EXECUTION COPY
EXHIBIT 10.9
================================================================================
REGISTRATION RIGHTS AGREEMENT
by and among
WESTPORT RESOURCES CORPORATION
ERI INVESTMENTS, INC.
WESTPORT ENERGY LLC
MEDICOR FOUNDATION
AND
CERTAIN STOCKHOLDERS NAMED HEREIN
Dated as of October 1, 2003
================================================================================
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS..........................................................1
Section 1.1. Definitions.........................................1
ARTICLE II REPRESENTATIONS AND WARRANTIES......................................4
Section 2.1. Representations and Warranties of the Company.......4
Section 2.2. Representations and Warranties of Medicor...........4
Section 2.3. Representations and Warranties of ERI...............5
Section 2.4. Representations and Warranties of the Belfer Group..5
ARTICLE III REGISTRATION RIGHTS................................................6
Section 3.1. Demand Registrations................................6
Section 3.2. Piggyback Registrations.............................9
Section 3.3. Holdback Agreements................................10
Section 3.4. Registration Procedures............................11
Section 3.5. Registration Expenses..............................13
Section 3.6. Indemnification....................................14
Section 3.7. Participation in Underwritten Registrations........15
Section 3.8. Current Public Information.........................16
Section 3.9. Cooperation........................................16
ARTICLE IV GENERAL PROVISIONS.................................................16
Section 4.1. Notices............................................16
Section 4.2. Assignment; Binding Effect; Benefit................19
Section 4.3. Entire Agreement...................................19
Section 4.4. Amendment..........................................19
Section 4.5. Governing Law; Jurisdiction........................19
Section 4.6. Counterparts.......................................20
Section 4.7. Headings...........................................20
Section 4.8. Interpretation.....................................20
Section 4.9. Incorporation of Exhibits and Schedules............20
Section 4.10. Severability.......................................20
Section 4.11. Enforcement of Agreement...........................20
Section 4.12. Confidentiality....................................20
Section 4.13. Effectiveness; Termination.........................20
Section 4.14. Belfer Group Representative........................21
Section 4.15. Medicor Group Representative.......................21
-i-
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT, dated as of October 1, 2003 (this
"Agreement"), is entered into by and among Westport Resources Corporation, a
Nevada corporation ("Westport" or the "Company"), Westport Energy LLC, a
Delaware limited liability company ("WELLC"), ERI Investments, Inc., a Delaware
corporation ("ERI"), Medicor Foundation, a Liechtenstein foundation, formed
pursuant to the Liechtenstein Persons and Companies Act ("Medicor," and together
with WELLC, the "Medicor Group") and the persons and entities named on Exhibit A
(each such person or entity, a "Belfer Person," and collectively, the "Belfer
Group").
WHEREAS, the Company, ERI, WELLC, Medicor, the Belfer Group and certain
other stockholders are parties to that certain Third Amended and Restated
Shareholders Agreement, dated as of February 14, 2003 (the "Shareholders
Agreement"); and
WHEREAS, the parties to the Shareholders Agreement desire to terminate the
Shareholders Agreement in its entirety and, simultaneously with its termination,
the Company, ERI, WELLC, Medicor and the Belfer Group desire to enter into this
Agreement providing for, among other things, certain registration rights
applicable to the ERI Parties, the Medicor Parties and the Belfer Parties.
NOW, THEREFORE, 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 are
hereby acknowledged, the parties hereto, intending to be legally bound, hereby
agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1. Definitions.
"Affiliate" shall have the meaning set forth in Rule 12b-2 of the
regulations promulgated under the Exchange Act.
"Agreement" shall have the meaning set forth in the preamble to this
Agreement.
"Belfer Group" shall have the meaning set forth in the preamble to this
Agreement.
"Belfer Group Representative" shall have the meaning set forth in Section
4.14.
"Belfer Parties" shall mean the Belfer Group and their Permitted
Transferees.
"Belfer Person" shall mean any Person included in the Belfer Group.
"Board of Directors" shall mean the board of directors of the Company.
"Commission" shall mean the Securities and Exchange Commission or any other
Federal agency at the time administering the Securities Act.
1
"Common Stock" shall mean the common stock of the Company, par value $.01
per share, now or hereafter authorized to be issued.
"Company" shall have the meaning set forth in the preamble to this
Agreement.
"Demand Registrations" shall have the meaning set forth in Section 3.l(a).
"Director" shall mean a member of the Board of Directors.
"Effective Date" shall have the meaning set forth in Section 4.13 of this
Agreement.
"ERI" shall have the meaning set forth in the preamble to this Agreement.
"ERI Parties" shall mean ERI and its Permitted Transferees.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the Commission thereunder, all as the same
shall be in effect at the time.
"Medicor" shall have the meaning set forth in the preamble to this
Agreement.
"Medicor Group" shall have the meaning set forth in the preamble to this
Agreement.
"Medicor Group Representative" shall have the meaning set forth in Section
4.15.
"Medicor Parties" shall mean the Medicor Group and their Permitted
Transferees.
"Medicor Person" shall mean any Person included in the Medicor Group.
"Permitted Transferees" shall mean in the case of the Medicor Parties: (A)
a Medicor Person, any spouse, issue, parent or relatives of the Medicor Parties,
or (i) trusts 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 person, heirs or testamentary legatees of such person, in each
case to whom a Medicor Party has transferred its Shares and who has agreed in
writing to be bound by the terms of this Agreement, and (B) any Subsidiary or
Affiliate of the Medicor Group to which a Medicor Party has transferred its
Shares and which has agreed in writing to be bound by the terms of this
Agreement; in the case of the ERI Parties: (A) ERI, any spouse, issue, parent or
relatives of the ERI Parties, or (i) trusts 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 person, heirs or
testamentary legatees of such person, in each case to whom an ERI Party has
transferred its Shares and who has agreed in writing to be bound by the terms of
this Agreement, and (B) any Subsidiary or Affiliate of ERI to which an ERI Party
has transferred its Shares and which has agreed in writing to be bound by the
terms of this Agreement; and in the case of the Belfer Parties: a Belfer Person,
any spouse, issue, parent or relatives of the Belfer Parties, or (i) trusts 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
person, heirs or testamentary legatees of such person, in each case to whom a
Belfer Party has transferred its Shares and who has agreed in writing to be
bound by the terms of this Agreement;
2
"Person" shall mean any natural person, corporation, partnership, limited
liability company, firm, association, trust, government, governmental agency or
other entity, whether acting in an individual, fiduciary or other capacity.
"Piggyback Registration" shall have the meaning set forth in Section
3.2(a).
