EXHIBIT 2.4
REGISTRATION RIGHTS AGREEMENT
BY AND AMONG
WHOLE FOODS MARKETS, INC.
AND
CERTAIN STOCKHOLDERS OF
FRESH FIELDS MARKETS, INC.
Dated as of _________, 1996
TABLE OF CONTENTS
Page
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1. Certain Definitions.. . . . . . . . . . . . . . . 1
2. Registration Rights . . . . . . . . . . . . . . . 2
2.1. Demand Registrations . . . . . . . . . . . . 2
2.2. Piggyback Registrations. . . . . . . . . . . 6
2.3. Allocation of Securities Included in
Registration Statement . . . . . . . . . . . 7
2.4. Registration Procedures. . . . . . . . . . . 8
2.5. Registration Expenses. . . . . . . . . . . . 14
2.6. Certain Limitations on Registration Rights . 14
2.7. Limitations on Sale or Distribution of
Other Securities . . . . . . . . . . . . . . 14
2.8. No Required Sale . . . . . . . . . . . . . . 15
2.9. Indemnification. . . . . . . . . . . . . . . 15
3. Underwritten Offerings. . . . . . . . . . . . . . 19
3.1. Requested Underwritten Offerings . . . . . . 19
3.2. Piggyback Underwritten Offerings . . . . . . 20
4. General . . . . . . . . . . . . . . . . . . . . . 20
4.1. Recapitalizations, Exchanges, etc.,
Affecting Merger Shares . . . . . . . . . . 20
4.2. Rule 144 . . . . . . . . . . . . . . . . . . 20
4.3. Nominees for Beneficial Owners . . . . . . . 21
4.4. Amendments and Waivers . . . . . . . . . . . 21
4.5. Notices. . . . . . . . . . . . . . . . . . . 21
4.6. Miscellaneous. . . . . . . . . . . . . . . . 22
4.7. Prior Agreements . . . . . . . . . . . . . . 23
4.8. No Inconsistent Agreements . . . . . . . . . 23
4.9 Termination. . . . . . . . . . . . . . . . . 24
4.10 Third-Party Beneficiaries. . . . . . . . . . 24
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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement"), dated as of
__________, 1996, by and between Whole Foods Markets, Inc., Inc. a Texas
corporation (the "Company"), and certain stockholders of Fresh Fields Markets,
Inc., a Delaware corporation ("Fresh Fields"), that are signatories hereto
(collectively, the "Signatory FF Stockholders").
WHEREAS, the Company has entered into a merger agreement, dated as of
June 17, 1996 (the "Merger Agreement") with Fresh Fields Market, Inc. ("Fresh
Fields"), pursuant to which the Signatory FF Stockholders and other stockholders
of Fresh Fields will receive shares of common stock of the Company; and
WHEREAS, it is a condition precedent to the consummation of the
transactions contemplated by the Merger Agreement that the Company enter into
this Agreement for the purpose of granting certain rights with respect to
registering under the Securities Act of 1933, as amended, the common stock
issuable pursuant to the Merger Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained herein, the parties hereto, intending to be legally bound hereby,
agree as follows:
1. CERTAIN DEFINITIONS.
As used in this Agreement, the following terms shall have the following
meanings:
"COMMISSION" means the Securities and Exchange Commission or any other
federal agency at the time administering the Securities Act.
"COMMON STOCK" means the Common Stock, no par value per share, of the
Company, options or warrants to acquire shares of such Common Stock or
securities convertible into such shares of Common Stock, and any equity
securities issued or issuable with respect to the Common Stock in connection
with a reclassification, recapitalization, merger, consolidation or other
reorganization.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, and the rules and
regulations of the Commission promulgated thereunder, all as the same shall be
in effect from time to time.
"FF STOCKHOLDER" means each Person, including each of the Signatory FF
Stockholders, who holds Merger Shares, and any party who shall hereafter acquire
and hold Merger Shares in accordance with Section 4.7 of this Agreement.
"MERGER AGREEMENT" means that certain merger agreement entered into by and
between the Company and Fresh Fields, dated as of June 17, 1996, pursuant to
which the stockholders of Fresh Fields will receive shares of Common Stock of
the Company in exchange for their shares of Fresh Fields' stock.
"MERGER SHARES" means any (i) shares of Common Stock held as of the
Effective Date (as defined in the Merger Agreement) by any FF Stockholder and
issued in exchange for shares of stock of Fresh Fields (including the shares of
Common Stock placed in escrow pursuant to the Merger Agreement), (ii) shares of
Common Stock issued or issuable upon conversion, exercise or exchange of any
shares of Common Stock held as of the Effective Date by any FF Stockholder and
issued in exchange for shares of stock of Fresh Fields, or warrants or options
to acquire shares of stock of Fresh Fields, and (iii) any shares of Common Stock
issued or issuable, directly or indirectly, with respect to the Common Stock
referenced in clauses (i) or (ii), above by way of stock dividend, stock split
or combination of shares.
"PERSON" means any individual, corporation, limited liability company,
limited or general partnership, joint venture, association, joint-stock company,
trust, unincorporated organization or government or any agency or political
subdivisions thereof.
"RULE 144" means Rule 144 promulgated under the Securities Act or any
successor rule thereto or any complementary rule thereto.
"SECURITIES ACT" means the Securities Act of 1933, as amended, and the
rules and regulations of the Commission thereunder, all as the same shall be in
effect from time to time.
"SIGNATORY FF STOCKHOLDERS" means each Person who is a signatory to this
Agreement other than the Company.
2. REGISTRATION RIGHTS.
2.1. DEMAND REGISTRATIONS.
(a) (i) Subject to Sections 2.1(b) and 2.3 below, at any time and
from time to time, commencing 90 days after the Effective Date, any one or more
of the Signatory FF Stockholders holding at least 800,000 Merger Shares shall
have the right to require the Company to file a registration statement under the
Securities Act (including, without limitation, a shelf registration pursuant to
Rule 415 of the Securities Act) covering all or any part of their respective
Merger Shares, by delivering a written request therefor to the Company
specifying the number of Merger Shares to be included in such registration by
such Signatory FF Stockholder(s) and the intended method of distribution
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thereof. In addition, any one or more of the Signatory FF Stockholders shall
have the right to make a demand for a shelf registration pursuant to Rule 415
including no less than all of the Merger Shares held by such Signatory FF
Stockholder (including its affiliates identified on Schedule III), which right
shall become effective one year from the date hereof. All such requests by any
Signatory FF Stockholder pursuant to this Section 2.1(a)(i) are referred to
herein as "DEMAND REGISTRATION REQUESTS," and the registrations so requested are
referred to herein as "DEMAND REGISTRATIONS" (with respect to any Demand
Registration, the Signatory FF Stockholder(s) making such demand for
registration being referred to as the "Initiating Holder"). No Signatory FF
Stockholder may make more than one Demand Registration Request. (For purposes
of the preceding sentence only, a Signatory FF Stockholder includes all
affiliates of such Signatory FF Stockholder identified on Schedule III). As
promptly as practicable, but no later than ten days after receipt of a Demand
Registration Request, the Company shall give written notice (the "DEMAND
EXERCISE NOTICE") of such Demand Registration Request to all FF Stockholders.
(ii) The Company, subject to Sections 2.3 and 2.6, shall include
in a Demand Registration (x) the Merger Shares of the Initiating Holder and (y)
the Merger Shares of any other FF Stockholder(s) which shall have made a written
request to the Company for inclusion thereof in such registration (which request
shall specify the maximum number of Merger Shares intended to be disposed of by
such FF Stockholder(s)) within 30 days after the receipt of the Demand Exercise
Notice (or, 15 days if, at the request of the Initiating Holder or a Signatory
FF Stockholder, the Company states in such written notice or gives telephonic
notice to all FF Stockholders, with written confirmation to follow promptly
thereafter, that such registration will be on a Form S-3).
