-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, TyP+5jWff1TLop3Y7nX9zbeFXQRIucqpSGZuJytkqZQpMescT7tpMJbEd9KvWk9Z d+ZQaatA5T8qNoc0DySdYA== 0000950129-98-003560.txt : 19980818 0000950129-98-003560.hdr.sgml : 19980818 ACCESSION NUMBER: 0000950129-98-003560 CONFORMED SUBMISSION TYPE: 10-K405 PUBLIC DOCUMENT COUNT: 7 CONFORMED PERIOD OF REPORT: 19980531 FILED AS OF DATE: 19980817 SROS: AMEX FILER: COMPANY DATA: COMPANY CONFORMED NAME: TEAM INC CENTRAL INDEX KEY: 0000318833 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-MISCELLANEOUS REPAIR SERVICES [7600] IRS NUMBER: 741765729 STATE OF INCORPORATION: TX FISCAL YEAR END: 0531 FILING VALUES: FORM TYPE: 10-K405 SEC ACT: SEC FILE NUMBER: 000-09950 FILM NUMBER: 98692763 BUSINESS ADDRESS: STREET 1: 200 HERMANN DRIVE CITY: ALVIN STATE: TX ZIP: 77511 BUSINESS PHONE: 281-331-6154 MAIL ADDRESS: STREET 1: 1019 SOUTH HOOD STREET CITY: ALVIN STATE: TX ZIP: 77551 10-K405 1 TEAM, INC. - 6/30/98 1 - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION Washington D.C. 20549 --------------------- FORM 10-K [X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 FOR THE FISCAL YEAR ENDED MAY 31, 1998 OR [ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 FOR THE TRANSITION PERIOD FROM TO COMMISSION FILE NUMBER 0-9950 --------------------- TEAM, INC. (Exact name of registrant as specified in its charter) TEXAS 74-1765729 (State of incorporation) (I.R.S. Employer Identification No.) 200 HERMANN DRIVE, ALVIN, TEXAS 77511 (Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (281) 331-6154 --------------------- Securities registered pursuant to Section 12(b) of the Act:
NAME OF EACH EXCHANGE TITLE OF EACH CLASS ON WHICH REGISTERED ------------------- --------------------- Common Stock, $.30 par value American Stock Exchange, Inc.
Securities registered pursuant to Section 12(g) of the Act: NONE --------------------- Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. YES [X] NO [ ] Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of registrant's knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K. [X] As of July 20, 1998, 7,294,952 shares of the registrant's common stock were outstanding, and the aggregate market value of common stock held by non-affiliates of the registrant (based upon the closing sales price of common stock on the American Stock Exchange, Inc. on such date) was approximately $35,562,891. DOCUMENTS INCORPORATED BY REFERENCE Part III. Portions of the Definitive Proxy Statement for the 1998 Annual Meeting of Shareholders of Team, Inc. to be held October 16, 1998. - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- 2 FORM 10-K INDEX PART I
PAGE ---- Item 1. Business.................................................... 2 Item 2. Properties.................................................. 6 Item 3. Legal Proceedings........................................... 7 Item 4. Submission of Matters to a Vote of Security Holders......... 7 PART II Item 5. Market for Team's Common Equity and Related Stockholder Matters................................................... 8 Item 6. Selected Financial Data..................................... 9 Item 7. Management's Discussion and Analysis of Financial Condition and Results of Operations................................. 10 Item 8. Consolidated Financial Statements and Supplementary Data.... 13 Item 9. Changes in and Disagreements with Accountants on Accounting and Financial Disclosure.................................. 29 PART III Item 10. Directors and Executive and Other Officers of Team.......... 29 Item 11. Executive Compensation...................................... 29 Item 12. Security Ownership of Certain Beneficial Owners and Management................................................ 29 Item 13. Certain Relationships and Related Transactions.............. 29 PART IV Item 14. Exhibits, Financial Statement Schedules and Reports on Form 8-K....................................................... 29
3 PART I. ITEM 1. BUSINESS (a) General Development of Business Team, Inc. ("Team" or the "Company"), incorporated in 1973, is a professional full service provider of industrial repair services including leak repair, hot tapping, emissions control, concrete repair and energy management services. These services, which are the core of Team's operations, are provided by a subsidiary of the Company, Team Industrial Services, Inc. The Company, through its domestic subsidiaries, operates in 40 locations throughout the United States and three international subsidiaries in England, Trinidad and Singapore. Additionally, certain industrial services are offered internationally by the Company through 14 licensees operating in 14 countries. The Company believes that the aging of industrial plants should result in increasing demand by the Company's customers for its industrial services. Additionally, the Company intends to expand its business by marketing more of its services to existing customers, marketing its services to new customers and expanding geographically, both domestically and internationally. Team may also increase its services through acquisitions or internal development of new services and technologies. In fiscal 1998, the Company's revenues were $45.5 million compared to $43.7 million in fiscal 1997. The Company's net profit from continuing operations net of income tax was $1.4 million in fiscal 1998 compared to a net profit from continuing operations of $759,000 in the corresponding period of fiscal 1997. The increase in revenues primarily relates to increases in revenues in the Company's hot tapping service line. The improvement in net earnings from continuing operations reflects the continuing impact of cost reduction programs implemented in prior years. On July 3, 1998, subsequent to year end, the Company entered into a definitive purchase agreement to acquire the stock of Climax Portable Machine Tools, Inc. ("Climax") of Newberg, Oregon. The aggregate consideration is expected to be approximately $7.2 million in cash and stock. Climax is a designer-manufacturer of portable, metal cutting machine tools used for on-site industrial maintenance. Climax had total revenues of $11.3 million for year ended December 31, 1997. The transaction is expected to be finalized by the end of August 1998. The Company did not declare or pay a dividend in fiscal 1998. Pursuant to the Company's Credit Agreement, the Company may not pay quarterly dividends without the consent of its primary lender. Additionally, the declaration of future dividends will depend on the Company's financial condition, market conditions and other matters deemed relevant by the Board of Directors. (b) Narrative Description of Business INDUSTRIAL SERVICES General. The Company's industrial repair services are provided through Team Industrial Services, Inc. These services consist of leak repair, hot tapping, emissions control, concrete repair, as well as energy management. The Company is the leader in the industry in providing on-stream repairs of leaks in piping systems and related equipment. In conjunction with its leak repair services, the Company markets a line of products, which includes both standard and custom-designed clamps and enclosures for plant systems and pipelines. The Company's monitoring services provide fugitive emissions monitoring and reporting as required by the U.S. Environmental Protection Agency ("EPA") and state and local agencies. The Company provides these services for approximately 3,000 customers in the chemical, petrochemical, refining, pulp and paper, power, steel and other industries. 2 4 Below is a summary of revenues by service line as compared to the Company's consolidated revenues:
YEAR ENDED MAY 31, ------------------ 1998 1997 1996 ---- ---- ---- Leak Repair Services........................................ 65% 69% 63% Hot Tapping Services........................................ 18% 12% 11% Emissions Control Services.................................. 13% 16% 24% (Including consulting and engineering)
Team's industrial services operate through 40 domestic locations in 23 states and three international operating locations in England, Trinidad and Singapore. In addition, certain services are offered by the Company internationally through licensees operating in 14 countries. Leak Repair Services. The Company's leak repair services consist of on-stream repairs of leaks in pipes, valves, flanges and other parts of piping systems and related equipment primarily in the chemical, refining and utility industries. The Company uses specially developed techniques, sealants and equipment for repairs. Many of the Company's repairs are furnished as interim measures which allow plant systems to continue operating until more permanent repairs can be made during scheduled plant shutdowns. The Company's leak repair services involve inspection of the leak by the Company's field crew who records pertinent information about the faulty part of the system and transmits the information to the Company's engineering department for determination of appropriate repair techniques. Repair materials such as clamps and enclosures are custom designed and manufactured at the Company's facility in Alvin, Texas and delivered to the job site. The Company maintains an inventory of raw materials and semi-finished clamps and enclosures to reduce the time required to manufacture the finished product. Installations of the clamps and enclosures for on-stream repair work are then performed by the field crew using, in large part, materials and sealants that are developed and produced by the Company. The Company's manufacturing center earned the international ISO-9001 certification for its engineering design and manufacturing operations last year. ISO-9001 is the most stringent of all ISO-9000 certification programs. The Company's non-destructive repair methods do not compromise the integrity of its customer's process system and can be performed in temperatures ranging from cryogenic to 1,700 degrees Fahrenheit and with pressures from vacuum to 6,000 pounds per square inch. The Company's proprietary sealants are specifically formulated to repair leaks involving over 300 different kinds of chemicals. Management attributes the success of its leak repair services to be substantially due to the quality and timely performance of its services by its highly skilled in-house trained technicians, its proprietary techniques and materials and its ability to repair leaks without shutting down the customer's operating system. On-stream repairs can prevent a customer's continued loss of energy or process materials through leaks, thereby avoiding costly energy and production losses that accompany equipment shutdowns, and also lessen fugitive emissions escaping into the atmosphere. The Company has continued to develop different types of standard and custom-designed clamps, enclosures and other repair products, which complement the Company's existing industrial market for leak repair services. The Company's leak repair services are supported by an in-house Quality Assurance/Quality Control program that monitors the design and manufacture of each product to assure material traceability on critical jobs and to ensure compliance with customers' requirements. Hot Tapping Services. The Company's hot tapping services consist primarily of hot tapping and Line-stop(R) services. Hot tapping services involve utilizing special equipment to cut a hole in an on-stream, pressurized pipeline so that a new line can be connected onto the existing line without interrupting operations. Hot tapping is frequently used for making branch connections into piping systems while the production process is operative. Line-stop(R) services permit the line to be depressurized downstream so that maintenance work can be performed on the piping system. The Company typically performs these services by mechanically drilling 3 5 and cutting into the pipeline and installing a device to stop the process flow. The Company also utilizes a line freezing procedure when applicable to stop the process flow using special equipment and techniques. Emissions Control Services. The Company also provides leak detection services that include fugitive emissions identification, monitoring, data management and reporting services primarily for the chemical, refining and natural gas processing industries. These services are designed to monitor and record emissions from specific process equipment components as requested by the customer, typically to assist the customer in establishing an ongoing maintenance program and/or complying with present and/or future environmental regulations. The Company prepares standard reports in conjunction with EPA requirements or can custom-design these reports to its customers' specifications. The Company is currently replacing the Teamware(R) software system with ELDAC's(R) to include new features that enhance the data management capabilities and allow for more useful customer interaction with their emissions program. Concrete Repair Services. Concrete repair is a complex process presenting unique challenges very different from those in new concrete construction. Concrete repairs must integrate new and old materials to form a composite capable of enduring the various exposures of use, the environment and time. Concrete repair is an integrative process of damage analysis, repair material and techniques selection and application. A thorough examination and evaluation of the concrete deterioration problem is performed by Team's highly trained and experienced concrete technician. Selection of the proper materials and methodology is custom designed to meet the specific requirements of each individual customer. Specialized crews are then assigned to perform the specified services, including general concrete surface repair, crack and expansion joint repair using chemical grouts, epoxy resins or sealants, and high-performance protective coating or lining systems. Energy Management Services. The Company's energy management procedures are performed by trained and experienced technicians. This program pinpoints energy losses as a result of failed or misapplied steam traps in a plant. In an analysis of a system, steam traps are tagged, monitored and surveyed using two of three methods -- visual, pyrometer or an ultrasonic listening device. The results of the analysis are reported in a detailed performance report that reflects the complete inventory, history, warranties, model, location, condition, etc. and inefficiencies for all the traps with the recommendation of an appropriate trap maintenance and corrective action, if necessary. The performance report can be customized to fit the needs of the facility. The Company's technicians provide complete turnkey maintenance programs and can pinpoint and quantify hidden, costly gas or vacuum leakage using a hand-held detector. Marketing and Customers. Team's industrial repair services are marketed principally by marketing and professional personnel based at the Company's various locations. These services are provided through the Company's 40 domestic locations. The Company has developed a cross-marketing program to utilize its sales personnel in offering many of the Company's services at its operating locations. Management believes that these operating and office locations are situated to facilitate timely response to customer needs, which is an important feature of its services. No customer accounted for 10% or more of consolidated Company revenues during any of the last three fiscal years. Generally, customers are billed on a time and materials basis although some work may be performed pursuant to a fixed-price bid. Emission control services are typically billed based on the number of components monitored. Services are usually performed pursuant to purchase orders issued under written customer agreements. While some purchase orders provide for the performance of a single job, others provide for services to be performed for a term of one year or less. In addition, Team is party to certain long-term contracts. Substantially all such agreements may be terminated by either party on short notice. The agreements generally specify the range of services to be performed and the hourly rates for labor. While contracts have traditionally been entered into for specific plants or locations over the past few years, the Company has entered into several regional or national contracts which cover multiple plants or locations. The Company's leak repair services are available 24 hours a day, seven days a week, 365 days a year. The Company typically provides various limited warranties for certain of its repair services. To date, there have been no significant warranty claims filed against the Company. 4 6 Business Strategy. The Company believes that the aging of its customers' plants should result in increasing demand for its industrial services. Additionally, the Company intends to expand its business by marketing more of its services to existing customers, new customers and expanding geographically, both domestically and internationally. Team may also increase its services through acquisitions, joint ventures, or internal development of new services and technologies. A variety of risks are inherent in this strategy. Marketing efforts may not generate increases in revenues as expected; although management believes sufficient qualified personnel are available in most areas, no assurance can be made that such personnel will be available when needed; growth may require additional capital that the Company may be unable to obtain; and the Company may be unable to develop profitable new services and technologies or acquire companies that provide such services on terms that permit an acceptable rate of return. Additionally, weak economics in the markets served by the Company may constrain market demand. Although the Company has a diversified customer base, a substantial portion of its business is dependent upon the chemical and refining industry sectors. No assurance can be given that the Company will be able to implement its business strategy. Competition. Competition in the Company's industrial services is primarily on the basis of service, product performance and price. In general, competition stems from other outside service contractors and customers' in-house maintenance departments. Team believes it has a competitive advantage due to its ability to perform quality leak repair services on a timely basis, using special techniques and materials, while the customers' equipment remains in service. Management believes Team has a competitive advantage over most outside service contractors due to its in-house and customer site-specific trained technicians who are approved for immediate entry into the customer's facility, proprietary sealant materials, 40 domestic locations and ISO-9001 quality procedures and specifications. If, however, customers emphasize price over service and product performance, the Company's competitive advantage may be impaired. Management knows of one outside service contractor of a similar size with which the Company generally competes for leak repair business. Other principal competitors are primarily regionally-based companies that compete within a certain geographical area. Miscellaneous. In general, the demand for the Company's leak repair services varies with the length of time between scheduled plant maintenance shutdowns. Also, the Company often experiences increased leak repair demand by customers in the winter due to the effect of weather conditions on piping systems and decreased leak repair demand in the late spring and summer due primarily to the timing of scheduled plant shutdowns. The demand for the Company's emissions control services varies with the level of regulatory requirements, operations of its customers and the energy or product cost savings that may result from the Company's services. To complement its leak repair operations in the United States, the Company has a wholly-owned subsidiary in the United Kingdom which operates as Team Industrial Services, Ltd. In addition, to date, the Company has entered into license agreements in North America, South America, Australia, the Pacific Rim, Europe and the Mid-East. Most licensees are required to make a cash payment as initial consideration for the grant, by the joint venture, of the license. Substantially all licensees are required to make ongoing royalty payments, typically based on a percentage of its gross revenues from licensed operations. To date, revenues to the Company under these agreements have not been material. The Company is continuing to expand its services outside the United States and expects to pursue similar license agreements for the use of Company technology with other companies internationally. In addition, the Company is expanding the technology it provides under such license agreements to include fugitive emissions monitoring. During last fiscal year, the Company entered into a joint venture with a company in Trinidad and Tobago, West Indies to provide services to agrichemical, natural gas processing and oil refinery plants in Trinidad and anticipates expanding to neighboring islands of the Caribbean. Additionally, in fiscal 1998, the Company commenced operations in Singapore and, in June, 1998, formed a wholly owned subsidiary to conduct leak sealing and hot tapping services in that part of the world. Also, early during this fiscal year, Team entered into a strategic business alliance with Armstrong International Inc. ("Armstrong"). Armstrong is an important provider of specialized energy management technology around the world. Team will work with Armstrong on 5 7 specially engineered projects to provide the highly technical labor force needed to carry out these projects. The alliance thus blends the capabilities of one of the foremost equipment and technology suppliers with the expertise of the leading service provider, forming a market force with excellent potential for service and growth. Armstrong is an important provider of specialized energy management technology around the world, and a holder of 11% of Team's issued common stock at May 31, 1998. From time-to-time in the operation of its environmental consulting and engineering services, the assets of which were sold in 1996, the Company handled small quantities of certain hazardous wastes or other substances generated by its customers. Under the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (the "Superfund Act"), the EPA is authorized to take administrative and judicial action to either cause parties who are responsible under the Superfund Act for cleaning up any unauthorized release of hazardous substances to do so, or to clean up such hazardous substances and to seek reimbursement of the costs thereof from the responsible parties, who are jointly and severally liable for such costs under the Superfund Act. The EPA may also bring suit for treble damages from responsible parties who unreasonably refuse to voluntarily participate in such a clean up or funding thereof. Responsible parties include anyone who owns or operates the facility where the release occurred (either currently and/or at the time such hazardous substances were disposed of), or who by contract arranges for disposal, treatment, or transportation for disposal or treatment of a hazardous substance, or who accepts hazardous substances for transport to disposal or treatment facilities selected by such person from which there is a release. Management believes that its risk of liability is minimized since its handling consisted solely of maintaining and storing small samples of materials for laboratory analysis that are classified as hazardous. The Company does not currently carry insurance to cover liabilities which the Company may incur under the Superfund Act or similar environmental statutes due to its prohibitive costs. GENERAL Employees. As of May 31, 1998, the Company and its subsidiaries had 480 employees in its operations, consisting of 195 salaried and 285 hourly personnel. The Company's employees are not unionized. There have been no employee work stoppages to date, and management believes its relations with its employees are good. Insurance. The Company carries insurance it believes to be appropriate for the businesses in which it is engaged. Under its insurance policies, the Company has per occurrence self-insured retention limits of $25,000 for general liability, $100,000 for professional liability, $250,000 for automobile liability and workers' compensation in most states. The Company has obtained fully insured layers of coverage above such self-retention limits. Since its inception, the Company has not been the subject of any significant liability claims not covered by insurance arising from the furnishing of its services or products to customers. However, because of the nature of the Company's business, there exists the risk that in the future such liability claims could be asserted which might not be covered by insurance. Regulation. Substantially all of the Company's business activities are subject to federal, state and local laws and regulations. These regulations are administered by various federal, state and local health and safety and environmental agencies and authorities, including the Occupational Safety and Health Administration ("OSHA") of the U.S. Department of Labor and the EPA. The Company's training programs are required to meet certain OSHA standards. Expenditures relating to such regulations are made in the normal course of the Company's business and are neither material nor place the Company at any competitive disadvantage. The Company does not currently expect to expend material amounts for compliance with such laws during the ensuing two fiscal years. Patents. While the Company is the holder of various patents, trademarks, and licenses, the Company does not consider any individual property to be material to its consolidated business operations. ITEM 2. PROPERTIES Team and its subsidiaries own real estate and office facilities in the Alvin, Texas area totaling approximately 98,000 square feet of floor space. These facilities, (corporate offices and training facility and a manufacturing facility), are pledged as security for a term note. See Note (6) of Notes to Consolidated 6 8 Financial Statements for information regarding the term note. The Company and its subsidiaries also lease 33 office and/or plant and shop facilities at separate locations in 20 states. In addition, the Company owns real property and office facilities in Houston, Texas previously used in its discontinued infrastructure operations which are currently being leased to a third party pursuant to a long-term lease agreement. As of May 31, 1998, the Company owned or leased 191 light trucks which are primarily repair service trucks used in performing industrial repair services and 110 passenger cars used by the Company's salesmen, managers, officers and other employees primarily in sales, administrative and management functions. The Company believes that its property and equipment, as well as that of its subsidiaries, are adequate for its current needs, although additional investments are expected to be made in additional property and equipment for expansion, replacement of assets at the end of their useful lives and in connection with corporate development activities. See "Management's Discussion and Analysis of Financial Condition and Results of Operations" and Note (8) of Notes to Consolidated Financial Statements for information regarding lease obligations on these properties. ITEM 3. LEGAL PROCEEDINGS Allstate Vacuum & Tanks, Inc. ("Allstate"), a former subsidiary of the Company, was identified in the mid-1980s as a potentially responsible party ("PRP") in connection with the Sheridan Disposal Superfund Site (the "Sheridan Site") near Hempstead, Texas. Allstate was ultimately classified as a PRP that had generated or delivered only de minimis amounts of waste to the Sheridan Site along with other small PRPs and was offered the opportunity to enter into a de minimis party settlement (the "Settlement Agreement") among various settling PRPs ("Settling PRPs"), including various small PRPs and the large waste volume PRPs (the "Major PRPs"). In September, 1989, the Company, on behalf of Allstate, entered into the Settlement Agreement and paid a total settlement amount of $101,700 to settle its liability and acquire indemnification from the Major PRPs against any remediation costs in excess of the settlement payment made by the Company. This Settlement Agreement remains in effect. The Settling PRPs also entered into a consent decree ("Consent Decree") with the EPA to resolve their liability in this matter in accordance with the Settlement Agreement. Such Consent Decree was filed in the United States District Court for the Southern District of Texas in December 1991. A Motion for Entry of the Consent Decree was filed by the EPA in March 1992, and various Amended Motions for Entry of Consent Decree were subsequently filed. On July 21, 1998, the Company confirmed that the court finally approved the Consent Decree in October 1997, and that the Consent Decree is in effect. Based on all of the foregoing, the Company does not anticipate incurring any additional liability for the Sheridan Site. The Company and certain subsidiaries are involved in various lawsuits and subject to various claims and proceedings encountered in the normal conduct of business. In the opinion of management, any uninsured losses that might arise from these lawsuits and proceedings will not have a material adverse affect on the Company's consolidated financial statements. ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS No matters were submitted to a vote of security holders during the fourth quarter of fiscal 1998. 7 9 PART II. ITEM 5. MARKET FOR TEAM'S COMMON EQUITY AND RELATED STOCKHOLDER MATTERS (a) Market Information Team's common stock is traded on the American Stock Exchange, Inc. under the symbol "TMI". The table below reflects the high and low sales prices of the Company's common stock on the American Stock Exchange by fiscal quarter for the fiscal years ended May 31, 1998 and 1997, respectively.
SALES PRICE ---------------------- HIGH LOW ---- --- FISCAL 1998 Quarter Ended: August 31.............................................. $3 7/16 $1 5/8 November 30............................................ 4 2 7/8 February 28............................................ 4 3 3/8 May 31................................................. 5 3/8 3 FISCAL 1997 Quarter Ended: August 31.............................................. $2 5/8 $1 3/4 November 30............................................ 1 7/8 1 1/2 February 28............................................ 1 15/16 1 1/2 May 31................................................. 1 15/16 1 1/2
(b) Holders There were 446 holders of record of Team's common stock as of July 20, 1998, excluding beneficial owners of stock held in street name. Although exact information is unavailable, the Company estimates there are approximately 1,000 additional beneficial owners based upon information gathered in connection with proxy solicitation. (c) Dividends No dividends were declared or paid in fiscal 1998 or fiscal 1997. Pursuant to the Company's Credit Agreement, the Company may not pay quarterly dividends without the consent of its primary lender. Additionally, future dividend payments will continue to depend on Team's financial condition, market conditions and other matters deemed relevant by the Board of Directors. (d) Recent Sales of Unregistered Securities The Company issued 1,200,000 shares of Common Stock to Houston Post Oak Partners, Ltd. in exchange for cash in the amount of $2.75 per share, for a total of $3,300,000, in accordance with the terms and conditions of the Stock Purchase Agreement, effective as of June 19, 1998 (the "Stock Purchase Agreement"). The Company did not use underwriters in the sale to Houston Post Oak Partners, Ltd. The Company paid no underwriting discount or commission on the sale to Houston Post Oak Partners, Ltd. The shares of Common Stock issued to Houston Post Oak Partners, Ltd. were issued in a private transaction exempt from registration under the Securities Act of 1933, as amended (the "Act"), pursuant to Section 4(2) thereof as a "transaction by an issuer not involving any public offering" in accordance with the terms of the issuance as set forth in the Satisfaction Agreement and the Stock Purchase Agreement, respectively. In issuing such shares in reliance on such exemption, the Company is relying upon representations and warranties of Houston Post Oak Partners, Ltd. with respect to (i) their financial capacity, business 8 10 experience, and business and legal advisors; (ii) the fact that they acquired these shares for investment purposes only and understood the transfer restrictions thereon; and (iii) the fact that they reviewed the information and materials about the Company and its shares made available by the Company in connection with its acquisition of such shares, which was personally negotiated at arms-length between Houston Post Oak Partners, Ltd., on the one hand, and the Company on the other hand. None of the unregistered securities sold to Houston Post Oak Partners, Ltd. are convertible or exchangeable into other equity securities, nor do such unregistered securities constitute warrants or options. ITEM 6. SELECTED FINANCIAL DATA The following is a summary of certain consolidated financial information regarding the Company for the five years ended May 31, 1998.
