EX-10.1






AMENDED AND RESTATED EMPLOYMENT AGREEMENT




This Amended and Restated Employment Agreement (“Agreement”) is made and entered into
by and between Mitcham Industries, Inc., a Texas corporation (the “Company”), and Billy F.
Mitcham, Jr. (“Executive”), effective as of September 8, 2015 (the “Effective
Date”).



W I T N E S S E T H:




WHEREAS, Executive and the Company previously entered into that certain Employment Agreement,
dated as of January 15, 1997 (the “Prior Agreement”);



WHEREAS, the Board of Directors of the Company (the “Board”) recognizes that the
Company participates in a changing and challenging market segment;



WHEREAS, the parties desire to enter into this Agreement to provide incentives to Executive to
ensure the development and implementation of a new strategic plan for the future of the Company
including the identification of, appointment of and transition to a new President and Chief
Executive Officer of the Company; and



WHEREAS, this Agreement supersedes and replaces the Prior Agreement in its entirety.



NOW, THEREFORE, in consideration of the foregoing and of the respective covenants and
agreements set forth below, the parties hereto agree as follows:



1. Employment. During the Employment Period (as defined in Section 4), the
Company shall employ Executive, and Executive shall serve, as President and Chief Executive Officer
of the Company (“CEO”) and in such other similar position or positions as may be reasonably
assigned by the Board from time to time, including positions with respect to any direct or indirect
subsidiary of the Company. In the event a new CEO is appointed during the Employment Period,
Executive shall remain employed pursuant to this Agreement as CEO Emeritus and Founder. During the
Employment Period the Company will take all reasonable actions as customary to provide for the
nomination of Executive as a member of the Board.



2. Duties and Responsibilities of Executive.



(a) During the Employment Period, excluding any periods of Disability as defined in this
Agreement, vacation and sick leave to which Executive is entitled, Executive shall devote
Executive’s full business time, attention and reasonable commercial efforts to the business of the
Company and, as applicable, its direct or indirect subsidiaries (the Company and its direct or
indirect subsidiaries are collectively referred to herein as the “Company Group”), as may
be requested by the Board from time to time. In Executive’s capacity as President and CEO,
Executive shall have the duties, responsibilities and authorities customarily associated with the
positions of President and CEO in a company the size and nature of the Company. Should Executive
become CEO Emeritus and Founder, he will have such authorities and responsibilities as the Board
may reasonably assign and which are customarily associated with executive level duties. The
Company acknowledges that Executive may, from time to time, perform his duties under this Agreement
from his residence or other location away from the Company’s offices provided such alternate
location does not materially impede the performance of Executive’s duties and responsibilities
under this Agreement. Executive may, without violating this Agreement, (i) as a passive investment,
own securities in such form or manner as will not require any significant services by Executive in
the operation of the entities in which such securities are owned; (ii) engage in charitable and
civic activities (including service on civic or charitable boards or committees); (iii) deliver
lectures, fulfill speaking engagements or teach at educational institutions; or (iv) with the prior
written consent of the Board, engage in other personal activities and passive investment
activities, in each case, so long as such interests or activities do not interfere with Executive’s
ability to fulfill Executive’s duties and responsibilities under this Agreement and are not
inconsistent with Executive’s obligations to the Company Group or competitive with the business of
the Company Group.



(b) The obligations described in this Agreement are in addition to, and not in lieu of, the
fiduciary duties, including duties of loyalty and disclosure, Executive owes each member of the
Company Group under statutory and common law.



3. Compensation.



(a) Base Salary. During the Employment Period, the Company shall pay to Executive an
annualized base salary of $481,525 (the “Base Salary”) in consideration for Executive’s
services under this Agreement, payable in substantially equal installments in conformity with the
Company’s customary payroll practices for similarly situated employees as may exist from time to
time, but no less frequently than monthly. The parties acknowledge that the amount of the Base
Salary as just stated is based on a reduction of 15% applied to the salary of Executive and other
senior executives of the Company prior to the Effective Date. The parties agree that if at any
time during the Employment Period, the Company reinstates all or any part of that salary reduction
for any of the other senior executives of the Company (other than in connection with merit-based
increases for such other senior executives), the reinstatement shall be applied to increase the
Base Salary in the same manner the reinstatement is applied to such other senior executive(s). The
Base Salary shall not be decreased, other than with Executive’s prior written consent, and
subsequent increases and the term “Base Salary,” as utilized in this Agreement shall refer to Base
Salary as so increased. Notwithstanding anything in this Agreement to the contrary, amounts paid
to Executive under the Company’s short-term disability or sick leave plan or policy shall reduce
dollar for dollar the amount of Base Salary otherwise payable to Executive.



(b) Annual Bonus. In addition to Annual Base Salary, Executive may be awarded, for
each fiscal year or portion thereof during the Employment Period, an Annual Bonus (the “Annual
Bonus”). The Annual Bonus will be subject to a combination of financial, operational and
individual performance goals to be established by the Compensation Committee of the Board. The
Annual Bonus payable (upon achievement of the performance metrics) will be targeted at 100% of Base
Salary (the “Target Annual Bonus”), up to a maximum of 200% of Base Salary. Achievement of
threshold performance will result in an Annual Bonus equal to 50% of Base Salary. Achievement
below threshold performance will result in no Annual Bonus. The Annual Bonus shall be paid in
accordance with normal Company policy for annual bonus payments to its senior executives that
results in payment during the fiscal year following the fiscal year of the performance period but
no later than 180 days following the end of the fiscal year of the performance period.



(c) Equity Awards. In consideration for Executive entering into this Agreement, (i) as
soon as administratively practicable on or following the Effective Date, but no later than 60 days
following the Effective Date, the Board and the Company shall grant Executive an option to purchase
65,000 shares of the Company’s common stock, par value $.01 per share, (“Common Stock”)
with a per share exercise price equal to the greater of $5.00 or the fair market value of the
Common Stock (as determined pursuant to the Mitcham Industries, Inc. Amended and Restated Stock
Awards Plan (the “Stock Awards Plan”)) on the date of grant of such option (the “Year
One Option”), and (ii) on May 2, 2016, and subject to Executive’s continued employment with the
Company through such date (except as provided in Section 7(f)(ii)(D)), the Board and the
Company shall grant Executive an additional option to purchase 100,000 shares of the Company’s
Common Stock with a per share exercise price equal to the greater of $5.00 or the fair market value
of the Common Stock (as determined pursuant to the Stock Awards Plan) on the date of grant
of such option (the “Year Two Option”). Subject to Executive’s continued employment with
the Company (except as otherwise provided in Section 7(f)(ii)(C)), the Year One Option will
become exercisable in substantially equal installments on the first, second and third anniversaries
of the Effective Date. Subject to Executive’s continued employment with the Company (except as
otherwise provided in Section 7(f)(ii)(C)), the Year Two Option will become exercisable in
substantially equal installments on May 2, 2017, May 2, 2018, and the last business day preceding
the third anniversary of the Effective Date. The options will be granted pursuant to and will be
subject to the terms and conditions of the Stock Awards Plan and the agreements evidencing such
awards. In addition, during the Employment Period Executive will be eligible to receive such
equity awards as may be determined and awarded in the discretion of the Compensation Committee of
the Board.



