EXHIBIT 4.9
AMENDED AND RESTATED
STOCKHOLDERS' AGREEMENT
This AMENDED AND RESTATED STOCKHOLDERS' 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 Xxxxxx Xxxxxxx Nominees
------- --
Ltd., an English company.
W I T N E S S E T H:
-------------------
WHEREAS, pursuant to the terms of the Share and Warrant Purchase
Agreement, dated as of December 30, 1994 (the "Share and Warrant Purchase
--------------------------
Agreement"), between the Company and Xxxxxxx (as such term and other capitalized
---------
terms used herein are defined in Section 4 hereof), Xxxxxxx purchased 888,888
shares of the Company's Series A Redeemable Convertible Preferred Stock, stated
value $9.00 per share (the "Series A Preferred Stock"), warrants (the
------------------------
"Warrants") exercisable for 300,000 shares of the Company's Class A Common
--------
Stock, no par value per share (the "Class A Common Stock"), and performance
--------------------
warrants (the "Performance Warrants") exercisable for 44,444 shares of Class A
--------------------
Common Stock;
WHEREAS, the Company, HB, and Xxxxxxx entered into that Stockholders'
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 Common Stock, the "Common Stock"), and no shares of Class A Common Stock
------------
(such shares, along with any shares of Common Stock or other equity securities
of the Company that HB may subsequently acquire, the "HB Shares"); and
---------
WHEREAS, pursuant to the terms of that Preferred Stock Exchange
Agreement of even date herewith between the Company and Xxxxxxx (the "Exchange
Amendment") Xxxxxxx 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"), to
exchange each share of Series A Preferred Stock held by Xxxxxxx for one share of
Series AA Preferred Stock, stated value $9 per share, of the Company (the "AA
Preferred Stock").
WHEREAS, each of Xxxxxxx, XX, 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
1. Rights of Inclusion.
-------------------
(a) In the event HB proposes to Transfer any HB Shares (the
"Transferor Shares") to any Person (the "Buyer"), as a condition to such
------------------ -----
Transfer, HB shall cause the Buyer to offer (the "Inclusion Offer") to purchase
---------------
from Xxxxxxx, at Xxxxxxx'x option, up to that number of Xxxxxxx 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
Xxxxxxx 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 Xxxxxxx Shares free of any liens or encumbrances. HB shall
provide prompt written notice to Xxxxxxx (the "Inclusion Notice") setting forth
----------------
all the terms and conditions of the Inclusion Offer, and Xxxxxxx 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 Xxxxxxx.
(b) Xxxxxxx shall have the right to sell, pursuant to the Inclusion
Offer, Xxxxxxx Shares representing the same percentage of all Xxxxxxx Shares as
the Transferor Shares are of all HB Shares; provided, however, that if Xxxxxxx
elects 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 Xxxxxxx Shares for which Xxxxxxx elects 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 each transferor
shall be reduced so that each transferor is entitled to Transfer the same
percentage of its shares as each other transferor. If Xxxxxxx elects to
exercise such right, Xxxxxxx may, in its sole discretion, determine the
composition of the Xxxxxxx Shares (i.e., the number of the shares of AA
Preferred Stock, Warrants, Performance Warrants and Class A Common Stock to be
included in the Xxxxxxx Shares) to be Transferred to the Buyer pursuant to the
Inclusion Offer. In the event Xxxxxxx chooses to include any AA Preferred Stock
or any Warrants or Performance Warrants in the Xxxxxxx Shares to be Transferred
to the Buyer pursuant to the Inclusion Offer, Xxxxxxx shall, prior to or
simultaneously with such Transfer, convert such AA Preferred Stock into shares
of Class A Common Stock and exercise such Warrants or Performance Warrants into
shares of Class A Common Stock so that Xxxxxxx 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 Xxxxxxx, 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 Xxxxxxx 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 Xxxxxxx Shares (if any) proposed to be Transferred within such ninety
(90) day period, at the closing thereof, Xxxxxxx shall deliver to the Buyer a
certificate or certificates representing the Xxxxxxx Shares to be Transferred
pursuant to the Inclusion Offer, free and clear of all liens and
2
encumbrances, and the Buyer shall pay to Xxxxxxx the purchase price for the
Xxxxxxx Shares so Transferred pursuant to this Section 1 and shall furnish such
other evidence of the completion of such Transfer and the terms thereof as may
be reasonably requested by Xxxxxxx.
