Exhibit 4.3
Non-Qualified Stock Option Agreement dated January 25, 2001
between Harry's Farmers Market, Inc. and Xxx Xxxxxxxx
NON-QUALIFIED STOCK OPTION AGREEMENT
Optionee: Xxx Xxxxxxxx
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Number of Shares Subject to Option: 200,000
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Exercise Price per Share: $0.46875
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Date of Grant: January 25, 2001
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1. Background. The Optionee named above (the "Optionee") has been
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offered a position as Chief Operating Officer of Harry's Farmers Market, Inc.
This option is granted as an inducement to the Optionee to accept such position.
2. Defined Terms. For purposes of this Agreement, the following
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terms shall have the following meanings:
"Board" means the Board of Directors of the Company.
"Change of Control" has the meaning assigned to such term in any
employment agreement between the Optionee and the Company.
"Code" means the Internal Revenue Code of 1986, as amended, or any
successor thereto, and the Treasury Regulations and rulings promulgated
thereunder.
"Committee" means the Compensation Committee of the Board, or any
successor committee.
"Company" means Harry's Farmers Market, Inc., a corporation organized
under the laws of the State of Georgia.
"Disability" means a mental or physical disability as determined by
the Board of Directors of the Company in accordance with standards and
procedures similar to those under the Company's employee long-term disability
plan, if any. At any time that the Company does not maintain such a long-term
disability plan, Disability shall mean the inability of Executive, as determined
by the Board, to substantially perform the essential functions of his regular
duties and responsibilities due to a medically determinable physical or mental
illness which has lasted (or can reasonably be expected to last) for a period of
six consecutive months.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and any successor thereto.
"Fair Market Value" means, as of any given date, the closing price of
the Stock on such date (or, if no transactions were reported on such date, on
the next preceding date on which transactions were so reported) on the Nasdaq
Stock Market; provided, however, if the Stock is not listed on the Nasdaq Stock
Market on such date, the average of the highest bid and lowest asked prices for
the Stock on such day as reported on the Nasdaq OTC Bulletin Board Service or by
the National Quotation Bureau, Incorporated or a comparable service. If each of
the previous methods are inapplicable at the time Fair Market Value is to be
determined, Fair Market Value shall be determined in good faith by the Board.
"Non-Qualified Stock Option" means a Stock Option that is not intended
to be an incentive stock option as described in Section 422 of the Code.
"Retirement" means normal retirement as defined in the Company's then-
current retirement plan, or if the Company does not have a retirement plan,
"Retirement" shall mean voluntary termination after age 65 with ten years of
service.
"Stock" means the Class A Common Stock of the Company.
"Subsidiary" means any corporation (other than the Company) in an
unbroken chain of corporations beginning with the Company if each of the
corporations (other than the last corporation in the unbroken chain) owns stock
possessing fifty percent (50%) or more of the total combined voting power of all
classes of stock in one of the other corporations in the chain.
3. Grant of Option. The Company hereby grants to the Optionee a Non-
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Qualified Stock Option to purchase, on the terms and conditions set forth in
this Agreement, the number of shares of Stock indicated above, at the exercise
price per share set forth above (the "Option").
4. Vesting of Option. Unless the exercisability of the Option is
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accelerated as provided in Section 5 below, the Option shall vest (become
exercisable) in equal installments of 100,000 Option Shares on each of the first
and second anniversaries of the Effective Date.
5. Change of Control. Notwithstanding the vesting schedule provided
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in Section 4 above, in the event of a Change of Control, unless otherwise
determined by the Committee or the Board in writing prior to the occurrence of
such Change of Control, the Option shall vest and become exercisable in full.
6. 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),
(d) and (e) 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
tenth anniversary of the date of grant (the "Expiration Date").
(b) The Option shall lapse three months after the Optionee's
termination of employment for any reason other than the Optionee's death,
Disability or Retirement.
(c) If the Optionee's employment terminates by reason of
Disability or Retirement, the Option shall lapse one year after the date of
the Optionee's termination of employment.
