exv10w6



 








Exhibit 10.6




COMPLETE PRODUCTION SERVICES, INC.




AMENDED AND RESTATED

2001 STOCK INCENTIVE PLAN




I.     PURPOSE




     The purpose of the COMPLETE PRODUCTION SERVICES, INC. AMENDED AND RESTATED 2001 STOCK
INCENTIVE PLAN (the “Plan”) is to provide a means through which Complete Production Services, Inc.,
a Delaware corporation (the “Company”), and its Affiliates may attract able persons to serve as
Directors or Consultants or to enter the employ of the Company and its Affiliates and to provide a
means whereby those individuals upon whom the responsibilities of the successful administration and
management of the Company and its Affiliates rest, and whose present and potential contributions to
the Company and its Affiliates are of importance, can acquire and maintain stock ownership, thereby
strengthening their concern for the welfare of the Company and its Affiliates. A further purpose
of the Plan is to provide such individuals with additional incentive and reward opportunities
designed to enhance the profitable growth of the Company and its Affiliates. Accordingly, the Plan
provides for granting Incentive Stock Options, options that do not constitute Incentive Stock
Options, Restricted Stock Awards, or any combination of the foregoing, as is best suited to the
circumstances of the particular employee, Consultant or Director as provided herein. This Plan
amends and restates in its entirety the Integrated Production Services, Inc. 2001 Stock Incentive
Plan (the “IPS Plan”), which amended and restated in its entirety the Saber Energy Services, Inc.
2001 Stock Incentive Plan (the “Original Plan”); provided, however, that to the extent amendments
made by the Plan to the IPS Plan or the Original Plan would impair the rights under an Option
Agreement awarded under the IPS Plan or the Original Plan, such amendments shall not apply to such
Option Agreement unless the optionee consents to such amendments.



II.     DEFINITIONS




     The following definitions shall be applicable throughout the Plan unless specifically modified
by any paragraph:



     (a)     "Affiliate” means any corporation, partnership, limited liability company or partnership,
association, trust or other organization which, directly or indirectly, controls, is controlled by,
or is under common control with, the Company. For purposes of the preceding sentence, “control”
(including, with correlative meanings, the terms “controlled by” and “under common control with”),
as used with respect to any entity or organization, shall mean the possession, directly or
indirectly, of the power (i) to vote more than 50% of the securities having ordinary voting power
for the election of directors of the controlled entity or organization, or (ii) to direct or cause
the direction of the management and policies of the controlled entity or organization, whether
through the ownership of voting securities or by contract or otherwise.



     (b)     "Award” means, individually or collectively, any Option or Restricted Stock Award.



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     (c)     "Board” means the Board of Directors of the Company.



     (d)     "Code” means the Internal Revenue Code of 1986, as amended. Reference in the Plan to any
section of the Code shall be deemed to include any amendments or successor provisions to such
section and any regulations under such section.



     (e)     "Committee” means the Compensation Committee of the Board, or another committee appointed
by the Board to administer the Plan in accordance with Paragraph IV(a).



     (f)     "Common Stock” means the common stock, par value $0.01 per share, of the Company, or any
security into which such Common Stock may be changed by reason of any transaction or event of the
type described in Paragraph IX.



     (g)     "Company” means Complete Production Services, Inc., a Delaware corporation.



     (h)     "Company Change” shall have the meaning assigned to such term in Paragraph IX(c) of the
Plan.



     (i)     "Consultant” means any person who is not an employee or a Director and who is providing
advisory or consulting services to the Company or any Affiliate.



     (j)     "Director” means an individual elected to the Board by the stockholders of the Company or
by the Board under applicable corporate law who is serving on the Board on the date the Plan is
adopted by the Board or is elected to the Board after such date.



     (k)     An “employee” means any person (including a Director) in an employment relationship with
the Company or any Affiliate.



     (l)     "Fair Market Value” means, as of any specified date, the mean of the high and low sales
prices of the Common Stock (i) reported by the National Market System of NASDAQ on that date or
(ii) if the Common Stock is listed on a national stock exchange, reported on the stock exchange
composite tape on that date (or such other reporting service approved by the Committee); or, in
either case, if no prices are reported on that date, on the last preceding date on which such
prices of the Common Stock are so reported. If the Common Stock is traded over the counter at the
time a determination of its fair market value is required to be made hereunder, its fair market
value shall be deemed to be equal to the average between the reported high and low or closing bid
and asked prices of Common Stock on the most recent date on which Common Stock was publicly traded.
In the event Common Stock is not publicly traded at the time a determination of its value is
required to be made hereunder, the determination of its fair market value shall be made by the
Committee in such manner as it deems appropriate. Notwithstanding the foregoing, the Fair Market
Value of a share of Common Stock on the date of an initial public offering of Common Stock shall be
the offering price under such initial public offering.



