EXHIBIT 4.1
VOTING AGREEMENT
THIS VOTING AGREEMENT, dated as of August 9, 2001 ("Voting Agreement"), is
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by and between Whole Foods Market Group, Inc., a Delaware corporation
("Purchaser"), and Xxxxx X. Blazer ("Stockholder").
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RECITALS
WHEREAS, concurrent with the execution of this Voting Agreement, Purchaser
and Harry's Farmers Market, Inc., a Georgia corporation (the "Company"), are
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parties to an Asset Purchase Agreement, dated of even date herewith (as amended
from time to time, the "Purchase Agreement"), pursuant to which Purchaser is
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purchasing certain assets, and assuming certain liabilities, of the Company and
its subsidiaries (the "Purchase");
WHEREAS, the Stockholder is the record or beneficial owner of shares of
Class A and Class B common stock of the Company (the "Shares") in the amounts
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set forth on the signature page hereof; and
WHEREAS, as an inducement and a condition to entering into the Purchase
Agreement, Purchaser desires that the Stockholder agree, and the Stockholder is
willing to agree, to enter into this Voting Agreement.
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Purchaser and the Stockholder, intending to be legally bound,
hereby agree as follows:
1. Certain Definitions. In addition to the terms defined elsewhere
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herein, capitalized terms used and not defined herein have the respective
meanings ascribed to them in the Purchase Agreement. For purposes of this
Voting Agreement:
(a) "Affiliate" means, as to any specified Person, (i) any
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stockholder, equity holder, officer, or director of such Person and their
family members or (ii) any other Person which, directly or indirectly,
controls, is controlled by, employed by or is under common control with,
any of the foregoing. For the purposes of this definition, "control" means
the possession of the power to direct or cause the direction of the
management and policies of such Person, whether through the ownership of
voting securities, by contract or otherwise.
(b) "Beneficially Own" or "Beneficial Owner" or "Beneficial
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Ownership" with respect to any securities means having "beneficial
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ownership" of such securities as determined pursuant to Rule 13d-3 under
the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
including pursuant to any agreement, arrangement or understanding, whether
or not in writing. Without duplicative counting of the same securities by
the same holder, securities Beneficially Owned by a Person shall include
securities Beneficially Owned by all other Persons with whom such Person
would constitute a "group" as within the meanings of Section 13(d)(3) of
the Exchange Act.
(c) "Person" means any individual, corporation, partnership, limited
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liability company, joint venture, association, joint stock company, trust
(including any beneficiary thereof), unincorporated organization or
government or any agency or political subdivision thereof.
2. Disclosure. The Stockholder hereby agrees to permit the Company and
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Purchaser to publish and disclose in the Proxy Statement (including all
documents and schedules filed with the SEC), and any press release or other
disclosure document which Purchaser and the Company reasonably determine to be
necessary or desirable in connection with the Purchase and any transactions
related thereto, the Stockholder's identity and ownership of the Shares and the
nature of the Stockholder's commitments, arrangements and understandings under
this Voting Agreement.
3. Voting of Company Stock. The Stockholder hereby agrees that, during
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the period commencing on the date hereof and continuing until the first to occur
of (a) the Closing or (b) the termination of the Purchase Agreement in
accordance with its terms (the "Termination Date"), at any meeting of the
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holders of the Shares, however called, or in connection with any written consent
of the holders of the Shares, the Stockholder shall vote (or cause to be voted)
the Shares held of record or Beneficially Owned by him and to which he has the
right to vote or to direct the vote, whether heretofore owned or hereafter
acquired: in favor of approval of the Purchase, adoption of the Purchase
Agreement and any actions required in furtherance thereof and hereof; provided,
however, that the terms of the Purchase Agreement shall not have been amended to
reduce the Purchase Price to less than $35 million or to impose any specific
obligation on the Stockholder that is not imposed uniformly on all stockholders
of Seller, except as the Stockholder has agreed in writing. The Stockholder
agrees that the obligations under this Voting Agreement are unconditional and
will remain in full force and effect notwithstanding that the Company may have
received an Acquisition Proposal or that the Board of Directors of the Company
may have withdrawn or amended its recommendation and approval of the Purchase.
Furthermore, the Stockholder will not enter into any agreement or understanding
with any Person the effect of which would be inconsistent with or in violation
of any provision contained in this Section 3.
4. Covenants, Representations and Warranties of the Stockholder. The
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Stockholder hereby represents and warrants to, and agrees with, Purchaser as
follows:
(a) The Stockholder is the owner or the Beneficial Owner of the
number of Shares set forth on the signature page hereto, with no
limitations, qualifications or restrictions on his rights under the Shares
other than as set forth on the signature page hereto and subject to
applicable securities laws and the terms of this Voting Agreement.
(b) The Stockholder has the legal capacity, power and authority to
enter into and perform all of the Stockholder's obligations under this
Voting Agreement. The execution, delivery and performance of this Voting
Agreement by the Stockholder will not violate any other agreement to which
the Stockholder is a party including, without limitation, any voting
agreement, stockholders agreement,
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voting trust, trust or similar agreement. This Voting Agreement has been
duly and validly executed and delivered by the Stockholder and constitutes
a valid and binding agreement enforceable against the Stockholder in
accordance with its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general
equity principles. There is no beneficiary or holder of a voting trust
certificate or other interest of any trust of which the Stockholder is a
trustee whose consent is required for the execution and delivery of this
Voting Agreement or the consummation by the Stockholder of the transactions
contemplated hereby.
