Exhibit 10.7


 


EXECUTION COPY


 


ED&F MAN HOLDINGS LIMITED


Cottons Centre


Hay’s Lane


London SE1 2QE


England


 


May 26, 2009


 


Shermen WSC Acquisition Corp.,


Terminal Merger Sub LLC and


Feed Merger Sub LLC


c/o Shermen WSC Acquisition Corp.

230 Park Avenue

Suite 1000

New York, NY 10169

Attention:  Chief Executive Officer

Facsimile:  (212) 332-2475


 


Westway Holdings Corporation,


Westway Terminal Company Inc. and


Westway Feed Products, Inc.


Cottons Centre


Hay’s Lane


London SE1 2QE


England


Attention:
Philip Howell


Facsimile: +44
207 089 8112


 


Ladies and Gentlemen:


 


Reference is made to the Transaction Agreement, dated as of November 25,
2008, as amended and restated as of May 1, 2009 (as so amended and
restated, the “Transaction Agreement”),
by and among Shermen WSC Acquisition Corp., Terminal Merger Sub LLC, Feed Merger Sub LLC, ED&F Man
Holdings Limited, Westway Holdings Corporation, Westway Terminal Company Inc.
and Westway Feed Products, Inc.  Defined terms used herein and not otherwise
defined herein have the meaning ascribed to them in the Transaction
Agreement.  The undersigned hereby agree
as follows:


 


1.             Estimated
Closing Statements.


 


Pursuant to Section 2.9(b)(i) and
Section 3.2(b)(i) of the Transaction Agreement, ED&F is required
to deliver the Estimated Merger Closing Statement and the Estimated


 

















 


Stock Sale Closing Statement, respectively,
to Parent at least ten days prior to the Closing Date (the “Ten Day
Requirement”).  Notwithstanding Section 2.9(b)(i) and
Section 3.2(b)(i) of the Transaction Agreement, the Ten Day
Requirement will be satisfied, and ED&F will be deemed to have complied in
all respects with the Ten Day Requirement, so long as it delivers the Estimated
Merger Closing Statement and the Estimated Stock Sale Closing Statement to
Parent at least five days prior to the Closing Date.


 


2.             Purchases of
Parent Common Stock by Parent.


 


Section 7.2
of the Transaction Agreement among other things restricts the ability of Parent
to undertake certain actions prior to the Closing without the consent or approval
of ED&F.  Pursuant to Section 7.2
of the Transaction Agreement, ED&F hereby consents to and approves of the
purchase by Parent of up to 2,514,369 shares of Parent Common Stock in
privately negotiated transactions at a purchase price per share not to exceed
$6.00, which purchases shall be consummated contingent upon the Closing and the
purchase price for which shall be paid either on the Closing Date or within two
Business Days after the Closing (the “Repurchases”).  In addition, Holdings agrees that, upon
execution and delivery of the Stockholder’s Agreement, it will be deemed to
have consented to the consummation of the Repurchases as required under Section 3.1(j) of
the Stockholders’ Agreement.


 


3.             Amendment to Certain Definitions.


 


The definition
of “Common Stock Merger Consideration” in the Transaction Agreement is hereby
amended and restated in its entirety as follows:


 


“Common Stock Merger Consideration” means
24,323,614 shares of Parent Common Stock; provided, however, that if, upon the
issuance of such Parent Common Stock at the Closing and taking into account (a) any
shares of Parent Common Stock converted into cash from the Trust Account
pursuant to Parent’s amended and restated certificate of incorporation, (b) any
shares of Parent Common Stock which Parent agreed to repurchase contingent upon
the Closing with the consent of ED&F, (c) any shares forfeited or
returned or to be forfeited or returned to the Company for cancellation by
Parent Founder in connection with the Closing pursuant to an agreement among
the parties hereto and Parent Founder, dated as of May 26, 2009, and (d) any
shares of Parent Common Stock owned by any ED&F Party immediately prior to
the Closing, the ED&F Parties and their Affiliates would beneficially own
more than 49.5% of the issued and outstanding shares of Parent Common Stock,
such number of shares of Parent Common Stock shall be reduced to that number of
shares that would result in the ED&F Parties and their Affiliates upon the


 

















 


Closing beneficially owning 49.5% of the issued and outstanding shares
of Parent Common Stock. For the avoidance of doubt, for purposes of this
definition, “Affiliates” of the ED&F Parties shall not include the Employee
Trust or any Designated Employee.


