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Registration No. 33-79014
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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POST-EFFECTIVE AMENDMENT NO. 5
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. 1994 EMPLOYEE STOCK PURCHASE 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information therein is modified, superseded or replaced by information contained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 15(d) of the
Exchange Act since the end of the fiscal year covered by the annual reports
referred to in (1), 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 1993;
(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
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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.
(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 July, 1998.
FRESH FOODS, INC.
By: /s/David R. Clark*
-----------------------------
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 July 15, 1998.
SIGNATURE CAPACITY
/s/ Richard F. Howard* Chairman of the Board of Directors
- -----------------------------
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 and
- ----------------------------- Chief Financial Officer
James E. Harris (Principal Financial Officer)
/s/ Noland M. Mewborn* Vice President - Finance
- ----------------------------- (Principal Accounting Officer)
Noland M. Mewborn
/s/ William R. McDonald* Director
- -----------------------------
William R. McDonald
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/s/ Lewis C. Lanier* Director
- -----------------------------
Lewis C. Lanier
Director
- -----------------------------
Norbert E. Woodhams
Director
- -----------------------------
Bobby G. Holman
Director
- -----------------------------
L. Dent Miller
/s/ E. Edwin Bradford* Director
- -----------------------------
E. Edwin Bradford
Director
- -----------------------------
William P. Foley
Director
- -----------------------------
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 July, 1998.
FRESH FOODS, INC.
1994 EMPLOYEE STOCK PURCHASE PLAN
By: /s/ Richard F. Howard*
---------------------------------
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
Exhibit Sequentially
Number Exhibit Numbered Page
- --------------------------------------------------------------------------------
5 Opinion and Consent of Simpson Aycock, P.A., which is *
incorporated by reference from the Registrant's original
Registration Statement, Exhibit 5 thereto.
23.1 Consent of Deloitte & Touche, which is 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 Second Amended Power of Attorney dated June 26, 1997, which *
is incorporated by reference from the Registrant's
Post-Effective Amendment No. 4 to the Registration
Statement, Exhibit 24 thereto.
24.1 Amendment to Power of Attorney dated August 15, 1998.
99.1 Fresh Foods, Inc. 1994 Employee Stock Purchase Plan, which *
is incorporated by reference from the Registrant's original
Registration Statement, Exhibit 4(c) thereto.
99.2 Amendment to Fresh Foods, Inc. 1994 Employee Stock Purchase *
Plan, dated as of May 10, 1995, which is incorporated by
reference from the Registrant's Post-Effective Amendment 3
to the Registration Statement, Exhibit 4(b) thereto.
99.3 Second Amendment to Fresh Foods, Inc. Employee Stock *
Purchase Plan, dated as of August 30, 1995, which is
incorporated by reference from the Registrant's
Post-Effective Amendment 3 to the Registration Statement,
Exhibit 4(b) thereto.
99.4 Third Amendment to Fresh Foods, Inc. 1994 Employee Stock *
Purchase Plan, dated as of February 12, 1997, which is
incorporated by reference from the Registrant's
Post-Effective Amendment 4 to the Registration Statement,
Exhibit 4(d) thereto.
99.5 Declaration of Trust for the Fresh Foods, Inc. 1994 *
Employee Stock Purchase Plan, which is incorporated by
reference from the Registrant's original Registration
Statement, Exhibit 4(d) thereto.
99.6 Fresh Foods, Inc. Explanatory materials for Employees
- ----------------
* 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. 1994 Employee Stock Purchase
Plan, hereinafter referred to as the "Plan", and certain of the Company's
Officers and Directors, did on June 26, 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 150,000 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 May 17,
1994, as Registration No. 33-79014; 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. 33-79014.
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
---------------------------------------
Executive Vice President and
Chief Financial Officer
/s/ 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
---------------------------------------
Notary Public
My commission expires: July 28, 2002.
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Exhibit 99.6
Fresh Foods, Inc.
