EXECUTION
COPY


 


STOCK
PURCHASE AGREEMENT


 


by
and among


 


McCORMICK
& COMPANY, INCORPORATED

as the Purchaser,


 


ZATARAIN’S
BRANDS, INC.


 


and


 


THE
STOCKHOLDERS SET FORTH ON THE

STOCKHOLDER SIGNATURE PAGES ATTACHED HERETO.


 


May
7, 2003


 

















 


TABLE
OF CONTENTS


 


	
  SECTION 1. THE CLOSING:  PURCHASE AND SALE OF STOCK

  
	
  1.1

  	
  Purchase and
  Sale

  	
   

  
	
  1.2

  	
  Purchase Price

  	
   

  
	
  1.3

  	
  The Closing

  	
   

  
	
  1.4

  	
  Payment of the Purchase
  Price

  	
   

  
	
  1.5

  	
  Purchase Price Adjustment

  	
   

  
	
  1.6

  	
  Sellers’
  Representative

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 2.
  REPRESENTATIONS AND WARRANTIES OF THE PURCHASER

  
	
  2.1

  	
  Organization,
  Corporate Power and Authorization

  	
   

  
	
  2.2

  	
  Binding Effect and
  Noncontravention

  	
   

  
	
  2.3

  	
  Broker Fees

  	
   

  
	
  2.4

  	
  Financial
  Ability

  	
   

  
	
  2.5

  	
  No Litigation

  	
   

  
	
  2.6

  	
  Investment

  	
   

  
	
  2.7

  	
  Accuracy on Closing
  Date

  	
   

  
	
  2.8

  	
  Acknowledgement
  by the Purchaser

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION
  3. REPRESENTATIONS AND WARRANTIES OF THE SELLERS

  
	
  3.1

  	
  Organization,
  Corporate Power and Authorization

  	
   

  
	
  3.2

  	
  Binding Effect and
  Noncontravention

  	
   

  
	
  3.3

  	
  Capital Stock

  	
   

  
	
  3.4

  	
  Broker Fees

  	
   

  
	
  3.5

  	
  Accuracy
  on Closing Date

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 4. REPRESENTATIONS AND WARRANTIES OF
  THE COMPANY

  
	
  4.1

  	
  Organization,
  Qualification, and Corporate Power

  	
   

  
	
  4.2

  	
  Approvals and
  Consents

  	
   

  
	
  4.3

  	
  Capitalization;
  Subsidiaries

  	
   

  
	
  4.4

  	
  Financial
  Statements

  	
   

  
	
  4.5

  	
  Events Subsequent to the Latest Balance Sheet

  	
   

  
	
  4.6

  	
  Title to Assets

  	
   

  
	
  4.7

  	
  Compliance
  With Laws

  	
   

  
	
  4.8

  	
  Tax Matters

  	
   

  
	
  4.9

  	
  Environmental
  Matters

  	
   

  
	
  4.10

  	
  Intellectual
  Property

  	
   

  
	
  4.11

  	
  Real Estate

  	
   

  
	
  4.12

  	
  Certain
  Litigation

  	
   

  
	
  4.13

  	
  Employee
  Benefits

  	
   

  
	
  4.14

  	
  Affiliate
  Transactions

  	
   

  
	
  4.15

  	
  Insurance

  	
   

  
	
  4.16

  	
  Employees

  	
   

  



 


i

















 


	
  4.17

  	
  Contracts

  	
   

  
	
  4.18

  	
  Broker Fees

  	
   

  
	
  4.19

  	
  Books and
  Records

  	
   

  
	
  4.20

  	
  Accuracy on Closing Date

  	
   

  
	
  4.21

  	
  NO ADDITIONAL
  REPRESENTATIONS

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 5.
  COVENANTS AND OTHER AGREEMENTS

  
	
  5.1

  	
  General

  	
   

  
	
  5.2

  	
  Operation
  of Business

  	
   

  
	
  5.3

  	
  Access to
  Records

  	
   

  
	
  5.4

  	
  Notice
  of Developments

  	
   

  
	
  5.5

  	
  Public
  Announcements

  	
   

  
	
  5.6

  	
  Litigation Support

  	
   

  
	
  5.7

  	
  Transaction
  Expenses; Transfer Taxes

  	
   

  
	
  5.8

  	
  Further
  Assurances

  	
   

  
	
  5.9

  	
  Record
  Retention

  	
   

  
	
  5.10

  	
  Insurance

  	
   

  
	
  5.11

  	
  Employee
  Matters

  	
   

  
	
  5.12

  	
  HSR

  	
   

  
	
  5.13

  	
  No-Shop

  	
   

  
	
  5.14

  	
  Retention Bonus Amendments

  	
   

  
	
  5.15

  	
  Payment
  of Obligations

  	
   

  
	
  5.16

  	
  Tax Matters

  	
   

  
	
  5.17

  	
  Confidentiality

  	
   

  
	
  5.18

  	
  Termination of Certain
  Agreements

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 6.
  SURVIVAL AND INDEMNIFICATION

  
	
  6.1

  	
  Survival of
  Representations and Warranties

  	
   

  
	
  6.2

  	
  Indemnification
  Obligations of the Sellers

  	
   

  
	
  6.3

  	
  Indemnification
  Obligations of the Purchaser

  	
   

  
	
  6.4

  	
  Limitations on Indemnification

  	
   

  
	
  6.5

  	
  Indemnification Procedures

  	
   

  
	
  6.6

  	
  No Contribution

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 7. CONDITIONS
  TO THE CLOSING

  
	
  7.1

  	
  Conditions of
  the Purchaser’s Obligation

  	
   

  
	
  7.2

  	
  Conditions of the
  Sellers’ Obligation

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION
  8. DEFINITIONS

  
	
   

  
	
  SECTION 9. MISCELLANEOUS

  	
   

  
	
  9.1

  	
  Termination

  	
   

  
	
  9.2

  	
  Remedies

  	
   

  
	
  9.3

  	
  Confidentiality

  	
   

  
	
  9.4

  	
  Consent
  to Amendments

  	
   

  
	
  9.5

  	
  Successors
  and Assigns

  	
   

  
	
  9.6

  	
  Governing Law

  	
   

  



 


ii

















 


	
  9.7

  	
  Notices

  	
   

  
	
  9.8

  	
  Schedules
  and Exhibits

  	
   

  
	
  9.9

  	
  Counterparts

  	
   

  
	
  9.10

  	
  Time
  is of the Essence

  	
   

  
	
  9.11

  	
  No Third-Party
  Beneficiaries

  	
   

  
	
  9.12

  	
  Headings

  	
   

  
	
  9.13

  	
  Entire Agreement

  	
   

  



 


iii

















 


	
  LIST
  OF EXHIBITS AND SCHEDULES

  
	
   

  	
   

  
	
  Exhibit A

  	
  —

  	
  Indemnity Escrow
  Agreement

  
	
  Exhibit B

  	
  —

  	
  Adjustment
  Escrow Agreement

  
	
  Exhibit C

  	
  —

  	
  Financial
  Statements

  
	
  Exhibit D

  	
  —

  	
  Form of Opinion
  of Sellers’ counsel

  
	
  Exhibit E

  	
  —

  	
  Form of Releases

  
	
  Exhibit F

  	
  —

  	
  Form of Opinion
  of Purchaser’s counsel

  
	
  Exhibit G

  	
  —

  	
  Confidentiality
  Agreement

  
	
  Schedule A

  	
  —

  	
  Advertising and
  Promotional Services

  
	
  Schedule B

  	
  —

  	
  Payment
  Obligations

  
	
  Schedule C

  	
  —

  	
  Accrued
  Liabilities

  
	
  Schedule D

  	
  —

  	
  Addresses of
  Sellers

  
	
  Schedule E

  	
  —

  	
  Permitted
  Disclosures

  
	
  Schedule F

  	
  —

  	
  Press Release

  



 


	
  LIST OF DISCLOSURE SCHEDULES

  
	
   

  
	
  Conflicts
  Schedule

  
	
  Consents
  Schedule

  
	
  Capitalization
  Schedule

  
	
  Subsidiaries
  Schedule

  
	
  Financial
  Statements Schedule

  
	
  Developments
  Schedule

  
	
  Assets Schedule

  
	
  Compliance
  Schedule

  
	
  Taxes Schedule

  
	
  Environmental
  Matters Schedule

  
	
  Intellectual
  Property Schedule

  
	
  Real Estate
  Schedule

  
	
  Litigation
  Schedule

  
	
  Employee
  Benefits Schedule

  
	
  Affiliate
  Transactions Schedule

  
	
  Insurance
  Schedule

  
	
  Employees
  Schedule

  
	
  Contracts
  Schedule

  



 


iv

















 


STOCK PURCHASE AGREEMENT


 


This STOCK PURCHASE AGREEMENT is made as of May 7,
2003, by and among McCormick & Company, Incorporated, a Maryland
corporation (the “Purchaser”), Zatarain’s Brands, Inc., a Delaware corporation
(the “Company”), and the stockholders and warrant holders listed on the
stockholder signature pages attached hereto (each a “Seller” and
collectively, the “Sellers”). 
The Purchaser, the Sellers and the Company are sometimes referred to
collectively herein as the “Parties.” 
Certain capitalized terms which are used herein are defined in Section 8
below.


 


WHEREAS, as of the date hereof, the Sellers
collectively own 100% of the Outstanding Capital Stock of the Company (the “Zatarain
Stock”);


 


WHEREAS, the parties desire to enter into this
Agreement pursuant to which the Sellers agree to sell to the Purchaser and the
Purchaser agrees to purchase from the Sellers all of the Zatarain Stock;


 


NOW, THEREFORE, in consideration of the premises and the mutual
promises made herein, and in consideration of the representations, warranties,
and covenants herein contained, the Parties hereby agree as follows:


 


SECTION 1.   THE
CLOSING:  PURCHASE AND SALE OF STOCK.


 


1.1          Purchase
and Sale.  At the Closing, subject to the terms and
conditions set forth in Sections 7.1 and 7.2 below, as applicable, the
Purchaser shall purchase from the Sellers and the Sellers shall sell, convey,
assign, transfer, and deliver to the Purchaser, all of the Zatarain Stock.


 


1.2          Purchase Price. 
The cash purchase price (the “Purchase Price”) for the Zatarain
Stock shall consist of $180,000,000, to be paid by the Purchaser as described
in Section 1.4 below, as adjusted, if at all, pursuant to Section 1.5
below.


 


1.3          The Closing. 
The closing of the purchase and sale of the Zatarain Stock (the “Sale”),
and the transactions relating thereto (collectively, the “Closing”)
shall take place at the offices of Kirkland & Ellis, 153 East 53rd Street,
New York, New York (or at such other location as the Parties may agree),
commencing at 10:00 a.m. local time on June 2, 2003 or, subject to Section
9.1 below, on the second business day following the satisfaction or waiver
of all conditions to the obligations of the Parties to consummate the
transactions contemplated hereby (other than conditions with respect to actions
the respective Parties shall take at the Closing itself).  The date and time of the closing are
referred to as the “Closing Date.”


 


1.4          Payment
of the Purchase Price.  At the Closing, subject to the satisfaction
or waiver of each of the conditions specified in Sections 7.1 and 7.2
below:


 


(a)           The
Purchaser shall pay $3,600,000 (the “Indemnity Escrow Fund”) by wire
transfer of immediately available funds to Bank One, N.A., escrow agent (the “Escrow
Agent”), as security for any amounts owed to the Purchaser pursuant to the
indemnification


 

















 


provisions
set forth in Section 6.2.  The
Indemnity Escrow Fund shall be held by the Escrow Agent pursuant to the terms
and conditions of the Indemnity Escrow Agreement to be entered into among the
Purchaser, the Sellers’ Representative and the Escrow Agent substantially in
the form of Exhibit A attached hereto.


 


(b)           The Purchaser shall pay $250,000 (the
“Adjustment Escrow Fund”) by wire transfers of immediately available
funds to the Escrow Agent as security for any liability of the Sellers pursuant
to the purchase price adjustment in Section 1.5 below.  The Adjustment Escrow Fund shall be held by
the Escrow Agent pursuant to the terms and conditions of the Adjustment Escrow
Agreement to be entered into among the Purchaser, the Sellers’ Representative
and the Escrow Agent substantially in the form of Exhibit B
attached hereto.


 


(c)           The Purchaser shall pay $176,150,000
by wire transfers of immediately available funds to the accounts as directed by
the Sellers pursuant to written instructions delivered to the Purchaser prior
to the Closing (which shall include payments to the holders of Company Options,
payments of the Retention Bonuses and payments with respect to Company Debt);
and


 


(d)           The Sellers shall deliver to the
Purchaser all of the stock certificates representing the Zatarain Stock,
endorsed in blank or accompanied by duly executed assignment documents.


 


1.5          Purchase
Price Adjustment.  Following the Closing Date, the Purchase
Price shall be adjusted, if at all, as set forth below:


 


(a)           The Purchaser shall prepare and
deliver to the Sellers’ Representative (as defined below) within ninety (90)
Business Days after the Closing Date (i) a consolidated balance sheet of the
Company and its Subsidiaries as of the close of business on the Closing Date in
accordance with GAAP applied in a manner consistent with the preparation of the
audited consolidated balance sheet included within the Financial Statements for
the fiscal year ended July 31, 2002 that shall be audited by
PricewaterhouseCoopers LLP who shall be engaged by the Purchaser (the “Closing
Balance Sheet”) and (ii) a calculation of Net Working Capital derived from
the Closing Balance Sheet (the “Closing Net Working Capital Calculation”).  The Closing Net Working Capital Calculation
shall be prepared in accordance with the definition of Net Working Capital and
in accordance with GAAP applied in a manner consistent with the preparation of
the audited consolidated balance sheet included within the Financial Statements
for the fiscal year ended July 31, 2002. 
For the avoidance of doubt, the Closing Balance Sheet shall be prepared
in accordance with the Company’s historic cost basis of accounting and will not
be adjusted for the purchase price paid by the Purchaser in excess of the
historic carrying value of the consolidated assets and liabilities of the
Company.