YEAR ENDED MAY 31, ----------------------------------------------- 1998 1997 1996 1995 1994 ------- ------- ------- ------- ------- (IN THOUSANDS, EXCEPT PER SHARE AMOUNTS) Revenues..................................... $45,457 $43,655 $47,449 $50,816 $56,891 ======= ======= ======= ======= ======= Earnings (Loss) from Continuing Operations, Net of Income Taxes........................ $ 1,393 $ 759 $(8,744) $(1,105) $ 935 Earnings (Loss) from Discontinued Operations, Net of Income Taxes........................ -- 1 (534) (4,869) (1,254) ------- ------- ------- ------- ------- Net Earnings (Loss).......................... $ 1,393 $ 760 $(9,278) $(5,974) $ (319) ======= ======= ======= ======= ======= Earnings (Loss) Per Common Share -- Basic: Earnings (Loss) from Continuing Operations.............................. $ 0.23 $ 0.15 $ (1.70) $ (0.22) $ 0.18 Earnings (Loss) from Discontinued Operations.............................. -- 0.00 (0.10) (0.94) (0.24) ------- ------- ------- ------- ------- Net Earnings (Loss)........................ $ 0.23 $ 0.15 $ (1.80) $ (1.16) $ (0.06) ======= ======= ======= ======= ======= Earnings (Loss) Per Common Share -- Diluted: Earnings (Loss) from Continuing Operations.............................. $ 0.23 $ 0.15 $ (1.70) $ (0.22) $ 0.18 Earnings (Loss) from Discontinued Operations.............................. -- 0.00 (0.10) (0.94) (0.24) ------- ------- ------- ------- ------- Net Earnings (Loss)........................ $ 0.23 $ 0.15 $ (1.80) $ (1.16) $ (0.06) ======= ======= ======= ======= ======= Weighted Average Shares Outstanding -- Basic....................... 5,947 5,162 5,160 5,160 5,160 Weighted Average Shares Outstanding -- Diluted..................... 6,112 5,162 5,160 5,160 5,164 Funds Provided by (Used In) Continuing Operations (Net Earnings (Loss) Plus Depreciation, Amortization, Change in Non-current Deferred Taxes and Writedown of Assets).................................... $ 3,424 $ 2,529 $ (985) $ 2,391 $ 3,121 Cash Dividend Declared Per Common Share...... $ 0.00 $ 0.00 $ 0.00 $ 0.00 $ 0.00
MAY 31, ----------------------------------------------- 1998 1997 1996 1995 1994 ------- ------- ------- ------- ------- (IN THOUSANDS) Balance Sheet Data Total Assets............................... $27,080 $24,068 $28,926 $38,631 $58,855 Long-term Debt............................. 5,966 7,601 11,754 13,627 21,001 Stockholders' Equity....................... 15,581 11,963 11,045 20,323 26,297 Working Capital............................ 13,049 11,509 10,644 14,874 11,044
9 11 ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS "Management's Discussion and Analysis of Financial Condition and Results of Operations" has been restated for all periods discussed to exclude the Company's discontinued Military Housing Projects' operations. For information regarding dispositions made by the Company, refer to Note (2) of Notes to Consolidated Financial Statements. OVERVIEW Team, Inc. provides on-stream leak repair and related industrial services for piping systems and process equipment as well as environmental monitoring services primarily in the United States, the United Kingdom and Trinidad. With the completion of the sale of the Military Housing Projects' operations, the Company now operates as a single business segment. Net earnings from continuing operations for fiscal 1998 was $1,393,000 compared to net earnings of $759,000 for fiscal 1997 and a net loss of $8.7 million for fiscal 1996. Net income (loss) per common share from continuing operations was $0.23, $0.15, and $(1.70) for fiscal 1998, 1997 and 1996, respectively. The following table identifies certain relationships with consolidated revenue as percentages:
FISCAL YEAR -------------------------- 1998 1997 1996 ----- ----- ------ Revenue................................................ 100.0% 100.0% 100.0% Cost and Expenses: Cost of operations................................... (57.0) (56.4) (58.0) ----- ----- ------ Gross profit......................................... 43.0 43.6 42.0 Selling, general and administrative expenses......... (36.5) (38.0) (44.4) Interest expense..................................... (1.0) (2.1) (2.5) Writedown of assets.................................. -- -- (16.2) ----- ----- ------ Earnings (loss) from continuing operations before income taxes......................................... 5.5 3.5 (21.1) Income taxes (benefit)................................. 2.4 1.7 (2.7) ----- ----- ------ Net earnings (loss) from continuing operation.......... 3.1% 1.8% (18.4)% ===== ===== ======
FISCAL 1998 COMPARED TO FISCAL 1997 Revenues in 1998 were $45.5 million compared to $43.7 million in 1997 -- an increase of 4%. The increase was attributable primarily to a significant expansion in the Company's hot tapping services line ("HTS") which reported a 59% gain in revenues to $8.2 million in 1998 from $5.2 million in 1997. The increase in that service line was partially offset by a 17% decline in emissions control services ("ECS") revenues from $7.0 million in 1997 to $5.8 million in 1998. The largest service line, Leak Repair, was relatively flat with 1998 revenues of $26.1 million versus $26.8 million in 1997. The expansion of HTS was directly attributable to the completion of decentralization efforts which began in 1997. During 1998, a full-time service line manager was appointed for HTS and six regional service centers were fully equipped with specialized hot tapping equipment. (Previously, all HTS services were provided from a central location in Pearland, Texas). Additionally, more than twenty senior technicians from around the country were expressly trained in HTS sales and service procedures, which expanded the Company's service capability. The decline in emissions control services revenues continued a trend that has existed since 1994 -- resulting from the continuing pricing pressure in the market and the general relaxation of monitoring and reporting frequencies. However, during the fourth quarter of fiscal 1998, the revenues for emissions control services were comparable to that for the fourth quarter of fiscal 1997 indicating that the trend of declining revenues for this service line may be at an end. 10 12 Operating Expenses as a percent of revenues in 1998 were fairly consistent (57.0%) with the 1997 percentage (56.4%). On an aggregate basis, selling, general and administrative expenses ("SG&A") were flat in 1998 compared to 1997 -- $16.6 million in both years. As a percentage of sales, however, SG&A declined to 36.5% in 1998 versus 38.0% in 1997, which directly resulted in a 1.5% improvement in net earnings as a percentage of revenues. Net earnings were also positively impacted by a $477 thousand reduction in interest expense in 1998 from 1997 (an improvement of 1.1% of revenue), which was a result of an overall reduction in indebtedness (see discussion of Liquidity and Capital Resources.) FISCAL 1997 COMPARED TO FISCAL 1996 The Company's revenues for fiscal 1997 totaled $43.7 million, 8% lower than revenues of $47.4 million reported in the prior fiscal year. This decline in revenues is primarily the result of the sale in May 1996 of the consulting and engineering division as well as lower demand for emissions monitoring services. These declines were partially offset by increases in the Company's leak repair, hot tapping, concrete repair and energy management services. Operating expenses declined by 10% from fiscal 1996 to fiscal 1997 primarily due to lower personnel costs as a result of the sale of the consulting and engineering division. Accordingly, gross margins improved from 42.0% to 43.6%. Excluding the $2.4 million non-recurring, pre-tax charge in the prior year (which related primarily to certain compensation agreements with former employees), selling, general and administrative expenses ("SG&A"), decreased $2.1 million, or 11%. This decrease in SG&A reflected the continuing impact of cost reduction programs implemented during the prior fiscal year as well as the sale of the consulting and engineering division where lower personnel, insurance and general expenses have occurred. The decline in interest expense resulted from reduced debt levels in fiscal year 1997. Net earnings from continuing operations for the 1997 fiscal year were $759,000, or $0.15 per share. This compares to the prior year net loss of $8.7 million, or $1.70 per share, of which $6.9 million was attributable to the writedown of assets and $1.6 million was attributable to non-recurring general and administrative expenses as mentioned above. The Company's effective income tax rate for the year ended May 31, 1997 was 49.9%. The effective tax rate was higher than the statutory federal rate of 34% primarily due to the effect of state income taxes and the non-deductibility of a portion of meal and entertainment expenses. MILITARY HOUSING PROJECTS -- DISCONTINUED OPERATIONS In the first quarter of fiscal 1997, the Company entered into an Agreement of Purchase and Sale with respect to the sale of the Company's 801 Military Housing Projects, recorded the segment as discontinued operations and reported a loss on the sale of $181,000, net of income taxes. In May 1997, the Company consummated the sale of substantially all of the assets and liabilities of its housing projects. Proceeds of this disposition amounted to approximately $3.2 million and were used primarily to reduce the Company's long-term debt. LIQUIDITY AND CAPITAL RESOURCES At May 31, 1998, the Company's working capital totaled $13.0 million, an increase of $1.5 million from working capital of $11.5 million a year earlier. The increase in working capital is primarily attributable to operating activities. In June 1997, the Company sold, through a private placement, 650,000 shares of its common stock and received net proceeds of $1,950,000, substantially all of which was used to repay long term debt. In June 1998, subsequent to the fiscal year end, the Company sold, also through a private placement, 1,200,000 shares of common stock for $3.3 million. In July 1998, the $2.5 million that was outstanding under the Company's revolving credit facility at May 31, 1998 was repaid in full using the proceeds from the sale of stock. After giving effect to the repayment of the credit facility, the Company had approximately $7.2 million available under the Revolving Credit Facility at June 30, 1998. 11 13 In July 1998, the Company executed a commitment letter with a new financial institution to provide $24 million of new credit facilities, including a $12.5 million revolving credit facility, $9.5 million of term loans for acquisition financing and a $2 million facility to refinance certain existing debt. Definitive credit agreements are expected to be executed by August 31, 1998 under terms and conditions that are generally more favorable to the Company than those contained in currently existing agreements. Management expects that capital expenditures, which are intended to provide for normal replacement of assets and new assets to support planned growth, will approximate $2.0 million for fiscal 1999. In the opinion of management, the Company currently has sufficient funds and adequate financial sources available to meet its anticipated liquidity needs. Management believes that cash flow from operations, cash balances and available borrowings will be sufficient for the foreseeable future to finance anticipated working capital requirements, capital expenditures and debt service requirements. YEAR 2000 COMPLIANCE The Company is currently engaged in a comprehensive project to upgrade its information, technology, and manufacturing facilities computer software to programs that will address the Year 2000 problem. Many of the Company's systems include new hardware and packaged software recently purchased from large vendors who have represented that these systems are already Year 2000 compliant. The Company will utilize both internal and external resources to reprogram or replace and test all of its software for Year 2000 compliance, and the Company expects to complete the project in early 1999 leaving adequate time to assess and correct any significant issues that may materialize. The total cost to the Company of these activities has not been and is not anticipated to be material to its financial position or results of operations in any given year. The cost is being funded through operating cash flows. The costs and the date on which the Company plans to complete the Year 2000 modification and testing processes are based on management's best estimates, which were derived utilizing numerous assumptions of future events including the continued availability of certain resources, third parties and other factors. However, there can be no guarantee that these estimates will be achieved and actual results could differ from these plans. 12 14 ITEM 8. CONSOLIDATED FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA INDEPENDENT AUDITORS' REPORT Board of Directors and Stockholders of Team, Inc. Alvin, Texas We have audited the accompanying consolidated balance sheets of Team, Inc. and subsidiaries as of May 31, 1998 and 1997, and the related consolidated statements of operations, stockholders' equity, and cash flows for each of the three years in the period ended May 31, 1998. These financial statements are the responsibility of the Company's management. Our responsibility is to express an opinion on the financial statements based on our audits. We conducted our audits in accordance with generally accepted auditing standards. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion. In our opinion, such consolidated financial statements present fairly, in all material respects, the financial position of Team, Inc. and subsidiaries as of May 31, 1998 and 1997, and the results of their operations and their cash flows for each of the three years in the period ended May 31, 1998 in conformity with generally accepted accounting principles. DELOITTE & TOUCHE LLP Houston, Texas August 3, 1998 13 15 TEAM, INC. AND SUBSIDIARIES CONSOLIDATED BALANCE SHEETS ASSETS
MAY 31, --------------------------- 1998 1997 ------------ ------------ Current Assets: Cash and cash equivalents................................. $ 1,355,000 $ 1,672,000 Receivables............................................... 9,564,000 7,211,000 Materials and supplies.................................... 6,801,000 6,310,000 Prepaid expenses and other current assets................. 862,000 820,000 ------------ ------------ Total Current Assets.............................. 18,582,000 16,013,000 Property, Plant and Equipment: Land and buildings........................................ 6,735,000 6,526,000 Machinery and equipment................................... 11,746,000 11,292,000 ------------ ------------ 18,481,000 17,818,000 Less accumulated depreciation and amortization............ 11,833,000 12,010,000 ------------ ------------ 6,648,000 5,808,000 Other Assets................................................ 1,850,000 2,247,000 ------------ ------------ Total Assets...................................... $ 27,080,000 $ 24,068,000 ============ ============ LIABILITIES AND STOCKHOLDERS' EQUITY Current Liabilities: Current portion of long-term debt......................... $ 286,000 $ 300,000 Accounts payable.......................................... 1,416,000 740,000 Other accrued liabilities................................. 3,483,000 3,298,000 Current income taxes payable.............................. 348,000 166,000 ------------ ------------ Total Current Liabilities......................... 5,533,000 4,504,000 Long-term Debt and Other.................................... 5,966,000 7,601,000 Commitments and Contingencies Stockholders' Equity: Preferred stock, cumulative, par value $100 per share, 500,000 shares authorized, none issued................. -- -- Common stock, par value $.30 per share, 10,000,000 shares authorized and 6,093,442 and 5,259,542 shares issued at May 31, 1998 and 1997.................................. 1,828,000 1,578,000 Additional paid-in capital................................ 27,098,000 25,123,000 Accumulated deficit....................................... (13,248,000) (14,641,000) Less treasury stock at cost, 9,700 shares at May 31, 1998 and 1997............................................... (97,000) (97,000) ------------ ------------ Total Stockholders' Equity........................ 15,581,000 11,963,000 ------------ ------------ Total Liabilities and Stockholders' Equity........ $ 27,080,000 $ 24,068,000 ============ ============
See notes to consolidated financial statements. 14 16 TEAM, INC. AND SUBSIDIARIES CONSOLIDATED STATEMENTS OF OPERATIONS
YEAR ENDED MAY 31, ---------------------------------------- 1998 1997 1996 ----------- ----------- ------------ Revenues............................................. $45,457,000 $43,655,000 $ 47,449,000 Operating expenses................................... 25,933,000 24,634,000 27,523,000 Selling, general and administrative expenses......... 16,610,000 16,579,000 21,084,000 Interest............................................. 450,000 927,000 1,188,000 Writedown of assets.................................. -- -- 7,697,000 ----------- ----------- ------------ Earnings (loss) from continuing operations before income taxes....................................... $ 2,464,000 $ 1,515,000 $(10,043,000) Provision (benefit) for income taxes................. 1,071,000 756,000 (1,299,000) ----------- ----------- ------------ Earnings (loss) from continuing operations, net of income taxes....................................... 1,393,000 759,000 (8,744,000) Earnings (loss) from discontinued operations, net of income taxes....................................... -- 1,000 (534,000) ----------- ----------- ------------ Net earnings (loss).................................. $ 1,393,000 $ 760,000 $ (9,278,000) =========== =========== ============ Net earnings (loss) per common share -- Basic Net earnings (loss) from continuing operations..... $ 0.23 $ 0.15 $ (1.70) Net earnings (loss) from discontinued operations... 0.00 0.00 (0.10) ----------- ----------- ------------ Net earnings (loss)................................ $ 0.23 $ 0.15 $ (1.80) =========== =========== ============ Net earnings (loss) per common share -- Diluted Net earnings (loss) from continuing operations..... $ 0.23 $ 0.15 $ (1.70) Net earnings (loss) from discontinued operations... 0.00 0.00 (0.10) ----------- ----------- ------------ Net earnings (loss)................................ $ 0.23 $ 0.15 $ (1.80) =========== =========== ============ Weighted average number of shares outstanding -- Basic............................... 5,947,000 5,162,000 5,160,000 =========== =========== ============ Weighted average number of shares outstanding -- Diluted............................. 6,112,000 5,162,000 5,160,000 =========== =========== ============
See notes to consolidated financial statements. 15 17 TEAM, INC. AND SUBSIDIARIES CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY
MAY 31, ------------------------------------------ 1998 1997 1996 ------------ ------------ ------------ COMMON STOCK: Balance at beginning of year..................... $ 1,578,000 $ 1,551,000 $ 1,551,000 Shares sold...................................... 195,000 -- -- Exercise of stock options........................ 55,000 -- -- Shares exchanged for services.................... -- 27,000 -- ------------ ------------ ------------ Balance at end of year........................... $ 1,828,000 $ 1,578,000 $ 1,551,000 ============ ============ ============ ADDITIONAL PAID-IN CAPITAL: Balance at beginning of year..................... $ 25,123,000 $ 24,992,000 $ 24,992,000 Shares sold...................................... 1,633,000 -- -- Exercise of stock options........................ 342,000 -- -- Shares exchanged for services.................... -- 131,000 -- ------------ ------------ ------------ Balance at end of year........................... $ 27,098,000 $ 25,123,000 $ 24,992,000 ============ ============ ============ RETAINED EARNINGS (ACCUMULATED DEFICIT): Balance at beginning of year..................... $(14,641,000) $(15,401,000) $ (6,123,000) Net earnings (loss).............................. 1,393,000 760,000 (9,278,000) ------------ ------------ ------------ Balance at end of year........................... $(13,248,000) $(14,641,000) $(15,401,000) ============ ============ ============ TREASURY STOCK: Balance at beginning of year..................... $ (97,000) $ (97,000) $ (97,000) ------------ ------------ ------------ Balance at end of year........................... $ (97,000) $ (97,000) $ (97,000) ============ ============ ============
See notes to consolidated financial statements. 16 18 TEAM, INC. AND SUBSIDIARIES CONSOLIDATED STATEMENTS OF CASH FLOWS
YEAR ENDED MAY 31, --------------------------------------- 1998 1997 1996 ----------- ----------- ----------- Cash Flows From Operating Activities: Net earnings (loss)....................................... $ 1,393,000 $ 760,000 $(9,278,000) (Earnings) loss from discontinued operations.............. -- (1,000) 534,000 ----------- ----------- ----------- Net earnings (loss)from continuing operations...... 1,393,000 759,000 (8,744,000) Adjustments to reconcile net earnings to net cash provided by operating activities: Depreciation and amortization............................. 1,467,000 1,385,000 1,985,000 Provision for doubtful accounts........................... 195,000 -- -- Loss (Gain) on disposal of assets......................... 89,000 (21,000) (23,000) Writedown of assets....................................... -- -- 7,697,000 Noncurrent deferred income taxes.......................... 564,000 385,000 (1,923,000) Change in other long-term obligations..................... -- (354,000) 1,782,000 Change in assets and liabilities: (Increase) decrease: Accounts receivable................................... (2,548,000) 929,000 261,000 Materials and supplies................................ (491,000) (562,000) 493,000 Prepaid expenses and other current assets............. (42,000) 26,000 528,000 Increase (decrease): Accounts payable...................................... 676,000 (106,000) 119,000 Other accrued liabilities............................. 185,000 (90,000) 686,000 Income taxes payable.................................. 182,000 166,000 -- ----------- ----------- ----------- Net cash provided by continuing operating activities........ 1,670,000 2,517,000 2,861,000 ----------- ----------- ----------- Cash Flows From Discontinued Operations: Earnings (loss)........................................... -- 1,000 (534,000) Depreciation.............................................. -- 1,336,000 1,458,000 (Increase) decrease in current assets..................... -- (3,000) 139,000 Increase in current liabilities........................... -- 84,000 54,000 ----------- ----------- ----------- Net cash provided by discontinued operating activities...... -- 1,418,000 1,117,000 ----------- ----------- ----------- Net cash provided by operating activities................... 1,670,000 3,935,000 3,978,000 Cash Flows From Investing Activities: Capital expenditures...................................... (2,045,000) (1,393,000) (788,000) Disposal of property and equipment........................ -- 188,000 115,000 (Increase) decrease in other assets....................... (175,000) 53,000 309,000 Net proceeds from sale of discontinued operations......... -- 3,127,000 -- ----------- ----------- ----------- Net cash provided by (used in) investing activities......... (2,220,000) 1,975,000 (364,000) ----------- ----------- ----------- Cash Flows From Financing Activities: Payments under debt agreements and capital lease obligations -- continuing operations.................... (3,040,000) (5,234,000) (3,759,000) Proceeds from issuance of debt............................ 1,048,000 -- -- Issuance of common stock.................................. 2,225,000 -- -- Principal payments under debt agreements -- discontinued operations.............................................. -- (1,041,000) (957,000) ----------- ----------- ----------- Net cash provided by (used in) financing activities....................................... 233,000 (6,275,000) (4,716,000) ----------- ----------- ----------- Net decrease in cash and cash equivalents................... (317,000) (365,000) (1,102,000) Cash and cash equivalents at beginning of year.............. 1,672,000 2,037,000 3,139,000 ----------- ----------- ----------- Cash and cash equivalents at end of year.................... $ 1,355,000 $ 1,672,000 $ 2,037,000 =========== =========== =========== Supplemental disclosure of cash flow information: Cash paid during the period for interest: Operating............................................... $ 475,000 $ 929,000 $ 1,201,000 Discontinued............................................ -- 3,274,000 3,376,000 ----------- ----------- ----------- $475,000.... $ 4,203,000 $ 4,577,000 =========== =========== =========== Income taxes paid........................................... $ 618,000 $ 84,000 $ 31,000 =========== =========== =========== Income taxes refunded....................................... $ 40,000 $ 4,000 $ 797,000 =========== =========== ===========
See notes to consolidated financial statements. 17 19 SUPPLEMENTAL SCHEDULE OF NON-CASH INVESTING AND FINANCING ACTIVITIES: During 1998 and 1996, equipment and software acquired under capital lease obligations were $343,000 and $495,000, respectively. During 1997, 90,000 shares of the Company's common stock valued at $158,000 were exchanged for services rendered. 18 20 TEAM, INC. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS 1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES Principles of Consolidation The consolidated financial statements of Team, Inc. (the "Company") include the financial statements of the Company and its subsidiaries. All significant intercompany transactions have been eliminated. Use of Estimates in Financial Statement Preparation The preparation of financial statements in conformity with generally accepted accounting principles requires estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenue and expenses during the reporting period. The Company's financial statements include amounts that are based on management's best estimates and judgments. Actual results could differ from those estimates. Materials and Supplies Materials and supplies are stated at the lower of cost (first-in, first-out method) or market. Property, Plant and Equipment Property, plant and equipment are stated at cost less accumulated depreciation and amortization. Depreciation and amortization of assets are computed by the straight-line method over the following estimated useful lives:
CLASSIFICATION LIFE -------------- ---- Buildings............................................... 20-25 years Machinery and equipment................................. 2-10 years
Revenue Recognition The Company recognizes revenue when services are rendered. Income Taxes The Company accounts for taxes on income using the asset and liability method wherein deferred tax assets and liabilities are recognized for the future tax consequences of temporary differences between the carrying amounts and tax bases of assets and liabilities using enacted rates. Concentration of Credit Risk The Company provides services to the chemical, petrochemical, refining, pulp and paper, power and steel industries throughout the United States. Although the Company has a diversified customer base, a substantial portion of its business is dependent upon the chemical and refining industry sectors. Earnings Per Share In 1998 the Company adopted Statement of Financial Accounting Standard ("SFAS") No. 128, "Earnings per Share," which specifies the computation, presentation and disclosure requirements for earnings 19 21 TEAM, INC. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED) per share ("EPS"). The following is a reconciliation of the numerators and denominators of the basic and diluted EPS computations for earnings (loss) from continuing operations, net of income taxes:
YEAR ENDED MAY 31, 1998 YEAR ENDED MAY 31, 1997 --------------------------------------- --------------------------------------- INCOME SHARES PER-SHARE INCOME SHARES PER-SHARE (NUMERATOR) (DENOMINATOR) AMOUNT (NUMERATOR) (DENOMINATOR) AMOUNT ----------- ------------- --------- ----------- ------------- --------- Basic EPS: Earnings (loss) from continuing operations, net of income taxes........................... $1,393,000 5,947,000 $0.23 $759,000 5,162,000 $0.15 Effect of Dilutive Securities: Options......................... -- 165,000 -- -- ---------- --------- -------- --------- Diluted EPS: Earnings (loss) from continuing operations, net of income taxes........................... $1,393,000 6,112,000 $0.23 $759,000 5,162,000 $0.15 ========== ========= ===== ======== ========= =====
YEAR ENDED MAY 31, 1996 --------------------------------------- INCOME SHARES PER-SHARE (NUMERATOR) (DENOMINATOR) AMOUNT ----------- ------------- --------- Basic EPS: Earnings (loss) from continuing operations, net of income taxes................................................... $(8,744,000) 5,160,000 $(1.70) Effect of Dilutive Securities: Options................................................. -- -- ----------- --------- Diluted EPS: Earnings (loss) from continuing operations, net of income taxes................................................... $(8,744,000) 5,160,000 $(1.70) =========== ========= ======
Options to purchase 314,000 and 516,000 shares of common stock were outstanding during the years ended May 31, 1998 and 1997, respectively, but were not included in the computation of diluted EPS because the options' exercise prices were greater than the average market price of common shares during the period. Options to purchase 511,700 shares of common stock were outstanding during the year ended May 31, 1996, but were not included in the computation of diluted EPS because they were anti-dilutive due to the loss from continuing operations, net of income taxes. Statement of Cash Flows For purposes of the statement of cash flows, the Company considers all highly liquid investments purchased with a maturity of three months or less to be cash equivalents. Dividends No dividends were paid during the current or prior two fiscal years. Pursuant to the Company's Credit Agreement, the Company may not pay quarterly dividends without the consent of its senior lender. Future dividend payments will depend upon the Company's financial condition and other relevant matters. Fair Value of Financial Instruments The fair value of cash and cash equivalents, receivables and accounts payable approximate their carrying amounts because of the short maturity of those instruments. The fair value of the Company's long-term debt is estimated based on the current rates available to the Company for instruments with similar terms and maturities. New Accounting Standards In June 1997, the Financial Accounting Standards Board ("FASB") issued Statement of Financial Accounting Standards ("SFAS") No. 130, "Reporting Comprehensive Income," which establishes standards 20 22 TEAM, INC. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED) for reporting and display of comprehensive income and its components. In June 1997, the FASB issued SFAS No. 131, "Disclosures About Segments of an Enterprise and Related Information," which establishes standards for the way that public business enterprises report information about operating segments in interim and annual financial statements. In February 1998, the FASB issued SFAS No. 132, "Employer's Disclosures about Pensions and Other Postretirement Benefits," which revises the required disclosures about pensions and other postretirement benefits. In June 1998, the FASB issued SFAS No. 133, "Accounting for Derivative Instruments and Hedging Activities," which establishes accounting and reporting standards for derivative instruments, including certain derivative instruments embedded in other contracts, and for hedging activities. SFAS No. 130, SFAS No. 131 and SFAS No. 132 are effective for fiscal years beginning after December 31, 1997. SFAS No. 133 is effective for all fiscal quarters of fiscal years beginning after June 15, 1999. These statements are not expected to have a material effect on the Company's financial position, results of operations or cash flows. The Company is currently analyzing these statements to determine what, if any, additional disclosures will be required thereunder. 2. DIVESTITURES AND DISCONTINUED OPERATIONS In May 1997, the Company sold substantially all of the assets of its Military Housing Projects segment. Proceeds of this divestiture amounted to approximately $3.2 million and were used primarily to reduce the Company's long-term debt. A loss on the sale of this segment of $181,000, net of income taxes, was recorded in the year ended May 31, 1997. Effective May 31, 1996, the Company sold substantially all of the assets of its Environmental Engineering and Consulting Division, which had a carrying value of approximately $111,000 with no gain or loss being recognized. 3. RECEIVABLES Receivables consist of:
MAY 31, ----------------------- 1998 1997 ---------- ---------- Trade accounts receivable................................... $9,610,000 $7,079,000 Other receivables........................................... 201,000 193,000 Allowance for doubtful accounts............................. (247,000) (61,000) ---------- ---------- Total............................................. $9,564,000 $7,211,000 ========== ==========
4. OTHER ACCRUED LIABILITIES Other accrued liabilities consist of:
MAY 31, ----------------------- 1998 1997 ---------- ---------- Payroll and other compensation expenses..................... $1,683,000 $1,452,000 Insurance accruals.......................................... 1,076,000 992,000 Other....................................................... 724,000 854,000 ---------- ---------- Total............................................. $3,483,000 $3,298,000 ========== ==========
21 23 TEAM, INC. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED) 5. INCOME TAXES The provisions for federal and state income taxes attributable to pre-tax earnings from continuing operations are as follows:
YEAR ENDED MAY 31, ----------------------------------- 1998 1997 1996 ---------- -------- ----------- Federal income taxes: Current........................................ $ 609,000 $ 63,000 $ 235,000 Deferred....................................... 270,000 586,000 (1,525,000) State income taxes: Current........................................ 171,000 162,000 -- Deferred....................................... 21,000 (55,000) (9,000) ---------- -------- ----------- Total.................................. $1,071,000 $756,000 $(1,299,000) ========== ======== ===========
A reconciliation between income taxes related to earnings from continuing operations before income taxes and income taxes computed by applying the statutory federal income tax rate to such earnings follows:
YEAR ENDED MAY 31, -------------------------------------- 1998 1997 1996 ---------- ---------- ------------ Earnings (loss) from continuing operations before federal income taxes.................. $2,464,000 $1,515,000 $(10,043,000) ========== ========== ============ Computed income taxes at statutory rate........ $ 838,000 $ 515,000 $ (3,414,000) Goodwill amortization.......................... -- -- 1,843,000 State income taxes, net of federal tax benefit...................................... 127,000 71,000 (6,000) Other.......................................... 106,000 170,000 278,000 ---------- ---------- ------------ Total................................ $1,071,000 $ 756,000 $ (1,299,000) ========== ========== ============
A summary of the significant components of the Company's deferred tax assets and liabilities follows:
YEAR ENDED MAY 31, ----------------------- 1998 1997 ---------- ---------- Receivables................................................. $ (42,000) $ (52,000) Other....................................................... (25,000) (148,000) ---------- ---------- Gross deferred liabilities.................................. (67,000) (200,000) ---------- ---------- Property, plant and equipment............................... 192,000 145,000 Non-deductible accrued expenses............................. 1,254,000 1,163,000 Inventory................................................... 194,000 182,000 Net operating loss carry over............................... -- 456,000 AMT and foreign tax credit.................................. -- 138,000 Other....................................................... 20,000 -- ---------- ---------- Gross deferred assets....................................... 1,660,000 2,084,000 ---------- ---------- Net deferred taxes.......................................... $1,593,000 $1,884,000 ========== ==========
No valuation account is required for the deferred tax assets as the Company is projecting profitable fiscal years in the future. Most of the assets represent temporary differences on certain accruals that will reverse over a period of less than 10 years. 22 24 TEAM, INC. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED) Net deferred tax assets are classified in the consolidated balance sheets as follows:
YEAR ENDED MAY 31, ------------------------- 1998 1997 ---------- ---------- Prepaid expenses and other current assets.................. $ 531,000 $ 258,000 Other assets............................................... 1,062,000 1,626,000 ---------- ---------- Net deferred tax assets.................................... $1,593,000 $1,884,000 ========== ==========
6. LONG-TERM OBLIGATIONS Long-term obligations consist of:
YEAR ENDED MAY 31, ------------------------- 1998 1997 ---------- ---------- Revolving Credit agreement................................. 2,500,000 4,500,000 Term note.................................................. 1,693,000 1,274,000 Capital lease obligations.................................. 340,000 363,000 Compensation agreements.................................... 1,418,000 1,567,000 Other...................................................... 301,000 197,000 ---------- ---------- 6,252,000 7,901,000 Less current portion....................................... 286,000 300,000 ---------- ---------- Total............................................ $5,966,000 $7,601,000 ========== ==========
LONG-TERM DEBT: Effective December 29, 1997, the Company extended and amended its bank credit agreement. The agreement provides for a $10,000,000 revolving line of credit. The revolving line of credit, which is due December 31, 1999, bears interest at a rate not to exceed the bank's prime rate of interest (8.50 percent at May 31, 1998) plus 0.5 percent. A commitment fee of 0.375 percent is payable on the daily average unused amount of the revolving line of credit, less the aggregate amount of all outstanding letters of credit. At May 31, 1998, the Company had no letters of credit outstanding against the revolving line of credit. Amounts outstanding under the revolving line of credit were $2,500,000 and $4,500,000 at May 31, 1998 and 1997, respectively. Under the terms of the agreement, $5,311,000 was available for borrowing at May 31, 1998. Loans under the Company's bank credit agreement are secured by substantially all of the assets of the Company. The terms of the agreement, as amended, require the maintenance of certain financial ratios and limit investments, advances, liens, leases and indebtedness, among other things. At May 31, 1998, the Company was in compliance with all credit agreement covenants. In addition to the loan under the credit agreement with its primary lender, the Company has a term note with a bank that is due October 15, 2006, bears interest at prime plus 0.5 percent and provides for one hundred and eight installments, the first one hundred and seven of which will be even monthly installments of principal and interest, and the final installment being all unpaid principal and accrued interest. The Company also has a construction note with the same bank that is due July 15, 2010, bears interest at prime plus 0.5 percent and provides for one hundred and fifty installments, the first six of which will be interest only, the next one hundred and forty-three will be even monthly installments of principal and interest, and the final installment being all unpaid principal and accrued interest. The loans are secured by land and buildings. Based on the borrowing rates currently available to the Company for bank loans with terms and maturities similar to the Company's long-term debt, the fair value of such debt is estimated to approximate its carrying value at May 31, 1998. 23 25 TEAM, INC. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED) COMPENSATION AGREEMENTS: During the year ended May 31, 1996, the Company accrued for compensation to be paid to former employees of the Company beyond the period in which services are expected to be rendered. At May 31, 1998, these long-term obligations totaled $1,418,000. Maturities of long-term obligations are as follows:
YEAR ENDING MAY 31, ------------------- 1999................................................... $ 286,000 2000................................................... 2,972,000 2001................................................... 511,000 2002................................................... 533,000 2003................................................... 464,000 Thereafter............................................. 1,486,000 ---------- Total........................................ $6,252,000 ==========
7. STOCK OPTIONS AND EMPLOYEE BENEFIT PLANS AND SHAREHOLDER RIGHTS PLAN The Company has elected to follow Accounting Principles Board Opinion No. 25, "Accounting for Stock Issued to Employees" ("APB 25") and related interpretations in accounting for its employee stock options. Under APB 25, because the exercise price of the Company's employee stock options equals the market price of the underlying stock on the date of grant, no compensation expense is recognized. Pursuant to option plans, the Company has granted options to purchase common stock to officers, directors and employees at prices equal to or greater than the market value of the common stock on the date of grant. The exercise price, terms and other conditions applicable to each option granted under the Company's plans are generally determined by the Compensation Committee at the time of grant of each option and may vary. During the year ended May 31, 1996, all options were re-priced to $2.125, the market value of the common stock on the date the shares were re-priced. Transactions under all plans are summarized below:
YEAR ENDED MAY 31, ------------------------------- 1998 1997 1996 --------- -------- -------- Shares under option, beginning of year.............. 516,000 511,700 512,050 Changes during the year: Granted........................................... 379,000 30,000 70,000 Exercised......................................... (166,900) -- -- Canceled.......................................... (35,500) (25,700) (70,350) --------- -------- -------- Shares under option, end of year.................... 692,600 516,000 511,700 ========= ======== ======== Average option price per share...................... $ 2.76 $ 2.12 $ 2.125 ========= ======== ======== Exercisable at end of year.......................... 481,500 503,500 459,000 ========= ======== ======== Available for future grant.......................... 259,000 377,000 336,300 ========= ======== ========
Pro forma information regarding net income and earnings per share is required by SFAS No. 123, which also requires that the information be determined as if the Company has accounted for its employee stock options granted subsequent to December 31, 1994 under the fair value method of that Statement. The fair value for the options granted after this date was estimated at the date of grant using a Black-Scholes option pricing model with the following weighted-average assumptions: risk-free interest rate of 5.9%, 6.4% and 5.7%; volatility factor of the expected market price of the Company's common stock of 67.4%, 65.8% and 52.4%; and 24 26 TEAM, INC. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED) a weighted average expected life of the option of three, three and eight years for 1998, 1997 and 1996, respectively. The Black-Scholes option valuation model was developed for use in estimating the fair value of traded options which have no vesting restrictions and are fully transferable. In addition, option valuation models require the input of highly subjective assumptions including the expected stock price volatility. Because the Company's employee stock options have characteristics significantly different from those of traded options, and because changes in the subjective input assumptions can materially affect the fair value estimate, in management's opinion, the existing models do not necessarily provide a reliable single measure of the fair value of its employee stock options. For purposes of pro forma disclosures, the estimated fair value of the options is amortized over the options' vesting period. The Company's pro forma information follows:
YEAR ENDED MAY 31, ----------------------------------- 1998 1997 1996 ---------- -------- ----------- Pro forma net earnings (loss) from continuing operations..................................... $1,255,000 $747,000 $(8,797,000) Net earnings (loss) from discontinued operations..................................... -- 1,000 (534,000) ---------- -------- ----------- Pro forma net earnings (loss).................... $1,255,000 $748,000 $(9,331,000) ========== ======== =========== Net earnings (loss) per common share -- Diluted: Pro forma earnings (loss) per share from continuing operations....................... $ 0.21 $ 0.14 $ (1.71) Net earnings (loss) per share from discontinued operations.................................. -- 0.00 (0.10) ---------- -------- ----------- Pro forma earning (loss) per share............. $ 0.21 $ 0.14 $ (1.81) ========== ======== ===========
Under the Team, Inc. Salary Deferral Plan, contributions are made by qualified employees at their election and matching Company contributions are made at specified rates. Company contributions in fiscal 1998, 1997 and 1996 were $210,000, $104,000 and $167,000, respectively. Employer contributions for the Team, Inc. Employee Stock Ownership Plan are determined at the discretion of the Company's Board of Directors. The Plan does not allow for employee contributions. No contributions were made in 1998, 1997 or 1996. On October 24, 1990, the Board of Directors of the Company adopted a Shareholder Rights Plan ("Rights Plan"). Pursuant to the Rights Plan, the Board of Directors declared a dividend distribution of one right ("Right") for each outstanding share of the Company's common stock ("Common Stock"), and on each share subsequently issued until separate Rights are distributed, or the Rights expire or are redeemed. Subsequent to May 31, 1998, the Company redeemed the Rights at a total cost of approximately $60,000. 8. COMMITMENTS AND CONTINGENCIES Lease Commitments The Company's capital leases relate to certain computer equipment and software. Property, plant and equipment include assets under capital lease in the amount of $641,000 and $464,000 at May 31, 1998 and 1997, before accumulated amortization of $253,000 and $149,000, respectively. Other assets include software under capital lease in the amount of $281,000 at May 31, 1998 and 1997, before accumulated amortization of $208,000 and $143,000, respectively. The Company also has operating leases which relate to facilities and transportation and other equipment which are leased over terms ranging from one to five years with typical 25 27 TEAM, INC. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED) renewal options and escalation clauses. Rental payments on operating leases charged against earnings were $1,790,000, $1,950,000 and $1,898,000 in 1998, 1997 and 1996, respectively. Minimum rental commitments for future periods are as follows:
OPERATING YEAR ENDING MAY 31, CAPITAL LEASES LEASES TOTAL ------------------- -------------- ---------- ---------- 1999............................................ $128,000 $1,530,000 $1,658,000 2000............................................ 114,000 917,000 1,031,000 2001............................................ 82,000 394,000 476,000 2002............................................ 38,000 157,000 195,000 2003............................................ 32,000 105,000 137,000 -------- ---------- ---------- Total minimum lease payments.................... 394,000 $3,103,000 $3,497,000 ========== ========== Less: amount representing interest.............. 54,000 -------- Present value of net minimum lease payments..... $340,000 ========
Legal Proceedings Allstate Vacuum & Tanks, Inc. ("Allstate"), a former subsidiary of the Company, was identified in the mid-1980s as a potentially responsible party ("PRP") in connection with the Sheridan Disposal Superfund Site (the "Sheridan Site") near Hempstead, Texas. Allstate was ultimately classified as a PRP that had generated or delivered only de minimis amounts of waste to the Sheridan Site along with other small PRPs and was offered the opportunity to enter into a de minimis party settlement (the "Settlement Agreement") among various settling PRPs ("Settling PRPs"), including various small PRPs and the large waste volume PRPs (the "Major PRPs"). In September, 1989, the Company, on behalf of Allstate, entered into the Settlement Agreement and paid a total settlement amount of $101,700 to settle its liability and acquire indemnification from the Major PRPs against any remediation costs in excess of the settlement payment made by the Company. This Settlement Agreement remains in effect. The Settling PRPs also entered into a consent decree ("Consent Decree") with the EPA to resolve their liability in this matter in accordance with the Settlement Agreement. Such Consent Decree was filed in the United States District Court for the Southern District of Texas in December 1991. A Motion for Entry of the Consent Decree was filed by the EPA in March 1992, and various Amended Motions for Entry of Consent Decree were subsequently filed. On July 21, 1998, the Company confirmed that the court finally approved the Consent Decree in October 1997, and that the Consent Decree is in effect. Based on all of the foregoing, the Company does not anticipate incurring any additional liability for the Sheridan Site. The Company and certain subsidiaries are involved in various lawsuits and subject to various claims and proceedings encountered in the normal conduct of business. In the opinion of management, any uninsured losses that might arise from these lawsuits and proceedings will not have a material adverse affect on the Company's consolidated financial statements. 9. COMMON STOCK On June 30, 1997, the Company issued 650,000 shares of Common Stock to Armstrong International, Inc. in exchange for cash in the amount of $3.00 per share for a total of $1,950,000. On June 19, 1998, subsequent to year end, the Company completed the sale of 1,200,000 shares of Team's Common Stock for $2.75 per share to Houston Post Oak Partners, Ltd. ("Houston Partners") for a total consideration of 26 28 TEAM, INC. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED) $3,300,000. Houston Partners now owns approximately 17% of the Company's outstanding common shares on a fully diluted basis. Substantially all of the net proceeds of each of the private placement transactions were used to repay long term debt or to repay the Company's revolving credit facility. 10. SUBSEQUENT EVENT On July 3, 1998, the Company entered into a definitive purchase agreement to acquire the stock of Climax Portable Machine Tools, Inc. ("Climax") of Newberg, Oregon. The aggregate consideration is expected to be approximately $7.2 million in cash and stock. Climax is a designer-manufacturer of portable, metal cutting machine tools used for on-site industrial maintenance. Climax had total revenues of $11.3 million for the year ended December 31, 1997. The transaction is expected to be finalized by the end of August 1998. In July 1998, the Company executed a commitment letter with a new financial institution to provide $24 million of new credit facilities, including a $12.5 million revolving credit facility, $9.5 million of term loans for acquisition financing, and a $2 million facility to refinance certain existing debt. Definitive credit agreements are expected to be executed by August 31, 1998 under terms and conditions that are generally more favorable to the Company than those contained in currently existing agreements. 11. QUARTERLY RESULTS OF OPERATIONS (UNAUDITED) The Company's consolidated results of operations by quarter for the fiscal years ended May 31, 1998 and 1997 were as follows: (in thousands except per share amounts)
FISCAL 1998 ------------------------------------- FIRST SECOND THIRD FOURTH QUARTER QUARTER QUARTER QUARTER ------- ------- ------- ------- Revenues............................................... $10,229 $11,717 $11,483 $12,028 ======= ======= ======= ======= Gross Profit........................................... $ 4,178 $ 5,130 $ 4,739 $ 5,477 ======= ======= ======= ======= Net Earnings........................................... $ 107 $ 528 $ 315 $ 443 ======= ======= ======= ======= Net Earnings per Share -- Basic........................ $ 0.02 $ 0.09 $ 0.05 $ 0.07 ======= ======= ======= ======= Net Earnings per Share -- Diluted...................... $ 0.02 $ 0.09 $ 0.05 $ 0.07 ======= ======= ======= =======
27 29 TEAM, INC. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
FISCAL 1997 ------------------------------------- FIRST SECOND THIRD FOURTH QUARTER QUARTER QUARTER QUARTER ------- ------- ------- ------- Revenues............................................... $10,155 $11,271 $11,305 $10,924 ======= ======= ======= ======= Gross Profit........................................... $ 4,439 $ 5,010 $ 4,868 $ 4,704 ======= ======= ======= ======= Earnings from Continuing Operations, Net of Income Taxes................................................ $ 10 $ 310 $ 210 $ 229 Earnings from Discontinued Operations, Net of Income Taxes................................................ 1 -- -- -- ------- ------- ------- ------- Net Earnings........................................... $ 11 $ 310 $ 210 $ 229 ======= ======= ======= ======= Net Earnings per Share -- Basic Earnings from Continuing Operations.................. $ 0.00 $ 0.06 $ 0.04 $ 0.04 Earnings from Discontinued Operations................ 0.00 0.00 0.00 0.00 ------- ------- ------- ------- Net Earnings........................................... $ 0.00 $ 0.06 $ 0.04 $ 0.04 ======= ======= ======= ======= Earnings per Share -- Diluted Earnings from Continuing Operations.................. $ 0.00 $ 0.06 $ 0.04 $ 0.04 Earnings from Discontinued Operations................ 0.00 0.00 0.00 0.00 ------- ------- ------- ------- Net Earnings........................................... $ 0.00 $ 0.06 $ 0.04 $ 0.04 ======= ======= ======= =======
12. WRITE-DOWN ASSETS For fiscal year 1996, the loss from continuing operations included pre-tax charges of $7,697,000 representing writedowns in the carrying value of certain of the Company's assets. This charge primarily reflected the $5,347,000 write-off of goodwill as it pertained to the Environmental Consulting and Engineering Division and a $400,000 write-off of obsolete inventory. The charge also included the reserve of a $1,700,000 note receivable obtained in the sale of a former business segment. In addition, the Company recorded $2,423,000 of additional general and administrative expenses which relate primarily to certain compensation arrangements with former employees and reversed $57,000 of accrued but unpaid interest receivable on the above mentioned note receivable. 28 30 ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL DISCLOSURE There have been no disagreements concerning accounting and financial disclosures with the Company's independent accountants within the past two years. PART III. THE INFORMATION CONTAINED IN ITEMS 10, 11, 12 AND 13 OF PART III HAS BEEN OMITTED FROM THIS REPORT ON FORM 10-K SINCE THE COMPANY WILL FILE, NOT LATER THAN 120 DAYS FOLLOWING THE CLOSE OF ITS FISCAL YEAR ENDED MAY 31, 1998, ITS DEFINITIVE PROXY STATEMENT. THE INFORMATION REQUIRED BY PART III WILL BE INCLUDED IN THAT PROXY STATEMENT AND SUCH INFORMATION IS HEREBY INCORPORATED BY REFERENCE, WITH THE EXCEPTION OF THE INFORMATION UNDER THE HEADINGS "COMPENSATION COMMITTEE REPORT" AND "COMPARISON OF TOTAL SHAREHOLDERS' RETURN." PART IV. ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K (a) 1. FINANCIAL STATEMENTS The following consolidated financial statements of Team, Inc. and its subsidiaries are included in Part II, Item 8.
PAGE ---- Independent Auditors' Report................................ 13 Consolidated Balance Sheets -- May 31, 1998 and 1997........ 14 Consolidated Statements of Operations -- Years ended May 31, 1998, 1997 and 1996....................................... 15 Consolidated Statements of Stockholders' Equity -- Years ended May 31, 1998, 1997 and 1996......................... 16 Consolidated Statements of Cash Flows -- Years ended May 31, 1998, 1997 and 1996....................................... 17 Notes to Consolidated Financial Statements.................. 19
2. FINANCIAL STATEMENT SCHEDULES All other schedules are omitted because they are not applicable or because the required information is included in the Consolidated Financial Statements or Notes thereto. 3. EXHIBITS
EXHIBIT SEQUENTIAL NO. EXHIBIT PAGE NO. ------- ------- ---------- 3(a)* -- Second Restated Articles of Incorporation of the Company (filed as Exhibit 4.1 to the Company's Registration Statement on Form S-2, File No. 33-31663) 3(b)* -- Bylaws of the Company (filed as Exhibit 4.2 to the Company's Registration Statement on Form S-2, File No. 33-31663) 4(a)* -- Certificate representing shares of common stock of Company (filed as Exhibit 4(1) to the Company's Registration Statement on Form S-1, File No. 2-68928) 4(b)* -- Statement of Relative Rights and Preferences of Series A Participatory Preferred Stock of Team, Inc. (filed as Exhibit 2.2 to the Company's Form 8-A with the Securities and Exchange Commission on October 26, 1990)
29 31
EXHIBIT SEQUENTIAL NO. EXHIBIT PAGE NO. ------- ------- ---------- 10(a)* -- Amended and Restated Credit Agreement among Texas Commerce Bank, N.A. and Team, Inc. and its subsidiaries dated August 24, 1995 (filed as Exhibit 10(p) to the Company's Annual Report on Form 10-K for the fiscal year ended May 31, 1995) 10(b)* -- First Amendment and Supplement to Amended and Restated Credit Agreement and Note Modification Agreement by and between Team, Inc. and Texas Commerce Bank Association effective as of September 13, 1995 (filed as Exhibit 10.1 to the Company's Quarterly Report on Form 10-Q for the quarter ended February 29, 1996) 10(c)* -- Second Amendment and Supplement to Amended and Restated Credit Agreement, and Revolving Credit Note Modification and Term Note Modification Agreement effective as of May 31, 1996 by and between Texas Commerce Bank N.A. and Team, Inc. (filed as Exhibit 10(q) to the Company's Annual Report on Form 10-K for the fiscal year ended May 31, 1996) 10(d)* -- 1987 Amended and Restated Stock Option Plan dated December 16, 1991 (filed as Exhibit 10.1 to the Company's Quarterly Report on Form 10-Q for the quarter ended February 28, 1994) 10(e)* -- Fourth Amendment to Team, Inc. Amended and Restated 1987 Restricted Stock Option Plan (filed as Exhibit 10.1 to the Company's Quarterly Report on Form 10-Q for the quarter ended November 30, 1995) 10(f)*# -- Employment Agreements and Consulting and Salary Continuation Agreements between the Company and certain of its executive officers (filed as Exhibit 10(f) to the Company's Annual Report on Form 10-K for the fiscal year ended May 31, 1988, as Exhibit 10 to the Company's Annual Report on Form 10-K for the fiscal year ended May 31, 1989, as amended by Form 8 dated October 19, 1989, and Exhibit 10.2 to the Company's Quarterly Report on Form 10-Q for the quarter ended November 30, 1990) 10(g)* -- Ninth Amendment and Restatement of the Team, Inc. Salary Deferral Plan (filed as Exhibit 10.3 to the Company's Quarterly Report on Form 10-Q for the quarter ended February 29, 1996) 10(h)*# -- Sixth Amendment and Restatement of the Team, Inc. Employee Stock Ownership Plan (filed as Exhibit 10.2 to the Company's Quarterly Report on Form 10-Q for the quarter ended February 29, 1996) 10(i)*# -- Team, Inc. Restated Non-Employee Directors' Stock Option Plan as amended through March 28, 1996 (filed as Exhibit 10(z) to the Company's Annual Report on Form 10-K for the fiscal year ended May 31, 1996) 10(j)*# -- Amendment dated January 9, 1997, to the Team, Inc. Non-Employee Directors Stock Option Plan (filed as Exhibit 10(m) to the Company's Annual Report on Form 10-K for the fiscal year ended May 31, 1997) 10(k)# -- Amendment dated January 29, 1998, to the Team, Inc. Non-Employee Directors Stock Option Plan
30 32
EXHIBIT SEQUENTIAL NO. EXHIBIT PAGE NO. ------- ------- ---------- 10(l)* -- Team, Inc. 1992 Stock Option Plan for Key Employees of Acquired Business effective January 1992 (filed as Exhibit 10(r) to the Company's Annual Report on Form 10-K for the fiscal year ended May 31, 1992) 10(m)*# -- Team, Inc. Officers' Restricted Stock Option Plan dated December 14, 1995. 10(n)*# -- First Amendment to the Consulting and Salary Continuation Agreement by and between Team, Inc. and George W. Harrison dated December 24, 1990 (filed as Exhibit 10.1 to the Company's Quarterly Report on Form 10-Q for the Quarter ended November 30, 1996) 10(o)* -- Letter Agreement dated April 10, 1997, by and between Texas Commerce Bank National Association and Team, Inc. (filed as Exhibit 10.1 to the Company's Quarterly Report on Form 10-Q for the Quarter ended February 28, 1997) 10(p)* -- Agreement of Purchase and Sale, dated September 13, 1996, among Registrant and Ft. Bragg 801, Inc. and Pensacola 801, Inc. and Portales 801, Inc., collectively as Seller, and U.S. National Housing, L.L.C. as Purchaser (filed as Exhibit 2.1 to the Company's Form 8-K dated May 23, 1997) 10(q)* -- Assignment and Assumption Agreement, dated May 8, 1997, between U.S. National Housing, LLC and U.S. National Housing Limited Partnership (filed as Exhibit 2.2 to the Company's Form 8-K dated May 23, 1997) 10(r)* -- First Amendment to Purchase and Sale Agreement, dated as of May 8, 1997, among Registrant and Ft. Bragg 801, Inc. and Pensacola 801, Inc. and Portales 801, Inc. and First American Capital Corporation, collectively as Seller, and U.S. National Housing Limited Partnership, as Purchaser (filed as Exhibit 2.3 to the Company's Form 8-K dated May 23, 1997) 10(s)* -- Stock Purchase Agreement by and between Team, Inc. and Armstrong International, Inc. dated June 30, 1997 (filed as Exhibit 10(u) to the Company's Annual Report on Form 10-K for the fiscal year ended May 31, 1997) 10(t)* -- Registration Rights Agreement by and between Team, Inc. and Armstrong International, Inc. dated June 30, 1997 (filed as Exhibit 10(v) to the Company's Annual Report on Form 10-K for the fiscal year ended May 31, 1997) 10(u)* -- Standstill and Voting Agreement by and between Team, Inc. and Armstrong International, Inc. dated June 30, 1997 (filed as Exhibit 10(w) to the Company's Annual Report on Form 10-K for the year ended May 31, 1997) 10(v)*# -- Employment and Consulting Agreement by and between William A. Ryan and Team, Inc. dated July 29, 1997 (filed as Exhibit 10(x) to the Company's Annual Report on Form 10-K for the fiscal year ended May 31, 1997)
31 33
EXHIBIT SEQUENTIAL NO. EXHIBIT PAGE NO. ------- ------- ---------- 10(w)* -- Construction Loan Agreement dated February 20, 1998, by and between Sterling Bank and Team, Inc. (filed as Exhibit 10.1 to the Company's Quarterly Report on Form 10-Q for the quarter ended February 28, 1998) 10(x)* -- Modification and Extension Agreement dated February 20, 1998, by and between Sterling Bank and Team, Inc. (filed as Exhibit 10.2 to the Company's Quarterly Report on Form 10-Q for the quarter ended February 28, 1998) 10(y)* -- 1998 Incentive Stock Option Plan dated January 29, 1998 (filed as Exhibit 10.3 to the Company's Quarterly Report on Form 10-Q for the quarter ended February 28, 1998) 10(z) -- Stock Purchase Agreement by and between Team, Inc. and Houston Post Oak Partners, Ltd. dated June 9, 1998. 10(aa) -- Stock Purchase Agreement by and between Team, Inc. and R. LeRoy and Paula Benham, The Climax Portable Machine Tools, Inc. Employee Stock Ownership Plan Trust, Phillip R. Edin, Trustee of the Phillip Edin Living Trust u/t/a dated November 25, 1996, and Terry W. Weigel dated July 3, 1998. 10(ab)# -- First Amendment to the Employment and Consulting Agreement by and between William A. Ryan and Team, Inc. dated August 12, 1998. 21 -- Subsidiaries of the Company 27 -- Financial Data Schedule
- --------------- * Incorporated herein by reference to the respective filing identified above. # Management contracts and/or compensation plans required to be filed as an exhibit to this Form 10-K pursuant to Item 14(c) of Form 10-K. (b) REPORTS ON FORM 8-K. The Company filed one report on Form 8-K since the beginning of the fourth quarter of fiscal 1998. (i) On June 8, 1998, the Company filed a Form 8-K reporting on the letter agreement with Houston Post Oak Partners, Ltd. providing that Houston Post Oak Partners, Ltd. agreed to purchase 1,200,000 shares of the Company's common stock for $2.75 per share, for an aggregate consideration of $3,300,000. In addition in accordance with the Company's Bylaws, the Board of Directors appointed Mr. Louis A. Waters, the sole general partner for Houston Post Oak Partners, Ltd., as a Director of the Company. (ii) The Company reported the following financial information on Form 8-K: Not applicable. 32 34 SIGNATURES Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized August . TEAM, INC. By: /s/ WILLIAM A. RYAN ---------------------------------- William A. Ryan Chief Executive Officer (Principal Executive Officer) Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the Registrant and in the capacity and on the dates indicated. /s/ WILLIAM A. RYAN Chief Executive Officer and August 17, 1998 - ----------------------------------------------------- Director (William A. Ryan) /s/ GEORGE W. HARRISON Director August 17, 1998 - ----------------------------------------------------- (George W. Harrison) /s/ JACK M. JOHNSON, JR. Director August 17, 1998 - ----------------------------------------------------- (Jack M. Johnson, Jr.) /s/ E. THEODORE LABORDE Director August 17, 1998 - ----------------------------------------------------- (E. Theodore Laborde) /s/ LOUIS A. WATERS Director August 17, 1998 - ----------------------------------------------------- (Louis A. Waters) /s/ SIDNEY B. WILLIAMS Director August 17, 1998 - ----------------------------------------------------- (Sidney B. Williams) /s/ TED W. OWEN Vice President Chief Financial August 17, 1998 - ----------------------------------------------------- Officer (Principal Financial (Ted W. Owen) Officer and Principal Accounting Officer)