"Registrable Securities" shall mean (i) any shares of Common Stock owned
by, or otherwise hereafter acquired by, the Medicor Parties, the ERI Parties or
the Belfer Parties, and (ii) any securities issued as a dividend on or other
distribution with respect to or in exchange, replacement or in subdivision of,
any such Common Stock. As to any particular Registrable Securities, such
securities shall cease to be Registrable Securities when (A) a registration
statement with respect to the sale of such securities shall have been declared
effective under the Securities Act and such securities shall have been disposed
of in accordance with such registration statement, or (B) such securities shall
have been sold (other than in a privately negotiated sale) pursuant to Rule 144
(or any successor provision) under the Securities Act.
"Registration Expenses" shall have the meaning set forth in Section 3.5(a).
"Securities Act" shall mean the Securities Act of 1933, as amended, and the
rules and regulations of the Commission thereunder, as the same shall be in
effect at the time.
"Shareholder Party" or "Shareholder Parties" shall mean ERI, the Medicor
Group and/or the Belfer Group, as applicable.
"Shareholders Agreement" shall have the meaning set forth in the preamble
to this Agreement.
"Shares" shall mean shares of Common Stock.
"Shelf Offering" shall have the meaning given in Section 3.1(c)(6).
"Shelf Registration Statement" shall have the meaning given in Section
3.1(c)(6).
"Short-Form Registrations" shall have the meaning set forth in Section
3.l(a).
"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.
"Transfer" shall mean to sell, transfer, assign, pledge or otherwise
dispose.
"underwriter" shall mean nationally recognized investment banking firm with
experience serving as lead managing underwriter for public offerings of the
stock of companies engaged in the exploration, development and production of oil
and natural gas.
"WELLC" shall have the meaning set forth in the preamble to this Agreement.
3
"Westport" shall have the meaning set forth in the preamble to this
Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.1. Representations and Warranties of the Company. The Company
hereby represents and warrants to the other parties hereto as follows: The
Company has all requisite corporate power and authority to enter into this
Agreement and to consummate the transactions contemplated hereby. The execution
and delivery by the Company of this Agreement, and the consummation by the
Company of the transactions contemplated hereby, have been duly authorized by
all necessary corporate action on the part of the Company. This Agreement has
been duly executed and delivered by the Company and constitutes a valid and
binding obligation of the Company enforceable against the Company in accordance
with its terms. No consent, approval, order or authorization of, or
registration, declaration or filing with, any court, administrative agency or
commission or other governmental authority or instrumentality, domestic or
foreign, is required by, or with respect to, the Company in connection with the
execution and delivery of this Agreement by the Company or the consummation by
the Company of the transactions contemplated hereby. The execution and delivery
of this Agreement by the Company and the consummation of the transactions
contemplated hereby by the Company does not conflict with, or result in a breach
of, any law or regulation of any governmental authority applicable to the
Company or any material agreement to which the Company is a party.
Section 2.2. Representations and Warranties of Medicor. Each Medicor Person
hereby severally and not jointly represents and warrants to the other parties
hereto as follows:
(a) Authority. Each Medicor Person has all requisite corporate or
other power and authority to enter into this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery by such Medicor
Person of this Agreement, and the consummation by such Medicor Person of the
transactions contemplated hereby, have been duly authorized by all necessary
corporate or other action on the part of such Medicor Person. This Agreement has
been duly executed and delivered by such Medicor Person and constitutes a valid
and binding obligation of such Medicor Person enforceable against such Medicor
Person in accordance with its terms. No consent, approval, order or
authorization of, or registration, declaration or filing (other than the filing
of an appropriate amendment to Schedule 13D in connection with the transactions
contemplated by this Agreement) with, any court, administrative agency or
commission or other governmental authority or instrumentality, domestic or
foreign, is required by, or with respect to, such Medicor Person in connection
with the execution and delivery of this Agreement by such Medicor Person or the
consummation by such Medicor Person of the transactions contemplated hereby. The
execution and delivery of this Agreement by such Medicor Person and the
consummation by such Medicor Person of the transactions contemplated hereby by
it do not conflict with, or result in a breach of, any law or regulation of any
governmental authority applicable to such Medicor Person or any material
agreement to which such Medicor Person is a party.
(b) Shares. Schedule 2.2 sets forth the ownership of the Shares held
by each Medicor Person as of the date hereof.
4
Section 2.3. Representations and Warranties of ERI. ERI hereby represents
and warrants to the other parties hereto as follows:
(a) Authority. Each of the ERI Parties has all requisite corporate or
other power and authority to enter into this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery by the ERI Parties
of this Agreement and the consummation by the ERI Parties of the transactions
contemplated hereby have been duly authorized by all necessary corporate or
other action on the part of each of the ERI Parties. This Agreement has been
duly executed and delivered by each of the ERI Parties and constitutes a valid
and binding obligation of each of the ERI Parties enforceable against each of
the ERI Parties in accordance with its terms. No consent, approval, order or
authorization of, or registration, declaration or filing (other than the filing
of an appropriate amendment to Schedule 13D in connection with the transactions
contemplated by this Agreement) with, any court, administrative agency or
commission or other governmental authority or instrumentality, domestic or
foreign, is required by, or with respect to, any of the ERI Parties in
connection with the execution and delivery of this Agreement by the ERI Parties
or the consummation by each of the ERI Parties of the transactions contemplated
hereby. The execution and delivery by the ERI Parties of this Agreement and the
consummation by the ERI Parties of the transactions contemplated hereby do not
conflict with, or result in a breach of, any law or regulation of any
governmental authority applicable to any of the ERI Parties or any material
agreement to which any of the ERI Parties is a party.
(b) Shares. Schedule 2.3 sets forth the ownership of the Shares held
by the ERI Parties as of the date hereof.
Section 2.4. Representations and Warranties of the Belfer Group. Each
Belfer Person hereby severally and not jointly represents and warrants to the
other parties hereto as follows:
(a) Authority. Such Belfer Person has all requisite corporate or other
power and authority to enter into this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery by such Belfer
Person of this Agreement, and the consummation by such Belfer Person of the
transactions contemplated hereby, have been duly authorized by all necessary
corporate or other action on the part of such Belfer Person. This Agreement has
been duly executed and delivered by such Belfer Person and constitutes a valid
and binding obligation of such Belfer Person enforceable against such Belfer
Person in accordance with its terms. No consent, approval, order or
authorization of, or registration, declaration or filing (other than the filing
of an appropriate amendment to Schedule 13D in connection with the transactions
contemplated by this Agreement) with, any court, administrative agency or
commission or other governmental authority or instrumentality, domestic or
foreign, is required by, or with respect to, such Belfer Person in connection
with the execution and delivery of this Agreement by such Belfer Person or the
consummation by such Belfer Person of the transactions contemplated hereby. The
execution and delivery of this Agreement by such Belfer Person and the
consummation by such Belfer Person of the transactions contemplated hereby by it
do not conflict with, or result in a breach of, any law or regulation of any
governmental authority applicable to such Belfer Person or any material
agreement to which such Belfer Person is a party.
