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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
Whole Foods Market, Inc.
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(Name of Issuer)
Common Stock, no par value
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(Title of Class of Securities)
966837106
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(CUSIP Number)
David J. Greenwald, Esq.
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
(212) 902-1000
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(Name, address and telephone number of person authorized
to receive notices and communications)
August 30, 1996
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(Date of Event which requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b) (3) or (4), check the following box: ______
Check the following box if a fee is being paid with this statement: X
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CUSIP NO.
966837106
- -----------------
- --------------------------------------------------------------------------------
1. Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
Goldman, Sachs & Co.
- --------------------------------------------------------------------------------
2. Check the Appropriate Box if a Member of a Group
(a) X
----
(b) _____
- --------------------------------------------------------------------------------
3. SEC Use Only
- --------------------------------------------------------------------------------
4. Source of Funds
WC
- --------------------------------------------------------------------------------
5. Check Box if Disclosure of Legal Proceedings is Required
Pursuant to Items 2(d) or 2(e)
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- --------------------------------------------------------------------------------
6. Citizenship or place of Organization
New York
- --------------------------------------------------------------------------------
Number of 7 Sole Voting Power
Shares
Beneficially -0-
Owned By ----------------------------
Each 8 Shared Voting Power
Reporting 1,934,407
Person With ----------------------------
9 Sole Dispositive Power
-0-
----------------------------
10 Shared Dispositive Power
1,934,407
----------------------------
11. Aggregate Amount Beneficially Owned by Each Reporting Person
1,934,407
- -----------------------------------------------------------------
12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares
_______
- -----------------------------------------------------------------
13. Percent of Class Represented by Amount in Row (11)
9.9%
- -----------------------------------------------------------------
14. Type of Reporting Person
BD-PN-IA
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Page 2
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CUSIP NO.
966837106
- -----------------
- --------------------------------------------------------------------------------
1. Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
The Goldman Sachs Group, L.P.
- --------------------------------------------------------------------------------
2. Check the Appropriate Box if a Member of a Group
(a) X
----
(b) _____
- --------------------------------------------------------------------------------
3. SEC Use Only
- --------------------------------------------------------------------------------
4. Source of Funds
WC
- --------------------------------------------------------------------------------
5. Check Box if Disclosure of Legal Proceedings is Required
Pursuant to Items 2(d) or 2(e)
-----------
- --------------------------------------------------------------------------------
6. Citizenship or place of Organization
Delaware
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Number of 7 Sole Voting Power
Shares 8,328
Beneficially ----------------------------
Owned By 8 Shared Voting Power
Each 1,934,407
Reporting ----------------------------
Person With 9 Sole Dispositive Power
8,328
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10 Shared Dispositive Power
1,934,407
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11. Aggregate Amount Beneficially Owned by Each Reporting Person
1,942,735
- -----------------------------------------------------------------
12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares
_______
- -----------------------------------------------------------------
13. Percent of Class Represented by Amount in Row (11)
9.9%
- -----------------------------------------------------------------
14. Type of Reporting Person
HC-PN
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Page 3
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_____________________
CUSIP NO.
966837106
- -----------------
- --------------------------------------------------------------------------------
1. Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
GS Advisors, L.P.
- --------------------------------------------------------------------------------
2. Check the Appropriate Box if a Member of a Group
(a) X
----
(b) _____
- --------------------------------------------------------------------------------
3. SEC Use Only
- --------------------------------------------------------------------------------
4. Source of Funds
WC
- --------------------------------------------------------------------------------
5. Check Box if Disclosure of Legal Proceedings is Required
Pursuant to Items 2(d) or 2(e)
-----------
- --------------------------------------------------------------------------------
6. Citizenship or place of Organization
Delaware
- --------------------------------------------------------------------------------
Number of 7 Sole Voting Power
Shares
Beneficially -0-
Owned By ----------------------------
Each 8 Shared Voting Power
Reporting 1,687,717
Person With ----------------------------
9 Sole Dispositive Power
-0-
----------------------------
10 Shared Dispositive Power
1,687,717
----------------------------
11. Aggregate Amount Beneficially Owned by Each Reporting Person
1,687,717
- -----------------------------------------------------------------
12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares
_______
- -----------------------------------------------------------------
13. Percent of Class Represented by Amount in Row (11)
8.6%
- -----------------------------------------------------------------
14. Type of Reporting Person
PN
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Page 4
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- ----------------------
CUSIP NO.
966837106
- -----------------
- --------------------------------------------------------------------------------
1. Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
GS Capital Partners, L.P.
- --------------------------------------------------------------------------------
2. Check the Appropriate Box if a Member of a Group
(a) X
----
(b) _____
- --------------------------------------------------------------------------------
3. SEC Use Only
- --------------------------------------------------------------------------------
4. Source of Funds
WC
- --------------------------------------------------------------------------------
5. Check Box if Disclosure of Legal Proceedings is Required
Pursuant to Items 2(d) or 2(e)
---------
- --------------------------------------------------------------------------------
6. Citizenship or place of Organization
Delaware
- --------------------------------------------------------------------------------
Number of 7 Sole Voting Power
Shares
Beneficially -0-
Owned By ----------------------------
Each 8 Shared Voting Power
Reporting 1,687,717
Person With ----------------------------
9 Sole Dispositive Power
-0-
----------------------------
10 Shared Dispositive Power
1,687,717
----------------------------
11. Aggregate Amount Beneficially Owned by Each Reporting Person
1,687,717
- -----------------------------------------------------------------
12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares
________
- -----------------------------------------------------------------
13. Percent of Class Represented by Amount in Row (11)
8.6%
- -----------------------------------------------------------------
14. Type of Reporting Person
PN
- -----------------------------------------------------------------
Page 5
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ITEM 1. SECURITY AND ISSUER.
This Statement on Schedule 13D relates to the Common Stock, no par
value per share (the "Common Stock"), of Whole Foods Market, Inc., a Texas
corporation (the "Company").
The principal executive offices of the Company are located at 601 N.
Lamar Blvd., # 300, Austin, TX 78703.
ITEM 2. IDENTITY AND BACKGROUND.
This Statement is being filed by GS Capital Partners, L.P. ("GS
Capital"), GS Advisors, L.P. ("GS Advisors, L.P."), Goldman, Sachs & Co.
("Goldman Sachs") and The Goldman Sachs Group, L.P. ("GS Group", and together
with GS Capital, GS Advisors, L.P. and Goldman Sachs, the "Filing Persons")/1/.
Goldman Sachs and GS Group may be deemed, for purposes of this Statement, to own
beneficially shares of Common Stock through GS Capital and through certain
limited partnerships of which affiliates of Goldman Sachs and GS Group are the
general partner or the managing general partner (the "Other Limited
Partnerships" and, together with GS Capital, the "Limited Partnerships").
Goldman Sachs and GS Group each disclaims beneficial ownership of shares of
Common Stock beneficially owned by the Limited Partnerships to the extent of
partnership interests in the Limited Partnerships held by persons other than
Goldman Sachs, GS Group or their affiliates. In addition, GS Group beneficially
owns options to purchase shares of Common Stock, and Goldman Sachs and GS Group
may be
/1/ Neither the present filing nor anything contained herein shall be construed
as an admission that any Filing Person constitutes a "person" for any purpose
other than Section 13(d) of the Securities Exchange Act of 1934.
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deemed to beneficially own 400 shares of Common Stock currently held in
client accounts managed by Goldman Sachs ("Managed Accounts").
The principal business address of each of Goldman Sachs, GS Group, GS
Capital, GS Advisors L.P. and the Other Limited Partnerships is 85 Broad Street,
New York, NY 10004. GS Capital, a Delaware limited partnership, was formed for
the purpose of investing in equity and equity-related securities primarily
acquired or issued in leveraged acquisitions, reorganizations and other private
equity transactions. GS Advisors, L.P., a Delaware limited partnership, is the
sole general partner of GS Capital. Goldman Sachs, a New York limited
partnership, is an investment banking firm and a member of the New York Stock
Exchange, Inc. and other national exchanges. Goldman Sachs also serves as the
investment manager for GS Capital. GS Group, one of the general partners of
Goldman Sachs, owns a 99% interest in Goldman Sachs. GS Group is a Delaware
limited partnership and a holding partnership that engages (directly or
indirectly through subsidiaries or affiliated companies or both) in the business
of buying and selling securities, both foreign and domestic, and in making
investments of behalf of its partners. GS Group is controlled by its general
partners (which consist of the general partners of Goldman Sachs other than GS
Group) as a group, who have delegated to its Executive Committee the power to
act on their behalf with respect to the management of GS Group.
The name, business address, present principal occupation or employment
and citizenship of each of the general partners of Goldman Sachs and of GS Group
who is a natural person are set forth in Schedule I hereto and are incorporated
herein by
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reference. The name, state or place of organization, principal business, address
of principal business and address of principal office of each of the general
partners of Goldman Sachs (other than GS Group) and of GS Group that is not a
natural person are also set forth in Schedule I hereto and incorporated herein
by reference. The name, business address, present principal occupation or
employment and citizenship of each controlling person, if any, director and
executive officer of each corporate general partner of Goldman Sachs are set
forth in Schedule II-A hereto and are incorporated herein by reference. The
name, business address, present principal occupation or employment and
citizenship of each director and executive officer of GS Advisors, Inc., a
Delaware corporation that is the sole general partner of GS Advisors, L.P., are
set forth in Schedule II-B hereto and are incorporated herein by reference. The
members of the Executive Committee of GS Group are those persons listed in
Schedule I who have an asterisk marked next to their name.
