WHOLE FOODS MARKET INC (Form: 8-K, Received: 04/16/2009 06:03:56)

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 8-K

CURRENT REPORT

Pursuant to Section 13 or 15(d) of The Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): April 11, 2009

WHOLE FOODS MARKET, INC.

(Exact name of registrant as specified in its charter)

Texas

0-19797

74-1989366

(State or other jurisdiction
of incorporation)

(Commission

File Number)

IRS Employer
Identification No.)

550 Bowie St.

Austin, Texas 78703

(Address of principal executive offices)

Registrant’s telephone number, including area code:

(512) 477-4455

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instructions A.2. below):

¨	Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

¨	Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

¨	Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

¨	Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4 (c))

Item 1.01 Entry into a Material Definitive Agreement.

On April 12, 2009, Whole Foods Market, Inc. (the “ Company ”) entered into an amendment (the “ First Amendment ”) to the Securities Purchase Agreement dated November 5, 2008, among the Company, Green Equity Investors V, L.P., Green Equity Investors Side V, L.P. and Thyme Coinvest, LLC (as added by a joinder agreement dated December 2, 2008). As contemplated by the First Amendment, the Company filed the Articles of Amendment to the Amended and Restated Articles of Incorporation (the “ Articles of Amendment ”), dated April 12, 2009, to amend and restate the Statement of Designations governing the Series A Preferred Stock.

The Articles of Amendment eliminate the participation feature of the Company’s Series A 8.00% Redeemable Convertible Exchangeable Preferred Stock, par value $0.01 per share (the “ Series A Preferred Stock ”), and provide for the mandatory payment of cash dividends in respect of the Series A Preferred Stock. To the extent the Company fails to pay dividends on the Series A Preferred Stock in cash, an amount equal to 12% of the liquidation preference of each share of the Series A Preferred Stock shall be added to the liquidation preference of such share of Series A Preferred Stock. The Company also has agreed not to restrict, limit, prohibit or prevent its ability to pay dividends in full in cash on the Series A Preferred Stock at any time, except as provided in the Company’s two existing credit facilities, provided that refinancing of such credit facilities is permitted.

For as long as any shares of the Series A Preferred Stock remain outstanding, the First Amendment provides that the Company will not, without the prior written consent of the holders representing at least a majority of the shares of Series A Preferred Stock then outstanding, issue or assume certain types of preferred stock, incur or assume or otherwise become liable for certain types of convertible or exchangeable indebtedness or issue certain other instruments treated as “stock” for purposes of Section 305 of the Internal Revenue Code of 1986, as amended. The Articles of Amendment also restrict the Company’s ability to pay cash dividends on its common stock without the prior written consent of the holders representing at least a majority of the shares of Series A Preferred Stock then outstanding. The Series A Preferred Stock also will receive anti-dilution adjustments for the payment of non-participating cash dividends on the Company’s common stock, par value $0.01.

In addition, on April 11, 2009, the Company’s board of directors approved a new form of indemnification agreement (the “ Indemnification Agreement ”) for its directors and officers (each, an “ Indemnitee ”), which will replace the Company’s existing indemnification agreements. Under the Indemnification Agreement, the Company and its significant subsidiaries agree to indemnify the directors and officers against liability arising out of the individual’s performance of his duties as director or officer to such entities. The Indemnification Agreement provides indemnification in addition to the indemnification provided by the Company’s Amended and Restated Articles of Incorporation, Amended and Restated Bylaws and applicable law and indemnifies the directors and officers for certain expenses (including attorneys’ fees), judgments, fines and settlement amounts actually and reasonably incurred by him in any action or proceeding, including any action by or in the right of the Company arising out of his service to the Company or to any other entity to which he provides services at the Company’s request. Further, the Company agrees to advance expenses the Indemnitee may spend as a result of any proceeding against him as to which he could be indemnified.

The foregoing descriptions of the Articles of Amendment, the First Amendment and the Indemnification Agreement are a general description only and are qualified in their entirety by reference to the Articles of Amendment, the First Amendment and the form Indemnification Agreement, copies of which are attached hereto as Exhibits 3.1, 10.1 and 10.2, respectively, and incorporated herein by reference.

Item 3.03. Material Modification to Rights of Security Holders.

See Item 1.01 herein for information regarding the Articles of Amendment and changes to the rights associated with the Series A Preferred Stock, which information is qualified in its entirety by reference to the Articles of Amendment, the First Amendment and the form Indemnification Agreement, copies of which are attached hereto as Exhibits 3.1, 10.1 and 10.2, respectively, and incorporated herein by reference.

Item 5.03. Amendment to Articles of Incorporation or Bylaws; Change in Fiscal Year.

Item 9.01 Financial Statements and Exhibits.

The following exhibits are being filed as part of this report:


3.1		Articles of Amendment to the Amended and Restated Articles of Incorporation of Whole Foods Market, Inc.
10.1		Amendment No. 1 to the Securities Purchase Agreement dated April 12, 2009, among Whole Foods Market, Inc., Green Equity Investors V, L.P., Green Equity Investors Side V, L.P. and Thyme Coinvest, LLC
10.2		Form of Indemnification Agreement

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.


	WHOLE FOODS MARKET, INC.

Date: April 16, 2009	By:	/s/ Roberta Lang
		Roberta Lang Global Vice President of Legal Affairs, Secretary and General Counsel

Exhibit 3.1

ARTICLES OF AMENDMENT

TO THE

AMENDED AND RESTATED

ARTICLES OF INCORPORATION

WHOLE FOODS MARKET, INC.

A Texas Corporation

Pursuant to the provisions of Article 4.04 of the Texas Business Corporation Act, the undersigned corporation adopts the following Articles of Amendment to its Amended and Restated Articles of Incorporation.

ARTICLE ONE

The name of the corporation is Whole Foods Market, Inc. (the “ Company ”).

ARTICLE TWO

The Statement of Designations of Series A 8.00% Redeemable Convertible Exchangeable Participating Preferred Stock, par value $0.01 per share, of the Company filed by the Secretary of State of the State of Texas on December 2, 2008 is amended in its entirety to read as follows:

STATEMENT OF DESIGNATIONS OF

SERIES A 8.00% REDEEMABLE CONVERTIBLE

EXCHANGEABLE PREFERRED STOCK,

PAR VALUE $0.01 PER SHARE,

WHOLE FOODS MARKET, INC.

Section 1. Designation . The designation of the series of Preferred Stock is “Series A 8.00% Redeemable Convertible Exchangeable Preferred Stock” (the “ Series A Preferred Stock ”). Each share of the Series A Preferred Stock shall be identical in all respects to every other share of the Series A Preferred Stock. The Series A Preferred Stock shall be subordinate, and rank junior in right of payment, to all indebtedness of the Company and may only receive payments pursuant to this Statement of Designations as provided herein.

Section 2. Number of Shares . The authorized number of shares of Series A Preferred Stock is 425,000. Shares of Series A Preferred Stock that are redeemed, purchased or otherwise acquired by the Company, or converted into another series of Preferred Stock, shall revert to authorized but unissued shares of Preferred Stock ( provided that any such cancelled shares of Series A Preferred Stock may be reissued only as shares of any series other than Series A Preferred Stock).

Section 3. Definitions . As used herein with respect to the Series A Preferred Stock:

(a) “ Affiliate ” of any Person shall mean any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such Person. For purposes of this definition, “control” when used with respect to any Person has the meaning specified in Rule 12b-2 under the Exchange Act; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.

(b) “ Articles of Incorporation ” means the Company’s Amended and Restated Articles of Incorporation, as amended from time to time.

(c) “ Beneficially Own ” shall mean “beneficially own” as defined in Rule 13d-3 of the Exchange Act or any successor provision thereto.

(d) “ Board of Directors ” shall mean the board of directors of the Company.

(e) “ By-laws ” shall mean the amended by-laws of the Company in effect on the date hereof, as they may be amended from time to time.

(f) “ Business Day ” shall mean a day that is a Monday, Tuesday, Wednesday, Thursday or Friday and is not a day on which banking institutions in Austin, Texas generally are authorized or obligated by law, regulation or executive order to close.

(g) “ Capital Stock ” shall mean any and all shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interests in (however designated) stock issued by the Company.

(h) “ Change of Control ” shall mean the occurrence of any of the following:

(1) any Person shall Beneficially Own, directly or indirectly, through a purchase, merger or other acquisition transaction or series of transactions, shares of the Company’s Capital Stock entitling such Person to exercise 50% or more of the total voting power of all classes of Voting Stock of the Company, other than an acquisition by the Company, any of the Company’s Subsidiaries or any of the Company’s employee benefit plans (for purposes of this clause (1), “Person” shall include any syndicate or group that would be deemed to be a “person” under Section 13(d)(3) of the Exchange Act);

(2) the Company (i) merges or consolidates with or into any other Person, another Person merges with or into the Company, or the Company conveys, sells, transfers or leases all or substantially all of the Company’s assets to another Person or (ii) engages in any recapitalization, reclassification or other transaction in which all or substantially all of the Common Stock is exchanged for or converted into cash, securities or other property, in each case other than a merger or consolidation:

(a) that does not result in a reclassification, conversion, exchange or cancellation of the Company’s outstanding Common Stock; or

(b) which is effected solely to change the Company’s jurisdiction of incorporation and results in a reclassification, conversion or exchange of outstanding shares of the Common Stock solely into shares of common stock of the surviving entity; or

(c) where the Voting Stock outstanding immediately prior to such transaction is converted into or exchanged for Voting Stock of the surviving or transferee Person constituting a majority of the outstanding shares of such Voting Stock of such surviving or transferee Person (immediately after giving effect to such issuance); or

(3) at any time the Continuing Directors do not constitute a majority of the Company’s Board of Directors (or, if applicable, a successor Person to the Company),

provided , that a Change of Control shall not result from transfers by Green Equity Investors V, L.P., Green Equity Investors Side V, L.P. or Thyme Coinvest, LLC to any Person.

(i) “ Close of Business ” shall mean 5:00 p.m., Austin, Texas time, on any Business Day.

(j) “ Closing Price ” shall mean, with respect to a share of Capital Stock of a Person, the price per share of the final trade of the Capital Stock on the applicable Trading Day on the principal national securities exchange on which the Capital Stock is listed or admitted to trading; provided , however , that, if the Capital Stock is not so listed or traded, the Closing Price shall be equal to the fair market value of such share, as determined in good faith by the Board of Directors.

(k) “ Code ” shall mean the Internal Revenue Code of 1986, as amended.

(l) “ Common Stock ” shall mean the common stock, no par value, of the Company.

(m) “ Company ” shall have the meaning ascribed to it in the recitals.

(n) “ Continuing Directors ” means (1) individuals who on the Original Issue Date constituted the Board of Directors and (2) any new directors whose election to the Board of Directors or whose nomination for election by the shareholders of the Company was approved by at least a majority of the directors then still in office (or a duly constituted committee thereof), either who were directors on the Original Issue Date or whose election or nomination for election was previously so approved.

(o) “ Conversion Cap ” shall have the meaning ascribed to it in Section 7(a).

(p) “ Conversion Rate ” shall mean 68.9655, subject to adjustment as set forth in Section 8.

(q) “ Current Market Price ” shall mean the average Closing Price for the ten (10) consecutive Business Days immediately preceding, but not including, the date as of which the Current Market Price is to be determined.

(r) “ Deemed Distribution ” shall have the meaning ascribed to it in Section 10(c)(iii)(A).

(s) “ Distributed Property ” shall have the meaning ascribed to it in Section 8(c).

(t) “ Dividend Payment Date ” shall mean January 1, April 1, July 1 and October 1 of each year, commencing on January 1, 2009; provided that if any such Dividend Payment Date would otherwise occur on a day that is not a Business Day, such Dividend Payment Date shall instead be (and any dividend payable on Series A Preferred Stock on such Dividend Payment Date shall instead be payable on) the immediately succeeding Business Day.

(u) “ Dividend Period ” shall mean the period commencing on and include a Dividend Payment Date (other than the initial Dividend Period, which shall commence on and include the Original Issue Date of the Series A Preferred Stock) and shall end on and include the calendar day next preceding the next Dividend Payment Date.

(v) “ Dividend Rate ” shall mean 8.00% per annum, subject to adjustment as set forth in Section 4(c).

(w) “ Exchange Act ” shall mean the Securities Exchange Act of 1934, as amended.

(x) “ Exchange Notes ” shall have the meaning ascribed to it in Section 9(a).

(y) “ Exchange Property ” shall have the meaning ascribed to it in Section 11(a).

(z) “ Excluded Issuance ” shall mean any issuances of (1) Capital Stock pursuant to an employee or director stock option or incentive compensation or similar plan outstanding as of the date hereof or, subsequent to the date hereof, approved by the Board of Directors or a duly authorized committee of the Board of Directors, (2) securities pursuant to any merger, joint venture, partnership, consolidation, dissolution, liquidation, tender offer, recapitalization, reorganization, share exchange, business combination or similar transaction or any other direct or indirect acquisition by the Company, whereby the Company’s securities comprise, in whole or in part, the consideration paid by the Company in such transaction, (3) securities pursuant to a registration statement declared effective by the Securities and Exchange Commission, or a prospectus approved by the appropriate functional regulator under the applicable securities laws of any foreign jurisdiction, for which the securities so registered are to be offered and sold to the broad investing public by means of an at-the-market underwritten offering, (4) Capital Stock pursuant to options, warrants, notes or other rights to acquire securities of the Company outstanding on the date hereof or issued pursuant to an Excluded Issuance under clauses (1) through (3) above, and (5) Common Stock issued upon conversion of the Series A Preferred Stock.

