-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, EUCyexgrlfCutGOJdKFR9M5WRv9HWWz/ob7BwEeCxh4hs/uufablpN1MRDdD4rJp 1esnMPivdgldqo1UVv0+OQ== 0000911420-04-000113.txt : 20040510 0000911420-04-000113.hdr.sgml : 20040510 20040407163353 ACCESSION NUMBER: 0000911420-04-000113 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20040407 DATE AS OF CHANGE: 20040510 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: MEDICOR FOUNDATION CENTRAL INDEX KEY: 0001219012 IRS NUMBER: 000000000 STATE OF INCORPORATION: N2 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A MAIL ADDRESS: STREET 1: C/O JURA TRUST AG CITY: MITTELDORG LIECHTENSTEIN STATE: N2 ZIP: 9999999999 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: WESTPORT RESOURCES CORP /NV/ CENTRAL INDEX KEY: 0000889005 STANDARD INDUSTRIAL CLASSIFICATION: CRUDE PETROLEUM & NATURAL GAS [1311] IRS NUMBER: 133869719 STATE OF INCORPORATION: NV FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-54201 FILM NUMBER: 04722626 BUSINESS ADDRESS: STREET 1: 1670 BROADWAY STREET 2: SUITE 2800 CITY: DENVER STATE: CO ZIP: 80202 BUSINESS PHONE: 303-573-5404 MAIL ADDRESS: STREET 1: 1670 BROADWAY STREET 2: SUITE 2800 CITY: DENVER STATE: CO ZIP: 80202 FORMER COMPANY: FORMER CONFORMED NAME: BELCO OIL & GAS CORP DATE OF NAME CHANGE: 19960207 SC 13D 1 d956765.txt SCHEDULE 13D UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D UNDER THE SECURITIES EXCHANGE ACT OF 1934 (AMENDMENT NO. 4) WESTPORT RESOURCES CORPORATION (Formerly known as Belco Oil & Gas Corporation) ------------------------------------------------------------------------------- (Name of Issuer) COMMON STOCK, PAR VALUE $0.01 PER SHARE ------------------------------------------------------------------------------- (Title of Class of Securities) 961418100 ------------------------------------------------------------------------------- (CUSIP Number of Class of Securities) C/O HOWARD L. BOIGON WESTPORT RESOURCES CORPORATION 1670 BROADWAY STREET SUITE 2800 DENVER, COLORADO 80202 (303) 573-5404 ------------------------------------------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) Copy to: RICHARD M. PETKUN, ESQ. GREENBERG TRAURIG, LLP 1200 17TH STREET, SUITE 2400 DENVER, COLORADO 80202 (303) 572-6500 APRIL 6, 2004 ------------------------------------------------------------------------------- (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a Statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D and is filing this Schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box. [ ] (continued on following pages) (Page 1 of 9 Pages) - -------------------------------------------------------------------------------- CUSIP No. 961418100 13D Page 2 of 9 Pages - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- 1. NAME OF REPORTING PERSON: MEDICOR FOUNDATION S.S. OR I.R.S. IDENTIFICATION No. OF ABOVE PERSON: - -------------------------------------------------------------------------------- 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [X] - -------------------------------------------------------------------------------- 3. SEC USE ONLY - -------------------------------------------------------------------------------- 4. SOURCE OF FUNDS OO (SEE ITEM 3) - -------------------------------------------------------------------------------- 5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [ ] - -------------------------------------------------------------------------------- 6. CITIZENSHIP OR PLACE OF ORGANIZATION LIECHTENSTEIN - -------------------------------------------------------------------------------- NUMBER OF 7. SOLE VOTING POWER SHARES 9,700,000 SHARES (SEE ITEM 5) --------------------------------------------------- BENEFICIALLY 8. SHARED VOTING POWER OWNED BY -0- SHARES (SEE ITEM 5) --------------------------------------------------- EACH REPORTING 9. SOLE DISPOSITIVE POWER PERSON 9,700,000 SHARES (SEE ITEM 5) --------------------------------------------------- WITH 10. SHARED DISPOSITIVE POWER -0- (SEE ITEM 5) - -------------------------------------------------------------------------------- 11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 9,700,000 SHARES (SEE ITEM 5) - -------------------------------------------------------------------------------- 12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ] - -------------------------------------------------------------------------------- 13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 14.3% (SEE ITEM 5) - -------------------------------------------------------------------------------- 14. TYPE OF REPORTING PERSON OO (Page 2 of 9 Pages) SCHEDULE 13D This Amendment No. 4 relates to the Schedule 13D originally filed on behalf of the reporting person with the Securities and Exchange Commission on February 18, 2003, as amended by Amendment No. 1 filed on October 6, 2003, Amendment No. 2 filed on December 12, 2003, and Amendment No. 3, filed on December 22, 2003. The text of Items 2, 4, 5, 6 and 7 of said Schedule 13D is hereby amended as follows. ITEM 2. IDENTITY AND BACKGROUND Item 2 is hereby amended by replacing the text thereof in its entirety with the following: This Schedule 13D is being filed by Medicor Foundation, a Liechtenstein foundation ("Medicor"). Medicor is a charitable organization that supports the establishment, maintenance, and furtherance of medical, educational, humanitarian and cultural organizations, institutions, and other entities. The address of Medicor's principal office is Landstrasse 11, Postfach 130, FL 9495 Triesen, Liechtenstein. All voting decisions with respect to the shares of the Issuer are made by the Medicor's Foundation Council. The Foundation Council consists of Ursula Haas, Prince Eugen von Liechtenstein, Anton M. Lotzer, Albin A. Johann, Hommy Khosrowpanah and Hans Gassner. Mr. Lotzer is the Chief Executive Officer of Medicor, Ms. Haas is the President of Medicor, Prince Eugen von Liechtenstein is the Vice-President of Medicor, and Mr. Johann is the Secretary of Medicor. Each member of the Foundation Council and each of the Chief Executive Officer, President, Vice-President and Secretary of Medicor disclaims beneficial ownership of the shares of the Issuer held by Medicor. The address of Ms. Haas, Prince Eugen von Liechtenstein, and Messrs. Lotzer, Johann, Khosrowpanah and Gassner is c/o Medicor Foundation, Landstrasse 11, Postfach 130, FL 9495 Triesen, Liechtenstein. Each of Mrs. Haas and Mr. Khosrowpanah are British citizens. Each of Prince Eugen von Liechtenstein and Messrs. Lotzer and Gassner are citizens of the Principality of Liechtenstein. Mr. Johann is a citizen of Switzerland. Neither Medicor, any member of its Foundation Council, nor its Chief Executive Officer, President, Vice-President or Secretary, has, during the past five years, been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or been a party to a civil proceeding of a judicial or an administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws. ITEM 4. PURPOSE OF THE TRANSACTION Item 4 is hereby amended by inserting the following after the final paragraph thereof: On April 6, 2004, the Issuer, Kerr-McGee Corporation ("Parent") and Kerr-McGee (Nevada) LLC, a wholly owned subsidiary of Parent (the "Merger Subsidiary"), entered into an Agreement and Plan of Merger dated as of April 6, 2004 (the "Merger Agreement"), pursuant to which the Issuer agreed to merge with and into Merger Subsidiary (the "Merger"), with Merger Subsidiary being the surviving entity of the Merger. Upon the consummation of the Merger, (Page 3 of 9 Pages) each share of Issuer Common Stock will be cancelled and will be converted into the right to receive 0.71 shares of common stock of Parent, as set forth in the Merger Agreement. Simultaneously with the execution of the Merger Agreement, Medicor and Parent entered into a Voting Agreement dated as of April 6, 2004 (the "Merger Voting Agreement"), pursuant to which Medicor has agreed that, while the agreement is in effect, it will vote (or cause to be voted) all of its shares of Issuer Common Stock (and any other shares of capital stock of the Issuer acquired while the agreement is in effect) (the "Subject Shares"), at every annual, special or other meeting of the stockholders of the Issuer, and at any adjournment or adjournments thereof, or pursuant to any consent in lieu of a meeting or otherwise: (1) in favor of the Merger, the adoption of the Merger Agreement, the approval of all other transactions contemplated by the Merger Agreement, and any actions required in furtherance thereof, (2) against any action or agreement that Medicor would reasonably expect to result in a breach in any material respect of any covenant, representation or warranty or any other obligation of the Issuer under the Merger Agreement, and (3) against any extraordinary transaction (such as a merger, rights offering, reorganization, recapitalization or liquidation, other than the Merger), a sale or transfer of a material portion of assets or capital stock of the Issuer or any of its subsidiaries, or any other action that is intended or would reasonably be expected to prevent or materially delay or otherwise interfere with the Merger and the other transactions contemplated by the Merger Agreement. Under the Merger Voting Agreement, Medicor also granted Parent an irrevocable proxy to vote the Subject Shares of Issuer Common Stock in accordance with the terms of the Merger Voting Agreement. The Merger Voting Agreement also prohibits Medicor from (a) selling, transferring, pledging, encumbering, assigning or otherwise disposing of, or entering into any contract, option or other arrangement or understanding with respect to the disposition of, Subject Shares or any interest contained therein (other than as contemplated by the Merger Agreement), except for transfers to other stockholders of the Issuer who are parties to a substantially identical voting agreement, or to any other person or entity that, prior to or coincident with such transfer, executes a substantially identical voting agreement, (b) granting any proxy or powers of attorney or entering into any voting agreement or other arrangement with respect to the Subject Shares other than the Merger Voting Agreement, (c) entering into, or depositing Subject Shares into, a voting trust or taking any other action that would or could reasonably be expected to result in a diminution of the voting power represented by any of such shares, or (d) committing or agreeing to take any of the foregoing actions. The Merger Voting Agreement, and the proxy granted thereunder, will terminate and cease to have any force or effect on the earlier of (i) the termination of the Merger Agreement in accordance with its terms, (ii) the written agreement of the parties to the Merger Voting Agreement, (iii) the consummation of the Merger, (iv) the amendment of the Merger Agreement to reduce the exchange ratio of Issuer Common Stock for shares of common stock of Parent or to otherwise change the consideration to be received by Medicor in the Merger in a manner adverse to Medicor unless Medicor has consented to in writing prior to or simultaneously with the amendment and (v) if the Merger has not been consummated by October 31, 2004, notice at any time thereafter from either party has been given to the other party of such party's election to terminate the Merger Voting Agreement (provided, however, that the right to terminate pursuant to this clause (v) shall not be available to any party that is in breach in any material respect of its obligations under the Merger Voting Agreement). Each of EQT Investments, LLC, the (Page 4 of 9 Pages) successor-in-interest to ERI Investments, Inc. ("EQT"), Westport Energy LLC ("WELLC") and certain other stockholders of the Issuer (the "Belfer Group") have entered into voting agreements with Parent that are substantially identical to the Merger Voting Agreement. In addition, simultaneously with the execution of the Merger Agreement, the Issuer, EQT, WELLC, Medicor and the Belfer Group entered into (a) a Termination Agreement dated as of April 6, 2004 (the "New Termination Agreement"), pursuant to which the existing Termination and Voting Agreement and Registration Rights Agreement, each