exv10w2






Exhibit 10.2




EXCLUSIVE EQUIPMENT LEASE AGREEMENT




     Exclusive Equipment Lease Agreement (the “Agreement”) is entered into as of the 4th day of
September, 2009 (the “Effective Date”) between Mitcham Industries, Inc., a Texas corporation
(“Mitcham”), and SERCEL, Inc., a corporation organized under the laws of Oklahoma (“SERCEL”), which
parties agree as follows:



0. DEFINITIONS AND INTERPRETATION




In this Agreement, the following terms have the meanings set forth below, which shall be equally
applicable to both the singular and the plural form:





	 	i.	 	“Affiliate” shall mean with respect to any person, any other person directly or
indirectly controlling, controlled by or under common control with the first person.
For the purposes of this Agreement, “control,” when used with respect to any Person,
means the possession, directly or indirectly, of the power to vote 50% or more of the
securities having ordinary voting power for the election of directors (or comparable
positions) of such person or any one or more business entities which are: (a) owned or
controlled by, (b) owning or controlling, or (c) owned or controlled by the business
entity owning directly or indirectly, at least fifty percent (50% ) of the voting stock
ordinarily entitled to vote in the election of directors.
	 
	 	 	 	In the case of SERCEL, “Affiliate” shall be further limited to business entities, which
are engaged in the manufacturing of seismic equipment.
	 
	 	ii.	 	“Agreement” shall mean the present agreement (including the Schedules) as
amended in writing from time to time.
	 
	 	iii.	 	“Confidential Information” shall mean any and all non-public technical,
business and/or proprietary information disclosed by one Party to the other Party,
directly or indirectly, in writing with respect to a Party’s business strategies and
practices, methodologies, trade secrets, know-how, pricing, technology, software,
products, product plans, services, and other information the confidential or
proprietary nature of that is reasonably apparent under the circumstances. The
existence and terms of this Agreement shall be deemed Confidential Information, unless
otherwise agreed.
	 
	 	iv.	 	“Effective Date” shall mean January 1st, 2009.
	 
	 	v.	 	“Exclusive Authorized Third Party Lessor” shall mean that Mitcham shall receive
first opportunity from Sercel to rent or lease Sercel’s products.




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	 	vi.	 	“Levels” shall mean (1) one 3-component station of Slimwave, Geowave or
Maxiwave.
	 
	 	vii.	 	“MITCHAM” shall mean Mitcham Industries Inc, and its Affiliates engaged in the
rental, lease, and sales of seismic data acquisition systems and equipment throughout
the world.
	 
	 	viii.	 	“Parties” shall mean MITCHAM and Sercel; “Party” shall mean one of them.
	 
	 	ix.	 	“Products” shall mean any land, transition zone, marine or seabed seismic
equipment, down hole acquisition equipment and/or software. “Sercel” shall mean Sercel
Inc. and its Affiliates engaged in the manufacture and marketing of seismic equipment.
	 
	 	x.	 	“VSP Tools” shall mean Sercel VSP products including Slimwave, Geowave and
Maxiwave
	 
	 	xi.	 	“Year” shall mean one of the three 365-day periods commencing on the Effective
Date or the first two anniversaries thereof.





1. Introduction. SERCEL and certain of its Affiliates design, manufacture and market
fully-configured seismic data acquisition systems (the “SERCEL Systems”), the components thereof
and equipment related thereto, including station units that are sometimes called “channel boxes.”
At the present time, SERCEL and certain of its Affiliates manufacture equipment as described on
Schedule 1a and Schedule 1b (collectively the “Products”). Mitcham and certain of
its Affiliates provides full service leasing services to customers in the oil and gas industry,
including the leasing of new and used channel boxes to customers who have SERCEL Systems. For good
and valuable consideration, the receipt and sufficiency of which are hereby acknowledged for all
purposes, Mitcham and SERCEL agree to the terms set forth herein.




2. Exclusive Authorized Third Party Lessor.




     (a) Mitcham hereby represents to SERCEL that Mitcham has the necessary skills, experience,
personnel, facilities and equipment to effectively perform its responsibilities as the exclusive
leasing representative for SERCEL as described in the Agreement. In reliance upon that
representation, SERCEL hereby appoints Mitcham as the exclusive authorized lessor of the Products
listed on Schedule 1a (the “Exclusive Products”) throughout the world (the “Territory”) and
as the non-exclusive authorized lessor of the Products listed on Schedule 1b throughout the
Territory; except that Mitcham shall not offer financing leases or leases equal to or greater than
one year except with SERCEL’s prior written consent. SERCEL has the right to undertake equipment
leases with a term greater than or equal to one year without any prior notice given to Mitcham.
During the term of this Agreement, Mitcham will actively promote and solicit the leasing of the
Products.



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     (b) During the term of this Agreement, SERCEL shall not recommend or suggest any competitor of
Mitcham (including without limitation the competitors listed in Schedule 2a) or any other
third party known by SERCEL or its Affiliates as a source from which any of the Exclusive Products
may be leased in the Territory.



     (c) During the term of this Agreement, SERCEL and/or any Affiliate shall remain free to
perform, directly or indirectly, with any third party any operating or financial lease with a term
greater than or equal to one year or, subject to the provisions of paragraph 2(f) herein, with
respect to Land, Marine, OBC, VSP Tools Product throughout the Territory. The Parties acknowledge
that the purpose of this Agreement is the lease of Products by Mitcham. This Agreement does not
allow Mitcham to act as distributor, agent, commercial representative or reseller of brand-new
Products.



     (d) Mitcham’s exclusive rights to lease the DSU3 428XL system shall apply throughout the
Territory except that:




     (i) Mitcham will not rent DSU3 428XL system for use in mainland China to any seismic
contractor that is owned or controlled by Chinese nationals without SERCEL’s prior written
consent; and




     (ii) Mitcham will have non-exclusive rights of rental of the 428XL DSU3 system in the
countries of the Commonwealth of Independent States, including Azerbaijan, Kazakhstan,
Turkmenistan, and Uzbekistan.