5
(b) Shares. Schedule 2.4 sets forth the ownership of the Shares held
by each Belfer Person as of the date hereof.
ARTICLE III
REGISTRATION RIGHTS
Section 3.1. Demand Registrations.
(a) Requests for Registration. Each of the Medicor Group, on behalf of
the Medicor Parties, ERI, on behalf of the ERI Parties, and the Belfer Group, on
behalf of the Belfer Parties, shall have the right to request registration under
the Securities Act of all or part of their Registrable Securities on Form S-1 or
any similar long-form registration or, if available, on Form S-2 or S-3 or any
similar short-form registration ("Short-Form Registrations") in accordance with
this Article III. All registrations requested pursuant to this Section 3.l(a)
are referred to herein as "Demand Registrations."
(b) Short-Form Registrations. Demand Registrations will be Short-Form
Registrations whenever the Company is permitted to use any applicable short
form. The Company will use its best efforts to make Short-Form Registrations
available for the sale of Registrable Securities. Demand Registration requests
may be for shelf registrations if the Company is then eligible to effect shelf
registrations.
(c) Restrictions on Demand Registrations. The registration rights
granted under this Section 3.1 are expressly subject to the following terms and
conditions:
1. The Company will not be obligated to effect any Demand
Registration within six (6) months after the effective date of a previous Demand
Registration (including any registration or offering of shares pursuant to the
ERI letter to the Company dated September 11, 2003 (the "ERI Letter") to the
extent such registration or offering would constitute a "Demand Registration"
under and as defined in the Shareholders Agreement, provided that solely for
purposes of making such determination the registration requested in the ERI
Letter shall be deemed to have satisfied the requirements for an effective
"Demand Registration" set forth in Section 5.1(c)(3) of the Shareholders
Agreement).
2. The Company may postpone for up to ninety (90) days the filing
or the effectiveness of a registration statement for a Demand Registration (and
any registration or underwritten offering of securities pursuant to Section
3.1(c)(6), whether or not such registration or underwritten offering constitutes
a Demand Registration) if the Company notifies the Shareholder Party initiating
the Demand Registration (or such other registration or underwritten offering
pursuant to Section 3.1(c)(6)) within fifteen (15) days after receipt of request
for such registration (i) that the Company is at such time conducting or about
to conduct an underwritten public offering of its securities for its own account
and the Board of Directors has determined in its good faith judgment that such
offering would be materially adversely affected by such registration or
underwritten offering requested by such Shareholder Party or (ii) that the Board
of Directors has determined, in its good faith judgment, that such Demand
Registration (or registration or underwritten offering pursuant to Section
3.1(c)(6)) would reasonably be expected to have an adverse effect on any
proposal or plan by the Company or any of its Subsidiaries to engage in any
6
acquisition of assets (other than in the ordinary course of business) or any
merger, consolidation, tender offer or similar transaction; provided, that, in
such event, the holders of Registrable Securities initially requesting such
Demand Registration (or, to the extent it would count as a Demand Registration,
such registration or underwritten offering pursuant to Section 3.1(c)(6)) will
be entitled to withdraw such request and, if such request is withdrawn, such
Demand Registration (or registration or underwritten offering pursuant to
Section 3.1(c)(6)) will not count as a Demand Registration hereunder and the
Company will pay all Registration Expenses in connection with such request.
3. Any request for a Demand Registration shall not be otherwise
deemed to be effective unless such request includes the lesser of (i) at least
ten percent (10%) of the Company's outstanding Common Stock or (ii) all of the
Common Stock owned by the Shareholder Party or Shareholder Parties making the
request. Each request for a Demand Registration shall specify the approximate
number of Registrable Securities requested to be registered and the anticipated
per share price range for such offering.
4. The Medicor Parties and the ERI Parties shall each be entitled
to initiate only three (3) Demand Registrations and the Belfer Parties shall be
entitled to initiate only two (2) Demand Registrations to register Registrable
Securities under the terms of this Section 3.1; provided, if one of such
Shareholder Parties joins in the Demand Registration initiated by the other in
accordance with Section 3.1(c)(5), the initiating Shareholder Party shall not be
deemed to have initiated the Demand Registration for purposes (and solely for
the purposes) of the limitation contained in this sentence. Notwithstanding the
foregoing, if the ERI Letter or the transactions entered into as a consequence
thereof constitute a "Demand Registration" under and as defined in the
Shareholders Agreement (provided that solely for purposes of making such
determination the registration requested in the ERI Letter shall be deemed to
have satisfied the requirements for an effective "Demand Registration" set forth
in Section 5.1(c)(3) of the Shareholders Agreement), then the ERI Parties shall
have the right to initiate only two (2) Demand Registrations under the terms of
this Section 3.1.
5. If at any time or from time to time any of the Shareholder
Parties shall request registration of any Registrable Securities in accordance
with this Section 3.1, the Company shall give the other Shareholder Parties
prompt written notice of the proposed registration. The other Shareholder
Parties shall have the right to join in such registration by giving notice to
the Company within five (5) business days after such Shareholder Party receives
notice of the proposed registration from the Company and the Company shall
include in such registration the number of Registrable Securities requested by
such other Shareholder Parties on the same terms and conditions as the
Registrable Securities of the Shareholder Party initiating the request. If the
managing underwriter or underwriters of a proposed offering for which securities
of more than one of the Shareholder Parties are included pursuant to this
Section 3.1(c)(5) advise the Company in writing that in its or their good faith
judgment the total amount of securities to be included in such offering exceeds
the number which can be sold in such offering within a price range reasonably
acceptable to the Shareholder Parties, then in such event the securities to be
included in such offering shall be allocated pro rata among such Shareholder
Parties and their Permitted Transferees participating in the offering based upon
the number of Shares owned by each such Shareholder Party and its Permitted
Transferees.
