EXHIBIT 10.30
CHANGE IN CONTROL SEVERANCE PROTECTION
AGREEMENT
WESTPORT RESOURCES CORPORATION
This CHANGE IN
CONTROL SEVERANCE PROTECTION AGREEMENT (the
“Agreement”) is entered into as of January 2 2004
between Westport Resources Corporation (“Westport”),
and Allan D. Keel (“the Employee”).
RECITALS
WHEREAS, the
Employee is a key employee of Westport and serves as
Westport’s Vice President/General Manager-Gulf of Mexico
Business Unit, and Westport and the Employee desire to set forth
herein the terms and conditions of the Employee’s
compensation in the event of a termination of the Employee’s
employment in connection with a Change in Control (as defined
below).
WHEREAS, in the
event of a Change in Control, the Employee may be vulnerable to
dismissal without regard to quality of the Employee’s
service, and Westport believes that it is in the best interests of
Westport to enter into this Agreement in order to ensure fair
treatment of the Employee and to reduce the distractions and other
adverse effects upon such the Employee’s performance which
are inherent in such a Change in Control.
WHEREAS, this
Agreement is not intended to be and shall not constitute an
employment contract between Westport and the Employee or to impose
any obligation upon Westport to retain the Employee. The Employee
acknowledges that the Employee is an “at-will” employee
of Westport and that Westport may terminate his or her employment
at any time with or without cause and with or without
notice.
NOW, THEREFORE,
for and in consideration of the foregoing, and for other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as
follows:
AGREEMENT
1. Definitions.
For purposes hereof, the following terms shall have the following
meanings:
a. “Affiliate”
shall mean, with respect to any Person (as defined herein), 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.
b. “Bonus
Amount” shall mean the average of the annual bonuses earned
by the Employee for the three calendar years in which bonuses were
paid preceding the year of Employee’s termination, or if the
Employee has been employed by the Company for less than three
calendar years prior to termination, the average for such lesser
period of time (excluding years in which bonuses were not paid).
The Board of Directors shall determine, taking into consideration
Company performance, target bonus amounts and other factors, the
Bonus Amount of the Employee if the Employee has not been employed
by the Company for a period of time during which bonuses have been
paid.
c. “Cause”
shall mean: (i) the Employee’s material breach of any
terms of this Agreement; (ii) the Employee’s willful and
continued failure to perform his or her job duties and
responsibilities; (iii) the Employee’s dishonesty
towards, fraud upon, crime against, deliberate or attempted injury
or bad faith action with respect to Westport or any of its
Affiliates; or (iv) the Employee’s conviction for any
felony crime (whether in connection with Westport’s or any of
its Affiliates’ affairs or otherwise); provided, however,
that with respect to clauses (i) and (ii), no such breach or
failure shall constitute Cause unless such breach or failure
continues after 30 days following written notice by Westport
the Employee of such breach or failure setting forth with
specificity the nature of such breach or failure.
d. “Change
in Control” shall have occurred if (a) any
“person” or “group” (within the meaning of
Sections 13(d) and 14(d)(2) of the Securities Exchange Act of 1934
(the “1934 Act”)), other than a trustee or other
fiduciary holding securities under an employee benefit plan of
Westport 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 Westport; or (b) there occurs a merger or consolidation of
Westport with any other corporation, other than a merger of
consolidation which would result in the voting securities of
Westport 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 Westport
or such surviving entity outstanding immediately after such merger
or consolidation, or the stockholders approve a plan of complete
liquidation of Westport or an agreement for the sale or disposition
by Westport of all or substantially all of Westport’s
assets.
e. “Disability”
shall mean a physical or mental infirmity which impairs the
Employee’s ability to perform substantially his or her duties
for a period of one hundred eighty (180) consecutive
days.
f. “Good
Reason” shall include any of the following:
(i)
Westport’s assignment to the Employee of duties inconsistent
with, or a substantial alteration in the nature of, the
Employee’s responsibilities in effect immediately prior to
the Change in Control;
(ii)
(A) a reduction in either the Employee’s salary or
target bonus (if a target bonus has been established for the
Employee) as each is in effect on the date of a Change in Control,
or (B) the discontinuance or material adverse alteration
of
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any
material pension, welfare or fringe benefit enjoyed by Employee on
the date of a Change in Control, unless such action relates to a
discontinuance of benefits on a management-wide or Company-wide
basis;
(iii)
Westport’s relocation of the Employee to any place in excess
of 50 miles from the Employee’s place of employment
immediately prior to the Change in Control without the
Employee’s written consent, except for reasonably required
travel by the Employee on Westport’s business;
(iv)
any material breach by Westport of any provision of this Agreement,
if such material breach has not been cured within 30 days following
written notice by the Employee to Westport of such breach setting
forth with specificity the nature of the breach; or
(v)
any failure by Westport to obtain the assumption of this Agreement
by any successor (by merger, consolidation or otherwise) or assign
of Westport.
g. “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.
h. “Qualifying
Termination” shall mean (i) a termination by the
Employee of the Employee’s employment with Westport for Good
Reason within one year after the occurrence of a Change in Control
or (ii) a termination of Employee’s employment without
Cause by Westport within one year after the occurrence of a Change
in Control, or (iii) a termination of Employee’s
employment without Cause by Westport within six (6) months
prior to the date of a Change in Control if the Employee reasonably
demonstrates that such termination (A) was at the request of a
third party who has indicated an intention or taken steps
reasonably calculated to effect a Change in Control or
(B) otherwise arose in connection with, or in anticipation of,
a Change in Control which has been threatened or proposed provided
that, in either case, a Change in Control shall actually have
occurred. Neither a termination of Employee’s employment due
to Disability nor a termination of Employee’s employment due
to death shall constitute a Qualifying Termination.
2. Term.
If a Change in Control has not occurred within five (5) years
of the date of this Agreement (the “Term”), this
Agreement shall automatically expire. Following the Term, this
Agreement may be renewed only by written agreement of the parties
for successive one-year periods. If a Qualifying Termination occurs
during the Term, this Agreement shall continue in full force and
effect and shall not terminate until the Employee shall have
received the severance compensation provided hereunder.
3. Payment
of Accrued Compensation upon a Qualifying Termination. If a
Qualifying Termination occurs, the Employee shall immediately be
paid all earned and accrued salary due and owing to the Employee,
any bonus compensation to the extent earned, vested deferred
compensation (other than pension plan or profit sharing plan
benefits, which will be paid in accordance with the applicable
plan), any benefits then due under any plans of Westport in which
the Employee is a participant, any accrued and unpaid vacation pay
and any appropriate business expenses incurred by
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the Employee in connection with
his or her duties, all to the date of termination (collectively,
“Accrued Compensation”). The Employee shall also be
entitled to the severance compensation described in
Section 4.
4. Severance
Compensation. The Employee shall be entitled to the following upon
a Qualifying Termination under the conditions set forth
below:
(a) Condition
to Payment of Severance Compensation. Upon the Employee’s
execution of a “Release and Confidentiality Agreement”
substantially in the form attached hereto as Exhibit A,
Westport shall pay to the Employee severance compensation in an
aggregate amount equal to three times the sum of the
Employee’s base salary and the Bonus Amount (the
“Severance Amount”).
(b) Computation
and Payment of Severance Amount. The Severance Amount shall be
computed by using the higher of the salary paid to the Employee:
(a) immediately preceding the Change in Control, or (b )
immediately preceding the Employee’s Qualifying Termination.
The Severance Amount shall be paid without prejudice to the
Employee’s right to receive all Accrued Compensation. The
Severance Amount shall be paid to the Employee in a lump sum within
thirty (30) days of the execution of the Release and
Confidentiality Agreement. The Severance Amount shall be paid
irrespective of the Employee’s employment status with any
other organization or self-employment; provided, however, that if
the Employee should violate the terms of the Release and
Confidentiality Agreement, Westport shall be under no further
obligation to continue the payments or benefits
hereunder.
(c) Certain
Welfare Benefits. For a number of months equal to