(d) If the Optionee dies while employed and before the Option
otherwise lapses, the Option shall lapse three years after the date of the
Optionee's death. If the Optionee dies during the three-month period
described in subsection (b) 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
termination of employment, the Option may be exercised only with respect to the
shares that were otherwise vested on the date of Optionee's termination of
employment (including vesting by acceleration in accordance with Section 5
hereof).
7. Exercise of Option. The Option shall be exercised by written
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notice directed to the Secretary of the Company at the principal executive
offices of the Company, in substantially the form attached hereto as Exhibit A,
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or such other form as the Board may approve. 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 exercise date
shall be determined in valuing the Stock used as payment. 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.
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.
8. Limitation of Rights. The Option does not confer to the Optionee
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or 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. Nothing in this Agreement shall interfere with or limit
in any way the right of the Company or any Subsidiary to terminate the
Optionee's employment at any time, nor confer upon the Optionee any right to
continue in the employ or the Company or any Subsidiary.
9. Stock Reserve. The Company shall at all times during the term of
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this Agreement keep available such number of shares of Stock as will be
sufficient to satisfy the requirements of this Agreement.
10. Optionee's Covenant. The Optionee hereby agrees to use his best
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efforts to provide services to the Company in a workmanlike manner and to
promote the Company's interests.
11. Restrictions on Transfer and Pledge. The Option may not be
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pledged, encumbered or hypothecated to or in favor of any party other than the
Company or a Subsidiary, or be subject to any lien, obligation or liability of
the Optionee to any other party other than the Company or a 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 is 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.
12. Restrictions on Issuance of Shares. If at any time the Board
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shall 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.
13. Successors. This Agreement shall be binding upon any successor
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of the Company, in accordance with the terms of this Agreement.
14. Severability. If any one or more of the provisions contained in
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this 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.
15. Notice. Notices and communications under this Agreement must be
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in 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:
Harry's Farmers Market, Inc.
0000 Xxxxx Xxxxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxx X. 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.
IN WITNESS WHEREOF, Harry's Xxxxxx'x 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/ Xxxxx X. Blazer
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Xxxxx X. Blazer
President and Chief Executive Officer
OPTIONEE:
/s/ Xxx Xxxxxxxx
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Xxx Xxxxxxxx
EXHIBIT A
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NOTICE OF EXERCISE OF OPTION TO PURCHASE
CLASS A COMMON STOCK OF HARRY'S FARMERS MARKET, INC.
Name:
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Address:
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Date:
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Harry's Farmers Market, Inc.
0000 Xxxxx Xxxxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
Attn: Secretary
Re: Exercise of Non-Qualified Stock Option
I elect to purchase _____________ shares of Class A Common Stock of
Harry's Farmers Market, Inc. ("Stock") pursuant to that certain Non-Qualified
Stock Option Agreement dated January 25, 2001 by and between Harry's Farmers
Market, Inc. and Xxx Xxxxxxxx. The purchase will take place on the exercise
date, which will be as soon as practicable following the date of this notice and
the date on which 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).
On or before the exercise date, I will pay the full exercise price in
the form specified below (check one):
[ ] Cash Only: by delivering a check to Harry's Farmers Market,
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Inc. for $________________.
[ ] Cash and Shares: by delivering a check to Harry's Farmers
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Market, Inc. for $_____________, as partial payment 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 Company Stock that I have owned for at least six
months. If the number of shares of Company 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
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with my endorsement for shares of Company Stock that I have owned
for at least six months. If the number of shares of Company 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.
[ ] Cash From Broker: by delivering the purchase price from a broker,
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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 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.
Please deliver the stock certificate representing the shares purchased
to me, unless I have chosen to pay the purchase price through a broker.
Very truly yours,
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Xxx Xxxxxxxx
AGREED TO AND ACCEPTED:
HARRY'S FARMERS MARKET, INC.
By:
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Name:
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Title:
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Number of Option Shares Exercised:
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Number of Option Shares Remaining:
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Date:
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