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This excerpt taken from the WEN 8-K filed Dec 21, 2007. SELLERS’ REPRESENTATIVE 9.1 Appointment of Sellers’ Representative. Pursuant to the Member Written Consent, the Sellers’ Representative (including its successors and assigns) is appointed, authorized and empowered to be the exclusive proxy, representative, agent and attorney-in-fact of each of the Members, with full power of substitution, to give and receive notices and communications, to take any and all action on behalf of the Members pursuant to this Agreement, including but not limited to asserting, prosecuting or settling any claim against the Buyer or Buyer Sub, defending or settling any claim validly asserted by the Buyer or Buyer Sub, and otherwise to act and execute, deliver and receive all documents, instruments and consents on behalf of such Members at any time after the date hereof, in connection with, and that may be necessary or appropriate to accomplish the intent and implement the provisions of, this Agreement, and in connection with the activities to be performed by or on behalf of such Members under this Agreement. By executing this Agreement, the Sellers’ Representative accepts such appointment, authority and power. Notwithstanding anything in this Article IX to the contrary, the Sellers’ Representative shall not be authorized in its capacity as the Sellers’ 70 Representative to take any action that treats a Member in its capacity as such different from other Members or increases the liability of any Member without the consent of such Member. For the avoidance of doubt, the Sellers’ Representative shall have no authority to act on behalf of the Members under any agreement or document other than pursuant to the terms of this Agreement. 9.2 Authority. The appointment of the Sellers’ Representative by each such Member is coupled with an interest and may not be revoked in whole or in part (including, upon the death or incapacity of any such Member). Such appointment shall be binding upon the heirs, executors, administrators, estates, personal representatives, officers, directors, securityholders, successors and assigns of each of the Members. With respect to any matter contemplated by this Article IX, the Members shall be bound by any and all determinations by or against the Sellers’ Representative consistent with the rights and powers granted to the Sellers’ Representative pursuant to this Agreement or the terms of any settlement or release to which the Sellers’ Representative shall become a party. 9.3 Limitation of Liability. The parties hereto understand and agree that the Sellers’ Representative is acting solely on behalf of and as agent for the Members and not in its personal capacity, and in no event shall the Sellers’ Representative be personally liable to the Members hereunder except in the case of bad faith, willful misconduct or gross negligence. The Sellers’ Representative shall not be liable for any act done or omitted hereunder as Sellers’ Representative unless the Sellers’ Representative engaged in bad faith, willful misconduct or gross negligence. Except with respect to the indemnification obligations of the Sellers’ Representative in Article XI which shall solely be the obligation of the Sellers’ Representative and not the Members, the Members severally and not jointly agree to indemnify the Sellers’ Representative, on a pro rata basis based on the respective amounts paid to the Members pursuant to Section 3.2(a), for any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever (including the fees and expenses of counsel to the Sellers’ Representative), which may at any time be imposed on, incurred by or asserted against the Sellers’ Representative in any way relating to or arising out of serving as Sellers’ Representative under this Agreement or any documents contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby or the enforcement of any of the terms hereof or thereof; provided, however, that no Member shall be liable for any of the foregoing to the extent they arise from the Sellers’ Representative’s bad faith, gross negligence or willful misconduct; provided, further, that Sellers’ Representative’s sole recourse against the Members under this Agreement shall be limited to the Sellers’ Representative Expense Fund. The Sellers’ Representative shall be fully justified in refusing to take or to continue to take any action hereunder unless it shall first be fully indemnified to its reasonable satisfaction by the Members against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. Notwithstanding any provision to the contrary contained elsewhere herein, the Sellers’ Representative shall not have any duties or responsibilities, except those expressly set forth herein, nor shall the Sellers’ Representative have or be deemed to have any trustee or fiduciary relationship with any Member, and no implied covenants, functions, 71 responsibilities, duties, obligations or liabilities shall be read into this Agreement or otherwise exist against the Sellers’ Representative. 9.4 Reliance. From and after the Effective Time, each of the Buyer and the Surviving LLC is entitled to deal exclusively with the Sellers’ Representative on all matters relating to this Agreement, and agrees to deal with the Sellers’ Representative on an exclusive basis. A decision, act, consent or instruction of the Sellers’ Representative shall constitute a decision of all the Members and none of the Company, the Surviving LLC or the Buyer shall have any liability for any action of, or omission by, the Sellers’ Representative in its capacity as such. Such decision, act, consent or instruction is final, binding and conclusive upon each Member, and no such Member shall have the right to object, dissent, protest or otherwise contest the same; provided that such decision, act, consent or instruction was made in accordance with the terms of this Article IX and otherwise was not the result of the bad faith, gross negligence or willful misconduct of the Sellers’ Representative. The Buyer and the Surviving LLC may rely upon any decision, act, consent or instruction of the Sellers’ Representative. 9.5 Successor to Sellers’ Representative. In the event of the failure, inability or refusal of Triarc Companies, Inc. (or any successor) to act as Sellers’ Representative hereunder, the Members shall promptly fill such a vacancy by approval of the majority of the Members (assuming the voting rights of the Members in effect immediately prior to the Merger). 9.6 Expenses. The Sellers’ Representative is authorized by the Members to incur expenses on behalf of the Members in acting hereunder (including the reasonable expenses of counsel to the Sellers’ Representative). The Members severally and not jointly agree to reimburse the Sellers’ Representative on demand for their pro rata share (based on the respective amounts paid to the Members pursuant to Section 3.2(a)) of all fees, costs and expenses incurred by or at the direction of the Sellers’ Representative for the benefit of the Members hereunder including, for all fees, costs and expenses incurred by the Sellers’ Representative pursuant to this Agreement, the Note and the Registration Rights Agreement. The Sellers’ Representative’s sole recourse against the Members under this Agreement shall be limited to the Sellers’ Representative Expense Fund. |
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