During the last five years, none of the Filing Persons, or, to the
knowledge of each of the Filing Persons, any of the persons listed on Schedule I
or Schedule II-A or II-B hereto, (i) has been convicted in a criminal proceeding
(excluding traffic violations or similar misdemeanors) or (ii) except as set
forth in Schedule III hereto, has been a party to a civil proceeding of a
judicial or administrative body of competent jurisdiction and as a result of
such proceeding was or is subject to a judgment, decree or final order enjoining
future violations of, or prohibiting or mandating activities subject to, federal
or state securities laws, or finding any violation with respect to such laws.
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ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
The Limited Partnerships invested $39.4 million in preferred stock
of Fresh Fields Markets, Inc., a Delaware corporation ("Fresh Fields"), in three
transactions from July 1992 to December 1994, and in connection therewith
received warrants to purchase common stock of Fresh Fields. In connection with
the service by employees of Goldman Sachs on the Fresh Fields Board of
Directors, Fresh Fields issued GS Group 15,000 options to purchase Common Stock.
Fresh Fields also issued to the Limited Partnerships warrants to purchase
preferred stock of Fresh Fields in consideration of certain transactions.
On June 17, 1996, the Company entered into the Agreement and Plan of
Merger, as amended, among the Company, Whole Foods Market Mid-Atlantic, Inc. (a
wholly owned subsidiary of the Company, "Merger Sub") and Fresh Fields (the
"Merger Agreement", discussed further in Item 6). The Merger Agreement provided
that Merger Sub would be merged (the "Merger") with and into Fresh Fields, and
Fresh Fields would become a subsidiary of the Company.
On August 30, 1996 (the "Effective Date"), the Merger was consumuated.
Upon consumuation of the Merger and pursuant to the Merger Agreement, the
outstanding equity securities of Fresh Fields were automatically converted into
shares of Common Stock or options or warrants to purchase shares of Common
Stock.
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The funds used by the Limited Partnerships to purchase the securities
of Fresh Fields as described above were obtained by the Limited Partnerships
from capital contributions by the partners of the Limited Partnerships and from
the Limited Partnerships' available funds. The funds used to purchase shares of
Common Stock for the Managed Accounts came from client funds.
None of the persons listed on Schedules I, II-A or II-B hereto has
contributed any funds or other consideration towards the purchase of the
securities of Fresh Fields, except
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insofar as they may be general or limited partners of any of Goldman Sachs or
the Limited Partnerships and have made capital contributions to any of Goldman
Sachs or such Limited Partnerships, as the case may be.
ITEM 4. PURPOSE OF THE TRANSACTION
Each of the Limited Partnerships acquired the Fresh Fields securities
for the purpose of acquiring an equity interest in Fresh Fields. GS Group
received options to purchase Fresh Fields common stock in respect of service by
its employees as directors of Fresh Fields. In the Merger, such Fresh Fields
securities were automatically converted into shares of Common Stock and options
and warrants to purchase Common Stock. In addition, shares of Common Stock held
in Managed Accounts and, therefore, beneficially owned by Goldman Sachs and GS
Group were acquired in the ordinary course of their business.
The terms of the Merger Agreement require that, following the Merger,
the Board of Directors of the Company take action to increase the authorized
number of directors by two members, and GS Capital is entitled to designate one
representative to be named to the Board of Directors of the Company to fill one
of the newly created vacancies. Thereafter, the Company has agreed to nominate
and use its best reasonable efforts to cause the election of a representative of
GS Capital to the Company's Board of Directors so long as the Limited
Partnerships beneficially own at least 50% of the Common Stock issued to them in
connection with the Merger.
6
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A vice president of Goldman Sachs has been designated as the initial
representative of GS Capital for election to the Company's Board of Directors
following the Merger. In that capacity, she will be consulted, and will have the
power to vote, on all matters that are within the purview of the Board of
Directors of the Company.
Pursuant to the Merger Agreement, the Limited Partnerships and GS
Group entered into a Registration Rights Agreement with the Company and the
other parties thereto (as described in Item 6) and GS Capital, as representative
of the former shareholders of Fresh Fields, entered into an Escrow Agreement
with the Company and the other parties thereto. In connection with the execution
of the Merger Agreement, each of the Limited Partnerships entered into another
Agreement, dated as of June 17, 1996, with the Company (the "Other Agreement").
Pursuant to the Other Agreement, each of the Limited Partnerships, along
with other shareholders of Fresh Fields, agreed, subject to certain exceptions,
with the Company not to acquire, or assist, advise or encourage any other
persons in acquiring, directly or indirectly, control of the Company or any of
the Company's securities, businesses or assets for a period of three years,
without the prior consent of the Company. The foregoing description of the Other
Agreement is qualified in its entirety by reference to the Other Agreement, a
copy of which is filed as Exhibit (3).
Other than as disclosed herein, none of the Filing Persons or, to the
knowledge of the Filing Persons, any of the Limited Partnerships that is not a
Filing Person or any of the persons listed on Schedules I, II-A or II-B hereto
has any present plans or
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intentions which would result in or relate to any of the transactions described
in subparagraphs (a) through (j) of Item 4 of Schedule 13D. Each of the Filing
Persons, however, expects to evaluate on an ongoing basis the Company's
financial condition, business, operations and prospects, the market price of the
Common Stock, conditions in the securities markets generally, general economic
and industry conditions and other factors. The Filing Persons may purchase
additional shares of Common Stock or may sell shares of Common Stock from time
to time in public or private transactions (subject, in the case of the Limited
Partnerships and GS Group, to any applicable limitations imposed by the Lock-up
Agreement (as further described in Item 6) or by the Other Agreement or by the
Securities Act of 1933, as amended (the "Securities Act")).
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER
(a) Pursuant to the Merger, GS Capital received 1,332,301 shares of
Common Stock and the Other Limited Partnerships received 219,702 shares of
Common Stock. In addition, in the Merger, GS Capital and the Other Limited
Partnerships received warrants to purchase 177,708 shares and 13,294 shares,
respectively, of Common Stock at $31.519 per share and 177,708 shares and
13,294 shares, respectively, of Common Stock at $37.823 per share, and GS Group
received options to purchase 8,328 shares of Common Stock at $25.22 per share.
In addition, GS Group may be deemed to beneficially own 400 shares of Common
Stock held in Managed Accounts. Accordingly, as of August 30, 1996, GS Group
beneficially owned 1,942,375 shares of Common Stock, Goldman Sachs beneficially
owned 1,934,407 shares of Common Stock, GS Capital beneficially owned 1,687,717
shares of Common Stock and the Other Limited Partnerships beneficially owned
246,290 shares of Common Stock.
Based on information obtained from the Company, 19,139,946 shares
of Common Stock were outstanding as of August 30, 1996. Based on the foregoing,
(i) GS Capital beneficially owns approximately 7.0% and the Other Limited
Partnerships in the aggregate beneficially own approximately 1.1%, respectively,
of the outstanding shares of Common Stock, and (ii) assuming that the Limited
Partnerships exercise their warrants to purchase Common Stock, but that no other
holder of such warrants exercises their warrants, GS Capital and the Other
Limited Partnerships would beneficially own approximately 8.6% and 1.3%,
respectively, of the Common Stock.
8
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Goldman Sachs and GS Group in the aggregate beneficially own 8.1% of
the outstanding shares of Common Stock, and assuming that GS Group exercises its
options to purchase Common Stock and the Limited Partnerships exercise their
warrants to purchase Common Stock, but that no other holder of options or
warrants exercises its options or warrants, Goldman Sachs and GS Group would
beneficially own approximately 9.9% of the Common Stock.
None of the Filing Persons and, to the knowledge of each of the Filing
Persons, none of the Limited Partnerships that is not a Filing Person
beneficially owns any shares of Common Stock as of August 30, 1996 other than as
set forth herein.
(b) Each Filing Person shares the power to vote or direct the vote and
to dispose or direct the disposition of shares of Common Stock beneficially
owned by such Filing Person as indicated in the 2nd through 5th pages of this
filing.
(c) Except as disclosed in Item 3 and as set forth on Schedule IV, no
transactions in the Common Stock were effected by the Filing Persons, or, to the
knowledge of any of the Filing Persons, any of the Limited Partnerships that is
not a Filing Person or any of the persons listed on Schedules I, II-A or II-B
hereto, during the past sixty days. The transactions set forth on Schedule IV
were effected in the over-the-counter market.
(d) Except in accordance with the Escrow Agreement (described in Item
6), no other person is known by any Filing Person to have the right to receive
or the power to direct the receipt of dividends from, or the proceeds from the
sale of, any shares of Common Stock beneficially owned by any Filing Person.
(e) Not applicable.
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ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO SECURITIES OF THE ISSUER
Merger Agreement. Pursuant to the Merger Agreement, the outstanding
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Fresh Fields equity securities, including options and warrants, were converted
into shares of Common Stock and options and warrants to purchase shares of
Common Stock, as described in Item 3. The Merger Agreement further provides that
as of the Effective Date, the Company will indemnify, among others, former
directors of Fresh Fields (including representatives designated by the Limited
Partnerships) for a period of six years from the Effective Date to the full
extent permitted by applicable law against losses, claims and damages in
connection with any claim, action, suit, proceeding or investigation. In
addition, the Merger Agreement provides for the establishment of an escrow fund
of approximately 5% of the shares of Common Stock to be received by the Fresh
Fields shareholders in the Merger for approximately one year, in accordance with
the terms of the Escrow Agreement described below, to secure certain
indemnification obligations of Fresh Fields pursuant to the Merger Agreement. A
copy of the Merger Agreement is filed as Exhibit (1).