(d) Termination Payment. On the first regular pay date following the end of the Term
but not later than 30 days following the last day of the Term, unless earlier paid pursuant to
Section 7, Executive will receive a single lump sum payment, less applicable withholding,
equal to $350,000 (the “Termination Payment”). For purposes of clarity, Executive will be
entitled to receive the Termination Payment either pursuant to this Section 3(d) or
pursuant to Section 7 but not both. The Termination Payment may be paid in cash or shares
of Common Stock issued in a transaction registered under the Securities Act of 1933, as amended, as
elected by the Compensation Committee of the Board and subject to applicable law and the rules of
the Nasdaq Stock Market. The number of such shares will be determined by dividing the Termination
Payment by the closing price of the Common Stock on the last trading day preceding the date the
Company takes all actions necessary and appropriate to issue the shares of Common Stock.



4. Term of Employment. The term of this Agreement shall be for the period beginning
on the Effective Date and ending on the third (3rd) anniversary of the Effective Date
(the “Term”). Notwithstanding any other provision of this Agreement, Executive’s
employment pursuant to this Agreement may be terminated at any time in accordance with Section
7. The period from the Effective Date through the last day of the Term or, if sooner, the
termination of Executive’s employment pursuant to this Agreement, regardless of the time or reason
for such termination, shall be referred to herein as the “Employment Period.”



5. Business Expenses. Subject to Section 24, the Company shall reimburse
Executive for Executive’s reasonable out-of-pocket business-related expenses actually incurred in
the performance of Executive’s duties under this Agreement so long as Executive timely submits all
documentation for such reimbursement, as required by Company policy in effect from time to time.
Any such reimbursement of expenses shall be made by the Company upon or as soon as practicable
following receipt of such documentation (but in any event not later than the close of Executive’s
taxable year following the taxable year in which the expense is incurred by Executive). In no
event shall any reimbursement be made to Executive for such expenses incurred after the date of
Executive’s termination of employment with the Company. Executive is not permitted to receive a
payment in lieu of reimbursement under this Section 5.



6. Benefits.



(a) Benefit Plans. During the Employment Period, Executive shall be eligible to
participate in the same benefit plans and programs in which other similarly situated Company
employees are eligible to participate, subject to the terms and conditions of the applicable plans
and programs in effect from time to time, including but not limited to health and welfare benefits,
life and accidental death and dismemberment insurance and the Company’s 401(k). The Company shall
not, however, by reason of this Section 6(a), be obligated to institute, maintain, or
refrain from changing, amending, or discontinuing, any such plan or policy, so long as such changes
are similarly applicable to similarly situated Company employees generally. The Company currently
maintains a Protected Term Life Insurance Policy providing for an amount of coverage equal to
approximately $138,000 (the “Term Policy”). During the Employment Period, the Company will
continue to pay the annual premiums under the Term Policy.



(b) Vacation. During the Employment Period, Executive shall be entitled to accrue
vacation in accordance with the Company’s vacation policies (which accrual will be no less than six
weeks’ vacation per annum (prorated for partial years)), which shall be taken pursuant to the
Company’s vacation policies, as in effect from time to time. Executive acknowledges and agrees that
any unused vacation will be forfeited at the end of each calendar year; provided, however, to the
extent the Company adopts a vacation policy applicable to employees generally following the
Effective Date, Executive will be subject to that vacation policy instead of the vacation policy
described in this sentence.



(c) Office and Support Staff. During the Employment Period, Executive shall be
entitled to an office or offices of a size and with furnishings and other appointments, and to
secretarial and other assistance to the extent needed to fulfill his corporate responsibilities.



7. Termination of Employment.



(a) Company’s Right to Terminate Executive’s Employment for Cause. The Company shall
have the right to terminate Executive’s employment hereunder at any time for “Cause.” For purposes
of this Agreement, “Cause” shall mean any of the following events other than due to
Disability or medical condition protected by law:




(i) Executive’s final conviction of a felony crime (after exhausting all appeals) that
enriched Executive at the expense of the Company;




(ii) a material breach by Executive of a material fiduciary duty owed to the Company
resulting in substantial financial harm to the Company;




(iii) or a material breach by Executive of any of the covenants made by him in
Sections 9 and 10 hereof; or




(iv) Executive’s willful failure or refusal to perform Executive’s obligations pursuant
to this Agreement or to follow any reasonable directive from the Board (as opposed to
unsatisfactory performance), as determined by the Board (sitting without Executive) and in
either case resulting in substantial financial harm to the Company; provided, however, that
if Executive’s actions or omissions as set forth in this Section 7(a)(iv) are of
such a nature that they may be cured, such actions or omissions must remain uncured 30 days
after the Company or the Board has provided Executive written notice providing the details
of such willful failure or refusal and requesting Executive to cure such actions or
omissions.



(b) Company’s Right to Terminate for Convenience. The Company shall have the right to
terminate Executive’s employment for convenience at any time and for any reason, or no reason at
all, upon advance written notice to Executive.



(c) Executive’s Right to Terminate for Good Reason. Executive shall have the right to
terminate Executive’s employment with the Company at any time for “Good Reason.” For purposes of
this Agreement, “Good Reason” shall mean:




(i) a material diminution in Executive’s Base Salary;




(ii) a material breach by the Company of any of its covenants or obligations under this
Agreement; provided, however, any reduction in Executive’s authority or duties or the
reassignment of any of Executive’s duties due to Executive’s incapacity during any medical
leave of Executive or pursuant to Executive’s transition from President and CEO to CEO
Emeritus and Founder will not constitute “Good Reason;” or




(iii) the relocation of the geographic location of Executive’s principal place of
employment by more than 35 miles from the location of Executive’s principal place of
employment as of the Effective Date.



Notwithstanding the foregoing provisions of this Section 7(c), any assertion by Executive
of a termination of employment for Good Reason shall not be effective unless all of the following
conditions are satisfied: (1) the condition described in the foregoing clauses of this Section
7(c) giving rise to Executive’s termination of employment must have arisen without Executive’s
consent; (2) Executive must provide written notice to the Company of such condition in accordance
with Section 21 within 60 days of the initial existence of the condition; (3) the condition
specified in such notice must remain uncorrected for 30 days after receipt of such notice by the
Company; and (4) the date of Executive’s termination of employment must occur within 90 days after
such notice is received by the Company.