     (e) Mitcham’s exclusive rights to lease VSP Tools shall apply throughout North and South
America except that:




     (i) Mitcham will not rent VSP Tools for use in mainland China to any seismic contractor
that is owned or controlled by Chinese nationals without SERCEL’s prior written consent; and




     (ii) Mitcham will have non-exclusive rights of rental of VSP Tools for Europe, Asia,
Africa and the Australia Continents.



     (f) During the term of the Agreement, in the event that a third party makes inquiry of SERCEL
as to the possibility of leasing any of the Products anywhere in the Territory, then and upon each
inquiry, SERCEL shall contact Mitcham (by phone, email or letter) and explain in reasonable detail
the identity of the third party and the terms, if any, that have been discussed with regard to such
lease, and Mitcham shall promptly contact such third party and negotiate the terms of the proposed
lease. Mitcham shall have discretion to accept or reject any third party referred by SERCEL for
leasing as a result of (i) possessing an insufficient amount of the Products for lease to such
third party (provided, however, the continued failure of Mitcham to maintain a sufficient amount of
products to satisfy demand could be evidence that Mitcham is not actively promoting the leasing of
Products, as required hereunder unless caused by the



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 failure of SERCEL to deliver Products to Mitcham), (ii) reasonably apparent credit risk or any other
reasonable business-related factor, or (iii) inability to reach agreement on the terms of such
lease. Notwithstanding the previous sentence, Mitcham shall use commercially reasonable best
efforts to service every third party referred by SERCEL for leasing. Mitcham shall be deemed to
have rejected such a third party as a result of inability to agree on the terms within fifteen (15)
business days of such third party’s first contact by Mitcham with regard to such proposed lease.
SERCEL may then respond to this one time business opportunity in any means it sees fit. If SERCEL
leases to such third party, then SERCEL shall have the right to continue to lease to such third
party after the term of the initial lease between them shall terminate; provided, however, that if
(x) the lease between such a third party and SERCEL shall terminate, (y) the leased Product is
returned to SERCEL, and/or (z) such third party shall later make an inquiry concerning leasing of
the Products, SERCEL shall again follow the procedure set forth in this Sub-Section (f); and
provided further that when such lease ends, SERCEL will offer to sell any Products leased
thereunder to Mitcham, on mutually agreed terms. The purchase of these products will not count
toward the minimum purchase commitment made by Mitcham to SERCEL in this agreement.




     (g) In no event shall either SERCEL or Mitcham have any right to require that the other party
charge any specific price or follow any pricing guidelines or establish or require any other
specific or general term with regard to the leasing of any of the Products, or the provision of any
other good or service by either of them. Notwithstanding the foregoing, Mitcham shall use its
commercially reasonable best efforts to have a reasonable quantity of the Products available for
lease at prices which Mitcham believes reflects the supply of and demand for the Products.



3. Purchase of Products from SERCEL.




     (a) Subject to the other provisions of this Agreement, Mitcham agrees that it will purchase
from SERCEL and SERCEL agrees that it will sell to Mitcham, all of the Products necessary to meet
Mitcham’s obligations under each lease as provided herein. The terms and conditions of purchases by
Mitcham of the Products hereunder shall be governed by SERCEL’s standard terms and conditions, a
copy of which is attached hereto as Schedule 3(a); provided, however, that in the event of
any conflict between the terms of such terms hereof, the terms of the Agreement shall prevail.
SERCEL may update Schedule 3(a) from time to time after written notice to Mitcham.



     (b) The price of the Products shall be determined in accordance with the discount(s) set forth
on Schedule 3(b), and Mitcham shall receive the discounts set forth on Schedule
3(b) with regard to the Products ordered by Mitcham in each order, subject to adjustment agreed
to by the parties pursuant to paragraph 3(c) herein..



     (c) The Parties acknowledge that SERCEL’s prices for the products are based on discounts
offered by SERCEL based on volume. SERCEL agrees to offer Mitcham discounts on the Products that
are at least as favorable to Mitcham as SERCEL offers to its other customers for comparable volumes
and consideration to payment terms.



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     (d) Delivery is Ex-Works Sercel Plant(s). Packing charges will be quoted to Mitcham and the
purchase order received from Mitcham will reflect the full value of the quotation including packing
charges. Mitcham may instruct Sercel at their discretion to include freight and insurance in the
proposal. This will be quoted at Sercel’s cost plus a handling fee of ten percent (10%).



     (e) Sercel reserves the right to increases prices of product and repair services up to five
(5%) percent per year. This only includes products and repair services that involve Sercel
manufactured products. Out sourced services and products will be increased at a proportionate level
to increases imposed on Sercel.



4. Minimum Purchase Requirements for 428XL DSU3.




     (a) Subject to the terms hereof, Mitcham will issue a Purchase Order for 27,000 DSU3
428XL system channels within two weeks of signing this agreement. This PO will be called a Master
PO. Subsequently, Mitcham will issue PO’s which reference the Master PO to draw against the 27,000
channels. These PO’s will be called Supply PO’s. Orders that Mitcham places with SERCEL affiliates
apply toward the minimum purchase requirements for 428XL DSU3. In the event that Mitcham
does not purchase Products from SERCEL via Supply PO’s under the Agreement in an amount
that satisfies the Minimum Purchase Requirements (set forth below), at SERCEL’s option but subject
to Section 4(c) below, SERCEL may terminate this Agreement on 30 days written notice; and upon such
termination Mitcham shall not be obligated to purchase any Products other than the Products that it
has ordered prior to the effective date of such termination.



     (b) For purposes hereof, the term “Minimum Purchase Requirement” shall mean Products purchased
and delivered to Mitcham via Supply PO’s from SERCEL as follows:




From July 1, 2009 to December 31, 2009: 3,000 428XL DSU3; 9,000 Channels




From January 1, 2010 to December 31, 2010: 3,000 428XL DSU3; 9,000 Channels




From January 1, 2011 to December 31, 2011: 3,000 428XL DSU3; 9,000 Channels



     (c) Notwithstanding anything herein to the contrary, in the event that a Minimum Purchase
Requirement is not satisfied by Mitcham in any period ending before December 31, 2011, this
Agreement may not be terminated by SERCEL due to such failure if Mitcham meets the Minimum Purchase
Requirement for the subsequent period (i.e., Mitcham will have one period that equals (1) one year
in which to cure any failure to meet the Minimum Purchase Requirement).