(iii) The Company shall, as expeditiously as possible
following, but in no case more than 45 days after, a Demand Registration
Request, use its best efforts to (x) effect such registration under the
Securities Act (including, without limitation, by means of a shelf registration
pursuant to Rule 415 under the Securities Act if so requested and if the Company
is then eligible to use such a registration) of the Merger Shares which the
Company has been so requested to register, for distribution in accordance with
such intended method of distribution, and (y) if requested by the Initiating
Holder or a Signatory FF Stockholder, obtain acceleration of the effective date
of the registration statement relating to such registration.
(b) The Demand Registration rights granted in Section 2.1(a) are
subject to the following limitations:
(i) each registration in respect of a Demand Registration
Request must include at least 800,000 Merger Shares; provided, however, that:
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(x) if the Demand Registration Request is a request for a
shelf registration pursuant to the second sentence in Section 2.1(a)(i), then
such Demand Registration Request may include less than 800,000 Merger Shares,
but must include all of the Merger Shares held by the Signatory FF Stockholder
(including its affiliates identified on Schedule III) making such request;
(y) notwithstanding anything to the contrary in the first
sentence of Section 2.1(a)(i), any Signatory FF Stockholder (together with all
of its affiliates identified on Schedule III) holding less than 800,000 Merger
Shares shall have the right to make a Demand Registration Request pursuant to
the second sentence of Section 2.1(a)(i) to include an amount of Merger Shares
less than 800,000, provided that such Signatory FF Stockholder shall pay all
expenses incurred in connection with such registration, including its legal
fees, which expenses shall not exceed $25,000.
(ii) the Company (x) shall not be required to cause a
registration pursuant to Section 2.1(a)(i) to be declared effective within a
period of 90 days after the effective date of any other registration effected
pursuant to Section 2.1(a)(i) and (y) shall not be obligated to file more than
three registrations statements initiated pursuant to Section 2.1(a)(i) which
become effective (and are not withdrawn or terminated by the Company) or are
rescinded by the Signatory FF Stockholders without reimbursement; PROVIDED,
HOWEVER, that if a registration statement does not include the number of the
Merger Shares requested by a Signatory FF Stockholder to be included in such
registration statement, it shall not be counted as a registration statement
initiated pursuant to Section 2.1(a)(i); and
(iii) if the Board of Directors of the Company, in its good
faith judgment, determines that any registration of Merger Shares should not be
made or continued because it would materially interfere with any material
financing, acquisition, corporate reorganization or merger or other transaction
involving the Company or any of its subsidiaries (a "VALID BUSINESS REASON"),
(x) the Company may postpone filing a registration statement relating to a
Demand Registration Request until such Valid Business Reason no longer exists,
but in no event for more than three months, and (y) in case a registration
statement has been filed relating to a Demand Registration Request, if the Valid
Business Reason has not resulted from actions taken by the Company, the Company
may cause such registration statement to be withdrawn and its effectiveness
terminated or may postpone amending or supplementing such registration statement
until such Valid Business Reason no longer exists, but in no event for more than
three months (such period of postponement or withdrawal under sub clause (x) or
(y) of this clause (iii), the "POSTPONEMENT PERIOD"); and the Company shall give
written notice of its determination to postpone or withdraw a registration
statement and of the fact that the Valid Business Reason for such postponement
or withdrawal no longer exists, in each case, promptly after the occurrence
thereof; PROVIDED, HOWEVER, the Company shall not be
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permitted to postpone or withdraw a registration statement within 12 months
after the expiration of any Postponement Period.
If the Company shall give any notice of postponement or withdrawal of any
registration statement, the Company shall not, during the period of postponement
or withdrawal, register any Common Stock, other than pursuant to a registration
statement on Form S-4 or S-8 (or an equivalent registration form then in
effect). Each FF Stockholder agrees that, upon receipt of any notice from the
Company that the Company has determined to withdraw any registration statement
pursuant to clause (iii) above, such FF Stockholder will discontinue any
disposition of Merger Shares pursuant to such registration statement and, if so
directed by the Company, will deliver to the Company (at the Company's expense)
all copies, other than permanent file copies, then in such FF Stockholder's
possession of the prospectus covering such Merger Shares that was in effect at
the time of receipt of such notice. If the Company shall have withdrawn or
prematurely terminated a registration statement filed under Section 2.1(a)(i)
(whether pursuant to clause (iii) above or as a result of any stop order,
injunction or other order or requirement of the Commission or any other
governmental agency or court), the Company shall not be considered to have
effected an effective registration for the purposes of this Agreement until the
Company shall have filed a new registration statement covering the Merger Shares
covered by the withdrawn registration statement and such registration statement
shall have been declared effective and shall not have been withdrawn. If the
Company shall give any notice of withdrawal or postponement of a registration
statement, the Company shall, at such time as the Valid Business Reason that
caused such withdrawal or postponement no longer exists (but in no event later
than three months after the date of the postponement or withdrawal), use its
best efforts to effect the registration under the Securities Act of the Merger
Shares covered by the withdrawn or postponed registration statement in
accordance with this Section 2.1 (unless the Initiating Holder shall have
withdrawn such request, in which case the Company shall not be considered to
have effected an effective registration for the purposes of this Agreement), and
such registration shall not be withdrawn or postponed pursuant to clause (iii)
above.
(c) The Company, subject to Sections 2.3 and 2.6, may elect to
include in any registration statement and offering made pursuant to
Section 2.1(a)(i), authorized but unissued shares of Common Stock or shares of
Common Stock held by the Company as treasury shares; PROVIDED, HOWEVER, that
such inclusion shall be permitted only to the extent that it is pursuant to and
subject to the terms of the underwriting agreement or arrangements entered into
by the Signatory FF Stockholder(s).
(d) With respect to any Demand Registration, the Signatory FF
Stockholder(s) holding a majority of the Merger Shares being registered in such
Demand Registration shall have the right to designate one managing underwriter.
The Company shall have the right to designate any other managing underwriters,
including a lead
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managing underwriter (such Person, the "Lead Underwriter"); provided,
however, that the designation of the Lead Underwriter shall be subject to the
approval of the Signatory FF Stockholder(s) holding a majority of the shares
to be registered in the Demand Registration, which approval shall not be
withheld unreasonably. If a Qualified Independent Underwriter (as defined in
the rules and regulations of the National Association of Securities Dealers,
Inc. ("NASD") By-Laws) is required to be obtained under applicable law in
connection with any Demand Registration, the Company shall retain a Qualified
Independent Underwriter selected by the Lead Underwriter (and reasonably
acceptable to the Signatory FF Stockholder(s) holding a majority of the
shares to be registered in the Demand Registration), and the Company shall
pay all fees and expenses (other than underwriting discounts and commissions)
of such Qualified Independent Underwriter.