Registration Rights Agreement. Pursuant to the Merger Agreement, the
-----------------------------
Company entered into a Registration Rights Agreement for the benefit of all
former Fresh Fields shareholders (the "Registration Rights Agreement") with,
among others, GS Group and the Limited Partnerships. Under the Registration
Rights Agreement, parties to the agreement who hold at least 800,000 shares of
Common Stock received in connection with the Merger have the right to require
the Company, commencing 90 days after the Effective Date, at the Company's
expense, to file a registration statement with the Securities and Exchange
Commission under the Securities Act covering all or part of their shares of
Common Stock in order to permit such persons to resell their respective shares.
In addition, any one or more of the parties to the agreement (without regard to
the number of shares held) have the right, commencing August 30, 1997, to make a
demand for a shelf registration statement pursuant to Rule 415 under the
Securities Act at the expense of such shareholders. The Company's obligation
under the Registration Rights Agreement is limited to three demand
registrations. Except as described above, the Company bears all of the expenses
of the demand registrations (other than underwriting discounts and selling
commissions). Under the
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Registration Rights Agreement, each of the parties and other shareholders,
warrant holders and certain option holders also have "piggyback" registration
rights, subject to customary limitations. A copy of the Registration Rights
Agreement is filed as Exhibit (2).
Escrow Agreement. Fresh Fields has, pursuant to the Merger Agreement,
----------------
agreed to indemnify the Company from all damages and losses incurred by the
Company because of (i) the breach of any written representation, warranty,
agreement or covenant of Fresh Fields contained in the Merger Agreement or (ii)
certain litigation against Fresh Fields, together with all reasonable costs and
expenses (including, without limitation, attorneys' fees, interest and
penalties) incurred by the Company in connection with any action, suit,
proceeding, demand, assessment or judgment incident to any of the matters for
which the Company is indemnified against in the Merger Agreement. To secure
these indemnification obligations, the Merger Agreement provides for the
establishment of an escrow fund of approximately 5% of the shares of Common
Stock to be received by the Fresh Fields shareholders in the Merger for
approximately one year, pursuant to the Escrow Agreement, dated August 30, 1996,
among the parties thereto (the "Escrow Agreement"). Accordingly, a portion of
the shares of Common Stock beneficially owned by the Limited Partnerships were
deposited into the escrow fund created under the Escrow Agreement. GS Capital is
serving as the representative of the Fresh Fields shareholders in connection
with the Escrow Agreement.
Pursuant to the Escrow Agreement, certain stock dividends on the
shares held in escrow will be held in escrow, and cash dividends on the shares
held in escrow will be distributed by the escrow agent to the former holders of
Fresh Fields securities.
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The Company's sole recourse with respect to the satisfaction of any
indemnification obligation of Fresh Fields is limited to making claims against
the Common Stock that has been escrowed pursuant to the Merger Agreement and the
Escrow Agreement. No shareholder of Fresh Fields, nor GS Capital in its capacity
as Shareholders Representative, has any personal liability in connection with
such indemnification obligation.
Lock Up Agreement. In connection with the Merger, each of the Limited
-----------------
Partnerships has agreed not sell, transfer or otherwise dispose of any shares of
Common Stock issued pursuant to the Merger or any shares of Common Stock that
are acquired after the date of the Merger pursuant to the exercise of other
securities of the Company issued pursuant to the Merger until financial results
covering at least 30 days of combined operations of the Company and Fresh Fields
have been published; and, thereafter, any such sale, transfer or other
disposition must be in accordance with the applicable provisions of the
Securities Act and the rules and regulations thereunder.
Except as described herein, none of the Filing Persons or, to the knowledge
of each of the Filing Persons, any of the persons listed on Schedules I, II-A,
or II-B hereto is a party to any contract, arrangement, understanding or
relationship with respect to any securities of the Company.
The descriptions of the Merger Agreement, the Registration Rights
Agreement, the Other Agreement, the Escrow Agreement and the Lock Up Agreement
set forth in this Schedule 13D are qualified in their entirety by reference to
the Merger Agreement, the Registration Rights Agreement, the Other Agreement,
the Escrow Agreement and
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the Lock Up Agreement, copies of which are filed as Exhibits (1), (2), (3), (4)
and (5) hereto, respectively, and are incorporated by reference herein.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS
(1) Merger Agreement (incorporated herein by reference to Appendix A to the
Company's Form S-4 dated July 5, 1996, File No. 333-07719).
(2) Registration Rights Agreement (incorporated herein by reference to Exhibit
2.4 to the Company's Form S-4 dated July 5, 1996, File No. 333-07719).
(3) Agreement (incorporated herein by reference to Exhibit 2.3 to the Company's
Form S-4 dated July 5, 1996, File No. 333-07719).
(4) Escrow Agreement.
(5) Lock Up Agreement.
(6) Joint Filing Agreement.
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SIGNATURE
---------
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth is true, complete and correct.
Dated: September 9, 1996
GOLDMAN, SACHS & CO.
By:/s/ Richard A. Friedman
----------------------------------------
Name: Richard A. Friedman
Title: General Partner
THE GOLDMAN SACHS GROUP, L.P.
By: /s/ Richard A. Friedman
-----------------------------------------
Name: Richard A. Friedman
Title: General Partner
GS ADVISORS, L.P.
By: GS Advisors, Inc., its general partner
By: /s/ Richard A. Friedman
----------------------------------------
Name: Richard A. Friedman
Title: President
GS CAPITAL PARTNERS, L.P.
By: GS Advisors, L.P., its general partner
By: GS Advisors, Inc., its general partner
By: /s/ Richard A. Friedman
-----------------------------------------
Name: Richard A. Friedman
Title: President
<PAGE>
SCHEDULE I
----------
The following table sets forth the name of each of the general partners of
Goldman, Sachs & Co. (other than The Goldman Sachs Group, L.P.) and of The
Goldman Sachs Group, L.P. Unless otherwise indicated, the business address
of each person listed below is 85 Broad Street, New York, NY 10004, and,
unless otherwise indicated, each natural person listed below is a citizen
of the United States of America. Nobuyoshi John Ehara Inc., Jun Makihara
Inc., Masanori Mochida Inc., Hideo Ishihara, Inc., Oki Matsumoto, Inc. and
John P. Curtin, Jr. L.L.C., the only corporate general partners of Goldman,
Sachs & Co. and The Goldman Sachs Group, L.P., were each incorporated in
the State of Delaware. The principal occupation of each natural person
listed below and the principal business of each of Nobuyoshi John Ehara
Inc., Jun Makihara Inc., Masanori Mochida Inc., Hideo Ishihara, Inc., Oki
Matsumoto, Inc. and John P. Curtin, Jr. L.L.C. is as a general partner of
Goldman, Sachs & Co.
Name and Citizenship Business Address
- --------------------- ----------------
The persons listed below who have an asterisk marked next to their name are
members of the Executive Committee of The Goldman Sachs Group, L.P.
Jon Z. Corzine*
Henry M. Paulson, Jr.*
Roy J. Zuckerberg*
David M. Silfen*
Richard M. Hayden 133 Fleet Street
London EC4A 2BB, England
Robert J. Hurst*
Howard C. Katz
Peter K. Barker 333 South Grand Avenue
Los Angeles, CA 90071
Eric S. Dobkin
Willard J. Overlock, Jr.
Jonathan L. Cohen
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Name and Citizenship Business Address
- --------------------- ----------------
Fredric B. Garonzik
Kevin W. Kennedy
William C. Landreth 4900 Sears Tower
Chicago, IL 60606
Daniel M. Neidich
Edward Spiegel
Robert F. Cummings, Jr.
Angelo DeCaro
Steven G. Einhorn
David B. Ford
David M. Leuschen
Michael R. Lynch
Michael D. McCarthy
Donald C. Opatrny, Jr.
Thomas E. Tuft
Michael P. Mortara
Lloyd C. Blankfein
John P. Curtin, Jr. 150 King Street West
Toronto M5H 1J9, Canada
Gavyn Davies 133 Fleet Street
United Kingdom London EC4A 2BB, England
Dexter D. Earle
Nobuyoshi John Ehara 12-32, Akasaka 1-chome
Japan Minato-ku, Tokyo 107, Japan
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Name and Citizenship Business Address
- --------------------- ----------------
Nobuyoshi John Ehara Inc.
J. Christopher Flowers
Gary Gensler
Charles T. Harris III
Thomas J. Healey
Stephen Hendel
Robert E. Higgins
Robert J. Katz
Ernest S. Liu
Eff W. Martin 555 California Street
San Francisco, CA 94104
Charles B. Mayer, Jr.
Michael J. O'Brien 133 Fleet Street
United Kingdom London EC4A 2BB, England
Mark Schwartz
Stephen M. Semlitz
Robert K. Steel
John A. Thain* 133 Fleet Street
London EC4A 2BB, England
John L. Thornton 133 Fleet Street
London EC4A 2BB, England
Bracebridge H. Young, Jr. 133 Fleet Street
London EC4A 2BB, England
Joseph R. Zimmel
<PAGE>
Name and Citizenship Business Address
- --------------------- ----------------
Barry L. Zubrow
Gary L. Zwerling
Jonathan R. Aisbitt 133 Fleet Street
United Kingdom London EC4A 2BB, England
Andrew M. Alper
William J. Buckley
Frank L. Coulson, Jr.
