exv10w47






Exhibit 10.47




AMENDED AND RESTATED

COMPLETE PRODUCTION SERVICES, INC.

EXECUTIVE AGREEMENT




          This Amended and Restated Executive Agreement (this “Agreement”) is made effective as of
December 31, 2008 between Complete Production Services, Inc. (“Complete Production Services”), a
Delaware corporation and its subsidiaries (collectively, the “Company”) and                                         
(“Executive”).




          WHEREAS, the Company and Executive entered into the Executive Agreement, dated as of
                     (the “Prior Agreement”);




          WHEREAS, the Company currently employs Executive;




          WHEREAS, the Company and Executive desire to amend and restate the Prior Agreement to conform
the Prior Agreement to the requirements of Section 409A of the Internal Revenue Code of 1986, as
amended, and the Treasury Regulations and Internal Revenue Service guidance issued thereunder
(“Section 409A”) and to make certain other changes;




          WHEREAS, the Compensation Committee of the Board of Directors of Complete Production Services
(the “Board”) has authorized this amendment and restatement of the Prior Agreement; and




          WHEREAS, this amendment and restatement amends and supersedes the Prior Agreement.




          NOW, THEREFORE, in consideration of Executive’s continued employment as an executive officer
with the Company and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Company and Executive agree as follows:





	1.	 	Term of Agreement






	 	A.	 	This Agreement shall be for an initial term that continues in effect, through
the second anniversary of the Effective Date. The term of this Agreement shall
automatically be extended for one or more additional terms of one (1) year, as of each
anniversary date of the Effective Date that occurs while this Agreement is in effect.
The term of Agreement, however, may be terminated by written notice of termination of
this Agreement provided to Executive, and in the event any such termination notice is
delivered to Executive then, notwithstanding the preceding sentence concerning
automatic renewals, the term of this Agreement shall be deemed terminated effective as
of December 31 of the second full calendar year following the date on which such notice
of termination of the Agreement is delivered to Executive.




 









 






	 	B.	 	Notwithstanding the foregoing, the term of this Agreement shall terminate upon
the expiration of the “Severance Payout Period” or the “Change of Control Payout
Period,” as applicable, subject to all rights and benefits hereunder having been paid
and satisfied in full.






	2.	 	Certain Definitions
	 
	 	 	The following capitalized terms shall have the meanings set forth below.






	 	A.	 	“Cause” shall mean:






	 	(i)	 	Executive’s conviction of a felony involving moral turpitude,
dishonesty or a breach of trust as regards the Company;
	 
	 	(ii)	 	Executive’s commission of any act of theft, fraud, embezzlement
or misappropriation against the Company that is materially injurious to it
regardless of whether a criminal conviction is obtained;
	 
	 	(iii)	 	Executive’s willful and continued failure to devote
substantially all of his business time to the Company’s business affairs
(excluding failures due to illness, incapacity, vacations, incidental civic
activities and incidental personal time), which failure is not remedied within
a reasonable time after written demand is delivered by the Company, which
demand specifically identifies the manner in which the Company believes that
Executive has failed to devote substantially all of his business time to the
Company’s business affairs;
	 
	 	(iv)	 	Executive’s unauthorized disclosure of confidential information
of the Company that is materially injurious to the Company; or
	 
	 	(v)	 	Executive’s knowing or willful material violation of federal or
state securities laws, as determined in good faith by the Company’s Board of
Directors.






     For purposes of this definition, no act, or failure to act, on Executive’s part
shall be deemed “willful” unless done, or omitted to be done, by Executive not in
good faith and without reasonable belief that Executive’s action or omission was in
the best interest of the Company.




	 	B.	 	“Change of Control” of the Company will occur for purposes of this
Agreement if:






	 	(i)	 	Any person or group of persons is or becomes the “beneficial
owner” (as defined in Rule 13d-3 under the Securities Exchange Act of 1934),
directly or indirectly, of securities in the Company representing 20% or more
of the combined voting power of the Company’s outstanding securities;




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	 	(ii)	 	A change in the majority of the membership of the Board
occurs without approval by two-thirds of the Directors who are Continuing
Directors. For these purposes, Continuing Directors are persons who (i) were
Directors on the Effective Date or (ii) are new Directors whose election was
approved by two-thirds of the members of the Board who were Directors on the
Effective Date (“Approved Directors”), or (iii) are new Directors whose
election was approved by two-thirds of the members of the Board who were
Directors on the Effective Date or are subsequently Approved Directors;
	 
	 	(iii)	 	The Company is merged, consolidated or combined with another
corporation or entity, including without limitation, a reverse or forward
triangular merger, and the Company’s stockholders prior to such transaction
own less than 55% of the outstanding voting securities of the surviving or
resulting corporation or entity after the transaction;
	 
	 	(iv)	 	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
	 
	 	(v)	 	There is a disposition, transfer, sale or exchange of all or
substantially all of the Company’s assets, or stockholder approval of a plan
of liquidation or dissolution of the Company;






provided, that for purposes of this definition, the term “substantially all” in
paragraph (v) shall mean eighty-five percent (85%) or more, and a transaction or
event described in paragraph (i), (ii), (iii), (iv) or (v) shall constitute a
“Change of Control” only if such transaction or event constitutes a “change in
control event,” as defined in Treasury Regulation Section 1.409A-3(i)(5), with
respect to Executive.




	 	C.	 	“Change of Control Payout Period” shall mean the period of [two
(2)]1 [two and a half (2.5)]2 years following the Date of
Termination of Executive, which termination is covered by Section 5 hereof.
	 
	 	D.	 	“Code” means the Internal Revenue Code of 1986, as amended.
	 
	 	E.	 	“Date of Termination” shall mean the date specified in the Notice of
Termination relating to termination of Executive’s employment with the Company;
provided that such date shall not be less than twenty (20) days nor more than
forty-five (45) days following: (i) the date specified by the Company in the notice of
discharge of Executive’s employment without Cause, or (ii) the date specified by the
Executive in the notice of Executive’s resignation for Good Reason.







 




			
	1	 	For Messrs. Boyd, Burke, Weisgarber, Suprenant,
Kaufman, Songer and Nightingale
	 
	2	 	For Messrs. Maroney, Nibling, Moore and Bayardo




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	 	F.	 	“Effective Date” shall mean November 13, 2006.
	 
	 	G.	 	“Executive” shall mean the executive of the Company who is a party to
this Agreement and in the event of the Executive’s death after a “qualifying”
termination pursuant to Section 4 hereof or a Change of Control pursuant to Section 5
hereof, then the term “Executive” shall include his estate.
	 
