exv10w1










 




    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 pronouncements, which of a
    Participant’s purported Incentive Stock Options do not
    constitute Incentive Stock Options and shall notify the
    Participant of such determination as soon as reasonably
    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 on
    the date of grant 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. The terms of any Incentive Stock Option
    granted under the Plan shall comply in all respects with the
    provisions of Section 422 of the Code, or any successor
    provision, and any regulations promulgated thereunder.



 



    (b) Restricted Stock.  Subject to the
    provisions of the Plan, the Committee shall have the authority
    to determine the Participants to whom Restricted Stock shall be
    granted, the number of Shares of Restricted Stock to be granted
    to each such Participant, the duration of the Restricted Period,
    the conditions, including such performance criteria, if any,
    under which the Restricted Stock may be forfeited to the
    Company, and the other terms and conditions of such Awards;
    provided, however, that the Restricted Period shall not be less
    than three years for non-performance-based Awards or less than
    one year for performance-based Awards, except as provided in
    Section 6(c)(iii) below.



 



    (i) Dividends.  Dividends paid on
    Restricted Stock may be paid directly to the Participant, may be
    subject to risk of forfeiture
    and/or
    transfer restrictions during any period established by the
    Committee or sequestered and held in a bookkeeping cash account
    (with or without interest) or reinvested on an immediate or
    deferred basis in additional shares of Common Stock, which
    credit or shares may be subject to the same restrictions as the
    underlying Award or such other restrictions, all as determined
    by the Committee in its discretion, as provided in the Award
    Agreement.



 



    (ii) Registration.  Any Restricted Stock
    may be evidenced in such manner as the Committee shall deem
    appropriate, including, without limitation, book-entry
    registration or issuance of a stock certificate or certificates.
    In the event any stock certificate is issued in respect of
    Restricted Stock granted under the Plan, such certificate shall
    be registered in the name of the Participant and shall bear an
    appropriate legend referring to the terms, conditions, and
    restrictions applicable to such Restricted Stock.



 



    (iii) Forfeiture and Restrictions
    Lapse.  Except as otherwise determined by the
    Committee or the terms of the Award Agreement that granted the
    Restricted Stock in compliance with Section 6(c)(iii)
    below, upon termination of a Participant’s employment for
    any reason during the applicable Restricted Period, all
    Restricted Stock shall be forfeited by the Participant without
    payment and re-acquired by the Company. Unrestricted Shares,
    evidenced in such manner as the Committee shall deem
    appropriate, shall be issued to the holder of Restricted Stock
    promptly after the applicable restrictions have lapsed or
    otherwise been satisfied.



 



    (iv) Transfer Restrictions.  During the
    Restricted Period, Restricted Stock will be subject to such
    limitations on transfer as necessary to comply with
    Section 83 of the Code.



 



    (c) General.



 



    (i) Awards May Be Granted Separately or
    Together.  Awards may, in the discretion of the
    Committee, be granted either alone or in addition to, in tandem
    with, any other Award granted under the




    

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    Plan or any award granted under any other plan of the Company or
    any Parent Entity or Subsidiary. Awards granted in addition to
    or in tandem with other Awards or awards granted under any other
    plan of the Company or any Parent Entity or Subsidiary may be
    granted either at the same time as or at a different time from
    the grant of such other Awards or awards.



 



    (ii) Limits on Transfer of Awards.



 



    (A) Except as provided in paragraph (C) below, each
    Award, and each right under any Award, shall be exercisable only
    by the Participant during the Participant’s lifetime, or if
    permissible under applicable law, by the Participant’s
    guardian or legal representative as determined by the Committee.



 



    (B) Except as provided in paragraph (C) below, no
    Award and no right under any such Award may be assigned,
    alienated, pledged, attached, sold or otherwise transferred or
    encumbered by a Participant other than by will or by the laws of
    descent and distribution, and any such purported prohibited
    assignment, alienation, pledge, attachment, sale, transfer or
    encumbrance shall be void and unenforceable against the Company
    or any Parent Entity or Subsidiary.