 


4.             Certain
Employees.


 


Pursuant to Section 7.8(p) of
the Transaction Agreement, ED&F is required to take all actions necessary
in accordance with all applicable Law to provide that the employees listed in Section 7.8(p) of
the Disclosure Schedule cease to be employees of any Transferred Companies
prior to the Effective Time (the “Employee Transfer Requirement”).  Notwithstanding Section 7.8(p) of
the Transaction Agreement, the Employee Transfer Requirement will be satisfied,
and ED&F will be deemed to have complied in all respects with the Employee
Transfer Requirement, with respect to the employees listed in Annex A to this
letter agreement (the “Covered Employees”), so long as it takes all
actions necessary in accordance with all applicable Law to provide that the
Covered Employees cease to be employees of any Transferred Companies as soon as
practicable after ED&F’s new Canadian subsidiary has in place the payroll
and other services necessary to employ the Covered Employees (which may be
after the Effective Time).


 


5.             Guarantee, Indemnity and Letter
Agreement.


 


At the Closing, Parent shall execute and deliver to ED&F (a) the
guarantee in favor of Forth Ports plc in the form attached as Annex B to this
letter agreement, (b) the deed of indemnity between ED&F and Parent in
the form attached as Annex C to this letter agreement, and (c) the letter
agreement between ED&F Man Treasury Management plc and Westway Group, Inc.
in the form attached as Annex D to this letter agreement, and Parent’s
execution and delivery of such guarantee, deed of indemnity and letter
agreement will be a condition to the obligations of the ED&F Parties to
consummate the transactions contemplated by the Transaction Agreement.


 


6.             Delivery of
Certificates Representing Capital Stock


 


Pursuant to Section 4.2(a)(i) of
the Transaction Agreement, ED&F is required to deliver or cause to be
delivered to Parent and the Merger Subs certificates representing (or similar
evidence of ownership of) the shares of capital stock (or other ownership
interests) of the Purchased Companies, duly endorsed in blank or accompanied by
powers duly executed in blank and any necessary Foreign Transfer Agreements
(the “Share Certificate Requirement”). 
Notwithstanding Section 4.2(a)(i) of the Transaction
Agreement, the Share Certificate Requirement will be satisfied, and ED&F
will be deemed to have complied in all respects with the Share Certificate
Requirement with respect to each Purchased Company listed on Annex E to this
Letter Agreement (“Non-Certificate Companies”), so long as it delivers
to Parent and the Merger Subs copies or,


 

















 


to the extent available, originals of those
documents listed on Annex E opposite such Purchased Company’s name.


 


7.             Series A
Preferred Stock.


 


In the event that Parent purchases shares of Parent Common Stock as
described in paragraph 2 above, the number of authorized shares of Series A
Preferred Stock in Section 4.1.1 of the Post-Closing Amended and Restated
Certificate of Incorporation included in Exhibit B to the Transaction
Agreement shall be amended by replacing “30,000,000” with “33,000,000.”


 


8.             Forfeiture of Parent Common
Stock.


 


Parent Founder, by its signature below, hereby agrees to return to
Parent for cancellation at the Closing or, if not then permitted to be released
pursuant to the terms of the IPO Stock Escrow Agreement, agrees to provide as
soon as possible after the date hereof, an irrevocable instruction to the
escrow agent under the IPO Stock Escrow Agreement, in form and substance
acceptable to ED&F, to return to Parent for cancellation upon their release
under the IPO Stock Escrow Agreement, 3,266,608 shares of Parent Common Stock,
of which 1,875,000 shares shall be returned to Parent by the Escrow Agent for
cancellation immediately upon their release pursuant to the Stock Escrow
Agreement in the manner specified in Paragraph 9.  It is the intent of the parties that, upon
the Closing and after giving effect to the transactions contemplated hereby,
the greatest number of shares of common stock of Parent that Parent Founder
will have the right to receive is 1,540,000, of which 1,000,000 shares may be
released to Parent Founder only in accordance with the Stock Escrow
Agreement.  If the returns of the numbers
of shares specified in the first sentence of this Paragraph 8 would not result
in such purpose and intent being given effect, the parties shall adjust such
numbers of shares (and such numbers of shares shall be deemed adjusted) to the
extent necessary to give effect to such purpose and intent.