(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 Xxxxxxx and its Affiliates cease 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 Xxxxxxx pursuant to the Exchange Agreement and
Warrants acquired by Xxxxxxx 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.
2. Board Observer Rights.
---------------------
(a) Xxxxxxx shall have the right to have one (1) representative (the
"Xxxxxxx Observer") attend meetings of the Company's Board of Directors, or any
-----------------
committee thereof, and the Company shall permit the Xxxxxxx Observer to attend
all such meetings as an observer. The Xxxxxxx Observer shall not have the right
to vote on any matter presented to the Board or any committee thereof. The
Company shall give the Xxxxxxx Observer written notice of each meeting of the
Board of Directors or any committee thereof and all written materials and other
information given to the Company's directors and committee members in the same
manner and at the same time such notices, materials and other information are
given to the directors and committee members. The Company shall reimburse the
Xxxxxxx Observer for travel and other expenses in connection with such meetings
to the same extent that the Company reimburses its directors and committee
members. If the Board of Directors or any committee thereof proposes to take
any action by written consent in lieu of a meeting, the Company shall give
written notice thereof to the Xxxxxxx Observer prior to the effective date of
such consent describing the nature and substance of such action.
(b) Xxxxxxx shall cause the Xxxxxxx Observer to keep confidential all
confidential information provided to it in its capacity as an observer pursuant
to this Section 2; provided, however, that the Xxxxxxx Observer may disclose
such confidential information to Xxxxxxx. Xxxxxxx shall also be bound by this
Section 2(b) confidentiality obligation, except that Xxxxxxx may disclose such
confidential information to its directors, officers, employees, consultants,
advisors and professional representatives who need to know such information so
long as prior to disclosing such confidential information to any such person,
Xxxxxxx shall inform such person of the confidential nature of such information
and of Xxxxxxx'x obligations under this Section 2(b) and direct such person to
treat such information confidentially. The confidentiality obligations
contained in this Section 2(b) shall not apply to any information which (i) is
3
or becomes generally available to and known by the public (other than as a
result of a disclosure by Xxxxxxx or the Xxxxxxx Observer) or (ii) is or becomes
available to Xxxxxxx or the Xxxxxxx Observer on a non-confidential basis from a
source other than the Company.
(c) In the event that Xxxxxxx and its affiliates cease 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 Xxxxxxx pursuant to
the Exchange Agreement and the Warrants acquired by Xxxxxxx pursuant to the
Share and Warrant Purchase Agreement, as applicable, may be converted or
exercised, then the provisions of this Section 2 shall terminate and be of no
further force or effect.
3. Warrant Put Option.
------------------
(a) If a Fundamental Change occurs, Xxxxxxx shall have the right, at
its option, to require the Company to repurchase all, or any portion, of
Xxxxxxx'x Warrants and Class A Common Stock received upon the exercise of its
Warrants (the "Warrant Shares") on the date (the "Repurchase Date") selected by
-------------- ---------------
the Company that is not less than ten (10) nor more than twenty (20) days after
the Warrant Surrender Date at the respective purchase prices specified in
Section 3(b). The Company agrees that it will not complete any Fundamental
Change unless proper provision has been made to satisfy its obligations under
this Section 3.
