NONSTATUTORY STOCK OPTION AGREEMENT
EXHIBIT 10.13
AGREEMENT made as of the ___day of ___, 200_, between COMPLETE PRODUCTION SERVICES,
INC., fka Integrated Production Services, Inc., a Delaware corporation (the “Company”), and
___(“Employee”).
To
carry out the purposes of the AMENDED AND RESTATED COMPLETE PRODUCTION SERVICES, INC. 2001 STOCK INCENTIVE
PLAN (the “Plan”), by affording Employee the opportunity to purchase shares of the common stock of
the Company, par value $0.01 per share (“Stock”), and in consideration of the mutual agreements and
other matters set forth herein and in the Plan, the Company and Employee hereby agree as follows:
1) Grant of Option. The Company hereby irrevocably grants to Employee the right and
option (“Option”) to purchase all or any part of an aggregate of ___shares of Stock on the
terms and conditions set forth herein and in the Plan, which Plan is incorporated herein by
reference as a part of this Agreement. In the event of any conflict between the terms of this
Agreement and the Plan, the Plan shall control. Capitalized terms used but not defined in this
Agreement shall have the meaning attributed to such terms under the Plan, unless the context
requires otherwise. Exercise of this Option is subject to, and contingent upon, approval of the
Plan by the stockholders of the Company on or before 12 months after the date the Plan was adopted
by the Board of Directors of the Company. This Option shall not be treated as an incentive stock
option within the meaning of section 422(b) of the Code.
2) Purchase Price. The purchase price of Stock purchased pursuant to the exercise of
this Option shall be
US$ per share.
3) Exercise of Option. Subject to the earlier expiration of this Option as herein
provided, this Option may be exercised, by written notice to the Company at its principal executive
office addressed to the attention of its Corporate Secretary (or such other officer or Employee of
the Company as the Company may designate from time to time), at any time and from time to time
after the date of grant hereof, but, except as otherwise provided below, this Option shall not be
exercisable for more than a percentage of the aggregate number of shares offered by this Option
determined in accordance with the following schedule:
| Number of Full Years From the Date of Grant | ||||
Less than 1 year |
0 | % | ||
1 year but less than 2 years |
33 | % | ||
2 years but less than 3 years |
67 | % | ||
3 years or more |
100 | % |
This Option may be exercised only while Employee remains an Employee of the Company and will
terminate and cease to be exercisable upon Employee’s termination of service as an Employee with
the Company, except that:
1. If Employee’s service with the Company terminates by reason of disability (within
the meaning of section 22(e)(3) of the Code), this Option may be exercised by Employee (or
Employee’s estate or the person who acquires this Option by will or the laws of descent and
distribution or otherwise by reason of the death of Employee) at any time during the period
of one year following such termination, but only as to the number of shares Employee was
entitled to purchase hereunder as of the date Employee’s service so terminates.
2. If Employee dies while in the service of the Company, Employee’s estate, or the
person who acquires this Option by will or the laws of descent and distribution or otherwise
by reason of the death of Employee, may exercise this Option at any time during the period
of one year following the date of Employee’s death, but only as to the number of shares
Employee was entitled to purchase hereunder as of the date of Employee’s death.
3. If Employee’s service with the Company terminates for any reason other than as
described in (a) or (b) above, unless Employee voluntarily terminates such service or such
service is terminated for cause, this Option may be exercised by Employee at any time during
the period of three months following such termination, or by Employee’s estate (or the
person who acquires this Option by will or the laws of descent and distribution or otherwise
by reason of the death of Employee) during a period of one year following Employee’s death
if Employee dies during such three month period, but in each case only as to the number of
shares Employee was entitled to purchase hereunder as of the date Employee’s service so
terminates. The Committee may, in its sole discretion, advise Employee in writing, prior to
a voluntary termination of Employee’s service, that such termination will be treated for
purposes of this paragraph as an involuntary termination for a reason other than cause. As
used in this paragraph, the term “cause” shall mean Employee (i) has been convicted of a
misdemeanor involving moral turpitude or of a felony, (ii) has engaged in gross negligence
or willful misconduct in the performance of the duties of Employee’s service, (iii) has
willfully disregarded any written corporate policies established by the Company, or (iv) has
materially breached any material provision of any written agreement between Employee and the
Company or any of its Affiliates.
This Option shall not be exercisable in any event after the expiration of ten years from the date
of grant hereof. The purchase price of shares as to which this Option is exercised shall be paid
in full at the time of exercise (a) in cash (including check, bank draft or money order payable to
the order of the Company), (b) if the Committee so agrees, by delivering or constructively
tendering to the Company shares of Stock having a Fair Market Value equal to the purchase price
(provided such shares used for this purpose must have been held by Employee for such minimum period
of time as may be established from time to time by the Committee), (c) if the Stock is readily
tradable on a national securities market, through a “cashless-broker” exercise in accordance with a
Company established policy or program for the same, or (d) any combination of the foregoing. No
fraction of a
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share of Stock shall be issued by the Company upon exercise of an Option or accepted by the Company
in payment of the exercise price thereof; rather, Employee shall provide a cash payment for such
amount as is necessary to effect the issuance and acceptance of only whole shares of Stock. Unless
and until a certificate or certificates representing such shares shall have been issued by the
Company to Employee, Employee (or the person permitted to exercise this Option in the event of
Employee’s death) shall not be or have any of the rights or privileges of a shareholder of the
Company with respect to shares acquirable upon an exercise of this Option.