(aa) “ Expiration Date ” shall have the meaning ascribed to it in Section 8(d).

(bb) “ Fundamental Change ” shall mean (1) a Change of Control, (2) the Company, within the meaning of Title 11 of the U.S. Code or any similar federal or state law for the relief of debtors, (a) commences a voluntary case, (b) consents to the entry of an order for relief against it in an involuntary case, (c) consents to the appointment of a custodian of it for all or

substantially all of its property or (d) makes a general assignment for the benefit of its creditors or (3) the Common Stock ceases to be listed on any of the Nasdaq Global Select Market, the Nasdaq Global Market or the New York Stock Exchange without the simultaneous listing on another of such exchanges.

(cc) “ Junior Stock ” shall mean the Common Stock and any other class or series of stock of the Company that ranks junior to the Series A Preferred Stock (1) as to the payment of dividends or (2) as to the distribution of assets on any liquidation, dissolution or winding up of the Company, or both.

(dd) “ Liquidating Distribution ” shall have the meaning ascribed to it in Section 8(c).

(ee) “ Liquidation Preference ” shall initially mean $1,000 per share of Series A Preferred Stock; provided , however , that to the extent that the Company does not declare and pay a dividend in cash on a Dividend Payment Date pursuant to Section 4(b), an amount equal to 12.00% of the Liquidation Preference of each share of Series A Preferred Stock as of the applicable Dividend Payment Date shall be added to the Liquidation Preference of such share.

(ff) “ Original Issue Date ” shall mean December 2, 2008.

(gg) “ Parity Stock ” shall mean any class or series of stock of the Company (other than the Series A Preferred Stock) that ranks equally with the Series A Preferred Stock both (1) in the priority of payment of dividends and (2) in the distribution of assets upon any liquidation, dissolution or winding up of the Company (in each case, without regard to whether dividends accrue cumulatively or non-cumulatively).

(hh) “ Permitted Holders ” shall mean, collectively, Green Equity Investors V, L.P., Green Equity Investors Side V, L.P., Thyme Coinvest, LLC and their respective Affiliates (including commonly controlled or commonly managed investment funds).

(ii) “ Person ” shall mean any individual, company, partnership, limited liability company, joint venture, association, joint stock company, trust, unincorporated organization, government or agency or political subdivision thereof or any other entity.

(jj) “ Preferred Director ” has the meaning ascribed to it in Section 10(b).

(kk) “ Preferred Stock ” shall mean any and all series of preferred stock of the Company, including the Series A Preferred Stock.

(ll) “ Record Date ” shall mean, with respect to any dividend, distribution or other transaction or event in which the holders of Common Stock have the right to receive any cash, securities or other property or in which the Common Stock (or other applicable security) is exchanged for or converted into any combination of cash, securities or other property, the date fixed for determination of shareholders entitled to receive such cash, securities or other property (whether such date is fixed by the Board of Directors or by statute, contract, this Statement of Designations or otherwise).

(mm) “ Reorganization Event ” shall have the meaning ascribed to it in Section 11(a).

(nn) “ Series A Preferred Stock ” shall have the meaning ascribed to it in Section 1.

(oo) “ Spin-Off ” shall have the meaning ascribed to it in Section 8(c).

(pp) “ Statement of Designations ” shall mean the Statement of Designations relating to the Series A Preferred Stock, as it is amended hereby and as it may be amended from time to time.

(qq) “ Subsidiary ” shall mean any company or corporate entity for which the Company owns at least 50% of the Voting Stock of such entity.

(rr) “ TBCA ” shall mean the Texas Business Corporation Act or any successor thereto.

(ss) “ TBOC ” shall mean the Texas Business Organizations Code or any successor thereto.

(tt) “ Trading Day ” shall mean any Business Day on which the Common Stock is traded, or able to be traded, on the principal national securities exchange on which the Common Stock is listed or admitted to trading.

(uu) “ Trigger Event ” shall have the meaning ascribed to it in Section 8(c).

(vv) “ Voting Stock ” shall mean Capital Stock of the class or classes pursuant to which the holders thereof have the general voting power under ordinary circumstances (determined without regard to any classification of directors) to elect one or more members of the Board of Directors of the Company (without regard to whether or not, at the relevant time, Capital Stock of any other class or classes (other than Common Stock) shall have or might have voting power by reason of the happening of any contingency).

Section 4. Dividends .

(a) Rate . Subject to adjustment as set forth herein, holders of the Series A Preferred Stock shall be entitled to receive, on each share of Series A Preferred Stock, out of funds legally available for the payment of dividends, cash dividends with respect to each Dividend Period (1) in an amount equal to the Dividend Rate on the Liquidation Preference per share of Series A Preferred Stock and (2), in the event a cash dividend or other distribution in cash has been declared on the Common Stock during the initial Dividend Period, an additional amount equal to (A) the Liquidation Preference divided by the Conversion Rate, each in effect on the record date for such dividend, times (B) the cash amount per share distributed or to be distributed in respect of the Common Stock. Dividends payable at the Dividend Rate shall begin to accrue and be cumulative from the Original Issue Date, whether or not the Company has funds legally available for such dividends or such dividends are declared, shall compound on each Dividend Payment Date ( i.e. , no dividends shall accrue on other dividends unless and until the first Dividend Payment Date for such other dividends has passed without such other dividends having been paid on such date) and shall be payable in arrears on the first Dividend Payment Date after such Dividend Period. Dividends that are payable on the Series A Preferred Stock on any Dividend Payment Date shall be payable to holders of record of the Series A Preferred Stock as they appear on the stock register of the Company on the record date for such dividend, which shall be the date 15 days prior to the applicable Dividend Payment Date.

Dividends payable at the Dividend Rate on the Series A Preferred Stock in respect of any Dividend Period shall be computed on the basis of a 360-day year consisting of twelve 30-day months. The amount of dividends payable at the Dividend Rate on the Series A Preferred Stock on any date prior to the end of a Dividend Period, and for the initial Dividend Period, shall be computed on the basis of a 360-day year consisting of twelve 30-day months, and actual days elapsed over a 30-day month.

(b) Payment of Dividends . Cash dividends shall be paid on each Dividend Payment Date as provided in this Section 4 unless the Board of Directors has determined that the payment of such dividend is not permitted by Article 2.38 of the TBCA, Section 21.303 of the TBOC, or judicial interpretations applicable thereto. The determination of whether the payment of dividends on a Dividend Payment Date is so permitted shall be made by the Board of Directors on a date designated by the Board of Directors that is not more than 120 days and not less than 30 days prior to the applicable Dividend Payment Date and shall be based on any of the statements, valuations, or information, or any combination thereof, authorized by Article 2.38-3.A. of the TBCA, Section 21.314 of the TBOC or judicial interpretations applicable thereto. The Company and the Board of Directors shall take all actions permitted under applicable law necessary to permit the Company to pay cash dividends on each Dividend Payment Date in accordance with this Section 4 and Article 2.38 of the TBCA or Section 21.303 of TBOC, as applicable.

(c) Adjustment to Dividend Rate . If, at any time after December 2, 2011, the Closing Price of the Common Stock equals or exceeds $17.75 per share (subject to appropriate adjustment in the event of a stock split, stock dividend, combination or other similar recapitalization) for each Trading Day during any 20 consecutive Trading Day period, the Dividend Rate shall become 6.00% commencing on the day immediately following the last Trading Day of such 20 consecutive Trading Day period and for all subsequent Dividend Periods. In addition, if, at any time after December 2, 2011, the Closing Price of the Common Stock equals or exceeds $23.13 per share (subject to appropriate adjustment in the event of a stock split, stock dividend, combination or other similar recapitalization) for each Trading Day during any 20 consecutive Trading Day period, the Dividend Rate shall become 4.00% commencing on the day immediately following the last Trading Day of such 20 consecutive Trading Day period and for all subsequent Dividend Periods.

Within 30 days of any change to the Dividend Rate, the Company shall send notice by first class mail, postage prepaid, addressed to the holders of record of the Series A Preferred Stock stating the new Dividend Rate. Any notice mailed as provided in this Subsection shall be conclusively presumed to have been duly given, whether or not the holder receives such notice, but failure duly to give such notice by mail, or any defect in such notice or in the mailing thereof, to any holder of shares of Series A Preferred Stock shall not affect the validity of the revised Dividend Rate.

(d) Priority of Dividends . Subject to Section 8 and Section 10, such dividends (payable in cash, securities or other property) as may be determined by the Board of Directors or

an authorized committee thereof may be declared and paid on any securities, including Common Stock and other Junior Stock, from time to time out of any funds legally available for such payment.

Section 5. Liquidation Rights .

(a) Voluntary or Involuntary Liquidation . In the event of any liquidation, dissolution or winding up of the affairs of the Company, whether voluntary or involuntary, holders of the Series A Preferred Stock shall be entitled to receive for each share of Series A Preferred Stock, out of the assets of the Company or proceeds thereof (whether capital or surplus) available for distribution to shareholders of the Company, and after satisfaction of all liabilities and obligations to creditors of the Company, before any distribution of such assets or proceeds is made to or set aside for the holders of Junior Stock, an amount equal to the greater of (1) the sum of (A) the Liquidation Preference per share of the Series A Preferred Stock plus (b) an amount per share equal to accrued but unpaid dividends not previously added to the Liquidation Preference from and including the immediately preceding Dividend Payment Date to but excluding the date fixed for such liquidation, dissolution or winding up of the Company and (2) the per share amount of all cash and other property to be distributed in respect of the Common Stock such holder would have been entitled to had it converted such Series A Preferred Stock (without regard to the Conversion Cap) immediately prior to the date fixed for such liquidation, dissolution or winding up of the Company. To the extent such amount is paid in full to all holders of Series A Preferred Stock, the holders of other Capital Stock of the Company shall be entitled to receive all remaining assets of the Company (or proceeds thereof) according to their respective rights and preferences.

(b) Partial Payment . If in connection with any distribution described in Section 5(a) above the assets of the Company or proceeds thereof are not sufficient to pay the Liquidation Preferences in full to all holders of Series A Preferred Stock and all holders of Parity Stock, the amounts paid to the holders of Series A Preferred Stock and to the holders of all such other Parity Stock shall be paid pro rata in accordance with the respective aggregate Liquidation Preferences of the holders of Series A Preferred Stock and the holders of all such other Parity Stock.

(c) Merger, Consolidation and Sale of Assets Not Liquidation . For purposes of this Section 5, the merger or consolidation of the Company with any other corporation or other entity, including a merger or consolidation in which the holders of Series A Preferred Stock receive cash, securities or other property for their shares, or the sale, lease or exchange (for cash, securities or other property) of all or substantially all of the assets of the Company, shall not constitute a liquidation, dissolution or winding up of the Company.

Section 6. Redemption .

(a) Optional Redemption . The Series A Preferred Stock may be redeemed, in whole or in part, at any time after December 2, 2013, at the option of the Company, upon giving notice of redemption pursuant to Section 6(c), at a redemption price per share equal to the applicable percentage set forth below multiplied by the sum of (a) the Liquidation Preference per share of the Series A Preferred Stock plus (b) an amount per share equal to accrued but unpaid dividends

not previously added to the Liquidation Preference on such share of Series A Preferred Stock from and including the immediately preceding Dividend Payment Date to but excluding the date of redemption. The following redemption prices are for shares of Series A Preferred Stock redeemed during the 12-month period commencing on December 2 of the years set forth below:


Year	Applicable Percentage
2013	104.00	%
2014	102.67	%
2015	101.33	%
2016 and thereafter	100.00	%

The Series A Preferred Stock may be redeemed by the Company, in whole or in part, at a redemption price per share equal to the sum of (a) the Liquidation Preference per share plus (b) an amount per share equal to accrued but unpaid dividends not previously added to the Liquidation Preference on such share of Series A Preferred Stock from and including the immediately preceding Dividend Payment Date to but excluding the date of redemption, upon a minimum of 30 days’ prior written notice of redemption delivered pursuant to Section 6(c), if, and only if, (1) the Closing Price of the Common Stock equals or exceeds $28.50 per share (subject to appropriate adjustment in the event of a stock split, stock dividend, combination or other similar recapitalization) for each Trading Day during any 20 consecutive Trading Day period ending three Business Days before sending the notice of redemption and (2) at the time of such notice and throughout the notice period, the Company has made available an effective resale registration statement and related prospectus that will permit the holder of any Common Stock issued upon conversion of the Series A Preferred Stock to be immediately resold thereunder. Notwithstanding the foregoing, the Company shall not be permitted to redeem shares of Series A Preferred Stock held by any holder thereof pursuant to this paragraph if and to the extent that such holder would, after giving effect to the conversion of such shares of Series A Preferred Stock, Beneficially Own in excess of 19.99% of the Company’s Voting Stock. Shares of Preferred Stock not redeemable as a result of the foregoing shall remain outstanding and shall become redeemable pursuant to this paragraph to the extent the foregoing limitation no longer applies.

