EXHIBIT 10.11
REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated as of
April 6, 2004, by and among XXXX-XXXXX 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").
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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);
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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
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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.
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(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
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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
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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
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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.
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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.
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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
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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
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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.]
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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.
XXXX-XXXXX CORPORATION
By:___________________________________
Name: Xxxxxxx X. Xxxxxxx
Title: Senior VP, General Counsel and
Corporate Secretary
STOCKHOLDERS:
EQT INVESTMENTS, LLC
By:___________________________________
Name: Xxxxxxx Xxxxxxx
Title: Vice President
MEDICOR FOUNDATION
By:___________________________________
Name: Xxxxx X. Xxxxxx
Title: CEO
By:___________________________________
Name: Xxxxx X. Xxxxxx
Title: Secretary
WESTPORT ENERGY LLC
By: WESTPORT INVESTMENTS LIMITED,
its Managing Member
By:___________________________________
Name: Xxxxxx X. Xxxx
Title: Director
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SCHEDULE I
Addresses for Notices:
If to Parent:
Xxxx-XxXxx Corporation
Xxxx-XxXxx Center
000 Xxxxxx X. Xxxx Xxxxxx
Xxxxxxxx Xxxx, Xxxxxxxx 00000
Attention: General Counsel
Fax: (000) 000-0000
with a copy to:
Xxxxxxxxx & Xxxxxxx
1330 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxx
Fax: (000) 000-0000
With a copy to:
Akin Gump Xxxxxxx Xxxxx & Xxxx LLP
0000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxxx, P.C.
Fax Number: (000) 000-0000
Phone Number: (000) 000-0000
If to Medicor:
Medicor Foundation
Xxxxxxxxxxx 00
Postfach 130
9495 Triesen
Liechtenstein
Attention: Xxxxx X. Xxxxxx
Fax Number: (000) 000-0000
Phone Number: (000) 000-0000
With a copy to:
Xxxxxxx X. Xxxxxx
Xxxxxxxxx Xxxxxxx, LLP
0000 00xx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
And to:
Xxxxxxx Xxxxxxx
Xx. Xxxxxxx X. Xxxx Partners
Xxxxx Court
00 Xxxx Xxxxxx, Xx. Xxxxx'x
Xxxxxx, XX0X 0XX
Fax Number: 000.0.000.0000
Phone Number: 000.0.000.0000
If to WELLC:
Westport Energy LLC
c/o Westport Investments Limited
Xxxxxx Manor
Xxxxxx Xxx
P.O. Box N-7776
Nassau, Bahamas
Fax Number: (000) 000-0000
With a copy to:
Xxxxxxx X. Xxxxxx
Xxxxxxxxx Traurig, LLP
0000 00xx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
And to:
Xxxxxxx Xxxxxxx
Xx. Xxxxxxx X. Xxxx Partners
Xxxxx Court
00 Xxxx Xxxxxx, Xx. Xxxxx'x
Xxxxxx, XX0X 0XX
Fax Number: 000.0.000.0000
Phone Number: 000.0.000.0000
If to EQT Investments, LLC:
EQT Investments, LLC
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxxx, XX 00000-0000
Attention: Treasurer
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
With a copy to:
Xxxxxxx X. X'Xxxxxxxx
Vice President, General Counsel and Secretary
Equitable Resources, Inc.
Xxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
And to:
Xxxxxxx X. Xxxxxxx, Esquire
Xxxx Xxxxx LLP
000 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
