EXHIBIT 10.16
FIRST AMENDMENT
TO
AMENDED AND RESTATED WARRANT AGREEMENT
This FIRST AMENDMENT TO AMENDED AND RESTATED WARRANT AGREEMENT (this
"Amendment") is dated as of January 31, 1997 by and among HARRY'S FARMERS
MARKET, INC., a Georgia corporation (the "Company") and CREDITANSTALT-
BANKVEREIN, a banking company organized under the laws of Austria
("Creditanstalt").
Creditanstalt and NationsBank, N.A. (South) (f/k/a as NationsBank of
Georgia, National Association) ("NationsBank") (Creditanstalt and NationsBank
are collectively referred to herein as the "Lenders") and the Company entered
into the Amended and Restated Credit Agreement dated as of December 30, 1994 (as
amended, the "Credit Agreement") pursuant to which the Lenders provided certain
credit facilities to the Company.
In order to induce the Lenders to enter into the Credit Agreement, the
Company entered into an Amended and Restated Warrant Agreement with the Lenders
(the "Warrant Agreement") and issued to the Lenders certain warrants to purchase
up to 360,000 shares of Class A Common Stock of the Company (the "Warrants").
The Company and HFMI Acquisition Corporation, a Delaware corporation
("Newco"), intend to enter into that certain Transaction Agreement (the
"Transaction Agreement"), pursuant to which the Company and Newco will agree to
enter into certain transactions.
Pursuant to the terms of the Transaction Agreement, the Company and Newco
intend to enter into that Secured Loan Agreement (the "Secured Loan Agreement"
and the transactions contemplated therein, including the Option (defined below)
are collectively referred to as the "Loan Transactions"), pursuant to which
Newco will agree to lend to the Company up to $20,000,000 (the "Subordinated
Loans"), subject to those terms and conditions set forth in the Secured Loan
Agreement. In addition, pursuant to the Secured Loan Agreement, Newco will be
granted an option (the "Option") to acquire 500,000 shares of Series B Preferred
Stock, no par value, of the Company (the "Series B Preferred Stock").
Pursuant to the terms of the Transaction Agreement, the Company intends to
sell and issue to Newco warrants to purchase up to 2,000,000 shares of Class A
Common Stock, the terms and conditions of which are set forth in that warrant
attached as Exhibit C to the Transaction Agreement (the "Newco Warrant") (the
issuance and sale of the Newco Warrant and the issuance of Class A Common Stock
upon exercise thereof are herein sometimes collectively referred to the "Newco
Warrant Transactions").
Pursuant to a Trust Agreement (the "Trust Agreement"), the Company and
Wilmington Trust Company, a Delaware banking corporation ("Trustee"), intend to
establish a trust (the "Trust"). Pursuant to a Transfer Agreement among the
Company, Newco, and the Trust (the "Transfer Agreement"), the Company intends to
transfer certain intellectual property of the Company to the Trust and the Trust
shall issue to the Company beneficial interests in the Trust, together with
corresponding irrevocable, exclusive, perpetual licenses to the related
intellectual property. Pursuant to an Acquisition Agreement to be entered into
between the Company and Newco (the "Acquisition Agreement"), the Company will
agree to sell and transfer to Newco certain beneficial interests in the Trust
and to retain certain beneficial interests in the Trust, and the Trust will
grant certain licenses to Newco and the Company (the transactions contemplated
by the Trust Agreement, the Transfer Agreement, and the Acquisition Agreement,
and all related documents, are herein sometimes collectively referred to as the
"Intellectual Property Transactions").
In connection with the foregoing transactions, the Company intends to use
$12,000,000 of the proceeds from the Subordinated Loans to repay $12,000,000 in
principal amount of the Indebtedness under the Credit Documents owed to the
Lenders.
In addition, the Company intends to designate a new class of Series AA
Preferred Stock, no par value (the "AA Preferred Stock"), and exchange 1,222,221
shares of AA Preferred Stock for all of the shares of existing Preferred Stock
of the Company, and to amend the various agreements between ▇▇▇▇▇▇▇ and the
Investors, including the Stockholders' Agreement and the Share and Warrant
Purchase Agreements (the transactions contemplated in connection with the AA
Preferred Stock are collectively referred to as the "Preferred Exchange").
In connection with the foregoing transactions, NationsBank has assigned its
Warrants to Creditanstalt for reissuance and/or returned its Warrants to the
Company for cancellation.
The parties now desire to amend certain provisions of the Warrant Agreement
and waive any adjustments to the number of Warrant Shares (as defined in the
Warrant) for which the Warrants may be exercised that may arise as a result of
the transactions contemplated in the Transaction Agreement, including without
limitation, the Loan Transactions, the Newco Warrant Transactions, the
Intellectual Property Transactions, and all transactions contemplated therein
and thereby.
NOW, THEREFORE, in consideration of these premises, the terms and
conditions herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
Section 1. Definitions. As used in this Amendment, unless otherwise
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defined herein, terms defined in the Warrant Agreement shall have the meaning
set forth therein when used herein.
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Section 2. Warrant Put Option. Section 11 of the Warrant Agreement is
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hereby deleted in its entirety.
Section 3. Exhibit A. The Warrant Agreement is hereby further amended by
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deleting Exhibit A thereto in its entirety and by substituting therefore a new
Exhibit A in the form attached as Exhibit A hereto.
Section 4. Waiver of Certain Anti-Dilution Adjustments. Creditanstalt
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hereby agrees to waive any anti-dilution adjustments to the Conversion Price
provided for in Section 5 of each of the Warrant Certificates that may arise as
a result of the consummation of the Preferred Exchange or the consummation of
the transactions set forth in the Transaction Agreement, including the Loan
Transactions, the Newco Warrant Transactions, the Intellectual Property
Transaction, and any subsequent transactions contemplated therein or thereby
(including without limitation, (i) the issuance of the AA Preferred Stock issued
by the Company pursuant to the Preferred Stock Exchange Agreement dated the date
hereof, (ii) the issuance of Class A Common Stock upon conversion of the AA
Preferred Stock, (iii) the issuance of the Option to purchase Series B Preferred
Stock contemplated by the Transaction Agreement dated the date hereof, (iv) the
issuance of the Series B Preferred Stock pursuant to the Option, (v) the
issuance of Class A Common Stock upon conversion of the Series B Preferred
Stock, (vi) the issuance of the Warrants (as such term is defined in the
Transaction Agreement (the "New Warrants"), and (vii) the issuance of Class A
Common Stock upon exercise of the New Warrants).