	 	H.	 	“Good Reason” shall mean:






	 	(i)	 	a failure to re-elect or appoint the Executive to any corporate
office or directorship held at the time of the Change of Control or a material
reduction in Executive’s authority, duties or responsibilities (including
status, offices, titles and reporting requirements) or if Executive is assigned
duties or responsibilities inconsistent in any material respect from those of
Executive at the time of the relevant Change of Control all on the basis of
which Executive makes a good faith determination that the terms of his
employment have been detrimentally and materially affected;
	 
	 	(ii)	 	a material reduction of Executive’s compensation, benefits or
perquisites, including annual base salary, annual bonus, intermediate or
long-term cash or equity incentive opportunities or plans from those in effect
prior to the Change of Control;
	 
	 	(iii)	 	the Company fails to obtain a written agreement satisfactory
to Executive from any successor or assigns of the Company to assume and perform
this Agreement as provided in Section 10 hereof; or
	 
	 	(v)	 	the Company requires Executive to be based at any office
located more than fifty (50) miles from the Company’s current offices without
Executive’s consent.






	 	I.	 	“Involuntary Termination” shall mean the Executive’s Separation from
Service by reason of a termination of employment by the Company other than for Cause.
	 
	 	J.	 	“Notice of Termination” shall mean a written notice delivered to the
other party indicating the specific termination provision in this Agreement relied upon
for termination of Executive’s employment and shall set forth in reasonable detail the
facts and circumstances claimed to provide a basis for termination of Executive’s
employment under the provision so indicated. Any purported termination by either party
other than pursuant to a Notice of Termination shall not be effective. 
	 
	 	K.	 	“Option Plans” shall mean the Company’s stock option plans, incentive
plans, equity participation plans, or other similar plans, and any stock option
agreements or other equity award agreements used in connection therewith.
	 
	 	L.	 	“Section 409A Payments” shall have the meaning given to such term in
Section 8(G) hereof.




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	 	M.	 	“Separation from Service” with respect to Executive shall mean a
“separation from service” as defined in Treasury Regulation Section 1.409A-1(h), with
respect to the Company, and the service recipient that includes the Company.
	 
	 	N.	 	“Severance Payout Period” shall mean the period of [sixteen (16)
months]3 [twenty (20) months]4 following the Date of Termination
of Executive, which termination is covered by Section 4 hereof.
	 
	 	O.	 	“Specified Employee” shall be determined in accordance with Section
409A(a)(2)(B)(i) of the Code and Treasury Regulation Section 1.409A-1(i). For these
purposes, Executive’s compensation shall be determined under Treasury Regulation
Section 1.415(c)-2(a) and applied as if the Company were not using any safe harbor
provided in Treasury Regulation Section 1.415(c)-2(d), were not using any of the
elective special timing rules provided in Treasury Regulation Section 1.415(c)-2(e),
and were not using any of the elective special rules provided in Treasury Regulation
Section 1.415(c)-2(g).
	 
	 	P.	 	“Termination Base Salary” shall mean Executive’s base salary at the
rate in effect at the time the Notice of Termination is given or, for purposes of a
Change of Control, if a greater amount, Executive’s base salary at the rate in effect
immediately prior to the Change of Control.
	 
	 	Q.	 	“Termination Bonus” shall mean the greater of (i) [75%]5
[60%]6 [50%]7 of the Termination Base Salary, or (ii) the highest
annual bonus earned during any of the three full fiscal years preceding the Date of
Termination.
	 
	 	R.	 	“Voluntary Termination for Good Reason” shall mean the Executive’s
Separation from Service by reason of Executive’s resignation from employment with the
Company for Good Reason.






	3.	 	Termination for Cause. The Company may terminate Executive for Cause at any time, including
following a Change of Control, upon written notice to the Executive.
	 
	4.	 	Standard Severance Plan. Except as provided in Section 5 hereof, in the event Executive has
an Involuntary Termination, the Executive shall receive the following compensation and
benefits from the Company provided under this Section 4. The payments made under Sections
4(B) and (C) shall be paid in a cash lump sum on such date determined by the Company within
the ten (10) day period commencing on the 60th day after the date of Executive’s
Separation from Service; provided, however, that if Executive is a Specified Employee on the
date of Executive’s Separation from Service, any payments made under Sections 4(B) and (C)
shall be paid as provided in Section 15(C) hereof.







 




			
	3	 	For Messrs. Boyd, Burke, Weisgarber, Suprenant,
Kaufman, Songer and Nightingale
	 
	4	 	For Messrs. Maroney, Nibling, Moore and Bayardo
	 
	5	 	For Messrs. Boyd, Burke, Kaufman, Moore, Nightingale,
Songer and Suprenant
	 
	6	 	For Mr. Bayardo
	 
	7	 	For Messrs. Maroney, Nibling, and Weisgarber





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	 	A.	 	The Company shall pay to Executive when otherwise due Executive’s Termination
Base Salary through the Date of Termination.
	 
	 	B.	 	The Company shall pay to Executive an amount equal to [1.33]8
[1.67]9 times the sum of Executive’s Termination Base Salary plus
Termination Bonus.
	 
	 	C.	 	In consideration of service through the Date of Termination, the Company
shall pay to Executive an amount equal to
[75%]10 

[60%]11
[50%]12 of the Termination Base Salary, multiplied by a fraction, the
numerator of which equals the number of days from the beginning of the calendar year
through and including the Date of Termination, and the denominator of which equals
365.
	 
	 	D.	 	Notwithstanding any provisions to the contrary in any of the Option Plans,
(i) all outstanding unvested stock options of Executive shall be and become fully
vested and exercisable as to all shares of stock covered thereby, and (ii) all
outstanding shares of restricted stock, restricted stock units, performance shares and
performance units of Executive shall be and become 100% vested and all restrictions
thereon shall lapse, in each case as of the Date of Termination.13
	 
	 	E.	 	For all options granted after the Effective Date, Executive (or in the event
of his death, his estate) shall be entitled to exercise his vested options until 12
months following the Date of Termination. Notwithstanding the provisions of this
Section E, no option may be exercised at any time past the term of such option (or, if
earlier, the tenth anniversary of the original date of grant).
	 
	 	F.	 	The Company shall provide Executive with additional benefits described in
Section 6 hereof.






	5.	 	Change of Control Severance Plan. In the event that Executive has either a Voluntary
Termination for Good Reason or an Involuntary Termination within two (2) years following a
Change of Control, the Executive shall receive the following compensation and benefits from
the Company provided under this Section 5, and such compensation and benefits shall be in lieu
of the compensation and benefits under Section 4. The payments made under Sections 5(B), (C),
and (D) shall be paid in a cash lump sum on such date determined by the Company within the ten
(10) day period commencing on the 60th day after the date of the Executive’s
Separation from Service; provided, however, that if Executive is a Specified Employee on the
date of Executive’s Separation from Service, any payments made under Sections 5(B), (C), and
(D) shall be paid as provided in Section 15(C) hereof.