 



    (C) To the extent specifically approved in writing by the
    Committee, an Award (other than an Incentive Stock Option) may
    be transferred to immediate family members or related family
    trusts, limited partnerships or similar entities or other
    Persons on such terms and conditions as the Committee may
    establish or approve in its sole discretion.



 



    (iii) Terms of Awards.  The term of each
    Award shall be for such period as may be determined by the
    Committee, provided the term of an Incentive Stock Option shall
    be limited as provided in Section 6(a)(iii) above and the
    Restricted Period for Restricted Stock shall be subject to
    Section 6(b) above, except that:



 



    (A) in the Committee’s discretion, as may be reflected
    in the terms of an Award Agreement or otherwise, the Restricted
    Period for any Award may be shortened by acceleration of vesting
    only in connection with the death, disability or retirement of a
    Participant, termination of Participant’s employment by the
    Company without cause or by Participant for good reason, or a
    change in control of the Company, and



 



    (B) subject to Plan provisions applicable to Incentive
    Stock Options and Section 409A of the Code, a compensation
    committee of the Board composed entirely of independent
    Directors may (1) authorize Awards with a Restricted Period
    that is shorter than, or otherwise differs from, the Restricted
    Period prescribed by other provisions of the Plan, and
    (2) lapse, waive or change Award restrictions, in the case
    of the immediately preceding clauses (1) and (2), in
    respect of an aggregate number of Shares equal to no more than
    five percent of the Shares authorized for grant under the Plan.



 



    (iv) Share Restrictions.  All Shares or
    other securities of the Company or any Subsidiary delivered
    under the Plan pursuant to any Award or the exercise thereof
    shall be subject to such stop transfer orders and other
    restrictions as the Committee may deem advisable under the Plan
    or the rules, regulations, and other requirements of the SEC,
    any stock exchange upon which such Shares or other securities
    are then listed, and any applicable federal or state laws, and
    if certificates are issued for the Shares, the Committee may
    cause a legend or legends to be put on any such certificates to
    make appropriate reference to such restrictions.



 



    (v) Consideration for Grants.  Awards may
    be granted for no cash consideration or for such consideration
    as the Committee determines including, without limitation, such
    minimal cash consideration as may be required by applicable law.



 



    (vi) Delivery of Shares or other Securities and Payment
    by Participant of Consideration.  No Shares or
    other securities shall be delivered pursuant to any Award until
    payment in full of any amount required to be paid pursuant to
    the Plan or the applicable Award Agreement (including, without
    limitation, any exercise price or tax withholding) is received
    by the Company. Such payment may be made by such method or
    methods and in such form or forms as the Committee shall
    determine,




    

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    including, without limitation, cash, Shares, other securities,
    other Awards or other property, withholding of Shares, cashless
    exercise with simultaneous sale, or any combination thereof,
    provided that the combined value, as determined by the
    Committee, of all cash and cash equivalents and the Fair Market
    Value of any such Shares or other property so tendered to the
    Company, as of the date of such tender, is at least equal to the
    full amount required to be paid pursuant to the Plan or the
    applicable Award Agreement to the Company. Notwithstanding the
    foregoing, for purposes of this Section 6(c)(vi), 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.



 



    (vii) Unusual Transactions or Events.  In
    the event of any distribution (whether in the form of cash,
    Shares, other securities, or other property), recapitalization,
    reorganization, merger, spin-off, split-off,
    split-up,
    consolidation, combination, repurchase, or exchange of Shares or
    other securities of the Company, or other relevant corporate
    transaction or event or any unusual or nonrecurring transactions
    or events affecting the Company or any affiliate of the Company,
    and whenever the Committee determines that action is appropriate
    in order to prevent the dilution or enlargement of the benefits
    or potential benefits intended to be made available under the
    Plan or with respect to any Award under the Plan, to facilitate
    such transactions or events, the Committee shall take any one or
    more of the following actions, on such terms and conditions as
    it deems appropriate in its sole discretion, in order to prevent
    such dilution or enlargement of benefits or potential benefits:



 