4) Withholding of Tax. To the extent that the exercise of this Option or the
disposition of shares of Stock acquired by exercise of this Option results in compensation income
or wages to Employee for federal, foreign, provincial, state or local tax purposes, Employee shall
deliver to the Company at the time of such exercise or disposition such amount of money or shares
of Stock as the Company may require to meet its minimum obligation under applicable tax laws or
regulations. No exercise of this option shall be effective until Employee (or the person entitled
to exercise this Option, as applicable) has made arrangements approved by the Company to satisfy
all applicable minimum tax withholding requirements of the Company.
5) Shareholders Agreement. Shares of Stock purchased pursuant to the exercise of this
Option shall be subject to the terms of that certain Shareholders Agreement dated as of September
20, 2002, among the Company and certain of its stockholders, as the same may be amended or restated
from time to time (the “Shareholders Agreement”). Employee agrees that Employee and Employee’s
spouse, if any, will, on the first date of exercise of this Option, execute and deliver to the
Company such documents and instruments as the Board, in its discretion, may require to evidence
such persons’ agreement to be bound by the terms of the Shareholders Agreement.
6) Lock-up Provision. Employee hereby agrees that in the event of any underwritten
public offering of stock, including an initial public offering of stock, made by the Company
pursuant to an effective registration statement filed under the Securities Act of 1933, as amended
(the “Act”), Employee shall not offer, sell, contract to sell, pledge, hypothecate, grant any
option to purchase or make any short sale of, or otherwise dispose of any shares of stock of the
Company or any rights to acquire stock of the Company for such period of time from and after the
effective date of such registration statement as may be established by the underwriter for such
public offering; provided, however, that such period of time shall not exceed 180
days from the effective date of the registration statement to be filed in connection with such
public offering. The foregoing limitation shall not apply to shares registered in the public
offering under the Act.
7) Status of Stock. Employee understands that at the time of the execution of this
Agreement the shares of Stock to be issued upon exercise of this Option have not been registered
under the Act, or any state securities law, and that the Company does not currently intend to
effect any such registration. Until the shares of Stock acquirable upon the exercise of the Option
have been registered for issuance under the Act, the Company will not issue such shares unless the
holder of the Option provides the Company with a written opinion of legal counsel, who shall be
satisfactory to the Company, addressed to the Company and satisfactory in form and substance to the
Company’s counsel, to the effect that the proposed issuance of such shares to such Option holder
may be made without registration under the Act. In the event exemption from registration under the
Act is available upon an exercise of this Option, Employee (or the person permitted to exercise
this Option in the event of Employee’s death or incapacity), if requested by the Company to do so,
will execute
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and deliver to the Company in writing an agreement containing such provisions as the Company
may require to assure compliance with applicable securities laws.
Employee agrees that the shares of Stock which Employee may acquire by exercising this Option
shall be acquired for investment without a view to distribution, within the meaning of the Act, and
shall not be sold, transferred, assigned, pledged or hypothecated in the absence of an effective
registration statement for the shares under the Act and applicable state securities laws or an
applicable exemption from the registration requirements of the Act and any applicable state
securities laws. Employee also agrees that the shares of Stock which Employee may acquire by
exercising this Option will not be sold or otherwise disposed of in any manner which would
constitute a violation of any applicable federal or state securities laws.
In addition, Employee agrees that (i) that the certificates representing the shares of Stock
purchased under this Option may bear such legend or legends as the Committee deems appropriate in
order to assure compliance with the terms and provisions of the Shareholders Agreement, Paragraph
7, and applicable securities laws, (ii) the Company may refuse to register the transfer of the
shares of Stock purchased under this Option on the stock transfer records of the Company if such
proposed transfer would in the opinion of counsel satisfactory to the Company constitute a
violation of the terms and provisions of the Shareholders Agreement, Paragraph 7, or any applicable
securities law, and (iii) the Company may give related instructions to its transfer agent, if any,
to stop registration of the transfer of the shares of Stock purchased under this Option.
8) Service Relationship. For purposes of this Agreement, Employee shall be considered
to be in the service of the Company as long as Employee remains an Employee of either the Company,
an Affiliate, or a corporation or a parent or subsidiary of such corporation assuming or
substituting a new option for this Option. Without limiting the scope of the preceding sentence,
it is expressly provided that Employee shall be considered to have terminated service with the
Company at the time of the termination of the “Affiliate” status under the Plan of the entity or
other organization that employs Employee. Any question as to whether and when there has been a
termination of such service, and the cause of such termination, shall be determined by the
Committee and its determination shall be final.
9) Binding Effect. This Agreement shall be binding upon and inure to the benefit of
any successors to the Company and all persons lawfully claiming under Employee.
10) Entire Agreement. This Agreement constitutes the entire agreement of the parties
with regard to the subject matter hereof, and contains all the covenants, promises,
representations, warranties and agreements between the parties with respect to the Option granted
hereby. Without limiting the scope of the preceding sentence, all prior understandings and
agreements, if any, among the parties hereto relating to the subject matter hereof are hereby null
and void and of no further force and effect. Any modification of this Agreement shall be effective
only if it is in writing and signed by both Employee and an authorized officer of the Company.
11) Governing Law. This Agreement shall be governed by, and construed in accordance
with, the laws of the State of Delaware, without regard to conflicts of laws principles thereof.
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IN WITNESS WHEREOF, the Company has caused this Agreement to be duly executed by its officer
thereunto duly authorized, and Employee has executed this Agreement, all as of the day and year
first above written.
By: |
||
Name:
|
Xxxxx X. Xxxxxxx | |
Title:
|
Vice President, General Counsel & Corporate Secretary | |
Employee: |
||
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