EXHIBIT 10.1
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT is made effective as of
the 1st day of April, 2000, by and between Seitel, Inc., a Delaware corporation
(hereinafter called the "Company"), and Xxxxxx X. Xxxxxxx (hereinafter called
"Employee");
W I T N E S S E T H:
WHEREAS, effective January 1, 1991, the Company and Employee entered
into an Employment Agreement, as amended effective January 1, 1998 (the "Prior
Agreement") under which Employee would be employed by the Company for a five
year term, as automatically extended annually; and
WHEREAS, the parties to said Prior Agreement desire to completely
amend, restate and supersede said Prior Agreement to provide for the employment
of Employee on different terms in a capacity through May 31, 2004; and
WHEREAS, Section 17(b) of the Prior Agreement contemplates the
amendment of the Prior Agreement with the mutual written consent of the parties.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained including, without limitation, Employee's agreement to sign a
Waiver and Release of claims as provided in Paragraph 1, the parties hereto
agree that the Prior Agreement shall be amended and restated in its entirety,
effective April 1, 2000, to read as follows:
1. Release. Except as provided in this Agreement, employee agrees to
release and forever discharge the Company, DDD Energy, their officers,
directors, agents, servants, and employees, their successors, assigns, and
insurers and their parents, subsidiaries and affiliates, and any and all other
persons, firms, organizations, and corporations from any and all damage, losses,
causes of action, expenses, demands, liabilities, and claims on behalf of
Employee, Employee's heirs, executors, administrators, and assigns with respect
to all matters relating to the Company and to DDD Energy (including, without
limitation, the Prior Agreement) and Employee hereby accepts the salary,
benefits, and other items described herein in full settlement of all such
damages, losses, causes of action, expenses, demands, liabilities, and claims
Employee now has or may have with respect to such matters. Employee acknowledges
and agrees that a substantial portion of the consideration provided in this
Agreement is in addition to, separate and apart from any consideration to which
Employee is otherwise entitled.
This release includes, but is not limited to, claims arising under the
Age Discrimination in Employment Act, the Older Workers' Benefit Protection Act,
Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act,
the Family and Medical Leave Act, the Texas Labor Code, any state or federal
statute, regulation or common law pertaining to "whistleblowers," claims for
breach of contract, tort or personal injury of any sort, and any claim under any
other state or federal statute or regulation, in equity or at common law.
Further, by accepting the salary compensation described in Paragraph 3, Employee
agrees (except as provided in Paragraph 18) not to xxx the Company, DDD Energy
or the related persons and entities described above. Employee agrees that this
Agreement is valid, fair, adequate and reasonable, was entered into with
Employee's full knowledge and consent, and was not procured through fraud,
duress or mistake. Employee shall have twenty-one (21) days to decide whether to
sign this Agreement and be bound by its terms. Employee shall have the right to
revoke or cancel it within seven (7) days after Employee has signed it. This
cancellation or revocation can be accomplished by delivery of a written
notification to the Chief Executive Officer of the Company. In the event that
this Agreement is canceled or revoked, the Company shall have no obligation to
furnish the payments and benefits described herein, except for accrued salary,
any rights to the Company's 401(k) Plan and stock options and warrants that are
vested as of the date of the cancellation or revocation. Employee acknowledges
that Employee has been advised in writing to consult with an attorney prior to
signing this Agreement and has had an adequate opportunity to seek advice of
Employee's own choosing. Employee acknowledges that Employee has read this
Agreement, has had an opportunity to ask questions and have it explained and
that Employee understands that the Agreement will have the effect of knowingly
and voluntarily waiving any action Employee might pursue, including breach of
contract, personal injury, retaliation, discrimination on the basis of race,
age, sex, national origin, or disability and any other claims arising prior to
the date of the Agreement.