7
6. Any registration of Registrable Securities requested to be
made on a registration statement filed on Form S-3 pursuant to Rule 415 of the
Securities Act (each a "Shelf Registration Statement") shall constitute a Demand
Registration and be restricted for use pursuant to a firmly underwritten
offering of Common Stock. Each offering of Registrable Securities pursuant to a
Shelf Registration Statement (a "Shelf Offering") shall constitute a Demand
Registration (other than for purposes of Section 3.1(c)(1)) and must satisfy all
requirements for a Demand Registration set forth in this Article III; provided,
however, that a Shelf Offering for (i) sales of Common Stock constituting block
sales of less than five percent (5%) of the Common Stock outstanding to
institutional investors in solicited transactions, or (ii) sales into the market
in unsolicited brokers transactions will not be required to be a firm commitment
underwritten offering and will not constitute a Demand Registration if the total
amount of shares registered for sale in this manner involves less than ten
percent (10%) of the shares of Common Stock then outstanding. Notwithstanding
the foregoing, in the event that each of the following occurs:
(x) a Shareholder Party makes a Demand Registration to register shares
pursuant to a Shelf Registration Statement; and
(y) the Shareholder Party requesting the Shelf Registration Statement
makes a Demand Registration in connection with a Shelf Offering (other than
pursuant to clauses (i) or (ii) of this Section 3.1(c)(6); and
(z) no other Shareholder Party exercises its rights under Section
3.2(c)(5) hereof to participate in the registration described in clause (x) or
the Shelf Offering described in clause (y),
then the Shelf Offering described in clause (y) shall not count as a Demand
Registration for purposes of (and solely for purposes of) calculating the number
of Demand Registrations available to a Shareholder Party pursuant to Section
5.2(c)(3). The foregoing sentence shall apply only with respect to the first
Demand Registration for a Shelf Offering made by a Shareholder Party following a
Demand Registration made by such party requesting that shares be registered
pursuant to a Shelf Registration Statement, and shall not apply to any
subsequent Demand Registrations by such Shareholder Party made in connection
with Shelf Offerings.
(d) Other Registration Rights. The Company will not grant to any
Person the right to request the Company to register any equity securities of the
Company with terms more favorable to such Person than those granted in this
Agreement without the prior written consent of the Medicor Group, ERI and the
Belfer Group.
(e) Priority on Over-Allotments. In the event the underwriters of any
offering made pursuant to a Demand Registration exercise one or more
over-allotment options with respect such offering, the shares to be included in
such over-allotment option(s) will be allocated pro rata among the holders of
securities participating such offering on the basis of the number of securities
of each such party registered in the underlying registration to which the
over-allotment option relates.
8
Section 3.2. Piggyback Registrations.
(a) Right to Piggyback. Whenever the Company proposes to register any
of its equity securities under the Securities Act (other than a registration on
Form S-4 or Form S-8 or any successor or similar forms and other than a Demand
Registration pursuant to Section 3.1) and the registration form to be used may
be used for the registration of Registrable Securities (a "Piggyback
Registration"), whether or not for sale for its own account, the Company will
give prompt written notice to the Medicor Group, on behalf of the Medicor
Parties, ERI, on behalf of the ERI Parties, and the Belfer Group, on behalf of
the Belfer Parties, of its intention to effect such a registration and will
include in such registration all Registrable Securities with respect to which
the Company has received written requests for inclusion therein within twenty
(20) days after the receipt of the Company's notice. The Company will use its
reasonable best efforts to include, and to cause the managing underwriters, if
applicable, to include in the proposed offering such Registrable Securities on
the same terms and conditions as the securities of the Company included in such
registration.
(b) Priority on Primary Registrations. If a Piggyback Registration is
an underwritten primary registration on behalf of the Company, and the managing
underwriters advise the Company in writing that in their opinion the number of
securities requested to be included in such registration exceeds the number
which can be sold in such offering within a price range reasonably acceptable to
the Company, the Company will include in such registration (i) first, the
securities the Company proposes to sell, to the extent of availability and, (ii)
second, all other securities (including the Registrable Securities) requested to
be included in such registration, pro rata among the respective holders thereof
on the basis of the number of securities owned by each such holder. In the event
the underwriters of such primary registration exercise one or more
over-allotment options with respect thereto, the shares to be included in such
over-allotment option(s) will be allocated pro rata among the Company and the
holders of securities described in item (ii) of this Section 3.2(b) on the basis
of the number of securities of each such party registered in underlying
registration to which the over-allotment option relates.
(c) Priority on Secondary Registrations. If a Piggyback Registration
is an underwritten secondary registration on behalf of holders of the Company's
securities, and the managing underwriters advise the Company in writing that in
their opinion the number of securities requested to be included in such
registration exceeds the number which can be sold in such offering within a
price range reasonably acceptable to such holders, the securities which can be
included in such registration shall be allocated as follows: (i) first, the
securities requested to be included in such registration by the holders of the
Company's securities on whose behalf the registration is being made, (ii) then,
to the extent of availability, securities to be registered for the account of
the Company and (iii) thereafter, to the extent of availability, to other
security holders exercising piggyback registration rights, pro rata based upon
the number of Shares owned by each such holder. In the event the underwriters of
such secondary registration exercise one or more over-allotment options with
respect thereto, the shares to be included in such over-allotment option(s) will
be allocated pro rata among the holders of the Company's securities on whose
behalf such secondary registration was made, the Company, and the holders of
securities described in item (iii) of this Section 3.2(c) on the basis of the
number of securities of each such party registered in the underlying
registration to which the over-allotment option relates.
9
(d) Limited Purpose Shelf Registration Statement. In order to
facilitate the exercise by the Medicor Group, ERI and the Belfer Group of their
Piggyback Registration rights, upon request of either the Medicor Group, ERI or
the Belfer Group (any such request shall not constitute a Demand Registration
for purposes of Section 3.1), the Company shall prepare and file with the
Commission one or more registration statements on Form S-3 under Rule 415 of the
Securities Act providing for the resale of Registrable Securities in an amount
of shares to be mutually agreed by Company and the Medicor Group, ERI and the
Belfer Group from time to time, provided, that such registration statement on
Form S-3 shall be restricted for use by the holders of the securities subject to
such registration statement only for participation pursuant to Section 3.2 in a
firmly underwritten public offering of Common Stock proposed by the Company for
the account of the Company or the account of any other security holder.
Section 3.3. Holdback Agreements.
(a) If requested in writing by the Company or the managing
underwriters, if any, of any registration effected pursuant to Sections 3.1 or
3.2, the Medicor Group agrees not to and will cause the other Medicor Parties
not to, ERI agrees not to and will cause the other ERI Parties not to, and the
Belfer Group agrees not to and will cause the other Belfer Parties not to,
effect any public sale or distribution (including sales pursuant to Rule 144) of
equity securities of the Company, or any securities convertible into or
exchangeable or exercisable for such securities, during the time period
reasonably requested by the managing underwriters, not to exceed seven (7) days
prior to and the 90-day period beginning on the effective date of any
underwritten Demand Registration, any underwritten Piggyback Registration or
other underwritten registration by the Company of its securities (except as part
of such underwritten registration).
