exv4w1



 








Exhibit 4.1




NONSTATUTORY STOCK OPTION AGREEMENT




     AGREEMENT (this “Agreement”) made as of March 2, 2006 (the “Effective Date”), between
MARINER ENERGY, INC., a Delaware corporation (the “Company”), and                                         
(“Employee”).



     WHEREAS, Forest Oil Corporation, a New York corporation (“Forest”), granted Employee an option
under Forest’s 2001 Stock Incentive Plan to acquire *                                        shares of Forest’s common
stock, par value $.10 per share, pursuant to a Nonstatutory Stock Option Agreement made as of
*                                         (the “Original Grant Date”) between Forest and Employee (the “Forest Stock
Option”);



     WHEREAS, as of the Effective Date, the Forest Stock Option remained unexercisable as to
*                                         of the shares covered thereby (the “Unvested Forest Stock Option”);



     WHEREAS, on the Effective Date, Forest Energy Resources, Inc., a Delaware corporation (fka SML
Wellhead Corporation) and a former wholly-owned subsidiary of Forest, became a wholly-owned
subsidiary of the Company known as Mariner Energy Resources, Inc. pursuant to an Agreement and Plan
of Merger, dated as of September 9, 2005, among Forest, SML Wellhead Corporation, the Company and
MEI Sub, Inc., as amended (the “Merger Agreement”);



     WHEREAS, Employee is employed by Mariner Energy Resources, Inc.;




     WHEREAS, Section 2.9 of the Merger Agreement provides that the Unvested Forest Stock Option be
converted into an option to acquire
*                                         shares of the Company’s common stock, par
value $.0001 per share (“Mariner Common Stock” or “Stock”); and



     WHEREAS, this Agreement effects the conversion of the Unvested Forest Stock Option into an
option to acquire Mariner Common Stock on the terms and subject to the conditions hereof.



     NOW, THEREFORE, for and in consideration of the premises and the mutual agreements contained
herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties, intending to be legally bound, hereby agree as follows:



     1. Grant of Option. The Company hereby irrevocably grants to Employee the right and
option (“Option”) to purchase all or any part
of an aggregate of
*                     shares of Stock on the
terms and conditions set forth herein. This Option shall not be treated as an incentive stock
option within the meaning of section 422(b) of the Internal Revenue Code of 1986, as amended (the
"Code”). Reference in this Agreement to any section of the Code shall be deemed to include any
amendments or successor provisions to such section and any regulations under such section.



 









 






     2.  Purchase Price. The purchase price of Stock purchased pursuant to the exercise of
this Option shall be $*                                         per share, which has been determined in accordance with
Section 2.9 of the Merger Agreement.



     3. Exercise of Option. Subject to the earlier expiration of this Option as herein
provided, this Option may be exercised, by written notice to the Company at its principal executive
office addressed to the attention of its Corporate Secretary (or such other officer or employee of
the Company as the Company may designate from time to time), at any time and from time to time
after the Effective Date, but, except as otherwise provided below, this Option shall not be
exercisable for more than the aggregate number of shares offered by this Option determined by the
number of full years from the Original Grant Date to the date of such exercise, in accordance with
the following schedule:




	 	•	 	[                     shares vest on [*                                        , 2006];
	 
	 	•	 	                     shares vest on [*                                        , 2007];
	 
	 	•	 	                     shares vest on [*                                        , 2008]; and
	 
	 	•	 	                     shares vest on [*                                        , 2009]].





     For purposes of the next sentence and subparts (a) through (d) thereof, references to the
Company include the Company or any Affiliate (defined below). This Option may be exercised only
while Employee remains an employee of the Company and will terminate and cease to be exercisable
upon Employee’s termination of employment with the Company, except that:




     (a) Disability. If Employee’s employment with the Company terminates by reason
of disability (within the meaning of section 22(e)(3) of the Code), this Option may be
exercised in full (without regard to the vesting schedule set forth above) by Employee (or
Employee’s estate or the person who acquires this Option by will or the laws of descent and
distribution or otherwise by reason of the death of Employee) at any time during the period
of one year following such termination.




