Common use of Irrevocable Proxies Clause in Contracts

Irrevocable Proxies. In order to secure the performance of each Stockholder’s obligations under this Agreement, by entering into this Agreement and solely with respect to the matters described in Section 1.01, such Stockholder hereby irrevocably grants a proxy appointing such Persons as Triarc designates as such Stockholder’s attorney-in-fact and proxy, with full power of substitution, for and in its, his or her name, place and xxxxx, to vote, express consent or dissent, or otherwise to utilize such voting power in the manner contemplated by and in accordance with Section 1.01, in such Person’s discretion, with respect to such Stockholder’s Subject Shares, in each case, until the termination of this Agreement in accordance with Section 4.03. Each Stockholder hereby represents that any proxies heretofore given in respect of the Subject Shares are not irrevocable, and that any such proxies are hereby revoked. Each Stockholder severally (and not jointly) hereby affirms that the irrevocable proxy set forth in this Section 1.02 is given in connection with the execution of the Merger Agreement and affirms that such irrevocable proxy is coupled with an interest and may under no circumstances be revoked, except that such irrevocable proxy shall be revoked automatically, without any notice or other action by any Person, upon the termination of this Agreement in accordance with Section 4.03. Each Stockholder severally (and not jointly) hereby ratifies and confirms all that such irrevocable proxy may lawfully do or cause to be done by virtue hereof. THE PROXY AND POWER OF ATTORNEY SET FORTH IN THIS SECTION 1.02 IS IRREVOCABLE AND COUPLED WITH AN INTEREST. Each Stockholder shall execute and deliver to Triarc any proxy cards that such Stockholder receives to vote in favor of the adoption of the Merger Agreement, the Merger or any of the transactions contemplated thereby.

Irrevocable Proxies. In order to secure the performance of each Stockholder’s obligations under this Agreement, by entering into this Agreement (a) Each Large Holder hereby constitutes and solely with respect to the matters described in Section 1.01, such Stockholder hereby irrevocably grants a proxy appointing such Persons as Triarc designates as such Stockholder’s attorney-in-fact and proxyappoints VB, with full power of substitution, as the proxies of the Large Holder with respect to the matters set forth herein, including without limitation, votes regarding any Proposed Transaction for which a Drag-Along Notice has been sent pursuant to Section 2 of this Agreement and in itswhich does not fail any of the Section 2.2 elements, his or her name, place and xxxxx, hereby authorizes each of them to represent and to vote, express consent if and only if the Large Holder attempts to vote (whether by proxy, in person or dissentby written consent), or otherwise to utilize fail to vote, in a manner which is inconsistent with the terms of this Agreement, all of such voting power in the manner Large Holder’s Corporation shares as was contemplated by and in accordance with Section 1.01, in such Person’s discretion, with respect this Agreement. The proxy granted pursuant to such Stockholder’s Subject Shares, in each case, until the termination of this Agreement in accordance with Section 4.03. Each Stockholder hereby represents that any proxies heretofore immediately preceding sentence is given in respect consideration of the Subject Shares are not irrevocable, agreements and that any such proxies are hereby revoked. Each Stockholder severally (covenants of the Corporation and not jointly) hereby affirms that the irrevocable proxy set forth in this Section 1.02 is given VB in connection with the execution of the Merger transactions contemplated by this Agreement and affirms that such irrevocable proxy the Series A Preferred Stock Purchase Agreement and, as such, is coupled with an interest and may under no circumstances be revoked, except that such irrevocable proxy shall be revoked automaticallyirrevocable unless and until this Agreement terminates pursuant to Section 6.1 hereof. Each Large Holder hereby revokes any and all previous proxies with respect to such Large Holder’s Corporation shares and shall not hereafter, without unless and until this Agreement terminates pursuant to Section 6.1 hereof, purport to grant any notice other proxy or power of attorney with respect to any of such Large Holder’s Corporation shares, deposit any of such Large Holder’s Corporation shares into a voting trust or enter into any agreement (other action than this Agreement), arrangement or understanding with any person, directly or indirectly, to vote, grant any proxy or give instructions with respect to the voting of any of its Corporation shares, in each case, with respect to any of the matters set forth herein. (b) VB hereby constitutes and appoints the Chief Executive Officer of the Corporation (ex officio), with full power of substitution, as the proxy of VB with respect to the matters set forth in Section 3, and