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EXHIBIT 10.58
EMPLOYEE BENEFITS ALLOCATION AGREEMENT
This EMPLOYEE BENEFITS ALLOCATION AGREEMENT, dated _______________,
1997, is between Seitel Inc. ("Seitel"), a Delaware corporation, and Eagle
Geophysical, Inc. ("Eagle"), a Delaware corporation.
WHEREAS, Seitel, a public company whose common shares are traded on
the New York Stock Exchange, owns indirectly 100% of the common stock of Eagle.
WHEREAS, the Board of Directors of Seitel has determined, subject to
its further consideration and the satisfaction of certain conditions, to
separate the ownership of a majority of its equity ownership of Eagle and its
subsidiaries from Seitel by means of an initial public offering by Eagle and
Seitel of 5,880,000 shares of Eagle common stock (the "IPO") pursuant to a
Registration Statement filed by Eagle with the SEC on June 2, 1997, as amended.
WHEREAS, the parties hereto have determined that it is necessary and
desirable to make certain agreements regarding employee benefit plans and
related matters in connection with the IPO.
NOW, THEREFORE, in consideration of the mutual agreements, provisions
and covenants contained herein, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS; HEADINGS
SECTION 1 - DEFINITIONS. As used in this Agreement, the following
terms shall have the following meanings, unless a different meaning clearly is
required by the context:
(a) Administrative Services Agreement. The transition management
Administrative Services Agreement, dated ______________, 1997, between Seitel
and Eagle entered into pursuant to the terms of the Master Separation
Agreement.
(b) Action or Claim. Any "Third-party Claim" as defined in the
Master Separation Agreement, together with any assessment of, or claim for,
taxes or a statutory penalty. For purposes hereof, the term "Action" or
"Claim" always is deemed to include, but is not limited to, a Qualification or
ERISA Claim.
(c) Closing Date. The Closing Date as defined in the Master
Separation Agreement.
(d) COBRA. Continuation health coverage maintained under Section
4980B of the Code and Sections 601 to 607 of ERISA, and any successor
provisions thereto.
(e) Code. The Internal Revenue Code of 1986, as amended, and any
predecessor or successor thereto.
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(f) Employee or Active Employee. An individual maintained on an
entity's payroll system (including, but not limited to, an individual on
approved leave of absence and an individual in receipt of or entitled to
worker's compensation or employer-provided long term disability benefits) and,
to the extent required by the context, such an individual's dependents and
beneficiaries.
(g) ERISA. The Employee Retirement Income Security Act of 1974, as
amended from time to time.
(h) Filing. The requirement to timely file a form related to an
employee benefit plan, including but not limited to Internal Revenue Service
("IRS") Form 5500; to timely distribute a notice related to an employee benefit
plan, including, but not limited to, a COBRA notice or a summary plan
description; and to timely pay a fee or premium.
(i) IPO. The initial public offering described in the recitals to
this Agreement.
(j) Master Separation Agreement. The Master Separation Agreement of
even date herewith between Seitel and Eagle.
(k) Policy Claim. A routine claim for benefits under a medical,
dental, disability or group life insurance program.
(l) Qualification or ERISA Claim. Any Action or Claim arising from,
or related to, the failure of a benefit plan that is intended to be
tax-qualified under the provisions of Section 401(a), et seq., of the Code to
satisfy the requirements for qualification, in form or in operation; any Action
or Claim arising from, or related to, the failure of an employee benefit plan
to comply with applicable requirements of ERISA (including, for this purpose,
Section 4975 of the Code); and any Action or Claim arising from, or related to,
the failure to make a Filing.
SECTION 2 - HEADINGS. The headings in this Agreement are for
convenience of reference only and are not to be construed as a part of the
Agreement.
ARTICLE II
DEFINED CONTRIBUTION 401(k) PLAN
SECTION 1 - IDENTIFICATION OF EXISTING PLAN. The Seitel, Inc. 401(k)
Plan is maintained in the United States for employees and former employees of
Seitel and its related participating employers.
SECTION 2 - VESTING; FUNDING. Effective as of the close of business
on the Closing Date, each individual who is an active employee of Eagle and who
is a participant in the Seitel, Inc. 401(k) Plan shall be 100% vested in the
benefit accrued by him as of the Closing Date [BASED ON HIS COMPENSATION AND
SERVICE THROUGH SUCH DATE]. On such date as determined
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by Seitel, but prior to the asset transfer described in Section 3 of this
Article II, Seitel shall contribute, or cause to be contributed, to the Seitel,
Inc. 401(k) Plan any contributions required to be made under such plan on
behalf of participants who are employees of Eagle.