(b) Redemption at the Option of the Holder . Upon the occurrence of a Fundamental Change, each holder of the Series A Preferred Stock shall have the right to require the Company to repurchase all or any part of such holder’s Series A Preferred Stock at a purchase price per share equal to 101% of the sum of (a) the Liquidation Preference per share of the Series A Preferred Stock plus (b) an amount equal to accrued but unpaid dividends not previously added to the Liquidation Preference per share on such share of Series A Preferred Stock from and including the immediately preceding Dividend Payment Date to but excluding the date of redemption.

Within 30 days of the occurrence of a Fundamental Change, the Company shall send notice by first class mail, postage prepaid, addressed to the holders of record of the shares of Series A Preferred Stock at their respective last addresses appearing on the books of the Company stating (1) that a Fundamental Change has occurred, (2) that all shares of Series A

Preferred Stock tendered prior to a Business Day no earlier than 30 days nor later than 60 days from the date such notice is mailed shall be accepted for redemption and (3) the procedures that holders of the Series A Preferred Stock must follow in order to redeem their shares of Series A Preferred Stock, including the place or places where certificates for such shares are to be surrendered for payment of the redemption price. Any notice mailed as provided in this Subsection shall be conclusively presumed to have been duly given, whether or not the holder receives such notice, but failure duly to give such notice by mail, or any defect in such notice or in the mailing thereof, to any holder of shares of Series A Preferred Stock designated for redemption shall not affect the validity of the proceedings for the redemption of any other shares of Series A Preferred Stock.

On and after December 2, 2020, each holder of the Series A Preferred Stock shall have the right, by providing written notice to the Company, to require the Company to repurchase all or any part of such holder’s Series A Preferred Stock at a purchase price equal to 100% of the sum of (a) the Liquidation Preference per share of the Series A Preferred Stock plus (b) an amount per share equal to accrued but unpaid dividends not previously added to the Liquidation Preference on such share of Series A Preferred Stock from and including the immediately preceding Dividend Payment Date to but excluding the date of redemption.

(c) Notice of Redemption at the Option of the Company . Notice of every redemption of shares of Series A Preferred Stock pursuant to Section 6(a) shall be given by first class mail, postage prepaid, addressed to the holders of record of the shares to be redeemed at their respective last addresses appearing on the books of the Company. Such mailing shall be at least 30 days and not more than 60 days before the date fixed for redemption. Any notice mailed as provided in this Section 6(c) shall be conclusively presumed to have been duly given, whether or not the holder receives such notice, but failure duly to give such notice by mail, or any defect in such notice or in the mailing thereof, to any holder of shares of Series A Preferred Stock designated for redemption shall not affect the validity of the proceedings for the redemption of any other shares of Series A Preferred Stock. Each notice of redemption given to a holder shall state: (1) the redemption date; (2) the number of shares of the Series A Preferred Stock to be redeemed and, if less than all the shares held by such holder are to be redeemed, the number of such shares to be redeemed from such holder; (3) the redemption price; and (4) the place or places where certificates for such shares are to be surrendered for payment of the redemption price.

(d) Partial Redemption . In case of any redemption of part of the shares of Series A Preferred Stock at the time outstanding, the shares to be redeemed shall be selected pro rata . Subject to the provisions hereof, the Company shall have full power and authority to prescribe the terms and conditions upon which shares of Series A Preferred Stock shall be redeemed from time to time. If fewer than all the shares represented by any certificate are redeemed, a new certificate shall be issued representing the unredeemed shares without charge to the holder thereof.

(e) Effectiveness of Redemption . If notice of redemption has been duly given and if on or before the redemption date specified in the notice all funds necessary for the redemption have been deposited by the Company, in trust for the pro rata benefit of the holders of the shares called for redemption, with a bank or trust company doing business in the Borough of

Manhattan, The City of New York, and having a capital and surplus of at least $500 million and selected by the Board of Directors, so as to be and continue to be available solely therefor, then, notwithstanding that any certificate for any share so called for redemption has not been surrendered for cancellation, on and after the redemption date dividends shall cease to accrue on all shares so called for redemption, all shares so called for redemption shall no longer be deemed outstanding and all rights with respect to such shares shall forthwith on such redemption date cease and terminate, except only the right of the holders thereof to receive the amount payable on such redemption from such bank or trust company, without interest. Any funds unclaimed at the end of three years from the redemption date shall, to the extent permitted by law, be released to the Company, after which time the holders of the shares so called for redemption shall look only to the Company for payment of the redemption price of such shares.

Section 7. Conversion .

(a) Mechanics . Each share of Series A Preferred Stock may be converted on any date, from time to time, at the option of the holder thereof, into the number of shares of Common Stock equal to the quotient of (i) the sum of (A) the Liquidation Preference plus (B) an amount per share equal to accrued but unpaid dividends not previously added to the Liquidation Preference on such share of Series A Preferred Stock from and including the immediately preceding Dividend Payment Date to but excluding the conversion date and (ii) 1,000, multiplied by the Conversion Rate in effect at such time; provided , however , that a holder shall not be permitted to convert shares of Series A Preferred Stock into shares of Common Stock pursuant to this Section 7 if and to the extent that any such holder would Beneficially Own in excess of 19.99% of the Company’s Voting Stock as a result thereof (measured at the time of such conversion and calculated after giving effect to the proposed conversion) (such limitation, the “ Conversion Cap ”). Shares of Preferred Stock not convertible as a result of the foregoing shall remain outstanding and shall become convertible by such holder or another holder to the extent the Conversion Cap no longer applies.

The right of conversion attaching to any shares of Series A Preferred Stock may be exercised by the holders thereof by delivering the shares to be converted to the office of the Company, accompanied by a duly signed and completed notice of conversion in form reasonably satisfactory to the Company. The conversion date shall be the date on which the shares of Series A Preferred Stock and the duly signed and completed notice of conversion are received by the Company. The Person entitled to receive the Common Stock issuable upon such conversion shall be treated for all purposes as the record holder or holders of such Common Stock as of such conversion date, and such Person or Persons shall cease to be a record holder of the Series A Preferred Stock on that date. As promptly as practicable on or after the conversion date (and in any event no later than three Trading Days thereafter), the Company shall issue the number of whole shares of Common Stock issuable upon conversion, with any fractional shares (after aggregating all Series A Preferred Stock being converted on such date) rounded down to whole shares. Such delivery shall be made, at the option of the applicable holder, in certificated form or by book-entry. Any such certificate or certificates shall be delivered by the Company to the appropriate holder on a book-entry basis or by mailing certificates evidencing the shares to the holders at their respective addresses as set forth in the conversion notice.

(b) Common Stock Reserved for Issuance . The Company shall at all times reserve and keep available out of its authorized and unissued Common Stock, solely for issuance upon the conversion of the Series A Preferred Stock, such number of shares of Common Stock as shall from time to time be issuable upon the conversion of all the shares of Series A Preferred Stock then outstanding. Any shares of Common Stock issued upon conversion of Series A Preferred Stock shall be (i) duly authorized, validly issued and fully paid and nonassessable, (ii) shall rank pari passu with the other shares of Common Stock outstanding from time to time and (iii) shall be approved for listing on the principal national securities exchange on which the Common Stock is listed or admitted to trading.

(c) Taxes . The Company shall pay any and all taxes that may be payable in respect of the issue or delivery of shares of Common Stock on conversion of Series A Preferred Stock. The Company shall not, however, be required to pay any tax which may be payable in respect of any transfer involved in the issue and delivery of shares of Common Stock in a name other than that in which the Series A Preferred Stock so converted were registered, and no such issue or delivery shall be made unless and until the Person requesting such issue has paid to the Company the amount of any such tax, or has established to the satisfaction of the Company that such tax has been paid.

Section 8. Dilution Adjustments . The Conversion Rate shall be adjusted from time to time (successively and for each event described) by the Company as follows:

(a) If the Company shall, at any time or from time to time while any of the Series A Preferred Stock is outstanding, issue shares of Common Stock as a dividend or distribution on shares of Common Stock, or if the Company effects a share split or share combination in respect of the Common Stock, then the Conversion Rate shall be adjusted based on the following formula:

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where


CR ₀	=	the Conversion Rate in effect immediately prior to the Close of Business on the Record Date for such dividend or distribution, or the Close of Business on the effective date of such share split or combination, as applicable;

CR’	=	the new Conversion Rate in effect immediately after the Close of Business on the Record Date for such dividend or distribution, or the Close of Business on the effective date of such share split or share combination, as applicable;

OS ₀	=	the number of shares of Common Stock outstanding immediately prior to the Close of Business on the Record Date for such dividend or distribution, or the Close of Business on the effective date of such share split or share combination, as applicable; and


OS’		=		the number of shares of Common Stock outstanding immediately after such dividend or distribution, or the Close of Business on the effective date of such share split or share combination, as applicable.

The Company shall not pay any dividend or make any distribution on shares of Common Stock held in treasury by the Company.

(b) Except as otherwise provided for by Section 8(c), if the Company shall, at any time or from time to time while any of the Series A Preferred Stock is outstanding, distribute to all or substantially all holders of its outstanding shares of Common Stock any options, rights or warrants entitling them for a period of not more than 45 calendar days from the Record Date of such distribution to subscribe for or purchase shares of Common Stock at a price per share less than the Closing Price of the Common Stock on the Trading Day immediately preceding the Record Date of such distribution, the Conversion Rate shall be adjusted based on the following formula:

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where


CR ₀	=	the Conversion Rate in effect immediately prior to the Close of Business on the Record Date for such distribution;

CR’	=	the new Conversion Rate in effect immediately after the Close of Business on the Record Date for such distribution;

OS ₀	=	the number of shares of Common Stock outstanding immediately prior to the Close of Business on the Record Date for such distribution;

X	=	the total number of shares of Common Stock issuable pursuant to such options, rights or warrants; and

Y	=	the number of shares of Common Stock equal to the aggregate price payable to exercise such options, rights or warrants divided by the average Closing Price of the Common Stock over the 10 consecutive Trading Day period ending on the Record Date.

To the extent that shares of Common Stock are not delivered pursuant to any such options, rights or warrants that are non-transferable upon the expiration or termination of such

options, rights or warrants, the Conversion Rate shall be readjusted to the Conversion Rate which would then be in effect had the adjustments made upon the distribution of such options, rights or warrants been made on the basis of the delivery of only the number of shares of Common Stock actually delivered.

In determining the aggregate price payable to exercise such options, rights or warrants, there shall be taken into account any amount payable on exercise thereof, with the value of such consideration, if other than cash, to be determined in good faith by the Board of Directors.

(c) If the Company, at any time or from time to time while any of the Series A Preferred Stock is outstanding, shall, by dividend or otherwise, distribute to all or substantially all holders of its Common Stock shares of any class of Capital Stock of the Company (other than Common Stock as covered by Section 8(a)), cash, evidences of its indebtedness, assets, property or rights or warrants to acquire Capital Stock or other securities, but excluding (i) dividends or distributions as to which an adjustment under Section 8(a) or Section 8(b) hereof shall apply, (ii) to the extent that the Series A Preferred Stock participates on an as-converted basis with the Common Stock in a cash dividend or distribution, dividends or distributions paid exclusively in cash and (iii) Spin-Offs to which the provision set forth below in this Section 8(c) shall apply (any of such shares of Capital Stock, cash, indebtedness, assets, property or rights or warrants to acquire Common Stock or other securities, hereinafter in this Section 8(c) called the “ Distributed Property ”), then, in each such case the Conversion Rate shall be adjusted based on the following formula:

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Where


CR ₀	=	the Conversion Rate in effect immediately prior to the Close of Business on the Record Date for such distribution;

CR’	=	the new Conversion Rate in effect immediately after the Close of Business on the Record Date for such distribution;

SP ₀	=	the average Closing Price of the Common Stock over the 10 consecutive Trading Day period ending on the Record Date for such distribution; and

FMV	=	(i) for cash dividends or distributions, the amount of cash distributed and (ii) for other Distributed Property, the fair market value (as determined in good faith by the Board of Directors) of the portion of Distributed Property, in each case with respect to each outstanding share of Common Stock on the Record Date for such distribution.

Notwithstanding the foregoing, if the then fair market value (as so determined) of the portion of the Distributed Property so distributed applicable to one share of Common Stock is equal to or greater than SP ₀ as set forth above (a “ Liquidating Distribution ”), then in lieu of the foregoing adjustment, the Company shall distribute to each holder of Series A Preferred Stock on the date such Distributed Property is distributed to holders of Common Stock, but without requiring such holder to convert its shares of Series A Preferred Stock, the amount of Distributed Property such holder would have received had such holder owned a number of shares of Common Stock equal to the Conversion Rate on the Record Date fixed for determination for shareholders entitled to receive such Liquidating Distribution. If the Board of Directors determines the fair market value of any distribution for purposes of this Section 8(c) by reference to the actual or when issued trading market for any securities, it shall in doing so consider the prices in such market over the same period used in computing the Current Market Price of the Common Stock for purposes of calculating SP ₀ in the formula in this Section 8(c).