(d) Death or Disability. Upon the death of Executive, Executive’s employment with
Company shall terminate. In addition, the Company may terminate Executive’s employment with the
Company upon Executive’s Disability. For purposes of this Agreement, a “Disability” shall
exist (i) if Executive participates at the time of determination in a long-term disability plan or
program maintained by the Company for its employees (“LTD Plan”), upon Executive becoming
eligible to receive long-term disability benefits under the LTD Plan, or (ii) Executive does not
participate in such a LTD Plan at the time of determination, if Executive is unable to perform the
essential functions of Executive’s position, with reasonable accommodation, due to an illness or
physical or mental impairment or other incapacity that continues, or can reasonably be expected to
continue, for a period in excess of 180 days, whether or not consecutive, during any 365-day
period. The determination of whether Executive has incurred a Disability under the foregoing
clause (ii) will be made in good faith by the Board and the period of 180 days will not include any
period preceding the Effective Date.



(e) Executive’s Right to Terminate for Convenience. Executive shall have the right to
terminate Executive’s employment with the Company for convenience at any time and for any other
reason, or no reason at all, upon 90 days’ advance written notice to the Company; provided,
however, that if Executive has provided notice to the Company of Executive’s termination of
Executive’s employment, the Company may determine, in its sole discretion, that such termination
shall be effective on any date prior to the effective date of termination provided in such notice
so long as at the time of such determination the Company pays to Executive in a single lump sum
within 15 days from the date of Executive’s termination an amount equal to the amount that
Executive would have been paid in Base Salary had he continued to be employed through the effective
date of termination provided in Executive’s advance written notice (and, if such earlier date is so
required, then it shall not change the basis for Executive’s termination of employment nor be
construed or interpreted as a termination of employment pursuant to Section 7(b)).



(f) Effect of Termination.




(i) If Executive’s employment hereunder terminates for any reason, Executive shall be
entitled to receive payment of: (A) Base Salary through the date of termination, (B)
Executive’s accrued and unused vacation through the date of termination as determined in
accordance with Company policy in effect at the time of termination, provided, however, that
notwithstanding such Company policy, the amount of vacation the Executive is entitled to
accrue will not be less than six weeks per annum and the amount of vacation accrued and
unused through the date of termination will not be more than six weeks or, if greater, the
amount accrued and unused to the benefit of the Executive pursuant to the written Company
vacation policy in effect at the time of termination, (C) subject to Sections 5 and
24, Executive’s unreimbursed business expenses incurred through the date of termination,
and (D) the Termination Payment (collectively, the “Accrued Obligations”). All such
amounts shall be paid as soon as practicable but not later than 15 days from the date of
Executive’s termination of employment.




(ii) If Executive’s employment hereunder is terminated prior to the expiration of the
Term, either (x) by the Company without Cause pursuant to Section 7(b), (y) by
Executive for Good Reason pursuant to Section 7(c) or (z) by the Company due to
Disability or due to the death of Executive pursuant to Section 7(d), then, in
addition to the Accrued Obligations, so long as Executive (or after Executive’s death,
Executive’s executor, personal representative or heirs): (I) executes on or before the
Release Expiration Date (as defined below), and does not revoke within the time provided by
the Company to do so, which time will not be less than seven days or greater than ten days,
a release of all claims substantially in the form attached hereto as Exhibit A,
subject to any changes required by applicable law (“Release”); and (II) abides by
Executive’s continuing obligations under any of Sections 9, 10, and
11 then Executive shall be entitled to receive the following:




(A) an amount, less applicable withholding and without interest, equal to the
Base Salary otherwise payable to Executive for the period beginning on Executive’s
termination of employment and ending on the last day of the Term, which shall be
paid in a single lump sum on or before the date that is 60 days after the date on
which Executive’s employment terminates (the “Termination Date”), plus an
amount equal to Executive’s Annual Bonus for the fiscal year in which Executive’s
termination of employment becomes effective that would have been payable based upon
the achievement of the performance objectives established for such year had
Executive continued in employment, prorated for the number of days Executive was
employed during such fiscal year and paid at the time annual bonus payments are made
to other senior executives of the Company (collectively, the “Severance
Payment”); and




(B) continued participation for the remainder of the Term in the Company’s
group health benefit plans (including but not limited to medical, dental and vision)
at the cost for employee and spousal coverage in effect for active employees during
the period of such coverage; provided, however, in the event a termination pursuant
to this Section 7(f)(ii) occurs during the Employment Period and following
the occurrence of a “Change of Control” (as such term is defined in the Stock Awards
Plan) the health plan continuation provided pursuant to this Section
7(f)(ii)(B) will continue through the fifth anniversary of the Effective Date,




(C) full and immediate vesting upon such termination for all restricted stock
and restricted stock units for Company stock held by Executive immediately prior to
such termination and all restrictions thereon shall lapse upon such termination, and
all stock options for Company stock held by Executive immediately prior to such
termination shall become immediately vested and exercisable and all such options
shall continue to be exercisable for the remainder of their original term as if
Executive’s employment had not terminated but not longer than 10 years after their
original grant date, and




(D) In the event Executive’s employment was terminated by the Company without
Cause pursuant to Section 7(b) or by Executive for Good Reason pursuant to
Section 7(c), in either case, prior to May 2, 2016, Executive will also be
granted, immediately prior to such termination, the Year Two Option, which option
will be fully vested and exercisable upon grant for a term of 10 years from the
grant date of such option.




(iii) If the Release is not executed on or before the Release Expiration Date or if
Executive executes the Release and then revokes it within the time provided by the Company
to do so, then Executive shall not be entitled to any portion of the Severance Payment. As
used herein, the “Release Expiration Date” is that date that is 21 days following
the date upon which the Company delivers the Release to Executive (which shall occur no
later than seven days after the Termination Date) or, in the event that such termination of
employment is “in connection with an exit incentive or other employment termination program”
(as such phrase is defined in the Age Discrimination in Employment Act of 1967, as amended),
the date that is 45 days following such delivery date.



8. Conflicts of Interest. Executive shall promptly disclose to the Board any actual
or potential conflict of interest involving Executive upon Executive becoming aware of such
conflict or potential conflict. For purposes of this requirement, a conflict of interest shall
exist when Executive engages in, or plans to engage in, any activities, associations, or interests
that conflict with, or reasonably creates an appearance of a conflict with, Executive’s duties,
responsibilities, authorities, or obligations for and to the Company Group. For the avoidance of
doubt, the parties acknowledge that Executive’s brother is engaged in a Business competitive with
the Company and social and family activities of Executive and his brother that are not
Business-related are not intended to be, and will not constitute, a violation of this Section
8 or any policy of the Company regarding conflicts of interest.



9. Confidentiality. In the course of Executive’s employment with the Company and the
performance of Executive’s duties on behalf of the Company Group hereunder, Executive will be
provided with, and will have access to, Confidential Information (as defined below) of the Company
Group and confidential information of third parties who have supplied such information to the
Company Group, as applicable. In consideration of Executive’s receipt and access to such
Confidential Information and in exchange for other valuable consideration provided hereunder, and
as a condition of Executive’s employment, Executive agrees to comply with this Section 9.



