EXHIBIT 99.4
EXECUTION COPY
VOTING AGREEMENT, dated as of April 6, 2004 (the
"Agreement"), among XXXX-XXXXX CORPORATION, a Delaware
corporation ("Parent"), and each of the stockholders listed
on Schedule I to this Agreement (each, a "Stockholder" and,
collectively, the "Stockholders").
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INTRODUCTION
Parent, Xxxx-XxXxx (Nevada) LLC, a Nevada limited liability company and
wholly owned subsidiary of Parent ("Merger Sub"), and Westport Resources
Corporation, a Nevada corporation (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").
As of the date hereof, each Stockholder is the record and beneficial owner
of, or in the case of a Stockholder that is a trust (the "Trust Stockholder"),
such Trust Stockholder is the record holder of, and its beneficiaries are the
beneficial owners of, the number of shares (the "Shares") of common stock, par
value $.01 per share, of the Company (the "Company Common Stock") set forth
opposite such Stockholder's name on Schedule I attached hereto (such Shares,
together with any other shares of capital stock of the Company acquired by such
Stockholder after the date hereof and during the term of this Agreement
(including through the exercise of any stock options, warrants, 6 1/2%
convertible preferred stock, par value $.01 per share, of the Company or any
other convertible or exchangeable securities or similar instruments), being
collectively referred to herein as such Stockholder's "Subject Shares").
As a condition to its willingness to enter into the Merger Agreement,
Parent has required that each Stockholder agree, and each Stockholder is willing
to agree, to the matters set forth herein.
In consideration of the foregoing and the agreements set forth below, the
parties hereto agree as follows:
Section 1. Defined Terms. Capitalized terms used but not defined herein
have the meanings set forth in the Merger Agreement.
Section 2. Voting of Shares.
(a) Voting. For so long as this Agreement is in effect, each Stockholder
hereby agrees to vote (or cause to be voted) all of such Stockholder's Subject
Shares, at every annual, special or other meeting of the stockholders of the
Company, and at any adjournment or adjournments thereof, or pursuant to any
consent in lieu of a meeting or otherwise:
(i) in favor of the Merger and the adoption of the Merger Agreement
and the approval of the other transactions contemplated thereby, and any
actions required in furtherance thereof;
(ii) against any action or agreement that such Stockholder would
reasonably expect to result in a breach in any material respect of any
covenant, representation or warranty or any other obligation of the Company
under the Merger Agreement; and
(iii) against (A) any extraordinary corporate transaction, such as a
merger, rights offering, reorganization, recapitalization or liquidation
involving the Company or any of its subsidiaries (other than the Merger),
(B) a sale or transfer of a material amount of assets or capital stock of
the Company or any of its subsidiaries or (C) any action that is intended,
or would reasonably be expected, to prevent or materially delay or
otherwise interfere with the Merger and the other transactions contemplated
by the Merger Agreement.
(b) Grant of Irrevocable Proxy. Such Stockholder hereby irrevocably grants
to, and appoints, Parent and any individual who shall hereafter be designated by
Parent, and each of them, such Stockholder's proxy and attorney-in-fact (with
full power of substitution), for and in the name, place and stead of such
Stockholder, to vote, or cause to be voted, such Stockholder's Subject Shares,
or grant a consent or approval in respect of such Stockholder's Subject Shares,
at every annual, special or other meeting of the stockholders of the Company,
and at any adjournment or adjournments thereof, or pursuant to any consent in
lieu of a meeting or otherwise, with respect to the matters and in the manner
specified in Section 2(a) hereof; provided that the foregoing proxy shall
terminate immediately upon termination of this Agreement in accordance with its
terms. Each Stockholder understands and acknowledges that Parent is entering
into the Merger Agreement in reliance upon the Stockholders' execution and
delivery of this Agreement. Each Stockholder hereby affirms that the irrevocable
proxy set forth in this Section 2(b) is given in connection with the execution
of the Merger Agreement, and that such irrevocable proxy is given to secure the
performance of the duties of such Stockholder under this Agreement. Subject to
this Section 2(b), this grant of proxy is coupled with an interest and may under
no circumstances be revoked. Each Stockholder hereby ratifies and confirms all
that such irrevocable proxy may lawfully do or cause to be done in accordance
herewith. Such irrevocable proxy is executed and intended to be irrevocable in
accordance with the provisions of Section 78.355(5) of the Nevada Revised
Statutes.