Section 5. Reaffirmation. The Company hereby reaffirms to Creditanstalt
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all representations and warranties made by the Company to the Lenders in the
Warrant Agreement (other than the representation set forth in Section 4.1
thereof) on and as of the date hereof with the same force and effect as if such
representations and warranties were set forth in this Amendment in full.
Section 6. Expenses. The Company agrees to pay, immediately upon demand
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by Creditanstalt, all costs, expenses, attorneys' fees, and other charges and
expenses incurred by Creditanstalt in connection with the negotiation,
preparation, execution and delivery of this Amendment and any other instrument,
document, agreement or amendment executed in connection with this Amendment.
Section 7. References to the Warrant Agreement. Each reference to the
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Warrant Agreement shall be deemed to be a reference to the Warrant Agreement as
amended by this Amendment, and as it may from time to time be further amended,
supplemented, restated or otherwise modified in the future by one or more other
written amendments or supplemental or modification agreements entered into
pursuant to the applicable provisions of the Warrant Agreement.
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Section 8. Limitation of Amendment. Except as expressly set forth herein,
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this Amendment shall not be deemed to waive, amend or modify any term or
condition of the Warrant Agreement, each of which is hereby ratified and
reaffirmed and shall remain in full force and effect, nor to serve as a consent
to any matter prohibited by the terms and conditions thereof.
Section 9. Counterparts. This Amendment may be executed in any number of
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counterparts, each of which shall be deemed to be an original and shall be
binding upon all parties, their successors and assigns.
Section 10. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND
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CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF GEORGIA.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date and year first above written.
HARRY'S FARMERS MARKET, INC.
By: /s/ ▇▇▇▇▇ ▇. Blazer
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▇▇▇▇▇ ▇. Blazer, President
Authorized Officer
Attest: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Asst. Secretary
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[CORPORATE SEAL]
CREDITANSTALT-BANKVEREIN, as a Lender
By: /s/
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Name:
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Title:
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By: /s/
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Name:
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Title:
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4
EXHIBIT A
AMENDED AND RESTATED WARRANT CERTIFICATE
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NEITHER THE WARRANT REPRESENTED BY THIS CERTIFICATE NOR THE CLASS A COMMON STOCK
ISSUABLE UPON THE EXERCISE HEREOF HAS BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS, AND NEITHER MAY BE
SOLD OR OTHERWISE TRANSFERRED WITHOUT REGISTRATION UNDER SUCH ACT AND ANY
APPLICABLE STATE SECURITIES LAW UNLESS AN EXEMPTION FROM REGISTRATION IS THEN
AVAILABLE.
WARRANT TO PURCHASE CLASS A COMMON STOCK
OF
HARRY'S FARMERS MARKET, INC.
Date: May 8, 1996
This is to certify that, FOR VALUE RECEIVED, the registered holder hereof,
CREDITANSTALT-BANKVEREIN ("Creditanstalt", and together with any successors and
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assigns hereunder, the "Holder" or the "Holders"), is entitled to purchase,
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subject to the provisions of this Warrant Certificate, from HARRY'S FARMERS
MARKET, INC., a Georgia corporation (the "Company"), 48,000 shares (as such
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number may be adjusted in accordance with Section 5 hereof) of the Company's
Class A Common Stock, no par value per share (such class of stock, together with
any capital stock of the Company into which such class of stock shall be
converted, being referred to herein as "Stock"), at $3.00 per share (as such
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number may be adjusted in accordance with Section 5 hereof) (the "Exercise
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Price"). The number of shares of Stock to be received upon the exercise of this
Warrant and the Exercise Price shall be adjusted from time to time as
hereinafter set forth. The shares of Stock or other securities or property
deliverable upon such exercise, as adjusted from time to time, are hereinafter
sometimes referred to as "Warrant Shares."
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This Amended and Restated Warrant Certificate (this "Warrant Certificate")
amends and restates the Warrant Certificate (the "Warrants", which term includes
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all Warrants issued in substitution therefor) originally issued in connection
with the amendment and restatement on May 8, 1996 of the Warrant Agreement dated
as of December 30, 1994 (as amended, restated, supplemented or otherwise
modified from time to time, the "Warrant Agreement"). The Warrants so issued in
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connection with such amendment and restatement evidence rights to purchase an
aggregate of 120,000 Warrant Shares at the Exercise Price. This Warrant is
subject to the provisions, and is entitled to the benefits, of the Warrant
Agreement.
Section 1. Exercise of Warrant.
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1.1. Manner of Exercise. (a) This Warrant may be exercised by the Holder,
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in whole or in part, at any time or from time to time through and including the
sixth (6th) anniversary of the date hereof (the "Expiration Date") during normal
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business hours on any Business Day (as defined in the Warrant Agreement) by
surrender of this Warrant, together with the form of subscription duly executed
by such Holder in substantially the form attached as Annex A hereto, to the
Company at its office designated pursuant to Section 7.1 of the Warrant
Agreement (or, if such exercise is in connection with an underwritten public
offering of Warrant Shares subject to this Warrant, at the location at which the
underwriting agreement requires that such Warrant Shares be delivered).
(b) Payment of the Exercise Price for the Warrant Shares, if required,
shall be made, at the option of the Holder by certified or bank check or wire
transfer payable to the order of the Company, in any case, in an amount equal to
(A) the number of Warrant Shares specified in such form of subscription,
multiplied by (B) the then current Exercise Price. The Holder shall thereupon
be entitled to receive the number of Warrant Shares specified in such form of
subscription (plus cash in lieu of any fractional share as provided in Section
1.3 hereof).
(c) In lieu of exercising Warrants pursuant to the immediately preceding
clause (a), the Holder shall have the right to require the Company to convert
the Warrants, in whole or in part and at any time or times (the "Conversion
Right"), into Warrant Shares, by surrendering to the Company the Warrant
Certificate evidencing the Warrants to be converted, accompanied by a conversion
notice duly executed by the Holder substantially in the form of Annex C hereto.
