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EXHIBIT 10.8
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered into as of
May 8, 2000 by and between WESTPORT RESOURCES CORPORATION a Delaware
corporation, whose address is Suite 2300, 410 17th Street, Denver, Colorado
80202 (the "Company"), and BARTH E. WHITHAM whose address is 16760 Wild Plum
Circle, Morrison, CO 80465 ("Officer").
THE PARTIES AGREE AS FOLLOWS:
1. Service.
1.1 Position. Officer agrees to be employed by and to serve
the Company as President, and the Company agrees to employ and retain Officer in
such capacity in accordance with the terms of this Agreement. Officer shall have
powers as determined by the Company's Board of Directors and duties commensurate
with his position as President of the Company.
1.2 Duties. The Officer shall assume and discharge the
responsibilities of the President (as set forth in the Bylaws of the Company),
as well as such other responsibilities as may be assigned to him by the Board of
Directors of the Company. Officer shall perform his responsibilities to the best
of his abilities, shall comply with the general management policies of the
Company as announced by the Board of Directors from time to time and shall
devote all of his business time, skill and attention to the good faith best
efforts performance of his responsibilities and the affairs of the Company. The
Officer will engage in no other business or activity for compensation during the
term of this Agreement except with the prior written consent of the Company. The
Officer shall always be subject to the directions of the Board of Directors, to
whom Officer shall report directly, in the performance of his responsibilities,
and nothing herein shall affect the power of the Board of Directors to limit,
alter, restrict, or remove the authority of the Officer. Officer's principal
place of business with respect to his services to the Company shall be at its
offices located in the Denver, Colorado metropolitan area or other location
reasonably acceptable to Officer. Officer shall be required at various times to
travel as part of his duties.
2. Term of Employment.
2.1 Basic Term. The initial term of employment of Officer by
the Company shall be from the date hereof through May 31, 2003 unless terminated
earlier pursuant to this Agreement.
3. Salary, Benefits and Bonus Compensation.
3.1 Base Salary. Commencing May 8, 2000, the Company agrees to
pay to Officer a "Base Salary" of $225,000 per annum, payable on the Company's
regularly established payroll payment dates. The Base Salary shall be subject to
modification for each calendar year or portion thereof determined in the sole
discretion of the Board of
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Directors. In the absence of and until any salary determination by the Board,
Officer's Base Salary for a particular calendar year shall be identical to
Officer's Base Salary in effect on December 31st of the immediately preceding
calendar year.
3.1 Benefits.
3.2.1 Officer Benefits. Officer shall be eligible to
participate in such of the Company's benefit and compensation plans as may be
generally available to employees of the Company, including participation in the
Company's health insurance plan, bonus plan, and its 401(k) program. All such
benefit plans may be amended or discontinued in the sole discretion of the
Company.
3.2.2 Business Expenses. The Company shall reimburse
Officer for all reasonable and necessary expenses incurred in carrying out his
duties under this Agreement, including travel and entertainment expenses.
Officer shall present monthly to the Company an itemized account of such
expenses in such form as may be required by the Company.
3.2.3 Auto. Officer shall be provided with an
appropriate company automobile to be used for business purposes in the course of
performing his duties described in Section 1.2. The automobile may also be used
by the Officer for personal travel, and, in such event, the Officer shall
maintain records regarding automobile use as required by federal tax
regulations. The Officer's records of automobile use shall be available to the
Company upon request.
3.2.4 Vacation and Health Club. Officer shall be
entitled to vacation time generally available to executive employees of the
Company (but no less than four weeks per year), during which vacation time his
compensation shall be paid in full. Officer shall be eligible to use the
Company's health club membership and Petroleum Club membership.
3.2.5 Stock Option. Officer shall be granted a
stock option to acquire One Hundred Seventy-Five Thousand (175,000) shares of
the Company's common stock, (the "Common Stock"), at a price of $16.28 per share
pursuant to the terms of the Stock Option Plan (the "Plan") effective as of
March 1, 2000. Such options shall vest ratably over a three (3) year period,
subject to adjustment as necessary for changes made to the outstanding shares of
Common Stock as set forth in the Plan, and pursuant to a stock option agreement
to be entered into by and between the Company and Officer pursuant to the Plan.