     (d) For purposes of determining whether Mitcham has satisfied the Minimum Purchase
Requirement, Products purchased by Mitcham shall include Products ordered by Mitcham via
Supply PO’s regardless of when such Products are delivered so long as such



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Products are ordered before 90 days of the end of a period and paid for in accordance with the
terms and conditions set forth in Schedule 3(a). If Mitcham orders within the specified
period and SERCEL is not able to deliver due to manufacturing delivery issues, there will be no
penalty against Mitcham and such orders will be applied to satisfy the Minimum Purchase
Requirement. In the event Mitcham purchases more than the Minimum Purchase Requirement in any given
period, such excess shall be applied in meeting the Minimum Purchase Requirement for any subsequent
period.




5. Minimum Purchase Requirement for VSP Tools




     (a) Subject to the terms hereof, Mitcham will issue a Purchase Order for 300 levels of VSP
Tools within two weeks of signing this agreement. This PO will be called a Master PO. Subsequently,
Mitcham will issue PO’s which reference the Master PO to draw against the 300 levels. These PO’s
will be called Supply PO’s. In the event that Mitcham does not purchase Products from SERCEL via
Supply PO’s under the Agreement in an amount that satisfies the Minimum Purchase
Requirements (set forth below), at SERCEL’s option but subject to Section 5(c) below, SERCEL may
terminate this Agreement on 30 days written notice; and upon such termination Mitcham shall not be
obligated to purchase any Products other than the Products that it has ordered prior to the
effective date of such termination.



     (b) For purposes hereof, the term “Minimum Purchase Requirement” shall mean Products purchased
and delivered to Mitcham via Supply PO’s from SERCEL as follows:




From July 1, 2009 to December 31, 2009: 100 levels of VSP Tools




From January 1, 2010 to December 31, 2010: 100 levels of VSP Tools




From January 1, 2011 to December 31, 2011: 100 levels of VSP Tools




NOTE: At time of agreement Sercel acknowledges receipt of Purchase Orders for 102
Maxiwave tools and 13 Slimwave tools which order shall be applied towards the Minimum
Purchase Requirement.



     (c) Notwithstanding anything herein to the contrary, in the event that a Minimum Purchase
Requirement is not satisfied by Mitcham in any period ending before December 31, 2011, this
Agreement may not be terminated by SERCEL due to such failure if Mitcham meets the Minimum Purchase
Requirement for the subsequent period (i.e., Mitcham will have one period that equals (1) one year
in which to cure any failure to meet the Minimum Purchase Requirement).



     (d) For purposes of determining whether Mitcham has satisfied the Minimum Purchase
Requirement, Products purchased by Mitcham shall include Products ordered by Mitcham via Supply
PO’s regardless of when such Products are delivered so long as such Products are ordered before 90
days of the end of a period and paid for in accordance with the
terms and conditions set forth in Schedule 3(a). If Mitcham orders within the
specified period



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and SERCEL is not able to deliver due to manufacturing delivery issues, there will
be no penalty against Mitcham and such orders will be applied to satisfy the Minimum Purchase
Requirement. In the event Mitcham purchases more than the Minimum Purchase Requirement in any given
period, such excess shall be applied in meeting the Minimum Purchase Requirement for any subsequent
period.




6. Third Party Replacement Parts. Mitcham shall not order from any third party any
replacement parts for any Products that are not qualified by SERCEL. Any use of replacement parts
that have not been qualified by SERCEL will give SERCEL the right, in any case, to cancel any
warranty remaining on the equipment for which such unqualified parts are used and/or SERCEL shall
be entitled to terminate this Agreement should Mitcham fail to remedy such situation within 10 days
of SERCEL giving notice to Mitcham.




7. Resale of Purchased Equipment by Mitcham. Without SERCEL’s prior written consent,
Mitcham hereby agrees that it will not sell any of the Products purchased under this Agreement
until a period of three (3) years from the date it received the relevant Product. Without limiting
the foregoing, Mitcham may approach SERCEL with a lease to purchase or sales opportunity for
equipment purchased hereunder, and SERCEL may then grant Mitcham the right to pursue that
opportunity. Notwithstanding anything to the contrary contained in this Agreement, Mitcham is not,
in any case, entitled to sell within or outside mainland China any of the Products purchased under
this Agreement to any seismic contractor owned or controlled by Chinese nationals.




8. Provision of Certain Goods and Services by SERCEL. SERCEL hereby agrees that Mitcham
shall have the right to send a reasonable number of its employees and representatives of its
customers who lease the Products from Mitcham to such technical, training, operations and
maintenance classes as SERCEL provides to SERCEL’s customers who lease or purchase the Products
from SERCEL, at SERCEL standard rates. SERCEL will provide Mitcham (4) four free training courses
per year to be used for any of the SERCEL training courses. This does not include the cost of
travel, lodging, food or incidental expenses. As part of this agreement, Mitcham will receive (2)
two “no charge” training courses for each central recording system purchased from Sercel. These
courses may be used for Mitcham employees or lease/rent customers of Mitcham. SERCEL will have no
responsibility for travel, lodging, food or incidental expenses of the Mitcham attendees. SERCEL
hereby agrees to send to Mitcham such quantities of all manuals and selling information, marketing
brochures and literature regarding the Products (other than proprietary information) as SERCEL
develops and as Mitcham shall reasonably request in connection with its Leasing activities, at no
charge to Mitcham. SERCEL’s current training price schedule can be changed any anytime as long as
Mitcham is so notified 30 days in advance: Sercel agrees to supply up to three (3) total TMS units
to be used for the testing and repair of 408UL or 428XL units to Mitcham at a cost of Thirty
thousand five hundred sixty-eight United States Dollars ($30,568.00) per TMS unit. The list price
of this unit, for future reference, is thirty-eight thousand two hundred ten United States Dollars
($38,210.00) per TMS unit.