(a) Executive agrees, both during the Employment Period and thereafter that, except as
expressly permitted by this Agreement or by directive of the Board, Executive shall not disclose
any Confidential Information to any person or entity and shall not use any Confidential Information
except for the benefit of the Company Group. Executive acknowledges and agrees that Executive
would inevitably use and disclose Confidential Information in violation of this Section 9
if Executive were to violate any of the covenants set forth in Section 10. Executive shall
follow all Company policies and protocols regarding the physical security of all documents and
other material containing Confidential Information (regardless of the medium on which the
Confidential Information is stored). The covenants of this Section 9(a) shall apply to all
Confidential Information, whether now known or later to become known to Executive during the period
that Executive is employed or affiliated with the Company or any member of the Company Group.



(b) Notwithstanding any provision of Section 9(a) to the contrary, Executive may make
the following disclosures and uses of Confidential Information:




(i) disclosures to other employees of or attorneys for the Company Group who in the
reasonable and good faith belief of Executive have a need to know the information in
connection with the business of the Company Group;




(ii) disclosures to customers and suppliers when, in the reasonable and good faith
belief of Executive, such disclosure is in connection with Executive’s performance of
Executive’s duties under this Agreement and is in the best interests of the Company Group;




(iii) disclosures and uses that are approved in writing by the Board;




(iv) disclosures to a person or entity that has (x) been retained by the Company Group
to provide services to the Company Group and (y) agreed in writing to abide by the terms of
a confidentiality agreement; or




(v) disclosures for the purpose of complying with any applicable laws or regulatory
requirements or that Executive is legally compelled to make by deposition, interrogatory,
request for documents, subpoena, civil investigative demand, order of a court of competent
jurisdiction, or similar process, or otherwise by law; provided, however, that, prior to any
such disclosure, Executive shall, to the extent legally permissible and practicable:




(A) provide the Board with prompt notice of such requirements so that the Board
may, at its expense, seek a protective order or other appropriate remedy or waive
compliance with the terms of this Section 9;




(B) consult with the Board on the advisability of taking steps to resist or
narrow such disclosure; and




(C) cooperate with the Board (at the Company’s reasonable cost and expense) in
any attempt it may make to obtain a protective order or other appropriate remedy or
assurance that confidential treatment will be afforded the Confidential Information;
and in the event such protective order or other remedy is not obtained, Executive
agrees (1) to furnish only that portion of the Confidential Information that is
required to be furnished, as advised by written opinion of counsel to Executive, if
any, and (2) to exercise (at the Company’s reasonable cost and expense) all
reasonable efforts to obtain assurance that confidential treatment will be accorded
such Confidential Information.



(c) Upon the expiration of the Employment Period and at any other time upon request of the
Company, Executive shall promptly surrender and deliver to the Company all documents (including
electronically stored information) and all copies thereof and all other materials of any nature
containing or pertaining to all Confidential Information in Executive’s possession, custody and
control and shall not retain any such document or other materials. Within 10 days of any such
request, Executive shall certify to the Company in writing that all such documents and materials
have been returned to the Company.



(d) All non-public or proprietary information, trade secrets, designs, ideas, concepts,
improvements, product developments, discoveries and inventions, whether patentable or not, that are
conceived, made, developed or acquired by or disclosed to Executive, individually or in conjunction
with others, during the period that Executive is employed by the Company and any other member of
the Company Group (whether during business hours or otherwise and whether on the Company’s premises
or otherwise) that relate to any member of the Company Group’s businesses or properties, ownership,
regulatory status, products or services (including all such information relating to corporate
opportunities, operations, future plans, methods of doing business, processes, business plans,
business practices, strategies for developing business and market share, research, financial and
sales data, pricing information, evaluations, opinions, interpretations, acquisition prospects,
vendors or suppliers, compensation paid to employees or other terms of employment, the identity of
customers or their requirements, the identity of key contacts within customers’ organizations or
within the organization of acquisition prospects, or marketing and merchandising techniques,
prospective names and marks) is defined as “Confidential Information.”  Moreover, all
documents, videotapes, written presentations, brochures, drawings, memoranda, notes, records,
files, correspondence, manuals, models, specifications, computer programs, e-mail, voice mail,
electronic databases, maps, drawings, architectural renditions, models and all other writings or
materials of any type including or embodying any of such information, ideas, concepts,
improvements, discoveries, inventions and other similar forms of expression are and shall be the
sole and exclusive property of the Company Group and be subject to the same restrictions on
disclosure applicable to all Confidential Information pursuant to this Agreement. For purposes of
this Agreement, Confidential Information shall not include any information that (i) is or becomes
generally available to the public other than as a result of a disclosure or wrongful act of
Executive or any of Executive’s agents; (ii) was available to Executive on a non-confidential basis
before its disclosure by a member of the Company Group; (iii) is personal compensation information,
tax information, insurance information, or other similar personal information regarding Executive,
or (iv) becomes available to Executive on a non-confidential basis from a source other than a
member of the Company Group; provided that such source is not bound by a confidentiality agreement
with, or other obligation with respect to confidentiality to, a member of the Company Group.



(e) Nothing herein will prevent Executive from making a good faith report of possible
violations of applicable law to any governmental agency or entity or making disclosures that are
protected under the whistleblower provisions of applicable law.



10. Non-Competition; Non-Solicitation.



(a) The Company shall provide Executive access to the Confidential Information for use only
during the Employment Period, and Executive acknowledges and agrees that the Company Group will be
entrusting Executive, in Executive’s unique and special capacity, with developing the goodwill of
the Company Group, and in consideration thereof and in consideration of the Company providing
Executive with access to Confidential Information and as an express incentive for the Company to
enter into this Agreement and employ Executive, Executive has voluntarily agreed to the covenants
set forth in this Section 10. Executive further agrees and acknowledges that the
limitations and restrictions set forth herein, including geographical and temporal restrictions on
certain competitive activities, are reasonable in all respects and not oppressive, will not cause
Executive undue hardship, and are material and substantial parts of this Agreement intended and
necessary to prevent unfair competition and to protect the Company Group’s Confidential
Information, goodwill and substantial and legitimate business interests.



(b) Executive agrees that, during the Prohibited Period, Executive shall not, without the
prior written approval of the Company, directly or indirectly, for Executive or on behalf of or in
conjunction with any other person or entity of whatever nature:




(i) engage in or participate within the Market Area in competition with any member of
the Company Group in any aspect of the Business, which such prohibition shall prevent
Executive from, within the Market Area, (A) directly or indirectly owning, managing,
operating, joining, becoming an officer, director, employee or consultant of any person or
entity engaged in, or planning to engage in, such Business in competition, or anticipated
competition, with any member of the Company Group, and (B) loaning money to or selling or
leasing equipment or real estate to, or otherwise being affiliated with any such person or
entity, in either case in connection with any competition or anticipated competition in any
aspect of the Business;




(ii) appropriate any Business Opportunity of, or relating to, the Company Group located
in the Market Area;




(iii) solicit, canvass, approach, encourage, entice or induce any customer or supplier
of any member of the Company Group to cease or lessen such customer’s or supplier’s business
with the Company Group; or




(iv) solicit, canvass, approach, encourage, entice or induce any employee or contractor
of the Company Group to terminate his, her or its employment or engagement with any member
of the Company Group.