3.2.6 Severance. If, prior to May 31, 2003, Officer
is subject to a Termination Other Than for Cause (as defined below), the Company
shall pay Officer a sum equal to three times Officer's then applicable annual
Base Salary and three times the average of the last three years' bonuses.
3.3 Other Benefits. Nothing in this Article 3 shall be deemed
to limit or restrict any right or benefit of Officer under the Company's
Certificate of Incorporation, Bylaws or other documents or agreements of the
company applicable to officer.
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4. Termination of Employment.
4.1 Termination for Cause. Termination for Cause (as defined
below) of Officer's employment may be effected by the Company at any time
without liability except as specifically set forth in this Section 4.1. The
termination shall be effected by written notification to Officer and shall be
effective as of the time set forth in such notice. At the effective time of a
Termination for Cause, Officer immediately shall be paid all accrued Base Salary
and any reasonable and necessary business expenses incurred by Officer in
connection with his duties hereunder, all to the effective date of termination.
In addition, Officer shall be entitled to benefits under any benefit plans of
the Company in which Officer is a participant to the full extent of Officer's
rights under such plans.
4.2 Termination Other Than for Cause. The Company may effect a
Termination Other Than for Cause (as defined below) of Officer's employment at
any time upon giving written notice to Officer of such termination and without
liability except as specifically set forth in this Section 4.2. The termination
shall be effective as of the time set forth in such notice. At the effective
date of any Termination Other Than for Cause, Officer shall immediately be paid
all accrued Base Salary, severance payments pursuant to Section 3.2.6 and any
reasonable and necessary business expenses incurred by Officer in connection
with his duties hereunder, all to the effective date of termination. In
addition, Officer shall be entitled to benefits under any benefit plans of the
Company in which Officer is a participant to the full extent of Officer's rights
under such plans.
4.3 Disability. If, during the term of this Agreement,
Officer, in the reasonable judgment of the Board of Directors of Company, has
failed to perform his duties under this Agreement on account of illness or
physical or mental disability, which condition renders Officer incapable of
performing the duties of this office, and such condition continues for a period
of more than three (3) months, Company shall have the right to terminate
Officer's employment hereunder by written notification to Officer. In the event
of such termination, Company shall pay to Officer all accrued Base Salary and
any reasonable and necessary business expenses incurred by Officer in connection
with his duties hereunder, all to the effective date of termination, and
severance payments pursuant to Section 3.2.5. In addition, Officer shall be
entitled to benefits under any benefit plans of the Company in which Officer is
a participant to the full extent of Officer's rights under such plans.
4.4 Death. In the event of Officer's death during the term of
employment hereunder, Officer's employment shall be deemed to have terminated as
of the last day of the month during which his death occurs, and the Company
shall pay promptly to his estate all accrued Base Salary and any reasonable and
necessary business expenses incurred by Officer in connection with his duties
hereunder, all to the effective date of termination. Officer's estate shall also
be entitled to benefits under any benefit plans of the Company in which Officer
is a participant to the full extent of Officer's rights under such plans.
4.5 Voluntary Termination. In the event of a Voluntary
Termination (as defined below) by Officer, the Company shall immediately pay all
accrued Base Salary and any reasonable and necessary business expenses incurred
by Officer in connection with his duties hereunder, all to the effective date of
termination. In addition, Officer shall be
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entitled to benefits under any benefit plans of the Company in which Officer is
a participant to the full extent of Officer's rights under such plans.
4.6 Termination Upon a Change in Control. In the event of a
termination upon a change in control, Officer shall be paid all accrued Base
Salary and any reasonable and necessary business expenses incurred by Officer in
connection with his duties hereunder and severance payments pursuant to section
3.2.6. "Termination Upon a Change in Control" shall mean a termination by
Officer for Good Reason (as defined below) of Officer's employment with Company
following a Change in Control (as defined below). For purposes of this
Agreement, "Good Reason" shall include, but not be limited to, any of the
following (without the Officer's express written consent):
i) the assignment to Officer by Company of duties inconsistent
with, or a substantial alternation in the nature or status of, Officer's
responsibilities immediately prior to a Change in Control.
ii) any reduction by Company in the officer's Base Salary in
any fiscal year after the date of a change in Control; or
iii) the assignment to the Officer by the Company of duties
requiring the Officer to locate outside of Denver, Colorado.
iv) after a Change in Control, any material breach by Company
of any provision of this Agreement, if such material breach has not been cured
within thirty (30) days following written notice by Officer to Company of such
breach setting forth with specificity the nature of the breach.
