Exhibit 10.2
MARINER ENERGY, INC.
2008
Long-Term Performance-Based Restricted Stock Program
Restricted Stock Agreement
Employee:
Date of
Grant:
RS Grant
Number:
Number
of Restricted Shares Granted:
1. Purpose of Program;
Notice of Grant . To promote the long-term interests of Mariner
Energy, Inc. (the “Company”) by providing an equity
interest in the Company to certain key employees of the Company and
provide a means whereby such employees 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 bests efforts to the business of the Company,
thereby advancing the long-term interests of the Company and the
stockholders of the Company, the Board of Directors of the Company
(the “Board”) has established the 2008 Long-Term
Performance-Based Restricted Stock Program contemplated by this
Agreement (the “Program”) as a form of restricted stock
grant under the Mariner Energy, Inc. Second Amended and Restated
Stock Incentive Plan, as may be amended or restated from time to
time (the “Plan”). In connection with the Program, the
Board has reserved out of unissued shares of Common Stock reserved
for issuance under the Plan, 1,316,993 shares, which is equal to
1.50% of the outstanding shares of Common Stock as of
April 30, 2008. Any capitalized terms not defined herein shall
have the meanings ascribed to them in the Plan.
Subject to the terms and conditions
of the Plan and this Agreement, you are hereby granted under the
Program and pursuant to the Plan the number of restricted shares of
Common Stock (“Restricted Stock”) of the Company set
forth above as “Number of Restricted Shares
Granted.”
2. Definitions . As used
in this Agreement, the following terms shall have the meanings set
forth below:
“
40% Qualification Event ” means the first occurrence
prior to the Termination Date of the rolling 15-day average Fair
Market Value of the Company’s Common Stock being $38.00 or
more but less than $46.00.
“
100% Qualification Event ” means the first occurrence
prior to the Termination Date of the rolling 15-day average Fair
Market Value of the Company’s Common Stock being $46.00 or
more.
“
Cause ” has the meaning ascribed to such term in the
written employment agreement between you and the Company, or if you
do not have such an agreement with the Company, “Cause”
means (i) a material failure to perform your duties,
(ii) your conviction of or plea of nolo contendere for any
felony or any misdemeanor involving moral turpitude, dishonesty,
fraud or breach of trust, (iii) your willful engagement in
gross misconduct in the performance of your duties, (iv) your
substance abuse, (v) your misappropriation of funds, or
(vi)
your
disparagement of the Company or any affiliate or any of their
respective managements or employees.
“
Change of Control ” means, after the Date of Grant,
(i) any person or group of affiliated or associated persons
acquires more than 35% of the voting power in the Company;
(ii) the consummation of a sale of all or substantially all of
the assets of the Company; or (iii) the dissolution of the Company;
or (iv) the consummation of any merger, consolidation, or
reorganization involving the Company in which, immediately after
giving effect to such merger, consolidation or reorganization, less
than 51% of the total voting power of outstanding stock of the
surviving or resulting entity is then “beneficially
owned” (within the meaning of Rule 13d-3 under the
Securities Exchange Act of 1934, as amended) in the aggregate by
the stockholders of the Company immediately prior to such merger,
consolidation or reorganization.
“
Death ” means your death during your Employment with
the Company.
“
Designated Shares ” means the number of shares of
Restricted Stock granted to you under this Agreement as set forth
above.
“
Disability ” means your Employment with the Company
terminates by reason of a disability that entitles you to benefits
under the Company’s or an affiliate’s long-term
disability plan, or if there is no such plan, you shall have been
absent from the full-time performance of your duties for six
consecutive months as a result of your incapacity due to physical
or mental illness and shall not have returned to full-time
performance of your duties within 30 days after written notice
of termination is given to you by the Company (provided, however,
that such notice may not be given prior to 30 days before the
expiration of such six-month period).
“
Employment with the Company ” means employment as an
employee of the Company or a Parent Entity or Subsidiary.
