Exhibit 4.4
HARRY'S FARMERS MARKET, INC.
NON-QUALIFIED STOCK OPTION AGREEMENT
Optionee: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Number of Shares Subject to Option: 50,000
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Exercise Price per Share: $ .9688
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Date of Grant: December 13, 1999
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1. Grant of Option. Harry's Farmers Market, Inc. (the "Company") hereby
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grants to the Optionee named above (the "Optionee") a Non-Qualified Stock Option
to purchase, on the terms and conditions set forth in this Agreement, the number
of shares indicated above of the Company's Class A Common Stock (the "Stock") at
the exercise price per share set forth above (the "Option"). The Option is not
granted under the Company's 1996 Director Stock Option Plan (the "Plan") or any
other established plan of the Company. However, capitalized terms used herein
and not otherwise defined shall have the meanings assigned to such terms in the
Plan.
2. Vesting of Option. The Option shall vest (become exercisable)
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immediately upon the issuance of the Option.
3. Period of Option and Limitations on Right to Exercise. The Option
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will, to the extent not previously exercised, lapse under the earliest of the
following circumstances; provided, however, that the Committee may, prior to the
lapse of the Option under the circumstances described in paragraphs (b), (c) and
(d) below, provide in writing that the Option will extend until a later date:
(a) The Option shall lapse as of 5:00 p.m., Eastern Time, on the fifth
anniversary of the date of grant (the "Expiration Date").
(b) The Option shall lapse three months after the Optionee ceases to be
a Director of the Company for any reason other than the Optionee's death or
Disability.
(c) If the Optionee ceases to be a Director of the Company by reason of
Disability, the Option shall lapse one year after the date the Optionee
ceases to be a Director of the Company.
(d) If the Optionee dies while serving as a Director, or during the
three-month period described in subsection (b) above or during the one-year
period described in subsection (c) above and before the Option otherwise
lapses,
the Option shall lapse one year after the date of the Optionee's death.
Upon the Optionee's death, the Option may be exercised by the Optionee's
beneficiary.
If the Optionee or his beneficiary exercises an Option after the Optionee
ceases to be a Director of the Company, the Option may be exercised only with
respect to the shares that were otherwise vested at the time the Optionee ceased
to be a Director of the Company.
4. Exercise of Option. The Option shall be exercised by written notice
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directed to the Secretary of the Company at the principal executive offices of
the Company, in substantially the form attached hereto as Exhibit A, or such
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other form as the Board may approve. Unless the exercise is a broker assisted
"cashless exercise" as described below, such written notice shall be accompanied
by full payment in cash, shares of Stock previously acquired by the Optionee, or
any combination thereof, for the number of shares specified in such written
notice; provided, however, that if shares of Stock are used to pay the exercise
price, such shares must have been held by the Optionee for at least six months.
The Fair Market Value of the surrendered Stock as of the last trading day
immediately prior to the date of the exercise shall be used in valuing Stock
used in payment of the exercise price. To the extent permitted under Regulation
T of the Federal Reserve Board, and subject to applicable securities laws, the
Option may be exercised through a broker in a so-called "cashless exercise"
whereby the broker sells the Option shares and delivers cash sales proceeds to
the Company in payment of the exercise price. In such case, the date of
exercise shall be deemed to be the date on which notice of exercise is received
by the Company and the exercise price shall be delivered to the Company on the
settlement date.
Subject to the terms of this Agreement, the Option may be exercised at any
time and without regard to any other option held by the Optionee to purchase
stock of the Company.
5. Beneficiary Designation. The Optionee, by written notice to the
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Committee, may designate one or more persons (and from time to time change such
designation) including the Optionee's legal representative, who, by reason of
the Optionee's death, shall acquire the right to exercise all or a portion of
the Option. If no beneficiary has been designated or survives the Optionee, the
Option may be exercised by the personal representative of the Optionee's estate.
If the person with exercise rights desires to exercise any portion of the
Option, such person must do so in accordance with the terms and conditions of
this Agreement.
6. Withholding. The Company has the authority and the right to deduct or
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withhold, or require the Optionee to remit to the Company, an amount sufficient
to satisfy federal, state and local taxes (including the Optionee's FICA
obligation) required by law to be withheld with respect to any taxable event
arising as a result of the exercise of the Option. Such withholding required
may be satisfied, in whole or in part, at the election of the Company, by
withholding shares of Stock from the Option having a Fair Market Value on the
date of withholding equal to the minimum amount (and not any greater
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amount) required to be withheld for tax purposes, all in accordance with such
procedures as the Committee establishes.
7. Limitation of Rights. The Option does not confer to the Optionee or
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the Optionee's personal representative any rights of a shareholder of the
Company unless and until shares of Stock are in fact issued to such person in
connection with the exercise of the Option.
8. Stock Reserve. The Company shall at all times during the term of this
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Agreement reserve and keep available such number of shares of Stock as will be
sufficient to satisfy the requirements of this Agreement.
9. Restrictions on Transfer and Pledge. The Option may not be pledged,
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encumbered or hypothecated to or in favor of any party other than the Company or
a Parent or Subsidiary, or be subject to any lien, obligation or liability of
the Optionee to any other party other than the Company or a Parent or
Subsidiary. The Option is not assignable or transferable by the Optionee other
than by will or the laws of descent and distribution or pursuant to a domestic
relations order that would satisfy Section 414(p)(1)(A) of the Code; provided,
however, that the Committee may (but need not) permit other transfers where the
Committee concludes that such transferability (i) does not result in accelerated
taxation and (ii) is otherwise appropriate and desirable, taking into account
any factors deemed relevant, including without limitation, state or federal tax
or securities laws applicable to transferable options. The Option may be
exercised during the lifetime of the Optionee only by the Optionee or any
permitted transferee.
