MITCHAM INDUSTRIES, INC.
AMENDED AND RESTATED STOCK AWARDS PLAN
SECTION 1. Purpose of the
Plan.
The Mitcham
Industries, Inc. Stock Awards Plan (the “Plan”) is
intended to promote the interests of Mitcham Industries, Inc., a
Texas corporation (the “Company”), by encouraging
Employees, Consultants and Directors to acquire or increase their
equity interest in the Company and to provide a means whereby they
may develop a sense of proprietorship and personal involvement in
the development and financial success of the Company, and to
encourage them to remain with and devote their best efforts to the
business of the Company, thereby advancing the interests of the
Company and its stockholders. The Plan is also contemplated to
enhance the ability of the Company and its Subsidiaries to attract
and retain the services of individuals who are essential for the
growth and profitability of the Company. The Plan is an amendment
and restatement of the Prior Plan. In addition, the Mitcham
Industries, Inc. 2000 Stock Option Plan (the “2000
Plan”) is hereby merged into the Plan. All awards outstanding
under the Prior Plan and the 2000 Stock Plan shall continue without
interruption or change under this Plan.
SECTION 2.
Definitions.
As used in the
Plan, the following terms shall have the meanings set forth
below:
“Award”
shall mean an Option, Restricted Stock, Performance Award, Phantom
Share, Stock Payment, SAR, or Other Stock-Based Award.
“Award
Agreement” shall mean any written or electronic agreement,
contract, instrument or document evidencing any Award, which may,
but need not, be executed or acknowledged by a
Participant.
“Board”
shall mean the Board of Directors of the Company, as constituted
from time to time.
“Change of
Control” shall mean, with respect to an Award that is subject
to Section 409A of the Code, a “change of control
event,” as defined in Section 409A of the Code and the
regulations thereunder. With respect to an Award that is not
subject to Section 409A, Change of Control shall mean the
occurrence of any of the following events:
(i) the Company is
not the surviving entity in any merger, consolidation or other
reorganization with (or survives only as a subsidiary of) an entity
other than a previously wholly-owned subsidiary of the
Company,
(ii) the Company
sells, leases or exchanges all or substantially all of its assets
to any other person or entity (other than a wholly-owned subsidiary
of the Company),
(iii) the Company
is dissolved and liquidated,
(iv) any person or
entity, including a “group” as contemplated by
Section 13(d)(3) of the 1934 Act, acquires the beneficial
ownership, directly or indirectly, of securities of the Company
representing 35% or more of the combined voting power of the then
outstanding securities entitled to vote generally in the election
of directors, or
(v) a change in
the composition of the Board, as a result of which fewer than a
majority of the directors are Incumbent Directors. “Incumbent
Directors” shall mean directors who either (A) are
directors of the Company as of the date the Plan was adopted, or
(B) are elected, or nominated for election, thereafter to the
Board with the affirmative votes of at least a majority of the
Incumbent Directors at the time of such election or nomination, but
“Incumbent Director” shall not include an individual
whose election or nomination is in connection with (i) an
actual or threatened election contest (as such terms are used in
Rule 14a-11 of Regulation 14A promulgated under the
Securities Exchange Act of 1934) or an actual or threatened
solicitation of proxies or consents by or on behalf of a Person
other than the Board or (ii) a plan or agreement to replace a
majority of the then Incumbent Directors.
“Code”
shall mean the Internal Revenue Code of 1986, as amended from time
to time, and the rules and regulations thereunder.
“Committee”
shall mean the administrator of the Plan in accordance with
Section 3, and shall include reference to the Compensation
Committee of the Board (or any other committee of the Board
designated, from time to time, by the Board to act as the Committee
under the Plan), the Board or subcommittee, as
applicable.
“Consultant”
shall mean any individual who is not an Employee or a member of the
Board and who provides consulting, advisory or other similar
services to the Company or a Subsidiary.
“Director”
shall mean any member of the Board who is not an
Employee.
“Employee”
shall mean any employee of the Company, a Subsidiary or a parent
corporation of the Company.
“Exchange
Act” shall mean the Securities Exchange Act of 1934, as
amended.