hereby authorizes him to represent and to vote, if and only if VB attempts to vote (whether by any Personproxy, upon in person or by written consent), or to fail to vote, in a manner which is inconsistent with the termination terms of this Agreement in accordance with Section 4.03. Each Stockholder severally (and not jointly) hereby ratifies and confirms all that such irrevocable proxy may lawfully do or cause to be done by virtue hereof. THE PROXY AND POWER OF ATTORNEY SET FORTH IN THIS SECTION 1.02 IS IRREVOCABLE AND COUPLED WITH AN INTEREST. Each Stockholder shall execute and deliver to Triarc any proxy cards that such Stockholder receives to vote in favor of the adoption of the Merger Agreement, the Merger all or any of VB’s Corporation shares as was contemplated by this Agreement. The proxy granted pursuant to the immediately preceding sentence is given in consideration of the agreements and covenants of the Corporation and the Large Holders in connection with the transactions contemplated therebyby this Agreement and the Series A Preferred Stock Purchase Agreement and, as such, is coupled with an interest and shall be irrevocable unless and until this Agreement terminates pursuant to Section 6.1 hereof. VB hereby revokes any and all previous proxies with respect to its Corporation shares and shall not hereafter, unless and until this Agreement terminates pursuant to Section 6.1 hereof, purport to grant any other proxy or power of attorney with respect to any of its Corporation shares, deposit any of its Corporation shares into a voting trust or enter into any agreement (other than this Agreement), arrangement or understanding with any person, directly or indirectly, to vote, grant any proxy or give instructions with respect to the voting of any of its Corporation shares, in each case, with respect to any of the matters set forth herein.

Irrevocable Proxies. In order (a) Each party to secure the performance of each Stockholder’s obligations under this Agreement, by entering into this Agreement hereby constitutes and solely with respect appoints as the proxies of the party and hereby grants a power of attorney to the matters described in Section 1.01Generally Elected Directors, such Stockholder hereby irrevocably grants a proxy appointing such Persons as Triarc designates as such Stockholder’s attorney-in-fact and proxyeach of them, with full power of substitution, for with respect to the following items: (i) election of persons as members of the Board in accordance with Section 1.2 hereto, (ii) votes to increase authorized shares pursuant to Section 1.7 hereto, and (iii) votes regarding any Sale of the Company pursuant to Section 2 hereof, and hereby authorizes each of them to represent and vote, if and only if the party fails to vote, or attempts to vote (whether by proxy, in person or by written consent), in a manner which is inconsistent with the terms of this Agreement, all of such party’s Shares in favor of (x) the election of persons as members of the Board determined pursuant to and in itsaccordance with the terms and provisions of this Agreement or the increase of authorized shares or (y) approval of any Sale of the Company pursuant to and in accordance with the terms and provisions of Sections 1 and 2, his respectively, of this Agreement or her nameto take any action necessary to effect Sections 1 and 2, place respectively, of this Agreement. Each of the proxy and xxxxxpower of attorney granted pursuant to the immediately preceding sentence is given in consideration of the agreements and covenants of the Company and the parties in connection with the transactions contemplated by this Agreement and, as such, each is coupled with an interest and shall be irrevocable unless and until this Agreement terminates or expires pursuant to Section 7 hereof. Each party hereto hereby revokes any and all previous proxies or powers of attorney with respect to the Shares and shall not hereafter, unless and until this Agreement terminates or expires pursuant to Section 7 hereof, purport to grant any other proxy or power of attorney with respect to any of the Shares, deposit any of the Shares into a voting trust or enter into any agreement (other than this Agreement), arrangement or understanding with any person, directly or indirectly, to vote, express consent grant any proxy or dissent, or otherwise to utilize such voting power in the manner contemplated by and in accordance with Section 1.01, in such Person’s discretion, give instructions with respect to such Stockholder’s Subject the voting of any of the Shares, in each case, until the termination of this Agreement in accordance with Section 4.03. Each Stockholder hereby represents that respect to any proxies heretofore given in respect of the Subject Shares are not irrevocable, matters set forth herein. (b) In addition to the other rights and that any such proxies are hereby revoked. Each Stockholder severally (and not jointly) hereby affirms that the irrevocable proxy obligations set forth in this Agreement, including Section 1.02 3.2(a), each