(b) If requested in writing by the managing underwriters of any
registration effected pursuant to Section 3.1 or 3.2, the Company agrees (i) not
to effect any public sale or distribution of its equity securities, or any
securities convertible into or exchangeable or exercisable for such securities,
during the time period reasonably requested by the managing underwriters, not to
exceed seven days prior to and during the 90-day period beginning on the
effective date of any underwritten Demand Registration or any underwritten
Piggyback Registration (except as part of such underwritten registration or
pursuant to registrations on Form S-4 or Form S-8 or any successor forms), and
(ii) to cause each holder of its Common Stock, or any securities convertible
into or exchangeable or exercisable for Common Stock, purchased from the Company
at any time after the date of this Agreement (other than in a registered public
offering), to so agree.
(c) If the Company has previously filed a registration statement with
respect to Registrable Securities pursuant to Sections 3.1 or 3.2 hereof or
pursuant to Sections 5.1 or 5.2 of the Shareholders Agreement, and if such
previous registration has not been withdrawn or abandoned, the Company will not
file or cause to be effected any other registration of any of its equity
securities or securities convertible or exchangeable into or exercisable for its
equity securities under the Securities Act (except on Form S-4 or Form S-8 or
any successor forms), whether on its own behalf or at the request of any holder
or holders of such securities, until a period of at least ninety (90) days has
elapsed from the effective date of such previous registration.
10
Section 3.4. Registration Procedures. Whenever the Medicor Group, on behalf
of the Medicor Parties, ERI, on behalf of the ERI Parties, or the Belfer Group
on behalf of the Belfer Parties has requested that any Registrable Securities be
registered pursuant to this Agreement, the Company will use its best efforts to
effect the registration and the sale of such Registrable Securities in
accordance with the intended method of disposition thereof, and pursuant thereto
the Company will as expeditiously as possible:
(a) prepare and file with the Commission a registration statement with
respect to such Registrable Securities and thereafter use its reasonable best
efforts to cause such registration statement to become effective (provided that,
before filing a registration statement or prospectus or any amendments or
supplements thereto, the Company will furnish to the counsel selected by the
holders of the Registrable Securities covered by such registration statement
copies of all such documents proposed to be filed, which documents will be
subject to reasonable review of such counsel);
(b) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement effective for
a period of either (i) not less than six months (subject to extension pursuant
to Section 3.7(b)) or, if such registration statement relates to an underwritten
offering, such longer period as in the opinion of counsel for the underwriters a
prospectus is required by law to be delivered in connection with sales of
Registrable Securities by an underwriter or dealer or (ii) such shorter period
as will terminate when all of the securities covered by such registration
statement have been disposed of in accordance with the intended methods of
disposition by the seller or sellers thereof set forth in such registration
statement (but in any event not before the expiration of any longer period
required under the Securities Act), and to comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by such
registration statement until such time as all of such securities have been
disposed of in accordance with the intended methods of disposition by the seller
or sellers thereof set forth in such registration statement;
(c) furnish to each seller of Registrable Securities such number of
copies of such registration statement, each amendment and supplement thereto,
the prospectus included in such registration statement (including each
preliminary prospectus) and such other documents as such seller may reasonably
request in order to facilitate the disposition of the Registrable Securities
owned by such seller;
(d) use its best efforts to register or qualify such Registrable
Securities under such other securities or blue sky laws of such jurisdictions as
any seller reasonably requests and do any and all other acts and things which
may be reasonably necessary or advisable to enable such seller to consummate the
disposition in such jurisdictions of the Registrable Securities owned by such
seller (provided that the Company will not be required to (i) qualify generally
to do business in any jurisdiction where it would not otherwise be required to
qualify but for this subparagraph, (ii) subject itself to taxation in any such
jurisdiction or (iii) consent to general service of process in any such
jurisdiction);
(e) notify each seller of such Registrable Securities, at any time
when a prospectus relating thereto is required to be delivered under the
Securities Act, upon discovery that, or upon the discovery of the happening of
11
any event as a result of which, the prospectus included in such registration
statement contains an untrue statement of a material fact or omits any fact
necessary to make the statements therein not misleading in the light of the
circumstances under which they were made, and, at the request of any such
seller, the Company will prepare and furnish to such seller a reasonable number
of copies of a supplement or amendment to such prospectus so that, as thereafter
delivered to the purchasers of such Registrable Securities, such prospectus will
not contain an untrue statement of a material fact or omit to state any fact
necessary to make the statements therein not misleading in the light of the
circumstances under which they were made;
(f) cause all such Registrable Securities to be listed on each
securities exchange on which similar securities issued by the Company are then
listed and, if not so listed, to be listed on the Nasdaq National Market or the
New York Stock Exchange;
(g) provide a transfer agent and registrar for all such Registrable
Securities not later than the effective date of such registration statement;
(h) enter into such customary agreements (including underwriting
agreements in customary form for similar offerings) and take all such other
actions as the holders of a majority of the Registrable Securities being sold or
the underwriters, if any, reasonably request in order to expedite or facilitate
the disposition of such Registrable Securities (including, without limitation,
effecting a stock split or a combination of shares);
(i) make available for inspection by any seller of Registrable
Securities, any underwriter participating in any disposition pursuant to such
registration statement, and any attorney, accountant or other agent retained by
any such seller or underwriter, all financial and other records, pertinent
corporate documents and properties of the Company, and cause the Company's
officers, Directors, employees and independent accountants to supply all
information reasonably requested by any such seller, underwriter, attorney,
accountant or agent in connection with such registration statement;
(j) otherwise use its reasonable best efforts to comply with all
applicable rules and regulations of the Commission, and make available to its
security holders, as soon as reasonably practicable, an earnings statement
covering the period of at least twelve months beginning with the first day of
the Company's first full calendar quarter after the effective date of the
registration statement, which earnings statement shall satisfy the provisions of
Section 11(a) of the Securities Act and Rule 158 thereunder;
(k) in the event of the issuance of any stop order, injunction or
other order or requirement suspending the effectiveness of a registration
statement, or of any order suspending or preventing the use of any related
prospectus or suspending the qualification of any securities included in such
registration statement for sale in any jurisdiction, the Company will use its
reasonable best efforts promptly to obtain the withdrawal of such order and to
notify the holders of all of the Registrable Securities covered by the
registration statement of such order;
(l) obtain a cold comfort letter, dated the effective date of such
registration statement (and, if such registration includes an underwritten
public offering, dated the date of the closing under the underwriting
12
agreement), signed by the Company's independent public accountants in customary
form and covering such matters of the type customarily covered by cold comfort
letters as the holders of a majority of the Registrable Securities being sold
reasonably request (provided that such Registrable Securities constitute at
least 10% of the securities covered by such registration statement);
(m) provide a legal opinion of the Company's outside counsel, dated
the effective date of such registration statement (and, if such registration
includes an underwritten public offering, dated the date of the closing under
the underwriting agreement), with respect to the registration statement, each
amendment and supplement thereto, the prospectus included herein (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;
(n) promptly furnish to the managing underwriter, if any, and each
seller of Registrable Securities copies of any written request by the Commission
or any state securities authority for amendments or supplements to a
registration statement or prospectus or for additional information; and
(o) make reasonably available its employees and personnel and
otherwise provide reasonable assistance to any underwriters in the marketing of
Registrable Securities in any underwritten offering.