 




			
	8	 	For Messrs. Boyd, Burke, Weisgarber, Suprenant,
Kaufman, Songer and Nightingale
	 
	9	 	For Messrs. Maroney, Nibling, Moore and Bayardo
	 
	10	 	For Messrs. Boyd, Burke, Kaufman, Moore, Nightingale,
Songer and Suprenant
	 
	11	 	For Mr. Bayardo
	 
	12	 	For Messrs. Maroney, Nibling, and Weisgarber
	 
	13	 	For Messrs. Maroney, Nibling, and Moore





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	 	A.	 	The Company shall pay to Executive when otherwise due Termination Base
Salary through the Date of Termination.
	 
	 	B.	 	The Company shall pay to Executive an amount equal to [two]14
[two and a half]15 times the sum of Executive’s Termination Base Salary
plus Termination Bonus.
	 
	 	C.	 	In consideration of service through the Date of Termination, the Company
shall pay to Executive an amount equal to [75%]16 

[60%]17
[50%]18 of the Termination Base Salary, multiplied by a fraction, the
numerator of which equals the number of days from the beginning of the calendar year
through and including the Date of Termination, and the denominator of which equals
365.
	 
	 	D.	 	The Company shall pay to executive an amount equal to [two]19
[two and a half]20 times the amount the Company would be required to
contribute on Executive’s behalf under all qualified pension, nonqualified pension,
profit sharing, 401(k), deferred compensation and supplemental plans based on
Executive’s Termination Base Salary and the applicable maximum Company contribution
percentages in effect as of the Date of Termination (which maximum Company
contribution currently would be four percent (4%) of Executive’s Termination Base
Salary); provided, that such payment is determined and made in a manner that
complies with Treasury Regulation Section 1.409A-3(i).
	 
	 	E.	 	Effective as of the Date of Termination, Executive shall become and be
fully vested in Executive’s accrued benefits under all qualified pension,
nonqualified pension, profit sharing, 401(k), deferred compensation and supplemental
plans maintained by the Company for Executive’s benefit, to that the extent the
acceleration of vesting of such benefits would not violate any applicable law or
require the Company to accelerate the vesting of the accrued benefits of all
participants in such plan or plans.
	 
	 	F.	 	For all options granted after the Effective Date, Executive (or in the
event of his death, his estate) shall be entitled to exercise his vested options
until 12 months following the Date of Termination. Notwithstanding the provisions
of this Section F, no option may be exercised at any time past the term of such
option (or, if earlier, the tenth anniversary of the original date of grant).







 




			
	14	 	For Messrs. Boyd, Burke, Weisgarber, Suprenant,
Kaufman, Songer and Nightingale
	 
	15	 	For Messrs. Maroney, Nibling, Moore and Bayardo
	 
	16	 	For Messrs. Boyd, Burke, Kaufman, Moore, Nightingale,
Songer and Suprenant
	 
	17	 	For Mr. Bayardo
	 
	18	 	For Messrs. Maroney, Nibling, and Weisgarber
	 
	19	 	For Messrs. Boyd, Burke, Weisgarber, Suprenant,
Kaufman, Songer and Nightingale
	 
	20	 	For Messrs. Maroney, Nibling, Moore and Bayardo





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	 	G.	 	The Company shall provide Executive with additional benefits described in
Section 6 hereof.
	 
	 	H.	 	In the event Executive has an Involuntary Termination, and a Change of
Control occurs within the six (6) month period commencing on the date of such
Involuntary Termination, then Executive shall be entitled to receive the
compensation and benefits described in Section 5 hereof as if such Involuntary
Termination had occurred within two (2) years following the Change of Control, in
lieu of the compensation and benefits described in Section 4 hereof. The
compensation and benefits described in Section 5 that are to be paid pursuant to
this Section 5(H) shall be reduced by any compensation and benefits previously paid
under Section 4. The amounts to be paid pursuant to this Section 5(H) shall be paid
to Executive on such date determined by the Company within the ten (10) day period
commencing on the later of: (i) the 60th day following the date of
Executive’s Separation from Service, or (ii) the date of the Change of Control.






	6.	 	Additional Benefits.






	 	A.	 	Health, Dental, Disability and Life Insurance Benefits. Throughout the
term of the Severance Payout Period for a termination of Executive’s employment covered
by Section 4, or of the Change of Control Payout Period for a termination of
Executive’s employment covered by Section 5, the Company shall provide Executive and
Executive’s eligible family members, based on the cost sharing arrangement in effect
between Executive (or persons of similar position) and the Company on the Date of
Termination, with medical and dental health insurance benefits and disability and life
insurance coverage at least equal to those in effect for Executive or persons of
similar position on the Date of Termination or, if more favorable to Executive, as in
effect generally at any time during such Severance Payout Period or Change of Control
Payout Period, as applicable. Notwithstanding the foregoing, if Executive becomes
re-employed and is eligible to receive medical or dental health insurance benefits or
disability insurance coverage under such successor employer’s plans, the Company’s
obligations under this Section 6(A) shall be reduced to the extent comparable benefits
are actually received by Executive during the Severance Payout Period or Change of
Control Payout Period, as applicable, and any such benefits actually received by
Executive shall be promptly reported by Executive to the Company. For the sake of
clarity, Executive shall be entitled to all of the insurance benefits provided by this
Section 6(A), and such benefits shall not be mitigated, in the event that as of the
Date of Termination or at any time during the Severance Payout Period or Change of
Control Payout Period, as applicable, Executive is receiving medical, dental, health,
disability or life insurance benefits through the plans or obligations of a former
employer.
	 
	 	 	 	In the event Executive is ineligible under the terms of the Company’s benefit plans
or programs to be so covered as required by this Section 6(A), the Company shall
provide Executive with substantially equivalent insurance coverage through




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	 	 	 	the conversion to individual insurance coverage or other sources. Any benefits
provided under this Section 6(A) shall be provided through insurance maintained by
the Company under the Company benefit plans and in a manner that complies with
Treasury Regulation Section 1.409A-1(a)(5).
	 
