FIRST AMENDMENT TO
CHANGE OF CONTROL AGREEMENT
THIS FIRST AMENDMENT TO CHANGE OF CONTROL AGREEMENT (the
“Amendment”) is entered into and effective as of
, 2008, by and between Exterran Holdings, Inc., a Delaware
corporation (the “Company”), and
(“Executive”).
WHEREAS , the Company and Executive entered into a Change of
Control Agreement (the “Agreement”), dated
August 20, 2007, regarding their respective rights and
obligations in connection with a Change of Control (as defined in
the Agreement) during the term of the Agreement; and
WHEREAS , the Company and Executive desire to amend the
Agreement to comply with the applicable requirements of
Section 409A of the Internal Revenue Code of 1986, as amended,
and the final Treasury Regulations issued thereunder;
and
WHEREAS , Section 6(f) of the Agreement provides that the
Agreement may be amended only by the written agreement of the
Company and Executive;
NOW, THEREFORE , effective as of the day and year first
above written, the parties agree to amend the Agreement as set
forth below:
1.
The first clause of the first sentence in Section 3(a) of the
Agreement is hereby amended to read as follows:
“Following a Qualifying Termination of
Employment, the Company shall pay to Executive, not later than the
60th day following the Date of Termination, an amount, in a lump
sum payment, equal to the sum of:”
2.
The first sentence in Section 3(c) of the Agreement is hereby
amended to read as follows:
“All
stock options, restricted stock, restricted stock units, or other
awards based in common stock of the Company, and all common units,
unit appreciation rights, unit options and other awards based in
common units representing limited partner interests of the
Partnership, and all cash-based incentive awards held by
Executive
-1-
and not
previously vested shall be 100% vested as of Executive’s Date
of Termination (except with respect to awards denominated in or
relating to common units of the Partnership that, by their terms,
continue to vest following a termination of employment without
cause or for good reason); provided, however , that with
respect to an award that is subject to Code Section 409A, such
acceleration of vesting under this Section 3(c) shall not cause an
impermissible acceleration of the payment date of such award under
Code Section 409A.”
3.
Section 3(d) of the Agreement is hereby amended to read as
follows:
“(d)
Interest . If any payment due under the terms of this
Agreement is not timely made by the Company, its successors or
assigns, interest shall accrue on such payment at the highest
maximum legal rate permissible under applicable law from the date
such payment first became due through the date it is paid (with
such interest paid in a single lump sum as of the date the Company
makes the late payment).”
4.
Section 3(f) of the Agreement is hereby amended to read as
follows:
“(f)
Severance Offset . Any cash severance payments provided
under Section 3(a) shall be offset or reduced by the amount of any
cash severance amounts payable to Executive under any other
individual agreement the Company or an affiliate may have entered
into with Executive or any severance plan or program maintained by
the Company or any affiliate for employees in general, but only to
the extent such severance amounts are payable in the same form and
in the same calendar year in which such cash severance payments
under this Agreement are to be made.”
5.
Section 3(g)(i) of the Agreement is hereby amended to read as
follows:
“(i) This
Agreement is intended to comply with, and shall be interpreted
consistent with the applicable requirements of, Code
Section 409A and any ambiguous provisions will be construed in
a manner that is compliant with or exempt from the application of
Code Section 409A. A Qualifying Termination of Employment of
Executive is intended to constitute an involuntary separation from
service for purposes of Code Section 409A. Executive shall
have no right to specify the calendar year during which any payment
hereunder shall be made.”
6.
The first sentence in Section 3(g)(iii
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