 


(b)           During the 30-day period following
the Sellers’ Representative’s receipt of the Closing Balance Sheet and the
Closing Net Working Capital Calculation, the Purchaser shall provide to the Sellers’ Representative full access upon reasonable
notice to the books and records of the Company to permit the Sellers’
Representative to review the Closing Balance Sheet and the Closing Net Working
Capital Calculation. On or prior to the thirtieth (30th) day
following Seller’s Representative’s receipt of the Closing Balance Sheet and the Closing Net Working


 


2

















 


Capital Calculation, the Sellers’ Representative
may give the Purchaser a written notice stating in reasonable detail the
Sellers’ Representative’s objections (an “Objection Notice”) to the
Closing Net Working Capital Calculation. 
Any Objection Notice shall specify in reasonable detail the dollar
amount of any objection and the basis therefor.  Any determination set forth in the Closing Net Working Capital
Calculation which is not specifically objected to in the Objection Notice shall
be deemed acceptable and shall be final and binding upon the Parties upon
delivery of the Objection Notice.  If
the Sellers’ Representative does not give the Purchaser an Objection Notice
within such 30-day period, then the Closing Balance Sheet and the Closing Net Working Capital Calculation will
be conclusive and binding upon the Parties and the Closing Net Working Capital
Calculation will be used for purposes of Section 1.5(a) and 1.5(e)
herein.


 


(c)           Following the Purchaser’s receipt of
any Objection Notice, the Sellers’ Representative and the Purchaser shall
attempt to negotiate in good faith to resolve such dispute.  In the event that the Sellers’
Representative and the Purchaser fail to agree on any of the Sellers’
Representative’s proposed adjustments set forth in the Objection Notice within
thirty (30) Business Days after the Purchaser receives the Objection Notice,
the Sellers’ Representative and the Purchaser agree that Deloitte & Touche,
LLP or if Deloitte & Touche, LLP is not then independent, willing and able,
a mutually acceptable accounting firm of nationally recognized standing (the “Independent
Auditors”) shall, within the 30-day period immediately following such
30-day period, make the final determination of the Closing Net Working Capital
Calculation in accordance with the terms of this Agreement.  The Purchaser and the Sellers’
Representative each shall provide the Independent Auditors with their
respective determinations of the Closing Net Working Capital Calculation.  In making the determination of Closing Net Working
Capital, the Independent Auditors shall be instructed to determine only the
specific items in dispute as identified in the Objection Notice.  The Independent Auditors shall make an
independent determination of the Closing Net Working Capital in compliance with
the previous clause that shall be within the range proposed by the Purchaser
and the Sellers’ Representative in their respective proposed Closing Net
Working Capital Calculations.  The
Independent Auditors’ determination shall be final and binding on the Sellers’
Representative and the Purchaser.  The
fees, costs and expenses of the Independent Auditors shall be paid fifty
percent (50%) by the Purchaser and fifty percent (50%) by the Sellers’
Representative.


 


(d)           The term “Closing Balance Sheet”
shall mean the Closing Balance Sheet delivered pursuant to Section 1.5(a)
as adjusted, if at all, pursuant to Sections 1.5(b) and (c).  The date on which the Closing Balance Sheet
is finally determined pursuant to this Section 1.5 shall hereinafter be referred
to as the “Settlement Date”.


 


(e)           (i)            If
the Target Net Working Capital exceeds the Closing Net Working Capital
Calculation by an amount greater than $50,000, then the Sellers shall pay to
the Purchaser an amount equal to the amount by which the Target Net Working
Capital exceeds the sum of (x) the Closing Net Working Capital Calculation plus
(y) $50,000 in accordance with Section 1.5(f) below, which amount shall be
satisfied first out of the Adjustment Escrow Fund.


 


(ii)           If
the Closing Net Working Capital Calculation exceeds the Target Net Working
Capital by an amount greater than $50,000, then the Purchaser shall pay to the
Sellers an amount equal to the amount by which the Closing Net Working Capital
Calculation exceeds the sum of (x) the Target Net Working Capital plus (y)
$50,000 in


 


3

















 


accordance with
Section 1.5(f) below, and the Purchaser shall instruct the Escrow Agent to
deliver the entire amount of the Adjustment Escrow Fund to the Sellers.


 


(f)            The Purchaser and the Sellers’
Representative agree to prepare, execute and deliver joint written instructions
to the Escrow Agent (pursuant to the terms of the Adjustment Escrow Agreement)
with respect to the distribution of the entire Adjustment Escrow Fund promptly
following the Settlement Date.  In the
event that a payment is to be made to the Purchaser pursuant to Section
1.5(e)(i) above and such payment is less than the amount of the Adjustment
Escrow Fund, the Purchaser shall instruct the Escrow Agent to deliver the
balance of the Adjustment Escrow Fund to the Sellers.


 


1.6          Sellers’
Representative.


 


(a)           Designation and Replacement of
Sellers’ Representative.  The
Sellers have agreed that it is desirable to designate a representative to act
on behalf of the Sellers for certain limited purposes, as specified in this
Section 1.6 (the “Sellers’ Representative”).  The Sellers hereby designate Citicorp Venture Capital, Ltd. (“CVC”)
as the initial Sellers’ Representative. 
CVC hereby accepts such designation. 
The Sellers’ Representative may resign at any time effective upon the
designation of a successor Sellers’ Representative.  In the event that a Sellers’ Representative resigns, a new
Sellers’ Representative shall be appointed by a vote of holders who held a
majority of the voting stock of the Company immediately prior to the Closing,
such appointment to become effective upon the written acceptance thereof by the
new Sellers’ Representative, and the Purchaser shall be given prompt written
notice of such new Sellers’ Representative.


 


(b)           Authority and Rights of Sellers’
Representative.  The Sellers’
Representative shall have such powers and authority as are necessary to carry
out the functions specified below.  The
Sellers’ Representative shall be responsible, on behalf of any or all of the
Sellers, for giving notices to, and receiving notices from, the Purchaser, and
any such notice received by the Purchaser from the Sellers’ Representative, or
delivered to the Sellers’ Representative by the Purchaser, shall be binding
upon each Seller.  Each Seller hereby
authorizes the Sellers’ Representative to execute on behalf of each Seller any
amendments to this Agreement on behalf of the Sellers and, following the
Closing, to administer and resolve any claims with respect to the disposition
of the Indemnity Escrow Fund and the Adjustment Escrow Fund.  Any notice, communication, direction or
document described herein which is received by the Purchaser and signed by the
Sellers’ Representative on behalf of the Sellers shall be deemed signed by the
Sellers.  For the avoidance of doubt,
nothing in this Section 1.6 shall be deemed to expand or alter the
several (and not joint and several) nature of the indemnification obligations
of the Sellers pursuant to Section 6.2 hereof.  Schedule D attached hereto shall set forth a list of the
Sellers and their addresses as of the Closing Date.


 


(c)           Limitations on Liability.  The Sellers’ Representative will have no
liability to the Purchaser, the Company or the Sellers with respect to actions
taken or omitted to be taken in its capacity as Sellers’ Representative, except
with respect to any liability resulting primarily from the Sellers’
Representative’s gross negligence or willful misconduct.  The Sellers’ Representative will at all times
be entitled to rely on any directions received from the Sellers.  The Sellers’ Representative shall be
entitled to engage such counsel, experts and other agents and


 


4

















 


consultants
as it shall deem necessary in connection with exercising its powers and
performing its function hereunder and (in the absence of bad faith on the part
of the Sellers’ Representative) shall be entitled to reimbursement from the
Sellers in its capacity as Sellers’ Representative pursuant to or in connection
with this Agreement, for all reasonable expenses, disbursements and advances
(including fees and disbursements of its counsel, experts and other agents and
consultants) incurred by the Sellers’ Representative in such capacity, and for
indemnification from the Sellers against any loss, liability or expenses
arising out of actions taken or omitted to be taken in its capacity as Sellers’
Representative (except for those arising out of the Sellers’ Representative’s
gross negligence or willful misconduct).


 


SECTION 2.   REPRESENTATIONS AND WARRANTIES OF THE PURCHASER.  As a material inducement to the Sellers to
enter into this Agreement and to sell the Zatarain Stock, the Purchaser hereby
represents and warrants that as of the date hereof:


 


2.1          Organization, Corporate Power and Authorization. 
The Purchaser is a corporation duly organized, validly existing and in
good standing under the laws of the state of its incorporation.  The Purchaser has the requisite corporate
power and authority and all material licenses, permits and authorizations
necessary to enter into, deliver and carry out its obligations pursuant to each
of the Transaction Documents to which it is a party.  The Purchaser’s execution, delivery and performance of each Transaction
Document to which it is a party has been duly authorized by the Purchaser.


 


2.2          Binding Effect and Noncontravention.


 


(a)           Each Transaction Document to which
the Purchaser is a party constitutes a valid and binding obligation of the
Purchaser which is enforceable against the Purchaser in accordance with its
terms, except as such enforceability may be limited by (i) applicable
insolvency, bankruptcy, reorganization, moratorium or other similar laws
affecting creditors’ rights generally, and (ii) applicable equitable
principles (whether considered in a proceeding at law or in equity).


 


(b)           The execution, delivery and
performance by the Purchaser of the Transaction Documents to which the
Purchaser is a party do not and shall not: 
(i) conflict with or result in a breach of the terms, conditions or
provisions of; (ii) constitute a default under or result in a violation
of; or (iii) require any authorization, consent, approval, exemption or
other action by or declaration or notice to any third Person or Government
Entity pursuant to (except for the applicable requirements of the HSR Act),
(x) the charter or bylaws of the Purchaser, (y) any agreement,
instrument, or other document, or any Legal Requirement to which the Purchaser
is a party or to which any of its assets is subject, or (z) to Purchaser’s
knowledge, any constitution, statute, regulation, rule, injunction, judgment,
order, legal requirement or other restriction of any Government Entity, to
which the Purchaser or any of its assets is subject.


 


2.3          Broker Fees. 
The Purchaser has no liability or obligation to pay any fees or
commissions to any broker, finder, or agent with respect to the transactions
contemplated by this Agreement for which the Sellers could become liable or
obligated.


 


5

















 


2.4          Financial
Ability.  The Purchaser has immediately available
funds sufficient to consummate the transactions contemplated by this Agreement.


 


2.5          No Litigation. 
There is no lawsuit, claim, action, proceeding or investigation pending
or, to the Purchaser’s knowledge, threatened against the Purchaser, its
properties or businesses, which could reasonably be expected to have a
Purchaser Material Adverse Effect or restrict the ability of the Purchaser to
consummate the transactions contemplated hereby and otherwise perform
hereunder.


 


2.6          Investment. 
The Purchaser is acquiring the Zatarain Stock for its own account, for
investment only, and not with a view to any resale or public distribution
thereof.  The  Purchaser shall not offer to sell or otherwise dispose of the
Zatarain Stock in violation of any Legal Requirement applicable to any such
offer, sale or other disposition.  The
Purchaser acknowledges that (i) the Zatarain Stock has not been registered
under the Securities Act, or any state securities laws, (ii) there is no public
market for the Zatarain Stock and there can be no assurance that a public
market shall develop, and (iii) it must bear the economic risk of its
investment in the Zatarain Stock for an indefinite period of time.  The Purchaser is an “Accredited Investor”
within the meaning of the Securities and Exchange Commission Rule 501 of
Regulation D of the Securities Act, as presently in effect.


 


2.7          Accuracy on Closing
Date.  Each
representation and warranty set forth in this Section 2 and all information
contained in any certificate delivered by or on behalf of the Purchaser
pursuant to this Agreement shall be true and correct as of the time of the
Closing as though then made, except (i) as affected by the transactions
expressly contemplated by this Agreement, and (ii) to the extent that such
representation and warranty relates solely to an earlier date.


 


2.8          Acknowledgement
by the Purchaser. 
In determining to proceed with the transaction contemplated by this
Agreement, but without limitation of any rights or remedies arising hereunder,
the Purchaser acknowledges that (i) the Purchaser has made a complete due
diligence review of the Company and its Subsidiaries and is satisfied with the
results thereof and (ii) except as expressly set forth herein, the Purchaser is
not relying on any covenants, representations or warranties of the Company or
the Sellers.


 


SECTION 3.   REPRESENTATIONS
AND WARRANTIES OF THE SELLERS.  As a material inducement to the Purchaser to
enter into this Agreement and to purchase the Zatarain Stock, each Seller
hereby represents and warrants severally, and not jointly, that as of the date
hereof:


 


3.1          Organization, Corporate Power and Authorization.  Such Seller, if such Seller is an entity, is
validly existing and in good standing under the laws of the state of its
incorporation and has the requisite power and authority necessary to, or, if
such Seller is an individual, has the capacity necessary to, enter into,
deliver and perform its obligations pursuant to each of the Transaction
Documents to which it is a party.  Such
Seller’s execution, delivery and performance of each Transaction Document to
which it is a party has been duly authorized by such Seller.


 


6

















 


3.2          Binding
Effect and Noncontravention.


 


(a)           Each Transaction Document to which
such Seller is a party constitutes a valid and binding obligation of such
Seller which is enforceable against such Seller in accordance with its terms,
except as such enforceability may be limited by (i) applicable insolvency,
bankruptcy, reorganization, moratorium or other similar laws affecting
creditors’ rights generally, and (ii) applicable equitable principles
(whether considered in a proceeding at law or in equity).


 


(b)           Except as set forth on the attached Conflicts
Schedule, the execution, delivery, and performance of the Transaction
Documents to which such Seller is a party do not and shall not:


 


(i)            conflict
with or result in a breach of the terms, conditions or provisions of,


 


(ii)           constitute
a default under or result in a violation of,


 


(iii)          result
in the acceleration of, create in any party the right to accelerate, terminate,
modify, or cancel any liability or obligation of such Seller under,


 


(iv)          or
require any authorization, consent, approval, exemption or other action by or
declaration or notice to any third Person or Government Entity pursuant to,


 


(x) the certificate of incorporation or bylaws or
similar organic and corporate governance documents of such Seller, if
applicable, (y) any material agreement to which the Seller is a party or to
which any of its assets is subject, or (z) to such Seller’s knowledge, any
constitution, statute, regulation, rule, injunction, judgment, order, decree,
ruling, charge, Legal Requirement or other restriction of any Government
Entity, to which such Seller is subject.


 


3.3          Capital Stock. 
Such Seller holds of record, owns beneficially and has good and
marketable title to all of such Seller’s Zatarain Stock, as reflected on the
Capitalization Schedule, free and clear of security interests, options,
warrants, purchase rights, contracts, commitments, equities, claims, and
demands.  Such Seller is not a party to
any voting trust, proxy, or other agreement or understanding with respect to
the voting of any Zatarain Stock which will survive the Closing Date.  The Sellers collectively own 100% of the
Outstanding Capital Stock of the Company.


 


3.4          Broker
Fees.  Except for
the fees payable to Citigroup, N.A. and its Affiliates, which are the sole
obligation of the Sellers, none of the Sellers has any liability or obligation
to pay any fees or commissions to any broker, finder, or agent with respect to
the transactions contemplated by this Agreement.