	 	 	 	In the event that the Company is unable to provide the benefits required under this
Section 6(A) through insurance coverage as described above, the Company will provide
Executive with a lump sum cash payment equal to: (i) the monthly cost to the
Company of providing Executive (or persons of similar position) and Executive’s
dependents with such benefits coverage, determined as of the Date of Termination,
multiplied by (ii) the number of months comprising the Severance Payout Period or
the Change of Control Payout Period, as applicable. In addition, if such lump sum
payment is payable, the Company shall make an additional gross-up payment to
Executive in an amount such that the net amount of the lump sum payment and such
additional gross-up payment retained by Executive, after the calculation and
deduction of all federal, state and local income tax and employment tax on such lump
sum payment and additional gross-up payment, and taking into account any lost or
reduced tax deductions on account of such gross-up payment, shall be equal to such
lump sum payment.
	 
	 	 	 	Any lump sum cash payment and related gross-up payment required by this Section 6(A)
shall be paid on such date determined by the Company within the ten (10) day period
commencing on the 60th day following the date of Executive’s Separation
from Service. Pursuant to Section 5(H), in the event Executive has an Involuntary
Termination described in Section 4 hereof, and a Change of Control occurs within the
six (6) month period commencing on the date of such Involuntary Termination, then
Executive shall be entitled to receive the benefits described in this Section 6(A)
as if such Involuntary Termination had occurred within two (2) years following the
Change of Control and determined by reference to the Change of Control Payout
Period. The benefits that are to be paid pursuant to this Section 6(A) in the event
of a Change of Control following Executive’s Involuntary Termination shall be
reduced by any payment or benefits previously paid under this Section 6(A) in
connection with Executive’s Involuntary Termination, and shall be paid on such date
determined by the Company within the ten (10) day period commencing on the later of:
(i) the 60th day following the date of Executive’s Separation from
Service, or (ii) the date of the Change of Control. Notwithstanding anything in
this Section 6(A) to the contrary, if Executive is a Specified Employee on the date
of the Separation from Service, any lump sum cash payment and related gross-up
payment made under Section this 6(A) shall be paid as provided in Section 15(C)
hereof. Any additional gross-up payment required under this Section 6(A) shall be
paid in a manner that complies with Treasury Regulation Section 1.409A-3(i)(1)(v).
	 
	 	B.	 	Automobile Allowance Benefit. The Company shall provide Executive with
a lump sum cash payment, in lieu of an automobile allowance, equal to Executive’s
monthly car allowance in effect on the date of the Date of Termination, multiplied




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	 	 	 	by the number of months comprising the Severance Payout Period or Change of Control
Payout Period, as applicable. The lump sum cash payment required by this Section
6(B) shall be paid on such date determined by the Company within the ten (10) day
period commencing on the 60th day following the date of Executive’s
Separation from Service. Pursuant to Section 5(H), in the event Executive has an
Involuntary Termination described in Section 4 hereof, and a Change of Control
occurs within the six (6) month period commencing on the date of such Involuntary
Termination, then Executive shall be entitled to receive the benefits described in
this Section 6(B) as if such Involuntary Termination had occurred within two (2)
years following the Change of Control and determined by reference to the Change of
Control Payout Period. The benefits that are to be paid pursuant to this Section
6(B) in the event of a Change of Control following Executive’s Involuntary
Termination shall be reduced by any payment or benefits previously paid under this
Section 6(B) in connection with Executive’s Involuntary Termination, and shall be
paid on such date determined by the Company within the ten (10) day period
commencing on the later of: (i) the 60th day following the date of
Executive’s Separation from Service, or (ii) the date of the Change of Control.
Notwithstanding anything in this Section 6(B) to the contrary, if Executive is a
Specified Employee on the date of the Separation from Service, any payment made
under this Section 6(B) shall be paid as provided in Section 15(C) hereof.
	 
	 	C.	 	[Benefits upon an I.E. Miller Change of Control. In the event of an
I.E. Miller Change of Control (as such term is defined in Appendix A), the Executive
shall be entitled to the benefits set forth in Appendix A in accordance with the terms
and conditions thereof.]21






	7.	 	Accelerated Vesting of Certain Equity Awards Upon a Change of Control [or an I.E. Miller
Change of Control]22.
	 
	 	 	Notwithstanding any provisions to the contrary in any of the Option Plans, upon a Change of
Control [or an I.E. Miller Change of Control (as such term is defined in Appendix
A)]23: (i) all outstanding unvested stock options of Executive shall be and
become fully vested and exercisable as to all shares of stock covered thereby, and (ii) all
outstanding shares of restricted stock, restricted stock units, performance shares and
performance units of Executive shall be and become 100% vested and all restrictions thereon
shall lapse, in each case as of the Change of Control [or an I.E. Miller Change of Control
(as such term is defined in Appendix A), as the case may be]24.
	 
	8.	 	Excise Taxes and Gross-Up Payments.25







 




			
	21	 	For Mr. Nightingale
	 
	22	 	For Mr. Nightingale
	 
	23	 	For Mr. Nightingale
	 
	24	 	For Mr. Nightingale
	 
	25	 	For Messrs. Maroney, Nibling, Moore and Bayardo





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	 	A.	 	If any payment or benefit received or to be received by Executive in connection
with a Change of Control of the Company or Executive’s Separation from Service (whether
payable pursuant to the terms of this Agreement, a stock option plan or any other plan
or arrangement with the Company) (the “Total Payments”) will be subject to the excise
tax imposed by Section 4999 of the Code, (the “Excise Tax”), then Executive shall be
entitled to receive from the Company an additional payment (the “Gross-Up Payment”) in
an amount such that the net amount of the Total Payments and the Gross-Up Payment
retained by Executive after the calculation and deduction of all Excise Taxes on the
Total Payments and all federal, state and local income tax, employment tax and Excise
Tax on the Gross-Up Payments provided for in this Section 8, and taking into account
any lost or reduced tax deductions on account of the Gross-Up Payments, shall be equal
to the Total Payments.
	 
	 	B.	 	All determinations required to be made under this Section 8, including whether
and when the Gross-Up Payments are required and the amount of such Gross-Up Payments,
and the assumptions to be utilized in arriving at such determinations (consistent with
the provisions of this Section 8), shall be made by the Company’s independent certified
public accountants (the “Accountants”). The Accountants shall provide Executive and
the Company with detailed supporting calculations with respect to such Gross-Up
Payments within fifteen (15) business days of the receipt of notice from Executive or
the Company that Executive has received or will receive a Total Payments. In the event
that the Accountants are also serving as accountant or auditor for the individual,
entity or group effecting the Change of Control, Executive shall appoint another
nationally recognized public accounting firm to make the determinations required
hereunder (which accounting firm shall then be referred to as the Accountants
hereunder). All fees and expenses of the Accountants shall be borne solely by the
Company. All determinations by the Accountants shall be binding upon the Company and
Executive.
	 
