1
EXHIBIT 10.3
================================================================================
SHAREHOLDERS AGREEMENT
by and among
WESTPORT ENERGY CORPORATION
and
THE SHAREHOLDERS OF EQUITABLE PRODUCTION (GULF) COMPANY
SET FORTH ON THE SIGNATURE PAGES HEREOF
Dated as of March 9, 2000
================================================================================
2
SHAREHOLDERS AGREEMENT
THIS SHAREHOLDERS AGREEMENT is dated as of March __, 2000
(this "Agreement") by and among Westport Energy Corporation ("WEC"), a Delaware
corporation, and each of the persons set forth on the signature pages hereof
(the "Covered Shareholders").
A. Each of the Covered Shareholders owns shares of common stock of WEC.
B. WEC, Westport Oil And Gas Company, Inc. ("WOGCI"), a Delaware
corporation and a subsidiary of WEC, Equitable Production Company ("EPC"), a
Delaware corporation, Equitable Production (Gulf) Company (the "Company"), a
Delaware corporation and a wholly-owned subsidiary of EPC, and EPGC Merger Sub
Corporation, a Delaware corporation and wholly-owned subsidiary of the Company
("EPGC Sub") have entered into an Agreement and Plan of Merger (the "Merger
Agreement") dated March ___, 2000 pursuant to which EPGC Sub will merge with and
into WOGCI, and as part of the merger, the common stock of WOGCI, substantially
all of which is owned by WEC, will be converted into shares of Common Stock of
the Company, representing an estimated 51% of the Company's Common Stock
outstanding. EPC will retain shares of Common Stock of the Company, representing
an estimated 49% of the Common Stock of the Company outstanding.
C. Pursuant to the Merger Agreement, the Company, WEC and EPC will
enter into a Shareholders Agreement (the "Primary Shareholders Agreement") with
respect to certain matters relating to the ownership of Common Stock of the
Company by the parties thereto.
D. The consummation of the transactions contemplated by the Merger
Agreement and the Primary Shareholders Agreement require that WEC and the
Covered Shareholders enter into this Agreement.
E. Pursuant to this Agreement, WEC shall act on behalf of the Covered
Shareholders with respect to the benefits to and obligations of WEC and the
Covered Shareholders under the Primary Shareholders Agreement.
Accordingly, in consideration of the foregoing, and of the
representations, warranties, covenants and agreements contained herein and for
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto, intending to be legally bound, hereby
agree as follows:
ARTICLE I
PROXY
Section 1.1 Irrevocable Proxy. (a) Each Covered Shareholder hereby
irrevocably appoints WEC as his or its attorney, agent and proxy, with full
power of substitution for each such Covered Shareholder and in the name, place
and stead of each such Covered Shareholder to vote or, if applicable, to give
written consent, in such manner as such attorney, agent and proxy
3
or its substitutes shall in its sole discretion deem proper to so vote (or
consent) with respect to all shares of Common Stock whether owned on the date
hereof or acquired hereafter (whether by purchase or exchange) which each such
Covered Shareholder is or may be entitled to vote at any meeting of the Company
held after the date hereof, whether annual or special and whether or not an
adjourned meeting, or, if applicable, to give written consent with respect
thereto. This proxy is coupled with an interest and shall be irrevocable and
binding on any successor in interest of each such Covered Shareholder and shall
not be terminated by operation of law upon the occurrence of any event,
including, without limitation, the death or incapacity of each such Covered
Shareholder. This proxy shall be effective from the date of this Agreement until
terminated pursuant to Section 1.l(b) and shall operate to revoke any prior
proxy as to the shares of Common Stock of the Company.
(b) The proxy granted pursuant to Section 1.1(a) above shall terminate
(i) with respect to any shares of Common Stock Transferred (as defined below) in
accordance with this Agreement to any person or (ii) upon the termination of
this Agreement, whichever is the first to occur.
ARTICLE II
TRANSFER
Section 2.1 Transfer Restrictions. (a) Until the first anniversary of
the consummation of a Qualified Public Offering of Common Stock, no Covered
Shareholder shall, directly or indirectly, sell, transfer, assign, pledge or
otherwise dispose of (a "Transfer") all or part of the Shares beneficially owned
by such Covered Shareholder to any person (other than a Permitted Transferee)
without the prior written consent of WEC. Any Transfer of the Shares in
violation of this Agreement shall have no effect and be null and void.