The Company may require each seller of Registrable Securities as to
which any registration is being effected to furnish the Company such information
regarding such seller and the distribution of such securities as the Company may
from time to time reasonably request in writing.
Section 3.5. Registration Expenses.
(a) The Company shall pay all Registration Expenses relating to any
registration of Registrable Securities hereunder. "Registration Expenses" shall
mean any and all fees and expenses incident to the Company's performance of or
compliance with this Article III, including, without limitation: (i) Commission,
stock exchange or National Association of Securities Dealers, Inc. registration
and filing fees and all listing fees and fees with respect to the inclusion of
securities on the Nasdaq National Market, (ii) fees and expenses of compliance
with state securities or "blue sky" laws and in connection with the preparation
of a "blue sky" survey, including, without limitation, reasonable fees and
expenses of blue sky counsel, (iii) printing expenses, (iv) messenger and
delivery expenses, (v) fees and disbursements of counsel for the Company, (vi)
with respect to each registration, reasonable fees and disbursements of one
counsel for the selling holders of Shares (selected by the holders making the
Demand Registration request, in the case of a registration pursuant to Section
3.1, and selected by the holders of a majority of the Registrable Securities
included in such registration, in the case of a registration pursuant to Section
3.2) as well as of one local counsel, (vii) fees and disbursements of all
independent public accountants (including the expenses of any audit and/or "cold
comfort" letter) and fees and expenses of other persons, including special
experts, retained by the Company, and (viii) any other fees and disbursements of
underwriters, if any, customarily paid by issuers or sellers of securities.
13
(b) Notwithstanding the foregoing, (i) the provisions of this Section
3.5 shall be deemed amended to the extent necessary to cause these expense
provisions to comply with "blue sky" laws of each state in which the offering is
made and (ii) in connection with any registration hereunder, each holder of
Registrable Securities being registered shall pay all underwriting discounts and
commissions and transfer taxes, if any, attributable to the Registrable
Securities included in the offering by such holder.
Section 3.6. Indemnification.
(a) The Company agrees to indemnify and hold harmless, to the extent
permitted by law, each holder of Registrable Securities, 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, 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, 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 (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 3.6 collectively called an "application")
executed by or on behalf of the Company or based upon written information
furnished by or on behalf of the Company 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 the Company 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 the Company 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 the Company by such holder expressly for use therein
or by such holder's failure to deliver a copy of the registration statement or
prospectus or any amendments or supplements thereto after the Company has
furnished such holder with a sufficient number of copies of the same. In
connection with an underwritten offering, the Company will indemnify such
underwriters, their officers and Directors and each Person who controls such
underwriters (within the meaning of the Securities Act) to the same extent as
provided above with respect to the indemnification of the holders of Registrable
Securities.
(b) In connection with any registration statement in which a holder of
Registrable Securities is participating, each such holder will furnish to the
Company in writing such information and documents as the Company reasonably
requests for use in connection with any such registration statement or
prospectus and, to the extent permitted by law, will indemnify and hold harmless
the Company, its Directors and officers and each other Person who controls the
Company (within the meaning of the Securities Act) against any losses, claims,
damages, liabilities, joint or several, to which the Company or any such
Director or officer or controlling person may become subject under the
14
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 the Company by such holder expressly for use therein, and such holder will
reimburse the Company 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 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 securities by any holder
thereof. The Company also agrees to make such provisions, as are reasonably
requested by any indemnified party, for contribution to such party in the event
the Company's indemnification is unavailable for any reason.
Section 3.7. Participation in Underwritten Registrations.
(a) If requested by the underwriters for any underwritten offering
pursuant to a Demand Registration requested under Section 3.1, the Company shall
enter into a customary underwriting agreement with the underwriters. Such
underwriting agreement shall be satisfactory in form and substance to the Person
who requested such registration and shall contain such representations and
warranties by, and such other agreements on the part of, the Company and such
other terms as are generally prevailing in agreements of that type, including,
without limitation, indemnities and contribution agreements. Such underwriting
agreement shall also contain such representations, warranties, indemnities and
15
contributions by the participating holders as are customary in agreements of
that type. In the case of a registration pursuant to Section 3.2 hereof, if the
Company shall have determined to enter into any underwriting agreements in
connection therewith, all of the holders' Registrable Securities to be included
in such registration shall be subject to such underwriting agreement. Such
underwriting agreement shall also contain such representations, warranties,
indemnities and contributions by the participating holders as are customary in
agreements of that type.
(b) Each Person that is participating in any registration hereunder
agrees that, upon receipt of any notice from the Company of the happening of any
event of the kind described in Section 3.4(e) above, such Person will forthwith
discontinue the disposition of its Registrable Securities pursuant to the
registration statement until such Person's receipt of the copies of a
supplemented or amended prospectus as contemplated by such Section 3.4(e). In
the event the Company shall give any such notice, the applicable time period
mentioned in Section 3.4(b) during which a registration statement is to remain
effective shall be extended by the number of days during the period from and
including the date of the giving of such notice pursuant to this paragraph to
and including the date when each seller of a Registrable Security covered by
such registration statement shall have received the copies of the supplemented
or amended prospectus contemplated by Section 3.4(e).
Section 3.8. Current Public Information. At all times after the Company has
filed a registration statement with the Commission pursuant to the requirements
of either the Securities Act or the Exchange Act, the Company will file all
reports required to be filed by it under the Act and the Exchange Act and the
rules and regulations adopted by the Commission thereunder, and will take such
further action as any holder or holders of Registrable Securities may reasonably
request, all to the extent required to enable such holders to sell Registrable
Securities pursuant to Rule 144.