     (m)     "Incentive Stock Option” means an incentive stock option within the meaning of section 422
of the Code.



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     (n)     "Option” means an Award granted under Paragraph VII of the Plan and includes both
Incentive Stock Options to purchase Common Stock and Options that do not constitute Incentive Stock
Options to purchase Common Stock.



     (o)     "Option Agreement” means a written agreement between the Company and a Participant with
respect to an Option.



     (p)     "Participant” means an employee, Consultant, or Director who has been granted an Award.



     (q)     "Plan” means the Complete Production Services, Inc. Amended and Restated 2001 Stock
Incentive Plan, as amended from time to time.



     (r)     "Restricted Stock Agreement” means a written agreement between the Company and a
Participant with respect to a Restricted Stock Award.



     (s)     "Restricted Stock Award” means an Award granted under Paragraph VIII of the Plan.



     (t)     "Stock Appreciation Right” shall have the meaning assigned to such term in Paragraph
VIl(d) of the Plan.



III.     EFFECTIVE DATE AND DURATION OF THE PLAN




     The Plan shall become effective upon the date of its adoption by the Board, provided the Plan
is approved by the stockholders of the Company within 12 months thereafter. Notwithstanding any
provision in the Plan, in any Option Agreement or in any Restricted Stock Agreement, no Option
shall be exercisable and no Restricted Stock Award shall vest prior to such stockholder approval.
No further Awards may be granted under the Plan after 10 years from the date the Plan is adopted by
the Board. The Plan shall remain in effect until all Options granted under the Plan have been
satisfied or expired, and all Restricted Stock Awards granted under the Plan have vested or been
forfeited.



IV.     ADMINISTRATION




     (a)     Composition of Committee. The Plan shall be administered by the Compensation Committee of
the Board (or anther committee of the Board assuming the same functions) and shall consist of two
or more Directors satisfying the applicable requirements of Rule 16b-3 of the Securities Exchange
Act of 1934 and Section 162(m) of the Code. Vacancies in the Committee may be filled by the Board.
In the absence of the Board’s appointment of a committee to administer the Plan, the Board shall
serve as the Committee.



     (b)     Powers. Subject to the express provisions of the Plan, the Committee shall have
authority, in its discretion, to determine which employees, Consultants, or Directors shall receive
an Award, the time or times when such Award shall be made, whether an Incentive Stock Option or
nonqualified Option shall be granted, and the number of shares to be subject to each Option or
Restricted Stock Award. In making such determinations, the Committee shall take into account the
nature of the services rendered by the respective employees, Consultants, or Directors, their



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present and potential contribution to the Company’s success and such other factors as the
Committee in its discretion shall deem relevant.



     (c)     Additional Powers. The Committee shall have such additional powers as are delegated to it
by the other provisions of the Plan. Subject to the express provisions of the Plan, this shall
include the power to construe the Plan and the respective agreements executed hereunder, to
prescribe rules and regulations relating to the Plan, and to determine the terms, restrictions and
provisions of the agreement relating to each Award, including such terms, restrictions and
provisions as shall be requisite in the judgment of the Committee to cause designated Options to
qualify as Incentive Stock Options, and to make all other determinations necessary or advisable for
administering the Plan. The Committee may correct any defect or supply any omission or reconcile
any inconsistency in the Plan or in any agreement relating to an Award in the manner and to the
extent it shall deem expedient to carry it into effect. The determinations of the Committee on the
matters referred to in this Paragraph IV shall be conclusive.



V.     SHARES SUBJECT TO THE PLAN; GRANT OF AWARDS




     (a)     Shares Subject to the Plan. Subject to adjustment in the same manner as provided in
Paragraph IX with respect to shares of Common Stock subject to Options then outstanding, the
aggregate number of shares of Common Stock that may be issued under the Plan shall not exceed
4,500,000 shares. Shares shall be deemed to have been issued under the Plan only (i) to the extent
actually issued and delivered pursuant to an Award or (ii) to the extent an Award is settled in
cash. To the extent that an Award lapses or the rights of its holder terminate, any shares of
Common Stock subject to such Award shall again be available for the grant of an Award under the
Plan.



