Exhibit 10.1
MARINER ENERGY, INC.
THIRD AMENDED AND RESTATED STOCK INCENTIVE PLAN
Section
1.
Purpose of the Plan.
The Mariner Energy, Inc.
Stock Incentive Plan effective as of March 11, 2005 (the
“Original Plan”), as previously amended and restated,
is hereby amended and restated in its entirety (as so hereby
amended and restated, the “Plan” or this “Amended
and Restated Plan”). The Plan is intended to promote the
interests of Mariner Energy, Inc., a Delaware corporation (the
“Company”), by encouraging Employees, Directors and
Consultants to acquire or increase their equity interest in the
Company and to provide a means whereby they may develop a sense of
proprietorship and personal involvement in the development and
financial success of the Company, and to encourage them to remain
with and devote their best efforts to the business of the Company,
thereby advancing the interests of the Company and its
stockholders. The Plan is also contemplated to enhance the ability
of the Company and its Subsidiaries to attract and retain the
services of individuals who are essential for the growth and
profitability of the Company.
Section
2.
Definitions.
As used in the Plan, the
following terms shall have the meanings set forth below:
“Award”
shall mean an Option or
Restricted Stock.
“Award
Agreement” shall mean any written or electronic
agreement, contract, instrument or document evidencing any Award,
which may, but need not, be executed or acknowledged by a
Participant.
“Board”
shall mean the Board of
Directors of the Company.
“Code”
shall mean the Internal
Revenue Code of 1986, as amended from time to time, and the rules
and regulations thereunder.
“Committee”
shall mean the Board or
any committee of the Board designated, from time to time, by the
Board to act as the Committee under the Plan.
“Consultant”
shall mean any
individual, other than a Director or an Employee, who renders
consulting or advisory services to the Company, a Subsidiary or a
Parent Entity.
“Director”
shall mean any member of
the Board who is not an Employee.
“Employee”
shall mean any employee
of the Company, a Subsidiary or a Parent Entity.
“Exchange
Act” shall mean the Securities Exchange
Act of 1934, as amended.
“Fair Market
Value” shall mean, as of any applicable
date, the last reported sales price for a Share on the principal
securities exchange on which the Shares are traded on the
applicable date as reported by such reporting service approved by
the Committee; provided, however, that if Shares shall not have
been quoted or traded on such applicable date, Fair Market Value
shall be determined based on the next preceding date on which they
were quoted or traded, or, if deemed appropriate by the Committee,
in such other manner as it may determine to be appropriate; and
provided further, however, for purposes of Section 6(c)(vi) of
the Plan, the Fair Market Value of Shares withheld to satisfy tax
withholding upon expiration of a Restricted Period applicable to
Restricted Stock shall be the last reported sales price for a Share
on the principal securities exchange on which the Shares are traded
on the first trading day preceding the expiration of the Restricted
Period. In the event the Shares are not publicly traded at the time
a determination of its Fair Market Value is required to be made
hereunder, the determination of Fair Market Value shall be made in
good faith by the Committee.
“Incentive
Stock Option” or “ISO” shall
mean an option granted under Section 6(a) of the Plan that is
intended to qualify as an “incentive stock option”
under Section 422 of the Code or any successor provision
thereto.
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“Non-Qualified
Stock Option” or “NQO” shall
mean an option granted under Section 6(a) of the Plan that is
not intended to be an Incentive Stock Option.
“Option”
shall mean an Incentive
Stock Option or a Non-Qualified Stock Option.
“Parent
Entity” means any entity that owns a
majority of the voting power of the Company, directly or
indirectly, except with respect to the grant of an ISO the term
Parent Entity shall mean any “parent corporation” as
defined in Section 424 of the Code.
“Participant”
shall mean any Employee,
Director or Consultant granted an Award under the Plan.
“Person”
shall mean an
individual, corporation, partnership, limited liability company,
association, joint-stock company, trust, unincorporated
organization, government or political subdivision thereof or other
entity.
“Restricted
Period” shall mean the period established by
the Committee with respect to an Award during which the Award
either remains subject to forfeiture or is not exercisable by the
Participant.
“Restricted
Stock” shall mean any Share, prior to the
lapse of restrictions thereon, granted under Section 6(b) of
the Plan.
“Rule 16b-3”
shall mean
Rule 16b-3 promulgated by the SEC under the Exchange Act, or
any successor rule or regulation thereto as in effect from time to
time.
“SEC”
shall mean the
Securities and Exchange Commission, or any successor
thereto.
“Shares”
or “Common
Shares” or “Common Stock” shall mean
the common stock of the Company, $.0001 par value, and such
other securities or property as may become the subject of Awards of
the Plan.
“Subsidiary”
shall mean any entity
(whether a corporation, partnership, joint venture, limited
liability company or other entity) in which the Company owns a
majority of the voting power of the entity directly or indirectly,
except with respect to the grant of an ISO the term Subsidiary
shall mean any “subsidiary corporation” of the Company
as defined in Section 424 of the Code.
Section
3.
Administration.