Upon exercise of the Conversion Right, the Company shall deliver to the Holder
(without payment by the Holder of any Exercise Price) that number of Warrant
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Shares which is equal to the quotient obtained by dividing (x) the value of the
number of Warrants being converted at the time the Conversion Right is exercised
(determined by subtracting the aggregate Exercise Price for all such Warrants
immediately prior to the exercise of the Conversion Right from the aggregate
current Market Price of that number of Warrant Shares purchasable upon exercise
of such Warrants immediately prior to the exercise of the Conversion Right
(taking into account all applicable adjustments pursuant to Section 5 hereof))
by (y) the Market Price of one share of Stock immediately prior to the exercise
of the Conversion Right. Any references in this Warrant Certificate or the
Warrant Agreement to the "exercise" of any Warrants, and the use of the term
"exercise" herein and thereon, shall be deemed to include (without limitation)
any exercise of the Conversion Right.
1.2. Effective Date. Each exercise of this Warrant pursuant to Section 1.1
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hereof shall be deemed to have been effected immediately prior to the close of
business on the Business Day on which this Warrant is surrendered to the Company
as provided in Section 1.1 hereof (except that if such exercise is in connection
with an underwritten public offering of Warrant Shares subject to this Warrant,
then such exercise shall be deemed to have been effected upon such surrender of
this Warrant). On each such day that an exercise of this Warrant is deemed
effected, the person or persons in whose name or names any certificate or
certificates for Warrant Shares are issuable upon such exercise (as provided in
Section 1.3 hereof) shall be deemed to have become the Holder or Holders of
record thereof.
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1.3. Warrant Share Certificates, Cash for Fractional Warrant Shares and
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Reissuance of Warrants. As promptly as practicable after the exercise of this
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Warrant, in whole or in part, and in any event within five (5) Business Days
thereafter (unless such exercise shall be in connection with a public offering
of Warrant Shares subject to this Warrant, in which event concurrently with such
exercise), the Company at its expense (including the payment by it of any
applicable issue, stamp or other taxes) will cause to be issued in the name of
and delivered to the Holder or, subject to Section 6 of the Warrant Agreement,
such other person as the Holder may direct:
(a) a certificate or certificates for the number of Warrant Shares to which
the Holder shall be entitled upon such exercise plus, in lieu of any
fractional share to which the Holder would otherwise be entitled, cash in an
amount equal to the same fraction of the Market Price (as defined in Section
5.1 hereof) per Warrant Share on the effective date of such exercise; and
(b) in case such exercise is in part only, a new Warrant or Warrants,
substantially identical hereto, representing the rights formerly represented
by this Warrant which have not expired or been exercised.
1.4. Acknowledgment of Obligation. The Company will, at the time of or at
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any time after each exercise of this Warrant, upon the request of the Holder
hereof or of any Warrant Shares issued upon such exercise, acknowledge in
writing its continuing obligation to afford to such Holder all rights
(including, without limitation, any rights to registration of any such Warrant
Shares pursuant to the Registration Rights Annex of the Warrant Agreement (the
"Registration Rights Agreement")) to which such Holder shall continue to be
entitled under this Warrant Certificate, the Warrant Agreement and the
Registration Rights Agreement; provided, that if any such Holder shall fail to
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make any such request, the failure shall not affect the continuing obligation of
the Company to afford such rights to such Holder.
1.5. Conditional Exercise. Notwithstanding any other provision hereof, if
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any exercise of any portion of this Warrant is to be made in connection with a
public offering of Warrant Shares or any transaction described in Section 5.9
hereof, the exercise of any portion of this Warrant may, at the election of the
Holder, be conditioned upon the consummation of the public offering or such
transaction, in which case such exercise shall not be deemed to be effective
until the consummation of such public offering or transaction.
Section 2. Reservation of Shares.
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The Company shall at all times after the date hereof and until the
Expiration Date reserve for issuance and delivery upon exercise of this Warrant
the number of Warrant Shares as shall be required for issuance and delivery upon
exercise in full of this Warrant.
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Section 3. Transfer, Exchange, Assignment or Loss of Warrant.
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3.1. Transfer. This Warrant may be assigned in whole or in part or
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transferred in whole or in part; subject, however, to compliance with the
provisions of the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder (the "Act").
3.2. Procedure for Assignment or Transfer. Any assignment or transfer
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hereunder shall be made by surrender of this Warrant to the Company at its
office designated pursuant to Section 7.1 of the Warrant Agreement, together
with the form of assignment duly executed by the Holder in substantially the
form attached as Annex B hereto and funds sufficient to pay any required
transfer tax. In such event the Company shall, without charge, execute and
deliver a new Warrant or Warrants substantially identical hereto in the name of
the assignee or assignees named in such instrument of assignment and designate
the assignee or assignees as the registered holder or holders on the Company's
records and this Warrant shall promptly be cancelled. This Warrant may be
divided or combined with other Warrants which carry the same rights upon
presentation thereof at the principal office of the Company together with a
written notice signed by the holder thereof, specifying the names and
denominations in which new Warrants are to be issued.
3.3. Loss, Theft, Destruction or Mutilation. Upon receipt by the Company
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of evidence satisfactory to it of the loss, theft, destruction or mutilation of
this Warrant, and (in the case of loss, theft or destruction) of reasonably
satisfactory indemnification to the Company or (in the case of mutilation)
presentation of this Warrant for surrender and cancellation, the Company will
execute and deliver a new Warrant identical hereto and any such lost, stolen,
destroyed or mutilated Warrant shall thereupon become void.
Section 4. Warrant Certificate Holder Not Deemed a Stockholder.
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Except as otherwise provided herein, the Holders shall not, solely because
of holding this Warrant, be entitled to vote, receive dividends or be deemed the
holder of Stock or any other securities of the Company which may at any time be
issuable on the exercise of the Warrant for any purpose whatsoever, nor shall
anything contained herein be construed to confer upon the Holders, as such, any
of the rights of a stockholder of the Company or any right to vote for the
election of directors or upon any matters submitted to stockholders at any
meeting thereof, or to give or withhold consent to any corporate action (whether
upon any recapitalization, issuance of stock, reclassification of stock, change
of par value or change of stock to no par value, consolidation, merger,
conveyance or otherwise), or to receive notice of meetings or other actions
affecting stockholders, or to receive dividend or subscription rights, or
otherwise, until this Warrant shall have been exercised in accordance with the
provisions hereof.