Connie Kadrovach Duckworth 4900 Sears Tower
Chicago, IL 60606
Richard A. Friedman
Alan R. Gillespie 133 Fleet Street
United Kingdom London EC4A 2BB, England
Joseph H. Gleberman
Jacob D. Goldfield
Steven M. Heller
Ann F. Kaplan
Robert S. Kaplan
Peter D. Kiernan III
John P. McNulty
T. Willem Mesdag Messe Turm 60308
Frankfurt am Main, Germany
Gaetano J. Muzio 555 California Street
San Francisco, CA 94104
Robin Illgen Neustein
<PAGE>
Name and Citizenship Business Address
- --------------------- ----------------
Timothy J. O'Neill
Scott M. Pinkus
John J. Powers
Stephen D. Quinn
Arthur J. Reimers 133 Fleet Street
London EC4A 2BB, England
James P. Riley, Jr.
Richard A. Sapp 133 Fleet Street
London EC4A 2BB, England
Donald F. Textor
Thomas B. Walker III
Patrick J. Ward 133 Fleet Street
London EC4A 2BB, England
Jeffrey M. Weingarten 133 Fleet Street
London EC4A 2BB, England
Jon Winkelried
Richard Witten
Carlos A. Cordeiro 133 Fleet Street
London EC4A 2BB, England
John O. Downing
W. Mark Evans 3 Garden Road
Canada Hong Kong
Michael D. Fascitelli
Sylvain M. Hefes 2 Rue de Thann
France Paris, France 75017
Reuben Jeffery III 133 Fleet Street
<PAGE>
Name and Citizenship Business Address
- --------------------- ----------------
London EC4A 2BB, England
Lawrence H. Linden
Jun Makihara 12-32, Akasaka 1-chome
Japan Minato-ku, Tokyo 107, Japan
Jun Makihara Inc.
Masanori Mochida 12-32, Akasaka 1-chome
Japan Minato-ku, Tokyo 107, Japan
Masanori Mochida Inc.
Robert B. Morris III 133 Fleet Street
London EC4A 2BB, England
Philip D. Murphy Messe Turm, D-6000
Frankfurt am Main 1, Germany
Suzanne M. Nora Johnson 333 South Grand Avenue
Los Angeles, CA 90071
Terence M. O'Toole
Gregory K. Palm 133 Fleet Street
London EC4A 2BB, England
Carl G.E. Palmstierna 133 Fleet Street
Sweden London EC4A 2BB, England
Michael G. Rantz 133 Fleet Street
London EC4A 2BB, England
J. David Rogers
Joseph Sassoon 133 Fleet Street
Israel London EC4A 2BB, England
Peter Savitz 133 Fleet Street
London EC4A 2BB, England
Charles B. Seelig Jr.
Ralph F. Severson 555 California Street
<PAGE>
Name and Citizenship Business Address
- --------------------- ----------------
San Francisco, CA 94104
Gene T. Sykes 333 South Grand Avenue
Los Angeles, CA 90071
Gary A. Syman 12-32, Akasaka 1-chome
Minato-ku, Tokyo 107, Japan
Leslie C. Tortora
John L. Townsend
Lee G. Vance 133 Fleet Street
London EC4A 2BB, England
David A. Viniar
John S. Weinberg
Peter A. Weinberg
Laurence M. Weiss
George W. Wellde Jr. 12-32, Akasaka 1-Chome
Minato-Ku, Tokyo 107, Japan
Jaime E. Yordan
Sharmin Mossauar-Rahmani
United Kingdom
Hideo Ishihara 12-32, Akasaka 1-chome
Japan Minato-ku, Tokyo 107, Japan
Hideo Ishihara Inc.
Paul M. Achleitner Messe Turm 60308
Austria Frankfurt am Main, Germany
Armen A. Avanessians
Joel S. Beckman
David W. Blood 133 Fleet Street
London EC4A 2BB, England
Zachariah Cobrinik 12-32, Akasaka 1-Chome
<PAGE>
Name and Citizenship Business Address
- --------------------- ----------------
Minato-Ku, Tokyo 107, Japan
Gary D. Cohn 133 Fleet Street
London EC4A 2BB, England
Christopher A. Cole
Henry Cornell 3 Garden Road
Hong Kong
Robert V. Delaney
Joseph Della Rosa
J. Michael Evans 133 Fleet Street
Canada London EC4A 2BB, England
Lawton W. Fitt
Joseph D. Gatto
Peter C. Gerhard
Nomi P. Ghez
Israel
David T. Hamamoto
Walter H. Haydock Munsterhof 4
8022 Zurich, Switzerland
David L. Henle
Francis J. Ingrassia
Scott B. Kapnick 133 Fleet Street
London EC4A 2BB, England
Kevin M. Kelly
John C. Kleinert
Jonathan L. Kolatch
Peter S. Kraus
<PAGE>
Name and Citizenship Business Address
- --------------------- ----------------
Robert Litterman
Jonathan M. Lopatin
Thomas J. Macirowski
Peter G.C. Mallinson 3 Garden Road
United Kingdom Hong Kong
Oki Matsumoto 12-32 Akasaka 1-chome
Japan Minato-ku, Tokyo 107, Japan
Oki Matsumoto, Inc.
E. Scott Mead 133 Fleet Street
London EC4A 2BB, England
Eric M. Mindich
Steven T. Mnuchin
Thomas K. Montag
Edward A. Mule
Kipp M. Nelson 133 Fleet Street
London EC4A 2BB, England
Christopher K. Norton
Robert J. O'Shea
Wiet H. Pot 133 Fleet Street
Netherlands London EC4A 2BB, England
Jack L. Salzman
Eric S. Schwartz
Michael F. Schwerin
Richard S. Sharp 133 Fleet Street
United Kingdom London EC4A 2BB, England
Richard G. Sherlund
Michael S. Sherwood 133 Fleet Street
<PAGE>
Name and Citizenship Business Address
- --------------------- ----------------
United Kingdom London EC4A 2BB, England
Cody J. Smith
Daniel W. Stanton
Esta E. Stecher
Fredric E. Steck
Byron D. Trott 4900 Sears Tower
Chicago 60606
Barry S. Volpert
Peter S. Wheeler 3 Garden Road
United Kingdom Hong Kong
Anthony G. Williams 133 Fleet Street
United Kingdom London EC4A 2BB, England
Gary W. Williams
Tracy R. Wolstencroft 100 Crescent Court, Suite 1000
Dallas, Texas 75201
Danny O. Yee 3 Garden Road
Hong Kong
Michael J. Zamkow
Mark A. Zurack
John P. Curtin, Jr., L.L.C.
Terence James O'Neill
Peter D. Sutherland 133 Fleet Street
Irish London EC4A 2BB, England
<PAGE>
SCHEDULE II - A
---------------
The name, business address, present principal occupation or employment and
citizenship of each controlling person, if any, director and executive officer
of each general partner of Goldman Sachs & Co. or The Goldman Sachs Group that
is a corporation are set forth below.
I. NOBUYOSHI JOHN EHARA INC.
Nobuyoshi John Ehara Inc. is controlled by Nobuyoshi John Ehara, its
President and one of its directors. The business address of each person listed
below other than Nobuyoshi John Ehara is 85 Broad Street, New York, New York
10004, and each such person is a citizen of the United States of America. The
business address of Nobuyoshi John Ehara, a citizen of Japan, is the Ark Mori
Building, 12-32, Akasaka 1-chome, Minato-Ku, Tokyo 107, Japan.
<TABLE>
<CAPTION>
Name and Business Address Position Present Principal Occupation
- ---------------------------- ---------------------- ----------------------------
<S> <C> <C>
Robert J. Katz Director and General Partner of Goldman,
Chairman of the Board Sachs & Co.
Nobuyoshi John Ehara President and Director General Partner of Goldman,
Sachs & Co.
David A. Viniar Director General Partner of Goldman,
Sachs & Co.
Esta E. Stecher Vice Chairman of the General Partner of Goldman,
Board and Treasurer Sachs & Co.
James B. McHugh Secretary Vice President of Goldman,
Sachs & Co.
</TABLE>
II. MASANORI MOCHIDA INC.
Masanori Mochida Inc. is controlled by Masanori Mochida, its President and
one of its directors. The business address of each person listed below other
than Masanori Mochida is 85 Broad Street, New York, New York 10004, and each
such person is a citizen of the United States of America. The business address
of Masanori Mochida, a citizen of Japan, is 12-32, Akasaka 1-chome, Minato-ku,
Tokyo 107, Japan.
<TABLE>
<CAPTION>
Name and Business Address Position Present Principal Occupation
- --------------------------- ---------------------- ----------------------------
<S> <C> <C>
Robert J. Katz Director and General Partner of Goldman,
Chairman of the Board Sachs & Co.
Masanori Mochida President and Director General Partner of Goldman,
Sachs & Co.
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C>
David A. Viniar Director General Partner of Goldman,
Sachs & Co.
Esta E. Stecher Vice Chairman of the General Partner of Goldman,
Board and Treasurer Sachs & Co.
James B. McHugh Secretary Vice President of Goldman,
Sachs & Co.