     (b)     Grant of Awards. The Committee may from time to time grant Awards to one or more
employees, Consultants, or Directors determined by it to be eligible for participation in the Plan
in accordance with the terms of the Plan. The maximum number of shares subject to Awards granted
to any individual in any calendar year shall not exceed 450,000.



     (c)     Stock Offered. Subject to the limitations set forth in Paragraph V(a), the stock to be
offered pursuant to the grant of an Award may be authorized but unissued Common Stock or Common
Stock previously issued and outstanding and reacquired by the Company. Any of such shares which
remain unissued and which are not subject to outstanding Awards at the termination of the Plan
shall cease to be subject to the Plan but, until termination of the Plan, the Company shall at all
times make available a sufficient number of shares to meet the requirements of the Plan.



VI.     ELIGIBILITY




     Awards may be granted only to persons who, at the time of grant, are employees, Consultants,
or Directors. An Award may be granted on more than one occasion to the same person, and, subject
to the limitations set forth in the Plan, such Award may include an Incentive Stock Option, an
Option that is not an Incentive Stock Option, a Restricted Stock Award, or any combination thereof.



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VII.     STOCK OPTIONS




     (a)     Option Period. The term of each Option shall be as specified by the Committee at the date
of grant.



     (b)     Limitations on Exercise of Option. An Option shall be exercisable in whole or in such
installments and at such times as determined by the Committee.



     (c)     Special Limitations on Incentive Stock Options. An Incentive Stock Option may be granted
only to an individual who is employed by the Company or any parent or subsidiary corporation (as
defined in section 424 of the Code) of the Company at the time the Option is granted. To the
extent that the aggregate Fair Market Value (determined at the time the respective Incentive Stock
Option is granted) of Common Stock with respect to which Incentive Stock Options are exercisable
for the first time by an individual during any calendar year under all incentive stock option plans
of the Company and its parent and subsidiary corporations exceeds $100,000, such Incentive Stock
Options shall be treated as Options which do not constitute Incentive Stock Options. The Committee
shall determine, in accordance with applicable provisions of the Code, Treasury regulations and
other administrative pronouncements, which of a Participant’s Incentive Stock Options will not
constitute Incentive Stock Options because of such limitation and shall notify the Participant of
such determination as soon as practicable after such determination. No Incentive Stock Option
shall be granted to an individual if, at the time the Option is granted, such individual owns stock
possessing more than 10% of the total combined voting power of all classes of stock of the Company
or of its parent or subsidiary corporation, within the meaning of section 422(b)(6) of the Code,
unless (i) at the time such Option is granted the option price is at least 110% of the Fair Market
Value of the Common Stock subject to the Option and (ii) such Option by its terms is not
exercisable after the expiration of five years from the date of grant. An Incentive Stock Option
shall not be transferable otherwise than by will or the laws of descent and distribution, and shall
be exercisable during the Participant’s lifetime only by such Participant or the Participant’s
guardian or legal representative.



     (d)     Option Agreement. Each Option shall be evidenced by an Option Agreement in such form and
containing such provisions not inconsistent with the provisions of the Plan as the Committee from
time to time shall approve, including, without limitation, provisions to qualify an Incentive Stock
Option under section 422 of the Code. Each Option Agreement shall specify the effect of
termination of (i) employment, (ii) the consulting or advisory relationship, or (iii) membership on
the Board, as applicable, on the exercisability of the Option. An Option Agreement may provide for
the payment of the option price, in whole or in part, by the delivery of a number of shares of
Common Stock (plus cash if necessary) having a Fair Market Value equal to such option price.
Moreover, an Option Agreement may provide for a “cashless exercise” of the Option by establishing
procedures satisfactory to the Committee with respect thereto. Further, an Option Agreement may
provide for the surrender of the right to purchase shares under the Option in return for a payment
in cash or shares of Common Stock or a combination of cash and shares of Common Stock equal in
value to the excess of the Fair Market Value of the shares with respect to which the right to
purchase is surrendered over the option price therefor (“Stock Appreciation Rights”), on such terms
and conditions as the Committee in its sole discretion may prescribe. In the case of any such
Stock Appreciation Right that is



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granted in connection with an Incentive Stock Option, such right shall be exercisable only
when the Fair Market Value of the Common Stock exceeds the price specified therefor in the Option
or the portion thereof to be surrendered. The terms and conditions of the respective Option
Agreements need not be identical. Subject to the consent of the Participant, the Committee may, in
its sole discretion, amend an outstanding Option Agreement from time to time in any manner that is
not inconsistent with the provisions of the Plan (including, without limitation, an amendment that
accelerates the time at which the Option, or a portion thereof, may be exercisable).



