Termination Agreement

EX-4.6 3 d15001exv4w6.txt TERMINATION AGREEMENT EXHIBIT 4.6 TERMINATION AGREEMENT This Termination Agreement (this "Agreement"), dated as of April 6, 2004 (this "Agreement"), is entered into by and among Westport Resources Corporation, a Nevada corporation (the "Company"), Westport Energy LLC, a Delaware limited liability company ("WELLC"), EQT Investments, LLC, a Delaware limited liability company and successor-in-interest to ERI Investments, Inc. ("EQT"), Medicor Foundation, a Liechtenstein foundation formed pursuant to the Liechtenstein Persons and Companies Act ("Medicor"), and the persons and entities named on Exhibit A attached hereto (collectively, the "Belfer Group"). WELLC, EQT, Medicor and each member of the Belfer Group may be referred to herein individually as a "Stockholder Party" and collectively as the "Stockholder Parties". PRELIMINARY STATEMENTS The Company and the Stockholder Parties are parties to (i) that certain Termination and Voting Agreement (the "Old Voting Agreement") and (ii) that certain Registration Rights Agreement (the "Old Registration Rights Agreement"), each dated as of October 1, 2003 and attached as Exhibit B and Exhibit C hereto, respectively. Kerr-McGee Corporation, a Delaware corporation ("Parent"), Kerr-McGee (Nevada) LLC, a Nevada limited liability company and wholly-owned subsidiary of Parent ("Merger Sub"), and the Company propose to enter into an Agreement and Plan of Merger, dated as of the date hereof (as it may be amended or supplemented from time to time, the "Merger Agreement"), pursuant to which, upon the terms and subject to the conditions thereof, the Company will be merged with and into Merger Sub, and Merger Sub will be the surviving entity (the "Merger"). In connection with the Merger Agreement and the transactions contemplated thereby, Parent, certain of the Stockholder Parties and one or more other individuals are entering into one or more Voting Agreements, each dated as of the date hereof (as each may be amended or supplemented from time to time, the "New Voting Agreements"), pursuant to which, upon the terms and subject to the conditions thereof, each Stockholder Party and each such other individual agrees, among other things, to vote (or cause to be voted) their respective shares of the common stock of the Company in favor of the Merger and the adoption of the Merger Agreement. In connection with the Merger Agreement and the transactions contemplated thereby, Parent, EQT, WELLC and Medicor propose to enter into a Registration Rights Agreement, dated as of the date hereof (as it may be amended or supplemented from time to time, the "New Registration Rights Agreement"), pursuant to which, upon the terms and subject to the conditions thereof, Parent will grant certain registration rights to the other parties thereto with respect to such parties' respective shares of Parent common stock to be received in connection with the Merger. As a condition to its willingness to enter into the Merger Agreement and the New Registration Rights Agreement, Parent has required that the Company and each Stockholder Party agree, and such parties are willing to agree, to the matters set forth herein. NOW, THEREFORE, in consideration of the foregoing, and of the covenants and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows: STATEMENT OF AGREEMENT ARTICLE I TERMINATION OF AGREEMENTS Section 1.1 Termination of the Old Voting Agreement. Subject to Section 1.3 hereof, effective as of the Effective Time (as such term is defined in the Merger Agreement), the Old Voting Agreement shall terminate in its entirety and shall be of no further force or effect. Section 1.2 Termination of the Old Registration Rights Agreement. Subject to Section 1.3 hereof, effective as of the Effective Time (as such term is defined in the Merger Agreement), the Old Registration Rights Agreement shall terminate in its entirety and shall be of no further force or effect. Section 1.3. Effectiveness of this Agreement. In the event the Merger Agreement is terminated for any reason, this Agreement shall be null and void and of no further force or effect, and the Old Voting Agreement and the Old Registration Rights Agreement shall remain in full force and effect in accordance with their respective terms. ARTICLE II MISCELLANEOUS PROVISIONS Section 2.1 Notices. Any notice required to be given hereunder shall be sufficient if in writing, and sent by facsimile transmission and by courier service (with proof of service), hand delivery or certified or registered mail (return receipt requested and first-class postage prepaid), addressed as follows: If to the Belfer Group: Robert A. Belfer 767 Fifth Avenue, 46th Floor New York, New York 10153 Fax Number: (212) 644-2396 Phone Number: (212) 644-2200 With a copy to: Laurence D. Belfer 767 Fifth Avenue, 46th Floor New York, New York 10153 Fax Number: (212) 644-2396 Phone Number: (212) 644-0561 2 If to the Company: Donald D. Wolf Chairman and Chief Executive Officer 1670 Broadway, Suite 2800 Denver, CO. 80202 Fax Number: (303) 573-5609 Phone Number: (303) 573-5404 With a copy to: Akin Gump Strauss Hauer & Feld LLP 1700 Pacific Avenue, Suite 4100 Dallas, Texas ###-###-#### Attention: Michael E. Dillard, P.C. Fax Number: (214) 969-4343 Phone Number: (214) 969-2800 If to Medicor: Medicor Foundation Landstrasse 11 Postfach 130 9495 Triesen Liechtenstein Attention: Anton M. Lotzer Fax Number: (423) 233-3934 Phone Number: (423) 239-6050 With a copy to: Richard M. Petkun Greenberg Traurig, LLP 1200 17th Street, Suite 2400 Denver, CO 80202 Telephone: (303) 572-6500 Telecopy: (303) 572-6540 And to: Michael Russell Dr. Richard J. Haas Partners Dukes Court 32 Duke