TERMINATION, CONSENT AND WAIVER December 1, 2006
EXHIBIT 10.3
TERMINATION, CONSENT AND WAIVER
December 1, 2006
To the Purchasers party to
the Stock Purchase Agreement
relating to the purchase of shares
of Omega Protein Corporation:
the Stock Purchase Agreement
relating to the purchase of shares
of Omega Protein Corporation:
Dear Sirs:
Reference is hereby made to the Stock Purchase Agreement, dated of even date herewith (the
“Stock Purchase Agreement”), among Xxxxxx Corporation, a Nevada corporation (“Xxxxxx”), 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, Xxxxxx proposes to sell to the Purchasers
and the Purchasers, severally and not jointly, propose to purchase from Xxxxxx 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 Xxxxxx, 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 Xxxxxx have previously entered into a Stock Purchase Agreement, dated as of
September 8, 2006 (the “Company Purchase Agreement”), pursuant to which, among other things, Xxxxxx
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 Xxxxxx, the Company and Xxxxxx 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 Xxxxxx, 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 of any
Governmental Authority the violation of which would be of material consequence to the Company or
would have a material adverse effect on the transactions contemplated hereby, in each case to which
the Company is a party or by which the Company is bound or to which the Shares are subject, or
(iii) result in the creation or imposition of any Encumbrances on the Shares.
(d) No notice to, filing with, or authorization, registration, consent or approval of any
Governmental Authority or other Person is necessary for the execution, delivery or performance of
this Termination, Consent and Waiver or the other Transaction Documents to which it is or is
intended to become a party by the Company, except for (i) the filing with the SEC of such reports
under the Exchange Act as may be required in connection with the transactions contemplated by the
Transaction Documents and (ii) notice within 30 days of the Closing Date of any changes in
information with respect to the company’s officers, directors and stockholders, including 5% or
more stockholders to the Citizenship Approval Officer of the Maritime Administration of the United
States Department of Transportation pursuant to 46 CFR 356.5(9).
(e) The Shares are duly authorized, validly issued, fully paid and non-assessable and owned of
record and, to the Company’s knowledge, beneficially by Xxxxxx. The Shares contain no restrictive
or other legend, other than a customary Securities Act legend and a legend summarizing the Transfer
Restrictions, and, except for the Transfer Restrictions, are not subject to any Encumbrances
created by the Company’s Articles of Incorporation, by-laws or any agreement, understanding or
other arrangement to which the Company is a party or by which it is bound, other than those that
have been effectively waived pursuant to the terms of this Termination, Consent and Waiver. The
Company knows of no reason why the New Certificates should not be issued to the Purchasers in the
ordinary course.
(f) There is not applicable to the Company, or the Company has taken all actions to exempt the
sale and transfer of the Shares contemplated by the Purchase Agreement from the provisions of any
stockholder rights plan or other “poison pill” arrangement, any anti-takeover, business combination
or control share law or statute binding on the Company or to which the Company or any of its assets
and properties may be subject and any provision of the Company’s Articles of Incorporation or
by-laws that is or could reasonably be expected to become applicable to the Purchasers as a result
of the transactions contemplated hereby, including without limitation, the purchase of the Shares
and the ownership, disposition or voting of the Shares by the Purchasers or the exercise of any
right granted to the Purchasers pursuant to this Agreement or the other Transaction Documents.
(g) At the time of filing thereof, the SEC Filings complied as to form in all material
respects with the requirements of the Securities Exchange Act of 1934, as amended (the
“Exchange Act”), and did not contain any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements made therein, in the light of the
circumstances under which they were made, not misleading.
(h) The Company is eligible to use Form S-3 to register the Registrable Securities (as such
term is defined in the Registration Rights Agreement) for resale by the Purchasers as contemplated
by the Registration Rights Agreement.
(i) The financial statements included in each SEC Filing present fairly, in all material
respects, the consolidated financial position of the Company as of the dates shown and its
consolidated results of operations and cash flows for the periods shown, and such financial
statements have been prepared in conformity with United States generally accepted accounting
principles applied on a consistent basis (“GAAP”) (except as may be disclosed therein or in
the notes thereto, and, in the case of quarterly financial statements, as permitted by Form 10-Q
under the 1934 Act).
(j) The Shares are listed on the New York Stock Exchange and the Company is in compliance with
applicable New York Stock Exchange continued listing requirements. There are no proceedings
pending or, to the Company’s knowledge, threatened against the Company relating to the continued
listing of the Common Stock on the New York Stock Exchange and the Company has not received any
notice of, nor to the Company’s knowledge is there any basis for, the delisting of the Common Stock
from the New York Stock Exchange.
(k) Except for the Brokerage Fee payable to the Broker, no Person is or will be entitled to a
broker’s, finder’s, investment banker’s, financial adviser’s or similar fee from the Company in
connection with the Transaction Documents, the sale of the Shares or any of the other transactions
contemplated hereby and thereby.
(l) Neither the Company nor any Person acting on its behalf has conducted any general
solicitation or general advertising (as those terms are used in Regulation D) in connection with
the offer or sale of any of the Shares. For the avoidance of doubt, the Company is not making any
representation or warranty with respect to the actions of Xxxxxx or the Broker.
(m) Neither the Company nor any of its Affiliates, nor any Person acting on its or their
behalf has, directly or indirectly, made any offers or sales of any Company security or solicited
any offers to buy any security, under circumstances that would adversely affect reliance by the
Company and the Seller on any exemption from registration for the transactions contemplated hereby
or would require registration of the Shares under the 1933 Act. For the avoidance of doubt, the
Company is not making any representation or warranty with respect to the actions of Xxxxxx or the
Broker.
For the avoidance of doubt, except as otherwise expressly agreed to by the Company and Xxxxxx,
Xxxxxx has no obligation, liability or responsibility for any of the representations, warranties,
obligations, covenants or undertakings of the Company hereunder or in any of the other Transaction
Documents.
This Termination, Consent and Waiver shall be null and void and of no further force and effect
upon the termination of the Stock Purchase Agreement in accordance with its terms.
This Termination, Consent and Waiver may be executed in counterparts, each of which shall be
deemed and original and all of which shall together represent one and the same instrument. This
Termination, Consent and Waiver shall be governed by, and construed in accordance with, the laws of
the State of New York, without reference to the choice of law provisions thereof.
| Very truly yours, | ||||||
| OMEGA PROTEIN CORPORATION | ||||||
| By: | /s/ Xxxx X. Held | |||||
| Name: Xxxx X. Held | ||||||
| Title: Executive Vice President and General Counsel | ||||||
| XXXXXX CORPORATION | ||||||
| By: | /s/ Xxxxxxx XxXxxxx | |||||
| Name: Xxxxxxx XxXxxxx | ||||||
| Title: Chief Financial Officer | ||||||