“Fair Market
Value” shall mean, as of any applicable date, the closing
sales price (or the closing bid if no sales were reported) for a
Share on the national securities exchange or market system which
constitutes the principal trading market for the Shares for the
applicable date as reported in The Wall Street Journal or such
reporting service approved by the Committee; provided, however,
that if Shares shall not have been quoted or traded on such
applicable date, Fair Market Value shall be determined based on the
next preceding date on which they were quoted or traded, or, if
deemed appropriate by the Committee, in such other manner as it may
determine to be appropriate. In the event the Shares are not
publicly traded at the time a determination of Fair Market Value is
required to be made hereunder, the determination of Fair Market
Value shall be made in good faith by the Committee.
“Incentive
Stock Option” or “ISO” shall mean an option
granted under Section 6(a) of the Plan that is intended to qualify
as an “incentive stock option” under Section 422
of the Code or any successor provision thereto.
“Non-Qualified
Stock Option” or “NQO” shall mean an option
granted under Section 6(a) of the Plan that is not intended to be
an Incentive Stock Option.
“Option”
shall mean an Incentive Stock Option or a Non-Qualified Stock
Option.
“Other
Stock-Based Award” shall mean an Award granted under Section
6(g) of the Plan.
“Participant”
shall mean any Employee, Consultant or Director granted an Award
under the Plan.
“Performance
Award” shall mean any right granted under Section 6(c) of the
Plan.
“Performance
Criteria” shall mean the following business criteria with
respect to the Company, any Subsidiary or any division, operating
unit or product line: net earnings (either before or after
interest, taxes, depreciation and/or amortization), sales, revenue,
net income (either before or after taxes), operating earnings, cash
flow (including, but not limited to, operating cash flow and free
cash flow), cash flow return on capital, return on net assets,
return on stockholders’ equity, return on assets, return on
capital, stockholder returns, return on sales, gross or net profit
margin, expense margins, cost reductions, controls or savings,
operating efficiency, working capital, strategic initiatives,
economic value added, earnings per share, earnings per share from
operations, price per share of stock, and market share.
“Person”
shall mean individual, corporation, partnership, limited liability
company, association, joint-stock company, trust, unincorporated
organization, government or political subdivision thereof or other
entity.
“Phantom
Shares” shall mean an Award of the right to receive Shares,
cash equal to the Fair Market Value of such Shares or any
combination thereof, in the Committee’s discretion, which is
granted pursuant to Section 6(d) of the Plan.
“Prior
Plan” shall mean the Amended and Restated 1998 Stock Awards
Plan of Mitcham Industries, Inc.
“Restricted
Period” shall mean the period established by the Committee
with respect to an Award during which the Award either remains
subject to forfeiture or is not exercisable by the Participant, as
the case may be.
“Restricted
Stock” shall mean any Share, prior to the lapse of
restrictions thereon, granted under Section 6(b) of the
Plan.
“Rule 16b-3”
shall mean Rule 16b-3 promulgated by the SEC under the
Exchange Act, or any successor rule or regulation thereto as in
effect from time to time.
“SAR”
shall mean a stock appreciation right granted under Section 6(e) of
the Plan that entitles the holder to receive the excess of the Fair
Market Value of a Share on the relevant date over the exercise
price of such SAR, with the excess paid in cash and/or in Shares in
the discretion of the Committee.
“SEC”
shall mean the Securities and Exchange Commission or any successor
thereto.
“Shares”
or “Common Shares” or “Common Stock” shall
mean the common stock of the Company, $0.01 par value, and such
other securities or property as may become the subject of Awards
under the Plan.
“Stock
Payment” means a payment in the form of Shares as part of or
in lieu of any cash bonus, deferred compensation or other
compensation arrangement, granted pursuant to Section 6(f) of the
Plan.
“Subsidiary”
shall mean any entity (whether a corporation, partnership, joint
venture, limited liability company or other entity) in which the
Company owns a majority of the voting power of the entity directly
or indirectly, except with respect to the grant of an ISO the term
Subsidiary shall mean any “subsidiary corporation” of
the Company as defined in Section 424 of the Code.
SECTION 3.
Administration.
3.1 The
Committee . The Plan shall be administered by the Compensation
Committee of the Board (or any other committee of the Board
designated, from time to time, by the Board to act as the Committee
under the Plan). Notwithstanding the foregoing, Awards made to
Directors shall be administered by the Board. The term
“Committee” as used herein shall refer to the
Compensation Committee (or other Board committee), the Board, or
the subcommittee (as defined in paragraph (c) of this
Section 3), as applicable.
