EXHIBIT 4.1
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PREFERRED STOCK EXCHANGE AGREEMENT
among
HARRY'S FARMERS MARKET, INC.
and
XXXXXX XXXXXXX NOMINEES LTD.,
AXA EQUITY & LAW LIFE ASSURANCE SOCIETY,
ORBIS PENSION TRUSTEES LTD.,
ASHFORD CAPITAL PARTNERS, L.P., and
XXXXXXXX X. XXXXXXX
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JANUARY 31, 1997
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TABLE OF CONTENTS
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Page
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ARTICLE 1
EXCHANGE OF PREFERRED STOCK AND AMENDMENT OF WARRANT........................... 3
SECTION 1.1 Exchange of Preferred Shares...................................... 3
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SECTION 1.2 Amendment of Warrant Price........................................ 3
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SECTION 1.3 Registration Rights Agreements.................................... 3
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SECTION 1.4 Closing........................................................... 4
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SECTION 1.5 Closing Deliveries................................................ 4
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ARTICLE 2
REPRESENTATIONS AND WARRANTIES................................................. 4
SECTION 2.1 Representations and Warranties of the Preferred Stockholders...... 4
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(a) Authority to Execute and Perform Agreement........................ 5
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(b) Title to the Preferred Shares..................................... 6
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(c) Investment Representation......................................... 6
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SECTION 2.2 Representations and Warranties of the Company..................... 7
(a) Due Incorporation and Authority................................... 7
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(b) Authority and Validity of Agreement............................... 7
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(c) Capitalization of the Company..................................... 9
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(d) Exchange Preferred Validly Issued................................ 11
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(e) Articles of Amendment............................................ 11
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(f) Closing of Transaction Agreement................................. 11
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ARTICLE 3
COVENANTS AND AGREEMENTS...................................................... 12
SECTION 3.1 Incorporation of Covenants by Reference.......................... 12
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SECTION 3.2 Termination of Purchase Agreements............................... 12
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SECTION 3.3 Transactions with Affiliates..................................... 13
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SECTION 3.4 Publicity........................................................ 17
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SECTION 3.5 Expenses......................................................... 17
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ARTICLE 4
CONDITIONS TO CLOSING......................................................... 17
SECTION 4.1 Conditions to the Obligation of Parties to Close................. 17
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SECTION 4.2 Conditions to the Obligation of the Preferred Stockholders to
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Close..................................................................... 18
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SECTION 4.3 Conditions Precedent to the Obligation of the Company to Close... 19
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SECTION 4.4 Survival of Representations and Warranties After Closing......... 19
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ARTICLE 5
MISCELLANEOUS................................................................. 20
SECTION 5.1 Further Assurances............................................... 20
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SECTION 5.2 Termination of Agreement......................................... 20
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SECTION 5.3 Notices.......................................................... 21
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SECTION 5.4 Entire Agreement................................................. 22
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SECTION 5.5 Waivers and Amendments; Non-Contractual Remedies;
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Preservation of Remedies................................................ 22
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SECTION 5.6 Governing Law.................................................... 23
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SECTION 5.7 Binding Effect; Assignment....................................... 23
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SECTION 5.8 Usage............................................................ 23
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SECTION 5.9 Counterparts..................................................... 23
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SECTION 5.10 Headings........................................................ 24
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SECTION 5.11 Severability of Provisions...................................... 24
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PREFERRED STOCK EXCHANGE AGREEMENT
THIS PREFERRED STOCK EXCHANGE AGREEMENT (this "AGREEMENT"), dated as
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of January 31, 1997, is between and among Harry's Farmers Market, Inc., a
Georgia corporation (the "COMPANY"), Xxxxxx Xxxxxxx Nominees Ltd. ("XXXXXXX"),
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AXA Equity & Law Life Assurance Society ("AXA"), Orbis Pension Trustees Ltd.
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("ORBIS"), Ashford Capital Partners, L.P. ("ACP"), and Xxxxxxxx X. Xxxxxxx
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("ASHFORD" and, together with Xxxxxxx, AXA, Orbis, and ACP, the "PREFERRED
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STOCKHOLDERS" and each individually, a "PREFERRED STOCKHOLDER").
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R E C I T A L S
(a) Each of the Preferred Stockholders owns that number of shares of
Series A Redeemable Convertible Preferred Stock, stated value $9.00 per share,
of the Company (the "SERIES A PREFERRED STOCK"), set forth opposite such
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Preferred Stockholder's name on Schedule 1 hereto (each individually, a
"PREFERRED SHARE" and collectively, the "PREFERRED SHARES"), issued to such
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Preferred Stockholder pursuant to separate Share and Warrant Purchase Agreements
dated as of December 30, 1994, between the Company and each of the Preferred
Stockholders (individually the "PURCHASE AGREEMENT" and collectively the
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"PURCHASE AGREEMENTS");
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(b) Each Preferred Stockholder also owns a warrant which, upon due
exercise, entitles such Preferred Stockholder to acquire that number of shares
of Class A Common Stock, without par value, of the Company (the "CLASS A COMMON
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STOCK") set forth opposite such Preferred Stockholder's name on Schedule 1
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hereto, at $10.00 per share (collectively, the "WARRANTS"), containing rights
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and privileges as more fully set forth in those Warrant Certificates each dated
December 30, 1994 (collectively, the "WARRANT CERTIFICATES" and, each
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individually, a "WARRANT CERTIFICATE").
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(c) Pursuant to a resolution of the Board of Directors of the Company
and the Articles of Incorporation of the Company (the "ARTICLES OF
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INCORPORATION"), 1,222,221 shares of the Company's blank cheque preferred stock,
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previously undesignated, shall be designated shares of Series AA Preferred Stock
of the Company, stated value $9.00 per share, of the Company ("SERIES AA
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PREFERRED STOCK").
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(d) Pursuant to a Transaction Agreement (the "TRANSACTION AGREEMENT")
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to be entered into on the date hereof between the Company and HFMI Acquisition
Corporation, a Delaware corporation ("Newco"), among other things, Newco will
enter into certain transactions with the Company.
(e) At the Closing (as defined below), each Preferred Stockholder
shall exchange such Preferred Stockholder's Preferred Shares with the Company
for an equal number of shares of Series AA Preferred Stock ("EXCHANGE PREFERRED
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STOCK").
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(f) Capitalized terms used herein without definition shall have the
respective meanings assigned to them in the Transaction Agreement.
NOW, THEREFORE, in consideration of the premises and representations,
warranties, covenants and agreements herein contained, and intending to be
legally bound hereby, the parties agree as follows:
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ARTICLE 1
EXCHANGE OF PREFERRED STOCK AND
AMENDMENT OF WARRANTS
Section 1.1 Exchange of Preferred Shares. Subject to the satisfaction
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or waiver by the relevant party of the conditions contained in the Transaction
Agreement and this Agreement, at the Closing, (i) each Preferred Stockholder
shall transfer to the Company, and the Company shall accept and redeem, such
Preferred Stockholder's Preferred Shares, and (ii) the Company shall issue and
transfer to such Preferred Stockholder a like number of shares of Exchange
Preferred Stock (the "EXCHANGE").
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Section 1.2 Amendment of Warrant Price. Simultaneously with the
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Exchange, the terms and conditions of the Warrant Certificate shall be amended
pursuant to the terms of an Amendment to Warrant Certificate (individually a
"WARRANT AMENDMENT" and together, the "WARRANT AMENDMENTS") so that the price
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per share of Class A Common Stock at which each Preferred Stockholder may
purchase such shares of Class A Common Stock upon exercise of the Warrant and
the Warrant Certificate shall be $4.00 per share.
SECTION 1.3 Registration Rights Agreements. Also simultaneously with
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the Exchange, (a) each of the Registration Rights Agreements dated December 30,
1994, between the Company and each of the Preferred Stockholders, shall be
amended, and (b) the Company and each Preferred Stockholder shall enter into an
amendment to the respective Registration Rights Agreements (the "REGISTRATION
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RIGHTS AMENDMENTS"), in the forms of Exhibit A-1 and A-2 attached hereto.
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SECTION 1.4 Closing. The closing for the Exchange (the "CLOSING")
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shall take place concurrently with the closing of the transactions contemplated
by the Transaction Agreement on the closing date (the "CLOSING DATE").
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SECTION 1.5 Closing Deliveries.
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At the Closing:
(a) each Preferred Stockholder shall deliver to the Company a
duly executed stock certificate or certificates representing such Preferred
Stockholder's Preferred Shares, duly endorsed in blank or accompanied by an
appropriate stock power duly executed in blank, in proper form for transfer, and
with all appropriate stock transfer tax stamps affixed; and
(b) the Company shall deliver to each Preferred Stockholder duly
executed stock certificates or certificates representing the EXCHANGE PREFERRED
STOCK to be exchanged for that Preferred Stockholder's Preferred Shares, in
proper form.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES
Section 2.1 Representations and Warranties of the Preferred
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Stockholders. Each Preferred Stockholder represents and warrants to the Company
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as follows:
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(a) Authority to Execute and Perform Agreement. Such Preferred
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Stockholder has full legal right and power and all authority and approvals
required to enter into, execute and deliver this Agreement and each and every
agreement and instrument contemplated hereby to which it is or will be a party
and to perform fully its obligations hereunder and thereunder. This Agreement
has been duly executed and delivered by such Preferred Stockholder, and on the
Closing Date, each and every agreement and instrument contemplated hereby to
which such Preferred Stockholder is a party will be duly executed and delivered
by it and (assuming due execution and delivery hereof and thereof by the other
parties hereto and thereto) this Agreement and each such other agreement and
instrument will be valid and binding obligations of such Preferred Stockholder
enforceable against it in accordance with their respective terms. The execu tion
and delivery by such Preferred Stockholder of this Agreement and each and every
agreement and instrument contemplated hereby to which it is a party, the
consummation of the transactions contemplated hereby and thereby and the
performance by such Preferred Stockholder of this Agreement and each such other
agreement and instrument in accordance with their respective terms and
conditions will not (a) require such Preferred Stockholder to obtain any
consent, approval, authorization or action of, or make any filing with or give
any notice to, any Governmental Entity or any other person; (b) violate or
conflict with the articles of incorporation or bylaws or other organization
documents of such Preferred Stockholder, as applicable; (c) violate, conflict
with or result in the breach of any of the terms and conditions of, result in a
material modification of the effect of, otherwise cause the termination of or
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give any other contracting party the right to terminate, or constitute (or with
notice or lapse of time or both constitute) a default under, any contract or
agreement to which such Preferred Stockholder is a party or by or to which such
Preferred Stockholder is or any Preferred Shares are or may be bound or subject;
or (d) result in the creation of any Lien (as defined below) on any Preferred
Shares.
(b) Title to the Preferred Shares. As of the Closing Date, each
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Preferred Stockholder shall own beneficially and of record, free and clear of
any Lien, and shall have full power and authority to convey free and clear of
any Lien, its Preferred Shares, and, upon delivery of such Preferred Shares at
the Closing as herein provided, such Preferred Stockholder will convey to the
Company good and valid title thereto, free and clear of any lien, pledge,
mortgage, deed of trust, security interest, claim, lease, license, charge,
option, right of joint refusal, easement, servitude, transfer restriction,
encumbrance or any other restriction or limitation whatsoever (each a "LIEN").
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(c) Investment Representation.
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(i) Each Preferred Stockholder is an "accredited investor,"
as defined in Regulation D under the Securities Act.
(ii) Each Preferred Stockholder understands that the
Exchange Preferred Stock has not been registered under the Securities Act or
under the securities laws of any state or other jurisdiction in reliance upon
exemptions for private offerings, and that except as set forth in the
Registration Rights Agreements, as amended by the Registration Rights
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Amendments, it is under no obligation to do so. Each Preferred Stockholder
acknowledges and is aware that the shares of Exchange Preferred Stock cannot be
resold unless they are registered under the Securities Act and any applicable
state securities law, or an exemption from registration is available.
(iii) Each Preferred Shareholder represents that the
Exchange Preferred Stock is being acquired solely for its own account, for
investment and not with a view to or for the resale, distribution, subdivision,
or fractionalization thereof.
Section 2.2 Representations and Warranties of the Company. The
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Company represents and warrants to each Preferred Stockholder as follows:
(a) Due Incorporation and Authority. The Company is a corporation
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duly organized, validly existing and in good standing under the laws of the
State of Georgia and has all requisite corporate power and lawful authority to
own, lease and operate its properties and to carry on its business as now being
and heretofore conducted.
(b) Authority and Validity of Agreement. The Company has the requisite
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power and authority to enter into this Agreement, the Registration Rights
Amendments, the Warrant Amendments, the Amended and Restated Stockholders'
Agreement, to be entered into on the date hereof by and among the Company, Xxxxx
X. Blazer and Xxxxxxx, (the "Stockholders' Agreement"), and the Amended and
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Restated Investors' Agreement, to be entered into on the date herein, by and
among the Company, Xxxxx X. Blazer and the Preferred Stockholders, other than
Xxxxxxx (the "Investors' Agreement"), and consummate the transactions
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contemplated thereby. The execution, delivery and performance of this Agreement,
the Registration Rights Amendments, the Warrant Amendments, the Stockholders'
Agreement and the Investors' Agreement by the Company and the consummation by
the Company of the transactions contemplated thereby have been duly authorized.
This Agreement, the Registration Rights Amendments, the Warrant Amendments, the
Stockholders' Agreement and the Investors' Agreement have been duly authorized,
executed and delivered by the Company and constitute legal, valid and binding
obligations of the Company, enforceable against the Company in accordance with
their terms. The execution and delivery by the Company of this Agreement, the
Registration Rights Amendments, the Warrant Amendments, the Stockholders'
Agreement and the Investors' Agreement and each and every other agreement and
instrument contemplated thereby, the consummation of the transactions
contemplated thereby and the performance by the Company of this Agreement, the
Registration Rights Amendment, the Warrant Amendments, the Stockholders'
Agreement and the Investors' Agreement and each such other agreement and
instrument, in accordance with their respective terms and conditions, will not
(a) violate any provision of the Articles of Incorporation, as amended, or By-
laws (or comparable instruments) of the Company; (b) require the Company to
obtain any consent, approval, authorization or action of, or make any filing
with or give any notice to, any Governmental Entity or any other person; or (c)
violate, conflict with or result in the breach of any of the terms and
conditions of, result in a material modification of the effect of, otherwise
cause the termination of or give any other contracting party the right to
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terminate, or constitute (or with notice or lapse of time or both constitute) a
default under, any contract or agreement to which the Company is a party or by
or to which the Company is or may be bound or subject.
(c) Capitalization of the Company.
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(i) Immediately prior to the transactions contemplated
hereby, the authorized capital stock of the Company consists of: 22,000,000
shares of Class A Common Stock, of which as of the date hereof, 4,159,253 shares
are issued and outstanding; 3,000,000 shares of Class B Common Stock, no par
value ("CLASS B COMMON STOCK"), of which as of the date hereof, 2,050,701 shares
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are issued and outstanding; and 3,000,000 shares of Preferred Stock, of which as
of the date hereof, 1,222,221 shares have been issued in series designated as
the Series A Redeemable Convertible Preferred Stock, and are issued and
outstanding. (The Class A Common Stock and the Class B Common Stock are herein
sometimes collectively referred to as the "COMPANY COMMON STOCK" and the
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Preferred Stock is sometimes referred to as the "COMPANY PREFERRED STOCK".) All
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of the issued and outstanding shares of Company Common Stock and Company
Preferred Stock have been duly authorized, validly issued and are fully paid,
nonassessable and free of preemptive rights, except as set forth in the Company
Disclosure Schedule. As the date hereof, approximately 434,200 shares of Class A
Common Stock are reserved for issuance and issuable upon or otherwise
deliverable in connection with the exercise of outstanding options to purchase
Class A Common Stock ("COMPANY OPTIONS") issued pursuant to the Company Plans
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and 833,611 shares of Class A Common Stock are reserved for issuance and
issuable upon or otherwise deliverable in connection with the exercise of
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outstanding warrants to purchase Class A Common Stock ("COMPANY WARRANTS").
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Except as described in the Company Filed SEC Reports and as disclosed in Section
3.2(a) of the Company Disclosure Schedule, as of the date hereof, since January
31, 1996 no shares of the Company's capital stock have been issued other than
pursuant to the exercise of Company Options already in existence on such date,
and, except as set forth in the Company Disclosure Schedule, since January 31,
1996, no stock options have been granted by the Company. Except as set forth
above or in Section 3.2(a) of the Company Disclosure Schedule, as of the date
hereof, there are outstanding no shares of capital stock or other voting
securities of the Company, no securities of the Company or any Company
Subsidiary convertible into or exchangeable for shares of capital stock or
voting securities of the Company, no options, warrants or other rights to
acquire from the Company or any Company Subsidiary, and no obligations of the
Company or any Company Subsidiary to issue, any capital stock, voting securities
or securities convertible into or exchangeable for capital stock or voting
securities of the Company, no equity equivalents, interests in the ownership or
earnings of the Company or any Company Subsidiary or other similar rights
(including stock appreciation rights) (the items listed in subclauses (i), (ii),
(iii) and (iv) being referred to, collectively, as "COMPANY SECURITIES") and (v)
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no obligations of the Company or any Company Subsidiary to repurchase, redeem or
otherwise acquire any Company Securities. Except as set forth in Section 3.2(a)
of the Company Disclosure Schedule, there are no shareholder agreements, voting
trusts or other agreements or understandings to which the Company is a party or
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to which it is bound relating to the voting or registration of any shares of
capital stock of the Company. The Company has not taken any action that would
result in any Company Stock Options that are unvested becoming vested in
connection with or as a result of the execution and delivery of this Agreement
or the consummation of the transactions contemplated hereby.
(ii) The Class A Common Stock constitutes the only
class of securities of the Company or any Company Subsidiary registered or
required to be registered under the Securities Exchange Act of 1934, as amended
(the "EXCHANGE ACT").
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(d) Exchange Preferred Validly Issued. The Exchange Preferred Stock to
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be issued by the Company to the Preferred Stockholders pursuant to this
Agreement upon the Exchange will be duly and validly issued, fully paid and non-
accessible.
(e) Articles of Amendment. The Articles of Amendment have been
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approved by the Board of Directors and have been or will be filed with the
Secretary of State of the State of Georgia.
(f) Closing of Transaction Agreement. The transactions described in
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the Transaction Agreement have been consummated.
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ARTICLE 3
COVENANTS AND AGREEMENTS
Section 3.1 Incorporation of Covenants by Reference. The following
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provisions from the Purchase Agreements shall be incorporated herein by
reference, along with any relevant definitions set forth in Section 3 of the
Purchase Agreements, and shall apply, mutatis mutandis, to the Company, the
Preferred Stockholders, and the Exchange Preferred Stock (as the case may be):
(a) Section 6;
(b) Section 7.2;
(c) Section 7.3;
(d) Section 7.4;
(e) Section 7.5;
(f) Section 7.6;
(g) Section 7.7;
(h) Section 7.10;
(i) Section 7.13;
(j) Section 7.14; and
(k) Section 7.15.
Section 3.2 Termination of Purchase Agreements. Upon and following the
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Closing, each of the Purchase Agreements and the terms and provisions therein,
other than Sections 10 and 12 of each Purchase Agreement, shall be terminated
and thereafter cease to have any force or effect.
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Section 3.3 Transactions with Affiliates. From the date hereof until
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the later of the time that (x) no Exchange Preferred Stock or Warrants are
outstanding and (y) the Xxxxxxx Holders and their Affiliates cease to hold,
directly or indirectly, Exchange Preferred Stock, Warrants and Conversion Shares
representing at least fifty percent (50%) of the number of Conversion Shares
represented by the Exchange Preferred Stock and the Warrants held by Xxxxxxx on
the date hereof (after giving effect to the Exchange), except with the prior
written consent of Xxxxxxx, the Company will not, and will not permit any
Subsidiary to, directly or indirectly, enter into any material transaction or
agreement (including, without limitation, the purchase, sale, distribution,
lease or exchange of any property or the rendering of any service) with or for
the benefit of any Affiliate of the Company or of any Subsidiary, unless such
transaction or agreement is approved by the Outside Directors, believing in good
faith that the approval is in the best interest of the Company taking into
account all facts and circumstances; provided, however, that this Section 3.3
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shall not limit, or be applicable to, (i) the payment of salaries, bonuses or
other employee compensation to employees of the Company or any Subsidiary at a
rate and in a manner consistent with the Company's past practices, (ii) the
payment of reasonable and customary regular fees to directors who are not
employees of the Company consistent with the Company's past practices and (iii)
transactions contemplated by this Agreement, by the Transaction Agreement, and
by the other agreements described in the Transaction Agreement. For purposes of
determining the percentage of Conversion Shares held by Xxxxxxx and their
Affiliates pursuant to this Section 3.3, the Warrants shall be deemed to include
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the Performance Warrants (as originally defined in the Share and Warrant
Purchase Agreement between Xxxxxxx and the Company) if the Performance Warrants
are exercisable at the time such determination is made.
For purposes of this Section 3.3 the following terms shall have the
following meanings:
"Affiliate", when used with respect to any person, means (i) if such Person
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is a corporation, any officer or director thereof (other than a director elected
pursuant to Section 4(c) of the Articles of Amendment) and any Person which is,
directly or indirectly, the beneficial owner (by itself or as part of any group)
of more than five percent (5%) of any class of any equity security (within the
meaning of the Securities Exchange Act) thereof, and, if such beneficial owner
is a partnership, any general partner thereof, or if such beneficial owner is a
corporation, any Person controlling, controlled by or under common control with
such beneficial owner, or any officer or director of such beneficial owner or of
any corporation occupying any such control relationship, (ii) if such Person is
a partnership, any general or limited partner thereof, and (iii) any other
Person which, directly or indirectly, controls or is controlled by or is under
common control with such Person. For purposes of this definition, "control"
(including the correlative terms "controlling", "controlled by" and "under
common control with"), with respect to any Person, shall mean possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of such Person, whether through the ownership of voting
securities or by contract or otherwise. The holding of Preferred Shares,
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Warrants or Performance Warrants (or of Conversion Shares obtained upon
conversion of Preferred Shares or exercise of Warrants or Performance Warrants),
and the rights under the Exchange Agreement or under the Articles of
Incorporation, the Warrant Certificates, the Performance Warrant Certificates,
or the Stockholders' Agreements (or the exercise of any such rights, including,
without limitation, sending an observer to Board or committee meetings of the
Company), shall not cause any Person to be deemed to be an "Affiliate" of the
Company or of any Subsidiary.
"Conversion Shares" means those shares of Class A Common Stock obtainable
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upon conversion of Exchange Preferred Stock or exercise of Warrants and shall
also include any capital stock or other securities into which Conversion Shares
are changed and any capital stock or other securities resulting from or
comprising a reclassification, combination or subdivision of, or a stock
dividend on, any Conversion Shares. In the event that any Conversion Shares are
sold either in a public offering pursuant to a registration statement under the
Securities Act or pursuant to a Rule 144 Transaction, then the transferees of
such Conversion Shares shall not be entitled to any benefits under this
Agreement with respect to such Conversion Shares.
"Outside Directors" means those directors on the Company's Board of
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Directors at any time who are not otherwise Affiliates of or employed by the
Company, and who do not have a financial interest (or serve as directors,
officers, employees, or agents of an entity that has a financial interest)
adverse to the Company in the transaction or matter under consideration;
provided, however, that any director who is an Affiliate solely because such
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person is a director and who is not otherwise employed by the Company shall be
considered to be an Outside Director.
"Person" or "person" means an individual, corporation, partnership, firm,
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association, joint venture, trust, unincorporated organization, government,
governmental body, agency, political subdivision or other entity.
"Rule 144" means (i) Rule 144 under the Securities Act as such Rule is in
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effect from time to time and (ii) any successor rule, regulation or law, as in
effect from time to time.
"Rule 144 Transaction" means a transfer of Conversion Shares (A) complying
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with Rule 144 as such Rule is in effect on the date of such transfer (but not
including a sale other than pursuant to "brokers' transactions" as defined in
clauses (1) and (2) of paragraph (g) of such Rule as in effect on the date
hereof) and (B) occurring at a time when Conversion Shares are registered
pursuant to Section 12 of the Securities Exchange Act.
"Securities Act" means the Securities Act of 1933, as amended, and the
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rules, regulations and interpretations thereunder.
"Subsidiary", with respect to any Person, means any corporation,
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association or other entity of which more than 50% of the total voting power of
shares of stock or other equity interests (without regard to the occurrence of
any contingency) to vote in the election of directors, managers or trustees
thereof is, at the time as of which any determination is being made, owned or
controlled, directly or indirectly, by such Person or one or more of its
Subsidiaries, or both. The term "Subsidiary" or "Subsidiaries" when
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used herein without reference to any particular Person, means a Subsidiary or
Subsidiaries of the Company.
Section 3.4 Publicity. The parties agree that no publicity release or
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announcement concerning this Agreement shall be made without advance approval
thereof by Newco; provided, however, nothing in this Section 3.4 shall prohibit
any party from making a disclosure which its counsel deems necessary or
advisable in order to satisfy such party's disclosure obligation imposed by law
or rules of the principal trading market in which such party's securities may be
traded.
Section 3.5 Expenses. Except as otherwise provided herein, the Company
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shall bear all reasonable expenses incurred in connection with the preparation,
execution and performance of this Agreement, including all transfer taxes and
all reasonable fees and expenses of agents, representatives, counsel and
accountants.
ARTICLE 4
CONDITIONS TO CLOSING
Section 4.1 Conditions to the Obligation of Parties to Close. The
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obligations of the Company and each Preferred Stockholder to consummate the
Closing is subject to the satisfaction or waiver by the relevant party of the
conditions contained in the Transaction Agreement (and the consummation of the
transactions therein) and this Agreement.
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Section 4.2 Conditions to the Obligation of the Preferred Stockholders
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to Close. The obligations of each Preferred Stockholder to consummate the
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Closing is subject to the following conditions, which may be waived by each
Preferred Stockholder:
(i) that the representations and warranties of the Company
contained in this Agreement shall be true on and as of the Closing Date with the
same force and effect as though made on and as of the Closing Date;
(ii) the Company shall have performed and complied with all
covenants and agreements required by this Agreement to be performed or complied
with by it on or prior to the Closing Date;
(iii) the Company shall have delivered to such Preferred
Stockholder a certificate, dated the date of the Closing and signed by the
Company, to the foregoing effect;
(iv) the Company shall have entered into Registration
Rights Amendments with each of the Preferred Stockholders;
(v) the Company shall have entered into the Amended and
Restated Stockholders' Agreement;
(vi) the Company shall have entered into the Amended and
Restated Investors' Agreement;
(vii) the Company shall have executed a Warrant Amendment
between it and each of the Preferred Stockholders;
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(viii) the Articles of Amendment shall have been filed with
Secretary of State of the State of Georgia; and
(ix) the opinion of Xxxxxx & Bird, counsel to the Company, in
a form acceptable to the Preferred Stockholders, shall have been delivered to
the Preferred Stockholders.
Section 4.3 Conditions Precedent to the Obligation of the Company to
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Close. The obligation of the Company to consummate the Closing is subject to the
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fulfillment of the following conditions, which may be waived by the Company, (i)
that the representations and warranties of each Preferred Stockholder contained
in this Agreement shall be true on and as of the Closing Date with the same
force and effect as though made on and as of the Closing Date; and (ii) each
Preferred Stockholder shall have performed and complied with all covenants and
agreements required by this Agreement to be performed or complied with by it on
or prior to the Closing Date.
Section 4.4 Survival of Representations and Warranties After Closing.
--------------------------------------------------------
Each party has the right to rely fully upon the representations, warranties,
covenants and agreements of any other party contained in this Agreement or in
any instrument or agreement delivered pursuant to this Agreement. All such
representations, warranties, covenants and agreements shall survive the
execution and delivery of this Agreement and the Closing hereunder.
20
ARTICLE 5
MISCELLANEOUS
Section 5.1 Further Assurances. Each of the parties agree, at any time
------------------
and from time to time after the Closing to execute such further agreements or
instruments and take such further actions as may be reasonably required or
desirable to carry out the provisions hereof.
Section 5.2 Termination of Agreement. This Agreement may be terminated
------------------------
prior to the Closing as follows:
(a) by any party, if any one or more of the conditions to the
Transaction Agreement or this Agreement, that is not within the control of that
party, has not been fulfilled as of the scheduled Closing Date;
(b) at the election of any Preferred Stockholder, if the
Company has breached any material representation, warranty, covenant or
agreement contained in this Agreement, which breach cannot be or is not cured by
the Closing Date;
(c) at the election of the Company, if any Preferred
Stockholder has breached any material representation, warranty, covenant or
agreement contained in this Agreement, which breach cannot be or is not cured by
the Closing Date; or
(d) at any time on or prior to the Closing Date, by mutual
written consent of the Preferred Stockholders and the Company.
21
If this Agreement so terminates, it shall become null and void and
have no further force or effect.
Section 5.3 Notices. Any notice or other communication required or
-------
permitted hereunder shall be in writing and shall be delivered personally, sent
by facsimile transmission or sent by certified, registered or express mail,
postage prepaid. Any such notice shall be deemed given when so delivered
personally, or sent by facsimile transmission or, if mailed, five days after the
date of deposit in the United States mails, as follows:
(i) if to the Company, to:
Harry's Farmers Market, Inc.
0000 Xxxxx Xxxxxxx Xxxx
Xxxxxxx, XX 00000
Attention: Xxxxx X. Blazer
Telephone:(000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
Xxxxxx & Bird
One Atlantic Center
0000 X. Xxxxxxxxx Xxxx, X.X.
Xxxxxxx, XX 00000-0000
Attention: Xxxx X. Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(ii) if to the Preferred Stockholders, to the
address set forth in Schedule I hereto.
Any party may by notice given in accordance with this section to the other
parties designate another address or person for receipt of notices hereunder.
22
Section 5.4 Entire Agreement. This Agreement other agreements entered
----------------
into between or among any or all of the Preferred Stockholders and the Company,
and the Articles of Incorporation contain the entire agreement among the parties
with respect to the subject matter herein and supersede all prior agreements,
written or oral, with respect thereto.
Section 5.5 Waivers and Amendments; Non-Contractual Remedies;
------------------------------------------------
Preservation of Remedies. This Agreement may be amended, superseded, canceled,
------------------------
renewed or extended, and the terms hereof may be waived, only by a written
instrument signed by the Company and the Preferred Stockholders or relevant
Preferred Stockholder or, in the case of a waiver, by the party waiving
compliance. No delay on the part of any party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof, nor shall any waiver on
the part of any party of any such right, power or privilege, nor any single or
partial exercise of any such right, power or privilege, preclude any further
exercise thereof or the exercise of any other such right, power or privilege.
The rights and remedies herein provided are cumulative and are not exclusive of
any rights or remedies that any party may otherwise have at law or in equity.
The rights and remedies of any party based upon, arising out of or otherwise in
respect of any inaccuracy in or breach of any representation, warranty, covenant
or agreement contained in this Agreement or any agreement or instrument pursuant
to this Agreement shall in no way be limited by the fact that the act, omission,
occurrence or other state of facts upon which any claim of any such inaccuracy
or breach is based may also be the subject matter of any other representation,
23
warranty, covenant or agreement contained in this Agreement or any agreement or
instrument delivered pursuant to this Agreement (or in any other agreement
between the parties) as to which there is no inaccuracy or breach.
Section 5.6 Governing Law. This Agreement shall be governed and
-------------
construed in accordance with the laws of the State of New York applicable to
agreements made and to be performed entirely within such State.
Section 5.7 Binding Effect; Assignment. This Agreement shall be
--------------------------
binding upon and inure to the benefit of the parties and their respective
successors and legal representatives. This Agreement is not assignable except by
operation of law, except that the Company may assign its rights hereunder to any
successor to all or substantially all of its business or assets.
Section 5.8 Usage. All pronouns and any variations thereof refer to
-----
the masculine, feminine or neuter, singular or plural, as the context may
require. All terms defined in this Agreement in their singular or plural forms
have correlative meanings when used herein in their plural or singular forms,
respectively. Unless otherwise expressly provided, the words "include,"
"includes" and "including" do not limit the preceding words or terms and shall
be deemed to be followed by the words "without limitation."
Section 5.9 Counterparts. This Agreement 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 shall together
24
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.
Section 5.10 Headings. The headings in this Agreement are for
--------
reference only, and shall not affect the interpretation of this Agreement.
Section 5.11 Severability of Provisions.
--------------------------
(a) If any provision or any portion of any provision of this
Agreement shall be held invalid or unenforceable, the remaining portion of such
provision and the remaining provisions of this Agreement shall not be affected
thereby.
(b) If the application of any provision or any portion of any
provision of this Agreement to any person or circumstance shall be held invalid
or unenforceable, the application of such provision or portion of such provision
to persons or circumstances other than those as to which it is held invalid or
unenforceable shall not be affected thereby.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
date first above written.
HARRY'S FARMERS MARKET, INC.
By /s/ Xxxxx X. Blazer
---------------------------------
Name: Xxxxx X. Blazer
Title: President
XXXXXX XXXXXXX NOMINEES LTD.
By /s/ Xxxxxxxx Xxxxx
---------------------------------
Name: Xxxxxxxx Xxxxx
Title: Authorized Signatory
AXA EQUITY AND LAW LIFE
ASSURANCE SOCIETY
By /s/ X. Xxxxxx
---------------------------------
Name: X. Xxxxxx
Title: Associate Director
ORBIS PENSION TRUSTEES LTD.
By /s/ Xxxxx X. Xxxxx
---------------------------------
Name: Xxxxx X. Xxxxx
Title: Investing Manager
ASHFORD CAPITAL PARTNERS, L.P.
By: Ashcap Corp., General Partner
By /s/ Xxxxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: President, Ashcap Corp.
/s/ Xxxxxxxx X. Xxxxxxx
---------------------------------
Xxxxxxxx X. Xxxxxxx
PREFERRED STOCK EXCHANGE AGREEMENT
----------------------------------
SCHEDULE 1
----------
Class A Class A Common
Common Shares Shares Subject to
Number of Subject to Performance
Preferred Shares Warrants Warrants
---------------- ------------- ------------------
Xxxxxx Xxxxxxx Nominees Ltd. 888,888 30,000 44,444
c/x Xxxxxxx Capital Management
1245 Avenue of the Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attn: Xxxxx Xxxxxxx
Xxxxxxxxxxx Xxxxx
AXA Equity & Law Life 166,667 56,250 8,333
Assurance Society
00 Xxxxxxx'x Xxx Xxxxxx
Xxxxxx XX0X 0XX
Xxxxxxx
Fax: 000-00-00-000-0000
Attn: Xxxx Xxxxxx
Orbis Pension Trustees Ltd. 111,111 37,500 5,556
c/o Chatsworth Management
Services, Ltd.
Xxx Xxxxxxxxx Xxxxx
Xxxxxx X0 0XX
Xxxxxxx
Fax: 000-00-00-000-0000
Attn: Xxxxx Xxxxx
Ashford Capital Partners, L.P. 44,444 15,000 2,222
0000 Xxxxxxx Xxxx
Xxxxx X-000
Xxxxxxxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
Attn: Xxxxxxxx Xxxxxxx
Xxxxxxxx X. Xxxxxxx 11,111 3,750 556
c/o Ashford Capital Partners, L.P.
0000 Xxxxxxx Xxxx
Xxxxx X-000
Xxxxxxxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
PREFERRED STOCK EXCHANGE AGREEMENT
----------------------------------
EXHIBIT A
---------
[Form of Registration Rights Amendment]
EXHIBIT A-1
AMENDMENT TO REGISTRATION RIGHTS AGREEMENT
WITH XXXXXX XXXXXXX NOMINEES, LTD.
AMENDMENT TO
REGISTRATION RIGHTS AGREEMENT
This AMENDMENT TO REGISTRATION RIGHTS AGREEMENT (this "Amendment") is
dated as of January , 1997, by and among Harry's Farmers Market, Inc., a
---
Georgia Corporation (the "Company"), and Xxxxxx Xxxxxxx Ltd., an English company
-------
(the "Xxxxxxx Investors").
W I T N E S S E T H:
-------------------
WHEREAS, the Company and the Xxxxxxx Investors entered into that
Registration Rights Agreement dated December 30, 1994 (the "Registration Rights
-------------------
Agreement"); and
---------
WHEREAS, pursuant to the terms of that Preferred Stock Exchange
Agreement of even date herewith between, among others, the Company and the
Xxxxxxx Investors (the "Exchange Amendment"), the Xxxxxxx Investors have agreed
------------------
that upon the consummation of the transactions set forth in that Transaction
Agreement of even date herewith between the Company and HFMI Acquisition
Corporation, a Delaware corporation ("Newco"), to exchange each share of Series
A Preferred Stock held by the Xxxxxxx Investors for one share of Series AA
Preferred Stock, stated value $9 per share, of the Company (the "AA Preferred
------------
Stock"), and to amend the terms of the Registration Rights Agreement as provided
-----
herein.
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Capitalized terms used herein and not otherwise defined
shall have the meaning given such terms in the Registration Rights Agreement;
provided, however, the definitions of "Preferred Stock" and "Purchase Agreement"
shall be deleted in their entirety and replaced with the following:
"'Preferred Stock' means the Company's Series AA Preferred
---------------
Stock, stated value $9 per share, which Preferred Stock is convertible into
Shares of Class A Common Stock.
"Purchase Agreement" means, as applicable, for purposes of
------------------
Preferred Stock, the Preferred Stock Exchange Agreement dated January 31, 1997
between the Company and each of the persons listed on Schedule 1 hereto (the
"Investors") and for purpose of the Warrants, collectively the separate Share
---------
and Warrant Purchase Agreements, dated as of December 30, 1994 between the
Company and each of the Investors."
2. The reference to "sixty (60)" in the first sentence of
Section 1.2(b) of the Registration Rights Agreement is hereby deleted and
replaced with "ninety (90)".
1
3. The Xxxxxxx Investors agree that for purposes of Article I
only, as to any particular Registrable Securities, such securities shall cease
to be Registrable Securities when such securities are permitted to be sold
pursuant to Rule 144(k) (or any successor provision to such Rule) under the
Securities Act.
4. The definition of Registrable Securities shall be deemed to
include any shares of Class A Common Stock issued to the Xxxxxxx Investors
pursuant to that put right set forth in Section 3 of that Amended and Restated
Stockholders' Agreement of even date herewith.
5. Except as set forth herein, the terms of the Registration
Rights Agreement shall remain in full force and effect.
* * * *
2
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed as of the date first above written.
HARRY'S FARMERS MARKET, INC.
By:
-----------------------------
Name:
Title:
XXXXXX XXXXXXX NOMINEES LTD.
By:
-----------------------------
Name:
Title:
3
EXHIBIT A-2
AMENDMENT TO REGISTRATION RIGHTS AGREEMENT
WITH THE INVESTORS PARTY THERETO
AMENDMENT TO
REGISTRATION RIGHTS AGREEMENT
This AMENDMENT TO REGISTRATION RIGHTS AGREEMENT (this "Amendment") is
dated as of January , 1997, by and among Harry's Farmers Market, Inc., a
---
Georgia corporation (the "Company"), and each owner of securities of the Company
-------
listed on the signature page hereto (the "Investors").
W I T N E S S E T H:
WHEREAS, the Company and each of the Investors entered into that
Registration Rights Agreement dated December 30, 1994 (the "Registration Rights
--------------------
Agreement"); and
---------
WHEREAS, pursuant to the terms of that Preferred Stock Exchange
Agreement of even date herewith between the Company, the Investors and Xxxxxx
Xxxxxxx Nominees Ltd. (the "Exchange Amendment"), the Investors have agreed that
-------- ---------
upon the consummation of the transactions set forth in that Transaction
Agreement of even date herewith between the Company and HFMI Acquisition
Corporation, a Delaware corporation ("Newco"), to exchange each share of Series
A Preferred Stock held by each Investor for one share of Series AA Preferred
Stock, stated value $9 per share, of the Company (the "AA Preferred Stock"), and
------------------
to amend the terms of the Registration Rights Agreement as provided herein.
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Capitalized terms used herein and not otherwise defined
shall have the meaning given such terms in the Registration Rights Agreement;
provided, however, the definitions of "Preferred Stock" and "Purchase Agreement"
shall be deleted in their entirety and replaced with the following:
"'Preferred Stock' means the Company's Series AA Preferred
---------------
Stock, stated value $9 per share, which Preferred Stock is convertible into
Shares of Class A Common Stock.
"Purchase Agreement" means, as applicable, for purposes of the
------------------
Preferred Stock, the Preferred Stock Exchange Agreement dated January 31, 1997
between the Company and each of the persons listed on Schedule 1 thereto (the
"Investors") and for purpose of the Warrants, collectively the separate Share
---------
and Warrant Purchase Agreements, dated as of December 30, 1994 between the
Company and each of the Investors."
2. Except as set forth herein, the terms of the Registration
Rights Agreement shall remain in full force and effect.
* * * *
1
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed as of the date first above written.
HARRY'S FARMERS MARKET, INC.
By:
----------------------------------
Name:
Title:
AXA EQUITY & LAW LIFE ASSURANCE
SOCIETY
By:
----------------------------------
Xxxxxxx X. Xxxxxx
Associate Director
AXA Equity & Law Investment
Managers, Ltd.
ORBIS PENSION TRUSTEES LTD.
By:
----------------------------------
Xxxxx X. Xxxxx
Investment Manager
ASHFORD CAPITAL PARTNERS, L.P.
By: Ashcap Corp., General Partner
By:
-----------------------------
Xxxxxxxx X. Xxxxxxx
President
-------------------------------------
Xxxxxxxx X.Xxxxxxx
2
PREFERRED STOCK EXCHANGE AGREEMENT
----------------------------------
SCHEDULE 3.1(i)
---------------
Since January 31, 1996, the Company has granted options to acquire an aggregate
of 501,900 shares of Class A Common Stock.
COMPANY DISCLOSURE SCHEDULE
---------------------------
SECTION 3.1(a)
--------------
Company Subsidiary Ownership by the Company
------------------ ------------------------
Marthasville Trading Company, Inc. 100%
Karalea, Inc. 100%
Roman Properties, Inc. 100%
SECTION 3.2(a)
--------------
The Company has granted preemptive rights of first refusal pursuant to the
Stockholders' Agreement with Xxxxx X. Blazer and Xxxxxx Xxxxxxx Nominees Ltd.,
dated as of December 30, 1994, and the Investors' Agreement with Xxxxx X.
Blazer, AXA Equity & Law Life Assurance Society, Orbis Pension Trustees Ltd.,
Ashford Capital Partners, L.P., and Xxxxxxxx X. Xxxxxxx, dated as of
December 30, 1994.
-------------------------------------------------------------------------------------------------
Person Common Exercis- Common A Exercise
A shares able shares price in $
subject to subject to per share
Options Warrants
-------------------------------------------------------------------------------------------------
Xxxxxx Xxxxxxx Nominees Ltd. -- -- 30,000 10.00
44,444 0.01
-------------------------------------------------------------------------------------------------
AXA Equity & Law Life Assurance -- -- 56,350 10.00
Society 8,333 0.01
-------------------------------------------------------------------------------------------------
Orbis Pension Trustees Ltd. -- -- 37,500 10.00
5,556 0.01
-------------------------------------------------------------------------------------------------
Ashford Capital Partners, L.P. -- -- 15,000 10.00
2,222 0.01
-------------------------------------------------------------------------------------------------
NationsBank, N.A. (South) -- -- 144,000 3.00
72,000 6.00
-------------------------------------------------------------------------------------------------
CreditAnstalt-Bankverein -- -- 96,000 3.00
48,000 6.00
-------------------------------------------------------------------------------------------------
Xxxxxxxx X. Xxxxxxx 3,750 10.00
556 0.01
-------------------------------------------------------------------------------------------------
All employees as a group 294,200 89,312 -- 6.00
-------------------------------------------------------------------------------------------------
Xxxxx X. Xxxxxx 30,000 20,000 -- 3.00
-------------------------------------------------------------------------------------------------
Xxxxxx X. Xxxxxxxx 80,000 70,000 -- 3.00
-------------------------------------------------------------------------------------------------
Xxxx X. Xxxxxx 30,000 20,000 -- 3.00
-------------------------------------------------------------------------------------------------
-1-
Since January 31, 1996, the Company has adopted the 1996 Director Stock Option
Plan and the 1996 Employee Stock Purchase Plan and has reserved an aggregate of
500,000 shares of Class A Common Stock for issuance under such Plans.
Since January 31, 1996, the Company has granted options to acquire 501,900
shares of Class A Common Stock.
On January 30, 1997, the Company issued to Xx. Xxxxxxx X. Xxxxxxx 41,380 shares
of Class A Common Stock in payment for services rendered to the Company pursuant
to a consulting agreement of January 7, 1997.
On January 31, 1997, the Company granted to Xxxxxx X. Xxxxxxxx an option to
acquire 50,000 shares of Class A Common Stock at $3.00 per share.
Under certain conditions, the Class B Common Stock of the Company is convertible
into Class A Common Stock.
The Series A Preferred Stock of the Company is convertible into Class A Common
Stock.
The Company (i) may incur obligations to issue, sell, repurchase, redeem,
acquire or otherwise cash-out Company Securities, and (ii) is a party to
agreements with respect to voting or registration of its capital stock, pursuant
to the following agreements and instruments:
. The Company is a party to a Share and Warrant Purchase Agreement with each of
Xxxxxx Xxxxxxx Nominees Ltd., AXA Equity & Law Life Assurance Society, Orbis
Pension Trustees Ltd., Ashford Capital Partners, L.P., and Xxxxxxxx X.
Xxxxxxx, each dated as of December 30, 1994.
. Warrant Certificate delivered by the Company to each of Xxxxxx Xxxxxxx
Nominees Ltd., AXA Equity & Law Life Assurance Society, Orbis Pension
Trustees Ltd., Ashford Capital Partners, L.P., and Xxxxxxxx X. Xxxxxxx, each
dated as of December 30, 1994.
. Performance Warrant Certificate delivered by the Company to each of Xxxxxx
Xxxxxxx Nominees Ltd., AXA Equity & Law Life Assurance Society, Orbis Pension
Trustees Ltd., Ashford Capital Partners, L.P., and Xxxxxxxx X. Xxxxxxx, each
dated as of December 30, 1994.
. The Company is a party to a Stockholders' Agreement with Xxxxx X. Blazer and
Xxxxxx Xxxxxxx Nominees Ltd., dated as of December 30, 1994.
. The Company is party to a Investors' Agreement with Xxxxx X. Blazer, AXA
Equity & Law Life Assurance Society, Orbis Pension Trustees Ltd., Ashford
Capital Partners, L.P., and Xxxxxxxx X. Xxxxxxx, dated as of December 30,
1994.
-2-
. The Company is a party to a Registration Rights Agreement with Xxxxxx Xxxxxxx
Nominees Ltd., dated as of December 30, 1994.
. The Company is a party to a Registration Rights Agreement with AXA Equity &
Law Life Assurance Society, Orbis Pension Trustees Ltd., Ashford Capital
Partners, L.P., and Xxxxxxxx X. Xxxxxxx, dated as of December 30, 1994.
. The Company is a party to an Amended and Restated Warrant Agreement with
Nationsbank, N.A. (South) and CreditAnstalt-Bankverein, dated as of May 8,
1996.
. Amended and Restated Warrant Certificate delivered by the Company to each of
Nationsbank N.A. (South) and CreditAnstalt-Bankverein, dated as of December
30, 1994.
. Warrant Certificate delivered by the Company to each of Nationsbank N.A.
(South) and CreditAnstalt-Bankverein, dated as of May 8, 1996.
. The Company's 1996 Employee Stock Purchase Plan and the enrollment/
participation agreements entered into in connection therewith prior to and
subsequent to January 31, 1996.
. The Company's Management Incentive Plan and the options agreements entered
into in connection therewith prior to and subsequent to January 31, 1996.
. The Company's Outside Directors Incentive Plan and the option agreements
entered into in connection therewith.
SECTION 3.2(b)
--------------
All of the outstanding capital stock of Roman Properties, Inc. has been pledged
to Nationsbank N.A. (South) and CreditAnstalt-Bankverein.
SECTION 3.6
-----------
The execution, delivery and performance of the Agreement and the consummation of
the transactions contemplated by the Company will constitute a breach of the
Amended and Restated Credit Agreement among the Company, Nationsbank N.A.
(South) and CreditAnstalt-Bankverein and the agreements entered into in
connection therewith.
-3-
SECTION 3.8
-----------
In October 1996, the Company entered into an Exclusive Rental Listing Agreement
with Lincoln Property Company to lease or sell a portion of the Northfield Way
bakery facility.
In December 1996, the Company entered into a Business License with D&B No. 3 for
rental of the Southlake Warehouse facility.
On December 19, 1996, the Company entered into a Lease Agreement and Option to
Purchase with Colonial Pacific Leasing for the lease of pasta machines.
In December, 1996, the Company entered into an oral agreement with Xxxxxxxx
Construction Corporation for renovation of the restroom facilities at the
Alpharetta location. Construction cost is estimated at $46,117.
On January 7, 1997, the Company entered into an agreement with Xxxxxxx X.
Xxxxxxx to provide consulting services to the Company in exchange for
compensation equal to $150,000 payable in shares of the Company's Class A Common
Stock.
Since January 31, 1996, the Company has agreed to grant Xx. Xxxxxxxx an option
to purchase 50,000 shares of the Company's Class A Common Stock at an exercise
price of $3.00 per share.
Since January 31, 1996, the Company has adopted a short term disability plan,
the 1996 Employee Stock Purchase Plan, the 1996 Outside Director Incentive Plan
and a plan to subsidize employee health club membership with Sportslife.
Since January 31, 1996, the annual base salary of Mr. Blazer has been increased
to $200,000.
On March 13, 1996, the Company sold a portion of its property owned in Gwinnett
County, Georgia to Hi Fi Buys, Inc. at a purchase price of $660,000.00.
On June 17, 1996, the Company sold its Brentwood, Tennessee property to
Springvest Associates, Limited Partnership at a purchase price of $4,600,000.00.
On December 31, 1996, the Company sold to its wholly-owned subsidiary, Roman
Properties, Inc. ("RPI"), a 19.44 acre plot of land and the 151,255 square feet
warehouse situated thereon at a nominal purchase price. Roman Properties, Inc.
refinanced the property through a mortgage from Nationwide Life Insurance
Company and West Coast Life Insurance Company (collectively "Nationwide") for
$2,700,000.00 and leases it back to the Company under a lease agreement dated
December 27, 1996. In connection with this transaction, among other things, the
Company has delivered an indemnity and guaranty agreement to and for the benefit
of Nationwide. In addition, RPI has delivered various indemnity agreements to
and for the benefit of Nationwide, has assigned all leases
-4-
and rents to Nationwide, and has delivered a real estate note to Nationwide in
the principal amount of $2,700,000.
SECTION 3.9
-----------
Harry's Farmers Market, Inc., a Georgia corporation v. Xxxxxx Xxxx and
----------------------------------------------------------------------
Xxxx-Xxxxx Xxxxxx, d/b/a Pomp Duck & Circumstance; Civil Action File No.
-------------------------------------------------
E-49925; Superior Court of Xxxxxx County, State of Georgia
Xxxxx Xxxxxx Insurance Agency, Inc. v. Harry's Farmers Market, Inc.; Civil
-------------------------------------------------------------------
Action File No. 96-VS-0120867A; State Court of Xxxxxx County, State of Georgia
Xxxxx Xxxxx: Xx. Xxxxx has alleged that she was injured when she allegedly
-----------
slipped and fell on June 15, 1996, at the store located in Xxxx County, Georgia.
The Company believes liability is questionable in this matter. This matter has
been turned over to the Company's insurer for appropriate handling. No lawsuit
has been filed to date.
SECTION 3.11(b)
---------------
The Company has not yet offered eligible employees an opportunity to enroll in
the Company's 401(k) Plan. Enrollment has been delayed until approximately
February 1, 1997.
The Company has granted preemptive rights of first refusal to the Stockholders'
Agreement with Xxxxx X. Blazer and Xxxxxx Xxxxxxx Nominees Ltd., dated as of
December 30, 1994, and the Investors' Agreement with Xxxxx X. Blazer, AXA Equity
& Law Life Assurance Society, Orbis Pension Trustees Ltd., Ashford Capital
Partners, L.P., and Xxxxxxxx X. Xxxxxxx, dated as of December 30, 1994.
Participants in the Company's 401(k) Plan may invest their accounts in shares
of the Company's Class A Common Stock. The Company believes that a prospectus
for the Company's shares of Class A Common Stock may not have been provided to
plan participants as they became eligible to participate in the plan or to
invest their accounts in the Company's stock.
SECTION 3.11(d)
---------------
Each of the Company's 1996 Employee Stock Purchase Plans, 1993 Management
Incentive Plan and Outside Directors Incentive Plan contain change of control
provisions.
-5-
SECTION 3.12(A)
---------------
The following environmental reports identify matters some of which may amount to
a violation or infraction of the Environmental Laws:
. Phase I Environmental Site Assessment, Satellite Boulevard and Liddel Road,
Gwinnett County, Georgia, by Xxxx Geoscience Corporation, dated April 4, 1991
. Phase I Environmental Assessment for Xxxx Crossing Shopping Center, 0000
Xxxxx Xxxxx, by Urban Testing & Environmental Services, Inc., dated April 15,
1993.
. Phase I Environmental Assessment Update for Northfield Business Center
Building 1075, by Urban Testing and Environmental Services, Inc., dated
December 9, 1996.
Also, in the ordinary course of business minimal quantities of cleaning
solvents, fluids and other cleaning chemicals and materials are stored on the
Company's premises. The Company also stores small quantities of diesel fuel to
power emergency generators. All such fuel is stored in above ground tanks. The
Company believes that all of these substances are used in material compliance
with all rules and regulations applicable to such substances.
SECTION 3.16(A)
---------------
The Company has granted a security interest in the following marks to
Nationsbank, N.A. (South), as agent, pursuant to a TradeMark Collateral
Assignment and Security Agreement, dated as of December 30, 1996:
REGISTRATION/
APPLICATION NUMBER
------------------
Harry's in a Hurry 1,850,126
Harry's Farmers Market (stylized) 1,854,765
Grainger County Home Grown Tomatoes (stylized) 74/444,331
Harry's in a Hurry 1,850,126
Harry's 74/444,333
Marthasville Creamery (and design) 74/476,219 and 1,871,456
Bear Dance (and design) 74/476,219
Harry's Old Fashioned Layer Cakes (and design) 74/501,924
The following Liens affect the real property owned by the Company and the
Company Subsidiaries:
-6-
-----------------------------------------------------------------------------------------------------------------
Location Business(es) Status Mortgagee Legal
-------- ------------ ------ --------- Description
-----------
------------------------------------------------------------------------------------------------------------------
1180 Upper Xxxxxxx Alpharetta Owned Nationsbank, Appendix A
Road Headquarters N.A. (South), as
Xxxxxxx, Xxxxxxx 00000 agent
Xxxxxx County Alpharetta Megastore
Alpharetta Prepared
Foods
Facility
------------------------------------------------------------------------------------------------------------------
0000 Xxxxxxxxxx Xxx Xxxxxxx Bakery Owned Nationwide Life Appendix B
Xxxxxxx, Xxxxxxx 00000 Facility Insurance
Xxxxxx County Company
Roswell Distribution
Center
Roswell Design
Office
------------------------------------------------------------------------------------------------------------------
2025 Satellite Pointe Duluth Megastore Owned Nationsbank, Xxxxxxxx X
Xxxxxx, Xxxxxxx 00000 N.A. (South), as
Gwinnett County agent
------------------------------------------------------------------------------------------------------------------
0000 Xxxxxxxxx Xxxxxx Harry's In A Hurry I Leased X/X X/X
Xxxxxxx, Xxxxxxx 00000
Xxxxxx County
------------------------------------------------------------------------------------------------------------------
0000 Xxxxxxx Xxxx, Xxxxx'x Xx A Hurry II Leased X/X X/X
X.X.
Xxxxxxx, Xxxxxxx 00000
Xxxxxx County
------------------------------------------------------------------------------------------------------------------
00 Xxxxxx Xxxxx Xxxx Xxxxxxxx Megastore Owned Nationsbank, Xxxxxxxx X
Xxxxxxxx, Xxxxxxx 00000 N.A. (South), as
Xxxx County agent
------------------------------------------------------------------------------------------------------------------
000 Xxxx Xxxx Residential Owned First Union Appendix E
Roswell, Georgia 30076 Mortgage Corp
Xxxxxx County
------------------------------------------------------------------------------------------------------------------
0000 Xxxxx Xxxxx Xxxxxxxxx Warehouse Leased X/X X/X
Xxxxxx, Xxxxxxx 00000
Xxxxxxx County
------------------------------------------------------------------------------------------------------------------
On March 13, 1996, the Company sold a portion of its property owned in Gwinnett
County, Georgia to Hi Fi Buys, Inc. at a purchase price of $660,000.00.
-7-
On June 17, 1996, the Company sold its Brentwood, Tennessee property to
Springvest Associates, Limited Partnership at a purchase price of $4,600,000.00.
On December 31, 1996, the Company sold to its wholly-owned subsidiary, Roman
Properties, Inc. ("RPI"), a 19.44 acre plot of land and the 151,255 square feet
warehouse situated thereon at a nominal purchase price. Roman Properties, Inc.
refinanced the property through a mortgage from Nationwide Life Insurance
Company and West Coast Life Insurance Company (collectively "Nationwide") for
$2,700,000.00 and leases it back to the Company under a lease agreement dated
December 27, 1996. In connection with this transaction, among other things, the
Company has delivered an indemnity and guaranty agreement to and for the benefit
of Nationwide. In addition, RPI has assigned all leases and rents to
Nationwide, and has delivered a real estate note to Nationwide in the principal
amount of $2,700,000.
Subject to matters of record which would be revealed by a current title search,
matters which would be revealed by a current survey of the properties and zoning
laws and ordinances affecting the real property, title exceptions, easements,
liens and other imperfections and matters relating to real property owned by the
Company or a Company Subsidiary are identified in the following title insurance
policies, a copy of each of which policies has been delivered to Newco:
. With respect to the property located in Xxxx County, Georgia, Chicago Title
Insurance Company Policy No. 11-0673-61-198, as endorsed from time to time.
. With respect to the property located in Xxxxxx County, Georgia (other than
the property located at 0000 Xxxxxxxxxx Xxx in Roswell and the property
located at 000 Xxxx Xxxx in Roswell), and Gwinnett County, Georgia, Ticor
Title Insurance Company Policy No. 11-4178-92-000032, as endorsed from time
to time.
. With respect to the property located at 0000 Xxxxxxxxxx Xxx in Roswell,
Xxxxxx County, Georgia, First American Title Insurance Company Policy No.
01191/9010, as amended by endorsements issued from time to time.
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The following Liens affect the personal property or fixtures owned or used by
the Company and the Company Subsidiaries:
Debtor: THE COMPANY
Jurisdiction: XXXXXX COUNTY
UCC Secured Party Date Type
--- ------------- ---- ----
File No.
-------
89-13610 NCC Leasing Incorporated 6/22/89 Original
91-06454 XXX Xxxxxxxxxxx Credit Service PCD4 3/25/91 Original
91-18845 SouthTrust Bank of Alabama 9/10/91 Original
91-15659 NationsBank (C&S) 8/01/91 Original
93-20698 SouthTrust Bank of Alabama 10/29/93 Partial Release
93-22616 NationsBank of Georgia 11/23/93 Original
94-11366 Sun Financial Group, Inc. 6/06/94 Original
93-06861 SouthTrust Bank of Alabama 4/12/93 Original
93-07949 SouthTrust Bank of Alabama 4/23/93 Amendment
93-09186 NationsBank of Georgia 5/10/93 Amendment
93-08809 NationsBank of Georgia 5/12/93 Original
93-16423 SouthTrust Bank of Alabama 8/13/93 Original
93-16422 SouthTrust Bank of Alabama 8/13/93 Original
93-20090 Sun Financial Group, Inc. 10/18/93 Original
93-20104 CIT Group Equipment Finance, Inc. 10/18/93 Assignment
93-22890 NationsBank of Georgia 11/23/93 Assignment
93-22894 NationsBank of Georgia 11/23/93 Amendment
93-22894 NationsBank of Georgia 11/23/93 Amendment
93-22887 NationsBank of Georgia 11/23/93 Amendment
93-22889 NationsBank of Georgia 11/23/93 Amendment
93-23799 Sun Financial Group, Inc. 12/06/93 Original
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94-04338 General Electric Capital Corp. 3/07/94 Assignment
94-04446 Sun Financial Group, Inc. 3/09/94 Original
94-04913 Toyota Motor Credit Corp. 3/15/94 Amendment
94-07898 General Electric Capital Corp. 4/11/94 Assignment
94-07866 Sun Financial Group, Inc. 4/20/94 Original
94-07867 General Electric Capital Corp. 4/29/94 Assignment
94-14350 Sun Financial Group, Inc. 7/13/94 Original
94-15328 Sun Financial Group, Inc. 7/25/94 Original
94-15195 MetLife Capital Corp. 7/26/94 Original
94-23742 Sun Financial Group, Inc. 11/14/94 Original
94-26555 Sun Financial Group, Inc. 12/19/94 Original
94-27609 NationsBank of Georgia 12/28/94 Original
90-24623 SunTrust Bank 10/03/90 LD
90-24741 SunTrust Bank 10/23/90 Original
91-15524 NationsBank (C&S) 8/01/91 LD
91-22301 Toyota Motor Credit Corp. 10/24/91 Assignment
91-22188 Atlanta Fork Lifts, Inc. 10/24/91 Original
91-24498 NationsBank (C&S) 11/22/91 Partial Release
91-24300 CIT Group Equipment Finance, Inc. 11/22/91 Assignment
91-24118 Sun Financial Group, Inc. 11/22/91 Original
91-24435 SouthTrust Bank of Alabama 11/27/91 Original
93-01665 Xxxxxxx Electric Membership Corp. 1/25/93 Original
93-06774 NationsBank of Georgia 4/09/93 Original
93-06775 NationsBank of Georgia 4/09/93 Original
93-08809 NationsBank of Georgia 5/12/93 Original
93-16771 SouthTrust Bank of Alabama 8/17/93 Amendment
93-22889 NationsBank of Georgia 11/23/93 Amendment
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93-22887 NationsBank of Georgia 11/23/93 Amendment
93-22890 NationsBank of Georgia 11/23/93 Assignment
93-09187 NationsBank of Georgia 5/10/93 Amendment
93-20699 SouthTrust Bank of Alabama 10/29/93 Partial Release
95-6654 Tetra Laval Credit, Inc. 4/19/95 Original
95-9530 Sun Financial Group, Inc. 5/26/95 Original
95-9778 Copelco Capital, Inc. 5/30/95 Original
95-14334 SouthTrust Bank of Alabama 7/28/95 Continuation
95-24062 Zeno 12/18/95 Original
96-7526 NationsBank of Georgia 4/19/96 Continuation
96-15128 Tetra Laval Credit, Inc. 8/5/96 Original
96-22381 Sun Microsystems Finance 11/13/96 Original
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Debtor: THE COMPANY
Jurisdiction: XXXXXXX COUNTY
UCC Secured Party Date Type
--- ------------- ---- ----
File No.
-------
95-2436 Sun Financial Group, Inc. 5/25/95 Original
95-2859 NationsBank of Georgia 6/15/95 Release of
93-4112
95-2860 NationsBank of Georgia 6/15/95 Release of
94-4695
95-2861 NationsBank of Georgia 6/15/95 Release of
93-4340
95-3088 Capital Associates Intl. 6/27/95 Assignment
95-3089 Capital Associates Intl. 6/27/95 Assignment
95-4206 NationsBank of Georgia 8/21/95 Release of
93-4340
95-4207 NationsBank of Georgia 8/21/95 Release of
94-4695
95-4208 NationsBank of Georgia 8/21/95 Release of
93-4112
96-520 NationsBank of Georgia 1/31/96 Termination of
93-4340
96-665 NationsBank of Georgia 2/6/96 Termination of
93-4112
96-666 NationsBank of Georgia 2/6/96 Termination of
94-4695
94-4695 NationsBank of Georgia 12/29/94
94-2695 MetLife Capital Corporation 5/1/94
94-2623 Sun Financial Group, Inc. 7/25/94
94-2614 MetLife Capital Corporation 7/25/94
-12-
94-1270 General Electric Capital Corporation 4/20/94
94-2295 MetLife Capital Corporation 6/30/94
94-0722 General Electric Capital Corporation 4/11/94 Assignment
94-0722 Sun Financial Group, Inc. 3/9/94
94-1091 Hussman Corporation 4/5/94
93-4340 NationsBank of Georgia 11/22/93
93-4112 NationsBank of Georgia 11/23/93
Debtor: THE COMPANY
Jurisdiction: XXXXXX COUNTY
UCC Secured Party Date Type
--- ------------- ---- ----
File No.
-------
95-380 AT&T Capital Leasing 2/10/95 Original
Debtor: THE COMPANY
Jurisdiction: DEKALB COUNTY
UCC Secured Party Date Type
--- ------------- ---- ----
File No.
-------
95-4444 Xxxxx Handling, Inc. 5/22/95 Assignment
95-6512 Xxxxx Handling, Inc. 7/13/95 Assignment
Debtor: THE COMPANY
Jurisdiction: GWINNETT COUNTY
UCC Secured Party Date Type
--- ------------- ---- ----
File No.
-------
66-2095 NationsBank (C&S) 8/7/91 Construction
91-5625 NationsBank (C&S) 8/7/91 Original
91-6393 SouthTrust Bank of Alabama 9/10/91 Original
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91-6507 Sun Financial Group, Inc. 9/16/91 Original
00-0000 Xxxxxxx Fork Lifts, Inc. 10/2/91 Original
91-7211 Paper Recycling, Inc. 10/14/91 Original
91-6507 CIT Group Equipment 11/25/91 Assignment
91-8485 SouthTrust Bank of Alabama 12/9/91 Original
91-5625 NationsBank (C&S) 2/7/92 Release
93-0577 Xxxxxxx Electric Membership Corp. 1/26/93 Original
91-7211 Paper Recycling, Inc. 2/3/93 Termination
93-2448 SouthTrust Bank of Alabama 4/12/93 Original
91-8485 SouthTrust Bank of Alabama 4/23/93 Amendment
91-5625 NationsBank 5/11/93 Amendment
93-4267 NationsBank 6/18/93 Original
93-6000 SouthTrust Bank of Alabama 8/13/93 Original
93-6001 SouthTrust Bank of Alabama 8/13/93 Original
91-6393 SouthTrust Bank of Alabama 8/17/93 Amendment
91-6393 SouthTrust Bank of Alabama 10/29/93 Partial Release
93-2448 SouthTrust Bank of Alabama 10/29/93 Partial Release
91-5625 NationsBank 11/24/93 Assignment
91-5625 NationsBank (C&S) 11/24/93 Amendment
93-4627 NationsBank 11/24/93 Assignment
93-4627 NationsBank 11/24/93 Amendment
93-8680 NationsBank 11/24/93 Original
93-9181 Hussman Corp. 12/13/93 Original
94-0212 Sun Financial Group, Inc. 1/13/94 Original
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94-1750 Sun Financial Group, Inc. 3/10/94 Original
91-6933 Toyota Motor Credit Corp. 3/15/94 Amendment
94-2578 Hussman Corp. 4/5/94 Original
93-9181 Hussman Corp. 4/19/94 Termination
94-3024 Sun Financial Group, Inc. 4/20/94 Original
94-1750 General Electric Capital Corp. 5/4/94 Assignment
94-5054 MetLife Capital Corp. 6/30/94 Original
94-5428 Sun Financial Group, Inc. 7/13/94 Original
94-5666 MetLife Capital Corp. 7/20/94 Original
94-5781 Sun Financial Group, Inc. 7/25/94 Original
94-2578 Hussman Corp. 10/12/94 Termination
94-8714 Sun Financial Group, Inc. 11/15/94 Original
94-9698 Sun Financial Group, Inc. 12/21/94 Original
94-9909 NationsBank 12/28/94 Original
96-4351 NationsBank of Georgia 4/19/96 Continuation
of 91-5625
96-5870 NationsBank of Georgia 5/24/96 Continuation
of 91-5625
Debtor: THE COMPANY
Jurisdiction: XXXX COUNTY
UCC Secured Party Date Type
--- ------------- ---- ----
File No.
-------
94-11908 NationsBank 12/28/94
94-11016 AT&T Capital Leasing, Inc. 12/5/94
94-10497 Sun Financial Group, Inc. 11/15/94
94-6785 MetLife Capital Corporation 7/28/94
-15-
94-5012 Sun Financial Group, Inc. 6/7/94
94-3442 Sun Financial Group, Inc. 4/20/94
94-2060 Sun Financial Group, Inc. 3/10/94
93-11685 Sun Financial Group, Inc. 12/7/93
93-1642 NationsBank of Georgia 11/23/93
93-8906 Sun Financial Group, Inc. 9/30/93
93-9010 Hussman Corporation 10/4/93
93-8954 Hussman Corporation 10/1/93
93-8140 Hussman Corporation 9/8/93
93-8139 Hussman Corporation 9/8/93
93-6998 Hussman Corporation 8/10/93
Debtor: ROMAN PROPERTIES, INC.
Jurisdiction: XXXXXX COUNTY
UCC Secured Party Date Type
--- ------------- ---- ----
File No.
-------
96-25936 Nationwide Life Ins. 12/31/96 Original
Debtor: MARTHASVILLE TRADING CO.
Jurisdiction: XXXXXX COUNTY
UCC Secured Party Date Type
--- ------------- ---- ----
File No.
-------
91-15660 NationsBank (C&S) 8/01/91 Original
93-22614 NationsBank of Georgia 11/23/93 Original
93-22892 NationsBank of Georgia 11/23/93 Amendment
93-22888 NationsBank of Georgia 11/23/93 Assignment
94-27610 NationsBank of Georgia 12/28/94 Original
-16-
96-7527 NationsBank of Georgia 4/19/96 Continuation
of 91-762024
Debtor: MARTHASVILLE TRADING CO.
Jurisdiction: GWINNETT COUNTY
UCC Secured Party Date Type
--- ------------- ---- ----
File No.
-------
96-4350 NationsBank 4/19/96 Continuation
of 91-5626
96-5869 NationsBank 5/24/96 Continuation
of 91-5626
Debtor: KARALEA, INC.
Jurisdiction: XXXXXX COUNTY
UCC Secured Party Date Type
--- ------------- ---- ----
File No.
-------
91-5626 NationsBank (C&S) 8/7/91 Original
91-5626 NationsBank (C&S) 11/24/93 Amendment
91-5626 NationsBank 11/24/93 Assignment
93-8679 NationsBank 6/17/94 Original
94-9908 NationsBank 12/28/94 Original
93-22615 NationsBank of Georgia 11/23/93 Original
94-27608 NationsBank of Georgia 12/28/94 Original
-17-