 


9.             Amendments Relating to the Stock
Escrow Agreement.


 


In connection with the forfeiture of 1,875,000 of the shares of Parent
Common Stock described above in paragraph 8, the parties hereto agree that the
number of shares of Parent Common Stock beneficially owned by Parent Founder
remaining in escrow for release to Parent Founder upon the achievement of
certain milestones described in the Stock Escrow Agreement shall be reduced by
1,875,000 shares.  This reduction in the
number of shares of Parent Common Stock that may be released to Parent Founder
pursuant to the Stock Escrow Agreement shall be effected by causing the Escrow
Agent to deliver to Parent for cancellation the number of shares that would
otherwise have been released to Parent Founder under Section 5(c)(ii) of
the Stock Escrow Agreement, until the number of shares to have been so released
to Parent Founder is reduced to zero, and then by causing the Escrow Agent to
deliver to Parent for cancellation the number of shares that otherwise would
have been released to Parent Founder under Section 5(b)(ii) of the Stock
Escrow Agreement.  Parent, Holdings and
Parent Founder shall cause the


 

















 


Stock Escrow Agreement to be
amended and restated as soon as possible after the Closing, and shall take any
other actions necessary, to give effect to the purpose and intent of Paragraph
8 and this Paragraph 9.


 


10.           Certain Closing Deliveries and
Conditions; Amendment in Respect of Trust Account; Special Dividend Record
Date.


 


(a)           Notwithstanding the
last recital of the Transaction Agreement and Sections 4.2(b)(vi) and
4.2(b)(ix) of the Transaction Agreement, Parent and Merger Subs shall not
be required to deliver the Stock Exchange Agreement and the Proxy Agreement at
or prior to the Closing, the Stock Exchange Agreement and the Proxy Agreement
will not be executed at Closing and the transactions contemplated thereby will
not be consummated and it shall not be a condition to the Closing that the
Stock Exchange Agreement and the Proxy Agreement be executed and delivered.


 


(b)           Sections 7.19 and
8.3(f) of the Transaction Agreement are hereby amended by replacing the
references therein to the amount of $137,900,000 with references to the amount
of $137,850,000.


 


(c)           Section 7.15 of
the Transaction Agreement among other things requires Parent to cause its board
of directors to declare the special dividend described therein with a record
date (the “Record Date”) that is no fewer than three nor more than five
calendar days after the Closing Date (the Record Date Timing Requirement”).  Notwithstanding such Section 7.l5, the
Record Date Timing Requirement will be satisfied, and Parent will be deemed to
have complied in all respects with the Record Date Timing Requirement, so long
as the Record Date specified in Parent’s board of directors’ declaration of
such special dividend is no later than June 8, 2009.


 


11.           Miscellaneous.


 


This letter
agreement shall be governed by, and construed in accordance with, the laws of
the State of New York without giving effect to its principles or rules of
conflict of laws to the extent such principles or rules would require or
permit the application of the laws of another jurisdiction.  This letter agreement may be executed in
counterparts (including via facsimile or other electronic transmission), each
of which shall be deemed an original, and all of which together shall
constitute one and the same instrument.


 


[remainder of page intentionally
left blank]


 
















 


Please confirm that the foregoing is in accordance with your
understanding by signing and returning to us an executed duplicate of this
letter agreement.


