EXHIBIT 4.10
AMENDED AND RESTATED
INVESTORS' AGREEMENT
This AMENDED AND RESTATED INVESTORS' AGREEMENT is dated as of January 31,
1997, by and among Harry's Farmers Market, Inc., a Georgia corporation (the
"Company"), Xxxxx X. Blazer ("HB") and the parties listed on Schedule I attached
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hereto (the "Investors").
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W I T N E S S E T H:
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WHEREAS, pursuant to the terms of the Share and Warrant Purchase
Agreements, dated as of December 30, 1994 (the "Share and Warrant Purchase
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Agreements"), between the Company and each of the Investors each Investor
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purchased the number of shares of the Company's Series A Redeemable Convertible
Preferred Stock, stated value $9.00 per share (the "Series A Preferred
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Stock"),and warrants and performance warrants (together, the "Warrants")
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exercisable for shares of the Company's Class A Common Stock, no par value per
share (the "Class A Common Stock") set forth opposite such Investor's name on
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Schedule I;
WHEREAS, the Company, HB and each of the Investors entered into that
Investors' Agreement dated December 30, 1994 (the "Original Agreement") to
regulate certain aspects of their relationship; and
WHEREAS, HB owns 2,050,701 shares of the Company's Class B Common Stock, no
par value per share (the "Class B Common Stock" and together with the Class A
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Common Stock, the "Common Stock"), and no shares of Class A Common Stock (such
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shares, along with any shares of Common Stock or other equity securities of the
Company that HB may subsequently acquire, the "HB Shares"); and
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WHEREAS, pursuant to the terms of that Preferred Stock Exchange Agreement
of even date herewith between the Company, Xxxxxx Xxxxxxx Nominees Ltd. and each
of the Investors (the "Exchange Amendment") each of the Investors has 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"), intends 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").
WHEREAS, each of the Investors, HB, and the Company desires to amend and
restate the terms of the Original Agreement as set forth herein.
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Rights of Inclusion.
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(a) In the event HB proposes to Transfer (as such term and other
capitalized terms used herein are defined in Section 2 hereof), any HB Shares
(the "Transferor Shares") to any Person (the "Buyer"), as a condition to such
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Transfer, HB shall cause the Buyer to offer (the "Inclusion Offer") to purchase
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from each Investor, at the option of each Investor, up to that number of
Investor Shares determined in accordance with Section 1(b) on the same terms and
conditions as are applicable to the Transferor Shares (including any
consideration to be received by HB in the form of bonuses, consulting fees,
noncompetition payments, pursuant to employment arrangements or similar
arrangements), provided, that the Investors shall not be required to provide any
representation, warranty or other undertaking other than with respect to its
ownership of, and authority to Transfer, such Investor Shares free of any liens
or encumbrances. HB shall provide prompt written notice to each Investor (the
"Inclusion Notice") setting forth all the terms and conditions of the Inclusion
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Offer, and each Investor may accept the Inclusion Offer in whole or in part by
providing a written notice of acceptance to HB within twenty (20) days of
delivery of the Inclusion Notice to such Investor.
(b) Each Investor shall have the right to sell, pursuant to the
Inclusion Offer, Investor Shares representing the same percentage of all
Investor Shares as the Transferor Shares are of all HB Shares; provided,
however, that if such Investors elect not to exercise such right, HB shall
nonetheless be entitled to Transfer all of the Transferor Shares described in
the Inclusion Notice. In the event the number of Investor Shares for which
Investors elect to exercise such right, along with the Transferor Shares and any
other shares of the Company to be sold by other shareholders pursuant to any
similar rights granted to such other shareholders, exceed the number of shares
which the Buyer is willing to purchase, the number of shares to be Transferred
to the Buyer by such transferor shall be reduced so that each transferor is
entitled to Transfer the same percentage of its shares as each other transferor.