2.2. PIGGYBACK REGISTRATIONS.
(a) If, at any time, the Company proposes or is required to register
any of its equity securities under the Securities Act (other than pursuant to
(i) registrations on such form or similar form(s) solely for registration of
securities in connection with an employee benefit plan or dividend reinvestment
plan or a merger or consolidation or (ii) a Demand Registration under Section
2.1) on a registration statement on Form S-1, Form S-2 or Form S-3 (or an
equivalent general registration form then in effect), whether or not for its own
account, the Company shall give prompt written notice of its intention to do so
to each of the FF Stockholders. Upon the written request of any such FF
Stockholder, made within 15 days following the receipt of any such written
notice (which request shall specify the maximum number of Merger Shares intended
to be disposed of by such Stockholder and the intended method of distribution
thereof), the Company shall, subject to Sections 2.2(b), 2.3 and 2.6 hereof, use
its best efforts to cause all such Merger Shares, the holders of which have so
requested the registration thereof, to be registered under the Securities Act
(with the securities which the Company at the time proposes to register) to
permit the sale or other disposition by such holders (in accordance with the
intended method of distribution thereof) of the Merger Shares to be so
registered. There is no limitation on the number of such piggyback
registrations pursuant to the preceding sentence which the Company is obligated
to effect. No registration effected under this Section 2.2(a) shall relieve the
Company of its obligations to effect Demand Registrations.
(b) If, at any time after giving written notice of its intention to
register any equity securities and prior to the effective date of the
registration statement filed in connection with such registration, the Company
shall determine for any reason not to register or to delay registration of such
equity securities, the Company may, at its election, give written notice of such
determination to all FF Stockholders and (i) in the case of a determination not
to register, shall be relieved of its obligation to register any
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Merger Shares in connection with such abandoned registration, without
prejudice, however, to the rights of FF Stockholders under Section 2.1, and
(ii) in the case of a determination to delay such registration of its equity
securities, shall be permitted to delay the registration of such Merger
Shares requested by an FF Stockholder to be included therein for the same
period as the delay in registering such other equity securities.
(c) Any FF Stockholder shall have the right to withdraw its request
for inclusion of its Merger Shares in any registration statement pursuant to
this Section 2.2 by giving written notice to the Company of its request to
withdraw; PROVIDED, HOWEVER, that (i) such request must be made in writing prior
to the earlier of the execution of the underwriting agreement or the execution
of the custody agreement with respect to such registration and (ii) such
withdrawal shall be irrevocable and, after making such withdrawal, a FF
Stockholder shall no longer have any right to include Merger Shares in the
registration as to which such withdrawal was made.
2.3. ALLOCATION OF SECURITIES INCLUDED IN REGISTRATION STATEMENT.
(a) If any Demand Registration involves an underwritten offering, and
the Lead Underwriter of such offering shall advise the Company that, in its
view, the number of securities requested to be included in such registration by
the FF Stockholders or by the Company exceeds the largest number (the "Section
2.1 Sale Number") that can be sold in an orderly manner in such offering within
a price range acceptable to the participating Signatory FF Stockholder(s), the
Company shall include in such registration:
(i) FIRST, all Merger Shares requested to be included in such
registration by FF Stockholders; PROVIDED, HOWEVER, that, if the number of such
Merger Shares exceeds the Section 2.1 Sale Number, the number of such Merger
Shares (not to exceed the Section 2.1 Sale Number) to be included in such
registration, shall be allocated to the FF Stockholders; PROVIDED, HOWEVER, that
if the number of Merger Shares requested to be included by all FF Stockholders
exceeds the Section 2.1 Sale Number, then the number of such Merger Shares
included in such registration shall be allocated on a PRO RATA basis among all
FF Stockholders requesting that Merger Shares be included in such registration,
based on the number of Merger Shares then owned by each FF Stockholder
requesting inclusion in relation to the number of Merger Shares then owned by
all FF Stockholders requesting inclusion; and
(ii) SECOND, to the extent that the number of Merger Shares to be
included by all FF Stockholders is less than the Section 2.1 Sale Number,
securities that the Company proposes to register.
If, as a result of the proration provisions of this Section 2.3(a), any FF
Stockholder shall not be entitled to include all Merger Shares in a registration
that such FF Stockholder has requested be included, such FF Stockholder may
elect to withdraw its
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request to include Merger Shares in such registration or may reduce the
number requested to be included; PROVIDED, HOWEVER, that (x) such request
must be made in writing prior to the earlier of the execution of the
underwriting agreement with respect to such registration, the execution of
the custody agreement with respect to such registration and 10 days after the
Company provides written notice to a FF Stockholder stating the amount of
Merger Shares that such FF Stockholder shall be entitled to include in a
registration pursuant to this Section 2.3(a) and (y) such withdrawal shall be
irrevocable and, after making such withdrawal, such FF Stockholder shall no
longer have any right to include Merger Shares in the registration as to
which such withdrawal was made.
(b) If any registration pursuant to Section 2.2 involves an
underwritten offering and the Lead Underwriter shall advise the Company that, in
its view, the number of securities requested to be included in such registration
exceeds the number (the "SECTION 2.2 SALE NUMBER") that can be sold in an
orderly manner in such registration within a price range acceptable to the
Company or the FF Stockholders owning a majority of the Merger Shares requested
to be registered in such registration, as the case may be, the Company shall
include in such registration:
(i) FIRST, all Common Stock that the Company proposes to
register for its own account (the "COMPANY SECURITIES"); and
(ii) SECOND, to the extent that the number of Company Securities
is less than the Section 2.2 Sale Number, the remaining shares to be included in
such registration shall be allocated on a PRO RATA basis among all FF
Stockholders requesting that Merger Shares be included in such registration,
based on the number of Merger Shares then owned by each FF Stockholder
requesting inclusion in relation to the number of Merger Shares then owned by
all FF Stockholders requesting inclusion.
2.4. REGISTRATION PROCEDURES.
If and whenever the Company is required by the provisions of this
Agreement to use its best efforts to effect or cause the registration of any
Merger Shares under the Securities Act as provided in this Agreement, the
Company shall, as expeditiously as possible:
(a) prepare and file with the Commission a registration statement on
an appropriate registration form of the Commission for the disposition of such
Merger Shares in accordance with the intended method of disposition thereof,
which form (i) shall be selected by the Company and (ii) shall, in the case of a
shelf registration, be available for the sale of the Merger Shares by the
selling holders thereof and such registration statement shall comply as to form
in all material respects with the requirements of the applicable form and
include all financial statements required by the Commission to be filed
therewith, and the Company shall use its best efforts to cause
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such registration statement to become and remain effective for the time
periods set forth in subsection (b) of this Section 2.4 (PROVIDED, HOWEVER,
that before filing a registration statement or prospectus or any amendments
or supplements thereto, or comparable statements under securities or blue sky
laws of any jurisdiction, the Company will furnish to one counsel for the FF
Stockholders participating in the planned offering (selected by the Signatory
FF Stockholder(s) holding a majority of the Merger Shares included in the
registration) and the underwriters, if any, copies of all such documents
proposed to be filed (including all exhibits thereto), which documents will
be subject to the reasonable review and reasonable comment of such counsel,
and the Company shall not file any registration statement or amendment
thereto or any prospectus or supplement thereto to which the Signatory FF
Stockholders covered by such registration statement or the underwriters shall
reasonably object in writing);
(b) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement effective for
a period not to exceed one year as any seller of Merger Shares pursuant to such
registration statement shall request and to comply with the provisions of the
Securities Act with respect to the sale or other disposition of all Merger
Shares covered by such registration statement in accordance with the intended
methods of disposition by the seller or sellers thereof set forth in such
registration statement; provided, however, that the Company shall have the right
to suspend any shelf registration made pursuant to Rule 415 for up to 180 days
during such one-year period;
(c) furnish, without charge, to each seller of such Merger Shares and
each underwriter, if any, of the securities covered by such registration
statement such number of copies of such registration statement, each amendment
and supplement thereto (in each case including all exhibits), and the prospectus
included in such registration statement (including each preliminary prospectus)
in conformity with the requirements of the Securities Act, and other documents,
as such seller and underwriter may reasonably request in order to facilitate the
public sale or other disposition of the Merger Shares owned by such seller (the
Company hereby consenting to the use in accordance with applicable law of each
such registration statement (or amendment or post-effective amendment thereto)
and each such prospectus (or preliminary prospectus or supplement thereto) by
each such seller of Merger Shares and the underwriters, if any, in connection
