing without the prior written approval of Team and Shareholder; provided,
however, that any Party may make any public disclosure it believes in good
faith is required by applicable law or any listing or trading agreement
concerning its publicly-traded securities (in which case the disclosing Party
will use its reasonable efforts to advise the other Parties prior to making the
disclosure).
7.3 This Agreement shall not confer any rights or
remedies upon any Person other than the Parties and their respective successors
and permitted assigns.
Standstill and Voting Agreement/Page 7
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7.4 This Agreement (including the documents referred to
herein) constitutes the entire agreement among the Parties and supersedes any
prior understandings, agreements, or representations by or among the Parties,
written or oral, to the extent they have related in any way to the subject
matter hereof.
7.5 This Agreement shall be binding upon and inure to the
benefit of the Parties named herein and their respective successors and
permitted assigns. No Party may assign either this Agreement or any of his or
its rights, interests, or obligations hereunder without the prior written
approval of the Buyer and the Seller.
7.6 This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together will constitute one and the same instrument.
7.7 The Section headings contained in this Agreement are
inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
7.8 All notices, requests, demands, claims, and other
communications hereunder will be in writing. Any notice, request, demand,
claim, or other communication hereunder shall be deemed duly given if (and then
two business days after) it is sent by registered or certified mail, return
receipt requested, postage prepaid, and addressed to the intended recipient as
set forth below.
If to Team: Team, Inc.
X.X. Xxx 000
Xxxxx, Xxxxx 00000-0000
Attn: Xxxxxxx X. Xxxx, President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Copy to: Chamberlain, Hrdlicka, White, Xxxxxxxx
& Xxxxxx
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000-0000
Attn: Xxxxxx X. Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to Shareholder: Xxxxxxxxx International, Inc.
0000 XX Xxxxx Xxxx., 0xx Xxxxx
Xxxxxx, Xxxxxxx 00000-0000
Attn: X. X. Xxxxxxxxx, President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Standstill and Voting Agreement/Page 8
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Copy to: J. Xxxxxx Xxxxxx, Esq.
General Counsel
Xxxxxxxxx International, Inc.
0000 XX Xxxxx Xxxx., 0xx Xxxxx
Xxxxxx, Xxxxxxx 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Any Party may send any notice, request, demand, claim, or other communication
hereunder to the intended recipient at the address set forth above using any
other means (including personal delivery, expedited courier, messenger service,
telecopy, telex, ordinary mail, or electronic mail), but no such notice,
request, demand, claim, or other communication shall be deemed to have been
duly given unless and until it actually is received by the intended recipient.
Any Party may change the address to which notices, requests, demands, claims,
and other communications hereunder are to be delivered by giving the other
Parties notice in the manner herein set forth.
7.9 This Agreement shall be governed by and construed in
accordance with the domestic laws of the State of Texas without giving effect
to any choice or conflict of law provision or rule (whether of the State of
Texas or any other jurisdiction) that would cause the application of the laws
of any jurisdiction other than the State of Texas.
7.10 No amendment of any provision of this Agreement shall be
valid unless the same shall be in writing and signed by Team and Shareholder.
No waiver by any Party of any default, misrepresentation, or breach of warranty
or covenant hereunder, whether intentional or not, shall be deemed to extend to
any prior or subsequent default, misrepresentation, or breach of warranty or
covenant hereunder or affect in any way any rights arising by virtue of any
prior or subsequent such occurrence.
7.11 Any term or provision of this Agreement that is invalid or
unenforceable in any situation in any jurisdiction shall not affect the
validity or enforceability of the remaining terms and provisions hereof or the
validity or enforceability of the offending term or provision in any other
situation or in any other jurisdiction.
7.12 Each of the Parties will bear its own costs and expenses
(including legal fees and expenses) incurred in connection with this Agreement
and the transactions contemplated hereby.
7.13 The Parties have participated jointly in the negotiation
and drafting of this Agreement. In the event an ambiguity or question of
intent or interpretation arises, this Agreement shall be construed as if
drafted jointly by the Parties and no presumption or burden of proof shall
arise favoring or disfavoring any Party by virtue of the authorship of any of
the provisions of this Agreement. Any reference to any federal, state, local,
or foreign statute or law shall be deemed also to refer to all rules and
regulations promulgated thereunder, unless the context requires otherwise. The
word "including" shall mean including without limitation.
Section 8. Termination. Team and the Shareholder acknowledge and
agree that in the event that at any election of directors of Team, directors
other than directors nominated or
Standstill and Voting Agreement/Page 9
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recommended by the Board of Directors of Team are elected with the result that
after such election (including after any challenges, objections or disputes
regarding the solicitation or validity of proxies relating to such election or
any other matter relating to such election have been fully and finally resolved
with no further right of appeal) directors other than directors nominated or
recommended by the Board of Directors of Team constitute a majority of the
Board of Directors (such event being referred to hereinafter as a "Change in
Control"), then the objective of this Agreement of promoting management
stability will not have been accomplished and will not be further served by
this Agreement. Therefore, Team and the Shareholder agree that this Agreement
shall terminate upon a Change of Control.
Section 9. Conduct with Respect to Employees. Except with the
written consent of the other Party, neither Party nor any of its Affiliates
shall employ, during the Standstill Term and for six months thereafter, any
person employed by the other Party or any of its Affiliates at or at any time
within six months prior to the date on which such Party proposes to employ such
person, unless such person was previously terminated by the other Party.
IN WITNESS WHEREOF, the Parties have executed this Agreement on the date
first above written.
SHAREHOLDER:
XXXXXXXXX INTERNATIONAL, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
------------------------------------------------
Xxxxxxx X. Xxxxxxxxx, President and Chief
Executive Officer
TEAM, INC.
By: /s/ Xxxxxxx X. Xxxx
-------------------------------------------------
Xxxxxxx X. Xxxx, Chairman of the Board
and President
Standstill and Voting Agreement/Page 10