SECTION 3 - ESTABLISHMENT OF NEW 401(k) PLAN AND ASSET TRANSFER. On
or before July 1, 1997, Eagle shall adopt a defined contribution plan in a form
furnished to Eagle by Seitel. Such plan (the "Eagle Geophysical, Inc. 401(k)
Plan") shall be effective as of July 1, 1997. At such administratively
feasible date following the Closing Date as is determined by Seitel, there
shall be a transfer from the Seitel, Inc. 401(k) Plan to the Eagle Geophysical,
Inc. 401(k) Plan of the account balances of individuals who were participants
in the Seitel, Inc. 401(k) Plan and who are eligible to become participants in
the Eagle Geophysical, Inc. 401(k) Plan. Such transfers may be made in cash or
in kind or in a combination of both, in Seitel's sole discretion. Prior to
such transfer, Seitel shall continue to administer the Seitel, Inc. 401(k) Plan
in the interests of such participants as well as all other participants in the
Seitel, Inc. 401(k) Plan. It shall be provided that no further 401(k)
employee and matching contributions shall be made after the final
_______________, 1997 payroll deposit is made by or on behalf of a participant
who is or is scheduled to become an active employee of Eagle as of the close of
business on the Closing Date and provided, further, that no loans may be
obtained on or after _______________, 1997 from the 401(k) Plan by such
participants.
SECTION 4 - ALLOCATION OF RESPONSIBILITIES. Eagle shall be solely
responsible for all Filings for, and the defense of any Claim with respect to,
the plan adopted by it pursuant to Article II and Seitel shall be solely
responsible for all Filings for, and the defense of any Qualification or ERISA
Claim with respect to, the Seitel, Inc. 401(k) Plan.
ARTICLE III
MEDICAL, DENTAL, DISABILITY AND GROUP LIFE INSURANCE BENEFITS
Eagle shall establish effective as of the close of business on the
Closing Date medical, dental, disability and group life insurance (which
includes life and accidental death and dismemberment benefits) programs for the
benefit of Eagle's active employees that provide coverage to such employees
that is substantially similar to the coverage provided for such active
employees immediately prior thereto, including coverage without any
pre-existing condition limitation and annual out-of-pocket expenses that had
been satisfied or paid by such employees under similar programs maintained by
Seitel prior to the Closing Date. Eagle shall be solely responsible for all
Filings and Policy Claims for the programs established by it pursuant to this
Article III, and Seitel shall be solely responsible for all Filings and, to the
extent consistent with the terms of the programs sponsored by Seitel, Policy
Claims and the defense (including the settlement or payment) of all medical,
dental, disability and group life insurance Claims made by a covered
participant or his or her beneficiary relating to [EVENTS THAT OCCURRED PRIOR
TO] the close of business on the Closing Date under an insurance program
sponsored by Seitel. Eagle shall cooperate with Seitel in any manner
reasonably requested by Seitel or its employees or agents to enable Seitel to
complete such Filings and handle such Policy Claims. In addition, Eagle shall
reimburse Seitel for any costs or expenses incurred by Seitel in connection
with such programs that properly are allocable to Eagle.
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ARTICLE IV
SEVERANCE PAY; VACATION PAY
SECTION 1 - SEVERANCE PAY. Although the parties are of the belief
that the IPO obviously does not give rise to the payment of severance pay (or
salary continuation, unemployment compensation or similar pay), in the event
that on or after the close of business on the Closing Date, a Claim for any
such pay is made by an employee of Eagle, the defense of such Claim, as well as
any payment or settlement of such Claim, shall be solely the responsibility of
Eagle.
SECTION 2 - VACATION PAY. Effective as of the close of business on
the Closing Date, Eagle shall continue in effect any vacation pay plans
maintained for the benefit of their employees immediately prior thereto. In
the event that on or after the close of business on the Closing Date, a Claim
for vacation pay is made by an employee of Eagle, the defense of such Claim, as
well as any payment or settlement of such Claim, shall be solely the
responsibility of Eagle.