With respect to an adjustment pursuant to this Section 8(c) where there has been a payment of a dividend or other distribution on the Common Stock consisting of shares of Capital Stock of any class or series, or similar equity interest, of or relating to a Subsidiary or other business unit of the Company (a “ Spin-Off ”), the Conversion Rate in effect immediately before the Close of Business on the 10 ^th Trading Day immediately following, and including, the effective date of the Spin-Off shall be increased based on the following formula:

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where


CR ₀	=	the Conversion Rate in effect immediately prior to the Close of Business on the 10 ^th Trading Day immediately following, and including, the effective date of the Spin-Off;

CR’	=	the new Conversion Rate in effect from and after the Close of Business on the 10 ^th Trading Day immediately following, and including, the effective date of the Spin-Off;

FMV	=	the average of the Closing Prices of the Capital Stock or similar equity interest distributed to holders of Common Stock applicable to one share of Common Stock over the 10 consecutive Trading Day period immediately following, and including, the effective date of the Spin-Off; and

MP ₀	=	the average Closing Price of the Common Stock over the 10 consecutive Trading Day period calculated immediately following, and including, the effective date of the Spin-Off.

Such adjustment shall occur on the 10 ^th Trading Day immediately following, and including, the effective date of the Spin-Off.

For purposes of this Section 8(c), Section 8(a) and Section 8(b) hereof, any dividend or distribution to which this Section 8(c) is applicable that also includes shares of Common Stock, or rights or warrants to subscribe for or purchase shares of Common Stock to which Section 8(a) or 8(b) hereof applies (or both), shall be deemed instead to be (1) a dividend or distribution of the evidences of indebtedness, assets or shares of Capital Stock other than such shares of Common Stock or rights or warrants to which Section 8(a) or 8(b) hereof applies (and any Conversion Rate adjustment required by this Section 8(c) with respect to such dividend or distribution shall then be made) immediately followed by (2) a dividend or distribution of such shares of Common Stock or such options, rights or warrants to which Section 8(a) or 8(b) hereof applies (and any further Conversion Rate adjustment required by Section 8(a) and 8(b) hereof with respect to such dividend or distribution shall then be made), except (A) the Close of Business on the Record Date of such dividend or distribution shall be substituted for “the Close of Business on the Record Date,” “the Close of Business on the Record Date or the Close of Business on the effective date,” “after the Close of Business on the Record Date for such dividend or distribution or the Close of Business on the effective date of such share split or share combination” and “the Close of Business on the Record Date for such distribution” within the meaning of Section 8(a) and Section 8(b) hereof and (B) any shares of Common Stock included in such dividend or distribution shall not be deemed “outstanding immediately prior to the Close of Business on the Record Date or the Close of Business on the effective date” within the meaning of Section 8(a) hereof.

If the Company shall, at any time or from time to time while any of the Series A Preferred Stock is outstanding, distribute options, rights or warrants to all or substantially all holders of Common Stock entitling the holders thereof to subscribe for, purchase or convert into shares of Capital Stock (either initially or under certain circumstances), which options, rights or warrants, until the occurrence of a specified event or events (“ Trigger Event ”): (x) are deemed to be transferred with such shares of Common Stock; (y) are not exercisable; and (z) are also issued in respect of future issuances of Common Stock, shall be deemed not to have been distributed for purposes of this Section 8(c), (and no adjustment to the Conversion Rate under this Section 8(c) shall be required) until the occurrence of the earliest Trigger Event and a distribution or deemed distribution under the terms of such options, rights or warrants at which time an appropriate adjustment (if any is required) to the Conversion Rate shall be made in the same manner as provided for under this Section 8(c). If any such options, rights or warrants are subject to events, upon the occurrence of which such options, rights or warrants become exercisable to purchase different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and Record Date with respect to new options, rights or warrants for purposes of this Section 8(c) (and a termination or expiration of the existing rights or warrants without exercise by any of the holders thereof). In addition, in the event of any distribution (or deemed distribution) of options, rights or warrants (of the type described in the preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 8(c) was made, (1) in the case of any such options, rights or warrants that shall all have been redeemed or repurchased without exercise by any holders thereof, the Conversion Rate shall be readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, as the case may be, as though it were a distribution under this Section 8(c), equal to the per share redemption or repurchase price received by a holder or holders of Common Stock with respect to such options, rights or warrants

(assuming such holder had retained such options, rights or warrants), made to all holders of Common Stock as of the date of such redemption or repurchase, and (2) in the case of such options, rights or warrants that shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate shall be readjusted as if such options, rights or warrants had not been issued.

(d) If the Company or any of its Subsidiaries makes a payment of cash or other consideration in respect of a tender offer or exchange offer for all or any portion of the Common Stock, where such cash and the value of any such other consideration included in the payment per share of Common Stock validly tendered or exchanged exceeds the Closing Price of the Common Stock on the Trading Day next succeeding the last date (the “ Expiration Date ”) on which tenders or exchanges may be made pursuant to such tender or exchange offer (as it may be amended), the Conversion Rate shall be increased based on the following formula:

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Where


CR ₀	=	the Conversion Rate in effect immediately prior to the Close of Business on the Expiration Date;

CR’	=	the new Conversion Rate in effect immediately after the Close of Business on the Expiration Date;

AC	=	the aggregate value of all cash and any other consideration (as determined in good faith by the Board of Directors) paid or payable for shares purchased in such tender or exchange offer;

OS ₀	=	the number of shares of Common Stock outstanding immediately prior to the date such tender or exchange offer expires;

OS’	=	the number of shares of Common Stock outstanding immediately after the date such tender or exchange offer expires (after giving effect to such tender offer or exchange offer); and

SP’	=	the average Closing Price of the Common Stock over the ten consecutive Trading Days ending on the Trading Day succeeding the Expiration Date.

If the Company or any Subsidiary is obligated to purchase shares of Common Stock pursuant to any such tender or exchange offer, but the Company or such Subsidiary is permanently prevented by applicable law from effecting any such purchases or all or any portion

of such purchases are rescinded, then the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such tender or exchange offer had not been made or had only been made in respect of the purchases that were effected.

(e) If the Company, at any time or from time to time while any of the Series A Preferred Stock is outstanding, shall issue shares of Common Stock for a consideration per share less than the Current Market Price on the date the Company fixes the offering price of such additional shares, the Conversion Rate shall be increased based on the following formula:

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Where:


CR ₀	=	the Conversion Rate in effect immediately prior to the issuance of such additional shares of Common Stock;

CR’	=	the new Conversion Rate in effect immediately after the issuance of such additional shares of Common Stock;

AC	=	the aggregate consideration paid or payable for such additional shares of Common Stock;

OS ₀	=	the number of shares of Common Stock outstanding immediately prior to the issuance of such additional shares of Common Stock;

OS’	=	the number of shares of Common Stock outstanding immediately after the issuance of such additional shares of Common Stock; and

SP’	=	the Closing Price of the Common Stock on the date of issuance of such additional shares of Common Stock.

The adjustment shall become effective immediately after such issuance.

This Section 8(e) does not apply to: (a) the conversion of the Series A Preferred Stock; (b) rights, options, warrants or other distributions referred to in Sections 8(a) and 8(c); and (c) Excluded Issuances.

(f) Notwithstanding the foregoing provisions of this Section 8, in no event will any adjustment pursuant to Section 8(c) (to the extent that the adjustment is the result of a dividend or distribution paid exclusively in cash), Section 8(d) or Section 8(e) increase the Conversion Rate to in excess of 93.1966.

Section 9. Exchange .

(a) Exchange at the Option of the Company . If all accrued and unpaid dividends in respect of each Dividend Period, including the latest completed Dividend Period, on all outstanding shares of the Series A Preferred Stock shall have been declared and paid in full in cash on the Dividend Payment Date on which such dividend was first payable and subject to the provisions of this Section 9, the Series A Preferred Stock shall be exchangeable, in whole and not in part, at the option of the Company, at any time, for cash-pay 8.00% Convertible Subordinated Notes (the “ Exchange Notes ”) in such form and substance as is approved by the Board of Directors and the holders of a majority of the outstanding shares of the Series A Preferred Stock (it being understood that the economic terms of the Series A Preferred Stock shall be replicated in the terms of the Exchange Notes to the extent practicable and that such Exchange Notes shall include no maintenance or incurrence covenants and market-standard events of default). In addition, the entry into the new registration rights agreement provided for in Section 7 of the Registration Rights Agreement, dated as of the Original Issue Date, between the Company and the initial holders of the Series A Preferred Stock shall be a condition to the exchange of the Series A Preferred Stock for the Exchange Notes. The holders of the outstanding shares of Series A Preferred Stock shall be entitled to receive in exchange for each share of Series A Preferred Stock to be exchanged by it Exchange Notes dated as of the date of exchange in a principal amount equal to (a) the Liquidation Preference per share of the Series A Preferred Stock plus (b) an amount per share equal to accrued but unpaid dividends not previously added to the Liquidation Preference on such share of Series A Preferred Stock from and including the immediately preceding Dividend Payment Date to but excluding the date of exchange. At the time of any exchange hereunder, the rights of the holders of the shares of Series A Preferred Stock as shareholders of the Corporation shall cease with respect to such Series A Preferred Stock, and the persons entitled to receive the Exchange Notes issuable upon exchange shall be treated for all purposes as the registered holders of such Exchange Notes as of the date which coincides with the date of exchange.

(b) Notice of Exchange . Notice of any exchange of shares of Series A Preferred Stock pursuant to Section 9(a) shall be given by first class mail, postage prepaid, addressed to the holders of record of the shares to be exchange at their respective last addresses appearing on the books of the Company. Such mailing shall be at least 30 days and not more than 60 days before the date fixed for exchange. Any notice mailed as provided in this Subsection shall be conclusively presumed to have been duly given, whether or not the holder receives such notice, but failure duly to give such notice by mail, or any defect in such notice or in the mailing thereof, to any holder of shares of Series A Preferred Stock designated for redemption shall not affect the validity of the proceedings for the exchange of any other shares of Series A Preferred Stock. Each notice of exchange given to a holder shall state: (1) the exchange date; (2) the exchange price; and (3) the place or places where certificates for such shares are to be surrendered for exchange, and include the form of the Exchange Notes and related indenture approved by the Company and the holders of the Series A Preferred Stock.

Section 10. Voting Rights .

(a) General . The holders of shares of Series A Preferred Stock shall be entitled to vote with the holders of the Common Stock on all matters submitted to a vote of shareholders of

the Company, except as otherwise provided herein or by applicable law. Each holder of shares of Series A Preferred Stock shall be entitled to the number of votes equal to the largest number of whole shares of Common Stock into which all shares of Series A Preferred Stock held of record by such holder could then be converted pursuant to Section 7 (subject to the Conversion Cap) at the record date for the determination of the shareholders entitled to vote on such matters or, if no such record date is established, at the date such vote is taken or any written consent of shareholders is first executed. The holders of shares of Series A Preferred Stock shall be entitled to notice of any shareholders’ meeting in accordance with the bylaws of the Company.

(b) Election of Directors .

(i) Election . Effective as of the Original Issue Date and in accordance with Article III, Section 1 of the By-laws, the number of directors constituting the Board of Directors was increased by two persons, from eight persons to ten persons (each such additional director, a “ Preferred Director ”) and the holders of a majority of the outstanding Series A Preferred Stock, voting as a separate series to the exclusion of the holders of Common Stock, shall be entitled to elect the Preferred Directors; provided , however , that unless otherwise approved by the Company’s Nominating Committee, in order for a person to qualify to serve as a Preferred Director, such person shall be a partner of Leonard Green & Partners, L.P. as of the Original Issuance Date.

(ii) Term . Each Preferred Director shall serve until the next annual meeting of the shareholders of the Company and until his or her successor is elected and qualifies in accordance with this Section 10(b) and the By-laws, unless such Preferred Director is earlier removed in accordance with the By-laws, resigns or is otherwise unable to serve. In the event any Preferred Director is removed, resigns or is unable to serve as a member of the Board of Directors, the holders of a majority of the outstanding Series A Preferred Stock, voting as a separate series to the exclusion of the holders of Common Stock, shall have the right to fill such vacancy. Each Preferred Director may only be elected to the Board of Directors by the holders of the Series A Preferred Stock in accordance with this Section 10(b), and each such director’s seat shall otherwise remain vacant.

(iii) Removal . At such time as the Permitted Holders hold shares of Series A Preferred Stock representing 7% or more but less than 10% of the Voting Stock of the Company, the number of Preferred Directors shall, automatically and immediately, without any further action on the part of the shareholders or the Board of Directors, be decreased by one (and the number of directors constituting the Board of Directors shall correspondingly be decreased). At such time as the Permitted Holders hold shares of Series A Preferred Stock representing less than 7% of the Voting Stock of the Company, the number of Preferred Directors shall, automatically and immediately, without any further action on the part of the Company or the Board of Directors, be decreased to zero (and the number of directors constituting the Board of Directors shall correspondingly be decreased (i.e., an aggregate decrease of two directors)). Subject to the right of the holders of Series A Preferred Stock to remove the Preferred Directors, no decrease in the number of Preferred Directors shall have the effect of shortening the term of any incumbent Preferred Director.

(iv) Non-Limitation of Voting Rights . For the avoidance of doubt, the right of the Series A Preferred Stock to vote for the election of the Preferred Directors shall be in addition to the right of the Series A Preferred Stock to vote together with the holders of Common Stock for the election of the other members of the Board of Directors of the Company.

(c) Class Voting Rights as to Particular Matters . So long as any shares of Series A Preferred Stock are outstanding, in addition to any other vote or consent of shareholders required by law or by the Articles of Incorporation, the vote or consent of the holders of at least a majority of the shares of Series A Preferred Stock then outstanding and entitled to vote thereon, given in person or by proxy, either in writing without a meeting or by vote at any meeting called for the purpose, shall be necessary for effecting or validating any of the actions described in clauses (i) through (v) below.