    (A) To provide for either (i) the termination of any
    such Award in exchange for an amount of cash, if any, equal to
    the amount that would have been attained upon the exercise of
    such Award or realization of the Participant’s rights (and,
    for the avoidance of doubt, if as of the date of the occurrence
    of such transaction or event the Committee determines in good
    faith that no amount would have been attained upon the exercise
    of such Award or realization of the Participant’s rights,
    then such Award may be terminated by the Company without
    payment) or (ii) the replacement of such Award with other
    rights or property selected by the Committee in its sole
    discretion;



 



    (B) To provide that such Award be assumed by the successor
    or survivor corporation, or a parent or subsidiary thereof, or
    shall be substituted for by similar options, rights or awards
    covering the stock of the successor or survivor corporation, or
    a parent or subsidiary thereof, with appropriate adjustments as
    to the number and kind of shares and prices;



 



    (C) To make adjustments in the number and type of shares of
    common Stock (or other securities or property) subject to
    outstanding Awards, and in the number and kind of outstanding
    Awards
    and/or in
    the terms and conditions of (including the grant or exercise
    price), and the criteria included in, outstanding Awards and
    Awards which may be granted in the future, and in 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;
    and



 



    (D) To provide that such Award shall be exercisable or
    payable or fully vested with respect to all Shares covered
    thereby, notwithstanding anything to the contrary in the Plan or
    the applicable Award Agreement.



 



    (d) Awards to Directors.  Notwithstanding
    any other provision of the Plan, all Awards to Directors must be
    authorized by a compensation committee of the Board composed
    entirely of independent Directors.



 



    Section 7.  Amendment
    and Termination.



 



    Except to the extent prohibited by applicable law and unless
    otherwise expressly provided in an Award Agreement or in the
    Plan:



 



    (i) Amendments to the Plan.  The Board or
    the Committee may amend, alter, suspend, discontinue, or
    terminate the Plan without the consent of any stockholder,
    Participant, other holder or beneficiary of




    

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    an Award, or other Person; provided, however, notwithstanding
    any other provision of the Plan or any Award Agreement, without
    the approval of the stockholders of the Company no such
    amendment, alteration, suspension, discontinuation, or
    termination shall be made that would:



 



    (A) increase the total number of Shares that may be issued
    under Awards granted under the Plan, except as provided in
    Sections 4(c) and 6(c)(vii) of the Plan;



 



    (B) permit the exercise price of any outstanding Option
    that is “underwater” to be reduced or for an
    “underwater” Option to be cancelled and replaced with
    a new Award;



 



    (C) include Participants other than Employees, Directors
    and Consultants; or



 



    (D) materially increase benefits accrued to Participants
    under the Plan;



 



    provided further, however, no such amendment, alteration,
    suspension, discontinuation, or termination shall materially
    adversely affect the rights of a Participant under an Award
    without the written consent of such Participant.



 



    Notwithstanding any provision in this Plan to the contrary, this
    Plan shall not be amended or terminated in such manner that
    would cause 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 amendment or termination that may reasonably be expected to
    result in such non-compliance shall be of no force or effect.



 



    (ii) Amendments to Awards.  Subject to
    clause (i) above and Section 6 of the Plan, the
    Committee may waive any conditions or rights under, amend any
    terms of, or alter any Award theretofore granted, provided no
    change in any Award shall materially adversely affect the rights
    of a Participant under the Award without the consent of such
    Participant. Notwithstanding the foregoing, with respect to any
    Award intended to qualify as performance-based compensation
    under Section 162(m) of the Code, no adjustment other than
    an acceleration of vesting or payment upon the
    Participant’s death, disability or change in control of the
    Company, shall be authorized to the extent such adjustment would
    cause the Award to fail to so qualify.



 



    (iii) Compliance.  Notwithstanding the
    foregoing, the Committee may make any amendment to the Plan or
    an Award Agreement that it believes necessary to comply with any
    applicable law, including without limitation, Section 409A
    of the Code. Awards under this Plan are intended to comply with
    (or be exempt from) Section 409A of the Code, and ambiguous
    provisions hereof, if any, shall be construed and interpreted in
    a manner that is compliant with such intent. The Plan shall
    neither cause nor permit any payment, benefit or consideration
    to be substituted for a benefit that is payable under this Plan
    if such action would result in the failure of any amount that is
    subject to Section 409A of the Code to comply with the
    requirements of Section 409A of the Code, to the extent
    applicable.