(b) The purchase price for the Warrants repurchased by the Company
pursuant to this Section 3 shall be the amount equal to (x) (i) the greater of
(A) the Market Price of the Class A Common Stock on the last trading day prior
to the occurrence of the Fundamental Change and (B) the consideration, if any,
to be paid with respect to each share of Class A Common Stock upon the
occurrence of the Fundamental Change, minus (ii) the Exercise Price, multiplied
by (y) the number of shares of Class A Common Stock for which the then
outstanding Warrants are exercisable (the "Warrant Put Purchase Price"). The
--------------------------
purchase price for the Warrant Shares repurchased by the Company pursuant to
this Section 3 shall be an amount equal to (x) the greater of (i) the Market
Price of the Class A Common Stock on the last trading day prior to the
occurrence of the Fundamental Change and (ii) the consideration, if any, to be
paid with respect to each share of Class A Common Stock upon the occurrence of
the Fundamental Change, multiplied by (y) the number of Warrant Shares (the
"Class A Put Purchase Price").
---------------------------
(c) Within thirty (30) days after the occurrence of a Fundamental
Change, the Company shall send Xxxxxxx a notice describing the Fundamental
Change and the repurchase right arising as a result thereof (including a
calculation in reasonable detail of the Warrant Put Purchase Price and Class A
Common Put Price, as applicable, therefor). Such notice shall also describe the
amount and kind of consideration, if any, payable to the holders of the
Company's Warrants and Class A Common Stock as a result of such Fundamental
Change.
(d) To exercise the repurchase right, Xxxxxxx must provide not less
than thirty (30) days notice to the agent for the lender(s) (the "Senior
Lender(s)"), under the Amended and Restated Credit Agreement, dated as of
December 30, 1994, among the Company, NationsBank, N.A. (South), and
Creditanstalt-Bankverein and any amendments, renewals, extensions or
refinancings thereof so long as NationsBank, N.A. (South) and
4
Creditanstalt-Bankverein continue to extend at least forty percent (40%) of the
principal amount of the credit to be provided thereunder (the "Credit
Agreement"), of its intention to exercise the repurchase right. The Senior
Lender(s) or their Agent (under the Credit Agreement) shall, within such thirty
(30) day period, either (A) consent in writing to such exercise or (B) object in
writing to such exercise, such objection to be accompanied by a certification by
the Senior Lender(s) that an Event of Default or Default (as defined in the
Credit Agreement) currently exists under the Credit Agreement or will result
from the Fundamental Change or from the exercise of such repurchase right. In
the event that the Senior Lender(s) have objected to such exercise within such
thirty (30) day period, then Xxxxxxx shall not be entitled to exercise such
repurchase right, and the Company shall have no obligation to repurchase
Xxxxxxx'x Warrants and Warrant Shares. In the event that the Senior Lender(s)
have consented to such exercise, or have not responded in writing within such
thirty (30) day period, then Xxxxxxx may exercise such repurchase right free and
clear of any further claim of the Senior Lender(s), and Xxxxxxx shall surrender,
on or before the date which is, subject to any contrary requirements of
applicable law, seventy-five (75) days after the date of the Section 3(c) notice
from the Company (the "Warrant Surrender Date"), the certificates representing
----------------------
the Warrant Shares and the Warrants with respect to which the right is being
exercised, duly endorsed for transfer to the Company, together with a written
notice of election. If the Events of Default or Defaults disclosed by the Senior
Lender(s) in the certificate provided pursuant to clause (b) above have been
cured or waived and no other Event of Default or Default exists or would occur
as a result thereof, Xxxxxxx may exercise the repurchase right by providing not
less than fifteen (15) days notice to the Senior Lender(s) of its intention to
exercise the repurchase right. If the Senior Lender(s) or their Agent do not
object in writing to such exercise within such fifteen (15) day period, such
objection to be accompanied by a certification by the Senior Lender(s) that an
Event of Default or Default exists or will result from the exercise of such
repurchase right, then Xxxxxxx may exercise such repurchase right free and clear
of any further claim of the Senior Lender(s).
