UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14A
PROXY STATEMENT PURSUANT TO SECTION 14(a) OF THE SECURITIES
EXCHANGE ACT OF 1934
Filed by the Registrant
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Filed by a Party other than the Registrant
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Check the appropriate box:
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Preliminary Proxy Statement
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Confidential, for Use of the Commission Only (as permitted by Rule 14a-
6(e)(2)
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Definitive Proxy Statement
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Definitive Additional Materials
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Soliciting Material Pursuant to §240.14a-12
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MARINER ENERGY, INC.
(Name of Registrant as Specified In Its Charter)
(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
Payment of Filing Fee (Check the appropriate box):
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No fee required.
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Fee computed on table below per Exchange Act Rules 14a-6(i)(1) and 0-11.
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Title of each class of securities to which transaction applies:
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Aggregate number of securities to which transaction applies:
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3)
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Per unit price or other underlying value of transaction computed pursuant to Exchange Act
Rule 0-11 (set forth the amount on which the filing fee is calculated and state how it was
determined):
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4)
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Proposed maximum aggregate value of transaction:
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5)
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Total fee paid:
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Fee paid previously with preliminary materials.
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Check box if any part of the fee is offset as provided by Exchange Act Rule 0-11(a)(2)
and identify the filing for which the offsetting fee was paid previously. Identify the
previous filing by registration statement number, or the Form or Schedule and the date of its
filing.
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1)
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Amount Previously Paid:
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2)
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Form, Schedule or Registration Statement No.:
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3)
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Filing Party:
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4)
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Date Filed:
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On April
29, 2010, the following materials were distributed to employees of
Mariner Energy, Inc.:
Pending Acquisition of Mariner Energy, Inc. by Apache Corporation
SUMMARY OF EMPLOYEE EQUITY MATTERS
This summary is entirely qualified by reference to (i) the Agreement and Plan of Merger, by and
among Apache Corporation, ZMZ Acquisitions LLC, and Mariner Energy, Inc., dated April 14, 2010 (the
Merger Agreement), and (ii) your restricted stock and deferred cash bonus awards.
Unvested Awards
If you remain employed by Mariner until the closing date:
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Your unvested standard annual restricted stock awards fully vest. Full vesting occurs as a
result of the terms of these awards.
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Any long-term performance-based restricted stock awards vest 40% and the remaining 60% are
cancelled. Partial vesting of these awards occurs solely as a result of the terms of the
merger; otherwise, under the terms of these awards, 100% would be forfeited.
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Vested Stock and Option Awards
Upon closing:
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Each share of Mariner common stock that you own will convert into either (i) 0.17043 of a
share of Apache common stock plus $7.80 in cash, (ii) 0.24347 of a share of Apache common
stock, or (iii) $26.00 in cash, in all cases, subject to an election feature and proration
under the terms of the merger described further below.
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Each unexercised option to purchase Mariner common stock that you own will convert into a
fully vested option to purchase 0.24347 of a share of Apache common stock; the number of
shares and exercise price of your Apache stock option will be economically equivalent to your
Mariner stock option. This conversion occurs under the terms of the merger described further
below.
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Merger Agreement Excerpts
The following excerpts from the Merger Agreement pertain to your Mariner common stock and options.
Some defined terms are followed by Section 1.6 (
Conversion of Securities
), Section 1.7 (
Employee
Stock Options; Restricted Shares
) and Section 1.9 (
Election Procedures; Allocation of Merger
Consideration
) of the Merger Agreement. Please refer to the complete Merger Agreement filed as
Exhibit 2.1 to Mariners Form 8-K filed with the Securities and Exchange Commission (SEC) on
April 16, 2010, available on the SECs website at
www.sec.gov
or on Mariners website under
Investor Information, SEC Filings.
April 14, 2010
Page 1 of 9
Cash Amount Per Share
means $7.80 per share.
Company
means Mariner Energy, Inc., a Delaware corporation.
Exchange Ratio
means 0.24347 shares of Parent Common Stock.
Merger
means the merger of the Company with and into Merger Sub.
Merger Sub
means ZMZ Acquisitions LLC, a wholly owned subsidiary of Parent.
Parent
means Apache Corporation, a Delaware corporation.
Parent Common Stock
means the common stock, par value $0.625 per share of Parent.
Per Share Cash Consideration
means $26.00 in cash.
Per Share Mixed Consideration
means the combination of (i) the Cash Amount Per Share and
(ii) 0.17043 shares of Parent Common Stock.
Per Share Stock Consideration
means a number of shares (which need not be a whole number) of
Parent Common Stock equal to the Exchange Ratio.
Share
means each issued and outstanding share of common stock, par value $.0001 per share of
the Company.
Section 1.6
Conversion of Securities
. At the Effective Time, by virtue of the Merger and
without any action on the part of Merger Sub, the Company or the holders of any of the Shares:
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(a)
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Each Share issued and outstanding immediately prior to the Effective Time
(other than any Shares to be canceled pursuant to Section 1.6(b) and any Dissenting
Shares (as herein defined)) shall be canceled and shall be converted automatically into
the right to receive, at the election of the holder as provided in and subject to
Sections 1.9 and 1.10, either (i) the Per Share Stock Consideration, (ii) the Per Share
Cash Consideration or (iii) the Per Share Mixed Consideration (together, the
Merger
Consideration
), payable, without interest, to the holder of such Share, upon
surrender, in the manner provided in Section 1.10, of the certificate that formerly
evidenced such Share. As of the Effective Time, all such Shares shall no longer be
outstanding and shall automatically be canceled and retired and shall cease to exist,
and each holder of a Certificate representing any such Shares shall cease to have any
rights with respect thereto, except the right to receive (i) the Merger Consideration;
(ii) any cash in lieu of fractional shares of Parent Common Stock, if any, to be issued
or paid in consideration therefor upon surrender of such Certificate in accordance with
Section 1.10; and (iii) any dividends or distributions in accordance with Section
1.10(e);
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(b)
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Each Share held in the treasury of the Company and each Share owned by Merger
Sub, Parent or any direct or indirect wholly owned subsidiary of Parent or of the
Company immediately prior to the Effective Time shall be canceled without any
conversion thereof and no payment or distribution shall be made with respect
thereto;
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April 14, 2010
Page 2 of 9
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(c)
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The Merger Consideration shall be adjusted to reflect fully the effect of any
stock split, reverse split, stock dividend, reorganization, recapitalization,
consolidation, exchange or other like change with respect to Parent Common Stock or
Company Common Stock occurring after the date hereof and prior to the Effective Time
(including any dividend or distribution on the Parent Common Stock or the Company
Common Stock of securities convertible into Parent Common Stock or Company Common
Stock, as applicable); and
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(d)
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For purposes of this Agreement, each of the following terms has the meaning set
forth below:
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Cash Amount Per Share
shall mean $7.80 per share.
Deemed Shares Outstanding
means the total number of shares of the Company Common Stock
outstanding;
provided
,
however
, that regardless of the actual number of shares of the Company
Common Stock outstanding, in no event shall the Deemed Shares Outstanding exceed the sum of (a)
102,045,275 (103,241,493 shares issued and outstanding on April 14, 2010 less 1,196,218 shares of
restricted Company Common Stock granted by the Company pursuant to the 2008 Long-Term
Performance-Based Restricted Stock Program), (b) the aggregate number of shares of the Company
Common Stock, if any, that are issued after the date hereof by the Company upon the exercise of
Options (all as disclosed in Section 2.3 and as exercised or vested in accordance with their
terms), (c) the number of shares approved by Parent for grant pursuant to Section 4.1, (d) shares
issued in accordance with Section 4.1 of the Company Schedule, and (e) the number of shares with
respect to which restrictions shall lapse pursuant to Section 1.7(c).
Exchange Ratio
means 0.24347 shares of Parent Common Stock.
Per Share Cash Consideration
means $26.00 in cash.
Per Share Mixed Consideration
means the combination of (i) the Cash Amount Per Share and
(ii) 0.17043 shares of Parent Common Stock.
Per Share Stock Consideration
means a number of shares (which need not be a whole number) of
Parent Common Stock equal to the Exchange Ratio.
Total Cash Amount
means the product obtained by multiplying the Deemed Shares Outstanding by
the Cash Amount Per Share.
April 14, 2010
Page 3 of 9
Section 1.7
Employee Stock Options; Restricted Shares
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(a)
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At the Effective Time, each stock option to purchase Shares granted (and not
exercised, expired or terminated) pursuant to a Company Benefit Plan providing for
grants of equity-based incentive awards or any other stock option, stock bonus, stock
award, or stock purchase plan, program or arrangement of the Company or any of the
Companys subsidiaries or any predecessor thereof or any other contract or agreement
entered into by the Company or any of the Companys subsidiaries (collectively,
Stock
Incentive Plan
) that is then outstanding (in each case, an
Option
), whether or not
then exercisable or vested, shall by virtue of the Merger and without any action on the
part of any holder of any outstanding Option, be converted into a fully exercisable
option (i) to purchase the number of shares of Parent Common Stock (calculated on an
aggregate basis with respect to all Company Common Stock subject to a given Option with
the same terms under such Option) obtained by multiplying the number of shares of
Company Common Stock issuable upon exercise of such Option by the Exchange Ratio (with
any resulting number of shares that contain a fraction of a share being decreased to
the next whole number of shares), and (ii) at an exercise price per share of Parent
Common Stock equal to the per share Company Common Stock exercise price pursuant to
such Option divided by the Exchange Ratio (with any resulting exercise price that
contains a fraction of a cent being increased to the next whole cent), and (iii)
otherwise upon terms and conditions equivalent to such outstanding Options. The
assumption and conversion of an Option pursuant to this Section 1.7(a) shall be deemed
a release of any and all rights the holder had or may have to purchase Shares in
respect of such Option. Prior to the Effective Time, the Company shall communicate the
conversion in this Section 1.7(a) to each holder of Option(s) in a written notice.
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(b)
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Immediately prior to the Effective Time, all restrictions on each outstanding
award of restricted Company Common Stock granted by the Company pursuant to any Stock
Incentive Plan that is not subject to a price condition or other condition that has not
been satisfied prior to the date of this Agreement or that has not lapsed pursuant to
the terms of an employment agreement and specifically excluding the 2008 Long-Term
Performance-Based Restricted Stock Program (the
Restricted Shares
) shall, without any
action on the part of the holder thereof, the Company or Parent, lapse at that time,
and each such Restricted Share shall become fully vested in each holder thereof at that
time, and each such Restricted Share will be treated at the Effective Time the same as,
and have the same rights and be subject to the same conditions as, each share of
Company Common Stock not subject to any restrictions, except that upon vesting the
holder may satisfy the applicable withholding Tax obligations by payment by cash or
check or by returning to the Surviving Company a sufficient number of shares of Company
Common Stock equal in value to that obligation. Prior to the Effective Time, the
Company, the Company Board of Directors and the Compensation Committee of the Company
Board of Directors shall take any actions necessary under the Companys Stock Incentive
Plans, the award agreements thereunder and otherwise to effectuate this Section 1.7(b).
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April 14, 2010
Page 4 of 9
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(c)
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Immediately prior to the Effective Time, all restrictions on 40% of each award
relating to the 1,196,218 shares of restricted Company Common Stock granted by the
Company pursuant to the 2008 Long-Term Performance-Based Restricted Stock Program, that
are subject to a price condition that has not been satisfied prior to the date of this
Agreement shall, without any action on the part of the holder thereof, the Company or
Parent, lapse at that time, and shall become fully vested in the holder thereof at that
time, and each such share will be treated at the Effective Time the same as, and have
the same rights and be subject to the same conditions as, each share of Company Common
Stock not subject to any restrictions, except that upon vesting the holder may satisfy
the applicable withholding Tax obligations by payment by cash or check or by returning
to the Surviving Company a sufficient number of shares of Company Common Stock equal in
value to that obligation. Prior to the Effective Time, the Company, the Company Board
of Directors and the Compensation Committee of the Company Board of Directors shall
take any actions necessary under the Companys Stock Incentive Plans, the award
agreements thereunder and otherwise to effectuate this Section 1.7(c). For the
avoidance of doubt, all other shares of restricted Company Common Stock granted by the
Company pursuant to the 2008 Long-Term Performance-Based Restricted Stock Program shall
be cancelled.
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Section 1.9
Election Procedures; Allocation of Merger Consideration
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(a)
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An election form and other appropriate and customary transmittal materials
(which shall specify that delivery shall be effected, and risk of loss and title to the
Certificates theretofore representing shares of the Company Common Stock shall pass,
only upon proper delivery of such Certificates to the Exchange Agent or, in the case of
Book-Entry Shares, upon adherence to the procedures set forth therein) in such form as
Parent shall specify and as shall be reasonably acceptable to the Company (the
Election Form
) and pursuant to which each holder of record of shares of the Company
Common Stock as of the close of business on the Election Form Record Date may make an
election pursuant to this Section 1.9, shall be mailed at the same time as the Proxy
Statement/Prospectus or at such other time as the Company and Parent may agree (the
date on which such mailing is commenced or such other agreed date, the
Mailing Date
)
to each holder of record of the Company Common Stock as of the close of business on the
record date for notice of the Company Stockholders Meeting (the
Election Form Record
Date
).
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(b)
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Each Election Form shall permit the holder (or the beneficial owner through
appropriate and customary documentation and instructions), other than any holder of
Dissenting Shares, to specify (i) the number of shares of such holders Company Common
Stock with respect to which such holder elects to receive the Per Share Mixed
Consideration (
Mixed Consideration Election Shares
), (ii) the number of shares of
such holders Company Common Stock with respect to which such holder elects to receive
Per Share Stock Consideration (
Stock Election Shares
), (iii) the number of shares of
such holders Company Common Stock with respect to which such holder elects to receive
the Per Share Cash Consideration (
Cash Election Shares
), or (iv) that such holder
makes no election with respect to such holders Company Common Stock (
Non-Election
Shares
). Any Company Common Stock with respect to which the Exchange Agent has not
received an effective, properly completed Election Form on or before 5:00 p.m., New
York time, on the 33rd day following the Mailing Date (or
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April 14, 2010
Page 5 of 9
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such other time and date as the Company and Parent shall agree) (the
Election
Deadline
) (other than any shares of the Company Common Stock that constitute
Dissenting Shares as of such time) shall also be deemed to be Non-Election Shares.
Parent and the Company may agree to extend such deadline to such other date as is
agreed to by Parent and the Company, and the Company and Parent shall make a public
announcement of such new Election Deadline, if any.
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(c)
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Parent shall make available one or more Election Forms as may reasonably be
requested from time to time by all persons who become holders (or beneficial owners) of
the Company Common Stock between the Election Form Record Date and the close of
business on the business day prior to the Election Deadline, and the Company shall
provide to the Exchange Agent all information reasonably necessary for it to perform as
specified herein.
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(d)
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Any such election shall have been properly made only if the Exchange Agent
shall have actually received a properly completed Election Form by the Election
Deadline. An Election Form shall be deemed properly completed only if accompanied by
(i) one or more Certificates (or customary affidavits and indemnification regarding the
loss or destruction of such Certificates or the guaranteed delivery of such
Certificates) representing all certificated shares of the Company Common Stock covered
by such Election Form or (ii) in the case of Book-Entry Shares, any additional
documents specified by the procedures set forth in the Election Form, together with
duly executed transmittal materials included in the Election Form. Any Election
Form may be revoked or changed by the person submitting such Election Form prior to the
Election Deadline. In the event an Election Form is revoked prior to the Election
Deadline, the shares of the Company Common Stock represented by such Election
Form shall become Non-Election Shares and Parent shall cause the Certificates, if any,
representing the Company Common Stock to be promptly returned without charge to the
person submitting the Election Form upon written request to that effect from the holder
who submitted the Election Form, except to the extent (if any) a subsequent election is
properly made with respect to any or all of the applicable shares of the Company Common
Stock. Subject to the terms of this Agreement and of the Election Form, the Exchange
Agent shall have reasonable discretion to determine whether any election, revocation or
change has been properly or timely made and to disregard immaterial defects in the
Election Forms, and any good faith decisions of the Exchange Agent regarding such
matters shall be binding and conclusive. None of Parent, Merger Sub or the Exchange
Agent shall be under any obligation to notify any person of any defect in an Election
Form.
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(e)
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Parent shall cause the Exchange Agent to allocate among the holders of the
Company Common Stock with rights to receive Merger Consideration in accordance with the
Election Form as follows:
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(i)
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Mixed Consideration
.
Each Mixed Consideration Election Share
and each Non-Election Share shall be converted into the right to receive the
Per Share Mixed Consideration.
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April 14, 2010
Page 6 of 9
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(ii)
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Cash Election Shares for more than Total Cash Amount
. If the
product obtained by multiplying (x) the number of Cash Election Shares by
(y) the Per Share Cash Consideration is greater than the Total Cash Amount less
the aggregate cash paid to holders of Mixed Consideration Election Shares and
Non-Election Shares, then:
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(A)
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All Stock Election Shares shall be converted
into the right to receive the Per Share Stock Consideration,
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(B)
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The Exchange Agent shall then select from among
the Cash Election Shares, pro rata to the holders of Cash Election
Shares in accordance with their respective numbers of Cash Election
Shares (except as provided in the last paragraph of this
Section 1.9(e)), a sufficient number of shares (
Stock Designated
Shares
) such that the aggregate cash amount that will be paid in the
Merger equals as closely as practicable the Total Cash Amount, and all
Stock Designated Shares shall be converted into the right to receive
the Per Share Stock Consideration, and
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(C)
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The Cash Election Shares that are not Stock
Designated Shares will be converted into the right to receive the Per
Share Cash Consideration.
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(iii)
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Cash Election Shares for less than Total Cash Amount
. If the
product obtained by multiplying (x) the number of Cash Election Shares by (y)
the Per Share Cash Consideration is less than the Total Cash Amount less the
aggregate cash paid to holders of Mixed Consideration Election Shares and
Non-Election Shares, then:
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(A)
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All Cash Election Shares shall be converted
into the right to receive the Per Share Cash Consideration,
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(B)
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The Exchange Agent shall then select from among
the Stock Election Shares, in each case pro rata to the holders of
Stock Election Shares in accordance with their respective numbers of
Stock Election Shares, as the case may be, a sufficient number of
shares (
Cash Designated Shares
) such that the aggregate cash amount
that will be paid in the Merger equals as closely as practicable the
Total Cash Amount, and all Cash Designated Shares shall be converted
into the right to receive the Per Share Cash Consideration, and
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(C)
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The Stock Election Shares that are not Cash
Designated Shares shall be converted into the right to receive the Per
Share Stock Consideration.
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April 14, 2010
Page 7 of 9
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(iv)
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Cash Election Shares equal to Total Cash Amount
. If the product
obtained by multiplying (x) the number of Cash Election Shares by (y) the Per
Share Cash Consideration is equal to the Total Cash Amount less the aggregate
cash paid to holders of Mixed Consideration Election Shares and Non-Election
Shares, then subparagraphs (ii) and (iii) above shall not apply and all Cash
Election Shares shall be converted into the right to receive the Per Share Cash
Consideration and all Stock Election Shares shall be converted into the right
to receive the Per Share Stock Consideration.
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Notwithstanding anything in this Agreement to the contrary, to the fullest extent permitted by
Delaware Law, for purposes of determining the allocations set forth in this Section 1.9, Parent
shall have the right to require, but not the obligation to require (unless such requirement is
necessary to satisfy the conditions set forth in Section 6.2(e) or Section 6.3(d)), that any shares
of the Company Common Stock that constitute Dissenting Shares as of the Election Deadline be
treated as Cash Election Shares not subject to the pro rata selection process contemplated by this
Section 1.9.
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(f)
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The pro rata selection process to be used by the Exchange Agent shall consist
of such equitable pro ration processes as shall be reasonably and mutually determined
by Parent and the Company.
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Additional Information
In connection with the Merger, Mariner and Apache will file a definitive proxy
statement/prospectus and other documents with the Securities and Exchange Commission. INVESTORS AND
SECURITY HOLDERS ARE URGED TO CAREFULLY READ THE DEFINITIVE PROXY STATEMENT/PROSPECTUS WHEN IT
BECOMES AVAILABLE BECAUSE IT WILL CONTAIN IMPORTANT INFORMATION REGARDING MARINER, APACHE, AND THE
MERGER.
A definitive proxy statement/prospectus will be sent to stockholders of Mariner seeking
their approval of the Merger. Investors and security holders may obtain a free copy of the
definitive proxy statement/prospectus (when available) and other documents filed by Mariner and
Apache with the SEC at the SECs website, www.sec.gov. Copies of the documents filed with the SEC
by Mariner will be available free of charge on Mariners website at www.mariner-energy.com under
the tab Investor Information or by contacting Mariners Investor Relations Department at
713-954-5558. Copies of the documents filed with the SEC by Apache will be available free of charge
on Apaches website at www.apachecorp.com under the tab Investors or by contacting Apaches
Investor Relations Department at 713-296-6000. You may also read and copy any reports, statements
and other information filed with the SEC at the SEC public reference room at 100 F Street N.E.,
Room 1580, Washington, D.C. 20549. Please call the SEC at (800) 732-0330 or visit the SECs website
for further information on its public reference room.
Participants in Solicitation
Mariner, its directors, executive officers and certain members of management and
employees may, under the rules of the SEC, be deemed to be participants in the solicitation of
proxies from stockholders of Mariner in connection with the Merger. Information concerning the
interests of the persons who may be participants in the solicitation will be set forth in the
definitive proxy statement/prospectus (when available). Information concerning beneficial ownership
of Mariner stock by its directors and certain executive officers is included in its proxy statement
dated March 29, 2010 and subsequent statements of changes in beneficial ownership on file with the
SEC.
Apache, its directors, executive officers and certain members of management and employees
may, under the rules of the SEC, be deemed to be participants in the solicitation of proxies from
stockholders of Mariner in
April 14, 2010
Page 8 of 9
connection with the Merger. Information concerning the interests of the persons who may be
participants in the solicitation will be set forth in the definitive proxy statement/prospectus
(when available). Information concerning beneficial ownership of Apache stock by its directors and
certain executive officers is included in its proxy statement dated March 31, 2010 and subsequent
statements of changes in beneficial ownership on file with the SEC.
Forward-Looking Statements
This summary contains forward-looking statements that involve significant risks and
uncertainties. All statements other than statements of historical fact are statements that could be
deemed forward-looking statements, including: statements regarding the anticipated timing of
filings and approvals relating to the Merger; statements regarding the expected timing of the
completion of the Merger; statements regarding the ability to complete the Merger considering the
various closing conditions; any statements of expectation or belief; and any statements of
assumptions underlying any of the foregoing. Investors and security holders are cautioned not to
place undue reliance on these forward-looking statements. Actual results could differ materially
from those currently anticipated due to a number of risks and uncertainties. Risks and
uncertainties that could cause results to differ from expectations include, among others: the
possibility that one or more closing conditions for the Merger may not be satisfied or waived,
including the failure to obtain the requisite approval of Mariners stockholders or the possibility
that a governmental entity may prohibit, delay or refuse to grant approval for the consummation of
the Merger; the effects of disruption from the Merger making it more difficult to maintain
relationships with employees, business partners or governmental entities; other business effects,
including the effects of industry, economic or political conditions outside of the control of
Mariner or Apache; and other risks and uncertainties discussed in documents filed with the SEC by
Mariner and Apache.
April 14, 2010
Page 9 of 9
Pending Acquisition of Mariner Energy, Inc. by Apache Corporation
SUMMARY OF EMPLOYEE RETENTION/SEVERANCE ARRANGEMENTS *
1.
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Closing
**:
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If you remain employed by Mariner until the closing date:
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Your unvested standard annual restricted stock awards fully vest.
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Your unvested deferred cash bonus awards (offshore personnel) fully vest.
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You receive a closing bonus of no less than your 2009 annual bonus paid in March 2010
(or if employed for less than full-year 2009 or hired in 2010, a bonus in an amount
determined by Mariner).
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You become an employee of Apache (or one of its subsidiaries) with credit for
Mariner service.
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2.
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Between Closing and December 1, 2010
:
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If you voluntarily terminate without good reason before you receive a permanent
employment offer from Apache, you receive basic severance.
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Basic severance means severance benefits under Mariners severance plan. Good
reason is a voluntary termination that is a qualifying event under the severance plan (as
recognized and approved by the Plan Administrator) or is described in your employment or
change of control agreement, as applicable.
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If you voluntarily terminate for good reason, you receive enhanced
severance.
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Enhanced severance is your annual base salary plus severance/separation benefits
under either Mariners severance plan or your employment or change of control agreement, as
applicable.
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If you voluntarily terminate for any reason after you receive a permanent
employment offer from Apache, you receive enhanced severance.
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If Apache terminates you without cause, you receive enhanced severance.
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Without cause is an involuntary termination that is a qualifying event under the
severance plan or is described in your employment or change of control agreement, as
applicable.
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|
|
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If Apache terminates you because you fail its background check or drug test, you
receive basic severance.
|
|
|
|
|
All waiver and release requirements continue to be a condition to receive severance.
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3.
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Between December 1, 2010 and December 31, 2010
:
|
|
|
|
If you voluntarily terminate for any reason, you receive enhanced severance.
|
|
|
|
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If Apache terminates you without cause, you receive enhanced severance.
|
|
|
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If you have an employment or change of control agreement with Mariner and accept
permanent employment with Apache, you must waive your rights under the agreement effective
December 31, 2010.
|
|
|
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All waiver and release requirements continue to be a condition to receive severance.
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April 14, 2010
Page 1 of 3
4.
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Between Closing and December 31 of the year in which Closing occurs
:
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|
|
|
Vacation continues to be earned and any unused vacation is carried over to the
next year or paid upon employment termination, as applicable, on terms no less favorable
than Mariners existing Vacation and Attendance Policy.
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5.
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Between January 1, 2011 and February 15, 2011
:
|
|
|
|
If you remain employed by Apache on February 15, 2011, you receive a retention
bonus of no less than the amount of your closing bonus paid on the closing date.
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*
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This summary is entirely qualified by reference to (i) the attached Schedule 5.9(c) to the
Agreement and Plan of Merger, by and among Apache Corporation, ZMZ Acquisitions LLC, and Mariner
Energy, Inc., dated April 14, 2010 (the Merger Agreement), (ii) the Merger Agreement, filed as
Exhibit 2.1 to Mariners Form 8-K filed on April 16, 2010 with the Securities and Exchange
Commission, (iii) Mariners Amended and Restated Employee Severance Plan, effective December 1,
2009, (iv) Mariners Vacation and Attendance Policy, effective January 1, 2007, and (v) your
employment agreement or change of control agreement with Mariner.
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**
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|
This summary assumes closing occurs before October 1, 2010. If closing occurs later, references
to December 1 and 31, 2010 mean 60 and 90 days, respectively, after the closing date.
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Additional Information
In connection with the Merger, Mariner and Apache will file a definitive proxy
statement/prospectus and other documents with the Securities and Exchange Commission. INVESTORS AND
SECURITY HOLDERS ARE URGED TO CAREFULLY READ THE DEFINITIVE PROXY STATEMENT/PROSPECTUS WHEN IT
BECOMES AVAILABLE BECAUSE IT WILL CONTAIN IMPORTANT INFORMATION REGARDING MARINER, APACHE, AND THE
MERGER.
A definitive proxy statement/prospectus will be sent to stockholders of Mariner seeking
their approval of the Merger. Investors and security holders may obtain a free copy of the
definitive proxy statement/prospectus (when available) and other documents filed by Mariner and
Apache with the SEC at the SECs website, www.sec.gov. Copies of the documents filed with the SEC
by Mariner will be available free of charge on Mariners website at www.mariner-energy.com under
the tab Investor Information or by contacting Mariners Investor Relations Department at
713-954-5558. Copies of the documents filed with the SEC by Apache will be available free of charge
on Apaches website at www.apachecorp.com under the tab Investors or by contacting Apaches
Investor Relations Department at 713-296-6000. You may also read and copy any reports, statements
and other information filed with the SEC at the SEC public reference room at 100 F Street N.E.,
Room 1580, Washington, D.C. 20549. Please call the SEC at (800) 732-0330 or visit the SECs website
for further information on its public reference room.
Participants in Solicitation
Mariner, its directors, executive officers and certain members of management and
employees may, under the rules of the SEC, be deemed to be participants in the solicitation of
proxies from stockholders of Mariner in connection with the Merger. Information concerning the
interests of the persons who may be participants in the solicitation will be set forth in the
definitive proxy statement/prospectus (when available). Information concerning beneficial ownership
of Mariner stock by its directors and certain executive officers is included in its proxy statement
dated March 29, 2010 and subsequent statements of changes in beneficial ownership on file with the
SEC.
Apache, its directors, executive officers and certain members of management and employees
may, under the rules of the SEC, be deemed to be participants in the solicitation of proxies from
stockholders of Mariner in connection with the Merger. Information concerning the interests of the
persons who may be participants in the solicitation will be set forth in the definitive proxy
statement/prospectus (when available). Information concerning beneficial ownership of Apache stock
by its
April 14, 2010
Page 2 of 3
directors and certain executive officers is included in its proxy statement dated March 31, 2010
and subsequent statements of changes in beneficial ownership on file with the SEC.
Forward-Looking Statements
This summary contains forward-looking statements that involve significant risks and
uncertainties. All statements other than statements of historical fact are statements that could be
deemed forward-looking statements, including: statements regarding the anticipated timing of
filings and approvals relating to the Merger; statements regarding the expected timing of the
completion of the Merger; statements regarding the ability to complete the Merger considering the
various closing conditions; any statements of expectation or belief; and any statements of
assumptions underlying any of the foregoing. Investors and security holders are cautioned not to
place undue reliance on these forward-looking statements. Actual results could differ materially
from those currently anticipated due to a number of risks and uncertainties. Risks and
uncertainties that could cause results to differ from expectations include, among others: the
possibility that one or more closing conditions for the Merger may not be satisfied or waived,
including the failure to obtain the requisite approval of Mariners stockholders or the possibility
that a governmental entity may prohibit, delay or refuse to grant approval for the consummation of
the Merger; the effects of disruption from the Merger making it more difficult to maintain
relationships with employees, business partners or governmental entities; other business effects,
including the effects of industry, economic or political conditions outside of the control of
Mariner or Apache; and other risks and uncertainties discussed in documents filed with the SEC by
Mariner and Apache.
April 14, 2010
Page 3 of 3
Section 5.9(c) of the Company Schedule
The Parent [Apache], Merger Sub and Company [Mariner] agree to implement the following
employment arrangements.
1. Employment; Service.
At Closing, all Company employees will become employees of Apache (or one of its Subsidiaries) and
receive credit for all periods of service with the Company (and with predecessor employers with
respect to which the Company and its Subsidiaries shall have granted service credit) for all
purposes.
2. Retention.
(a) An employee who remains employed until the Closing Date shall be paid a cash closing bonus
within 10 days after the Closing Date of not less than 100% of his or her 2009 bonus (as paid in
2010). For purposes of determining the minimum closing bonus for an employee who did not have a
full year of service in 2009, the amount of the closing bonus will be determined by the Company in
its discretion.
(b) An employee who remains employed on February 15, 2011 shall be paid a cash retention bonus of
not less than 100% of his or her 2009 bonus (as paid in 2010) on February 15, 2011. The amount of
the minimum cash retention bonus paid on February 15, 2011 will equal the amount of the closing
bonus.
3. Severance.
(a) An employee who (i) is covered by a change of control agreement or employment agreement and
(ii) accepts a formal written offer of permanent employment with Apache that includes a work
assignment, compensation and benefits package will be required to waive his or her rights under
such agreement effective December 31, 2010.
(b) If, during the period beginning on the Closing Date and ending on December 1, 2010, an
employee voluntarily terminates his or her employment for a reason that is not a Qualifying
Termination (as defined below) or if an employee is terminated due to failure to satisfy Apaches
background check and drug testing requirements, and if in either case such employee is not entitled
to benefits pursuant to paragraph (e) below, he or she will be entitled to a lump sum payment of an
amount equal to severance under the Amended and Restated Mariner Energy, Inc. Employee Severance
Plan, effective as of December 1, 2009 (the Mariner Severance Plan), payable as if subject to the
terms of the Mariner Severance Plan.
(c) If, during the period beginning on the Closing Date and ending on December 31, 2010, the
employment of an employee terminates as a result of a Qualifying Termination (as defined below), he
or she will be entitled to a lump sum payment of an amount equal to his or her annual base salary
plus severance under the Mariner Severance Plan, payable as if subject to the terms of the Mariner
Severance Plan.
(d) Notwithstanding the foregoing Section 3(c), if during the period beginning on the Closing Date
and ending on December 31, 2010, an employee who has an employment agreement or a change of control
agreement with the Company terminates as a result of a Qualifying Termination, he or she will be
entitled to (1) a lump sum payment of an amount equal to (i) his or her annual base salary, plus
(ii) the severance payment payable under the Applicable Agreement, and (2) the welfare benefit
continuation coverage provided under the terms of the Applicable Agreement. The Applicable
Agreement means the applicable employment or change of control agreement covering the employee.
(e) If an employee (1) does not receive an offer of employment from Apache by December 1, 2010 or
(2) receives an offer of employment from Apache and such employee terminates for any reason by
December 31, 2010, then he or she will be entitled to a lump sum payment of an amount equal to his
or her annual base salary, and either (i) severance under the Mariner Severance Plan, payable as if
subject to the terms of the Mariner Severance Plan, or (ii) severance under any Applicable
Agreement, plus the welfare benefit continuation coverage provided under the terms of the
Applicable Agreement.
(f) A Qualifying Termination shall mean (i) if an employee is subject to an employment agreement
or a change in control agreement, a termination of employment that would entitle the employee to
separation benefits under that document, or (ii) if the employee is not subject to such an
agreement, a Qualifying Event as defined under the Mariner Severance Plan.
(g) In the event the Closing Date has not occurred prior to October 1, 2010, all references in this
Section 3 to December 1, 2010 shall mean 60 days after the Closing Date, and all references to
December 31, 2010 shall mean 90 days after the Closing Date.
(h) In no event shall an employee be entitled to receive payment under more than one Section of
Sections 3(b), 3(c), 3(d) or 3(e) above.
(i) All of the Companys existing waiver and release requirements to receipt of severance shall
continue to be a condition to receive severance.
4. Vacation.
From and after the Closing Date through December 31 of the calendar year in which the Closing Date
occurs, employees shall continue to earn vacation at a rate no less favorable than under the
Companys vacation policy in effect on the date of this Agreement (Vacation Policy) and be
entitled to use any unused vacation in the subsequent calendar year on a basis no less favorable
than under such Vacation Policy, and shall be entitled to receive payment for any unused vacation
upon termination of employment in accordance with the Vacation Policy.
Most Frequently Asked Questions
:
1)
|
|
Do I need to submit a resume and who should I send it to?
|
|
|
|
If we had a resume on file for you, a copy was included in this packet for your convenience.
If you would like to submit an updated resume, please send it directly to Katie Miller
(
kmiller@mariner-energy.com
) within the next several weeks. If there is not a
resume included in your packet, then we dont have one on file for you. Although it is not
required, it would be beneficial to submit a resume or bio to help facilitate discussions
regarding organizational structure.
|
|
2)
|
|
Does Mariner plan to make the profit sharing contribution for the plan year 2009?
|
|
|
|
Yes, assuming Mariner receives approval from the Board, profit sharing contributions will be
made for the plan year 2009 at some point prior to closing.
|
|
3)
|
|
Does Apache reimburse for toll road expenses for travel to and from work?
|
|
|
|
Currently Apache does not reimburse for toll road expenses. However, this is being reviewed
by Apache, and you will be updated if any changes are made in regards to their policy.
|
|
4)
|
|
What does self-insured mean in regards to health plans?
|
|
|
|
An employer has a self-insured plan if the employer assumes the financial risk for providing
health care benefits to its employees. Rather than paying a fixed premium to an insurance
company who in turn assumes the financial risk, the employer pays for medical claims
out-of-pocket as they are incurred. Whether a health plan is self-insured or fully-insured
is, in most cases, a transparent point to employees. It affects the employer and how the
plan is administered.
|
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