(b) Each Covered Shareholder hereby further agrees that, with respect
to any Registration Statement that the Company may file (other than a
Registration Statement on Form S-8), it will not sell any securities of the
Company other than securities, if any, of such Covered Shareholder included in
such Registration Statement, during the time period reasonably requested by the
managing underwriters, not to exceed seven days prior to and the 180-day period
beginning on the date such Registration Statement is declared effective.
Section 2.2 Tag Along Rights. WEC hereby agrees that if it is offered
the right to participate in a sale of any Shares by EPC or its Subsidiaries
pursuant to the provisions of the Primary Shareholders Agreement, it shall make
such rights available to the Covered Shareholders on a pro rata basis (taking
into account the appropriate voting and economic interests) on the same terms
and conditions as offered to WEC.
Section 2.3 Sale of the Company. If WEC is required to sell pursuant to
the terms of the Primary Shareholders Agreement or sells, directly or indirectly
(by merger or otherwise) all of the Shares owned by it, or otherwise causes the
sale of the Company, WEC shall require each of the Covered Shareholders to sell
and each Covered Shareholder agrees to
-2-
4
sell, to the prospective purchaser concurrently with and on the terms (including
price) and subject to the conditions of the sale of the Shares owned by WEC, all
of the Shares owned by such Covered Shareholders. Each of the Covered
Shareholders agrees to take such actions as are necessary to consummate the
transactions contemplated by this Section 2.3.
ARTICLE III
TERMINATION
Section 3.1 Termination. This Agreement shall be terminated and shall
cease to be binding on the parties hereto upon the earlier of (i) termination of
the Primary Shareholders Agreement, (ii) as to any restrictions binding on the
Covered Shareholders which WEC notifies the Covered Shareholders are to be
terminated or waived by WEC, and (iii) a Qualified Public Offering.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.1 Representations and Warranties of WEC. WEC hereby
represents and warrants to the Covered Shareholders as follows: WEC has all
requisite corporate power and authority to enter into this Agreement and to
consummate the transactions contemplated hereby. The execution and delivery by
WEC of this Agreement, and the consummation by WEC of the transactions
contemplated hereby have been duly authorized by all necessary corporate action
on the part of WEC and does not conflict with, or result in a breach of, any law
or regulation of any governmental authority applicable to WEC or any material
agreement to which WEC is a party. This Agreement has been duly executed and
delivered by WEC and constitutes a valid and binding obligation of WEC
enforceable against WEC in accordance with its terms.
Section 4.2 Representations and Warranties of the Covered Shareholders.
Each of the Covered Shareholders (as to itself only) hereby represents and
warrants to WEC as follows: Each Covered Shareholder has all requisite power and
authority to enter into this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery by each Covered Shareholder of
this Agreement, and the consummation of the transactions contemplated hereby,
have been duly authorized by all necessary action on the part of each Covered
Shareholder and does not conflict with, or result in a breach of, any law or
regulation of any governmental authority applicable to any such Covered
Shareholder or any material agreement to which such Covered Shareholder is a
party. This Agreement has been duly executed and delivered by each Covered
Shareholder and constitutes a valid and binding obligation, enforceable against
each Covered Shareholder in accordance with its terms.
-3-
5
ARTICLE V
GENERAL PROVISIONS
Section 5.1 Certain Definitions. The following capitalized terms used
in this Agreement shall bear the following meanings:
"Common Stock": the common stock of the Company now or hereafter
authorized to be issued.
"Permitted Transferees": the Covered Shareholders, any current or
future employee, shareholder, director or officer of WEC, or any spouse, issue,
parents or other relative of any of the foregoing or (i) trust for the benefit
of any of such persons, (ii) entities controlling or controlled by any of such
persons and (iii) in the event of the death of any such individual persons,
heirs or testamentary legatees of such persons, and in each case who has entered
into this Agreement.
"Person": any natural person, corporation, partnership, firm,
association, trust, government, governmental agency or other entity, whether
acting in an individual, fiduciary or other capacity.
"Shares": shares of Common Stock.
"Subsidiary": of any Person shall mean any corporation or other legal
entity of which such Person (either alone or through or together with any other
Subsidiary) owns, directly or indirectly, 50% or more of the stock or other
equity interests, the holders of which are generally entitled to vote for the
election of the board of directors or other governing body of such corporation
or other legal entity.