Stockholder, other than holders of Series B Preferred Stock, Series B PIK Dividend Shares and Series C Preferred Stock, desires to create and grant to Xxxxxxxxx X. Xxxxxxxx (the “Proxy Holder”) a proxy coupled with an interest which shall be irrevocable pursuant to Section 212 of the Delaware General Corporation Law. Each Stockholder, other than holders of Series B Preferred Stock, Series B PIK Dividend Shares and Series C Preferred Stock (each, for purposes of this Section 3.2(b), a “Grantor”), hereby irrevocably constitutes and appoints the Proxy Holder as such Grantor’s exclusive attorney-in-fact and proxy (the “Proxy”) to vote, or to execute and deliver written consents or otherwise act on such Grantor’s behalf with respect to all Shares owned by such Grantor, or over which such Grantor has voting control (the “Proxy Shares”), as if Grantor had personally attended such a meeting and had personally voted the Proxy Shares in such vote or had personally signed such written consent or written consents. Grantor shall not vote the Proxy Shares without Proxy Holder’s written consent. The Proxy Holder is hereby authorized to attend, and vote the Proxy Shares in any vote at, any and all meetings of the stockholders of the Company, and any adjournments thereof, and to execute any and all written consents of stockholders of the Company to be executed on or after this date for any purpose. Each Grantor hereby affirms that this Proxy is given in connection with the execution as a condition of the Merger Agreement agreements set forth herein, and affirms that was granted in return for valuable consideration, and as such irrevocable proxy is coupled with an interest and may under no circumstances be revoked, except that such irrevocable proxy is irrevocable. Grantor shall be revoked automatically, without not revoke or attempt to revoke the Proxy at any notice or other action by any Person, upon time prior to the termination of this Agreement Agreement, whether in accordance writing or otherwise. Attendance by Grantor at any meeting of the stockholders of the Company at which there will be a vote shall not constitute revocation of the Proxy. Grantor shall cooperate with Section 4.03. Each Stockholder severally (the Proxy Holder to enable the Proxy Holder to vote the Proxy Shares or give written consents with respect thereto and not jointly) hereby ratifies and confirms all that such irrevocable proxy may lawfully do or cause to be done by virtue hereof. THE PROXY AND POWER OF ATTORNEY SET FORTH IN THIS SECTION 1.02 IS IRREVOCABLE AND COUPLED WITH AN INTEREST. Each Stockholder shall execute all such documentation and deliver take all such action as such Proxy Holder may reasonably request, in order to Triarc any proxy cards that such Stockholder receives to vote in favor carry out the intention of the adoption of the Merger this Agreement, the Merger or any of the transactions contemplated thereby.

Irrevocable Proxies. In order to secure the performance of each StockholderShareholder’s obligations under this Agreement, by entering into this Agreement and solely with respect to the matters described in Section 1.01, such Stockholder Shareholder hereby irrevocably grants a proxy appointing such Persons as Triarc designates Xxxxxx X. Xxxxxx, a member of the Board of Directors of Wendy’s (the “Board”), and each of them (the “Proxy”) as such StockholderShareholder’s attorney-in-fact and proxy, with full power of substitution, for and in its, his or her name, place and xxxxx, to vote, express consent or dissent, or otherwise to utilize such voting power in the manner contemplated by and in accordance with Section 1.01, in such Person’s discretion, with respect to such StockholderShareholder’s Subject Shares, in each case, until the termination of this Agreement in accordance with Section 4.03. Each Stockholder Shareholder hereby represents that any proxies heretofore given in respect of the Subject Shares are not irrevocable, and that any such proxies are hereby revoked. Each Stockholder Shareholder severally (and not jointly) hereby affirms that the irrevocable proxy set forth in this Section 1.02 is given in connection with the execution of the Merger Agreement and affirms that such irrevocable proxy is coupled with an interest and may under no circumstances be revoked, except that such irrevocable proxy shall be revoked automatically, without any notice or other action by any Person, upon the termination of this Agreement in accordance with Section 4.03. Each Stockholder Shareholder severally (and not jointly) hereby ratifies and confirms all that such irrevocable proxy may lawfully do or cause to be done by virtue hereof. THE PROXY AND POWER OF ATTORNEY SET FORTH IN THIS SECTION 1.02 IS IRREVOCABLE AND COUPLED WITH AN INTEREST. Each Stockholder Shareholder shall execute and deliver to Triarc Wendy’s any proxy cards that such Stockholder Shareholder receives to vote in favor of the adoption of the Merger Agreement, Agreement and the Merger or any and in favor of the transactions contemplated therebyOpt Out Approval.