dated as of October 1, 2003, among the Issuer, EQT, WELLC, Medicor and the Belfer Group will each terminate and be of no further force and effect, effective on the closing of the Merger, and (b) a Registration Rights Agreement, dated as of April 6, 2004 (the "New Registration Rights Agreement"), pursuant to which Parent agreed to give Medicor, WELLC and EQT certain registration rights with respect to their shares of Parent common stock received in the Merger, as set forth in the New Registration Rights Agreement. The descriptions of the Merger Voting Agreement, the New Termination Agreement and the New Registration Rights Agreement are qualified in their entirety by reference to the applicable agreements, which are attached hereto as Exhibits 10.9, 10.10 and 10.11, respectively. ITEM 5. INTEREST IN SECURITIES OF THE ISSUER Items 5(a), (b) and (c) are each hereby amended by replacing the text thereof in its entirety with the following: (a) The aggregate number of shares of Issuer Common Stock of which Medicor may be deemed to be the beneficial owner is 9,700,000 shares. Such 9,700,000 shares represent approximately 14.3% of the shares of Issuer Common Stock deemed to be outstanding as of April 6, 2004. Such percentage ownership is based on 67,716,290 shares of Issuer Common Stock outstanding, as reported on the Issuer's Annual Report on Form 10-K filed on March 5, 2004. Each member of the Foundation Council and each of the Chief Executive Officer, President, Vice-President and Secretary of Medicor disclaims beneficial ownership of the Issuer Common Stock held by Medicor. (b) Medicor has the sole power to vote or dispose of 9,700,000 shares of Issuer Common Stock. Neither the members of the Foundation Council nor the Chief Executive Officer, President, Vice-President or Secretary of Medicor have the sole power, or shared power, to vote or dispose of the shares of Issuer Common Stock held by Medicor. Because Medicor is a party to the Termination and Voting Agreement, Medicor may be deemed to own an additional 18,557,463 shares of Issuer Common Stock which are owned by the other parties to that agreement, based on the number of shares of Issuer Common Stock reported as beneficially owned by such other parties on the most recent amendment to Schedule 13D filed by each such party. Medicor disclaims beneficial ownership of all such shares. (c) Other than as described in Item 4, neither Medicor, any member of its Foundation Council, nor its Chief Executive Officer, President, Vice-President or Secretary has effected any transactions in Issuer Common Stock during the past 60 days. (Page 5 of 9 Pages) ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO THE SECURITIES OF THE ISSUER Item 6 is hereby amended by inserting the following after Item 6(g): The information provided in response to Item 4 of Amendment No. 4 to this Schedule 13D is hereby incorporated herein by reference. ITEM 7. MATERIAL TO BE FILED AS EXHIBITS Item 7 is hereby amended by replacing the last two paragraphs thereof with the following: 10.7 Termination and Voting Agreement, dated as of October 1, 2003, by and among Westport Resources Corporation, Westport Energy LLC, ERI Investments, Inc., Medicor Foundation and certain other shareholders named therein (incorporated by reference from Exhibit 10.7 of Amendment No. 1 to Schedule 13D filed with the Securities and Exchange Commission on October 6, 2003). 10.8 Registration Rights Agreement, dated as of October 1, 2003, by and among Westport Resources Corporation, Westport Energy LLC, ERI Investments, Inc., Medicor Foundation and certain other shareholders named therein (incorporated by reference from Exhibit 10.8 of Amendment No. 1 to Schedule 13D filed with the Securities and Exchange Commission on October 6, 2003). Item 7 is hereby further amended by inserting the following after the final paragraph thereof: 10.9* Voting Agreement, dated as of April 6, 2004, by and between Medicor Foundation and Kerr-McGee Corporation (filed herewith). 10.10* Termination Agreement, dated as of April 6, 2004, by and among Westport Resources Corporation, Westport Energy LLC, EQT Investments, LLC, Medicor Foundation and the other shareholders named therein (filed herewith). 10.11* Registration Rights Agreement, dated as of April 6, 2004, by and among Westport Resources Corporation, Westport Energy LLC, EQT Investments, LLC, Medicor Foundation and the other shareholders named therein (filed herewith). (Page 6 of 9 Pages) SIGNATURE After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. Dated: April 7, 2004 MEDICOR FOUNDATION By: /s/Anton M. Lotzer --------------------------------------- Name: Anton M. Lotzer Title: CEO By: /s/Albin J. Johann --------------------------------------- Name: Albin J. Johann Title: Secretary (Page 7 of 9 Pages) EXHIBIT NUMBER DESCRIPTION _________ _____________ 10.1 Third Amended and Restated Shareholders Agreement dated as of February 14, 2003, among Westport Resources Corporation, ERI Investments, Inc., Westport Energy LLC, Medicor Foundation and certain other stockholders named therein (incorporated by reference from Exhibit 10.1 of Schedule 13D filed with the Securities and Exchange Commission on February 14, 2003). 10.2 Contribution Agreement dated February 14, 2003, among Westport Energy LLC, Westport Investments Limited, and Medicor Foundation (incorporated by reference from Exhibit 10.2 of Schedule 13D filed with the Securities and Exchange Commission on February 14, 2003). 10.3 Letter Agreement dated February 14, 2003 between Westport Investments Limited and Medicor Foundation (incorporated by reference from Exhibit 10.3 of Schedule 13D filed with the Securities and Exchange Commission on February 14, 2003). 10.4 Lock-Up Letter Agreement among Westport Energy LLC, Lehman Brothers Inc., Credit Suisse First Boston Corporation and JP Morgan Securities Inc (incorporated by reference from Exhibit 10.4 of Schedule 13D filed with the Securities and Exchange Commission on February 14, 2003). 10.5 Letter dated February 14, 2003 from Lehman Brothers Inc. to Westport Energy LLC (incorporated by reference from Exhibit 10.5 of Schedule 13D filed with the Securities and Exchange Commission on February 14, 2003). 10.6 Letter Agreement dated February 14, 2003 between Medicor Foundation and Lehman Brothers Inc (incorporated by reference from Exhibit 10.6 of Schedule 13D filed with the Securities and Exchange Commission on February 14, 2003). 10.7 Termination and Voting Agreement, dated as of October 1, 2003, by and among Westport Resources Corporation, Westport Energy LLC, ERI Investments, Inc., Medicor Foundation and certain other shareholders named therein (incorporated by reference from Exhibit 10.7 of Amendment No. 1 to Schedule 13D filed with the Securities and Exchange Commission on October 6, 2003). 10.8 Registration Rights Agreement, dated as of October 1, 2003, by and among Westport Resources Corporation, Westport Energy LLC, ERI Investments, Inc., Medicor Foundation and certain other shareholders named therein (incorporated by reference from Exhibit 10.8 of (Page 8 of 9 Pages) Amendment No. 1 to Schedule 13D filed with the Securities and Exchange Commission on October 6, 2003). 10.9* Voting Agreement dated as of April 6, 2004, by and between Medicor Foundation and Kerr-McGee Corporation (filed herewith). 10.10* Termination Agreement, dated as of April 6, 2004, by and among Westport Resources Corporation, Westport Energy LLC, EQT Investments, LLC, Medicor Foundation and the other shareholders named therein (filed herewith). 10.11* Registration Rights Agreement, dated as of April 6, 2004, by and among Westport Resources Corporation, Westport Energy LLC, EQT Investments, LLC, Medicor Foundation and the other shareholders named therein (filed herewith). *filed herewith (Page 9 of 9 Pages) EX-10 3 e957029.txt EXH. 10.9 - VOTING AGREEMENT EXHIBIT 10.9 VOTING AGREEMENT, dated as of April 6, 2004 (the "Agreement"), among KERR-MCGEE CORPORATION, a Delaware corporation ("Parent"), and each of the stockholders listed on Schedule I to this Agreement (each, a "Stockholder" and, collectively, the "Stockholders"). -------------------------------------------------------------- INTRODUCTION Parent, Kerr-McGee (Nevada) LLC, a Nevada limited liability company and wholly owned subsidiary of Parent ("Merger Sub"), and Westport Resources Corporation, a Nevada corporation (the "Company"), propose to enter into an Agreement and Plan of Merger, dated as of the date hereof (as it may be amended or supplemented from time to time, the "Merger Agreement"), pursuant to which, upon the terms and subject to the conditions thereof, the Company will be merged with and into Merger Sub, and Merger Sub will be the surviving entity (the "Merger"). As of the date hereof, each Stockholder is the record and beneficial owner of, or in the case of a Stockholder that is a trust (the "Trust Stockholder"), such Trust Stockholder is the record holder of, and its beneficiaries are the beneficial owners of, the number of shares (the "Shares") of common stock, par value $.01 per share, of the Company (the "Company Common Stock") set forth opposite such Stockholder's name on Schedule I attached hereto (such Shares, together with any other shares of capital stock of the Company acquired by such Stockholder after the date hereof and during the term of this Agreement (including through the exercise of any stock options, warrants, 6 1/2% convertible preferred stock, par value $.01 per share, of the Company or any other convertible or exchangeable securities or similar instruments), being collectively referred to herein as such Stockholder's "Subject Shares"). As a condition to its willingness to enter into the Merger Agreement, Parent has required that each Stockholder agree, and each Stockholder is willing to agree, to the matters set forth herein. In consideration of the foregoing and the agreements set forth below, the parties hereto agree as follows: Section 1. Defined Terms. Capitalized terms used but not defined herein have the meanings set forth in the Merger Agreement. Section 2. Voting of Shares. (a) Voting. For so long as this Agreement is in effect, each Stockholder hereby agrees to vote (or cause to be voted) all of such Stockholder's Subject Shares, at every annual, special or other meeting of the stockholders of the Company, and at any adjournment or adjournments thereof, or pursuant to any consent in lieu of a meeting or otherwise: (i) in favor of the Merger and the adoption of the Merger Agreement and the approval of the other transactions contemplated thereby, and any actions required in furtherance thereof; (ii) against any action or agreement that such Stockholder would reasonably expect to result in a breach in any material respect of any covenant, representation or warranty or any other obligation of the Company under the Merger Agreement; and (iii) against (A) any extraordinary corporate transaction, such as a merger, rights offering, reorganization, recapitalization or liquidation involving the Company or any of its subsidiaries (other than the Merger), (B) a sale or transfer of a material amount of assets or capital stock of the Company or any of its subsidiaries or (C) any action that is intended, or would reasonably be expected, to prevent or materially delay or otherwise interfere with the Merger and the other transactions contemplated by the Merger Agreement. (b) Grant of Irrevocable Proxy. Such Stockholder hereby irrevocably grants to, and appoints, Parent and any individual who shall hereafter be designated by Parent, and each of them, such Stockholder's proxy and attorney-in-fact (with full power of substitution), for and in the name, place and stead of such Stockholder, to vote, or cause to be voted, such Stockholder's Subject Shares, or grant a consent or approval in respect of such Stockholder's Subject Shares, at every annual, special or other meeting of the stockholders of the Company, and at any adjournment or adjournments thereof, or pursuant to any consent in lieu of a meeting or otherwise, with respect to the matters and in the manner specified in Section 2(a) hereof; provided that the foregoing proxy shall terminate