Section 5. Anti-Dilution.
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The number of Warrant Shares for which this Warrant is exercisable and/or
the Exercise Price at which such Warrant Shares may be purchased upon exercise
of this Warrant shall be subject to adjustment from time to time as set forth in
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this Section 5. The Company shall give the Holders notice of any event described
below which requires an adjustment pursuant to this Section 5 at the time of
such event.
5.1. Special Definitions. For purposes of this Section 5 the following
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terms shall have the following meanings:
"Additional Shares of Stock" shall mean all shares of Stock issued by the
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Company after the date hereof, other than (i) the Stock to be issued upon
exercise of any Warrants at any time issued in connection with the Warrant
Agreement, (ii) the Stock to be issued upon conversion of the Preferred Stock ,
(iii) the Stock to be issued upon exercise of the Preferred Stock Warrants; (iv)
the Stock to be issued upon exercise of the Performance Warrants, (v) 200,000
shares of Stock to be issued pursuant to the Company's 1996 Directors Stock
Option Plan, (vi) 475,000 shares of Stock to be issued pursuant to the Company's
Management Incentive Plan and (vii) 300,000 shares of Stock issued or to be
issued pursuant to the Company's 1996 Employee Stock Purchase Plan.
"Convertible Securities" shall mean evidences of indebtedness, shares of
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Preferred Stock or other securities which are convertible into or exchangeable,
with or without payment of additional consideration in cash or property, for
Additional Shares of Stock, either immediately or upon the occurrence of a
specified date or a specified event, other than the Preferred Stock issued
pursuant to the Share and Warrant Purchase Agreements dated December 30, 1994
between the Company, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Nominees Ltd., and certain other investors
(such Agreements to be referred to herein collectively as the "Purchase
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Agreements" and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Nominees Ltd. and such other investors to be
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referred to herein collectively as the "Purchasers".
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"Market Price" shall mean, in respect of any share of Stock on the date of
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determination thereof, the average of the closing prices of sales of the Stock
on all principal United States securities exchanges on which the Stock may at
the time be listed, or, if there shall have been no sales on any such exchange
on any relevant day, the last trading price of such Stock 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. Notwithstanding the foregoing, with respect to the
issuance of Stock by the Company in an underwritten public offering, the Market
Price shall be the per share purchase price paid by the underwriters. If at any
time the Stock is not listed on any exchange or the Nasdaq Stock Market, the
"Market Price" shall be deemed to be the fair market value thereof determined by
an investment banking firm of nationally recognized standing selected by the
Board of Directors of the Company and acceptable to a majority of the Holders,
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 the Stock or any discount
for a minority interest.
"Performance Warrants" shall mean those performance warrants for 61,111
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shares of Stock issued on December 30, 1994 to the Purchasers (as defined
below).
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"Preferred Stock" shall mean those shares of the Company's Series A
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Redeemable Convertible Preferred Stock with a stated value of $9.00 per share.
"Preferred Stock Warrants" shall mean those warrants originally issued in
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connection with the issue and sale by the Company of its Preferred Stock
pursuant to the Purchase Agreements.
5.2. Stock Dividends, Subdivisions and Combinations.
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If at any time the Company shall:
(i) take a record of the holders of its Stock for the purpose of entitling
them to receive a dividend payable in, or other distribution of, Additional
Shares of Stock,
(ii) subdivide its outstanding shares of Stock into a larger number of
shares of Stock, or
(iii) combine its outstanding shares of Stock into a smaller number of
shares of Stock,
then (I) the Warrant Shares for which this Warrant is exercisable immediately
after the occurrence of any such event shall be adjusted to equal the number of
shares of Stock which a record holder of the same number of shares of Stock for
which this Warrant is exercisable immediately prior to the occurrence of such
event would own or be entitled to receive after the happening of such event, and
(II) the Exercise Price shall be adjusted to equal (x) the Exercise Price
multiplied by the Warrant Shares for which this Warrant is exercisable
immediately prior to the adjustment divided by (y) the Warrant Shares for which
this Warrant is exercisable immediately after such adjustment.
5.3. Certain other Distributions. (a) Except as provided in Section 5.3(b),
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if at any time the Company shall take a record of the holders of its Stock for
the purpose of entitling them to receive any dividend or other distribution of:
(i) cash,
(ii) any evidences of its indebtedness, any shares of its Stock or any
other securities or property of any nature whatsoever (other than cash or
Additional Shares of Stock), or
(iii) any warrants or other rights to subscribe for or purchase any
evidences of its indebtedness, any share of its Stock or any other securities
or property of any nature whatsoever (other than cash or Additional Shares of
Stock),
then, (I) the Warrant Shares for which this Warrant is exercisable shall be
adjusted to equal the product of the Warrant Shares for which this Warrant is
exercisable immediately prior to such adjustment multiplied by a fraction (x)
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the numerator of which shall be the Market Price per share of Stock at the date
of taking such record and (y) the denominator of which shall be such Market
Price per share of Stock minus the amount allocable to one share of Stock of any
such cash so distributable and of the fair value (as determined in good faith by
the Board of Directors of the Company) of any and all such evidences of
indebtedness, shares of stock, other securities or property or warrants or other
subscription or purchase rights so distributable, and (II) the Exercise Price
shall be adjusted to equal (x) the Exercise Price multiplied by the Warrant
Shares for which this Warrant is exercisable immediately prior to the adjustment
divided by (y) the Warrant Shares for which this Warrant is exercisable
immediately after such adjustment. A reclassification of the Stock (other than
a change in par value, or from par value to no par value or from no par value to
par value) into shares of Stock and shares of any other class of stock shall be
deemed a distribution by the Company to the Holders of its Stock of such shares
of such other class of stock within the meaning of this Section 5.3 and, if the
outstanding shares of the Stock shall be changed into a larger or smaller number
of shares of the Stock as part of such reclassification, such change shall be
deemed a subdivision or combination, as the case may be, of the outstanding
shares of the Stock within the meaning of Section 5.2.