</TABLE>
III. JUN MAKIHARA INC.
Jun Makihara Inc. is controlled by Jun Makihara, its President and one
of its directors. The business address of each person listed below other than
Jun Makihara is 85 Broad Street, New York, New York 10004, and each such person
is a citizen of the United States of America. The business address of Jun
Makihara, a citizen of Japan, is 12-32, Akasaka 1-chome, Minato-ku, Tokyo 107,
Japan.
<TABLE>
<CAPTION>
Name and Business Address Position Present Principal Occupation
- --------------------------- ---------------------- ----------------------------
<S> <C> <C>
Robert J. Katz Director and General Partner of Goldman,
Chairman of the Board Sachs & Co.
Jun Makihara President and Director General Partner of Goldman,
Sachs & Co.
David A. Viniar Director General Partner of Goldman,
Sachs & Co.
Esta E. Stecher Vice Chairman of the General Partner of Goldman,
Board and Treasurer Sachs & Co.
James B. McHugh Secretary Vice President of Goldman,
Sachs & Co.
</TABLE>
IV. HIDEO ISHIHARA INC.
Hideo Ishihara Inc. is controlled by Hideo Ishihara, its President and one
of its directors. The business address of each person listed below other than
Hideo Ishihara is 85 Broad Street, New York, New York 10004, and each such
person is a citizen of the United States of America. The business address of
Hideo Ishihara, a citizen of Japan, is the Ark Mori Building, 12-32, Akasaka 1-
chome, Minato-Ku, Tokyo 107, Japan.
<TABLE>
<CAPTION>
Name and Business Address Position Present Principal Occupation
- --------------------------- --------------------- ----------------------------
<S> <C> <C>
Robert J. Katz Director and General Partner of Goldman,
Chairman of the Board Sachs & Co.
Hideo Ishihara President and Director General Partner of Goldman,
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C>
Sachs & Co.
Esta E. Stecher Director, Vice Chairman General Partner of Goldman,
of the Board and Treasurer Sachs & Co.
James B. McHugh Secretary Vice President of Goldman,
Sachs & Co.
</TABLE>
V. OKI MATSUMOTO INC.
Oki Matsumoto Inc. is controlled by Oki Matsumoto, its President and
one of its directors. The business address of each person listed below other
than Oki Matsumoto is 85 Broad Street, New York, New York 10004, and each such
person is a citizen of the United States of America. The busines address of Oki
Matsumoto, a citizen of Japan, is the Ark Mori Building, 12-32, Akasaka 1-chome,
Minato-Ku, Tokyo 107, Japan.
<TABLE>
<CAPTION>
Name and Business Address Position Present Principal Occupation
- --------------------------- ------------------------------ ----------------------------
<S> <C> <C>
Robert J. Katz Director, Chairman of the General Partner of Goldman,
Board and Vice President Sachs & Co.
Oki Matsumoto President and Director General Partner of Goldman,
Sachs & Co.
Esta E. Stecher Director, Vice Chairman of the General Partner of Goldman,
Board, Vice President and Sachs & Co.
Treasurer
James B. McHugh Secretary Vice President of Goldman,
Sachs & Co.
</TABLE>
VI. JOHN P. CURTIN, JR. L.L.C
John P. Curtin, Jr. L.L.C. is controlled by John Curtin, Jr., its
ultimate beneficial owner. The business address of each person listed below is
85 Broad Street, New York, NY 10004, and each such person is a citizen of the
United States of America. The business address of John Curtin, Jr., a citizen
of the United States of America, is 150 King Street West, Toronto M5H 1J9,
Canada.
<TABLE>
<CAPTION>
Name and Business Address Position Present Principal Occupation
- --------------------------- ------------------------------ ----------------------------
<S> <C> <C>
Fredric B. Garonzik Managing Director General Partner of Goldman,
Sachs & Co.
Charles B. Mayer, Jr. Managing Director General Partner of Goldman,
Sachs & Co.
Esta E. Stecher Assistant Treasurer General Partner of Goldman,
</TABLE>
<PAGE>
Sachs & Co.
James B. McHugh Secretary Vice President of Goldman,
Sachs & Co.
<PAGE>
SCHEDULE II-B
-------------
The name, business address, present principal occupation of each director
and executive officer of GS Advisors, Inc., the sole general partner of GS
Advisors, L.P., which is the sole general partner of GS Capital Partners,L.P.,
are set forth below.
The business address for all the executive officers and directors listed
below except Henry Cornell is 85 Broad Street, New York, New York 10004. The
business address of Henry Cornell is 3 Garden Road, Hong Kong.
All executive officers and directors listed below are United States
citizens.
<TABLE>
<CAPTION>
Name and Business Address Position Present Principal Occupation
- --------------------------- ------------------------ ----------------------------
<S> <C> <C>
Richard A. Friedman Director/President General Partner of Goldman,
Sachs & Co.
Terence M. O'Toole Director/Vice President General Partner of Goldman,
Sachs & Co.
Carla H. Skodinski Vice President/Secretary Vice President of Goldman,
Sachs & Co.
Elizabeth S. Cogan Treasurer Vice President of Goldman,
Sachs & Co.
Joseph H. Gleberman Director/Vice President General Partner of Goldman,
Sachs & Co.
Henry Cornell Vice President General Partner of Goldman,
Sachs & Co.
Barry S. Volpert Director/Vice President General Partner of Goldman,
Sachs & Co.
Eve M. Gerriets Vice President/Assistant Vice President of Goldman,
Secretary Sachs & Co.
David J. Greenwald Assistant Secretary Vice President of Goldman,
Sachs & Co.
</TABLE>
<PAGE>
SCHEDULE III
------------
In settlement of SEC Administrative Proceeding File No. 3-7646 In the
Matter of the Distribution of Securities Issued by Certain Government Sponsored
Enterprises, Goldman, Sachs & Co., (the "Firm") without admitting or denying the
findings consented to the entry of an Order dated January 16, 1992 along with
numerous other securities firms. The SEC found that the Firm in connection with
its participation in the primary distributions of certain unsecured debt
securities issued by Government Sponsored Enterprises ("GSEs") made and kept
certain records that did not accurately reflect the Firm's customers' orders for
GSEs' securities and/or offers, purchases or sales by the Firm of the GSEs'
securities effected by the Firm in violation of Section 17(a) of the Exchange
Act and 17 C.F.R. (S)(S) 240.17a-3 and 240.17a-4.
The Firm was ordered to cease and desist from committing or causing future
violations of the aforementioned sections of the Exchange Act in connection with
any primary distributions of unsecured debt securities issued by the GSEs, pay a
civil money penalty to the United States Treasury in the amount of $100,000 and
maintain policies and procedures reasonably designed to ensure the Firm's future
compliance with the aforementioned sections of the Exchange Act in connection
with any primary distributions of unsecured debt securities issued by the GSEs.
In SEC Administrative Proceeding File No.3-8282 In the Matter of Goldman,
Sachs & Co., the Firm without admitting or denying the allegations settled
administrative proceedings involving alleged books and records and supervisory
violations relating to eleven trades in the secondary markets for U.S. Treasury
securities in 1985 and 1986. The SEC alleged that the Firm had failed to
maintain certain records required pursuant to Section 17(a) of the Exchange Act
and had also failed to supervise activities relating to the aforementioned
trades in violation of Section 15(b)(4)(E) of the Exchange Act.
The Firm was ordered to cease and desist from committing or causing any
violation of the aforementioned sections of the Exchange Act, pay a civil money
penalty to the SEC in the amount of $250,000 and establish policies and
procedures reasonably designed to assure compliance with Section 17(a) of the
Exchange Act and Rules 17a-3 and 17a-4 thereunder.
<PAGE>
Schedule IV
<TABLE>
<CAPTION>
Cusip Security Ref. Number Purchases Sales Price Trade Date Settl Date
- ----- -------- ----------- --------- ----- ----- ---------- ----------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
966837-10-6 WHOLE FOODS MARKET INC 0822-100552-12 1000s 34 1/2 22-Aug-96 27-Aug-96
966837-10-6 WHOLE FOODS MARKET INC 0822-100558-12 2000s 34 22-Aug-96 27-Aug-96
966837-10-6 WHOLE FOODS MARKET INC 0822-100559-12 5000s 32 3/4 22-Aug-96 27-Aug-96
966837-10-6 WHOLE FOODS MARKET INC 0822-100560-12 2000s 33 22-Aug-96 27-Aug-96
966837-10-6 WHOLE FOODS MARKET INC 0822-100561-12 2000s 33 9/16 22-Aug-96 27-Aug-96
966837-10-6 WHOLE FOODS MARKET INC 0823-100736-12 1136s 34 3/8 23-Aug-96 28-Aug-96
966837-10-6 WHOLE FOODS MARKET INC 0823-100737-12 1364s 34 1/4 23-Aug-96 28-Aug-96
</TABLE>
<PAGE>
EXHIBIT INDEX
EXHIBIT NO. EXHIBIT
(1) Merger Agreement (incorporated herein by reference to Appendix A to
the Company's Form S-4 dated July 5, 1996, File No. 333-07719).
(2) Registration Rights Agreement (incorporated herein by reference to
Exhibit 2.4 to the Company's Form S-4 dated July 5, 1996, File No.
333-07719).
(3) Agreement (incorporated herein by reference to Exhibit 2.3 to the
Company's Form S-4 dated July 5, 1996, File No. 333-07719).
(4) Escrow Agreement.
(5) Lock Up Agreement.