4.7 Excise Tax Limitation
i) Gross-Up Payment. In the event it shall be determined that
any payment or distribution of any type to or for the benefit of the Officer, by
the Company, any Affiliate, any person who acquires ownership or effective
control of the Company or ownership of a substantial portion of the Company's
assets (within the meaning of Section 280G of the Code and the regulations
thereunder) or any affiliate of such Person, whether paid or payable or
distributed or distributable pursuant to the terms of this Agreement or
otherwise (the "Total Payments"), is or will be subject to the excise tax
imposed by Section 4999 of the Code or any interest or penalties with respect to
such excise tax (such excise tax, together with any such interest and penalties,
are collectively referred to as the "Excise Tax"), then the Officer shall be
entitled to receive an additional payment (a "Gross-Up Payment") in an amount
such that after payment by the Officer of all taxes (including any interest or
penalties imposed with respect to such taxes), including any income tax,
employment tax or Excise Tax, imposed upon the Gross-Up Payment, the Officer
retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon
the Total Payments.
ii) Determination by Accountant. All mathematical
determinations, and all determinations as to whether any of the Total Payments
are "parachute payments" (within the meaning of Section 280G of the Code), that
are required to be made under this Section, including determinations as to
whether a Gross-Up Payment is required, the
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amount of such Gross-Up Payment and amounts relevant to the last sentence of
this Section 2(d)(2), shall be made at the Company's expense by an independent
accounting firm selected by the Company from among the six largest accounting
firms in the United States (the "Accounting Firm"). The Accounting Firm shall
provide its determination (the "Determination"), together with detailed
supporting calculations and documentation to the Company and the Officer by no
later than ten (10) days following the Termination Date, if applicable, or such
earlier time as is requested by the Company or the Officer (if the Officer
reasonably believes that any of the Total Payments may be subject to the Excise
Tax). If the Accounting Firm determines that no Excise Tax is payable by the
Officer, it shall furnish the Officer and the Company with a written statement
that such Accounting Firm has concluded that no Excise Tax is payable
(8\including the reasons therefor) and that the Officer has substantial
authority not to report any Excise Tax on his or her federal income tax return.
If a Gross-Up Payment is determined to be payable, it shall be paid to the
Officer within twenty (20) days after the Determination (and all accompanying
calculations and other material supporting the Determination) is delivered to
the Company by the Accounting Firm. Any determination by the Accounting Firm
shall be binding upon the Company and the Officer, absent manifest error. As a
result of uncertainty in the application of Section 4999 of the Code at the time
of the initial determination by the Accounting Firm hereunder, it is possible
that Gross-Up Payments not made by the Company should have been made
("Underpayment"), or that Gross-Up Payments will have been made by the Company
which should not have been made ("Overpayments"). In either such event, the
Accounting Firm shall determine the amount of the Underpayment or Overpayment
that has occurred. In the case of an Underpayment, the amount of such
Underpayment shall be promptly paid by the Company to or for the benefit of the
Officer. In the case of an Overpayment, the Officer shall, at the direction and
expense of the Company, take such steps as are reasonably necessary (including
the filing of returns and claims for refund), follow reasonable instructions
from, and procedures established by, the Company, and otherwise reasonably
cooperate with the Company to correct such Overpayment, provided, however, that
(i) the Officer shall not in any event be obligated to return to the Company an
amount greater than the net after-tax portion of the Overpayment that he or she
has retained or has recovered as a refund from the applicable taxing authorities
and (ii) this provision shall be interpreted in a manner consistent with the
intent to make the Officer whole, on an after-tax basis, from the application of
the Excise Tax, it being understood that the correction of an Overpayment may
result in the Officer repaying to the Company an amount which is less than the
Overpayment.