     (e)     Option Price and Payment. The price at which a share of Common Stock may be purchased
upon exercise of an Option shall be determined by the Committee but, subject to adjustment as
provided in Paragraph IX, (i) in the case of an Incentive Stock Option, such purchase price shall
not be less than the Fair Market Value of a share of Common Stock on the date such Option is
granted, and (ii) in the case of an Option that does not constitute an Incentive Stock Option, such
purchase price shall not be less than 85% of the Fair Market Value of a share of Common Stock on
the date such Option is granted. The Option or portion thereof may be exercised by delivery of an
irrevocable notice of exercise to the Company, as specified by the Committee. The purchase price
of the Option or portion thereof shall be paid in full in the manner prescribed by the Committee.
Separate stock certificates shall be issued by the Company for those shares acquired pursuant to
the exercise of an Incentive Stock Option and for those shares acquired pursuant to the exercise of
any Option that does not constitute an Incentive Stock Option.



     (f)     Stockholder Rights and Privileges. The Participant shall be entitled to all the
privileges and rights of a stockholder only with respect to such shares of Common Stock as have
been purchased under the Option and for which certificates of stock have been registered in the
Participant’s name.



     (g)     Options and Rights in Substitution for Options Granted by Other Employers. Options and
Stock Appreciation Rights may be granted under the Plan from time to time in substitution for
options held by individuals providing services to corporations or other entities who become
employees, Consultants, or Directors as a result of a merger or consolidation or other business
transaction with the Company or any Affiliate.



VIII.     RESTRICTED STOCK AWARDS




     (a)     Forfeiture Restrictions To Be Established by the Committee. Shares of Common Stock that
are the subject of a Restricted Stock Award shall be subject to restrictions on disposition by the
Participant and an obligation of the Participant to forfeit and surrender the shares to the Company
under certain circumstances (the “Forfeiture Restrictions”). The Forfeiture Restrictions shall be
determined by the Committee in its sole discretion, and the Committee may provide that the
Forfeiture Restrictions shall lapse upon (i) the attainment of one or more performance targets
established by the Committee, (ii) the Participant’s continued employment with the Company or an
Affiliate or continued service as a Consultant or Director for a specified period of time, (iii)
the occurrence of any event or the satisfaction of any other condition specified by the Committee
in its sole discretion, or (iv) a combination of any of the



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foregoing. Each Restricted Stock Award may have different Forfeiture Restrictions, in the
discretion of the Committee.



     (b)     Other Terms and Conditions. Common Stock awarded pursuant to a Restricted Stock Award
shall be represented by a stock certificate registered in the name of the Participant. Unless
provided otherwise in a Restricted Stock Agreement, the Participant shall have the right to receive
dividends with respect to Common Stock subject to a Restricted Stock Award, to vote Common Stock
subject thereto and to enjoy all other stockholder rights, except that (i) the Participant shall
not be entitled to delivery of the stock certificate until the Forfeiture Restrictions have
expired, (ii) the Company shall retain custody of the stock until the Forfeiture Restrictions have
expired, (iii) the Participant may not sell, transfer, pledge, exchange, hypothecate or otherwise
dispose of the stock until the Forfeiture Restrictions have expired, and (iv) a breach of the terms
and conditions established by the Committee pursuant to the Restricted Stock Agreement shall cause
a forfeiture of the Restricted Stock Award. At the time of such Award, the Committee may, in its
sole discretion, prescribe additional terms, conditions or restrictions relating to Restricted
Stock Awards, including, but not limited to, rules pertaining to the termination of employment or
service as a Consultant or Director (by retirement, disability, death or otherwise) of a
Participant prior to expiration of the Forfeitures Restrictions. Such additional terms, conditions
or restrictions shall be set forth in a Restricted Stock Agreement made in conjunction with the
Award.