2. Employment; Employment Term. The Company hereby agrees to continue
Employee in its employ, and Employee agrees to remain in the employ of the
Company effective as of the date hereof. Effective May 31, 2000, Employee shall
resign as a member of the Board of Directors of the Company, including any
position with any committee thereof, and shall relinquish the titles and offices
of Chief Operating Officer and Executive Vice-President of the Company and as
President and Chief Executive Officer of DDD Energy, along with any and all
other positions with the Company (except as otherwise provided in this Paragraph
2), DDD Energy and any related entities and shall continue to be employed as
Counselor to the Chief Executive Officer of the Company for the Employment Term
(as defined below) with such duties and responsibilities as may be assigned to
Employee from time to time by Xxxx Xxxxx. The term of employment under this
Agreement shall commence upon the date hereof and shall expire on the close of
business on May 31, 2004, unless, in either case, employment is sooner
terminated under Paragraph 11 ("Employment Term"). The employment of Employee
shall be subject to the other terms and conditions of this Agreement.
3. Salary Compensation. Effective as of the date hereof as an
inducement to restructure the Prior Agreement, Employee shall receive the excess
of one-half of one percent of second quarter 2000 revenues and two percent of
second quarter 2000 pre-tax profits in excess of $212,500. Effective July 1,
2000, and for the remainder of the Employment Term, the Company hereby agrees to
pay as current salary compensation to Employee $850,000 on an annualized basis
but payable in semi-monthly installments subject to applicable tax withholding
obligations; provided, however, that if Employee accepts a position with Vision
Energy in the event of an underwritten public offering of common stock pursuant
to a registration statement filed with the Securities and Exchange Commission,
any monetary compensation Employee receives from Vision Energy will be applied
as an offset to the remaining semi-monthly installments otherwise payable under
this Paragraph 3.
4. Stock Options. Employee's stock options shall remain subject to
the terms and conditions of the applicable stock option plans and related stock
option agreements.
5. Warrants. Employee's warrants shall remain subject to the terms
and conditions set forth in the certificate of warrant and any applicable
agreement and/or plan.
6. Salary Continuation Benefits. The Company will pay, so long as
this Agreement is in full force and effect on the date of Employee's death, the
remainder, if any, of the salary compensation payable under Paragraph 3 of this
Agreement to Employee's estate or his designee.
7. Deferred Compensation Program. Employee is entitled to
Employee's deferred compensation vested as of May 31, 2000 payable in accordance
with the terms of the Deferred Compensation Program.
8. Savings Plan. Employee shall continue to participate in the Seitel,
Inc. 401(k) Plan on the same terms and conditions as are applicable to other
salaried employees of the Company.
9. Welfare Benefits. Except as is specifically provided in this
Agreement to the contrary, in accordance with the terms and conditions of the
medical, dental and other welfare benefit plans in which Employee participated
as of May 31, 2000 ("Welfare Plans"), Employee will be permitted to continue to
participate in such Welfare Plans for the Employment Term subject to the
Company's right, in its sole discretion, to change or discontinue any or all of
the Welfare Plans, in whole or in part, at any time.
10. Benefits Under All Other Agreements, Arrangements, and Plans.
Employee hereby agrees that the benefits, payments and other items described in
this Agreement supersede, replace, and are in lieu of any and all benefits,
payments or other items that may have been due to Employee under any other
agreements (including, but not limited to the Prior Agreement), arrangements or
plans with, or of, the Company, except as otherwise provided herein.
11. Termination of Employment.
(a) By the Company for Due Cause.
Nothing herein shall prevent the Company from terminating
Employee for Due Cause in which event the Employment Term shall
end and Employee shall continue to receive salary and benefit
coverages provided for in this Agreement only through the period
ending with the date of such termination as provided in this
Paragraph 11(a). Any other rights and benefits Employee may have
under other employee benefit plans and programs of the Company,
generally, shall be determined in accordance with the terms of
such plans and programs. The term "Due Cause" as used herein,
shall mean (x) Employee has committed a willful serious act, such
as embezzlement, against the Company intending to enrich himself
at the expense of the Company or has been convicted of a felony
involving moral turpitude or (y) Employee, in carrying out his
duties hereunder, has been guilty of (i) willful, gross neglect
or (ii) willful, gross misconduct resulting in either case in
material harm to the Company.
(b) By Company Other Than For Due Cause. If Employee's
employment under this Agreement is terminated by the Company
for any reason other than as provided in Paragraph 11(a)
hereof, the Company shall (i) pay to Employee in a lump sum
amount the amount of annualized salary compensation that
would have been paid to Employee under Paragraph 3 for the
remainder of the Employment Term, (ii) permit Employee and
Employee's dependents continued participation in Company
medical plans previously available to Employee for the
remainder of the Employment Term.