iii) The Officer shall notify the Company in writing of any
claim by the Internal Revenue Service that, if successful, would require the
payment by the Company of the Gross-up Payment. Such notification shall be given
as soon as practicable but no later than 10 business days after the Officer is
informed in writing of such claim and shall apprise the Company of the nature of
such claim and the date on which such claim is requested to be paid. The Officer
shall not pay such claim prior to the expiration of the 30-day period following
the date on which he or she gives such notice to the Company (or such shorter
period ending on the date that any payment of taxes with respect to such claim
is due). If the Company notifies the Officer in writing prior to the expiration
of such period that it desires to contest such claim, the Officer shall:
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a) give the Company any information reasonably
requested by the Company relating to such
claim,
b) take such action in connection with
contesting such claim as the Company shall
reasonably request in writing from time to
time, including, without limitation,
accepting legal representation with respect
to such claim by an attorney reasonably
selected by the Company,
c) cooperate with the Company in good faith in
order effectively to contest such claim, and
d) permit the Company to participate in any
proceedings relating to such claim;
provided, however, that the Company shall bear and pay directly all costs and
expenses (including additional interest and penalties) incurred in connection
with such contest and shall indemnify and hold the Officer harmless, on an
after-tax basis, for any Excise Tax or income tax (including interest and
penalties with respect thereto) imposed as a result of such representation and
payment of costs and expenses. Without limiting the foregoing provisions of this
Section 2(d), the Company shall control all proceedings taken in connection with
such contest and, at its sole option, may pursue or forgo any and all
administrative appeals, proceedings, hearings and conferences with the taxing
authority in respect of such claim and may, at its sole option, either direct
the Officer to pay the tax claimed and sue for a refund or contest the claim in
any permissible manner, and the Officer agrees to prosecute such contest to a
determination before any administrative tribunal, in a court of initial
jurisdiction and in one or more appellate courts, as the Corporation shall
determine; provided, however, that if the Company directs the Officer to pay
such claim and sue for a refund, the Company shall advance the amount of such
payment to the Officer, on an interest-free basis, and shall indemnify and hold
the Officer harmless, on an after-tax basis, from any Excise Tax or income tax
(including interest or penalties with respect thereto) imposed with respect to
such advance or with respect to any imputed income with respect to such advance;
and further provided that any extension of the statute of limitation relating to
payment of taxes for the taxable year of the Officer with respect to which such
contested amount is claimed to be due is limited solely to such contested
amount. Furthermore, the Company's control of the contest shall be limited
solely to such contested amount. Furthermore, the Company's control of the
contest shall be limited to issues with respect to which a Gross-up Payment
would be payable hereunder and the Officer shall be entitled to settle or
contest, as the case may be, any other issue raised by the Internal Revenue
Service or any other taxing authority.
5. Protection of the Company's Business.
5.1 No Competition. Officer shall not, for twelve (12) months
following the voluntary termination of his employment, work as an employee or
independent contractor or become an investor or owner in or lender to any
business, corporation, partnership or other entity (a "Competing Business")
where such employment with, investment in or service to the Competing Business
would aid, entail or result in such Competing Business' competition with the
Company in any project or transaction of the
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Company of which Officer was aware or should have been aware during the term of
his employment with the Company.
5.2 No Hire of Other Officers or Contractors. Officer agrees
that for a period of twelve (12) months from and after the date following the
termination of his employment, he shall not, directly or indirectly, as an
employee of or consultant to any Person, or for himself or on behalf of, or in
connection with, any Person, solicit or attempt to solicit, direct or take away
any Person who was an employee, agent, or contractor of the Company at any time
during the twelve-month period prior to the termination of Officer's employment
or who is an employee, agent or contractor for the Company during the
twelve-month period following the termination of Officer's employment; provided,
however, that this provision shall not apply to the solicitation or attempted
solicitation of any Person known in the industry in which the Company is engaged
to have performed services in the industry generally and not as an employee of
any single entity in the industry. The Company may waive the restriction
contained in this Section 5.2 as to any employee at any time, but any such
waiver shall not be considered a waiver of the future application of this
provision nor shall it be considered a waiver as to any employee other than the
one to whom it applies.
6. Confidentiality.
6.1 Confidential Information and Materials. All of the
Confidential Information and Materials, as defined herein, are and shall
continue to be the exclusive confidential property and trade secrets of the
Company. Such Confidential Information and Materials shall include only such
information that is proprietary to the Company and shall not include any
information that becomes part of the public domain through no fault of Officer.