Street, St. James's London, SW1Y 6DF Fax Number: 020.7 ###-###-#### Phone Number: 020.7 ###-###-#### If to WELLC: Westport Energy LLC c/o Westport Investments Limited Lyford Manor Lyford Cay P.O. Box N-7776 Nassau, Bahamas Fax Number: (242) 362-5788 3 With a copy to: Richard M. Petkun Greenberg Traurig, LLP 1200 17th Street, Suite 2400 Denver, CO 80202 Telephone: (303) 572-6500 Telecopy: (303) 572-6540 And to: Michael Russell Dr. Richard J. Haas Partners Dukes Court 32 Duke Street, St. James's London, SW1Y 6DF Fax Number: 020.7 ###-###-#### Phone Number: 020.7 ###-###-#### If to EQT Investments, LLC: EQT Investments, LLC 801 West Street, 2nd Floor Wilmington, DE ###-###-#### Attention: Treasurer Telephone: (302) 656-5590 Telecopy: (302) 428-1410 With a copy to: Johanna G. O'Loughlin Vice President, General Counsel and Secretary Equitable Resources, Inc. One Oxford Centre, Suite 3300 Pittsburgh, PA 15219 Telephone: (412) 553-7760 Telecopy: (412) 553-5970 And to: Stephen W. Johnson, Esquire Reed Smith LLP 435 Sixth Avenue Pittsburgh, PA ###-###-#### Telephone: (412) 288-3131 Telecopy: (412) 288-3063 Section 2.2 Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Nevada, regardless of the laws that might otherwise govern under applicable principles of conflicts of laws thereof. 4 Section 2.3 Counterparts. This Agreement may be executed in any number of counterparts and by different parties in separate counterparts, and delivered by means of facsimile transmission or otherwise, each of which when so executed and delivered shall be deemed to be an original and all of which when taken together shall constitute but one and the same agreement. Section 2.4 Parties in Interest; Assignment. This Agreement and all of the provisions hereof shall be binding upon and inure to the benefit of, and be enforceable by, the parties hereto and their respective heirs, beneficiaries, executors, successors, representatives and permitted assigns. This Agreement shall not be assigned by operation of law or otherwise without the prior written consent of the other parties hereto; provided, that any Stockholder Party may, by giving notice to the Company, assign its rights and obligations hereunder in connection with the sale, transfer or assignment of all but not less than all of the Common Stock it holds to a person (including a corporation, limited liability company, limited partnership or other entity) which controls, is controlled by or is under common control with such Stockholder Party. [SIGNATURE PAGES FOLLOW] 5 IN WITNESS WHEREOF, the parties hereto have executed this Termination Agreement and caused the same to be duly delivered on their behalf to be effective as of the date first written above. WESTPORT RESOURCES CORPORATION By: /s/ Donald D. Wolf ------------------------------------------------- Name: Donald D. Wolf ----------------------------------------------- Title: Chief Executive Officer --------------------------------------------- WESTPORT ENERGY LLC By: WESTPORT INVESTMENTS LIMITED, its Managing Member By: /s/ Robert A. Haas -------------------------------------------- Name: Robert A. Haas ------------------------------------------ Title: Director ---------------------------------------- EQT INVESTMENTS, LLC By: /s/ Kenneth J. Kubacki ------------------------------------------------- Name: Kenneth J. Kubacki ----------------------------------------------- Title: Vice President --------------------------------------------- MEDICOR FOUNDATION By: /s/ Anton M. Lotzer ------------------------------------------------- Name: Anton M. Lotzer ----------------------------------------------- Title: CEO ---------------------------------------------- By: /s/ Albin A. Johann ------------------------------------------------- Name: Albin A. Johann ----------------------------------------------- Title: Secretary ---------------------------------------------- /s/ Robert A. Belfer ---------------------------------------------------- Robert A. Belfer, individually THE ROBERT A. AND RENEE E. BELFER FAMILY FOUNDATION By: /s/ Robert A. Belfer ------------------------------------------------- Name: Robert A. Belfer Title: Trustee and Donor BELFER CORP. By: /s/ Robert A. Belfer -------------------------------------------------- Name: Robert A. Belfer Title: President RENEE HOLDINGS PARTNERSHIP, L.P. By: /s/ Robert A. Belfer ------------------------------------------------- Name: Robert A. Belfer Title: General Partner LDB CORP. By: /s/ Laurence D. Belfer ------------------------------------------------- Name: Laurence D. Belfer Title: President ROBERT A. BELFER 1990 FAMILY TRUST By: /s/ Laurence D. Belfer ------------------------------------------------- Name: Laurence D. Belfer Title: Trustee VANTZ LIMITED PARTNERSHIP By: VANTZ LLC, its General Partner By: /s/ Laurence D. Belfer ---------------------------------------- Name: Laurence D. Belfer Title: Managing Member LDB TWO CORP. By: /s/ Laurence D. Belfer ------------------------------------------------- Name: Laurence D. Belfer Title: President BELFER TWO CORP. By: /s/ Robert A. Belfer ------------------------------------------------- Name: Robert A. Belfer Title: President LIZ PARTNERS, L.P. By: LIZ ASSOCIATES LLC, its General Partner By: /s/ Robert A. Belfer ---------------------------------------- Name: Robert A. Belfer Title: Managing Member EXHIBIT A THE BELFER GROUP Robert A. Belfer The Robert A. and Renee E. Belfer Family Foundation Belfer Corp. Renee Holdings Partnership, L.P. LDB Corp. Robert A. Belfer 1990 Family Trust Vantz Limited Partnership LDB Two Corp. Belfer Two Corp. Liz Partners, L.P. EXHIBIT B TERMINATION AND VOTING AGREEMENT [Attached] EXHIBIT C OLD REGISTRATION RIGHTS AGREEMENT [Attached]