EXHIBIT 10.6
FIRST AMENDMENT TO TRANSFER AGREEMENT
This First Amendment to Transfer Agreement (the "Amendment") is made
this 3rd day of November, 1997, by Wilmington Trust Company, a Delaware banking
corporation ("Trustee"), as trustee of HFMI Trust (the "Trust"), a Delaware
business trust created on January 30, 1997 under the Delaware Business Trust
Act, as amended, Harry's Farmers Market, Inc., a Georgia corporation ("HFMI"),
and Progressive Food Concepts, Inc., a Delaware corporation formerly known as
"HFMI Acquisition Corporation" ("PFCI").
RECITALS
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A. Pursuant to a series of transactions between PFCI and HFMI on January
31, 1997, including, without limitation, the transaction described in
that certain Acquisition Agreement, dated January 31, 1997, HFMI
acquired and now owns 712.3746 shares of common stock, having a par
value of $0.01 per share, of PFCI (the "Shares").
B. Pursuant to the Acquisition Agreement, HFMI acquired certain rights against
dilution of its interests by requiring PFCI, under certain circumstances,
to issue additional shares of common stock to HFMI.
C. HFMI, Trustee and PFCI entered into that certain Trust Agreement (as
amended on the date hereof, the "Trust Agreement") pursuant to which the
Trust was created and Trustee was appointed the trustee thereof.
D. Pursuant to the terms of the Trust Agreement, the parties executed that
certain Transfer Agreement (the "Transfer Agreement") pursuant to which
HFMI transferred to the Trust certain Intellectual Property and agreed to
transfer to the Trust certain Additional Intellectual Property
E. Trustee issued and delivered to HFMI a Georgia Class Owner Certificate and
a Worldwide Class Owner Certificate, in each case as described in the Trust
Agreement. As required under the Trust Agreement, HFMI immediately
transferred to PFCI the Worldwide Class Owner Certificate.
F. The Trustee, on behalf of the Trust, entered into two separate license
agreements with PFCI and HFMI.
G. HFMI has agreed to sell to PFCI, and PFCI has agreed to redeem from HFMI,
all of the Shares for, among other things, an amendment to the Trust
Agreement as described therein (the "Redemption").
H. The parties desire to amend the Transfer Agreement to reflect and coincide
with certain amendments to the Trust Agreement as described herein.
AGREEMENT
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FOR AND IN CONSIDERATION of the foregoing Recitals, which are incorporated
herein, the mutual covenants expressed below, and other valuable consideration,
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
1. Section 1.01(b) of the Transfer Agreement is hereby amended by adding the
following to the end of the section:
Notwithstanding anything in this section to the contrary, HFMI shall
be entitled, at its option, to acquire, create or develop a new name
to replace the "Harry's in a Hurry" name and the "Harry's" name as
used on and in connection with the operation of Harry's Farmers Market
megastores, in which event, HFMI shall not be required to contribute
such name to the Trust, and such new name will not be included in the
Additional Intellectual Property.
2. The Transfer Agreement shall be amended only as described in the above
particulars. All capitalized terms used herein, but not defined, shall have the
meanings ascribed to them in the Transfer Agreement.
IN WITNESS WHEREOF, the Trustee has caused this Amendment to be executed as
of the day and date shown above.
WILMINGTON TRUST COMPANY, IN ITS CAPACITY AS, AND
ONLY IN ITS CAPACITY AS, TRUSTEE OF HFMI TRUST
BY: ______________________________________
ITS:
HARRY'S FARMERS MARKET, INC.
BY: ______________________________________
ITS:
PROGRESSIVE FOOD CONCEPTS, INC.
BY: _____________________________________
ITS:
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