10. Restrictions on Issuance of Shares. If at any time the Board shall
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determine, in its discretion, that listing, registration or qualification of the
shares of Stock covered by the Option upon any securities exchange or under any
state or federal law, or the consent or approval of any governmental regulatory
body, is necessary or desirable as a condition to the exercise of the Option,
the Option may not be exercised in whole or in part unless and until such
listing, registration, qualification, consent or approval shall have been
effected or obtained free of any conditions not acceptable to the Board.
11. Successors. This Agreement shall be binding upon any successor of the
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Company, in accordance with the terms of this Agreement.
12. Severability. If any one or more of the provisions contained in this
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Agreement are invalid, illegal or unenforceable, the other provisions of this
Agreement will be construed and enforced as if the invalid, illegal or
unenforceable provision had never been included.
13. Notice. Notices and communications under this Agreement must be in
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writing and either personally delivered or sent by registered or certified
United States mail, return receipt requested, postage prepaid. Notices to the
Company must be addressed to:
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Harry's Farmers Market, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. Blazer
or any other address designated by the Company in a written notice to the
Optionee. Notices to the Optionee will be directed to the address of the
Optionee then currently on file with the Company, or at any other address given
by the Optionee in a written notice to the Company.
[Signatures on Following Page]
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IN WITNESS WHEREOF, Harry's ▇▇▇▇▇▇'▇ Market, Inc., acting by and through
its duly authorized officers, has caused this Agreement to be executed, and the
Optionee has executed this Agreement, all as of the day and year first above
written.
HARRY'S FARMERS MARKET, INC.
By: /s/ ▇▇▇▇▇ ▇. Blazer
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Name: ▇▇▇▇▇ ▇. Blazer
Title: President
OPTIONEE:
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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EXHIBIT A
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NOTICE OF EXERCISE OF OPTION TO PURCHASE
CLASS A COMMON STOCK OF HARRY'S FARMERS MARKET, INC.
Name:_______________________________
Address:____________________________
____________________________
Date:_______________________________
Harry's Farmers Market, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Secretary
Re: Exercise of Non-Qualified Stock Option
I elect to purchase _____________ shares of Class A Common Stock (the
"Stock") of Harry's Farmers Market, Inc. (the "Company") pursuant to that
certain Non-Qualified Stock Agreement dated _____________ by and between Harry's
Farmers Market, Inc. and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇. The purchase will take place on
the exercise date, which will be (i) as soon as practicable following the date
of this notice and all other necessary forms and payments are received by the
Company, unless I specify a later date (not to exceed 30 days following the date
of this notice), or (ii) in the case of a broker-assisted cashless exercise (as
indicated below), the date of this notice.
On or before the exercise date (or, in the case of a broker-assisted
cashless exercise, on the settlement date following the exercise date), I will
pay the full exercise price in the form specified below (check one):
[ ] Cash Only: by delivering a check to the Company for
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$________________.
[ ] Cash and Shares: by delivering a check to the Company for
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$_____________ for the part of the exercise price. I will pay the
balance of the exercise price by delivering to the Company a stock
certificate with my endorsement for shares of Stock of the Company
that I have owned for at least six months. If the number of shares
of Stock represented by such stock certificate exceeds the number
needed to pay the exercise price, the Company will issue me a new
stock certificate for the excess.
[ ] Shares Only: by delivering to the Company a stock certificate with
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my endorsement for shares of Stock of the Company that I have owned
for at least six months. If the number of shares of Stock of the
Company represented by such stock certificate exceeds the number
needed to pay the exercise price, the Company will issue me a new
stock certificate for the excess.
[ ] Cash From Broker: by delivering the purchase price from __________,
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a broker, dealer or other "creditor" as defined by Regulation T
issued by the Board of Governors of the Federal Reserve System (the
"Broker"). I authorize the Company to issue a stock certificate in
the number of shares indicated above in the name of the Broker in
accordance with instructions received by the Company from the Broker
and to deliver such stock certificate directly to the Broker (or to
any other party specified in the instructions from the Broker) upon
receiving the exercise price from the Broker.
On or before the Exercise Date, I will pay satisfy any applicable tax
withholding obligations in the form specified below (check one):
[ ] Cash Only: by delivering a check to the Company for the full tax
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withholding amount.
[ ] Cash and Shares: by delivering a check to the Company for
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$_______________, for part of the tax withholding amount. I will pay
the balance of the tax withholding amount by delivering to the
Company a stock certificate with my endorsement for shares of Stock
of the Company that I have owned for at least six months. If the
number of shares of Stock of the Company represented by such stock
certificate exceeds the number needed to pay the tax withholding
amount, the Company will issue me a new stock certificate for the
excess.
[ ] Shares Only: by delivering to the Company a stock certificate with
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my endorsement for shares of Stock of the Company that I have owned
for at least six months. If the number of shares of Stock of the
Company represented by such stock certificate exceeds the number
needed to pay the tax withholding amount, the Company will issue me
a new stock certificate for the excess.
[ ] Withholding of Shares to Cover Minimum Obligation: by having the
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Company withhold shares of Stock from the Option having a Fair
Market Value on the date of withholding equal to the minimum amount
(and not any greater amount) required to be withheld for tax
purposes. Only whole shares may be withheld. I will satisfy any
excess withholding amount by delivering a check to the Company for
the remainder of the tax withholding amount.
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Please deliver the stock certificate to me (unless I have chosen to pay
the purchase price through a Broker).
Very truly yours,
_________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
AGREED TO AND ACCEPTED:
HARRY'S FARMERS MARKET, INC.
By:______________________________
Name:____________________________
Title:___________________________
Number of Option Shares Exercised:___________
Number of Option Shares Remaining:___________
Date:________________________________________
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