with the offering and sale of the Merger Shares covered by such registration
statement or prospectus);
(d) use its best efforts to register or qualify the Merger Shares
covered by such registration statement under such other securities or "blue sky"
laws of such jurisdictions as any sellers of Merger Shares or any managing
underwriter shall reasonably request, and do any and all other acts and things
which may be reasonably
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necessary or advisable to enable such sellers or underwriter, if any, to
consummate the disposition of the Merger Shares in such jurisdictions, except
that in no event shall the Company be required to qualify to do business as a
foreign corporation in any jurisdiction where it would not, but for the
requirements of this paragraph (d), be required to be so qualified, to
subject itself to taxation in any such jurisdiction or to consent to general
service of process in any such jurisdiction;
(e) promptly notify each seller of Merger Shares covered by such
registration statement and each managing underwriter, if any: (i) when the
registration statement, any pre-effective amendment, the prospectus or any
prospectus supplement related thereto or post-effective amendment to the
registration statement has been filed and, with respect to the registration
statement or any post-effective amendment, when the same has become effective;
(ii) of any request by the Commission or state securities authority for
amendments or supplements to the registration statement or the prospectus
related thereto or for additional information; (iii) of the issuance by the
Commission of any stop order suspending the effectiveness of the registration
statement or the initiation of any proceedings for that purpose; (iv) of the
receipt by the Company of any notification with respect to the suspension of the
qualification of any Merger Shares for sale under the securities or blue sky
laws of any jurisdiction or the initiation of any proceeding for such purpose;
(v) of the existence of any fact of which the Company becomes aware which
results in the registration statement, the prospectus related thereto or any
document incorporated therein by reference containing an untrue statement of a
material fact or omitting to state a material fact required to be stated therein
or necessary to make any statement therein not misleading; and (vi) if at any
time the representations and warranties contemplated by Section 3 below cease to
be true and correct in all material respects; and, if the notification relates
to an event described in clause (v), the Company shall promptly prepare and
furnish to each such seller and each underwriter, if any, a reasonable number of
copies of a prospectus supplemented or amended so that, as thereafter delivered
to the purchasers of such Merger Shares, such prospectus shall not include an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein in the light of
the circumstances under which they were made not misleading;
(f) comply with all applicable rules and regulations of the
Commission, and make generally available to its security holders, as soon as
reasonably practicable after the effective date of the registration statement,
an earnings statement (which need not be audited) covering the period of at
least twelve consecutive months beginning with the first day of the Company's
first calendar quarter after the effective date of the registration statement,
which earnings statement shall satisfy the provisions of Section 11(a) of the
Securities Act and Rule 158 thereunder;
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(g) (i) cause all such Merger Shares covered by such registration
statement to be listed on the principal securities exchange on which similar
securities issued by the Company are then listed (if any), if the listing of
such Merger Shares is then permitted under the rules of such exchange, or
(ii) if no similar securities are then so listed, to either cause all such
Merger Shares to be listed on a national securities exchange or to secure
designation of all such Merger Shares as a National Association of Securities
Dealers, Inc. Automated Quotation System ("NASDAQ") "national market system
security" within the meaning of Rule 11Aa2-1 of the Commission or, failing that,
secure NASDAQ authorization for such shares and, without limiting the generality
of the foregoing, take all actions that may be required by the Company as the
issuer of such Merger Shares in order to facilitate the managing underwriter's
arranging for the registration of at least two market makers as such with
respect to such shares with the National Association of Securities Dealers, Inc.
(the "NASD");
(h) provide and cause to be maintained a transfer agent and registrar
for all such Merger Shares covered by such registration statement not later than
the effective date of such registration statement;
(i) enter into such customary agreements (including, if applicable,
an underwriting agreement) and take such other actions as the FF Stockholders
holding a majority of the Merger Shares to be registered in such offering shall
reasonably request in order to expedite or facilitate the disposition of such
Merger Shares. The FF Stockholders that hold Merger Shares which are to be
distributed by such underwriters shall be parties to such underwriting agreement
and may, at their option, require that the Company make to and for the benefit
of such FF Stockholders the representations, warranties and covenants of the
Company which are being made to and for the benefit of such underwriters and
which are of the type customarily provided to institutional investors in
secondary offerings;
(j) obtain an opinion from the Company's counsel and a "cold comfort"
letter from the Company's independent public accountants in customary form and
covering such matters as are customarily covered by such opinions and "cold
comfort" letters, which opinion and letter shall be reasonably satisfactory to
the underwriter, if any, and to the Signatory FF Stockholder(s) participating in
such offering;
(k) deliver promptly to each Signatory FF Stockholder participating
in the offering and each underwriter, if any, copies of all correspondence
between the Commission and the Company, its counsel or auditors and all
memoranda relating to discussions with the Commission or its staff with respect
to the registration statement, other than those portions of any such memoranda
which contain information subject to attorney-client privilege with respect to
the Company, and, upon receipt of such confidentiality agreements as the Company
may reasonably request, make reasonably
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available for inspection by any seller of such Merger Shares covered by such
registration statement, by any underwriter, if any, participating in any
disposition to be effected pursuant to such registration statement and by any
attorney, accountant or other agent retained by any such seller or any such
underwriter, all pertinent financial and other records, pertinent corporate
documents and properties of the Company, and cause all of the Company's
officers, directors and employees to supply all information reasonably
requested by any such seller, underwriter, attorney, accountant or agent in
connection with such registration statement;
(l) use its best efforts to obtain the withdrawal of any order
suspending the effectiveness of the registration statement;
(m) provide a CUSIP number for all Merger Shares, not later than the
effective date of the registration statement;
(n) make reasonably available its employees and personnel and
otherwise provide reasonable assistance to the underwriters (taking into account
the needs of the Company's businesses and the requirements of the marketing
process) in the marketing of Merger Shares in any underwritten offering;
(o) within a reasonable time prior to the filing of any registration
statement, any related prospectus, any amendment to such a registration
statement or amendment or supplement to such a prospectus, provide copies of
such document to the Signatory FF Stockholders and their counsel and to the
underwriter or underwriters, if any; invite the Signatory FF Stockholders and
their counsel to attend drafting sessions with respect to such documents; make
such reasonable changes in any such document prior to or after the filing
thereof as the counsel to the Signatory FF Stockholders or the underwriter may
reasonably request, provided that such changes shall not (x) unreasonably delay
the filing of such document or (y) unreasonably interfere with the good faith
judgment of the Company and its counsel with respect to disclosures made in such
documents about the Company; and make available for discussion of such document
such of the representatives of the Company as shall be reasonably requested by
the Signatory FF Stockholders or by any underwriter;
(p) upon request, at least one day prior to the filing of any
document which is to be incorporated by reference into the registration
statement or the prospectus (after the initial filing of such registration
statement) provide copies of such document to the Signatory FF Stockholders, and
make the Company's representatives reasonably available for discussion of such
document;
(q) furnish to each Signatory FF Stockholder participating in the
offering, without charge, at least one copy of the registration statement and
any post-effective amendments thereto, including financial statements and
schedules, all
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documents incorporated therein by reference and all exhibits (including those
incorporated by reference), and furnish to each managing underwriter, without
charge, as many copies of such registration statement and any post-effective
amendments thereto, including financial statements and schedules, all
documents incorporated therein by reference and all exhibits (including those
incorporated by reference) as reasonably requested by such underwriter;
(r) cooperate with the selling holders of Merger Shares and the
managing underwriter, if any, to facilitate the timely preparation and delivery
of certificates not bearing any restrictive legends representing the Merger
Shares to be sold, and cause such Merger Shares to be issued in such
denominations and registered in such names in accordance with the underwriting
agreement or, if not an underwritten offering, in accordance with the
instructions of the selling holders of Merger Shares at least three business
days prior to any sale of Merger Shares; and
(s) take all such other commercially reasonable actions the Company
deems necessary or advisable in order to expedite or facilitate the disposition
of such Merger Shares.