Confidential Information and Materials have been or will be disclosed to Officer
solely by virtue of his employment with the Company and solely for the purpose
of assisting him in performing his duties for the Company. "Confidential
Information and Materials" refers to the terms of this Agreement, the
organization structure and ownership of the Company, its shareholders, its
advisors and advisors to its shareholders, its affiliates and the affiliates of
any of its shareholders and their advisors and all information belonging to or
used by the Company or the Company's clients or associates relating to internal
operations, procedures and policies, finances, income, profits, business
strategies, pricing, billing information, compensation and other personnel
information, client contacts, sales lists, employee lists, geotechnical
information of every sort and character, technology, land status, exploration
and acquisition plans and programs, costs, marketing plans, developmental plans,
drilling plans, inventions, computer program manuals, computer programs, and
computer system designs (to the extent such manuals, programs and designs are
created by or for the Company and are not off-the-shelf manuals, programs and
designs) and trade secrets of every kind and character, whether or not they
constitute a trade secret under applicable law and whether developed by Officer
during or after business hours.
6.2 Non-disclosure and Non-use. Officer may use Confidential
Information and Material while an employee of the Company and in the course of
that employment to the extent deemed necessary by the Board of Directors for the
performance of Officer's responsibilities or as otherwise required by law. Such
permission expires upon termination of his employment with the Company or on
notice from the Company. Officer shall not,
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either during or after his employment with the Company, disclose any
Confidential Information or Materials to any person, firm, corporation,
association or other entity for any reason or purpose unless expressly permitted
by the Company in writing or unless required by law to be disclosed. Officer
shall not use, in any manner other than to further the Company's business, any
Confidential Information or Materials. Upon termination of his employment,
Officer shall immediately return all Confidential Information or Materials or
other property of the Company, its associates or its potential associates in his
possession or control.
7. Definitions.
7.1 Definitions. For purposes of this Agreement, the
following terms shall have the following meanings:
7.1.1 "Affiliate" shall mean, with respect to any
Person, any other Person directly or indirectly controlling, controlled by or
under direct or indirect common control with such Person. A Person shall be
deemed to control another Person for purposes of this definition if such Person
possesses, directly or indirectly, the power (i) to vote the securities or other
ownership interests having ordinary voting power to elect a majority of the
Board of Directors of a corporation or other Persons performing similar
functions for any other type of Person, or (ii) to direct or cause the direction
of the management and policies of such Person, whether through the ownership of
voting securities, by contract, as general partner, as trustee or otherwise.
7.1.2 "Change in Control" shall be defined to have
occurred if (a) any "person" or "group" (within the meaning of Sections 13(d)
and 14(d)(2) of the 1934 Act), other than a trustee or other fiduciary holding
securities under an employee benefit plan of the Company or the current
beneficial owners or their Affiliates (as defined herein) are or become the
"beneficial owner" (as defined in Rule 13d-3 under the 1934 Act), directly or
indirectly, of more than one-half of the then outstanding voting stock of the
Company; or (b) the stockholders of the Company approve a merger or
consolidation of the Company with any other corporation, other than a merger of
consolidation which would result in the voting securities of the Company
outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities of the
surviving entity) at least a majority of the combined voting power of the voting
securities of the Company or such surviving entity outstanding immediately after
such merger of consolidation, or the stockholders approve a plan of complete
liquidation of the Company or an agreement for the sale or disposition by the
Company of all or substantially all of the Company's assets.
7.1.3 "Person" shall mean any individual,
partnership, joint venture, firm, company, corporation, association, trust or
other enterprise or any government or political subdivision or any agent,
department or instrumentality thereof.
7.1.4 "Termination for Cause" shall mean termination
by the Company of Officer's employment by the Company by reason of Officer's (1)
willful dishonesty towards, fraud upon or deliberate injury or attempted
deliberate injury to the Company; (2) misrepresentation or concealment of a
material fact or circumstance for the purpose of or otherwise in connection with
securing employment with the Company; (3)
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breach by Officer of any of the provisions of Section 6 of this Agreement; (4)
the refusal or willful failure to follow the lawful directions of the Board of
Directors; (5) conviction for a felony; or (6) any material breach of this
Agreement.