Irrevocable Proxies. In order Such Stockholder hereby revokes any and all proxies, powers of attorney and instructions that such Stockholder has heretofore granted and hereby irrevocably appoints Xxxxx X. Xxxxxxx, Xxxx X. Xxxxxxx and Xxxxxxxx X. Xxxxx, in their respective capacities as directors or officers of Parent, and any individual who shall succeed to secure the performance any such position, and any other Person designated in writing by Parent, and each of each them individually, as such Stockholder’s obligations under this Agreementproxy and attorney-in fact (with full power of substitution), by entering into this Agreement for and solely in the name, place and stead of such Stockholder, to: (i) attend any and all stockholder meetings of the Company with respect to the matters described set forth in Section 1.012.1; (ii) vote, such Stockholder hereby irrevocably grants a proxy appointing such Persons as Triarc designates as such Stockholder’s attorney-in-fact and proxy, with full power of substitution, for and in its, his express consent or her name, place and xxxxx, dissent or issue instructions to the record holder to vote, express consent or dissent, or otherwise to utilize such voting power in the manner contemplated by and in accordance with Section 1.01, in such Person’s discretion, dissent with respect to such Stockholder’s Subject Shares in accordance with the provisions of Section 2.1 at any such meeting; and (iii) grant or withhold, or issue instructions to the record holder to grant or withhold, consistent with the provisions of Section 2.1, all written consents with respect to the Subject Shares, in each casecase to the same extent and with the same effect as such Stockholder might or would do under applicable Law. The foregoing proxy is a proxy coupled with an interest, until is irrevocable (and as such shall survive and not be affected by the death, incapacity, mental illness or insanity of such Stockholder) and shall not be terminated by operation of Law or upon the occurrence of any other event other than the valid termination of this Agreement in accordance with pursuant to Section 4.033.2. Each Stockholder hereby represents that any proxies heretofore given in respect of the Subject Shares are not irrevocable, and that any such proxies are hereby revoked. Each Stockholder severally (and not jointly) hereby affirms that the irrevocable proxy set forth in this Section 1.02 2.2 is given in connection with the execution and granted in consideration of and as an inducement to Parent entering into the Merger Agreement and affirms that such irrevocable proxy is coupled with an interest and may given to secure the obligations of the Stockholder under no circumstances be revoked, except that such Section 2.1 hereof. The irrevocable proxy shall set forth in this Section 2.2 is executed and intended to be revoked automaticallyirrevocable subject, without any notice or other action by any Personhowever, to automatic termination upon the valid termination of this Agreement in accordance with pursuant to Section 4.03. Each Stockholder severally (and not jointly) hereby ratifies and confirms all that such irrevocable proxy may lawfully do or cause to be done by virtue hereof. THE PROXY AND POWER OF ATTORNEY SET FORTH IN THIS SECTION 1.02 IS IRREVOCABLE AND COUPLED WITH AN INTEREST. Each Stockholder shall execute and deliver to Triarc any proxy cards that such Stockholder receives to vote in favor of the adoption of the Merger Agreement, the Merger or any of the transactions contemplated thereby3.