     (b) Death. If Employee dies while in the employ of the Company, Employee’s
estate, or the person who acquires this Option by will or the laws of descent and
distribution or otherwise by reason of the death of Employee, may exercise this Option in
full (without regard to the vesting schedule set forth above) at any time during the period
of one year following the date of Employee’s death.




     (c) Retirement. If an Employee retires from the Company, this Option may be
exercised in full (without regard to the vesting schedule set forth above) by such Employee
(or Employee’s estate or the person who acquires this Option by will or the laws of descent
and distribution or otherwise by reason of the death of such Employee) at any time during
the period of one year following such retirement. Solely for purposes of this Agreement,
“retirement” means that Employee’s employment with the Company has terminated upon or after
Employee has reached the age of (i) 65 years or (ii) 55 years if Employee has been
continuously employed by Forest or its Affiliates and the Company for an aggregate of 15
years.



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     (d) Other Termination. If Employee’s employment with the Company terminates
for any reason other than as described in (a), (b) or (c) above, unless such employment is
terminated for cause, this Option may be exercised by Employee at any time during the period
of three months following such termination, or by Employee’s estate (or the person who
acquires this Option by will or the laws of descent and distribution or otherwise by reason
of the death of Employee) during a period of one year following Employee’s death if Employee
dies during such three-month period, but in each case only as to the number of shares
Employee was entitled to purchase hereunder as of the date Employee’s employment so
terminates. If Employee’s employment with the Company is terminated for cause, then this
Option (including the vested and nonvested portions thereof) will terminate and cease to be
exercisable upon the date of such termination. As used in this paragraph, the term “cause”
shall mean Employee (i) has been convicted of a misdemeanor involving moral turpitude or of
a felony, (ii) has engaged in gross negligence or willful misconduct in the performance of
the duties of Employee’s employment, (iii) has willfully disregarded any written corporate
policies established by the Company, or (iv) has materially breached any material provision
of any written agreement between Employee and the Company or any of its Affiliates.



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



     This Option shall not be exercisable in any event after the expiration of ten years from the
Original Grant Date. The purchase price of shares as to which this Option is exercised shall be
paid in full at the time of exercise (a) in cash (including check, bank draft or money order
payable to the order of the Company), (b) by delivering or constructively tendering to the Company
shares of Stock having a Fair Market Value (defined below) equal to the purchase price (provided
such shares used for this purpose must have been held by Employee for such minimum period of time
as may be established from time to time by the Company’s Board of Directors (the “Board”) or any
committee of the Board designated, from time to time, by the Board to act in respect of stock or
compensation plans of the Company, this Option or this Agreement (“Committee”), (c) if the Stock is
readily tradable on a national securities market, through a “cashless-broker” exercise in
accordance with a Company established policy or program for the same, or (d) any combination of the
foregoing. No fraction of a share of Stock shall be issued by the Company upon exercise of an
Option or accepted by the Company in payment of the exercise price thereof; rather, Employee shall
provide a cash payment for such amount as is necessary to effect the issuance and acceptance of
only whole shares of Stock. No cash in lieu of fractional shares shall be paid. Unless and until
a certificate or certificates representing such shares shall have been issued by the Company to
Employee, Employee (or the person permitted to exercise this Option in the event of Employee’s
death) shall not be or have



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any of the rights or privileges of a shareholder of the Company with respect to shares
acquirable upon an exercise of this Option.