7.1.5 "Termination Other Than for Cause" shall mean
termination by the Company of Officer's employment by the Company other than a
Termination for Cause or for any or no reason. In no event shall the expiration
of this Agreement as set forth in Section 2.1 constitute a "Termination Other
Than for Cause".
7.1.6 "Voluntary Termination" shall mean termination
by Officer of Officer's employment with the Company, but shall not include
constructive termination by the Company by reason of material breach of this
Agreement by the Company. Voluntary Termination shall include a termination of
Officer by the Company after its receipt of a notice of an otherwise Voluntary
Termination from Officer.
8. Remedies.
8.1 Equitable Remedies. The service rendered by Officer to the
Company and the information disclosed to Officer during his employment are of a
unique and special character, and any breach of Sections 5 or 6 hereof will
cause the Company irreparable injury and damage which will be extremely
difficult to quantify. The parties agree that because of unquantified risks and
intangibles which are impossible to measure, the Company will be entitled to, in
addition to all other remedies available to it, injunctive relief to prevent a
breach and to secure the enforcement of all provisions of Sections 5 and 6.
Injunctive relief may be granted immediately upon the commencement of any such
action without notice to Officer, which notice Officer hereby specifically
waives.
8.2 Arbitration. In the event any controversy arises with
respect to this Agreement, it shall be arbitrated in accordance with the rules
and procedures of the American Arbitration Association with the following
limitations:
8.2.1 The laws of the State of Colorado shall be
applied to the interpretation and resolution of the controversy. The situs of
the arbitration shall be in the Denver Metropolitan Area of Colorado.
8.2.2 The parties shall be entitled to conduct
expedited discovery proceedings in accordance with the Colorado Rules of Civil
Procedure and such rights of discovery may be enforced by the appropriate court
by filing a petition for compliance, in regard to which the parties hereto agree
to abide timely and fully. The discovery period shall in no event exceed a
period of sixty (60) days from the date the arbitration response is filed by the
responding party.
8.2.3 Arbitration procedures shall be conducted
substantially in accordance with the Rules of Civil Procedure in the State of
Colorado and the Rules of Evidence of said State.
8.2.4 The award of arbitration may be reduced to
judgment in accordance with the rules of Civil Procedure of the State of
Colorado and/or the rules or laws of any other jurisdiction and the Colorado
Uniform Arbitration Act.
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8.2.5 In the event one party willfully, after ten
(10) days notice of his failure or refusal, fails or refuses to comply timely
with the arbitration procedure, that party shall be deemed to have conclusively
waived its right to participate in the arbitration and the nondefaulting party
may either proceed to arbitration, the decision of which shall be binding upon
the defaulting party, or may proceed in an action in court.
8.2.6 The prevailing party in any arbitration may be
entitled to an award of attorneys' fees and all costs to be paid by the losing
party in the arbitration as determined by the arbitrators.
8.2.7 In the event a court of competent jurisdiction
or panel of arbitrators finds any of the provisions of this section 8.2 to be so
overbroad as to be unenforceable, it is the parties' intent that with respect to
such jurisdiction such provision be reduced in scope by the Court, but only to
the extent deemed necessary by the Court or arbitrators to render the provision
reasonable and enforceable, keeping in mind that it is the parties' intent to
give the Company the broadest possible legal protection.
8.2.8 In no event shall any monetary dispute between
the parties be arbitrated or litigated until there is an aggregated dollar
amount of not less than $10,000.00 in dispute.
8.3 Costs. Each party shall bear its own costs, including
attorneys fees, in enforcing or interpreting any provision of this Agreement.
8.4 Severability. It is the express intent of the parties
hereto that the obligations of, and restrictions on, the parties provided for in
this agreement shall be enforced and given effect to the fullest extent legally
permissible. If, in any judicial proceeding, a court shall refuse to enforce one
or more of the covenants or agreements contained in this Agreement because the
duration thereof is too long, the scope thereof is too broad or some other
reason, for the purpose of such proceeding, the court may reduce such duration
or scope to the extent necessary to permit the enforcement of such obligations
and restrictions.