immediately upon termination of this Agreement in accordance with its terms. Each Stockholder understands and acknowledges that Parent is entering into the Merger Agreement in reliance upon the Stockholders' execution and delivery of this Agreement. Each Stockholder hereby affirms that the irrevocable proxy set forth in this Section 2(b) is given in connection with the execution of the Merger Agreement, and that such irrevocable proxy is given to secure the performance of the duties of such Stockholder under this Agreement. Subject to this Section 2(b), this grant of proxy is coupled with an interest and may under no circumstances be revoked. Each Stockholder hereby ratifies and confirms all that such irrevocable proxy may lawfully do or cause to be done in accordance herewith. Such irrevocable proxy is executed and intended to be irrevocable in accordance with the provisions of Section 78.355(5) of the Nevada Revised Statutes. Section 3. Fiduciary Responsibilities. No Stockholder executing this Agreement who is or becomes during the term hereof a director or officer of the Company makes (or shall be deemed to have made) any agreement or understanding herein in his or her capacity as such director or officer. Without limiting the generality of the foregoing, each Stockholder signs solely in his, her or its capacity as the record and/or beneficial owner, as applicable, of such Stockholder's Subject Shares and nothing herein shall limit or affect any actions taken by such Stockholder (or a designee of such Stockholder) in his or her capacity as an officer or director of the Company in exercising his or her or the Company's or the Company's Board of Directors' rights in connection with the Merger Agreement or otherwise and such actions shall not be deemed to be a breach of this Agreement. Section 4. Representations and Warranties of Stockholder. Each Stockholder, severally and not jointly, represents and warrants to Parent as follows: (a) Binding Agreement. Such Stockholder has the capacity to execute and deliver this Agreement and to consummate the transactions contemplated hereby. Such Stockholder has -2- duly and validly executed and delivered this Agreement and this Agreement constitutes a legal, valid and binding obligation of such Stockholder, enforceable against such Stockholder in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization or other similar laws affecting creditors' rights generally and by general equitable principles (regardless of whether enforceability is considered in a proceeding in equity or at law). (b) No Conflict. Neither the execution and delivery of this Agreement by such Stockholder, nor the performance by such Stockholder of its obligations hereunder will, (i) require any consent, approval, authorization or permit of, registration, declaration or filing (except for such filings as may be required under the federal securities laws or the Hart-Scott-Rodino Antitrust Improvement Act of 1976, as amended, and the rules and regulations thereunder (the "HSR Act") or as would not reasonably be expected to prevent, materially delay or otherwise materially impair such Stockholder's ability to perform its obligations hereunder) with, or notification to, any governmental entity, (ii) if such Stockholder is an entity, result in a violation of, or default under, or conflict with any provision of its certificate of incorporation, bylaws, partnership agreement, limited liability company agreement or similar organizational documents, (iii) result in a violation or breach of, or constitute (with or without due notice or lapse of time or both) a default (or give rise to any right of termination, cancellation, or acceleration) under any contract, trust, agreement, instrument, commitment, arrangement or understanding applicable to such Stockholder or such Stockholder's Subject Shares, or result in the creation of a security interest, lien, charge, encumbrance, equity or claim with respect to any of such Stockholder's Subject Shares, except, in the case of clause (iii), as would not reasonably be expected to prevent, materially delay or otherwise materially impair such Stockholder's ability to perform its obligations hereunder, (iv) require any consent, authorization or approval of any Person other than a governmental entity, except, in the case of clause (iv), as would not reasonably be expected to prevent, materially delay or otherwise materially impair such Stockholder's ability to perform its obligations hereunder or (v) violate or conflict with any order, writ, injunction, decree, rule, regulation or law applicable to such Stockholder or such Stockholder's Subject Shares. If such Stockholder is a married individual and such Stockholder's Subject Shares constitute community property or otherwise need spousal approval in order for this Agreement to be a legal, valid and binding obligation of such Stockholder, this Agreement has been duly authorized, executed and delivered by, and constitutes a legal, valid and binding obligation of, such Stockholder's spouse, enforceable against such spouse in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization or other similar laws affecting creditors' rights generally and by general equitable principles (regardless of whether enforceability is considered in a proceeding in equity or at law). (c) Ownership of Shares. Such Stockholder is the record and beneficial owner of, or in the case of the Trust Stockholder, such Trust Stockholder is the record holder of, and its beneficiaries are the beneficial owners of, the Shares set forth opposite such Stockholder's name on Schedule I attached hereto free and clear of any security interests, liens, charges, encumbrances, equities, claims, options or limitations of whatever nature and free of any other limitation or restriction (including any restriction on the right to vote, sell or otherwise dispose of such Shares), except as provided by that certain Termination and Voting Agreement, dated as of October 1, 2003, by and among the Company, Medicor Foundation, Westport Energy LLC, ERI -3- Investments, Inc. and certain stockholders named therein (the "Termination and Voting Agreement"). There are no outstanding options or other rights to acquire from such Stockholder, or obligations of such Stockholder to sell or to dispose of, any shares of Company Common Stock, and none of such Stockholder's Subject Shares are subject to vesting. Except as provided in the Termination and Voting Agreement and in Section 2 hereof, such Stockholder holds exclusive power to vote the Shares set forth opposite such Stockholder's name on Schedule I attached hereto. As of the date of this Agreement, the Shares set forth opposite such Stockholder's name on such Schedule I attached hereto represent all of the shares of capital stock of the Company owned (beneficially or of record) by such Stockholder, except shares of Company Common Stock which may be acquired by such Stockholder upon exercise of options, if any, or conversion of the Convertible Preferred Stock, if any, held by such Stockholder as set forth in such Schedule. (d) Broker Fees. No broker, investment banker, financial advisor or other person is entitled to any broker's, finder's, financial advisor's or other similar fee or commission based upon arrangements made by or on behalf of such Stockholder in connection with its entering into this Agreement. Section 5. Representations and Warranties of Parent. Parent represents and warrants to the Stockholders as follows: (a) Binding Agreement. Parent is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware and has full corporate power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby. The execution and delivery of this Agreement by Parent and the consummation of the transactions contemplated hereby have been duly and validly authorized by the Board of Directors of Parent, and no other corporate proceedings on the part of Parent are necessary to authorize the execution, delivery and performance of this Agreement by Parent and the consummation of the transactions contemplated hereby (except as described in Section 4.2 of the Merger Agreement). Parent has duly and validly executed this Agreement and this Agreement constitutes a legal, valid and binding obligation of Parent, enforceable against Parent in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization or other similar laws affecting creditors' rights generally and by general equitable principles (regardless of whether enforceability is considered in a proceeding in equity or at law). (b) No Conflict. Neither the execution and delivery by Parent of this Agreement, nor the performance by Parent of its obligations hereunder will, (i) require any consent, approval, authorization or permit of, registration, declaration or filing (except for such filings as may be required under the federal securities laws or the HSR Act or as would not reasonably be expected to prevent, materially delay or otherwise materially impair Parent's ability to perform its obligations hereunder) with, or notification to, any governmental entity, (ii) result in a violation of, or default under, or conflict with any provision of its Certificate of Incorporation or Bylaws, (iii) result in a violation or breach of, or constitute (with or without due notice or lapse of time or both) a default (or give rise to any right of termination, cancellation, or acceleration) under any contract, trust, agreement, instrument, commitment, arrangement or understanding applicable to Parent, except, in the case of clause (iii), as would not reasonably be expected to prevent, -4- materially delay or otherwise materially impair Parent's ability to perform its obligations hereunder, (iv) require any consent, authorization or approval of any Person other than a governmental entity, except, in the case of clause (iv), as would not prevent, materially delay or otherwise materially impair such Parent's ability to perform its obligations hereunder or (v) violate or conflict with any order, writ, injunction, decree, rule, regulation or law applicable to Parent. Section 6. Transfer and Other Restrictions. For so long as this Agreement is in effect: (a) Certain Prohibited Transfers. Each Stockholder agrees not to: (i) sell, transfer, pledge, encumber, assign or otherwise dispose (collectively, the "Transfer") of, or enter into any contract, option or other arrangement or understanding with respect to the Transfer of, such Stockholder's Subject Shares or any interest contained therein (other than, if the transactions contemplated by the Merger Agreement are consummated, by operation of law in the Merger), except that any such Stockholder may Transfer any of the Subject Shares to any other holder of Company Common Stock who is on the date hereof a party to this Agreement or other voting agreement with Parent on terms substantially identical to the terms of this Agreement, or to any other person or entity that, prior to or coincident with such Transfer, executes a voting agreement with Parent on terms substantially identical to the terms of this Agreement; (ii) grant any proxies or powers of attorney or enter into a voting agreement or other arrangement with respect to such Stockholder's Subject Shares, other than this Agreement; (iii) enter into, or deposit such Stockholder's Subject Shares into, a voting trust or take any other action which would, or could reasonably be expected to, result in a diminution of the voting power represented by any of such Stockholder's Subject Shares; nor (iv) commit or agree to take any of the foregoing actions; provided, however, that the restrictions in this Section 6 shall not be deemed violated by any Transfer of Subject Shares pursuant to a cashless exercise of options to acquire Shares so long as the Shares issuable upon exercise thereof become such Stockholder's Subject Shares hereunder. (b) Efforts. For so long as this Agreement is in effect, each Stockholder agrees not to take any action which would make any representation or warranty of such Stockholder herein untrue or incorrect in any material respect or knowingly take any action that would have the effect of preventing or disabling it from performing its obligations