33 EX-10.K 2 AMENDMENT, DATED 1/29/98 TO NON-EMPLOYEE DIRECTORS 1 EXHIBIT 10(k) AMENDMENT OF JANUARY 29, 1998 TO TEAM, INC. RESTATED NON-EMPLOYEE DIRECTORS' STOCK OPTION PLAN (As amended through March 28, 1996) WHEREAS, the Board of Directors of Team, Inc. during a meeting held on January 29, 1998, adopted a resolution amending the Team, Inc. Restated Non-Employee Directors' Stock Option Plan ("Plan") to increase the maximum number of shares which may be offered pursuant to the Plan from 265,000 to 310,000. NOW, THEREFORE, by order of the Board of Directors, Paragraph 4 of the Plan has been amended in its entirety to read as follows: "4. Common Stock Subject to Options. The aggregate number of shares of the Company's Common Stock which may be issued upon exercise of Options granted under the Plan shall not exceed 310,000, subject to adjustment under the provisions of Paragraph 7. The shares of Common Stock to be issued upon the exercise of Options may be authorized but unissued shares, shares issued and reacquired by the Company or shares bought on the market for the purposes of the Plan. In the event any Option shall, for any reason, terminate or expire or be surrendered without having been exercised in full, the shares subject to such Option but not purchased thereunder shall again be available for Options to be granted under the Plan." EFFECTIVE as of January 29, 1998. EX-10.Z 3 STOCK PURCHASE AGREEMENT DATED 6/19/98 1 EXHIBIT 10(Z) DEFINITIVE STOCK PURCHASE AGREEMENT The undersigned, Team, Inc., a Texas corporation ("Team"), and Houston Post Oak Partners, Ltd., a Texas limited partnership ("Partnership"), enter into this Stock Purchase Agreement to be effective as of this the 19th day of June, 1998 ("Effective Date"). WHEREAS, Team and the Partnership (collectively the "Parties") entered into a binding letter agreement (the "Letter Agreement") effective May 22, 1998 pursuant to which Team agreed to sell to the Partnership and the Partnership agreed to purchase from Team 1,200,000 shares (herein the "Team Stock") of the common stock, $.30 par value, of Team for an aggregate purchase price of $3,300,000 to be paid in full at the closing ("Closing") of the purchase and sale of the Team Stock (herein the "Transaction"); and, WHEREAS, the Letter Agreement provides, among other things, that the Parties will enter into a Definitive Agreement with respect to the Transaction on or before June 12, 1998, which will: (i) contain representations and warranties which are customary to transactions of this sort, (ii) contain such covenants as the parties may agree upon, and (iii) provide that the Transaction will close on or before June 22, 1998; and, WHEREAS, the Parties hereby enter into this agreement ("Definitive Agreement") in accordance with the provisions of the Letter Agreement for the purpose of setting forth more fully their understandings with respect to the Transaction; NOW, THEREFORE, in consideration of the recitals, the mutual promises of the parties and other good and valid consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows: 1. PURCHASE AND SALE OF TEAM STOCK - THE CLOSING. Subject to the satisfaction of the conditions contained in paragraph 5 below, at the Closing the Partnership shall purchase and Team shall sell the Team Stock for the aggregate amount of $3,300,000 (the "Purchase Price"), all of which shall be paid in full at the Closing. The Closing shall take place at 10:00 a.m. local time on June 22, 1998 (the "Closing Date") at Suite 1400, Two Allen Center, 1200 Smith Street, Houston, Texas or at such other time and place as the Parties shall mutually agree. At the Closing, 2 the Partnership shall deliver to Team its payment for the entire Purchase Price, and Team shall deliver to the Partnership a Certificate for the Team Stock, and each Party shall deliver to the other such Party's certificate to the effect that such Party's representations and warranties contained herein are true and correct as of the Closing Date. 2. TEAM'S REPRESENTATIONS AND WARRANTIES. Team hereby represents and warrants to the Partnership as follows: (a) Team has full power and authority to execute and deliver this Definitive Agreement and to perform its obligations hereunder. This Definitive Agreement constitutes the valid and legally binding obligation of Team, enforceable in accordance with its terms and conditions. The Team Stock, when issued, shall be validly issued, fully paid and non-assessable; (b) Team's most recent Form 10-K Report to the Securities Exchange Commission ("SEC"), its most recent Proxy Statement, and all reports filed by Team with the SEC since its most recent Form 10-K are true and correct in all material respects as of the date hereof; and, (c) Attached hereto is a true and correct copy of a fairness opinion received by Team from The GulfStar Group. 3. PARTNERSHIP'S REPRESENTATIONS AND WARRANTIES. The Partnership represents and warrants to Team as follows: (a) The members of the Partnership shall on the Closing Date all be "accredited investors" as such term is used in Regulation D of the Securities Act of 1933, as amended (the "Act") or, with respect to those who are members of the Partnership but who are not "accredited investors," such persons (i) are of significant means, (ii) are sophisticated and have such knowledge and experience as is necessary to enable such persons to evaluate the merits and risks of an investment in the Team Stock, (iii) have had the opportunity to ask questions of and receive answers concerning Team and the Partnership's investment in Team Stock, (iv) have had the opportunity to discuss with, ask questions of, and receive answers from Louis A. Waters concerning Team and the Partnership's investment in Team Stock, and (v) are able to bear the economic risk of an investment in the Team Stock for an indefinite period. (b) Louis A. Waters is the sole managing general partner of 2 3 the Partnership and it is his intention to remain in that capacity throughout the term of the Partnership's legal existence; (c) The Partnership is acquiring the Team Stock for investment and not with a view to the distribution thereof; and, (d) The Partnership has been represented by independent counsel in connection with this Definitive Agreement and the Transaction. 4. REGISTRATION RIGHTS. (a) Until the Team Stock is transferrable pursuant to Rule 144 under the Act without the volume limitations set forth in such rule, Partnership shall have the right to include its Team Stock in any registration statement filed by Team; provided, however, that if any such registration statement is an underwritten public offering, the right of the Partnership to include such Team Stock in such registration statement shall be conditioned upon Partnership's entering into such reasonable underwriting arrangements as Team and the underwriters shall make regarding the offering, including limiting the number of shares which may be sold in such offering if the underwriters deem such a limitation advisable, and provided further that, if such limitation is imposed, Team shall then reduce the number of shares of Team Stock being registered by the Partnership on a pro rata basis with other holders of similar registration rights. The Partnership shall pay its pro rata portion of the out-of-pocket selling expenses in connection with the piggy-back rights exercised pursuant to this paragraph 4(a). (b) Partnership may at any time after the eighteenth (18th) month following the Closing Date make a one-time demand upon Team to file within 90 days after such written demand is made a shelf registration statement with the SEC covering the resale of the shares of Team Stock owned by the Partnership. The right to make such demand for registration is referred to herein as the "Demand Registration". Team shall use its reasonable best efforts to cause such registration statement to become effective as soon as practicable after the filing thereof. Team can defer the registration for an additional 90 days if the Team Board of Directors determines that such deferral would be in Team's best interest. Team agrees to take all reasonable steps necessary to keep the registration statement effective until the lesser of (A) 3 4 two years after the effective date of the shelf registration or (B) until the shares of Team Stock covered by such registration statement are transferrable pursuant to Rule 144 under the Act without the volume limitations set forth in such rule. The Partnership shall pay for all reasonable out-of-pocket expenses incurred in connection with any Demand Registration pursuant to this paragraph 4(b). 5. CONDITIONS TO OBLIGATIONS OF PARTIES TO CLOSE. In addition to the requirement that the deliveries contained in paragraph 1 above be made at the Closing, it shall be a condition of the duty of each Party to close the Transaction that no legal or governmental action shall have been instituted as of the Closing Date which shall cause either Party to reasonably conclude that the Transaction should not be consummated. In addition, if one or more of the representations, warranties and/or covenants contained in this Definitive Agreement are determined by a non-breaching Party prior to the Closing to have been breached ("Breached Warranty"), the non-breaching Party may, at such Party's election, waive such Breached Warranty and close the Transaction in accordance with this Definitive Agreement, or such non-breaching Party may terminate this Definitive Agreement and, in such event, the Parties hereto shall have no further liability under this Definitive Agreement. 6. CONFIDENTIALITY. Each Party agrees to keep the terms of this Definitive Agreement confidential except to the extent that such Party shall be required by law to make disclosure hereof. 7. ENTIRE AGREEMENT. This Definitive Agreement sets forth the full agreement of the Parties and supersedes all other Agreements of the Parties including, without limitation, the Letter Agreement. 8. APPLICABLE LAWS. This Definitive Agreement shall be construed and enforceable under the laws of the State of Texas. In witness whereof the Parties have signed this Definitive Agreement as of the date first above written. 4 5 TEAM, INC. By /s/ WILLIAM A. RYAN -------------------------- William A. Ryan, Chairman HOUSTON POST OAK PARTNERS, LTD. By /s/ LOUIS A. WATERS -------------------------- Louis A. Waters, Managing General Partner 5 EX-10.AA 4 STOCK PURCHASE AGREEMENT DATED 7/03/98 1 EXHIBIT 10(aa) STOCK PURCHASE AGREEMENT THIS STOCK PURCHASE AGREEMENT dated as of July 3, 1998 (the "Agreement"), is entered into by and among TEAM, INC., a Texas corporation ("Team"), R. LEROY AND PAULA BENHAM, both of whom are individual residents of the State of Oregon (the "Benhams"), THE CLIMAX PORTABLE MACHINE TOOLS, INC. EMPLOYEE STOCK OWNERSHIP PLAN TRUST (the "ESOP"), which is a qualified plan under Section 401(a) of the Code (defined below) and an exempt trust under Section 501(a) of the Code, PHILLIP R. EDIN, TRUSTEE OF THE PHILLIP EDIN LIVING TRUST U/T/A DATED NOVEMBER 25, 1996, a trust created under the laws of the State of Oregon (the "Edin Trust"), and TERRY W. WEIGEL, an individual resident of the State of Oregon ("Weigel"). The Benhams, the ESOP, the Edin Trust and Weigel are referred to collectively herein as the "Sellers" and individually as "Seller." Team and the Sellers are referred to collectively herein as the "Parties." INTRODUCTION This Agreement contemplates a transaction in which Team will purchase from the Sellers, and the Sellers will sell to Team, all of the outstanding capital stock that the Sellers own of Climax in return for the consideration provided below. 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. AGREEMENT 1. Definitions. 1.1. "Accredited Investor" has the meaning set forth in Regulation D promulgated under the Securities Act. 1.2. "Adverse Consequences" means the dollar amount of any and all losses suffered by and/or to be suffered by the Party who is entitled to be indemnified pursuant to Section 9 as the result of a breach of a representation, warranty and/or covenant by the other Party, including all actions, suits, proceedings, hearings, investigations, charges, complaints, claims, demands, injunctions, judgments, orders, decrees, rulings, damages, dues, penalties, fines, costs, reasonable amounts paid in settlement, Liabilities, obligations, Taxes, liens, losses, expenses, and fees, including court costs and reasonable attorneys' fees and expenses, including expenses of defending and/or pursuing a Third Party Claim, and which relate to facts or circumstances arising on or prior to the Closing Date. The Parties shall take into account Tax benefits, insurance proceeds (reasonably certain of receipt and utility in each case), and the time cost of money 2 (using the Applicable Rate as of the date the claim is paid as the discount rate) in determining Adverse Consequences. 1.3. "Affiliate" has the meaning set forth in Rule 12b-2 of the regulations promulgated under the Securities Exchange Act. 1.4. "Affiliated Group" means any affiliated group within the meaning of Code Sec. 1504 or any similar group defined under a similar provision of state, local or foreign law. 1.5. "Alsana" means Alsana, Inc. d/b/a Otto Tool Company, a California corporation. 1.6. "Alsana Bonus" has the meaning set forth in Section 6.10 below. 1.7. "Alsana Documents" means the following documents: that certain Stock Purchase Agreement, by and among Climax, Alan S. Avis, Jr., Brian E. Rodman, Bennie G. Crisp, and Patricia L. Avis, dated September 3, 1997; that certain Buy-Sell Agreement, by and among the same parties, also dated September 3, 1997; that certain Settlement Agreement, Release and Termination of Buy-Sell Agreement, by and among the same parties, dated May 21, 1998; that certain Affidavit of William Bianca, dated May 20, 1998; that certain Release by Kinetic Systems, Inc., a California corporation, dated May 20, 1998; that certain Agreement and Bill of Sale Regarding Gardner-Denver Air Compressor, by Alsana and Bar Fitting & Valve Corporation, dated May 21, 1998; that certain $404,556 Promissory Note, by Climax in favor of Alan S. Avis, Jr. and Patricia L. Avis, as community property, dated May 21, 1998; that certain $35,000 Promissory Note, by Climax in favor of Alan S. Avis, Jr., dated May 21, 1998; that certain $98,972.74 Promissory Note by Alsana in favor of Alan S. Avis, Jr., dated September 5, 1997; and that certain $249,278.03 Promissory Note by Alsana in favor of Alan S. Avis, Jr. and Patricia L. Avis as community property, dated September 3, 1997. 1.8. "Alsana Litigation" has the meaning set forth in Section 9.8 below. 1.9. "Applicable Rate" means the corporate prime rate of interest published from time to time in the national edition of The Wall Street Journal. 1.10. "Audit" has the meaning set forth in Section 6.10 below. 1.11. "Audit Report" has the meaning set forth in Section 6.10 below. 1.12. "Audited Financial Statements" has the meaning set forth in Section 6.10 below. 2 3 1.13. "Basis" means any past or present fact, situation, circumstance, status, condition, activity, practice, plan, occurrence, event, incident, action, failure to act, or transaction that forms or could form the basis for any specified consequence. 1.14. "Cash" means payment by bank cashier's check, by wire transfer or delivery of other immediately available funds. 1.15. "Climax" means Climax Portable Machine Tools, Inc., an Oregon corporation. 1.16. "Climax Auditor" has the meaning set forth in Section 6.8 below. 1.17. "Climax Share" means any share of the common stock, without par value, of Climax. 1.18. "Closing" has the meaning set forth in Section 2.3 below. 1.19. "Closing Date" has the meaning set forth in Section 2.3 below. 1.20. "Code" means the Internal Revenue Code of 1986, as amended. 1.21. "Confidential Information" means any information concerning the businesses and affairs of Climax and its Subsidiaries that is not already generally available to the public. 1.22. "Controlled Group of Corporations" has the meaning set forth in Code Sec. 1563. 1.23. "Deferred Intercompany Transaction" has the meaning set forth in Treas. Reg. Section 1.1502-13. 1.24. "Delivery Date" has the meaning set forth in Section 4 below. 1.25. "Disclosure Schedule" has the meaning set forth in Section 4 below. 1.26. "Employee Benefit Plan" means any (a) nonqualified deferred compensation or retirement plan or arrangement which is an Employee Pension Benefit Plan, (b) qualified defined contribution retirement plan or arrangement which is an Employee Pension Benefit Plan, (c) qualified defined benefit retirement plan or arrangement which is an Employee Pension Benefit Plan (including any Multiemployer Plan), or (d) Employee Welfare Benefit Plan. 3 4 1.27. "Employee Pension Benefit Plan" has the meaning set forth in ERISA Sec. 3(2). 1.28. "Employee Welfare Benefit Plan" has the meaning set forth in ERISA Sec. 3(1). 1.29. "Environmental, Health, and Safety Laws" means the Comprehensive Environmental Response, Compensation and Liability Act of 1980, the Resource Conservation and Recovery Act of 1976, and the Occupational Safety and Health Act of 1970, each as amended, together with all other laws (including rules, regulations, codes, plans, injunctions, judgments, orders, decrees, rulings, and charges thereunder) of federal, state, local, and foreign governments (and all agencies thereof) concerning pollution or protection of the environment, public health and safety, or employee health and safety, including laws relating to emissions, discharges, releases, or threatened releases of pollutants, contaminants, or chemical, industrial, hazardous, or toxic materials or wastes into ambient air, surface water, ground water, or lands or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport, or handling of pollutants, contaminants, or chemical, industrial, hazardous, or toxic materials or wastes. 1.30. "ERISA" means the Employee Retirement Income Security Act of 1974, as amended. 1.31. "ESOP Contribution" has the meaning set forth in Section 6.9 below. 1.32. "Escrow Agent" means West Coast Trust Co., Inc., d/b/a West Coast Trust. 1.33. "Escrow Agreement" means that certain Escrow Agreement in substantially the form of Exhibit F hereto. 1.34. "Escrowed Property" has the meaning set forth in Section 2.4 below. 1.35. "Excess Loss Account" has the meaning set forth in Treas. Reg. Section 1.1502-19. 1.36. "Extremely Hazardous Substance" has the meaning set forth in Sec. 302 of the Emergency Planning and Community Right-to-Know Act of 1986, as amended. 1.37. "Fiduciary" has the meaning set forth in ERISA Sec. 3(21). 1.38. "Financial Statement" has the meaning set forth in Section 5.7 below. 4 5 1.39. "GAAP" means United States generally accepted accounting principles as in effect from time to time, consistently applied. 1.40. "Indemnified Party" has the meaning set forth in Section 9.4 below. 1.41. "Indemnifying Party" has the meaning set forth in Section 9.4 below. 1.42. "Intellectual Property" means (a) all inventions (whether patentable or unpatentable and whether or not reduced to practice), all improvements thereto, and all patents, patent applications, and patent disclosures, together with all reissuances, continuations, continuations-in-part, revisions, extensions, and reexaminations thereof, (b) all trademarks, service marks, trade dress, logos, trade names, and corporate names, together with all translations, adaptations, derivations, and combinations thereof and including all goodwill associated therewith, and all applications, registrations, and renewals in connection therewith, (c) all copyrightable works, all copyrights, and all applications, registrations, and renewals in connection therewith, (d) all mask works and all applications, registrations, and renewals in connection therewith, (e) all trade secrets and confidential business information (including ideas, research and development, know-how, formulas, compositions, manufacturing and production processes and techniques, technical data, designs, drawings, specifications, customer and supplier lists, pricing and cost information, and business and marketing plans and proposals), (f) all computer software (including data and related documentation), (g) all other proprietary rights, and (h) all copies and tangible embodiments thereof (in whatever form or medium). 1.43. "June 30, 1998 Audited Balance Sheet" has the meaning set forth in Section 7.7 below. 1.44. "Knowledge" means, with respect to the Sellers, the actual knowledge of any of R. LeRoy Benham, Phillip R. Edin, and Terry W. Weigel and, with respect to Team, the actual knowledge of any of William A. Ryan, Kenneth M. Tholan, and Ted Owen. 1.45. "Liability" means any liability (whether known or unknown, whether asserted or unasserted, whether absolute or contingent, whether accrued or unaccrued, whether liquidated or unliquidated, and whether due or to become due), including any liability for Taxes. 1.46. "Most Recent Balance Sheet" means the balance sheet contained within the Most Recent Financial Statements. 5 6 1.47. "Most Recent Financial Statements" has the meaning set forth in Section 5.7 below. 1.48. "Most Recent Fiscal Month End" has the meaning set forth in Section 5.7 below. 1.49. "Most Recent Fiscal Year End" has the meaning set forth in Section 5.7 below. 1.50. "Multiemployer Plan" has the meaning set forth in ERISA Sec. 3(37). 1.51. "Net Worth Deficit" has the meaning set forth in Section 7.7 below. 1.52. "Net Worth Surplus" has the meaning set forth in Section 7.7 below. 1.53. "Ordinary Course of Business" means the ordinary course of business consistent with past custom and practice (including with respect to quantity and frequency). 1.54. "Party" has the meaning set forth in the preface above. 1.55. "PBGC" means the Pension Benefit Guaranty Corporation. 1.56. "Person" means an individual, a partnership, a corporation, a limited liability company, an association, a joint stock company, a trust, a joint venture, an unincorporated organization, or a governmental entity (or any department, agency, or political subdivision thereof). 1.57. "Problem Disclosures" has the meaning set forth in Section 4 below. 1.58. "Prohibited Transaction" has the meaning set forth in ERISA Sec. 406 and Code Sec. 4975. 1.59. "Purchase Price" has the meaning set forth in Section 2.2 below. 1.60. "Reportable Event" has the meaning set forth in ERISA Sec. 4043. 1.61. "SEC" means the United States Securities and Exchange Commission. 1.62. "Securities Act" means the Securities Act of 1933, as amended. 6 7 1.63. "Securities Exchange Act" means the Securities Exchange Act of 1934, as amended. 1.64. "Security Interest" means any mortgage, pledge, lien, encumbrance, charge, or other security interest, other than (a) mechanic's, materialmen's, and similar liens, (b) liens for Taxes not yet due and payable or for taxes that taxpayer is contesting in good faith through appropriate proceedings, (c) purchase money liens and liens securing rental payments under capital lease arrangements, and (d) other liens arising in the Ordinary Course of Business and not incurred in connection with the borrowing of money. 1.65. "Seller" has the meaning set forth in the preface above. 1.66. "Subsidiary" means any corporation with respect to which a specified Person (or a Subsidiary thereof) owns a majority of the common stock or has the power to vote or direct the voting of sufficient securities to elect a majority of the directors. 1.67. "Tax" means any federal, state, local, or foreign income, gross receipts, license, payroll, employment, excise, severance, stamp, occupation, premium, windfall profits, environmental (including taxes under Code Sec. 59A), customs duties, capital stock, franchise, profits, withholding, social security (or similar), unemployment, disability, real property, personal property, sales, use, transfer, registration, value added, alternative or add-on minimum, estimated, or other tax of any kind whatsoever, including any interest, penalty, or addition thereto, whether disputed or not. 1.68. "Tax Return" means any return, declaration, report, claim for refund, or information return or statement relating to Taxes, including any schedule or attachment thereto, and including any amendment thereof. 1.69. "Team's Auditor" has the meaning set forth in Section 7.7 below. 1.70. "Team Stock" means the common stock, $0.30 par value per share, of Team that Team shall issue to certain of the Sellers in accordance with the terms and conditions herein contained. 1.71. "Third Party Claim" has the meaning set forth in Section 9.4 below. 2. Purchase and Sale of Climax Shares. 7 8 2.1. Basic Transaction. Each Seller is the record owner of that number of Climax Shares set forth next to such Seller's name on Exhibit A attached hereto. At the Closing and subject to the terms and conditions of this Agreement, Team agrees to purchase from each of the Sellers, and each of the Sellers agrees to sell to Team, all of such Seller's Climax Shares for the consideration specified in Section 2.2 below and as reflected by Exhibit A. 2.2. Purchase Price. Team agrees to pay to each of the Sellers at the Closing $298.04 per Climax Share (the "Purchase Price"). At either of the Seller"s election respectively, Team shall pay the Purchase Price to the Sellers in Cash and Team Stock as provided more fully below. The Team Stock shall be valued at $4.00 per share for purposes of determining the number of shares of Team Stock, if any, which shall be issued in partial payment of the Purchase Price. Any payments of Cash hereunder shall be by wire transfer in immediately available funds. 2.2.1. Purchase Price for the Benhams' Climax Shares. The Benhams are each owners of record of 6,355 Climax Shares and the aggregate amount of the Purchase Price for the Climax Shares owned by each of the Benhams is $1,894,044.20 (i.e. 6,355 X $298.04). If the Benhams deliver their written election to Team at least five business days prior to the Closing to receive 100,000 shares of Team Stock in payment of $400,000 of the Purchase Price for the Benhams' Shares, Team shall deliver to the Benhams at Closing (i) certificates for 100,000 shares of Team Stock issued in the name specified by the Benhams in such written election (valued at $4.00 per share), and (ii) Cash for the remainder of the Purchase Price of their Climax Shares. Notwithstanding the foregoing, Team shall deliver to the Escrow Agent to be held in accordance with the terms of the Escrow Agreement property representing 15% of the Purchase Price for the Benhams" Climax Shares (which shall consist of 15% of the Cash portion of the Purchase Price and shares of Team Stock equal to 15% of the number of shares of Team Stock included in the Purchase Price). If no such written election to receive Team Stock is delivered by the Benhams to Team, Team shall deliver the full amount of the Purchase Price for the Benhams' Climax Shares in Cash to the Benhams at Closing, less 15% of said Purchase Price, which Team shall deliver to the Escrow Agent to be held in accordance with the terms of the Escrow Agreement. 2.2.2. Purchase Price for the ESOP's Climax Shares. The ESOP is owner of record of 7,762 Climax Shares and the aggregate amount of the Purchase Price for the ESOP's Climax Shares is $2,313,386.48. If the ESOP delivers its written election to Team at least five business days prior to the Closing to receive up to 289,173 shares of 8 9 Team Stock (i.e. $2,313,386 X 50% divided by $4) valued at $4 per share of the $2,313,386 Purchase Price for the ESOP's Climax Shares, Team shall deliver to the ESOP at the Closing certificates for that number of shares of Team Stock, if any, specified by such written election, up to a maximum of 289,173 shares, and shall deliver to the ESOP Cash for the remainder of the Purchase Price for the ESOP's Climax Shares. Notwithstanding the foregoing, Team shall deliver to the Escrow Agent to be held in accordance with the terms of the Escrow Agreement property representing 15% of the Purchase Price for the ESOP"s Climax Shares (which shall consist of 15% of the Cash portion of the Purchase Price and shares of Team Stock equal to 15% of the number of shares of Team Stock included in the Purchase Price). If the ESOP does not elect to receive any of the Purchase Price in Team Stock, Team shall deliver the entire amount of the Purchase Price for the ESOP's Climax Shares to the ESOP in Cash at the Closing, less 15% of said Purchase Price, which Team shall deliver to the Escrow Agent to be held in accordance with the terms of the Escrow Agreement. 2.2.3. Purchase Price for the Edin Trust's Climax Shares. The Edin Trust is owner of record of 340 Climax Shares and the aggregate amount of the Purchase Price for the Edin Trust's Climax Shares is $101,333.60. If the Edin Trust delivers its written election to Team at least five business days prior to the Closing to receive up to 12,666 shares of Team Stock (i.e. $101,333.60 X 50% divided by $4) valued at $4 per share of the $101,333.60 Purchase Price for the Edin Trust's Climax Shares, Team shall deliver to the Edin Trust at the Closing certificates for that number of shares of Team Stock, if any, specified by such written election, up to a maximum of 12,666 shares, and shall deliver to the Edin Trust Cash for the remainder of the Purchase Price for the Edin Trust's Climax Shares. Notwithstanding the foregoing, Team shall deliver to the Escrow Agent to be held in accordance with the terms of the Escrow Agreement property representing 15% of the Purchase Price for the Edin Trust"s Climax Shares (which shall consist of 15% of the Cash portion of the Purchase Price and shares of Team Stock equal to 15% of the number of shares of Team Stock included in the Purchase Price). If the Edin Trust does not elect to receive any of the Purchase Price in Team Stock, Team shall deliver the entire amount of the Purchase Price for the Edin Trust's Climax Shares to the Edin Trust in Cash at the Closing, less 15% of said Purchase Price, which Team shall deliver to the Escrow Agent to be held in accordance with the terms of the Escrow Agreement. 2.2.4. Purchase Price for Weigel's Climax Shares. Weigel is owner of record of 180 Climax Shares and the aggregate amount of the Purchase Price for Weigel's Climax Shares is $53,647.20. If Weigel delivers his written election to Team at least five business days prior to the Closing to receive up to 6,705 shares of Team Stock (i.e. $53,647.20 X 9 10 50% divided by $4) valued at $4 per share of the $53,647.20 Purchase Price for Weigel's Climax Shares, Team shall deliver to Weigel at the Closing certificates for that number of shares of Team Stock, if any, specified by such written election, up to a maximum of 6,705 shares, and shall deliver to Weigel Cash for the remainder of the Purchase Price for Weigel's Climax Shares. Notwithstanding the foregoing, Team shall deliver to the Escrow Agent to be held in accordance with the terms of the Escrow Agreement property representing 15% of the Purchase Price for Weigel's Climax Shares (which shall consist of 15% of the Cash portion of the Purchase Price and shares of Team Stock equal to 15% of the number of shares of Team Stock included in the Purchase Price). If Weigel does not elect to receive any of the Purchase Price in Team Stock, Team shall deliver the entire amount of the Purchase Price for Weigel's Climax Shares to Weigel in Cash at the Closing, less 15% of said Purchase Price, which Team shall deliver to the Escrow Agent to be held in accordance with the terms of the Escrow Agreement. 2.3. The Closing. The closing of the transactions contemplated by this Agreement (the "Closing") shall take place at the offices of Greene & Markley, P.C., The 1515 Building, Suite 600, 1515 S.W. Fifth Avenue, Portland, Oregon, commencing at 9:00 a.m. local time on the second business day following the satisfaction or waiver of all conditions to the obligations of the Parties to consummate the transactions contemplated hereby (other than conditions with respect to actions the respective Parties will take at the Closing itself) or such other date as Team and the Sellers may mutually determine (the "Closing Date"); provided, however, that the Closing Date shall be no later than August 31, 1998. Irrespective of the actual date of the Closing, the transaction shall be deemed to have occurred for accounting purposes as of June 30, 1998. 2.4. Deliveries at the Closing. At the Closing, (i) the Sellers will deliver to Team the various certificates, instruments, and documents referred to in Section 8.1 below, (ii) Team will deliver to the Sellers the various certificates, instruments, and documents referred to in Section 8.2 below, (iii) each of the Sellers will deliver to Team stock certificates representing all of such Seller's Climax Shares, endorsed in blank or accompanied by duly executed assignment documents, (iv) Team will deliver to each of the Sellers the consideration specified in Section 2.2 above, and (v) Team will deliver 15% of the aggregate Purchase Price, as specified in Section 2.2 above (the "Escrowed Property"), to the Escrow Agent to be held pursuant to the terms and conditions of the Escrow Agreement. 3. Representations and Warranties Concerning the Transaction. 10 11 3.1. Representations and Warranties of the Sellers. Each Seller severally and not jointly represents and warrants to Team that the statements with respect to such Seller contained in this Section 3.1 are correct and complete as of the date of this Agreement and will be correct and complete as of the Closing Date, as though made then and as though the Closing Date were substituted for the date of this Agreement throughout this Section 3.1. 