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



     4. Withholding of Tax. The Company shall have the right to deduct in connection with
this Option any taxes required by law to be withheld and to require any payments required to enable
it to satisfy its withholding obligations. To the extent that the exercise of this Option or the
disposition of shares of Stock acquired by exercise of this Option results in compensation income
or wages to Employee for federal, state or local tax purposes, Employee shall deliver to the
Company at the time of such exercise or disposition such amount of money as the Company may require
to meet its minimum obligation under applicable tax laws or regulations. Employee may elect with
respect to this Option to surrender or authorize the Company to withhold shares of Stock (valued at
their Fair Market Value on the date of surrender or withholding of such shares) to satisfy any tax
required to be withheld upon exercise of this Option. An election pursuant to the preceding
sentence shall be referred to herein as a “Stock Withholding Election.” All Stock Withholding
Elections shall be made by written notice to the Company’s Corporate Secretary (or such other
officer or employee of the Company as the Company may designate from time to time). If Employee is
not a Section 16 Person (as hereinafter defined), Employee may revoke such election by delivering
to the Company’s Corporate Secretary (or such other designated officer or employee) written notice
of such revocation prior to the date such election is implemented through actual surrender or
withholding of shares of Stock (the “Withholding Date”). If Employee is a Section 16 Person, the
Stock Withholding Election must:



     (a) be irrevocable and made six months prior to the Withholding Date; or



     (b) (i) be approved by the Board or Committee either before or after such election is made,
(ii) be made, and the Withholding Date occur, during a period beginning on the third business day
following the date of release by the Company for publication of quarterly and annual summary
statements of sales and earnings and ending on the twelfth business day following such date, and
(iii) be made more than six months after the Effective Date; or



     (c) be made in connection with (i) a delivery to the Company of shares of Stock owned by
Employee prior to the exercise of this Option to satisfy the portion of the tax required to be
withheld with respect to those shares of Stock received by Employee upon exercise of this Option
for which payment of the purchase price was made to the Company in shares of Stock



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owned by Employee prior to the exercise of this Option pursuant to Paragraph 3 hereof and (ii)
the exercise of this Option more than six months after the Effective Date.



     If Employee fails to pay the required amount to the Company or fails to make a Stock
Withholding Election, the Company is authorized to withhold from any cash remuneration (or, if
Employee is not a Section 16 Person, Stock remuneration, including withholding any shares of Stock
distributable to Employee upon exercise of this Option) then or thereafter payable to Employee any
tax required to be withheld by reason of the exercise of this Option or the disposition of shares
of Stock acquired by exercise of this Option. For purposes of this Agreement, the term “Section 16
Person” means an officer, director or affiliate of the Company or a former officer, director or
affiliate of the Company who is subject to Section 16 of the Securities Exchange Act of 1934, as
amended (“1934 Act”).



     5. Status of Stock. The Company shall not be obligated to issue any Stock pursuant to
this Option at any time when the shares covered hereby have not been registered under the
Securities Act of 1933, as amended (the “1933 Act”), and such other state and federal laws, rules
and regulations as the Company, the Board or Committee deems applicable and, in the opinion of
legal counsel for the Company, there is no exemption from the registration requirements of such
laws, rules and regulations available for the issuance and sale of such shares. The Company
intends to register for issuance under the 1933 Act the shares of Stock acquirable upon exercise of
this Option, and to keep such registration effective throughout the period this Option is
exercisable. In the absence of such effective registration or an available exemption from
registration under the 1933 Act, issuance of shares of Stock acquirable upon exercise of this
Option will be delayed until registration of such shares is effective or an exemption from
registration under the 1933 Act is available. The Company intends to use its reasonable efforts to
ensure that no such delay will occur. In the event exemption from registration under the 1933 Act
is available upon an exercise of this Option, Employee (or the person permitted to exercise this
Option in the event of Employee’s death or incapacity), if requested by the Company to do so, will
execute and deliver to the Company in writing an agreement containing such provisions as the
Company may require to assure compliance with applicable securities laws.



     Employee agrees that the shares of Stock which Employee may acquire by exercising this Option
will not be sold or otherwise disposed of in any manner which would constitute a violation of any
applicable federal or state securities laws. Employee also agrees that (i) the certificates
representing the shares of Stock purchased under this Option may bear such legend or legends as the
Board or Committee deems appropriate in order to assure compliance with applicable securities laws,
(ii) the Company may refuse to register the transfer of the shares of Stock purchased under this
Option on the stock transfer records of the Company if such proposed transfer would in the opinion
of counsel satisfactory to the Company constitute a violation of any applicable securities law, and
(iii) the Company may give related instructions to its transfer agent, if any, to stop registration
of the transfer of the shares of Stock purchased under this Option.