	 	C.	 	For the purposes of determining whether any of the Total Payments will be
subject to the Excise Tax and the amount of such Excise Tax, such Total Payments will
be treated as “parachute payments” within the meaning of Section 280G of the Code, and
all “parachute payments” in excess of the “base amount” (as defined under Section
280G(b)(3) of the Code) shall be treated as subject to the Excise Tax, unless and
except to the extent that in the opinion of the Accountants such payment (in whole or
in part) either do not constitute “parachute payments” or represent reasonable
compensation for services actually rendered (within the meaning of Section 280G(b)(4)
of the Code) in excess of the “base amount” or such “parachute payments” are otherwise
not subject to such Excise Tax. For purposes of determining the amount of the Gross-Up
Payments, Executive shall be considered to pay federal income taxes at the applicable
marginal rate of federal income taxation for the calendar year in which the Gross-Up
Payments are to be made and to pay any applicable state and local income taxes at the
applicable marginal rate of taxation for the calendar year in which the Gross-Up
Payments are to be made, net of Executive’s actual reduction in federal




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	 	 	 	income taxes that could be obtained from the deduction of such state or local taxes
if paid if such year (determined without regard to limitations on deductions based
upon the amount of Executive’s adjusted gross income); and to have otherwise
allowable deductions for federal, state and local income tax purposes at least equal
to those disallowed because of the inclusion of the Gross-Up Payments in Executive’s
adjusted gross income.
	 
	 	D.	 	To the extent practicable, any Gross-Up Payments shall be paid by the Company
at the time Executive is entitled to receive the Total Payments and in no event will
any Gross-Up Payments be paid later than thirty (30) days after the receipt by
Executive of the Accountant’s determination, subject to Sections 8(F) and (G) hereof.
As a result of uncertainty in the application of Section 4999 of the Code at the time
of the initial determination by the Accountants hereunder, it is possible that the
Gross-Up Payments made will have been an amount less than the Company should have paid
pursuant to this Section 8 (the “Underpayment”). In the event that the Company
exhausts its remedies pursuant to Section 8 and Executive is required to make a payment
of any Excise Tax, the Underpayment shall be promptly paid by the Company to or for
Executive’s benefit.
	 
	 	E.	 	Executive shall notify the Company in writing of any claim by the Internal
Revenue Service that, if successful, would require the payment by the Company of the
Gross-Up Payments. Such notification shall be given as soon as practicable after
Executive is informed in writing of such claim and shall apprise the Company of the
nature of such claim and the date on which such claim is requested to be paid.
Executive shall not pay such claim prior to the expiration of the thirty (30) day
period following the date on which Executive gives such notice to the Company (or such
shorter period ending on the date that any payment of taxes with respect to such claim
is due). If the Corporation notifies Executive in writing prior to the expiration of
such thirty (30) day period that it desires to contest such claim, Executive shall:






	 	(i)	 	give the Company any information reasonably requested by the
Company relating to such claim;
	 
	 	(ii)	 	take such action in connection with contesting such claim as
the Company shall reasonably request in writing from time to time, including,
without limitation, accepting legal representation with respect to such claim
by an attorney reasonably selected by the Company;
	 
	 	(iii)	 	cooperate with the Company in good faith in order to
effectively contest such claim; and
	 
	 	(iv)	 	permit the Company to participate in any proceedings relating
to such claims;





11









 






	 	 	 	provided, however, that the Company shall bear and pay directly all costs and
expenses incurred in connection with such contest and shall indemnify Executive for,
advance expenses to Executive for, defend Executive against and hold Executive
harmless from, on an after-tax basis, any Excise Tax or income tax imposed as a
result of such representation and payment of all related costs and expenses.
Without limiting the foregoing provisions of this Section 8, the Company shall
control all proceedings taken in connection with such contest and, at its sole
option, may pursue or forego any and all administrative appeals, proceedings,
hearings and conferences with the taxing authority in respect of such claim and may,
at its sole option, either direct Executive to pay the tax claimed and sue for a
refund or contest the claim in any permissible manner, and Executive agrees to
prosecute such contest to a determination before any administrative tribunal, in a
court of initial jurisdiction and in one or more appellate courts, as the Company
shall determine; provided, however, that if the Company directs Executive to pay
such claim and sue for a refund, the Company shall advance the amount of such
payment to Executive, on an interest-free basis, and shall indemnify Executive for,
advance expenses to Executive for, defend Executive against and hold Executive
harmless from, on an after-tax basis, any Excise Tax or income tax imposed with
respect to such advance or with respect to any imputed income with respect to such
advance (including as a result of any forgiveness by the Company of such advance);
provided, further, that any extension of the statute of limitations relating to the
payment of taxes for the taxable year of Executive with respect to which such
contested amount is claimed to be due is limited solely to such contested amount.
Furthermore, the Company’s control of the contest shall be limited to issues with
respect to which a Gross-Up Payments would be payable hereunder and Executive shall
be entitled to settle or contest, as the case may be, any other issue raised by the
Internal Revenue Service or any other taxing authority.
	 
	 	F.	 	The Gross-Up Payments, and any payments of income or other taxes to be paid
by the Company under this Section 8, shall be paid by the Company by the end of
Executive’s taxable year next following the Executive’s taxable year in which the
Executive remits the related taxes, subject to Section 8(G) hereof. Any costs and
expenses incurred by the Company on behalf of Executive under this Section 8 due to
any tax contest, audit or litigation shall be paid by the Company by the end of
Executive’s taxable year following Executive’s taxable year in which the taxes that
are the subject of the tax contest, audit or litigation are remitted to the taxing
authority, or where as a result of such tax contest, audit or litigation no taxes are
remitted, the end of Executive’s taxable year following Executive’s taxable year in
which the audit is completed or there is a final and nonappealable settlement or
other resolution of the contest or litigation, subject to Section 8(G) hereof. The
Gross-Up Payments, payment of income tax or other taxes, and costs and expenses to be
paid by the Company under this Section 8 shall be paid in a manner that complies with
Treasury Regulation Section 1.409A-3(i)(1)(v).




12









 






	 	G.	 	Notwithstanding any provision in this Section 8 to the contrary, to the
extent the Gross-Up Payments relate to any payments distributable upon Executive’s
Separation from Service and made under Sections 4(B), 4(C), 5(B), 5(C), 5(D), 5(E),
6(A) or 6(B) hereof (collectively, the “Section 409A Payments”) or any other
payments or benefits made under this Agreement that are subject to Section 409A, and
Executive is a Specified Employee on the date of Executive’s Separation from Service,
then such Gross-Up Payments, and any related payments of income, other taxes, costs
or expenses incurred by the Company on behalf of Executive under this Section 8,
shall be paid as provided in Section 15(C) hereof.