3.2 Committee
Powers . A majority of the Committee shall constitute a quorum,
and the acts of the members of the Committee who are present at any
meeting thereof at which a quorum is present, or acts unanimously
approved by the members of the Committee in writing, shall be the
acts of the Committee. Subject to the terms of the Plan and
applicable law, and in addition to other express powers and
authorizations conferred on the Committee by the Plan, the
Committee shall have full power and authority to:
(i) designate Participants; (ii) determine the type or
types of Awards to be granted to a Participant;
(iii) determine the number of Shares to be covered by, or with
respect to which payments, rights, or other matters are to be
calculated in connection with, Awards; (iv) determine the
terms and conditions of any Award; (v) determine whether, to
what extent, and under what circumstances Awards may be settled or
exercised in cash, Shares, other securities, other Awards or other
property, or canceled, forfeited, or suspended and the method or
methods by which Awards may be settled, exercised, canceled,
forfeited, or suspended; (vi) interpret and administer the
Plan and any instrument or agreement relating to an Award made
under the Plan; (vii) establish, amend, suspend, or waive such
rules and regulations and appoint such agents as it shall deem
appropriate for the proper administration of the Plan; and
(viii) make any other determination and take any other action
that the Committee deems necessary or desirable for the
administration of the Plan. Unless otherwise expressly provided in
the Plan, all designations, determinations, interpretations, and
other decisions under or with respect to the Plan or any Award
shall be within the sole discretion of the Committee, may be made
at any time and shall be final, conclusive, and binding upon all
Persons, including the Company, any Subsidiary, any Participant,
any holder or beneficiary of any Award, any stockholder and any
other Person.
3.3 Delegation
to a Subcommittee . The Committee may, subject to any
applicable law, regulatory, securities exchange or other similar
restrictions, delegate to one or more members of the Board or
officers of the Company (the “subcommittee”), the
authority to administer the Plan as to Awards to Employees and
Consultants who are not subject to Section 16(b) of the Exchange
Act. The Committee may impose such limitations and restrictions, in
addition to any required restrictions/limitations, as the Committee
may determine in its sole discretion. Any grant made pursuant to
such a delegation shall be subject to all of the provisions of the
Plan concerning this type of Award.
SECTION 4. Shares Available
for Awards.
4.1 Shares
Available . Subject to adjustment as provided below, the number
of Shares that may be issued with respect to Awards granted under
the Plan shall be 1,249,864, which shall include any Shares
remaining available for Awards under the Prior Plan and the 2000
Plan on the date this amendment and restatement of the Plan becomes
effective. If an Award granted after the Plan’s effective
date is forfeited or otherwise lapses, expires, terminates or is
canceled without the actual delivery of Shares (Restricted Stock
awards shall not be considered “delivered Shares” for
this purpose) or is settled in cash, then the Shares covered by
such Award, to the extent of such forfeiture, expiration, lapse,
termination or cancellation, shall again be Shares that may be
issued with respect to Awards granted under the Plan. Shares
tendered to or withheld by the Company to satisfy any tax
withholding or exercise price obligations with respect to an Award
granted after the Plan’s effective date shall be available
for issuance under future Awards, subject to the overall limitation
provided in the first sentence above. In the discretion of the
Committee, all 1,249,864 Shares (as adjusted, if applicable) may be
issued under the Plan pursuant to ISOs.
4.2 Sources of
Shares Deliverable Under Awards . Any Shares delivered pursuant
to an Award may consist, in whole or in part, of authorized and
unissued Shares or of treasury Shares.
4.3
Adjustments . In the event of a stock dividend or stock split
with respect to Shares, the number of Shares with respect to which
Awards may be granted, the number of Shares subject to outstanding
Awards, the grant or exercise price with respect to outstanding
Awards and the individual annual grant limits with respect to
Awards (other than dollar denominated Awards) automatically shall
be proportionately adjusted, without action by the Committee;
provided, however, such automatic adjustment shall be evidenced by
written addendums to the Plan and Award Agreements prepared by the
Company and, with respect to Options, shall be in accordance with
the Treasury Regulations concerning Incentive Stock Options.