 


3.5          Accuracy
on Closing Date.  Each representation and warranty set forth
in this Section 3 and all information contained in any certificate
delivered by or on behalf of such Seller pursuant to this Agreement shall be
true and correct as of the time of the Closing as though then made (giving
effect to any amended and restated Schedule to this Agreement submitted to the
Purchaser prior to the Closing in accordance with Section 5.4), except
(a) as affected by the


 


7

















 


transactions
expressly contemplated by this Agreement and (b) to the extent that such
representation and warranty relates solely to an earlier date.


 


 


SECTION 4.   REPRESENTATIONS
AND WARRANTIES OF THE COMPANY. 
As a material inducement to the Purchaser to enter into this Agreement
and to purchase the Zatarain Stock hereunder, the Company hereby represents and
warrants that as of the date hereof:


 


4.1          Organization,
Qualification, and Corporate Power.  Each of the Company and its Subsidiaries is
a corporation or partnership, as applicable, validly existing and in good
standing under the laws of the jurisdiction of its incorporation or formation,
as applicable.  Each of the Company and
its Subsidiaries is duly authorized to conduct business and is in good standing
under the laws of each jurisdiction where such qualification is required,
except where the lack of such qualification could not reasonably be expected to
have a Material Adverse Effect.  Each of
the Company and its Subsidiaries has full corporate power and authority or
limited partnership power and authority, as applicable, to carry on the
businesses in which it is engaged and to own and use the properties owned and
used by it.


 


4.2          Approvals and Consents.  Except as set forth on the attached Consents
Schedule, the execution, delivery, and performance of the Transaction
Documents to which any of the Company or its Subsidiaries is a party do not and
shall not:


 


(a)           conflict with or result in a breach
of the terms, conditions, or provisions of,


 


(b)           constitute a default under,


 


(c)           give any third party the right to
modify, terminate or accelerate any liability or obligation of, or charge any
fee, penalty or similar payment to the Company or any Subsidiary under,


 


(d)           result in a violation of,


 


(e)           require any authorization, consent,
approval, exemption or other action by or declaration or notice to any third
party or Government Entity pursuant to (except for the applicable requirements
of the HSR Act),


 


(i)            the
certificate of incorporation or bylaws or similar organic and corporate
governance documents of any of the Company or its Subsidiaries,


 


(ii)           any
material agreement to which any of the Company or its Subsidiaries is a party
or to which any of its assets is subject, or


 


(iii)          to
the Company’s Knowledge, any constitution, statute, regulation, rule,
injunction, judgment, order, decree, ruling, charge, Legal Requirement or other
restriction of any Government Entity, to which any of the Company or its
Subsidiaries or any of their assets is subject.


 


8

















 


4.3          Capitalization;
Subsidiaries.


 


(a)           The entire authorized capital stock
of the Company consists of (i) 300,000 shares of Preferred Stock, of which
66,468.50 shares are issued and outstanding, (ii) 1,037,149 shares of
Class A Common, of which 176,449 shares are issued and outstanding,
(iii) 550,000 shares of Class B Common, of which 460,680 shares are
issued and outstanding, and (iv) 50,000 shares of Class C Common, of
which no shares are issued and outstanding. 
All of the issued and outstanding shares of the Company have been duly
authorized, are validly issued, fully paid, and nonassessable, and are held of
record and beneficially by the Sellers as set forth, and in the amount set
forth, on the Capitalization Schedule attached hereto.  Except for the Options set forth on the Capitalization
Schedule (each a “Company Option”) and the warrants set forth on the
Capitalization Schedule (each a “Company Warrant”), there are no
outstanding or authorized options, warrants, purchase rights, subscription
rights, conversion rights, exchange rights, or other contracts or commitments
that could require any of the Company to issue, sell, or otherwise cause to
become outstanding any of its capital stock. 
Immediately following the Closing, there shall be no outstanding Company
Options.  There are no outstanding or
authorized stock appreciation, phantom stock, profit participation or similar
rights with respect to the Company.


 


(b)           The Subsidiaries Schedule sets
forth for each Subsidiary of the Company (i) its name and jurisdiction of
incorporation or formation, as applicable, (ii) the number of shares of
authorized capital stock of each class of its capital stock, partnership
interests or membership interests, as applicable, (iii) the number of
issued and outstanding shares, partnership interests or membership interests,
as applicable, of each class of its capital stock, partnership interests or
membership interests, as applicable, the names of the holders thereof, and the
number of shares, partnership interests or membership interests, as applicable,
held by each such holder, and (iv) the number of shares, partnership
interests or membership interests, as applicable, of its capital stock,
partnership interests or membership interests, as applicable, held in
treasury.  All of the issued and
outstanding shares of capital stock, partnership interests or membership
interests, as applicable, of each Subsidiary of the Company have been duly
authorized and are validly issued, fully paid, and nonassessable.  Each of the Company and its Subsidiaries
holds of record, owns beneficially and has good and marketable title to all of
the outstanding shares, partnership interests or membership interests, as applicable,
of each Subsidiary of the Company.  As
of the Closing such shares, partnership interests or membership interests, as
applicable, shall be free and clear of any restrictions on transfer, security
interests, options, warrants, purchase rights, contracts, commitments,
equities, claims, and demands (other than restrictions under the Securities Act
and state securities laws).  There are
no outstanding or authorized options, warrants, purchase rights, subscription
rights, conversion rights, exchange rights, or other contracts or commitments
that could require any of the Subsidiaries of the Company to issue, sell or
otherwise cause to become outstanding any of such Subsidiary’s own capital
stock, partnership interests or membership interests, as applicable.  There are no outstanding or authorized stock
appreciation, phantom stock, profit participation or similar rights with
respect to any Subsidiary of the Company. 
There are no voting trusts, proxies, or other agreements or
understandings with respect to the voting of any capital stock, partnership
interests or membership interests, as applicable, of any of the Company and its
Subsidiaries which will survive the Closing Date.  None of the Company and its Subsidiaries controls directly or


 


9

















 


indirectly
or has any direct or indirect equity participation in any corporation,
partnership, trust, or other business association which is not a Subsidiary of
the Company.


 


4.4          Financial
Statements.


 


(a)           Attached hereto as Exhibit C
are the following financial statements for the Company (collectively, the “Financial
Statements”):


 


(i)            the
Company’s audited consolidated balance sheet and related statement of income
for the fiscal year ended July 31, 2002,


 


(ii)           the
Company’s audited consolidated balance sheets and related statements of income
for the fiscal years ended July 31, 2001 and July 31, 2000, and


 


(iii)          the
Company’s unaudited consolidated balance sheets and related statements of
income as prepared by management year-to-date March 31, 2003.


 


Except as set forth on the attached Financial
Statements Schedule, each Financial Statement (including the notes thereto)
has been prepared in accordance with GAAP applied on a consistent basis
throughout the periods covered thereby and fairly presents the financial condition
of the Company and its Subsidiaries, if applicable, as of such dates and the
results of the Company’s and its Subsidiaries’, if applicable, operations for
the periods specified; provided, however, that (x) the Financial Statements
described in clause (iii) are subject to normal year-end adjustments, and (y)
the Financial Statements described in clause (iii) lack footnotes and other
presentation items.  No Financial
Statements of any Person, other than the Subsidiaries, are required by GAAP to
be included on the consolidated financial statements of the Company.


 


(b)           Except as set forth on the attached Financial
Statements Schedule, none of the Company or any of its Subsidiaries has any
Liabilities, whether known or unknown, accrued or unaccrued, matured or
unmatured, liquidated or unliquidated, asserted or unasserted, conditional or
potential, which would be required to be set forth on a balance sheet prepared
in accordance with GAAP, except for Liabilities reflected or reserved against
in the Financial Statements or, since the date of the Latest Balance Sheet,
current Liabilities incurred in the ordinary course of business consistent with
past practice.


 


4.5          Events Subsequent
to the Latest Balance Sheet.  Except as set forth on the attached Developments Schedule,
since the date of the Latest Balance Sheet, there has been no change in the
financial condition or operating results of the Business which could reasonably
be expected to have a Material Adverse Effect.


 


4.6          Title to
Assets.  The Company has good and marketable title
to, or a valid leasehold interest in, the tangible assets reflected on the
Latest Balance Sheet or acquired since the date thereof, except (i) assets
disposed of in the ordinary course of business since the date of the Latest
Balance Sheet, and (ii) as set forth on the Assets Schedule attached
hereto.


 


4.7          Compliance
With Laws.  Except as set forth on the attached Compliance
Schedule (and other than tax matters addressed in Section 4.8 and
environmental matters addressed in Section 4.9), each of the Company and its
Subsidiaries has complied in all material


 


10

















 


respects
with all Legal Requirements applicable to the Company or any of its
Subsidiaries.  None of the Company and
its Subsidiaries has received written notice alleging any violations of Legal
Requirements within the last twelve (12) months, except as set forth on the
attached Compliance Schedule.


 


4.8          Tax Matters. 
Except as set forth on the attached Taxes Schedule:


 


(a)           Each of the Company and its
Subsidiaries has timely filed all Tax Returns that it was required to file, and
such Tax Returns were true, correct and complete in all material respects and
has timely paid all Taxes due for which it is liable whether or not shown thereon
as owing.  The Company and its
Subsidiaries have provided adequate accruals (without taking into account any
reserve for deferred taxes) in its Latest Balance Sheet for any Taxes that have
not been paid, but were owed or accrued as of the date of the Latest Balance
Sheet, whether or not shown as being due on any Tax Returns.  Since the date of the Latest Balance Sheet,
no event has occurred that would result in a Tax liability of the Company other
than a liability arising in the ordinary course of business.


 


(b)           None of the Company and its
Subsidiaries has waived any statute of limitations in respect of Taxes or
agreed to any extension of time with respect to an Tax assessment or
deficiency.


 


(c)           No taxing authority has asserted in
writing that any of the Company or its Subsidiaries are responsible for the
payment of any additional Taxes for any period.  No taxing authority is currently auditing the Tax Returns of any
of the Company or its Subsidiaries for any period.


 


(d)           All Taxes required to be withheld or
collected have been duly withheld and collected and have been duly remitted or
deposited in accordance with the law.


 


(e)           No payment which will or may be made
by the Company or any of its Subsidiaries will be characterized as an “excess
parachute payment” within the meaning of Section 280(G)(b)(1) of the Code.


 


4.9          Environmental
Matters.  Except as described on the attached Environmental
Matters Schedule:


 


(a)           Each of the Company and its
Subsidiaries is and has been since January 1, 1998 in compliance in all
material respects with all applicable Environmental Laws.


 


(b)           Each of the Company and its
Subsidiaries has in current effect and is in compliance in all material
respects with all permits, licenses and other authorizations that may be
required pursuant to Environmental Laws for the occupation of the facilities
and the operation of the Business.  A
copy of each such permit, license or authorization has been made available to
Purchaser prior to the date hereof and is listed in the attached Environmental
Matters Schedule.


 


(c)           None of the Company and its
Subsidiaries has received since January 1, 1998, or at any time if unresolved
as of the Closing Date, any written notice of any alleged


 


11

















 


violations
or potential liabilities, including any investigatory, remedial or corrective
obligations, arising under Environmental Laws.


 


(d)           None of the Company and its
Subsidiaries has assumed or undertaken any liability or corrective or remedial
obligation of any other Person relating to or arising under Environmental Laws.


 


(e)           All environmental audits and reports
(including reports by local, state and federal regulators), notices of
violations relating to environmental matters, citations related to
Environmental  Laws, and requests for
information pursuant to the federal Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended, or any analogous state
laws, in each case in the possession or control of the Company and its
Subsidiaries, have been made available to the Purchaser.  Except as set forth on the Environmental
Matters Schedule, the Company has no Knowledge of any other environmental
audits and reports, notices of violations relating to environmental matters,
citations related to Environmental Laws or requests for information pursuant to
the federal Comprehensive Environmental Response, Compensation, and Liability
Act of 1980, as amended, or any analogous state laws.


 


(f)            None of the facilities owned or
operated by the Company or its Subsidiaries and, to the Company’s Knowledge,
none of the facilities at which any of the Company’s or its Subsidiaries’
wastes have been disposed, is listed or proposed for listing on the National
Priorities List promulgated pursuant to the Comprehensive Environmental
Response, Compensation and Liability Act, the Comprehensive Environmental
Response, Compensation and Liability Act Information System, or any state or
local list of potentially contaminated properties.  The Company and its Subsidiaries are not “small quantity
generators” or “large quantity generators” of Hazardous Wastes under the
Resource Conservation and Recovery Act. 
The Environmental Matters Schedule sets forth the transporters of solid
wastes used by the Company and its Subsidiaries since January 1,
1998.  The Company and its Subsidiaries
do not have Knowledge of the disposal locations used by such transporters.


 


(g)           There has been no release of
Hazardous Substances on or affecting any property owned or operated by the
Company or its Subsidiaries, except in the ordinary course of business or as
would not result in a material liability to the Company or its Subsidiaries.


 


(h)           There are no storage tanks, whether
above ground or underground, located at any property owned or operated by the
Company or its Subsidiaries.  Except as
set forth on the Environmental Matters Schedule, all storage tanks previously
located at any property owned or operated by the Company or its Subsidiaries
were removed in accordance with Legal Requirements.


 


4.10        Intellectual
Property.


 


(a)           The
attached Intellectual Property Schedule describes:


 


(i)            all Intellectual Property owned or controlled by
the Company and its Subsidiaries for which a patent, trademark, trade name,
domain name or copyright


 


12

















 


registration
exists or has been applied for or any other trademark which is otherwise
material to the conduct of the Business as of the Closing Date; and


 


(ii)           all written licenses of Intellectual Property
which any of the Company and its Subsidiaries has been granted from any third
party.


 


(b)           The
Company and its Subsidiaries are the sole and exclusive owners of all
Intellectual Property that is material to the conduct of the Business as of the
Closing Date, including the Intellectual Property referenced in Section
4.10(a)(i), trade secrets, recipes, material unregistered copyrights,
advertising, website content, packaging and product manufacturing processes,
but excluding the Intellectual Property identified in Section 4.10(a)(ii), and
such rights are not subject to any prior agreement, lien or encumbrance other
than any implied, non-exclusive licenses arising in the ordinary course of
business in connection with the sale of goods. 
The Company and its Subsidiaries have the right to use all Intellectual
Property referenced in Section 4.10(a)(ii) in accordance with the written
licenses therefor.  Without limiting any
of the foregoing, to the Company’s Knowledge, the Company and its Subsidiaries
own or otherwise have the right to use, all Intellectual Property used by them
in the conduct of the Business as of the Closing Date.


 


(c)           Except
as set forth on the Intellectual Property Schedule, to the Company’s
Knowledge, there is and has been no material unauthorized use, infringement or
misappropriation of any of the Intellectual Property by any third party.  To the Company’s Knowledge, the use of the
Intellectual Property in connection with the conduct of the Business as of the
Closing Date has not and does not infringe the intellectual property or other
rights of any third party and no such claims or notices have been made or given
to the Company or its Subsidiaries.  The
Company has taken reasonable measures to police and protect the Intellectual
Property from infringing third-party use.


 


4.11        Real Estate.


 


(a)           The attached Real Estate Schedule
sets forth the address of each parcel of real property owned by each of the
Company and its Subsidiaries.  With
respect to each property:


 


(i)            The
Company or its Subsidiaries is the legal titleholder of the real property
listed on the attached Real Estate Schedule (the “Property”), and
Company has good, merchantable and marketable title to the Property, free and
clear of all liens, encumbrances, claims, covenants, conditions, restrictions,
easements, rights of way, options, judgments or other matters, except Permitted
Liens and as set forth on the Real Estate Schedule attached hereto.


 


(ii)           Company
has received no notice of any proceedings pending or threatened to change,
downzone or reclassify the existing zoning classification as to any portion of
the Property.


 


(iii)          There
are no existing defects, structural, mechanical or otherwise, in the
improvements included as part of the Property which could reasonably be
expected to have a Material Adverse Effect. 
Company has no Knowledge, and has received no


 


13

















 


notices from
governmental officials, insurance carriers or others to the effect that any of
the Property (or any use thereof) is in violation of any Legal Requirement.


 


(iv)          except
as set forth on the Real Estate Schedule, none of the Company and its
Subsidiaries has leased or otherwise granted to any person the right to use or
occupy such property, and


 


(v)           except
as set forth on the Real Estate Schedule, other than the right of the
Purchaser pursuant to this Agreement, there are no outstanding options, rights
of first offer or rights of first refusal to purchase such property or any
portion thereof.


 


(b)           The attached Real Estate Schedule
lists all real property that each of the Company and its Subsidiaries leases or
subleases from any other Person.  Except
as set forth on the attached Real Estate Schedule, to the Company’s
Knowledge, with respect to each lease and sublease listed on the Real Estate
Schedule, the lease or sublease is legal, valid, binding, enforceable, and
in full force and effect, except where the illegality, invalidity, nonbinding
nature, unenforceability, or ineffectiveness could not reasonably be expected
to have a Material Adverse Effect.  None
of Company or any of its Subsidiaries is in default under any lease or sublease
which default could result in a Material Adverse Effect, and, to Company’s
Knowledge, no landlord (or sublandlord, as applicable) is in default under any such
lease or sublease.


 


4.12        Certain
Litigation.  The attached Litigation Schedule sets
forth each instance in which any of the Company or its Subsidiaries (a) (i) is
subject to any outstanding injunction, judgment, order or decree, (ii) is a
party to any suit which has been filed, or (iii) is a party to any
proceeding or hearing in or before, or, to the Company’s Knowledge,
investigation of, any court of quasi-judicial or administrative agency of any
federal, state, local, or foreign jurisdiction, and (b) to the Company’s
Knowledge each instance in which any of the foregoing is threatened.


 


4.13        Employee
Benefits.  The Employee Benefits Schedule lists
each Employee Benefit Plan that any of the Company and its Subsidiaries
maintains or to which any of the Company and its Subsidiaries contributes or
has any material Liabilities.  Except as
set forth on the Employee Benefits Schedule:


 


(a)           Each such Employee Benefit Plan
complies in form and in operation in all material respects with all applicable
Legal Requirements, including but not limited to the requirements of ERISA and
the Code.


 


(b)           With respect to each such Employee
Benefit Plan, all required payments, premiums, contributions, distributions,
reimbursements or accruals for all periods ending prior to or as of the Closing
Date have been made or properly accrued in accordance with GAAP.


 


(c)           Each such Employee Benefit Plan which
is intended to be qualified under Sec. 401(a) of the Code has received a
determination letter from the Internal Revenue Service to the effect that it
meets the requirements of Sec. 401(a) of the Code.  The Company has no Liability under Title IV of ERISA with
respect to any Employee Benefit Plan.


 


(d)           The Company has delivered or made
available to the Purchaser correct and complete copies of the plan and trust
documents and summary plan descriptions, the most


 


14

















 


recent
determination letter received from the Internal Revenue Service, and the most
recent Form 5500 Annual Report, with respect to each such Employee Benefit
Plan.


 


4.14        Affiliate
Transactions.  Except as set forth on the attached Affiliate
Transactions Schedule, no officer, director, employee, shareholder or
Affiliate of any of the Company or its Subsidiaries or any individual related
by blood, marriage or adoption to any such individual or any entity in which
any such Person or individual owns any beneficial interest, is a party to any
agreement, contract, commitment or transaction with any of the Company or its
Subsidiaries or has any material interest in any material property used by any
of the Company.


 


4.15        Insurance. 
The attached Insurance Schedule contains a description of each
insurance policy maintained by the Company and its Subsidiaries with respect to
its properties, assets and business. 
Each such insurance policy is in full force and effect.


 


4.16        Employees. 
The Employees Schedule attached hereto contains a true and
complete list as of March 31, 2003 of (i) the employees employed by each
of the Company and its Subsidiaries having an annual base salary in calendar
year 2002 of $100,000 or more, (ii) the rate of all compensation paid by
each of the Company and its Subsidiaries to each such employee, including any
bonus, contingent or deferred compensation and perquisites in calendar year
2002, (iii) all retention bonus plans and awards (the “Retention Bonus
Plans”) and all amounts payable thereunder, and (iv) the directors of each
of the Company and its Subsidiaries.  To
the Company’s Knowledge, no employee of any of the Company or its Subsidiaries
and no group of employees of any of the Company or its Subsidiaries has any
plans to terminate employment with any of the Company or its Subsidiaries.


 


4.17        Contracts.


 


(a)           Except as expressly contemplated by
this Agreement or as set forth on the attached Contracts Schedule, none
of the Company and its Subsidiaries is a party to or bound by any written or
oral:


 


(i)            pension,
profit sharing, stock option, employee stock purchase or other plan or
arrangement providing for deferred or other compensation or benefits to its
current or former directors, officers or employees or any other employee
benefit plan, arrangement or practice, whether formal or informal;


 


(ii)           collective
bargaining agreement or any other contract with any labor union, or severance
agreements, programs, policies or arrangements;


 


(iii)          management
agreement or contract for the employment of any officer, individual employee or
other Person on a full-time, part-time, consulting or other basis
(i) providing annual cash or other compensation in excess of $100,000,
(ii) providing for the payment of any cash or other compensation or
benefits upon the consummation of the transactions contemplated hereby or
(iii) otherwise restricting its ability to terminate the employment of any
employee at anytime for any lawful reason or for no reason without penalty or
liability;


 


(iv)          contract
or agreement involving any Governmental Entity;


 


15

















 


(v)           agreement
or indenture relating to borrowed money or other indebtedness or the mortgaging
or pledging on any material asset;


 


(vi)          lease
or agreement under which the Company is (i) lessee of or holds or operates
any personal property, owned by any other party, except for any lease of personal
property under which the aggregate annual rental payments do not exceed $50,000
or (ii) lessor of or permits any third party to hold or operate any
property, real or personal, owned or controlled by any of the Company and its
Subsidiaries;


 


(vii)         contract
relating to the marketing, sale, advertising or promotion of its products,
where such contract involves a fee or payment by any of the Company and its
Subsidiaries in excess of $50,000, other than trade promotion offers between
the Company or any of its Subsidiaries and their respective customers entered
into in the ordinary course of business;


 


(viii)        other
agreement which involves a consideration in excess of $50,000 annually and not
in the ordinary course of business.


 


(ix)           agreement
containing provisions that in any way restrict or purport to restrict the
business activity of the Company or any Subsidiary or otherwise limit the
freedom of the Company or any Subsidiary to engage in any business activity or
to compete with any Person anywhere in the world; and


 


(x)            license
or other agreement relating to Intellectual Property.


 


(b)           To the Company’s Knowledge, all of
the contracts, agreements and instruments set forth or required to be set forth
on the attached Contracts Schedule (the “Material Contracts”) are
valid, binding and enforceable in accordance with their respective terms,
except as designated completed on such schedule and except as such
enforceability may be limited by (x) applicable insolvency, bankruptcy,
reorganization, moratorium or other similar laws affecting creditors’ rights
generally and (y) applicable equitable principles (whether considered in a
proceeding at law or in equity).  Except
as set forth on the Consents Schedule, none of the Company and its
Subsidiaries has defaulted under or materially breached any Material Contract;
and none of the Company and its Subsidiaries has Knowledge of any breach or
cancellation or anticipated breach or cancellation by the other parties to any
Material Contract to which its is a party.


 


(c)           The Purchaser has been supplied with
a true and correct copy of each written Material Contract, together with all
amendments, waivers or other changes thereto.


 


4.18        Broker Fees. 
Except for the fees payable to Citigroup, N.A. and its Affiliates which
are the sole obligation of the Sellers, none of the Company and its
Subsidiaries has any liability or obligation to pay any fees or commissions to
any broker, finder, or agent with respect to the transactions contemplated by
this Agreement.


 


4.19        Books and
Records.  The books of account, minute books, stock
record books, and other records of the Company and its Subsidiaries (the “Books
and Records”), all of which have been made or will be available to
Purchaser, are complete and correct in all material


 


16

















 


respects
and have been maintained in accordance with sound business practices, including
the maintenance of an adequate system of internal controls.  At the Closing, all Books and Records will
be in the possession of the Company.


 


4.20        Accuracy
on Closing Date.  Each representation and
warranty set forth in this Section 4 and all information contained in any
certificate delivered by or on behalf of the Purchaser pursuant to this
Agreement shall be true and correct as of the time of the Closing as though
then made (giving effect to any amended and restated Schedule to this Agreement
submitted to the Purchaser prior to the Closing in accordance with
Section 5.4), except (a) as affected by the transactions expressly contemplated
by this Agreement and (b) to the extent that such representation and warranty
relates solely to an earlier date.


 


4.21        NO
ADDITIONAL REPRESENTATIONS. 
EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN SECTION 4 OF THIS AGREEMENT:
THE COMPANY EXPRESSLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND
OR NATURE, EXPRESS OR IMPLIED, AS TO THE CONDITION, VALUE OR QUALITY OF THE
BUSINESS OR THE ASSETS OF THE BUSINESS, AND THE COMPANY SPECIFICALLY DISCLAIMS
ANY REPRESENTATION OR WARRANTY OF MERCHANTABILITY, USAGE, SUITABILITY OR
FITNESS FOR ANY PARTICULAR PURPOSE WITH RESPECT TO THE ASSETS OF THE BUSINESS,
OR ANY PART THEREOF, OR AS TO THE WORKMANSHIP THEREOF, OR THE ABSENCE OF ANY
DEFECTS THEREIN, WHETHER LATENT OR PATENT, IT BEING UNDERSTOOD THAT SUCH SUBJECT
ASSETS ARE BEING ACQUIRED “AS IS, WHERE IS” ON THE CLOSING DATE, AND IN THEIR
PRESENT CONDITION, AND THE PURCHASER SHALL RELY ON ITS OWN EXAMINATION AND
INVESTIGATION THEREOF.


 


SECTION
5.   COVENANTS AND OTHER AGREEMENTS. 
The Parties agree as follows with respect to the period (i) between the
execution of this Agreement and the Closing, in the case of Sections 5.1
through 5.5(a), 5.7, 5.12, 5.13, 5.14, 5.15
(with respect to clauses (a) and (c) only), 5.17 and 5.18 and
(ii) following the Closing in the case of Section 5.5(b) and Sections
5.6 through 5.11, 5.15 (with respect to clause (b) only), 5.16
and Section 5.17 (with respect to the Sellers and Sellers’
Representative only) below:


 


5.1          General. 
Each of the Parties shall use its commercially reasonable efforts to
take all action and to do all things necessary, proper, or advisable in order
to consummate and make effective the transactions contemplated by this
Agreement (including satisfaction, but not waiver, of the closing conditions
set forth in Section 7 below).


 


5.2          Operation of Business.  From the date of this Agreement through the Closing, except as
the Purchaser may approve otherwise (with such approval not to be unreasonably
withheld), or as otherwise expressly contemplated or permitted by the
Transaction Documents, the Company shall (i) obtain the advertising and
promotional services set forth on Schedule A attached hereto for the
months of May and June 2003 and (ii) otherwise conduct the Business in the
ordinary course in accordance with past practice.  Nothing in this Section shall prevent the Company from using cash
to pay or discharge any Company Debt on or prior to the Closing Date.


 


17

















 


5.3          Access to
Records.  Prior to the Closing, subject to the terms
of the Confidentiality Agreement (as defined below), the Company shall permit
the Purchaser to have access at reasonable times, and in a manner so as not to
interfere with the normal business operations of the Company, to all books,
records (including tax records), contracts, and documents of or pertaining to
the Business.


 


5.4          Notice
of Developments.  The Sellers and the Company shall promptly
notify the Purchaser in writing of any Development causing a breach of any of
the representations and warranties in Sections 3 and 4 above.  Unless the Purchaser has the right to
terminate this Agreement pursuant to Section 9.1 below by reason of such
Development and exercises that right within fifteen (15) Business Days after
gaining such right, as provided in Section 9.1 below, the written notice
pursuant to this Section 5.4 shall be deemed to have amended the Schedules, to
have qualified the representations and warranties contained in Sections 3 and 4
above, and to have cured any misrepresentation or breach of warranty that
otherwise might have existed hereunder by reason of the Development.   From the date of this Agreement until the
Closing, the Purchaser promptly shall notify the Sellers if any representation
and warranty of the Purchaser set forth in this Agreement was untrue when made
or subsequently has become untrue.


 


5.5          Public
Announcements.


 


(a)           Prior to the Closing Date, none of
the Company and the Sellers, on the one hand, or the Purchaser, on the other
hand, shall make, or permit any agent or Affiliate to make, any public
statements, including, without limitation, any press releases, with respect to
this Agreement and the transactions contemplated hereby without the prior
written consent of the other (such consent not to be unreasonably withheld),
except as may be required by law or as set forth on Schedule 5(a)
attached hereto (“Permitted Disclosures”).  Other than with respect to Permitted Disclosures, the Purchaser,
on the one hand, and the Sellers and the Company, on the other hand, shall
provide the other with a prior copy of the content and substance of all public
announcements concerning the transactions contemplated hereby which public
announcement shall be subject to the approval of the other party, such approval
not to be unreasonably withheld or delayed. 
The Company and the Sellers hereby approve the Purchaser’s press release
in the form of Schedule F attached hereto.


 


(b)           Following the Closing Date, none of
the Company and the Sellers, on the one hand, or the Purchaser, on the other
hand, shall make, or permit any agent or Affiliate to make, any public
statements, including, without limitation, any press releases, with respect to
the conduct of the auction or Sale process, negotiations between the Parties,
or the allocation of the Purchase Price among the Sellers (in the case of the
Purchaser),  or make any disparaging
remarks concerning any of the Parties, in each case without the prior written
consent of the other (such consent not to be unreasonably withheld), except a
disclosure which any party is advised by its counsel is required by law.  In the event that any Party reasonably
believes after consultation with counsel that it is required by law to disclose
any such information described above, the disclosing Party will (i) provide the
other Party with notice as promptly as practicable in order that the other
Party may attempt to obtain a protective order or other assurance that
confidential treatment will be accorded such 
information and (ii) cooperate with the other Party (at the other
Party’s sole cost and expense) in attempting to obtain such order or assurance.


 


18

















 


5.6          Litigation
Support.  In the
event and for so long as any party actively is contesting or defending against
any third party action, suit, proceeding, hearing, investigation, charge,
complaint, claim, or demand in connection with (a) any transaction contemplated
under this Agreement, or (b) any fact, situation, circumstance, status,
condition, activity, practice, plan, occurrence, event, incident, action,
failure to act, or transaction on or prior to the Closing Date involving the
Sellers or the Company, the Purchaser agrees to (i) cooperate with the
contesting or defending party and its counsel, (ii) make available the
employees of the Business then employed by the Purchaser to provide testimony,
to be deposed, to act as witnesses and to assist counsel, and (iii) provide
access to its books and records as shall be necessary in connection with the
defense or contest, all at the sole cost and expense of the contesting or
defending party (unless the contesting or defending party is entitled to
indemnification therefor under Section 6 below).


 


5.7          Transaction Expenses; Transfer
Taxes.  Each of the Purchaser, on the one hand, and
the Sellers, on the other hand, shall bear its own costs and expenses
(including legal fees and expenses) incurred in connection with this Agreement
and the transactions contemplated hereby. 
All transfer taxes, stamp and recording taxes, sales, use and gross
receipts taxes and other miscellaneous closing fees or costs associated
therewith shall be paid by the party legally responsible for such expenses.


 


5.8          Further
Assurances.  From and after the Closing, the Purchaser
and each of the Sellers (through the Sellers’ Representative) shall execute and
deliver such further instruments of conveyance and transfer and take such other
action as reasonably may be necessary to further effectuate the transactions
contemplated by the Transaction Documents.


 


5.9          Record
Retention.  The parties agree that for a period of seven
(7) years after the Closing Date, without the prior written consent of the
Sellers, neither the Purchaser nor any of its Affiliates shall dispose of or
destroy any of the books and records purchased hereunder which may be relevant
to any legal, regulatory or tax audit, investigation, inquiry or requirement of
any of the Sellers without first offering such records to the Sellers’
Representative.


 


5.10        Insurance.  For a period of not less than
six (6)  years
after the Closing Date, the Purchaser shall (a) cause to be maintained in
effect the current policies of directors’ and officers’ liability insurance (“D&O
Insurance”) maintained by the Company, or substitute policies providing at
least the same coverage and amounts and containing terms and conditions which
are not less advantageous in any material respect, in each case with respect to
claims arising from facts or events which occurred at or prior to the Closing
Date and (b) not be permitted to amend, alter, modify, or terminate any
provisions in the Company’s or its Subsidiaries’ certificate of incorporation,
or by-laws or other equivalent governing documents in a manner which would
remove, limit or impair the provisions providing for the indemnification and
exculpation of directors and officers contained therein.


 


5.11        Employee
Matters.  Through the ninety-day anniversary of the
Closing Date, the Purchaser hereby agrees to provide employees of the Company
with coverage under Employee Welfare Benefit Plans which is substantially
similar in the aggregate (or greater) to the coverage provided under the
Employee Welfare Benefit Plans of the Company and its Subsidiaries which are
listed on the Employee Matters Schedule as in effect immediately prior
to the Closing Date.


 


19

















 


Additionally, for the period beginning on the Closing
Date and ending on the five-year anniversary of the Closing Date the Purchaser
hereby agrees to provide medical and dental benefits for Lawrence Kurzius and
his eligible dependants which are substantially similar in the aggregate (or
greater) to the medical and dental benefits provided to Lawrence Kurzius and
his eligible dependants immediately prior to the Closing Date.


 


5.12        HSR.  In connection with the transactions contemplated by this
Agreement, the Parties shall comply promptly with the notification and
reporting requirements of the HSR Act and use all commercially reasonable best
efforts to obtain early termination of the waiting period under the
HSR Act.  The Parties shall
substantially comply with any additional requests for information, including
requests for production of documents and production of witnesses for interviews
or depositions, by any antitrust authority. 
The Purchaser shall pay all filing fees associated with compliance under
the HSR Act.


 


5.13        No-Shop. 
Until such time, if any, as this Agreement is terminated pursuant to
Section 9.1 hereof, none of the Company, the Sellers or any of their
representatives or Affiliates shall, directly or indirectly, solicit, initiate,
encourage the submission of, consider, or negotiate with respect to, any
inquiries, proposals or offers from any Person relating to any transaction
involving the acquisition of the Business, the assets of the Company or any of
the capital stock of the Company or its Subsidiaries, or any similar
transaction, except in connection with the transactions contemplated by this
Agreement and other than for sales in the ordinary course of business.


 


5.14        Retention
Bonus Amendments.  The Company and the Sellers shall take all
necessary actions prior to the Closing to (i) amend in a manner satisfactory to
the Purchaser the retention bonuses listed on the Affiliate Transactions
Schedule (the “Retention Bonuses”) such that all Retention Bonuses shall
become due and payable immediately following the Closing and that, as a
condition to the receipt of such Retention Bonuses, the recipients thereof
shall be required to execute a release in favor of the Company and the
Purchaser in the form attached hereto as Exhibit E-1 and (ii)
provide for the withholding of all taxes or other amounts required by law to be
withheld from the Retention Bonuses (the “Withholding Amounts”).


 


5.15        Payment
of Obligations.  The Company shall (a) on or prior to
the Closing Date, pay and discharge all Company Debt all of which shall be
listed on the Payment Obligations Schedule attached as Schedule B
hereto, (b) immediately following the Closing, pay the Retention Bonuses to the
individuals and in the amounts listed on the Payment Obligations Schedule
attached as Schedule B hereto, and (c) on or prior to the Closing, pay
the consideration to each of the holders of Company Options all of whom are
listed on the Capitalization Schedule required to be paid to each such
holder (net of all taxes or other amounts required by law to be withheld) for
the purpose of terminating his or her respective Company Options.  The amounts paid under clauses (b) and (c)
(and clause (a) to the extent the source of such funds is the payment to be
made by the Purchaser under Section 1.4(c)) shall be funded by the
Purchaser at Closing through a stockholder contribution to the capital of the
payor Company.


 


20

















 


5.16        Tax Matters.


 


(a)           Tax Refunds and Tax Benefits.  Any Income Tax refunds or credits in respect
of an overpayment of Income Tax of the Company that are received by the
Purchaser or the Company, and any amounts credited against Income Tax to which
the Purchaser or the Company become entitled, in each case that relate to a
Pre-Closing Tax Period (including the Pre-Closing portion of any Straddle
Period) other than a refund or credit attributed to a tax attribute generated
in a post-Closing tax year, shall, subject to Section 5.16(e), be
for the account of the Sellers, and the Purchaser shall remit to the Sellers’
Representative (on behalf of the Sellers) any such refund or the amount of any
such credit, in each case, net of any tax cost, within fifteen (15) days after
receipt thereof or realization of such benefit to the Company from the receipt
of such refund.


 


(b)           Income Tax Returns.


 


(i)            (A)          The Sellers’ Representative shall have
the exclusive authority and obligation to prepare, execute on behalf of the Company
and file, or cause to be prepared and filed, all Income Tax Returns (including
amended Income Tax Returns and claims for refund other than amended returns to
obtain a refund resulting from the carryback of a tax attribute generated in a
post-Closing period) of the Company that are required to be filed with respect
to any Pre-Closing Tax Period.  Such Tax
Returns will be prepared in a manner consistent with past practice.  No accounting or period changes may be made
that are not required by law.  No later
than 45 days prior to their due date, Sellers’ Representative shall submit such
returns to Purchaser for its review. 
Subject to the second and third sentence of this Section 5.16(b)(i)(A),
all reasonable comments of Purchaser with respect to such Tax Returns shall be
incorporated prior to their timely filing if submitted to Sellers’
Representative no later than 15 days prior to the due date for the timely
filing of such Tax Returns unless the Independent Auditors (such costs and
expenses of the Independent Auditors related to this Section 5.16 to be borne
by the Sellers) determine that Sellers’ Representative’s refusal to accept the
Purchaser’s comment(s) is adequately supported by applicable Tax law.  The Sellers shall pay or cause to be paid
all Income Taxes due from the Company shown on any Income Tax Returns required
to be filed with respect to any Pre-Closing Tax Period to the extent such
Income Taxes have not already been paid and directly relate to such Pre-Closing
Tax Period.


 


(B)           The
Purchaser shall have the exclusive authority and obligation to prepare, execute
on behalf of the Company and file, or cause to be prepared and filed, all
Straddle Period Tax Returns of the Company that are required to be filed with
respect to any Straddle Period.  Such
Tax Returns will be prepared in a manner consistent with past practice.  No accounting or period changes may be made
that are not required by law.  No later
than 45 days prior to their due date, Purchaser shall submit such Straddle
Period Tax Return to Sellers’ Representative for its review.  Subject to the second and third sentence of
this Section 5.16(b)(i)(B), all reasonable comments of Sellers’ Representative
with respect to such Tax Return shall be incorporated prior to their timely
filing if submitted to Purchaser no later than 15 days prior to the due date
for the timely filing of such Tax Return.


 


21

















 


(ii)           The
Sellers’ Representative and the Purchaser agree to cause the closing of all
accounting periods, taxable periods and taxable years with respect to Income
Taxes of the Company as of the Closing Date to the extent required under
applicable law.


 


(iii)          In
the case of any Taxes (A) other than those based upon or related to income,
that are payable on a periodic basis for a period that begins before and ends
after the Closing Date, the portion of such Taxes that are payable for the
period ending on the Closing date shall be deemed to be the amount of such
Taxes for the entire period multiplied by a fraction the numerator of which is
the number of days in the period ending on the Closing Date and the denominator
of which is the number of days in the entire period, and (B) based upon or
related to income that are payable on a periodic basis for a period that begins
before and ends after the Closing Date, the portion of such Taxes that is
payable for the period ending on the Closing Date shall be deemed to be that
which would be payable if the taxable year ended on the Closing Date.


 


(c)           Post-Closing Access and
Cooperation.  The Purchaser shall,
and shall cause its Affiliates to, provide to the Sellers such cooperation and
information as the Sellers reasonably may request in filing any Income Tax
Return, amended Income Tax Return or claim for refund for Income Taxes,
determining a liability for Income Taxes or a right to a refund of Income Taxes
or in conducting any audit or other proceeding in respect of Income Taxes, in
each case, with respect to Income Taxes of the Company for the Pre-Closing Tax
Period.  Such cooperation and
information shall include making available (during normal business hours) such
knowledgeable employees of the Purchaser and the Company (and their respective
Affiliates), and providing access (during normal business hours) to the books
and records of the Company.


 


(d)           Controversies.


 


(i)            The
Purchaser shall promptly notify the Sellers’ Representative in writing upon
receipt by the Purchaser or any Affiliate of the Purchaser of any notice of any
inquiries, claims, assessments, audits or similar events with respect to any
Income Taxes of the Company for a Pre-Closing Tax Period (any such inquiry,
claim, assessment, audit or similar event, a “Tax Matter”); provided
that the failure to so notify the Sellers will not relieve the Sellers of their
obligations hereunder, including their obligation to indemnify for any Income
Taxes arising in connection with such Tax Matter, except to the extent that the
Sellers are harmed by the failure to so notify.


 


(ii)           The
provisions of Section 6.5(b) shall apply to any Tax Matter.


 


(e)           Tax Benefit of Certain Payments.  In the event that any amount which would
(before application of this subsection (e)) be payable to the Sellers’
Representative pursuant to Section 5.16(a) is greater than the amount
that would have been payable but for any deduction or other tax benefit
attributable to payment of the Retention Bonuses, the amount due under Section
5.16(a) shall be reduced by an amount equal to 100% of such excess.  The Parties agree that the payment of the
Retention Bonuses will be subject to the “next day rule” of Treas. Reg. Section
1.1502-76(b)(1)(ii)(B).


 


22

















 


5.17        Confidentiality.


 


(a)           Each Seller, the Sellers’
Representative and, on and prior to the Closing Date, the Company, agrees to
use its commercially reasonable efforts to maintain the confidentiality of all
proprietary and other non-public information regarding the Company and its
Subsidiaries, except as required to file Tax Returns and as required by law, or
as may be reasonably necessary to conduct the business of the Company (with
respect to the period prior to the Closing Date).  In the event of any breach of any provision of this Section
5.17(a), the Purchaser and, subsequent to the Closing Date, the Company, in
addition and supplementary to other rights and remedies existing in their
favor, may apply to any court of law or equity of competent jurisdiction to
seek specific performance and/or injunctive or other relief (without the
posting of bond or other security) in order to enforce or prevent any
violations of the provisions hereof.


 


(b)           In the event that any Party
reasonably believes after consultation with counsel that it is required by law
to disclose any confidential information described in Section 5.17(a),
the disclosing Party will (i) provide the Purchaser with notice as promptly as
practicable in order that the Purchaser may attempt to obtain a protective
order or other assurance that confidential treatment will be accorded such
confidential information and (ii) cooperate with the Purchaser (at the
Purchaser’s sole cost and expense) in attempting to obtain such order or
assurance.  The provisions of Section
5.17(a) shall not apply to any information, documents or materials which
are shown to be in the public domain or come into the public domain, other than
by reason of default by the applicable Party bound hereunder or its Affiliates.


 


(c)           Notwithstanding anything herein to
the contrary, you and each other party to the transaction (and each affiliate
and person acting on behalf of any such party) agree that each party (and each
employee, representative, and other agent of such party) may disclose to any
and all persons, without limitation of any kind, the tax treatment and tax
structure of the transaction and all materials of any kind (including opinions
or other tax analyses) that are provided to such party or such person relating
to such tax treatment and tax structure, except to the extent necessary to
comply with any applicable federal or state securities laws.  This authorization is not intended to permit
disclosure of any other information including (without limitation) (i) any
portion of any materials to the extent not related to the tax treatment or tax
structure of the transaction, (ii) the identities of participants or potential
participants in the transaction, (iii) the existence or status of any
negotiations, (iv) any pricing or financial information (except to the extent
such pricing or financial information is related to the tax treatment or tax
structure of the transaction), or (v) any other term or detail not relevant to
the tax treatment or the tax structure of the transaction.


 


5.18        Termination
of Certain Agreements.  Effective as of the closing of business on
the Closing Date, (i) the Company and Lawrence Kurzius hereby agree that
the Severance Agreement, dated August 5, 1993, shall be terminated and
shall have no further force and effect, and (ii) the Company and each of
the Sellers hereby agree that the Registration Agreement, dated August 5, 1993,
which is described in the Affiliate Transactions Schedule, shall be terminated
and shall have no further force and effect.


 


23

















 


SECTION
6.   SURVIVAL AND INDEMNIFICATION.


 


6.1          Survival of Representations and
Warranties.  All of the representations and warranties
contained in Sections 2, 3 and 4 above shall survive the Closing hereunder
until February 28, 2005; provided that the representation and warranty
set forth in Section 4.9 (Environmental Matters) shall survive for a period of
three (3) years following the Closing and the representations and warranties
set forth in Sections 2.1 (Organization, Corporate Power and
Authorization), 3.1 (Organization, Corporate Power and Authorization), 3.3
(Capital Stock), 4.1 (Organization, Qualification and Corporate Power), 4.3
(Capitalization; Subsidiaries), 4.8 (Tax Matters) and 4.10 (Intellectual
Property) shall survive the Closing hereunder for the applicable statute of
limitations.


 


6.2          Indemnification Obligations of the
Sellers.  Subject to the provisions of
Section 6.4 below, the Sellers shall severally, and not jointly, indemnify
and hold harmless the Purchaser and its Affiliates, stockholders, officers,
directors, employees and agents (collectively, the “Purchaser Indemnitees”)
from and after the Closing, in respect of any Loss which any Purchaser
Indemnitee suffers, sustains or becomes subject to as a result of or by virtue
of, without duplication:


 


(a)           the breach by the Sellers (or the
Company with respect to the period prior to the Closing Date) of any of the
covenants made by the Sellers (or the Company with respect to the period prior
to the Closing Date)  in any of the Transaction Documents, and


 


(b)           the breach of any of the
representations and warranties contained in Sections 3 and 4 of this Agreement
(provided however, that the Sellers are given an Indemnification Claim
Notice (as defined below) during the applicable survival period specified in
Section 6.1 above);


 


(c)           the failure of any Seller to act in
accordance with Section 1.6 (Appointment of Sellers’ Representative); and


 


(d)           any unpaid Income Taxes imposed on,
relating to or asserted against the Company for any Pre-Closing Tax Period.


 


6.3          Indemnification Obligations of the
Purchaser.  Subject to the provisions of Section 6.4
below, the Purchaser shall indemnify and hold harmless the Sellers and their
respective Affiliates, stockholders, officers, managers, directors, employees
and agents (collectively, the “Sellers Indemnitees”) from and after the
Closing, in respect of any Loss which any Sellers Indemnitee suffers, sustains
or becomes subject to as a result of or by virtue of, without duplication:


 


(a)           the breach by the Purchaser (or the
Company with respect to the period following to the Closing Date) of any of the
covenants made by it (or the Company with respect to the period following to
the Closing Date) in any of the Transaction Documents;


 


(b)           the breach of any of the
representations and warranties of the Purchaser contained in Section 2 of
this Agreement (provided, that the Purchaser is given an


 


24

















 


Indemnification Claim Notice during the applicable
survival period specified in Section 6.1 above); and


 


(c)           any claim arising in respect of the
operation of the Business subsequent to the Closing (other than any claim
arising from any indemnification obligations of the Sellers under Section 6.2).


 


6.4          Limitations
on Indemnification.


 


(a)           No party shall be entitled to assert
any claim for indemnification pursuant to Sections 6.2(b) (other than
with respect to a breach of Section 3.4 and Section 4.18), or 6.3(b)
unless and until the amount of the Losses sustained by such party with respect
to any individual matter exceeds $20,000. 
In addition, no party shall be obligated to indemnify another party with
respect to any Losses pursuant to Sections 6.2(b) (other than with
respect to a breach of Section 3.4 and Section 4.18), or 6.3(b)  as to which a party is otherwise entitled to
assert any claim for indemnification unless and until the aggregate amount of
the Losses attributable to the Purchaser Indemnitees or the Sellers
Indemnitees, as the case may be, exceeds $1,800,000 (the “Basket Amount”);
provided, however, that thereafter the Indemnifying Party (as
defined below) shall indemnify the other for any amounts in excess of, and not
including, the Basket Amount. 
Notwithstanding anything in this Agreement to the contrary, (i) the
maximum aggregate obligation of the Purchaser pursuant to Section 6.3(b)
shall not exceed $18,000,000, exclusive of any amounts due under Section 1.5,
and (ii) the maximum aggregate obligation of the Sellers pursuant to Section
6.2(b)) shall not exceed $18,000,000, exclusive of any amounts due under Section
1.5; provided that, with respect to any breach of Section 3.3
(Capital Stock) the maximum aggregate obligation of the Sellers (including all
other indemnification obligations of the Sellers pursuant to Section 6.2(b)
shall not exceed $180,000,000 exclusive of any amounts due under Section 1.5.  For the avoidance of doubt, no Party shall
be entitled to recover for any Losses to the extent such Party recovered such
Losses pursuant to Section 1.5.


 


(b)           In calculating the amount of Losses
suffered or incurred by a party for which indemnification is sought hereunder
there shall be deducted the amount of (i) any insurance paid to such party or
otherwise inuring to the benefit of such party as a result of any such Loss,
and (ii) any reduction in Taxes attributable to such Losses which directly
inures to the permanent benefit of that party for any current tax year as a
result of any such Loss.


 


(c)           No Purchaser Indemnitee shall be
entitled to any indemnification hereunder for any breach of representations and
warranties if the Sellers can establish that on or prior to the Closing Date
(x) the Company had no Knowledge of the breach and (y) the Purchaser had
Knowledge of such breach.


 


(d)           The foregoing indemnification
provisions shall be the sole and exclusive remedy and procedure for all claims
for breach of any representation or warranty, or agreement contained herein or
in any of the Schedules or Exhibits attached hereto other than a suit for
specific performance.


 


25

















 


6.5          Indemnification
Procedures.


 


(a)           Notice of Claim.  Any Person making a claim for
indemnification pursuant to Section 6.2 or 6.3 above (an “Indemnified Party”)
must give the Party (or, in the case of a Seller, the Sellers’ Representative)
from whom indemnification is sought (as the case may be, an “Indemnifying
Party”) written notice of such claim (an “Indemnification Claim Notice”)
promptly after the Indemnified Party receives any written notice of any action,
lawsuit, proceeding, investigation or other claim (a “Proceeding”)
against or involving the Indemnified Party by a Government Entity or other
third party or otherwise discovers the liability, obligation or facts giving
rise to such claim for indemnification (it being understood that any claim for
indemnity pursuant to Sections 6.2(b) or 6.3(b) above must be made by notice
given within the applicable survival period specified in Section 6.1
above, and upon the issuance of an Indemnification Claim Notice within such
period, any representation or warranty relating to such Indemnification Claim
Notice shall, notwithstanding Section 6.1, continue to survive with respect to
such claim until such claim for indemnification has been satisfied or otherwise
resolved as provided in this Section 6). 
Such notice must contain a description of the claim and the nature and
amount of such Loss (to the extent that the nature and amount of such Loss is
known at such time).  The failure to
promptly give any such notice shall not relieve the Indemnifying Party from any
liability hereunder with respect to the subject matter of such claim except to
the extent that the Indemnifying Party has actually been damaged by such
failure.  In the event that the
Purchaser and the Sellers’ Representative (with respect to the Indemnity Escrow
Fund) or the Purchaser and the Sellers (following distribution of the Indemnity
Escrow Fund) are unable to resolve any dispute with respect to a claim set
forth in an Indemnification Claim Notice within thirty (30) days following
delivery of the applicable Indemnification Claim Notice, the Indemnified Party
shall have the right to seek judicial determination of such claim.


 


(b)           Control of Defense; Conditions.  The obligations of an Indemnifying Party
under this Section 6 with respect to Losses arising from claims of any third
party that are subject to the indemnification provided in Section 6.2 or 6.3
above shall be governed by and contingent upon the following additional terms
and conditions:


 


(i)            At
its option an Indemnifying Party shall be entitled to assume control of the
defense of any claim and may appoint as lead counsel of such defense any legal
counsel selected by the Indemnifying Party and reasonably acceptable to the
Indemnified Party.


 


(ii)           If
the Indemnifying Party has assumed control of the defense in accordance with
the provisions of Section 6.5(b)(i), then the Indemnifying Party shall have the
right to settle, compromise or defend such claim at the Indemnifying Party’s
sole expense, provided that in conducting such defense, settlement and compromise:
(a) the Indemnifying Party shall not consent to any lien, encumbrance or other
adverse charge upon any asset or business of the Indemnified Party, (b) the
Indemnifying Party shall cause its counsel to consult with the Indemnified
Party and, if applicable, its counsel, and keep them fully advised of the
progress of the defense, settlement and compromise, (c) such settlement shall
involve monetary damages only and shall not in any way impose any conditions or
restrictions on the Indemnified Party’s business, and (d) the Indemnifying
Party shall promptly pay the full amount of any Losses resulting from such 


 


26

















 


claim.  Notwithstanding the foregoing, Sellers’
Representative shall not agree to any settlement concerning Taxes for any
taxable period ending on or before the Closing Date which may result in an
increase in Taxes for any taxable period ending after the Closing Date without
the prior written consent of Purchaser.


 


(iii)          Notwithstanding
Section 6.5(b)(i) above, the Indemnified Party shall be entitled to
participate in the defense of such claim and to employ counsel of its choice
for such purpose; provided, however, that such employment shall be at the
Indemnified Party’s own expense unless (A) the employment thereof has been
specifically authorized by the Indemnifying Party in writing, or (B) the
Indemnifying Party has failed to assume the defense and employ counsel in
accordance with Section 6.5(b)(i), in which case the fees and expenses of the Indemnified
Party’s counsel shall be paid by the Indemnifying Party.


 


(iv)          So
long as the Indemnifying Party is contesting any such claim in good faith in
accordance with the foregoing requirements, the Indemnified Party shall not pay
or settle any such claim.  Notwithstanding
the foregoing, the Indemnified Party may pay or settle any such claim at any
time, provided that the Indemnified Party waives any right to indemnity
therefore by the Indemnifying Party.


 


(c)           Manner of Payment.  Any indemnification obligations pursuant to
Section 6 shall be paid within fifteen (15) days after the determination
thereof whether such determination is made by: 
(i) joint agreement between the Purchaser and the Sellers’
Representative (with respect to the Indemnity Escrow Fund); (ii) among the
Purchaser and any applicable Sellers; or (iii) by judicial
determination.  Subject to the
limitations of Section 6.4(a), such Indemnifying Party shall reimburse the
Indemnified Party for any and all costs or expenses of any nature or kind whatsoever
(including but not limited to all attorneys’ fees) incurred in seeking to
collect such Losses.  Any payment
required under this Section 6 to be made to a Purchaser Indemnitee (together
with interest thereon (if any) and all costs and expenses related thereto)
shall be made first as a deduction from the Indemnity Escrow Fund and paid in
accordance with the Indemnity Escrow Agreement.  Subject to the limitations of Section 6.4(a), to the extent any
such payment to be made by the Sellers exceeds the amount of the Indemnity
Escrow Fund, the Sellers or, in the case of any payment under this Section 6 to
a Seller Indemnitee, the Purchaser, shall make such payment(s) in cash, by wire
transfer of immediately available funds to an account designated by the Indemnified
Party.


 


(d)           Instructions to Escrow Agent.  In the event of a determination that a
payment is due to any Purchaser Indemnitee, the Purchaser and the Sellers’
Representative shall issue joint written instructions to the Escrow Agent to
distribute a portion of the Indemnity Escrow Fund equal to such payment.


 


6.6          No
Contribution.  In no event shall the Company be required to
provide contribution for any obligation of the Sellers under Section 6.2.


 


27

















 


SECTION
7.   CONDITIONS TO THE CLOSING.


 


7.1          Conditions of the Purchaser’s
Obligation.  The Purchaser’s obligation to effect the
Sale at the Closing is subject to the satisfaction as of the Closing of the
following conditions precedent:


 


(a)           Representations and Warranties;
Covenants.  Each representation and
warranty set forth in Sections 3 and 4 above shall be true and correct in
all material respects (except for those representations and warranties which
are qualified as to materiality each of which shall be true and correct in all
respects) at and as of the Closing as though then made and the Sellers and the
Company shall have performed and observed in all material respects each
covenant or other obligation (except for covenants or obligations qualified as
to materiality, which shall have been performed or observed in all respects)
required to be performed or observed by it pursuant to the Transaction
Documents prior to the Closing.


 


(b)           Proceedings.  No action, suit or proceeding shall be
pending or threatened before any judicial authority or Government Entity the
result of which could prevent or prohibit the consummation of any transaction
pursuant to the Transaction Documents or cause any such transaction to be
rescinded following consummation, and no judgment, order, decree, stipulation,
injunction or charge having any such effect shall exist.


 


(c)           Opinion of Counsel.  The Purchaser shall have received from
Kirkland & Ellis, special counsel for the Sellers, an opinion addressed to
the Purchaser and dated as of the Closing Date, substantially in the form of Exhibit D
attached hereto.


 


(d)           Absence of Changes.  Since the date hereof, no fact, condition or
event shall have occurred or be existing which has had a Material Adverse
Effect.


 


(e)           HSR Act.  All approvals required under the HSR Act
shall have been received.


 


(f)            Payoff of Company Debt and
Release of Liens.  The Company shall
have discharged all Company Debt as of the opening of business on the Closing
Date and shall have obtained the release of all liens and encumbrances related
thereto subject only to the payment to be made on the Closing Date.


 


(g)           Termination of Options.  All Company Options shall have been
exercised or terminated.


 


(h)           Closing Documents.  The Company shall have delivered to the Purchaser
the following documents:


 


(i)            releases
by the Sellers of all claims against the Company and its Subsidiaries, in
substantially the form attached as Exhibit E-2 hereto, executed by each
of the Sellers and releases by the holders of Company Options of all claims
against the Company and its Subsidiaries, in substantially the form attached as
Exhibit E-3 hereto executed by each of the holders of Company
Options (the “Releases”);


 


28

















 


(ii)           evidence
in form and substance reasonably satisfactory to the Purchaser of the
satisfaction of the obligations set forth in Section 5.14 and Sections
7.1(f) and (g);


 


(iii)          the
resignations of each of the directors and officers of the Company and its
Subsidiaries;


 


(iv)          evidence
in form and substance reasonably satisfactory to the Purchaser of all consents
listed on the Consents Schedule;


 


(v)           a
certificate of an officer of the Company, dated as of the Closing Date and
signed by an executive officer of the Company, expressly certifying that the
conditions set forth in Section 7.1(a) and 7.1(e) have been met;


 


(vi)          a
copy of the resolutions duly adopted by the board of directors and the
stockholders of the Company authorizing the execution, delivery and performance
by the Company of each Transaction Document to which the Company is a party and
the consummation of the Sale and all other transactions contemplated by the
Transaction Documents, as in effect as of the Closing, certified by an officer
of such member of the Company;


 


(vii)         certificates
(each dated not more than ten (10) Business Days prior to the Closing), as to
the good standing of each of the Company and its Subsidiaries in its
jurisdiction of incorporation or formation, as applicable; and


 


(viii)        evidence
reasonably satisfactory to the Purchaser that the Letter Agreement by and among
the Company, Zatarain’s Partnership L.P. (the “Partnership”) and Solomon
Smith Barney has been terminated with no surviving obligations to the Company
or the Partnership.


 


Any condition set forth in this Section 7.1
may be waived by the Purchaser.


 


7.2          Conditions of the Sellers’ Obligation.  The Sellers’ obligation to effect the Sale
at the Closing is subject to the satisfaction as of the Closing of the
following conditions precedent:


 


(a)           Representations and Warranties;
Covenants.  Each representation and
warranty set forth in Section 2 above shall be true and correct in all material
respects (except for those representations and warranties which are qualified
as to materially, each of which shall be true and correct in all respects) at
and as of the Closing as though then made, and the Purchaser shall have
performed and observed in all material respects each covenant or other
obligation (except for covenants or obligations qualified as to materiality,
which shall have been performed or observed in all respects) required to be
performed or observed by it pursuant to the Transaction Documents prior to the
Closing.


 


(b)           Proceedings.  No action, suit or proceeding shall be
pending or threatened before any judicial authority or Government Entity the
result of which could prevent or prohibit the consummation of any transaction
pursuant to the Transaction Documents, cause any such


 


29

















 


transaction to be rescinded following such
consummation, or adversely affect the Purchaser’s performance of its
obligations pursuant to the Transaction Documents, and no judgment, order,
decree, stipulation, injunction or charge having any such effect shall exist.


 


(c)           Opinion of Counsel.  The Sellers shall have received from
Piper Rudnick LLP, special counsel for the Purchaser, an opinion addressed
to the Sellers and dated as of the Closing Date, substantially in the form of Exhibit F
attached hereto.


 


(d)           HSR Act.  All approvals required under the HSR Act
shall have been received.


 


(e)           Purchaser Closing Documents.  The Purchaser shall have delivered to the
Sellers the following documents:


 


(i)            a
certificate of an officer of the Purchaser, dated as of the Closing Date and
signed by an executive officer of the Purchaser, expressly certifying that the
condition in Section 7.2(a) has been met;


 


(ii)           a
copy of the resolutions duly adopted by the board of directors of the Purchaser
authorizing the Purchaser’s execution, delivery and performance of each
Transaction Document to which the Purchaser is a party and the consummation of
the Sale and all other transactions contemplated by the Transaction Documents,
as in effect as of the Closing, certified by an officer of the Purchaser; and


 


(iii)          a
certificate (dated not less than ten (10) Business Days prior to the Closing),
of the State Department of Assessments and Taxation of the state of Maryland as
to the good standing of the Purchaser in such state.


 


Any condition set forth in this Section 7.2 may
be waived by the Sellers.


 


SECTION
8.   DEFINITIONS.  For the purposes of this Agreement, the
following terms have the meanings set forth below:


 


“Accrued Liabilities” means the sum of the
accruals items set forth on Schedule C attached hereto, in each
case determined in a manner consistent with GAAP and the preparation of the
audited consolidated balance sheet included within the Financial Statement for
the fiscal year ended July 31, 2002.


 


An “Affiliate” of any Person means any other
Person directly or indirectly controlling, controlled by or under common
control with such first Person within the meaning of the Securities Exchange
Act.


 


“Affiliate Transactions Schedule” means the
disclosure schedule referred to in Section 4.14.


 


“Assets Schedule” means the disclosure schedule
referred to in Section 4.6.


 


30

















 


“Business” means the business of the Company
and its Subsidiaries, as conducted on the date of this Agreement.


 


“Business Day” means any day excluding
Saturday, Sunday and any day which is a legal holiday under the laws of the
State of New York or is a day on which banking institutions located in such
state are authorized or required by law or other governmental action to close.


 


“Capitalization Schedule” means the disclosure
schedule referred to in Section 4.3(a).


 


“Class A Common” means the Class A Common
Stock of the Company, par value $.01 per share.


 


“Class B Common” means the Class B Common Stock
of the Company, par value $.01 per share.


 


“Class C Common” means the Class C Common
Stock of the Company, par value $.01 per share.


 


“Closing” and “Closing Date” have the
respective meanings set forth in Section 1.3.


 


“Code” means the Internal Revenue Code of 1986,
as amended.


 


“Company Debt” means (i) all obligations of the
Company and its Subsidiaries for borrowed money evidenced by bonds, debentures,
letters of credit or other similar instruments, (ii) all debts of others
guaranteed by the Company or any of its Subsidiaries, and (iii) any interest,
principal, prepayment penalty, fees or expenses in respect of those items
listed in clauses (i) and (ii) of this defined term.


 


“Company Option”  has the meaning set forth in Section 4.3(a).


 


“Company Warrant”  has the meaning set forth in Section 4.3(a).


 


“Compliance Schedule” means the disclosure
schedule referred to in Section 4.7.


 


“Confidentiality Agreement” means the
Confidentiality Agreement regarding the confidentiality obligations of the
Purchaser, executed by the Purchaser as of January 22, 2003, a copy of which is
attached hereto as Exhibit G.


 


“Conflicts Schedule” means the disclosure
schedule referred to in Section 3.2(c).


 


“Contracts Schedule” means the disclosure
schedule referred to in Section 4.17.


 


“Consents Schedule” means the disclosure
schedule referred to in Section 4.2.


 


“Development” means any change, fact, event,
circumstance or condition that arises following the date of this Agreement or
any fact, event, circumstance or condition that becomes known following the
date of this Agreement of which the Company did not have Knowledge and could
not have had Knowledge about following reasonable inquiry prior to the date of
this Agreement.


 


31

















 


“Developments Schedule” means the disclosure
schedule referred to in Section 4.5.


 


“Disposal” has the meaning set forth in the
Solid Waste Disposal Act.


 


“Employee Benefit Plan” means any
(a) nonqualified deferred compensation or retirement plan or arrangement
which is an Employee Pension Benefit Plan, (b) qualified defined
contribution retirement plan or arrangement which is an Employee Pension
Benefit Plan, (c) qualified defined benefit retirement plan or arrangement
which is an Employee Pension Benefit Plan (including any multiemployer plan),
(d) Employee Welfare Benefit Plan or (e) material plan, program, agreement
or agreements providing fringe benefits or compensation.


 


“Employee Benefits Schedule” means the
disclosure schedule referred to in Section 4.13.


 


“Employee Matters Schedule” means the
disclosure schedule referred to in Section 5.11.


 


“Employee Pension Benefit Plan” has the meaning
set forth in ERISA Sec. 3(2).


 


“Employee Schedule” means the disclosure
schedule referred to in Section 4.16.


 


“Employee Welfare Benefit Plan” has the meaning
set forth in ERISA Sec. 3(1).


 


“Environmental Laws” means all federal, state,
and local statutes, regulations, ordinances and judicial or administrative
orders and common law concerning the pollution or protection of the
environment, including without limitation the Clean Air Act, the Clean Water
Act, the Solid Waste Disposal Act, the Resource Conservation and Recovery Act,
the Comprehensive Environmental Response, Compensation, and Liability Act of
1980, the Federal Insecticide, Fungicide and Rodenticide Act, the Occupational
Safety and Health Act, and the Emergency Planning and Community Right-to-Know
Act of 1986 (for the avoidance of doubt, any human health aspects of the
foregoing laws shall be included in the definition of Environmental Laws).


 


“Environmental Matters Schedule” means the
disclosure schedule referred to in Section 4.9.


 


“ERISA” means the Employee Retirement Income
Security Act of 1974, as amended.


 


“Financial Statements Schedule” means the
disclosure schedule referred to in Section 4.4.


 


“GAAP” means United States generally accepted
accounting principles as in effect from time to time.


 


“Government Entity” means the United States of
America or any state or other political subdivision thereof, or any entity
exercising executive, legislative, judicial, regulatory or administrative
functions of government.


 


“Hazardous Substance” means any material waste,
pollutant, contaminant, hazardous or toxic substance, petroleum,
petroleum-based or petroleum-derived substance or petroleum-contaminated
material or waste or asbestos-containing material with respect to which
liability or standards of conduct are imposed, or which are regulated, pursuant
to any Environmental Laws.


 


32

















 


“HSR Act” means the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended, and the regulations promulgated
thereunder.


 


“Income Tax” means any federal, state or local
income or similar Tax, including any interest, penalty or addition thereto.


 


“Income Tax Return” means any Tax Return
relating to Income Taxes.


 


“Intellectual Property” means all (i) patents
and patent applications; (ii) registered and unregistered works subject to
copyright law; (iii) advertising, promotional materials and product packaging;
(iv) registered and unregistered trademarks, and service marks, trade names and
trade dress and all goodwill associated with each of the foregoing; (v) domain
name registrations; (vi) computer software, websites, databases and
documentation relating thereto; and (vii) trade secrets, know-how,
manufacturing and production processes, recipes, drawings, and designs.  Each of the foregoing categories include,
without limitation, the items set forth on the Intellectual Property
Schedule attached hereto.


 


“Intellectual Property Schedule” means the
disclosure schedule referred to in Section 4.10.


 


“Knowledge” of the Company and its Subsidiaries
means the actual knowledge of Lawrence Kurzius, Regina B. Templet, David
Darragh, Dale Porter, Jim Pearse, and George Bigner.


 


“Knowledge” of the Purchaser means the actual
knowledge of Mike Betty, Geoff Carpenter, Joe Conoscenti, Dan Dalina, Angel
Ilagan, Steve Moore, Ken Mueller, Patt Murray, Gordon Stetz, Mike Thomas, Alan
Wilson and Dan Wuang.


 


“Latest Balance Sheet” means the Company’s
unaudited consolidated balance sheet as prepared by management year-to-date
March 31, 2003.


 


“Legal Requirement” means any requirement
arising under any action, law, treaty, rule or regulation, and any
determination or direction of an arbitrator or Government Entity, including
those arising under any Environmental Law.


 


“Liabilities” means any and all debts,
liabilities, claims and obligations of any nature whatsoever, whether accrued
or fixed, absolute or contingent, mature or unmatured or determined or
indeterminable.


 


“Litigation Schedule” means the disclosure
schedule referred to in Section 4.12.


 


“Loss” means, with respect to any Person, any
liability, cost, damage, deficiency, fee (including attorneys’ fees and
expenses) penalty, fine or other loss or expense, whether or not arising out of
a third party claim, against or affecting such Person, other than consequential
damages.


 


“Material Adverse Effect” means a material
adverse effect on the Business, properties, assets, liabilities, results of
operations, condition of the Company and its Subsidiaries, taken as a 


 


33

















 


whole, but excluding
(a) any general effect on the industry in which the Business is primarily
engaged, (b) any financial or other effect arising from or relating to the
announcement of the transactions contemplated by the Agreement, or (c) any
effect arising from or relating to any action taken by Sellers or the Company
at the Purchaser’s request.


 


“Net Working Capital” means, for purposes of Section 1.5
above, the excess of (x) the sum of (i) accounts receivable less reserve for
bad debts and less reserve for credit memo, (ii) inventory, and (iii) prepaid
expenses, and (iv) other current assets (excluding cash and cash
equivalents), over (y) the sum of (i) accounts payable, (ii) Accrued
Liabilities and (iii) other current liabilities, of the Company and its
Subsidiaries as of the closing of business on the Closing Date determined in
accordance with GAAP.  Notwithstanding
the foregoing, in determining the items set forth above, (1) no amounts shall
be taken into account relating to the exercise or termination of the Company
Options, the payment of the Retention Bonuses (in each case, other than the
employer portion of employment Taxes and withholding Taxes payable as a result
thereof) or the payment of Company Debt and (2) no amounts related to
Income Taxes shall be included.


 


“Outstanding Capital Stock” means the Preferred
Stock, the Class A Common, the Class B Common, the Class C Common
and the Company Warrants.


 


“Permitted Liens” means (i) liens for
Taxes or assessments and similar charges, which either are (a) not
delinquent or (b) being contested in good faith and by appropriate
proceedings, and adequate reserves (as determined in accordance with GAAP,
consistently applied) have been established on the Company’s or its
Subsidiaries’ books with respect thereto, (ii) mechanics’, materialmen’s
or contractors’ liens or encumbrances or any similar statutory lien or
restriction for amounts not yet due and payable and for which the title company
has affirmatively insured against collection, (iii) zoning, entitlement,
building and other land use regulations imposed by governmental agencies having
jurisdiction over the real property which are not violated by the current use
and operation of the real property, and (iv) covenants, conditions,
restrictions, easements and other similar matters of record affecting title to
the real property which do not materially impair the occupancy or use, value or
marketability of the owned real property which they encumber for the purposes
for which it is currently used in connection with the Business.


 


“Person” means an individual, a partnership, a
corporation, an association, a limited liability company, a joint stock
company, a trust, a joint venture, an unincorporated organization or a
Government Entity.


 


“Pre-Closing Tax Period” means any taxable year
or other taxable period ending before or on and including the Closing Date.


 


“Preferred Stock” means the Series A 13%
Cumulative Preferred Stock, par value $1.00 per share.


 


“Purchaser Material Adverse Effect” means a
material adverse effect on the business, properties, liabilities, results of
operations, and condition of the Purchaser, taken as a whole.


 


“Real Estate Schedule” means the disclosure
schedule referred to in Section 4.11.


 


34

















 


“Sale” has the meaning set forth in
Section 1.3.


 


“Securities Act” means the Securities Act of
1933, as amended.


 


“Securities Exchange Act” means the Securities
Exchange Act of 1934, as amended.


 


“Straddle Period” means any taxable period that
includes (but does not end on) the Closing Date.


 


“Subsidiary” means, with respect to any Person,
any corporation, limited liability company, partnership, association or other
business entity of which (i) if a corporation, a limited liability company
(with voting securities) a majority of the total voting power of shares of
stock entitled (without regard to the occurrence of any contingency) to vote in
the election of directors, managers or trustees thereof is at the time owned or
controlled, directly or indirectly, by that Person or one or more of the other
Subsidiaries of that Person or a combination thereof, or (ii) if a limited
liability company (without voting securities), partnership, association or
other business entity, a majority of the partnership or other similar ownership
interest thereof is at the time owned or controlled, directly or indirectly, by
any Person or one or more Subsidiaries of that Person or a combination
thereof.  For purposes hereof, a Person
or Persons shall be deemed to have a majority ownership interest in a limited
liability company, partnership, association or other business entity if such
Person or Persons shall be allocated a majority of limited liability company,
partnership, association or other business entity gains or losses or shall be
or control any managing director or general partner of such limited liability
company, partnership, association or other business entity.


 


“Subsidiary Schedule” means the disclosure
schedule referred to in Section 4.3(b).


 


“Target Net Working Capital” means $5,100,000.


 


“Tax” or “Taxes” shall mean any and all
federal, state, local, foreign and other taxes, levies, fees, imposts, duties
and charges of whatever kind (including any interest, penalties or additions to
the tax imposed in connection therewith or with respect thereto), whether or
not imposed on the Company or any Subsidiary, including, without limitation,
taxes imposed on, or measured by, income, franchise, profits, or gross
receipts, and also ad valorem, value added, sales, use, service, real or
personal property, capital stock, license, payroll, withholding, employment,
social security, workers’ compensation, unemployment compensation, utility,
severance, production, excise, stamp, occupation, premium, windfall profits,
transfer, and gains taxes, and customs duties.


 


“Tax Return” shall mean any returns, reports,
information statements, and other documentation (including any additional or
supporting material) filed or maintained, or required to be filed of
maintained, in connection with the calculation, determination, assessment or
collection of any Tax.


 


“Taxes Schedule” means the disclosure schedule
referred to in Section 4.8.


 


35

















 


“Transaction Documents” means this Agreement
and all other agreements, instruments, certificates and other documents to be
entered into or delivered by any party, pursuant to any of the foregoing.


 


SECTION
9.   MISCELLANEOUS.


 


9.1          Termination. 
This Agreement may be terminated:


 


(a)           at any time prior to the Closing by
mutual written agreement of the Purchaser and the Sellers,


 


(b)           by the Purchaser, at any time prior
to the Closing in the event that any of the Sellers or the Company is in
breach, of the representations, warranties or covenants made by any of the
Sellers or the Company in this Agreement (provided, that such condition is not
the result of any breach of any covenant, representation or warranty of the
Purchaser set forth in any Transaction Document) and such breach renders the
conditions set forth in Section 7.1 incapable of being satisfied; or


 


(c)           by the Sellers, at any time prior to
the Closing in the event the Purchaser is in breach of the representations,
warranties or covenants made by the Purchaser in this Agreement (provided, that
such condition is not the result of any breach of any covenant, representation
or warranty of the Sellers set forth in any Transaction Document) and such
breach renders the conditions set forth in Section 7.2 incapable of being
satisfied; or


 


(d)           by the Sellers and the Company, on
the one hand, and the Purchaser, on the other hand, at any time after June 30,
2003, if the Closing shall not have occurred (unless the failure or delay
resulted primarily from the Party initiating such termination.


 


Any termination of this Agreement pursuant to any of
clauses 9.1(b) through (d) shall be effected by written notice from the
Sellers’ Representative to the Purchaser (if the Sellers are the terminating
party) or the Purchaser to the Sellers’ Representative (if the Purchaser is the
terminating party).  Any termination of
this Agreement pursuant to clause 9.1(b) or (c) shall not terminate the
liability of any party for any breach or default of any covenant or other
agreement set forth herein which exists at the time of such termination.


 


9.2          Remedies. 
Except as provided in Section 6 above, no failure to exercise, and no
delay in exercising, any right, remedy, power or privilege under this Agreement
by any party shall operate as a waiver of such right, remedy, power or
privilege, nor shall any single or partial exercise of any right, remedy, power
or privilege under this Agreement preclude any other or further exercise of
such right, remedy, power or privilege or the exercise of any other right,
remedy, power or privilege.  Except as
provided in Section 6 above, the rights, remedies, powers and privileges
provided pursuant to this Agreement are cumulative and not exhaustive of any
other rights, remedies, powers and privileges which may be provided by law.


 


9.3          Confidentiality.  The Purchaser agrees to maintain all
nonpublic information regarding the Company (with respect to the period prior
to the Closing Date) and the Sellers and 


 


36

















 


their respective Affiliates confidential in a manner
consistent with the obligations of the Purchaser pursuant to the
Confidentiality Agreement.


 


9.4          Consent
to Amendments.  This Agreement may be amended or modified,
and any provisions of this Agreement may be waived, in each case upon the
approval, in writing, executed by each of the Company, the Sellers’
Representative and the Purchaser.  No
other course of dealing between or among any of the parties or any delay in
exercising any rights pursuant to this Agreement shall operate as a waiver of
any rights of any party.


 


9.5          Successors
and Assigns.  Except as otherwise expressly provided in
this Agreement, all covenants and agreements set forth in this Agreement by or
on behalf of the parties shall bind and inure to the benefit of the respective
successors and permitted assigns of the parties, whether so expressed or not,
except that neither this Agreement nor any of the rights, interests or
obligations hereunder may be assigned by the Purchaser (on the one hand), or
the Sellers (on the other hand) without the prior written consent of the other
party.  The Purchaser may (i) (at
any time prior to the Closing) at its sole discretion, in whole or in part
assign its rights pursuant to this Agreement, including the right to purchase
the Zatarain Stock, to one or more of its direct or indirect wholly owned
Affiliates, and (ii) designate one or more of its Affiliates to perform
its obligations hereunder (in any or all of which cases the Purchaser
nonetheless shall remain responsible for the performance of all of its
obligations hereunder).


 


9.6          Governing Law.  This Agreement shall be governed by and
construed in accordance with the domestic laws of the State of New York,
without giving effect to any choice of law or conflict provision or rule
(whether of the State of New York or any other jurisdiction) that would cause
the laws of any jurisdiction other than the State of New York to be applied.  In furtherance of the foregoing, the
internal law of the State of New York shall control the interpretation and
construction of this Agreement, even if under such jurisdiction’s choice of law
or conflict of law analysis, the substantive law of some other jurisdiction
would ordinarily apply.


 


9.7          Notices. 
All demands, notices, communications and reports provided for in this
Agreement shall be in writing and shall be either sent by facsimile with
confirmation to the number specified below or personally delivered or sent by
reputable overnight courier service (delivery charges prepaid) to any party at
the address specified below, or at such address, to the attention of such other
Person, and with such other copy, as the recipient party has specified by prior
written notice to the sending party pursuant to the provisions of this Section
9.7.


 


If to the Company:


 


Zatarain’s Brands, Inc.


82 First Street


Gretna, LA  70053


Telecopy:  (504) 362-2004


Attn:  Mr. Lawrence Kurzius


 


37

















 


with copies, which shall
not constitute notice to the Company, to:


 


Kirkland & Ellis


Citigroup Center


153 East 53rd Street


New York, NY 10022-4675


Telecopy:  (212) 446-4900


Attn:  Kimberly P. Taylor, Esq.


 


If to the Sellers’
Representative (which shall constitute notice to each Seller):


 


Citicorp Venture Capital,
Ltd.


399 Park Avenue


New York, NY 10043


Telecopy:  (212) 888-2940


Attn:  Richard E. 
Mayberry, Jr.


 


with copies, which shall
not constitute notice to the Seller’s Representative, to:


 


Kirkland & Ellis


Citigroup Center


153 East 53rd Street


New York, NY 10022-4675


Telecopy:  (212) 446-4900


Attn:  Kimberly P. Taylor, Esq.


 


If to the
Purchaser:


 


McCormick & Company,
Incorporated


18 Loveton Circle


Sparks, Maryland 21131


Telecopy:  (410) 527-8228


Attn: Corporate Secretary


 


with copies, which shall
not constitute notice to the Purchaser, to:


 


Piper Rudnick LLP


1200 Nineteenth
Street, N.W.


Washington,
DC  20036


Telecopy: (202)
223-2085


Attn: Theodore
Segal, Esq.


 


Any such demand, notice, communication or report shall
be deemed to have been given pursuant to this Agreement when delivered
personally, when confirmed if by facsimile or on the business day after deposit
with a reputable overnight courier service, as the case may be.


 


38

















 


9.8          Schedules
and Exhibits.  The Schedules and Exhibits to this Agreement
constitute a part of this Agreement and are incorporated into this Agreement
for all purposes as if fully set forth herein. 
Any disclosure made in any Schedule to this Agreement which may be
applicable to another Schedule to this Agreement shall be deemed to be made
with respect to such other Schedule regardless of whether or not a specific
cross reference is made thereto.


 


9.9          Counterparts. 
The parties may execute this Agreement in two or more counterparts (no
one of which need contain the signatures of all parties), each of which shall
be an original and all of which together shall constitute one and the same
instrument.


 


9.10        Time is of
the Essence.
 The Purchaser, the Company and the
Sellers hereby expressly acknowledge and agree that time is of the essence for
each and every provision of this Agreement.


 


9.11        No Third-Party Beneficiaries.  Except as otherwise expressly provided in
this Agreement, no Person which is not a party shall have any right or
obligation pursuant to this Agreement.


 


9.12        Headings. 
The headings used in this Agreement are for the purpose of reference
only and shall not affect the meaning or interpretation of any provision of this
Agreement.


 


9.13        Entire
Agreement.  Except as otherwise provided in this
Agreement, this Agreement and the Transaction Documents set forth the entire
understanding of the parties relating to the subject matter hereof, and all
prior understandings, whether written or oral are superseded by this Agreement,
and all prior understandings, and all related agreements and understandings are
hereby terminated.


 


*     *    
*     *     *


 


39

















 


IN WITNESS
WHEREOF, the parties have executed this Stock Purchase Agreement as of the date
first written above.


 


	
   

  	
  McCORMICK & COMPANY, INCORPORATED

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   /s/ W.
  Geoffrey Carpenter

  	
   

  	
  By:

  	
   /s/ Robert
  J. Lawless

  
	
   

  	
  W. Geoffrey Carpenter

  	
   

  	
   

  	
  Name:

  	
  Robert J. Lawless

  
	
   

  	
  Assistant Secretary

  	
   

  	
   

  	
  Title:

  	
  Chairman, President and

  Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ZATARAIN’S BRANDS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Lawrence
  E. Kurzius

  
	
   

  	
   

  	
  Name:

  	
  Lawrence E. Kurzius

  
	
   

  	
   

  	
  Title:

  	
  President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SELLERS’ REPRESENTATIVE

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Richard
  E. Mayberry, Jr.

  
	
   

  	
   

  	
  Name:

  	
  Richard E. Mayberry, Jr.

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  Citigroup Venture Capital

  399P/14th Fl./ZR4

  (212) 559-2651

  



 

















 


Stockholder Signature Pages


 


 


	
   

  	
  CITICORP VENTURE CAPITAL, LTD.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Richard
  E. Mayberry, Jr.

  
	
   

  	
   

  	
  Name:

  	
  Richard E. Mayberry, Jr.

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
  Citigroup Venture Capital

  
	
   

  	
  399P/14th Fl./ZR4

  
	
   

  	
  (212) 559-2651

  
	
   

  	
   

  
	
   

  	
  CCT VI PARTNERSHIP, L.P.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Anthony
  P. Mirra

  
	
   

  	
   

  	
  Name:

  	
  Anthony P. Mirra

  
	
   

  	
   

  	
  Title:

  	
  Secretary

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  63BR PARTNERSHIP

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ James A.
  Urry

  
	
   

  	
   

  	
  Name:

  	
  James A. Urry

  
	
   

  	
   

  	
  Title:

  	
  Attorney-in-fact

  



 

















 


Stockholder Signature Pages (continued)


 


	
   

  	
  WORLD EQUITY PARTNERS, L.P.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Richard
  E. Mayberry, Jr.

  
	
   

  	
   

  	
  Name:

  	
  Richard E. Mayberry, Jr.

  
	
   

  	
   

  	
  Title:

  	
  Managing Director

  



 


 

















 


Stockholder Signature Pages (continued)


 


	
   

  	
  DB SECURITIES, as Custodian for

  
	
   

  	
  RICHARD W. STRANGER SEP IRA

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Roseanne
  Weinel

  
	
   

  	
   

  	
  Name:

  	
  Roseanne Weinel

  
	
   

  	
   

  	
  Title:

  	
  DB IRA Dept. Associate

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Signature Guaranteed

  
	
   

  	
  Medallion Guaranteed

  
	
   

  	
  Deutsche Bank Securities, Inc.

  
	
   

  	
   

  
	
   

  	
  /s/

  
	
   

  	
   

  	
  NYSE, Inc. Medallion Signature Program

  



 

















 


Stockholder Signature Pages (continued)


 


	
   

  	
  INVESTMENT MANAGEMENT ADVISORS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Robert
  W. Herrman

  
	
   

  	
   

  	
  Name:

  	
  Robert W. Herrman

  
	
   

  	
   

  	
  Title:

  	
  President

  



 

















 


Stockholder Signature Pages (continued)


 


	
   

  	
  RICHARD CASHIN

  
	
   

  	
   

  
	
   

  	
  /s/ Richard Cashin

  
	
   

  	
   

  
	
   

  	
  COMMUNITY FUNDS, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Mary
  Greenebaum

  
	
   

  	
   

  	
  Name:

  	
  Mary Greenebaum

  
	
   

  	
   

  	
  Title:

  	
  Chief Investment Officer

  



 

















 


	
   

  	
  MICHAEL DELANEY

  
	
   

  
	
   

  	
  /s/ Michael Delaney

  
	
   

  
	
   

  	
  RICHARD E. MAYBERRY, JR

  
	
   

  
	
   

  	
  /s/ Richard E. Mayberry, Jr.

  
	
   

  
	
   

  	
  DAVID F. THOMAS

  
	
   

  
	
   

  	
  /s/ David F. Thomas

  
	
   

  
	
   

  	
  JAMES URRY

  
	
   

  
	
   

  	
  /s/ James Urry

  



 

















 


	
   

  	
  LAWRENCE E. KURZIUS

  
	
   

  
	
   

  	
  /s/ Lawrence E. Kurzius

  
	
   

  
	
   

  	
  KATHERINE SHERRILL

  
	
   

  
	
   

  	
  /s/ Katherine Sherrill

  
	
   

  
	
   

  	
  BRUCE BRUCKMANN

  
	
   

  
	
   

  	
  /s/ Bruce Bruckmann

  
	
   

  
	
   

  	
  HAROLD ROSSER

  
	
   

  
	
   

  	
  /s/ Harold O. Rosser