	9.	 	Mitigation.
	 
	 	 	Executive shall not be required to mitigate the amount of any payment provided for in this
Agreement by seeking other employment or otherwise nor, except as provided in Section 6(A),
shall the amount of any payment or benefit provided for in this Agreement be reduced by any
compensation earned or benefit received by Executive as the result of employment by another
employer or self-employment, by retirement benefits, by offset against any amount claimed to
be owed by Executive to the Company or otherwise.
	 
	10.	 	Successor Agreement.
	 
	 	 	The Company will require any successor (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all or substantially all of the business and/or assets of the
Company to expressly assume this Agreement and agree to perform this Agreement in the same
manner and to the same extent that the Company would be required to perform if no succession
had taken place. All references herein to the Company shall include the Successor entity.
Failure of the successor entity to so assume shall constitute a breach of this Agreement and
entitle Executive to the benefits hereunder as if triggered by a termination not for good
cause.
	 
	11.	 	Indemnity.






	 	A.	 	In any situation where under applicable law the Company has the power to
indemnify, advance expenses to and defend Executive in respect of any judgments, fines,
settlements, loss, cost or expense (including attorneys fees) arising from bona fide
claims of any nature related to or arising out of Executive’s activities as an agent,
employee, officer or director of the Company or in any other capacity on behalf of or
at the request of the Company, then the Company shall promptly on written request,
indemnify Executive, advance expenses (including attorney’s fees) to Executive and
defend Executive to the fullest extent permitted by applicable law, including but not
limited to making such findings and determinations and taking any and all such actions
as the Company may, under applicable law, be permitted to have the discretion to take
so as to effectuate such indemnification, advancement or defense. Such agreement by
the Company shall not be deemed to impair any other obligation of the Company




13









 






	 	 	 	respecting Executive’s indemnification or defense otherwise arising out of this or
any other agreement or promise of the Company under any statute.
	 
	 	B.	 	In the event that the Compensation Committee of the Board (the “Compensation
Committee”) approves that retired directors and executive officers receive directors
and officers’ liability insurance when they retire from the Company, and that the
premiums for such insurance are to be paid by the Company, then Executive shall be
provided with directors and officers’ liability insurance on and after the date that
Executive retires to the extent such insurance is so approved by the Compensation
Committee for retired executive officers.
	 
	 	C.	 	Any such indemnification and/or liability insurance shall be provided in a
manner that complies with Treasury Regulation Section 1.409A-1(b)(10).






	12.	 	Notice.
	 
	 	 	For the purpose of this Agreement, notices and all other communications provided for in this
Agreement shall be in writing and delivered by United States certified or registered mail
(return receipt requested, postage prepaid) or by courier guaranteeing overnight delivery or
by hand delivery (with signed receipt required), addressed to the respective addresses set
forth below, and such notice or communication shall be deemed to have been duly given two
(2) days after deposit in the mail, one (1) day after deposit with such overnight carrier or
upon delivery with hand delivery. The addresses set forth below may be changed by a writing
in accordance herewith.





	 	 	 	 	 	 	 
	 

	 	The Company:
	 	Executive:
	 	 
	 
	 	 	 	 	 	 
	 

	 	Complete Production Services, Inc.	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	11700 Katy Freeway, Suite 300	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Houston, Texas 77079	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Attn: Chief Executive Officer	 	 	 	 
	 

	 	with a copy to General Counsel	 	 	 	 







	13.	 	Dispute Resolution.
	 
	 	 	If any dispute arises out of this Agreement, the “complaining party” shall give the “other
party” written notice of such dispute. The other party shall have ten (10) business days to
resolve the dispute to the complaining party’s satisfaction. If the dispute is not resolved
by the end of such period, the complaining party may by written notice (the “Notice”) demand
arbitration of the dispute as set out below, and each party hereto expressly agrees to
submit to, and be bound by, such arbitration.






	 	A.	 	The Company will, within ten (10) business days of the Notice, appoint a single
arbitrator. The arbitrator will set the rules and timing of the arbitration, but will
generally follow the rules of the American Arbitration Association and this Agreement
where same are applicable and shall provide for written fact findings.




14









 






	 	B.	 	The arbitration hearing will in no event take place more than ninety (90) days
after the appointment of the arbitrator.
	 
	 	C.	 	The arbitration will take place in Houston, Texas unless otherwise unanimously
agreed to by the parties.
	 
	 	D.	 	The results of the arbitration and the decision of the arbitrators will be
final and binding on the parties and each party agrees and acknowledges that these
results shall be enforceable in a court of law.






	14.	 	Governing Law.
	 
	 	 	This Agreement will be governed by and construed in accordance with the internal substantive
laws, and not the choice of law rules, of the State of Texas.
	 
	15.	 	Compliance With Code Section 409A.






	 	A.	 	Compliance with Section 409A. Certain payments and benefits payable
under this Agreement (including, without limitation, the Section 409A Payments) are
intended to comply with the requirements of Section 409A. This Agreement shall be
interpreted in accordance with the applicable requirements of Section 409A. To the
extent the payments and benefits under this Agreement are subject to Section 409A, this
Agreement shall be interpreted, construed and administered in a manner that satisfies
the requirements of Sections 409A(a)(2), (3) and (4) and the Treasury Regulations
thereunder. As provided in Internal Revenue Notice 2007-86, notwithstanding any other
provision of this Agreement, with respect to an election or amendment to change a time
or form of payment under this Agreement made on or after January 1, 2008 and on or
before December 31, 2008, the election or amendment shall apply only with respect to
payments that would not otherwise be payable in 2008, and shall not cause payments to
be made in 2008 that would not otherwise be payable in 2008.
	 
	 	B.	 	Amendment of Agreement to Comply with Section 409A. If the Company and
Executive determine that any compensation, benefits or other payments that are payable
under this Agreement and intended to comply with Sections 409A(a)(2), (3) and (4) do
not comply with Section 409A, the Company and Executive agree to amend this Agreement,
or take such other actions as the Company and Executive deem reasonably necessary or
appropriate, to comply with the requirements of Section 409A, while preserving the
economic agreement of the parties. In the case of any compensation, benefits or other
payments that are payable under this Agreement and intended to comply with Sections
409A(a)(2), (3) and (4), if any provision of the Agreement would cause such
compensation, benefits or other payments to fail to so comply, such provision shall not
be effective and shall be null and void with respect to such compensation, benefits or
other payments, and such provision shall otherwise remain in full force and effect.




