exv10w4






Exhibit 10.4




Restricted Stock Agreement

MARINER ENERGY, INC.

THIRD AMENDED AND RESTATED STOCK INCENTIVE PLAN




	 	 	 	 	 
	Employee:
	 	 	 	 
	 
	 	 	 
	 
	 	 	 	 
	Date of Grant:
	 	 	 	 
	 
	 	 	 
	 
	 	 	 	 
	RS Grant Number:
	 	 	 	 
	 
	 	 	 
	 
	 	 	 	 
	Number of Restricted Shares Granted:
	 	 	 	 
	 
	 	 	 





     1. Notice of Grant. Subject to the terms and conditions of the Mariner Energy, Inc.
Third Amended and Restated Stock Incentive Plan, as may be amended or restated from time to time
(the “Plan”), and this Agreement, you are hereby granted pursuant to the Plan the above number of
restricted shares of Common Stock (“Restricted Stock”) of Mariner Energy, Inc. (the “Company”).



     2. Vesting of Restricted Stock. Subject to the further provisions of this Agreement,
the shares of Restricted Stock shall become vested in accordance with the following schedule:



	 	 	 	 	 
	 	 	Cumulative
	Date	 	Vested Percentage
	Prior to
	 	 	0	%
	 
	 	 	25	%
	 
	 	 	50	%
	 
	 	 	75	%
	 
	 	 	100	%






     Notwithstanding the above vesting schedule, but subject to the further provisions hereof, upon
the occurrence of the following events the unvested shares of Restricted Stock shall vest or be
forfeited as provided below:




     (a) Disability. If 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, the unvested shares of Restricted Stock shall become fully vested.




     (b) Death. If you die while in the employ of the Company, the unvested shares
of Restricted Stock shall become fully vested.




     (c) By the Company other than for Cause. If your employment with the Company
is terminated by the Company for any reason other than for Cause (as defined below), the
unvested shares of Restricted Stock shall become fully vested. For purposes of this Section
2, the term “Cause” shall have 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, shall mean (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.




     (d) Termination for Cause or other than for Good Reason. If your employment
with the Company is terminated by the Company for Cause or by you other than for a Good
Reason (as defined below), the unvested shares of Restricted Stock shall be forfeited
without consideration. For purposes of this Section 2, the term “Good Reason” shall have
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, shall mean (i) a material
adverse change in the nature or scope of your authorities, powers, duties and functions
performed occurring more than six months following the Date of Grant; 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.




     (e) For Good Reason. If your employment with the Company is terminated by you
for Good Reason, the unvested shares of Restricted Stock shall become fully vested.




     (f) Change of Control. If you have been continuously employed by the Company
from the Date of Grant to the date upon which a Change of Control occurs, then the unvested shares of Restricted Stock shall become fully vested upon the date of such Change of
Control.



     For purposes of this Agreement, “Change of Control” shall mean, 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.



     For purposes of this Agreement, “employment with the Company” shall include being an employee
of the Company or a Parent Entity or Subsidiary.



     All shares of Restricted Stock that are not vested on or before your termination of employment
with the Company as provided above shall be automatically cancelled and forfeited without
consideration upon your termination.



     All cash dividends on unvested shares of Restricted Stock held by you shall be paid to you no
later than the later of (i) the end of the calendar year in which the dividends are paid to
shareholders of Company Common Stock or (ii) the 15th day of the third month following
the date the dividends are paid to shareholders. Any stock dividends shall result in an automatic
adjustment to the number of shares of Restricted Stock subject to the vesting provisions of this
award in accordance with the terms of the Plan.



 - 2 - 









 





     3. Book Entry. A book entry evidencing the shares of Restricted Stock shall be made
in your name in the books of the Company maintained by its transfer agent, pursuant to which you
shall have all of the rights of a shareholder of the Company (except with respect to distributions
as provided above) with respect to the shares of Restricted Stock, including, without limitation,
voting rights. The book entry shall reflect the restrictions on transfer set forth in Section 4
below. Upon vesting, the Company shall cause the book entry to be amended to remove any
restrictions (except for any restrictions required pursuant to applicable securities laws or any
other agreement to which you are a party) with respect to the shares of Restricted Stock that have
vested.



     4. Nontransferability of Restricted Stock. Prior to vesting, you may not sell,
transfer, pledge, exchange, hypothecate or dispose of the shares of Restricted Stock in any manner
otherwise than by will or by the laws of descent or distribution. A breach of the terms of this
Agreement shall cause a forfeiture of all shares of unvested Restricted Stock.



     5. Entire Agreement; Governing Law. The Plan is incorporated herein by reference.
The Plan and this Agreement constitute the entire agreement of the parties with respect to the
subject matter hereof and thereof and supersede in their entirety all prior undertakings and
agreements of the Company and you with respect to the subject matter hereof, and may not be
modified adversely to your interest except by means of a writing signed by the Company and you.
This Agreement is governed by the internal substantive laws, but not the choice of law rules, of
the State of Texas.



     6. Withholding of Tax. To the extent that the receipt of the shares of Restricted
Stock or the vesting thereof results in income to you for federal, state or other tax purposes,
unless the Company agrees otherwise, you shall either pay the Company an amount of cash equal to
the Company’s tax withholding obligations or have the Company withhold and cancel from the number
of shares of Restricted Stock awarded you such number of shares of Restricted Stock as the Company
determines to be necessary to satisfy the tax required to be withheld by the Company; provided
however, that (a) if you fail to satisfy the Company’s tax withholding obligations, the Company, in
its sole discretion, may withhold and cancel from the number of shares of Restricted Stock awarded
you such number of shares of Restricted Stock as it determines to be necessary to satisfy the tax
required to be withheld by the Company and (b) if the vesting of shares of Restricted Stock occurs
as the result of your death while in the employ of the Company, the Company shall withhold and
cancel from the number of shares of Restricted Stock awarded you such number of shares of
Restricted Stock as it determines to be necessary to satisfy the tax required to be withheld by the
Company.



     7. Amendment. Except as provided below, this Agreement may not be modified in any
respect by any verbal statement, representation or agreement or by any employee, officer, or
representative of the Company or by any written agreement unless signed by you and by an officer of
the Company who is expressly authorized by the Company to execute such document. The grant of
Restricted Stock and payment of dividends, whether cash or stock, with respect thereto are intended
to be exempt from Section 409A of the Internal Revenue Code and the regulations promulgated
thereunder and shall be interpreted and administered consistently with such intent.
Notwithstanding anything in the Plan or this Agreement to the contrary, if the Committee determines
that the terms of this grant do not, in whole or in part, satisfy the requirements of Section 409A
of the Internal Revenue Code, to the extent applicable, the Committee, in its sole discretion, may
unilaterally modify this Agreement in such manner as it deems appropriate to comply with such
section and any regulations or guidance issued thereunder.



 - 3 - 









 





     8. Status of Stock. You agree that the shares of Restricted Stock issued under this
Agreement will not be sold or otherwise disposed of in any manner that would constitute a violation
of the terms and provisions of any applicable federal or state securities laws. You also agree
that (i) the book entry made (or the certificates, if any are issued) representing the shares of
Restricted Stock may bear such restriction, restrictions, legend or legends as the Committee deems
appropriate, (ii) the Company may refuse to register the transfer of the Restricted Stock on the
stock transfer records of the Company if such proposed transfer would, in the opinion of counsel
satisfactory to the Company, be contrary to the terms and provisions 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 Restricted Stock.



     9. General. You agree that the shares of Restricted Stock are granted under and
governed by the terms and conditions of the Plan and this Agreement. In the event of any conflict,
the terms of the Plan shall control. Unless otherwise defined herein, capitalized terms used but
not defined herein shall have the meanings assigned such terms in the Plan.



     Executed by Mariner Energy, Inc. as of



	 	 	 	 	 
	 	MARINER ENERGY, INC.

 	 
	 	By:  	 	 
	 	 	Scott D. Josey 	 
	 	 	Chief Executive Officer and President 	 
	 
	 	[NAME]

 	 
	 	
 	 
	 	Signature 	 




 - 4 -