ARTICLE V
CAFETERIA PLAN
Effective as of the close of business on the Closing Date, Eagle shall
adopt cafeteria plan documents in a form furnished to Eagle with respect to the
Eagle employees who, prior to the Closing Date, were eligible and/or
participating in the Seitel, Inc. Cafeteria Plan that provided for the pre-tax
payment of medical and dental insurance premiums. The plan set forth in such
document ("Eagle Geophysical, Inc. Cafeteria Plan") shall become effective as
soon as practicable after the Closing Date and in no event later than
_______________, 1997.
ARTICLE VI
EMPLOYMENT; EMPLOYMENT RELATED MATTERS; OTHER BENEFITS
SECTION 1 - EMPLOYMENT. Effective as of the close of business on the
Closing Date, Eagle shall continue to employ all individuals who were employees
of Eagle as a wholly-owned subsidiary of Seitel immediately prior thereto,
together with any Seitel employees who are transferring to Eagle unless any
such individual declines employment with Eagle. Nothing herein shall be
construed to be a guarantee of employment, and Eagle may terminate an
individual's employment at any time and for any reason.
SECTION 2 - EMPLOYMENT RELATED MATTERS. Eagle shall be solely
responsible for the defense of any Claim made by, on behalf of, or with respect
to, (i) any employee thereof, (ii) any former employee of Eagle, or (iii) any
individual described in Section 1 hereof, including the settlement or payment
of such a Claim, that arises out of, or relates to, such individual's
employment with (or failure to be employed by) Eagle or an employee benefit
matter that is not covered elsewhere by the terms of this Agreement. Such
Claims include, but are not limited to, employment discrimination, harassment,
wrongful discharge and COBRA Claims.
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SECTION 3 - OTHER BENEFITS. Except as otherwise expressly provided in
this Agreement, Eagle shall be solely responsible for the provision of all
employee benefits to its employees and former employees and for any Filings and
the defense of any Claim, including any settlement or payment or such Claim,
related to any such benefit provided by it or the failure to provide or
maintain any particular benefit.
ARTICLE VII
CERTAIN BENEFITS ADMINISTRATION MATTERS
SECTION 1 - PURPOSE; RELATIONSHIP TO ADMINISTRATIVE SERVICES
AGREEMENT. The Administrative Services Agreement provides that Seitel shall
consult with Eagle with respect to employee benefits and certain related
matters. The purpose of this Article VII is to bind the parties to share in
certain employee benefits responsibilities that are necessary or appropriate in
view of other agreements reached herein and the fact that, for a portion of
1997, the parties are members of a controlled group of corporations, within the
meaning of Section 414(b) of the Code. To the extent inconsistent, the
provisions hereof override the provisions of the Administrative Services
Agreement.
SECTION 2 - FORM 5310 FILINGS. Unless expressly instructed in writing
otherwise by Eagle, Seitel shall make the IRS Form 5310 filings with the IRS
necessary to effectuate the transfers contemplated by Article II.
SECTION 3 - APPLICATION FOR DETERMINATION. Unless expressly
instructed in writing otherwise by Eagle and agreed to by Seitel, Eagle shall
file the application for determination with the IRS with respect to the newly
adopted Code Section 401(k) plan described in Article II.
SECTION 4 - DISCRIMINATION TESTING; DISTRIBUTIONS. Eagle shall supply
to Seitel within sixty (60) days of a request from Seitel all information
reasonably requested by Seitel to undertake discrimination testing under
Sections 401(a)(4), 401(k), 401(m), and 410(b) of the Code (or other applicable
sections of the Code) for the portion of 1997 during which the parties were
members of a controlled group of corporations within the meaning of Section
414(b) of the Code. Seitel shall share the discrimination test findings with
Eagle, to the extent relevant to Eagle. At such times as are determined by
Seitel, Eagle shall make distributions from their employee benefit plan to
their employees or take other corrective actions determined by Seitel upon
notice from Seitel to Eagle that such distributions or other actions are
necessary to satisfy any discrimination test for the portion of 1997 during
which the parties were members of a controlled group of corporations. Nothing
herein shall be construed to require Seitel to undertake discrimination testing
on Eagle's behalf nor shall any of Seitel's findings or any notice provided
pursuant to the immediately preceding sentence create any responsibility or
liability on the part of Seitel.
SECTION 5 - COOPERATION WITH RESPECT TO PLAN ADMINISTRATION. Seitel
and Eagle shall cooperate with each other, and shall provide, or cause to be
provided, to each other information reasonably requested within sixty (60) days
of the request, in order to efficiently administer and account properly for the
employee benefit plans maintained by them and the undertakings contemplated
herein, including for example, but not limited to, information necessary to
effectuate the provisions of Article II, Section 3 hereof.