15









 






	 	C.	 	Delayed Distribution under Section 409A. If Executive is a Specified
Employee on the date of Executive’s Separation from Service, the Section 409A Payments
and any other payments or benefits under this Agreement that are subject to Section
409A shall be delayed in order to avoid a prohibited distribution under Section
409A(a)(2)(B)(i), and such payments or benefits shall be paid or distributed to
Executive during the thirty (30) day period commencing on the earlier of (i) the
expiration of the six-month period measured from the date of Executive’s Separation
from Service or (ii) the date of Executive’s death. Upon the expiration of the
applicable six-month period under Section 409A(a)(2)(B)(i), all payments deferred
pursuant to this Section 15(C) shall be paid in a lump sum payment to Executive (or
Executive’s estate, in the event of Executive’s death). Any remaining payments due
under the Agreement shall be paid as otherwise provided herein.






	16.	 	Non-Disparage, Non-Compete and Non-Solicitation Covenants; General Release.






	 	A.	 	Non-Disparage. As an additional inducement for the Company to enter
into this Agreement, Executive agrees that Executive shall refrain throughout the
term of this Agreement, and throughout the Severance Payout Period or the Change of
Control Payout Period, as applicable, from publishing any oral or written statements
about Company, any of its affiliates or any of Company’s or such affiliates’
directors, officers, employees, consultants, agents or representatives that (a) are
slanderous, libelous or defamatory, (b) disclose private information about or
confidential information of Company, any of its affiliates or any of Company’s or any
such affiliates’ business affairs, directors, officers, employees, consultants,
agents or representatives, or (c) place Company, any of its affiliates, or any of
Company’s or any such affiliates’ directors, officers, employees, consultants, agents
or representatives in a false light before the public. A violation or threatened
violation of this prohibition may be enjoined by the courts. The rights afforded
Company and its affiliates under this provision are in addition to any and all rights
and remedies otherwise afforded by law.
	 
	 	B.	 	Non-Solicitation. As an additional inducement for the Company to
enter into this Agreement, Executive agrees that throughout the Severance Payout
Period or the Change of Control Payout Period, as applicable, Executive shall not,
directly or indirectly knowingly induce any person in the employment of the Company
to (A) terminate such employment, or (B) accept employment, or enter into any
consulting arrangement, with anyone other than the Company.
	 
	 	C.	 	Non-Competition. As an inducement for the Company to enter into
this Agreement, Executive agrees throughout the Severance Payout Period or the Change
of Control Payout Period, as applicable, Executive shall not, anywhere in the world,
directly or indirectly (i) engage without the prior express written consent of the
Company, in any business or activity, whether as an employee, consultant, partner,
principal, agent, representative, stockholder (except as a holder of less than 2% of
the combined voting power of the outstanding stock of




16









 






	 	 	 	a publicly held company) or in any other individual, corporate or representative
capacity, or render any services or provide any advice to any business, activity,
person or entity, if Executive knows or reasonably should know that such business,
activity, service, person or entity, directly or indirectly, competes in any
material manner with the Business, or (ii) meaningfully assist, help or otherwise
support, without the prior express written consent of the Company, any person,
business, corporation, partnership or other entity or activity, whether as an
employee, consultant, partner, principal, agent, representative, stockholder
(other than in the capacity as a stockholder of less than 2% of the combined
voting power of the outstanding shares of stock of a publicly held company) or in
any other individual, corporate or representative capacity, to create, commence or
otherwise initiate, or to develop, enhance or otherwise further, any business or
activity if Executive knows or reasonably should know that such business or
activity, directly or indirectly competes in any material manner with the
Business. For purposes of this Section 16(C), the term “Business” shall refer to
the business of the Company as presently conducted or as conducted on the Date of
Termination.
	 
	 	D.	 	General Release. As an additional inducement for the Company to
enter into this Agreement, and as a condition to payment and provision of benefits
under this Agreement to Executive or Executive’s estate, Executive agrees that
Executive (or Executive’s trust or estate, as applicable) shall execute and deliver
within fifty (50) days following the date of Executive’s Separation from Service, and
not revoke within any revocation period required by law, a general release of claims
in favor of the Company and its employees, directors, agents and affiliates in a form
acceptable to the Company in its sole and absolute discretion.
	 
	 	E.	 	Reasonable Restrictions. Executive acknowledges that these
restrictions shall not prevent or unduly restrict Executive from practicing his
profession, or cause him economic hardship. Executive represents that he (i) is
familiar with the foregoing covenants not to compete and not to solicit, and (ii) is
fully aware of his obligations hereunder, including, without limitation, the
reasonableness of the length of time, scope and geographic coverage of these
covenants.






	17.	 	Cooperation
	 
	 	 	During Executive’s employment with the Company and thereafter, Executive agrees to cooperate
with the Company and its agents, accountants and attorneys concerning any matter with which
Executive was involved during his employment. Such cooperation shall include, but not be
limited to, providing information to, meeting with and reviewing documents provided by the
Company and its agents, accountants and attorneys during normal business hours or other
mutually agreeable hours upon reasonable notice and to make himself available for
depositions and hearings, if necessary and upon reasonable notice. If Executive’s
cooperation is required after the termination of Executive’s employment, the Company shall
reimburse Executive for any reasonable out of pocket expenses incurred in performing his
obligations hereunder.




17









 






	18.	 	Entire Agreement; No Oral Modifications.
	 
	 	 	This Agreement sets forth the entire agreement of the parties hereto in respect of the
subject matter contained herein and supersedes all prior agreements, promises, covenants,
arrangements, communications, representations or warranties, whether oral or written, by any
officer, employee or representative of any party hereto in respect of the subject matter
contained herein. No provision of this Agreement may be modified, waived or discharged
unless such waiver, modification or discharge is agreed to in writing and signed by
Executive and such officer as may be designated by the Board. No waiver by either party
hereto at any time of any breach by the other party hereto of or compliance with, any
condition or provision of this Agreement to be performed by such other party shall be deemed
a waiver of similar or dissimilar provisions or conditions at the same or at any prior or
subsequent time.





          IN WITNESS WHEREOF, the Company and the Executive have executed this Agreement to be effective
the date first above written.