(i) Dividends, Repurchase and Redemption .

(A) The declaration or payment of any dividend or distribution on Common Stock, other Junior Stock or Parity Stock (other than a dividend payable solely in Junior Stock provided such dividend is not treated as a distribution of property for purposes of Section 305 of the Code, the Treasury Regulations promulgated thereunder or any successor provision); or

(B) the purchase, redemption or other acquisition for consideration by the Company, directly or indirectly, of any Common Stock, other Junior Stock or Parity Stock or capital stock of any of the Company’s Subsidiaries by the Company, (except as necessary to effect (1) a reclassification of Junior Stock for or into other Junior Stock, (2) a reclassification of Parity Stock for or into other Parity Stock with the same or lesser aggregate liquidation preference, (3) a reclassification of Parity Stock into Junior Stock, (4) the exchange or conversion of one share of Junior Stock for or into another share of Junior Stock, (5) the exchange or conversion of one share of Parity Stock for or into another share of Parity Stock with the same or lesser per share liquidation amount or (6) the exchange or conversion of one share of Parity Stock into Junior Stock),

provided , that in the case of clause (A) above, solely with respect to the declaration or payment of dividends or distributions on preferred stock issued in compliance with Section 10(c)(iii) below, and clause (B) above, no such vote or consent shall be necessary if (x) all accrued and unpaid dividends in respect of each Dividend Period, including the latest completed Dividend Period, on all outstanding shares of the Series A Preferred Stock shall have been declared and paid in full in cash on the Dividend Payment Date on which such dividend was first payable (i.e., no accrued but unpaid dividends shall have been added to the Liquidation Preference pursuant to Section 4(b)) and (y) the next dividend payable on the outstanding shares of Series A Preferred Stock shall be paid in full in cash on the next Dividend Payment Date.

(ii) Amendment of Series A Preferred Stock . Any amendment, alteration or repeal of any provision of the Articles of Incorporation or By-laws so as to adversely affect the relative rights, preferences, privileges or voting powers of the Series A Preferred Stock.

(iii) Prohibition on Certain Securities .

(A) The issuance or assumption of any preferred stock the terms of which would result in an increase in the Liquidation Preference being treated as a property distribution pursuant to Section 305 of the Code, the Treasury Regulations promulgated thereunder or any successor provision (a “ Deemed Distribution ”);

(B) The incurrence or assumption of any indebtedness (or any other action that would cause the Company to become liable for such indebtedness) that is convertible into or exchangeable for any Capital Stock; or

(C) The issuance of any rights, warrants, options or any other instrument that is not Capital Stock but is treated as “stock” for purposes of Section 305 of the Code, that, in the case of such securities, have an adjustment feature or otherwise provide for a change in exercise price or other terms that would result in a Deemed Distribution with respect to any instrument treated as “stock” for purposes of Section 305 of the Code.

(iv) Reclassifications . The authorization of, issuance of, or reclassification into, Parity Stock (including additional shares of the Series A Preferred Stock), Capital Stock that would rank senior to the Series A Preferred Stock or debt securities that are convertible into Capital Stock by their terms.

(v) Certain Transactions . Any transaction for which an adjustment to the Conversion Rate would not be made in full as a result of the application of Section 8(f).

(d) Changes after Provision for Redemption . No vote or consent of the holders of Series A Preferred Stock shall be required pursuant to Section 10(c) if, at or prior to the time when any such vote or consent would otherwise be required pursuant to such Section, all outstanding shares of Series A Preferred Stock shall have been redeemed, or shall have been called for redemption upon proper notice and sufficient funds shall have been deposited in trust for such redemption, in each case pursuant to Section 6 above.

Section 11. Reorganization Events .

(a) In the event of:

(i) any consolidation or merger of the Company with or into another Person or of another Person with or into the Company;

(ii) any sale, transfer, lease or conveyance to another Person of the property of the Company as an entirety or substantially as an entirety; or

(iii) any statutory share exchange of the Company with another Person (other than in connection with a merger or acquisition),

in each case in which holders of Common Stock would be entitled to receive cash, securities or other property for their shares of Common Stock (any such event specified in this Section 11(a),

a “ Reorganization Event ”), each share of Series A Preferred Stock outstanding immediately prior to such Reorganization Event shall (subject to prior redemption, including pursuant to Section 6(b) or conversion), without the consent of the holder thereof, become convertible into the cash, securities and other property receivable in such Reorganization Event by a holder of Common Stock that was not the counterparty to the Reorganization Event or an affiliate of such other party (such cash, securities and other property, the “ Exchange Property ”).

(b) In the event that holders of the shares of the Common Stock have the opportunity to elect the form of consideration to be received in such transaction, the “Exchange Property” that holders of the Series A Preferred Stock shall be entitled to receive shall be determined by the holders of a majority of the outstanding shares of Series A Preferred Stock. The number of units of Exchange Property for each share of Series A Preferred Stock converted following the effective date of such Reorganization Event shall be determined from among the choices made available to the holders of the Common Stock based on the Conversion Rate then in effect on the applicable conversion date, determined as if the references to a “shares of Common Stock” in this Statement of Designations were to “units of Exchange Property,” but without regard to the Conversion Cap.

(c) The above provisions of this Section 11 shall similarly apply to successive Reorganization Events. Without limiting the rights of the holders of the Series A Preferred Stock set forth in Section 10(c)(ii) hereof, the Company shall not enter into any agreement that would effectuate a Reorganization Event that does not provide that the Series A Preferred Stock shall be outstanding as a class of preferred stock of the surviving company after giving effect to any such Reorganization Event (but, in any event, convertible into Exchange Property in the manner described in this Section 11).

(d) The Company (or any successor) shall, within 20 days of the occurrence of any Reorganization Event, provide written notice to the holders of the Series A Preferred Stock of the occurrence of such event and of the kind and amount of the cash, securities or other property that constitutes the Exchange Property. Failure to deliver such notice shall not affect the operation of this Section 11 or the validity of any Reorganization Event.

Section 12. Record Holders . To the fullest extent permitted by applicable law, the Company may deem and treat the record holder of any share of the Series A Preferred Stock as the true and lawful owner thereof for all purposes, and the Company shall not be affected by any notice to the contrary.

Section 13. Notices .

(a) General . All notices or communications in respect of the Series A Preferred Stock shall be sufficiently given if given in writing and delivered in person or by first class mail, postage prepaid, or if given in such other manner as may be permitted in this Statement of Designations, in the Articles of Incorporation or By-laws or by applicable law or regulation. Notwithstanding the foregoing, if the Series A Preferred Stock is issued in book-entry form through The Depository Trust Company or any similar facility, such notices may be given to the holders of the Series A Preferred Stock in any manner permitted by such facility.

(b) Notice of Certain Events . The Company shall provide reasonable prior written notice to each holder of the Series A Preferred Stock of any anticipated event that is reasonably likely to result in (i) a Fundamental Change, (ii) a Reorganization Event and (iii) an event the occurrence of which would result in an adjustment to the Conversion Rate.

Section 14. Replacement Certificates . The Company shall replace any mutilated certificate at the holder’s expense upon surrender of that certificate to the Company. The Company shall replace certificates that become destroyed, stolen or lost at the holder’s expense upon delivery to the Company of reasonably satisfactory evidence that the certificate has been destroyed, stolen or lost, together with any indemnity that may be required by the Company.

Section 15. Other Rights . The shares of Series A Preferred Stock shall not have any rights, preferences, privileges or voting powers or relative, participating, optional or other special rights, or qualifications, limitations or restrictions thereof, other than as set forth herein or in the Articles of Incorporation or as provided by applicable law and regulation.

ARTICLE THREE

The above amendment has been approved in the manner required by the Texas Business Corporation Act and the Company’s constituent documents.

I N W ITNESS W HEREOF , WHOLE FOODS MARKET, INC. has caused this Certificate of Amendment to be signed by Roberta Lang, its Secretary, this 12 ^th day of April, 2009.


WHOLE FOODS MARKET, INC.

By		/s/ Roberta Lang

Exhibit 10.1

AMENDMENT NO. 1

TO SECURITIES PURCHASE AGREEMENT

This Amendment No. 1 (this “ First Amendment ”) is made as of the 12th day of April, 2009, among WHOLE FOODS MARKET, INC. , a Texas corporation (the “ Company ”), GREEN EQUITY INVESTORS V, L.P. , a Delaware limited partnership, GREEN EQUITY INVESTORS SIDE V, L.P. , a Delaware limited partnership (collectively, the “ Initial Investors ”), and THYME COINVEST, LLC , a Delaware limited liability company (together with the Initial Investors, the “ Investors ”), and amends that certain Securities Purchase Agreement, dated as of November 5, 2008 (the “ Initial Agreement ”), among the Company and the Initial Investors, as subsequently modified pursuant to that certain Joinder Agreement, dated as of December 2, 2008, among the Investors, in accordance with Section 15.5 of the Initial Agreement; the Initial Agreement as modified by the Joinder is referred to as the “ Securities Purchase Agreement ”.

WITNESSETH:

WHEREAS, the Company desires to modify certain terms of the Company’s Series A Preferred Stock initially issued pursuant to the Securities Purchase Agreement on December 2, 2008, on the terms and conditions contained herein; and

WHEREAS, in connection with such modification, the Company is willing to make certain representations and warranties and to agree to observe certain covenants set forth herein for the benefit of the Investors, and the Investors will rely on such representations, warranties and covenants as a material inducement to consent to the modification of the Series A Preferred Stock.

NOW, THEREFORE, in consideration of the premises and of the representations, warranties, covenants and conditions contained herein, the parties hereto agree as follows:

1. Defined Terms . Capitalized terms used and not otherwise defined in this First Amendment shall have the respective meanings given them in the Securities Purchase Agreement (for the avoidance of doubt, as applicable, as amended by this First Amendment).

2. Amendment and Restatement of Statement of Designations .

2.1 Prior to the execution and delivery of this First Amendment, (x) the Board has adopted a resolution setting forth amendments to the designations, preferences and relative rights of the Series A Preferred Stock as set forth in the Amended Designations (as defined in Section 2.2 hereof) and (y) in reliance on the terms and conditions hereof, each Investor party hereto has adopted the Amended Designations by executing and delivering to the Company a written consent in the form attached hereto as Exhibit A (the “ Consent ”).

2.2 The Company shall deliver to the Secretary of State of the State of Texas for filing, no later than 9:30 a.m. New York City time, on the first business day following the First Amendment Effective Date, an amendment to the Company’s Restated Articles of Incorporation amending and restating the designations, preferences and relative rights of the Series A Preferred Stock in the form attached hereto as Exhibit B (the “ Amended Designations ”).

2.3 Subject to the terms and conditions of this First Amendment, including without limitation Sections 6.2(a) and 6.3(a) hereof, the Series A Preferred Stock and the Shares hereafter shall have the designations, preferences and relative rights set forth in the Amended Designations.

3. Amendments to Securities Purchase Agreement . Subject to Section 6.3(a) hereof, upon the occurrence of the First Amendment Effective Date the following amendments are hereby made to the Securities Purchase Agreement, with full force and effect as of the First Amendment Effective Date:

3.1 Amendment to Definition . For all purposes of the Agreement other than as used in the first sentence of Section 1.1(b) thereof, “Series A Preferred Stock” shall mean “the Company’s Series A 8.00% Redeemable Convertible Exchangeable Preferred Stock, par value $0.01 per share (the ‘ Series A Preferred Stock ’)”.

3.2 Amendment of Representations and Warranties of the Company . Section 2.21 of the Securities Purchase Agreement is hereby deleted and replaced in its entirety with the following:

“2.21 No Restriction on Ability to Pay Cash Dividends . The Company is not party to any contract, agreement, arrangement or other understanding, oral or written, express or implied (each, an “ Arrangement ”), and is not subject to any provision in its Restated Articles of Incorporation or Bylaws or other governing documents or resolutions of the Board, that restricts, limits, prohibits or prevents the Company’s ability to pay dividends in full in cash on the Shares at any time other than (x) as set forth on Schedule 2.21 to this Agreement (as such Arrangements are in effect as of the Closing) and (y) any other Arrangements in effect as of the Closing that contain provisions that restrict, limit, prohibit or prevent the Company’s ability to pay dividends in full in cash on the Shares at any time, which provisions are not more restrictive, taken as a whole, than those contained in those the Arrangements set forth on Schedule 2.21 to this Agreement (as such Arrangements are in effect as of the Closing).

3.3 Addition of Schedule 2.21 . A new “ Schedule 2.21 ” is hereby added to the end of the Securities Purchase Agreement in the form attached as Schedule 2.21 to this First Amendment.

3.4 Amendment to and Addition of Covenants . Section 6 of the Securities Purchase Agreement is hereby amended as follows:

(a) Section 6.9 of the Securities Purchase Agreement is hereby deleted and replaced in its entirety with the following:

“6.9 Prohibition on Certain Securities . For as long as any Shares remain outstanding, the Company shall not, without the prior written consent of the Holders representing at least a majority of the Shares then outstanding (which consent may be withheld in their sole discretion): (i) issue or assume any preferred stock the terms of which would result in an increase in the Liquidation Preference on the Series A Preferred Stock being treated as a property distribution pursuant to Section 305 of the Code, the Treasury Regulations promulgated thereunder or any successor provision (a “ Deemed Distribution ”), (ii) incur or assume or otherwise become liable for any Indebtedness that is convertible into or exchangeable for any capital stock of the Company or (iii) issue any rights, warrants, options or any other instrument that is not capital stock but is treated as “stock” for purposes of Section 305 of the Code that, in the case of securities covered by this clause (iii), have an adjustment feature or otherwise provide for a change in exercise price or other terms that would result in a Deemed Distribution with respect to any instrument treated as “stock” for purposes of Section 305 of the Code.”

