Exhibit 10.11
THIRD SUPPLEMENT TO
FOURTH AMENDED AND RESTATED OPERATING AGREEMENT OF
DEERFIELD & COMPANY LLC
This THIRD SUPPLEMENT (this "Supplement") to the Fourth Amended and
Restated Operating Agreement of Deerfield & Company LLC, dated as of June 26,
2004 (as supplemented by the First Supplement, dated as of July 22, 2004, and
the Second Supplement, dated as of August 16, 2004, the "Operating Agreement"),
is made as of August 20, 2004 by the Board of Directors of Deerfield & Company
LLC (the "Company").
RECITALS
As of the date hereof, pursuant to Profits-Only Interest Grant
Agreements, each dated as of the date hereof, by and between the Company and
each of Xxxxxxxx Xxxxxxx, Xxxxx Xxxx, Xxxxxxxxx Xxxxx, Xxxxx Xxxxxxxxxx, Xxxx
Xxxxxxxxxxxx, Xxxxxx Xxxxxxxxx, Xxxx Xxxxxxxxx, Xxxx Xxxxxx and Xxxx Xxxxxx, the
Company has granted each such individual Class C Profits Only Interests (as
defined in the Operating Agreement) having a Percentage Interest (as defined in
the Operating Agreement) equal to the percentage set forth opposite such
individual's name on Exhibit A attached hereto. The Board of Directors of the
Company wishes to amend Exhibit A of the Operating Agreement as set forth herein
and as permitted by Section 3.1(a) of the Operating Agreement to reflect such
grants.
AGREEMENT
1. Certain Definitions. Capitalized terms used and not otherwise
defined herein have the meanings assigned to such terms in the Operating
Agreement.
2. Amendment of Exhibit A of the Operating Agreement. Pursuant to
Section 3.1(a) of the Operating Agreement, effective as of the date hereof,
Exhibit A of the Operating Agreement shall hereby be amended and restated in its
entirety as set forth in Exhibit A hereto.
3. Miscellaneous.
(a) Entire Agreement. This Supplement and the Operating Agreement
and the exhibits attached hereto and thereto constitute the entire agreement of
the Members relating to the Company. Except to the extent specifically
supplemented hereby, the provisions of the Operating Agreement shall remain
unmodified, and the Company hereby confirms that the Operating Agreement is in
full force and effect with respect to itself.
(b) Assignment. This Supplement shall be binding upon and inure to
the benefit of and be enforceable by the successors and permissible assigns of
the Company as part of the Operating Agreement in accordance with the terms
thereof.
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(c) Counterparts. This Supplement may be executed in any number of
counterparts, and by the different parties hereto in separate counterparts, each
of which shall be deemed an original for all purposes and all of which together
shall constitute one and the same instrument.
(d) Governing Law. This Supplement, and all claims arising under,
related to, or in connection herewith, shall be governed by and construed in
accordance with the domestic substantive laws of the State of Illinois, without
giving effect to any choice or conflict of law provision or rule that would
cause the application of the domestic substantive laws of any other
jurisdiction.
(e) Disputes. The parties intend that any dispute under this
Supplement shall be treated as if such dispute had arisen under the terms of the
Operating Agreement.
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IN WITNESS WHEREOF, the Company has caused this Supplement to
be executed as of the date set forth above by the Board of Directors of the
Company.
DEERFIELD & COMPANY LLC
By: /s/ XXXXXX XXXXX
--------------------------
Name: Xxxxxx Xxxxx
Title: Director
By: /s/ XXXXX X. MAY
--------------------------
Name: Xxxxx X. May
Title: Director
By: /s/ XXXXXX X. GARDEN
--------------------------
Name: Xxxxxx X. Garden
Title: Director
By: /s/ XXXXXXX X. XXXXX
--------------------------
Name: Xxxxxxx X. Xxxxx
Title: Director
By: /s/ XXXXX X. XXXXXXX
--------------------------
Name: Xxxxx X. Xxxxxxx
Title: Director
[Signature Page to Third Supplement to Operating Agreement]
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EXHIBIT A
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CAPITAL PERCENTAGE
CONTRIBUTION INTEREST
------------ ----------
CLASS A INTERESTS:
-----------------
Class A-1 Interests:
Triarc Deerfield Holdings, LLC $5,815,695 54.756%
Class A-2 Interests:
Sachs Capital Management LLC $439,132 23.040%
Deerfield Partners Fund III LLC $164,699 3.013%
CLASS B INTERESTS:
-----------------
Capital Interests:
Triarc Deerfield Holdings, LLC $80,000 0.432%
Profits Only Interests:
Triarc Deerfield Holdings, LLC $0.00 6.282%
Xxxxx Xxxxxxx $0.00 8.215%
Xxxxxxxx Xxxxxxx $0.00 0.912%
CLASS C PROFITS ONLY INTERESTS:
------------------------------
Xxxxxxxx Xxxxxxx $0.00 1.500%
Xxxxx Xxxx $0.00 0.250%
Xxxxxxxxx Xxxxx $0.00 0.100%
Xxxxx Xxxxxxxxxx $0.00 0.100%
Xxxx Xxxxxxxxxxxx $0.00 0.750%
Xxxxxx Xxxxxxxxx $0.00 0.100%
Xxxx Xxxxxxxxx $0.00 0.100%
Xxxx Xxxxxx $0.00 0.100%
Xxxx Xxxxxx $0.00 0.250%
Xxxxxxxx Xxxxxxx $0.00 0.100%
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