(e) The Company shall use its reasonable efforts (including, if
necessary, refinancing, recapitalization or similar arrangements) to make
available the funds necessary to pay the purchase price upon Xxxxxxx'x exercise
of its rights pursuant to this Section 3. Nonetheless, if the Company is unable
to satisfy its repurchase obligations under this Section 3, the purchase price
payable pursuant to this Section 3 shall accrue interest at an annual rate of
15% from the Repurchase Date until the purchase price and accrued interest are
paid in full. In addition, the Company may elect, in its sole and absolute
discretion, to pay the Warrant Put Purchase Price and the Class A Put Purchase
Price, as applicable, upon Xxxxxxx'x exercise of its rights pursuant to this
Section 3 by delivering shares of Class A Common Stock equal to that number of
shares of Class A Common Stock, rounded to the nearest whole share, determined
by dividing the Warrant Put Purchase Price or the Class A Put Purchase Price, as
applicable, by the Market Price of the Class A Common Stock determined on the
last trading day prior to the Repurchase Date.
(f) In the event that Xxxxxxx, in lieu of, or in addition to,
exercising its repurchase rights under this Section 3 enters into an agreement
with the Company providing for the sale or transfer of all or part of the AA
Preferred Stock, Warrants or Class A Common Stock owned by it, then it shall
provide not less than thirty (30) days notice to the Senior Lender(s) of its
intention to consummate such transaction. The Senior Lender(s) or their Agent
(under the Credit Agreement) shall, within such thirty (30) day period, either
(A) consent in writing to such transaction or (B) object in writing to such
transaction, such objection to be accompanied by a certification by the Senior
Lender(s) that an Event of Default or Default (as defined in the Credit
5
Agreement) currently exists under the Credit Agreement or will result from such
transaction. In the event that the Senior Lender(s) have objected to such
transaction within such thirty (30) day period, then Xxxxxxx shall not be
entitled to consummate such transaction, and the Company shall have no
obligation to consummate such transaction. In the event that the Senior
Lender(s) have consented to such transaction, or have not responded in writing
within such thirty (30) day period, then Xxxxxxx may consummate such transaction
free and clear of any further claim of the Senior Lender(s). If the Events of
Default or Defaults disclosed by the Senior Lender(s) in the certificate
provided pursuant to clause (B) above have been cured or waived and no other
Event of Default or Default exists or would occur as a result thereof, Xxxxxxx
may consummate such transaction by providing not less than fifteen (15) days
notice to the Senior Lender(s) of its intention to consummate such transaction.
If the Senior Lender(s) or their Agent do not object in writing to such
transaction within such fifteen (15) day period, such obligation to be
accompanied by a certification by the Senior Lender(s) that an Event of Default
or Default exists or will result from such transaction, then Xxxxxxx may
consummate such transaction free and clear of any further claim of the Senior
Lender(s).
4. Definitions.
-----------
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 clause hereof.
"Affiliate", when used with respect to any Person, means (i) if such
---------
Person is a corporation, any officer or director thereof 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 AA Preferred Stock, Warrants or Performance Warrants (or of Class
A Common Stock obtained upon conversion of AA Preferred Stock or exercise of
Warrants or Performance Warrants), and the rights under the Share and Warrant
Purchase Agreement or under the Articles of Incorporation, the Warrant
Certificates, this Agreement or the Registration Rights Agreement (as such
certificates and agreements are defined in the Exchange Agreement) (or the
exercise of any such rights, including, without limitation, or sending an
observer to Board or committee meetings of the Company), shall not cause Xxxxxxx
to be deemed to be an "Affiliate" of the Company.
"Buyer" shall have the meaning set forth in Section 1(a) hereof.
-----
6
"Class A Common Stock" shall have the meaning set forth in the first
--------------------
WHEREAS clause hereof.
"Class B Common Stock" shall have the meaning set forth in the third
--------------------
WHEREAS clause hereof.