(b) The following new Section 6.11 is hereby added at the end of Section 6:

“6.11 No Restrictions on Ability to Pay Cash Dividends on the Shares . For as long as any Shares remain outstanding, the Company shall not, and shall not permit any of its Subsidiaries to, enter into any Arrangement or amend its Restated Articles of Incorporation or Bylaws or other governing documents or resolutions of the Board in a manner, that restricts, limits, prohibits or prevents (including by restricting the ability of Subsidiaries of the Company to pay dividends or make any other distributions on their capital stock, directly or indirectly, to the Company) the Company’s ability to pay dividends in full in cash on the Shares at any time. Notwithstanding the foregoing, the restrictions set forth in the first sentence of this Section 6.11 shall not apply to restrictions existing under or by reason of any agreement set forth on Schedule 2.21 to this Agreement as in effect at Closing and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that any such amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings are not more restrictive, taken as a whole, with respect to such restrictions than those contained in those agreements as in effect at Closing.”

(c) The following new Section 6.12 is hereby added at the end of Section 6, immediately after the new Section 6.11 set forth in subclause (b) above:

“6.12 Fast-Pay Stock . The Company shall not at any time treat the Series A Preferred Stock as “fast-pay stock” as defined in Treasury Regulation Section 1.7701(l)-3(b)(2) or any successor provision.”

3.5 Amendment to Indemnity .

(a) The last sentence of Section 13(a) of the Securities Purchase Agreement is hereby amended by deleting such sentence in its entirety and replacing it with the following:

“The indemnity provided in this Section 13(a) shall be the sole and exclusive remedy of the Indemnified Parties after the Closing for any inaccuracy or breach of the representations and warranties set forth in Sections 2.2(a), 2.2(c) and 2.18 of this Agreement.”

(b) The first sentence of Section 13(b) of the Securities Purchase Agreement is hereby amended by deleting all of the text commencing after the words “relating to or arising out of the failure of” through to the end of that sentence and replacing the deleted text with the following:

“the representations and warranties set forth in Section 2.21 of this Agreement to be true and correct as of the date of this Agreement and/or Closing and the breach or failure to comply with the covenants set forth in Section 6.9 of this Agreement at any time (the ‘ Additional Indemnified Liabilities ’).”

(c) The last sentence of Section 13(b) of the Securities Purchase Agreement is hereby amended by deleting such sentence in its entirety and replacing it with the following:

“The indemnity provided in this Section 13(b) shall be the sole and exclusive remedy of the Additional Indemnified Parties after the Closing for any inaccuracy or breach of the representations and warranties set forth in Section 2.21 of this Agreement and the breach or failure to comply with the covenants set forth in Section 6.9 of this Agreement.”

3.6 Amendment to Survival . Section 15.3 of the Securities Purchase Agreement is hereby deleted in its entirety and replaced with the following:

“15.3 Survival . The representations and warranties made in Sections 2.2(a), 2.2(c) and 2.18 hereof shall survive any investigation made by any Investor, and shall survive the Closing for a period of three years thereafter, and after the third anniversary of the Closing such Sections of this Agreement shall have no further force and effect, including in respect of Section 13 hereof (subject to the penultimate sentence of Section 13(a) and the penultimate sentence of Section 13(b)); and all other representations and warranties in this Agreement shall expire at the Closing and have no further force and effect. All statements of the Company as to factual matters contained in any certificate or exhibit delivered by or on behalf of the Company pursuant to this Agreement shall be deemed to be the representations and warranties of the Company hereunder as of the date of such certificate or exhibit.”

4. Representations and Warranties . The Company hereby makes the following representations and warranties as of the date hereof:

4.1 Affirmation of Amended Representation and Warranty Set Forth in this First Amendment . The representations and warranties set forth in Section 2.21 of the Securities Purchase Agreement, after giving effect to Section 3.2 of this First Amendment, were true and correct in all material respects on and as of the date of the Initial Agreement and Closing.

4.2 Organization, Good Standing and Qualification . The Company is duly organized, validly existing and in good standing under the laws of the State of Texas; has all corporate power and authority to own its properties and conduct its business as presently conducted; and is duly qualified to do business and in good standing in each and every state in the United States of America where its business requires such qualification, except where failure to qualify would not reasonably be expected to have a Material Adverse Effect.

4.3 Authorization; Enforceable Agreement .

(a) All corporate action on the part of the Company, its officers, directors, and shareholders necessary for the authorization, execution, and delivery of this First Amendment, the filing of the Amended Designations, the performance of all obligations of the Company hereunder and thereunder, and the authorization of the Shares and the Common Stock issuable upon conversion of the Shares has been taken, and the Securities Purchase Agreement, as amended by this First Amendment, when executed and delivered, assuming due authorization, execution and delivery of this First Amendment by the Investors, constitutes and will constitute valid and legally binding obligations of the Company, enforceable in accordance with their respective terms, subject to the Enforceability Exceptions.

(b) On or prior to the date hereof, the Board has duly adopted resolutions (i) evidencing its determination that as of the date hereof this First Amendment and the transactions contemplated hereby are fair to and in the best interests of the Company and its shareholders, (ii) approving this First Amendment and the transactions contemplated hereby, (iii) declaring this First Amendment advisable and (iv) adopting the Amended Designations and directing that the Amended Designations be submitted to the holders of Series A Preferred Stock for approval, and, as of the date hereof, such resolutions have not been rescinded, modified or withdrawn in any way. The Company has taken all actions necessary or appropriate to ensure that the restrictions on business combinations contained in Article 13.03.A of the Texas Business Corporation Act and Section 21.606 of the Texas Business Organizations Code will not apply with respect to or as a result of this First Amendment, the Amended Designations and the transactions contemplated hereby and thereby, including the issuance of Common Stock upon conversion of the Shares, without any further action on the part of the shareholders or the Board. True and complete copies of all resolutions of the Board reflecting such actions have been previously provided to the Investors. No provision of the Restated Articles of Incorporation or the Bylaws of the Company would, directly or

indirectly, restrict or impair the ability of the Investors to vote, or otherwise to exercise the rights of a shareholder with respect to, the Shares (or any shares of Common Stock issuable upon conversion of the Shares) or any other shares of the Company that may be acquired or controlled by the Investors.

4.4 Compliance with Other Instruments . The Company is not in violation or default of any provision of its Restated Articles of Incorporation or Bylaws, each as amended and in effect as of the First Amendment Effective Date. The execution and delivery of this First Amendment, and performance of and compliance with this First Amendment and the Securities Purchase Agreement as amended hereby will not (x) result in any default or violation of the Company’s Restated Articles of Incorporation (including the Amended Designations) or Bylaws, (y) result in any default or violation of any agreement relating to its material Indebtedness or under any mortgage, deed of trust, security agreement or lease to which it is a party or in any default or violation of any material judgment, order or decree of any Governmental Authority, or (z) be in conflict with or constitute, with or without the passage of time or giving of notice, a default under any such provision, require any consent or waiver under any such provision, or result in the creation of any mortgage, pledge, lien, encumbrance, or charge upon any of the properties or assets of the Company pursuant to any such provision, or the suspension, revocation, impairment or forfeiture of any material permit, license, authorization, or approval applicable to the Company, its business or operations, or any of its assets or properties pursuant to any such provision.

5. Consent to First Amendment . Upon the satisfaction of the conditions to the “First Amendment Effective Date” set forth in Section 6 of this First Amendment, each of the Company and the Investors party hereto hereby consents to the amendment of the Securities Purchase Agreement pursuant to and in accordance with this First Amendment. The Company acknowledges and agrees that it has verified in accordance with the Company’s register of capital stock that (1) as of the date hereof, each of the Investors identified on the signature page(s) to this First Amendment is the registered holder of Series A Preferred Stock and that, collectively, the Investors party hereto represent a majority of the shares of the Common Stock issuable or issued upon conversion of the Shares. Each Investor party hereto represents and warrants that it has not transferred any Shares registered in its name since the Closing.

6. Conditions to Effectiveness; Additional Covenants; Nullification .

6.1 Conditions to First Amendment Effective Date . The effectiveness of this First Amendment is subject to the satisfaction of each of the following conditions on the date hereof (such date, following the satisfaction of such conditions, is referred to herein as the “ First Amendment Effective Date ”):

(a) the receipt by the Company and the Investors of counterparts of this First Amendment which, when taken together, bear the signatures of the Company and each Investor;

(b) the receipt by the Company of Consents from Investors representing a majority of the Shares then outstanding and entitled to vote in favor of the adoption of the Amended Designations in accordance with Section 10(c)(ii) of the Statement of Designations and Article 4.03.C. of the TBCA;

(c) the Investors shall have received from (i) Baker Botts L.L.P., special Texas counsel to the Company, an opinion in the form attached hereto as Exhibit C-1 ; (ii) Dechert LLP, special counsel to the Company, an opinion in the form attached hereto as Exhibit D , and (iii) Hallett & Perrin, P.C., special Texas counsel to the Company, an opinion in the form attached hereto as Exhibit E , in each case dated as of the First Amendment Effective Date;

(d) the Company shall have entered into a director indemnification agreement, in the form set forth as Exhibit F hereto, with each of the New Directors;

(e) before and after giving effect to this First Amendment, the Company shall not be in breach of any of its covenants set forth in the Securities Purchase Agreement; and

(f) the representations and warranties contained in Section 4 of this First Amendment being true and correct.

6.2 Additional Covenants .

(a) The Company shall comply with the provisions of Section 2.2 hereof and, as soon as practicable thereafter, confirm that the Secretary of State of the State of Texas has endorsed as “Filed” the Amended Designations.

(b) Promptly following the issuance by the Secretary of State of the State of Texas of a certificate of amendment affixed to a copy of the Amended Designations, the Company shall cause Baker Botts L.L.P., special Texas counsel to the Company, to deliver to the Investors an opinion in the form attached hereto as Exhibit C-2 .

(c) The Company shall, promptly after the First Amendment Effective Date, pay all reasonable fees and expenses of the Investors, including without limitation the fees and disbursements of New York, Texas and fund counsel to the Investors and of accounting advisors to the Investors, incurred in connection with this First Amendment and the transactions contemplated hereby.

(d) For as long as any Shares remain outstanding, the Company shall from time to time provide written notice to the Investors of each Arrangement identified by management of the Company that falls within the scope of clause (y) of Section 2.21 of the Securities Purchase Agreement as amended by this First Amendment, promptly following the identification of such Arrangement.

(e) The parties agree to treat (i) the terms of this First Amendment as constituting an exchange of preferred stock for new preferred stock in a “reorganization” as defined in Section 368 of the Code, (ii) the “new” preferred stock as

being stock other than “nonqualified preferred stock” as defined in Section 351 of the Code and (iii) this First Amendment as constituting a “plan of reorganization” within the meaning of Treasury Regulation Section 1.368-3.

6.3 Nullification or Frustration of First Amendment .

(a) Notwithstanding any other provision hereof or the occurrence of the First Amendment Effective Date, if the Amended Designations is not delivered to the Secretary of State of the State of Texas for filing in accordance with Section 2.2 hereof and endorsed as “Filed” by the Secretary of State of the State of Texas on April 13, 2009, then this First Amendment shall be null and void and have no further effect, and the Securities Purchase Agreement shall continue in full force and effect without giving effect to the provisions of this First Amendment.

(b) If, after the First Amendment Effectiveness Date and the delivery of the Amended Designations to the Secretary of State of the State of Texas, the Secretary of State of the State of Texas does not accept or endorse as “Filed”, fails to issue a certificate of amendment affixed to a copy of, or otherwise rejects, the Amended Designations for any reason, then the parties hereto agree, as promptly and expeditiously as practicable, to negotiate in good faith over any modifications to the Amended Designations reasonably necessary in order to give effect to the intent of the parties hereto and successfully deliver a revised Amended Designations to the Secretary of State of the State of Texas for filing and, upon approval by each party hereto, to deliver such revised Amended Designations to the Secretary of State of the State of Texas for filing at a time to be mutually agreed.

7. Further Assurances . At any time and from time to time, upon any Investor’s request and at the sole expense of the Company, the Company will promptly and duly execute and deliver any and all further instruments and documents and take such further action as such Investor reasonably deems necessary to effect the purposes of this First Amendment.

8. Full Force and Effect . This First Amendment and the Amended Designations shall be limited precisely as written and, except as expressly set forth herein and in the Amended Designations, this First Amendment and the Amended Designations shall not be deemed (a) to be a consent granted pursuant to, or a waiver or modification of, any other term or condition of the Securities Purchase Agreement, the Statement of Designations or any of the instruments or agreements referred to therein or (b) to prejudice any right or rights which the Investors may now have or have in the future under or in connection with the Securities Purchase Agreement, the Statement of Designations or any of the instruments or agreements referred to therein. The Securities Purchase Agreement and the Registration Rights Agreement shall continue in full force and effect in accordance with the provisions thereof on the date hereof and are hereby ratified and affirmed.