(c) Because of the difficulty of measuring economic losses to the Company Group as a result of
a breach of the covenants set forth in Section 9 and in this Section 10, and
because of the immediate and irreparable damage that would be caused to the members of the Company
Group for which they would have no other adequate remedy, Executive agrees that the Company shall
be entitled to enforce the foregoing covenants, in the event of a breach, by injunctions and
restraining orders and that such enforcement shall not be the Company’s exclusive remedy for a
breach but instead shall be in addition to all other rights and remedies available to the Company
at law and equity.



(d) The covenants in this Section 10 are severable and separate, and the
unenforceability of any specific covenant (or portion thereof) shall not affect the provisions of
any other covenant (or portion thereof). Moreover, in the event any arbitrator or court of
competent jurisdiction shall determine that the scope, time or territorial restrictions set forth
are unreasonable, then it is the intention of the parties that such restrictions be enforced to the
fullest extent which the arbitrator or court deems reasonable, and this Agreement shall thereby be
reformed.



(e) For purposes of this Section 10, the following terms shall have the following
meanings:




(i) “Business” shall mean the business and operations that are the same or
similar to those performed by the Company and any other member of the Company Group for
which Executive provides services or about which Executive obtains Confidential Information
during the Employment Period, which such business and operations include any business that
the Company or any other member of the Company Group have material plans to engage in.




(ii) “Business Opportunity” shall mean any commercial, investment or other
business opportunity relating to the Business.




(iii) “Market Area” shall mean: (A) each state in the United States where, as
of the Termination Date, the Company or any member of the Company Group conducts business;
and (B) any other location within seventy five (75) miles of any location where, as of the
Termination Date, the Company or any member of the Company Group has material plans to
conduct business of which Executive is aware.




(iv) “Prohibited Period” shall mean the Employment Period and a period of 12
months following the end of the Employment Period.



11. Ownership of Intellectual Property. Executive agrees that the Company shall own,
and Executive shall (and hereby does) assign, all right, title and interest (including patent
rights, copyrights, trade secret rights, mask work rights, trademark rights, and all other
intellectual and industrial property rights of any sort throughout the world) relating to any and
all discoveries, improvements and inventions (whether or not patentable), works of authorship, mask
works, designs, know-how, ideas and information authored, created, contributed to, made or
conceived or reduced to practice, in whole or in part, by Executive during the period in which
Executive is employed or affiliated with the Company or any other member of the Company Group that
either (a) relate, at the time of conception, reduction to practice, creation, derivation or
development, to the Company Group’s businesses or actual or anticipated research or development, or
(b) were developed on any amount of any member of the Company Group’s time or with the use of any
of the Company Group’s equipment, supplies, facilities or trade secret information (all of the
foregoing collectively referred to herein as “Company Intellectual Property”), and
Executive will promptly disclose all Company Intellectual Property to the Company. All of
Executive’s works of authorship and associated copyrights created during the period in which
Executive is or has been employed or affiliated with the Company or any other member of the Company
Group and in the scope of Executive’s employment shall be deemed to be “works made for hire” within
the meaning of the Copyright Act. Executive agrees to perform, during and after the period in
which Executive is or has been employed or affiliated with the Company or any other member of the
Company Group, all reasonable acts deemed necessary by the Company Group to assist the Company, at
the Company’s expense, in obtaining and enforcing its rights throughout the world in the Company
Intellectual Property. Such acts may include, but are not limited to, execution of documents and
assistance or cooperation (i) in the filing, prosecution, registration, and memorialization of
assignment of any applicable patents, copyrights, mask work, or other applications, (ii) in the
enforcement of any applicable patents, copyrights, mask work, moral rights, trade secrets, or other
proprietary rights, and (iii) in other legal proceedings related to the Company Intellectual
Property.



12. Arbitration.



(a) Subject to Section 12(b), any dispute, controversy or claim between Executive and
the Company arising out of or relating to this Agreement or Executive’s employment with the Company
will be finally settled by arbitration in Houston, Texas before, and in accordance with the
then-existing American Arbitration Association (“AAA”) Employment Arbitration Rules. The
arbitration award shall be final and binding on both parties. Any arbitration conducted under this
Section 12 shall be heard by a single arbitrator (the “Arbitrator”) selected in
accordance with the then-applicable rules of the AAA. The Arbitrator shall expeditiously (and, if
practicable, within 120 days after the selection of the Arbitrator) hear and decide all matters
concerning the dispute. Except as expressly provided to the contrary in this Agreement, the
Arbitrator shall have the power to (i) gather such materials, information, testimony and evidence
as the Arbitrator deems relevant to the dispute before him or her (and each party will provide such
materials, information, testimony and evidence requested by the Arbitrator), and (ii) grant
injunctive relief and enforce specific performance. The decision of the Arbitrator shall be
reasoned, rendered in writing, be final and binding upon the disputing parties and the parties
agree that judgment upon the award may be entered by any court of competent jurisdiction; provided,
however, that the parties agree that the Arbitrator and any court enforcing the award of the
Arbitrator shall not have the right or authority to award punitive or exemplary damages to any
disputing party. The party whom the Arbitrator determines is the prevailing party in such
arbitration shall receive, in addition to any other award pursuant to such arbitration or
associated judgment, reimbursement from the other party of all reasonable legal fees and costs.



(b) It is recognized and acknowledged by Executive that a breach by Executive of the covenants
contained in Sections 9, 10, and 11 will cause irreparable damage to the
Company and its goodwill, the exact amount of which will be difficult or impossible to ascertain;
and that the remedies at law for any such breach will be inadequate. Accordingly, notwithstanding
Section 12 hereof, Executive agrees that in the event of a breach of any of the covenants
contained in Sections 9, 10 and 11 in addition to any other remedy which
may be available at law or in equity, the Company will be entitled to specific performance and
injunctive relief.



(c) By entering into this Agreement and entering into the arbitration provisions of this
Section 12, THE PARTIES EXPRESSLY ACKNOWLEDGE AND AGREE THAT THEY ARE KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVING THEIR RIGHTS TO A JURY TRIAL.



(d) Nothing in this Section 12 shall prohibit a party to this Agreement from
(i) instituting litigation to enforce any arbitration award, or (ii) joining the other party to
this Agreement in a litigation initiated by a person or entity that is not a party to this
Agreement.