"Common Stock" shall have the meaning set forth in the third WHEREAS
------------
clause hereof.
"Company" shall have the meaning set forth in the first paragraph hereof.
-------
"Credit Agreement" shall have the meaning set forth in Section 3(d)
----------------
hereof.
"Exercise Price" means the exercise price of the Warrants as set forth
--------------
in the Warrant Certificate, as the same may be amended from time to time, issued
pursuant to the terms of the Share and Warrant Agreement.
"Xxxxxxx" means Xxxxxx Xxxxxxx Nominees Ltd., an English company, and
-------
shall also include any Affiliate, officer or employee of an Affiliate or
investment fund managed by an Affiliate of Xxxxxxx to which Xxxxxxx may transfer
record or beneficial ownership of the AA Preferred Stock, the Warrants, the
Performance Warrants or the Class A Common Stock.
"Xxxxxxx Observer" shall have the meaning set forth in Section 2 hereof.
----------------
"Xxxxxxx Shares" means all AA Preferred Stock, Warrants, Performance
--------------
Warrants and Class A Common Stock owned by Xxxxxxx.
"Fundamental Change" means any of the following events:
------------------
(i) any event that causes HB to cease to be able to vote shares of
stock of the Company that possess more than fifty percent (50%) of the
total voting power of all classes of stock of the Company entitled to vote
generally in the election of directors;
(ii) the sale (or functional equivalent of a sale) of all or
substantially all of the assets of the Company;
(iii) any consolidation of the Company with, or merger of the Company
into, any other Person, any merger of another Person into the Company or
any other business combination involving the Company's stock immediately
prior to giving effect to such transaction owning shares of capital stock
of the surviving Person in such transaction representing (x) fifty percent
(50%) or less of the total voting power of all shares of capital stock of
such surviving Person entitled to vote generally in the election of
directors or (y) fifty percent (50%) or less of the total value of all
capital stock of such surviving Person; or
(iv) the commencement by the Company of a voluntary case under the
Federal bankruptcy laws or any other applicable Federal or state
7
bankruptcy, insolvency or similar law; the consent by the Company to the
entry of an order for relief in an involuntary case under such law or to
the appointment of a receiver, liquidator, assignee, custodian, trustee,
sequester (or other similar official) of the Company or of any substantial
part of its property; any assignment by the Company for the benefit of its
creditors; any admission by the Company in writing of its inability to pay
its debts generally as they become due; the entry of a decree or order for
relief in respect of the Company by a court having jurisdiction in the
premises in an involuntary case under Federal bankruptcy laws or any other
applicable Federal or state bankruptcy, insolvency or similar law
appointing a receiver, liquidator, assignee, custodian, trustee,
sequestrator (or other similar official) of the Company or of any
substantial part of its property, or ordering the winding up or
liquidation of its affairs, and on account of any such event the Company
shall liquidate, dissolve or wind up; or the liquidation, dissolution or
winding up of the Company under any other circumstances.
"HB" shall have the meaning set forth in the first paragraph hereof.
--
"HB Shares" shall have the meaning set forth in the third WHEREAS clause
---------
hereof.
"Inclusion Notice" shall have the meaning set forth in Section 1(a)
----------------
hereof.
"Inclusion Offer" shall have the meaning set forth in Section 1(a) hereof.
---------------
"Market Price" means, as to any security on the date of determination
------------
thereof, the average of the closing prices of such security's sales on all
principal United States securities exchanges on which such security may at the
time be listed, or, if there shall have been no sales on any such exchange on
any day, the last trading price of such security on such day, or if there is no
such price, the average of the bid and asked prices at the end of such day, on
the Nasdaq Stock Market, in each such case averaged for a period of twenty (20)
consecutive Business Days prior to the day as of which Market Price is being
determined; provided that if such security is listed on any United States
securities exchange the terms "Business Days" as used in this sentence means
business days on which such exchange is open for trading. If at any time such
security is not listed on any exchange or the Nasdaq Stock Market, the Market
Price shall be deemed to be the fair value thereof determined by an investment
banking firm of nationally recognized standing selected by the Board of
Directors of the Company and acceptable to Xxxxxxx, as of the most recent
practicable date as of which the determination is to be made, taking into
account the value of the Company as a going concern, and without taking into
account any lack of liquidity of such security or any discount for a minority
interest.