(b) If at any time the Company shall take a record of the holders of its
Stock for the purpose of entitling them to receive any cash dividend or other
distribution of property of any nature whatsoever (other than Additional Shares
of Stock), and the amount of such cash dividend and the fair market value of any
property so distributed, when added to the amount of cash dividends paid and the
fair market value of any property so distributed during the twelve (12) months
prior to the date of such dividend or distribution, exceeds five percent (5%) of
the aggregate Market Price of the Stock of all of the Company's Stock then
outstanding on the Business Day immediately preceding the record date for such
dividend or distribution, the Holders of the Warrant shall be entitled to
participate in such dividend or distribution as if the Holder had already
exercised this Warrant in full, and such Holder shall receive, at the time such
dividend is paid or such property is distributed, the same kind and per-share
amount of cash or other property as is distributed to the holders of the
Company's Stock.
5.4. Issuance of Additional Shares of Stock. If at any time the Company
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shall (except as hereinafter provided) issue or sell any Additional Shares of
Stock either (A) in exchange for consideration in an amount per Additional Share
of Stock less than the Exercise Price in effect immediately prior to such
issuance or sale of Additional Shares of Stock or (B) in exchange for
consideration in an amount per Additional Share of Stock less than the Market
Price in effect immediately prior to such issuance or sale of Additional Shares
of Stock, then the Exercise Price as to the Warrant Shares for which this
Warrant is exercisable immediately prior to such adjustment shall be adjusted to
equal the price determined by multiplying the Exercise Price by a fraction, of
which
(x) the numerator shall be (1) the number of shares of Stock
outstanding immediately prior to such issuance or sale of Additional
Shares of Stock plus (2) the number of shares of Stock which the
aggregate amount of consideration, if any, received by the Company for
the total number of such Additional Shares of Stock so issued or sold
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would purchase at the greater of (I) the Market Price in effect
immediately prior to such issuance or sale of Additional Shares of Stock
or (II) the Exercise Price in effect immediately prior to such issuance
or sale of Additional Shares of Stock and
(y) the denominator shall be the number of shares of Stock
outstanding immediately after such issuance or sale of Additional Shares
of Stock;
provided, however, that such adjustment shall be made only if the Exercise Price
determined from such adjustment shall be less than the Exercise Price in effect
immediately prior to the issuance of such Additional Shares of Stock. The
provisions of this Section 5.4 shall not apply to any issuance of Additional
Shares of Common Stock for which an adjustment is provided under Section 5.2 or
5.3.
5.5. Issuance of Warrants or Other Rights. If at any time the Company
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shall take a record of the holders of its Stock for the purpose of entitling
them to receive a distribution of, or shall in any manner (whether directly or
by assumption in a merger in which the Company is the surviving corporation)
issue or sell, any warrants or other rights to subscribe for or purchase any
Additional Shares of Stock or any Convertible Securities, whether or not the
rights to exchange or convert thereunder are immediately exercisable, and the
consideration received for such warrants or other rights or such Convertible
Securities shall be less than the Exercise Price or the Market Price in effect
immediately prior to the time of such issue or sale, then the Exercise Price
shall be adjusted as provided in Section 5.4. No further adjustments of the
Exercise Price shall be made upon the actual issue of such Stock or of such
Convertible Securities upon exercise of such warrants or other rights or upon
the actual issue of such Stock upon such conversion or exchange of such
Convertible Securities.
5.6. Issuance of Convertible Securities. If at any time the Company shall
----------------------------------
take a record of the holders of its Stock for the purpose of entitling them to
receive a distribution of, or shall in any manner (whether directly or by
assumption in a merger in which the Company is the surviving corporation) issue
or sell, any Convertible Securities, whether or not the rights to convert
thereunder are immediately exercisable, and the consideration received for such
stock shall be less than the Exercise Price or the Market Price in effect
immediately prior to the time of such issue or sale, then the Exercise Price
shall be adjusted as provided in Section 5.4. No adjustment of the Exercise
Price shall be made under this Section 5.6 upon the issuance of any Convertible
Securities which are issued pursuant to the exercise of any warrants or other
subscription or purchase rights therefor, if any such adjustment shall
previously have been made upon the issuance of such warrants or other rights
pursuant to Section 5.5. No further adjustments of the Exercise Price shall be
made upon the actual issue of such Stock upon conversion of such Convertible
Securities and, if any issue or sale of such Convertible Securities is made upon
exercise of any warrant or other right to subscribe for or to purchase any such
Convertible Securities for which adjustments of the Exercise Price have been or
are to be made pursuant to other provisions of this Section 5, no further
adjustments of the Exercise Price shall be made by reason of such issue or sale.
5.7. Antidilution Adjustments Under Other Securities. Without limiting any
-----------------------------------------------
other rights available hereunder to the Holders of the Warrants, if there is an
antidilution adjustment (i) under any Convertible Securities, whether issued
A-8
prior to or after the date hereof or (ii) under any rights, options or warrants
to purchase Additional Shares of Stock, whether issued prior to or after the
date hereof which, in either case, results in a reduction in the exercise or
purchase price with respect to such security or rights or results in an increase
in the number of Additional Shares of Stock obtainable under such Convertible
Security, right, option or warrant, then an adjustment shall be made to the
Exercise Price hereunder. Any such adjustment pursuant to this Section 5.7
shall be whichever of the following results in a lower Exercise Price: (A) a
reduction in the Exercise Price equal to the percentage reduction in such
exercise or purchase price with respect to such Convertible Security, right,
option or warrant or (B) a reduction in the Exercise Price which will result in
the same percentage increase in the number of Warrant Shares available hereunder
as the percentage increase in the number of Additional Shares of Stock available
under such Convertible Security, right, option or warrant. Any such adjustment
under this Section 5.7 shall only be made if it would result in a lower Exercise
Price than that which would be determined pursuant to any other antidilution
adjustment otherwise required hereunder as a result of the event or circumstance
which triggered the adjustment to such Convertible Security, right, option or
warrant, and if an adjustment is made pursuant to this Section 5.7, such other
antidilution adjustment otherwise required hereunder shall not be made as a
result of such event or circumstance.