3.1.1. Organization of the ESOP. The ESOP is a qualified plan within the meaning of Section 401(a) of the Code and a determination letter of such qualified status by the Internal Revenue Service has been applied for and received. 3.1.2. Organization of the Edin Trust. The Edin Trust is a trust duly organized and validly existing under the laws of the jurisdiction of its organization. 3.1.3. Authorization of Transaction. Seller has the legal power, authority and capacity to execute and deliver this Agreement and to perform his or its obligations hereunder. This Agreement constitutes the valid and legally binding obligation of the Seller, enforceable in accordance with its terms and conditions, except as enforceability may be limited or affected by applicable bankruptcy, insolvency, reorganization or other laws of general application relating to or affecting the rights of creditors and except as enforceability may be limited by rules of law governing specific performance, injunctive relief or other equitable remedies. The Seller does not need to give any notice to, make any filing with, or obtain any authorization, consent, or approval of any government or governmental agency in order to consummate the transactions contemplated by this Agreement. 3.1.4. Noncontravention. Neither the execution and the delivery of this Agreement, nor the consummation of the transactions contemplated hereby, will (A) violate any constitution, statute, regulation, rule, injunction, judgment, order, decree, ruling, charge, or other restriction of any government, governmental agency, or court to which the Seller is subject or, with respect to the ESOP, any provision of its plan documents, or with respect to the Edin Trust, any provision of its trust indenture or other organizational documents, or (B) conflict with, result in a breach of, constitute a default under, result in the acceleration of, create in any party the right to accelerate, terminate, modify, or cancel, or require any notice under any agreement, contract, lease, license, instrument, or other arrangement to which the Seller is a party or by which he or it is bound or to which any of his, her, or its assets is subject. 11 12 3.1.5. Brokers' Fees. The Seller does not have any Liability or obligation to pay any fees or commissions to any broker, finder, or agent with respect to the transactions contemplated by this Agreement for which Team could become liable or obligated. 3.1.6. Investment. With respect to those Sellers who are acquiring shares of Team Stock hereunder, such Seller (A) understands that the Team Stock has not been, and will not be, registered under the Securities Act, or under any state securities laws, and are being offered and sold in reliance upon federal and state exemptions for transactions not involving any public offering, (B) is acquiring the Team Stock solely for his, her, or its own account for investment purposes, and not with a view to the distribution thereof, (C) is a sophisticated investor with knowledge and experience in business and financial matters, (D) has received Team's most recent Form 10-K report to the SEC and Proxy Statement pursuant to the Securities Exchange Act, and all reports that Team has filed with the SEC pursuant to the Securities Exchange Act since its most recent Form 10-K, and has had the opportunity to obtain additional information as desired in order to evaluate the merits and the risks inherent in holding the Team Stock, (E) is able to bear the economic risk and lack of liquidity inherent in holding the Team Stock, and (F), except for the ESOP, the Edin Trust and Weigel, is an Accredited Investor. 3.1.7. Climax Shares. The Seller holds of record and, except for the ESOP, owns beneficially the number of Climax Shares set forth next to his, hers or its name on Exhibit A, free and clear of any restrictions on transfer (other than any restrictions under the Securities Act and state securities laws), Taxes, Security Interests, options, warrants, purchase rights, contracts, commitments, equities, claims, and demands. The Seller is not a party to any option, warrant, purchase right, or other contract or commitment that could require such Seller to sell, transfer, or otherwise dispose of any capital stock of Climax (other than this Agreement). The Seller is not a party to any voting trust, proxy, or other agreement or understanding with respect to the voting of any capital stock of Climax. 3.2. Representations and Warranties of Team. Team represents and warrants to the Sellers that the statements contained in this Section 3.2 are correct and complete as of the date of this Agreement and will be correct and complete as of the Closing Date (as though made then and as though the Closing Date were substituted for the date of this Agreement throughout this Section 3.2). 3.2.1. Organization of Team. Team is a corporation duly organized, validly existing, and in good standing under the laws of the jurisdiction of its incorporation. 12 13 3.2.2. Authorization of Transaction. Team has full power and authority (including full corporate power and authority) to execute and deliver this Agreement and to perform its obligations hereunder. This Agreement constitutes the valid and legally binding obligation of Team, enforceable in accordance with its terms and conditions, except as enforceability may be limited or affected by applicable bankruptcy, insolvency, reorganization or other laws of general application relating to or affecting the rights of creditors and except as enforceability may be limited by rules of law governing specific performance, injunctive relief or other equitable remedies. Team does not need to give any notice to, make any filing with, or obtain any authorization, consent, or approval of any government or governmental agency in order to consummate the transactions contemplated by this Agreement. 3.2.3. Noncontravention. Neither the execution and the delivery of this Agreement, nor the consummation of the transactions contemplated hereby, will (A) violate any constitution, statute, regulation, rule, injunction, judgment, order, decree, ruling, charge, or other restriction of any government, governmental agency, or court to which Team is subject or any provision of its charter or bylaws or (B) conflict with, result in a breach of, constitute a default under, result in the acceleration of, create in any party the right to accelerate, terminate, modify, or cancel, or require any notice under any agreement, contract, lease, license, instrument, or other arrangement to which Team is a party or by which it is bound or to which any of its assets is subject. 3.2.4. Brokers' Fees. Team has no Liability or obligation to pay any fees or commissions to any broker, finder, or agent with respect to the transactions contemplated by this Agreement for which any Seller could become liable or obligated. 3.2.5. Investment. Team is not acquiring Climax Shares with a view to or for sale in connection with any distribution thereof within the meaning of the Securities Act. 4. Preparation and Delivery of Disclosure Schedule--Team's Right to Review. On or before the 30th day following the date of this Agreement, the Sellers will prepare and deliver to Team a disclosure schedule (the "Disclosure Schedule"), which shall supply the various items specified by Section 5 hereof. If Team does not notify the Sellers on or before the tenth (10th) day following the date of the delivery to Team of the Disclosure Schedule (the "Delivery Date") that it takes exception to any one or more of the disclosures contained in the Disclosure Schedule, the 13 14 Disclosure Schedule will be deemed to be accepted by Team for purposes of this Agreement. If, however, any disclosures ("Problem Disclosures") contained in the Disclosure Schedule cause Team, acting in its sole and absolute discretion, to determine that it may be inadvisable for Team to proceed with the acquisition of Climax pursuant to the provisions of this Agreement, then Team will so notify the Sellers within 10 days of the Delivery Date and the Parties acting in good faith will attempt to agree upon a mutually satisfactory solution to Team's concern with the Problem Disclosures. If the Parties are unable to resolve the Problem Disclosures within 20 days after the Delivery Date, Team acting in its sole and absolute discretion may by written notice to the Sellers on or before the 25th day after the Delivery Date terminate this Agreement without liability to any Party. The Disclosure Schedule will be arranged in paragraphs corresponding to the lettered and numbered paragraphs contained in Section 5 of this Agreement. The Sellers shall endeavor to disclose in the Disclosure Schedule each item of information in each separate section of the Disclosure Schedule in which such item may reasonably be required to be disclosed. Notwithstanding the foregoing, if an item is disclosed in one section of the Disclosure Schedule, it shall be deemed to have been disclosed in all other sections of the Disclosure Schedule if on the face of such disclosure, the plain meaning of the disclosure or the context in which the disclosure is used would reasonably apply to another section of the Disclosure Schedule, and the failure of the Sellers to disclose it in multiple sections of the Disclosure Schedule shall not be a breach of this Agreement. Similarly, the Sellers may disclose items in Sections of the Disclosure Schedule corresponding to a paragraph in Section 5 of this Agreement, even if such paragraph does not reference the Disclosure Schedule, without being in breach of this Agreement. The disclosure of information in the Disclosure Schedule shall not be construed as an admission that any such information is material to the Sellers or the business or operations of the Company or its Subsidiaries. The Disclosure Schedule is qualified in its entirety by reference to the specific provisions of this Agreement, and none of the disclosures contained in the Disclosure Schedule are intended to constitute, and shall not be construed as constituting, representations or warranties except as and to the extent specifically provided in this Agreement. 5. Representations and Warranties Concerning Climax and Its Subsidiaries. The Sellers represent and warrant to Team that the statements contained in this Section 5 (including the information contained in the Disclosure Schedule delivered by the Sellers to Team pursuant to Section 4 above) will be correct and complete on the Delivery Date and will be correct and complete as of the Closing Date as though made then and as though the Closing Date were substituted for the Delivery Date throughout this Section 5. 5.1. Organization, Qualification, and Corporate Power. Climax and each Subsidiary, as defined in Section 5.6, is a corporation duly organized, validly existing, and in good standing 14 15 if applicable) under the laws of the jurisdiction of its incorporation. Climax and each Subsidiary is duly authorized to conduct business and is in good standing under the laws of each jurisdiction where such qualification is required, except where the failure to so qualify would not have a material adverse effect. Each Climax and each Subsidiary has full corporate power and authority and all licenses, permits, and authorizations necessary to carry on the businesses in which it is engaged and in which it presently proposes to engage and to own and use the properties owned and used by it, except for such licenses, permits and authorizations the failure of which to have will not have a material adverse effect. Section 5.1 of the Disclosure Schedule lists the directors and officers of Climax and each Subsidiary. The Sellers have delivered to Team correct and complete copies of the charter and bylaws of each Climax and each Subsidiary as amended to date. The minute books (containing the records of meetings of the stockholders, the board of directors, and any committees of the board of directors), the stock certificate books, and the stock record books of Climax and each Subsidiary are correct and complete in all material respects. Neither Climax nor any Subsidiary is in default under or in violation of any provision of its charter or bylaws. 5.2. Capitalization. The entire authorized capital stock of Climax consists of 50,000 common shares without par value, of which 24,235 Climax shares are issued and outstanding and no shares are held in treasury. All of the issued and outstanding Climax Shares have been duly authorized, are validly issued, fully paid, and nonassessable, and are held of record by the respective Sellers as set forth in Exhibit A. There are no outstanding or authorized options, warrants, purchase rights, subscription rights, conversion rights, exchange rights, or other contracts or commitments that could require Climax to issue, sell, or otherwise cause to become outstanding any of its capital stock. There are no outstanding or authorized stock appreciation, phantom stock, profit participation, or similar rights with respect to Climax. There are no voting trusts, proxies, or other agreements or understandings with respect to the voting of the capital stock of Climax. 5.3. Noncontravention. Neither the execution and the delivery of this agreement, nor the consummation of the transactions contemplated hereby, will in any material way (i) violate any constitution, statute, regulation, rule, injunction, judgment, order, decree, ruling, charge, or other restriction of any government, governmental agency, or court to which Climax and its Subsidiaries are subject or any provision of the charter or bylaws of Climax and its Subsidiaries or (ii) conflict with, result in a breach of, constitute a default under, result in the acceleration of, create in any party the right to accelerate, terminate, modify, or cancel, or require any notice under any agreement, contract, lease, license, instrument, or other arrangement to which Climax and its Subsidiaries is a party or by which it is bound or to which any of its assets is subject (or 15 16 result in the imposition of any Security Interest upon any of its assets). Climax and its Subsidiaries shall not be required to give any notice to, make any filing with, or obtain any authorization, consent, or approval of any government or governmental agency in order for the Parties to consummate the transactions contemplated by this Agreement. 5.4. Brokers' Fees. None of Climax and its Subsidiaries has any Liability or obligation to pay any fees or commissions to any broker, finder, or agent with respect to the transactions contemplated by this Agreement. 5.5. Title to Assets. Except as disclosed by Section 5.5 of the Disclosure Schedule, Climax and its Subsidiaries each have good and marketable title to, or a valid leasehold interest in, the properties and assets used by it, located on its premises, or shown on the Most Recent Balance Sheet or acquired after the date thereof, free and clear of all Security Interests, except for properties and assets acquired and/or disposed of in the Ordinary Course of Business since the date of the Most Recent Balance Sheet. 5.6. Subsidiaries. Section 5.6 of the Disclosure Schedule sets forth the following information with respect to each entity in which Climax owns a material interest: (i) its correct corporate name and state of organization (ii) the number of shares of authorized capital stock of each class of its capital stock, (iii) the number of issued and outstanding shares of each class of its capital stock, the names of the holders thereof, and the number of shares held by each such holder, and (iv) the number of shares of its capital stock held in treasury. All of the issued and outstanding shares of capital stock of the each such Subsidiary have been duly authorized and are validly issued, fully paid, and nonassessable. Climax holds of record and owns beneficially the number of the outstanding shares of each Subsidiary disclosed in Section 5.6 of the Disclosure Schedule, free and clear of any restrictions on transfer (other than restrictions under the Securities Act and state securities laws), Taxes, Security Interests, options, warrants, purchase rights, contracts, commitments, equities, claims, and demands. There are no outstanding or authorized options, warrants, purchase rights, conversion rights, exchange rights, or other contracts or commitments that could require Climax or a Subsidiary to sell, transfer, or otherwise dispose of any capital stock of a Subsidiary or that could require a Subsidiary to issue, sell, or otherwise cause to become outstanding any of its own capital stock. There are no outstanding stock appreciation, phantom stock, profit participation, or similar rights with respect to any Subsidiary. There are no voting trusts, proxies, or other agreements or understandings with respect to the voting of any capital stock of any Subsidiary. Neither Climax nor any Subsidiary controls directly or indirectly or has any direct or indirect equity participation in any corporation, partnership, trust, or other business association which is not a Subsidiary of Climax. 16 17 5.7. Financial Statements. Attached hereto as Exhibit B are the following financial statements (collectively, the "Financial Statements"): (i) unaudited consolidated and consolidating balance sheets and statements of income, changes in stockholders' equity, and cash flow as of and for the fiscal years ended December 31, 1995, December 31, 1996, and December 31, 1997 (the "Most Recent Fiscal Year End") for Climax and its Subsidiaries; and (ii) unaudited consolidated and consolidating balance sheets and statements of income, changes in stockholders' equity, and cash flow (the "Most Recent Financial Statements") as of and for the three months ended March 31, 1998 (the "Most Recent Fiscal Month End") for Climax and its Subsidiaries. The Financial Statements have been prepared in the Ordinary Course of Business in accordance with the accounting policies and procedures customarily followed by Climax and its Subsidiaries and in accordance with GAAP in all material respects, and on a consistent basis throughout the periods covered thereby. The Financial Statements present fairly in all material respects the financial condition of Climax and its Subsidiaries as of such dates and the results of operations of Climax and its Subsidiaries for such periods; provided, however, that the Most Recent Financial Statements lack footnotes and other presentation items. 5.8. Events Subsequent to the date of the Most Recent Financial Statements. Except as disclosed on Section 5.8 of the Disclosure Schedule, since the Most Recent Fiscal Month End through the date hereof, there has not been any material adverse change in the business, financial condition, operations, results of operations, or future prospects of any of Climax and its Subsidiaries. Without limiting the generality of the foregoing, except as disclosed on Section 5.8 of the Disclosure Schedule, since the Most Recent Fiscal Month End: 5.8.1. neither Climax nor any Subsidiary has sold, leased, transferred, or assigned any of its assets, tangible or intangible, other than for a fair consideration in the Ordinary Course of Business; 5.8.2. neither Climax nor any Subsidiary has entered into any agreement, contract, lease or license (or series of related agreements, contracts, leases, and licenses) either involving more than $10,000 or outside the Ordinary Course of Business; 5.8.3. no party (including any of Climax and its Subsidiaries) has accelerated, terminated, modified, or canceled any agreement, contract, lease, or license (or series of related agreements, contracts, leases, and licenses) involving more than $10,000 to which any of Climax and its Subsidiaries is a party or by which any of them is bound; 17 18 5.8.4. neither Climax nor any Subsidiary has imposed any Security Interest upon any of its assets, tangible or intangible; 5.8.5. neither Climax nor any Subsidiary has made any capital expenditure (or series of related capital expenditures) either involving more than $10,000 or outside the Ordinary Course of Business; 5.8.6. neither Climax nor any Subsidiary has made any capital investment in, any loan to, or any acquisition of the securities or assets of, any other Person (or series of related capital investments, loans, and acquisitions) either involving more than $10,000 or outside the Ordinary Course of Business; 5.8.7. neither Climax nor any Subsidiary has issued any note, bond, or other debt security or created, incurred, assumed, or guaranteed any indebtedness for borrowed money or capitalized lease obligation either involving more than $10,000 singly or $100,000 in the aggregate; 5.8.8. neither Climax nor any Subsidiary has delayed or postponed the payment of accounts payable and other Liabilities outside the Ordinary Course of Business; 5.8.9. neither Climax nor any Subsidiary has canceled, compromised, waived, or released any right or claim (or series of related rights and claims) either involving more than $10,000 or outside the Ordinary Course of Business; 5.8.10. neither Climax nor any Subsidiary has granted any license or sublicense of any rights under or with respect to any Intellectual Property; 5.8.11. there has been no change made or authorized in the charter or bylaws of any of Climax and its Subsidiaries; 5.8.12. neither Climax nor any Subsidiary has issued, sold, or otherwise disposed of any of its capital stock, or granted any options, warrants, or other rights to purchase or obtain (including upon conversion, exchange, or exercise) any of its capital stock; 5.8.13. neither Climax nor any Subsidiary has declared, set aside, or paid any dividend or made any distribution with respect to its capital stock (whether in cash or in 18 19 kind) or redeemed, purchased, or otherwise acquired any of its capital stock; 5.8.14. neither Climax nor any Subsidiary has experienced any damage, destruction, or loss (whether or not covered by insurance) to its property; 5.8.15. neither Climax nor any Subsidiary has made any loan to, or entered into any other transaction with, any of its directors, officers, and employees outside the Ordinary Course of Business; 5.8.16. neither Climax nor any Subsidiary has entered into any employment contract or collective bargaining agreement, written or oral, or modified the terms of any existing such contract or agreement outside the Ordinary Course of Business; 5.8.17. neither Climax nor any Subsidiary has granted any increase in the base compensation of any of its directors, officers, and employees outside the Ordinary Course of Business; 5.8.18. neither Climax nor any Subsidiary has adopted, amended, modified, or terminated any bonus, profit-sharing, incentive, severance, or other plan, contract, or commitment for the benefit of any of its directors, officers, and employees (or taken any such action with respect to any other Employee Benefit Plan) outside the Ordinary Course of Business; 5.8.19. neither Climax nor any Subsidiary has made any other change in employment terms for any of its directors, officers, and employees outside the Ordinary Course of Business; 5.8.20. neither Climax nor any Subsidiary has made or pledged to make any charitable or other capital contribution outside the Ordinary Course of Business; 5.8.21. there has not been any other occurrence, event, incident, action, failure to act, or transaction outside the Ordinary Course of Business involving any of Climax and its Subsidiaries; and 5.8.22. neither Climax nor any Subsidiary has committed to any of the foregoing. 5.9. Undisclosed Liabilities. Except as disclosed by Section 5.9 of the Disclosure Schedule, the Sellers do not have any Knowledge that either Climax or any Subsidiary has any 19 20 Liability, except for (i) Liabilities included in the Most Recent Balance Sheet and (ii) Liabilities which have arisen after the Most Recent Fiscal Month End in the Ordinary Course of Business. 5.10. Legal Compliance. Except as disclosed by Section 5.10 of the Disclosure Schedule, Climax, the Subsidiaries, and their respective predecessors and Affiliates have complied with all applicable laws (including rules, regulations, codes, plans, injunctions, judgments, orders, decrees, rulings, and charges thereunder) of federal, state, local, and foreign governments (and all agencies thereof), and no action, suit, proceeding, hearing, complaint, claim, demand, or notice has been filed against any of them alleging any failure so to comply. This Section 5.10 shall not apply to any representation set forth elsewhere in this Agreement addressing compliance by Climax or any Subsidiary with all such applicable laws as determined by the context of the representation. 5.11. Tax Matters. Except as disclosed by Section 5.11 of the Disclosure Schedule, the following statements are correct and complete: 5.11.1. Climax and its Subsidiaries have each filed all Tax Returns that it was required to file. All such Tax Returns were correct and complete in all respects. All Taxes owed by Climax and its Subsidiaries (whether or not shown on any Tax Return) have been paid. Neither Climax nor any Subsidiary currently is the beneficiary of any extension of time within which to file any Tax Return. No claim has ever been made by an authority in a jurisdiction where any of Climax and its Subsidiaries does not file Tax Returns that it is or may be subject to taxation by that jurisdiction. There are no Security Interests on any of the assets of any of Climax and its Subsidiaries that arose in connection with any failure (or alleged failure) to pay any Tax. 5.11.2. Climax and each Subsidiary has withheld and paid all Taxes required to have been withheld and paid in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder, or other third party. 5.11.3. No Seller or director or officer of Climax or any Subsidiary expects any taxing authority to assess any additional Taxes for any period for which Tax Returns have been filed. There is no dispute or claim concerning any Tax Liability of any of Climax and its Subsidiaries either (A) claimed or raised by any authority in writing or (B) as to which any of the Sellers has Knowledge based upon personal contact with any agent of 20 21 such authority. Section 5.11 of the Disclosure Schedule lists all federal, state, local, and foreign income Tax Returns filed with respect to any of Climax and its Subsidiaries for taxable periods ended on or after December 31, 1995, indicates those Tax Returns that have been audited, and indicates those Tax Returns that currently are the subject of audit. The Sellers have delivered to Team correct and complete copies of all federal income Tax Returns, examination reports, and statements of deficiencies assessed against or agreed to by any of Climax and its Subsidiaries since December 31, 1995. 5.11.4. Neither Climax or any Subsidiary has waived any statute of limitations in respect of Taxes or agreed to any extension of time with respect to a Tax assessment or deficiency. 5.11.5. Neither Climax nor any Subsidiary has filed a consent under Code Sec. 341(f) concerning collapsible corporations. Neither Climax nor any Subsidiary has made any payments, is obligated to make any payments, or is a party to any agreement that under certain circumstances could obligate it to make any payments that will not be deductible under Code Sec. 280G. Neither Climax nor any Subsidiary has been a United States real property holding corporation within the meaning of Code Sec. 897(c)(2) during the applicable period specified in Code Sec. 897(c)(1)(A)(ii). Each of Climax and its Subsidiaries has disclosed on its federal income Tax Returns all positions taken therein that could give rise to a substantial understatement of federal income Tax within the meaning of Code Sec. 6662. Neither Climax nor any Subsidiary is a party to any Tax allocation or sharing agreement. Neither Climax nor any Subsidiary (A) has been a member of an Affiliated Group filing a consolidated federal income Tax Return (other than a group the common parent of which was Climax) or (B) has any Liability for the Taxes of any Person (other than any of Climax and its Subsidiaries) under Treas. Reg. Section 1.1502-6 (or any similar provision of state, local, or foreign law), as a transferee or successor, by contract, or otherwise. 5.11.6. The unpaid Taxes of Climax and its Subsidiaries (A) did not, as of the Most Recent Fiscal Month End, exceed the reserve for Tax Liability (rather than any reserve for deferred Taxes established to reflect timing differences between book and Tax income) included in the Most Recent Balance Sheet and (B) do not exceed that reserve as adjusted for the passage of time through the Closing Date in accordance with the past custom and practice of Climax and its Subsidiaries in filing their Tax Returns. 5.12. Real Property. 21 22 5.12.1. Section 5.12.1 of the Disclosure Schedule lists and describes briefly all real property that any of Climax and its Subsidiaries owns. With respect to each such parcel of owned real property, except as described by Section 5.12.1 of the Disclosure Schedule: 5.12.1.1. the identified owner has good and marketable title to the parcel of real property, free and clear of any Security Interest, easement, covenant, or other restriction, except for installments of special assessments not yet delinquent and recorded easements, covenants, and other restrictions which do not materially impair the current use, occupancy, or value, or the marketability of title, of the property subject thereto; 5.12.1.2. there are no pending or, to the Knowledge of Sellers, threatened condemnation proceedings, lawsuits, or administrative actions relating to the property or other matters affecting adversely the current use, occupancy, or value thereof; 5.12.1.3. the legal description for the parcel contained in the deed thereof describes such parcel fully and adequately, the buildings and improvements are located within the boundary lines of the described parcels of land, are not in violation of applicable setback requirements, zoning laws, and ordinances (and none of the properties or buildings or improvements thereon are subject to "permitted non-conforming use" or "permitted non-conforming structure" classifications), and do not encroach on any easement which may burden the land, and the land does not serve any adjoining property for any purpose inconsistent with the use of the land, and the property is not located within any flood plain or subject to any similar type restriction for which any permits or licenses necessary to the current use thereof have not been obtained; 5.12.1.4. all facilities have received all approvals of governmental authorities (including licenses and permits) required in connection with the ownership or current operation thereof and have been operated and maintained in accordance with applicable laws, rules, and regulations; 5.12.1.5. there are no leases, subleases, licenses, concessions, or other agreements, written or oral, granting to any party or parties the right of use or occupancy of any portion of the parcel of real property; 22 23 5.12.1.6. there are no outstanding options or rights of first refusal to purchase the parcel of real property, or any portion thereof or interest therein; 5.12.1.7. there are no parties (other than Climax and its subsidiaries) in possession of the parcel of real property, other than tenants under any leases disclosed in Section 5.12.1 of the Disclosure Schedule who are in possession of space to which they are entitled; 5.12.1.8. all facilities located on the parcel of real property are supplied with utilities and other services necessary for the operation of such facilities as presently used, including gas, electricity, water, telephone, sanitary sewer, and storm sewer, all of which services are adequate in all material respects in accordance with all applicable laws, ordinances, rules, and regulations and are provided via public roads or via permanent, irrevocable, appurtenant easements benefitting the parcel of real property, unless the lack of such access will not have a material adverse effect; and 5.12.1.9. except with respect to any unimproved land, each parcel of real property abuts on and has direct vehicular access to a public road, or has access to a public road via a permanent, irrevocable, appurtenant easement benefitting the parcel of real property, and access to the property is provided by paved public right-of-way with adequate curb cuts available. 