EXHIBIT 99.5
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STOCK REPURCHASE AGREEMENT
by and among
▇▇▇▇▇▇▇ PURINA COMPANY,
VCS HOLDING COMPANY,
and
INTERSTATE BAKERIES CORPORATION
dated
April 29, 1997
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STOCK REPURCHASE AGREEMENT
THIS STOCK REPURCHASE AGREEMENT ("Repurchase Agreement") is dated as
of April 29, 1997, by and among ▇▇▇▇▇▇▇ PURINA COMPANY, a Missouri corporation
("RPC"), VCS HOLDING COMPANY, a Delaware corporation ("VCS") (RPC and VCS being
collectively referred to as "▇▇▇▇▇▇▇"), and INTERSTATE BAKERIES CORPORATION, a
Delaware corporation ("IBC"). Capitalized terms not defined herein shall have
the meanings set forth in the ▇▇▇▇▇▇▇ and IBC Shareholders Agreement dated July
22, 1995 (the "Agreement"), as modified herein.
WHEREAS, the Agreement related to the acquisition by ▇▇▇▇▇▇▇ of
16,923,077 shares of common stock of IBC (referred to as the "IBC Equity" in
Section 11.13 of the Agreement) pursuant to the acquisition of Continental
Baking Company ("CBC");
WHEREAS, ▇▇▇▇▇▇▇ desires to exercise one of its Demand Registrations
to register a certain number of shares of the IBC Equity (the "Offered Shares")
in conjunction with ▇▇▇▇▇▇▇'▇ offering of between $360,000,000 and $400,000,000
of exchangeable notes (the "Notes"), which will be exchangeable at maturity
three years after issuance for the Offered Shares or cash (the "Notes
Transaction");
WHEREAS, pursuant to the Agreement, IBC has a right of First Offer
with respect to all, but not less than all, of the Offered Shares but has
notified ▇▇▇▇▇▇▇ of its waiver of such right with respect to the Offered Shares
that are transferred in exchange for the Notes; and
WHEREAS, notwithstanding IBC's waiver of its right to acquire all of
the Offered Shares, IBC desires to acquire from ▇▇▇▇▇▇▇, and ▇▇▇▇▇▇▇ desires to
sell to IBC certain of the IBC Equity (not part of the Offered Shares) on the
terms and subject to the conditions as more fully set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto agree as follows.
ARTICLE I
STOCK REPURCHASE OBLIGATION
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Section 1.1 The Stock Repurchase Obligation. Subject to any
restrictions contained in applicable laws, ▇▇▇▇▇▇▇ and IBC hereby agree that in
connection with the closing of
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the Notes Transaction, ▇▇▇▇▇▇▇ shall sell to IBC and IBC shall repurchase from
▇▇▇▇▇▇▇, 1,000,000 shares (the "Repurchase Shares") of the IBC Equity (other
than the Offered Shares) pursuant to the terms and conditions hereof (the
"Repurchase Obligation").
Section 1.2 Purchase Price. The aggregate purchase price (the "Purchase
Price") to be paid for all of the Repurchase Shares shall be (a) 1,000,000
multiplied by the initial price per share of the IBC Equity used to set the
exchange rate for the Notes; (b) such aggregate amount in (a) multiplied by .97;
(c) plus an amount equal to dividends declared on the Repurchase Shares but not
paid prior to the Closing Date.
Section 1.3 Closing of the Purchase. The closing of the purchase of the
Repurchase Shares shall occur at 10:00 a.m. central time at the offices of
Shook, Hardy & Bacon L.L.P., ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇, immediately following the closing of the Notes Transaction (which will
occur in New York City) or at such other place and time as the parties mutually
agree (the "Closing Date"). The parties agree that they shall negotiate in good
faith the rescheduling of the Closing Date (which in no event shall be later
than sixty days after the closing of the Notes Transaction), if necessary to
comply with Regulation M issued pursuant to the Securities Exchange Act of 1934,
as amended. If the Closing Date is more than five days after the closing of the
Notes Transaction, then IBC shall pay to RPC interest on the Purchase Price
equal to the rate of interest then paid by IBC on its principal bank
indebtedness.
Section 1.4 Payment. On the Closing Date, ▇▇▇▇▇▇▇ shall surrender to IBC
its duly endorsed stock certificates representing the Repurchase Shares, free
and clear of all liens and encumbrances whatsoever, and IBC shall pay to ▇▇▇▇▇▇▇
the Purchase Price in immediately available funds by wire transfer to an account
designated in writing by ▇▇▇▇▇▇▇ to IBC. ▇▇▇▇▇▇▇ shall deliver the wire
transfer instructions to IBC at least three business days prior to the Closing
Date.
Section 1.5 Transfer of Title. Transfer of title to the Repurchase
Shares shall be deemed to occur automatically on the Closing Date, subject to
payment by IBC on such date of the Purchase Price.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
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Section 2.1 Representations and Warranties of ▇▇▇▇▇▇▇. ▇▇▇▇▇▇▇ hereby
represents and warrants to IBC as follows:
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(a) ▇▇▇▇▇▇▇ has all requisite legal and corporate power to
execute and deliver this Repurchase Agreement and to carry out and perform
its obligations under the terms of this Repurchase Agreement.