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9. Warranty and Service.




     (a) SERCEL warrants to Mitcham all of the Products sold by SERCEL to Mitcham are new and are
subject to SERCEL’s standard warranty terms.



     (b) SERCEL makes no warranties or representations whatsoever with respect to any non- SERCEL
products, however, any warranty information from the manufacturers of the non-SERCEL products shall
be passed on to Mitcham.



     (c) The standard SERCEL warranty is given expressly and in lieu of all other express or
implied warranties, including a warranty of merchantability or fitness and in no event shall SERCEL
be liable for consequential damages resulting from the use of any of the Products.



     (d) In no event shall Mitcham have any authority whatsoever, express or implied, to make
warranties other than those provided for herein without prior written permission from the SERCEL.



10. Maintenance and Repair of Leased Equipment.




     (a) Mitcham and Sercel acknowledges that third party lessee of the Products from Mitcham may
return the leased Products directly to SERCEL after the termination of such third party’s leases.
In such event, SERCEL shall perform its standard maintenance check of such Products and inform
Mitcham of any necessary repairs.



     (b) The maintenance checks and the repairs performed by SERCEL on the Products received from
the lessees shall be invoiced by SERCEL to Mitcham at the SERCEL standard price. With respect to
the repair undertaken by SERCEL, Mitcham will be entitled to a five percent (5%) discount on the
repair pricing listed herein on attached Schedule 5(a). Mitcham shall also pay the reasonable and
ordinary freight and storage charges incurred by SERCEL with respect to such Products.



     (c) For any repairs performed by SERCEL, Mitcham shall be entitled to receive 5.0% discount on
the repair price listed herein on attached Schedule 5(a).



     (d) Following such maintenance check and needed repairs, SERCEL shall ship such Products to
Mitcham at Mitcham’s expense to a location designated by Mitcham.



11. Right to Use Name. Mitcham shall have the right during the Term of this Agreement to
(i) identify itself as the exclusive third party lessor of the Exclusive Products, (ii) use all
SERCEL trademarks and tradenames related to the Products that Mitcham leases to third parties in
advertisements and promotional materials; provided, however, that Mitcham shall obtain the prior
written approval of SERCEL to any such advertisements and promotional materials. No rights to
manufacture are granted by this Agreement and such SERCEL trademarks and tradenames related to the
Products are and shall remain the sole and exclusive property of




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SERCEL and Mitcham shall have no rights therein other than as specifically set forth in this
Agreement.




12. Relationship of the Parties. Neither Mitcham nor SERCEL shall have (i) any liability
for leases or sales of any of the Products by the other, or (ii) any authority to control, act for
or obligate the other in any way. This Agreement shall not be construed as creating an agency,
partnership or joint venture between Mitcham and SERCEL. Neither Mitcham nor SERCEL (or any of
their employees or representatives) shall be construed as an agent, consultant or employee of the
other for any purpose. Mitcham shall not have the authority to bind SERCEL in any respect, it being
intended that Mitcham shall act as an independent contractor and not as an agent, with the
understanding that SERCEL shall not be responsible for any obligations and/or liabilities incurred
by Mitcham in connection with its business activities.




13. Term of Agreement. Unless sooner terminated in accordance with the provisions hereof,
this Agreement shall be effective from the Effective Date through December 31, 2011(the “Term”).
This Agreement may only be renewed through written agreement of both Parties.




14. No Effect on Right to Sell.




     (a) This Agreement shall not be construed to have any effect on SERCEL’s rights to sell (as
opposed to lease) its products and services to any party, except that SERCEL shall not knowingly
sell any of the Exclusive Products to any party that will lease the Products in the Territory,
including without limitation Mitcham’s competitors listed on Schedule 2(a).



     (b) This Agreement shall not be construed to have any effect on Mitcham’s rights to sell any
other products or services to any party.



15. Indemnity. SERCEL and Mitcham hereby agree to the following indemnification
obligations:




     (a) Mitcham shall indemnify and hold harmless SERCEL, its directors, officers, employees and
Affiliates (hereinafter the “SERCEL Indemnities”) against any and all liability, loss, damages,
fines, penalties, costs and expenses (including, without limitation, court costs and reasonable
attorneys fees) incurred by any of the SERCEL Indemnities as a result of any breach or violation by
Mitcham or others acting on its behalf of any obligation, covenant, representation or warranty of
Mitcham set forth in this Agreement.



     (b) SERCEL shall indemnify and hold harmless Mitcham, its directors, officers, employees and
Affiliates (hereinafter the “Mitcham Indemnities”) against any and all liability, loss, damages,
fines, penalties, costs and expenses (including, without limitation, court costs and reasonable
attorneys fees) incurred by any of the Mitcham Indemnities (i) as a result of any breach or
violation by SERCEL or others (other than Mitcham) acting on its behalf of any obligation,
covenant, representation or warranty of SERCEL set forth in this Agreement, (ii) that arise out of
or are based upon losses, claims, damages or liabilities suffered by any third parties



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(meaning any party other than Mitcham, SERCEL, Mitcham’s customer and their respective
affiliates) resulting from design, manufacture, and/or operation of any Products, from the failure
of any such Products to satisfy any warranties (whether expressed or implied, if any), or from any
defect in the Products.




     (c) It is expressly acknowledged by Mitcham that all liabilities and indemnification in
relation thereto between SERCEL and Mitcham and Mitcham’s customers, when leasing, renting or
selling Sercel equipment to Mitcham’s customers, will be exclusively governed by SERCEL’s general
conditions of sale as mentioned in Schedule 3(a) of the Agreement.



