Exhibit 10.2
EXECUTION COPY
EQUITY CONTRIBUTION AGREEMENT
Equity Contribution
Agreement, dated as of September 26, 2008 (this “ Equity
Contribution Agreement ”), between Ripplewood Partners
II, L.P., a Delaware limited partnership (the “
Contributor ”), and Interstate Bakeries Corporation, a
Delaware corporation (the “ Company
”). Any terms used but not defined herein have the
meaning assigned to those terms in the Investment Agreement (as
defined below).
1.
Equity Contribution Agreement . To induce the
Company to enter into an Investment Agreement, dated as of
September 26, 2008 (including the exhibits attached thereto and as
amended, restated, supplemented or otherwise modified from time to
time in accordance with its terms, the “ Investment
Agreement ”), by and between IBC Investors I, LLC, a
Delaware corporation (“ Parent ”), and the
Company, pursuant to which Parent agrees to, among other things,
purchase shares of New Common Stock and New Convertible Debt, and
the Company agrees to issue Series A Warrants to Parent, in each
case on the terms and subject to the conditions set forth or
referred to in the Investment Agreement, the Contributor hereby
unconditionally and irrevocably commits to the Company, on the
terms and conditions set forth or referred to herein, to make an
equity contribution to Parent in cash to the extent of the payment
obligations due from Parent from time to time under the Investment
Agreement, including any Parent obligation to pay damages for a
breach by Parent of the Investment Agreement (the “
Obligations ”); provided , however ,
that the maximum amount payable by the Contributor under this
Equity Contribution Agreement shall in no event exceed $130,000,000
(the “ Cap ”; the Obligations, as limited by the
Cap, the “ Covered Obligations ”), it being
understood that the Company will not seek to enforce this Equity
Contribution Agreement without giving effect to the
Cap. It is understood and agreed that, in lieu of
requiring the Contributor to make an equity contribution to Parent
in cash, at the election of the Company, the Contributor will be
required to pay directly to the Company the full amount of the
Covered Obligations that is due and payable hereunder, in which
event such payments shall be credited and applied towards the
Covered Obligations and the obligations of the Contributor under
this Equity Contribution Agreement (and of Parent under the
Investment Agreement) shall be deemed satisfied to the extent of
such payments.
2.
Nature of Equity Contribution Agreement . This
Equity Contribution Agreement is an unconditional promise to
contribute or to pay up to a specified amount on the terms and
conditions set forth or referred to herein and is not a guarantee
of payment or collection. In the event that any payment
to the Company in respect of the Obligations is rescinded or must
otherwise be returned for any reason whatsoever, the Contributor
shall remain liable hereunder with respect to the Covered
Obligations as if such payment had not been made; provided ,
however , that the aggregate payments hereunder by the
Contributor to all persons shall not in any event exceed the
Cap.
3.
Changes in Obligations, Certain Waivers . The
Contributor agrees that the Company may at any time and from time
to time, without notice to or further consent of the
Contributor, extend the time of payment of any
of the Obligations, and may also make any agreement with Parent for
the extension, renewal, payment, compromise, discharge or release
thereof, in whole or in part, or for any modification of the terms
thereof or of any agreement between the Company and Parent, without
in any way impairing or affecting the Contributor’s
obligations under this Equity Contribution
Agreement. The Contributor agrees that the obligations
of the Contributor hereunder shall not be released or discharged,
in whole or in part, or otherwise affected by (a) the failure of
the Company to assert any claim or demand or to enforce any right
or remedy against Parent or any other person interested in the
transactions contemplated by the Investment Agreement; (b) any
change in the time, place or manner of payment of any of the
Obligations or any rescission, waiver, compromise, consolidation or
other amendment or modification of any of the terms or provisions
of the Investment Agreement or any other agreement evidencing,
securing or otherwise executed in connection with any of the
Obligations (including the Contributor’s commitment letter to
Parent); (c) any change in the corporate existence, structure or
ownership of Parent; (d) any insolvency, bankruptcy, reorganization
or other similar proceeding for Parent; (e) the existence of any
claim, set-off, right of recoupment or other right that the
Contributor may have at any time against Parent or the Company,
whether in connection with the Obligations or otherwise; (f) the
adequacy of any other means the Company may have of obtaining
payment of any of the Obligations; or (g) any assignment by Parent
to any other person of its obligations under the Investment
Agreement. To the fullest extent permitted by law, the
Contributor hereby expressly waives any and all rights or defenses
arising by reason of any law which would otherwise require any
election of remedies by the Company. The Contributor
waives promptness, diligence, notice of the acceptance of this
Equity Contribution Agreement and of the Obligations, presentment,
demand for payment, notice of non-performance, default, dishonor
and protest, notice of any Obligation incurred and all other
notices of any kind (except for notices to be provided to Parent
and its counsel in accordance with the Investment Agreement), all
defenses that may be available by virtue of any valuation, stay,
moratorium law or other similar law now or hereafter in effect, any
right to require the marshalling of assets of Parent or any other
person interested in the transactions contemplated by the
Investment Agreement, and all suretyship defenses generally (other
than fraud or willful misconduct by the Company or any of its
Affiliates, defenses to the payment of the Obligations that are
available to Parent under the Investment Agreement (which shall be
available to the Contributor under this Equity Contribution
Agreement) or breach by the Company of this Equity Contribution
Agreement). The Contributor acknowledges that it will
receive substantial direct and indirect benefits from the
transactions contemplated by the Investment Agreement and that the
waivers set forth in this Equity Contribution Agreement are
knowingly made in contemplation of such benefits.
The Company hereby
covenants and agrees that it shall not institute, and shall cause
its Affiliates not to institute, any proceeding or bring any other
claim arising under, or in connection with, the Investment
Agreement or the transactions contemplated thereby, against any
former, current or future director, officer, employee, agent,
advisor, attorney, representative, affiliate, general or limited
partner, securityholder, member, manager, trustee or controlling
person of the Contributor (or any of their successors or assigns)
or any affiliate thereof, or against any former, current or future
director, officer, employee, agent, advisor, attorney,
representative, affiliate, general or limited partner,
securityholder, member, manager, trustee or controlling person of
any of the foregoing (or any of their successors or assigns) or any
affiliate thereof. The Contributor hereby
unconditionally and irrevocably agrees not to exercise any
rights that it may now have or hereafter
acquire against Parent that arise from the existence, payment,
performance, or enforcement of the Contributor’s Covered
Obligations under or in respect of this Equity Contribution
Agreement or any other agreement in connection therewith, including
any right of subrogation, reimbursement, exoneration, contribution
or indemnification and any right to participate in any claim or
remedy of the Company against Parent, whether or not such claim,
remedy or right arises in equity or under contract, statute or
common law, including the right to take or receive from Parent,
directly or indirectly, in cash or other property or by set-off or
right of recoupment or in any other manner, payment or security on
account of such claim, remedy or right, unless and until all of the
Covered Obligations shall have been satisfied in
full. If any amount shall be paid to the Contributor in
violation of the immediately preceding sentence at any time prior
to the satisfaction in full of the Covered Obligations, such amount
shall be received and held in trust for the benefit of the Company,
shall be segregated from other property and funds of the
Contributor and shall forthwith be paid or delivered to the Company
in the same form as so received (with any necessary endorsement or
a