13. Defense of Claims. During the Employment Period and thereafter, upon request from
the Company, Executive shall reasonably cooperate with the Company Group in the defense of any
claims or actions that may be made by or against any member of the Company Group that relate to
Executive’s actual or prior areas of responsibility. The Company agrees to pay or reimburse
Executive for all of Executive’s reasonable travel and other direct expenses incurred, or
reasonably incurred, to comply with Executive’s obligations under this Section 13,
including, without limitation, reasonable attorney’s fees to the extent incurred in the defense of
claims or actions on behalf of a member of the Company Group only; provided that Executive
provides reasonable documentation of same and obtains the Company’s prior approval for incurring
such expenses; and provided further that Executive’s compliance with his obligations under this
Section 13 after the end of the Employment Period is subject to the Company’s payment to
Executive of a reasonable per diem fee for Executive’s services and such services being performed
at mutually agreed to and convenient times.



14. D&O Insurance and Indemnification. Executive shall be covered by any director and
officer liability insurance maintained by the Company, pursuant to the terms of the applicable
plan(s) and policy(ies), and shall receive any indemnification protections provided by the Company,
whether through the Company’s governing documents, separate indemnity agreements or otherwise, in
each case, to the same extent as similarly situated officers and directors of the Company. The
obligations set forth in this Section shall survive termination of this Agreement and the end of
the Term in accordance with the terms of such applicable plan(s), policy(ies), governing documents
or agreements and the Company agrees to keep in place such plan(s) and policy(ies) following the
termination of this Agreement and the end of the Term to the extent such plan(s) and policy(ies)
remain in effect for the Company’s then-current directors and officers.



15. Withholdings; Deductions. The Company may withhold and deduct from any benefits
and payments made or to be made pursuant to this Agreement (a) all federal, state, local and other
taxes as may be required pursuant to any law or governmental regulation or ruling and (b) any
deductions consented to in writing by Executive.



16. Title and Headings; Construction. Titles and headings to Sections hereof are for
the purpose of reference only and shall in no way limit, define or otherwise affect the provisions
hereof. Any and all Exhibits or Attachments referred to in this Agreement are, by such reference,
incorporated herein and made a part hereof for all purposes. Unless the context requires
otherwise, all references herein to an agreement, instrument or other document shall be deemed to
refer to such agreement, instrument or other document as amended, supplemented, modified and
restated from time to time to the extent permitted by the provisions thereof. All references to
“dollars” or “$” in this Agreement refer to United States dollars. The word “or” as used herein is
not exclusive and is deemed to have the meaning “and/or.” The words “herein”, “hereof”,
“hereunder” and other compounds of the word “here” shall refer to the entire Agreement, including
all Exhibits attached hereto, and not to any particular provision hereof. Wherever the context so
requires, the masculine gender includes the feminine or neuter, and the singular number includes
the plural and conversely. The use herein of the word “including” following any general statement,
term or matter shall not be construed to limit such statement, term or matter to the specific items
or matters set forth immediately following such word or to similar items or matters, whether or not
non-limiting language (such as “without limitation”, “but not limited to”, or words of similar
import) is used with reference thereto, but rather shall be deemed to refer to all other items or
matters that could reasonably fall within the broadest possible scope of such general statement,
term or matter. Neither this Agreement nor any uncertainty or ambiguity herein shall be construed
or resolved against any party hereto, whether under any rule of construction or otherwise. On the
contrary, this Agreement has been reviewed by each of the parties hereto and shall be construed and
interpreted according to the ordinary meaning of the words used so as to fairly accomplish the
purposes and intentions of the parties hereto.



17. Applicable Law; Submission to Jurisdiction. This Agreement shall in all respects
be construed according to the laws of the State of Texas without regard to its conflict of laws
principles that would result in the application of the laws of another jurisdiction. With respect
to any claim or dispute related to or arising under this Agreement, the parties hereby consent to
the arbitration provisions of Section 12 and recognize and agree that should any resort to
a court be necessary and permitted under this Agreement, then they consent to the exclusive
jurisdiction, forum and venue of the state and federal courts located in Houston, Texas.



18. Entire Agreement and Amendment. This Agreement contains the entire agreement of
the parties with respect to the matters covered herein and supersedes all prior and contemporaneous
agreements and understandings, oral or written, between the parties hereto concerning the subject
matter hereof. This Agreement may be amended only by a written instrument executed by both parties
hereto. This Agreement supersedes the Prior Agreement in all respects.



19. Waiver of Breach. Any waiver of this Agreement must be executed by the party to
be bound by such waiver. No waiver by either party hereto of a breach of any provision of this
Agreement by the other party, or of compliance with any condition or provision of this Agreement to
be performed by such other party, will operate or be construed as a waiver of any subsequent breach
by such other party or any similar or dissimilar provision or condition at the same or any
subsequent time. The failure of either party hereto to take any action by reason of any breach
will not deprive such party of the right to take action at any time while such breach continues.



20. Assignment. This Agreement is personal to Executive, and neither this Agreement
nor any rights or obligations hereunder shall be assignable or otherwise transferred by Executive.
The Company may assign this Agreement without Executive’s consent to any member of the Company
Group and to any successor (whether by merger, purchase or otherwise) (i) to all or substantially
all of the equity, assets or businesses of the Company or (ii) in a “Change of Control” (as defined
in the Stock Awards Plan).



21. Notices. Notices provided for in this Agreement shall be in writing and shall be
deemed to have been duly received (a) when delivered in person or sent by facsimile transmission to
the number, if applicable, set forth below, (b) on the first business day after such notice is sent
by air express overnight courier service, or (c) on the third business day following deposit in the
United States mail, registered or certified mail, return receipt requested, postage prepaid and
addressed, in each case, to the following address, as applicable:




If to the Company, addressed to:



Mitcham Industries, Inc.



8141 SH 75 South



P. O. Box 1175



Huntsville, Texas 77342




If to Executive, addressed to:



Billy F. Mitcham, Jr.



563 Elkins Lake



Huntsville, Texas 77340



22. Counterparts. This Agreement may be executed in any number of counterparts,
including by electronic mail or facsimile, each of which when so executed and delivered shall be an
original, but all such counterparts shall together constitute one and the same instrument. Each
counterpart may consist of a copy hereof containing multiple signature pages, each signed by one
party, but together signed by both parties hereto.



23. Deemed Resignations. Except as otherwise determined by the Board or as otherwise
agreed to in writing by Executive and any member of the Company Group prior to the termination of
Executive’s employment, any termination of Executive’s employment shall constitute (a) an automatic
resignation of Executive as an officer of the Company and each member of the Company Group, as
applicable and (b) if applicable, an automatic resignation of Executive from the board of directors
(or similar governing body) of any member of the Company Group (other than the Company) and from
the board of directors (or similar governing body) of any corporation, limited liability entity,
unlimited liability entity or other entity in which any member of the Company Group holds an equity
interest and with respect to which board (or similar governing body) Executive serves as such
Company Group member’s designee or other representative.



