Exhibit 10.2


 


VOTING AGREEMENT, dated as of April 6, 2004 (the “Agreement”), among KERR-MCGEE CORPORATION,
a Delaware corporation (“Parent”),
and each of the stockholders listed on Schedule I to this Agreement (each,
a “Stockholder” and,
collectively, the “Stockholders”).


 


INTRODUCTION


 


Parent, Kerr-McGee (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, 61⁄2% 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 


 


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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
Hart-Scott-Rodino 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 


 


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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, 


 


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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.


 


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(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.


 


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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.


 


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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.


 


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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.


 


	
   

  	
  KERR-MCGEE CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Gregory F. Pilcher

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Gregory F. Pilcher

  
	
   

  	
   

  	
  Title:

  	
  Senior Vice President, General Counsel and

  Corporate Secretary

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  EQT INVESTMENTS, LLC

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Kenneth J. Kubacki

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Kenneth J. Kubacki

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  



 


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SCHEDULE I TO

VOTING AGREEMENT


 


	
  Name and Address of

  Stockholder

  	
   

  	
  Number of
  Shares of

  Company Common

  Stock

  	
   

  	
  Number of

  Options to

  Acquire

  Company

  Common

  Stock

  	
   

  	
  Number of
  Shares

  of Convertible

  Preferred Stock

  	
   

  
	
  EQT Investments, LLC

  	
   

  	
  11,527,971

  	
   

  	
  0

  	
   

  	
  0

  	
   

  



 


Notices:


 


EQT Investments, LLC

801 West Street, 2nd Floor

Wilmington, DE 19801-1545

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 15219-1886

Telephone: (412) 288-3131

Telecopy: (412) 288-3063


 


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