     6. Recapitalization or Reorganization




     (a) No Effect on Right or Power. The existence of this Option shall not affect
in any way the right or power of the Board or the shareholders of the Company to make



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or authorize any adjustment, recapitalization, reorganization or other change in the
Company’s or any Affiliate’s capital structure or its business, any merger or consolidation
of the Company or any Affiliate, any issue of debt or equity securities ahead of or
affecting the Stock or the rights thereof, the dissolution or liquidation of the Company or
any Affiliate or any sale, lease, exchange or other disposition of all or any part of its
assets or business or any other corporate act or proceeding.




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




     (c) Recapitalizations and Corporate Changes. If the Company recapitalizes,
reclassifies its capital stock, or otherwise changes its capital structure (a
“recapitalization”), the number and class of shares of Stock in respect of which this Option
has not been exercised shall be adjusted so that this Option shall thereafter cover the
number and class of shares of stock and securities to which Employee would have been
entitled pursuant to the terms of the recapitalization if, immediately prior to the
recapitalization, Employee had been the holder of record of the number of shares of Stock
then covered by this Option. If (i) the Company shall not be the surviving entity in any
merger or consolidation (or survives only as a subsidiary of an entity), (ii) the Company
sells, leases or exchanges or agrees to sell, lease or exchange all or substantially all of
its assets to any other person or entity, (iii) the Company is to be dissolved and
liquidated, (iv) any person or entity, including a “group” as contemplated by Section
13(d)(3) of the 1934 Act, acquires or gains ownership or control (including, without
limitation, power to vote) of more than 40% of the outstanding shares of the Company’s
voting stock (based upon voting power), or (v) as a result of or in connection with a
contested election of Directors (defined below), the persons who were Directors of the
Company before such election shall cease to constitute a majority of the Board (each such
event is referred to herein as a “Corporate Change”), no later than (x) 10 days after the
approval by the shareholders of the Company of such merger, consolidation, reorganization,
sale, lease or exchange of assets or dissolution or such election of Directors or (y) 30
days after a Corporate Change of the type described in clause (iv), the Board or Committee,
acting in its sole discretion without the consent or approval of Employee, shall effect one
or more of the following alternatives in an equitable and appropriate manner to prevent
dilution or enlargement of the benefits or potential benefits intended to be made available
under this Option, which alternatives may vary among individual holders of options or other
derivative or other securities of the Company and which may vary among options or other
derivative or other securities of the Company held by Employee: (1) accelerate the time at
which this Option may be exercised so that



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it may be exercised in full for a limited period of time on or before a specified date
(before or after such Corporate Change) fixed by the Board or Committee, after which
specified date, this Option, to the extent theretofore not exercised, and all rights of
Employee in respect thereof shall terminate, (2) require the mandatory surrender to the
Company by Employee of this Option (irrespective of whether it then is exercisable) as of a
date, before or after such Corporate Change, specified by the Board or Committee, in which
event the Board or Committee shall thereupon cancel this Option and the Company shall pay
(or cause to be paid) to Employee an amount of cash per share equal to the excess, if any,
of the Change of Control Value (as calculated in accordance with subparagraph (d) below) of
the shares subject to this Option over the exercise price under this Option for such shares,
or (3) make such adjustments to this Option as the Board or Committee deems appropriate to
reflect such Corporate Change (provided, however, that the Board or Committee may determine
in its sole discretion that no adjustment is necessary to this Option), including, without
limitation, adjusting this Option to provide that the number and class of shares of Stock
covered by this Option shall be adjusted so that this Option shall thereafter cover
securities of the surviving or acquiring corporation or other property (including, without
limitation, cash) as determined by the Board or Committee in its sole discretion.
“Director” means an individual elected to the Board by the shareholders of the Company or by
the Board under applicable corporate law who is serving on the Board on the Effective Date
or is elected to the Board after such date.