9. References . As used in the Securities Purchase Agreement, (x) the terms “Agreement”, “this Agreement”, “herein”, “hereafter”, “hereto”, “hereof” and words of similar import shall, unless the context otherwise requires, mean the Securities Purchase Agreement as amended by this First Amendment, and (y) the term “Statement of Designations” shall, unless the context otherwise requires, mean the Amended Designations.

10. Miscellaneous .

10.1 Governing Law . This First Amendment shall be governed in all respects by the laws of the State of New York without regard to choice of laws or conflict of laws provisions thereof that would require the application of the laws of any other jurisdiction.

10.2 Time is of the Essence . The parties acknowledge and agree that time is of the essence in the performance of the provisions of this First Amendment, including, without limitation, Sections 2.2, 6.2(a) and 6.3(b) hereof.

10.3 Survival . The representations and warranties in this agreement shall expire at the First Amendment Effective Date and have no further force and effect. Notwithstanding the foregoing or any other provision of this First Amendment, survival of the representations and warranties set forth in the Securities Purchase Agreement, after giving effect to this First Amendment, shall be governed by Section 15.3 of the Securities Purchase Agreement, after giving effect to this First Amendment.

10.4 Counterparts . This First Amendment may be executed in any number of counterparts and signatures may be delivered by facsimile or in electronic format (i.e., “PDF”), each of which may be executed by less than all parties, each of which shall be enforceable against the parties actually executing such counterparts, and all of which together shall constitute one instrument.

10.5 Titles and Subtitles . The titles and subtitles used in this First Amendment are used for convenience only and are not to be considered in construing or interpreting this Agreement.

[THIS SPACE LEFT BLANK INTENTIONALLY]

IN WITNESS WHEREOF , the parties have executed this First Amendment as of the date first above written.


WHOLE FOODS MARKET, INC.

By:		/s/ Roberta Lang
Name:		Roberta Lang
Title:		Global Vice President of Legal Affairs, Secretary and General Counsel

SIGNATURE PAGE TO THE WHOLE FOODS MARKET, INC.

AMENDMENT No. 1 to STOCK PURCHASE AGREEMENT


GREEN EQUITY INVESTORS V, L.P.

By:		GEI Capital V, LLC, its General Partner

By:		/s/ Jonathan A. Seiffer
Name:		Jonathan A. Seiffer
Title:


GREEN EQUITY INVESTORS SIDE V, L.P.

By:		GEI Capital V, LLC, its General Partner

By:		/s/ Jonathan A. Seiffer
Name:		Jonathan A. Seiffer
Title:


THYME COINVEST, LLC

By:		GEI Capital V, LLC, its Managing Member

By:		/s/ Jonathan A. Seiffer
Name:		Jonathan A. Seiffer
Title:

SIGNATURE PAGE TO THE WHOLE FOODS MARKET, INC.

AMENDMENT No. 1 to STOCK PURCHASE AGREEMENT

EXHIBIT A

FORM OF CONSENT

UNANIMOUS WRITTEN CONSENT

OF THE HOLDERS OF

SERIES A 8.00% REDEEMABLE CONVERTIBLE EXCHANGEABLE

PARTICIPATING PREFERRED STOCK

WHOLE FOODS MARKET, INC.

Pursuant to Article 9.10.A of the

Texas Business Corporation Act

The undersigned, constituting all of the holders of the Series A 8.00% Redeemable Convertible Exchangeable Participating Preferred Stock, par value $0.01 per share (the “ Series A Preferred Stock ”), of Whole Foods Market, Inc., a Texas Corporation (the “ Company ”), acting pursuant to the authority conferred in Article 9.10.A of the Texas Business Corporation Act and the Amended and Restated Articles of Incorporation of the Company, do hereby consent to the approval and adoption of the following resolutions to the same extent and to have the same force and effect as if approved and adopted at a meeting at which holders of all shares of the Company entitled to vote on a proposal to approve and adopt such resolutions were present and voted:

WHEREAS, the board of directors of the Company has duly adopted resolutions that, among other things, set forth the terms of a proposed amendment to the Company’s Restated Articles of Incorporation amending and restating the designations, preferences and relative rights of the Series A Preferred Stock in the form attached hereto as Exhibit A (the “ Amended Designations ”) and directing that such Amended Designations be submitted to the Company’s shareholders for approval; and

WHEREAS, pursuant to Section 10(c)(ii) of the Statement of Designations of the Preferred Stock, as long as any shares of the Series A Preferred Stock are outstanding, in addition to any other vote or consent of shareholders required by law or the Company’s

Amended and Restated Articles of Incorporation, the vote or consent of the holders of at least a majority of the shares of Series A Preferred Stock then outstanding and entitled to vote thereon, given in person or by proxy, either in writing without a meeting or by vote at any meeting called for the purpose, shall be necessary for effecting or validating any amendment, alteration or repeal of any provisions of the Amended and Restated Articles or Bylaws of the Company so as to adversely affect the relative rights, preferences, privileges or voting powers of the Series A Preferred Stock.

NOW, THEREFORE, BE IT RESOLVED, each of the undersigned hereby votes all of the shares of Series A Preferred Stock held by such person in favor of, and consents to, the adoption of the Amended Designations.

IN WITNESS WHEREOF, the undersigned have executed this consent on the dates written below.


GREEN EQUITY INVESTORS V, L.P.

By:		GEI Capital V, LLC, its General Partner

By:
Name:
Title:
Shares of Series A Preferred Stock: 324,515
Date:		April , 2009


GREEN EQUITY INVESTORS SIDE V, L.P.

By:		GEI Capital V, LLC, its General Partner

By:
Name:
Title:
Shares of Series A Preferred Stock: 97,344
Date:		April , 2009


THYME COINVEST, LLC

By:		GEI Capital V, LLC, its Managing Member

By:
Name:
Title:
Shares of Series A Preferred Stock: 3,141
Date:		April , 2009

Exhibit A

to Unanimous Written Consent

Form of Amended Designations

Filed as Exhibit 3.1 to the Current Report on Form 8-K filed with the Securities and Exchange Commission on April 16, 2009.

EXHIBIT B

FORM OF AMENDED DESIGNATIONS

Filed as Exhibit 3.1 to the Current Report on Form 8-K filed with the Securities and Exchange Commission on April 16, 2009.

EXHIBIT C-1

FORM OF OPINION OF BAKER BOTTS L.L.P.,

SPECIAL TEXAS COUNSEL TO THE COMPANY

1. The Company is a corporation incorporated under the Texas Business Corporation Act (the “ TBCA ”) and is validly existing and in good standing under the laws of the State of Texas.

2. The Company has the requisite corporate power and authority to execute, deliver and perform all of its obligations under the First Amendment and the Amended Designations.

3. The filing of the Amended Designations with the Secretary of State of the State of Texas has been duly authorized by all necessary corporate action of the Company and by all necessary action of the Company’s shareholders. Without limiting the foregoing, pursuant to Article 4.03.C of the TBCA, no action by the holders of any outstanding shares of any class or series of the Company’s capital stock (other than the holders of the Series A Preferred Stock) is required in connection with the filing of the Amended Designations with the Secretary of State of the State of Texas. The Amended Designations, when a certificate of amendment affixed to a copy thereof is issued by the Secretary of State of the State of Texas, will be effective as an amendment to the Company’s Articles of Incorporation in accordance with the TBCA.

4. The First Amendment has been duly authorized by all necessary corporate action of the Company, and has been duly executed and delivered by the Company.

5. The execution and delivery of the First Amendment and the consummation by the Company of the transactions contemplated by the First Amendment that are scheduled to occur on the First Amendment Effectiveness Date do not on the date hereof:

(i) violate the Company’s Articles of Incorporation or By-Laws as in effect immediately before the First Amendment Effectiveness Date (taken together, the “ Governing Documents ”);

(ii) violate any Texas statute, Texas rule or Texas regulation applicable to the Company; or

(iii) require any consents, approvals, or authorizations to be obtained by the Company from, or any registrations, declarations or filings (other than the filing of the Amended Designations with the Secretary of State of the State of Texas) to be made by the Company with, any governmental authority under any Texas statute, Texas rule or Texas regulation applicable to the Company on or prior to the date hereof that have not been obtained or made, except as may be required under state securities laws.

6. The restrictions on business combinations contained in Article 13.03.A of the TBCA and Section 21.606 of the Texas Business Organizations Code do not apply with

respect to or as a result of this First Amendment, the Amended Designations and the transactions contemplated hereby and thereby, including the issuance of Common Stock upon conversion of the Shares.

7. The authorized capital stock of the Company consists of 300,000,000 shares of Common Stock, with no par value (“ Common Stock ”), and 5,000,000 shares of Preferred Stock (“ Preferred Stock ”), par value $0.01.

EXHIBIT C-2

FORM OF OPINION OF BAKER BOTTS L.L.P.,

SPECIAL TEXAS COUNSEL TO THE COMPANY

1. The Company has the requisite corporate power and authority to perform all of its obligations under the Restated Articles.

2. The Amended Designations has been filed with, and accepted by, the Secretary of State of the State of Texas and has become effective as an amendment to the Company’s Articles of Incorporation in accordance with the Texas Business Corporation Act.

3. The consummation by the Company of the transactions contemplated by the First Amendment that were scheduled to occur commencing on the first business day after the First Amendment Effective Date and prior to or on the date hereof do not on the date hereof:

(i) violate the Company’s Articles of Incorporation or By-Laws as in effect immediately before the First Amendment Effectiveness Date (taken together, the “ Governing Documents ”);

(ii) violate any Texas statute, Texas rule or Texas regulation applicable to the Company; or

(iii) require any consents, approvals, or authorizations to be obtained by the Company from, or any registrations, declarations or filings to be made by the Company with, any governmental authority under any Texas statute, Texas rule or Texas regulation applicable to the Company on or prior to the date hereof that have not been obtained or made, except as may be required under state securities laws.

4. The shares of Common Stock issuable upon conversion of the Shares have been duly and validly reserved for issuance, and assuming that they were issued and delivered upon conversion of the Shares on the date hereof in accordance with the terms of the Restated Articles, would be validly issued, fully paid and nonassessable and free of preemptive rights arising from the Governing Documents. The rights, preferences and privileges of the Shares included in the Restated Articles are permitted by the TBCA.

EXHIBIT D

FORM OF OPINION OF DECHERT LLP,

SPECIAL COUNSEL TO THE COMPANY

1. Assuming the due authorization, execution and delivery of each of the Transaction Documents under the laws of the State of Texas, each of the First Amendment and the Purchase Agreement as amended by the First Amendment constitutes a valid and legally binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to the Enforceability Exception.

2. The execution and delivery by the Company of each of the Transaction Documents and the performance by the Company of its obligations under the First Amendment and the Purchase Agreement as amended by the First Amendment will not result in:

(i) a violation or breach of or constitute a default under the Material Agreements listed on Annex I hereto, except that the opinion expressed in this paragraph solely with respect to the third and fourth Material Agreements set forth on Annex I hereto is qualified as to our knowledge; or

(ii) a violation or breach of any statute, rule, regulation or order known to us to be applicable to the Company of a U.S. federal or New York governmental agency or body or any U.S. federal or New York court having jurisdiction over the Company.

3. No consent, approval, authorization or order of, or filing with any U.S. federal governmental agency or body or any U.S. federal court is required to be obtained or made by the Company for the consummation of the transactions contemplated by the First Amendment or the Purchase Agreement as amended by the First Amendment, other than (i) such as may be required under state securities or blue sky laws (as to which we express no opinion) and (ii) such as have been obtained prior to the date hereof.

EXHIBIT E

FORM OF OPINION OF HALLETT & PERRIN, P.C.

SPECIAL TEXAS COUNSEL TO THE COMPANY

The execution and delivery of the First Amendment and the consummation by the Company of the transactions contemplated by the First Amendment that are scheduled to occur on the First Amendment Effectiveness Date or the first business day thereafter do not on the date hereof result in the breach of or a default under any of the agreements listed on Schedule A hereto.

EXHIBIT F

FORM OF DIRECTOR INDEMNITY

Filed as Exhibit 10.2 to the Current Report on Form 8-K filed with the Securities and Exchange Commission on April 16, 2009.

Exhibit 10.2

INDEMNIFICATION AND HOLD HARMLESS AGREEMENT

THIS INDEMNIFICATION AND HOLD HARMLESS AGREEMENT (this “ Agreement ”) is made as of April 12, 2009, by and between Whole Foods Market, Inc., a Texas corporation (the “ Company ”), Whole Foods Market Services, Inc., Whole Foods Market Group, Inc., and Mrs. Gooch’s Natural Food Markets, Inc. (collectively, the “ Subsidiaries ”) , and (“ Indemnitee ”).