Section 3. Fiduciary Responsibilities. No Stockholder executing this
Agreement who is or becomes during the term hereof a director or officer of the
Company makes (or shall be deemed to have made) any agreement or understanding
herein in his or her capacity as such director or officer. Without limiting the
generality of the foregoing, each Stockholder signs solely in his, her or its
capacity as the record and/or beneficial owner, as applicable, of such
Stockholder's Subject Shares and nothing herein shall limit or affect any
actions taken by such Stockholder (or a designee of such Stockholder) in his or
her capacity as an officer or director of the Company in exercising his or her
or the Company's or the Company's Board of Directors' rights in connection with
the Merger Agreement or otherwise and such actions shall not be deemed to be a
breach of this Agreement.
Section 4. Representations and Warranties of Stockholder. Each Stockholder,
severally and not jointly, represents and warrants to Parent as follows:
(a) Binding Agreement. Such Stockholder has the capacity to execute and
deliver this Agreement and to consummate the transactions contemplated hereby.
Such Stockholder has duly and validly executed and delivered this Agreement and
this Agreement constitutes a legal, valid and binding obligation of such
Stockholder, enforceable against such Stockholder in accordance with its terms,
except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization or other similar laws affecting creditors' rights
generally and by general equitable principles (regardless of whether
enforceability is considered in a proceeding in equity or at law).
(b) No Conflict. Neither the execution and delivery of this Agreement by
such Stockholder, nor the performance by such Stockholder of its obligations
hereunder will, (i) require any consent, approval, authorization or permit of,
registration, declaration or filing (except for such filings as may be required
under the federal securities laws or the Xxxx-Xxxxx-Xxxxxx Antitrust Improvement
Act of 1976, as amended, and the rules and regulations thereunder (the "HSR
Act") or as would not reasonably be expected to prevent, materially delay or
otherwise materially impair such Stockholder's ability to perform its
obligations hereunder) with, or notification to, any governmental entity, (ii)
if such Stockholder is an entity, result in a violation of, or default under, or
conflict with any provision of its certificate of incorporation, bylaws,
partnership agreement, limited liability company agreement or similar
organizational documents, (iii) result in a violation or breach of, or
constitute (with or without due notice or lapse of time or both) a default (or
give rise to any right of termination, cancellation, or acceleration) under any
contract, trust, agreement, instrument, commitment, arrangement or understanding
applicable to such Stockholder or such Stockholder's Subject Shares, or result
in the creation of a security interest, lien, charge, encumbrance, equity or
claim with respect to any of such Stockholder's Subject Shares, except, in the
case of clause (iii), as would not reasonably be expected to prevent, materially
delay or otherwise materially impair such Stockholder's ability to perform its
obligations hereunder, (iv) require any consent, authorization or approval of
any Person other than a governmental entity, except, in the case of clause (iv),
as would not reasonably be expected to prevent, materially delay or otherwise
materially impair such Stockholder's ability to perform its obligations
hereunder or (v) violate or conflict with any order, writ, injunction, decree,
rule, regulation or law applicable to such Stockholder or such Stockholder's
Subject Shares. If such Stockholder is a married individual and such
Stockholder's Subject Shares constitute community property or otherwise need
spousal approval in order for this Agreement to be a legal, valid and binding
obligation of such Stockholder, this Agreement has been duly authorized,
executed and delivered by, and constitutes a legal, valid and binding obligation
of, such Stockholder's spouse, enforceable against such spouse in accordance
with its terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization or other similar laws affecting
creditors' rights generally and by general equitable principles (regardless of
whether enforceability is considered in a proceeding in equity or at law).
(c) Ownership of Shares. Such Stockholder is the record and beneficial
owner of, or in the case of the Trust Stockholder, such Trust Stockholder is the
record holder of, and its beneficiaries are the beneficial owners of, the Shares
set forth opposite such Stockholder's name on Schedule I attached hereto free
and clear of any security interests, liens, charges, encumbrances, equities,
claims, options or limitations of whatever nature and free of any other
limitation or restriction (including any restriction on the right to vote, sell
or otherwise dispose of such Shares), except as provided by that certain
Termination and Voting Agreement, dated as of October 1, 2003, by and among the
Company, Medicor Foundation, Westport Energy LLC, ERI Investments, Inc. and
certain stockholders named therein (the "Termination and Voting Agreement").