under this Agreement. Subject to Section 3 hereof, for so long as this Agreement is in effect, each Stockholder shall use such Stockholder's reasonable efforts to take, or cause to be taken, all actions (including executing and delivering such additional documents) and do, or cause to be done, and to assist and cooperate with the other parties hereto in doing, all things, in each case, as may reasonably be deemed by Parent to be necessary or desirable to carry out the provisions of this Agreement. -5- (c) Additional Shares. In the event (i) of any stock dividend, stock split, recapitalization, reclassification, combination or exchange of shares of capital stock of the Company on, of or affecting any Stockholder's Subject Shares or (ii) any Stockholder becomes the beneficial owner of any additional shares of Company Common Stock or other securities entitling the holder thereof to vote or give consent with respect to the matters set forth in Section 2(a) hereof, then the terms of this Agreement shall apply to the shares of capital stock or other securities of the Company held by such Stockholder immediately following the effectiveness of the events described in clause (i) or such Stockholder becoming the beneficial owner thereof, as described in clause (ii), as though they were such Stockholder's Subject Shares hereunder. Each Stockholder hereby agrees, while this Agreement is in effect, to notify Parent of the number of any new shares of Company Common Stock acquired by such Stockholder, if any, after the date hereof. Section 7. [RESERVED]. Section 8. No Solicitation. For so long as this Agreement is in effect, no Stockholder shall, nor shall such Stockholder permit any investment banker, attorney or other advisor or representative of the Stockholder to, directly or indirectly through another Person, solicit, initiate or encourage, or take any other action to facilitate, any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Takeover Proposal; provided that any action which is permitted by the Merger Agreement to be taken by a stockholder in his or her capacity as a director or officer or which is permitted by Section 3 hereof shall not be prohibited by the foregoing. Section 9. Affiliate Agreement. If, at the time the Merger Agreement is submitted for adoption to the stockholders of the Company, any Stockholder is an "affiliate" of the Company for purposes of Rule 145 under the Securities Act and applicable SEC rules and regulations, such Stockholder shall deliver to Parent at least 30 days prior to the Closing Date a written agreement substantially in the form attached as Exhibit B to the Merger Agreement. Section 10. Specific Enforcement. The parties hereto agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with the terms hereof or were otherwise breached and that the non-breaching party shall be entitled to specific performance of the terms hereof in addition to any other remedy which may be available at law or in equity. It is accordingly agreed that the non-breaching party will be entitled to an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement in any state or federal court located in New York, New York, Borough of Manhattan, the foregoing being in addition to any other remedy to which they are entitled at law or in equity. In addition, each of the parties hereto (i) consents to submit itself to the personal jurisdiction of any state or federal court located in New York, New York, Borough of Manhattan, in the event any dispute arises out of this Agreement or any of the transactions contemplated by this Agreement, (ii) agrees that it will not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from any such court, and (iii) agrees that it will not bring any action relating to this Agreement or any of the transactions contemplated by this Agreement in any court other than a state or federal court located in New York, New York, Borough of Manhattan. -6- Section 11. Termination. This Agreement shall terminate and cease to have any force or effect on the earliest of (i) the termination of the Merger Agreement in accordance with its terms, (ii) the written agreement of the parties hereto to terminate this Agreement, (iii) the consummation of the Merger, (iv) the amendment of the Merger Agreement to decrease the Exchange Ratio or otherwise alter the Merger Consideration in a manner adverse to the Stockholders unless such amendment has been consented to by the Stockholders in writing prior to or simultaneously with such amendment, and (v) if the Merger has not been consummated by October 31, 2004, notice at any time thereafter from any party hereto to the other parties of such party's election to terminate this Agreement (provided, however, that the right to terminate this Agreement pursuant to this clause (v) shall not be available to any party that is in breach in any material respect of its obligations hereunder); provided, however, that (1) Sections 10, 12, 13, 14, 15, 16, 17, 18, 19 and 20 shall survive any termination of this Agreement and (2) termination of this Agreement shall not relieve any party from liability for any breach of its obligations hereunder committed prior to such termination. Section 12. Notices. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given if delivered personally, mailed by certified mail (return receipt requested) or sent by overnight carrier or by telecopier (upon confirmation of receipt) to the parties at the following addresses or at such other as shall be specified by the parties by like notice: (i) if to Parent or the Company, to the appropriate address set forth in Section 9 of the Merger Agreement; and (ii) if to a Stockholder, to the appropriate address set forth on Schedule I hereto. Section 13. Certain Events. Each Stockholder agrees that this Agreement and the obligations hereunder shall attach to such Stockholder's Subject Shares and shall be binding upon any person or entity to which legal or beneficial ownership of such Stockholder's Subject Shares shall pass, whether by operation of law or otherwise, including such Stockholder's heirs, guardians, administrators or successors. Section 14. Entire Agreement. This Agreement (including the documents and instruments referred to herein) constitutes the entire agreement and supersedes all other prior agreements and understandings, both written and oral, among the parties, or any of them, with respect to the subject matter hereof. Section 15. Amendment. This Agreement may not be modified, amended, altered or supplemented except upon the execution and delivery of a written agreement executed by the parties hereto; provided that, with respect to the obligations of any individual Stockholder under this Agreement, this Agreement may be amended with the approval of such Stockholder and Parent notwithstanding the failure to obtain the approval of other Stockholders. Section 16. Successors and Assigns. This Agreement shall not be assigned by operation of law or otherwise without the prior written consent of the other parties hereto, except as expressly provided by Section 6(a). This Agreement will be binding upon, inure to the benefit of and be enforceable by each party and such party's heirs, beneficiaries, executors, successors, representatives and permitted assigns. -7- Section 17. Counterparts. This Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, and delivered by means of facsimile transmission or otherwise, each of which when so executed and delivered shall be deemed to be an original and all of which when taken together shall constitute one and the same agreement. Section 18. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED IN ALL RESPECTS, INCLUDING VALIDITY, INTERPRETATION AND EFFECT, BY THE LAWS OF THE STATE OF NEW YORK (WITHOUT GIVING EFFECT TO THE PROVISIONS THEREOF RELATING TO CONFLICTS OF LAW), OTHER THAN TO THE EXTENT NEVADA LAW GOVERNS THE MERGER ITSELF. Section 19. Severability. If any provision of this Agreement shall be held to be illegal, invalid or unenforceable under any applicable law, then such contravention or invalidity shall not invalidate the entire Agreement. Such provision shall be deemed to be modified to the extent necessary to render it legal, valid and enforceable, and if no such modification shall render it legal, valid and enforceable, then this Agreement shall be construed as if not containing the provision held to be invalid, and the rights and obligations of the parties shall be construed and enforced accordingly. Section 20. Headings. The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. -8- IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be signed, individually or by its respective officer thereunto duly authorized, as of the date first written above. KERR-MCGEE CORPORATION By:____________________________________ Name: Gregory F. Pilcher Title: Senior VP, General Counsel and Corporate Secretary MEDICOR FOUNDATION: By:____________________________________ Name: Anton M. Lotzer Title: CEO By:____________________________________ Name: Albin J. Johann Title: Secretary -9- SCHEDULE I TO VOTING AGREEMENT
----------------------------------- ------------------------------ -------------------- ----------------------- NUMBER OF OPTIONS NUMBER OF SHARES OF NUMBER OF SHARES OF COMPANY TO ACQUIRE COMPANY CONVERTIBLE PREFERRED NAME AND ADDRESS OF STOCKHOLDER COMMON STOCK COMMON STOCK STOCK ----------------------------------- ------------------------------ -------------------- ----------------------- Medicor Foundation 9,700,000 0 0
If to Medicor: Medicor Foundation Landstrasse 11 Postfach 130 9495 Triesen Liechtenstein Attention: Anton M. Lotzer Fax Number: (423) 233-3934 Phone Number: (423) 239-6050 With a copy to: Richard M. Petkun Greenberg Traurig, LLP 1200 17th Street, Suite 2400 Denver, CO 80202 Telephone: (303) 572-6500 Telecopy: (303) 572-6540 And to: Michael Russell Dr. Richard J. Haas Partners Dukes Court 32 Duke Street, St. James's London, SW1Y 6DF Fax Number: 020.7.321.5242 Phone Number: 020.7.321.5200 -10- EX-10 4 e957031.txt EXH. 10.10 - TERMINATION AGREEMENT EXHIBIT 10.10 TERMINATION AGREEMENT This Termination Agreement (this "Agreement"), dated as of April 6, 2004 (this "Agreement"), is entered into by and among Westport Resources Corporation, a Nevada corporation (the "Company"), Westport Energy LLC, a Delaware limited liability company ("WELLC"), EQT Investments, LLC, a Delaware limited liability company and successor-in-interest to ERI Investments, Inc. ("EQT"), Medicor Foundation, a Liechtenstein foundation formed pursuant to the Liechtenstein Persons and Companies Act ("Medicor"), and the persons and entities named on Exhibit A attached hereto (collectively, the "Belfer Group"). WELLC, EQT, Medicor and each member of the Belfer Group may be referred to herein individually as a "Stockholder Party" and collectively as the "Stockholder Parties". PRELIMINARY STATEMENTS The Company and the Stockholder Parties are parties to (i) that certain Termination and Voting Agreement (the "Old Voting Agreement") and (ii) that certain Registration Rights Agreement (the "Old Registration Rights Agreement"), each dated as of October 1, 2003 and attached as Exhibit B and Exhibit C hereto, respectively. Kerr-McGee Corporation, a Delaware corporation ("Parent"), Kerr-McGee (Nevada) LLC, a Nevada limited liability company and wholly-owned subsidiary of Parent ("Merger Sub"), and the Company propose to enter into an Agreement and Plan of Merger, dated as of the date hereof (as it may be amended or supplemented from time to time, the "Merger Agreement"), pursuant to which, upon the terms and subject to the conditions thereof, the Company will be merged with and into Merger Sub, and Merger Sub will be the surviving entity (the "Merger"). In connection with the Merger Agreement and the transactions contemplated thereby, Parent, certain of the Stockholder Parties and one or more other individuals are entering into one or more Voting Agreements, each dated as of the date hereof (as each may be amended or supplemented from time to time, the "New Voting Agreements"), pursuant to which, upon the terms and subject to the conditions thereof, each Stockholder Party and each such other individual agrees, among other things, to vote (or cause to be voted) their respective shares of the common stock of the Company in favor of the Merger and the adoption of the Merger Agreement. In connection with the Merger Agreement and the transactions contemplated thereby, Parent, EQT, WELLC and Medicor propose to enter into a Registration Rights Agreement, dated as of the date hereof (as it may be amended or supplemented from time to time, the "New Registration Rights Agreement"), pursuant to which, upon the terms and subject to the conditions thereof, Parent will grant certain registration rights to the other parties thereto with respect to such parties' respective shares of Parent common stock to be received in connection with the Merger. As a condition to its willingness to enter into the Merger Agreement and the New Registration Rights Agreement, Parent has required that the Company and each Stockholder Party agree, and such parties are willing to agree, to the matters set forth herein. NOW, THEREFORE, in consideration of the foregoing, and of the covenants and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows: STATEMENT OF AGREEMENT ARTICLE I TERMINATION OF AGREEMENTS Section 1.1 Termination of the Old Voting Agreement. Subject to Section 1.3 hereof, effective as of the Effective Time (as such term is defined in the Merger Agreement), the Old Voting Agreement shall terminate in its entirety and shall be of no further force or effect. Section 1.2 Termination of the Old Registration Rights Agreement. Subject to Section 1.3 hereof, effective as of the Effective Time (as such term is defined in the Merger Agreement), the Old Registration Rights Agreement shall terminate in its entirety and shall be of no further force or effect. Section 1.3. Effectiveness of this Agreement. In the event the Merger Agreement is terminated for any reason, this Agreement shall be null and void and of no further force or effect, and the Old Voting Agreement and the Old Registration Rights Agreement shall remain in full force and effect in accordance with their respective terms. ARTICLE II MISCELLANEOUS PROVISIONS Section 2.1 Notices. Any notice required to be given hereunder shall be sufficient if in writing, and sent by facsimile transmission and by courier service (with proof of service), hand delivery or certified or registered mail (return receipt requested and first-class postage prepaid), addressed as follows: If to the Belfer Group: Robert A. Belfer 767 Fifth Avenue, 46th Floor New York, New York 10153 Fax Number: (212) 644-2396 Phone Number: (212) 644-2200 With a copy to: Laurence D. Belfer 767 Fifth Avenue, 46th Floor New York, New York 10153 2 Fax Number: (212) 644-2396 Phone Number: (212) 644-0561 If to the Company: Donald D. Wolf Chairman and Chief Executive Officer 1670 Broadway, Suite 2800 Denver, CO. 80202 Fax Number: (303) 573-5609 Phone Number: (303) 573-5404 With a copy to: Akin Gump Strauss Hauer & Feld LLP 1700 Pacific Avenue, Suite 4100 Dallas, Texas 75201-4675 Attention: Michael E. Dillard, P.C. Fax Number: (214) 969-4343 Phone Number:(214) 969-2800 If to Medicor: Medicor Foundation Landstrasse 11 Postfach 130 9495 Triesen Liechtenstein Attention: Anton M. Lotzer Fax Number: (423) 233-3934 Phone Number: (423) 239-6050 With a copy to: Richard M. Petkun Greenberg Traurig, LLP 1200 17th Street, Suite 2400 Denver, CO 80202 Telephone: (303) 572-6500 Telecopy: (303) 572-6540 And to: Michael Russell Dr. Richard J. Haas Partners Dukes Court 32 Duke Street, St. James's London, SW1Y 6DF Fax Number: 020.7.321.5242 Phone Number: 020.7.321.5200 If to WELLC: Westport Energy LLC c/o Westport Investments Limited Lyford Manor 3 Lyford Cay P.O. Box N-7776 Nassau, Bahamas Fax Number: (242) 362-5788 With a copy to: Richard M. Petkun Greenberg Traurig, LLP 1200 17th Street, Suite 2400 Denver, CO 80202 Telephone: (303) 572-6500 Telecopy: (303) 572-6540 And to: Michael Russell Dr. Richard J. Haas Partners Dukes Court 32 Duke Street, St. James's London, SW1Y 6DF Fax Number: 020.7.321.5242 Phone Number: 020.7.321.5200 If to EQT Investments, LLC: EQT Investments, LLC 801 West Street, 2nd Floor Wilmington, DE 19801-1545 Attention: Treasurer Telephone: (302) 656-5590 Telecopy: (302) 428-1410 With a copy to: Johanna G. O'Loughlin Vice President, General Counsel and Secretary Equitable Resources, Inc. One Oxford Centre, Suite 3300 Pittsburgh, PA 15219 Telephone: (412) 553-7760 Telecopy: (412) 553-5970 And to: Stephen W. Johnson, Esquire Reed Smith LLP 435 Sixth Avenue Pittsburgh, PA 15219-1886 Telephone: (412) 288-3131 Telecopy: (412) 288-3063 Section 2.2 Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Nevada, regardless of the laws that might otherwise govern under applicable principles of conflicts of laws thereof. 4 Section 2.3 Counterparts. This Agreement may be executed in any number of counterparts and by different parties in separate counterparts, and delivered by means of facsimile transmission or otherwise, each of which when so executed and delivered shall be deemed to be an original and all of which when taken together shall constitute but one and the same agreement. Section 2.4 Parties in Interest; Assignment. This Agreement and all of the provisions hereof shall be binding upon and inure to the benefit of, and be enforceable by, the parties hereto and their respective heirs, beneficiaries, executors, successors, representatives and permitted assigns. This Agreement shall not be assigned by operation of law or otherwise without the prior written consent of the other parties hereto; provided, that any Stockholder Party may, by giving notice to the Company, assign its rights and obligations hereunder in connection with the sale, transfer or assignment of all but not less than all of the Common Stock it holds to a person (including a corporation, limited liability company, limited partnership or other entity) which controls, is controlled by or is under common control with such Stockholder Party. [SIGNATURE PAGES FOLLOW] 5 IN WITNESS WHEREOF, the parties hereto have executed this Termination Agreement and caused the same to be duly delivered on their behalf to be effective as of the date first written above. WESTPORT RESOURCES CORPORATION By:___________________________________ Name: Donald D. Wolf Title: Chairman and Chief Executive Officer WESTPORT ENERGY LLC By: WESTPORT INVESTMENTS LIMITED, its Managing Member By:___________________________________ Name: Robert A. Haas Title: Director EQT INVESTMENTS, LLC By:___________________________________ Name: Kenneth Kubacki Title: Vice President MEDICOR FOUNDATION By:___________________________________ Name: Anton M. Lotzer Title: CEO By:___________________________________ Name: Albin A. Johann Title: Secretary ______________________________________ Robert A. Belfer, individually THE ROBERT A. AND RENEE E. BELFER FAMILY FOUNDATION By:___________________________________ Name: Robert A. Belfer Title: Trustee and Donor BELFER CORP. By:___________________________________ Name: Robert A. Belfer Title: President RENEE HOLDINGS PARTNERSHIP, L.P. By:___________________________________ Name: Robert A. Belfer Title: General Partner LDB CORP. By:___________________________________ Name: Laurence D. Belfer Title: President ROBERT A. BELFER 1990 FAMILY TRUST By:___________________________________ Name: Laurence D. Belfer Title: Trustee VANTZ LIMITED PARTNERSHIP By: VANTZ LLC, its General Partner By:___________________________________ Name: Laurence D. Belfer Title: LDB TWO CORP. By:___________________________________ Name: Title: BELFER TWO CORP. By:___________________________________ Name: Title: LIZ PARTNERS, L.P. By: LIZ ASSOCIATES LLC, its General Partner By:___________________________ Name: Title: EXHIBIT A THE BELFER GROUP ------------------ Robert A. Belfer The Robert A. and Renee E. Belfer Family Foundation Belfer Corp. Renee Holdings Partnership, L.P. LDB Corp. Robert A. Belfer 1990 Family Trust Vantz Limited Partnership LDB Two Corp. Belfer Two Corp. Liz Partners, L.P. EX-10 5 e957033.txt EXH. 10.11 - REGISTRATION RIGHTS AGREEMENT EXHIBIT 10.11 REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated as of April 6, 2004, by and among KERR-MCGEE CORPORATION, a Delaware corporation ("Parent"), WESTPORT ENERGY LLC, a Delaware limited liability company ("WELLC"), MEDICOR FOUNDATION, a Liechtenstein foundation ("Medicor"), and EQT INVESTMENTS, LLC, a Delaware limited liability company and successor-in-interest to ERI Investments, Inc. ("EQT" and each of WELLC, Medicor and EQT, individually, a "Holder," and, collectively, the "Holders"). -------------------------------------------------------------- INTRODUCTION Each of the Holders will receive certain shares of Parent's common stock, par value $1 per share (the "Parent Common Stock"), in respect of the common stock of the Company, par value $.01 per share (the "Company Common Stock"), now beneficially owned by such Holder, upon the consummation of the merger of the Company with and into a wholly-owned subsidiary of Parent (the "Merger") pursuant to an Agreement and Plan of Merger, dated as of April 6, 2004 (the "Merger Agreement"), among the Company, Parent and such wholly-owned subsidiary of Parent. Each of the Holders and certain other stockholders of the Company are parties to a Registration Rights Agreement, dated as of October 1, 2003 (the "Company Registration Rights Agreement"). As a condition to its willingness to enter into the Merger Agreement, Parent has required that each of the Holders and the other stockholders of the Company that are parties to the Company Registration Rights Agreement agree, and each such Holder and other stockholder is willing to agree, to terminate in its entirety the Company Registration Rights Agreement effective as of the closing of the Merger. In connection the agreement to terminate the Company Registration Rights Agreement, each of the Holders and Parent desire to enter into this Agreement providing for, among other things, certain registration rights applicable to the Holders in connection with the Merger. In consideration of the agreement to terminate the Company Registration Rights Agreement, and the representations, warranties, covenants and conditions herein and in the Merger Agreement, the parties hereto hereby agree as follows: SECTION 1 REGISTRATION RIGHTS 1.1 Certain Definitions. As used in this Agreement: (a) The term "beneficially owned" refers to the meaning of such term as provided in Rule 13d-3 promulgated under the Exchange Act. (b) The term "Exchange Act" means the Securities Exchange Act of 1934, as amended, or any similar federal statute and the rules and regulations of the SEC thereunder, all as the same shall be in effect from time to time. (c) The term "person" means any person, individual, corporation, partnership, limited liability company, trust or other non-governmental entity or any governmental agency, court, authority or other body (whether foreign, federal, state, local or otherwise). (d) The term "Holder" means each stockholder of the Company set forth on the signature pages hereto (and any permitted assignee of such stockholder pursuant to Section 5.3), provided, however, that any such person shall cease to be a Holder at such time as the registration rights to which such person is entitled hereunder terminate pursuant to Section 1.9. (e) The terms "register," "registered" and "registration" refer to a registration effected by preparing and filing a registration statement in compliance with the Securities Act, and the declaration or ordering by the SEC of the effectiveness of such registration statement. (f) The term "Registrable Securities" means (i) Parent Common Stock to be issued to the Holders pursuant to the Merger, (ii) any Parent Common Stock issued to the Holders by Parent upon any stock split, stock dividend, recapitalization, or similar event, and (iii) any securities of any person issued or issuable in respect of such Parent Common Stock as a result of a merger, consolidation, sale of assets, sale or exchange of capital stock or similar transaction. (g) The term "Securities Act" means the Securities Act of 1933, as amended, or any similar federal statute and the rules and regulations of the SEC thereunder, all as the same shall be in effect at the time. (h) The term "SEC" means the Securities and Exchange Commission or any other federal agency at the time administering the Securities Act. (i) The term "Transfer" means offer, sell, contract to sell or otherwise dispose of. (j) All other capitalized terms used but not defined herein have the meanings set forth in the Merger Agreement. 