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 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.

Break-Up Fee. In The Purchaser shall be entitled to immediate payment of a compensatory termination fee (the event that "Break-up Fee") in cash in an amount equal to $2,800,000, if: (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%; the Bankruptcy Court does not issue the Sale Approval Order within 45 days after the date of the Preliminary Hearing or approves a higher and better bid than that submitted by the Purchaser, (ii) the Alternative Closing of a Sale Break-Up Fee Percentage to the Successful Bidder (as defined below). The Break-Up Fee shall be paid but not the Purchaser) has occurred and (iii) the Purchaser is not then in cash concurrently with material breach of this Agreement; (b) the consummation (which, in the case of Bankruptcy Court confirms a plan of reorganization for the Sellers, which plan transfers any of the Purchased Assets to a person other than the Purchaser and such plan of reorganization is consummated and the Purchaser is not then in material breach of this Agreement; (c) the Purchaser is not in material breach of this Agreement and the Sellers (i) withdraw the motion for Bankruptcy Court approval of the Sale and (ii) subsequently liquidate or liquidationotherwise dispose of the Purchased Assets, in one or a series of transactions; or (d) the Sellers withdraw the motion for Bankruptcy Approval of the Sale and an Alternative Transaction is pursued. Until paid, the Break-up Fee shall be allowed by the effectivenessBankruptcy Court as an administrative claim pursuant to Section 503(b)(1)(A) of the first Competing Transaction to occur simultaneously Bankruptcy Code with priority over any or following all other administrative expenses in 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 Chapter 11 Cases 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”)kind specified in Sections 503(b) until the Break-Up Fee is paid in full. The Break-Up Fee will constitute, pursuant to sections 364 and 503 or 507(b) of the Bankruptcy Code, or if the Chapter 11 Cases are converted to Chapter 7 cases. This provision shall be 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 paidrequirement of, 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 handapproved by, 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 incorporated 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 FeeOrder.

Break-Up Fee. (a) (a) In the event that the Company is unable to consummate the transactions contemplated in Section 1.3 hereof on the First Closing Date due to a determination by 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, without limitation, the Delaware General Corporation Law, the Company shall pay to the Purchasers a “break-up” fee in the amount of two hundred and fifty thousand dollars (a$250,000) this Agreement terminates pursuant (the “Break Up Fee”); provided, however, that if the transactions contemplated in Section 1.3(a) are not consummated because the acquisition of Beta Analytics, Incorporated is not consummated by the Company as a result of the 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 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 Purchase Price paid by all of the Purchasers at the First Closing (“Pro Rata Share”) of the Break Up Fee. If the Purchasers are unable to consummate the transactions contemplated in Section 4.4(e1.3(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 to satisfy the closing conditions set forth in Section 5.1, each Purchaser shall pay to the Company its Pro Rata Share of the Break Up Fee. The Break Up Fee referenced in the immediately preceding sentence shall by Purchaser paid by the Purchasers to the Company by certified check, made payable to the Company, or pursuant wire transfer of immediately available funds to Section 4.4(h), and such account as the Company designates. (b) a Competing Transaction is consummated, then Sellers will pay to Purchaser in cash an amount (The Company and the “Break-Up Fee”) equal to Purchasers agree that if 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-Break Up Fee is paid in full. The Break-Up Fee will constitutepayable hereunder, pursuant to sections 364 and 503 the right of the Bankruptcy CodeCompany or the Purchasers, a superpriority administrative expense claim in each of Seller’s bankruptcy estates with priority over any as the case may be, to receive such amount shall constitute the sole 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 handexclusive remedy for, and Parent and Purchaser and their respective representatives and Affiliatessuch amount shall constitute liquidated damages in respect of, 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 regardless of the Sellers of assets totaling at least $10 million. In the event circumstances giving rise to 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 Feetermination.

Break-Up Fee. In the event that (a) (a) this Agreement terminates pursuant If the Company is unable to consummate the transactions contemplated in Section 4.4(e) by Purchaser or pursuant 1.2 hereof on the Initial Closing Date due 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%; a determination by 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, without limitation, the New York Business Corporation Law or (ii) a Termination Event, the Alternative Sale BreakCompany shall pay to the Purchasers a “break-up” fee in the amount of one hundred fifty thousand dollars ($150,000) (the “Break Up Fee Percentage (as defined belowFee”). The Break-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 an amount equal to each Purchaser’s pro rata share (based on the Series A-1 Purchased Shares Purchase Price to be paid in cash concurrently with by such Purchaser over the consummation aggregate Series A-1 Purchased Shares Purchase Price to be paid by all Purchasers (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 1.2 on the 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 4.1 or Section 4.2, 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 Purchasers to the Company by certified check, made payable to the Company, or wire transfer of immediately available funds to such account as the Company designates. (b) The Company and the Purchasers agree that are if 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-Break Up Fee is paid in full. The Break-Up Fee will constitutepayable hereunder, pursuant to sections 364 and 503 the right of the Bankruptcy CodeCompany or the Purchasers, a superpriority administrative expense claim in each of Seller’s bankruptcy estates with priority over any as the case may be, to receive such amount shall constitute the sole 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 handexclusive remedy for, and Parent and Purchaser and their respective representatives and Affiliatessuch amount shall constitute liquidated damages in respect of, 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 regardless of the Sellers of assets totaling at least $10 million. In the event circumstances giving rise to 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 Feetermination.