5.12.2. Section 5.12.2 of the Disclosure Schedule lists and describes briefly all real property leased or subleased to any of Climax and its Subsidiaries. Section 5.12.2 of the Disclosure Schedule also identifies the leased or subleased properties for which title insurance policies are to be procured in accordance with Section 6.8.2 below. The Sellers have delivered to Team correct and complete copies of the leases and subleases listed in Section 5.12.2 of the Disclosure Schedule (as amended to date). With respect to each lease and sublease listed in Section 5.12.2 of the Disclosure Schedule, except as disclosed in Section 5.12.2 by the Disclosure Schedule: 5.12.2.1. the lease or sublease is legal, valid, binding, enforceable, and in full force and effect enforceable in accordance with its terms and conditions, except as enforceability may be limited or affected by applicable bankruptcy, insolvency, reorganization or other laws of general application 23 24 relating to or affecting the rights of creditors and except as enforceability may be limited by rules of law governing specific performance, injunctive relief or other equitable remedies; 5.12.2.2. the lease or sublease will continue to be legal, valid, binding, enforceable, and in full force and effect on identical terms following the consummation of the transactions contemplated hereby enforceable in accordance with its terms and conditions, except as enforceability may be limited or affected by applicable bankruptcy, insolvency, reorganization or other laws of general application relating to or affecting the rights of creditors and except as enforceability may be limited by rules of law governing specific performance, injunctive relief or other equitable remedies; 5.12.2.3. none of Climax and its Subsidiaries nor, to the Sellers' Knowledge, any other party to the lease or sublease is in breach or default, and no event has occurred which, with notice or lapse of time, would constitute a breach or default or permit termination, modification, or acceleration thereunder; 5.12.2.4. no party to the lease or sublease has repudiated any material provision thereof; 5.12.2.5. there are no disputes, oral agreements, or forbearance programs in effect as to the lease or sublease; 5.12.2.6. with respect to each sublease, the representations and warranties set forth in subsections 5.12.2.1 through 5.12.2.5 above are true and correct with respect to the underlying lease; 5.12.2.7. neither Climax nor any Subsidiary has assigned, transferred, conveyed, mortgaged, deeded in trust, or encumbered any interest in the leasehold or subleasehold; 5.12.2.8. all facilities leased or subleased thereunder have received all approvals of governmental authorities (including licenses and permits) required in connection with the operation thereof and have been operated and maintained in all material respects in accordance with applicable laws, rules, and regulations; 24 25 5.12.2.9. all facilities leased or subleased thereunder are supplied with utilities and other services necessary for the operation of said facilities as presently used; and 5.12.2.10. the owner of the facility leased or subleased has good and marketable title to the parcel of real property, free and clear of any Security Interest, easement, covenant, or other restriction, except for installments of special easements not yet delinquent and recorded easements, covenants, and other restrictions which do not impair the current use, occupancy, or value, or the marketability of title, of the property subject thereto. 5.13. Intellectual Property. Except as otherwise disclosed by Section 5.13 of the Disclosure Schedule, the following statement are correct and complete: 5.13.1. Climax and its Subsidiaries own or have the right to use pursuant to license, sublicense, agreement, or permission all Intellectual Property necessary for the operation of the businesses of Climax and its Subsidiaries as presently conducted and as presently proposed to be conducted. Each item of Intellectual Property owned or used by any of Climax and its Subsidiaries immediately prior to the Closing hereunder will be owned or available for use by Climax or the Subsidiary on substantially identical terms and conditions immediately subsequent to the Closing hereunder. Each of Climax and its Subsidiaries has taken all necessary action to maintain and protect each item of Intellectual Property that it owns or uses. 5.13.2. Neither Climax nor any Subsidiary has interfered with, infringed upon, misappropriated, or otherwise come into conflict with any Intellectual Property rights of third parties, and none of the Sellers and the directors and officers (and employees with responsibility for Intellectual Property matters) of Climax and its Subsidiaries has ever received any charge, complaint, claim, demand, or notice alleging any such interference, infringement, misappropriation, or violation (including any claim that any of Climax and its Subsidiaries must license or refrain from using any Intellectual Property rights of any third party). To the Knowledge of any of the Sellers, no third party has interfered with, infringed upon, misappropriated, or otherwise come into conflict with any Intellectual Property rights of any of Climax and its Subsidiaries. 25 26 5.13.3. Section 5.13.3 of the Disclosure Schedule identifies each patent or registration which has been issued to any of Climax and its Subsidiaries with respect to any of its Intellectual Property, identifies each pending patent application or application for registration which any of Climax and its Subsidiaries has made with respect to any of its Intellectual Property, and identifies each license, agreement, or other permission which any of Climax and its Subsidiaries has granted to any third party with respect to any of its Intellectual Property (together with any exceptions). The Sellers have delivered to Team correct and complete copies of all such patents, registrations, applications, licenses, agreements, and permissions (as amended to date) and have made available to Team correct and complete copies of all other written documentation evidencing ownership and prosecution (if applicable) of each such item. Section 5.13.3 of the Disclosure Schedule also identifies each trade name or unregistered trademark used by any of Climax and its Subsidiaries in connection with any of its businesses. With respect to each item of Intellectual Property required to be identified in Section 5.13.3 of the Disclosure Schedule: 5.13.3.1. Climax and its Subsidiaries possess all right, title, and interest in and to the item, free and clear of any Security Interest, license, or other restriction; 5.13.3.2. the item is not subject to any outstanding injunction, judgment, order, decree, ruling, or charge; 5.13.3.3. no action, suit, proceeding, hearing, complaint, claim, or demand is pending or to the Sellers' Knowledge is threatened which challenges the legality, validity, enforceability, use, or ownership of the item; and 5.13.3.4. none of Climax and its Subsidiaries has ever agreed to indemnify any Person for or against any interference, infringement, misappropriation, or other conflict with respect to the item. 5.13.4. Section 5.13.4 of the Disclosure Schedule identifies each item of Intellectual Property that any third party owns and that any of Climax and its Subsidiaries uses pursuant to license, sublicense, agreement, or permission. The Sellers have delivered to Team correct and complete copies of all such licenses, sublicenses, agreements, and permissions (as amended to date). With respect to each item of 26 27 Intellectual Property required to be identified in Section 5.13.4 of the Disclosure Schedule: 5.13.4.1. the license, sublicense, agreement, or permission covering the item is legal, valid, binding, enforceable, and in full force and effect enforceable in accordance with its terms and conditions, except as enforceability may be limited or affected by applicable bankruptcy, insolvency, reorganization or other laws of general application relating to or affecting the rights of creditors and except as enforceability may be limited by rules of law governing specific performance, injunctive relief or other equitable remedies; 5.13.4.2. the license, sublicense, agreement, or permission will continue to be legal, valid, binding, enforceable, and in full force and effect on identical terms following the Closing enforceable in accordance with its terms and conditions, except as enforceability may be limited or affected by applicable bankruptcy, insolvency, reorganization or other laws of general application relating to or affecting the rights of creditors and except as enforceability may be limited by rules of law governing specific performance, injunctive relief or other equitable remedies; 5.13.4.3. none of Climax and its Subsidiaries nor, to the Sellers' Knowledge, any other party to the license, sublicense, agreement, or permission is in breach or default, and no event has occurred which with notice or lapse of time would constitute a breach or default or permit termination, modification, or acceleration thereunder; 5.13.4.4. no party to the license, sublicense, agreement, or permission has repudiated any material provision thereof; 5.13.4.5. with respect to each sublicense, the representations and warranties set forth in subsections 5.13.4.1 through 5.13.4.4 above are true and correct with respect to the underlying license; 5.13.4.6. the underlying item of Intellectual Property is not subject to any outstanding injunction, judgment, order, decree, ruling, or charge; 5.13.4.7. no action, suit, proceeding, hearing, complaint, claim, or 27 28 demand is pending or to the Sellers' Knowledge is threatened which challenges the legality, validity, or enforceability of the underlying item of Intellectual Property; and 5.13.4.8. neither Climax nor any Subsidiary has granted any sublicense or similar right with respect to the license, sublicense, agreement, or permission. 5.13.5. The Sellers have no Knowledge that Climax or any Subsidiary will interfere with, infringe upon, misappropriate, or otherwise come into conflict with, any Intellectual Property rights of third parties as a result of the continued operation of its business as presently conducted. 5.13.6. None of the Sellers has any Knowledge of any new products, inventions, procedures, or methods of manufacturing or processing that any competitors or other third parties have developed which reasonably could be expected to supersede or make obsolete any product or process of any of Climax and its Subsidiaries. 5.14. Tangible Assets. Climax and its Subsidiaries own or lease all buildings, machinery, equipment, and other tangible assets necessary for the conduct of their businesses as presently conducted. Each such tangible asset is free from defects (patent and latent), has been maintained in accordance with normal industry practice, is in good operating condition and repair (subject to normal wear and tear), and is suitable for the purposes for which it presently is used. 5.15. Inventory. The inventory of Climax and its Subsidiaries consists of raw materials and supplies, manufactured and purchased parts, goods in process, and finished goods, substantially all of which is merchantable and fit for the purpose for which it was procured or manufactured, and is carried at its net realizable value in accordance with GAAP, after deducting the LIFO reserve included in the Most Recent Balance Sheet as adjusted for the passage of time through the Closing Date in accordance with the past custom and practice of Climax and its Subsidiaries. 5.16. Contracts. Section 5.16 of the Disclosure Schedule lists the following contracts and other agreements to which any of Climax and its Subsidiaries is a party: 5.16.1. any agreement (or group of related agreements) for the lease of personal property to or from any Person providing for lease payments in excess of $10,000 per annum; 28 29 5.16.2. any agreement (or group of related agreements) for the purchase or sale of raw materials, commodities, supplies, products, or other personal property, or for the furnishing or receipt of services, the performance of which will extend over a period of more than one year, result in a loss to any of Climax and its Subsidiaries, or involve consideration in excess of $10,000; 5.16.3. any agreement concerning a partnership, joint venture or limited liability company; 5.16.4. any agreement (or group of related agreements) under which it has created, incurred, assumed, or guaranteed any indebtedness for borrowed money, or any capitalized lease obligation, in excess of $10,000 or under which it has imposed a Security Interest on any of its assets, tangible or intangible; 5.16.5. any agreement concerning confidentiality or noncompetition; 5.16.6. any agreement with any of the Sellers and their Affiliates (other than Climax and its Subsidiaries); 5.16.7. any profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance, or other plan or arrangement for the benefit of its current or former directors, officers, and employees; 5.16.8. any collective bargaining agreement; 5.16.9. any agreement for the employment of any individual on a full-time, part-time, consulting, or other basis providing annual compensation in excess of $50,000 or providing severance benefits; 5.16.10. any agreement under which it has advanced or loaned any amount to any of its directors, officers, and employees outside the Ordinary Course of Business; 5.16.11. any agreement under which the consequences of a default or termination could have an adverse effect on the business, financial condition, operations, results of operations, or future prospects of any of Climax and its Subsidiaries; or 5.16.12. any other agreement (or group of related agreements) the 29 30 performance of which involves consideration in excess of $10,000. The Sellers have delivered to Team a correct and complete copy of each written agreement listed in Section 5.16 of the Disclosure Schedule (as amended to date) and a written summary setting forth the terms and conditions of each oral agreement referred to in Section 5.16 of the Disclosure Schedule. With respect to each such agreement, except as disclosed by Section 5.16 of the Disclosure Schedule: (A) the agreement is legal, valid, binding, and in full force and effect, enforceable in accordance with its terms and conditions, except as enforceability may be limited or affected by applicable bankruptcy, insolvency, reorganization or other laws of general application relating to or affecting the rights of creditors and except as enforceability may be limited by rules of law governing specific performance, injunctive relief or other equitable remedies; (B) the agreement will continue to be legal, valid, binding, and in full force and effect on identical terms following the consummation of the transactions contemplated hereby, enforceable in accordance with its terms and conditions, except as enforceability may be limited or affected by applicable bankruptcy, insolvency, reorganization or other laws of general application relating to or affecting the rights of creditors and except as enforceability may be limited by rules of law governing specific performance, injunctive relief or other equitable remedies; (C) none of Climax and its Subsidiaries, nor to the Sellers' Knowledge, any other party is in breach or default, and no event has occurred which with notice or lapse of time would constitute a breach or default, or permit termination, modification, or acceleration, under the agreement; and (D) no party has repudiated any provision of the agreement. 5.17. Notes and Accounts Receivable. All notes and accounts receivable of Climax and its Subsidiaries are reflected properly on their books and records, are valid receivables subject to no setoffs or counterclaims, are current and collectible, and will be collected in accordance with their terms at their recorded amounts, subject only to the reserve for bad debts included in the Most Recent Balance Sheet as adjusted for the passage of time through the Closing Date in accordance with the past custom and practice of Climax and its Subsidiaries. 5.18. Powers of Attorney. There are no outstanding powers of attorney executed on behalf of any of Climax and its Subsidiaries, other than with respect to financing arrangements. 5.19. Insurance. Section 5.19 of the Disclosure Schedule sets forth the following information with respect to each insurance policy (including policies providing property, casualty, liability, and workers' compensation coverage and bond and surety arrangements) to which any of Climax and its Subsidiaries has been a party, a named insured, or otherwise the beneficiary of coverage at any time within the past 10 years: 30 31 5.19.1. the name, address, and telephone number of the agent; 5.19.2. the name of the insurer, the name of the policyholder, and the name of each covered insured; 5.19.3. the policy number and the period of coverage; 5.19.4. the scope (including an indication of whether the coverage was on a claims made, occurrence, or other basis) and amount (including a description of how deductibles and ceilings are calculated and operate) of coverage; and 5.19.5. a description of any retroactive premium adjustments or other loss-sharing arrangements. With respect to each such insurance policy, except as disclosed by Section 5.19 of the Disclosure Schedule: (A) the policy is legal, valid, binding, enforceable, and in full force and effect; (B) the policy will continue to be legal, valid, binding, enforceable, and in full force and effect on identical terms following the consummation of the transactions contemplated hereby; (C) none of Climax and its Subsidiaries nor, to the Sellers' Knowledge, any other party to the policy is in breach or default (including with respect to the payment of premiums or the giving of notices), and no event has occurred which, with notice or the lapse of time, would constitute such a breach or default, or permit termination, modification, or acceleration, under the policy; and (D) no party to the policy has repudiated any material provision thereof. Each of Climax and its Subsidiaries has been covered during the past 10 years by insurance in scope and amount customary and reasonable for the businesses in which it has engaged during the aforementioned period. Section 5.19 of the Disclosure Schedule describes any self-insurance arrangements affecting any of Climax and its Subsidiaries. 5.20. Litigation. Section 5.20 of the Disclosure Schedule sets forth each instance in which any of Climax and its Subsidiaries (i) is subject to any outstanding injunction, judgment, order, decree, or ruling, or (ii) is a party or, to the Knowledge of Sellers, is threatened to be made a party to any action, suit, proceeding, or hearing, in or before any court or quasi-judicial or administrative agency of any federal, state, local, or foreign jurisdiction or before any arbitrator. None of the actions, suits, proceedings, hearings, and investigations set forth in Section 5.20 of the Disclosure Schedule could result in any adverse change in the business, financial condition, operations, results of operations, or future prospects of any of Climax and its Subsidiaries. 31 32 5.21. Product Warranty. Each product manufactured, sold, leased, or delivered by any of Climax and its Subsidiaries has been in conformity in all material respects with all applicable contractual commitments and all express and implied warranties, and none of Climax and its Subsidiaries has any Liability for replacement or repair thereof or other damages in connection therewith, subject only to the reserve for product warranty claims included in the Most Recent Balance Sheet as adjusted for the passage of time through the Closing Date in accordance with the past custom and practice of Climax and its Subsidiaries. No product manufactured, sold, leased, or delivered by any of Climax and its Subsidiaries is subject to any guaranty, warranty, or other indemnity beyond the applicable standard terms and conditions of sale or lease. 5.22. Product Liability. None of Climax and its Subsidiaries has any Liability arising out of any injury to individuals or property as a result of the ownership, possession, or use of any product manufactured, sold, leased, or delivered by any of Climax and its Subsidiaries. 5.23. Employees. Sellers have no Knowledge that any executive, key employee, or group of employees has any plans to terminate employment with any of Climax and its Subsidiaries. Neither Climax nor any Subsidiary is a party to or bound by any collective bargaining agreement, nor has any of them experienced any strikes, grievances, claims of unfair labor practices, or other collective bargaining disputes. Neither Climax nor any Subsidiary has committed any unfair labor practice. None of the Sellers has any Knowledge of any organizational effort presently being made or threatened by or on behalf of any labor union with respect to employees of any of Climax and its Subsidiaries. 5.24. Employee Benefits. 5.24.1. Section 5.24 of the Disclosure Schedule lists each Employee Benefit Plan that Climax and its Subsidiaries maintain and/or to which Climax and any Subsidiary contributes. 5.24.1.1. Each such Employee Benefit Plan (and each related trust, insurance contract, or fund) complies in form and in operation in all material respects with the applicable requirements of ERISA, the Code, and other applicable laws. 5.24.1.2. All required reports and descriptions (including Form 5500 Annual Reports, Summary Annual Reports, PBGC-1's, and Summary Plan 32 33 Descriptions) have been filed or distributed appropriately with respect to each such Employee Benefit Plan. The requirements of Part 6 of Subtitle B of Title I of ERISA and of Code Sec. 4980B have been met with respect to each such Employee Benefit Plan which is an Employee Welfare Benefit Plan. 5.24.1.3. All contributions (including all employer contributions and employee salary reduction contributions) which are due have been paid to each such Employee Benefit Plan which is an Employee Pension Benefit Plan and all contributions for any period ending on or before the Closing Date which are not yet due have been paid to each such Employee Pension Benefit Plan or accrued in accordance with the past custom and practice of Climax and its Subsidiaries. All premiums or other payments for all periods ending on or before the Closing Date have been paid with respect to each such Employee Benefit Plan which is an Employee Welfare Benefit Plan. 5.24.1.4. Each such Employee Benefit Plan which is an Employee Pension Benefit Plan meets the requirements of a "qualified plan" under Code Sec. 401(a) and has received a favorable determination letter from the Internal Revenue Service. 5.24.1.5. The market value of assets under each such Employee Benefit Plan which is an Employee Pension Benefit Plan (other than any Multiemployer Plan) equals or exceeds the present value of all vested and nonvested Liabilities thereunder determined in accordance with PBGC methods, factors, and assumptions applicable to an Employee Pension Benefit Plan terminating on the date for determination. 5.24.1.6. The Sellers have delivered to Team correct and complete copies of the plan documents and summary plan descriptions, the most recent determination letter received from the Internal Revenue Service, the most recent Form 5500 Annual Report, and all related trust agreements, insurance contracts, and other funding agreements which implement each such Employee Benefit Plan. 5.24.2. With respect to each Employee Benefit Plan that any of Climax, its Subsidiaries, and the Controlled Group of Corporations which includes Climax and its Subsidiaries maintains or ever has maintained or to which any of them contributes, ever 33 34 has contributed, or ever has been required to contribute: 5.24.2.1. No such Employee Benefit Plan which is an Employee Pension Benefit Plan (other than any Multiemployer Plan) has been completely or partially terminated or been the subject of a Reportable Event as to which notices would be required to be filed with the PBGC. No proceeding by the PBGC to terminate any such Employee Pension Benefit Plan (other than any Multiemployer Plan) has been instituted or threatened. 5.24.2.2. There have been no non-exempt Prohibited Transactions with respect to any such Employee Benefit Plan. No Fiduciary has any Liability for breach of fiduciary duty or any other failure to act or comply in connection with the administration or investment of the assets of any such Employee Benefit Plan. No action, suit, proceeding, hearing, or investigation with respect to the administration or the investment of the assets of any such Employee Benefit Plan (other than routine claims for benefits) is pending or threatened. None of the Sellers has any Knowledge of any Basis for any such action, suit, proceeding, hearing, or investigation. 5.24.2.3. Neither Climax nor any Subsidiary has incurred, and none of the Sellers has any reason to expect that any of Climax and its Subsidiaries will incur, any Liability to the PBGC (other than PBGC premium payments) or otherwise under Title IV of ERISA (including any withdrawal Liability) or under the Code with respect to any such Employee Benefit Plan which is an Employee Pension Benefit Plan. 5.24.3. Neither Climax nor any Subsidiary, nor the other members of the Controlled Group of Corporations that includes Climax and its Subsidiaries contributes to, ever has contributed to, or ever has been required to contribute to any Multiemployer Plan or has any Liability (including withdrawal Liability) under any Multiemployer Plan. 5.24.4. Neither Climax nor any Subsidiary maintains or ever has maintained or contributes, ever has contributed, or ever has been required to contribute to any Employee Welfare Benefit Plan providing medical, health, or life insurance or other welfare-type benefits for current or future retired or terminated employees, their spouses, or their dependents (other than in accordance with Code Sec. 4980B). 34 35 5.25. Guaranties. Neither Climax nor any Subsidiary is a guarantor or otherwise is liable for any Liability or obligation (including indebtedness) of any other Person. 5.26. Environment, Health, and Safety. 5.26.1. Climax, each Subsidiary, and their respective predecessors and Affiliates have each complied with all Environmental, Health, and Safety Laws, and no action, suit, proceeding, hearing, complaint, claim, demand, or notice has been filed against any of them alleging any failure so to comply. Without limiting the generality of the preceding sentence, Climax, each Subsidiary, and their respective predecessors and Affiliates have obtained and been in compliance with all of the terms and conditions of all material permits, licenses, and other authorizations which are required under, and each has complied with all other limitations, restrictions, conditions, standards, prohibitions, requirements, obligations, schedules, and timetables which are contained in, all Environmental, Health, and Safety Laws. 5.26.2. Neither Climax nor any Subsidiary nor their respective predecessors or Affiliates has any Liability for nor has handled or disposed of any substance, arranged for the disposal of any substance, exposed any employee or other individual to any substance or condition, or owned or operated any property or facility in any manner that could form the Basis for any present or future action, suit, proceeding, hearing, investigation, charge, complaint, claim, or demand against any of Climax and its Subsidiaries giving rise to any Liability) for damage to any site, location, or body of water (surface or subsurface), for any illness of or personal injury to any employee or other individual, or for any reason under any Environmental, Health, and Safety Law. 5.27. Certain Business Relationships with Climax and Its Subsidiaries. Except as disclosed by Section 5.27 of the Disclosure Schedule, none of the Sellers and/or their Affiliates has been involved in any material business arrangement or relationship with Climax and/or any Subsidiary within the past 12 months, and none own any material asset, tangible or intangible, which is used in the business of Climax or any Subsidiary. 5.28. Disclosure. The representations and warranties contained in this Section 5 do not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements and information contained in this Section 5 not misleading. 6. Pre-Closing Covenants. The Parties agree as follows with respect to the period between 35 36 the execution of this Agreement and the Closing. 6.1. General. Each of the Parties will use his or its reasonable best efforts to take all action and to do all things necessary, proper, or advisable in order to consummate and make effective the transactions contemplated by this Agreement (including satisfaction, but not waiver, of the closing conditions set forth in Section 8 below). 6.2. Notices and Consents. The Benhams will cause Climax and any Subsidiary to give any required notices to third parties, and will cause Climax and any Subsidiary to use its reasonable best efforts to obtain any third-party consents, that Team reasonably may request in connection with the matters referred to in this Agreement. Each of the Parties will (and the Benhams will cause each of Climax and the Subsidiaries to) give any notices to, make any filings with, and use its reasonable best efforts to obtain any required authorizations, consents, and approvals of governments and governmental agencies to the transaction contemplated by this Agreement. 6.3. Operation of Business. The Benhams will not cause or permit Climax and its Subsidiaries to engage in any practice, take any action, or enter into any transaction outside the Ordinary Course of Business. Without limiting the generality of the foregoing, the Benhams will not cause or permit Climax and its Subsidiaries to (i) declare, set aside, or pay any dividend or make any distribution with respect to its capital stock or redeem, purchase, or otherwise acquire any of its capital stock, or (ii) otherwise engage in any practice, take any action, or enter into any transaction of the sort described in Section 5.8 above. 6.4. Preservation of Business. The Benhams will cause Climax and its Subsidiaries to each keep its business and properties substantially intact, including its present operations, physical facilities, working conditions, and relationships with lessors, licensors, suppliers, customers, and employees. 6.5. Full Access. The Benhams cause Climax and its Subsidiaries to permit, representatives of Team to have full access at all reasonable times, and in a manner so as not to interfere with the normal business operations of Climax and its Subsidiaries, to all premises, properties, personnel, books, records (including Tax records), contracts, and documents of or pertaining to Climax and its Subsidiaries. 6.6. Notice of Developments. The Benhams and the ESOP will give prompt written notice to Team of any material adverse development causing a breach of any of their respective 36 37 representations and warranties in Section 3 and/or Section 5 above. Team will give prompt written notice to the Sellers of any material adverse development causing a breach of any of their representations and warranties in Section 3 above. No disclosure by any Party which is made after the Delivery Date, shall be deemed to amend or supplement the Disclosure Schedule or to prevent or cure any misrepresentation, breach of warranty, or breach of covenant unless such misrepresentation and/or breach is waived in writing by the Party to whom such disclosure is made. 6.7. Exclusivity. None of the Sellers will (and the Benhams will not cause or permit Climax and its Subsidiaries to): (i) solicit, initiate, or encourage the submission of any proposal or offer from any Person relating to the acquisition of any capital stock or other voting securities, or any substantial portion of the assets of, any of Climax and its Subsidiaries (including any acquisition structured as a merger, consolidation, or share exchange) or (ii) participate in any discussions or negotiations regarding, furnish any information with respect to, assist or participate in, or facilitate in any other manner any effort or attempt by any Person to do or seek any of the foregoing. None of the Sellers will vote their Climax Shares in favor of any such acquisition structured as a merger, consolidation, or share exchange. Each Seller will notify Team immediately if any Person makes any proposal, offer, inquiry, or contact to them or it with respect to any of the foregoing. 6.8. Audit. Sellers shall, as promptly as practicable after the date of this Agreement, cause Climax and the Subsidiaries to cause an audit (the "Audit") to be conducted in accordance with generally accepted auditing standards, of the books, records, and financial statements of Climax and the Subsidiaries as of and for each of the fiscal years ended December 31, 1996 and December 31, 1997. The Audited Financial Statements (hereinafter defined) shall be prepared with respect to such two years in accordance with the accounting policies and procedures customarily followed by Climax and its Subsidiaries, so long as such policies and procedures are in accordance with GAAP in all material respects. As used in this Agreement, "Audited Financial Statements" shall mean for Climax and the Subsidiaries (a) an audited consolidated balance sheet as of December 31, 1996 and 1997, (b) an audited consolidated statement of operations and cash flows as of the end of and for the fiscal years ended December 31, 1996 and December 31, 1997 and (c) an audited consolidated statement of changes in stockholders equity as of the end of and for the fiscal years ended December 31, 1996 and December 31, 1997. The Audit will be conducted by Maginnis & Carey, LLP (the "Climax Auditor"), a firm of independent certified public accountants which has previously been engaged by Climax and which is located in Portland, Oregon. The Seller shall cause the Climax Auditor to provide Team with the Audited Financial Statements and with its written report ("Audit Report") with 37 38 respect to the Audit and the Audited Financial Statements promptly after the completion thereof. The Seller shall also cause the Climax Auditor to consent to the use of the Audited Financial Statements by Team in connection with filings with appropriate governmental authorities, including the SEC. The fees and expenses of such accounting firm shall be paid by Team. The Sellers agree to cause the officers, directors, employees, accountants and attorneys of Climax and the Subsidiaries to cooperate with Team and its respective officers, accountants and other representatives at all reasonable times and in all material respects during the conduct of the Audit. 6.9. ESOP Contribution. Immediately prior to the Closing, the Benhams shall cause Climax to contribute $100,000 to the ESOP (the "ESOP Contribution"), which shall be allocated as an employer contribution for 1998 in addition to any amounts otherwise contributed and allocated for 1998. 