“
Good Reason ” has the meaning ascribed to such term in
the written employment agreement between you and the Company, or if
you do not have such an agreement with the Company, “Good
Reason” means (i) a material adverse change in the
nature or scope of your authorities, powers, duties and functions
performed; or (ii) a material reduction in your base salary or
in the cash bonus opportunities made available to you, excluding
opportunities under (A) any plan, program, arrangement or
agreement providing for compensation in the form of overriding
royalty interests or income from overriding royalty interests,
(B) any equity-based compensation plans, programs,
arrangements or agreements, including, but not limited to, stock
options, and (C) 401(k) and profit-sharing plans; or
(iii) for two years after a Change of Control only, a change
in the location of your principal place of employment by the
Company by more than 50 miles; provided you gave the Company
written notice which set forth in reasonable detail the facts and
circumstances claimed to constitute “Good Reason”
within 90 days following the first date on which you knew of
the occurrence of an event or action constituting Good Reason, and
the Company failed to cure such event or action within the
30 days following receipt of such notice.
“
Parent Entity ” means any entity that owns a majority
of the voting power of the Company, directly or indirectly.
“
Qualified Employment Termination ” means your
Employment with the Company is terminated by the Company without
Cause or by you for Good Reason.
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“
Qualified Retirement ” means your voluntary
termination of Employment with the Company after Retirement
Eligibility other than by reason of Death, Disability or for Good
Reason.
“
Retirement Eligibility ” means the later to occur of
(a) the fifth anniversary of the Date of Grant or (b) the
date on which you have attained the age of 62.
“
Subsidiary ” means 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.
“
Termination Date ” means June 16, 2018.
“
Trigger Event ” means the earliest to occur prior to
the Termination Date of (i) a Change of Control,
(ii) Death, or (iii) Disability.
“
Trigger Event Price ” means, (i) with respect to
a Change of Control, (a) resulting from an all-cash
transaction, the cash consideration paid or payable with respect to
a share of the Company’s Common Stock in such transaction or
(b) resulting from any other transaction(s), the total value
of the consideration approved by the Board for such transaction(s)
for a share of the Company’s Common Stock, determined as of
the date of such approval and using the fair market value as of
such date of any non-cash consideration, and (ii) with respect
to any other Trigger Event, the rolling 15-day average Fair Market
Value of the Company’s Common Stock on the trading day
immediately prior to the date of the occurrence of such Trigger
Event.
“
Trigger Event Shares ” means the sum of (i) 40%
of the number of Designated Shares, and (ii) the product of
the number of Designated Shares multiplied by 60% of the lesser of
1 or a fraction, the numerator of which is the Trigger Event Price
minus $38.00 and the denominator of which is 8.
3. Vesting of Restricted
Stock . Subject to the further provisions of this Agreement,
your Designated Shares shall become vested in accordance with the
following schedule:
(a) 40% Qualification Event.
In the event of a 40% Qualification Event, 40% of the Designated
Shares (the “Initial Threshold Shares”) will vest as
follows: One-fifth of the number of Initial Threshold Shares will
vest on each of the first five anniversaries of the date on which
the 40% Qualification Event occurred. Initial Threshold Shares
remaining unvested on the Termination Date will continue to vest
after the Termination Date as provided in this Agreement.
(b) 100% Qualification Event.
In the event of a 100% Qualification Event, all of the Designated
Shares other than the Initial Threshold Shares (the “Second
Threshold Shares”) will vest as follows: One-seventh of the
number of Second Threshold Shares will vest on each of the first
seven anniversaries of the date on which the 100% Qualification
Event occurred. Second Threshold Shares remaining unvested on the
Termination Date will continue to vest after the Termination Date
as provided in this Agreement.
(c) Change of Control. Upon
the occurrence of a Change of Control when the Trigger Event Price
is $46.00 or more, all of the Designated Shares will vest
immediately. Upon the occurrence of a Change of Control when the
Trigger Event
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Price is equal
to or greater than $38.00 but less than $46.00, a number of
Designated Shares equal to the greater of (i) the Trigger
Event Shares or (ii) the unvested Initial Threshold Shares if
a 40% Qualification Event has previously occurred plus the unvested
Second Threshold Shares if a 100% Qualification Event has
previously occurred, will vest immediately, and the remaining
Designated Shares shall be forfeited immediately. Upon the
occurrence of a Change of Control when the Trigger Event Price is
less than $38.00, if a 40% Qualification Event has previously
occurred, the unvested Initial Threshold Shares will vest
immediately, and the remaining Designated Shares shall be forfeited
immediately. Upon the occurrence of a Change of Control when the
Trigger Event Price is less than $38.00, if a 40% Qualification
Event has not previous
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