(6) Joint Filing Agreement.
<PAGE>
EXHIBIT 4
ESCROW AGREEMENT
THIS ESCROW AGREEMENT, dated as of August 30, 1996 ("Agreement"), is by
and among Whole Foods Market, Inc., a Texas corporation ("WFM"); GS Capital
Partners, L.P. (the "Shareholders' Representative"), in its capacity as
attorney-in-fact for the former shareholders (collectively the "FF
Shareholders") of Fresh Fields Markets, Inc., a Delaware corporation ("FF"); and
Texas Commerce Bank National Association ("Escrow Agent").
W I T N E S S E T H:
WHEREAS, WFM and FF are parties to that certain Agreement and Plan of
Merger, as amended, dated as of June 17, 1996 (the "Merger Agreement"), pursuant
to which FF has become a wholly-owned subsidiary of WFM (capitalized terms not
otherwise defined herein having the respective meanings set forth in the Merger
Agreement); and
WHEREAS, WFM agreed in the Merger Agreement to deposit 240,179 shares of
WFM Common Stock (the "Escrow Shares") in an escrow account to be used to
satisfy certain indemnities provided in Section 8.3 of the Merger Agreement; and
In consideration of the mutual covenants and agreements contained herein
and certain other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto covenant and agree as
follows:
1. Appointment of Escrow Agent and Deposit of Escrow Shares. WFM and
--------------------------------------------------------
the Shareholders' Representative hereby appoint and designate the Escrow Agent
as the Escrow Agent hereunder, and the Escrow Agent hereby accepts such
appointment and agrees to serve hereunder for the purposes and on the terms set
forth herein. WFM hereby deposits the Escrow Shares with the Escrow Agent. The
Escrow Agent shall receive, hold and deliver the Escrow Shares as provided for
herein.
2. Duties of Shareholders' Representative.
--------------------------------------
(a) Pursuant to the terms of the Merger Agreement, the
Shareholders' Representative, as attorney-in-fact and agent for the FF
Shareholders, shall give and receive notices and communications, authorize
delivery to WFM of the Escrow Shares or other property held by the Escrow Agent
pursuant to this Agreement in satisfaction of claims by WFM, object to such
deliveries, agree to, negotiate, enter into settlements and compromises of, and
demand arbitration and comply with orders of courts and awards of arbitrators
with respect to such claims, and take all actions necessary or appropriate in
the judgment of the Shareholders' Representative for the
<PAGE>
accomplishment of the foregoing. Such agency may be changed by the holders of a
majority in interest of the Escrow Shares from time to time upon not less than
ten (10) days' prior written notice to WFM. No bond shall be required of the
Shareholders' Representative, and the Shareholders' Representative shall receive
no compensation for its services. Notices or communications to or from the
Shareholders' Representative shall constitute notice to or from each of the FF
Shareholders.
(b) Notwithstanding anything to the contrary herein, the Shareholders'
Representative shall not be liable and the FF Shareholders shall indemnify and
hold harmless the Shareholders' Representative for any act done or omitted
hereunder as Shareholders' Representative while acting in good faith and in the
exercise of reasonable judgment, and any act done or omitted pursuant to the
advice of counsel shall be conclusive evidence of such good faith and reasonable
judgment. In no case shall the Shareholders' Representative be personally
liable for any error in judgment or any acts or steps taken or permitted to be
taken in good faith, or for any mistake of law or fact, or for anything it may
do or refrain from doing in connection herewith, except for its own willful
misconduct or gross negligence.
(c) The Shareholders' Representative shall have reasonable access to
information about FF and WFM and the reasonable assistance of FF's and WFM's
officers and employees for purposes of performing its duties and exercising its
rights hereunder, provided that the Shareholders' Representative shall treat
confidentially and not disclose any nonpublic information from or about FF or
WFM to anyone (except on a need to know basis to individuals who agree to treat
such information confidentially).
(d) A decision, act, consent or instruction of the Shareholders'
Representative shall constitute a decision of all FF Shareholders for whom
Escrow Shares otherwise issuable to them are deposited with the Escrow Agent and
Shall be final, binding and conclusive as to the Escrow Shares beneficially
owned by each such FF Shareholder, and the Escrow Agent and WFM may rely upon
any decision, act, consent or instruction of the Shareholders' Representative as
being the decision, act, consent or instruction of each and every such FF
Shareholder. The Escrow Agent and WFM are hereby relieved from any liability to
the FF Shareholders for any acts done by them in accordance with such decision,
act, consent or instruction of the Shareholders' Representative.
(e) The Shareholders' Representative shall receive no compensation for
its services. Notwithstanding the above, any fees and expenses (including
without limitation fees of counsel) incurred by the Shareholders' Representative
in connection with actions taken pursuant to the terms of this Agreement will be
paid by payments of the proceeds of the sale of Escrow Shares disbursed by the
Escrow Agent upon receipt from the Shareholders' Representative of an
accounting, in reasonable detail,
2
<PAGE>
of such expenses. The Shareholders' Representative shall be indemnified fully
by the FF Shareholders and, in the first Instances, severally by FF Shareholders
to the extent of their pro rata interests in the Escrow Shares against any
claims, charges or liabilities of any kind arising from their actions taken or
omitted to be taken in good faith in connection with this Agreement. The Escrow
Agent shall disburse to the Shareholders' Representative Escrow Shares (or the
proceeds from the sale of Escrow Shares as the Escrow Agent shall determine in
its discretion) as an advance to cover expenses incurred by the Shareholders'
Representative upon request by the Shareholders' Representative therefor and
pursuant to the indemnification provisions herein. With respect to any such
sold Escrow Shares, the Escrow Agent will provide each FF Shareholder for whose
account the Escrow Shares were sold with sufficient information to enable such
FF Shareholder to determine and report the tax consequences of the sale.
3. Establishment of Escrow.
-----------------------
3.1 Deposit of Escrow Shares
------------------------
(a) Pursuant to the Merger Agreement, WFM, Merger
Corp, and FF have agreed that WFM will transfer to the Escrow Agent the Escrow
Shares. The Escrow Shares required to be deposited with the Escrow Agent
pursuant to this Agreement and the FF Shareholders' percentage interests therein
are set forth in Exhibit A attached hereto.
---------
(b) Except as provided in Sections 2(e) and 7 of
this Agreement, the Escrow Shares shall be held and used only for the purposes
of funding the indemnity obligations set forth in Section 8.3 of the Merger
Agreement.
3.2 Receipt. The Escrow Agent hereby acknowledges receipt
-------
of a fully executed copy of the Merger Agreement and the Escrow Shares and
agrees to hold and disburse the Escrow Shares in accordance with the terms and
conditions of this Agreement for the uses and purposes stated herein.
3.3 Voting Rights of Escrow Shares. As long as such shares
------------------------------
remain subject to this Agreement, all voting rights with respect to the Escrow
Shares shall be exercised by the FF Shareholders in accordance with their
proportionate interests therein, and the Escrow Agent shall from time to time
execute and deliver to the FF Shareholders such proxies, consents or other
documents as may be necessary to enable the respective FF Shareholders to
exercise such rights.
3.4 Dividends. Pending the disbursement of the Escrow
---------
Shares pursuant to this Agreement, the Escrow Agent shall hold the certificates
representing the Escrow Shares. Except for tax-free dividends paid in stock
declared with respect to the Escrow Shares pursuant to Section 305(a) of the
Internal Revenue Code of
3
<PAGE>
1986, as amended, any cash dividends, dividends payable in securities or other
distributions of any kind made in respect of the Escrow Shares will be
distributed currently by the Escrow Agent to the FF Shareholders in accordance
with their proportionate interests in the Escrow Shares.
4. Liabilities Covered. This Agreement has been executed and the
-------------------
deposit of the Escrow Shares hereunder has been made pursuant to Section 2.6 of
the Merger Agreement. Except as provided in Sections 2(e) and 7 of this
Agreement, the deposit of the Escrow Shares with the Escrow Agent has been made
soley for the purpose of funding, to the extent of the Escrow Shares, FF's
indemnification obligations under Section 8.3 of the Merger Agreement. This
funding obligation terminates on the later of the following: (i) one year from
the Effective Date, or (ii) with respect to any specific representation or
warranty in the Merger Agreement under which WFM shall have made a claim for
indemnification thereunder prior to the first anniversary of the Effective Date
and shall have provided notice of such claim to the Escrow Agent as provided in
Section 6 hereof and if such claim has not been completely and finally resolved
prior to the first anniversary of the Effective Date, the period of time beyond
the first anniversary of the Effective Date sufficient to completely and finally
resolve the claim relating to such representation or warranty.
5. Disbursement of the Deposit. The Escrow Agent shall disburse
---------------------------
the Escrow Shares as follows:
(a) Subject to the provisions of Sections 4,7 and 9 hereof,
upon the expiration of twelve (12) months from the date hereof, the Escrow Agent
shall disburse to the FF Shareholders all of the Escrow Shares minus such number
-----
of Escrow Shares equal to the sum of (A) any Escrow Shares distributed to WFM
pursuant to paragraph (b) below, (B) any amounts with respect to which the
Escrow Agent has received a written objection to disbursement from WFM or the
Shareholders Representative pursuant to paragraph (b) below and (C) any amount
as to which the Escrow Agent has received a written notice from the
Shareholders' Representative requesting payment for expenses incurred or the
maintenance by the Escrow Agent of a reserve for future expenses of the
Stockholders' Representative in such amount as reasonably estimated by it in
good faith. The Escrow Agent shall then distribute such disbursed shares to the
FF Shareholders in proportion to the FF Shareholders' percentage interests set
forth in Exhibit A hereto .
