EXHIBIT 10.8
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FIRST AMENDMENT TO PURCHASE AGREEMENT
This First Amendment to the Purchase Agreement (this
"AMENDMENT") is made as of July 22, 2004 by and among Triarc Companies, Inc., a
Delaware corporation (the "PURCHASER"), Sachs Capital Management LLC, a Delaware
limited liability company ("SCM"), Deerfield Partners Fund II LLC, a Delaware
limited liability company ("DPF"), Scott A. Roberts ("ROBERTS"), Marvin Shrear
("SHREAR" and, together with SCM, DPF and Roberts, the "SELLERS") and Gregory H.
Sachs ("SACHS"), in his capacity as the Guarantor and the Sellers'
Representative.
RECITALS
The Purchaser, the Sellers and Sachs are parties to the
Purchase Agreement, dated as of June 26, 2004 (the "PURCHASE AGREEMENT"), which
contemplates a transaction in which the Purchaser will purchase from the
Sellers, and the Sellers will sell to the Purchaser, the Purchased Interests set
forth in Annex B to the Purchase Agreement. The Purchaser, the Sellers and Sachs
wish to amend the Purchase Agreement as set forth herein.
AGREEMENT
In consideration of the foregoing, and the representations,
warranties, covenants and conditions set forth or referred to below, the parties
hereto, intending to be legally bound, hereby agree as follows:
1. CERTAIN DEFINITIONS. Capitalized terms used and not
otherwise defined herein have the meanings assigned to such terms in the
Purchase Agreement.
2. AMENDMENT TO SECTION 3.11 OF THE PURCHASE AGREEMENT. The
Purchaser, the Sellers and Sachs hereby agree that, effective as of the date
hereof, Section 3.11 of the Purchase Agreement is hereby amended by deleting the
phrase "and except as set forth in Section 3.11 of the Disclosure Letter" from
the second sentence thereof.
3. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER.
(a) The Purchaser represents and warrants to the Sellers
that: (i) the Purchaser has full corporate right, authority and power to enter
into this Amendment and to carry out the transactions contemplated hereby; (ii)
the execution, delivery and performance by the Purchaser of this Amendment have
been duly authorized by all necessary action on the part of the Purchaser, and
no other action on the part of the Purchaser is required in connection
therewith; and (iii) this Amendment has been duly executed and delivered by the
Purchaser, and assuming the due and valid authorization, execution and delivery
hereof by the other parties hereto, constitutes a valid and binding obligation
of the Purchaser, enforceable against the Purchaser in accordance with its
terms, except as (x) limited by applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance and other similar laws of
general application affecting enforcement of creditors' rights generally and (y)
the availability of the remedy
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of specific performance or injunctive or other forms of equitable relief may be
subject to equitable defenses and would be subject to the discretion of the
court before which any proceeding therefor may be brought.
(b) The parties agree that the breach of any of the
representations set forth in paragraph 3(a) shall be subject to the terms of the
Purchase Agreement as if such representations were included in the Purchase
Agreement, including, without limitation, the indemnification obligations and
procedures set forth in Article XI of the Purchase Agreement.
4. REPRESENTATIONS AND WARRANTIES OF THE SELLERS AND SACHS.
(a) The Sellers and Sachs severally but not jointly
represent and warrant to the Purchaser that: (i) such Seller or Sachs, as the
case may be, have full right, authority, power and legal capacity to enter into
this Amendment and to carry out the transactions contemplated hereby; (ii) the
execution, delivery and performance of this Amendment by such Seller or Sachs,
as the case may be, have been duly authorized by all necessary action on the
part of such Seller or Sachs, as the case may be, and no other action on the
part of such Seller or Sachs, as the case may be, is required in connection
therewith; and (iii) this Amendment has been duly executed and delivered by such
Seller or Sachs, as the case may be, and assuming the due and valid
authorization, execution and delivery hereof by the other parties hereto,
constitutes a valid and binding obligation of such Seller or Sachs, as the case
may be, enforceable against such Seller or Sachs, as the case may be, in
accordance with its terms, except as (x) limited by applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance and other similar
laws of general application affecting enforcement of creditors' rights generally
and (y) the availability of the remedy of specific performance or injunctive or
other forms of equitable relief may be subject to equitable defenses and would
be subject to the discretion of the court before which any proceeding therefor
may be brought.
(b) The parties agree that the breach of any of the
representations set forth in paragraph 4(a) shall be deemed Seller Basket
Exclusions and shall be subject to the terms of the Purchase Agreement as if
such representations were included in the Purchase Agreement, including, without
limitation, the indemnification obligations and procedures set forth in Article
XI of the Purchase Agreement.
5. MISCELLANEOUS.
(a) ENTIRE AGREEMENT. This Amendment, the Purchase
Agreement and the other agreements, certificates and other documents referred to
herein and therein set forth the entire agreement and understanding between the
parties relating to the subject matter hereof and thereof. Except to the extent
specifically amended hereby, the provisions of the Purchase Agreement shall
remain unmodified, and the Purchase Agreement is hereby confirmed as being in
full force and effect.
(b) ASSIGNMENT. This Amendment shall be binding upon and
inure to the benefit of and be enforceable by the successors and permissible
assigns of the
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Purchaser and the Sellers as part of the Purchase Agreement in accordance with
the terms thereof.
(c) COUNTERPARTS. This Amendment 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 Amendment, 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 New York,
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 Amendment shall be treated as if such dispute had arisen under the terms of
the Purchase Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed as of the date set forth above by their duly authorized
representatives.
TRIARC COMPANIES, INC.
By: /s/ Edward P. Garden
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Name: Edward P. Garden
Title: Executive Vice President
SACHS CAPITAL MANAGEMENT LLC
By: *
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Name:
Title:
DEERFIELD PARTNERS FUND II LLC
By: *
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Name:
Title:
*
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Scott A. Roberts
*
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Marvin Shrear
/s/ Gregory H. Sachs
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Gregory H. Sachs
* Signed by the Sellers' Representative on behalf of the Sellers
pursuant to Sections 2.1 and 14.4 of the Purchase Agreement.