Further, in the event that the Committee determines that any
distribution (whether in the form of cash, Shares, other
securities, or other property), recapitalization, reorganization,
merger, spin-off, combination, repurchase, or exchange of Shares or
other securities of the Company, or other similar corporate
transaction or event affects the Shares such that an adjustment is
determined by the Committee to be appropriate in order to prevent
dilution or enlargement of the benefits or potential benefits
intended to be made available under the Plan, then the Committee
shall, in such manner as it may deem equitable, adjust any or all
of (i) the number and type of Shares (or other securities or
property) with respect to which Awards may be granted,
(ii) the number and type of Shares (or other securities or
property) subject to outstanding Awards, and (iii) the grant
or exercise price with respect to any Award or, if deemed
appropriate, make provision for a cash payment to the holder of an
outstanding Award; provided that the number of Shares subject to
any Award denominated in Shares shall always be a whole
number.
4.4 Individual
Participant Limits . Subject to adjustment pursuant to the
above paragraph (c), the maximum aggregate number of Shares that
may be subject to Share-denominated Awards granted under the Plan
to any individual during any fiscal year of the Company shall not
exceed 125,000. The method of counting such Shares shall conform to
any requirements applicable to performance-based compensation under
Section 162(m) of the Code or the rules and regulations promulgated
thereunder. The maximum amount of dollar-denominated Awards that
may be granted to any individual during any fiscal year of the
Company shall not exceed $2,000,000 as valued on the date of the
grant.
SECTION 5.
Eligibility.
Any Employee,
Consultant or Director shall be eligible to be designated a
Participant by the Committee. No individual shall have any right to
be granted an Award pursuant to this Plan.
SECTION 6.
Awards.
6.1
Options . Subject to the provisions of the Plan, the Committee
shall have the authority to determine Participants to whom Options
shall be granted, the number of Shares to be covered by each
Option, the purchase price therefor and the conditions and
limitations applicable to the exercise of the Option, including the
following terms and conditions and such additional terms and
conditions, as the Committee shall determine, that are not
inconsistent with the provisions of the Plan.
6.1.1 Exercise Price . The purchase price per Share
purchasable under an Option shall be determined by the Committee at
the time the Option is granted, but shall not be less than the Fair
Market Value per Share on the effective date of such
grant.
6.1.2 Time and Method of Exercise . The Committee
shall determine and provide in the Award Agreement or by action
subsequent to the grant the time or times at which an Option may be
exercised in whole or in part, and the method or methods by which,
and the form or forms (which may include, without limitation, cash,
check acceptable to the Company, Shares already-owned for more than
six months (unless such holding requirement is waived by the
Committee), Shares issuable upon Option exercise, a
“cashless-broker” exercise (through procedures approved
by the Committee), other securities or other property, a note, or
any combination thereof, having a Fair Market Value on the exercise
date equal to the relevant exercise price) in which payment of the
exercise price and tax withholding obligation with respect thereto
may be made or deemed to have been made. The Committee shall also
determine the performance or other conditions, if any, that must be
satisfied before all or part of an Option may vest and be
exercised. No portion of an Option which is unexercisable at
termination of the Participant’s employment or service, as
applicable, shall thereafter become exercisable, except as may be
otherwise provided by the Committee either in the Award Agreement
or by action following the grant of the Option.
6.1.3 Incentive Stock Options . An Incentive Stock
Option may be granted only to an individual who is an Employee of
the Company or any parent or subsidiary corporation (as defined in
Section 424 of the Code) at the time the Option is granted and
must be granted within 10 years from the date the Plan was
approved by the Board or the shareholders, whichever is earlier. To
the extent that the aggregate Fair Market Value (determined at the
time the respective Incentive Stock Option is granted) of Common
Stock with respect to which Incentive Stock Options are exercisable
for the first time by an individual during any calendar year under
all incentive stock option plans of the Company and its parent and
subsidiary corporations exceeds $100,000, such Incentive Stock
Options shall be treated as a Non-Qualified Stock Option. The
Committee shall determine, in accordance with applicable provisions
of the Code, Treasury Regulations and other administrative
pronouncements, which of a Participant’s Incentive Stock
Options will not constitute Incentive Stock Options because of such
limitation and shall notify the Participant of such determination
as soon as practicable after such determinatio