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SECTION 6 - OTHER MATTERS. Except as otherwise provided in this
Agreement, unless requested by Eagle and agreed to by Seitel, or unless
initiated by Seitel and agreed to by Eagle, Seitel shall not be responsible for
employee benefits matters including, but not limited to, Filings, on behalf of
Eagle's employees, former employees, or their beneficiaries.
SECTION 7 - EXTENT OF SEITEL'S RESPONSIBILITY. The employee benefit
services provided to Eagle by Seitel pursuant to this Article VII and the
Administrative Services Agreement are ministerial and are for the sake of
administrative conveniences only. In providing such services, Seitel shall not
be responsible for the accuracy, completeness or timeliness of any advice or
service or any return, report, filing or other document that it provides,
prepares or assists in preparing except to the extent that any inaccuracy,
incompleteness or untimeliness arises solely from Seitel's gross negligence or
willful misconduct. The parties expressly acknowledge that with respect to any
employee benefit plan or arrangement established, maintained, or assumed by
Eagle, neither Seitel nor any of its directors, officers, employees, agents and
affiliates (and the heirs, executors, successors and assigns of any of the
foregoing) is or shall be a fiduciary. In accordance with the indemnification
provisions of Article VIII, Eagle shall indemnify, defend and hold harmless
Seitel and its directors, officers, employees, agents and affiliates (and the
heirs, executors, successors and assigns of any of the foregoing) from and
against any matter arising out of, or due to, an allegation or determination
that Seitel or any other person specified herein is a fiduciary or has
fiduciary responsibility with respect to any such employee benefit plan or
arrangement.
SECTION 8 - COMMON PROJECTS. The parties acknowledge that certain
employee benefit arrangements and responsibilities including, but not limited
to, discrimination testing, may involve a commonality of interests and,
accordingly, of projects and necessary services. To the extent that such
common projects are performed by Seitel and Seitel cannot ascertain the precise
amount of time spent in providing services to a particular party, its fees and
expenses (the amount of which shall be determined under the Administrative
Services Agreement) shall be apportioned on an equitable basis between Seitel
and Eagle. In general, the total fees and expenses for any such common project
shall be divided evenly between Seitel and Eagle unless Seitel determines that,
due to such factors as the amount and complexity of the data involved, a
different apportionment is more equitable.
SECTION 9 - OUTSIDE CONSULTANTS. The parties acknowledge that the
employee benefit arrangements made by them pursuant to this Agreement
including, but not limited to, this Article VII, may require the services of
outside consultants including, for example, attorneys and accountants. The
parties shall attempt to negotiate separate fee arrangements with outside
consulting, legal and accounting firms, even though some firms' services may
relate to projects common to both parties. However if, notwithstanding the
foregoing, Seitel receives an invoice from such a firm that clearly relates to
such a common project, Seitel shall apportion on an equitable basis the firm's
fees and expenses between the affected parties and ▇▇▇▇ each affected party
accordingly. In general, the total fees and expenses reflected on the invoice
shall be divided evenly between Seitel and Eagle unless Seitel determines that,
due to such factors as the amount and complexity of the data involved, a
different apportionment is more equitable.
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SECTION 10 - EXECUTIVE COMPENSATION. All executive compensation
arrangements have been addressed outside of this Agreement. All matters
relating to executive compensation will be handled in this manner.
ARTICLE VIII
INDEMNIFICATION
SECTION 1 - IN GENERAL. The party hereto to whom certain
responsibilities and liabilities have been allocated hereunder (the
"Indemnifying Party") shall indemnify, defend and hold harmless the other party
(the "Indemnitee"), including the Indemnitee's respective directors, officers,
employees, agents and affiliates (and the heirs, executors, successors and
assigns of any of the foregoing) from and against any and all losses,
liabilities, claims, damages, obligations, payments, costs and expenses,
matured or unmatured, absolute or contingent, accrued or unaccrued, liquidated
or unliquidated, known or unknown (including, without limitation, the costs and
expenses of any and all Actions, threatened Actions, demands, assessments,
judgments, settlements and compromises relating thereto and attorneys' fees and
any and all expenses whatsoever reasonably incurred in investigating, preparing
or defending against any such Actions or threatened Actions) arising out of or
due to the failure or alleged failure of the Indemnifying Party to pay, perform
or otherwise discharge in due course any of its responsibilities or
liabilities.