     (c)     Payment for Restricted Stock. The Committee shall determine the amount and form of any
payment for Common Stock received pursuant to a Restricted Stock Award, provided that in the
absence of such a determination, a Participant shall not be required to make any payment for Common
Stock received pursuant to a Restricted Stock Award, except to the extent otherwise required by
law.



     (d)     Committee’s Discretion to Accelerate Vesting of Restricted Stock Awards. The Committee
may, in its discretion and as of a date determined by the Committee, fully vest any or all Common
Stock awarded to a Participant pursuant to a Restricted Stock Award and, upon such vesting, all
restrictions applicable to such Restricted Stock Award shall terminate as of such date. Any action
by the Committee pursuant to this Subparagraph may vary among individual Participants and may vary
among the Restricted Stock Awards held by any individual Participant.



     (e)     Restricted Stock Agreements. At the time any Award is made under this Paragraph VIII, the
Company and the Participant shall enter into a Restricted Stock Agreement setting forth each of the
matters contemplated hereby and such other matters as the Committee may determine to be
appropriate. The terms and provisions of the respective Restricted Stock Agreements need not be
identical. Subject to the consent of the Participant, the Committee may, in its sole discretion,
amend an outstanding Restricted Stock Agreement from time to time in any manner that is not
inconsistent with the provisions of the Plan.



     (f)     Restricted Stock Units. Restricted stock awards may be made either as restricted common
stock or restricted stock units.



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IX.     RECAPITALIZATION OR REORGANIZATION




     (a)     No Effect on Right or Power. The existence of the Plan and the Awards granted hereunder
shall not affect in any way the right or power of the Board or the stockholders of the Company to
make or authorize any adjustment, recapitalization, reorganization or other change in the Company’s
or any Affiliate’s capital structure or its business, any merger or consolidation of the Company or
any Affiliate, any sale of all of the Common Stock of the Company, any issue of debt or equity
securities ahead of or affecting Common Stock or the rights thereof, the dissolution or liquidation
of the Company or any Affiliate or any sale, lease, exchange or other disposition of all or any
part of its assets or business or any other corporate act or proceeding.



     (b)     Subdivision or Consolidation of Shares: Stock Dividends. The shares with respect to which
Options may be granted are shares of Common Stock as presently constituted, but if, and whenever,
prior to the expiration of an Option theretofore granted, the Company shall effect a subdivision or
consolidation of shares of Common Stock or the payment of a stock dividend on Common Stock without
receipt of consideration by the Company, the number of shares of Common Stock with respect to which
such Option may thereafter be exercised (i) in the event of an increase in the number of
outstanding shares shall be proportionately increased, and the purchase price per share shall be
proportionately reduced, and (ii) in the event of a reduction in the number of outstanding shares
shall be proportionately reduced, and the purchase price per share shall be proportionately
increased. Any fractional share resulting from such adjustment shall be rounded up to the next
whole share.



     (c)     Recapitalizations and Company Changes. If the Company recapitalizes, reclassifies its
capital stock, or otherwise changes its capital structure (a “recapitalization”), the number and
class of shares of Common Stock covered by an Option theretofore granted shall be adjusted so that
such Option shall thereafter cover the number and class of shares of stock and securities to which
the Participant would have been entitled pursuant to the terms of the recapitalization if,
immediately prior to the recapitalization, the Participant had been the holder of record of the
number of shares of Common Stock then covered by such Option. If (i) the Company shall not be the
surviving entity in any merger or consolidation (or survives only as a subsidiary of an entity),
(ii) the Company sells, leases or exchanges or agrees to sell, lease or exchange all or
substantially all of its assets to any other person or entity, (iii) the Company is to be dissolved
and liquidated, (iv) any person or entity (other than SCF-IV, L.P. and its Affiliates), including a
“group” as contemplated by Section 13(d)(3) of the Securities Exchange Act of 1934, as amended,
acquires or gains ownership or control (including, without limitation, power to vote) of more than
50% of the outstanding shares of the Company’s voting stock (based upon voting power), or (v) as a
result of or in connection with a contested election of Directors, the persons who were Directors
of the Company before such election shall cease to constitute a majority of the Board (each such
event is referred to herein as a “Company Change”), no later than (x) 10 days after the approval by
the stockholders of the Company of such merger, consolidation, reorganization, sale, lease or
exchange of assets or dissolution or such election of Directors or (y) 30 days after a Company
Change of the type described in clause (iv), the Committee, acting in its sole discretion without
the consent or approval of any Participant, shall effect one or more of the following alternatives,
which alternatives may vary among individual Participants and which may vary among Options held by
any individual Participant: (1) accelerate the time at which Options then outstanding may be
exercised so that such Options may be exercised in full for a