6.10. Alsana Bonus. Immediately prior to the Closing, the Benhams shall cause Climax to pay to Terry W. Weigel and Phillip R. Edin a total bonus of $50,000 each (the "Alsana Bonus"). 7. Post-Closing Covenants. The Parties agree as follows with respect to the period following the Closing. 7.1. General. In case at any time after the Closing any further action is necessary to carry out the purposes of this Agreement, each of the Parties will take such further action (including the execution and delivery of such further instruments and documents) as any other Party reasonably may request, all at the sole cost and expense of the requesting Party (unless the requesting Party is entitled to indemnification therefor under Section 9 below). The Sellers acknowledge and agree that from and after the Closing Team will be entitled to possession of all documents, books, records (including Tax records), agreements, and financial data of any sort relating to Climax and its Subsidiaries; provided, however, nothing herein is intended to waive the attorney-client privilege of any of Sellers, and from and after the Closing Date, neither Team, Climax, or any of their respective Affiliates, directly or indirectly, shall have access to or scrutiny over any of the books, files, documents and records, of any of the Sellers' attorneys, accountants, or advisers; provided further, however, that the Benhams agree to segregate, and the Benhams agree to cause their counsel to segregate, the books, files, documents and records of the Benhams in the Benhams' and their counsel's possession from the books, files, documents and records of Climax and its Subsidiaries in the Benhams' and their counsel's possession. 38 39 7.2. Litigation Support. In the event and for so long as any Party actively is contesting or defending against any action, suit, proceeding, hearing, investigation, charge, complaint, claim, or demand in connection with (i) any transaction contemplated under this Agreement or (ii) any fact, situation, circumstance, status, condition, activity, practice, plan, occurrence, event, incident, action, failure to act, or transaction on or prior to the Closing Date involving any of Climax and its Subsidiaries, each of the other Parties will cooperate with him or it and his or its counsel in the contest or defense, make available their personnel, and provide such testimony and access to their books and records as shall be necessary in connection with the contest or defense, all at the sole cost and expense of the contesting or defending Party (unless the contesting or defending Party is entitled to indemnification therefor under Section 9 below). 7.3. Transition. None of the Sellers will take any action that is designed or intended to have the effect of discouraging any lessor, licensor, customer, supplier, or other business associate of any of Climax and its subsidiaries from maintaining the same business relationships with Climax and its Subsidiaries after the Closing as it maintained with Climax and its Subsidiaries prior to the Closing. Each of the Sellers will refer all customer inquiries relating to the businesses of Climax and its Subsidiaries to Team from and after the Closing. 7.4. Confidentiality. Each of the Sellers will treat and hold as such all of the Confidential Information, refrain from using any of the Confidential Information except in connection with this Agreement, and deliver promptly to Team or destroy, at the request and option of Team, all tangible embodiments (and all copies) of the Confidential Information which are in his or its possession. In the event that any of the Sellers is requested or required (by oral question or request for information or documents in any legal proceeding, interrogatory, subpoena, civil investigative demand, or similar process) to disclose any Confidential Information, that Seller will notify Team promptly of the request or requirement so that Team may seek an appropriate protective order or waive compliance with the provisions of this Section 7.4. If, in the absence of a protective order or the receipt of a waiver hereunder, any of the Sellers is, on the advice of counsel, compelled to disclose any Confidential Information to any tribunal or else stand liable for contempt, that Seller may disclose the Confidential Information to the tribunal; provided, however, that the disclosing Seller shall use his or its reasonable best efforts to obtain, at the reasonable request of Team, an order or other assurance that confidential treatment will be accorded to such portion of the Confidential Information required to be disclosed as Team shall designate. The foregoing provisions shall not apply to any Confidential Information which is generally available to the public immediately prior to the time of disclosure. 7.5. Team Stock. Each certificate for shares of Team Stock to be issued hereunder will 39 40 be imprinted with a legend substantially in the following form: The shares represented by this certificate have not been registered under the Securities Act of 1933 ("Act") or any other securities statute, and no reoffer, sale, transfer, pledge or other disposition thereof may be made unless the shares are registered under the Act and any other applicable statute, or, in the written opinion of counsel reasonably satisfactory to the issuer, such transaction will not require registration under the Act or any other securities statute. Full statements of the designations, preferences, limitations and relative rights of the shares of each class of authorized stock of Team, the variations in the relative rights and preferences of the shares of any series of Preferred Stock so far as the same have been fixed and determined, and the authority of the Board of Directors to fix and determine the relative rights and preferences each series thereof, and of the denial of the preemptive rights of shareholders to acquire unissued or treasury shares of Team, are set forth in the Articles of Incorporation of the Team, as amended, which are on file in the Office of the Secretary of State of the State of Texas, copies of which may be obtained without charge on written request to Team at its principal place of business or registered office. 7.6. [Intentionally Deleted.] 7.7. June 30, 1998 Audited Balance Sheet. 7.7.1 As promptly as practical after the Closing Date, Team shall cause a Consolidated Balance Sheet as of June 30, 1998 to be prepared for Climax and its Subsidiaries and shall cause Deloitte & Touche, LLP ("Team's Auditor") to audit the June 30, 1998 Balance Sheet ("June 30, 1998 Audited Balance Sheet"). Team's Auditor shall conduct the audit of the June 30, 1998 Balance Sheet in accordance with generally accepted auditing standards. The June 30, 1998 Audited Balance Sheet shall be prepared and audited using the accounting policies and procedures customarily followed by Climax and its Subsidiaries, so long as such policies and procedures are in accordance with GAAP in all material respects. Team waives and releases any claim, and shall have no right to indemnification under Section 9 of this Agreement for a breach of the representation in Section 5.7 above concerning the Most Recent Balance Sheet, with respect to any item that results in an adjustment to the Purchase Price pursuant to this Section 40 41 7.7, to the extent of such adjustment. 7.7.2 Within 30 days after receipt of the June 30, 1998 Audited Balance Sheet, either Seller shall inform Team in writing that either the June 30, 1998 Audited Balance Sheet is acceptable or object to the June 30, 1998 Audited Balance Sheet in writing setting forth a specific description the Seller's objections (it being agreed that the failure of a Seller to deliver such written notice to Team within such 30-day period shall be deemed acceptance by such Seller). If a Seller objects as provided above and if Team does not agree with the Seller's objections, if any (it being agreed that the failure of Team to deliver written notice to the objecting Seller of Team's disagreement with the objecting Seller's objections within 15 days of Team's receipt of the objecting Seller's objections shall be deemed acceptance by Team), or such objections are not resolved on a mutually agreeable basis within 15 days after Team's receipt of the objecting Seller's objections, any such disagreement shall be promptly submitted to arbitration in accordance with Section 11.15 of this Agreement; provided, however, that the neutral arbitrator shall be an independent accounting firm agreed upon by Team's Auditor on behalf of Team and by Climax's Auditor on behalf of the objecting Seller(s) or, if they cannot agree on a single neutral arbitrator, a panel of three neutral arbitrators consisting of one neutral arbitrator selected by Team's Auditor and a second neutral arbitrator selected by Climax's Auditor, and a third neutral arbitrator selected by the first two neutral arbitrators in accordance with Section 11.15.4. A neutral arbitrator agreed upon or selected by Team's Auditor or by Climax's Auditor shall be a member in good standing of the American Institute of Certified Public Accountants SEC Practice Division. The arbitrators' determination shall be limited to whether the June 30, 1998 Audited Balance Sheet was prepared by Climax and audited by the Team Auditor in accordance with instructions set forth in this Section 7.7. Team shall bear one-half of the fees, costs and expenses arising under and relating to such arbitration and each objecting Seller shall bear a proportion of the other one-half of such fees, costs and expenses determined by dividing the objecting Seller's number of Climax Shares by the total number of Climax Shares of all objecting Sellers. Team and each objecting Seller shall bear the fees, costs and expenses of his, her or its own accountants and representatives. Upon resolution of any and all disputes concerning the June 30, 1998 Audited Balance Sheet, the determination of the June 30, 1998 Audited Balance Sheet shall be deemed to be final. 7.7.3 In the event that the Shareholders' Equity, as reflected by the June 30, 1998 Audited Balance Sheet of Climax and its Subsidiaries, is less ("Net Worth Deficit") than the Shareholders' Equity as reflected by the Most Recent Balance Sheet (as adjusted in the manner set forth on Exhibit G), the Purchase Price for the Climax Shares, as provided in Section 2.2 of 41 42 this Agreement and as reflected by Exhibit A, shall be retroactively reduced by the amount of such Net Worth Deficit, and the amount of such Net Worth Deficit shall be recovered by Team out of the Escrowed Property in accordance with each Escrow Agreement. In the event that the Shareholders' Equity, as reflected by the June 30, 1998 Audited Balance Sheet of Climax and its Subsidiaries, is more ("Net Worth Surplus") than the Shareholders' Equity as reflected on the Most Recent Balance Sheet (as adjusted in the manner set forth on Exhibit G), the Purchase Price for the Climax Shares, as provided in Section 2.2 of this Agreement and as reflected by Exhibit A, shall be retroactively increased by the amount of the Net Worth Surplus, and within one business day, Team shall pay to the Sellers the amount of such difference in Cash by wire transfer of immediately available funds. The Net Worth Deficit shall be borne by each Seller in the ratio that the number of Climax Shares held by such Seller bears to all of the Climax Shares purchased hereunder by Team. Each Seller shall receive that portion of the Net Worth Surplus in accordance with the ratio of the number of Climax Shares held by such Seller bears to all of the Climax Shares purchased hereunder by Team. Notwithstanding anything to the contrary herein contained, the calculation of a Net Worth Deficit or Net Worth Surplus shall (i) add back losses at Alsana to the extent such losses are attributable to any inventory adjustments and goodwill write-off (other than normal amortizations) at Alsana; (ii) add back any other losses at Alsana up to an amount equal to $85,000; and (iii) recognize the effect of any losses not attributable to the sources described in (i) at Alsana in excess of the amount described in (ii) only for the purpose of offsetting the effect of gains shown on the income statement related to the consolidated June 30, 1998 Audited Balance Sheet from the operations of Climax, Climax Leasing, Inc., Climax International II, Inc., and Climax Rental Venture LLC (i.e., excluding all operations of Alsana) and not recognize such losses to the extent they contribute to a Net Worth Deficit after such gains are entirely offset. All adjustments contemplated in the immediately preceding sentence shall be made net of their tax effect. 8. Conditions to Obligation to Close. 8.1. Conditions to Obligation of Team. The obligation of Team to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions: 8.1.1. each of the Seller's representations and warranties set forth in Section 3.1 and Section 5 above shall be true and correct in all material respects at and as of the Closing Date; 8.1.2. each of the Sellers shall have performed and complied with all of his, hers or its covenants hereunder in all material respects through the Closing; 42 43 8.1.3. Climax and its Subsidiaries shall have procured all of the third party consents specified in Section 6.2 above; 8.1.4. no action, suit, or proceeding shall be pending or threatened before any court or quasi-judicial or administrative agency of any federal, state, local, or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (A) prevent consummation of any of the transactions contemplated by this Agreement, (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, (C) affect adversely the right of Team to own Climax Shares and to control Climax and its Subsidiaries, or (D) affect adversely the right of any of Climax and its Subsidiaries to own its assets and to operate its businesses (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect); 8.1.5. each of the Sellers shall have delivered to Team a certificate to the effect that each of the conditions specified above in Sections 8.1.1 through 8.1.4 is satisfied in all respects, as such conditions apply to such Seller; 8.1.6. the Parties, Climax, and its Subsidiaries shall have received all required authorizations, consents, and approvals, if any, of governments and governmental agencies; 8.1.7. the relevant parties (other than Climax) shall have entered into employment agreements in form and substance as set forth in Exhibits C-1 through C-3 attached hereto and the same shall be in full force and effect; 8.1.8. Team shall have received from counsel to the Benhams an opinion in form and substance as set forth in Exhibit D-1 attached hereto, addressed to Team, and dated as of the Closing Date; 8.1.9. Team shall have received from counsel to the ESOP an opinion in form and substance as set forth in Exhibit D-2 attached hereto, addressed to Team, and dated as of the Closing Date; 8.1.10. Team shall have received the resignations, effective as of the Closing, of each director and officer of Climax and its Subsidiaries other than those whom Team 43 44 shall have specified in writing prior to the Closing; 8.1.11. Each of the Sellers and the Escrow Agent shall have entered into a separate Escrow Agreement substantially in the form attached to this Agreement as Exhibit F (the "Escrow Agreement"); and 8.1.12. all actions to be taken by the Sellers in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby will be reasonably satisfactory in form and substance to Team. Team may waive any condition specified in this Section 8.1 if it executes a writing so stating at or prior to the Closing. 8.2. Conditions to Obligation of the Sellers. The obligation of the Sellers to consummate the transactions to be performed by them in connection with the Closing is subject to satisfaction of the following conditions: 8.2.1. the representations and warranties set forth in Section 3.2 above shall be true and correct in all material respects at and as of the Closing Date; 8.2.2. Team shall each have performed and complied with all of its covenants hereunder in all material respects through the Closing; 8.2.3. no action, suit, or proceeding shall be pending or threatened before any court or quasi-judicial or administrative agency of any federal, state, local, or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (A) prevent consummation of any of the transactions contemplated by this Agreement or (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect); 8.2.4. Team shall have delivered to the Sellers a certificate to the effect that each of the conditions specified above in Sections 8.2.1 through 8.2.3 is satisfied in all respects; 8.2.5. Team and the Escrow Agent shall have entered into a separate Escrow 44 45 Agreement with each of the Sellers; and 8.2.6. the Parties shall have received all required authorizations, consents, and approvals of governments and governmental agencies, if any; 8.2.7. as a condition solely with respect to the ESOP, Climax shall have contributed $100,000 to the ESOP; 8.2.8. as a condition solely with respect to the Benhams, Team shall have entered into the Employment Agreement in form and substance as set forth in Exhibits C-1 and the same shall be in full force and effect; 8.2.9. as a condition solely with respect to the Edin Trust, Team shall have entered into the Employment Agreement in form and substance as set forth in Exhibits C-2 and the same shall be in full force and effect; 8.2.10. as a condition solely with respect to Weigel, Team shall have entered into the Employment Agreement in form and substance as set forth in Exhibits C-3 and the same shall be in full force and effect; 8.2.11. the Sellers shall have received from counsel to Team an opinion in form and substance as set forth in Exhibit E attached hereto, addressed to the Sellers, and dated as of the Closing Date; and 8.2.12. all actions to be taken by Team in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby will be reasonably satisfactory in form and substance to the Sellers. The Sellers may waive any condition specified in this Section 8.2 if they execute a writing so stating at or prior to the Closing. 9. Remedies for Breaches of This Agreement. 9.1. Survival of Representations and Warranties. All of the representations and warranties of Team and the Benhams contained in this Agreement shall survive the Closing hereunder (unless the damaged Party had Knowledge of any misrepresentation or breach of the 45 46 representation or warranty at the time of Closing) and continue in full force and effect thereafter for a period of one year, except for the representations and warranties contained in Sections 3.1 and 3.2, Sections 5.1 through 5.6, and Section 5.11, which shall survive the Closing hereunder and continue in full force and effect thereafter, subject to any applicable statutes of limitations. All of the representations and warranties of the ESOP, the Edin Trust and Weigel contained in this Agreement, including those in Sections 3.1 and 5 above, shall survive the Closing hereunder (unless Team had Knowledge of any misrepresentation or breach of the representation or warranty at the time of Closing) and continue in full force and effect for a period of one year. 9.2. Indemnification Provisions for Benefit of Team. 9.2.1. In the event the Sellers breach (or in the event any third party alleges facts in writing that, if true, would mean the Sellers breached) any of their representations or warranties contained in Section 5 of this Agreement (other than representations or warranties relating to Alsana) or covenants contained in this Agreement, and provided that the particular representation, warranty, or covenant survives the Closing and that Team makes a written claim for indemnification against the Sellers pursuant to Section 11.7 below within the applicable survival period, then the Sellers agree to indemnify Team from and against the entirety of any Adverse Consequences Team may suffer through and after the date of the claim for indemnification resulting from, arising out of, relating to, in the nature of, or caused by the breach (or alleged breach); provided, however, that the Sellers shall not have any obligation to indemnify Team from and against any such Adverse Consequences, resulting from, arising out of, relating to, in the nature of, or caused by the breach of any representation or warranty of the Sellers contained in Section 5 of this Agreement (other than representations or warranties relating to Alsana), (i) less than $3,000 and (ii) until the aggregate of all such claims against the Sellers for Adverse Consequences in excess of $3,000 exceeds $100,000, and then only for the amount by which such Adverse Consequences resulting from, arising out of, relating to, in the nature of, or caused by the breach of any representation, warranty, or covenant of the Sellers contained in Section 5 of this Agreement (other than representations and warranties relating to Alsana) exceeds $100,000. 9.2.2. In the event the Sellers breach (or in the event any third party alleges facts in writing that, if true, would mean the Sellers breached) any of their representations or warranties contained in Section 5 of this Agreement relating to Alsana, and provided that the particular representation or warranty survives the Closing and that Team makes a written claim for indemnification against the Sellers pursuant to Section 11.7 below 46 47 within the applicable survival period, then the Sellers agree to indemnify Team from and against the entirety of any Adverse Consequences Team may suffer through and after the date of the claim for indemnification resulting from, arising out of, relating to, in the nature of, or caused by the breach (or alleged breach); provided, however, that the Sellers shall not have any obligation to indemnify Team from and against any such Adverse Consequences, resulting from, arising out of, relating to, in the nature of, or caused by the breach of any representation or warranty of the Sellers contained in Section 5 of this Agreement relating to Alsana, (i) less than $3,000 and (ii) until the aggregate of all such claims against the Benhams for Adverse Consequences in excess of $3,000 exceeds $100,000, and then only for the amount by which such Adverse Consequences resulting from, arising out of, relating to, in the nature of, or caused by the breach of any representation or warranty of the Sellers contained in Section 5 of this Agreement relating to Alsana exceeds $100,000. 9.2.3. Notwithstanding anything in Section 9.2.1 or Section 9.2.2 above to the contrary, and subject to the other terms and conditions of this Section 9, each Seller will be responsible to indemnify Team for the entirety of any Adverse Consequences Team may suffer as a result of any breach of his, her or its covenant in Section 2 above and his, her or its representations and warranties in Section 3.1 above concerning the transaction. Each Seller will be responsible to indemnify Team for any Adverse Consequences Team may suffer as a result of the breach by such Seller of any other covenant or representation and warranty contained in Section 5 of this Agreement in the ratio that the number of Climax Shares held by such Seller bears to all of the Climax Shares purchased hereunder by Team. 9.3. Indemnification Provisions for Benefit of the Sellers. In the event Team breaches (or in the event any third party alleges in writing facts that, if true, would mean Team has breached) any of its representations, warranties, and covenants contained herein, then Team agrees to indemnify each of the Sellers from and against the entirety of any Adverse Consequences the Seller may suffer through and after the date of the claim for indemnification resulting from, arising out of, relating to, in the nature of, or caused by the breach (or the alleged breach). 9.4. Matters Involving Third Parties. If any third party shall notify any Party (the "Indemnified Party") with respect to any matter (a "Third Party Claim") which may give rise to a claim for indemnification against any other Party (the "Indemnifying Party") under this Section 9, then the Indemnified Party shall promptly notify each Indemnifying Party thereof in writing; 47 48 provided, however, that no delay on the part of the Indemnified Party in notifying any Indemnifying Party shall relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party thereby is prejudiced. 9.5. Defense of Third Party Claims. Any Indemnifying Party will have the right to defend the Indemnified Party against the Third Party Claim with counsel of its choice reasonably satisfactory to the Indemnified Party so long as (A) the Indemnifying Party notifies the Indemnified Party in writing within 10 days after the Indemnified Party has given notice of the Third Party Claim that the Indemnifying Party will indemnify the Indemnified Party from and against the entirety of any Adverse Consequences the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third Party Claim, (B) the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party will have the financial resources to defend against the Third Party Claim and fulfill its indemnification obligations hereunder, (C) the Third Party Claim involves only money damages and does not seek an injunction or other equitable relief, (D) settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the good faith judgment of the Indemnified Party, likely to establish a precedential custom or practice adverse to the continuing business interests of the Indemnified Party, and (E) the Indemnifying Party conducts the defense of the Third Party Claim actively and diligently. So long as the Indemnifying Party is conducting the defense of the Third Party Claim in accordance with the foregoing, (A) the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third Party Claim, (B) the Indemnified Party will not consent to the entry of any judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of the Indemnifying Party (not to be withheld unreasonably), and (C) the Indemnifying Party will not consent to the entry of any judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of the Indemnified Party (not to be withheld unreasonably). In the event any of the aforesaid conditions in this Section 9.5 fail and/or cease to be satisfied, (A) the Indemnified Party may defend against, and consent to the entry of any judgment or enter into any settlement with respect to, the Third Party Claim in any manner it reasonably may deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith), (B) the Indemnifying Parties will reimburse the Indemnified Party promptly and periodically for the costs of defending against the Third Party Claim (including reasonable attorneys' fees and expenses), and (C) the Indemnifying Parties will remain responsible for any Adverse Consequences the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third Party Claim to the fullest extent provided in this Section 9. 48 49 9.6. Indemnification Payments Deemed to be Adjustments to Purchase Price. All indemnification payments under this Section 9 shall be deemed adjustments to the Purchase Price. 9.7. Indemnification for Certain Alsana Litigation. A Subsidiary of Climax, Alsana, is currently the subject of that certain complaint for infringement of patent, Case No. CIV S-98-0911 FCD PAN, under the style Tri Tool Inc. v. Climax Portable Machine Tools, Inc., et al., in the United States District Court for the Eastern District of California (the "Alsana Litigation"). Climax recently acquired its equity ownership of Alsana under the terms and conditions of the Alsana Documents. Each Seller agrees to indemnify Team from and against the entirety of any Adverse Consequences Team may suffer from and after the Closing Date resulting from, arising out of, relating to, in the nature of, or caused by the Alsana Litigation. A condition precedent to Team's exercise of its right to seek indemnity from the Sellers for the Alsana Litigation shall be Team's causing Climax to exercise its rights to set-off and seek indemnity from Alan S. Avis, Jr. under the Alsana Documents. Team shall not seek indemnity from the Sellers for the Alsana Litigation, including for the costs and expenses incurred pursuing the rights and remedies contemplated by the preceding sentence, until Team has used all reasonable efforts to pursue such rights and remedies contemplated by the preceding sentence. Team shall not, and shall cause Climax and Alsana not to, pay any amount or amounts in settlement of or in connection with the Alsana Litigation unless Team has a reasonable basis for concluding that all such amount or amounts paid shall not exceed the Adverse Consequences that could result from the Alsana Litigation. Each Seller will be responsible to Team for the indemnity contained in this Section 9.7 in the ratio that the number of Climax Shares held by such Seller bears to all of the Climax Shares purchased hereunder by Team. 9.8. Limit on Liability. Notwithstanding any provision contained herein to the contrary, (i) the limit of the aggregate liability of the ESOP under this Section 9 shall be the Purchase Price (as adjusted under Section 7.7) for the ESOP's Climax Shares less $1,109,966; (ii) the limit of the aggregate liability of the Edin Trust under this Section 9 shall be the Purchase Price (as adjusted under Section 7.7) for the Edin Trust's Climax Shares less $48,620; (iii) the limit of the aggregate liability of Weigel under this Section 9 shall be the Purchase Price (as adjusted under Section 7.7) for Weigel's Climax Shares less $25,740; and, (iv) the limit of the aggregate liability of the Benhams under this Section 9 shall be the Purchase Price (as adjusted under Section 7.7) for the Benhams' Climax Shares. A Seller shall not have any obligation to indemnify Team from and against any Adverse Consequences resulting from, arising out of, or relating to, in the nature of, or caused by the breach of a covenant contained in this Agreement if 49 50 such Seller is not the breaching Seller. 9.9. Other Indemnification Provisions. Team agrees that the foregoing indemnification provisions in this Section 9 shall be the exclusive remedy of Team for any breach of the representations, warranties, or the covenants of any of the Sellers in this Agreement. Each of the Sellers hereby agrees that he or it will not make any claim for indemnification against any of Climax and its Subsidiaries by reason of the fact that he or it was a director, officer, employee, or agent of any such entity or was serving at the request of any such entity as a partner, trustee, director, officer, employee, or agent of another entity (whether such claim is for judgments, damages, penalties, fines, costs, amounts paid in settlement, losses, expenses, or otherwise and whether such claim is pursuant to any statute, charter document, bylaw, agreement, or otherwise) with respect to any action, suit, proceeding, complaint, claim, or demand brought by Team against such Seller (whether such action, suit, proceeding, complaint, claim, or demand is pursuant to this Agreement, applicable law, or otherwise). 9.10. Assignment of Rights Under Alsana Documents. To the extent that Team seeks and receives indemnity from the Sellers relating to Adverse Consequences under Section 9.2.2 above without having first exercised and received the benefit of Climax' and Alsana's rights of set-off and to seek indemnity from Alan S. Avis, Jr. under the Alsana Documents, then, upon the written request of either Seller, Team shall cause Climax and Alsana to assign to such Seller their respective rights to set-off and to seek indemnity from Alan S. Avis, Jr. under the Alsana Documents. 10. Termination. 10.1. Termination of Agreement. This Agreement may be terminated as provided below: 10.1.1. Team and the Sellers may terminate this Agreement by mutual written consent at any time prior to the Closing; 10.1.2. Team may terminate this Agreement pursuant to the provisions of Section 4 above; 10.1.3. Team may terminate this Agreement by giving written notice to the Sellers on or before the 10th day following the later date to occur of the Delivery Date or the date of the delivery to Team of the Audit Report pursuant to Section 6.8 above if it is not 50 51 reasonably satisfied with the results of its continuing business, legal, and accounting due diligence regarding Climax and its Subsidiaries; 10.1.4. Team may terminate this Agreement by giving written notice to the Sellers at any time prior to the Closing (A) in the event any of the Sellers has breached any material representation, warranty, or covenant contained in this Agreement in any material respect, Team has notified the Sellers of the breach, and the breach has continued without cure for a period of five days after the notice of breach or (B) if the Closing shall not have occurred on or before August 31, 1998, by reason of the failure of any condition precedent under Section 8.1 hereof (unless the failure results primarily from Team breaching any representation, warranty, or covenant contained in this Agreement); and 10.1.5. the Sellers may terminate this Agreement by giving written notice to Team at any time prior to the Closing (A) in the event Team has breached any material representation, warranty, or covenant contained in this Agreement in any material respect, any of the Sellers has notified Team of the breach, and the breach has continued without cure for a period of five days after the notice of breach or (B) if the Closing shall not have occurred on or before August 31, 1998, by reason of the failure of any condition precedent under Section 8.2 hereof (unless the failure results primarily from any of the Sellers themselves breaching any representation, warranty, or covenant contained in this Agreement). 