5.8. Other Provisions Applicable to Adjustments under this Section. The
-------------------------------------------------------------
following provisions shall be applicable to the making of adjustments of the
Warrant Shares for which this Warrant is exercisable and the Exercise Price at
which such Warrant Shares may be purchased upon exercise of this Warrant
provided for in this Section 5:
(a) Computation of Consideration. To the extent that any Additional Shares
----------------------------
of Stock or any Convertible Securities or any warrants or other rights to
subscribe for or purchase any Additional Shares of Stock or any Convertible
Securities shall be issued for cash consideration, the consideration received
by the Company therefor shall be the amount of the cash received by the
Company therefor, or, if such Additional Shares of Stock or Convertible
Securities are offered by the Company for subscription, the subscription
price, or, if such Additional Shares of Stock or Convertible Securities are
sold to underwriters or dealers for public offering without a subscription
offering, the public offering price (in any such case subtracting any amounts
paid or receivable for accrued interest or accrued dividends and any
compensation, discounts or expenses paid or incurred by the Company for and in
the underwriting of, or otherwise in connection with, the issuance thereof).
To the extent that such issuance shall be for a consideration other than cash,
then except as herein otherwise expressly provided, the amount of such
consideration shall be deemed to be the fair value of such consideration at
the time of such issuance as determined in good faith by the Board of
Directors of the Company. In case any Additional Shares of Stock or any
Convertible Securities or any warrants or other rights to subscribe for or
purchase such Additional Shares of Stock or Convertible Securities shall be
issued in connection with any merger in which the Company issues any
securities, the amount of consideration therefor shall be deemed to be the
fair value, as determined in good faith by the Board of Directors of the
Company, of such portion of the assets and business of the nonsurviving
corporation as such Board in good faith shall determine to be attributable to
such Additional Shares of Stock, Convertible Securities, warrants or other
A-9
rights, as the case may be. The consideration for any Additional Shares of
Stock issuable pursuant to any warrants or other rights to subscribe for or
purchase the same shall be the consideration received by the Company for
issuing such warrants or other rights plus the additional consideration
payable to the Company upon exercise of such warrants or other rights. The
consideration for any Additional Shares of Stock issuable pursuant to the
terms of any Convertible Securities shall be the consideration received by the
Company for issuing warrants or other rights to subscribe for or purchase such
Convertible Securities, plus the consideration paid or payable to the Company
in respect of the subscription for or purchase of such Convertible Securities,
plus the additional consideration, if any, payable to the Company upon the
exercise of the right of conversion or exchange in such Convertible
Securities. In case of the issuance at any time of any Additional Shares of
Stock or Convertible Securities in payment or satisfaction of any dividends
upon any class of stock other than Stock, the Company shall be deemed to have
received for such Additional Shares of Stock or Convertible Securities a
consideration equal to the amount of such dividend so paid or satisfied.
(b) When Adjustments to Be Made. The adjustments required by this Section
---------------------------
5 shall be made whenever and as often as any event requiring an adjustment
shall occur, except that any adjustment of the Warrant Shares for which this
Warrant is exercisable that would otherwise be required may be postponed
(except in the case of a subdivision or combination of shares of the Stock, as
provided for in Section 5.2) up to, but not beyond the date of exercise if
such adjustment either by itself or with other adjustments not previously made
adds or subtracts less than l% of the shares of the Stock for which this
Warrant is exercisable immediately prior to the making of such adjustment.
Any adjustment representing a change of less than such minimum amount (except
as aforesaid) which is postponed shall be carried forward and made as soon as
such adjustment, together with other adjustments required by this Section 5
and not previously made, would result in a minimum adjustment or on the date
of exercise. For the purpose of any adjustment, any event shall be deemed to
have occurred at the close of business on the date of its occurrence.
(c) Fractional Interests. In computing adjustments under this Section 5,
--------------------
fractional interests in the Stock shall be taken into account to the nearest
1/10th of a share.
(d) When Adjustment Not Required. If the Company shall take a record of
----------------------------
the holders of the Stock for the purpose of entitling them to receive a dividend
or distribution or subscription or purchase rights and shall, thereafter and
before the distribution to stockholders thereof, legally abandon its plan to pay
or deliver such dividend, distribution, subscription or purchase rights, then
thereafter no adjustment shall be required by reason of the taking of such
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record and any such adjustment previously made in respect thereof shall be
rescinded and annulled.
(e) Challenge to Good Faith Determination. Whenever the Board of
-------------------------------------
Directors of the Company shall be required to make a determination in good faith
of the fair value of any item under this Section 5, such determination may be
challenged in good faith by a Holder and any dispute shall be resolved by an
investment banking firm of recognized national standing selected by the Company
and acceptable to such Holder. The fees of such investment banker shall be
borne by the Holder if the Company's calculation is determined to be correct and
otherwise by the Company.
(f) Escrow of Property. If the Company shall take a record of the holders
------------------
of its Stock for the purpose of entitling them to receive any distribution of
any kind of property whatsoever, but prior to the payment of such distribution
the Holder exercises this Warrant, upon payment of the Exercise Price, such
property shall be held in escrow for the Holder by the Company to be issued to
the Holder upon the occurrence of such distribution and to the extent such
distribution actually takes place. Notwithstanding any other provision to the
contrary herein, if the distribution for which such record was taken fails to
occur or is rescinded, then such escrowed property shall be returned to the
Company.
5.9. Reorganization, Reclassification, Merger or Consolidation. If the
---------------------------------------------------------
Company shall at any time reorganize or reclassify the outstanding shares of
Stock (other than a change in par value, or from no par value to par value, or
from par value to no par value, or as a result of a subdivision or combination)
or consolidate with or merge into another corporation (where the Company is not
the continuing corporation after such merger or consolidation), the Holders
shall thereafter be entitled to receive upon exercise of this Warrant in whole
or in part, the same kind and number of shares of stock and other securities,
cash or other property (and upon the same terms and with the same rights) as
would have been distributed to the Holder upon such reorganization,
reclassification, consolidation or merger had the Holder exercised this Warrant
immediately prior to such reorganization, reclassification, consolidation or
merger (subject to subsequent adjustments under Section 5 hereof). The Holders
shall pay upon such exercise the Exercise Price that otherwise would have been
payable pursuant to the terms of this Warrant. If any such reorganization,
reclassification, consolidation or merger results in a cash distribution in
excess of the Exercise Price provided by this Warrant, a Holder may, at the
Holder's option, exercise this Warrant without making payment of the Exercise
Price, and in such case the Company shall, upon distribution to the Holder,
consider the Exercise Price to have been paid in full, and in making settlement
to the Holder, shall deduct an amount equal to the Exercise Price from the
amount payable to the Holder. Notwithstanding anything herein to the contrary,
the Company will not effect any such reorganization, reclassification, merger or
consolidation unless prior to the consummation thereof, the corporation who may
be required to deliver any stock, securities or other assets upon the exercise
of this Warrant shall agree by an instrument in writing to deliver such stock,
cash, securities or other assets to the Holder. A sale, transfer or lease of
all or substantially all of the assets of the Company to another person shall be
deemed a reorganization, reclassification, consolidation or merger for the
foregoing purposes.