1.2 Shelf Registration. Parent shall use its reasonable efforts to file promptly (and in any event within 30 days) after filing of the Registration Statement on Form S-4 to be filed in connection with the Merger, a registration statement on Form S-3 or other appropriate form pursuant to Rule 415 under the Securities Act (the "Registration Statement"), and shall use its reasonable efforts to file such other documents as may be necessary to cause the Registration Statement to be declared effective by the SEC at the Effective Time or as soon as practicable thereafter (including, without limitation, the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable "blue sky" or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) as would permit or facilitate the sale and distribution by the Holders of all of the Registrable Securities then outstanding (other than any Registrable Securities which any Holder may direct Parent to exclude from such registration); -2- provided, however, that Parent shall not be obligated to take any action to effect any such registration, qualification or compliance pursuant to this Article 1 in any particular jurisdiction in which Parent would be required to execute a general consent to service of process in effecting such registration, qualification or compliance (unless Parent is already subject to service in such jurisdiction and except as may be required by the Securities Act) or to qualify as a foreign corporation in any jurisdiction where Parent is not so qualified. 1.3 Offerings off the Shelf Registration Statement. (a) Each Holder may from time to time specify by notice to Parent the specific manner of Transferring of all or any portion of its Registrable Securities (each, an "Offering"); provided, that such notice must be given prior to the earlier of (i) the first anniversary of the Effective Time, or (ii) the Transfer of all such Holder's Registrable Securities, and Parent shall take such action as may be required of it pursuant to Section 1.4 to effect such Offering in accordance with such notice. Notwithstanding the foregoing, WELLC may not request that an Offering pursuant to this Agreement be underwritten, and Medicor and EQT may only specify on one occasion pursuant to this Agreement that an Offering is to be underwritten. (b) If Medicor or EQT (the "Requesting Holder") intends that an Offering is to be underwritten, the Requesting Holder shall so specify to the other Holders whose Registrable Securities have previously not been sold in an underwritten Offering pursuant to this Agreement (the "Other Holders") by written notice, in addition to providing notice to Parent pursuant to subsection (a) above (indicating the number of Registrable Securities to be offered, the method of distribution and the name(s) of the managing underwriter(s), which shall be reasonably acceptable to Parent). Upon receipt of such notice, the Other Holders shall have the right to participate in such underwritten Offering by giving written notice to the Requesting Holder and to Parent as promptly as practicable but no later than 15 days thereafter, indicating the number of Registrable Securities to be included in the underwritten Offering; provided, however, that the Other Holders shall not have the right to participate in such underwritten Offering if (in the written opinion of the managing underwriter(s)) such underwritten Offering is of a type that the Other Holders are not reasonably capable of participating in; and provided, further, that such participation shall be limited to an amount of Registrable Securities of such Other Holders that, when combined with the Registrable Securities of the Requesting Holder, does not (in the written opinion of the managing underwriter(s)) exceed the maximum amount of Registrable Securities which can be marketed (i) at a price reasonably related to the then current market value of such securities, or (ii) without otherwise materially and adversely affecting the entire Offering. By electing to participate in a Requesting Holder's underwritten Offering, the Other Holders will waive their right under this Section 1.3 to request an underwritten Offering; provided, that if, after the Other Holders have elected to participate in the Requesting Holder's underwritten Offering, the managing underwriter(s) reduce the number of Other Holder's Registrable Securities to be included in the underwritten Offering, the Other Holders may withdraw from the Offering and their right under this Section 1.3 to request an underwritten Offering shall not be waived. If requested in writing by the managing underwriters with respect to any Offering that is to be underwritten (and in which the Other Holders are reasonably capable of participating), each Holder agrees not to effect any public sale or distribution of Registrable Securities, or any securities convertible into or exchangeable or exercisable for Registrable Securities, pursuant to the Registration Statement (other than pursuant to such underwritten -3- Offering), during the period reasonably requested by the managing underwriters not to exceed seven days prior to and 30 days following the pricing of such underwritten Offering. 1.4 Obligations of Parent. In connection with any registration of Registrable Securities pursuant to this Article 1, Parent shall: (a) Use its reasonable efforts to cause the Registration Statement to be declared effective by the SEC at the Effective Time or as soon as practicable thereafter and to remain effective until the earlier to occur of (x) the first anniversary of the effectiveness of the Registration Statement (subject to extension to reflect any Suspension Period) and (y) such period as will terminate when all of the securities covered by the Registration Statement have been disposed of in accordance with the intended methods of disposition thereof by the Holders; provided that, notwithstanding the foregoing clause (x), with respect to an Offering for which Parent has received notice in accordance with Section 1.3 and which is intended to occur within a reasonable period of time (but no later than 90 days) following such notice, Parent will use its reasonable efforts to cause the Registration Statement to remain effective for such longer period (not to exceed five years after the Registration Statement is first declared effective) as in the opinion of counsel for any underwriters a prospectus is required by law to be delivered in connection with any such Offering by an underwriter or dealer with respect to those Registrable Securities subject to such Offering. (b) Use its reasonable efforts to cause the Registration Statement and the related prospectus and any amendment or supplement thereto, as of the effective date thereof (i) to comply in all material respects with the applicable requirements of the Securities Act and the rules and regulations of the SEC promulgated thereunder and (ii) not to contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (as applicable, in light of the circumstances under which they were made) not misleading. (c) Prepare and file with the SEC such amendments and supplements to the Registration Statement and the prospectus (the "Prospectus") used in connection therewith as may be necessary to make and to keep the Registration Statement effective and to comply with the provisions of the Securities Act with respect to the sale or other disposition of all securities proposed to be registered in such Registration Statement in accordance with the terms of any Offering. A reasonable time prior to the filing of the Registration Statement or any prospectus or any amendment or supplement thereto, Parent will provide copies of such documents to the Holders participating in such Offering and provide such Holders and their counsel with an adequate opportunity to review and comment thereon. (d) Furnish to the participating Holders such number of copies of any Prospectus (including any preliminary Prospectus and any amended or supplemented Prospectus), in conformity with the requirements of the Securities Act, as the Holders may reasonably request in order to effect the offering and sale of the shares of Registrable Securities to be offered and sold, but only while Parent shall be required under the provisions hereof to cause the Registration Statement to remain effective. -4- (e) Subject to the proviso to Section 1.2, use its reasonable efforts to register or qualify the shares of Registrable Securities covered by the Registration Statement under the securities or "blue sky" laws of such states as the participating Holders shall reasonably request and maintain any such registration or qualification current until the earlier to occur of the time periods set forth in Section 1.4(a). (f) Promptly notify each Holder at any time when a prospectus relating thereto is required to be delivered under the Securities Act within the appropriate period referred to in Section 1.4(a), of Parent's becoming aware that the prospectus included in the Registration Statement, or as such prospectus may be amended or supplemented, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading in light of the circumstances then existing, and at the request of any such Holder to promptly prepare and furnish to such Holder a number of copies of an amendment or supplemental prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading in the light of the circumstances then existing. In the event Parent shall give any such notice, each Holder shall immediately suspend use of the prospectus. (g) Cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by Parent are then listed and, if not so listed, to be listed on the Nasdaq National Market or the New York Stock Exchange. (h) Provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of the Registration Statement. (i) In connection with any Offering that is to be underwritten, enter into such customary agreements (including underwriting agreements in customary form for similar offerings) and take all such other actions as a Holder or the underwriters reasonably request in order to expedite or facilitate the disposition of such Registrable Securities in accordance with terms of any Offering. (j) Make reasonably available for inspection by any Holder of Registrable Securities, any underwriter participating in any Offering, and any attorney, accountant or other agent retained by any such Holder or underwriter, all financial and other records, pertinent corporate documents and properties of Parent, and use its reasonable efforts to cause Parent's officers, directors, employees and independent accountants to supply all information reasonably requested by any such Holder, underwriter, attorney, accountant or agent in connection with such Offering (including, with respect to any Offering that is to be underwritten, using its reasonable efforts to furnish to the underwriters for such Offering a cold comfort letter from Parent's accountant in customary form covering such matters as are customarily covered by such letters). (k) In connection with any Offering that is to be underwritten, use its reasonable efforts to provide to the underwriters for such Offering a legal opinion of Parent's outside counsel with respect to the registration statement, each amendment and supplement -5- thereto, the prospectus included therein (including the preliminary prospectus) and such other documents relating thereto in customary form and covering such matters of the type customarily covered by legal opinions of such nature. (l) In connection with any Offering that is to be underwritten, make reasonably available its employees and personnel and otherwise provide reasonable and customary assistance to any underwriters in the marketing of Registrable Securities pursuant to such underwritten Offering. (m) If requested in writing by the managing underwriters, with respect to any Offering that is to be underwritten, Parent agrees not to effect any public sale or distribution of its equity securities, or any securities convertible into or exchangeable or exercisable for such securities, in each case for its own account, during the time period reasonably requested by the managing underwriters, not to exceed seven days prior to and 60days following the pricing of any underwritten Offering (except as part of such underwritten registration or pursuant to registrations on Form S-4 or Form S-8 or any successor forms). (n) Reasonably cooperate with the Holders of Registrable Securities to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be Transferred and not bearing any restrictive legends and enable such Registrable Securities to be in such denominations and registered in such names as the Holders may reasonably request at least one business day prior to the closing of any sale of Registrable Securities. 