Break-Up Fee. (a) In the event that (ai) this Agreement terminates is terminated by the Purchaser Parties pursuant to Section 4.4(e) by Purchaser or pursuant to Section 4.4(h13.1(a), 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) this Agreement is terminated by the Alternative Sale Purchaser Parties pursuant to Section 13.1(c) and such termination is due to any breach or failure contemplated by Section 13.1(c) which initially occurs on or prior to the Milestone Date, the Company and the Principal Shareholders shall, on a joint and several basis, pay a break-up fee of $2,000,000 (the “Category 1 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 effectivenessup Fee”) 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 date that is the other hand, will be deemed to have fully released and discharged each other from any Liability resulting from tenth (10th) Business Day after the termination of this Agreement by the Purchaser Parties in the following manner: (A) up to $1,000,000 of the Category 1 Break-up Fee shall be paid to the Parent for payment of costs and neither Sellers expenses incurred by the Parent and its Affiliates in connection with this Agreement and the transactions contemplated hereby as determined by a majority of the independent directors of the Parent, and (B) an amount equal to the difference between the Category 1 Break-up Fee and the amount determined pursuant to the foregoing sub-clause (A) shall be paid to the Parent Class B Shareholder. Parent and Parent Class B Shareholder shall jointly notify the Company in writing the respective amount required to be paid to pursuant to the foregoing sub-clause (A) and (B) no later than three (3) Business Days prior to the date of the payment of such amounts. (b) In the event that this Agreement is terminated by the Purchaser Parties pursuant to Section 13.1(c) and such termination is due to any breach or failure contemplated by Section 13.1(c) which initially occurs after the Milestone Date, the Company and the Principal Shareholders shall, on a joint and several basis, pay a break-up fee of $1,000,000 (the “Category 2 Break-up Fee”, together with the Category 1 Break-up Fee, the “Break-up Fees” and each, the “Break-up Fee”) on the date that is the tenth (10th) Business Day after termination of this Agreement by the Purchaser Parties in the following manner (A) up to $1,000,000 of the Category 2 Break-up Fee shall be paid to the Parent for payment of costs and expenses incurred by the Parent and its Affiliates in connection with this Agreement and the transactions contemplated hereby as determined by a majority of the independent directors of the Parent, and (B) to the extent the Category 2 Break-up Fee exceeds the amount determined pursuant to the foregoing sub-clause (A), such excess shall be paid to the Parent Class B Shareholder. Parent and Parent Class B Shareholder shall jointly notify the Company in writing the respective amount required to be paid to pursuant to the foregoing sub-clause (A) and (B) no later than three (3) Business Days prior to the date of the payment of such amount. (c) The parties acknowledge and agree that (i) in no event shall the Company Group and the Principal Shareholders be required to pay any Break-up Fee on more than one occasion, (ii) the Break-up Fee is a fair and reasonable estimate of the actual damages suffered by the non-breaching party, which amount would otherwise be impossible to calculate with precision, (iii) the Break-up Fee constitutes liquidated damages hereunder and is not intended to be a penalty, and (iv) the Break-up Fee shall be the sole and exclusive remedy available to the Purchaser Parties against the Company and the Principal Shareholders and any of their respective representatives and Affiliates, on the one hand, and Parent and Purchaser and or any of their respective representatives former, current, or future stockholders, partners, members, or Representatives upon such termination of this Agreement by the Purchaser Parties and upon payment of any Break-up Fee, none of the Company and the Principal Shareholders or any of their respective Affiliates, on the other handor any of their respective former, nor any other Person will current, or future stockholders, partners, members, or Representatives, shall have any other remedy further liability or cause of action under or obligation relating to or arising out of this Agreement or any applicable LawAdditional Agreements, including for reimbursement the breach of expenses. The “Alternative Sale Break-Up Fee Percentage” shall equal any representation, warranty, covenant, or agreement in this Agreement (whether a willful breach or otherwise); provided, however, that 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 limitations set forth above. Sellers will in this Section 13.2(c)(iv) shall not qualify apply to the liabilities arising from any bid to participate in Fraud Claim against 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 Feebreaching party.

