-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, CxQ7kOKjbQZBAtY/B9rNqw5+s9AIQrnSlg4NK3mSxKcmJJcwRQxoqKuYQyBH9RPX 6vE5k/UobfFM1yDo+CIZsA== 0000950130-96-003501.txt : 19960910 0000950130-96-003501.hdr.sgml : 19960910 ACCESSION NUMBER: 0000950130-96-003501 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19960909 SROS: NASD GROUP MEMBERS: GOLDMAN SACHS GROUP LP GROUP MEMBERS: GOLDMAN, SACHS & CO. GROUP MEMBERS: GS ADVISORS, L.P. GROUP MEMBERS: GS CAPITAL PARTNERS, L.P. SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: WHOLE FOODS MARKET INC CENTRAL INDEX KEY: 0000865436 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-GROCERY STORES [5411] IRS NUMBER: 741989366 STATE OF INCORPORATION: TX FISCAL YEAR END: 0929 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-42732 FILM NUMBER: 96627418 BUSINESS ADDRESS: STREET 1: 601 N LAMAR STREET 2: STE 300 CITY: AUSTIN STATE: TX ZIP: 78703 BUSINESS PHONE: 5123287541 MAIL ADDRESS: STREET 1: 601 N LAMAR STREET 2: STE 300 CITY: AUSTIN STATE: TX ZIP: 78703 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: GOLDMAN SACHS GROUP LP CENTRAL INDEX KEY: 0000904571 STANDARD INDUSTRIAL CLASSIFICATION: UNKNOWN SIC - 0000 [0000] IRS NUMBER: 133501777 STATE OF INCORPORATION: NY FISCAL YEAR END: 1130 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: 85 BROAD ST CITY: NEW YORK STATE: NY ZIP: 10004 BUSINESS PHONE: 2129021000 SC 13D 1 SCHEDULE 13D SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 SCHEDULE 13D UNDER THE SECURITIES EXCHANGE ACT OF 1934 Whole Foods Market, Inc. ----------------------------------------- (Name of Issuer) Common Stock, no par value ----------------------------------------- (Title of Class of Securities) 966837106 ----------------------------------------- (CUSIP Number) David J. Greenwald, Esq. Goldman, Sachs & Co. 85 Broad Street New York, New York 10004 (212) 902-1000 ---------------------------------- (Name, address and telephone number of person authorized to receive notices and communications) August 30, 1996 ----------------------------------------- (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 ------- - ----------------------- 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) ---------- - -------------------------------------------------------------------------------- 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 - ------------------------------------------------------------------------- Page 2 - ----------------------- 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 - -------------------------------------------------------------------------------- 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 ---------------------------- 10 Shared Dispositive Power 1,934,407 ---------------------------- 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 - ---------------------------------------------------------------------- Page 3 _____________________ 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 - ----------------------------------------------------------------- Page 4 - ---------------------- 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 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. 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 2 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. 3 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. 4 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 5 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 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 7 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 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. 9 ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER Merger Agreement. Pursuant to the Merger Agreement, the outstanding ---------------- 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 10 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. 11 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 12 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. 13 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 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 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 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 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 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 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 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 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 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 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 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.
Name and Business Address Position Present Principal Occupation - ---------------------------- ---------------------- ---------------------------- 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.
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.
Name and Business Address Position Present Principal Occupation - --------------------------- ---------------------- ---------------------------- 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.
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.
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.
Name and Business Address Position Present Principal Occupation - --------------------------- ---------------------- ---------------------------- 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.
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.
Name and Business Address Position Present Principal Occupation - --------------------------- --------------------- ---------------------------- Robert J. Katz Director and General Partner of Goldman, Chairman of the Board Sachs & Co. Hideo Ishihara President and Director General Partner of Goldman,
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.
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.
Name and Business Address Position Present Principal Occupation - --------------------------- ------------------------------ ---------------------------- 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.
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.
Name and Business Address Position Present Principal Occupation - --------------------------- ------------------------------ ---------------------------- 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,
Sachs & Co. James B. McHugh Secretary Vice President of Goldman, Sachs & Co. 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.
Name and Business Address Position Present Principal Occupation - --------------------------- ------------------------ ---------------------------- 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.
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. Schedule IV
Cusip Security Ref. Number Purchases Sales Price Trade Date Settl Date - ----- -------- ----------- --------- ----- ----- ---------- ---------- 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
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. EX-4 2 ESCROW AGREEMENT 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 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 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 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 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 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 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 (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 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 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 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 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' 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 EX-5 3 LOCK UP AGREEMENT 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, EX-6 4 JOINT FILING AGREEMENT 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 -----END PRIVACY-ENHANCED MESSAGE-----