The Company may require as a condition precedent to the Company's
obligations under this Section 2.4 that each seller of Merger Shares as to which
any registration is being effected furnish the Company such information
regarding such seller and the distribution of such securities as the Company may
from time to time reasonably request provided that such information shall be
used only in connection with such registration.
Each FF Stockholder agrees that upon receipt of any notice from the Company
of the happening of any event of the kind described in clause (v) of
paragraph (e) of this Section 2.4, such FF Stockholder will discontinue its
disposition of Merger Shares pursuant to the registration statement covering
such Merger Shares until such FF Stockholder's receipt of the copies of the
supplemented or amended prospectus contemplated by paragraph (e) of this
Section 2.4 and, if so directed by the Company, will deliver to the Company (at
the Company's expense) all copies, other than permanent file copies, then in
such FF Stockholder's possession of the prospectus covering such Merger Shares
that was in effect at the time of receipt of such notice. In the event the
Company shall give any such notice, the applicable period mentioned in
paragraph (b) of this Section 2.4 shall be extended by the number of days during
such period from and including the date of the giving of such notice to and
including the date when each seller of any Merger Shares covered by such
registration statement shall have received the copies of the supplemented or
amended prospectus contemplated by paragraph (e) of this Section 2.4.
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2.5. REGISTRATION EXPENSES.
Except as provided in Section 2.1(b)(i)(y), all expenses incurred by
the Company in complying with this Article 2, including, without limitation, all
registration and filing fees (including all expenses incident to filing with the
NASD or other exchange), fees and expenses of complying with securities and blue
sky laws, printing expenses, fees and expenses of the Company's counsel and
accountants, and the fees and disbursements of all independent public
accountants (including the expenses of any audit and/or "cold comfort" letter)
shall be paid by the Company; PROVIDED, HOWEVER, that (i) all underwriting
discounts and selling commissions applicable to the Merger Shares, shall be
borne by the seller or sellers thereof, in proportion to the number of Merger
Shares sold by such seller or sellers, and (ii) each seller of Merger Shares
shall pay the attorneys' fees and expenses of any attorney retained by such
seller in connection with the registration.
2.6. CERTAIN LIMITATIONS ON REGISTRATION RIGHTS.
In the case of any registration under Section 2.1 pursuant to an
underwritten offering, or in the case of a registration under Section 2.2 if the
Company has determined to enter into an underwriting agreement in connection
therewith, all securities to be included in such registration shall be subject
to an underwriting agreement and no Person may participate in such registration
unless such Person agrees to sell such Person's securities on the basis provided
therein and completes and executes all reasonable questionnaires and other
documents (including custody agreements and powers of attorney) which must be
executed in connection therewith, and provides such other information to the
Company or the underwriter as may be necessary to register such Person's
securities.
2.7. LIMITATIONS ON SALE OR DISTRIBUTION OF OTHER SECURITIES.
(a) The Company agrees not to effect any public sale or distribution
(other than public sales or distributions solely by and for the account of the
Company of securities issued (x) pursuant to any employee or director benefit or
similar plan or any dividend reinvestment plan or (y) in any acquisition by the
Company) of any shares of Common Stock, or any securities convertible into or
exchangeable or exercisable for shares of Common Stock, during the 14-day period
prior to, and during the 180-day period (or, with respect to a shelf
registration pursuant to Rule 415, the 90-day period) beginning on the later of,
(i) the effective date of the registration statement in connection with a
registration requested pursuant to Section 2.1 hereof or (ii) if applicable, the
commencement of an underwritten offering in connection with a registration
requested pursuant to Section 2.1 hereof, in each case, if requested by the
managing underwriters of such underwritten offering, or for such shorter period
as the Lead Underwriter shall request, in any such case, unless consented to by
such underwriters.
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(b) The Company hereby agrees that, if it shall previously have
received a request for registration pursuant to Section 2.1 or 2.2, and if such
previous registration shall not have been withdrawn or abandoned, the Company
shall not, effect any registration of any of its securities under the Securities
Act (other than a registration on Form S-4 or Form S-8 or any successor or
similar form which is then in effect), whether or not for sale for its own
account, until a period of 180 days shall have elapsed from the effective date
of such previous registration; and the Company shall so provide in any
registration rights agreements hereafter entered into with respect to any of its
securities.
2.8. NO REQUIRED SALE.
Nothing in this Agreement shall be deemed to create an independent
obligation on the part of any FF Stockholder to sell any Merger Shares pursuant
to any effective registration statement.
2.9. INDEMNIFICATION.
(a) In the event of any registration of any securities of the Company
under the Securities Act pursuant to this Article 2, the Company will, and
hereby does, indemnify and hold harmless, to the fullest extent permitted by
law, each seller of Merger Shares, its directors, officers, fiduciaries,
employees and stockholders or general and limited partners (and the directors,
officers, employees, stockholders and partners thereof), each other Person who
participates as an underwriter or a Qualified Independent Underwriter, if any,
in the offering or sale of such securities, each officer, director, employee,
stockholder or partner of such underwriter or Qualified Independent Underwriter,
and each other Person, if any, who controls such seller or any such underwriter
within the meaning of the Securities Act, against any and all losses, claims,
damages or liabilities, joint or several, actions or proceedings (whether
commenced or threatened) in respect thereof ("Claims") and expenses (including
reasonable fees of counsel and any amounts paid in any settlement effected with
the Company's consent, which consent shall not be unreasonably withheld or
delayed) to which each such indemnified party may become subject under the
Securities Act or otherwise, insofar as such Claims or expenses arise out of or
are based upon (i) any untrue statement or alleged untrue statement of a
material fact contained in any registration statement, together with the
documents incorporated by reference therein, under which such securities were
registered under the Securities Act or the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, (ii) any untrue statement or alleged untrue
statement of a material fact contained in any preliminary, final or summary
prospectus or any amendment or supplement thereto, together with the documents
incorporated by reference therein, or the omission or alleged omission to state
therein a material fact required to be stated therein or necessary in order to
make the statements therein, in the light of the circumstances
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under which they were made, not misleading, or (iii) any violation by the
Company of any federal, state or common law, rule or regulation applicable to
the Company and relating to action required of or inaction by the Company in
connection with any such registration, and the Company will reimburse any
such indemnified party for any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
Claim as such expenses are incurred; PROVIDED, HOWEVER, that the Company
shall not be liable to any such indemnified party in any such case to the
extent such Claim or expense arises out of or is based upon any untrue
statement or alleged untrue statement of a material fact or omission or
alleged omission of a material fact made in such registration statement or
amendment thereof or supplement thereto or in any such prospectus or any
preliminary, final or summary prospectus in reliance upon and in conformity
with written information furnished to the Company by or on behalf of such
indemnified party specifically for use therein. Such indemnity and
reimbursement of expenses shall remain in full force and effect regardless of
any investigation made by as on behalf of such indemnified party and shall
survive the transfer of such securities by such seller.