24. Section 409A.



(a) Notwithstanding any provision of this Agreement to the contrary, all provisions of this
Agreement are intended to comply with Section 409A of the Code, and the applicable Treasury
regulations and administrative guidance issued thereunder (collectively, “Section 409A”) or
an exemption therefrom and shall be construed and administered in accordance with such intent to
avoid the imposition of additional taxes on Executive pursuant to Section 409A. Any payments or
benefits under this Agreement that may be excluded from Section 409A either as separation pay due
to an involuntary separation from service or as a short-term deferral shall be excluded from
Section 409A to the maximum extent possible. For purposes of Section 409A, each installment payment
provided under this Agreement shall be treated as a separate payment. Any payments to be made under
this Agreement upon a termination of Executive’s employment shall only be made if such termination
of employment constitutes a “separation from service” under Section 409A to the extent required for
compliance with Section 409A.



(b) To the extent that any right to reimbursement of expenses or payment of any benefit
in-kind under this Agreement constitutes nonqualified deferred compensation (within the meaning of
Section 409A), (i) any such expense reimbursement shall be made by the Company no later than the
last day of the taxable year following the taxable year in which such expense was incurred by
Executive, (ii) the right to reimbursement or in-kind benefits shall not be subject to liquidation
or exchange for another benefit, and (iii) the amount of expenses eligible for reimbursement or
in-kind benefits provided during any taxable year shall not affect the expenses eligible for
reimbursement or in-kind benefits to be provided in any other taxable year; provided, that the
foregoing clause shall not be violated with regard to expenses reimbursed under any arrangement
covered by Section 105(b) of the Code solely because such expenses are subject to a limit related
to the period in which the arrangement is in effect.



(c) Notwithstanding any provision in this Agreement to the contrary, if any payment or benefit
provided for herein would be subject to additional taxes and interest under Section 409A if
Executive’s receipt of such payment or benefit is not delayed until the earlier of  the date of
Executive’s death or (ii) the date that is six months after the Termination Date (such date, the
“Section 409A Payment Date”), then such payment or benefit shall not be provided to
Executive (or Executive’s estate, if applicable) until the Section 409A Payment Date.
Notwithstanding the foregoing, the Company makes no representations that the payments and benefits
provided under this Agreement are exempt from, or compliant with, Section 409A and in no event
shall any member of the Company Group be liable for all or any portion of any taxes, penalties,
interest or other expenses that may be incurred by Executive on account of non-compliance with
Section 409A.



25. Attorney’s Fees. The Company agrees to either pay directly or to reimburse
Executive for reasonable attorney’s fees and any related expenses incurred by Executive in
connection with the services of his attorneys concerning this Agreement as well as any previously
proposed agreements intended or contemplated to replace the Prior Agreement. Such fees will be
paid within 30 days after submission of an invoice or other request to pay by either Executive or
his attorneys.



26. Effect of Termination. The provisions of Sections 3(d), 7, 9-15
and 23 and those provisions necessary to interpret and enforce them, shall survive any
termination of this Agreement and any termination of the employment relationship between Executive
and the Company.



27. Third-Party Beneficiaries. Each member of the Company Group that is not a
signatory to this Agreement shall be a third-party beneficiary of Executive’s obligations under
Sections 8, 9, 10, 11 and 12 and shall be entitled to
enforce such obligations as if a party hereto.



28. Severability. If an arbitrator or court of competent jurisdiction determines that
any provision of this Agreement is invalid or unenforceable, then the invalidity or
unenforceability of that provision shall not affect the validity or enforceability of any other
provision of this Agreement, and all other provisions shall remain in full force and effect.



29. Clawback. Notwithstanding any other provisions in this Agreement to the contrary,
any incentive-based compensation, or any other compensation, paid to Executive pursuant to this
Agreement or any other agreement or arrangement with the Company or its affiliates which is subject
to recovery under any law, government regulation or stock exchange listing requirement, will be
subject to such deductions and clawback as may be required to be made pursuant to such law,
government regulation or stock exchange listing requirement (or any policy adopted by the Company
or its affiliates pursuant to any such law, government regulation, stock exchange listing
requirement, or otherwise).



30. Survival. Upon the expiration or other termination of this Agreement, the
respective rights and obligations of the parties hereto shall survive such expiration or other
termination to the extent necessary to carry out the intentions of the parties under this
Agreement.



[Remainder of Page Intentionally Blank; Signature Page Follows]IN WITNESS WHEREOF,
Executive and the Company each have caused this Agreement to be executed in its name and on its
behalf, to be effective as of the Effective Date.



EXECUTIVE




/s/ Billy F. Mitcham, Jr.




	 	 	Billy F. Mitcham, Jr.






MITCHAM INDUSTRIES, INC.




By: /s/ Robert P. Capps

Name:  Robert P. Capps

Title:  Co-Chief Operating Officer,

Executive Vice President-Finance and Chief Financial

Officer




EXHIBIT A




WAIVER AND GENERAL RELEASE




This Waiver and General Release (this “Agreement”) constitutes the release referred to in that
certain Employment Agreement made as of September 8, 2015 (the “Employment Agreement”), between
Mitcham Industries, Inc. (the “Company”) and Billy F. Mitcham, Jr. (“Executive”).



1. For good and valuable consideration, including the Company’s provision of certain severance
pay to Executive in accordance with Section 7(f)(ii) of the Employment Agreement, Executive hereby
releases, discharges and forever acquits the Company, its subsidiaries and affiliates, and each of
the foregoing entities’ respective past, present and future stockholders, officers, members,
partners, directors, managers, employees, agents, attorneys, heirs, representatives, successors and
assigns (collectively, the “Company Parties”), in their personal and representative capacities, as
well as all employee benefit plans maintained by any Company Party and all fiduciaries and
administrators of any such plans, in their personal and representative capacities, from liability
for, and hereby waives, any and all claims, damages, or causes of action of any kind related to
Executive’s employment with any Company Party, the termination of such employment, and any other
acts or omissions related to any matter occurring on or prior to the date that Executive signs this
Agreement including, without limitation, (i) any alleged violation of:  (A) the Age Discrimination
in Employment Act of 1967, as amended (including as amended by the Older Workers Benefit Protection
Act); (B) Title VII of the Civil Rights Act of 1964, as amended; (C) the Civil Rights Act of 1991;
(D) Sections 1981 through 1988 of Title 42 of the United States Code, as amended; (E) the Employee
Retirement Income Security Act of 1974, as amended (“ERISA”); (F) the Immigration Reform Control
Act, as amended; (G) the Americans with Disabilities Act of 1990, as amended; (H) the National
Labor Relations Act, as amended; (I) the Occupational Safety and Health Act, as amended; (J) the
Family and Medical Leave Act of 1993; (K) any federal, state or local anti-discrimination or
anti-retaliation law; (xii) any federal, state or local wage and hour law; (L) any other local,
state or federal law, regulation or ordinance; and (M) any public policy, contract, tort, or common
law claim; (ii) any allegation for costs, fees, or other expenses including attorneys’ fees
incurred in, or with respect to, a Released Claim; (iii) any and all rights, benefits or claims
Executive may have under any employment contract (including the Employment Agreement), incentive
compensation plan or equity-based compensation plan with any Company Party except as expressly
provided in the Employment Agreement and (iv) any claim for compensation or benefits of any kind
not expressly set forth in Section 7(f)(i) or (ii) of the Employment Agreement (collectively, the
“Released Claims”).  For the avoidance of doubt, this release includes, but is not limited to, a
release of any claims for breach of contract, mental pain, suffering and anguish, emotional upset,
impairment of economic opportunities, unlawful interference with employment rights, defamation,
intentional or negligent infliction of emotional distress, fraud, wrongful termination, wrongful
discharge in violation of public policy, breach of any express or implied covenant of good faith
and fair dealing, any claim that a Company Party has dealt with Executive unfairly or in bad faith,
and all other common law contract and tort claims. THIS RELEASE INCLUDES MATTERS ATTRIBUTABLE TO
THE SOLE OR PARTIAL NEGLIGENCE (WHETHER GROSS OR SIMPLE) OR OTHER FAULT, INCLUDING STRICT
LIABILITY, OF ANY OF THE COMPANY PARTIES.