(b) The execution and delivery of this Repurchase Agreement and
the consummation of the transactions herein do not and will not violate any
agreement binding upon ▇▇▇▇▇▇▇; and this Repurchase Agreement is the valid
and binding agreement of ▇▇▇▇▇▇▇, enforceable against ▇▇▇▇▇▇▇ in accordance
with its terms subject to laws of general application relating to
bankruptcy, insolvency, the relief of debtors, general equity principles
and limitations upon rights to indemnity.
(c) ▇▇▇▇▇▇▇ has good and marketable title to at least 1,000,000
shares of the IBC Equity, free and clear of any liens, encumbrances,
restrictions on transfer or rights of others and shall keep such shares
free and clear of any liens, encumbrances, restrictions on transfer or
rights of others.
Section 2.2 Representations and Warranties of IBC. IBC hereby
represents and warrants to ▇▇▇▇▇▇▇ as follows:
(a) IBC has all requisite legal and corporate power to execute
and deliver this Repurchase Agreement and to carry out and perform its
obligations under the terms of this Repurchase Agreement.
(b) The execution and delivery of this Repurchase Agreement, and
the consummation of the transactions herein provided, do not and will not
violate any agreement binding upon IBC, and this Agreement is the valid and
binding agreement of IBC, enforceable against IBC in accordance with its
terms subject to laws of general application relating to bankruptcy,
insolvency, the relief of debtors, general equity principles and
limitations on rights to indemnity.
ARTICLE III
GENERAL PROVISIONS
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Section 3.1 Specific Performance. The parties hereto agree that
irreparable damage would occur in the event any provision of this Repurchase
Agreement was not performed in accordance with the terms hereof and that the
parties shall be entitled to specific performance of the terms hereof, in
addition to any other remedy at law or in equity.
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Section 3.2 Expenses. Except as otherwise provided in this
Repurchase Agreement, each party shall bear its own expenses and costs in
connection with this Repurchase Agreement.
Section 3.3 Amendment. This Repurchase Agreement may not be
modified, amended, altered or supplemented except upon the execution and
delivery of a written agreement executed by the parties hereto.
Section 3.4 Successors and Assigns. No party to this Repurchase
Agreement may assign any of its rights or obligations under this Repurchase
Agreement without the prior written consent of the other parties.
Section 3.5 Notices. All notices, requests, claims, demands and
other communications hereunder, unless this Repurchase Agreement expressly
provides otherwise, shall be in writing and shall be given (and shall be deemed
to have been duly given upon receipt) by delivery in person, by facsimile or by
registered or certified mail (postage prepaid, return receipt requested), to the
other party to the addresses set forth in Section 11.5 of the Agreement.
Section 3.6 Governing Law. This Repurchase Agreement shall be
governed by and construed in accordance with the laws of Missouri without giving
effect to the provisions thereof relating to conflicts of laws.
Section 3.7 Termination. This Repurchase Agreement and the rights
and obligations hereunder shall terminate (if not consummated) upon the written
notification by ▇▇▇▇▇▇▇ of its decision not to consummate the Notes Transaction
or upon the mutual agreement of the parties. In addition, IBC shall have the
right to terminate this Repurchase Agreement if the Notes Transaction has not
been consummated by August 15, 1997. No such termination shall relieve any
party from liability for any breach of this Repurchase Agreement.
Section 3.8 Severability. The provisions of this Repurchase
Agreement shall be deemed severable and the invalidity or unenforceability of
any provision shall not affect the validity or enforceability of the other
provisions hereof. If any provision of this Repurchase Agreement, or the
application thereof to any person or entity or any circumstance, is invalid or
unenforceable, (i) a suitable and equitable provision shall be substituted
therefor in order to carry out, so far as may be valid and enforceable, the
intent and purpose of such invalid and unenforceable provision and (ii) the
remainder of this Repurchase Agreement and the application of such provision to
other persons, entities or circumstances shall not be affected by such
invalidity or unenforceability, nor shall such invalidity or unenforceability
affect the validity or enforceability of such provision, or the application
thereof, in any other jurisdiction.
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Section 3.9 Entire Agreement. This Repurchase Agreement and the
other documents delivered pursuant hereto and thereto, constitute the entire
agreement among the parties hereto with respect to the subject matter hereof and
supersede all other prior agreements and understandings, both written and oral,
among the parties with respect to the subject matter hereof.
Section 3.10 Descriptive Headings. The descriptive headings herein
are inserted for convenience of reference only and are not intended to be part
of or to affect the meaning or interpretation of this Repurchase Agreement.
Section 3.11 Counterparts. This Repurchase Agreement may be
executed in two or more counterparts, each of which shall be deemed to be an
original, but all of which shall constitute one and the same agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Repurchase
Agreement as of the day and year first above written.
▇▇▇▇▇▇▇ PURINA COMPANY
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President and Chief Financial Officer
VCS HOLDING COMPANY
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Secretary
INTERSTATE BAKERIES CORPORATION
By: /s/ Ray ▇▇▇▇▇ ▇▇▇▇▇▇
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Name: Ray ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President, Corporate Secretary and
General Counsel
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