TERMS AND CONDITIONS
(Rev. 2008)
These
Terms and Conditions constitute a part of the Stock Option
Agreement, dated as of the date set forth on the Signature Page
to Stock Option Agreement Terms and Conditions made a part
hereof (the “Signature Page”), concerning certain
Options granted by Complete Production Services, Inc., a Delaware
corporation hereinafter referred to as “Company,” to
the employee of the Company (or a Subsidiary of the Company) listed
on the Signature Page, hereinafter referred to as
“Employee.” These Terms and Conditions and the
Signature Page are collectively referred to as the
“Agreement.”
WHEREAS,
the Company wishes to afford the Employee 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 the same may be amended from
time to time (the “Plan”), the terms of which are
hereby incorporated by reference and made a part of this Agreement;
and
WHEREAS,
the Administrator of the Plan has determined that it would be to
the advantage and best interest of the Company and its stockholders
to grant the Option provided for herein to the Employee as an
inducement to enter into or remain in the service of the Company or
a Subsidiary of the Company and as an incentive for increased
efforts during such service, and has advised the Company thereof
and instructed the undersigned officers to issue said
Option.
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 (a) the Board has assumed the authority for
administration of all or any part of the Plan, or (b) the
Compensation Committee has delegated the authority for
administration of all or 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.
2
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.
“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.
“Employee”
shall mean shall mean any officer or other employee (as determined
in accordance with Section 3401(c) of the Code and the Treasury
Regulations thereunder) of the Company or of any
Subsidiary.
Section 1.9. Exchange Act
“Exchange
Act” shall mean the Securities Exchange Act of 1934, as
amended.
“Holder”
shall mean a person who has been granted an Option.
“Option”
shall mean a non-qualified stock option and/or incentive stock
option granted under this Agreement and Article V of the Plan,
as specified on the Signature Page.
“Plan”
shall mean the Complete Production Services, Inc. 2008 Incentive
Award Plan, as amended and/or restated from time to
time.
“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 1.15. Securities Act
“Securities
Act” shall mean the Securities Act of 1933, as
amended.
3
“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 1.17. Termination of Service
“Termination
of Service” as to an Employee, the time when the
employee-employer relationship between a Holder and the Company or
any Subsidiary is terminated for any reason, including, without
limitation, a termination by resignation, discharge, death,
disability or retirement; but excluding terminations where the
Holder simultaneously commences or remains in employment or service
with the Company or any Subsidiary. . The Administrator, in its
absolute discretion, shall determine the effect of all matters and
questions relating to Termination of Service, including, but not by
way of limitation, the question of whether a Termination of Service
resulted from a discharge for cause, and all questions of whether
particular leaves of absence constitute Termination of Service.
Notwithstanding any other provision of the Plan or this Agreement,
the Company or any Subsidiary has an absolute and unrestricted
right to terminate the Employee’s employment at any time for
any reason whatsoever, with or without cause, except to the extent
expressly provided otherwise in writing.
Section 2.1. Grant of Option
Effective
as of the Grant Date set forth on the Signature Page, the Company
irrevocably grants to the Employee the option to purchase any part
or all of the aggregate number of shares of its Common Stock set
forth on the Signature Page, all upon the terms and conditions set
forth in this Agreement. On the Signature Page, the Company has
indicated for this Option to be either a non-qualified or incentive
stock option, or to apportion the Option shares between the
two.
Section 2.2. Purchase Price
The
per share purchase price of the shares of Common Stock covered by
the Option is set forth on the Signature Page, and shall not be
subject to commission or other charge.
Section 2.3. Consideration to Company
In
consideration of the granting of this Option by the Company, the
Employee (i) agrees to render faithful and efficient services
to the Company or its any Subsidiary, with such duties and
responsibilities as the Company or any Subsidiary shall from time
to time prescribe, for a period of at least one (1) year from
the date this Option is granted, (ii) agrees not disclose or
use, directly or indirectly, any proprietary or confidential
information concerning the Company or any Subsidiary so long as
such information is proprietary and/or confidential, except any
disclosure or use that is for the benefit of the Company or such
Subsidiary and incidental to the Employee’s employment, and
(iii) agrees to abide by all of the terms and conditions of
this Agreement and the Plan. Nothing in the Plan or this Agreement
shall confer upon the Employee any right to continue in the employ
of the Company or any Subsidiary, or shall interfere with or
restrict in any way the rights of the Company and any Subsidiary,
which are hereby
4
expressly
reserved, to discharge the Employee 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 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 kind of shares as to which
the Option, or portions thereof then unexercised, shall be
exercisable, to the end that after such event the Employee’s
proportionate interest shall be maintained as before the occurrence
of such event. Such adjustment in the Option may include any
necessary corresponding adjustment in the Option price per share,
but shall be made without change in the total price applicable to
the unexercised portion of the Option (except for any change in the
aggregate price resulting from rounding-off of share quantities or
prices). Any such adjustment made by the Administrator shall be
final and binding upon the Employee, the Company and all other
interested persons.
(b) Notwithstanding
the foreg
|