If an Investor elects to exercise such right, such Investor may, in its sole
discretion, determine the composition of the Investor Shares (i.e., the number
of the AA Preferred Stock, Warrants, and Class A Common Stock to be included in
the Investor Shares) to be Transferred to the Buyer pursuant to the Inclusion
Offer. In the event an Investor chooses to include any AA Preferred Stock or
any Warrants in the Investor Shares to be Transferred to the Buyer pursuant to
the Inclusion Offer, such Investor shall, prior to or simultaneously with such
Transfer, convert such AA Preferred Stock into shares of Class A Common Stock
and exercise such Warrants into shares of Class A Common Stock so that such
Investor Transfers only Class A Common Stock to the Buyer.
(c) HB shall have ninety (90) days, commencing on the date of the
Inclusion Notice, in which to Transfer, on behalf of himself and the Investors,
up to the number of shares covered by the Inclusion Offer (including the
Transferor Shares) to the Buyer. The terms of such Transfer, including, without
limitation, price and form of consideration, shall be as set forth in the
Inclusion Notice. If at the end of such ninety (90) day period HB has not
completed the Transfer of the Transferor Shares and the Investor Shares (if any)
proposed to be Transferred, HB may not proceed with such Transfer or any other
Transfer without first giving a new Inclusion Notice pursuant to the provisions
of this Section 1.
(d) If HB is able to complete the Transfer of the Transferor Shares
and the Investor Shares (if any) proposed to be Transferred within such ninety
(90) day period, at the closing thereof, such Investors Transferring Investor
Shares shall deliver to the Buyer a certificate of certificates representing the
Investor Shares to be Transferred pursuant to the Inclusion Offer, free and
clear of all liens and encumbrances, and the Buyer shall pay to such Investor
the purchase price for the Investor Shares so Transferred pursuant to this
Section 1 and shall furnish such other evidence of the completion of such
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Transfer and the terms thereof as may be reasonably requested by such Investor.
(e) The provisions of this Section 1 shall not apply to any Transfer
or proposed Transfer by HB of HB Shares which, together with all other Transfers
by HB of HB Shares on or prior to the date of such Transfer represent ten
percent (10%) or less of the HB Shares held by HB on the date hereof,
appropriately adjusted to reflect any stock split, stock dividend,
recapitalization or similar event. If any Transfer of the HB Shares, either
alone or together with all previous Transfers, exceeds such ten percent (10%)
threshold, the exclusion provided by this Section 1(e) shall apply to the
Transfer of that number of HB Shares needed to reach the ten percent (10%)
threshold and the other provisions of this Section 1 shall apply to the Transfer
of all HB Shares in excess of such ten percent (10%) threshold. In the event
that any Investor ceases to hold, directly or indirectly, AA Preferred Stock,
Warrants and Class A Common Stock representing at least fifteen percent (15%) of
the number of shares of Class A Common Stock into which the AA Preferred Stock
acquired by Investors pursuant to the Exchange Agreement and the Warrants
acquired by the Investors pursuant to the Share and Warrant Purchase Agreement,
as applicable, may be converted or exercised, then the provisions of this
Section 1 shall terminate and be of no further force or effect with respect to
such Investor.
2. Definitions.
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As used herein, the following terms shall have the respective meanings
set forth below:
"AA Preferred Stock" shall have the meaning set forth in the fourth WHEREAS
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clause hereof.
"Buyer" shall have the meaning set forth in Section 1(a) hereof.
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"Class A Common Stock" shall have the meaning set forth in the first
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WHEREAS clause hereof.
"Class B Common Stock" shall have the meaning set forth in the third
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WHEREAS clause hereof.
"Common Stock" shall have the meaning set forth in the third WHEREAS clause
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hereof.
"Company" shall have the meaning set forth in the first paragraph hereof.
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"HB" shall have the meaning set forth in the first paragraph hereof.
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"HB Shares" shall have the meaning set forth in the third WHEREAS clause
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hereof.
"Investors" shall have the meaning set forth in the first paragraph hereof.
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"Investor Shares" means, with respect to each Investor all AA Preferred
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Stock, Warrants and Class A Common Stock owned by such Investor.
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"Inclusion Notice" shall have the meaning set forth in Section 1(a) hereof.