(b) Each FF Stockholder that holds Merger Shares that are included in
the securities as to which any registration under Section 2.1 or 2.2 is being
effected (and, if the Company requires as a condition to including any Merger
Shares in any registration statement filed in accordance with Section 2.1 or
2.2, any underwriter and Qualified Independent Underwriter, if any) shall,
severally and not jointly, indemnify and hold harmless (in the same manner and
to the same extent as set forth in paragraph (a) of this Section 2.9) to the
extent permitted by law the Company, its officers and directors, each Person
controlling the Company within the meaning of the Securities Act and all other
prospective sellers and their directors, officers, general and limited partners
and respective controlling Persons with respect to any untrue statement or
alleged untrue statement of any material fact in, or omission or alleged
omission of any material fact from, such registration statement, any
preliminary, final or summary prospectus contained therein, or any amendment or
supplement thereto, if such statement or alleged statement or omission or
alleged omission was made in reliance upon and in conformity with written
information furnished to the Company or its representatives by or on behalf of
such FF Stockholder (or underwriter or Qualified Independent Underwriter, if
any, with respect to information provided by such underwriter or Qualified
Independent Underwriter), specifically for use therein and reimburse such
indemnified party for any legal or other expenses reasonably incurred in
connection with investigating or defending any such Claim as such expenses are
incurred; PROVIDED, HOWEVER, that the aggregate amount which any such seller of
Merger Shares shall be required to pay pursuant to this Section 2.9(b) and
Sections 2.9(c) and (e) shall in no case be greater than the amount of the net
proceeds received by such person upon the sale of the Merger Shares pursuant to
the registration statement giving rise to such claim. Such indemnity and
reimbursement of expenses shall remain in full force and effect regardless of
any investigation made by
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or on behalf of such indemnified party and shall survive the transfer of such
securities by such seller of Merger Shares.
(c) Indemnification similar to that specified in the preceding
paragraphs (a) and (b) of this Section 2.9 (with appropriate modifications)
shall be given by the Company and each seller of Merger Shares with respect to
any required registration or other qualification of securities under any state
securities and "blue sky" laws.
(d) Any person entitled to indemnification under this Agreement shall
notify promptly the indemnifying party in writing of the commencement of any
action or proceeding with respect to which a claim for indemnification may be
made pursuant to this Section 2.9, but the failure of any indemnified party to
provide such notice shall not relieve the indemnifying party of its obligations
under the preceding paragraphs of this Section 2.9, except to the extent the
indemnifying party is materially prejudiced thereby and shall not relieve the
indemnifying party from any liability which it may have to any indemnified party
otherwise than under this Article 2. In case any action or proceeding is
brought against an indemnified party and it shall notify the indemnifying party
of the commencement thereof, the indemnifying party shall be entitled to
participate therein and, unless in the reasonable opinion of outside counsel to
the indemnified party a conflict of interest between such indemnified and
indemnifying parties may exist in respect of such claim, to assume the defense
thereof jointly with any other indemnifying party similarly notified, to the
extent that it chooses, with counsel reasonably satisfactory to such indemnified
party, and after notice from the indemnifying party to such indemnified party
that it so chooses, the indemnifying party shall not be liable to such
indemnified party for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation; PROVIDED, HOWEVER, that (i) if the indemnifying party
fails to take reasonable steps necessary to defend diligently the action or
proceeding within 20 days after receiving notice from such indemnified party
that the indemnified party believes it has failed to do so; or (ii) if such
indemnified party who is a defendant in any action or proceeding which is also
brought against the indemnifying party reasonably shall have concluded that
there may be one or more legal defenses available to such indemnified party
which are not available to the indemnifying party; or (iii) if representation of
both parties by the same counsel is otherwise inappropriate under applicable
standards of professional conduct, then, in any such case, the indemnified party
shall have the right to assume or continue its own defense as set forth above
(but with no more than one firm of counsel for all indemnified parties in each
jurisdiction, except to the extent any indemnified party or parties reasonably
shall have concluded that there may be legal defenses available to such party or
parties which are not available to the other indemnified parties or to the
extent representation of all indemnified parties by the same counsel is
otherwise inappropriate under applicable standards of professional conduct)
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and the indemnifying party shall be liable for any expenses therefor. No
indemnifying party shall, without the written consent of the indemnified
party, effect the settlement or compromise of, or consent to the entry of any
judgment with respect to, any pending or threatened action or claim in
respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified party is an actual or potential party to such
action or claim) unless such settlement, compromise or judgment (A) includes
an unconditional release of the indemnified party from all liability arising
out of such action or claim and (B) does not include a statement as to or an
admission of fault, culpability or a failure to act, by or on behalf of any
indemnified party.
(e) If for any reason the foregoing indemnity is unavailable or is
insufficient to hold harmless an indemnified party under Sections 2.9(a), (b) or
(c), then each indemnifying party shall contribute to the amount paid or payable
by such indemnified party as a result of any Claim in such proportion as is
appropriate to reflect the relative fault of the indemnifying party, on the one
hand, and the indemnified party, on the other hand, with respect to such
offering of securities. The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the indemnifying party or the indemnified party and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. If, however, the
allocation provided in the second preceding sentence is not permitted by
applicable law, then each indemnifying party shall contribute to the amount paid
or payable by such indemnified party in such proportion as is appropriate to
reflect not only such relative faults but also the relative benefits of the
indemnifying party and the indemnified party as well as any other relevant
equitable considerations. The parties hereto agree that it would not be just
and equitable if contributions pursuant to this Section 2.9(e) were to be
determined by pro rata allocation or by any other method of allocation which
does not take account of the equitable considerations referred to in the
preceding sentences of this Section 2.9(e). The amount paid or payable in
respect of any Claim shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such Claim. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. Notwithstanding anything in this Section 2.9(e) to the
contrary, no indemnifying party (other than the Company) shall be required
pursuant to this Section 2.9(e) to contribute any amount in excess of the net
proceeds received by such indemnifying party from the sale of Merger Shares in
the offering to which the losses, claims, damages or liabilities of the
indemnified parties relate, less the amount of any indemnification payment made
by such indemnifying party pursuant to Sections 2.9(b) and (c).
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(f) The indemnity agreements contained herein shall be in addition to
any other rights to indemnification or contribution which any indemnified party
may have pursuant to law or contract and shall remain operative and in full
force and effect regardless of any investigation made or omitted by or on behalf
of any indemnified party and shall survive the transfer of the Merger Shares by
any such party.
(g) The indemnification and contribution required by this Section 2.9
shall be made by periodic payments of the amount thereof during the course of
the investigation or defense, as and when bills are received or expense, loss,
damage or liability is incurred.
(h) In connection with underwritten offerings, the Company will use
its best efforts to negotiate terms of indemnification that are reasonably
favorable to the various sellers pursuant thereto, as appropriate under the
circumstances.
3. UNDERWRITTEN OFFERINGS.
3.1. REQUESTED UNDERWRITTEN OFFERINGS.
If requested by the Signatory FF Stockholders or underwriters for any
underwritten offering pursuant to a Demand Registration Request, the Company
shall enter into a customary underwriting agreement with the underwriters. Such
underwriting agreement shall be satisfactory in form and substance to the
Signatory FF Stockholder and shall contain such representations and warranties
by, and such other agreements on the part of, the Company and such other terms
as are generally prevailing in agreements of that type, including, without
limitation, indemnities and contribution agreements. Any FF Stockholder
participating in the offering shall be a party to such underwriting agreement
and may, at its option, require that any or all of the representations and
warranties to any FF Stockholder with respect to written information
specifically provided by such FF Stockholder by, and the other agreements on the
part of, the Company to and for the benefit of such underwriters shall also be
made to and for the benefit of such FF Stockholder and that any or all of the
conditions precedent to the obligations of such underwriters under such
underwriting agreement be conditions precedent to the obligations of such FF
Stockholder; PROVIDED, HOWEVER, that the Company shall not be required to make
any representations or warranties with respect to written information
specifically provided by an FF Stockholder for inclusion in the registration
statement. Such underwriting agreement shall also contain such representations
and warranties by the FF Stockholders as are customary in agreements of that
type.