Irrevocable Proxies. In order to secure the performance of each StockholderShareholder’s obligations under this Agreement, by entering into this Agreement and solely with respect to the matters described in Section 1.01, such Stockholder Shareholder hereby irrevocably grants a proxy appointing such Persons as Triarc designates Txxxxx X. Xxxxxx, a member of the Board of Directors of Wendy’s (the “Board”), and each of them (the “Proxy”) as such StockholderShareholder’s attorney-in-fact and proxy, with full power of substitution, for and in its, his or her name, place and xxxxxsxxxx, to vote, express consent or dissent, or otherwise to utilize such voting power in the manner contemplated by and in accordance with Section 1.01, in such Person’s discretion, with respect to such StockholderShareholder’s Subject Shares, in each case, until the termination of this Agreement in accordance with Section 4.03. Each Stockholder Shareholder hereby represents that any proxies heretofore given in respect of the Subject Shares are not irrevocable, and that any such proxies are hereby revoked. Each Stockholder Shareholder severally (and not jointly) hereby affirms that the irrevocable proxy set forth in this Section 1.02 is given in connection with the execution of the Merger Agreement and affirms that such irrevocable proxy is coupled with an interest and may under no circumstances be revoked, except that such irrevocable proxy shall be revoked automatically, without any notice or other action by any Person, upon the termination of this Agreement in accordance with Section 4.03. Each Stockholder Shareholder severally (and not jointly) hereby ratifies and confirms all that such irrevocable proxy may lawfully do or cause to be done by virtue hereof. THE PROXY AND POWER OF ATTORNEY SET FORTH IN THIS SECTION 1.02 IS IRREVOCABLE AND COUPLED WITH AN INTEREST. Each Stockholder Shareholder shall execute and deliver to Triarc Wendy’s any proxy cards that such Stockholder Shareholder receives to vote in favor of the adoption of the Merger Agreement, Agreement and the Merger or any and in favor of the transactions contemplated therebyOpt Out Approval.

Irrevocable Proxies. In order to secure (a) Each Holder hereby designates, constitutes and appoints Bremxx xxxing the performance term of each Stockholder’s obligations under this Agreement, by entering into this Agreement and solely with respect to the matters described in Section 1.01, such Stockholder hereby irrevocably grants a proxy appointing such Persons as Triarc designates as such Stockholder’s Holder's true and lawful proxy and attorney-in-fact and proxyfact, with full power of substitution, to vote, and execute shareholder consents pursuant to O.C.G.A. Section 14-2-704 with respect to, his/her Shares for and in its, his or her the name, place and xxxxx, to vote, express consent or dissent, or otherwise to utilize stead of such voting power in the manner contemplated by and in accordance with Section 1.01, in such Person’s discretionHolder, with respect to such Stockholder’s Subject Shares, all matters for which Holder would otherwise be permitted to vote the Shares pursuant to the Articles of Incorporation and Bylaws of the Company and Georgia law. ALL POWER AND AUTHORITY HEREBY CONFERRED PURSUANT TO THE FOREGOING PROXY RELATING TO SUCH HOLDER'S SHARES OF COMMON STOCK ARE COUPLED WITH AN INTEREST AND ARE IRREVOCABLE. (b) Each Irrevocable Proxy granted in each case, until this Section is specifically granted in consideration of the termination execution and delivery of this Agreement in accordance with pursuant to O.C.G.A. Section 4.0314-2-731. Each Stockholder hereby represents that any proxies heretofore given in respect of the Subject Shares are not irrevocable, and that any such proxies are hereby revoked. Each Stockholder severally (and not jointly) hereby affirms that the irrevocable proxy set forth in this Section 1.02 is given in connection with the execution of the Merger Agreement and affirms Holder agrees that such irrevocable Holder's proxy is coupled with an interest sufficient in law to support an irrevocable power and may under no circumstances shall not be revoked, except that such irrevocable proxy shall be revoked automatically, without any notice or other action terminated by any Personact of such Holder, by lack of appropriate authority or by the occurrence of any other event or events other than pursuant to Section 3(c) hereof. (c) The Irrevocable Proxies granted in this Section shall terminate upon the termination earliest of: (i) March 22, 2001 (unless extended by mutual agreement of the parties hereto); (ii) the death or disability of Bremxx. For purposes of this Agreement paragraph (ii), Bremxx xxxll be deemed subject to a "disability" if any of the following three events occurs: (A) Bremxx xx determined to be totally disabled under, and for purposes of, a contract of employment with or any health or disability plan of the Company or another corporation controlling, controlled by, or under common control with the Company (an "Affiliate") under which Bremxx xx employed or which covers Bremxx; (X) Bremxx xx found to be entitled to "total disability" benefits under any disability income insurance policy; (C) Bremxx xx found to be entitled to Social Security disability benefits; (iii) upon termination, for any reason, of Bremxx'x xxxloyment with the Company (and all of its Affiliates) such that Bremxx xx no longer employed on a full-time basis by any of Simixxx Xxxtral Holding, Inc. or its Affiliates; or (iv) the first day on which equity securities of the same class as the Common Stock covered by a registration statement filed in accordance with Section 4.03. Each Stockholder severally (and not jointly) hereby ratifies and confirms all that such irrevocable proxy the Securities Act of 1933, as amended, may lawfully do or cause be offered and sold pursuant to be done by virtue hereof. THE PROXY AND POWER OF ATTORNEY SET FORTH IN THIS SECTION 1.02 IS IRREVOCABLE AND COUPLED WITH AN INTEREST. Each Stockholder shall execute and deliver to Triarc any proxy cards that such Stockholder receives to vote in favor of the adoption of the Merger Agreement, the Merger or any of the transactions contemplated therebyregistration statement.