     (d) Patent infringement. The parties acknowledge that if any Mitcham customer issues a claim
against Mitcham or Sercel on the basis that the Products are infringing a third party valid and
enforceable patent, Sercel agrees to do its best efforts to protect its patents and shall be
responsible for the compensation regarding that claim under the conditions hereunder defined.
Without limiting the foregoing, if a final injunction is, or Sercel believes, in its sole
discretion, is likely to be, entered, prohibiting the use of Products by Mitcham’s customers,
Sercel will, at its sole option and expense, either: (a) procure for Mitcham or its clients the
right to use the relevant Products herein, or (b) replace the infringing Products with
non-infringing, functionally equivalent products, or (c) suitably modify the Products so that they
are not infringing; or, (d) in the event (a), (b) and (c) are not commercially reasonable, refund
to Mitcham the infringing Products at a price which is the purchase price less depreciation based
on five (5) years straight-lined depreciation). Except as specified above, Sercel will not be
liable for any costs or expenses incurred without its prior written authorization. Notwithstanding
the foregoing, Sercel assumes no liability for infringement claims arising from (i) combination of
the Products with other products not provided by Sercel, ( ii) any modifications to the Products
unless such modification was made by Sercel or, (iii) any part or component supplied by third
party. The liability that Sercel may incur with respect to any infringement claim is expressly
limited to 100% of the amount Mitcham paid as purchase price of the Products.



     (e) Either party seeking indemnification hereunder shall notify the other party in writing of
any legal action commenced against SERCEL Indemnities or the Mitcham Indemnities, as the case may
be, as soon as practicable. The indemnity obligations of Mitcham and SERCEL shall survive the
expiration or termination of the Agreement.



     (f) In no event will SERCEL be liable to Mitcham, whether in contract or tort including
negligence, under this Agreement as amended for special, incidental, indirect or consequential
damages, nor any other losses or damages whatsoever resulting from loss of use, time, profits or
business resulting from its performance or non–performance, or its termination of this Agreement
as amended in accordance with the terms of this Agreement.



16. General.




     (a) The addresses of Mitcham and SERCEL for purposes of giving any notice or other
communication under this Agreement are as set forth below. Any such notice or



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communication shall be in writing and signed by an officer or authorized representative of
Mitcham or SERCEL, as applicable. Any such notice or communication shall be deemed to have been
given (i) immediately upon physical delivery to the addressee, or (ii) three days after such notice
or communication has been deposited in the United States mail, addressed as set forth below,
first-class postage prepaid, certified mail, return receipt requested.




	 	 	 	 	 
	 

	 	Mitcham:
	 	Mitcham Industries, Inc.
	 

	 	 	 	P. O. Box 1175
	 

	 	 	 	Huntsville, Texas 77342-1175
	 

	 	 	 	Attn: Billy F. Mitcham, Jr.
	 
	 	 	 	 
	 

	 	SERCEL:
	 	SERCEL Incorporated
	 

	 	 	 	17200 Park Row
	 

	 	 	 	Houston, Texas 77084
	 

	 	 	 	Attn: Mark Farine






Notice may be served in any other manner, including telex, telecopy, telegram, etc., but shall be
deemed delivered and effective as of the time of actual delivery.




     (b) Mitcham and SERCEL represent and warrant to each other that the execution, delivery and
performance of this Agreement have been authorized by all necessary corporate action, and that this
Agreement is a valid and binding obligation of each of them, respectively. Mitcham and SERCEL
represent and warrant to each other that, to the best of their knowledge, neither the execution and
delivery nor the performance of this Agreement will conflict with or result in a breach of any (i)
law or of any regulation, order, writ, injunction, or decree of any court or government authority
of any country or state in which this Agreement is to be performed, or (ii) any agreement to which
they are a party.



     (c) This Agreement represents the entire agreement between Mitcham and SERCEL with regard to
the subject matter hereof, and supersedes all prior or contemporaneous agreements, understandings
or arrangements related to the subject matter hereof, including without limitation the Exclusive
Lease Agreement between the parties dated June 1 2006 as amended and extended. This Agreement may
not be amended or modified except by a written document signed by duly authorized officers of
Mitcham and SERCEL.



     (d) This Agreement may not be assigned by either party hereto without the prior written
consent of the other party. This Agreement shall bind and be enforceable against the parties
hereto and their respective successors and permitted assigns. Notwithstanding such authorized
assignment, Mitcham shall continue to be liable for all obligations of Mitcham set forth in this
Agreement.



     (e) In the event Billy F. Mitcham, Jr. is no longer employed by Mitcham in a senior management
capacity or is considered by Sercel to be not sufficiently and actively involved in



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the performance of this Agreement, SERCEL shall have the option upon 30 days written notice to
terminate this Agreement.




17. Compliance with Laws. In all of its activities pursuant to this Agreement, Mitcham and
SERCEL shall comply with all laws, decrees, statutes, rules, regulations, codes and ordinances of
any jurisdiction which may be applicable to such activities, including without limitation, laws
imposing registration and disclosure requirements on Mitcham; provided, however, insignificant
violations of any of the foregoing that have no more than a minimal effect on Mitcham or SERCEL
shall not be a violation of this Agreement. In leasing the Products hereunder, Mitcham shall act
at all times in a manner demonstrating a high level of integrity and ethical standards. Without
limiting the scope of its general obligations set forth above this section, Mitcham hereby
represents and warrants to SERCEL in connection with its activities performed with regard to the
Products in the past (if any), and hereby covenants and agrees with SERCEL in connection with its
activities to be performed in connection with the Products in the future, that Mitcham and any
person or firm acting in association with or on behalf of Mitcham:





	 	(a)	 	has not offered, paid, given, promised to pay or give, or authorized the
payment or gift of, and
	 
	 	(b)	 	will not offer, pay, promise to pay or give, or authorize the payment or gift
of,
	 
	 	(c)	 	any money or thing of value to:






	 	(i)	 	any “Foreign Official” as defined in the United States Foreign
Corrupt Practices Act (Pub. L. No. 95-213, 94 Stat. 1494), together with all
amendments to that Act which are effective during the term hereof (the “FCPA”)
	 
	 	(ii)	 	any political party or party official, or any candidate for
political office; or
	 
	 	(iii)	 	any other person for the purpose of (A) influencing any act or
decision of such Foreign Official, political party, party official, or
candidate in his or its official capacity, (B) inducing such Foreign Official,
political party, party official or candidate to do or omit to do an act in his
violation of his or its official duty; or (C) Inducing such Foreign Official,
political party, party official or candidate to use his or its influence with a
foreign government or an instrumentality of such government to affect or
influence any act or decision of such government or instrumentality in order to
assist SERCEL to obtain or retain business with any person or to direct
business to any person.