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"Inclusion Offer" shall have the meaning set forth in Section 1(a) hereof.
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"Investors" shall have the meaning set forth in the first paragraph hereof.
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"Investor Shares" means, with respect to each Investor all AA Preferred
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Stock, Warrants and Class A Common Stock owned by such Investor.
"Performance Warrants" shall have the meaning set forth in the first
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WHEREAS clause hereof.
"Person" means an individual corporation, partnership, limited liability
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company, firm, association, joint venture, trust, unincorporated organization,
governmental body, agency, political subdivision or other entity.
"Share and Warrant Purchase Agreements" shall have the meaning set forth in
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the first WHEREAS clause hereof.
"Transfer" means, with respect to any security, any direct or indirect
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sale, transfer, assignment, hypothecation, pledge or any other disposition of
such security or any interest therein.
"Transferor Shares" shall have the meaning set forth in Section 1(a)
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hereof.
"Warrants" shall have the meaning set forth in the first WHEREAS clause
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hereof.
3. Miscellaneous.
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(a) In the event of a breach by any party to this Agreement of its
obligations under this Agreement, any party injured by such breach, in addition
to being entitled to exercise all rights granted by law, including recovery of
damages, will be entitled to specific performance of its rights under this
Agreement. The parties agree that the provisions of this Agreement shall be
specifically enforceable, it being agreed by the parties that the remedy at law,
including monetary damages, for breach of any such provision will be inadequate
compensation for any loss and that any defense in any action for specific
performance that a remedy at law would be adequate is waived.
(b) Except as otherwise provided herein, no modification, amendment or
waiver of any provision of this Agreement will be effective against any
provision of this Agreement will be effective against any party hereto unless
such modification, amendment or waiver is approved in writing by all parties
hereto. The failure of any party to enforce any of the provisions of this
Agreement will in no way be construed as a waiver of such provisions and will
not affect the right of such party thereafter to enforce each and every
provision of this Agreement in accordance with its terms.
(c) All covenants and agreements in this Agreement by or on behalf of any
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of the parties hereto will bind and inure to the benefit of the respective
successors and assigns of the parties hereto whether so expressed or not.
(d) All notices, requests and other communications hereunder must be in
writing and will be deemed to have been duly given only if delivered personally
or by facsimile transmission or sent by nationally recognized overnight courier
service to the parties at the following addresses or facsimile numbers:
(i) If to Investors, to the addresses
indicated on Schedule I hereto:
(ii) If to the Company, to:
Harry's Farmers Market, Inc.
0000 Xxxxx Xxxxxxx Xxxx
Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attn: Xxxxx X. Blazer
with a copy to:
Xxxxxx & Bird
One Atlantic Center
0000 X. Xxxxxxxxx Xxxx, X.X.
Xxxxxxx, XX 00000-0000
Facsimile: (000) 000-0000
Attn: Xxxx Xxxxxx
(iii) If to HB, to:
Xxxxx X. Blazer
c/o Harry's Farmers Market
0000 Xxxxx Xxxxxxx Xxxx
Xxxxxxx, XX 00000
with a copy to:
Xxxxxx & Bird
One Atlantic Center
0000 X. Xxxxxxxxx Xxxx, X.X.
Xxxxxxx, XX 00000-0000
Facsimile: (000) 000-0000
Attn: Xxxx Xxxxxx
All such notices, requests and other communications will (x) if delivered
personally to the address as provided in this Section 3(d), be deemed given upon
delivery, (y) if delivered by facsimile transmission to the facsimile number as
provided in this Section 3(d), be deemed given upon receipt and (z) if delivered
by nationally recognized overnight courier service in the manner described above
to the address as provided in this Section 3(d), be deemed given on the business
day following the day it was sent (in each case regardless of whether such
notice, request or other communication is received by any other Person to whom a
copy of such notice is to be delivered pursuant to this Section 3(d)). Any
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party from time to time may change its address, facsimile number or other
information for the purpose of notices to that party by giving notice specifying
such change to the other parties hereto.