SECTION 2 - INDEMNIFICATION OF FIDUCIARIES. Seitel (directly or
through one or more subsidiaries) shall indemnify, defend and hold harmless
each individual who is both an employee of Seitel or Eagle and a trustee or
other fiduciary of an employee benefit plan (and his heirs, executors,
successors and assigns) from and against any and all losses, liabilities,
claims, damages, obligations, payments, costs and expenses, matured or
unmatured, absolute or contingent, accrued or unaccrued, liquidated or
unliquidated, known or unknown (including, without limitation, the costs and
expenses of any and all Actions, threatened Actions, demands, assessments,
judgments, settlements and compromises relating thereto and attorneys' fees and
any and all expenses whatsoever reasonably incurred in investigating, preparing
or defending against any such Actions or threatened Actions) directly arising
out of, or directly related to, the plan transfer contemplated by Article II
hereof.
SECTION 3 - LIMITATIONS ON, AND PROCEDURES FOR, INDEMNIFICATION. The
limitations on, and procedures for, indemnification set forth in the Master
Separation Agreement are incorporated herein by reference.
ARTICLE IX
MISCELLANEOUS
SECTION 1 - COMPLETE AGREEMENT; CONSTRUCTION. This Agreement, and the
agreements and documents referred to herein, shall constitute the entire
agreement between the parties with respect to the subject matter hereof and
shall supersede all previous negotiations, commitments and writings with
respect to such subject matter. Notwithstanding any other provisions in this
Agreement or the Master Separation Agreement to the contrary, in the event and
to the extent that there shall be a conflict between the provisions of the
Master Separation Agreement and this Agreement, the provisions of this
Agreement shall control.
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SECTION 2 - EXPENSES. Except as otherwise set forth in this
Agreement, each party hereto shall pay its respective costs and expenses in
connection with the preparation, execution, delivery and implementation of this
Agreement and with the consummation of the transactions contemplated by this
Agreement.
SECTION 3 - GOVERNING LAW. Subject to applicable federal law, this
Agreement shall be governed by and construed in accordance with the laws of the
State of Texas, without regard to the principles of conflicts of laws thereof.
SECTION 4 - NOTICES. All notices and other communications hereunder
shall be in writing and shall be delivered by hand or mailed by registered or
certified mail (return receipt requested) to the parties at the following
addresses (or at such other addresses for a party as shall be specified by like
notice) and shall be deemed given on the date on which such notice is received:
TO SEITEL: ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
TO EAGLE: ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
SECTION 5 - AMENDMENTS. This Agreement may not be modified or amended
except by an agreement in writing signed by the parties hereto.
SECTION 6 - SUCCESSORS AND ASSIGNS. This Agreement and all of the
provisions hereof shall be binding upon and inure to the benefit of the parties
and their respective successors and permitted assigns.
SECTION 7 - TERMINATION. This Agreement may be terminated in the
event that the Master Separation Agreement is terminated and the IPO abandoned
prior to the Closing Date. In the event of such termination, no party shall
have any liability of any kind to the other party.
SECTION 8 - NO THIRD PARTY BENEFICIARIES. Except as provided in
Section 2 of Article VIII ("Indemnification of Fiduciaries"), this Agreement is
solely for the benefit of the parties hereto and their respective subsidiaries
and shall not be deemed to confer upon third parties including, but not limited
to, employees any remedy, claim, liability, reimbursement, claim of action or
other right in excess of those existing without reference to this Agreement.
SECTION 9 - LEGAL ENFORCEABILITY. Any provision of this Agreement
which is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof.
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Any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction.
SECTION 10 - SATISFACTION OF CERTAIN CLAIMS. Notwithstanding any
other provision of this Agreement, in the event that a Claim relating to any
employee benefit plan or arrangement is successfully made by a person who is
not a party hereto (or a subsidiary or affiliate thereof) and Seitel in its
sole discretion, determines that such Claim may be satisfied from assets of the
plan or arrangement, the Claim, at Seitel's discretion, may be satisfied from
such assets.
SECTION 11 - FURTHER ASSURANCES. The parties hereto agree to execute
such documents and assurances as are necessary or appropriate to give effect to
the terms and conditions of this Agreement.
IN WITNESS WHEREOF, the parties, acting through their duly authorized
officers, have caused this Agreement to be duly executed as of the day and year
first above written.
SEITEL, INC.
By:
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▇▇▇▇ ▇. Frame, President
EAGLE GEOPHYSICAL, INC.
By:
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▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, President