Irrevocable Proxies. In order to secure the performance of each Stockholder’s obligations under this Agreement, by entering into this Agreement and solely with respect to the matters described in Section 1.01, such each Stockholder hereby irrevocably grants (and with respect to each Contingent Stockholder, each such Contingent Stockholder commits to irrevocably grant, upon the expiration of the Existing Voting Agreement) a proxy appointing such Persons as Triarc designates Xx. Xxxxxx X. Gluckstern (“SMG”) as such Stockholder’s attorney-in-fact and proxy, with full power of substitution, for and in its, his or her name, place and xxxxx, to vote, express consent or dissent, or otherwise to utilize such voting power in the manner contemplated by and in accordance with Section 1.01, in such PersonSMG’s discretion, with respect to such Stockholder’s Subject Shares, in each case, until the termination of this Agreement in accordance with Section 4.03. Each Stockholder hereby represents that any proxies heretofore given in respect of the Subject Shares (other than proxies pursuant to the Existing Voting Agreement) are not irrevocable, and that any such proxies are hereby revoked. Each Stockholder severally (and not jointly) hereby affirms that the irrevocable proxy set forth in this Section 1.02 is given (and with respect to each Contingent Stockholder, is committed to be given) in connection with the execution of the Merger Purchase Agreement and affirms that such irrevocable proxy is coupled with an interest and may under no circumstances be revoked, except that such irrevocable proxy shall be revoked automatically, without any notice or other action by any Person, upon the termination of this Agreement in accordance with Section 4.03. Each Stockholder severally (and not jointly) hereby ratifies and confirms all that such irrevocable proxy may lawfully do or cause to be done by virtue hereof. THE PROXY AND POWER OF ATTORNEY SET FORTH IN THIS SECTION 1.02 IS IRREVOCABLE AND COUPLED WITH AN INTEREST. Each Stockholder (and with respect to the each Contingent Stockholder, upon the expiration of the Existing Voting Agreement) shall execute and deliver to Triarc SMG any proxy cards that such Stockholder receives to vote in favor of the adoption approval of the Merger Purchase Agreement, the Merger Transaction or any of the transactions contemplated thereby.

Irrevocable Proxies. In order to secure the performance of each StockholderShareholder’s obligations under this Agreement, by entering into this Agreement and solely with respect to the matters described in Section 1.014.01, such Stockholder Shareholder hereby irrevocably grants a proxy appointing such Persons as Triarc Parent designates as such StockholderShareholder’s attorney-in-fact and proxy, with full power of substitution, for and in its, his or her name, place and xxxxx, to vote, express consent or dissent, or otherwise to utilize such voting power in the manner contemplated by and in accordance with Section 1.014.01, in such Person’s discretion, with respect to such StockholderShareholder’s Subject Shares, in each case, until the termination of this Agreement in accordance with Section 4.035.03. Such Shareholder hereby revokes any and all previous proxies granted with respect to its, his or her Subject Shares. Each Stockholder hereby represents that any proxies heretofore given in respect of the Subject Shares are not irrevocable, and that any such proxies are hereby revoked. Each Stockholder Shareholder severally (and not jointly) hereby affirms that the irrevocable proxy set forth in this Section 1.02 4.02 is given in connection with the execution of the Merger Agreement and affirms that such irrevocable proxy is coupled with an interest and may under no circumstances be revoked, except that such irrevocable proxy shall be revoked automatically, without any notice or other action by any Person, upon the termination of this Agreement in accordance with Section 4.035.03. Each Stockholder Shareholder severally (and not jointly) hereby ratifies and confirms all that such irrevocable proxy may lawfully do or cause to be done by virtue hereof. THE PROXY AND POWER OF ATTORNEY SET FORTH IN THIS SECTION 1.02 4.02 IS IRREVOCABLE AND COUPLED WITH AN INTEREST. Each Stockholder Shareholder shall execute and deliver to Triarc Parent any proxy cards that such Stockholder Shareholder receives to vote in favor of the adoption of the Merger Agreement, the Merger or any of Agreement and the transactions contemplated thereby.