There are no outstanding options or other rights to acquire from such
Stockholder, or obligations of such Stockholder to sell or to dispose of, any
shares of Company Common Stock, and none of such Stockholder's Subject Shares
are subject to vesting. Except as provided in the Termination and Voting
Agreement and in Section 2 hereof, such Stockholder holds exclusive power to
vote the Shares set forth opposite such Stockholder's name on Schedule I
attached hereto. As of the date of this Agreement, the Shares set forth opposite
such Stockholder's name on such Schedule I attached hereto represent all of the
shares of capital stock of the Company owned (beneficially or of record) by such
Stockholder, except shares of Company Common Stock which may be acquired by such
Stockholder upon exercise of options, if any, or conversion of the Convertible
Preferred Stock, if any, held by such Stockholder as set forth in such Schedule.
(d) Broker Fees. No broker, investment banker, financial advisor or other
person is entitled to any broker's, finder's, financial advisor's or other
similar fee or commission based upon arrangements made by or on behalf of such
Stockholder in connection with its entering into this Agreement.
Section 5. Representations and Warranties of Parent. Parent represents and
warrants to the Stockholders as follows:
(a) Binding Agreement. Parent is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Delaware and has
full corporate power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby. The execution and delivery of
this Agreement by Parent and the consummation of the transactions contemplated
hereby have been duly and validly authorized by the Board of Directors of
Parent, and no other corporate proceedings on the part of Parent are necessary
to authorize the execution, delivery and performance of this Agreement by Parent
and the consummation of the transactions contemplated hereby (except as
described in Section 4.2 of the Merger Agreement). Parent has duly and validly
executed this Agreement and this Agreement constitutes a legal, valid and
binding obligation of Parent, enforceable against Parent in accordance with its
terms, except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization or other similar laws affecting creditors' rights
generally and by general equitable principles (regardless of whether
enforceability is considered in a proceeding in equity or at law).
(b) No Conflict. Neither the execution and delivery by Parent of this
Agreement, nor the performance by Parent of its obligations hereunder will, (i)
require any consent, approval, authorization or permit of, registration,
declaration or filing (except for such filings as may be required under the
federal securities laws or the HSR Act or as would not reasonably be expected to
prevent, materially delay or otherwise materially impair Parent's ability to
perform its obligations hereunder) with, or notification to, any governmental
entity, (ii) result in a violation of, or default under, or conflict with any
provision of its Certificate of Incorporation or Bylaws, (iii) result in a
violation or breach of, or constitute (with or without due notice or lapse of
time or both) a default (or give rise to any right of termination, cancellation,
or acceleration) under any contract, trust, agreement, instrument, commitment,
arrangement or understanding applicable to Parent, except, in the case of clause
(iii), as would not reasonably be expected to prevent, materially delay or
otherwise materially impair Parent's ability to perform its obligations
hereunder, (iv) require any consent, authorization or approval of any Person
other than a governmental entity, except, in the case of clause (iv), as would
not prevent, materially delay or otherwise materially impair such Parent's
ability to perform its obligations hereunder or (v) violate or conflict with any
order, writ, injunction, decree, rule, regulation or law applicable to Parent.
Section 6. Transfer and Other Restrictions. For so long as this Agreement
is in effect:
(a) Certain Prohibited Transfers. Each Stockholder agrees not to:
(i) sell, transfer, pledge, encumber, assign or otherwise dispose
(collectively, the "Transfer") of, or enter into any contract, option or
other arrangement or understanding with respect to the Transfer of, such
Stockholder's Subject Shares or any interest contained therein (other than,
if the transactions contemplated by the Merger Agreement are consummated,
by operation of law in the Merger), except that any such Stockholder may
Transfer any of the Subject Shares to any other holder of Company Common
Stock who is on the date hereof a party to this Agreement or other voting
agreement with Parent on terms substantially identical to the terms of this
Agreement, or to any other person or entity that, prior to or coincident
with such Transfer, executes a voting agreement with Parent on terms
substantially identical to the terms of this Agreement;
(ii) grant any proxies or powers of attorney or enter into a voting
agreement or other arrangement with respect to such Stockholder's Subject
Shares, other than this Agreement;
(iii) enter into, or deposit such Stockholder's Subject Shares into, a
voting trust or take any other action which would, or could reasonably be
expected to, result in a diminution of the voting power represented by any
of such Stockholder's Subject Shares; nor
(iv) commit or agree to take any of the foregoing actions;
provided, however, that the restrictions in this Section 6 shall not be deemed
violated by any Transfer of Subject Shares pursuant to a cashless exercise of
options to acquire Shares so long as the Shares issuable upon exercise thereof
become such Stockholder's Subject Shares hereunder.