     Further, Mitcham hereby represents and warrants to SERCEL that no person having a direct or
indirect financial interest in Mitcham as of the date hereof is: (i) a Foreign Official, (ii) an
official of any political party, or (iii) a candidate for political office; provided, however, for



Page 12 of 20









 





purposes hereof, a person shall not be deemed to have a direct or indirect financial interest
in Mitcham as a result of owning less than (5%) of the outstanding shares of common stock of
Mitcham. In connection with determining whether a person owns five percent (5%) or more of the
stock, Mitcham shall be permitted to rely upon filings made by its shareholders under the
Securities Exchange Act of 1934, as amended, or filings made under other applicable federal
securities laws. Mitcham shall immediately notify SERCEL in the event that any person now or
hereafter having such a financial interest in Mitcham shall assume such a status.




     From time to time as requested by SERCEL, Mitcham shall, within five (5) days after request
from SERCEL, certify to SERCEL in writing that the obligations, representations and warranties of
Mitcham set forth in this Section have not been violated. SERCEL shall not be permitted to request
such certification more often than once each calendar quarter unless it has reason to believe a
violation has occurred. Mitcham shall cooperate fully with any investigation which may be
conducted by representatives of SERCEL for the purpose of determining whether or not Mitcham has
violated any of those obligations, representations and warranties. In the event that amendments in
the FCPA reasonably necessitate modifications to this Section 17, the parties hereto agree to
negotiate in good faith in connection therewith and enter into such modifications.



18. Mitcham Undertakings. Mitcham hereby agrees:





	 	(a)	 	To use its commercially reasonable best efforts to actively promote and solicit
the leasing of the Products.
	 
	 	(b)	 	To participate in training programs that may be offered by SERCEL or by others
relating to the Products.
	 
	 	(c)	 	To obtain approval of SERCEL prior to the commencement of any advertising
relating to the lease of the Products which advertising has not been previously
approved by SERCEL.
	 
	 	(d)	 	Not knowingly to lease the Products to companies or countries that are
precluded by United States law from trading with the United State or its residents and,
to make reasonable inquiry in connection therewith, including inserting provisions in
the leases with their customers that are reasonably intended to keep Mitcham’s
customers from using the Products in the countries in which United States law prohibits
the use of the Products.
	 
	 	(e)	 	To make all reasonable effort to use the distributors described on Schedule
4(a)  and that have been designated by SERCEL in locations outside of the United
States or Canada so as to minimize conflicts between distributors, except in India
where Mitcham currently has an agent in such country. However, if conflicts arise as a
result of multiple distributors, both parties will make a reasonable attempt to use the
same distributor.




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	 	(f)	 	To use commercially reasonable efforts to continue to maintain an organization
commensurate with the growth of leasing of the Products.
	 
	 	(g)	 	To return to SERCEL on termination of this Agreement any and all catalogs,
samples, price lists, and any other data, information and/or supplies or materials
furnished by SERCEL which are in the possession of Mitcham or any of its employees,
agents, representatives or consultants.
	 
	 	(h)	 	Not to alter, hide nor secrete SERCEL’s name on any of the Products or on any
sales promotion material furnished by SERCEL.





19. SERCEL’s Undertakings. SERCEL hereby agrees:





	 	(a)	 	To cooperate with Mitcham in joint marketing programs for the Products.
	 
	 	(b)	 	Upon request by Mitcham, to notify SERCEL’s affiliates, distributors and
employees regarding Mitcham’s exclusive leasing rights for the Products under this
Agreement and to instruct those affiliates, agents and employees to cooperate with
Mitcham in the exercise of its exclusive rights hereunder.
	 
	 	(c)	 	At its sole discretion and option, to invite Mitcham to meetings in order to
joint market the Products.
	 
	 	(d)	 	To provide such reasonable support and technical services for the Products as
Mitcham may reasonably request from time to time and at Mitcham obligation as per
Sercel’s current price list for said support and technical services without any
discount.
	 
	 	(e)	 	To honor all of SERCEL’s manufacturer warranties in accordance with SERCEL’s
standard warranty terms and conditions for the Products leased by Mitcham.
	 
	 	(f)	 	To provide Mitcham with the right to transfer licenses to use SERCEL software
to customers solely in connection with the use of the Products.
	 
	 	(g)	 	To provide Mitcham with the right to transfer the SERCEL manufacturer’s
warranties in connection with any lease, or lease to purchase of the Products.
	 
	 	(h)	 	Not to grant to any competitor of Mitcham, as listed in Schedule 2(a),
with more favorable terms or rights than provided Mitcham within the terms and
conditions of this Agreement.




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20. Purchase Order Acceptance and Payment.




     (a) All sales of the Products are subject to SERCEL’s standard conditions of sale, however,
SERCEL reserves the right to, at any time, change, alter or amend these conditions by giving prior
written notice to Mitcham.



     (b) Mitcham shall confirm with SERCEL all relevant delivery information prior to submission of
a purchase order for any of the Products.



     (c) Upon receiving purchase order from Mitcham, SERCEL shall confirm delivery date with formal
acceptance or order acknowledgment.



     (d) SERCEL shall have the right to reject, in whole or in part, any purchase order from
Mitcham, to refuse in whole or part, to consent to any cancellation requested by Mitcham, and to
reject in whole or part, any and all returns of the Products or to refuse to grant refunds or
allowances on such returns, based upon reasonable grounds. Any Purchase Order shall be binding on
SERCEL only upon receipt by Mitcham of a SERCEL’s formal acceptance or acknowledgement of order.



     (e) All sales by SERCEL to Mitcham shall be payable in U.S. dollars net thirty (30) days from
the date of the invoice. Continued late payment could result in Sercel termination of this
agreement.