---------
(b) WFM or the Shareholders' Representative may deliver to
the Escrow Agent written notice (the "Notice") requesting that the Escrow Agent
pay all or a portion of such Escrow Shares to WFM to satisfy a claim pursuant to
Section 8.3 of the Merger Agreement. The Notice shall include an itemized
statement setting forth the calculation of the amount of the Escrow Shares
requested and a detailed statement of the basis of the alleged claim of loss
(it being understood that all conversions of dollars to WFM Merger Shares shall
be made at the Determination
4
<PAGE>
Price, regardless of the then fair market value of any shares of WFM Common
Stock), WFM or the Shareholders' Representative, as the case may be (the
"Requesting Party"), shall send a copy of such Notice to the other (the
"Receiving Party") simultaneously and by the same means of transmission which
the Requesting Party provided the Notice to the Escrow Agent. If the Escrow
Agent does not receive a written objection from the Receiving Party to the
Notice prior to the 30th day following its receipt of the Notice, then, after
confirming that the Receiving Party received the notice, the Escrow Agent shall
disburse to the Requesting Party from the Escrow Shares the amount provided in
the Notice. If the Escrow Agent receives a written objection from the Receiving
Party to the Notice prior to the 30th day, the provisions of Section 7 shall
apply. No notice may be delivered to the Receiving Party or the Escrow Agent
nor may any previously delivered notice be revised after the expiration of one
year from the Effective Date.
(c) In the event of any disbursement of Escrow Shares to the FF
Shareholders pursuant to subparagraph (a) above, no fractional Escrow Shares
shall be delivered, but instead the Escrow Agent shall deliver cash in lieu of a
fractional Escrow Share. Subject to compliance with any applicable federal or
state securities laws, the Escrow Agent shall be authorized to sell Escrow
Shares for the purpose of making such payments. In the event of any
disbursement of Escrow Shares to WFM pursuant to subparagraph (b) above, no
fractional shares shall be delivered, but rather the Escrow Agent shall adjust
the amount of Escrow Shares to be delivered to WFM by rounding to the nearest
whole share.
(d) Subject to the provisions of Sections 4,7 and 9 hereof, upon the
expiration of one year from the Effective Date, the Escrow Agent shall disburse
to the FF Shareholders' any and all remaining Escrow Shares.
6. Escrow Agent Duties. Without in any way limiting any other provision
-------------------
of this Agreement, it is expressly understood and agreed that the Escrow Agent
shall be under no duty or obligation to give any notice, or to do or to omit the
doing of any action with respect to the Escrow Shares, except to make
disbursements in accordance with the terms of this Agreement. The Escrow Agent
shall not be liable for any error in judgement or any act or steps taken or
permitted to be taken in good faith, or for any mistake of law or fact, or for
anything it may do or refrain from doing in connection herewith, except for its
own willful misconduct or gross negligence. The Escrow Agent shall not be
required in any way to determine the validity or sufficiency, whether in form or
substance, of any instrument, document, certificate, statement or notice
referred to in this Agreement or contemplated hereby, or the identity or
authority of the persons executing the same, and it shall be sufficient if any
writing purporting to be such instrument, document, certificate, statement or
notice is delivered to the Escrow Agent and purports to be correct in form and
signed or otherwise executed by the party or parties required to sign or
execute the same under this Agreement.
5
<PAGE>
7. Controversy. In the event that a Receiving Party challenges the nature,
-----------
amount and validity of a Notice, such controversy shall be resolved pursuant to
the procedures set forth on Schedule 1 hereto, and Escrow Agent shall disburse
the Escrow Shares as appropriate in connection with the resolution of such
controversy. Should any other controversy arise between or among WFM and the
Shareholders' Representative, or any other person, firm or entity, with respect
to this Agreement or the Escrow Shares, or the Escrow Agent should be in doubt
as to what action to take, the Escrow Agent shall have the right to (a) withhold
delivery of the Escrow Shares until the controversy is resolved, the conflicting
demands are withdrawn or the doubt is resolved, or (b) institute a bill of
interpleader in a court of applicable jurisdiction to determine the rights of
the parties hereto. Should a bill of interpleader be instituted, or should the
Escrow Agent be threatened with litigation or become involved in litigation in
any manner whatsoever on account of this Agreement or the Escrow Shares, then as
between themselves and the Escrow Agent, WFM and the FF Shareholders will each
pay to the Escrow Agent 50% of the reasonable attorneys' fees and any other
disbursements, expenses, losses and damages in connection with or which results
from the threatened or actual litigation. The FF Shareholders' 50% share of such
attorneys' fees, disbursements, expenses, losses and damages shall be paid
solely with Escrow Shares or proceeds from the sale of Escrow Shares. The Escrow
Agent shall deliver a written invoice of such fees to WFM and the Shareholders'
Representative. The FF Shareholders' liability for any such fees shall be in
proportion to their percentage interests set forth in Exhibit A hereto. The
---------
Escrow Agent shall have the option in its sole discretion to elect to be paid by
the FF Shareholders in cash or by the transfer of Escrow Shares. Subject to
compliance with applicable federal or state securities laws, the Escrow Agent
shall also have the right in its sole discretion to sell Escrow Shares for cash
so that it may receive such fees in cash .
8. Indemnity. WFM and the FF Shareholders (to the extent of the Escrow
---------
Shares), jointly and severally, agree to indemnify the Escrow Agent against and
hold the Escrow Agent harmless from any and all losses, costs, damages,
expenses, claims and attorney's fees suffered or incurred by the Escrow Agent as
a result of, in connection with or arising from or out of the acts or omissions
of the Escrow Agent in performance of or pursuant to this Agreement, except such
acts or omissions as may result from the Escrow Agent's willful misconduct or
gross negligence. WFM shall be responsible for the payment of the Escrow Agent's
customary fees and expenses charged in connection with the performance of its
duties hereunder.
9. Escrow Agent to Follow Instructions of WFM and the Shareholders'
----------------------------------------------------------------
Representative. Any provision herein to the contrary notwithstanding, the Escrow
- --------------
Agent shall, at any time and from time to time, take such action hereunder with
respect to the Escrow Shares as shall be agreed to in writing by WFM and the
Shareholders' Representative.
6
<PAGE>
10. Resignation. The Escrow Agent may resign upon ten (10) days' prior
written notice to WFM and the Shareholders' Representative, and, upon joint
instructions from WFM and the Shareholders' Representative, shall deliver the
Escrow Shares to any designated substitute Escrow Agent selected by WFM and the
Shareholders' Representative. If WFM and the Shareholders' Representative fail
to designate a substitute Escrow Agent within ten (10) days, the Escrow Agent
may, at its sole discretion and its sole option, institute a bill of
interpleader as contemplated by Section 7 hereof.
11. Termination. Upon delivery of the Escrow Shares as provided in
Section 5 or upon the institution of a bill of interpleader as provided in
Section 7 hereof, this Agreement shall terminate except for the provisions of
Section 8 and 20.
12. 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,
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
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
<PAGE>
(ii) If to Shareholders' Representative:
GS Capital Partners, L.P.
c/o Goldman, Sachs & Co.
85 Broad Street
19th Floor
New York, New York, 10004
Attention: Carla H. Skodinski
Facsimile: 212-357-5505
with a copy (which shall not constitute notice) to:
Fried, Frank, Harris, Shiver & Jacobson
1001 Pennsylvania Avenue, N.W., Suite 800
Washington, D.C. 20004-2505
Attention: Richard A. Steinwurtzel
Facsimile: 202-839-7003
(iii) if to Escrow Agent:
Texas Commerce Bank National Association
700 Lavaca
5th Floor
Austin, Texas 78701
Attention: Cary Gilliam
Facsimile: 512-479-2553
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.
13. Choice of Laws: Cumulative Rights. This Agreement shall be
---------------------------------
construed under the laws of the State of Delaware (irrespective of its choice of
law principles). Notwithstanding the foregoing, the Federal Rules of Evidence
and Federal Rules of Civil Procedure shall control controversies under this
Agreement that are subject to arbitration as set forth in Section 7 and Schedule
1 hereto. All of the
8
<PAGE>
Escrow Agent's rights hereunder are cumulative of any other rights it may have
by law or otherwise.
14. Severability. If one or more of the provisions contained herein
------------
shall for any reason be held to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not affect any
other provisions hereof, and this Agreement shall be construed as if such
invalidity, illegal or unenforceable provision had never been contained herein;
provided, however, that this severability provision shall not apply if one or
more of the provisions contained herein shall for any reason be held to be
invalid, illegal or unenforceable in any respect against the FF Shareholders in
a proceeding involving a dispute between the Shareholder Representative and the
FF Shareholders.
15. Captions. The captions in this Agreement are for convenience of
--------
reference only and shall not limit or otherwise affect any of the terms or
provisions hereof.
16. Counterparts. This Agreement may be executed in any number of
------------
counterparts, each of which when so executed and delivered shall be deemed an
original. This Agreement shall become binding when one or more counterparts
hereof, individually or taken together shall bear the signatures of all of the
parties reflected hereon as signatories.