Break-Up Fee. In If any of the event following events occur, then the Break Up Fee shall be paid to Buyer, as set forth herein: (A) If (i) either the Seller or the Shareholder breaches Section 13.1 and, the Seller or the Shareholder signs a letter of intent or other agreement within such period that relates to the acquisition of a material portion of the Seller or its capital stock, assets or business, in whole or in substantial part, whether directly or indirectly, through purchase, merger, consolidation or otherwise (a) this Agreement terminates pursuant to Section 4.4(e) by Purchaser other than sales of inventory or pursuant to Section 4.4(himmaterial portions of the Seller's assets in the ordinary course), and (b) a Competing Transaction such transaction is ultimately 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 Shareholder Bankruptcy Court authorizes a sale of the Acquired Assets and Liabilities to a third party that is not owned by, controlled by or under common control with Buyer or its officers, directors or shareholders, which sale may be due to such third party making a higher or better offer than Buyer's offer (a sale to an entity other than Buyer is referred to as an "ALTERNATIVE TRANSACTION"); then, immediately upon the closing of an Alternative Sale Break-Transaction, the Seller will pay to Buyer the sum of two hundred thousand dollars ($200,000.00), which amount is inclusive of any (a) fees and expenses incurred by Buyer in connection with the Acquisition, (b) the preparation and negotiation of this Agreement and related documents, and (c) legal costs and fees incurred by Buyer in connection with the collection of these amounts (the "BREAK UP Fee."). This Break Up Fee Percentage will be due and payable within fifteen (as defined below). The Break-15) days of the closing of the Alternative Transaction. (B) This Break Up Fee shall will serve as the exclusive remedy to Buyer under this Agreement for the occurrence of any of the events set forth in this Section 13.2. If a Break Up Fee in the amount of $200,000 is required to be paid to Buyer hereunder, and in cash concurrently accordance 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 other provisions of this Agreement, and Seller or Shareholder have paid to Buyer Buyer's Reimbursed Costs, then the amount of the Break Up Fee to be paid to Buyer shall be paid from decreased by the first proceeds amount of such Competing Transaction the Buyer's Reimbursed Costs already paid. Shareholder and from each succeeding Competing Transaction prior Seller agree to be jointly and severally liable for the payment of any other claims including claims secured by Break Up Fee required to be paid to Buyer under this Section 13.2, it being understood that if 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-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) not approved by the Shareholder Bankruptcy Court in connection with Court, Seller shall be solely liable for 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-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. In the event that (a) this Agreement terminates pursuant The Purchaser shall be entitled to Section 4.4(e) by Purchaser or pursuant to Section 4.4(h), and (b) immediate payment of a Competing Transaction is consummated, then Sellers will pay to Purchaser in cash an amount compensatory termination fee (the “Break-Up up Fee”) in cash in an amount equal to the Cash Amount multiplied by the greater of $2,800,000, if: (a) (i) 3.5%; the Bankruptcy Court does not issue the Sale Approval Order within 45 days after the date of the Preliminary Hearing or approves a higher and better bid than that submitted by the Purchaser, (ii) the Alternative Closing of a Sale Break-Up Fee Percentage to the Successful Bidder (as defined below). The Break-Up Fee shall be paid but not the Purchaser) has occurred and (iii) the Purchaser is not then in cash concurrently with material breach of this Agreement; (b) the consummation (which, in the case of Bankruptcy Court confirms a plan of reorganization for the Sellers, which plan transfers any of the Purchased Assets to a person other than the Purchaser and such plan of reorganization is consummated and the Purchaser is not then in material breach of this Agreement; (c) the Purchaser is not in material breach of this Agreement and the Sellers (i) withdraw the motion for Bankruptcy Court approval of the Sale and (ii) subsequently liquidate or liquidationotherwise dispose of the Purchased Assets, in one or a series of transactions; or (d) the Sellers withdraw the motion for Bankruptcy Approval of the Sale and an Alternative Transaction is pursued. Until paid, the Break-up Fee shall be allowed by the effectivenessBankruptcy Court as an administrative claim pursuant to Section 503(b)(1)(A) of the first Competing Transaction to occur simultaneously Bankruptcy Code with priority over any or following all other administrative expenses in 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 Chapter 11 Cases 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”)kind specified in Sections 503(b) until the Break-Up Fee is paid in full. The Break-Up Fee will constitute, pursuant to sections 364 and 503 or 507(b) of the Bankruptcy Code, or if the Chapter 11 Cases are converted to Chapter 7 cases. This provision shall be 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 paidrequirement of, 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 handapproved by, 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 incorporated 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 FeeOrder.