9. Miscellaneous.
9.1 Payment Obligations. The Company's obligation to pay
Officer the compensation provided herein is subject to the condition precedent
that Officer perform his obligations.
9.2 Withholdings. All compensation and benefits to Officer
hereunder shall be reduced by all federal, state, local and other withholdings
and similar taxes and payments required by applicable law. The Company may
withhold amounts due it from Officer from amounts due under this Agreement to
Officer.
9.3 Waiver. The waiver of the breach of any provision of this
Agreement shall not operate or be construed as a waiver of any subsequent breach
of the same or other provision hereof.
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9.4 Entire Agreement: Modifications. This Agreement represents
the entire understanding between the parties with respect to the subject matter
hereof, and this Agreement supersedes any and all prior understandings,
agreements, plans and negotiations, whether written or oral, with respect to the
subject matter hereof, including, without limitation, any understandings,
agreements or obligations respecting any past or future compensation, stock
options or issuances, bonuses, reimbursements or other payments to Officer from
the Company. All modifications to this Agreement must be in writing and signed
by the party against whom enforcement of such modification is sought.
9.5 Notices. All notices and other communications under this
Agreement shall be in writing and shall be given by hand delivery, or
first-class mail, certified or registered with return receipt requested, or by
commercial overnight courier or by facsimile and shall be deemed to have been
duly given upon hand delivery, three (3) days after mailing, the first business
day following delivery to a commercial overnight courier or upon receipt of a
facsimile, addressed as follows:
If to the Company:
Westport Oil and Gas Company, Inc.
410 Seventeenth Street, #2300
Denver, Colorado 80202
Facsimile: (303) 573-5609
with a copy to:
Dr. Richard J. Has Partners
Attention: Mr. Michael Russell
Dukes Court
32 Duke Street St. James
London UK SW1Y 6DF
Facsimile: 011-44-207-321-5242
Equitable Resources Energy Co.
One Oxford Centre, Suite 3300
Pittsburgh, PA 15219
Attention: Mr. Murry Gerber
Facsimile: (412) 553-5731
If to Officer:
Barth E. Whitham
16760 Wild Plum Circle
Morrison, CO 80465
Any party may change such party's address for notices by notice given pursuant
to this Section 9.5.
9.6 Headings. The Section headings herein are intended for
reference and shall not by themselves determine the construction or
interpretation of this Agreement.
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9.7 Governing Law; Consent to Jurisdiction. This Agreement
shall be governed by and construed in accordance with the laws of the State of
Colorado without application of its conflict of law rules. Officer hereby
submits to the exclusive jurisdiction and venue of the District Court of the
State of Colorado for the City and County of Denver or the United States
district Court for the district of Colorado for purposes of any legal action.
Officer agrees that service upon Officer in any such action may be made by
first-class mail, certified or registered, in the manner provided for delivery
of notices in Section 9.5
9.8 Severability. Should a court or other body of competent
jurisdiction determine that any provision of this agreement is excessive in
scope or otherwise invalid or unenforceable, such provision shall be adjusted
rather than voided, if possible, so that it is enforceable to the maximum extent
possible, and all other provisions of the Agreement shall be deemed valid and
enforceable to the extent possible.
9.9 Survival of the Company's Obligation. The Company's
obligations hereunder shall not be terminated by reason of any liquidation,
dissolution, bankruptcy, cessation of business or similar event relating to the
Company. This Agreement shall not be terminated by any merger or consolidation
or other reorganization of the Company. In the event any such merger,
consolidation or reorganization shall be accomplished by transfer of stock or by
transfer of assets or otherwise, the provisions of this Agreement shall be
binding upon and insure to the benefit of the surviving or resulting corporation
or person. This Agreement shall be binding upon and inure to the benefit of the
executors, administrators, heirs, successors and assigns of the parties;
provided, however, that except as provided in this Section, this Agreement shall
not be assignable either by the Company or by Officer.
9.10 Counterparts. This Agreement may be executed in one or
more counterparts, all of which taken together shall constitute one and the same
Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this
agreement as of the date first above written.
OFFICER WESTPORT RESOURCES CORPORATION
a Delaware Corporation
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Barth E. Whitham Name:
Title:
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