Section 3.9. Cooperation. If the Company determines to authorize and/or
issue any capital stock or other debt or equity securities in a public offering,
each of the Shareholder Parties and their Permitted Transferees agrees to
cooperate with the Company and to take all action necessary to assist the
Company in consummating such transaction.
ARTICLE IV
GENERAL PROVISIONS
Section 4.1. 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:
Xxxxxx X. Xxxxxx
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax Number: (000) 000-0000
16
Phone Number: (000) 000-0000
With a copy to:
Xxxxxxxx X. Xxxxxx
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax Number: (000) 000-0000
Phone Number: (000) 000-0000
If to Westport:
Xxxxxx X. Xxxx,
Chairman and Chief Executive Officer
0000 Xxxxxxxx, Xxxxx 0000
Xxxxxx, XX. 00000
Fax Number: (000) 000-0000
Phone Number: (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 the Medicor Group:
Medicor Foundation
Xxxxxxxxxxx 00
Postfach 130
FL-9495 Triesen
Liechtenstein
Attention: Xxxxx X. Xxxxxx
Fax (000) 000 0000
Tel (000) 000 0000
And to:
Westport Energy LLC
c/o Westport Investments Limited
Xxxxxx Manor
Xxxxxx Xxx
X.X. Xxx X-0000
00
Xxxxxx, Xxxxxxx
Fax Number: (000) 000-0000
With a copy to:
Xxxxxxx X. Xxxx
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 ERI Investments, Inc.:
ERI Investments, Inc.
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
18
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
or to such other address as any Shareholder Party shall specify by written
notice so given, and such notice shall be deemed to have been delivered as of
the date so telecommunicated, personally delivered or mailed.
Section 4.2. Assignment; Binding Effect; Benefit. Any Shareholder Party
that Transfers to a Permitted Transferee shall promptly give written notice of
such Transfer to the other Shareholder Parties and the Company pursuant to
Section 4.1 and shall deliver to such Shareholder Parties and the Company a copy
of the written agreement pursuant to which the Permitted Transferee has agreed
to be bound by the terms of this Agreement. Other than Transfers to Permitted
Transferees, neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned by any of the Shareholder Parties or
their Permitted Transferees without the prior written consent of the other
Shareholder Parties; provided, that the Medicor Parties, the ERI Parties and the
Belfer Parties may assign all or a portion of their rights under Article III in
connection with any Transfer of Registrable Securities made in accordance with
this Agreement if immediately after the Transfer, the transferee beneficially
owns at least ten percent (10%) of the Common Stock of the Company then
outstanding, in which event each transferee will have rights and obligations
under Article III as if it was a party to this Agreement to the extent of such
assignment. 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.
Section 4.3. Entire Agreement. This Agreement, the exhibits and schedules
hereto and any certificate delivered by the parties hereto in connection
herewith constitute the entire agreement among the parties hereto with respect
to the subject matter hereof and supersede all prior agreements and
understandings (oral and written) among the parties with respect hereto.
Section 4.4. Amendment. No amendment, modification or waiver of this
Agreement shall be effective against any party hereto unless it shall be in
writing and signed by such party. Notwithstanding the foregoing, Exhibit A shall
be amended or modified from time to time to reflect Transfers to Permitted
Transferees by giving written notice of such Transfers to the Shareholder
Parties and the Company pursuant to Section 4.1.
Section 4.5. Governing Law; Jurisdiction. This Agreement shall be governed
by and construed in accordance with the laws of the State of Nevada without
regard to its rules of conflict of laws. The Shareholder Parties and the Company
agree that any suit, action or proceeding arising out of, or with respect to,
this Agreement or any judgment entered by any court in respect thereof may be
brought only in the courts of the State of Nevada or the federal district courts
located within the State of Nevada and the Shareholder Parties and the Company
hereby accept the exclusive jurisdiction of those courts for the purpose of any
suit, action or proceeding.
19
Section 4.6. Counterparts. This Agreement may be executed by the parties
hereto in separate counterparts, each of which when so executed and delivered
shall be an original, but all such counterparts shall together constitute one
and the same instrument. Each counterpart may consist of a number of copies of
this Agreement, each of which may be signed by less than all of the parties
hereto, but together all such copies are signed by all of the parties hereto.
Section 4.7. Headings. Headings of the Articles and Sections of this
Agreement are for convenience only and shall be given no substantive or
interpretive effect whatsoever.
Section 4.8. Interpretation. In this Agreement, unless the context
otherwise requires: (i) words describing the singular number shall include the
plural and vice versa; (ii) "including" shall mean including, without
limitation; (iii) words denoting any gender shall include all genders; and (iv)
words denoting natural persons shall include corporations and partnerships and
vice versa.
Section 4.9. Incorporation of Exhibits and Schedules. All exhibits and
schedules hereto are hereby incorporated herein and made a part hereof for all
purposes as if fully set forth herein.
Section 4.10. 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 4.11. 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 Company, the Shareholder
Parties and their Permitted Transferees shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions hereof in any court, this being in addition to any
other remedy to which they may be entitled at law or in equity.
Section 4.12. Confidentiality. None of the Medicor Parties, their
Affiliates, employees, agents or representatives, the ERI Parties, their
Affiliates, employees, agents or representatives nor the Belfer Parties, their
Affiliates, employees, agents or representatives shall disclose to any third
party any information obtained about the Company or its operations or business
which it may have acquired pursuant to this Agreement or the Shareholders
Agreement without the prior written consent of the Company; provided, that any
information that is otherwise publicly available, without breach of this
provision, or has been obtained from a third party without a breach of such
third party's duties, shall not be deemed confidential information.
Section 4.13. Effectiveness; Termination. This Agreement shall be effective
as of the date of termination of the Shareholders Agreement pursuant to the
terms of that certain Termination Agreement dated as of October 1, 2003, by and
20
among the Company and Shareholder Parties (the "Effective Date") and shall
continue in effect with respect to a Shareholder Party and its Permitted
Transferees as long as it holds Registrable Securities, provided, however, that
this Agreement may be terminated at any time when all of the parties who are
then bound hereby mutually consent to terminate this Agreement in writing.
Notwithstanding anything to the contrary contained in this Section 4.13, the
provisions of Section 4.12 shall not terminate.