1.5 Suspension of Use. In the event that, in the reasonable judgment of Parent (after consultation with outside counsel), it is advisable to suspend use by the Holders of the Registration Statement because Parent is conducting negotiations for a material business combination or due to pending material developments or events that have not yet been publicly disclosed and as to which Parent believes public disclosure will be prejudicial to Parent, Parent shall deliver to the Holders notice in writing to the effect of the foregoing, and Parent may suspend the effectiveness of the Registration Statement for up to 30 consecutive days (a "Suspension Period") in any 90-day period. Notwithstanding the foregoing, the aggregate duration of any Suspension Period shall not exceed 90 days in any 365-day period. Upon receipt of such notification, the Holders will immediately suspend all offers and Transfers of any Registrable Securities pursuant to the Registration Statement until the earlier of (i) the expiration of such Suspension Period or (ii) such time as Parent notifies the Holders in writing that such Suspension Period is ended. Parent will use its reasonable efforts to ensure that the Registration Statement may be used as promptly as practicable after the expiration of the Suspension Period. 1.6 Expenses. (a) Except as otherwise provided in this Agreement, all expenses incurred by Parent in connection with any registration pursuant to Section 1 of this Agreement shall be borne by Parent. The costs and expenses of any such registration shall include, without limitation, the fees and expenses of Parent's counsel and its accountants and all other costs and expenses of Parent incident to the preparation, printing and filing under the Securities Act of the Registration Statement and all amendments and supplements thereto and the cost of furnishing copies of each preliminary prospectus, each final prospectus and each amendment or supplement -6- thereto to dealers and other purchasers of the securities so registered, the costs and expenses incurred in connection with the qualification of such securities so registered under the "blue sky" laws of various jurisdictions, the fees and expenses of Parent's transfer agent and all other costs and expenses incurred by Parent of complying with the provisions of this Section 1 with respect to such registration (collectively, "Registration Expenses"). (b) Excluding the Registration Expenses, the participating Holders shall pay all other expenses incurred on their behalf with respect to any registration pursuant to this Section 1, including, without limitation, any counsel for the Holders and any underwriting fees or discounts. 1.7 Indemnification. (a) In connection with the registration hereunder, Parent agrees to indemnify and hold harmless, to the extent permitted by law, each Holder, its officers and directors and each person who controls such Holder (within the meaning of the Securities Act) against any losses, claims, damages, liabilities, joint or several (or actions or proceedings, whether commenced or threatened, in respect thereof), to which such Holder or any such director or officer or controlling person may become subject under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions or proceedings in respect thereof) arise out of or are based upon (i) any untrue or alleged untrue statement of a material fact contained (A) in any registration statement, prospectus or preliminary prospectus or any amendment thereof or supplement thereto or (B) in any application or other document or communication (in this Section 1.7 collectively called an "application") executed by or on behalf of Parent or based upon written information furnished by or on behalf of Parent filed in any jurisdiction in order to qualify any securities covered by such registration statement under the "blue sky" or securities laws thereof, or (ii) any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, and Parent will reimburse such Holder and each such director, officer and controlling person for any legal or any other expenses incurred by them in connection with investigating or defending any such loss, claim, liability, action or proceeding; provided that Parent shall not be liable in any such case to the extent that any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense arises out of or is based upon an untrue statement or alleged untrue statement, or omission or alleged omission, made in such registration statement, any such prospectus or preliminary prospectus or any amendment or supplement thereto, or in any application, in reliance upon and in conformity with written information prepared and furnished to Parent by such Holder expressly for use therein or by such Holder's failure to deliver a copy of any registration statement or prospectus or any amendments or supplements thereto after Parent has furnished such Holder with a sufficient number of copies of the same. (b) In connection with the registration hereunder, each such Holder will furnish to Parent in writing such information and documents as Parent reasonably requests for use in connection with any registration statement or prospectus and any amendment or supplement thereto and as shall be required in connection with any registration, qualification or compliance referred to in this Section 1 (including, without limitation, a "plan of distribution" section, reasonably acceptable to Parent) and, to the extent permitted by law, will indemnify and hold harmless Parent, its directors and officers and each other person who controls Parent (within -7- the meaning of the Securities Act) against any losses, claims, damages, liabilities, joint or several, to which Parent or any such director or officer or controlling person may become subject under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions or proceedings, whether commenced or threatened, in respect thereof) arise out of or are based upon (i) any untrue or alleged untrue statement of a material fact contained in the registration statement, prospectus or preliminary prospectus or any amendment thereof or supplement thereto or in any application or (ii) any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, but only to the extent that such untrue statement or omission is made in such registration statement, any such prospectus or preliminary prospectus or any amendment or supplement thereto, or in any application, in reliance upon and in conformity with written information prepared and furnished to Parent by such Holder expressly for use therein, and such Holder will reimburse Parent and each such director, officer and controlling person for any legal or any other expenses incurred by them in connection with investigating or defending any such loss, claim, liability, action or proceeding; provided that the obligation to indemnify will be individual to each Holder and will be limited to the net amount of proceeds received by such Holder from the sale of Registrable Securities pursuant to such registration statement. (c) Any person entitled to indemnification hereunder will (i) give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification and (ii) unless in such indemnified party's reasonable judgment a conflict of interest between such indemnified and indemnifying parties may exist with respect to such claim, permit such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party. If such defense is assumed, the indemnifying party will not be subject to any liability for any settlement made by the indemnified party without its consent (but such consent will not be unreasonably withheld). An indemnifying party who is not entitled to, or (within a reasonable time) elects not to, assume the defense of a claim will not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party a conflict of interest may exist between such indemnified party and any other of such indemnified parties with respect to such claim. (d) The indemnification provided for under this Agreement will remain in full force and effect regardless of any investigation made by or on behalf of the indemnified party or any officer, director or controlling person of such indemnified party and will survive the Transfer of Registrable Securities by any Holder thereof. Parent also agrees to make such provisions, to the full extent provided by law, for contribution to any indemnified party in the event Parent's indemnification pursuant to Section 1.7(a) is unavailable for any reason. -8- 1.8 Information by Holder. Each Holder covenants and agrees that any information provided to Parent pursuant to this Agreement shall not contain any untrue statement of a material fact relating to or provided by such Holder, or omit to state any material fact relating to or provided by such Holder required to be stated or necessary to make such statements, in the light of the circumstances under which they were made, not misleading. 1.9 Termination of Registration Rights. The registration rights granted pursuant to this Article 1 shall terminate as to any Holder upon the earlier to occur of the time periods set forth in Section 1.4(a); provided, however, that the provisions of Section 1.7 shall survive such termination with respect to claims and liabilities arising out of actions, statements, or omissions occurring prior to such termination. SECTION 2 CERTAIN REPRESENTATIONS AND WARRANTIES OF THE HOLDERS Each Holder, severally and not jointly, represents and warrants to Parent as follows: 2.1 Binding Agreement. Each Holder has the capacity to execute and deliver this Agreement and to consummate the transactions contemplated hereby. Each Holder has duly and validly executed and delivered this Agreement and this Agreement constitutes a legal, valid and binding obligation of each Holder, enforceable against each Holder in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization or other similar laws affecting creditors' rights generally and by general equitable principles (regardless of whether enforceability is considered in a proceeding in equity or at law). 