Exhibit 10.5
AGREEMENT
THIS AGREEMENT ("Agreement") is made as of this 28th day of
March, 2003, by and among ERI INVESTMENTS, INC., a Delaware Corporation, and its
subsidiary corporations, EQUITABLE PRODUCTION COMPANY and NORESCO HOLDINGS, INC.
(hereinafter collectively referred to as "Donors"), and EQUITABLE RESOURCES
FOUNDATION, INC., a tax-exempt, charitable foundation incorporated under the
laws of the Commonwealth of Pennsylvania (hereinafter referred to as the
"Foundation").
WITNESSETH:
WHEREAS, the Donors currently intend to make an irrevocable
gift during the year 2003 of up to One Million (1,000,000) shares of the common
stock (hereinafter referred to as the "Stock"), par value $0.01 per share, of
Westport Resources Corporation, a Nevada corporation ("Westport"), to the
Foundation, which gift shall be made in such stages as Donors and the Foundation
shall agree; and
WHEREAS, Equitable Production Company and NORESCO Holdings,
Inc. have made an irrevocable commitment that they will collectively donate a
minimum of Nine Hundred Five Thousand (905,000) shares of Stock to the
Foundation during the year 2003; and
WHEREAS, the Stock, in the hands of the Donors, is subject to
certain limitations on transfer imposed by Rule 144 of the Securities and
Exchange Commission promulgated pursuant to the Securities Act of 1933, as
amended (the "Act"); and
WHEREAS, it is the intention and belief of the parties hereto
that the Stock is and shall be freely and immediately transferable by the
Foundation, and that the parties seek to ensure the same.
NOW, THEREFORE intending to be legally bound, the parties
hereto agree as follows:
FIRST: The Donors, on behalf of themselves and any
affiliates (as defined in Rule 144), and all other successors-in-interest,
agree that disposition of any shares of Stock shall be limited for so long as
the Foundation holds any of the Stock. Specifically it is agreed that the
Donors and such entities or successors shall not sell, or otherwise transfer
at any time any shares of Stock which when aggregated with the largest number
of shares of Stock owned by the Foundation in the three months preceding the
date of the sale or transfer, exceed the greater of (i) one percent (1%) of
the issued and outstanding shares of Westport common stock, or (ii) the
average weekly trading volume of the shares during the preceding four (4)
calendar weeks, or (iii) any other applicable volume limitation under either
Rule 144 or the Act itself. In addition, the Donors agree to take any and all
actions reasonably necessary to confirm the right of the Foundation to sell
all or any portion of the Stock under Rule 144, and shall execute and deliver
all such other agreements, certificates, instruments and documents as may be
necessary to affirm and confirm and to carry out the intent and accomplish
the purposes of this Agreement, including, but not limited to, the
procurement at the Donors' sole expense, of any necessary or appropriate
opinion of counsel regarding transferability.
SECOND: In addition to the foregoing, the Donors represent
that the transfer of the Stock to the Foundation is exempt from registration
under the Act and, as of the date hereof, to the best of Donors' knowledge there
is no proposed recapitalization, tender or
2
exchange offer, stock repurchase program or similar plan that would have the
effect of substantially reducing the number of outstanding shares of Stock
within the first three (3) months following the contribution. Furthermore, as to
the current contribution and any future contribution of shares of Stock to the
Foundation, Donors agree not to contribute such shares in an amount that would
cause the Foundation to possess more shares than can be freely sold under the
limitations of Rule 144 or the Act.
THIRD: The Donors further represent that, as of the date
hereof, Donors have not contributed shares of Westport common stock to private
foundations (including the Foundation) that exceed, in the aggregate, ten
percent (10%) (in value) of all of the outstanding common stock of Westport. The
Donors further agree that they shall not make future contributions to private
foundations (including the Foundation) that will result, in the aggregate, in
contributions in excess of such ten percent (10%) limitation.
3
This Agreement is executed as of the date first written above.
DONORS:
ATTEST: ERI INVESTMENTS, INC.
/s/ Xxxxx Xxxxxxxxx By /s/ Xxxxxxx X. Xxxxxxx
------------------------------------- --------------------------------
Asst. Secretary Vice President
ATTEST: EQUITABLE PRODUCTION COMPANY
/s/ Xxxx X. Xxxxx By /s/ Xxxxxx X. Xxxxx
------------------------------------- --------------------------------
Asst. Secretary Asst. Treasurer
ATTEST: NORESCO HOLDINGS, INC.
/s/ Xxxx X. Xxxxx By /s/ Xxxxxx X. Xxxxx
------------------------------------- ---------------------------------
Asst. Secretary Asst. Treasurer
FOUNDATION:
ATTEST: EQUITABLE RESOURCES FOUNDATION, INC.
/s/ Xxxxxx Xxxxx By /s/ Xxxxx X. Xxxxxxxx, III
------------------------------------- ---------------------------------
Secretary Treasurer
4