	 	 	 	 	 	 	 	 	 
	EXECUTIVE	 	 	 	COMPLETE PRODUCTION SERVICES, INC.,	 	 
	 	 	 	 	a Delaware corporation	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Joseph C. Winkler 

Chief Executive Officer	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	And	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	James F. Maroney, III	 	 
	 

	 	 	 	 	 	Vice President, Secretary and General Counsel	 	 






18








 





APPENDIX A26



Additional Benefits upon an I.E. Miller Change of Control





	1.	 	Definitions. For purposes of the Agreement, the following terms shall have the meanings set
forth below:






	 	A.	 	“I.E. Miller Change of Control” shall occur for purposes of this
Agreement if:






	 	(i)	 	Any person or group of persons acquires (or has acquired during
the 12-month period ending on the date of the most recent acquisition by such
person or group) ownership as a “beneficial owner” (as defined in Rule 13d-3
under the Securities Exchange Act of 1934), directly or indirectly, of
securities in I.E. Miller representing 30% or more of the combined voting power
of I.E Miller’s outstanding securities;
	 
	 	(ii)	 	I.E. Miller is merged, consolidated or combined with another
corporation or entity, including without limitation, a reverse or forward
triangular merger, and I.E. Miller’s stockholders prior to such transaction own
less than 55% of the outstanding voting securities of the surviving or
resulting corporation or entity after the transaction; or
	 
	 	(iii)	 	There is a disposition, transfer, sale or exchange of all or
substantially all of I.E. Miller’s assets;






	 	 	 	provided, that, for purposes of this definition, a transaction or event described in
paragraph (i), (ii) or (iii) shall constitute an “I.E. Miller Change of
Control” only if such transaction or event occurs after the Effective Date and
constitutes a “change in control event,” as defined in Treasury Regulation Section
1.409A-3(i)(5), with respect to Executive at a time when Executive is employed by
I.E. Miller.
	 
	 	B.	 	“I.E. Miller Protective Period” shall mean the period commencing on the
effective date of an I.E. Miller Change of Control and ending one year following the
effective date of the I.E. Miller Change of Control.






	2.	 	Sales Incentive and Other Benefits upon an I.E. Miller Change of Control.






	 	A.	 	In the event of an I.E. Miller Change of Control, the Company shall pay
Executive an amount (the “Sales Incentive”) equal to Executive’s annual base
salary as in effect at the time of the I.E. Miller Change of Control in a lump sum cash
payment, to be paid on such date as determined by the Company within thirty (30) days
following the I.E. Miller Change of Control.
	 
	 	B.	 	In the event of an I.E. Miller Change of Control, Executive shall be entitled
to receive the benefits described in Section 7 of the Agreement.







 




			
	26	 	For Mr. Nightingale only




19









 











	3.	 	Continuation of Employment by the Company – Change in Control Payments. In the event of an
I.E. Miller Change of Control, if Executive continues in employment with the Company on and
following the effective date of such I.E. Miller Change of Control and, during the I.E. Miller
Protective Period, Executive has a Separation from Service by reason of either Executive’s (a)
Voluntary Termination for Good Reason, or (b) Involuntary Termination, Executive shall be
entitled to receive from the Company: (i) the cash compensation described in Section 5(B) of
the Agreement less an amount equal to the Sales Incentive; plus (ii) the compensation
and benefits described in Sections 5(A), 5(C), 5(D), 5(E), 5(F), 6(A) and 6(B) of the
Agreement, and Executive shall continue to be bound by Sections 11 through 17 of the
Agreement. For these purposes, “Voluntary Termination for Good Reason,” “Involuntary
Termination” and “Separation from Service” shall have the definitions specified in the
Agreement, the “Change of Control Payout Period” shall mean the period of two years following
Executive’s Separation from Service, all references to “Change of Control” shall be deemed to
be references to the I.E. Miller Change of Control, and the “Date of Termination” shall mean
the date of Executive’s Separation from Service.
	 
	4.	 	Continuation of Employment by Successor Employer — Assumption of Agreement.






	 	A.	 	In the event of an I.E. Miller Change of Control, if Executive is employed by
(i) in the case of an I.E. Miller Change of Control described in Section 1.A.(iii) of
this Appendix (an “Asset Sale”), the unrelated service recipient (as defined in
Treasury Regulation Section 1.409A-1(g)) that purchases the assets of I.E. Miller (the
“Asset Purchaser”) or (ii) I.E. Miller or its successor company (in each case,
the “Successor Employer”) on of following the effective date of the I.E. Miller
Change of Control, the Company shall cause the Successor Employer to assume the
Agreement and agree to perform, discharge and satisfy any and all of the Successor
Employer’s obligations and liabilities under this Appendix of the Agreement. The
Successor Employer shall assume the obligation to provide the compensation and benefits
payable in accordance with Section 5 of this Appendix, and the Successor Employer shall
have no obligation to provide the compensation and benefits under Sections 4 and 7 of
the Agreement, and, except as provided in Section 2 of this Appendix, the Company shall
have no further obligations and liabilities under the Agreement or this Appendix.
	 
	 	B.	 	In the event of an I.E. Miller Change of Control that is an Asset Sale, if
Executive becomes employed by the Asset Purchaser on the effective date of such I.E.
Miller Change of Control, the Company shall, and shall cause the Asset Purchaser to,
specify in accordance with Treasury Regulation Section 1.409A-1(h)(4), that Executive
shall be treated as not having a Separation from Service on the effective date of such
I.E. Miller Change of Control.






	5.	 	Continuation of Employment by Successor Employer — Change of Control Payments. In the event
of an I.E. Miller Change of Control, and the assumption of the Agreement under Section 3(A) of
this Appendix, if Executive is employed by the Successor Employer and, during the I.E. Miller
Protective Period, Executive has a Separation from Service by reason of either Executive’s (a)
Voluntary Termination for




20









 






	 	 	Good Reason, or (b) Involuntary Termination by the Successor Employer or its subsidiary
other than for Cause, Executive shall be entitled to receive from the Successor Employer the
compensation and benefits equivalent to those described in Sections 5(A), 5(B) (without
offset for the Sales Incentive), 5(C), 5(D), 5(E), 5(F), 6(A) and 6(B) of the Agreement,
each determined as if the Successor Employer were substituted for the Company with respect
to such provisions, to the extent applicable, and Executive shall continue to be bound by
Sections 11 through 17 of the Agreement. For these purposes, “Voluntary Termination for
Good Reason,” “Involuntary Termination” and “Separation from Service” shall have the
definitions specified in the Agreement (substituting the Successor Employer or its
subsidiary for the Company), the “Change in Control Payout Period” shall mean the period of
two years following Executive’s Separation from Service, all references to “Change in
Control” shall be deemed to be references to the I.E. Miller Change of Control, and “Date of
Termination” shall mean the date of Executive’s Separation from Service.]






21