NONQUALIFIED STOCK OPTION
AGREEMENT
FOR NON-EMPLOYEE DIRECTORS
THIS
AGREEMENT is made by and between Complete Production Services,
Inc., a Delaware corporation hereinafter referred to as
“Company,” and «Name» , a non-employee
director of the Company, hereinafter referred to as
“Director” effective as of
«Grant_Date» :
WHEREAS,
the Company wishes to afford the Director the opportunity to
purchase shares of its $0.01 par value Common Stock;
WHEREAS,
the Company wishes to carry out the Complete Production Services,
Inc. 2008 Incentive Award Plan, as amended or restated from time to
time (the terms of which are hereby incorporated by reference and
made a part of this Agreement), which provides for the grant of
Options to the Director as an inducement to enter into or remain in
the service of the Company or its Subsidiaries and as an incentive
for increased efforts during such service.
NOW,
THEREFORE, in consideration of the mutual covenants herein
contained and other good and valuable consideration, receipt of
which is hereby acknowledged, the parties hereto do hereby agree as
follows:
Whenever the
following terms are used in this Agreement, they shall have the
meaning specified below unless the context clearly indicates to the
contrary. The masculine pronoun shall include the feminine and
neuter, and the singular the plural, where the context so
indicates. Capitalized terms used but not defined in this Agreement
shall have the meaning ascribed to such terms in the
Plan.
Section 1.1. Administrator
“Administrator”
shall mean the entity that conducts the administration of the Plan
(including the grant of Awards) as provided therein and generally
shall refer to the Compensation Committee of the Board, unless and
to the extent the Board has assumed the authority for
administration of all or any part of the Plan.
“Board”
shall mean the Board of Directors of the Company.
Section 1.3. Change of Control
“Change
of Control” shall mean (a) a transaction or series of
transactions whereby any “person” or related
“group” of “persons” (as such terms are
used in Sections 13(d) and 14(d)(2) of the Exchange Act) directly
or indirectly acquires beneficial ownership (within the meaning of
Rule 13d-3 under the Exchange Act) of securities of the Company
possessing more than 20% of the total combined voting power of the
Company’s securities outstanding immediately after such
acquisition, other than:
(i) an
acquisition by an employee benefit plan or any trustee holding
securities under any employee benefit plan (or related trust)
sponsored or maintained by the Company or any person controlled by
the Company; or
(ii) an
acquisition by the Company or any Subsidiary; or
(iii) an
acquisition pursuant to the offering of shares of Common Stock by
the Company to the general public through a registration statement
filed with the Securities and Exchange Commission; or
(iv) an
acquisition of voting securities pursuant to a transaction
described in clause (c) below that would not be a Change in Control
under clause (c).
(b) individuals
who, as of the date hereof, constitute the Board (the “
Incumbent Board ”) cease for any reason to constitute
at least a majority of the Board; provided, however, that
any individual becoming a director subsequent to the date hereof
whose election, or nomination for election by the Company’s
stockholders, was approved by a vote of at least two thirds of the
directors then comprising the Incumbent Board shall be considered
to be members of the Incumbent Board, but excluding, for this
purpose, any such individual whose initial assumption of office was
a result of an actual or threatened election contest with respect
to the election or removal of directors; or
(c) the
consummation by the Company (whether directly involving the Company
or indirectly involving the Company through one or more
intermediaries or subsidiaries) of (x) a merger,
consolidation, reorganization, or business combination, including
without limitation, a reverse or forward triangular merger, or
(y) the acquisition of assets or stock of another entity, in
each case, other than a transaction, which results in the
Company’s stockholders prior to such transaction owning at
least 55% of the outstanding voting securities of the surviving or
resulting corporation or entity.
(d) a tender
offer or exchange offer is made and consummated by a person or
group of persons other than the Company for the ownership of 20% or
more of the Company’s voting securities; or
(e) a
disposition, transfer, sale or exchange of all or substantially all
of the Company’s assets, or the Company’s stockholders
approve a plan of liquidation or dissolution of the
Company.