WHEREAS, in order to incentivize Indemnitee to serve, or to continue to serve, as a director, officer or agent of the Company, one of its subsidiaries, affiliates or regions (in any such case, the “ Service ”), the Company has agreed to indemnify Indemnitee as set forth below;

NOW, THEREFORE, in consideration of the foregoing and certain other good and valuable consideration, the receipt of which is hereby acknowledged, the parties, intending to be legally bound, hereby agree as follows:

1. Indemnification . Effective as of the original date of Indemnitee’s beginning Service, the Company and the Subsidiaries shall indemnify Indemnitee and hold Indemnitee harmless if the Indemnitee is a party or participant (including non-party witness or otherwise) or is threatened to be made a party or participant (including non-party witness or otherwise) to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative, arbitrative or investigative, and in any appeal in such action, suit or proceeding, and in any inquiry or investigation that could lead to such an action, suit or proceeding, against any and all liabilities, obligations (whether known or unknown, or due or to become due or otherwise), judgments, fines, fees, penalties, interest obligations, deficiencies, other actual losses (for example, verifiable lost income related to time spent defending such claim or action) and reasonable expenses (including, without limitation, amounts paid in settlement, interest, court costs, costs of investigators, reasonable fees and expenses of attorneys, accountants, financial advisors and other experts, any federal, state, local or foreign taxes imposed on the Indemnitee as a result of the actual or deemed receipt of any payments under this Agreement, and excise taxes and penalties ) incurred or suffered by Indemnitee in connection with such action, suit or proceeding arising out of or pertaining to any actual or alleged action or omission which arises out of or relates to the fact that Indemnitee is or was serving as a director or officer of the Company or at the request of the Company as a director, officer, trustee, employee, or agent of or in any other capacity for another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise (including any region of the Company), to the fullest extent permitted by applicable law or the Company’s Articles of Incorporation and Bylaws, each as amended (but in the case of any such amendment, only to the extent that such amendment permits the Company to provide the same or broader indemnification rights than permitted prior thereto) (each such liability, obligation, judgment, fine, fee, penalty, interest obligation, deficiency, other actual losses, and reasonable expenses being referred to herein as a “Loss,” and collectively, as “Losses” ). Any Loss incurred by Indemnitee shall be paid by the Company to Indemnitee on a regular monthly basis. This indemnity applies even if the Indemnitee caused the Loss through his or her negligence, strict liability, other fault or otherwise; however, if it is determined by final judicial decision from which there is no further right to appeal that indemnification of the Indemnitee under this Agreement or otherwise is not permitted by applicable law (any such Loss, a “Non-Indemnification Loss”), Indemnitee shall repay

to the Company within forty-five (45) days of the issuance of such final judicial decision the amount of such Now-Indemnification Loss paid on behalf of Indemnitee hereunder that is so determined not to be permitted. The indemnification rights provided hereby to Indemnitee shall continue even though he or she may have ceased to be a director, officer, trustee, employee, or agent of or in any other capacity for the applicable entity.

2. Notice and Coverage Prior to Notice . Indemnitee shall give notice (the “Notice” ) to the Company within five days after actual receipt of service or summons related to any action begun in respect of which indemnity may be sought hereunder or actual notice of assertion of a claim with respect to which he seeks indemnification; provided, however, that the Indemnitee’s failure to give such notice to the Company within such time shall not relieve the Company from any of its obligations under Section 1 of this Agreement except to the extent the Company has been materially prejudiced by Indemnitee’s failure to give such notice within such time period. Upon receipt of the Notice, the Company shall assume the defense of such action, whereupon the Indemnitee shall not be liable for any reasonable fees or expenses of counsel for Indemnitee or any other Losses incurred with respect to the matters set forth in the Notice and the Company shall reimburse the Indemnitee for all reasonable expenses related to the action or claim incurred by the Indemnitee prior to the Indemnitee’s giving of the Notice. Notwithstanding the foregoing, Indemnitee shall be entitled to retain counsel and shall be reimbursed in full for all of the fees and expenses of such counsel in the event that (i) the Company fails to assume the defense of Indemnitee when it is required to do so hereunder, (ii) counsel proposed by the Company in fulfillment of its indemnification obligations hereunder is not reasonably acceptable to the Indemnitee or (iii) there is a potential conflict of interest among Indemnitee and one or more other persons or entities represented by counsel proposed by the Company in fulfillment of its indemnification obligations hereunder. Any reimbursement of expenses or fees made to Indemnitee pursuant to this paragraph will be made as soon as practicable following Indemnitee’s substantiation of the amount and type of expenses and fees so incurred but in no event later than the last day of the Indemnitee’s taxable year following the taxable year in which the expense was incurred. The amount of expenses and fees reimbursed to Indemnitee during a given taxable year of Indemnitee shall not impact the amount of such expenses and fees that may be reimbursed pursuant to this paragraph during any subsequent taxable year of Indemnitee and such right to reimbursement is not subject to liquidation or exchange for another benefit.

3. Non-Exclusivity . The rights of Indemnitee hereunder shall be in addition to any rights that Indemnitee may have under the Company’s governance documents (e.g. Articles of Incorporation, By-laws, etc.), applicable law, any agreement, a vote of stockholders or a resolution of directors, or otherwise and shall survive any termination, resignation, death or other dismissal of Indemnitee.

4. Insurance . To the extent the Company maintains, at its expense, an insurance policy or policies providing liability insurance with respect to the acts or omissions covered by this Agreement, Indemnitee shall be covered by such policy or policies, in accordance with its or their terms, to the maximum extent of the coverage available there under.

5. Payment . The Company shall not be liable to Indemnitee under this Agreement to make any payment in connection with any claim against Indemnitee to the extent the Indemnitee has otherwise actually received, and is entitled to retain, payment (under any insurance policy or

otherwise) of the amounts otherwise indemnifiable hereunder. Notwithstanding the foregoing, the Company, the Subsidiaries and Indemnitee agree that Indemnitee has no obligation to pursue or exhaust any remedy against any third party, other than to reasonably cooperate with the Company and its insurer.

6. Enforceability . The indemnification contained in this Agreement shall be binding upon and inure to the benefit of and be enforceable by the parties hereto and their respective successors, assigns (including any direct or indirect successor by purchase, merger, consolidation, liquidation or otherwise to all or substantially all of the business and/or assets of the Company), spouses, heirs and personal and legal representatives.

7. Binding Obligation . If this Agreement or any portion hereof shall be found to be invalid on any ground by any court of competent jurisdiction, then the Company shall nevertheless indemnify and hold harmless Indemnitee, as to costs, charges and expenses (including court costs and attorneys’ fees), judgments, fines, penalties and amounts paid in settlement with respect to any action, suit or proceeding, whether civil, criminal, administrative, arbitrative or investigative, and in any appeal in such action, suit or proceeding, and in any inquiry or investigation that could lead to such an action, suit or proceeding, to the full extent permitted by any applicable portion of this Agreement that shall not have been invalidated and to the fullest extent permitted by applicable law.

8. Governing Law; Venue . This Agreement shall be construed in accordance with and governed by the laws of the State of Texas, without regard to the principles of conflicts of laws. The parties agree that any litigation directly or indirectly relating to this Agreement must be brought before and determined by a court of competent jurisdiction within Travis County, Texas, and the parties hereby agree to waive any rights to object to, and hereby agree to submit to, the jurisdiction of such courts.

9. Right to Sue; Attorneys’ Fees and Costs . If a claim by Indemnitee for payment of Losses hereunder is not paid in full by the Company within five (5) days after a written claim has been delivered to the Company, Indemnitee may at any time thereafter bring suit against the Company and/or the Subsidiaries to recover the unpaid amount of the claim. If successful in whole or in part in any such suit, Indemnitee shall be entitled to be paid also the reasonable costs and expenses of prosecuting such suit. Any such payment of costs and expenses will be made as soon as practicable following the issuance of the final judgment in such suit but in no event later than the last day of the Indemnitee’s taxable year following the taxable year in which the costs and expenses were incurred. The amount of costs and expenses reimbursed to Indemnitee during a given taxable year of Indemnitee shall not impact the amount of such costs and expenses that may be reimbursed pursuant to this paragraph during any subsequent taxable year of Indemnitee and such right to reimbursement is not subject to liquidation or exchange for another benefit. In any suit brought by Indemnitee to enforce any right hereunder (including, without limitation, the right to indemnification), the burden of proving that Indemnitee is not entitled to such right shall be borne by the Company. If a claim by the Company for repayment of any Non-Indemnification Losses previously paid on behalf of Indemnitee hereunder is not repaid in full to the Company within forty-five (45) days after such ruling has been delivered to Indemnitee, the Company may at any time thereafter bring suit against the Indemnitee to recover the unpaid amount.

10. Successors and Assigns . This Agreement shall be binding upon and shall inure to the benefit of the heirs, successors and assigns of each party to this Agreement.

11. Amendment . This Agreement may be amended, modified or supplemented only by a written instrument executed by each of the parties hereto.

12. Facsimile and Counterpart Signature . This Agreement may be executed by facsimile signature and in one or more counterparts, each of which shall for all purposes be deemed an original and all of which shall constitute the same instrument, but only one of which need be produced.

13. Enforcement . The Company and the Subsidiaries each expressly confirms and agrees that it has entered into this Agreement on behalf of themselves and assumed the obligations imposed on them hereby in order to induce Indemnitee to serve as a director or officer of the Company, and the Company acknowledges that Indemnitee is relying upon this Agreement in serving as a director or officer of the Company.

14. Contribution . To the fullest extent permissible under applicable law, if the indemnification provided for in this Agreement is unavailable to Indemnitee for any reason whatsoever, the Company and/or the Subsidiaries, in lieu of indemnifying Indemnitee, shall contribute to the amount incurred by Indemnitee, whether for judgments, fines, taxes, penalties, excise taxes, amounts paid or to be paid in settlement and/or for costs and expenses (collectively “Expenses”), in connection with any claim relating to an indemnifiable event under this Agreement, in such proportion as is deemed fair and reasonable in light of all of the circumstances of such action, suit or proceeding in order to reflect (i) the relative benefits received by the Company and Indemnitee as a result of the event(s) and/or transaction(s) giving cause to such action, suit or proceeding; and/or (ii) the relative fault of the Company (and its directors, officers, employees and agents) and Indemnitee in connection with such event(s) and/or transaction(s). The amounts so contributed will be paid to Indemnitee as reimbursement for such Expenses as soon as practicable following Indemnitee’s substantiation of the amount of such Expenses but in no event later than the last day of the Indemnitee’s taxable year following the taxable year in which the expense was incurred. The amount of Expenses reimbursed to Indemnitee during a given taxable year of Indemnitee shall not impact the amount of such Expenses that may be reimbursed pursuant to this paragraph during any subsequent taxable year of Indemnitee and such right to reimbursement is not subject to liquidation or exchange for another benefit.

15. Severability . In the event that any one or more of the provisions contained in this Agreement or any application thereof shall be invalid, illegal or unenforceable in any respect, the validity, legality or enforceability of the remaining provisions of this Agreement and any other application thereof shall not in any way be affected or impaired thereby; provided, that to the extent permitted by applicable law, any invalid, illegal or unenforceable provision may be considered for the purpose of determining the intent of the parties in connection with the other provisions of this Agreement.

16. [ Green Indemnitees . The Company hereby acknowledges that any Indemnitee who is a nominee of Leonard Green & Partners, L.P. and certain of its affiliates (each, a “Green

Indemnitee”) has certain rights to indemnification, advancement of expenses and/or insurance provided by Leonard Green & Partners, L.P. and certain of its affiliates (collectively, the “Fund Indemnitors”). The Company hereby agrees (i) that it is the indemnitor of first report (i.e., its obligations to any Green Indemnitee are primary and any obligation of the Fund Indemnitors to advance expenses or to provide indemnification for the same expenses or liabilities incurred by any Green Indemnitee are secondary), (ii) that it shall be required to advance the full amount of expenses incurred by any Green Indemnitee and shall be liable for the full amount of all Expenses, judgments, penalties, fines and amounts paid in settlement to the extent legally permitted and as required by the terms of this Agreement or the Certificate of Incorporation or Bylaws of the Company (or any other agreement between the Company and any Green Indemnitee), without regard to any rights any Green Indemnitee may have against the Fund Indemnitors, and, (iii) that irrevocably waives, relinquishes and releases the Fund Indemnitors from any and all claims against the Fund Indemnitors for contribution, subrogation or any other recovery of any kind in respect thereof. The Company further agrees that no advancement or payment by the Fund Indemnitors on behalf of any Green Indemnitee with respect to any claim for which Indemnittee has sought indemnification from the Company shall affect the Foregoing and the Fund Indemnitors shall have a right of contribution and/or be subrogated to the extent such advancement or payment to all of the rights of recovery of any Green Indemnitee against the Company. The Company and any Green Indemnitee agree that the Fund Indemnitors are express third party beneficiaries of the terms of this Section 16.] [Include, as appropriate.]

17. Section 409A . The parties acknowledge and agree that the indemnification provisions herein are intended to constitute an indemnification plan within the meaning of Treasury Regulation Section 1.409A-1(b)(10) that does not provide for a deferral of compensation within the meaning of Section 409A of the Internal Revenue Code of 1986, as amended (“Section 409A”) with respect to any “bona fide claim” (as described in Treasury Regulation Section 1.409A-1(b)(10)) involving the actions or failures to act by the Indemnitee in his capacity as a service provider to the Company and its Subsidiaries. Notwithstanding the foregoing, in the event that any provisions herein are determined to provide for any deferral of compensation that is subject to Section 409A, such provisions are intended to comply with Section 409A and shall be interpreted accordingly.

[Signature Page Follows]

IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first above written.


Company :

Whole Foods Market, Inc.

By:
Name:
Title:

Subsidiaries :

Whole Foods Market Services, Inc.

By:
Name:
Title:

Whole Foods Market Group, Inc.

By:
Name:
Title:

Mrs. Gooch’s Natural Food Markets, Inc.

By:
Name:
Title:

Indemnitee :


Name: