SEPARATION AGREEMENT AND RELEASE
Exhibit 10.1
THIS AGREEMENT AND RELEASE is by and between Xxxxxxx Xxxx (“Xx. Xxxx”), a resident of Spring,
Texas, and Mitcham Industries, Inc. (“Mitcham”), a Texas corporation, having its principal place of
business in Huntsville, Texas.
WITNESSETH:
Xx. Xxxx is presently Executive Vice President-Finance and Chief Financial Officer (“CFO”) for
Mitcham;
Xx. Xxxx is resigning his employment with Mitcham and all Mitcham subsidiaries effective June
23, 2006;
Xx. Xxxx and Xxxxxxx desire to define their respective rights and obligations for the future
and avoid the expense, delay and uncertainty attendant to disputes, if any, which may arise from
Xx. Xxxx’x employment or resignation of employment;
Now, therefore, for and in consideration of the mutual covenants and promises hereinafter set
forth, and for other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Xx. Xxxx and Xxxxxxx agree:
1. Resignation. Xx. Xxxx has resigned his employment and appointment as an officer
with Mitcham and its subsidiaries effective June 23, 2006 and Mitcham has accepted his
resignation. Xx. Xxxx agrees and acknowledges that after June 23, 2006 he has no authority to and
will not act as an employee or officer of Mitcham or its subsidiaries.
2. Salary and Benefits. In lieu of notice, Mitcham shall pay Xx. Xxxx’x salary and
provide medical benefits according to the terms and conditions of its medical benefit plans until
June 30, 2006. Payments under this paragraph shall be made in accord with Mitcham’s regular
payroll practice with customary withholding for taxes and applicable deductions. Xx. Xxxx
acknowledges that such payments are in full satisfaction of all wages, benefits, and the
compensation owed by Mitcham to Xx. Xxxx for employment or service with Mitcham or its
subsidiaries.
3. Separation Benefits. Mitcham thereafter agrees to continue to pay Xx. Xxxx an
amount equal to his current base salary ($13,333.32 per month) for a period of three months in
accord with Mitcham’s regular practice and with customary withholding for taxes and applicable
deductions. During the period of salary continuation, and provided Xx. Xxxx elects continuation
coverage, Xx. Xxxx shall continue to participate in Mitcham’s medical plan on the same terms as
applicable to such participation for active employees. Mitcham reserves the right to amend,
change or terminate the medical plan at its discretion. In the event of Xx. Xxxx’x material
breach of this Agreement, Xx. Xxxx shall repay all amounts paid by Mitcham within ten (10) days
upon receiving a written demand from Mitcham.
4. Stock Options. Mitcham agrees to accelerate vesting of all options granted March
31, 2006 (which the parties agree are options for 5,000 shares) to vest fully such options as of
the effective date of his resignation. Xxxx’x vested stock options, including the options vested
as of the effective date of resignation and which the parties agree are options for 25,000 shares,
shall be exercised in accordance with the terms and conditions of the (i) Amended and Restated
1998 Stock Awards Plan of Mitcham Industries, Inc., (ii) Mitcham Industries, Inc. Incentive Stock
Option Agreement (1998) Stock Awards Plan), (iii) Mitcham Industries, Inc. 2000 Stock Option Plan,
and (iv) Mitcham Industries, Inc. Incentive Stock Option Agreement, as applicable to such vested
options, based on his date of termination, June 23, 2006; provided, however, with respect to the
stock options grant for 5,000 shares granted March 31, 2006 for which vesting has been accelerated
according to this section, Mitcham shall cause the applicable plan and agreement to be amended to
provide that Xx. Xxxx shall have until December 31, 2006 to exercise these options for 5,000
shares. Such amendment shall not change the exercise date as to Xx. Xxxx’x stock options for
20,000 shares granted December 8, 2004. Xx. Xxxx shall have no further rights to any Award as
such term is defined in such Plans and Agreements.
5. Restricted Stock. Mitcham agrees as to all Restricted Stock subject to Forfeiture
Restrictions as of June 23, 2006 (which the parties agree are 500 Restricted Shares), that such
restrictions shall expire as of the date of resignation.
6. Prior Rights and Obligations. This Agreement and Release otherwise extinguishes
all rights, if any, which Xx. Xxxx may have, and obligations, if any, which Mitcham may have,
contractual or otherwise, relating to the employment or termination of employment of Xx. Xxxx with
Xxxxxxx.
7. Mitcham Assets. Xx. Xxxx hereby represents and warrants that he has no claim or
right, title or interest in any property owned by Mitcham including without limitation the
property designated on Mitcham’s books as the property or assets of Mitcham and that he will
deliver to Mitcham on or before the effective date of his termination to Mitcham all Mitcham
property including without limitation Company credit cards and computer and electronic devices
which were in his possession, custody or control.
8. Proprietary and Confidential Information. In accordance with Xx. Xxxx’x existing
and continuing obligations, Xx. Xxxx agrees and acknowledges that the various Mitcham Entities
have developed and own valuable “Proprietary and Confidential Information” which constitutes
valuable and unique property including, without limitation, concepts, ideas, plans, strategies,
analyses, surveys, research and development materials, and proprietary information related to the
past, present or anticipated business of the various Mitcham Parties. Except as required by law,
Xx. Xxxx agrees that he will not at any time disclose to others, permit to be disclosed, use,
permit to be used, copy or permit to be copied, any such Proprietary and Confidential Information
(whether or not developed by Xx. Xxxx or developed by others under his direction or while employed
with or assisting Mitcham) without Mitcham’s prior written consent. Xx. Xxxx further agrees to
maintain in confidence any Proprietary and Confidential Information of third parties received or
of which he has knowledge as a result of his employment. Xx. Xxxx agrees that in the event of an
actual breach by Xx. Xxxx of the provisions of this paragraph, Mitcham shall be entitled to inform
all potential or new
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employers of this Agreement and that such breach shall cause Mitcham immediate and
irreparable harm for which damages will not be adequate.
9. Documents. Xx. Xxxx represents, warrants, and agrees that he will leave in his
office or has delivered to Mitcham all analysis, computer files, correspondence, data or
information, memoranda, models, notes, research in any form, records, or other documents,
including charts and drawings, and all copies thereof, made, composed or received by Xx. Xxxx,
solely or jointly with others, and which are or were in Xx. Xxxx’x possession, custody or control
and which are related in any manner to the past, present or anticipated business of Mitcham upon
termination of his employment. In this regard, Xx. Xxxx hereby grants and conveys to Mitcham all
right, title and interest in and to, including without limitation, the right to possess, print,
copy, and sell or otherwise dispose of, any data, drawings, information, papers, photographs,
records, reports, summaries, or other documents in writing, and copies, abstracts or summaries
thereof, which may have been prepared by Xx. Xxxx or under his direction or which may have come
into his possession in any way during the term of his employment with Mitcham which relate in any
manner to past, present or anticipated business of Mitcham.
10. Cooperation. Xx. Xxxx shall cooperate with and assist Mitcham to the extent
required by Mitcham in all matters, including without limitation, matters relating to his
employment or the winding up of his pending work and the orderly transfer of any pending work as
designated by Mitcham. This obligation shall include, without limitation, assisting Mitcham and
its counsel in preparing and defending against any claims which have been or may be brought
against any Mitcham entity or responding to any inquiry by any person or governmental agency.
Mitcham’s requests for Xx. Xxxx’x cooperation shall be commercially reasonable and Xx. Xxxx agrees
that he shall be commercially reasonable in providing such cooperation, taking into account the
needs of Mitcham and the position he may have with another employer at the time such cooperation
is required. Xx. Xxxx shall take such further action and execute documents as may be reasonably
necessary or appropriate in order to carry out the provisions and purposes of this Agreement
11. No Solicitation. Xx. Xxxx agrees for a period of one year from the effective
date of this Agreement not to encourage, induce or solicit, directly or indirectly, or in concert
with others, any Mitcham employee to terminate their relationship with Mitcham.
12. Expenses. Xx. Xxxx agrees that he has submitted or will submit within five days
all actual, reasonable and customary expenses incurred by him in the course of his employment,
which Mitcham shall reimburse in accordance with Mitcham’s expense reimbursement policy.
13. Xx. Xxxx’x Representation. Xx. Xxxx represents, warrants and agrees that he has
not filed any claims, appeals, complaints, charges or lawsuits against Mitcham, its subsidiary
companies or their respective owners, directors, officers, employees, agents and representatives
(such entities and individuals being collectively, including Mitcham, the “Mitcham Parties”) with
any governmental agency or court and that he will not file or accept benefit from any claim,
complaint or petition filed with any court by him or on his behalf at any time hereafter as to
those claims released herein; provided, however, this shall not limit Xx. Xxxx from filing
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an action for the sole purpose of enforcing his rights under this Agreement. Further, Xx.
Xxxx represents and warrants that to his knowledge (i) no other person or entity has any interest
or assignment in claims or causes of action, if any, he may have against any Mitcham Party and
which he now releases in their entirety; (ii) there has been no act, event, or omission by any
Mitcham Party which is unlawful or violates any governmental rule or regulation or any rule or
regulation of any stock exchange (including the NASDAQ stock market), (iii) he has not committed,
during his employment with Mitcham or any Mitcham subsidiary, any act which is unlawful or which
violates any governmental rule or regulation or any rule or regulation of any stock exchange
(including the NASDAQ stock market), (iv) he has not been requested by or requested any Mitcham
Party to commit any unlawful act or violate any governmental rule or regulation or any rule or
regulation of any stock exchange (including the NASDAQ stock market), and (v) neither he nor any
other person employed by or contracting with any Mitcham Party has been subjected to any adverse
action because any such person refused to commit any unlawful act or violate any governmental rule
or regulation or any rule or regulation of any stock exchange (including the NASDAQ stock market).
14. Release. Xx. Xxxx agrees to release, acquit and discharge and does hereby
release, acquit and discharge Mitcham and all other Mitcham Parties, collectively and
individually, from any and all claims and from any and all causes of action against any of the
Mitcham Parties, of any kind or character, whether now known or not known, he may have against any
such Mitcham Party, in their corporate, individual and representative capacities, including, but
not limited to, any claim for benefits, bonuses, compensation, costs, damages, expenses,
remuneration, salary, or wages; and further including but not limited to all claims or causes of
action arising from his employment, termination of employment, or any alleged unlawful employment
practices, including claims under the Age Discrimination in Employment Act or Texas Commission on
Human Rights Act, and any and all claims or causes of action arising under any other federal,
state or local laws; except that the parties agree that Xx. Xxxx’x release, acquittal and
discharge shall not relieve Mitcham from its obligations under this Agreement. This release also
applies to any claims brought by any person or agency or class action under which Xx. Xxxx may
have a right or benefit.
15. ADEA Rights. Xx. Xxxx acknowledges and agrees:
(a) that he has had at least twenty-one (21) days to consider this Agreement
and Release before accepting;
(b) that he has been advised in writing to consult with an attorney regarding
the terms of this Agreement and Release before accepting;
(c) that, if he accepts this Agreement and Release, that he has seven days
following the execution of this Agreement and Release to revoke this Agreement and
Release.
(d) that this Agreement and Release shall not become effective or enforceable
until the revocation period has expired;
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(e) that he is receiving, pursuant to this Agreement and Release, consideration
in addition to anything of value to which he is already entitled; and
(f) that he does not waive any claims or rights that may arise after the date
he executes this Agreement and Release.
16. No Derogatory Comments. Xx. Xxxx acknowledges and agrees that he has no
knowledge of any act or omission by any Mitcham Party which would credibly give rise to any
derogatory comment and, therefore, agrees to refrain from making public or private comments
relating to any Mitcham Party, corporate or individual, which are derogatory or which may tend to
injure any such party in its or their business, public or private affairs.