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3.2. PIGGYBACK UNDERWRITTEN OFFERINGS.
In the case of a registration pursuant to Section 2.2 hereof, if the
Company shall have determined to enter into an underwriting agreement in
connection therewith, all of the FF Stockholders' Merger Shares to be included
in such registration shall be subject to such underwriting agreement. Any FF
Stockholder participating in such registration may, at its option, require that
any or all of the representations and warranties by, and the other agreements on
the part of, the Company to and for the benefit of such underwriters shall also
be made to and for the benefit of such FF Stockholders and that any or all of
the conditions precedent to the obligations of such underwriters under such
underwriting agreement be conditions precedent to the obligations of such FF
Stockholders. Such underwriting agreement shall also contain such
representations and warranties by the participating FF Stockholders as are
customary in agreements of that type.
4. GENERAL.
4.1. RECAPITALIZATIONS, EXCHANGES, ETC., AFFECTING MERGER SHARES.
The provisions of this Agreement shall, to the extent reasonably
practicable, apply, to the full extent set forth herein with respect to the
Merger Shares, to any and all securities or capital stock (of the Company or any
successor to the Company and/or any other issuer thereof) which may be issued in
respect of, in exchange for, or in substitution of such Merger Shares, by reason
of, and shall be appropriately adjusted to reflect, any stock dividend, stock
split, reverse stock split, combination, recapitalization, reclassification,
merger, consolidation or otherwise. The adjustments contemplated by this
paragraph shall be made cumulative with respect to all such transactions
contemplated by this Section that occur from time to time. Any issuer of any
such securities other than the Company shall be required to assume in writing,
to the extent relevant, the Company's obligations with respect to the
registration rights granted hereunder or enter into a registration rights
agreement substantially similar to this Agreement and giving effect to the
allocations and adjustments contemplated by this Section, in connection with any
such transaction pursuant to which the FF Stockholders shall receive securities
of such issuer, as contemplated by this Section.
4.2. RULE 144.
The Company covenants that (i) so long as it remains subject to the
reporting provisions of the Exchange Act, it will timely file the reports
required to be filed by it under the Securities Act or the Exchange Act
(including, but not limited to, the reports under Sections 13 and 15(d) of the
Exchange Act referred to in subparagraph (c)(1) of Rule 144 under the Securities
Act), and (ii) will take such further action as any FF Stockholder may
reasonably request, all to the extent required from time to time to enable such
FF Stockholder to sell Merger Shares without registration under the
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Securities Act within the limitation of the exemptions provided by (A) Rules
144 and 145 under the Securities Act, as such Rules may be amended from time
to time, or (B) any similar rule or regulation hereafter adopted by the
Commission. Upon the request of any FF Stockholder, the Company will deliver
to such FF Stockholder a written statement as to whether it has complied with
such requirements.
4.3. NOMINEES FOR BENEFICIAL OWNERS.
If Merger Shares are held by a nominee for the beneficial owner
thereof, the beneficial owner thereof may, at its option, be treated as the
holder of such Merger Shares for purposes of any request or other action by any
FF Stockholder pursuant to this Agreement (or any determination of any number or
percentage of shares constituting Merger Shares held by any FF Stockholder(s)
contemplated by this Agreement), provided that the Company shall have received
assurances reasonably satisfactory to it of such beneficial ownership.
4.4. AMENDMENTS AND WAIVERS.
This Agreement may be amended, modified, supplemented or waived only
upon the written agreement of the Company and the Signatory FF Stockholders
holding at least two-thirds of the Merger Shares then held by all Signatory FF
Stockholders.
4.5. NOTICES.
All notices, demands, requests or other communications that may be or
are required to be given, served or sent by any party to any other party
pursuant to this Agreement shall be in writing (and shall be deemed to have been
duly given upon receipt) and shall be mailed by first-class, overnight,
registered or certified mail, return receipt requested, postage prepaid, or
transmitted by hand delivery or facsimile transmission, addressed as follows:
(i) if to WFM:
601 North Lamar Blvd., Suite 300
Austin, Texas 78703
Attention: John Mackey, Chairman and CEO
Facsimile: 512-477-1301
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with a copy (which shall not constitute notice) to:
Crouch & Hallett, L.L.P.
717 North Harwood Street
Suite 1400
Dallas, Texas 75201
Attention: Bruce H. Hallett
Facsimile: 214-953-3154
(ii) if to any of the Signatory Stockholders, to the
address set forth on Schedule I.
(iii) if to any FF Stockholder, to the address set forth on
Schedule II.
Each party may designate by notice in writing a new address to which any notice,
demand, request or communication may thereafter be so given, served or sent.
Each notice, demand, request or communication that is mailed, delivered or
transmitted in the manner described above shall be deemed sufficiently given,
served, sent and received for all purposes at such time as it is delivered to
the addressee (with the return receipt, the delivery receipt or the affidavit of
messenger being deemed conclusive evidence of such delivery) or at such time as
delivery is refused by the addressee upon presentation.
4.6. MISCELLANEOUS.
(a) This Agreement shall be binding upon and inure to the
benefit of and be enforceable by the parties hereto and the respective
successors, personal representatives and assigns of the parties hereto, whether
so expressed or not; PROVIDED, HOWEVER, that no FF Stockholder may assign any
registration rights under this Agreement to a third party, except that any
Signatory FF Stockholder may assign its rights under this Agreement to any
stockholder or affiliate of such Signatory FF Stockholder, or a successor to
such Signatory FF Stockholder by merger, acquisition, or otherwise by operation
of law. No Person other than an FF Stockholder or its affiliates shall be
entitled to any benefits under this Agreement, except as otherwise expressly
provided herein.
(b) This Agreement and the Merger Agreement (with the documents
referred to herein or therein or delivered pursuant hereto or thereto) embody
the entire agreement and understanding between the parties hereto and supersede
all prior agreements and understandings relating to the subject matter hereof.
(c) This Agreement shall be construed and enforced in accordance
with and governed by the laws of the State of Delaware without giving effect to
the conflicts of law principles thereof.
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(d) The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof. All
section references are to this Agreement unless otherwise expressly provided.
(e) This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
(f) Any term or provision of this Agreement which is invalid or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such invalidity or unenforceability without rendering invalid
or unenforceable the remaining terms and provisions of this Agreement or
affecting the validity or enforceability of any of the terms or provisions of
this Agreement in any other jurisdiction.
(g) The parties hereto acknowledge that there would be no
adequate remedy at law if any party fails to perform any of its obligations
hereunder, and accordingly agree that each party, in addition to any other
remedy to which it may be entitled at law or in equity, shall be entitled to
injunctive relief, including specific performance, to enforce such obligations
without the posting of any bond, and, if any action should be brought in equity
to enforce any of the provisions of this Agreement, none of the parties hereto
shall raise the defense that there is an adequate remedy at law.
(h) Each party hereto shall do and perform or cause to be done
and performed all such further acts and things and shall execute and deliver all
such other agreements, certificates, instruments, and documents as any other
party hereto reasonably may request in order to carry out the intent and
accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.
4.7. PRIOR AGREEMENTS.
Each of the FF Stockholders and the Company hereby agrees that
any agreement previously entered into by it pursuant to which the Company
granted to any FF Stockholder any registration rights shall be superseded by
this Agreement and each such agreement shall be null and void and no longer in
effect.