Employee Stock Purchase Plan (ESPP)
Sample Questions and Answers
1. What is the purpose of the Plan?
The purpose of the Employee Stock Purchase Plan (the "Plan") is to
offer eligible employees of Fresh Foods, Inc. and its subsidiaries
(collectively, "Fresh Foods" or the "Company") the opportunity to
acquire an ownership interest in Fresh Foods' common stock. However,
Fresh Foods is neither soliciting employees to acquire its shares nor
giving investment advice to employees.
2. Who is an eligible employee?
An eligible employee is an employee who meets the following criteria:
-- Is 18 years of age or older; and
-- Has been employed by the Company for at least 90
days.
3. Do I have to join the Plan?
No, the Plan is completely voluntary.
4. When can I join the Plan?
-- Eligible employees may elect to participate in the
Plan at any time by completing the
"Enrollment/Change" Form and delivering it to Susan
Chrestensen in the Human Resources Department.
-- Participation will be effective as of the first day
of the month following your election to participate
in the Plan.
5. What are the advantages of the Plan?
The Plan offers a convenient way to purchase Fresh Foods stock through
payroll deductions and encourages regular, scheduled investing. Through
periodic investments, you may purchase whole and partial shares of
Fresh Foods stock.
Maintenance of personal investment records is simplified because the
trustee of the Plan will provide to you a quarterly statement of your
account detailing the transactions and balance of Fresh Foods stock in
your account.
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Employee Stock Purchase Plan (ESPP)
Sample Questions and Answers
Page Two
6. How much do I pay for the stock?
The trustee will purchase shares of Fresh Foods stock from the Company,
from private sellers or on the open market and at such prices as the
Trustee may, in its discretion, determine. If the trustee purchases the
stock directly from the Company, the price will be the closing
over-the-counter bid price for the stock on the day the Company is
notified of the trustee's intention to purchase the stock.
Stock prices fluctuate by the minute, depending upon the supply and
demand of the stock. Generally, the closing sales price of Fresh Foods
common stock on the NASDAQ Stock Exchange on any given date will
establish the market value per share.
Your exact cost will be communicated to you on the quarterly activity
statement sent to you by the trustee.
7. What is the policy for matching Participating Employees' contributions?
All employee contributions to the Plan are matched by the Company in an
amount equal to 25% of the Employee's contribution during the month.
8. What are the vesting policies of the Plan?
-- A participating employee has a 100% non-forfeitable
interest in the balances credited to his/her account.
-- Your contributions vest at the time the money is
deducted from your salary.
-- The Company's matching contribution vests at the time
it is received by the Trustee.
9. Is there a guarantee against loss under the Plan?
No. When investing in stocks, there is no guarantee against loss due to
market fluctuations. Each investor, in seeking the benefits of share
ownership, must also accept risks. Your investment in the Plan will be
affected by fluctuations in the stock market, the economy and the
profitability of the Company.
10. How can I find out the market price of my stock?
The Wall Street Journal and many local newspapers list the closing
sales price for NASDAQ stocks on a daily basis. The Company's trading
symbol is "FOOD" and stock information is listed most days in the
NASDAQ Stock Exchange Composite Transactions tables of the Wall Street
Journal under "Fresh Foods."
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Employee Stock Purchase Plan (ESPP)
Sample Questions and Answers
Page Three
11. How can I get information about Fresh Foods?
Fresh Foods' annual and quarterly reports filed with the SEC and the
Prospectus relating to this Plan, collectively, provide the most
current information about Fresh Foods and the Plan, respectively. You
may request copies from Susan Chrestensen in the Human Resources
Department or the Fresh Foods Corporate Office at (828) 459-3118. All
shareholders will receive annual reports, and may request quarterly
reports, from Fresh Foods Corporate Office (828) 459-3118.
12. How much money can I invest in this Plan?
Each participating employee will authorize an amount to be contributed
through payroll deductions. This amount may not be less than $10.00 per
payroll period nor more than 10% of the employee's base weekly salary
or wages and bonuses, as paid.
Company officers not compensated by the Company and members of the
Board of Directors may contribute up to $500 per month.