"Performance Warrants" shall have the meaning set forth in the first
--------------------
WHEREAS clause hereof.
"Person" means an individual corporation, partnership, limited
------
liability company, firm, association, joint venture, trust, unincorporated
organization, governmental body, agency, political subdivision or other entity.
8
"Repurchase Date" shall have the meaning set forth in Section 3(a) hereof.
---------------
"Securities Exchange Act" means the Securities and Exchange Act of 1934,
-----------------------
as amended.
"Senior Lender(s)" shall have the meaning set forth in Section 3(d)
----------------
hereof.
"Share and Warrant Purchase Agreement" shall have the meaning set forth in
------------------------------------
the first WHEREAS clause hereof.
"Transfer" means, with respect to any security, any direct or indirect
--------
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)
-----------------
hereof.
"Warrants" shall have the meaning set forth in the first WHEREAS clause
--------
hereof.
"Warrant Shares" shall have the meaning set forth in Section 3(a) hereof.
--------------
"Warrant Surrender Date" shall have the meaning set forth in Section 3(d)
----------------------
hereof.
5. Miscellaneous.
-------------
(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; provided, that no amendment of Section 3(d) or 3(f) will be effective
--------
unless the Senior Lender(s) have also consented thereto in writing. 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 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
9
facsimile numbers:
(i) If to Xxxxxxx to:
Xxxxxx Xxxxxxx Nominees Ltd.
c/x Xxxxxxx Capital Management
1285 Avenue of the Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxx Xxxxxxx
Xxxxxxxxxxx Xxxxx
with a copy to:
Xxxxxx, Xxxxx & Bockius, L.L.P.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Facsimile: 000-000-0000
Attention: Xxxxx X. Xxxxxx
(ii) If to the Company, to:
Harry's Farmers Market, Inc.
0000 Xxxxx Xxxxxxx Xxxx
Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Blazer
with a copy to:
Xxxxxx & Bird
One Atlantic Center
0000 Xxxx Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000-0000
Facsimile No: 000-000-0000
Attn: Xxxx Xxxxxx
(iii) If to HB, to:
Xxxxx X. Blazer
c/o Harry's Farmers Market, Inc.
0000 Xxxxx Xxxxxxx Xxxx
Xxxxxxx, XX 00000
with a copy to:
10
Xxxxxx & Bird
One Atlantic Center
0000 Xxxx Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000-0000
Facsimile No: 000-000-0000
Attn: Xxxx Xxxxxx
(iv) If to the Senior Lender(s), to:
Creditanstalt-Bankverein
Xxxxxxxxx, XX 00000
Facsimile: 000-000-0000
Attention: Xxxx Xxxxx
with a copy to:
Xxxxxxxx Xxxxxxx L.L.P.
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxx 0000
Xxxxxxx, XX 00000-0000
Facsimile: 000-000-0000
Attention: Xxxxx X. Xxxxxxxx
All such notices, requests and other communications will (x) if delivered
personally to the address as provided in this Section 5(d), be deemed given upon
delivery, (y) if delivered by facsimile transmission to the facsimile number as
provided in this Section 5(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 5(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 5(d)). Any
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.
11
(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.
* * * * *
12
IN WITNESS WHEREOF, the parties have duly executed this Amended and
Restated Stockholders' Agreement as of the date first written above.
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
/s/ Xxxxx X. Blazer
------------------------------------
Xxxxx X. Blazer
13
