Exhibit 10.10
SECOND SUPPLEMENT TO
FOURTH AMENDED AND RESTATED OPERATING AGREEMENT OF
DEERFIELD & COMPANY LLC
This SECOND 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, the
"Operating Agreement"), is made as of August 16, 2004 by the Board of Directors
of Deerfield & Company LLC (the "Company").
RECITALS
As of the date hereof, pursuant to the Contribution and Assignment
Agreement, dated as of the date hereof, by and between Triarc Companies, Inc.
("Triarc") and Triarc Deerfield Holdings, LLC ("TDH"), Triarc has Transferred
(as defined in the Operating Agreement), by contribution, its 0.1% Class A
Interest of the Company (the "Transferred Interests") to TDH. The Board of
Directors of the Company has determined that the proposed Transfer by Triarc to
TDH, alone or together with other Transfers, will not cause the Company to be
treated as a publicly traded partnership taxable as a corporation for United
States federal income tax purposes. The Board of Directors of the Company wish
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 Transfer.
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.
(c) Counterparts. This Supplement may be executed in any number of
counterparts, and by the different parties hereto in separate counterparts, each
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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 Second Supplement to Operating Agreement]
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EXHIBIT A
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CAPITAL PERCENTAGE
CONTRIBUTION INTEREST
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CLASS A INTERESTS:
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Class A-1 Interests:
Triarc Deerfield Holdings, LLC $5,815,695 56.653%
Class A-2 Interests:
Sachs Capital Management LLC $439,132 23.839%
Deerfield Partners Fund III LLC $164,699 3.117%
CLASS B INTERESTS:
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Capital Interests:
Triarc Deerfield Holdings, LLC $80,000 .447%
Profits Only Interests:
Triarc Deerfield Holdings, LLC $.00 6.500%
Xxxxx Xxxxxxx $.00 8.500%
Xxxxxxxx Xxxxxxx $.00 .944%
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