     (f) If SERCEL agrees to modify, alter or amend any of the payment terms contained herein in
order to meet the requirements of a specific transaction, such deviation from the provisions of
this Agreement shall not be construed as a permanent modification, alteration or amendment of the
payment terms nor shall the same be used to establish a precedent for future transactions.



21. Confidential Information. Mitcham agrees that it will maintain in strict confidence,
and not disclose to any other person or firm except with the prior written permission of an
authorized officer of SERCEL, any and all information received from SERCEL or prepared by Mitcham
for SERCEL regarding prices, customer lists, business plans, strategies, forecasts, studies,
reports and any other information which may be considered confidential or proprietary by SERCEL and
which is not publicly available. The confidentiality obligation of Mitcham under this Section 21
shall survive the expiration or termination of this Agreement. In the event that Mitcham receives
a request to disclose all or any part of the confidential information under terms of a subpoena or
order issued by a court or by a governmental body, Mitcham agrees (i) to notify SERCEL immediately
of the existence, terms, and circumstances surrounding such request, (ii) to consult with SERCEL on
the advisability of taking legally available steps to resist or narrow such request, and (iii) if
disclosure of such information is required to prevent Mitcham from being held in contempt or
subject to other penalty, to furnish only such portion of the information as, in the written
opinion of counsel reasonably satisfactory to SERCEL, it is legally compelled to disclose and to
exercise its best efforts to obtain an order or other reliable assurance that confidential
treatment will be accorded to the disclosed information. The provisions of this




Page 15 of 20









 








Section are mandatory, Mitcham hereby acknowledges that the provisions of this Agreement may be
specifically performed and enforced, and Mitcham consents and agrees that it may be restrained,
enjoined or otherwise prevented from divulging any such confidential information if at any time
SERCEL reasonably fears that such event may occur.




22. Force Majeure. All transactions under this Agreement and all purchase orders accepted
hereunder are subject to modification or cancellation in the event of strikes, labor disputes,
lock-outs, accidents, fires, delays in manufacturing or in transportation or delivery of materials,
floods severe weather or other acts of God, embargoes, governmental actions, or any other cause
beyond the reasonable control of the party concerned, whether similar to or different from the
causes above enumerated; and including any special, indirect, incidental, or consequential damages
arising from SERCEL’S delay in delivery or failure to deliver as a result of any such cause.




23. Security Interests. Until full payment of the purchase price for a Product, SERCEL
hereby retains, and Mitcham hereby grants to SERCEL, a purchase money security interest in that
Product sold to Mitcham on account. Mitcham consents to actions by SERCEL that are appropriate to
perfect SERCEL’S purchase money security interest and agree to execute such financing statements as
are reasonably requested by SERCEL in connection with the foregoing.




24. Termination.





	 	(a)	 	This Agreement may be terminated at any time:






	 	(i)	 	by the mutual agreement of the parties; or
	 
	 	(ii)	 	by either party upon giving a notice of termination to the
other party in the event the other party fails to perform, observe or comply
with any of the obligations or under-takings of such other party which are
contained in this Agreement, and such failure has not been cured within fifteen
(15) days after the terminating party has given a written notice specifying
such failure to the other party.





     (b) In addition, SERCEL shall be entitled to immediately terminate this Agreement effective
upon the giving of notice to Mitcham in the event that: (i) SERCEL has reasonable cause to believe
that Mitcham or others acting in association with or on the behalf of Mitcham have committed, or
intend to commit, a violation of the FCPA; (ii) Mitcham refuses or is unable to make the
certification described in Section 17; (iii) Mitcham ceases doing business as a going concern,
makes an assignment for the benefit of creditors, admits in writing its inability to pay its debts
as they become due or such fact is determined by judicial proceedings, files a voluntary petition
in bankruptcy, is adjusted a bankrupt or an Insolvent entity, files a petition seeking for itself
any reorganization, rearrangement, composition, readjustment, liquidation, dissolution, or similar
arrangement under any present or future statute, law or regulation, or files an answer admitting
the material allegations of a petition filed against it in any such proceedings, consents




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to or acquiesces in the appointment of a trustee, receiver, or liquidator of, all or any substantial part
of its assets or properties, or if it or the holders of its common stock shall take any action
contemplating its dissolution or liquidation. In such event, SERCEL shall have no further
liability to Mitcham under this Agreement.



     (c) Upon the termination of this Agreement in accordance with the terms hereof, neither party
shall have any further liability to the other party under this Agreement except for obligations and
liabilities arising or related to events or circumstances prior to the effective date of
termination.



     (d) Notwithstanding the foregoing, it is expressly acknowledged between the Parties that the
modification, amendment or termination of this Agreement by SERCEL in accordance with the terms of
this Agreement, or the non renewal of this Agreement, will not entitle Mitcham to claim for any
damage, penalty or indemnity whatsoever.



25. Arbitration. All disputes involving this Agreement shall be submitted to an arbitrator
appointed by, and operating under, the rules of the Judicial Arbitration and Mediation Service
(“JAMS”). The choice of the individual arbitrator shall be upon mutual agreement of SERCEL and
Mitcham, and the parties agree to negotiate in good faith in connection with the selection of the
individual arbitrator. The written decision of the arbitrator shall be final and binding upon all
parties, and shall be convertible to a court judgment in the State of Texas. The arbitration shall
take place in the State of Texas. The prevailing party as determined by the arbitrator shall be
entitled to receive reasonable costs and reasonable attorney’s fees from the non-prevailing party
in addition to any other relief granted. No demand for arbitration shall be made after the date
when the institution of a legal or equitable proceeding based upon the claim or dispute would be
barred by the applicable statute of limitations of the State of Texas. All demands for arbitration
shall be made in accordance with Section 16a and shall be deemed made as of the sooner of actual
receipt or the date the demand is placed in the United States Mail. Any party shall be entitled to
file a lawsuit to specifically enforce the parties’ agreement to arbitrate and for the purpose of
obtaining injunctive relief to enforce this Agreement.