17. Entire Agreement. This Agreement and any other documents executed
----------------
or delivered pursuant to the Agreement contain the complete agreement among the
parties with respect to the transactions contemplated hereby and supersede all
prior agreements and understandings, whether oral or written, among the parties
with respect to such transactions. To the extent that the provisions of Section
8.3 of the Merger Agreement may be inconsistent with the provisions of this
Agreement, Section 8.3 of the Merger Agreement will control.
18. Amendment. This Agreement may be amended only by a written
---------
instrument signed by the party against which enforcement of any waiver, change,
modification, extension or discharge is sought.
19. Benefit and Assignment. The rights and obligations of each party
----------------------
under this Agreement may not be assigned without the prior written consent of
all other parties. The Agreement shall be binding upon and insure to the benefit
of the parties hereto and their respective successors and assigns.
20. No Personal Liability of the Shareholders' Representative.
---------------------------------------------------------
Notwithstanding any provision to the contrary hereunder, the Shareholders'
Representative shall have no personal liability in connection with, or related
to, this
9
<PAGE>
Agreement (including Schedule 1 hereto) nor shall any controlling person of the
Shareholders' Representative.
21. Certain Waivers. In any proceedings by WFM or Merger Corp. to assert or
---------------
prosecute any claim against the Escrow Shares hereunder, the Shareholders'
Representative agrees that it shall not assert as a defense or bar to recovery
by the Surviving Corporation against the Escrow Shares and hereby waives any
right so to assert such defense or bar such recovery, that (a) before the date
of this Agreement FF (as opposed to WFM and Merger Corp.) had knowledge of the
circumstances giving rise to the claim being pursued by WFM or Merger Corp.; (b)
before the date of this Agreement FF engaged in conduct or took action that
caused or brought about the circumstances giving rise to its claim or otherwise
contributed thereto; (c) the Surviving Corporation is estopped from asserting or
recovering upon its claim by reason of having made the representations,
warranties, and covenants made by FF in the Merger Agreement; or (d) the former
stockholders of FF have a right of contribution from or indemnification by the
Surviving Corporation to the extent that there is any recovery pursuant to the
indemnification provisions of said Section 8.3. The Shareholders' Representative
in its capacity as such and not in its capacity as a FF Shareholder further
agrees that it shall not under any circumstances whatsoever affirmatively seek
any contribution from or indemnification by the Surviving Corporation for any
losses, damages, expenses or other claims, regardless of form, suffered by it
arising out of, related to or in connection with this Agreement, the Merger
Agreement or any other agreement contemplated hereby or any transaction
contemplated hereby or thereby, except to the extent such claim arises out of
the gross negligence or willful misconduct of the Surviving Corporation, or the
breach by the Surviving Corporation of it obligations under this Agreement or
the Merger Agreement.
10
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
WHOLE FOODS MARKET, INC.
By: /s/ Glenda Flanagan
----------------------------------
Glenda Flanagan
Vice President
Shareholders' Representative in its
capacity of attorney-in-fact for the FF
Shareholders:
GS Capital Partners L.P. By: "GS ADVISORS, INC.
GENERAL PARTNER,
GS ADVISORS, L.P.
GENERAL PARTNER"
By: /s/ C.H. Skodinski
----------------------------------
Its: C.H. Skodinski, V.P.
--------------------------
Texas Commerce Bank National Association
By: /s/ Cary Gilliam
----------------------------------
Cary Gilliam
Vice President
11
<PAGE>
Schedule I
Procedure for Resolving Disputes
1. Any dispute, disagreement or other question arising from this
Agreement or the interpretation thereof shall be settled by arbitration in
accordance with the commercial rules then in effect of the American Arbitration
Association, except as modified in this paragraph and, except that the
arbitrator(s) shall be selected in accordance with the following procedure: such
dispute, disagreement or other question shall be referred to and decided by a
single arbitrator if the parties can agree upon one within 15 days after the
Receiving Party challenges a Notice; otherwise, such dispute, disagreement or
other question shall be referred to and decided by three arbitrators, one to be
appointed by WFM and one to be appointed by the Shareholders' Representative,
each such appointment to be made within ten (10) days after the expiration of
the 15 day period referred to above, and the third arbitrator to be appointed by
the first two arbitrators within 10 days after the expiration of such 10 day
period. If the first two arbitrators cannot reach agreement on the third
arbitrator within said 10 day period, the third arbitrator shall be an impartial
arbitrator appointed by the President of the American Arbitration Association
within 20 days after the expiration of said ten (10) day period. Hearings of the
arbitrator shall be held in the City of Wilmington, Delaware, unless the parties
agree otherwise. The presentations of the parties in the arbitration proceeding
shall be commenced and completed within 60 days after selection of the
arbitration panel, and the arbitration panel shall render its decision in
writing within 30 days after completion of such presentations. Any decision
concurred in by any two of the arbitrators shall constitute the decision of the
arbitration panel, and unanimity shall not be required. The arbitration shall
be conducted in accordance with the Federal Rules of Evidence and the Federal
Rules of Civil Procedure. The arbitration award shall be in writing and shall
contain findings of fact and conclusions of law to support the award. Judgment
upon an award rendered by the arbitrator(s) may be entered in any court of
competent jurisdiction, including courts in the States of New York and Texas.
Any award so rendered shall be final and binding upon the parties hereto. All
costs and expenses of the arbitrators shall be paid as determined by such
arbitrator(s), and all costs and expenses of experts, witnesses and other
persons retained by the parties shall be borne by them respectively.
2. If WFM's Notice relates to any third party action, suit or proceeding
brought against WFM or FF with respect to matters for which an indemnification
claim may be made under said Section 8.3, and such matter is in dispute as
provided in paragraph 1 above, the following procedures shall be applicable
pending the resolution of the dispute:
(ii) Such action, suit or proceeding shall be defended by WFM (using
such firm of attorneys as is reasonably acceptable to the Shareholders'
<PAGE>
Representative): provided, however, that WFM hereby consents to the continued
representation of FF by the firm of Blankenship & Keith in connection with the
Dwoskin Litigation (as defined in the Merger Agreement). The Shareholders'
Representative shall be kept fully informed of such action, suit or proceeding
at all states thereof;
(ii) The Shareholders' Representative or WFM, whichever is not
controlling the defense of any matter, shall be entitled, at its expense
(payable in accordance with Section 2(e) of the Escrow Agreement to participate
in such defense;
(iii) WFM shall make available to the Shareholders' Representative and
its attorneys and accountants all books and records of WFM relating to such
proceedings or litigation and the parties hereto agree to render to each other
such assistance as they may reasonably require of each other in order to ensure
the proper and adequate defense of any such action, suit or proceeding;
(iv) WFM shall not make any settlement of any claims without the written
consent of the Shareholders' Representative; and
(v) WFM shall use its reasonable best efforts to mitigate the amount of
damages and losses it incurs in connection with any such claim.
2
<PAGE>
EXHIBIT 5
August 30, 1996
Whole Foods Market, Inc.
601 North Lamar
Suite #300
Austin, Texas 78703
Gentlemen:
Reference is made to that certain Agreement and Plan of Merger, as amended,
dated as of June 17, 1996 (the "Merger Agreement"), among Whole Foods Market,
Inc., Whole Foods Market Mid-Atlantic Inc. and Fresh Fields Markets, Inc.
Capitalized terms not defined herein have the respective meanings assigned to
them in the Merger Agreement. In connection with the closing under the Merger
Agreement, the undersigned agrees as follows:
The undersigned will not sell, transfer or otherwise dispose of any shares of
WFM Common Stock issued pursuant to the Merger that are held by the undersigned
as of the Closing Date or any shares of WFM Common Stock that are acquired by
the undersigned after the date of the Merger pursuant to the exercise of other
securities of WFM issued pursuant to the Merger that are held by the undersigned
(such shares being collectively referred to as the "Restricted Shares"), except
(1) in accordance with the applicable provisions of the Securities Act and the
rules and regulations thereunder and (2) until such time as financial results
covering at least 30 days of combined operations of WFM and FF have been
published. The undersigned acknowledges that WFM will give instructions to its
transfer agent with respect to the Restricted Shares to the effect that no
transfer of such shares shall be effected until the date on which the requisite
financial results have been published.
Very truly yours,
<PAGE>
EXHIBIT 6
JOINT FILING AGREEMENT
In accordance with Rule 13d-1(f) promulgated under the Securities Exchange Act
of 1934, the undersigned agree to the joint filing of a Statement on Schedule
13D (including any and all amendments thereto) with respect to the shares of
Common Stock, no par value per share, of Whole Foods Market, Inc., and further
agree that this Joint Filing Agreement be included as an Exhibit thereto. In
addition, each party to this Agreement expressly authorizes each other party to
this Agreement to file on its behalf any and all amendments to such Statement.
September 9, 1996
GS CAPITAL PARTNERS, L.P.
By: GS Advisors, L.P.,
its general partner
By: GS Advisors, Inc.,
its general partner
By: \s\ Richard A. Friedman
---------------------------
Name: Richard A. Friedman
Title: President
GS ADVISORS, L.P.
By: GS Advisors, Inc.
its general partner
By: \s\ Richard A. Friedman
---------------------------
Name: Richard A. Friedman
Title: President
GOLDMAN, SACHS & CO.
By: \s\ Richard A. Friedman
---------------------------
Name: Richard A. Friedman
Title: General Partner
THE GOLDMAN SACHS GROUP, L.P.
By: \s\ Richard A. Friedman
---------------------------
Name: Richard A. Friedman
Title: General Partner
