EXHIBIT 10.8
Deerfield & Company LLC
6250 North River Road, 8th Floor
Rosemont, IL 60018
August 8, 2007
Deerfield Triarc Capital Corp.
DFR Merger Company, LLC
c/o Peter Rothschild
Daroth Capital Advisors LLC
750 Third Avenue, 22nd Floor
New York, NY 10017
Triarc Companies, Inc. (as the Sellers' Representative)
280 Park Avenue
New York, NY 10017
Attention: General Counsel
Re: Side Letter Regarding the Agreement and Plan of Merger
and Registration Rights Agreement
Ladies and Gentlemen:
Reference is made to (i) the Agreement and Plan of Merger, dated as of
April 19, 2007 (as amended, supplemented or otherwise modified from time to
time, the "Merger Agreement"), by and among Deerfield Triarc Capital Corp., a
Maryland corporation (the "Buyer"), DFR Merger Company, LLC, an Illinois limited
liability company ("Buyer Sub"), Deerfield & Company LLC, an Illinois limited
liability company (the "Company"), and solely for the purposes set forth
therein, Triarc Companies, Inc., a Delaware corporation (in such capacity, the
"Sellers' Representative"); and (ii) the Registration Rights Agreement, dated as
of April 19, 2007 (as amended, supplemented or otherwise modified from time to
time, the "Registration Rights Agreement") among the Buyer, Triarc Deerfield
Holdings, LLC, a Delaware limited liability company ("TDH"), and the Persons who
may become parties thereto from time to time in accordance with the terms
thereof (collectively, the "Stockholders") and the Sellers' Representative. This
Side Letter is being entered into pursuant to Section 11.12 of the Merger
Agreement and Section 8(d) of the Registration Rights Agreement. Capitalized
terms used and not otherwise defined herein shall have the meanings assigned to
such terms in the Merger Agreement.
The parties acknowledge and agree that Section 11.4(a) did not correctly
express the intent of the parties. Accordingly, the parties hereby acknowledge
and agree that for all purposes under the Merger Agreement the reference in
Section 11.4(a) to "Section 11.2(a)(iii)" should be replaced with "Section
11.2(a)(v)".
In addition, the following provisions of the Merger Agreement and the
Registration Rights Agreement are waived as provided herein:
1. The Buyer, the Company and the Sellers' Representative hereby waive
compliance with the provisions of Section 6.7(a) of the Merger Agreement that
require each of the Buyer and the Company to make, or cause to be made, the
appropriate filings of the Notification and Report Forms pursuant to the HSR Act
with respect to the transactions contemplated by the Merger Agreement within 10
Business Days of April 19, 2007. The Buyer, the Company and the Sellers'
Representative acknowledge that such filings were made on May 25, 2007.
2. The Company and the Sellers' Representative hereby waive compliance with
the provisions of Section 6.9(a) of the Merger Agreement that require the Buyer
to prepare and file with the SEC the preliminary Proxy Statement not more than
30 days after April 19, 2007. The Company and the Sellers' Representative
acknowledge that the Buyer filed the preliminary Proxy Statement on May 25,
2007.
3. The Company hereby waives its right to terminate the Merger Agreement
pursuant to Section 10.1(d) of the Merger Agreement. The Company acknowledges
that the Buyer obtained an executed Debt Commitment Letter on May 24, 2007.
4. TDH and the Sellers' Representative hereby waive compliance with the
provisions of Section 2(a) of the Registration Rights Agreement that require the
Buyer to prepare and file or cause to be prepared and filed with the SEC the
Shelf Registration Statement (as defined in the Registration Rights Agreement)
not later than 30 days after April 19, 2007; provided, that the Buyer shall file
the Shelf Registration Statement at any time on or prior to the Closing Date
(but prior to the Closing) pursuant to the automatic shelf registration
statement provisions set forth in General Instruction I.D. of Form S-3.
Except to the extent specifically modified herein, the parties agree that
the provisions of the Merger Agreement and the Registration Rights Agreement
shall remain unmodified. This Side Letter, the Merger Agreement, the
Registration Rights Agreement and the other agreements and documents referred to
therein constitute the entire agreement among the parties with respect to the
subject matter hereof and thereof and supersede all prior agreements and
understandings, both oral and written, among the parties with respect to the
subject matter hereof and thereof.
This Side Letter may be executed by the parties hereto in separate
counterparts, each of which when so executed and delivered shall be an original,
but all such counterparts together shall constitute one and the same instrument.
Each counterpart may consist of a number of copies hereof each signed by less
than all, but together signed by all, of the parties hereto. The delivery of an
executed counterpart of this Side Letter by facsimile or electronic transmission
shall be deemed to be valid delivery thereof.
If you are in agreement with the foregoing, please execute and deliver a
counterpart of this Side Letter as indicated below and return it to us.
Sincerely yours,
DEERFIELD & COMPANY LLC
By: /s/DANIELLE T. VALKNER
--------------------------------------
Name: Danielle T. Valkner
Title: Chief Financial Officer
Accepted and agreed:
DEERFIELD TRIARC CAPITAL CORP.
By: /s/PETER H. ROTHSCHILD
---------------------------------------------
Name: Peter H. Rothschild
Title: Interim Chairman
DFR MERGER COMPANY, LLC
By: DEERFIELD TRIARC CAPITAL CORP.,
its sole member
By: /s/PETER H. ROTHSCHILD
-----------------------------------------------
Name: Peter H. Rothschild
Title: Interim Chairman
TRIARC COMPANIES, INC.,
as Sellers' Representative
By: /s/FRANCIS T. MCCARRON
--------------------------------------
Name: Francis T. McCarron
Title: Executive Vice President
and Chief Financial Officer