TERMINATION, CONSENT AND
WAIVER
To the
Purchasers party to
the Stock Purchase Agreement
relating to the purchase of shares
of Omega Protein Corporation:
Reference is
hereby made to the Stock Purchase Agreement, dated of even date
herewith (the “Stock Purchase Agreement”), among Zapata
Corporation, a Nevada corporation (“Zapata”), and the
purchasers party thereto (the “Purchasers”).
Capitalized terms used herein have the respective meanings ascribed
thereto in the Stock Purchase Agreement unless otherwise defined
herein. Pursuant to the terms of the Stock Purchase Agreement,
Zapata proposes to sell to the Purchasers and the Purchasers,
severally and not jointly, propose to purchase from Zapata
5,232,708 shares (the “Shares”) of the common stock,
par value $0.01 per share (the “Common Stock”) of Omega
Protein Corporation, a Nevada corporation (the
“Company”). To induce the Purchasers to acquire the
Shares from Zapata, the Company has agreed to provide the
Purchasers with certain registration rights as set forth in a
Registration Rights Agreement among the Company and the
Purchasers.
The Company and
Zapata have previously entered into a Stock Purchase Agreement,
dated as of September 8, 2006 (the “Company Purchase
Agreement”), pursuant to which, among other things, Zapata
granted to the Company a Call Option (as defined in the Company
Purchase Agreement) to purchase the Shares.
To induce the
Purchasers to acquire the Shares from Zapata, the Company and
Zapata hereby irrevocably terminate the Company Purchase Agreement,
to the extent and only to the extent, relating to the Call Option
and/or the Shares.
To further induce
the Purchasers to acquire the Shares from Zapata, the Company
hereby agrees to the following provisions:
1. The
Company hereby irrevocably consents to the purchase of the Shares
by the Purchasers in accordance with the terms of the Stock
Purchase Agreement and the other Transaction Documents.
2. The
Company hereby irrevocably waives any rights it has to acquire the
Shares or any portion thereof, whether pursuant to the terms of the
Company Purchase Agreement or otherwise.
3. The
Company shall take the actions required to be taken by it pursuant
to the terms of the Stock Purchase Agreement and shall deliver the
deliveries required to be delivered by it pursuant to the terms of
the Stock Purchase Agreement, including, without limitation, the
delivery of the Transfer Agent Instructions to the Transfer
Agent.
4. The
Company hereby represents and warrants to the Purchasers
that:
(a) The
Company is a corporation duly organized, validly existing and in
good standing under the laws of the State of Nevada.
(b) The
Company has the power and authority (corporate and other) to
execute and deliver this Termination, Consent and Waiver and the
other Transaction Documents to which it is or is intended to become
a party and to perform its obligations hereunder and thereunder,
all of which have been duly authorized by all
requisite
corporate action. Each of the Transaction Documents to which it is
or is intended to become a party has been duly authorized, executed
and delivered by the Company and constitutes or will, as of the
Closing, constitute, a valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors’ rights and
to general equity principles.
(c) Assuming
the accuracy of the Purchasers’ representations in
Section 4.11 of the Stock Purchase Agreement and in their
respective Citizen Affidavits, neither the execution and delivery
of this Termination, Consent and Waiver or the other Transaction
Documents to which it is or is intended to become a party nor the
performance by the Company of its obligations hereunder and
thereunder will (i) contravene any provision contained in the
Company’s Articles of Incorporation or by-laws,
(ii) violate or result in a breach (with or without the lapse
of time, the giving of notice or both) of or constitute a default
under (A) any material contract, agreement, commitment,
indenture, mortgage, lease, pledge, note, license, permit or other
material instrument or material obligation or (B) any
judgment, order, decree, law, rule or regulation or other
restriction
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