26. Applicable Law. This Agreement shall be governed by the laws of the United States of
America and the State of Texas.




27. Export Control Laws. Any shipments made by SERCEL to Mitcham or third parties shall at
all times be subject to the export control laws and regulations of the United States of America, as
such laws shall be amended from time to time. Mitcham agrees that it shall not assist in the
disposition of U.S. origin SERCEL Products, by way of transshipment, re-export, and diversion or
otherwise, except as said laws and regulations may expressly permit.




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28. Standard of Business Conduct. Mitcham agrees not to pay any commissions, fees or grant
any rebates to any employee or officer of any proposed customer or its Affiliates or favor
employees or officers of such proposed customer with gifts or entertainment of significant costs or
value or enter into any business arrangements with employees or officers of any such proposed
customer, other than as a representative of that proposed customer, without the proposed customer’s
prior written approval.




29. Waiver. The failure of a party to insist upon strict performance of any provision of
this Agreement shall not constitute a waiver of, or estoppel against asserting, the right to
require performance in the future. A waiver or estoppel in any one instance shall not constitute a
waiver or estoppel with respect to a later breach.




30. Severability. If any of the terms and conditions of this Agreement are held by any
court of competent jurisdiction to contravene, or to be invalid under, the laws of any political
body having jurisdiction over the subject matter hereof, such contravention or invalidity shall not
invalidate the entire Agreement. Instead, this Agreement shall be construed by reforming the
particular offending provision or provisions held to be invalid so that it or they are valid and
enforceable while remaining as faithful as possible to the or intent of the provision or
provisions, the rights and obligations of the parties shall be construed and enforced accordingly,
and this Agreement shall remain in full force and effect.




31. Construction. The headings in this Agreement are inserted for convenience and
identification only and are not intended to describe, interpret, define, or limit the scope,
extent, or intent of this Agreement or any other provision hereof. Whenever the context requires,
the gender of all words used in this Agreement shall include masculine, feminine, and neuter, and
the number of all words shall include the singular and the plural.




32. Counterpart Execution. This Agreement may be executed in any number of counterparts
with the same effect as if all the parties had signed the same document. Any counterparts shall be
construed together and shall constitute one and the same instrument.




33. Cumulative Rights. The rights and remedies provided by this Agreement are cumulative,
and the use of any right or remedy by any part shall not preclude or waive its right to use any or
all other remedies. These rights and remedies are given in addition to any other rights a party
may have by law, statute, in equity or otherwise.




Page 18 of 20









 








34. Reliance. All factual recitals, covenants, agreements, representations and warranties
made herein shall be deemed to have been relied on by the parties in entering into this Agreement.




35. No Third Party Beneficiary. Any Agreement herein contained, express or implied, shall
be only for the benefit of the undersigned parties and their permitted successors and assigns, and
such agreements and assumption shall not inure to the benefit of the obligees of any other party,
whomsoever, it being the intention of the undersigned that no one shall be deemed to be a third
party beneficiary of this Agreement.




36. Drafting Party. This Agreement expresses the mutual intent of the parties to this
Agreement. According, regardless of the preparing party, the rule of construction against the
drafting party shall have no appreciation to this Agreement.




37. Time is of the Essence. Time is of the essence with respect to all provisions of this
Agreement.




38. Survival. Articles 15, 21, 23, 24, 25, 26 and 38 of the Agreement shall survive
expiration or termination of this Agreement for whatever reason.




39. Incorporation of Schedules. All schedules attached to this Agreement are incorporated
into this Agreement as fully as if stated within the body of this Agreement.




40. MOST FAVORED LEASING AGENT/SUPPLIER STATUS




     (a) Most favored leasing agent status. In consideration of the above understandings and of
compliance by MITCHAM of its obligation under Section 4, Sercel shall grant Mitcham the status of the “most favored leasing agent” for Sercel’s: Land acquisition systems and products
including 408UL, 408ULS, 428XL, Unite, vibrators, vibrator controls, geophone sensors, hydrophone
sensors, and all other related 408 and 428 land conventional and multicomponent equipment including
the DSU3 products; Marine acquisition systems and products including Seal, SeaRay, G Guns; VSP
Tools including SlimWave, GeoWaves, MaxiWave and will provide Mitcham with the best competitive
offer taking into account, the current and domestic prevailing market conditions, the quantities,
the delivery times, the support services required, and the fact that the relevant equipment is
purchased. This offer will include the best available pricing that is at least as favorable as that
made available by Sercel to any of its customers.



Page 19 of 20









 





     (b) Most favored supplier status. In consideration of Sercel’s commitments under this
Agreement, Mitcham shall grant Sercel the status of the “most preferred supplier” for the supply of
any conventional or multi-component land acquisition, marine acquisition or transition zone
equipment. Such equipment shall include, but is not limited to conventional land acquisition
systems, transition zone acquisition systems, geophone sensors, hydrophone sensors, digital
sensors, VSP tools, vibrators, vibrator control systems and G Guns. Mitcham shall use its
commercially reasonable best efforts to purchase all such equipment from Sercel and not from other
suppliers. Should Mitcham seek to purchase comparable equipment from another supplier, it will
first provide Sercel with reasonable prior notice. Such notice will specify the equipment required,
the quantity required, the delivery period and the country of delivery. Sercel will then be
provided the opportunity to provide a proposal for such equipment within fifteen (15) business
days. Should Sercel not provide a proposal within the time frame required, or should Mitcham
determine that Sercel’s proposal is not competitive in terms of price, quality, support services,
delivery dates, technical specifications or commercially viable, Mitcham shall be free to purchase
such equipment from another supplier.



IN WITNESS WHEREOF, This Agreement has been executed on behalf of the parties by their duly
authorized representative as of the date first written above.




	 	 	 	 	 
	 	SERCEL Inc.

 	 
	 	By:  	/s/ Mark Farine
 	 
	 	 	Mark Farine 	 
	 	 	 	 
	 
	 	MITCHAM INDUSTRIES, INC.

 	 
	 	By:  	/s/ Billy F. Mitcham, Jr.
 	 
	 	 	Billy F. Mitcham, Jr., President 	 
	 	 	 	 




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