The Plan shall be
administered by the Committee. A majority of the Committee shall
constitute a quorum, and the acts of the members of the Committee
who are present at any meeting thereof at which a quorum is
present, or acts unanimously approved by the members of the
Committee in writing, shall be the acts of the Committee. Subject
to the terms of the Plan and applicable law, and in addition to
other express powers and authorizations conferred on the Committee
by the Plan, the Committee shall have full power and authority to:
(i) designate Participants; (ii) determine the type or
types of Awards to be granted to a Participant;
(iii) determine the number of Shares to be covered by, or with
respect to which payments, rights, or other matters are to be
calculated in connection with, Awards; (iv) determine the
terms and conditions of any Award; (v) determine whether, to
what extent, and under what circumstances Awards may be settled or
exercised in cash, Shares, other securities, other Awards or other
property, or canceled, forfeited, or suspended and the method or
methods by which Awards may be settled, exercised, canceled,
forfeited, or suspended; (vi) interpret and administer the
Plan and any instrument or agreement relating to an Award made
under the Plan; (vii) establish, amend, suspend, or waive such
rules and regulations and appoint such agents as it shall deem
appropriate for the proper administration of the Plan; and
(viii) make any other determination and take any other action
that the Committee deems necessary or desirable for the
administration of the Plan. Unless otherwise expressly provided in
the Plan, all designations, determinations, interpretations, and
other decisions under or with respect to the Plan or any Award
shall be within the sole discretion of the Committee, may be made
at any time and shall be final, conclusive, and binding upon all
Persons, including the Company, any Subsidiary, any Parent Entity,
any Participant, any holder or beneficiary of any Award, any
stockholder and any other Person.
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Section
4.
Shares Available for Awards.
(a) Shares
Available. Subject to adjustment as provided in
Section 4(c) below, (i) the number of Shares that may be
issued with respect to Awards granted under the Plan shall be
12,500,000, which includes the 6,500,000 authorized under the
Original Plan and the 6,000,000 shares added by this Amended
and Restated Plan, and (ii) the maximum number of shares with
respect to which Options or Restricted Stock may be granted to an
Employee during the term of the Plan shall be 5,700,000. If an
Award is forfeited or otherwise lapses, expires, terminates or is
canceled without the actual delivery of Shares, then the Shares
covered by such Award, to the extent of such forfeiture,
expiration, lapse, termination or cancellation, shall again be
Shares that may be issued with respect to Awards granted under the
Plan. Shares withheld by the Company to satisfy tax withholding or
exercise price obligations shall not be considered delivered under
the Plan and shall again be available for issuance under future
Awards.
(b) Sources of
Shares Deliverable Under Awards. Any Shares
delivered pursuant to an Award may consist, in whole or in part, of
authorized and unissued Shares or of treasury Shares.
(c)
Adjustments. In the event of a stock dividend or
stock split with respect to Shares, the number of Shares with
respect to which Awards may be granted, the maximum number of
shares with respect to which Options or Restricted Stock may be
granted to an Employee during the term of the Plan, the number of
Shares subject to outstanding Awards, and the grant or exercise
price with respect to outstanding Awards automatically shall be
proportionately adjusted, without action by the Committee, which
adjustment will be evidenced by written addendums to the Plan and
Award Agreements prepared by the Company and, with respect to
Options, shall be in accordance with the Treasury Regulations
concerning Incentive Stock Options.
No adjustment authorized
by this paragraph shall be made by the Company in such manner that
would cause or result in this Plan or any amounts or benefits
payable hereunder to fail to comply with the requirements of
Section 409A of the Code, to the extent applicable, and any such
adjustment that may reasonably be expected to result in such
non-compliance shall be of no force or effect.
Section
5.
Eligibility.
Any Employee, Director
or Consultant shall be eligible to be designated a Participant by
the Committee.
Section
6.
Awards.
(a)
Options. Subject to the provisions of the Plan,
the Committee shall have the authority to determine Participants to
whom Options shall be granted, the number of Shares to be covered
by each Option, the purchase price therefor and the conditions,
whether the Option is an ISO or a Non-Qualified Stock Option, and
limitations applicable to the exercise of the Option, including the
following terms and conditions and such additional terms and
conditions, as the Committee shall determine, that are not
inconsistent with the provisions of the Plan, including, without
limitation, Section 6(c)(iii) below.
(i) Exercise
Price. Subject to adjustment pursuant to
Section 4(c) of the Plan, the purchase price per Share
purchasable under an Option shall be determined by the Committee at
the time the Option is granted, but shall not be less than the Fair
Market Value per Share on the date of such grant.
(ii) Time and
Method of Exercise . The Committee shall determine
and provide in the Award Agreement the time or times at which an
Option may be exercised in whole or in part, and the method or
methods by which, and the form or forms (which may include, without
limitation, cash, check acceptable to the Company, Shares
already-owned by the Participant for more than six months (unless
such holding requirement is waived by the Committee), if the Shares
are publicly traded, a “cashless-broker” exercise
through procedures approved by the Company, or any combination
thereof) in which payment of the exercise price with respect
thereto may be made or deemed to have been made.
(iii) Incentive
Stock Options . An Incentive Stock Option may be
granted only to an individual who is an employee of the Company or
any parent or subsidiary corporation (as defined in
Section 424 of the Code) at the time the Option is granted and
must be granted within 10 years from the date the Plan was
approved by the Board or the stockholders, whichever is earlier. To
the extent that the aggregate Fair
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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, or such Option fails to
constitute an Incentive Stock Option for any reason, such purported
Incentive Stock Options shall be treated as Non-Qualified Stock
Options. The Committee shall determine, in accordance with
applicable provisions of the Code, Treasury Regulations and other
administrative
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