For purposes of
subsection (a) above, the calculation of voting power shall be
made as if the date of the acquisition were a record date for a
vote of the Company’s stockholders, and for purposes of
subsection (c) above, the calculation of voting power shall be
made as if the date of the consummation of the transaction or at
the consummation of the last of a series of related transactions
were a record date for a vote of the Company’s
stockholders.
“Code”
shall mean the Internal Revenue Code of 1986, as
amended.
Section 1.5. Common Stock
“Common
Stock” shall mean the common stock of the Company, par value
$0.01 per share.
“Company”
shall mean Complete Production Services, Inc., a Delaware
corporation, or any successor corporation.
Section 1.7. Exchange Act
2
“Exchange
Act” shall mean the Securities Exchange Act of 1934, as
amended.
“Option”
shall mean the non-qualified stock option granted under this
Agreement and Article VII of the Plan, as specified
herein.
3
“Plan”
shall mean the Complete Production Services, Inc. 2008 Incentive
Award Plan, as amended and/or restated from time to
time.
“DRO”
shall mean a qualified domestic relations order as defined by the
Code or Title I of the Employee Retirement Income Security Act of
1974, as amended, or the rules thereunder.
“Rule 16b-3”
shall mean that certain Rule 16b-3 under the Exchange Act, as
such Rule may be amended from time to time.
“Secretary”
shall mean the Secretary of the Company.
Section 1.13. Securities Act
“Securities
Act” shall mean the Securities Act of 1933, as
amended.
“Subsidiary”
shall mean any entity (other than the Company), whether domestic or
foreign, in an unbroken chain of entities beginning with the
Company if each of the entities other than the last entity in the
unbroken chain beneficially owns, at the time of the determination,
securities or interests representing more than fifty percent (50%)
of the total combined voting power of all classes of securities or
interests in one of the other entities in such chain.
Section 1.15. Termination of Service
“Termination
of Service” As to a Non-Employee Director, the time when a
Holder who is a Non-Employee Director ceases to be a Director for
any reason, including, without limitation, a termination by
resignation, failure to be elected, death or retirement, but
excluding terminations where the Holder simultaneously commences or
remains in employment or service with the Company or any
Subsidiary. The Board, in its sole and absolute discretion, shall
determine the effect of all matters and questions relating to
Termination of Service.
Section 2.1. Grant of Option
In
consideration of the Director’s agreement to serve as an
independent director of the Company or its Subsidiaries until the
next annual meeting of stockholders of the Company and for other
good and valuable consideration, on «Grant_Date»
the Company irrevocably grants to the Director the option to
purchase any part or all of an aggregate of five thousand (5,000)
shares of its Common Stock upon the terms and conditions set forth
in this Agreement and the Plan.
4
Section 2.2. Purchase Price
The
purchase price of the shares of Common Stock covered by the Option
shall be $«Exercise_Price» per share (which is the
Fair Market Value of a share of Common Stock on the date of the
granting of this Option) without commission or other
charge.
5
Section 2.3. Consideration to Company
In
consideration of the granting of this Option by the Company, the
Director agrees to render faithful and efficient services to the
Company or a Subsidiary, with such duties and responsibilities as
the Company shall from time to time prescribe, until the next
annual meeting of stockholders of the Company. Nothing in the Plan
or this Agreement shall confer upon any Director any right to
continue as a director of the Company, or shall interfere with or
restrict in any way the rights of the Company and any Subsidiary,
which are hereby expressly reserved, to discharge the Director at
any time for any reason whatsoever, with or without good
cause.
Section 2.4. Adjustments in Option
(a) In
the event that the outstanding shares of the Common Stock subject
to the Option are changed into or exchanged for a different number
or kind of shares of the Company or other securities of the
Company, or of another corporation, by reason of reorganization,
merger, consolidation, recapitalization, reclassification, stock
split-up, stock dividend or combination of shares, or other
distribution of shares of Common Stock, the Administrator shall
make equitable adjustments, if any, in the number and
|