17. No Admissions. The parties expressly understand and agree that the terms of this
Agreement and Release are contractual and not merely recitals and that the agreements herein and
consideration paid are to compromise doubtful and disputed claims, avoid litigation, and buy
peace, and that no statement or consideration given shall be construed as an admission of any
claim by either party, such admissions being expressly denied.
18. Enforcement of Agreement and Release. No waiver or non-action with respect to
any breach by the other party of any provision of this Agreement and Release, nor the waiver or
non-action with respect to any breach of the provisions of similar agreements with other employees
shall be construed to be a waiver of any succeeding breach of such provision, or as a waiver of
the provision itself. Should any provision of this Agreement and Release be held to be invalid or
wholly or partially unenforceable, such holdings shall not invalidate or void the remainder of
this Agreement and Release, and those portions held to be invalid or unenforceable shall be
revised and reduced in scope so as to be valid and enforceable, or, if such is not possible, then
such portion shall be deemed to have been wholly excluded with the same force and effect as if
they had never been included herein.
19. Choice of Law. This Agreement shall be governed by and construed and enforced,
in all respects, in accordance with the law of the State of Texas without regard to conflict of
law principles unless preempted by federal law, in which case federal law shall govern.
20. Merger. This Agreement and Release supersedes, replaces and merges all previous
agreements and discussions relating to the same or similar subject matters between Xx. Xxxx and
Xxxxxxx and constitutes the entire agreement between Xx. Xxxx and Mitcham with respect to the
subject matter of this Agreement. This Agreement may not be changed or terminated orally, and no
change, termination or waiver of this Agreement or any of the provisions herein contained shall be
binding unless made in writing and signed by all parties, and in the case of Mitcham, by an
authorized executive officer.
21. Confidentiality. Xx. Xxxx agrees that he has not disclosed and will not disclose
the terms of this Agreement or the consideration received from Mitcham to any other person, except
his attorney or financial advisors and only on the condition that they keep such information
strictly confidential; provided, however, that the foregoing obligation of
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confidence shall not apply to information that is required to be disclosed as a result of any
applicable law, rule or regulation of any governmental authority or any court.
22. Agreement and Release Voluntary. Xx. Xxxx acknowledges and agrees that he has
carefully read this Agreement and understands that, except as expressly reserved herein, it is a
release of all claims, known and unknown, past or present. He further agrees that he has entered
into this Agreement for the above stated consideration. He warrants that he is fully competent to
execute this Agreement and Release which he understands to be contractual. He further
acknowledges that he executes this Agreement and Release of his own free will, after having a
reasonable period of time to review, study and deliberate regarding its meaning and effect, and
after being advised to consult an attorney, and without reliance on any representation of any kind
or character not expressly set forth herein. Finally, he executes this Agreement fully knowing
its effect and voluntarily for the consideration stated above.
23. Headings. The section headings contained herein are for the purpose of
convenience only and are not intended to define or limit the contents of such sections.
24. Notices. Any notices required or permitted to be given under this Agreement and
Release shall be properly made if delivered in the case of Mitcham to:
Mitcham Industries, Inc.
0000 XX Xxx. 00 X.
P. O. Xxx 0000
Xxxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx, Xx.
0000 XX Xxx. 00 X.
P. O. Xxx 0000
Xxxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx, Xx.
and in the case of Xx. Xxxx to:
0000 Xxxxxxx Xxxxx Xxxxx
Xxxxxx, XX 00000
Xxxxxx, XX 00000
IN WITNESS WHEREOF, the parties have caused this Agreement and Release to be executed in
multiple counterparts, each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument, at Huntsville, Texas, to be effective on execution by the
parties.
August 22, 2006
|
/s/ Xxxxxxx Xxxx | |
Date
|
XXXXXXX XXXX | |
MITCHAM INDUSTRIES, INC. | ||
August 23, 2006
|
By /s/ Xxxxx X. Xxxxxxx, Xx. | |
Date |
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