In no event shall the Released Claims include (a) any claim which arises after the date
Executive executes this Agreement, (b) any claim to vested benefits under an employee benefit plan
of any Company Party whether or not such plan is subject to ERISA or any other plan, policy or
arrangement, including incentive and equity plans, maintained by the Company and its affiliates,
(c) any claims related to the obligations of the Company under Section 7(f)(i) or (ii) of the
Employment Agreement, (d) any rights of Executive as a shareholder or owner of any interest in any
Company Party; or (e) any rights of indemnification or director and officer liability insurance
coverage provided to Executive pursuant to the Company’s governing documents and/or pursuant to any
other agreements or policies applicable to Executive immediately prior to the effective date of
Executive’s termination of employment. This Agreement is not intended to indicate that any such
claims exist or that, if they do exist, they are meritorious.  Rather, Executive is simply agreeing
that, in exchange for the consideration recited in the first sentence of the above paragraph, any
and all potential claims of this nature that Executive may have against the Company Parties,
regardless of whether they actually exist, are expressly settled, compromised and waived. 



By signing this Agreement, Executive is bound by it. Anyone who succeeds to Executive’s
rights and responsibilities, such as heirs or the executor of Executive’s estate, is also bound by
this Agreement.  This release also applies to any claims brought by any person or agency or class
action under which Executive may have a right or benefit.



Notwithstanding the release of liability contained herein, nothing in this Agreement prevents
Executive from filing any non-legally waivable claim (including a challenge to the validity of this
Agreement) with the Equal Employment Opportunity Commission (“EEOC”) or comparable state or local
agency or participating in any investigation or proceeding conducted by the EEOC or comparable
state or local agency or cooperating with such agency in any manner; provided, however, that
Executive understands and agrees that Executive is waiving any and all rights to recover any
monetary or personal relief or recovery as a result of such EEOC or comparable state or local
agency proceeding or subsequent legal actions. 



2. Executive agrees not to bring or join any lawsuit against any of the Company Parties in any
court or before any arbitration authority relating to any of the Released Claims.  Executive
represents and warrants that Executive has not filed any claims, complaints, charges or lawsuits
against any of the Company Parties with any governmental agency or with any state or federal court
or arbitrator for, or with respect to, a matter, claim, or incident that occurred or arose out of
one or more occurrences that took place on or prior to the date hereof. Executive further
represents and warrants that Executive has made no assignment, sale, delivery, transfer or
conveyance of any rights Executive has asserted or may have against any of the Company Parties to
any person or entity, in each case, with respect to any Released Claims.



3. By executing and delivering this Agreement, Executive expressly acknowledges that:




(a) Executive has carefully read this Agreement;




(b) Executive has had at least [21] [45] days to consider this Agreement before the
execution and delivery hereof to the Company [to be added if 45-day period applies:, and
Executive acknowledges that attached to this Agreement are (i) a list of the positions and
ages of those employees selected for termination (or participation in the exit incentive or
other employment termination program); (ii) a list of the ages of those employees not
selected for termination (or participation in such program); and (iii) information about the
unit affected by the employment termination program of which Executive’s termination was a
part, including any eligibility factors for such program and any time limits applicable to
such program];




(c) Executive has been and hereby is advised in writing to discuss this Agreement with
an attorney of Executive’s choice and Executive has had adequate opportunity to do so prior
to executing this Agreement;




(d) Executive fully understands the final and binding effect of this Agreement; the
only promises made to Executive to sign this Agreement are those stated in the Employment
Agreement and herein; and Executive is signing this Agreement knowingly, voluntarily and of
Executive’s own free will, and Executive understands and agrees to each of the terms of this
Agreement; and




(e) With the exception of any sums that Executive may be owed pursuant to Sections
7(f)(i) or (ii) of the Employment Agreement, Executive has been paid all wages and other
compensation to which Executive is entitled under the Employment Agreement and received all
leaves (paid and unpaid) to which Executive was entitled during the period that Executive
was employed by the Company and any other Company Party.



4. Notwithstanding the initial effectiveness of this Agreement, Executive may revoke the
delivery (and therefore the effectiveness) of this Agreement within the seven-day period beginning
on the date Executive delivers this Agreement to the Board of Directors of the Company (such seven
day period being referred to herein as the “Release Revocation Period”). To be effective, such
revocation must be in writing signed by Executive and must be received by the Board of Directors of
the Company before 11:59 p.m., [?] time, on the last day of the Release Revocation Period.  If an
effective revocation is delivered in the foregoing manner and timeframe, this Agreement shall be of
no force or effect and shall be null and void ab initio.  No consideration shall be paid if
this Agreement is revoked by Executive in the foregoing manner.



5. In signing below, Executive: (a) forever waives and relinquishes any right or claim to
reinstatement to active employment with any Company Party and further acknowledges that no Company
Party has an obligation to rehire or return Executive to active duty at any time in the future; and
(b) acknowledges that all agreements applicable to which Executive is a party or bound relating to
non-competition, non-solicitation, non-recruitment, derogatory statements and confidential or
proprietary information of a Company Party shall continue in full force and effect.



6. Executive agrees that the terms and conditions of this Agreement are confidential and that
he will not, directly or indirectly, disclose the existence of or terms of this Agreement to anyone
other than his attorney or tax advisor, except to the extent such disclosure may be required for
accounting or tax reporting purposes or otherwise be required by law or direction of a court.
Nothing in this provision shall be construed to prohibit Executive from disclosing this Agreement
to the EEOC in connection with any complaint or charge submitted to that agency.



7. In the event that any provision of this Agreement (or part thereof) should be held
void, voidable, or unenforceable, such provision (or part thereof) shall be severable and the
remaining portions shall remain in full force and effect.



IN WITNESS WHEREOF, I have signed this Release on the        day of       , 20      .



      



Billy F. Mitcham, Jr.