5.10. Exceptions to Adjustment of Exercise Price and/or Warrant Shares.
----------------------------------------------------------------
Anything herein to the contrary notwithstanding, the Company shall not make any
adjustment of the Exercise Price or the Warrant Shares issuable upon the
exercise of this Warrant in the case of (i) the issuance of the Warrants or any
other Warrants at any time issued in connection with the Warrant Agreement or
the issuance of shares of the Stock upon exercise of any such Warrants, (ii) the
issuance of shares of Stock to holders of the Company's Preferred Stock upon
conversion of all or any portion of their shares of Preferred Stock, (iii) the
issuance of the Preferred Stock Warrants or the issuance of the shares of Stock
A-11
upon exercise of such Preferred Stock Warrants or (iv) the issuance of the
Performance Warrants or the issuance of the shares of Stock upon exercise of
such Performance Warrants.
5.11. Chief Financial Officer's Opinion. Upon each adjustment of the
---------------------------------
Exercise Price and upon each change in the Warrant Shares issuable upon the
exercise of this Warrant, and in the event of any change in the rights of a
Holder by reason of other events herein set forth, then and in each such case,
the Company will promptly obtain an opinion of the chief financial officer of
the Company, stating the adjusted Exercise Price and the new Warrant Shares so
issuable, or specifying the other shares of the Stock, securities or assets and
the amount thereof receivable as a result of such change in rights, and setting
forth in reasonable detail the method of calculation and the facts upon which
such calculation is based. The Company will promptly mail a copy of such
opinion to the Holders. If a Holder disagrees with such calculation, the
Company agrees to obtain within thirty (30) business days an opinion of a firm
of independent certified public accountants selected by the Company's Board of
Directors and acceptable to such Holder to review such calculation and the
opinion of such firm of independent certified public accountants shall be final
and binding on the parties and shall be conclusive evidence of the correctness
of the computation with respect to any such adjustment of the Exercise Price and
any such change in the number of Warrant Shares so issuable. The fees of such
accountants shall be borne by the Holder if the Company's calculation is
determined by such accountants to be correct and otherwise by the Company.
5.12. Company to Prevent Dilution. In case at any time or from time to
---------------------------
time conditions arise by reason of action taken by the Company, which in the
good faith opinion of its Board of Directors or a majority of the Holders are
not adequately covered by the provisions of this Section 5, and which might
materially and adversely affect the exercise rights of the Holders, the Board of
Directors of the Company shall appoint such firm of independent certified public
accountants acceptable to a majority of the Holders, which shall give their
opinion upon the adjustment, if any, on a basis consistent with the standards
established in the other provisions of this Section 5, necessary with respect to
the Exercise Price, so as to preserve, without dilution (other than as
specifically contemplated by this Warrant), the exercise rights of the Holders.
Upon receipt of such opinion, the Board of Directors of the Company shall
forthwith make the adjustments described therein.
Section 6. Character of Shares of Stock.
----------------------------
All shares of the Stock issuable upon the exercise of this Warrant shall,
when issued to a Holder, be duly authorized, validly issued, fully paid and
nonassessable, free and clear of any lien or encumbrance and without any
preemptive rights.
Section 7. Notice to Holder.
----------------
So long as this Warrant shall be outstanding, (i) if the Company shall pay
any dividend or make any distribution upon the Stock otherwise than in cash,
(ii) if the Company shall offer to the holders of Stock, for subscription or
purchase by them, any shares of any class of stock of the Company or any other
rights or (iii) if there shall be any capital reorganization of the Company,
reclassification of the capital stock of the Company, consolidation or merger of
A-12
the Company with or into another corporation, sale, lease or transfer of all or
substantially all of the property and assets of the Company, voluntary or
involuntary dissolution, liquidation or winding up of the Company, then in any
such event, the Company shall cause to be mailed by certified mail to each
Holder, at least 30 days prior to the event described above, a notice containing
a brief description of the proposed action and stating the date or expected date
on which a record is to be taken for the purpose of such dividend, distribution
or rights, or the date or expected date such reclassification, reorganization,
consolidation, merger, conveyance, lease or transfer, dissolution, liquidation
or winding up shall take place or be voted upon by holders of the Stock of
record, and the date or expected date as of which the holders of Stock of record
shall be entitled to exchange their shares of Stock for securities or other
property deliverable upon any such event.
Section 8. Disposition of Warrant Shares.
-----------------------------
The stock certificates of the Company that will evidence the Warrant Shares
or any other security issued or issuable upon exercise of this Warrant will be
imprinted with a conspicuous legend in substantially the following form:
The securities represented by this Certificate have not been registered under
the Securities Act of 1933 (the "Act") or any applicable state securities laws
and may not be sold, pledged, hypothecated, donated or otherwise transferred
(whether or not for consideration) unless registered under the Act and any
applicable state securities laws or in a transaction exempt from such
registrations.
Except as provided in the Registration Rights Agreement, the Company does not
agree to register any of the Warrant Shares for distribution in accordance with
the provisions of the Act or any applicable state securities laws, and the
Company has not agreed to comply with any exemption from registration under the
Act or any applicable state securities laws for the resale of the Warrant
Shares. Hence, it is the understanding of the Holder that by virtue of the
provisions of certain rules respecting "restricted securities" promulgated by
---------------------
the Securities and Exchange Commission, the Warrant Shares may be required to be
held indefinitely, unless and until registered under the Act and any applicable
state securities laws unless an exemption from such registration is available,
in which case the Holders may still be limited as to the number of Warrant
Shares that may be sold.