(b) Efforts. For so long as this Agreement is in effect, each Stockholder
agrees not to take any action which would make any representation or warranty of
such Stockholder herein untrue or incorrect in any material respect or knowingly
take any action that would have the effect of preventing or disabling it from
performing its obligations under this Agreement. Subject to Section 3 hereof,
for so long as this Agreement is in effect, each Stockholder shall use such
Stockholder's reasonable efforts to take, or cause to be taken, all actions
(including executing and delivering such additional documents) and do, or cause
to be done, and to assist and cooperate with the other parties hereto in doing,
all things, in each case, as may reasonably be deemed by Parent to be necessary
or desirable to carry out the provisions of this Agreement.
(c) Additional Shares. In the event (i) of any stock dividend, stock split,
recapitalization, reclassification, combination or exchange of shares of capital
stock of the Company on, of or affecting any Stockholder's Subject Shares or
(ii) any Stockholder becomes the beneficial owner of any additional shares of
Company Common Stock or other securities entitling the holder thereof to vote or
give consent with respect to the matters set forth in Section 2(a) hereof, then
the terms of this Agreement shall apply to the shares of capital stock or other
securities of the Company held by such Stockholder immediately following the
effectiveness of the events described in clause (i) or such Stockholder becoming
the beneficial owner thereof, as described in clause (ii), as though they were
such Stockholder's Subject Shares hereunder. Each Stockholder hereby agrees,
while this Agreement is in effect, to notify Parent of the number of any new
shares of Company Common Stock acquired by such Stockholder, if any, after the
date hereof.
Section 7. [RESERVED].
Section 8. No Solicitation. For so long as this Agreement is in effect, no
Stockholder shall, nor shall such Stockholder permit any investment banker,
attorney or other advisor or representative of the Stockholder to, directly or
indirectly through another Person, solicit, initiate or encourage, or take any
other action to facilitate, any inquiries or the making of any proposal that
constitutes, or may reasonably be expected to lead to, any Takeover Proposal;
provided that any action which is permitted by the Merger Agreement to be taken
by a stockholder in his or her capacity as a director or officer or which is
permitted by Section 3 hereof shall not be prohibited by the foregoing.
Section 9. Affiliate Agreement. If, at the time the Merger Agreement is
submitted for adoption to the stockholders of the Company, any Stockholder is an
"affiliate" of the Company for purposes of Rule 145 under the Securities Act and
applicable SEC rules and regulations, such Stockholder shall deliver to Parent
at least 30 days prior to the Closing Date a written agreement substantially in
the form attached as Exhibit B to the Merger Agreement.
Section 10. Specific Enforcement. 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 the terms hereof or were otherwise
breached and that the non-breaching party shall be entitled to specific
performance of the terms hereof in addition to any other remedy which may be
available at law or in equity. It is accordingly agreed that the non-breaching
party will be entitled to an injunction or injunctions to prevent breaches of
this Agreement and to enforce specifically the terms and provisions of this
Agreement in any state or federal court located in New York, New York, Borough
of Manhattan, the foregoing being in addition to any other remedy to which they
are entitled at law or in equity. In addition, each of the parties hereto (i)
consents to submit itself to the personal jurisdiction of any state or federal
court located in New York, New York, Borough of Manhattan, in the event any
dispute arises out of this Agreement or any of the transactions contemplated by
this Agreement, (ii) agrees that it will not attempt to deny or defeat such
personal jurisdiction by motion or other request for leave from any such court,
and (iii) agrees that it will not bring any action relating to this Agreement or
any of the transactions contemplated by this Agreement in any court other than a
state or federal court located in New York, New York, Borough of Manhattan.
Section 11. Termination. This Agreement shall terminate and cease to have
any force or effect on the earliest of (i) the termination of the Merger
Agreement in accordance with its terms, (ii) the written agreement of the
parties hereto to terminate this Agreement, (iii) the consummation of the
Merger, (iv) the amendment of the Merger Agreement to decrease the Exchange
Ratio or otherwise alter the Merger Consideration in a manner adverse to the
Stockholders unless such amendment has been consented to by the Stockholders in
writing prior to or simultaneously with such amendment, and (v) if the Merger
has not been consummated by October 31, 2004, notice at any time thereafter from
any party hereto to the other parties of such party's election to terminate this
Agreement (provided, however, that the right to terminate this Agreement
pursuant to this clause (v) shall not be available to any party that is in
breach in any material respect of its obligations hereunder); provided, however,
that (1) Sections 10, 12, 13, 14, 15, 16, 17, 18, 19 and 20 shall survive any
termination of this Agreement and (2) termination of this Agreement shall not
relieve any party from liability for any breach of its obligations hereunder
committed prior to such termination.