4.8. NO INCONSISTENT AGREEMENTS.
Neither the Company nor any FF Stockholder will, on or after the
date of this Agreement, enter into any agreement with respect to its securities
which is inconsistent with the rights granted in this Agreement or otherwise
conflicts with the provisions hereof, other than any lock-up agreement with the
underwriters in connection with any registered offering effected hereunder,
pursuant to which the Company shall
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agree not to register for sale, and the Company shall agree not to sell or
otherwise dispose of, Common Stock or any securities convertible into or
exercisable or exchangeable for Common Stock, for a specified period
following the registered offering. Notwithstanding the foregoing, the
Company may grant registration rights to future stockholders in future
registration rights agreements; provided, however, that the Company shall
grant piggyback registration rights to the FF Stockholders in any such future
registration rights agreement, and shall provide in any such future agreement
that the FF Stockholders shall have priority over any such future
stockholders with respect to the inclusion of the Merger Shares in any demand
registration or piggyback registration made pursuant to such future agreement.
4.9. TERMINATION.
This Agreement shall terminate on the earlier of (i) the date on
which the Signatory FF Stockholders no longer hold Merger Shares or (ii) five
years after the date hereof.
4.10. THIRD-PARTY BENEFICIARIES.
The FF Stockholders shall be third-party beneficiaries to this
Agreement.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date set forth above.
WHOLE FOODS MARKETS, INC.
By:
----------------------------------
Name:
Title:
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GS CAPITAL PARTNERS, L.P.
By: GS Advisors, L.P.
Its General Partner
By: GS Advisors, Inc.
Its General Partner
By:
----------------------------------
Name:
Title: Vice President
STONE STREET FUND 1992, L.P.
By: Stone Street Performance Corp.,
General Partner
By:
----------------------------------
Name:
Title: Vice President
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STONE STREET FUND 1993, L.P.
By: Stone Street Resource Corp.,
General Partner
By:
----------------------------------
Name:
Title: Vice President
BRIDGE STREET FUND 1992, L.P.
By: Stone Street Performance Corp.,
Managing General Partner
By:
----------------------------------
Name:
Title: Vice President
BRIDGE STREET FUND 1993, L.P.
By: Stone Street Resource Corp.,
Managing General Partner
By:
----------------------------------
Name:
Title: Vice President
THE GOLDMAN SACHS GROUP, L.P.
By:
By:
----------------------------------
Name:
Title: Vice President
-27-
CARLYLE-FFM PARTNERS, L.P.
By: CG-FFM Management L.P.
its General Partner
By: TC Group, LLC
its General Partner
By:
----------------------------------
Name:
Title:
CARLYLE-FFM PARTNERS II, L.P.
By: CG-FFM Management, L.P.
its General Partner
By: TC Group, LLC
its General Partner
By:
----------------------------------
Name:
Title:
CARLYLE-FFM PARTNERS III, L.P.
By: GC-FFM Management, L.P.
its General Partner
By: TC Group, LLC
its General Partner
By:
----------------------------------
Name:
Title:
-28-
CARLYLE-FFM PARTNERS VI, L.P.
By: CG-FFM Management, L.P.
its General Partner
By: TC Group, LLC
its General Partner
By:
----------------------------------
Name:
Title:
CARLYLE-FFM INVESTORS, L.P.
By: TC Group, LLC
its General Partner
By:
----------------------------------
Name:
Title:
T.C. GROUP, L.L.C.
By: TCG Holdings, L.L.C.
Managing Member
By:
----------------------------------
Name:
Title:
-29-
STEPHEN F. MANDEL, JR.
By:
----------------------------------
Name:
Title:
PUMA, L.P.
By:
----------------------------------
Name:
Title:
LYNX CAPITAL, L.P.
By:
----------------------------------
Name:
Title:
LYNX OVERSEAS CAPITAL, L.P.
By:
----------------------------------
Name:
Title:
-30-
SCHEDULE I
SIGNIFICANT FF STOCKHOLDER NOTICE INFORMATION
GS Capital Partners, L.P.
c/o Goldman, Sachs & Co.
85 Broad Street
19th Floor
New York, New York 10004
Attn: Carla H. Skodinski
Stone Street Fund 1992, L.P.
c/o Goldman, Sachs & Co.
85 Broad Street
19th Floor
New York, New York 10004
Attn: Carla H. Skodinski
Stone Street Fund 1993, L.P.
c/o Goldman, Sachs & Co.
85 Broad Street
19th Floor
New York, New York 10004
Attn: Carla H. Skodinski
Bridge Street Fund 1992, L.P.
c/o Goldman, Sachs & Co.
85 Broad Street
19th Floor
New York, New York 10004
Attn: Carla H. Skodinski
Bridge Street Fund 1993, L.P.
c/o Goldman, Sachs & Co.
85 Broad Street
19th Floor
New York, New York 10004
Attn: Carla H. Skodinski
The Goldman Sachs Group, L.P.
c/o Goldman, Sachs & Co.
85 Broad Street
19th Floor
New York, New York 10004
Attn: Carla H. Skodinski
Carlyle-FFM Partners, L.P.
c/o The Carlyle Group
1001 Pennsylvania Avenue, N.W.
Suite 220 South
Washington, D.C. 20004
Attn: David Dupree
Carlyle-FFM Partners II, L.P.
c/o The Carlyle Group
1001 Pennsylvania Avenue, N.W.
Suite 220 South
Washington, D.C. 20004
Attn: David Dupree
Carlyle-FFM Partners III, L.P.
c/o The Carlyle Group
1001 Pennsylvania Avenue, N.W.
Suite 220 South
Washington, D.C. 20004
Attn: David Dupree
Carlyle-FFM Partners VI, L.P.
c/o The Carlyle Group
1001 Pennsylvania Avenue, N.W.
Suite 220 South
Washington, D.C. 20004
Attn: David Dupree
-2-
Carlyle-FFM Investors, L.P.
c/o The Carlyle Group
1001 Pennsylvania Avenue, N.W.
Suite 220 South
Washington, D.C. 20004
Attn: David Dupree
T.C. Group, L.L.C.
c/o The Carlyle Group
1001 Pennsylvania Avenue, N.W.
Suite 220 South
Washington, D.C. 20004
Attn: David Dupree
Stephen F. Mandel, Jr.
c/o Tiger Management Corp.
101 Park Avenue
47th Floor
New York, New York 10178
Puma, L.P.
c/o Tiger Management Corp.
101 Park Avenue
47th Floor
New York, New York 10178
Lynx Capital, L.P.
c/o Tiger Management Corp.
101 Park Avenue
47th Floor
New York, New York 10178
Lynx Overseas Capital, L.P.
c/o Tiger Management Corp.
101 Park Avenue
47th Floor
New York, New York 10178
-3-
SCHEDULE II
FF STOCKHOLDER NOTICE INFORMATION
SCHEDULE III
AFFILIATES OF SIGNATORY FF STOCKHOLDERS
1. Affiliates of Goldman Sachs & Co.
GS Capital Partners, L.P.
Stone Street Fund 1992, L.P.
Stone Street Fund 1993, L.P.
Bridge Street Fund 1992, L.P.
Bridge Street Fund 1993, L.P.
The Goldman Sachs Group, L.P.
2. Affiliates of The Carlyle Group
Carlyle-FFM Partners, L.P.
Carlyle-FFM Partners II, L.P.
Carlyle-FFM Partners III, L.P.
Carlyle-FFM Partners VI, L.P.
Carlyle-Investors, L.P.
T.C. Group, L.L.C.
3. Affiliates of Tiger Management Corporation
Stephen F. Mandel, Jr.
Puma, L.P.
Lynx Capital, L.P.
Lynx Overseas Capital, L.P.