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limited period of time on or before a specified date (before or after such Company Change)
fixed by the Committee, after which specified date all unexercised Options and all rights of
Participants thereunder shall terminate, (2) require the mandatory surrender to the Company by
selected Participants of some or all of the outstanding Options held by such Participants
(irrespective of whether such Options are then exercisable under the provisions of the Plan) as of
a date, before or after such Company Change, specified by the Committee, in which event the
Committee shall thereupon cancel such Options and cause the Company to pay to each Participant an
amount of cash per share equal to the excess, if any, of the amount calculated in Subparagraph (d)
below (the “Change of Control Value”) of the shares subject to such Option over the exercise
price(s) under such Options for such shares, or (3) make such adjustments to Options then
outstanding and the Plan as the Committee deems appropriate to reflect such Company Change
(provided, however, that the Committee may determine in its sole discretion that no adjustment is
necessary to Options then outstanding), including, without limitation, adjusting an Option to
provide that the number and class of shares of Common Stock covered by such Option shall be
adjusted so that such Option shall thereafter cover securities of the surviving or acquiring
corporation or other property (including, without limitation, cash) as determined by the Committee
in its sole discretion.



     (d)     Change of Control Value. For the purposes of clause (2) in Subparagraph (c) above, the
“Change of Control Value” shall equal the amount determined in clause (i), (ii) or (iii), whichever
is applicable, as follows: (i) the per share price offered to stockholders of the Company in any
such merger, consolidation, sale of assets or dissolution transaction, (ii) the price per share
offered to stockholders of the Company in any tender offer or exchange offer whereby a Company
Change takes place, or (iii) if such Company Change occurs other than pursuant to a tender or
exchange offer, the fair market value per share of the shares into which such Options being
surrendered are exercisable, as determined by the Committee as of the date determined by the
Committee to be the date of cancellation and surrender of such Options. In the event that the
consideration offered to stockholders of the Company in any transaction described in this
Subparagraph (d) or Subparagraph (c) above consists of anything other than cash, the Committee
shall determine the fair cash equivalent of the portion of the consideration offered which is other
than cash.



     (e)     Other Changes in the Common Stock. In the event of changes in the outstanding Common
Stock by reason of recapitalizations, reorganizations, mergers, consolidations, combinations,
split-ups, split-offs, spin-offs, exchanges or other relevant changes in capitalization or
distributions to the holders of Common Stock occurring after the date of the grant of any Award and
not otherwise provided for by this Paragraph IX, such Award and any agreement evidencing such Award
shall be subject to adjustment by the Committee at its discretion as to the number and price of
shares of Common Stock or other consideration subject to such Award. In the event of any such
change in the outstanding Common Stock or distribution to the holders of Common Stock, the
aggregate number of shares available under the Plan shall be appropriately adjusted by the
Committee, whose determination shall be conclusive.



     (f)     Stockholder Action. Any adjustment provided for in the above Subparagraphs shall be
subject to any required stockholder action.



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     (g)     No Adjustments unless Otherwise Provided. Except as hereinbefore expressly provided, the
issuance by the Company of shares of stock of any class or securities convertible into shares of
stock of any class, for cash, property, labor or services, upon direct sale, upon the exercise of
rights or warrants to subscribe therefor, or upon conversion of shares or obligations of the
Company convertible into such shares or other securities, and in any case whether or not for fair
value, shall not affect, and no adjustment by reason thereof shall be made with respect to, the
number of shares of Common Stock subject to Awards theretofore granted or the purchase price per
share, if applicable.



X.     AMENDMENT AND TERMINATION OF THE PLAN




     The Board in its discretion may terminate the Plan at any time with respect to any shares of
Common Stock for which Awards have not theretofore been granted. The Board shall have the right to
alter or amend the Plan or any part thereof from time to time; provided that no change in the Plan
may be made that would impair the rights of a Participant with respect to an Award theretofore
granted without the consent of the Participant, and provided, further, that the Board may not,
without approval of the stockholders of the Company, amend the Plan to (a) increase the maximum
aggregate number of shares that may be issued under the Plan or (b) change the class of individuals
eligible to receive Awards under the Plan.