(c) By Employee. Employee may terminate his employment and the
Employment Term under this Agreement by providing 30 days
written notice to the Company in which event Employee shall
be entitled only to those benefits as are specifically
provided under the terms of a particular benefit plan or
program, and salary payments under Paragraph 3 shall
immediately cease.
(d) By Death or Disability. In the event of the death of
Employee during the Employment Term, salary continuation
benefits shall be paid pursuant to Paragraph 6 of this
Agreement. In the event of the death or Disability of
Employee during the Employment Term, the policies and plans
of the Company applicable to Employee shall govern all
payments to be made to Employee or to his estate or
beneficiaries, and this Agreement shall terminate. For
purposes of this Agreement, "Disability" means that Employee
is unable to perform his duties under this Agreement for 120
consecutive days, or 180 days during any twelve month
period. The date of termination due to Disability shall be
the date Employee elects to terminate service due to
Disability or, if earlier, the date the Board determines
that Employee has met the definition of Disability.
12. Confidentiality Agreement Employee recognizes and acknowledges
that Employee will continue during the Employment Term to have access to secret,
confidential and proprietary information, the disclosure of which could be
harmful to the interests of the Company and DDD Energy. Employee acknowledges
and agrees that Employee will take appropriate precautions to safeguard such
information and to hold in strict confidence all such information that is now or
later comes into Employee's possession, knowledge or control. Confidential and
proprietary information shall not include information that is in the public
domain through no act or omission by Employee or that Employee is authorized to
disclose. Employee acknowledges and agrees that this promise of confidentiality
shall survive after the expiration of the Employment Term.
13. Noncompetition Agreement. In consideration of the foregoing,
Employee hereby agrees that, during the period commencing as of the last day of
the Employment Term (the "Termination Date") and ending as of the first
anniversary of the Termination Date, in the areas within a 200 mile radius of
(i) Houston, Texas, (ii) New Orleans, Louisiana, or (iii) any other city in
which the Company has an office on the Termination Date, and for businesses
related to the oil and gas industry (the "Relevant Geographic Area") Employee
will not (a) accept employment or render service to any person that is engaged
in a business directly competitive with the business then engaged in by the
Company or any of its affiliates, (b) enter into or take part in or lend
Employee's name as principal, director, officer, executive, independent
contractor, partner or advisor, or accept employment for any purpose that would
be competitive with the business of the Company or any of its affiliates or (c)
ending as of the second anniversary of the Termination Date, directly or
indirectly, solicit or induce, or attempt to solicit or induce, any employee to
leave the Company for any reason whatsoever (all of the foregoing activities are
collectively referred to as the "Prohibited Activity"); provided, however,
Employee may serve as a director of a business that is competitive with the
Company in the Relevant Geographic Area, if Employee and such business agree
that Employee cannot and will not act as a director or otherwise advise that
business on any matter involving the Relevant Geographic Area.
It shall not be considered a violation of this Agreement for Employee
to be a passive investor in any enterprise that might be viewed as a competitor
of the Company.
In addition to all other remedies at law or in equity which the Company
may have for breach of a provision of this Paragraph 13, it is agreed that in
the event of any breach or attempted or threatened breach of any such provision,
the Company shall be entitled, upon application to any court of proper
jurisdiction, to a temporary restraining order or preliminary injunction
(without the necessity of (i) proving irreparable harm, (ii) establishing that
monetary damages are inadequate or (iii) posting any bond with respect thereto)
against Employee prohibiting such breach or attempted or threatened breach by
proving only the existence of such breach or attempted or threatened breach. If
the provisions of this Paragraph 13 should ever be deemed to exceed the time,
geographic or occupational limitations permitted by the applicable law, Employee
and the Company agree that such provisions shall be and are hereby reformed to
the maximum time, geographic or occupational limitations permitted by the
applicable law.
Employee acknowledges, agrees and stipulates that: (i) the terms and
provisions of this agreement are reasonable and constitute an otherwise
enforceable agreement to which the terms and provisions of this Paragraph 13 are
ancillary or a part of as contemplated by TEX. BUS. & COM. CODE XXX. xx.xx.