Section 9. Governing Law.
-------------
This Warrant shall be construed in accordance with the laws of the State of
Georgia applicable to contracts executed and to be performed wholly within such
state without regard to any conflicts of laws principles.
Section 10. Notice.
------
Any notice, demand, document or other communication given or delivered
hereunder shall be in writing, and may be (i) personally delivered, (ii) given
or made by United States registered or certified mail, return receipt requested,
postage prepaid, or (iii) given or made by overnight courier, delivery charges
prepaid, addressed as follows:
A-13
If to the Company: Harry's Farmers Market, Inc.
------------------
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
With a Copy to: Nelson, Mullins, ▇▇▇▇▇ & Scarborough, L.L.P
---------------
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇, Esq.
If to Creditanstalt: Creditanstalt-Bankverein
--------------------
▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇/▇▇/ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇'▇▇▇▇
With a Copy to: Creditanstalt-Bankverein
---------------
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
With a Copy to: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
The Company and the Holder shall each have the right to designate a different
address for itself by notice similarly given. All such notices, demands,
documents or other communication will be deemed to be delivered (i) upon
receipt, if personally delivered, (ii) on the third full Business Day following
the day of mailing, if sent by United States registered or certified mail and
(iii) on the Business Day following the date it was sent, if sent by overnight
courier.
Section 11. Remedies.
--------
The Company stipulates that the remedies at law of the Holder in the event
of any default or threatened default by the Company in the performance of or
compliance with any of the terms of this Warrant are not and will not be
adequate, and that such terms may be specifically enforced by a decree for the
specific performance of any agreement contained herein or by an injunction
against a violation of any of the terms hereof or otherwise, in addition to any
other remedies which may be available at law or in equity.
A-14
Section 12. Company Will Avoid Certain Actions.
----------------------------------
The Company will not, by amendment of its certificate of incorporation or
through any reorganization, transfer of assets, consolidation, merger, issue or
sale of securities or otherwise, avoid or take any action which would have the
effect of avoiding the observance or performance of any of the terms to be
observed or performed hereunder by the Company, but will at all times in good
faith assist in carrying out all of the provisions of this Warrant Certificate
and in the taking of all such action as may be necessary or appropriate in order
to protect the rights of the Holder of this Warrant Certificate against dilution
or other impairment, and in particular, will not cause the par value, if any, of
any share of Stock, to be or become greater than the then effective Exercise
Price.
Section 13. Company Will Not Close Books.
----------------------------
The Company will at no time close its transfer books against the transfer
of this Warrant or of any shares of Stock issued or issuable upon the exercise
of this Warrant in any manner which interferes with the timely exercise of this
Warrant.
Section 14. Successors and Assigns.
----------------------
This Warrant and the rights evidenced hereby shall inure to the benefit of
and be binding upon the successors of the Company and the successors and assigns
of the Holders hereof. The provisions of this Warrant are intended to be for
the benefit of all Holders from time to time of this Warrant and shall be
enforceable by any such Holder.
Section 15. Amendment.
---------
This Warrant Certificate may be modified or amended and any provision
hereof may be waived by a writing executed by the Company and holders of
Warrants representing a majority of the Warrant Shares obtainable upon exercise
of the Warrants.
Section 16. Headings.
--------
Section headings in this Warrant are for reference only and shall not
affect the meaning or construction of any of the provisions hereof.
[Signature on following page]
A-15
IN WITNESS WHEREOF, the Company has executed this Warrant as of the date
first written above.
HARRY'S FARMERS MARKET, INC.
By: _____________________________
Name:
Title:
A-16
ANNEX A
FORM OF SUBSCRIPTION
--------------------
(To be executed only upon exercise of the Warrant in whole or in part)
To HARRY'S FARMERS MARKET, INC.
The undersigned registered holder of the accompanying Warrant hereby
irrevocably exercises such Warrant or portion thereof for, and purchases
thereunder, _______/1/ Warrant Shares (as defined in such Warrant) and herewith
makes payment therefor of $________. The undersigned requests that the
certificates for such Warrant Shares be issued in the name of, and delivered to
________________________________, whose address is
_________________________________.
Dated:
________________________________
(Name must conform to name of holder as specified on
the face of the Warrant)
_________________________________
(Street Address)
__________________________________
(City) (State) (Zip Code)
/1/ Insert the number of Warrant Shares as to which this Warrant is being
exercised. In the case of a partial exercise, a new Warrant or Warrants will be
issued and delivered, representing the unexercised portion of this Warrant, to
the holder surrendering the same.
A-17
ANNEX B
FORM OF ASSIGNMENT
------------------
(To be signed only on transfer of Warrant)
For value received, the undersigned hereby sells, assigns and transfers
unto _______________________________ [Name] of ____________________[Address] the
right represented by the within Warrant to purchase _________ shares of Class A
Common Stock of HARRY'S FARMERS MARKET, INC. to which the within Warrant
relates, and appoints _____________ Attorney to transfer such right on the books
of HARRY'S FARMERS MARKET, INC. with full power of substitution in the premises.
Dated: ________________
________________________________
(Name must conform to name of holder as specified on
the face of the Warrant)
_________________________________
(Street Address)
__________________________________
(City) (State) (Zip Code)
Signed in the presence of:
________________________
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ANNEX C
FORM OF CONVERSION NOTICE
-------------------------
(To be executed only upon conversion of the Warrant in whole or in part)
To HARRY'S FARMERS MARKET, INC.
The undersigned registered holder of the accompanying Warrant hereby
irrevocably elects to exercise its right to convert such Warrant or portion
thereof into _______/2/ Warrant Shares (as defined in such Warrant). The
undersigned requests that the certificates for such Warrant Shares be issued in
the name of, and delivered to ______________________________, whose address is
_________________________________.
Dated:
________________________________
(Name must conform to name of holder as specified on
the face of the Warrant)
_________________________________
(Street Address)
__________________________________
(City) (State) (Zip Code)
--------------
/2/ Insert the number of Warrant Shares as to which this Warrant is being
exercised. In the case of a partial exercise, a new Warrant or Warrants will be
issued and delivered, representing the unexercised portion of this Warrant, to
the holder surrendering the same.
A-19