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Registration No. 333-29111
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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FRESH FOODS, INC.
(exact name of Registrant as specified in its charter)
POST OFFICE BOX 399
CLAREMONT, NORTH CAROLINA 28610
(828) 459-7626
(address and telephone number of
Registrant's principal executive offices)
NORTH CAROLINA 56-0945643
(State of Incorporation) (I.R.S. Employer
Identification No.)
FRESH FOODS, INC. 1987 SPECIAL STOCK OPTION PLAN
(Full Title of Plan)
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JAMES E. HARRIS
Fresh Foods, Inc.
P.O. Box 399
Claremont, North Carolina 28610
(828) 459-7626
(Name, address, and telephone number of agent for service of process.)
Copy to:
J. R. SIMPSON II
Simpson Aycock, P.A.
204 East McDowell Street
Morganton, North Carolina 28655
(828) 437-9744
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Information required by Part I of Form S-8 to be contained in the Section 10(a)
prospectus is omitted from this Registration Statement in accordance with Rule
428 under the Securities Act of 1933, as amended (the "Securities Act").
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by Fresh Foods, Inc. ("Fresh Foods") with
the Securities and Exchange Commission are incorporated in this Registration
Statement by reference, except to the extent that any statement or information
therein is modified, superseded or replaced by information contained in any
other subsequently filed document incorporated by reference.
1. The Registrant's latest annual report filed pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act").
2. All other reports filed pursuant to Section 13(a) or l5(d) of
the Exchange Act since the end of the fiscal year covered by the annual reports
referred to in (l), above.
3. The description of the common stock of the Registrant (the
"Common Stock") contained in a Registration Statement filed under the Exchange
Act, including any amendment or report filed for the purpose of updating such
description.
All documents subsequently filed by the Registrant or the Plan pursuant
to Section 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to filing of a
post-effective amendment which indicates that all shares of Common Stock offered
hereby have been sold or which deregisteres all shares of Common Stock then
remaining unsold, shall be deemed to be incorporated by reference herein and to
be part hereof from the date of the filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
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ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL.
The consolidated financial statements of the Company and its
subsidiaries as of February 27, 1998, and February 28, 1997, and for each of the
three years in the period ended February 27, 1998, and the related supplemental
schedules, incorporated herein by reference, have been audited by Deloitte &
Touche, LLP, independent auditors, as stated in their reports which are
incorporated herein by reference, and have been so incorporated in reliance upon
such reports given upon the authority of that firm as experts in accounting and
auditing.
ITEM 6. INDEMNIFICATION OF OFFICERS AND DIRECTORS.
There are no provisions in the Registrant's Restated Articles of
Incorporation, and no contracts between the Registrant and its directors and
officers nor resolutions adopted by the Registrant, relating to indemnification.
However, in accordance with the provisions of the North Carolina Business
Corporation Act (the "Act"), the Registrant has by resolution of its Board of
Directors provided that, in addition to the indemnification of directors and
officers otherwise provided by the Act, the Registrant shall to the fullest
extent allowed by law, indemnify its directors, executive officers and certain
other designated officers against any and all liability and litigation expenses,
including reasonable attorney's fees, arising out of their status or activities
as directors or officers, except for liability or litigation expense incurred on
account of activities that were at the time known or reasonably should have been
known by such director or officer to be clearly in conflict with the best
interests of the Registrant. As authorized by statute, the Registrant also
maintains insurance on behalf of its directors and officers against liability
asserted against such persons in such capacity whether or not such directors or
officers have the right to indemnification pursuant to statute, resolution or
otherwise.
In addition to the above-described provisions, Section 55-8-50 through
55-8-58 of the Act contain provisions prescribing the extent to which directors
and officers shall or may be indemnified. Section 55-8-51 of the Act permits a
corporation, with certain exceptions, to indemnify a present or former director
against liability if (I) he conducted himself in good faith, (ii) he reasonably
believes that his conduct in his official capacity with the corporation was in
its best interests and in all other cases his conduct was at least not opposed
to the corporation's best interest, and (iii) in the case of any criminal
proceeding, he had no reasonable cause to believe his conduct was unlawful. A
corporation may not indemnify a current or former director in connection with a
proceeding by or in the right of the corporation in which the director was
adjudged liable to the corporation or in connection with a proceeding charging
improper personal benefit to him. The above standard of conduct is determined by
the Board of Directors, or a committee thereof or special legal counsel or the
shareholders as prescribed in Section 55-8-55.
Sections 55-8-52 and 55-8-56 of the Act require a corporation to
indemnify a director or officer in the defense of any proceeding to which he was
a part because of his capacity as a director
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or officer against reasonable expenses when he is wholly successful in his
defense, unless the articles of incorporation provide otherwise. Upon
application, the court may order indemnification of the director or officer if
he is adjudged fairly and reasonably so entitled under Section 55-8-54. Section
55-8-56 allows a corporation to indemnify and advance expenses to an officer
employee or agent who is not a director to the same extent as a director or as
otherwise set forth in the corporation's articles of incorporation or bylaws or
by resolution of the Board of Directors.
In addition, Section 55-8-57 permits a corporation to provide for
indemnification of directors, officers, employees or agents, in its articles of
incorporation or bylaws or by contract or resolution, against liability in
various proceedings and to purchase and maintain insurance policies on behalf of
these individuals.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The exhibits filed herewith are set forth on the Exhibit Index filed as
part of this Registration Statement.
ITEM 9. UNDERTAKINGS.
(A) The undersigned Registrant hereby undertakes:
(1) to file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) to include any prospectus required by section 10(a)(3) of
the Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement.