15.50-15.52, or any successor provisions; (ii) the consideration provided by the
Company under this agreement is not illusory; and (iii) the consideration given
by the Company under this agreement gives rise to the Company's interest in
restraining and prohibiting Employee from engaging in the Prohibited Activity
within the Relevant Geographic Area as provided under this Paragraph 13, and
Employee's covenant not to engage in the Prohibited Activity within the Relevant
Geographic Area pursuant to this Paragraph 13 is designed to enforce Employee's
consideration (or return promises). Moreover, Employee agrees and acknowledges
that Employee's providing services in the Relevant Geographic Area for a
competitor of the Company would be detrimental to the Company and, consequently,
acknowledges that the geographic and business parameters of Employee's agreement
not to compete are justified and not overly broad.
If the Company initiates a judicial proceeding against Employee to
enforce this Paragraph 13 and the Company does not prevail in whole or part, the
Company shall pay Employee's reasonable attorney's fees.
14. Prohibition Against Assignment. The right of Employee to benefits
under this Agreement shall not be assigned, transferred, pledged or encumbered
in any way, and any attempt at assignment, transfer, pledge, encumbrance or
other disposition of such benefits shall be null and void and without effect.
15. Binding Effect. This Agreement shall be binding upon and
enure to the benefit of the Company, its successors and assigns, and Employee,
his heirs, executors, administrators and legal representatives.
16. Entire Agreement. This Agreement constitutes the entire
understanding between the parties hereto with respect to the subject matter
hereof, and may be modified only by a writing executed by the parties hereto.
The waiver by either party to this Agreement of a breach of any provision
thereof by the other party shall not operate or be construed as a waiver of any
subsequent breach of such party.
17. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Texas.
18. Resolution of Disputes.
(a) All controversies and claims arising under or in connection
with this Agreement or relating to the interpretation,
breach or enforcement thereof or of the agreements
referenced herein, and all other disputes between the
parties, shall at the election of Employee or the Company,
be resolved by expedited, binding arbitration, to be held in
Houston, Texas in accordance with the rules and procedures
of the American Arbitration Association governing employment
disputes. Any award made by such arbitrator(s) shall be
final, binding and conclusive on the parties for all
purposes, and judgment upon the award rendered by the
arbitrator(s) may be entered in any court having
jurisdiction thereof.
(b) Any and all reasonable legal fees and expenses incurred by
Employee in seeking to enforce any rights to benefits
provided by this Agreement or the agreements referenced
herein shall be promptly paid by the Company if Employee is
successful in whole or in part in obtaining or enforcing
said rights to benefits pursuant to arbitration.
19. Severability. The invalidity or enforceability of any
provision hereof shall in no way affect the validity or enforceability of any
other provision.
20. Amendment. This Agreement may be amended only by mutual
consent of the parties hereto evidenced in writing.
21. Notices. Any notice required or permitted to be given under this
Agreement shall be sufficient if in writing and if given to Employee, sent by
certified or registered mail to Employee's residence (if such notice is
addressed to Employee) or if given to the Company, sent to the principal
executive offices of the Company.
22. Representation.
(a) Employee hereby represents and warrants to the Company that
Employee is not aware of any presently existing fact,
circumstance or event (including, without limitation, any
contractual or other legal constraint) which would preclude
or restrict him from entering into this Agreement or
providing to the Company the services contemplated by this
Agreement, or which would give rise to any breach of any
term or provision hereof.
(b) The Company hereby represents and warrants to Employee that
(i) it has received all authorizations necessary for the
execution of this Agreement on the terms and conditions set
forth herein, (ii) there are no regulatory approvals that
are necessary for the execution and performance of this
Agreement by the Company, and (iii) its entering this
Agreement and the performance of its obligations under this
Agreement will not violate any agreement between the Company
and any other person, firm or organization or any law or
governmental regulation.
IN WITNESS WHEREOF, the parties have executed this Agreement (in
multiple copies) effective as of the day and year first above written.
SEITEL, INC.
/s/ Xxxxxx X. Xxxxxxx /s/ Xxxx X. Frame
----------------------------- ----------------------------------------
Xxxxxx X. Xxxxxxx Xxxx X. Frame
President and Chief Executive Officer