Section 4.14. Belfer Group Representative. Xxxxxx X. Xxxxxx shall be the
initial Belfer Group representative (the "Belfer Group Representative"). The
Belfer Group Representative may be changed by delivery of a written notification
delivered to the parties hereto and executed by all of the members of the Belfer
Group. Each member of the Belfer Group hereby appoints the person or entity who
is, from time to time, duly appointed under this Section 4.14 as the Belfer
Group Representative to give any consent or approval, exercise any right or take
any action contemplated under this Agreement on behalf of the Belfer Group. The
members of the Belfer Group shall be so bound by the Belfer Group Representative
and the parties to this Agreement shall be entitled to rely on the actions taken
by the Belfer Group Representative contemplated by this Agreement.
Section 4.15. Medicor Group Representative. Xxxxxxx Xxxxxxx shall be the
initial Medicor Group representative (the "Medicor Group Representative"). The
Medicor Group Representative may be changed by delivery of a written
notification delivered to the parties hereto and executed by all of the members
of the Medicor Group. Each member of the Medicor Group hereby appoints the
person or entity who is, from time to time, duly appointed under this Section
4.15 as the Medicor Group Representative to give any consent or approval,
exercise any right or take any action contemplated under this Agreement on
behalf of the Medicor Group. The members of the Medicor Group shall be so bound
by the Medicor Group Representative and the parties to this Agreement shall be
entitled to rely on the actions taken by the Medicor Group Representative
contemplated by this Agreement. The inclusion of WELLC and Medicor in a group,
referenced in this Agreement as the Medicor Group, and the appointment by WELLC
and Medicor of a Medicor Group Representative, as set forth in this Section
4.15, are merely for administrative convenience. Each of Medicor and WELLC is a
distinct legal entity, and neither Medicor nor WELLC controls the other or is
under the common control of a third party.
21
IN WITNESS WHEREOF, the parties have executed this Registration Rights
Agreement and caused the same to be duly delivered on their behalf as of the day
and year first written above, to be effective as of the Effective Date.
WESTPORT RESOURCES CORPORATION
By: /S/ XXXXXX X. XXXX
Name: XXXXXX X. XXXX
Title: CHIEF EXECUTIVE OFFICER
WESTPORT ENERGY LLC
By: WESTPORT INVESTMENTS LIMITED, its
Managing Member
By: /S/ XXXXXXX XXXXXXX
Name: XXXXXXX XXXXXXX
Title: DULY AUTHORIZED SIGNATORY
ERI INVESTMENTS, INC.
By: /S/ XXXXXXX X. XXXXXXX
Name: XXXXXXX X. XXXXXXX
Title: VICE PRESIDENT
MEDICOR FOUNDATION
By: /S/ XXXXX XXXXXX
Name: XXXXX XXXXXX
Title: MEMBER OF THE FOUNDATION BOARD
By: /S/ XXXXX X. JOHANN
Name: XXXXX X. XXXXXX
Title: MEMBER OF THE FOUNDATION BOARD/SECRETARY
/S/ XXXXXX X. XXXXXX
Xxxxxx X. Xxxxxx, individually
S-1
THE XXXXXX X. AND XXXXX X. XXXXXX FAMILY FOUNDATION
By: /S/ XXXXXX X. XXXXXX
Name: Xxxxxx X. Xxxxxx
Title: Trustee and Donor
BELFER CORP.
By: /S/ XXXXXX X. XXXXXX
Name: Xxxxxx X. Xxxxxx
Title: President
XXXXX HOLDINGS PARTNERSHIP, L.P.
By: /S/ XXXXXX X. XXXXXX
Name: Xxxxxx X. Xxxxxx
Title: General Partner
LDB CORP.
By: /S/ XXXXXXXX X. XXXXXX
Name: Xxxxxxxx X. Xxxxxx
Title: President
S-2
XXXXXX X. XXXXXX 1990 FAMILY TRUST
By: /S/ XXXXXXXX X. XXXXXX
Name: Xxxxxxxx X. Xxxxxx
Title: Trustee
VANTZ LIMITED PARTNERSHIP
By: VANTZ LLC,
its General Partner
By: /S/ XXXXXXXX X. XXXXXX
Name: Xxxxxxxx X. Xxxxxx
Title: Managing Member
LDB TWO CORP.
By: /S/ XXXXXXXX X. XXXXXX
Name: Xxxxxxxx X. Xxxxxx
Title: President
BELFER TWO CORP.
By: /S/ XXXXXX X. XXXXXX
Name: Xxxxxx X. Xxxxxx
Title: Managing Member
LIZ PARTNERS, L.P.
By: LIZ ASSOCIATES LLC,
its General Partner
By: /S/ XXXXXX X. XXXXXX
Name: Xxxxxx X. Xxxxxx
Title: Managing Member
EXHIBIT A
Certain Stockholders
The Xxxxxx X. and Xxxxx X. Xxxxxx Family Foundation
Xxxxxx X. Xxxxxx
Belfer Corp.
Xxxxx Holdings Partnership, L.P.
LDB Corp.
Xxxxxx X. Xxxxxx 1990 Family Trust
Vantz Limited Partnership
LDB Two Corp.
Belfer Two Corp.
Liz Partners, L.P.
SCHEDULE 2.2
Ownership - Each Medicor Person
Stockholder Ownership of Common
Stock
as of the date hereof
Medicor Foundation 11,000,000
Westport Energy LLC 3,238,001
Total 14,238,001
Percentage of total outstanding Common Stock as of the 21.17%
date hereof
SCHEDULE 2.3
Ownership -- ERI Parties
Stockholder Ownership of Common
Stock
as of the date hereof
ERI Investments, Inc. 13,006,152
Total 13,006,152
Percentage of total outstanding Common Stock as of the 19.34%
date hereof
SCHEDULE 2.4
Ownership - Each Belfer Person
Stockholder Ownership of Common
Stock as of the date
hereof
The Xxxxxx X. and Xxxxx X. Xxxxxx Family Foundation(1) 174,793
Xxxxxx X. Xxxxxx --
Belfer Corp. (1) 1,003,270
Xxxxx Holdings Partnership, L.P. (1) 492,283
LDB Corp. (2) 112,552
Xxxxxx X. Xxxxxx 1990 Family Trust(2) 230,040
Vantz Limited Partnership (2) 261,610
LDB Two Corp. (2) 823,031
Belfer Two Corp. (1) 1,157,309
Liz Partners, L.P. (1) 495,899
Total 4,750,787
Percentage of total outstanding Common Stock as of the 7.06%
date hereof
___________
(1) c/o Xxxxxx X. Xxxxxx, 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx,
Xxx Xxxx 00000
(2) c/o Xxxxxxxx X. Xxxxxx, 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx,
Xxx Xxxx 00000