 



    Section 8.  General
    Provisions.



 



    (a) No Rights to Awards.  No Participant
    or other Person shall have any claim to be granted any Award,
    there is no obligation for uniformity of treatment of
    Participants, or holders or beneficiaries of Awards and the
    terms and conditions of Awards need not be the same with respect
    to each recipient.



 



    (b) No Right to Employment or
    Retention.  The grant of an Award shall not be
    construed as giving a Participant the right to be retained in
    the employ of the Company or any Parent Entity or Subsidiary or
    under any other service contract with the Company or any Parent
    Entity or Subsidiary, or to remain on the Board. Further, the
    Company or a Parent Entity or Subsidiary may at any time dismiss
    a Participant from employment free from any liability or any
    claim under the Plan, unless otherwise expressly provided in the
    Plan, in any Award Agreement or any other agreement or contract
    between the Company or a Parent Entity or Subsidiary and the
    affected Participant. If a Participant’s employer was a
    Parent Entity or Subsidiary and ceases to be a Parent Entity or
    Subsidiary, such Participant shall be deemed to have terminated
    employment for purposes of the Plan, unless specifically
    provided otherwise in the Award Agreement.




    

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    (c) Governing Law.  The validity,
    construction, and effect of the Plan and any rules and
    regulations relating to the Plan shall be determined in
    accordance with the laws of the State of Delaware and applicable
    federal law.



 



    (d) Severability.  If any provision of the
    Plan or any Award is or becomes or is deemed to be invalid,
    illegal, or unenforceable in any jurisdiction or as to any
    Person or Award, or would disqualify the Plan or any Award under
    any law deemed applicable by the Committee, such provision shall
    be construed or deemed amended to conform to the applicable
    laws, or if it cannot be construed or deemed amended without, in
    the determination of the Committee, materially altering the
    intent of the Plan or the Award, such provision shall be
    stricken as to such jurisdiction, Person or Award and the
    remainder of the Plan and any such Award shall remain in full
    force and effect.



 



    (e) Other Laws.  The Committee may refuse
    to issue or transfer any Shares or other consideration under an
    Award, if, acting in its sole discretion, it determines that the
    issuance or transfer of such Shares or such other consideration
    might violate any applicable law or regulation.



 



    (f) No Trust or
    Fund Created.  Neither the Plan nor the Award
    shall create or be construed to create a trust or separate fund
    of any kind or a fiduciary relationship between the Company or
    any Parent Entity or Subsidiary and a Participant or any other
    Person. To the extent that any Person acquires a right to
    receive payments from the Company or any Parent Entity or
    Subsidiary pursuant to an Award, such right shall be no greater
    than the right of any general unsecured creditor of the Company
    or any Parent Entity or Subsidiary.



 



    (g) No Fractional Shares.  No fractional
    Shares shall be issued or delivered pursuant to the Plan or any
    Award, and the Committee shall determine whether cash, other
    securities, or other property shall be paid or transferred in
    lieu of any fractional Shares or whether such fractional Shares
    or any rights thereto shall be cancelled, terminated, or
    otherwise eliminated.



 



    (h) Headings.  Headings are given to the
    Section and subsections of the Plan solely as a convenience to
    facilitate reference. Such headings shall not be deemed in any
    way material or relevant to the construction or interpretation
    of the plan or any provision thereof.



 



    Section 9.  Effective
    Date.



 



    This Third Amended and Restated Plan shall become effective as
    of the date it is approved by the Company’s stockholders.



 



    Section 10.  Term
    of the Plan.



 



    No Award shall be granted under the Plan after October 12,
    2015 (the 10th anniversary of the earlier of the date the
    Original Plan was adopted by the Board or approved by the
    stockholders of the Company). However, unless otherwise
    expressly provided in the Plan or in an applicable Award
    Agreement, any Award granted prior to such termination, and the
    authority of the Committee to amend, alter, adjust, suspend,
    discontinue, or terminate any such Award or to waive any
    conditions or rights under such Award, shall extend beyond such
    termination date.




    

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