2.2 No Conflict. Neither the execution and delivery of this Agreement by each Holder, nor the performance by each Holder of its obligations hereunder will, (i) require any consent, approval, authorization or permit of, registration, declaration or filing (except for such filings as may be required under the federal securities laws and the rules and regulations thereunder, any "blue sky" or other state securities laws or as would not reasonably be expected to prevent or materially delay or otherwise impair each Holder's ability to perform its obligations hereunder) with, or notification to, any governmental entity, (ii) if each Holder is an entity, result in a violation of, or default under, or conflict with any provision of its certificate of incorporation, bylaws, partnership agreement, limited liability company agreement or similar organizational documents, (iii) result in a violation or breach of, or constitute (with or without due notice or lapse of time or both) a default (or give rise to any right of termination, cancellation, or acceleration) under any contract, trust, agreement, instrument, commitment, arrangement or understanding applicable to each Holder or each Holder's Registrable Securities, or result in the creation of a security interest, lien, charge, encumbrance, equity or claim with respect to any of each Holder's Registrable Securities, except, in the case of clause (iii), as would not prevent or materially delay or otherwise materially impair each Holder's ability to perform its obligations hereunder, (iv) require any consent, authorization or approval of any person other than a governmental entity, except, in the case of clause (iv), as would not reasonably be expected to prevent, materially delay or otherwise materially impair each Holder's ability to perform its obligations hereunder or (v) violate or conflict with any order, writ, injunction, decree, rule, regulation or law applicable to each Holder or each Holder's Registrable Securities. -9- SECTION 3 CERTAIN REPRESENTATIONS AND WARRANTIES OF PARENT Parent represents and warrants to the Holders as follows: 3.1 Binding Agreement. Parent is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware and has full corporate power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby. The execution and delivery of this Agreement by Parent and the consummation of the transactions contemplated hereby have been duly and validly authorized by the Board of Directors of Parent, and no other corporate proceedings on the part of Parent are necessary to authorize the execution, delivery and performance of this Agreement by Parent and the consummation of the transactions contemplated hereby (except as described in Section 4.2 of the Merger Agreement). Parent has duly and validly executed this Agreement and this Agreement constitutes a legal, valid and binding obligation of Parent, enforceable against Parent in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization or other similar laws affecting creditors' rights generally and by general equitable principles (regardless of whether enforceability is considered in a proceeding in equity or at law). 3.2 No Conflict. Neither the execution and delivery by Parent of this Agreement, nor the performance by Parent of its obligations hereunder will, (i) require any consent, approval, authorization or permit of, registration, declaration or filing (except for such filings as may be required under the federal securities laws and the rules and regulations thereunder, any "blue sky" or other state securities laws or as would not reasonably be expected to prevent or materially delay or otherwise impair Parent's ability to perform its obligations hereunder) with, or notification to, any governmental entity, (ii) result in a violation of, or default under, or conflict with any provision of its Certificate of Incorporation or Bylaws, (iii) result in a violation or breach of, or constitute (with or without due notice or lapse of time or both) a default (or give rise to any right of termination, cancellation, or acceleration) under any contract, trust, agreement, instrument, commitment, arrangement or understanding applicable to Parent, except, in the case of clause (iii), as would not prevent or materially delay or otherwise materially impair Parent's ability to perform its obligations hereunder, (iv) require any consent, authorization or approval of any person other than a governmental entity, except, in the case of clause (iv), as would not reasonably be expected to prevent, materially delay or otherwise materially impair Parent's ability to perform its obligations hereunder or (v) violate or conflict with any order, writ, injunction, decree, rule, regulation or law applicable to Parent. SECTION 4 CERTAIN COVENANTS 4.1 Reporting Requirements. Parent shall use its reasonable efforts to file the reports required to be filed by it under the Securities Act and the Exchange Act in a timely manner in accordance with the requirements of the Securities Act and the Exchange Act and, for so long as any Registrable Securities remain outstanding, if at any time Parent is not required to file such reports, it will, upon the reasonable request of any Holder, make available such information necessary to permit sales pursuant to Rule 144 under the Securities Act. Upon the -10- request of a Holder, Parent shall promptly deliver to such Holder a written statement as to whether it has complied with such requirements. SECTION 5 MISCELLANEOUS 5.1 Governing Law. THIS AGREEMENT SHALL BE GOVERNED IN ALL RESPECTS, INCLUDING VALIDITY, INTERPRETATION AND EFFECT, BY THE LAWS OF THE STATE OF NEW YORK (WITHOUT GIVING EFFECT TO THE PROVISIONS THEREOF RELATING TO CONFLICTS OF LAW). 5.2 Jurisdiction. Each of the parties hereto (i) consents to submit itself to the personal jurisdiction of any state or federal court located in New York, New York, Borough of Manhattan in the event any dispute arises out of this Agreement or any of the transactions contemplated by this Agreement, (ii) agrees that it will not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from any such court, and (iii) agrees that it will not bring any action relating to this Agreement or any of the transactions contemplated by this Agreement in any court other than a state or federal court located in New York, New York, Borough of Manhattan. 5.3 Successors and Assigns. This Agreement (and the rights and obligations hereunder) shall not be assigned (i) by Parent without the prior written consent of the other parties hereto, and (ii) by a Holder without the prior written consent of Parent; provided, that any Holder may, by giving notice to Parent, assign its rights and obligations hereunder in connection with the Transfer of all but not less than all of the such Holder's Registrable Securities to a person which controls, is controlled by or is under common control with such Holder. This Agreement will be binding upon, inure to the benefit of and be enforceable by each party and such party's heirs, beneficiaries, executors, successors, representatives and permitted assigns. 5.4 Third Party Beneficiaries. This Agreement is not intended and shall not be construed to create any rights or remedies in any parties other than the Holders and Parent and no other person shall assert any rights as third party beneficiary hereunder. 5.5 Entire Agreement. This Agreement (including the documents and instruments referred to herein) constitutes the entire agreement and supersedes all other prior agreements and understandings, both written and oral, among the parties, or any of them, with respect to the subject matter hereof. 5.6 Amendment. This Agreement may not be modified, amended, altered or supplemented except upon the execution and delivery of a written agreement executed by the parties hereto; provided, that with respect to the obligations of any individual Holder under this Agreement, this Agreement may be amended with the approval of such Holder and Parent notwithstanding the failure to obtain the approval of other Holders. 5.7 Notices; Dates. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given if delivered personally, mailed by certified mail (return receipt requested) or sent by overnight carrier or by telecopier (upon confirmation of receipt) to the parties at the following addresses or at such other address as shall -11- be specified by the parties by like notice: (i) if to Parent, to the appropriate address set forth in Section 9 of the Merger Agreement; and (ii) if to a Holder, to the appropriate address set forth on Schedule I hereto. In the event that any date provided for in this Agreement falls on a Saturday, Sunday or legal holiday, such date shall be deemed extended to the next business day. 5.8 Counterparts. This Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, and delivered by means of facsimile transmission or otherwise, each of which when so executed and delivered shall be deemed to be an original and all of which when taken together shall constitute one and the same agreement. 5.9 Severability. If any provision of this Agreement shall be held to be illegal, invalid or unenforceable under any applicable law, then such contravention or invalidity shall not invalidate the entire Agreement. Such provision shall be deemed to be modified to the extent necessary to render it legal, valid and enforceable, and if no such modification shall render it legal, valid and enforceable, then this Agreement shall be construed as if not containing the provision held to be invalid, and the rights and obligations of the parties shall be construed and enforced accordingly. 5.10 Remedies. Without limiting the remedies available to the Holders, Parent acknowledges that any failure by Parent to comply with its obligations under this Agreement may result in material irreparable injury to the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, any Holder shall be entitled to injunctive relief or the enforcement of other equitable remedies, without bond or other security, to compel performance and to prevent breaches of this Agreement by Parent and specifically to enforce the terms and provisions hereof, in addition to any other remedy to which they may be entitled, at law or in equity. 5.11 Termination. This Agreement shall terminate and be of no further force and effect if the Merger Agreement is terminated in accordance with its terms. 5.12 Headings. The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. [The remainder of this page is intentionally left blank.] -12- IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be signed, individually or by its respective officer thereunto duly authorized, as of the date first written above. KERR-MCGEE CORPORATION By:___________________________________ Name: Gregory F. Pilcher Title: Senior VP, General Counsel and Corporate Secretary STOCKHOLDERS: EQT INVESTMENTS, LLC By:___________________________________ Name: Kenneth Kubacki Title: Vice President MEDICOR FOUNDATION By:___________________________________ Name: Anton M. Lotzer Title: CEO By:___________________________________ Name: Albin A. Johann Title: Secretary WESTPORT ENERGY LLC By: WESTPORT INVESTMENTS LIMITED, its Managing Member By:___________________________________ Name: Robert A. Haas Title: Director -13- SCHEDULE I Addresses for Notices: If to Parent: Kerr-McGee Corporation Kerr-McGee Center 123 Robert S. Kerr Avenue Oklahoma City, Oklahoma 73102 Attention: General Counsel Fax: (405) 270-3649 with a copy to: Covington & Burling 1330 Avenue of the Americas New York, New York 10019 Attention: Scott F. Smith Fax: (212) 841-1010 With a copy to: Akin Gump Strauss Hauer & Feld LLP 1700 Pacific Avenue, Suite 4100 Dallas, Texas 75201-4675 Attention: Michael E. Dillard, P.C. Fax Number: (214) 969-4343 Phone Number: (214) 969-2800 If to Medicor: Medicor Foundation Landstrasse 11 Postfach 130 9495 Triesen Liechtenstein Attention: Anton M. Lotzer Fax Number: (423) 233-3934 Phone Number: (423) 239-6050 With a copy to: Richard M. Petkun Greenberg Traurig, LLP 1200 17th Street, Suite 2400 Denver, CO 80202 Telephone: (303) 572-6500 Telecopy: (303) 572-6540 And to: Michael Russell Dr. Richard J. Haas Partners Dukes Court 32 Duke Street, St. James's London, SW1Y 6DF Fax Number: 020.7.321.5242 Phone Number: 020.7.321.5200 If to WELLC: Westport Energy LLC c/o Westport Investments Limited Lyford Manor Lyford Cay P.O. Box N-7776 Nassau, Bahamas Fax Number: (242) 362-5788 With a copy to: Richard M. Petkun Greenberg Traurig, LLP 1200 17th Street, Suite 2400 Denver, CO 80202 Telephone: (303) 572-6500 Telecopy: (303) 572-6540 And to: Michael Russell Dr. Richard J. Haas Partners Dukes Court 32 Duke Street, St. James's London, SW1Y 6DF Fax Number: 020.7.321.5242 Phone Number: 020.7.321.5200 If to EQT Investments, LLC: EQT Investments, LLC 801 West Street, 2nd Floor Wilmington, DE 19801-1545 Attention: Treasurer Telephone: (302) 656-5590 Telecopy: (302) 428-1410 With a copy to: Johanna G. O'Loughlin Vice President, General Counsel and Secretary Equitable Resources, Inc. One Oxford Centre, Suite 3300 Pittsburgh, PA 15219 Telephone: (412) 553-7760 Telecopy: (412) 553-5970 And to: Stephen W. Johnson, Esquire Reed Smith LLP 435 Sixth Avenue Pittsburgh, PA 15219-1886 Telephone: (412) 288-3131 Telecopy: (412) 288-3063 -----END PRIVACY-ENHANCED MESSAGE-----