13. Can I stop or change the amount of my payroll deduction?
Yes. You may suspend or change the amount of your payroll deduction as
of the first payroll period of any calendar quarter simply by
completing an "Enrollment/Change" Form. This form should be turned into
Susan Chrestensen in the Human Resources Department no later than five
(5) business days prior to the effective payroll period.
14. If I suspend deductions, when may I resume contributions to the Plan?
If you choose to suspend your payroll deductions, you are eligible to
begin contributions again effective the first payroll period of the
next calendar quarter. You must complete an "Enrollment/Change" form
and deliver it to Susan Chrestensen in the Human Resources Department.
15. How is the stock purchased?
At the end of every month, the Company will remit funds (employee
contributions and the Company matches) to the Plan trustee. who will
then purchase shares for the Plan.
16. Will I receive interest on my accrued payroll deductions?
No. Interest will not be earned on any payroll deductions accumulated
in your account for the purchase of stock.
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Employee Stock Purchase Plan (ESPP)
Sample Questions and Answers
Page Four
17. How will I know the number of shares purchased through my payroll
deductions?
Quarterly activity statements will be sent to you by the trustee
detailing your total payroll deductions during the quarter, the number
of shares purchased, the purchase price of such shares, and the
beginning and ending share balances in your account.
18. Will I receive stock certificates when I purchase stock under the Plan?
No. The stock purchased for you under the Plan will be maintained in
your Plan account by the trustee.
19. What must I do to sell my shares and is there a cost to sell my shares?
You may withdraw from the plan at any time and request your shares in
certificate form. After receiving your certificates, you can take them
to a broker of your choice to sell.
20. How do I withdraw from the Plan?
If you choose to withdraw from the Plan, simply complete an
"Enrollment/Change" Form and return the form to Susan Chrestensen in
the Human Resources Department.
The trustee will then remit to you all whole share certificates
maintained in your account. Any uninvested cash balance, any uninvested
cash dividends and the value of fractional shares of stock will be
remitted to you by check.
21. If I withdraw from the Plan, how do I re-enter the Plan?
If you choose to withdraw from the Plan, you may not re-enter the Plan
for a six-month period following withdrawal.
22. When can I sell my stock?
Stock purchased under the Plan can be sold at any time after you
withdraw and receive your share certificates.
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Employee Stock Purchase Plan (ESPP)
Sample Questions and Answers
Page Five
23. What are the tax consequences of purchasing or selling my shares?
The portion of the purchase price of the stock attributable to the
Company's contribution is taxable as ordinary income and will be
included in your Form W-2 for the year in which it is contributed by
the Company. Cash dividends from the stock, whether reinvested into
stock or not, are gross income and will be included on a Form
1099-misc.
If you sell your stock after you withdraw from the plan, you may
recognize ordinary income in the amount of the difference between the
selling price and your tax basis in the stock.
Tax consequences from the purchase or sale of shares may differ among
participants in the Plan. Each participant should discuss specific tax
questions regarding participation in the Plan with his or her own tax
advisor. It is important to retain all statements received on your
account for income tax purposes.
24. Will I have the same rights as any other shareholders of Fresh Foods?
Yes. These rights include the right to vote the full shares held in
your account and receive information generally sent to shareholders
such as annual reports and proxy statements.
25. Will cash dividends be paid?
Fresh Foods does not anticipate the payment of any cash dividends at
this time. Any cash dividends paid in the future will be credited to
your account and used for the further purchase of stock. Such stock
will then be credited to your account.
26. May I continue in the Plan after I leave the Company?
No. Termination of employment constitutes an immediate involuntary
withdrawal from the Plan.
27. If I terminate my employment, what happens to my shares?
If you terminate employment, you will be sent an "Application of
Benefits" Form to complete and return to the Human Resources
Department. The Human Resources Department will then forward notice of
your termination along with the Application of Benefits to our Trustee,
who will then remit to you all whole share certificates maintained in
your account. Any uninvested cash balance, any uninvested cash
dividends and the value of fractional shares of stock will be remitted
to you by check.
28. Who should I contact about questions regarding the Plan?
You may contact Susan Chrestensen in Human Resources.