Section 12. Notices. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if delivered
personally, mailed by certified mail (return receipt requested) or sent by
overnight carrier or by telecopier (upon confirmation of receipt) to the parties
at the following addresses or at such other as shall be specified by the parties
by like notice: (i) if to Parent or the Company, to the appropriate address set
forth in Section 9 of the Merger Agreement; and (ii) if to a Stockholder, to the
appropriate address set forth on Schedule I hereto.
Section 13. Certain Events. Each Stockholder agrees that this Agreement and
the obligations hereunder shall attach to such Stockholder's Subject Shares and
shall be binding upon any person or entity to which legal or beneficial
ownership of such Stockholder's Subject Shares shall pass, whether by operation
of law or otherwise, including such Stockholder's heirs, guardians,
administrators or successors.
Section 14. Entire Agreement. This Agreement (including the documents and
instruments referred to herein) constitutes the entire agreement and supersedes
all other prior agreements and understandings, both written and oral, among the
parties, or any of them, with respect to the subject matter hereof.
Section 15. Amendment. This Agreement may not be modified, amended, altered
or supplemented except upon the execution and delivery of a written agreement
executed by the parties hereto; provided that, with respect to the obligations
of any individual Stockholder under this Agreement, this Agreement may be
amended with the approval of such Stockholder and Parent notwithstanding the
failure to obtain the approval of other Stockholders.
Section 16. Successors and Assigns. This Agreement shall not be assigned by
operation of law or otherwise without the prior written consent of the other
parties hereto, except as expressly provided by Section 6(a). This Agreement
will be binding upon, inure to the benefit of and be enforceable by each party
and such party's heirs, beneficiaries, executors, successors, representatives
and permitted assigns.
Section 17. Counterparts. This Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, and
delivered by means of facsimile transmission or otherwise, each of which when so
executed and delivered shall be deemed to be an original and all of which when
taken together shall constitute one and the same agreement.
Section 18. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED IN ALL
RESPECTS, INCLUDING VALIDITY, INTERPRETATION AND EFFECT, BY THE LAWS OF THE
STATE OF NEW YORK (WITHOUT GIVING EFFECT TO THE PROVISIONS THEREOF RELATING TO
CONFLICTS OF LAW), OTHER THAN TO THE EXTENT NEVADA LAW GOVERNS THE MERGER
ITSELF.
Section 19. Severability. If any provision of this Agreement shall be held
to be illegal, invalid or unenforceable under any applicable law, then such
contravention or invalidity shall not invalidate the entire Agreement. Such
provision shall be deemed to be modified to the extent necessary to render it
legal, valid and enforceable, and if no such modification shall render it legal,
valid and enforceable, then this Agreement shall be construed as if not
containing the provision held to be invalid, and the rights and obligations of
the parties shall be construed and enforced accordingly.
Section 20. Headings. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be signed, individually or by its respective officer thereunto duly authorized,
as of the date first written above.
XXXX-XXXXX CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President, General Counsel and
Corporate Secretary
MEDICOR FOUNDATION
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Chief Executive Officer
By: /s/ Xxxxx X. Johann
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Name: Xxxxx X. Xxxxxx
Title: Secretary
SCHEDULE I TO VOTING AGREEMENT
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Number of Number of Number of
Shares of Options to Shares of
Name and Address of Company Acquire Company Convertible
Stockholder Common Stock Common Stock Preferred Stock
------------------- ------------ --------------- ---------------
Medicor Foundation 9,700,000 -0- -0-
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If to Medicor:
Medicor Foundation
Xxxxxxxxxxx 00
Postfach 130
9495 Triesen
Liechtenstein
Attention: Xxxxx X. Xxxxxx
Fax Number: (000) 000-0000
Phone Number: (000) 000-0000
With a copy to:
Xxxxxxx X. Xxxxxx
Xxxxxxxxx Traurig, LLP
0000 00xx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
And to:
Xxxxxxx Xxxxxxx
Xx. Xxxxxxx X. Xxxx Partners
Xxxxx Court
00 Xxxx Xxxxxx, Xx. Xxxxx'x
Xxxxxx, XX0X 0XX
Fax Number: 000.0.000.0000
Phone Number: 000.0.000.0000
