Xxxxx 0, 0000
Xxxxxx Xxxxxx PetCare Company Tower Holding Company, Inc.
Checkerboard Square c/o Nestle Purina PetCare Company
St. Louis, MO 00000 Xxxxxxxxxxxx Xxxxxx
Xx. Xxxxx, XX 00000
Dear Sirs:
This letter (the "Letter Agreement") sets forth certain agreements by
and among Interstate Bakeries Corporation, a Delaware corporation ("IBC"),
Nestle Purina PetCare Company, a Missouri corporation ("Nestle Purina"), and
Tower Holding Company, Inc., a Delaware corporation ("Tower Holding") wholly
owned by Nestle Purina. Nestle Purina and Tower Holding are collectively
referred to as "Nestle" in this Agreement.
Tower Holding hereby agrees to sell, assign, transfer and convey to
IBC, and IBC agrees to purchase (the "Purchase"), record title to and beneficial
ownership of Seven Million Three Hundred Forty-Eight Thousand One Hundred
Fifty-Four (7,348,154) shares of the Common Stock, $.01 par value, of IBC (the
"Purchased Shares"), free and clear of any security interests, liens or
encumbrances of any kind, for a price of Twenty-One and 50/100 Dollars ($21.50)
per Purchased Share, for a total purchase price of One Hundred Fifty-Seven
Million Nine Hundred Eighty-Five Thousand Three Hundred Eleven and 00/100
Dollars ($157,985,311) (the "Purchase Price"). The closing of the Purchase shall
take place at 10:00 a.m., New York time, on April 30, 2002, or at such earlier
date and time as agreed by the parties (the "Closing Date").
The payment of the Purchase Price by IBC shall be made on the Closing
Date by wire transfer of immediately available funds, in accordance with wire
transfer instructions provided by Nestle to IBC, against receipt of certificates
representing the Shares, together with stock powers sufficient to accomplish
such transfer to IBC.
Each of Nestle Purina and Tower Holding represents and warrants to IBC
that Tower Holding owns beneficially and of record the Purchased Shares, and
that the Purchased Shares are free and clear of any and all liens, encumbrances,
charges or claims except to the extent provided in the Shareholder Agreement.
Each of Nestle Purina and Tower Holding represents and warrants to IBC that each
of them has full corporate power and authority to enter into and consummate the
transactions contemplated by this Letter Agreement, that this Letter Agreement
Nestle Purina PetCare Company
Tower Holding Company
April 1, 2002
Page 2
is enforceable in accordance has been duly executed and delivered by, and
constitutes the valid and binding agreement of, each of Nestle Purina and Tower
Holding, and that this Letter Agreement with its terms, except as such
enforcement may be limited by laws affecting or relating to creditors' rights
generally, and general principles of equity. Each of Nestle Purina and Tower
Holding further represents and warrants to IBC that the execution and delivery
of this Letter Agreement does not violate, conflict with or result in a breach
of any provision of, or constitute default under the organizational documents of
either of them, nor any agreement or law applicable to either of them. No
consents, approvals or filings, other than such as have heretofore been obtained
or made, are required to authorize the sale of the Purchased Shares as herein
contemplated.
IBC represents and warrants to Nestle that it has full corporate power
and authority to enter into and consummate the transactions contemplated by this
Letter Agreement, that this Letter Agreement has been duly executed and
delivered by, and constitutes the valid and binding agreement of IBC, and that
this Letter Agreement is enforceable in accordance with its terms, except as
such enforcement may be limited by laws affecting or relating to creditors'
rights generally, and general principles of equity. IBC further represents and
warrants to Nestle that the execution and delivery of this Letter Agreement does
not violate, conflict with or result in a breach of any provision of, or
constitute default under its organizational documents, nor any agreement, other
than (prior to the time the Amendment, as defined below, is effective) the
Credit Agreement dated July 19, 2001 (the "Credit Agreement") by and among IBC
as Guarantor, Interstate Brands Corporation and Interstate Brands West
Corporation as Borrowers, The Chase Manhattan Bank as Administrative Agent, and
the other agents and lenders party thereto, or law applicable to IBC. No
consents, approvals or filings, other than those already obtained and an
amendment of the Credit Agreement (the "Amendment"), which Amendment shall be
obtained by IBC on or before the Closing Date, are required for the purchase of
the Purchased Shares as herein contemplated. IBC further represents and warrants
to Nestle that IBC has cash available sufficient to enable it to finance and
consummate the Purchase on the terms set forth herein.
This Letter Agreement also constitutes the written request of Tower
Holding with regard to the disposition by an underwritten public offering of
Seven Million Five Hundred Thousand (7,500,000) shares of the Common Stock,
$.01 par value, of IBC (the "Registered Shares") owned by Tower Holding, and
the waiver by IBC of Nestle's obligation to first offer such Registered Shares
to IBC, pursuant to that certain Shareholder Agreement, as amended and
supplemented, by and among IBC and Nestle, dated July 22, 1995 (the
"Shareholder Agreement"). Pursuant to Section 5.1 of the Shareholder
Agreement, IBC will use its best efforts to prepare and file with the
Securities and Exchange Commission, and to cause to be declared effective, in
each case as expeditiously as possible, a registration statement through which
an underwritten public offering of the Registered Shares may be made by
Nestle; provided, however, that notwithstanding Section 5.1(e) of the
Shareholder Agreement, the
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Nestle Purina PetCare Company
Tower Holding Company
April 1, 2002
Page 3
number of Registered Shares to be included in such underwritten public offering
shall not be limited or reduced by such Section 5.1(e). IBC shall participate in
and render assistance in the marketing of, and the "road show" with respect to,
such underwritten public offering as may reasonably be requested by Nestle.
Except as otherwise set forth herein, Nestle and IBC shall comply in all
respects with the terms and conditions of the Shareholder Agreement regarding
the registration and sale of the Registered Shares.
Nestle and IBC agree that from time to time they shall promptly
execute and deliver all further instruments and documents, and take all such
further action, that may be necessary or appropriate, as reasonably requested by
any party, to accomplish the purposes of this Letter Agreement. This Letter
Agreement shall be governed by the laws of the State of Delaware.
Very truly yours,
INTERSTATE BAKERIES CORPORATION
/s/ Xxxxxxx X. Xxxxxxxx
---------------------------
By: Xxxxxxx X. Xxxxxxxx
Title: Chairman and Chief Executive Officer
Accepted and agreed as of April 1, 2002.
NESTLE PURINA PETCARE COMPANY
/s/ Xxxxxxx Xxxxxx
---------------------------
By: Xxxxxxx Xxxxxx
Title: Vice President and Assistant Secretary
TOWER HOLDING COMPANY, INC.
/s/ Xxxxxxx Xxxxxx
---------------------------
By: Xxxxxxx Xxxxxx
Title: Vice President and Assistant Secretary
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