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




     (e) Other Changes in the Stock. In the event of changes in the outstanding
Stock by reason of recapitalizations, reorganizations, mergers, consolidations,
combinations, split-ups, split-offs, spin-offs, exchanges or other relevant changes in
capitalization or distributions to the holders of Stock occurring after the Effective Date
and not otherwise provided for by this Paragraph 6, this Option shall be subject to
adjustment by the Board or Committee at its sole discretion as to the number and price of
            shares of Stock or other consideration subject to this Option. In the event of any such
change in the outstanding Stock or distribution to the holders of Stock, the aggregate
number of shares available under this Option may be appropriately adjusted by the Board or
Committee, whose determination shall be conclusive.



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




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



     7. Employment Relationship. For purposes of this Agreement, Employee shall be
considered to be in the employment of the Company as long as Employee remains an employee of either
the Company, an Affiliate, or a corporation or a parent or subsidiary of such corporation assuming
or substituting a new option for this Option. Without limiting the scope of the preceding
sentence, it is expressly provided that Employee shall be considered to have terminated employment
with the Company at the time of the termination of the “Affiliate” status of the entity or other
organization that employs Employee and the Company. Nothing contained in this Option shall (i)
confer upon Employee any right with respect to continuation of employment with the Company or any
Affiliate or (ii) interfere in any way with the right of the Company or any Affiliate to terminate
his or her employment at any time. Any question as to whether and when there has been a
termination of such employment, and the cause of such termination, shall be determined by the Board
or Committee and its determination shall be final.



     8. No Restriction on Corporate Action. Nothing contained herein shall be construed to
prevent the Company or any Affiliate from taking any action which is deemed by the Company or such
Affiliate to be appropriate or in its best interest, whether or not such action would have an
adverse effect on this Option. Neither Employee nor any other person shall have any claim against
the Company or any Affiliate as a result of any such action.



     9. Transfer Restrictions and Binding Effect. This Option and Employee’s rights and
duties under this Agreement shall not be transferable or delegable otherwise than (i) by will or
the laws of descent and distribution, (ii) pursuant to a qualified domestic relations order as
defined by the Code or Title I of the Employee Retirement Income Security Act of 1974, as amended,
or the rules thereunder, or (iii) with the consent of the Board or Committee. This Agreement shall
be binding upon and inure to the benefit of any successors to the Company and all persons lawfully
claiming under Employee.



     10. Entire Agreement. This Agreement constitutes the entire agreement of the parties
with regard to the subject matter hereof; provided, that the terms of this Agreement shall not
modify and shall be subject to the terms and conditions of any employment or severance agreement
between the Company (or an Affiliate) and the Employee in effect on the date a determination is
made under this Agreement. Without limiting the scope of the preceding sentence, (i) all prior
understandings and agreements, if any, among the parties hereto relating to the subject matter
hereof are hereby null and void and of no further force and effect, and (ii) this Agreement and
this Option replace the Forest Stock Option to the extent pertaining to the



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Unvested Forest Stock Option, and Employee shall have no right or claim against the Company or
its Affiliates in respect of the Forest Stock Option. Any modification of this Agreement shall be
effective only if it is in writing and signed by both Employee and an authorized officer of the
Company. Employee acknowledges that the terms and conditions of this Option and Agreement, as may
be amended from time to time, may not be identical to the terms and conditions of other options or
derivative or other securities of the Company outstanding from time to time.



     11. Governing Law. This Agreement shall be governed by, and construed in accordance
with, the laws of the State of Delaware, without regard to conflicts of laws principles thereof,
and applicable federal law.



     IN WITNESS WHEREOF, the Company has caused this Agreement to be duly executed by its officer
thereunto duly authorized, and Employee has executed this Agreement, all as of the day and year
first above written.



	 	 	 	 	 	 	 
	 	 	MARINER ENERGY, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

[Employee Name]
	 	 
	 

	 	SS#:	 	 	 	 







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