10.2. Effect of Termination. If any Party terminates this Agreement pursuant to Section 10.1 above, all rights and obligations of the Parties hereunder shall terminate without any Liability of any Party to any other Party except for any Liability of any Party then in breach. 11. Miscellaneous. 11.1. Press Releases and Public Announcements. Sellers shall not issue any press release or make any public announcement relating to the subject matter of this Agreement without the prior written approval of Team. Team shall, promptly after the execution of this Agreement by the Parties, issue a press release and make such public disclosure with respect to the Agreement as it believes in good faith is appropriate and/or is required by applicable law or any listing or trading agreement concerning its publicly-traded securities and will use its reasonable best efforts to timely provide the Sellers with a copy of such press release and public announcement . 51 52 11.2. No Third-Party Beneficiaries. This Agreement shall not confer any rights or remedies upon any Person other than the Parties and their respective successors and permitted assigns. 11.3. Entire Agreement. 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 related in any way to the subject matter hereof. 11.4. Succession and Assignment. 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 Team and the Sellers; provided, however, that Team may (i) assign any or all of its rights and interests hereunder to a wholly-owned subsidiary and (ii) designate a wholly-owned subsidiary to perform its obligations hereunder (in any or all of which cases under Section 11.4(i) or Section 11.4(ii), Team nonetheless shall remain unconditionally and absolutely responsible for the full and immediate performance of all of its and/or its assignee's obligations hereunder). 11.5. Counterparts. 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. 11.6. Headings. 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. 11.7. Notices. 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 the Sellers: Copy to: 52 53 Mr. and Mrs. R. LeRoy Benham Greene & Markley, P.C. Climax Portable Machine Tools, Inc. The 1515 Building, Suite 600 2712 E. Second Street 1515 S.W. Fifth Avenue Newberg, Oregon 97132-8210 Portland, Oregon 97201 Tel: 503-538-2185 Attn: Mr. Ward Greene Fax: 503-538-7600 Tel: 503-295-2668 Fax: 503-224-8434 Climax Portable Machine Tools, Inc. Stoel Rives LLP Employee Stock Ownership Plan Trust 900 SW Fifth Avenue, Suite 2300 2712 F. Second Street Portland, Oregon 97204 Newberg, Oregon 97132-8210 Attn: Mr. Gregory Macpherson Attn: Phillip R. Edin, Trustee Tel: 503-294-9205 Terry W. Weigel, Trustee Fax: 503-220-2480 Tel: 503-538-2185 Fax: 503-538-7600 Phillip R. Edin, Trustee Davis Wright Tremaine LLP The Phillip R. Edin Living Trust Suite 2300 1102 N. Springbrook Road, No. 252 1300 S.W. Fifth Avenue Newberg, Oregon 97132 Portland, Oregon 97201-5682 Attn: Carmen J. SantaMaria Mr. Terry W. Weigel Tel: 503-241-2300 15732 S.E. Cordova Court Fax: 503-778-5299 Milwaukie, Oregon 97267 If to Team: Copy to: 53 54 Team, Inc. Chamberlain, Hrdlicka, White, 200 Hermann Drive Williams & Martin Alvin, Texas 77511 1200 Smith Street, Suite 1400 P.O. Box 123 Houston, Texas 77002-4310 Alvin, Texas 77512-0123 Attn: Mr. Sidney B. Williams Attn: Mr. Kenneth M. Tholan, President Tel: 713-658-2516 Tel: 281-388-5507 Fax: 713-658-2553 Fax: 281-388-5583 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, or ordinary 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. 11.8. Governing Law. This Agreement shall be governed by and construed in accordance with the domestic laws of the State of Oregon without giving effect to any choice or conflict of law provision or rule (whether of the State of Oregon or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Oregon. 11.9. Amendments and Waivers. No amendment of any provision of this Agreement shall be valid unless the same shall be in writing and signed by Team and the Sellers. 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. 11.10. Severability. 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. 11.11. Expenses. Except as otherwise provided in this Agreement, each of the Parties, Climax and the Subsidiaries will bear his, her or its own costs and expenses (including legal fees and expenses) incurred in connection with this Agreement and the transactions contemplated 54 55 hereby. The Sellers agree that none of Climax and its Subsidiaries has borne or will bear any of the Sellers' costs and expenses (including any of their legal fees and expenses) in connection with this Agreement or any of the transactions contemplated hereby; provided, however, to the extent that Climax or any of its Subsidiaries has borne such costs and expenses, the Sellers agree (i) to cause such costs and expenses to be paid to Climax or such Subsidiary out of the Purchase Price in Cash at the Closing, or (ii) to reimburse Climax or such Subsidiary for such costs and expenses by Cash payment at the Closing. 11.12. Construction. 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. The Parties intend that each representation, warranty, and covenant contained herein shall have independent significance. If any Party has breached any representation, warranty, or covenant contained herein in any respect, the fact that there exists another representation, warranty, or covenant relating to the same subject matter (regardless of the relative levels of specificity) which the Party has not breached shall not detract from or mitigate the fact that the Party is in breach of the first representation, warranty, or covenant. 11.13. Incorporation of Exhibits and Schedules. The Exhibits and Schedules identified in this Agreement are incorporated herein by reference and made a part hereof. 11.14. Specific Performance. Each of the Parties acknowledges and agrees that the other Parties would be damaged irreparably in the event any of the provisions of this Agreement are not performed in accordance with their specific terms or otherwise are breached. Accordingly, each of the Parties agrees that the other Parties shall be entitled to an injunction or injunctions to prevent breaches of the provisions of this Agreement and to enforce specifically this Agreement and the terms and provisions hereof in any action instituted in any court of the United States or any state thereof having jurisdiction over the Parties and the matter (subject to the provisions set forth in Section 11.15 below), in addition to any other remedy to which they may be entitled, at law or in equity. 11.15. Arbitration. All disputes, controversies or claims arising out of the transaction evidenced by this Agreement, or between or among the Parties hereto, including but not limited 55 56 to those arising out of or relating to this Agreement or any related instruments, agreements, or documents, including any claim from an alleged tort, shall be determined by binding arbitration in accordance with the Federal Arbitration Act (or if not applicable, the applicable state law), the Rules of Practice and Procedure for the Arbitration of Commercial Disputes of the American Arbitration Association or any successor thereof ("AAA"), and the "Special Rules" set forth below. In the event of any inconsistency, the Special Rules shall control. Judgment upon any arbitration award may be entered in any court having jurisdiction. Any Party to this agreement or any related instruments, agreements, or documents may bring an action, including a summary or expedited proceeding, to compel arbitration of any controversy or claim to which this agreement applies in any court having jurisdiction over such action. 11.15.1. Special Rules. The following "Special Rules" shall apply to all arbitrations hereunder: 11.15.2. Commencement. All arbitration hearings will be commenced within 90 days of the demand for arbitration; further, the arbitrator shall only, upon a showing of cause, be permitted to extend the commencement of such hearing for up to an additional 60 days. 11.15.3. Three Arbitrators. The arbitration shall be conducted before a tribunal composed of three neutral arbitrators each of whom shall sign an oath agreeing to be bound by the code of ethics for arbitrators in commercial disputes promulgated by the AAA for neutral arbitrators. Each Party shall appoint an arbitrator, obtain its appointee's acceptance of such appointment, and deliver written notification of such appointment and acceptance to the other Party within 30 days after delivery of the notice of arbitration. 11.15.4. Appointment of Chairman. The two Party-appointed arbitrators shall jointly appoint the third arbitrator from the AAA "blue ribbon" panel for commercial disputes. If the appointment of the third arbitrator is not effected within 30 days, then, upon the joint request of the Parties or the request of either of them, the appointing authority shall appoint the third arbitrator, obtain acceptance of such appointment and acceptance. The third arbitrator shall serve as the chairman of the tribunal. 11.15.5. Qualifications of Chairman. The chairman shall be a lawyer admitted to the bar of the State of Oregon who shall have practiced for at least 12 years, shall speak, read and write the English language fluently, shall have expertise in commercial litigation, and be either a former judicial officer or an active partner in a law firm of no less than 50 lawyers. 11.15.6. Unavailability of Blue Ribbon Panelists. If for any reason members of 56 57 the blue ribbon panel are not available to serve as arbitrators or as chairman, then other commercial arbitrators of the AAA may serve, provided that preference shall be given to former judicial officers or active partners or shareholders in a law firm of no less than 50 lawyers with expertise in commercial litigation. 11.15.7. Impartiality. It is the intent of the Parties to avoid the appearance of impropriety due to bias or partiality on the part of any arbitrator. Prior to his or her formal appointment, each arbitrator shall disclose to the Parties and to the other members of the tribunal, any financial, fiduciary, kinship or other relationship between that arbitrator and any Party or its counsel, or between that arbitrator and any individual or entity with any financial, fiduciary, kinship or other relationship with any Party. For the purpose of this Agreement, "appearance of impropriety" shall be defined as such relationship or behavior as would cause a reasonable person to believe that bias or partiality on the part of the arbitrator may exist in favor of any Party. 11.15.8. Written Opinion. Any award or portion thereof, whether preliminary or final, shall be in a written opinion containing findings of fact and conclusions of law signed by each arbitrator. The arbitrator dissenting from an award or portion thereof shall issue a dissent from the award or portion thereof in writing, stating the reasons for his dissent. 11.15.9. Framing of Issues. The notice of arbitration shall contain a statement of any dispute in sufficient detail to apprise the other party of (i) the nature and scope of each dispute, (ii) the initiating party's position and (iii) the relief sought. Each other party shall, within 45 days after receipt of the notice, or within such other period of time as the parties may agree, deliver its answer to the initiating party, which shall contain its statement of the dispute, its positions and any counterclaims and the relief that it seeks. The initiating party shall then have 45 days, or such other period of time as the parties may agree, to deliver its reply to any counterclaim raised in the answer. No amendments to the notice, answer or reply shall be permitted without the consent of the other parties or of the arbitrators. 11.15.10. Discovery. The Parties agree that discovery shall be handled expeditiously. The Parties shall be entitled to a reasonable number of depositions, the final number which may be decided by the arbitrators if the Parties cannot agree. Interrogatories and requests for production may be used by the Parties under the Federal Rules of Civil Procedure. All disputes regarding discovery shall be promptly resolved by the arbitrators. 11.15.11. Locale. The locale for the arbitration shall be in Portland, Oregon unless otherwise agreed by the Parties. 57 58 11.15.12. Reservation of Rights. Nothing in this arbitration provision shall be deemed to limit the applicability of any otherwise applicable statutes of limitation or repose and any waivers contained in this Agreement. 58 59 IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the date first above written. TEAM: TEAM, INC. By: Kenneth M. Tholan, President THE BENHAMS: R. LeRoy Benham Paula Benham THE ESOP: CLIMAX PORTABLE MACHINE TOOLS, INC. EMPLOYEE STOCK OWNERSHIP PLAN TRUST By: Phillip R. Edin, Trustee By: Terry W. Weigel, Trustee By: R. LeRoy Benham, Trustee 59 60 THE EDIN TRUST: The Phillip Edin Living Trust By: Phillip R. Edin, Sole Trustee WEIGEL: Terry W. Weigel 60 61 EXHIBIT A - SHAREHOLDERS - --------------------------------------------------------------------------------
Name of Seller Number of Climax Shares Held by Such Seller - -------------------------------------------------------------------------------- R. LeRoy Benham 6,355 - -------------------------------------------------------------------------------- Paula Benham 6,355 - -------------------------------------------------------------------------------- The ESOP 7,662 - -------------------------------------------------------------------------------- Phillip R. Edin, Trustee of the Phillip Edin 340 Living Trust - -------------------------------------------------------------------------------- Terry W. Weigel 180 - --------------------------------------------------------------------------------
61 62 TABLE OF CONTENTS
Page 1. Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 1.1. "Accredited Investor" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 1.2. "Adverse Consequences" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 1.3. "Affiliate" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 1.4. "Affiliated Group" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 1.5. "Alsana" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 1.6. "Alsana Bonus" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 1.7. "Alsana Documents" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 1.8. "Alsana Litigation" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 1.9. "Applicable Rate" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 1.10. "Audit" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 1.11. "Audit Report" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 1.12. "Audited Financial Statements" . . . . . . . . . . . . . . . . . . . . . . . . . 2 1.13. "Basis" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 1.14. "Cash" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 1.15. "Climax" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 1.16. "Climax Auditor" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 1.17. "Climax Share" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 1.18. "Closing" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 1.19. "Closing Date" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 1.20. "Code" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 1.21. "Confidential Information" . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 1.22. "Controlled Group of Corporations" . . . . . . . . . . . . . . . . . . . . . . . 3 1.23. "Deferred Intercompany Transaction" . . . . . . . . . . . . . . . . . . . . . . 3 1.24. "Delivery Date" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 1.25. "Disclosure Schedule" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 1.26. "Employee Benefit Plan" . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 1.27. "Employee Pension Benefit Plan" . . . . . . . . . . . . . . . . . . . . . . . . 3 1.28. "Employee Welfare Benefit Plan" . . . . . . . . . . . . . . . . . . . . . . . . 4 1.29. "Environmental, Health, and Safety Laws" . . . . . . . . . . . . . . . . . . . . 4 1.30. "ERISA" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 1.31. "ESOP Contribution" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 1.35. "Excess Loss Account" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 1.36. "Extremely Hazardous Substance" . . . . . . . . . . . . . . . . . . . . . . . . 4 1.37. "Fiduciary" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 1.38. "Financial Statement" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
62 63 1.39. "GAAP" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 1.40. "Indemnified Party" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 1.41. "Indemnifying Party" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 1.42. "Intellectual Property" . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 1.43. "June 30, 1998 Audited Balance Sheet" . . . . . . . . . . . . . . . . . . . . . 5 1.44. "Knowledge" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 1.45. "Liability" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 1.46. "Most Recent Balance Sheet" . . . . . . . . . . . . . . . . . . . . . . . . . . 5 1.47. "Most Recent Financial Statements" . . . . . . . . . . . . . . . . . . . . . . . 5 1.48. "Most Recent Fiscal Month End" . . . . . . . . . . . . . . . . . . . . . . . . . 5 1.49. "Most Recent Fiscal Year End" . . . . . . . . . . . . . . . . . . . . . . . . . 5 1.50. "Multiemployer Plan" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 1.51. "Net Worth Deficit" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 1.52. "Net Worth Surplus" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 1.53. "Ordinary Course of Business" . . . . . . . . . . . . . . . . . . . . . . . . . 6 1.54. "Party" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 1.55. "PBGC" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 1.56. "Person" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 1.57. "Problem Disclosures" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 1.58. "Prohibited Transaction" . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 1.59. "Purchase Price" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 1.60. "Reportable Event" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 1.61. "SEC" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 1.62. "Securities Act" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 1.63. "Securities Exchange Act" . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 1.64. "Security Interest" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 1.65. "Seller" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 1.66. "Subsidiary" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 1.67. "Tax" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 1.68. "Tax Return" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 1.69. "Team's Auditor" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 1.70. "Team Stock" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 1.71. "Third Party Claim" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 2. Purchase and Sale of Climax Shares. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 2.1. Basic Transaction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 2.2. Purchase Price. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 2.2.1. Purchase Price for the Benhams' Climax Shares. . . . . . . . . . . . . . . . . . 8 2.2.2. Purchase Price for the ESOP's Climax Shares. . . . . . . . . . . . . . . . . . . 8 2.2.3. Purchase Price for the Edin Trust's Climax Shares. . . . . . . . . . . . . . . . 9 2.2.4. Purchase Price for Weigel's Climax Shares. . . . . . . . . . . . . . . . . . . . 9 2.3. The Closing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
63 64 2.4. Deliveries at the Closing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 3. Representations and Warranties Concerning the Transaction. . . . . . . . . . . . . . . . . . . . . 10 3.1. Representations and Warranties of the Sellers. . . . . . . . . . . . . . . . . . . . . . 10 3.1.1. Organization of the ESOP. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 3.1.2. Organization of the Edin Trust. . . . . . . . . . . . . . . . . . . . . . . . . . 10 3.1.3. Authorization of Transaction. . . . . . . . . . . . . . . . . . . . . . . . . . . 10 3.1.4. Noncontravention. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 3.1.5. Brokers' Fees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 3.1.6. Investment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 3.1.7. Climax Shares. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 3.2. Representations and Warranties of Team. . . . . . . . . . . . . . . . . . . . . . . . 12 3.2.1. Organization of Team. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 3.2.2. Authorization of Transaction. . . . . . . . . . . . . . . . . . . . . . . . . . . 12 3.2.3. Noncontravention. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 3.2.4. Brokers' Fees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 3.2.5. Investment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 4. Preparation and Delivery of Disclosure Schedule--Team's Right to Review. . . . . . . . . . . . . . 13 5. Representations and Warranties Concerning Climax and Its Subsidiaries. . . . . . . . . . . . . . . 14 5.1. Organization, Qualification, and Corporate Power. . . . . . . . . . . . . . . . . . . . 14 5.2. Capitalization. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 5.3. Noncontravention. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 5.4. Brokers' Fees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 5.5. Title to Assets. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 5.6. Subsidiaries. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 5.7. Financial Statements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 5.8. Events Subsequent to the date of the Most Recent Financial Statements. . . . . . . . . . 16 5.9. Undisclosed Liabilities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 5.10. Legal Compliance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 5.11. Tax Matters. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 5.12. Real Property. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 5.13. Intellectual Property. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 5.14. Tangible Assets. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 5.15. Inventory. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 5.16. Contracts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 5.17. Notes and Accounts Receivable. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 5.18. Powers of Attorney. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 5.19. Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 5.20. Litigation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 5.21. Product Warranty. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 5.22. Product Liability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 5.23. Employees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
64 65 5.24. Employee Benefits. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 5.25. Guaranties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 5.26. Environment, Health, and Safety. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 5.27. Certain Business Relationships with Climax and Its Subsidiaries. . . . . . . . . . . . . 33 5.28. Disclosure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 6. Pre-Closing Covenants. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 6.1. General. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 6.2. Notices and Consents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 6.3. Operation of Business. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 6.4. Preservation of Business. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 6.5. Full Access. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 6.6. Notice of Developments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 6.7. Exclusivity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 6.8. Audit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 6.10. Alsana Bonus. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 7. Post-Closing Covenants. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 7.1. General. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 7.2. Litigation Support. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 7.3. Transition. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 7.4. Confidentiality. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 7.5. Team Stock. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 7.6. [Intentionally Deleted.] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 7.7. June 30, 1998 Audited Balance Sheet. . . . . . . . . . . . . . . . . . . . . . . . . . . 38 8. Conditions to Obligation to Close. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 8.1. Conditions to Obligation of Team. . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 8.2. Conditions to Obligation of the Sellers. . . . . . . . . . . . . . . . . . . . . . . . . 41 9. Remedies for Breaches of This Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 9.1. Survival of Representations and Warranties. . . . . . . . . . . . . . . . . . . . . . . 43 9.2. Indemnification Provisions for Benefit of Team. . . . . . . . . . . . . . . . . . . . . 43 9.3. Indemnification Provisions for Benefit of the Sellers . . . . . . . . . . . . . . . . . 45 9.4. Matters Involving Third Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 9.5. Defense of Third Party Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 9.6. Indemnification Payments Deemed to be Adjustments to Purchase Price. . . . . . . . . . . 46 9.7. Indemnification for Certain Alsana Litigation. . . . . . . . . . . . . . . . . . . . . . 46 9.8. Limit on Liability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 9.9. Other Indemnification Provisions. . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 9.10. Assignment of Rights Under Alsana Documents. . . . . . . . . . . . . . . . . . . . . . . 47 10. Termination. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 10.1. Termination of Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
65 66 10.2. Effect of Termination. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 11. Miscellaneous. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 11.1. Press Releases and Public Announcements. . . . . . . . . . . . . . . . . . . . . . . . . 48 11.2. No Third-Party Beneficiaries. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 11.3. Entire Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 11.4. Succession and Assignment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 11.5. Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 11.6. Headings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 11.7. Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 11.8. Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 11.9. Amendments and Waivers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 11.10. Severability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 11.11. Expenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 11.12. Construction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52 11.13. Incorporation of Exhibits and Schedules. . . . . . . . . . . . . . . . . . . . . . . . . 52 11.14. Specific Performance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52 11.15. Arbitration. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52 11.15.1. Special Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53 11.15.2. Commencement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53 11.15.3. Three Arbitrators . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53 11.15.4. Appointment of Chairman . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53 11.15.5. Qualifications of Chairman . . . . . . . . . . . . . . . . . . . . . . . . . . 53 11.15.6. Unavailability of Blue Ribbon Panelists . . . . . . . . . . . . . . . . . . . . 53 11.15.7. Impartiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53 11.15.8. Written Opinion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54 11.15.9. Framing of Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54 11.15.10. Discovery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54 11.15.11. Locale . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54 11.15.12. Reservation of Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
66 67 TABLE OF CONTENTS (Cont'd.) 67 68 TABLE OF CONTENTS (Cont'd.) 68 69 TABLE OF CONTENTS (Cont'd.) 69 70 TABLE OF CONTENTS (Cont'd.) LIST OF ANNEXES, SCHEDULES AND EXHIBITS: ANNEX I - Exceptions to Representations and Warranties of the Sellers contained in Section 3.1. ANNEX II - Exceptions to Representations and Warranties of the Team contained in Section 3.2. DISCLOSURE SCHEDULE - Exceptions to Representations and Warranties of the Sellers concerning Climax and the Subsidiaries contained in Section 5. EXHIBIT A - Shareholder List EXHIBIT B - Financial Statements EXHIBIT C-1 - Employment Agreement of R. LeRoy Benham EXHIBIT C-2 - Employment Agreement of Phillip R. Edin EXHIBIT C-3 - Employment Agreement of Terry W. Weigel EXHIBIT D-1 - Opinion of Counsel to the Sellers EXHIBIT D-2 - Opinion of Counsel to the ESOP EXHIBIT E - Opinion of Counsel to Team EXHIBIT F - Escrow Agreement EXHIBIT G - Adjustments to the Most Recent Balance Sheet 70 71 TABLE OF CONTENTS (Cont'd) STOCK PURCHASE AGREEMENT AMONG TEAM, INC. AND R. LEROY AND PAULA BENHAM, THE CLIMAX PORTABLE MACHINE TOOLS, INC. EMPLOYEE STOCK OWNERSHIP PLAN TRUST, PHILLIP R. EDIN, TRUSTEE OF THE PHILLIP EDIN LIVING TRUST, AND TERRY W. WEIGEL DATED AS OF JULY 3, 1998 71 EX-10.AB 5 FIRST AMEND. TO THE EMPLOYMENT & CONSULTING AGMT. 1 EXHIBIT 10(ab) FIRST AMENDMENT TO EMPLOYMENT AGREEMENT The Employment Agreement (the "Employment Agreement") dated as of June 1, 1997 by and between Team, Inc. ("Team") and William Ryan ("Ryan") is hereby amended by this "First Amendment" which is dated as of August 12, 1998 and made retroactive to June 1, 1998 (the "Effective Date"). WITNESSETH: WHEREAS, Ryan is the Chief Executive Officer and Chairman of the Board of Directors (the "Board") of Team; and, WHEREAS, during a meeting of the Board which was held July 30, 1998, the Board considered various proposed modifications to the Employment Agreement but decided to defer action with respect thereto pending further assessment of certain management issues; and, WHEREAS, the Board, at Ryan's request, has approved an immediate interim adjustment ("Interim Adjustment") to Ryan's base compensation pending the final resolution of issues related to Ryan's Employment Agreement. NOW, THEREFORE, Team and Ryan hereby agree as follows: I. The Employment Agreement is hereby amended by adding the following language to the end of paragraph 2(a): "Notwithstanding the foregoing, from and after June 1, 1998 and throughout the remainder of the Employment Period, Ryan shall be paid Monthly Salary Payments of $16,666.66 per month as Base Compensation rather than the $8,333.33 Monthly Salary Payments provided for in the first sentence of paragraph 2(a). Team shall, as promptly as practical hereafter, pay Ryan the difference between the $8,333.33 Monthly Salary Payments heretofore actually paid Ryan for the months of June and July 1998 and the Revised Monthly Salary Payments of $16,666.66. Ryan's entitlement to be paid $100,000 for the Post Employment Term, as provided in the first sentence of paragraph 2(a), is not altered in any respect by the this First Amendment." 2 II. Paragraph 4 of the Employment Agreement is hereby amended to read as follows: "4. Term. The Term ("Term") of this Agreement commenced effective June 1, 1997 and unless sooner terminated by mutual agreement of the parties or by termination "for cause" pursuant to Section 5(b), shall terminate on the fourth annual anniversary of the last day of the Post Employment Period." III. Except as amended by Items I and II above, the Employment Agreement remains in full force and effect and is hereby reaffirmed by the parties. The Employment Agreement, as amended by this First Amendment, sets forth the entire agreement of the parties with respect to Ryan's employment and his entitlement to receive compensation from Team. IN WITNESS WHEREOF, the Ryan and Team have executed this First Amendment to the Employment Agreement on the 12th day of August to be effective as of June 1, 1998. /s/ SIDNEY B. WILLIAMS ---------------------------- Sidney B. Williams, Director of Team, Inc., with authorization of the entire Board /s/ WILLIAM A. RYAN ----------------------------- William A. Ryan, individually EX-21 6 SUBSIDIARIES OF THE COMPANY 1 EXHIBIT 21 SUBSIDIARIES OF REGISTRANT COMPANY JURISDICTION / STATE OF INCORPORATION Team, Inc. Texas TeamCam Limited Trinidad, West Indies Team Industrial Services, Ltd. United Kingdom Teaminc. Europe The Netherlands Team Investment, Inc. Delaware Team Facilities & Services, L.P. Texas Teco Manufacturing, Inc. Texas Pipe Repairs, Inc. Texas Hellums Services, Inc. Texas Team Industrial Services, Inc. (formerly Team Environmental Services, Inc.) Texas Leak Repairs, Inc. Delaware USA Maintenance & Repair Services, Inc. (Formerly Universal Services Co., Inc.) Texas First American Capital Corporation Texas Team Industrial Services (Cayman), Inc. Cayman Islands Team Industrial Services Asia Pte. Ltd. Singapore EX-27 7 FINANCIAL DATA SCHEDULE
5 YEAR MAY-31-1998 MAY-31-1998 1,355,000 0 9,811,000 247,000 6,801,000 18,582,000 18,481,000 11,833,000 27,080,000 5,533,000 5,966,000 0 0 1,828,000 13,753,000 27,080,000 0 45,457,000 0 25,933,000 16,610,000 0 450,000 2,464,000 1,071,000 1,393,000 0 0 0 1,393,000 0.23 0.23
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