Capitalized terms used but not defined herein shall have the meanings ascribed
to them in the Primary Shareholders Agreement.
Section 5.2 Primary Shareholders Agreement. Each Covered Shareholder
acknowledges and agrees that WEC will act as its representative with respect to
matters arising under the Primary Shareholders Agreement.
Section 5.3 Notices. All notices hereunder shall be in writing and
shall be deemed to have been duly given if delivered in person or by registered
or certified mail, return receipt requested, with respect to WEC, at the
following addresses:
If to Westport: Westport Energy Corporation
00 Xxxx Xxxx Xxx.
Xxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxxxxx
Fax Number: (000) 000-0000
Phone Number: (000) 000-0000
-4-
6
With a copy to: Akin, Gump, Strauss, Xxxxx & Xxxx, L.L.P.
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
And to: Xxxxx, Xxxxxx & Xxxxxx, LLP
000 00xx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Fax Number: (000) 000-0000
Phone Number: (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
or with respect to the Covered Shareholders, at the addresses set forth opposite
their respective names below or such other address as any such Covered
Shareholders shall have given to WEC for such purpose.
Section 5.4 Assignment; Binding Effect; Third Party Beneficiary.
Neither this Agreement nor any of the rights, interests or obligations hereunder
shall be assigned by WEC, on the one hand, or any of the Covered Shareholders,
on the other hand, (whether by operation of law or otherwise) without the
consent of the other (except that WEC may so assign to an affiliate of WEC).
Subject to the preceding sentence, this Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective successors
and assigns. Notwithstanding anything contained in this Agreement to the
contrary, nothing in this Agreement, express or implied, is intended to confer
on any person other than the parties hereto or their respective heirs,
successors, executors, administrators and assigns any rights, remedies,
obligations or liabilities under or by reason of this Agreement, except that EPC
and its Subsidiaries are intended third party beneficiaries of this Agreement.
Section 5.5 Entire Agreement. This Agreement and the appendices hereto
and any certificate delivered by the parties in connection herewith constitute
the entire agreement among the parties with respect to the subject matter hereof
and supersede all prior agreements and understandings (oral and written) among
the parties with respect thereto.
Section 5.6 Amendment. This Agreement may be amended by the parties
hereto at any time by an instrument in writing signed by or on behalf of each of
the parties hereto (but no such amendment shall be binding on any non-signing
party).
-5-
7
Section 5.7 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware without regard to
its rules of conflict of laws.
Section 5.8 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be signed by WEC and one or more Covered
Shareholder and all of which shall be deemed to be one and the same agreement,
binding upon WEC and each of the Covered Shareholders.
Section 5.9 Severability. Any term or provision of this Agreement which
is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction,
be ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or otherwise affecting the validity or enforceability of any of the
terms or provisions of this Agreement in any other jurisdiction. If any
provision of this Agreement is so broad as to be unenforceable, the provision
shall be interpreted to be only so broad as is enforceable.
Section 5.10 Enforcement of Agreement. 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 its specific terms or was
otherwise breached. It is accordingly agreed that the parties shall be entitled
to an injunction or injunctions to prevent breaches of this Agreement and to
enforce specifically the terms and provisions hereof, this being in addition to
any other remedy to which they may be entitled at law or in equity.
Section 5.11 Effective Time. Notwithstanding anything herein to the
contrary, this Agreement shall become effective from and upon the Closing of the
transactions contemplated by the Merger Agreement, and the representations and
warranties contained herein shall be deemed made as of the date of Closing. If
the Merger Agreement is terminated for any reason, this Agreement shall also
terminate.
[SIGNATURE PAGES FOLLOWING]
-6-
8
[1 OF 2 SIGNATURE PAGES FOR COVERED SHAREHOLDERS AGREEMENT]
IN WITNESS WHEREOF, the parties have executed this Covered Shareholders
Agreement and caused the same to be duly delivered on their behalf as of the day
and year first written above.
COVERED SHAREHOLDER:
Name:
------------------------------- ------------------------------------
Address:
------------------------------- ------------------------------------
------------------------------------
------------------------------------
Number of Shares held
-----------------------
9
[2 OF 2 SIGNATURE PAGES FOR COVERED SHAREHOLDERS AGREEMENT]
WESTPORT ENERGY CORPORATION
By:
-------------------------------
Name:
Title:
