Common use of Break-Up Fee Clause in Contracts

Break-Up Fee. In the event that (a) this Agreement terminates pursuant to Section 4.4(e) by Purchaser or pursuant to Section 4.4(h), and (b) a Competing Transaction is consummated, then Sellers will pay to Purchaser in cash an amount (the “Break-Up Fee”) equal to the Cash Amount multiplied by the greater of (i) 3.5%; or (ii) the Alternative Sale Break-Up Fee Percentage (as defined below). The Break-Up Fee shall be paid in cash concurrently with the consummation (which, in the case of a plan of reorganization or liquidation, shall be the effectiveness) of the first Competing Transaction to occur simultaneously with or following the termination of this Agreement, and shall be paid from the first proceeds of such Competing Transaction and from each succeeding Competing Transaction prior to payment of any other claims including claims secured by the assets that are the subject of the Competing Transaction (other than claims arising under the Credit Agreement, dated as of February 3, 2009, among Interstate Bakeries Corporation and certain of its affiliates and General Electric Capital Corporation (as amended, the “ABL Agreement”)) until the Break-Up Fee is paid in full. The Break-Up Fee will constitute, pursuant to sections 364 and 503 of the Bankruptcy Code, a superpriority administrative expense claim in each of Seller’s bankruptcy estates with priority over any and all administrative expense claims other than claims arising under the ABL Agreement. Any Break-Up Fee payable pursuant to this Agreement will be allowed and paid, without any further Bankruptcy Court approval or order. Notwithstanding anything to the contrary contained herein, upon timely payment of the Break-Up Fee to Purchaser in accordance with this Section 7.2, Sellers and their respective representatives and Affiliates, on the one hand, and Parent and Purchaser and their respective representatives and Affiliates, on the other hand, will be deemed to have fully released and discharged each other from any Liability resulting from the termination of this Agreement and neither Sellers and their respective representatives and Affiliates, on the one hand, and Parent and Purchaser and their respective representatives and Affiliates, on the other hand, nor any other Person will have any other remedy or cause of action under or relating to this Agreement or any applicable Law, including for reimbursement of expenses. The “Alternative Sale Break-Up Fee Percentage” shall equal the highest breakup fee percentage (which breakup fee percentage shall include all breakup, expense reimbursement, topping and similar fees) approved by the Bankruptcy Court in connection with the sale by one or more of the Sellers of assets totaling at least $10 million. In the event such approval occurs after payment by the Sellers to Purchaser hereunder of the Break-Up Fee, any additional amounts owed in respect of the Break-Up Fee shall have the same protections in terms of priority and method of payment as the payment of the original Break-Up Fee as set forth above. Sellers will not qualify any bid to participate in the auction contemplated by the Bidding Procedures Order that does not include at a minimum a cash consideration sufficient to repay both any amounts outstanding under the ABL Agreement and the Break-Up Fee.

Break-Up Fee. In the event that (a) this Agreement terminates is terminated pursuant to Section 4.4(e11.1(i), then Sellers shall pay to Purchaser promptly, but in no event more than fifteen business days following the date of the termination event, by wire transfer of immediately available funds, to such account as Purchaser shall designate, the Break-up Fee. In the event this Agreement is terminated pursuant to any of Section 11.1(a) through Section 11.1(h) (other than as a result of a material breach by Purchaser of its obligations, representations, warranties or other agreements hereunder), then Sellers shall pay to Purchaser promptly, but in no event more than fifteen business days following the date of the termination event, by wire transfer of immediately available funds, to such account as Purchaser shall designate, all of Purchaser's actual expenses based on reasonably detailed documentation up to an aggregate amount of $150,000 incurred by it in connection with the transactions contemplated by this Agreement. If at any time after the date of any termination of this Agreement pursuant to Section 4.4(h11.1 hereof (other than as a result of a material breach of Purchaser's obligations, representations, warranties or other agreements hereunder, and assuming Purchaser has not previously received the Break-up Fee), and (b) a Competing Sellers endorse or accept an Alternative Transaction that is consummated, then Sellers will pay to Purchaser in cash an amount (consummated within one year from the “Break-Up Fee”) equal to the Cash Amount multiplied by the greater date of (i) 3.5%; or (ii) the Alternative Sale Break-Up Fee Percentage (as defined below). The Break-Up Fee shall be paid in cash concurrently with the consummation (which, in the case of a plan of reorganization or liquidation, shall be the effectiveness) of the first Competing Transaction to occur simultaneously with or following the termination of this Agreement, and shall be paid from the first proceeds of simultaneous with such Competing Transaction and from each succeeding Competing Transaction prior consummation, Sellers will pay to payment of any other claims including claims secured by the assets that are the subject of the Competing Transaction (other than claims arising under the Credit Agreement, dated as of February 3, 2009, among Interstate Bakeries Corporation and certain of its affiliates and General Electric Capital Corporation (as amended, the “ABL Agreement”)) until Pur- chaser the Break-Up Fee is up Fee. Notwithstanding the foregoing, the total amount of any fees and expenses paid in full. The Break-Up Fee will constitute, pursuant to sections 364 and 503 of the Bankruptcy Code, a superpriority administrative expense claim in each of Seller’s bankruptcy estates with priority over any and all administrative expense claims other than claims arising under the ABL Agreement. Any Break-Up Fee payable pursuant to this Agreement will be allowed Section 11.2 paid shall not exceed $600,000. Payment of any fees and paid, without any further Bankruptcy Court approval or order. Notwithstanding anything expenses paid pursuant to the contrary contained herein, upon timely payment of the Break-Up Fee to Purchaser in accordance with this Section 7.2, Sellers and their respective representatives and Affiliates, 11.2 is conditioned on the one hand, and Parent and Purchaser and their respective representatives and Affiliates, on the other hand, will be deemed to have fully released and discharged each other from any Liability resulting from the termination of this Agreement and neither Sellers and their respective representatives and Affiliates, on the one hand, and Parent and Purchaser and their respective representatives and Affiliates, on the other hand, nor any other Person will have any other remedy or cause of action under or relating to this Agreement or any applicable Law, including for reimbursement of expenses. The “Alternative Sale Break-Up Fee Percentage” shall equal the highest breakup fee percentage (which breakup fee percentage shall include all breakup, expense reimbursement, topping and similar fees) approved approval by the Bankruptcy Court in connection with the sale by one or more as part of the Sellers of assets totaling at least $10 million. In the event such approval occurs after payment by the Sellers to Purchaser hereunder of the Break-Up Fee, any additional amounts owed in respect of the Break-Up Fee shall have the same protections in terms of priority and method of payment as the payment of the original Break-Up Fee as set forth above. Sellers will not qualify any bid to participate in the auction contemplated by the Bidding Sale Procedures Order that does not include at a minimum a cash consideration sufficient to repay both any amounts outstanding under the ABL Agreement and the Break-Up FeeOrder.

Break-Up Fee. In consideration for Purchasers having expended considerable time and expense in connection with this Agreement and the negotiation thereof and the identification and quantification of the assets of the Sellers, in the event that any of the Sellers (ai) consummates a transaction in respect of a Bid, other than that of Purchasers, or (ii) sells, transfers, leases or otherwise disposes directly or indirectly, including through an asset sale, stock sale, merger, reorganization or other similar transaction, of all or substantially all or a material portion of the Purchased Assets (or agrees to do any of the foregoing) in a transaction or series of transactions within 12 months from the date hereof (either of clause (i) or (ii) being an "Alternative Transaction"), Sellers shall pay in cash in immediately available funds to Purchasers a break-up fee in an amount equal to three million four hundred thirty five thousand dollars ($3,435,000) (the "Break-Up Fee") plus expense reimbursement equal to the reasonable costs and reasonable out-of-pocket fees and expenses of counsel, accountants, financial and other advisors incurred by Purchasers in connection with their legal, financial and business due diligence and the preparation and negotiation of this Agreement terminates and any Ancillary Agreements (the "Expense Reimbursement"); provided that in no event shall the Break-Up Fee or Expense Reimbursement be payable to Purchasers if this Agreement is terminated by Sellers pursuant to Section 4.4(e) by Purchaser or pursuant ). Sellers' obligation to Section 4.4(h), and (b) a Competing Transaction is consummated, then Sellers will pay to Purchaser in cash an amount (the “Break-Up Fee”) equal to the Cash Amount multiplied by the greater of (i) 3.5%; or (ii) the Alternative Sale Break-Up Fee Percentage and Expense Reimbursement shall survive termination of this Agreement, and on the Petition Date, Sellers shall make a motion seeking an order that provides that the Break-Up Fee and Expense Reimbursement shall be paid as administrative expense claims in the Bankruptcy Case under Sections 503(b) and 507(a)(1) of the Bankruptcy Code and that (as defined below). The i) the Break-Up Fee shall be paid in cash concurrently with payable upon the earlier to occur of the closing of the Alternative Transaction and consummation (which, in the case of a plan of reorganization or liquidation, liquidating plan of reorganization and (ii) the Expense Reimbursement shall be the effectiveness) of the first Competing Transaction to occur simultaneously paid in accordance with or following the this Agreement as soon as possible upon termination of this Agreement, and shall be paid from the first proceeds of such Competing Transaction and from each succeeding Competing Transaction prior to payment of any other claims including claims secured by the assets that are the subject of the Competing Transaction (other than claims arising under the Credit Agreement, dated as of February 3, 2009, among Interstate Bakeries Corporation and certain of its affiliates and General Electric Capital Corporation (as amended, the “ABL Agreement”)) until the Break-Up Fee is paid in full. The Break-Up Fee will constitute, pursuant to sections 364 and 503 of the Bankruptcy Code, a superpriority administrative expense claim in each of Seller’s bankruptcy estates with priority over any and all administrative expense claims other than claims arising under the ABL Agreement. Any Break-Up Fee payable pursuant to this Agreement will be allowed and paid, without any further Bankruptcy Court approval or order. Notwithstanding anything to the contrary contained herein, upon timely payment of the Break-Up Fee to Purchaser in accordance with this Section 7.2, Sellers and their respective representatives and Affiliates, on the one hand, and Parent and Purchaser and their respective representatives and Affiliates, on the other hand, will be deemed to have fully released and discharged each other from any Liability resulting from the termination of this Agreement and neither Sellers and their respective representatives and Affiliates, on the one hand, and Parent and Purchaser and their respective representatives and Affiliates, on the other hand, nor any other Person will have any other remedy or cause of action under or relating to this Agreement or any applicable Law, including for reimbursement of expenses. The “Alternative Sale Break-Up Fee Percentage” shall equal the highest breakup fee percentage (which breakup fee percentage shall include all breakup, expense reimbursement, topping and similar fees) approved by the Bankruptcy Court in connection with the sale by one or more of the Sellers of assets totaling at least $10 million. In the event such approval occurs after payment by the Sellers to Purchaser hereunder of the Break-Up Fee, any additional amounts owed in respect of the Break-Up Fee shall have the same protections in terms of priority and method of payment as the payment of the original Break-Up Fee as set forth above. Sellers will not qualify any bid to participate in the auction contemplated by the Bidding Procedures Order that does not include at a minimum a cash consideration sufficient to repay both any amounts outstanding under the ABL Agreement and the Break-Up Fee.

Break-Up Fee. (a) (a) In the event that (a) this Agreement terminates pursuant the Company is unable to consummate the transactions contemplated in Section 4.4(e) 1.3 hereof on the First Closing Date due to a determination by Purchaser or pursuant to Section 4.4(h)the board of directors of the Company that the consummation of such transactions conflict with its exercise of its fiduciary duties under applicable Law including, and (b) a Competing Transaction is consummatedwithout limitation, then Sellers will the Delaware General Corporation Law, the Company shall pay to Purchaser the Purchasers a “break-up” fee in cash an the amount of two hundred and fifty thousand dollars ($250,000) (the “Break-Break Up Fee”); provided, however, that if the transactions contemplated in Section 1.3(a) equal to are not consummated because the Cash Amount multiplied acquisition of Beta Analytics, Incorporated is not consummated by the greater Company as a result of (i) 3.5%; or (ii) the Alternative Sale Break-Up Fee Percentage (as defined below). The Break-exercise by the Company of its rights to terminate its agreement to acquire such company due to a material adverse change in the condition of such company, the Break Up Fee shall not be payable hereunder. The Break Up Fee shall by paid by the Company to the Purchasers by certified check, made payable to each Purchaser, or wire transfer of immediately available funds to such account as each Purchaser designates, in cash concurrently an amount equal to each Purchaser’s pro rata share based on the Purchase Price paid by such Purchaser at the First Closing as compared with the consummation Purchase Price paid by all of the Purchasers at the First Closing (which, in the case of a plan of reorganization or liquidation, shall be the effectiveness“Pro Rata Share”) of the first Competing Transaction Break Up Fee. If the Purchasers are unable to occur simultaneously consummate the transactions contemplated in Section 1.3(a) on the First Closing Date for any reason other than as a result of the failure of the Company to comply with its obligations hereunder or following to satisfy the termination closing conditions set forth in Section 5.1, each Purchaser shall pay to the Company its Pro Rata Share of this Agreement, and the Break Up Fee. The Break Up Fee referenced in the immediately preceding sentence shall be by paid from the first proceeds of such Competing Transaction and from each succeeding Competing Transaction prior to payment of any other claims including claims secured by the assets that are the subject of the Competing Transaction (other than claims arising under the Credit Agreement, dated as of February 3, 2009, among Interstate Bakeries Corporation and certain of its affiliates and General Electric Capital Corporation (as amended, the “ABL Agreement”)) until the Break-Up Fee is paid in full. The Break-Up Fee will constitute, pursuant to sections 364 and 503 of the Bankruptcy Code, a superpriority administrative expense claim in each of Seller’s bankruptcy estates with priority over any and all administrative expense claims other than claims arising under the ABL Agreement. Any Break-Up Fee payable pursuant to this Agreement will be allowed and paid, without any further Bankruptcy Court approval or order. Notwithstanding anything Purchasers to the contrary contained hereinCompany by certified check, upon timely payment made payable to the Company, or wire transfer of the Break-Up Fee immediately available funds to Purchaser in accordance with this Section 7.2, Sellers and their respective representatives and Affiliates, on the one hand, and Parent and Purchaser and their respective representatives and Affiliates, on the other hand, will be deemed to have fully released and discharged each other from any Liability resulting from the termination of this Agreement and neither Sellers and their respective representatives and Affiliates, on the one hand, and Parent and Purchaser and their respective representatives and Affiliates, on the other hand, nor any other Person will have any other remedy or cause of action under or relating to this Agreement or any applicable Law, including for reimbursement of expenses. The “Alternative Sale Break-Up Fee Percentage” shall equal the highest breakup fee percentage (which breakup fee percentage shall include all breakup, expense reimbursement, topping and similar fees) approved by the Bankruptcy Court in connection with the sale by one or more of the Sellers of assets totaling at least $10 million. In the event such approval occurs after payment by the Sellers to Purchaser hereunder of the Break-Up Fee, any additional amounts owed in respect of the Break-Up Fee shall have the same protections in terms of priority and method of payment account as the payment of the original Break-Up Fee as set forth above. Sellers will not qualify any bid to participate in the auction contemplated by the Bidding Procedures Order that does not include at a minimum a cash consideration sufficient to repay both any amounts outstanding under the ABL Agreement and the Break-Up FeeCompany designates.

Break-Up Fee. In the event that (a) this Agreement terminates pursuant the Company is required to pay a Termination Fee to Parent under Section 4.4(e) by Purchaser or pursuant to Section 4.4(h)7.03 of the Merger Agreement, and (b) a Competing Transaction is consummated, then Sellers will pay to Purchaser in cash an 85% of the total fee amount (excluding the “Break-Up Fee”Expense Amount, which is addressed below) equal shall be for the benefit of and payable to Carlyle and 15% of the total fee amount (excluding the Expense Amount) shall be for the benefit of and payable to Xxxxxx and Xxxxxxx (but in no event shall the portion of the fee amount paid to Xxxxxx and Xxxxxxx, when added to the Cash portion of the Expense Amount multiplied by the greater of (i) 3.5%; or (ii) the Alternative Sale Breakpaid to Xxxxxx and Xxxxxxx, exceed their out-Up Fee Percentage (as defined below). The Breakof-Up Fee shall be paid pocket expenses incurred in cash concurrently connection with the consummation (which, in the case of a plan of reorganization or liquidation, shall be the effectiveness) of the first Competing Transaction to occur simultaneously with or following the termination of this Agreement, and shall be paid from the first proceeds of such Competing Transaction and from each succeeding Competing Transaction prior to payment of any other claims including claims secured by the assets that transactions contemplated hereby for which they are the subject of the Competing Transaction (other than claims arising under the Credit Agreement, dated as of February 3, 2009, among Interstate Bakeries Corporation and certain of its affiliates and General Electric Capital Corporation (as amended, the “ABL Agreement”)) until the Break-Up Fee is paid in full. The Break-Up Fee will constitute, pursuant to sections 364 and 503 of the Bankruptcy Code, a superpriority administrative expense claim in each of Seller’s bankruptcy estates with priority over any and all administrative expense claims other than claims arising under the ABL Agreement. Any Break-Up Fee payable pursuant to this Agreement will be allowed and paid, without any further Bankruptcy Court approval or order. Notwithstanding anything to the contrary contained herein, upon timely payment of the Break-Up Fee to Purchaser responsible in accordance with this Section 7.25.4), Sellers provided that if the Company is sold to an entity not affiliated with Carlyle in an alternative transaction within twelve months following the date of the termination of the Merger Agreement or pursuant to an agreement signed by the Company within twelve months following the date of the termination of the Merger Agreement, Xxxxxx and their respective representatives Xxxxxxx will remit to Carlyle the portion of the Termination Fee (excluding the Expense Amount) paid to them, if any. In the event the Company is required to pay Parent the Expense Amount under Section 7.03 of the Merger Agreement, Parent shall reimburse the Parties for, or pay on behalf of the Parties, all of the out-of-pocket expenses incurred by the Parties in connection with the transactions contemplated by the Transaction Agreements. The Parties agree that if the Merger Agreement is terminated and Affiliatesthe Expense Amount is not payable or is insufficient to pay all of the out-of-pocket expenses of the Parties, then the Parties shall be jointly responsible (Carlyle for 50%, on the one hand, and Parent Xxxxxx and Purchaser and their respective representatives and AffiliatesXxxxxxx for 50%, on the other hand) for their out-of-pocket expenses other than for their principal outside legal counsel (Debevoise and Dow Xxxxxx), will for which they shall be deemed to have fully released and discharged each other from any Liability resulting from the termination of this Agreement and neither Sellers and their respective representatives and Affiliatesindividually responsible (Carlyle for Debevoise, on the one hand, and Parent Xxxxxx and Purchaser and their respective representatives and AffiliatesXxxxxxx for Dow Xxxxxx, on the other hand). Any portion of the Expense Amount that is paid by the Company and not used to pay the joint expenses shall be split equally between Carlyle, nor any on the one hand, and Xxxxxx and Xxxxxxx, on the other Person will have any other remedy or cause of action under or relating to this Agreement or any applicable Law, including for reimbursement of expenseshand. The “Alternative Sale Break-Up Fee Percentage” Parties shall equal the highest breakup fee percentage (which breakup fee percentage shall include all breakup, expense reimbursement, topping and similar fees) approved by the Bankruptcy Court cooperate in good faith in connection with the sale by one or more of the Sellers of assets totaling at least $10 million. In the event such approval occurs after payment by the Sellers to Purchaser hereunder of the Break-Up Fee, any additional amounts owed in respect of the Break-Up Fee shall have the same protections in terms of priority and method of payment as the payment of expenses. This Section 5.4 is subject to the original Break-Up Fee as set forth above. Sellers will not qualify any bid to participate in the auction contemplated by the Bidding Procedures Order that does not include at a minimum a cash consideration sufficient to repay both any amounts outstanding under the ABL Agreement and the Break-Up Feeprovisions of Section 9 hereof.