Irrevocable Proxies. In order to secure the performance (a) By execution of each Stockholder’s obligations under this Agreement, by entering into this Agreement each Shareholder (other than Fifth Avenue Capital Partners) hereby revokes any and solely with respect to the matters described in Section 1.01, such Stockholder all prior proxies and hereby irrevocably grants a proxy appointing such Persons as Triarc designates as such Stockholder’s attorney-in-fact appoints and proxyconstitutes XxXxxx, with full power of substitution, for to act as proxy (i) to vote the Restricted Shares of such Shareholder on all matters presented at any meeting of shareholders (including any adjournments or postponements thereof) and/or (ii) to execute and deliver any shareholder consent in itslieu thereof, as XxXxxx may determine in his or her name, place and xxxxx, to vote, express consent or dissent, or otherwise to utilize such voting power in the manner contemplated by and in accordance with Section 1.01, in such Person’s sole discretion, and XxXxxx hereby accepts such appointment. Each proxy granted pursuant to this Section 2.1(a) shall be effective for all purposes from the Effective Date until the third anniversary of the consummation of an initial public offering of shares of Common Stock pursuant to a registration statement filed with the Securities and Exchange Commission under the Securities Act of 1933, as amended, on Form S-1, Form SB-2 or the equivalent thereof, subject to earlier termination pursuant to Article III hereof (the "IPO Third Anniversary"); provided, however, that each proxy with respect to the number of shares of Common Stock of each of the Shareholders set forth on Exhibit B attached hereto shall terminate upon the earlier to occur of (i) the IPO Third Anniversary and (ii) the purchase of such Stockholder’s Subject Sharesshares by Xxxxxx X. Xxxxxxxxxx ("Gluckstern") pursuant the Share Purchase Right Agreement, in each casedated as of November 8, until 2005, among the termination of this Agreement in accordance with Section 4.03Company, Gluckstern, XxXxxx and the Shareholders named therein. Each Stockholder hereby represents that any proxies heretofore given in respect of the Subject Shares are not irrevocable, and that any such proxies are hereby revoked. Each Stockholder severally (and not jointly) hereby affirms that the irrevocable proxy set forth authority contained in this Section 1.02 is given in connection with the execution of the Merger Agreement and affirms that such irrevocable proxy is 2.1(a) shall be deemed to be coupled with an interest and may under no circumstances be revoked, except that such irrevocable proxy shall be irrevocable. Each proxy granted pursuant to this Section 2.1(a) shall survive each Shareholder's death or incapacity and, during the term thereof, may not be revoked automatically, without by any notice guardian or other action by personal representative of such Shareholder for any Person, upon the termination reason whatsoever. (b) By execution of this Agreement in accordance Agreement, Fifth Avenue Capital Partners hereby revokes any and all prior proxies and hereby irrevocably appoints and constitutes XxXxxx, with Section 4.03. Each Stockholder severally full power of substitution, to act as proxy (and not jointlyi) hereby ratifies and confirms to vote the Restricted Shares of such Shareholder on all that such irrevocable proxy may lawfully do matters presented at any meeting of shareholders (including any adjournments or cause postponements thereof) and/or (ii) to be done by virtue hereof. THE PROXY AND POWER OF ATTORNEY SET FORTH IN THIS SECTION 1.02 IS IRREVOCABLE AND COUPLED WITH AN INTEREST. Each Stockholder shall execute and deliver any shareholder consent in lieu thereof, as XxXxxx may determine in his sole discretion, and XxXxxx hereby accepts such appointment. The proxy granted pursuant to Triarc this Section 2.1(b) shall be effective for all purposes from the Effective Date until terminated pursuant to Article III hereof. The proxy authority contained in this Section 2.1(b) shall be deemed to be coupled with an interest and shall be irrevocable. The proxy granted pursuant to this Section 2.1(b) shall survive may not be revoked for any proxy cards that such Stockholder receives to vote in favor of the adoption of the Merger Agreement, the Merger or any of the transactions contemplated therebyreason whatsoever.