 


 


	
   

  	
   

  	
   

  	
  ED&F MAN HOLDINGS LIMITED

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ Philip A. Howell

  
	
   

  	
   

  	
   

  	
   

  	
  Name: Philip A. Howell

  
	
   

  	
   

  	
   

  	
   

  	
  Title:  
  Chief Operating Officer

  
	
   

  	
   

  	
   

  	
   

  
	
  Acknowledged
  and agreed as of the date first above written:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  WESTWAY HOLDINGS CORPORATION

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Wayne N. Driggers

  	
   

  	
   

  	
   

  
	
   

  	
  Name: Wayne N. Driggers

  	
   

  	
   

  	
   

  
	
   

  	
  Title:  
  Executive Vice President

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  WESTWAY TERMINAL COMPANY INC.

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Wayne N. Driggers

  	
   

  	
   

  	
   

  
	
   

  	
  Name: Wayne N. Driggers

  	
   

  	
   

  	
   

  
	
   

  	
  Title:  
  President

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  WESTWAY FEED PRODUCTS, INC.

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Anthony R. Watts

  	
   

  	
   

  	
   

  
	
   

  	
  Name: Anthony R. Watts

  	
   

  	
   

  	
   

  
	
   

  	
  Title:  
  Director/Secretary

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  SHERMEN WSC ACQUISITION CORP.

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Francis P. Jenkins, Jr.

  	
   

  	
   

  	
   

  
	
   

  	
  Name: Francis P. Jenkins, Jr.

  	
   

  	
   

  	
   

  
	
   

  	
  Title:  
  Chairman and Chief Executive Officer

  	
   

  	
   

  	
   

  



 

















 


	
  TERMINAL MERGER SUB LLC

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Francis P. Jenkins, Jr.

  	
   

  	
   

  	
   

  
	
   

  	
  Name: Francis P. Jenkins, Jr.

  	
   

  	
   

  	
   

  
	
   

  	
  Title: President

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  FEED MERGER SUB LLC

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Francis P. Jenkins, Jr.

  	
   

  	
   

  	
   

  
	
   

  	
  Name: Francis P. Jenkins, Jr.

  	
   

  	
   

  	
   

  
	
   

  	
  Title: President

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Solely as to Paragraphs 8, 9 and 11 above:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  SHERMEN WSC HOLDING LLC

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Francis P. Jenkins, Jr.

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  	
   

  



 

















 


Cc:


 


Cottons Centre


Hay’s Lane


London SE1 2QE


England


Attention:
Philip Howell


Facsimile: +44
207 089 8112


 


Dewey &
LeBoeuf LLP


1301 Avenue of
the Americas


New York, NY
10019


Attention: Alexander M. Dye, Esq.


Facsimile:
(212) 259-6333


 


Dechert LLP

Cira Centre

2929 Arch Street

Philadelphia, PA  19104

Attention:  Craig L. Godshall, Esq.

Facsimile:  (215) 994-2222


 

















 


ANNEX A


 


COVERED EMPLOYEES


 

















 


ANNEX B


 


FORM OF 

GUARANTEE


 

















 


ANNEX C


 


FORM OF

DEED OF INDEMNITY


 

















 


ANNEX D


 


FORM OF


LETTER AGREEMENT


 

















 


ANNEX E


 


	
  Purchased
  Company

  	
   

  	
  Document(s)

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ED&F Man
  Korea Ltd.

  	
   

  	
  ·     Stock Transfer
  Agreement 

   

  ·     Original Company
  Registry 

   

  ·     Copy of the
  Shareholder Ledger 

   

  ·     Copy of Foreign
  Invested Enterprise Certificate

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Westway Terminals Nederland B.V.

  	
   

  	
  ·     Stock Transfer
  Agreement 

   

  ·     Certified Articles
  of Association and English translation 

   

  ·     Original Extract
  from the Chamber of Commerce

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Westway Terminals Esbjerg ApS

  	
   

  	
  ·     Stock Transfer
  Agreement

   

  ·     Legal Confirmation
  executed by Rasmus Mehl dated May 26, 2009 

   

  ·     Original Extract
  from Danish Registry

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Westway Terminals
  Poland sp. zo.o

  	
   

  	
  ·     Stock Transfer
  Agreement 

   

  ·     Original Notarial
  Deed 

   

  ·     As soon as
  reasonably practicable following Closing a copy and an original of the
  extract from the Polish Registry