(iii) to include any material information with respect to the
plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove by registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
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(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's Annual Report pursuant to Section 13(a) or Section 14(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of the
Plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934), that is incorporated by reference in the Registration Statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Claremont, State of North Carolina, on this 15th day
of August, 1998.
FRESH FOODS, INC.
By:/s/David R. Clark*
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David R. Clark, President
Pursuant to the requirements of the Securities Act of 1933, this registration
statement has been signed by the following persons in the capacities indicated
on August 15, 1998.
SIGNATURE CAPACITY
/s/Richard F. Howard* Chairman of the Board of Directors
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Richard F. Howard
/s/James C. Richardson, Jr.* Vice Chairman of the Board of
- -------------------------------- Directors (Principal Executive
James C. Richardson, Jr. Officer)
/s/David R. Clark* President and Director
- -------------------------------- (Principal Operating Officer)
David R. Clark
/s/James E. Harris* Executive Vice President
- -------------------------------- (Principal Financial Officer)
James E. Harris
/s/Noland M. Mewborn* Vice President - Finance
- -------------------------------- (Principal Accounting Officer)
Noland M. Mewborn
/s/William R. McDonald III* Director
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William R. McDonald III
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Director
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Bobby G. Holman
Director
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Norbert E. Woodhams
/s/Lewis C. Lanier* Director
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Lewis C. Lanier
Director
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L. Dent Miller
/s/E. Edwin Bradford* Director
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E. Edwin Bradford
Director
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William P. Foley
Director
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Andrew F. Puzder
Pursuant to the requirements of the Securities Act of 1933, the Plan
has duly caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Claremont, State of North
Carolina, on the 15th day of August, 1998.
FRESH FOODS, INC. 1987 SPECIAL STOCK
OPTION PLAN
By: /s/Richard F. Howard*
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Richard F. Howard
*By:/s/James R. Simpson II
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James R. Simpson II
Attorney-in-Fact
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit Sequentially
Number Exhibit Numbered Page
- ------ ------- -------------
<S> <C> <C>
(5) Opinion and Consent of Simpson Aycock, P.A., *
incorporated by reference from the
Registrant's original Registration Statement,
Exhibit 5 thereto.
23.1 Consent of Deloitte & Touche, incorporated by *
reference from the Registrant's Annual Report
on Form 10-K for the year ended February 27,
1998, Exhibit 23 thereto.
23.2 Consent of Simpson Aycock, P.A., is included *
with their opinion filed as Exhibit (5).
24 Third Amended Power of Attorney dated July 1, *
1997, which is incorporated by reference from
the Registrants' Post-Effective Amendment
No. 4, Exhibit 25, thereto.
24.1 Amendment to Power of Attorney
99.1 Fresh Foods, Inc. 1987 Incentive Stock Option *
Plan, which is incorporated by reference
from the Registrant's original Registration
Statement, Exhibit 4 thereto.
99.2 First Amendment to Fresh Foods, Inc. 1987 *
Incentive Stock Option Plan, which is
incorporated by reference from the
Registrant's Post-Effective Amendment
No. 4, Exhibit 4 thereto.
</TABLE>
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*Incorporated by reference.
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EXHIBIT 24.1
NORTH CAROLINA
AMENDMENT TO
CATAWBA COUNTY POWER OF ATTORNEY
WHEREAS, Fresh Foods, Inc., a North Carolina corporation, hereinafter
referred to as the "Company", the Fresh Foods, Inc. 1987 Special Stock Option
Plan, hereinafter referred to as the "Plan", and certain of the Company's
Officers and Directors, did on May 15, 1997, execute a Power of Attorney to
individually appoint David R. Clark, Matthew V. Hollifield, and James R. Simpson
II, and each of them, the agent and attorney-in-fact for each of them, to
execute and deliver, for and on behalf of each of them, a Registration Statement
on Form S-8, with the Securities and Exchange Commission pursuant to the
provisions of the Securities Act of 1933, as amended, and covering the Company's
registration of the Plan and 625,000 shares of its common stock, and any and all
amendments and post-effective amendments to such Registration Statement; and
WHEREAS, the Registration Statement was duly filed on June 12,
1997, as Registration No. 333-29111; and
WHEREAS, that since the execution of said Power of Attorney, the
undersigned James E. Harris has become Executive Vice President of the Company
and its principal financial officer, and the undersigned Noland M. Mewborn has
become Vice President - Finance of the Company and its principal accounting
officer; and both wish to join in the execution of said Power of Attorney;
NOW, THEREFORE
KNOW ALL MEN BY THESE PRESENTS, that the undersigned hereby
individually appoints David R. Clark, Matthew V. Hollifield and
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James R. Simpson II, and each of them, the agent and attorney-in-fact for the
undersigned, to execute and deliver for and on behalf of the undersigned, any
and all amendments and post-effective amendments to the Registration Statement
on Form S-8 for Registration No. 333-29111.
IN WITNESS WHEREOF, the undersigned individual has set his hand and
seal to the foregoing Amendment to Power of Attorney, this 15th day of August,
1998.
/s/ James E.Harris
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James E. Harris
Executive Vice President and
Chief Financial Officer
/s/ Noland M. Mewborn
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Noland M. Mewborn
Vice President - Finance and Chief
Accounting Officer
STATE OF NORTH CAROLINA
COUNTY OF CATAWBA
I, Rita B.Isenhour, a Notary Public, do hereby certify that the
aforesaid individuals personally appeared before me this day and acknowledged
the due execution of the foregoing instrument for the purposes therein
contained.
Witness my hand and seal, this 20th day of August, 1998.
/s/ Rita B.Isenhour
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Notary Public
My commission expires:July 28, 2002 .