(c) The Stockholder understands and acknowledges that Purchaser is
entering into the Purchase Agreement in reliance upon the Stockholder's
execution and delivery of this Voting Agreement.
5. Miscellaneous.
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(a) Entire Agreement. This Voting Agreement constitutes the entire
agreement among the parties with respect to the subject matter hereof and
supersedes all other prior agreements and understandings, both written and
oral, between the parties with respect to the subject matter hereof.
(b) Certain Events. The Stockholder agrees that this Voting Agreement
and the obligations hereunder shall attach to the Stockholder's Shares and
shall be binding upon any Person to which legal or Beneficial Ownership of
such Shares shall pass, whether by operation of law or otherwise, including
without limitation, the Stockholder's heirs, guardians, administrators or
successors. Notwithstanding any such transfer of Shares, the transferor
shall remain liable for the performance of all obligations under this
Voting Agreement.
(c) Assignment. This Voting Agreement shall not be assigned by
operation of law or otherwise without the prior written consent of
Purchaser, in the case of an assignment by the Stockholder, and the
Stockholder, in the case of any assignment by Purchaser; provided that
Purchaser may assign, in its sole discretion, its rights and obligations
hereunder to any direct or indirect wholly owned subsidiary of Purchaser,
but no such assignment shall relieve Purchaser of its obligations hereunder
if such assignee does not perform such obligations.
(d) Amendment and Modification. This Voting Agreement may not be
amended, changed, supplemented, waived or otherwise modified or terminated,
except upon the execution and delivery of a written agreement executed by
the parties hereto affected by such amendment.
(e) Severability. Whenever possible, each provision or portion of any
provision of this Voting Agreement will be interpreted in such a manner as
to be effective and valid under applicable law, but if any provision or
portion of any provision of this Voting Agreement is held to be invalid,
illegal or unenforceable in
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any respect under any applicable law or rule in any jurisdiction, such
invalidity, illegality or unenforceability will not affect any other
provision or portion of any provision of this Voting Agreement in such
jurisdiction, and this Voting Agreement will be reformed, construed and
enforced in such jurisdiction as if such invalid, illegal or unenforceable
provision or portion of any provision had never been contained herein.
(f) Specific Performance. The parties hereto agree, recognize and
acknowledge that a breach by either of them of any covenants or agreements
contained in this Voting Agreement will cause the other party to sustain
damages for which it would not have an adequate remedy at law for money
damages, and therefore each of the parties hereto agrees that in the event
of any such breach the aggrieved party shall be entitled to the remedy of
specific performance of such covenants and agreements and injunctive and
other equitable relief in addition to any other remedy to which it may be
entitled, at law or in equity.
(g) Remedies Cumulative. All rights, powers and remedies provided
under this Voting Agreement or otherwise available in respect hereof at law
or in equity shall be cumulative and not alternative, and the exercise of
any such rights, powers or remedies by any party shall not preclude the
simultaneous or later exercise of any other such right, power or remedy by
such party.
(h) No Waiver. The failure of any party hereto to exercise any right,
power or remedy provided under this Voting Agreement or otherwise available
in respect hereof at law or in equity, or to insist upon compliance by any
other party hereto with its obligations hereunder, and any custom or
practice of the parties at variance with the terms hereof, will not
constitute a waiver by such party of its right to exercise any such or
other right, power or remedy or to demand such compliance.
(i) No Third Party Beneficiaries. This Voting Agreement is not
intended to confer upon any person other than the parties hereto any rights
or remedies hereunder.
(j) Governing Law. This Voting Agreement will be governed and
construed in accordance with the laws of the State of Delaware, without
giving effect to the principles of conflict of laws thereof.
(k) Jurisdiction; Service of Process. Any action or proceeding
seeking to enforce any provision of, or based on any right arising out of,
this Voting Agreement may be brought against any of the parties in the
courts of the State of Delaware, County of New Castle, or in the United
States District Courts located in Wilmington, Delaware if they have or can
acquire jurisdiction, and each of the parties consents to the jurisdiction
of such courts (and the appropriate appellate courts) in any such action or
proceeding and waives any objection to venue laid therein. Process in any
action or proceeding referred to in the preceding sentence may be served on
any party anywhere in the world.
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(l) Counterparts. This Voting Agreement may be executed in
counterparts, each of which will be considered one and the same Voting
Agreement and will become effective when such counterparts have been signed
by each of the parties and delivered to the other parties, it being
understood that all parties need not sign the same counterpart.
[Signatures on Following Page]
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IN WITNESS WHEREOF, Purchaser and the Stockholder have caused this Voting
Agreement to be duly executed as of the day and year first above written.
Whole Foods Market Group, Inc.
By: /s/ XXX SUD
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Name: Xxx Sud
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Title: Vice President
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/s/ XXXXX X. BLAZER
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Stockholder Name: Xxxxx X. Blazer
No. of Class A Common Shares: 38,000: all of which
are owned by the Stockholder's wife and of which
the Stockholder has no right to vote or direct the
vote.
No. of Class B Common Shares: 2,050,701: 2,049,400
of which are owned by Xxxxx Xxxxxx, Inc., a
company of which the Stockholder is the sole
shareholder and director and therefore has the
right to direct the vote; and 1,301 of which are
owned by the Stockholder and of which he has the
right to vote.
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