XI.     MISCELLANEOUS




     (a)     Shareholders Agreement. Every Participant who receives shares of Common Stock pursuant to
this Plan, whether pursuant to the exercise of an Option, receipt of a Restricted Stock Award or
otherwise, shall be subject to the terms of the Shareholders Agreement among the Company, SCF-IV,
L.P., HSBC Capital (Canada) Inc. and certain other persons dated September 20, 2002, as the same
may be amended or restated from time to time (the “Shareholders Agreement”). Any Option Agreement
or Restricted Stock Agreement shall provide that the Participant specifically acknowledges and
agrees that the Participant is bound by the terms of the Shareholders Agreement when Common Stock
is issued to him and agrees that, if requested by the Company at any time, the Participant (or
other person in whose name the Common Stock is registered) will immediately execute and deliver a
counterpart execution page to the Shareholders Agreement to the Company so as to better evidence
that the Participant is a party thereto. [This Section shall no longer apply if and when there is
consummated a firm underwritten public offering of Common Stock of the Company pursuant to a
registration statement filed with the Securities and Exchange Commission.]



     (b)     No Right To An Award. Neither the adoption of the Plan nor any action of the Board or of
the Committee shall be deemed to give an employee, Consultant, or Director any right to be granted
an Option, a right to a Restricted Stock Award, or any other rights hereunder except as may be
evidenced by an Option Agreement or a Restricted Stock Agreement duly executed on behalf of the
Company, and then only to the extent and on the terms and conditions expressly set forth therein.
The Plan shall be unfunded. The Company shall not be required to establish any special or separate
fund or to make any other segregation of funds or assets to assure the performance of its
obligations under any Award.



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     (c)     No Employment/Membership Rights Conferred. Nothing contained in the Plan shall (i) confer
upon any employee or Consultant any right with respect to continuation of employment or of a
consulting or advisory relationship with the Company or any Affiliate or (ii) interfere in any way
with the right of the Company or any Affiliate to terminate his or her employment or consulting or
advisory relationship at any time. Nothing contained in the Plan shall confer upon any Director
any right with respect to continuation of membership on the Board.



     (d)     Other Laws: Withholding. The Company shall not be obligated to issue any Common Stock
pursuant to any Award granted under the Plan at any time when the shares covered by such Award have
not been registered under the Securities Act of 1933, as amended, or in respect of which a
prospectus has not been filed in the applicable Canadian provinces, as applicable, and such other
state, provincial and federal laws, rules and regulations as the Company or the Committee deems
applicable and, in the opinion of legal counsel for the Company, there is no exemption from the
registration requirements of such laws, rules and regulations available for the issuance and sale
of such shares. No fractional shares of Common Stock shall be delivered, nor shall any cash in
lieu of fractional shares be paid. The Company shall have the right to deduct in connection with
all Awards any taxes required by law to be withheld and to require any payments required to enable
it to satisfy its withholding obligations.



     (e)     No Restriction on Corporate Action. Nothing contained in the Plan shall be construed to
prevent the Company or any Affiliate from taking any action which is deemed by the Company or such
Affiliate to be appropriate or in its best interest, whether or not such action would have an
adverse effect on the Plan or any Award made under the Plan. No Participant, beneficiary or other
person shall have any claim against the Company or any Affiliate as a result of any such action.



     (f)     Restrictions on Transfer. An Award (other than an Incentive Stock Option, which shall be
subject to the transfer restrictions set forth in Paragraph VII(c)) shall not be transferable
otherwise than (i) by will or the laws of descent and distribution, (ii) pursuant to 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, or (iii) with the consent of the
Committee.



     (g)     Code Section 409A Standards. The Plan, and all Awards, Option Agreements and Restricted
Stock Agreements pursuant to the Plan, shall be effected, interpreted, and applied in a manner
consistent with the standards for nonqualified deferred compensation plans established by Section
409A of the Code and its interpretive regulations (the “Section 409A Standards”). To the extent
that any terms of the Plan, an Award, an Option Agreement or Restricted Stock Agreement would
subject any Participant to gross income inclusion, interest, or additional tax pursuant to, or
would be prohibited by, Code Section 409A, those terms are to that extent superseded by the
applicable Section 409A Standards.



     (h)     Governing Law. The Plan shall be governed by, and construed in accordance with, the laws
of the State of Delaware, without regard to conflicts of law principles thereof.




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