(e) The headings used in this Agreement have been inserted for convenience
of reference only and do not define or limit the provisions hereof.
(f) If any provision of this Agreement is held to be illegal, invalid or
unenforceable, and if the rights or obligations of any party hereto under this
Agreement will not be materially and adversely affected thereby, (i) such
provision will be fully severable, (ii) this Agreement will be construed and
enforced as if such illegal, invalid or unenforceable provision had never
comprised a part hereof, (iii) the remaining provisions of this Agreement will
remain in full force and effect and will not be affected by the illegal, invalid
or unenforceable provision or by its severance herefrom and (iv) in lieu of such
illegal, invalid or unenforceable provision, there will be added automatically
as part of this Agreement a legal, valid and enforceable provision as similar in
terms to such illegal, invalid or unenforceable provision as may be possible.
(g) This Agreement shall be governed by and construed in accordance with
the laws of the State of New York applicable to a contract executed and
performed in such State without giving effect to the conflicts of laws
principles thereof.
(h) This Agreement may be executed in any number of counterparts, each of
which will be deemed an original, but all of which together will constitute one
and the same instrument.
(i) This Agreement hereby amends and restates the terms of the Original
Agreement in their entirety and shall only become effective upon the
consummation of the transactions set forth in the Transaction Agreement, at
which time the Original Agreement will be of no further force and effect from
the date thereof. In the event that the transactions set forth in the
Transaction Agreement are not consummated, this Agreement shall terminate and
the Original Agreement shall continue in effect.
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IN WITNESS WHEREOF, the parties have duly executed this Amended and
Restated Investors' Agreement as of the date first written above.
HARRY'S FARMERS MARKET, INC.
By: /s/ Xxxxx X. Blazer
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Name: Xxxxx X. Blazer
Title: President
AXA EQUITY & LAW LIFE ASSURANCE
SOCIETY
By: /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
Associate Director
AXA Equity & Law Investment
Managers, Ltd.
ORBIS PENSION TRUSTEES LTD.
By: /s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx
Investment Manager
ASHFORD CAPITAL PARTNERS, L.P.
By: Ashcap Corp., General Partner
By: /s/ Xxxxxxxx X. Xxxxxxx
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Xxxxxxxx X. Xxxxxxx
President
/s/ Xxxxxxxx X. Xxxxxxx
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Xxxxxxxx X. Xxxxxxx
/s/ Xxxxx X. Blazer
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Xxxxx X. Blazer
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SCHEDULE I
INVESTORS
Number of Shares of:
Class A
Common
Stock for
Class A which the
Common Stock for Performance
AA Preferred which the Warrants Warrants are
Name and Address Stock are Exercisable Exercisable
---------------- ------------ ------------------ ------------
AXA Equity & Law Life 166,667 56,250 8,333
Assurance Society
00 Xxxxxxx'x Xxx Xxxxxx
Xxxxxx XX0X 0XX
Xxxxxxx
Facsimile No.:
011-44-71-242-5030
Attn: Mr. Xxxx Xxxxxx
Associate Director
Orbis Pension Trustees Ltd. 111,111 37,500 5,556
c/o Chatsworth Management Services,
Ltd.
Xxx Xxxxxxxxx Xxxxx
Xxxxxx X0 0XX
Xxxxxxx
Facsimile No.:
011-44-71-298-0002
Attn: Mr. Xxxxx Xxxxx
Investment Manager
Ashford Capital Partners, L.P. 44,444 15,000 2,222
0000 Xxxxxxx Xxxx
Xxxxx X-000
Xxxxxxxxxx, XX 00000
Facsimile No.:
(000) 000-0000
Attn: Xx. Xxxxxxxx X. Xxxxxxx,
President
Xxxxxxxx X. Xxxxxxx 11,111 3,750 556
c/o Ashford Capital Partners, L.P.
0000 Xxxxxxx Xxxx
Xxxxx x-000
Xxxxxxxxxx, XX 00000
Facsimile No.:
(000) 000-0000
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